Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 04CF1532 M. Marc Kelly, Judge.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellant was convicted of assault, shooting at an occupied vehicle and street terrorism. The jury also found true an enhancement allegation that appellant acted for the benefit of a criminal street gang. Appellant contends there is insufficient evidence to support his street terrorism conviction and the gang enhancement. He also contends that, pursuant to Penal Code section 654, the court should have stayed his sentence on the street terrorism count. We reject these contentions and, other than to correct an undisputed sentencing error, affirm the judgment in all respects.
All further statutory references are to the Penal Code.
FACTS
Luis Navarette, Monica Garcia, Mayra Castillo and Castillo’s toddler daughter attended a party in Santa Ana one evening. At the time, Castillo was married to Eduardo Ramirez, but she had recently separated from him and was living with Garcia. After the party, Navarette’s group, which now included Garcia’s boyfriend, went to a nearby eatery. While they were there, they noticed a Ford Expedition pass by the restaurant. Recognizing the Expedition as Ramirez’s vehicle, they left the restaurant at once and drove to Anaheim to drop off Garcia’s boyfriend. The Expedition followed them for a few blocks, but then dropped out of sight.
Later that evening, Navarette’s group returned to Santa Ana and went to a taco shop near Warner and Bristol. They ordered some food at the drive-thru with the idea of eating it in Navarette’s vehicle in the parking lot. However, after they got their food, they realized they didn’t have any napkins, so Garcia and Castillo walked up to the shop to get some. As they were about to go inside, they noticed Ramirez’s Expedition again. Someone inside the vehicle yelled “watch out” or “hold on.” Garcia and Castillo took this as an ominous sign; they hurried back into Navarette’s vehicle and told him to start driving.
Navarette did as told, but the Expedition followed him to a residential cul-de-sac. As Navarette made the turn in the cul-de-sac, Ramirez parked the Expedition in the middle of the street, blocking his egress. Then, Ramirez, appellant and Edwin Lopez exited the Expedition. Desperate to escape, Navarette drove up on the curb to get around them. When he did, Ramirez threw a bottle at his vehicle and appellant opened fire on it with a semiautomatic handgun. Appellant fired eight shots in all. Three of the shots struck the rear of Navarette’s vehicle, and one penetrated the rear passenger door and grazed Castillo’s leg.
Following the shooting, the police arrested Ramirez at his house. The arresting officers noticed graffiti from the Santa Nita gang on the curb outside Ramirez’s residence. Castillo testified that she did not think Ramirez was in a gang. However, while they were together, she sometimes saw him in the company of gang members. She also testified Ramirez was abusive to her during their marriage and had told her that if he ever saw her with another man, he would kill that man.
Appellant was not arrested until about two years after the shooting. He had moved to Las Vegas and was living under a false name, but when the police questioned him about the incident, he admitted he was the shooter. He said he acquired the gun from a Santa Nita member named Chente and had showed it to Ramirez before the shooting. He also said he felt bad for Ramirez because Castillo had left him. And when he saw Castillo with Navarette on the night in question, he didn’t like it because he felt they were disrespecting Ramirez. However, he claimed he fired the shots merely to scare them, not hurt them, and his actions were not gang related. While he tried to downplay his and Ramirez’s ties to Santa Nita, he did admit they used to “kick back” with members of that gang.
Gang expert Mauricio Estrada testified that appellant and Lopez were documented members of Santa Nita at the time of the shooting and that gang members often use the term “kick back” when describing how they associate with a gang when they are trying to minimize their relationship to the gang. He also said the police had contacted Ramirez on three different occasions on which he was with other members of the Santa Nita gang.
Estrada opined the subject shooting benefited Santa Nita by proving the willingness of its members to inflict harm on anyone they dislike. He said gang members earn respect through violence and intimidation, and if anyone disrespects them, they are expected to retaliate in order to preserve their status within the gang, and their gang’s standing in the community.
Estrada explained, “Gang members really have sort of an upside down view of respect. They don’t see respect in the same way [most people do]. They see respect as fear. They want more people to see them as violent and ruthless, ” because the “more of a monster you are, the more respect that you’re going to receive in the gang subculture.” Estrada said that acting violently is beneficial to gang members in another way in that it deters people from cooperating with law enforcement and allows them to commit crimes with greater impunity.
Testifying further, Estrada said that gang members are expected to help each other out and back each other up when they commit crimes. In fact, it has been his experience that “gang members depend on their fellow gang members to back them up, to help them out, to come to their aid or support their actions.”
Following trial, the jury found appellant not guilty of attempting to murder Navarette and Castillo. However, it convicted him of shooting at an occupied motor vehicle, street terrorism, and three counts of assault with a semiautomatic firearm. The jury also found that appellant personally used a firearm and acted for the benefit of a criminal street gang in carrying out the shooting offenses. The court sentenced appellant to fifteen years to life in prison, including a concurrent two-year term on the street terrorism count.
I
Appellant does not challenge his convictions for assault or shooting at an occupied vehicle. Rather, he contends there is insufficient evidence his actions were gang related, and therefore his conviction for street terrorism and the jury’s true finding on the gang allegation must be reversed. While the evidence in this case is far from compelling, we believe it is sufficient to support the jury’s verdict.
“‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We do not reweigh the evidence or revisit credibility issues; rather we presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We must uphold the judgment unless “‘“upon no hypothesis whatever is there sufficient substantial evidence to support”’” it. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1508, quoting People v. Bolin (1998) 18 Cal.4th 297, 331.)
A person is guilty of street terrorism if he or she 1) actively participates in a criminal street gang, 2) knows of the gang’s criminal activity, and 3) willfully promotes, furthers, or assists in any felonious criminal conduct by its members. (§ 186.22, subd. (a).) Appellant does not dispute he actively participated in Santa Nita and knew of the gang’s criminal activities. In fact, at trial he stipulated he was an active participant in Santa Nita on the day of the shooting. However, he contends the felonious conduct requirement was not satisfied because he was not acting on behalf of his gang and attempting to promote it when he shot at Navarrette’s vehicle. In other words, he contends the crime of street terrorism requires the felony at issue to be gang related in the sense it is intended to benefit the defendant’s gang.
Appellant “misapprehends the elements of the substantive crime of street terrorism. Contrary to what is required for [the gang] enhancement..., [the crime of street terrorism] does not require that the crime be for the benefit of the gang. Rather, it ‘punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself.’ [Citation.]” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1334, first italics added.) Simply put, the crime of street terrorism applies not to just those felonies that are gang related, but “any felonious criminal conduct by gang members.” (People v. Albillar (2010) 51 Cal.4th 47, 54.) Because appellant willfully assisted in felonious conduct as a Santa Nita gang member with other members of that gang, there is sufficient evidence to support his conviction for the crime of street terrorism.
Moreover, because the street terrorism statute requires proof of felonious conduct by gang members, appellant cannot reasonably complain that it makes mere membership in a gang a punishable offense. Indeed, the statute “has been upheld against a variety of constitutional challenges, including claims based upon the First Amendment and the due process clause of the Fourteenth. [Citations.] As these cases have explained, the carefully crafted terms of the statute ensure that mere membership in a criminal street gang will not be punished....” (People v. Lopez (1998) 66 Cal.App.4th 615, 633; accord, People v. Albillar, supra, 51 Cal.4th at pp. 57-59.) Therefore, we have no basis to disturb appellant’s conviction for street terrorism.
Appellant’s challenge to the gang enhancement also fails. The enhancement applies when the defendant commits an enumerated felony “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members[.]” (§ 186.22, subd. (b)(1).) Appellant asserts his actions were not designed to benefit his gang, but were merely a misguided attempt to support his friend Ramirez. However, there was substantial evidence to the contrary.
At the time of the shooting, appellant was a known member of Santa Nita, and he was also in the company of at least one other member of that gang, Lopez. Ramirez, who also participated in the attack, wasn’t a documented member of the gang, but appellant admitted that Ramirez liked to “kick it” with Santa Nita. As the gang expert explained, the term “kick it” is commonly used by gang members as a sort of code phrase to minimize a member’s involvement with his gang. Based on all the evidence that was presented, the jury could reasonably conclude that, like appellant and Lopez, Ramirez was a member of Santa Nita.
This is significant because, according to the gang expert, gang members will often feel compelled to retaliate when they believe someone in their gang has been disrespected. While appellant told the police he had no intention of hurting anyone when he opened fire on Navarette’s vehicle, he admitted he was angry that Ramirez’s wife was out with other people. In his mind, he perceived that as a fundamental act of disrespect toward Ramirez.
According to the gang expert, gangs are all about respect. They get it by committing violent crimes, and they keep it by making sure that no slight toward their gang goes unpunished. If a gang member feels he has been disrespected or challenged in any fashion, he would be expected to take action in order to preserve his reputation. In the gang expert’s opinion, appellant’s actions on the night in question were consistent with such an attempt to save face. Indeed, the facts indicate appellant was very determined to send a message to the occupant’s of Navarette’s vehicle that night. (Compare People v. Albarran (2007) 149 Cal.App.4th 214 [gang evidence should have been excluded where there was no apparent motive for the shooting in question].)
If appellant had really just wanted to scare the victims, as he alleged in his police interview, all he would have had to do was fire a shot or two into the air. But instead, he fired off eight shots, hitting not only Navarette’s vehicle, but rear passenger Castillo, as well. This massive display of firepower suggests appellant wanted to send a broader message to everyone in the community that he and his gang associates were not to be trifled with. By promoting his gang in that manner, appellant’s actions served the gang’s broader objectives of instilling fear in the community and deterring future slights against its members.
Of course, there was also evidence that the impetus for the shooting may have stemmed from the marital discord between Ramirez and Castillo, which has no inherent connection to appellant’s gang. But that does not negate the possibility that appellant’s reaction to this personal matter was motivated, at least in part, by a desire to promote his gang. Considering all the circumstances attendant to the shooting, we believe the jury could reasonably find appellant acted for the benefit of and with the specific intent to promote his gang in committing the charged offenses. We therefore reject his challenge to the sufficiency of the evidence on the gang enhancement. (See People v. Albillar, supra, 51 Cal.4th at p. 62 [where there was conflicting evidence as to the motive for defendant’s crime, jury was “entitled to credit the evidence that (the crime) was gang related, ” so as to support true finding on gang allegation].)
II
Next, we consider whether appellant was properly punished for both street terrorism and the felonious conduct underlying that offense, i.e., his act of shooting at the victims’ car. Appellant contends the multiple punishment prohibition in section 654 mandates his sentence for street terrorism be stayed, but we disagree and uphold the trial court’s decision to impose a concurrent sentence for that offense.
Section 654 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.” (§ 654, subd. (a).) “Although section 654 speaks in terms of an ‘act or omission, ’ it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time. [Citation.]” (People v. Meeks (2004) 123 Cal.App.4th 695, 704.) “‘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.’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952.)
The Supreme Court is currently considering how section 654 applies in the context of the crime of street terrorism. (See People v. Mesa (2010) 186 Cal.App.4th 773, review granted Oct. 27, 2010, S185688; People v. Duarte (2010) 190 Cal.App.4th 82, review granted Feb. 24, 2011, S189174.) Some intermediary courts have been loath to apply section 654 in this context, given that street terrorism requires the intent to participate in a gang, which is distinct from the intent to commit the underlying felony. (See, e.g., People v. Herrera (1999) 70 Cal.App.4th 1456, 1466-1468; People v. Ferraez (2003) 112 Cal.App.4th 925, 935.) However, because the crime of street terrorism is dependent on the commission of an underlying felony, other courts have applied section 654 to preclude separate punishment for both offenses. (See, e.g., People v. Sanchez (2009) 179 Cal.App.4th 1297, 1315.)
In our view, the present case should be analyzed under the traditional intent and objective test because appellant’s convictions for street terrorism and the underlying shooting felonies arose from a course of criminal conduct that encompassed appellant’s active participation in Santa Nita both before and during the time he engaged in the subject shooting. Under that test, we must ascertain whether appellant’s crimes were incident to one objective, in which case multiple punishment would be barred, or whether he harbored separate intents or objectives, in which case multiple punishment would be permitted. (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
As explained in the previous section, there is substantial evidence to support the conclusion that, in shooting the victims’ vehicle, appellant harbored separate intents or objectives. On the one hand, it appears appellant wanted to help his buddy Ramirez get back at his wife for going out with Navarette. And at the same time, he also wanted to send a message to the community that his gang was not to be trifled with. Given the evidence that appellant had both a personal and gang-related motive for the shooting, the trial court was justified in imposing separate punishment on the street terrorism count. (Compare People v. Vu (2006) 143 Cal.App.4th 1009, 1034 [where the defendant’s single intent and objective for committing conspiracy and street terrorism was gang retaliation, section 654 barred separate punishment for those offenses].)
Relying on People v. Albillar, supra, appellant argues the fact he may have had a gang motive to shoot the victims in this case is irrelevant in determining whether he can be separately punished on the street terrorism count. As noted above, the Supreme Court in Albillar determined the felony underlying the crime of street terrorism need not be gang related, but instead can be satisfied by proof that the defendant willfully promoted, further, or assisted “any felonious criminal conduct by gang members.” (People v. Albillar, supra, 51 Cal.4th at p. 54.) However, while this shows a gang connection is not required for the felony underlying the crime of street terrorism, it does not prove the defendant’s motive and intent for committing that felony are irrelevant for purposes of section 654. In fact, to take motive out of the equation would run afoul of Supreme Court authority, which has traditionally considered the intent and object of the defendant in considering whether section 654 should be applied in a particular case. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1212, discussing historical development of judiciary’s interpretation of section 654; see also People v. Liu (1996) 46 Cal.App.4th 1119, 1135 [“The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple.”].)
Relying upon Sanchez, supra, our dissenting colleague argues appellant cannot be punished for both his assaultive crimes and the gang crime because he stands convicted of “a crime that requires, as one of its elements, commission of an underlying offense, and... the underlying offense itself.” We don’t see it that way. In our view, appellant was convicted of three assaults with a semi-automatic firearm (on three different victims) and one instance of shooting into an occupied motor vehicle. Those are – at the very least – three different crimes, any one of which could support the gang allegation without reference to the others.
This is not, then, a situation such as Sanchez, in which the defendant was convicted of only one substantive offense (second degree robbery) and the gang crime was pulled from that offense like Athena from the head of Zeus. This is a situation in which there were multiple convictions for multiple crimes upon multiple victims. We do not reject Sanchez; we simply don’t believe it applicable to these facts.
For all these reasons, we adhere to the traditional intent and objective test in this case. Because the evidence shows appellant harbored both a personal and a gang-related motive for shooting the victims’ vehicle, we find he was properly sentenced for both the shooting crimes and the crime of street terrorism.
III
At sentencing, the court did not grant appellant conduct credit for the time he spent in custody prior to sentencing. Appellant asserts he is entitled to conduct credit under sections 4019 and 2933.1, and the Attorney General agrees. We will therefore grant appellant’s request for 170 days of conduct credit under those sections.
DISPOSITION
The judgment is modified to award appellant 170 days of presentence conduct credit pursuant to sections 4019 and 2933.1. The clerk of the superior court is directed to amend the abstract of judgment to reflect this award and send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
I CONCUR: MOORE, J.
O’LEARY, J., Concurring and Dissenting.
I concur in parts I and III of the majority opinion. However, I respectfully dissent from part II, where the majority concludes the trial court properly sentenced Martinez on the street terrorism count. Unlike the majority, I find the reasoning in People v. Sanchez (2009) 179 Cal.App.4th 1297 (Sanchez), persuasive.
The jury convicted Martinez of three counts of assault with a semiautomatic firearm (counts 3, 4, and 5), shooting at an occupied motor vehicle (count 7), and street terrorism (count 8). The trial court imposed a separate sentence on each count.
In Sanchez, supra, 179 Cal.App.4th at page 1315, the court held that when a “defendant stands convicted of both (1) a crime that requires, as one of its elements, the intentional commission of an underlying offense, and (2) the underlying offense itself[, ]” Penal Code section 654 prohibits the imposition of a separate sentence for the underlying charge and the street terrorism count.
Here, the trial court instructed the jury that to find Martinez guilty of street terrorism it must find he “willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang....” The court further instructed the jury: “Felonious criminal conduct means committing or attempting to commit any of the following crimes: attempted murder, assault with a semiautomatic firearm, or shooting at an occupied motor vehicle.”
Pursuant to these instructions, the jury necessarily relied on assault with a semiautomatic firearm (counts 3, 4, and 5), or shooting at an occupied motor vehicle (count 7), to satisfy the felonious conduct element of street terrorism. Consequently, a separate sentence on the street terrorism count constitutes multiple punishments for the same act.
Accordingly, I would order the sentence for street terrorism, count 8, stayed pursuant to Penal Code section 654.