Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. LA060052 Barry A. Taylor, Judge.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant Armando Nolasco.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant Alfredo Nolasco.
Edmund G. Brown, Jr., Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P. J.
Armando Nolasco (Armando) and Alfredo Nolasco (Alfredo) appeal from the judgments entered upon their convictions by jury of felony vandalism causing more than $400 in damage (Pen. Code, § 594, subd. (a), count 6), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1), count 8). Armando also appeals his convictions of three counts of attempted murder (§§ 664, 187, subd. (a), counts 1-3), one count of shooting at an occupied motor vehicle (§ 246, count 4), and one count of assault with a firearm (§ 245, subd. (a)(2), count 5). With respect to Armando, the jury found to be true in connection with counts 1 through 3 the firearm allegations within the meaning of section 12022.53, subdivisions (b) and (c), with respect to counts 1 through 3, and 5, the personal use of a firearm within the meaning of section 12022.5, subdivision (a), and in connection with count 4 that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1). The jury also found to be true as to Armando the gang allegation within the meaning of section 186.22, subdivision (b)(1)(C) in counts 1, 2, 3, and 5, and subdivision (b)(4) in count 4, and, as to both appellants, subdivision (b)(1)(A) in count 6 and subdivision (b)(1)(B) in count 8. The trial court sentenced Armando to an aggregate prison term of 57 years 8 months and a concurrent indeterminate term of 15 years to life and Alfredo to an aggregate prison term of 8 years.
All further statutory references are to the Penal Code unless otherwise indicated.
On the People’s motion, the trial court dismissed counts 9 and 10 for assault and battery (§ 242). Armando was acquitted of count 7 for assault by means likely to cause great bodily injury, and Alfredo was acquitted of counts 4, 5, and 7. Alfredo was not charged on counts 1 through 3.
Armando contends that (1) there is insufficient evidence (a) to support a finding that any of the offenses were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members, (b) to establish a pattern of criminal activity by the Radford Street gang, or (c) to support his conviction of vandalism causing more than $400 damage; (2) the trial court erred in permitting the prosecutor to read to the jury a witness’s out of court hearsay statements; (3) cumulative errors deprived him of his due process right to a fair trial; and (4) his presentence credits must be increased by 81 days. Alfredo contends that (5) the five-year gang enhancement imposed on count 8 is unauthorized and must be stricken, and (6) the sentence on count 6 is double punishment to count 8 and must therefore be stayed pursuant to section 654.
To the extent applicable to him, Armando joins in the contentions of Alfredo. (Cal. Rules of Court, rule 8.200(a)(5); People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5.) Alfredo joins in the insufficiency of evidence claims raised by Armando.
On February 17, 2011, we granted Alfredo’s motion requesting permission to join Armando’s insufficiency of the evidence claims.
We modify the judgments, affirm as modified and remand for resentencing.
FACTUAL BACKGROUND
The charged offenses
On September 5, 2008, Alejandro A. drove to pick up his brother Hugo A. from a party at Lankershim Boulevard and Vanowen Street. Alejandro also picked up their cousin, Marcos C., and two of Hugo’s friends. Marcos sat in the front passenger seat and Hugo in the middle of the backseat, between his friends.
While driving down Elmer Street, in territory claimed by the Radford Street gang and “MFR4F” local tagging crew, Alejandro and Hugo saw appellants among a group of 10 to 15 “guys hanging out.” The group looked like gang members, as most of them were bald, shirtless or wearing a white shirt and baggy clothing. Several of them were flashing signs representing “MFR4F” or “MFR, ” a tagging crew to which Alfredo belonged. Hugo was in the rival “205 Locals” tagging crew, had recently painted over “MFR4F” graffiti on Elmer Street, and had had physical altercations with Alfredo in the past. Alejandro and Marcos were not taggers.
Alejandro stopped his car on Elmer Street to drop off Hugo’s friends. Appellants and about 10 others from the group of males congregated there converged on the car. Armando opened the driver’s door, asked Alejandro if he was from “205, ” pressed the barrel of a gun against Alejandro’s ribs and told him he was in the “wrong place, the wrong street.” Armando repeatedly hit Alejandro in the face with his fist and gun. Others in the group opened the other car doors, and Alfredo and another person began punching Hugo on the back and attempting to pull him from the car. Another one of the attackers was hitting Marcos, who was seated in the front passenger seat. Hugo’s two friends had run off.
Alejandro stepped on the accelerator, though the car was in park. When the engine responded, Armando said, “Fuck it. That’s it. You’re dead.” Alejandro then placed the car in reverse and backed up. The attackers moved out of the way but kept kicking the car doors. As Alejandro drove away, shots were fired, shattering the car’s back window. Hugo saw Armando shooting.
As a result of the attack, Alejandro sustained bruises to his left eye, swelling to his face and hearing impairment for several days. The back window of his car was shattered, and the driver’s side doors were bent and could not be closed. Alejandro and his father repaired the car, the materials for which cost a little more than $300.
Cesar Lovato (Lovato) was drinking with appellants when Alejandro’s car drove down Elmer Street. He saw Armando lead the charge to Alejandro’s car, with a gun in his possession, and then Armando and Alfredo attacked the occupants. As the car drove away, Lovato saw Armando running after it with a gun and firing two gunshots. According to Lovato, Armando was affiliated with the Radford gang, and Alfredo was part of the MFR tagging crew.
Gang evidence
Los Angeles Police Officer Antonio Vargas, a gang enforcement officer familiar with the Radford gang, testified as a gang expert. He had had personal contact with 13 to 15 Radford gang members and had been directly involved in two cases where its members were involved in gun possession and use, and indirectly aware of several other instances. He had personally observed more than 10 instances of Radford gang graffiti.
The Radford gang’s main activities included narcotics sales, possession of loaded firearms, assault with a deadly weapon and vandalism. It claimed the territory on Elmer Street, where the charged incident occurred. Officer Vargas testified to two predicate offenses related to possession of a firearm.
Officer Vargas had known Armando since 2007. Armando admitted membership in the Radford gang and displayed a Radford gang tattoo to the officer. Alfredo never claimed membership in that gang and had no gang tattoos. Officer Vargas had not seen him in the company of gang members, other than his brother, but knew him to be a tagger.
Tagging crews sometimes get “cliqued up” with gangs. If a tagging crew is a clique of a gang, it is part of the gang. Officer Vargas did not consider Alfredo to be an associate of the Radford gang and had never heard of any MFR4F tagger being jumped into the Radford gang. He believed that MFR4F taggers, by openly associating with Armando on September 5, 2008 were “cliqued up, ” meaning friends with the Radford gang.
Based upon a hypothetical premised upon the evidence in this case, Officer Vargas opined that the charged offenses were committed for the benefit of the Radford gang. The crimes would instill fear in the community and in the victims, and appellants would gain respect from their peers, as crimes they committed would constitute “work” within the gang. Because of the violent nature of the crimes, it would also spur recruits into the gang to make the gang bigger and stronger. Officer Vargas stated that his opinion would be the same even if only one Radford gang member was involved and the rest were taggers, because the taggers were associating with the Radford gang. Both the Radford gang and MFR4F tagger graffiti were found in the same area, suggesting that they were working together.
DISCUSSION
I. Sufficiency of the evidence
A. Evidence of specific intent to promote, further or assist in criminal gang conduct
Armando contends that there is insufficient evidence to support the gang enhancement. He argues that “the evidence adduced in this case did not clearly demonstrate to a near certainty his specific intent to promote, further, or assist in any criminal conduct by any gang member.” At most, so his argument goes, the evidence establishes that at some time Armando may have been a Radford gang member. Because the gang allegation was not proved beyond a reasonable doubt, imposition of the gang enhancement violated his Sixth and Fourteenth Amendment rights, and double jeopardy principles preclude the People from retrying that allegation. This contention is without merit.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) All conflicts in the evidence and questions of credibility are resolved in favor of the verdict, drawing every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.) This standard applies whether direct or circumstantial evidence is involved. (People v. Catlin (2001) 26 Cal.4th 81, 139.) It also applies when determining whether the evidence is sufficient to sustain a jury finding on a gang enhancement. (See People v. Duran (2002) 97 Cal.App.4th 1448, 1456–1457; People v. Villalobos (2006) 145 Cal.App.4th 310, 321–322.)
The gang enhancement in section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony “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, ...” (§ 186.22, subd. (b)(1); People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) It applies when a crime is gang-related. (People v. Castenada (2000) 23 Cal.4th 743, 745.)
Unless otherwise indicated, we refer to former section 186.22 that was in effect in September 2008, when the charged offenses occurred.
There was uncontradicted evidence that Armando was a Radford gang member. Officer Vargas testified that Armando was a member of that gang since 2007 or 2008. Lovato knew Armando was affiliated with the Radford gang. Armando had a Radford gang tattoo on his neck. Alfredo was a member of the MFR4F taggers, a group that associated with the Radford gang, as evidenced by that gang’s and tagger’s graffiti appearing in the same territory and the association of their members.
There was also overwhelming circumstantial evidence that the charged offenses were gang-related and committed with the specific intent to promote, further or assist in criminal conduct by gang members. Such intent, like intent in other contexts, is ordinarily proved by circumstantial evidence. (See People v. Phillips (2010) 188 Cal.App.4th 1383, 1395; see People v. Letner (2010) 50 Cal.4th 99, 168 [intent to commit larceny when entered home]; People v. Lashley (1991) 1 Cal.App.4th 938, 945 [intent to kill rarely is proven by direct evidence for “[o]ne who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots”].)
A crime is committed for gang purposes when it is directed at members of a rival gang, a gang sign is flashed and the attackers gang name is yelled. (See In re Jose T. (1991) 230 Cal.App.3d 1455, 1463.) Retaliation against a rival gang and shouting a gang name is evidence that an offense was committed for the benefit of, at the direction of, or in association with a criminal street gang. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1382–1383.) Here, Armando, a Radford gang member, led the charge on the occupants of Alejandro’s car, which included Hugo, a member of the 205 taggers, a rival of MFR4F taggers, a Radford Street gang clique. Hugo had recently painted over MFR4F graffiti and had been involved in physical altercations with Alfredo in the past, making it likely the attack was an act of gang retaliation. The shooting occurred on Elmer Street, which was known Radford gang and MFR4F tagger territory. Preceding the attack, Armando and Alfredo were among the group of people flashing gang signs at the occupants of Alejandro’s car. Armando asked Alejandro just before attacking him whether he was “from 205” and said that the occupants of Alejandro’s car “were in the wrong place, the wrong street.” After Alejandro pressed the accelerator with the car in neutral, Armando then threatened “Fuck it. That’s it. You’re dead.” The jury could have inferred from this sequence of events that Armando felt disrespected, a fundamental principal of gang culture.
As stated in People v. Villalobos, supra, 145 Cal.App.4th at page 322, “As to the second prong of the enhancement, all that is required is a specific intent ‘to promote, further, or assist in any criminal conduct by gang members.’ [Citation.] Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” The facts that the perpetrators were led by a Radford Street gang member and included members of the related MFR4F taggers, and that the attacks contained so many earmarks of a gang-related crime are substantial evidence that appellants intended to assist criminal conduct by a related clique of taggers.
Relying on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103, Armando argues that the intent to “promote, further, or assist in criminal conduct by gang members, ” refers to an intent to do so in criminal conduct of the gang apart from the instant conviction. Our Supreme Court in People v. Albillar (2010) 51 Cal.4th 47 recently rejected Garcia v. Carey’s interpretation of this language. It quoted Justice Epstein, who explained in People v. Romero (2006) 140 Cal.App.4th 15, 19 that: “By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members, ’ rather than other criminal conduct.” (People v. Romero, supra, at p. 19.)
Because we have determined that there was sufficient evidence to support the gang allegation, we need not decide whether double jeopardy prevents retrial.
B. Evidence of “pattern of criminal activity” by Radford Street gang
Armando contends that there is insufficient evidence to establish that the Radford Street gang engaged in a “‘pattern of criminal activity’” (§ 186.22, subd. (e)). He argues that the testimony of Officer Vargas that that gang’s main activities included narcotic sales, possession of weapons, vandalism and assaults with a deadly weapon was “utterly without foundation.” Officer Vargas’s opinion was based on investigating only one assault case and one weapon possession case, neither of which is one of the offenses enumerated in the gang allegation statute. Officer Vargas conceded that he had never spoken to Radford gang members about their activities.
The People argue that to the extent appellant claims insufficient foundation for Officer Vargas’s opinion concerning the Radford Street gang’s primary activities, that contention has been forfeited for failure to raise it in the trial court. We agree, as discussed below.
For a group to be a criminal street gang, three requirements must be met: (1) The group must be an ongoing association of three or more persons sharing a common name or common identifying sign or symbol; (2) One of the group’s primary activities must be the commission of one or more of the offenses specified in section 186.22, subdivision (e); and (3) The group members must engage in a “pattern of criminal gang activity.” (§ 186.22, subd. (f); People v. Loeun (1997) 17 Cal.4th 1, 8.) It is the second and third requirements that Armando challenges here.
Armando argues that Officer Vargas’s opinion regarding the Radford Street gang’s primary activities bears on the third element of the gang enhancement, that is, whether there is a “pattern of criminal gang activity.” (§ 186.22, subd. (f).) We disagree. Rather, it bears on the second element that one of the primary activities of the gang must be one of the offenses enumerated in section 186.22, subdivision (e). On this issue, Armando’s argument that there was no foundation for Officer Vargas’s testimony regarding the Radford Street gang’s primary activities is pertinent. But as the People correctly point out, there was no objection in the trial court on this ground and thus the argument is forfeited on appeal. (See People v. Seaton (2001) 26 Cal.4th 598, 642–643 [failure to challenge foundation of expert at trial forfeited claim on appeal].)
On appeal we consider all of the evidence admitted by the trial court regardless of whether that evidence was admitted erroneously. (People v. Panah (2005) 35 Cal.4th 395, 476 [“‘“[I]t is settled law that incompetent testimony, such as hearsay or conclusion, if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding”’”].) Officer Vargas testified that the principal activities of the Radford Street gang included assaults with a deadly weapon, sales of narcotics, vandalism and the possession of loaded firearms. Each of these offenses fall within section 186.22, subdivision (e). Hence, there is sufficient evidence to support a finding of the second element of the gang enhancement, that the group’s primary activities include one of those enumerated in section 186.22, subdivision (e).
There was also sufficient evidence to support a finding of the third element of the gang enhancement. A “‘pattern of criminal gang activity’” can be established by proving “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the [predicate] offenses, provided at least one of these offenses occurred after the effective date of this chapter [September 26, 1988] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons....” (§ 186.22, subd. (e).) The prosecution may choose to prove the requisite “‘pattern of criminal gang activity’” by evidence of two or more predicate offenses committed on separate occasions or by evidence of such offenses committed by two or more persons on the same occasion. (People Loeun, supra, 17 Cal.4th at p. 10.) The charged offense can be a predicate offense. (Id. at p. 9; People v. Olguin, supra, 31 Cal.App.4th at p. 1383.)
Armando was convicted in this matter of assault by means likely to produce great bodily injury, an offense eligible to be a predicate offense under section 186.22, subdivision (e)(1). This conviction can therefore serve as one of the predicate offenses. The parties stipulated that to prove the pattern of gang activity, the prosecutor need only prove one predicate offense. Nonetheless, the prosecution also introduced a certified docket of the convictions of Guiyon Gerardo, Jr., for two counts of violations of section 12021, subdivision (a)(1) committed on or about April 23, 2009. These were also eligible to be predicate offenses under section 186.22, subdivision (e)(31). This evidence along with the stipulation was sufficient to establish a pattern of gang activity.
C. Evidence to support vandalism conviction
Appellants damaged Alejandro’s car in the attack. The back window was shattered, and the doors were bent so that they could not be shut. Only Alejandro testified as to the amount of damages to his car, stating that the parts required for he and his father to make the repairs cost a little more than $300.
Armando, joined by Alfredo, contends that there is insufficient evidence to support his vandalism over $400 conviction. We agree. Section 594 provides in part: “(a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism.... [¶] Damages. [¶]... [¶] (b)(1) If the amount of defacement, damage, or destruction is four hundred dollars ($400) or more, vandalism is punishable by imprisonment in the state prison or in a county jail not exceeding one year, or by a fine of not more than ten thousand dollars ($10,000)....”
One of the elements of felony vandalism is that the amount of damage must be $400 or more. There was no evidence that the damages exceeded that sum. The People assert that the damage to the car was not only the cost of the materials, but the value of the labor in repairing it. (See In re Johnny M. (2002) 100 Cal.App.4th 1128, 1134–1135 [dealing with determining amount of victim restitution].) Had Alejandro taken the car to a body shop for repair, the labor costs would have been included in the total damages.
We need not decide whether the value of labor expended by the victim in repairing damage to his own car must be included in the calculation of the total damages caused by vandalism because there was no evidence of the value of that labor here. While the prosecutor presented evidence that the parts to repair Alejandro’s car cost a little more than $300, he failed to introduce any evidence of the labor cost of those repairs. There was no evidence as to the amount of time that it took Alejandro and his father to make the repairs, what their time was worth, how much it would have cost to make the repairs at an automobile repair shop, or even the precise nature of the repairs that were made. While we might speculate that it is likely that the labor cost for the repairs would have been more than $100, to increase the total damage to $400 or more, convictions must be based on evidence, not speculation. As a result, appellants’ convictions of vandalism in excess of $400 must be reversed.
We therefore modify appellant’s conviction, reducing it from felony to misdemeanor vandalism, which does not require a specified amount of damages (§ 594, subd. (b)(2)(A)). (People v. Kelley (1929) 208 Cal. 387, 392 [where evidence sustains contention that crime charged was not established, appellate court need not reverse, but may modify judgment in degree]; see also People v. Castro (1940) 37 Cal.App.2d 311, 315; People v. Navarro (2007) 40 Cal.4th 668, 676–677.) Because a defendant’s aggregate prison term under the determinant sentencing law “cannot be viewed as a series of separate independent terms, but rather must be viewed as one prison term made up of interdependent components... [t]he invalidity of some of those components necessarily infects the entire sentence. [¶]... [¶] In making its sentencing choices in the first instance the trial court undoubtedly considered the overall prison term to be imposed.” (People v. Savala (1983) 147 Cal.App.3d 63, 68–71, disapproved by the same court on other grounds in People v. Foley (1985) 170 Cal.App.3d 1039.) This matter must therefore be remanded for resentencing.
II. Admission of out of court hearsay statements
A. Background
During Lovato’s testimony, the prosecutor marked a written statement given by Lovato to police. On being shown his statement, Lovato testified that that was the statement he gave, and it was accurate. The statement was not used to impeach or rehabilitate Lovato’s testimony, but was subsequently admitted into evidence, without objection by Armando’s counsel. During closing argument, the prosecutor read to the jury, again without objection, Lovato’s written statement.
The written statement had details of Armando’s lifestyle, including statements regarding other bad acts in which he had engaged. It stated that he would go “hunting” at least three times a day, he would always have his.38 or.380 revolver, and Armando told another man to get a shotgun, as Alejandro drove away. It contained information not elicited during Lovato’s testimony.
The prosecutor read the portion of Lovato’s statement during closing, as follows: “I’m going to read the highlighted portion. ‘The MFR4F and Lil Man [Armando’s moniker] will go hunting at least three times a day and Lil Man will always be strapped up with a.38 or.380, not sure but it is a revolver. And every time the MF’ss and R4F’s and Lil Man will go hunting about 10 heads or more deep.’ Then he goes on to say, ‘The 205’s rolled up to Elmer. The first one running was Lil Man with the strap, and everyone followed. They went inside, opened all the doors from 205’s car and started to beat the 205’s. Lil Man pulled out the strap to the driver’s waist while he was inside the car, so the driver quickly backed up. Once they got out of the parking lot, Lil Man ran out and shot at them two times, ran back to the spot, cleaned up the mess in front. Lil Man told Largo to hold the strap and get a shotgun.’”
B. Contentions
Armando contends that the trial court prejudicially erred when it permitted the prosecutor to read Lovato’s statement to the jury during closing argument. He argues that the statement was “pure hearsay” and prejudicial, and its admission rendered his trial fundamentally unfair, denying him due process. He further contends that “defense counsel’s failure to object to the introduction of the statement constitutes incompetent advice of counsel on its face.” He argues that his attorney’s representation was ineffective because there can be no possible tactical reason not to have objected to the admission and reading of Lovato’s statement to the jury.
It is respondent’s position that Armando forfeited this claim by failing to object in the trial court. We agree.
C. Forfeiture
Generally, objections to evidence on the specific grounds asserted must be made or the objection is forfeited. (People v. Derello (1989) 211 Cal.App.3d 414, 428.) To preserve a claim for appeal, a party must object in the trial court and “make clear the specific ground of the objection.” (Evid. Code, § 353, subd. (a).) Constitutional objections must similarly be interposed in the trial court in order to preserve them for appeal. (See People v. Williams (1997) 16 Cal.4th 153, 250.)
Armando failed to object to the admission of Lovato’s statement and to the prosecutor’s reading of that statement to the jury during closing. Consequently, those objections have been forfeited.
D. Reading statement to jury during closing
Had defense counsel preserved his claim regarding the reading of Lovato’s written statement to the jury during closing argument, we would nonetheless reject it. The written statement was admitted into evidence without objection. As such, the prosecutor was entitled to read it to the jury. The prosecutor can argue from the evidence adduced at trial, even if that evidence was improperly admitted. (People v. Hill (1998) 17 Cal.4th 800, 827–828 (Hill); People v. Visciotti (1992) 2 Cal.4th 1, 82.) The prosecutor can discuss the facts and law as he or she sees fit, advance any theory fairly within the evidence and urge any conclusions deemed proper. (People v Hardy (1969) 271 Cal.App.2d 322, 329–330.)
E. Ineffective assistance of counsel
To prevail on claims of ineffective assistance of counsel, a defendant must demonstrate that counsel’s representation fell below an objective standard of reasonableness, and but for counsel’s errors there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1); People v. Hernandez, supra, 33 Cal.4th at pp. 1052–1053.) “‘“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” [Citation.] “[W]e accord great deference to counsel’s tactical decisions” [citation], and we have explained that “courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation].’” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Whether to object to evidence is a strategic decision of counsel to which deference is given and which will seldom establish that counsel was incompetent. (People v. Lucas (1995) 12 Cal.4th 415, 444.)
Here, we conclude that even if the written statement had been excluded from the evidence, there is no reasonable probability that there would have been a different result. In the context of the charged offenses, the content of the written statement was not particularly inflammatory. Moreover, it appears that the jury was not inflamed, as it acquitted Armando on count 7 and Alfredo of counts 4, 5, and 7, suggesting that it carefully considered the evidence and charges as to each count and was not overcome by any inflammatory factors. (See People v. Singh (1995) 37 Cal.App.4th 1343, 1375.) The evidence against Armando was strong. He was identified by Hugo as the shooter, by Alejandro as his attacker, and by Lovato as running after Alejandro’s car with a gun.
III. Cumulative error
Appellant contends that even if any one error he urges is not individually sufficiently prejudicial to warrant reversal, the cumulative effect of the errors denied him his federal and state constitutional right to a fair trial guaranteed by Article I, sections 7 and 15 of the California Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. This contention is without merit.
“Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.]” (Hill, supra, 17 Cal.4th at p. 844.) “Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (Ibid.) Because we have concluded that appellant’s claims of error are meritless, there are no errors to cumulate.
IV. Sentencing errors
A. Increased conduct credits.
At sentencing, the trial court stated: “Now, the defendant [Armando] has spent 540 days in custody. The court will note that time, although on the life sentence the court does not determine total back-time credits. The Department of Corrections will do that.”
Armando contends that the trial court erred in failing to calculate all of his presentence credits. He argues that he is entitled to an additional 81 days of presentence conduct credits pursuant to section 2933.1. He requests that we remand this matter for recalculation of presentence credits and direct that a corrected abstract of judgment reflecting those credits be prepared. Respondent agrees, as do we.
Section 2933.1 provides that any person convicted of a violent felony offense under section 667.5, subdivision (c) shall accrue no more than 15 percent of worktime credit, as defined in section 2933. Armando’s attempted murder convictions are violent felony convictions, invoking the 15 percent credit limitation. Thus, he was entitled to 540 days of actual credit, plus 81 days of worktime presentence custody credit for a total of 621 days of credit. Because this matter must be remanded for resentencing as a result of our reversal of the felony vandalism convictions, presentence credits must be recalculated under People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter) and will include the additional 81 days of conduct credits.
B. Five-year enhancement in § 186.22, subd. (b)(1)(B) be stricken
The trial court added a five-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(B) to Alfredo’s three-year sentence on count 8 for assault by means likely to produce great bodily injury. It sentenced him to a concurrent two-year middle term on count 6 for felony vandalism.
Alfredo contends that his gang enhancement must be stricken because count 8 is not a serious felony within the meaning of section 1192.7, subdivision (c) and the five-year gang enhancement in section 186.22, subdivision (b)(1)(B) only applies to serious felonies.
Section 186.22, subdivision (b)(1)(A) provides that a person convicted of “a felony” that is gang related shall receive, at the court’s discretion, an additional two-, three-, or four-year term on sentencing. Section 186.22, subdivision (b)(1)(B), provides that a person convicted of a “serious felony” within the meaning of section 1192.7, subdivision (c) shall receive an additional five-year term.
Assault by means likely to produce great bodily injury, of which Alfredo was convicted in count 8, is not listed as a serious felony, and there is no evidence in the record that Alfredo inflicted great bodily injury on Hugo, so as to constitute a serious felony within section 1192.7, subdivision (c)(8). Moreover, our Supreme Court has determined that, “[W]hile it is proper to define any felony committed for the benefit of a criminal street gang as a serious felony under section 1192.7(c)(28), it is improper to use the same gang-related conduct again to obtain an additional five-year sentence under section 186.22(b)(1)(B).” (People v. Briceno (2004) 34 Cal.4th 451, 465.)
Respondent agrees that imposition of the five-year gang enhancement was improper, but contends that the trial court should have imposed a two-, three-, or four-year gang enhancement under section 186.22, subdivision (b)(1)(A) and that this matter must be remanded to resentence him with the shorter term gang enhancement. We agree.
C. Section 654
Alfredo contends that his sentence on count 6 should be stayed pursuant to section 654. He argues that vandalism in count 6 was committed at the same time and place as the assault in count 8 and was part of a single, indivisible act, and the damage to the car was incidental to the commission of the assault.
Respondent contends that the matter must be remanded for the trial court to determine whether to stay sentencing on the vandalism count or make a finding under which section 654 would not apply.
Section 654 provides in 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.” (§ 654, subd. (a), italics added.) “[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.” (People v. Perez (1979) 23 Cal.3d 545, 551 (Perez).)
“If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Perez, supra, 23 Cal.3d at p. 551.) If, on the other hand, the 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 (Beamon).) Whether a course of conduct is divisible and therefore gives rise to more than one act depends on the “‘intent and objective’” of the actor and is primarily a question of fact. (People v. Cleveland (2001) 87 Cal.App.4th 263, 267; see People v. Flores (2005) 129 Cal.App.4th 174, 186; see also People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We must determine whether the violations were a means toward the objective of commission of the other. (See Beamon, supra, at p. 639.)
We conclude there is not substantial evidence to support a finding of a divisible course of conduct which would justify punishing Alfredo for both vandalism and assault. There is nothing in the record to suggest that he harbored multiple objectives in vandalizing Alejandro’s car and assaulting its passengers. Vandalizing the car was part of the attack on its occupants. The damage to Alejandro’s car was inflicted as he tried to drive away and escape appellants’ physical attack on him and the other occupants of the car. The doors were kicked and the back window shattered, in an apparent attempt to prevent the escape so that the assault could continue or to inflict further injury as the car was leaving. Consequently, Alfredo could not be punished for both convictions.
The felony vandalism conviction, which we have reduced to misdemeanor vandalism in part IC, ante, must be resentenced and execution of sentence stayed. (People v. Duff (2010) 50 Cal.4th 787, 796 [“[R]ather than dismissing charges or imposing concurrent sentences, when a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence”].)
DISPOSITION
Appellants’ judgments are modified by reducing their convictions of felony vandalism to misdemeanor vandalism, modifying Armando’s judgment to provide 81 days of presentence conduct credits, modifying Alfredo’s judgment by imposing the gang enhancement in section 186.22, subdivision (b)(1)(A) in lieu of the gang enhancement in section 186.22, subdivision (b)(1)(B), and the judgments are otherwise affirmed. On remand, the trial court is directed to resentence appellants consistent with the foregoing modifications, recalculate their presentence credits as directed in Buckhalter, supra, 26 Cal.4th 20, and impose and stay execution of Alfredo’s misdemeanor vandalism conviction.
We concur: ASHMANN-GERST, J., CHAVEZ, J.