Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F01569
BUTZ, JA jury convicted defendant Thae Lee of discharging a firearm at an occupied vehicle (Pen. Code, § 246), with special findings that he personally used a firearm (§ 12022.53, subd. (c)) and committed the crime to promote a criminal street gang (§ 186.22, subd. (b)(1)). The court sentenced him to an indeterminate term of 25 years to life plus a consecutive 20-year term for the firearm enhancement.
Undesignated statutory references are to the Penal Code.
The 25-year-to-life term was calculated by imposing a five-year midterm for violation of section 246 plus 20 years for the section 12022.53, subdivision (c) (hereafter section 12022.53(c)) enhancement, with the indeterminate term added by the gang enhancement.
Defendant appeals, claiming that the admission of his statements to police violated his Miranda rights, that the prosecutor urged an impermissible factual theory to support the gang enhancement, and that the enhancement was not supported by substantial evidence. He also assigns numerous sentencing errors.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
We shall strike a duplicative term for the firearm enhancement, but affirm the judgment in all other respects.
FACTUAL BACKGROUND
The shooting
On January 13, 2007 (all further unspecified calendar dates are to that year), 15-year-old Kelly V. arranged to meet her friend J.L., who was 14, in front of a Fairfield Street apartment complex in North Sacramento. Kelly’s 23-year-old nephew, See Vue, lived in the complex. Kelly and See were emotionally close and she often spent the night at his apartment.
For convenience and to avoid confusion, we will customarily refer to the witnesses by their first names.
Kelly set up the meeting by calling Jerry Vang, a member of the Hmong gang known as “Masters of Destruction,” which goes by the acronym MOD. When Vang received the call, he was at a park with J.L. and J.L.’s sister Sophia. Following the call, Jerry drove the two sisters and Bobby Yang to meet Kelly.
The group arrived at the apartment complex and waited for Kelly to enter the car. Instead of joining them, however, Kelly just stood about 10 to 20 feet away, texting or calling from her cell phone.
After about five minutes, a silver Honda-type car pulled up alongside and a hooded Asian male, who was sitting on the passenger side, fired several rounds into Jerry’s vehicle.
Bobby was hit in the finger and Jerry was grazed in the waist by stray bullets, but J.L. was hit in the thigh. Jerry drove them to the hospital where J.L. was treated for a gunshot wound.
Police investigation
On February 13, a month after the shooting, Kelly was interviewed at the police station. She described the assailants as two young Asian males in a gray Honda Accord, but initially denied knowing the identity of the shooter. After the police interviewer urged her several times to tell the truth, Kelly wrote defendant’s name down on a piece of paper. She also selected defendant’s picture from a photographic lineup. Kelly reluctantly admitted that she set up J.L. to be shot because she was jealous and angry over J.L.’s relationship with Jerry. Kelly instructed defendant to shoot at the car, not at the people, because she only wanted to “scare” J.L. Kelly gave a detailed description of crystal methamphetamine use and dealing at the Fairfield Street apartment where See Vue, Seng Vue and John Vang were staying. She stated that she offered defendant an “eight ball” of crystal methamphetamine to be provided by her nephew See, in return for doing the shooting.
Following Kelly’s interview, officers conducted a raid on the Fairfield Street apartment. The officers found a partial methamphetamine laboratory, and seized a large amount of methamphetamine and a cache of illegal firearms. As a result of the raid, Hmong Nation Society (HNS) gang members John Vang and Seng Vue were charged with possession of methamphetamine for sale and John Vang was also charged with possession of illegal firearms.
On February 15, Detective Joseph Bailey of the gang suppression unit of the Sacramento Police Department interviewed the victim J.L. Although she was very fearful, J.L. identified defendant as the shooter from a six-pack photographic lineup.
Trial testimony
Kelly
Kelly was called as a witness for the prosecution. At the time of trial, she was serving time in a treatment facility in Wyoming after pleading guilty to assault in connection with the shooting.
At the commencement of her testimony, Kelly readily admitted that she set up the shooting, but displayed a remarkable lack of memory about the statements she had made to the police implicating defendant as the shooter. After the video of her police interview was played for the jury, her memory improved. She admitted setting up J.L. to be shot by defendant because J.L. was saying bad things about her behind her back and always trying to embarrass her. She instructed defendant to shoot at the car, not at the people, because she just wanted to frighten J.L.
Kelly testified that See, Seng and John Vang were selling methamphetamine from their apartment and furnishing it to her. See and defendant were affiliated with the HNS gang and hung out together. She knew Jerry to be a member of the MOD gang. See and his HNS friends did not like Jerry because he was a MOD, and gave Kelly a hard time because she associated with him.
Kelly was fearful of retaliation against her family by HNS if she testified against defendant, and conceded that it would be better for her family if she did not identify defendant. She admitted telling her counselor and an investigator that she planned on lying at the trial.
J.L.
J.L. testified that she used to be a close friend of Kelly’s. J.L. and Jerry were also close friends. Although defendant is J.L.’s cousin, she does not know him well.
On the day of the shooting, J.L. was hanging out at Natomas Park with her sister Sophia, and Jerry and Bobby Yang. Kelly called Jerry and told him to pick her up, so the three of them got in Jerry’s car and drove to the Fairfield Street apartment complex.
When they arrived, Kelly was about 20 feet from their car, standing there, doing nothing. Finally, a silver car with two Asian males pulled up alongside and the passenger fired three or four shots into Jerry’s car. J.L. was shot in the leg.
When confronted with her pretrial identification of defendant as the shooter, J.L. tried to retract it. She claimed she was “confused” and selected defendant’s photo only because she thought the officer was asking her if she recognized anyone in the lineup.
After the shooting, J.L. ran into defendant at a funeral. He told her “I heard that you got shot, so how’s your leg doing?” Defendant then lifted up his shirtsleeve and displayed his “HNS” gang tattoo, which scared her and gave her a “weird feeling.” J.L. admitted telling the detective who interviewed her that she was fearful of testifying in the case. She acknowledged that defendant’s associates still reside in the neighborhood where she lives.
Gang evidence
Detective John Fan, who is assigned to the gang suppression unit of the Sacramento Police Department, testified that Jerry Vang was an associate of the MOD gang, a Hmong gang that predominates in the south area of Sacramento.
Detective Bailey, a specialist in Asian gangs, also testified. Bailey explained that HNS is a Hmong gang that claims the north side of town for its territory, whereas, MOD predominates on the south side. Asian street gangs are “ruthless,... violent criminals,” who thrive on intimidation. Citizens, as well as other gang members, know that “if you mess with an Asian gang member, they’re gonna have a gun.”
HNS gang members have been involved in drive-by shootings, as well as the manufacture, sale and use of methamphetamine. They have also been known for intimidating witnesses, crime victims and their families. Detective Bailey testified about the case of Ger Lor, an HNS gang member. Lor was convicted of the drive-by shooting of Johnny Her, a member of a rival gang. The shooting in July 2005 benefitted HNS by enhancing its reputation in the community and with rival gang members.
The trial court took judicial notice of court documents relating to Ger Lor’s conviction for attempted murder and shooting at an occupied motor vehicle, which included true findings on gang enhancements for each crime.
Detective Bailey testified defendant was a validated member of the HNS gang. Defendant admitted his gang membership and had gang graffiti throughout his room. The apartment complex where the shooting occurred was an HNS “gang hangout,” where methamphetamine was being manufactured, gang members were harboring arms, and drug traffic was flowing.
Answering a hypothetical based upon the evidence in this case, Detective Bailey testified that, in his opinion, such a shooting promoted or benefited the HNS gang. By shooting a rival gang member in front of their own hangout, HNS enhanced its reputation, engendered fear in the community and hesitancy in rival gangs about disrespecting them. Bailey discounted the possibility that the shooting could have been motivated by the promise of a single dose of crystal methamphetamine. He stated the risk was too great, “unless it is to benefit the gang.”
Detective Bailey interviewed J.L. and her family. They were all “very afraid” that if they cooperated with the police they would suffer retaliation by the HNS gang.
Defense
Defendant did not testify. Several of his family members testified that he was at a family barbeque on the day of the shooting, that he stayed all day long, and did not leave until the barbeque ended late that evening.
Defendant also presented two witnesses who intimated that See Vue, who was in poor health and had died by the time of trial, might have been responsible for the shooting because the victim, Jerry, was Kelly’s boyfriend and she complained to See that Jerry had beaten her up.
DISCUSSION
I. Miranda Violation
A. Defendant’s Interrogation
Defendant was interviewed twice after his arrest on February 14, 2007. Detective Fan conducted the first interview, during which defendant was advised of, and waived his Miranda rights. Defendant said that he had heard about the shooting but steadfastly denied any involvement, stating, “I swear to God, man, I do not know shit, man” and “I did not do shit, man.” When Fan told defendant he was “going to get locked up no matter what,” on charges of attempted homicide but that there might be a possibility of leniency if the perpetrator showed remorse, defendant replied, “Damn. I damn, man. I’m not going to talk no more, man. I I swear I did not do shit, man.” The interview ended with this colloquy:
“[DETECTIVE 2]: Okay. How would you feel if your sister or brother got shot in the leg?
“[DEFENDANT]: I’m not going to say shit no more, man. I swear I didn’t even say nothing, man. Fuck.
“[DETECTIVE 2]: Okay.
“[DEFENDANT]: I didn’t do nothing, man.
“[DECTECTIVE 2]: All right. That’s fine. If you don’t want to talk to me, you don’t have to.
“[DEFENDANT]: I need to take a piss though, man.”
The next day, Detective Bailey contacted defendant, and the following exchange occurred:
“DET. BAILEY: What’s up, Thae. Have a seat. Hey, how’s it going? I’m Detective Bailey. You remember him. So I’ll be the one talking to you today. Um, there’s some things that I came here to clarify. Um, you started to tell my partner you were done talking and I’m here to clarify whether that means you were done for the night or you got nothing else to say to us. I’m here, if you do have something else to say, this is your chance.
“[DEFENDANT]: I swear to God, I do not know shit, man.
“DET. BAILEY: So so you’re saying you do have something you want to tell your side?
“[DEFENDANT]: I I don’t got nothing involved with the shooting so
“DET. BAILEY: So so what I I’m trying to clarify. You told him you were done talking. If you’re willing to talk to me, I need to know if that’s the case.
“[DEFENDANT]: Yeah. But I got nothing
“DET. BAILEY: Okay. So you--you are willing to talk to me? That’s all I’m trying to clarify. So you are willing to talk to me? You were just done talking for that night?
“[DEFENDANT]: Yeah. ’Cause man.
“DET. BAILEY: Okay. Do you mind if I ask you a few questions then?
“[DEFENDANT]: Yeah.” (Italics added.)
Detective Bailey then re-advised defendant of his Miranda rights, and defendant waived them. Defendant then told the detective that he was at a family barbeque all day, but left the party once, around 6:00 p.m., to buy some “crank” at the Fairfield Street apartments. He claimed he was there no more than four or five minutes, and otherwise denied any involvement in the shooting.
B. Ruling on Motion to Suppress
Defendant moved to suppress his statements to Detective Bailey on the ground they were taken in violation of Miranda. Although the court initially granted the motion on the grounds that the officers had disregarded defendant’s invocation of his Fifth Amendment right to remain silent, the court later changed its mind, ruling the statements admissible.
C. Claim of Error
Defendant contends the admission of the statements was reversible error. He asserts the trial court’s ruling disregarded the United States Supreme Court’s admonition in Michigan v. Mosley (1975) 423 U.S. 96 [46 L.Ed.2d 313] (Mosley) that once a suspect in custody notifies the officer that he wishes to remain silent, his right to cut off questioning must be “scrupulously honored.” (Id. at pp. 103-104 [46 L.Ed.2d. at p. 321].) We apply a de novo standard of review to determine whether, on the undisputed facts, defendant’s Miranda rights were violated. (People v. Riva (2003) 112 Cal.App.4th 981, 988-989 (Riva).)
It is well established that questioning must cease when a suspect invokes his right to remain silent. (Miranda, supra, 384 U.S. at pp. 473-474 [16 L.Ed.2d at p. 723].) However, unlike an invocation of the right to counsel, a suspect’s invocation of the right to silence does not create “a per se proscription of indefinite duration upon any further questioning by [the] police.” (Mosley, supra, 423 U.S. at pp. 102-103 [46 L.Ed.2d. at p. 321].) Instead, if questioning is resumed, the court must determine, under the totality of circumstances, whether the suspect’s right to cut off questioning was “‘scrupulously honored.’” (People v. Warner (1988) 203 Cal.App.3d 1122, 1129-1130, quoting Mosley, 423 U.S. at p. 104 [46 L.Ed.2d at p. 321].)
In Mosley, the United States Supreme Court held that the police did not violate a suspect’s rights, where, after his initial invocation of silence, the police “immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time [two hours] and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.” (Mosley, supra, 423 U.S. at p. 106 [46 L.Ed.2d at p. 322.)
In Riva, a suspect was given his Miranda rights when he was arrested in the field after a shooting. The suspect made some statements, but then declined to speak further with the police officer “right now.” (Riva, supra, 112 Cal.App.4th at p. 994.) About an hour later, the suspect was again approached by the same officer at the jail, who did not repeat the Miranda warnings. The suspect made incriminating statements. The Court of Appeal found no Miranda violation from the subsequent interview, despite the absence of new warnings. The court observed, “Ideally, the Miranda warnings should be repeated before reinitiating the interrogation of a suspect who has invoked the right to remain silent, but the failure to do so is not fatal if the ‘totality of the circumstances’ shows the suspect’s waiver remains voluntary, knowing and intelligent.” (Riva, at p. 993.)
Applying the totality of circumstances test, we find the officers in this case did not violate defendant’s Miranda rights. While a desire to halt the interrogation may be indicated in a variety of ways, the words used by the suspect “must be construed in context.” (In re Joe R. (1980) 27 Cal.3d 496, 515.) Here, while defendant occasionally indicated he was going to stop talking (“not going to talk no more, man” and “not going to say shit no more”) these locutions were consistently interwoven with denials of culpability (“I swear I did not do shit, man”; “I didn’t do nothing, man”), and thus did not manifest an unequivocal desire to halt the interrogation. (See People v. Jennings (1988) 46 Cal.3d 963, 977-979 [suspect’s statement “‘I’m not saying shit to you no more, man.... That’s it. I shut up,’” construed as “momentary frustration and animosity,” rather than clear invocation of rights].) Furthermore, when Detective Fan told defendant he did not have to talk if he did not want to, defendant ended the interview with the comment that he needed to “take a piss.” This left a vestige of uncertainty as to whether defendant was truly invoking his right to remain silent or simply wanted to break off the interview at that point.
Where a suspect’s invocation of the right to silence is ambiguous, the police “‘may continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights.’” (People v. Box (2000) 23 Cal.4th 1153, 1194, quoting People v. Johnson (1993) 6 Cal.4th 1, 27.) Detective Bailey sought such clarification by asking defendant if his responses the night before meant he did not want to speak further or was merely finished for the evening. When defendant indicated a willingness to tell his side of the story, Bailey gave him a full Miranda admonition before asking him substantive questions.
In light of the facts that (1) the officers waited a significant time following an equivocal invocation of silence before approaching defendant again; (2) resumed the interview only after defendant indicated a clear willingness to talk; and (3) gave him a new Miranda admonition prior to conducting the second interview, we conclude the trial court properly denied the motion to suppress on Miranda grounds.
Even assuming defendant’s statements were improperly admitted, we would not find reversible error. In the interview, defendant did not inculpate himself in the shooting. Instead, consistent with his alibi witnesses at trial, he insisted he was at a family barbeque all day. His gratuitous admission that he went to the Fairfield Street apartments for a few minutes at 6:00 p.m. (two hours after the shooting) to buy drugs did not seriously undermine the defense. Moreover, two witnesses positively identified defendant during police interviews, and their hesitancy in doing so at trial was obviously motivated by fear of gang retaliation. Thus, assuming a violation of Miranda, the admission of defendant’s statements to the police was harmless beyond a reasonable doubt. (People v. Sims (1993) 5 Cal.4th 405, 447-448, citing Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)
II. Gang Enhancement
Defendant claims the gang enhancement should be stricken. These arguments may be broken into two components: one based on an incorrect “legal theory” presented to the jury and the other based on insufficiency of the evidence. Neither has merit.
A. Incorrect Theory
Pursuant to section 186.22, subdivision (b)(1), the jury found that defendant’s crime of shooting at an occupied vehicle (§ 246) was committed “for the benefit of, or at the direction of, or in association with a criminal street gang, to wit ‘HNS’, with the specific intent to promote, further and assist in criminal conduct by gang members.”
The definition of a “criminal street gang” includes the requirement that its members “individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) A “pattern of criminal gang activity” is defined as gang members’ individual or collective “commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more” enumerated “predicate offenses” during a statutorily defined time period. (§ 186.22, subd. (e); People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).) The predicate offenses must have been committed on separate occasions, or by two or more persons. (§ 186.22, subd. (e); People v. Loeun (1997) 17 Cal.4th 1, 9-10.) The charged crime may serve as one of the predicate offenses. (Gardeley, supra, at p. 625; People v. Duran (2002) 97 Cal.App.4th 1448, 1457 (Duran).)
To prove a second predicate offense (other than the crime for which defendant was on trial), Detective Bailey testified about a drive-by shooting by Ger Lor, a member of HNS, of Johnny Her, a rival gang member. Bailey also recounted the drug raid on an HNS “hangout,” at Fairfield Street apartments, where two gang members were arrested for possession for sale of methamphetamine and possession of illegal firearms.
In closing argument, the prosecutor told the jury that they could find a second predicate offense based on either the Ger Lor shooting in 2005 or the fact that two HNS members were “having guns and selling dope” in 2007.
Defendant claims that the jury could consider only the Ger Lor shooting, which predated the charged crime, not the drug and firearm arrests that took place afterwards. The Attorney General concedes the prosecutor should not have urged the jury to consider the February 2007 arrests, but claims that because the Ger Lor drive-by shooting easily qualified as a second predicate crime, the error was harmless.
Defendant finds prejudicial error based on People v. Green (1980) 27 Cal.3d 1, 69 (Green) (overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 233-237 and People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3) and People v. Guiton (1993) 4 Cal.4th 1116, 1122 (Guiton), which hold that when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand. However, Green and Guiton are not relevant here, because they involved instructional error. Defendant does not claim the instructions were erroneous. The invalid factual theory he cites appears in the prosecutor’s closing remarks. That claim is forfeited, because he never objected to the prosecutor’s argument in the trial court. (People v. Morales (2001) 25 Cal.4th 34, 43-44.)
Furthermore, for the reasons that follow, we find the jury could consider Detective Bailey’s testimony about the drug raid on See Vue’s apartment in deciding whether a second predicate crime had been committed by the HNS gang.
Section 186.22 includes, as a predicate “offense” to show a pattern of gang activity, the “sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances.” (§ 186.22, subd. (e)(4).) It is true that a crime that takes place after the charged crime may not be considered as a predicate offense for purposes of satisfying the “pattern of criminal gang activity” requirement of section 186.22. (Duran, supra,97 Cal.App.4th at pp. 1463-1464.) However, nothing in the statute mandates that the arrest or conviction predate the charged offense. Section 186.22 merely requires “evidence of a gang’s past criminal conduct,” which must be “‘ascertainable to a reasonable degree of certainty and involve[] felonious conduct undertaken with a specific, criminal intent.’” (People v. Godinez (1993) 17 Cal.App.4th 1363, 1368-1369, italics added.)
Here, Kelly testified that See Vue had been dealing methamphetamine from his apartment and providing it to her. Officers conducting a raid of the apartment just one month after the shooting found four illegal firearms, more than 10 baggies, close to 80 grams of methamphetamine, and the remnants of a methamphetamine lab. Two HNS gang members were arrested and eventually convicted of possession for sale of methamphetamine. Based on this evidence, a reasonable jury could find that the HNS gang had engaged in felonious conduct, i.e., manufacture and sale of methamphetamine prior to the shooting. The fact that the arrests and convictions took place afterward did not preclude the jury from concluding that the criminal activities occurred during the relevant time frame.
B. Substantial Evidence
Defendant also claims the Ger Lor shooting could not be used as a predicate crime and thus the entire gang enhancement should be stricken, because there was no competent evidence that Ger Lor was a member of HNS. Defendant bases this argument on the assertion that Detective Bailey never gave an opinion that Lor was an HNS member, but relied on Lor’s validation by another officer. Since hearsay evidence may be relied upon by expert witnesses, but may not be used as “independent proof” of any fact (Gardeley, supra, 14 Cal.4th at p. 619), defendant contends there was a lacuna in proof that the drive-by shooting, of which Lor was convicted, was committed by a gang member.
In addition to Detective Bailey’s description of the facts surrounding the shooting, the prosecution introduced court records of Ger Lor’s conviction, including true findings on gang enhancements. Such official records are competent evidence to prove predicate crimes. (Evid. Code, § 452.5; Duran, supra,97 Cal.App.4th at pp. 1459-1462.) But defendant has not designated those exhibits as part of the appellate record. We must presume that evidence not before us would support the challenged finding. (Cf. Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Thus, the incomplete record on appeal effectively prevents us from assessing the sufficiency of the evidence, and results in a forfeiture of defendant’s substantial evidence argument. (People v. Malabag (1997) 51 Cal.App.4th 1419, 1427.)
In any event, defendant’s argument is based on a false premise. Detective Bailey did give an opinion that Lor was a gang member, as evidenced by the following colloquy:
“[PROSECUTOR]: Now, are you familiar with the facts of [the Ger Lor drive-by shooting]?
“[DET. BAILEY]: Yes, I am.
“[PROSECUTOR]: How did you become familiar with the facts of the Ger Lor case?
“[DET. BAILEY]: I read the case.
“[PROSECUTOR]: Now, what gang was Ger Lor in, if any?
“[DET. BAILEY]: Hmong Nation Society.” (Italics added.)
Bailey then added that Lor’s membership was validated by another member of the gang task force or a cop.
We summarily reject defendant’s claim that Detective Bailey’s recitation of another officer’s validation of Lor as a gang member violated his confrontation clause rights under Crawford v. Washington (2004) 541 U.S. 36, 67-68 [158 L.Ed.2d 177, 203]. At least two California cases have debunked this argument. (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427; People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)
Gang membership is the proper subject of expert opinion testimony. (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657.) The italicized quote amounted to an expert opinion by Detective Bailey on Lor’s gang membership, based on both a reading of the case file and Lor’s validation by a colleague. The mere fact that Bailey did not preface his statement by saying, “It is my opinion that... ” did not mean it was not admissible opinion testimony. Bailey’s opinion testimony, coupled with proof of Ger Lor’s gang-related conviction, constituted substantial evidence to support the jury’s finding that the drive-by shooting was committed by an HNS gang member. (See Duran, supra, 97 Cal.App.4th at p. 1463.)
III. Sentencing Issues
Defendant was convicted of violating section 246 (shooting at an occupied vehicle), with a special finding that the crime was committed to promote gang activity. (§ 186.22, subd. (b)(4) [hereafter section 186.22(b)(4)].) The jury also found true the enhancement allegation that defendant personally and intentionally used a firearm in committing the crime. (§ 12022.53(c).)
Applying section 186.22(b)(4), the court determined that defendant’s conviction was punishable by an indeterminate life term. The court selected 25 years as the minimum term by choosing the middle term (five years) as the base term for the “underlying conviction” (§ 246 violation) and adding in the 20-year enhancement provided for by section 12022.53(c). (See fn. 2, ante.) The court then added the 20-year firearm enhancement a second time, to arrive at an aggregate term of 25 years to life, plus a consecutive term of 20 years.
Section 186.22(b)(4) provides that “[a]ny person who is convicted of a felony enumerated in this paragraph 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, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment....” (Italics added.) Subdivision (b) includes serious (§ 1192.7) and violent (§ 667.5) felonies. (§ 186.22, subd. (b)(1)(B), (C).)
A. Street Gang Enhancement Trigger
Defendant claims the 20-year firearm enhancement of section 12022.53(c) was improperly imposed. As relevant here, that subdivision imposes a 20-year consecutive enhancement on those who commit specified felonies by “personally and intentionally discharg[ing] a firearm.”
Although section 246 does not appear as an enumerated felony, the trial court determined that defendant was subject to the enhancement by virtue of section 12022.53, subdivision (a)(17), which mandates the enhancement for those who commit “[a]ny felony punishable by death or imprisonment in the state prison for life.” The court reasoned that defendant’s crime satisfied this description because of the street gang enhancement, which changed the punishment for the section 246 conviction from a simple determinate sentence to an indeterminate life sentence.
Defendant contends the enhancement does not apply to his case because “felony punishable by imprisonment in the state prison for life” must be interpreted to mean only those felonies to which a life sentence already attaches, without taking into consideration the life term penalty provision triggered by the jury’s gang finding.
The California Supreme Court has recently resolved this claim against defendant’s position. In People v. Jones (2009) 47 Cal.4th 566 (Jones), defendant Jones was convicted of violating section 246 while personally using a firearm (§ 12022.53(c)). The jury also found that Jones committed the crime to benefit a street gang (§ 186.22(b)(4)). (47 Cal.4th at p. 572.) Like defendant here, Jones argued that the gang finding could not be used to transform the determinate sentence crime of shooting at an inhabited dwelling (§ 246) into a life term felony for purposes of imposing the 20-year enhancement. (47 Cal.4th at p. 574.)
The Supreme Court disagreed. It held that because section 186.22(b)(4) “‘sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the [gang-related] conditions specified in the statute’” (Jones, supra, 47 Cal.4th at p. 578, italics added, quoting People v. Jefferson (1999) 21 Cal.4th 86, 101), the section 246 conviction was punishable by imprisonment for life within the meaning of section 12022.53, subdivision (a)(17), and thus a proper target crime for the 20-year enhancement (47 Cal.4th at pp. 578-579). The Jones opinion also cited with approval People v. Florez (2005) 132 Cal.App.4th 314, 318-319, which the trial court relied on herein, and distinguished People v. Montes (2003) 31 Cal.4th 350, 352, a case that formed the centerpiece of defendant’s argument. (47 Cal.4th at pp. 576-577.)
The Jones decision is binding on this court and requires rejection of defendant’s argument to the contrary. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. Section 654
Defendant argues that section 654 prohibited the trial court from imposing a separate, unstayed term for discharging a firearm under section 12022.53. Because we shall strike the consecutive enhancement for the reasons set forth in part III.D., post), it is unnecessary to address this argument.
C. The Effect of Section 12022.53, Subdivision (j)
Defendant also contends that he cannot be subject to the 20-year firearm enhancement provided for by section 12022.53(c) because of the limitation on punishment set forth in subdivision (j) of the same statute (subdivision (j)). Subdivision (j) provides, in relevant part: “When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment for that enhancement pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another enhancement provides for a greater penalty or a longer term of imprisonment.” (Italics added.)
It is defendant’s position that the mandatory indeterminate life term sentence to which he was subjected by virtue of the gang finding (§ 186.22(b)(4)) constituted “another enhancement [providing for] a greater penalty or a longer term of imprisonment.” Thus, he urges, subdivision (j) bars imposition of the firearm enhancement.
Defendant’s argument is defeated by the same case he cites, People v. Shabazz (2006) 38 Cal.4th 55 (Shabazz). Shabazz was convicted of murder with a special circumstance finding that the crime was committed to promote gang activity. The gang finding subjected him to a penalty of life in prison without the possibility of parole. (§ 190.2, subd. (a)(22).) He contended that subdivision (j) prohibited tacking on the firearm enhancement as well, since the life without the possibility of parole term required by section 190.2, subdivision (a)(22) constituted “another provision of law [that] provides for a longer term of imprisonment.” (Shabazz, supra, 38 Cal.4th at p. 66.)
The California Supreme Court disagreed. It determined that defendant’s argument would render the enhancement inapplicable to a host of criminal offenses to which the Legislature explicitly intended it to apply (Shabazz, supra, 38 Cal.4th at p. 69) and would also produce sentencing consequences that would be “illogical and contrary to the purpose of the statute” (id. at p. 70). Accordingly, the proper interpretation of subdivision (j) is that the firearm enhancement may be imposed unless “a different enhancement provision... specifies a longer term.” (Shabazz, at p. 70.) Soon after Shabazz was decided, the Legislature changed the language of section 12022.53 by substituting “enhancement” for “provision of law,” thereby endorsing the state Supreme Court’s interpretation of subdivision (j). (See Stats. 2006, ch. 901, § 11.1.)
As noted, the 15-year-to-life minimum term prescribed by section 186.22(b)(4) is not a sentence enhancement. (People v. Jefferson, supra, 21 Cal.4th at p. 101.) Rather, it “is an alternate penalty provision that provides for an indeterminate life sentence for certain underlying felony offenses that are gang related.” (People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7, italics added.) Because subdivision (j) applies only where a different enhancement prescribes a longer term, the application of the life term penalty of section 186.22 to defendant’s sentence did not trigger the prohibition of section 12022.53, subdivision (j).
D. Interplay Between the Firearm Enhancement and Minimum Term Under Section 186.22
As noted, section 186.22(b)(4) changes the term for a gang-related section 246 conviction from the normal determinate “triad” to an indeterminate life sentence. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900, fn. 6.) The “minimum term” of that life sentence is described in section 186.22(b)(4) as follows:
“(4) Any person who is convicted of a felony enumerated in this paragraph 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, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:
“(A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph.
“(B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246 ; or a violation of Section 12022.55.” (§ 186.22, subd. (b)(4)(A), (B), italics & boldface added.)
As noted, the trial court selected 25 years as the minimum term by (1) choosing the middle term (five years) as the base term for the “underlying conviction” (§ 246 violation), and (2) adding the 20-year enhancement provided for by section 12022.53(c). The court then imposed the 20-year firearm enhancement again, by adding it as a consecutive term to the life sentence.
Both defendant and the Attorney General agree that the trial court erred, but they disagree as to the proper disposition. Defendant claims the court improperly imposed the 20-year consecutive enhancement after already having used it as the basis for fixing his minimum term under section 186.22(b)(4). The Attorney General contends that, because defendant’s life term does not arise until the gang enhancement is added, the proper minimum term was 15 years to life (the term prescribed in § 186.22, subd. (b)(4)(B) for a § 246 violation in the abstract), to which the 20-year firearm enhancement can then properly be added. We agree with defendant.
As the state Supreme Court has noted, section 186.22(b)(4) combines the underlying felony with any applicable enhancement in order to establish a minimum life term. (People v. Montes, supra,31 Cal.4th at p. 360.) Therefore, instead of having the firearm enhancement added to a determinate base term for the underlying crime, it is incorporated into an indeterminate sentence when fixing the minimum term (assuming the total number of years exceeds 15). Once the trial court added the enhancement onto the base term for defendant’s section 246 conviction in order to establish a minimum life sentence, it could not use it again to lengthen the total prison term.
This is made clear by section 12022.53, subdivision (f), which states: “Only one additional term of imprisonment under this section shall be imposed per person for each crime.” (Italics added.) Defendant was convicted of only one crime shooting into an occupied vehicle. Thus, while we agree that the trial court correctly used the section 12022.53(c) enhancement to lengthen the minimum term for defendant’s life sentence, once “spent,” the firearm finding could not be imposed again. We will order the judgment corrected by striking the separate 20-year enhancement which, under these circumstances, was unnecessary and duplicative.
DISPOSITION
Defendant’s sentence is modified by striking the consecutive 20-year term imposed under section 12022.53(c). The trial court is ordered to correct the abstract of judgment to reflect that defendant’s total sentence is an indeterminate sentence of 25 years to life in state prison with the possibility of parole. The trial court shall forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: SIMS, Acting P. J., NICHOLSON, J.