P. v. Servin

Filed 4/6/07 P. v. Servin 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Richard M. King, Judge. Affirmed as modified.

Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Defendant Rafael Servin was convicted of first degree murder and street terrorism. The jury found true the special circumstance alleging the murder had been committed while defendant was an active gang member and was carried out to further the gangs criminal activities. The jury also found true several conduct enhancements, including a gang enhancement. In light of the true finding on the special circumstance, the trial court sentenced defendant to life in prison without the possibility of parole on the murder conviction; the court also sentenced defendant to the upper term of three years on the street gang terrorism conviction. (The court also imposed a consecutive sentence of 25 years to life on one of the enhancements; this portion of the sentence is not challenged on appeal.)

Defendant argues the trial court abused its discretion in denying a motion to sever the street terrorism charge and bifurcate the gang enhancement from the murder charge. We disagree. The gang evidence would have been cross-admissible in a separate trial on the murder charge because it was relevant to issues of motive, premeditation, and deliberation. The gang evidence was no more likely to inflame the jury than the evidence of the murder itself, and the case against defendant for murder was strong. Even if the trial court had abused its discretion, we would find that error harmless, given the strength of the evidence against defendant on the murder charge.

Defendant next argues the trial court imposed an unlawful sentence under Penal Code section 654 by failing to stay imposition of the sentence on the street terrorism conviction. (All further statutory references are to the Penal Code.) We conclude that the jurys true finding on the special circumstance on the murder conviction means the intent and objective for both murder and street terrorism were the same. Therefore, under section 654, imposition of the sentence on the street terrorism conviction must be stayed.

Finally, defendant argues the trial court erred by retroactively imposing a security fee. We agree. Section 1465.8, which authorizes the security fee, was enacted after defendant committed these crimes. Section 3 prohibits retroactive application of any part of the Penal Code, absent an express declaration of retroactivity. No such declaration exists in section 1465.8. Therefore, the security fee must be stricken.

Statement of Facts and Procedural History

On March 22, 2003, Victor Ruiz and Noemi Robles were driving to Ruizs mothers apartment, when their car ran over something in the road. Robles saw someone walk from the sidewalk into the street, reach down for something, and return to the sidewalk. After Ruiz parked the car, he and Robles walked back down the street. They saw two young men near the place where the car had run over the object in the road. Ruiz asked the men what they were doing. One of them responded, whats it to you? Why do you care? Ruiz replied, whats it to me, is that somebody is going to end up getting hurt. The man responded, why do you care? It doesnt matter. The man said he would bet $10 he could kick Ruizs butt. Ruiz countered, Ill see your ten. At Robless urging, Ruiz walked away.

After Ruiz and Robles were inside the apartment, Ruiz decided to move the car, and went back outside. After several minutes, Robles went to look for him. Robles saw Ruiz and the two young men in the street. As Robles approached, she saw one of the men run away, then heard a gunshot and saw the other man running away with a shotgun. At trial, Robles identified defendant as the young man with the shotgun. Ruiz was lying in an alley, having suffered a fatal shotgun wound to the head.

On the evening of Ruizs murder, defendant and his friend, Mario Fernandez, were visiting defendants sister and brother-in-law, Maria and Manuel Sierra. (We will refer to Maria and Manuel by their first names to avoid confusion, and intend no disrespect.) Defendant and Fernandez had brought a shotgun with them to the Sierras home. From inside the house, Maria saw defendant and Fernandez outside sitting by a tree, and later saw defendant standing and confronting Ruiz and Robles in the street. A short time later, Maria again looked out the window and saw defendant, Fernandez, and Ruiz in the alley. Maria saw defendant shoot a big gun and heard a gunshot. Manuel also heard the gunshot. When defendant and Fernandez came back into the Sierras home, they did not have the shotgun with them; however, defendant was holding a shotgun shell. (Maria and Manuel were charged as accessories after the fact. They agreed to testify against defendant in exchange for lenient sentences.)

The police found a shotgun near the scene of the shooting. Defendants DNA was on the shotgun. Shotgun shell fragments and pellets recovered from Ruizs skull during an autopsy were consistent with having been fired from that shotgun.

On the sidewalk at the scene, police investigators found a steel pipe; a shotgun shell and a beer bottle were also found nearby. Defendants fingerprint and DNA were found on the beer bottle.

An expert witness on gangs identified defendant and Fernandez as active members of the Bassett criminal street gang. After defendant was arrested, he waived his rights and admitted to the police he had been walked into the Bassett gang two years before Ruizs murder. The expert testified that gangs primary activities included murder, attempted murder, assault with a deadly weapon, shooting, robbery, car theft, possession of weapons, narcotics sales, and witness intimidation. The gang expert opined that defendant murdered Ruiz to benefit his gang, because Ruiz did not show defendant proper respect and because the murder would enhance defendants status and the status of his gang in the community.

Defendant and Fernandez were charged with first degree murder (Pen. Code,  187, subd. (a) [count 1]), and street terrorism (id.,  186.22, subd. (a) [count 2]). The information alleged as a special circumstance that the murder had been committed while defendant was an active participant in a criminal street gang and was carried out to further the gangs activities. (Id.,  190.2, subd. (a)(22).) The information also alleged as enhancements to count 1: defendant was a gang member who discharged a firearm causing great bodily injury (id.,  12022.53, subds. (d) & (e)(1)); he personally discharged a firearm, causing death (id.,  12022.53, subd. (d)); and the murder was committed to promote, further, or assist in criminal conduct by a street gang (id.,  186.22, subd. (b)(1)). Defendant and Fernandez were tried separately.

A jury convicted defendant of both counts, and found the special circumstance and all enhancement allegations to be true. Defendant was sentenced to life in prison without the possibility of parole on count 1, a consecutive sentence of 25 years to life for the firearm discharge by a gang member enhancement, and a consecutive sentence of 3 years the upper term on count 2. Punishment was stayed on the personal discharge of a firearm enhancement and the gang enhancement. Defendant appealed.

Discussion

I.

The trial court did not abuse its discretion by denying the motion to sever the street terrorism charge and bifurcate the gang enhancement from the murder charge. Even if the court had done so, any error would have been harmless.

Before trial, then codefendant Fernandez moved to sever the substantive street terrorism charge from the murder charge, and to bifurcate the gang enhancement. Defendant joined in the motion, and the People filed written opposition. The trial court denied the motion because the gang evidence would be relevant to the issues of motive, premeditation, and deliberation on the murder charge. The court found the probative value of the gang evidence would not be substantially outweighed by the probability its admission would create a substantial danger of undue prejudice.

We review the trial courts denial of the motion for abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 [bifurcation of enhancement]; People v. Marshall (1997) 15 Cal.4th 1, 27 [severance of charges].) The standard for reversing a trial courts order denying severance or bifurcation is high. When the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish an abuse of discretion by the trial court. [Citations.] We review the trial courts decision in light of the showings then made and the facts then known. [Citation.] (People v. Marshall, supra, at p. 27.) [A] party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other‑crimes evidence in a severed trial. (People v. Arias (1996) 13 Cal.4th 92, 127.) Reversal of an order denying a motion to sever requires the defendant to show the joinder of the charges resulted in gross unfairness, amounting to a denial of due process. [Citation.] (Ibid.)

The key factors in considering a motion to sever are: (1) would the evidence of the crimes be cross‑admissible in separate trials; (2) are some of the charges unusually likely to inflame the jury against the defendant; [and] (3) has a weak case been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses. (People v. Marshall, supra, 15 Cal.4th at pp. 27-28.)

Here, the trial court correctly determined that the evidence relating to the street terrorism charge and the gang enhancement would be cross-admissible in the murder case, because that evidence was relevant to the issues of motive, premeditation, and deliberation. (People v. Hernandez, supra, 33 Cal.4th at p. 1049; People v. Williams (1997) 16 Cal.4th 153, 193-194.) The evidence of defendants gang membership and the manner in which gangs respond to perceived acts of disrespect was relevant to prove motive, since the jury might have wondered why defendant would kill Ruiz over so small a perceived slight. The jury was instructed that the presence of a motive may tend to establish guilt, while lack of motive may tend to establish innocence. (CALJIC No. 2.51.)

It is unlikely the street terrorism charge and gang evidence would have inflamed the jury against defendant any more than the facts of the murder itself. The jury was given the limiting instructions of CALJIC Nos. 2.50 and 2.50.1 regarding the use of the gang evidence, in any event.

Even without the gang-related evidence, the case against defendant for Ruizs murder was strong. (See People v. Burnell (2005) 132 Cal.App.4th 938, 948.) At trial, Robles identified defendant as the man she saw with the shotgun. Maria saw defendant shoot the gun while he was with Ruiz. Manuel testified defendant told him he had a shotgun with him the evening of Ruizs murder. Manuel heard a shotgun blast, after which defendant and Fernandez came back into the Sierras home; defendant was carrying a shotgun shell. Defendants DNA was on the shotgun found near the scene of Ruizs murder. Shotgun pellets removed from Ruizs skull during an autopsy were consistent with having been fired from that shotgun. The trial court did not abuse its discretion by denying the motion to sever and/or bifurcate.

Even if the trial court erred by refusing to sever the street terrorism charge and bifurcate the gang enhancement, the error was harmless. It is not reasonably probable the outcome would have been more favorable to defendant if the charges had been severed, or the gang enhancement bifurcated, given the strength of the evidence identified, ante. (People v. Pinholster (1992) 1 Cal.4th 865, 931-932; People v. Watson (1956) 46 Cal.2d 818, 836.)

II.

Imposition of sentence on count 2 must be stayed under section 654.

Defendant contends the trial court should have stayed imposition of the sentence on count 2 because it punished him for the same conduct as count 1, thus violating section 654s proscription against multiple punishments. We agree.

Section 654 prohibits multiple sentences where a single act violates more than one statute, or where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct with a single intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19-20.) To be convicted of street terrorism under section 186.22, subdivision (a), a defendant must have the intent and objective to actively participate in a criminal street gang, but need not have the intent to personally commit any specific felony. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467.)

When a defendant commits a felony for the benefit of a criminal street gang, he or she may have two independent but simultaneous objectives to commit the underlying felony and to benefit the gang. (People v. Ferraez (2003) 112 Cal.App.4th 925, 935; People v. Herrera, supra, at p. 1468.) Thus, a defendant may be punished both for violating section 186.22, subdivision (a) and for the underlying felony committed for the benefit of the gang, without violating section 654, when the two offenses involve different objectives. (People v. Ferraez, supra, at p. 935; People v. Herrera, supra, at pp. 1467-1468.) However, the question before us is different: Does the true finding on the special circumstance make the objectives of the street terrorism count and the underlying felony murder the same?

The special circumstance statute at issue in this case reads as follows: The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: [] . . . [] (22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang. ( 190.2, subd. (a)(22), italics added.)

The street terrorism statute reads as follows: 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. ( 186.22, subd. (a), italics added.)

Defendant argues that because of the true finding on the special circumstance allegation, he could not have entertained two independent objectives in connection with counts 1 and 2, and therefore cannot be punished for both. A comparison of the language of the two statutes shows defendants argument is well-taken. To find the special circumstance allegation true, the jury must have found defendant murdered Ruiz to further the criminal activities of the Bassett street gang. This adds to the objective of murder a new objective, which is the same as defendants objective in violating section 186.22, subdivision (a) to promote or further the criminal activities of the Bassett street gang.

The Attorney General argues the special circumstance finding did not increase defendants potential punishment for the first degree murder of Ruiz. But that argument misses the point. Our concern is whether, in committing two crimes at the same time, defendant had one intent and objective, or two. The special circumstance finding means that when murdering Ruiz, defendant not only had the intent to kill him, but also the intent to further the criminal activities of the gang and its members. Thus, there was but one objective to the two separate crimes, and defendant cannot be punished for both under section 654.

The Attorney General asks us to remand the matter for resentencing, to allow the trial court to exercise its discretion under section 654. Section 654 does not invest the trial court with discretion, however. It prohibits multiple punishments. Because we have concluded the sentence imposed did not comply with section 654, we direct that a correct sentence be imposed, and affirm the judgment as modified.

III.

The section 1465.8 security fee may not be retroactively applied to defendant.

Defendant argues the imposition of a security fee under section 1465.8, subdivision (a) violates the ex post facto law and the statutory prohibition against retroactive application of statutes. Section 1465.8, subdivision (a)(1) provides: To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The statute became operative on August 17, 2003 about five months after defendant committed the crimes at issue on this appeal, but before his trial.

Retroactive imposition of the security fee is barred by statute. Section 3 provides: No part of [the Penal Code] is retroactive, unless expressly so declared. Nothing in section 1465.8 expresses the Legislatures intent to apply it retroactively to pending cases. The Attorney General relies on People v. Wallace (2004) 120 Cal.App.4th 867, 870, in which the appellate court concluded section 1465.8, subdivision (a)(1) did not violate the ex post facto provisions of the United States and California Constitutions when applied to convictions for crimes committed before the effective date of the statute. Because we decide this case based on section 3s prohibition against retroactive application of the Penal Code, we need not address the issue of violation of the ex post facto laws.We note that the California Supreme Court is currently considering the impact of both the ex post facto laws and section 3 on retroactive application of section 1465.8. (People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006, S142508.)

Therefore, we direct the trial court to strike the security fee in this case.

Disposition

The imposition of a security fee under Penal Code section 1465.8, subdivision (a), is stricken. The trial court is directed to prepare an amended abstract of judgment staying imposition of sentence on count 2, and to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

OLEARY, J.

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