Opinion
A127468
10-20-2011
THE PEOPLE, Plaintiff and Respondent, v. ERIC JOVAN ZAMORA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC067485)
Defendant Eric Jovan Zamora (appellant) was convicted by a jury of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) (count 2). As to that count the jury found true allegations that he personally used a firearm (§ 12022.5, subd. (a)), personally inflicted great bodily injury (§ 12022.7, subd. (a)), committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), was at least 16 years old at the time of the offense (Welf. & Inst. Code, § 707, subd. (d)(1)), and was at least 14 years old at the time of the offense (Welf. & Inst. Code, § 707, subd. (d)(2)). The jury also convicted him of active participation in a criminal street gang (§ 186.22, subd. (a)) (count 3) and as to that count, found true allegations that he personally used a firearm (§ 12022.5, subd. (a)(1)), was at least 16 years of age at the time of the offense (Welf. & Inst. Code, § 707, subd. (d)(1)), and was at least 14 years of age at the time of the offense (Welf. & Inst. Code, § 707, subd. (d)(2).) Appellant was 16 years old at the time of the charged incident and tried as an adult. He was sentenced to 20 years in state prison.
All undesignated section references are to the Penal Code.
The jury acquitted appellant of attempted murder (§§ 664, 187, subd. (a)) (count 1).
He contends the testimony of the prosecution's gang expert should have been excluded and insufficient evidence supported the count 3 gang offense and the gang enhancement. He also contends his 20-year prison sentence constitutes cruel and unusual punishment and raises additional claims of sentencing error. We agree with appellant's contention that there were sentencing errors and remand the matter for resentencing. The judgment is otherwise affirmed.
BACKGROUND
In August 2008, Philip Lopez, his girlfriend, Vanessa Gonzales, and their baby came to the Bay Area from their home in Washington State so that Lopez and the baby could meet Gonzales's father's side of the family. Lopez had previously met and been accepted by mother's side of the family. When Lopez and Gonzales arrived in the Bay Area they went to Oakland and stayed with Gonzales's mother and then went to East Palo Alto to meet Gonzales's father.
Several years before, when he was 15, 16 and 17, while living in the State of Washington, Lopez was associated with the Sureno gang, and he has a three-dot Sureno tattoo on his right wrist. Around the time he met Gonzales, he stopped associating with the Sureno gang. At trial, Lopez testified the Nortenos were gang rivals of the Surenos, but he has no problems with Nortenos. He said Surenos wear blue and Nortenos wear red, but he had no problems wearing red. Prior to coming for their visit to the Bay Area, Gonzales was concerned that her family would not accept Lopez because of his tattoo.
Lopez was 23 years old at the time of trial.
When Lopez and Gonzales first arrived at her father's East Palo Alto house, Lopez met her father, her father's girlfriend, appellant, and appellant's girlfriend. Appellant is Gonzales's cousin. When Lopez met appellant they shook hands and their interaction was friendly. Lopez noticed that appellant was wearing red. Appellant gave Gonzales a CD (compact disc) which he said he was excited about and told her to listen to it. Gonzales and appellant shared an interest in music and had sung rap music together. The CD said "EPA disk 14 life records" and "Little E," a reference to appellant's rap nickname. Gonzales was concerned because she knew that "14" stands for Nortenos. Gonzales and Lopez listened to the CD sometime later; she identified appellant's voice on two of its tracks. On one of the CD's tracks the lyrics talk about a Nortenos shooting "Scraps," a term for Surenos, and "leaving baby mommas with no fathers." Gonzales was also concerned by some lyrics on the CD because she did not want appellant rapping about the gang lifestyle.
A day or two later, Lopez saw appellant in front of appellant's East Palo Alto home when Lopez and Gonzales brought their son there so appellant's mother and sister could babysit him. Lopez again noted that appellant was wearing red. According to Gonzales, appellant and Lopez appeared friendly toward each other.
The next time Lopez saw appellant was on August 29, 2008, at a birthday party for Gonzales held at her father's house. About 50 people from her father's side of the family attended. Appellant and his friends were wearing red clothing. Lopez was not wearing blue clothing; however, his clothes did not cover the three-dot tattoo on his wrist.
During the evening, Lopez was looking for a cigarette and went to the end of the driveway where he saw appellant smoking with three of his friends. Lopez approached appellant and asked for a cigarette. Appellant handed Lopez his cigarette, Lopez took a drag from it. Lopez used his hand bearing the tattoo to take the cigarette from appellant. When Lopez sought to hand the cigarette back, appellant said he did not want it, so Lopez threw it on the ground and stepped on it. Lopez described the interaction with appellant as suddenly "awkward."
After Lopez put out the cigarette, appellant stepped in front of him and aggressively said, "I heard you're a scrap. What's up with the three dots?" Lopez responded he had the tattoo from his past, that he was no longer involved in "that" and did not want any problems. Appellant then said, "This is my hood. I'm Norteno. This is my area." Lopez told him he could "have it," and Lopez was here on vacation with his family. Trying to diffuse the problem, Lopez also said "we're supposed to be family." Appellant was "in [Lopez's] face," and he and his friend kept saying, "I'm Norteno. This is my hood. You're in my hood." Appellant then pulled a Glock pistol from his waist, put it to Lopez's chest, and pushed Lopez back while continuing to say this was his area. Lopez kept saying appellant "[could] have it" and tried pushing appellant's hand away.
Appellant put the gun back in his waist area. His friend then said, "Give me the gun; I'll kill him." Lopez decided he could not diffuse the problem, so he turned to walk back toward the party. After taking a few steps, appellant's friend attacked Lopez from behind, striking him in the back of the head with his fist. Lopez turned around to defend himself and punched his assailant in the face. Standing about 10 feet from Lopez, appellant pulled out the gun, pointed it at Lopez's stomach area and fired three shots. Two bullets hit Lopez. Lopez ran back toward the party to get away. He did not see where appellant went.
Lopez was transported by ambulance to the hospital where he was treated for gunshot wounds to his left leg, left groin, and right upper thigh. At the hospital, Lopez told East Palo Alto Police Sergeant David Carson that appellant had shot at him. The next day Carson showed Lopez a photo lineup and Lopez identified appellant as the shooter.
Gang Expert Testimony
Menlo Park Police Officer Edward Soares testified as a prosecution expert in "criminal street gangs in the City of East Palo Alto, and the gang related crimes, and gang subculture." He said the Nuestra Familia is the prison gang that rules over the Nortenos, who are the street soldiers. The Nuestra Familia and Norteno gangs have a military-style leadership structure. The Nortenos are on the streets selling drugs, and engaging in prostitution, and doing violent acts for the prison gang. Norteno gang members have tattoos over their bodies which often include the number 14 and the "huelga" bird. The number 14 may be signified by a single dot tattoo on one arm and four dots tattooed on the other. The color red is associated with the Norteno gang.
Soares said the Surenos are gang rivals of the Nortenos. California is divided north and south at Bakersfield, with the Surenos typically controlling the southern section of the state and the Nortenos controlling the northern section. However, Surenos may exist north of that border and Nortenos may exist south of that border. These two gangs also exist in other states, including Washington. The Mexican Mafia is the prison gang which rules over the Surenos. The most common tattoos associated with the Surenos are the number 13; the letters EMA, which stand for Mexican Mafia, and three dots on one side and one dot on the other.
Soares said that in gang culture respect is associated with fear, and a gang member will gain respect by committing a violent assault or murder against a rival gang member. The more crimes a gang member commits, the more respect and power they gain.
Soares said there is an East Palo Alto Norteno gang and an East Palo Alto Sureno gang. In East Palo Alto the common name for the Norteno gang is "Norte, or Norteno, or East Palo Alto Nortenos." Soares has contacted members of the East Palo Alto Norteno gang more than 200 times. When one of the tattoos commonly associated with Nortenos is accompanied by a tattoo of the letters EPA, signifying East Palo Alto, it shows the gang member is aligning himself with the Norteno gang in East Palo Alto. Nortenos in East Palo Alto commonly wear oversized red T-shirts and usually wear multi-layered shirts. Someone can become a member of the East Palo Alto Norteno gang by committing a crime or violent act or by getting beaten by fellow gang members. East Palo Alto Norteno gang members often use nicknames to hide their true identity.
Soares said that Nortenos and Surenos have a violent rivalry. The term "Scrap" is a term of disrespect used by Nortenos to refer to Surenos. A Norteno will attack a former Sureno because the Norteno will still earn respect and eliminate any possible threat by the former Sureno. Such offenses also benefit the gang as a whole. The offenses these gangs commit against each other include shootings and violent assaults with hands, feet, weapons, and blunt objects. An East Palo Alto Norteno gang member may engage in "checking behavior," meaning attacking a person merely because they are wearing blue clothing.
Soares said there are more than 50 members in the East Palo Alto Norteno gang, which has existed since East Palo Alto was incorporated in the 1980's. The primary activities of the East Palo Alto Norteno gang are attempted murder, assault with a deadly weapon, terrorist threats, burglary, and robbery. Soares gave detailed testimony about specific East Palo Alto Norteno gang members, including their tattoos and the crimes they committed.
Soares said that through rap songs, gang members often brag about their violent crimes against rival gang members and about how they live in East Palo Alto. He said the CD given by appellant to Gonzales bore a small e, signifying appellant's nickname, "Little E." It also bore the number 14, signifying "Norteno" and a crossed out s, signifying disrespect to Surenos.
Soares opined that appellant is a current and active member of the Norteno gang. He based his opinion on the following factors: First, appellant has "EPA" tattooed on his shoulder, and four dots tattooed on one elbow and a single dot tattooed on the other elbow. Soares said he would expect to see these tattoos only on an active East Palo Alto Norteno member. Second, appellant frequently wore either red or black clothing. Third, appellant's asking Lopez about his dots is a common form of identifying a rival gang member or another Norteno from a different area. Fourth, appellant's comments to Lopez such as, "I'm a Norteno. This is Norteno hood. This is my territory," and calling Lopez a "Scrap" are commonly made by Nortenos prior to a gang attack. They are also made by the East Palo Alto Norteno gang. Fifth, the cover of the CD appellant gave Gonzales was evidence of his membership in the East Palo Alto Norteno gang. In addition, the two tracks on which Gonzales identified appellant's voice contained lyrics referencing gang subculture. These references include bragging about Nortenos attacking and killing Scraps, killing Surenos, living like thugs, and using Glocks. Use of the word "blocks" in the lyrics refers to appellant's area of control. The lyrics also include appellant's street name "Little E," and references to narcotics trafficking, Italian gangsters, utilizing police scanners to know where police are, "Norteno pride," wearing red, "gang banging" (committing crimes for the gang), and stopping snitching. The lyric "west of San Jose, all the way to EPA," refers to areas that some Nortenos claim as their territory. Soares opined that, assuming appellant was the person rapping on the two tracks of the CD, the themes of both tracks suggest appellant is a "very active" gang member.
The parties stipulated to the admission of a list of nine East Palo Alto Norteno gang members and the offenses they have each been convicted of and the dates of those convictions.
On cross-examination Soares opined that the stipulated to gang members were members of the Norteno gang of East Palo Alto at the time their offenses were committed. He described the "very structured" organizational framework of the Nuestra Familia, said they have a written constitution and upon release from prison, a person can still be affiliated with the Nuestra Familia. Soares said there is no intermediate gang organization between the Nuestra Familia and the Norteno gang of East Palo Alto. He then said his expertise is "mainly on structures of gangs within San Mateo County and East Palo Alto." He said he knows "a little bit about the Nuestra Familia and how it associates with Norteno," but did not know about the inner workings of Nuestra Familia.
Soares said, in Redwood City, the Nortenos are referred to as Redwood City Nortenos and have respect for their home city. He said the Norteno gang of East Palo Alto has no ruling body or constitution. It has very close ties to the Redwood City Norteno gang; it is not uncommon for Nortenos to cross territories and go into Redwood City or Menlo Park. He explained that Nortenos, regardless of whether they are from East Palo Alto, Redwood City or Menlo Park are under the same "Norteno umbrella." He explained that "Norteno umbrella" means the large Norteno gang throughout the county. Soares opined that the Norteno gang of East Palo Alto and the Redwood City Nortenos are members of the same gang, but from different areas. He said the Nortenos "don't know boundaries"; Nortenos from one city "hang out" with Nortenos from other cities and commit crimes together. The only difference between a Redwood City Norteno, a Menlo Park Norteno, and an East Palo Alto Norteno is where they reside.
Soares explained that in the late 1990's there were numerous different "sets and cli[ques]" of Nortenos, each with their own territory. The Norteno gangs were fighting with each other for narcotics money. Because it "wasn't good for the business," Nuestra Familia ordered an end to the infighting. Now, regardless of what city they come from, Norteno gang members "claim" Norteno. The Sac Street gang, a gang active within East Palo Alto and San Mateo County, is under the umbrella of Norteno. Soares explained that Sac Street or EPA Nortenos are under the same Norteno umbrella, but control different areas.
On redirect examination, Soares clarified that Sac Street is not a separate gang; it is a Norteno street in East Palo Alto.
Soares said if he saw someone with a "XIV" tattooed on their neck and EPA tattooed on their shoulder, that person would fall under the Norteno umbrella and the East Palo Alto Nortenos. He explained that all Nortenos are one gang under the Norteno name. The "Norteno gang of East Palo Alto" is a name that law enforcement uses; no one ever told Soares that they were a member of a gang with that name. Norteno members live in different towns and try to control their own territory but they all work together. Soares clarified, "there's only one gang Norteno. And when I talk about specific locations, its for their territory. So there's not one EPA gang that fights against a Redwood City gang. It's one gang." When asked what the territory is of the Norteno gang, Soares responded, "They're everywhere, all throughout the United States."
The Defense
Marcellino Gonzalez, the grandfather of Gonzales and appellant, testified he was seated next to appellant when he heard what sounded like "popping sounds." A couple of minutes later, Lopez came back from the street lowering his pants, and someone said he was wounded. Marcellino Gonzalez said that he had never seen appellant smoke a cigarette, and that appellant was treated for asthma as a child.
The thrust of the defense closing argument was that appellant was not the shooter and Soares's gang testimony lacked credibility.
DISCUSSION
I. Soares's Testimony Did Not Exceed the Scope of His Expertise
Appellant contends Soares's testimony exceeded the scope of his expertise and should have been excluded.
A. Procedural Background
At the close of the prosecution's case, appellant moved to strike all of Soares's testimony and moved for a judgment of acquittal on the count 2 gang enhancement allegation (§ 1118.1). In particular, appellant argued that because Soares testified on cross-examination that his expertise was limited to San Mateo County, he was not qualified to render an opinion regarding primary gang activity from Bakersfield to Siskiyou County. Appellant also argued that because Soares testified extensively to the activities of the Norteno gang of East Palo Alto, and then later testified it did not exist, the gang enhancement should have been stricken or the motion for judgment of acquittal granted. The court denied the motion. It also denied appellant's request for a unanimity instruction on the nature of the gang for the count 2 gang enhancement and count 3 charge.
Following trial, appellant moved for a new trial with respect to the allegation in both count 3 and the gang enhancement attached to count 2, that he actively participated in a criminal street gang. He argued Soares's testimony should have been stricken and, given its inconsistency and lack of credibility, was insufficient evidence to support the count 3 verdict and gang enhancement. The trial court denied the motion.
B. Analysis
"A person is qualified to testify as an expert if the person has 'special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.' [Citation.] The determination that a witness qualifies as an expert and the decision to admit expert testimony are within the discretion of the trial court and will not be disturbed without a showing of manifest abuse. [Citation.] 'Error regarding a witness's qualifications as an expert will be found only if the evidence shows that the witness " ' "clearly lacks qualification as an expert." ' " [Citation.]' [Citation.]" (People v. Hill (2011) 191 Cal.App.4th 1104, 1118 (Hill).)
"Expert testimony is admissible to establish the existence, composition, culture, habits, and activities of street gangs; a defendant's membership in a gang; gang rivalries; the 'motivation for a particular crime, generally retaliation or intimidation'; and 'whether and how a crime was committed to benefit or promote a gang.' [Citation.]" (Hill, supra, 191 Cal.App.4th at p. 1120.)
Soares testified he had been a police officer for seven years, investigating narcotics and street crimes, especially street gangs. He had a summer deployment with the San Mateo County Gang Task Force and with Project Safe Neighborhood. As part of Project Safe Neighborhood, the police departments of East Palo Alto, Palo Alto, Menlo Park, and the San Mateo County Sheriff's Office combated street crimes, targeting gang members by conducting parole and probation search and seizures; Soares worked strictly in East Palo Alto. As part of the gang task force, he regularly contacted gang members and investigated gang-related crimes. In 2006, he was assigned to the Federal Bureau of Investigation and deputized as a United States Marshal to investigate street crimes, including street gangs. He worked on cases involving an East Palo Alto police officer who was shot and killed by a gang member, and an African-American gang based in East Palo Alto. In 2001, Soares attended the California Police Officers Safety Training, which included eight to ten hours of generalized training on street gangs. As part of his field training program with the East Palo Alto Police Department, he learned about the current trends of specific gangs within that city. Soares took a course on California gangs, including Nortenos, Surenos, and biker gangs. In 2006, he took a larger scale class on gang-related narcotics trafficking from Mexico to California. He has also taken a class on gang investigation, including Nortenos and Surenos and a class on gang prevention. He has attended about 300 hours of training on gangs. Soares taught a class on gang investigation and a class on street gang enforcement and prosecution, including the Nortenos and Surenos gangs in East Palo Alto, and has attended gang-related meetings with various police agencies in San Mateo County, sharing current trends on local gangs. As a police officer he has contacted more than 200 gang members, including Nortenos and Surenos. In East Palo Alto and Menlo Park, he is the primary person who investigates and gives opinions on gangs. On 15 occasions he has qualified as an expert witness on criminal street gangs in San Mateo County. He is familiar with the Hispanic street gangs in East Palo Alto, particularly the Surenos and Nortenos.
Appellant argues, while Soares "may have been qualified to testify about a local gang whose name was created by law enforcement," he was not qualified to offer opinions "that all Nortenos are one gang, that Nortenos are soldiers, what their primary activities are or what their structure is, or any other information that was simply disgorged hearsay,[] intended to satisfy the elements of section 186.22, subdivision (a) or (b)." Appellant also argues Soares was not qualified to testify that asking Lopez about his three dot tattoo was a form of "checking," connected with Nortenos, or to testify that appellant's rap lyrics' references to "the Norte Side" and "northern ghettos" connected appellant to the Norteno gang. He further argues Soares's testimony connecting appellant's four-dot tattoo and his red clothing to the Nortenos exceeded the scope of his expertise.
Appellant's reference to "disgorged hearsay" is unsupported by any analysis or citation of authority. Thus, we treat any such separate claim of error as waived. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 9:21, p. 9-6, and cases cited therein.)
Although appellant attacks numerous individual statements, we understand his claim of error to be that all of Soares' testimony should have been stricken because it exceeded the scope of his expertise.
Appellant waited until Soares was excused as a witness to object to and move to strike Soares' testimony on the ground that it exceeded the scope of his qualifications. Appellant's failure to interpose a contemporaneous objection to Soares' testimony was a proper ground for the court's subsequent denial of his motion to strike. (Evid. Code, § 353, subd. (a); see People v. Pollock (2004) 32 Cal.4th 1153, 1181.) In any event, we review the claim on its merits.
The thrust of appellant's argument is that because Soares testified his main area of expertise was East Palo Alto street gangs, he was unqualified to testify regarding Nortenos in general. " '[A] person may be qualified as an expert on one subject and yet unqualified to render an opinion on matters beyond the scope of that subject. [Citations.]' [Citation.]" (Hill, supra, 191 Cal.App.4th at p. 1120.)
Appellant relies, by analogy, on People v. Chakos (2007) 158 Cal.App.4th 357, 361-362, 369 (Chakos). In that case, where an arresting officer had only a layperson's knowledge of lawful possession of marijuana under the Compassionate Use Act, the court held he was unqualified to render an expert opinion in a prosecution of possession of marijuana for sale where the defendant had a doctor's prescription for lawful marijuana use. (Chakos, supra, 158 Cal.App.4th at pp. 363, 368.) Chakos is factually distinguishable and, therefore, inapposite.
We conclude that Soares's testimony did not exceed the scope of his expertise. His extensive training and experience regarding gangs did not focus solely on East Palo Alto gangs. In 2001, he attended a training session on street gangs. He took a course on California gangs which included Nortenos and Surenos. In 2006, he took a class on gang-related narcotics trafficking from Mexico to California. He has also taken a class on gang investigation, which included Nortenos and Surenos. Finally, he has contacted more than 200 gang members, including Nortenos and Surenos. This training and experience in gangs including Nortenos and Surenos gangs within and outside East Palo Alto, demonstrated the special knowledge, skill, experience and training sufficient to qualify Soares as an expert on the existence, composition, culture, habits, and activities of Nortenos and Surenos gangs, particularly those within East Palo Alto. The trial court could reasonably conclude that Soares's expertise rendered him qualified to testify to the challenged opinions. No abuse of discretion is demonstrated.
II. Substantial Evidence Supports the Gang Enhancement and the Active Participation in a Gang Conviction
Appellant next challenges the sufficiency of the evidence to support the jury's findings on the count 2 gang enhancement (§ 186.22, subd. (b)(1)), and count 3 conviction of active participation in a criminal street gang (§ 186.22, subd. (a)).
"In determining whether the evidence is sufficient to support a conviction or an enhancement, 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citations.]" (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.) In doing so, we " 'neither reweigh[] [the] evidence nor reevaluate[] a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 60.)
The elements of the substantive offense of active participation in a criminal street gang are: " 'actively participat[ing] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity' and 'willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.' " (§ 186.22, subd. (a); People v. Robles (2000) 23 Cal.4th 1106, 1115 (Robles).) To support the gang enhancement, the prosecutor was required to prove that appellant's assault with a firearm against the victim was "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).)
For purposes of section 186.22, subdivisions (a) and (b), a " 'criminal street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in [the statute], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) " '[P]attern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, . . . or conviction of two or more [statutorily enumerated] offenses" within the statutorily defined period. (§ 186.22, subd. (e); People v. Gardeley (1996) 14 Cal.4th 605, 610.)
Appellant argues that the prosecution failed to establish that "Nortenos" or the "Norteno Gang of East Palo Alto" is an actual criminal street gang, and failed to establish the relationship between the larger Nortenos and the smaller "Norteno Gang of East Palo Alto."
In People v. Ortega (2006) 145 Cal.App.4th 1344, the defendant, who had been convicted of murder, contended there was insufficient evidence of the existence of a criminal street gang because the term Norteno "is merely the geographical identity of a number of local gangs with similar characteristics, but is not itself an entity," and the prosecution was required to prove which subset was involved. (Id. at p. 1355.) The gang expert in Ortega testified there were thousands of Norteno gang members in the Sacramento area, and 20 to 25 subsets of Nortenos, but no evidence was presented that the goals and activities of a particular subset were not shared by the others. (Id. at pp. 1356-1357.) The Ortega court concluded: "There was sufficient evidence that Norteno was a criminal street gang, that the murder was related to activity of that gang, and defendant actively participated in that gang. There is no further requirement that the prosecution prove which particular subset was involved here. . . . In light of the nature of gang structure and the apparent willingness of members to work with other gangs to commit crimes, requiring the prosecution to prove the specific subset of a larger gang in which a defendant operated would be an impossible, and ultimately meaningless task." (Id. at p. 1357.)
Similarly, in In re Jose P. (2003) 106 Cal.App.4th 458, 465 (Jose P.) the defendant argued there was insufficient evidence to establish his association with any particular gang. The gang expert in Jose P. testified the Norteno gang was an ongoing association of about 600 persons, identified by the color red and the number 14, and had as one of its primary activities the commission of the offenses listed in section 186.22. (Jose P., supra, 106 Cal.App.4th at p. 467.) The expert testified about robbery and firearms offenses committed by Norteno gang members from different subsets. The Jose P. court concluded this was sufficient evidence to establish that the Norteno gang was a criminal street gang and rejected the defendant's assertion that "the evidence of gang activity must be specific to a particular local street gang, not to the larger Norteno organization." (Ibid.)
Appellant relies primarily on People v. Williams (2008) 167 Cal.App.4th 983 (Williams). In that case, the defendant was convicted of murder and active participation in a criminal street gang. (Id. at p. 985.) He challenged the sufficiency of the evidence to support the jury's finding on the gang activity special circumstance and the active participation conviction. (Id. at p. 986.) He argued that the group relevant to the court's determination was the Small Town Peckerwoods, the group to which he belonged; other groups calling themselves Peckerwoods or some overall Peckerwood gang were not relevant. (Id. at p. 987.) He also argued "there was insufficient evidence of a connection between members of the Small Town Peckerwoods and anyone else." (Ibid, fn. omitted.)
The gang expert in Williams testified that the "Peckerwoods are a criminal street gang, as defined by the Penal Code, and that smaller groups, such as the Small Town Peckerwoods, are all factions of the Peckerwood organization." (Williams, supra, 167 Cal.App.4th at p. 988.) He also testified that "Peckerwood groups share a White pride or White supremacist ideology, and there is a hierarchy, with 'shot callers' who answer to a higher authority inside the prison system." (Ibid.) He also testified that "Peckerwoods are not typically organized like other criminal street gangs, however: for the most part, they have no constitution, and are a looser organization with a less well-defined rank structure. Peckerwood groups get together more for bragging than for strategizing, and one group of Peckerwoods will not necessarily know what another group is doing." (Ibid.)
The Williams court recognized: "Evidence of gang activity and culture need not necessarily be specific to a particular local street gang as opposed to the larger organization. [Citations.]" (Williams, supra, 167 Cal.App.4th at p. 987.) But, it determined that "having a similar name" is not alone "sufficient to permit the status or deeds of the larger group to be ascribed to the smaller group." (Ibid.) The court concluded: "In our view, something more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang. Instead, some sort of collaborative activities or collective organizational structure must be inferable from the evidence, so that the various groups reasonably can be viewed as parts of the same overall organization. There was no such showing here. [The gang expert's] general references to 'shot callers' answering to a higher authority within the prison system were insufficient, absent any testimony that the group calling themselves the Small Town Peckerwoods contained such a person, or that such a person was a liaison between, or authority figure within, both groups." (Id. at p. 988.)
Here, Soares testified that there is a Norteno gang, which exists at least in California and the United States. The number 14 and the color red are associated with the Norteno gang. All Nortenos are under the same "Norteno umbrella," regardless of whether they come from East Palo Alto, Redwood City, or Menlo Park. In East Palo Alto, the Norteno gang is commonly referred to as "Norte, or Norteno, or East Palo Alto Nortenos." Unlike in Williams, where there was no collaborative activity between the larger Peckerwood organization and the smaller Peckerwood group, Soares explained that Nortenos from one city "hang out" and commit crimes with Nortenos from other cities. Moreover, as in Ortega, no evidence was presented that the goals and activities of Nortenos of a particular city or "territory" within San Mateo County were not shared by others.
Appellant also asserts that Soares's testimony that Nortenos is an actual street gang was conclusory. He relies on In re Jose T. (1991) 230 Cal.App.3d 1455, 1462 for the proposition that, "In order for a criminal street gang sentence enhancement to be found true, there must be substantial evidence to support a finding of the existence of a 'criminal street gang' whose members engage in a 'pattern of criminal gang activity.' (In re Lincoln J. (1990) 223 Cal.App.3d 322, 327; In re Leland D. (1990) 223 Cal.App.3d 251, 260.) Conclusional testimony that gang members have previously engaged in the enumerated offenses, based on nonspecific hearsay and arrest information which does not specify exactly who, when, where and under what circumstances gang crimes were committed, does not constitute substantial evidence. (In re Leland D., supra, [223 Cal.App.3d] at p. 259.)" However, here, Soares gave specific examples of individuals who identified as Nortenos that he had spoken to about gang subculture in San Mateo County and East Palo Alto. In addition, the parties stipulated to the admission of a summary of the offenses and convictions dates of nine specified members of the East Palo Alto Norteno gang.
In reliance on Robles, supra, 23 Cal.4th 1106, appellant also argues that there was insufficient evidence to establish that he actively participated in a criminal street gang or specifically intended to promote, further, or assist in any criminal conduct by gang members. In particular, he argues that the prosecution produced no law enforcement documentation of his gang membership, he did not admit to gang membership and the rap lyrics introduced referred to generic Nortenos, not the "Norteno Gang of East Palo Alto."
In Robles, the prosecution presented evidence that the defendant was a member of a criminal street gang, La Mirada Locos. But the prosecution presented no evidence of the defendant's " 'knowledge that its members engage in or have engaged in a pattern of criminal gang activity' and 'willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.' (§ 186.22(a).)" (Robles, supra, 23 Cal.4th at p. 1115.) Thus, the Supreme Court concluded the prosecution failed to establish that the defendant was " 'an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22.' " (Ibid.) Robles is factually distinguishable.
As we noted previously there was sufficient evidence to establish that the Norteno gang was a criminal street gang and that various Norteno gang subsets existed in San Mateo County, including East Palo Alto, Redwood City, and Menlo Park. Soares based his opinion regarding appellant's membership in the Norteno gang on various factors, including, appellant's tattoos, clothing, comments to and questions of Lopez, and the lyrics on the CD appellant gave Gonzales. According to Soares, the lyrics contained references to Nortenos attacking and killing Surenos, narcotics trafficking, committing crimes for the gang, using guns and utilizing police scanners to know where police are. This evidence is sufficient to establish appellant had knowledge that Norteno gang members engage in or have engaged in a pattern of criminal gang activity and willfully promoted, furthered, or assisted in any felonious criminal conduct by members of that gang. (§186.22.)
III. Appellant's Sentence Does Not Constitute Cruel and Unusual Punishment
Appellant contends that his 20-year sentence "violates the precepts" in Graham v. Florida (2010) _____ U.S. _____ (Graham) and constitutes cruel and unusual punishment under the federal and state Constitutions and because he was only 16 years old at the time of the shooting and had no prior criminal record. He also argues that, to the extent the claim was waived because it was not raised below, defense counsel rendered ineffective assistance of counsel. Although appellant has waived the claim by failing to raise it in the trial court (see People v. Burgener (2003) 29 Cal.4th 833, 886887; People v. Pecci (1999) 72 Cal.App.4th 1500, 1503), we address the claim on the merits.
At the sentencing hearing, defense counsel requested that the court strike the 10-year gang enhancement due to appellant's young age, respectful attitude, and absence of recent gang activity. The court sentenced appellant to 20 years in state prison as follows: It imposed a three-year midterm on the count 2 assault with a firearm plus a consecutive four-year firearm enhancement (§ 12022.5, subd. (a)), a consecutive three-year great bodily injury enhancement (§ 12022.7, subd. (a)), and a consecutive 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)). It also imposed a concurrent two-year midterm on the count 3 active participation in a criminal street gang and stayed the attached four-year firearm enhancement pursuant to section 654.
A. Graham
In Graham, the 16 year old defendant pled guilty to armed robbery with assault or battery and attempted armed robbery and was granted probation. (Graham, supra, _____ U.S. at p. _____ .) Less than six months later, he participated in a home invasion robbery in which the victim was held at gunpoint. The trial court sentenced him to life without the possibility of parole (LWOP). (_____ U.S. at p. _____ [Id. at p. 2020].) The United States Supreme Court reversed, holding, "for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole. This clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment. Because '[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,' those who were below that age when the offense was committed may not be sentenced to life without parole for a nonhomicide crime. [Citation.]" (Graham, supra, 130 S.Ct. at p. 2030.) The court also stated: "A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society." (Ibid.)
Recently, Graham's reasoning was applied in People v. Mendez (2010) 188 Cal.App.4th 47, 62-68, where a 16-year-old's 84-years-to-life sentence for nonhomicide offenses was considered tantamount to an LWOP term and found to violate the Eighth Amendment.
Appellant acknowledges that this case is distinguishable from Graham because he did not receive an LWOP or LWOP-equivalent sentence. But he argues that the principles in Graham compel the conclusion that "something less" than 20 years should have been imposed here. He argues that his 20-year sentence "allows him no meaningful opportunity for rehabilitation given the realities of prison life. Appellant's youth means he is unlikely to have the tools to protect himself or recognize rehabilitative opportunities that might be available. By imposing a 20-year sentence, the State here has practically guaranteed appellant will not be fit to reenter society once he has served his prison ti[m]e." Appellant's argument is speculative. Based on a 20-year sentence term, he will be less than 40 years old upon his release from prison. Graham, Nuñez and Mendez are not dispositive here because appellant was neither sentenced to LWOP or its functional equivalent.
B. Proportionality Under the California and the Federal Constitutions
Under the California Constitution, a sentence is cruel and unusual if it is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) A three-part test has been established to determine whether a penalty offends the prohibition against cruel and unusual punishment. " ' "First, courts examine the nature of the offense and the offender, 'with particular regard to the degree of danger both present to society.' Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. [Citations.] In undertaking this three-part analysis, we consider the 'totality of the circumstances' surrounding the commission of the offense. [Citations.]" [Citation.]' [Citations.]" (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1389 (Rhodes).)
The prohibition against cruel and unusual punishment under the federal Constitution is applicable in noncapital cases only in exceedingly rare or extreme cases involving sentences that are grossly disproportionate to the offense, described as a " 'narrow proportionality principle.' " (Ewing v. California (2003) 538 U.S. 11, 20, 22.)
Appellant bears the burden of establishing his punishment is unconstitutional. (People v. King (1993) 16 Cal.App.4th 567, 572.) The issue " 'is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.' [Citations.]" (Rhodes, supra, 126 Cal.App.4th at p. 1390.)
Appellant, an active gang member, brought a loaded gun to a family party. He first held the gun to family member Lopez's chest and then, from a distance of about 10 feet fired three shots at Lopez, striking him twice and causing him great bodily injury. The probation report noted that, in 2007, appellant was declared a ward of the juvenile court after being found in possession of a set of brass knuckles at school, and he was on probation at the time of the shooting. Although appellant was 16 years old at the time of the shooting and did not act alone, the totality of the circumstances does not suggest that, under the Eighth Amendment, his 20-year sentence was grossly disproportionate to the offenses committed. In addition, appellant's sentence neither shocks the conscience nor offends fundamental notions of human dignity. Thus, it does not violate the California Constitution.
In light of our conclusion that appellant's cruel and unusual punishment claim lacks merit, he has failed to establish prejudice resulting from defense counsel's failure to raise the issue below. Thus, his ineffective assistance of counsel fails. (See Strickland v. Washington (1984) 466 U.S. 668, 697 [no reversal for ineffectiveness absent demonstrated prejudice]; accord People v. Anderson (2001) 25 Cal.4th 543, 569.)
IV. Section 654
Appellant next asserts that under section 654 he could not be punished for both assaulting Lopez with a firearm and active participation in a criminal street gang because both offenses arose from the same act and incident, and thus, his 2-year concurrent sentence for active participation in a criminal street gang should be stayed.
The trial court calculated appellant's 20-year state prison sentence as follows:
Count 2 (assault with a firearm): 3 years plus a consecutive 3 years for the great bodily injury enhancement (§ 12022.7, subd. (a)), plus a consecutive 4 years for the personal gun use enhancement (§ 12022.5, subd. (a)), plus a consecutive 10 years for the criminal street gang enhancement (§ 186.22, subd. (b)(1).)
Count 3 (active participation): 2 years to be served concurrently.
Section 654 provides, in part: "(a) 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."
"Section 654 is intended to ensure that punishment is commensurate with a defendant's criminal culpability. (People v. Perez (1979) 23 Cal.3d 545, 551, accord, People v. Latimer (1993) 5 Cal.4th 1203, 1211.) It expressly prohibits multiple sentences where a single act violates more than one statute. For example, a defendant may be guilty of both arson and attempted murder for throwing gasoline into an inhabited room and lighting it, but the single act may be punished only once. (See, e.g., Neal v. State of California (1960) 55 Cal.2d 11, 19.) [¶] Section 654 also prohibits multiple sentences where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct engaged in with a single intent and objective. (Neal v. State of California, supra, 15 Cal.2d at p. 19.) 'If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' (Ibid.) Thus, in legal effect, different acts that violate different statutes merge under the perpetrator's single intent and objective and are treated as if they were a single act that violates more than one statute. [¶] If, on the other hand, in committing various criminal acts, the perpetrator acted with multiple criminal objectives that were independent of and not merely incidental to each other, then he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
There is a split of authority among the Courts of Appeal regarding the proper application of section 654 in the context of sentencing for the offense of active participation in a criminal street gang (§186.22, subd. (a)) and one or more other felonies committed within the same time-frame. The People rely on the line of cases beginning with People v. Herrera (1999) 70 Cal.App.4th 1456 (Herrera), upholding multiple punishment for active gang participation and for the underlying felony. In Herrera, the defendant was charged with a course of criminal conduct involving two gang-related, drive-by shootings in which two people were injured. He was convicted of numerous crimes including two counts of attempted murder and one count of active participation in a criminal street gang. (Id. at pp. 1461, 1467.) Herrera held that for purposes of section 654, the defendant's conviction for gang participation was divisible from his two attempted murder convictions because the gang participation offense required "a separate intent and objective from the underlying felony committed on behalf of the gang." (Herrera, at p. 1468.)
This issue is currently pending before the California Supreme Court in People v. Mesa (2010) 186 Cal.App.4th 773, review granted October 27, 2010, S185688 and People v. Duarte (2010) 190 Cal.App.4th 82, review granted February 24, 2011, S189174.) The Supreme Court in the case summary framed the issue as follows: "Does Penal Code section 654 bar the imposition of separate sentences for the offense of active participation in a criminal street gang in violation of Penal Code section 186.22, subdivision (a), and for the crimes used to prove one element of that offense-that the defendant ha[s] promoted, furthered, and assisted felonious criminal conduct by members of the gang?"
Appellant relies on another line of cases, exemplified by People v. Sanchez (2009) 179 Cal.App.4th 1297 (Sanchez) that concluded section 654 bars such multiple punishment. In Sanchez the defendant and an accomplice robbed a pizza restaurant. (Sanchez, at p. 1302.) The defendant was convicted of two robberies and active participation in a criminal street gang. In concluding that section 654 barred his punishment for both crimes the court stated: "the underlying robberies were the act that transformed mere gang membership-which, by itself, is not a crime-into the crime of gang participation. Accordingly, it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing the robberies. Gang participation merely requires that the defendant 'willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of that gang . . . .' [Citation.] It does not require that the defendant participated in the underlying felony with the intent to benefit the gang. [Citations.]" (Sanchez, at p. 1315.)
Unlike the instant case, Herrera, supra, 70 Cal.App.4th 1456, and Sanchez, supra, 179 Cal.App.4th 1297, each involved multiple offenses which arose out of a series of acts by the defendant. Thus, the appellate courts in those cases analyzed whether the defendant committed multiple offenses with the same intent and objective. The factual scenario involved in this case compels a different analysis.
Here, after making gang-related comments to Lopez, appellant pulled out a gun, put it to Lopez's chest, pushed Lopez and then put the gun back in his waist. Appellant's friend then asked for the gun and offered to kill Lopez. After Lopez turned and began to walk away, appellant's friend struck Lopez in the head from behind. Lopez turned around to defend himself, punching appellant's friend in the face. Appellant then pulled out his gun, pointed it at Lopez and rapidly fired three successive shots, two of which struck Lopez.
Appellant was charged, inter alia, with: (1) attempted murder involving great bodily injury and personal firearm use and committed for the benefit of a gang; (2) a single count of assault with a firearm involving personal firearm use and great bodily injury and committed for the benefit of a gang and (3) active participation in a gang involving personal firearm use and great bodily injury. He was acquitted of attempted murder and convicted of the assault with a firearm and gang participation offenses, and the enhancement allegations were found true.
Although appellant committed multiple acts of assault with a firearm-pulling out the gun and holding it to Lopez's chest and subsequently pulling out the gun and firing three shots at him, the prosecution filed only one charge of assault with a firearm, with an allegation that it involved great bodily injury.
In closing argument, the prosecutor stated, "[Appellant's] also charged with assault with a firearm for the same act shooting Phillip Lopez." The prosecutor's closing argument statement clearly indicated his election to base the assault with a firearm charge on defendant's act of shooting at Lopez. (See People v. Melhado (1998) 60 Cal.App.4th 1529, 1539 [during closing argument prosecutor may elect which specific criminal act pertained to charged offense].)
In Neal, the defendant threw gasoline into the bedroom of the two victims and ignited it. (Neal, supra, 55 Cal.2d at p. 18.) The defendant was convicted of two counts of attempted murder and one count of arson. The Supreme Court stated, " 'If only a single act is charged as the basis of the multiple convictions, only one conviction can be affirmed, notwithstanding that the offenses are not necessarily included offenses. It is the singleness of the act and not the offense that is determinative.' Thus the act of placing a bomb into an automobile to kill the owner may form the basis for a conviction of attempted murder, or assault with intent to kill, or malicious use of explosives. Insofar as only a single act is charged as the basis for the conviction, however, the defendant can be punished only once." (Id. at p. 19.) The Supreme Court also stated, "Few if any crimes, however, are the result of a single physical act. 'Section 654 has been applied not only where there was but one "act" in the ordinary sense . . . but also where a course of conduct violated more than one statue and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.' [Citation.]" (Ibid.)
Here, although appellant argues he was charged with several felonies based on "one course of conduct," he also argues that the attempted murder and assault with a firearm charges were based on a "single act of shooting." The Attorney General does not suggest that appellant engaged in a course of conduct. Instead, she argues that multiple punishment was proper because appellant harbored two separate intents in assaulting Lopez with a firearm: the intent to commit the assault, and the intent to actively participate in the gang.
The factual scenario presented here compels the conclusion that appellant's shooting at Lopez should be viewed as a single, continuous act. Consequently, the general rule, recognized by Neal, applies: "Insofar as only a single act is charged as the basis for the conviction . . ., the defendant can be punished only once." (Neal, supra, 55 Cal.2d at p. 19.) Therefore, section 654 precluded separate punishment for appellant's convictions of assault with a firearm and active participation in a criminal street gang. The sentence imposed for the latter offense, charged as count 3, must be stayed.
V. Appellant's Sentence Violates Section 1170.1, Subdivision (f)
Finally, appellant contends, and the People agree, that the trial court's imposition of both the four-year term for the firearm use enhancement (§ 12022.5, subd. (a)), and the 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)(C)) violated section 1170.1, subdivision (f), which provides: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or firearm 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 the infliction of great bodily injury." The parties agree appellant's sentence must be remanded for resentencing.
In People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez), our Supreme Court held that when a defendant is convicted of a violent felony within the meaning of section 667.5, subdivision (c)(8), based on the defendant's use of a firearm under section 12022.5, a sentencing court's imposition of both the section 12022.5 enhancement and the section 186.22, subdivision (b)(1)(C) enhancement violates section 1170.1, subdivision (f). (Rodriguez, supra, 47 Cal.4th at pp. 508-509.) Rodriguez concluded that the proper remedy was not to strike the 10-year gun use enhancement, but to reverse the judgment and remand the matter for resentencing. (Id. at p. 509.) The court stated, "Remand will give the trial court an opportunity to restructure its sentencing choices in light of our conclusion that the sentence imposed here violated section 1170.1's subdivision (f)." (Ibid.)
Here, pursuant to Rodriguez, the court's imposition of both the four-year firearm enhancement (12022.5, subd. (a)), and the 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)) violated section 1170.1, subdivision (f), and only the greatest of those enhancements may stand. The proper remedy is to reverse the trial court's sentence and remand the matter to allow the court to restructure the sentence so as to not violate section 1170.1, subdivision (f). (Rodriguez, supra, 47 Cal.4th at p. 509.)
DISPOSITION
The two-year concurrent term imposed on count 3, active participation in a criminal street gang, is ordered stayed pursuant to section 654. The sentence is reversed and the matter is remanded for resentencing so as not to violate section 1170.1, subdivision (f), in accordance with the views expressed in part V of this opinion. The trial court is directed to prepare an amended abstract of judgment and to forward a copy of the amended abstract to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
SIMONS, Acting P.J. We concur. NEEDHAM, J. BRUINIERS, J.