P. v. Rodriguez and Sanchez

Filed 7/28/10 P. v. Rodriguez and Sanchez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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, Richard F. Toohey, Judge. Affirmed as modified.

Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant Rodriguez.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant Sanchez.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.

* * *

A jury found defendants Juan Ignacio Rodriguez and Luis Armando Sanchez guilty of premeditated attempted murder (Pen. Code,  187, 664, subd. (a); all statutory references are to the Penal Code unless noted) and active participation in a criminal street gang ( 186.22, subd. (a)) committed on December 29, 2005. The jury also found both defendants responsible for discharging a firearm by a gang participant ( 12022.53, subds. (c), (e)(1)), and committing attempted murder to benefit a street gang ( 186.22, subd. (b)(1)). The jury additionally found Rodriguez guilty of carrying a concealed handgun ( 12025, subd. (a)(2), (b)(6)) with a gang enhancement ( 186.22, subd. (b)) and active gang participation ( 186.22, subd. (a)), committed in a separate incident on January 5, 2006.

Sanchez argues there was insufficient evidence to support his attempted murder conviction, and that section 654 requires a stay of the sentence imposed for active participation in a criminal street gang. Rodriguez argues imposition of a 15-year gang enhancement was unauthorized because the jury did not find he personally fired a gun. For the reasons expressed below, we strike the 15-year minimum parole eligibility finding as to both defendants. As modified, we affirm the judgment.

I

Factual and Procedural Background

On the late evening of December 29, 2005, 18-year-old Bishop Street gang member Christina Nevarez stood outside a residence on Bishop Street in Santa Ana with fellow gang members when three or four bicyclists, wearing hooded black sweatshirts, approached from the west. Nevarez later told an investigating officer two of the cyclists rode closer to the north curb line with one of them in the lead. The one in front appeared older, about 32 or 33 years old, 170 pounds, five feet nine inches tall, medium complexion, with a thick mustache. One of the other males looked about 15 years old, 140 to 150 pounds, five feet seven inches tall, with a baby face and a fade hair style. The lead cyclist said something to Nevarezs group, and one of her cohorts responded. Gunshots then rang out and a bullet grazed Nevarezs left leg. She identified the older man as the shooter. The baby-faced individual was in the middle of the street between two other cyclists. Nevarez did not identify anyone in photographic lineups or at trial.

According to Bishop Streets Raul Nunez, three bicyclists rode up wearing all black clothing, including hooded sweatshirts pulled up on their heads, and beanies underneath. They came within 10 feet of Nunezs group. The shooter, perhaps in his 30s or older, got off his bike, and pulled out a gun from a pocket of his sweatshirt. The shots, more than three, came fast and everyone dropped to the ground. Before the shooting, one of the assailants, probably the shooter, said Brook. Someone from Nunezs group responded with Bishop. The Bishop Street gang did not get along with the Brook Street gang, and Nunez explained the exchange meant something is going to happen. The two other bicyclists straddled their bikes about 10 feet behind the shooter and said nothing. Shown a photographic lineup, Nunez selected two of the photographs as looking like the shooter. One of the photographs he selected was Rodriguez.

Bishop Streets Dionicio Armenta saw three bicyclists pass him as he and his girlfriend, Isamar Martinez, walked westbound from the group on Bishop Street towards her home about 200 yards away. The bicyclists stared at him and he decided to hit them up, asking where they were from. One bicyclist wore a light gray hooded sweatshirt. Armenta saw the outline of what appeared to be a strap, a gun with its little tube sticking out from the sweatshirt. Martinez asked him not to hit them up. He called a friend and said the broccolies are going down there. As they rode down the street, the bicyclists removed their hoods. The one wearing the gray sweatshirt got off his bike and fired at least six shots. Armenta identified Rodriguez as the shooter from a photographic lineup.

According to Martinez, one of the bicyclists stared at her when he passed. She knew his sister and recognized him as Luis or Blackie who lived by Brook Street. Another bicyclist wore a gray sweatshirt and had his hand in the front pouch of his sweatshirt. It appeared he was holding a small gun. Martinez identified without hesitation defendant Sanchez as Blackie from a photographic lineup. She heard about five gunshots. She had previously overheard defendant Sanchez say he did not get along with Bishop.

The parties stipulated investigators collected two bullets and six cartridge cases from the area where Nevarez was shot. Officers arrested defendant Rodriguez on the afternoon of January 6, 2006, near Brook and Baker Streets after a foot pursuit. An expert testified the casings found at the crime scene came from the unloaded .22 caliber Glock handgun in Rodriguezs possession at the time of his arrest.

The parties stipulated defendants actively participated in Brook Street, a criminal street gang, on December 29, 2005, and knew members of their gang engaged in a pattern of criminal gang activity. Sanchez admitted during an interview in March 2006 that his nickname was Blackie and he had backed up Brook Street for nine months. The investigator on the case, Detective Matthew McLeod, testified as a gang expert. He opined defendants committed the crime in association with the Brook Street gang, and the shooting benefitted, promoted and furthered the gang because it garnered respect for Brook Street, and instilled fear in rival Bishop Street and community members. McLeod explained guns are a prominent and vital feature in the gang subculture. He defined a gang gun as a weapon that all members are free to use. He also explained that in a confrontation with a rival gang, everyone in the group will know who has possession of the gun so others may quickly recover the weapon should the person holding the weapon go down for some reason. Those who recovered the gun would have the option of using it against their adversaries or removing it from the scene.

Following a trial in December 2008, the jury found defendants guilty as charged. In March 2009, the trial court sentenced both defendants to indeterminate life terms for attempted murder, consecutive 20-year terms for the firearm enhancement, and two-year concurrent terms for active participation in a criminal street gang. Rodriguez also received concurrent terms for the offenses committed on January 5, 2006. The court determined both defendants would not be eligible for parole for at least 15 years.

II

Discussion

A. Substantial Evidence Supports Sanchezs Conviction for Attempted Murder

Sanchez challenges the sufficiency of the evidence to support his conviction for attempted murder. On appeal we consider whether the jurys verdict is supported by substantial evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319). Sufficient evidence is shown when the evidence is substantial, which has been defined as evidence that reasonably inspires confidence and is of solid value. (People v. Morris (1988) 46 Cal.3d 1, 19, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.) We review the evidence in the light most favorable to the jurys verdict, drawing every reasonable inference in favor of the verdict and presuming the existence of every fact reasonably deducible from the evidence. (People v. Tafoya (2007) 42 Cal.4th 147, 170.) Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.] (People v. Perez (1992) 2 Cal.4th 1117, 1124.)

Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.] To be guilty of a crime as an aider and abettor, a person must aid[ ] the [direct] perpetrator by acts or encourage[ ] him [or her] by words or gestures. [Citations.] In addition, except under the natural-and-probable-consequences doctrine [citations] . . . ,^[[1]] the person must give such aid or encouragement with knowledge of the criminal purpose of the [direct] perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the crime in question. [Citations.] When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person must share the specific intent of the [direct] perpetrator, that is to say, the person must know[ ] the full extent of the [direct] perpetrators criminal purpose and [must] give[ ] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrators commission of the crime. [Citation.] Thus, to be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrators intent to kill and with the purpose of facilitating the direct perpetrators accomplishment of the intended killing which means that the person guilty of attempted murder as an aider and abettor must intend to kill. [Citation.] (People v. Lee (2003) 31 Cal.4th 613, 623-624, original italics.) Factors relative to a finding of aiding and abetting are presence at the scene of the crime, companionship, and conduct before and after the offense, including flight. (People v. Mitchell (1984) 183 Cal.App.3d 325, 330; People v. Campbell (1994) 25 Cal.App.4th 402, 409.)

Sanchez contends there was insufficient evidence to sustain a finding he intended to kill.[2] He asserts he was not near codefendant Rodriguez when Rodriguez fired the weapon, and there was no evidence Sanchez said or did anything during the incident. He argues there was no evidence Brook Street members discussed or agreed to assault Bishop Street gang members, that he or any Brook Street member knew Rodriguez carried a gun or planned to use it, or that the Glock was a gang gun as described by gang expert McLeod. He asserts there was no evidence of any prior violent encounters between the gangs involving firearms or other weapons, and complains the gang experts generic testimony was devoid of any particulars. (Original italics.) Although he concedes the jury could infer Rodriguez harbored the specific intent to kill, he argues no evidence demonstrated he shared that intent.

One who intends to kill another does not often declare his state of mind either before, at, or after the moment of the attempted killing. (People v. Lashley (1991) 1 Cal.App.4th 938, 945.) Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt, including the defendants actions and words. (Id. at pp. 945-946.) Whether a defendant possessed the requisite intent to kill is, of course, a question for the trier of fact. While reasonable minds may differ on the resolution of that issue, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] (Id. at p. 946, original italics.)

The evidence does not support Sanchezs contentions he was not near Rodriguez when the latter fired, that he did not do anything, and that he did not know about the gun. Undisputed evidence demonstrated that he, Rodriguez, and others rode as a posse into rival gang territory, uniformed in dark clothing with sweatshirt hoods pulled up. The jury could reasonably infer Sanchez knew about the gun because Armenta and Martinez observed the weapon extending out of Rodriguezs sweatshirt pouch as he passed. Moreover, it was improbable gang members would pedal into a potentially violent confrontation unarmed because of the time it would take to get away on a bicycle, and McLeod explained that during a violent confrontation, everyone in the gang would know who among them held the gun.

As for defendants claim he was not near Rodriguez and did not do anything,[3] the record reflects Sanchez rode beside or just behind Rodriguez into Bishop Street territory and stood by while Rodriguez fired. As McLeod explained, gang members are expected to back each other up when confronting rival gangs. Sanchez admitted to the investigating officer he had backed up Brook Street for nine months. He thus aided Rodriguez by contributing to a show of force, and providing back up and support as needed.

Witnesses provided evidence of the motive prompting Sanchez, Rodriguez, and their cohorts to commit a potentially deadly assault against Bishop Street gang members. Gang expert McLeod described the long-standing hostility between Brook Street and Bishop Street and noted there had been at least 10 violent acts committed between the two gangs. Martinez testified she had previously heard Sanchez say he did not get along with Bishop Street, and Bishop Street members testified to the enmity between the groups. McLeod explained how violent acts engender respect for the gang and enhance the stature of the individual assailant. In the gang subculture, the more violent the act, the more respect gang members accrue.

As for Sanchezs suggestion he might have entertained a specific intent merely to frighten and intimidate Nevarez or her fellow gang members, he and his companions conduct before and during the shooting suggest a more sinister intent. Sanchezs group stealthily entered Bishop Street with Rodriguez carrying a loaded gun, and biked quietly down to where the Bishop gang had gathered. As soon as Rodriguez hit up the Bishop Street members and received a reply confirming their affiliation, he immediately began firing multiple shots from close range at the group. He did not fire into the ground, at a building, or up in the air. (See People v Smith (2005) 37 Cal.4th 733, 741 [act of firing toward a victim at a close range in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill].) From the facts, including the immediacy and ferocity of the attack, and the absence of provocation, the jury could infer this was a planned and coordinated gang attack, and the assailants, including Sanchez, shared an intent to kill a Bishop Street gang member, in this case Nevarez. (See People v. Rodriguez (1999) 20 Cal.4th 1, 12 [appellate court must focus on the evidence that actually existed rather than what is lacking in the prosecutions case]; People v. Nguyen (1993) 21 Cal.App.4th 518, 531-532 [primary actor need not expressly communicate his criminal purpose to the defendant, criminal purpose may be apparent from the circumstances].) Accordingly, sufficient evidence supports Sanchezs conviction for attempted murder.

B. The Trial Court Did Not Err by Declining to Stay Sanchezs Two-Year Concurrent Term for Active Gang Participation

Sanchez also argues the trial court should have stayed ( 654) his two-year concurrent prison term for the offense of active participation in a criminal street gang ( 186.22, subd. (a) (count 4)) because he received a 20-year firearm enhancement under section 12022.53, subdivision (c). We disagree.

Section 186.22, subdivision (a), provides, Any person who 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, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.

Section 12022.53 provides, in relevant part, (c) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) [including attempted murder], personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years. ( 12022.53, subd. (a)(1), (18).) The enhancement provided in section 12022.53, subdivision (e)(1), also applies to any person who is a principal in the commission of an offense if both of the following are pled and proved: [] (A) The person violated subdivision (b) of Section 186.22.^[[4]] [] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d) (e.g., used, discharged or caused great bodily injury or death). Section 12022.53, subdivision (e)(2), specifies that [a]n enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense. (Italics added.)

Section 654 provides, (a) 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.

Defendant notes our Supreme Court has not yet decided whether section 654 applies to sentence enhancements . . . based on the nature of the offense. He also observes that his enhancement, based on vicarious liability for Rodriguezs discharge of a gun in the commission of attempted murder, is an enhancement based on the nature of the offense. Because his enhancement and gang conviction are part and parcel of the same Brook Street gang incident and the same course of conduct by Brook Street gang members that culminated in [the shooting of Nevarez], he contends section 654 applies because his vicarious use of the gun and his active gang participation shared the same objective of disrespecting and intimidating a rival gang.

In People v. Palacios (2007) 41 Cal.4th 720, 727-728, the court examined the enhancements created by section 12022.53 and concluded that in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654. (Palacios, at pp. 727-728.) The court noted section 12022.53 declares that its enhancements shall be applied [n]otwithstandingany other provision of law and as an additional and consecutive term of imprisonment. [Citations.] (Palacios, at pp. 725-726.)

Defendant does not cite, and we have not found, any authority applying section 654 to stay a prison term for active gang participation when the court also imposes a firearm enhancement under section 12022.53, subdivision (c). As noted, section 12022.53 provides the trial court may not impose an enhancement for commission of a felony to benefit a criminal street gang ( 186.22, subd. (b)), in addition to a section 12022.53 enhancement, unless the person personally used or discharged a firearm in the commission of the offense. ( 12022.53, subd. (e)(2).) The section contains no limitation on punishment for the substantive offense of active gang participation. We conclude section 654 does not require a stay of Sanchezs two-year concurrent term for active gang participation.

C. The Trial Court Erred by Imposing a Minimum 15-Year Parole Eligibility Requirement for Attempted Murder as to Both Defendants

Rodriguez argues the trial court lacked authorization to impose a 15‑year gang enhancement under section 186.22, subdivision (b)(5), because the jury did not find he personally used a gun to commit the offense. The Attorney General concedes the trial court erred in making a minimum parole determination as to both defendants and asks us to strike the findings.

Section 186.22, subdivision (b), provides, (1) Except as provided in paragraphs (4) and (5), any 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 or she has been convicted, be punished as follows: [] . . . [] (5) Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.

As noted above, section 12022.53 provides the trial court may not impose a gang enhancement under section 186.22, subdivision (b), unless the defendant personally used or discharged a firearm in the commission of the offense. ( 12022.53, subd. (e)(2).) Although the prosecution argued Rodriguez was the shooter, the prosecution did not submit the personal use issue to the jury. We accept the Attorney Generals concession that section 186.22, subdivision (b)(5), does not apply because the jury did not find either defendant personally used a firearm during the commission of the attempted murder. (People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282; accord People v. Gonzalez (2010) 180 Cal.App.4th 1420; see also People v. Brookfield (2009) 47 Cal.4th 583, 588.)

III

Disposition

As to both defendants, the 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5), is stricken. The trial court is directed to prepare and forward a copy of the corrected abstracts of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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[1] The court refused the prosecutors request to instruct on a natural and probable consequences theory, concluding there was insufficient evidence to support the target offenses suggested by the prosecution.

[2] Sanchez implicitly concedes Martinezs out-of-court identification and testimony placed him at the scene of the shooting.

[3] The court instructed the jury mere knowledge or belief that a crime is being committed or likely to be committed, and presence at the scene of a crime, does not alone make one guilty of aiding and abetting.

[4] Subdivision (b) of section 186.22 provides, in relevant part, that any 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 or she has been convicted, be punished with an additional term of imprisonment, from two years upward depending on the nature of the felony (e.g., serious, violent, committed near school grounds, home invasion robbery, carjacking etc.)