Opinion
G043895
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. CESAR GERARDO MURO, Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 08NF0364)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed in part, reversed in part and remanded with directions.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Cesar Gerardo Muro of one count each of attempted murder (Pen. Code, § 187, subd. (a) [count 1]), assault with a semiautomatic firearm (§ 245, subd. (b) [count 2]), possession of a firearm by a felon (§ 12021, subd. (a)(1) [count 3]), and street terrorism (§ 186.22, subd. (a) (section 186.22(a)) [count 4]). The jury found true several enhancement allegations, including the allegation Muro committed counts 1, 2, and 3 to benefit a criminal street gang. (§ 186.22, subd. (b)(1) (section 186.22(b)(1)).) The trial court sentenced Muro to 54 years to life in prison.
Further code citations are to the Penal Code.
We conclude (1) substantial evidence supported a finding Muro did not act in imperfect self-defense; (2) the jury was correctly instructed on issues of malice and attempted voluntary manslaughter, and any error by the trial court in failing to give an excessive force/attempted voluntary manslaughter instruction was harmless; (3) substantial evidence supported Muro's conviction for street terrorism under section 186.22(a); (4) substantial evidence supported the jury's true finding on the gang enhancement allegation under section 186.22(b)(1); and (5) the trial court erred by not staying execution of sentence on count 4 pursuant to section 654.
Accordingly, we direct the trial court to modify the judgment to stay execution of sentence on count 4 and in all other respects affirm.
FACTS
We view the evidence in the light most favorable to the jury's verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)
I.
Events Leading to Shooting
Muro, a convicted felon, is a member of a gang called Anaheim Vatos Locos (AVLS) and has the moniker "Lil Man."
Sometime in early December 2007, Ronald Santamaria noticed Muro had moved into a house down the street from Santamaria's home in the City of Anaheim. Whenever Santamaria and his younger brother, Bryan, drove home, they would pass Muro's home. Santamaria noticed that Muro, his younger cousin, and "some other guy" would "mad dog[]" Santamaria and his brother each time they passed Muro's home. Santamaria testified that "[m]ad dogging means they won't lose sight of me until they saw me pass."
On December 12, 2007, Santamaria, fed up with the "mad dogging," got out of his car, approached Muro, and confronted him about the stares. Santamaria told Muro, "if he had something then we could end it right there." Muro responded: "[G]et off my face, you're disrespecting me. This is my hood. This is my property here. Get away from here. I'll catch you. I'll catch you at the rebounce." Santamaria asked, "why don't we just fight and end it right there?" Muro repeated his earlier threats to catch Santamaria on the "rebounce." Muro's aunt came outside and interrupted the exchange by asking Santamaria, "what the f [he] was doing there" and telling him it "wasn't [his] hood."
Santamaria decided to leave, and, as he walked to his car, noticed Muro had picked up a brick. Santamaria asked, "now that I have my back towards you[,] you're getting a brick?" In response, Muro repeatedly told Santamaria to "[g]et out of here, catch you at the rebounce. This is not your property. You're disrespecting [me]." Realizing Muro was not going to throw the brick, Santamaria returned to his car and drove home.
II.
Muro Attempts to Kill Santamaria
The following day, December 13, 2007, at about 3:30 in the afternoon, as Santamaria was walking with his younger sister and brother, he saw Muro across the street, walking with his cousin and another man. Muro walked into his home, passing Santamaria without saying anything to him. When Santamaria was two houses away from his own home, he turned and saw Muro outside, throwing what Santamaria thought were gang signs. Santamaria ordered his siblings to go inside their house, and they complied.
Muro told Santamaria to wait, and, as Santamaria stood outside, went back into his house. Muro came out of the house and walked toward Santamaria with "his hand inside his pockets and lifting up his shorts." Muro stopped and paced, waiting for Santamaria to approach. Santamaria told him, "I'm not going to go. You come." Santamaria did not have any weapons on him and assumed there would be a fistfight.
Muro turned and started walking back to his home. Just then, three of Santamaria's friends, Christian Aguilar, Israel Aguilar, and Anai Ortigoza, drove up in a car. As Santamaria approached the car to greet his friends, he saw Muro pull out a gun and point it at him. Santamaria froze. Muro fired one shot that missed Santamaria. When Muro saw that Santamaria was still standing, he fired again. Two shots hit the car and one hit Santamaria in the leg.
Muro ran into his house. About 20 minutes later, a white car briefly stopped in front of Muro's house, then quickly left.
Police officers arrived and questioned Santamaria before he was taken to the hospital. The treating physicians decided not remove the bullet, which was lodged in Santamaria's leg bone. Santamaria remained in the hospital for a week and wore a cast on his leg for three months. He was in pain for about two months, missed school during that period, and was still in pain and had a limp when testifying at trial.
Santamaria described Muro for the police officers, picked Muro out of a photo lineup, and told them he saw Muro run back into his home after the shooting. Santamaria also told the police officers that about 20 minutes after the shooting, he saw an older model white Toyota Camry stop in front of the house, stay for a minute and a half, then drive off.
At the scene, the police officers found three nine-millimeter casings in the street. They searched Muro's home and, in Muro's bedroom, found photographs of Muro with other gang members throwing gang signs and a letter from him to another gang member saying he was "posted up" in the neighborhood. In the backyard, the officers found the gun used by Muro, along with a bandana, behind a piece of plywood. The gun was fully loaded when it was found. Two doors in the backyard, one lying against a shed and one lying on the ground, had gang graffiti markings on them.
Muro was apprehended seven months after the shooting after he barricaded himself in an apartment.
III.
Expert Testimony on Gang Culture
At trial, two police officers working for the Anaheim Police Department gang unit, detective Rodriguez and investigator Phillips, testified on gang culture in general and the AVLS gang in particular. Rodriguez testified he had seen AVLS graffiti in the area of the shooting, where AVLS members would associate. Phillips testified graffiti and tattoos are important ways for gang members to intimidate local residents, and gang tattoos were a way for gang members to display their gang affiliation.
Based on several factors, including Muro's admission of gang membership, Phillips testified Muro was an active member of AVLS when he committed the crimes charged. Presented with a hypothetical set of facts mirroring those of this case, Phillips testified the shooting would benefit and promote the gang by garnering it greater respect, enhancing its reputation for violence, and expanding its sphere of influence.
Muro had been issued two California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.) (STEP) notices and admitted to being a member of AVLS in February of 2004. Phillips explained STEP notices were a method of notifying someone that the organization he or she is spending time with is considered a criminal street gang. When a police officer gives someone a STEP notice, the officer reads the definition of a criminal street gang found in the Penal Code, lists the primary activities of street gangs, and asks the person to sign the notice. In addition to Muro's STEP notices and admission in 2004, police officers found pictures and a letter in Muro's residence; the pictures were taken of Muro with admitted members of AVLS and depicted several of the members creating ALVS hand signs while the letter was signed by Muro and dated two days before the shooting. The letter stated, "I got the hood blasted. Get at you soon. Your homey, AVSR Lil Man."
Phillips explained some of Muro's purported actions were connected with gang culture; gang hand signs are a way for a gang member to represent his or her gang, "mad dogging" is a challenge to let the person know that you are disrespecting them and want a confrontation with them, and one of the important methods for gangs to gain respect is by intimidating people, which can be accomplished by committing violence and demonstrating the gang member is willing to commit violence. Phillips testified a person would "[a]bsolutely" lose respect by being confronted with violence and backing away from it and Muro's actions would have benefitted the gang by earning it more respect.
DISCUSSION
I.
Imperfect Self-defense
Muro argues the evidence was insufficient to prove attempted murder because the prosecution did not meet its burden of proving beyond a reasonable doubt he did not commit the shooting in imperfect self-defense. As a result, Muro argues, his conviction must be reduced to attempted manslaughter. We conclude substantial evidence supported a finding of malice necessary to convict Muro of attempted murder.
"Imperfect self-defense is the actual, but unreasonable, belief in the need to resort to self-defense to protect oneself from imminent peril. [Citations.] When imperfect self-defense applies, it reduces a homicide from murder to voluntary manslaughter because the killing lacks malice aforethought. [Citations.]" (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1178.) " Imperfect self-defense obviates malice because that most culpable of mental states 'cannot coexist' with an actual belief that the lethal act was necessary to avoid one's own death or serious injury at the victim's hand. [Citations.]" (People v. Rios (2000) 23 Cal.4th 450, 461; see People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) Here, the jury was instructed on imperfect self-defense and attempted voluntary manslaughter.
The prosecution has the burden of proof on the issue of imperfect self-defense. (People v. Rios, supra, 23 Cal.4th at p. 462; see also CALCRIM No. 571.) The test on appeal, however, is whether substantial evidence supported the verdict, not whether the evidence proved guilt beyond a reasonable doubt. (People v. Wright (1985)39 Cal.3d 576, 592.) In assessing the sufficiency of the evidence, we review the record in the light most favorable to the judgment, draw all reasonable inferences in its favor, and determine whether the judgment contains substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294; People v. Manriquez (2005) 37 Cal.4th 547, 576.) Substantial evidence means evidence which is reasonable, credible, and of solid value. (People v. Gonzales and Soliz, supra, at p. 294.)
Santamaria's testimony decisively disproved imperfect self-defense. Santamaria testified that, as he walked home with his siblings on December 13, 2007, he saw Muro step outside of his house and make what appeared to be gang signs. Santamaria concluded Muro had "manned up" and wanted to engage in a fistfight. Muro told Santamaria, who gave no indication of being armed, to wait. Muro then went inside his house to get a gun. He emerged about five minutes later and walked toward Santamaria with his hand inside of his pockets as though he was holding a gun. Santamaria thought Muro perhaps had an air gun, not "a real gun," and did not call his friends for support. Muro stopped about two houses down from where Santamaria was standing and called for him to come. Santamaria, who was standing outside of his own house, told Muro to come to him. For about five minutes, Muro and Santamaria yelled back and forth, each calling to the other to come to him. Nothing stopped Muro from walking back inside his house and staying there.
Santamaria testified that at this point his three friends drove up and parked. If Muro believed Santamaria's friends had arrived to provide support, he could have left the scene and walked back inside his house. Instead, as Santamaria walked to the street to meet his friends, Muro turned around, walked directly toward him, and, stopping near a fire hydrant, pulled out a gun and pointed it toward Santamaria, who froze. Santamaria did nothing that could have led Muro to believe he was in peril. Muro pointed the gun at Santamaria for about a minute before firing once. When Muro realized Santamaria was still standing, he fired at least four more shots. Only when Santamaria fell did Muro stop firing the gun.
Santamaria's friends had just pulled up and Ortigoza testified they did not have time to correctly park the car before Muro fired. Ortigoza testified he and his friends ducked when they heard the gunshot.
Muro's conduct at every step was inconsistent with an actual belief that "the lethal act was necessary to avoid one's own death or serious injury at the victim's hand." (People v. Rios, supra, 23 Cal.4th at p. 461.) Substantial evidence supported a finding Muro did not act in imperfect self-defense but with malice aforethought.
II.
Excessive Force Instruction
Muro argues his attempted murder conviction should be reversed because the trial court did not instruct the jury on "attempted voluntary manslaughter by use of excessive force in self-defense." As attempted voluntary manslaughter is a lesser included offense of attempted murder, Muro argues the trial court had a sua sponte duty to give such an instruction. We conclude the jury was correctly instructed and any error in failing to give an excessive force/attempted voluntary manslaughter instruction was harmless.
The trial court in this case instructed the jury on both lawful (complete) self-defense and imperfect self-defense. The lawful self-defense instruction read, in relevant part: "Self-defense is a defense to attempted murder, attempted voluntary manslaughter, assault with a semi-automatic firearm, and possession of a firearm by felon. The defendant is not guilty of those crimes if he used force against the other person in lawful self-defense." The instruction then listed the requirements of lawful self-defense, including "[t]he defendant used no more force than was reasonably necessary to defend against that danger." As to both self-defense and imperfect self-defense, the court instructed: "The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense." The court also instructed the jury: "The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty of attempted murder, attempted voluntary manslaughter, assault with a semi-automatic firearm, or possession of firearm by felon."
The self-defense doctrine applies when a defendant reasonably believes his or her safety is in danger. (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) A homicide committed in self-defense is deemed justifiable and not unlawful. (§ 197; see CALCRIM No. 505.) "However, any right of self-defense is limited to the use of such force as is reasonable under the circumstances," and "[t]he right of self-defense did not provide defendant with any justification or excuse for using deadly force to repel a nonlethal attack." (People v. Pinholster (1992) 1 Cal.4th 865, 966, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 458-459.) The issue, as yet unresolved by the California Supreme Court, is whether use of excessive force entirely negates self-defense, thereby justifying a conviction for murder or attempted murder, or whether use of excessive force reduces murder or attempted murder to voluntary manslaughter or attempted voluntary manslaughter.
Muro's theory is use of excessive force in self-defense may reduce murder to voluntary manslaughter if the defendant did not intend to kill the victim. Muro bases his theory on two Court of Appeal cases, People v. Clark (1982) 130 Cal.App.3d 371 (Clark) and People v. Welch (1982) 137 Cal.App.3d 834 (Welch). In Clark, supra, 130 Cal.App.3d at page 375, the defendant challenged his conviction for involuntary manslaughter on the ground he acted in self-defense as a matter of law. The Court of Appeal concluded that although the defendant had the right to defend himself against attack by the victim, the defendant used excessive force by using a gun, and therefore affirmed the conviction for involuntary manslaughter. (Id. at p. 380.) In a passage relied on by Muro, the court stated: "The principles of self-defense are founded in the doctrine of necessity. This foundation gives rise to two closely related rules which are applicable in this case. First, only that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified. [Citation.] Second, deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury; thus '[a] misdemeanor assault must be suffered without the privilege of retaliating with deadly force.' [Citations.] Under these two principles a person may be found guilty of unlawful homicide even where the evidence establishes the right of self-defense if the jury finds that the nature of the attack did not justify the resort to deadly force or that the force used exceeded that which was reasonably necessary to repel the attack." (Ibid., italics added.)
The defendant in Welch, supra, 137 Cal.App.3d 834 was convicted of voluntary manslaughter after using excessive force in repelling the victim's attack. The defendant argued on appeal the trial court erred by failing to give an instruction on involuntary manslaughter. (Id. at p. 837.) The Court of Appeal agreed and reversed the conviction. (Id. at p. 841.) The court explained the basic distinction between voluntary and involuntary manslaughter is that voluntary manslaughter requires an intent to kill, while involuntary manslaughter does not. (Id. at pp. 839-840.) The court stated: "In the instant case there is substantial evidence from which a jury could conclude that the defendant did not intend to kill [the victim] when he discharged his weapon. The evidence was uncontradicted that [the victim] was the aggressor at all times prior to being shot by the defendant. . . . The jury could reasonably believe that defendant's actions were taken in self-defense compelled by fear of great bodily harm or death. If such were the case, a conviction for involuntary manslaughter would be appropriate where the jury finds that the nature of the attack did not justify the resort to deadly force in self-defense or that the force used in self-defense exceeded that which was reasonably necessary to repel the attack." (Id. at p. 840.)
In People v. Blakeley (2000) 23 Cal.4th 82, 90-91, the Supreme Court rejected the notion that imperfect self-defense or use of excessive force may result, at most, in a conviction for involuntary manslaughter. After discussing Welch and People v. Glenn (1991) 229 Cal.App.3d 1461, the court concluded: "In neither People v. Glenn . . . nor . . . Welch . . . , did the Court of Appeal engage in any analysis or cite any authority in support of its conclusion that an unintentional killing in unreasonable self-defense can only be involuntary manslaughter. Thus, neither case is persuasive authority for the proposition that intent to kill is necessary for a voluntary manslaughter conviction. For the reasons given earlier, we conclude that when a defendant, acting with a conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary rather than involuntary manslaughter." (People v. Blakeley, supra, at p. 91.) In the next paragraph of the opinion, the court concluded, "a defendant who, with the intent to kill or with conscious disregard for life, unlawfully kills in unreasonable self-defense is guilty of voluntary manslaughter." (Ibid.; see also People v. Stitely (2005) 35 Cal.4th 514, 551 ["An unlawful killing involving either an intent to kill or a conscious disregard for life constitutes voluntary manslaughter, rather than murder, when the defendant acts upon an actual but unreasonable belief in the need for self-defense"].)
In People v. Mayfield (1997) 14 Cal.4th 668, 777 (Mayfield), the defendant, who was convicted of the first degree murder of a police officer, argued the trial court erred by failing to instruct the jury that "if a person uses unreasonable or excessive force in response to an officer's use of unreasonable or excessive force, a killing that results is without malice and at most voluntary manslaughter." In response, the California Supreme Court stated: "[M]alice is negated in this situation only if the defendant honestly but unreasonably believed that the degree of force used was in fact necessary. Absent such a belief, a person's use of excessive force in response to an officer's use of excessive force does not negate malice." (Ibid.) The court concluded the instruction on unreasonable self-defense was sufficient to inform the jury it would have been required to find the defendant had acted without malice if it concluded he killed the officer by the use of excessive force in the honest but unreasonable belief that the amount of force used was necessary. (Id. at pp. 777-778.)
The Attorney General cites Mayfield for the proposition a defendant's use of excessive force does not negate malice. The opinion states, however, malice is negated if the defendant honestly but unreasonably believed the degree of force used was necessary. (Mayfield, supra, 14 Cal.4th at p. 777.)
From these cases, several principles can be gleaned. First, when a defendant, acting with a conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is neither murder nor involuntary manslaughter: it is voluntary manslaughter. Second, use of excessive force in self-defense negates malice required for murder if the defendant honestly but unreasonably believed the degree of force used was necessary. Finally, Mayfield concludes the standard instruction on imperfect self-defense is sufficient, at least as to that defense, to inform a jury it may find a defendant acted without malice by using excessive force if the defendant honestly but unreasonably believed the degree of force was necessary.
Here, the jury was instructed a requirement for imperfect self-defense was "[t]he defendant believed that the immediate use of deadly force was necessary to defend against the danger." Under the facts of this case, that instruction was sufficient to inform the jury it could find Muro's use of excessive force did not negate imperfect self-defense if Muro honestly believed deadly force was necessary.
The jury in this case also was instructed lawful self-defense is a complete defense to the crimes charged, a requirement for lawful self-defense is the defendant did not use excessive force, and "[i]f the defendant used more force than was reasonable, the defendant did not act in lawful self-defense." For lawful self-defense, the jury was not given the option of convicting Muro of voluntary manslaughter by finding he used excessive force but honestly believed the degree of force used was necessary.
We do not decide whether the trial court should have given an excessive force/attempted voluntary manslaughter instruction because any error in not giving such an instruction was harmless. The standard of People v. Watson (1956) 46 Cal.2d 818 is applicable to the failure to give a lesser included offense instruction. (People v. Breverman (1998) 19 Cal.4th 142, 149.) We must determine whether a result more favorable to Muro would have been "reasonably probable" if the trial court had instructed the jury it could find Muro guilty of voluntary manslaughter if he used excessive force in justifiable self-defense. (People v. Watson, supra, at p. 836.)
A result more favorable to Muro was not reasonably probable because the jury almost certainly did not find Muro acted in self-defense. The evidence overwhelmingly established Muro was the aggressor and Santamaria did nothing to lead Muro to believe he was in imminent danger of suffering bodily injury. Assuming Santamaria instigated the dispute, Muro was across the street by his own house when Santamaria challenged him to a fistfight. Muro told Santamaria to wait while he went inside his house, where Muro could have stayed in safety if he indeed believed he was in danger. Instead, Muro returned with a gun. No evidence suggested Muro was in imminent danger as he walked with his gun toward the unarmed Santamaria, stopped, aimed the gun for a minute, then shot him.
Even if the jury found Muro reasonably believed he was in imminent danger, it was not reasonably probable the jury would have found he used no more force than was necessary to defend against that danger. Muro brought a gun to a fistfight. Santamaria was unarmed and gave no indication of being armed. Santamaria froze for a minute while Muro aimed the gun at him. There was no evidence Santamaria's friends were a threat before Muro started shooting.
III.
Substantive Gang Offense
Section 186.22(a) imposes punishment when an active gang participant "willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang." In committing the substantive offenses of attempted murder, assault with a semiautomatic firearm, and possession of a firearm by a felon, Muro acted alone. He did not aid and abet a perpetrator nor did anyone aid and abet him in committing the offenses. He argues the evidence does not support his conviction for street terrorism under section 186.22(a) because, by acting alone, he did not promote, further, or assist in felonious criminal conduct by gang members.
We reject that argument. In People v. Gonzales (Aug. 26, 2011, G043384) __ Cal.App.4th _, __ [2011 Cal.App. Lexis 1196, *21], we concluded: "[S]omeone can 'promote' or 'further' felonious criminal conduct by acting alone, without assistance or participation by others. The Legislature surely did not intend for an active gang participant committing a felony alone to be punished less harshly than an active gang participant assisting such felonious conduct."
IV.
Gang Enhancement
Muro argues the evidence was insufficient to support the gang enhancement under section 186.22(b)(1) which states, in relevant part: "[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished."
The enhancement under section 186.22(b)(1) has two prongs. The first prong is the defendant's conviction "of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang"; that is, the crime was gang related. (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).) The second prong is the defendant committed the crime "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22(b)(1).) The enhancement does not require the defendant acted with specific intent to promote, further, or assist a gang; "the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." (Albillar, supra, at p. 67.)
As to the first prong, Muro argues substantial evidence did not support a finding the crime was gang related because he acted alone and Santamaria was not a gang member. Instead, Muro argues, the crime resulted from a dispute between neighbors that escalated into a shooting. We disagree.
In this case, Muro was unquestionably a member of the criminal street gang, AVLS. A letter found in Muro's bedroom said Muro was "posted up" in the neighborhood. According to the gang expert, the term "posted up" means the gang member is "going to stand at a certain location in the neighborhood, keep an eye out, represent the gang, let people know when the cops come, pay attention . . . if rivals are coming into the neighborhood as well as let people in the neighborhood know that you're out there." Before shooting, Muro threw gang signs at Santamaria. During their first encounter, Muro told Santamaria, "you're disrespecting me" and "[t]his is my hood." In a letter signed two days earlier, Muro wrote, "I got the hood blasted." Given hypothetical facts mirroring the facts of this case, a gang expert testified Muro's crime benefitted the gang: "[G]angs earn respect by committing violence, especially committing violence blatantly and be willing to do it out in the open. [¶] In this case, the individual was disrespected. He needed to go get his respect back. He committed a violent act in broad daylight on a residential street. That word will get around and the gang will earn respect from other gangs because a member of their gang was willing to do that crime." Once the word about the crime got out, "[t]hat gang then will have more sphere of influence over their own neighborhood because people are going to be talking about the fact that it occurred."
From this evidence, the jury could draw the inference Muro committed attempted murder for the benefit of the criminal street gang AVLS. By attempting to kill Santamaria, Muro was enhancing the gang's reputation for violence and earning the gang respect from other gangs.
Albillar, supra, 51 Cal.4th 47, supports our conclusion. In that case, gang members raped the victim in her apartment. (Id. at p. 52.) The Supreme Court upheld their convictions for forcible rape and participation in a criminal street gang, and the jury's true finding on the gang enhancement under section 186.22(b)(1). (Albillar, supra, at pp. 50-51.) The court rejected the defendants' argument the sex crimes were not committed for the benefit of, at the direction of, or in association with a criminal street gang. (Id. at p. 59.) The court concluded: "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22(b)(1). [Citations.]" (Id. at p. 63.)
Muro argues Albillar is distinguishable because in that case the gang members committed the crimes in reliance on "the apparatus of the gang," and an expert testified that committing crimes with other gang members enhances each gang member's status and bonds within the gang would prevent a gang member from "ratting on" the other gang members to the police. It is true that Muro acted alone, but that is not a meaningful distinction. The relevant point to be drawn from Albillar regarding the first prong of section 186.22(b)(1) is that a crime committed in private and not directly related to the gang's activities may benefit the gang by enhancing its reputation for violence and viciousness. Although Muro acted alone, he tried to kill Santamaria in the open, in broad daylight, while acting as the gang representative and scout, so as to broadcast to the neighborhood Muro's and AVLS's violent nature, and thus to enhance AVLS's reputation for violence.
Muro argues substantial evidence did not support the second prong under section 186.22(b)(1) because there was no evidence he committed the offense to promote, further, or assist the criminal conduct of a gang. Section 186.22(b)(1) refers to criminal conduct by gang members, not criminal conduct of a gang. In Albillar, supra, 51 Cal.4th at page 66, the court concluded section 186.22(b)(1) requires the specific intent to promote, further, or assist in any criminal conduct by gang members, including the offense sought to be enhanced.
Muro also argues substantial evidence did not support the second prong because he acted alone. In People v. Gonzales, supra,_Cal.App.4th at page_[2011 Cal.App. Lexis at page *28], we concluded the enhancement under section 186.22(b)(1), as the substantive offense under section 186.22(a), can apply when the defendant acts alone.
V.
Stay of Execution of Sentence on Count 4
Muro argues execution of his sentence for street terrorism in violation of section 186.22(a) (count 4) should have been stayed under section 654. We agree.
Section 654, subdivision (a) reads in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 prohibits multiple sentences where (1) the defendant commits a single act or omission that violates more than one statute, or (2) the defendant commits different acts that violate different statutes "but the acts comprise an indivisible course of conduct with a single intent and objective." (People v. Garcia (2007) 153 Cal.App.4th 1499, 1514; see also Neal v. State of California (1960) 55 Cal.2d 11, 19-20.)
The purpose of section 654 is to "prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense—the one carrying the highest punishment." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
The first question presented by section 654 is whether Muro committed a single criminal act or committed different acts comprising an indivisible course of criminal conduct. "'If only a single act is charged as the basis of the multiple convictions, only one conviction can be affirmed, notwithstanding that the offenses are not necessarily included offenses. It is the singleness of the act and not of the offense that is determinative.' Thus the act of placing a bomb into an automobile to kill the owner may form the basis for a conviction of attempted murder, or assault with intent to kill, or malicious use of explosives. Insofar as only a single act is charged as the basis for the conviction, however, the defendant can be punished only once." (Neal v. State of California, supra, 55 Cal.2d at p. 19.)
We conclude Muro engaged in a single act: He attempted to murder Santamaria by shooting a gun at him. Under section 654, the trial court should have stayed execution of sentence on count 4.
DISPOSITION
We remand with directions to the trial court to modify the judgment to stay execution of sentence on count 4, to prepare an amended abstract of judgment, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
O'LEARY, J.