Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1091957, Scott T. Steffen, Judge.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Appellant Michael Edward Walker II was convicted after jury trial of two counts of attempted murder, five counts of assault with a firearm, two counts of discharging a firearm at an occupied motor vehicle, one count of brandishing a firearm at a peace officer, one count of forcibly resisting arrest, one count of being an ex-felon in possession of a firearm and one count of evading arrest. (Pen. Code, §§ 664/187; 245, subds. (a)(2) & (b); 246; 417, subd. (c); 69; 12021, subd. (a); Veh. Code, § 2800.2, subd. (a).) A criminal street gang enhancement allegation was found true in connection with each count. (§ 186.22, subd. (b)(1).) Additional offense-related enhancement allegations were found true in connection with various counts. (§§ 12022.5, subd. (a); 12022.53, subds. (b)-(d); 12022.7, subd. (a).) Appellant admitted having suffered one prior strike and two prior serious felony convictions. (§§ 667, subds. (a) & (d); 667.5, subd. (b); 1197.2, subd. (c). He was sentenced to a total determinate term of 57 years plus two consecutive indeterminate terms of 25 years to life imprisonment.
Unless otherwise specified all statutory references are to the Penal Code.
Appellant challenges the sufficiency of the evidence supporting the street gang enhancements. Also, he argues the trial court abused its discretion and infringed his right to due process of law when it refused to bifurcate trial of the gang enhancements. Finally, he contends that separate sentencing for some of the offenses was barred by section 654. None of his arguments is persuasive. We will affirm.
FACTS
Around noon on Mary 10, 2005, Jermaine Russell and a friend were sitting in a car near an apartment complex in Modesto that is known as the Bedrock Apartments. Appellant drove past in a burgundy colored car. Appellant stared at them in a menacing way.
Around 7:00 p.m., Russell was walking to the store when appellant drove by again. Appellant said, “What’s up?” Russell replied, “What’s up,” and continued to walk down the street. Shortly thereafter, appellant approached Russell on foot and asked him where he was from. Russell told him that he was from Fresno. Appellant said, “What’re you doing on my bloc[k], Blood?” Russell said, “This ain’t your block.” Appellant started chasing Russell but Russell eluded him.
A short time later, appellant drove up alongside Russell. Appellant was laughing as he waved and pointed a silver-colored handgun at Russell. Appellant fired two shots at Russell; both shots hit the ground. As Russell was running away, appellant shot him in the back. Russell identified appellant as the shooter in a photographic lineup and identified appellant’s car from other photographs.
Arturo Ramos was walking home when he saw an African-American man in a maroon car fire a big chrome gun several times at another African-American man who was running toward an apartment complex. Ramos tried to hide behind a tree but was shot in the arm. He could not identify the shooter.
Edward Ortiz was standing in his front yard when he heard gunshots and then heard the sound of screeching tires. A car passed by his house. Ortiz saw a man who was either Puerto Rican or African-American stick his left arm out of the driver’s side window and fire two shots. Ortiz subsequently heard two more gunshots.
Christine Ott was stopped at an intersection in her vehicle when she heard a sound that she thought was a car backfiring. Then she saw a large African-American male with either a shaved or bald head in a vehicle. His arm was extended out of the driver’s side window and he was holding a gun. The driver looked similar to appellant.
Joseph Muldrew was stopped at this same intersection. He saw appellant in a maroon car. Appellant’s arm was extended out of the window and he was holding a handgun. Appellant pointed the gun and fired it at another car, which Muldrew described car as being a “dark green Honda or something like that.” Then appellant pointed a dark-colored, large caliber handgun that might have been nickel plated toward Muldrew. Muldrew ducked below the dashboard. Appellant fired a shot in Muldrew’s direction.
Than Ting was driving to a store in a Jeep Cherokee; Seth Sok was in the passenger’s seat. They were stopped at an intersection when Ting saw appellant run the stop sign. As appellant’s car traveled through the intersection, appellant fired a handgun at them multiple times. Ting was hit in his left arm, left shin and right foot. Ting drove about a block and pulled over by a liquor store. Sok ran to get help and Ting remained in the car. Appellant drove by Ting’s vehicle. Appellant shouted, “Die, Motherfucker.”
Muldrew was reporting the shooting to a police officer when he spotted appellant’s car. The police pursued it. Appellant attempted to elude the officers. Numerous police officers chased appellant’s vehicle; most of their patrol vehicles had the lights and sirens activated. At one point, appellant waved a handgun out of the driver’s side window and pointed it back toward the officers. Appellant’s vehicle was eventually rammed by a patrol vehicle and he was forced to stop.
Appellant exited the vehicle and dropped to his knees. Around this time, appellant discarded two handguns, which were retrieved by police officers. The dark colored handgun contained five empty shell casings in it and the chrome colored handgun contained six empty shell casings.
When officers attempted to cuff appellant, he struggled with them. An officer employed a taser on appellant but it was not effective. Appellant shouted profanities at them and yelled, “Bedrock Posse Bitches” and “Bedrock for life, Motherfuckers.” Appellant was immobilized by a wrap device and taken into custody.
Appellant was transported to the hospital. During the trip he verbally abused the accompanying officer. During one outburst appellant mentioned the Bedrock Posse. Muldrew was taken to the hospital where he identified appellant as the shooter.
Appellant was wearing black sweatpants with red stripes when he was arrested. A gray sweatshirt with red cuffs was found in his car. Two cell phones were found in appellant’s car. The display on one of the cell phones read “Bed, space, rock, dollar sign.”
Modesto police detective James Vincent Rokaitis gave expert gang testimony. He testified that the Bedrock Posse is a criminal street gang consisting of more than three verified members. Some Bedrock Posse members “claim Piru or Blood affiliation” and other Bedrock Posse members “claim Nortenos affiliation.” The two groups share common territory. When they work together, “it’s termed the Bedrock Posse.”
The Bedrock Posse claims the area around the Bedrock Apartments as its territory. The Bedrock Posse claims the color red and its common signs or symbols include the word Bedrock, the initials BRP in red and the numbers 1200 and 1204. Some of the primary criminal activities of the Bedrock Posse “include drug dealing, possession of narcotics for sales, crimes of violence, and weapons crimes.”
Rokaitis testified about 11 predicate criminal offenses committed between 1995 and 2005 by Bedrock Posse members; appellant committed two of these predicate offenses. Appellant was convicted of making criminal threats in December 1999 and of possessing cocaine for sale and resisting a police officer in June 2002.
Rokaitis opined that appellant was an active member of the Bedrock Posse on May 10, 2005. In reaching this conclusion, Rokaitis relied on the following facts: During a November 1999 contact with a police officer, appellant admitted that he was a Bedrock Piru. The officer observed that appellant had two gang-related tattoos and he was in the company of another documented Bedrock Posse member. On another day in 1999, appellant admitted to a police officer that he had been a Bedrock Posse member since 1993; appellant was wearing a red shirt, red shoes and a red belt with a buckle in the shape of the letter B. In August 2002, appellant told a prison classification officer that he was a Piru Blood. Appellant has a prior drug conviction and one of the primary activities of the Bedrock Posse is dealing narcotics. Appellant currently has six gang-related tattoos.
Rokaitis also opined that the factual circumstances of the charged offenses are consistent with appellant’s active membership in the Bedrock Posse. In reaching this conclusion, Rokaitis relied on the following facts: Appellant stared at, verbally challenged and then chased Russell, who was a potential rival gang member inside Bedrock Posse territory. When appellant was arrested he referenced Bedrock and he was wearing sweatpants with red stripes. The crimes were committed in a general area that is claimed by the Bedrock Posse as its territory.
Rokaitis opined that the charged offenses were committed to benefit the Bedrock Posse and were committed with the intent to assist, further or promote criminal conduct by Bedrock Posse members. Appellant’s conduct was a way of maintaining Bedrock Posse’s control over the area and of sending a message to residents that Bedrock Posse members will respond with violence to maintain their control. Also, it causes a chilling effect on potential victims or witnesses “of any future crimes caused by this gang.” Appellant’s conduct was “a violent display in a neighborhood and area that’s controlled by the Bedrock Posse.” These crimes demonstrate “what Bedrock Posse gang members are capable of. That they are very violent individuals. That they have no problem shooting at people, being involved in crimes of violence to maintain control of a particular area.” Also, these crimes show that Bedrock Posse members do not have any fear of or respect for the police. This can make police officers fearful and cause them to avoid contact with Bedrock Posse members. The crimes enhanced appellant’s status in the gang.
DISCUSSION
I. The gang enhancements are supported by substantial evidence.
A. The People were not required to prove that appellant committed the crimes with the specific intent to facilitate additional crimes by other gang members.
In relevant part, section 186.22, subdivision (b)(1), provides for a sentence enhancement when a defendant commits a felony “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.…” Relying on the majority opinion in Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), appellant argues that this statutory language required the People to prove that he committed the current offenses with the specific intent to facilitate separate and additional criminal conduct by other Bedrock Posse gang members. As will be explained, the Garcia majority misinterprets section 186.22, subdivision (b)(1).
In Garcia, defendant was convicted of robbery and the jury found true a gang enhancement allegation. As framed by the majority, the issue on appeal “is whether the evidence was sufficient, under applicable federal habeas corpus standards, to support the jury’s finding of the required specific intent: that is, the intent to ‘promote, further, or assist in’ other criminal activity of the gang apart from the robbery of conviction.” (Garcia, supra, 395 F.3d at pp. 1100-1101.) The majority found nothing in the record supporting an inference that Garcia committed the robbery with the specific intent to facilitate other criminal conduct by fellow gang members. (Id. at pp. 1103-1104.) The dissenting judge concluded that section 186.22, subdivision (b)(1), did not require proof that the crime of conviction was committed with the intent to further some other specifically identified additional crime or category of crimes. Furthermore, it could reasonably be inferred that defendant’s criminal conduct would probably facilitate the gang’s control of the area and make it easier to commit crimes in the future. (Id. at pp. 1105-1107.)
As a lower federal court decision, Garcia is not binding on this court. (People v. Hoag (2000) 83 Cal.App.4th 1198, 1205.) Further, the majority opinion in Garcia is not convincing. It misinterprets the California statute which, by it language, requires a showing of specific intent to promote, further, or assist in “any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) The statutory language does not require a showing of a specific intent to promote additional and separate criminal conduct by other gang members. We are not alone in rejecting Garcia. Both People v. Romero (2006) 140 Cal.App.4th 15, 19 (Romero) and People v. Hill (2006) 142 Cal.App.4th 770, 774 (Hill) concluded that Garcia was wrong on this point. Hill cogently explained:
“Garcia, however, misinterprets California law. ‘… We disagree with Garcia’s interpretation of the California statute, and decline to follow it. [Citations.] By its plain language, the statute requires a showing of specific intent to promote, further, or assist in “any criminal conduct by gang members,” rather than other criminal conduct. [Citation.]’ [Citation.] We agree with Romero.
“There is no requirement in section 186.22, subdivision (b), that the defendant’s intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits. To the contrary, the specific intent required by the statute is ‘to promote, further, or assist in any criminal conduct by gang members.’ [Citation.] Therefore, defendant’s own criminal threat qualified as the gang-related criminal activity. No further evidence on this element was necessary.” (Hill, supra, 142 Cal.App.4th at p. 774.)
For the reasons expressed in Hill and Romero, we decline to follow Garcia.
The disagreement between state and federal courts concerning the proper interpretation of section 186.22, subdivision (b)(1), is unresolved. No California state appellate court has accepted Garcia’s interpretation of this statute and the California Supreme Court declined to review Hill. Recently, in Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, a divided panel of the Ninth District Court of Appeals held that it was not bound by Hill and Romero because the California Supreme Court has not specifically addressed this issue and it believes that our High Court would decide the question differently. (Id. at pp. 1079-1083.) The dissenting opinion concluded that state appellate courts have not unreasonably interpreted state law and there is convincing evidence that the California Supreme Court would not disagree with the decisions of the California appellate courts. (Id. at pp. 1084-1089.)
B. The record contains substantial evidence proving that appellant committed the current crimes with the intent to promote, further or assist in criminal conduct by gang members.
We now turn to an assessment of sufficiency of the evidence proving that appellant committed the current offenses with the intent to promote, further or assist in any criminal conduct by gang members.
When reviewing a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment below to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment every fact that a jury reasonably could have deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23.) “This standard applies to a claim of insufficiency of the evidence to support a gang enhancement.” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Rokaitis, the People’s gang expert, opined that all of appellant’s criminal actions were committed to benefit the Bedrock Posse and appellant intended to promote, facilitate or assist criminal conduct by gang members. Rokaitis explained that appellant’s crimes benefitted the Bedrock Posse by generating fear in the area and was a way of protecting the Bedrock Posse’s turf. Residents would be less likely to testify against Bedrock Posse members because appellant’s conduct demonstrated that members of the Bedrock Posse will respond with violence to maintain control over the neighborhood and that they do not fear the police. Furthermore, Rokaitis opined that appellant’s actions could create a sense of fear in police officers and make it less likely that they would interact with Bedrock Posse members. The prosecutor asked Rokaitis if he had “an opinion as to whether or not while [appellant] did the things that we’ve been talking about this afternoon, that he intended to assist, further or promote criminal conduct by gang members?” Rokaitis replied:
“Well, as I’ve said before, I believe that by carrying out crimes of violence, by yelling out the name of your gang, having tattoos visible for any potential witnesses creates a feeling of fear and intimidation in a particular neighborhood.
“And when you have a neighborhood that’s controlled by a particular criminal street gang -- and I’ll refer to Bedrock Posse in -- in that part of town -- where you have a member who’s shooting a gun at a number of different individuals, is being chased by a number of police officers, and -- and makes several statements about his gang, that makes it a situation where other gang members -- other members of the Bedrock Posse criminal street gang can commit crimes in that neighborhood.
“And there’s going to be people down there that can remember the actions of [appellant], and are going to be fearful of standing up in court or acting as a witness or even contacting the police to report any illegal activity that’s being committed by members of that gang.”
Then Rokaitis explained that the current crimes enhanced appellant’s status within the gang:
“Somebody who’s willing to use a firearm, willing to act in an aggressive manner towards people who maybe are perceived as -- as being rivals in their own gang neighborhood. Somebody who’s willing to lead the police on a long chase, who will fight with the police when they’re being taken into custody, will just exclaim the name of that gang without any care or concern who’s around them, I think greatly enhances that person’s … reputation. And in the eyes of maybe younger gang members, they’re a God.”
Rokaitis’s testimony was based on specific facts related to the substantive offenses (e.g., the location where the crimes were committed, appellant’s attire, his verbal challenge to Russell, his resistance to capture and arrest, his repeated references to Bedrock) and not solely on appellant’s status as a gang member. This topic was a proper subject for expert testimony (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1209). An expert may rely on hearsay in forming his or her opinion. (People v. Catlin (2001) 26 Cal.4th 81, 137.) Generally, the testimony of a single witness is sufficient to prove a disputed fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Accordingly, we conclude the record contains substantial evidence supporting the jury’s finding that appellant committed the substantive crimes with the intent to promote, facilitate or assist in criminal conduct by gang members.
II. The bifurcation motion was properly denied.
A. Facts
Appellant orally motioned to bifurcate trial of the prior conviction and gang enhancement allegations. The court agreed to bifurcate trial of the prior convictions allegations. Argument was held on the issue of bifurcating the gang enhancement allegations. Defense counsel argued that there was insufficient evidence to prove that appellant was a gang member or that the substantive offenses were gang related. Therefore, it would be unfairly prejudicial to try the gang enhancements with the substantive offenses. The prosecutor argued that defense counsel was improperly attempting to create a new procedure that does not exist in the law requiring the court to assess the strength of the People’s case before ruling on a bifurcation motion. He contended that appellant had interjected his gang status into the commission of the offenses and that the gang evidence was relevant to establish motive. Furthermore, evidence of the gang’s territory was admissible as evidence proving appellant was the perpetrator. Finally, a limiting instruction would cure any possible prejudice. Relying on People v. Hernandez (2004) 33 Cal.4th 1040 (Hernandez), the court refused to bifurcate trial of the gang enhancement allegations. It reasoned that gang evidence was relevant and admissible in the trial of the substantive offenses to prove motive.
B. The trial court did not abuse its discretion.
Section 1044 gives trial courts the discretion to bifurcate proceedings. (People v. Calderon (1994) 9 Cal.4th 69, 74-75.) In Hernandez, supra, 33 Cal.4th 1040 (Hernandez), our Supreme Court considered whether trial of a gang enhancement allegation generally should be bifurcated from trial of the substantive offense. It concluded that because a “gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense,” there is generally less need for bifurcation of a gang enhancement than for bifurcation of a prior conviction allegation, which relates to the defendant’s status and may have no connection to the charged offense. (Id. at p. 1048.) Evidence of gang membership is often relevant to the charged offense in order to prove motive, identity or other issues pertinent to prove guilt. “To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]” (Id. at pp. 1049-1050.) Bifurcation of a gang allegation may be warranted if the evidence of predicate offenses offered to establish a pattern of gang activity is unduly prejudicial. However, even if some evidence offered to prove the gang enhancement would be inadmissible at trial of the substantive offense alone on the ground that it is unfairly prejudicial, a court may still deny bifurcation. The court’s discretion to deny bifurcation of a gang enhancement is broader than its discretion to admit gang evidence when a gang enhancement is not charged. (Id. at pp. 1049-1050.)
We review the trial court’s ruling on the bifurcation motion for abuse of discretion (Hernandez, supra, 33 Cal.4th at p. 1048), and find none here. Appellant argues that this decision was erroneous because the jury learned of appellant’s prior convictions, his service of a prison term, and his release on parole less than a year before he committed the current offenses. Appellant errs by failing to recognize that his motive for committing the substantive offenses was rooted in his gang affiliation. “Case law holds that where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial. [Citations.]” (People v. Martin (1994) 23 Cal.App.4th 76, 81.) Here, the gang evidence was inextricably intertwined with the substantive charges. We see no reason why the prosecutor should have been precluded from proceeding on the theory that appellant committed the charged offenses for the benefit of the Bedrock Posse and with the intent to facilitate criminal conduct by gang members. The evidence supported this theory. Appellant injected his gang status into the crime. He challenged Russell by asking him where he was from and why he was on appellant’s block. When police attempted to arrest appellant, he shouted out his gang affiliation. He again mentioned it when he was being transported to the arrest site. Some of his gang tattoos were visible during the entire incident.
It is true that evidence of a large number of predicate offenses was admitted to prove a pattern of gang activity and appellant committed two of the predicate offenses. However, none of the testimony about appellant’s personal prior criminal conduct or service of a prison term suggests that appellant previously was involved in a drive-by shooting, an assault with a firearm, evading police or resisting arrest. Moreover, they were not evidence of offenses for which appellant might have escaped punishment. The gang evidence was not so minimally probative and so inflammatory that the jury might have been swayed to convict appellant regardless of his actual guilt. Furthermore, the jury was given a limiting instruction that they were to consider the evidence of gang activity only for the following two purposes: (1) to decide whether appellant acted with the intent, purpose and knowledge that are required to prove the gang enhancement; and (2) to prove that appellant had a motive to commit the substantive crimes.
For all of these reasons, we conclude the trial court “acted within its discretion in denying bifurcation.” (Hernandez, supra, 33 Cal.4th at p. 1051.)
C. Appellant’s rights to due process and a fair trial were not infringed.
Relying on People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), appellant argues that denial of the bifurcation motion infringed his federal and state constitutional right to due process of law by denying him a fair trial. We are not persuaded.
In Albarran, the defendant was convicted of attempted murder, shooting at an inhabited dwelling and attempted kidnapping for carjacking. Gang enhancements connected to the charged offenses were found true. Prior to the trial defendant sought to exclude gang evidence on the ground that it was irrelevant to the substantive charges and inadmissible under Evidence Code section 352. The court denied the motion. After the verdicts were entered, defendant filed a new trial motion asserting that the evidence was insufficient to support the gang allegations and that improper admission of such evidence justified a new trial on all charges. The court granted the new trial motion with respect to the gang allegations but denied it to the underlying charges because it was relevant to the issue of intent. The appellate court reversed. It concluded that the trial court prejudicially erred and infringed defendant’s federal due process right and rendered the trial fundamentally unfair by refusing to grant a new trial on all charges. It determined that the gang evidence was extremely prejudicial, irrelevant to the underlying charges and there was not sufficient evidence that the crimes were gang motivated. (Albarran, supra, 149 Cal.App.4th at pp. 223-232.)
Albarran is legally and factually inopposite. Denial of a bifurcation motion is at issue here, not the partial grant of a new trial motion. We have previously explained that the true findings on gang enhancement allegations are supported by substantial evidence. Also, the evidence clearly showed that the substantive crimes were gang motivated because appellant interjected his gang affiliation into the offenses. Therefore, Albarran does not advance appellant’s argument.
To show a deprivation of federal due process, appellant must demonstrate that the erroneous admission of evidence resulted in an unfair trial. “Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’ [Citation.]” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) We have examined the record in the entirety. It is evident that denial of the refusal to bifurcate trial of the gang enhancements did not result in the erroneous admission of prejudicial evidence or cause the trial to be fundamentally unfair. Therefore, the due process claim fails.
III. No section 654 error occurred.
A. Facts
In relevant part, appellant was sentenced on count 5 (attempted murder of Than Ting) to a consecutive term of eight years plus 25 years to life. He was sentenced on count 6 (discharging a firearm into Ting’s vehicle) to 20 years plus 25 years to life; this sentence was stayed pursuant to section 654. He was sentenced on count 7 (assault with a firearm on Seth Sok) to a concurrent term of six years and eight months. He was sentenced on count 8 (shooting at the green Honda) to a concurrent term of six years and eight months. He was sentenced on count 9 (assault with a firearm on the occupant of the green Honda) to six years and eight months; this sentence was stayed pursuant to section 654. He was sentenced on count 11 (brandishing a firearm at a peace officer) to a consecutive term of two years and four months. He was sentenced on count 12 (forcibly resisting arrest) to a consecutive term of two years and four months. He was sentenced on count 13 (ex-felon in possession of a firearm) to a concurrent term of two years and four months. He was sentenced on count 14 (evading a peace officer) to a concurrent term of two years and four months.
B. Section 654 claims may be raised for the first time on appeal.
Appellant contends the court made multiple errors under section 654. None of these claims were raised in the trial court. However, sentencing errors under section 654 ordinarily are not waived by failing to object below. (People v. Hester (2000) 22 Cal.4th 290, 295.) Yet, “[w]e cannot remand a case to the trial court for the purpose of trying an issue raised for the first time on appeal.” (People v. Sparks (1967) 257 Cal.App.2d 306, 311.) By waiting to raise the issue, appellant does not have the benefit of any specific factual findings directed at the application of section 654. In the absence of evidence to the contrary, we presume the trial court properly performed its official duties. (Evid. Code § 664; Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) Therefore, when a section 654 claim is raised for the first time on appeal, the reviewing court assesses the record to determine if it contains facts that would support a lawful decision to impose separate sentences without violating the proscription against multiple punishment.
C. Section 654 did not require the sentence imposed for count 8 to be stayed.
Appellant argues the sentence imposed for count 8 (shooting at an occupied vehicle) must be stayed because it was the means for committing count 5 (attempted murder of Than Ting) and count 7 (assault with a deadly weapon on Seth Sok). Appellant is factually mistaken.
Count 8 did not arise from appellant’s act of shooting at Ting’s vehicle. Count 8 related to appellant’s act of shooting at the green Honda. Ting and Sok were inside a Jeep Cherokee when appellant shot at them. It was count 6 that related to appellant’s act of shooting into Ting’s vehicle. The term imposed for count 6 properly was stayed pursuant to section 654.
D. Section 654 did not require the sentence imposed for count 13 to be stayed.
Appellant argues the term imposed for count 13 (felon in possession of a firearm) must be stayed because his firearm possession was related to all of the assaults and the attempted murder. We disagree.
Separate punishment for firearm possession is proper “when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1145 (Jones).) The offense is committed the instant the felon has a firearm within his control. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410.) The evidence shows that appellant was armed with a firearm at the onset of his shooting spree. Russell, who was the first victim, testified that appellant drove up alongside him and started shooting at him. It would strain reason to conclude that appellant had not possessed at least one handgun for some period of time immediately prior to his act of firing at Russell. (Id. at p. 1413; Jones, supra, 103 Cal.App.4th at p. 1147.)
E. Section 654 did not prohibit separate sentences for counts 11, 12 and 14.
Finally, appellant argues that imposition of separate sentences for counts 11 (brandishing a weapon at police officers, count 12 (resisting executive officers) and count 14 (evading arrest) was prohibited because the offenses were indivisible and transactionally related. We disagree.
When a defendant harbors multiple criminal objectives that were independent of each other, he or she may be punished for each offense even though they are part of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) Counts 11, 12 and 14 each had a distinct and separate criminal objective. Appellant’s first objective was to avoid capture, which he attempted to accomplish by fleeing from the officers in his vehicle (count 14). His second objective was to scare the police officers who were chasing him, which he attempted to accomplish by brandishing his gun at them (count 11). His final objective was to prevent police officers from taking him into custody, which he attempted to accomplish by physically struggling with them after the car chase ended (count 12). Therefore, section 654 did not prohibit separate sentences for these crimes.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Gomes, J.