Opinion
B223322
08-15-2011
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM P. ROSAS, Defendant and Appellant.
Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. BA298155)
APPEAL from a judgment of the Superior Court of Los Angeles County, William R. Pounders, Judge. Affirmed as modified.
Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
The jury convicted defendant William P. Rosas of one count of first degree murder (Pen. Code, § 187, subd. (a); count 1), three counts of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a); counts 2, 4, 5), and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1); count 7). The jury also found true firearm and criminal street gang enhancement allegations as to counts 1, 2, 4, and 5.
All further undesignated statutory references are to the Penal Code.
As to counts 1 and 2, the jury found that a principal personally and intentionally discharged a firearm causing death or great bodily injury (§ 12022.53, subds. (d), (e)(1)), personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1)), and personally used a firearm (§ 12022.53, subds. (b), (e)).
As to counts 4 and 5, the jury found that a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1)), and personally used a firearm (§ 12022.53, subds. (b), (e)).
As to counts 1, 2, 4, and 5, the jury found that defendant committed the offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(A).)
In this appeal from the judgment, defendant contends that: (1) his Wheeler/Batson motion was erroneously denied; (2) he was entitled to an instruction on assault with a deadly weapon as a lesser related offense of attempted murder; (3) the evidence is insufficient to support a finding of great bodily injury with regard to the firearm enhancement allegation in count 2 (§ 12022.53, subds. (d), (e)(1)); and (4) his sentence in count 7 is erroneous. After modifying the sentence in count 7, we affirm the judgment as modified.
People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79.
BACKGROUND
Defendant does not challenge the sufficiency of the evidence to support his convictions of murder, attempted murder, and possession of a firearm by a felon. We therefore will focus on the relevant facts necessary for the resolution of this appeal.
The evidence showed that defendant was involved in two gang-related shootings: (1) a January 5, 2006 shooting at an apartment stairway in which the victims, Armando Flores (count 4) and Pablo Pineda (count 5), were not injured; and (2) a January 7, 2006 shooting of a vehicle in which the driver, Miguel Padilla (count 1), was killed, and a passenger, Patricia Quiroa (count 2), was injured.
The evidence further showed that defendant belonged to the BMS gang, for whose benefit the shootings were committed. The victims in the apartment stairway shooting (Flores and Pineda) were targeted as members of a tagging crew of the 38th Street gang, which had shot at defendant's cousin earlier that day. The victims in the car shooting were targeted because the driver (Padilla) was mistaken for a 38th Street gang member.
The prosecution connected defendant to both shootings through the incriminating statements he made during three Los Angeles Police Department interviews. In his February 2, 2006 interview, defendant admitted his involvement in the apartment stairway shooting. He stated as follows: After his cousin was shot at by 38th Street gang members, defendant and a BMS gang member named "Menace" went to the apartment building where 38th Street gang members lived. Defendant was carrying a "rifle" or black "Mini 14" under his "serape" or "poncho," and Menace was carrying a "chrome" "9-millimeter" handgun. After someone began shooting at them, defendant pulled out his weapon and began "shooting at the air over their heads." Defendant fired five to seven rounds and Menace fired five rounds.
In his March 27, 2006 interview, defendant confirmed his involvement in the apartment stairway shooting, but denied any involvement in the car shooting.
In his April 4, 2006 interview, defendant admitted his involvement in the car shooting, but gave conflicting accounts. According to one version, defendant was driving the gray car that was used in the shooting. "Slips," a BMS gang member, was in the passenger's seat and had a nine-millimeter handgun. Slips leaned out of the car window and fired at the male Hispanic driver (Padilla) of a white Tahoe. In another version, defendant was driving the gray car and Slips and a BMS gang member named "Casper" were passengers. Casper began shooting "a .380" at someone "from 38." However, at the conclusion of the April 4 interview, defendant denied any involvement in the car shooting and claimed that he was "making [it] up because you fucking said that I was there, that I was there. I wasn't even there, sir."
DISCUSSION
I. The Wheeler/Batson Motion
After the prosecutor exercised his eighth peremptory challenge during voir dire, defense counsel objected pursuant to Batson and Wheeler that four of those challenges had been exercised against African-American jurors (juror numbers H-7636, G-2628, B-6062, & C-2155). The trial court found there was a prima facie case of discrimination and required the prosecutor to explain the four challenges. After the prosecutor provided his reasons, the trial court concluded that the reasons were race-neutral and that defendant had failed to prove a discriminatory motive.
Defendant contends on appeal that the trial court erred in denying his Wheeler/Batson motion. We conclude the contention lacks merit.
A. The Applicable Law
When a party makes a Wheeler motion, "First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.]" (People v. Lenix (2008) 44 Cal.4th 602, 612-613.) A defendant establishes a prima facie case "by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Johnson v. California (2005) 545 U.S. 162, 170.)
"If the court finds a prima facie case has been shown, the burden shifts to the prosecution to provide race-neutral reasons for the questioned peremptory challenges. [(People v. Turner (1994) 8 Cal.4th 137, 164.)] The prosecutor need only identify facially valid race-neutral reasons why the prospective jurors were excused. (Purkett v. Elem (1995) 514 U.S. 765, 767; People v. Silva (2001) 25 Cal.4th 345, 384.) The explanations need not justify a challenge for cause. (Turner, supra, 8 Cal.4th at p. 165.) 'Jurors may be excused based on "hunches" and even "arbitrary" exclusion is permissible, so long as the reasons are not based on impermissible group bias. (People v. Hall (1983) 35 Cal.3d 161, 170.)' (Turner, supra, 8 Cal.4th at p. 165.) [¶] 'While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection.' (Turner, supra, 8 Cal.4th at p. 168.)" (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122; People v. Watson (2008) 43 Cal.4th 652, 670.) Counsel also may properly rely on a juror's body language or manner of answering questions in exercising a challenge. (People v. Reynoso (2003) 31 Cal.4th 903, 917.)
"Review of a trial court's denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] 'We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges "'with great restraint.'" [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]'" (People v. Lenix, supra, 44 Cal.4th at pp. 613-614.)
B. The Prosecutor's Stated Explanations for the Four Disputed Challenges
The prosecutor gave the following explanations for dismissing the four prospective African-American jurors.
1. Juror Number H-7636
Juror number H-7636 is a retired insurance agent who recently separated from his third wife. He is a "lay minister graduate" and volunteers at his church. When his nephew was arrested and convicted of robbery about 12 years ago, he visited his nephew in prison.
The prosecutor excused juror number H-7636 because "he was a lay minister and separated from his third wife." "[F]rankly, I apologize if there are any lay ministers in the room, but I'm not a big fan of people calling themselves lay ministers, obviously. I think all kinds of people can do that. You can get a card in the mail. I don't know what it says that he's now separated from his third wife, but I mean in addition to that, I actually don't like jurors in gang cases that have had gang members in their family. You know, he visits his nephew in jail, it's his sister's son, convicted of a 211. But I would have kicked him off, Your Honor, merely after reading that he was a lay minister and separated from his third wife."
2. Juror Number G-2628
Juror number G-2628 is a court receptionist and former court security guard. Her son, who was "murdered in his 20's," belonged to a gang and was convicted as a teenager of a gun-related crime. The person responsible for her son's death was not prosecuted, and she is angry with the district attorney's office (which the juror repeatedly referred to as the public defender's office) for treating her son's death as an accidental shooting rather than a murder.
The prosecutor excused juror number G-2628 because she was a security guard and "I personally am not impressed with their ability to be a juror." A security guard is "usually somebody who can stay in a parking lot all night. I often have had security guards as defendants. And then there's the animosity to the district attorney's office. I think she was repeatedly confused" between the district attorney's office and the public defender's office.
3. Juror Number B-6062
When juror number B-6062 was asked whether race would not affect her judgment in this case, she responded, "No." When the juror was asked to explain her answer, she stated that she "wouldn't think that race would have any reason about finding out whether a person was innocent or guilty." The prosecutor then inquired: "There was a negative in there, so the answer would be, yes, you could be sure that it would not in any way affect your judgment?" The juror replied, "I know it's kind of a long question, but it should have been a no for me."
When juror number B-6062 was asked if she could "follow the instructions that one witness, if believed, is sufficient to prove a fact," she responded, "No." When the juror was asked to explain her answer, she stated, "I was thinking about something else, but one witness like we did mention with domestic violence, could only be one witness and you only have two people there, and the evidence you would have to make a decision between those two people."
Juror number B-6062 served on a prior jury that did not reach a verdict. She stated that she "kind of went along with the majority of the people. The attorney did talk to each one of us individually, and that jury was dismissed."
The prosecutor excused juror number B-6062 because "[s]he indicated that she didn't agree with the one witness rule, which is obviously very important to my case. She thought race would affect her decision. I felt like she wasn't paying attention. She was a member of a hung jury, and then she said she kind of went along with the majority."
4. Juror Number C-2155
Juror number C-2155 knew Austin Dove, the defense attorney for a codefendant whose case was later severed from defendant's case. Dove had represented the juror's brother-in-law in a prior criminal matter in which he was acquitted. The juror stated that she was satisfied with the outcome of that case, and her prior acquaintance with Dove would not affect her ability to be fair in this trial.
The prosecutor excused juror number C-2155 because of her prior acquaintance with Dove. The prosecutor believed that the juror would "have a preconceived notion of the credibility of the attorney."
C. The Trial Court's Ruling Is Supported by Substantial Evidence
As previously stated, we review the trial court's denial of a Wheeler-Batson motion under a deferential standard, and examine "only whether substantial evidence supports its conclusions." (People v. Lenix, supra, 44 Cal.4th at p. 613.) As long as the prosecutor's reason is nondiscriminatory, we need not agree with its logic. (See People v. Cruz (2008) 44 Cal.4th 636, 655 ["'A reason that makes no sense is nonetheless "sincere and legitimate" as long as it does not deny equal protection.'"].)
Under this standard, we conclude the trial court's determination that the prosecutor's four peremptory challenges were not racially motivated was within the court's discretion, as supported by the record.
1. Juror Number H-7636
The trial court concluded that the prosecutor's race-neutral reasons for dismissing juror number H-7636—he is a lay minister, is separated from his third wife, and had visited his nephew, a convicted felon, in prison—were not a pretext for discrimination. The trial court's determination is supported by substantial evidence. Regardless of whether a lay minister who is separated from his third wife would possess the qualifications that are important to the prosecution, we defer to the trial court's determination that the prosecutor's subjective views were held in good faith and were not a pretext for discrimination.
Moreover, the conviction and incarceration of the juror's nephew is a legitimate, race-neutral reason for dismissal. (People v. Lomax (2010) 49 Cal.4th 530, 573; People v. Farnam (2002) 28 Cal.4th 107, 138.) Defendant disagrees, based on the prosecutor's statement that he does not "like jurors in gang cases that have had gang members in their family." Defendant points out that this statement is inaccurate because, according to juror number H-7636's questionnaire, he does not have any relatives who are gang members. However, we are not persuaded that the nephew's purported gang membership was a factor in the juror's dismissal. The prosecutor's broad philosophical statement, "I actually don't like jurors in gang cases that have had gang members in their family," was immediately followed by the more specific statement, "You know, he visits his nephew in jail, it's his sister's son, convicted of a 211." Reading the statements together, we conclude that the prosecutor did not rely on the nephew's supposed gang membership, but on his conviction and incarceration.
Defendant contends that the prosecutor should have conducted further voir dire to clarify the juror's responses. Defendant cites Miller-El v. Dretke (2005) 545 U.S. 231 (Miller-El), in which the prosecutor had removed a Black juror who, according to his voir dire testimony, was an "outspoken" advocate of the death penalty. (Id. at p. 244.) Given the juror's support of the death penalty, the Supreme Court found the prosecutor's stated reasons for removal—that the juror would not vote for the death penalty if rehabilitation was possible—were based on either a misunderstanding or a mischaracterization of the voir dire testimony and therefore were not credible. In light of the discrepancy between the voir dire testimony and the prosecution's stated reasons, the Court questioned the prosecutor's failure to engage in further voir dire to clarify the matter, stating: "Thus, [the prosecutor] simply mischaracterized [the prospective juror's] testimony. [The prosecutor] represented that [the prospective juror] said he would not vote for death if rehabilitation was possible, whereas [the prospective juror] unequivocally stated that he could impose the death penalty regardless of the possibility of rehabilitation. Perhaps [the prosecutor] misunderstood, but unless he had an ulterior reason for keeping [the prospective juror] off the jury we think he would have proceeded differently. In light of [the prospective juror's] outspoken support for the death penalty, we expect the prosecutor would have cleared up any misunderstanding by asking further questions before getting to the point of exercising a strike." (Ibid.)
In contrast with Miller-El, where the prosecutor's explanation for dismissing a juror conflicted with the voir dire responses, in this case, the prosecutor's stated reasons for dismissing juror number H-7636 are supported by the record. In the absence of a discrepancy such as the one that existed in Miller-El, a prosecutor's failure to ask further questions does not in itself give rise to a reasonable inference that the stated reasons were a sham and a pretext for discrimination.
2. Juror Number G-2628
The trial court stated that juror number G-2628 could have been dismissed for cause because of her animosity toward the district attorney's office for failing to prosecute her son's alleged murderer. The trial court found that the juror had exhibited "clear bias."
The record supports the trial court's finding. It is reasonable to conclude that any person in the same unfortunate situation would have difficulty serving as a neutral juror in a murder trial.
3. Juror Number B-6062
The trial court found that juror number B-6062—who disagreed with the one-witness rule, stated that race would affect her verdict, and previously served on a jury that did not reach a verdict—was excused for "a specific bias, not race bias." The court stated: "[N]o verdict on the case. I find that to be a significant reason as well as the answers that she — she actually said she could not set aside the race, national origin or religious affiliation as well as not making a decision based on one person's answers, and I do find that to be a specific bias, not race bias."
The trial court's findings are supported by the record. When juror number B-6062 was asked to explain her questionnaire responses, she gave confusing answers and appeared to reaffirm that race would be a factor in her decision. Even assuming that juror number B-6062 did not understand the prosecutor's questions, her inability to understand is a proper basis for challenge. (People v. Turner, supra, 8 Cal.4th at p. 169, overruled on different grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) In addition, juror number B-6062 had previously served on a hung jury. A juror's "experience of sitting on a hung jury constitutes a legitimate concern for the prosecution, which seeks a jury that can reach a unanimous verdict." (People v. Turner, supra, 8 Cal.4th at p. 170.)
4. Juror Number C-2155
The trial court found that juror number C-2155's prior acquaintance with a codefendant's attorney was a valid reason for excusal. The record supports this finding. Given that the codefendant's attorney had obtained a successful outcome for the juror's brother-in-law, it is reasonable to assume that the juror would be inclined to find the same attorney credible in this case. (See People v. Hamilton (2009) 45 Cal.4th 863, 906 [trial court reasonably concluded that juror's familiarity with a defense witness was a race-neutral reason for excusal].)
II. Instructional Error
With regard to the apartment stairway shooting, the prosecution charged defendant with two counts of attempted willful, deliberate, and premeditated murder (counts 4 & 5). On counts 4 and 5, the trial court instructed the jury on attempted voluntary manslaughter as a lesser included offense of attempted murder. The jury convicted defendant of attempted willful, deliberate, and premeditated murder on counts 4 and 5.
On appeal, defendant contends that the trial court erroneously denied his request to instruct the jury on assault with a deadly weapon as a lesser related offense of attempted murder in counts 4 and 5. He argues that because the prosecutor did not object to the request, the trial court was required to give the instruction. (Citing People v. Birks (1998) 19 Cal.4th 108, 136.) He further contends that the denial of the instruction was prejudicial because a jury reasonably could have found that he was not the initial aggressor and had fired his weapon in the air only after shots had been fired at him. We are not persuaded.
A. The Trial Court Instructed on Attempted Voluntary Manslaughter as a Lesser Included Offense of Attempted Murder
"The general rule is that in a criminal case the trial court must, on its own motion, even without request, instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Hood (1969) 1 Cal.3d 444, 449.) Further, because section 1159 provides that a jury may find a defendant guilty of any offense, the commission of which is necessarily included in the charged offense, the court must also sua sponte instruct fully on all lesser necessarily included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 161.)" (People v. Stewart (2000) 77 Cal.App.4th 785, 795.)
In this case, the trial court instructed on attempted voluntary manslaughter as a lesser included offense of attempted murder in counts 4 and 5. The trial court gave the attempted voluntary manslaughter instruction because of the possibility that, after listening to defendant's taped interview statements, the jury could find that defendant was not the initial aggressor in the apartment stairway shooting.
Although a transcript had been prepared of defendant's interview statements, it was undisputed that the transcript was not entirely accurate because of the poor quality of the tape recording. It was also undisputed that the jury would have to listen to the tape recording in order to decipher it. Defense counsel asserted that if, after listening to the tape, the jury found that defendant was not the initial aggressor and had fired his weapon in the air in response to being fired upon by unknown persons, the evidence would support a finding of attempted voluntary manslaughter rather than attempted murder. Defense counsel urged the court to give the attempted voluntary manslaughter instruction as a lesser included offense of attempted murder because, "once you hear the detective's full testimony on cross," it will be clear "that my client was not the initial aggressor and may not have been acting with premeditation, which would negate the attempted murder and possibly allow for a — I believe it's attempted voluntary manslaughter, which requires an honest but unreasonable belief that one needs to protect one's self."
The trial court agreed that, depending on how the jury interpreted defendant's taped interview statements, the evidence could support a finding that defendant was not the initial aggressor in the apartment stairway shooting. In light of that possibility, the trial court agreed to instruct on attempted voluntary manslaughter: "I think you're correct. I think I need to give that instruction based on that interpretation, whether it's right or wrong. The jury has to decide what the interpretation is. But if they interpret it in your direction, they need to have the law that would apply, and that would be the attempt[ed] voluntary manslaughter. So that — in my mind, that resolves one of the issues that we were going to discuss about instructions. But we probably should turn first to finishing the evidence."
B. Defendant Has Failed to Establish That the Refusal to Instruct on Assault with a Deadly Weapon Was Prejudicial Error
The trial court denied defendant's request to instruct on assault with a deadly weapon, which, unlike attempted voluntary manslaughter, is not a lesser included offense of attempted murder. (People v. Nelson (2011) 51 Cal.4th 198, 215 [assault with a deadly weapon is not a lesser included offense of attempted murder, but is a lesser related offense].)
Defendant contends that because the prosecutor did not expressly object to his request, he was entitled to the instruction because the evidence reasonably supported his conviction of the lesser related offense of assault with a deadly weapon. He relies on People v. Birks, supra, 19 Cal.4th 108, in which the California Supreme Court "overruled its holding in People v. Geiger (1984) 35 Cal.3d 510 that a defendant's unilateral request for a related-offense instruction must be honored over the prosecution's objection. (Birks, at p. 136; see People v. Rundle (2008) 43 Cal.4th 76, 146-147; People v. Yeoman (2003) 31 Cal.4th 93, 129.)" (People v. Nelson, supra, 51 Cal.4th at p. 215.)
For purposes of this appeal, it is not necessary to determine whether the prosecutor did or did not object to the request. Even assuming the prosecutor did not object, defendant is incapable of establishing the existence of prejudicial error. (See People v. Farrow (1993) 13 Cal.App.4th 1606, 1626 [failure to instruct on lesser related offenses of trespass and/or vandalism was not prejudicial error in light of jury's return of guilty verdicts on the charged robbery].) In light of the jury's guilty verdicts on the attempted murder charges, the jury necessarily disagreed with defense counsel's interpretation of the taped interview statements. By defendant's own theory of the case, the jury could not have returned guilty verdicts on the attempted murder charges without rejecting the scenario that he fired his weapon in the air after shots were fired at him. By convicting defendant of attempted murder on counts 4 and 5, the jury clearly found that he was the initial aggressor who intended to kill the victims and did not intend to merely commit an assault. Accordingly, defendant has failed to establish the existence of prejudicial instructional error.
In light of our rejection of defendant's claim of instructional error, we need not discuss his constitutional claim of denial of due process.
III. The Section 12022.53 Firearm Enhancement
In relevant part, section 12022.53, subdivision (d) ("subdivision (d)") authorizes an enhancement of 25 years to life where the defendant "personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice."
With regard to the car shooting, defendant received two enhancements under subdivision (d): one enhancement for his conviction in count 1 for the first degree murder of the driver, Miguel Padilla, and another enhancement for his conviction in count 2 for the attempted murder of the passenger, Patricia Quiroa. Defendant contends that the enhancement in count 2 must be reversed for insufficient evidence of great bodily injury to Quiroa, who "received only a glancing wound to the skin of her neck and she did not report any measure of pain or lasting ill effects, . . . [her] injury cannot qualify as great bodily injury within the meaning of Penal Code section 12022.7."
By focusing solely on a perceived lack of great bodily injury to Quiroa, defendant has misread the enhancement statute. The subdivision (d) enhancement applies to harm done to "any person other than an accomplice," and is not limited to harm done to a victim. As the Supreme Court stated in People v. Oates (2004) 32 Cal.4th 1048, 1056 (Oates), "the Legislature knows how to limit enhancements to harm done to a 'victim' when that is its intent. (See § 12022.8 [imposing enhanced punishment for 'inflict[ing] great bodily injury . . . on any victim']; see also People v. Miller (1977) 18 Cal.3d 873, 881, fn. 5 [enhancement statute that 'expressly provides for its application upon great bodily injury to a "victim" rather than to a "person"' does not apply 'in the case of injury to persons who, unfortunately, are incidentally caught up in the events constituting the crime.'].)"
The facts of Oates are instructive. The defendant, Jimmie Lee Oates, had fired two shots at a group of five people, and had hit and injured only one person, Gustavo Barrera. Oates was convicted of five counts of attempted premeditated murder and received multiple enhancements under subdivision (d). The issue on appeal was whether multiple enhancements under subdivision (d) could be imposed where only one person was injured. The appellate court held that only one enhancement could be imposed under subdivision (d), but the Supreme Court reversed, stating that "imposition of multiple subdivision (d) enhancements is proper under these circumstances." (Oates, supra, 32 Cal.4th at p. 1053.) The Supreme Court explained that, "Based on the single injury to Barrera, the requirements of a subdivision (d) enhancement are met as to each of defendant's five attempted murder convictions, including those not involving the attempted murder of Barrera[.]" (Id. at p. 1055.)
We believe that multiple enhancements under subdivision (d) are also warranted in this case, regardless of whether Quiroa suffered great bodily injury. Under the reasoning set forth in Oates, subdivision (d)'s great bodily injury requirements were fulfilled by Padilla's death as to both the murder and attempted murder convictions in counts 1 and 2. (Oates, supra, 32 Cal.4th at p. 1055.) Accordingly, we need not consider whether Quiroa's injury qualifies as a great bodily injury under section 12022.7.
Because neither party cited Oates, we sent a letter requesting that they address the applicability of the case. Defendant responded and conceded that the trial court properly imposed a consecutive enhancement on count 2.
IV. The Sentence in Count 7
Defendant received a three-year concurrent sentence for a section 186.22, subdivision (b)(1) gang enhancement in count 7 (possession of a firearm by a felon). He argues that this enhancement must be stricken because the jury never made a finding as to a gang enhancement allegation in count 7. The record supports his assertion, which the Attorney General does not dispute.
We conclude that defendant's sentence must be modified to strike the three-year gang enhancement in count 7.
DISPOSITION
The judgment is modified as follows. In count 7, the three-year gang enhancement under section 186.22 is stricken. As modified, the judgment is affirmed. The superior court clerk is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J. We concur:
EPSTEIN, P.J.
MANELLA, J.