Opinion
E065820
11-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO SANDOVAL, Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Teresa Torreblanca, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1400926) OPINION APPEAL from the Superior Court of Riverside County. Steven G. Counelis, Judge. Affirmed. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Alberto Sandoval broke into Jane Doe and John Doe's home, assaulted Jane and John (collectively, the Does), who had been sleeping, and then stole items from their car. Defendant appeals from judgment entered following jury convictions for first degree robbery against Jane and John (Pen. Code, § 211 ; counts 1 and 2); burglary (§ 459; count 3); assault by means likely to cause great bodily injury (GBI) against Jane and John (§ 245, subd. (a)(4); counts 4 and 6); and making a criminal threat against Jane (§ 422; count 5). The jury found defendant not guilty of dissuading a witness, Jane (§ 136.1; count 7).
Unless otherwise noted, all statutory references are to the Penal Code.
The jury also found true allegations defendant committed the charged crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(c)); that both victims were over the age of 65 (§ 667.9, subd. (a)); that defendant inflicted GBI on a victim over 70 years of age, as to counts 1, 2, 4, and 6 (§§ 12022.7, subd. (c); 1192.7, subd. (c)(8)); and as to count 3, there was a person other than an accomplice present during the burglary (§ 667.5, subd. (c)(21)). Defendant admitted he served three prior prison terms (prison priors). (§ 667.5, subd. (b).) The trial court sentenced defendant to 47 years 4 months in prison. The court stayed defendant's sentence on count 3 and the attached GBI enhancement under section 654.
Defendant contends there was insufficient evidence to support his conviction for making a criminal threat (count 5); the gang enhancements (§ 186.22, subds. (b)(1)); and the age enhancements (§§ 667.9, subd. (a), 12022.7, subd. (c)). Defendant also argues he received ineffective assistance of counsel (IAC), and his sentence violates section 654. In addition, defendant contends the trial court abused its discretion by admitting evidence of his prior conviction for violating section 186.22, subdivision (a) (prior gang offense) as a predicate offense. We reject defendant's contentions and affirm the judgment.
II
FACTS
At 4:30 a.m., on February 22, 2014, defendant entered Jane and John's home by throwing a cement block through the glass patio door. Jane and her 82-year-old husband, John, were sleeping in separate bedrooms. Jane awoke when defendant turned on her bedroom light. Defendant stood three feet from the side of Jane's bed. She was shocked and scared. Defendant gave her the phone and she dialed 911. Defendant took the phone receiver and said to the 911 operator in a "low and menacing voice," "this is the boy from Rubidoux." He then hung up the phone.
Defendant took a couple of steps back from Jane's bed, looked at Jane, and said, "'I want to f--- you,' or 'I'm going to f--- you.'" Jane sat up, fearing defendant would hurt her. Defendant punched Jane in the nose, breaking her nose. She felt "frozen in place," terrified. Jane lay on her bed for a while after defendant left her bedroom. Defendant did not take anything while in Jane's bedroom. Jane heard a scuffle and a moan or whimper that sounded like it came from John as he went down. A few minutes later, Jane opened her eyes and saw John in her bedroom, standing by her bed with a "blank face." He looked like he was in shock and had been hit in the head, with lots of blood on him.
Jane and John attempted to lock themselves in the bedroom bathroom. They waited there a while and then went to the kitchen to get Jane's cell phone. Jane noticed the backdoor was open to the garage and unlocked. The car doors were also open and the garage lights were on. Jane and John locked the garage door to prevent defendant from reentering and returned to the bathroom because Jane's nose was dripping blood.
When the police arrived, they showed Jane items that had been found in defendant's possession. The items had been taken from the Does' car in the garage. They included a Fastrak pass, a small red duffle bag containing a blanket, CDs, and car related documents, including a car lease agreement and car information booklet. Jane found inside her home items that did not belong to her, including a pencil box and its contents scattered on the floor in the hallway.
The police drove Jane a short distance to where defendant was in custody, sitting in the middle of the street next to a patrol car. Jane had no problem identifying defendant. When he was shown to Jane, defendant flashed a gang hand sign at her. Jane was familiar with the gang hand sign because she had been dean of students at a continuation school.
John testified that he was 82 years old. On February 22, 2014, while sleeping in a room separate from his wife, he awoke to the sound of someone breaking the patio door glass. John got out of bed and walked out of his bedroom to see what was going on. The lights were off and it was dark. John saw Jane trying to call 911. Someone attacked John from behind and hit him in his face with what seemed like a remote control. He was hit in the mouth, requiring stiches to a cut underneath his lip. John had other cuts and bruising on his face by his right eye, nose, and lips. John did not remember being hit. He assumed he lost consciousness. He and Jane were transported to the hospital for treatment of their injuries.
John's testimony is from the preliminary hearing. The parties stipulated at trial to allow the jury to watch the videotape of John's preliminary hearing testimony because he was unavailable to testify at trial. He died in June 2015, eight months before the trial.
Sheriff's Deputy Torres responded to Jane's initial 911 call. Upon arriving at the Does' home, Torres noticed defendant standing near the front door of another house on the street. Torres saw defendant jump over a garden wall, and attempt to open a security door. Defendant was carrying a red handbag with papers sticking out. Torres announced he was from the sheriff's department. Defendant reached into his waistband. Torres pulled out his gun and ordered defendant to the ground. Defendant went to his knees and dropped the red handbag. Torres told defendant to "prone out." Defendant momentarily complied but then twice pushed himself back up. The second time, Torres tasered him and defendant became compliant.
Defendant told Torres he was from a local gang and his "homies" were going to come save him. Torres noticed defendant had blood on his clothing but did not have any wounds. Torres believed defendant showed signs of being on a controlled substance, such as methamphetamine or cocaine.
III
SUFFICIENCY OF EVIDENCE
Defendant contends the evidence was insufficient to support the jury's findings that (1) defendant made a criminal threat to kill or inflict GBI upon Jane; (2) defendant's offenses were committed for the benefit of, at the direction of, or in association with a gang; and (3) defendant inflicted GBI on a person at least 70 years old, and robbed someone over 65 years old. A. Standard of Review
In reviewing a claim of insufficient evidence, "'"we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."'" (People v. Wilson (2008) 44 Cal.4th 758, 806.) "'We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. [Citation.] Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.'" (Ibid.) B. Criminal Threat Conviction
Defendant argues there was insufficient evidence to support his conviction under section 422 for making a criminal threat against Jane based on two grounds: (1) Defendant's statement made to Jane that "I want to f--- you" or "I'm going to f--- you," did not constitute a threat; and (2) even if it was a threat, it was not a threat to kill or cause GBI.
Section 422 prohibits "[a]ny person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety . . . ."
Defendant argues that his statement could be construed as a threat to rape Jane, and rape is not a crime that necessarily will result in GBI or death. He notes this is reflected by the fact there is a separate rape enhancement for inflicting GBI during a rape. (§ 12022.8.) Rape is defined in relevant part as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, "[w]here it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (§ 261, subd. (a)(2).)
Although rape does not in all instances result in GBI or death, in the instant case, under the totality of the circumstances, the jury could reasonably find that defendant's rash threat, made after breaking into Jane's home, was not only a threat to rape Jane, but was also a threat to cause her GBI, if not death. "Section 422 demands that the purported threat be examined 'on its face and under the circumstances in which it was made.' The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137.) Here, at the time of defendant's threat, Jane was alone in her bedroom with defendant and was over 80 years old. The jury could reasonably conclude under such circumstances the threat was made that, at Jane's age, the threat of being forcefully and violently raped by defendant was also a threat to cause GBI.
Although Jane was not certain whether defendant told her "I want to f--- you" or "I'm going to f--- you," either statement supported the jury's finding that the statement constituted a criminal threat under section 422. The jury could reasonably infer that defendant intended that Jane construe the statement as a threat that he was going to violently rape her and, in the process, inflict GBI upon her. C. Criminal Street Gang Enhancement
Defendant contends there was insufficient evidence to support his gang enhancements imposed under section 186.22, subdivision (b)(1). Defendant argues there was insufficient evidence he committed each offense for the benefit of a gang and with intent to promote, further, or assist criminal conduct by gang members.
Section 186.22, subdivision (b)(1) provides a sentencing enhancement for felonies "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." The prosecution has the burden of proof. (People v. Weddington (2016) 246 Cal.App.4th 468, 484.) To prove the crime is "gang related," the prosecution need only prove one of three alternatives: the crime was committed "(1) for the benefit of, (2) at the direction of, or (3) in association with a gang." (People v. Morales (2003) 112 Cal.App.4th 1176, 1198, italics omitted.) "'Expert opinion that particular criminal conduct benefited a gang' . . . can be sufficient to support the Penal Code section 186.22, subdivision (b)(1), gang enhancement. [Citation.]" (People v. Vang (2011) 52 Cal.4th 1038, 1048.)
Here, there was sufficient evidence to support defendant's gang enhancements attaching to each of the charges. Defendant argues the gang expert testimony was deficient because Cortez did not testify defendant committed the crimes for the benefit of the gang, identify what crimes benefited the gang, or explain why or how the crimes benefitted the gang. We disagree that Cortez's opinion testimony was deficient, unfounded, vague, and ambiguous. Cortez provided a sufficient foundation for his opinions. He explained that the location of the charged crimes was in Rubidoux, which was within defendant's gang's turf; in gang culture, "Rubidoux" is synonymous with the name of defendant's gang; defendant identified himself as "Rubidoux Boy" during the commission of the crimes; and there was no reason to do so other than for the purpose of benefiting his gang by instilling fear and intimidation, and increasing the gang's reputation for violence in the community and respect by rival gangs. Defendant admitted he was a member of a gang, and was an active gang participant at the time of the charged crimes. Cortez also explained that the letter, "W," is a common symbol of defendant's gang. Flashing the "W" hand sign showed allegiance to defendant's gang and was used to intimidate, threaten violence, and discourage witnesses from cooperating with law enforcement. Although defendant flashed the "W" gang hand-sign shortly after he committed the crimes, a reasonable inference can be made that he wanted it to be known that he had been acting on behalf of his gang during the commission of the crimes and intended to instill fear and intimidate Jane.
Cortez testified that, based on the totality of the evidence, the charged crimes "benefitted the gang and actually gave some respect to [defendant]." "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22(b)(1). (See, e.g., People v. Vazquez (2009) 178 Cal.App.4th 347, 354 [relying on expert opinion that the murder of a nongang member benefited the gang because ' violent crimes like murder elevate the status of the gang within gang culture and intimidate neighborhood residents who are, as a result, "fearful to come forward, assist law enforcement, testify in court, or even report crimes that they're victims of for fear that they may be the gang's next victim or at least retaliated on by that gang . . ."']" (People v. Albillar (2010) 51 Cal.4th 47, 63.)
Defendant argues defendant's gang expert failed to unequivocally testify that defendant committed the charged crimes for the benefit of defendant's gang and with the intent to promote, further, or assist criminal conduct by the gang. Defendant also argues there was no factual or logical basis for inferring this. We disagree. Cortez's testimony was sufficiently clear that, in his opinion, defendant committed the charged crimes for the benefit of defendant's gang. He stated his opinion was based primarily on defendant telling the 911 operator he was a "Rubidoux Boy" and flashing a "W" gang hand sign during Jane's in-field identification of defendant. Furthermore, the jury could reasonably infer this from Cortez's testimony and other evidence presented during the trial, including Deputy Torres's testimony that, while arresting defendant, defendant said he was from a particular gang and "his homies were going to arrive and save him." There was also evidence defendant was an active member of the gang at the time of the charged crimes, the crimes were committed within defendant's gang's turf, and the charged crimes were the types of crimes defendant's gang commonly committed. There was thus sufficient evidence to support defendant's gang enhancements. D. Age Enhancements
Defendant contends there was insufficient evidence supporting the age enhancements attaching to the convictions for crimes committed against Jane (counts 1 and 4). Defendant argues the record does not contain substantial evidence of her age at the time of the crimes. One of the age enhancements imposed was under section 667.9, subdivision (a), which provides that any person who commits robbery "against a person who is 65 years of age or older . . . shall receive a one-year enhancement for each violation." (§ 667.9, subd. (a).) The other age enhancement is under section 12022.7, subdivision (c), which applies when "[a]ny person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony."
Jane did not testify to her age. John, however, testified that he had been married to Jane for 59 years, and was 82 years old. Jane testified at trial that, at the time of the crimes, she had been married to John for nearly 50 years. From this testimony, it can be reasonably deduced that Jane was at least 65 years old. Viewing the evidence in the light most favorable to the judgment and resolving conflicts of evidence in favor of the prevailing party, we may rely on John's testimony that the Does were married for 59 years. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Such evidence was sufficient to support a reasonable finding that Jane was at least 65 years old. Any finding to the contrary would have required the improbability that Jane was less than six years old when she married John, who would have been 21 years old. Even if John and Jane were married for only 50 years, rather than 59, it would be reasonable to find that Jane was at least 65 years old when the crimes were committed. There is a high probability that Jane was at least 15 years old when she married John. The evidence was therefore more than sufficient to support the age enhancements.
We note Jane testified during the preliminary hearing that, at the time of the charged crimes, she was 80 years old and John was 81. Unfortunately, this testimony was not presented at the trial and therefore could not be relied upon to support the age enhancements. Also, at the sentencing hearing, Jane stated that, as of June 2015, she and John would have been married 60 years and that he died two weeks before their anniversary.
IV
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends his attorney failed to provide him with effective representation. He bases his IAC claim on the following two grounds: (1) his attorney failed to object to the prosecution expert's testimony that defendant intended that his statement, "This is the boy from Rubidoux," would benefit his gang, and (2) defense counsel asked the gang expert on cross-examination whether defendant's crimes benefitted defendant's gang. A. IAC Applicable Law
In order to successfully challenge a guilty conviction on the ground of IAC, a defendant must establish both: "(1) that counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, "'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' [Citation.]"'" (People v. Holt (1997) 15 Cal.4th 619, 703, quoting People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
"Because we are limited to the record on appeal, we must reject the contention that counsel provided ineffective assistance if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation." (People v. Burgener (2003) 29 Cal.4th 833, 880.) In reviewing a claim of IAC, a court must view the actions of trial counsel with deference and indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 689 (Strickland); People v. Holt, supra, 15 Cal.4th at p. 703.) B. Failure to Object to Gang Expert's Testimony
Defendant argues his attorney committed IAC by failing to object to the following trial testimony by the prosecution's gang expert, Cortez:
"Q: And regarding the facts of this particular case, what are some of the things that tell you whether or not it's gang-related or not?
"A. By Mr. Sandoval's statements. There was no reason to, to identify himself as Rubidoux Boy outside of benefitting West Side Riva, to instill fear, to make that gang statement. That's the same statement that the members use right before they do drive-by shootings. [¶] So, this was not a drive-by shooting, but it's a gang-related crime, only because he - he began that crime by stating who he was, he was Rubidoux Boy, and also flashing the W hand sign during an in-field showup." On cross-examination, the gang expert added that, in his opinion, the charged crime "benefitted the gang and actually gave some respect to [defendant]."
"'California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Id., subd. (a).) The subject matter of the culture and habits of criminal street gangs . . . meets this criterion.'" (People v. Vang, supra, 52 Cal.4th at p. 1044, quoting People v. Gardeley (1996) 14 Cal.4th 605, 617.) An opinion that is otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact. (People v. Roberts (2010) 184 Cal.App.4th 1149, 1193-1194; People v. Killebrew (2002) 103 Cal.App.4th 644, 651 (Killebrew).)
Defendant argues his attorney should have objected to the above testimony as inadmissible under Killebrew, supra, 103 Cal.App.4th 644, on the ground the prosecution's gang expert improperly testified to defendant's subjective knowledge and intent. In Killebrew, the court held that it was improper for a police officer to testify 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." (Killebrew, supra, 103 Cal.App.4th at p. 652.) The Killebrew court held that the officer had effectively testified to the subjective knowledge and intent of each occupant of the car. (Ibid.) Citing Evidence Code section 801, the court held that the subjective knowledge and intent possessed by the participants in a crime is not a "topic . . . for which expert testimony is necessary." (Id. at p. 658.) Rather, "it is the type of opinion that did nothing more than inform the jury how [the expert] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded. [Citation.]" (Ibid.)
In People v. Roberts, supra, 184 Cal.App.4th 1149, the court concluded that Killebrew, supra, 103 Cal.App.4th 644, did not prohibit expert witness testimony regarding a defendant's knowledge and intent. (Id. at p. 658; Roberts, at p. 1194; People v. Vang, supra, 52 Cal.4th at p. 1049.) "Killebrew does not generally prohibit such testimony; rather, the reviewing court concluded that in view of the facts and circumstances of that case, the expert's opinion about the defendant's subjective knowledge and intent was inadmissible." (Roberts, at p. 1194.) In Killebrew, the expert's opinion was the only evidence offered to establish the elements of the crime. "As such, it was 'the type of opinion that did nothing more than inform the jury how [the expert] believed the case should be decided.'" (Roberts, at p. 1194, quoting Killebrew, at p. 658.) Without other evidence, the expert opinion may invade the province of the trier of fact.
Here, there was other evidence establishing defendant's knowledge and subjective intent that defendant's crimes were committed for the benefit of defendant's gang. Such evidence included opinion testimony beyond common experience, founded on evidence of matters of gang culture and customs of criminal street gangs, as well as Cortez's understanding of the way in which a street gang would benefit from the criminal conduct of its members. (People v. Vang, supra, 52 Cal.4th at p. 1044, quoting People v. Gardeley, supra, 14 Cal.4th at p. 617.) Defendant has not established IAC because he has not demonstrated that Cortez's expert testimony was inadmissible. Absent such a showing, defendant has failed to establish his trial counsel's failure to object to the testimony constituted representation below an objective standard of reasonableness or prejudice. There was no prejudice in defense counsel not objecting to the expert testimony because it is highly likely that, had defense counsel objected, the trial court would have overruled the objection on the ground the expert testimony was admissible. (Evid. Code, § 353, subd. (b).) C. Asking If Defendant's Crimes Benefitted Defendant's Gang
Defendant argues that his attorney committed IAC by asking the prosecution's gang expert, Cortez, whether defendant's crimes benefitted defendant's gang and gave him some respect. Defendant argues his attorney should have known better than to elicit this critical prosecution testimony, which was favorable to the prosecution and which the prosecutor had overlooked.
But on direct examination, Cortez had already testified that the crime was gang-related and benefited defendant's gang: "[I]t's a gang-related crime . . . because . . . he began that crime by stating who he was, he was Rubidoux Boy, and also flashing the W hand sign during an in-field showup." Cortez further stated that defendant's identification of himself to the 911 operator as "Rubidoux Boy" benefitted his gang by instilling fear. There was also evidence defendant was an active member of the gang, the charged crimes were committed in defendant's gang's territory, which was in Rubidoux, and his gang identified with the word, "Rubidoux."
Furthermore, there is no reasonable probability that defendant would have received a more favorable outcome in the absence of defendant's attorney's inquiry of whether defendant's crimes benefitted defendant's gang. If there was any error, it was not prejudicial error. There is not a reasonable probability that, but for counsel's error, the result would have been more favorable to defendant. (Strickland, supra, 466 U.S. 668.) Because defendant cannot demonstrate prejudice, we reject his claim that counsel was ineffective. (Id. at p. 687; People v. Mendoza (2000) 24 Cal.4th 130, 158-159.) Without a showing of sufficient prejudice, we may reject defendant's claim of ineffective assistance of counsel. (Strickland, at p. 687; People v. Brodit (1998) 61 Cal.App.4th 1312, 1332.)
V
SECTION 654 SENTENCING OBJECTIONS
Defendant contends the trial court committed three instances of violating the section 654 prohibition against multiple punishment for a single criminal act or course of conduct with a single objective, by (1) imposing consecutive sentences for both the robbery and assault convictions (counts 1, 2, 4, 6); (2) imposing consecutive sentences for both the robbery and making a criminal threat convictions involving Jane (counts 1, 5); and (3) imposing GBI enhancements attaching to the robbery and assault convictions (counts 1, 2, 4, 6). A. Law Applicable to Sentencing Under Section 654
Section 654 provides in relevant part: "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 precludes multiple punishments for a single "discrete physical act," and when a defendant engages in a "course of conduct encompassing several acts pursued with a single objective." (People v. Corpening (2016) 2 Cal.5th 307, 311; People v. Mitchell (2016) 4 Cal.App.5th 349, 352; People v. Mesa (2012) 54 Cal.4th 191, 199 [defendant cannot be punished twice for single act even if defendant harbored multiple criminal objectives].) If each of the offenses was incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (People v. Jackson (2016) 1 Cal.5th 269, 354.)
A course of conduct divisible in time, even if directed to one objective, may also give rise to multiple punishments. (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1289.) "'This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.'" (Ibid.; see People v. Clair (2011) 197 Cal.App.4th 949, 960.)
"Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense." (People v. Jackson, supra, 1 Cal.5th at p. 354; People v. Capistrano (2014) 59 Cal.4th 830, 886 [to permit multiple punishments, there must be evidence to support the finding the defendant formed a separate intent and objective for each offense for which he was sentenced].) We review for substantial evidence the court's implied or express factual finding of whether there was a single criminal act or a course of conduct with a single criminal objective. (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113; People v. Coleman (1989) 48 Cal.3d 112, 162.) We view the evidence in the light most favorable to the People and presume in support of the court's order the existence of every fact the trier could reasonably deduce from the evidence. (People v. Tarris (2009) 180 Cal.App.4th 612, 627.) Where the relevant facts are undisputed, our review of the court's section 654 ruling is de novo. (People v. Corpening, supra, 2 Cal.5th at p. 312.) B. Consecutive Sentencing for Robbery and Assault Convictions
Defendant contends the trial court erred in imposing separate sentences for each of the assault (counts 4 and 6) and robbery convictions (counts 1 and 2). He argues that sentencing on the assault convictions (counts 4 and 6) should have been stayed under section 654.
Defendant was convicted in counts 1 and 2 of robbing Jane and John (§ 211), and in counts 4 and 6 of assaulting Jane and John with force likely to cause GBI (§ 245, subd. (a)(4)). Defendant argues that the assault crimes were part of the same objective and course of conduct as the robbery crimes, because the assaults constituted the requisite element of force or fear used in committing the robbery crimes. "'Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' [Citation.]" (People v. Corpening, supra, 2 Cal.5th at p. 314, fn. 3; § 211.)
Defendant cites In re Chapman (1954) 43 Cal.2d 385 (Chapman) for the proposition that consecutive sentences cannot be imposed for assault and robbery where the assault was the means of perpetrating the robbery. In Chapman, the defendants were convicted of robbery committed when the defendants, armed with a revolver, took $75 from the victim. The defendants were also convicted of assault by means of force likely to produce GBI. The assault was committed after the robbery, when the defendant tackled the victim as he tried to flee.
The defendant in Chapman argued the trial court erred under section 654 in imposing separate sentencing on the assault and robbery convictions, because the evidence demonstrated that the assault was relied upon to establish the essential element of force or fear required for the robbery conviction. The court in Chapman disagreed. The court explained that, "the pursuit of the victim and the striking of him with the weapon constituted a separate crime of assault with intent to commit great bodily harm. As respondent argues, to constitute first degree robbery it is necessary only that the accused be armed with a deadly weapon and that he take the property of another from his person against his will 'by means of force or fear' [citations]; if after the robbery is accomplished the robber beats the victim with the weapon, he is guilty of the separate crime of assault by means of force likely to produce great bodily injury." (Chapman, supra, 43 Cal.2d at p. 389.)
The Chapman court further stated that, "if there is but a single act of force proved as an essential element of the crime of robbery then such act of force cannot also be availed of as constituting a separate crime and only one punishment may be had. The applicability of section 654 depends upon whether a separate and distinct act can be established as the basis of each conviction. [Citation.] Multiple convictions have been affirmed in cases in which separate and divisible acts have been proved as the basis of each conviction even though those acts were closely connected in time and were part of the same criminal venture. [Citations.] It is only when the two offenses are committed by the same act or when that act is essential to both that they may not both be punished. [Citation.]" (Chapman, supra, 43 Cal.2d at pp. 389-390.)
Here, defendant's acts of punching Jane and John in the face were not essential to the commission of the robbery. They were gratuitous, independent acts of violence. Apart from these acts of physical violence, there were other acts of fear that satisfied the element of force or fear required for the robbery conviction. Such acts included defendant's acts of breaking into the Does' home through the glass slider, awakening Jane and standing next to Jane's bed, staring at her and menacingly telling the 911 operator, "This is the boy from Rubidoux," and then hanging up. Jane testified she was "shocked and scared." These circumstances, as well as Jane's awareness that defendant assaulted John, were sufficient to support the force or fear element required for the robbery conviction involving Jane. The separate act of punching Jane in the nose was not essential to the robbery conviction because defendant committed other acts of fear that supported the robbery conviction. The trial court could reasonably find based on the evidence before it that the robbery and assault of Jane were not incident to one objective or a means toward the objective of the commission of the robbery so as to preclude multiple punishments under section 654 for the assault and robbery offenses involving Jane (People v. Kurtenbach, supra, 204 Cal.App.4th at p. 1288).
Likewise, the trial court reasonably found that the acts of robbing and assaulting John were not incident to the single objective of robbing John, so as to preclude multiple punishments for the assault and robbery convictions under section 654 (People v. Kurtenbach, supra, 204 Cal.App.4th at p. 1288). As with the robbery of Jane, there was evidence of the requisite element of the use of force or fear when defendant robbed John, independent from defendant's ancillary act of cock-punching John in the face. Such evidence of fear included John's testimony he heard defendant breaking into his home at 4:30 a.m.; John's awareness defendant had punched Jane in the face; and evidence of John and Jane, who were over the age of 80 years, cowering in fear in a locked bathroom, while defendant had free reign of their home and stole items out of the Does' car in the garage.
The fact that the gratuitous acts of defendant punching the Does in the face occurred before defendant stole property from the Does does not preclude finding the assaults separate and independent from the robberies. "It is one thing to commit a criminal act in order to accomplish another; Penal Code section 654 applies there. But that section cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense. Once robbers have neutralized any potential resistance by the victims, an assault . . . may be found by the trier of fact to have been done for an independent reason." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.)
In the instant case, there was no potential resistance the moment defendant broke into the Does' home while the elderly victims lay sleeping in their beds in separate rooms. It could be reasonably inferred from the evidence that it was apparent to defendant that the victims were helpless, scared, defenseless, not likely to resist, and no threat to defendant whatsoever, to the point defendant even permitted Jane to call 911. While the assaults, no doubt, had the effect of increasing the Does' fear, the Does already were experiencing extreme fear. Because defendant had neutralized any potential resistance by the victims by other means, defendant's acts of punching the defenseless, unresisting elderly victims' in the face were senseless, extreme, brutal, and totally unnecessary to the commission of the robberies. "[A] separate act of violence against an unresisting victim or witness, whether gratuitous . . . may be found not incidental to robbery for purposes of section 654. If the trier of fact determines the crimes have different intents and motives, multiple punishments are appropriate." (Nguyen, supra, 204 Cal.App.3d at p. 193.) This is so even if the robbery is considered to be ongoing during the assault, where the one offense does not constitute an element of another. (Ibid.)
"[A]t some point the means to achieve an objective may become so extreme they can no longer be termed 'incidental' and must be considered to express a different and a more sinister goal than mere successful commission of the original crime. [¶] We should not lose sight of the purpose underlying section 654, which is 'to insure that a defendant's punishment will be commensurate with his culpability.' [Citations.]" (People v. Nguyen, supra, 204 Cal.App.3d at p. 191.) Here, where defendant's infliction of physical violence upon two elderly, defenseless victims was cruel, brutal, and entirely unnecessary to accomplishing defendant's objective of stealing property from the Does, the trial court properly sentenced defendant separately for the assault and robbery offenses. C. Consecutive Sentencing for the Robbery and Criminal Threat Offenses
Defendant contends the trial court violated section 654 by imposing consecutive sentences for the robbery of Jane and the criminal threat offense. After breaking into the Does' home, defendant appeared in Jane's bedroom. He turned on the light and woke up Jane. After defendant told her, "I want to f--- you" or "I'm going to f--- you," Jane sat up, whereupon defendant struck her in the nose. Later, defendant went out to the garage and stole items from the Does' car.
Defendant argues the trial court should not have imposed consecutive sentences on the robbery and criminal threat convictions because defendant's acts of committing the criminal threat and assault offenses upon Jane were indivisible from the evidence relied upon to prove the fear element required for the robbery conviction. Defendant therefore concludes he can only be punished for the robbery, with sentencing on the criminal threat and assault offenses stayed under section 654. We disagree for the same reasons we concluded in the preceding section that the trial court properly imposed separate sentences for the robberies and assaults. Defendant's criminal threat act was an ancillary, gratuitous, sexual threat, separate and unnecessary to accomplishing defendant's unrelated objective of robbing Jane. Defendant committed acts other than the criminal threat to invoke fear in Jane sufficient to support the requisite fear element for robbery.
Defendant's act of threatening to rape Jane manifested a separate intent and criminal objective independent from defendant's act of robbing Jane. Each offense could therefore be punished separately. (People v. Trotter (1992) 7 Cal.App.4th 363, 367; People v. Harrison (1989) 48 Cal.3d 321, 337-338.) It was thus appropriate for the trial court to punish defendant separately for the criminal threat offense and robbery. D. Multiple GBI Enhancements
Defendant argues the trial court erred in imposing GBI enhancements (§ 12022.7, subd. (c)) on counts 4 and 6, whereas the same enhancements were also imposed on counts 1 and 2. Defendant contends that under section 654, the trial court could impose the GBI enhancement only once as to each victim, because he inflicted only one act of GBI upon each victim. We disagree because the robberies and assaults were separate, divisible criminal acts.
In instances of multiple enhancements arising out of the same substantive offense, courts must first determine whether the applicable enhancement statutes address the permissibility of multiple punishments. (People v. Wooten (2013) 214 Cal.App.4th 121, 129; People v. Ahmed (2011) 53 Cal.4th 156, 163.) When specific statutes do not address this, the court must then determine whether 654 applies to the enhancements. (Wooten, at p. 129; Ahmed, at p. 163.)
Here, where the defendant committed separate crimes, with the same enhancement attaching to both crimes and there is no applicable specific statute providing otherwise, section 654 does not apply. "When the criminal acts forming the basis for convictions of multiple substantive offenses are divisible—i.e., reflecting separate intents, objectives, or events—then section 654 has been held inapplicable. [Citation.] Thus, it follows that if section 654 does not bar punishment for two crimes, then it cannot bar punishment for the same enhancements attached to those separate substantive offenses. This is true even if the same type of sentence enhancement is applied to the underlying offenses." (People v. Wooten, supra, 214 Cal.App.4th at p. 130.)
The trial court imposed GBI enhancements under section 12022.7, subdivision (c) on counts 1, 2, 4, and 6. Counts 1 and 2 were for robbery of Jane and John. Counts 4 and 6 were for assault of Jane and John. As discussed above, each of the robbery and assault crimes were separate substantive offenses, punishable by imposition of separate sentences on each crime. Likewise, attaching the same GBI enhancement to each separate crime was permissible. (People v. Wooten, supra, 214 Cal.App.4th at p. 131.)
VI
ADMISSIBILITY OF EVIDENCE OF GANG PRIOR
Defendant objects to the trial court's admission of evidence of defendant's prior conviction for participation in a criminal street gang (gang prior; § 186.22, subd. (a)) as a predicate offense used to establish a pattern of gang activity under section 186.22, subdivision (f). Defendant argues evidence of the gang prior was inadmissible because the offense is not listed in section 186.22, subdivision (e) as a qualifying predicate offense. Defendant further argues that he was unduly prejudiced by admission of the evidence of his gang prior, and admission of the evidence violated his right to due process by making his trial fundamentally unfair. A. Procedural Background
For impeachment purposes, the People requested in their trial brief admission of evidence of defendant's prior convictions, including his gang prior (§ 186.22, subd. (a)). The People also filed a trial brief and supplemental trial brief regarding admissibility of gang evidence. The People argued that admission of defendant's judicially noticed, certified court records of his gang prior were relevant on multiple grounds, including to establish the gang enhancements, and for impeachment and credibility purposes. The evidence was also admissible for the purpose of providing the gang expert with a basis for determining that defendant was an active gang member, defendant knew of the gang's criminal gang activity, the gang prior was part of a pattern of gang activity, and defendant committed the charged crimes for the benefit of a gang.
Defense counsel objected to evidence of the gang prior. Defense counsel argued that evidence defendant had a gang conviction was unduly prejudicial and would prevent him from receiving a fair trial. Defense counsel further argued that defendant's relationship with a gang could be established by evidence other than his gang prior. Defense counsel asserts that the trial court therefore should have excluded evidence of defendant's gang prior under Evidence Code section 352 and People v. Tran (2011) 51 Cal.4th 1040.
Relying on Tran, the trial court ruled that evidence of the gang prior was admissible on the grounds that allowing the evidence would not necessitate undue consumption of time, or create a substantial danger of undue prejudice or of confusing the issues or misleading the jury. The court further noted the instant case involved crimes that were more serious than the prior offenses.
At trial, Investigator Cortez testified he had researched defendant's gang, including reviewing reports of crimes the gang committed and related court records of gang members' convictions. In case No. RIF1102450, defendant pled guilty to, and was convicted of being an active gang participant (§ 186.22, subd. (a)). Cortez further testified that defendant and his gang would have benefited from the charged offenses defendant committed in 2014. B. Admissibility of Evidence of Gang Prior to Prove Pattern of Gang Activity
Defendant argues evidence of defendant's gang prior (§ 186.22, subd. (a)) should not have been admitted to prove defendant's gang qualified as a criminal street gang and the gang had committed a pattern of criminal gang activity under section 186.22, subdivisions (e) and (f). Section 186.22, subdivision (f) defines a "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (Italics added.)
Subdivision (e) of section 186.22 defines a "'pattern of criminal gang activity'" as "the commission of . . . or conviction of two or more of the following offenses, provided . . . the offenses were committed on separate occasions, or by two or more persons." The list of predicate offenses does not include the crime of active participation in a gang (§ 186.22, subd. (a)). Therefore evidence of defendant's gang prior did not qualify under section 186.22, subdivisions (e) and (f) as a predicate offense. Nevertheless, evidence of defendant's gang prior was admissible for other purposes. C. Admissibility of Evidence of Gang Prior to Prove Gang Enhancements
Defendant argues the trial court abused its discretion in admitting evidence of defendant's gang prior to prove he was an active gang participant, had knowledge his gang was a criminal street gang, and had knowledge of the gang's criminal activities. Defendant maintains there was no need for the evidence because the prosecution was not required to prove he knew his gang was a criminal street gang. In addition, defendant argues that the evidence had little probative value because the gang prior was in 2011, nearly five years before the trial in the instant case. Therefore the gang prior evidence should have been excluded under Evidence Code section 352 as highly prejudicial.
"Evidence Code section 352 requires the exclusion of relevant evidence only when its probative value is substantially outweighed by its prejudicial effect. 'Evidence is substantially more prejudicial than probative [citation] [only] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].' [Citation.]" (People v. Tran, supra, 51 Cal.4th at p. 1047.) Evidence of a prior offense is less prejudicial if it has resulted in a conviction or "when testimony describing the defendant's uncharged acts is no stronger or more inflammatory than the testimony concerning the charged offense." (Ibid.)
In Tran, the court held that evidence of a defendant's prior offense, relied upon as a predicate offense, was admissible to establish the elements of a section 186.22 gang crime. (People v. Tran, supra, 51 Cal.4th at pp. 1048-1049.) The court stated that such evidence should not be automatically excluded even though the evidence is prejudicial and even though the People could use alternative evidence of other predicate offenses. (Id. at p. 1049.) Such evidence may be highly relevant to proving the requisite elements of a gang crime, apart from establishing a predicate offense. The Tran court further noted that "the jury inevitably and necessarily will in any event receive evidence tending to show the defendant actively supported the street gang's criminal activities. That the defendant was personally involved in some of those activities typically will not so increase the prejudicial nature of the evidence as to unfairly bias the jury against the defendant." (Id. at p. 1048.)
While the defendant in the instant case was not charged with committing the crime of active participation in a criminal street gang (§ 186.22, subd. (a)), gang enhancements were alleged (§ 186.22, subd. (b)). In order to prove the gang enhancement allegations, the prosecution was required to prove that the underlying charged crime was "'committed for the benefit of, at the direction of, or in association with any criminal street gang' (the gang-related prong), 'with the specific intent to promote, further, or assist in any criminal conduct by gang members' (the specific intent prong)." (People v. Rios (2013) 222 Cal.App.4th 542, 564.) As with proving a gang crime under section 186.22, subdivision (a), proving a gang enhancement under section 186.22, subdivision (b) requires proof of a criminal street gang and the commission of a pattern of criminal gang activity as defined in section 186.22.
Here, the gang prior was relevant to proving the gang enhancements, to showing defendant's involvement in a gang within three years of committing the charged crimes, and to establishing that the charged crimes were committed for the benefit of the gang. (See CALCRIM No. 1401; § 186.22, subd. (b)(1), and (d).) The gang prior evidence was not unduly prejudicial or time consuming because the gang prior had resulted in a conviction, which was established by judicial notice of court records of the conviction. Also, the evidence of the gang prior was no stronger or more inflammatory than the evidence of the charged offenses. (People v. Tran, supra, 51 Cal.4th at p. 1047.) Because the trial court reasonably concluded under Evidence Code section 352 that the probative value of the gang prior evidence outweighed its prejudicial effect, the trial court did not abuse its discretion in admitting evidence of defendant's gang prior.
VII
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
P. J. SLOUGH
J.