Summary
In People v. Schoppe-Rico (2006) 140 Cal.App.4th 1370, 44 Cal.Rptr.3d 896 the court found that section 12031, subdivision (a)(2)(C), the street gang firearms statute, does not include a gang connection element.
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No. A104363.
June 29, 2006. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts III.A, III.C, III.D, and III.E.
Appeal from the Superior Court of Contra Costa County, No. 05011510-5, Garrett J. Grant, Judge.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Christina vom Saal and Gregg E. Zywicke, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
I. INTRODUCTION
Appellant John Moses Schoppe-Rico was convicted by a jury of shooting at an occupied vehicle; first degree murder, with a firearm enhancement; and carrying a loaded, concealed firearm while an active participant in a criminal street gang. On appeal, he contends that the statutes defining the street gang firearm offenses require proof that his possession of the firearm occurred in connection with his active gang participation. In the published portion of this opinion, we examine and interpret the street gang firearm possession statutes, and conclude, as a matter of first impression, that they do not require proof that the charged firearm possession was connected with the underlying gang participation. We therefore reject appellant's argument that his convictions under those statutes must be reversed.
Appellant also contends that the trial court erred in admitting evidence stemming from a dog scent discrimination lineup without first determining the scientific validity of that evidence; that there was insufficient evidence of premeditation and deliberation to support his first degree murder conviction; and that the trial court erred in denying his postconviction motion for new counsel without an adequate inquiry. In addition, he asserts that the judgment should be modified to specify that his determinate sentences on the vehicle shooting and firearms charges are to be served concurrently with his indeterminate sentences on the murder charge and related firearm enhancement. In the unpublished portion of this opinion, we accept appellant's contention regarding the concurrent nature of his sentences, and modify the judgment accordingly. With that exception, we reject all of appellant's arguments, and affirm the judgment in its entirety.
II. FACTUAL AND PROCEDURAL BACKGROUND A. The Car Wash Shooting
On September 4, 2000, appellant's then girlfriend, Jennifer Smith, decided that she wanted to "get away from [appellant] for a while." Smith arranged to meet a friend, Sharon Fawcett, at a car wash, where Smith got into Fawcett's car and sat in the passenger seat. When Smith told appellant that she intended to leave with Fawcett, appellant demanded that she come home with him instead. Smith refused to do so, and appellant then pulled out his gun and fired four or five shots at Fawcett's car, shooting out two of the tires.
We will refer to this incident as the "car wash shooting." Appellant in effect concedes that he did not offer any factual defense at trial to the charges arising out of this incident.
B. The Murder
On October 17, 2000, Smith again decided to try to separate from appellant. Appellant followed her out of the house, however, and then ran after her and hit her, knocking her to the ground. Smith sought sanctuary in a nearby stranger's house, but appellant came in after her, hit her again, forced her to leave with him, and threatened to get his gun. At that point, another neighborhood resident, Anita Thompson, who did not know Smith but who had herself been a domestic violence victim, invited Smith into her home. She then loosed her roommate's pit bull into the yard in order to keep appellant at bay. About half an hour later, having ascertained that appellant was no longer in sight, Thompson offered to drive Smith to a friend's house. As the two women drove south on Port Chicago Highway, Smith pointed out appellant standing next to a fence close to a bus stop near the intersection of Port Chicago Highway and Pacifica.
Shortly thereafter near the same bus stop, Albert Melton tried to push two heavy shopping carts full of recyclable containers across Port Chicago Highway. Melton's longtime friend, Nick Taylor, saw Melton struggling with the carts and came to his aid. Meanwhile, Nick Taylor's wife, Rita Taylor, went across the street to a small shopping center to run an errand.
All further references to Taylor are to Nick Taylor. Rita Taylor did not see the shooter.
As Melton and Taylor pushed the shopping carts onto the sidewalk, Melton saw a young Hispanic man leaning on the fence near the bus stop. Melton did not know the young man, and neither he nor Taylor said anything to him or made eye contact with him. Without warning, the young man reached under his shirt, pulled out a gun, and fired five or six shots, some of which hit Taylor, and at least one of which came close enough to Melton to pass through his hat. A passerby, Paul Lancaster, also saw the shooting, and observed that the shooter was using a sawed-off .22 rifle. The shooter pointed the gun at Lancaster and fired a couple of shots, but did not hit him. Both Melton and Lancaster then saw the man cross Port Chicago Highway and jump over a retaining wall into a residential area to the east. Taylor died as a result of the gunshot wounds he sustained.
Only two of the trial witnesses — Melton and Lancaster — actually saw the man who fired the fatal shots. Lancaster was unable to identify appellant as the shooter in a field showup shortly after the arrest, and was not asked to identify him at trial.
We note, however, that in Lancaster's trial testimony, he consistently denied having said on the scene that appellant was not, or could not have been, the shooter. Rather, he said the man whom the police showed him shortly after the shooting (i.e., appellant) "could have very easily been" the shooter. Lancaster explained that he was unable to identify appellant as the shooter because he had not seen the shooter's face well enough to identify him based on his features, and the man the police showed him was wearing different clothes and looked taller. He pointed out, however, that he was unsure of the shooter's height, because the shooter was crouching at the time Lancaster saw him firing the shots.
Melton did identify appellant as the shooter in his trial testimony. He also testified at trial that he had told the police during a field showup that appellant had been the shooter, although he was wearing different clothes by the time he was arrested. This testimony was undercut, however, by evidence that in Melton's statements to the police, both at the field showup and at a taped interview a few hours later, Melton was much more equivocal in his identification, saying only that appellant "[c]ould be" the shooter. He also asserted that the shooter had a mustache, whereas appellant had no facial hair.
According to the investigating officers, the witnesses at the scene said the shooter had worn brown khaki pants and a dark shirt. Melton gave a similar description of the shooter's clothes at his taped interview. All of the witnesses described the shooter as Hispanic, and those who mentioned age all indicated that he was young. None of the investigating officers saw anyone in the area other than appellant who matched the description of the perpetrator. In addition, only 10 or 15 minutes passed between when Smith and Thompson saw appellant standing near the bus stop and the time of the shooting, and both women testified that they did not see any other young Hispanic man in the area when they passed the bus stop.
One of the officers, however, testified that several bystanders identified the shooter as a Hispanic man with a white T-shirt and black pants.
Shortly after the shooting, appellant approached a woman named Lydia Williams, who lived in the neighborhood toward which Melton and Lancaster testified the shooter had walked when he left the scene. Williams was pulling out of her driveway, and appellant asked her to give him a ride; she declined. Williams was suspicious, and when she encountered a police officer shortly thereafter, she told the officer, Deputy Whiddon, about the man she had seen. Williams and Whiddon drove around the neighborhood until they spotted appellant on a nearby street. Whiddon, who was on the scene to investigate the shooting, called for backup and arrested appellant. At the time of his encounter with Williams, and when arrested, appellant was wearing a white T-shirt and black shorts.
That afternoon, a resident at 40 Sharon Drive, in the same neighborhood where appellant was arrested, alerted police to the presence of a gun leaning against a fence in her yard, and some clothing under a nearby bush. The clothing consisted of black pants and a gray, nearly new Pro Spirit brand sweatshirt.
At trial, Smith identified the clothing found at 40 Sharon Drive, and linked it to appellant. Smith explained that the black pants belonged to her, and that appellant had been wearing them earlier that morning. She was able to confirm that the pants were hers because a piece of paper in the pocket bore the hospital room number and telephone number of a friend whom she had recently visited in the hospital. The sweatshirt found at 40 Sharon Drive was the same color and brand as a matching sweatshirt and pants outfit that Smith testified she had purchased for appellant shortly before the shooting. During the investigation of the shooting, police seized a pair of matching sweatpants from the front yard of appellant's home.
Smith also testified that appellant owned and frequently carried with him a very distinctive gun, a .22 caliber rifle, which Smith identified as the gun found near 40 Sharon Drive after the murder. The gun had been modified in a unique way by sawing off part of the stock and wrapping the grip in electrical tape. Lancaster testified that the gun used by the shooter was a sawed-off .22 rifle. The prosecution's firearms expert testified that the .22 cartridges and bullets found at the scenes of the murder and the car wash shooting had been compared to those used in test firings from appellant's distinctive gun. The expert concluded that both sets of crime scene cartridges had been fired from appellant's gun, and that the bullets also could have been fired from it, although this could not be determined conclusively. In addition, appellant had gunshot residue on his hands when he was arrested.
Appellant's trial counsel attributed this fact to appellant's having shot off fireworks and fired his gun during the night immediately preceding the shooting.
C. The Trial Court Proceedings
After a preliminary hearing that extended over five months, an information was filed on September 26, 2001, charging appellant with six felony counts: count one, murder (Pen. Code, § 187), with an enhancement for personal use and intentional discharge of a firearm causing death (§ 12022.53, subds. (b), (c), (d)); count two, carrying a loaded firearm while an active street gang member on October 17, 2000 (the date of the murder) (§ 12031, subd. (a)(2)(C)); count three, carrying a concealed firearm while an active street gang member on October 17, 2000 (§ 12025, subds. (a), (b)(3)); count four, discharging a firearm at an occupied motor vehicle (§ 246); count five, carrying a loaded firearm while an active street gang member on September 4, 2000 (the date of the car wash shooting) (§ 12031, subd. (a)(2)(C)); and count six, carrying a concealed firearm while an active street gang member on September 4, 2000 (§ 12025, subds. (a), (b)(3)).After some further delay, caused in part by proceedings to determine appellant's competency to stand trial, appellant's jury trial commenced on February 26, 2003. On March 19, 2003, the jury returned verdicts finding appellant guilty of first degree murder on count one; finding the firearm enhancement true as to count one; and finding appellant guilty as charged on all of the other counts.
Appellant then made a motion to represent himself, or for substitute counsel. The motion for substitute counsel was denied, but the self-representation motion was granted, and appellant represented himself for several months. He eventually reconsidered, however, and on July 29, 2003, appellant's original trial counsel was reappointed. Appellant's counsel then filed a motion for new trial, which the trial court denied on September 26, 2003.
On October 22, 2003, the trial court sentenced appellant to an indeterminate term of 25 years to life on count one (murder); a consecutive indeterminate term of 25 years to life on the enhancement to count one (intentional discharge of a firearm causing death); a determinate term of seven years on count four (shooting at an occupied motor vehicle); and two terms of two years each on counts two and five (carrying a loaded firearm while an active street gang member), to be served concurrently with the principal determinate term. Appellant's sentences under counts three and six (carrying a concealed firearm while an active gang member) were stayed pursuant to section 654. This timely appeal ensued.
III. DISCUSSION A. Dog Scent Evidence
See footnote, ante, page 1370.
On the evening of October 17, 2000, the day of the murder, a dog handler and her bloodhound were asked by police to conduct a procedure known as a "scent lineup." The canine in question had participated successfully in scent lineups during numerous training sessions, but had also sometimes identified an incorrect person before being prompted to try again, and then identifying the correct person. During the scent lineup conducted in this case, appellant and three randomly selected deputy sheriffs stood at locations equidistant from a central point. The dog was placed at the central point, where she sniffed an open plastic bag containing the sweatshirt found at 40 Sharon Drive. The dog then smelled each of the men participating in the lineup, and, according to her handler's interpretation of her actions, identified appellant as the person whose scent matched the scent emanating from the bag. We will refer to the evidence regarding the scent lineup procedure, and the resulting canine identification of appellant, as the "dog scent evidence." Appellant's trial counsel filed a motion to exclude the dog scent evidence, arguing that it could not be admitted without proof that the dog scent lineup procedure was generally accepted by the relevant scientific community, under what is commonly known as the Kelly-Frye test. ( People v. Kelly (1976) 17 Cal.3d 24, abrogated by statute on another ground as explained in People v. Wilkinson (2004) 33 Cal.4th 821, 845-848; Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013.) The motion was denied, as was appellant's motion for new trial on the same grounds. Appellant now renews his Kelly-Frye argument on appeal. As appellant acknowledges, any error in admitting the dog scent evidence in this case is governed by the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. That is, appellant bears the burden of demonstrating on appeal that it is reasonably probable that the outcome of his trial would have been more favorable if the challenged evidence had been excluded. The dog scent evidence was relevant only to the question of appellant's identity as the person who shot Taylor, the murder victim. Therefore, in arguing that the admission of the dog scent evidence was prejudicial, appellant stresses the inconclusive nature of the eyewitness identification evidence introduced by the prosecution. Appellant also stresses that the eyewitnesses' descriptions of the shooter's clothing, as reported to the police on the scene, were at variance not only with the clothes appellant was wearing when he was arrested, but also with the clothes found discarded at 40 Sharon Drive. We concur in appellant's assessment that the eyewitness descriptions and identification testimony in this case were less than compelling. What appellant's argument overlooks, however, is that the prosecution had additional, much more persuasive evidence upon which to rely in identifying appellant as the perpetrator of the murder. The cartridges found at the murder scene, as well as those from the car wash shooting, were shown to have been fired from appellant's distinctive gun, which matched Lancaster's description of the shooter's weapon. Smith's testimony linked appellant to the clothing that was found lying near the gun. Appellant was arrested, with gunshot residue on his hands, in the neighborhood toward which the shooter fled the scene, near the location where the gun and clothing were abandoned. No other person matching the shooter's description was seen in the area by any of the responding police officers or other witnesses. Given all of this circumstantial evidence that appellant was the shooter, it is not reasonably likely that the jury's verdict would have been more favorable to appellant if the dog scent evidence had been excluded. ( People v. Watson, supra, 46 Cal.2d at p. 836.) Thus, we need not and do not reach the issue whether the admission of the dog scent evidence without a Kelly-Frye hearing was error. Even if it was, we concur with the conclusion reached by the trial court, in denying appellant's motion for new trial, that the error was not prejudicial.
B. Street Gang Firearm Offenses
Appellant was charged with four counts of firearm offenses, based on allegations that during both the car wash shooting and the murder, he carried a concealed and loaded firearm. Each of these counts was charged as a felony on the basis of California statutes which we will refer to as the street gang firearm statutes. (§ 12025, subds. (a), (b)(3) [concealed firearm] (section 12025(b)(3)) § 12031, subd. (a)(2)(C) [loaded firearm] (section 12031(a)(2)(C)).) 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(b)(3), 12031(a)(2)(C).)
Section 186.22, subdivision (a) (section 186.22(a)) provides as follows: "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."
The prosecution presented ample evidence that appellant met the statutory definition of an active participant in a criminal street gang, and appellant does not argue otherwise on appeal. Likewise, appellant does not challenge respondent's assertion that his participation in a criminal street gang was with knowledge that the gang's members had engaged in a pattern of criminal gang activity, and that, at least at some point in time, he willfully promoted, furthered, or assisted in felonious conduct by gang members. Rather, he contends that the street gang firearm statutes require that the firearm offenses themselves be committed in connection with the defendant's active participation in a criminal street gang. Based on this interpretation, appellant contends his firearm convictions must be reversed, because this element of the offenses was not established.
This evidence included appellant's own statements to Smith that he was a gang member; Smith's testimony that appellant had engaged in a verbal altercation with a group of men wearing the color of a rival gang, and had pointed his gun at them and fired a shot in the air to chase them away; appellant's numerous tattoos indicating affiliation with the Norteno gang; and the presence in appellant's bedroom of gang graffiti and photographs of appellant with gang members. The prosecution also called a gang expert who testified that appellant had been "validated" by the police as a Norteno gang member in 1996, and described the nature, culture, and violent criminal behavior of the Norteno gang.
In effect, appellant seeks to add what we will refer to as a "gang connection element" to the street gang firearm statutes. His argument is essentially that the relevant provision in each statute — "[w]here the person [who possesses the firearm] is an active participant in a criminal street gang" (§§ 12025(b)(3), 12031(a)(2)(C), italics added) — should be construed to mean something more specific — "where the person [who possesses the firearm] commits such possession in connection with the person's status as an active participant in a criminal street gang."
Appellant raises this argument in two separate procedural contexts. He argues that (1) his motion for acquittal on the street gang firearm charges, made at the close of the prosecution's case under section 1118.1, should have been granted, because the prosecution presented no evidence of the gang connection element; and (2) his conviction on the street gang firearm counts should be reversed because the jury was not instructed that it had to find the gang connection element in order to convict appellant on these counts.
Respondent contends that, even if appellant were correct in his statutory analysis, the prosecution presented sufficient evidence of the gang connection element for the firearm charges to survive appellant's motion for acquittal. As to the gun possession at the time of the murder, respondent argues that the gang connection element was shown by the fact that the victim was wearing blue, the color associated with the principal rival of appellant's gang. As to the gun possession at the time of the car wash shooting, respondent posits that this crime was committed as part of appellant's gang participation because it was "a manifestation of appellant's violent tendencies," which he "fostered specifically to benefit his gang, and its reputation for toughness."
We need not and do not determine whether respondent's factual conclusions regarding this issue are correct. Instead, we address and reject appellant's main argument, i.e., that the street gang firearm statutes incorporate a gang connection element. This contention raises a pure question of law requiring interpretation of the relevant statutes, as to which our standard of review is de novo. ( People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432 [ 101 Cal.Rptr.2d 200, 11 P.3d 956]; People v. Love (2005) 132 Cal.App.4th 276, 284 [ 34 Cal.Rptr.3d 6].)
As evidence that the color of the victim's clothing was the motive for the murder, respondent cites the opinion of the prosecution's gang expert. The expert's testimony about the color of the victim's clothing, however, was offered as one of a number of facts supporting the expert's opinion that appellant was still an active gang participant at the time of the murder. The expert was not asked to, and did not, render an opinion that the possession of the murder weapon, or the murder itself, for that matter, were committed in connection with appellant's gang participation. As for respondent's argument proposing a connection between appellant's gang participation and the car wash shooting, it arguably proves too much. If accepted, it would mean that every violent crime committed by a gang member, no matter how far removed from the perpetrator's gang activities, is ipso facto committed as part of the perpetrator's participation in a gang.
"Our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.] We begin by examining the statutory language, giving the words their usual and ordinary meaning. [Citation.]" ( Day v. City of Fontana (2001) 25 Cal.4th 268, 272 [ 105 Cal.Rptr.2d 457, 19 P.3d 1196]). We construe the words of a statute in context, and to the extent possible, harmonize provisions relating to the same subject matter. ( People v. Shabazz (2006) 38 Cal.4th 55, 67-68 [40 Cal.Rptr.3d 750, 130 P.3d 519]; People v. Robles (2000) 23 Cal.4th 1106, 1114 [ 99 Cal.Rptr.2d 120, 5 P.3d 176] ( Robles); Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [ 248 Cal.Rptr. 115, 755 P.2d 299].)
In this case, we are aided in our interpretive task by the fact that one of the street gang firearm statutes charged against appellant, section 12031(a)(2)(C) (loaded firearm), was analyzed in depth by our Supreme Court in Robles, supra, 23 Cal.4th 1106. In Robles, the defendant was standing on the street with a group of people in gang attire when a police officer saw him discard a gun. After his arrest, the defendant acknowledged that he was a member of a gang. The defendant was prosecuted for carrying a loaded firearm, and the offense was charged as a felony under section 12031(a)(2)(C).
The Supreme Court's interpretation of section 12031(a)(2)(C) in Robles applies with equal force to the identical language in section 12025(b)(2), which was enacted at the same time as part of the Anti-Street Crimes Act of 1995. (Stats. 1996, ch. 787, §§ 1, 2, 3, pp. 4152-4154; see People v. Caudillo (1978) 21 Cal.3d 562, 585 [ 146 Cal.Rptr. 859, 580 P.2d 274], overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6 [ 83 Cal.Rptr.2d 533, 973 P.2d 512], and People v. Escobar (1992) 3 Cal.4th 740, 749-752, fn. 5 [ 12 Cal.Rptr.2d 586, 837 P.2d 1100] [identical language in two statutes dealing with the same subject matter should be given the same meaning, especially if enacted at the same time].) Neither party here argues otherwise. Thus, for the purpose of deciding the issue raised by appellant in this case, we draw no distinction between the two street gang firearm statutes.
After the preliminary hearing, the defendant in Robles moved to dismiss the felony complaint on the ground that the prosecution had shown only that he actively participated in a gang, and had not proven the other elements of section 186.22(a), that is, knowledge of the gang's pattern of criminal activity, and willful promotion, furtherance, or assistance of the gang's felonious conduct. ( Robles, supra, 23 Cal.4th at pp. 1109-1110.) Thus, the issue in Robles was whether the street gang firearm statutes elevate the firearm offense to a felony if the defendant satisfies just one particular element of the offense defined in section 186.22(a), i.e., active participation in a criminal street gang, or do so only if the defendant also meets the additional criteria for the substantive offense defined in section 186.22(a). ( 23 Cal.4th at pp. 1111-1112.)
The Supreme Court concluded in Robles that the prosecution in a street gang firearm case must prove that the defendant satisfies all of the elements of section 186.22(a). ( Robles, supra, 23 Cal.4th at p. 1115.) However, the Robles court was not required to address the issue appellant raises in the present case, i.e., whether the firearm offense itself must occur in connection with the defendant's gang participation.
Nevertheless, in analyzing the legislative intent behind the street gang firearms statutes, the Robles court shed significant light on the question now before us. As the Robles opinion pointed out, the offense defined by section 186.22(a) itself is subject to an enhancement under section 12021.5, subdivision (a), but only if the section 186.22(a) offense is treated as a felony, and the perpetrator carries a firearm during the commission of the crime. ( Robles, supra, 23 Cal.4th at pp. 1112-1113.) "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)." ( Id. at p. 1113.)
Section 12021.5, subdivision (a), provides in pertinent part that: "Every person who carries a loaded or unloaded firearm on his or her person, or in a vehicle, during the commission or attempted commission of any street gang crimes described in subdivision (a) or (b) of Section 186.22, shall, upon conviction of the felony or attempted felony, be punished by an additional term of imprisonment in the state prison for one, two, or three years in the court's discretion."
We recognize that the portion of Robles just quoted is dictum, but nonetheless find its analysis highly persuasive. 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. (Cf. People v. Shabazz, supra, 38 Cal.4th at pp. 67-68 [statutory interpretation that renders related provisions nugatory must be avoided].) As pointed out in Robles, if so construed, 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. Appellant has cited no legislative history or other authority supporting the view that the Legislature intended the street gang firearms statutes to have such an extremely narrow application. 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. ( Robles, supra, 23 Cal.4th at p. 1113.)
The cases appellant relies upon to support his contrary interpretation are People v. Ngoun (2001) 88 Cal.App.4th 432 [ 105 Cal.Rptr.2d 837] ( Ngoun) and People v. Ferraez (2003) 112 Cal.App.4th 925 [ 5 Cal.Rptr.3d 640] ( Ferraez). Both of these cases, however, involved convictions under section 186.22(a) itself, not firearms charges that were elevated to felonies under the street gang firearm statutes.
In Ngoun, the issue was whether the defendant was properly convicted of "promot[ing], further[ing], or assist[ing] in . . . felonious criminal conduct by members of [his] gang" (§ 186.22(a)), when it was undisputed that the defendant was the perpetrator, and not merely an aider and abettor, of the murder and assaults on which the charge was based. ( Ngoun, supra, 88 Cal.App.4th at pp. 434-435.) The Ngoun court held that section 186.22(a) imposes liability on principals as well as aiders and abetters of gang-related crimes. This holding lends no support to appellant's argument about the meaning of the street gang firearm statutes.
In Ferraez, supra, 112 Cal.App.4th 925, not only was the defendant charged with violating section 186.22(a), but also an enhancement was alleged under section 186.22, subdivision (b)(1) (section 186.22(b)(1)). In order for the enhancement to apply, section 186.22(b)(1) requires the defendant to be "convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. . . ." Thus, in resolving the defendant's challenge to the sufficiency of the evidence supporting his conviction, the court necessarily considered the question whether the defendant "intended to further the gang's felonious conduct by selling drugs." ( Ferraez, supra, 112 Cal.App.4th at p. 929.)
The street gang firearm statutes, in contrast, contain no language equivalent to the provision in section 186.22(b)(1) requiring that the firearm possession be committed with the specific intent to promote, further, or assist in any criminal conduct by the gang. Thus, the Ferraez court's discussion of whether the defendant's drug sale was gang related has no bearing on whether the defendant in a street gang firearm case must possess the concealed or loaded firearm in connection with the defendant's active participation in a gang.
Our own research has disclosed only one other published opinion bearing on this issue, which neither party has cited. In People v. Flores (2005) 129 Cal.App.4th 174 [ 28 Cal.Rptr.3d 232] ( Flores), Division Three of the Fourth District Court of Appeal held that because all the elements of section 186.22(a) must be shown in order to convict a defendant of a felony street gang firearm offense, the section 186.22(a) offense is a necessarily included offense of the felony street gang firearm offense. ( 129 Cal.App.4th at p. 184.) In its discussion of this point, the Flores court stated that the defendant "could not have committed [the street gang firearm offense] without necessarily committing [the section 186.22(a) offense] at the same time." ( Ibid.) While superficially this language in Flores might appear to support appellant's position in this case, upon closer examination it does not, for several independent reasons.
First, in Flores, the Attorney General conceded that the defendant was correct that his section 186.22(a) conviction should be reversed as a necessarily included offense, and the court did not analyze the question in detail in its opinion. (See Flores, supra, 129 Cal.App.4th at p. 184.) Respondent here has made no equivalent concession.
More importantly, in Flores both the section 186.22(a) charge and the street gang firearm charge stemmed from a single incident. (See Flores, supra, 129 Cal.App.4th at pp. 178-180.) Thus, the street gang firearm offense happened, in fact, to have been committed in connection with an underlying gang crime. Given the factual intersection of the two events in that case, the section 186.22(a) charge became a lesser included offense of the firearm offense. But Flores cannot be read so broadly as to support appellant's position that the street gang firearm statutes require that the firearm offense occur in connection with the defendant's active gang participation. That issue simply was not presented or addressed under the facts of Flores.
For the foregoing reasons, we conclude that the street gang firearm statutes do not include a gang connection element. This disposes not only of appellant's argument that his motion for acquittal should have been granted because the gang connection was not proven, but also of his argument that his convictions under the street gang firearm statutes must be reversed because the jury was not instructed that it had to find a gang connection in order to convict him of the firearm offenses. We therefore reject appellant's challenge to his convictions under the street gang firearm statutes.
Appellant also relies on his gang connection element claim as the basis for an additional contention. He argues that because the street gang firearm charges should have been dismissed, the trial court erred in admitting evidence of appellant's gang membership and activities. Averring that this evidence was highly prejudicial to appellant's defense case on the murder charge, appellant contends his murder conviction should be reversed. Because we have rejected the premise of this argument, we also reject its conclusion.
C.-E.
See footnote, ante, page 1370.
C.
Sufficiency of Evidence of First Degree Murder
In addition to his other arguments challenging his murder conviction, appellant contends that the evidence of premeditation and deliberation is insufficient to support his conviction for first degree murder. In assessing appellant's challenge to the sufficiency of the evidence, we are required to "'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" ( People v. Hawkins (1995) 10 Cal.4th 920, 955, italics added, overruled on other grounds by People v. Blakeley (2000) 23 Cal.4th 82, 89, and People v. Lasko (2000) 23 Cal.4th 101, 110; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Moreover, "we are bound to give due deference to the trier of fact and not retry the case ourselves." ( People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) In other words, in evaluating a claim of insufficiency of the evidence on appeal, the test is not whether we ourselves believe that the evidence proves guilt beyond a reasonable doubt, but rather whether substantial evidence supports the jury's conclusion that it does. ( In re Jose P. (2003) 106 Cal.App.4th 458, 465-466.) We cannot reverse a conviction on a claim of insufficient evidence unless it clearly appears "that upon no hypothesis whatever is there sufficient substantial evidence to support it. [Citation.]" ( People v. Redmond (1969) 71 Cal.2d 745, 755.) On the specific question of premeditation and deliberation, Division One of the Fourth District has succinctly summarized the principles governing our review, as follows: "In reviewing the sufficiency of the evidence of premeditation and deliberation, we assess whether the evidence supports an inference that the killing occurred as the result of preexisting reflection, as opposed to an unconsidered or rash impulse. [Citation.] We do not substitute our judgment for that of the jury. Rather, we must draw all inferences in support of the verdict that can reasonably be deduced and must affirm the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational jury could find premeditation and deliberation beyond a reasonable doubt. [Citations.] [¶] Pertinent categories of evidence bearing on premeditation and deliberation are (1) planning activity; (2) motive; and (3) manner of killing. [Citation.] However, these factors need not all be present, or in any special combination; nor must they be accorded a particular weight. [Citation.] Rather, the [listed] factors serve as an aid to reviewing courts in assessing whether the killing was the result of preexisting reflection. [Citation.] Finally, it is important to keep in mind that deliberation and premeditation can occur in a brief period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity[,] and cold, calculated judgment may be arrived at quickly. . . .' [Citation.]" ( People v. Garcia (2000) 78 Cal.App.4th 1422, 1427-1428; see People v. Anderson (1968) 70 Cal.2d 15, 27.) Appellant's sufficiency of the evidence argument stresses several facts which he contends militate against a finding of premeditation and deliberation. First, the weight of the evidence indicated that appellant was angry and agitated on the morning of the murder due to his earlier domestic dispute with Smith. Second, the shooting occurred in the presence of several eyewitnesses, which appellant argues undercuts the inference that the murder was deliberately planned. Finally, the only arguable evidence of motive offered by the prosecution was the fact that the victim was wearing the color associated with a rival of appellant's gang. These facts, however, are not so inconsistent with premeditation and deliberation as to require us to conclude that a reasonable jury could not have found appellant guilty of first-degree murder. On the other side of the evidentiary balance, the jury had the following additional facts to consider. During appellant's altercation with Smith earlier in the morning on the day of the murder, appellant threatened Smith by saying, "Don't make me get my gun." When Smith still refused to come home with appellant, he responded by saying, "That's it. I'm getting my gun. You did it now. I'm getting my gun." The jury could reasonably have concluded that during the interval of about half an hour between appellant's utterance of these threats and his murder of Taylor, appellant formulated the intent of using his gun to commit a violent assault; went back to his house and collected it; proceeded to the bus stop with that purpose in mind; and then carried out his intent by firing several shots at close range at a victim selected on the spot. This fact pattern indicates planning activity, and thus is entirely consistent with a finding of premeditation and deliberation, even if the ultimate target of appellant's murderous intent was not selected until the last minute. (See People v. Francisco (1994) 22 Cal.App.4th 1180, 1191-1192 [evidence that defendant gang member obtained gun in order to shoot someone, drove around looking for someone to shoot, and then fired several shots at close range at group of people wearing colors of rival gang, was sufficient to support finding of premeditation and deliberation].) Furthermore, appellant's notebook, which was seized in a search of his home shortly after the murder, contained writings which the prosecution's gang expert testified referred to killing members of the rival Sureno gang, whose color was blue — the color Taylor was wearing when he was killed. This evidence clearly bears on the factors of planning activity and motive, and although we did not find it particularly persuasive in establishing that appellant was in fact the shooter, it carries significantly more weight on the question whether, assuming appellant was the shooter, his crime was characterized by premeditation and deliberation. (See People v. Sanchez (2001) 26 Cal.4th 834, 849 ["'A studied hatred and enmity, including a preplanned, purposeful resolve to shoot anyone in a certain neighborhood wearing a certain color, evidences the most cold-blooded, most calculated, most culpable, kind of premeditation and deliberation.' [Citation.]" (Italics omitted)].) Finally, Melton testified that he and Taylor did not interact with appellant prior to the shooting, and there was no evidence that they did anything to provoke him. Rather, appellant pulled out his gun without warning; fired repeatedly, first at Melton and Taylor and then at Lancaster; and then simply walked away. The evidence that appellant fired multiple shots at several different people, without any apparent provocation, and then left the scene at a walking pace, also supports the jury's finding that appellant acted with premeditation and deliberation, based on the manner of killing. (See People v. Francisco, supra, 22 Cal.App.4th at pp. 1191-1192; cf. People v. Hawkins, supra, 10 Cal.4th at pp. 956-957 [evidence that victim was killed "execution-style" by shots to the head from above supported conviction of premeditated murder, even where evidence of planning and motive was minimal or absent].) Given the state of the record, as outlined above, the applicable standard of review constrains us to reject appellant's sufficiency of the evidence challenge to his first-degree murder conviction. Although the evidence of premeditation and deliberation in this case "was admittedly not overwhelming, . . . 'we need not be convinced beyond a reasonable doubt that defendant premeditated the murder. The relevant inquiry on appeal is whether "' any rational trier of fact'" could have been so persuaded.' [Citations.]" ( People v. Wharton (1991) 53 Cal.3d 522, 546.) Accordingly, we reject appellant's contention that the evidence is insufficient to support his conviction of first-degree murder.
D.
Marsden Motion Appellant's next argument on appeal is that the trial court erred in denying his motion to relieve counsel under People v. Marsden (1970) 2 Cal.3d 118 ( Marsden) without conducting an adequate inquiry. Because appellant's Marsden argument is very fact-specific, we will describe the relevant proceedings in some detail.
1. Facts and Procedural History
Appellant was arrested on October 17, 2000, almost immediately after the murder. Counsel from the public defender's office was appointed to represent him sometime prior to April 2, 2001, and he was represented by the same public defender from then on, through the end of trial. The jury returned its verdict against appellant on March 19, 2003. On April 11, 2003, appellant told his appointed counsel that he wished to represent himself during the posttrial phase of the proceedings. Appellant's counsel promptly brought the matter to the court's attention, and a hearing was held on April 18, outside the presence of the prosecutor. By that time, appellant's trial counsel had been representing him for at least two years. As appellant acknowledged on the record, the April 18 hearing was the first time he had indicated to the court that he was in any way dissatisfied with his attorney's services. Even then, appellant said his attorney had "been doing fine and everything," though he qualified this by saying that he felt that "[m]aybe she had missed something" on his case, and "found it difficult talking to her" about it. Appellant admitted, however, that he had never told a judge that he had problems talking with his attorney, and had never made a motion to relieve her as his counsel. The trial judge asked appellant to fill out a form regarding his right of self-representation under Faretta v. California (1975) 422 U.S. 806 ( Faretta). On the form, appellant explained that he wished to represent himself because "I feel I could do the job in presentation of evidence on my behalf, I would have a clear understanding on the right to be informed of charges, I feel information has be [ sic] withheld from me, and if I represent myself I would have clear understanding on my case." (Original capitalization modified.) After receiving the completed form, the judge asked appellant whether he was seeking self-representation "because you're somehow dissatisfied with the way in which your attorney has been representing you," or "simply because you feel that you now want to represent yourself on the sentencing hearing?" Appellant said it was "both," but although he answered affirmatively when the judge asked him whether he was dissatisfied with his attorney, he went on to say, "But she's done a great job, also." The trial judge responded by asking appellant to tell him what the problem was with his attorney. Appellant responded by repeating that "sometimes I find it kind of difficult talking to my lawyer." The judge requested details, and ultimately elicited the response that appellant felt he had been "wrongly convicted, because we wasn't [ sic] able to come forward with, like, certain evidence, maybe, that she was unable to get to on time or something." In response to the trial judge's prompting, appellant confirmed that what he was saying was that his counsel had failed to obtain evidence that should have been presented at trial. Asked to specify the missing evidence, appellant referred to "witnesses coming forward," and "a whole lot of other questions that should have been asked" on cross-examination. The trial judge then asked appellant's trial counsel to explain. Trial counsel averred that appellant had not complained to her prior to "the past few weeks"; that except for a disagreement with regard to appellant's ability to retain copies of the police reports she had shown him, the first time appellant had expressed dissatisfaction with her performance was April 11; and that appellant's complaints to her had been essentially the same as those he raised in court. Trial counsel also explained that earlier during the pendency of the case, appellant had given her information about witnesses whom she had not been able to find, including the first name and address of a person who he said would testify that he had had appellant's gun. Counsel reported that her investigator had gone to that address "many times," knocked on the door and waited, and even gone there with Smith, who was trying to help appellant's defense team locate the person, but they were never able to locate the person. The judge then confirmed that appellant was not only seeking self-representation, but also making a motion to relieve his counsel, and asked again about appellant's dissatisfaction. Appellant said again that there were questions for the witnesses that he had pointed out to his counsel during the trial, but that she had not asked. After explaining that counsel has the authority to make decisions about what questions to ask witnesses, the judge asked whether appellant had "[a]ny other reason why you feel you ought to relieve [trial counsel] from representing you, other than what you've told me so far?" Appellant responded only that his counsel had agreed that he had the right to move for self-representation; his counsel confirmed this, but affirmed that she felt capable of continuing to represent appellant. The trial judge then asked appellant again whether there was "anything else you want to add about a reason why I should relieve your attorney," adding that "that's a different question than whether or not you want to represent yourself," and repeating the question several times. The judge emphasized that "I want to give you a full chance to say anything you want to say about why you think she's not adequately representing you." Appellant responded that "I just think if I was able to represent myself and get to the sources, my files, you know, the case files and everything, I think I'd probably be able to conduct a better investigation." The judge then pointed out that the trial was over, so "the only investigation we're going to be talking about now is possibly a motion for a new trial," and sentencing. Appellant indicated he might indeed want to file a motion for new trial, and indicated a desire for better access to his file. Appellant's counsel verified that he had been shown all the information in his file, but had not been given copies of the police reports because she was concerned about other jail inmates having access to them, and the judge offered appellant an opportunity to go through the file in the courtroom. Appellant reiterated that he wanted to relieve his counsel "right now," but also asked that she be appointed as advisory counsel. The judge then asked appellant again to specify why he was unhappy with his counsel. Appellant indicated that although counsel had gone over the police reports "and stuff" with him, he had forgotten some of the information over the course of time; "wasn't able to really understand and get to the bottom of the facts of my case," and "didn't have any access to anything on my behalf." He also complained that his counsel "wasn't able to come to my assistance every time I felt like I needed to know more facts on my case." Appellant's counsel stated that during the two and one-half years she had been representing appellant, she had visited him a few times a month, on average, and talked to him on the phone more than that. Other than the disagreement about "the one witness who[m] we couldn't find," counsel reported no major disagreements with her client about strategy or anything else about the case. The judge then asked appellant whether there was anything else he wanted to add, and appellant said there was not. The trial judge found that appellant had not given adequate grounds for substitution of counsel, denied appellant's Marsden motion, and continued the matter until the following week to give appellant more time to consider whether he wished to exercise his right to self-representation. At the next hearing, on April 23, the court inquired further into appellant's understanding of the implications of self-representation. In the course of that inquiry, the court again asked appellant about his dissatisfaction with his trial counsel, and specifically his claim that his attorney had failed to locate witnesses. Appellant confirmed that he felt he "might be able to locate witnesses, if [he] was able to take charge of the case," but when asked how he could accomplish this better than his counsel, appellant was able to say only that he would have a "better methodology." At the conclusion of the hearing, the court granted appellant's Faretta motion, but retained appellant's original counsel as standby counsel in the event appellant changed his mind. At the next hearing, on May 19, the court reiterated that although appellant's original counsel had been placed on standby, she had not been appointed as advisory counsel, and told appellant that if he wanted advisory counsel, he would have to find a private attorney for that purpose. Appellant then filed a motion asking the court to appoint a different attorney, whom he named in the motion, to represent him. Attached to this motion was a declaration from appellant in which he set forth the grounds for his motion for new counsel, citing Marsden and other authorities. The declaration described in conclusory terms numerous asserted failures on the part of appellant's counsel, such as that she had "made certain promises that she has not kept"; that she "is aware of certain relevant facts w[h]ich might aid the defense, but has [failed] and is failing to put [them] before the court"; that counsel had said she would file an unspecified motion that she had not yet filed; and that appellant "has told the attorney of certain relevant evidence and the attorney has failed to investigate this evidence." No specifics were given, however. The trial court denied appellant's request for the appointment of the specified new attorney at a hearing on June 13, again explaining that appellant could ask to have his original trial counsel from the public defender's office reappointed, or retain private counsel of his choice, but that he could not select his own appointed counsel. Finally, on July 29, after appellant had filed a number of motions on his own behalf, and all of them had been denied, appellant was persuaded to reconsider his decision to represent himself. At that point, the trial court reappointed appellant's original counsel, who filed a motion for new trial on his behalf and represented him at his sentencing hearing.
Our record does not include a register of actions, and contains no information concerning what transpired between appellant's arrest and the start of the preliminary hearing, which occurred on April 2, 2001. By then, at least, appellant's trial counsel was already representing him.
All further references to dates are to the year 2003 unless otherwise noted.
2. Discussion
A defendant represented by appointed counsel may request substitution of a new attorney if the defendant's right to counsel would be substantially impaired by continuing with the original attorney. ( Marsden, supra, 2 Cal.3d at p. 123.) The trial court's decision declining to discharge appointed counsel is reviewed for abuse of discretion. ( People v. Cole (2004) 33 Cal.4th 1158, 1190 ( Cole); People v. Berryman (1993) 6 Cal.4th 1048, 1070 ( Berryman), overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. mith (1993) 6 Cal.4th 684, 696 ( Smith).) A request for the substitution of appointed counsel should be granted only when the record clearly shows that counsel is not providing competent representation, or that defendant and counsel are embroiled in such an irreconcilable conflict that ineffective representation is likely to result. ( Cole, supra, 33 Cal.4th at p. 1190; Smith, supra, 6 Cal.4th at p. 696.) Mere "[t]actical disagreements between the defendant and his attorney do not by themselves constitute an 'irreconcilable conflict.' 'When a defendant chooses to be represented by professional counsel, that counsel is "captain of the ship" and can make all but a few fundamental decisions for the defendant.' [Citation.]" ( People v. Welch (1999) 20 Cal.4th 701, 728-729, overruled on another ground in People v. Blakeley, supra, 23 Cal.4th at pp. 90-91.) When a defendant requests the substitution of appointed counsel, the trial court must conduct a hearing to allow the defendant to state the reasons for the request for substitution of appointed counsel, giving the defendant an opportunity to relate specific instances of counsel's asserted inadequacy. ( Cole, supra, 33 Cal.4th at p. 1190; People v. Hill (1983) 148 Cal.App.3d 744, 753, 755 ( Hill); Smith, supra, 6 Cal.4th at p. 690; Marsden, supra, 2 Cal.3d at pp. 123-125.) The court should also allow defense counsel an opportunity to respond to these complaints, on the record and in the defendant's presence. (See Hill, supra, 148 Cal.App.3d at p. 755 [trial court erred by ex parte, informal questioning of counsel].) Where the parties' views of the facts differ, the trial court may resolve those conflicts in favor of defense counsel. (See, e.g., Smith, supra, 6 Cal.4th at p. 696.) "[T]he court must consider any specific examples of counsel's inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would 'substantially impair' the defendant's right to assistance of counsel. [Citations.]" ( People v. Webster (1991) 54 Cal.3d 411, 435 ( Webster); see also Berryman, supra, 6 Cal.4th at p. 1070.) In the present case, our review of the record discloses that the trial judge made every effort to comply with the duty of reasonable inquiry. The judge diligently sought to determine whether appellant actually had any valid grounds for appointment of new counsel, and gave appellant every opportunity to specify such grounds. Moreover, appellant does not dispute that his trial counsel offered reasonable explanations for each of the asserted deficiencies in her performance that he was able to articulate. Appellant nonetheless argues that the trial court's inquiry into the grounds for his Marsden motion was inadequate, because when he asserted that his counsel had failed to contact "witnesses" (plural), the trial court accepted counsel's account of her diligent efforts to locate one such witness, without following through and determining whether there were other witnesses whom counsel had failed to locate. The record shows, however, that the judge gave appellant several opportunities to specify other grounds of dissatisfaction, after counsel had explained the facts regarding the one specific witness appellant was able to identify as "missing." If appellant actually had other witnesses in mind, it was incumbent upon him to bring them up at that point. The court's duty of inquiry on a Marsden motion is satisfied by considering "any specific examples of counsel's inadequate representation that the defendant wishes to enumerate." ( Webster, supra, 54 Cal.3d at p. 435.) The court is not required to elicit and consider additional specifics that the defendant himself is unable or unwilling to articulate. Appellant also contends that the trial court erred in failing to ask for further details regarding other complaints he raised regarding his counsel's performance. These complaints included unspecified questions that appellant contended his counsel should have asked on cross-examination, and a laundry list of other shortcomings that appellant asserted in conclusory terms in the written Marsden motion that he filed after his motion for self-representation had already been granted. None of these other complaints, however, was presented with sufficient specificity to raise any real issue as to the adequacy of appellant's counsel's performance. We decline to require more of our trial courts, when faced with a Marsden motion, than the conscientious and diligent inquiry regarding appointed counsel's asserted shortcomings that was conducted by the trial court in this case. No principles expressed in Marsden require the court to do more than consider all the grounds for dissatisfaction with appointed counsel that the defendant is actually able to present. Here, the trial court repeatedly gave appellant opportunities to specify the grounds of his dissatisfaction, only to be met, each time, with only vague generalities in response. Under the circumstances, no remand is needed in order for us to ascertain that the trial court did not abuse its discretion in denying appellant's Marsden motion.
E.
Modification of Sentence As already noted, the trial court sentenced appellant to an indeterminate term of 25 years to life in prison on the murder count, plus a consecutive indeterminate term of 25 years to life on the related firearm enhancement. The court also imposed a determinate sentence of 7 years in prison for the car wash shooting, plus 2 years each on the two loaded weapon street gang firearm counts, to be served concurrently with the principal determinate term. The trial court did not state at the hearing whether the determinate term was to be served concurrently with or consecutively to the indeterminate term. The trial court's two abstracts of judgment, one for the indeterminate term and one for the determinate term, also fail to address this issue. The clerk's minutes of the sentencing do state that the indeterminate sentence is to be served consecutively to the determinate sentence, but no basis for this statement appears in the reporter's transcript of the sentencing or in any order signed by the trial judge. Appellant now argues that his sentence should be clarified in accordance with the provision in section 669 that if the trial court fails to determine whether two terms of imprisonment are concurrent or consecutive, they shall run concurrently. Appellant also cites People v. Caudillo (1980) 101 Cal.App.3d 122, 126-127 for the proposition that a criminal sentence must be expressed in the form of an order by the court, and cannot be added to or modified by the clerk's minutes or the abstract of judgment. Based on these authorities, appellant contends that we should modify the judgment to provide that his indeterminate and determinate sentences be served concurrently. Respondent concedes the validity of appellant's contention, and we appreciate respondent's candor in so doing. Accordingly, we modify the judgment to provide that the aggregate prison term imposed upon appellant under the determinate sentencing law shall be served concurrently with his two consecutive sentences of 25 years to life imposed under the indeterminate sentencing law. The trial court is directed to enter an order correcting the clerk's minutes for October 22, 2003, by deleting the paragraph providing that "The determinate term . . . is to be served before the indeterminate term. . . ." The trial court shall forward a copy of that order to the Department of Corrections, together with amended abstracts of judgment for appellant's determinate and indeterminate terms, each of which shall expressly indicate that the determinate sentence is to be served concurrently with the indeterminate sentence.
The relevant portion of section 669 states that "Upon the failure of the [sentencing] court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently."
The paragraph to be excised from the clerk's minutes reads in its entirety as follows: "The determinate term as set forth in Counts Four, Two, Three, Five and Six is to be served before the indeterminate term as set forth in Count One and it's [ sic] enhancement." (Capitalization in original.)
C. Accounting The action for an accounting is equitable in nature and may be brought to compel the defendant to account to the plaintiff for money where a fiduciary relationship exists. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 775, p. 233.) The elements of a claim for accounting are (1) a fiduciary relationship and (2) a balance due from the defendant to the plaintiff that can only be determined by an accounting — that is, the sum is not certain and cannot be made certain by calculations. (5 Witkin, supra, § 776, p. 233.) Because appellant has pled a claim for breach of fiduciary duty and adequately alleged the amount owed is uncertain, we conclude that appellant's complaint adequately stated a claim for accounting. D. Negligence First, the theories that respondents were commission merchants or subagents in relation to appellant provide the basis for the allegation that they owed appellant a fiduciary duty. Second, paragraph 42 of the complaint alleges that respondents "negligently breached their duty of due care they owed" appellant. The breaches incorporated into the negligence claim include the specific allegation from paragraph 26 of the complaint that respondents failed to remit the amount realized from sales. Third, the complaint alleges that, as a proximate result of respondents' negligence, appellant received less than the prevailing market price for his pomegranate crop. Accordingly, one possibility covered by these allegations is that a respondent failed to remit the proper amount owed to appellant because the respondent was negligent in its calculations. We conclude that the complaint adequately states the existence of a duty based on a fiduciary relationship, the breach of that duty, and damages proximately caused by the breach. Accordingly, the complaint states a cognizable claim for negligence.
See footnote, ante, page 1.
See footnote, ante, page 1.
To the extent that appellant attempted to claim that misrepresentations were made negligently to him, the allegations in the complaint fail to meet the stricter pleading standards application to negligent misrepresentation claims. (See part V., post.)
IV.-V.fn_ IV. Breach of Contract and Breach of Covenant of Good Faith and Fair Dealing fn_ To state a claim for breach of contract, a plaintiff must plead (1) the existence of a contract between the parties; (2) the plaintiff's performance or excuse for nonperformance; (3) the defendant's failure to perform (breach); and (4) resulting damages. ( Careau Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) "[A] plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action." ( Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.) Appellant's opposition to the motion for judgment on the pleadings "readily acknowledges that the first three causes of action [for breach of contract, breach of the covenant of good faith and fair dealing, and negligence] are imprecisely pleaded against [respondents]." Appellant then appeared to argue that he (1) had contractual rights against respondents by virtue of the contract with Rast and (2) was a third party beneficiary of the contracts between Rast and respondents. The only contract mentioned in the complaint's first cause of action is the Marketing Agreement between Rast and appellant. First, none of respondents are listed in the Marketing Agreement as being a party to it. Second, appellant has not alleged that respondents and Rast entered contracts to which appellant was a third party beneficiary. Third, appellant has not alleged that he was a party to any contract (sale or consignment) entered by respondents and Rast based on his status as Rast's principal. Consequently, appellant has failed to sufficiently allege that any of respondents are parties to a contract that he is entitled to enforce. The second count of appellant's complaint, for breach of the covenant of good faith and fair dealing, is based on the existence of a contractual relationship between appellant and respondents. This element, just as with the cause of action for breach of contract, has not been alleged in the complaint. Because the judgment will be reversed as a result of appellant's adequate statement of claims for conversion, breach of fiduciary duty, accounting, and negligence, and because he has proposed potentially viable theories of contractual liability, we conclude that appellant should be granted leave to amend his complaint to state claims for breach of contract and breach of the covenant of good faith and fair dealing.
V. Fraud, Constructive Fraud and Negligent isrepresentation fn_ The pleading requirements for fraud and negligent misrepresentation were discussed by the First Appellate District as follows:
"The well-known elements of a cause of action for fraud are: (1) a misrepresentation, which includes a concealment or nondisclosure; (2) knowledge of the falsity of the misrepresentation, i.e., scienter; (3) intent to induce reliance on the misrepresentation; (4) justifiable reliance; and (5) resulting damages. ( Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173 . . . ( Small).) The same elements comprise a cause of action for negligent misrepresentation, except there is no requirement of intent to induce reliance. ( Ibid.) In both causes of action, the plaintiff must plead that he or she actually relied on the misrepresentation. ( Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1088-1089 fn. 2. . . .)
"Each element in a cause of action for fraud or negligent misrepresentation must be factually and specifically alleged. ( Small, supra, 30 Cal.4th at p. 184.) The policy of liberal construction of pleadings is not generally invoked to sustain a misrepresentation pleading defective in any material respect. ( Ibid.) Thus, the mere assertion of 'reliance' is insufficient. The plaintiff must allege the specifics of his or her reliance on the misrepresentation to show a bona fide claim of actual reliance. ( Ibid.)" ( Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.)The elements of a claim of constructive fraud are (1) a fiduciary relationship, (2) breach of fiduciary duty through nondisclosure of relevant information, (3) intent to deceive, (4) reliance, and (5) resulting injury (causation). ( Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 517, fn. 14.) Thus, constructive fraud involves "the nondisclosure by the fiduciary of relevant matters arising from the relationship. [Citation.]" ( Spindle v. Chubb/Pacific Indemnity Group (1979) 89 Cal.App.3d 706, 712.) We conclude the requirements for specific allegations also apply to a claim of constructive fraud. In his opposition filed with the superior court, appellant argued that the complaint might fail to allege fraud with sufficient particularity, but that it sufficiently alleged facts necessary to support a claim for constructive fraud. Paragraph 46 of the complaint states: "At the time [appellant] acted, [appellant] did not know that the representations were false, but believed them to be true, and acted in reliance thereon." Paragraph 47 states that appellant has been damaged in an amount that will be proven at trial. These allegations are insufficient because appellant has not identified (1) the act that he took in reliance on the misrepresentations, (2) how he justifiably relied on the misrepresentations, or (3) how his act in reliance resulted in damage to him. Accordingly, appellant has failed to adequately allege a claim for fraud, constructive fraud, or negligent misrepresentation. Nonetheless, because the judgment will be reversed based on appellant's statement of claims under other legal theories, he should be granted leave to amend his complaint to state one or more of the misrepresentation or nondisclosure claims with particularity. (See Small, supra, 30 Cal.4th at p. 171 [plaintiff granted leave to amend fraud claim].)
Actual reliance occurs when the defendant's misrepresentation is a substantial, immediate cause of the plaintiff's conduct, which alters his legal relations, and when the plaintiff would not, in all reasonable probability, have engaged in that conduct absent the misrepresentation. ( Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th at p. 976.)
IV. DISPOSITION
The judgment is modified to provide that appellant's determinate sentence shall be served concurrently with his indeterminate sentence, and the trial court is directed to correct the record accordingly. Except as so modified, the judgment is affirmed.Reardon, J., and Sepulveda, J., concurred.
Appellant's petition for review by the Supreme Court was denied October 18, 2006, S145493. George, C. J., and Baxter, J., did not participate therein.