Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court Nos. RIF111497 & RIF11942 of Riverside County. Paul E. Zellerbach and Richard Todd Fields, Judges.
Jean F. Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MILLER J.
In a span of three days, defendant Ronald Frank McKinnon engaged in a spate of criminal activity. During the first two days, defendant sold rock cocaine to an undercover narcotics officer. On the third day, defendant pointed a gun at an officer to deter him from chasing defendant down an alleyway.
The narcotics officer will hereafter be referred to as “Officer Miller” or “Miller.” The officer at whom defendant ultimately pointed his gun, will hereafter be referred to as “Officer Crutchfield” or “Crutchfield.” The other officer involved in the July 31st incident, Sergeant Toussaint, will hereafter be referred to as “Toussaint.”
Defendant was charged in two separate cases. In case No. RIF111497 defendant was charged with one count of attempted murder (Pen. Code, §§ 664, subd. (e)/187), one count of assault with a semiautomatic firearm on a peace officer (§ 245, subd. (d)(2)), and one count of being a felon in possession of a semiautomatic handgun. (§ 12021, subd. (a)(1).) An allegation of personally using a firearm was alleged for the attempted murder and assault counts. (§ 12022.53, subd. (b).) A gang enhancement was alleged as to all three counts. (§ 186.22, subd. (b).) Two prison priors were alleged under section 667.5, subdivision (b), and one prior strike was alleged under section 1170.12, subdivision (c)(1) (a serious and violent felony).
All further statutory references will be to the Penal Code unless otherwise indicated.
In case No. RIF111942, defendant was charged with two counts of transporting or selling cocaine base (Health & Saf. Code, § 11352, subd. (a)), each with a separate allegation that the offenses were committed to benefit a gang. (§ 186.22, subd. (a).) Two prison priors were alleged under section 667.5, subdivision (b), and one prior strike was alleged under section 1170.12, subdivision (c)(1). A prior serious felony was also alleged. (§ 667, subd. (a).)
Each case was tried separately, with the attempted murder case being tried first. The jury convicted defendant of attempted murder and found that the attempt was willful, deliberate and premeditated; that the victim of the attempt was a peace officer; and that the personal use allegation was true. The jury also found defendant guilty of assaulting an officer with a semiautomatic firearm and found the personal use allegation true. The gang allegations for these two counts were found not true. Defendant was also found guilty of being a felon in possession of a handgun and the gang allegation was found true for this count.
In the drug case, defendant was found guilty of all charges and enhancement allegations. Defendant was sentenced for both cases at the same time. In this consolidated appeal, defendant argues several errors were committed in both the attempted murder case and the drug sale case. We agree with defendant that the trial court should have stayed his two-year sentence for each of his section 186.22, subdivision (a) convictions in his drug case, and order that the sentence be modified. In all other respects, we reject defendant’s contentions and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
While participating in a controlled buy program on July 29, 2003, Officer Miller, a narcotics officer, was trying to find someone to sell him cocaine. When Miller found a drug “broker” who could “hook him up” for $20, the broker enlisted a drug “runner’s” help to procure the drug. While waiting for the runner’s return, Miller and the broker spied defendant in a nearby parked car. Recognizing the defendant, the broker got $10 from Miller to purchase drugs, walked to defendant’s car, and exchanged the money for $10 worth of cocaine. The delayed runner returned with $20 worth of cocaine.
The next day, Officer Miller found defendant a block away from where he purchased cocaine the day before. Miller asked defendant if he could buy $20 worth of cocaine. Defendant told Miller he recognized him from the day before, introduced himself as “Snipe,” and sold him two rocks of cocaine. Defendant said “they remembered [him,] they took care of [him] the day before just up the street.”
On July 31, 2003, defendant got into a heated argument with his wife in public, attracting the attention of officers on the street. When the officers stopped to investigate whether this was a domestic violence incident, defendant ran away, and with his hands reached inside his waistband. Defendant then disappeared behind a block wall. One of the officers, Officer Crutchfield, ran to the block wall and looked over the top. Crutchfield saw defendant run past, lift up his shirt with his left hand, and pull a gun from his waistband with his right hand. Crutchfield leapt over the wall and chased defendant, while ordering him to drop the gun. Defendant responded by turning his head, saying “‘I will drop you’” to Crutchfield and pointing the gun. Seeing the barrel pointed at him, Crutchfield fired one round at defendant, but missed, hitting a lamppost instead.
The chase continued out of the alley and onto the streets. Defendant slowed his pace, turned deliberately, and aimed his gun at Officer Crutchfield. When Crutchfield saw defendant pointing the gun at him for a second time, he fired his service weapon and hit defendant in the buttocks, causing defendant to fall to the ground and to drop his gun.
In addition to a backup officer—Toussaint—a civilian witness observed the brandishing and the shooting.
On July 31 at 6:00 a.m., Rick Holland (Holland) was sitting in a chair near his balcony. His apartment’s balcony overlooked the alley. Holland could hear the officer yell several times to “drop the gun.” When Holland looked out of his balcony to see what the commotion was about, he saw defendant raise his gun and point it at the officer.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Admitting Lay Opinion.
At the beginning of trial, defense counsel made an in limine motion on the grounds of inadmissible lay opinion to exclude Holland’s statements that he was “surprised that the officer didn’t shoot [defendant] sooner, or he himself, if put in that position, would have shot [defendant] sooner.” The trial court granted the defense’s motion and instructed the prosecutor that Holland could not testify about what he would have done in that situation because his opinion was irrelevant. The trial court asked the prosecutor to inform the court as to what exactly Holland would testify. It found Holland’s description of his reaction to Officer Crutchfield’s delayed shooting was highly probative, as it described the event and corroborated Crutchfield’s testimony that reasonable force, and not excessive force, was applied in response to the threat. Holland’s comments such as “‘I was surprised,’” or “‘I thought there would be a shooting at that point, and it didn’t happen until later on’” were admissible.
Prior to Holland’s testimony, the prosecutor made an offer of proof that Holland would testify “‘I was fearful for the officer,’” and “[I] believed [I] was going to see a shooting,” when he saw two individuals with guns pointed at each other. Defense counsel objected that what Holland thought or feared was irrelevant. The trial court ruled that the prosecution could ask Holland two leading questions: “Did you believe you were going to see a shooting? And were you fearful for the officer?” The court determined that posing leading questions to Holland preemptively blocked Holland from testifying about his irrelevant opinion as to how Officer Crutchfield should have shot earlier.
Defendant contends Holland’s testimony that he “believe[d] he was going to see a shooting” and “thought the officer was going to be shot” was inadmissible lay opinion. Testimony of a lay witness in the form of an opinion is limited to an opinion (1) rationally based on the witness’s perception, and (2) helpful to the clear understanding of his testimony. (Evid. Code, § 800.)
While defendant concedes that Holland’s opinion was based on his perception, thus satisfying the first prong of Evidence Code section 800, he claims that the trial court abused its discretion by never addressing whether Holland’s opinion helped the jury understand his testimony. He maintains that Holland’s testimony was cogently precise and specific in explaining to the jury what happened that day. As Holland’s testimony created a clear picture, and the details were not “‘too complex or too subtle,’” lay opinion evidence was unnecessary.
Citing People v. Hurlic (1971) 14 Cal.App.3d 122, 127.
Defendant complains that Holland’s opinion usurped the jury’s province to resolve the facts in two ways: (1) in the attempted murder of a peace officer offense, Holland concluded the officer would be shot; and (2) in the assault of a peace officer with a semiautomatic weapon offense, Holland concluded the way the defendant held the gun would probably and directly result in the application of force.
The admissibility of lay opinion testimony is reviewed for abuse of discretion. (People v. Thornton (2007) 41 Cal.4th 391, 453.) We conclude that the trial court did not abuse its discretion in allowing Holland to testify that “he thought the officer was going to be shot” or to testify “he believed there was going to be a shooting.”
During direct examination, the prosecutor asked Holland, “At that particular moment, were you fearful for the officer?” Holland responded, “I thought the officer was going to be shot sir.” We believe the statement, “I thought the officer was going to be shot,” is not a lay opinion at all, but rather was the witness’s description of his internal emotional response to the event.
A witness can only testify as to those matters he has personal knowledge of. (Evid. Code, § 702.) “‘Personal knowledge’ means a present recollection of an impression derived from the exercise of the witness’s own senses.” (Cal. Law Revision Com. com., 29B pt. 2 West’s Ann. Evid. Code (1995 ed.) foll. § 702, p. 300.) An opinion is an inference from the facts observed. (1 Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence, § 1, p. 528.) It has been recognized for a long time that “the border line between fact and opinion is often very indistinct.” (Healy v. Visalia & T.R. Co. (1894) 101 Cal. 585, 589.) “Impressions or sensations caused by external objects are not susceptible of exact reproduction or description in words, nor do they affect every individual alike, and the judgment or opinion of the witnesses by whom they have been experienced is the only mode by which they can be presented to a jury.” (Ibid.)
To “‘[p]erceive’ means to acquire knowledge through one’s senses.” (Evid. Code, § 170.)
In responding to the question of whether he was “fearful for the officer,” Holland said, “I thought the officer was going to be shot.” The prosecutor’s query whether Holland felt fear was one that he could testify to: he had personal knowledge of the emotions he experienced at the time he observed the incident. When asked about his fear for the officer, he responded, “I thought the officer was going to be shot.” Holland’s expressing his fear as a “thought” was a generic expression to convey his internal processes. A fair reading of the record was that Holland’s “thought” that “the officer was going to be shot” is a shorthand method of saying that he observed the officer and defendant pointing guns at each other within 30 to 40 feet and defendant appeared to have a threatening demeanor, causing Holland to feel fear. “The paucity of language, and the incompetence of witnesses to describe graphically the photograph left upon the mind by observed facts, renders every effort to convey to a jury an adequate conception of the ultimate fact futile except by announcing the conclusion in their own minds.” (Holland v. Zollner (1894) 102 Cal. 633, 638.)
Holland also testified to the facts that gave rise to his fear: he saw the officer running after defendant; both had guns in their hands. Defendant turned his head to look back at the officer, locked his arm behind him, and pointed the gun at the officer. Thus, Holland’s statement that he was fearful for the officer because he thought the officer was going to be shot is a colloquial way of expressing the fear he experienced while he perceived the defendant pointing the gun at the officer. This is not an inadmissible lay opinion.
Holland’s second statement, “I believed [I was] going to see a shooting” is a lay opinion. Unlike the previous statement that only described facts Holland perceived, the statement relates Holland’s particular view of what he observed and sensed. In other words, it was an inference that a shooting was going to occur based upon the fact he observed two people pointing guns at each other.
“Lay opinion testimony is admissible . . . ‘when the matters observed are too complex or too subtle to enable [the witness] accurately to convey them to court or jury in any other manner.’ [Citations.]” (People v. Williams (1988) 44 Cal.3d 883, 915.) Holland’s second statement satisfies the two prongs of Evidence Code section 800: (1) it is based upon his perception of two people in close proximity pointing guns at each other, and (2) it helped the jury clearly understand his testimony: that the guns were pointed in time and space in a manner indicating a projectile would soon come out of the gun to strike the officer. Painting a word picture of the armed conflict between the officer and defendant was helpful for the jurors to clearly understand whether defendant had the specific intent to kill. Thus, the trial court did not abuse its discretion in admitting Holland’s opinion.
B. Conceding Guilt to the Lesser Charge in Order to Obtain an Acquittal on the Attempted Murder Charge Is Not Ineffective Assistance of Counsel.
In both his opening statement and closing argument, defense counsel conceded to the jury that defendant possessed a gun. The prosecution was claiming that defendant had the specific intent to kill when he pointed the gun at Officer Crutchfield. To rebut the prosecution’s claim, defense counsel stated the only crime that occurred when defendant pointed the gun was an assault upon Crutchfield.
In two Marsden hearings, defendant complained that his attorney should not have conceded he pointed a gun at Officer Crutchfield because he denied ever doing so. The trial court denied both requests for new counsel.
People v. Marsden (1970) 2 Cal.3d 118.
On appeal, defendant contends that defense counsel rendered ineffective assistance because this was not as serious as a death penalty case; hence the case did not merit counsel’s concession in order to spare him from a death sentence. He also asserts counsel’s concession increased the likelihood that he would be found guilty of attempted murder because the prosecutor used the assault as evidence of his specific intent to kill necessary to establish attempted murder.
Defendant’s potential 28-year term for conceding an assault on a peace officer with a semiautomatic use enhancement is derived from assuming the upper term of 9 years, which is doubled because of a prior strike to 18 years, plus 10 years for the firearm use allegation.
Defendant must meet two prongs to establish inadequate legal representation: (1) he must show, under prevailing professional norms, his counsel’s performance was deficient because it fell below an objective standard of reasonableness, and (2) prejudice resulted from counsel’s act or omission. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 (Strickland).) Prejudice will be found if there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (In re Sixto (1989) 48 Cal.3d 1247, 1257, citing Strickland, supra, at p. 694.) A defendant must also show that counsel’s act or omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make. (People v. Gurule (2002) 28 Cal.4th 557, 611.)
First, we disagree with defendant’s argument that counsel’s concession was not merited as this was not such a serious case to warrant the concession. In the first Marsden hearing, defense counsel stated that he was trying to avoid a life sentence. This is a reasonably tactical decision. As the trial court aptly noted, being convicted of the lesser charge of assault with an exposure of 28 years, “it’s a long time, don’t get me wrong—but it’s a heck of a lot less than 25 to life [for an attempted murder conviction]. Because with 25 to [life], you may never get out.” It was to defendant’s benefit to argue for a conviction that exposes him to a determinate sentence rather than a life term.
We also disagree with defendant’s claim that counsel’s concession increased the likelihood that he would be found guilty of attempted murder because the assault was used as evidence of specific intent to kill to establish the attempted murder.
It is not ineffective assistance of counsel to admit obvious weaknesses in a defense case. (People v. Mayfield (1993) 5 Cal.4th 142, 177.) While “a defense attorney’s concession of his client’s guilt . . . can constitute ineffectiveness of counsel,” there may be times when it would be a reasonable trial tactic to “‘adopt[] a more realistic approach’” and concede some facts. (People v. Gurule, supra, 28 Cal.4th at p. 612; People v. Diggs (1986) 177 Cal.App.3d 958, 970.)
There is a strong presumption that counsel’s actions were based on sound trial strategy, even when counsel concedes some degree of guilt. (People v. Freeman (1994) 8 Cal.4th 450, 498.) Where evidence of guilt is quite strong, it is understandable that trial counsel, given the weight of incriminating evidence, would not make sweeping declarations of the defendant’s innocence but instead would adopt a more realistic approach. Good trial tactics may depend on complete candor with the jury. (People v. Gurule, supra, 28 Cal.4th at p. 612; People v. Lucas (1995) 12 Cal.4th 415, 446; People v. Powell (1974) 40 Cal.App.3d 107, 167, disapproved on other grounds by People v. Harris (1984) 36 Cal.3d 36.)
The evidence that defendant had pointed the gun at Officer Crutchfield was overwhelming. Crutchfield testified that defendant pointed a gun at him. Toussaint, his partner, testified he saw defendant point a gun at Crutchfield. Holland, the civilian witness, testified he saw defendant point a gun at Crutchfield. After Crutchfield shot defendant, Toussaint recovered a gun lying near the defendant. Faced with this evidence, it was patently reasonable for defense counsel to concede the fact that defendant pointed a gun at Crutchfield. Although counsel conceded the actus reus, he did not concede the mens rea, which was the seminal issue in the case. Counsel argued defendant did not have the specific intent to kill Crutchfield, but was only trying to get away from him.
We conclude it was not ineffective assistance on defense counsel’s part to concede some measure of culpability and offer the jury another choice in defendant’s favor; it was a reasonable trial tactic. (People v. Bolin (1998) 18 Cal.4th 297, 334-335; In re Alcox (2006) 137 Cal.App.4th 657, 668-669.) Where the incriminating evidence was strong and counsel offered some other choice in the defendant’s favor, concessions in closing argument do not constitute ineffective assistance of counsel. (People v. Hart (1999) 20 Cal.4th 546, 631.)
Under these circumstances, we cannot equate such candor with incompetence. (People v. Gurule, supra, 28 Cal.4th at p. 612.) “‘A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an “irreconcilable conflict.” “When a defendant chooses to be represented by professional counsel, that counsel is ‘captain of the ship’ and can make all but a few fundamental decisions for the defendant.”’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 682.)
C. The Trial Court Did Not Abuse Its Discretion in Admitting Defendant’s Gang Moniker.
Prior to the testimony of a gang expert witness, the prosecutor made a motion to admit photographs of tattoos on defendant’s forearm and back. The tattoos read “Sniper,” “12,” and “1200 Blocc Crip.”
To prove the section 186.22 gang enhancement on all three counts, the prosecution had to prove that the attempted murder, assault, and felon-in-possession-of-a-firearm offenses were committed for the benefit of a gang. The defense stipulated that defendant was a gang member, but did not stipulate that the charges were committed to benefit a gang.
Out of the presence of the jury, the trial court voir dired the expert asking his opinion whether the word “Sniper” had an independent significance in the case. The gang expert said the term “Sniper” was significant because defendant earned his nickname by being a shooter and using a gun in the past. The trial court found it problematic that evidence of defendant’s past use of a firearm could be admitted through the expert’s testimony. The prosecution informed the court it did not seek to discuss defendant’s prior conduct.
The trial court ruled that the photographs of the tattoos would be excluded, but the gang expert could testify that defendant’s moniker was “Sniper,” and that gang members earn their monikers based on their appearance or personality. The prosecutor then could argue any inferences arising because defendant’s moniker was “Sniper.”
After weighing the prejudicial versus probative effects of admitting the moniker, the trial court agreed that the term “Sniper” was prejudicial in a case involving assault with a deadly weapon on a police officer, but it was also highly probative. The moniker not only established defendant’s status in the gang, but also could explain defendant’s conduct.
When the trial court asked defendant whether he would stipulate to being an active gang member, defendant expressed concern that the gang expert would testify that the responsibility of an active gang member was to “take out the cops.” Defendant reluctantly agreed to the stipulation, in order to avoid the prosecution mounting evidence of his drug deals two days prior to the shooting and questioning his wife on her knowledge of his gang status. Defense counsel objected that publishing defendant’s moniker “Sniper” to the jury was highly prejudicial as this case involved an attempted shooting.
The gang expert testified a moniker is a nickname given by a family member, relates to a physical feature, or relates to the type of crimes a gang member committed. Tattoos, monikers, graffiti, and clothing show allegiance to a gang. Defendant had previously admitted membership with the 1200 Blocc Crips with a moniker of Sniper. The word “Sniper” was tattooed on his body, and his name was part of a gang roll call.
On January 6, 1998, defendant told Riverside Police Officer that his nickname was Sniper and he belonged to the 1200 Blocc Crips gang.
Defendant was one of the OGs (original gangsters), who were at the highest levels of the gang hierarchy, and who had their voices heard as to the gang’s direction. The 1200 Blocc Crips were primarily associated with drug sales and crimes of violence such as murders, attempted murders, assault with a deadly weapon, and robberies.
After the prosecution posed a hypothetical based upon the facts in the case, the gang expert opined that the assault and the firearm possession benefited the gang. The firearm possession allowed the gang to control and maintain territory, and firearms were used for offensive and defensive purposes against other gangs. The assault against the officer showed defiance of the police: a gang member who challenges police elevates his status in the gang, as the gang culture equates fear with respect, and those who are not afraid to even take on armed authority are the most violent, hence the most respected. Firing at the police benefits the individual gang member’s reputation within the gang, but also elevates the gang’s reputation in the community. Not only did it maintain defendant’s OG status, but it also raised it higher because other 1200 Blocc Crip members would say that their leader was doing what a leader should be doing.
During his closing argument, the prosecutor argued, “This is Sniper, an original gangster, one of the upper echelons of the 1200 Blocc Crips, one of the shot callers. One of the top nine or ten people for the gang. [¶] How do gang members get their monikers, their nicknames. They earn them. He is a sniper. He is armed, because that’s who he is. He is armed for that simple reason. He is armed to be ready, to be prepared. That’s his life. It encompasses what he does. That’s what we have on the street on July 31, 2003.”
We disapprove of the prosecutor’s improper insertion of inadmissible character evidence into his closing argument: “He is a sniper. He is armed, because that’s who he is.” We frown upon this “take no prisoners” prosecutorial approach and caution that the inappropriate use of character evidence in argument is not a model to be applied in future trials.
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A court’s exercise of its discretion under Evidence Code section 352 is not a ground for reversal unless the “‘“court acted in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.”’ [Citation.]” (People v. Ochoa (2001) 26 Cal.4th 398, 437-438.) “The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court’s decision exceeds the bounds of reason.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Defendant asserts that the trial court abused its discretion in admitting “Sniper” evidence, and in the wide range the court gave the prosecutor to argue any reasonable inference. He contends the evidence of the “Sniper” moniker was improper character evidence because the prosecutor argued, “‘He is armed, because that’s who he is.’” He asserts it was inadmissible to establish prior criminal conduct, inadmissible as reputation evidence, and inadmissible to support or attack credibility. He also asserts it was improper use of expert testimony to argue that having the moniker “Sniper” was “‘why [defendant] shot the officer.’”
We disagree. Evidence that defendant’s gang moniker was Sniper was not introduced to show his character of being a shooter. Rather, the evidence was introduced to establish defendant’s status in the gang.
Evidence Code section 1101 reads: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
The prosecution never tendered any evidence that defendant had engaged in prior uncharged shootings or other firearm crimes. Defendant’s moniker was not introduced to show defendant was the shooter in this case because he called himself by that name.
At issue was whether defendant committed the attempted murder and assault for the benefit of his gang. A gang benefits from an attempted murder and assault of an officer because the acts show the gang members are not afraid of law enforcement; thus, they are to be feared and respected. The term “Sniper” delineates defendant’s role or function within the gang as one who uses a firearm. Firearms are used by gangs in an offensive and defensive manner; the possession and use of firearms benefits the gang by protecting its members and turf, and by enlarging the gang’s influence by use of force. Defendant’s pointing a gun at an officer elevates his status as a gang leader because it shows his fearlessness in the face of armed authority. Thus, the prosecution’s use of the moniker “Sniper” is only one small piece of evidence among other evidentiary facts that the expert testified showed defendant committed this offense for the benefit of his gang.
Evidence that a person committed a crime or other act is admissible when relevant to prove some fact such as motive, opportunity, or intent. (Evid. Code, § 1101, subd. (b).) Revealing defendant’s moniker was “Sniper” was relevant to motive. The gang expert described how the gang benefited from defendant’s conduct. He explained defendant had a motive to fire at the officer in order to elevate his leadership status in the gang and to enhance the gang’s respect in the community. We find that the trial court’s admission of defendant’s moniker was not an abuse of discretion.
Even if we were to conclude that it was an abuse of discretion to admit the “Sniper” moniker, we would find the error was harmless. As the jury found the gang enhancement “not true,” defendant was not prejudiced by that evidence.
D. The Trial Court Properly Denied Defense Requests for Self-Defense and Excessive Force Instructions.
Defendant contends that the trial court failed to give jury instructions relating to his right to use reasonable force to defend against the excessive force. He asserts that the trial court should have given CALJIC Nos. 5.30 (Self-Defense Against Assault), 5.17 (Actual but Unreasonable Belief in Necessity to Defend-Manslaughter), 5.51 (Self-Defense-Actual Danger Not Necessary), 5.54 (Self-Defense by an Aggressor), 5.55 (Plea of Self-Defense May Not be Contrived), 9.28 (Excessive Use of Force by Officer) and 9.29 (Performance of Duties of Office-Burden of Proof).
We analyze defendant’s self-defense and excessive force claims separately.
1. Self-Defense.
The officers’ investigation of a potential domestic violence crime evolved into a chase. When Officer Crutchfield got out of the patrol car, defendant started to run. The officer saw defendant dig into his waistband with his hands. Defendant ran behind a wall. When Crutchfield peered over the wall to see what defendant was doing, he saw defendant lift his shirt with his left hand and with his right hand remove a gun from his waistband while he ran down an alley.
Officer Crutchfield jumped over the wall, drew his gun, and then chased defendant while yelling, “Stop or I will shoot you.” Defendant turned his head and said, “‘I will drop you’” and pointed the gun at Crutchfield. As Crutchfield believed defendant was going to shoot, he fired one shot at defendant, but missed.
Officer Crutchfield continued chasing defendant out of the alley and onto the streets. As they emerged from the alley, defendant slowed his pace, turned his upper body deliberately and aimed his gun at Crutchfield. When Crutchfield saw the barrel of the gun pointed at him, he fired one bullet at defendant hitting him in the buttocks, causing defendant to fall to the ground and drop his gun.
Defendant presented two defense theories as a basis for requesting self-defense instructions: (1) the second time defendant pointed his gun at Officer Crutchfield was because the defendant had an honest but unreasonable belief he had to defend himself, and (2) Crutchfield lied when he said defendant pulled a gun first. Defendant argues that he was entitled to a self-defense instruction on both the assault and the attempted murder charges. He claims the disputed issue was whether defendant pulled out a gun before or after Crutchfield drew his weapon during the chase. In arguing for the self-defense instruction, defense counsel detailed inconsistencies in Crutchfield’s testimony: the shell casing was found in a different location than where Crutchfield testified it was, and both Holland and Toussaint testified Crutchfield was in a different location than Crutchfield testified to when he shot at defendant. From these inconsistencies, trial counsel inferred that Crutchfield was lying in order to cover up his mistaken belief that defendant pointed a gun at him—defendant never pointed a gun at the officer. Defendant’s appellate counsel bolsters this argument by noting that defendant’s wife did not see defendant with a gun in his hand at the beginning of the chase.
“The trial judge had a responsibility to correctly instruct the jury . . . . A judge must instruct on the law applicable to the facts of the case and a defendant has a right to an instruction that pinpoints the theory of the defense [citations]; however, a trial judge must only give those instructions which are supported by substantial evidence. [Citations.] Further, a trial judge has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence. [Citations.]” (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.)
Defense counsel asserted below that the shooting did not constitute one transaction or occurrence, but was instead two shootings that occurred some distance away a couple of seconds apart from each other. Assuming, without deciding, that there were two separate shootings, it was clearly not self-defense when defendant pointed his gun at Officer Crutchfield the first time.
A person is entitled to defend himself against attack when he has an honest and reasonable belief his safety is endangered. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) When defendant pointed the gun at Officer Crutchfield the first time, defendant was not in peril. The state of the evidence was that Crutchfield was running after him and yelling for him to stop. A police officer, yelling at and running after a person, does not constitute a danger.
A trial court has a duty to instruct sua sponte on a defense “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.] Thus, when the trial court believes ‘there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory.’ [Citation.]” (People v. Breverman (1998) 19 Cal.4th 142, 157; see also People v. Gonzales (1999) 74 Cal.App.4th 382, 389.) As defendant never testified at trial, there was no evidence that defendant had an honest and reasonable belief he was in danger and was trying to defend himself against Officer Crutchfield shooting at him. As there was no evidence that defendant was defending himself, defendant was not entitled to a self-defense instruction.
Defendant’s next claim is that the second time he pointed the gun at Officer Crutchfield it was in response to the officer shooting at him, and thus constituted self-defense. We disagree. “It is well established that the ordinary self-defense doctrine . . . may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified.” (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1; see also People v. Minifie (1996) 13 Cal.4th 1055, 1064.) “A quarrel provoked by a defendant, or a danger which he has voluntarily brought upon himself by his own misconduct, is not sufficient to support a reasonable apprehension of imminent danger. [Citation.] ‘In other words, when a defendant seeks or induces the quarrel which leads to the necessity for killing his adversary, the right to stand his ground is not immediately available to him, but, instead, he must first decline to carry on the affray and must honestly endeavor to escape from it.’” (People v. Hill (2005) 131 Cal.App.4th 1089, 1102.) Defendant cannot point his gun at Officer Crutchfield and then claim self-defense when Crutchfield fired in response to the threat.
Moreover, the thrust of the defense’s closing argument was that defendant did not have the specific intent to kill Officer Crutchfield. Rather, his sole intent was to escape the officer’s pursuit. In his closing, defense counsel argued, “By now you know that [defendant] is a former felon, an admitted gang member. You heard about his gang’s activities, that he had a gun, and that he confronted a police officer with one. [¶] From the start, I told you these are undisputed facts. We will concede these facts. These are the facts.” Counsel’s final statement in closing was, “You recall at [the] opening I told you I, too, will be asking you to convict him—and I neglected to tell you of what. But I said I, too, will be asking you to convict Mr. McKinnon. Convict him of assault, assaulting an officer. That’s what he did here.” (Italics added.) Since defendant conceded he assaulted the officer, he cannot now claim he acted in self-defense to an assault he perpetrated.
2. Excessive Force.
Defendant also maintains that the court should have instructed on excessive force as the issue of whether an officer’s conduct is lawful was one for a jury, and not a judge, to decide.
Defendant was charged with assaulting a peace officer with a semiautomatic weapon. (§ 245, subd. (d)(2).) An element of section 245, subdivision (d)(2) is that an officer be engaged in the performance of his duties. (People v. Olguin (1981) 119 Cal.App.3d 29, 44.) If an officer unlawfully detains or arrests a person, he is not in performance of his duties. (Id. at pp. 44-45.)
A legal detention occurs whenever a reasonable person would believe he is not free to leave (In re James D. (1987) 43 Cal.3d 903, 912-913), or when the officer uses force to place an individual under the officer’s control. (In re Manuel G. (1997) 16 Cal.4th 805, 824.) To justify a detention, an officer must have articulable facts that criminal activity is occurring or is about to occur, and the person is involved in that criminal activity. (In re James D., supra, at p. 914.) If a detention is illegal, a detainee may not resist the detention with force or violence unless the officer used excessive (i.e. unreasonable) force to detain the person. (In re Joseph F. (2000) 85 Cal.App.4th 975, 989.)
An officer’s fear for his safety is a factor on which he can reasonably rely, either for investigating further potential criminality or for containing a threat. (People v. Glaser (1995) 11 Cal.4th 354, 364.) “‘An officer’s use of deadly force is reasonable only if “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” [Citations.]’ [Citations.]” (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1103, quoting Tennessee v. Garner (1985) 471 U.S. 1, 3.)
The reasonableness of an officer’s use of force is “judged from the perspective of a reasonable officer on the scene, not by the 20/20 vision of hindsight. The inquiry is an objective one: Was the officer’s action objectively reasonable in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation? [Citation.] It is a pure question of fact whether a police officer used reasonable force in detaining a defendant, so reviewing courts determine if there is sufficient evidence in the record for a reasonable trier of fact to conclude that the force used in effectuating a detention was reasonable. [Citation.]” (In re Joseph F., supra, 85 Cal.App.4th at p. 989.)
First, defendant claims that there was no probable cause to arrest him as the officers only observed him speaking with his wife on a street corner. He ran away and Officer Crutchfield chased him with a gun. He states he had reason to be afraid as Crutchfield fired at him twice and seriously wounded him with the second shot. He claims that it was up to a jury to decide if Crutchfield’s first shot constituted excessive force.
Here, Officer Crutchfield articulated facts showing he reasonably believed that defendant was committing domestic violence when defendant walked angrily toward a woman, while yelling and flailing his arms. The officers drove up in their cruiser to investigate. Toussaint honked the horn to get the couple’s attention. Defendant turned his head toward the officers slightly and said, “Fuck you.” Officer Crutchfield was exiting the patrol vehicle when he said, “Come over here, I want to talk to you.” This constituted a detention.
Defendant responded by running away. Officer Crutchfield saw defendant’s hands go to his waistband and then he disappeared behind a wall. Crutchfield looked over the wall and saw defendant removing a gun from his waistband. Crutchfield’s verbal command to “Come over here,” and his running to the wall to keep defendant in sight did not employ the use of excessive force.
When Officer Crutchfield saw the gun in defendant’s hand, he unholstered his service weapon and jumped over the fence. He gave chase, yelling “Drop the gun.” Crutchfield’s actions of chasing defendant and yelling verbal commands to drop the gun were also not excessive force.
While in the alleyway, defendant turned and pointed the gun at Officer Crutchfield. When Crutchfield saw the barrel pointed at him, he responded to defendant’s threatening action with force. We find this force was reasonable—defendant posed a significant threat of physical injury to the officer or other people in the vicinity. As Crutchfield’s use of force with his first shot was reasonable, and not excessive, there was no evidence supporting the trial court’s giving excessive force instructions.
Accordingly, the trial court did not err in refusing to give the requested instructions on self-defense and excessive force. (See, e.g., In re Joseph F., supra, 85 Cal.App.4th at p. 989-990 [Officer investigating a trespass asked the defendant to stop and when he refused, officer applied an armlock to detain him. The defendant pulled away and a struggle ensued. The officer used reasonable, not excessive force, when defendant refused his requests to stop].) Allowing an arrestee to resist an officer who is using no more than reasonable force would be against public policy. (§ 834a.)
Next, defendant states his position at trial was that the officers initiated the events by rousting and harassing him as a Black man on the street. Defendant’s characterization of the facts is without support in the record. It was the prosecutor, in rebutting defendant’s claim that Officer Crutchfield lied to cover up his mistaken shot, who noted defendant was the aggressor. In explaining it was defendant, and not the “cops,” who initiated the use of force, the prosecutor stated, “It’s not like the officers were rousting him or they were looking for him or they were just trying to harass a [B]lack male that was on the street.” While the public defender disagreed with the prosecutor, he did not cite any testimony or other evidence admitted at trial showing the officers were harassing a Black man. It was not the fact that defendant was Black that caused the officers to stop their patrol vehicle. It was defendant walking towards a woman in an agitated and militant manner, yelling, swinging his arms, and behaving erratically, that caused them to stop to investigate whether a domestic violence incident was occurring.
The trial court was obligated to instruct on excessive force only if it appeared that defendant was relying on the defense, or if there was substantial evidence to support the defenses and the evidence would not have been inconsistent with defendant’s theory of the case. (People v. Gonzales (1999) 74 Cal.App.4th 382, 389.) The same rule applies when determining whether the trial court should have instructed the jury that a police officer’s use of excessive force negates the performance of duty element of the offense of assaulting an officer. (People v. Olguin, supra, 119 Cal.App.3d at pp. 45-46 [viewing instruction that excessive force negates the performance of duty element of the prosecution’s case as part of the self-defense theory; instruction was warranted by the evidence]; People v. White (1980) 101 Cal.app.3d 161, 167 [where the defendant relied on self-defense theory and there was evidence of officer’s excessive force, instruction that officer using excessive force was not performing his duties was required “in the present case”].) As there is no evidence of excessive force presented in the record, we conclude the trial court properly denied defendant’s request for excessive force instructions. (People v. Jackson (1989) 49 Cal.3d 1170, 1193-1194.)
E. There Was Sufficient Evidence to Support the Gang Enhancement for Drug Sales.
Defendant argues that there was insufficient evidence to support either the gang enhancement or the gang charges because the prosecution did not show that the drug sales were committed for the benefit of his gang and to promote criminal conduct by gang members. The substantive offenses were for transportation or sale of controlled substances. There was no evidence that the drug sale proceeds were going to the gang, no one involved in the drug deal mentioned the gang, and the controlled buy did not occur in 1200 Blocc Crips gang territory.
Defendant also complains the gang expert’s opinion that the drug sale benefited the gang was conjectural and based upon circular reasoning: gangs are made up of individuals and what benefits an individual benefits the gang. There was no evidentiary support for this because a former 1200 Blocc Crips gang member testified that dealing drugs was a personal matter and not something the gang told you to do.
“‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations]. ‘Where, as here, the jury’s findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, ‘but our opinion that the circumstances also might reasonably be reconciled with a contrary finding’ does not render the evidence insubstantial.’ [Citation].” (People v. Tafoya (2007) 42 Cal.4th 147, 170.)
It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931.) California law permits a person with “‘“special knowledge, skill, experience, training, or education” in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (Id., § 801).’” (In re Frank S. (2006) 141 Cal.app.4th 1192, 1196.) Based on the totality of the circumstances, the evidence was sufficient to support the jury’s verdict that defendant transported or sold controlled substances for the benefit of his gang.
On July 29, 2003, Officer Miller bought rock cocaine from defendant and defendant ’s drug broker at the intersection of University Avenue and Douglass Street. This is known as the University Corridor. The University Corridor is known as the drug dealing center in the community. The gang expert testified that gang members use the University Corridor for drug sales.
Police identify gang members by their admissions of being a gang member, gang tattoos, clothing, gang colors, congregating with other gang members, gang graffiti listing the roll call of gang members monikers, informant information, intelligence from schools and gang family members, and sighting of gang members inside a gang’s territory.
Gang members hold onto their territory by instilling “respect,” that is, fear, in the community. Individual gang members commit both violent and nonviolent crimes to bolster “respect” in the community with the gang’s fearsome reputation. Nonviolent crimes committed by gangs include drug dealing and grand theft auto.
The gang expert was personally familiar with 90 to 95 percent of the 250 to 300 1200 Blocc Crips gang members. Their territory includes the University Corridor. In July 2003, the Blocc Crips’ primary activities included bank robberies, sales of rock cocaine, and shootings against rival gangs. Selling cocaine on University Avenue was the main revenue generating money for them. When officers conducted drug-buy programs on University Avenue on July 29 and 30, all of the drug dealers that officers bought drugs from belonged to the 1200 Blocc Crips gang.
The expert testified that defendant is a 1200 Blocc Crip member in that he admitted his affiliation to officers several times, he associates with other 1200 Blocc members, and his tattoos advertise his affiliation. Defendant was wearing his gang’s colors during the drug sales: during the first drug sale on July 29, defendant was wearing a blue T-shirt, and on the July 30 drug sale, defendant was wearing a blue tank top.
As the People noted in their brief, “[D]efendant selling the drugs in the open helped the gang by advertising that drugs could be procured in that area from the gang members—just look for the blue shirt.”
Defendant sold the rock cocaine to officers in his gang’s territory on University Avenue. By selling rock cocaine, defendant was engaged in one of the primary income generating activities for his gang. The two drug transactions on July 29 and 30 were reflective of typical 1200 Blocc Crips drug sales: they involved “curb service” which is dealing drugs on the streets, as opposed to selling from a crack house. Sometimes 1200 Blocc Crips members would sell directly to customers; other times they would use a middleman “broker” who himself was an addict and would break off a piece of the rock cocaine as payment for his go-between services.
The 1200 Blocc Crips have a “niche” market—they only sell rock cocaine. Other gangs in the area specialize in other drugs, such as methamphetamine and marijuana sales; they do not sell rock cocaine. 1200 Blocc Crips negotiate their drug deals in full view of the public; in a sense they are a marketing tool so that buyers know where they can purchase rock cocaine from the 1200 Blocc Crips gang. This helps to increase drug sales. For example, the middleman knew defendant was selling because he recognized his “homeboy,” wearing blue in a nearby car, who had drugs on him. This enabled him to put customers in touch with drug suppliers.
The expert opined that profits from defendant’s drug sales on July 29 and 30 benefited the 1200 Blocc Crips because these drug sale transactions were income sources for the gang. The money generated by these sales allowed gang members to buy food, shelter, and guns.
On those dates, defendant sold rock cocaine to the officer, not another type of drug. Defendant acknowledged the gang’s collective sales effort by telling the officer “they remembered [him], they took care of [him] the day before just up the street.” The narcotics officer bought the same type of drug in the same University Avenue locale that the 1200 Blocc Crips work drug deals.
Based on this evidence, the expert witness opined that defendant’s July 29 and 30th rock cocaine sales to the uncover narcotics officer were for the benefit of his gang. Given the totality of the circumstances, we conclude the evidence was sufficient for a reasonable jury to find defendant guilty of selling rock cocaine to benefit a gang.
E. Defense Counsel Conceded That CALJIC No. 6.50, and Not Judicial Council of California Criminal Jury Instruction, CALCRIM No. 1400, Was a Correct Statement of Law.
Defendant contends that the trial court erroneously used CALJIC No. 6.50 (Gang Crime) to instruct the jury on the section 186.22, subdivision (a) substantive gang offense. He complains that the trial court should have used Judicial Council of California Criminal Jury Instruction (2007-2008), CALCRIM No. 1400 instead, as originally agreed to by the parties. He states that because there was no direct evidence linking his drug sales to the gang, there was no proof of his intention to promote gang activity, so instructing on the aiding and abetting element was necessary to satisfy due process. We disagree.
In delineating the elements of section 186.22, subdivision (a) substantive gang crime, CALCRIM No. 1400 provides in part:
“To prove that he defendant is guilty of this crime, the People must prove that:
“1. The defendant actively participated in a criminal street gang;
“2. When the defendant participated in the gang, he knew that members of the gang engage in or have engaged in a pattern of criminal gang activity;
“AND
“3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang.”
CALCRIM No. 1400 goes on to explain what it is to willfully assist, further, or promote:
“To prove that the defendant willfully assisted, furthered, or promoted a crime, the People must prove that:
“1. A member of the gang committed the crime;
“2. The defendant knew that the gang member intended to commit the crime;
“3. Before or during the commission of the crime, the defendant intended to aid and abet the gang member in committing the crime;
“AND
“4. The defendant’s words or conduct did in fact aid and abet the commission of the crime.”
When the parties were discussing with the court which jury instruction to use, the court stated its intention to use CALJIC No. 6.50 in lieu of CALCRIM No. 1400. CALJIC No. 6.50 states that a person could either directly and actively commit the charged crime or could aid and abet another gang member in committing the charged crime. CALCRIM No. 1400 states that a defendant has to aid and abet the underlying crime. The trial court stated CALJIC 6.50 correctly sets out the law because it states that a defendant could directly commit or aid and abet the charged crime, whereas CALCRIM No. 1400 states that a defendant must always be shown to have aided or abetted the crime.
Defense counsel objected to the trial court’s use of CALJIC No. 6.50 in lieu of CALCRIM No. 1400. However, he went on to acknowledge that criminal liability for gang activities is not limited to only aider and abettors, but also attaches to direct perpetrators of the crime. This, in essence, is an agreement with the trial court’s view of the law that both aiders and abettors as well as direct perpetrators who commit felonies to assist, further, or promote a gang are guilty of the substantive gang crime.
Both the trial court and defense counsel correctly articulated the applicable law. (People v. Ngoun (2001) 88 Cal.App.4th 432, 435-436, 437; People v. Castenada (2000) 23 Cal.4th 743, 749-750.) The sole issue here was whether defendant “directly and actively” committed the drug sales to assist, further, or promote the gang. The issue was not whether defendant aided and abetted the drug sales to promote the gang. Consequently, using the correct statement of law in CALJIC No. 6.50 and eschewing CALCRIM No. 1400 was correct.
Defense counsel’s main objection below was that a substantive gang crime instruction should not be given because there was insufficient evidence that defendant sold the drugs to benefit the gang, rather than for his own personal lucre. As we have previously concluded there was sufficient evidence that defendant sold drugs to promote the gang, we find that the instruction was properly given.
G. The Sentences for Counts 3 and 4 Must Be Stayed Pursuant to Section 654.
Defendant asserts that the gang enhancements on the drug transportation/sale counts (counts 1 and 2) were based on the same conduct and objectives as the substantive street terrorism charges in counts 3 and 4. He argues that his sentences for both the section 186.22, subdivision (b) enhancements and the section 186.22, subdivision (a) substantive offense violated section 654 double punishment prohibition. We agree.
Section 654 provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one . . . .” It prohibits multiple punishments for a single criminal act, or indivisible course of criminal conduct, that violates more than one criminal law. (People v. Latimer (1993) 5 Cal.4th 1203, 1208, citing Neal v. State of California (1960) 55 Cal.2d 11, 18.) “Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)
“‘Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.’ [Citations.] ‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]” [Citation.]’ [Citations.] However, if the defendant harbored ‘multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’ [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) If, however, a defendant “entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished 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.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)
A trial court decides whether criminal acts had one or multiple objectives. “The question is one of fact, and if the trial court’s conclusion is supported by substantial evidence it is upheld on appeal.” (People v. Osband (1996) 13 Cal.4th 622, 730-731.) Where the trial court does not make an express finding, an implied finding that the crimes were divisible must be upheld if supported by the evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
“Section 654 precludes multiple punishments for a single act or indivisible course of conduct.” (People v. Hester (2000) 22 Ca.4th 290, 294.) A court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654. (Hester, supra, at p. 295.) Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. (Hester, supra, at p. 295.)
“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” (People v. Jones, supra, 103 Cal.App.4th at p. 1143.)
The substantive gang offenses and the gang enhancements arise from the same course of conduct—the sale of rock cocaine for the benefit of defendant’s gang. Thus, the substantive gang counts (counts 3 and 4) should be stayed pursuant to section 654.
The case of People v. Ferraez (2003) 112 Cal.App.4th 925 is distinguishable. In Ferraez, the defendant was found guilty of possessing cocaine base for sale, a gang enhancement that the possession charge benefited a street gang and a substantive gang offense. The trial court sentenced defendant on the possession offense and the substantive gang offense but stayed the gang allegation. (Id. at pp. 927-928.) The reviewing court rejected defendant’s claim that the substantive gang offense should also have been stayed because the defendant had independent intents in committing the two substantive offenses—in the possession-to-sell charge, the intent was to sell drugs and in the substantive gang charge, the intent was to promote or assist the gang. (Id. at p. 935.) Here, both the substantive gang charge and the gang enhancement were imposed, unlike Ferraez where only the substantive gang charge, and not the enhancement, was imposed.
The People urge us that People v. Herrera (1999) 70 Cal.App.4th 1456, 1465-1468 is similar to this case because defendant’s convictions for gang-enhanced drug sales elevates his punishment due to the seriousness of the drug sales, whereas the substantive gang offense reflects defendant’s active participation in the 1200 Blocc Crips. However, in this case the jury instruction for the substantive gang crime asked the jury to find if defendant directly or actively committed or aided and abetted another member of the gang in committing the sale of a controlled substance. The instruction for the gang enhancement asked the jury whether one of the gang’s primary activities was the sale of controlled substances. As the jury found defendant guilty of the substantive offense and found true the gang allegation, it found defendant aided the gang (§ 186.22, subd. (a)) and benefited the gang (§186.22, subd. (b)) by selling rock cocaine. Since the drug-selling transactions were the operative act of participating in the gang, we conclude that the sentence for the same transaction and occurrence can only be imposed once. Consequently, we order the concurrent two-year midterm sentences for section 186.22, subdivision (a) offenses in count 3 and count 4 be stayed.
M. Cumulative Error
Defendant asserts that reversal is required due to cumulative errors in the attempted murder case which deprived him of a fair trial. Other than the sentencing error, there were no substantive errors to accrue. Therefore, we reject defendant’s argument that cumulative error deprived him of a fair trial or warrants reversal of the verdict in whole or in part. Defendants are entitled to a fair trial, not a perfect one. (People v. Houston (2005) 130 Cal.App.4th 279, 320.)
DISPOSITION
The trial court is directed to stay the concurrent two-year midterm sentences for the section 186.22, subdivision (a) offenses in counts 3 and 4. The trial court is also directed to amend the abstract of judgment so as to reflect the modification and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
We concur: HOLLENHORST Acting P.J., McKINSTER J.