Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. FSB052284. J. Michael Welch, Judge.
Joanna McKim, 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 Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER, J.
INTRODUCTION
A jury found defendant guilty of two counts of robbery. (Pen. Code, § 211.) As to both counts, a jury found true allegations that defendant played a principal role in the commission of the robberies and that his accomplice personally used a firearm. (Pen. Code, § 12022.53, subds. (b) & (e)(1).) A jury also found defendant guilty of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)); being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)); and disregarding the safety of others while driving a vehicle in an attempt to elude a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)). As to all of defendant’s crimes, the jury found true the allegations that the offenses were committed to benefit a criminal street gang. (Pen. Code, § 186.22, subd. (b)(1)(A) & (C).) The trial court found true the allegations that defendant suffered three prior strike convictions (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)); three prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)); and three prior convictions that resulted in prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to an indeterminate state prison term of 85 years to life.
Defendant makes four contentions. First, defendant asserts that there is a lack of substantial evidence to support the finding that he committed the robberies to benefit a criminal street gang. Second, defendant argues that the firearm enhancements should be stricken. Third, defendant contends that the trial court erred by applying five prior prison term enhancements to his sentence, rather than three. The People concede defendant is correct as to this third argument. Fourth, defendant asserts that the trial court erred by denying his motion to strike his prior strike convictions.
The People make two contentions. First, defendant was improperly sentenced for the gang enhancements. Second, defendant was improperly sentenced for the serious felony enhancements. We affirm in part and reverse in part, with directions.
FACTS
On September 27, 2005, defendant was driving down a street in San Bernardino when a minor gestured to him to stop. The minor had seen defendant before, but they had not spent time together. When the minor entered the vehicle, he “told [defendant] to drive.” The minor testified that he had told defendant he would give him part of the proceeds from the robberies he was planning to commit, if defendant drove him.
Around 5:00 p.m., a clerk was working at Video 2000 in San Bernardino when the minor entered the store with a handkerchief over his face. The minor held a gun and instructed the clerk to open the register. The minor then pushed the clerk to the floor and put his foot on her back, while he opened the cash register. The minor took approximately $200, and while he was leaving the store, hit the clerk on her head with the handle of the gun. The minor then exited the store and entered the waiting vehicle driven by defendant.
On September 27, 2005, around 5:30 p.m., a clerk was working at Mega Video in San Bernardino when the minor entered the store with a handkerchief over his face. The minor pointed a gun at the clerk’s head and instructed her to give him money. The minor then hit the side of the clerk’s face with the handle of the gun and took approximately $700. Minor exited the store and entered a waiting vehicle driven by defendant.
As the minor and defendant drove away from the store, San Bernardino Police Officers Corral and Andrade pursued their vehicle. Defendant led the officers through an area of San Bernardino known as “the projects.” The officers used their vehicle’s emergency lights and sirens while pursuing defendant and the minor, but defendant continued driving for “a few minutes.” Defendant exceeded the speed limit and drove through several stop signs without stopping. Defendant turned into a cul-de-sac, at which point defendant and the minor exited the vehicle before it stopped. Defendant and the minor ran from the officers, but the officers were able to catch defendant and arrest him.
At the jail, Officer Andrade searched defendant and discovered a plastic bag in his sock that contained rock cocaine. The car defendant drove during the robberies was referred to as a “smoker.” A “smoker” refers to a car that has been loaned to a narcotics dealer in exchange for drugs.
The minor admitted that he was once a member of the Projects street gang, that he continued to associate with members of the Projects street gang, and that he committed the crimes at issue in this case to benefit a street gang. Defendant admitted to Officer Corral that he is a member of the Projects street gang. Officer Walker testified that older gang members will often employ minors in committing crimes in order to initiate the minor into the gang or because minors are not prosecuted as aggressively as adults.
DISCUSSION
A. Contentions Related to Matters at Trial—Gang Enhancement
Defendant contends that there is a lack of substantial evidence to support the jury’s finding that he committed the robberies to benefit a criminal street gang. Specifically, defendant contends (1) there was no substantial evidence to prove the crimes would benefit the gang; and (2) there is a lack of substantial evidence to prove that robbery is a primary activity of the gang. We disagree with both arguments.
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one.” (People v. Smith (2005) 37 Cal.4th 733, 738.) “We review the entire record in the light most favorable to the judgment and affirm the [true finding] as long as a rational trier of fact could have found [the allegations to be true] based on the evidence and inferences reasonably drawn therefrom. [Citation.]” (People v. Millwee (1998) 18 Cal.4th 96, 132.) In deciding whether substantial evidence supports the jury’s verdict, we do not resolve issues of credibility or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) “Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt.” (People v. Millwee, supra, 18 Cal.4th at p. 132.)
1. Benefit to the Gang
We begin by addressing defendant’s first argument. To obtain a true finding on an allegation of a criminal street gang enhancement, the People must prove the crimes at issue were “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 . . . .” (Pen. Code, § 186.22, subd. (b)(1).)
Officer Corral testified that defendant admitted to him that he is a member of the Projects street gang. Defendant’s body is covered in multiple Projects gang tattoos. While in jail, defendant spoke to his brother in a recorded telephone conversation and made multiple references to the Projects gang. A few examples of these references are: (1) “Projects or nothing,” which refers to defendant’s allegiance to the Projects street gang; (2) “I’m willing to die for these bricks homie,” indicating defendant’s loyalty to the Projects gang, referring to the “brick villains” or to the Projects housing development, which is made of cinderblocks; and (3) “[o]n Projects, I’m going to . . . beat this shit and be right back in the bricks, dog,” which is “sort of like saying on my mother’s life” and shows allegiance to the Projects gang.
Moreover, the minor pled guilty to committing the robberies to benefit a criminal street gang. The minor also testified that he was a member of the Projects street gang on August 17, 2005, when he was served with a gang injunction, which was approximately five weeks prior to the commission of the crimes at issue in this case.
The district attorney asked the minor, “You were in the Projects at the time?” Minor responded, “Yes.” From the context of the questioning, we infer that the district attorney’s question referred to minor being a member of the Projects gang at the time he was served with the gang injunction, rather than minor being physically located in the area known as “the projects” when he was served.
Officer Walker testified that the robberies would benefit the gang because violent acts make the gang “more notorious.” Moreover, Officer Walker testified that the monetary gain from the robbery could purchase “status items,” such as “clothing, shoes . . . [and] weapons,” which would benefit the gang. In addition, monetary proceeds from narcotics sales are often shared by gang members. Furthermore, defendant’s actions of attempting to evade the police benefit the gang by giving the gang members “bragging rights.” The possession of the weapon during the robberies also benefited the gang by intimidating future victims, who are aware the gang members use weapons.
The jury could reasonably infer from this evidence that defendant was a member of the Projects gang and that his coparticipant was also a member of the gang. In addition, the jury could reasonably infer that defendant committed the offenses to benefit the Projects street gang. Accordingly, we conclude that substantial evidence supports the jury’s finding that the crimes were committed to benefit a criminal street gang.
Defendant argues that the minor robbed the video stores because he needed the money and that it was not done for the benefit of the gang. Minor did state that he needed the money; however, he also pled guilty to committing the robberies to benefit a criminal street gang. Accordingly, we find defendant’s argument has no merit.
2.Primary Activity
We now address defendant’s second argument, regarding the primary activity of the street gang. “Under [Penal Code] section 186.22, subdivision (f), the prosecution must establish that the gang has ‘as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, of subdivision (e) . . . .’” (People v. Perez (2004) 118 Cal.App.4th 151, 159.) Robbery is one of the enumerated acts listed in Penal Code section 186.22, subdivision (e). (Pen. Code, § 186.22, subd. (e)(2).)
Officer Walker testified that Projects street gang members are “[m]ost commonly . . . involved in . . . violent crimes, drive-by shootings, carjackings, robberies, murders.” Moreover, defendant and the People stipulated to the predicate offenses of two Projects gang members, one of which was convicted of carjacking in 2004, and the other for assault with a firearm and possession and use of a deadly weapon in 2002. The convictions of the two Projects gang members support the testimony of Officer Walker that one of the primary activities of the Projects street gang is robbery. Accordingly, we conclude that substantial evidence supports the finding that robbery is a primary activity of the gang.
B. Contentions Related to Sentencing Matters
1. Facts Concerning Defendant’s Sentence
With respect to defendant’s two convictions for robbery (Pen. Code, § 211), the trial court imposed the same sentence for both counts, which consisted of the following parts: The court sentenced defendant to a prison term of 25 years to life, due to defendant’s prior strike convictions (Pen. Code, §§ 1170.12, subd. (c)(2), 667, subd. (e)(2)), for a subtotal term of 50 years to life. Additionally, the court imposed a 10-year prison term for the enhancement of personally using a firearm (Pen. Code, § 12022.53, subds. (b) & (e)(1)), for a subtotal term of 70 years to life. The court also sentenced defendant to a five-year term for one prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)), for a subtotal term of 80 years to life. The court further imposed a requirement that defendant serve a minimum 15-year prison term before becoming eligible for parole due to the gang enhancements. (Pen. Code, § 186.22, subd. (b)(1)(A) & (C).) Consequently, with the enhancements and prior strikes, defendant was sentenced to a total of 80 years to life for the two robbery counts.
The trial court went on to impose five 1-year terms for the prior convictions that resulted in prison terms (Pen. Code, § 667.5, subd. (b)), for a total indeterminate prison term of 85 years to life. Pursuant to Penal Code section 654, the trial court stayed the sentences for defendant’s convictions related to eluding a police officer (Veh. Code, § 2800.2, subd. (a)), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)).
2. Defendant’s Contentions
a. Firearm Enhancements
Defendant contends that the firearm enhancements must be stricken because his liability for the use of a firearm is contingent on the true finding of the gang enhancements, which defendant argues are not supported by substantial evidence. We have concluded that the findings related to the gang enhancements are supported by substantial evidence and, therefore, conclude that defendant’s argument has no merit.
b. Prison Prior Enhancements
Defendant contends that the trial court erred by sentencing him for five prison priors when only three prison priors were found true. (Pen. Code, § 667.5, subd. (b).) The People support defendant’s argument. We agree.
The prosecution originally alleged that defendant suffered five prior convictions that resulted in prison terms; however, the prosecution elected to proceed with only three of the allegations. The court found the three allegations of prison priors to be true. At sentencing, the court sentenced defendant for five prison priors, which we conclude was an error.
c. Prior Strikes
Defendant contends that the trial court erred when it denied his motion to strike his prior strike convictions. We disagree.
We review a decision regarding striking a prior conviction under the three strikes law for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375; People v. Gillispie (1997) 60 Cal.App.4th 429, 435.) When a lower court rules on whether to strike a prior strike conviction, and when we review a ruling on the matter, the following issue must be considered: Whether a defendant should be deemed to be outside the spirit of the three strikes sentencing scheme, in whole or in part, given (1) the nature and circumstances of his present and prior convictions; (2) his background; (3) his character; and (4) his prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.)
First, as to defendant’s current and prior convictions, the trial court gave a detailed analysis of the facts of the current case. The trial court also discussed defendant’s prior convictions, referring to “a list of offenses that go back to 1997.”
Second, while discussing defendant’s personal background, the trial court noted defendant’s criminal history and remarked that it read a letter from defendant’s family.
Third, in regard to defendant’s character, the court concluded that several of defendant’s crimes have been violent in nature.
Fourth, in regard to defendant’s prospects, the trial court stated that the facts of the instant case suggested that defendant was training the minor on how to commit armed robbery and that he was acting as a criminal mentor to young members of the street gang, which indicates that the court did not think defendant had good prospects for avoiding future crimes if it decided to strike defendant’s prior strike convictions.
We conclude that the trial court considered the four required factors in making its decision not to strike defendant’s prior strike convictions. Accordingly, we find no error.
3. The People’s Contentions
a. Gang Enhancement
The People make two arguments related to defendant’s sentence for the gang enhancements. First, the People contend that the trial court was required to impose 10-year sentences for the gang enhancements, rather than 15-year minimum parole eligibility requirements. Second, the People argue that the trial court should have stayed the sentences for the gang enhancements because defendant was sentenced for the firearm enhancements. We agree with both contentions.
i. Ten-year Prison Term
We begin by addressing the People’s first argument. Penal Code section 186.22, subdivision (b)(1)(C), mandates that any person who is convicted of committing a felony for the benefit of a criminal street gang be sentenced to an additional and consecutive 10-year prison term, “‘[e]xcept as provided in paragraphs [(b)](4) and [(b)](5) . . . .’ (Italics added.) In other words, the gang enhancement under [Penal Code] section 186.22, subdivision (b)(1), may not be imposed when subdivision (b)(4) or (b)(5) applies instead. [Citations.]” (People v. Johnson (2003) 109 Cal.App.4th 1230, 1236-1237.)
Penal Code section 186.22, subdivision (b)(5), provides that if a person is convicted of a felony, which is punishable by life in the state prison, then that person “‘shall not be paroled until a minimum of 15 calendar years have been served.’ This provision establishes a 15-year minimum parole eligibility period, rather than a sentence enhancement for a particular term of years.” (People v. Johnson, supra, 109 Cal.App.4th at p. 1237.) However, Penal Code section 186.22, subdivision (b)(5), is only applicable “where the felony by its own terms provides for a life sentence.” (People v. Montes (2003) 31 Cal.4th 350, 352.)
Defendant was sentenced to an indeterminate prison term of 85 years to life; however, that was due to defendant’s prior strike convictions. The felonies for which defendant was convicted do not by themselves provide for life sentences. (Pen. Code, §§ 211, 12021, subd. (a)(1); Veh. Code, § 2800.2, subd. (a); Health & Saf. Code, § 11350, subd. (a).) Accordingly, we conclude that the trial court erred because it should have imposed 10-year sentences for defendant’s gang enhancements.
ii. Stayed Sentence
We now address the People’s second argument regarding staying the imposition of the sentence for the gang enhancements. Penal Code section 12022.53, subdivision (e)(2), addresses defendant’s firearm enhancement and provides that a gang enhancement “shall not be imposed on a person in addition to” a firearm enhancement, “unless the person personally used or personally discharged a firearm in the commission of the offense.” California Rules of Court, rule 4.447, mandates that any sentence related to enhancements, which exceeds the statutory limitations, be imposed and stayed, rather than striking or dismissing the enhancements.
The firearm enhancements were found true in defendant’s case because the minor used the firearm and the crimes were committed to benefit a criminal street gang. (Pen. Code, § 12022.53, subds. (b) & (e)(1).) Defendant did not personally use or discharge the firearm; therefore, the trial court should have imposed and stayed the 10-year prison terms for the gang enhancements, after imposing the sentence for the firearm enhancements.
b. Prior Serious Felony Enhancements
The People contend the trial court erred by finding that defendant suffered from three prior serious felonies because the three felonies were all part of the same case. (Pen. Code, § 667, subd. (a)(1).) We agree with the People’s argument.
We disagree with defendant’s argument that we should reject the People’s contention because they raised it in a footnote, rather than under a heading as required by California Rules of Court, rule 8.204(a)(1)(B). We elect to address the merits of the People’s argument, rather than reject it on procedural grounds because the People have made a full argument with citations to the record and legal authority.
Penal Code section 667, subdivision (a)(1), provides that “any person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” “‘[T]he requirement in [Penal Code] section 667 that the predicate charges must have been “brought and tried separately” demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt.’” (People v. Wiley (1995) 9 Cal.4th 580, 585.) Our Supreme Court has concluded that when a defendant is sentenced pursuant to the three strikes law, “[Penal Code] section 667[, subdivision] (a) enhancements are to be applied individually to each count of a third strike sentence.” (People v. Williams, supra, 34 Cal.4th at p. 405.)
In defendant’s case, the three convictions that were alleged to be serious prior felonies were all alleged to have the same case number and conviction date. Accordingly, we conclude that the three prior serious felonies were all part of the same case. (See People v. Wiley, supra, 9 Cal.4th at p. 583.) Consequently, we conclude the trial court erred by finding three separate and distinct prior serious felony convictions because the felonies were not brought and tried separately and, therefore, only one of the prior serious felony allegations may remain. Defendant’s sentence is unaffected by our conclusion because the trial court only applied one prior serious felony enhancement to each robbery count, rather than three enhancements to each count.
DISPOSITION
The judgment is affirmed in part and reversed in part, with directions.
First, we reverse the 15-year minimum parole eligibility requirement imposed due to the gang enhancements (Pen. Code, § 186.22, subd. (b)(1)(C)) in counts 1 and 3. We direct the trial court to impose and stay the 10-year sentences for defendant’s gang enhancements in those counts.
Second, we reverse the trial court’s findings related to defendant’s two prior serious felonies (Pen. Code, § 667, subd. (a)(1)) for dissuading a witness (Pen. Code, § 136.1, subd. (b)).
Third, we reverse defendant’s sentence for all five 1-year prior prison terms. The trial court is directed to resentence defendant for three prior prison term convictions. (Pen. Code, § 667.5, subd. (b).)
In all other respects, we affirm the judgment.
We concur: RAMIREZ, P. J., KING, J.