Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA293281 Kathleen Kennedy-Powell, Judge. Affirmed as modified.
Edward H. Schulman, 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, Assistant Attorney General, Roberta L. Davis and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Larry Darnell Shields, appeals the judgment entered following his conviction, by jury trial, for first degree murder and attempted premeditated murder, with firearm and gang enhancements (Pen. Code, §§ 187, 664/187, 12022.53, 186.22). Shields was sentenced to state prison for a term of 70 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed as modified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
Defendant Shields was a member of the Rolling 60’s Crips gang. On July 19, 2005, Shields was at the home of his girlfriend, Jamel Byrdsong. Rhonda Bunkley lived next door to Byrdsong. Bunkley’s son, Ronnel Spears, was a member of the Limewood Blood gang. Spears got into an argument with his mother, during which he went outside and loudly said the word “Blood.” Shields came outside and reminded Spears he was in Crips territory. Shields then shot at Spears, missed, and hit bystander Lois Cole in the head, killing her.
2. Defense evidence.
Sylvana Weatherspoon, Byrdsong’s goddaughter, testified that on the day of the shooting she was picked up by Byrdsong and someone Weatherspoon believed was Byrdsong’s boyfriend. However, this man was not Shields. They drove to Byrdsong’s home so Weatherspoon could do some babysitting for her. Upon arriving, Weatherspoon heard someone say “Blood,” and Byrdsong’s friend got out of the car and shot at that person. Weatherspoon did not recall having told police she was asleep at Byrdsong’s home just before the shooting, woke up to the sound of yelling, and did not see the actual shooting.
3. Rebuttal evidence.
A recording of Weatherspoon’s police interview was played for the jury.
CONTENTIONS
1. There was insufficient evidence to support the gang enhancements.
2. The firearm enhancement must be stricken because it violated double jeopardy and multiple punishment principles.
3. The trial court imposed an unauthorized sentence on count 2.
DISCUSSION
1. There was insufficient evidence to sustain the gang enhancements.
Shields contends the gang enhancements must be stricken because they were not supported by sufficient evidence. The Attorney General properly concedes this claim has merit.
As we have explained: “Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group’s primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.] [¶] A ‘pattern of criminal gang activity’ is defined as gang members’ individual or collective ‘commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more’ enumerated ‘predicate offenses’ during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.] The charged crime may serve as a predicate offense [citations], as can ‘evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member.’ [Citation.]” (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.)
“Crimes occurring after the charged offense cannot serve as predicate offenses to prove a pattern of criminal gang activity.” (People v. Duran, supra, 97 Cal.App.4th at p. 1458; accord People v. Godinez (1993) 17 Cal.App.4th 1363, 1369, disapproved on another ground in People v. Russo (2001) 25 Cal.4th 1124, 1134 [“Use of acts occurring after a defendant’s commission of charged offenses to establish the existence of a ‘pattern of criminal gang activity’ within the meaning of section 186.22, subdivision (c) deprives the defendant of notice, in advance of his conduct, that his acts will fall within the proscription of section 186.22. Due process entitles a defendant to notice, before he acts, of the criminality and consequences of his conduct”].)
Here, the only evidence of the predicate crimes, other than the charged offenses against Shields, were crimes committed by two fellow gang members in April 2007, almost two years after the charged offenses. As the Attorney General properly concedes, this was not sufficient to sustain the gang enhancements. We will order the enhancements stricken.
Although Shields was on trial for two crimes, they counted as only a single predicate offense because they were committed on the same occasion by a single person.
2. Firearm enhancement was properly imposed.
Shields contends the trial court improperly imposed a sentence enhancement under section 12022.53, subdivision (d) (personally discharging a firearm causing death), because it violated double jeopardy and the proscription against being convicted for both a greater and a lesser included offense. This claim is meritless.
Shields argues the enhancement was improper “because the factual element essential to establishing [it]... is necessarily subsumed within the elemental components of the murder – the proximately caused death of the victim.” Shields acknowledges this argument has been rejected by our Supreme Court in People v. Izaguirre (2007) 42 Cal.4th 126, and People v. Sloan (2007) 42 Cal.4th 110, but he asserts those cases were wrongly decided. However, we are of course bound by California Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455)
3. Count 2 sentence was improper.
Shields contends the trial court erred when it imposed a concurrent sentence on the count 2 attempted premeditated murder conviction, but a consecutive sentence on the firearm use enhancement attached to that conviction. As the Attorney General properly concedes, this claim is meritorious.
The trial court imposed a 50-years-to-life sentence on count 1, and then ordered the sentence on count 2 to run concurrently to the sentence on count 1. However, believing it had no choice in the matter, the trial court also imposed a consecutive 20-year sentence for the section 12022.53, subdivision (d), firearm use enhancement finding attached to the count 2 conviction. This was improper because “one cannot be punished for the enhancement separately from the underlying offense.” (People v. Smith (1985) 163 Cal.App.3d 908, 914.) In People v. Mustafaa (1994) 22 Cal.App.4th 1305, the trial court imposed consecutive terms for firearm use enhancements on two counts while imposing concurrent terms for the underlying convictions in those counts. “The procedure for sentencing a person convicted of two or more felonies does not contemplate imposing an enhancement separately from the underlying crime.” (Id. at p. 1310.) “The personal gun-use enhancements to which [Mustafaa] admitted were not separate crimes and cannot stand alone. Each one is dependent upon and necessarily attached to its underlying felony. In separating the felony and its attendant enhancement by imposing a concurrent term for the felony conviction and a consecutive term for the enhancement the court fashioned Mustafaa’s sentence in an unauthorized manner under the sentencing procedure.” (Id. at p. 1311.)
We agree with the Attorney General that, because the trial court imposed the firearm use enhancement consecutively only because it believed it had to, there is no need to remand the case for resentencing. We will order the count 2 enhancement to run concurrently instead of consecutively.
DISPOSITION
The convictions are affirmed. The sentence is modified as follows: the criminal street gang enhancement findings (§ 186.22, subd. (b)) are stricken; the firearm use enhancement (§ 12022.53, subd. (d)) attached to count 2 shall run concurrently to the sentence imposed on count 1. The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment.
We concur: KITCHING, J., ALDRICH, J.