Opinion
G054544
11-28-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE ARTURO HERNANDEZ and URIEL JESUS PALA, Defendants and Appellants.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant Jose Arturo Hernandez. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Uriel Jesus Pala. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Featherman Fraser and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF1719) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed in part; reversed in part and remanded for resentencing. David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant Jose Arturo Hernandez. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Uriel Jesus Pala. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Featherman Fraser and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendants Jose Arturo Hernandez and Uriel Jesus Pala of two counts of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, subd. (a), 187), three counts of assault with a firearm (§ 245, subd. (a)(2)), and one count of battery with serious bodily injury (§ 243, subd. (d)). As to all six counts, the jury found the defendants committed these crimes at the direction of, for the benefit of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)). For the two attempted murder counts, the jury also found the defendants were principals in the commission of those crimes, they committed them for the benefit of a criminal street gang, and during its commission, a principal intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)). The trial court sentenced both defendants to indeterminate terms of seven years to life, plus determinate terms of 29 years.
All statutory references are to the Penal Code.
More specifically, the court imposed indeterminate seven-years-to-life on the first attempted murder conviction, and added a 20-year consecutive determinate term for the vicarious firearm use allegation. The same sentences were imposed for the second attempted murder count, but were ordered to be served concurrently. Although alleged in the information, and found true by the jury, the trial court did not impose section 186.22, subdivision (b), gang enhancements on either attempted murder conviction because that enhancement cannot be imposed when a section 12022.53 enhancement also has been imposed, unless the defendant personally discharged the firearm. (§ 12022.53, subd. (e)(2).) Here, the jury found both defendants used a firearm vicariously. For one of the assault with a firearm convictions, the court imposed consecutive four-year sentences, plus an additional consecutive five years based on the section 186.22, subdivision (b), gang enhancement. Sentences on the other two assault with a firearm convictions and the battery with serious bodily injury conviction were imposed and stayed under section 654.
Hernandez and Pala appeal their convictions and their sentences, both contending:
(1) The trial court prejudicially erred by instructing the jury with CALCRIM No. 601, telling jurors they could convict a defendant of attempted willful, deliberate, and premeditated murder even if he did not personally deliberate and premeditate, so long as one of his cohorts did;
(2) There was insufficient evidence to prove the gang enhancements attached to the substantive counts and the gang-based vicarious firearm use allegations attached to the attempted murder counts;
(3) The trial court erred by sentencing the defendants to seven years to life on the attempted murder counts instead of simply life with the possibility of parole;
(4) The abstracts of judgment must be corrected to eliminate language in the "Other Orders" section regarding defendants' sentences; and
(5) Because of recent developments in the law, we must remand to allow the trial court to exercise its recently established discretion to strike the section 12022.53 vicarious firearm enhancements to the attempted murder convictions.
The Attorney General concedes the trial court erred in imposing a seven-years-to-life, the abstracts of judgment for both defendants must be corrected, and the matter must be remanded under the newly enacted subdivision (h) of section 12022.53. We accept these concessions.
We reject defendants' other contentions. We conclude CALCRIM No. 601 correctly describes the current state of the law, and we are bound by our Supreme Court's holding on the issue. We also find substantial evidence supports the jury's verdicts on the gang-related enhancements and allegations. The convictions are therefore affirmed.
Defendants' sentences, however, are reversed. We remand with orders to resentence defendants to indeterminate terms of life with the possibility of parole on the attempted murder counts. Similarly, the superior court clerk is ordered to amend the abstracts of judgment to omit the extraneous language regarding terms of imprisonment from the "Other Orders" recorded in paragraph 12. Finally, the trial court must exercise its discretion in determining whether to strike the vicarious firearm enhancements to the attempted murder convictions under section 12022.53, subdivision (h).
I
FACTS
A. The Substantive Crimes
At about 10:30 p.m. one night in August, 2015, Martin F. was walking home after visiting a friend in Santa Ana. As Martin crossed McFadden Avenue, he saw two men walking toward him on the other side of the intersection. After he crossed the street, he turned to the right and walked eastward down the sidewalk. At some point, he noticed the two men also had turned down McFadden and were walking about 15 to 20 feet behind him. Martin spotted a gray sedan with tinted back windows — the front windows were down — as it pulled out from a side street onto McFadden and parked about 15 feet behind him. As it passed, Martin noticed the sedan turn off its lights.
Martin kept walking, but as he looked back over his shoulder, he saw two males get out of the sedan — one from the driver's side, the other from the front passenger side. Within seconds, the two men who had been walking behind Martin ran past him, and he heard the sound of "firecrackers." Martin realized something was amiss, and he also began running. He did not look back, but he "didn't get far" because, within about 15 feet, his leg "gave out" on him, he fell to the ground, and realized he had been shot. Martin suffered a through-and-through wound from a single bullet that entered his right buttock and exited just above his groin.
The two men who ran past Martin were never identified and were referred to only as John Doe 1 and John Doe 2 in the pleadings and the verdict forms. Martin was the named victim in the third assault with a firearm charge and the count charging the battery with serious bodily injury.
Martin struggled to his feet and hobbled to a nearby bus stop bench where he collapsed. He testified a girl and her father soon arrived to help him, and the father used his belt as a tourniquet to help slow the bleeding.
At the same time, Caleb L. was returning home from work, traveling east on McFadden toward Harbor Blvd. He noticed a "suspicious" looking car with its lights off moving very slowly westbound on McFadden. Caleb's friend said, "Look that car just turned off his lights. Something is going to happen." A few seconds later, Caleb heard "more than five" gunshots, and he then noticed a man slumped on the nearby bus stop bench. Thinking the man was injured or dead, Caleb and his friends parked near the bus stop and called police.
Just after the gunshots, Caleb claimed he saw three "guys" jump out of the back of the sedan and head east on McFadden, cross Harbor, and eventually turn into a side street east of Harbor. As these individuals ran, the sedan started up and drove away, its lights still off.
Vanessa A. lived in a house that backs up to the south side of McFadden. When she heard four or five gunshots she went out into her back yard and looked over the wall separating her yard from McFadden. She saw a dark gray Chevrolet Impala stopped in the "middle" of McFadden with its lights off. She testified there were two people in the front and two in the back. The rear windows were half way down, the two in the back seat were looking west down McFadden; the front windows were down and the two in the front seats also were looking west. Vanessa turned to see what the men in the car were looking at and saw Martin at the bus stop "yelling for help." She told Martin her father was coming to help him, and he would be "okay." When she looked back, she saw the Impala quickly turn off McFadden onto a side street. Its lights were still off. She testified she saw the driver as the car turned, but none of the other passengers.
At the time of the shooting, an Orange County Sheriff's Department helicopter was flying nearby in response to another call. When the helicopter deputies heard radio traffic regarding the McFadden shooting, within a minute or two the pilot flew over the area and Sergeant Barton Epley, the helicopter's tactical support officer, spotted a dark-colored Chevy Impala just west of the McFadden shooting location. Its lights were off, and it was driving a bit slower than normal. The helicopter followed the Impala until it parked in a nearby apartment complex on Newhope Street, a few blocks west of the shooting scene.
Epley watched as the driver, later determined to be Hernandez, parked the Impala in the apartment complex lot, got out, and entered one of the buildings. Before that, Epley saw no one else exit the Impala. Epley did not stop watching from the time he initially spotted the Impala until Santa Ana patrol cars arrived and secured the scene.
Santa Ana police who had responded to the McFadden crime scene heard Epley's radio communications regarding his observations. Within a few minutes, they arrived at the apartment complex and found the parked Impala with Pala alone inside. No weapons were found inside the car.
Police brought out the occupants of the building Hernandez had entered, including Hernandez, and a later search of his family's unit revealed various types of ammunition, but no guns. Police did find the keys to the Impala and gang indicia, including two caps with the letter "M," one of which had an unspecified moniker printed on it. Also found on a dresser in Hernandez's bedroom was a jail visitation form, with "MSLC X3" inscribed in the corner of the form. Expert testimony established "MSLC" means Middleside Los Chicos, "Los Chicos" being another name used by Middleside as it evolved from a car club into the Middleside gang. The jail inmate listed on the visitation form was Christopher Zaragoza, the subject of a Santa Ana police investigation into Middleside gang activities.
In Hernandez's bedroom closet police found various quantities of four different kinds of handgun ammunition: .22-, .380-, .32- calibers, and nine-millimeter. Aside from a single .380 bullet, the other ammunition was in 50 count boxes, none of which was full.
Police brought Vanessa to the apartment complex and she identified the Impala as the car she had seen earlier. She also identified Hernandez as the driver, and did so again at trial. She could not recognize or identify Pala. B. Defendants' Statements
After his arrest, Pala was interviewed briefly before declining to speak further. When asked what he was doing in Hernandez's Impala that night, Pala responded he had been sleeping in the car for about 30 to 40 minutes before being awakened by police.
Hernandez also was interviewed that night, and an hour and twenty-two minute audio recording of his interview was played for the jury. Hernandez told Officer Gerardo Raya the Impala was his and he had owned it for two months. When asked where he was that night, Hernandez told Raya that he and his "homie" had been at a nearby "Sonic's," but denied being on McFadden. After further questioning, however, he admitted he may have been on McFadden. Nonetheless, he denied knowing anything about a shooting on McFadden.
"Sonic" is a nationwide fast food restaurant chain with locations throughout Southern California.
Using a ruse, Raya told Hernandez they were going to conduct a gunshot residue (GSR) test on him, his clothes, and his car. Hernandez admitted there was a "50/50" chance gunshot residue would be found on his shorts and in his car.
Santa Ana police stopped using GSR testing a decade ago because of its forensic unreliability.
The interview then turned to gangs. Raya said "You're from Middleside right? So who's your enemies? All east was [] east of Harbor, okay? But for the most part if you stay what? West of Harbor, you're good?" Hernandez replied "I guess so." Raya pressed on: "[Y]ou guys have a reputation." Hernandez responded "Even the cops come to our side." When asked why, Hernandez answered: "They say we got everything, we got all [the] guns. . . ."
Raya remarked rival gang Santa Nita had more members, but the Middlesiders "probably have more fun than they do." Hernandez agreed, saying "Yeah, they got more bodies but they're lames. . . . They're wimps." Raya asked, "Okay, what are you guys?" Hernandez replied "Top notch mother fuckers."
Raya told Hernandez that when Hernandez is out on the street, in the Middleside gang area, he does not have to be concerned because "you're surrounded by your homies." But in jail or prison, he told Hernandez he will have to be careful and he will have to "watch your back everywhere you go" for the next 10 years or more. Hernandez replied, "How about those who . . . How about people that get conspiracy to commit murder? What is [the penalty for] that?"
Raya then talked about the crime: "So you had to slow down the car. So, so he could get out. Now was this, hey, you know, does he have a gun and he tells you, hey, slow down? Cause I understand that. If my partner has a gun and tells me to slow down, I'm a slowdown. Or was this your idea, saying hey, here's a [gun] I'm going to slow down and jump out. Cause that's... That right there would be the difference is if you, if you get 10 years or whatever years. I don't know, but that's a huge difference right there." Hernandez replied "I know. True. True." Raya followed with "Do you agree, that you had to slow down the car for someone to jump out?" Hernandez admitted "Yeah, cause I mean, you go[t] to slow down." Raya then asked "Who shot the gun?" Hernandez responded, "I don't know, man."
Raya told Hernandez there were witnesses to the shooting and the police helicopter followed him home. "You were in the car when that guy got shot. Okay? Why did that guy get shot? Why him? Um, I think . . . And correct me if I'm wrong. I, I don't think you guys are trying to shoot him. I think you're trying to shoot the other guys that ran away. And then this poor guy gets shot. . . . Were you guys trying to shoot this guy? No? Is that is that I don't know or is that no, buddy?" Hernandez responded "I don't know man, shit just happened too fast, man, I guess. The whole thing, man."
Raya could not convince Hernandez to speak any more about the shooting, so then inquired about his gang connections. "And how long have you been with Middleside?" Hernandez, who was then 20 years old, eventually admitted, "I have been doing this since about 16 years . . . ." The two conversed about the other nearby gangs, and Raya asked "[H]ow much street credit you think you guys are going to get for [the shooting] right now?" Hernandez replied, "I don't even care about the street cred." Raya suggested without "street cred", "Santa Nita is like man, these guys are suckers. Let us start moving [west] past Harbor [Blvd.] right? You got to have some cred dude." Hernandez explained, ". . . it's not really cred, we got a rep." Raya asked, "So you think you will get a big rep from this shooting that happened in your guys' area?" Hernandez answered: "I don't know. Poor guy got hit so you know . . . I do feel sorry for him you know, but like you know. He was just at the wrong place at the wrong time. I guess you know."
"Were you guys trying to shoot someone else? The guy in a white shirt?" Raya asked. "There's a lot of people on the street," Hernandez responded. Raya asked whether the two targets were "Santa Nita in your guys' area . . . Cause they are . . . not that dumb to pass Harbor." Hernandez pointed out "You, you get some pretty dumb mother fuckers, ey." Raya continued to ask about Santa Nita members and why they would "pass Harbor and especially on McFadden. That's pretty silly dude. For another gang to be over there." Hernandez responded: "They just always, let just say a lot, a lot, a lot of gangs, like a lot of other hoods underestimated like us now you know . . . . There was one point where they were like you know, like, fools like walk down here and this and that. . . . And you can't let that shit happen, ey."
Raya focused in: "So, so did this happen just cause you see these guys on the street? I mean, like you said, it doesn't seem to me, if someone is going to go shoot somebody, they are going to go to [Sonic] and get a [frozen drink] before they shoot somebody. Or is this like hey, we are just trying to go home cause I got to [go to] work in a couple minutes." Hernandez admitted: "Yeah . . . shit just happened. I just try, I have been trying to stay out of trouble . . . [b]ut sometimes just trouble you know, trouble just follows you. . . . Comes at you out of nowhere. Fuck, ey you know. Gotta do what you gotta do right?"
Raya persisted: "I don't see you going to [Sonic] to get a burger before you say hey, let's go try to murder somebody. Okay?" Hernandez replied: "Nah, we was just chilling like you know homeboy called me, hey what's cracking you know . . . I told him hey you ever been to Sonic, he was like nah. So I took him. We were coming back and just . . . from there." Raya asked if they saw Santa Nita members in their territory, and Hernandez replied "[y]ou can say that."
Raya asked "So you're coming back and you see Santa Nita in the area. Is there a long conversation," "[o]r . . . we got to fix this now?" Hernandez answered "It is what it is you know." Raya probed further: "So you guys drive by, you see them, you either make a U-turn or you stop right there and your friend gets out and does he shoot them because of that? Because they are in your area? I mean. . . ." Hernandez tersely responded "Turf, man. . . ."
Hernandez told Raya he does not always react to rival gang members in his territory, stating "You know, I let a lot of people slide. . ." Raya inquired why he did not let it slide that day, and Hernandez explained: "It's been quiet you know, lately. It's been quiet in the neighborhood. So we [inaudible] pop, pop, I guess. Raya asked if that was because Santa Nita "started it right? Now it is one of those where they start it and you have to finish it?" Hernandez replied simply "They started it." C. Gang Evidence/Expert Testimony
Santa Ana Police Detective Sergeant Julian Rodriguez testified as the prosecution's gang expert. According to Rodriguez, Santa Ana's criminal street gangs are primarily Hispanic. He explained Hispanic gangs are a "turf-based" entity that claims a territory, which gives them a relatively safe haven where they commit their crimes. Gang members closely guard their territory, and encroachment by a rival, or a challenge by a non-member, is deemed an act of disrespect. Respect is gained by committing crimes benefitting the gang, performing violent acts, and supporting gang endeavors. Disrespect toward a gang requires the gang to respond with conduct equal to or greater than the level of disrespect, so as not to "lose face." A rival gang member entering a criminal street gang's territory could be viewed as disrespectful and therefore require retaliation.
Gang members commonly commit their crimes together. Rodriguez explained this provides for a "kind of a built-in safety net." "You have your backup built in. . . . There's safety in numbers. Gang members that are with you could be acting as lookouts. They could be intimidating other people so they don't call the police. They could be on the lookout for police [or for] rival gang members. . . . [I]t creates safety in numbers."
Trust is also important for gang members when they are committing crimes with each other. "They don't take people who are not trusted members of the gang, or people that are being vetted into the gang to commit these crimes. . . . So if they are going to commit crimes within eyeshot of someone else, then the expectation is this person is trusted enough that they are not going to inform on them." Similarly, gang members are expected to back each other up. A failure to backup will result in "sanction[s]," from monetary to being "beaten, stabbed, or even killed."
Rodriguez was familiar with the Santa Ana gang known as Middleside. Based on his background, training, and experience, and his personal contacts with Middleside members, Rodriguez opined Middleside met all the elements of an ongoing and active criminal street gang. Middleside members often wear clothing with the letter "M" on it.
Rodriguez testified Middleside's primary rival is Santa Nita, a gang whose territory borders Middleside's to the east. At the time of the shooting in this case, Middleside and Santa Nita were "actively warring with one another. There [were] several shootings that went back and forth between the two gangs." Harbor Blvd. is significant to this gang war because it acts as a sort of "buffer area" between the two gangs. While not exactly a demilitarized zone in the traditional sense, if a Santa Nita member were found west of Harbor, a confrontation with Middleside could ensue. Such a location is "outside of the safety area of Santa Nita. . . . Once you cross Harbor, [the Santa Nita] stronghold weakens somewhat. And a Santa Nita gang member found outside of his area would be potentially a good victim or a good target."
Rodriguez testified he had done a background investigation on Hernandez, and had reviewed the police reports in the current case. He reviewed documentation concerning Hernandez's contacts with police and the people he was with when contacted, as well as the items found during the search of Hernandez's home. Based upon this information, Rodriguez opined Hernandez was a Middleside member on the night of the shooting.
Rodriguez performed a similar background review of Pala. Rodriguez testified he also reviewed "significant" documentation of Pala's contacts with the police, the people he was with, and the areas where he was contacted. One document relating to Pala was a field identification card regarding a previous contact police made with Pala in Middleside gang territory while he was in the company of a known Middleside member. Based on everything he reviewed, his background and experience, and the facts of this case, Rodriguez opined that Pala also was a Middleside member at the time of the shooting.
The prosecutor was careful not to ask Rodriguez for the case-specific details of the underlying documentation he was relying upon to form his opinion about Pala. (See People v. Sanchez (2016) 63 Cal.4th 665, 676-677 [gang expert not permitted to supply otherwise inadmissible case-specific hearsay regarding the basis for his expert opinion].)
On cross-examination, the attorneys for Hernandez and Pala established that none of the documentation Rodriguez relied upon contained any admissions of gang membership. Similarly, neither defendant had been arrested before or previously documented as a gang member. On the prosecution's redirect, Rodriguez explained: "[T]he lack of documentation in and of itself is not indicative of not being in a gang. There are several gang members that fly under the radar, so to speak, and they are [wily] enough to not be contacted by law enforcement until their first significant arrest. The conduct [underlying] that [first] arrest and the associated factors, such as indicia that may be found during subsequent search warrants or other investigative means, may paint, you know, although an incomplete, a more accurate portrait of who that person is as far as their gang status."
The prosecutor presented Rodriguez with a hypothetical question and asked him to assume the following facts: Two Middleside gang members are driving together in an "in between zone" separating them from their rival gang. The car's lights are turned off, the car slowly pulls to the curb, and the two get out of the car. Two other people take off running, past a third person, as shots are fired. The third person is shot in the upper leg.
Based on that hypothetical, Rodriguez opined the conduct of the two Middleside members was done for the benefit of the Middleside criminal street gang. He based his opinion on "[t]he location, the fact that they are Middleside gang members, and the conduct in and of itself being violent would draw attention to them individually as gang members. And then by extension attention to the gang as being violent. And thereby elevating their respect in the criminal gang subculture and exerting fear and intimidation towards their rivals and other members of the community."
Based on the same hypothetical, Rodriguez opined the conduct was committed in association with a criminal street gang because "you have two gang members from the same gang committing the crime in unison." Asked to assume the same facts, Rodriguez also opined "the conduct of those two Middleside gang members was done to promote, further, or assist criminal conduct by Middleside gang members." He based his opinion "[o]n the knowledge that I have that fear and intimidation . . . creates that safety net. An area where they feel that they, being the gang members, commit crimes with impunity, because the community is going to be afraid of informing against them. And it sends the message that other gangs should not mess with them because they are armed and they are willing to use their firearms."
II.
DISCUSSION
A. CALCRIM No. 601: Aider and Abettor Liability for Willful, Deliberate, and Premediated Attempted Murder
Defendants claim the trial court prejudicially erred by instructing the jury with CALCRIM No. 601 because it allowed the jury to convict them of willful, deliberate, and premeditated attempted murder without finding they personally deliberated and premeditated the crime. Both concede, however, that People v. Lee (2003) 31 Cal.4th 613 (Lee), specifically permits such a result. Consequently, they ultimately modify their appellate position to raise the issue of the continuing viability of Lee and therefore preserve it for future review. As such, our discussion of the issue is rather brief.
Initially, Pala went a bit further and asserted Lee was wrongly decided and suggested we should "reconsider" it. In his reply brief, he concedes we are unable to "reconsider" Supreme Court authority, and instead acknowledges he is raising the issue to preserve it for future review.
The trial court instructed the jury with a tailored version of CALCRIM No. 601, stating in relevant part:
"If you find the defendant guilty of attempted murder . . . you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation. . . . [¶] . . . The attempted murder was done willfully and with deliberation and premeditation if either the defendant or the shooter or both of them acted with that state of mind." (Italics added.)
Thus, an aider and abettor to a willful, deliberate, and premeditated attempted murder is equally liable so long as a principal acted willfully, and with deliberation and premeditation, even though the aider and abettor did not personally deliberate or premeditate. (Lee, supra, 31 Cal.4th at pp. 622-623.) "[W]e conclude that the Legislature reasonably could have determined that an attempted murderer who is guilty as an aider and abettor, but who did not personally act with willfulness, deliberation, and premeditation, is sufficiently blameworthy to be punished with life imprisonment. Where, as in the present case, the natural-and-probable-consequences doctrine does not apply, such an attempted murderer necessarily acts willfully, that is with intent to kill. In addition, he or she also necessarily acts with a mental state at least approaching deliberation and premeditation — concepts that entail '"'careful thought and weighing of considerations'"' and '"'preexisting reflection'"' [citation], as opposed to 'mere unconsidered or rash impulse hastily executed' [citation] — because he or she necessarily acts with knowledge of the direct perpetrator's intent to kill and with a purpose of facilitating the direct perpetrator's accomplishment of the intended killing. Punishing such an attempted murderer with life imprisonment would not run counter to section 664(a)'s purpose of making the punishment proportionate to the crime." (Id. at p. 624.)
As a result, the jury was properly instructed under Lee, and it is not for us to second-guess its holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The willful, deliberate, premeditated attempted murder convictions must stand. B. Substantial Evidence Supported the Jury's True Findings on the Gang Enhancements and Allegations
Defendants next challenge the sufficiency of the evidence to support the jury's findings on the section 186.22, subdivision (b), gang enhancements, as well as the relevant gang-related element of the section 12022.53 firearm enhancements. We find substantial evidence supports the jury's findings.
1. Legal Background
To determine whether sufficient evidence supports an enhancement, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) Therefore, "[i]n considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).) Moreover, "[t]o prove a gang allegation, an expert witness may testify about criminal street gangs." (People v. Romero (2006) 140 Cal.App.4th 15, 18 (Romero); People v. Vang (2011) 52 Cal.4th 1038, 1044 [subject matter of culture and habits of criminal street gangs sufficiently beyond the ken of lay persons such that expert opinion would assist a trier of fact].)
Under this standard, "an appellate court in a criminal case . . . does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, but whether the judgment is supported by substantial evidence." (Woodby v. Immigration Service (1966) 385 U.S. 276, 282, italics added.) ""'The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.'" [Citation.] "'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]'" [Citation.] Reversal for insufficient evidence is warranted only where it clearly appears that upon no hypothesis whatever is there sufficient evidence to support a conviction. [Citations.]" (People v. Ewing (2016) 244 Cal.App.4th 359, 371 (Ewing).)
2. Criminal Street Gang Enhancements (§ 186.22, subd. (b))
Section 186.22, subdivision (b)(1), provides: "[A]ny 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. . . ."
Thus, a gang enhancement does not apply unless the crime was: (1) committed for the benefit of, at the direction of, or in association with any criminal street gang; and (2) with the specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Villalobos (2006) 145 Cal.App.4th 310, 322 (Villalobos).) Defendants contest both "prongs" of this test.
As to the first prong, "the Legislature included the requirement that the crime to be enhanced be committed for the benefit of, at the direction of, or in association with a criminal street gang to make it 'clear that a criminal offense is subject to increased punishment . . . only if the crime is "gang related."' [Citation.] Not every crime committed by gang members is related to a gang." (Albillar, supra, 51 Cal.4th at p. 60.)
Here, the charged crimes were gang related in two ways: according to Rodriguez's expert testimony, and based on the underlying details of their commission, they were committed both in association with Middleside, and for the benefit of Middleside.
A jury may reasonably infer "association" from membership. "[I]t is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members." (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales).) So too here. Indeed, it is hard to imagine a purpose for this crime other than a gang purpose.
Based on the expert testimony of Rodriguez and the underlying facts of the offenses, "defendants' conduct exceeded that which was necessary to establish that the offenses were committed in concert. Defendants not only actively assisted each other in committing these crimes, but their common gang membership ensured that they could rely on each other's cooperation in committing these crimes and that they would benefit from committing them together. . . ." (Albillar, supra, 51 Cal.4th at pp. 61-62.)
Defendants argue "[t]he weakest evidence of gang membership was with respect to Mr. Pala." As a reviewing court, however, we do not reweigh the evidence, or assess its relative strengths or weaknesses. (Albillar, supra, 51 Cal.4th at p. 60.) Moreover, "unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
The jury was instructed with CALCRIM No. 301 and told: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." --------
Hernandez argues that Rodriguez's reasoning in concluding Pala was a Middleside member, and therefore committed a crime in association with other gang members, is "circular," and refers us to one of Alice's encounters with the Cheshire Cat. He claims Rodriguez based his opinion regarding the "association" element solely on the fact the Impala's occupants, Pala and Hernandez, were Middleside members, but in turn, he based his conclusion Pala was a Middleside member only upon his presence in the car.
Unlike the Cheshire Cat's fallacious reasoning, the basis for Rodriguez's opinion was not limited to Pala's mere presence in the car. In addition, Rodriguez considered: Pala's previous field contact with a known Middleside member; the locale in which Pala grew up; Pala's lies to police about being asleep in Hernandez's car at the time the crimes occurred; Rodriguez's experience that gang members do not commit crimes in the presence of persons they do not know or trust, i.e., non-gang members; and the characteristic gang-culture manner in which the crimes were committed. Thus, Rodriguez based his opinion on more than Pala simply being in the car. Moreover, the jury was entitled to weigh Rodriguez's opinion testimony and evaluate its strengths or weaknesses, and we may not second-guess their assessment so long as it is based on the evidence.
We therefore find substantial evidence Hernandez and Pala acted together, i.e., in association, as gang members attempting to kill presumed rival gang members. In shooting at their fleeing would-be victims, one of the shots struck Martin, an innocent bystander. Thus, they committed these crimes "in association with" Middleside gang. (Cf. Albillar, supra, 51 Cal.4th at p 62.)
Turning to the benefit prong, we note "'[t]here is rarely direct evidence that a crime was committed for the benefit of a gang. For this reason, "we routinely draw inferences about intent from the predictable results of action. . . . We can discover mental state only from how people act and what they say."' [Citation.]" (Ewing, supra, 244 Cal.App.4th at pp. 378-379.)
"Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22(b)(1)." (Albillar, supra, 51 Cal.4th at p. 63; see also, People v. Vazquez (2009) 178 Cal.App.4th 347, 354 [substantial evidence showed the murder of a nongang member benefited the gang because gang expert testified "violent crimes like murder elevate the status of the gang within gang culture and intimidate neighborhood residents who are, as a result, 'fearful to come forward, assist law enforcement, testify in court, or even report crimes that they're victims of for fear that they may be the gang's next victim or at least retaliated on by that gang'"]; Romero, supra, 140 Cal.App.4th at p. 19 [relying on expert opinion that "a shooting of any African-American men would elevate the status of the shooters and their entire [Latino] gang"].) For the same reasons, "[a] community cowed by gang intimidation is less likely to report gang crimes and to assist in their prosecution. The gang benefit is plain." (People v. Margarejo (2008) 162 Cal.App.4th 102, 110.)
Here, the jury reasonably could infer the shooting in this case benefitted Middleside gang based on Rodriguez's testimony regarding the culture of Hispanic gangs in general, and Middleside's relationships with its rival neighbors in particular, along with Hernandez's acknowledgements about "turf" and the encroachment of Santa Nita.
"The second prong of section 186.22(b)(1) requires a defendant commit the gang-related felony 'with the specific intent to promote, further, or assist in any criminal conduct by gang members.' [Citation.]" (Albillar, supra, 51 Cal.4th at p. 64.) "Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. [Citation.]" (Villalobos, supra, 145 Cal.App.4th at p. 322; see Romero, supra, 140 Cal.App.4th at p. 20 ["There was ample evidence that appellant intended to commit a crime, that he intended to help [his accomplice] commit a crime, and that he knew [his accomplice] was a member of his gang"].)
Significantly, section 186.22, subd. (b)(1), does not require the specific intent to promote, further, or assist a gang-related crime. "The enhancement already requires proof that the defendant commit a gang-related crime in the first prong — i.e., that the defendant be convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang. [Citation.] There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members. [Citations.]" (Albillar, supra, 51 Cal.4th at p. 67.) Moreover, the enhancement "does not depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (Id. at p. 68.)
In Morales, supra, 112 Cal.App.4th 1176, the defendant and two fellow gang members committed a robbery. On appeal, defendant argued he lacked the requisite specific intent for the gang finding because the evidence showed only that the defendant and his two associates belonged to the same gang. The court rejected his claim, concluding there was sufficient evidence the defendant intended to commit the robbery in association with other gang members and therefore it was "fairly inferable that he intended to assist criminal conduct by his fellow gang members." (Id. at p. 1198.) So too here. Defendants' "intentional acts, when combined with [their] knowledge that those acts would assist crimes by . . . gang members, afforded sufficient evidence of the requisite specific intent." (Id. at pp. 1198-1199.) "In sum, if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Albillar, supra, 51 Cal.4th at p. 68.)
Here, "'[t]here was ample evidence that appellant intended to commit a crime, that he intended to help [codefendant] commit a crime, and that he knew [codefendant] was a member of his gang. This evidence creates a reasonable inference that appellant possessed the specific intent to further [his co-defendant's] criminal conduct.' [Citation.]" (People v. Leon (2008) 161 Cal.App.4th 148, 162-163.)
Furthermore, from the established evidence of Hernandez and Pala's association, and Rodriguez's description of the characteristic turf-related nature of the crimes, the jury reasonably could infer that defendants harbored the "specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) "Accordingly, there was substantial evidence that defendants acted with the specific intent to promote, further, or assist gang members in that criminal conduct." (Albillar, supra, 51 Cal.4th at p. 68.)
3. Firearm Discharge During the Commission of a Gang-Related Felony Enhancements (§ 12022 .53, subds. (c) & (e)(1))
In relevant part, section 12022.53 provides: "Notwithstanding any other provision of law, any person who, in the commission of [attempted murder], personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years." (§ 12022.53, subd. (c).) In addition, "[t]he enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision . . . (c) . . . ." (§ 12022.53, subd. (e)(1), italics added.)
As explained above, sufficient evidence supports the willful, deliberate and premeditated attempted murder convictions, the assault with a firearm and battery with serious bodily injury convictions, and the section 186.22, subdivision (b), gang enhancements. Consequently, substantial evidence also supports the concomitant section 12022.53 firearm enhancements. (See Romero, supra, 140 Cal.App.4th at p. 20.) C. Sentencing Issues
1. "Life" vs. "Seven Years to Life"
Defendants argue the trial court erred in sentencing them to an indeterminate term of "seven-years-to-life" in prison. The Attorney General concedes the error, noting that section 664, subdivision (a), provides that "if the crime attempted is willful, deliberate, and premeditated murder . . . the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole." No minimum term is stated.
"Some indeterminate sentences expressly include a minimum prison term. For example, the punishment for second degree murder is ordinarily 'a term of 15 years to life,' while first degree murder generally carries 'a term of 25 years to life.' [Citation.] Other statutes specifying indeterminate sentences do not mention a minimum term, describing the sentence simply as 'imprisonment in the state prison for life with the possibility of parole.'" (People v. Jefferson (1999) 21 Cal.4th 86, 92-93 (Jefferson).)
In Jefferson, the Supreme Court confronted the juxtaposition of willful, deliberate and premeditated attempted murder, a crime with an indeterminate sentence and no minimum term, and the Three Strikes Law in a two strike situation. The precise question before the court was how to sentence a second strike offender whose current offense required an indeterminate life sentence without a stated minimum term. The court faced the following conundrum: the Three Strikes Law directs courts to sentence second strike offenders by doubling "the determinate term or minimum term for an indeterminate term." (§ 667, subd. (e)(1).) But this language permits no doubling because the statute prescribing the punishment for attempted premeditated murder sets out neither a determinate term nor a minimum term for the indeterminate life sentence.
To solve the problem of doubling a nonexistent minimum or determinate term, the court imported section 3046, a parole eligibility statute. Section 3046 provides in part: "(a) An inmate imprisoned under a life sentence shall not be paroled until he or she has served the greater of the following: [¶] (1) A term of at least seven calendar years." Thus, the Jefferson court crafted a "minimum" term to resolve the problem of calculating sentences for two strike offenses with indeterminate punishments.
Here, the current case does not fall under the Three Strikes Law, and therefore there is no need to incorporate Jefferson's creative sentencing solution. In her dissent in Jefferson, Werdegar, J. stated: "The majority has misread section 3046. The section merely places a limit on the discretion of the Board of Prison Terms; it is not addressed to courts and does not purport to play any role in judicial sentencing. In pronouncing sentence for attempted premeditated murder, the court simply sentences to life in prison. The court does not impose, or even mention, the period set out in section 3046. Indeed, section 1168, subdivision (b), which does speak to courts at the time of sentencing, expressly directs the court not to set a minimum term when the indicated punishment is a straight life sentence. Thus, from the court's perspective at the time of sentencing, the crime at issue here simply does not carry a minimum term." (Jefferson, supra, 21 Cal.4th at p. 104 (dis. opn. of Werdegar, J.).)
Section 1168 provides: "(a) Every person who commits a public offense, for which any specification of three time periods of imprisonment in any state prison . . . is now prescribed by law or for which only a single term of imprisonment in state prison . . . be sentenced pursuant to [section 1170 et seq.] [¶] (b) For any person not sentenced under such provision, but who is sentenced to be imprisoned in the state prison . . . the court imposing the sentence shall not fix the term or duration of the period of imprisonment." (Italics added.) Thus, "[o]ffenses for which an indeterminate sentence of life imprisonment or death can be imposed are not subject to section 1170.1. Consequently, there are no principal and subordinate terms to be selected. [Citation.] The court simply imposes the statutory term of imprisonment for the indeterminate sentence crime. . . ." (People v. Neely (2009) 176 Cal.App.4th 787, 798.)
Willful, deliberate, and premeditated attempted murder does not have a tripartite sentencing scheme, and therefore is not covered by sections 1168, subdivision (a), or 1170.1. Instead, it falls under subdivision (b) of section 1168. Trial courts therefore should "not fix the term or duration of the period of imprisonment." (§ 1168, subd. (b).) Instead, the trial courts must impose the statutory term of imprisonment for the indeterminate sentence, i.e., life with the possibility of parole.
2. Surplusage in the "Other Orders" Paragraph of the Abstracts of Judgment
In a related vein, Pala insists his abstract of judgment must be corrected to delete the superior court clerk's entries regarding his sentence, and Hernandez joins in this claim. Specifically, in paragraph 12, "Other Orders," Pala's abstract contains the following language: "The defendant has a determinate sentence of 29 years state prison and an indeterminate sentence of 7 years to life. The defendant's total time to be served is 36 years to life." In the same paragraph, Hernandez' abstract states "The defendant has a Determinate Sentence of 29 years State Prison and an Indeterminate Sentence of 7 years to Life."
As explained above, section 1168 requires a sentence of life with the possibility of parole. Consequently, Pala's abstract incorrectly pronounces a "total time to be served" as "36 years to life." Not only is that not the sentence the trial court pronounced in its oral rendition of judgment, but it is also an incorrect mixing of determinate and indeterminate sentences. Other than the seven-years-to-life issue addressed above, the trial court's actual sentencing language correctly kept them separate: "So indeterminate sentence of seven years to life for the attempted murder. [¶] In the determinate sentence for the vicarious [firearm] discharge and the charges against Mr. [F.], would total 29 years."
The Attorney General has no objection to Pala's request to correct his abstract of judgment by deleting the above-quoted language from paragraph 12. We agree. Similar language in Hernandez's abstract should also be deleted from the "Other Orders" paragraph. On remand, the superior court clerk is ordered to prepare amended abstracts of judgment omitting such language from paragraph 12.
3. Remand is Required for the Trial Court to Exercise Its Discretion Under Section 12022 .53, Subdivision (h)
On October 11, 2017, the Governor signed Senate Bill No. 620 into law, and it became effective January 1, 2018. The bill amended subdivision (h) of section 12022.53, and that subdivision now provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.)
"There is nothing in the language of section 12022.53, subdivision (h), or in the broader language of [Senate Bill No. 620], indicating the Legislature intended the subdivision to be only prospective. [Citation.] Accordingly, we conclude section 12022.53, subdivision (h), may be applied in the instant case because (1) it vests the trial court with authority to lower defendant's sentence, and (2) defendant's sentence was not final at the time the subdivision became effective." (People v. Robbins (2018) 19 Cal.App.5th 660, 679; see People v. Arredondo (2018) 21 Cal.App.5th 493, 507 ["the Legislature, in enacting Senate Bill 620 has made it clear it intended and expected that its provisions would be applied to all cases pending at the time it became effective"]; accord, People v. Woods (2018) 19 Cal.App.5th 1080, 1091.)
We agree with Robbins and conclude amended section 12022.53, subdivision (h), applies to all nonfinal judgments, including Hernandez's and Pala's. (Accord, People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-1111 (Almanza); People v. Billingsley (2018) 22 Cal.App.5th 1076, 1079-1080 (Billingsley); People v. Chavez (2018) 22 Cal.App.5th 663, 712; People v. McDaniels (2018) 22 Cal.App.5th 420, 424-425.)
"Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so. [Citation.] Without such a clear indication of a trial court's intent, remand is required when the trial court is unaware of its sentencing choices." (Almanza, supra, 24 Cal.App.5th at p. 1110.) Here, when the trial court sentenced Hernandez and Pala, the trial court had no choice but to impose the enhancement. Indeed, before its amendment "section 12022.53, subdivisions (f) and (h), prohibited the court from striking the firearm enhancements under section 12022.53, and required the court to impose the 20-year enhancement under subdivision (c)." (Billingsley, supra, 22 Cal.App.5th at p. 1082, italics added.)
Finally, there is nothing in the record to show what the trial court would have done had it been permitted to dismiss the section 12022.53 enhancements. As a result, and as all parties agree, remand is required.
III.
DISPOSITION
Hernandez's and Pala's convictions are affirmed. Their sentences are reversed. The case is remanded for the trial court to consider whether to strike the vicarious firearm enhancements it imposed under section 12022.53. The court also is directed to modify the sentences on the two attempted murder convictions to life with the possibility of parole. The clerk of the superior court is ordered to amend the abstracts of judgment accordingly, to remove the additional language now found in defendants' abstracts of judgment, and to forward certified copies of the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. GOETHALS, J.