Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, No. KA083788. Bruce F. Marrs, Judge.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant Jesse Romes.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Ray Aguilar.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E Winters and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Defendants Anthony Ray Aguilar and Jesse Romes appeal from judgments entered following a jury trial in which Aguilar was convicted of first degree murder and two counts of attempted murder and Romes was convicted of second degree murder and two counts of attempted murder, with gang and firearm discharge findings as to each defendant. Aguilar contends the evidence is insufficient to support the jury’s findings on the gang enhancement allegation (Pen. Code, § 186.22, subd. (b)(1); all further statutory references pertain to the Penal Code unless otherwise specified) and the trial court erred when it permitted the prosecution’s gang expert to testify, erroneously instructed with a “kill zone” theory, and failed to instruct sua sponte on the lesser included offense of felony assault. Romes contends the trial court’s rejection of his request for instructions on a lesser included offense and imposition of a weapons enhancement pursuant to section 12022.53, subdivision (d), violates California’s “multiple conviction rule” and federal protections against double jeopardy. Each defendant joins in the arguments of the other. We affirm.
BACKGROUND
On the evening of May 3, 2008, Jose Perez, Virginia Mercado and Angel Walker were standing outside a Baldwin Park residence. A car driven by Romes and occupied by Aguilar and Luis Real drove up. After someone inside the car said “NorthSide Bolen,” Aguilar and Real fired five or six shots at Perez, Mercado and Walker from about 15 feet away. Mercado was injured, Perez was killed.
The shooting occurred in territory claimed by the NorthSide Bolen gang (NorthSide). Romes and Aguilar were members of the Eastside Bolen gang (Eastside). The prosecution’s gang expert opined that NorthSide and Eastside were rivals, that drive-by shootings of suspected rival gang members is common, and that a shooting committed by members of one gang in territory claimed by another benefits the gang by intimidating the community so as to permit the gang to commit crimes without citizens reporting them to the police. In response to hypothetical questions, the expert testified that if gang members were going to go out to commit a drive-by shooting, they would talk about and plan it beforehand because “[t]hey’ve got to be on the same page as far as how to get away, what they are going to do....” They would have specified roles and would be punished if they failed to fulfill them. The expert testified that if gang members are in the car together and one has a firearm, generally he would let the others know he has it.
Defendants were convicted of the murder of Perez and attempted murder of Mercado and Walker.
DISCUSSION
1. Sufficiency of evidence for gang enhancement finding
Section 186.22, subdivision (b)(1), provides a sentence enhancement for anyone 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.”
Defendants admit evidence exists that the shootings on the evening of May 3, 2008 “[p]erhaps” benefitted their gang “by creating respect and fear in the community for the gang.” They contend the evidence was nevertheless insufficient to support the gang enhancement findings because it did not show the crimes were committed with the intent to assist in any criminal conduct by gang members “apart” from the current conviction. Defendants base their contention upon Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia).
In Garcia, supra,395 F.3d 1099, the federal appellate court read section 186.22, subdivision (b) as requiring a specific intent to facilitate conduct by gang members other than the charged offense. (Id. at pp. 1100-1101, 1103.) The statute does not include such a requirement. We reject Garcia’s interpretation of the statute and decline to follow it, as have other California appellate courts. (People v. Vazquez (2009) 178 Cal.App.4th 347, 353-354 “[we reject the Ninth Circuit’s attempt to write additional requirements into the statute”]; People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero (2006) 140 Cal.App.4th 15, 19.)
Apart from their attempt to modify the elements of the gang enhancement statute, defendants do not contest the sufficiency of the evidence supporting the gang enhancement in any respect.
2. Admissibility of Gang Evidence
Defendants contend they were prejudiced by the testimony of the prosecution gang expert because it invaded the province of the jury when the expert expressed an opinion relevant to “state of mind.” Specifically, they fault testimony in response to hypothetical questions in which the expert expressed his opinion that gang members would be expected to know and fulfill their roles and to tell others in a car if they were carrying weapons.
“An expert may offer opinion testimony if the subject is sufficiently beyond common experience that it would assist the trier of fact.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 651; Evid. Code, § 801, subd. (a); People v. Ochoa (2001) 26 Cal.4th 398, 438; People v. Gardeley (1996) 14 Cal.4th 605, 617.) Expert testimony “concerning the culture, habits, and psychology of gangs” meets this criterion. (People v. Valdez (1997) 58 Cal.App.4th 494, 506; People v. Gardeley, supra, at p. 617.) Such testimony may include an opinion “that oftentimes gang members traveling together may know if one of their group is armed” (People v. Killebrew, supra, at p. 658 [expert may testify as to “expectations of gang members in general when confronted with a specific action” (italics omitted)]) or that when “a gang member rides with other gang members he or she is aware of what will happen.” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1179; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370-1371 [evidence of gang psychology and sociology is proper expert testimony about what gang members would typically expect].) Such testimony may also address the ultimate issue in the case (Evid. Code, § 805; People v. Killebrew, supra, at p. 651) and may be based on hypothetical questions derived from the facts of the case (People v. Gardeley, supra, at p. 618).
Here, the expert testimony properly pertained only to the psychology and habits of hypothetical gang members in general when confronted with a specific situation, not to defendants’ own subjective knowledge or intent. Accordingly, defendants’ contention is rejected.
3. Convictions of Attempted Murder
Defendants contend the evidence was insufficient to support their attempted murder convictions because the court’s instruction regarding a “kill zone,” which permitted conviction for attempted murder of anyone within the zone of danger, erroneously allowed the jury to convict them of attempted murder on the flawed theory that existence of a kill zone establishes intent to kill. We disagree.
“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) Because there is rarely direct evidence of such intent, it must usually be shown from the circumstances of the attempt. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.) In People v. Bland (2002) 28 Cal.4th 313, the Supreme Court held that, although the doctrine of transferred intent does not apply to attempted murder, a defendant who performs an act such as shooting at a group of people that includes his primary target may be found to have concurrently intended to kill his primary target and everyone else within the “kill zone.” (Id. at pp. 329-330.)
Witness testimony established that defendants collectively fired at least five shots at Perez, Mercado and Walker, killing Perez and injuring Mercado. Mercado was an arm’s length from Perez. The court instructed the jury with CALJIC No. 8.66.1, which informed the jury that evidence showing a defendant primarily intended to kill a particular person might also support an intent to kill all others within that “zone of risk,” depending on the nature and scope of the attack on the targeted victim.
As given to the jury, CALJIC No. 8.66.1 stated: “A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the ‘kill zone.’ The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim’s vicinity.
Based on the factual circumstances of this case the court was correct in giving this instruction. Defendants’ argument that the evidence established, at most, intent to kill only Perez would be more compelling if they had fired only at him. They did not, but sprayed five or six bullets at three people-Perez, Mercado and Walker, hitting Mercado as well as Perez. A jury could reasonably conclude beyond a reasonable doubt that defendants concurrently intended to kill one, two, or all three people in the immediate vicinity. (People v. Bland, supra,28 Cal.4th 313, 330 [“‘When the defendant escalated his mode of attack from a single bullet aimed at A’s head to a hail of bullets..., the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A’s immediate vicinity to ensure A’s death.’”].)
4. The trial court had no sua sponte duty to instruct on assault with a firearm as a lesser included offense of attempted murder
Defendants contend the court had a sua sponte duty to instruct on the lesser included offense of assault with a firearm as an alternative to attempted murder. We disagree.
A trial court must instruct on lesser included offenses supported by substantial evidence. (People v. Barton (1995) 12 Cal.4th 186, 190, 203.) We apply two tests to decide whether an offense is included in another. The first, the statutory elements test, asks whether all elements constituting the lesser offense are included in the elements of the greater offense. If the greater crime cannot be committed without also committing the lesser offense, the latter is included within the former. (People v. Montoya (2004) 33 Cal.4th 1031, 1034; People v. Sanchez (2001) 24 Cal.4th 983, 988.) Defendants acknowledge that assault with a firearm is not a lesser included offense of murder under the statutory elements test because murder, the unlawful killing of a human being by amy means with malice aforethought (§ 187), can be attempted without a firearm.
The second test, termed the accusatory pleading test, examines charging allegations in the operative information to determine whether they describe the crime in such a way that if done in the manner alleged the lesser offense must necessarily be committed. (People v. Sloan (2007) 42 Cal.4th 110, 117; People v. Montoya, supra, 33 Cal.4th at p. 1035.) Here, the People alleged in count 1 that “On or about May 3, 2008,... [defendants]... did unlawfully and with malice aforethought murder Jose Perez, a human being,” and in counts 2 and 3 that defendants “did unlawfully and with malice aforethought attempt to murder” Mercado and Walker. Use of a firearm is not mentioned. Defendants accordingly acknowledge that assault with a firearm is not an included offense of the attempted murders described by the charging allegations.
But the information contains more than charging allegations, it also contains enhancement allegations, wherein the People alleged that Aguilar personally and intentionally used a firearm within the meaning of subdivisions (b), (c), (d) and (e)(1) of section 12022.53. (It was not alleged that Romes used a firearm. He was convicted on an aiding and abetting theory.) Section12022.53 prescribes additional punishment for an offense in which a firearm is used. Defendants argue the firearm enhancement allegations should be treated as charging allegations to determine whether assault with a firearm is a lesser included offense of attempted murder.
Our Supreme Court has specifically instructed that enhancement allegations are not to be considered in evaluating lesser included offense questions. (People v. Wolcott (1983) 34 Cal.3d 92, 101 (Wolcott).) It stated that a contrary rule would “confuse the criminal trial. Present procedure contemplates that the trier of fact first determines whether the defendant is guilty of the charged offense or a lesser included offense, and only then decides the truth of any enhancements. [Citation.] The sentencing judge then decides whether to use the fact found as an enhancement to impose the upper term of the sentence, or to enhance the sentence. [Citation.] This orderly, step-by-step procedure would become muddled if evidence of the enhancement must be considered in determining guilt of a lesser offense. ” (Ibid., fn. omitted.) The rule that enhancement allegations not be considered as part of the accusatory pleading for purposes of identifying lesser included offenses was implicitly reaffirmed in People v. Reed (2006) 38 Cal.4th 1224, 1235 (Moreno, J., conc. & dis.), People v. Sloan, supra, 42 Cal.4th at p. 114, and People v. Izaguirre (2007) 42 Cal.4th 126, 128, 130, fn. 4.)
Defendants acknowledge the rule of Wolcott but argue its reasoning was superseded by Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Ring v. Arizona (2002) 536 U.S. 584, Sattazahn v. Pennsylvania (2003) 537 U.S. 101, Blakely v. Washington (2004) 542 U.S. 296, and United States v. Booker (2005) 543 U.S. 220. We disagree.
The federal Constitution proscribes deprivation of liberty without “due process of law” (U.S. Const., Amend. 14) and guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” (U.S. Const., Amend. 14.) “Taken together, these rights indisputably entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ [Citations.]” (Apprendi v. New Jersey, supra, 530 U.S. at pp. 476-477.) The rule of Apprendi is that just as the elements of a crime must be proved beyond a reasonable doubt because they expose the defendant to punishment, the elements of a sentence enhancement must be proved beyond a reasonable doubt if they expose the defendant to increased punishment. (Id. at pp. 474-476, 482-484.) Apprendi “treated a sentence enhancement as the functional equivalent of a crime. [Citation.] To put it more accurately, Apprendi treated the crime together with its sentence enhancement as the ‘functional equivalent’ of a single ‘greater’ crime. [Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 326.)
Defendants do not argue the rule of Apprendi applies here-it is undisputed the firearm enhancements were proved to a jury beyond a reasonable doubt. They argue its approach should apply, that a sentence enhancement should be treated as the functional equivalent of an element of the charged crime for purposes of identifying lesser included offenses.
Nothing in Apprendi or its progeny suggests such a practice. Ring v. Arizona, supra, 536 U.S. 584, applying the rule of Apprendi, held that aggravating circumstances that make a defendant eligible for the death penalty must be tried to a jury. (536 U.S. at p. 609.) Blakely v. Washington held that aggravating circumstances that subjected the defendant to a sentence three years above the statutory maximum must be tried to a jury. (542 U.S. at p. 303.) United States v. Booker extended the reasoning of Blakely to sentences imposed pursuant to the Federal Sentencing Guidelines. (543 U.S. at p. 237.) Sattazahn v. Pennsylvania extended the rule of Ring, holding that if a jury “concludes that a State has failed to meet its burden of proving the existence of one or more aggravating circumstances, double-jeopardy protections attach to that ‘acquittal’.” (537 U.S. at p. 112.)
In each case, the high court reasoned that the label “sentence enhancement” provides no principled basis for distinguishing elements of an enhancement from elements of the crime charged: Any fact that exposes a defendant to increased or multiple punishment must be proven to a jury beyond a reasonable doubt. (E.g., United States v. Booker, supra, 543 U.S. at p. 231 [“The fact that New Jersey labeled the hate crime a ‘sentence enhancement’ rather than a separate criminal act was irrelevant for constitutional purposes.”]; Sattazahn v. Pennsylvania, supra, 537 U.S. at pp. 111-112.) But treating a sentence enhancement as functionally equivalent to a crime element to determine under what circumstances a defendant may be deprived of liberty does not make it an element of the crime for purposes of identifying lesser included offenses. (People v. Anderson (2009) 47 Cal.4th 92, 117 [“to say that a penalty provision must sometimes be treated as the ‘functional equivalent’ of an element for claims arising under the federal Constitution does not mean such provisions are now elements for all purposes under California law” (fn. omitted)].) Nothing in Apprendi or its progeny affects the rule of Wolcott that “an allegation of firearm use under section 12022.5 should not be considered in determining lesser included offense.” (Wolcott, supra, 34 Cal.3d at p. 101; see Anderson, supra, 47 Cal.4th at p. 117, fn. 11 [“the constitutional requirements of Apprendi apply only when a penalty or enhancement has the potential to increase a defendant’s punishment beyond the statutory maximum. [Citation.] When such an increase is not possible, Apprendi does not apply.”]) Therefore, defendants’ contentions that sentence enhancements must be considered when applying the accusatory pleading test must be rejected.
5. Imposition of a sentencing enhancement under subdivision (d) of section 12022.53 did not violate the “multiple conviction” rule
Twenty-five years were added to defendants’ sentences pursuant to section 12022.53, subdivision (d), which states that any person who intentionally discharges a firearm and proximately causes great bodily injury or death during the commission of an enumerated felony shall be punished by the additional, consecutive sentence. Defendants argue this enhancement violates the multiple conviction rule because proximate causation of death is already an element of the underlying offense of murder. We disagree.
“‘[M]ultiple convictions may not be based on necessarily included offenses. [Citations.]’ [Citation.] ‘“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.]” (People v. Ortega (1998) 19 Cal.4th 686, 692.) But “enhancements are not legal elements of the offenses to which they attach” (Izaguirre, supra, 42 Cal.4th at p. 128) and “should not be considered in defining necessarily included offenses under the multiple conviction rule.” (People v. Anderson, supra,47 Cal.4th at p. 118; People v. Sloan, supra, 42 Cal.4th at p. 123.)
Acknowledging that the California Supreme Court rejected materially identical arguments in Izaguirre and Sloan, defendants raise the argument here to preserve the issue for federal review. Given the Supreme Court’s clear instruction on this issue, we reject the argument.
6. Imposition of a sentencing enhancement under subdivision (d) of section 12022.53 did not put defendants twice in jeopardy
Finally, defendants argue that imposition of the 25-year sentence enhancement violates the Double Jeopardy Clause of the federal Constitution. They acknowledge that the United States Supreme Court held in Missouri v. Hunter (1983) 459 U.S. 359, 368-369 that the Double Jeopardy Clause does not prevent cumulative sentences imposed in a single trial but argue the High Court will now reverse itself in light of its more recent decisions in Apprendi and Sattazahn, supra. While we await that development we must reject defendants’ argument.
DISPOSITION
The judgments are affirmed.
We concur: MALLANO, P. J. JOHNSON, J.
“Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a ‘kill zone’ zone of risk is an issue to be decided by you.”