Opinion
NOT TO BE PUBLISHED
Sup.Ct.No. SF093346B.
MORRISON, J.
A jury convicted defendant Pollien Sam of two counts of shooting at an occupied motor vehicle (Pen. Code, § 246; subsequent undesignated statutory references are to this code), possession of a concealed firearm by a gang member (§ 12025, subd. (b)(3)), carrying a loaded firearm in public by a gang member (§ 12031, subd. (a)(2)(C)), and actively participating in a criminal street gang (§ 186.22, subd. (a)). The jury also sustained allegations that the shooting at an occupied motor vehicle counts were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced defendant to 32 years to life.
Section 12025, subdivision (b)(3) and section 1203, subdivision (a)(2)(C) offenses shall be referred to collectively as the gang firearm offenses.
On appeal, defendant contends: 1) section 186.22, subdivision (a) is unconstitutionally vague; 2) the sentence for actively participating in a street gang should be stayed pursuant to section 654; 3) the trial court should have given the jury a unanimity instruction for the gang firearm counts; and 4) the gang firearm counts must be reversed because the prosecution failed to establish that they were committed in connection with defendant’s active participation in a street gang.
We shall stay the gang participation sentence and otherwise affirm the judgment.
BACKGROUND
On September 17, 2004, Phuong Nguyen, Lanthom Phommalychan, and Teddy Dodson were in Nguyen’s Honda Civic at the intersection of Hammer Lane and Holman in Stockton. Nguyen was the driver, Dodson was in the front passenger seat, and Phommalychan was in the back seat. The Civic was stopped in the left hand turn lane when a black four-door sedan pulled up to the right and a little in front of them.
The black sedan was driven by Dominic Rodriguez, with defendant in the rear, and Twan Ha in the front passenger side. Defendant, Rodriguez, and Ha are all active members of the Original Crip Gang (OCG). Dodson is associated with the Hitchcock Kill Squad, a gang affiliated with the Bloods, who are rivals of defendant’s gang. Phommalychan and Nguyen are not gang members.
While the cars were stopped at the intersection, defendant asked the people in Nguyen’s car for a cigarette. According to Nguyen, Phommalychan, and Dodson, Dodson said no to defendant’s request, and the occupants of the other car called them “slobs”, a derogatory term used by Crips for members of the Bloods. Ha testified that the front passenger in the Civic said “[w]e don’t have none for you guy[,]” and started using the term “crab,” a derogatory reference to Crips. This man identified himself as a Blood, and said to the occupants of the defendant’s car “Crab killer,” a derogatory term for Crips, while the people in the defendant’s car called the occupants of the Civic “slobs.”
Both cars made U-turns when the light turned green. The Civic had traveled 100 feet when about four shots were fired at the Civic from the black sedan. Defendant was seen firing a gun from the back seat. Defendant’s car was behind the Civic when the shots were fired. The black sedan then drove past the Civic and then drove away.
Roueth Korm and Ny Sok were in Korm’s Honda CRX a few hours after midnight on September 21, 2004. The two pulled into a Chevron station at Bianchi off West Lane in Stockton. Korm is a member of and Sok is closely affiliated with the Loc Town Crips (LTC), who are rivals of OCG.
While Korm’s CRX was at a pump in the gas station, a dark-colored four-door sedan parked across from them. Two people were in the dark sedan. The driver of the sedan, whom Sok identified as Rodriguez, appeared to be “mean mugging” them, which is a gang reference for staring at someone in a particularly disrespectful way. Sok told Korm the guy was OCG and said an insulting Cambodian term for OCG members used by members of the LTC. He then told Korm to leave the gas station.
Korm quickly drove away. As he headed down West Lane, he attained speeds of 60 to 70 miles per hour. Sok heard two or three shots as they left the Chevron station. About five to 10 seconds later, he noticed the dark sedan approaching very quickly. Korm turned right and the sedan continued to follow. More than five shots were fired at Korm’s car as it drove over railroad tracks. The sedan continued to close in as more shots were fired at Korm’s car.
Shots continued to come from the sedan as Korm kept evading the sedan. Korm entered a parking lot on the University of the Pacific (UOP) campus. Once his vehicle reached a dead end, Korm turned off the headlights, turned around, and drove along a wall. The sedan entered the parking lot with its headlights off, drove forward for about one minute, and stopped. As Korm’s car drove past the dark-colored sedan, the occupants fired another six or seven shots at them.
Korm’s CRX stopped after it crashed into something. Korm and Sok then took off running. Korm fell down and crawled into a bush while Sok kept running. The dark-colored sedan drove up to the bush, about five feet from where Korm was hiding. Four or five shots came from the passenger side of the car into the bush, hitting Korm in the neck. The dark-colored sedan drove away after Korm started moaning. Korm did not see the face of the shooter, but identified defendant as the shooter from his hair and the shape of his face.
Stockton police conducted a surveillance operation at Rodriguez’s house on September 21, 2004. Around 5:40 p.m., a blue Honda pulled up and defendant and Sean Hean, another OCG member, got out and walked to the front door. About five minutes later, they returned to the car and backed the Honda into the garage, which had been opened by Rodriguez. Defendant, Rodriguez, and Hean worked on the car for 10 to 15 minutes before driving off. The police followed the car, stopped it on Bonnie Lane, and arrested the occupants. Two loaded nine-millimeter semi-automatic pistols, a Ruger nine-millimter handgun, and a loaded FEG nine-millimeter handgun, were found hidden under the center console. Shell casings found at the scene of the September 17 shooting and bullets found at the scene of the September 21 shooting were fired from the FEG.
An expert on Asian youth gangs testified that OCG was a gang and one of its primary activities was committing crimes. In the expert’s opinion, judging from the nature of the crimes, the presence of members of rival gangs, and the use of gang related insults by the perpetrators and victims, both shootings were committed for gang purposes.
Defendant admitted to the police that he shot at the Civic after the occupants used the term “crab killer.” As he explained, “I just blasted.” Defendant was in the back seat of Rodriguez’s car, sitting behind Ha, when he fired two to three shots at the Civic with a nine-millimeter handgun. Defendant said he shot at the Civic because the man in the Civic had called him out first and “was asking for it.”
At trial, defendant testified and denied participating in either shooting. He had not slept and had been taking drugs all day when he gave his statement to the police.
DISCUSSION
I
Defendant contends section 186.22, subdivision (a) is unconstitutionally vague. As he acknowledges, the California Supreme Court has already rejected a constitutional challenge to section 186.22, subdivision (a) based on vagueness. In People v. Castenada (2000) 23 Cal.4th 743, the court declared in rejecting the same claim: “Through section 186.22(a)’s plainly worded requirements--criminal knowledge, willful promotion of a felony, and active participation in a criminal street gang--our Legislature has made it reasonably clear what conduct is prohibited.” (Id. at p. 752.) Castenada is binding on this court and requires rejection of defendant’s argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
II
Defendant claims his sentence for the active participation in a criminal street gang, section 186.22, subdivision (a), should have been stayed pursuant to section 654. The Attorney General correctly concedes the point.
Section 654, subdivision (a), provides in pertinent part: “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.”
Courts have explained that section 654 applies when a defendant’s course of conduct violates more than one statute but constitutes one indivisible transaction. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) On the other hand, multiple punishment is proper if the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other. “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.” (Ibid.)
The crime of active participation in a criminal street gang requires proof that defendant willfully promoted, furthered, or assisted in felonious criminal conduct by members of the gang. (§ 186.22, subd. (a).) Defendant’s conviction for section 186.22, subdivision (a), was for active participation in a gang on September 17, 2004. The only criminal activity committed by defendant that day was shooting at the Honda Civic. In connection with the September 17 shooting, defendant was convicted of shooting at an occupied vehicle and the jury sustained an allegation that the offense was committed for the benefit of a criminal street gang.
“[M]ultiple punishment . . . may be imposed where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives. [Citations.]” (People v. Douglas (1995) 39 Cal.App.4th 1385, 1393-1394.) In People v. Herrera (1999) 70 Cal.App.4th 1456, the Court of Appeal held it was proper to punish a defendant both for an attempted murder intended to promote a gang and for participating in the gang. The court concluded the intent for the two crimes was distinct (id. at pp. 1467-1468) and, although not clearly articulated, apparently believed that different conduct underlay each crime; therefore, section 654 did not prevent imposition of punishment for both. “Herrera testified he got into the Mustang to ‘back up’ or support the gang. He had told his girlfriend that his gang was going to retaliate against Middleside. The gang experts explained that gang warfare uniformly involved guns. The evidence supports the finding that Herrera intended to aid his gang in felonious conduct, irrespective of his independent objective to murder.” (Herrera, at p. 1468.) It also suggested that the crime of gang participation would be a nullity if section 654 forbade separate punishment for both the substantive gang crime and the gang enhancement. (Herrera, at p. 1468.)
While shooting at an occupied vehicle can have a different objective than active participation in a gang, this shooting is inseparable from the active participation in a gang offense. Unlike the situation in Herrera, supra, 70 Cal.App.4th 1456, the September 17 shooting had a single objective, advancing the interests of defendant’s gang by shooting at a car containing a member of a rival gang. When defendant shot at the car, his sole intent was to aid the gang. He was punished for this intent when the jury sustained the street gang allegation for the shooting at an occupied vehicle offense. Section 654 prevents defendant from being punished twice for a shooting motivated by a single intent.
III
Defendant was convicted of possession of a firearm by a gang member (Count 5) and possession of a loaded weapon by a gang member (Count 6). He was convicted of committing the offenses “[o]n or about September 21, 2004, . . .” Defendant contends there was evidence from which a jury could find he committed the offenses either during the chase and shooting on the UOP campus, or when the police found the weapons after the police stopped the car containing defendant, Rodriguez, and Hean. Defendant argues the jurors could disagree about whether the offenses occurred during the shooting or the detention, and the trial court erred by failing to give the jury a unanimity instruction (CALJIC No. 17.01). Our review discloses no prejudicial error.
“[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132; see also People v. Riel (2000) 22 Cal.4th 1153, 1199 (Riel).) However, the instruction is not necessary “where the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, . . .” (People v. Crawford (1982) 131 Cal.App.3d 591, 599; see also Riel, supra, 22 Cal.4th at p. 1199.)
During deliberations, the jury sent a note to the trial court asking if the charges in Counts 5 and 6 refer to the vehicle stop, the UOP shooting, the shooting at Hammer and Holman “or any/all of the (3) incidents.” The court replied: “The charges in Counts 5 and 6 allege the car stop incident on Bonnie Lane.”
“A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.” (People v. Maury (2003) 30 Cal.4th 342, 423.) The instruction was not necessary in light of the trial court’s answer to the jury’s question. The answer limited proof of the offenses in counts 5 and 6 to the vehicle stop in which the weapons were seized. We presume the jury abided by this answer. (People v. Boyette (2002) 29 Cal.4th 381, 436.) Since the jury could only sustain the charges if it believed defendant committed the offenses at the vehicle stop and seizure of the firearms, defendant’s claim is without merit.
IV
Defendant contends the convictions for possession of a firearm by a gang member (§ 12025, subd. (b)(3)), and possession of a loaded weapon by a gang member (§ 12031, subd. (a)(2)(C)), must be reversed because the prosecution did not prove one element necessary for both offenses. Each of these statutes makes the proscribed firearm possession a felony where the perpetrator “is an active participant in a criminal street gang, as defined in subdivision (a) of [s]ection 186.22, . . .” (§§ 12025, subd. (b)(3), 12031, subd. (a)(2)(C).)
Defendant asserts the gang firearm offenses must be committed in connection with the defendant’s active participation in a criminal street gang. He argues this element of the offenses was not established, requiring reversal of the gang firearm convictions.
In support of his claim, defendant relies on People v. Robles (2000) 23 Cal.4th 1106. In Robles, the Supreme Court construed the meaning of “section 12031(a)(2)(C)’s phrase ‘active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22’ as referring to the substantive gang offense defined in section 186.22(a).” (Robles, at p. 1115.) In order to convict someone under section 12031(a)(2)(C), the prosecution must prove the elements of “‘actively participat[ing] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity’ and ‘willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.’” (Ibid., quoting § 186.22, subd. (a).) Since the prosecution presented no evidence at the preliminary hearing of these elements other than defendant’s gang membership, defendant could not be held to answer on the section 12031(a)(2)(C) charge. (Ibid.)
The Robles court did not address the question presented by defendant’s case, whether the firearm offense itself must occur in connection with the defendant’s participation in a criminal street gang or whether proof relevant to other offenses can supply the necessary proof for the gang firearm offenses. This particular question was addressed People v. Schoppe-Rico (2006) 140 Cal.App.4th 1370 (Schoppe-Rico), where the defendant argued sections 12025, subdivision (b)(3) and 12031, subdivision (a)(2)(C) required that the possession of the firearm must be “‘in connection with the person’s status as an active participant in a criminal street gang.’” (Schoppe-Rico, at p. 1378, original italics.)
The Court of Appeal noted the following dicta in Robles: “‘Thus, it is entirely plausible that the Legislature may have enacted section 12031(a)(2)(C) to cover a situation not subject to felony punishment under section 186.22(a): when the person carrying the loaded firearm had at some other time committed a violation of section 186.22(a).’ [Citation.]” (Schoppe-Rico, supra, 140 Cal.App.4th at p. 1381, quoting Robles, supra, 23 Cal.4th at p. 1113, original italics.) The Schoppe-Rico court adopted the Robles dicta. (Schoppe-Rico, supra, at p. 1381.) “To construe the street gang firearm statutes as including a gang connection element, as advocated by appellant, not only would strain their language, but also would render them almost entirely unnecessary.” (Ibid.)
If the gang firearm statutes were construed in the manner advocated by defendant, then “the statutes would be subsumed under the firearm enhancement provision set forth in section 12021.5, subdivision (a), except where the underlying section 186.22(a) offense was treated as a misdemeanor.” (Schoppe-Rico, supra, 140 Cal.App.4th at p. 1381.) Nothing in the legislative history of these statutes supported this interpretation. (Ibid.) “On the contrary, it appears far more likely, as Robles surmised, that the Legislature intended the street gang firearms statutes to make it possible to convict active gang members of a felony whenever they are found in possession of a loaded or concealed firearm, even when the prosecution cannot establish any temporal or causal connection between the firearm possession and gang activity.” (Schoppe-Rico, at p. 1381.) Therefore, there is no gang connection element in the gang firearm statutes. (Id. at p. 1382.)
We agree with the reasoning in Schoppe-Rico, supra, 140 Cal.App.4th 1370. Statutory interpretation that renders related provisions nugatory must be avoided. (People v. Shabazz (2006) 38 Cal.4th 55, 67-68.) As noted in Schoppe-Rico, the interpretation defendant advocated would render the gang firearm statutes superfluous except where the underlying section 186.22, subdivision (a) offense was a misdemeanor. We do not believe the Legislature intended this result.
There was overwhelming evidence that defendant was an active member of a criminal street gang, the Original Crip Gang, knew of the gang’s criminal purpose, and furthered the gang’s criminal conduct. It is of no consequence that this evidence was not directly connected to the seizure of the firearms.
In a supplemental brief, defendant asserts People v. Lamas (2007) 42 Cal.4th 516 (Lamas), which was decided while this appeal was pending, compels a different result. We disagree.
Like Robles, supra, 23 Cal.4th 1106, the Lamas decision addressed “the interplay between sections 186.22(a) and 12031(a)(2)(C)” (Lamas, supra, 42 Cal.4th at p. 519.) The Supreme Court held “in order to establish the elements of section 186.22, among other things, the prosecution must prove that the charged gang member willfully promoted, furthered, or assisted members of his gang in felonious criminal conduct that is distinct from his otherwise misdemeanor conduct of carrying a loaded firearm in public or carrying a concealed weapon on his person.” (Id. at pp. 519-520, italics in original.)
Lamas is readily distinguished from the case before us. The defendant’s conviction was reversed in Lamas because the jury instructions eliminated this element from the offense. (Lamas, supra, 42 Cal.4th. at p. 521.) The record contained no evidence Lamas “engaged in any felonious conduct, either concurrently with, or prior to, his misdemeanor gun offenses.” (Id. at p. 526, fn. 9, original italics.) The Supreme Court therefore declined to consider “whether the felonious conduct requirement in section 186.22(a) can be satisfied with conduct that occurs contemporaneously with otherwise misdemeanor gun offenses. . . .” (Ibid.)
As we have already discussed, there is ample evidence defendant engaged in felonious, gang-related conduct separate from the gun possession offense. Lamas, supra, 23 Cal.4th 516 does not change our analysis.
DISPOSITION
The judgment is modified to stay execution of sentence on count 12, active participation in a street gang. In all other respects, the judgment is affirmed.
We concur: BLEASE, Acting P.J., CANTIL-SAKAUYE, J.