Opinion
B297332
02-23-2021
THE PEOPLE, Plaintiff and Respondent, v. SHAULT THOMAS GRAY et al., Defendants and Appellants.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant Shault Thomas Gray. Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant Dwayne Lemar Seymore. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA446306) APPEAL from judgments of the Superior Court of Los Angeles County, Mildred Escobedo, Judge. Affirmed in part, reversed in part, and remanded for resentencing of Shault Thomas Gray. Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant Shault Thomas Gray. Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant Dwayne Lemar Seymore. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted Shault Thomas Gray and Dwayne Lemar Seymore (together, "appellants") of attempted robbery and found gang allegations on the charge true. The jury also convicted Gray of attempted voluntary manslaughter and shooting at an occupied vehicle and found firearm enhancements on those charges true.
Appellants argue the trial court erred in admitting their statements to police acknowledging their membership in the Rolling 30's criminal street gang. Gray argues insufficient evidence supports his attempted robbery conviction, and appellants argue insufficient evidence supports the gang enhancements. Appellants further contend the prosecutor committed misconduct in her closing rebuttal argument by allegedly suggesting the jury need not find both prongs of the gang enhancements true. Appellants and respondent agree that corrections must be made to appellants' sentences.
We find none of appellants' contested claims has merit, but agree with appellants that certain sentencing errors must be corrected. We affirm the convictions, reverse Gray's sentence, modify Seymore's gang enhancements and presentence custody credits, and remand the matter to the trial court to resentence Gray and prepare amended abstracts of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
The amended information charged appellants with attempted second degree robbery in violation of Penal Code sections 664 and 211 (count 1), attempted willful, deliberate, and premeditated murder in violation of sections 664 and 187, subdivision (a) (count 2), and shooting at an occupied motor vehicle in violation of section 246 (count 3). The amended information alleged that appellants committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(C). The amended information also alleged that Gray personally used and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c), and personally and intentionally discharged a firearm which caused great bodily injury within the meaning of section 12022.53, subdivision (d). The amended information alleged that Seymore had been previously convicted of a serious and/or violent felony. (§§ 667, subds. (b)-(j); 1170.12, subd. (b).) Appellants pleaded not guilty to the charges and denied the special allegations. B. The Prosecution Case
All further statutory references are to the Penal Code.
The trial court bifurcated the prior conviction allegation from the trial on the underlying charges against Seymore. Seymore waived a jury trial on the prior conviction allegation and later admitted its truth.
1. The Attempted Robbery and the Shooting
On April 29, 2016, at approximately 2:30 p.m., Dareante Fisher and his girlfriend Christina Antonio went to the Slauson Super Mall on Slauson Avenue in Los Angeles to purchase jewelry. Fisher wore two gold chains around his neck. Antonio drove them to the mall in her car. Fisher and Antonio visited three jewelry stores. At the second store, Fisher noticed appellants following them. Appellants followed Fisher and Antonio to a third store.
Fisher and Antonio returned to Antonio's car. A few blocks from the mall, Seymore rear-ended Antonio's car. Fisher got out of the car to check for damage. Before leaving the car, Fisher put a BB gun in his waistband because he "knew something weird was going on." As Fisher looked at the bumper, Seymore ran up to him and attempted to steal his gold necklaces. Fisher recognized Seymore as one of the men who had followed Fisher and Antonio at the mall.
Fisher and Seymore "scuffle[d]"; Fisher grabbed Seymore and pushed him away. Fisher pulled the BB gun from his waistband and pointed it at Seymore, causing Seymore to flee. As Seymore ran away, Gray emerged from Seymore's car with a gun, crouched behind the car's door, and began shooting at Fisher. Gray shot approximately three times; one shot hit Fisher in the knee. Two shots hit Antonio's car.
Two Los Angeles Police Department detectives driving by noticed a commotion around a car on Slauson Avenue. They heard gunshots and saw Gray shooting at Fisher. One detective returned fire. Gray climbed through the rear passenger seat of Seymore's car into the driver's seat and drove away. A witness observed a gun thrown from the car. The police later recovered the gun with live ammunition.
Antonio drove Fisher away from the scene. Fisher was ultimately treated at a hospital. Gray abandoned the car and fled on foot. The police apprehended appellants separately nearby.
The police found three expended casings from a .380-caliber pistol at the scene. They also recovered a .380-caliber bullet from a tire on Antonio's car.
2. The Gang Expert Testimony
The prosecution introduced evidence of two predicate gang crimes. The prosecution's gang expert, Officer Eli Huacuja, testified that the Rolling 30's is a criminal street gang with primary activities including murder, robbery, and burglary, a common sign, and a claimed territory.
Huacuja testified that gang members commit crimes to enhance their reputations in the gang and that more serious crimes garner more respect. He explained that gang members frequently commit crimes together because they trust one another not to inform on each other and because they often have specific roles in perpetrating crimes. He also testified that gang members steal property to benefit the gang, including pawning the property to raise money for the gang.
Huacuja stated that the shooting occurred in a territory claimed by a different gang. He testified that gang members commit crimes in other gangs' territories to avoid identification and enhance their gang status, and that gang members often carry weapons into rival gang territory.
In response to a hypothetical based on the facts of the case, Huacuja opined that appellants committed the crimes in association with and for the benefit of the Rolling 30's gang.
3. The Gang Membership Evidence
The prosecution introduced evidence that Gray and Seymore had admitted their membership in the Rolling 30's to police officers on several occasions. Five officers testified to separate contacts with Seymore during which Seymore admitted membership in the gang, and three officers testified to separate contacts with Gray during which Gray admitted membership in the gang.
Seymore admitted to Officer Robert Smith during a traffic stop that he was a Rolling 30's member and his gang moniker was "Smurf." Seymore told Officer Tyler Whiteman during a traffic stop that he was a Rolling 30's member and that his moniker was "Dog." Whiteman testified that Seymore was with other Rolling 30's members during the stop. Officer Brian Frieson testified that Seymore admitted his Rolling 30's membership during a jaywalking stop and identified his moniker as "Tiny Smurf." Officer Julio Garcia testified that he contacted Seymore on foot and Seymore admitted his Rolling 30's membership and stated his moniker was "Smurf." Sergeant Mario Cardona testified that he contacted Seymore at a liquor store that is a "hang out" for the Rolling 30's, that Seymore was with another Rolling 30's member, and that Seymore admitted his Rolling 30's membership and "Smurf" moniker. Cardona also testified that Seymore had a tattoo on his forearm stating, "God forgives. Thirties don't."
Officer Smith testified that he had contacted Gray "more than once" on the street and Gray had admitted his Rolling 30's membership. Officer John Davis testified that Gray admitted his Rolling 30's membership during a traffic stop and that his moniker was "Midget." Gray was in the passenger seat, and Davis issued him a citation for failing to wear a seat belt. Officer Clifton Rose testified that during a detention for loitering, Gray admitted his membership in the Rolling 30's and stated his moniker was "Newborn G-Mike." Rose testified that Gray was with two other Rolling 30's members at the time. C. The Defense Case
Detective Todd Waymire testified Fisher told him he did not touch the BB gun until after the fight with Seymore. Waymire testified Fisher did not say he pointed the BB gun at Seymore, but rather that Fisher's shirt lifted during the fight and exposed the BB gun in his waistband. The parties stipulated that Fisher had a felony conviction for assault with a firearm. D. The Jury Verdicts and Sentencings
Appellants were tried together. The jury found Gray guilty of attempted robbery (count 1), attempted voluntary manslaughter as a lesser included offense of attempted murder (count 2), and shooting at an occupied motor vehicle (count 3). The jury found the gang allegation true on count 1 and the firearm allegations true on counts 2 and 3. The jury found Seymore guilty of attempted robbery (count 1) and found the gang allegation true on count 1. The jury found Seymore not guilty on counts 2 and 3.
The trial court sentenced Gray to an aggregate term of 17 years eight months. The court imposed the upper term of seven years for the vehicle shooting conviction, plus 10 years for the firearm enhancement pursuant to section 12022.53, subdivision (b), plus one-third of the middle term of two years (eight months) for the attempted robbery conviction. The court stayed the gang enhancement and stayed the term for the attempted voluntary manslaughter conviction pursuant to section 654.
The trial court sentenced Seymore to a term of 11 years on the attempted robbery charge. The court imposed the upper term of three years and doubled it to six years pursuant to the three strikes law. The court imposed five additional years for the gang enhancement. The trial court awarded Seymore 1,239 days of presentence custody credits, consisting of 1,077 actual days and 162 days of conduct credit.
DISCUSSION
A. The Trial Court Did Not Err in Admitting the Gang Membership Statements
Appellants argue the police obtained their admissions of gang membership in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and the trial court thus erred in admitting testimony about the gang admissions. Neither the law nor the record supports appellants' contention that the traffic stops and other police contacts during which they admitted their gang membership constituted custodial interrogations. The trial court did not err in admitting the gang membership statements.
1. Applicable Law
In reviewing the trial court's ruling on a claimed Miranda violation, "'we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from [those facts] whether the challenged statement was illegally obtained.'" (People v. Elizalde (2015) 61 Cal.4th 523, 530 (Elizalde).) The erroneous admission of a defendant's statements obtained in violation of the Fifth Amendment is reviewed for prejudice under the beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18. (Elizalde, at p. 542.) That test requires the prosecution "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, at p. 24.)
In Miranda, the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of [a] defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." (Miranda, supra, 384 U.S. at p. 444.) "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." (Ibid.) "[I]f the police take a suspect into custody and then ask him questions without informing him of the rights enumerated above, his responses cannot be introduced into evidence to establish his guilt." (Berkemer v. McCarty (1984) 468 U.S. 420, 429 (Berkemer).)
An officer's obligation to administer Miranda warnings attaches "'only where there has been such a restriction on a person's freedom as to render him "in custody."'" (Stansbury v. California (1994) 511 U.S. 318, 322.) In determining whether an individual was in custody, a court must examine all the circumstances surrounding the interrogation, but "'the ultimate inquiry is simply whether there [was] a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.'" (Ibid.; see also Miranda, supra, 384 U.S. at p. 444 ["[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way"].) In Berkemer, the Supreme Court held that the "noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not 'in custody' for the purposes of Miranda." (Berkemer, supra, 468 U.S. at p. 440.)
2. The Traffic Stops and Police Contacts Were Not Custodial Interrogations
Seven officers testified that appellants had admitted their membership in the Rolling 30's to officers during traffic stops and other contacts. Defense counsel objected on Miranda grounds to the admission of appellants' gang membership statements. The trial court ruled the statements did not violate Miranda, stating:
"And if the facts are, that they simply stopped him, and they gave him a ticket, and there was nothing else obtained, and based on that alone, the court will find that there is no Miranda violation, and therefore the objection is overruled . . . for both Rose and Davis."
Appellants acknowledge the trial court properly admitted some of their gang membership statements. Appellants argue the trial court should not have admitted their other gang membership statements and that those other statements resulted in the jury finding the gang enhancements true.
Berkemer held that police need not give Miranda advisements to people briefly detained for "ordinary traffic stops." (Berkemer, supra, 468 U.S. at p. 440.) Appellants argue Berkemer does not apply because the traffic stops during which appellants admitted their gang membership were not routine. Appellants contend the traffic stops and contacts here "were all custodial interrogations" that occurred "under circumstances in which the defendants were not free to leave." Appellants argue the officers were specially trained gang enforcement officers "who forcibly detained the defendants" and "then proceeded to ask incriminating questions about gang affiliations which were recorded on field identification cards routinely relied on during gang trials."
The record does not support a conclusion that appellants' traffic stops and police contacts were custodial interrogations requiring Miranda advisements. The officers' testimony about their contacts with appellants was brief, consisting of a short description of the circumstances of the contact, the officers' observations of appellants, and appellants' statements of gang membership. No evidence was adduced that appellants were placed under arrest or told they could not leave, that the traffic stops and other contacts were prolonged or occurred in isolated locations, or that the questioning was accusatory. (Cf. People v. Vasquez (1993) 14 Cal.App.4th 1158, 1164 [defendant not in custody when officer approached him on public street and asked if he was selling drugs].) We find no basis in the record to conclude that appellants' traffic stops and police contacts differ in any meaningful respect from the traffic stops Berkemer held do not warrant Miranda advisements. B. Substantial Evidence Supports Gray's Attempted Robbery Conviction and Appellants' Gang Enhancements
Officer Garcia testified that he contacted Seymore on foot and Seymore admitted his Rolling 30's membership and stated his moniker was "Smurf." Garcia testified that "[i]nitially the contact [with Seymore] was made on the street. All that other information was taken at Southwest Station." The record does not distinguish between the information Garcia obtained from Seymore on the street and the information he obtained at the station. Nor does the record disclose why Seymore was at the station or the conditions under which Seymore spoke to Garcia at the station. On this sparse record, we cannot conclude Garcia obtained any of Seymore's statements during a custodial interrogation. Even if we so concluded, any error in admitting Garcia's testimony was harmless in light of the other extensive evidence of Seymore's admitted gang status.
The jury convicted Gray of aiding and abetting attempted robbery and found the gang enhancements on the attempted robbery charge true as to both appellants. Gray argues insufficient evidence supports his attempted robbery conviction, and appellants contend insufficient evidence supports the gang enhancement findings.
1. Standard of Review
"To determine the sufficiency of evidence to support a conviction or a special circumstance, 'an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Davis (2009) 46 Cal.4th 539, 606, quoting People v. Kipp (2001) 26 Cal.4th 1100, 1128.) In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. (Ibid.) Unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (Ibid.)
2. Gray's Attempted Robbery Conviction
"An attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission." (People v. Medina (2007) 41 Cal.4th 685, 694.) An aider and abettor must "act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560, italics omitted.) Among the factors the jury may consider in determining aiding and abetting liability are presence at the crime scene, companionship, and conduct before and after the offense. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.)
All of these factors are present here. Fisher testified that Gray and Seymore together followed Antonio and him from one store to another in the mall. Both appellants were visible on the mall's surveillance video, which corroborated Fisher's testimony. Fisher testified that both appellants followed Antonio and him out of the mall. Shortly thereafter, Seymore, with Gray in the car, rear-ended Antonio's car.
Fisher testified that when he got out of the car after the collision, Seymore attacked him and attempted to steal his gold necklaces. Fisher identified Gray as the person who emerged from Seymore's car and shot him. After Gray fled, the police captured him a short distance away. Based on this evidence, a rational jury could conclude that Gray aided and abetted Seymore's attempt to steal Fisher's jewelry.
Gray argues that Fisher was not credible. Determinations about Fisher's credibility, and the resolution of any alleged inconsistencies in his testimony, were issues for the jury. (People v. Jones (1990) 51 Cal.3d 294, 314 ["Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness' credibility for that of the fact finder."].) Viewing the record in the light most favorable to the judgment, substantial evidence supports Gray's attempted robbery conviction.
3. The Gang Enhancements
There are two "prongs" to the gang enhancement. (People v. Albillar (2010) 51 Cal.4th 47, 59 (Albillar).) First, the prosecution is required to prove that the underlying felonies were "committed for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22, subd. (b)(1).) Second, there must be evidence that the crimes were committed "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (Ibid.; see Albillar, at p. 59.) Appellants contend the evidence was insufficient to support either prong.
Section 186.22, subdivision (b)(1), provides three alternatives for establishing the first prong. The offense may be committed (1) for the benefit of a gang; (2) at the direction of a gang; or (3) in association with a gang. (See Albillar, supra, 51 Cal.4th at pp. 59-60.) Expert opinion that particular criminal conduct benefited a gang is not only permissible but also sufficient to support the first prong of the section 186.22, subdivision (b)(1), gang enhancement. (People v. Vang (2011) 52 Cal.4th 1038, 1048 (Vang); see also Albillar, at p. 63 ["[e]xpert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[ ] criminal street gang' within the meaning of section 186.22(b)(1)"].)
In addition, because the first prong is worded in the disjunctive, a gang enhancement may be imposed without evidence of any benefit to the gang so long as the crime was committed in association with or at the direction of another gang member. (People v. Weddington (2016) 246 Cal.App.4th 468, 484 (Weddington).) The first prong thus may be established with substantial evidence that two or more gang members committed the crime together, unless there is evidence that they were "on a frolic and detour unrelated to the gang." (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales); see also Albillar, supra, 51 Cal.4th at pp. 61-62.)
Substantial evidence supports the finding that appellants committed the underlying offenses for the benefit of, at the direction of, or in association with the Rolling 30's street gang. A gang expert, Officer Huacuja, testified that the Rolling 30's is a criminal street gang with primary activities that include murder, robbery, and burglary, a common sign, and a claimed territory. Huacuja testified that gang members steal personal property to benefit the gang, including pawning stolen property to raise money for the gang. Based on a hypothetical that tracked the facts of the case, Huacuja opined that appellants committed the crimes for the benefit of and in association with the Rolling 30's gang. (Vang, supra, 52 Cal.4th at p. 1048 [expert "properly could, and did, express an opinion, based on hypothetical questions that tracked the evidence, whether the assault, if the jury found it in fact occurred, would have been for a gang purpose"].)
In addition, seven officers testified that appellants admitted membership in the Rolling 30's, admitted they had gang monikers and identified them, and fraternized with other Rolling 30's members. Fisher testified appellants followed him at the mall and into the mall parking lot, and rode together to the scene of the attempted robbery, where Gray observed Seymore attempt to steal Fisher's necklaces. "[E]vidence that two or more gang members committed the crime together" is a factor which may be considered to prove the crime was gang-related. (Weddington, supra, 246 Cal.App.4th at p. 484; see also Albillar, supra, 51 Cal.4th at p. 62 ["defendants came together as gang members to attack [the victim] and, thus, . . . they committed these crimes in association with the gang"] (original italics); Morales, supra, 112 Cal.App.4th at p. 1198 ["the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members"].) Based on this evidence, a rational jury could conclude that the attempted robbery was gang-related.
The second prong of the gang enhancement requires proof that the crimes were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. Intent for the second prong "'is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.'" (People v. Rios (2013) 222 Cal.App.4th 542, 567-568.) The Supreme Court has held that the scienter requirement may be satisfied with proof "that the defendant intended to and did commit the charged felony with known members of a gang," from which "the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Albillar, supra, 51 Cal.4th at p. 68.)
Appellants, both Rolling 30's members, committed the attempted robbery together. They followed Fisher through the mall on foot and through traffic by car, culminating in a rear-end collision that provided Seymore an opportunity to attempt to snatch Fisher's necklaces while Gray kept watch from the car. A reasonable jury could fairly infer from this evidence that appellants attempted to steal Fisher's necklaces to promote, further, or assist in criminal conduct by Rolling 30's gang members. Substantial evidence supports the gang enhancements on the attempted robbery charge. C. The Prosecutor Did Not Commit Misconduct
Appellants argue the jury rejected Huacuja's opinion that a hypothetical shooting would be committed for the benefit of the gang because it found the gang enhancement allegations on the shooting charges not true. As appellants describe the verdicts, "[t]he jury determined appellant Gray fired at Fisher to protect Seymore after Fisher pointed what appeared to be a gun at him." A conclusion that the shooting was not gang-related or done to promote criminal conduct by Rolling 30's members is not inconsistent with a conclusion that appellants' attempt to steal Fisher's necklaces was.
It is improper for a prosecutor to misstate the law generally and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements of a charge. (People v. Hill (1998) 17 Cal.4th 800, 829-830.) Where a defendant shows prosecutorial misconduct occurred, reversal is not required unless the defendant can show he suffered prejudice. (People v. Fernandez (2013) 216 Cal.App.4th 540, 564 (Fernandez).) Error with respect to prosecutorial misconduct is evaluated under Chapman, supra, 386 U.S. 18, to the extent federal constitutional rights are implicated, and People v. Watson (1956) 46 Cal.2d 818 (Watson), if only state law issues are involved. (Fernandez, at p. 564.) Chapman is implicated if the prosecutor's conduct renders the trial so fundamentally unfair that due process is violated. (Fernandez, at p. 564; see also People v. Gionis (1995) 9 Cal.4th 1196, 1214-1216 (Gionis).) Watson applies where the prosecutor uses "'"'deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"'" (Gionis, at p. 1215.)
During closing rebuttal argument, the prosecutor argued:
"[W]hat you should focus on is what didn't they talk about when they came up here. They mentioned or argued this is not really for the benefit of the gang. You know how does it promote the gang? They did not talk about well is it in association with a criminal street gang? We have got two documents [sic] criminal street gang member Rolling 30's who are committing gang crimes together. That's all you need. But they did not address that."Gray's counsel objected that the argument misstated the law. In response, the trial court instructed the jury:
"Ladies and gentlemen your reflection and memory of what was read to you is what will be remembered. Counsel's argument is not evidence. You will have a set of jury instructions with you and [sic] deliberations."
As discussed, the gang enhancements required proof that (i) appellants committed the underlying felonies for the benefit of, at the direction of, or in association with a criminal street gang, and (ii) appellants committed the felonies with the specific intent to promote, further, or assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1); People v. Franklin (2016) 248 Cal.App.4th 938, 948.) Appellants argue the prosecutor's closing rebuttal argument suggested that only the first prong was required and that the prosecution need not prove appellants attempted to steal Fisher's necklaces with the specific intent to promote, further, or assist in criminal conduct by Rolling 30's members.
"Although [appellants] single[ ] out words and phrases, or at most a few sentences, to demonstrate misconduct, we must view the statements in the context of the argument as a whole." (People v. Dennis (1998) 17 Cal.4th 468, 522.) In her closing argument, the prosecutor stated:
"You heard evidence that there was a plan[,] that these two defendants had a plan. These two defendants were acting in concert[,] that these two defendants had a scheme. . . ."
"That's what this is about, . . . and they had each other's back and they had their roles and Dwayne Seymore would actually perpetrate the robbery and Thomas Gray would stand by armed and ready to go. . . ."
"These crimes are then [sic] putting in work. Putting in work on a gang member hence the gang and it make [sic] them stronger, it makes them more ready and it makes them more fear [sic] and it makes people intimidated and people are intimidated by them and fear them and their [sic] less like[ly] to report crimes. . . . There's also financial benefit as you heard because if their [sic] stealing things from people taking from just as gold chain [sic] or money or whatever it may, they can take those things, pawn them off and buy weapons for the gang. . . ."
"If you find that this crime was committed in association with the criminal street gang you have that because you know you have two self-admitted documented Rolling 30's gang members who are committing a crime together in unison in concert and that's in association with the street gang. That also promotes the gang."
Proof that a defendant "intended to and did commit the charged felony with known members of a gang" satisfies the second prong of the gang enhancement. (Albillar, supra, 51 Cal.4th at p. 68.) The prosecutor argued that appellants "act[ed] in concert," "had each other's back[s]," and "had their roles" in the attempted robbery. She also argued that appellants committed the crimes to "put[ ] in work," which "make[s] [the members] stronger" and more intimidating. In her closing rebuttal argument, the prosecutor stated that "two self-admitted documented Rolling 30's gang members . . . commit[ed] a crime together in unison in concert."
Viewing the challenged sentences in the context of the prosecutor's entire closing argument demonstrates that the prosecutor did not improperly describe the gang enhancement prongs or otherwise deceive the jury about the prongs. Moreover, in response to defense counsel's objection, the trial court promptly admonished the jury that the prosecutor's argument was not evidence and that the jury would have a set of the jury instructions available during deliberations. The record does not support a finding that the prosecutor committed misconduct. D. Gray's Firearm Enhancement on the Vehicle Shooting Charge
The jury convicted Gray of attempted voluntary manslaughter and found the firearm enhancement pursuant to section 12022.5 true on that charge. The jury also convicted Gray of shooting at an occupied motor vehicle and found the firearm enhancements pursuant to section 12022.53, subdivisions (b), (c), and (d), true on that charge.
Shooting at an occupied motor vehicle in violation of section 246, although expressly included in section 12022.53, subdivision (d), is not an offense identified in section 12022.53, subdivision (a), and thus is not subject to enhancement pursuant to section 12022.53, subdivisions (b) and (c). As a result, the jury's finding true the section 12022.53, subdivisions (b) and (c), enhancements was error, as was the trial court's imposition of a 10-year sentencing enhancement pursuant to section 12022.53, subdivision (b). The trial court found that the 25-years-to-life term for the section 12022.53, subdivision (d), enhancement was too severe.
The jury's true findings on the section 12022.53, subdivisions (b) and (c), enhancements and the trial court's imposition of a 10-year sentencing enhancement pursuant to section 12022.53, subdivision (b), are reversed. Gray argues, and respondent agrees, that a 10-year section 12022.5, subdivision (a), enhancement should be imposed instead. (See People v. Fialho (2014) 229 Cal.App.4th 1389, 1395-1396 [§ 12022.5 is lesser included enhancement which may be imposed rather than § 12022.53, subds. (b) or (c), enhancement on § 246 conviction].) Gray and respondent also suggest that the 10-year upper term of the section 12022.5, subdivision (a), triad should be imposed, which would result in the same sentence the trial court imposed. The parties' mutual suggestion notwithstanding, the trial court is best positioned to evaluate Gray's conduct and determine his sentence on remand, including whether a three-, four-, or 10-year firearm enhancement is appropriate. E. The Gang Enhancements
The jury found the gang enhancements pursuant to section 186.22, subdivisions (b)(1)(C) and (b)(5), true as to both appellants on the attempted robbery charge. Appellants argue, and respondent agrees, that these findings were erroneous because attempted robbery is not a violent felony as section 186.22, subdivision (b)(1)(C), requires and does not carry a life sentence as section 186.22, subdivision (b)(5), mandates.
Section 186.22, subdivision (b)(1), provides for enhanced punishment for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." Section 186.22, subdivision (b)(1)(C), provides for an additional term of 10 years if the underlying crime is a violent felony listed in section 667.5, subdivision (c). Section 667.5, subdivision (c)(9), states that "[a]ny robbery" qualifies as a violent felony. Attempted robbery does not. Attempted robbery is a serious felony pursuant to section 1192.7, subdivisions (c)(19) and (c)(39). Section 186.22, subdivision (b)(1)(B), applies to serious felonies.
The prosecutor acknowledged this error in the sentencing memorandum and at sentencing. Appellants' sentences were corrected at the sentencing hearing from 10 years to five years and were also corrected in the clerk's minute orders, but not in the abstracts of judgment.
The court sentenced Seymore to five years for the gang enhancement, in addition to six years for attempted robbery. Seymore's abstract of judgment must be corrected to reflect that the court imposed the gang enhancement pursuant to section 186.22, subdivision (b)(1)(B), not section 186.22, subdivision (b)(1)(C). (People v. Velasquez (2011) 201 Cal.App.4th 219, 233 [reducing § 186.22, subdivision (b)(1)(C), violent felony enhancement to § 186.22, subdivision (b)(1)(B), serious felony enhancement where underlying felony was serious felony but not violent felony].)
The trial court stayed Gray's gang enhancement, which it did not have authority to do. Section 186.22, subdivision (g), permits a court to strike a gang enhancement "in an unusual case where the interests of justice would be best served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition." (§ 186.22, subd. (g); see also People v. Vega (2013) 214 Cal.App.4th 1387, 1397.) On remand, the trial court must impose or strike Gray's gang enhancement.
Section 186.22, subdivision (b)(5), requires "commission of a felony punishable by imprisonment in the state prison for life." Attempted robbery is not punishable by imprisonment for life. (See People v. Neely (2009) 176 Cal.App.4th 787, 797 [attempted second degree robbery punishable by 16 months, two years, or three years in state prison].) Thus, the jury's findings on the gang enhancement pursuant to section 186.22, subdivision (b)(5), for attempted robbery were error, and we reverse them. F. Seymore's Presentence Custody Credits
The trial court awarded Seymore 1,077 actual days of presentence custody credits. The trial court calculated Seymore's conduct credits at 15 percent pursuant to section 2933.1 and, based on that calculation, awarded Seymore 162 days of conduct credits, for a total of 1,239 days of presentence custody credits. Seymore argues he is entitled to earn presentence custody credits at "half time" rather than at 15 percent because he was not convicted of a violent felony pursuant to section 667.5. Respondent agrees.
A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) Section 2933.1 states that any person "who is convicted of a felony offense listed in subdivision (c) of [Penal Code] Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933." (§ 2933.1, subd. (a).)
Seymore was not convicted of a felony identified in section 667.5, subdivision (c), and thus section 2933.1 does not apply. Seymore is entitled to presentence conduct credits calculated at half-time pursuant to section 4019, for a total award of presentence conduct credits of 539 days. Seymore's presentence custody credit award, and the abstract of judgment reflecting the award, shall be modified to award Seymore 377 additional days of presentence conduct credits, for a total award of 1,616 days of presentence custody credits.
DISPOSITION
The judgments of convictions are affirmed. The firearm enhancement findings pursuant to section 12022.53, subdivisions (b) and (c), on Gray's conviction for shooting at an occupied vehicle are reversed, as is the trial court's imposition of a 10-year sentencing enhancement pursuant to section 12022.53, subdivision (b). The gang enhancement findings pursuant to section 186.22, subdivisions (b)(1)(C) and (b)(5), on appellants' attempted robbery convictions are reversed, and a gang enhancement pursuant to section 186.22, subdivision (b)(1)(B), is imposed as to both appellants. On remand, the trial court must impose or strike Gray's gang enhancement pursuant to section 186.22, subdivision (g). Seymore's presentence custody credit award is modified to include an additional 377 days of conduct credits, for a total award of 1,616 days of presentence custody credits. Upon remittitur issuance and resentencing of Gray, the superior court shall prepare amended abstracts of judgment for Gray and Seymore, and send certified copies to the Department of Corrections and Rehabilitation.
Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
PERLUSS, P. J.
SEGAL, J.