Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. SF095753B
MORRISON, J.
A jury convicted Comdy Vang of first degree murder with a drive-by shooting special circumstance, attempted murder and assault with a firearm, and sustained several firearm enhancements. (Pen. Code, §§ 187, 190.2, subd. (a)(21), 664/187, 245, subd. (a)(2), 190, subd. (d), 12022, subd. (a)(1), 12022.5, subd. (a), 12022.53, subds. (b), (c) & (d); further section references are to the Penal Code.) The trial court sent him to prison for life without parole plus 25 years to life, and he timely appealed.
Apart from two minor modifications, we affirm.
BACKGROUND
On April 2, 2005, defendant fired a gun from a car driven by former codefendant Nou Her, into a car driven by Herseng Vang, killing Vang. Nou Her and Tueka Moua, who was in the back of Her’s car at that time, identified defendant as the shooter.
The knowledge of the participants and the details of events were the subject of differing accounts, but viewing the evidence in the light favorable to the verdict (People v. Barnes (1986) 42 Cal.3d 284, 303-304), a rational jury could piece together the following explanation for the shooting.
Tueka Moua and a group of relatives were at Taft Park, playing basketball, when several cars pulled up and a number of men got out with tire jacks or similar weapons and began chasing people. The attackers bashed in some car windows and stole stereo equipment. Tueka Moua fled and went to a cousin’s house, where he roused his uncle, Nou Her, and explained what had happened. Nou Her, defendant and Tueka Moua drove to Taft Park but found nobody, so they drove to Van Buskirk Park, where Tueka spotted some of the attackers. When the attackers left by car, the trio followed in their car. Nou Her bumped his car into one of the attacker’s cars and then pulled alongside it, whereupon defendant began shooting into the car, ultimately killing Herseng Vang.
The jury deadlocked as to former codefendant Nou and he is not party to this appeal. The jury convicted defendant as indicated above. Further facts will be stated where relevant to issues raised on appeal.
DISCUSSION
I. Accomplice Instructions
Defendant asserts that the court misinstructed the jury about accomplice testimony, specifically, that the court should have instructed the jury that Tueka Moua was an accomplice as a matter of law, but instead the trial court instructed the jury to determine whether or not he was an accomplice, and view his testimony with caution if and only if the jury so found. In the reply brief he withdraws a similar claim pertaining to former codefendant Nou Her.
We reject defendant’s claim that the trial court should have usurped the jury’s factfinding role in this regard. It is well settled that “Whether a person is an accomplice is a question of fact for the jury unless the facts and the inferences to be drawn therefrom are undisputed.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103; see People v. Coffey (1911) 161 Cal. 433, 436.) Although there was evidence from which the jury could find Tueka Moua was an accomplice, the evidence did not compel such a finding and therefore the trial court properly allowed the jury to determine the issue.
As the trial court instructed the jury, for Tueka Moua to be an accomplice he must have shared defendant’s criminal intent: His presence at the scene and evident failure to take steps to stop the violence planned by defendant does not of itself make him an accomplice. (See, e.g., People v. Stankewitz (1990) 51 Cal.3d 72, 90-91; People v. Tewksbury (1976) 15 Cal.3d 953, 960-961.)
There was evidence from which the jury could find Tueka Moua had no idea defendant possessed a gun or would use it, until after defendant began shooting. Both Tueka Moua and Nou Her testified that they did not know defendant had a gun. If the jury believed this evidence, it could rationally find Tueka Moua was not an accomplice.
Defendant summarizes the evidence which could be used to show that Tueka Moua was an accomplice, but this mode of argument is not persuasive, in the face of substantial evidence that he did not know defendant had a gun before the shooting: “The record certainly supports, but does not dictate, the conclusion that [Tueka Moua] acted with ‘“guilty knowledge and intent with regard to the commission of the crime,”’ as is required for accomplice liability.” (People v. Fauber (1992) 2 Cal.4th 792, 834; see People v. Avila (2006) 38 Cal.4th 491, 565 [evidence did not “dictate the conclusion that Rodriguez aided defendant and Spradlin knowing their homicidal intent”].)
II. Accomplice Corroboration
Defendant contends that there was no corroboration of the statements and testimony of Nou Her and Tueka Moua.
As the Attorney General notes, and as we explained in the previous section, neither Nou Her nor Tueka Moua was necessarily an accomplice, given that the jury could rationally conclude that neither knew that defendant had a gun.
However, assuming that they were accomplices, their identification of defendant as the actual shooter is adequately corroborated by other, nonaccomplice, evidence.
“A conviction can be based on an accomplice’s testimony only if other evidence tending to connect the defendant with the commission of the offense corroborates that testimony. (§ 1111.) The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, and it must tend to implicate the defendant by relating to an act that is an element of the crime. The corroborating evidence need not by itself establish every element of the crime, but it must, without aid from the accomplice’s testimony, tend to connect the defendant with the crime.” (People v. McDermott (2002) 28 Cal.4th 946, 985-986.)
“The corroborating evidence is sufficient if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the witness who must be corroborated is telling the truth.” (People v. MacEwing (1955) 45 Cal.2d 218, 224; see People v. Sanders (1995) 11 Cal.4th 475, 535.)
Two witnesses, Thai Her and Fu Her, testified that both defendant and Tueka Moua left with Nou Her, to find Tueka’s relatives, after hearing of the attacks at Taft Park. Kou Vang testified that at Van Buskirk Park he saw defendant and Nou Her running towards Nou Her’s car, while someone else was in the backseat, then saw Nou Her drive past and bump into Herseng’s car; at that point the front seat passenger began firing a gun. Lee Vang, a passenger in Herseng’s car and the victim named in the attempted murder count, felt Herseng’s car rear-ended, saw Nou Her driving his car, saw the front seat passenger firing a gun, and saw a backseat passenger.
Thus, independent evidence placed defendant in the front seat of Nou Her’s car at the time of the shooting, with evidence from which his motive of vengeance could be inferred. That is sufficient independent evidence from which the jury could conclude Tueka Moua and Nou Her were telling the truth.
III. Firearm Enhancement
Defendant contends the trial court should not have imposed sentence on the firearm enhancement. We disagree.
The special circumstance provided by section 190.2, subdivision (a)(21) resulted in a sentence of life without parole (LWOP). That subdivision applies when “The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death.” The jury was instructed to find the special circumstance true if and only if the People proved that defendant,with the intent to kill, intentionally shot the firearm from a moving vehicle, killing the victim outside of the vehicle.
The relevant enhancement is provided by section 12022.53, subdivision (d), part of the Sandy Peters Memorial Act, more generally known as the “10-20-Life” statute, enacted in 1997. (Stats. 1997, ch. 503; see People v. Chiu (2003) 113 Cal.App.4th 1260, 1263.) It resulted in a sentence of 25 years to life consecutive to the LWOP sentence. The relevant subdivision partly provides:
“Notwithstanding any other provision of law, any person who, in the commission of [inter alia, murder], personally and intentionally discharges a firearm and proximately causes . . . death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” (§ 12022.53, subd. (d).)
The jury was instructed that in order to sustain this enhancement, the People had to prove defendant intentionally discharged a firearm, causing the death of another person, not an accomplice.
Thus, defendant’s conduct of shooting from his vehicle resulted in both an LWOP term and a 10-20-Life term. Defendant’s claim is that the 10-20-Life statute itself provides that its penalties do not apply when a longer term of imprisonment is imposed for the same act, and thus the sentence therefor should not have been imposed. He also contends the result violates the proscription on multiple punishment provided by section 654. We disagree with both claims.
At the time of the murder, section 12022.53, subdivision (j), read in part as follows: “When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or a longer term of imprisonment.” Defendant reasons that because shooting from his vehicle resulted in “another provision of law provid[ing] for a greater penalty”—namely, the LWOP sentence for the drive-by shooting special circumstance—his sentence should not have been enhanced by section 12022.53, subdivision (d).
In People v. Shabazz (2006) 38 Cal.4th 55, the California Supreme Court concluded that that version of section 12022.53, subdivision (j) was facially ambiguous:
“When the concluding sentence of section 12022.53(j) is read in isolation, its meaning reasonably is susceptible to alternative interpretations: (1) the phrase ‘unless another provision of law provides for a greater penalty or a longer term of punishment’ might refer to another enhancement provision that requires an additional punishment greater than the punishment specified by the enhancement provisions contained within section 12022.53 . . ., or, [alternatively,] (2) the phrase might refer to any sentencing provision that provides for a sentence greater than that specified by the applicable 12022.53 enhancement, . . .” (38 Cal.4th at p. 67.)
After considering the context and purpose of the statute, the California Supreme Court rejected the latter interpretation, and concluded that “the Legislature intended that the enhancements set forth in section 12022.53 be added to a defendant’s sentence when the underlying offense is punishable by death or by life imprisonment without the possibility of parole.” (Shabazz, supra, 38 Cal.4th at p. 69.)
Although defendant highlights differences in the procedural circumstances of this case, the import of the Shabazz decision cannot be reconciled with his claims. As stated without qualification by a more recent California Supreme Court decision: “[A] section 12022.53 enhancement must be imposed unless the defendant is subject to a different enhancement provision that specifies a longer term.” (People v. Palacios (2007) 41 Cal.4th 720, 726, fn. 4 (Palacios).) A special circumstance is “sui generis—neither a crime, an enhancement, nor a sentencing factor.” (People v. Garcia (1984) 36 Cal.3d 539, 552, overruled on other grounds in People v. Lee (1987) 43 Cal.3d 666, 676.)
We note that in 2006, the relevant part of subdivision (j) was amended to replace “another provision of law” with “another enhancement,” as “declaratory of existing law as set forth by the California Supreme Court in People v. Shabazz (2006) 38 Cal.4th 55, 66-70.” (Stats. 2006, ch. 901, §§ 11.1, 14.1.) Although this version of the statute does not directly apply to defendant’s case, we believe it correctly interprets Shabazz and clarified that a section 12022.53 enhancement is not precluded where a defendant suffers a special circumstance finding.
Defendant separately claims the multiple punishment for his single incident of shooting violates section 654. The California Supreme Court has held that “the sentence enhancement provisions of Penal Code section 12022.53 are not limited by the multiple punishment prohibition of section 654.” (Palacios, supra, 41 Cal.4th at p. 723.) Therefore, we reject his claim.
Defendant asserts that the 10-20-Life enhancement is included within the special circumstance, and therefore not separately punishable under several state and federal provisions. These claims are frivolous because appellate counsel simply ignores the fact that the enhancement requires personal firearm use (§ 12022.53, subd. (d), but the special circumstance does not (see CALCRIM No. 735).
IV. Special Circumstance
Defendant contends that the drive-by theory of murder and drive-by special circumstance have no distinction and therefore the special circumstance violates various federal rights, in large measure because the result did not narrow the category of drive-by murderers who may be subject to the death penalty.
The jury was also tendered theories of premeditated murder and lying-in-wait murder, and defendant was never exposed to the death penalty in this case.
More importantly People v. Rodriguez (1998) 66 Cal.App.4th 157 (Rodriguez), has rejected this claim. Defendant fails to cite Rodriguez, although the Attorney General cited it and it is directly on point.
We relied on Rodriguez in another case in which a defendant was represented by appointed appellate counsel A.M. Weisman. (People v. Vu (Dec. 13, 2005, C046707) [nonpub. opn.].) Weisman’s failure to discuss this relevant authority, with prior knowledge of it and after the Attorney General called it to her attention in this case, is improper appellate advocacy and the argument is frivolous.
V. Parole Fine
Defendant contends, and the Attorney General concedes, that the trial court should not have imposed and then stayed a $200 parole revocation fine. We agree. (§ 1202.45; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1186.) We strike the $200 parole revocation fine.
VI. Custody Credits
Defendant contends, and the Attorney General concedes, that he is entitled to 66 additional days of actual presentence custody credit. We agree. Defendant served 578 actual days in presentence custody.
DISPOSITION
The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a new abstract of judgment consistent with this opinion. In all other respects, the judgment is affirmed.
We concur: BLEASE, Acting P.J., RAYE, J.