Summary
In People v. White (2014) 230 Cal.App.4th 305, which involved a gang-related shooting by defendant White, we held that defendant Gales, the aider and abettor, "need not know of, or share, the perpetrator's specific intent to shoot at an inhabited dwelling, even when the perpetrator has such an intent."
Summary of this case from People v. KellumOpinion
B250069
10-03-2014
The PEOPLE, Plaintiff and Respondent, v. Marcus Trevelle WHITE et al., Defendants and Appellants.
James M. Crawford, Orange, under appointment by the Court of Appeal, for Defendant and Appellant, Marcus Trevelle White. Patricia J. Ulibarri, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant, Dimitri Devon Gales. Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
James M. Crawford, Orange, under appointment by the Court of Appeal, for Defendant and Appellant, Marcus Trevelle White.
Patricia J. Ulibarri, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant, Dimitri Devon Gales.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion
MANELLA, J.In the underlying action, juries found appellant Dimitri Devon Gales guilty of attempted voluntary manslaughter and shooting at an inhabited dwelling, and appellant Marcus Trevelle White guilty of possession of a firearm by a felon and shooting at an inhabited dwelling. Appellants contend their convictions must be reversed due to the erroneous admission of evidence, insufficiency of the evidence, and instructional error; in addition, they request that we independently review the transcript of an in camera hearing before the trial court, and that we correct an error in the determination of their custody credits. Respondent acknowledges an error in the custody credit determination, and further maintains that the trial court failed to impose certain mandatory fees.In the published portion of this opinion, we reject Gales's contention there is insufficient evidence to support his conviction for shooting at an inhabited dwelling (Pen.Code, § 246 ), concluding that an aider and abettor of that offense need not know of, or share, the perpetrator's specific intent to shoot at an inhabited dwelling, even when the perpetrator has such an intent. In the unpublished portions of the opinion, we reject appellants' remaining contentions regarding the admission of evidence, the sufficiency of the evidence, and instructional error, and upon an independent review of the in camera hearing, ascertain no improperly withheld evidence. We nonetheless conclude appellants' sentences contain errors, and modify the judgments to correct them.
All further statutory references are to the Penal Code, unless otherwise indicated.
RELEVANT PROCEDURAL HISTORY
On August 24, 2012, a four-count amended information was filed, charging appellants in counts 1 and 2 with the attempted willful, deliberate, and premeditated murders of Luiz Diaz and Jason Ayala ( §§ 187, subd. (a), 664 ), and in count 3 with shooting at an inhabited dwelling (§ 246 .). In count 4, the amended information charged appellant White with possession of a firearm by a felon (former § 12021, subd. (a)(1) ). Each count contained allegations that appellants committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b) ), and that appellant White had suffered a prior conviction, for purposes of the “Three Strikes” law ( §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d) ). In addition, accompanying counts 1 through 3 were gun use allegations ( §§ 12022.5, 12022.53, subds. (b), (c), (d) ). Appellants pleaded not guilty and denied the special allegations.
The trial was conducted before two juries, one for each appellant. Gales's jury found him guilty as charged in count 3 (shooting at an inhabited dwelling). Regarding counts 1 and 2, his jury found him guilty only of attempted voluntary manslaughter relating to Diaz, as a lesser included offense of count 1. Gales's jury also found that his crimes were committed for the benefit of a criminal street gang, and that in connection with the offense of attempted voluntary manslaughter, a principal personally discharged a firearm causing great bodily injury. White's jury found him guilty as charged in count 3 (shooting at an inhabited dwelling) and count 4 (possession of a firearm by a felon), and not guilty with respect to the remaining counts. White's jury further found that he personally used a firearm in committing the offense charged in count 3.During the trial, White waived trial by jury on the prior conviction allegation, and admitted the prior conviction when he testified. Following the juries' verdicts, the trial court permitted the prosecutor to file a second amended information alleging that White had suffered a prior conviction for a serious felony (§ 667, subd. (a)(1) ). After White denied that allegation, the court found the prior felony conviction allegations against White to be true. The court sentenced Gales to a total term of 18 years to life, and White to a total term of 20 years four months. These appeals followed. FACTS
In permitting the filing of the second amended information, the trial court determined that White had admitted the prior conviction when he testified at trial, and that White later stipulated to the existence of the conviction. On appeal, White has not challenged the filing of the second amended information.
A. Prosecution Evidence
1. Events Surrounding Shooting
Luis Diaz testified that in December 2011, he belonged to a gang called the Compton T–Flats, and his nickname was “Dopey.” His friend, Jason Ayala, was a member of a different gang known as Primera Flats. According to Diaz, the Tree Top Piru gang was a rival gang.
Diaz further testified that on December 8, 2011, at approximately 2:26 p.m., he and Jason Ayala were standing in front of an apartment building on Elm Street in Compton. Appellants walked up to Diaz and Ayala, and Gales asked Diaz, “Are you Dopey from TF?” After Diaz replied in the affirmative, White pulled out a gun, pointed it at Diaz, and asked, “What that Tree Top life be like?” As White began shooting, Diaz and Ayala ran down the driveway adjoining the apartment building. Diaz then jumped over a wall bordering the driveway. As soon as Ayala rejoined him, Ayala told Diaz that Diaz had been shot. Diaz discovered he was bleeding from a wound in his right arm. When Los Angeles County Sheriff's Department deputy sheriffs arrived, Diaz described the assailants to them.
Alice R. Corona and her daughter testified that on December 8, 2011, they were driving out of the driveway of an apartment building on Elm when they heard a shout. Down the street they saw two Black men chasing two Hispanic men. They also heard shooting. Neither Alice Corona nor her daughter identified appellants as the two Black men, but the former stated that she saw one of the Black men in a “pointing” stance, and later stated that the taller of the two Black men held a gun. Evidence was presented that Gales is six feet, two inches tall, and White is five feet eight inches tall.Jason Ayala did not testify at trial. Following an Evidence Code section 402 hearing, the trial court permitted Los Angeles County Sheriff's Department Deputy Sheriff Edgar Solano to testify regarding Ayala's statements shortly after the shooting. According to Solano, on December 8, 2011, he and his partner responded to a call regarding that incident. They were flagged down at the scene by Ayala who, appearing nervous and very excited, told the officers, “they shot my friend.” Behind Ayala, Deputy Sheriff Solano saw Diaz, lying on the ground, bleeding profusely from an apparent gunshot wound. Ayala stated that he and Diaz were approached by two Black men, one of whom asked Diaz, “Are you Dopey from T–Flats?” Ayala heard three or four gunshots. In describing the two men, Ayala said the shooter wore a white T-shirt.
Los Angeles County Sheriff's Department Deputy Sheriff John Orozco testified that on December 8, 2011, while on patrol, he received radio communications regarding the shooting. As he searched the area for suspects, a security guard flagged him down, and reported seeing two Black men running in the direction of a shopping center. At the shopping center, Orozco saw appellants and followed them. When they neared a store's entrance, Orozco tried to detain them at gunpoint. As he approached White and Gales, they fled in different directions. Orozco chased White, who threw a handgun onto the roof of a building, stopped, and put his hands up. Los Angeles County Sheriff's Department Deputy Sheriff Allison Holland testified that she and her partner responded to Deputy Sheriff Orozco's calls for assistance. They soon arrested Gales near the shopping center.
A video recording of the events at the shopping center from a security camera was played for the jury. In addition, Los Angeles County Sheriff's Department Deputy Sheriff Braulio De La Torre testified that after Orozco requested assistance, he drove to the shopping center, where he saw White throw the gun onto the rooftop. Deputy Sheriff De La Torre later retrieved the gun.
Deputy Sheriff Solano testified that approximately five minutes after broadcasting Ayala's description of the assailants, he drove Ayala to the shopping center area for field identification showups. Ayala viewed White and Gales and identified them as the two men who had approached Diaz. According to Solano, White was wearing a white T-shirt.2. Subsequent Investigation
Diaz was treated for a gunshot wound to his right arm. When presented with photographic six-pack lineups, Diaz identified White as an assailant, stating, “That's him,” and “Looks like the one that shot.”
Although Diaz testified at trial that Gales was one of the two men who approached him, Diaz did not identify Gales after the shooting when presented with a photographic six-pack lineup containing Gales's photo. Diaz then told the investigating officers, “I was too busy looking at the other guy who pulled the gun on me.”
Altagracia Venegas testified that she owned the apartment building where the shooting took place, as well as a smaller building at the end of the apartment building's driveway. Luis Badilloa rented an apartment in the smaller building. On December 8, 2011, after the shooting, Venegas visited Badilloa and saw bullet holes in the wall of Badilloa's apartment. According to Venegas, the holes were not present before the shooting.
Investigating officers found three bullet impact points in the exterior wall of Badilloa's apartment, and recovered three bullets. They later determined that the three bullets were fired from the handgun retrieved from the roof of the shopping center. In addition, gunshot residue was found on both appellants.
Los Angeles County Sheriff's Department Detective Richard Sanchez and Deputy Sheriff Nina Gonzales interviewed White. White initially asserted that he was not present at the shooting, and that no gun residue would be detected on him. According to White, he was walking alone when someone gave him a gun and told him to hold it. White also said that a “Tree Top” had threatened to beat him up unless he performed a shooting.
Later in the interview, White stated that while he and someone else were walking, two “Mexicans” confronted them and said, “Fuck niggas.” White's companion handed him a gun, stating, “Here, do your dirt.” Rather than shooting at the “Mexicans,” White permitted them to flee, and fired three shots without hitting anyone. White and his companion then ran to the shopping center. White's companion held the gun, but gave it back to White when the police appeared. After an officer directed White to “[g]et down,” White threw the gun away.
Near the end of the interview, White provided another account of the shooting. According to White, after his companion fired two shots at the “Mexicans,” he handed the gun to White and said, “Here, you do it.” When the “Mexicans” had left, White fired a single shot “the other way” so that he could say, “At least I did the shooting.” 3. Gang Evidence
The jury heard an audio recording of the interview, and a transcript of the interview was admitted into evidence.
Los Angeles County Sheriff's Department Deputy Sheriff Eric Gomez, a gang expert, testified that the Tree Top Piru street gang claims a territory within Compton. The Tree Top Piru gang's primary activities include murder, assault with a deadly weapon, robbery, and the sale of narcotics. One of their most important rivals is a Hispanic gang known as the Compton Varrio Tortilla Flats, whose claimed territory overlaps areas of Compton, including the location of the underlying offenses.
Gomez referred to the gang as the “Tree Top Piru Blood” gang and the “Tree Top Piru” gang. For simplicity, we refer to it using the latter term.
According to Deputy Sheriff Gomez, the Tree Top Piru gang has 122 documented members, including 95 primary members, that is, individuals who have been “jumped into” the gang, and for whom it is “family.” Members earn respect by “putting in work,” which involves committing violent acts. In 2010, Gales was arrested for “gang loitering,” and admitted he was a member of the Tree Top Piru gang. White also had told a detective that he belonged to the gang. Gomez further opined that the crimes charged against appellants were committed for the benefit of that criminal street gang.
B. Defense Evidence
1. White's Evidence
White, who testified on his own behalf, stated that he had a prior felony conviction for robbery. According to White, prior to the date of the shooting, the Tree Top Piru gang repeatedly pressured him to join that gang, but he refused. Shortly before the shooting, a gang member told White the harassment would stop if he committed a crime for the gang. White said he did not want to do so.
White also stipulated to the existence of the conviction.
White further testified that on the date of the shooting, he encountered Gales, whom he knew to be a member of the Tree Top Piru gang. As they walked together, Diaz and another Hispanic man approached and asked, “Where are you from?” When White and Gales tried to walk away, White heard the men say, “T–Flat gang. Fuck niggers.” White saw Diaz reach toward his waistband and withdraw something black.White further testified that he and Gales began to run away. As they did so, White heard gunshots. Gales pulled out a gun, and White heard more gunshots. When White saw Gales's gun, he stopped running. Gales handed the gun to White and said, “Go get them.” White saw Diaz and his companion running away. After Diaz ran down a driveway and around a corner, White fired the gun three times at the wall of a nearby house. White fired the gun in the hope that the Tree Top Pirus would stop asking him to commit crimes, and without an intent to injure anyone.
White further testified that he and Gales ran to the shopping center, where he threw away the gun before his arrest. During his interview with Detective Sanchez and Deputy Sheriff Gonzales, he initially lied regarding the shooting because he was afraid to be labeled as a snitch. Later, after the preliminary hearing, he was placed in a holding cell with Gales, who accused him of being a snitch and punched him before deputy sheriffs intervened.
2. Gales's Evidence
Gales testified that he was an “inactive” member of the Tree Top Piru gang, and that White also belonged to that gang. According to Gales, White earned income by selling crack from a location known as the “Sugar Shack.”
Gales further testified that on December 8, 2011, he was walking to a location to play basketball when he met White. As they walked together, Gales saw Diaz and Ayala, and heard Diaz yell, “T–Flats. Fuck Niggas.” When gunshots rang out, Gales began to run, leaving White. Gales did not see White fire a gun, and he did not fire a gun himself or chase Diaz and Ayala.
Gales further testified that he ran directly to a park, where he stopped for about a minute. After Gales left the park, he saw White in a shopping center and talked to him regarding the incident. When Deputy Sheriff Orozco directed them to stop, Gales continued to walk because he was in shock. When he saw Deputy Sheriff Holland's patrol car, he decided to walk to it. Later, after the preliminary hearing, Gales punched White while they were in the holding cell because White had lied regarding Gales's role in the shooting.
C. Rebuttal
Deputy Sheriff Gomez testified that the Sugar Shack was a location where illegal narcotics sales occurred and Tree Top Piru gang members congregated. In addition, Michael Contreras, White's former parole officer, testified that White's records showed that he had claimed gang membership. DISCUSSION
Appellants contend that the trial court erred in admitting Ayala's remarks and field identifications following the shooting, that there is insufficient evidence to support Gales's conviction for shooting at an inhabited dwelling and the gang enhancement regarding that conviction, that there was instructional error, that the sentence imposed on White's conviction for possession of a firearm by a felon contravened section 654 , and that the trial court incorrectly determined their custody credits. Appellants also ask us to review the transcript of an in camera hearing conducted by the trial court. Respondent contends the court failed to impose certain mandatory assessments. As explained below, our independent review of the in camera hearing has revealed no potential issues or errors, and we otherwise discern no error, with the exception of certain sentencing defects that we may properly correct without a remand for resentencing.
Appellants have joined in each other's contentions, to the extent they are applicable to both appellants.
A. Admission of Ayala's Remarks and Field Identifications
See footnote, ante, page 305.
B. Sufficiency of the Evidence
Gales contends there is insufficient evidence to support his conviction for shooting at an inhabited dwelling and the accompanying gang enhancement. For the reasons set forth below, we reject his contention. 1. Shooting at an Inhabited Dwelling
“ ‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23, 864 P.2d 103] .)
We begin with Gales's challenge to his conviction for shooting at an inhabited dwelling. Section 246 provides that “[a]ny person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house [or] occupied building ... is guilty of a felony....” Gales's challenge hinges on the fact that although White testified that he intentionally shot three times at the exterior wall of a house, Gales's own jury did not find that Gales personally used a gun in the commission of the crime of shooting at an inhabited dwelling. Gales thus maintains that his liability for that crime must rely on a determination that he was an aider and abettor.
The crux of Gales's contention is that there is no evidence that he possessed the state of mind required of an aider and abettor for shooting at an inhabited dwelling. Gales observes that according to White's testimony, when Gales handed White the gun and said, “Go get them,” White decided to fire three shots at a neighboring house, rather than try to injure the fleeing Diaz. Gales argues there is no evidence that he shared “White's last minute decision to shoot at an inhabited building.” He further argues that to be an aider and abettor, he “had to know that White intended to shoot the building.” Gales's arguments thus rely on a key premise, namely, that to aid and abet White's crime, Gales had to know of, and share, White's particular intent, that is, to shoot at the building. As explained below, because that premise is false, Gales's arguments fail.
Generally, “[t]here are two kinds of criminal intent: general intent and specific intent. ‘ “When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.” [Citation.] General criminal intent thus requires no further mental state beyond willing commission of the act proscribed by law.’ [Citation.]” (People v. Keovilayphone (2005) 132 Cal.App.4th 491, 496 .)
Shooting at an inhabited dwelling, as established by section 246 , is a general intent crime. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123 [77 Cal.Rptr.2d 428, 959 P.2d 735] ( Mendoza ); People v. Hernandez (2010) 181 Cal.App.4th 1494, 1500 ( Hernandez ); People v. Overman (2005) 126 Cal.App.4th 1344, 1356 ( Overman ) .) As explained in Overman, “section 246 is not limited to the act of shooting directly ‘at’ an inhabited or occupied target. Rather, the act of shooting ‘at’ a proscribed target is also committed when the defendant shoots in such close proximity to the target that he shows a conscious indifference to the probable consequence that one or more bullets will strike the target or persons in or around it.” (Overman, at p. 1356, 24 Cal.Rptr.3d 798 .) Thus, “[s]ection 246 does not require a specific intent ‘ “to do a further act or achieve a future consequence” ’ beyond the proscribed act of shooting ‘at’ an occupied building or other proscribed target. [Citation.] In other words, the statute does not require a specific intent to achieve a particular result (e.g., strike an inhabited or occupied target, kill or injure). [Citation.] Instead, the statute only requires a shooting under facts or circumstances that indicate a conscious disregard for the probability that one of these results will occur.” (Id. at p. 1357, 24 Cal.Rptr.3d 798 .)
A defendant may be liable for shooting at an inhabited dwelling as an aider and abettor. (Mendoza, supra, 18 Cal.4th at p. 1123, 77 Cal.Rptr.2d 428, 959 P.2d 735 ; In re Jose D. (1990) 219 Cal.App.3d 582, 585 .) Generally, to be convicted under an aiding and abetting theory, a defendant must “act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citations.]” (People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal.Rptr. 60, 674 P.2d 1318] , italics omitted.) Thus, “[a ]wareness of the direct perpetrator's purpose is critical for the alleged aider and abettor to be culpable for that perpetrator's act.” (Mendoza, supra , 18 Cal.4th at p. 1129, 77 Cal.Rptr.2d 428, 959 P.2d 735 .) Furthermore, to be culpable, an aider and abettor must have a specific intent that encompasses more than his or her own conduct: “an aider and abettor must intend not only the act of encouraging and facilitating but also the additional criminal act the perpetrator commits.” (Ibid. )
Aiding and abetting liability takes two forms. (People v. McCoy (2001) 25 Cal.4th 1111, 1117 [108 Cal.Rptr.2d 188, 24 P.3d 1210] (McCoy ).) “First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also ‘for any other offense that was a “natural and probable consequence” of the crime aided and abetted.’ [Citation.] Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.” (Ibid. ) Here, the trial court instructed Gales's jury only regarding the first form of aider and abettor liability. We therefore confine our discussion to the state of mind required for this form of liability. (Ibid. )
“[O]utside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator.” (McCoy, supra , 25 Cal.4th at p. 1118, 108 Cal.Rptr.2d 188, 24 P.3d 1210 .) If the offense charged is a “ ‘ “specific intent” ’ ” crime, the accomplice must share the perpetrator's specific intent. (Ibid. ) In contrast, if the charged offense is a general intent crime, the aider and abettor need only knowingly and intentionally facilitate the direct perpetrator's commission of the crime, without intending some additional result or consequence not required for the crime. (See Hernandez, supra, 181 Cal.App.4th at pp. 1498–1502, 105 Cal.Rptr.3d 597 ; People v.
Keovilayphone, supra, 132 Cal.App.4th at p. 496, 33 Cal.Rptr.3d 740 .) As noted in Keovilayphone, the fact that an aider and abettor must harbor a specific intent to aid the direct perpetrator of general intent crime “does not transform the underlying offense into a specific intent crime.” (People v. Keovilayphone, at p. 497, 33 Cal.Rptr.3d 740 .)
An instructive application of the principle regarding general intent crimes is found in Hernandez . There, a gang member drove a car while a fellow gang member in the car fired a gun at three people. (Hernandez, supra, 181 Cal.App.4th at p.
1498, 105 Cal.Rptr.3d 597 .) The driver was charged with discharging a firearm at a person from a motor vehicle (former § 12034, subd. (c) ), and tried as an aider and abettor. (Hernandez, at pp. 1498–1499, 105 Cal.Rptr.3d 597 .) At trial, the jury was instructed that the offense, as a general intent crime, was committed by the passenger if he willfully and maliciously fired the gun and shot it at someone not in the car; in addition, the jury received instructions on the driver's potential liability as an aider and abettor. (Ibid. )
Following the driver's conviction, he contended that to show his culpability as an aider and abettor, the prosecution was obliged to prove that he aided his passenger with the intent to shoot at another person, but the instructions improperly permitted the jury to convict him without finding that he possessed that intent. (Hernandez, supra , 181 Cal.App.4th at p. 1499, 105 Cal.Rptr.3d 597 .) The crux of his argument was that the instructions allowed the jury to determine that he was an aider and abettor without finding (1) that the passenger intended to shoot at someone and (2) that the driver shared this intent. (Ibid. ) In rejecting the contention, the appellate court reasoned that the charged offense, as a general intent crime, required only the willful firing of a gun that manifested a conscious indifference to the probability that the bullets would fly toward or near a person; no specific intent to target or hit a person was necessary. (Id. at pp. 1500–1501, 105 Cal.Rptr.3d 597 .) Hence, the driver could be convicted as an aider and abettor, regardless of whether the passenger intended to shoot someone or whether the driver shared that intent. (Id. at pp. 1501–1502, 105 Cal.Rptr.3d 597 .)
In view of Hernandez, we reject the key premise of Gales's contention. Although White may have had the specific intent to fire the gun at the building, that particular intent was not, in fact, required for White's commission of the crime: as explained above, White's state of mind was sufficient for the crime, provided that he intentionally fired the gun “in such close proximity to the target that he show[ed] a conscious indifference to the probable consequence that one or more bullets w[ould] strike the target.” (Overman, supra , 126 Cal.App.4th at p. 1356, 24 Cal.Rptr.3d 798 .) For that reason, Gales's status as an aider and abettor was not dependent on whether he knew of, or shared, White's particular intent to shoot at the building. Rather, under the circumstances presented here, to establish Gales's status as an aider and abettor, it was sufficient to demonstrate that Gales knowingly and intentionally encouraged White to shoot the gun under circumstances showing that Gales—like White—was consciously indifferent to the probable consequence that the bullets would strike the building.
There is ample evidence that Gales acted with the state of mind required for an aider and abettor. The existence of the requisite knowledge may be established by circumstantial evidence. (People v. Long (1970) 7 Cal.App.3d 586, 591, 86 Cal.Rptr. 590 .) Similarly, the existence of the requisite intent may be shown by “an act which has the effect of giving aid and encouragement, and which is done with knowledge of the criminal purpose of the [perpetrator] aided.” (People v. Beeman, supra , 35 Cal.3d at p. 559, 199 Cal.Rptr. 60, 674 P.2d 1318 .)
Here, Diaz testified that he fled from Gales and White down a driveway. According to Venegas, the driveway terminated at the apartment building inhabited by Badilloa. Alice Corona's daughter stated that the taller of the two Black men she saw—that is, Gales—held a gun. As Gales acknowledges, White testified that Gales handed him a gun and urged him to shoot Diaz, who was running down the driveway; in addition, White testified that he fired three times at a nearby house. Evidence was presented that three bullet impacts were found in the exterior of Badilloa's apartment building. In view of this evidence, Gales's jury could reasonably conclude that Badilloa's apartment building was visible to Gales when he urged White to shoot Diaz, who was running toward that building. Accordingly, the evidence described above was sufficient to establish that Gales aided and abetted shooting at an inhabited dwelling.
Gales suggests that no reliance may be placed on White's testimony regarding the circumstances surrounding the shooting. However, under the principles governing review for the existence of substantial evidence, the testimony of a witness is ordinarily sufficient to uphold a judgment “even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citations.]” (In re Frederick G. (1979) 96 Cal.App.3d 353, 366 .) The circumstances in which an appellate court may properly decline to credit testimony are exceptional and rare. (People v. Ennis (2010) 190 Cal.App.4th 721, 728–732 .) “ ‘Testimony may be rejected only when it is inherently improbable or incredible, i.e., “ ‘unbelievable per se,’ ” physically impossible or “ ‘wholly unacceptable to reasonable minds.’ ” ' [Citation.]” (Id. at p. 729, 118 Cal.Rptr.3d 270 , quoting Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065 .) Those circumstances are not present here.
The decisions upon which Gales relies are distinguishable. In Mitchell v. Prunty (9th Cir.1997) 107 F.3d 1337, 1338 , overruled on another ground in Santamaria v. Horsley (9th Cir.1998) 133 F.3d 1242, 1248 , the defendant, a gang member, was involved in a fistfight with members of a rival gang. Later, the defendant was in a car occupied by fellow gang members. (Mitchell v. Prunty, supra, 107 F.3d at p. 1338 .) Someone in the car fired a gun, injuring one of the defendant's assailants during the fistfight. (Id. at p. 1339 .) When hostilities continued, the injured rival gang member suffered another gunshot injury, and a car containing the defendant ran over and killed him. (Ibid . ) The Ninth Circuit held there was insufficient evidence to support the defendant's conviction for murder as an aider and abettor, as the jury found that the defendant had not driven the car responsible for the gang member's death, and there was otherwise no evidence that he encouraged or assisted either the shootings or the fatal car collision. (Id. at pp. 1340–1343 .) Here, in contrast, there was evidence that Gales handed White a gun and urged him to shoot Diaz, who was running toward Badilloa's apartment building.
In Juan H. v. Allen (9th Cir.2005) 408 F.3d 1262, 1266–1267 , a juvenile and his brother, both gang members, lived in a trailer park. After two rival gang members fired guns at their home, the juvenile's brother fatally shot one and wounded the other while the juvenile was present. (Ibid. ) The juvenile made no gestures, and offered no assistance or encouragement to his brother. (Ibid. ) The Ninth Circuit concluded that the juvenile's murder conviction failed for want of evidence that he aided and abetted his brother's crimes. Here, in contrast, it was Gales himself who handed White the gun and directed him to shoot. In sum, there is sufficient evidence that Gales possessed the state of mind required of an aider and abettor for shooting at an inhabited dwelling
2. Gang Enhancement
Gales contends the gang enhancement regarding his conviction for shooting at an inhabited dwelling fails for want of sufficient evidence.Section 186.22, subdivision (b)(1) , provides a sentence enhancement for a defendant 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....” Gales's challenge to the gang enhancement relies on the same argument as his challenge to the underlying conviction: he maintains there is insufficient evidence that he possessed the specific intent required for the gang enhancement because “the prosecution failed to prove that [he] knew that White would shoot at a[n] inhabited building.”
The defect in Gales's challenge to the underlying conviction is also fatal to his challenge to the gang enhancement. Generally, the “[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 view of the testimony from the gang expert and Gales himself, there is sufficient evidence that Gales and White belonged to the Tree Top Piru gang. According to Diaz, Gales initiated the incident by asking Diaz, “Are you Dopey from TF?” Furthermore, for the reasons discussed above (see Discussion, pt. B.1., ante ) the evidence at trial showed that Gales acted in concert with White, as it established that Gales aided and abetted White's offense of shooting at an inhabited dwelling. Accordingly, there is sufficient evidence to support the gang enhancement.
See footnote , ante ., page 305.
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DISPOSITION
The judgments are modified to reflect that each appellant is entitled to custody credits totaling 642 days, and is subject to court operations assessments totaling $80 (§ 1465.8, subd. (a) ) and court construction fees totaling $60 (Gov.Code, § 70373 ). The trial court is directed to correct the sentencing minute order for each appellant to reflect the modifications stated above, to prepare amended abstracts of judgment reflecting those modifications, and to forward the amended abstracts to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.