Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF 127744, Elisabeth Sichel, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Lise S. Jacobson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Following a jury trial, defendant was convicted of unlawful taking and driving a Lincoln Aviator on December 23, 2005, and taking and driving a GMC Envoy on December 27, 2005 (Veh. Code, § 10851, subd. (a); counts 1 and 7). As to both vehicle thefts, defendant was convicted of willful participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); counts 5 and 11).
Unless otherwise noted, all statutory references are to the Penal Code.
When defendant drove off in the Aviator, the victim’s 10-month-old child was sitting in the backseat. As a consequence, defendant was convicted of misdemeanor false imprisonment of the child victim (§ 236; a lesser offense of count 9) and child endangerment (§ 273a, subd. (a); count 10).
With regard to the December 27 theft of the Envoy, defendant was convicted of receiving stolen property (§ 496d, subd. (a); count 2); evading a peace officer with willful and wanton disregard for safety (Veh. Code, § 2800.1; count 3); and carrying a concealed firearm while an active member of a criminal street gang (§ 12025, subd. (b); count 4).
The jury also found true allegations as to counts 1 and 3 that a principal was armed with a firearm (§ 12022, subd. (a)(1); and as to counts 1, 2, 3, and 7, that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (a)).
Count 8 was dismissed on the prosecutor’s motion in the interest of justice (§ 1385) and counts 12, 13, and 14 were dismissed due to insufficient evidence.
The trial court sentenced defendant to nine years four months in state prison.
Defendant contends his convictions on counts 5 and 11, for willful participation in a criminal street gang (§ 186.22, subd. (a)), must be reversed because counts 5 and 11 are lesser included offenses of count 4, carrying a concealed firearm while an active member of a criminal street gang (§ 12025, subd. (b)). We agree as to count 5 but not as to count 11, because count 4 occurred when defendant possessed a loaded gun at the time of the December 27 car theft. Since the section 186.22, subdivision (a) offense, commonly referred to as street terrorism, is not a continuing offense, count 11, which concerns street terrorism on December 23, is not a lesser included offense of count 4, which was committed on December 27.
Because defendant could not have committed count 5 without necessarily committing count 4 at the same time, we conclude the trial court erred in not vacating the conviction on count 5. Both offenses occurred on December 27, 2005. Because count 11 was committed on December 23, 2005, it was not a lesser included offense of count 4. The judgment is affirmed, with the exception of defendant’s conviction on count 5, which is reversed.
The trial court stayed defendant’s sentence on count 5 under section 654. Therefore, reversal of count 5 will not change the length of defendant’s prison term.
1. Facts
Because the issues raised in this appeal do not turn on disputed facts, we limit our recitation of the facts to the following brief summary of the facts.
December 23 Car Theft
On December 23, 2005, at around 7:00 a.m., Jason C. put his 10-month-old son, W.C., in a car seat in the back seat of Jason’s Lincoln Aviator. The car was parked in Jason’s driveway. While the car was running, with the keys in the ignition, Jason went inside his house to get his other son. While Jason was inside, defendant stole Jason’s car.
Upon discovering someone had stolen the Aviator with W.C. in the backseat, Jason’s wife, Stephanie, called 911 and reported the crime. At 8:50 a.m., a sheriff’s deputy found the Aviator parked at the side of a road, with the engine running. W.C. was inside the car unharmed, alone, crying. Both the Aviator and W.C. were returned that day to Jason and Stephanie.
December 27 Car Theft
On December 27, the Aviator was parked in Jason’s garage and his Envoy was parked in the driveway. At around 8:30 a.m., Stephanie discovered the Envoy had been stolen and reported the theft. A couple hours later, Sheriff’s Deputy Matheny saw someone driving the Envoy and followed it. When Matheny attempted to pull it over, the driver, defendant, attempted to evade Matheny by accelerating to unsafe speeds.
About the time Matheny’s supervisor told Matheny to stop chasing defendant, Deputy Padilla saw the Envoy speeding and pursued it. After a few seconds, the Envoy crashed into a chain link fence behind a trailer park. Defendant and Danny Lopez got out of the Envoy and ran in opposite directions.
Matheny drove to the location and apprehended Lopez. When Matheny took Lopez into custody, Lopez said, “I had nothing to do with it he just gave me a ride.” The owner of a nearby mobile home told Matheny he had just heard something hit his trailer. He saw someone run by and then found a loaded gun on his back door steps.
Meanwhile, Padilla chased after defendant on foot and lost sight of him. Detective Harris saw defendant fleeing but also lost sight of him. After a door-to-door search of the area with a K-9, the K-9 alerted officers to defendant, who was hiding in a shed.
After being advised of his Miranda rights, defendant admitted he took the Aviator and that he had given the car keys to one of his “homies,” another member of his gang. He also admitted he had driven the Envoy, had handled the handgun while inside the Envoy, and had given someone in the Envoy bullets for the gun.
During the trial, Padilla testified as a gang expert. He identified defendant as a gang member. He further testified that defendant’s car theft offenses and possession of the gun were gang-related offenses.
2. Discussion
Defendant contends his conviction on counts 5 and 11 must be reversed because they are necessarily included offenses of count 4. The People concede defendant is correct as to count 5 but not as to count 11.
We agree that defendant’s conviction on count 5 must be reversed because it is a lesser included offense of count 4. Count 4 is for carrying a concealed firearm on December 23, 2005, while defendant was an active participant in a criminal street gang (§ 12025, subd. (b)). Count 5 is for street terrorism, that is for being an active participant in a criminal street gang (§ 186.22, subd. (a)).
Multiple convictions may not be based on necessarily included offenses. (People v. Ortega (1998) 19 Cal.4th 686, 692.) “‘“The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.” [Citations.]’ [Citation.]” (Ortega, supra, at p. 692.)
Defendant was convicted of committing street terrorism on December 27, 2005, in violation of section 186.22, subdivision (a) as charged in count 5 of the information and of carrying a loaded firearm on December 27, while he was an active participant in a criminal street gang, in violation of section 12025, subdivision (a), as charged in count 4. He could not have committed count 4 without necessarily committing count 5 at the same time. He cannot be convicted of both crimes. (People v. Flores (2005) 129 Cal.App.4th 174, 184.) Accordingly, we reverse his conviction on count 5.
Such is not the case as to count 11. Since the count 11 for street terrorism (§ 186.22, subd. (a)) was committed on December 23, and thus not committed at the same time as count 4, count 11 is not a lesser included offense of count 4. Defendant nevertheless argues count 11 is a lesser included offense of count 4 because street terrorism is a continuing offense. We disagree.
We are unaware of any case holding that street terrorism, as defined in section 186.22, subdivision (a), is a continuing offense. We must therefore determine preliminarily whether that offense punishes a continuing course of conduct. (People v. Sanchez (2001) 94 Cal.App.4th 622, 632 (Sanchez).) Determination of whether street terrorism is a continuing offense is primarily a question of statutory interpretation: “‘The answer, however, does not depend solely on the express language of the statute. Equally important is whether “the nature of the crime involved is such that [the Legislature] must assuredly have intended that it be treated as a continuing one.” [Citations.]’ [Citation.]” (People v. Terry (2005) 127 Cal.App.4th 750, 763.)
In determining whether an offense is a continuing offense, “[t]he courts have looked to the statutory language to determine whether the Legislature intended to punish individual acts or entire wrongful courses of conduct and have concluded that when the language of the statute focuses on the goal or effect of the offense, the offense is a continuing offense. (People v. Salvato (1991) 234 Cal.App.3d 872, 882-883 [dissuading a witness]; People v. Avina, supra, 14 Cal.App.4th at p. 1311 [residential child molestation].) Other courts have found a continuing course of conduct where the wrongful acts were successive, compounding, interrelated, and aimed at a single objective. (People v. Dieguez, supra, 89 Cal.App.4th at p. 275.)” (Sanchez, supra, 94 Cal.App.4th at p. 632; see also Wright v. Superior Court (1997) 15 Cal.4th 521, 526 (Wright).)
Our high court has stressed that “the doctrine of continuing offenses should be applied in only limited circumstances . . . .” (Wright, supra, 15 Cal.4th at p. 528.)
Section 186.22, subdivision (a), provides that street terrorism occurs when: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, . . . willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.” (§ 186.22, subd. (a).)
Section 186.22, subdivision (a) “is part of the Street Terrorism Enforcement and Prevention Act which was enacted by emergency legislation in 1988. [Citations.] The Legislature passed these criminal penalties and strong economic sanctions as a response to the increasing violence of street gang members throughout the state. Previously, there was no existing law that made the punishment for crimes by a gang member separate and distinct from that of the underlying crimes. (In re Alberto R. (1991) 235 Cal.App.3d 1309, 1318 [1 Cal.Rptr.2d 348].) [¶] Section 186.22, subdivision (a) punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. [Fn. omitted.] It is a substantive offense whose gravamen is the participation in the gang itself.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467.)
While participation in a gang may be considered the gravamen of a street terrorism offense, the defendant must also promote, further, or assist in criminal felonious conduct. The elements of a section 186.22, subdivision (a) offense are “criminal knowledge, willful promotion of a felony, and active participation in a criminal street gang.” (People v. Castenada (2000) 23 Cal.4th 743, 752 (Castenada).) The purpose of section 186.22, subdivision (a) is to eradicate criminal activity of street gangs (§ 186.21) by punishing a defendant gang member more severely whenever he or she “promotes, furthers, or assists” in felonious criminal conduct by gang members (§ 186.22, subd. (a)).
The language and objective of section 186.22, subdivision (a) indicate that a street terrorism offense is not a continuing offense but, rather, is committed each time an active gang member “promotes, furthers, or assists” gang members in committing criminal felonious conduct. (§ 186.22, subd. (a).) Thus, when the underlying felony conduct has been completed, the street terrorism offense is also complete.
In considering whether a section 290, subdivision (f) offense is a continuing offense, the California Supreme Court in Wright, supra, 15 Cal.4th at page 525, stated that “Most crimes are instantaneous since they are committed as soon as every element is satisfied. Some crimes, however, are not terminated by a single act or circumstance but are committed as long as the proscribed conduct continues. Each day brings ‘a renewal of the original crime or the repeated commission of new offenses.’ [Citation.]”
In Wright, the court concluded the section 290, subdivision (f) offense, in which the defendant sex offender failed to notify law enforcement of his change of address, was a continuing offense because there was a continuing duty to perform a mandatory act: “The concept of a continuing offense is well established. [Fn. omitted.] For present purposes, it may be formulated in the following terms: ‘Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty.’ [Citations.] Thus, when the law imposes an affirmative obligation to act, the violation is complete at the first instance the elements are met. It is nevertheless not completed as long as the obligation remains unfulfilled. ‘The crime achieves no finality until such time.’ [Citations]” (Wright, supra, 15 Cal.4th at pp. 525-526.)
Here, the street terrorism offense does not involve a continuing duty to perform a mandatory act. The December 23 street terrorism offense (count 11) was complete when defendant willfully promoted, furthered, or assisted in committing the felonious criminal conduct related to stealing the Aviator. (§ 186.22.) The street terrorism offense on December 23 did not continue on and encompass defendant’s felonious criminal conduct on December 27, which included possession of a concealed gun (count 4). The street terrorism offense on December 23 was complete upon committing the December 23 felonious criminal conduct, and thus was not a lesser included offense of count 4.
Defendant’s reliance on Castenada, supra, 23 Cal.4th 743, is misplaced. In Castenada, our high court discussed the meaning of the street terrorism element stated in section 186.22, subdivision (a): “actively participates in any criminal street gang.” (Castenada, supra, at p. 745.) There is no dispute in instant case that defendant actively participated in a gang at the time of the charged offenses. Castenada does not address the key issue in this case of whether a section 186.22, subdivision (a) offense is a continuing offense.
Defendant’s reliance on People v. Salvato (1991) 234 Cal.App.3d 872 (Salvato) is misplaced as well. In Salvato, the court concluded that the offense of dissuading a witness by threat of violence (§ 136.1, subd. (c)(1)) was a continuing offense. (Salvato, supra, at p. 882.) At the time of the charged offense, the defendant and his wife were dissolving their marriage. Defendant made numerous threats against his wife in an effort to dissuade her from seeking her share of the community property. (Salvato, supra, at p. 876.) The court also concluded that defendant’s terrorist threats offense (§ 422) was not a continuing offense because the offense focused on individual threats rather than a continuous course of conduct.
The Salvato court explained that the offense of dissuading a witness focused on the unlawful goal or effect of preventing testimony, rather than any particular action taken to produce that end. The intent of the statute, section 136.1, subdivision (c)(1), was thus not to punish the defendant for each act but for the cumulative effect of acts intended to have the effect of dissuading a witness from testifying. (Salvato, supra, 234 Cal.App.3d at p. 883.) The Salvato court noted that a section 422 offense (terrorist threats), on the other hand, was not a continuing offense because it focused on an individual act, a particular threat, which instilled fear in the victim at the time of the specific threat. (Salvato, supra, at p. 883.)
Street terrorism is more analogous to a terrorist threat offense. Street terrorism occurs when the defendant commits the acts of promoting, furthering, or assisting gang members in committing particular felonious criminal conduct. The offense does not involve an ongoing course of conduct.
Because street terrorism is not a continuing offense, count 11 (street terrorism on December 23) it is not a lesser included offense of count 4 (possession of a gun on December 27), which was committed on a different day and was unrelated to the felonious criminal conduct which formed the basis of count 11.
3. Disposition
Defendant’s conviction on count 5, for violation of section 186.22, subdivision (a), is reversed as a lesser included offense of count 4. In all other respects, the judgment is
affirmed. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
We concur: Ramirez, P. J. Hollenhorst, J.