P. v. Gonzalez

Filed 9/26/07 P. v. Gonzalez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. George Genesta, Judge. Affirmed in part, modified in part, and remanded with directions.

Maria Morrison, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Scott A. Taryle, and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

A jury convicted Alex Gonzalez of attempted murder, during which he personally inflicted great bodily injury causing paralysis and a principal discharged and used a firearm causing great bodily injury (count 1); assault with a firearm, during which he personally inflicted great bodily injury causing paralysis and used a firearm (count 2); and possessing a gun while a felon (count 3). The jury rejected enhancements that (1) the attempted murder was premeditated, and (2) Gonzalez committed all three counts to assist a gang.^[1] Gonzalez also admitted two prior felony convictions for which he had served prison terms.^[2]

The court imposed an aggregate 11 year, 8 month plus 25 years-to-life sentence: on count 1, a 9-year upper term, plus a consecutive 25 years-to-life term for the principal-discharged-a-firearm-causing-great-bodily-injury enhancement; on count 3, a consecutive 8-month term (one-third of the 2-year middle term); and two consecutive 1-year terms for the two prior felony convictions. The court imposed but stayed terms for count 2 and the remaining enhancements.^[3]

Gonzalez timely appealed. He contends the court erred in: (I) denying his motion to bifurcate trial of the gang enhancements and admitting some inflammatory and prejudicial gang-related evidence; (II) denying his motion to tell the jury a prosecution witness had invoked his privilege against self-incrimination, permitting a police officer to opine that the witness never was a suspect, and disallowing cross-examination of the officer about that opinion; (III) permitting another police officer to testify about statements made to him by the witness; (IV) instructing the jury on the great-bodily-injury-causing-paralysis enhancement; (V) permitting the prosecutor to amend the

Information during trial to add the principal-discharged-a-firearm-causing-great-bodily-injury enhancement, instructing the jury about principals, and imposing an additional 25-years-to-life term therefor; and (VI) imposing an upper-term sentence without required jury findings in violation of Cunningham v. California.^[4]

We reject Gonzalezs contentions of error, except contention (V). We strike the section 12022.53 enhancement on count 1, vacate the sentence for that enhancement, and remand for resentencing. In all other respects we affirm the judgment.

FACTS AND PROCEEDINGS BELOW

Gonzalez does not challenge the sufficiency of the evidence. Viewed in accord with the usual rules governing appellate review,^[5]the evidence disclosed that Juan Orea, the crime victim, worked at a Pomona carwash with brothers Carlos and Francisco Sandoval. (To avoid confusion we hereafter refer to the Sandovals by their first names.) Although Orea denied being in a gang, he had gang tattoos and had told police he was a gang member or associate. One day in mid-May 2004, Orea became upset with Carlos and kicked him.

A day or two later, at about 8:00 a.m. on May 16, 2004, Orea was working at the carwash when Gonzalez, whom Orea did not know, drove up in a white Bronco with the Sandovals as passengers. Gonzalez approached Orea, who was vacuuming a car, and punched him in the head. Gonzalez asked Orea if he had a problem with the Sandovals. Orea said no. Gonzalez then said leave [my] sister alone. Orea knew Gonzalezs sister Yvette, with whom he had flirted when she came into the carwash within the last few weeks. Orea promised to stay away from Yvette. Gonzalez then asked Orea, where are you from . . . [?] I told him nowhere, he said this is Lopez Maravilla. (Nowhere meant Orea was not a gang member. Gonzalez pointed to himself when he said, Lopez Maravilla, the name of a Hispanic gang, and had Lopez Maravilla tattoos on his body.) Orea replied that he thought Gonzalez was a north sider[,] meaning a member of a group of Northern California gangs. Gonzalez replied, I am not from north side. I am telling you this is Lopez Maravilla. You know what[,] I am feeling like blasting you. Orea gave conflicting accounts of the Sandovals actions during his confrontation with Gonzalez. In one version, the Sandovals watched from about 20 feet away. In another version, the Sandovals joined Gonzalez, surrounding and threatening Orea.

Gonzalez walked back toward the Bronco. Orea, fearing Gonzalez was going to shoot him, began walking to the office to summon the police when he was shot once in the spinal cord, paralyzing him. Orea heard Carlos scream[] [] you got em, you got em. Francisco unsuccessfully tried to help Orea get to the office because Orea could not move his legs. Orea did not see who shot him. When interviewed a month after the shooting, Oreas description of the shooting was consistent although not identical with his trial testimony. Although Orea originally identified a photograph of another man as his assailant, he identified Gonzalez at the preliminary hearing and at trial. Orea testified a year later in a wheelchair and had been unable to move his legs since being shot.

Police and paramedics responded to the crime scene. Orea was unable to provide any information at the scene. Police reviewed the carwash surveillance videotape, which showed the Bronco arriving, Orea falling down, the Bronco departing within three minutes of arriving, and indistinct images of the driver. The video did not depict the Broncos license plate. Police detained and questioned several people at the scene, including the Sandovals, but did not administer gunshot residue tests to the Sandovals. Sergeant Marcus Perez, the lead investigator on the case, acknowledged that despite a subsequent investigation, including a search of Gonzalezs residence and visits to his workplace, police never recovered any forensic evidence, including a gun, shell casings, fingerprints, gunshot residue, the Bronco, or evidence that Gonzalez owned a Bronco, linking Gonzalez to the crime. In his opening statement and while cross-examining Perez, Gonzalezs attorney suggested that the police conducted a shoddy investigation, including failing to record witness statements, investigate leads, and consider Carlos a suspect. On redirect examination, over Gonzalezs objection, Perez opined that he never considered Carlos a suspect and that the investigation always pointed to Gonzalez.

Outside the jurys presence, both Sandoval brothers invoked their privilege against self-incrimination. As a result, neither brother testified at trial. The court admitted Carlos preliminary hearing testimony, telling the jury only that he was unavailable. The court denied Gonzalezs request to inform the jury that the Sandovals had invoked the privilege against self-incrimination. At the preliminary hearing, Carlos admitted he was angry at Orea because Orea, who claimed to be a gang member, had attacked him the day before the shooting. Carlos testified that he had known Gonzalez for a couple of years. On the day of the shooting, Gonzalez gave the Sandovals a ride to work. Carlos went to work, then heard and saw a brief verbal confrontation between Gonzalez and Orea. Carlos saw Gonzalez take a rifle from the Bronco and walk towards Orea, who began walking toward the office and then fell, yelling in pain. Carlos also testified he spoke with Perez about a month after the shooting and gave a similar version of the shooting, although, contrary to his testimony at the preliminary hearing, he told Perez he heard gunfire and saw Gonzalez get back in the Bronco after the shooting and drive away. Carlos also told Perez that sometime after the shooting, Gonzalez told Carlos if Gonzalez learned who had informed on him, Gonzalez would take care of him. Carlos claimed Gonzalez also said he had sold the Bronco. Finally, Carlos told Perez that Gonzalezs father told Carlos that Gonzalez admitted breaking down a rifle. (Gonzalezs father denied Gonzalez ever spoke about a rifle or that the father had so informed Carlos.)

Over Gonzalezs objection, the court admitted statements Carlos made to Officer Glenn Sabey at the crime scene shortly after the shooting as prior consistent statements. Sabey testified Carlos said he heard Orea and Gonzalez arguing about Oreas flirting with Gonzalezs sister, saw Gonzalez take a rifle from the Bronco, heard a popping sound, and saw Gonzalez quickly drive away.

Detective Robert Gray, a gang expert, testified that, based on his numerous tattoos and his admissions to two gang deputies, Gonzalez was an active member of the long-established and violent Lopez Maravilla gang, which commits robberies, assaults, murder, and drug sales as part of claiming control of a large portion of East Los Angeles. Gray described three predicate crimes committed by three named Lopez Maravilla members for which they were convicted: robberies, carjacking, and assaults by one member; drug and gun possession by a second member; and two robberies by a third member. Gray described additional crimes committed by the first member.^[6] Gray explained Lopez Maravilla did not claim to or control territory in Pomona where the shooting occurred, but most gangs try to enhance their power and prestige by attempting to spread into other areas through recruiting new members and committing crimes. Gray explained that gangs operate to maximize their level of respect or fear, which occurs by announcing their gang affiliation while committing crimes or acts of intimidation. Because other gangs and community members then are more likely to fear the gang, it increases the gangs ability to commit more crimes with greater impunity, because victims become reluctant to call the police. In a hypothetical situation resembling the shooting in this case, Gray opined that, by identifying himself as a Lopez Maravilla member, the shooter acted to further the gangs purpose by demonstrating that the gang would not be disrespected, as the shooter had been by the victim attacking the shooters friends, disrespecting his sister, and associating Lopez Maravilla, a Southern California gang, with its Northern California rivals. Once the shooter identified himself by gang affiliation, he had to escalate to violence because failing to do so would lower respect for the gang.^[7]

In defense, one of the first responding officers at the crime scene testified Carlos told her he did not see anything. Another officer testified Orea had told police he was a gang member. Gonzalezs sister testified that, although she knew Orea and had been to the carwash shortly before the shooting, they did not flirt and she never told her brother about any contact with Orea. Gonzalez did not testify.

The jury convicted Gonzalez of attempted murder (count 1), assault with a firearm (count 2), and possessing a gun while a felon (count 3), but found the allegations that the attempted murder was premeditated and that all the counts were committed to further a gangs interests not true. The jury did find Gonzalez personally inflicted great bodily injury causing paralysis on counts 1 and 2, personally used a firearm on count 2, and, on count 1, found a principal discharged a firearm causing great bodily injury.

DISCUSSION

I. THE COURT PROPERLY DENIED GONZALEZS MOTION TO BIFURCATE TRIAL OF THE GANG ENHANCEMENT AND ADMITTED THE GANG EVIDENCE, WHICH IN ANY EVENT DID NOT PREJUDICE GONZALEZ.

Before trial, Gonzalez moved to bifurcate trial of the gang enhancements alleged on all counts pursuant to section 186.22, subdivision (b), arguing any gang-related evidence had little probative value and was highly prejudicial regarding the charged crimes.^[8] The prosecution opposed the motion, arguing Gonzalezs tattoos and announcement of his gang membership, explained and put in context by the gang expert, were admissible to prove both his motive and identity on the charged crimes and the gang enhancement. The prosecution elaborated there was evidence Carlos thought Orea was a member of the Southside gang, which was affiliated with the Mexican Mafia prison gang, both of which were rivals of Lopez Maravilla, and may have communicated that information to Gonzalez. The prosecution sought to introduce evidence regarding the history and rivalries of all three gangs, to show the shooting also may have been motivated by that rivalry. Gonzalez argued there was no evidence he knew anything about Oreas alleged gang ties, and thus the evidence regarding Southside, the Mexican Mafia, and their rivalry with Lopez Maravilla was irrelevant and more prejudicial than probative. Gonzalez insisted, however, that he intended to introduce evidence of Oreas gang membership to impeach Oreas denials of gang membership as part of a general attack on his credibility. The court denied the bifurcation motion, finding the evidence admissible to show Gonzalezs identity and motive, but precluded the prosecution from producing any evidence regarding Southside, the Mexican Mafia, or their rivalry with Lopez Maravilla.

Before the gang expert testified, Gonzalez moved to limit his testimony. Gonzalez argued the experts testimony was inadmissible because it was not based on a generally accepted scientific process and constituted inadmissible profile evidence. (Gonzalez did not renew those arguments on appeal.) The court rejected those arguments. Gonzalez also offered to stipulate that Lopez Maravilla was a criminal street gang, and that in any event the court should admit evidence of only two predicate crimes committed by other gang members because further evidence was unduly prejudicial. Gonzalez also argued the predicate crimes evidence should be limited to the dates of conviction and the title of the charges, and the expert should not be permitted to testify about the facts underlying the charges because such testimony was hearsay and unduly prejudicial. The court agreed to instruct the jury the predicate crimes evidence was relevant only on the gang allegations and should not be considered as evidence of Gonzalezs guilt on the charged crimes. The court also instructed the expert to limit his testimony regarding the facts of the predicate crimes, but ruled that he could testify regarding three predicate crimes and could relate basic facts about each one. The expert testified as described above. The jury found all the gang allegations not true.

Gonzalez contends the court erred in denying his motion to bifurcate the trial of the gang allegations. He further contends that even if that ruling was proper, the court erred in admitting much of the gang evidence. Although he concedes evidence he told Orea and the police he was a gang member was admissible to show his identity as the shooter, he argues the evidence was only tangentially relevant to show a motive for the attack, which, he claims, primarily involved protecting his friends from attack and protecting his sister. Because the gang evidence was more prejudicial than probative as to the charged crimes, he argues the court should have bifurcated trial of the gang enhancements. Even if the court properly denied bifurcation, he argues for the same reasons it erred in admitting most of the gang evidence, specifically a third predicate crime and factual details about those crimes, evidence that gangs try to expand their territory, recruit new members, operate through violence and intimidation, respond to perceived disrespect with violence, and that these errors prejudiced him. The contention lacks merit.

The prosecution may seek admission of gang evidence for two different purposes: (1) to prove charged crimes, in this case premeditated attempted murder, firearm assault, and illegal gun possession; and (2) to prove charged gang enhancements, here that the three charged crimes were committed to further the gangs purposes. When used to prove a charged crime, relevant gang affiliation and activity evidence is admissible to show the perpetrators identity and motive for the crime.^[9] The evidence is subject to a balancing test and should be excluded if its probative value is outweighed by its substantial prejudicial effect.^[10] Although decisions regarding the admissibility of evidence generally are reviewed for abuse of discretion, where the court admits gang evidence to prove a charged crime, an appellate court cannot find the trial court abused its discretion in admitting gang evidence if substantial evidence supports the trial courts decision.^[11]

The culture and habits of criminal street gangs are proper subjects of expert opinion.^[12] Thus, an expert may testify whether an incident is gang-related and that a specific street gangs primary purpose is to commit certain offenses.^[13] Expert testimony, based on a hypothetical involving the same facts as the case on trial, that a shooting benefited defendants gang because it caused intimidation and increased the fear that rival gangs felt toward the gang, is proper concerning the general expectations and tendencies of gang members.^[14] However, a gang expert may not opine regarding a defendants subjective intent in committing the crimes.^[15]

A court may, upon request, bifurcate trial of a gang enhancement from trial of the substantive charges where the gang evidence has little or no relevance to the charged crimes and trying them together might prejudice the defendant.^[16] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense.

Evidence of the defendants gang affiliation including evidence of the gangs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]^[17] Moreover, [e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged a court may still deny bifurcation.^[18] As with the preference for joinder rather than severance of charged offenses, denying bifurcation conserves judicial resources through use of a single trial, and avoids the prejudice inherent in joint trial of charged and uncharged offenses because all the crimes are tried together and the predicate crimes evidence does not relate to [an] offense for which the defendant may have escaped punishment. . . . [T]he trial courts discretion to deny bifurcation of a charged gang enhancement is . . . broader than its discretion to admit gang evidence when the gang enhancement is not charged.^[19] To further guard against prejudice where the court denies bifurcation, it should, upon request, give a limiting instruction similar to that given in this case.^[20]

Applying these principles to our facts, we conclude the court properly denied bifurcation and admitted the challenged gang evidence. First, as Gonzalez concedes, the gang evidence was admissible to prove his identity as Oreas assailant. Second, although there was evidence that the assailant may have had motives in addition to furthering the gangs interests, there also was evidence of a gang-related motive. By verbally identifying himself as a member of a specific violent gang and pointing to his identifying tattoos, Gonzalez was using the gangs notorious reputation for violence to attempt to intimidate Orea and any onlookers with the gangs power and influence. The experts testimony about gangs trying to expand their territorial reach, recruit new members, and cow innocent bystanders into submission all supported this motive. Moreover, the experts explanation why Gonzalez would be more likely to use violence when incorrectly identified as a norteno furthered this inference. Although the predicate crimes evidence may not have been admissible to prove the charged crimes, evidence that other Lopez Maravilla members had committed robberies, carjacking, assaults, and drug and weapons possession was no more prejudicial than the charged crimes of attempted premeditated murder, firearm assault, and illegal gun possession. Thus, the court properly denied bifurcation and admitted the gang evidence. Any residual prejudice was cured by the cautionary instruction approved in Hernandez.

Even assuming the court erred in admitting the experts testimony, we conclude the error was harmless. We review the erroneous admission of gang evidence under the standard enunciated in People v. Watson^[21]under which reversal is warranted only if we conclude that it is reasonably probable that a result more favorable to the appealing party would have been reached absent the error.^[22] Gonzalezs jury rejected all the gang enhancements, demonstrating the gang evidence had no prejudicial effect. Moreover, the jury also rejected the premeditation allegation on the attempted murder charge, showing there was no spillover prejudice to the other charges. The jury requested readbacks of the testimony of Orea and Carlos, the two percipient witnesses, as well as the carwash security videotape, showing it focused on the facts surrounding the crime, not on the gang evidence. The verdicts thus dispel rather than demonstrate any suggestion of prejudice.

II. THE COURT PROPERLY REJECTED GONZALEZS REQUEST TO TELL THE JURY CARLOS INVOKED HIS PRIVILEGE AGAINST SELF-INCRIMINATION, PERMITTED PEREZ TO OPINE THAT CARLOS NEVER WAS A SUSPECT, AND DENIED GONZALEZS REQUEST TO CROSS-EXAMINE PEREZ ABOUT THOSE OPINIONS.

Gonzalez contends the court erred in refusing his request to tell the jury Carlos was unavailable as a witness because he invoked his privilege against self-incrimination, permitting Perez to opine that Carlos never was a suspect and all leads pointed to Gonzalez as the shooter, and in refusing his request to cross-examine Perez about those opinions. Because Carlos credibility was in issue, Gonzalez argues he was entitled to have the jury know why Carlos was unavailable, particularly to prevent false speculation that Carlos feared gang retaliation. Gonzalez also argues Perezs opinion constituted inadmissible testimony about Gonzalezs guilt, and the court erred in not permitting him to cross-examine Perez about that opinion.

The Attorney General responds controlling Supreme Court authority precludes informing a jury about a witness invocation of the privilege against self-incrimination. He further responds the prosecutor elicited Perezs opinion only on redirect examination after Gonzalezs cross-examination strongly suggested Perez conducted an inadequate investigation, ignoring Carlos as a suspect, and thus was properly admitted. We agree with the Attorney General.

First, the court properly refused to tell the jury that Carlos had invoked the privilege against self-incrimination. As our Supreme Court has held, permitting the jury to learn that a witness has invoked the privilege against self-incrimination serves no legitimate purpose and may cause the jury to draw an improper inference of the witness guilt or complicity in the charged offense. [Citations.]^[23] We are bound by that authority.^[24] We reject Gonzalezs argument that Cudjo was fact-specific or wrongly decided.

Second, the court properly exercised its discretion in permitting the prosecutor, on re-direct, to elicit Perezs opinion that Carlos never was a suspect and all leads pointed to Gonzalez, after Gonzalezs cross-examination suggested Perez wrongly overlooked Carlos as a suspect. As relevant, Evidence Code section 210 states: Relevant evidence means evidence, including evidence relevant to the credibility of a witness . . . , having any tendency in reason to prove or disprove any disputedfact that is of consequence to the determination of the action. (Italics added.) Gonzalezs trial theory was that he either was not present at the crime scene or, if he was, someone else, probably Carlos, was the shooter. Gonzalezs cross-examination attacked Perezs investigation and suggested he ignored Carlos, a potential suspect, and deliberately or negligently incorrectly made Gonzalez the suspect. The court did not abuse its discretion in permitting the prosecution to rebut this suggestion by eliciting Perezs opinion. Because Gonzalez already had fully explored the point in his cross-examination, the court likewise did not abuse its discretion in refusing further examination on this topic.^[25]

III. THE COURT ERRED IN ADMITTING CARLOS STATEMENTS TO SABEY, BUT THE ERROR WAS HARMLESS.

As discussed in the Facts, after Carlos invoked his privilege against self-incrimination, the court declared him unavailable and allowed the prosecution to introduce his preliminary hearing testimony. Carlos testified he saw and heard a brief verbal confrontation between Orea and Gonzalez, saw Orea walk toward the office while Gonzalez obtained a rifle from the Bronco, saw Orea fall, heard Orea scream in pain, and, when he looked up, Gonzalez and the Bronco were gone. Carlos denied having heard gunshots or seeing Gonzalez reenter the Bronco and drive away. During direct examination by the prosecutor, Carlos agreed Perez interviewed him about a month after the shooting, and that during that interview, he did tell Perez he heard gunshots and saw Gonzalez reenter the Bronco and drive away. Neither party asked Carlos about statements he made to Sabey immediately after the shooting, and Gonzalezs cross-examination did not suggest Carlos had fabricated his testimony.

The prosecution sought to call Sabey to recount Carlos post-shooting statements, arguing the statements constituted prior consistent statements under Evidence Code section 791.^[26] The prosecutor argued the defense theory was Carlos and Orea were liars, and thus supplied an express or implied charge of fabrication. Gonzalez objected on two grounds. First, he argued the statements were not admissible as prior consistent statements because he had not expressly or impliedly charged Carlos with fabrication during Carlos testimony. Second, he argued that the statements were inadmissible testimonial hearsay under Crawford v. Washington and should be excluded on that ground.^[27] The court overruled the objections and admitted Sabeys testimony. Sabey testified that, during an interview at the carwash after the shooting, Carlos gave an account generally consistent with his preliminary hearing testimony, but also said he heard gunshots and saw Gonzalez reenter the Bronco and drive away.

Gonzalez contends the court erred in overruling his objections and admitting Sabeys recounting of his earlier statement. The Attorney General argues the evidence properly was admitted under Evidence Code section 791. Regarding the Crawford objection, however, the Attorney General offers no rationale why Sabeys testimony complies, arguing only that Carlos preliminary hearing testimony complies. We need not decide whether the statements properly were admitted as prior consistent statements under Evidence Code section 791 because we agree with Gonzalez they were improperly admitted under Crawford. When Carlos spoke to Sabey, the shooter long since had fled the scene and Sabey was not confronting an emergency situation. On the contrary, he interviewed Carlos to find out what had happened in the now completed shooting. Such a police interrogation is inadmissible under Crawford.^[28]

However, we conclude the error in admitting the statements was harmless beyond a reasonable doubt.^[29] Carlos statements to Sabey generally were consistent with both his preliminary hearing testimony and his statement to Perez. The only additional evidence in his statement to Sabey was he heard gunshots and saw Gonzalez reenter the Bronco and drive away. In none of the statements did Carlos say he saw Gonzalez fire the shots, and the carwash security videotape showed that the shooter reentered the Bronco and drove off within three minutes of arriving. Thus, the additional evidence in Carlos statement to Sabey was undisputed. Moreover, given the near identical nature of Carlos accounts, admission of his statement to Sabey did not appreciably inflate Carlos credibility or diminish the factors, such as his motive to retaliate against Orea and his potentially assisting the shooter, that undermined it. Thus, the erroneous admission of Sabeys testimony did not prejudice Gonzalez.

IV. THE COURT ERRED IN INSTRUCTING ON THE GREAT-BODILY-INJURY-CAUSING-PARALYSIS ENHANCEMENT, BUT THE ERROR WAS HARMLESS.

Pursuant to section 12022.7, subdivision (b), the amended Information alleged as enhancements to counts 1 and 2 that Gonzalez personally inflicted great bodily injury causing permanent paralysis.^[30] However, the courts jury instruction on this enhancement failed to include either the statutory definition of paralysis or a requirement that the paralysis be permanent.^[31] We agree with Gonzalez that the court was required to instruct the jury sua sponte regarding both section 12022.7, subdivision (b)s definition of paralysis and that the paralysis be permanent, both of which are elements of the enhancement.^[32] We reject the Attorney Generals argument, based on sections 273a and 273ab involving injuries to children, that paralysis has no technical meaning. On the contrary, section 12022.7, subdivision (b) includes a specific, technical definition of paralysis on which the jury must be instructed sua sponte. As such, we also reject the Attorney Generals related argument that Gonzalez waived the issue by not requesting instructions including the statutory definition of paralysis.

We conclude, however, the error was harmless beyond a reasonable doubt.^[33] The evidence was undisputed Oreas legs were paralyzed and he was unable to walk from the moment the bullet struck him. He testified a year later in a wheelchair and there was no evidence his paralysis was temporary. Gonzalez conceded these facts in his opening statement and final argument. No properly instructed jury would have failed to find Oreas paralysis fit the statutory definition and was permanent.

V. THE COURT ERRED IN IMPOSING A 25 YEARS-TO-LIFE TERM FOR THE SECTION 12022.53, SUBDIVISION (E) PRINCIPAL-DISCHARGED-A-FIREARM-CAUSING-GREAT-BODILY-INJURY ENHANCEMENT.

The original Information alleged, on the count 1 attempted murder, Gonzalez personally discharged a firearm causing great bodily injury under section 12022.53, subdivision (d). During the prosecutions case in chief, and over Gonzalezs objection, the court permitted the prosecutor to amend the Information to delete the personal-firearm-discharge enhancement and add an enhancement that a principal discharged a firearm causing great bodily injury under section 12022.53, subdivision (e), which can be imposed only if the prosecution also alleges and proves the defendant personally committed the charged crime to benefit a gang.^[34] The prosecutor stated the amendment, when combined with a true finding on the gang enhancement, would allow the section 12022.53, subdivision (e) enhancement to be imposed if the jury decided that Gonzalez was a principal but someone else fired the shot which hit Orea. The prosecutor explained, based on Gonzalezs cross-examination of her witnesses, the jury might reject her case theory that Gonzalez was the shooter.

The court instructed the jury Gonzalez could be liable for the charged crimes and other enhancements only as an actual perpetrator. The only crime or enhancement on which the court instructed the jury Gonzalez could be liable as an aider and abettor rather than as an actual perpetrator was the amended section 12022.53, subdivision (e) enhancement. However, the court instructed the jury with a modified version of CALJIC No. 3.00 (which defines principals as actual perpetrators or aiders and abettors) which omitted the definition of aiders and abettors.^[35]

As previously discussed, regarding the section 12022.53, subdivision (e) enhancement, the jury found the principal-discharged-a-firearm-causing-great-bodily-injury allegation true, but found the gang allegations alleged on all three counts not true. The jury did find Gonzalez personally inflicted great bodily injury causing paralysis on counts 1 and 2, and personally used a firearm on count 2 under a different enhancement, section 12022.5, subdivision (a). On the latter enhancement, the court instructed the jury: The term personally used a firearm,. . . means that [Gonzalez] must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it.

In their respective sentencing memoranda, the prosecution asserted and Gonzalez disputed the court could impose the 25 years-to-life enhancement under section 12022.53, subdivision (e), despite the jurys rejection of the gang allegations. The prosecution argued that because the jury found Gonzalez personally inflicted great bodily injury and used a firearm under different enhancements, and the facts disclosed that no other weapon or source of Oreas injury existed, sufficient allegations and findings existed to support imposition of the section 12022.53 enhancement. Gonzalez argued that findings on other enhancements, particularly where the prosecution dismissed the personal enhancement under section 12022.53, subdivision (d) as a tactical choice, were insufficient to support the enhancement. After hearing argument, the court imposed a consecutive 25 years-to-life term under section 12022.53 on count 1.

Gonzalez contends the court erred in permitting the mid-trial amendment to change the section 12022.53 enhancement from personal to principal firearm discharge, instructing the jury regarding the amended enhancement, and imposing an additional 25 years-to-life term therefor when the jury rejected the related required gang allegation. We agree the court could not impose the additional term because the jury rejected the required gang component. We strike the section 12022.53 (e) finding and sentence. As a result, we need not address Gonzalezs other two related contentions.

The plain language of section 12022.53, subdivision (e) requires that the enhancements provided in the section may only be imposed if both the principal-discharged and the gang enhancements are pled and proved. Although both were pled, the jury found all the gang enhancements not true. Although subdivision (j) requires facts required to trigger section 12022.53 punishment must be pled and proved, that subdivision cannot be read to eliminate subdivision (e)s requirement that both the principal-discharged and gang enhancements must be pled and proved to impose punishment under the section. The prosecution deliberately deleted the only personal-discharge allegation under section 12022.53, so no punishment under that section could be imposed. Although the jury found other personal gun use and great bodily injury enhancements true under the facts presented, those enhancements carry far lower punishments than does section 12022.53. To nonetheless impose a section 12022.53 punishment would deprive Gonzalez of notice of the possible sentence he faced. Our Supreme Court has rejected a similar argument by the prosecution in interpreting similar provisions of the section 667.61 one-strike sentencing scheme for forcible sex crimes.^[36] That decision compels a similar conclusion here. Thus, we strike the section 12022.53 finding and sentence on count 1. We will remand the matter to permit the court to consider whether to impose additional punishment on count 1 for the great-bodily injury enhancement on that count.

VI. IN COMPLIANCE WITH BLACK II, WE AFFIRM THE UPPER TERM SENTENCE ON COUNT 1.

At sentencing, the court considered a probation report which disclosed, in addition to Gonzalezs admitted 1999 unlawful vehicle taking and 2002 commercial burglary felony convictions for which he served prison terms, the following criminal history: misdemeanor convictions in 1996 and 1998 for spousal battery, in 1999 for drunk driving, and in 2003 for driving with a suspended license (for all of which he was placed on probation and, with the exception of the 2003 conviction, served increasing periods of jail time), and a 2001 parole violation for disturbing the peace for which he was returned to prison. The court imposed a nine-year upper term on count 1, explaining: [T]here are no factors in mitigation. The court finds the following factors in aggravation under . . . the rules of court, that the manner in which the crime was carried out indicates planning, sophistication or professionalism. [Gonzalezs] convictions as an adult are [of] increasing seriousness and [Gonzalezs] prior performance on parole or probation [sic].^[37]

When the parties submitted their original briefs, the California Supreme Court decision in People v. Black [Black I]^[38]was the controlling authority and thus appellant could only argue that decision was wrongly decided, relying primarily on opinions from other state supreme courts to support his position. Since then, Black I was superseded by the United States Supreme Courts opinion in Cunningham v. California^[39]under which this court was prepared to remand this case for resentencing. But then the California Supreme Court responded to the Cunningham decision with a second opinion in People v. Black (Black II).^[40]

While the members of this panel are not unanimous in their conviction the California Supreme Court properly interpreted the United States Supreme Courts Cunningham opinion, we are united in our understanding we are bound by our high courts decision in Black II. According to that opinion, if a single aggravating factor not requiring a jury finding is available to the sentencing judge, imposition of an upper term sentence is authorized even if the judge used other improper factors in deciding to impose that sentence.^[41] Furthermore, under that same decision, a judge without a jury is permitted to find the defendant suffered prior convictions^[42]and also to make other findings related to such convictions, such as those convictions were of increasing seriousness or the defendants performance on parole was unsatisfactoryso long as those findings can be made by an examination of the record.^[43]

In this case, the trial judge used his own findings by a preponderance of the evidence as to three factors to justify aggravating Gonzalezs sentence from the presumptive mid-term to a high-term sentence. One of those factorsthe purported sophistication, planning, and professionalism exhibited in Gonzalezs commission of this crimeclearly involved the finding of facts Cunningham tells us only a jury not a judge is constitutionally permitted to make and then only if the jurors agree that fact has been proved beyond a reasonable doubt. The other two factors, however, are permissible under Black II, and either would be sufficient to make Gonzalez eligible for an upper term sentence and thus uphold the trial courts imposition of that sentence in this case.

It is true the latter two factors although deriving from prior convictions require the fact finderwhether judge or juryto make further findings in addition to the existence of one or more prior convictions. One of those factors requires a finding the prior convictions were of increasing seriousness. Moreover, Gonzalez did not admit the convictions were of increasing seriousness even if he admitted those offenses occurred or they were proved to the court. Nor did the jury have the opportunity to consider or make the finding Gonzalezs priors had the further characteristic of being of increasing seriousness. Nonetheless, under Black II, the trial judge is permitted to make the finding the prior convictions were of increasing seriousness because that finding can be made merely by examining the records of those convictions.

The third factor likewise derived in part from a prior conviction. But also, once again, it required finding a fact different from and beyond the conviction itselfthat Gonzalez was placed on parole or probation as a result of that conviction and failed to perform well when in that status. Unlike some cases which have upheld such findings this one did not involve Gonzalezs commission of the instant crime while on parole or probation for a prior crime. In those cases, the jurys verdict the defendant committed the instant crime coupled with the jurys finding or the defendants admission he was on parole combined to satisfy Cunninghams mandate the aggravating factor be either found by a jury or admitted by the defendant.

In this case, however, Gonzalezs alleged poor performance on parole related to a prior conviction committed while he purportedly was on parole from a still earlier conviction. It is clear the two earlier prior convictions themselves do not have to be decided by a jury in order to be consistent with Cunningham. But Gonzalezs parole or probation status when he committed the second of those earlier priors is a further fact beyond the bare fact of the prior convictions and would appear to be a fact Cunningham requires a jury not a judge to adjudicate. Under Black II, however, this factor too is one a trial judge can make without a jury, because it can be determined by examining the cold record, a prior conviction followed by revocation of the probation ordered as part of the sentence imposed for that conviction.

The California courts have given the prior convictions exception a broad reading, holding it embraces a full range of recidivist factors,^[44]which reading has been reinforced by Black II. Thus, the findings of increasing seriousness and poor performance on parole appear clearly within the ambit of those factors. We are bound by those opinions and, accordingly, conclude the trial court here could consider the increasing seriousness of his convictions and poor performance on parole factors in deciding whether to raise Gonzalezs punishment to a high term sentence on count 1.

The remaining question whether the court would have done so without the additional factor of Gonzalezs alleged sophistication, planning, and professionalism in commission of the crime has been rendered irrelevant by Black II. Accordingly, the high term is justified without a jury finding on any of the factors the trial judge used to impose that sentence and we have no occasion to remand for resentencing for reconsideration of the high-term sentence the trial court imposed on count 1.

DISPOSITION

We strike the section 12022.53 finding and sentence enhancement on count 1. We vacate the sentence imposed for the section 12022.53 enhancement on count 1 and remand for resentencing. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

We concur:

PERLUSS, P. J.

ZELON, J.

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^[1] Penal Code, sections 664; 187, subdivision (a); 12022.7, subdivision (b); 12022.53, subdivisions (b), (c), (d), (e); 245, subdivision (a)(2); 12022.5, subdivision (a); 12021, subdivision (a)(1); 186. 22, subdivision (b). All further undesignated section references are to the Penal Code.

^[2] Section 667.5, subdivision (b).

^[3] Section 654.

^[4]Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].

^[5]People v. Hill (1998) 17 Cal.4th 800, 848-849.

^[6] The court admonished the jury, [T]he testimony that youll hear regarding gang allegations or gang affiliations is limited only to the special allegation[s] in the [I]nformation. It is not to be used for the substantive crimes in counts 1, 2, or 3 or to be considered in the guilt or innocence of the substantive crimes in counts 1, 2, and 3. Its simply the special allegations which youll be given a special form to deal with but not to be used for any other purpose.

^[7] The court further instructed the jury pursuant to CALJIC No. 17.24.3 (Spring 2007 ed.; all further CALJIC references are to the Spring 2007 ed.) as follows: Evidence has been introduced for the purpose of showing criminal street gang activities and of criminal acts by gang members other than the crimes for which the defendant is on trial. [] This evidence, if believed, may not be considered by you to prove the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show that the crime or crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members. [] For the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in this case. [] You are not permitted to consider such evidence for any other purpose.

^[8] As relevant, section 186.22, subdivision (b), states: [A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he . . . has been convicted, be punished . . . .

^[9] Evidence Code section 1101, subdivision (b); People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050.

^[10] Evidence Code section 352; People v. Hernandez, supra, 33 Cal.4th at page 1049.

^[11]People v. Champion (1995) 9 Cal.4th 879, 921-925, disapproved on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860; cf. People v. Maestas (1993) 20 Cal.App.4th 1482, 1494-1501 [prejudicial error to admit gang evidence only to impeach part of co-defendants testimony].

^[12]People v. Gardeley (1996)14 Cal.4th 605, 617.

^[13]People v. Gardeley, supra, 14 Cal.4th at page 617.

^[14]People v. Gardeley, supra, 14 Cal.4th at page 619; People v. Villegas (2001) 92 Cal.App.4th 1217, 1224; People v. Valdez (1997) 58 Cal.App.4th 494, 508-509.

^[15]People v. Killebrew (2002) 103 Cal.App.3d 644, 652 and 658; People v. Torres (1995) 33 Cal.App.4th 37, 43-47.

^[16]People v. Hernandez, supra, 33 Cal.4th at pages 1044, 1048-1051.

^[17]People v. Hernandez, supra, 33 Cal.4th at pages 1049-1050.

^[18]People v. Hernandez, supra, 33 Cal.4th at page 1050.

^[19]People v. Hernandez, supra, 33 Cal.4th at page 1050.

^[20]People v. Hernandez, supra, 33 Cal.4th at pages 1051-1052.

^[21]People v. Watson (1956) 46 Cal.2d 818, 836.

^[22]People v. Valdez, supra, 58 Cal.App.4th at page 511; People v. Maestas, supra,20 Cal.App.4th at page 1498.

^[23]People v. Cudjo (1993) 6 Cal.4th 585, 619-620.

^[24]Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.

^[25]People v. Scheid (1997) 16 Cal.4th 1, 13-14.

^[26] Evidence Code section 1236 states: Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791.

Evidence Code section 791 states: Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [] (b) An express or implied charge has been made that his testimony at the hearing