Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08NF1399, W. Michael Hayes, Judge. Affirmed as modified.
Athena Shudde, 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, Assistant Attorney General, Barry Carlton and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury found defendant Dave Dae Hong Kim, 16 years old at the time of the crimes, guilty of premeditated attempted murder (Pen. Code, § 664, subd. (a); § 187, subd. (a)), aggravated assault, felony vandalism, and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found the victim suffered great bodily injury (§ 12022.7, subd. (a)), and defendant committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code.
Defendant contends trial counsel performed ineffectively (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland)) by eliciting, and failing to object to, evidence and argument concerning defendant’s prior criminal record for possessing a knife. He also argues the trial court erred in imposing a concurrent, rather than a stayed (§ 654), term for active gang participation. The Attorney General concedes the trial court erroneously imposed a 10-year gang enhancement for attempted premeditated murder. For the reasons expressed below, we remand to correct the sentencing error, but otherwise affirm the judgment.
I
Factual and Procedural Background
On March 29, 2008, between 9:00 and 9:30 p.m., the victim Jack Stotts, his brother Scott, and friends Ricardo Reynoso, German Martinez, and Amy Espinoza, drove to Emery Park in Fullerton. Two or three young Asian men approached the group and asked who they were or where they were from. When Jack either made no reply or responded “nowhere, ” one of the men began to strike him. The other men ran away, but returned a short time later with 10-20 reinforcements.
Espinoza ran back to her car with Reynoso. One of the attackers slashed her tires with a knife and broke the headlights with a bat. Martinez saw someone chasing Espinoza and Reynoso with a bat and ran to help, but as he reached his friends one of the assailants threatened him with a knife. As he turned away, the person hit him on the shoulder with a bat.
During the melee, an assailant or assailants stabbed Jack multiple times and hit him with a bat. Although the group assaulted Scott and Martinez with several blows from fists and bats, they managed to help Jack stand up. Police arrived around 9:30 p.m.
Jack described his attackers as young Asian males, in their late teens to early 20’s. He heard them yell, “‘give me the knife, ’” and “‘DIA’” or “‘Dias’” several times. Scott identified defendant as one of Jack’s attackers, but he did not see him stab Jack or anyone else. Espinoza also identified defendant as one of the attackers, and Martinez identified defendant as the person who slashed Espinoza’s tires and hit him with a baseball bat.
A few days after the attack, defendant admitted to Joshua Cho, a high school acquaintance, he “‘shanked this fool.’” A gang expert testified that in the gang subculture, a gang member who commits a violent act usually boasts about it, but a gang member who bragged about a crime he did not commit could face reprisals from other gang members. The expert further testified the incident alone established defendant’s active participation in the Diablos gang, and defendant’s previous admission he was an associate of Diablos further supported the expert’s opinion.
Police investigators collected knives and other possible weapons from Emery Park and submitted the items for DNA analysis, but none matched defendant’s profile. During a search of defendant’s residence, investigators found an aluminum bat outside the home and a knife in defendant’s bedroom dresser. Investigators discovered photographs of Diablos gang members making gang signs, and also pictures of Diablos graffiti.
Defendant presented an alibi defense. His sister testified she called her brother around 9:00 p.m. and he told her he was having a good time with his girlfriend in Cerritos. She picked him up between 9:20 and 9:30 p.m., and took him home. She had been to Emery Park at night, which she described as poorly lit.
Following a trial in March 2009, a jury convicted defendant as noted above. In May 2009, the trial court imposed an indeterminate life term for attempted premeditated murder, with a 15-year minimum sentence before defendant would be eligible for parole. The court also imposed a consecutive 10-year term for the gang enhancement, a consecutive three-year term for the great bodily injury enhancement, and a concurrent two-year term for active gang participation. The court imposed concurrent or stayed sentences for defendant’s other convictions.
II
Discussion
A. Defendant Did Not Suffer Prejudice Due to Trial Counsel’s Ineffectiveness
Defendant contends his lawyer’s “elicitation of evidence of his prior record and his failure to object or seek to limit cross-examination in the area and/or object to the references to [his] record in the prosecutor’s rebuttal closing [argument] constituted constitutionally ineffective assistance of counsel....”
During the prosecution’s case, lead investigator and gang detective Vincent Mater disclosed that defendant’s probation officer found a baseball bat hidden on defendant’s patio. Defendant’s sister later testified on direct examination that defendant had to be home by 10:00 p.m., in part because he was on probation. During the sister’s cross-examination, the prosecutor pressed her to explain why defendant was on probation. She reluctantly admitted it was because he had possessed some “firecracking toys” and “a small pocketknife.” During his rebuttal argument, the prosecutor highlighted defendant’s sister’s unwillingness to talk about defendant’s probation.
To establish a claim of ineffective assistance of counsel, a defendant must show his attorney’s representation fell below an objective standard of reasonableness and that he suffered prejudice as a result. (Strickland, supra, 466 U.S. at pp. 687-688.) On appeal, we presume counsel acted competently unless the record affirmatively excludes a rational basis for the attorney’s tactical choices. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.) Judicial scrutiny is highly deferential, and we must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances under which counsel acted, and to evaluate the conduct from counsel’s perspective at the time. (Strickland, at pp. 689-690.) Prejudice is shown if there is a reasonable probability of a more favorable result, defined as a probability sufficient to undermine confidence in the outcome. (In re Clark (1993) 5 Cal.4th 750, 766.)
We perceive no satisfactory explanation for trial counsel’s failure to object to the prosecutor’s cross-examination of defendant’s sister, which elicited evidence of defendant’s prior criminal act of possessing a pocket knife. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) But we discern no prejudice. Defendant does not dispute the jury properly learned about the pocket knife the investigators found in defendant’s dresser, hidden beneath his clothing. The discovery diluted the prejudicial impact of defendant’s prior act of possessing a pocket knife, since the evidence showed not merely a tendency towards having a knife, but actual possession. Also, the victim and other witnesses identified defendant as one of the attackers. Scott Stotts remembered looking at defendant, and testified he was 99 to 100 percent certain defendant was one of the attackers. Jack and the other witnesses identified defendant from photographs. A few days after the attack, defendant bragged to Joshua Cho he had “‘shanked’” someone. The attackers shouted “‘Dias’” or Diablos during the attack. Cho, who was not in a gang, knew defendant belonged to the Diablos gang. Defendant had previously admitted to a school resource officer he was a Diablo, a small gang with only 15 or 20 members. Computers at defendant’s home contained photographs of other Diablos gang members making gang signs, and Diablos graffiti. Assuming counsel was ineffective for failing to object, we do not find it reasonably probable defendant would have obtained a more favorable result had counsel objected to the prosecutor’s question.
B. The Trial Court Erred by Imposing a Consecutive 10-Year Gang Enhancement for Attempted Premeditated Murder
The Attorney General concedes the court erred in imposing a consecutive 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)) for attempted premeditated murder in addition to the 15-year minimum parole eligibility penalty contained in section 186.22, subdivision (b)(5). We agree the court erred and accept the concession. (People v. Lopez (2005) 34 Cal.4th 1002, 1007.)
C. Imposition of a Concurrent Term for Active Gang Participation Violated Section 654
Defendant also contends the trial court erred by failing to stay the concurrent term for active gang participation (count 4) pursuant to section 654. We agree.
Section 654 provides, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) “‘A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.’ [Citation.]” (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.)
“‘“Section 654 has been applied not only where there was but one ‘act’ in the ordinary sense... but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.” [Citation.] [¶] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor....’” (People v. Rodriguez (2009) 47 Cal.4th 501, 507, original italics.) “[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored ‘multiple criminal objectives, ’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
The focus is not on the statutory elements of the crimes; rather, it is on the particular defendant’s actual intent and objective. In People v. Latimer (1993) 5 Cal.4th 1203, 1211, the defendant was convicted of both kidnapping and rape. The Supreme Court stated: “It could be argued that defendant had two intents: (1) to drive the victim against her will to an isolated area, and (2) to rape her. Cases applying [Neal v. State of California (1960) 55 Cal.2d 11] however, make clear that multiple punishment for both the rapes and the kidnapping is prohibited under the circumstances of this case. Although the kidnapping and the rapes were separate acts, the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes.” (Id. at p. 1216.)
Section 186.22, subdivision (a), provides, “(a) 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, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.” The crime thus requires as one of its elements the intentional commission of an underlying offense.
Here, the jury expressly found defendant committed the underlying crimes for the benefit of, at the direction of, or in association with a criminal street gang. There is no evidence to show defendant harbored a different intent and objective in committing the crime of active gang participation and his commission of the underlying crimes. His intent and objective was to intimidate the victim, the victim’s friends, and possibly others in the community, and to garner respect for the Diablos gang. Although defendant’s intent and objective can be parsed into an intent to promote the gang and intent to kill, those intents were not independent: Each intent was dependent on, and incident to, the other. (People v. Vu (2006) 143 Cal.App.4th 1009, 1034.) Section 654 precluded separate punishment. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135 [the trial court may impose sentence for only the offense carrying the highest punishment].)
III
Disposition
The judgment is modified (§ 1260) to strike the 10-year gang enhancement for attempted premeditated murder (count 1), and to stay sentence for active gang participation (count 4) under section 654. The trial court is directed to prepare a corrected abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J.IKOLA, J.