Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF119968. J. Thompson Hanks, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Ramon Tolentino Martinez.
Stephen M. Latrop, under appointment by the Court of Appeal, for Defendant and Appellant Gustavo Alonso Guevara.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, Lynne G. McGinnis and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
On October 21, 2004, fellow Dogs Town gang members Ramon Tolentino Martinez, Gustavo Alonso Guevara, and Erik Garibay were driving in Rubidoux in Martinez’s car. They drove past a rival gang member’s residence and yelled out, “Dogs Town.” Someone in Martinez’s car shot at the residence. Ricardo Rios and several other persons were outside the home at the time of the shooting. At the same time, unidentified persons in a sports utility vehicle (SUV) also called out “Dogs Town” and shot at the residence. Martinez, Guevara, and Garibay were stopped by the police 10 minutes later. A stolen nine-millimeter handgun was found secreted behind the glove box. Martinez and Guevara were convicted of the attempted murder of Ricardo, various discharging-a-firearm charges, receiving stolen property, being gang members in possession of a firearm, and active participation in a gang.
Defendants contend jointly and individually as follows:
1. Both defendants contend that there was insufficient evidence presented to support their conviction of receiving stolen property.
2. Martinez claims reversal of his convictions is necessary because the trial court improperly excluded defense evidence.
Guevara additionally contended in his opening brief that his conviction of assault with a firearm must be reversed because it was a lesser included offense of shooting from a motor vehicle, for which he was convicted in another count. In his reply brief, Guevara withdraws the issue, as it was recently decided against him in People v. Licas (2007) 41 Cal.4th 362.
3. Defendant Guevara contends he was improperly sentenced.
We find no prejudicial error but agree with Guevara that his sentence should be modified. Since the sentence was also imposed on Martinez and was unauthorized, we also modify his sentence. We otherwise affirm the judgment.
I
FACTUAL BACKGROUND
A. Shooting
At 7:30 p.m. on October 21, 2004, Ricardo Rios and his sister, Janet Rios, were outside their home located at 3997 Opal Street in Rubidoux. Bernadette and Antoinette Colunga were also at the home, visiting Janet. Ricardo, Janet, and Bernadette observed a white car turn onto Opal Street. The person in the passenger’s seat was wearing a dark hooded sweatshirt or jacket. Ricardo observed two other persons in the car, one in the driver’s seat and the other in the backseat.
Ricardo believed the person in the passenger’s seat yelled out, “Dogs Town.” Janet heard the passenger say, “This is Dogs Town. This is Dogs Town.” Bernadette heard someone from the white car yell, “Fuck Westside.” Ricardo told Janet and Bernadette to go inside the house because something was going to happen.
Ricardo remained outside. He heard someone from the white car yell “Dogs Town” again. Ricardo heard gunfire and saw a muzzle flash coming from the passenger’s seat of the car. He believed that the persons in the white car were shooting at his house. He also observed an SUV come down Rathke Street, which intersected with Opal Street at the Rios house. He heard gunfire coming from the SUV. Someone in the SUV also said, “Dogs Town.” Ricardo ran inside his house. Janet ran inside the house and then heard a gunshot. She did not see the shooting.
Bernadette was running to the house when she heard at least three gunshots. She ducked down and ran to the house. Bernadette told everyone, including Antoinette (who was already inside the house), to get down. Antoinette heard something that sounded like rocks hitting a wood fence.
Janet’s and Ricardo’s brother, Rimaldo “Tito” Rios, lived at the Opal Street house and was a member (or associate) of Westside Riva, which was a rival gang to Dogs Town. Ricardo associated with Westside Riva gang members but denied he was a member of the gang, even though he was photographed throwing gang signs.
Robert Rodriguez lived near 3997 Opal Street. About 7:45 p.m. that evening, he heard two different caliber gunshots. At the time he heard the gunshots, he saw an SUV stopped on Rathke Street near the Rios residence. After the gunshots, he observed the SUV speed past his house. Rodriguez never saw a white car on Opal Street. He did not see any muzzle flashes coming from the SUV; the gunfire sounded as if it was coming from the Opal Street house. Rodriguez could not see the front of the Rios house.
About 7:30 p.m. that evening, 14-year-old Erik Garibay, an active Dogs Town gang member, was riding in Martinez’s car. Martinez was driving, Guevara was in the passenger’s seat, and Garibay was in the back seat. They drove by the Rios residence. Garibay believed that rival Westside Riva gang member “Tito” Rios lived in the residence. As they drove by the house, someone at the residence yelled out, “Westside Riva.” Garibay shouted back, “Dogs Town.” Garibay, Martinez, and Guevara were then shot at by another car that looked like a Honda. Garibay did not think that someone at the Opal Street residence shot at them.
Garibay pleaded guilty to possession of a firearm with a gang enhancement prior to this trial.
B. Police Investigation and Detention of Martinez, Guevara, and Garibay
Riverside County Sheriff’s Deputy Roger Harris responded to the Opal Street residence about 10 minutes after the shooting. Ricardo, Janet, Bernadette, and Antoinette were all standing in front of the Opal Street house when he arrived. Deputy Harris began interviewing Ricardo. While they were talking, Ricardo, Janet, Antoinette, and Bernadette all pointed at a white four-door car that was driving north of the house. They advised Deputy Harris that it was the car that had been involved in the shooting. Bernadette observed the car “jerk” as it abruptly stopped.
Deputy Harris had conducted numerous gang-related investigations at the Rios residence prior to the night of the shooting.
Deputy Harris drove after the car. He activated his patrol lights and siren. Although the car did not speed up, it did not stop for approximately one-quarter of a mile. Deputy Harris ordered the driver, identified as Martinez, to throw out the keys. Deputy Harris then ordered him, along with Guevara, who was in the passenger’s seat, and Garibay, who was in the backseat, out of the car. Guevara told Deputy Harris that his last name was Torres. Both Ricardo and Janet identified a photograph of Martinez’s car as the one involved in the shooting. The car belonged to Martinez’s mother, but Martinez had driven it the entire day.
During a search of the car, a loaded nine-millimeter semiautomatic handgun was found in a compartment behind the glove box. The attached magazine had several rounds in it, and a live round was in the chamber. The plastic glove box had to be completely removed in order to access the back compartment where the handgun was hidden. The gun had been reported stolen on October 31, 2003.
Deputy Harris testified that he was unaware of any tests that could be conducted to determine whether the handgun had been recently fired.
Garibay claimed that 10 minutes after the shooting occurred, he, Martinez, and Guevara drove back by the Opal Street residence in order to drop Guevara at his house, located two to three blocks away. They were stopped by the police. Garibay had the loaded handgun in his waistband. He claimed that, although he was in the back seat, when Guevara was ordered out of Martinez’s car by the police, Garibay reached over the front seat and put the gun in the glove compartment. Garibay claimed he had the gun because he was a runaway and carried it for his protection. None of the officers who responded to the scene observed Garibay crawl over the front seat while he was inside the car.
Nothing was thrown from Martinez’s car while it was being chased by Deputy Harris. During a search of Opal Street and the Rios residence, .25-caliber casings were found in the street. Although the gun found behind the glove box would have ejected casings, no nine-millimeter casings were found in the car, on Opal Street, or at the Rios residence.
Small amounts of gunshot residue were found on the hooded jacket that Guevara had been wearing when he was detained and on a sweatshirt worn by Garibay. Gunshot residue tests were performed on the hands of Martinez, Guevara, and Garibay but were inconclusive. No particles of gunshot residue were found in Martinez’s car.
Garibay claimed that no one in Martinez’s car shot a gun that night. He saw no other gun besides the nine-millimeter. Garibay believed that Martinez did not know he had a gun in his possession that night.
C. Gang Testimony
Riverside County Sheriff’s Deputy Nathan Padilla testified as a court-recognized gang expert. Dogs Town, which was short for Dogs Town Riva, was a new gang in the Riverside area. There were only 12 to 15 documented Dogs Town members and only about 20 to 25 associates. Westside Riva, a rival of Dogs Town, essentially controlled all of Rubidoux. Sometime in the prior two years, Westside Riva gang members had killed a Dogs Town member.
Martinez’s gang moniker was Shy Boy. Martinez had a Dogs Town tattoo on his chest. On April 13, 2002, March 11, 2004, and March 14, 2004, Martinez identified himself as a Dogs Town gang member to police officers. Martinez also identified himself as a Dogs Town gang member while being booked in the instant case. Deputy Harris found a letter containing gang graffiti in Martinez’s car. Deputy Padilla believed that Martinez was an active Dogs Town gang member because he had admitted as much to other police officers and because he was oftentimes in the company of other Dogs Town gang members.
Deputy Padilla had had previous contacts with Guevara, who he believed was a Dogs Town gang member. Guevara also admitted that he was a Dogs Town gang member at the time he was booked in this case. Guevara’s gang moniker was Vato. He had no gang tattoos; however, he was shown in a photograph throwing gang signs. Deputy Padilla believed Guevara was an active gang member due to his admitting to law enforcement he was a Dogs Town gang member, because he was continuously in the company of fellow gang members, and because gang graffiti was found in his home.
Garibay had never admitted to Deputy Padilla that he was a Dogs Town gang member. The fact that Garibay had admitted in court that he was a Dogs Town member was significant.
Deputy Padilla confirmed that Rimaldo Rios was an active Westside Riva gang member, that he was known as Tito or Insane, and that he lived at 3997 Opal Street. Deputy Padilla also believed that Ricardo was a member of the Blue Devils, which was a smaller clique of the Westside Riva gang.
Deputy Padilla believed the drive-by shooting benefited the gang because it instilled fear in the community. It also showed the Westside Riva gang that Dogs Town was not afraid of them. By yelling out the Dogs Town name, the persons in the car committing the shooting were identifying themselves as Dogs Town gang members to show the community who was responsible. Furthermore, yelling out “[f]uck Westside” was a form of disrespect.
Dogs Town members had previously been documented committing crimes of vandalism, drive-by shootings, and assaults with deadly weapons. David Salgado, a Dogs Town member, had been convicted of felony vandalism in 2002. Martinez was with Salgado when the crime was committed, and someone had yelled Dogs Town Riva during the commission of the crime. Another Dogs Town member had been convicted of felony vandalism on July 19, 2004.
Deputy Padilla interviewed Guevara after he was detained. Guevara denied any involvement in the shooting. Guevara told Deputy Padilla that he knew who had committed the shooting but could not tell on his fellow gang members. He did not want to be a rat.
Prior to the shooting, Martinez’s family had moved out of Rubidoux.
Deputy Padilla indicated one would have to “shed some blood” or seek help from law enforcement in order to withdraw from the gang.
Deputy Harris testified that a .25-caliber bullet could not be fired from a nine-millimeter gun. Deputy Padilla indicated that .25-caliber and nine-millimeter handguns would sound different when fired. Deputy Padilla explained that it was common for gang members to return to the scene of the crime in order to prove a crime had been committed or in order to brag to fellow gang members.
Defendants presented no evidence.
II
PROCEDURAL BACKGROUND
A jury found both defendants guilty in count 1 of attempted premeditated and deliberate murder (Penal Code, §§ 664/187) with true findings on the allegations that a principal intentionally discharged a firearm (§ 12022.53, subds. (c) & (l)) and that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). The jury also found defendants guilty of assault with a firearm in count 2 (§ 245, subd. (a)(2)); discharging a firearm from a motor vehicle in count 3 (§ 12034, subd. (d)); discharging a firearm at an inhabited dwelling house in count 4 (§ 246); being a gang member in possession of a firearm in count 5 (§ 12025, subd. (b)(3)); receiving stolen property in count 6 (§ 496, subd. (a)); and active participation in a gang in count 7 (§ 186.22, subd. (a)). The jury found true the allegations in counts 2, 3, 4, and 6 that the crimes were committed to benefit a criminal street gang (§ 186.22, subd. (b)).
All further statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced defendants to state prison for total terms of 54 years to life. Both defendants filed timely notices of appeal.
III
SUFFICENCY OF EVIDENCE OF RECEIVING STOLEN PROPERTY
Both defendants contend that their conviction of receiving stolen property should be reversed for insufficiency of the evidence.
A. Standard of Review
Our review of any claim of insufficiency of the evidence is limited. In determining the sufficiency of the evidence, we review the entire record to determine whether the evidence was reasonable, credible, and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139; People v. Bolin (1998) 18 Cal.4th 297, 331.) The standard is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (Bolin, at p. 331.)
B. Analysis
To sustain a conviction for receiving stolen property, it must be proven that (1) the property was stolen, (2) the defendant knew the property was stolen, and (3) the defendant had possession of the stolen property. (People v. Land (1994) 30 Cal.App.4th 220, 223 (Land); § 496.) There is no dispute that the nine-millimeter gun found in Martinez’s car had been stolen.
Although defendants allude to the fact that they did not have possession of the handgun found hidden behind the glove box, neither defendant has raised a claim on appeal that there was insufficient evidence presented to support their conviction in count 5, which was based on knowing possession of a firearm by a gang member. Since the nine-millimeter handgun was the only weapon found in the instant case, that conviction rested on their possession of the nine-millimeter handgun.
Nonetheless, we believe defendants had actual or constructive possession of the weapon. “Possession” of stolen property may be actual or constructive, and it need not be exclusive. “‘It is sufficient if the defendant acquires a measure of control or dominion over the stolen property.’” (People v. Grant (2003) 113 Cal.App.4th 579, 596, quoting Land, supra, 30 Cal.App.4th at pp. 223-224.) On the other hand, “something more than mere presence or access” is needed to demonstrate the necessary control or dominion. (Land, at p. 225; see also In re Anthony J. (2004) 117 Cal.App.4th 718, 728.) Initially, we believe the evidence supports that the nine-millimeter handgun found secreted behind the glove box in Martinez’s car was used to commit the shooting that night. There is no dispute that it was the only handgun found in the car. Garibay testified that there was no other handgun in Martinez’s car that night. Moreover, even though there were only .25-caliber casings found on the street where the shooting occurred, there was evidence presented that two different caliber guns were fired that night. The nine-millimeter handgun was loaded and had a bullet in the chamber. Officers did not see anything thrown from the vehicle while they followed it. We believe that a reasonable inference from this evidence is that the nine-millimeter handgun was used during the shooting that night.
Since we believe the evidence supports that the nine-millimeter was used during the shooting, it follows that Guevara was either near the nine-millimeter gun or shot the gun during the incident. This was evidenced by the fact that he had gunshot residue on his clothes, and the muzzle flashes came from the passenger’s side of the car where Guevara was sitting.
The prosecutor argued to the jury that the nine-millimeter handgun found behind the glove box was used to commit the shooting and that Guevara was the likely shooter.
Additionally, Garibay’s claim that he placed the nine-millimeter handgun behind the glove box was not credible. Since Martinez was driving the car, it was reasonable for the jury to infer from the evidence presented that Guevara hid the handgun behind the glove box. Accordingly, there was substantial evidence to support the jury’s finding that Guevara had possession of the gun that night.
As for Martinez, he was driving the car when the drive-by shooting occurred. Martinez was present in the car when the gun was fired, and he allowed the weapon to be secreted in his car. Martinez therefore had enough dominion and control over the weapon to support the possession element of receiving stolen property.
Finally, there was sufficient evidence that Martinez and Guevara knew the handgun was stolen. “The knowledge element of receiving stolen property is normally proved not by direct evidence but by an inference from circumstantial evidence. [Citation.]” (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1019.) When possession has been established, corroboration on the issue of knowledge “‘need only be slight and may be furnished by conduct of the defendant tending to show his guilt.’” (In re Richard T. (1978) 79 Cal.App.3d 382, 388.) In other words, “knowing possession by a defendant of recently stolen property raises a strong inference of the other element of the crime: the defendant’s knowledge of the tainted nature of the property. This inference is so substantial that only ‘slight’ additional corroborating evidence need be adduced in order to permit a finding of guilty. [Citation.]” (People v. Anderson (1989) 210 Cal.App.3d 414, 421.)
Courts have been reluctant to draw a bright line in terms of what constitutes “recently” stolen property. (See People v. Anderson, supra, 210 Cal.App.3d at p. 422 [four-and-a-half month time span from theft to possession deemed recent]; People v. Lopez (1954) 126 Cal.App.2d 274, 278 [nine months long enough to weaken the inculpatory inference, but not vitiate it entirely].) Whether the time period is “recent” is a matter to be decided by the trier of fact. (Anderson, at p. 422.)
Here, the nine-millimeter handgun had been reported stolen on October 31, 2003, over one year prior to the instant crimes. This extended period of time certainly weakened the inference of guilty knowledge. However, it does not require reversal, as we believe the circumstances under which the gun was found established defendants’ conscious possession of stolen property.
Initially, Garibay claimed he had possession of the nine-millimeter handgun but provided no explanation as to how it was obtained. He merely stated that he carried it for his protection. Assuming Garibay initially had possession of the gun, certainly Martinez and Guevara would be suspicious as to how a 14-year-old boy came into possession of a handgun. Their conduct after seeing the gun, as discussed post, supports that they knew the gun was stolen.
Further, assuming either Martinez or Guevara had initial possession of the gun, they were fellow gang members who had just been involved in a drive-by shooting. Guevara gave a false name to police officers when they were detained. Martinez did not immediately stop when the police initiated the traffic stop, and the gun clearly had been concealed behind the glove box. (See People v. Taylor (1969) 2 Cal.App.3d 979, 983 [knowledge the gun was stolen reasonably inferred from the defendant’s flight and discarding the weapon when chased by police].)
It was reasonable for the jury to believe that both defendants had possession of the nine-millimeter handgun that night. Further, based on the suspicious circumstances under which it was found in Martinez’s car, that it reasonably could be inferred that Martinez and Guevara had knowledge that the gun had been stolen. Therefore, the jury reasonably could have concluded that both defendants were in possession of stolen property and uphold the judgment.
IV
EXCLUSION OF DEFENSE EVIDENCE
Martinez contends that the trial court improperly excluded evidence that he was regularly attending church and was gainfully employed as evidence to contradict the substantive gang crime in count 7 and the gang enhancements alleged pursuant to section 186.22, subdivision (b).
A. Additional Factual and Procedural Background
Prior to trial, Martinez made an offer of proof as to a witness who would testify regarding his regular attendance at church. Counsel for Martinez argued this evidence was relevant to rebut the active gang participation charge in count 7. The trial court inquired what Martinez’s attending church had to do with active participation in the gang. Counsel for Martinez responded that she intended to show a pattern of Martinez attending church services and being involved in activities at the church. This would contradict evidence that he was actively participating in the gang.
The trial court responded, “I’m afraid I don’t follow your logic. The fact somebody goes to church doesn’t mean they can’t be an active gang member.” Defense counsel responded that evidence that Martinez regularly attended church services and had near-perfect employment attendance was circumstantial evidence supporting that he was not actively participating in gang activity.
The trial court did not agree with defense counsel and excluded the evidence as irrelevant. The trial court advised counsel upon her request to revisit the issue during trial that she must show how going to church and being regularly employed was connected with a person not being a gang member. Anecdotally, the trial court noted that it had read that Nazis were “good churchgoers . . . .” Defense counsel retorted, “[B]ut we’re not talking about Nazis.” The trial court responded, “We’re talking about a gang.”
After the jury was selected, Martinez filed a motion to reconsider the admissibility of the above-mentioned evidence pursuant to Evidence Code section 402. In that motion, Martinez argued that “his full-time employment and extensive, consistent participation in church activities for two years prior to his arrest has a ‘tendency in reason’ to disprove the disputed fact of active participation in a criminal street gang.” Martinez also sought to have evidence introduced that Martinez had moved away from Rubidoux. The motion was denied without argument.
Martinez brought a new-trial motion, claiming that the trial court erred by excluding evidence of his employment and church-related activities to show he was not an active participant in the gang. Martinez attached employment time sheets and reviews received. He also attached a letter from a pastor of a church claiming that he was actively involved in the church. There was no additional argument made in open court, and the motion for new trial was denied.
B. Analysis
Evidence possessing any tendency in reason to prove or disprove any disputed material fact is relevant and admissible. (Evid. Code, §§ 210, 351; People v. Garceau (1993) 6 Cal.4th 140, 177.) The trial court is vested with wide discretion in determining the relevancy of evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Martinez sought admission of the evidence of his regular employment and churchgoing habits in order to dispute that he “actively participated” in the Dogs Town gang. The trial court determined that it was not relevant and made no assessment of prejudice. Hence, we only address whether the evidence was relevant to any disputed material fact.
Under section 186.22, subdivision (a), a person is subject to a separate substantive crime if it is found that he or she “actively participates in any criminal street gang . . . .” This phrase was initially interpreted by one appellate court to mean that a person devotes “all, or a substantial part[,] of his time and efforts to the criminal street gang.” (People v. Green (1991) 227 Cal.App.3d 692, 700.) The California Supreme Court disagreed with Green and found that “actively participates” requires only a showing of “involvement with a criminal street gang that is more than nominal or passive.” (People v. Castenada (2000) 23 Cal.4th 743, 747.)
Here, all that the prosecution needed to prove was that Martinez had more than a nominal or passive involvement in the gang. The fact that Martinez may have had time to be involved in other activities such as church or was gainfully employed would not have contradicted the above evidence. Hence, Martinez’s proffered evidence was not relevant to prove a disputed fact in this case.
Even if we were to conclude the trial court erred by excluding the evidence, we would find such exclusion harmless. The normal standard of review for erroneous exclusion of defense evidence is whether it is reasonably probable the jury would have reached a more favorable verdict had the evidence been admitted. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1104.) Erroneous evidentiary rulings may possibly rise to the level of a due process violation. (Montana v. Egelhoff (1996) 518 U.S. 37, 53 [116 S.Ct. 2013, 135 L.Ed.2d 361].) Although the “complete exclusion” of evidence establishing a defense may be a constitutional violation, the exclusion of defense evidence on a minor point is not. (People v. Cunningham (2001) 25 Cal.4th 926, 999; accord, Fudge, at pp. 1102-1103.)
Initially, we do not agree with Martinez that he was prevented from presenting a defense to the gang participation and gang enhancements in this case. Evidence was introduced that Martinez had moved from the area where the gang was located prior to the shooting. The jury nonetheless concluded he was an active Dogs Town gang member. Furthermore, Martinez could have presented evidence that he was no longer an active member of the Dogs Town gang by simply testifying he was no longer a member.
Regardless, there is no possibility the trial court’s evidentiary ruling prejudiced Martinez, whether tested under the state standard for evidentiary rulings (People v. Cunningham, supra, 25 Cal.4th at pp. 998-999; People v. Watson (1956) 46 Cal.2d 818, 836) or the standard applicable had the ruling completely prevented Martinez from establishing a defense. (Crane v. Kentucky (1986) 476 U.S. 683, 691 [106 S.Ct. 2142, 90 L.Ed.2d 636]; Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].)
Martinez claims that he was prejudiced because (1) he was deprived of any defense to the gang charge (§ 186.22, subd. (a)) and the gang enhancements (§ 186.22, subd. (b)(1)(A)), thereby ensuring his conviction on both the substantive offense and the enhancements, and (2) the jury clearly viewed this as a gang case, thereby finding him guilty of the substantive crimes. Initially, as set forth, ante, we disagree with Martinez that he was completely deprived of a defense. We further reject that the results of the case would have been different had the evidence been admitted.
There was substantial evidence presented that Martinez was more than nominally or passively involved in the Dogs Town gang. On the night in question, Martinez drove two Dogs Town gang members to a rival gang’s neighborhood and participated in a drive-by shooting. Martinez identified himself as a Dogs Town gang member when he was arrested immediately following this incident. Based on the events surrounding the instant crimes, Martinez was actively participating in the gang’s activities. In addition, prior to the shooting, Martinez already had the gang moniker Shy Boy and had Dogs Town tattoos. Martinez had previously identified himself as a Dogs Town gang member to police officers. In 2002, he had been present when another Dogs Town gang member had committed a crime. The evidence overwhelmingly supported that Martinez was actively involved in the Dogs Town gang, and the admission of evidence that Martinez also attended church and was employed would not have had any effect on the verdict.
There was also strong evidence presented to support the gang enhancements. Someone in both Martinez’s car and the SUV yelled out “Dogs Town” just prior to the instant shooting at the Rios residence. The shooting was committed in Westside Riva gang territory, and Rimaldo Rios, who lived in the house, was a known Westside Riva gang member. Westside was a rival gang of Dogs Town. The evidence of Martinez’s other activities would not have contradicted evidence that this was a gang-related drive by shooting in which Martinez served as the driver.
Finally, we disagree that the jury would not have found Martinez guilty of all of the substantive offenses had he been allowed to introduce evidence that he was a regular churchgoer and exemplary employee. Martinez claims that the prosecution’s “characterization” of him as an active gang member “unduly influenced” the jury to find him guilty of the substantive offenses. Initially, this claim is erroneous, as Martinez does not argue the prosecution could not introduce evidence that he was an active gang member. The prosecution still could “characterize” him as an active gang member regardless of whether the excluded evidence was admitted.
Strong evidence supported his convictions in this case. As stated, ante, Martinez was the driver in the drive-by shooting where someone in his car shot at the Rios residence. A loaded handgun was found secreted in his car, and he was apprehended in the area where the shooting occurred. The fact that Martinez would have presented to the jury evidence that he also attended church and had perfect attendance at work would not have contradicted this strong evidence of his guilt.
The evidence that Martinez regularly attended church and had regular employment was relevant only to invoke sympathy for Martinez and was irrelevant to the disputed fact that he was “more than [a] nominal or passive” member of the Dogs Town gang. (People v. Castenada, supra, 23 Cal.4th at p. 747.) The trial court properly excluded the evidence as irrelevant.
V
SENTENCING
Guevara contends that the trial court erred in sentencing him on count 1 first by sentencing him to a minimum parole eligibility of 15 years rather than 7 years and then by imposing an additional 15-year term for the gang enhancement (§ 186.22, subd. (b)) found true for that count. Respondent concedes the error. We agree.
Martinez does not raise the claim in his appeal or in his reply brief even though it equally applies to his sentence. However, respondent concedes that since the sentence imposed was unauthorized, Martinez’s sentence should also be modified. We agree.
Both Martinez and Guevara were sentenced on count 1, the attempted murder, to 15 years to life, plus a consecutive sentence of 20 years for the firearm arm enhancement pursuant to section 12022.53, subdivision (c)(e)(1), plus 15 years for the gang enhancement pursuant to section 186.22, subd. (b), for a total term of 54 years to life.
Section 12022.53, subdivision (e)(2) provides that an enhancement for participation in a criminal street gang pursuant to section 186.22 shall not be imposed on a person in addition to an enhancement imposed pursuant to section 12022.53, subdivision (e)(1), “unless the person personally used or personally discharged a firearm in the commission of the offense.” (See also People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282.)
Here, the prosecution did not allege that either Martinez or Guevara personally discharged a firearm, and the jury found the enhancement true pursuant to section 12022.53, subdivision (e)(1) based on a principal discharging a firearm. As such, we agree that the additional 15-year consecutive sentence for the gang enhancement was improperly imposed.
In addition, we agree that the trial court erred by imposing 15 years to life on the substantive offense of attempted murder. The minimum parole eligibility is 7 years, not 15, because the jury only found that a principal discharged a firearm. (People v. Salas, supra, 89 Cal.App.4th at pp. 1280-1281; § 3046, subd. (a)(1).)
Accordingly, we will modify the sentences.
VI
DISPOSITION
Defendants’ sentences for attempted murder on count 1 are modified to indeterminate life terms, subject to the minimum parole eligibility in section 3046, subdivision (a)(1), plus 20 years for the gun enhancement. The additional 15-year consecutive sentences for the gang enhancement allegations in count 1 are stricken. In all other respects, the judgment is affirmed. The trial court is directed to amend the abstracts of judgment to reflect the modifications and to send copies of the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
I concur: RAMIREZ, P.J.
CONCURRING AND DISSENTING
McKINSTER, J.
I agree with the majority with one exception. I respectfully dissent from the majority’s conclusion that the convictions for receiving stolen property in violation of Penal Code section 496 are supported by substantial evidence.
On appeal, we review the record in the light most favorable to the judgment to determine whether it discloses substantial evidence from which a reasonable trier of fact could find a defendant guilty. Credible evidence is evidence that is reasonable, credible and of solid value. (People v. Stanley (1995) 10 Cal.4th 764, 792.)
Certainly, the finding of a gun in a secret compartment behind the glove box suggests consciousness of guilt, but of what? The defendants were detained very shortly after a drive-by shooting. The gun’s concealed location suggests a desire to hide evidence of the crime just committed, the weapon used in the commission of that shooting.
There is just no evidence, direct or circumstantial, that the defendants knew that the hidden gun was stolen. The gun was not recently stolen. Its theft occurred over a year before. The majority’s reliance on the fact that the minor, Garibay, initially claimed the gun was his is misplaced. The majority suggests that the defendants should have been suspicious as to how a 14-year-old would come into possession of a gun if it were not stolen. However, suspicion is not evidence because it merely raises a possibility and is not sufficient to support an inference of fact. Therefore, evidence that merely raises a strong suspicion of guilt is not sufficient to support a conviction. (People v. Reyes (1974) 12 Cal.3d 486, 500.)
I am not persuaded that the defendants’ actions subsequent to the shooting support an inference of consciousness of guilt as to the stolen character of the recovered gun, as the majority claims. Yes, Guevara gave a false name after being detained, and Martinez, the driver, did take an unduly long time to bring the car to a stop after the police tried to initiate the car stop. That evidences consciousness of guilt, but, again, of what? The answer is that their actions are evidence of consciousness of guilt of their participation in the shooting from the vehicle, not that the gun used was stolen.
I would reverse the convictions for receiving stolen property, but otherwise affirm the judgment.