Opinion
E052713 Super.Ct.No. RIF128568
12-07-2011
THE PEOPLE, Plaintiff and Respondent, v. DESHAUWN ANTHONY ROBINSON, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge. (Retired judge of the Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
Defendant DeShauwn Anthony Robinson was standing in line at a liquor store in the Edgemont area of Moreno Valley. The victim needed to reach past defendant to get an item, so he said, "Excuse me. Right behind you." Defendant responded, "Fuck you." Defendant then announced, "Edgemont" (or "This is Edgemont"), while pulling up his shirt to display a gun in his waistband. The victim left and got in his car, but defendant followed him and fired four to seven shots at him. The victim was unhurt — luckily, defendant's first shot misfired — but several shots did hit his car. As discussed in part I, post, a gang expert testified that the shooting was committed for the benefit of, and in association with, defendant's gang — Young International Paperchasers (YPC).
Defendant was found guilty of deliberate and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)), assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and shooting at an occupied motor vehicle (Pen. Code, § 246); a firearm enhancement (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subd. (c)) and a gang enhancement (Pen. Code, § 186.22, subd. (b)) to each of these three counts was found true. He was also found guilty of the crime of gang participation. (Pen. Code, § 186.22, subd. (a).)
One prior serious felony enhancement (Pen. Code, § 667, subd. (a)), one 1-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)), and one "strike" prior (Pen. Code, §§ 667, subds. (b)-(i)) were found true.
At sentencing, one of the firearm enhancements was stricken, at the People's request. The one-year prior prison term enhancement was also stricken. (See People v. Jones (1993) 5 Cal.4th 1142.)
According to the sentencing minute order and the abstract of judgment, defendant was sentenced to a total of 66 years 4 months to life.
Defendant contends:
1. There was insufficient evidence to support the gang enhancement to count 1 (attempted murder).
2. The trial court imposed an unauthorized sentence on the gang enhancement to count 1 (attempted murder).
3. Penal Code section 654 required the trial court to stay the sentence on count 3 (shooting at an occupied motor vehicle).
4. Penal Code section 654 required the trial court to stay the sentence on count 4 (gang participation).
We will hold that there was sufficient evidence to support the gang enhancement on count 1. The People concede that the sentence on the gang enhancement to count 1 was unauthorized. The People also concede that the sentence on count 3 had to be stayed. We will hold that the sentence on count 4 also had to be stayed. We will modify the sentence accordingly.
I
THE SUFFICIENCY OF THE EVIDENCE OF THE ELEMENTS OF
THE GANG ENHANCEMENT WITH RESPECT TO EITHER YPC OR EDGEMONT
Defendant argues there was evidence that YPC was a criminal street gang, but insufficient evidence that the crime was committed "for the benefit of, at the direction of, or in association with" YPC. Contrariwise, there was evidence that the crime was committed "for the benefit of, at the direction of, or in association with" Edgemont, but insufficient evidence that Edgemont was a criminal street gang.
A. Additional Factual and Procedural Background.
A gang expert testified that defendant was a member of YPC. He also testified that YPC had common signs or symbols, some of its members had committed predicate crimes, and the commission of similar crimes was one of its primary activities.
According to the gang expert, YPC's "turf" was the Edgemont area of Moreno Valley. He identified Edgemont Criminals as an "ally gang" of YPC. Both gangs share the same turf area.
Defendant identified himself as being from both YPC and Edgemont. One of the exhibits was a letter that defendant had written. On the outside was written "the Y and the E," which, the expert explained, stood for "YPC or Edgemont." The letter was signed, "YPC E's up," in which "E" stood for Edgemont. In the expert's opinion, if a YPC member said "Edgemont" during a confrontation on the turf that belonged to both YPC and Edgemont, that would benefit YPC by helping it maintain its turf. If defendant had said "YPC," that would equally have benefited Edgemont.
The expert was specifically asked:
"Q. Now, even though he yells out 'Edgemont,' that benefits YPC in the way that it would benefit Edgemont?
"A. Yes. Edgemont and YPC, at least since 2003, have been acting as one gang. Their membership has been merged. They're committing crimes together as one gang. Both Edgemont and YPC share the exact same turf area, and they are synonymous with each other."
B. Analysis.
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review 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.] We presume 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.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
A gang enhancement applies when the defendant committed the underlying felony (1) "for the benefit of, at the direction of, or in association with any criminal street gang" and (2) "with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (Pen. Code, § 186.22, subd. (b).)
"Criminal street gang," for this purpose, is defined as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more [enumerated] criminal acts . . . , having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (Pen. Code, § 186.22, subd. (f).)
Here, the gang expert testified that YPC and Edgemont were, in substance, one and the same gang. It appears that defendant himself perceived them as interchangeable, as shown by the letter he wrote in which he lumped them together. The expert explained fully why, in his opinion, a gang member yelling "Edgemont" during a confrontation would be acting for the benefit of, and in association with, YPC; and vice versa.
Certainly the jury did not have to believe the expert. It could have had a reasonable doubt as to whether defendant said "Edgemont" to refer to the neighborhood, rather than to a gang. Or it could have concluded that the expert was simply not credible. If it did believe the expert, however, his testimony was sufficient evidence that the crimes were committed "for the benefit of, at the direction of, or in association with" YPC.
Defendant also argues that there was insufficient evidence that he was acting "for the benefit of, at the direction of, or in association with" any gang, rather than for purely personal motives. Defendant, however, announced one of his gang's names. The gang expert testified that, as a result, the crime would benefit the gang. This was sufficient evidence. (See People v. Mendez (2010) 188 Cal.App.4th 47, 56-57 [expert testified that crime benefited gang, because defendant asked victim if he was "from anywhere" and announced gang name].)
II
SENTENCING ISSUES
A. Additional Factual and Procedural Background.
The trial court sentenced defendant as follows:
1. Attempted murder (count 1): 15 years to life (Pen. Code, § 664, subd. (a)), doubled pursuant to the "Three Strikes" law, for a total of 30 years to life.
a. Firearm enhancement: 20 years. (Pen. Code, § 12022.53, subd. (c).)
b. Gang enhancement: 10 years. (Pen. Code, § 186.22, subd. (b)(1)(C).)Total: A determinate term of 30 years, plus an indeterminate term of 30 years to life.
In its oral pronouncement of judgment, the trial court purported to impose 20 years — presumably the statutory term of 10 years, doubled pursuant to the Three Strikes law. This would be error. (People v. Hardy (1999) 73 Cal.App.4th 1429, 1433.)
The minute order and the abstract of judgment, however, reflect the correct, undoubled term of 10 years.
2. Assault with a firearm (count 2): Four years (the upper term) (Pen. Code, § 245, subd. (a)(2)), doubled pursuant to the Three Strikes law, for a total of eight years.
a. Firearm enhancement: 10 years, the upper term. (Pen. Code, § 12022.5, subd. (a).)
b. Gang enhancement: 10 years. (Pen. Code, § 186.22, subd. (b)(1)(C).) Total: A determinate term of 28 years, stayed pursuant to Penal Code section 654.
3. Shooting at an occupied vehicle (count 3): 15 years to life, based on the gang enhancement (Pen. Code, § 186.22, subd. (b)(4)(B)), doubled pursuant to the Three Strikes law, for a total of 30 years to life.
According to the oral pronouncement of judgment, the term on count 3 was not stayed. However, according to the minute order and the abstract of judgment, it was stayed pursuant to Penal Code section 654.
4. Gang participation (count 4): Eight months (one-third the midterm) (Pen. Code, § 186.22, subd. (a)), doubled pursuant to the Three Strikes law, for a total of one year four months.
5. Prior serious felony enhancement: Five years. (Pen. Code, § 667, subd. (a).) All terms were to be served consecutively.
B. Unauthorized Sentence on the Gang Enhancement to Count 1.
Defendant contends that the trial court imposed an unauthorized determinate sentence on the gang enhancement to count 1 (attempted murder). The People concede the error.
Penal Code section 186.22, subdivision (b)(1) provides various determinate terms to be imposed for a gang enhancement, depending on the nature of the underlying offense.
For example, under Penal Code section 186.22, subdivision (b)(1)(C), if a defendant is convicted of a violent felony — which includes attempted murder (Pen. Code, § 667.5, subd. (c)(12)), as well as any felony in which the defendant used a firearm (Pen. Code, § 667.5, subd. (c)(8)) — the penalty for a gang enhancement is 10 years.
However, Penal Code section 186.22, subdivision (b)(1) applies only "[e]xcept as provided in paragraphs (4) and (5) . . . ."
Penal Code section 186.22, subdivision (b)(5), as relevant here, provides: "[A]ny person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served."
In People v. Lopez (2005) 34 Cal.4th 1002, the California Supreme Court held that these sentencing schemes are alternative, not cumulative. (Id. at p. 1004.)
Accordingly, on the attempted murder count, the only authorized sentence was: (1) for attempted murder, 15 years to life, based on the gang enhancement, doubled pursuant to the Three Strikes law, for a total indeterminate term of 30 years to life; plus (2) a determinate term of 20 years for the applicable firearm enhancement. The trial court could not impose any additional determinate term for the gang enhancement.
C. Penal Code Section 654.
Defendant contends that Penal Code section 654 required the trial court to stay the sentences on count 3 (shooting at an occupied motor vehicle) and count 4 (gang participation).
Penal Code section 654, subdivision (a), as relevant here, 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."
"The test for determining whether [Penal Code] section 654 prohibits multiple punishment has long been established: 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of [Penal Code] section 654 depends on the intent and objective of the actor. . . .' [Citation.]" (People v. Britt (2004) 32 Cal.4th 944, 951-952.) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
"'"A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence." [Citation.]' [Citation.]"(People v. Sanchez (2009) 179 Cal.App.4th 1297, 1310 [Fourth Dist., Div. Two].)
The clerk's transcript and the reporter's transcript are in conflict with respect to whether the trial court stayed the sentence on count 3 (shooting at an occupied motor vehicle). As the People concede, however, it was required to do so.
On count 4, the crime of gang participation required proof that, among other things, defendant "willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of th[e] gang . . . ." (Pen. Code, § 186.22, subd. (a).) This requirement could be satisfied by evidence that defendant committed the current offense. (People v. Salcido (2007) 149 Cal.App.4th 356, 366-368; People v. Ngoun (2001) 88 Cal.App.4th 432, 435-437.) Indeed, in this case, there was no evidence that defendant promoted, furthered or assisted any other felonious criminal conduct by any other gang members.
As we held in People v. Sanchez, supra, 179 Cal.App.4th 1297, when a defendant is convicted of gang participation, and when the only evidence of the "promote/further/assist" element of gang participation is the defendant's commission of another felony, Penal Code section 654 prohibits punishment for both gang participation and the other felony. (Id. at pp. 1315-1316; accord, People v. Vu (2006) 143 Cal.App.4th 1009, 1032-1034; contra, People v. Herrera (1999) 70 Cal.App.4th 1456, 1466-1468 .)"[T]he underlying [felony] w[as] 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 [felony]." (Sanchez, supra, at p. 1315.)
This issue is currently before the California Supreme Court in People v. Mesa (2010) 186 Cal.App.4th 773, review granted October 27, 2010, S185688. Pending a decision in Mesa, stare decisis counsels us to adhere to our decision in Sanchez.
We conclude that the trial court was also required to stay the sentence on count 4 (gang participation).
III
DISPOSITION
The sentence is modified as follows:
The determinate term (whether 10 or 20 years) imposed on the gang enhancement to count 1 is stricken.
The terms imposed on counts 3 and 4 are stayed; this stay shall become permanent upon defendant's service of the remainder of his sentence.
Thus, the new total sentence is a determinate term of 25 years, plus an indeterminate term of 30 years to life.
Except as modified, the judgment is affirmed.
The superior court clerk is directed to prepare a new sentencing minute order and a new abstract of judgment reflecting these modifications. The superior court clerk is also directed to forward a certified copy of the new abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur: McKINSTER
Acting P.J.
KING
J.