Opinion
D048306
3-25-2008
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS LEON, Defendant and Appellant.
NOT TO BE PUBLISHED
I.
INTRODUCTION
A jury found Jose Luis Leon guilty of the second degree murder of Juan Mendoza (Juan) (Pen. Code, § 187, subd (a)) (count 1). The jury also determined that a principal in the offense personally discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)), and that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In addition, the jury found Leon guilty of making a criminal threat (§ 422) (count 2), and also found that he personally used a firearm during the offense (§ 12022.5), and that he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Leon claims that there is insufficient evidence to prove that he aided and abetted Juans murder. In addition, Leon claims that the trial court erred in admitting Juans out of court statements regarding his fear of Leon and in admitting evidence of Leons possession of a gun a few weeks after the murder. Leon also claims that there is insufficient evidence to support the firearm enhancement on count 2, and that the trial court erred in denying his motion for a new trial on the gang enhancement on count 2 on the ground of jury misconduct. We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
On April 27, 2003, Juan got together with his friends Jose Salcedo and Jessie Benavides. Although they were not gang members, Juan and Benavides looked like gang members in that they had shaved heads and wore the type of clothing that gang members commonly wear. Juan drove a green Cadillac that was "very low" to the ground, with "rims that [went] out" and tinted windows.
At approximately 4:00 that afternoon, Juan drove Salcedo and Benavides to a friends apartment near Cesar Chavez Park in San Ysidro, and parked his Cadillac. While Juan was standing in the doorway of the apartment complex, he noticed a teenage boy taking something from the car. Juan, Salcedo, and Benavides decided to get into Juans Cadillac to try and find the boy.
Juan drove the Cadillac toward Cesar Chavez Park. Benavides sat in the passenger seat, and Salcedo sat in the middle of the back seat. As the group drove down Sycamore Road, Benavides and Salcedo saw a group of men standing in front of a house. As Juan drove by, Salcedo witnessed one of the men throw his arms up in the air and say, in an angry manner, "Whats Up?"
Juan drove the group to the park, but they did not get out of Juans car. Juan made a U-turn and drove up Sycamore Road in the direction they had previously traveled. As they approached the area where Salcedo and Benavides had seen the group of men, one the men from the group walked into the middle of the street, while another man, later determined to be Leon, stood in the street. The person in the middle of the street, who the People alleged was Jesse Fletes, motioned for Juan to stop his car.
Leons companion approached the drivers side window of Juans car, and Leon approached the passengers side window. Both Leon and his companion asked whether the occupants of Juans car were gang members. Juan, Salcedo, and Benavides responded in the negative. As Leons companion moved toward the back of the car, Leon stood next to the passenger side window, looked at Juan, and said something to effect of, "Were you the one who snitched on my friend?" Juan did not respond. Benavides said something like, "We have already taken care of that problem." Benavides also told Leon that he lived nearby. In response, Leon lifted up his shirt, displaying a gun tucked in his pants and said angrily, "What, you want me to shoot you?"
Juan attempted to drive away. Within seconds, Leons companion fired a gunshot that struck Juan in the back of his head, killing him. Benavides stepped on the gas pedal, and Salcedo reached over Juan from the back seat to steer the car away to safety.
B. Procedural background
In 2004, the People filed an amended information charging Leon and Fletes with murder (§ 187, subd. (a)) (count 1). The People also alleged that both defendants were principals in the murder and that Fletes personally used a firearm causing death (§ 12022.53, subds. (d), (e)(1)). The information further alleged that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)). The People also charged Leon and Fletes with making a criminal threat (§ 422) (count 2) and alleged that Leon personally used a firearm during the commission of the offense (§ 12022.5, subd. (a)(1)), and that he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In addition, the People charged Fletes with making a criminal threat (§ 422) (count 3), dissuading a witness (§ 136.1 subd. (c)(1)) (count 4), and possession of marijuana for sale (Health & Saf. Code, § 11359) (count 5). With respect to counts 3, 4, and 5, the People alleged that Fletes committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1), (4)). The information also included various enhancement allegations applicable to Fletes that are not material to this appeal.
Counts 3 and 4 pertained to Fletess alleged conduct in threatening a witness to Juans murder. Count 5 involved a separate incident.
The jury found Leon not guilty of first degree murder on count 1, but guilty of second degree murder. The jury also found that a principal in the offense had personally used a firearm causing death, and that the offense was committed for the benefit of a criminal street gang. The jury found Leon guilty of making a criminal threat on count 2, and found true the associated firearm and gang enhancements.
The jury found Fletes guilty of possession of marijuana for sale on count 5, but could not reach a verdict on counts 1 and 2 as to Fletes, nor on counts 3 and 4, which pertained only to Fletes. The trial court declared a mistrial as to Fletes on counts 1 and 2, and also on counts 3 and 4.
On count 1, the trial court sentenced Leon to 40 years to life in prison, consisting of 15 years to life on the principal offense, and a consecutive term of 25 years to life for the firearm enhancement. With respect to the gang enhancement on count 1, the court stated, "[T]he punishment for the street gang enhancement is not imposed pursuant to law." The court stayed imposition of the sentence on count 2 and the enhancements associated with that count. The trial court also sentenced Leon on a separate case, as discussed in part III.H., post.
III.
DISCUSSION
A. There is sufficient evidence that Leon aided and abetted Juans murder
Leon claims that there is insufficient evidence to support the jurys verdict that he aided and abetted the murder of Juan.
1. Standard of review
In determining the sufficiency of the evidence to support a conviction, "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.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
2. Governing law
a. Second degree murder
"Murder is the unlawful killing of a human being . . . with malice aforethought. (§ 187, subd. (a).) Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. (§ 188.) Murder that is committed with malice but is not premeditated is of the second degree. ([Citation]; § 189.)" (People v. Prince (2007) 40 Cal.4th 1179, 1265-1266.)
b. Aiding and abetting
"A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citation.]" (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
In People v. Mendoza (1998) 18 Cal.4th 1114, (Mendoza), the Supreme Court described in further detail the mental state necessary to be culpable of aiding and abetting a crime:
"All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed. [Citation.] Accordingly, an aider and abettor shares the guilt of the actual perpetrator. [Citation.] The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. [¶] The actual perpetrator must have whatever mental state is required for each crime charged. . . . An aider and abettor, on the other hand, must act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citation.] The jury must find the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . . [Citations.]" (Id. at pp. 1122-1123, italics omitted.)
"[A]dvance knowledge is not a prerequisite for liability as an aider and abettor. Aiding and abetting may be committed "on the spur of the moment," that is, as instantaneously as the criminal act itself. [Citation.] [Citation.]" (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 742.) "It is settled that if a defendants liability for an offense is predicated upon the theory that he or she aided and abetted the perpetrator, the defendants intent to encourage or facilitate the actions of the perpetrator must be formed prior to or during "commission" of that offense. [Citations.]" (People v. Montoya (1994) 7 Cal.4th 1027, 1039.) "As to intent, proof of an aider and abettors intent may be adduced by way of an inference from [his] volitional acts with knowledge of their probable consequences. [Citation.]" (People v. Mitchell (1986) 183 Cal.App.3d 325, 330 (Mitchell).) "Knowledge, like intent, is rarely susceptible of direct proof and generally must be established by circumstantial evidence and the reasonable inferences to which it gives rise. (See, e.g., People v. Beeman (1984) 35 Cal.3d 547, 558-560, 199 Cal.Rptr. 60, 674 P.2d 1318 [proof of aider and abettors intent]; [citations].)" (People v. Buckley (1986) 183 Cal.App.3d 489, 494-495 (Buckley).)
"[I]n general neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. [Citations.] However, [a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense. [Citation.]" (People v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell); see also Mitchell, supra, 183 Cal.App.3d at p. 330.)
3. Analysis
The People presented evidence that Leons fellow gang member stopped Juans car and that immediately thereafter, Leon and his companion approached Juans car together. Leon stood by the passengers side of the car and addressed the cars occupants. Leon asked Juan, Salcedo, and Benavides whether they were in a gang and asked Juan whether he had "snitched on [Leons] friend." Leon then lifted up his shirt, revealing a gun tucked inside his waistband. After showing that he was armed, Leon angrily said, "Do you want me to shoot you?" As Juan attempted to drive away, Leons companion fired a gunshot that killed Juan.
The People presented evidence that Leon and Fletes were both members of the Sidro criminal street gang.
Leon was present at the scene and had a relationship with the perpetrator of the shooting. (See Campbell, supra, 25 Cal.App.4th at p. 409.) Further, Leons conduct immediately before the offense constituted evidence that supports a conviction for aiding and abetting. By suggesting that Juan had "snitched on [Leons] friend," and then threatening the occupants of the car, Leon provided a motive for the perpetrator to shoot Juan, which occurred moments later. (See Campbell, supra, 25 Cal.App.4th at p. 409.) While Leon claims that there was no evidence that he knew the shooters criminal purpose in advance, the fact that moments before the killing Leon himself displayed a gun and threatened to shoot the occupants of the car provides sufficient circumstantial evidence from which the jury could infer his knowledge of the shooters criminal purpose. (See Buckley, supra, 183 Cal.App.3d at pp. 494-495.)
We reject Leons claim that the jurys verdict finding him not guilty of first degree murder is relevant to a determination as to whether there is sufficient evidence to support the jurys finding Leon guilty of second degree murder. Leon argues that because the jury found him not guilty of first degree murder and guilty of second degree murder, "the jury unanimously agreed there was insufficient evidence to prove the killing was based on premeditation and deliberation. . . ." However, the verdict of not guilty on the charge of first degree murder does not demonstrate that the evidence was insufficient as a matter of law to support that charge. In any event, even assuming for the sake of argument that we were to conclude that there was insufficient evidence to support a conviction of first degree murder, such a conclusion would not preclude a determination that there is sufficient evidence to support the jurys finding that Leon was guilty of second degree murder. For the reasons stated above, we conclude that there is sufficient evidence to support this verdict.
B. The trial court did not err in admitting Juans out of court statements pertaining to his fear of Leon and the Sidro gang
Leon claims that the trial court erred in admitting in evidence a number of out of court statements that Juan made. Leon argues that the statements constitute hearsay, and that they were not admissible under any valid exception to the hearsay rule.
1. Standard of review
"The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence. [Citation.] This standard is particularly appropriate when, as here, the trial courts determination of admissibility involved questions of relevance, the state of mind exception to the hearsay rule, and undue prejudice. [Citation.] Under this standard, a trial courts ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1113 (Guerra).) "Although [the abuse of discretion standard is] variously phrased in various decisions [citations], it asks in substance whether the ruling in question falls outside the bounds of reason under the applicable law and the relevant facts [citations]." (People v. Williams (1998) 17 Cal.4th 148, 162.)
2. Factual and procedural background
a. Proceedings regarding the admissibility of Juans statements, made in 2002, regarding his fear of Leon and the Sidro gang
In their trial brief, the People argued that evidence of Juans prior statements in which he expressed fear of the Sidro street gang, were admissible to show both motive and Juans state of mind. The People described an incident that had allegedly occurred approximately a year before the April 2003 murder in which a member of the Sidro gang, Sabas Aldana, stole Juans car stereo. After Aldanas arrest, Juan told his mother, Maria Mendoza (Maria), that Sidro gang members believed that Juan had reported Aldana to the authorities. Juan told Maria that Aldana was a dangerous person. Juan kept track of the date on which Aldana would be released from prison, and ultimately moved to Fresno for several months to avoid a confrontation with the gang. The People noted that Juans statements were consistent with Leons accusation at the time of the murder that Juan had told on Leons friend, and argued that Leons "motive is supported by [this] evidence of the victims own state of mind." The People did not identify a statutory basis for admitting the statements, but claimed that the statements were admissible under "the general hearsay exception."
The court considered the admissibility of the statements at a pretrial hearing. Fletess attorney argued that Juans state of mind was not in issue in the case. The prosecutor replied that Juans state of mind was at issue with respect to the criminal threat charged in count 2. Specifically, the prosecutor argued that the statements corroborated evidence that Juan was in fear as he tried to flee at the time of the shooting. As a separate theory of admissibility, the prosecutor argued that the statements were admissible under the "general hearsay exception" to demonstrate the defendants motive in committing the crime. The People also clarified that Juan made the statements at issue approximately a year before the murder.
Leon and Fletes argued that the statements were not admissible under the state of mind exception because Juans state of mind at the time he made the statements was not at issue, and the statements were not relevant to Juans state of mind at the time of the incident. In addition, Leon argued that the possibility of prejudice would outweigh any probative value the evidence might have.
The court initially stated that it was not convinced that the statements were admissible to demonstrate Juans state of mind at the time of the murder, but went on to say, "I see a stronger argument motive-wise. . . ."
The prosecutor provided additional details regarding when Juan made the statements, and the precise nature of the statements. The prosecutor argued that the statements were trustworthy, noting the existence of evidence demonstrating that Juans stereo had in fact been stolen, that Juans relatives might be able to corroborate that Juan had in fact moved to Northern California, and that the statements Juan made to Maria were made during a "lengthy discussion." After hearing argument, the court stated, "I dont mind the statement regarding that he was afraid of the Sidro gang because they thought he was going to snitch." The court went on to state, "In essence, the limiting instruction that the jury would get is youre not taking this for the truth of the matter anyway. Its only to show state of mind . . . . Its because he was afraid of the gang because they think he snitched on someone." The court ultimately ruled, "Currently it will all come in that the requested statements [in] the Peoples [trial brief] would be allowed to be testified to by the victims mom."
b. Proceedings regarding the admissibility of Juans 2003 statements regarding Leon
On December 3, 2004, just prior to opening statements at trial, the prosecutor informed the court and the parties outside the presence of the jury that Maria had just informed the prosecutor of an additional statement Juan made regarding Leon. The prosecutor outlined Marias description of the context in which the statement was made, as follows: Approximately a month before the murder, while Juan was driving Maria to work, he pointed to an individual who was standing on the side of the road and said, "Mom thats the guy who wants to beat me up and take my car." Maria identified Leon as that individual. The prosecutor stated that Maria recalled this comment in response to the prosecutors questions about Juan being afraid.
Leon argued that the statement constituted inadmissible hearsay and that it was more prejudicial than probative, and noted that the prosecutor had not identified any relevant hearsay exception pursuant to which the statement was admissible. Leon requested that the court hold an Evidence Code section 402 hearing regarding the foundation for the statement before allowing its admission. Leon also argued that the evidence was irrelevant because it was undisputed that Leon was not the shooter, and there was little evidence of any animosity between Leon and Juan.
Evidence Code section 402 authorizes a trial court to hold a hearing, outside the presence of the jury, for the purpose of determining the admissibility of evidence.
The prosecutor argued that the evidence was relevant in establishing a motive for the shooting, and also proving Juans state of mind, for purposes of the criminal threat charge. The prosecutor maintained that the evidence was admissible both under "the catchall . . . exception to the hearsay rule" and under the spontaneous statement exception to the hearsay rule.
After further argument, the court stated that it would hold an Evidence Code section 402 hearing concerning the statements. During the hearing, Maria testified that approximately one month before the murder, Juan was driving her to work in San Ysidro. While Juan and Maria were stopped at a traffic light, Juan pointed to an individual who was standing on the side of the road. Maria estimated that the individual was approximately 50 feet from the car. Maria had never seen the man before. However, Maria later saw the man in court and identified Leon as that man. Juan told Maria, "Look Mom. The guy that is over there, this is the guy that wants me to have problems. Hes going to take my car away and hes going to shoot me." The prosecutor asked Maria whether Juan had said that Leon was going to shoot him, or rather, beat him up. Maria responded that Juan had said, "Hes going to kill me."
The prosecutor asked Maria what the tone of Juans voice was at the time he made the statements. Maria responded, "Scared." After further discussion about what exactly Juan had said, the prosecutor asked Maria, "Now, what we need to know is, while you were in the car with your son, he pointed out Mr. Leon and said, This guy wants to cause me problems." Maria responded, "Thats the one that wants to cause me problems. He wants me to have problems."
After additional discussion about how Maria had interpreted Juans statements, the prosecutor asked Maria, "While you were in the car, can you tell us the words that he used exactly?" Maria responded that Juan had said, "Look, mom. The guy that is there, he is the one that wants me to have problems." After Maria asked Juan which person he was referring to, Maria testified that Juan responded, "The one that is walking there. The one that has that little cap."
After cross-examination and further argument, the court commented that the statement was "something that the decedent gave very much spontaneously." The court ruled that the evidence was admissible as a spontaneous statement on the issues of Juans fear, for purposes of the criminal threat charge (count 2), and also as circumstantial evidence tending to identify Leon as having been present at the murder scene. The court noted that the evidence corroborated Marias testimony regarding Juans other statements about his fear of the Sidro gang. The court then stated, "I would suggest the prosecutor meet with the witness and have her testify consistent with the last statement she gave as to what was happening in the car."
c. Marias testimony at trial
At trial, Maria testified that she had had a conversation with Juan in either June or July of 2002 regarding Juans plans to move from San Ysidro to Northern California. Juan told Maria that he wanted to go somewhere because he did not want to have any problems with Aldana and Leon. Maria explained that Juan had told her that he was worried about Aldana because Aldana had stolen Juans stereo. Maria further testified that Juan told her that he had to leave the area before Aldana got out of jail, because of this incident. Juan left the San Ysidro area around July 4, 2002 and returned from Northern California the day after Thanksgiving, 2002. Leon objected on hearsay grounds throughout Marias testimony. The court overruled the objections.
Maria also testified regarding the incident that occurred in 2003, a few weeks before the murder, during which she and Juan saw Leon on the street. Maria testified, "My son said to me when we were stopped for the light, he said, my son, Look, Ma. Thats the guy that wants me to get into trouble. I said, Which? and he said, That guy." Maria testified that Juan sounded scared when he made this statement.
3. Governing law
a. Relevant evidence
Evidence is relevant if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210.)
b. The hearsay rule
"Hearsay evidence, is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subd. (b).) The prohibition on the introduction of hearsay evidence is known as the "hearsay rule." (Evid. Code, § 1200.) There are a number of exceptions to the hearsay rule. (Evid. Code, § 1201.)
c. Evidence offered to establish a declarants state of mind
Evidence Code section 1250 outlines an exception to the hearsay rule for statements that are offered to prove the declarants state of mind. That section provides:
"(a) Subject to Section 1252, evidence of a statement of the declarants then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when:
"(1) The evidence is offered to prove the declarants state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or
"(2) The evidence is offered to prove or explain acts or conduct of the declarant.
"(b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed."
Evidence Code section 1252 provides, "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness."
In People v. Ortiz (1995) 38 Cal.App.4th 377, 389 (Ortiz), the court explained the distinction between hearsay evidence offered pursuant to the state of mind exception to prove a declarants state of mind, and nonhearsay statements offered to prove a declarants state of mind.
"The evidence admitted under [Evidence Code] section 1250 is hearsay; it describes a mental or physical condition, intent, plan, or motive and is received for the truth of the matter stated. [Citation] If offered to prove the declarants state of mind, the statement may be introduced without limitation, subject only to [Evidence Code] section 352. However, the declarants state of mind must be at issue in the case. For instance, evidence of the victims general fear or dislike of the appellant is not relevant unless the victims state of mind has been placed in issue. [Citation.]
"In contrast, a statement which does not directly declare a mental state, but is merely circumstantial evidence of that state of mind, is not hearsay. It is not received for the truth of the matter stated, but rather whether the statement is true or not, the fact such statement was made is relevant to a determination of the declarants state of mind. [Citation.] Again, such evidence must be relevant to be admissible — the declarants state of mind must be in issue. [Citation.]"
In People v. Garcia (1986) 178 Cal.App.3d 814, 822, the court explained that a victims fear of a defendant may be relevant where the victims state of mind is at issue in the case:
"Statements by a victim concerning the defendants prior conduct such as threats made to him tend to establish the victims state of mind towards the defendant, namely, fear of him, and may be admitted where that state of mind is in issue. [Citation.] Such statements are not admitted to show the truth of the matter asserted, that the threats were made, or the defendants conduct in conformity therewith. They are instead admitted to show the victims conduct in conformity with his state of mind. [Citation.]"
State of mind evidence tending to show a declarants fear of the defendant may also be relevant when "the victims state of mind is directly relevant to an element of the offense [citation]. [Citation.]" (People v. Jablonski (2006) 37 Cal.4th 774, 819-820 (Jablonski).)
d. Evidence Code section 352
A court may exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
e. Evidence offered for a limited purpose
"It is . . . settled law that if evidence is admissible for any purpose it must be received, even though it may be highly improper for another purpose." (Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 412.) "When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." (Evid. Code, § 355.)
4. Juans out of court statements were admissible to demonstrate that Leons threat caused Juan to be in fear
a. The statements were relevant to demonstrate that Leons threat caused Juan to be in fear
The People were required to establish that Leons threat caused Juan to be in fear, in order to prove the criminal threat charged in count 2. (See § 422 [requiring evidence that defendants threats caused victim "reasonably to be in sustained fear"].) Therefore, Juans state of mind at the time of the incident was highly relevant to count 2. (See In re Sylvester C. (2006) 137 Cal.App.4th 601, 607 (Sylvester C.).)
In In re Sylvester C., the court reversed a defendants criminal threat conviction on the ground that the prosecution had failed to present sufficient evidence of the victims state of mind after the threat. The Sylvester C. court noted, "This failure of proof resulted largely from the absence of that victim from the trial and thus the absence of evidence from him about his state of mind upon hearing appellant utter his threat. Nor did the prosecution produce sufficient evidence from any other source regarding [the victims] actual state of mind on that occasion." (Sylvester C., supra, 137 Cal.App.4th at p. 607.)
At the close of evidence in this case, Leon moved for a judgment of acquittal on count 2 on the ground that there was insufficient evidence that Juan had suffered fear as a result of his threat. Leon argued that Juan had not testified that he heard the threat. Further, Leon argued, "[T]he statute requires that the victim . . . must feel fear, must have some indication of being afraid, and theres absolutely no evidence of that."
In this case, given the fact that Juan was murdered, the People could not present his testimony regarding his state of mind upon hearing Leons threat. However, evidence that Juan had previously been in fear of Leon constituted circumstantial evidence that Leons threats caused Juan to be placed in fear. (See e.g., Jablonski, supra, 37 Cal.4th at p. 821 [statements of fear communicated seven months prior to murder relevant in establishing state of mind at time of murder].) While the probative value of Juans statements, particularly those uttered in 2002, was reduced by the remoteness of the statements from the time of the incident, the probative value of evidence demonstrating Juans prior fear of Leon was increased, in view of the basis for the prior fear and the nature of the threat. More specifically, evidence that Juan believed that Leon thought Juan was a snitch was highly relevant to prove that Juan would be placed in fear when Leon threatened Juan for snitching on Leons friend.
Leon does not raise any claim on appeal that the trial court abused its discretion under Evidence Code section 352 in admitting evidence of Juans statements.
b. Juans statements were admissible to prove Juans state of mind either as nonhearsay, or as hearsay subject to the state of mind exception
As to the specific statements that were admitted in evidence at trial, Maria testified that Juan stated in 2002 that he was worried about Aldana and Leon and that he was moving to Northern California because he "didnt want to have any problems" with them. These statements were hearsay statements offered for their truth, but were admissible as trustworthy statements pursuant to the state of mind exception. (Evid. Code, §§ 1250, 1252.) Marias testimony that Aldana had taken Juans stereo constituted admissible nonhearsay circumstantial evidence of Juans state of mind. (See Ortiz, supra, 38 Cal.App.4th at p. 389.) Marias testimony that Juan had said, regarding Leon, a few weeks before the incident, "Thats the guy that wants me to get into trouble," and that Juan sounded scared when he made this statement, was also admissible as nonhearsay circumstantial evidence of Juans state of mind. (See ibid.)
The trial court could have reasonably determined that the statements were trustworthy, for the reasons the prosecutor offered in arguing for their admission.
Accordingly, the trial court did not abuse its discretion in overruling Leons hearsay objections to Marias testimony.
c. In light of Leons failure to request a limiting instruction, Leon cannot establish that the trial court abused its discretion in admitting Marias testimony regarding Juans out of court statements for purposes other than demonstrating Juans fear
It is not entirely clear from the trial courts comments during the pretrial hearing whether the court was admitting Juans 2002 statements both to prove Juans state of mind as to the criminal threat charged in count 2, and also to prove Leons motive in assisting in the killing of Juan. For the reasons stated above, we conclude that the evidence was admissible to demonstrate Juans state of mind as to the criminal threat charged in count 2. Leon did not request that the trial court provide a limiting instruction with respect to evidence of Juans statements. Further, Leon did not argue in his brief on appeal that such a request would have been futile, and we cannot say that the trial court would not have given a limiting instruction if Leon had requested one. In fact, in discussing the admissibility of the 2002 statements, the trial court commented that it contemplated giving a "limiting instruction" to the jury to the effect that the jury would not be considering the statements "for the truth of the matter," but "only to show state of mind."
With respect to Marias testimony regarding the statements Juan made concerning Leon a few weeks before the murder, the trial court ruled at the conclusion of the Evidence Code section 402 hearing that this evidence was admissible for purposes of demonstrating Juans fear as to count 2, and for proving Leons identity. However, as with the 2002 statements, Leon did not argue in his brief on appeal that a request for a limiting instruction would have been futile. While the trial courts pretrial ruling as to the purposes for which these statements were being admitted suggests that the court might have denied a request for a limiting instruction if one had been made, we cannot be certain that this is so. (See People v. Boyer (2006) 38 Cal.4th 412, 465-466 [rejecting argument that request for limiting instruction would have been futile where trial court appeared to have accepted prosecutors argument that evidence was admissible for all purposes because "defendant was not prevented from contradicting the prosecutors view and proposing a more limited instruction"].)
Therefore, even assuming for the sake of argument that Marias testimony regarding Juans out of court statements was not admissible under any other exception to the hearsay rule and that the testimony was not admissible for any purpose other than to demonstrate Juans fear, in light of Leons failure to request a limiting instruction, Leon cannot establish that the trial court abused its discretion in admitting the testimony. (See People v. Smith (2007) 40 Cal.4th 483, 516 ["Even assuming that defendant is correct in noting that the evidence should only have been admitted for a limited purpose, the trial court had no sua sponte duty to give a limiting instruction"].)
C. The trial court did not err in admitting evidence of Leons possession of a firearm two weeks after the murder
Leon claims that the trial court erred in admitting evidence that police found him in possession of a firearm two weeks after the murder. Leon claims that the court should have excluded this evidence as improper character evidence under Evidence Code section 1101. Leon also claims that the court should have excluded the evidence under Evidence Code section 352 because its probative value was substantially outweighed by the probability of undue prejudice. We apply the abuse of discretion standard of review to this claim. (Guerra, supra, 37 Cal.4th at p. 1113.)
1. Factual and procedural background
During a pretrial hearing, the prosecutor indicated that she wanted to introduce in evidence two photographs of a firearm that police found in Leons possession in a separate incident that occurred within a month after the murder, as well as three photographs of Fletes holding a firearm. The prosecutor explained that she would present expert testimony that the firearm depicted in the photographs of Fletes appeared to be the same firearm depicted in photographs of the firearm that police found in Leons possession. The prosecutor argued that the photographs and testimony were admissible, among other reasons, to demonstrate a link between Fletes and Leon.
Leon claimed that the evidence was irrelevant, that it was being offered to make him look "like a bad guy," and that the court should exclude the evidence under Evidence Code section 352. Leon also suggested that if the court were to decide to admit the evidence, the defense would want to be able to present evidence that a third party, Javier Rodriguez, claimed ownership of the firearm that police found on Leon.
The court stated that it was willing to allow the defense to present evidence regarding the circumstances under which the gun was found, and suggested that the evidence be introduced by way of a stipulation among the parties. The court ruled that the photographs were relevant to demonstrate an "important link" in the case, noting that the photographs constituted evidence that "puts this gun together, or a gun similar to it, with both of the [defendants]." The court also overruled Leons Evidence Code section 352 objection. Leons counsel stated that the admission of the evidence would also raise the problem of the admission of evidence of other crimes. The court noted that the evidence was admissible, and that it was up to the defense whether to introduce additional evidence as to the circumstances under which the gun was found in Leons possession.
During the trial, outside the presence of the jury, Fletes and Leon again raised objections to the introduction of evidence of the photographs of the gun that police found in Leons possession. After extensive discussions outside the presence of the jury among all of the parties regarding the relevance of the evidence, its probative value, and the potential for prejudice from introduction of the evidence, the trial court again ruled that it would admit the evidence, noting that the evidence "shows that there is a relationship between Mr. Fletes and Mr. Leon."
The prosecutor read to the jury the following stipulation:
"It is hereby stipulated by the parties that Jose Leon was found in possession of a .22-caliber firearm and thirteen . 22-caliber bullets by officers from the Chula Vista Police Department on May 11th 2003. The firearm was found in his waistband. The ammunition was in his pocket. It is further stipulated that just prior to being contacted with the firearm he was a passenger in a vehicle driven and owned by Javier Rodriguez. Additional .22 caliber ammunition was found inside the passenger compartment of the car. Both Jose Leon and Javier Rodriguez claimed ownership of the firearm. That firearm is depicted in photos D and E in Peoples Exhibit 56."
Detective John Tefft of the San Diego Police Department testified that he had examined the photographs of the gun found in Leons possession and the gun depicted in the photographs of Fletes under a high-powered microscope. Detective Tefft testified that the guns depicted in the two sets of photographs were "very similar." From Teffts testimony, the jury could have reasonably inferred that the two sets of photographs depicted the same gun.
2. Governing law
Evidence Code section 1101 provides:
"(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
It is well established that evidence that is admissible pursuant to Evidence Code section 1101, subdivision (b), " must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.] [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 404, superseded by statute on other grounds, as stated by People v. Britt (2002) 104 Cal.App.4th 500, 505.)
3. The trial court properly admitted the evidence for the purpose of demonstrating a link between Fletes and Leon
Evidence from which the jury could infer that Leon was found with a gun in his possession a few weeks after the murder and that Fletes had previously been photographed in possession of the same gun was clearly relevant to prove "a fact . . . other than [Leons] disposition to commit such an act." (Evid. Code, § 1101, subd. (b).) The evidence was relevant to demonstrate a link between Fletes and Leon, and thus constituted circumstantial evidence tending to prove their identities as the persons who committed the charged offenses. We reject Leons argument that the evidence was irrelevant because the People had not "already proved . . . the identity of the people standing on either side of [Juans] car at the scene of the shooting." Leon cites no authority, and we are aware of none, that would provide support for the proposition that the prosecution is required to independently establish a fact before it offers other evidence to corroborate those facts. On the contrary, evidence is relevant if it has any tendency in reason to prove a disputed material fact (Evid. Code, § 210). Evidence linking Fletes and Leon was relevant to prove the identities of the perpetrators of the charged offenses.
We reject Leons conclusory argument that "the probative value of proving some link between Fletes and Leon, as opposed to proving they were together at the shooting, was so minimal that admission of the bad character, subsequent possession of a firearm [evidence] was an abuse of discretion under section 352." The evidence had significant probative value. The trial court thus did not abuse its discretion in overruling Leons Evidence Code section 352 objection.
In their brief, the People note that the prosecutor argued at trial that the evidence was admissible, among other reasons, for purposes of demonstrating a link between Fletes and Leon. The People also state that the trial court found the evidence admissible for several reasons. However, the People do not specifically address whether the trial court properly admitted the evidence to demonstrate a link between Fletes and Leon. For the reasons stated in the text, we conclude that the trial court properly admitted the evidence for this purpose. Leon does not argue that the trial court erred by failing to limit the admissibility of the evidence for this purpose. In light of our conclusion that the evidence was admissible to prove a link between Fletes and Leon, we need not consider the Peoples arguments regarding other theories of admissibility.
D. The cumulative error doctrine does not require reversal of the judgment
Leon claims that to the extent that this court concludes that none of the alleged errors discussed in parts III.B. and III.C., ante, merit reversal, the cumulative error doctrine requires reversal of the judgment.
"Under the cumulative error doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.)
We have found no error with respect to Leons claims that we addressed in parts III.B. and III.C., ante. Therefore, the cumulative error doctrine does not require reversal of the judgment.
E. There is sufficient evidence to support the firearm enhancement alleged in connection with count 2
Leon claims that there is insufficient evidence to support the firearm enhancement attached to count 2. Specifically, he claims that the evidence failed to establish that Leon used a real gun in the commission of the offense. We apply the substantial evidence standard of review described in part III.A., ante, to this claim.
1. Factual and procedural background
Salcedo testified that just prior to the murder, Leon angrily threatened, "Do you want me to shoot you?" According to Salcedo, Leon then displayed "more than half" of a gun that was tucked inside his waistband. Salcedo stated that the gun was black and "had a hole in the middle," "like a square," "where the bullets go."
Benavides testified that Leon was "right next to [Benavides]," when the encounter began. Benavides also testified that after Leon threatened to shoot him, Leon pulled up his shirt, revealing a black gun. Benavides saw the handle of the gun.
2. Governing law
Section 12022.5, subdivision (a) provides in relevant part, "any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense." Section 12001, subdivision (b) provides, "As used in this title, firearm means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion."
Section 12022.5 does not require proof that the firearm at issue be operable. (People v. Nelums (1982) 31 Cal.3d 355, 360.) Further, "[t]he character of the weapon used upon the victim may be shown by circumstantial evidence" (People v. Green (1985) 166 Cal.App.3d 514, 517 (Green)), including "testimonial descriptions of the weapon and its role in the commission of the crime . . . ." (People v. Hayden (1973) 30 Cal.App.3d 446, 452, disapproved on another ground by People v. Rist (1976) 16 Cal.3d 211, 223, fn. 10.) There is no requirement that the firearm itself be introduced in evidence. (People v. Williams (1976) 56 Cal.App.3d 253, 255.)
Courts have rejected claims that the evidence was insufficient to prove the use of a firearm in several cases in which the firearm was not introduced in evidence and no witness actually saw the gun. For example, in Green, the court concluded that a victims testimony "that she felt [the defendant] place a gun to her head and neck, together with evidence that two bullets were found in [the defendants] pocket [approximately 30 minutes after the crime], constitutes substantial evidence to support the allegation that he personally used a firearm." (Green, supra, 166 Cal.App.3d at pp. 517-518.)
In People v. Dominguez (1995) 38 Cal.App.4th 410, the court described the following evidence as sufficient to support a firearm enhancement under section 12022.5:
"The threat here was to kill the victim, not merely to hurt him. Under these circumstances, the sensation of the cold steel cylindrical object at the back of the victims neck, coupled with the threats to kill and the resultant fear of harm, was sufficient evidence to support a jury finding of the use of a firearm. [Citations.] Furthermore, on cross-examination, the defense elicited the victims statement to the officer that the defendant used a gun." (Dominguez, supra, 38 Cal.App.4th at p. 422.)
In People v. Jacobs (1987) 193 Cal.App.3d 375, 378 (Jacobs), the defendant was test-driving a Mustang in which the victim, a car salesman, was a passenger. The defendant told the victim that he had a gun. (Id. at p. 379.) The victim heard the sound of the cocking of a hammer, but never saw the gun. (Ibid.) More than a week later, the defendant was found alone in the Mustang, with a gun in his possession. (Ibid.) The victim, who was familiar with guns, testified that he was positive that the defendant had a gun during the incident, and that the cocking sound on the gun found in the Mustang was the same sound that he heard during the test-drive. (Ibid.) The Jacobs court concluded that this evidence was sufficient to support a section 12022.5 firearm enhancement. (Jacobs, supra, 193 Cal.App.3d at p. 380.)
3. Analysis
In this case, Salcedo and Benavides both testified that they saw Leon display a gun while he was just a few feet away from them, threatening to shoot them. Salcedo was able to provide a basic description of the gun, and both Salcedo and Benavides described the color of the gun. Under the cases discussed above, this testimony was sufficient to prove the section 12022.5 enhancement.
F. The trial court did not err in denying Leons motion for a new trial on count 2 due to jury misconduct
Leon claims that the trial court erred in denying his motion for new trial on the ground that the jury committed misconduct in failing to deliberate on the gang enhancement allegation on count 2, and that this error resulted in a violation of his right to a unanimous jury verdict.
1. Standard of review
In People v. Ault (2004) 33 Cal.4th 1250, the Supreme Court outlined the standard of review to be applied in reviewing an order denying a motion for new trial on the ground of alleged jury misconduct, as follows: " We accept the trial courts credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate courts independent determination. [Citation.]" (Id. at p. 1263, quoting People v. Nesler (1997) 16 Cal.4th 561, 582 (lead opn. of George, C.J.).)
2. Factual and procedural background
On December 23, 2004, the court received a partial verdict from the jury. The jury returned a verdict on count 2 as to Leon and on count 5, which pertained only to Fletes. The court clerk read the verdicts in open court, including a verdict pertaining to the gang enhancement allegation on count 2. The court then asked the jury panel, "Ladies and gentlemen, the verdicts as read, were they and are they your verdicts?" The jury panel responded, "Yes, your honor." The court inquired whether any of the parties wished to poll the jury. Leons counsel, Fletess counsel, and the People all responded in the negative. The clerk subsequently recorded the verdicts.
The court then excused one of the jurors, who had a preplanned vacation, and informed the jury that the court would replace the departing juror with an alternate juror. Immediately thereafter, juror No. 5 inquired whether there was a gang enhancement attached to count 5. The court stated that the verdict on count 5 included a gang enhancement. Juror No. 5 stated that she did not agree with the gang enhancement. The court polled the remaining 11 jurors as to the verdicts on count 2, including the substantive count and the gang and firearm enhancement allegations. All 11 jurors individually expressed their agreement with the verdicts. The court then polled the remaining jurors as to count 5. As to the gang enhancement portion of the verdict, four jurors, including juror No. 5 and juror No. 12, expressed their disagreement with the verdict. When asked whether he or she agreed with the verdict, juror No. 12 stated:
"I apologize. We did not deliberate on that issue, nor did we deliberate on that issue on the charge for Mr. Leon. And so it was never — when the charge was read in there, we did not discuss those issues. Im having to decide right now on the spot."
After juror No. 12 made these comments, the court again polled the remaining jurors as to count 2. All of the remaining jurors indicated their agreement with the verdict on both the substantive count and the firearm allegation. All of the remaining jurors, with the exception of juror No. 12, indicated that they agreed with the verdict on the gang enhancement allegation. Juror No. 12 stated that he or she did not recall having deliberated on the gang enhancement allegation, and stated, "I know that we did not discuss it, to my recollection." After this exchange, the court released the jury for the weekend.
The court then discussed with counsel various options with respect to how to handle the situation, including the possibility of having the new jury reconsider counts 2 and 5, and/or the gang enhancement on counts 2 and 5. The court decided that it would take no immediate action and that it would allow counsel to conduct research over the weekend as to the appropriate course of action.
The following Monday, outside the presence of the jury, the court heard further argument from all parties as to how to deal with the verdicts on counts 2 and 5. Fletes argued that the most prudent way to proceed would be for the prosecutor to dismiss the gang allegations as to counts 2 and 5 and to allow the new jury to consider the remaining counts. Leon moved for a mistrial on count 2 on the ground of jury misconduct. The prosecutor noted that the verdicts on counts 2 and 5 had been recorded, but suggested as an alternative that the court allow the new jury to consider the gang enhancement allegations on counts 2 and 5.
After hearing further argument, the court stated that it had researched the issue, that the verdicts were final verdicts, and that the court would not ask the jury to reconsider the verdicts on count 2 or count 5. The court noted that if there had been misconduct in the form of the failure of the jury to deliberate, the proper course of action would be for the court to grant a new trial on the gang enhancement allegations. The court informed Fletes and Leon that it would entertain a motion for a new trial on the gang enhancement allegations. While making its ruling, the court stated: "I think the only way we will know what happened is actually to bring the foreman in and to find out what the foremans recollection is of the process that they went through. Did they deliberate on these issues? Did they talk about these issues? And more than that, when they took their vote, what did they think they were voting on?"
Fletess counsel stated that some of the other jurors might have a different recollection of events from that of the foreman. However, Fletess counsel said that they would "leave [that issue] for another day to talk to them about what was actually done." The prosecutor concurred, stating, "I think that if there is going to be any inquiry, we should wait [until] the conclusion of deliberations." Leons counsel stated that he agreed that if an inquiry were to be done, each juror should be questioned individually. The court agreed that any inquiry of the jurors would have to be done out of the presence of the other jurors and stated, "We still may have to do that at the end of the trial."
In a supplemental motion for a new trial, Leon argued that a new trial was warranted on the gang allegation on count 2 on the ground that the jury failed to deliberate on the allegation. Leon argued that the court minutes for December 23, 2004 indicated that two jurors informed the court that no deliberations had taken place on the gang allegation on count 2. Leon attached a private investigators report that recounted hearsay statements made by juror No. 5 during a May 23, 2005 interview with the investigator and the prosecutor. During the interview, juror No. 5 stated that the jury had not deliberated on the gang enhancement allegation on count 2. Leon did not cite the investigators report in his motion.
The document in the record is not file stamped, but indicates that it was prepared for a January 27, 2006 hearing.
The December 23, 2004 court minutes indicate that after the verdicts had been recorded, the court polled the remaining 11 jurors on the gang allegation on count 2. According to the minutes, nine jurors affirmed the gang allegation verdict. The December 23, 2004 reporters transcript indicates that only one juror, juror No. 12, registered any disagreement with the gang enhancement verdict on count 2.
The court denied the motion for a new trial. The court noted that during the postverdict polling, at least nine of the jurors indicated that the jury had deliberated on the gang enhancement allegations. The court ruled, "Theres really nothing presented before me that would indicate theres any reason in law or fact for the court to overturn the recorded jury verdicts. . . ."
3. Governing law
Section 1181 provides in relevant part:
"When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only:
[¶] . . . [¶]
"3. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented;
"4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors . . . ."
Ordinarily, a trial court may "accord[] little, if any, credence to the assertions [a] juror would not verify," by way of a declaration attesting to juror misconduct. (People v. Hayes (1999) 21 Cal.4th 1211, 1256 (Hayes).)
4. There is substantial evidence to support the trial courts implicit determination that no jury misconduct occurred
One juror, juror No. 12, expressed his or her view in open court that the jury had not deliberated on the gang enhancement allegation charged as to count 2. The record also includes hearsay statements from a second juror, juror No. 5, that the jury did not deliberate on the gang enhancement allegation in count 2. The record contains no sworn statements attesting to jury misconduct. Further, when the court polled the jury, 10 of 11 jurors manifested their assent to the gang enhancement verdict on count 2. This occurred immediately after juror No. 12 stated that the jury had not deliberated as to that allegation.
We conclude that there is substantial evidence to support the trial courts implicit determination that no jury misconduct occurred. Accordingly, we conclude that the trial court did not err in denying Leons motion for a new trial.
We emphasize that we conclude in this opinion only that the trial court did not err in denying the motion for a new trial on the ground of juror misconduct. Leon does not claim on appeal that the court erred in failing to make an adequate inquiry into possible juror misconduct. In Hayes, supra, 21 Cal.4th at p. 1255, the Supreme Court stated, "When a trial court is aware of possible juror misconduct, the court must "make whatever inquiry is reasonably necessary" to resolve the matter. [Citation.] It must do so, however, only when the defense comes forward with evidence that demonstrates a strong possibility of prejudicial misconduct. [Citation.]"
In light of the serious nature of the alleged misconduct in this case, the timing of the claims, and the fact that several jurors indicated that there had been no deliberations on the gang enhancement allegation on count 5 notwithstanding their verdict on that allegation, the trial court would have been well advised to have conducted an inquiry with respect to the alleged misconduct, after the close of deliberations. The record indicates that the court contemplated conducting such an inquiry, but does not indicate that it ever did so. However, we need not consider whether the trial court committed reversible error in failing to conduct further inquiry into the alleged jury misconduct, since Leon does not raise this claim on appeal.
G. The abstract of judgment must be corrected on resentencing
Leon claims that the abstract of judgment fails to indicate that the trial court stayed imposition of the sentence on count 2 and the gang and firearm enhancements attached to that count pursuant to section 654. The People concede the error.
We agree that the abstract of judgment must be corrected. The trial court may do so upon resentencing, as discussed in part III.H., post.
H. The judgment in this case is affirmed, but the matter must be remanded for resentencing in light of our disposition in D048304
In addition to the sentence imposed in this case (People v. Leon (Super. Ct. San Diego County, 2006, SCS179354)) (SCS179354), the trial court also imposed sentence in another case (People v. Leon (Super. Ct. San Diego County, 2006, SCS176087)) (SCS176087). The court ordered that sentence to be served consecutively to the sentence in this case. Leon filed a separate appeal in SCS176087 (People v. Leon (D048304, app. pending) (D048304). We ordered that the appeal in D048304 be considered with the appeal in this case (D048306). We are remanding for resentencing in D048304, by way of a separate opinion that we are filing simultaneously with this opinion.
In light of the fact that the sentences in D048304 and in this case stem from the same final judgment, and in light of our disposition of the appeal in D048304, we must remand this matter for resentencing. At resentencing, in SCS179354, the trial court is directed to resentence Leon on counts 1 and 2. At resentencing, in SCS176087, the trial court is directed to resentence Leon on counts 1, 3, and 4.
IV.
DISPOSITION
The judgment is affirmed. The sentence is vacated and the matter is remanded for resentencing in accordance with our directions in part III.H., ante.
We Concur:
HUFFMAN, Acting P. J.
NARES, J.