Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F08903456 James Petrucelli, Judge.
Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WISEMAN, ACTING P.J.
Defendant Arturo Alejandrez went to a wedding reception with a semiautomatic handgun, got into an argument outside, and fired the gun several times. He fired some of the shots from inside a car as he left. One shot hit a security guard in the leg. Alejandrez was convicted of shooting from a vehicle, assault with a semiautomatic firearm, being a felon in possession of a firearm, and possessing methamphetamine. He was acquitted of participating in a criminal street gang. Gang-enhancement allegations were found not true. With enhancements for using a firearm and causing great bodily injury, Alejandrez received a determinate sentence of 10 years 4 months plus an indeterminate sentence of 25 years to life. On appeal, he argues that (1) the court abused its discretion when it denied his request to bifurcate the trial so the gang enhancements could be considered separately; (2) the court should have applied Penal Code section 654 to stay the sentence for assault with a semiautomatic firearm; (3) the court gave erroneous jury instructions on shooting from a vehicle; and (4) there was insufficient evidence that the security guard suffered great bodily injury. We order a nonsubstantive correction to the abstract of judgment and affirm.
FACTUAL AND PROCEDURAL HISTORIES
Elita Arredondo drove Alejandrez, her boyfriend (later her husband), to Las Palmas Masonic Center in Fresno on the night of May 24, 2008, to pick up their friend, Yvette Loya. Loya was attending a wedding reception there. Arredondo parked near the front entrance. Alejandrez got out of the car. Loya waved to him through the glass of the entranceway, then disappeared into the building to say goodbye to her family.
While he was waiting for Loya to return, Alejandrez became involved in an argument with Esperanza Garcia. Garcia and Annabell Valles were the parties who had gotten married that day. Someone asked Garcia to let Alejandrez in, but she refused because Alejandrez did not have an invitation and Garcia did not know him. Garcia went outside and told Alejandrez to leave. She also asked a security guard to remove him. Alejandrez said, “[M]ake me leave.” He called Garcia a “dyke bitch, ” among other things. Garcia went back in the building, but by this time a crowd of 10 to 15 wedding guests had gathered outside, angered by the slurs Alejandrez had used. Alejandrez continued the argument with the guests. Guests yelled to Alejandrez that he should leave. Some people present heard Alejandrez shout “DLG” and yell that his name was “Wolfy, ” although Alejandrez later denied doing so. DLG stands for Dog Life Gangsters, a subgroup of the Bulldogs gang, of which Alejandrez was once a member. Security guards began trying to corral the guests back into the building. Alejandrez later claimed he believed the crowd was attacking him, and that one member of it took off his jacket and assumed a fighting stance while others closed in around him. Someone was pounding on Arredondo’s car.
Alejandrez pulled a gun from his waistband, a Walther semiautomatic pistol. He waved it in the air and pointed it at the crowd of wedding guests. As he did so, guests heard him say “this is DLG” and tell the crowd to get back. Again, he later denied saying anything about DLG. The wedding guests started moving into the building. A security guard saw Alejandrez fire a few shots. A bullet hit a parked car. Then Alejandrez got into the back seat of Arredondo’s car, on the passenger side. As Arredondo drove away, the wedding guests all went into the building, but one security guard remained outside. Alejandrez reached out the window and over the car’s roof and fired more shots toward the building.
One shot fired from the car hit the security guard’s leg. An ambulance took him to a hospital. An emergency room doctor removed the bullet using local anesthesia and then released the guard. The guard received follow-up treatment for the wound for about a year.
Police found Alejandrez and Arredondo still in the car the same night. The gun was in his waistband and gunshot residue was on his hands. A spent shell casing was found in the car. It was of the same type as eight more spent shell casings located at the scene of the shooting and the live rounds that were in the gun. Also found in the car were a small scale and a plastic bag containing some smaller bags and a white powder later identified as methamphetamine. Alejandrez admitted the gun and the drugs belonged to him.
The district attorney filed an information charging Alejandrez with five offenses: (1) shooting from a car (Pen. Code, § 12034, subd. (c)); (2) assault with a semiautomatic firearm (§ 245, subd. (b)); (3) being a felon in possession of a firearm (§ 12021, subd. (a)(1)); (4) possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and (5) participating in a criminal street gang (§ 186.22, subd. (a)). For sentence-enhancement purposes on count one, the information alleged that Alejandrez personally and intentionally discharged a firearm and proximately caused great bodily injury. (§ 12022.53, subd. (d).) For count two, the information alleged that Alejandrez personally used a firearm. (§ 12022.5, subd. (a).) It also alleged that Alejandrez committed counts one through three for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
Subsequent statutory references are to the Penal Code unless otherwise indicated.
The jury found Alejandrez guilty of counts one through four, but not guilty of count five, participating in a criminal street gang. It found the two firearm-enhancement allegations true, but found the gang-enhancement allegation not true. The court imposed the aggravated term of seven years for count one plus 25 years to life for the firearm enhancement on count one. It imposed a consecutive term of three years four months for count two, consisting of one-third of the six-year middle term for the offense, plus one-third of the four-year middle term for the firearm enhancement. For counts three and four, the court imposed sentences of three years each, concurrent with the sentences for counts one and two. The total sentence was 10 years 4 months plus 25 years to life.
The court stated that it was imposing one-third of the aggravated term of nine years plus one-third of the four-year middle term for the enhancement. This would have amounted to four years four months. That could not, however, have been the court’s intention. A consecutive sentence imposed under section 1170.1, subdivision (a), must be one-third of the middle term. In other words, the figure the court applied for count two—three years three months—was correct, although its explanation of the figure was not.
DISCUSSION
I. Bifurcation of gang-enhancement allegations
Alejandrez made a motion to bifurcate the trial so the gang-enhancement allegations could be presented to the jury separately from the remainder of the case. The court denied the motion. Alejandrez claims this was error.
A trial court is authorized to bifurcate a criminal trial if presentation of evidence on one issue might cause prejudice to the defendant on another issue. For instance, “unique prejudice … may ensue if the jury that determines guilt also learns of the defendant’s status as a person with one or more prior convictions.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) Evidence used to support a gang enhancement, such as predicate offenses used to establish a pattern of gang activity, can have this kind of prejudicial effect. (Id. at p. 1049.) To show that a motion to bifurcate should be granted, a defendant must “‘clearly establish that there is a substantial danger of prejudice.…’” (Id. at p. 1051.) We review the trial court’s decision not to bifurcate for an abuse of discretion. (Id. at pp. 1048, 1051.)
We agree with the People’s view that the court did not abuse its discretion. Alejandrez requested that the gang enhancements be tried separately from the substantive offenses of which he was accused, but he never requested that the gang offense, count five, be separately tried. Generally speaking, the evidence supporting the gang enhancements and the evidence supporting the gang offense would be cross-admissible. Where evidence supporting a gang enhancement is also admissible to prove guilt of an offense, “any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (Hernandez, supra, 33 Cal.4th at p. 1050.) Alejandrez does not argue that the court should have proposed on its own motion to separate the trial of the gang offense from the trial of the other offenses or that his trial counsel afforded him ineffective assistance by failing to request that procedure.
Alejandrez argues in his reply brief that some of the evidence supporting the gang enhancements would not be admissible to prove the gang offense. In particular, he claims that, while the prosecution had to show he committed the current offenses for the benefit of a criminal street gang, this “was not required to be proven for the substantive crime” of street gang participation. Alejandrez is correct that this was not required to prove the offense, but it was relevant to the offense, since a defendant who commits a current offense for the benefit of a gang is likely to be a participant in the gang. Alejandrez also claims that, in a separate trial of his substantive offenses, the prosecution’s gang expert could not have testified about the origins of the Bulldogs gang or its violent activities. This is not correct. Since the substantive offenses included participation in a gang, the expert’s testimony would have been relevant.
Further, some of the gang evidence was cross-admissible for the other offenses. Evidence of gang relatedness is unlike evidence of unrelated priors in that some of it is part of the circumstances of the charged offense itself, even if the charged offense is something other than the offense of gang participation. “A gang enhancement is different from [a] prior conviction.… A prior conviction allegation relates to the defendant’s status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.” (Hernandez, supra, 33 Cal.4th at p. 1048.) In this case, contrary to Alejandrez’s claim, there was evidence that he called out the name of a gang, DLG, during the commission of the offenses charged in counts one and two. Two witnesses (not only one, contrary to Alejandrez’s contention) testified about this at trial—Officer Derrick Johnson and Annabell Valles. Johnson said Esperanza Garcia told him she heard Alejandrez say “what’s up, what’s up, this is DLG” as he waved the gun. This hearsay evidence was admissible because it contradicted Garcia’s trial testimony that she was already inside the building by the time Alejandrez pulled the gun and did not remember hearing Alejandrez say those things. Valles said she heard Alejandrez yell “Wolfy, DLG, Wolfy, Wolfy.” This evidence was relevant to counts one and two because it could have shown Alejandrez’s motive for the shooting. Consequently, other evidence about the gang, including the gang expert’s testimony about the gang’s existence and violent practices, was also relevant to prove counts one and two. In light of this, there was little danger of any prejudice arising from the denial of the motion to bifurcate.
People v. Memory (2010) 182 Cal.App.4th 835, on which Alejandrez relies, is not to the contrary. In that case, there was no evidence that the underlying crime had a gang-related motive. In fact, there was no gang charge or gang-enhancement allegation at all in Memory and the court held that the evidence was not probative on any significant issue and had little purpose but improperly to show criminal disposition and undermine the defendants’ credibility. (Id. at p. 838.) The present case is not similar.
Finally, even if the court had been wrong to deny the motion, we would not reverse the judgment, for the mistake would have been harmless under any standard. The jury rejected the prosecution’s gang claims. It found that Alejandrez did not commit the present offense for the benefit of a criminal street gang and that he was not guilty of participating in a criminal street gang. There is no genuine chance that merely hearing the gang evidence it rejected caused the jury to find Alejandrez guilty of shooting from a car and assault with a semiautomatic firearm when it would have found him not guilty otherwise. Alejandrez claimed he fired to defend himself against the crowd and that the gang evidence damaged the credibility of this claim. A claim of self-defense, however, would not explain why Alejandrez shot a security guard as he was being driven away after the crowd had gone back inside. The jury had extremely strong grounds to find Alejandrez not credible apart from the gang evidence. We conclude any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
II. Section 654
Alejandrez contends that his sentence for count two, assault with a semiautomatic firearm, should be stayed under section 654 because it was part of the same course of conduct and had the same intent as count one, shooting from a car. Defendant is incorrect. Section 654 does not require a stay where the two offenses arising from a single act or course of conduct had separate victims. The victim of shooting from a car was the security guard. The separate victims of the assault with a semiautomatic firearm were the wedding guests who were standing outside when Alejandrez began waving the gun around but before he got in the car.
Section 654 provides, in part, as follows:
“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.”
This statute bars double punishment for a single criminal act or for a single indivisible course of conduct in which the defendant had only one criminal intent or objective, although the conduct violated two statutes. (People v. Bauer (1969) 1 Cal.3d 368, 376; In re Ward (1966) 64 Cal.2d 672, 675-676; Neal v. State of California (1960) 55 Cal.2d 11, 19.) We review under the substantial-evidence standard the court’s factual finding, implicit or explicit, of whether or not there was a single criminal act or a course of conduct with a single criminal objective. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.) As always, we review the trial court’s conclusions of law de novo. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1687.)
In this case, there was no error even if the two convictions were based on a single course of conduct because the two offenses had separate victims. Section 654 does not bar multiple punishments where multiple crimes of violence arising from a single course of conduct had separate victims. (People v. Miller (1977) 18 Cal.3d 873, 885-886, overruled on other grounds in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8; People v. Young (1992) 11 Cal.App.4th 1299, 1311-1312.) The evidence supported a finding that a group of wedding guests was outside when Alejandrez displayed the gun and possibly also during the first series of shots. Even if the shooting had not started, the brandishing and pointing formed the basis of the assault on the guests. At least one victim, the guard, remained outside when Alejandrez shot from the car. Alejandrez’s crimes had as many as 16 victims: Up to 15 wedding guests were victims of assault with a semiautomatic firearm and one security guard was the victim of shooting from a car.
In his reply brief, Alejandrez argues that the crimes did not have multiple victims because the evidence did not rule out the possibility that some of the wedding guests were still outside when he fired from the car, so it is “inaccurate to characterize [the guard] as the only victim of Count 2.” This argument is illogical and does not support Alejandrez’s position. First, the People characterize the guard as the victim of count one, not count two. Second, to overcome the multiple-victims doctrine, Alejandrez would have to show that both offenses had a single victim, not that one of them had multiple victims.
III. Jury instructions on shooting from a car
Alejandrez argues that shooting from a car is a specific-intent offense because section 12034, subdivision (c), requires the perpetrator to shoot specifically “at another person other than an occupant of” the car. He argues that the court erred because it instructed the jury that the offense requires only a general criminal intent.
In determining the legal correctness of the trial court’s instruction on intent, we conduct an independent review. (People v. Alvarez (1996) 14 Cal.4th 155, 220 (Alvarez).) Even if the instruction were erroneous, the error is not a ground for reversal unless it was prejudicial. The error is prejudicial if there is a reasonable probability that it affected the outcome of the trial. (Ibid.)
Where the crime is one of specific intent, a trial court has a sua sponte duty to give an instruction on the union of the culpable act and the required specific intent. (Alvarez, supra, 14 Cal.4th at p. 220.) If instructional error affects a defendant’s substantial rights, an appellate court can review the instruction although no objection was made in the trial court. (§ 1259.) For these reasons, we reject the People’s argument that Alejandrez waived this issue by failing to request a specific-intent instruction or object to the instructions the court gave.
A general intent to commit a crime is simply the intent to do the act that constitutes the crime. A specific intent is an intent not just to do the act constituting the crime but also to do a further act or achieve a future consequence. (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1166-1167; People v. Atkins (2001) 25 Cal.4th 76, 86.) In People v. Hernandez (2010) 181 Cal.App.4th 1494, another panel of this court held that a violation of section 12034, subdivision (c), is a general-intent crime. Extending the reasoning found in cases discussing section 246 (shooting at an inhabited dwelling), the court opined that the offense of shooting from a car at another person is accomplished—and a victim has been shot “at”—even if the defendant shoots only with conscious indifference regarding whether the victim will be hit. It is not necessary for the defendant to specifically intend the consequence that the person be hit. It follows that a violation of section 12034, subdivision (c), can be committed without a specific intent. (People v. Hernandez, supra, at pp. 1500-1501.) We agree with this reasoning.
As the People point out, a petition for review was pending in People v. Hernandez at the time of briefing. That petition was denied on June 9, 2010.
Alejandrez argues that, even if section 12034, subdivision (c), does not require a specific intent that a victim be hit by a bullet, it at least requires a specific intent “that the bullets go toward another person.” If “toward” a person means in a person’s general direction, then we agree that the statute requires the defendant to intend to fire toward a person. If a person is standing to the perpetrator’s north and the perpetrator fires to the south, the gun would not have been fired at (or toward or in the general direction of) that person. We do not agree, however, that this means a specific intent is required. As we have said, a specific intent involves the intent to do a further act or achieve a future consequence. Firing in a person’s general direction does not necessarily involve intending any further act or future consequence. The defendant might only be consciously indifferent about what happens next.
Alejandrez says rejecting his interpretation would mean the phrase “at another person other than an occupant of” the car is surplusage, and there would be no effective difference between section 12034, subdivision (c) and section 12034, subdivision (d), which omits that phrase and imposes a lesser punishment. Again, we disagree. To violate section 12034, subdivision (d), a perpetrator need only “willfully and maliciously discharge[] a firearm from a motor vehicle.…” There need not be any person in whose general direction the gun is fired.
Alejandrez argues that the cases finding a violation of section 246 to be a general-intent crime, on which Hernandez relied, were wrongly decided. His view is that the required intent for shooting “at” an occupied building or inhabited dwelling must be at least the specific intent that the bullets go toward the building or dwelling. We disagree with this for the same reasons we disagree with Alejandrez’s analogous argument about the meaning of “at another person.” A general intent to shoot in the general direction in question is all that is required.
In addition to the general-intent instruction, the court instructed the jury with CALCRIM No. 968, which defines the offense. It stated that, to find Alejandrez guilty, it had to find that he “willfully and maliciously shot a firearm from a motor vehicle” and shot “at another person who was not in a motor vehicle.…” These instructions expressed the necessary intent. The additional instruction that count one required a general criminal intent was correct. There was no error.
IV. Sufficient evidence of great bodily injury
Alejandrez argues that there was insufficient evidence to support the jury’s finding that he inflicted great bodily injury on the security guard he shot in the leg. When the sufficiency of the evidence is challenged on appeal, “the court must review the whole record in the light most favorable to the judgment … to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Carter (2005) 36 Cal.4th 1114, 1156.)
Our Supreme Court has stated:
“It is well settled that the determination of great bodily injury is essentially a question of fact, not of law. ‘“Whether the harm resulting to the victim … constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.”’ [Citations.]” (People v. Escobar (1992) 3 Cal.4th 740, 750.)
Section 12022.53, subdivision (d), the enhancement statute under which Alejandrez was charged, incorporates the definition of great bodily injury found in section 12022.7, subdivision (f): “a significant or substantial physical injury.” In this case, the jury was instructed with CALCRIM No. 3149: “Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” Alejandrez does not question the correctness of these instructions.
The security guard testified that a bullet hit him in the lower part of his right leg. He felt pain in the leg and saw it bleeding. An event manager at Las Palmas Masonic Center testified that he saw the guard “laying there in a pool of blood.” An ambulance took the guard to a hospital emergency room, where he stayed for five or six hours. An emergency room doctor testified that the bullet nearly went all the way through the guard’s calf: “It was through and through except it didn’t come all the way through the other side. The bullet was just under the skin.” It was “pushing against the skin, but not breaking the skin.” It “had gone all the way through the leg, but not quite exiting the leg.” The doctor anesthetized the area, made a small incision, and removed the bullet with forceps. Then he irrigated and bandaged the wound. The guard was allowed to leave the hospital after this treatment. He testified that follow-up treatments continued for about a year. No evidence of the nature of the follow-up treatments was presented.
This issue requires little analysis. Applying its common sense and general background knowledge, the jury could reasonably find that a bullet through (or nearly through) a leg is a significant and substantial injury, not a minor or moderate one.
Alejandrez cites People v. Martinez (1985) 171 Cal.App.3d 727, 735-736 and People v. Caudillo (1978) 21 Cal.3d 562, 588-589, overruled on other grounds by People v. Martinez (1999) 20 Cal.4th 225, 237, footnote 6, in which evidence of superficial lacerations were held not sufficient to prove great bodily injury. These cases do not support Alejandrez’s view, for the security guard sustained not a superficial laceration but a gunshot wound that penetrated almost all the way through his leg. Alejandrez also cites People v. Nava (1989) 207 Cal.App.3d 1490, 1497-1498, in which the Court of Appeal held it was error to instruct the jury that a bone fracture was a great bodily injury as a matter of law. Nava is not on point, since the court here did not instruct the jury that the gunshot wound was a great bodily injury as a matter of law. Finally, Alejandrez cites People v. Le (2006) 137 Cal.App.4th 54, 57-59, in which it was held that sufficient evidence supported a great-bodily-injury finding where a bullet passed through the victim’s left leg and came to rest in his right, resulting in a 24-hour hospital stay and seven weeks of limping. Alejandrez points out that, in People v. Cross (2008) 45 Cal.4th 58, 64, the Supreme Court cited Le with approval. He says this “suggests that a simple soft tissue injury, without resulting disability for a number of weeks, would not qualify as great bodily injury.” We disagree. There is nothing in Le or Cross remotely suggesting that the facts of Le stand for some kind of minimum qualifications for a finding of great bodily injury.
The People cite two cases involving gunshot wounds of a severity comparable to that at issue here, in which findings of great bodily injury were upheld on appeal: People v. Mendias (1993) 17 Cal.App.4th 195, 201, 205-206 (gunshot wound to upper thigh; victim treated and held in hospital overnight; pain gone by time of trial); People v. Lopez (1986) 176 Cal.App.3d 460, 462, 463, footnote 5, 463-465 (one victim shot in buttock and another victim shot through leg; no bullet fragments remained in victims’ bodies and no evidence of medical treatment was presented). We agree with the People that these cases were decided correctly and support the conclusion that there was sufficient evidence of great bodily injury in this case.
V. Correction to the abstract of judgment
The abstract of judgment states that, in addition to the indeterminate sentence of 25 years to life, Alejandrez received a sentence of life with the possibility of parole for count one. The People concede that the court imposed the sentence of 25 years to life but did not impose a sentence of life with the possibility of parole, so the abstract of judgment should be amended to remove the latter sentence. We agree and order the abstract be corrected.
DISPOSITION
The abstract of judgment is amended to state that the sentence for the firearm enhancement on count one is simply “25 years to life, ” not both “25 years to life” and “life with the possibility of parole.” The trial court shall forward the corrected abstract to the appropriate prison authorities. The judgment is affirmed.
WE CONCUR: Kane, J., Detjen, J.