Opinion
E050510
09-14-2011
THE PEOPLE, Plaintiff and Respondent, v. JULIAN SANCHEZ, Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Elizabeth A. Hartwig and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF152809)
OPINION
APPEAL from the Superior Court of Riverside County. Richard John Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; affirmed as modified in part; reversed in part with directions.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Elizabeth A. Hartwig and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Julian Sanchez guilty of two counts of assault with a deadly weapon other than a firearm (Pen. Code, § 245, subd. (a)(1)), two counts of robbery (§ 211), and one count of actively participating in a criminal street gang (§ 186.22, subd. (a)(1)). In regard to the two assault convictions and two robbery convictions, the jury found true the allegations that defendant committed the offenses to benefit a criminal street gang. (§ 186.22, subd. (b)(1).)
All further statutory references will be to the Penal Code, unless otherwise indicated.
Defendant admitted suffering two prior convictions for (1) robbery, in California (§ 211); and (2) willful or intentional discharge of a weapon at or into a dwelling or any building used for public or business purposes, in Oklahoma (21 Okl. St. § 1289.17A). The court found true the allegations that the two prior convictions (1) resulted in prison terms (§ 667.5, subd. (b)); (2) qualified as serious felony convictions (§ 667, subd. (a)); and (3) qualified as strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A).) The trial court sentenced defendant to prison for a determinate term of 36 years plus an indeterminate term of 25 years to life.
Defendant raises three arguments on appeal. First, defendant contends his sentence for actively participating in a criminal street gang (§ 186.22, subd. (a)(1)) should have been stayed because the act at issue was punished in a different way by a different provision of law (§ 654). Second, defendant asserts his sentence for the four gang enhancements (§ 186.22, subd. (b)(1)) should be modified to reflect concurrent terms. Third, defendant contends there is insufficient evidence the prior Oklahoma conviction qualifies as a serious felony and strike under California law. We affirm in part, and reverse in part.
FACTUAL AND PROCEDURAL HISTORY
Andrew, Adrien, Victor, Marco, Marco's mother, and Victor's mother, lived at Victor's mother's house in an unincorporated area of Riverside County, known as Home Gardens, near the City of Corona. Andrew and Adrien are twin brothers. Victor and Marco are friends of Andrew and Adrien. Marco thinks of Andrew, Adrien, and Victor as his older brothers. In May 2007, Andrew, Adrien, and Victor were 20 or 21 years old, and Marco was approximately 14 years old.
On May 6, 2007, at approximately 10:30 p.m., Andrew, Adrien, Victor, and Marco (collectively referred to as "the group") were in Corona walking along McKinley Street. The group was walking from McDonald's to their house. Marco was kicking grass as the group walked, because he was in a soccer league. As Marco kicked at the grass, some rocks or sand struck a car. The car stopped. Two Hispanic males between the ages of 18 and 30 were in the car.
One of the men in the car said, "'Hey, what the hell?'" A person in the car asked, "'Why [did] you throw rocks at the car?'" Marco responded, "'I didn't throw rocks at the car, I just kicked grass.'" Andrew responded, "'I'm sorry, . . . you know, Marco plays soccer. He's a kid. I apologize.'" One of the men from the car asked, "'Hey, hey, what do you claim,'" referring to gang affiliation. Andrew and/or Adrien responded, "'I don't know what that means. I'm from Orange County, so I don't know what that means.'" The men from the car appeared confrontational and instructed the group to meet them at a park down the street. Andrew believed the men in the car wanted a fight to take place in the park. Adrien said to the men in the car, "'Dude, you guys just go home . . . .'" Andrew told the men in the car to have a goodnight. The men drove away, and the group continued walking towards their house.
As the group walked, they were approached by 10 to 15 individuals from a house on the corner of Harlow and Andover. Defendant was one of the 10 to 15 individuals. Defendant stood out from the 10 to 15 individuals due to his facial hair. The individuals told the group to stop. One of the individuals explained that the area was their "turf." The individuals wanted to know why Marco kicked rocks at the car. Andrew again explained, "'I'm sorry, our little brother Marco, he kicked some dirt on your car. Sorry about that. He plays soccer.'" The individuals surrounding the group ranged in age from 16 to 30 years old; they appeared to be primarily Mexican; they were mostly wearing black clothes. The individuals appeared to be drunk, because they were laughing a lot and seemed to be slurring their words.
One of the individuals said to Victor, "'That's a nice chain [necklace] you got.'" The man also said, "'Corona Crowns,' or, 'Corona Kings.'" Victor said something to the effect of, "'Okay, man.'" At that point, the individual who spoke to Victor yanked the necklace off of Victor and began attacking him. The other individuals also began attacking the group. Defendant was one of the first people to strike Andrew. Defendant punched Andrew on the right side of his face. As Andrew was being beaten, he heard someone say, "'Crown life.'" During the attack, Victor fell to the ground, and five to seven of the individuals proceeded to kick and strike him.
Within a matter of seconds, 10 to 15 more people arrived, so that the group was surrounded by approximately 25 to 30 people. The additional 10 to 15 individuals arrived by jumping over a fence and coming from both sides of Harlow Street. It appeared the additional individuals were coming from every direction, "trying to just bottle [the group] in there." Adrien instructed Marco to run away. Adrien pushed people off of Marco, and Marco ran. Two people on bicycles chased after Marco. Marco ran to a liquor store. When Marco arrived at the store, he called 911.
Meanwhile, a bottle and rocks were thrown at Adrien, and he was punched. Andrew instructed Adrien to check on Marco. Adrien pushed people off of him and ran to find Marco. A few individuals chased after Adrien; he pushed one of the individuals chasing him into a car, and yelled into the doorway of a house for someone to call 911.
Andrew stayed and tried to protect Victor. While Victor was on the ground, someone pushed a shopping cart into him and rode a bicycle across his head. Victor recalled someone saying "'4th Street'" as he was being attacked. As Andrew tried to protect Victor, the individuals kicked and punched Andrew. Andrew was knocked to the ground. While Andrew was on the ground, the individuals continued to strike him, throw beer bottles at him, and one rode a bicycle across Andrew's head. Defendant punched Andrew several times, and "kneed" him as well. The individuals also rummaged through Andrew's pockets and stole his possessions. Andrew had a Leatherman knife in his pocket, and he recalled one of the individuals saying, "'Should I stick him?'"
The necklace Victor was wearing belonged to Andrew and Adrien. During the attack the individuals took Andrew's wallet, the contents of his wallet, his Leatherman knife, his telephone, his watch, his leather wristband, and the necklace that Victor was wearing. Victor's wallet and watch were taken while he was on the ground. Andrew believed the attack lasted for approximately two to three minutes. Victor believed the attack lasted for approximately 25 minutes. Andrew believed the attack ended because the individuals had stolen all of Andrew's and Victor's possessions.
When the attack ended, almost all of the individuals fled down Andover Street. Andrew checked on Victor, and helped him to stand up. Andrew cried out for Adrien and Marco. Andrew and Victor walked or ran to Victor's house. When they arrived at the house they found Adrien, but Marco was missing. Adrien was angry and hysterical. Andrew, Adrien, and Victor decided to go back to the location where they were attacked in order to find Marco. Adrien asked Marco's mother to drive them back to the location of the attack, and she did.
When Andrew, Adrien, and Victor arrived at the location they screamed, "'Marco, give us back Marco[!]'" Andrew saw "a bunch of people down th[e] street" and "some guy" at a house to his right. The person to Andrew's right said he had a shotgun and Andrew would be shot if he did not leave. The people down the street started to rush towards Andrew, Adrien, and Victor saying something like, "'This is our territory, we're the Corona Crown Kings . . . . Get out of here," and screaming, "'Do you want to die? Do you want to die?'" Andrew, Victor, and Adrien continued to yell, "Give us back Marco[!] Give us back Marco[!]" The person to the right shot the gun once in the air, and once in the direction of Andrew, Victor, and Adrien. The person who shot the gun was Hispanic, and he was wearing dark clothes. Adrien continued to scream, "'Give us back Marco[!]'"
Shortly after the gun was fired, Marco's mother said she received a telephone call from a police officer saying Marco was safe at home. Andrew, Victor, and Adrien went home with Marco's mother. Whey they arrived home, the police questioned the group about what happened and what the attackers looked like.
Corporal Mattson of the Riverside County Sheriff's Department was dispatched to Victor's mother's house at approximately 10:52 p.m., on the night of the attack. Corporal Mattson saw Andrew was suffering from multiple lacerations and a bloody nose. When Corporal Mattson left the house, he began checking the area for people that matched the description of the attackers.
After speaking to the police, Adrien and Victor went out to try to find the attackers near the location where the group had been assaulted. As Adrien and Victor approached the intersection of Andover and Barker, they saw seven or eight Hispanic people "hanging out by a truck," in front of 3497 Andover. Some of the people by the truck said, "'Oh you guys are back for more,' or 'What are you guys doing here?'" The people by the truck were Hispanic males. Adrien and Victor ran back to their house. When Adrien and Victor arrived at home, Adrien called the police and said the attackers could be found at 3497 Andover.
Corporal Mattson went to the intersection of Barker and Somerdale, which is approximately one block from the house at 3497 Andover, but close enough to provide a clear view of the front of the house. Corporal Mattson stopped his car and directed his high beam headlights towards the house. There was nothing about Corporal Mattson's car that identified it as a patrol car, e.g., the car did not have a red and blue light bar. Corporal Mattson saw 10 Hispanic men on the street in front of the house all wearing black T-shirts and holding alcoholic beverages.
A few seconds after Corporal Mattson stopped his car, one of the individuals approached him, and then three or four more individuals approached him. Defendant was the first person that walked towards Corporal Mattson. As defendant approached, Corporal Mattson requested additional backup units, because he was outnumbered. Corporal Mattson identified himself as a sheriff's deputy and instructed defendant and the three or four other people to "get down on the ground." In response, defendant turned around and "casually" walked back, while the remaining people fled the area in various directions. Corporal Mattson focused his attention on defendant. Corporal Mattson moved towards defendant in his patrol car, exited the car, and ordered defendant to get on his knees. Corporal Mattson detained defendant and placed him in the back of the patrol car.
While detaining defendant, Corporal Mattson noticed defendant was wearing a black shirt and tan shorts. Corporal Mattson saw a blood stain on defendant's shorts. Corporal Mattson also noticed that defendant had tattoos. Defendant had the letters "CVL" tattooed on his arm, and the number "13" tattooed on the inside of his right hand ring or middle finger. The Home Gardens area of Corona is claimed by the Corona Varrio Locos, 4th Street gang. The Corona Varrio Locos is referred to by a variety of abbreviations, but "CVL" is the primary abbreviation. Corporal Mattson also saw graffiti in the area. For example, he saw "Corona" spray painted with two "N"s.
Sheriff's Deputy Brandie Jackson brought Andrew to 3497 Andover for an infield identification. When Andrew saw defendant, Andrew said, "'That's the guy who hit me. He threw the first punch.'" Deputy Jackson then brought Adrien to 3497 Andover. When Adrien saw defendant, Adrien said, "'That's the one that hit my brother.'" Deputy Jackson then brought Victor to 3497 Andover for an infield identification. When Victor saw defendant, Victor said, "'That's the guy who started. He hit Andrew.'" When Marco was taken to see defendant, Marco said, "[T]hat was the guy." A senior criminalist with the California Department of Justice found that the blood on defendant's shorts came from Andrew, based upon DNA tests.
On April 20, 2007, at approximately 10:40 p.m.—less than one month before the attack on the group—Corona Police Sergeant Sergio Banales saw defendant walking near the Showcase Theatre in Corona, with an open container of alcohol. Sergeant Banales approached defendant and spoke to him. Sergeant Banales informed defendant it was illegal to walk around consuming alcohol. While speaking to defendant, Sergeant Banales completed a field interview card (FI card).
Sergeant Banales recalled seeing several tattoos on defendant, including (1) "Corona, Boxer" on defendant's right hand; (2) "CVL" on defendant's right arm; and (3) "Surenos" on defendant's left arm. Defendant's gang moniker is "Little Boxer." Sergeant Banales photographed defendant's tattoos while they were in front of the theatre. While the sergeant spoke to defendant, defendant said, "[H]e had been out of the area for some time because he was living in Texas. He said he had recently returned to California, but that he no longer was active or was banging, but he was still down for 4th Street CVL." Defendant explained, "'I'm always a gang banger. You know, whether active or not, I'm always going to be down for CVL.'" Defendant told Sergeant Banales he was living at 3497 Andover Street.
On May 6, 2007—the night of the attack—more of defendant's tattoos were documented. Defendant had "Smile now, cry later" tattooed on his upper left chest. The wording reflects the gang culture of having fun in the moment and paying consequences later. On defendant's right bicep there was a skeleton tattoo with the number "13" inside the skeleton. Defendant also had a tattoo of a skeleton wearing a crown with the number "13" on top of it. The tattoo showed defendant's affiliation with the Surreno and CVL gangs.
Corona Varrio Locos (CVL) is a primarily Hispanic gang based in the Corona, Home Gardens, and El Cerrito areas. CVL is known by a variety of names, such as Crown Town and Fourth Street. CVL is referred to by the number four and the roman numeral IV. CVL is associated with Fourth Street because the gang originated on Fourth Street in Corona. "Crown Town" is used because, in Spanish, "Corona" means "crown."
CVL associates itself with the color blue because blue is associated with the Surenos. Surenos refers to a jail and prison gang, which most members of Southern California Hispanic street gangs affiliate with when they are in prison. Surenos is affiliated with the Mexican Mafia. The number 13 is significant, because "M" is the thirteenth letter of the alphabet. Often gang members who are affiliated with gangs under the umbrella of the Mexican Mafia will have a tattoo of the number 13.
On the corner of Andover and Harlow, at approximately the location where the attack took place, graffiti was found reflecting the words "4th Street" and "CVLS." On Harlow, between Andover and Windsong, graffiti was found reflecting Corona, 13, 4th Street, CT, and SUR. "SUR" is an abbreviation for Sureno. "CT" is an abbreviation for "Crown Town."
Riverside County Sheriff's Deputy Triputra testified as an expert witness on the subject of gangs. Deputy Triputra viewed a map of the Home Gardens area, and circled houses where members of CVL were known to reside. One of the homes circled was at the corner of Harlow and Andover. A second house was also near the intersection of Harlow and Andover. In regard to 3497 Andover—the location where defendant was arrested—Deputy Triputra explained that several CVL members live around the house.
Deputy Triputra explained a person with defendant's tattoos would not be able to live in Home Gardens if that person were not a member of CVL. The deputy testified a non-member would be ordered to remove the tattoos or face consequences as severe as death. Deputy Triputra further explained a person who dropped out of CVL would not be able to live at 3497 Andover, because the house is in the heart of CVL territory, and "[t]here is no way that a dropout would be able to live in the area freely."
Deputy Triputra opined defendant was an active participant in CVL, because (1) he lived at 3497 Andover, which is an area "highly claimed" by CVL; (2) he participated in the attack on the group with other CVL members; (3) during the attack someone yelled, "'Crown Town, 4th Street'"; (4) one month prior to the incident defendant told Sergeant Banales that he would always be a member of CVL; and (5) defendant has CVL tattoos.
Defendant's first assault charge related to Andrew. The second assault charge related to Victor. Defendant's first robbery charge concerned Andrew, and the wallet, watch, and bracelet that were taken from him. The second robbery charge concerned Victor, and the watch, wallet, and necklace that were taken from him. The prosecutor raised three theories of guilty: direct culpability, culpability as an aider and abettor, and culpability due to the natural and probable consequences of an act.
The prosecutor argued defendant was directly liable for the assault on Andrew, because there was evidence that defendant directly punched Andrew. The prosecutor argued defendant was guilty of assaulting Victor pursuant to a theory of aiding and abetting. As to the two robberies, the prosecutor argued defendant was guilty of the crimes because they were the natural and probable consequence of the two assaults.
The prosecutor argued defendant was an active member of a criminal street gang based upon defendant's tattoos; defendant's admission he associated with members of CVL; the field interview cards; defendant's address, which was in the middle of CVL territory; defendant's participation as one of the 10 individuals that initially approached the group prior to the fight; defendant's attack on Andrew; and defendant being the first person to approach Corporal Mattson after the fight.
The third element of the "active participation" offense concerned furthering, promoting, or assisting felonious activity by members of the criminal street gang. (§ 186.22, subd. (a).) The prosecutor argued this element of the offense would be satisfied if the jury found defendant guilty of the assault and/or robbery charges.
When the trial court instructed the jury on the "active participation" offense (§ 186.22, subd. (a)), it stated, "If you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the [gang]'s primary activities was commission of that crime and whether a pattern of criminal gang activity has been proved."
DISCUSSION
A. SECTION 654
1. CONTENTION
Defendant contends his sentence for being an active participant in a criminal street gang should be stayed because the underlying felonies supporting the conviction are the same felonies that constituted the other counts in this case. (§ 654.) We agree.
2. SECTION 654
Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Our Supreme Court has "broadly" construed section 654. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) Our high court has concluded section 654 applies "not only where there was but one 'act' in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether [the course of conduct] comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." [Citation.] [¶] 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. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.]" (Ibid.)A trial court's finding that section 654 is applicable will be upheld on appeal if it is supported by substantial evidence. (People v. Tarris (2009) 180 Cal.App.4th 612, 626 [Fourth Dist., Div. Two].)
3. DIVISIBILITY
The "course of conduct" in the instant case is defendant's attack upon Andrew and Victor. Defendant's conviction for count 1 accounted for his assault against Andrew. Defendant's conviction on count 2 addressed his part in the assault against Victor. Defendant's convictions for counts 3 and 4 accounted for his role in the robberies of Andrew and Victor. Based upon these convictions, defendant's "course of conduct" has already been divided into four individual acts. There is not a fifth act in the course of conduct for us to analyze whether defendant harbored a separate or simultaneous intent. Rather, the active participation offense is based on the same act that comprises the conviction for count 1, 2, 3, or 4. Therefore, presumably, section 654 should result in defendant's count 5 sentence being stayed. However, the issue of whether defendant's active participation sentence should be stayed is not so easily resolved.
4. SPLIT IN THE COURTS OF APPEAL
Our Supreme Court is currently considering the issue of whether section 654 applies when a defendant has been given a sentence for (1) active participation in a street gang (§ 186.22, subd. (a)), and (2) a separate sentence for the crime used to prove the underlying felony element in the active participation offense. (People v. Mesa (Mar. 11, 2011) _______ Cal.App.4th ______ , review granted Oct. 27, 2010, S185688 .) The Courts of Appeal are split on the issue.
a) Section 654 is Applicable
This court has concluded section 654 does bar the imposition of the active participation sentence, when a defendant has already been sentenced for the act that constitutes the underlying felony in the active participation offense. (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1316 [Fourth Dist., Div. Two].) In Sanchez, this court reasoned that if an offense were used to satisfy the underlying felony element of the active participation offense, then the same act and intent "almost by definition" had to be involved in both crimes. Therefore, this court concluded a defendant could not be punished for both active participation and the underlying felony, pursuant to section 654. (Ibid.)
b) Section 654 is Not Applicable
Other Courts of Appeal have come to the opposite conclusion: that section 654 is not a bar to the imposition of two independent sentences for (1) active participation, and (2) the underlying felony that constitutes an element of the active participation offense. (See People v. Herrera (1999) 70 Cal.App.4th 1456, 1466-1468 [Fourth Dist., Div. Three (Herrera)]; In re Jose P. (2003) 106 Cal.App.4th 458, 471 [Sixth Dist.]; People v. Mesa (2010) 186 Cal.App.4th 773, 786-787, review granted Oct. 27, 2010, S185688 [Fourth Dist., Div. One].) The courts that have concluded section 654 does not act as a bar to imposing two sentences, have provided two primary reasons for their decisions: (1) the gravamen of the active participation offense is the participation in the gang itself, and therefore it is a qualitatively different offense than the underlying felony; and (2) the application of section 654 in this situation would render the active participation provision a nullity. We explain why we do not rely on the foregoing two lines of reasoning.
(1) Different Substantive Offense
The first reason was set forth by the Herrera court. In Herrera, the court concluded the gravamen of the active participation offense "is the participation in the gang itself." (Herrera, supra, 70 Cal.App.4th at p. 1467, fn. omitted.) The court reasoned that since the offense of active participation is substantively different than the underlying felony that comprises an element of the crime, it is reasonable for a trial court to conclude a defendant committed the underlying crime while harboring two independent, yet simultaneous, objectives. (Id. at p. 1468.) Accordingly, a defendant could be punished for both active participation and the underlying felony; i.e., section 654 is not applicable.
We find this first line of reasoning somewhat problematic given our Supreme Court's recent conclusion the plain language of section 186.22, subdivision (a), is directed at "felonious criminal conduct." (People v. Albillar (2010) 51 Cal.4th 47, 55.) Our Supreme Court held, "section 186.22(a) imposes criminal liability not for lawful association, but only when a defendant 'actively participates' in a criminal street gang while also aiding and abetting a felony offense committed by the gang's members. [Citation.]"(People v. Castenada (2000) 23 Cal.4th 743, 751-752.)
The Herrera court's conclusion that the gravamen of the offense is the participation in the gang itself seems uncomfortably close to concluding a defendant may be punished for lawful association with gang members, which our Supreme Court has concluded is not the gravamen of the active participation offense. (Herrera, supra, 70 Cal.App.4th at p. 1467.) Since we find this reasoning from Herrera to be somewhat contradictory to our Supreme Court's recent holding, we do not rely on this reasoning.
(2) Statutory Surplusage
The second line of reasoning advanced by the courts that have concluded section 654 is not a bar to imposing two sentences is as follows: If section 654 were applied to an active participation sentence every time a defendant was also sentenced for the underlying felony, then section 186.22, subdivision (a), would be rendered null or surplusage, because a defendant's sentence for active participation would almost always be stayed. (Herrera, supra, 70 Cal.App.4th at p. 1468.) We agree that concluding section 654 is applicable to the active participation offense will essentially render the active participation offense a nullity; however, we conclude this is not a reason to exempt the active participation offense from section 654.
Courts "'construe statutes and regulations in a manner that carries out the legislative or regulatory intent. [Citation.] [Courts] must "'ascertain the intent of the [drafters] so as to effectuate the purpose'" of the regulations. [Citation.] The words used are the primary source for identifying the drafter's intent. [Citation.] [Courts] give those words their usual and ordinary meaning where possible. [Citations.] [Courts] give significance to every word, avoiding an interpretation that renders any word surplusage. [Citation.] [Courts] also interpret words of a regulation in context, harmonizing to the extent possible all provisions relating to the same subject matter. [Citation.]' [Citation.]" (In re Espinoza (2011) 192 Cal.App.4th 97, 104 [Fourth Dist., Div. Two].)
Section 186.22, subdivision (a), provides: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years."
Looking at the plain language of the statute, and giving the words their usual and ordinary meanings, it appears the statute was designed to punish people who actively participate in a gang. Our high court has concluded "that the phrase 'actively participates' needs no further description." (People v. Albillar, supra, 51 Cal.4th at p. 58.) However, the Supreme Court explained that "section 186.22(a) imposes criminal liability not for lawful association, but only when a defendant 'actively participates' in a criminal street gang while also aiding and abetting a felony offense committed by the gang's members. [Citation.]" (People v. Castenada, supra, 23 Cal.4th at pp. 751-752.) Accordingly, the underlying felony is an element of section 186.22, subdivision (a). Therefore, every conviction for section 186.22, subdivision (a), includes the finding that defendant committed an underlying felony.
A problem arises because the underlying felony is chargeable as an independent offense, e.g., robbery or rape. Additionally, if a defendant intended to assist or promote the gang, then that issue can be addressed by the gang enhancement set forth in section 186.22, subdivision (b). As a result, the substantive offense of active participation in a gang is essentially meaningless, because if a defendant committed a felony to benefit a gang, then a prosecutor could simply charge the defendant with the felony and the gang enhancement—there is no need to charge the defendant with the active participation offense because the charges would be practically identical, and therefore, the application of section 654 would render the active participation offense meaningless. For example, the gang enhancement requires the felony be committed "with the specific intent to promote, further, or assist in any criminal conduct by gang members," (§ 186.22, subd. (b)), while the active participation offense requires that a person "willfully promotes, furthers, or assists in any felonious criminal conduct by members of [the] gang" (§ 186.22, subd. (a)). Accordingly, if section 654 is applicable to the active participation offense, then the active participation offense is a redundancy in the Penal Code, since it serves no purpose, as a defendant's sentence for the conviction would be stayed by section 654 due to the active participation offense always involving the same act as the underlying felony.
We have considered the possibility that the active participation offense could be used if a prosecutor did not want to charge the underlying felony; however, that reasoning also fails, because ultimately the prosecutor will have to prove a felony was committed. For example, this case involves an assault. For the sake of the active participation offense, the prosecutor would need to show the assault amounted to a felony, rather than simple assault. Therefore, the prosecutor still has the burden of proving a felony occurred, which means it would be logical for the prosecutor to simply charge the felony assault with a gang enhancement (rather than charging active participation) because it would save the prosecutor from proving the additional element of "active participation."
The plain language of the statute has left us with the issue of section 186.22, subdivision (a), appearing redundant or superfluous; therefore, we look to the legislative intent related to the subdivision and statutory scheme. When enacting the Street Terrorism Enforcement and Prevention Act, our Legislature found "that the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." (§ 186.21.) As a result, the Legislature enacted the Street Terrorism Enforcement and Prevention Act with the intent of "seek[ing] the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs." (§ 186.21.)
There is nothing in the Legislature's declared intent explaining how a conviction for active participation (§ 186.22, subd. (a)) differs from a conviction of the underlying felony with a gang enhancement (§ 186.22, subd. (b)). For example, it is not clear if the active participation offense was meant to result in harsher sentences, and therefore work as an exception to section 654; however, if the goal were harsher sentences, then it would seem easier to simply raise the prison term associated with the gang enhancement.
In sum, it appears the application of section 654 to the active participation offense will render the provision superfluous, because a defendant's sentence for the offense will almost always be stayed pursuant to section 654 due to the underlying felony always comprising the same act as the active participation act. As cited ante, we are aware of the rule that we should not interpret a provision to be surplusage; however, we are not aware of any rule that allows a statute to be exempted from the law set forth in section 654 simply because application of section 654 will render the provision surplusage. In other words, the fact the application of section 654 will render this statute superfluous is not a legal reason for exempting the provision from law set forth in section 654.
(3) Specific Versus General Provision
A somewhat related, but alternate, theory we have considered is the possibility that section 186.22, subdivision (a), operates as a specific statute, and therefore trumps section 654, which is a general statute; however, that reasoning also fails. There is a "well-established rule . . . that the Legislature may create an express exception to section 654's general rule against double punishment by stating a specific legislative intent to impose additional punishment. [Citations.]" (People v. Ramirez (1995) 33 Cal.App.4th 559, 572-573.) "A statute which provides that a defendant shall receive a sentence enhancement in addition to any other authorized punishment constitutes an express exception to section 654." (People v. Palacios (2007) 41 Cal.4th 720, 730.)
We can find no language in the declared legislative intent (§ 186.21), or the provision itself, creating an exemption to the application for section 654. For example, there is no express reference to section 654. (§§ 186.21, 186.22.) Further there is not an implied reference to section 654, such as "notwithstanding any other law" or similar language to the same effect. (See People v. Palicios (2007) 41 Cal.4th 720, 730 [The phrase "'notwithstanding any other provision of law'" created an exception to the application of section 654.].) Since there is nothing in the statute or declared intent specifically creating an exception to section 654, we conclude the active participation provision was not meant to be interpreted as a specific statute that trumps the general rule set forth in section 654.
5. CONCLUSION
Since it has been held that the active participation offense centers upon felonious conduct, rather than lawful association, it seems the underlying felony element of the active participation offense will always result in the sentence for active participation being stayed pursuant to section 654, because the same act will inevitability be at issue in the straight felony charge and the active participation charge. As a result, it seems the active participation provision is superfluous. Further, there does not appear to be any legal exemption removing the active participation sentence from the ambit of section 654. As a result, we conclude 654 does act as a bar to the imposition of defendant's sentence for active participation (§ 186.22, subd. (a)). The trial court incorrectly ordered that defendant's sentence for the offense should be served concurrently, when the sentence should have been stayed. Accordingly, we will direct that defendant's active participation sentence be stayed. The total time served by defendant should not be adjusted as a result of this conclusion, due to the change in the sentence from "concurrent" to "stayed."
B. SENTENCES FOR COUNTS 1 THROUGH 4
1. FACTS
The trial court sentenced defendant as follows: count 1, the assault against Andrew, was selected as the principle term. The court imposed a sentence of 25 years to life for the substantive offense, and a consecutive three-year term for the gang enhancement. On count 2, the trial court imposed a concurrent term of 25 years to life for the substantive offense, and a consecutive 10-year term for the enhancement. For counts 3, the court imposed the same sentence: a concurrent 25-to-life term for the substantive offense, but a consecutive 10-year term for the enhancement. As to count 4, the court imposed a concurrent term of 25 years to life for the substantive offense, and a consecutive three-year term for the enhancement.
2. ANALYSIS
Defendant contends the trial court erred by not ordering the gang enhancement sentences in counts 2 through 4 to be concurrent. Defendant points out that a problem exists due to the inconsistencies between the treatment of the substantive offenses in counts 2 through 4 and their attached enhancements, i.e., concurrent versus consecutive. The People concede the sentence is problematic, and request that this court direct the trial court to clarify if it meant to impose concurrent or consecutive sentences for the substantive offenses and enhancements in counts 2 through 4. We agree that the trial court erred.
"'By definition, a sentence enhancement is "an additional term of imprisonment added to the base term."' [Citation.]" (People v. Gonzalez (2008) 43 Cal.4th 1118, 1124.) In determining whether sentences are to be served concurrently or consecutively, a court may not treat the felony term and the related enhancement differently. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310.)
In this case, the trial court ordered that the sentences for the substantive offenses in counts 2 through 4 be served concurrently, while ordering that the enhancements associated with counts 2 through 4 be served consecutively. The trial court's order is erroneous because the substantive terms and enhancement terms do not match in regard to whether the terms are consecutive or concurrent. Because the orders do not match, it is not clear if the trial court would have wanted to impose a series of consecutive terms or concurrent terms. As a result, we must reverse the sentences for counts 2 through 4 and direct that the trial court resentence defendant on the substantive offenses and their associated enhancements.
C. PRIOR OKLAHOMA CONVICTION
1. CONTENTION
Defendant contends substantial evidence does not support the finding that his prior Oklahoma conviction qualifies as (1) a strike, and (2) a prior serious felony. We agree, and remand the matter for a new trial as to the Oklahoma conviction allegations.
2. BACKGROUND LAW AND STANDARD OF REVIEW
"The three strikes law imposes enhanced punishment, '[n]othwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions . . . .' [Citations.] A prior conviction for purposes of the three strikes law includes '[a] conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of [s]ection 667.5 or subdivision (c) of [s]ection 1192.7.' [Citation.]" (People v. Laino (2004) 32 Cal.4th 878, 895.)
"The prosecution bears the burden of proving beyond a reasonable doubt that a defendant's prior convictions were for either serious or violent felonies. When a defendant challenges the sufficiency of the evidence to uphold a finding that his prior convictions qualified as strikes, the test on appeal is whether a reasonable trier of fact could have found that the prosecution sustained its burden. We review the record in the light most favorable to the trial court's findings. [Citation.]" (People v. Towers (2007) 150 Cal.App.4th 1273, 1277 (Towers).)
"Our inquiry is limited to the entire record of the conviction. If the elements of the strike offense allowed a conviction for conduct that might not have qualified as a serious felony, unless other evidence in the record shows the nature of the conduct that led to the conviction, we must presume that the prior conviction was based on the least punishable offense. [Citations.]" (Towers, supra, 150 Cal.App.4th at p. 1277.)
"To the extent we interpret statutes, we apply the well-known rules of statutory construction. '"The fundamental rule of statutory construction is to ascertain the intent of the Legislature in order to effectuate the purpose of the law[.] In doing so, we first look to the words of the statute and try to give effect to the usual, ordinary import of the language, at the same time not rendering any language mere surplusage. The words must be construed in context and in light of the nature and obvious purpose of the statute where they appear[.]"'" (Towers, supra, 150 Cal.App.4th at p. 1277.)
3. OKLAHOMA STATUTE
On August 28, 2001, defendant was convicted in Oklahoma of discharging a weapon into a dwelling. The crime occurred on June 4, 2001. The pertinent Oklahoma statute provides: "It shall be unlawful for any person to willfully or intentionally discharge any firearm or other deadly weapon at or into any dwelling, or at or into any building used for public or business purposes. Any violation of the provisions of this section shall be a felony punishable by imprisonment in the custody of the Department of Corrections for a term not less than two (2) years nor more than twenty (20) years. The provisions of this section shall not apply to any law enforcement officer in the performance of any lawful duty." (21 Okl. St. § 1289.17A.)
4. OKLAHOMA INFORMATION
The Oklahoma information reflects: "Count 1: WILLFULL/INTENTIONAL DISCHARGE OF WEAPON INTO DWELLING, a felony, on or about the 8th day of September, 2000, by willfully discharging a .357 revolver into a dwelling located at 615 West Oklahoma, Ponca City, Kay County, which dwelling was at the time occupied by Kay Wheeler, her two children and Jerry Ragan, without regard to the safety of the occupants thereof."
5. OKLAHOMA JUDGMENT
The Oklahoma judgment reflects that defendant "ENTERED A PLEA OF GUILTY as to count 1." The judgment further reflects that the crime in count 1 was willful/intentional discharge of a weapon into a dwelling. (21 Okl. St. § 1289.17A.) Defendant was sentenced to prison for 10 years; however, seven of the years were suspended.
6. CALIFORNIA STATUTE: SHOOTING AT AN INHABITED DWELLING HOUSE
California has a statute related to the offense of shooting into an inhabited dwelling; however, California's statute has the additional element of malice. California's statute provides: "Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle . . . is guilty of a felony . . . ." (§ 246.) Shooting into an inhabited dwelling is a general intent crime. (People v. Ramirez (2009) 45 Cal.4th 980, 985, fn. 6.) As a result, the term "malice" in section 246 means, "'a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.'" (People v. Watie (2002) 100 Cal.App.4th 866, 879.)
7. CALIFORNIA: DISCHARGING A FIREARM IN A GROSSLY NEGLIGENT MANNER
In California, a lesser included offense of shooting into an inhabited dwelling (§ 246) is discharging a firearm in a grossly negligent manner (§ 246.3). (People v. Ramirez, supra, 45 Cal.4th at p. 985.) The statute related to the lesser included offense provides, "Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison." (§ 246.3.) This offense is a "wobbler." (People v. Clem (2000) 78 Cal.App.4th 346, 350 & fn. 2.)
8. ANALYSIS
The record reflects defendant "ENTERED A PLEA OF GUILTY as to count 1." Accordingly, it is unclear if defendant pled guilty to the factual allegations in the information, and/or to the elements of the statute. As set forth ante, "[i]f the elements of the strike offense allowed a conviction for conduct that might not have qualified as a serious felony, unless other evidence in the record shows the nature of the conduct that led to the conviction, we must presume that the prior conviction was based on the least punishable offense. [Citations.]" (Towers, supra, 150 Cal.App.4th at p. 1277, italics added.)
Based upon the record, defendant may have pled guilty to shooting into a dwelling, "without regard to the safety of the occupants thereof," as charged in the information. In California, the phrase "without regard to the safety of others" is associated with the concept of recklessness. (See Veh. Code, § 23103 [reckless driving]; see also People v. Pinkston (2003) 112 Cal.App.4th 387, 392 [describing reckless evasion].) Also in California, we define criminal negligence as "'"aggravated, culpable, gross, or reckless . . . conduct [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life[.]"' [Citation.]" (People v. Valdez (2002) 27 Cal.4th 778, 783.) Looking at the least punishable offense, it appears defendant pled guilty to reckless behavior, which would qualify as negligent behavior, as opposed to malicious behavior. As a result, defendant's prior conviction is more closely related to the California offense of discharging a firearm in a grossly negligent manner. (Pen. Code, § 246.3.)
The offense of discharging a firearm in a grossly negligent manner is a wobbler. A wobbler is considered a misdemeanor unless the defendant is sentenced to state prison. (§ 17, subd. (b)(1).) Thus, whether a prior wobbler conviction qualifies as a strike requires proof of defendant's sentence. (People v. Williams (1996) 49 Cal.App.4th 1632, 1639.) The record reflects the Oklahoma court sentenced defendant to state prison for 10 years, with seven years of the sentence suspended. The record further reflects defendant was sentenced in Oklahoma on June 4, 2001, and that he was released from prison on August 23, 2002. The foregoing is substantial evidence defendant served a prison term for the offense. Accordingly, there is substantial evidence defendant's prior conviction from Oklahoma qualifies as a felony.
"Section 1192.7, subdivision (c) lists the crimes which constitute serious felonies. The crime of discharging a firearm in a grossly negligent manner under section 246.3 is not specifically listed. Instead, such a crime qualifies as a serious felony only if certain conduct relating to the offense is proved. [Citation.] As pertinent here, section 1192.7, subdivision (c)[(8)] defines a serious felony to include 'any felony in which the defendant personally uses a firearm' . . . ." (People v. Bautista (2005) 125 Cal.App.4th 646, 654.)
There is nothing in the record indicating whether defendant personally shot the weapon into the Oklahoma house, or whether he aided and abetted another in the shooting. The record merely reflects defendant "ENTERED A PLEA OF GUILTY as to count 1." While the Oklahoma information charged defendant with "willfully discharging a .357 revolver into a dwelling," there is nothing in the record indicating defendant admitted the charged facts, as opposed to admitting the bare elements of the offense. Given the state of the record, e.g., the lack of an Oklahoma reporter's transcript, detailed minute order, and/or settled record, it is unclear exactly what role defendant admitted to playing in regard to the Oklahoma shooting.
Based upon the lack of evidence in the record, regarding whether defendant personally discharged the .357 revolver, there is not substantial evidence defendant personally used a firearm. As a result, there is not substantial evidence supporting the conclusion defendant's offense qualifies as a serious felony. (§ 1192.7, subd. (c)(8).)
Since defendant's Oklahoma conviction does not qualify as a serious felony, based on the current record, it does not satisfy the serious felony element of section 667, subdivision (a)(1), or the prior conviction element of the "three strikes" law (§ 1170.12, subds. (b)(1) & (c)(2).) Accordingly, we conclude the trial court erred by imposing the five year serious felony enhancement (§ 667, subd. (a)(1)) and three strikes sentence, based upon the prior Oklahoma conviction. Because retrial on prior conviction allegations is not precluded by double jeopardy principles, we remand the matter for retrial of these allegations. (People v. Cortez (1999) 73 Cal.App.4th 276, 284, fn. 7.)
In the People's supplemental letter brief, they do not analyze the issue of whether defendant personally used a firearm. (§ 1192.7, subd. (c)(8).) The People's position is that the Oklahoma conviction qualifies as a strike within the meaning of section 246— the greater offense involving malice—as opposed to the lesser offense, section 246.3. Given this position, the People conclude that "there is no need to reach the question of whether [defendant's] admission that he personally shot into an Oklahoma residence was sufficient evidence of 'personal use,' within the meaning of . . . sections 246.3 and 1192.7, subdivision (c)(8)."
In regard to the People's argument, they assert section 246 (the malice offense) and section 246.3 (the negligence offense) are both general intent crimes, and the word "malice" in section 246 means "an intentional act." The People contend that since section 246 and the Oklahoma statute both require a willful and intentional discharge of a firearm, and the Oklahoma statute does not mention negligence, then the Oklahoma offense is more closely aligned with the greater, malice offense (§ 246).
Contrary to the People's position, the term "maliciously" in section 246 does not equate with "intentionally"; rather, as set forth ante, it means "'a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.'" (People v. Watie, supra, 100 Cal.App.4th at p. 879.) Accordingly, we are not persuaded by the portion of the People's argument that asserts "maliciously" is akin to "intentionally."
Next, as to the lack of negligence in the Oklahoma statute, we agree the Oklahoma statute does not involve the term "negligent"; rather, the statute uses the words "willfully or intentionally." The information charged defendant with discharging a firearm into a dwelling "without regard to the safety of the occupants thereof." As set forth ante, it is not clear if defendant pled guilty to the facts in the information or guilty to the elements of the statute. Also as set forth ante, "If the elements of the strike offense allowed a conviction for conduct that might not have qualified as a serious felony, unless other evidence in the record shows the nature of the conduct that led to the conviction, we must presume the prior conviction was based on the least punishable offense. [Citations.]" (Towers, supra, 150 Cal.App.4th at p. 1277.) In the instant case, since it is unclear whether defendant pled guilty to the statutory elements, which may be akin to section 246, or whether he pled guilty to the facts charged in the information, which allege reckless behavior, we must presume that the least punishable offense applies—that involving reckless behavior, which is more closely related to the lesser offense, section 246.3.
In other words, the People may be correct the Oklahoma statute equates with the greater California offense (§ 246); however, because it is not clear from the record whether defendant pled to the lesser reckless conduct alleged in the information, we must presume the conviction was based on the lesser offense (§ 246.3). Thus, we find the People's argument unpersuasive—not because the Oklahoma statute is more closely aligned with section 246.3, but because the record is unclear and includes a factual allegation of lesser conduct that invokes the presumption the conviction was based on the lesser offense.
DISPOSITION
Defendant's sentences for count 2, count 3, and count 4 are reversed. The trial court is directed to resentence defendant on those counts, clarifying whether the sentences are to be served concurrently or consecutively. Defendant's sentence for count 5 is modified to reflect that the sentence is stayed, pursuant to section 654. The true findings as to the Oklahoma conviction qualifying as a prior strike and prior serious felony are reversed. The matter is remanded for a new trial on the serious felony and strike allegations related to the Oklahoma conviction. Following resentencing, the trial court is directed to prepare an amended abstract of judgment (including the modification discussed herein) and to forward a certified copy to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
KING
J.