Opinion
G044328
10-31-2011
THE PEOPLE, Plaintiff and Respondent, v. JASON ALEXANDER MAHONEY, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kristine Gutierrez and Lise S. Jacobson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09ZF0068)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed in part and reversed in part, and remanded for resentencing.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kristine Gutierrez and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Jason Alexander Mahoney of carrying a concealed firearm in a car while being an active gang member (count 1) (Pen. Code, §§ 12025, subds. (a)(3) & (b)(3), 186.22, subd. (b)(1)); felon in possession of a firearm (count 2) (§ 12021, subd. (a)(1)); second degree commercial burglary (count 3) (§§ 459, 460, subd. (b)); grand theft (count 4) (§ 487, subd. (a)); and street terrorism (count 5) (§ 186.22, subd. (a)). In addition, as to counts 1 through 4, the jury found defendant committed the crimes for the benefit of a criminal street gang. The court found he had suffered two prior strike convictions (§§ 667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)), two prior serious felony convictions (§ 667, subd. (a)(1)), and one prior prison term (§ 667.5, subd. (b)). The court denied defendant's motion to dismiss his prior strike convictions and sentenced defendant to prison for a total term of 35 years to life (comprised of 25 years to life on count 1, concurrent terms of 25 years to life on counts 3 and 5, and 10 years for the two prior serious felony convictions). The court imposed sentences of 25 years to life on each of counts 2 and 4, but stayed execution thereof pursuant to section 654. The court also imposed three year sentences on each of the gang enhancements, but stayed execution pursuant to section 654. The court struck the prior prison term enhancement.
All statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant alleges: (1) juror misconduct; (2) jury instructional error; (3) erroneous admission of gang evidence; (4) wrongful failure to dismiss a prior strike conviction; (5) duplicate punishment for street terrorism and burglary; and (6) insufficient value of stolen goods for grand theft. As we shall explain, we agree that defendant's street terrorism sentence must be stayed and his grand theft conviction reduced to petty theft. In all other respects, we affirm the judgment.
FACTS
On April 22, 2008, defendant, a convicted felon, was an active member of Public Enemy Number One (PENI or PEN1), a White supremacist criminal control gang. On that date, he traveled from his home in Northern California to a Garden Grove hotel room, where he arrived at around 4:30 p.m. and visited with his son and his son's mother, Cindy Morphis.
About 30 minutes later, some friends of defendant arrived, including Keith Bird (an active participant in PENI) and Adam and Travis Blancarte (brothers who were associated with PENI). Defendant, Morphis, and their son left the hotel room and got in Morphis's car. At the time, Morphis noticed that defendant had a backpack. Defendant's friends got in a truck and followed Morphis's car. Defendant and Morphis dropped their son off at Morphis's mother's house.
The group then went to Fitzgerald's Irish Pub (Fitzgerald's), a sports bar owned by a friend of Morphis. After about an hour of drinking at Fitzgerald's, the group went to the beach.
About an hour later, the group returned to Fitzgerald's. Defendant and Bird removed from Fitzgerald's kitchen some beer and food valued at $442, without the permission of the pub's owner or of the only employee working there at the time. (The theft was videotaped by Fitzgerald's surveillance system.) Defendant told Morphis (who was sitting at the bar drinking) that they had to leave the pub. This upset her because she was having fun and there "was no reason to leave."
As Morphis drove them away in her car, defendant told her "they had taken some stuff." Morphis was very angry because the pub's owner was her friend. She stopped at an intersection and told defendant to get out of the car. Defendant took his backpack and sat on the curb. Morphis drove about a block away and then came back and honked her horn. Defendant ran to the driver's side, reached in, and choked Morphis for a few seconds as she continued honking her horn.
A police officer drove by in an unmarked car. He saw defendant standing near the open driver's side door of Morphis's car. The officer thought defendant saw him. Defendant bent over and grabbed a bag from the ground and walked to the passenger side of the car. Morphis saw the unmarked police car. Defendant got in the car and said, "Drive." The officer followed Morphis's car as it drove away.
After seeing Morphis violate two Vehicle Code provisions, the officer turned on his emergency lights. Defendant told Morphis, "Go." Morphis drove at a fast pace, then pulled over and stopped. When Morphis opened her window, the officer smelled alcohol and saw that defendant appeared intoxicated. In response to the officer's questioning, defendant said he had no identification and his name was "John Visser."
During a consensual search of the car, the officer found an open backpack in the back seat. In the backpack, the officer saw a zippered pistol case, a small duffle bag containing 13 bullets, five unopened cans of beers, and one open can of beer. The beer cans were cold to the touch. Under the front passenger seat, the officer immediately spotted a .357 magnum revolver. The gun was loaded with live ammunition and wet with beer. Morphis told the officer that she did not know defendant had a gun until the officer pulled them over and defendant told her about the weapon. Later, at the police station, the officer thoroughly searched the backpack and found, inter alia, a wallet with a social security card and parole discharge card bearing defendant's name, a credit card bearing defendant's name and photograph, some letters, Valentine's cards, deodorant, and a toothbrush.
Gang Evidence
The People's gang expert, District Attorney Investigator Michael Riley, testified that PENI started out in the late 1980's as a crew, i.e., a group that enjoyed listening to music, partying, getting drunk, and fighting. The crew adopted the name, PENI, from a punk band named Rudimentary PENI. In the 1990's, the crew evolved into a White supremacist street gang that became more involved in criminal activity (including drug use and sales) resulting in some incarcerations. On April 22, 2008, PENI had between 250 and 300 members.
White racist gangs cover the spectrum ranging from, on the one end, White nationalists who believe in the purity of the Aryan race and spurn the use of drugs, to, on the other end of the spectrum, criminal control prison gangs whose members are heavily addicted to drugs and control the flow of drugs into and out of the prison system. PENI is on the criminal control side of the spectrum, but does most of its recruiting from White supremacists in prison.
Signs and symbols associated with the PENI gang include PENI, PENI Death Squad, PDS, 737, and a "P" hand sign. Symbols more generic to White racist gangs include swastikas, lightning bolts, the number 88 (which refers to Heil Hitler), and the number 14 (which refers to 14 words about protecting the race for the future). PENI's primary activities on April 22, 2008, were attempted murder, felony assault, mayhem, robbery, burglary, identity theft, fraud, forgery, and possession of firearms. Four active participants in PENI were convicted of the following predicate crimes, respectively: aggravated assault in March 2000; murder in January 2003; witness intimidation, second degree robbery, and making criminal threats in March 2006; and second degree murder in June 2006.
Riley also testified about defendant's involvement in PENI. In December 2000, law enforcement contacted defendant with another White supremacist gang member. In 2004, law enforcement contacted defendant with a documented PENI associate. In June 2007, law enforcement contacted defendant (with Travis Blancarte) leaving the home of a self-admitted PENI gang member. In 2007, defendant admitted to the police that he was a former PENI gang member. On August 8, 2007, Riley saw defendant associating with James "Ripper" Hunt, a PENI "shot caller," i.e., a PENI decision maker. Later that day, Morphis and defendant (who was dressed in standard White supremacist gang attire) were stopped in a car together. Morphis told Riley she had previously associated with PENI, but discontinued her association due to her child. When Riley asked defendant about PENI, defendant claimed he had made mistakes when he was younger, but denied being an active gang member. Two days later, on August 10, 2007, defendant was stopped with Bird.
Defendant's tattoos included the following: "PDS" on his stomach; a swastika interlaced with "PENI" on his left, upper chest; a demon figure associated with White supremacist gangs on his right, upper chest; "PENI" in cursive with a swastika for the dot on the "I," and an infant demonic figure with "P" in its eye and "PENI" in block letters, on his right calf; an infant demonic figure injecting a needle in its arm; "PENI Death Squad," with the "I" dotted with a swastika, from his right shoulder to right elbow; a picture of the Norse god Thor (associated with White supremacists) on his left arm; a picture of Thor's hammer and a logo of a band associated with White supremacists on his lower forearm; "88" (which can stand for Heil Hitler) on his right wrist; a skull head with lightning bolts in the eyes (originating from a Nazi SS symbol) on his right arm; and a totenkopf (a Nazi death head symbol) on the right arm. Riley testified that a person not actively participating in PENI who continued to sport PENI tattoos, could be physically assaulted and subjected to forced removal of the tattoos.
Riley identified defendant in a photograph with Bird and the Blancarte brothers taken on May 31, 2007. In the photograph, defendant flashed the PENI "P" hand sign. Riley also identified defendant making the "P" sign in a photograph with Hunt taken nine days later.
In August 2007, law enforcement found a letter from Hunt to another PENI member, in which Hunt wrote, "'Comrade J. Knuckles from the family lives three houses away from my mom's pad so that's coolest buck. He sends all his rudimentary love, loyalties and honor to you[.]'" Defendant's moniker is "Knuckles," based on his reputation for carrying brass knuckles.
One letter seized from defendant's backpack had the name "Knucklehead" on the greeting line (a variation of defendant's moniker "Knuckles") and mentioned other monikers known to Riley. The police also found a list of addresses in the backpack. The addresses included PENI member Kory "Kordo" Shaw, who suffered a felony assault conviction in 2000.
A "roll call" is a list of active members of a gang (not all-inclusive). On September 13, 2008, law enforcement at the Orange County jail confiscated a "roll call" passed between two inmates who were PENI members. The roll call listed defendant as a member of the Inland Empire section of PENI. Riley believed the list contained only the names of members in good standing.
Riley opined defendant was an active member and participant in PENI on April 22, 2008, based on defendant's prior contacts with Riley and other law enforcement officers, defendant's tattoos, and his consistent association with other members of PENI. On August 8, 2007, Riley had personally served defendant with a STEP notification, advising defendant that PENI was a criminal street gang. Based on the service of that notice, Riley furthered opined that defendant knew of PENI's pattern of criminal activity. Riley — when presented with hypothetical questions based on the facts of the burglary, theft, and gun possession in this case — opined the crimes were committed with the intent to promote, further, and assist PENI gang members in committing felonies and were committed for the benefit of PENI. Riley explained that all four PENI members and participants would benefit from the burglary and theft and that PENI would benefit from the gun possession because the gun could be used to evade capture and commit other crimes on the street.
"STEP" is an acronym for the California Street Terrorism Enforcement and Prevention Act, section 186.20 et seq.
Defense
Defendant testified on his own behalf. He claimed he joined PENI for protection while serving an 18- to 20-month prison sentence, and that he obtained his tattoos at that time. In 2002, after being paroled from prison, defendant retired from the gang and moved from Riverside to Northern California with Morphis and their son. He wanted to have his tattoos removed but did not have the money to do so.
In the summer of 2007, defendant worked for Adam Blancarte's business in Riverside, "You Deserve It Home Services." When he sees his former fellow gang members while working in Southern California or while visiting his son, he has to "keep it cool with them, basically for the safety of [his] family," and because he does not "want to be targeted or labeled as a traitor." Nonetheless, he is retired from the gang and no longer participates in gang activities.
With respect to the charged theft, defendant claimed that a bar employee (a "long haired guy") asked Bird and defendant to help him load food and beer into his truck. In return, defendant believed that the man bought them a pitcher of beer. Later, when the "guy kind of disappeared," defendant realized he and Bird might have "been set up" and told Morphis they had to leave.
Defendant denied that Bird was then an active PENI member and stated that to his knowledge Bird was not an active participant in the gang. Defendant thought that Bird sat in the front seat of Morphis's car on the ride from the beach to Fitzgerald's. Defendant testified he did not know there was a firearm in Morphis's car. He stated the backpack was not his and he did not know that it contained ammunition. He claimed the backpack was a "community backpack" they used at the beach to carry beer. When he started drinking, he gave his letters and his wallet to Morphis so he wouldn't lose them; he believed Morphis put them in the backpack. Defendant also denied choking Morphis or identifying himself as "John Visser."
On cross-examination, defendant admitted making a "Heil Hitler" salute in a photograph he took with Hunt on June 9, 2007. He explained that he was working with Hunt and felt he had to go along with the salute. Defendant also admitted "throwing a P gang sign" in a photograph with Adam Blancarte, Hunt, and other people taken that same day. Defendant also identified himself in a picture taken with Bird, the Blancarte brothers, and others on July 4, 2007. Defendant admitted that he facilitated some illegal communication between two individuals associated with PENI in April 2010. He also admitted suffering three prior felony convictions for offenses involving moral turpitude and being re-incarcerated for violating the terms of his parole.
Rebuttal
Riley testified that not all White male prisoners in the California Department of Corrections end up getting involved with White racist gangs. Riley's testimony also established that defendant had a PENI Death Squad tattoo on his right arm before his incarceration.
The prosecutor played a portion of an officer's recorded conversation with defendant, during which defendant claimed his name was "John Visser" and provided a date of birth. A records check revealed the existence of an individual named John Visser with that birth date.
DISCUSSION
Defendant Was Not Prejudiced by Any Juror Misconduct
Defendant contends the court prejudicially erred by denying his motions for a mistrial based on jury misconduct. He asserts a juror committed misconduct by commenting on defendant's testimony during a recess and prejudging his credibility.
Background
Prior to opening statements, the court instructed the jury: (1) not to talk with anyone during the trial about the case or about any person or subject involved in the case; and (2) not to talk "about these things with the other jurors" until after all evidence had been presented, the attorneys had completed their arguments, the judge had instructed the jury on the law, and the jurors had begun their deliberations. The court reinforced these instructions by stating: "Remember, do not talk about the case or about any of the people or any subject involved in it with anyone including the other jurors. Do not make up your mind about the verdict or any issue until after you have discussed the case with the other jurors during deliberations. Ladies and gentlemen, that's called a separation admonishment, so every time that you separate for a break, I will not read that over and over again, but I will remind you by simply stating, ladies and gentlemen, don't forget the admonition."
Later, during a morning break, the prosecutor saw two jurors talking with a police officer who was waiting to testify as a prosecution witness. Outside the jury's presence, the court questioned the officer, who stated he was sitting on a bench when two jurors "began talking about the picture that was right behind [him] above [him]" and "about how small the police departments were back in the days." These jurors talked "about the difference between doing police work back then and what it is now." The officer told them the ratio of police to the city's population is still small. One juror mentioned disciplining a child with a "whupp[ing]"; the officer said that today "you get sued for police brutality or child abuse." The court then questioned Juror Nos. 115 and 126, whose accounts of their conversation with the officer were consistent with the officer's testimony. The court admonished both jurors about the importance of avoiding the appearance of impropriety.
Defense counsel then moved for a mistrial, arguing that the officer's credibility was critical because he was the People's main witness on defendant's knowledge of the gun in the car. The court denied the motion. The court found the subject matter of the conversation to be "innocuous, related to . . . an old, old photo of a police force out in our hallway, and given the age of the jurors, a discussion of [a] different parenting style borne of the [eras] they grew up in as opposed to the [era] of the younger officer."
The prosecutor then informed the court that a District Attorney's investigator had seen two female spectators with ties to PENI talking with Juror No. 115. The court questioned Juror No. 115, who testified that the women asked him if his "name was something, and [he] told them no." The women "asked because [he] looked like that person."
Defense counsel again moved for a mistrial. The court denied the motion, finding the brief conversation was "innocuous." The court ordered the two women to be excluded from the courtroom.
The court called in the jury and admonished the jurors not to talk with anyone except for other jurors, because such nonjurors were probably involved with the case.
Later, outside the jury's presence, a jury services clerk (whose job was to orient, assign, and otherwise work with jurors) testified as follows. During the recess taken after the conclusion of defendant's direct examination, she saw about five jurors conversing in the jury assembly room. When it was time for the jurors to return to the courtroom, a female juror — Juror No. 190 — approached the clerk and asked her to request the judge to remind the jurors they should not talk about the case during their breaks.
Juror No. 190 then testified that, while walking to the jury assembly room during the break, she heard four male jurors talking quietly for "a couple seconds." Although she could only "pick[] out a couple words here and there," she was "pretty sure" they were talking about the trial. Juror No. 190 told the group they were not supposed to talk until they deliberated. One male juror said, '"We can talk to other jurors.'" This was the only time Juror No. 190 had heard jurors possibly talking about the case.
The court then stated it would call in each remaining juror individually to learn what they had heard. Defense counsel again moved for a mistrial. The court denied the motion but advised defense counsel he could renew it once the court completed its duty to investigate.
Juror No. 126 said that, as he walked with a group of jurors to the assembly room, he asked them what the judge had said about when the case '"would be wrapped up.'" A male juror replied, '"Well, maybe you shouldn't be talking.'" Juror No. 126 said, '"Well, I'm really not into the case; I'm just asking what the judge actually said.'"
Juror No. 185 testified that, as he walked with some other jurors toward the jury assembly room, he said, "'I think this is going to go a little bit longer.'" The other jurors ignored the comment. Juror No. 185 did not hear any other discussions among the jurors.
Juror No. 109 recalled that, as a couple of them walked out, there "was a comment made about some of the statements that the defendant had made," "[b]asically about the testimony of other people and how his testimony was contradictory to theirs and if we were all to assume that they were not being truthful." She did not recall how the conversation started but did remember commenting about whether they were "supposed to just believe that everyone else wasn't telling the truth." Juror No. 109 did not "recall that anyone said that they did or didn't believe anyone"; "[i]t was more just like, 'What are we supposed to believe?'" based on the testimony that they had heard. She then walked ahead to separate herself from the group because of the court's admonition.
Juror No. 157 overheard somebody say '"some of the stuff we heard was surprising or just not expected.'" He heard someone else mention that it seemed like the case might take longer than expected. He did not hear any other juror admonish these jurors or tell them they should not talk about it.
Juror No. 199 was sitting on a bench when Juror No. 115 said he thought '"they're just going to do some closing arguments and something." Juror No. 199 told Juror No. 115, '"Hey, we're not supposed to be talking about this.'" Juror No. 199 recalled that Juror No. 126 engaged in the conversation "[a] little bit" and "even brought [the subject] up."
Juror No. 115, sitting on a bench outside the courtroom toward the end of the break, heard a juror say, '"Not supposed to be talking about that.'"
Juror Nos. 141, 144, 181, 193 and Alternate Juror Nos. 128 and 191 did not hear anyone discussing the case or admonishing other jurors.
After the court finished examining the jurors, defense counsel again moved for a mistrial, arguing that juror misconduct was continuing to occur (despite the court's admonition) and had caused one juror to talk to the jury clerk and another to walk away. The court reserved ruling on the motion until the next morning. But, before excusing the jurors and the alternates for the evening, the court admonished them: '"Remember not to talk about the case or about any of the people or any subject involved in it with anyone, including the other jurors. Do not make up your mind about the verdict or any issue until after you have discussed the case with the other jurors during deliberation.'" The court stated that the admonishment held "true, not only for that which you have heard in this courtroom as it pertains to the evidence that you have heard, but it should hold true also to anything that I have said about the case. [¶] And when I say 'anything that I have said about the case,' it's not that I've commented on the case or indicated to you how I think you should rule or how you should go about your job — the comments that I may have made on a whole variety of topics, whether it be scheduling or when we're going to get done or not get done or things of that nature."
The next morning, the court individually admonished each juror and alternate juror to not discuss the case with anyone, including other jurors, and to not prejudge the case, and asked each person if he or she could follow the admonition. All the jurors and alternates said they could abide by the admonition; the court noted each person seemed sincere and forthright in demeanor and reply.
Defense counsel argued that serious jury misconduct had occurred because three or four jurors had pre-deliberated and ignored the court's admonition. He argued the only way to cure the prejudice would be to ascertain which jurors had discussed defendant's testimony and remove them from the jury.
The court declined to remove any jurors and denied defendant's mistrial motion. The court noted: The jury services clerk did not hear any jurors talking about the case. Juror No. 190 was not sure what she heard and could not really hear what the other jurors were saying. Other jurors overheard or participated in conversations concerning scheduling and the length of the trial and what the judge had said. Juror No. 109 made statements "about the contrary nature of the evidence they've heard so far and how they are going to have to go about doing their job, but didn't start that job. But certainly made note of the fact that we have, as in probably every case, a situation where we're going to have different stories and we're going to have to figure out how to do it. [¶] But other than making a brief, momentary comment of the quandary or the challenge they are going to face and having to determine which side to believe, I don't think that short, momentary comment rose to a level or went into a discussion or deliberation, nor did it appear to express any opinions [on] credibility or believability as to one person or the other. [¶] And mindful of the admonition, Juror [No.] 109 separated herself so that nothing further would be spoken about."
The court found that misconduct had occurred because the court's admonition was not followed, but that the misconduct did not rise to a level of good cause to excuse the jurors or grant a mistrial. The court felt that its instruction and admonition to each individual juror cured any potential prejudice. The court found that no juror's impartiality had been affected nor had any juror been influenced by what happened. The court further found the evidence did not demonstrate a substantial likelihood of prejudice or that any juror was biased against defendant.
No prejudicial juror misconduct occurred
"A defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors." (People v. Nesler (1997) 16 Cal.4th 561, 578.) "An impartial juror is someone 'capable and willing to decide the case solely on the evidence' presented at trial." (Id. at p. 581.) Thus, a juror commits misconduct by prejudging a case. (People v. Leonard (2007) 40 Cal.4th 1370, 1412.) Furthermore, "[j]urors are prohibited by law from discussing the case until all the evidence has been presented, the trial court instructs the jury, and the jury has retired to deliberate." (People v. Wilson (2008) 44 Cal.4th 758, 838 (Wilson).) Indeed, section 1122 requires the court, prior to the prosecutor's opening address and thereafter at each adjournment, to admonish the jurors not to "converse among themselves, or with anyone else, on any subject connected with the trial . . . ."
"'Misconduct by a juror . . . usually raises a rebuttable "presumption" of prejudice.'" (People v. Danks (2004) 32 Cal.4th 269, 302.) "'Among the factors to be considered when determining whether the presumption of prejudice has been rebutted are "the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued."'" (Wilson, supra, 44 Cal.4th at p. 839.) "The verdict will only be set aside if there appears to be a substantial likelihood of juror bias." (People v. Loker (2008) 44 Cal.4th 691, 747.)
On review, "[w]e accept the trial court's 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 court's independent determination." (People v. Nesler, supra, 16 Cal.4th at p. 582.)
Defendant argues that Juror No. 109 should have been well aware of her obligation not to discuss the case with anyone, given the court's many admonitions to the jury on this subject. He contends her failure to comply with these admonitions casts doubt on her willingness to follow the court's orders and to perform her duties as a juror. He interprets her comment (that his testimony contradicted that of other witnesses) as revealing that she had prejudged his credibility. He argues the failure of other jurors to testify they heard Juror No. 109's comments shows that some of them must have lied to the judge. Defendant concludes the court should have declared a mistrial or discharged Juror No. 109.
In his opening brief, defendant erroneously refers to Juror No. 109 as Juror No. 105.
The trial court's finding that juror misconduct occurred is supported by substantial evidence. Our independent review satisfies us that defendant was not prejudiced by such misconduct. The misconduct was brief and did not result in a substantial likelihood of juror bias. Juror No. 109's comment(s), though "a technical violation," was "solitary and fleeting," amounting to "one, possibly two sentences, spoken in rhetorical fashion and not in an obvious attempt to persuade anyone." (Wilson, supra, 44 Cal.4th at pp. 839-840.) As the trial court pointed out, Juror No. 109 simply observed that defendant's testimony conflicted with the other evidence and that the jurors would have to decide who to believe. By pointing out the quandary facing the jury, she neither suggested that she had prejudged defendant's credibility nor that she had even started the process toward making such a judgment. And, by quickly separating herself from the other jurors in her vicinity, she showed her awareness of and adherence to the court's admonition, and also minimized the risk she would influence other jurors. "'No trials are perfect — evidentiary or procedural errors are bound to occur' [citation], and while jurors are told not to discuss the case until all the evidence has been presented and instructions given, they are not precluded from thinking about the case, nor would that be humanly possible." (Ibid.; see also People v. Loker, supra, 44 Cal.4th at p. 749 ["discussions were brief"]; People v. Avila (2009) 46 Cal.4th 680, 727 ["discussion was not of any length or significance"].) Juror No. 109's misconduct did not rise to the level of that in People v. Brown (1976) 61 Cal.App.3d 476, 479 (on which defendant relies), where a juror told another juror, before the prosecution had completed its case, that the defendant was guilty and there was "'"no doubt about it,"'" and then "'moved his hand in an abrupt jester [sic] of finality.'"
Finally, defendant's speculation that other jurors lied about what they had heard or discussed is meritless. The court's factual findings about what the jurors and the jury services clerk heard or said are supported by substantial evidence.
The Court Did Not Abuse Its Discretion by Instructing the Jury on Moral Turpitude
Defendant argues the court's special jury instruction on moral turpitude was irrelevant and highly prejudicial.
Background
On direct examination, defendant testified he had served just one prison term and had successfully completed his subsequent parole. At a hearing outside the jury's presence, the prosecutor sought the court's leave to impeach defendant on cross-examination. Specifically, the prosecutor sought to present evidence that: (1) defendant served one prison term for his felony convictions of shooting at an occupied vehicle and making criminal threats; (2) violated his subsequent parole by possessing marijuana for sale; (3) was convicted of that offense; and (4) was returned to prison for the parole violation.
Defense counsel objected, arguing that the facts underlying defendant's criminal threats conviction were irrelevant and highly prejudicial. Defense counsel asked the court to limit the prosecutor to describing the priors only as "conviction[s] involving moral turpitude."
The prosecutor expressed concern the jury would not know how to define moral turpitude and that CALCRIM contains no definition for the term. The court ruled the People could refer to defendant's priors only "as felony convictions of crimes of moral turpitude" and stated it would define "moral turpitude" for the jury. Defense counsel asked that the People be restricted to referring to the priors as felony convictions, with no mention of moral turpitude.
The court, however, did not change its initial ruling, and proposed the following instruction on moral turpitude be given to the jury: "Moral turpitude constitutes a readiness to do evil, i.e., an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen or to society in general, contrary to accepted and customary rule of right and duty between people." Defense counsel objected, asking that the words "'criminal conduct'" be substituted for the word "'evil,'" and noting that "[t]he remainder of that section seems like it is straight out of Shakespeare . . . ." Thus, defendant asked that the instruction simply state: "'Moral turpitude constitutes a readiness to engage in criminal conduct.'" The prosecutor argued that defense counsel's suggestion would "lose the distinction between a regular felony and a moral turpitude felony . . . ." The court overruled the defendant's objection, and gave the instruction as proposed.
The court also instructed the jury: "If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of a witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable."
In the prosecutor's closing argument, he mentioned several times that defendant had three prior convictions for felonies of moral turpitude. The prosecutor stated: "[D]efendant has three moral turpitude convictions with which the court is going to tell you Monday morning is readiness to do evil, i.e., an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen or to society in general, contrary to accepted and customary rule of right and duty between people."
The court permissibly defined "moral turpitude" for the jury
"'[A]ssertions of instructional error are reviewed de novo.'" (People v. Lamer (2003) 110 Cal.App.4th 1463, 1469.) An appellate court independently reviews the wording of a jury instruction "and assesses whether the instruction accurately states the law." (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574.)
The jury instruction challenged here contained an accurate definition of moral turpitude. Crimes of moral turpitude fall into two groups: (1) crimes having dishonesty as an element; and (2) crimes evincing a "'"general readiness to do evil."'" (People v. Chavez (2000) 84 Cal.App.4th 25, 28.) This second group of crimes (those not requiring dishonesty as an element) encompasses "acts of 'baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.'" (Id. at pp. 28-29.) Crimes that evince a general readiness to do evil have "'"some 'tendency in reason' [citation] to shake one's confidence in [the perpetrator's] honesty."'" (Id. at p. 29.) If a defendant has previously committed such a crime, the jury may infer current perjury, based on "'the general proposition that he is of bad character and unworthy of credit.'" (People v. Castro (1985) 38 Cal.3d 301, 314.)
Despite the challenged instruction's accuracy, defendant argues the court erred by giving it to the jury. He asserts that, because the decision whether a prior conviction involves moral turpitude falls to the court (not the jury), the definition of moral turpitude was "irrelevant to the jury's determination of any issue." (People v. Gray (2007) 158 Cal.App.4th 635, 640 [the court, not the jury, decides "whether the conviction proposed as impeachment involves moral turpitude"].) Defendant also contends the instruction was highly prejudicial because it led the jury to believe he has a propensity to commit crime, in violation of his federal constitutional rights. In sum, defendant does not contest the admission into evidence of his prior convictions to impeach his testimony, but rather complains of the court's allowing the prosecutor to describe them as involving moral turpitude, and then defining that concept for the jury in the challenged instruction.
A trial court bears a sua sponte duty to instruct the jury on "'"the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case."'" (People v. Breverman (1998) 19 Cal.4th 142, 154.) Correlatively, a court must refrain from instructing on principles of law which are irrelevant to the issues raised by the evidence and which may confuse the jury. (People v. Satchell (1971) 6 Cal.3d 28, 33, fn. 10, overruled on another point in People v. Flood (1998) 18 Cal.4th 470, 484.) "In reviewing the purportedly erroneous instruction[], 'we inquire "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.' [Citations.] In conducting this inquiry, we are mindful that '"a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge."'" (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
While the definition of moral turpitude is not a "'"general principle[] of law governing the case"'" (People v. Breverman, supra, 19 Cal.4th at p. 154), under the facts of this particular case, it is nevertheless relevant to an issue raised by the evidence. And the definition became an issue because the court granted defendant's initial request to "sanitize" the nature of defendant's prior felony convictions by permitting the prosecutor to refer only to defendant's prior felonies of moral turpitude, rather than to his actual crimes. "[W]ithout any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case." (§ 1093, subd. (f).) The trial judge explained that "it has been this court's experience that jurors often ask during deliberations for a definition of moral turpitude."
(Cf. People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 [no sua sponte duty to give a limiting instruction on the use of evidence].)
A simple reference to defendant's prior felonies, without telling the jury what those felonies were, does little to inform the jury of the significance of the prior convictions in judging defendant's credibility as a witness. "No one denies that different felonies have different degrees of probative value on the issue of credibility. Some, such as perjury, are intimately connected with that issue; others, such as robbery and burglary, are somewhat less relevant; and '"[a]cts of violence . . . generally have little or no direct bearing on honesty and veracity."'" (People v. Rollo (1977) 20 Cal.3d 109, 118, superseded in part on a different but related point by Cal. Const., art. I, § 28, subd. (f), as recognized by People v. Castro, supra, 38 Cal.3d 301.) "[I]t is highly unlikely that a jury which is advised only that the defendant has been convicted of 'a felony' will let the matter rest. Normal human curiosity will inevitably lead to brisk speculation on the nature of that conviction, and the range of such speculation will be limited solely by the imaginations of the individual jurors. Some may assume, for example, that the defendant's prior conviction was similar to or identical with the charge for which he is on trial. Others may speculate that the conviction involved some form of unspeakable conduct, such as torture murder, gang rape, or child molestation. Why else, the jurors might naturally ask, was the name of the crime withheld from then?" (Id. at p. 119, fn. omitted.) Thus, telling the jury that the prior convictions were for crimes of moral turpitude at least gives the jury some information that may reduce the speculation, and may even be useful in considering defendant's credibility as a witness. But that information too is almost useless to the jury unless it understands what "moral turpitude" means.
Thus, defense counsel is often on the horns of a dilemma when the defendant with prior felonies chooses to testify. In this case, counsel had to decide: Is it preferable to have defendant's priors described to the jury as crimes of moral turpitude; or is it preferable to have the jury learn that defendant was convicted of making criminal threats and shooting at an occupied vehicle? Counsel made a rational choice, but that choice necessitated that "moral turpitude" be defined for the jury.
As to defendant's contention the instruction was highly prejudicial, the "jury received instruction regarding what it could use evidence of defendant's prior conviction[s] for, specifically, in determining his believability as a witness only," not as propensity evidence. (People v. Chavez, supra, 84 Cal.App.4th at p. 30.) Whenever "a jury is informed of a defendant's convictions, even for the limited purpose of impeaching his credibility, a danger exists that some jurors also will view that evidence as showing a defendant's propensity to commit crimes despite having been instructed not to do so." (People v. Gray, supra, 158 Cal.App.4th at p. 641.) Nonetheless, "'[n]o witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity.'" (Ibid.)
Finally, defendant argues "the jury had amply demonstrated its inability to follow other admonitions from the court," and therefore "it cannot be presumed that the panel followed the court's instructions to simply consider the convictions for the purposes of impeachment." But, as discussed above, the one instance of juror misconduct did not rise to the level where it appeared any juror had violated his or her oath or was incapable of performing his or her duties as a juror. (See In re Hitchings (1993) 6 Cal.4th 97, 120.) "'"The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions." [Citations.]'" (People v. Chavez, supra, 84 Cal.App.4th at pp. 30-31.) "'Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.'" (People v. Lewis (2001) 26 Cal.4th 334, 390.)
The definition of "moral turpitude" given to the jury dated from an 1884 decision by Justice Holmes "when he was still a member of the Supreme Judicial Court of Massachusetts" (People v. Castro, supra, 38 Cal.3d at p. 314 ["general readiness to do evil"]), and from a 1938 decision of the California Supreme Court (In re Craig (1938) 12 Cal.2d 93, 97 ["baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man"]). Although the definition of "moral turpitude" given to the jury is subject to criticism because it did not, by any means, comport with current efforts to instruct the jury in "plain English," we cannot say the court abused its discretion by instructing the jury in the same language used by the courts for the past century.
The Court Did Not Abuse Its Discretion by Admitting Evidence of Defendant's White Supremacist Ideology
Defendant contends the court abused its discretion under Evidence Code section 352 by admitting evidence that he "held offensive, racist[] beliefs, including multiple photographs of swastika tattoos, and other Nazi imagery, in addition to depictions of Heil Hitler salutes and [defendant] holding a copy of Mein Kapf." He argues this evidence was unduly prejudicial, as well as cumulative to other evidence of his gang affiliation. The Attorney General counters that the evidence was "highly probative on the issues of whether he was an active participant in PENI, whether he committed the charged offenses for the benefit of or in association with PENI, and whether his testimony that he left the gang in 2002 was credible."
Background
After the prosecutor showed Investigator Riley photographs of defendant's tattoos, he asked the gang expert about a photograph of Bird and two other people giving Heil Hitler salutes. Defense counsel objected to the photograph as irrelevant.
During a break, the prosecutor stated he planned to show about 15 photographs to demonstrate defendant's and Bird's pattern of association with PENI and to refute defendant's defense he moved to Northern California to get away from the gang. Defense counsel stated that for tactical reasons he had not objected earlier, but he now objected to the last 10 photographs because they were prejudicial and cumulative and because "it is not a crime to have tattoos on your body." Defense counsel acknowledged "some relevance to show . . . an association that endures," but argued: (1) the jury did not need to see 15 photographs; (2) photographs that did not include defendant should be excluded; and (3) Riley had already detailed defendant's association "in words." The court agreed they were "kind of getting into a cumulative, overkill type situation" and asked the prosecutor to pick out his top group of photographs and show them to defense counsel. Ultimately, the court ruled that only two photographs (dated in May and June of 2007) were admissible, as the others were more prejudicial than probative, but added that if the defense opened the door, the court would consider admitting additional photographs. The court also stated it planned to review the tattoo photographs before admitting them into evidence and anticipated some might be cumulative.
On direct examination defendant testified that, upon his parole in 2002, he met his then one-year-old son, retired from PENI, "moved to Northern California to get away from all that," and rejected the gang's ideology. On cross-examination, the prosecutor asked defendant about photographs of: defendant and Hunt (a PENI "shot caller") giving Nazi salutes on June 9, 2007; defendant throwing a "PENI gang sign" with Hunt and the Blancarte brothers on June 9, 2007; defendant, the Blancartes, and Bird on July 4, 2007; defendant holding a book entitled "The Life and Death of Adolf Hitler"; and defendant giving a Nazi salute with Bird.
On rebuttal, the prosecutor asked Riley about a photograph taken before defendant's incarceration which showed defendant (bearing a PENI Death Squad tattoo) and another PENI gang member.
Later, the court engaged in a lengthy and thorough review and discussion of the prosecution's exhibits. Defense counsel objected to most of the photographs on the basis they were cumulative, unduly prejudicial, and irrelevant because they were taken in 2007 (the year before the current offenses). The prosecutor countered that the evidence was highly probative because defendant claimed to have retired from PENI in 2002. The court noted the photographs were also relevant because the gang expert based his opinion on them. The court admitted many photographs (including the ones of defendant and Hunt making a Nazi salute, defendant and Bird making a Nazi salute, and defendant with a Hitler book), but excluded some photographs of tattoos as cumulative. The prosecutor withdrew some submissions, including the photograph of Bird and two other people giving Heil Hitler salutes.
The court did not abuse its discretion by admitting the challenged evidence
Evidence Code section 352 affords a court the discretion to "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." We review a court's rulings on the admissibility of evidence under the deferential standard of abuse of discretion, a standard "particularly appropriate" to questions of relevance and undue prejudice. (People v. Guerra (2006) 37 Cal.4th 1067, 1113; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) "Prejudicial" for purposes of Evidence Code section 352 "'is not synonymous with "damaging,'" but rather is reserved for "'evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.'" (People v. Bolin (1998) 18 Cal.4th 297, 320.) "Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Defendant contends the evidence of his possible White supremacist ideology was irrelevant and cumulative for the purpose of proving his active participation in PENI. His support for this contention is that: PENI falls on the criminal (as opposed to the ideological) side of the White supremacist gang spectrum; he admitted his prior membership in PENI; and the prosecution presented evidence of his association with PENI members and his PENI-specific tattoos. He further argues the evidence was highly prejudicial.
Defendant's contentions lack merit. The trial court did not abuse its discretion. Rather, it reasonably concluded that the disputed evidence's probative value was not substantially outweighed by a danger of undue consumption of time or undue prejudice. The evidence was relevant on many fronts: (1) to show defendant was currently an active participant in PENI (for purposes of the street terrorism charge); (2) to show he committed the crimes for the benefit of PENI (for purposes of the gang enhancements); (3) to show his state of mind in associating with PENI affiliates, i.e., that he shared their beliefs and motives, as opposed to merely staying "cool" with them; and (4) to impeach defendant's testimony he first got tattoos in prison for purposes of protection and that in 2002 he retired from PENI and rejected its philosophies. Defendant contends evidence of his swastika tattoos was cumulative to evidence of his PENI-specific tattoos. He fails to acknowledge, however, the swastikas were integrated into his PENI tattoos, e.g., dotting an "i." Moreover, Riley testified the swastika is a generic symbol common to all White racist gangs.
The court carefully scrutinized the evidence before ruling on its admissibility, a process covering over 50 pages of the reporter's transcript. The court exercised its discretion under Evidence Code section 352 to exclude some of the prosecution's proffered evidence as cumulative. Defendant has failed to show the court exercised its discretion in an arbitrary, capricious, or patently absurd manner.
Defendant's cited case, People v. Cardenas (1982) 31 Cal.3d 897, is inapposite since the evidence there clearly established that a neighborhood friendship existed between the defendant and his alibi witnesses. (Id. at pp. 902-904.) Our Supreme Court therefore held that further evidence they were members of the same gang was cumulative and inadmissible on the issue of possible witness bias. (Id. at pp. 904-905.) In addition, the case involved no gang charges or allegations. (Id. at p. 901.)
Defendant argues that People v. Leon (2008) 161 Cal.App.4th 149 "made clear that the fact of a gang allegation does not provide the prosecution carte blanche to introduce all evidence relevant to that determination, no matter the risk of prejudice." But Leon involved uncharged misconduct evidence, specifically the defendant's prior juvenile robbery true finding. (Id. at p. 164.) The trial court in Leon admitted evidence of the defendant's robbery adjudication solely as a predicate offense for establishing the existence of his criminal street gang for purposes of the charged gang-related offenses and alleged gang enhancements. (Id. at p. 165.) The appellate court found the court's admission of the defendant's robbery adjudication was erroneous because it was "'merely cumulative regarding an issue that was not reasonably subject to dispute,'" in light of two other predicate offenses (not committed by the defendant) establishing the gang's existence, and the overwhelming evidence the defendant was a gang member. (Id. at p. 169.) Here, defendant claimed to be retired from PENI at the time of the current offenses, and the nonideological evidence was not overwhelming that his claim was false.
Finally, defendant relies on People v. Williams (2009) 170 Cal.App.4th 587, for the proposition that the "sheer volume" of the evidence went beyond reasonable limits, but that case involved "evidence of dozens of prior crimes" (id. at p. 610) that would have "extended the trial . . . beyond reasonable limits" (id. at p. 611). That was not the case here.
The Trial Court Did Not Abuse Its Discretion by Denying Defendant's Invitation to Dismiss a Prior Strike Conviction
Defendant contends the trial court abused its discretion by denying his invitation under section 1385 to dismiss one of his prior strike convictions in the interest of justice. He argues his "record and history" indicate "he is not the type of unrepentant and unrelenting offender contemplated by the Three Strikes law." He asserts: he did not have an extensive criminal record and had spent little time in custody; he had family support and had pursued rehabilitative efforts, and "his prospects for the future were good."
Background
After finding the People's prior strike allegations to be true at a bifurcated trial, the court invited counsels' argument on defendant's section 1385 motion. The court had read defendant's motion and the People's opposition, as well as the points and authorities of both parties. Defense counsel argued that: (1) as to the current felonies, defendant did not have actual personal possession of the loaded gun in Morphis's car and did not use a weapon during the burglary at Fitzgerald's; (2) as to his 1998 strike conviction for discharging a firearm at an occupied vehicle, he was in a car from which another person fired a gun, resulting in a sentence for defendant of only 10 months in jail and probation; (3) his 2001 strike conviction for making criminal threats was "low grade" because he had simply yelled at a 15-year-old girl: "White power. What the [fuck] are you looking at? I'm going to come over [there] and [fuck you in the ass]. I'll rape and kill you, bitch"; (4) he had only been to prison once and for only a three-year term; (5) he is gainfully employed; and (6) he has supportive family and friends. Defense counsel urged the court to exercise its discretion and argued that a 20-year determinate sentence would be correct and just.
The prosecutor opposed the motion. He asserted that, when defendant "was caught with a loaded gun," "he was absconding from some 10 counts of identity theft, along with a gang charge . . . ."
The court denied defendant's motion. As to the nature of the current felony, the court found that defendant's constructive possession of the loaded gun (in the backpack in the back seat), as well as additional bullets, gave him easy access to the weapon for any purpose, including using it against Morphis or law enforcement. As to defendant's prior convictions, the court found the vehicle shooting was an aggravated crime (even though defendant was not the shooter) and the criminal threats incident "traumatized" the victim (causing her to fear for her life). The court noted defendant's "recidivism" in violating his probation eight times (four after his first strike conviction and four after his second strike conviction). The court stated: "So while he may not fit the classic model of somebody who is in a revolving door coming in and out of state prison, he is certainly an example of someone who would fall within the spirit of the Three Strikes law because of the continuing behavior" of violating probation. The court found insufficient mitigating factors to bring defendant outside the spirit of the Three Strikes law. The court stated: "Again, the defendant's record, prior violent felonies and this case, which is also a serious violent felony, certainly qualifies him for the sentencing enhancement dictated by the prior convictions."
The court did not abuse its discretion in declining defendant's invitation to dismiss a prior strike conviction
Section 1385, subdivision (a), authorizes a court, on its own motion or a prosecutor's application, "to strike prior felony conviction allegations in cases brought under the Three Strikes law" in furtherance of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).) "[A] defendant may invite the court to exercise its power . . . , and the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice." (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 441-442.) "[T]he underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences." (People v. Garcia (1999) 20 Cal.4th 490, 500.)
Our Supreme Court has set forth guidelines on "how trial and appellate courts should undertake to rule and review in this area." (People v. Williams (1998) 17 Cal.4th 148, 152.) When ruling on a section 1385 motion in the context of a Three Strikes case, a trial court must consider the defendant's constitutional rights and "the interests of society represented by the People . . . ." (Romero, supra, 13 Cal.4th at p. 530.) The court should take into account "'individualized considerations'" (id. at p. 531), such as "the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects" (Williams, at p. 161). The ultimate question is whether "the defendant may be deemed outside the [Three Strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Ibid.)
A trial court's section 1385 ruling is "subject to review under the deferential abuse of discretion standard." (People v. Carmony ( 2004) 33 Cal.4th 367, 374.) "In reviewing for abuse of discretion, [an appellate court must be] guided by two fundamental precepts." (Id. at p. 376.) "First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary."'" (Ibid.) "Second, a '"decision will not be reversed merely because reasonable people might disagree."'" (Id. at p. 377.) Because the Three Strikes law "creates a strong presumption that any sentence that conforms to [its] sentencing norms is both rational and proper," a trial court's decision not to strike a prior conviction will generally be upheld. (Id. at p. 378.) Abuse of discretion for failure to strike occurs only in "limited circumstances," such as where the trial court was unaware of its discretion or "considered impermissible factors" or in an "extraordinary case . . . where the relevant factors . . . manifestly support the striking of a prior conviction and no reasonable minds could differ . . . ." (Ibid.)
Here, the court did not abuse its discretion by declining defendant's invitation to dismiss one of his prior strike convictions. The court performed an individualized evaluation of the relevant factors under People v. Williams, supra, 17 Cal.4th 148. Defendant fails to show the court's ruling was irrational or arbitrary. Although the court in its final concluding sentence inaccurately referred to defendant's current offense as "a serious violent felony," this quick wrap-up statement was not the basis of the court's decision. Rather, the court based its decision on all the Williams factors as applied to this case, including an accurate assessment of the nature and circumstances of defendant's present felonies.
Defendant's Sentence for Street Terrorism Must Be Stayed Pursuant to Section 654
Defendant contends his concurrent prison terms for street terrorism and the underlying felony of commercial burglary constituted multiple punishments in violation of section 654 and therefore the court should have stayed execution of sentence on his street terrorism conviction. The Attorney General counters that: (1) the court properly imposed a concurrent term for street terrorism because defendant entertained separate intents and objectives in committing that crime and burglary; and (2) defendant's "interpretation of section 654 effectively renders section 186.22, subdivision (a), a nullity."
This issue is currently pending before our Supreme Court in People v. Mesa, review granted October 27, 2010, S185688.
--------
A conviction for street terrorism under section 186.22, subdivision (a), requires, inter alia, that the defendant have willfully promoted, furthered, or assisted "felonious criminal conduct" by members of his or her gang. (Italics added.) The court instructed the jury, as to the street terrorism charge against defendant, that "[f]elonious criminal conduct means committing or attempting to commit any of the following crimes: commercial burglary, grand theft, a felon in possession of a firearm." In closing argument, the prosecutor argued defendant committed felonious criminal conduct in order to assist PENI when he helped Bird burglarize Fitzgerald's.
Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Thus, section 654 operates to bar multiple punishments for a single, physical act (Neal v. State of California (1960) 55 Cal.2d 11, 19-21) or for an indivisible course of conduct, even though such conduct violates more than one statute (People v. Hicks (1993) 6 Cal.4th 784, 789). "'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'" (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
In People v. Sanchez (2009) 179 Cal.App.4th 1297, 1315-1316 (Sanchez), the appellate court held defendant could not be punished for street terrorism for the same felonious conduct used to support the underlying robbery convictions. Sanchez reasoned: "Here, the underlying robberies were the act that transformed mere gang membership — which, by itself, is not a crime — into the crime of gang participation. Accordingly, it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing the robberies." (Id. at p. 1315.)
We agree with Sanchez. "[T]he crucial fact is that the [burglary was] necessary to satisfy an element of the gang participation charge. [Citation.] Accordingly, almost by definition, defendant had to have the same intent and objective in committing [both] crimes." (Sanchez, supra, 179 Cal.App.4th at p. 1316.) Defendant cannot be punished twice for the same "felonious" conduct, regardless of multiple criminal objectives (i.e., defendant intended to steal the goods, and he intended to aid his gang by doing so). "[T]he fact that the defendant had multiple objectives did not necessarily mean that he had multiple independent objectives. Section 654 bars multiple punishment even if the defendant has '"multiple criminal objectives, "' as long as those objectives were not 'independent' but 'merely incidental to each other . . . .'" (Id. at p. 1314.)
We disagree with the Attorney General's assertion that Sanchez's interpretation of section 654 renders section 186.22, subdivision (a) (street terrorism), a nullity. The prosecution retains the option of relying on a felony not charged in the instant case to establish the felonious conduct element of the street terrorism crime. Even where section 654 bars multiple punishments, the court must impose the greater of the two sentences. And even if execution of sentence on a conviction is stayed under section 654, the conviction remains valid and could be charged in prosecutions of future offenses as a serious felony prior within the meaning of section 1192.7, potentially resulting in an additional five-year sentence.
The court must stay execution of sentence for defendant's street terrorism conviction pursuant to section 654.
Defendant's Grand Theft Conviction Should Be Reduced to Petty Theft
Effective January 1, 2011, section 487 defines the offense of grand theft as the taking of property valued at over $950. Here, the parties stipulated that the beer and food taken from Fitzgerald's was worth $442. The Attorney General agrees defendant's grand theft conviction should therefore be reduced to petty theft. (In re Estrada (1965) 63 Cal.2d 740, 748 ["where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed"].)
DISPOSITION
We affirm the convictions but reverse the judgment in part as follows: Defendant's conviction of grand theft, count 4, must be reduced to petty theft and defendant must be resentenced accordingly. The two-year term imposed on count 5, street terrorism, is ordered stayed pursuant to section 654.
IKOLA, J. I CONCUR: ARONSON, J. RYLAARSDAM, Acting P. J., Concurring:
I concur in the result of the lead opinion and with its reasoning except as to its application of Penal Code section 654 to the conviction for street terrorism. I write separately because I believe People v. Sanchez (2009) 179 Cal.App.4th 1297, the case on which the lead opinion relies to stay defendant's punishment for that crime, was wrongly decided.
Penal Code section 654, subdivision (a) bars multiple punishment for "[a]n act or omission that is punishable in different ways by different provisions of law." In Neal v. State of California (1960) 55 Cal.2d 11, the Supreme Court recognized "'[s]ection 654 has been applied not only where there was but one "act" in the ordinary sense . . . but also where a course of conduct violated more than one statute . . . .'" (Id. at p. 19.) In the latter scenario, "[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act . . . depends on the intent and objective of the actor." (Ibid.) Thus, where "all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Ibid.) Nonetheless, the Supreme Court has also recognized multiple punishment for a course of criminal conduct that violates more than one statute is permissible if the defendant "entertained multiple criminal objectives which were independent of and not merely incidental to each other," even where "the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639; see People v. Vu (2006) 143 Cal.App.4th 1009, 1034 [recognizing a defendant charged with street terrorism and other crimes can simultaneously harbor multiple and independent objectives].)
People v. Sanchez, supra, 179 Cal.App.4th 1297 rejected this approach in the context of a conviction for street terrorism. Acknowledging "the facts in this case . . . strongly support an argument that [the] defendant had a different intent and objective in committing the robberies than in committing gang participation," Sanchez nonetheless concluded the defendant could not be punished for both because "the robberies—even if not gang-motivated—were necessary to satisfy an element of the gang participation charge," and thus the "defendant had to have the same intent and objective in committing all of these crimes." (Id. at p. 1316.)
I disagree with Sanchez's analysis. It ignores not only the California Street Terrorism Enforcement and Prevention Act's (Pen. Code, § 186.20 et seq.) express purpose to "eradicat[e] . . . criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs" (Pen. Code, § 186.21), but also the Supreme Court's longstanding principles applicable to determine whether multiple punishment violates Penal Code section 654. Unless and until the Supreme Court says otherwise, we are constitutionally obligated to follow its pronouncements. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
That being said, I agree with my colleagues that, while here the defendant's "intent or objective could be parsed further into [an] intent to promote the gang and [a separate] intent to [burglarize the bar], those intents were not independent." (People v. Vu, supra, 143 Cal.App.4th at p. 1034.) Consequently, I agree he could not be separately punished for both crimes.
RYLAARSDAM, ACTING P. J.