Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA348244, Monica Bachner, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Jorge Hernandez (appellant) was convicted by jury of assault with a firearm (count 4), unlawful firearm activity (count 5), and two counts of carrying a loaded unregistered firearm while actively participating in a gang (counts 6 and 7). (Pen. Code, §§ 245, subd. (a)(2), 12021, subd. (e), 12031, subd. (a)(1) and (2)(C).) The jury also found that he personally used a firearm and that the offenses were committed for the benefit of a criminal street gang. (§§ 12022.5, 186.22, subd. (b)(1)(A).) In a separate proceeding, appellant admitted that he had suffered a prior felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) and that he was out on bail or on his own recognizance in another case at the time he committed the offenses. (§ 12022.1.) He was sentenced to 17 years and four months in prison.
All subsequent undesignated statutory references are to the Penal Code.
On appeal, he contends the trial court should have bifurcated the gang enhancement and committed sentencing error. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 9, 2008, Los Angeles Police Officers Matthew Vocke and Philip Zalba responded to a radio call concerning gang activity on North Douglas Street. They were assigned to the department’s gang detail and knew that the Head Hunters gang controlled the area. When they arrived, Officer Vocke saw two people in the street and appellant walking around a van. The area was fairly well-lit. Appellant looked surprised, reached into his waistband, and ran. Believing that appellant was reaching for a weapon, the officers pursued him and saw eight males running in different directions. Officer Vocke saw appellant toss a handgun and go into a building. The officers set up a perimeter around the building but were unable to apprehend appellant. They detained three other men, Richard Villascusa, Alvaro Moran, and Daniel Grijalva, two of whom were Head Hunters gang members. Officer Zalba recovered a loaded.40 caliber semiautomatic handgun from the porch of the building. Villascusa had.40 caliber ammunition in his possession.
Appellant was charged with three firearm offenses stemming from this incident. The jury found him not guilty of all counts.
On October 13, 2008, at approximately 4:30 a.m., Rudy Monzon was working at a catering company on Glendale Boulevard in Los Angeles, which was close to North Douglas Street. He was inside the front portion of the building. A delivery driver came in and said that there were some people in the back of the building causing trouble. Monzon and the driver went to the back of the store. Two Hispanic men were standing about 20 feet away, behind a chain link fence. Monzon identified appellant as being one of them. Appellant told Monzon, “Come here. We want to talk to you.” Monzon did not approach them. He told the men to leave the driver alone. Appellant persisted in asking him to come closer and mentioned the Head Hunters gang. Monzon told the men to go to sleep and to let him do his job. Appellant appeared angry and kept talking. He and his companion started throwing bottles at the store. Appellant then pointed what looked like a gun. Monzon and the driver went inside the store and called the police. About 30 minutes later, police arrived, pointed a spotlight at the building and left without finding or apprehending anyone.
At around 6:30 a.m., Monzon was working near the back of the store when appellant appeared and called out to him. Appellant asked, “Why did you call the cops?” Monzon asked appellant if he wanted to fight. Appellant’s companion told appellant to “just chill out.” Monzon went back inside and heard a gunshot. Monzon told everyone to stay inside and closed the door.
A little later that morning, Monzon went to the back of the store to unload a delivery truck. Monzon thought that it was around 8:30 a.m. or 9:00 a.m. He saw appellant at the top of the stairs of the nearby building, and appellant yelled, “[W]here are you going? It’s not over.... I ain’t going nowhere.” Appellant pulled a gun out from his sleeve, pointed it at Monzon with two hands and fired. Appellant then yelled, “Head Hunters gang, ” twice and made a hand sign for the letter “H.” Monzon called the police and told them that appellant was wearing a Dodgers pullover sweatshirt.
Jean Michno, who was working in the catering company, heard a gunshot. She estimated the shot was fired between 8:30 a.m. and 8:45 a.m. She was certain it occurred before 9:00 a.m.
The police searched the area and found a broken beer bottle but did not find any shell casings.
On October 24, 2008, Los Angeles Police Officers Jonathan Campbell and his partner Officer Chang were patrolling the Head Hunters gang’s neighborhood. They saw appellant and detained him based upon Officer Vocke’s report of the October 9 incident. Officer Vocke arrived on the scene and positively identified him. Later that day, Monzon was shown a photographic lineup and selected appellant’s photograph.
At trial, Monzon said that he had a clear view of appellant during the incidents that took place on October 13 and again positively identified appellant. He testified that at the preliminary hearing, appellant had gestured at him, showing him his middle finger. A bailiff who was present at the preliminary hearing testified at trial, confirming that appellant gestured towards Monzon during that hearing.
Monzon also identified appellant at the preliminary hearing.
Officer Campbell testified as a gang expert at trial. He knew that appellant was an active Head Hunters gang member and was part of its DKS clique, which claimed the block of Douglas Street where Officer Vocke had seen him. The clique only had about 10 active members. The gang had a hand sign that formed the letter H. Their primary activities were murder, carjacking, robbery, assault with deadly weapons, firearm possession, and vandalism. As with other gangs, the members were usually promoted for doing errands and crimes for the gang. Appellant was arrested in the area of North Douglas Street and Glendale Boulevard and was surrounded by freshly painted graffiti of his gang moniker “Lil Gee” and Head Hunters initials. Appellant’s MySpace account listed his name as Lil Gee and his city as “Los Angeles, Head Hunters Gang” and contained pictures of appellant making Head Hunters gang signs. Officer Campbell identified several pictures of appellant which were posted on the MySpace website. Officer Campbell identified pictures of several other Head Hunters gang members and testified about their convictions for various violent and firearm related offenses. Officer Campbell opined that the firearm possession and the actions appellant took during the incident involving Monzon benefitted the Head Hunters’ gang reputation and showed appellant’s loyalty to the gang.
Appellant did not testify on his own behalf but did call several witnesses. His mother, Lidia Marquez, testified that on October 9, appellant was with her doing laundry. On October 13, appellant slept until 7:30 a.m., Marquez gave him a ride to school at 8:00 a.m., and the ride took 25 to 30 minutes. Appellant did not have any clothing with the Dodgers logo and he did not have any guns.
Appellant was a student at the Roybal Learning Center, which was approximately a five-minute walk from Monzon’s catering company. Appellant’s history teacher, Gracia Martinez, testified that appellant was in her first period class which started at 8:20 a.m. Appellant was marked “tardy” in her attendance records for October 13, 2008, but her records showed he arrived before 8:40 a.m. He was present at school for the rest of the day. Martinez did not believe he was under the influence of alcohol or drugs. She knew he was not wearing a Dodgers sweatshirt because it was against school policy to do so.
Appellant also called the Los Angeles Police Department’s forensic print specialist who examined the glass bottle found by Monzon. She found usable fingerprints but they did not match appellant’s or any other fingerprints in her system.
Robert Shomer, an experimental psychologist, testified about the inaccuracy of eyewitness identification and several factors which would have adversely affected the accuracy of the photographic identification. He did testify, however, that a suspect’s gang affiliation might be relevant if there were only 10 members in the gang.
DISCUSSION
I. The Trial Court Did Not Err in Denying the Bifurcation Motion
Prior to trial, appellant’s trial counsel moved to bifurcate the gang allegation, claiming that the gang evidence was not material to the underlying charges and was unduly prejudicial. The prosecutor argued the evidence was relevant to show motive, as the location of the two incidents was within the gang’s territory and “it’s a very small gang; [and the location] is really the only territory of this gang.” The trial court denied the defense motion, noting that appellant’s active participation in gang activities was an element of two of the counts and concluding the evidence was also relevant to demonstrate appellant’s motive.
Appellant contends that although some of the gang evidence was relevant, much of it was unnecessary and unduly prejudicial, and thus the court erred in denying his motion to bifurcate the gang enhancement. He contends that the admission of the numerous photographs of appellant making gang signs and Officer Campbell’s lengthy testimony about the conduct of the Head Hunters gang went far beyond what was necessary to prove the gang allegations. We disagree.
The trial court has discretion to bifurcate trial of the gang enhancement from that of the underlying charges. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) We agree with the trial court that the gang evidence was relevant to prove some of the underlying counts and to show appellant’s motive for committing the charged crimes. In addition, given the fact the clique of the gang which claimed the territory where the crimes were committed consisted of approximately only 10 members, appellant’s membership in the clique was relevant to establish his identity as the perpetrator. “To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (Id. at pp. 1049-1050.)
We reject appellant’s assertion that the trial court allowed more evidence than “what was reasonable or necessary to prove appellant’s gang association.” Appellant’s defenses were alibi and misidentification. The gang evidence clearly bolstered the reliability of Officer Vocke’s and Monzon’s identifications of appellant. Indeed, the perpetrator of the assault on Monzon made it clear that he was a Head Hunters gang member. As we have discussed, appellant’s membership in the gang was significant as there were an extremely limited number of members in the area where the crimes were committed. The photographs demonstrating appellant’s strong identification with the gang and his willingness to broadcast his membership to the public established his motive to carry out the assault in order to intimidate Monzon and his coworkers. The trial court correctly found that the gang evidence was directly related to and probative of the underlying offenses.
Moreover, appellant cannot establish that he was prejudiced by the court’s ruling. The court, as a cautionary measure, instructed the jury not to improperly infer from the gang evidence that appellant had a criminal disposition. The jury found appellant not guilty of two counts of carrying an unregistered firearm while participating in a gang and one count of unlawfully possessing a firearm, demonstrating that it followed the court’s instruction. (People v. Williams (2009) 170 Cal.App.4th 587, 612-614; People v. Martin (1994) 23 Cal.App.4th 76, 82.)
We conclude that the court acted within its discretion in denying bifurcation. (People v. Hernandez, supra, 33 Cal.4th at pp. 1050-1051.)
II. The Trial Court Properly Exercised Its Discretion in Imposing Sentence
Appellant was convicted in court 4 of assault with a firearm and in count 5 with unlawfully possessing a firearm. He urges the court erred by failing to stay the sentence for count 5 pursuant to section 654 because the offenses were part of an indivisible course of conduct.
At the time of sentencing, appellant’s trial counsel argued that the sentence on count 5 (in addition to counts 6 and 7) merged with count 4 and should be stayed pursuant to section 654. The prosecution disagreed, claiming that “the additional element, with respect to those counts, ... the fact that this particular defendant has previously been convicted of a crime that, at the time, [forbade] him from possessing a firearm” made those counts “separate and distinct from count 4.”
The court imposed a consecutive sentence for count 5 and stayed the imposition of sentence on counts 6 and 7. It stated: “[A]s to the 654 issue, [the] court does not believe that count 5 should be 654’d to count 4. Or, in other words, made concurrent [sic], because it does have separate elements, and I’m not going [to] stay it. The other ones, I will. Count 5 is not — it’s an independent crime. It’s not merely incidental to count 4.” (Italics added.)
Appellant asserts the court based its decision not to stay sentence on count 5 solely on the fact that the charge had an element not present in the assault charge in count 4, his prior juvenile adjudication. He reads the court’s ruling too narrowly. While it is true the court agreed with the prosecution’s assessment that the crimes had separate elements, it also stated that count 5 was an independent crime and not merely incidental to count 4. Thus, the question is whether there is substantial evidence to support the court’s express finding that appellant’s firearm possession was a separate and distinct offense from the assault charge and its implied finding that he harbored a separate intent and objective for each offense. We conclude there is.
Section 654 precludes multiple punishment for crimes that involve a single act or are part of an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) “‘The question whether [Penal Code] section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.’ [Citation.]” (People v. Tarris (2009) 180 Cal.App.4th 612, 626.) We view the evidence in the light most favorable to the respondent and presume the existence of every fact the court could reasonably deduce from the evidence in fashioning its sentence. (Id. at p. 627.)
The evidence reflects that appellant possessed the gun when he first contacted Monzon at 4:30 a.m. Thus, his possession was antecedent to and separate from his later use of the weapon when he fired at Monzon. He necessarily intended to possess the weapon prior to confronting Monzon and then used it to carry out his independent intent to assault Monzon. Unlike the perpetrators in the cases relied upon by appellant, People v. Bradford (1976) 17 Cal.3d 8 and People v. Venegas (1970) 10 Cal.App.3d 814, he did not come into fortuitous possession of the weapon shortly before he fired it. In Bradford, the defendant struggled with an officer, got control of the officer’s gun, and fired it. (People v. Bradford, supra, 17 Cal.3d at pp. 21-23.) In Venegas, the victim pulled a gun, the defendant grabbed him, and during the struggle the defendant shot the victim. (People v. Venegas, supra, 10 Cal.App.3d at pp. 818-821.) Each court determined that the defendant could not be sentenced for possessing and using the firearm. However, in the present case, the evidence supports the inference that appellant possessed the firearm with an independent intent prior to committing the assault. Punishment for counts 4 and 5 was appropriate. (People v. Jones (2002) 103 Cal.App.4th 1139, 1147-1148 [defendant who possessed firearm prior to going to former girlfriend’s house and firing at the residence was properly sentenced for illegal possession of a firearm and shooting at an inhabited dwelling]; (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1413-1414 [defendant who used firearm in commission of robberies properly sentenced for use and unlawful possession of the weapon].)
Appellant also contends that the gang enhancement imposed on count 5 should have been stayed because it involved the same course of conduct and objective as the gang enhancement imposed on count 4. We disagree.
Section 654 does not prohibit punishing a defendant both for violating section 186.22, subdivision (a) and for the underlying crime when the two offenses involve different objectives. (People v. Bragg (2008) 161 Cal.App.4th 1385, 1402-1403; People v. Garcia (2007) 153 Cal.App.4th 1499, 1514.)
Finally, appellant argues that the court erred in using the fact of appellant’s prior adjudication as a factor to support the imposition of a consecutive term for count 5, as his prior was an element of the offense. He claims the court also used that fact as a reason not to stay the sentence imposed on count five. We are not persuaded.
Initially, we address the issue of forfeiture. Appellant failed to object to the reasons utilized by the trial court to impose consecutive terms at the sentencing hearing and the Attorney General alleges that appellant forfeited his claim. We agree. The forfeiture doctrine applies “to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which... the court purportedly erred because it double-counted a particular sentencing factor... or failed to state any reasons or give a sufficient number of valid reasons.” (People v. Scott (1994) 9 Cal.4th 331, 353; People v. de Soto (1997) 54 Cal.App.4th 1, 8-9.)
In any event, we find this contention to be without merit. Appellant is correct that California Rules of Court, rule 4.425(b)(3) provides that a court may not consider a fact that is an element of the crime to impose a consecutive sentence. However, the trial court specifically cited several factors to support its consecutive sentencing choice: the crime involved the threat of great bodily injury, the manner in which the crime was carried out demonstrated planning, appellant’s criminal record, the increasing seriousness of appellant’s criminal conduct, the fact that appellant was a serious danger to society due to his violent conduct, and the fact that counts 4 and 5 involved separate crimes that were not merely incidental to each other. We find no error in the imposition of consecutive sentences.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P.J., WILLHITE, J.