Opinion
C041144.
7-7-2003
THE PEOPLE, Plaintiff and Respondent, v. DANTE LAWANN GRANVILLE, Defendant and Appellant.
On November 16, 2000, Roy Birdsong was walking down the street when he was confronted by defendant Dante Lawann Granville and another man. Birdsong was shot in the foot and twice in the back, paralyzing him from the waist down. When Birdsong fell to the ground, defendant put a gun to Birdsongs head. Just as defendant fired the gun, Birdsong pushed it away and the bullet missed his head. There had been a prior confrontation between defendant and Birdsong.
Detective Adlert Robinson, a 25-year veteran assigned to the gang unit for the prior 8 years, opined that Birdsong was shot for the benefit of the Meadowview Bloods because defendant, a member of the Meadowview Bloods, believed that Birdsong had disrespected him. Robinson further testified that the Meadowview Bloods is a criminal street gang which commits crimes including homicides, robberies, assaults, drive-by shootings, burglaries, and narcotics sales.
A jury convicted defendant of attempted premeditated murder of Birdsong (count one; Pen. Code, §§ 664/187, subd. (a); further section references are to this code) and assault with a firearm (count two; § 245, subd. (a)(2)). In connection with count one, the jury found true various firearm use allegations within the meaning of subdivisions (b), (c) and (d) of section 12022.53 and subdivision (a)(1) of section 12022.5. As to count two, the jury found true a personal use of a firearm allegation within the meaning of subdivisions (a) and (d) of section 12022.5, and a personal infliction of great bodily injury allegation within the meaning of subdivision (a) of section 12022.7. In connection with both counts, the jury found true a gang enhancement allegation ( § 186.22, subd. (b)(1)).
Sentenced to state prison, defendant appeals. His sole claim of error is that evidence does not support the gang enhancement. We disagree and will affirm the judgment as modified to impose the correct term for one of the firearm enhancements.
DISCUSSION
I
"Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the groups primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the groups members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.] [P] A pattern of criminal gang activity is defined as gang members individual or collective commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more enumerated predicate offenses during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.] The charged crime may serve as a predicate offense [citations], as can evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member. [Citation.]" (People v. Duran (2002) 97 Cal.App.4th 1448, 1457, emphasis added.)
In this case, one of the two predicate offenses necessary for a gang enhancement was asserted to be an assault by means of force likely to produce great bodily injury ( § 245) that occurred on January 3, 1999. ( § 186.22, subd. (e)(1) [assault by means of force likely to produce great bodily injury is an enumerated predicate offense for purposes of a gang enhancement].)
Viewed in the light most favorable to the judgment (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal. Rptr. 431, 606 P.2d 738), evidence of that offense was as follows:
Several members of the Meadowview Bloods had been denied entry into a bar in Old Sacramento based on their gang clothing. Outside the bar, a fight broke out, and several individuals were assaulted. An off-duty deputy sheriff offered assistance to a security guard who was attempting to break up the fight, but help was not needed. The deputy and four of his friends proceeded to Dennys Restaurant at 3rd and J Streets. At Dennys, the deputy saw 8 to 10 people at the door. Among the group were Danny Owens and Kenneth Mason, both of whom were "validated" members of the Meadowview Bloods, meaning that they had been involved in proven incidents of gang activity. Someone in the group identified the deputy as a sheriffs deputy. "One of the individuals sucker punched [the off-duty deputy sheriff] from behind. Kenneth Mason proceeded to assault [the deputy], knocked the officer down, along with about five or six other individuals. Danny Owens saw one of the deputys friends coming to help him, turned, broke that gentlemans nose and knocking him down. The sheriffs deputy was able to get himself off the ground and flee. He had two guys chasing him. About that time, thats when the fire department showed up, and one of our units. [The assailants] broke off their pursuit when they saw our squad unit."
Defendant contends this evidence was insufficient to support the gang enhancement predicate offense of assault with force likely to produce great bodily injury. This is so, he argues, because in his words (1) "assault requires an intentional act coupled with the knowledge that the act will probably and directly result in the application of force against another," and (2) "there was no evidence [that] Danny Owens committed such an intentional act." In defendants view: "All that was shown was that [Owens] turned and the person who was running to assist the deputy sheriff went to the floor with a broken nose. . . . [P] Thus, while one may speculate . . . that the injury was suffered as a result of an intentional act by Mr. Owens, that is a conclusion based on speculation rather than substantial evidence. The injury could also have occurred as a result of an inadvertent collision between the turning Mr. Owens and the approaching person, an event which would not constitute an assault." We are not persuaded.
No reasonable trier of fact would fairly interpret the evidence to mean that Owens accidentally broke the nose of the deputys friend. The only reasonable interpretation is that gang member Owens saw the person coming to help the deputy, turned toward that person, and intentionally hit him in the face with such force that it broke his nose and knocked him down. This constitutes assault by force likely to produce great bodily injury. (E.g., People v. Culton (1979) 92 Cal. App. 3d 113, 117, 154 Cal. Rptr. 672; see also In re Nirran W. (1989) 207 Cal. App. 3d 1157, 1162, 255 Cal. Rptr. 327.) Hence, the evidence was sufficient to establish a predicate offense for the gang enhancement.
II
The trial court orally imposed a consecutive, determinate term of 25 years for defendants personal discharge of a firearm causing great bodily injury ( § 12022.53, subd. (d)) in connection with the attempted murder. However, subdivision (d) of section 12022.53 specifies the term shall be an additional and consecutive term of "25 years to life." We modify the judgment accordingly. (People v. Scott (1994) 9 Cal.4th 331, 354, 885 P.2d 1040.)
DISPOSITION
The judgment is modified to impose a consecutive term of 25 years to life for the section 12022.53, subdivision (d), enhancement. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and to forward a certified copy of the amended abstract to the Department of Corrections.
We concur: DAVIS, J., and RAYE, J.