P. v. White

Filed 4/17/07 P. v. White CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed as modified.

Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec, Kenneth N. Sokoler and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Darnell Harold White argues that evidence is insufficient to support his conviction for willful, deliberate and premeditated attempted murder. He also contends that the sentence for his conviction on count 5, unlawful possession of a firearm by a felon, should be stayed pursuant to Penal Code section 654. Finally, he argues the trial court improperly admitted testimony by a gang expert regarding his subjective intent. We stay the sentence on count 5, and otherwise affirm.

FACTUAL AND PROCEDURAL SUMMARY

On October 8, 2004, four men were gathered at a park on the corner of Latham and 53rd Street in Los Angeles. This park is considered the territory of the Bloodstone Villain gang, and its members often hang out there. A gray SUV slowly proceeded toward the men. Appellant, the front passenger of the SUV, positioned his arm outside the window with a gun in hand. Appellant is a member of a rival gang, the Pueblo Bishop Bloods. From approximately 10-14 feet away, he pointed the gun at the four men and fired four shots. The SUV then sped away. Nearby police officers followed.

When officers reached the SUV, they found it crashed into another car, with the engine running and the doors left open. The occupants had fled. A loaded .32-caliber handgun was found on the drivers side floorboard. Appellants fingerprints were found on the passenger side of the exterior of the SUV. Four nine-millimeter shell casings were recovered at the scene of the shooting, which could not have been fired from the .32-caliber handgun.

Immediately after the shooting, Frankie Jones, a member of the Bloodstone Villains, told officers that two Pueblo Bishop Blood members drove up to him in an SUV. Jones stated that both the driver and passenger pointed guns at him, and then the passenger started shooting. Jones identified appellant, a former schoolmate of his, as the passenger, and later submitted a written statement. He also identified appellant from three groups of photographs.

Appellant was charged with attempted willful, deliberate and premeditated murder, pursuant to Penal Code sections 664 and 187[1](count 1); assault with a firearm, pursuant to section 245, subdivision (a)(2) (count 3); and unlawful possession of a firearm by a felon, pursuant to section 12021, subdivision (a)(1) (count 5). Gang and firearm enhancements were alleged. A jury found appellant guilty as charged. During sentencing, the court stayed the sentence on count 3 pursuant to section 654. Appellant filed a timely notice of appeal.

DISCUSSION

I

Appellant argues there is insufficient evidence to support the attempted murder conviction. The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Jones (1990) 51 Cal.3d 294, 314.)

Appellant contends that the record does not support an inference of malice or intent to kill because the gun was not fired at point blank range, because there was no evidence that he was aiming at Jones or anyone else, and because Jones was not shot even though Jones was stationary and in close range.

[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendants acts and the circumstances of the crime. (People v. Smith (2005) 37 Cal.4th 733, 741.) [T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although again, where motive is shown, such evidence will usually be probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive the very act of firing a weapon 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. (Id. at p. 742.)

Appellant did not merely discharge a firearm as he suggests. He entered rival gang territory, armed with a gun, and was slowly driven towards four men. He placed his arm out of the window of the SUV, pointed the gun at Jones and fired four shots towards Jones and three others. The shots were fired at close range, about 10-14 feet. There also was evidence of motive Jones, appellants target, was a member of a rival gang. Further, a gang expert testified that when a gang member shoots someone, they gain respect and prestige within their own gang. This was sufficient evidence of malice and intent to kill. That appellant missed Jones does not establish a less culpable state of mind. (People v. Smith, supra, 37 Cal.4th at p. 741.)

Appellant also summarily argues that there was insufficient evidence of premeditation. The facts we have just recounted constitute sufficient evidence that the attempted murder of Jones was the result of preexisting reflection, rather than unconsidered or rash impulse. (People v. Combs (2004) 34 Cal.4th 821, 850, quoting People v. Bolin (1998) 18 Cal.4th 297, 331-332.) Premeditation and deliberation do not require much time [citation], for [t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. [Citation.] (People v. Lenart (2004) 32 Cal.4th 1107, 1127.) The evidence is sufficient to support the willful, deliberate, and premeditated attempted murder conviction.

II

Appellant argues that the sentence for his conviction on count 5, unlawful possession of a firearm by a felon, should be stayed under section 654. He was sentenced to five years in prison for that conviction, to run concurrently with any other time [he] serves. In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. (People v. Reed (2006) 38 Cal.4th 1224, 1226.) Section 654 states: 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.

If all 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.] If, on the other hand, [the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] (People v. Martin (2005) 133 Cal.App.4th 776, 781.)

Section 654 does not bar punishment for possession of a firearm by a felon where the evidence shows that the defendant possessed the firearm before the crime, with an independent intent. (People v. Jones (2002) 103 Cal.App.4th 1139, 1144.) But the firearm possession must be a separate and distinct offense. (Id. at p. 1147.) If multiple punishment is prohibited by section 654, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. (People v.Reed, supra, 38 Cal.4th at p. 1227.)

In determining whether to impose the sentence on count 5 consecutively or concurrently, the trial court stated: I just dont think there is a sufficient record here to meet the criteria of consecutive sentencing such that I could find that he possessed the firearm separate and apart . . . from the conduct in this case, the shooting at the people at the park. [Appellant], I believe, possessed a firearm because he wanted to shoot Frankie Jones and any other gang member from a different gang that happened to be at this park. I just have trouble, factually, finding that he possessed the firearm for some different purpose. . . .  The criteria affecting concurrent and consecutive sentences is under [California Rules of Court,] rule 4.425, and there are a number of factors, but the one that the court had problems with is the crimes and their objectives were predominately independent of each other, the crimes involved separate acts of violence or threats of violence, and the crimes were committed at different times or separate places. I just cant make the findings that the People want me to make, and that is that these were separate and independent situations. I have trouble with that.

Later, the court reiterated that it is not able to make the factual decision that he possessed the firearm as a felon separate and apart from what happened in count 1, and that is the discharge of a firearm at the people who were in the park. Pursuant to Government Code section 68081, we invited both parties to address the significance of the trial courts statement with respect to the issue of a separate firearm possession offense. Respondent argues that because there was substantial evidence demonstrating that appellant possessed the gun before and after the shooting, section 654 does not require that the sentence for count 5 be stayed. Respondent asserts that the trial courts statement indicates that it may have misconstrued the intent required for [unlawful possession of a firearm by a felon], and that any extraneous remarks should not override the soundness of the courts sentencing determination. Appellant argues that the trial courts statement demonstrates that the court did not find a separate offense.

Whether appellants possession was a separate and distinct offense, with an independent objective, from the attempted murder is primarily a question of fact for the trial court. (See People v. Porter (1987) 194 Cal.App.3d 34, 38.) The court explicitly found that appellants possession was not separate and independent from the attempted murder, and that his sole purpose for the possession was to shoot the men at the park. Respondent does not argue that there is insufficient evidence to support that finding. Based on its own finding, the trial court should have stayed the 5-year sentence on count 5 pursuant to section 654. The requirements of section 654 are mandatory. (People v. Price (1986) 184 Cal.App.3d 1405, 1412.) Section 654 does not allow any multiple punishment, including [concurrent sentences]. (People v. Deloza (1998) 18 Cal.4th 585, 592.) Accordingly, the sentence on count 5 must be modified from a concurrent to a stayed term.

III

The jury found true allegations that appellant committed all three counts for the benefit of a criminal street gang, within the meaning of section 186.22, subdivision (b)(1). Appellant argues that a question posed to Officer Gerald Harden, a gang expert, was improper because it elicited improper opinion testimony regarding appellants subjective intent. The prosecutor asked Harden: If I were to give you the following facts, lets assume Frankie Jones is hanging out at Latham [Park], its 5:30 in the afternoon, an SUV pulls up, the defendant, Darnell White, is in the right passenger seat, he has a [nine]-millimeter handgun, the driver of the car has a .32-millimeter handgun, Frankie Darnell White sticks his hand out the window and, from a distance of about 14 feet, shoots four times at Frankie Jones and then speeds off into the projects, do you have an opinion as to whether or not that crime was committed to promote or benefit the Pueblo Bishop Bloods?

Appellants counsel objected: Im going to object, Your Honor, as to the hypothetical. I the hypothetical its supposed to be a hypothetical, so the information the hypothetical was not relevant. The court overruled the objection. Officer Harden then testified that based on his training and experience and the history between the Pueblo Bishop Bloods and the Bloodstone Villains, it was his opinion that a member of the Pueblo Bishop Bloods would only drive into Bloodstone Villain territory to shoot someone. He also testified that the shooter in the hypothetical was trying to elevate his own status in the gang by put[ting] in work.

Respondent argues that appellant has forfeited this argument because a relevance objection is inadequate to preserve the issue for appeal. We disagree. Appellant is claiming that the hypothetical improperly elicited testimony from Harden regarding appellants subjective intent. Hardens opinion on appellants subjective intent is irrelevant. (See People v. Killebrew (2002) 103 Cal.App.4th 644, 658.) Thus, a relevance objection was sufficient.

[A] trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation, including whether and how a crime was committed to benefit or promote a gang . . . .  (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196, 1197; see also People v. Romero (2006) 140 Cal.App.4th 15, 18-19.) A gang expert may render an opinion that facts assumed to be true in a hypothetical question present a classic example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence. [Citation.] (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4.) Such testimony may address the ultimate issue in the case, but it is improper for an expert to opine on whether a specific individual had specific knowledge or possessed a specific intent. (People v.Killebrew, supra, 103 Cal.App.4th at p. 658.) The trial courts ruling is reviewed for abuse of discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194.)

The hypothetical given to Harden was improper because it was not hypothetical at all; it used the names of appellant and the victim, the name of appellants gang, and several other specific details of the crimes (location, time of day, kind of vehicle, firearm calibers, the distance between the shooter and the victim, etc.). Obviously, there is a difference between testifying about specific persons, and about hypothetical persons. (People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3.) Harden was not asked about a hypothetical gang member or gang culture and habits. Instead, he was essentially asked if it was appellants intent to shoot Jones to promote or benefit the Pueblo Bishop Bloods. This was improper and the objection should not have been overruled.

Nevertheless, the error is not prejudicial. It is not reasonably probable that appellant would have received a more favorable result had the question been asked in proper hypothetical form. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Even if Hardens response to that question had been excluded, there was more than sufficient other evidence that the crimes were committed for the benefit of the Pueblo Bishop Bloods. (Cf. In re Frank S., supra, 141 Cal.App.4th at p. 1199.) Appellant entered rival gang territory and shot at a rival gang member. And through properly phrased questions, Harden testified that it benefited a gang to have a rival gang member killed because gangs survive on numbers. The bigger they are, the stronger they are, the more narcotics they can sell, the more robberies they can commit, the more guns they can get, the more power they can have and the more turf they can claim throughout the area in which they live in. If they start to eliminate and intimidate rival gangs, theyll start to control and move into their neighborhood. He also testified that shooting someone in a public place benefits the reputation of a gang because it shows the community that there is nothing that will stop them, and shows how crazy they are. Thus, the error was harmless.

DISPOSITION

The judgment is modified to stay the sentence on count 5 pursuant to section 654. The superior court clerk is directed to amend the abstract of judgment to reflect that modification, and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

MANELLA, J. SUZUKAWA, J.

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[1] All future statutory references are to the Penal Code unless otherwise indicated.