P. v. McCarthy

Filed 5/15/08 P. v. McCarthy CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed.

Kristin A. Erickson for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

Kevin Robert McCarthy appeals from a judgment committing him to prison for attempted manslaughter and various other crimes. While he raised five issues in his opening brief, he has since withdrawn four of them.^[1] The only issue remaining for our consideration is the propriety of McCarthys sentence, which he challenges on three separate bases. Finding no sentencing error, we affirm the judgment in its entirety.

FACTS

McCarthy was a member of the Lopers street gang and the Mexican Mafia. On July 22, 2003, he went to an upholstery shop in Santa Ana, where Bernardo Perez and others were drinking. McCarthy demanded $250 in taxes for the Mexican Mafia, but Perez told him to get lost. McCarthy then pulled a gun, and after Perez tried to grab the weapon, he shot Perez in the chest.

Charged with attempted murder, the jury convicted McCarthy of the lesser included offense of attempted manslaughter. (Pen. Code, 664, 192, subd. (a).)^[2] The jury also found McCarthy guilty of attempted extortion and two counts of street terrorism ( 524, 186.22, subd. (a)), and found true two allegations he acted for the benefit of a criminal street gang. ( 186.22, subd. (b).) The jury acquitted McCarthy of attempted robbery.

After finding McCarthy had suffered a prior strike conviction and served a prior prison term ( 667, subds. (a)(1), (d) & (e)(1); 667.5, subd. (b)), the court sentenced him to 25 years and 8 months in prison. In so doing, the court invoked section 654 to stay McCarthys sentence on one of the street terrorism counts and one of the gang enhancements. The court used the other gang enhancement to increase McCarthys sentence on the two attempt counts.

Here is how McCarthys sentence was constructed:

Count 1, attempted manslaughter = 11 years (high term doubled under the Three Strikes law), plus a 5-year gang enhancement for acting to benefit the Lopers;

Count 2, street terrorism for being an active participant in the Lopers = 1 year, 4 months;

Count 3, street terrorism for being an active participant in the Mexican Mafia = stayed per section 654;

Count 5, attempted extortion = 1 year, 4 months, plus a 1-year gang enhancement for acting to benefit the Lopers;

Prior serious felony = 5 years;

Prior prison term = 1 year;

Gang enhancement for acting to benefit the Mexican Mafia = stayed per section 654.

I

Relying on section 654, McCarthy contends the court should have stayed his sentence for street terrorism in count 2. Specifically, he argues his intent in committing that offense was the same as his intent in committing the gang-related attempted extortion in count 5; namely to acquire money for gang activities. We uphold the courts sentence on count 2.

Section 654 provides, An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. ( 654, subd. (a).) Although section 654 speaks in terms of an act or omission, it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time. [Citation.] (People v. Meeks (2004) 123 Cal.App.4th 695, 704.)

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.] (People v. Britt (2004) 32 Cal.4th 944, 951-952.)

The trial court in this case was well aware of section 654s proscription against multiple punishment. While it found that provision applicable to certain aspects of McCarthys sentence, it ruled section 654 was inapt as to the attempted manslaughter in count 1 and the attempted extortion in count 5. In so ruling, the court found McCarthys intent in committing the latter offense was to benefit his gang, whereas his intent for the shooting was to extricate himself from the struggle with Perez. In light of this finding, McCarthy contends section 654 precludes his punishment on count 2, because as in count 5, his intent in committing street terrorism was to further the interests of his gang. We disagree with this contention, for the reasons explained in People v. Herrera (1999) 70 Cal.App.4th 1456.

In that case, this court determined Herrera was properly punished for both attempted murder (two counts) and street terrorism because the crimes had different objectives. We explained, [M]ultiple punishment . . . may be imposed where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives. [Citations.] [Citation.] [] The characteristics of attempted murder and street terrorism are distinguishable, even though aspects of one may be similar to those of the other. In the attempted murders, Herreras objective was simply a desire to kill. For these convictions, the identities (or gang affiliations) of his intended victims were irrelevant. (People v. Herrera, supra, 70 Cal.App.4th at pp. 1466-1467.)

In contrast, [the crime of street terrorism] encompasses a more complex intent and objective. . . . [] [It] punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself.^[[3]]Hence, [for street terrorism] the defendant must necessarily have the intent and objective to actively participate in a criminal street gang. However, he does not need to have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendants objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense. . . . Hence, [street terrorism] requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime may thus possess two independent, even if simultaneous, objectives[,] thereby precluding application of section 654. [Citation.] (People v. Herrera, supra, 70 Cal.App.4th at pp. 1467-1468, fns. omitted.)

In so holding, we noted that if section 654 were held applicable here, it would render [the crime of street terrorism] a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang. [T]he purpose of section 654 is to insure that a defendants punishment will be commensurate with his culpability. [Citation.] [Citation.] We do not believe the Legislature intended to exempt the most culpable parties from the punishment under the street terrorism statutes. (People v. Herrera, supra, 70 Cal.App.4th at p. 1468, fn. omitted; accord, In re Jose P. (2003) 106 Cal.App.4th 458, 468-471 [upholding punishment for both street terrorism and a gang-related robbery].)

This case is indistinguishable from Herrera, in that separate, albeit simultaneous, intents can be inferred from McCarthys conduct. His intent to extort can be readily inferred from his demand for taxes for the Mexican Mafia, and his intent to actively participate in a criminal street gang can be gleaned from his undisputed association with that gang, as well as its local affiliate, the Lopers. Under these circumstances, McCarthy is clearly deserving of multiple punishment, and therefore the court did not err in imposing sentence on both counts 2 and count 5. No violation of section 654 has been shown.

II

McCarthy also contends the court abused its discretion in imposing the gang enhancement on his sentence for attempted manslaughter. Again, we disagree.

Pursuant to section 186.22, the trial court may strike the additional punishment for a gang enhancement in an unusual case where the interests of justice would best be served . . . . ( 186.22, subd. (g).) However, McCarthy did not ask the trial court to exercise its discretion in this regard, which raises the specter of waiver. Our Supreme Court has stated that the waiver doctrine should apply to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 353.) This includes claims, such as the one presently before us, concerning a trial courts discretion to mitigate punishment in the interests of justice. (See, e.g., People v. Carmony (2004) 33 Cal.4th 367, 375-376 [any failure on the part of a defendant to invite the court to dismiss under section 1385 . . . waives or forfeits his or her right to raise the issue on appeal.].) Accordingly, because McCarthy did not ask the court to dismiss the gang enhancement punishment, he has waived his right to challenge it on appeal.

Even if the claim had not been waived, we would reject it. Where, as here, a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316.)

McCarthy contends imposition of the gang enhancement punishment on the attempted manslaughter count was indeed arbitrary and capricious because, as noted in the preceding section, the trial court believed he shot the victim to extricate himself from the confrontation he had created with Perez. However, the trial court made this determination in the context of its section 654 analysis, and as McCarthy plainly admits, there was sufficient evidence presented at trial to support the jurys determination he shot Perez to benefit a criminal street gang. Indeed, the record shows he instigated a potentially fatal shooting that helped not one, but two notoriously dangerous gangs. McCarthy has failed to show that this is an unusual case justifying the striking of his punishment for the gang enhancement on the shooting count.

III

Lastly, McCarthy argues the trial court violated his right to a jury trial by ordering the sentence on each of his counts to run consecutively to one another. However, our Supreme Court has decided the imposition of consecutive sentences does not implicate a defendants jury rights under the Sixth Amendment. (People v. Black (2007) 41 Cal.4th 799, 820-823.) McCarthy recognizes as much, and he also acknowledges that we are bound by this decision. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) His sole reason for raising the issue is to preserve it in the case of further review. We therefore uphold his sentence.

The judgment is affirmed.

BEDSWORTH, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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^[1] We therefore grant McCarthys request to strike issues I through IV in his opening brief.

^[2] All further statutory references are to the Penal Code.

^[3] See section 186.22, subdivision (a), which states a person is guilty of street terrorism if he or she actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . .