P. v. Centeno

Filed 3/2/06 P. v. Centeno CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellants Jose Guadalupe Centeno (Centeno) and Heriberto Arevalo (Arevalo) were convicted by jury of the first degree murder of Eric Robles (Pen. Code, §§ 187, subd. (a), 189; count 1)^[1] and the attempted murder of Julio Espinoza and Michael Rocha. (§§ 187, subd. (a), 664; counts 2 and 3.) They were also found guilty of shooting at an occupied motor vehicle (§ 246; count 4).

As to counts 1-3, the jury found true the allegations that Arevalo personally and intentionally discharged a firearm causing great bodily injury and/or death (§ 12022.53, subds. (b)-(d)), and that Centeno was a principal who personally and intentionally discharged a firearm. (§ 12022.53, subds. (b)-(e)(1).) The jury found that the offenses were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1), (4) & (5.)

Arevalo was sentenced to a total term of 122 years and 8 months to life in state prison. Centeno received a sentence of 109 years and 4 months to life. Appellants challenge the sufficiency of the evidence, claim instructional and evidentiary error and argue that their sentences constitute cruel and unusual punishment. We affirm with directions to amend the abstracts of judgment.

FACTS

The convictions arose from a drive-by shooting involving rival gangs. Appellants Centeno and Arevalo are members of the Colonia Chiques gang and the victims belonged to the Barry Street gang. On the night of the shooting, Centeno was driving a dark blue Mazda with tinted windows. His passenger, Arevalo, shot three members of the Barry Street gang, killing one man and injuring two others.^[2]

Two eyewitnesses were in a green Acura parked behind the shooter's car. Both individuals, Gilbert Carrillo and Ivan Reyes, testified under a grant of immunity. Gilbert identified both appellants as being in the car from which the shots were fired. Only Ivan Reyes identified Centeno as the driver and Arevalo as the shooter.

Day of Shooting

Neither eyewitness was a member of the Colonia Chiques gang. However, Gilbert Carrillo's cousins, Abel and Eddy Lemos (the Lemos brothers) were active members. Ivan Reyes had peripheral contact because he socialized with the gang members. On July 6, 2002, the day of the shooting, Ivan visited a trailer park where he saw appellants Arevalo and Centeno. Arevalo opened the hood of a dark blue Mazda with tinted windows and removed a box. Inside was a gun wrapped in a blue bandana. Arevalo asked Ivan if he liked the gun, then returned it to the box and placed it under the hood.

1) Gilbert's Green Acura

Ivan attended a barbeque at "Grandma's" house, where Ivan saw a cousin, Abel Lemos. Ivan and Abel left the party and went to Abel's house. There, they met with witness Gilbert Carrillo. Ivan, Gilbert and the two Lemos brothers left the house in a green Acura to visit a friend in Camarillo. Gilbert drove and Ivan sat in the front passenger seat.^[3] The two Lemos brothers sat in the back seat.

2) Centeno's Blue Mazda

Appellant Centeno was driving a dark blue Mazda with tinted windows. Arevalo was in the front passenger seat. They pulled up to the Acura and, after some conversation, Centeno decided to follow them to Camarillo. Gilbert glanced into Centeno's car and saw a gun, wrapped in a blue bandana, in Arevalo's lap. The two cars drove to Camarillo together, but Gilbert lost sight of Centeno after they left the freeway. Minutes later, Centeno reappeared. Gilbert pulled up next to Centeno who said he had recognized someone from Camarillo that he had seen while in custody at juvenile hall. Ivan told Gilbert to follow. Ivan anticipated a fight and thought he and his passengers would be "backing up" Centeno and Arevalo.

3) Victims' Blue Cadillac

Both cars drove to Raemare Street, where they saw a blue Cadillac stopped in the center of the street, with its engine running. Miguel Rocha was in the driver's seat and Eric Robles was his passenger. Victim Julio Espinoza (the individual Centeno had recognized), was walking around behind the car, towards the driver's side. All were members of the Barry Street gang. Although the parties make reference to certain exhibits indicating the cars' location, this information has not been included in the record on appeal.

The record supports the positioning of the cars as follows: Centeno (blue Mazda) stopped adjacent to the Cadillac and Gilbert (green Acura) parked 15 to 20 yards behind Centeno. It appears that the Cadillac and Mazda were pointed in opposite directions, with the passenger sides of the cars adjacent to each other.

Julio, standing near the Cadillac, heard someone issue a gang threat, "Where are you from?" He saw someone standing behind the passenger door of the other car, holding a black gun. The man began firing over the hood at Julio and his friends. Miguel began to get out of the car and saw someone aiming a black firearm. He heard gunshots and jumped back into the Cadillac. Miguel and Julio sustained multiple gunshot wounds and Eric was killed.

From his position behind the Mazda, Gilbert saw Centeno speak to someone standing outside the Cadillac, then saw Centeno's passenger lean out of the passenger side window, holding a black firearm, and fire several shots at the Cadillac. Gilbert was unable to identify the shooter. He identified Centeno from a police photograph, but knew him only as "Cheche."

Ivan identified the shooter as Arevalo and the driver as Centeno. He saw Arevalo get out of the passenger side of Centeno's car, lean over the windshield and fire eight or nine shots. Other witness in the neighborhood saw the shooter, standing at the passenger side of a dark blue car, positioned over the roof.

Gilbert and Centeno drove away from the scene. Miguel tried to flee, but the Cadillac soon came to a stop due to a flat tire. Gilbert received a call on his cell phone from Aisha Nadal, the friend he had intended to visit in Camarillo. They drove to her house and she was standing outside when Gilbert arrived. He told her they could not stay and drove towards Oxnard.

Green Acura Stopped by Sheriffs

Deputy Mano and his partner were on patrol when they heard a broadcast regarding shots fired on Raemare Street. A black Acura was referred to as a possible suspect vehicle. The deputies drove to a nearby intersection and saw a dark Acura, with four people inside, turn into the intersection. The occupants (Gilbert, Ivan and the Lemos brothers) were arrested. Officers searched the Acura, but did not recover a firearm. The suspects' hands were covered with paper to protect any gunshot residue. Only Abel Lemos tested positive for gunshot residue. Sheriffs later recovered the Cadillac, ten shell casings and five bullets.

Investigation

Gilbert originally told officers he was at a movie on the night of the shooting, but later admitted lying. He was shown some photographs, including one of Arevalo. Gilbert said the photo of Arevalo looked like the shooter because he recognized the eyebrows and crooked teeth. He did not know the shooter's name.

Ivan was also arrested. Detectives interviewed Jorge Reyes, Ivan's brother, who had learned of Ivan's arrest and wished to speak with him. Jorge admitted he had been active in Colonia Chiques, but said he left gang activity due to a gunshot wound. He denied that Ivan was a gang member. Jorge stated that, on the night of the shooting, Centeno came to the house looking for Ivan, who was not at home. Centeno used their phone. Jorge overheard Centeno saying that he was unable to use his (Centeno's) gun because someone had borrowed it and there were no bullets left. Centeno returned to the house the following day, still looking for Ivan. The detectives agreed to allow Jorge to speak with Ivan and arranged for the conversation to be surreptitiously recorded.

Tape-Recorded Conversation

Ivan told Jorge that "Cerrillo" (Arevalo's moniker) was the shooter and "Cheche" (Centeno's moniker) was the driver. Ivan said he and his friends had intended to go to a party in Camarillo and appellants "unloaded" in the other car without ever telling him. He did not know that they had a gun. Ivan and Gilbert sat in the Acura during the shooting. Ivan told Jorge the detectives had shown him photographs, but did not know who the people were. He said he had told the detectives that "Cheche" was the driver, but did not know his real name. Jorge encouraged Ivan to "[t]ell 'em what happened" if he wanted to get out. Ivan was concerned about "how he would look." Jorge told him not to worry about how he would look; that their family would leave Oxnard.

Search of Appellants' Homes

Approximately two weeks later, a search warrant was executed on Centeno's home and he was arrested. Officers recovered ammunition as well as documents and photographs indicating gang affiliation. When Arevalo was arrested and his home searched, the officers recovered a Dallas Cowboys T-shirt and a memorial T-shirt, worn at the funeral of a deceased gang member. Also found was a day-planner with gang graffiti, belonging to Arevalo's girlfriend. Officers found photographs of individuals displaying gang hand gestures, items with the insignia "Colonia," and newspaper articles concerning gang activity. They recovered a blue bandana from Arevalo's person.

Officers spoke to Arevalo's girlfriend, Linda Sanchez, who resided at the house. She acknowledged that Arevalo "gangbanged." On the day of the shooting, he attended a barbeque and swimming party. Someone picked him up in a silver car that afternoon and he returned at dusk. Sometime during that weekend Sanchez drove Arevalo to a trailer park. He had a blue bandana with him that weekend. At trial, Sanchez testified that she did not feel Arevalo was a gang member, did not know whether he had a blue bandana and did not remember much about the weekend of July 4th, 2002.

Arevalo's Statement

After his arrest, Arevalo waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 and spoke to Detective Kelley. The interview was tape recorded. Arevalo told Kelley that he was never officially "jumped in," but hung around with Colonia gang members and had Colonia gang tattoos.^[4] He knew that Colonia gang members were involved in the shooting and that someone had died. Arevalo read about the shooting in a newspaper and cut out the article.

Arevalo said he was at a barbeque at the home of a woman called "Grandma" on the day of the shooting. His girlfriend dropped him off nearby in the early afternoon and he stayed until about 7:00 p.m. He called his girlfriend and she drove him home. Arevalo denied knowing appellant Centeno or being in the area where the shooting occurred. He said he may have seen Centeno but did not know him.

Expert Testimony Detective Kelley testified that he had personally seen appellants together. The People also offered into evidence a traffic ticket issued to Centeno on June 30, 2002, while he was driving a dark blue Mazda, license number 4BBJ773. Arevalo was present in the car when Centeno received the ticket. Police were unable to locate the Mazda in Ventura County, but two months later recovered it in Tecate, Mexico. Centeno's sister was in the car, and a search revealed a photograph album which included pictures of Centeno and Arevalo making gang hand gestures.

A gang expert testified that investigators consider several factors to determine whether an individual is a gang member. This includes information on field interview cards, tattoos, arrests and association with known gang members. Colonia Chiques gang members often wear logos related to the Dallas Cowboys. They remove the "W" so the name reads "CO BOYS" to stand for "Colonia Boys." Colonia gang members often wear blue and gray jackets and shirts with the Dallas Cowboys logo as well as blue bandanas.

Gang members command respect from members of other gangs by committing violent acts. "Ratting" on a member of one's own gang is an extreme form of disrespect and can result in assault or murder. Gang members will commonly assault members of rival gangs who enter their territory. They will use hand gestures to challenge other individuals. A gang that travels into another gang's territory to commit crimes might do so to frighten the rival gang and thus increase its own status. The gang expert considered both appellants to be Colonia Chiques gang members and testified the shooting was committed for the benefit of the gang.

DISCUSSION

Accomplice as a Matter of Law

Appellants join in each other's arguments; thus we address them together. They contend that their convictions cannot stand because a conviction may not be based solely on the uncorroborated testimony of an accomplice. Appellants argue that the court erred by failing to instruct the jury sua sponte with CALJIC No. 3.16, that Ivan and Gilbert were accomplices "as a matter of law." Arevalo argues that Ivan's testimony constitutes the entire case against him because only Ivan identified him as the shooter.

Appellants' argument is speculative. They begin with the assumption that the jury relied exclusively on the immunized testimony of Ivan and Gilbert in rendering a verdict. From there, they argue that, had the jury been instructed with CALJIC No. 3.16 it would have been required to consider whether there was corroborating evidence.^[5] Appellants contend that, had this occurred, the jury would have found insufficient evidence to convict them. We reject this argument because the jury was thoroughly instructed concerning accomplice liability; there was insufficient evidence to warrant a sua sponte instruction that appellants were accomplices "as a matter of law"; and, in any event, there was sufficient evidence in the record to corroborate the testimony of Ivan and Gilbert.

Under Penal Code section 1111, "A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or circumstances thereof."

An accomplice is a person who is liable to prosecution for the same offense charged against the defendant on trial. (§ 1111.) He or she aids or abets a crime when, "'acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.''' (People v. Prettyman (1996) 14 Cal.4th 248, 259; citing People v. Beeman (1984) 35 Cal.3d 547, 561.) However, accomplice liability cannot be established when an individual merely gives assistance with knowledge of the perpetrator's criminal purpose. (People v. Sully (1991) 53 Cal.3d 1195, 1227.) One who conspires with or aids and abets another in the commission of a crime is liable for that crime, as well as any other offense that is a natural and probable consequence of the original crime. (Prettyman, at p. 260.)

The defendant must establish the accomplice status of a prosecution witness by a preponderance of the evidence. (People v. Sully, supra, 53 Cal.3d at p. 1228.) Whether a witness is an accomplice is a question of fact for the jury unless the evidence permits only a single inference. (People v. Williams (1997) 16 Cal.4th 635, 679.) Only where "'there is no dispute as to either the facts or the inferences to be drawn'" should the jury be instructed that the witness is an accomplice as a matter of law. (People v. Hayes (1999) 21 Cal.4th 1211, 1271; see People v. Zapien (1993) 4 Cal.4th 929, 983.) Failure to give accomplice instructions is harmless error where there sufficient evidence of corroboration in the record. (Hayes, at p. 1271.) Corroborating evidence may be slight, entirely circumstantial, and need not be sufficient to establish every element of the charged offense. (Ibid.; People v. Frye (1998) 18 Cal.4th 894, 966.)

The trial court instructed the jury that it must determine whether Ivan and Gilbert were accomplices. (CALJIC No. 3.19.)^[6] It defined an accomplice (CALJIC. No. 3.10) and described the necessary criminal intent (CALJIC No. 3.14). The court instructed the jury that accomplice testimony must be corroborated (CALJIC No. 3.11), that one accomplice may not corroborate another (CALJIC No. 3.13) and described the sufficiency of the evidence necessary for corroboration. (CALJIC No. 3.12) The court further instructed the jury that accomplice testimony "should be viewed with caution" (CALJIC No. 3.18). In that regard, the jury heard extensive testimony regarding Ivan's and Gilbert's immunity agreements with the prosecution.

A jury could reasonably have found that Ivan and Gilbert intended to serve as Centeno's "back up" in the event of a fight. However, the evidence does not conclusively establish that Ivan and Gilbert "by act or advice" aided, promoted, encouraged or instigated the shooting. (See People v. Prettyman, supra, 14 Cal.4th at p. 259.) Although they followed Centeno to the scene, they remained inside their car. After the shooting, they fled. No weapon was found in their car. While this evidence could have supported a jury finding that Ivan and Gilbert were accomplices, it was insufficient to warrant an instruction that they were accomplices as a matter of law.

Appellants rely on People v. Montano (1979) 96 Cal.App.3d 221 and People v. Montes (1999) 74 Cal.App.4th 1050 to argue that Ivan and Gilbert were accomplices as a matter of law because the shooting was a natural and probable consequence of a gang confrontation. In Montes the court stated, "When rival gangs clash today, verbal taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is unaware of these realities, and we see no reason the court should turn a blind eye to them." (Montes, at p. 1056.)

We have no reason to criticize this statement. However, the Montes and Montana courts decided only that a jury could reasonably make a factual determination that murder was the natural and probable consequence of a gang confrontation. Neither court reached this conclusion as a matter of law. We are guided instead by People v. Godinez (1992) 2 Cal.App.4th 492 in which the court concluded that murder as a matter of law is not always a foreseeable consequence of a gang confrontation. (Id. at p. 502 & fn. 9.) The evidence did not warrant an instruction that Ivan and Gilbert were accomplices as a matter of law.

Moreover, there was ample evidence to connect appellants to the crimes. The detectives and gang expert testified to appellants' membership in Colonia Chiques and its rivalry with the Barry Street gang. The evidence indicated that Centeno and one of the victims had been in custody together at a juvenile facility. Jorge Reyes, Ivan's brother, told detectives that Centeno had come by the house looking for Ivan on the night of the shooting and again the next morning. Jorge overheard Centeno in a telephone conversation saying that someone had borrowed his gun and used up the bullets.

Contrary to Arevalos' statement that he did not know Centeno and was not present at the shooting, both men were riding in Centeno's Mazda when Centeno was ticketed approximately one week before the shooting. A photo album in Centeno's car, recovered in Mexico, contained pictures of appellants making hand gestures. Arevalo had gang tattoos and his girlfriend told a detective he was a gang member. The searches of appellants' homes yielded ammunition, photographs, clothing and papers indicating gang affiliation. Given this corroborating evidence, any error in failing to instruct the jury with CALJIC No. 3.16 was harmless.

CALJIC No. 3.18

Appellants contend that the trial court's instruction with CALJIC No. 3.18 was inadequate to advise the jury of the dangers in relying on accomplice testimony. Appellants contend that the court erred by instructing that accomplice testimony should be "viewed with caution." They claim the court should instead have instructed the jury with an expanded version suggested in Justice Kennard's concurring opinion in People v. Guiuan (1998) 18 Cal.4th 558. There, it was proposed that the instruction be modified to give reasons why accomplice testimony should be viewed with distrust. (Id. at p. 576.) Appellants acknowledge that their contention is based on the minority view and indicate that the record does not show that defense requested the court to modify CALJIC No. 3.18, thus this issue may have been waived. For these reasons, it is unnecessary to address this argument. We reject their claim of cumulative error.

Cross-Examination of Ivan Reyes

Appellants argue that the trial court erred by restricting their cross-examination of Ivan Reyes concerning another gang-related shooting. They claim they were denied their Fifth and Sixth Amendment rights to due process and the confrontation of witnesses and the court abused its discretion by excluding this evidence under Evidence Code section 352.

At trial, appellants requested permission to cross-examine Ivan concerning his alleged involvement in a murder that occurred two months prior to the shooting. The defense submitted points and authorities in which it made the unsupported assertion that Ivan had murdered Jose Pimental on behalf of Colonia Chiques. It claimed that Ivan had bragged that he committed the offense and wished to cross-examine him on that subject.

In his moving papers, defense counsel requested permission to ask Ivan the following questions: 1) whether he committed any murders in 2002; 2) whether he bragged that he was the shooter in the Pimental murder; and 3) whether he discussed the murder with law enforcement. Counsel argued that under Article 1, section 28 subdivision (d) of the California Constitution (Proposition 8), the evidence was relevant and admissible to impeach Ivan's credibility.

Defense counsel acknowledged that "[i]t may very well be that law enforcement has now concluded that [Ivan] is not responsible for the murder of Mr. Pimental. I assume that to be true." He contended that Ivan's statements were nevertheless admissible to assist the jury in assessing his veracity. The trial court denied appellants' request under Evidence Code section 352, "[s]ince it involves an uncharged – apparently unsolved, apparently unrelated 187 that occurred two months prior to the crime at issue in this particular case." The court noted that defense counsel had thoroughly cross-examined Ivan on a variety of issues, including the immunity agreement.

The ruling was correct. Despite its breadth, Proposition 8 did not affect the broad discretion of trial courts to determine whether to exclude evidence pursuant to Evidence Code section 352. (People v. Castro (1985) 38 Cal.3d 301, 312-313.) The court may exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) We will not disturb such a ruling unless the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) The risk was substantial that evidence of Ivan's possible participation in another gang shooting could have confused the issues or mislead the jury. There was no abuse of discretion.

Admission of Tape-Recorded Jailhouse Conversation

Appellants claim that the trial court erred by admitting into evidence a tape recording of the jailhouse conversation between Ivan Reyes and his brother, Jorge Reyes. The People argue that this evidence was offered under an exception to the hearsay rule as a prior consistent statement and was intended to bolster Ivan's credibility, which had been attacked on cross-examination. (Evid. Code, §§ 1236, 791, subd. (b); People v. Crew (2003) 31 Cal.4th 822, 843.) The purpose of admitting the tape was to show Ivan had identified appellants before he was offered immunity, thus he had no reason to fabricate his testimony.

Appellants argue that the tape failed to qualify as a prior consistent statement because Ivan's reason for fabrication arose immediately after his arrest--to keep from being charged with homicide. Thus, it could not serve as an indicia of the reliability of his testimony. We reject appellants' argument. A suspect, arrested for a serious offense, may have a motive to fabricate to reduce his or her culpability. That Ivan may have done so does not invalidate a subsequent motive to lie. "A prior consistent statement logically bolsters a witness's credibility whenever it predates any motive to lie, not just when it predates all possible motives." (People v. Hillhouse (2002) 27 Cal.4th 469, 492.)

Appellants also contend that the court erred by failing to weigh the probative value of the tape against its prejudicial effect before admitting it into evidence. They claim that "the record in this case is barren of any indication that the court recognized the nature of the argument, weighed and/or rejected it."

After the court determined that the tape was admissible as a prior consistent statement, defense counsel stated that he was concerned the jury would hear "the cajoling, the bolstering," that Jorge gave Ivan during their conversation. After making this statement, counsel said, "I accept your ruling . . . ." Appellants have waived their Evidence Code section 352 argument by failing to raise it below. Nevertheless, we note that the tape-recorded conversation was highly probative of the truthfulness of Ivan's testimony and its prejudicial effect was minimal. "Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant's guilt." (People v. Crew, supra, 31 Cal.4th at p. 842.)

Cruel and Unusual Punishment

Arevalo was sentenced to a total term of 122 years and 8 months to life in state prison. On count 1 (murder) the court imposed a sentence of 25 years to life. On count 2 (attempted murder) Arevalo was sentenced to 7 years plus 10 years for the street gang enhancement. On count 3 (attempted murder), the court imposed a sentence of 28 months plus an additional 40 months for the gang enhancement. On each count, Arevalo was sentenced to an additional term of 25 years to life pursuant to section 12022.53, subdivision (d). The sentences were ordered to run concurrently. The court imposed and stayed the sentence on count 4 (shooting at an occupied motor vehicle.)

Centeno was sentenced to a total term of 109 years and 4 months to life in state prison. On count 1, the court imposed a sentence of 25 years to life. On count 2, Centeno was sentenced to 7 years and, on count 3, he was sentenced to 28 months. On each count, Centeno was sentenced to an additional term of 25 years to life pursuant to section 12022.53, subdivision (d). The court ordered the sentences to run concurrently. It imposed and stayed the sentence on count 4. Appellants argue that their sentences constitute cruel and unusual punishment under the state and federal constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)

Appellants first contend that their sentences are impermissibly lengthy because they are the result of consecutive firearm enhancements of 25 years to life imposed under section 12022.53, subdivision (d). They acknowledge that these arguments have been raised and rejected in People v. Zapeda (2001) 87 Cal.App.4th 1183, 1213 and People v. Gonzales (2001) 87 Cal.App.4th 1, 11, but make them here to preserve them for review. We decline their request to reconsider those decisions.

A sentence violates the state constitutional ban against cruel or unusual punishment if "'". . . it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity."'" (People v. Thongvilay (1998) 62 Cal.App.4th 71, 87-88.) It violates the federal constitution only if it is grossly disproportionate to the crime. (Ewing v. California (2003) 538 U.S. 11, 21). Appellants' sentences reach neither extreme.

The crime was completely unprovoked and the victims were unexpectedly shot in their own neighborhood. Centeno recognized one of the victims and provided his firearm to Arevalo to carry out the offense. The length of the sentences reflect the severity of appellants' conduct: their use of a firearm to murder one victim, inflict great bodily injury upon two other victims, and their commission of these acts for the benefit of a criminal street gang. Appellants' youthfulness does not render their sentences constitutionally infirm. (See generally People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383; People v. Gonzales, supra, 87 Cal.App.4th at pp. 16-17.)

Imposition of $10,000 Fine Under Vehicle Code

Appellants argue, and the People agree, that the court incorrectly imposed a $10,000 fine against them pursuant to section 23152, subdivision (a) of the Vehicle Code.

The judgments are modified to strike the $10,000 Vehicle Code fine imposed pursuant to section 23152, subdivision (a). The trial court is directed to amend the abstracts of judgment to reflect this modification and to forward certified copies of the amended abstracts to the Department of Corrections. In all other respects, the judgments are affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Kevin J. McGee, Judge

Superior Court County of Ventura

______________________________

Richard C. Gilman, under appointment by the Court of Appeal, for Defendant and Appellant Jose G. Centeno.

Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant Heriberto Arevalo.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler, Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1] All further statutory references are to the Penal Code, unless otherwise stated.

^[2] Barry Street is a Camarillo gang with 20-40 members. By contrast, Colonia Chiques, an Oxnard gang, has 1,700 members.

^[3] The car was registered to Jorge Reyes, Ivan's elder brother.

^[4] The People state that Arevalo admitted gang membership and cite to pages 179-181 of the Augmented Clerk's Transcript. Those pages are not in the record on appeal. Lodged with this court were three augmented clerk's transcripts: Centeno (pp. 1-87); Arevalo (pp. 1-28); and Arevalo (pp. 1-8).

^[5] CALJIC No. 3.16 provides, "If the crime of ____ was committed by anyone, the witness ____ was an accomplice as a matter of law and his testimony is subject to the rule requiring corroboration."

^[6] The court's instruction read in part, "You must determine whether the witness Ivan Reyes or Gilbert Carrillo was an accomplice as I have defined that term. [¶] The defendant has the burden of proving by a preponderance of the evidence that Ivan Reyes or Gilbert Carrillo was an accomplice in the crime[s] charged against defendant."