Opinion
D057364
08-05-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT THADDEUSS HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. RIF132814)
APPEAL from a judgment of the Superior Court of Riverside County, Richard J. Hanscom, Judge. Affirmed.
In this case defendant Robert Thaddeuss Hernandez, a gang member, was convicted of a number of crimes growing out of his attempt to shoot and kill the occupants of a house where the member of a rival gang lived with his grandmother, brother and uncle. Hernandez was sentenced to a total of 443 years in state prison, which included an indeterminate term of 305 years to life and a determinate sentence of 138 years.
On appeal Hernandez argues the trial court erred in failing to declare a mistrial after a prosecution witness, in an unprompted statement, made a statement which suggested Hernandez arranged for her son to be gravely disabled in retaliation for preliminary hearing testimony the son had provided. In addition Hernandez argues his trial counsel was ineffective in failing to raise additional objections to the admission of Hernandez's recorded statement in which Hernandez boasted about, among other matters, killing someone. Hernandez also contends the trial court erred in denying both his posttrial motion for access to jurors' identifying information and his motion for a new trial based on his discovery that one of the police officers who testified against him had himself been charged with a number of serious felonies and was addicted to prescription medication. Finally, Hernandez contends the trial court should have stayed some of his sentences under Penal Code section 654.
All further statutory references are to the Penal Code.
As we explain, we reject Hernandez's contentions and affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
1. Hernandez's Gang Affiliation and Traffic Stop
According to a gang expert, the one-square mile Casa Blanca area of the City of Riverside is extremely violent and dominated by two rival sets of criminal street gangs. According to the expert, the west side of Casa Blanca is dominated by gangs or cliques affiliated as Fern Street. The Vagabundos are the most active clique within the larger Fern Street gang. Their rivals on the east side of Casa Blanca are known as Evans Streeters and are composed of the Diablos and the Devil Wolves gangs.
At the time of the 2006 crimes which are the subject of his appeal, Hernandez was 32 years old. By his own admission, Hernandez has been a member of the west side Vagabundos since he was 14 or 15 years old.
On August 12, 2006, Hernandez was subjected to a traffic stop conducted by two members of the Riverside Police Department, Officers Daniel Floyd and David Reeves. During the course of the stop, both officers turned on their respective audio recording devices and recorded their conversation with Hernandez. Because of a visible scar, Floyd asked Hernandez who cut him in prison. Hernandez responded he was not cut in prison but was shot and then stated: "Don't forget I'm a fucking shot caller mother fucker. Don't ever, ever, ever, ever get that fucked up." Hernandez then offered "I cut mother fuckers in prison." In the course of the conversation with Floyd and Reeves, Hernandez then made the following admission: "I got shot in '93 in Magnolia, check the records. . . . [T]hen ask who the fuck I killed like, three years later." Hernandez then elaborated on his reputation in the community: "Pull this. When I'm out, they're fucking spooked. They go inside. They go inside, and they don't come out, and they don't kick it all, at all. Know that I go in houses, like, boom, mother fucker." Reeves believed Hernandez was serious when he made these statements.
In a street gang a "shot caller" is a leader or one who directs the criminal activity of other gang members. (See People v. Romero (2008) 44 Cal.4th 386, 401; People v. Salcido (2007) 149 Cal.App.4th 356, 361.)
2. Shooting of Conchita's Home
In August 2006, Conchita G. was 69 years old and living at the corner of Ysmael Villegas Street and Esperanza Street in Casa Blanca, across from a community center, park and public swimming pool. Conchita lived in her home with her son Wally G. and her two grandsons, Gabriel H. and Andy H. Michael R., Jr., was a friend of Gabriel and the prosecution's gang expert believes both Gabriel and Michael were members of an Evans Street gang.
On August 21, 2006, less than two weeks after Hernandez had his boastful conversation with officers Floyd and Reeves, Hernandez shot up Conchita's home. According to Wally, that afternoon and evening he and his nephew Gabriel were drinking alcohol in the front yard of Conchita's home. Conchita was at church and came home after nightfall. When Conchita came home, she saw her grandson Gabriel and his friend Michael near the side of her house and her son Wally in front of the house. Conchita went inside the house and began cleaning up.
At about the time Conchita came home, Wally noticed a black Mustang automobile slowly turn right off of Ysmael Villegas Street onto Esperanza Street and park near the public swimming pool. Men got out of the Mustang and immediately began shooting at Gabriel and his friend Michael. Gabriel ran and as he ran he heard bullets hitting a fence on the Esperanza Street side of his grandmother's house; Gabriel jumped over the fence and ran in the back door of Conchita's house. When he heard shots fired, Wally ran in the front door of the house and called police.
While Wally was calling police, Conchita went out to the front of her house where she was confronted by Hernandez. Hernandez pointed a gun at Conchita, but another man, standing behind Hernandez, told him not to shoot. Hernandez then ran down Ysmael Villegas and fired two or three more shots at the house. Conchita ran back into her house and sat down on a couch in the living room, near the front of her house.
Wally went back out into the front yard. He then saw the Mustang turn onto Ysmael Villegas Street from Esperanza Street. Wally saw Hernandez prop himself up in the window of the Mustang, and as the car passed by him he saw Hernandez fire a number of shots at Conchita's house. As she sat in her living room, Conchita heard the shots and saw a bullet hit a glass picture frame above her head.
According to Wally, Hernandez was known in the community as "Sadz."
3. Investigation, Preliminary Hearing, and Shooting of Wally
Police arrived at Conchita's home and began an investigation. In particular, they collected .9 millimeter Lugar shell casings from a handgun, as well as spent bullets and a piece of a bullet. The police also questioned Wally about what he saw and showed him a photo lineup which included a picture of Hernandez. Wally did not identify Hernandez in the photo lineup as a shooter. The following day, Conchita told police Sadz pointed a gun at her, but could not identify him in a photo lineup.
Several weeks later, on October 13, 2006, Hernandez was stopped and arrested as a parole violator. Officer Reeves found a loaded handgun "clip" in Hernandez's pocket. Officers also found a Glock Model 19 .9 millimeter Lugar caliber semiautomatic pistol in a van which was near Hernandez at the time of his arrest. Officer Floyd who was present, again turned on his audio recorder and thanked Hernandez for not shooting it out; Hernandez responded: "Alright man. That's what I planned on doing."
Coincidentally, Wally was in the vicinity of Hernandez's arrest and rode his bike up to the scene of the arrest. On October 19, 2006, Wally spoke with another Riverside police officer, James Simons and told Officer Simons that because Hernandez was arrested, he was willing to cooperate in the police investigation and identify Hernandez as the person who shot at Conchita's house on August 21, 2006. Later, Wally told Officer Simons that he did not previously identify Hernandez in the photo lineups he was shown because Hernandez was not in custody and he feared retaliation against his family.
Wally in fact testified at Hernandez's September 24, 2007 preliminary hearing and identified Hernandez as the shooter he saw on the evening his mother's house was shot up.
On October 1, 2008, Wally was taken to an orange grove by three members of Hispanic street gangs, shot a number of times and left for dead. Wally knew each of the three gang members and believed he was shot in retaliation for his preliminary hearing testimony identifying Hernandez. Following the shooting, Wally is confined to a wheelchair.
4. Trial
a. Prosecution Case
The prosecution presented testimony from a gang expert, Officers Floyd and Reeves, as well as other officers who participated in the investigation, and from Wally and Conchita.
Prior to Wally's testimony, the prosecution moved in limine to present evidence Wally was afraid to testify because Wally believed Hernandez arranged the shooting in which he was so grievously injured. Hernandez moved in limine to exclude evidence. The trial court deferred ruling on the prosecution evidence until it heard Wally's testimony.
Although called as a witness by the prosecution at trial, Wally was unable to identify Hernandez as the shooter and unable to remember identifying Hernandez in a photo lineup or at the preliminary hearing. Wally was also unable to remember telling a Riverside police officer he was afraid to testify because he feared retaliation.
After listening to Wally's testimony, the trial court ruled that although in general evidence that a witness is afraid to testify is admissible as a means of attacking the witness's credibility (see People v. Brooks (1979) 88 Cal.App.3d 180, 187), in this case evidence that Wally's fears were connected to his shooting was far more prejudicial than probative and would be excluded. The prosecutor agreed with the trial court's ruling and indicated that instead of questioning Wally about his fears, the prosecutor would introduce evidence of Wally's fears by way of testimony from the police officer to whom Wally expressed those fears.
Conchita testified later in the trial and was able to identify Hernandez as the shooter. Immediately after she identified Hernandez, Conchita stated, apparently under her breath but in a voice audible to the court reporter: "What have you done to my son?" In response to that statement, Hernandez moved for a mistrial, which the trial court denied. The trial court pointed out the jury may have interpreted Conchita's statement as referring to the August 21, 2006 shooting at her house rather than the October 1, 2008 attack on Wally in the orange grove.
Later in the trial, the prosecution presented evidence from Officer Simons to whom Wally expressed his fears as well as Wally's preliminary hearing testimony in which he explained he was initially unwilling to the identify Hernandez as the shooter "[b]ecause he was still out, and, man, that he is just, don't care. So I -- I ain't trying to put no one in my family into harms way or nothing."
b. Defense Case
Hernandez testified on his own behalf, and although he admitted he was a member of the Vagabundos, and had been imprisoned, he denied being the shooter at Conchita's home. Hernandez also explained he was joking when he told Officers Reeves and Floyd he killed someone.
In addition to his own testimony, Hernandez offered two alibi witnesses.
c. Motion for a New Trial
The jury convicted Hernandez of two counts of attempted murder, two counts of maliciously discharging a firearm into an inhabited dwelling, one count of discharging a firearm from a vehicle, two counts of active participation in a criminal street gang, one count of being a felon in possession of a firearm, and one count of being a felon in possession of ammuntion.
Following the jury's verdict, Hernandez moved for a new trial, on among other grounds that in rendering their verdict the jurors relied on Conchita's statement. His motion was not supported by any juror declarations, but only by an investigator's recollection of what jurors told him. The trial court denied the motion for a new trial. According to the trial court, Wally was "one of the most reluctant and backward witnesses I've ever heard." The trial court reasoned that in light of evidence Wally previously identified Hernandez, that Wally rode his bike to the scene of Hernandez's arrest, and that he then appeared at trial in a wheelchair and was plainly afraid to testify, it was very likely jurors would connect his fear with his injury.
As we indicated, the trial court sentenced Hernandez to a total of 443 years in state prison.
DISCUSSION
I
Hernandez argues the trial court erred in not granting his motion for a mistrial following Conchita's unprompted statement about what Hernandez did to her son. In a related argument, Hernandez contends that in being exposed to Conchita's statement the jury committed a species of misconduct and the trial court erred in failing to grant his motion for a new trial. We find no err in either ruling.
A. Mistrial
As in People v. Ledesma (2006) 39 Cal.4th 641, 683 (Ledesma), "[t]he issue here is whether the witness's comment was so incurably prejudicial that a new trial was required." This issue is largely a matter left to the trial court's discretion. (Ibid.)In Ledesma the defendant was convicted of murder in a prior trial, sentenced to death, and on appeal his conviction was reversed. At his second trial, a witness inadvertently referred to the fact the defendant was on death row. In finding the witness's statement did not require a mistrial, the court stated: " 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.] A witness's volunteered statement can, under some circumstances, provide the basis for a finding of incurable prejudice. (See People v. Wharton (1991) 53 Cal.3d 522, 565 [motion for mistrial properly was denied because court's admonition and witness's later testimony under cross-examination dispelled prejudice]; People v. Rhinehart (1973) 9 Cal.3d 139, 152 [witness's inadvertent answer was insufficiently prejudicial to justify a mistrial].) But we do not presume that knowledge that a defendant previously has been convicted and is being retried is incurably prejudicial. (See People v. Anderson (1990) 52 Cal.3d 453, 468 [claim that trial court improperly disclosed to jury that the defendant previously had been sentenced to death for the same offense was waived by counsel's tactical failure to object, and was not prejudicial].)
"In the present case, the length of time between the crime and the trial and the numerous unavoidable references to witnesses' prior statements created a high risk that the jury would become aware that defendant had been tried previously. As the high court has recognized, 'it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.' [Citation.] We find no basis for concluding, on the present record, that the knowledge that defendant previously had been convicted of murder and sentenced to death was incurably prejudicial." (Ledesma, supra, 39 Cal.4th at p. 683.)
Here of course, counsel did not ask for a curative instruction and we cannot fault counsel for failing to do so. Obviously, further reference to Conchita's statement would only reinforce it and its prejudicial impact in the minds of the jury. (See People v. Marshall (1996) 13 Cal.4th 799, 837-838.) Nonetheless, the record fully supports the trial court's conclusion Conchita's reference to Wally's shooting did not deprive Hernandez of the right to a fair trial.
We begin by recognizing evidence of Wally's fear of retaliation was plainly admissible and quite relevant here. (See People v. Warren (1988) 45 Cal.3d 471, 481; People v. Malone (1988) 47 Cal.3d 1, 30; Evid. Code, § 780.) We must also recognize that notwithstanding Conchita's statement, there was other substantial and fairly powerful evidence of Wally's fear. Wally told Officer Simons about it, testified to the fear at the preliminary hearing, and then testified in a very fearful way at trial.
It is only the implied connection Conchita drew between Wally's well-established fears and Wally's injury which was unduly prejudicial. However, as the trial court noted, there was other evidence which permitted the jury to draw the same conclusion, in particular evidence that although Wally could ride his bike at the time of Hernandez's arrest, he later appeared at trial in a wheelchair and was plainly afraid to testify.
We must of course also recognize the other and quite substantial evidence of Hernandez's guilt, including (1) Wally's earlier identification of Hernandez, (2) the ballistic evidence showing the two expended .9 millimeter Lugar casings recovered at Conchita's home were consistent with having been fired by the Glock found near Hernandez at the time of his arrest, (3) Hernandez's own statement he was a shot caller in his gang, that members of the community were afraid of him when he came into their neighborhoods, and that he previously killed someone. This evidence about Hernandez not only fully supported his conviction, it no doubt created substantial animus toward Hernandez in the minds of the jury. Given the likely impact of this other evidence, the record will not support Hernandez's suggestion Conchita's statement created a new and material level of bias toward Hernandez.
In sum, the record fully supports the trial court's implied determinations Conchita's statement did not have any undue influence on the jury either in its particular evaluation of Wally's testimony or on the ultimate question of Hernandez's guilt or innocence. Accordingly, we cannot conclude in the absence of Conchita's statement it is likely the jury would have returned a verdict more favorable to Hernandez. (See People v. Harris (1994) 22 Cal.App.4th 1575, 1581.)
B. New Trial
In an effort to bring into play the presumption of prejudice which arises when a juror is guilty of misconduct, Hernandez argues the jurors were guilty of misconduct because they heard Conchita's statement. This argument has no merit.
The presumption of prejudice which arises when jurors disobey the court's instructions and engage in their own investigation or otherwise expose themselves to evidence outside the courtroom, is of course well established. (See People v. Marshall (1990) 50 Cal.3d 907, 949) However, as the court held in People v Cooper (1991) 53 Cal.3d 771, 835, where as here, the jury's receipt of evidence was entirely innocent, the presumption has no place: "The cases establishing the presumption of prejudice involve actual misconduct, or, as phrased in People v. Boyd, supra, 95 Cal.App.3d at page 585, 'true jury misconduct.' [Citations.] The rationale for the presumption is venerable. 'A juror is not allowed to say: "I acknowledge to grave misconduct. I received evidence without the presence of the court, but those matters had no influence upon my mind when casting my vote in the jury-room." The law, in its wisdom, does not allow a juror to purge himself in that way.' [Citation.] When a person violates his oath as a juror, doubt is cast on that person's ability to otherwise perform his duties. [Citation.] The presumption of prejudice is appropriate in those situations.
"When, as in this case, a jury innocently considers evidence it was inadvertently given, there is no misconduct. The situation is the same as any in which the court erroneously admits evidence. The fact that the evidence was inadvertently admitted and then withdrawn does not elevate the error to one of misconduct. There has been merely 'an error of law . . . such as . . . an incorrect evidentiary ruling.' [Citation.] Such error is reversible only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. [Citation.]" (People v. Cooper, supra, 53 Cal.3 at pp. 835-836.)
As we have determined, in reviewing the trial court's ruling on the motion for mistrial, Conchita's statement, although unfortunate, was not prejudicial. Hence the trial court properly rejected Hernandez's argument the statement entitled him to a new trial.
II
Next, Hernandez contends the trial court erred in denying his posttrial motion for access to jurors' identifying information. We find no error.
The release of juror identifying information is governed by Code of Civil Procedure sections 206 and 237. As summarized by the court in Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1087, these statutes "require that the personal information of jurors, such as their names, addresses and telephone numbers, be sealed automatically following the recording of the verdict in a criminal case. [Citation.] 'Any person' seeking such information must petition the court and show good cause for disclosure. [Citation.] More specifically, a criminal defendant or defense counsel may obtain this information if he or she petitions the court and demonstrates such information is 'necessary' for a new trial motion or 'any other lawful purpose.' [Citation.]"
In order to establish good cause for release of juror information, a defendant must establish a reasonable belief juror misconduct has occurred. (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) Here, the only basis for Hernandez's claim of misconduct is his contention the jurors improperly considered Conchita's statement. As we have discussed, Conchita's unsolicited statement did not amount to juror misconduct and thus did not support an order releasing juror information.
III
Prior to trial, Hernandez moved to exclude introduction of the recorded statements he made to Officers Reeves and Floyd on August 12, 2006. Counsel argued the recordings violated his right against self-incrimination and were otherwise improper hearsay. The trial court rejected Hernandez's arguments and admitted the recordings. On appeal, Hernandez contends his trial counsel should have specifically objected under Evidence Code section 352 to those portions of the recordings in which he can be heard telling the officers he murdered someone three years after he was shot. Hernandez asserts counsel's failure to object to his statement as excessively prejudicial rendered ineffective assistance of counsel. Counsel committed no prejudicial error.
To establish ineffective assistance of counsel at trial, Hernandez must show his " 'counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' " (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland ).) Hernandez must also must show prejudice. Specifically, he must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694; see also People v. Staten (2000) 24 Cal.4th 434, 451 [confirming Strickland test in California].) "The performance component of the Strickland test need not be addressed first. 'If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' [Citation.]" (Smith v. Robbins (2000) 528 U.S. 258, 286, fn. 14.)
Here, Hernandez cannot show an Evidence Code section 352 objection would have been sustained. Hernandez's boastful admission of the prior murder, made only nine days before the shooting at Conchita's house, was plainly relevant to the gang allegations made against him and his role as a shot caller who created terror in the community. That role and the enthusiastic manner he embraced it, including in particular his reputation as a murderer, were important in establishing not only the gang-related motive for participating in the shooting, but the later unwillingness of Wally and other witnesses to testify against him. Given the importance of Hernandez's reputation as a dangerous killer to all aspects of the case against him, there is no reasonable possibility an Evidence Code section 352 objection would have been sustained. Thus Hernandez was not prejudiced by counsel's failure to make such an objection.
IV
On October 14, 2009, some months after Hernandez's trial, Officer Reeves was charged with four counts of armed robbery, two counts of attempted armed robbery, two counts of assault with a firearm, two counts of burglary, one count of kidnapping, and one count of receiving stolen property. In addition, following his trial, Hernandez discovered that Reeves was addicted to prescription medication in 2008 and 2009. As one of the grounds Hernandez cited in his motion for a new trial, Hernandez argued the recent criminal charges against Reeves and Reeves's prescription medication addiction were new evidence which, if presented to the jury, would have led to a more favorable verdict. The trial court found the evidence would not have made a material difference at trial and denied Hernandez's motion for a new trial in its entirety. We find no abuse of discretion.
As the Attorney General points out, new impeachment evidence is not sufficient to support a new trial because it usually is not significant enough to make a different result probable. (People v. Green (1982) 130 Cal.App.3d 1, 11; People v. Moten (1962) 207 Cal.App.2d 692, 698.) Here, Reeves's principal testimony against Hernandez involved the August 12, 2006 traffic stop during which Hernandez made incriminating statements. As we have indicated, those statements were recorded and the recording was played for the jury. Because the statements were recorded, Reeves's later addiction and offenses would not have materially altered the trial court's ruling on the motion to exclude the recordings or the jury's consideration of them. Thus the new evidence did not warrant a new trial.
V
Finally, Hernandez argues the trial court erred in failing to stay sentences on three of the counts of his conviction. (§ 654.) Again we find no error.
Section 654 provides: "(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. [¶] (b) Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall not be granted probation if any of the provisions that would otherwise apply to the defendant prohibits the granting of probation."
A. Counts 5 and 6
The jury found Hernandez guilty on counts 5 and 6 of the complaint, both of which alleged malicious discharge of a firearm at an inhabited dwelling. (§ 246.) On count 5 the trial court sentenced Hernandez to 45 years to life, plus 20 years on a firearm enhancement, to run consecutive to his conviction of attempted murder; on count 6 the trial court again sentenced Hernandez to 45 years to life, plus 20 years on a firearm enhancement, to run consecutive to the sentence on count 5.
Hernandez argues the sentence on count 6 should have been stayed under section 654. We find no error.
The evidence showed Hernandez shot at Conchita's house after she confronted him in her front yard and while he was running down Ysmael Villegas; the evidence shows he shot at Conchita's house a second time, after Conchita went inside her house, and Hernandez returned driving by her house in the Mustang. These incidents were separated by sufficient time and space to warrant separate punishment. (People v. Andra (2007) 156 Cal.App.4th 638, 640.)
B. Count 8
The jury found Hernandez guilty on count 8 of the complaint which alleged active participation in a criminal street gang on August 21, 2006 (§ 186.22, subd. (a)) and the trial court sentenced him to a consecutive sentence of 25 years to life on that count. On appeal, Hernandez, relying on the holding in People v. Sanchez (2009) 179 Cal.App.4th 1297, 1309-1316, argues his sentence on count 8 should have been stayed because his gang participation was part of the single continuous course of conduct for which he was convicted on counts 5 and 6. We disagree with the holding in People v. Sanchez and believe the contrary holding in People v. Herrera (1999) 70 Cal.App.4th 1456, 1467, is better reasoned.
In finding a gang participation conviction is not subject to section 654, the court in People v. Herrera stated: "Section 186.22, subdivision (a) punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself. Hence, under section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminal street gang. However, he does not need to have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendant's objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense. For example, this subdivision would allow convictions against both the person who pulls the trigger in a drive-by murder and the gang member who later conceals the weapon, even though the latter member never had the specific intent to kill. Hence, section 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime may thus possess 'two independent, even if simultaneous, objectives[,]' thereby precluding application of section 654. [Citation.]" (People v. Herrera, supra, 70 Cal.App.4th at pp. 1467-1468, fns. omitted.)
Here, as in Herrera, Hernandez's active participation in a gang was a well-documented substantive offense and separate from the offenses he committed when he shot at Conchita's house. As in Herrera, his gang participation was not subject to section 654.
The conflict between the holdings in People v. Herrera and People v. Sanchez is the subject of an order granting review in People v. Mesa (2010) _ Cal.App.4th _, review granted Aug. 24, 2010, S185688.
C. Count 15
The jury found Hernandez guilty on count 15 of the complaint which alleged a second count of active participation in a criminal street gang on October 13, 2006 (§ 186.22, subd. (a)), at the time Hernandez was arrested in possession of a firearm and ammunition. Hernandez's possession of a firearm and ammunition on October 13, 2006, was the subject of guilty verdicts on counts 13 and 14. The trial court imposed consecutive sentences on all three October 13, 2006 counts. Once again, Hernandez argues that sentencing on the October 21, 2006, gang participation count should have been stayed under section 654 because it was part of the same course of conduct which supported the firearm and ammunition convictions. Once again, we adopt the reasoning of the court in Herrera and conclude the gang participation conviction was a separate substantive offense and not subject to section 654.
Having found no reversible error, we also reject Hernandez's contention cumulative errors require reversal of his conviction.
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J. I CONCUR:
IRION, J. McDONALD, J., Concurring and Dissenting.
I concur with the majority opinion with the exception of Part V, subparts B and C. In my view, execution of sentence for the convictions on count 8 and count 15 should be stayed under Penal Code section 654.
All statutory references are to the Penal Code.
As the majority opinion points out, count 8 alleged violation of section 186.22, subdivision (a) (gang participation) based on the crimes of malicious discharge of a firearm at an inhabited dwelling (§ 246) alleged in counts 5 and 6. Hernandez contends that because the gang participation offense was part of a single course of conduct with the same objective and intent as the discharge of a firearm offenses, section 654 prohibits execution of sentence on the count 8 gang participation conviction.
Similarly, count 15 also alleged violation of the gang participation offense (§ 186.22, subd. (a)) based on the crimes of a felon in possession of a firearm (§ 12021, subd. (a)(1)) and a felon in possession of ammunition (§ 12316, subd. (b)(1)) alleged in counts 13 and 14. Hernandez contends execution of the sentence on the count 15 conviction should be stayed for the same reason execution of the sentence on count 8 should be stayed.
The majority opinion does not posit that section 654 is not generally applicable to the convictions, but takes the position that it simply does not apply to the gang participation offense described in section 186.22, subdivision (a). The majority opinion recognizes the issue is now pending before the California Supreme Court and prefers the result in People v. Herrera (1999) 70 Cal.App.4th 1456 rather than the contrary result in People v. Sanchez (2009) 179 Cal.App.4th 1297.
In my view, Sanchez convincingly undermines the result and analysis in Herrera and reaches the correct result. I would therefore follow Sanchez and order the stay of execution of the sentences for Hernandez's convictions on counts 8 and 15.
McDONALD, J.