Opinion
G042723 Super. Ct. No. 07CF2531
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ANTHONY RAMIREZ et al., Defendants and Appellants.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant, for Richard Anthony Ramirez. Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant, Roberto Hernandez Romero.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant, for Richard Anthony Ramirez.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant, Roberto Hernandez Romero.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Richard Anthony Ramirez appeals from a judgment after a jury convicted him of being an active gang member while having a concealed firearm in the vehicle, street terrorism, and possession of a firearm by a felon, and found true he committed two of the offenses for the benefit of a criminal street gang. Ramirez argues: (1) insufficient evidence supports his conviction for being an active gang member while having a concealed firearm in the vehicle; (2) his conviction for street terrorism must be reversed because it is a necessarily included offense of being an active gang member while having a concealed firearm in the vehicle; (3) the court should have stayed the sentence on his street terrorism conviction; (4) the court should have imposed a sentence on his conviction for possession of a firearm by a felon before staying the sentence; (5) the court erroneously refused to strike his prior strike convictions; and (6) the court erroneously imposed a court security fee on each conviction.
Roberto Hernandez Romero appeals from a judgment after a jury convicted him of one count of first degree robbery, three counts of assault with a semiautomatic firearm, two counts of street terrorism, misdemeanor assault, being an active gang member while having a concealed firearm in the vehicle, and possession of a firearm by a felon. Romero argues: (1) insufficient evidence supports his conviction for being an active gang member while having a concealed firearm in the vehicle; (2) insufficient evidence supports the jury's findings he committed the offenses for the benefit of a criminal street gang; and (3) the court erroneously instructed the jury with CALCRIM No. 371. They both join the others arguments to the extent they accrue to the other's benefit.
We invited the parties to file supplemental briefing on the effect of People v. Albillar (2010) 51 Cal.4th 47 (Albillar), and People v. Sanchez (2010) 179 Cal.App.4th 1297 (Sanchez), on this appeal.
As we explain below, we conclude the following: (1) sufficient evidence supports Romero's conviction for being an active gang member while having a concealed firearm in the vehicle and thus, we reverse his conviction for street terrorism because street terrorism is a necessarily included offense of that offense; (2) insufficient evidence supports Ramirez's conviction for being an active gang member while having a concealed firearm in the vehicle, and thus his claim street terrorism is a necessarily included of that offense is moot, and we need not address his claim the trial court should have stayed the sentence on his street terrorism conviction; (3) the court should have stayed the sentence on count 6 as to Romero; (4) the court should have first imposed and then stayed the sentences on count 10 as to Ramirez and Romero; and (5) the court erroneously imposed the court security fee as to Ramirez and Romero. We remand the matter for resentencing consistent with this opinion.
None of their other contentions have merit. We affirm the judgment in all other respects.
FACTS
July 25, 2007
Just before midnight, Jesus Gonzalez, Carlos Martinez, and Crystal DeAngelo were partying in a "broken down house." Romero, a "Fifth Street" gang member who Gonzalez knew as "Bobby" or "Spanky," and another man entered the bedroom. Romero pointed a gun at Gonzalez and said, "'Wake up, bitch. Get into the other room.'" After Romero cocked the gun twice, Gonzalez, Martinez, and DeAngelo went into the living room. In the living room, Romero pointed the gun at Gonzalez and said, "'Since you don't want to work for me, you're going to give me everything that you have.'" A neighbor walked by and heard, "'Give me your money and everything you got.'" She also heard a gun being "racked." Gonzalez handed Romero his wallet, which had his identification cards but no money. Romero searched Gonzalez's pockets and took $7. Romero pointed the gun at DeAngelo but did not say anything to her or take anything from her. Romero pointed the gun at Martinez and took his cellular telephone. Romero and his accomplice led Martinez outside and assaulted him.
Officer Katherine Juarez responded to the scene. Gonzalez told her Romero drove a silver 2000 Chevrolet Silverado or a gold 1997, four-door Ford Taurus.
July 27, 2007
Two days later, Gonzalez was on his front lawn when a gold four-door car driven by a girl named Cynthia Armendariz stopped in front of his house. Romero, who was sitting in the passenger seat, pointed a gun at him. Ramirez, who Gonzalez knew as "Demon" was also in the car. Romero asked Gonzalez, "'What are you still doing here? I told you to leave.'" Romero told Gonzalez that if he did not leave that night, Romero would kill him. Armendariz drove away, and Gonzalez called 911.
Officer Rosa Ponce de Leon responded to the scene. After Gonzalez told her what had happened, described the car, and explained Romero had robbed him two days before with the same gun, Gonzalez started to walk away. Ponce de Leon heard yelling and whistling, and when she looked at Gonzalez, he indicated the assailants went into an apartment complex across the street. Ponce de Leon drove across the street into the apartment complex and stopped her car behind a gold four-door car. Romero was standing near the trunk with some boxes that he appeared to be putting away. Ponce de Leon saw three people inside the car.
Ponce de Leon got out of her car and with her gun drawn told Romero to put his hands up, but he did not comply. Ramirez got out of the car's backseat, and when he did his hands were near his waistband and it appeared he had a gun tucked into his waistband. Ponce de Leon told Ramirez to put his hands up, but he jumped on top of a car, climbed over a wall, and fled. In the meantime, Officer Otilio Sanchez arrived at the scene, and Ponce de Leon chased Ramirez. After Sanchez arrested Romero, he got into his car to pursue Ramirez. Sanchez eventually apprehended Ramirez but not before Ramirez threw a "shiny" object and resisted arrest. Sanchez recovered the object, a chrome magazine containing several .45 caliber rounds. Officers also found a loaded semi-automatic handgun on the roof of a building near where Ramirez fled. Inside the gold four-door car, officers found among other things Gonzalez's identification cards. Within minutes, Gonzalez identified Romero as the man who pointed the gun at him that night and robbed him two days earlier. Gonzalez identified Ramirez as "Demon."
At the police station while officers were booking Romero, Ponce de Leon saw several tattoos on his body, including "Fifth Street" on his arm and horns on his head near his hairline. Romero said the horns represent the devil. Romero initially denied being a gang member but eventually stated the "Fifth Street" gang was known as "The Devils." Romero said his tattoos were significant to his gang membership. He admitted he was "jumped into" the gang seven years earlier and was an active participant in the gang. When asked what he did for the gang, Romero responded, "'I just did work, kept the neighborhood safe.'" Romero added he was "concerned about the neighborhood and likes to make sure everyone is in line." Romero denied he had a gun or robbed Gonzalez. Ponce de Leon also saw Ramirez had numerous "Fifth Street" gang tattoos, including "'5th'" and "'St'" on his chest, "'FSR'" on his abdomen, "'Fifth Street'" on his back, and "'5th'" on the back of his head.
Trial
The second amended information charged Romero with the following concerning the July 25, 2007, incident: first degree robbery of Jesus Gonzalez (Pen. Code, §§ 211, 212.5, subd. (a)) (count 1), first degree robbery of Carlos Martinez (§§ 211, 212.5, subd. (a)) (count 2), assault with a semiautomatic firearm on Jesus Gonzalez (§ 245, subd. (b)) (count 3), assault with a semiautomatic firearm on Carlos Martinez (§ 245, subd. (b)) (count 4), assault with a semiautomatic firearm on Crystal DeAngelo (§ 245, subd. (b)) (count 5), and street terrorism (§ 186.22, subd. (a)) (count 6). The second amended information charged Romero with the following concerning the July 27, 2007, incident: assault with a semiautomatic firearm on Jesus Gonzalez (§ 245, subd. (b)) (count 7). The second amended information charged Ramirez and Romero with the following concerning the July 27, 2007, incident: being an active gang member while having a concealed firearm in the vehicle (§ 12025, subds. (a)(1), (b)(3)) (count 8), street terrorism (§ 186.22, subd. (a)) (count 9), and possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 10). The second amended information alleged Romero personally used a firearm as to counts 1 and 2 (§ 12022.53, subd. (b)), and he committed all but counts 6 and 9 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The second amended information alleged Ramirez committed counts 8 and 10 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The second amended information alleged Ramirez had suffered two prior strike convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), and four prior serious felony convictions (§ 667, subd. (a)(1)).
All further statutory references are to the Penal Code, unless otherwise indicated.
The trial court later dismissed count 2 on the prosecutor's motion.
At trial, Gonzalez and DeAngelo testified they could not recall or denied the offenses occurred and denied making any of the statements to Juarez. They attributed their memory loss to heavy drug and alcohol use at the time in question.
The prosecutor offered the testimony of Officer Roland Andrade. After detailing his background, training, and experience, Andrade testified concerning the culture and habits of traditional, turf-oriented Hispanic criminal street gangs, including respect within gangs, the importance of guns, the concept of taxation, and the significance of tattoos to demonstrate loyalty.
Andrade explained respect within gang culture is of primary importance. He stated gang members earn respect by committing crimes and the more violent the crime the more respect the gang member earns for himself and his gang. He added gang members typically boast about their crimes to increase their reputation. Andrade characterized a gun in gang culture as "like the painter's brush." He said gang members use guns to protect their territory and commit crimes. He stated a gang gun belongs to the gang, and gang members pass the gun to one another to commit additional crimes and to avoid the gun being confiscated by law enforcement. Andrade explained taxation is when a higher ranking gang member allows a lower ranking gang member or someone not affiliated with the gang to conduct criminal activity in the gang's territory in exchange for a percentage of the profit. Based on his previous investigations and review of documentation, Andrade opined Fifth Street was a criminal street gang as statutorily defined. He testified concerning when the gang was formed, Fifth Street's claimed territory, membership, symbols, allies, rivals, and primary activities, and the statutorily required predicate offenses.
Andrade opined that at the time of the offenses Romero was an active participant in Fifth Street based on the circumstances of the offenses, Romero's prior contact with officers, and Romero's statements and tattoos. Andrade opined that at the time of the offenses Ramirez was also an active participant in Fifth Street based on the circumstances of this case, Ramirez's prior contact with officers, his prior admission he was a Fifth Street gang member, and his tattoos. Based on a hypothetical question mirroring the facts of the offenses, Andrade opined the offenses were done for the benefit of and in association with a criminal street gang. With respect to the July 25, 2007, offense, Andrade stated that after the victim refused to work for the gang member, the gang member assaulted the victim and took his property. He said this was "consistent with . . . taxation." As to the July 27, 2007, offense, Andrade stated two gang members were acting together to commit a crime with a gun. Andrade also stated the offenses were done to promote, further, and assist a criminal street gang because by "taxing these individuals" they acquire proceeds that can be used to purchase guns and drugs for the gang.
The trial court took judicial notice of the following: November 2, 1992, and January 13, 1997, Ramirez admitted he was an active participant in the "Fifth Street" criminal street gang and he had knowledge "Fifth Street" criminal street gang engaged in a pattern of criminal gang activity.
There was expert opinion testimony Romero and Ramirez could not be excluded as DNA contributors to the handgun. The parties stipulated Ramirez and Romero had suffered a prior felony conviction.
The jury convicted Romero of counts 1, 3, 4, 5, 6, 8, 9, and 10, and as to count 7, the lesser included offense of misdemeanor assault. The jury found true all enhancements.
The jury convicted Ramirez of counts 8, 9, and 10 and found true all enhancements. At a bifurcated proceeding, the trial court found true all prior conviction allegations as to Ramirez.
After the trial court denied Romero's new trial motion, the court sentenced Romero to prison for 28 years as follows: four years on count 1; a consecutive 10-year term on count 1's street terrorism enhancement; a consecutive 10-year term on count 1's personal use of a firearm enhancement; and consecutive two-year terms on counts 4 and 5. The court either ran concurrent terms or struck or stayed sentencing on the other counts and enhancements. As relevant here, the court sentenced him to concurrent two-year terms on counts 6 and 9 and stayed sentencing on count 10 pursuant to section 654. The court imposed a criminal conviction assessment fee for each count pursuant to Government Code section 70373, subdivision (a)(1).
After denying his request to strike any of his prior convictions, the trial court sentenced Ramirez to prison for 48 years to life as follows: 25 years to life on count 8; a consecutive three-year term on count 8's street terrorism enhancement; and four consecutive five-year terms on the prior prison term allegations. The court sentenced Ramirez to a concurrent term of 25 years to life on count 9. The court stayed the sentence on count 10 pursuant to section 654. The court imposed a criminal conviction assessment fee for each count pursuant to Government Code section 70373, subdivision (a)(1).
DISCUSSION
I. Sufficiency of the Evidence
A. Count 8
Romero and Ramirez argue insufficient evidence supports their conviction on count 8.
We review the entire record in the light most favorable to the judgment to determine whether a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Staten (2000) 24 Cal.4th 434, 460.)
Penal Code section 12025 states in relevant part: "(a) A person is guilty of carrying a concealed firearm when he or she does any of the following: [¶] (1) Carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person. [¶] . . . [¶] (b) Carrying a concealed firearm in violation of this section is punishable, as follows: [¶] . . . [¶] (3) Where the person is an active participant in a criminal street gang, as defined in subdivision (a) of [s]ection 186.22, under the Street Terrorism Enforcement and Prevention Act . . . as a felony." As relevant here, the elements of section 12025, subdivision (a)(1), are: (1) the defendant knowingly carried within a vehicle a firearm capable of being concealed on the person; (2) the firearm was substantially concealed within the vehicle; (3) the vehicle was under the defendant's control or direction; and (4) the defendant was an active participant in a criminal street gang.
1. Romero
Romero admits he brandished the firearm but argues there was no evidence he concealed the firearm within the vehicle. Not so. The evidence at trial established Armendariz stopped the car in front of Gonzalez's house, and Romero, who was sitting in the front passenger seat, pointed a gun at him. There was no evidence concerning what happened to the gun until Ponce de Leon saw Ramirez get out of the car's backseat with what appeared to be a gun tucked into his waistband. An officer recovered the gun from the roof of the garage by which Ramirez fled, and it was later determined Romero's DNA was on the gun. Andrade testified a gang gun belongs to the gang, and gang members pass the gun to one another in part to avoid the gun being confiscated by law enforcement. From this evidence the jury could reasonably conclude that after Romero pointed the gun at Gonzalez, he passed the gun to Ramirez in the backseat so Ramirez could hide the gun to avoid detection. The jury could also reasonably conclude Ramirez concealed that gun in his waistband when Romero gave him the gun as Ponce de Leon saw the gun in Ramirez's waistband when he got out of the car. "The statute does not require that a defendant have the exclusive possession and control of the firearm. [Citation.]" (People v. Gant (1968) 264 Cal.App.2d 420, 425.)
To the extent if at all that Romero argues insufficient evidence supports his conviction on count 8 because there was no evidence Romero concealed the gun in the car instead of concealing the gun on Ramirez's person, we have found no decisional authority directly on point, and the parties have cited to none. But based on the evidence and the expert gang testimony we see no meaningful difference between concealing a gun in the vehicle and concealing a gun on a fellow gang member who is in the vehicle. Thus, there was sufficient circumstantial evidence for the jury to convict Romero of count 8.
2. Ramirez
Ramirez contends there was no evidence (1) he carried a concealable firearm in the vehicle and (2) the vehicle was under his control or direction. The Attorney General concedes there was no evidence the gold, four-door car was under his control or direction. We agree there was no evidence supporting this element of the crime.
After the July 25, 2007, incident, Gonzalez advised Juarez that Romero drove a 2000 Chevrolet Silverado or a 1997 gold, four-door Ford Taurus. On July 27, 2007, the evidence established Armendariz drove the gold four-door car, and Romero was in the front passenger seat. The evidence demonstrated Ramirez sat in the rear passenger seat. Because Ramirez did not drive the car and did not sit in the front passenger seat, and because the prosecutor offered no other evidence Ramirez directed Armendariz to drive in any particular manner, insufficient evidence supports Ramirez's conviction on count 8. (People v. Jenkins (1962) 207 Cal.App.2d Supp. 904, 905 [backseat passenger does not generally control a vehicle].) B. Section 186.22, subdivision (b)
Romero contends insufficient evidence supports the jury's finding he committed counts 1, 3, 4, 5, 7, 8, and 10 for the benefit of a criminal street gang. We disagree.
Romero does not mention count 5 and the Attorney General does not include count 4. We assume the parties' arguments apply to all counts that the jury concluded Romero committed for the benefit of a criminal street gang.
"In considering a challenge to the sufficiency of the evidence to support an enhancement, [the appellate court] review[s] the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] [It] presume[s] every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (Albillar, supra, 51 Cal.4th at pp. 59-60.)
"[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 . . . ." (Pen. Code, § 186.22, subd. (b)(1).) "[T]he scienter requirement in section 186.22[, subdivision] (b)(1)—i.e., 'the specific intent to promote, further, or assist in any criminal conduct by gang members'—is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Albillar, supra, 51 Cal.4th at p. 66.) Additionally, "[t]here is no further requirement that the defendant act with the 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. [Citations.]" (Id. at p. 67.) "It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. [Citation.]" (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 (Ferraez).)
Here, there was overwhelming evidence Romero committed all the offenses on July 25, 2007, and July 27, 2007, for the benefit of a criminal street gang. Andrade testified taxation is when a gang member permits someone not affiliated with the gang to conduct criminal activity in the gang's territory in exchange for a percentage of the profit. The evidence at trial established Gonzalez, Martinez, and DeAngelo were partying when Romero and another man entered the room. Gonzalez knew Romero to be a "Fifth Street" gang member. Romero pointed a gun at him, directed him to another room, and said, "'Since you don't want to work for me, you're going to give me everything that you have.'" Two days later, Romero, a front seat passenger in his own car, pointed a gun at Gonzalez and said, "'What are you still doing here? I told you to leave.'" Romero told Gonzalez that if he did not leave that night, Romero would kill him.
Based on a hypothetical question mirroring the facts of the case, Andrade explained that after the victim refused to work for the gang member, the gang member assaulted the victim and took his property, which was "consistent with . . . taxation." Andrade stated that two days later, two gang members acted together to commit a crime with a gun. (Albillar, supra, 51 Cal.4th at p. 68 ["if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members" ].) Andrade opined all the offenses were committed for the benefit of a criminal street gang because by "taxing these individuals" they acquire proceeds that can be used to purchase guns and drugs for the gang. Romero's own words provide some circumstantial evidence he "taxed" Gonzalez. After he was arrested, Romero told Ponce de Leon, he was "concerned about the neighborhood and likes to make sure everyone is in line." This was sufficient evidence for the jury to conclude a gang member working on behalf of the gang threatened a non-gang member who refused to work for the gang member and give the gang member proceeds from the crimes.
Romero relies on the fact that at trial Gonzalez denied Romero committed any wrongdoing and there was no evidence his conduct constituted the act of taxing. Although Gonzalez forgot or denied the circumstances of the offenses, Juarez and Ponce de Leon provided the missing details. And as we explain above, there was sufficient evidence Romero acted with the specific intent to benefit a criminal street gang when he tried to keep Gonzalez "in line" by "taxing" him. Thus, sufficient evidence supports the jury's findings Romero committed counts 1, 3, 4, 5, 7, 8, and 10 for the benefit of a criminal street gang.
II. Necessarily Included Offense-Count 9
Ramirez asserts count 9, street terrorism, is a necessarily included offense of count 8, being an active gang member while having a concealed firearm in the vehicle. The Attorney General replies it has conceded insufficient evidence supports Ramirez's conviction for count 8 and therefore his conviction on count 9 should be affirmed. We agree insufficient evidence supports Ramirez's conviction for count 8. The Attorney General, however, adds that Ramirez's argument benefits Romero. Again, we agree.
Multiple convictions for the same act may not be based on necessarily included offenses. (People v. Ortega (1998) 19 Cal.4th 686, 692, overruled on other grounds in People v. Reed (2006) 38 Cal.4th 1224.) "'"The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense." [Citations.]' [Citation.]" (Id. at p. 692.)
The jury convicted Romero of committing street terrorism on July 27, 2007, in violation of section 186.22, subdivision (a), as charged in count 9 of the information and being an active gang member while having a concealed firearm in the vehicle in violation of 12025, subdivisions (a)(1), (b)(3), as charged in count 8 on the same date. Romero could not have committed count 8 without necessarily committing count 9 at the same time. He cannot be convicted of both crimes. (People v. Flores (2005) 129 Cal.App.4th 174, 184.) Accordingly, we reverse his conviction on count 9.
III. CALCRIM No. 371
Romero claims the trial court erroneously instructed the jury with CALCRIM No. 371 because it lowered the prosecutor's burden of proof and thus violated his federal constitutional rights. Not so.
The trial court instructed the jury with CALCRIM No. 371, "Consciousness of Guilt: Suppression and Fabrication of Evidence," as follows: "If a defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that a defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶] If you conclude that a defendant tried to hide evidence, you may consider that conduct only against that defendant. You may not consider that conduct in deciding whether any other defendant is guilty or not guilty."
Preliminarily, Romero did not object to the trial court instructing the jury with CALCRIM No. 371, and thus his claim is forfeited. (People v. Jackson (1996) 13 Cal.4th 1164, 1223 (Jackson).)Regardless, the instruction was proper.
Romero concedes the California Supreme Court has approved CALCRIM No. 371's predecessor, CALJIC No. 2.06. (Jackson, supra, 13 Cal.4th at p. 1224.) Romero contends however CALJIC No. 2.06 used "consciousness of guilt" whereas CALCRIM No. 371 uses "aware of his guilt." He asserts this is a distinction with a difference because "aware of his guilt" implies the defendant is guilty. People v. Hernandez Rios (2007) 151 Cal.App.4th 1154 (Hernandez Rios), is instructive.
In Hernandez Rios, supra, 151 Cal.App.4th at pages 1157-1159, the court rejected a similar contention. In that case, the trial court instructed the jury with a version of CALCRIM No. 372, which stated: "'If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.'" (Hernandez Rios, supra, 151 Cal.App.4th at p. 1158, italics added.) Defendant contended this instruction impermissibly presumed his guilt and lowered the prosecution's burden of proof. (Id. at pp. 1157-1158.) Following an "etymological analysis," the court determined the terms "'conscious'" and "'aware'" are equivalent in meaning for purposes of a "'consciousness of guilt'" instruction. (Id. at pp. 1158-1159.) Romero offers no compelling reason to depart from Hernandez Rios's reasoned analysis and conclusion.
Romero also claims there was no evidence he tried to hide anything. Nonsense. The prosecutor offered evidence that when Ponce de Leon pulled up behind Romero's car he appeared to be putting boxes in the trunk. She stated he appeared to be "put[ting] it away or something." The prosecutor also offered evidence from which the jury could reasonably conclude that after Romero pointed the gun at Gonzalez he gave the gun to Ramirez who concealed it in his waistband. This conclusion was further buttressed by Andrade's expert testimony gang members pass guns to other gang members to avoid detection. Thus, there was sufficient evidence for the trial court to instruct the jury with CALCRIM No. 371 and the instruction was proper. IV. Section 654
Section 654, subdivision (a), in relevant part 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 provision."
In People v. Herrera (1999) 70 Cal.App.4th 1456 (Herrera), defendant, a gang member, fired three shots at a rival gang member's house from the front passenger seat of a vehicle. One bullet struck an 11-year-old boy and another bullet struck a man in the left shoulder. The vehicle made a U-turn and returned for a second pass, and approximately 10 additional shots were fired but there were no further injuries. As relevant here, jury convicted defendant of two counts of attempted premeditated murder and one count of street terrorism, and the trial court sentenced defendant on the three counts without staying the sentence on any of the counts. (Id. at pp. 1465-1466.) After discussing relevant California Supreme Court case authority, the court concluded section 654 did not apply, relying on the distinctions between the requisite intents for the two crimes. The court said the crime of attempted murder required defendant to have the specific intent to kill, whereas the crime of street terrorism required defendant to have the intent to actively participate in a criminal street gang. (Id. at p. 1467.)
In Sanchez, supra, 179 Cal.App.4th 1297, our colleagues in the Fourth District, Division Two disagreed with the Herrera court's reasoning. In Sanchez, supra, 179 Cal.App.4th at page 1301, a jury convicted defendant of committing a robbery with a confederate and street terrorism. In finding defendant could not be punished for both crimes, the court stated: "Here, the underlying robberies were the act that transformed mere gang membership—which, by itself, is not a crime—into the crime of gang participation. Accordingly, it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing the robberies. Gang participation merely requires that the defendant 'willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of that gang . . . .' [Citation.] It does not require that the defendant participated in the underlying felony with the intent to benefit the gang. [Citations.] [¶] In our view, the crucial point is that . . . defendant stands convicted of both (1) a crime that requires, as one of its elements, the intentional commission of an underlying offense, and (2) the underlying offense itself." (Id. at p. 1315.)
We note that in the 10-year span between Herrera and Sanchez, other cases have addressed the issue we face here. (People v. Vu (2006) 143 Cal.App.4th 1009; Ferraez, supra, 112 Cal.App.4th 925; In re Jose P. (2003) 106 Cal.App.4th 458.) And subsequent to Sanchez, one published decision followed Herrera, People v. Mesa (2010) 186 Cal.App.4th 773 (Mesa), and one published decision followed Sanchez, People v. Duarte (2010) 190 Cal.App.4th 82 (Duarte), yet another case from this court. The California Supreme Court recently granted review in both cases. Although the issue is currently before the California Supreme Court, we must resolve the issue before us.
Mesa, supra, 186 Cal.App.4th 773, review granted October 27, 2010, S185688; Duarte, supra, 190 Cal.App.4th 82, review granted February 23, 2011, S189174. The Supreme Court also granted review in People v. Ballard (March 2, 2011, S190106.)
Section 654 does not include any language that permits the circumvention of the prohibition against multiple punishments because a defendant had multiple intents or intended multiple impacts in a single act scenario. The cases interpreting section 654 require a trial court to determine whether the series of acts amount to a course of conduct subject to a single intent, or multiple intents and objectives, only when a defendant engages in multiple acts. Herrera, supra, 70 Cal.App.4th 1456, appears to have extended the "intent and objective" test articulated in Neal v. State of California (1960) 55 Cal.2d 11, to impose separate punishments for the street terrorism offense and the underlying felony even if those offenses arise out of a single act. (Herrera, supra, 70 Cal.App.4th at p. 1468; Sanchez, supra, 179 Cal.App.4th at p. 1312 [Herrera treated defendant's two counts of attempted murder as a single drive-by shooting].)
We conclude the "intent and objective" test as applied in Herrera is inapt when a defendant's conduct is but a single act. The purpose of section 654 is to prevent multiple punishments for a single act and thereby shield a defendant from multiple punishments. We find no support in applicable California Supreme Court decisional authority for the proposition a single act can be carved up based on intents or objectives and thereby pierce section 654's protections. We agree with the Herrera court's statement the Legislature intended to create a new crime to address the serious threat street gang violence posed to public safety. But that intent is not instructive in interpreting the plain language of section 654.
A. Ramirez
Relying on section 654, Ramirez argues the trial court erroneously sentenced him to a concurrent term of two years on count 9, street terrorism, after sentencing him to 25 years to life on count 8. Because we conclude insufficient evidence supports Ramirez's conviction on count 8, we need not address his claim. Thus, Ramirez stands convicted of counts 9 and 10. As we explain below, because the trial court did not impose a sentence on count 10 before staying it, we must remand the matter for resentencing pursuant to Sanchez, supra, 179 Cal.App.4th 1297.
B. Romero
Romero does not raise the section 654 argument but he joins in all Ramirez's contentions that benefit him. As we state above, the jury convicted Romero of two counts of street terrorism, counts 6 and 9, in violation of section 186.22, subdivision (a). However, as we explain above, we reverse Romero's conviction on count 9 because it is a necessarily included offense of count 8. Thus, Romero stands convicted of one count of street terrorism in count 6. We limit our discussion accordingly.
As relevant here, the information charged Romero with first degree robbery, three counts of assault with a semiautomatic firearm, and street terrorism. The trial court instructed the jury section 186.22, subdivision (a)'s felonious criminal conduct requirement was defined as "committing any of the following crimes: residential robbery[] [and] assault with a semiautomatic firearm[.]"
It is clear that when the jury convicted Romero of count 6 it did so based on felonious conduct he was charged with and convicted of in counts 1, 3, 4, or 5. Thus, the trial court should not have imposed the two-year concurrent sentence on count 6 as one of the underlying felonies, counts 1, 3, 4, or 5, was used to satisfy the felonious conduct element of section 186.22, subdivision (a)'s street terrorism charge in count 6.
C. Ramirez & Romero
Ramirez asserts the trial court failed to impose a sentence on count 10 before staying the sentence pursuant to section 654. We agree as to both Ramirez and Romero.
"[T]he rule is, as it has been for many years: A trial court must impose sentence on every count but stay execution as necessary to implement section 654." (People v. Alford (2010) 180 Cal.App.4th 1463, 1472.) Here, based on our review of the record, the trial court did not impose sentences on count 10 as to either Ramirez or Romero. We remand the matter to the trial court for resentencing. (People v. Kramer (2002) 29 Cal.4th 720, 724-726.)
V. Dismissal of Strike
Ramirez argues the trial court erroneously refused to strike his prior strike allegations. We disagree.
"This court emphasized in People v. Superior Court (Romero)(1996) 13 Cal.4th 497 . . . that a 'court's discretion to strike prior felony conviction allegations in furtherance of justice is limited' and that exercise of such discretion requires 'strict compliance with section 1385[, subdivision] (a), and is subject to review for abuse.' [Citation.] We explained that the trial court must give '"'consideration both [to] the constitutional rights of the defendant and the interests of society represented by the People in determining whether there should be a dismissal . . ."" [Citation.] We gave as examples of abuse of discretion the striking of a prior conviction 'solely "to accommodate judicial convenience or because of court congestion,"' or 'simply because a defendant pleads guilty,' or due to '"personal antipathy for the effect that the three strikes law would have on [a] defendant," while ignoring "defendant's background," "the nature of his present offenses," and other "individualized considerations."' [Citation.] [¶] We clarified in People v. Williams [(1998)] 17 Cal.4th 148 . . . that the decision whether to strike a prior-conviction allegation under the Three Strikes law requires the trial court to look 'within the scheme in question, as informed by generally applicable sentencing principles . . . .' [Citation.] We explained that 'no weight whatsoever may be given to factors extrinsic to the [Three Strikes] scheme' and that 'the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.' [Citation.] [¶] We also have emphasized that the decision before a court under this statutory scheme relates to sentencing but does not affect the validity of the prior conviction. [Citation.] A defendant's sentence 'is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences.' [Citation.]" (People v. Wallace (2004) 33 Cal.4th 738, 747.)
Here, Ramirez orally requested the trial court exercise its discretion pursuant to Romero, supra, 13 Cal.4th 497. The court stated: "[T]he court has . . . taken into account not only the facts and circumstances of the base offense, but also the priors as well as the probation report and the comments of counsel, and what the issue before the court is right now, I think it's the main issue, is whether the court on its own at the invitation of counsel under its authority under [section] 1385 strike one or two of the strikes for -- and then put this case into the determinate sentencing arena. [¶] The court has spent a considerable amount of time reflecting upon this with respect to . . . Ramirez. I am mindful of the fact of the conduct here that did not result in the injury or death of anyone. I've also taken into account those photographs where it appears that . . . Ramirez is enjoying the life of being in the family. I've taken that into account. [¶] The court has also taken into account the fact that -- and the probation report has indicated in the [1980s] when . . . Ramirez was doing his crimes, at that time he was an active participant. He was actually shooting weapons at that time. Based on the priors, he was threatening witnesses as a gang member in the [1990s]. And as has been brought out, he has done some time in prison, but in 2007 when he's approaching the age of 40 years, he's with another gang member with a loaded weapon. [¶] And so the court finds that based upon all of those facts, the court in its discretion cannot take this case out of the three strikes arena, so to speak, and make it into a determinate sentence for those reasons that I've outlined."
Ramirez concedes the trial court "at first blush, appears to have properly exercised its discretion." He contends however the court improperly relied on his continuing association with the Fifth Street criminal street gang. He cites to a number of items that support striking a strike, including (1) he was not present during the July 25, 2007, robbery; (2) he "was an uninvolved back seat passenger when Romero pointed a gun at Gonzalez and threatened him"; (3) he never used the gun but instead simply tried to dispose of it; (4) his involvement in the offenses was because of a serious drinking problem; (5) he was in a stable long-term relationship and has three children; and (6) his criminal involvement over the years has become less serious.
Based on our review of the record, the trial court did not rely solely on Ramirez's gang participation. The court's statements inescapably lead to the conclusion it carefully considered and weighed all the factors Ramirez cites to in support of his position. Although the court stated there were factors that weighed in favor of striking a strike, the court concluded the circumstances of the offense, his prior convictions, and his background did not take Ramirez out of the spirit of the Three Strikes law. Thus, the court properly weighed and considered all the relevant factors in refusing to strike any of Ramirez's prior strikes.
VI. Government Code section 70373
Ramirez, and Romero by joining in all Ramirez's claims that accrue to his benefit, argue the trial court erroneously imposed the $30 court security fee. The Attorney General concedes the error, and we agree.
Government Code section 70373, subdivision (a)(1), provides: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction."
In People v. Davis (2010) 185 Cal.App.4th 998, 1001, the court reiterated the rule that a "conviction" ordinarily occurs when a jury returns a guilty verdict or when a defendant enters a plea admitting guilt, while noting that an exception may obtain when a civil disability such as disenfranchisement or disbarment from holding office follows from conviction. In such a case, "conviction" occurs when sentence is pronounced. The court reasoned that because defendant had entered his guilty plea before the effective date of Government Code section 70373, and because the statute does not involve a civil disability of the kind that would make the sentencing date the date of "conviction," the statute could not be applied to him. (Ibid.)
The offenses Ramirez and Romero stand convicted of were committed in July 2007. The jury convicted them October 2008. Government Code section 70373 became effective January 1, 2009, and the trial court sentenced Ramirez and Romero later that year. Thus, the jury convicted Ramirez and Romero before the effective date of Government Code section 70373, and the assessments were improper and are stricken.
DISPOSITION
We reverse Ramirez's conviction for count 8. We reverse Romero's conviction for count 9. We strike the court security fees imposed pursuant to Government Code section 70373. We remand the matter for resentencing consistent with this opinion. In all other respects, we affirm the judgment.
O'LEARY, J. WE CONCUR: FYBEL RYLAARSDAM, Acting P. J., Concurring:
I concur in the result of the lead opinion and its reasoning with the exception of Part IV of the discussion. I write separately because I disagree with its analysis of our prior decision in People v. Herrera (1999) 70 Cal.App.4th 1456.
Penal Code section 654, subdivision (a) bars multiple punishments only for "[a]n act or omission that is punishable in different ways by different provisions of law." But in Neal v. State of California (1960) 55 Cal.2d 11, the Supreme Court recognized "[f]ew if any crimes . . . are the result of a single physical act" (id. at p. 19), and held the statute also applies "'where a course of conduct violate[s] more than one statute . . .'" (ibid). Under Neal, "[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Ibid.)
Subsequent cases have recognized "[i]f [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; see also People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) However, Neal reaffirmed that, '"[i]f only a single act is charged as the basis of the multiple convictions . . .[,]' the defendant can be punished only once. [Citation.]" (Neal v. State of California, supra, 55 Cal.2d at p. 19.)
Contrary to the lead opinion's conclusion, Herrera involved a course of conduct, not a single act. There the defendant, a gang member riding as a passenger in a car, fired several shots at a residence frequented by members of a rival gang. The car made a U-turn and drove by the house a second time during which several more shots were fired at it. The prosecution charged the defendant with 10 offenses arising from this incident, including two counts of attempted murder, one for the shots fired during the initial drive-by and a second for the shots fired during the second pass of the residence, plus a charge for street terrorism. The jury convicted him on all 10 charges.
On appeal, we rejected the defendant's claim Penal Code section 654 barred him from being punished for both the attempted murders and street terrorism. Citing Neal's statement "'[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act . . . depends on the intent and objective of the actor'" (People v. Herrera, supra, 70 Cal.App.4th at p. 1466), and the corollary that "'[m]ultiple punishment . . . may be imposed where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives'" (ibid.), this court ruled "Herrera's conviction for street terrorism is likewise divisible from the attempted murders" (ibid.; see also People v. Vu (2006) 143 Cal.App.4th 1009, 1034 [describing Herrera as "a course of criminal conduct [case] involving two gang-related, drive-by shootings"]).
However, I agree with the lead opinion's conclusion that defendant Roberto Hernandez Romero's course of conduct in robbing Gonzalez, plus assaulting him, Martinez and DeAngelo, involved only the single objective of enforcing the gang's authority within its claimed territory. Romero took Gonzalez's money because of the latter's apparent refusal to pay a "tax" to Fifth Street. By assaulting both him and the other two victims, Romero sought to enforce respect for Fifth Street through intimidation and fear. Thus, I conclude the trial court erred by not staying the concurrent sentence imposed on Romero for count 6.
RYLAARSDAM, ACTING P. J.