Opinion
D057944 Super. Ct. No. RIF143655
01-04-2012
THE PEOPLE, Plaintiff and Respondent, v. SEMMA LAFRANCE STURGES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Riverside County, Richard J. Hanscom, Judge. Affirmed as modified and remanded with directions.
A jury convicted Semma LaFrance Sturges of residential burglary (Pen. Code, § 459, counts 1, 2, 9); robbery (§ 211, counts 3-6, 8, 13); robbery in concert (§ 213, subd. (a)(1)(A), count 7); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1), counts 10, 11, 14); and active participation in a criminal street gang (§ 186.22, subd. (a), counts 12, 15). It found true allegations that Sturges personally used a firearm in connection with the count 2 burglary (§ 12022.5, subd. (a)) as well as the robberies of counts 3 and 6 (§ 12022.53, subd. (b)); another person, other than an accomplice, was present in the residence at the time of the count 3 and count 9 offenses (§ 667.5, subd. (c)(21)); a principal in the offense was armed with a firearm in counts 4 and 5 (§ 12022, subd. (a)(1)); Sturges inflicted great bodily injury when he committed counts 13 and 14 (§ 12022.7, subd. (a)); and Sturges committed counts 7 through 11, 13 and 14 for the benefit of a criminal street gang (§ 186.22, subd. (b)).
All statutory references are to the Penal Code unless otherwise indicated.
The summaries in the parties' briefs indicate that the jury found true all enhancement allegations, including on-bail allegations for counts 7 through 15. The minute order indicates the court dismissed a count 15 on-bail allegation. However, the reporters' and clerk's transcripts contain no jury true findings on any allegation that Sturges was on bail when he committed counts 7 through 15 (§ 12022.1).
The abstract of judgment indicates the court sentenced Sturges to an aggregate determinate term of 39 years, 8 months, and an indeterminate term on count 7 of 15 years to life.
On appeal, Sturges contends: (1) the court lacked jurisdiction to try the count 6 robbery; (2) the section 186.22, subdivision (b) gang enhancement should be stricken as facially unconstitutional and violative of due process; (3) the evidence is insufficient to support the gang enhancement findings on counts 7 through 11, 13 and 14; (4) insufficient evidence supports his count 12 and 15 convictions for active participation in a street gang; (5) the great bodily injury enhancements of counts 13 and 14 should be stricken as resulting from improper dual use of facts; and (6) the court should have stayed his sentence on count 8 under section 654. The People concede, and we agree, Sturges's count 8 sentence should have been imposed but stayed under section 654. Both parties ask that we remand the matter for resentencing, citing an ambiguous and uncertain record as to the trial court's discretionary sentencing choices.
We shall direct the trial court to modify the judgment to stay the four-year, eight-month concurrent sentence for the count 8 robbery and strike the section 12022.7 great bodily injury enhancement on count 14. We conclude however, that remand for a new sentencing hearing is not required because the court's oral pronouncement of judgment is unambiguous and neither party argues Sturges's sentence is unauthorized. Accordingly, we shall further direct the court to issue an amended abstract of judgment to conform to its oral pronouncement of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Count 1 Burglary
On July 27, 2007, Aureliano de la Hoya and his wife returned home from an overnight trip to find their car missing from the garage and their home burglarized, with watches, jewelry and a set of keys missing. His wife called the sheriff's department and investigators recovered Sturges's fingerprints from windows and other places within the house.
Count 2 Burglary and Count 3 Robbery
On May 17, 2008, then 17-year-old Shermaine Thompson returned home from school to find a bed sheet spread out in the middle of her living room floor with her laptop computer, her brother's video game console, and a video camera on top. She heard noises and then saw Sturges come down the stairs. Sturges said, "I'm looking for T.C. because he's got my burner." Thompson knew T.C. to be her best friend's boyfriend. While he spoke, Sturges pulled out a revolver and pointed it toward her. He picked up the sheet and took it out the front door. Thompson identified Sturges in a photographic lineup shown to her by police.
Count 6 Robbery
During the early morning hours of May 29, 2008, Zulema Rodriguez was working at a Fontana 7-11 convenience store when two African-American males entered the store and approached her. One of the men, who she identified as Sturges, pulled out a gun and demanded money. While Sturges pointed the gun at her, Rodriguez opened both cash registers and gave the other man the money compartments. The men took the money and ran out of the store. Rodriguez's coworker saw the robbery but could not identify the assailants.
Counts 4 and 5 Robberies
On May 29, 2008, Tyrone Beckles was working his shift at a convenience store on Mission Boulevard but outside the store on a break. He saw Sturges and another, shorter, African-American male walk into the store. Beckles entered the store to help his coworker, Gerri Varieur, and asked the men if they needed help. The shorter man pulled out a gun, pointed it at Beckles, and told Beckles to open the register and give him the money. He and Varieur opened the tills and gave the men the money. Beckles recalled that Sturges also had a gun that evening. The men left. Varieur could not identify the assailants at trial.
That morning, a deputy sheriff hearing a broadcast that a robbery had just occurred detained Sturges and another man in a white Mitsubishi matching the description of the robbery suspects' vehicle. Officers found $372 in the vehicle's trunk, $11 and change in the backseat, and .22-caliber handgun stuck underneath the backseat cushion. Sturges was found with $50 in his shoe and $224 in his sock.
Counts 7 through 11 Robbery, Burglary and Assault Offenses
In December 2008, Angelo Serrano, who was at the time a former 11-year member of the Perris Locs criminal street gang, was in Malcolm Naufahu's apartment when Sturges, also a Perris Locs member, entered the apartment and asked if they had any marijuana. They responded affirmatively but Sturges said he wanted a "blunt" (a marijuana cigar) and left. About five minutes later, Sturges returned with Greg Miller, Tim Burleson, Sturges's brother Darnell Sturges, and Teviyan Taylor, who shook Serrano and Naufahu's hands, but suddenly began to beat up both men. Sturges shouted out: "Front Line Crips. Give me everything." Miller hit Serrano on the side of his face and he and Sturges went through Serrano's socks and pockets, taking a $100 bill and his cell phone. Serrano testified that Miller, Burleson, Taylor and Darnell Sturges were all Perris Locs members. Serrano was on bad terms with Miller due to his cooperation with police concerning the Perris Locs gang, and Serrano had been subject to threats by Perris Locs members or their relatives as a result.
Naufahu, who testified after a warrant issued for his arrest, admitted knowing Sturges and his brother from school, but denied knowing Serrano, Miller, and Burleson. He denied being a gang member or associating with gang members, and he testified he did not know whether Sturges was a gang member. At trial, he testified he was beaten up by two Mexican men with slicked back black hair. Naufahu was confronted with his preliminary hearing testimony in which he identified the two Mexican individuals as bald-headed.
Count 13 Robbery and Count 14 Assault
On the evening of January 21, 2009, Donald Kettering was leaving a Perris market after cashing a check when he was approached by a young black male, then suddenly grabbed and taken to the ground. He was punched in the face and kicked. The assailants took $460 from him that day. The prosecution played three videos showing Kettering in the store, males entering the store, and Kettering's attack after leaving the store. In a later interview with an investigator with the Riverside County District Attorney's Office, Sturges admitted being at the market with Kettering that day, but claimed he was just helping his friend, Teyvian Taylor, also known as "Tiny Money." Sturges claimed it was Taylor who beat up Kettering.
Counts 12 and 15 Gang Offenses
Sturges admitted to being a Perris Locs gang member in a police interview.
Riverside County Deputy Sheriff Manuel Campos testified that Sturges was a member of the Perris Locs on December 22, 2008, to the end of January 2009. Sturges went by the gang monikers "Little Stuff" and "Savage." Deputy Campos based his opinion on Sturges's tattoos, self-admissions, locations of his contacts, his own and other investigators' contacts with Sturges, and the crimes Sturges had committed in association with other Perris Locs members. Deputy Campos related a number of crimes committed by other Perris Locs gang members not involving Sturges. Presented with hypothetical questions relating to the Serrano assault, Deputy Campos testified that the crime was done in association with other gang members, and that his opinion would not change if Miller had been the one to yell out: "Frontline Crips, give me all you got."
DISCUSSION
I. Jurisdiction over Count 6 Robbery
At the conclusion of evidence, Sturges moved for an acquittal on count 6, the 7-11 robbery, on grounds it was committed outside the court's jurisdiction of Riverside County. Citing section 786, the prosecutor responded that when proceeds from a theft crime are taken from one county to another, venue is proper in either county. He argued Sturges had participated in a continuous crime spree starting with the robbery of Thompson, then the 7-11 robbery in Fontana, and ending up at the Riverside convenience store. He argued the money found in the white Mitsubishi had come from the San Bernardino robbery.
Section 786, subdivision (a) provides in part that "[w]hen property taken in one jurisdictional territory by burglary . . . [or] robbery . . . has been brought into another, . . . the jurisdiction of the offense is in any competent court within either jurisdictional territory . . . ."
The trial court denied the motion. It took judicial notice that Riverside and San Bernardino counties were large and adjacent counties, but Fontana was not a long distance from where officers detained Sturges in the white Mitsubishi. It found sufficient evidence to believe that at least some or all of the money came from the Fontana robbery but was recovered in Riverside County, within the court's jurisdiction.
Sturges contends the court erred by this ruling. He concedes section 786, subdivision (a) would authorize trial of the count 6 robbery if it could be shown that the proceeds of that robbery were transported to Riverside County. He maintains there is no evidence any of the money recovered from the white Mitsubishi came from the 7-11 robbery; and that the court erroneously used a " 'probability' rationale" that constituted "less than a showing of beyond a reasonable doubt."
If by these arguments Sturges asserts the court lacked fundamental jurisdiction, or that the court was required to determine section 786's application by the evidentiary standard of beyond a reasonable doubt, we reject the contentions. As to jurisdiction, the California Supreme Court has squarely held that the question of venue merely establishes the appropriate place for trial and "does not implicate the trial court's fundamental jurisdiction in the sense of subject matter jurisdiction, which is the authority of the court to consider and decide the criminal action itself . . . ." (People v. Posey (2004) 32 Cal.4th 193, 208; see also People v. Betts (2005) 34 Cal.4th 1039, 1049; People v. Rich (2003) 109 Cal.App.4th 255, 260.) Further, the court in Posey held the question of venue is to be decided by the court before trial, not by a jury: "[A]lthough questions of fact relating to the substantive issue of guilt or innocence are within the province of the jury, questions of law concerning procedural issues that do not themselves determine guilt or innocence — including any underlying questions of fact — are within the province of the court." (Posey, supra, 32 Cal.4th at pp. 206-207.) Venue is not an element of any crime or a substantive issue relating to the defendant's guilt or innocence of the crime charged; it is a procedural prerequisite for prosecution. (Id. at p. 208.) Given these principles, the Posey court suggested there is no basis to conclude the question is subject to proof beyond a reasonable doubt. (Id. at p. 208, fn. 6.)
Even if we were to question the sufficiency of the evidence supporting application of section 786, we would in any event hold that any error in denying defendant's motion to dismiss these counts was harmless. Sturges does not point to any prejudice he suffered by having to defend count 6 in Riverside County rather than San Bernardino County. Nor have we independently found any basis for a finding of prejudice. There is nothing in the record to suggest, for example, that witnesses or evidence favorable to the defense would have been available for a San Bernardino County trial but not for the Riverside County trial. (Cf. People v. Simon (2001) 25 Cal.4th 1082, 1095.) Nor is there any basis to conclude a trial in Riverside County was any more inconvenient, burdensome, or hostile to Sturges than a San Bernardino County trial. (Cf. ibid.) Because venue does not present a constitutional issue or issue of fundamental jurisdiction (People v. Posey, supra, 32 Cal.4th at pp. 208-209), error requires reversal only if we conclude that it has resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) Such a conclusion can be made only if, after an examination of the entire cause, including the evidence, we are of the opinion it is reasonably probable that a result more favorable to Sturges would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) On this record, there is no basis to conclude Sturges would have fared any better if his motion was granted and the count 6 robbery had been tried in San Bernardino County. Any error was therefore harmless.
II. Section 186.22
"Section 186.22 was enacted in 1988 as part of the California Street Terrorism Enforcement and Prevention Act (STEP Act), section 186.20 et seq." (People v. Lopez (2005) 34 Cal.4th 1002, 1005.) Subdivision (a) of that section provides for criminal sanctions against "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang[.]" (§ 186.22, subd. (a).) Section 186.22, subdivision (b) provides for sentence enhancements, except in certain cases not applicable here, for "any person who is 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[.]" (§ 186.22, subd. (b)(1).)
As noted in In re Daniel C. (2011) 195 Cal.App.4th 1350, the statute "has recently been amended twice (Stats. 2011, ch. 15, §§ 275, 276; Stats. 2010, ch. 256), but the changes do not affect the quoted language, and are irrelevant to the issues in this case." (Daniel C., 195 Cal.App.4th at p. 1358, fn. 8.)
Sturges advances several different challenges to the section 186.22, subdivision (b) enhancements, as well as to the substantive subdivision (a) offenses of counts 12 and 15. We address them in turn. A. Facial Constitutional Challenge to Section 186.22 Subdivision (b) Enhancements
Sturges asks this court to strike the gang enhancements applied to counts 7 through 11, 13 and 14. He contends section 186.22, subdivision (b) is facially unconstitutional and violates the due process clause in that it imposes punishment without a requirement that the defendant know he was benefiting, acting at the direction of, or acting in association with a criminal street gang. He also complains the statute does not impose a mens rea element requiring the defendant know the persons whose criminal conduct he intended to promote were in fact gang members. Sturges thus criticizes the statute to the extent it allows the gang enhancement to be imposed "even if the defendant has no knowledge he was benefiting a gang and even if he had no knowledge that the person he is assisting was a gang member."
The challenge is without merit. Contrary to Sturges's assertion otherwise, this court in In re Alberto R. (1991) 235 Cal.App.3d 1309, rejected an argument that section 186.22, subdivision (b) was facially unconstitutional due to the absence of a scienter requirement. (Id. at pp. 1313, 1323-1324.) In the context of a vagueness challenge, the panel specifically held, among other things, that "[t]he plain language of the statute reflects the 'specific intent' necessary is 'to promote, further, or assist in any criminal conduct by gang members. . . . ' (§ 186.22, subd. (b).) Such is adequate notice of what conduct is proscribed. As Alberto concedes, the inclusion of a 'specific intent' in the terms of a statute will generally overcome any potential vagueness problem; persons of ordinary intelligence will not have to guess at the applicability of the statute." (In re Alberto R., 235 Cal.App.3d at p. 1323.) We stated: "The requirements a person know of the group's criminal activity and intentionally further the group's illegal conduct limit the Act's application to those gang members who actually engage in criminal activity." (In re Alberto R., at p. 1324, italics added.)
Thus, in In re Alberto R., supra, 235 Cal.App.3d 1309, this court explained that the person must have the specific intent to engage in some fashion in criminal conduct by gang members. This necessarily requires knowledge of gang participation in the criminal conduct. More recently, in People v. Albillar (2010) 51 Cal.4th 47, 64-66 (Albillar), the California Supreme Court rejected the notion that the statute requires the specific intent to promote, etc., a gang-related crime, stating: "There is no . . . requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." (Id. at p. 67.) Albillar rejected as "specious" the claim that the constitutional requirement of personal guilt compels inclusion in the enhancement of a specific intent to aid the gang. The court stated: "The enhancement set forth in section 186.22[, subdivision] (b)(1) does not risk conviction for mere nominal or passive involvement with a gang. Indeed, it does not depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang. . . . [¶] In sum, if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Albillar, at pp. 67-68.)
As for Sturges's due process challenge, the California Supreme Court has upheld the gang enhancement scheme against such a claim, stating, "the STEP Act satisfies the requirements of due process by 'impos[ing] increased criminal penalties only when the criminal conduct is felonious and committed not only "for the benefit of, at the direction of, or in association with" a group that meets the specific statutory conditions of a "criminal street gang," but also with the "specific intent to promote, further, or assist in any criminal conduct by gang members." ([Former] § 186.22, subd. (b)(1).)' [Citation] We do not understand the due process clause to impose requirements of knowledge or specific intent beyond these, and defendant cites nothing to convince us otherwise." (People v. Loeun (1997) 17 Cal.4th 1, 11, quoting People v. Gardeley (1996) 14 Cal.4th 605, 623-624.) B. Sufficiency of the Evidence Supporting the Gang Enhancements
Sturges contends the evidence is insufficient to support imposition of the section 186.22, subdivision (b) gang enhancements on counts 7 through 11, and 13 and 14 relating to the Serrano home invasion and Kettering's robbery and assault. Specifically, he maintains the evidence does not show he committed those offenses with the "specific intent to promote, further, or assist in any criminal conduct by gang members." According to Sturges, Deputy Campos's answers to hypothetical questions was not enough, and though evidence was presented that Sturges committed the offenses with other Perris Locs members, the "mere fact of this association during the crime does not necessarily show the requisite specific intent."
"[A] trial court can impose the [section 186.22, subdivision (b)] enhancement only if the prosecution establishes both of the following elements beyond a reasonable doubt: first, that the defendant committed a felony (a) for the benefit of, (b) at the direction of, or (c) in association with a criminal street gang; and second, that in connection with the felony, the defendant harbored the specific intent to (a) promote, (b) further, or (c) assist in any criminal conduct by gang members." (In re Daniel C., supra, 195 Cal.App.4th at p. 1358.)
Sturges concedes evidence was presented that he was accompanied by other Perris Locs gang members in committing the Serrano and Kettering robberies and assaults. (See People v. Leon (2008) 161 Cal.App.4th 149, 163 (Leon).) There is ample evidence to support the first element, that Sturges committed the felonies in association with a criminal street gang.
We review the sufficiency of the evidence to support enhancement allegations under the same standard we apply to a conviction. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Duran (2002) 97 Cal.App.4th 1448, 1456-1457.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (Albillar, supra, 51 Cal.4th at pp. 59-60.) We review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Id. at p. 60.) We neither reweigh the evidence nor reevaluate a witness's credibility. (Ibid.)
Here, the pertinent inquiry is whether the evidence demonstrates Sturges had the specific intent to aid any criminal activity by gang members. (Albillar, supra, 51 Cal.4th at p. 66; Leon, supra, 161 Cal.App.4th at p. 163; see also People v. Villalobos (2006) 145 Cal.App.4th 310, 322; People v. Romero (2006) 140 Cal.App.4th 15, 20; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332.) When it is demonstrated that a gang member intended to commit the current offense, intended to commit the offense in association with another person, and each were members of his gang, then the specific intent requirement of section 186.22, subdivision (b)(1) has been met. (Albillar, at p. 68; accord, Villalobos, supra, 145 Cal.App.4th at p. 322 ["[c]ommission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime"].)
This court found sufficient evidence to support a gang enhancement in Leon, supra, 161 Cal.App.4th 149, in which the defendant and an accomplice were members of the same gang who stole a car and threatened an eyewitness. The defendant argued there was insufficient evidence that he committed the offenses for the benefit of his gang. Leon relied on People v. Morales (2003) 112 Cal.App.4th 1176 and People v. Romero, supra, 140 Cal.App.4th 15 to reject this argument: "In People v. Morales . . . , the defendant and two fellow gang members committed a robbery. On appeal, the defendant argued that there was insufficient evidence to support a gang sentence enhancement pursuant to section 186.22, subdivision (b)(1). The defendant argued that the evidence showed only that the three men belonged to the same gang. The court rejected this claim, concluding that evidence that a gang member has committed a crime with another person whom he knows to be a fellow gang member will ordinarily be sufficient to meet the disjunctively worded elements of section 186.22, subdivision (b)(1): [¶] . . . [¶] 'If defendant is arguing that there was insufficient evidence of the specific intent element (as opposed to the benefit/direction/association element), we disagree. . . . What is required is the "specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." Here, there was evidence that defendant intended to commit robberies, that he intended to commit them in association with Flores and Moreno, and that he knew that Flores and Moreno were members of his gang. Moreover, as we held in part IV, ante, there was sufficient evidence that defendant intended to aid and abet the robberies Flores and Moreno actually committed. It was fairly inferable that he intended to assist criminal conduct by his fellow gang members.' " (Leon, supra, 161 Cal.App.4th at p. 162, quoting Morales, supra, 112 Cal.App.4th at p. 1198.)
"In People v. Romero[, supra,]140 Cal.App.4th 15 . . . , the court employed similar reasoning in concluding that there was sufficient evidence to support a gang enhancement pursuant to section 186.22, subdivision (b)(1) where the defendant drove fellow gang members to the site of a drive by shooting. The court reasoned: 'There was ample evidence that appellant intended to commit a crime, that he intended to help Moreno commit a crime, and that he knew Moreno was a member of his gang. This evidence creates a reasonable inference that appellant possessed the specific intent to further Moreno's criminal conduct.' " (Leon, supra, 161 Cal.App.4th at pp. 162-163, quoting Romero, supra, 140 Cal.App.4th at p. 20.)
As in Morales, Martinez, and Leon, there is substantial evidence to support the gang enhancements related to the Serrano home invasion because Sturges, an admitted member of the Perris Locs gang, committed the offenses "in association with" Miller, Burleson, Darnell Sturges, and Taylor, also known members of the Perris Locs gang. There is no contention that Sturges did not know his associates were Perris Locs gang members, nor could there be given evidence of their prominent tattoos on their hands and forearms as well as Sturges's use and knowledge of their gang monikers. The evidence showed that during the home invasion, Sturges shouted, "Front Line Crips. Give me everything," allowing the jury to reasonably infer the robbery and assault was committed with the intent to promote, further, or assist in criminal conduct by gang members. (Accord, People v. Mendez (2010) 188 Cal.App.4th 47, 57 [evidence that defendants were documented gang members, accompanied by other members of the same gang, and the defendants or their cohorts announced the gang's name during a carjacking supported reasonable inference that crime was committed with intent to promote, further or assist in criminal conduct by gang members].) While there is no need to prove the crimes aided the gang or were gang-related to establish the specific intent prong (Albillar, supra, 51 Cal.4th at pp. 67, 68), the fact Serrano was considered a "snitch" by Miller and other Perris Locs members gives ample support for the jury to conclude that was the case.
As for the crimes involving Kettering, Sturges was caught on videotape assisting Taylor, another known Perris Locs gang member with a moniker and gang tattoos, in beating and robbing Kettering in Perris Locs territory. Taylor could not have had such tattoos if he were not a Perris Locs gang member. All of this evidence was bolstered by Deputy Campos's testimony that violent crimes committed by two gang members enhances the gang members' individual reputations as well as the reputation of the gang, and that a gang member would be seen as disloyal if he did not participate in such crimes. We conclude that the jury's true findings on the gang enhancements in this case are supported by substantial evidence.
Sturges's reliance on the Ninth Circuit authority of Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 and Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, is unavailing, as those cases have now been repudiated by our Supreme Court in People v. Albillar, supra, 51 Cal.4th at pp. 65-66.)
In Emery v. Clark (9th Cir. 2011) 643 F.3d 1210, 1215, the Ninth Circuit Court of Appeals recognized that in Albillar, the California Supreme Court overruled the Briceno and Garcia interpretations of section 186.22, subdivision (b).
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Nor is Sturges assisted by People v. Ramon (2009) 175 Cal.App.4th 843, which involved the sufficiency of expert testimony based only on speculation. In Ramon, officers stopped the defendant, a conceded gang member, while he was driving a stolen vehicle within his gang's territory with a fellow gang member. (Id. at p. 847.) Inside the vehicle was a loaded, unregistered firearm under the driver's seat. The defendant was charged with receiving a stolen vehicle, carrying a loaded firearm in public for which he was not a registered owner, and corresponding gang enhancements. A gang expert testified that the defendant's crimes would benefit his gang. The expert opined that the defendant and other gang members could conduct crimes with the stolen vehicle and unregistered gun and then dump the items, which would be difficult to trace back to the gang. (Id. at pp. 847-848.) Moreover, both items could be used to spread fear and intimidation within the gang's territory. (Id. at p. 848.) The jury convicted the defendant and found the gang allegations to be true. (Ibid.) The appellate court vacated the gang enhancements, concluding there was insufficient foundation for the expert's opinions: "The People's expert simply informed the jury of how he felt the case should be resolved. This was an improper opinion and could not provide substantial evidence to support the jury's finding. There were no facts from which the expert could discern whether [the defendant and his companion] were acting on their own behalf the night they were arrested or were acting on behalf of [their gang]. While it is possible the two were acting for the benefit of the gang, a mere possibility is nothing more than speculation. Speculation is not substantial evidence." (Id. at p. 851.)
Here, unlike People v. Ramon, supra, 175 Cal.app.4th 843, the evidence shows Sturges took an active role in the beating and robbery of the victims, Serrano, Naufahu and Kettering, with fellow Perris Locs gang members. Deputy Campos did not improperly testify as to Sturges's specific intent in robbing and assaulting the victims and Sturges makes no claim that his testimony was improper. The facts of the offenses, in conjunction with Deputy Campos's testimony, constituted sufficient evidence to support the section 186.22, subdivision (b) enhancements. The law is now settled that "[c]ommission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime." (People v. Villalobos, supra, 145 Cal.App.4th at p. 322; Albillar, supra, 51 Cal.4th at p. 68.) C. Evidence as to Crimes Committed for the Benefit of the Gang
Sturges contends the enhancements applied to counts 7 through 11 are improper because they were not shown to be for the "benefit" of the gang. His only challenge is that the evidence shows all of the participants in the incident, including victims Serrano and Naufahu, were members or affiliated with the Perris Locs and "[i]t cannot be said to be for the 'benefit' of a gang when the gang itself is attacked, or when members or associates of the gang are attacked." He maintains the crimes were done only to advance or satisfy individual or personal vendettas or agendas.
Sturges's contention is flawed because it ignores the plain language of the statute, which requires that the offense be committed for the benefit of a criminal street gang or in association with a criminal street gang. As we have indicated, there is no dispute Sturges committed the Serrano home invasion with other Perris Locs gang members; such conduct satisfies the statutory requirement that the offenses must be committed "in association with any criminal street gang . . . ." (See Albillar, supra, 51 Cal.4th at pp. 61-62; People v. Morales, supra, 112 Cal.App.4th at pp. 1197-1198.) In Albillar, the court concluded the evidence was sufficient to support a finding that sexual assaults committed by three related gang members met the requirements of the first prong of section 186.22, subdivision (b)(1), even though there was no gang graffiti left at the scene and no throwing of gang signs: "Defendants not only actively assisted each other in committing these crimes, but their common gang membership ensured that they could rely on each other's cooperation in committing these crimes and that they would benefit from committing them together." (Id. at pp. 51-53, 61-62.) By committing crimes together, gang members increase their status among those participating in the crimes and among the entire gang. (Id. at p. 61.) D. Active Participation in a Gang Offenses
Sturges contends his count 12 and 15 convictions for violating section 186.22, subdivision (a) must be reversed because, in view of the absence of evidence he committed the Serrano and Kettering offenses for the benefit of the gang, they lack substantial evidence that he directly committed, or aided and abetted gang-related felonious criminal conduct. Sturges maintains "it is insufficient to hold that because [he] and others involved in the incident were gang members, appellant is guilty of the crime of being an active street gang member."
The California Supreme Court resolved this issue in Albillar, supra, 51 Cal.4th 47, when it rejected the contention that the substantive section 186.22, subdivision (a) offense includes "an unwritten requirement that the 'felonious criminal conduct' that is promoted, furthered, or assisted be gang related[.]" (Id. at p. 51.) Albillar explained: "The gravamen of the substantive offense set forth in section 186.22[, subdivision] (a) is active participation in a criminal street gang. . . . [T]he phrase 'actively participates' reflects the Legislature's recognition that criminal liability attaching to membership in a criminal organization must be founded on concepts of personal guilt required by due process: 'a person convicted for active membership in a criminal organization must entertain "guilty knowledge and intent" of the organization's criminal purposes.' [Citation.] Accordingly, the Legislature determined that the elements of the gang offense are (1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. [Citation.] All three elements can be satisfied without proof the felonious criminal conduct promoted, furthered, or assisted was gang related." (Albillar, at pp. 55-56.)
Thus, based on the plain language of the statute, "a violation of section 186.22[, subdivision] (a) is established when a defendant actively participates in a criminal street gang with knowledge that the gang's members engage or have engaged in a pattern of criminal activity, and willfully promotes, furthers, or assists in any felonious criminal conduct by gang members." (Albillar, supra, 51 Cal.4th at pp. 54-55, 59.) Because Sturges's sole contention is that the People did not prove that the underlying offenses were gang-related, we dispose of his challenge to the substantive active participation offense on Albillar's holding alone.
III. Great Bodily Injury Enhancements on Counts 13 and 14
Sturges contends the three-year great bodily injury enhancements imposed on counts 13 and 14, relating to the robbery and assault of Donald Kettering, must be stricken under section 1170.1, subdivision (g). That section provides: "When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm."
Citing People v. Gonzalez (2009) 178 Cal.App.4th 1325, the People concede the enhancement on the count 14 assault was imposed in error under that statute, but maintain it was properly imposed on the count 13 robbery. They reason that the ten-year gang enhancement applies to the count 13 robbery based on that offense qualifying as a violent felony (§ 667.5, subd. (c)(9)), and thus only one great bodily injury enhancement, that under section 12022.7, subdivision (a), applies to count 13. They agree that is not the case for count 14, which only qualifies as a violent felony if a section 12022.7 great bodily injury enhancement has been charged and proven, thus precluding imposition of the second great bodily injury enhancement.
In reply, Sturges concedes the People are correct, and we agree for the reasons given by the People. We accordingly will direct the trial court to strike the section 12022.7, subdivision (a) great bodily injury enhancement imposed on count 14.
IV. Claim of Section 654 Error
Sturges contends the trial court erred by sentencing him to 15 years to life on count 7, the robbery in concert of Serrano, and also sentencing him to a four-year, eight month concurrent sentence on count 8, the robbery of Serrano under section 211. The People concede the sentence on count 8 should have been stayed under section 654.
"Section 654, subdivision (a) provides in part: 'An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.' '[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. . . . If all 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.] Whether offenses are 'indivisible' for these purposes is determined by the 'defendant's intent and objective, not the temporal proximity of his offenses.' [Citation.] 'If [a] defendant harbored "multiple criminal objectives," which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, "even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." ' (Ibid.) The application of section 654, thus, 'turns on the defendant's objective in violating' multiple statutory provisions. [Citation.] Where the commission of one offense is merely ' "a means toward the objective of the commission of the other," ' section 654 prohibits separate punishments for the two offenses." (People v. Wynn (2010) 184 Cal.App.4th 1210, 1214-1215.)
" 'The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial.' [Citations.] '[T]he law gives the trial court broad latitude in making this determination.' " (People v. Wynn, supra, 184 Cal.App.4th at p. 1215.)
We agree execution of Sturges's sentence on the count 8 robbery should have been stayed (see People v. Alford (2010) 180 Cal.App.4th 1463, 1472), and the trial court's failure to do so lacks evidentiary support. The count 7 robbery and count 8 robbery in concert were alleged to have been committed against the same victim, Serrano, who testified Sturges and his companions beat him up and took his cell phone and a $100 bill. As the prosecutor observed in his closing remarks, these same facts formed the basis for both counts, and we conclude both offenses were " 'incident to one objective. . . .' " (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Execution of sentence for the count 8 robbery must be stayed under section 654.
V. Remand for Resentencing Is Not Required; The Court is Directed to Amend the
Abstract of Judgment to Conform to its Oral Pronouncement of Judgment
Sturges asks us to remand the matter for resentencing because the record is too ambiguous and uncertain to ascertain the trial court's discretionary sentencing choices. The People ask for the same relief. They maintain it is unclear whether the court meant to impose consecutive or concurrent sentences on counts 4 (the robbery of Varieur) and 8 (the Serrano robbery); that during the sentencing hearing the court stated it was imposing full, concurrent terms on those counts but the minutes and abstract of judgment show fractional, one-third terms on counts 4 and 8, run consecutively to counts 3 (Thompson robbery) and 6 (Rodriguez robbery) respectively. The People concede the court's oral pronouncement of sentence generally controls over conflicting provisions it its minutes or abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 ["An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize."]; People v. Hong (1998) 64 Cal.App.4th 1071, 1075 [discrepancy between judgment as orally pronounced and as entered in minutes is presumably the result of clerical error].) However, they maintain the court would have been within its discretion to run counts 4 and 8 consecutively to the offenses of count 3 and count 6 because the crimes involved separate threats or acts of violence and were committed at different times and different places. (Cal. Rules of Court, rule 4.425(a)(2) & (3).) For this reason, the People suggest it is "possible" the court changed the concurrent sentences on counts 4 and 8 to consecutive sentences, in which case the court must state its reasons for imposing consecutive sentences.
Again pointing to inconsistency in the oral pronouncement and abstract of judgment, the People further assert it is not clear whether the court intended to impose a correct full term, or an improper fractional term, on the count 14 offense. They note the court did not state the aggregate determinate sentence, rending it impossible to confirm its sentencing choices in view of the discrepancies noted above. Finally, without specification, they argue the abstract of judgment is missing some of the enhancements on "various counts."
Neither Sturges nor the People argue that the sentence — as orally pronounced by the court — is unauthorized, i.e., that it could not be lawfully imposed under any circumstances in the particular case. (People v. Price (2004) 120 Cal.App.4th 224, 243.) We have reviewed the reporter's transcript, and we conclude the court unambiguously intended to impose concurrent full sentences on counts 4, 8 and 13. It said, "With regard to Count 4, I'll fix — In other words, the middle term, three years, and that will be concurrent, and with regard to Count 4, the 12022[, subdivision] (a) enhancement, that's one year concurrent. [¶] . . . [¶] Count 8, that one I'll fix the middle term of four years. That will be concurrent, and the ten-year 186.22 will be concurrent. [¶] . . . [¶] Count 14 will be — make that concurrent. That will be three years on 245[, subdivision] (a). 12022.7, it will be three years on the enhancement, that's concurrent. And 186.22 will be ten years concurrent."
As stated, when there is a discrepancy between the oral pronouncement rendering judgment — as reflected in the reporter's transcript and minute order or abstract of judgment contained in the clerk's transcript — the oral pronouncement controls; courts presume any inconsistency is the result of clerical error and rely on the oral pronouncement contained in the reporter's transcript. (People v. Mitchell, supra, 26 Cal.4th at p. 185; People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Price, supra, 120 Cal.App.4th at p. 242.) Neither party has presented a convincing reason to disregard these principles. We will therefore remand the matter to the trial court to modify the judgment as directed and also render it consistent with its oral pronouncement of judgment.
DISPOSITION
The trial court is directed to modify the judgment to stay the four-year, eight-month concurrent sentence for the count 8 robbery, strike the Penal Code section 12022.7 great bodily injury enhancement on count 14, and otherwise conform the judgment to its oral pronouncement. The court is directed to amend the abstract of judgment accordingly. As so modified, the judgment is affirmed. A certified copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
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O'ROURKE, J.
WE CONCUR:
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McDONALD, Acting P. J.
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AARON, J.