Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. Super. Ct. No. 07CM3449
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Joshua Andrew Soto was convicted of various offenses connected to an attack he and his companions committed on a 15-year-old male victim (V.) in an alley late at night. On appeal, defendant contends (1) insufficient evidence supported the conspiracy to commit robbery conviction; (2) insufficient evidence supported the attempted robbery conviction; (3) insufficient evidence supported the gang allegation findings; (4) the trial court erred in denying defendant’s motion for a new trial; (5) defense counsel provided ineffective assistance by failing to challenge the identifications of defendant, by failing to introduce photographs of defendant’s tattoos, and by failing to present expert testimony to challenge the reliability of eyewitness identifications; (6) the trial court erred by instructing on flight; (7) the gang enhancement connected to the conspiracy to commit robbery conviction was unauthorized; (9) the firearm use enhancement connected to the conspiracy to commit robbery conviction was unauthorized; and (10) the terms imposed on three of the counts should have been stayed. We will vacate the sentence and remand for resentencing with instructions. In all other respects, we will affirm the judgment.
PROCEDURAL HISTORY
On January 4, 2008, the Kings County District Attorney charged defendant with conspiracy to commit robbery (Pen. Code, §§ 182, subd. (a), 211; count 1), attempted robbery (§§ 664, 211; count 2), assault with a firearm (§ 245, subd. (a)(2); count 3), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 6), resisting a peace officer (§ 148, subd. (a)(1); count 4), and misdemeanor hit and run (Veh. Code, § 20002, subd. (a); count 5). Counts 1, 2, 3 and 6 arose from an incident on August 13, 2007, and counts 4 and 5 arose from an incident on August 20, 2007. The information also included various special allegations.
All statutory references are to the Penal Code unless otherwise noted.
A jury found defendant guilty on all counts. On the allegations, the jury found true as to counts 1 and 2 that a principal personally used a firearm (§ 12022.53, subds. (b)-(e)(1)); as to counts 1, 2, 3 and 6, that a principal was personally armed with a firearm (§ 12022, subd. (d)); as to count 6, that defendant personally inflicted great bodily injury (§ 12022.7); and as to counts 1, 2, 3, 4 and 6, that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)).
The trial court sentenced defendant to an aggregate term of 29 years in prison, as follows:
On count 1, the court imposed a five-year term, plus a 10-year firearm use enhancement (§ 12022.53, subd. (b)), a two-year arming enhancement (§ 12022, subd. (d)), a 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)), and two one-year prison term enhancements (§ 667.5, subd. (b)). The court stayed execution of the 10-year firearm use enhancement. The result was a 19-year sentence on count 1.
On count 2, the court imposed an 18-month sentence, plus a 10-year firearm use enhancement (§ 12022.53, subd. (b)), a two-year arming enhancement (§ 12022, subd. (d)), a 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)), and two one-year prison term enhancements (§ 667.5, subd. (b)). The court stayed execution of the entire sentence on count 2.
On count 3, the court imposed a one-year term, plus an eight-month arming enhancement (§ 12022, subd. (d)), a one-year-eight-month gang enhancement (§ 186.22, subd. (b)(1)(B)), and two one-year prison term enhancements (§ 667.5, subd. (b)), for a total consecutive term of three years four months.
On count 6, the court imposed a one-year term, plus an eight-month arming enhancement (§ 12022, subd. (d)), a one-year great bodily injury enhancement (§ 12022.7), a three-year-four-month gang enhancement (§ 186.22, subd. (b)(1)C)), and two one-year prison term enhancements (§ 667.5, subd. (b)), for a total consecutive term of six years.
On counts 4 and 5, the court imposed a consecutive eight-month term and a concurrent 180-day term, respectively.
On August 18, 2008, defendant filed an unsuccessful motion for a new trial on the grounds of ineffective assistance of counsel and newly discovered evidence.
FACTS
Fifteen-year-old V. often sneaked out of the house at night to be with his friends. On August 13, 2007, at about midnight, he left to meet two friends. He was wearing a black T-shirt, a black sweater, and red basketball shorts. The three friends smoked some marijuana (V. smoked one joint), then walked to the park. At about 1:30 a.m., V. left his friends at the park and started walking home. As a shortcut, he turned into an alley. He routinely walked through the alley during the day, but this was the first time he had been there at night. It was a dark night and there were no lights in the alley. He saw a group of more than four people standing around. V. just wanted to walk through, but a white car pulled up. V. could not identify the car’s model, although it looked like it had four doors. Defendant, who was the driver, and some other males got out of the white car. The lights in the car turned on when the occupants got out. V. tried to keep walking, but defendant approached him, coming within three or four feet of him. The car lights were still on and V. got a clear view of defendant’s facial features. Defendant was taller than V., with dark hair and a beard. He was Hispanic, but light-skinned. On cross-examination, V. testified that he did not remember any tattoos on defendant because he looked only at defendant’s face.
On cross-examination, V. testified that when he told the defense investigator that he had been drinking and smoking several joints of marijuana, he was referring to that day. He only smoked one joint that night.
Defendant asked V. where he was from and what gang he claimed. V., who associated with the Norteno gang, responded that he only talked to Nortenos, but he did not say he was a gang member. Someone in the group pushed V. and then someone (not defendant) hit his face with a beer bottle. V. heard the bottle crack. The same person who hit him with the bottle pointed a silver pistol at him and told him to “get the fuck on the ground.” V. fell to the ground. Defendant pinned him down while someone hit his face a second time with the beer bottle. Defendant and his companions pulled off V.’s shorts and shirt. V. thought they were looking for something because they were going through his pockets. When they were done, they ripped up his shorts. While engaged in these activities, the members of defendant’s group were not talking to each other, yet they all engaged in similar activities. V. stayed on the ground until someone in the group told him to leave. He went to the home of his friend, C., because he did not want to panic his mother. C. and another friend took V. to the hospital.
On cross-examination, V. said a lot of his friends were Nortenos. V. did not consider himself a gang associate, he just talked to gang members. V. primarily wore red, the color of Nortenos. He did not hang out with Surenos, whose color was blue.
One of V.’s friends went to V.’s house and banged on the door. The friend told V.’s mother that V. had been “jumped” while he was walking home and he was at the hospital. V.’s mother believed that V. was involved with gangs because his friends wore red, although V. did not wear red frequently. V.’s mother and father raced to the hospital. When they arrived, they found V. wearing only his boxer shorts and part of his shirt. He had blood all over his swollen face. His wounds required many stitches.
When V. and his parents left the hospital in the morning, V.’s mother asked him what had happened. V. told her several males had jumped him in the alley behind the park and ripped off his shorts. V. and his parents drove through the alley so V. could show them the location. They saw blood splatters, a broken beer bottle, and V.’s red shorts in the bushes.
When they got home, V.’s mother called the police. Officer Duvall was dispatched In response. V. described defendant, who was the driver of the white car, as a Hispanic in his mid-20’s, wearing a white tank top, a red item, jeans, and a dark blue or black hat on the side of his head. A passenger in the white car was also Hispanic and in his mid-20’s. V. described the car as a long white vehicle.
V.’s testimony was interrupted: “With a white tank top and a red—”
The officer investigated the alley during the daylight, within six to eight hours of the attack. He knew the area was frequented by gang members. In the bushes, the officer found and collected a pair of torn red shorts with pockets. The officer also saw and collected broken glass and a broken beer bottle. The evidence observed by the officer was consistent with the story V. had told him.
On cross-examination, the officer testified that no fingerprints or blood stain evidence was collected from the alley, and no handgun was ever recovered.
The officer testified that defendant testified to nothing substantially different from what he had told the officer in the past, other than the fact he had consumed alcohol on the day of the attack.
In the days following the attack, V. stayed at home because he was afraid to go out. On the morning of August 17, 2007, four days after the attack, when he finally left the house to go to the store for something to eat, he saw the same white car drive by. It came within about 10 feet of him and was headed for the highway. Defendant was driving and there were two other people in the car. V. kept his gaze on defendant, who was wearing a red hat in the same manner he had worn the dark blue or black hat on the night of the attack. When V. got home, he ran into the house and told his mother he had seen the same white car. He said the driver looked exactly like the male who had attacked him and he also thought one of the two passengers looked familiar from that night.
V.’s mother called V.’s father, who had just left the house and was on his way to work. She asked him if he had seen a white car. She told him the males in the car were the ones who had attacked V. V.’s father spotted a white car ahead of him on the highway and he approached it. It was a white Thunderbird with three male occupants. V’s father described the three males and V. confirmed it was the same car. V.’s father read the license plate and V.’s mother called the police. A be-on-the-lookout call was issued for the white car.
Three days later, on August 20, 2007, Officer Higgins and Corporal Pescatore were on duty in a marked patrol vehicle. At about 11:55 p.m., they noticed an older white Ford Thunderbird that matched the description of the white car. They followed it and confirmed its license plate number. The white car sped up and made an abrupt turn. The officers, following at a distance of about 25 feet, activated their overhead lights and siren, and attempted to pull the white car over. The car proceeded into a cul-de-sac, drove into a driveway at about 20 miles per hour, and collided with the garage area of the house.
Defendant got out of the white car and ran. The officers got a good look at him. The officers, who were in uniform, identified themselves as police officers and pursued defendant on foot until they lost sight of him. After backup officers arrived and set up a perimeter, a police dog located defendant behind a hole in a fence. Defendant was arrested. On cross-examination, Corporal Pescatore testified that defendant was sleeveless when he was arrested, but the corporal did not remember whether defendant had any tattoos.
The officers searched the white car and found four backpacks, a red San Francisco 49ers cap, a 49ers pocket knife, some tools (including a crowbar), a red bandana, a book called “Secrets of War,” a black package, and a lot of clothing. The red bandana, found in the driver’s door console, was considered a piece of Norteno gang indicia. The Secrets of War book was a photo album. Defendant’s name was inside the front cover and on the back cover. Some of the photographs included defendant and members of the Brown Pride Norteno (BPN) gang, wearing red and flashing gang signs. Gang monikers were written on some of the photographs to identify the subjects.
On August 25, 2007, five days after defendant’s arrest, Officer Obarr showed V. a photographic lineup of six males, including defendant and five people with similar characteristics. The officer did not tell V. anything about the photographs or why they were included, and he did not tell V. that defendant had been stopped in a white Thunderbird with a particular license plate number. The officer admonished V. that the person who attacked him was not necessarily in the lineup. V. pointed to the photograph of defendant almost immediately and without hesitation. V. circled defendant’s picture and wrote on the lineup that he was the person who wore a white tank top, questioned him, and pinned him down. V. did not know whether defendant was a gang member.
On cross-examination, Officer Obarr said he believed V.’s mother was present when V. made the photographic identification.
At trial, V. identified a white car in a photograph as the car driven by defendant in the alley and again several days later. The car in the photograph looked exactly like the one V. saw.
Gang Evidence
According to law enforcement, defendant was a member of the BPN gang. This conclusion was based on defendant’s admissions to a probation officer and a correctional counselor, the gang paraphernalia found in the white car, and a gang-related attack in prison.
A gang expert testified that there were over 40 BPN members. They were affiliated with the number 14, the color red, and the San Francisco 49ers logo (they took S.F. to mean scrap-free; “scrap” was a derogatory term for a rival Sureno gang member). The expert described the gang-related crimes committed by particular BPN members, explaining that the primary activities of the BPN gang were murder, robbery, assault with deadly weapons, burglary, vandalism, and possession of deadly weapons.
According to the gang expert, the expressions “Where are you from?” and “What do you claim?” were used in the gang culture to determine a person’s gang affiliation and to potentially start a confrontation. The gang expert explained that gangs would not accept non-gang members wearing their color. Someone who wore the gang color, but said he was not a gang member would be shot, stabbed, or jumped. Someone who was not willing to be a gang member would be punished for wearing the gang color. Similarly, a gang would punish a person for wearing a rival’s color and not claiming the rival gang. The gangs relied on fear, power, and respect.
The gang expert said it was not acceptable in the gang community for gang members or associates to cooperate with law enforcement or testify in court. Those people were considered “rats” that had to be stopped. Someone who testified in court would not be allowed to join the gang and he or his family could be victimized by the gang. Further, gang members were not supposed to give up to law enforcement. They were expected to do everything they could to avoid detection and arrest. It was more advantageous for gang members to be out of custody so they could do productive gang work. The Norteno gang operated on the streets and considered time spent in prison “dead time.” The ultimate goal was to keep gang members on the streets where they could make money for the gang. Escaping police apprehension also enhanced a gang member’s reputation in the gang. In these ways, fleeing from the police benefitted the gang.
In the gang expert’s opinion, there was overwhelming evidence that defendant was a member of the BPN gang. He had admitted being “jumped in” in 1997 and having the moniker “Scrappy.” He possessed gang paraphernalia, such as a red bandana, San Francisco 49ers items, a book of gang photographs, and a letter written by a gang member. The expert also concluded the attack in this case was committed for the benefit of the gang. It was a typical response to a non-gang member’s wearing the gang color. It was intended to instill fear and show the gang’s power.
Defense Evidence
Defense Investigator Morales testified that when he interviewed V. about six months after the attack, V. said he had been drinking at a party on the day of the attack and he was under the influence of alcohol when he came home. V. also said he smoked two “blunts” of marijuana just before going out that night. V. told the investigator he could not remember anything about the attack and he could not remember who had done it. He said he had identified defendant from the photographic lineup because his father told him that was the person involved. V. said he had seen a similar white car, but he could not identify anyone in the vehicle because he could not remember them.
On cross-examination, the investigator admitted V. had in fact described the attack to him in detail (although V. did not tell him who had committed it), and the investigator’s report did contain the details related by V. The investigator did not know what he had put in his report because he had not read it and could not remember what was in it.
The investigator admitted he had never spoken to V.’s father and his report failed to mention that V. said he had identified defendant only because of his father. The investigator had not spoke to V.’s father and did not know what he had seen.
The investigator said he made it clear when he went to V.’s house that he was a defense investigator. V.’s mother was present during V.’s interview. The investigator did not separate V. from his mother because the mother wanted to be present and V. was a minor. The investigator had the photographic lineup with him, but he did not show it to V. The investigator never really paid attention to the lineup.
The investigator admitted he had stopped by V.’s house the night before this testimony. He saw V. hanging out with some people and wanted to say hi to him.
On redirect examination, the investigator testified that when he initially went to V.’s house, he identified himself as a private investigator and asked for V.’s mother. He gave her his business card to identify himself as a defense investigator. V.’s mother welcomed him, was willing to speak to him, and answered most of the questions during the interview.
Rebuttal
On rebuttal, V.’s mother testified that when the police officer showed V. the photographic lineup, she and V.’s father stayed in the other room. They did not see the lineup before it was shown to V. and they did not have any conversation with V. about which person he should identify.
V.’s mother testified that when the defense investigator came to her house, he gave her the impression he was with law enforcement. Only when he left and handed her a business card did she realize he was not. During the investigator’s interview, V.’s mother did not insist on staying in the room. In fact, she asked if the investigator needed her to step out and he told her to stay. The police officers who had already questioned V. had asked her to step out and she had no problems with that. V. was able to explain to the defense investigator what had happened and he told him details regarding the attack. Both V. and V.’s mother responded to the investigator because he was speaking to both of them.
DISCUSSION
I. Sufficiency of the Evidence—Robbery Crimes
Defendant contends the evidence was insufficient to support the convictions for conspiracy to commit robbery (count 1) and attempted robbery (count 2) because the prosecution failed to establish the specific intent to agree to commit a robbery and the specific intent to commit a robbery. He argues that the evidence suggested the perpetrators intended to attack V., humiliate him, or look for a weapon or gang indicia, but not rob him. We disagree.
“‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or reconsider factual conflicts, as these are functions reserved for the trier of fact. We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Although we review the whole record, “[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296; People v. Panah (2005) 35 Cal.4th 395, 489.) Furthermore, “‘“‘[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’” [Citations.]’ [Citation.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury’s findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.; People v. Panah, supra, at p. 488.)
A. Conspiracy to Commit Robbery
“A conspiracy is an agreement between two or more people to commit a public offense. [Citation.] A conviction for such requires proof of: (1) an agreement; (2) the specific intent to conspire; (3) the specific intent to commit the offense; and (4) an overt act towards achievement of that goal. [Citation.] These elements are sufficiently met by circumstantial evidence, particularly when those circumstances are the defendant’s carrying out the agreed-upon crime. [Citation.]” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1464.) “‘They may … “‘be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.’”’ [Citation.]” (People v. Bogan (2007) 152 Cal.App.4th 1070, 1074.) “The overt acts charged as part of the conspiracy can be circumstantial evidence of its existence. ‘“Such acts may establish the purpose and intent of the conspiracy and relate back to the agreement whose purpose may be otherwise enshrouded in the hush-hush admonitions of the conspirators.”’” (People v. Herrera, supra, at p. 1464.) Although several overt acts may be alleged as part of the conspiracy, the prosecution is required to prove only one. (People v. Alleyne (2000) 82 Cal.App.4th 1256, 1260.)
Criminal conspiracy is an inchoate crime distinct from, and not requiring, the actual commission of the substantive criminal offense that is the object of the conspiracy. (People v. Morante (1999) 20 Cal.4th 403, 416.) A defendant may be convicted of conspiracy even though the substantive offense was committed without his participation. (People v. Lee (2006) 136 Cal.App.4th 522, 529-530.) “‘“As an inchoate crime, conspiracy fixes the point of legal intervention at [the time of] agreement to commit a crime.”’” (People v. Morante, supra, at p. 417.) The jury need not unanimously agree on which overt acts were committed. (People v. Lopez (1993) 20 Cal.App.4th 897, 904.) As long as the jury unanimously concludes that a conspirator committed some overt act in furtherance of the conspiracy, it need not agree as to who the coconspirators were, who did an overt act, or exactly what the act was. (People v. Prieto (2003) 30 Cal.4th 226, 251.)
“‘The theory behind th[e] principles [of conspiracy law] is that collaborative criminal activities pose a greater potential threat to the public than individual acts. “Criminal liability for conspiracy, separate from and in addition to that imposed for the substantive offense which the conspirators agree to commit, has been justified by a ‘group danger’ rationale. The division of labor inherent in group association is seen to encourage the selection of more elaborate and ambitious goals and to increase the likelihood that the scheme will be successful. Moreover, the moral support of the group is seen as strengthening the perseverance of each member of the conspiracy, thereby acting to discourage any reevaluation of the decision to commit the offense which a single offender might undertake.”’” (People v. Alleyne, supra, 82 Cal.App.4th at pp. 1261-1262.)
“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.” (§ 211.) Conspiracy to commit robbery requires that two or more people conspire to commit robbery and at least one person performs an overt act in furtherance of the conspiracy. (§§ 182, subds. (a)(1), (b); 184; People v. Swain (1996) 12 Cal.4th 593, 600; People v. Hall (1998) 67 Cal.App.4th 128, 140.) Conspiracy to commit robbery is a specific intent crime that requires the intent to conspire and the intent to commit the robbery. (See People v. Swain, supra, at p. 600.)
Defendant challenges the sufficiency of the evidence to support these two intents. He argues “[i]t is rank speculation that [V.’s] perception that someone in the group was looking for non-existent pockets suggested not only a pre-existing agreement among this group to rob him, but also, evidence of intent to rob him at all. This is not the case where there were advanced discussions about a need to obtain money or property, or looking for victims to rob.”
It is not, however, rank speculation for a jury to make a finding based on substantial evidence, even if the evidence is contradicted. The officer who collected the red shorts said they had pockets. And, although V. said he did not have any pockets, he repeatedly said the group went through his pockets. He thought they were looking for something. The circumstances of the attack provided more than sufficient evidence of an agreement among defendant and his companions to rob V. Their silent and coordinated activity suggested an agreement to use force or fear to take whatever valuables V. had in his possession. If they had intended only to humiliate him, they could have done so without searching through his pockets. Contrary to defendant’s urging, a demand for money was not required; there is no hard and fast rule that a robbery must involve a demand for money or property. (People v. Ray (1996) 13 Cal.4th 313, 342; see also People v. Torres (1971) 19 Cal.App.3d 724, 727.) The evidence amply established both defendant’s intent to conspire to commit robbery and his intent to commit robbery.
B. Attempted Robbery
“An attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission.” (People v. Medina (2007) 41 Cal.4th 685, 694.) Defendant contends the same lack of evidence regarding the specific intent to rob, discussed above, defeats the attempted robbery conviction as well. For the reasons we have discussed, we also reject this argument.
II. Sufficiency of the Evidence—Gang Allegation
Defendant asserts that the evidence was insufficient to support the gang allegation under section 186.22, subdivision (b) because there was no evidence that defendant acted for the benefit of, at the direction of, or in association with a criminal street gang. We reject his three contentions in turn.
First, defendant says there was no evidence of a gang-related motive for the attack because V. claimed the same gang affiliation as defendant, and V. did not deny being a gang member. Defendant ignores the evidence that although V. told defendant he only talked to Nortenos, he did not tell him he was a gang member. Thus, he did not claim the gang. The gang expert testified that a person’s failure to claim the gang while wearing the gang color typically resulted in a punishing attack by gang members. Someone willing to wear the gang color had to be willing to claim the gang. The attack on V. was intended to instill fear and respect and to demonstrate the gang’s power.
Second, defendant argues the evidence did not establish that his companions were gang members. We agree with the People, however, that a jury could reasonably infer defendant was with fellow gang members when they approached and questioned V. about his gang affiliation in a dark alley in an area of high gang activity at 1:30 a.m., and then attacked him for failing to claim the gang.
Third, defendant maintains that the gang expert’s testimony that defendant ran from the police because he feared imprisonment was based on the faulty assumption that avoiding incarceration benefitted the gang. Defendant asserts that it would have been equally reasonable for the expert to have testified that incarceration benefitted the gang because some gangs, such as the Sureno gang, were prison-based. Again, we agree with the People that the jury was justified in believing the expert’s opinion that this particular gang was street-based and it benefitted from keeping its members on the streets where they could commit lucrative crimes and promote the reputation of the gang.
In sum, substantial evidence supported the conclusion that the attack on V. was committed for the benefit of, at the direction of, or in association with a gang. The evidence was sufficient to support the gang enhancements.
III. Motion for a New Trial
Defendant argues that the trial court erred in denying his motion for a new trial on the ground of newly discovered evidence. We disagree.
The motion raised ineffective assistance of counsel as a second ground.
On August 18, 2008, defendant filed a motion for a new trial, claiming he had discovered that C.’s testimony would impeach V. and defend against the gang allegations. At the hearing on the motion, C. testified that he was a Norteno gang member and he considered V. a Norteno gang member. C. knew V. because they hung out together on the streets. On the night of the attack, V., C., and C.’s cousin smoked marijuana and drank alcohol outside of V.’s apartment complex. When they got ready to part, V. told C. he was going to “go jacking,” or looking for something to steal, so he could get money to buy more marijuana.
After V. was attacked, C. saw V. and started walking him home. V. told C. he had been jumped by a few males who looked like “scraps,” or Sureno gang members. When C. saw a friend driving by, he waved him down to take V. to the hospital.
C. explained that Surenos tended to wear blue and they spoke distinctively.
C. testified that he met defendant when they were housed together in the county jail following defendant’s trial.
Defendant says C.’s testimony established that V. was not truthful, that he was more likely attacked by rival Surenos than by Nortenos, and that his assault might have been retaliation for his own attempt to steal.
Section 1181 provides in relevant part: “When a verdict has been rendered … against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] … [¶] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.” “In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘“1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.”’” (People v. Delgado (1993) 5 Cal.4th 312, 328, italics added.)
“Such a motion is generally looked upon with disfavor…. In determining whether there has been a proper exercise of discretion, each case must be judged on its own factual background…. In its consideration of the … factors [to be considered in ruling on the motion], the trial court may weigh the credibility of the new evidence in determining whether its introduction would render a different result on retrial reasonably probable.” (People v. Cole (1979) 94 Cal.App.3d 854, 859, 860, overruled on other grounds in In re Kelly (1983) 33 Cal.3d. 267, 277.) The weight and credibility to be given to the new evidence is for the trial court. (People v. Hill (1969) 70 Cal.2d 678, 699.) “‘The moving party must make a clear case, showing … the truth … of such evidence. Newly discovered evidence after defeat is looked upon with suspicion.’” (People v. Singh (1909) 11 Cal.App. 427, 429.) “‘The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’” (People v. Williams (1988) 45 Cal.3d 1268, 1318.)
In this case, the new evidence, if believed, tended to exonerate defendant because he was a Norteno, not a Sureno. Thus, the trial court, which denied the motion without explanation, apparently determined the evidence was not believable. Defendant claims C. had nothing to gain by providing a defense for defendant, but, as the prosecutor argued to the trial court, there were many reasons C.’s testimony was suspect. C. and defendant were fellow Norteno gang members and they had recently been cellmates in jail. V., on the other hand, did not claim to be a gang member. In fact, he had committed a disrespectful offense against the gang and the gang had punished him for it. And worse yet, he then testified against a gang member and sent him to prison. C.’s gang loyalty supported a motive, if not an obligation, to testify in defendant’s favor.
The prosecutor also noted V. had been portrayed at trial as someone who did drugs and hung around with gang members, so the impeachment value of the new evidence was minimal.
In People v. Wade (1971) 15 Cal.App.3d 16, the appellate court, reviewing the denial of a motion for a new trial, noted inconsistencies in the witness’s testimony and further noted that the witness was a friend of the defendant, had been his cellmate prior to trial, and had been convicted of three prior felonies and was awaiting trial for a fourth. (Id. at pp. 26-27.)
In People v. Peyton (1941) 47 Cal.App.2d 214, the appellate court noted, “the truthfulness of [defendant’s] alleged new evidence is open to grave suspicion…. It is a belated and suspicious confession coming from an incarcerated convict who admitted that he had nothing to lose thereby. [He] was a close friend of [defendant], having previously served a sentence with him in state prison, and he was imprisoned in the same cell … with … [defendant] just prior to the motion for new trial. The belated confession under such circumstances is evidence that it was not prompted by conscientious scruples to tell the truth and to save an innocent man from unjust punishment…. The [trial] court was warranted in disbelieving the affidavit of [the witness] under the circumstances of this case, and in denying the motion for new trial.” (Id. at pp. 223-224.)
Similarly, given the circumstances here, the trial court could reasonably conclude C.’s testimony that V. told him he had gone out to steal and had been attacked by Surenos was not credible and thus would not render a different result reasonably probable on retrial. The trial court acted well within its discretion in denying the motion for a new trial.
IV. Ineffective Assistance of Counsel
Defendant raises three claims of ineffective assistance of counsel. We reject two and decline to address the third.
To establish ineffective assistance of counsel, a defendant must show (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) There is “a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance’ [citations], and we accord great deference to counsel’s tactical decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in the ‘“perilous process”’ of second-guessing counsel’s trial strategy. [Citation.] Accordingly, a reviewing court will reverse a conviction on the ground of inadequate counsel ‘only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citations.]” (People v.Frye (1998) 18 Cal.4th 894, 979-980, fn. omitted.)
“In determining prejudice, we inquire whether there is a reasonable probability that, but for counsel’s deficiencies, the result would have been more favorable to the defendant. [Citations.]” (People v.Frye, supra, 18 Cal.4th at p. 979.) The reviewing court can adjudicate an ineffective assistance claim solely on the issue of prejudice without determining the reasonableness of counsel’s performance. (Strickland v. Washington, supra, 466 U.S. at p. 697; People v. Ledesma, supra, 43 Cal.3d at pp. 216-217; People v.Hester (2000) 22 Cal.4th 290, 296-297.)
A. Photographic Lineup Procedure
Defendant first contends defense counsel was ineffective for failing to challenge the photographic lineup procedure as impermissibly suggestive, and for failing to challenge V.’s in-court identification that resulted from it. Defendant points to the defense investigator’s testimony that V. told him he had identified defendant from the lineup because his father told him to.
Where a witness has been subjected to an impermissibly suggestive and unreliable identification procedure, an in-court identification of the defendant by the witness must also be excluded unless the prosecution shows by clear and convincing evidence that the in-court identification was based on the witness’s independent recollection of his observations at the time of the offense. (People v. Caruso (1968) 68 Cal.2d 183, 189-190.)
“In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.” (People v. Cunningham (2001) 25 Cal.4th 926, 989; People v. Kennedy (2005) 36 Cal.4th 595, 610.) “‘If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.’ [Citation.] In other words, ‘[i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends.’ [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 412.) “The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. [Citation.] ‘The question is whether anything caused defendant to “stand out” from others in a way that would suggest the witness should select him.’ [Citation.]” (People v. Cunningham, supra, at pp. 989-990.) “[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Simmons v. United States (1968) 390 U.S. 377, 384; see also People v. Cunningham, supra, at p. 990.)
In this case, Officer Obarr testified that he showed V. the photographic lineup about 12 days after the attack. The officer told V. nothing about defendant or the photographs, and he told V. the perpetrator was not necessarily in the lineup. V. immediately identified defendant without hesitation. V. circled defendant’s picture and wrote on the lineup what defendant had done. On cross-examination, the officer said he believed V.’s mother was present when he showed V. the lineup. But V’s mother testified that neither she nor V.’s father were present when the officer showed V. the lineup.
Defense Investigator Morales interviewed V. six months after the attack. The investigator testified that V. told him he had identified defendant from the lineup because his father told him that was the person who was involved. (This is the testimony on which defendant relies now.) V.’s mother testified that neither she nor V.’s father saw the lineup before V., and neither of them spoke to V. about the person he should identify. On cross-examination, the investigator admitted he had not noted in his report V.’s statement about his father’s involvement in his identification of defendant.
Based on the state of the record, we decline to address this claim, which is more appropriately reserved for a habeas corpus proceeding. Our ability to evaluate counsel’s purported deficiency is diminished when the record fails to reveal the “basis of counsel’s decision, and … that decision is not one for which there could be no satisfactory explanation.” (People v.Hart (1999) 20 Cal.4th 546, 589, fn. 8.) As the Supreme Court has repeatedly stressed,‘“[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] … unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citation.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.] ‘[The court] recommended in [People v. ]Pope [(1979) 23 Cal.3d 412] that, “[t]o promote judicial economy in direct appeals where the record contains no explanation, appellate counsel who wish to raise the issue of inadequate trial representation should join a verified petition for writ of habeas corpus.”’ [Citation.] Because claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding, the rules generally prohibiting raising an issue on habeas corpus that was, or could have been, raised on appeal [citations] would not bar an ineffective assistance claim on habeas corpus.” (People v.Tello (1997) 15 Cal.4th 264, 265-266.)
B. Photographs of Defendant’s Tattoos
Next, defendant argues defense counsel was ineffective for failing to present evidence of defendant’s extensive tattoos. Despite defendant’s claim that his tattoos “should have been readily visible” during the attack the evidence demonstrated otherwise. Although defendant was wearing a tank top at the time of the attack, V. did not notice his tattoos because he was looking only at defendant’s face. Similarly, when Corporal Pescatore and his partner stopped defendant several days later, the corporal got a good look at defendant, but did not remember whether he had any tattoos, even though he was wearing a sleeveless shirt. Introducing photographs of defendant’s tattoos at trial would not have altered the fact that neither V. nor Corporal Pescatore noticed or remembered the tattoos. Accordingly, it is not reasonably probable the result would have been more favorable to defendant had counsel introduced the photographs. Defendant was not prejudiced.
C. Eyewitness Identification Expert
Lastly, defendant maintains defense counsel was ineffective because he failed to present an eyewitness identification expert to challenge the reliability of V.’s identifications. Defendant notes that V.’s observation of the perpetrator the night of the attack was made in the dark under conditions of high stress. Furthermore, V.’s identification of defendant might have been based on his sighting of defendant in a white car a few days later. Moreover, V.’s in-court identification of defendant occurred nearly a year after the attack, when his memory might have faded.
Misidentification was the entire defense to the crimes committed during the attack. Defense counsel elicited evidence to attack V.’s identification of defendant, including that V. smoked marijuana and felt the effects of it, that the alley was unlit and the night was dark, that V.’s initial description of the perpetrator was minimal, that V. did not notice any tattoos on the perpetrator, and that V. based his identification of defendant on his later sighting of him in a white car. Then counsel argued vigorously that V.’s identification was incorrect, as follows:
“Now, let’s remember, in terms of reliability of eye witness [sic] identification, all the factors…. [¶] One of the first factors is we know he’s drinking and we know he’s been smoking dope. He’s under the influence. Perception, reality, that’s all altered. Whether any of us have ever done those kind of things or not, I don’t know. But I think it’s common sense that tells you if you’re drinking and you’re smoking dope, your perceptions of what’s going on around you aren’t necessarily terribly accurate. This is the middle of the night right, now. He’s walking down the street. He decides he’s going to take a shortcut. So he goes down a dark alley. [¶] … [¶] … So here we find [V.] walking through a neighborhood, a dark alley, 1:30, 2:00 in the morning, under the influence, in a high gang activity area. Now, does that justify him getting jumped and beat up, because we know that’s what happened at some point, he got jumped and beat up? Absolutely not…. But if we’re going to punish somebody for it, let’s make sure we have the right person. [¶] … [¶]
“We have got an individual that’s under the influence at 1:30 in the morning. It’s dark. Very dark. Things are happening suddenly. Things are happening quickly. You heard [V.’s] testimony on the stand. He even said things happened very quickly and he wasn’t sure. In fact, on the stand, if you recall, he said several times I don’t remember…. Upon prompting, [V.] was able to come up with some more details, but were those details that he directly remembered or were those details that he was being reminded of … what he said that night—what little he said that night. His memory wasn’t that good. His perception wasn’t that good. Remember, these things happened quickly, they happened in the middle of the night and he was under the influence. Inconsistencies. Uncertainties. Reasonable doubt.”
Counsel also argued that V.’s initial description of the perpetrator was basic and generic, and that his photographic identification of defendant was actually based on his sighting of defendant in a white car a few days after the attack, when he got a clear view of defendant. Counsel argued:
“Sometime between that [sighting] and the time of the lineup, it’s our contention that [V.] became convinced because of his clear sight of that person in that similar car that that was, in fact, the person he saw that night and is still convinced of that. Let’s remember, he wasn’t able to give much of a description of that person that night. Why not? Quite reasonably because of the conditions outside. Because of his condition. Remember, he said he even thought it could have been a four-door car that night. His perception wasn’t very good.”
We believe that, as defense counsel argued, the jury could readily apply common sense to the circumstances of this case. Jurors understand ordinary conditions like darkness, inebriation, and fear. This was not a case in which an expert was required to explain a phenomenon outside the realm of the jurors’ reality and common sense. “Although courts have not always used the same language, the decisive consideration in determining the [necessity] of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that [persons] of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert” is required. (People v. Cole (1956) 47 Cal.2d 99, 103.) Here, expert testimony was not required to assist the jury, and thus defense counsel was not deficient for not presenting an eyewitness identification expert.
Furthermore, even if we found deficient representation, we would find no prejudice. Despite the night’s conditions, recounted by counsel, V. testified that defendant came within three or four feet of him while he was illuminated by the car’s lights, spoke to him, and pinned him down. V. got a clear view of defendant’s facial features and his unequivocal identification of his photograph occurred 12 days after the attack. It is not reasonably probable that testimony from an expert would have resulted in a more favorable result for defendant.
V. Flight Instruction
Defendant argues that the trial court’s instruction on flight was error because his flight from the police occurred a week after the attack. This claim is without merit.
“Section 1127c requires a trial court in any criminal proceeding to instruct as to flight where evidence of flight is relied upon as tending to show guilt. CALJIC No. 2.52, which is derived from section 1127c, advises the jury ‘that evidence of flight alone is insufficient to establish guilt, but may be considered with other proven facts in deciding the question of guilt or innocence.’ [Citation.] Contrary to defendant’s position, the instruction neither requires knowledge on a defendant’s part that criminal charges have been filed, nor a defined temporal period within which the flight must be commenced, nor resistance upon arrest. [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1182 , fn. omitted; People v. Mason (1991) 52 Cal.3d 909, 941 [there are no inflexible rules about the required proximity between crime and flight; instead, facts of each case determine whether it is reasonable to infer that flight shows consciousness of guilt].) “‘“[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.”’ [Citations.]” (People v. Bradford, supra, 14 Cal.4th at p. 1055; People v. Smithey (1999) 20 Cal.4th 936, 982.)
Defendant is incorrect that the several-day delay between the attack and his flight from the police precluded a flight instruction. (See People v. Loker (2008) 44 Cal.4th 691, 706 [flight instruction proper where defendant was arrested four days after crimes in Arizona after high-speed chase; jury could reasonably find departure from California, as well as the chase in Arizona, constituted flight from California crimes]; People v. Carter, supra, 36 Cal.4th at p. 1182 [flight instruction proper where defendant left the state in the days following crimes and traveled to Arizona with murder victim’s car]; People v. Mason, supra, 52 Cal.3d at pp. 941-943 [flight instruction proper where defendant fled four weeks after murder; common sense suggests that guilty person does not lose desire to avoid apprehension for grave offenses after only a few days]; People v. Howard (2008) 42 Cal.4th 1000, 1020- 1021 [flight instruction proper where defendant had remained at home for two days after victim disappeared and only left his home after victim’s body was found]; People v. Jones (1991) 53 Cal.3d 1115, 1145 [flight instruction proper where defendant attempted to leave town unexpectedly within hours after the killings]; People v. Scott (1959) 176 Cal.App.2d 458, 506-507 [flight instruction proper where defendant knew he was under investigation for his wife’s murder and fled to Canada a year after her disappearance].) Instead, the relevant question is whether, given the totality of the circumstances, defendant’s conduct upon being followed and stopped by the officers on August 20, 2007 suggested a purpose to avoid being observed or arrested. It plainly did: upon seeing the marked police car, defendant continued driving until he was forced to stop, at which time he fled on foot as the officer chased him and then he hid from them. This evidence demonstrated a purpose to avoid being apprehended by police. The trial court did not err by instructing on flight.
VI. Conspiracy to Commit Robbery as a Violent Felony
Defendant contends the trial court erred in applying the criminal street gang enhancement statute in count 1. He argues the 10-year enhancement under section 186.22, subdivision (b)(1)(C) was unauthorized because conspiracy to commit a robbery is not a violent felony within the meaning of section 667.5, subdivision (c). We agree.
Section 186.22 sets forth the increased penalties for crimes involving criminal street gangs. Subdivision (b)(1) of that section states: “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 as follows:
“(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court’s discretion.
“(B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.
“(C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.” (§ 186.22, italics added.)
Under this statutory scheme, paragraphs (B) and (C) apply to serious and violent felonies, respectively, while paragraph (A) is the catchall provision for all crimes not falling under the other two paragraphs. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 328, fn. 4; People v. Hernandez (2003) 109 Cal.App.4th 1338, 1346.)
In this case, the court imposed the 10-year enhancement on count 1 under section 186.22, subdivision (b)(1)(C), which requires that the felony be a violent felony, as defined section 667.5, subdivision (c). The crime of conspiracy to commit robbery, however, is not one of the enumerated felonies listed in section 667.5, subdivision (c). Section 667.5, subdivision (c) states: “The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society’s condemnation for these extraordinary crimes of violence against the person.” “Similarly, legislative history indicates that ‘the legislative intent in enacting subdivision (c) of Section 667.5 … was to identify these “violent felonies” and to single them out for special consideration in several aspects of the sentencing process.’ [Citations.]” (In re Mitchell (2000) 81 Cal.App.4th 653, 656.) As the Mitchell court noted, “[s]ection 667.5, subdivision (c) does not list conspiracy to commit the crimes set forth therein or conspiracy to commit any particular act or crime as a qualifying violent felony.” (Ibid.) As we have mentioned, conspiracy to commit a crime “is a separate and distinct crime from the offense that is the object of the conspiracy. [Citation.] Conspiracy is an inchoate crime, and indeed, here, no act was committed [that would qualify the crime as an enumerated one]. [Citation.]” (Id. at pp. 656-657.)
Thus, the trial court exceeded its authority when it imposed the enhancement under section 186.22, subdivision (b)(1)(C) on count 1 because conspiracy to commit robbery is not a violent felony under section 667.5, subdivision (c). We will instruct the trial court to strike the enhancement.
We note, however, that conspiracy to commit robbery appears to qualify as a serious felony under section 1192.7, subdivisions (c)(19) and (c)(42), and therefore could support a five-year enhancement under section 186.22, subdivision (b)(1)(B).
On remand, when the court strikes the unauthorized enhancements, the court may then impose a greater sentence as to the remaining lawfully imposed enhancements. (See People v. Brown (1987) 193 Cal.App.3d 957, 961, 963, citing People v. Serrato (1973) 9 Cal.3d 753, 764-765.)
VII. Conspiracy to Commit Robbery Enhancement
Defendant also claims the trial court erred in imposing a 10-year firearm use enhancement under section 12022.53, subdivision (e)(1) on the conspiracy to commit robbery offense in count 2. He maintains that conspiracy to commit robbery is not an enumerated felony under section 12022.53, subdivision (a). We agree the enhancement was not properly imposed, but for a different reason.
Section 12022.53, a firearm use enhancement statute, also known as the “10 20 life” law, “imposes increasingly severe sentence enhancements for firearm use in the commission of certain felonies set forth in subdivision (a) of that section.” (People v. Brookfield (2009) 47 Cal.4th 583, 588-589.) Personal use of a firearm results in an additional 10-year prison term (§ 12022.53, subd. (b)), personal and intentional discharge of a firearm results in an additional 20-year term (id., subd. (c)), and personal and intentional discharge of a firearm resulting in death or great bodily injury to a person other than an accomplice results in an additional 25-year-to-life term (id., subd. (d)).
Ordinarily, section 12022.53’s firearm use enhancements apply only when a defendant personally used or discharged a firearm; however, that is not the case when the offense was committed to benefit a criminal street gang. Under section 12022.53, subdivision (e)(1), the firearm use enhancements apply to a defendant who did not personally use or discharge a firearm in a gang-related crime, as long as another principal in the crime did. (People v. Brookfield, supra, 47 Cal.4that p. 590.) This exception, however, is limited by subdivision (e)(2) of the same section, which prohibits the imposition of both a firearm use enhancement and a gang enhancement unless it was the defendant who personally used or discharged a firearm. Thus, when another principal used or discharged a firearm in a gang-related crime and the defendant did not, the firearm enhancement may be imposed—but the firearm use enhancement and the gang enhancement may not both be imposed. (People v. Brookfield, supra, at p. 590.) And when the defendant used or discharged a firearm in a gang-related crime, the firearm use enhancement and the gang enhancement may both be imposed. (Ibid.) In the former situation, as in this case, where only one of the two enhancements may be imposed, the trial court must apply the one that will result in the greater sentence. (Id. at p. 596; § 12022.53, subd. (j).)
Section 12022.53, subdivision (e)(1) provides: “The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).”
Section 12022.53, subdivision (e)(2) provides: “An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.”
Accordingly, here, the trial court should have chosen to impose either the section 12022.53 firearm use enhancement or the section 186.22 gang enhancement on both counts 1 and 2. On remand, the court shall impose whichever enhancement is greater and strike the other.
We note that, as with count 1, it appears count 2, attempted robbery, does not qualify as a violent felony under section 667.5, subdivision (c), but does qualify as a serious felony under section 1192.7, subdivisions (c)(19) and (c)(42), and therefore could support a five-year enhancement under section 186.22, subdivision (b)(1)(B).
VIII. Section 654
The trial court imposed consecutive terms on the convictions for conspiracy to commit robbery (count 1), assault with a firearm (count 3), and assault with a firearm likely to cause great bodily injury (count 6), finding that the crimes were independent crimes committed with different intents. Defendant asserts that two of the sentences should have been stayed.
Section 654 prohibits punishment for more than one offense arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Lewis (2008) 43 Cal.4th 415, 419; People v. Latimer (1993) 5 Cal.4th 1203, 1216.) “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.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) On the other hand, if the defendant entertained multiple criminal objectives that were independent and not incidental to each other, he or she “may be punished for each statutory violation committed in pursuit of each objective” even though the violations were otherwise part of an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) “‘The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple.’ [Citation.] ‘A defendant’s criminal objective is “determined from all the circumstances.”’” (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) “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. [Citations.]” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.)
Section 654, subdivision (a) provides, in pertinent part, that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
Here, there was sufficient evidence to support the trial court’s finding that the gang members harbored independent intents when they committed the two assaults against V., even if the acts were part of an indivisible course of conduct. When the gang members forced V. to the ground by gunpoint, they intended to frighten him and generate his respect for the gang. When they held him on the ground and hit him with a beer bottle, they intended to violently punish him for wearing red while not claiming the gang, and to demonstrate the gang’s violent power to V. and the community. Thus, these two assaults were separate acts motivated by separate intents. And, even if the second assault was motivated by the same intent as the first assault, the second assault was an act of gratuitous violence beyond what was necessary to instill fear and respect into a helpless and unresisting 15-year-old. (See People v. Nguyen (1988) 204 Cal.App.3d 181, 185-190 [§ 654 did not apply where a shooting after a robbery was not necessary, useful, or incidental to the robbery, but was instead an act of gratuitous violence against a helpless and unresisting victim].) In sum, the two assaults were separately punishable offenses.
Defendant also contends the two assaults were acts committed in furtherance of the conspiracy to commit robbery and therefore were not separately punishable in light of the sentence on count 1. As we have explained, the two assaults were committed with intents other than facilitating the robbery of V. Thus, the two assaults and the conspiracy to commit robbery were all separately punishable offenses. (See In re Cruz (1966) 64 Cal.2d 178, 181 [where conspiracy had an objective apart from an offense for which defendant is punished, he may properly be sentenced for the conspiracy as well as for that offense]; People v. Cavanaugh (1983) 147 Cal.App.3d 1178, 1182 [where substantive offenses of forgery were means by which conspiracy to cheat and defraud was carried out, separate punishment prohibited].)
The act of ripping off V.’s shorts and searching his pockets was an act in furtherance of the conspiracy to rob V., but that act was not the basis of any charged offense.
The trial court did not err by not staying the sentences of any of these convictions.
DISPOSITION
The sentence is vacated, and the matter is remanded to the trial court for resentencing consistent with the views expressed in this opinion. The trial court is instructed to strike the section 186.22, subdivision (b)(1)(C) enhancement on count 1, and impose either the section 12022.53 firearm use enhancement or the section 186.22 gang enhancement, and strike the other, on both counts 1 and 2. The trial court shall prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J.Cornell, J.