Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F06541
RAYE, Acting P. J.Early on a summer morning in July 2006 defendant Juan Rivas-Reyes walked up to car parked outside a restaurant and, at gunpoint, demanded the driver’s keys. Later that day, the car was used in a drive-by shooting that wounded four people. An information charged defendant with carjacking, four counts of assault with a semiautomatic firearm, four counts of shooting from a motor vehicle, four counts of attempted murder, and shooting at an inhabited dwelling house. (Pen. Code, §§ 215, subd. (a), 245, subd. (b), 12034, subd. (c), 664/187, subd. (a), 246.) A jury found defendant guilty of all charges except three of the four counts of attempted murder.
All further statutory references are to the Penal Code.
Sentenced to life in prison with the possibility of parole plus 25 years to life, defendant appeals, contending the trial court erred in denying his request to bifurcate the criminal street gang allegations and in instructing the jury. The People contend the abstract of judgment should be corrected. We shall affirm the judgment and direct the abstract to be corrected to conform to the trial court’s imposition of sentence. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Carjacking
Shortly after midnight on July 16, 2006, Kristopher Ballard sat in his white 1994 Thunderbird in a parking lot near a restaurant. Two men walked up and told him to get out of the car.
One man, who stood by the driver’s side of the car, held a semiautomatic handgun. Ballard got out of the car and the other man asked for the keys. Ballard complied.
The man with the gun told Ballard to cooperate or get shot. He demanded Ballard’s money, and Ballard gave the man the money that was in his wallet. As Ballard walked away, the man with the gun got into the front passenger seat. Ballard heard a gunshot and ducked for cover. Two more shots followed. A shell case was found a few feet from where the car had been parked. Two nine-millimeter shell cases were also found nearby.
Ballard described the man wielding the gun as an Hispanic of medium build, about five feet ten inches tall, with black hair. Ballard described the man without the gun as Hispanic, of medium height and medium build, with black hair.
In court over a year later, Ballard could not positively identify defendant, but stated he looked familiar and had the eyes of the man with the gun. In a previous photographic lineup, Ballard positively identified defendant as the man with the gun.
The Drive-by Shooting
Later on the day of the carjacking, Ronnie Jones, Emilio Vidales, and their friend Andrew congregated outside the Vidales residence. A white Ford Thunderbird drove by, and the car’s passenger asked the young men if they had any marijuana or knew where some could be found.
Some of the people involved in the incident have the same surname, so we will refer to them by their first names when necessary for clarity.
The passenger also asked Andrew if he was a Norteño. Andrew and Emilio went into the house and Andrew spoke with Hector Jam. Jam, Emilio’s sisters Monica and Martha Vidales, and Monica’s friend Lorena Martinez came out of the house. Jam said a Spanish word for gun.
Standing by the side of the house, Jones heard four or five gunshots. The shots came from the passenger side of the car, lighting up the sky. Martha, Monica, Martinez, and Jam stood on the porch. As Emilio came out of the house, he was shot in the knee. He heard about eight shots. Emilio described the passenger as an Hispanic male around 17 or 18 years old. Emilio identified defendant in a later photographic lineup as the passenger in the car. He could not see the driver. At trial, Emilio testified he did not recognize defendant and had never seen him before.
The shot cracked Emilio’s kneecap. He was unable to walk for several months.
Martinez was shot in the right leg. Martinez heard defendant say, “[H]ey, Hector,” from the car. Monica was shot in the legs and was on crutches for a month.
Jam was shot in the chest and passed out from the wound. He remained hospitalized for two weeks after the shooting.
When officers responded to the scene, they recovered 11 shell cases from the curb in front of Emilio’s house. The house was riddled with bullet holes. Officers also recovered a damaged bullet from the porch.
Jones identified defendant as the passenger of the car but was not fully confident because he could not clearly see the passenger. Monica identified defendant as the passenger from a photographic lineup. She knew defendant from high school. Martinez also knew defendant from high school and identified him as the passenger in the Thunderbird. In high school, Martinez saw defendant “hang around” with people wearing blue clothes, a color associated with the Sureño gang.
The day after the shooting, officers executed a search warrant at defendant’s parents’ residence. The search yielded two rounds of live ammunition, a magazine to a handgun, a gun case, and approximately 300 rounds of live ammunition for a nine-millimeter handgun. Prints on the gun case matched defendant’s prints. A criminalist examined the magazine and the spent cartridges recovered from the scene, and determined the cartridges were “most likely” loaded into the magazine.
Officers recovered the stolen Thunderbird. They found live rounds of ammunition on the front passenger seat, between the front passenger seat and the center console, and between the front passenger seat and the front passenger door. Prints lifted from the car did not match defendant’s prints. Two days after the shooting, officers arrested defendant.
An amended information charged defendant with the following 14 counts:
Count One
Carjacking, in violation of section 215,subdivision (a), against Christopher[sic] Ballard
Count Two
Assault with a semiautomatic firearm, inviolation of section 245, subdivision (b),against Monica Vidales
Count Three
Assault with a semiautomatic firearm, inviolation of section 245, subdivision (b),against Emilio Vidales
Count Four
Assault with a semiautomatic firearm, inviolation of section 245, subdivision (b),against Lorena Martinez
Count Five
Assault with a semiautomatic firearm, inviolation of section 245, subdivision (b),against Hector Jam
Count Six
Discharge of a firearm from a motor vehicle, inviolation of section 12034, subdivision (c),against Monica Vidales
Count Seven
Discharge of a firearm from a motor vehicle, inviolation of section 12034, subdivision (c),against Emilio Vidales
Count Eight
Discharge of a firearm from a motor vehicle, inviolation of section 12034, subdivision (c),against Hector Jam
Count Nine
Discharge of a firearm from a motor vehicle, inviolation of section 12034, subdivision (c),against Lorena Martinez
Count Ten
Attempted murder, in violation of sections664/187, subdivision (a), against Emilio Vidales
Count Eleven
Attempted murder, in violation of sections664/187, subdivision (a), against Monica Vidales
Count Twelve
Attempted murder, in violation of sections664/187, subdivision (a), against Lorena Martinez
Count Thirteen
Attempted murder, in violation of sections664/187, subdivision (a), against Hector Jam
Count Fourteen
Discharge of a firearm at an inhabited dwellinghouse, in violation of section 246
A jury trial followed. Ballard testified as to the events surrounding the carjacking. The victims of the drive-by shooting testified as to their recollection of events.
The prosecution also presented testimony by a gang expert, Sacramento Police Detective Brian Kinney. Kinney testified that, in his opinion, defendant was a member of the Sureño gang. Defendant admitted his membership and had five prior contacts with the police department.
Kinney also testified that Jam, one of the victims, belonged to the Norteño gang. According to Kinney, among gang members there exists a code of silence wherein one gang member will not testify against another gang member.
Based on the facts surrounding the drive-by shooting, Kinney believed defendant committed the crime to bolster his reputation and respect within the gang and because it benefitted the gang. The fact that defendant shot four people would make others fear the Sureños.
Defendant testified in his own defense. He belonged to a gang, the Triangle Park Sureños, but had not been “jumped in.” Defendant had been involved in at least 15 fights with Norteños, but they were all fistfights and did not involve any weapons.
Defendant shared a bedroom in his parents’ house with his brother and sometimes a cousin. Defendant’s cousin wore the shirt in which officers found the rounds of live ammunition. Defendant’s brother also belonged to a gang.
Defendant knew Jam, Monica, and Martinez from high school. He knew Jam was a Norteño, but as long as someone from another gang did not disrespect him, defendant had no problem with that person.
Defendant was not involved in the carjacking of the Thunderbird. He had been at a party with a friend and returned home just before the carjacking took place.
Later that evening, a friend and fellow gang member, Casper, called. Casper had some problems with “northerners” and wanted defendant to help him confront them. Defendant got into the white car Casper was driving. Casper asked defendant to load a gun magazine with bullets. Casper said he was bringing the gun for self-defense.
On Casper’s directions, defendant drove to a house. Casper asked two people standing in the driveway if they had any marijuana. Another person walked out of the house wearing a red T-shirt. Casper took out the gun and began firing. Surprised and frightened, defendant stepped on the gas and sped away. Casper said the man in the red shirt was a “Northener” and so he fired at him. Defendant did not see anyone else come out of the house because a tree blocked his view. Defendant was angry with Casper.
After his arrest, defendant denied any knowledge of the drive-by shooting. He told the officers he had gone to a party with a friend, Gustavo Padilla. When officers contacted Padilla, he denied knowing defendant. Defendant also had lost Casper’s telephone number.
The jury found defendant guilty of all charges except counts ten, eleven, and twelve and found the personal discharge of a firearm allegation on count one not true. The court sentenced defendant to life with the possibility of parole, plus 25 years to life. Defendant filed a timely notice of appeal.
DISCUSSION
MOTION TO BIFURCATE
Defendant argues the trial court denied him due process and a fair trial by failing to grant his motion to bifurcate the gang expert’s testimony concerning the criminal street gang allegations. According to defendant, the eyewitness identification was “problematic,” made by individuals who had been “partying” and knew defendant but were affiliated with rival Norteño gang members. Therefore, had the gang evidence been bifurcated, the jury might not have convicted defendant on all counts.
Background
Defense counsel made a pretrial motion to bifurcate expert testimony concerning the gang enhancement. The trial court denied the motion.
The court, discussing a video tape in which defendant showed officers a gang tattoo, stated: “[N]ow I learn there was a tattoo and also an admission to the officers of connection to this particular Sureno [sic] set.” The court concluded: “[H]aving learned there are two new... aspects of the evidence of his gang connection, both of which are much stronger than the ones that I have heard before, and I think there is a sufficient showing that it is legitimate and, under [Evidence Code section] 352, it has probative value exceeding its prejudicial effect to introduce the subject of a gang issue in this case, and to go forward without bifurcating... the gang enhancement in this case. [¶] So that’s the ruling that I will make at this time and conclude that we will be inquiring of the jurors about their reactions to gangs and determining their ability to be an impartial juror.”
During trial, gang expert Kinney testified about defendant’s involvement with the Sureño gang. On January 22, 2005, defendant was stopped with other Sureño gang members and admitted he was a member. On June 18, 2005, defendant was in a park with a large contingent of gang members reported to be fighting and throwing gang signs. On November 11, 2005, defendant and other gang members were contacted by police. Defendant, who was wearing blue clothing, told officers he had been born into the gang and not jumped in. Defendant was not charged with a crime in any of these incidents.
Kinney also described two crimes committed by Sureños against Norteños. On September 7, 2003, Gerardo Rodriguez shot a Norteño gang member. He was subsequently convicted of assault with a firearm. On December 3, 2003, Poncho Bettencourt was a passenger in a car and shot at a group of people believed to be Norteños. He was convicted of attempted murder for that shooting. Defendant was not present during either incident.
The court gave the following instruction concerning evidence of gang activity: “Now, I mentioned at the beginning of this trial the following princip[le]: [¶] You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose and knowledge that are required to prove the gang related enhancements [that are] charged, or you may consider this evidence in considering whether the defendant had a motive to commit the crimes charged. You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crimes.”
Discussion
We review for abuse of discretion a trial court’s decision denying a motion to sever a gang charge or to bifurcate a gang enhancement. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) Evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation, including evidence of a gang’s territory, membership, signs, symbols, criminal enterprises, and rivalries, can help prove identity, motive, intent, or other issues pertinent to guilt of the charged crime. To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled and bifurcation would not be necessary. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050 (Hernandez).)
A gang enhancement differs from a prior conviction. A prior conviction allegation relates to the defendant’s status and may have no connection to the charged offense. By contrast, the criminal street gang enhancement is attached to the charged offense and is inextricably linked to that offense. Therefore, less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. (Hernandez, supra, 33 Cal.4th at p. 1048.)
Defendant argues bifurcation was necessary in his case for two reasons. First, defendant concedes he was identified as the shooter by several witnesses but argues the jury could have questioned those identifications. Defendant points out Ballard, the carjacking victim, could not positively identify defendant in court. However, in a photographic lineup, Ballard did identify defendant with complete confidence as the man who held a gun to him, threatened him, and took his money.
As for the positive identifications by Monica and Martinez, defendant concedes the two women knew him from high school and identified him as the shooter. However, defendant questions the identifications, noting Monica was Jam’s girlfriend and Martinez was a close family friend. Defendant also contends there “may have been some partying going on.” However, regardless of defendant’s qualms about the identifications, the jury and the trial court were in the best position to evaluate the veracity of what the witnesses testified they observed.
Second, defendant argues the gang expert’s testimony painted him as a crime-committing gangster when his only prior criminal record involved driving without a license. We disagree.
In People v. Albarran (2007) 149 Cal.App.4th 214, the Court of Appeal reversed the defendant’s conviction and granted a new trial after finding the admission of gang evidence prejudicial. The evidence included a threat to police officers, references to Mexican Mafia involvement, and identification of other gang members and unrelated crimes. The evidence was not relevant to the underlying charges but instead was introduced to show the defendant’s criminal disposition. (Id. at p. 228.) The only evidence of the defendant’s gang membership was the testimony of an officer that the defendant admitted he was an active member and that officers found gang graffiti around the defendant’s home. (Id. at p. 220.) The court found the prosecution failed to present sufficient evidence that the crimes had been committed with the intent to gain respect within the gang culture. (Id. at p. 227.)
Here, in contrast, ample evidence linked defendant to a gang and supported the inference that the crime was gang motivated. Indeed, defendant acknowledged as much in his testimony that Casper began shooting because Casper was having some problems with “northerners.” According to defendant’s testimony, Casper was acting for his gang. Just before the shots rang out, the shooter asked Andrew if he was a Norteño and said to Jam, “[H]ey, Hector.”
Given the testimony, evidence of defendant’s gang membership was relevant on the issues of intent, motive, and identity. The expert testified regarding other gang activity involving defendant that did not involve criminal charges. The evidence of gang offenses was offered to prove the gang enhancement, not defendant’s criminal disposition. Therefore, the trial court did not abuse its discretion in admitting the evidence. The evidence was probative and outweighed any potential prejudice from its admission. (Hernandez, supra, 33 Cal.4th at p. 1049.)
INSTRUCTIONAL ERROR
Gang Affiliation and Credibility
Defendant contends the trial court erred in instructing the jury that it could consider evidence of gang activity in evaluating the credibility of a witness. This instruction, defendant argues, told the jury he was not believable and denied him a fair trial.
Background
The court instructed the jury pursuant to CALCRIM No. 1403: “You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose and knowledge that are required to prove the gang related enhancements that’s [sic] charged, or you may consider this evidence in considering whether the defendant had a motive to commit the crimes charged. You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crimes.”
At trial, prosecution witness Jam was identified as a member of the Norteños. Defendant testified he belonged to a division of the Sureños. The gang expert testified gang members observe a code of silence whereby a gang member will not testify against a rival gang member but will let the gang settle disputes.
Discussion
Defendant argues CALCRIM No. 1403 “was unfair to [defendant] because it told the jury that his gang affiliation made him less believable and less credible.” In addition, defendant asserts, the witness credibility language contradicted the instruction’s purpose of limiting the jury’s consideration of the gang evidence to matters such as intent, motive, and knowledge. This contradiction was “likely confusing to the jury and probably led the jury to conclude that it should not believe [defendant].”
The instruction told the jury that gang activity by defendant and Jam could be considered in evaluating their credibility. The jury was specifically cautioned against using defendant’s gang activity to infer bad character or his disposition to commit a crime. The instruction merely informed the jury that gang activity was one factor to consider in evaluating their testimonies.
LESSER INCLUDED OFFENSE OF GROSSLY NEGLIGENT DISCHARGE OF A FIREARM
Defendant argues the court failed to instruct the jury sua sponte on the lesser included offense of grossly negligent discharge of a firearm on count fourteen, discharge of a firearm at an inhabited dwelling. This error, defendant contends, violated his right to due process and a fair trial, requiring reversal. The People concede the error but argue no prejudice occurred.
Background
In count fourteen defendant was charged with discharge of a firearm at an inhabited dwelling. (§ 246.) The court instructed the jury pursuant to CALJIC No. 965: “The defendant is charged in Count 14 with shooting at an inhabited house. To prove that the defendant is guilty of this crime, the People must prove that the defendant, first, willfully and maliciously shot a firearm, raising the issue of mental state, and, second, the defendant shot the firearm at an inhabited house. [¶] Someone commits an act willfully when he does it willingly or on purpose. [¶] Someone acts maliciously when he intentionally does a wrongful act or when he acts with the unlawful intent to disturb, defraud, annoy or injure someone else, which is the same definition I gave you in an earlier instruction. [¶] A house is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged shooting. A house includes any structure or garage that is attached to the house and functionally connected with it. [¶] The term, firearm, has been defined earlier.”
Discussion
Defendant argues section 246.3, grossly negligent discharge of a firearm, is a lesser included offense of section 246, discharge of a firearm at an inhabited dwelling. As the People concede, defendant is correct.
Section 246.3 provides: “Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison.” Section 246.3 is a necessarily lesser included offense of section 246. (People v. Overman (2005) 126 Cal.App.4th 1344, 1360-1361 (Overman).)
However, we reverse based on a trial court’s failure, sua sponte, to instruct on a necessarily included offense only if, after an examination of the entire case, it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (Overman, supra, 126 Cal.App.4th at p. 1363.) We find no such error in the present case.
The evidence revealed the victims were shot as they stood outside the house and attempted to run inside as the shots were being fired. Officers found bullet holes on the front side of the house and porch. The jury found defendant personally and intentionally discharged a firearm and caused great bodily injury to Monica Vidales or Emilio Vidales. The jury also found defendant guilty of attempting to murder Hector Jam.
Given the evidence and resulting verdicts, it is not reasonably probable defendant would have obtained a more favorable outcome had the court instructed on the lesser included offense of grossly negligent discharge of a firearm. The evidence unequivocally showed defendant shot toward an occupied building, wounding several people as they attempted to flee.
We find Overman, supra, 126 Cal.App.4th 1344, cited by defendant, distinguishable. In Overman, no witness testified as to where the defendant pointed his rifle at the time he fired it. No bullet holes or points of impact were found on any of the buildings. In addition, the defendant was an excellent marksman, suggesting he would have hit anything at which he was aiming. Therefore, the evidence supported the giving of the lesser included instruction on grossly negligent discharge of a firearm. (Overman, supra, 126 Cal.App.4th at pp. 1362-1363.) Here, bullet holes riddled the house, and the victims were standing outside the house and attempted to run as the shots were fired.
ABSTRACT OF JUDGMENT
Defendant, in his opening brief, argued the abstract of judgment should be corrected as to counts one, six, seven, eight, nine, and fourteen. After filing the brief, defendant withdrew the issue. The People, in their respondent’s brief filed after the letter withdrawing the issue, agree the abstract of judgment should be corrected.
Count One
The court sentenced defendant on count one to 15 years to life, to be served concurrently with all other sentences in this case. The abstract of judgment states only that this count was to run concurrently. Therefore, the abstract of judgment should be modified to show the correct sentence of 15 years to life.
Counts Six, Seven, Eight, and Nine
As to counts six, seven, eight, and nine, the jury found defendant guilty of violating section 12034, subdivision (c); found true the special allegation that defendant personally discharged a semiautomatic firearm; found true the special allegation that he personally and intentionally discharged a firearm and proximately caused great bodily injury; and found true the allegation that the crime was committed for the benefit of a criminal street gang. (§§ 12022.5, 12022.53, subd. (d), 186.22, subd. (b)(1)(C).) The trial court sentenced defendant to 25 years to life, plus 15 years to life, to be served concurrently.
Defendant argues the proper sentence for these counts should have been 15 years, not 15 years to life. The sentence range for a violation of section 12034, subdivision (c) is three, five, or seven years. The middle term is five years. Since the jury found defendant personally used a firearm within the meaning of section 12022.5, the offense was a violent offense. (§ 667.5, subdivision (c)(8).)
Section 186.22, subdivision (b)(1)(C) states: “Except as provided in paragraphs (4) and (5), any 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... be punished as follows: [¶]... [¶] (C) If the felony is a violent felony... the person shall be punished by an additional term of 10 years.”
Here, defendant’s sentence on counts six, seven, eight, and nine should have been five years (§ 12034, subd. (c), middle term), plus 10 years (§ 186.22, subd. (b)(1)(B)), plus 25 years to life (§ 12022.53, subd. (d)), for a total sentence of 25 years to life, plus 15 years. Therefore the abstract of judgment must be corrected to reflect this sentence.
Count Fourteen
Defendant contends the correct sentence for count fourteen, shooting at an inhabited building with the criminal street gang enhancement, is a determinate term of 15 years. (§§ 246, 186.22, subd. (b)(4)(B).) During sentencing, the trial court stated: “So Count 14 carries with it the term of 40 -- another 15 to life because it is a special singled out crime, along with carjacking... those are covered under 12022.53 of the Penal Code... more specifically, under the gang enhancement, those are covered, and they then raise the penalty for the crime, itself, to the term of 15 years to life, and then applying the 12022.53(d), 25 years to life, consecutive to that, 15, once again, we end up with 40 years to life.”
The trial court correctly sentenced defendant on count fourteen. Section 186.22, subdivision (b)(4)(B) states, in part: “Any person who is convicted of a felony enumerated in this paragraph 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, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶]... [¶] (B) Imprisonment in the state prison for 15 years, if the felony is a... felony violation of Section 246.” Accordingly, the court sentenced defendant to the determinate term of 15 years from section 186.22, subdivision (b)(4)(B) and the indeterminate term of life from section 186.22, subdivision (b)(4).
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect a sentence of 15 years to life, concurrent, on count one and sentences of 25 years to life, plus 15 years, concurrent, on counts six, seven, eight, and nine, and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: HULL, J., ROBIE, J.