Opinion
D026393 (Super. Ct. No. SCN020319)
Filed March 9, 1998
APPEAL from judgments of the Superior Court of San Diego County, Franklin J. Mitchell, Jr., Judge. Affirmed as amended.
J. Thomas Bowden and Shawn O'Laughlin for Defendants and Appellants.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Laura Whitcomb Halgren and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
In this case we conclude there exists a crime of conspiracy to commit express malice second degree murder.
Defendants and appellants Angel Manuel Armigo and Hector Salsa Avila were found guilty of conspiracy to commit second degree murder. Armigo was found guilty of attempted second degree murder, Avila of being an accessory to attempted murder. It was found true Armigo used a deadly weapon within the meaning of Penal Code section 12022, subdivision (b). In counts arising from a separate incident, Avila was found guilty of possession of a firearm by one also possessing a controlled substance, possession of a controlled substance for sale, possession of a controlled substance and resisting arrest. It was also found true Avila was, with regard to the possession for sale offense, armed with a firearm within the meaning of section 12022, subdivision (c).
All further statutory references are to the Penal Code.
I
FACTS
A. Prosecution Case
1. March 2, 1995
On March 2, 1995, at about 2:30 a.m., Rodney Gay and his friends Nelson Quiles and Omar Johnson were making a purchase at a Seven-Eleven convenience store in Oceanside. The three men are black. Quiles was a member of the Deep Valley Crips, a local gang; Johnson was associated with the gang. While they were in the store, Armigo entered, asked for a "squeezy," and was told by a clerk the store did not have one. Before leaving, Armigo and Quiles "mad dogged" each other, i.e., stared at each other in a threatening manner.
Armigo went outside to a Honda parked at the store's gas pumps where Avila and another Hispanic man were standing. Armigo and Avila were documented members of Mesa Loco, a local Hispanic gang. The three conferred for a short time. As they did so, Gay and his companions walked out of the store. Armigo, Avila and the third man walked toward them. One of the Hispanic men yelled: "Hey, where you all from." Avila called out: "Fuck Crips. Fuck Crips. Fuck Deep Valley," and "Fuck D.V.C., D.V.C. Killer." Avila transferred a handgun from one pocket to another. Armigo opened a folding knife. Gay and his companions ran.
As Armigo and the third Hispanic man chased Gay, Avila returned to the car, got in and followed. When Armigo and the third man caught up to Gay, Armigo stabbed him repeatedly, shouting: "Fuck D.V.C. This is my turf. Fuck D.V.C." As Gay was being stabbed, Avila arrived in the car. Avila yelled: "Come on. Fuck that mother. Fuck him. Come on. Let's go. Let's go." When an onlooker yelled the police were coming, Armigo and his companion got into the car and departed. Gay suffered 16 stab wounds but survived.
The Mesa Loco gang fights black gangs over race and turf. The Seven-Eleven where the two groups met is territory disputed by the Mesa Locos and Crips. Violence can occur between gang members merely because they cross paths and no specific precipitating event or motivation is required.
2. March 29, 1995
On March 29, 1995, at approximately 11:20 a.m., Avila was seen by deputy sheriffs walking down the middle of a street in San Marcos. After being stopped, Avila ran but was eventually apprehended after a lengthy chase. A loaded handgun was found in his jacket, a baggie containing 23.4 grams of methamphetamine was found in his pocket as well $322 in various denominations.
B. Defense
1. Armigo
Armigo presented evidence that he was not a gang member and was at home at the time of the assault on Gay.
2. Avila
After his arrest, Avila admitted being at the Seven-Eleven store in his Honda the night of the stabbing but denied any involvement in the crime.
II
DISCUSSION
A. Conspiracy to Commit Second Degree Murder
In People v. Swain (1996) 12 Cal.4th 593, the court held there is no crime of conspiracy to commit implied malice second degree murder. Citing Swain, appellants argue they could not be convicted of conspiracy to commit second degree express malice murder since that crime does not exist.
The trial court instructed the jury it could return a verdict of either conspiracy to commit second degree murder, based on express malice, i.e., the intent to kill, or conspiracy to commit first degree, deliberate and premeditated, murder. Both appellants were found guilty of conspiracy to commit second degree murder. We conclude the jury was properly instructed.
We note after Swain, two Courts of Appeal concluded there is no crime of conspiracy to commit second degree murder. Review has been granted in both cases. ( People v. Santibanez, review granted Jan. 22, 1997, S057248; People v. Cortez, review granted in part Oct. 16, 1996, S055733.)
1. Background
a. Swain Majority Opinion
The issue of whether there exists a crime of conspiracy to commit second degree murder was framed, but not decided, in People v. Swain, supra, 12 Cal.4th 593. The issue in Swain was whether a conspiracy to commit murder could exist when the required finding of malice aforethought was based not on express malice, i.e., the intent to kill, but on implied malice, i.e., a killing resulting from an intentional act dangerous to human life done with knowledge of the danger to, and with conscious disregard for, human life. ( Id. at pp. 600-602.) The court concluded no such specie of conspiracy exists.
A conspiracy exists when two or more persons agree to commit any crime and there is an overt act in furtherance of that agreement. (§ 182.) A conspiracy requires two specific intents: first, the intent to agree; and, second, the intend to commit the target offense. ( People v. Swain, supra, 12 Cal.4th at pp. 599-600.)
The court concluded the intent requirement of conspiracy and the nature of implied malice murder are in fundamental conflict. While a killing is the core of the corpus delicti of murder, implied malice murder requires no intent to kill. It would be illogical, therefore, to convict a party of conspiracy to commit implied malice murder since by definition there was never an agreement to kill. ( People v. Swain, supra, 12 Cal. 4th at pp. 602-603.)
Having so decided, the court discussed at length but left unanswered whether there exists a crime of conspiracy to commit second degree express malice murder. ( People v. Swain, supra, 12 Cal.4th at pp. 608-610.)
The court traced the problem to its 1940 opinion in People v. Kynette (1940) 15 Cal.2d 731, where it stated: "[A] conspiracy to commit murder can only be a conspiracy to commit murder of the first degree for the obvious reason that the agreement to murder necessarily involves the 'willful, deliberate and premeditated' intention to kill a human being." ( Id. at p. 745.)
Interestingly, the court made this statement in the context of a discussion of whether the trial court properly excluded prospective jurors based on their conscientious objections to the death penalty, a punishment that in 1940 could be imposed for conviction of conspiracy to commit first degree murder. ( People v. Kynette, supra, 15 Cal.2d at pp. 744-745.)
At the time of Kynette, section 182 stated a criminal conspiracy was "punishable in the same manner and to the same extent as in this code provided for the punishment of the commission of the said felony or act, respectively."
In 1955 the Legislature amended the punishment provisions of section 182. While retaining the basic concept that a criminal conspiracy is punished in the same manner as the target offense, the Legislature added the following: "If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit such felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree." (Stats. 1955, § l, ch. 660, p. 1155.)
In 1974 the Court in People v. Horn (1974) 12 Cal.3d 290, disapproved Kynette. ( Id. at p. 301, fn. 8.) In Horn the defendants were convicted of conspiracy to commit first degree murder. The issue was whether the trial court erred in refusing to instruct concerning the lesser included offense of conspiracy to commit voluntary manslaughter. The requested instruction was based on evidence suggesting that at the time of their agreement, the defendants' mental capacity was diminished. ( Id. at p. 293.)
Horn was decided at a time when the concept of diminished capacity was in full flower. The court noted that conspiracy is a specific intent crime which requires the defendant harbor not only the intent to agree but the intent or mental state required for the target offense. The court essentially held, over the dissent of Justices Mosk and McComb, that in determining the target offense agreed upon, and, thus, ultimately the punishment to be imposed, the trier of fact could consider the capacity of the conspirators to harbor the intent or mental state of the alleged target offense. If that capacity was absent, the conspirators could be found guilty of a conspiracy to commit a lesser degree of or a lesser offense of the target crime. ( People v. Horn, supra, 12 Cal.3d at pp. 295-299.)
In a footnote the court added that Kynette's pronouncement that a conspiracy to commit murder is necessarily murder in the first degree was inconsistent with the later added language of section 182 requiring the trier of fact to determine the degree of the target offense. The court stated the language "plainly" authorized the trier of fact to return a verdict finding conspiracy to commit murder in the second degree. It noted the section states it is only when the trier of fact fails to return a verdict on degree that a conspiracy to commit murder must be punished as one to commit murder in the first degree. ( People v. Horn, supra, 12 Cal. 3d at p. 298, fn. 5.)
Swain noted that after Horn the defense of diminished capacity was abolished. ( People v. Swain, supra, 12 Cal.4th at p. 608.) With particular relevance to the issue of the existence of a crime of conspiracy to commit express malice second degree murder, the court noted Horn distinguished its legal setting from that in Kynette, by observing that the element of deliberation and premeditation had changed. While the court in Kynette might state that the agreement to murder necessarily involves deliberation and premeditation, the court in Horn could not since the existing definition of deliberation and premeditation required the defendant maturely and meaningfully reflect upon the gravity of his or her act. (See People v. Horn, supra, 12 Cal.3d at p. 298.) Swain noted that after Horn, section 189 was amended to specifically exclude as an element of premeditation and deliberation that the defendant maturely and meaningfully reflected on the gravity of his or her act (stats. 1981, ch. 404, § 7, p. 1593). ( People v. Swain, supra, 12 Cal.4th at p. 608.)
Swain stated that with the various changes in the law concerning diminished capacity after the decision in Horn, it was arguable that Kynette's conclusion that the act of agreeing to murder was the functional equivalent of deliberation and premeditation was again viable. ( People v. Swain, supra, 12 Cal.4th at p. 608.)
The court also discussed whether Horn misinterpreted the Legislature's ambiguous 1955 amendment to the punishment provisions of section 182. The court noted it is possible those punishment provisions merely codify Kynette's conclusion that any conspiracy to commit murder is necessarily a conspiracy to commit murder in the first degree. Swain notes it seems odd that the Legislature would require, when the trier of fact failed to find the degree of a target offense, that the punishment imposed for the conspiracy would be for the lesser degree as to all felonies except murder. Still, Swain notes section 182 appears to accept the existence of a crime of conspiracy to commit second degree murder. The court noted in any case the subject language in Horn was dictum. ( People v. Swain, supra, 12 Cal.4th at pp. 609-610.)
It was unnecessary in Swain to determine whether there exists a crime of conspiracy to commit second degree murder and the court left resolution of that issue for another day.
b. Justice Mosk's Concurring Opinion
Justice Mosk, joined by Justice Arabian, concurred in the court's conclusion there was no crime of conspiracy to commit implied malice murder but believed the court should go further and declare there was also no crime of conspiracy to commit second degree express malice murder.
Justice Mosk expresses the opinion that while strictly speaking the crime of conspiracy to commit murder does not require deliberation and premeditation, as a practical matter, such state of mind always exists in a conspiracy to commit murder since the intent required for a conspiracy cannot arise suddenly but must be formed and then shared by at least two persons. ( People v. Swain, supra, 12 Cal.4th at pp. 611-613 (conc. opn. of Mosk, J.).)
For Justice Mosk what force remains in Horn is in its footnote interpreting the punishment provisions of section 182 as a declaration of the existence of a crime of conspiracy to commit second degree murder. That interpretation of the section, however, led, in Justice Mosk's mind, to unacceptable results since it is at odds with the general rule stated in section 182, as well as sections 1157 and 1192, that if the degree of an offense is not stated, it is presumed to be the lesser. ( People v. Swain, supra, 12 Cal.4th at pp. 613-615 (conc. opn. of Mosk, J.) .)
Justice Mosk also notes that as a historical matter it is unlikely the Legislature would state that a crime of conspiracy to commit second degree murder exists when 15 years before Kynette held it did not. Further, Justice Mosk notes that in 1955 a defendant could be sentenced to death for the crime of conspiracy to commit murder. He concludes it is unlikely the Legislature would expose a person, who might have conspired only to commit a second degree murder, to that penalty solely because the trier of fact could not or did not determine the degree of the "conspired" murder. ( People v. Swain, supra, 12 Cal.4th at p. 617 (conc. opn. of Mosk, J.).)
Justice Mosk accomplishes his interpretation of section 182 by adding to the section the following italicized words: "'If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit, except in the case of murder. If the degree is not so determined, the punishment for conspiracy to commit such felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.'" ( People v. Swain, supra, 12 Cal.4th at p. 617.)
Justice Mosk concluded Horn should be overruled and Kynette followed.
c. Justice Kennard's Concurring Opinion
While agreeing with the majority that there is no crime of conspiracy to commit implied malice murder, Justice Kennard concluded there is a crime of conspiracy to commit second degree express malice murder.
In reviewing the history of the issue, Justice Kennard agrees with the rest of the court that Horn's analysis based on concepts of diminished capacity was no longer applicable. She concludes, however, the Horn court correctly interpreted the 1955 changes to the punishment provisions of section 182. ( People v. Swain, supra, 12 Cal.4th at pp. 623-624 (conc. opn. of Kennard, J.).)
Justice Kennard states: "The degree of the murder conspiracy depends on whether the conspirators' agreement evidences a willful, deliberate, premeditated intent to kill of the type that distinguishes first degree murder or instead reflects only a bare intent to kill lacking in premeditation and deliberation." ( People v. Swain, supra, 12 Cal.4th at p. 624, fn. omitted (conc. opn. of Kennard, J.).)
Justice Kennard interprets Justice Mosk's position to be that the crime of conspiracy to commit murder is a unitary one which is complete when two or more persons join together in a common endeavor to kill unlawfully. So interpreted, she notes it is of no consequence with regard to punishment that one set of conspirators premeditated and deliberated their intent while another did not. Justice Kennard notes such a position leads to a series of unacceptable consequences; for example, that conspirators who agree to kill without deliberation and premeditation but fail to accomplish their object are subject to a greater punishment than if they accomplished their intent and committed a second degree murder. ( People v. Swain, supra, 12 Cal.4th at pp. 625-628 (conc. opn. of Kennard, J.).)
Justice Kennard concluded a crime exists of conspiracy to commit second degree murder.
2. Discussion
We agree with Justice Kennard.
We observe that courts and commentators have been less than complimentary about the crime of conspiracy. "The criticism which commentators have voiced most often and most strongly is that there is an inherent vagueness in the crime of conspiracy. . . . And Justice Jackson, in his oft-quoted concurring opinion in Krulewitch v. United States, referred to conspiracy as an 'elastic, sprawling and pervasive offense, . . . so vague that it almost defies definition [and also] chameleon-like [because it] takes on a special coloration from each of the many independent offenses on which it may be overlaid.'" (Vol. 2, LaFave and Scott, Substantive Criminal Law, § 6.4, p. 64, fn. omitted.) Commentators have noted: "[T]he vagueness stems from . . . the uncertainty over what is sufficient to constitute the agreement and what attendant mental state must be shown." ( Ibid., fn. omitted.)
While there is much that is unclear in section 182, the punishment provisions of the section make clear the Legislature means to treat the crime of conspiracy as one having gradations of seriousness depending on the seriousness of the target offense. The gradations the section recognizes are not simply between crimes but between degrees of crimes. If it is logically and psychologically possible to agree to commit murder without the conspirators premeditating and deliberating the required intent to kill, i.e., there does exist a distinct crime of conspiracy to commit express malice second degree murder, then section 182 would be illogical and internally inconsistent if it required all conspiracies to commit murder be punished as conspiracies to commit murder in the first degree. The Legislature would not intend such a result.
The crucial question is whether it is possible to agree to kill without premeditating or deliberating. We conclude it is possible.
In the words of CALJIC No. 8.20, premeditated means "considered beforehand" and deliberate means "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action." (See People v. Velasquez (1980) 26 Cal.3d 425, 435; People v. Thomas (1945) 25 Cal.2d 880, 898-899.)
We conclude that while an agreed course of action is necessarily premeditated, it is not necessarily deliberated. Rash persons can enter into rash agreements to do rash things. Two brothers deeply emotionally offended on seeing an affront to their mother can, in an instant, agree to kill the affrontor. In so doing, they enter into a conspiracy to kill that may, because of a lack of careful thought or a failure to weigh the consideration for or against the agreed upon action, not be deliberate and not be a conspiracy to commit murder in the first degree.
While we agree that most conspiracies to commit murder involve deliberation and premeditation, it is simply not the case that all do. We, therefore, deliberately and premeditatedly move to Justice Kennard's side of the room and join her in concluding there exists a crime of conspiracy to commit express malice second degree murder.
We readily concede that concluding there exists a crime of conspiracy to commit second degree murder makes for the anomalous result that under section 182 if a trier of fact in a murder conspiracy case fails to return a finding of degree, the punishment for the conspiracy is set, not at that for second degree murder, but for first degree murder. We find this possibility no less distressing, however, than a requirement that every conspiracy to commit murder, whatever the state of mind of the conspirators, and whatever the degree of the completed homicide, be punished as a conspiracy to commit first degree murder.
It is unnecessary we address in this opinion the anomaly of requiring all conspiracies to commit murder be punished as conspiracy to commit first degree murder when the trier of fact fails to make a finding of degree and we express no position on the legality of such a rule.
B. Sufficiency of Evidence
Appellants argue there was insufficient evidence to prove they agreed to commit murder and, therefore, insufficient evidence to support the conspiracy verdicts.
In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. ( People v. Brown (1995) 35 Cal.App.4th 1585, 1598.)
"The intent to agree to commit a crime, which is the essential element of conspiracy, may be, and from the secrecy of the crime usually must be, established by circumstantial evidence. [Citation.] Thus, it is not necessary for the prosecution to prove the alleged conspirators made an express or formal agreement or that they ever met. [Citation.] It is necessary, however, for the prosecution to establish that the facts which are known prove beyond a reasonable doubt the existence of an agreement to commit the underlying crime." ( People v. Austin (1994) 23 Cal.App.4th 1596, 1606-1607.)
The events of March 2, 1995, ended with a savage knife attack on Rodney Gay. A trier of fact could reasonably conclude that attack was carried out with the intent to kill. While the evidence showed only Armigo actually stabbed Gay, it reasonably showed that the attack was part of a collective effort by Armigo, Avila and their unnamed companion. The evidence indicated the confrontation between appellants and Gay and his acquaintances was part of an ongoing gang rivalry, the confrontation was tinged with gang references and indications that the attack was based on that rivalry. While appellants may have had only seconds to do so, it was reasonable for the jury to conclude, given the background of the confrontation and its homicidal end, that appellants' attack on Gay was the result of an agreement between them to kill a rival gang member. The evidence supporting appellants' conviction of conspiracy to commit murder was sufficient.
C. Severance
Armigo argues the trial court abused its discretion when it denied his motion to sever his trial on the conspiracy and murder charges arising from the events of March 2, 1995, from Avila's trial for the weapon possession, drug possession and resisting arrest charges arising from the events of March 29, 1995.
1. Background
Armigo, while conceding it proper to try Avila and him together on the conspiracy and attempted murder charges, argued there was no basis for and it was highly prejudicial to include in that trial the charges against Avila arising from the events of March 29, 1995. The prosecutor argued the events of March 2 and March 29 were connected since there was evidence Avila displayed a "stainless steel" handgun on March 2 and was found in possession of such a gun on March 29.
At the beginning of testimony concerning counts three through six, the court admonished the jury the evidence was being offered against Avila and not against Armigo. The court reiterated that instruction at the end of trial.
2. Discussion
Defendants must be tried together when they are jointly charged with the same offense unless the court orders separate trials. (§ 1098.) When defendants are so jointly charged, additional charges against one but not another of the co-defendants can be joined as long as those additional charges meet the joinder of charges requirements of section 954 and do no prejudice to the defendant or his co-defendants. ( People v. Pike (1962) 58 Cal.2d 70, 85; People v. Spates (1959) 53 Cal.2d 33, 36; Vol. II, Cal. Criminal Defense Practice, § 52.20[2].)
Section 954 allows a joinder of counts when the different offenses are connected together in their commission. Such joinder is proper if there is a common element of substantial importance in the commission of the offenses. ( People v. Pike, supra, 58 Cal.2d at p. 85; People v. Spates, supra, 53 Cal.2d at p. 36; Vol. II, Cal. Criminal Defense Practice, § 52.20[2].)
"An appellate court reviews a trial court's ruling on a motion to sever for abuse of discretion." ( People v. Alvarez (1996) 14 Cal.4th 155, 187.)
There was a common element between the charges of conspiracy and attempted murder and the offenses charged against Avila arising from the events of March 29, 1995. In each there was evidence Avila was in possession of a silver handgun. Such evidence was relevant in supporting the prosecution's position that Avila was involved in the assault on Rodney Gay and that he displayed a handgun during that confrontation. (See People v. Pike, supra, 58 Cal.2d at pp. 84-85.)
We conclude Armigo would suffer minimal prejudice from the joinder of the additional charges against Avila. Armigo's defense was alibi, he was at home at the time of the stabbing. Armigo could logically suffer no prejudice from any association with Avila until the jury concluded they were associated. If the jury rejected Armigo's defense and believed he was present at the Seven-Eleven store, then his position was so tenuous that any evidence of association with Avila and any evidence concerning Avila's criminal predilections would be of little meaning.
We also note that any prejudice arising from the events of March 29, 1995, would presumably have affected Avila more than Armigo. The jury, while finding Avila guilty of conspiracy to commit second degree murder, found him guilty only of being an accessory to attempted murder. It does not appear the fact of Avila's behavior had any great affect on the jury.
The trial court did not abuse its discretion in denying Armigo's motion to sever.
D. Identification Evidence
Armigo argues the eyewitness identifications of him by victim Gay and witnesses Johnson and Oakley were the result of an unduly suggestive identification process and the trial court erred in refusing to exclude them. Armigo also argues there was insufficient evidence he was involved in the attack on Gay.
1. Due Process
a. Identification Process
Armigo made an in limine motion to exclude the eyewitness identification of him by Gay. That motion did not seek the exclusion of any other eyewitness identification.
At the hearing on the motion to exclude Gay's identification of Armigo, Detective Anderson testified that on March 2, 1995, he showed Gay a photo line-up containing a picture of Armigo. Gay was unable to identify anyone in that line-up. Gay was shown another photo line-up containing a picture of Avila. Gay identified Avila as one of the men involved in the attack.
On May 2, 1995, Gay and the detective were sitting in a courtroom awaiting the start of the preliminary hearing. It was necessary to continue the hearing, and Armigo and Avila, dressed in jail garb and handcuffed together, were brought into the courtroom to waive time. The detective testified that before the preliminary hearing was to start, all witnesses were excluded from the courtroom. When it was determined a continuance would be necessary, the court had the witnesses brought into courtroom so they could be ordered to return. Since the defendants would also be in the courtroom, the detective asked the prosecutor if it was all right for the witnesses to be present. The prosecutor retorted the defendants' attorneys felt it was okay for the witnesses to be there.
The detective did not sit with Gay and did nothing to indicate he expected him to make an identification. After the proceeding, the officer asked Gay if he recognized anyone in court. Gay stated he recognized both Avila and Armigo. He stated Armigo was one of the men who chased him the night he was stabbed.
The trial court refused to exclude Gay's identification of Armigo made following his view of the defendants in court on May 2, 1995.
b. Law
"A pretrial identification procedure violates a defendant's due process rights if it is so impermissibly suggestive that it creates a very substantial likelihood of irreparable misidentification. The defendant bears the burden of proving unfairness as a 'demonstrable reality,' not just speculation. [Citations.]" ( People v. Contreras (1993) 17 Cal.App.4th 813, 819.) The determination of whether an identification procedure is impermissibly suggestive is based on the totality of the circumstances. "Generally, a pretrial procedure will only be deemed unfair if it suggests in advance of a witness's identification the identity of the person suspected by the police." ( People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.)
As a general matter, in-court identification procedures, while perhaps suggestive, do not deny due process even when not proceeded by a line-up. Neither is it of consequence that the witness was unable to identify the defendant at a line-up held before the in-court identification. It is simply a fact of our trial system that at a preliminary hearing or at trial, eyewitnesses can be asked if they recognize in the courtroom any person who participated in the events they describe. If a defendant believes a line-up is necessary before trial to lessen the dangers inherent in a courtroom identification, he can ask for one. (§ 1043; People v. Rodrigues (1994) 8 Cal.4th 1060, 1155; People v. Contreras, supra, 17 Cal.App.4th 813, 822; People v. Yonko (1987) 196 Cal.App.3d 1005, 1009; People v. Green (1979) 95 Cal.App.3d 991, 1003-1004; People v. Breckenridge (1975) 52 Cal.App.3d 913, 935-936.)
"Nothing herein shall limit the right of the court to order the defendant to be personally present at the trial for purposes of identification unless counsel stipulate to the issue of identity."
c. Discussion
We agree with the Attorney General that Armigo's motion in the trial court sought only the exclusion of the identification made by Gay and that he cannot now argue the identifications made by witnesses Oakley and Johnson denied him due process. ( People v. Wash (1993) 6 Cal.4th 215, 244.)
In his reply brief Armigo argues if the due process issue as to the identifications made by Oakley and Johnson is waived, it was the result of ineffective counsel and the issue should be reviewed in that context. The record on appeal is insufficient to address the matter of counsel's effectiveness.
There was no denial of due process in Gay's view of Armigo at the time of the continuance of the preliminary hearing. Armigo and Avila, their attorneys and the witnesses were apparently called into the courtroom without objection so the magistrate could economically seek the waivers and make the orders necessary to continue the hearing. While Gay's view of appellant in jail garb and handcuffed to Avila did not occur in the manner a witness would normally see a defendant, it was not substantially different than the view Gay would have of Armigo had the hearing not been continued and had he testified. We do not think the difference requires we treat this case differently than others cases where no due process violation was found in in-court identifications.
2. Sufficiency of Evidence
Armigo argues the evidence was insufficient to prove he participated in the attack on Gay. Specifically, he argues the evidence of his participation in the crime was unreliable and as a matter of law could not support a verdict against him.
Kevin Oakley, the son of the owner of the Seven-Eleven store, was working at the store the night of the stabbing and identified Armigo as the man who entered, then walked out to a car parked at the pumps, then chased Gay. Oakley was shown a photo line-up containing a picture of Armigo but did not select him. On cross-examination Oakley stated he identified Armigo at the preliminary hearing when Armigo was in jail garb. He was not asked about seeing Armigo in the company of Avila at an earlier hearing.
Nelson Quiles, a self-described member of the Crips gang, and who was admittedly in custody at the time of his testimony at trial, identified Armigo as the man who entered the Seven-Eleven store. Quiles picked Armigo's picture from a photo line-up as the man who entered the store.
Franciso Para was working at the Seven-Eleven store the night of the stabbing. He identified Armigo as the man who entered the store and earlier picked his picture from a photo line-up.
Luffert Johnson identified Armigo as one of the men he, Gay and Quiles confronted in the parking lot of the Seven-Eleven store before the stabbing. He did not identify Armigo in the photo line-up.
The evidence was sufficient.
E. 1992 Arrest and Questioning
A gang expert testified Armigo was a member of the Mesa Loco gang based in part on his admission, made after his arrest in 1992, that he was a member of that gang. Armigo argues the trial court erred in not excluding the admission since it was made after an illegal arrest and without an adequate Miranda admonition.
1. Background
By in limine motion, Armigo moved for the exclusion of his statement in 1992 that he was a Mesa Loco gang member on the ground the statement was the product of an illegal arrest and was taken without a proper Miranda warning.
In a hearing on the motion, Detective Aguigui testified that in May 1992, he was a member of the Oceanside Police gang unit. Aguigui stated the police would target neighborhoods with high gang activity for enforcement of the city's curfew ordinance. He explained the purpose of their enforcement activity was to take gang members off the street so they could not commit or be the victims of crimes and to gain intelligence concerning gang activity. On May 22, 1992, at 10:15, apparently in the evening, he made contact with and detained Armigo because of his youthful appearance. The officer could not remember the exact location of the contact. He did recall it was a public place, either on the street or the sidewalk or in the driveway of a residence. Aguigui asked Armigo his age. When the officer determined Armigo was under 18 years of age, he arrested him for violation of the city curfew and transported him to the police station.
Armigo was read his Miranda rights. He stated he understood his rights but was not asked if he wished to speak to the officer. Aguigui explained the question was not asked since it was not the intention of the officers to interrogate the persons they picked up. The officer asked Armigo how long he claimed to be a Mesa gang member. Armigo stated five years. Armigo had a tattoo that is associated with gang membership.
Gang expert Ruben Sandoval testified at the hearing that Armigo was a documented Mesa Loco gang member based on his 1992 admission and continuous association with other documented gang members.
The trial court found nothing illegal in the officer's contact with or interview of Armigo.
At trial Sandoval noted there are five criteria for determining if an individual is a gang member. Sandoval stated the Department of Justice allowed an individual to be classified a gang member if he met one of the criteria. The Oceanside Police Department would not make such a classification unless the individual satisfied two and often only if he satisfied three of the criteria.
Sandoval identified Avila and Armigo as members of the Mesa Loco gang but did not discuss the criteria each met.
Armigo testified he was not a gang member and denied telling any police officer he was a gang member.
2. Arrest
Cause for arrest exists when the facts known to the officer would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. ( People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1262.)
The City of Oceanside Code section 16.1 states: "No minor under the age of eighteen (18) years shall loiter, idle, wander or stroll or play in or upon the public streets, highways, roads, alleys, parks, playgrounds, . . . or other public grounds, public places and public buildings, places of amusement and entertainment, vacant lots or other unsupervised places between the hours of 10:00 p.m. and daylight immediately following."
Oceanside Code section 16.2 exempts from section 16.1 minors who are accompanied by their parents, are on an emergency errand, are returning home from meetings, entertainment or recreational activities sponsored by educational authorities, or when the minor is about because of a legitimate business, trade or profession.
Insofar as Armigo's argument can be interpreted as an attack on the constitutionality of the ordinance, an argument not made below, we note that in Nunez v. City of San Diego (1997 9th Cir.) 114 F.3d 935, the court declared unconstitutional a San Diego City curfew ordinance identical to Oceanside Code sections 16.1 and 16.2. Until that time, however, no court had declared the Oceanside curfew ordinance, or any like it, unconstitutional. Indeed, in In re Nancy C. (1972) 28 Cal.App.3d 747, 752-758, the court found a curfew ordinance essentially identical to the one in this case constitutional. "An arrest made in good faith reliance on an ordinance (even though) subsequently declared to be unconstitutional is made with probable cause and is valid." [Citation.]" ( In re Hector R. (1984) 152 Cal.App.3d 1146, 1152.)
The arresting officer could not remember if Armigo at the time the officer saw him was standing on the street, the sidewalk or in the driveway of a residence. Armigo argues a driveway is not a "public place" and, therefore, the officer lacked probable cause to arrest him for a curfew violation.
Courts have noted for the purposes of section 647, subdivision (f), making it a crime to be found intoxicated in a public place, that a public place is one common to all, generally open to common use, a place where the public has a right to go and to be, open to the free and unrestricted use of the public, a place where a stranger is able to walk through the outside area of a home to the front door without challenge, and a place where the public has a right to go, not necessarily a place solely for the use of the public, but a place which is merely accessible to the neighboring public. ( People v. Perez (1976) 64 Cal.App.3d 297, 300-301, see also People v. Jimenez (1995) 33 Cal.App.4th 54, 59-60; People v. White (1991) 227 Cal.App.3d 886, 891-893; People v. Olson (1971) 18 Cal.App.3d 592, 598.)
Given the broad protective purposes of curfew ordinances, we conclude the driveway at a residence is a public place for the purposes of Oceanside curfew ordinance.
Armigo argues his arrest for a curfew violation was unlawful since it was merely a pretext for the police to gather information on gangs. There is no merit to the argument since an officer's subjective motivation does not invalidate objectively reasonable and constitutional behavior. ( Whren v. United States (1996) __ U.S. __ [ 135 L.Ed 2d 89].)
3. Miranda Violation
Armigo argues his statement that he was a member of the Mesa Loco gang was taken in violation of his Miranda rights since while he was read his rights before being questioned, he did not waive them.
An advisement and waiver of Miranda rights must precede a custodial interrogation. An interrogation is express questioning or words or actions by the officer that are reasonably likely to elicit an incriminating response. In determining whether an interrogation has occurred, the relationship of any questions to the crime suspected is highly relevant. ( People v. Wader (1993) 5 Cal.4th 610, 637.)
In the present case, Armigo was in custody for a curfew violation. Whether Armigo was a member of a gang was irrelevant to that issue. The officer was not attempting to incriminate Armigo, he was merely seeking intelligence and information concerning gangs and gang membership. There was no interrogation. ( People v. Wader, supra, 5 Cal. 4th at p. 637.)
F. Double Punishment
Armigo was sentenced to a term of imprisonment based on his conviction of conspiracy to commit murder and to a concurrent term for his conviction for attempted murder. Avila was sentenced to a term of imprisonment based on his conviction of conspiracy to commit murder and his conviction for being an accessory to the attempted murder. Both argue their concurrent terms amounted to double punishment and were prohibited by section 654.
Section 654 states an act punishable in different ways by different provisions of the code may be punished under only one such provision. The section, however, applies not only to a single act violating multiple provisions of the code but also to an indivisible course of conduct violating several statutes. Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant. If all the criminal acts were incident to one object, then punishment may be imposed only as to one of the offenses committed. ( People v Beamon (1973) 8 Cal.3d 625, 636-637; People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
We conclude Armigo's act of attempted murder and Avila's act of being an accessory to attempted murder were incident to the same objective as their act of conspiring to commit murder and each could be punished for one of their convictions but not both. Armigo's abstract of judgment is ordered amended to reflect that his term for attempted murder (count two) is stayed and Avila's abstract of judgment is amended to reflect that his term for being an accessory to murder (count two) is stayed.
G. Restitution
Appellants argue the trial court erred in ordering restitution in the amount of $25,507.85 for Gay's hospital bills without determining if Gay paid or intended to pay the bill. The probation report indicated Gay was uninsured and that the restitution request was made by Scripps Hospital. Restitution was ordered to the victim listed in the probation report.
At the time the restitution order was made, Armigo requested a restitution hearing because he had not yet seen the documentation supporting the amount of restitution sought. He stated that once he reviewed the documents, if they appeared in order, the restitution hearing could be taken off calendar. It appears no restitution hearing was held and we must assume counsel reviewed the documentation and concluded it adequate to support the amount of restitution requested.
Appellants' claim the trial court erred in failing to make a finding of economic loss is waived. The issue was not raised below and the trial court was authorized to order restitution for any economic loss incurred. (See People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.)
H. Gang Evidence
Avila argues the trial court erred in admitting evidence of his and Armigo's gang membership. He notes Gay was not a gang member, argues gang animosity could not have been a motivation for the attack and concludes the trial court should have excluded the evidence of gang membership as irrelevant or at least as more prejudicial than probative.
Whether Gay was actually a member of a gang is not the issue. One of Gay's companions was a member of the Crips, the other was associated with that gang. The circumstances of the confrontation between appellants and Gay and his companions clearly indicated a gang motivation. Evidence that Avila and Armigo were members of a rival gang was highly relevant to proving them guilty of the charged offenses.
III
DISPOSITION
Armigo's abstract of judgment is ordered amended to indicate his prison term for attempted murder, count two, is stayed pursuant to section 654. Avila's abstract of judgment is ordered amended pursuant to the same code section to indicate his prison term for being an accessory to murder is stayed. In all other respects, the judgments are affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II Discussion, subparts B, C, D, E, F, G and H.
______________________________ BENKE, J.
WE CONCUR:
_______________________________ KREMER, P.J.
_______________________________ HADEN, J.
Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.