Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF171426C Joseph A. Kalashian, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a jury trial, Salamon Garcia Parra (appellant) was convicted in count 1 of attempted willful, deliberate and premeditated murder (Pen. Code, §§ 664, 187, subd. (a)) and in count 2 of aggravated mayhem (§ 205). The jury found true the allegation that in both offenses a principal personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)(1)), and that the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise stated.
The information also alleged a special allegation as to each count that appellant personally inflicted great bodily injury causing brain injury and paralysis, pursuant to section 12022.7, subdivision (b). While those allegations are listed in the April 2, 2009, minute order of the sentencing hearing as found offenses, they are not included in the verdict forms, the reading of the verdict into the record, or the transcript of the sentencing. Clerical errors may be corrected by this court on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we order the minute order corrected to delete all reference to the section 12022.7 special allegations. Those allegations are hereby ordered stricken.
The trial court sentenced appellant to an aggregate term of 40 years to life in prison: On count 1, the court imposed a 15-year-to-life term (§ 186.22, subd. (b)(5)), plus a 25-year-to-life firearm use enhancement (§ 12022.53, subd. (e)). On count 2, the court imposed a concurrent 15-year-to-life term (§ 186.22, subd. (b)(5)), plus a 25-year-to-life firearm use enhancement (§ 12022.53, subd. (e)).
On appeal, we reject appellant’s contentions that the expert gang testimony based on a hypothetical question was improper and that the evidence was insufficient to sustain the aggravated mayhem conviction. We agree that the trial court erred when it imposed rather than stayed a concurrent sentence for the aggravated mayhem conviction and that the trial court erred when it imposed both a gang enhancement and a gun enhancement. We modify the sentence and, in all other respects, affirm.
FACTS
On the morning of September 30, 2006, Justin Fisher was riding in a vehicle in Terra Bella with some Norteno gang members when they saw appellant parked on the side of the road. As Fisher and his friends pulled up to a stop sign, appellant exhibited a shotgun. Fisher and his friends drove off, and Fisher returned home.
Thirty minutes to an hour later, Fisher’s friend, Kenny, picked him up and the two of them and five others drove to an elementary school for a fight with rival Sureno gang members. When Fisher and his cohorts arrived at the school, eight or ten rivals, including appellant, were already there. Fisher got out of the vehicle, took off his shirt, and walked, unarmed, toward appellant. Nobody in Fisher’s vehicle had a weapon. As Fisher approached, appellant’s group began to yell “Barrio Pobre, South side.” Fisher responded, “Let’s go fight, let’s fight. If we are going to fight, let’s fight.”
Nortenos are also referred to as Northerners; Surenos are also referred to as Southerners.
When Fisher was about four feet from the Sureno group, appellant pulled out a shotgun from behind his leg and handed it to “Hugo, ” who stood next to him. Fisher did not hear appellant give Hugo any instructions, but Hugo raised the weapon and aimed it. Fisher turned and ran. A single shot hit Fisher in the back, bottom, shoulder blade, and arm. Fisher fell to the ground and was unable to move. The Surenos ran.
Several people put Fisher into a truck and took him to the hospital, where he remained for an extended period of time. As a result of the shooting, Fisher is permanently disabled and must use a wheelchair.
Prior to the shooting, Jose Valencia had been at appellant’s home with appellant and some others when some Nortenos had driven by and insulted them. The two groups had agreed to meet at the school. According to Valencia, a group of 25 Nortenos arrived at the school with baseball bats, yelling they were going to kill Surenos. Valencia saw appellant take out a shotgun and show it to the Nortenos, but he did not point it. Instead, someone next to appellant said, “‘Shoot him, shoot him, ’” and grabbed the gun and fired a shot. At no time did Valencia hear appellant encourage or instruct anyone to shoot the gun, nor did he indicate he intended to shoot or hurt anyone. Appellant and Valencia were unable to leave the scene in appellant’s vehicle because the tires on the car had been slashed.
Valencia, who was in prison at the time of trial, was afraid to testify. A self-admitted former gang member, Valencia testified that the incident was gang related-Nortenos versus Surenos. He also acknowledged that appellant spoke to the shooter before the shooting, when they were in the car on the way to the school.
Detective Gary Hunt testified that he interviewed Valencia after the incident. During the interview, Valencia told Hunt that, after insults by the Nortenos, appellant told them to meet at the elementary school. Before going to the school, appellant armed himself with a shotgun. According to Valencia, the shooter, whom Valencia claimed not to know, had been staying with appellant for three days prior to the incident.
Marco Ramos, who identified himself as a former Norteno, witnessed the shooting. He was visiting his grandmother’s house across the street from the elementary school at the time. He saw approximately 15 Surenos and 15 Nortenos confront each other, exchanging words and insults. Fisher, his shirt off and without a weapon, separated himself from one group and walked toward the Surenos. At some point, Ramos noticed a sawed-off shotgun appear from among the Surenos. He heard one gunshot and saw Fisher fall to the ground. Both gangs fled, and Ramos helped place Fisher into a truck and transport him to the hospital.
Luis Lopez and Miguel Lopez were driving by the elementary school when they heard a gunshot. They saw some people pick Fisher off the ground and place him into a truck. Miguel Lopez told an officer he saw appellant leave the scene. Miguel Lopez also told the officer he had seen appellant driving a gray vehicle earlier in the day with appellant’s brother and two others. The car was not damaged at that time.
Brenda Valdez, whose sister was married to appellant’s brother, testified that she saw two vehicles arrive at the elementary school, she heard yelling and a gunshot, but she claimed not to recall other details of the incident. An officer who spoke to Valdez after the incident stated that Valdez told him she saw a vehicle pull into the parking lot at the school and eight people, wearing red shirts, get out. Two people wearing blue shirts approached, and the red group yelled at them. She heard the red group say, “‘We don’t need guns’” and “‘We’ll handle it one on one.’” She then saw a tall, skinny, white male with blond hair take off his red shirt. One of the subjects in blue assumed a shooting stance, pointed a firearm at the group, and fired one shot. Valdez saw a gray vehicle at the scene which had been damaged, including smashed windows and flattened tires.
Appellant’s home was searched, and a gray baseball hat with a Raiders emblem was found. Across the emblem was the word “sur, ” which means south in Spanish, and “13” was written under the emblem.
The Gang Evidence
Detective Stephen Garcia testified as a gang expert for the prosecution. According to Detective Garcia, there are two major, rival gang factions that are “deadly enemies”: the Nortenos and the Surenos. In Terra Bella, there were approximately 100 or more Nortenos and less than 100 Surenos. The Sureno criminal street gang, which identifies with the color blue, the number 13, and Southern California sports teams, was active in Terra Bella in 2006. Barrio Pobre is part of the Sureno gang in the Terra Bella area.
According to Detective Garcia, the primary activities of the Sureno criminal street gang consist of committing crimes such as robbery, assault with a deadly weapon, attempted murder, and murder. Garcia described three specific instances in which Surenos committed such crimes. In 2004, Jose Prado was involved in an assault with a deadly weapon at a local grocery store in Terra Bella. At the time, Prado had tattoos associated with the Sureno gang and was with some individuals wearing blue jerseys with the numeral 3 and “Los Angeles” written on them. In 2006, Romero Moran and friends were driving around Visalia when they saw an individual with a red ball cap and a red bandana tied around his bike. One of Moran’s friends called the person “buster, ” a derogatory term for a Norteno gang member, and someone in the group then fired a gun on the bike rider. And in 2008, Santiago Perez and Guillermo Izazaga jumped and severely beat a man. As they left the scene, witnesses heard one of the two yell “South Side.”
Detective Garcia opined that appellant and Valencia’s conduct at the school yard furthered Sureno criminal activity in Tulare County because both associated with other gang members and willingly went to the scene where Surenos were planning on committing a crime against the Nortenos.
Detective Garcia opined that the baseball hat found at appellant’s home was gang related, because it had the words “sur” and “Barrio Pobre” and “13” written on it. Appellant had “BP” tattooed on his right shoulder, which could stand for “Brown Pride” or “Barrio Pobre.” On his left hand, he had tattooed “sur” and three dots; on his right hand he had one dot. Together the dots represent the number 13, which shows an allegiance to the Surenos.
Detective Garcia explained that gang members “backup” each other during fights and follow their leader, and that a gang member can advance in the gang by committing a crime and backing up other gang members.
In response to several hypothetical questions, Detective Garcia opined that, if a Sureno responds to a Norteno challenge by stating, “Meet you at the school, ” and 30 minutes later brings a sawed-off shotgun to the school, it is a gang related incident because the weapon is a form of intimidation and can be used for protection, to cause damage, or to harm someone. A sawed-off shotgun can be easily concealed, providing an element of surprise. And if a senior member of the Surenos hands the firearm to a younger member of the criminal gang, the unspoken direction is to “‘Get it done, ’ show me you’re down, show me you’re committed, or basically you do it.” Garcia opined that the failure to follow such an order might cause the gang member to be verbally berated, beaten, kicked out of the gang, or murdered. Garcia opined that if one Sureno is challenged, other Surenos will back him up.
Also in response to a hypothetical question, Detective Garcia opined that, if a Sureno went to his house to get a shotgun after telling the Nortenos to meet at the school, and displayed the shotgun upon his arrival at the school before handing it to another Sureno gang member who, in turn, leveled the gun and shot a Norteno, such conduct was done for the benefit and direction of, and in association with, the Sureno criminal street gang. Garcia believed that this inference would be further supported if the two participants exhibited Sureno gang tattoos. Garcia opined that killing a member of the rival gang benefited the Sureno gang because it showed their dominance.
Garcia acknowledged that he never received information that appellant was a leader of the Barrio Pobre gang.
Defense
According to Juan Martinez-who was with appellant, Jose Valencia and Hugo S. at appellant’s home on the morning of September 30, 2006-the group drove to the elementary school after Jose Machuca told them of a confrontation with Fisher. When they arrived at the school, a group was already there, including Fisher and Francisco Hernandez, who was also known as “Kenny.” Martinez said the group was armed with bats and bars, and it appeared that Kenny was trying to load a chrome nine-millimeter handgun. Martinez’s group had one bat, but it was in the trunk of appellant’s car.
As Fisher approached appellant and his friends, Martinez saw appellant pull out a firearm, but he pointed it down. Hugo S. then walked up to appellant, grabbed the firearm, and pointed it at the Nortenos. When Fisher would not back off, Hugo S. fired the weapon. According to Martinez, Hugo acted on his own and no one told him what to do. Appellant had said nothing on the way to the school indicating that he wanted to shoot anyone. Martinez described Hugo as 15 years old, a little over five feet tall, and weighing approximately 110 pounds.
When appellant’s group tried to leave the scene, they discovered that appellant’s car had been damaged.
Martinez, who had three dots tattooed on his hand, acknowledged that, when he spoke to officers after the shooting, he did not mention that the Nortenos had any guns. Martinez acknowledged that he was not surprised when he saw appellant pull out a shotgun because “[w]e all knew he had it.”
Appellant testified in his own defense and said he was at his home with some friends before noon on September 30, 2006. Appellant denied that Hugo S. was present and denied knowing him. He also did not recall Valencia being present. Machuca told appellant and his friends of the earlier confrontation he had had with Fisher. At about that time, a car of Nortenos passed by appellant’s home and challenged appellant and his fellow Surenos. In response, appellant and his friends went to the school for a fight between Machuca and Fisher.
Detective Hunt testified that Valencia told him Hugo S. had been staying with appellant for three days prior to the incident, and it was Hugo who pointed the gun at the Nortenos.
Appellant had known Fisher since he was young, and Fisher was a friend of appellant’s family. Appellant had no personal animosity toward Fisher and had never fought with him.
Appellant drove to the school with three other Surenos in his gray Ford Taurus. Eight other Surenos arrived in another vehicle. After appellant arrived, seven or eight Nortenos got out of a vehicle and began smashing the windows, flattening the tires, and denting the side of appellant’s car. The Nortenos then approached the Surenos on the school grounds. The Nortenos were armed with bats, sticks, and one member had a gun.
As the Nortenos got closer, appellant took out a sawed-off shotgun he held behind his back to protect himself. The gun was pointed down, and appellant did not intend to shoot anyone. Appellant, who claimed he was not the leader of the Surenos, never instructed anyone else to fire the gun. The Norteno with the handgun continued toward the Surenos while loading the weapon. Appellant was afraid for his life, but he did not shoot his weapon. Instead, someone else from his group-someone he did not see-grabbed it from him and fired. Appellant ran for his life.
Appellant admitted that the gray Raiders hat found by law enforcement at his home was his. He admitted that Barrio Pobre identified with the Surenos and the color blue, and that the Surenos and Barrio Pobre “back or support” one another. Appellant acknowledged that he brought the weapon to the school knowing there was going to be a fight that day, but he claimed that the fight was a “fight between friends” and not a gang fight.
Rebuttal
Detective Gary Hunt interviewed Martinez after the incident. During the interview, Martinez gave three different versions of the event, all of which differed from his trial testimony. Martinez never mentioned to Hunt that appellant had a gun or that he knew the shooter.
DISCUSSION
1. Gang Evidence
Appellant contends the trial court made three errors in allowing admission of gang evidence. Specifically, he claims that: (1) the expert testimony based on a particular hypothetical question constituted improper opinion evidence as to appellant’s knowledge and intent at the time he handed the shotgun to Hugo S.; (2) the hypothetical question misstated the evidence and assumed facts not in evidence; and (3) the hypothetical question erroneously assumed appellant handed the gun to the shooter, a disputed fact that should have been resolved by the jury.
At trial, the prosecutor introduced evidence that, after appellant displayed the shotgun to Fisher and the other Nortenos, he handed the shotgun to Hugo, who then fired it. On the other hand, Valencia, Martinez, and appellant himself all testified that the shooter grabbed the gun from appellant and fired of his own accord.
During Detective Garcia’s testimony about gang culture and habits, the prosecutor asked a series of hypothetical questions which, as appellant acknowledges, “generally mirrored the facts of the case, including questions about the challenge preceding the meeting at the school, its gang significance and the significance of a weapon brought to school grounds.” Detective Garcia was then asked the following:
“[Prosecutor]: [L]et’s add one more element to that hypothetical. Let’s say that Sureno, a more senior member of the Sureno criminal street gang, hands that firearm to a younger member of that criminal street gang?
“[Defense Counsel]: Objection; misstates the evidence and assumes facts not in evidence.
“The Court: At this point it’s just a hypothetical.
“[Defense Counsel]: Your Honor, I believe the hypothetical has to have some semblance to the facts here.
“The Court: Correct. Overruled.
“[Prosecutor]: Let’s say an older member of the Sureno criminal street gang hands it to a younger one. Would there be any gang significance to that?
“A. Yes.
“Q. What?
“A. It would just be an unspoken, ‘Get it done, ’ show me you’re down, show me you’re committed, or basically you do it.
“Q. Is there punishment in Sureno gang culture to members that don’t follow orders?
“A. Yes.”
On cross-examination, Detective Garcia acknowledged that he had no evidence that appellant was a gang leader. Later, appellant and Martinez testified that the shooter grabbed the gun from appellant and fired of his own accord.
Respondent contends that, by failing to object at trial, appellant waived the issue on two of the three grounds now raised. According to respondent, appellant objected only that the hypothetical misstated the evidence and assumed facts not in evidence. We agree. “[A] defendant may not complain on appeal that evidence was inadmissible on a certain ground if he did not make a timely and specific objection on that ground in the trial court.” (People v. Gordon (1990) 50 Cal.3d 1223, 1255, disapproved on another point in People v. Edwards (1991) 54 Cal.3d 787, 835; see Evid. Code, § 353.) In any event, however, and because appellant asserts incompetence of counsel for failure to make an adequate objection, we address appellant’s arguments on the merits and find no prejudicial error.
A. Did the trial court err in overruling appellant’s objection that the hypothetical misstated the evidence and assumed facts not in evidence?
A trial court has considerable discretion to allow expert testimony, including that which is elicited through hypothetical questions. (Evid. Code, § 352; People v. Rowland (1992) 4 Cal.4th 238, 266; People v. Price (1991) 1 Cal.4th 324, 416.) Appellant contends the hypothetical here was objectionable, however, because there was no evidence that appellant was a senior member of Barrio Pobre or a leader of any gang. We believe appellant reads the hypothetical question incorrectly. The prosecutor did not ask about “a senior member” or leader of the gang; he asked about “a more senior” and “a younger member” of the gang. After defense counsel made his objection, the prosecutor rephrased his question to refer to “an older member” and “a younger one.” The record demonstrates that, at the time of the crime, appellant was 25 years old. The testimony at trial was that Hugo S. was 15 at the time of the crime.
Appellant’s contention here is not well taken.
B. Was the hypothetical question improper because it was based on a disputed question of fact?
Appellant contends that, because the hypothetical question assumed that appellant handed the shotgun to the shooter, which was a disputed question of fact, the hypothetical was improper. We disagree.
Appellant cites no authority for the proposition that a hypothetical question may not properly be based on disputed facts. Such a proposition is belied by a common jury instruction-one that was given here:
“An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on those assumed facts. It’s up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the … expert’s opinion.” (See CALCRIM No. 332.)
Thus, despite the content of the hypothetical question, the jury here still had to determine whether appellant handed the shotgun to the shooter or the shooter grabbed it from appellant’s hands. Appellant’s assertion of error is unfounded.
C. Was the hypothetical improper because it sought the expert’s opinion on appellant’s knowledge and intent?
Appellant contends the hypothetical was improper because it allowed the expert witness to give his opinion “as to appellant’s intent and knowledge at the time the shooter controlled the weapon ….” He relies in support on this court’s opinion in People v. Killebrew (2002) 103 Cal.App.4th 644. There the defendant was convicted of conspiracy to possess a handgun after police found a handgun in one of three vehicles occupied by seven gang members and another handgun next to the Dumpster of a taco stand where the members had stopped. Killebrew was seen in the area of one of the vehicles, and two unidentified men were seen walking away from his location. (Id. at pp. 647-649.) “The prosecution theorized that the threat of [rival gang] retaliation compelled the occupants of the three vehicles to conspire to possess the handgun[s].…” (Id. at p. 649.) The prosecution attempted to establish that the defendant had been a passenger in one of the vehicles. “[A] police officer testified as an expert on gangs to establish not only Killebrew’s membership in a criminal street gang, but his subjective knowledge and intent to possess [a] handgun.” (Id. at p. 647.)
On appeal, the defendant challenged the admissibility of the expert’s testimony “that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun, ” arguing “that these opinions on the subjective knowledge and intent of each occupant in the car were improperly admitted.” (People v. Killebrew, supra, 103 Cal.App.4th at p. 652, fn. omitted.) We agreed, finding the “testimony is not the type of culture and habit testimony found in the reported cases. Gardeley addressed testimony about the primary purpose of the gang, and whether the attack was gang-related activity.” (Killebrew, at p. 654.) On this basis, we distinguished cases such as People v. McDaniels (1980) 107 Cal.App.3d 898, in which the expert “testified that a person who lived in a gang’s territory was automatically associated with that gang by rival gangs, fistfights between gangs normally occur at neutral sites, if a gang traveled to another gang’s territory, normally more than a fistfight would occur, and it was unusual for various Crip factions to band together when taking retaliatory action.” (Killebrew, at p. 656; see also, e.g., People v. Olguin (1994) 31 Cal.App.4th 1355, 1367.)
People v. Gardeley (1996) 14 Cal.4th 605, 617 [“The subject matter of the culture and habits of criminal street gangs … meets (the) criterion (of Evidence Code section 801 defining the admissibility of expert testimony)”].)
In response to appellant’s reliance on Killebrew, respondent cites People v. Gonzalez (2006) 38 Cal.4th 932, where the high court said “we read Killebrew as merely ‘prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.’ [Citations.]” (Id. at p. 946, fn. omitted.) As to hypothetical questions, the high court said “there is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons.” (Id. at p. 946, fn. 3.)
In our view, an interesting question remains after Gonzalez-to wit, the extent to which the prosecution may use a hypothetical question to prove the expert’s opinion about the defendant’s knowledge or intent. We need not and will not explore that question in the present case, however, because if there was error, it was not prejudicial.
As to the question of prejudice, we first reject appellant’s assertion that the Chapman test applies because the error violated due process. Appellant merely asserts, but does not explain how, the identified error either was “unnecessarily suggestive and conducive to irreparable mistake” or denied appellant the “opportunity to be heard and present a defense.”
Chapman v. California (1967) 386 U.S. 18.
The proper test for prejudice is the Watson question whether there is a reasonable probability of a different result absent the error. (People v. Avitia (2005) 127 Cal.App.4th 185, 194 [erroneous admission of gang evidence]; People v. Ledesma (1987) 43 Cal.3d 171, 217-218 [prejudice from defense counsel’s allegedly deficient performance]; People v. Adan (2000) 77 Cal.App.4th 390, 393 [erroneous admission of expert opinion on defendant’s intent].) Here, as in Adan, the evidence aside from the expert’s opinion was overwhelming. Prior to the shooting, members of the Barrio Pobre gang gathered at appellant’s home. After the earlier altercation with some Nortenos, and after several Nortenos drove by and shouted insults, appellant and his fellow gang members agreed to meet their rivals at the elementary school. Appellant armed himself with a sawed-off shotgun and drove with his fellow gang members to the school. At the school, appellant pulled out the gun when Fisher was a few feet from him. According to Fisher, appellant handed the gun to Hugo, who fired it at him. Appellant had spoken to Hugo earlier, while in the car traveling to the schoolyard.
People v. Watson (1956) 46 Cal.2d 818.
Although Valencia testified that someone grabbed the gun from appellant and fired it, Valencia, a fellow gang member with appellant, recalled very little else during testimony. He claimed not to remember Hugo’s name, although Hugo was with appellant and Valencia at the home and drove to the school with them. Martinez, too, testified that Hugo walked up and grabbed the gun from appellant, but Martinez also was a fellow gang member of appellant’s. When interviewed by law enforcement after the incident, Martinez gave three different versions of the events, none of which was consistent with his testimony at trial or mentioned that appellant had a weapon.
And appellant’s own testimony lacked credibility. He admitted he brought a shotgun to the school knowing there was going to be a fight. He also admitted he pulled out the gun when Fisher got close, but he claimed to do so only to protect himself. According to appellant, an unknown person whom he did not see grabbed the gun and shot Fisher. Appellant denied knowing Hugo S., even though Valencia and Martinez testified he was at appellant’s home earlier in the morning and rode to the school in appellant’s car with them.
Further, any possible prejudice was diminished by the trial court instructing the jury with CALCRIM No. 332 regarding expert testimony, which provided in part,
“A witness was allowed to testify as an expert and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide.… [¶] You must decide whether information on which the witness relied was true and accurate. You may disregard any opinion if you find … it unbelievable, unreasonable, or unsupported by the evidence.”
Finally, and perhaps most importantly, the alleged error did not impact the issue raised by appellant’s defense. Assertedly, the error occurred because the expert gave his opinion that, when appellant handed the shotgun to Hugo, he did so with the knowledge and intent that Hugo would use the shotgun to murder the victim Fisher. But appellant’s defense was not that he possessed no such intent; instead, he testified and presented other evidence that he did not hand the gun to Hugo; rather, Hugo grabbed the gun from appellant and shot Fisher of his own accord. Appellant never presented any suggestion that he handed the gun to Hugo with some intent other than that Hugo should shoot the victim. Thus, if error occurred, it cannot be said that absent the error a different result would have obtained.
If any error occurred, it was harmless.
2. Sufficiency of the Evidence-Aggravated Mayhem
Appellant argues that the evidence was insufficient to establish the specific intent to cause a maiming injury, as required for a conviction of aggravated mayhem pursuant to section 205. We disagree.
Section 205 provides: “A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body. For purposes of this section, it is not necessary to prove an intent to kill.…”
In reviewing the sufficiency of the evidence to support a conviction,
“we determine ‘“whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.” [Citations.]’ [Citation.] Under such standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. [Citations.] The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury’s conclusions. [Citations.] [¶] In making the determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether ‘“‘any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt.’” [Citations.]’ [Citation.] Unless it is clearly shown that ‘on no hypothesis whatever is there sufficient substantial evidence to support the verdict’ the conviction will not be reversed. [Citation.]” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1161-1162.)
Aggravated mayhem requires the specific intent to cause a maiming injury, i.e., permanent disability or disfigurement. (People v. Park (2003) 112 Cal.App.4th 61, 68; People v. Ferrell (1990) 218 Cal.App.3d 828, 833.) “[S]pecific intent may be inferred from the circumstances attending an act, the manner in which it is done, and the means used, among other factors.” (People v. Lee (1990) 220 Cal.App.3d 320, 325 [finding no specific intent when evidence showed only a sudden, indiscriminate, and unfocused battering of victim’s body with defendant’s fists and feet].) However, the specific intent required for aggravated mayhem “‘may not be inferred solely from evidence that the injury inflicted actually constitutes mayhem; instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately. [Citation.]’” (People v. Park, supra, at p. 64.)
In People v. Sears (1965) 62 Cal.2d 737, 740-741, 745, overruled on another ground by People v. Cahill (1993) 5 Cal.4th 478, 510, footnote 17, the court held that the evidence was insufficient to establish specific intent to maim when the defendant attacked his estranged wife with a steel pipe and struck his daughter with the pipe when she tried to intervene, causing a laceration to the daughter’s lip and nose. The court stated that the evidence showed only an indiscriminate attack rather than intent to maim the daughter. In People v. Anderson (1965) 63 Cal.2d 351, 359-360, the court held that more than 60 knife wounds to the 10-year-old murder victim’s body showed “only an explosion of violence” rather than specific intent to maim.
In contrast, in People v. Park, supra, 112 Cal.App.4th 61, the defendant convicted of aggravated mayhem had sat down with fellow gang members next to a rival gang at a restaurant, and the two groups exchanged stares. The rival gang made verbal threats and left. The defendant, who was then very angry, walked to the rear of the restaurant, got a long steel knife-sharpener, and confronted the rival gang outside the restaurant. He then drew the steel knife-sharpener from behind his head and brought the weapon forward over his shoulder in a throwing motion. The victim, who believed the defendant intended to hit him in the head, held his arm in front of his face to protect himself. The defendant hit the victim’s arm three or four times with the weapon while the victim attempted to block the blow. With a final blow, the defendant hit the victim’s mouth, resulting in eight broken teeth and profuse bleeding. (Id. at p. 65.) The court found specific intent to maim because the attack was not indiscriminate, the defendant aimed at an extremely vulnerable part of the victim’s body, and he stopped his attack once he had maimed him. Also considered by the court was the defendant’s choice of weapon, a steel weapon instead of his fists, and the fact that the attack was planned following demonstrated antagonism between the two groups, showing deliberation and planning rather than an explosion of indiscriminate violence. (Id. at pp. 69-70.)
In People v. Ferrell, supra, 218 Cal.App.3d 828, the defendant, convicted of both attempted second degree murder and aggravated mayhem, arrived at the victim’s apartment looking for her. She entered the apartment and jerked the telephone from the victim’s hand. She pointed a gun at the victim’s mother and threatened to kill her if she moved. She then pointed the gun at the victim’s father, told him not to take another step and, when he did, she lowered the gun and shot him in the knee. The defendant then shot the victim in the neck from a distance of about two feet. The bullet severed the victim’s spine and resulted in severe partial paralysis. The victim thought the defendant had seemed angry but not nervous or afraid. (Id. at pp. 831-832.) The court concluded the evidence of intent to main was sufficient when the defendant shot the victim in the neck at close range, causing her to become permanently paralyzed, because such a shot is highly likely to disable permanently and because the attack was directed and controlled. (Id. at pp. 833-835.) As summarized by the court in Ferrell,
“Viewed in the light most favorable to the judgment, that evidence established that this bizarre shooting was a cold and deliberate attack. [The defendant] was a stranger to [the victim]. Nevertheless, [the defendant] came looking for her victim by name. She knew [the victim’s] address, and stated that she had been sent by a friend from jail. [The defendant] knocked the phone from [the victim’s] hand, effectively preventing her from calling for help. She threatened to kill [the victim’s] mother and pointed the gun at her chest; when [the victim’s] father moved toward [the defendant], she calmly and deliberately lowered her aim and shot him in the knee. She quickly then turned and shot [the victim] once in the neck, from short range. Once [the victim] was down, [the defendant] did not fire additional shots at her, to make certain that she was dead; instead, [the defendant] was apparently satisfied with the result of her single shot. It takes no special expertise to know that a shot in the neck from close range, if not fatal, is highly likely to disable permanently. [The defendant’s] shooting of [the victim] was not an indiscriminate, random attack on her body; instead, the shooting was directed and controlled. From all this evidence, the jury could reasonably have inferred that [the defendant] intended both to kill [the victim] and, if she did not die, to disable her permanently. Substantial evidence supports the jury’s verdict.” (People v. Ferrell, supra, 218 Cal.App.3d at pp. 835-836.)
The present case has important similarities to Park and Ferrell. Viewed in the light most favorable to the judgment, the evidence here is as follows. After a confrontation between appellant and Norteno gang members, the Nortenos drove by appellant’s home and shouted insults. This led to a challenge to the Nortenos to meet at the elementary school to settle the conflict. Appellant specifically armed himself with a sawed-off shotgun and drove his fellow Surenos to the elementary school. He spoke to Hugo S. on the way to the school. Once there, appellant, with his shotgun behind his back, led his fellow gang members towards the rival gang. He waited, however, until Fisher was about four feet from him before displaying the sawed-off shotgun hidden behind his leg. He then handed the gun to Hugo S., who leveled it and fired. Fisher had turned and run, and a single shot hit him in the back, bottom, shoulder blade, and arm. He fell to the ground. The shooter did not fire another shot but ran from the scene.
The jury was instructed that, in order to find aggravated mayhem, the People had to prove that appellant (1) unlawfully and maliciously disabled or disfigured someone permanently or deprived someone of a limb, organ or part of his body; (2) that when appellant acted, he intended to permanently disable or disfigure the other person or deprive him of a limb, organ, or part of his body; and (3) under the circumstances, appellant showed an extreme indifference to the physical or psychological well-being of another person. (CALCRIM No. 800.) Here, the attack was planned and deliberate after an encounter between the rival gangs. The weapon was aimed at a vulnerable part of Fisher’s body, his back, and when used at close range, was able to inflict injury from his neck to his bottom with a single shot. And once Fisher was shot, the shooter ran from the scene. The jurors were entitled to infer that, from all of the evidence presented and circumstances of the shooting, appellant specifically intended to maim Fisher. We reject his claim to the contrary.
3. Section 654
Appellant contends multiple sentences for aggravated mayhem and attempted murder were imposed in violation of section 654. Appellant argues the shooting was a “single act” and not a divisible course of conduct. We agree.
Section 654, subdivision (a) provides, in pertinent part, “[a]n 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.” Section 654 is intended to ensure “that a defendant’s punishment is commensurate with his [or her] culpability.” (People v. Perez (1979) 23 Cal.3d 545, 552.) The statute bars multiple punishment for both a single act that violates more than one criminal statute and multiple acts, where those acts comprise an indivisible course of conduct incident to a single criminal objective and intent. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; Neal v. State of California (1960) 55 Cal.2d 11, 19.) Conversely, where a defendant commits multiple criminal offenses during a single course of conduct, he or she may be separately punished for each offense that he or she committed pursuant to a separate intent and objective. (People v. Beamon (1973) 8 Cal.3d 625, 637-639.)
Whether multiple convictions were part of an indivisible transaction is primarily a question of fact for the trial court. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We review a challenge under section 654 for substantial evidence to support the trial court’s determination. (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.) Moreover, this deferential standard of review applies whether the trial court’s findings are explicit or implicit. (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.) Thus, although section 654 was not raised in this case and the court made no express findings as to its possible application, we must presume from the fact it imposed separate sentences that it found appellant acted pursuant to multiple criminal objectives and must uphold that finding unless there is no substantial evidence to support it.
The evidence here is clear, however, that there was but a single act-a single shot to a single victim-that violated more than one criminal statute. There was not a course of conduct to be examined for independent criminal intents. In People v. Diaz (2002) 95 Cal.App.4th 695, the defendant was convicted of, and received concurrent sentences for, attempted murder, aggravated mayhem, assault by means likely to produce great bodily injury, and assault with a semiautomatic weapon. Diaz involved a gang shooting where the defendant got out of the car, walked up to the victim, “pulled out a handgun, shot at [the victim] numerous times, and then got back into [the] car.” (Id. at p. 698.) Based on the defendant’s argument on appeal and the Attorney General’s concession, the Court of Appeal ordered the sentences imposed for all convictions other than the attempted murder stayed pursuant to section 654 because all charges were “based on the same single act of shooting a single victim.” (Diaz, at p. 708.)
Here, as in People v. Diaz, both charges of aggravated mayhem and attempted murder were based on a single shot to a single victim. Appellant’s concurrent prison term on count 2 must therefore be stayed so long as the judgment on count 1 remains in full force and effect.
4. Firearm and Criminal Street Gang Enhancements
In addition to finding appellant guilty of attempted murder and aggravated mayhem, the jury found true the special allegations (a) that the attempted murder was committed willfully, deliberately and with premeditation; (b) that in committing both offenses, a principal personally and intentionally discharged a shotgun within the meaning of section 12022.53, subdivisions (d) and (e)(1); and that the offenses were committed to benefit a criminal street gang within the meaning of section 186.22, subdivision (b)(1). In sentencing appellant, the trial court imposed a 15-year-to-life term pursuant to section 186.22, subdivision (b)(5), and also imposed an additional term of 25 years to life for the firearm use enhancement under section 12022.53, on each count. Both appellant and respondent agree that the trial court erred in imposing both the 15-year-to-life term pursuant section 186.22, subdivision (b)(5) and the 25-year-to-life firearm use enhancement. But appellant contends imposition of the 25-year-to-life term for the gun use enhancement must be stricken, while respondent argues that imposition of the 15-year minimum parole eligibility term set forth in section 186.22, subdivision (b)(5) must be stayed. We agree with respondent.
Both appellant and respondent address this issue with respect to the count 1 attempted murder conviction, but it applies to the count 2 aggravated mayhem conviction as well.
An unauthorized sentence may be corrected on appeal even if no objection was made in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 854.)
Section 186.22, subdivision (b) imposes a range of penalties for persons convicted of committing a crime for the benefit of a criminal street gang. As relevant here, section 186.22, subdivision (b)(5) provides, in pertinent part, that “any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life, shall not be paroled until a minimum of 15 calendar years have been served.” Premeditated attempted murder and aggravated mayhem are such felonies, ordinarily mandating imprisonment for life, with a minimum term of “at least seven calendar years.” (§§ 664, subd. (a), 187, subd. (a), 205, 3046, subd. (a)(1).)
Section 12022.53, a firearm use enhancement statute, also known as the “10-20-life” law, “imposes increasingly severe sentence enhancements for firearm use in the commission of certain felonies set forth in subdivision (a) of that section.” (People v. Brookfield (2009) 47 Cal.4th 583, 589.) Personal use of a firearm results in an additional 10-year prison term (§ 12022.53, subd. (b)), personal and intentional discharge of a firearm results in an additional 20-year term (id., subd. (c)), and personal and intentional discharge of a firearm resulting in death or great bodily injury to a person other than an accomplice results in a 25-year-to-life term (id., subd. (d)) additional to the sentence for the underlying crime.
Ordinarily, section 12022.53’s firearm use enhancements apply only when a defendant personally used or discharged a firearm; however, that is not the case when the offense was committed to benefit a criminal street gang. Under section 12022.53, subdivision (e)(1), the firearm use enhancement applies to a defendant who did not personally use or discharge a firearm in a gang-related crime, as long as another principal in the crime did. (People v. Brookfield, supra, 47 Cal.4th at p. 590.) But this exception is limited by subdivision (e)(2) of the same section, which prohibits the imposition of both a firearm use enhancement and a gang enhancement unless it was the defendant who personally used or discharged a firearm. Thus, when a defendant used or discharged a firearm in a gang-related crime, the firearm use enhancement and the gang enhancement may both be imposed, but if another principal used or discharged a firearm in a gang-related crime and the defendant did not, “there is no imposition of an ‘enhancement for participation in a criminal street gang … in addition to an enhancement imposed pursuant to’ section 12022.53.” (People v. Brookfield, supra, at p. 590; accord, People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282 [§ 12022.53, subd. (e)(2) prevents imposition of 15-year minimum term specified in § 186.22, subd. (b)(5) as well as expanded liability under § 12022.53, subd. (e)(1), unless defendant personally used the firearm].)
Section 12022.53, subdivision (e)(1) provides: “The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).”
Section 12022.53, subdivision (e)(2) provides: “An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.”
Appellant contends that it is the 25-year-to-life firearm enhancement that was improperly imposed and not the 15-year minimum parole eligibility term per section 186.22, subdivision (b)(5). As argued by appellant, “[t]he gun-use enhancement cannot drive the sentence; it has no life independent of the underlying felony to which it is attached.” But, as explained in People v. Brookfield, the “use of the term ‘enhancement’ in section 12022.53[, subdivision ](e)(2) was intended to refer broadly to any greater term of imprisonment for a crime that, as here, is committed to benefit a criminal street gang. This means that, as used in the statute, the word ‘enhancement’ includes not only the sentence enhancements in section 186.22, but also the alternate penalty provisions in that section.” (People v. Brookfield, supra, 47 Cal.4th at p. 593.) The trial court therefore erred in imposing both a 25-year-to-life enhancement under section 12022.53, subdivisions (d) and (e)(1) and an additional penalty or enhancement pursuant to section 186.22, subdivision (b)(5).
In this case, where only one of the two enhancements may be imposed, the trial court must apply the one that will result in the greater sentence. (§ 12022.53, subd. (j); People v. Brookfield, supra, 47 Cal.4th at p. 596.) Accordingly, as to both counts, absent an exercise of its discretion to strike the gang enhancements in the interests of justice (see § 186.22, subd. (g)), the trial court should have stayed imposition of the 15-year minimum parole eligibility term set forth in section 186.22, subdivision (b)(5). (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1129; People v. Sinclair (2008) 166 Cal.App.4th 848, 854; see generally Cal. Rules of Court, rule 4.447 [“[n]o finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements”; sentencing judge must “stay execution of so much of the term as is prohibited or exceeds the applicable limit”].) Staying imposition of the 15-year minimum parole eligibility terms in effect reduces appellant’s sentence from 40 years to life to 32 years to life in light of the seven-year minimum parole eligibility date mandated in section 3046, subdivision (a)(1).
DISPOSITION
The judgment is modified as to counts 1 and 2 to impose and stay execution of the 15-year-to-life minimum parole eligibility term pursuant to section 186.22, subdivision (b)(5) and, in addition as to count 2, to stay execution of the entire sentence imposed pursuant to section 654. We also order the minute order of April 2, 2009, corrected to eliminate the references to the special allegations pursuant to section 12022.7, subdivision (b). The court is directed to order that the clerk of the superior court then prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment. As so modified and in all other respects, the judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., HILL, J.