Opinion
C039008.
11-13-2003
THE PEOPLE, Plaintiff and Respondent, v. LIONEL HANSON, Defendant and Appellant.
A jury convicted defendant Lionel Hanson of attempted murder (Pen. Code, §§ 664, 187 — count I),[] assault with a firearm (§ 245, subd. (a)(2) — count II), false personation (§ 529, subd. 3 — count IV), and resisting arrest (§ 148, subd. (a)(1) — count V). As to count I, the jury also found that defendant personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and as to count II, that he used a firearm (§ 12022.5, subd. (a)(1)) and inflicted great bodily injury (§ 12022.7, subd. (a)). Finally, the jury found as to counts I and II that they were committed in furtherance of a street gang (§ 186.22, subd. (b)(1)).[]
Hereafter undesignated section references are to the Penal Code.
The jury acquitted defendant of count III, assault with a firearm (§ 245, subd. (a)(2)).
Sentenced to state prison for 25 years to life plus a determinate term of nine years, defendant appeals contending (1) the evidence is insufficient to support the gang enhancement, (2) the trial court must issue an amended abstract of judgment, and (3) imposition of the gang enhancement constitutes an unauthorized sentence. We shall direct the superior court to prepare an amended abstract of judgment reflecting changes it made while this appeal was pending, and as amended we shall affirm the judgment.
FACTS[]
Aside from defendants request that we order the abstract of judgment amended, his only challenges relate to counts I and II; hence, we do not set forth the facts relating to the remaining counts.
On July 20, 1999, after purchasing items at a convenience store, 13-year-old Jasmine A. and some of her friends were returning to their neighborhood when they walked by defendant and another male. Defendant was a Nogales Gangster Crip and was wearing blue; Jasmine was wearing a red scarf, the color of a rival gang. Defendant called out to Jasmines group, asking if they had any "weed." Someone said no and the group continued to walk, but Jasmine and her cousin, Coffee, lagged behind.
Jasmine overheard defendant ask who she was and told Coffee not to tell him. Defendant said, "Fuck you, bitch," but Jasmine did not respond. Jasmine walked a little further and defendant said, "[C]uz, cuz, your mama a bitch." Jasmine responded with something like, "My mama aint no bitch. Your mama is a bitch. No your mama is a bitch."
Jasmine and Coffee ran and defendant gave chase, catching up with Jasmine as she neared an alley. Jasmine turned around and defendant struck her on the nose with a gun, causing her to fall. Defendant shot Jasmine in the face, neck and shoulder. Jasmine managed to run away and was taken to a hospital. The wounds were through-and-through, causing six holes in Jasmine, all of which were life threatening.
Detective Adlert Robinson, an expert in gang activity, testified that defendant was a member of the Nogales Gangster Crips, a street gang located in North Sacramento. Robinson opined that the shooting of Jasmine was gang-related because defendant yelled "Crip, Crip, Crip" during the shooting; he asked Jasmine if she was a "slob," a derogatory term for a "Blood" gang member; he used the word "cuz," another word showing gang affiliation; he was dressed in blue, the color claimed by the Nogales Gangster Crips; and he had been disrespected by Jasmine in front of his companion, an action which, pursuant to gang tradition, required retaliation.
For the purpose of establishing the street gang enhancement, Detective Robinson testified to two other incidents by the Nogales Gangster Crips. Kenny Hill, another Nogales Gangster Crip, had a child by a woman with whom he had broken up. One day in August 1996, when visiting the woman, Hill heard the child call the mothers new boyfriend, one Orlandis Murray, "daddy." This upset Hill and resulted in his having an argument with Murray. Hill left but returned later with a friend and assaulted Murray, biting off his eyebrow. As defendant and his friend left, they threw gang hand signs and announced that they were Nogales Gangster Crips. Robinson opined that because defendant had been disrespected the assault was done to benefit the gang.
Detective Robinson also described an incident in 1999 when Matthew Castillo, Shaunte Murphy, and Lemont West, all Nogales Gangster Crips, shot Merten Larsen in the head while he stood in his home. The shooting was in response to Larsens having called the police on the gang because they were dealing drugs outside his home. Robinson opined this shooting was for the benefit of the gang.
DISCUSSION
I
Defendant contends that the gang enhancement imposed on counts I and II pursuant to section 186.22, subdivision (b)(1) must be stricken for insufficiency of the evidence. We disagree.
Section 186.22, subdivision (b)(1)[] provides for enhanced punishment of one, two, or three years 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 . . . ."
All references to section 186.22 are to the statute as it read in July 1999, the time of the commission of the offenses herein.
A "criminal street gang" is defined as "any ongoing organization, association, or group of three or more persons . . . having as one of its primary activities the commission of one or more [specified criminal acts] . . . and whose members individually or collectively engage in or have engaged in pattern of criminal gang activity." (§ 186.22, subd. (f).)
A "`pattern of criminal gang activity means the commission of, attempted commission of, . . . or conviction of two or more of the following [specified] offenses, provided at least one of these offenses occurred after the effective date of this chapter (September 26, 1988) and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . . ." (§ 186.22, subd. (e).) The charged offense can be considered for the purpose of establishing the pattern of gang activity (People v. Gardeley (1996) 14 Cal.4th 605, 621-624); however, no offense occurring after the commission of the charged offense may be used for that purpose (People v. Godinez (1993) 17 Cal.App.4th 1363, 1369-1370).
Although only two predicate offenses were required to establish the pattern of criminal gang activity, the People offered three such offenses — defendants assault on Jasmine on July 20, 1999; Kenny Hills assault on Orlandis Murray in August 1996; and the gang assault on Merten Larsen by the three Nogales Gangster Crips in 1999. However, the People failed to present any evidence as to the date in 1999 when the assault on Larsen occurred, an omission which rendered it impossible for the jury to determine whether the Larsen assault occurred before or after the assault on Jasmine.[] Consequently, the evidence was insufficient to support use of the Larsen assault as a predicate offense for establishment of the pattern of criminal gang activity.
During argument to the jury, the prosecutor stated that the assault on Larsen occurred in February 1999. However, the jury was instructed that "Statements made by the attorneys during a trial are not evidence."
However, because only two predicate offenses are required to prove a pattern of criminal gang activity, the unavailability of the Larsen assault as a predicate offense would have no effect on the jurys finding a pattern of criminal gang activity if it can be determined that the jury also found that defendants assault on Jasmine and Hills assault on Murray in August 1996 were qualifying predicate offenses.
Defendant claims that no such determination can be made on this record because (1) the court committed an instructional error which made it likely that the jury used the Larsen assault as a predicate offense, and (2) it is unlikely that the jury used the Murray assault because its use was "hotly contested." We agree with defendant as to the first prong of his argument but not the second.
The instructional error committed by the court was its failure to inform the jury that for a non-charged offense to qualify as a predicate offense in determining whether a pattern of criminal gang activity had been established, the non-charged offense must have occurred prior to the charged offense. (People v. Godinez, supra, 17 Cal.App.4th at pp. 1369-1370.)
This omission permitted the jury to find that the Larsen assault qualified as a predicate offense notwithstanding the Peoples failure to present evidence showing that the Larsen assault occurred prior to the charged assault on Jasmine. Moreover, we agree with defendant that the jury likely found the Larsen assault to be a qualifying offense because it was clearly a gang-related shooting and the defense did not contest its use.
As to the likelihood that the jury found the charged offense qualified as a predicate offense, defendant concedes that such was the case because the jury convicted him of the assault on Jasmine and found the assault was committed for the benefit of a street gang. We agree.
However, defendant argues, Hills assault on Murray presents a different matter because its applicability for use as a predicate offense was "hotly contested", with his counsel arguing "that the gang enhancement was not applicable to this case because the Kenny Hill incident was about a guy acting crazy, not about activity done for the benefit of a street gang." Thus, believing it had the two required qualifying predicate offenses, namely, the charged offense and the Larsen assault, the jury may well have concluded they need make no finding on Hills assault on Murray.
While it is true that defendant "hotly contested" the Murray assault, he did so on an utterly immaterial point, to wit, whether Hills assault on Murray was gang-related. Non-charged offenses offered to prove a pattern of criminal street gang activity need not be gang-related — all that is required to establish the pattern is that the gang "has as a primary function the commission of specified criminal acts and whose members have actually committed specified crimes, and who acted with the specific intent to do so." (People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10.) In other words, for purposes of proving the pattern of criminal gang activity it mattered not whether Hills assault on Murray had anything whatsoever to do with his street gang.
Moreover, the evidence that Hill assaulted Murray in August 1996 was overwhelming. In addition to Detective Robinsons testimony that Hill was a known member of the Nogales Gangster Crips and his relating Hills assault on Murray in August 1996, wherein Hill bit off Murrays eyebrow, the court admitted into evidence a certified copy of Hills conviction for mayhem (§ 203), which was based upon that assault. Nothing in the courts instructions suggested or required that to qualify as a predicate offense that a non-charged crime be gang-related.[] Given the presumption that the jury followed the courts instructions (People v. Harris (1994) 9 Cal.4th 407, 426), there is no basis for believing that the jury was misled on the irrelevant point that Hills assault on Murray did not qualify as a predicate offense because it was not gang-related.
The court instructed the jury in this regard as follows: "The term `criminal street gang means any ongoing organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of criminal acts, having a common name or common identifying symbol, and whose members individually or collectively engage or have engaged in a pattern of criminal gang activity. [¶] The terms `criminal act and `pattern of criminal gang activity are synonymous as used in this instruction. [¶] Those terms are defined as the commission or attempted commission of or convictions for at least two of the following offenses, provided that at least one offense occurred after 1988: [¶] The offenses are within three years of each other. [¶] That the offenses were committed on separate occasions or by two or more persons. [¶] A pattern can be established by two or more incidents, each with a single perpetrator, or by a single incident with multiple participants committing one or more of the specific offenses listed below. [¶] The current offense charging the defendant with attempted murder can be used to establish a pattern of criminal gang activity. Most of those offenses are, [¶] 1. Assault with a deadly weapon or by means of force likely to produce great bodily injury; [¶] 2. Robbery; [¶] 3. Homicide; [¶] 4. Shooting at an inhabited dwelling house; [¶] 5. Arson; [¶] 6. Burglary; [¶] 7. Kidnapping; [¶] 8. Mayhem; [¶] 9. Torture."
We think it clear on this record that the jury found that the assaults on Jasmine, Murray and Larsen each qualified as a predicate offense for establishing a pattern of criminal gang activity. Because the assaults on Jasmine and Murray were sufficient to establish the pattern of criminal gang activity and because the instructional error related only to the Larsen assault, the instructional error was harmless beyond a reasonable doubt. (See People v. Flood (1998) 18 Cal.4th 470, 502-503 [instructional error that improperly describes or omits element of offense subject to review pursuant to Chapman v. California (1967) 386 U.S. 18, 24 .)
The People set forth the following claims as to why the jury could properly find the Larsen assault was a predicate offense. The People argue that "since the statutory elements of the gang enhancement with regard to the Merton Larsen attack were proven to the jury despite the ambiguity in the date [of its occurrence], the burden is upon appellant to show that it occurred after his offense in order for him to demonstrate a denial of due process." The argument is, at best, unsound. The assault on Jasmine occurred on July 20, 1999. The Larsen assault also occurred in 1999, but the People failed to present any evidence regarding when in 1999 the Larsen assault occurred. This failure rendered it impossible for the jury to determine whether the Larsen assault occurred before or after the assault on Jasmine. Thus there was no ambiguity in the evidence on this point, only an evidentiary failure. And defendants burden, which he met, was simply to show that evidentiary failure.
The People claim "there was no error in the instructions . . . ." It couldnt be much plainer — as pointed out above, the courts failure to instruct the jury in accordance with People v. Godinez, supra, 17 Cal.App.4th 1363, was instructional error. (See People v. Flood, supra, 18 Cal.4th at pp. 502-503 [failure to include element of offense is instructional error].)
The People state that they "do[] not concede that the record establishes that the Larsen attempted murder happened after the charged crime." The point is irrelevant. Defendant is not asserting that the Larsen assault occurred after the charged crime. He is asserting that the evidence is insufficient to show that the Larsen offense occurred prior to the charged crime.
Finally, the People claim that even if the Larsen assault occurred after the charged crime, this resulted only in the admission of irrelevant evidence and defendants failure to object "waived consideration of the error on appeal." Defendant is not objecting to the admission of the evidence relating to the Larsen assault, as such evidence was clearly relevant to establish the pattern of criminal gang activity. Instead, defendant is claiming there was not enough evidence adduced to use the Larsen assault as a predicate offense. Thus defendant is making an insufficiency of the evidence argument, an argument which requires no specific objection in the trial court. (See People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469; People v. Neal (1993) 19 Cal.App.4th 1114, 1122.)
II
Following defendants filing of a notice of appeal, his counsel sent the trial court a letter pursuant to People v. Fares (1993) 16 Cal.App.4th 954, requesting additional presentence custody credit of 73 days (64 actual days plus 9 conduct), deletion of the main jail booking and classification fees, deletion of two $100 revocation fines, and staying of the sentence imposed for the assault conviction pursuant to section 654. In a hearing conducted February 22, 2002, the court granted each request.
Appellant then requested the Criminal Appeals Clerk of the Sacramento County Superior Court to make clerks and reporters transcripts of the February 22 hearing, the amended abstract of judgment, and counsels Fares letter a part of the appellate record. By letter dated March 28, the clerk responded that since the items requested constituted an augmentation to the record, counsel would have to apply to this court for an augment order.
On March 29, 2002, appellate counsel filed an application with this court to augment the appellate record to include the requested reporters and clerks transcripts as well as an amended abstract of judgment. On April 10, we granted the motion and directed the Sacramento County trial court clerk "to cause the original or certified copy of the augmented record to be sent . . . to this court" and to all counsel.
On April 26, 2002, a deputy clerk sent to this court the following letter: "I received an augment order from the Third Appellate District filed on March 29, 2002. The appellants counsel is requesting an amended abstract of this case. The Courtroom Clerk has informed me that no amended abstract is required. Nothing has been omitted."
Notwithstanding the repeated efforts by appellate counsel to obtain from the clerk of the superior court an amended abstract of judgment showing the trial courts modifications to the judgment, as well as this courts order of April 10, 2002, to do so, the clerk has not complied. Counsel requests that we again direct the superior court to prepare the amended abstract of judgment. We shall do so.[]
Rule 33(d) of the California Rules of Court provides: "If the judgment is amended or recalled after the transcript is certified, copies of the amended abstract of judgment or other new dispositional order shall be certified and transmitted to the reviewing court, the defendant, the Attorney General, and defendants counsel on appeal."
III
The trial court imposed a determinate term of seven years for the attempted murder in count I, with that term enhanced by two years pursuant to section 186.22, subdivision (b)(1) and 25 years to life pursuant to section 12022.53, subdivision (d). Defendant contends the two-year enhancement imposed under section 186.22, subdivision (b)(1) must be stricken because it does not apply when the underlying felony is enhanced by the 25-year-to-life term imposed under section 12022.53, subdivision (d).
Following the filing of the briefs in this case, the California Supreme Court filed its decision in People v. Montes (2003) 31 Cal.4th 350, 352-353, expressly rejecting defendants position. Consequently, the enhancement was properly imposed.
DISPOSITION
The superior court is directed to prepare an amended abstract of judgment reflecting any and all modifications of the judgment and to forward a copy thereof to the Department of Corrections. As amended, the judgment is affirmed.
We concur: MORRISON, J. and KOLKEY, J.