Opinion
E030954.
7-15-2003
THE PEOPLE, Plaintiff and Respondent, v. CASIMIRO AMEZCUA et al., Defendants and Appellants.
David Joseph Macher, under appointment by the Court of Appeal, for Defendant and Appellant Casimiro Amezcua. Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant Alberto Barreto. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela A. Ratner Sobeck, Supervising Deputy Attorney General, Arlene Aquintey Sevidal and Laura D. Stilwell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Casimiro Amezcua and Alberto Barreto (hereafter referred to either collectively as defendants or individually by their last names) appeal from the judgments entered against them following a joint trial in which the jury found them each guilty as charged of one count of first degree murder and three counts of attempted willful, deliberate, and premeditated murder. The jury further found true special allegations that defendants committed each of the crimes for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1), and that a principal personally used a firearm causing death or great bodily injury to the victim within the meaning of Penal Code section 12022.53, subdivisions (d) and (e)(1). The trial court sentenced each defendant to serve a total of 170 years in state prison, the details of which we recount below.
The charges all stem from a gang-related shooting on Union Street on the night of November 27, 1999, in which defendants, members of a criminal street gang called Florencia 13, were alleged to have opened fire on a group of people associated with 7th Street, a rival gang. The shooting occurred in retaliation for the shooting of a Florencia member by 7th Street earlier in the day. As a result of defendants alleged actions, Jesse Martinez was shot and killed. His girlfriend Natalie Molina was shot in the back and remains a paraplegic as a result of the injury. Two others, Keith Caldwell and Angela Alvarado, also were shot and injured.
In this appeal Amezcua first claims that the trial court erred in admitting out-of-court statements defendant Barreto made that implicated Amezcua in the shootings. Barreto, who did not testify at trial, made the statements to Ralph Robles while Barreto and Robles were together in a holding cell at the courthouse awaiting a court appearance. Robles had been charged as an accessory after the fact for his role in disposing of the guns used in the shooting and he later pled guilty as part of a plea agreement. We agree with Amezcuas claim that Barretos statements were improperly admitted against Amezcua and we further agree with his assertion that the error was prejudicial. Therefore, we will reverse the judgment as to defendant Amezcua.
Barreto raises claims of sentencing error all of which stem directly or indirectly from the criminal street gang enhancements the trial court imposed in this case. We agree with several of his claims, as we explain below, and will modify his sentence accordingly. Barreto also purports to join in the claims raised by Amezcua. The Attorney General objects and urges us to ignore defendants attempt to join in each others claims. Rule 13(a)(5) of the California Rules of Court expressly authorizes parties to join in each others arguments. Consequently, we are not at liberty to comply with the Attorney Generals request. To the extent Amezcuas claims are not fact specific and therefore pertain equally to Barreto we must honor Barretos request to join in the issues Amezcua raises in this appeal.
Amezcua also joins in Barretos claims but because we are reversing the judgment as to him, his joinder is irrelevant.
Rule 13(a)(5) provides, "Instead of filing a brief, or as part of its brief, a party may join in or adopt by reference all or part of a brief in the same or a related appeal." (Cal. Rules of Court, rule 13(a)(5).)
FACTS
The circumstances surrounding the shootings are essentially undisputed and we briefly recount the pertinent details. On the night of November 27, 1999, Samuel Perez and several of his friends were gathered outside his house on Union Street when two men walked up and asked Perez where he was from. When Perez responded 7th Street, the name of the street gang to which Perez belonged, one or both of the men said the name of their gang, Florencia, and then one of them pulled a .22 rifle out from behind his leg and started shooting. Perez ran and escaped injury.
Jesse Martinez was shot and killed by the gunfire. His brother, Alex, was at the gathering on Union Street and testified in pertinent part that after the man with the rifle stopped shooting, the second man started shooting a handgun. Martinez believed the second person fired two shots from the handgun. The two men then ran to a nearby car and drove away. Alex Martinez could not identify defendant Barreto but did identify defendant Amezcua in a photo lineup. At trial, Alex again identified Amezcua and stated that he was the second shooter, the one with the handgun.
Ralph Robles (Puppet) testified in pertinent part that he is a member of Florencia 13 and that on the night in question he was in Fontana at the home of his girlfriend Elizette Morales. Robles was ill with an asthma attack and trying to sleep but twice was awakened by phone calls. He refused to talk with the first caller but spoke with the second who was Barreto (Demon) who told Robles that a Florencia gang member had been shot that day while coming out of a bakery. Barreto asked if Robles would come with him to look for 7th Street gang members, the gang reputedly responsible for the bakery shooting. Robles was too ill to go and told Barreto so. Sometime later, Barreto showed up at Moraless house in Fontana in an attempt to persuade Robles to join him. Robles, who was in bed trying to sleep, again refused. Later that evening, Barreto returned to Moraless home and went into the bedroom where Robles was sleeping. Robles awoke when Barreto lifted the mattress on the bed. When he asked Barreto what he was doing, Barreto replied, "leaving something." The next morning, Robles found a .22 caliber rifle and a .380 caliber handgun under the mattress. Robles and Morales disposed of the rifle by taking it to a friend of Moraless but Robles kept the handgun which police later found in the closet of his bedroom.
Additional facts will be discussed, below, as pertinent to the issues defendants raise in this appeal.
DISCUSSION
Defendants, as previously noted, jointly and individually raise numerous claims of error. Because it is potentially dispositive of his appeal, we first address defendant Amezcuas claim that the trial court erred in admitting Barretos out-of-court statement implicating Amezcua in the shootings on Union Street.
1.
ADMISSIBILITY OF DEFENDANT BARRETOS OUT-OF-COURT STATEMENT
Over defendant Amezcuas hearsay and Sixth Amendment objections, the trial court allowed Ralph Robles to testify to statements defendant Barreto made to Robles while the two were together in a courthouse holding cell. Robles had been arrested and charged with being an accessory to the murder and attempted murders based on his role in disposing of the guns used in the shootings. Robles entered a guilty plea in accordance with an agreement reached with the district attorney. The plea agreement among other things required Robles to testify at defendants trial. The police interviewed Robles after he had pled guilty and had been released from jail. In that interview Robles told the police what Barreto had said to him while the two were together in a courthouse holding cell awaiting a hearing.
In his statement to the police Robles said that Barreto had told him that Barreto (whom Robles referred to by his gang moniker, Demon) fired the rifle and that defendant Amezcua (whom Robles referred to as Shadow) was the other shooter. When one of the officers questioned whether Barreto told Robles that Barreto had fired the .22 rifle, Robles answered, "Yeah, cause he said when were going through court, he was telling me that the .22 — he was using .22, and they wouldnt be able to pin it on him. They would be able to pin it on Shadow. Everythings going to go on Shadow, because Shadow didnt have gloves like he did. That — all the prints were going to be on the gun cause of Shadow. So he was trying to throw all the blame on Shadow. That why he was like — he was trying to say — he was getting all his family members to say that he wasnt there. He was trying to say — tell his girlfriend to tell you guys that he was at home, watching some movies, or something." (Sic. )
In an in limine motion, the trial court found that Barretos statements to Robles were admissible under Evidence Code section 1230 as a statement against defendant Barretos penal interest. Because Barreto would not be subject to cross-examination, Amezcua argued that his Sixth Amendment right to confront and cross-examine witnesses would be violated if Barretos statements were introduced at trial. The trial court also rejected this argument, citing People v. Greenberger (1997) 58 Cal.App.4th 298.
Based on the trial courts ruling, Robles testified at trial, in pertinent part, that Barreto said he felt sorry for Amezcua because defendant Barreto was wearing gloves at the time of the shooting and that the police would not find Barretos prints on the .22 rifle. When the prosecutor asked whether Barreto actually said that Amezcua was there at the time of the shooting, Robles said no, that what Barreto said was "all the charges were going to fall on [Amezcua]" because Barretos fingerprints were not on the guns. When the prosecutor again asked if Robles had told the detectives that Barreto said Amezcua was the other suspect, Robles answered, "He just said that [Amezcua] was — he was there at the time of the shooting and that everything was going to pin on him because there is too much evidence against him and that is how he was going to get everything, that is how he [presumably referring to Barreto] was going to get off the case . . . ." The prosecutor then asked Robles to read the pertinent portion of the transcript of Robless interview by the police. When asked whether he remembered saying that Barreto had said Amezcua was one of the shooters, Robles said no, what Barreto said was that Amezcua was there with them.
Later, and again over defendant Amezcuas "multiple hearsay" objection, the trial court permitted one of the police officers who had interviewed Robles to testify in pertinent part that Robles said that Barreto had told him that Amezcua was one of the shooters and that Amezcua was armed with a handgun. The trial court was of the view that the police officers testimony was admissible as a prior inconsistent statement.
Defendant Amezcua contends as he did in the trial court that Barretos out-of-court statements were inadmissible hearsay when offered as evidence against Amezcua and that admission of the statements violated Amezcuas Sixth Amendment right to confront and cross-examine witnesses. We agree that Barretos statements were inadmissible hearsay and that the error was prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836-837, 299 P.2d 243. Because we resolve the issue on state law grounds, we will not address the constitutional issue. (People v. Leonard (1983) 34 Cal.3d 183, 187, 193 Cal. Rptr. 171, 666 P.2d 28.)
In ruling that Barretos statements to Robles were admissible against both Barreto and Amezcua, the trial court relied on People v. Greenberger, supra, 58 Cal.App.4th 298. In that case, Division Four of the Second District held that a statement made by a non-testifying defendant that implicates a codefendant does not violate the confrontation clause of the Sixth Amendment and is admissible against both defendants in a joint trial if the statement has sufficient indicia of reliability to come within Evidence Code section 1230, the hearsay exception for a statement against the non-testifying defendants penal interest. (Id. at pp. 330-331.) Since Greenberger, the California Supreme Court decided People v. Duarte (2000) 24 Cal.4th 603, and clarified that to come within Penal Code section 1230, the hearsay exception for statements against penal interest, the non-declarants statement must be specifically disserving to the hearsay declarant. (Id. at p. 612.) Accordingly, we first assess the admissibility of Barretos statements under Evidence Code section 1230.
A. Evidence Code section 1230
"In California, evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true. ([Evid. Code,] § 1230.) The proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarants penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.]" (People v. Duarte , supra, 24 Cal.4th at pp. 610-611.)
Whether a statement is against the declarants penal interest initially turns on whether the statement is disserving to the declarants interest. As the Supreme Court reiterated in People v. Duarte, supra, "In order to " protect defendants from statements of unreasonable men if there is to be no opportunity for cross-examination," we have declared [Evidence Code] section 1230s exception to the hearsay rule inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant. [Citation.]" (People v. Duarte, supra, 24 Cal.4th at p. 612, quoting People v. Leach (1975) 15 Cal.3d 419, 441, 124 Cal. Rptr. 752, 541 P.2d 296.) Or as the court stated in Leach, which the Greenberger court cited as defining the extent of the hearsay exception for declarations against penal interest, "in the absence of any legislative declaration to the contrary, not all statements which implicate the declarant are admissible against the nondeclarant. [Citation.] Only those statements or portions of statements that are specifically disserving of the penal interest of the declarant were deemed sufficiently trustworthy to be admissible. Statements not specifically disserving were characterized as collateral statements and inadmissible." (People v. Greenberger, supra, 58 Cal.App.4th at p. 328, quoting People v. Leach, supra, 15 Cal.3d. at p. 441, emphasis added.) We evaluate Barretos statements to Robles under the foregoing principles.
In his trial testimony, Robles said that Barreto told him, among other things, that (1) all the blame for the crime would fall on Amezcua because Barreto wore gloves and therefore the police would not find Barretos fingerprints on the weapons, and (2) Amezcua was at the shooting. In his statement to the police, Robles also said that Barreto told him Amezcua was one of the shooters and that Amezcua fired the handgun. The trial court admitted that statement at trial to impeach Robless trial testimony. We will discuss these statements in reverse order because the admissibility of Robless statement to the police is easy to resolve.
Robless statement to the police that Barreto said Amezcua was one of the shooters and that he fired the handgun is hearsay — the statement was offered to prove the truth of the matter asserted, namely, that Amezcua was one of the shooters. (Evid. Code, § 1200.) Because the statement is hearsay, it was only admissible at trial if it comes within an exception to the general rule that hearsay is inadmissible. (Evid. Code, § 1200, subd. (b); People v. Duarte, supra, 24 Cal.4th at p. 610.) Barretos statement that Amezcua was one of the shooters does not implicate Barreto in criminal conduct and thereby subject Barreto to criminal liability. Therefore, the statement is not a statement against Barretos penal interest. Simply put, the statement only implicates Amezcua, not Barreto the hearsay declarant. Therefore, the statement was not admissible at trial under Evidence Code section 1230, the only hearsay exception posited.
By invoking his Fifth Amendment privilege against self-incrimination, defendant Barreto was unavailable as a witness at trial.
This same analysis applies to Robless trial testimony that Barreto said Amezcua was present at the shooting. That statement was offered for its truth, i.e., to show that Amezcua was present at the shooting. The statement did not implicate the hearsay declarant, Barreto, in criminal conduct and therefore was not admissible under Evidence Code section 1230. As previously noted, when Robles testified at trial and stated he could not recall telling the police that Barreto had identified Amezcua as one of the shooters, the trial court allowed the prosecutor to introduce Robless statement to the police to impeach Robles. Amezcua is correct in his view that the trial court erred in admitting that statement into evidence. As related by a police officer, which is the manner in which the statement was presented at trial, Robless statement contains multiple hearsay — Robless statement to the officer is hearsay and Barretos statement to Robles is also hearsay. In responding to Amezcuas multiple hearsay objection and deciding whether the police officers testimony was admissible, the trial court should have determined whether each hearsay statement was separately admissible. The trial court did not address each statement separately but instead focused only on Robless statement to the police officer, which the court found was admissible as a prior inconsistent statement. The court should not have ended its inquiry there and should have separately decided whether Barretos statement to Robles regarding Amezcua was also admissible. That statement, as discussed previously, was inadmissible hearsay. Thus, the trial court erred in admitting that aspect of Barretos statement to Robles.
The remaining aspect of Barretos statement is Robless trial testimony that Barreto told him all the blame for the crime would fall on Amezcua because Barreto wore gloves. This statement contains two separate factual assertions. The first is that Barreto wore gloves. The second is that Amezcua would take all the blame for the shooting. The first statement is hearsay only if offered to prove the truth of that statement, i.e., that Barreto wore gloves so his fingerprints would not be found on the weapons. Barretos statement was not offered for its truth but rather as circumstantial evidence from which the jury could reasonably and logically infer that Barreto participated in the crime. From Barretos statement that he wore gloves and his fingerprints would not be found on the guns, the jury could logically and reasonably draw an inference that Barreto was involved in the shootings. (See Evid. Code, § 600, subd. (b), which defines an inference as "a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.") Barretos statement about having worn gloves was properly admitted into evidence.
We cannot say the same about the second factual assertion, that all the blame would fall on Amezcua. That statement implies that Amezcua was one of the shooters. Because the statement is only significant and, thus, relevant, if offered to prove the truth of that implicit assertion, i.e., that Amezcua was one of the shooters, the statement is hearsay. The statement that Amezcua was one of the shooters is not a statement against Barretos penal interest because it does not implicate Barreto in criminal conduct. Instead, the statement implicates only Amezcua. (Evid. Code, § 1230; People v. Duarte, supra, 24 Cal.4th at pp. 611-612.) As such the statement does not come within the exception for hearsay statements against the penal interest of the declarant and therefore should not have been admitted at trial.
In summary, we conclude that Barretos statements to Robles regarding Amezcua were hearsay and not within the exception set out in Evidence Code section 1230 for statements against the penal interest of an unavailable hearsay declarant. Because the challenged statements were not admissible as declarations against Barretos penal interest, they do not meet the first requirement of Greenberger which requires that the statement constitute a statement against the declarants penal interest. Therefore, the statements were inadmissible against Amezcua on that basis alone. (People v. Greenberger, supra, 58 Cal.App.4th at p. 329.)
B. Prejudice
The erroneous admission of evidence requires reversal of a conviction only if that error was prejudicial in that it resulted in a miscarriage of justice. (Evid. Code, § 353, subd. (b); Cal. Const., art. VI, § 13.) A miscarriage of justice occurs when this court is able to say, absent the erroneously admitted evidence it is reasonably probable the jury would have reached a result more favorable to defendant. (People v. Watson, supra, 46 Cal.2d at pp. 836-837.) Application of the Watson standard in this case compels us to conclude that the error was prejudicial.
The only issue at trial was the identity of the two shooters. Although the Attorney General views the evidence against defendant Amezcua as "overwhelming" we do not share that view. Two witnesses identified Amezcua at trial as one of the shooters. One witness, Alex Obezo, referred to at trial by his gang name, Cyclone, was a passenger in the car with Barreto and Amezcua and was present during the shooting. The other witness, Alex Martinez, is the brother of the murder victim Jesse Martinez, and was present at the party on Union Street when the shootings occurred.
Alex Martinez testified, in pertinent part, that he saw defendant Amezcua fire two shots from a handgun after another man emptied his rifle into the group on Union Street. Martinez did not see Amezcua "front face forward" because he was standing behind the man with the rifle and about 20 to 30 feet away. Martinez confirmed that he had identified Amezcua in a photo lineup and that he could not identify defendant Barreto. At trial Alex Martinez stated that Amezcua fired the handgun. According to the detective who interviewed him on the night of the shootings, however, Martinez stated that Amezcua was the taller suspect who pulled out a rifle from under a long coat, yelled Florencia, and then began firing at the group of people. When questioned about the accuracy of the detectives report, Alex Martinez confirmed that the report was wrong and that it is his testimony and memory that Amezcua "is the one with the handgun, not the rifle."
Martinez identified defendants by number, number one referring to defendant Barreto and number two referring to Amezcua.
The Attorney General incorrectly states that Martinez identified Amezcua in three separate photo lineups. Martinez did view three different photo lineups but only one related to Amezcua, the other two related to other suspects including defendant Barreto.
Alex Obezo (Cyclone) testified in pertinent part that on the night in question he was with Amezcua, Barreto, and a third person referred to as Dreamer. According to Obezo, who was 18 years old at the time, defendants and Dreamer came to his house on the night in question looking for a "bigger gun" but Obezo did not have a gun. Obezo left his house with defendants and Dreamer because they had agreed to give him a ride to his girlfriends house in Fontana. Obezo described the car, which he said Amezcua was driving, as a black, four-door midsize vehicle. According to Obezo, Barreto was in the front passenger seat and Obezo and Dreamer were in the back seat with Obezo on the right side of the car, behind Barreto. On the way to Fontana, Amezcua drove by a group of people standing outside a house on Union Street. Amezcua parked the car on a side street and he and Barreto got out. They both had guns, Barreto a rifle and Amezcua a handgun. Obezo testified that Amezcua left the car engine running while he and Barreto walked back toward the group of people on Union Street. Obezo and Dreamer stayed in the car. After the shooting, defendants, Obezo, and Dreamer drove to Elizette Moraless house in Fontana. Both Amezcua and Barreto went into the bedroom where Robles (Puppet) was sleeping. Obezo waited in the living room. A few minutes later, both defendants went outside and then returned with the guns. Obezo acknowledged that when he initially spoke to the police he lied because he was afraid of what might happen to his family and that even when he told the truth, he did not tell the police that Dreamer was with them.
In contrast with Obezos testimony, Robles told the police and also testified at trial that Obezo and Barreto were at his girlfriends house on the night of the shooting and tried to get Robles to go with them. Robles also testified that he had not seen defendant Amezcua on the night of the shooting and that the only time he had ever actually seen him was in court. Robless girlfriend, Elizette Morales, testified, in pertinent part, that she had received a page earlier in the evening on the night of the shooting. When she returned the call the person who answered identified himself as Cyclone (Obezos gang moniker). Cyclone said he needed to talk with Robles. After the phone call Barreto and some other guys, including Obezo, came to Moraless house to talk with Robles. Elizette Moraless friends, Theresa and Dreamer, were also at the house. When Barreto and Obezo left, Dreamer went with them. Sometime later Barreto returned and put guns under the mattress of her bed, where Robles was sleeping, although Elizette did not discover the guns until the following morning. When asked if she recognized Amezcua, Ms. Morales said no.
Obezos testimony not only conflicts with that of Robles and Morales but with that of Samuel Perez who testified in pertinent part that he and some friends were hanging out in front of his house on Union Street on the night the shootings occurred. Perez, a 7th Street gang member, saw a white or primer gray two-door older car that looked like a Toyota drive by and park on a side street. Perez saw two people get out from the passenger side of the car, which was the side of the vehicle exposed to Perezs view. Perez testified that he saw the front passenger seat pull forward which is what made him think the car had two not four doors. The driver, according to Perez, did not get out of the car. The two people from the car started to walk toward Perez and his friends. When they got to Perez, the one wearing a dark hooded sweatshirt, whom Perez referred to as "number one," asked Perez where he was from. When Perez answered 7th Street, number one pulled out a rifle, pointed it toward Perezs leg, and started shooting. Perez ran and was not hit by any bullets. Perez could not identify either Barreto or Amezcua although he did describe number one as being bald headed with a thick mustache, between 18 and 21 years of age, and wearing a black hooded sweatshirt, a physical description consistent with defendant Barretos appearance at the time. According to Perez, number two was stockier, looked to be a little younger than number one, maybe 18 or 19 years old, and two to three inches taller than number one.
The prosecutions case against Amezcua depended almost entirely on the testimony of Alex Obezo. According to the evidence, however, Obezo could have been the second shooter, a possibility counsel for Amezcua focused on during closing argument. Obezo was in the back passenger seat of the car which, according to Samuel Perez, was where one of the shooters must have been seated because Perez saw the front seat pull forward and two people get out on the passenger side. Obezo also resembles defendant Amezcua in appearance in that the two are about the same age, height, and weight. Only Martinez identified Amezcua from a photo lineup as one of the shooters after having only seen Amezcua from the side and at night. Martinezs trial testimony differed from what the police reported he had stated about the weapons used by the two shooters. No witness other than Obezo connected Amezcua with the shootings. Obezo however, had a significant motive to lie about the identity of that shooter. Given the paucity of evidence connecting Amezcua with the crime and Obezos apparent motive to lie, defendant Barretos statements as recounted by Robles could well have been the decisive factor for the jury.
Compounding the error in admitting the evidence, the trial court, relying on People v. Greenberger, supra, twice instructed the jurors that they could consider Barretos hearsay statements in deciding whether Amezcua was guilty of the charged crimes, although in the second instruction, the court added the caveat that "statements made by a defendant should be viewed with caution."
Under the circumstances recounted above, we must conclude that it is reasonably probable the jury would have reached a result more favorable to Amezcua if the trial court had not erroneously admitted defendant Barretos hearsay statements implicating defendant Amezcua in the crimes. Because the trial court compounded that error by instructing the jury it could consider Barretos statements in deciding the issue of defendant Amezcuas guilt, we simply cannot say the error was harmless. Therefore, we must reverse the judgment as to Amezcua.
2.
AMEZCUAS REMAINING CLAIMS OF ERROR
Amezcua challenges the sufficiency of the evidence to support the jurys verdicts finding him guilty of willful, deliberate and premeditated attempted murder. We must address this issue even though we are reversing the judgment as to Amezcua because if the challenge is meritorious, double jeopardy would prohibit a retrial of Amezcua on the attempted murder charges.
Barreto purports to join Amezcua in this claim. However, Amezcuas claim is based on evidence, or the lack thereof, that is specific to him. Because Barreto does not separately raise the issue and address the claim he does not identify the specific factual deficiencies that render the evidence insufficient as to him. Accordingly, we will only address the sufficiency of the evidence issue as it relates to Amezcua.
A. Sufficiency of the Evidence to Support Attempted Murder
Amezcua contends the evidence does not show that he intended to kill and therefore cannot support the jurys verdicts finding him guilty of attempted murder as alleged in counts 2, 3, and 4. We disagree.
Unlike murder, which may be predicated on implied malice, attempted murder requires a specific intent to kill the intended victim. (People v. Bland (2002) 28 Cal.4th 313, 327-328.) The concept of transferred intent does not apply to attempted murder. (Id. at p. 331.)
Amezcua argues that the evidence shows that the shooters only intended to kill 7th Street gang members and because Samuel Perez was the only person who identified himself as being from 7th Street, the shooters only intended to kill him. Because the intent to kill Perez does not transfer to the actual victims in this case (People v. Bland, supra, 28 Cal.4th 313), Amezcua contends the evidence is insufficient to support his convictions on the three attempted murder counts.
We do not take such a narrow view of the evidence. First, Amezcua confuses the prosecutors theory of the case with the theories of liability supported by the evidence. The prosecutors theory was that the shooters motive in going to Union Street was to shoot 7th Street gang members in order to retaliate for the shooting of a Florencia 13 member earlier that same day. However, the jury was not bound by that theory. The jury was constrained only by the evidence and the evidence in this case is subject to a broader interpretation than that posited by the prosecutor. From the fact that Barreto and the second shooter, whom we assume for the sake of this argument was Amezcua, fired with impunity once Perez identified himself as a 7th Street gang member the jury could reasonably infer that the shooters assumed everyone in the group on Union Street was associated with 7th Street and therefore the shooters intended to kill them all. Although the evidence shows that Barreto opened fire, when Barreto emptied his rifle of ammunition, the other shooter then fired at least four rounds from the handgun as evidenced by the four, .380 caliber shell casings found at the scene. Assuming defendant Amezcua was the person who fired the handgun, the jury could reasonably infer that he intended to kill as many people present as possible. (People v. Vang (2001) 87 Cal.App.4th 554, 563-564.)
Amezcua notes that since he only fired four shots, and Barreto fired many more, the statistical probability that his shots actually hit anyone was very low. That assertion is relevant only to show the accuracy of Amezcuas aim and does not resolve the issue of his intent. Since actual injury is not necessary to prove attempted murder, the assertion is irrelevant.
But even if the jury relied on the prosecutors theory of the case, the evidence is sufficient to support the attempted murder convictions under the concept of concurrent intent. As articulated by the Supreme Court in People v. Bland, " Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone. This situation is distinct from the "depraved heart" [i.e., implied malice] situation because the trier of fact may infer the actual intent to kill which is lacking in a "depraved heart" [implied malice] scenario. [Citation.]" (People v. Bland, supra, 28 Cal.4th at p. 330.)
In Bland the defendant intended to kill and did kill Wilson by opening fire on the vehicle Wilson was driving. In doing so, the defendant also shot but did not kill the passengers in the vehicle. After citing the concept of concurrent intent with approval, the Supreme Court noted, "This case permits — virtually compels — a similar inference. Even if the jury found that defendant primarily wanted to kill Wilson rather than Wilsons passengers, it could reasonably also have found a concurrent intent to kill those passengers when defendant and his cohort fired a flurry of bullets at the fleeing car and thereby created a kill zone. Such a finding fully supports attempted murder convictions as to the passengers." (People v. Bland, supra, 28 Cal.4th at pp. 330-331, original emphasis, fn. omitted.) The court further noted, "This concurrent intent theory is not a legal doctrine requiring special jury instructions such as is the doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may draw in a given a case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others." (Id. at p. 331, fn. 6.)
Under the concurrent intent theory, the act of shooting at the group on Union Street can be construed as evincing an intent to kill not only 7th Street gang members, but also a concurrent intent to kill others within the zone of danger. That concurrent intent is sufficient to support the attempted murder convictions in this case. (People v. Bland, supra, 28 Cal.4th at pp. 330-331.)
Accordingly, the evidence is sufficient to show Amezcua, assuming he is the second shooter, possessed the requisite intent to kill and thus to support his convictions on the attempted murder counts. Therefore, he may be retried on those counts on remand.
B. Jury Instructions
Amezcua raises several challenges to the jury instructions. To provide guidance to the trial court on remand, we briefly address those claims.
i. CALJIC No. 8.65
Amezcua challenges the trial courts instruction on transferred intent, CALJIC No. 8.65, because the theory does not apply to attempted murder as the Supreme Court held in People v. Bland. Transferred intent does apply to murder, however, which is why the trial court instructed the jury according to CALJIC No. 8.65 in this case. Because the instruction, as given by the trial court, referred to a "mistaken killing" rather than a mistaken injury, it is apparent that the instruction applies only to the murder charge and not the attempted murder charges. (People v. Bland, supra, 28 Cal.4th at pp. 331-332.) Moreover, the prosecutor only argued the instruction in closing as it related to the murder charge. In short, the trial court did not err in giving CALJIC No. 8.65.
Barreto joins in this claim but like the sufficiency of the evidence claim, Amezcuas articulation is fact specific. Although Barreto does not separately address this claim, our resolution of the issue disposes of the claim as to both defendants.
ii. CALJIC Nos. 2.04 and 2.05
Amezcua also challenges the trial courts instructions regarding fabrication of evidence, CALJIC Nos. 2.04 and 2.05, claiming that the instructions only pertained to Barreto, the only defendant about whom the evidence suggested an attempt to fabricate evidence. Presumably the trial court will not give those instructions on remand because they are not relevant to Amezcua.
The trial court gave the instructions based on testimony from Ralph Robles that Barreto said he was going to present an alibi at trial, namely that his girlfriend and family members would testify that Barreto was home watching movies with them on the night the shootings occurred.
iii. CALJIC No. 2.08
Amezcua also challenges the trial courts modified version of CALJIC No. 2.08 which instructed the jury that they could consider Barretos statements to Robles in assessing Amezcuas guilt. Because we hold that the trial court erred in admitting those statements as evidence against Amezcua, we assume the trial court will not repeat that error on remand and likewise will not give the offending and erroneous jury instruction.
iv. CALJIC No. 17.41.1
Amezcua and Barreto also contend the trial court erred by instructing the jury according to CALJIC No. 17.41.1. The Supreme Court held in People v. Engelman (2002) 28 Cal.4th 436 that although the instruction does not violate rights protected under the Constitution, it does focus too closely on the deliberative process and therefore should not be given in future cases. (Id. at p. 449.) As to Barreto, any error in giving the instruction was harmless. As to Amezcua, we must assume the trial court will follow Engelman and not give CALJIC No. 17.41.1 in the event of a retrial.
The remaining issues we address in this appeal pertain only to defendant Barreto.
3.
SENTENCING ISSUES
The trial court sentenced each defendant to an indeterminate term of 25 years to life on count 1, the murder conviction, plus a consecutive term of 25 years to life on the related gun use enhancement under Penal Code section 12022.53, subdivision (d). The trial court also imposed and stayed prison terms of three years on the gang enhancement under section 186.22, subdivision (b). On counts 3, 4, and 5, the attempted murder convictions, the trial court sentenced each defendant to a term of life with the possibility of parole, those terms to be served consecutively to each other and to count 1. The trial court also imposed a consecutive term of 25 years to life on the gun use enhancements related to each of the attempted murder counts. In addition, the trial court imposed a consecutive term of 15 years to life for the gang enhancements the jury found true in connection with each attempted murder charge. Defendants each received total terms of imprisonment of 170 years to life in state prison.
All further statutory references will be to the Penal Code unless otherwise indicated.
The enhancements of 15 years to life are wrong. The pertinent statute, section 186.22, subdivision (b)(4) (now subdivision (b)(5)), provides for a minimum parole period of 15 years and not for a separate term of 15 years to life. Because we are striking the gang enhancements, we will not address the issue further and point out the mistake in order to aid the trial court in future cases.
A. Gang Enhancements
Barreto contends the trial court erred in imposing both gang and gun use enhancements because the jury did not find that he personally and intentionally discharged a firearm. We agree.
Section 12022.53, subdivision (d) provides for an enhancement of 25 years to life on a defendant who intentionally and personally discharges a firearm and proximately causes death in the commission of murder. Prior to its amendment in 2002, and therefore as pertinent to this case, section 12022.53, subdivision (e)(1) provided: "The enhancements specified in this section shall apply to any person charged as a principal in the commission of an offense that includes an allegation pursuant to this section when a violation of both this section and subdivision (b) of Section 186.22 are pled and proved." Thus, a principal is subject to the 25-year enhancement even if he did not personally use a firearm, if the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang and at least one principal used a firearm. (People v. Salas (2001) 89 Cal.App.4th 1275, 1281.)
In 1999, when defendants committed their crimes, section 186.22, subdivision (b)(1) provided, "Except as provided in paragraph (4), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one, two, or three years at the courts discretion. [Emphasis added.]" The exception in paragraph (4) of section 186.22, subdivision (b) stated, "Any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life, shall not be paroled until a minimum of 15 calendar years have been served."
Section 12022.53, subdivision (e)(2) provides that an enhancement for participation in a criminal street gang pursuant to section 186.22 shall not be imposed on a person in addition to a gun use enhancement imposed pursuant to section 12022.53, subdivision (e)(1), "unless the person personally used or personally discharged a firearm in the commission of the offense." Thus, a defendant who did not personally use a firearm but who was a principal in an offense in which another principal used a firearm can only receive the 25-to-life enhancement under section 12022.53, subdivision (e)(1), not the pertinent gang enhancement. (People v. Salas , supra, 89 Cal.App.4th at pp. 1281-1282.)
Barreto contends, and we agree, that the jury did not find that he personally used a firearm as required under section 12022.53, subdivision (e)(1). Therefore, the trial court incorrectly imposed both the criminal street gang enhancement and the gun use enhancement on all four counts. The criminal street gang enhancements must be stricken.
Under section 12022.53, subdivision (e)(2), set out above, a defendants sentence may not be enhanced under both the criminal street gang provision, in this case section 186.22, and under section 12022.53, subdivision (e), the gun use enhancement, "unless the person personally used or personally discharged a firearm in the commission of the offense." ( § 12022.53, subd. (e)(2).) The information alleged and the jury instructions and verdict forms asked the jury to find that a principal personally and intentionally discharged a firearm which proximately caused the death of Jesus Martinez and great bodily injury to the three victims alleged in the attempted murder counts. Barreto argues that given the allegations, instructions, and verdict forms, the jury did not make the required finding that he personally used or discharged a firearm.
The Attorney General concedes the pertinent legal principle, namely that the firearm use enhancement and the criminal street gang enhancement cannot both be imposed unless the defendant personally used or discharged a firearm. As explained in People v. Salas, supra, 89 Cal.App.4th 1275, "Section 12022.53, subdivision (e)(1) extends potential liability under the firearm enhancement when the accused, in a gang case, does not personally use the weapon." (Id. at p. 1281) The section creates an exception to the personal use requirement but "as a consequence of this expanded liability under section 12022.53, subdivision (e), the Legislature has determined to preclude the imposition of an additional enhancement under section 186.22 in a gang case unless the accused personally used the firearm." (Id. at pp. 1281-1282.)
Because the Attorney General concedes the legal principle the issue we must resolve is whether the jury necessarily made the required finding that Barreto personally used a firearm. The Attorney General argues that the information, jury instructions, and verdict forms, viewed collectively, are sufficient to support a personal use finding. We cannot agree.
According to the record, recounted above, all allegations regarding the gun use enhancement at issue in this case pertain to a principal personally using and discharging the weapon. Specifically, the second amended information alleged as to the murder charged in count 1 and the attempted murders charged in counts 2, 3, and 4, as to "both defendants, that a principal personally and intentionally discharged a firearm, a handgun, . . . . [Emphasis added.]"
In instructing the jury in connection with the gun use enhancement the trial court used language identical to that contained in the information and further stated that, "To prove this allegation pursuant to 12022.53 (d) and (e)(1) the prosecution must prove the truth of the allegation pursuant to § [sic] 186.22(b)(1) and that a principal or co-principal [sic] in Counts One, Two, Three and Four personally and intentionally discharged a firearm that inflicted great bodily injury or death upon the victims Jesus Martinez [the murder victim], Natalie Molina, Angela Alvarado and Keith Caldwell [the attempted murder victims]. [P] Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [P] 1. Those who directly and actively commit or attempt to commit the act constituting the crime, or [P] 2. Those who aid and abet the commission or attempted commission] [sic] of the crime. [P] Penal Code Section 12022.53(d) and (e) firearm use includes all principals involved in the commission in [sic] the crime whether they personally fired the firearm that inflicted great bodily injury or death or were an aider and abettor in the crime that was committed. [Emphasis added.]"
The verdict form likewise asked the jury to find true or false the allegation that "as to said defendant [Barreto], that a principal personally and intentionally discharged a firearm, to wit: a handgun . . . . [Emphasis added.]"
The circumstances of this case are identical to those of People v. Salas, supra, in which the court reversed the gang enhancement because the jury did not find that the defendant had personally used a firearm. The trial court instructed the jury in Salas that the gun use enhancement required them to find only that a principal had used a firearm. (People v. Salas, supra, 89 Cal.App.4th at p. 1279.) The jurys finding on the gun use allegation was that "in the commission and attempted commission of the above offense that a principal personally and intentionally discharged a firearm, to wit: a handgun . . . within the meaning of Penal Code section 12022.53[, subdivision] (d) and (e)(1) . . . ." (Ibid .)
In Salas, the gang enhancement consisted of the 15-year minimum parole eligibility specified in section 186.22, subdivision (b)(5). (People v. Salas, supra, 89 Cal.App.4th at p. 1277.)
The Attorney General attempts to distinguish People v. Salas by noting that unlike Salas, the verdict forms in this case identified the defendant by name. According to the Attorney General, the result is that the jury in this case effectively found that "each appellant, a principal, personally and intentionally discharged a firearm." We are not persuaded. The wording of the verdict forms in this case is identical to that used in Salas. The defendants are identified by name only because, unlike Salas, this trial involved two defendants and therefore the jury had to return separate verdicts and true findings as to each of them.
This case is distinguishable from Salas only by the fact that in making the finding that a principal personally used a firearm, the jury in this case must have found that one of the defendants did so because there were only two possible shooters. In Salas, there were other possible shooters but none of them had been apprehended and charged. Because either Amezcua or Barreto had to have personally discharged a firearm causing death or great bodily injury in order for the jury to find that a principle personally did so, the gang enhancement arguably is valid as to one of the defendants. We, however, are not at liberty to make the factual determination of which defendant personally used or discharged the firearm since that is exclusively a jury function. Therefore, we must reverse the gang enhancement as to Barreto.
The Attorney General cites People v. Sengpadychith (2001) 26 Cal.4th 316 and urges us to conclude that the jurys failure to make the required factual finding was harmless beyond a reasonable doubt in this case. The issue in Sengpadychith was "what standard of harmless error governs a trial courts failure to instruct the jury on the requisite primary activities of the group [element of a criminal street gang allegation.]" (Id . at p. 320.) The issue here is not whether the trial court failed to instruct on an element of an enhancement. Instead, the issue is whether the trial court instructed on the correct enhancement such that the jury, in turn, made the correct true finding. Because it only concerns failure to instruct on an element of the enhancement, Sengpadychith is irrelevant.
In summary, we conclude that the jury in this case did not make the required finding that Barreto personally used or discharged a firearm causing death or great bodily injury and therefore we must strike the gang enhancements imposed on each of the counts.
Because we conclude the trial court incorrectly imposed both gang and gun use enhancements in this case and will strike the gang enhancements, we will not address Barretos remaining challenges to the gang enhancements.
B. Gun Use Enhancement
The remaining sentencing issue we must address is Barretos challenge to the 25-year-to-life gun use enhancement the trial court imposed on his murder conviction. Barreto raises two claims. First, he argues that because death is an element of that enhancement and also an element of the crime of murder, the gun use merges with the crime and cannot be separately punished. In addition, he claims that at the very least the gun use enhancement must be stayed under section 654. We disagree with both claims.
i. Merger
The Supreme Court articulated the so-called merger doctrine in People v. Ireland (1969) 70 Cal.2d 522, 75 Cal. Rptr. 188, 450 P.2d 580, when the court held that second degree felony murder may not be predicated on a felony, such as assault with a deadly weapon, that is an integral part of the crime. (Id . at p. 539.) To conclude otherwise would effectively eliminate malice aforethought as an element of such second degree murders, which in the courts view are the majority of homicides. (Ibid.)
The merger doctrine has not been extended to crimes other than assault-type offenses. (See People v. Hansen (1994) 9 Cal.4th 300, 312, 885 P.2d 1022, in which the court declined to extend the merger doctrine to the crime of discharging a firearm at an inhabited dwelling.) Nor has the doctrine been applied to sentence enhancements that are based in part on an element of the underlying crime. Simply put, the merger doctrine is pertinent only in the context of second degree felony murder and applies only to a limited number of crimes that involve assaultive behavior. Accordingly, we conclude that the merger doctrine does not apply to the gun use enhancement and we therefore reject Barretos contrary claim.
ii. Section 654
We also must reject Barretos claim that execution of the sentence imposed in connection with the gun use enhancement must be stayed under section 654 which states, in pertinent part, that "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. . . ."
The issue Barreto raises in this appeal was addressed and rejected in People v. Hutchins (2001) 90 Cal.App.4th 1308 and we can do no better than to quote that opinion here. "The plain language of the statute at issue in this case, section 12022.53, mandates imposition of the additional enhancement sentence. Thus, the statute clearly and unambiguously states that [n]otwithstanding any other provision of law, any person who is convicted of [various felonies, including murder] and who in the commission of that felony intentionally and personally discharged a firearm and proximately caused great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by a term of imprisonment of 25 years to life in the state prison, which shall be imposed in addition and consecutive to the punishment prescribed for that felony. [Citation.] Elsewhere, the same statute specifically provides that [n]otwithstanding any other provision of law, a trial court shall not suspend execution or imposition of sentence for any person found to come within the provisions of this enhancement statute, or strike any allegation or finding that brings a person within the provisions of this section. [Citation.]" (People v. Hutchins, supra, 90 Cal.App.4th at p. 1313, original emphasis, fns. omitted.)
"Clearly, in enacting this provision the Legislature intended to mandate the imposition of substantially increased penalties where one of a number of crimes, including homicide, was committed by the use of a firearm. In so doing, the express language of the statute indicates the Legislatures intent that section 654 not apply to suspend or stay execution or imposition of such enhanced penalties. Nor should section 654 logically apply in such a situation. The manner in which any crime is accomplished may vary in innumerable respects. Thus, second degree murder may be committed in a myriad of ways, some that involve use of a firearm, and others, such as stabbing, poisoning, or strangling, that do not involve use of this type of weapon. [Citation.] Section 654 is not implicated by the imposition of a sentencing enhancement on a particular manner of committing murder — with the use of a firearm — adjudged by society through its legislative representatives as particularly egregious and dangerous. What the Legislature has done by enacting section 12022.53 is not to punish the same single criminal act more than once or in more than one way. Instead, in determining that a criminal offender may receive additional punishment for any single crime committed with a firearm, the Legislature has chosen to enhance or expand the punishment imposed on a single underlying crime, where committed by use of a firearm, in order to deter a particular form of violence judged especially threatening to the social fabric." (People v. Hutchins, supra, 90 Cal.App.4th at pp. 1313-1314, original emphasis.)
We agree with the reasoning in Hutchins and therefore reject Barretos section 654 claim.
Barreto points out that the Supreme Court interpreted a similar phrase, "notwithstanding any other law," in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628 as not limiting a trial courts authority under section 1385 to strike a prior conviction for purposes of sentencing under the three strikes law. Barreto argues we should give the same expansive interpretation to the phrase used in section 12022.53. Although the Romero court did reach that conclusion, it did so because the context in which the phrase is used in the three strikes law revealed the Legislatures intent that the three strikes legislation "takes the place of whatever law would otherwise determine defendants sentence for the current offense" and was not intended to limit a courts discretion under section 1385. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 523-524.) In other words, and contrary to Barretos view, the court did not hold that the quoted phrase must always be interpreted in a particular manner and instead held that the meaning of the phrase depends on the context in which it is used by the Legislature.
DISPOSITION
The judgment is reversed as to defendant Amezcua and the case remanded to the trial court. The Penal Code section 186.22 criminal street gang enhancements imposed on counts 1, 2, 3, and 4, are stricken as to defendant Barreto and his sentence is modified, accordingly. As modified, the judgment is affirmed in all other respects as to defendant Barreto. The trial court is directed to prepare and forward to the appropriate agencies an amended abstract of judgment that reflects defendant Barretos modified sentence.
We concur: Ward J., and Gaut J.