Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCS209896, Timothy R. Walsh, Judge.
HALLER, J.
Francisco Valadez was convicted of attempted murder, kidnapping, unlawful driving or taking a vehicle, false imprisonment by violence or menace, and robbery, with true findings on gang enhancement allegations. He asserts (1) his unlawful driving or taking conviction must be stricken because it is a lesser included offense of robbery; (2) there is insufficient evidence to support the gang enhancements; and (3) he cannot be punished for both robbery and false imprisonment, and for both attempted murder and kidnapping. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Over the course of more than 24 hours, defendant robbed, imprisoned, kidnapped, and shot Jorge Lomeli. Defendant is a member of a San Ysidro gang known as "Sidro" and uses the moniker "Perro." During the commission of the crimes, defendant was assisted at various times by two other persons, Ramon Mariscal and Enrique Delgado. Mariscal is also a Sidro gang member and uses the moniker "Sneaky." Delgado is a member of an organized crime family; he is known by Sidro gang members and is viewed as "somebody important [who] you [are] not supposed to... cross."
Lomeli survived the shooting, and testified at trial to describe what occurred. Mariscal agreed to cooperate with the prosecution and testified against defendant. Emma Huerta, who associates with Sidro gang members and was present during most of the offenses, also agreed to testify for the prosecution.
On the night of March 21, 2007, Huerta and defendant spoke on the phone and made plans to meet at a motel in San Ysidro to "hang out" and smoke methamphetamine. At about 9:00 p.m., Huerta started walking from her home to the motel. Victim Lomeli, who was driving his brother's truck, saw Huerta walking and asked if she wanted a ride. After two or more requests by Lomeli, Huerta agreed to accept a ride.
At Huerta's suggestion, Lomeli drove them to the nearby motel where Huerta was planning to smoke methamphetamine with defendant. Lomeli parked the truck in a parking lot by the motel and waited with Huerta in the truck. Delgado and another man arrived at the motel in a car. Delgado walked up to the truck, told them they looked suspicious, and asked what they were doing. Huerta told Delgado she was waiting for a friend; Delgado asked if she was waiting for "Perro" and Huerta answered, "yes." Delgado and the other man went into a motel room which had been rented by Delgado. Huerta and Lomeli were invited into the motel room, where they smoked methamphetamine provided by Delgado. Delgado became concerned when he learned that Huerta had just met Lomeli that evening. Delgado apparently called defendant about this, and during the phone call defendant instructed Huerta to have Lomeli wait outside.
Delgado then pointed a gun at Lomeli. Huerta told Delgado that "it was good, that it was cool, that [defendant] told [her] to tell [Lomeli] to wait outside, that's it." Delgado responded that "it was no longer in [her] hands, " which she understood to mean she could not do anything about it.
Defendant and Mariscal arrived in a second car and also went into the motel room. Lomeli heard defendant being called "Perro" and Mariscal being called "Sneaky." Defendant told Mariscal to make sure Lomeli was not an undercover officer. Mariscal searched Lomeli for a wire and took Lomeli's wallet, phone, and watch. One of the men also took Lomeli's keys. Delgado and defendant asked Lomeli questions, such as "Who are you, " "Are you a cop, " and "Who do you know, [from any gangs]." Lomeli responded that he was Huerta's friend.
Lomeli testified that he only saw Delgado with a gun. In contrast, Huerta testified that when defendant arrived in the room, Delgado passed the gun to defendant. The jury apparently credited Lomeli's version because it rejected the prosecution's allegation that defendant personally used a gun during the robbery.
Defendant told Lomeli to go into the bathroom and not to come out. Lomeli complied because he was afraid. Defendant told Mariscal not to let Lomeli leave. Mariscal testified that they did not want Lomeli to leave "[b]ecause if he was an undercover [officer] he might get [them] busted."
Lomeli testified that defendant instructed him to go into the bathroom, whereas Mariscal and Huerta testified that Mariscal told Lomeli to go into the bathroom after the others left. According to Mariscal, he wanted privacy so he could engage in sexual activity with Huerta. Mariscal testified that prior to this point he had been sitting close to the motel room door so Lomeli could not leave.
Defendant and Delgado went outside with Lomeli's keys. A couple of minutes later, defendant and Delgado returned and asked Lomeli how to start the ignition on his truck; Lomeli provided them with this information. Defendant and Delgado then left the motel, with one of them driving Lomeli's truck.
Later, defendant called and asked for Lomeli's PIN number for his bank card; Lomeli provided the number. According to Huerta, during this phone call defendant told Lomeli that he should remain calm and he was going to get his truck back. Thereafter, Lomeli's card was used for purchases at convenience stores and attempted cash withdrawals.
Defendant called again that night and told Huerta that a man and a woman were coming to the motel room to smoke methamphetamine. When they arrived, Mariscal and Huerta smoked methamphetamine provided by these individuals.
Around 3:00 a.m. on March 22, defendant picked Huerta up from the motel in a car, and Delgado followed them in Lomeli's truck. Defendant and Delgado drove the vehicles to a house in National City, where Huerta waited in the car for about one hour while the men were in the house. At about 5:00 a.m., the men (still driving the car and Lomeli's truck) dropped Huerta off at her apartment complex.
Lomeli was kept in the bathroom the entire night. He did not sleep because he was afraid. Mariscal stayed awake in the motel room to make sure Lomeli did not leave. At one point Mariscal opened the bathroom door and told Lomeli to be calm and "everything was going to be okay." Lomeli told Mariscal he wanted to leave, but Mariscal said he could not do anything. Mariscal testified that they did not want to release Lomeli because they were still trying to find out if he was an undercover officer.
Around 10:30 or 11:30 a.m., defendant and Delgado returned to the motel room. The men gathered up their things to check out of the room and loaded them into two cars. Lomeli's truck was not there. Mariscal got Lomeli out of the bathroom. In response to Lomeli's inquiry about his truck, defendant told him they "were going to get it sometime, maybe later in the afternoon." Defendant told Lomeli "to not try anything, to not run, to behave [him]self, " and that if he tried to escape defendant would shoot him in the head. According to Mariscal, they would not let Lomeli go because they "[s]till hadn't found out what was going on."
During the day, defendant drove Mariscal and Lomeli in the car to various locations in the San Ysidro area, including a gas station, a convenience store, a hotel, two apartment complexes, and a trailer park. Defendant and Mariscal smoked methamphetamine at some of these locations. When defendant stopped for gas, he told Lomeli that "he was going to use his truck, then give it back to him later." At the convenience store, defendant met with Delgado (who was driving the other car). At some point defendant separated from Mariscal and Lomeli. Mariscal and Lomeli went inside an apartment and stayed there with other people for the rest of the day. Lomeli testified that he sat on a couch watching television and was provided no food.
Mariscal claimed that Lomeli also smoked methamphetamine on these occasions, but Lomeli denied this.
At about 4:00 p.m. defendant called Huerta to see if she wanted to smoke methamphetamine. Huerta agreed. Defendant picked her up in a car. Huerta noticed that defendant had a gun in his waistband. Defendant took Huerta to the apartment where Mariscal and Lomeli were staying. Huerta testified that the apartment was known as a place where "everybody hangs out"; i.e., the "people that smoke methamphetamine or people from Sidro." Huerta was surprised to see Lomeli, and asked him, "[T]hey still haven't let you go?" Huerta went inside the bathroom and smoked methamphetamine with defendant. At about 6:00 p.m., defendant told Lomeli that he was going to take him to his truck in Chula Vista. Defendant, Mariscal, Lomeli and Huerta left in the car. Defendant drove; Huerta sat in the front passenger seat and Mariscal and Lomeli sat in the back.
When they were in the Chula Vista area, defendant instructed Lomeli to put a beanie over his head and pull it over his eyes. Defendant told Lomeli that this was necessary so the people who had the truck could not see him. When they arrived at a street in Chula Vista where the truck was parked, defendant said, "[T]hey're not using it" or "they weren't done using it." Defendant then said they were going to the casino.
They passed the casino, and defendant drove to the mountains. He stopped the car in a dark, rural spot in the Alpine area. Defendant told Huerta to get out of the car. Huerta complied. Defendant had sex with Huerta outside the car by the trunk area. After he was finished, he grabbed a rope and a bag from the trunk. Thinking that defendant was going to tie up Lomeli, Huerta grabbed defendant's arm and said, "[P]lease don't." Defendant responded, "I can't, I can't."
Defendant told Huerta to go back inside the car. Inside the car, Huerta, who was crying and afraid, put a sweater over her face because she did not want to see whatever was going to happen. Defendant told Mariscal to instruct Lomeli to get out of the car and to start walking. When Lomeli got out of the car, Mariscal took the beanie off of him. Lomeli did not start walking because he knew they were going to shoot him in the back. Lomeli was crying and pleading with defendant, saying he had never done anything to him. Defendant told Lomeli to "keep still" and "not make it any harder." Defendant shot Lomeli in the mouth, but then the gun jammed. Lomeli pleaded, "Don't kill me. I'm cool. I'm a cool person." Lomeli started running away. Defendant unjammed the gun and started shooting again, hitting Lomeli in the back of the head. Defendant and Mariscal got in the car, and defendant reached behind Huerta and shot at Lomeli through the open passenger window.
Mariscal testified that he was surprised at the turn of events and he did not know defendant was going to shoot Lomeli. While they were driving, defendant stated the gun had never stuck before; he had never seen anyone get shot in the head and still keep talking; and he had to shoot Lomeli because Lomeli had seen Delgado's face.
Defendant drove to a house in Chula Vista where he and Mariscal washed the blood off the car with a hose. They then went to two houses (in San Ysidro and National City) where they smoked methamphetamine.
Meanwhile, at about 3:40 a.m. on March 23, the police received a report of the shooting from a resident in the Alpine area who heard the gunshots. Lomeli underwent surgery and spent about two weeks in the hospital.
The prosecution's gang experts testified that the Sidro gang is a South Bay gang with about 116 members whose primary criminal activities are murder, attempted murder, robbery, and narcotics transactions. Detective Michael Speyrer opined that defendant's crimes were for the benefit of, or in association with, Sidro gang members. Speyrer testified that defendant's act of shooting Lomeli because he had seen Delgado showed that gang members protected those with whom they associated in their drug activities, which gains trust and respect for the gang. The crimes also make it easier for the gang to commit other crimes because they make witnesses and victims afraid to testify. Mariscal and Huerta testified that they feared Delgado, and that they would be viewed as "snitch[es]" and had placed their lives in jeopardy by testifying.
The jury convicted defendant of attempted murder, kidnapping, unlawful taking or driving a vehicle, false imprisonment by violence or menace, and robbery, and found true various great bodily injury and firearm enhancements. The jury also found a gang enhancement true for all counts. Defendant admitted a prior conviction that qualified as a serious felony prior conviction and a strike prior conviction. He was sentenced to an indeterminate term of 75 years to life, plus a determinate term of 49 years, eight months.
DISCUSSION
I. Vehicle Code Section 10851 is Not a Lesser Included Offense of Robbery
Valadez was charged and convicted of both robbery (Pen. Code, § 211) and unlawful taking or driving of a vehicle (Veh. Code, § 10851). The trial court stayed the sentence on the Vehicle Code conviction under section 654. Valadez argues that the Vehicle Code section 10851 offense is a lesser included offense of robbery, and thus his Vehicle Code section 10851 conviction must be stricken.
Subsequent unspecified statutory references are to the Penal Code.
Section 954 authorizes multiple convictions for different offenses arising from the same act or course of conduct. (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) However, under a judicially created exception to this rule, a defendant may not receive multiple convictions based on necessarily included offenses. (Id. at p. 1227.) A lesser offense is necessarily included within a greater offense if the greater offense cannot be committed without also committing the lesser offense. (Ibid.; People v. Sanchez (2001) 24 Cal.4th 983, 988.) This exception is based on the rationale that if the greater offense cannot be committed without committing the lesser, conviction of the greater is also conviction of the lesser, and thus to permit conviction of both offenses in effect convicts the defendant twice of the lesser offense. (People v. Medina (2007) 41 Cal.4th 685, 702; People v. Sanchez, supra, 24 Cal.4th at p. 994 [conc. opn. of Mosk, J.].)
In contrast, a defendant may not receive multiple punishment for different offenses arising from the same act or course of conduct. (§ 654; People v. Reed, supra, 38 Cal.4th at pp. 1226-1227.)
The terms "lesser included offense" and "necessarily included offense" are used interchangeably. (People v. Sloan (2007) 42 Cal.4th 110, 115, fn. 2.)
When identifying lesser included offenses, the California Supreme Court has clarified that both the elements and accusatory pleading tests should be used to ascertain whether a defendant may be convicted of an uncharged lesser offense, whereas solely the elements test should be used to decide whether a defendant may sustain multiple convictions based on multiple charged offenses. (People v. Reed, supra, 38 Cal.4th at pp. 1229-1231.) Further, the identification of lesser included offenses does not include a consideration of the facts presented at trial. (People v. Ortega (1998) 19 Cal.4th 686, 698.)
The Reed court reasoned that it is appropriate to apply both the elements and the accusatory pleading tests when the question is whether the defendant has received notice, and therefore may be convicted, of an uncharged lesser offense, whereas there is no need to look beyond the elements to determine if a defendant can sustain multiple convictions based on a charged lesser offense, because the latter situation does not concern notice but merely involves an exception to the general rule permitting multiple conviction. (People v. Reed, supra, 38 Cal.4th at pp. 1229-1231.)
Under the elements test, an offense is necessarily included in another offense if all the elements of the lesser offense are included in the elements of the greater offense, so that the greater offense cannot be committed without also necessarily committing the lesser offense. (People v. Montoya (2004)33 Cal.4th 1031, 1034.) Accordingly, for purposes of deciding whether the multiple conviction bar applies here, we must examine the elements of robbery and the Vehicle Code section 10851 offense.
We assume for purposes of our analysis that the robbery and the Vehicle Code section 10851 charges, as presented to the jury here, arose from the same act or course of conduct so as to potentially trigger the multiple conviction bar; i.e., the robbery was based on the taking of the car (as well as the other personal items) and the Vehicle Code offense was likewise based on the taking of the car. The parties do not contend otherwise.
The elements of robbery are the taking of personal property from a person or the person's immediate presence by means of force or fear, with the intent to permanently deprive the person of the property. (§ 211; People v. Marshall (1997) 15 Cal.4th 1, 34.) The elements of the Vehicle Code section 10851 offense are the taking or driving of a vehicle without the owner's consent and with the intent to permanently or temporarily deprive the owner of title or possession to the property, whether with or without the intent to steal. (Veh. Code, § 10851, subd. (a).) Vehicle Code section 10851 " 'proscribes a wide range of conduct, ' " and includes both a theft and nontheft form of the offense. (People v. Garza (2005) 35 Cal.4th 866, 876.) For example, the section can be violated " 'either by taking a vehicle with the intent to steal it [a theft offense] or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding) [a nontheft offense].' " (Ibid.)
The intent to permanently deprive is shorthand for intent to steal and may be shown by an intent to deprive "temporarily" but for an "unreasonable time so as to deprive the person of a major portion of [the property's] value or enjoyment." (People v. Avery (2002) 27 Cal.4th 49, 55-58.)
Vehicle Code section 10851, subdivision (a), defines the unlawful driving or taking offense as follows: "Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle...."
Reviewing only the elements of the two offenses, it is apparent that a defendant who has committed robbery has not necessarily committed the Vehicle Code section 10851 offense because a robbery can be committed without stealing a vehicle. This precise principle has long been recognized by the California Supreme Court. (People v. Marshall (1957)48 Cal.2d 394, 399.) In Marshall, the court applied the elements test and determined that robbery did not necessarily include a Vehicle Code section 503 offense (the predecessor statute to Vehicle Code section 10851) because any kind of personal property may be taken in a robbery, whereas only the taking of a vehicle is prohibited by the Vehicle Code offense. (People v. Marshall, supra, at p. 399; see also People v. Dominguez (1995) 38 Cal.App.4th 410, 419; People v. Green (1996) 50 Cal.App.4th 1076, 1084.)
To support a contrary position, Valadez cites People v. Ortega, supra, 19 Cal.4th 686, a case evaluating whether grand theft of an automobile (§ 487, subd. (d)(1)) is a lesser included offense of robbery. The Ortega court concluded that grand theft auto is a necessarily included offense of robbery even though "robbery can be committed without taking an automobile." (Ortega, supra, p. 698.) In Ortega, the court considered the long-standing principle that robbery is a form of theft (with the additional element of force or fear) and that "the crime of theft, in one form or another, always is included within robbery." (Id. at pp. 694-697.) Ortega reasoned: "[G]rand theft is simply one of the two degrees of the general crime of theft, and... the theft of an automobile is simply one of the many forms of theft that constitute grand theft. [¶] Theft, in whatever form it happens to occur, is a necessarily included offense of robbery." (Id. at pp. 698-699.) Based on its conclusion that grand theft auto was necessarily included within robbery, the Ortega court held that the defendants, who robbed the victim of a car and other items during an indivisible course of conduct, could not sustain grand theft convictions in addition to their robbery convictions. (Id. at pp. 699-700.)
Valadez contends that Ortega's conclusion that grand theft auto (under the elements test) is a necessarily included offense within robbery applies equally to Vehicle Code section 10851. We disagree.
The conclusion in Ortega was based on an evaluation of the Penal Code provisions governing theft. Section 484, subdivision (a) defines the crime of general theft; section 486 provides that theft is divided into two degrees (grand and petty); and several other statutes (including section 487, subd. (d)(1) for grand theft auto) specify that certain forms of theft are grand theft. (People v. Ortega, supra, 19 Cal.4th at pp. 693, 696.) Under these provisions, the crime of grand theft auto is not a separate offense, "but simply the higher degree of the crime of theft." (Id. at p. 696.) In short, because grand theft auto merely defines the degree of the general crime of theft, grand theft auto is necessarily included within robbery. (Id. at pp. 696-697; see also People v. Sloan, supra, 42 Cal.4th at pp. 113-114 [enhancement allegation does not constitute element of offense for purposes of multiple conviction bar for lesser included offenses].)
We note that the Ortega court cited Marshall to support its conclusion that grand theft auto is a lesser included offense of robbery. (People v. Ortega, supra, 19 Cal.4th at pp. 694-695, 699.) The issue in Marshall was whether an accusatory pleading charging the defendant with robbery provided the defendant with notice that he could instead be convicted of the Vehicle Code offense. (People v. Marshall, supra, 48 Cal.2d at pp. 397-400.) Ortega's citation to Marshall was to a portion of the Marshall opinion concluding that the Vehicle Code offense was a lesser included offense of robbery under the accusatory pleading test because the information alleged that the robbery was committed by the taking of an automobile. (People v. Marshall, supra, 48 Cal.2d at pp. 399-400.) Thus, Ortega's citation to this portion of the Marshall opinion does not shed light on whether Ortega's analysis should impliedly override Marshall's assessment that the Vehicle Code offense is not necessarily included within robbery under the elements test.
Unlike the Penal Code theft provisions analyzed in Ortega, Vehicle Code section 10851 does not define merely a degree of general theft, but rather defines an offense distinct from general theft. Whereas the Penal Code generally defines theft as applying to all types of personal property and then specifies the degree of the theft based on the type of property, Vehicle Code section 10851 is directed solely at the theft of vehicles. Evaluating the elements of robbery and theft set forth in the Penal Code, robbery necessarily includes theft because theft is committed regardless of the type of property taken. In contrast, evaluating the elements of robbery and Vehicle Code section 10851, robbery does not necessarily include the Vehicle Code offense because the latter requires the taking of a vehicle. Thus, a defendant who has committed a robbery has necessarily committed the general theft offense defined in the Penal Code, but has not necessarily committed the vehicular theft defined in Vehicle Code section 10851. (Cf. People v. Sanchez, supra, 24 Cal.4th at pp. 988-992 [gross vehicular manslaughter while intoxicated (which is not simply a degree of manslaughter) is not lesser included offense of murder even though manslaughter is necessarily included in murder].)
Our conclusion is buttressed by the fact that Vehicle Code section 10851 describes both a theft and a nontheft form of the offense. (See People v. Garza, supra, 35 Cal.4th at p. 876; People v. Montoya, supra, 33 Cal.4th at p. 1034, fn. 2.) Although Vehicle Code section 10851 is necessarily violated upon commission of vehicular theft, the statute is not simply a "theft" statute akin to the grand theft auto statute analyzed in Ortega. Given Vehicle Code section 10851's nontheft component, it would be incongruous to characterize the crime as merely a general theft offense subsumed under robbery for purposes of the multiple conviction bar.
The California Supreme Court has underscored that the multiple conviction bar for lesser included offenses is a judicially created exception to the general rule permitting multiple conviction, and has suggested that this exception should not be interpreted expansively to "defeat[] the legislative policy [set forth in section 954] permitting multiple conviction." (People v. Reed, supra, 38 Cal.4th at pp. 1227, 1231; People v. Sloan, supra, 42 Cal.4th at pp. 118-120; People v. Sanchez, supra, 24 Cal.4th at pp. 987-991.) Because Vehicle Code section 10851 is not a general theft statute, it does not fall within the parameters of the Ortega analysis concerning grand theft auto. Absent a contrary direction from our high court, we conclude Marshall's assessment that-under the elements test-robbery does not necessarily include the Vehicle Code offense is still viable after Ortega.
II. Sufficiency of Evidence of Gang Enhancement
Valadez contends there is insufficient evidence to support the gang enhancements found true on all counts.
In evaluating a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Williams (2009)170 Cal.App.4th 587, 623.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Id. at p. 624.) If the circumstances reasonably justify the trier of fact's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)
To establish the gang enhancement, the prosecution must prove the crime was "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...." (§ 186.22, subd. (b)(1).) These elements require that the crime and the defendant's specific intent be "gang related." (People v. Gardeley (1996) 14 Cal.4th 605, 622-625 & fns. 10, 12 [gang enhancement statute "increases the punishment for a defendant who committed a felony to aid or abet criminal conduct of a [gang], and who acted with the specific intent to do so"]; In re Frank S. (2006) 141 Cal.App.4th 1192, 1199.) A defendant's mere membership in the gang does not suffice to establish the gang enhancement. (People v. Gardeley, supra, 14 Cal.4th at p. 623; In re Frank S., supra, 141 Cal.App.4th at p. 1199; People v. Ochoa (2009) 179 Cal.App.4th 650, 663.) Similarly, the gang enhancement is not supportable if the circumstances show gang members committed the crime "on a frolic and detour unrelated to the gang." (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Rather, '' '[t]he crime itself must have some connection with the activities of a gang....' " (In re Frank S., supra, 141 Cal.App.4that p. 1199.)
Commission of a crime in concert with a gang member can create a strong inference that the defendant had the specific intent to further gang activities. (See People v. Morales, supra, 112 Cal.App.4th at p. 1198; People v. Villalobos (2006) 145 Cal.App.4th 310, 322; People v. Leon (2008) 161 Cal.App.4th 149, 163; People v. Romero (2006) 140 Cal.App.4th 15, 20; see also People v. Martinez (2008)158 Cal.App.4th 1324, 1332.) However, the mere fact of this association during the crime does not necessarily show the requisite specific intent. (See People v. Ramon (2009) 175 Cal.App.4th 843, 851-853; Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, 1078-1080.) All the circumstances may be examined to determine whether it can reasonably be inferred that the defendant committed the crime with a gang-related motivation. (See People v. Leon, supra, 161 Cal.App.4th at p. 163.)
The record shows that defendant, a Sidro gang member, committed the attempted murder, robbery, unlawful vehicular driving or taking, false imprisonment, and kidnapping offenses with another Sidro gang member (Mariscal). Additionally, a high-ranking, feared member of an organized crime family (Delgado) participated in the initial taking and some of the subsequent activity. The prosecution's gang expert testified that Sidro's primary criminal activities included narcotics transactions, robberies, and murders or attempted murders. One of the items taken during the robbery was a truck. The truck was thereafter driven to various locations, and Delgado participated in the driving of the truck. Defendant made statements indicating the truck was being "used." During the 24-hour period, numerous individuals were smoking methamphetamine. Delgado rented the motel room and provided the initial methamphetamine smoked at this location, and defendant later sent two individuals to the motel room who had more methamphetamine. After defendant shot Lomeli, defendant told Mariscal and Huerta that he had to shoot him because he saw Delgado's face.
In short, the evidence showed defendant's and Mariscal's membership in a gang that engaged in narcotics transactions and other criminal operations; continual joint activity by defendant, Mariscal, and Delgado; the use of the stolen truck in conjunction with their activities; and the ongoing use of methamphetamine by numerous persons coming into contact with them. From this evidence, the jury could reasonably infer that defendant and Mariscal were involved in the gang's illegal narcotics or other criminal activities; that Delgado was also participating in these activities; and that the truck was stolen to be used in the gang's criminal endeavors. The jury could find that defendant falsely imprisoned and kidnapped Lomeli with the intent to prevent him from reporting the truck stolen and interfering with the gang's free use of the vehicle in its operations.
Further, the prosecution's gang expert testified that a gang member gains respect by protecting persons connected with the gang or the gang's operations. Based on defendant's statement that he had to shoot Lomeli because he saw Delgado's face, the jury could infer that defendant committed the shooting with the intent to protect Delgado from being identified as a person involved with the Sidro gang's illegal activities and the intent that this conduct advance the Sidro gang's status in the eyes of Delgado and the organized crime family with which he was connected.
Thus, the jury could conclude that the offenses were committed for the benefit of the Sidro gang by facilitating their illegal operations and improving their standing in the gang world, and that defendant committed the offenses with the specific intent that his crimes would further the gang's criminal operations.
To support his challenge to the gang enhancement findings, Valadez asserts that the gang enhancement cannot be supported solely by gang membership, association with another gang member during the crime, or a gang expert's speculative opinion. We agree. But, as set forth above, the record contains evidence that supports the gang enhancement apart from the mere fact of Valadez's gang membership and commission of the crime with another gang member, and that provides a factual basis to support the expert's opinion.
As stated earlier, commission of a crime with another gang member can create a strong inference that the defendant had the requisite gang-related intent. (See People v. Morales, supra, 112 Cal.App.4th at p. 1198.) However, all the circumstances may be examined to determine whether the offense was gang motivated as opposed to conduct by gang members unrelated to the gang. (See ibid.)
Valadez also points out that the evidence reflects that the encounter with the victim was not planned; there were no gang confrontations, threats, or admissions associated with the incident; and the victim did not describe the incident as gang related. Although these factors can be relevant to determine whether the defendant had a gang motivation, they are not dispositive and they do not defeat the evidentiary showing otherwise presented in this case showing the defendant's gang motivation.
III. No Section 654 Multiple Punishment Violation
The trial court imposed sentence for the attempted murder, and consecutive sentences for kidnapping, false imprisonment, and robbery. Valadez asserts that his sentence for false imprisonment should have been stayed because the false imprisonment was incidental to the robbery, and likewise his sentence for kidnapping should have been stayed because the kidnapping was incidental to the attempted murder. In imposing the consecutive sentences, the trial court found the victim was falsely imprisoned in the motel room; he was then kidnapped and moved to many different locations; and he was ultimately shot "many miles away at the side of a dark road." The court concluded the crimes "took place over a very long period of time"; the defendant had time to reflect on the distinct acts; and the acts were not "part and parcel of one another."
Section 654, subdivision (a) prohibits multiple punishment for a single act or indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) When a defendant is convicted of two offenses that are part of an indivisible course of conduct, the sentence for one of the offenses must be stayed. (Id. at p. 592.) The purpose of section 654 is to insure that a defendant's punishment is commensurate with his or her culpability. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252.)
Whether a course of criminal conduct is divisible so as to allow multiple punishment under section 654 depends on whether the defendant had a separate objective for each offense. (People v. Britt (2004) 32 Cal.4th 944, 952.) If one offense is merely intended to facilitate commission of another offense, punishment for both offenses is not permissible. (People v. Latimer (1993) 5 Cal.4th 1203, 1216.) In contrast, if the defendant " 'entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Kwok, supra, 63 Cal.App.4th at p. 1257.)
When there is a temporal or spatial separation between offenses, giving the defendant time to reflect and renew his or her intent, the defendant's decision to continue a course of criminal conduct supports a finding that the defendant entertained multiple criminal objectives. (People v. Kwok, supra, 63 Cal.App.4th at pp. 1253-1257; People v. Surdi (1995) 35 Cal.App.4th 685, 689; People v. Andra (2007) 156 Cal.App.4th 638, 640.) This time-for-reflection principle may apply even when the multiple crimes share a common overall objective. (People v. Kwok, supra, 63 Cal.App.4th at pp. 1253-1257; see People v. Britt, supra, 32 Cal.4th at p. 952 [separate objectives may be supported by consecutive acts even with similar intent].) Similarly, an offense may "at some point... become so extreme [that the offense] can no longer be termed 'incidental' and must be considered to express a different and a more sinister goal than mere successful commission" of the other offense. (People v. Nguyen (1988) 204 Cal.App.3d 181, 191; People v. Saffle (1992) 4 Cal.App.4th 434, 439-440.)
On appeal we apply the substantial evidence test to review the court's finding that the defendant had separate objectives. (People v. Andra, supra, 156 Cal.App.4th at p. 640.) We review the evidence in the light most favorable to the court's determination, and presume in support of the court's conclusion the existence of every fact that could reasonably be deduced from the evidence. (Id. at pp. 640-641.)
The record supports the trial court's finding that Valadez had distinct objectives when he committed the false imprisonment and the robbery. To commit the robbery, Lomeli was threatened with a gun and his personal property was seized shortly after he arrived in the motel room. Although the false imprisonment facilitated commission of the robbery, the false imprisonment continued long after the initial taking of the property. After his property was taken, Lomeli was imprisoned the entire night in the bathroom at the motel room, unable to sleep because of fear for his safety. The next day, Valadez told him that if he tried to run away, he would be shot. He was again imprisoned the next day, including many hours at an apartment where he was provided little or no food and faced an uncertain fate.
The court could reasonably infer that the lengthy imprisonment, accompanied by the threat to shoot the victim and continuing long after the taking, was motivated by such objectives as keeping Lomeli in a state of ongoing fear, dissuading him from reporting the robbery, and (as suggested by Mariscal) ascertaining whether he was an undercover officer. (See People v. Nguyen, supra, 204 Cal.App.3d at pp. 192-193; People v. Saffle, supra, 4 Cal.App.4th at p. 440.) This supports the court's finding that the defendant entertained an objective for the false imprisonment distinct from the objective for the robbery.
Similarly, the record supports a finding of multiple objectives for the kidnapping and attempted murder. The kidnapping occurred in San Ysidro when Lomeli was moved out of the hotel room in the morning, continued throughout the entire day as he was transported to numerous locations, and ended a substantial distance from San Ysidro in the mountains of Alpine. During the kidnapping Lomeli was led to believe that he would get his truck back and, implicitly, that he would be released alive. He was required to place a beanie over his eyes during the kidnapping and was transported around town in this condition for a substantial period of time before he was shot. During the kidnapping, Valadez had a continual opportunity to reflect on his conduct, and he made the decision to end the lengthy restraint of Lomeli by shooting him.
This is not a case where the defendant grabbed, moved, and attempted to kill the victim in a relatively short span of time reflecting an indivisible transaction. Like the false imprisonment, the duration and multiple locales for the kidnapping support a finding that the kidnapping was not merely the means of facilitating commission of the attempted murder, but also had the distinct objective of prolonging the victim's discomfort and fear. Further, the long duration and changing locations of the kidnapping before the shooting supports that the defendant repeatedly renewed his intent to harm the victim and prevent reporting of the crimes, so as to support multiple punishment commensurate with his culpability. Given this showing, the fact that the offenses may have shared common acts and overall objectives does not require a finding of a single objective.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J.AARON, J.