Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF116615 Robert E. Law, Judge. Retired Judge of the Mun. Ct. for the Orange Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.
Patricia J. Ulibarri, 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, and Christine Levingston Bergman and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
A jury convicted defendant and appellant Alejandro Martinez of aggravated mayhem (Pen. Code, § 205, count 1), assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1), count 2), and active participation in a criminal street gang (§ 186.22, subd. (a), count 3). The jury found true the allegation that defendant committed counts 1 and 2 for the benefit of a criminal street gang. (§ 186.22, subd. (b).) The trial court found true that defendant served a prior prison sentence. (§ 667.5, subd. (b).) The court sentenced him to a total state prison term of eight years eight months, plus life with the possibility of parole. The sentence consisted of eight years on count 2, which was deemed the principal count, eight months consecutive on count 3, plus life with the possibility of parole on count 1.
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant contends the sentences on counts 2 and 3 should have been stayed under section 654. We affirm.
FACTUAL BACKGROUND
On April 2, 2004, J.M. (the victim) was awaiting a court appearance on a robbery charge in a holding cell at the Robert Presley Detention Center. There were approximately 30 other inmates in the holding cell with him, including defendant, Jose Amaya, Abraham Ramirez, and Julian Tafolla. Defendant, Amaya, and Ramirez were known members of the Corona Varios Locos (CVL) gang. Tafolla was a member of another criminal street gang. The victim had previously testified at trial that a CVL gang member was involved in a robbery. He was thereafter labeled a “rat” at the jail. On April 2, he was standing in the holding cell and noticed that some inmates were looking at him and whispering. There were about seven people huddled up together whispering, including defendant, Ramirez, and Amaya. The other inmates started moving back against the wall, to get out of the way, because they apparently knew something was going to happen. Defendant backed the victim up against a bench. Then, Amaya approached the victim and told him he had something on his face. The victim wiped his face, but Amaya said, “No, let me get it for you.” Amaya quickly slashed the victim’s face with a razor blade. The victim was also cut on the back of his head. Defendant then punched and beat the victim along with a few others, who kicked and punched him. A corrections officer noticed that Tafolla was standing in front of the door of the holding cell, looking out the door. The officer came into the holding cell, saw a group of inmates piled on top of the victim beating him, and stopped the fighting.
At trial, Don Williamson, a peace officer at the Robert Presley Detention Center, testified that the cut Amaya made on the victim’s face was considered a “rat mark.” The mark is the inmates’ form of a scarlet letter, signifying to all inmates that this person is a snitch. Once an inmate receives such a mark, the officers have to put him in protective custody.
Investigator Michael Riley, a gang expert, also testified at trial. He testified that defendant had previously admitted to police he was a CVL gang member. Investigator Riley opined that defendant was an active participant. His moniker was “Spider.” Defendant had multiple tattoos signifying his membership, including the letters “CVL” on the back of his shaved head, a spider tattoo signifying his moniker, the word “Corona” on his chest, the words “Crown Town” on his abdomen, and a tattoo of a skull wearing a crown, which was a known symbol of the CVL gang, on his arm. Furthermore, when Investigator Riley conducted a search of defendant’s jail cell, he found items he believed were significant in defendant’s role as an active participant in the CVL gang, including a skull with a crown on top, and a birthday card addressed to defendant and signed by other gang members.
Based on a hypothetical involving the same facts as those in the present case, Investigator Riley opined the attack was committed for the benefit of a criminal street gang. He explained that the gang members’ violent activity in the jail benefits a gang because the gang gets a reputation for handling its own business. For example, here a person was identified as a snitch, and the gang took care of the problem. The violent conduct also instills fear of the gang in the gang subculture and in the community.
ANALYSIS
The Court Properly Sentenced Defendant
Defendant contends his sentences on counts 2 and 3 should have been stayed pursuant to section 654, since all of his offenses were part of an indivisible course of conduct. We disagree.
A. Section 654
Section 654, subdivision (a) provides, in pertinent part, that “[a]n 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....” “Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 294.) “The purpose of section 654 is to prevent multiple punishment for a single act or omission [or indivisible course of conduct], even though that act or omission [or indivisible course of conduct] violates more than one statute and thus constitutes more than one crime....” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135; People v. Harrison (1989) 48 Cal.3d 321, 335.) “The divisibility of a course of conduct depends upon the intent and objective of the defendant. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple. Each case must be determined on its own facts. [Citations.] The question whether the defendant entertained multiple criminal objectives is one of fact for the trial court, and its findings on this question will be upheld on appeal if there is any substantial evidence to support them. [Citations.]” (People v. Liu, supra, at pp. 1135-1136.)
B. The Court Properly Sentenced Defendant on Count 2
Defendant first argues there was insufficient evidence to support a finding that he had a different intent and objective in assaulting the victim than he had in assisting Amaya with the aggravated mayhem. He thus claims the sentence on count 2 and its accompanying gang enhancement should have been stayed under section 654. We disagree.
Before the court sentenced defendant, defense counsel requested the court to stay the sentence on count 2 for assault under section 654 because both the assault and the mayhem in count 1 were part of one continuous course of conduct. The court responded:
“I cogitated upon that issue starting yesterday when I got the file, but there were two events. There was the event where he was not—he was an aider and abettor, if you will, for the slashing. And then there was an assault upon the victim by a number of people, and he was one of them, and that was an assault with feet and hands, and that’s a different assault. It’s not the weapon.... and I think they’re sufficiently apart and sufficiently distinguishable, but it’s a new and separate event.”
There was sufficient evidence here to support the court’s finding that defendant’s course of conduct was divisible. The evidence showed that about seven inmates, including defendant, huddled up together and whispered to each other. Then they surrounded the victim. Defendant backed the victim up against a bench. After Amaya slashed the victim’s face, defendant beat him with his fists. Thus, defendant’s first course of conduct was to aid and abet Amaya and the other inmates involved with slashing the victim’s face. Officer Williamson testified that the cut Amaya made on the victim’s face was a “rat mark,” used to signify that he was a snitch. Defendant’s intent and objective in whispering with the others, surrounding the victim, and backing him up against the bench was to help facilitate the marking of the victim as a snitch.
Defendant’s second course of conduct was punching and beating the victim after the labeling of the victim as a snitch had been completed. In People v. Foster (1988) 201 Cal.App.3d 20, the defendants were convicted of robbery and false imprisonment, and sentenced to consecutive terms for those offenses. The Court of Appeal rejected the claim that section 654 barred separate punishment on the false imprisonment. It concluded that “[t]he imprisonment of the victims occurred after the robbers had obtained all of the money, and therefore was not necessary or incidental to committing the robbery.” (Id. at p. 27.) The Foster court added that the false imprisonment was “analogous to a needless or vicious assault committed after a robbery....” (Ibid.)
In People v. Nguyen (1988)204 Cal.App.3d 181, the defendant and his accomplice entered a market, and while the defendant opened the cash register, his accomplice took the clerk into a bathroom, took money from him, forced him to lie on the floor, and shot him in the back. (Id. at p. 185.) The defendant argued that section 654 barred consecutive sentences for the robbery and attempted murder convictions. (People v. Nguyen, supra, at p. 189.) The Court of Appeal concluded that substantial evidence supported the trial court’s finding of divisibility, since the shooting was not necessary or useful in effectuating the robbery, and was apparently not committed for that purpose. (Id. at p. 190.) The Nguyen court stated that the shooting “constituted an example of gratuitous violence against a helpless and unresisting victim which has traditionally been viewed as not ‘incidental’ to robbery for purposes of Penal Code section 654.” (Ibid.) Similar to the acts in Foster and Nguyen, the assault in the instant case occurred after Amaya had slashed the victim’s face. Thus, it was not necessary or incidental to committing the mayhem. The evidence showed that defendant, along with the other inmates, started punching and beating the victim and jumped in a “dog pile” on top of him. Defendant’s objective could have been just to inflict pain on the victim, since he had already been marked as a snitch.
We conclude there was sufficient evidence to support the court’s finding that defendant’s course of conduct was divisible, and that he, therefore, entertained multiple criminal objectives. (People v. Liu, supra, 46 Cal.App.4th at pp. 1135-1136.) The court properly sentenced defendant on count 2.
C. The Court Properly Sentenced Defendant on Count 3
Defendant’s contention that the term imposed on count 3 for active participation in a criminal street gang should have been stayed under section 654 is also meritless.
“Section 186.22, subdivision (a) punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself. Hence, under section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminal street gang. However, he does not need to have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendant’s objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense.... [S]ection 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime may thus possess ‘two independent, even if simultaneous, objectives[,]’ thereby precluding application of section 654. [Citation.]” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467-1468, second italics added, fns. omitted.)
Here, the basis of defendant’s street terrorism conviction under section 186.22, subdivision (a) was his active participation in the CVL gang itself. His active participation in the gang was clearly established through his admission that he was a CVL gang member, his gang moniker, items found in his jail cell that signified his membership, his CVL tattoos, and his association with other CVL members. Even if defendant attacked the victim on behalf of the gang, his objectives in committing the other felonies were separate from his intent to actively participate in the gang. As discussed ante, defendant’s objective in count 1 was to mark the victim as a snitch, and his objective in count 2 was apparently to inflict pain on the victim. (See § B, ante.)
We reject defendant’s claim that all of his acts were pursuant to a single objective. Initially, defendant asserts that the “entire objective of such a gang ‘beat down’ was to teach [the victim] a lesson and promote the interests of the CVL gang. Subsequently, he states that the “single objective... was all about gang business and... exerting the maximum amount of force a gang could inflict on a snitch to instill fear and gain respect.” (Italics in original.) Then, he asserts that the “single criminal intent or objective was to make sure [the victim] wore a scarlet letter for life not only to maintain good graces with the Mexican Mafia but to instill fear and respect for the CVL in that holding cell and the community at large....” The “one” objective defendant identifies clearly contains multiple separate objectives—to teach the victim a lesson, to generally promote the interests of the CVL gang, to exert maximum force on a snitch in order to instill fear and gain respect, to mark the victim with a scarlet letter, to maintain good graces with the Mexican Mafia, to instill fear and respect for the CVL amongst the other inmates in the holding cell, and to instill fear and respect for the CVL amongst the community at large.
“Finally, if section 654 were held applicable here, it would render section 186.22, subdivision (a) a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang. ‘[T]he purpose of section 654 “is to insure that a defendant’s punishment will be commensurate with his culpability.” [Citation.]’ [Citation.] We do not believe the Legislature intended to exempt the most culpable parties from the punishment under the street terrorism statutes.” (People v. Herrera, supra, 70 Cal.App.4th at p. 1468, fn. omitted.)
DISPOSITION
The judgment is affirmed.
We concur: GAUT J. KING J.