Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. NA077068. Richard R. Romero, Judge. Remanded for resentencing.
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, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Luis Sandoval contends that the evidence before the trial court was insufficient to support the jury’s finding that he personally and intentionally discharged a firearm during the commission of an attempted murder (Pen. Code, § 12022.53, subd. (c)); that several sentence enhancements were properly imposed; and that the sentences on two of the counts against him should have been stayed under section 654. Conceding that remand for resentencing is required, the People request that the trial court be directed to impose court security fees consistent with section 1465.8. We strike two enhancements, stay the execution of sentence on two counts, and remand for resentencing on two counts.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 6, 2008, Jacob Carter, Damon Blackmon, and Terrell Bryant were at a Long Beach bar together. Sandoval entered the bar, walked directly to the outside patio, and began a verbal altercation with Blackmon and/or Bryant that included the disclosure of their gang affiliations and territories. Blackmon identified himself as being from Compton-that is, a member of the Santana Block Compton Crips. Sandoval said that he was “Long Beach CK, ” “CK” meaning “Crip Killer.” Bryant, a former member of the Long Beach Insane Crips, claimed not to have disclosed this affiliation to Sandoval.
The bartender, Deborah Arlin, observed that Sandoval and Blackmon were “nose to nose”; at first she thought they were friends, but soon saw that they were pushing, yelling, and scuffling. Arlin ordered Sandoval to leave the bar for his safety, locking the door behind him for a few minutes “to make sure nobody could continue” the dispute outside.
Near closing time, Sandoval returned to the bar. Arlin saw him pull a gun from his waistband as he strode purposefully out to the patio. The accounts of what happened next are not entirely consistent. Arlin said that by the time she could get out to the patio, “It had already started. [¶]... [¶] When I was going down the ramp into the back patio, all I saw basically was a pile of guys. There was no one specific-all I saw was backs, arms, elbows, and then I heard shots.” Bar patron Arnold Chavez saw three men heading out to the patio, one of whom was Sandoval, and then heard shouts of “He’s got a gun.” He heard shots and heard Carter call out, “I got shot.”
Carter testified that he and Bryant were on the patio when Sandoval and another man re-entered the bar. Sandoval, holding a gun at chest level, “came running through the door to the patio and said, ‘What’s up with it now. I’m going to get you nigger.’” According to Carter, Bryant jumped at Sandoval, grabbing him from behind and holding him with his arms at his sides. Then, Blackmon came out and a struggle ensued. Carter, standing approximately three feet in front of Sandoval, heard a shot and soon realized that he had been hit by a bullet.
Bryant testified that he saw Sandoval and his companion, “both of them had hoodies on and was like, ‘What’s up now. What’s up now.’” Based on his experiences, Bryant believed that Sandoval could only have returned to fight or to shoot, and from Sandoval’s movements he believed Sandoval had returned for the latter purpose. Bryant “rushed to them and grabbed him [Sandoval].” Bryant explained, “I figured I was going to be stronger than him so I grabbed his wrist and just put him in a hug and I wasn’t going to let him go, and I wasn’t trying to lose my life over a little argument and so I just had to improvise.” He made sure that he had his arms around Sandoval’s elbows “so he c[ould]n’t bring the gun up to shoot anybody.” “I made sure his arm was down, ” he explained. Bryant said, “I put him in a bear hug, and I was at an angle, so my left leg was behind him and my right leg was towards the front of him, and all I heard was one shot, and then I just kept on holding him and that’s when Damon [Blackmon] came outside.” Blackmon also grabbed Sandoval, and Bryant pushed them both to the side so that he could run for the door. Bryant hid until he heard Sandoval and the other man leave, and later realized that he had been shot.
As Arlin called 911, she saw Sandoval head toward the bar doors with the gun “at his side next to his leg in his hand still.” Sandoval moved at a trot toward the door, and as Arlin watched, he turned and called, “Come on, ” at another person. At this point Arlin realized that Sandoval had a companion-a shorter, stockier person also holding a gun. The men entered a vehicle that was waiting in the parking lot with its door open and engine running, a driver waiting in the front seat.
Bryant identified Sandoval from a photographic lineup and at trial. Carter identified Sandoval from a photographic lineup and in court at trial. Arlin did not identify Sandoval from a photographic lineup but identified him at the preliminary hearing and at trial.
Sandoval was charged with attempted murder (§§ 187/664); two counts of assault with a firearm (§ 245, subd. (a)(2)); carrying a concealed firearm (§ 12025, subd. (a)(2)); unlawful possession of a firearm (§ 12021, subd. (e)); and second degree commercial burglary (§ 459). He was further alleged to have used a firearm in the attempted murder within the meaning of section 12022.53, subdivisions (b) and (c); to have used a firearm in the assaults and burglary within the meaning of section 12022.5, subdivision (a); and to have used a firearm in the burglary within the meaning of section 12022.53, subdivision (c). All the offenses were alleged to have been committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
Sandoval was acquitted of one count of assault with a firearm but otherwise was convicted as charged, with all special allegations found true. For the attempted murder, Sandoval was sentenced to life in prison plus 30 years, with a determinate term of 11 years 8 months for the remaining offenses and enhancements. Sandoval appeals.
DISCUSSION
I. Sufficiency of the Evidence for the Firearm Enhancement
Sandoval contends that the evidence was insufficient to support the firearm enhancement allegation under section 12022.53, subdivision (c), because there was no substantial evidence that he personally and intentionally discharged the firearm. Sandoval argues that there was no evidence that his finger was actually on the trigger of the gun he was holding, and that “the logical inference” was that the gun went off when Blackmon reached for the gun because Blackmon “inadvertently hit the trigger.” Even if Sandoval did fire the weapon, he argues, there was no evidence that he intended to fire the weapon and that it was more likely accidental. “When a jury’s verdict is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support it, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury.” (People v. Brown (1984) 150 Cal.App.3d 968, 970.)
Reviewing the evidence in the light most favorable to the judgment, there was substantial evidence to support the jury’s finding that Sandoval personally and intentionally discharged the firearm. Sandoval identified himself to the other persons in the bar as a “Long Beach CK, ” meaning “Long Beach Crip Killer, ” and his escalating conflict with at least one member of the Crips was the impetus for his original ejection from the bar. When he returned, he walked with purpose to the patio where the Crips were, drew a gun, and said, “I’m going to get you, nigger.” While there remains some variation in the accounts of what occurred next, there was evidence that Bryant attempted to restrain Sandoval by holding his arms down but that he did not have control of the weapon. Bryant testified that he held Sandoval’s arms down to prevent him from raising the weapon, the gun went off, and then Blackmon came out, jumped over him, and grabbed Sandoval. Carter testified that Blackmon arrived before the gunshot and was involved in the struggle. In either event, after the gun was fired, Sandoval left with his gun and with a gun-wielding companion, and he entered a car that was waiting in the parking lot with the engine running and the door open.
A reasonable jury could easily have concluded that Sandoval-who identified himself as a Crip Killer, became embroiled in a conflict with at least one member of a Crips gang, returned to the bar with firearm drawn, and made a verbal threat-personally and intentionally discharged the firearm during the struggle. It was reasonable for the jury to conclude that Sandoval retained some ability to move his hands because Bryant was attempting to hold his arms down at his sides rather than to wrest the gun from his hands; and it was also reasonable to conclude that Sandoval fired the gun, expecting or hoping that it would hit at least one of the men involved in the altercation. When the evidence reasonably justifies the jury’s finding, reversal is not warranted even if the record could have supported a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
II. Firearm Enhancement Attached to Burglary Count
The jury found true the firearm enhancements alleged in conjunction with the burglary count: personal use of a firearm (§ 12022.5) and personal and intentional discharge of a firearm (§ 12022.53, subd. (c).) Sandoval argues, and the People concede, that the latter enhancement provision may not be alleged with a charge of burglary. Section 12022.53, subdivision (a) enumerates the felonies to which the enhancement statute applies, and second degree commercial burglary, the specific charge here, is not one of the listed felonies. The true finding on the section 12022.53, subdivision (c) enhancement with respect to the burglary count must be stricken.
III. Gang Enhancement Issues
A. Attempted Murder Conviction
In conjunction with the attempted murder, the trial court imposed a 10-year criminal street gang enhancement term under section 186.22, subdivision (b)(1)(C). Sandoval argues, and the People agree, that the court erred in imposing this enhancement because attempted murder is punishable by life imprisonment. Section 186.22, subdivision (b)(5) provides that when the underlying felony is punishable by imprisonment in the state prison for life, the defendant must serve a minimum term of 15 years before being paroled. Additional terms of imprisonment under section 186.22, subdivision (b)(1) may not be imposed when subdivision (b)(5) applies, and the minimum term provision of subdivision (b)(5) applies instead. (People v. Lopez (2005) 34 Cal.4th 1002, 1004; People v. Johnson (2003) 109 Cal.App.4th 1230, 1236-1237, 1239.) With respect to the attempted murder count, the consecutive term of 10 years pursuant to section 186.22, subdivision (b)(1)(C) was improperly imposed and must be stricken. The judgment must be modified to remove the 10-year enhancement under section 186.22, subdivision (b)(1)(C) and to instead impose a 15-year minimum parole eligibility term for the attempted murder under section 186.22, subdivision (b)(5).
B. Carrying a Concealed Firearm, Unlawful Possession of a Firearm, Commercial Burglary
Based on the jury’s true findings on the gang enhancement allegations, the trial court imposed gang enhancements under section 186.22, subdivision (b)(1)(B) with respect to counts 4, 5, and 6: carrying a concealed firearm, unlawful possession of a firearm, and second degree commercial burglary. An enhancement under section 186.22, subdivision (b)(1)(B) may only be imposed for a serious felony committed for the benefit of a gang; if the felony is not serious or violent, a felony that is committed for the benefit of a gang falls under section 186.22, subdivision (b)(1)(A) and carries an enhanced term of two, three, or four years. (§ 186.22, subds. (b)(1)(A) & (B).)
Sandoval argues that the serious felony enhancements could not properly be imposed on counts 4, 5, and 6 because, standing alone, none of the offenses constitutes a serious felony-the offenses only become serious felonies when the gang enhancement is considered. (§ 1192.7, subd. (c)(28) [any felony offense that constitutes a felony violation of section 186.22 is a serious felony].) While it is proper to define any felony committed for the benefit of a gang as a serious felony, it is impermissible bootstrapping to use the same gang-related conduct again to impose an additional enhancement under section 186.22, subdivision (b)(1)(B). (People v. Briceno (2004) 34 Cal.4th 451, 465 (Briceno).)
Therefore, the People and Sandoval agree, as do we, that because counts 4 and 5 only became serious felonies because of the finding that they were committed for the benefit of a criminal street gang (§ 1192.7, subd. (c)(28)), it was improper to use the same conduct to enhance Sandoval’s sentence under section 186.22, subdivision (b)(1)(B) on these counts. (Briceno, supra, 34 Cal.4th at p. 465.) Instead, the trial court should have imposed sentence enhancements under section 186.22, subdivision (b)(1)(A). The matter must be remanded for resentencing under that provision.
Sandoval is not correct, however, in his contention that the serious felony enhancement under section 186.22, subdivision (b)(1)(B) could not properly be imposed with respect to count 6, the second degree commercial burglary. There, the jury found true the allegation that Sandoval personally used a firearm in the commission of the burglary. This burglary, therefore, is a serious felony due to the personal firearm use under section 1192.7, subdivision (c)(8). This independent ground for finding the burglary to be a serious felony eliminates the dual use problem identified in Briceno, supra, 34 Cal.4th at p. 465, and application of this enhancement was therefore proper.
IV. Section 654
A. Count 5
Section 654 bars punishment under multiple statutory provisions when a defendant engages in an indivisible course of conduct involving a single criminal objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) “The question whether the defendant entertained multiple criminal objectives is one of fact for the trial court, and its findings on this question will be upheld on appeal if there is any substantial evidence to support them.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) Here, there is no substantial evidence to support the trial court’s implicit finding that the crimes of carrying a concealed weapon and unlawful possession of a firearm were predominantly independent, with different objectives.
Sandoval was convicted of carrying a concealed firearm (count 4) and unlawful possession of a firearm (count 5) based on Sandoval’s conduct in carrying a concealed firearm into the bar. As the People and Sandoval both note, these two offenses took place at the same time and place, with the same firearm, and were committed during an indivisible course of conduct with a single objective. We have reviewed the entire record and find no evidence to support a factual conclusion that the two offenses were in any respect divisible or motivated by multiple objectives. Accordingly, Sandoval could not be punished for both offenses. (See In re Joseph G. (1995) 32 Cal.App.4th 1735, 1743-1744 [under section 654, a defendant may not be punished for three firearm offenses based on the same act of carrying a loaded firearm].) The sentence on count 5 must be stayed pursuant to section 654.
We recognize that our decision that the sentence on count 5 must be stayed pursuant to section 654 will have the effect of staying the gang enhancement imposed on remand under section 186.22, subdivision (b)(1)(A). (People v. Guilford (1984) 151 Cal.App.3d 406, 411.)
B. Count 6
The basis for Sandoval’s burglary conviction in count 6 was that he entered the bar with the intent to commit felonies-the attempted premeditated murder (count 1) and the assault (count 2). We agree with Sandoval and the People that because Sandoval’s purpose to commit the attempted murder and/or assault was the requisite felonious act for burglary, the sentence on count 6 should be stayed. When a “burglarious entry” is perpetrated with the intent to commit a felony assault and the crimes were committed pursuant to a single intent and objective, section 654 prohibits punishment for both offenses. (People v. Hester (2000) 22 Cal.4th 290, 294.)
No substantial evidence supports the trial court’s implicit finding that the burglary and the attempted murder/assault were separate offenses. The record contained abundant evidence that Sandoval returned to the bar with the intent to kill. He had become involved in an inter-gang conflict during his first visit, and he returned, armed and with a companion, to the bar, where he sought out the patrons he had interacted with earlier. He drew his firearm and made a racial threat connected to the parties’ respective gang affiliations. Further, Sandoval left in a car that had been idling in the parking lot with the door open. There was no evidence that Sandoval entered the bar with any felonious purpose other than to commit the attempted murder-no evidence, for instance, of an intent to commit, or the attempted commission of, larceny.
According to the gang expert who testified, Sandoval’s gang, the West Side Longos, is a Hispanic gang that would not “get along” with the predominantly Black Crips because of racial differences; its members would consider Black people to be enemies. Bryant, Blackmon, and Carter are Black.
The prosecutor also proceeded on a theory of burglary based on the intent to kill. As the prosecutor explained in argument, “All these crimes occurred the minute the people entered the bar armed with a... handgun, loaded, with the intention to kill; that’s when the crimes happened.”
Because the evidence and argument permit no conclusion that Sandoval entertained an independent felonious purpose in entering the bar beyond the intent to kill, the sentence on count 6 and its associated enhancements should be stayed.
V. Court Security Fees
The People ask us to direct the trial court to impose separate court security fees for each criminal conviction at resentencing, rather than imposing one fee for all offenses together. Section 1465.8, subdivision (a)(1) provides that a court security fee “shall be imposed on every conviction for a criminal offense, ” and this has been understood as attaching the fine to each criminal conviction, even if stayed, rather than to each criminal prosecution or case as a whole. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327-1328.) To assist the court on remand, we remind the court of the provisions of section 1465.8.
DISPOSITION
On count 6, the true finding on the section 12022.53, subdivision (c) enhancement must be stricken. On count 1, the 10-year enhancement under section 186.22, subdivision (b)(1)(C) is vacated and is replaced by a 15-year minimum parole eligibility term for the attempted murder under section 186.22, subdivision (b)(5). The execution of sentence on counts 5 and 6 is stayed pursuant to Penal Code section 654. The criminal street gang enhancements under Penal Code section 186.22, subdivision (b)(1)(B) are stricken on counts 4 and 5 and the matter is remanded for resentencing on those counts pursuant to Penal Code section 186.22, subdivision (b)(1)(A). In all other respects, the judgment is affirmed.
We concur: WOODS, Acting P. J.JACKSON, J.