Opinion
E052309
04-11-2012
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY PASTEL, Defendant and Appellant.
William D. Farber, 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, Steve Oetting, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF067449)
OPINION
APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez, Judge. Modified and affirmed with directions.
William D. Farber, 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, Steve Oetting, and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Robert Anthony Pastel appeals his conviction on multiple counts. He contends that instructional error requires reversal of his conviction on one count and on two enhancements, and that Penal Code section 654 precludes imposition of unstayed sentences on both of two counts. As to the latter contention, we agree.
PROCEDURAL HISTORY
Defendant was charged with attempted robbery (count 1; Pen. Code, § 664/211); assault with a deadly weapon (count 2; Pen. Code, § 245, subd. (a)(1)); active participation in a criminal street gang (count 3; Pen. Code, § 186.22, subd. (a)); and misdemeanor battery (count 4; Pen. Code, § 242). As to counts 1 and 2, the information alleged that each crime was committed for the benefit of, at the direction of and in association with a criminal street gang, within the meaning of Penal Code section 186.22, subdivision (b). As to count 4, the information alleged that the crime was committed for the benefit of, at the direction of and in association with a criminal street gang, within the meaning of Penal Code section 186.22, subdivision (d). The information also alleged that defendant was a minor 16 years of age or older within the meaning of Welfare and Institutions Code section 707, subdivision (d)(1).
All statutory citations refer to the Penal Code unless another code is specified.
Welfare and Institutions Code section 707, subdivision (d)(1) permits the prosecution of a minor aged 16 or 17 as an adult for the commission of certain offenses. Defendant was apparently 17 at the time of the charged offenses.
A jury convicted defendant on counts 2, 3 and 4, and acquitted him on count 1. It found the enhancement allegations true as to counts 2 and 4. The court sentenced defendant to a total term of eight years, consisting of the upper term of four years for the assault and a consecutive term of four years for the gang enhancement on that count. The court imposed a concurrent term of two years for participation in a criminal street gang and imposed and stayed the term for the misdemeanor battery pursuant to section 654 and imposed and stayed the enhancement attached to that count.,
The abstract of judgment does not reflect the sentence imposed on count 4. We will direct the court to correct the abstract of judgment to reflect the sentence imposed. (People v. Rosas (2010) 191 Cal.App.4th 107, 113-114.)
Defendant apparently pleaded guilty in an unrelated case, to one count of assault with a deadly weapon with a gang enhancement and one count of active participation in a criminal street gang. The court imposed the sentence on the unrelated case concurrent with the sentence in this case.
Defendant filed a timely notice of appeal.
FACTS
On the evening of September 4, 2009, defendant drove up next to William Farmer and his girlfriend, Nicole Williams. Defendant got out of his truck and "claimed" a local gang. Farmer thought he said "West Drive Locos." Defendant approached Farmer with a screwdriver in his hand. He asked Farmer, "Are you William from ST?" "ST" stands for Suicidal Tendencies, a white supremacist gang.
Farmer told defendant that he was not from ST. Defendant replied, "Oh, bullshit. I know you've been running your mouth," and tried to stab Farmer with the screwdriver. Farmer grabbed defendant's hand. Defendant pulled his hand away and punched Farmer in the forehead with his other hand. He said, "Well, you're going to at least leave your fucking cell phone, fool." He tried to smash the cell phone in Farmer's hand, which belonged to Farmer's girlfriend.
A neighbor from a nearby apartment yelled at defendant to leave Farmer alone. Defendant got into his truck and tried to run Farmer over as he drove away.
Farmer's testimony was partially corroborated by Nicole Williams. She testified that defendant approached Farmer and asked if he was Willie from ST. He had a screwdriver in his hand. Farmer did not have a knife on him. He kept backing away from defendant. When a couple of neighbors came out, defendant went back to his truck. She disagreed that defendant tried to run them over. She said that when they walked in front of his truck, defendant "took off quick," but it did not appear that he was intentionally driving toward them.
A gang expert testified concerning the "True Crime Boys" gang, or TCB, and defendant's membership in that gang. He testified to facts which established that TCB was a criminal street gang within the meaning of section 186.22. Although TCB was primarily Hispanic, the expert opined that defendant, who is not Hispanic, could be a member of the gang. Based on defendant's past contacts with police, his tattoos, his associations with other TCB members, his prior admissions of membership in TCB, and other information gathered by police, the expert opined that defendant was a member of TCB and was known by the moniker "Ghost."
In the expert's opinion, a person would not claim to belong to a gang unless he was a member of the gang, and a gang would not tolerate it if someone did falsely claim to be a member. In his opinion, defendant's altercation with Farmer was committed to enhance his standing or reputation within the gang. He also opined that the assault was committed to benefit the gang.
Defendant admitted that he had struck Farmer with his hand but denied that he assaulted Farmer with a screwdriver, that he attempted to steal the cell phone and that he attempted to run Farmer down with the truck. Rather, after defendant confronted Farmer about being "Willie from ST" and tried to hit him, Farmer pulled out a knife and said he was going to "stick" him. Defendant ran back to his truck to retrieve his screwdriver. When he heard a neighbor saying he was going to call the police, defendant got into the truck and drove off instead. As he drove away, he yelled "TCB." After he got back into the truck, he realized that the screwdriver was in his pocket.
Defendant testified that Farmer and others from ST had jumped him about two years earlier because he had failed to back up an ST member named Damian when Damian was jumped by a group of Hispanics. Damian was defendant's friend until Damian, Farmer and several others jumped him in retaliation for his failure to back up Damian. Defendant blacked out during the assault. When he woke up, he had a swastika and other markings on his face, the "n" word on his private part, and a black eye and a "busted" lip. Defendant testified that although he yelled "TCB" as he drove off, he was not a member of TCB and did not assault Farmer on behalf of TCB. Rather, it was entirely a personal matter.
Farmer, who has a swastika tattoo on his hand, testified that although he had friends in ST, he was not a member. He testified that he had not had any prior altercation with defendant.
LEGAL ANALYSIS
1.
THE COURT PROPERLY INSTRUCTED THE JURY ON MOTIVE AND ON
THE MENTAL STATES REQUIRED PURSUANT TO SECTION 186.22
Defendant was convicted in count 3 of participation in a criminal street gang in violation of section 186.22, subdivision (a), and the jury found true one gang enhancement allegation under section 186.22, subdivision (b)(1) with respect to count 2 and one gang enhancement allegation under section 186.22, subdivision (d) with respect to count 4 (hereafter section 186.22(a), section 186.22(b)(1) and section 186.22(d), respectively). He contends that both the substantive offense and the enhancements have as an element the requirement that the defendant's crime was motivated by a desire to further the interests of the gang. Therefore, he contends, it was error to instruct the jury that motive is not an element of any charged offense and that the prosecutor need not prove motive.
The parties do not appear to recognize that the gang enhancement allegation pertaining to the misdemeanor battery count (count 4) was alleged pursuant to section 186.22(d). The section 186.22(b)(1) enhancement applies only to felonies.
As pertinent here, section 186.22 provides:
"(a) Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.
"(b)(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished . . . by an additional term of two, three, or four years at the court's discretion. [¶] . . . [¶]
"(d) Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days." (Italics added.)
As to the substantive offense, the jury was instructed with CALCRIM No. 1400, which, in pertinent part, provides:
"To prove that the defendant is guilty of [violating section 186.22(a)], the People must prove that:
"1. The defendant actively participated in a criminal street gang; "2. When the defendant participated in the gang, (he/she) knew that members of the gang engage in or have engaged in a pattern of criminal gang activity;
"AND
"3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by:
"a. directly and actively committing a felony offense;
"OR
"b. aiding and abetting a felony offense.
"Active participation means involvement with a criminal street gang in a way that is more than passive or in name only. [¶] . . . [¶]
"As the term is used here, a willful act is one done willingly or on purpose."
The balance of the instruction defines "criminal street gang," "primary activity" and "pattern of criminal gang activity."
As to the enhancements, the jury was instructed with CALCRIM No. 1401, which, as given in this case, provides:
"If you find the defendant guilty of the crime[s] charged . . . , you must then decide whether, for each crime, the People have proved the additional allegation that the defendant committed that crime (for the benefit of[,]/ [or] in association with) a criminal street gang. [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.]
"To prove this allegation, the People must prove that:
"1. The defendant (committed/ [or] attempted to commit) the crime (for the benefit of[,]/ [or] in association with) a criminal street gang;
"AND
"2. The defendant intended to assist, further, or promote criminal conduct by gang members.
"[A criminal street gang is defined in another instruction to which you should refer.]"
CALCRIM No. 370, which the court also gave, states:
"The People are not required to prove that the defendant had a motive to commit (any of the crimes) charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show that the defendant is not guilty."
Defendant's argument mistakenly conflates motive with the mental states required by the pertinent portions of section 186.22. Motive is not synonymous with intent, willfulness or other mental states which constitute the mens rea of a crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 504 (Hillhouse).) Rather, motive "describes the reason a person chooses to commit a crime." (Ibid.)
In People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes), the court addressed the same argument defendant makes in this case. There, the court held: "An intent to further criminal gang activity is no more a 'motive' in legal terms than is any other specific intent. We do not call a premeditated murderer's intent to kill a 'motive,' though his action is motivated by a desire to cause the victim's death. Combined, the instructions here told the jury the prosecution must prove that Fuentes intended to further gang activity but need not show what motivated his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it. . . . [¶] If Fuentes's argument has a superficial attractiveness, it is because of the commonsense concept of a motive. Any reason for doing something can rightly be called a motive in common language, including—but not limited to—reasons that stand behind other reasons. For example, we could say that when A shot B, A was motivated by a wish to kill B, which in turn was motivated by a desire to receive an inheritance, which in turn was motivated by a plan to pay off a debt, which in turn was motivated by a plan to avoid the wrath of a creditor. That is why there is some plausibility in saying the intent to further gang activity is a motive for committing a murder: A wish to kill the victim was a reason for the shooting, and a wish to further gang activity stood behind that reason. The jury instructions given here, however, were well adapted to cope with the situation. By listing the various 'intents' the prosecution was required to prove (the intent to kill, the intent to further gang activity), while also saying the prosecution did not have to prove a motive, the instructions told the jury where to cut off the chain of reasons. This was done without saying anything that would confuse a reasonable juror." (Id. at pp. 1139-1140, italics added.)
Defendant acknowledges the holding Fuentes, supra, 171 Cal.App.4th 1133, but contends that its analysis is erroneous. However, the Fuentes court's reasoning is consistent with the California Supreme Court's opinion in Hillhouse, supra, 27 Cal.4th 469. There, the court held that there was no conflict between the instruction that motive is not an element of the offense and need not be shown and the instructions concerning the charged offenses, which included murder, kidnapping for robbery and robbery. The court held that although the crimes entailed elements of intent or malice, motive was not an element of any of them. Furthermore, the court held that instructions given by the trial court, instructing that kidnapping for robbery requires the "purpose" of robbing the victim and that the taking in a robbery must be "motivated" by the intent to steal, did not transform either the intent to commit robbery or the intent to steal into a motive. Nor, the court held, would any reasonable juror consider the use of the word "motivated" in the robbery instruction as negating the other instructions regarding the necessary mental states. (Id. at pp. 503-504.)
Defendant relies on People v. Maurer (1995) 32 Cal.App.4th 1121 (Maurer). In that case, the court held that it was error to give the standard instruction on motive because it conflicted with the instruction on the elements of the charged offense. Maurer is distinguishable, however. In that case, the charged offense was misdemeanor child annoyance in violation of section 647.6, perhaps the only criminal offense which does include an element of motive: it applies only to offenders who are "motivated by an unnatural or abnormal sexual interest or intent with respect to children." (Maurer, supra, 32 Cal.App.4th at pp. 1126-1127, italics omitted.) Consequently, in a prosecution under section 647.6, an instruction which tells jurors that motive is "not an element of the crime charged and need not be shown" is in conflict with the instructions on the charged offense and removes an element of the offense from the jury's consideration. (Maurer, at pp. 1127, 1128.) Section 647.6 is an anomaly, however, and motive is not an element in crimes generally. (Maurer, at p. 1126; see also Hillhouse, supra, 27 Cal.4th at p. 504 [distinguishing Maurer].)
As in effect in 1995, when Maurer was decided, section 647.6 did not explicitly include motivation by an unnatural or abnormal sexual interest in children as an element. Rather, that element was deemed to exist by decisional authority. (See In re Gladys R. (1970) 1 Cal.3d 855, 867-868; former § 647.6.) As amended in 2006 and as currently in effect, section 647.6, subdivision (a)(2) explicitly penalizes certain sexual conduct by a person who is "motivated by an unnatural or abnormal sexual interest in children." (See Historical and Statutory Notes, 48C West's Ann. Pen. Code (2012 supp.) foll. § 647.6, p. 99.)
Defendant also contends that because gang evidence is often admissible to prove the motive for a crime, it is "both anomalous" and "constitutionally improper" to admit gang evidence to prove motive while at the same time concluding that motive is not an element in the offense and enhancements provided for in section 186.22. However, the fact that gang evidence is deemed relevant to explain the motive underlying some crimes—often acts of violence arising from conflicts over turf or "respect" which might otherwise be inexplicable to jurors who are not familiar with gang psychology and culture, or crimes committed to benefit or promote a gang—does not elevate motive to an element of either the substantive offense or the gang enhancements contained in section 186.22.
See, e.g., People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1513 (gang expert testimony regarding culture, habits and psychology of gangs admissible because "these subjects are '"sufficiently beyond common experience"'"); People v. Olguin (1994) 31 Cal.App.4th 1355, 1366-1367, 1369-1370 (gang expert testimony admissible re motive to "explain the defendants' desire to discover who crossed out their graffiti" and their violent reaction when murder victim yelled out name of rival gang).
Here, the instruction on motive did not conflict with the instructions explaining the mental state elements of the section 186.22 substantive offense or of the enhancements. Nor was there argument which might have confused the jury. In her closing argument, the prosecutor asserted that defendant was motivated by anger at the assault he believed Farmer had committed on him two years earlier and "the fact that he was disrespected in the past." She also argued that the altercation was not purely personal but was also "gang oriented" because defendant acted with the intent of furthering the interests of the gang and furthering his own stature within the gang. This argument distinguished between motive, within the meaning of CALCRIM No. 370, and the mental states required for the section 186.22 substantive offense and enhancements. Consequently, it is unlikely that jurors understood CALCRIM No. 370 to supersede CALCRIM No. 1400 and CALCRIM No. 1401.
2.
THE SENTENCE ON COUNT 3 VIOLATES SECTION 654
Defendant contends that because his conviction for active gang participation (count 3) was based exclusively on the commission of the assault on Farmer (count 2), for which he was sentenced to four years in prison, section 654 precludes imposition of an unstayed sentence on count 3. We agree.
Section 654, subdivision (a), as relevant here, 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."
"'"Section 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 and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." [Citation.] [¶] 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. Rodriguez (2009) 47 Cal.4th 501, 507, italics omitted.)
"[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, [a] defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, [the] defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.'" (People v. Harrison (1989) 48 Cal.3d 321, 335.) "'A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.' [Citation.]" (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.)
In People v. Sanchez (2009) 179 Cal.App.4th 1297 (Fourth Dist., Div. Two), we addressed the contention that section 654 precluded imposition of an unstayed sentence for gang participation when the conviction for gang participation was itself based on the defendant's commission of another offense, for which he was sentenced to state prison. In that case, the defendant was convicted of two counts of second degree robbery and of active gang participation in violation of section 186.22(a). (People v. Sanchez, supra, at p. 1301.) There was no evidence that he was involved in any felonious conduct other than the charged robberies. (Id. at p. 1306.) Consequently, "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. Gang participation merely requires that the defendant 'willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of that gang . . . .' [Citation.] It does not require that the defendant participated in the underlying felony with the intent to benefit the gang. [Citations.]" (Id. at p. 1315.) After reviewing existing authorities, we concluded 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[,] . . . section 654 bars multiple punishment . . . ." (Ibid.)
Similarly, in this case, there was no evidence that defendant had engaged in felonious conduct as required for purposes of section 186.22(a) other than the assault on Farmer, and the prosecution relied on the two charged felony offenses as the basis for the conviction for gang participation. As noted above, defendant was acquitted of attempted robbery, leaving the assault as the sole basis for the charge of active gang participation. Because the same offense constituted the basis for both counts of conviction, the sentence on count 3 must be stayed.
And, of course, the robbery or attempted robbery of Farmer, of which defendant was acquitted.
Although defendant pleaded guilty to assault with a deadly weapon in a separate case, as discussed in footnote 4, ante, no evidence concerning that crime or conviction was admitted at his trial in this case.
The Attorney General argues that People v. Sanchez, supra, 179 Cal.App.4th 1297 was incorrectly decided and urges us to disavow it. We decline. The Attorney General also points out that the question of how section 654 applies in the context of the crime of active gang participation is pending before the California Supreme Court. (See People v. Mesa, review granted Oct. 27, 2010, S185688, and People v. Duarte, review granted, Feb. 24, 2011, S189174.)
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DISPOSITION
The sentence imposed on count 3 is stayed. The superior court is directed to issue corrected sentencing minutes and a corrected abstract of judgment staying the sentence imposed on count 3. The court is also directed to state the sentence imposed on count 4 and the enhancement associated with that count on the corrected abstract of judgment. The court is directed to forward the corrected minutes and abstract of judgment to the Department of Corrections and Rehabilitation within 30 days after the finality of this opinion.
The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
J.
We concur: HOLLENHORST
Acting P.J.
RICHLI
J.