Opinion
F070078
08-02-2017
THE PEOPLE, Plaintiff and Respondent, v. RAMANJIT SINGH HUNDAL, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION
(CHANGE IN JUDGMENT)
It is ordered that the opinion filed herein on August 2, 2017, be modified as follows:
On page 25 through 26, the second sentence of the Disposition is deleted and the following is inserted in its place:
The court is further directed to amend the September 11, 2014, abstract of judgment to strike the section 186.22, subdivision (b)(1) gang enhancements on counts 3 and 4; to strike the $75,000 fine and instead reflect the $7,500 direct victim restitution fine to the VCGCB and $206.36 restitution fine to Rosaura Ramirez is imposed jointly and severally with Luis Flores; as well as amend the abstract of judgment to reflect that the $11,429.74 direct victim restitution fine to the VCGCB is imposed jointly and severally with Anthony Gonzalez, Manuel Gonzalez, Juan Hernandez, Edgar Padilla, Ricardo Villanueva, and Ryan Ramirez.
Appellant's petition for rehearing filed on August 31, 2017, is hereby denied.
/s/_________
FRANSON, J. I CONCUR: /s/_________
LEVY, Acting P.J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F10905457)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. James Petrucelli, Judge. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In three separate cases that were eventually consolidated for trial, Ramanjit Singh Hundal was charged with and convicted of two counts of murder, attempted murder, shooting at an occupied vehicle, shooting from a vehicle at a person, assault with a semiautomatic firearm and street terrorism. Various street gang and firearm enhancements were found true. The trial court sentenced Hundal to a total prison term of 39 years, plus 90 years to life consecutive, plus two consecutive terms of life without the possibility of parole (LWOP).
On appeal, Hundal contends there is insufficient evidence to prove he knew and shared the shooter's intent in one of the murders. He also contends the trial court erred when it failed to give CALCRIM No. 225; when it imposed and stayed, rather than struck, gang enhancements associated with various counts; and when it found true more than one multiple-murder special circumstance. We agree that two of the gang enhancements and one of the multiple-murder special circumstance findings must be stricken. We also agree with Hundal's contention that various corrections must be made to the abstract of judgment. In all other respects, we affirm.
STATEMENT OF THE CASE
These three cases arose out of three separate incidents:
In case No. 10905340, Hundal and Luis Flores were charged with the January 9, 2009, murder of Jose Anthony Pacheco, and active participation in a criminal street gang, as well as various gang and firearm use enhancements (Pen. Code, §§ 187, subd. (a), 186.22, subds. (a), (b)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b), (c), (d), and (e)(1)).
All further statutory references are to the Penal Code unless otherwise stated.
In case No. 10905457, Hundal was charged with the September 12, 2010, murder of Juan Manuel Negrete and attempted murder of Anselmo Salinas Robles, along with defendants Manuel Gonzalez, Ricardo Gabriel Villanueva, Edgar Fernando Padilla and Juan Hernandez, as well as firearm use and gang enhancements (§§ 187, subd. (a), 664, 12022.53, subds. (d), (e)(1), 186.22, subd. (b)(4)(B)).
In case No. 10904770, Hundal and Flores were charged with the September 16, 2010, shooting at an occupied vehicle and assault with a firearm at a Foster's Freeze restaurant, along with active participation in a criminal street gang and various gang and firearm use enhancements (§§ 245, subd. (a)(2), 246, 186.22, subds. (a), (b)(1), 12022.5, subd. (a), 12022.53, subd. (c)).
In 2012, during jury selection for the first case to proceed to trial, the Negrete murder, Hundal's codefendant Hernandez slashed him in the neck. The trial court granted defense counsel's motion to sever Hundal's trial from his codefendants and thereafter consolidated Hundal's three cases.
On May 16, 2014, a sixth amended consolidated information charged Hundal with the following:
Count 1: murder of Juan Manuel Negrete (§ 187, subd. (a)), with the further allegation that a principal discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)); that Hundal was an active participant in a criminal street gang (§§ 186.22, subd. (f), 190.2, subd. (a)(22)); that the offense was committed to benefit a street gang (§ 186.22, subd. (b)(1)); that Hundal personally discharged a firearm (§ 12022.53, subd. (d)); and that the offense is a multiple murder special circumstance (§ 190.2, subd. (a)(3)).
Count 2: attempted murder of Anselmo Salinas Robles (§§ 664, 187, subd. (a)); that a principal personally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)(1)); that the offense was committed to benefit a street gang (§ 186.22, subd. (b)(1)); and that Hundal personally discharged a firearm causing injury (§ 12022.53, subd. (d)).
Count 3: murder of Jose Antonio Pacheco (§ 187, subd. (a)); that a principal personally discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)); that Hundal was an active participant in a criminal street gang (§§ 186.22, subd. (f), 190.2, subd. (a)(22)); that the offense was committed to benefit a street gang (§ 186.22, subd. (b)(1)); that the murder was intentional and perpetrated by discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)); and that the offense is a multiple murder special circumstance (§ 190.2, subd. (a)(3)).
Count 4: shooting from a motor vehicle at a person (§ 12034, subd. (c)); that a principal personally discharged a firearm causing death (§ 12022.53,
subds. (d), (e)(1)); and that the offense was committed to benefit a street gang (§ 186.22, subd. (b)(1)).
Count 5: shooting at an occupied motor vehicle at a person (§ 246); that the offense was committed to benefit a street gang (§ 186.22, subd. (b)(1)); that Hundal personally discharged a firearm (§ 12022.53, subd. (c)); and that a principal personally discharged a firearm (§ 12022.53, subds. (c) and (e)(1)).
Count 6: assault with a semiautomatic firearm (§ 245, subd. (b)); that the offense was committed to benefit a street gang (§ 186.22, subd. (b)(1)); and that Hundal personally discharged a firearm (§ 12022.5, subd. (a)).
Count 7: street terrorism (§ 186.22, subd. (a)).
Hundal was subsequently convicted by jury, as charged. In a bifurcated proceeding, the trial court found true multiple-murder special circumstance allegations on counts 1 and 3.
The trial court sentenced Hundal to a total prison term of 39 years, plus 90 years to life consecutive, plus two consecutive LWOP terms, as follows:
Count 1: LWOP, plus a section 12022.53, subdivisions (d) and (e)(1) consecutive term of 25 years to life, plus a section 186.22 subdivision (b)(1) consecutive 10-year term (stayed).
Count 2: Upper term of nine years, plus a section 12022.53, subdivisions (d) and (e)(1) consecutive term of 25 years to life, plus a section 186.22, subdivision (b)(1) consecutive 10-year term.
Count 3: LWOP, plus a section 12022.53, subdivisions (d) and (e)(1) consecutive term of 25 years to life, plus a section 186.22, subdivision (b)(1) consecutive 10-year term (stayed).
Count 4: Upper term of seven years (stayed pursuant to § 654), plus a section 12022.53, subdivisions (d) and (e)(1) term of 25 years to life (stayed), plus a section 186.22, subdivision (b)(1) term of 10 years (stayed).
Count 5: 15 years to life consecutive to count 2, plus a section 12022.53, subdivisions (c) and (e)(1) consecutive term of 20 years.
Count 6: Upper term of four years (stayed pursuant to § 654), plus a section 12022.5, subdivision (a) term of 10 years (stayed), plus a section 186.22, subdivision (b)(1) term of five years (stayed).
Count 7: Upper term of three years (stayed pursuant to § 654).
STATEMENT OF THE FACTS
January 9 , 2009, Jose Pacheco Murder (Counts 3 and 4)
On the evening of January 9, 2009, the Pacheco family was outside in front of their home in Reedley when a car drove past and someone began shooting. Just prior to the shooting, another neighbor saw a car with four males drive past the house, turn around and drive by again, slowly with its headlights off.
Jose Pacheco died from a gunshot wound in the shooting. Javier Pacheco, Jose Pacheco's uncle, saw a small green hatchback drive around the block and start shooting when it returned, but he did not see the faces of anyone in the vehicle. Jose Pacheco's fiancée, Diana Heredia, also saw the car, which she described as turquoise or blue/green with two doors and tinted windows, drive past. She caught a glimpse of a hand out the passenger window but did not see a gun.
Six nine-millimeter shell casings were collected at the scene. At trial, the parties stipulated that the shell casings from the scene shared the same class characteristics as those associated with a firearm found in April of 2009 at the home of Norteño gang member Saltan Zagsaw. It was also stipulated that one of the cartridges from the shooting had been fired from that same gun; the other five were not tested.
Evidence of the following was presented at trial. In early 2008, the victim Jose Pacheco, a Bulldog gang member, had gotten into a fight with Jose Bastida, a Norteño Varrio Eastside Reedley (VESR) gang member, who lived down the street from the Pacheco family. Members of both families were involved in the fight. Police came and arrests made, but the charges were later dropped.
After the January 2009 shooting, gang-related graffiti appeared on the Pacheco's fence three or four times. In late January of 2009, Luis Flores was contacted by a police officer, who noted Flores was sporting a new "BFK" tattoo, which stands for Bullfrog Killer, Bullfrog being a derogatory term for a Bulldog gang member.
In April of 2009, police stopped Hundal's vehicle for a broken headlight and a cracked windshield. At the time, Bastida was a passenger in the car. Hundal appeared very nervous and was sweating profusely; Bastida was belligerent. A .38-caliber revolver was found under the front passenger seat of the vehicle.
During a jail classification in September of 2010, Hundal was noted as being an active VESR Norteño gang member. September 12 , 2010, Juan Negrete Murder and Anselmo Salinas Robles Attempted Murder (Counts 1, 2 and 7)
On September 12, 2010, Jose Salinas was outside his home on Jefferson Avenue in Reedley, working on a car with his uncle, Anselmo Salinas Robles, and a friend, Juan Negrete. Jose Salinas was sitting inside his truck when he heard gunfire and saw silhouettes of two people standing by the curbside mailboxes. When he got out of the car, Jose Salinas discovered Negrete had been killed and his uncle wounded. Anselmo Salinas Robles heard the gunshots and fell after being shot in the lower back and leg. He passed out after police arrived.
Just before the shooting, a nearby neighbor saw a dark car pass by her house, but did not see how many people were inside the vehicle. She saw two people walk toward the mailboxes at the corner of Cedar and Jefferson and then heard what sounded like fireworks and saw flashes of light.
Another neighbor was out watering his lawn when he heard gunfire coming from two different guns. He then saw two people run down Cedar Street and get into what he believed was a Honda Civic.
Police officers found two spent shell casing near the mailboxes. A total of 10 .30-caliber shell casings were recovered from the scene, all headstamped "RP 30 Carb." A month later, police found a .30-caliber semiautomatic rifle in Adrian Mendoza's bedroom. The parties stipulated that nine of the 10 cartridges recovered from the scene had cycled through the M1 .30-caliber rifle found in Mendoza's bedroom; one casing lacked sufficient detail for comparison.
Detective Janie Ortiz testified Hundal admitted being present during the shooting. At one point, Hundal said there were six people in one vehicle: himself, Manuel Gonzales, Edgar Padilla, Ricardo Villanueva, Juan Hernandez and Luis Flores. September 16 , 2010, Foster's Freeze Shooting (Counts 5 and 6)
On September 16, 2010, Pedro Ochoa drove a coworker to the Foster's Freeze in Reedley for a meal. While waiting for their food, Ochoa noticed a teenager dressed in black inside Foster's Freeze. An older, Arab-looking "cholo" in a red shirt spoke with the teenager and then yelled at Ochoa to come outside. Ochoa did not respond, got their food and began to drive away. Ochoa then saw the "cholo" standing at the corner by the alley; he had a black handgun and fired two shots at Ochoa's vehicle, one shot striking the passenger door.
David Vaughn was at the Foster's Freeze during the incident and noticed some men having angry words with someone inside. Vaughn told police the man who was yelling was wearing red Converse shoes. Vaughn noticed Ochoa's vehicle drive away and saw a man standing nearby. Within seconds, he heard shots fired, but did not see a gun.
Both Ochoa and Vaughn identified Hundal from a photographic lineup; Ochoa as the man who shot him and Vaughn as the man inside the Foster's Freeze yelling at Ochoa.
An officer found two spent .380-caliber shell casings by the alleyway where the shooting occurred. Shortly after midnight, officers executed a search of Hundal's home and located a .380 automatic handgun. Officers also located a pair of red and white Converse shoes in Hundal's bedroom, as well as a gun cleaning kit. The parties stipulated that the gun found in Hundal's home had been test fired and matched the shell casings found at the scene of the shooting.
When interviewed by police, Hundal said some people at the Foster's Freeze were making fun of a "fat kid" who asked for help. Hundal went to challenge the men, but they declined to come outside, so Hundal walked home. When officers told Hundal there had been a shooting and he had been identified as the shooter, Hundal denied being the shooter. He then put his head down and said he did not want to talk anymore. Confidential Informant Cesar Garcia
Cesar Garcia, a long time VESR gang member, contacted police in 2010 after deciding to drop out of the gang. In exchange for a new identity and relocation, Garcia agreed to help law enforcement as a confidential informant and record conversations with other gang members. Garcia recorded many conversations with fellow gang associates/members and periodically met with Detective Kramer, who would then transfer the recordings to a computer. As part of the agreement, Garcia testified at various trials and preliminary hearings.
Garcia and two other seasoned gang members created a "Council of Three" responsible for making gang-related decisions for the local area. In this capacity, Garcia recorded a conversation with Hundal on July 29, 2010. Garcia was familiar with Hundal, who he referred to as "Punjabi" or "Rico." According to Garcia, Hundal was an associate of VESR until 2010, when he became a member.
In the recorded conversation, Hundal admitted being with Flores and Bastida when Pacheco was killed. Hundal told Garcia they were in his "little blue bucket," a Toyota Tercel Hundal later sold. Hundal said they were looking for "scraps," and "I just rolled up on them and he put one foot outside and lit 'em up," Hundal described the gun as a "little[] one that shoots out nines," the same gun a "homie" got caught with in Fresno. They spoke about Flores being the shooter, but that he talked too much and had told others Hundal was the driver.
Garcia also recorded conversations with Flores about the Pacheco murder. He admitted killing Pacheco and said he was with Bastida and Hundal and that Hundal was the driver. Flores said he used a "Tech 9," the one Zagsaw was later caught with.
Hundal also implicated himself with regard to the Negrete murder, telling Garcia, "I lit that up," and "I seen the dad get hit on the shoulder," and that one person tried to run and then fell. Hundal said he unloaded the whole clip and then took off.
Garcia recorded a conversation with Villanueva, who said he sold a long barrel Ruger after he and Hundal committed the Negrete shooting. Villanueva further disclosed it was his first shooting and that Hundal had really "pumped [him] up." Villanueva told Garcia they had driven by the men outside and then drove back and parked. When Hundal "let loose," he did the same, and they then ran back to the car and dropped the guns off at Hector Trejo's house.
Garcia was in jail in Tulare County in late August and early September 2010 for drunk driving and various parole violations. The parties stipulated that Garcia was arrested for aggravated domestic violence in September 2013. Garcia received $99,613.47 in relocation benefits over three and a half years, some of it was paid directly to him and some directly to pay rent. Coconspirator Testimony on the Negrete Murder
Anthony Gonzalez (Anthony) pled guilty to reduced charges for his role in the Negrete killing in exchange for a 22-year sentence and his agreement to testify. He initially denied participation in the event but, after detectives played a recording of him talking with Garcia and Juan Hernandez, Anthony decided to disclose his role in the shooting.
According to Anthony, a day before the shooting, a group of gang members were mourning the loss of another gang member and wanted revenge by shooting some Sureños. The following day they gathered at an abandoned house; Hundal showed up there with a rifle. Anthony heard Hernandez, Padilla and others talk about going out to shoot a couple of houses. Hernandez planned that some of the group would go out and create a distraction by setting a fire on the opposite side of town. They had a police scanner to monitor activity, and once the fire was reported, Hernandez planned to call Padilla. Two cars of gang members drove off and Anthony stayed behind with Hernandez. Later, Hernandez had Anthony go out and break some windows to create another distraction. After everyone returned, Hundal appeared happy and bragged about shooting some "scraps."
Manuel Gonzalez (Manuel) was also charged in the Negrete murder and pled guilty to reduced charges in exchange for a 24-year state prison sentence and his agreement to testify. He also spoke to Garcia about the shooting and his recorded statements were played at trial.
According to Manuel, Hernandez and Padilla contacted him about being a driver that night; he had a Nissan Altima. Earlier in the day at the abandoned house, Manuel heard Padilla and Hernandez talk about the shooting; Hernandez wanted to shoot people, but Padilla just wanted to shoot at houses. At about 7:00 in the evening, Manuel was at the abandoned house with Hundal, Villanueva, Ramirez, Anthony, Hernandez and Padilla. Hernandez appeared to be in charge.
Manuel drove with Padilla and Hundal in one car; Ramirez and Villanueva were in another car. When they drove around the homes of some Southsiders and saw no one, Hundal suggested another house on Jefferson, so they drove there and saw people out on the driveway. After some discussion between the two cars, they drove near the house and Hundal and Villanueva got out, both carrying guns. After Hundal and Villanueva returned to the car, they drove to Hector Trejo's house where Hundal and Villanueva dropped off the guns and washed their hands. Manuel heard Hundal tell someone over the telephone, "someone's down, someone got shot."
Edgar Padilla testified at trial pursuant to a plea agreement whereby he received a 24-year sentence for his role in the shooting. Padilla helped plan the "retaliation" shooting after being contacted by Hernandez and Luna. Luna told Padilla they would use the M1 rifle, and Padilla was present when Hundal and Anthony came by Richie Varela's house to pick up the rifle. Padilla was also present at the abandoned house on the night of the shooting when Hundal had the M1 rifle inside and loaded it.
According to Padilla, Hundal volunteered to be one of the shooters, as did Villanueva. Padilla drove around with the others looking for houses to shoot at, but no one was outside. After Hundal suggested a different location, they drove to the east side of town. There Hundal and Villanueva got out of the car and Padilla heard a lot of gunshots coming from both the rifle and the .44 revolver, which was louder. Hundal and Villanueva ran back to the car and they sped off. According to Padilla, Hundal was happy.
Padilla initially lied about some of the events when he was interviewed by police following his arrest, but eventually gave them the full story. Padilla also told police he knew about the Pacheco murder and disclosed that Flores was the shooter, Hundal the driver and another person, "Chemma," was also in the car. Gang Affiliation
A few days prior to the Negrete murder, Hundal was detained while riding a bicycle at midnight without a light. He initially tried to flee, but crashed the bicycle. At the time, Hundal had a gun and what looked like methamphetamine in his possession. He was wearing red clothing and a hat with a huelga bird, indicative of gang membership. He admitted being a Norteño gang member for about two years.
Gang expert Detective Kyle Kramer testified that the VESR is a subset of the Norteño gang. He testified the primary activities of the VESR include murder, attempted murder, drive-by shootings, assault with deadly weapons, drug sales and weapon possession. He testified about approximately seven predicate offenses committed by other VESR gang members.
Detective Kramer reviewed a packet of information relating to Hundal and opined that he was an active participant in VESR in January of 2009 and September of 2010 when the murders occurred. The material included Hundal's self-admission, his attire, and information about prior police contacts. In response to question involving hypothetical facts paralleling the facts of the three charged shootings, Kramer opined each shooting was committed to benefit the gang.
Detective Kramer acknowledged most VESR and Norteño gang members are Hispanic; Hundal was East Indian. When Hundal was arrested, he claimed to be a Sacramento County Crip and showed a Crip tattoo, although most Crips are African American. Although Hundal had no Norteño or VESR tattoos and was wearing blue, a Crip's color, when arrested in 2010, Kramer still believed Hundal was an active participant in VESR.
DISCUSSION
I. SUBSTANTIAL EVIDENCE SUPPORTS HUNDAL'S CONVICTION ON COUNT 3, THE PACHECO MURDER.
We first address Hundal's challenge to the sufficiency of the evidence supporting his conviction for the Pacheco murder. There was no evidence presented Hundal personally fired the shots from the vehicle and Hundal's claim is that there is insufficient evidence to prove he shared the direct perpetrator's intent to kill Pacheco. Hundal contends "the evidence at most showed [Hundal] intended to participate in a shooting but not that he intended anyone actually be shot or killed." As will be explained, the guilty verdict is supported by substantial evidence and Hundal's challenge to his conviction lacks merit.
Standard of Review
In reviewing the sufficiency of the evidence to support a conviction, this court must determine "'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under this standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment, to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
In making this determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be given the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) Instead, we consider whether "'"any rational trier of fact could have found the essential elements of [the charged offense] beyond a reasonable doubt."' [Citation.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081, original italics.) The conviction will not be reversed unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury. [Citation.]" (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Applicable Law and Analysis
The jury was instructed a conviction of first degree murder required that the crime was committed willfully with premeditation and deliberation or it was committed by shooting a firearm from a motor vehicle. Both theories required proof of intent to kill. The prosecutor argued Hundal, as a nonshooter, was guilty of first degree murder as either an aider and abettor or as part of an uncharged conspiracy to commit murder.
"A person aids and abets the commission of a crime when he or she (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citation.]" (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) "The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. [¶] The actual perpetrator must have whatever mental state is required for each crime charged .... An aider and abettor, on the other hand, 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.' [Citation.] The jury must find 'the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense ....' [Citations.]" (People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123, original italics.)
Likewise, to prove a defendant was a member of a conspiracy, the prosecution must prove, inter alia, the defendant intended or agreed with one or more of the others to commit first degree murder and intended that one of the members of the conspiracy would, in fact, commit first degree murder at the time they made the agreement, and committed an overt act in furtherance of the conspiracy. (CALCRIM No. 416.)
Hundal concedes the evidence showed that Flores, the shooter, "either premeditated killing Pacheco or intended to kill him during the drive-by shooting by virtue of the fact he had [Hundal] slow down and stop so he could shoot the gun." However, Hundal claims, "this does not mean [he] knew of and shared the same intent" and that the record "is devoid of any evidence to show he knew Flores intended to kill anyone or that [he] shared such intent." We disagree.
"Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense. [Citations.]" (People v. Pre (2004) 117 Cal.App.4th 413, 420.) Here, the facts and circumstances surrounding the January 2009 Pacheco murder included evidence that Hundal, Flores and Bastida were all active VESR gang members at the time of the murder. Although Hundal claims he was a "relative newcomer to the area and to VESR" and had "no history with the Pacheco family like Bastida," the prosecutor presented evidence which tied Hundal to the gang. Specifically, that Hundal admitted in September of 2010 that he had been a Norteño gang member for about two years. The VESR is a Norteño subset and the Sureños and Bulldogs were their main rivals.
Additional evidence was presented that, 10 months before the murder, Pacheco, a rival Bulldog gang member had gotten into a fight with Bastida, who lived down the street from Pacheco. In July of 2009, Hundal and Bastida were stopped together while in a vehicle, and a gun found in the car. Also in July of 2009, Hundal had a conversation with confidential informant Garcia, in which he referred to various people in the VESR gang by their monikers and showed Garcia a gun given to him by one member of the gang who the gang expert described as "overall responsible for the activities of the [VESR] gang."
The prosecutor presented evidence that Hundal admitted to Garcia that the Pacheco murder had taken place because "[w]e were looking for scraps, there were no scraps so we just ended up finding them. They just ended up being there." Hundal laughed when he told Garcia they "just rolled up on them and [Flores] put one foot outside and just lit 'em up." Hundal admitted driving the car during the incident, and that they had been looking at a house where he "bucked at the other day," but no one was there so they went to the north side. There was evidence that Hundal then drove the car past Pacheco's residence and went around the block and returned to Pacheco's residence, this time driving slowly with the headlights off, and then the shooting began.
From the entirety of this evidence, a reasonable trier of fact could infer Hundal aided and abetted the drive-by shooting, that Flores possessed the intent to kill and that Hundal, with the knowledge of Flores's intent to kill and for the purpose of assisting him in carrying out that intent, drove past the house in such a way as to allow Flores to more accurately fire at Pacheco in order to kill him. We reject Hundal's argument to the contrary.
II. FAILURE TO INSTRUCT ON CALCRIM NO. 225
The jury was instructed on how to consider circumstantial evidence in accordance with CALCRIM No. 224 as follows:
"Before you may rely on circumstantial evidence to conclude that a fact necessary to find defendant guilty has been proved, you must be convinced that the people have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilty, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
Hundal contends the trial court erred in instructing the jury with CALCRIM No. 224, rather than CALCRIM No. 225. He argues CALCRIM No. 225 is to be used in lieu of the more general CALCRIM No. 224 because a primary contested issue at trial was whether Hundal shared Flores' specific intent to kill Pacheco. We find no prejudicial error.
CALCRIM No. 225 provides: "The People must prove not only that the defendant did the act[s] charged, but also that (he/she) acted with a particular (intent/[and/or] mental state). The instruction for (the/each) crime [and allegation] explains the (intent/ [and/or] mental state required. [¶] A[n] (intent/ [and/or] mental state) may be proved by circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
Applicable Law
The trial court is required to instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) CALCRIM No. 224 states such a principle that must be given sua sponte on those occasions when it is applicable. (People v. Wiley (1976) 18 Cal.3d 162, 174 [discussing CALJIC No.2.01]; People v. Yrigoyen (1955) 45 Cal.2d 46, 49.) It is applicable only when the prosecution substantially relies on circumstantial evidence to establish any element of the case. (People v. Yrigoyen, supra, at p. 49; CALCRIM No. 224, Bench Notes.) The instruction should not be given where circumstantial evidence is incidental to and corroborative of direct evidence. (People v. Anderson (2001) 25 Cal.4th 543, 582; People v. Malbrough (1961) 55 Cal.2d 249, 250-251.)
CALCRIM Nos. 224 and 225 are substantially the same as their predecessors, CALJIC Nos. 2.01 and 2.02. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171, fn. 12.)
CALCRIM No. 225 is to be used in place of CALRIM No. 224 "when the defendant's specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence." (People v. Honig (1996) 48 Cal.App.4th 289, 341 [discussing CALJIC No. 2.02]; see Bench Notes to CALCRIM Nos. 224 and 225.) CALCRIM Nos. 224 and 225 provide essentially the same information on how the jury should consider circumstantial evidence, but CALCRIM No. 224 is more inclusive. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142 [discussing CALJIC Nos. 2.01 and 2.02].)
See footnote 3.
Analysis
Hundal's argument is based on the premise that there was "no other circumstantial evidence being relied on to prove the charged offenses" other than proving his intent in the Pacheco murder. However, a large part of the People's case was founded on circumstantial evidence. For instance, the prosecution relied on circumstantial evidence of appellant's gang membership to show elements of the street gang enhancements, and the fact that Hundal and Flores went "looking for scraps" to show they acted with premeditation and deliberation in killing Pacheco. Thus, the trial court correctly instructed the jury with CALCRIM No. 224 instead of the narrower CALCRIM No. 225.
In any event, any error in instructing with CALCRIM No. 224 was harmless by even the most stringent beyond a reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18, 24. Because the trial court defined circumstantial evidence with CALCRIM No. 223 and delivered the more inclusive instruction under CALCRIM No. 224, as well as instructing on the union of act and intent with CALCRIM No. 251, its failure to instruct with CALCRIM No. 225 clearly was not prejudicial error. (People v. Rodrigues, supra, 8 Cal.4th at p. 1142.) CALCRIM No. 224 adequately told the jury how to evaluate circumstantial evidence with regard to motive and intent, as well as the other elements of the crimes. We reject Hundal's claim to the contrary.
III. IMPOSITION AND STAY OF GANG ENHANCEMENTS ON COUNTS 3 AND 4
In connection with count 3 (the Pacheco murder) and count 4 (shooting from a motor vehicle at a person), the jury found true the allegations that (1) a principal discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d) & (e)(1); and (2) the crimes were committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)). At sentencing, the trial court imposed consecutive terms of 25 years to life for the two firearm enhancements and imposed and stayed terms of 10 years for the two gang enhancements. Hundal contends the two gang enhancement 10-year terms attached to counts 3 and 4 must be stricken instead of stayed. Respondent agrees, as do we.
Section 12022.53, subdivision (e)(2) provides: "An enhancement for participation in a criminal street gang ... shall not be imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense." As stated by our Supreme Court in People v. Brookfield (2009) 47 Cal.4th 583, 590, "when another principal in the offense uses or discharges a firearm but the defendant does not, there is no imposition of an 'enhancement for participation in a criminal street gang ... in addition to an enhancement imposed pursuant to' section 12022.53. [Citation.]"
Hundal was not charged with and the jury did not find he personally and intentionally discharged a firearm in connection with counts 3 and 4. Thus, the trial court erred when it imposed and stayed the gang enhancements on counts 3 and 4, and they must instead be stricken. (See People v. Brookfield, supra, 47 Cal.4th at pp. 590, 596-597.)
IV. IMPOSITION OF BOTH THE GANG ENHANCEMENT AND PERSONAL USE OF A FIREARM ENHANCEMENT ON COUNT 6
In connection with count 6 (assault with a semi-automatic firearm), pursuant to section 245, subdivision (b), the jury found true the allegations that Hundal personally used a firearm (§ 12022.5, subd. (a)) and that he committed the offense to benefit a criminal street gang (§ 186.22, subd. (b)). The trial court imposed and stayed a 10-year term for the firearm enhancement and imposed and stayed a five-year term for the gang enhancement. Hundal contends the trial court violated section 1170.1, subdivision (f) by imposing and staying the five-year gang enhancement on count 6. He argues this enhancement should not have been imposed at all and must be stricken because section 1170.1 gave the court authority to impose only the greatest of the applicable enhancements, which in this case was the 10-year firearm use enhancement. Respondent argues that, while section 1170.1, subdivision (f) "prohibits imposing and executing two sentence enhancements based on the firearm use, it does not prohibit a trial court from imposing and staying the contested enhancements." We agree with respondent.
Section 1170.1, subdivision (f) prohibits multiple enhancements of punishment as to a single offense for being armed with or using a firearm or dangerous deadly weapon. That section states, in part:
"When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a
single offense, only the greatest of these enhancements shall be imposed for that offense." (§ 1170.1, subd. (f).)
The Supreme Court explained the proper application of section 1170.1, subdivision (f) in People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez), in which the facts are similar to the ones at issue here. In Rodriguez, a jury found the defendant guilty of three counts of assault with a firearm and further found he personally used a firearm (§ 12022.5, subd. (a)) and committed the assaults to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)). (Rodriguez, supra, at p. 504.) The trial court relied upon the firearm findings to conclude each assault was a "violent felony" within the meaning of section 667.5, subdivision (c)(8), which elevated the punishment associated with the gang enhancements from two, three, or four years to 10 years (§ 186.22, subd. (b)(1)(A), (C)). (Rodriguez, supra, at p. 505.) The trial court then imposed and executed both the firearm enhancements and the gang enhancements. (Id. at p. 506.) The Supreme Court held the double use of the enhancements violated section 1170.1, subdivision (f). (Rodriguez, supra, at p. 504.) The Supreme Court noted that the defendant became eligible for the 10-year gang enhancement "only because he 'use[d] a firearm which use [was] charged and proved as provided in ... Section 12022.5.' (§ 667.5, subd. (c)(8))." (Id. at p. 509.) "Thus, defendant's firearm use resulted in additional punishment not only under section 12022.5, subdivision (a) ... but also under section 186.22's subdivision (b)(1)(C) .... Because the firearm use was punished under two different sentence enhancement provisions, each pertaining to firearm use, section 1170.1's subdivision (f) requires imposition of 'only the greatest of those enhancements' with respect to each offense", which is the 10-year gang enhancement. (Ibid.) The Rodriguez court accordingly concluded that the trial court's imposition and execution of the section 12022.5 firearm enhancement violated section 1170.1, subdivision (f), and remanded the matter for resentencing to allow the trial court to "restructure" its sentencing choices. (Rodriguez, supra, at p. 509.)
Generally, a defendant is exempt from a section 12022.5 enhancement if the "use of a firearm is an element of" the charged offense. (§ 12022.5, subd. (a).) But section 12022.5 contains an exception if a defendant commits a section 245 violation using a firearm. (§ 12022.5, subd. (d).) Therefore, despite the fact that the defendant in Rodriguez and Hundal's section 245 violation here included the element of the use of a firearm, their crimes are not exempt from enhancement under section 12022.5.
Here, as to count 6, the jury found true the allegation that Hundal personally used a firearm in the commission of the offense, in violation of section 12022.5, subdivision (a). This statute provides that any person who personally uses a firearm in the commission of an offense shall be punished "by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years ...." (§ 12022.5, subd. (a).)
The jury also found true the gang enhancement, section 186.22, subdivision (b)(1), which "provides different levels of enhancement for the base felony if that felony 'is 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 ....' (§ 186.22, subd. (b)(1).)" (People v. Le (2015) 61 Cal.4th 416, 423 (Le).)
"If the base felony qualifies as a violent felony under the list of felony crimes contained in section 667.5, then 'the person shall be punished by an additional term of 10 years.' (§ 186.22, subd. (b)(1)(C).) If the base felony qualifies as a serious felony under the list of felony crimes contained in section 1192.7, then 'the person shall be punished by an additional term of five years.' (§ 186.22, subd. (b)(1)(B).) If the base felony qualifies neither as serious nor violent, then 'the person shall be punished by an additional term of two, three, or four years at the court's discretion.' (§ 186.22, subd. (b)(1)(A).) Section 186.22, subdivision (b)(1)'s three sentence provisions ... reflect the intention to impose progressively longer sentence enhancements based on the severity of the felony categorized across three tiers.... [T]he sentence enhancements in section 186.22, subdivision (b)(1) are mandatory - all three provisions specify that the additional punishment 'shall' be imposed." (Le, supra, 61 Cal.4th at p. 423.)
Section 1192.7, which lists the felonies that qualify as serious felonies, refers to several crimes that involve the personal use of a firearm or a deadly weapon, as applicable here. (See § 1192.7, subd. (c)(8), (23).) Section 667.5, which lists the felonies that qualify as violent felonies, refers to only one crime that necessarily involves the use of a firearm or deadly weapon - "any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55." (§ 667.5, subd. (c)(8).)
The People did not specify whether their complaint sought to impose the section 186.22 gang enhancement as a violent felony, serious felony, or other felony. Instead, the People generically pled the gang enhancement under section 186.22, subdivision (b)(1), and asked that the trial court impose a five-year enhancement. Because subdivision (b)(1)(B) is the only provision of section 186.22, subdivision (b)(1) that calls for the imposition of a five-year enhancement, we assume the People sought to categorize that enhancement as a serious felony for purpose of section 1192.7.
Under the reasoning of Rodriguez, imposition of both enhancements based on Hundal's gun use was error. Yet unlike Rodriguez, in which the trial court imposed and executed the firearm enhancements, the trial court here imposed and stayed the enhancements at issue (and, moreover, stayed the sentence on count 6 completely under section 654). This is a critical difference.
In People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez), the Supreme Court considered whether section 12022.53, subdivision (f), which provides that when "'more than one enhancement per person is found true under this section, the court shall impose on that person the enhancement that provides the longest term of imprisonment,'" and required that the enhancements providing shorter terms of imprisonment "must be stayed or stricken." (Gonzalez, supra, at pp. 1123, 1125, original italics.) The Gonzalez court concluded the answer to the query was that "the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed." (Id. at p. 1123.) The Gonzalez court arrived at this conclusion by construing the term "impose" as used in section 12022.53, subdivision (f), as shorthand for "impose and then execute." (Gonzalez, supra, at p. 1126, original italics.) Accordingly, the Gonzalez court concluded that section 12022.53, subdivision (f), "directs that only one enhancement may be imposed and then executed per person for each crime, and allows a trial court to impose and then stay all other prohibited enhancements." (Gonzalez, supra, at p. 1127, original italics.) Even though it did not rely upon California Rules of Court, rule 4.447 in its analysis (Gonzalez, supra, at p. 1130), the Gonzalez court also noted that the rationale underlying that rule and section 654—preservation of the possibility that a stayed portion of a sentence could be imposed if the unstayed portion is reversed on appeal—also was served by its construction of section 12022.53, subdivision (f). (Gonzalez, supra, at pp. 1128-1129.)
Rule 4.447, entitled "Limitation on enhancements," provides: "No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitation on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent on the defendant's service of the portion of the sentence not stayed." An Advisory Committee Comment to rule 4.447 notes that "[s]tatutory restrictions may prohibit or limit the imposition of an enhancement in certain situations," and cites among the exemplar statutory restrictions, inter alia, section 1170.1, subdivision (f).
Recently, in Le, the court applied the principles articulated in Rodriguez while implicitly endorsing the impose-and-stay procedure articulated in Gonzalez. In Le, the defendant was convicted of assault with an automatic firearm (§ 245, subd. (b)), and the jury found true allegations that the defendant personally used a firearm (§ 12022.5, former subd. (a)(1)) and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). (Le, supra, 61 Cal.4th at p. 420.) "At the sentencing hearing, the parties contested the applicability of Rodriguez ...." (Id. at p. 421.) The trial court concluded that, "under Rodriguez, it could not impose terms for both enhancements because the jury's findings made defendant's assault a violent felony under section 667.5, thereby making the applicable enhancement the same 10-year term under section 186.22, subdivision (b)(1)(C)" and accordingly "imposed the 10-year term for that enhancement, but stayed any sentence enhancement under section 12022.5, subdivision (a)." (Le, supra, at pp. 421, 422, italics added.) The court of appeal affirmed the trial court's imposition and stay of the section 12022.5 enhancement. (Le, supra, at p. 422.) The Supreme Court likewise affirmed, while simultaneously holding that "a trial court is precluded from imposing both a firearm enhancement under section 12022.5, subdivision (a)(1) and a serious felony gang enhancement under section 186.22, subdivision (b)(1)(B) when the crime qualifies as a serious felony solely because it involved firearm use." (Le, supra, at p. 429.) Thus, it concluded that enhancements are not impermissibly double-counted where any duplicative enhancement is imposed and stayed.
Following the reasoning articulated above, we find no error on the part of the trial court in imposing and then staying the gang enhancement on count 6.
V. MULTIPLE-MURDER SPECIAL CIRCUMSTANCE ENHANCEMENTS
The trial court found two multiple murder special circumstance allegations true - one in connection with count 1 and the other in connection with count 3.
Hundal contends, and respondent agrees, that when multiple murders are pled and proved in a single proceeding, only one multiple-murder special circumstance allegation applies. (People v. Danks (2004) 32 Cal.4th 269, 315; People v. Jones (1991) 53 Cal.3d 1115, 1148.) We agree, but conclude Hundal suffered no prejudice.
The remedy is to strike the superfluous finding and order one of the two multiple-murder special circumstance allegations stricken. (People v. Halvorsen (2007) 42 Cal.4th 379, 422.)
However, as acknowledged by Hundal, multiple LWOP sentences are nevertheless still proper. (People v. Garnica (1994) 29 Cal.App.4th 1558, 1562-1564.) --------
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
Hundal claims that, in the event any of the sentencing issues he raised were forfeited by counsel's failure to object below, he received ineffective assistance of counsel. Because we have addressed all issues on the merits, this claim is moot.
VII. ABSTRACT OF JUDGMENT
Hundal finally contends various errors in the abstract of judgment must be corrected. Respondent agrees, as do we.
As to counts 3 and 4, the trial court ordered Hundal to pay restitution pursuant to section 1202.4, subdivision (f) to the Victim Compensation and Government Claims Board (VCGCB) in the amount of $7,500 and $207.36 to Rosaura Ramirez. The trial court ordered further that Hundal be held joint and severally liable for these amounts with Luis Flores. The abstract of judgment incorrectly states Hundal was ordered to pay $75,000 in direct restitution, not $7,500 and $207.36. The abstract of judgment also fails to state Hundal is jointly and severally liable for this amount with Flores. The abstract of judgment is ordered corrected to properly reflect this.
As to counts 1 and 2, the trial court ordered Hundal to pay $11,429.74 in direct restitution to the VCGCB, and Hundal was to be held jointly and severally liable with Anthony Gonzalez, Manuel Gonzalez, Juan Hernandez, Edgar Padilla, Ricardo Villanueva, and Ryan Ramirez. While this amount of victim restitution is accurately reflected in the abstract of judgment, the fact that the court ordered Hundal to be jointly and severally liable for that amount is not. The abstract of judgment is ordered corrected to properly reflect this.
DISPOSITION
The trial court is directed to amend the June 25, 2014, minute order to vacate finding #40, the special circumstance multiple murder finding within the meaning of section 190.2, subdivision (a)(3) as to count 1. The court is further directed to amend the September 11, 2014, abstract of judgment to strike the $75,000 fine and instead reflect the $7,500 direct victim restitution fine to the VCGCB and $206.36 restitution fine to Rosaura Ramirez is imposed jointly and severally with Luis Flores; as well as amend the abstract of judgment to reflect that the $11,429.74 direct victim restitution fine to the VCGCB is imposed jointly and severally with Anthony Gonzalez, Manuel Gonzalez, Juan Hernandez, Edgar Padilla, Ricardo Villanueva, and Ryan Ramirez. The court shall forward certified copies of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J.