Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 04WF0531. John Conley, Judge.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Pedro Jesse Sanchez appeals from a judgment after a jury convicted him of first degree murder and street terrorism and found true he committed the murder for the benefit of a criminal street gang. He argues the trial court erroneously denied his severance and bifurcation motion, and relying on Penal Code section 654, the court erroneously sentenced him for both the murder and street terrorism offenses. Neither of his contentions have merit, and we affirm the judgment.
All further statutory references are to the Penal Code.
We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Sanchez was a member of the criminal street gang “Under No Authority” (UNA). Chad Huber had recently been released from prison and was a member of a White supremacist skinhead gang called “Orange County Skins.” One week before the incident here, Sanchez and Huber got into a fight, and Huber “got the better” of Sanchez.
One week later, Huber and three friends were driving when Huber saw Sanchez and two friends outside a store. Huber leaned his body out the rear passenger side window, yelled at Sanchez, hit his chest with his fist, and gave him the Nazi salute. Sanchez and his friends got into a truck and followed them, eventually catching them at a red light at the intersection of Katella Avenue and Los Alamitos Boulevard, where they sat a couple cars behind in an adjacent lane. Someone in the truck Sanchez was riding in yelled at the car Huber was riding in.
Huber got out of the car, walked toward the car, beat his chest with his fist, and raised his arms and hands in a challenging manner. Sanchez and his friends got out of the truck and argued with Huber. Sanchez pulled out a gun, and Huber turned to run. Sanchez fired the gun three times at Huber, hitting him twice. Sanchez and his friends fled, and Huber died later at the hospital.
Three years later, police searched a house in New Mexico where Sanchez lived. They discovered a computer where someone had searched for articles about Sanchez and Huber. The computer contained information identifying Sanchez as a UNA gang member and a profile describing Sanchez as a gang member whose hobbies included murder.
An information charged Sanchez with murder (§ 187, subd. (a)) (count 1) and street terrorism (§ 186.22, subd. (a)) (count 2). The information alleged Sanchez committed the murder for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(A).)
The district attorney offered the testimony of Officer Nathaniel Booth, a gang expert. After detailing his background, training, and experience, Booth testified concerning the culture and habits of traditional, turf-oriented Hispanic criminal street gangs. He stated UNA was an extremely violent criminal street gang located in Anaheim, Buena Park, Cerritos, and Cypress, with their hangout in Larwin Park. Based on his investigation of this case and UNA, Booth opined Sanchez was an active gang member in UNA with the moniker, “Risky.” Based on a hypothetical mirroring the facts of this case, Booth opined the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang, and the murder promoted, furthered, and assisted the gang.
Before trial, Sanchez moved to sever count 2 from count 1 and bifurcate the street terrorism enhancement. The trial court denied the motion. The jury convicted Sanchez of first degree murder and street terrorism, and found true the allegation he committed the murder for the benefit of a criminal street gang. After the trial court denied Sanchez’s motion for a new trial, the court sentenced him to 25 years to life on count 1, a two-year consecutive term on the street terrorism enhancement, and a two-year consecutive term on count 2.
DISCUSSION
I. Motion to Sever/Bifurcate
Sanchez argues the trial court erroneously denied his motion to sever count 2 from count 1 and bifurcate the street terrorism enhancement. As we explain below, we disagree with both his contentions.
A. Severance
“Section 954 permits related offenses to be charged in a single accusatory pleading unless there is good cause to try them separately: ‘An accusatory pleading may charge two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.’ [¶] . . . [¶] ‘“‘The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.] [¶] . . . Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]”’ [Citation.] [¶] A trial court’s denial of a motion for severance ‘may be reversed only if the court has abused its discretion. [Citations.] An abuse of discretion may be found when the trial court’s ruling ‘“falls outside the bounds of reason.’” [Citation.]’ [Citation.]” (People v. Ramirez (2006) 39 Cal.4th 398, 437-439.)
Here, all of the crimes charged against defendant arose out of a single course of conduct, and therefore, Sanchez had the burden to demonstrate joinder resulted in a substantial danger of prejudice. He did not meet that burden.
Cross-admissibility
“[I]t is . . . clear that cross-admissibility is not the sine qua non of joint trials. [Citations.] ‘While we have held that cross-admissibility ordinarily dispels any inference of prejudice, we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice.’ [Citation.]” (People v. Sandoval (1992) 4 Cal.4th 155, 173 (Sandoval).)
Although we agree with Sanchez that not all of the gang evidence would have been admissible had the murder charge been tried separately (including evidence of UNA’s primary activities, the predicate offenses, and Sanchez’s computer), there was gang evidence that would have been admissible in the murder trial. The district attorney’s theory of the case was the shooting was motivated by gang membership. True, Huber prevailed in a fight over Sanchez a few weeks before the shooting and this could have possibly been a separate and distinct motive for the shooting, but a reasonable person does not necessarily respond to being on the losing end of a fistfight by shooting his adversary. Sanchez was a member of a Hispanic gang, and Huber was a member of a White supremacist gang. After Huber gave Sanchez a Nazi salute, Sanchez followed the car Huber was riding in and closed in on him approximately five minutes later. Booth testified concerning the importance of respect in criminal street gangs and how a gang member would be viewed as disrespecting his gang if he did not respond violently when another gang member “flashes his gang sign.” When Huber got out of the car and raised his hands in a challenging manner, Sanchez pulled out a gun and shot at him three times as he tried to flee. The gang evidence described above, although not an exhaustive list, was relevant to motive, premeditation, and deliberation, and would have been admissible had the murder count been tried separately. The prosecution’s theory was that the senselessness of this shooting in one of the busiest intersections in Orange County can only be understood as a gang dispute between a Hispanic gang member and a White supremacist, and not a simple street fight. Gang evidence would have been admissible on that point.
Inflammatory
“Cases have repeatedly held that it is proper to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent. [Citations.] [T]he evidence of gang membership and activity [is] clearly relevant to [a] defendant’s motive for attacking . . . and his intent in doing so.” (People v. Funes (1994) 23 Cal.App.4th 1506, 1518.)
Again focusing on evidence of UNA’s primary activities, the predicate offenses, and the information found on his computer, Sanchez contends the gang evidence would inflame the jury against him. The impact of the gang evidence paled in comparison to the senseless shooting of another person in the middle of an intersection with other cars present. Additionally, the inflammatory effect, if any, of Sanchez’s gang membership in UNA was neutralized by the fact Huber was also a gang member. (Sandoval, supra, 4 Cal.4th at p. 173.) We conclude the gang evidence would not unusually inflame the jury against Sanchez.
Weak case
Suggesting Huber provoked him, Sanchez claims the murder case was weak as it was unclear whether there was sufficient evidence of deliberation and premeditation and whether the crime was murder or manslaughter, and the gang evidence “spill[ed] over into the murder charge[.]” There was overwhelming evidence Sanchez was guilty of first degree murder. After Huber got the better of him in a fight, Sanchez and two other UNA gang members bought a handgun. On the night of the shooting, Huber was in a car which drove by Sanchez, and Huber leaned out of the car and gave Sanchez a Nazi salute. Sanchez and his friends got into a truck and hunted them down approximately five minutes later. When Huber got out of the car and raised his hands in a challenging manner, Sanchez pulled out a gun and shot at Huber three times as he tried to run away. This was not a weak case (the murder charge) being joined with a stronger case (the street terrorism charge) so as to alter the outcome of the murder charge. Indeed, Sanchez does not argue on appeal that insufficient evidence supports his conviction for first degree murder.
Capital case
This was not a capital case, and therefore, this factor weighs in favor of joinder and against severance.
Due Process
“Even if a trial court’s severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the ‘defendant shows that joinder actually resulted in “gross unfairness” amounting to a denial of due process.’ [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 162.) Given the cross-admissibility of much of the gang evidence highlighted above, the fact the gang evidence paled in comparison to the evidence of the senseless murder, and the murder case was strong, Sanchez has not established that joinder “‘actually resulted in “gross unfairness” amounting to a denial of due process.’ [Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 28.)
B. Bifurcation
In People v. Hernandez (2004) 33 Cal.4th 1040, 1044 (Hernandez), the California Supreme Court addressed the issue of whether the trial court abused its discretion in denying defendants’ motion to bifurcate trial on the street terrorism enhancement from trial of the charged offense, robbery. The court began by acknowledging it had previously held that pursuant to section 1044, “‘a trial court has the discretion, in a jury trial, to bifurcate the determination of the truth of an alleged prior conviction from the determination of the defendant’s guilt of the charged offense[.]’” (Id. at p. 1048.) The court stated, “A gang enhancement is different 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, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. [Citation.]” (Ibid.)
The court added, however, a trial court has the authority to bifurcate trial of the gang enhancement from trial of guilt where the predicate offenses are unduly prejudicial or the probative value of other gang evidence is outweighed by its extraordinary prejudice. (Hernandez, supra, 33 Cal.4th at p. 1049.) The court explained, “evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] 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. [Citation.]” (Id. at pp. 1049-1150, italics added.)
The court then stated that although some evidence offered to prove the gang enhancement would be inadmissible at a trial of the offense itself, a trial court may still deny bifurcation. Analogizing bifurcation to severance and admitting such analogy is imperfect, the court explained the party seeking bifurcation must “‘clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried[,]’” and a court may deny bifurcation where there is an increased expenditure of funds and judicial resources. The court concluded by stating, “the trial court’s discretion to deny bifurcation of a charged gang enhancement is similarly broader than its discretion to admit gang evidence when the gang enhancement is not charged. [Citation.]” (Hernandez, supra, 33 Cal.4th at p. 1150.)
Here, Sanchez concedes the gang evidence relevant to the substantive offense of street terrorism was the same evidence relevant to the street terrorism enhancement, and the jury would have necessarily heard all the evidence. Sanchez’s real complaint is with the murder charge, and he again complains the gang evidence was irrelevant and highly prejudicial and “threatened to sway the jury to convict [him] of first degree murder[.]” As we explain above more fully, the gang evidence was relevant and not unduly prejudicial. The district attorney’s theory of the case was this was a gang-related shooting, and the gang evidence was relevant to prove motive and specific intent. Additionally, the gang evidence was no more inflammatory than the evidence concerning the shooting in an intersection with other cars and people present. We conclude the trial court properly denied Sanchez’s bifurcation motion.
II. Section 654
Relying on People v. Vu (2006) 143 Cal.App.4th 1009 (Vu), Sanchez contends the trial court erroneously sentenced him to a two-year consecutive term on count 2 because he committed the murder and street terrorism offenses by the same act and with the same intent and objective. Relying on People v. Ferraez (2003) 112 Cal.App.4th 925 (Ferraez), and People v. Herrera (1999) 70 Cal.App.4th 1456 (Herrera), the Attorney General argues Sanchez possessed two separate objectives, to commit murder and to commit street terrorism. As we explain below, we agree with the Attorney General.
Sanchez also relies on People v. Britt (2004) 32 Cal.4th 944, but it did not involve street terrorism and is not relevant to the issue presented here.
We note, Sanchez criticizes the Attorney General for not addressing Vu, which it does not, while not addressing Ferraez or Herrera. We remind the parties it is helpful to explain why opposing counsel’s reliance on a case is misplaced.
Section 654, subdivision (a), provides in relevant 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.” Section 654 prohibits multiple sentences where a single act violates more than one statute, and where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct with a single intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19-20 (Neal).) “The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal. [Citations.]” (Herrera, supra, 70 Cal.App.4th at p. 1466.)
In Herrera, supra, 70 Cal.App.4th at pages 1466-1467, this court reasoned “[t]he characteristics of attempted murder and street terrorism are distinguishable[.]” The court explained that “[i]n the attempted murders, [defendant’s] objective was . . . a desire to kill.” (Id. at p. 1467.) The court stated that in the substantive offense of street terrorism, defendant’s intent and objective was to actively participate in a criminal street gang. The court added that a defendant “does not need to have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendant’s objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense.” (Ibid.) The court concluded, “[I]f section 654 were held applicable here, it would render section 186.22, subdivision (a)[,] a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang.” (Id. at p. 1468.)
In Ferraez, supra, 112 Cal.App.4th at page 935, a different panel of this court relied on Herrera to conclude defendant possessed two independent, even if simultaneous objectives when he possessed cocaine for sale and engaged in street terrorism. The court, therefore, concluded section 654 did not require the trial court to stay the sentence for the substantive offense of street terrorism. (Ibid.)
Finally, in Vu, supra, 143 Cal.App.4th at page 1034, yet another panel of this court distinguished Herrera and Ferraez and concluded section 654 prohibited consecutive sentences for conspiracy to commit murder and street terrorism. Acknowledging a trial court may impose consecutive sentences when a gang member is convicted of the substantive crime committed in furtherance of the gang, the Vu court explained, “the acts of conspiracy and street terrorism constituted a criminal course of conduct with a single intent and objective. That single criminal intent or objective was to avenge Ly’s killing by conspiring to commit murder.” (Ibid.) The court added, “Each intent was dependant on, and incident to, the other.” (Ibid.)
Unlike Vu, here there was sufficient evidence for the court to conclude Sanchez possessed two independent, even if simultaneous, objectives—first degree murder and street terrorism. As we explain above, there was overwhelming evidence Sanchez intended to kill Huber by firing the handgun at him three times while he tried to flee. There was also sufficient evidence Sanchez was an active participant in UNA with the intent and objective to promote that gang. Therefore, the trial court properly sentenced Sanchez to consecutive sentences on counts 1 and 2.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.