Opinion
E052071
04-11-2012
THE PEOPLE, Plaintiff and Respondent, v. NARCISO TORRES, Defendant and Appellant.
Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF138123)
OPINION
APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Affirmed with directions.
Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
During a drive-by, gang shooting on June 15, 2007, defendant Narciso Torres (defendant) fired his gun at a rival gang member, Ruben Flores, Jr. (Flores, Jr.), who was driving home. Defendant appeals from judgment entered following jury convictions for premeditated attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1), discharging a firearm at an occupied vehicle (§ 246; count 2), and unlawful participation in a street gang (§ 186.22, subd. (a); count 3). The jury also found true the allegation that count 1 was committed for gang purposes (§ 186.22, subd. (b)). The jury rejected allegations that defendant personally discharged a firearm when committing counts 1 and 2 (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8), and 667). The jury also rejected the gang enhancement as to count 2 (§ 186.22, subd. (b)). The trial court sentenced defendant to life with the possibility of parole.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court abused its discretion in permitting the prosecutor to show a YouTube video to the jury and allowing evidence of a shooting incident which occurred the night before the charged crimes. Defendant also argues there was insufficient evidence establishing the gang crime (count 3) and the crime of attempted murder for the benefit of a gang (count 1). Defendant further asserts that the trial court erred in imposing a concurrent prison term on the gang crime, rather than staying the sentence under 654. As to this last contention, we agree there was sentencing error and the sentence on count 3 should be stayed under section 654. In all other respects, we affirm the judgment.
II
FACTS
Prior Shooting Incident on June 14, 2007
While Ruben Flores, Sr. (Flores, Sr.) was home on June 14, 2007, around 9:00 p.m., he heard 15 or 20 bangs, which he initially thought were fireworks. He went outside with his wife and two sons, including Flores, Jr., and saw broken glass and bullet holes in several cars parked in front of his home. There also was bullet damage to his garage door.
A neighbor, Salvador Andalon, Jr. (Andalon) testified he heard around eight gunshots that night around 9:00, while inside his home. He looked out through his mesh wire security door and saw two shadows from two people headed north. It was dark. A few seconds later, Andalon heard a car leaving the scene. He heard a car engine "rev," like someone had "floored the accelerator," and tires screeching.
Sheriff's Deputy Colon arrived at the scene around 9:00 p.m. Flores, Jr. told Colon he heard fireworks while inside his home. Flores, Jr. said that when he stepped outside, he noticed bullet holes in the vehicles parked in front of his home. Flores, Jr.'s truck was not damaged. Colon found 30 to 32 shell casings at the scene, including eight .40-caliber casings and several .22-caliber and nine-millimeter casings.
Shooting Incident on June 15, 2007
On June 15, 2007, around 5:00 p.m., Flores, Sr. heard three to seven shots fired while he was standing in his driveway behind his car. When he turned toward the sound of the gunfire, he saw Flores, Jr. driving his truck towards the Flores home. Flores, Jr. was about four houses away. Flores, Sr. saw a black Honda, with no license plates, pass Flores, Jr. in the opposite direction. Flores, Sr. believed the gunshots came from the Honda, since there were no other cars in the area and the Honda was in the location where Flores, Jr.'s truck was struck by bullets. After Flores, Jr. arrived at the Flores home and parked in the driveway, he got out of his truck, dropped to the ground, and grabbed his face, believing he had been shot.
A neighbor, Arturo Amezcua (Amezcua), testified that, when he went outside his home around 5:00 p.m., he saw a black Honda Accord, with a dealership plate and four occupants, drive by his home. The front passenger window was down and the passenger leaned forward, as if grabbing something. Seconds later, Amezcua heard around eight gunshots, which sounded like they were coming from in front of the Flores home. A few seconds later, Amezcua saw Flores, Jr. on the ground on his knees. Amezcua ran to him. Flores, Jr. looked scared but was not hurt. Amezcua asked Flores, Jr., "Was it that black car?" Flores, Jr. replied, "Yes." Amezcua identified defendant at a photo lineup and in court as the front passenger.
When Flores, Jr. testified at trial, he was serving time in state prison for possession of a firearm for the benefit of a gang. Flores, Jr. acknowledged he had been an active member of the Dogs Town Riva (DTR) gang but was evasive about his current gang affiliation. Flores, Jr. had "Southsider" tattooed on the back of his neck, yet claimed he did not know what it meant.
Flores, Jr. said he did not recall or know anything about the shooting on June 15, 2007. He also denied gun shots were fired at his home on June 14, 2007. He said he did not know his whereabouts that night around 9:00. He also denied talking to an officer that night. Flores, Jr. further denied being shot at while driving his truck home during the evening of June 15, 2007, or speaking to an officer that night. Flores, Jr. testified that when he was driving his truck on his way home that evening, a piece of glass from his windshield hit his face. Flores, Jr. claimed his windshield broke when sand from a passing truck hit his window.
Sheriff's Deputy Noyes testified that he arrived at the shooting scene on June 15, 2007, in response to a report of gunfire at 5:00 p.m. He spoke to Flores, Jr., who was visibly upset, nervous, "evasive," and "extremely uncooperative." Flores, Jr. eventually told Noyes, "Hey, look, man, all I saw was the gun," and acknowledged he got his cuts on his cheek area from being shot at. Nine .40-caliber shells were found down the street from the Flores home.
Around 10:16 p.m., Sheriff's Deputy Rice pulled over a black Honda Accord. Codefendant Marco Gamboa (Gamboa) was the driver and defendant was in the front passenger seat. Four others were sitting in the back seat. Rice searched the car and found 20 live rounds of .40-caliber ammunition. He also found a fully loaded handgun with one round in the chamber between the front passenger seat and center console. A criminalist testified that all of the .40-caliber shell casings found in the area of the Flores home were fired by the seized gun.
Corporal Wilson (Wilson) of the Riverside County Sheriff's Department gang unit testified as a gang expert. He stated that West Side Riva (WSR) was the most common gang in the area. DTR was also in the area and was a rival of WSR. Wilson testified regarding gang culture, WSR's symbols, and WSR's primary activities, which included robbery, assault, attempted homicide, and possession of deadly weapons. Wilson also testified about four predicate offenses committed by WSR members. Wilson said he was not surprised Flores, Jr. claimed he did not remember anything. Wilson explained that, inside prison, prisoners who testify risk being assaulted and rival street gangs become allies.
Wilson stated that Gamboa had admitted several times he was a WSR gang member and had "WSR" and "Rubidoux" tattoos. Gamboa's moniker was "Huero," which was also Flores, Jr.'s moniker. In 2001 and 2002, defendant admitted to deputies that he was a WSR gang member. Defendant had "WS," a Riverside bell, and "Rudidoux" tattoos. Wilson testified that, in his opinion, defendant and Gamboa were WSR members on June 15, 2007. In a separate case, arising from the traffic stop on June 15, 2007, defendant and Gamboa were convicted of active participation in a gang.
Wilson also stated that in his opinion Flores, Jr. was a member of the DTR gang. Wilson said that, hypothetically, if two gang members in a car commit a drive-by shooting on a rival gang member, the crime benefits the perpetrators' gang. The crime boosts the reputation and stature of the perpetrators' gang.
The jury was shown a video found on YouTube (ex. 120), which consisted of still photos of DTR members, including defendant. The photos were defaced with derogatory written comments and markings, including "187," an "X" on the individuals' faces, and blood dripping from their heads. Flores, Jr.'s moniker, "Huero," was crossed out, below Flores, Jr.'s picture, along with a bull's-eye and "187" written on his photo. There were also pictures of guns, a dead dog, and the Grim Reaper.
III
ADMISSIBILITY OF THE VIDEO
Defendant contends the trial court abused its discretion in permitting the prosecution to show the jury the YouTube video (ex. 120). During the trial, the prosecution requested to introduce three videos copied off the YouTube website. The trial court permitted one of the videos, exhibit 120, which included two photos of Flores, Jr. with an "X" written across his face, along with "187" and a bull's-eye. Defendant objected to the video on the grounds it was unknown who created the video, when it was made, or whether defendant knew about it before committing the charged crimes. In addition, it was highly prejudicial. Defense counsel conceded that the two photographs of Flores, Jr. might be relevant but argued that the video nevertheless should be excluded because it was "overkill" and there was no evidence defendant had anything to do with the video. The trial court ruled the video was admissible, but without sound (rap music), on the ground it suggested a rivalry between DTR and WSR, and was relevant to show motive. The court concluded that the probative value of the video outweighed its prejudicial effect.
Defendant argues the YouTube video was inadmissible because there was no evidence establishing the authenticity or origin of the video. "'To be admissible in evidence, an audio or video recording must be authenticated. [Citations.] A video recording is authenticated by testimony or other evidence "that it accurately depicts what it purports to show." [Citation.]' [Citation.] 'In ruling upon the admissibility of a videotape, a trial court must determine whether: (1) the videotape is a reasonable representation of that which it is alleged to portray; and (2) the use of the videotape would assist the jurors in their determination of the facts of the case or serve to mislead them.' [Citation.]" (People v. Gonzalez (2006) 38 Cal.4th 932, 952; accord, People v. Mayfield (1997) 14 Cal.4th 668, 747 [videotape]; People v. Bowley (1963) 59 Cal.2d 855, 859 [film].) We review the trial court's ruling for abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
Although Wilson testified that he did not know when the video was made or who produced it or made it, nevertheless, Wilson adequately authenticated the video by testifying that he found the video on YouTube and the video was an accurate depiction of what it looked like on YouTube. The trial court could reasonably conclude the videotape was a reasonable representation of the YouTube video and that the video would assist the jurors in determining the facts of the case and motivation for the crimes. (People v. Gonzalez, supra, 38 Cal.4th at p. 952.)
As to defendant's contention there was no authentication evidence as to when the video was created and posted, who produced it, and whether defendant was aware of it, such facts go to the reliability and weight of the video evidence. Furthermore, there was evidence indicating the video was posted by Oscar Montoya, a member of the WSR gang. During the trial, Wilson of the Riverside County Sheriff's Department gang unit, was asked if it was determined who put the YouTube video on the website. Wilson testified: "It was ascertained on YouTube. We do know who the - not so much the originator of that, but the name that's listed on there is Downer. That could be Oscar Montoya, a West Side Riva gang member. But through YouTube it wasn't ascertained under a MySpace or anything where we could research. It was just on YouTube listed that way."
Defendant argues the video was inadmissible because there was no evidence linking defendant to the video. We disagree. Wilson's testimony indicates a member of defendant's gang, WSR, posted the video on YouTube. In addition, the video suggested a rivalry between defendant and Flores, Jr.'s gangs and that defendant's gang, WSR, intended to kill Flores, Jr. The video showed two photographs of Flores, Jr., with "X"'s over his face, his moniker crossed out, and "187" and a target circle written on his photographs. This, along with evidence implicating defendant in the crime of attempted murder, sufficiently linked defendant with the video, which suggested that WSR members intended to shoot and kill Flores, Jr. Any weakness in the link, because of uncertainty as to when the video was produced and whether defendant knew about the video, went to the weight of the evidence, rather than admissibility.
Defendant further asserts the trial court should have excluded the video under Evidence Code section 352 because the video was more prejudicial than probative. Defendant argues the video was highly inflammatory because it indicated that WSR gang members were violent, dangerous, misogynistic, and crude, and they intended to kill Flores, Jr. and others. But the probative value of the video was very strong. It established a clear motive for defendant and codefendant Gamboa to commit the charged offenses. The video also provided compelling evidence that the crimes were gang-related. Defendant conceded the video was not prejudicial with regard to the substantive offenses. He claims, however, he is only arguing prejudice with regard to the gang enhancements and substantive gang offense (count 3). But, as the trial court noted, "evidence that is sufficiently probative is also usually very prejudicial towards the defense." This does not necessarily warrant excluding the highly probative evidence. (People v. Scott (2011) 52 Cal.4th 452, 491.)
We conclude the gang evidence, while prejudicial, did not outweigh its probative value. "'"Unless the dangers of undue prejudice, confusion, or time consumption '"substantially outweigh"' the probative value of relevant evidence, a section 352 objection should fail. [Citation.] '"The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.'" [Citation.]' [Citation.] [¶] The prejudice that section 352 '"is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" [Citation.]' [Citation.] In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." [Citation.]' [Citation.]" (People v. Scott, supra, 52 Cal.4th at p. 491.)
Here, the video was not disproportionately inflammatory, particularly compared to the charged offenses and other gang-related evidence. "'[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.' [Citations.]" (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; see also People v. Martinez (2003) 113 Cal.App.4th 400, 413.) "Accordingly, when evidence of gang activity or affiliation is relevant to motive, it may properly be introduced even if prejudicial." (People v. Garcia (2008) 168 Cal.App.4th 261, 275.)
The "'admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court's decision exceeds the bounds of reason. [Citation.]' [Citation.]" (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1550.) In the instant case, the trial court reasonably concluded the probative value of the video in establishing motive outweighed its prejudicial effect and thus the court did not abuse its discretion in admitting the evidence.
IV
ADMISSIBILITY OF EVIDENCE OF A PRIOR INCIDENT
Defendant contends the trial court abused its discretion in permitting the prosecutor to introduce evidence of the shooting incident on June 14, 2007, the night before the charged offenses. We disagree.
Prior to trial, defense counsel requested the court to exclude all evidence relating to the June 14, 2007, shooting incident on the grounds the evidence was not relevant and it was far more prejudicial than probative because there was no evidence that either defendant or codefendant Gamboa was involved in the June 14 incident. The prosecutor responded that he intended to use the evidence under Evidence Code section 1101, subdivision (b) to show common plan or scheme, motive, and intent. Specifically, the evidence established the charged crimes were gang-related and that members of defendant's gang, including defendant, went to Flores, Jr.'s home on June 14, 2007, and fired at Flores, Jr.'s family's house and vehicles. The next day, they returned, with the same intent and motive, to cause harm to Flores, Jr. The .40-caliber handgun shell casings found at the scene on June 14, 2007, matched defendant's gun and the shells found at the scene after the June 15, 2007, shooting. The trial court ruled evidence of the June 14 shooting was admissible because it showed common plan or scheme, motive, and intent. The court noted that evidence that the same gun, belonging to defendant, was used during both incidents connected defendant to both incidents.
Evidence Code section 1101, subdivision (a), generally prohibits the use of character evidence to prove defendant's conduct on a specified occasion. However, Evidence Code section 1101, subdivision (b), provides for the admission of evidence of similar acts of misconduct (or uncharged crimes) when relevant to prove some fact, such as motive, intent, plan, or identity, other than the defendant's disposition to commit such an act. As the Supreme Court explained in People v. Ewoldt, "[t]here exists a continuum concerning the degree of similarity required for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought: 'The least degree of similarity . . . is required in order to prove intent. . . .' [Citation.] By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity." (People v. Soper (2009) 45 Cal.4th 759, 776, fns. & italics omitted, citing People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).)
"To establish a common design or plan, the evidence must demonstrate not merely a similarity in the results, but '"such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." [Citation.]' [Citation.]" (People v. Balcom (1994) 7 Cal.4th 414, 423-424, quoting Ewoldt, supra, 7 Cal.4th at pp. 393-394.) "To be relevant, the plan, as established by the similarities between the charged and uncharged offenses, need not be distinctive or unusual. Evidence that the defendant possessed a plan to commit the type of crime with which he or she is charged is relevant to prove the defendant employed that plan and committed the charged offense." (Balcom, at p. 424.) To establish intent, the uncharged act must be sufficiently similar to the charged offense to raise an inference that the charged offense was committed with the same intent (People v. Carter (1993) 19 Cal.App.4th 1236, 1246) but it need not reach the same quantum of similarity as when the uncharged conduct is used to prove identity. (People v. Gallego (1990) 52 Cal.3d 115, 172.)
Whether evidence of a prior act is admissible also depends on three factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 22.) Evidence may be excluded under Evidence Code section 352 if its probative value substantially outweighs its prejudicial effect. (People v. Lenart (2004) 32 Cal.4th 1107, 1123; Evid. Code, § 352.) "On appeal, a trial court's ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion. [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 637.)
Here, evidence of the June 14, 2007, shooting was admissible because it was relevant to establishing a common plan or scheme, motive, intent, and identity. Although the two incidents were not identical in a number of ways, there was sufficient evidence of similarity between the two incidents to admit the evidence under Evidence Code section 1101, subdivision (b). There was evidence that both incidents were committed with the same gun, which was found in defendant's possession within five hours after the June 15, 2007, shooting. Also, both incidents occurred at the same location and involved the same target, Flores, Jr. It is reasonable to infer from these circumstances that defendant, along with other members of his gang, participated in the shooting on June 14, 2007, in an attempt to kill or intimidate rival gang member, Flores, Jr., and then returned the following day, with the same objective of attempting to kill Flores, Jr. Defendant argues there was no evidence that Flores, Jr. was the target of both shootings. We disagree. There was compelling evidence, including graphic photos (ex. 120) and gang expert testimony, which established that the charged crimes were a product of gang rivalry between defendant's gang and Flores, Jr.'s gang, and the WSR gang intended to kill Flores, Jr.
Defendant further argues evidence of the June 14, 2007, shooting incident should have been excluded as unduly prejudicial. But the evidence was highly probative in proving defendant's motive, intent, and plan to shoot Flores, Jr. On June 14, 2007, defendant went to Flores, Jr.'s home and shot up the family cars outside Flores, Jr.'s home. A reasonable inference can be made that, had Flores, Jr. been outside, defendant would have shot him as well. Since he was not there, defendant fired at the family cars outside Flores, Jr.'s home, and then returned the next day to try again to shoot Flores, Jr. This time, Flores, Jr. happened to be returning home, providing defendant with the opportunity to fire at Flores, Jr.
Even though the evidence of the June 14, 2007, shooting incident may be damaging to the defense, it does not substantially outweigh its probative value. "'"The prejudice that section 352 '"is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence."' [Citations.]" (People v. Scott, supra, 52 Cal.4th at p. 491.) "'"Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant."'" (Id. at p. 490.) Here, the trial court did not abuse its discretion in allowing evidence of the June 14, 2007, incident, as being significantly more probative than prejudicial.
V
SUFFICIENCY OF EVIDENCE OF GANG OFFENSE AND ALLEGATION
Defendant contends there was insufficient evidence supporting his conviction for the gang offense (§ 186.22, subd. (a); count 3) and gang enhancement attaching to count 1 (§ 186.22, subd. (b)). We disagree.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
A gang enhancement under section 186.22, subdivision (b)(1), increases punishment for "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, . . ." To prove the enhancement, the prosecution need only prove that the gang was a criminal street gang and that the underlying crime was committed for the benefit of, at the direction of, or in association with that gang, with the specific intent to promote, further, or assist in criminal conduct by gang members. (In re Ramon T. (1997) 57 Cal.App.4th 201, 206-207.)
To support the criminal street gang enhancement, "'[T]he record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.' (People v. Martinez (2004) 116 Cal.App.4th 753, 762 . . . ." (People v. Ochoa (2009) 179 Cal.App.4th 650, 657, cited in People v. Albillar (2010) 51 Cal.4th 47, 62, 67.) But "[c]ommission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime." (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) In Albillar, in which the crimes were committed by gang members in concert, the California Supreme Court citing Ochoa, concluded: "We therefore find substantial evidence that defendants came together as gang members to attack Amanda M. and, thus, that they committed these crimes in association with the gang." (Albillar, supra, 51 Cal.4th at p. 62, citing Ochoa, supra, 179 Cal.App.4th at p. 661, fn. 7.)
The court in Albillar noted that the gang enhancement, section 186.22, subdivision (b)(1), "requires proof that the defendant commit a gang-related crime in the first prong—i.e., that the defendant be convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang. [Citation.] There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." (People v. Albillar, supra, 51 Cal.4th at p. 67, citing People v. Ochoa, supra, 179 Cal.App.4th at p. 661, fn. 6.) The instant case is similar to Albillar in that it involves gang members committing crimes together, whereas Ochoa is distinguishable in that it involved a single defendant committing a crime alone. Here there was ample evidence that defendant was an active member of a street gang and that he was accompanied by another gang member, Gamboa, during the commission of the charged offenses.
The YouTube video and Wilson's gang expert testimony provided additional evidence the crimes were committed for the benefit of defendant's gang. Evidence of the June 14, 2007, shooting incident further supported a finding that the charged crimes were part of a gang-related plan or scheme to kill Flores, Jr. The evidence was more than sufficient to support the gang enhancement, requiring a finding the charged crime of attempted murder (count 1) was committed "for the benefit of a gang" (§ 186.22, subd. (b)).
Defendant also challenges the substantive gang offense on the ground there was insufficient evidence that defendant willfully promoted, furthered, or assisted in felonious criminal conduct by members of his gang. (§ 186.22, subds. (a) & (b).) The substantive gang offense of active participation in a criminal street gang under section 186.22, subdivision (a) requires proof that defendant (1) actively participated in a criminal street gang with knowledge that its members engaged in, or have engaged in, a pattern of criminal gang activity, and (2) willfully promoted, furthered, or assisted in felonious criminal conduct by members of the gang. (People v. Bautista (2005) 125 Cal.App.4th 646, 656, fn. 5.) Defendant does not dispute the sufficiency of evidence as to the first element.
As with the gang enhancement, there was substantial evidence establishing the second element of the gang crime. The evidence included gang expert testimony provided by Wilson, the video, ballistic evidence, evidence of the June 14, 2007, shooting incident, and witness testimony that defendant fired at Flores, Jr., from a car driven by Gamboa, a fellow gang member. Defendant committed the charged crimes in concert with another gang member. "Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime." (People v. Villalobos, supra, 145 Cal.App.4th at p. 322, citing People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) We conclude the evidence was sufficient to establish both the substantive gang charge and the gang enhancement.
VI
IMPOSING CONCURRENT TERM FOR THE GANG CRIME
AND ENHANCEMENT
Defendant contends the trial court erred in sentencing him to attempted murder for the benefit of a gang (§ 186.22, subd. (b); count 1) and to a concurrent term for the substantive gang crime (§ 186.22, subd. (a); count 3). The trial court sentenced defendant to life with the possibility of parole, with a minimum term of 15 years, for count 1 with the gang enhancement. Defendant argues that his concurrent two-year sentence for the gang crime must be stayed under section 654 because he had only one objective when he committed the underlying attempted murder crime and the gang crime: to shoot Flores, Jr. for the benefit of defendant's gang. The People recognize that People v. Sanchez (2009) 179 Cal.App.4th 1297, 1309-1316 (Sanchez) [Fourth Dist., Div. Two] supports this proposition but urge us to reconsider our holding in Sanchez and affirm the concurrent sentence on the gang crime. We decline to do so.
Section 654, subdivision (a), provides in relevant part that: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "With respect to punishment imposed under statutes that define a criminal offense, it is well settled that '[s]ection 654 bars multiple punishments for separate offenses arising out of a single occurrence where all of the offenses were incident to one objective.' [Citation.]" (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) A trial court's implied finding that defendant had a separate intent and objective for each charged offense will be upheld if it is supported by substantial evidence. (Sanchez, supra, 179 Cal.App.4th at p. 1310.)
Whether section 654 prohibits multiple punishment for active participation in a criminal gang and for the underlying offense has not been clearly established in California. The issue is pending before the California Supreme Court in People v. Mesa (2010) 116 Cal.Rptr.3d 881 [(S185688) 186 Cal.App.4th 773] (petn. for review granted Oct. 27, 2010). In Sanchez, supra, 179 Cal.App.4th at page 1316, this court rejected the People's position that such concurrent sentencing is proper under section 654.
In Sanchez, the defendant was convicted of robbery and the substantive gang offense. (Sanchez, supra, 179 Cal.App.4th at p. 1309.) The defendant argued the term imposed for gang participation should have been stayed under section 654 because there was only one objective. This court agreed and reversed the concurrent sentence on the substantive gang crime. (Sanchez, at p. 1315.) We held in Sanchez that section 654 precludes multiple punishment for both the crime of gang participation and the underlying robbery. (Sanchez, at p. 1314.) We explained that "the underlying robberies were the act that transformed mere gang membership - which, by itself, is not a crime -into the crime of gang participation. Accordingly, it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing the robberies." (Id. at p. 1315.) We concluded that where "the only way the jury could have found defendant guilty of gang participation was by finding that he committed the underlying robberies," section 654 precludes multiple punishment. (Id. at p. 1316.)
Likewise, in the instant case involving a drive-by shooting, we conclude defendant's objective of shooting Flores, Jr. was the same objective as defendant's objective in committing the gang offense. Defendant had the single objective of attempting to kill Flores, Jr. for the benefit of defendant's gang. As we explained in Sanchez, for section 654 to apply, "the defendant must be found guilty of both gang participation and the underlying felony. And to be found guilty of gang participation, the defendant must either personally commit the underlying felony, or 'willfully promote[], further[], or assist[]' the underlying felony. (Pen. Code, § 186.22, subd. (a) . . . .) Thus, if the defendant is also found guilty of the underlying offense, the defendant's intent and objective in committing both offenses must be the same." (Sanchez, supra, at p. 1314.)
We therefore conclude section 654 bars concurrent sentencing on the substantive gang crime (count 3). Concurrent sentencing for the substantive gang crime was improper under section 654 and must be stayed. We recognize that other courts have decided this issue differently but, unless and until our high court rules differently, we will adhere to our own precedent, Sanchez, supra, 179 Cal.App.4th at p. 1316, and hold concurrent sentencing on the gang crime and underlying felony with the attached gang enhancement, is improper.
VII
DISPOSITION
The judgment is modified to reflect that defendant's concurrent two-year sentence on the substantive gang crime, count 3, is stayed. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment that correctly reflects defendant's sentence as modified, and to forward copies of the amended abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RICHLI
Acting P.J.
KING
J.