P. v. Senegal

Filed 6/19/07 P. v. Senegal CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Wayne Ellison, Judge.

Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Shannon S. Senegal and codefendant Leron Get Low Williams were convicted of the first degree murder of Michael McGhee, and attempted murder of his brother, Anthony Beard, with enhancements for committing the offenses for the benefit of a criminal street gang and personally discharging a firearm causing great bodily injury or death. On appeal, Senegal challenges the courts imposition of consecutive indeterminate terms for first degree murder and the firearm enhancement. We will affirm.^[1]

STATEMENT OF THE CASE

On June 2, 2005, an information was filed in the Superior Court of Fresno County charging appellant Shannon Shamar Senegal and Leron Williams with count I, murder of Michael Pierre McGhee (Pen. Code,^[2] 187, subd. (a)), and count II, attempted murder of Anthony Beard ( 187/664). As to both counts, it was alleged Senegal and Williams personally discharged a firearm causing great bodily injury or death ( 12022.53, subd. (d)) and the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). Senegal and Williams pleaded not guilty and denied the allegations.

On January 24, 2006, Senegals and Williamss joint jury trial began. On February 1, 2006, the court granted the prosecutions motion to amend the information to conform to proof, and modified the firearm enhancement as to both Senegal and Williams, to reflect a principal discharged a firearm and caused great bodily injury or death in the commission of counts I and II, pursuant to section 12022.53, subdivision (e). The court denied Senegals and Williamss motions for acquittal.

On February 3, 2006, Senegal and Williams were found guilty of count I, first degree murder, and count II, attempted murder, and both enhancements were found true.

On June 2, 2006, Williams filed a motion for new trial, which was joined by Senegal. On June 5, 2006, the prosecution filed opposition. On June 8, 2006, Williams filed a reply to the opposition.

On June 16, 2006, the court denied Senegals and Williamss motion for new trial. As to both Senegal and Williams, the court denied probation, imposed aggregate terms of 50 to life: as to count I, first degree murder, the indeterminate term of 25 years to life, with a consecutive indeterminate term of 25 years to life for the firearm enhancement; as to count II, attempted murder, 25 years to life, plus 25 years to life for the firearm enhancement, with the terms for count II to run concurrent to the terms imposed for count I.^[3]

On June 28, 2006, Senegal filed a timely notice of appeal.

FACTS

On the afternoon of October 9, 2004, family and friends gathered for a barbecue in the front yard of Johnnie Mae Carters house on South Bardell in Fresno. They were celebrating the recent release from prison of Ms. Carters two sons, Michael McGhee and Anthony Beard. Ms. Carters daughter, Chermane Nutt, lived at the house and was present for the party, along with numerous cousins, nieces, and nephews.

Beard was associated with a prison gang, known as Kumi/415, and family members were associated with the local U-Boys gang. The Weller Street Boys was a rival gang to the U-Boys, with their turf located just one street away from South Bardell.

Just as Beard arrived at his mothers house, Trinell Petee Beasley drove up in his black Mustang and stopped in front of Ms. Carters house. Petee remained in his car but greeted Beard and said, oh, look who they let out. They let you out. Petee and Beard briefly talked, and then Petee drove away. At about the same time, Ms. Nutt left the house and went to her sons high school to deliver his football cleats, and then returned to the house and rejoined the barbecue.

Beard and McGhee visited with the other guests in their mothers front yard. About 10 to 15 minutes after Petee left, Beards cousin asked if he knew some guys on the street. Beard had been leaning against a car, with his back to the street. He turned around and saw three men standing south of the house, on the corner of South Bardell and Belgravia. The men were wearing sweatshirts with the hoods on their heads, and they were walking toward the house at a regular pace. Beard turned away and resumed visiting with his family.

Less than one minute later, the three men arrived at Ms. Carters front gate. Two men were wearing black sweatshirts, and one man was wearing a red sweatshirt. The men pulled guns and fired at the group in the front yard, and Beards cousin shouted for everyone to get down. Beard was still leaning against the car, with his side to the front gate. He turned around and saw the three men firing their weapons. They were standing side-by-side and did not say anything as they fired. Beard fell to the ground and tried to take cover. Michael McGhee, Beards brother, grabbed his neck and also fell to the ground. The three gunmen fired lot[s] of shots and fled on foot.

Beards mother and sister were inside the house when the shooting occurred. They thought they heard firecrackers and ran outside. The young nieces and nephews were running and screaming. Ms. Carter ran to Beards side, and Beard said he was hit and he was worried about his brother, McGhee.

Beard suffered gunshot wounds in his right side, left thigh, and the right shin below the knee. Beard was taken to University Medical Center and treated for his wounds. Beards brother, Michael McGhee, suffered multiple gunshot wounds to his chest and neck, and died that day from his wounds.

The police found numerous shell casings at the scene of the shooting, consisting of nine millimeter and .45-caliber ammunition, indicating at least two different weapons were used. Based on the location of the casings, the shots were fired either from the sidewalk or the street, toward the house. The police served search warrants on several individuals associated with the Weller Gang and recovered numerous weapons, but the guns used in the shooting were never located.

The Initial Investigation

Fresno Police Detective Richard Byrd arrived at Ms. Carters house just after the shooting and started the investigation by interviewing Ms. Carter. Ms. Carter stated that after the shooting, Beard told her that Shannon Senegal was one of the gunmen.

Later on the night of the shooting, Detective Byrd interviewed Beard in the emergency room at University Medical Center. Beard was on a gurney and being treated for his wounds. He was a little groggy but able to respond to Byrds questions. Beard told Byrd that Senegal was the gunman in the red sweatshirt, he did not know who the other two gunmen were, but he thought he could probably identify them from photographs. Beard also said he could not tell who actually fired the guns, but he was adamant that Senegal was there.

On October 10, 2004, the day after the shooting, Detective Byrd again interviewed Beard at the hospital. Beard was more alert than the previous day. He said he saw Senegal pull a gun, but he did not know who the other two gunmen were.

On October 28, 2004, Detective Byrd interviewed Beard at the police department. Beard admitted being a drug user but denied membership or association with any gang. Beard admitted members of his family were members of the U-Boy gang. Byrd showed Beard seven different photographic lineups. Beard identified Senegal as a gunman, and said he looked directly at Senegal. Byrd testified that Beard never wavered in his identification of Senegal.

Detective Byrd had received information that one of the Thomas twins, either Adavier or Atavier, might have been one of the gunmen. Byrd determined that Adavier was in custody on the day of the shooting, so he included Ataviers photograph in the lineups. Beard selected Ataviers photograph as a Weller gang member. As their conversation continued, Beard said he heard one of the Thomas twins was present at the shooting, but he could not distinguish between the twins and said he never actually saw one of the twins at the scene.^[4]

Detective Byrd continued to show Beard the photographic lineups. Beard identified Leron Get Low Williams as being with Senegal during the shooting and said he was positive Williams was there, Williams was one of them for sure, but he was not sure if Williams had a gun. This was the first time that Beard said Williams was involved. Beard said he knew Williams because he used to buy drugs from him. Detective Byrd asked why Beard failed to previously mention Williams. Beard replied that he heard rumors on the street that Get Low was involved, and after hearing these rumors it all registered to me that Williams was there. Beard also told Detective Byrd that he did not want to testify because he was afraid of what might happen to him and his family. And he kind of put it in the terms of, you know, the gang thing.

Detective Byrd testified Beard recognized some of the other individuals in the photographic lineups as being associated with the Weller Street area, but Beard said those particular individuals were not involved in the shooting.

Ms. Nutts First Statement

On either November 2, 2004 or December 2, 2004, Detective Byrd conducted a tape-recorded interview with the victims sister, Chermane Nutt. Ms. Nutt stated that prior to the shooting, Petee arrived at Ms. Carters house in his black Ford Mustang and briefly spoke to Beard. Ms. Nutt stated Petee drove away, and she left the barbecue and took her sons cleats to the high school. As she returned to her mothers house, she noticed Petees black car was stopped next to a small brown car on a nearby street, and the occupants of the two vehicles were talking to each other. Ms. Nutt stated there were four people in the small brown car: the driver was Leron Get Low Williams; the passengers were Shannon Senegal; one of the Thomas twins (either Adavier or Atavier), but she could not tell them apart; and an unknown male.

Ms. Nutt stated she returned to her mothers house, and the shots were fired two or three minutes later. Ms. Nutt said she ran out of the house but did not see the gunmen and only saw arms and legs running away. Ms. Nutt tried to help Beard, and Beard said that Senegal was one of the gunmen.

Ms. Nutts Subsequent Statement

As the investigation continued, Detective Byrd was informed that Ms. Nutt might have held back information about the shooting in her previous interview. During the preliminary hearing, Detective Byrd observed people arguing and fighting by the elevators and in the hallway outside the courtroom. Ms. Nutt attended the preliminary hearing.

On June 2, 2005, after the preliminary hearing, Detective Byrd interviewed Ms. Nutt, and she disclosed additional details. Detective Byrd testified that Ms. Nutt again stated she left her mothers house and went to her sons high school to drop off his cleats. As she returned to her mothers house, she saw Petees car stopped next to a brown car, and the occupants of the brown car were Senegal, Get Low Williams, one of the Thomas twins, and an unknown person. In this interview, however, Ms. Nutt stated that Beard arrived at the barbecue after she returned home from her sons high school.

In addition, Ms. Nutt stated that after she returned to her mothers house, she was standing on the front porch and saw four or five individuals at the corner of Florence and South Bardell. They were walking on South Bardell toward the house and the next street, Belgravia. She recognized them as the same individuals who had been in the small brown car and talking to Petee: Senegal, Get Low, and one of the Thomas twins. Ms. Nutt stated that she had seen these men in the neighborhood on prior occasions so their presence was not unusual, and she went inside the house. Within 30 seconds, she heard the sound of firecrackers, which were the gunshots.

Detective Byrd testified Ms. Nutts husband was present during this interview. Detective Byrd asked Ms. Nutt why she previously failed to disclose this information. Ms. Nutt replied that she did not want to get involved or testify in the case, and thought that Beard could be the person who talked to the police. Ms. Nutt stated she did not want to get involved because of being threatened. She was already being threatened, and she was afraid for her family. Ms. Nutts husband asked whether they could enter the witness protection program.

As a result of Ms. Nutts fears and her husbands request, Detective Byrd arranged for her to enter the district attorneys witness relocation program. It was stipulated that the witness relocation program paid the participants relocation expenses, including the first three months of rent.

Williamss Postarrest Statement

On March 9, 2005, Williams was arrested at his house; Monique Thomas was present when he was arrested. Williams did not resist and no weapons were found in his house. Detective Byrd interviewed Williams that day, after advising and obtaining a waiver of the rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

Williams denied current gang membership, and said he had been part of the Six Deuce Diamonds, a Crips gang, when he was in high school, about 10 years ago. The Six Deuce group was associated with the 107 Hoovers. Williams stated that some of his associates from those gangs were now members of rival groups, including the U-Boys. Williams insisted that former Bloods and Crips were able to hang out together without any problems, and the gangs were now associated with the streets.

Williams said he hung around Weller Street because that is where I get my haircut. He did not believe his family claimed any type of gang. Williams said Weller was a cool street because girls were there, only kids hung around there, these people did not wear gang colors, and it was not gang turf. He was not aware of any gang problems on Weller Street. Williams said he did not know why people called him Get Low, and it might have been from dancing at a club. Williams had numerous tattoos with the names of his girlfriends.

Williams said Senegal and Petee were related to him, and he knew the Thomas twins. Williams said he only knew Beard and McGhee because he heard about the shooting, but he did not otherwise know them. Williams heard from a smoker dude that some Asians were responsible for the shooting because they had conflicts with some black people. Williams said he had a brownish gold car, but he was not with Senegal and one of the Thomas twins on the day of the shooting, and he did not recall pulling up to Petees black car and talking to him. Williams could have been on Weller Street that day for a haircut.

Detective Byrd advised Williams that witnesses said he was with Senegal, and they walked up to the South Bardell house and started shooting. Williams said they had the wrong guy. Byrd asked why people would identify Williams if he was not there. Williams again said he had nothing to do with the shooting, but I was probably in the area. I know thats grooming night. Williams was not sure if he heard the gunshots because I hear shots around there all the time. Damn near every time I go get a haircut you hear some shots around here.

[Q] You would have heard these [shots] because these people put you standing right in the group of people that were shooting.

[A] Uh, nah, it couldnt have been me.

Williams again insisted he was not involved with any gangs or the shooting.

Trial Testimony

At trial, Beard admitted he suffered numerous prior convictions, including burglary in 1990, walking away from custody in 1991, misdemeanor giving a false name to an officer in 1992, and second degree burglary, stealing a car, and spousal abuse in 1999. Beard admitted he used cocaine, but testified he did not drink or use drugs on the day of the shooting. Beard admitted being part of the Kumi/415 prison gang, but denied being a member of the U-Boy gang.

Beard testified Williams, Senegal, and another person walked up to the house. All three men pulled guns and started shooting. Beard testified he was certain of his identification of Williams and Senegal. Beard testified he turned and looked at the three men for about five seconds, when they were at the front gate, before the shooting started. Beard tried to hide behind a car but he was wounded. Beard testified that as he was being lifted into the ambulance, his mother and sister asked if he saw who did it, and Beard replied it was Senegal.^[5]

Beard testified he knew Williams as a drug dealer on Weller Street, because Beard purchased drugs from him on numerous occasions. Beard had known Senegal for many years, and knew Senegal was a member of the Weller gang. Beard testified there was a third gunmen, but he did not know that person.

Beard testified that he spoke to Detective Byrd at the hospital, just a few hours after the shooting, and he told Byrd that Senegal was involved. He spoke to Byrd at the hospital the day after the shooting, and again said that Senegal was involved. Beard spoke to Byrd on a third occasion, at the police department, but denied that he made identifications simply based on hearing rumors from family and friends. During this interview, Beard told Byrd that he was able to put a name to one of the other people at his house, and it was Get Low Williams. Beard testified it took him a while to figure out the names because the shooting happened so fast.

On cross-examination, however, Beard admitted his family told him that Get Low was involved.

Q Up until the point when you heard from your family members that Get Low was involved, the fact that he was involved never crossed your mind; is that correct?

A Not at the time, no.

Beard also admitted he purchased drugs from Williams on numerous occasions and knew what he looked like, but he did not identify him to Detective Byrd until his third interview, after his family talked to him about the case.

Beard testified he selected one of the Thomas twins from the photographic lineup, advised Detective Byrd that family members told him that one of the twins might have been involved, and also told Byrd that he now remembered that one of the twins was there. Beard admitted he already knew the twins pretty well before the shooting, because they spent time in the neighborhood and he saw them on Weller Street. Beard also admitted that he never mentioned the twins during his first and second interviews with Detective Byrd, and that he was not certain they were there other than what I was told.

Ms. Nutt testified that Petee drove up to her mothers house, briefly spoke to Beard, and drove away. Ms. Nutt also saw Petee talking to some people in a car, but she could not identify the occupants and did not know whether Williams and Senegal were in the car. When Ms. Nutt returned to the house, she was standing in the front yard for a while, and saw four or more people walking toward the house. Ms. Nutt testified she could not visualize who was walking toward the house. Ms. Nutt went inside and was talking to her mother when she heard the gunshots. She ran outside to protect her young child, and saw her brothers on the ground. Ms. Nutt testified she saw the backs of four people as they ran away and never saw their faces. Ms. Nutt testified that before Beard was placed in an ambulance, he said he knew who it was but did not disclose a name.

Ms. Nutt testified that she recalled being interviewed by Detective Byrd and said Williams could have been one of the people talking to Petee, and she could have said that one of the Thomas twins were there. Ms. Nutt could not recall her statements to Detective Byrd during her two interviews, but testified her memory was more accurate during the interviews than at trial. Ms. Nutt explained her second statement was more accurate than her first statement because she didnt want to be involved in it when she was interviewed the first time. Ms. Nutt testified she was aware of gang activity in the neighborhood between the U-Boys and the Weller gang. She was also aware of the possible consequences against someone who testified in a murder trial against Weller gang members, that theyll take off whoever that goes and testify, but that did not matter to her.

Testimony of Gang Expert

Detective Ron Flowers testified as the prosecutions gang expert. He had been a member of the Fresno Police Department for seven years. He previously served as a patrol officer in southwest Fresno, where gang activity was prevalent. He had been assigned to the Multi-Agency Gang Enforcement Consortium (MAGEC) for the past three years, and dedicated 60 to 70 percent of his time to investigating gang activity in southwest Fresno, particularly African-American gangs. He had approximately 500 contacts with gang members as a patrol officer, and another 150 to 200 contacts as a detective with MAGEC.

Detective Flowers testified his work with MAGEC included validation of gang members, and explained that in California, a person has to meet certain criteria set forth by the state. The state uses 10 validation criteria elements, and Fresno County uses three factors to validate a person as an active gang member, and two factors to validate an associate. These validation factors include whether a person is associating with other gang members or associates, arrested with gang members, has gang tattoos, wears gang clothing, is depicted in photographs with other gang members or displaying gang hand signs, or identified through graffiti or gang monikers. Validation may also occur through a reliable source, such as the Department of Corrections, the Fresno County Jail, or the probation department.

Flowers testified the African-American gangs in southwest Fresno were primarily territorial, with their turf and names based on streets and neighborhoods. There were two large rival gang alliances in southwest Fresno: TWAMP and MUG. Each organization consisted of numerous street gangs which had formed alliances for various reasons, including increasing their strength, thwarting law enforcement, and increasing opportunities for narcotics sales and distribution.

Flowers testified that nearly every street or neighborhood gang in southwest Fresno was aligned with either TWAMP or MUG. These subset gangs were named for their streets. A gang member aligned with MUG would not be spending a lot of time in an area controlled by a gang aligned with TWAMP.

Flowers testified that TWAMP consisted of the following street gangs: Villa Posse, Lee Street, Weller Boys, Lotus Street, Grove Street Posse, Strother Boys, Villain Blood, Young Black Soldiers, and Four Trey (which is primarily a prison gang). Villa Posse was a large group and a widespread gang in Fresno. Villa Posse was considered the parent gang of Weller Boys, Fig Boys, Lotus, and Grove Street Posse. Villa Posse controlled various areas through the smaller hood or street gangs.

The Weller Boys were in close alliance with Villa Posse, and recognized as a street or a hood of the much larger Villa Posse parent gang. The Weller Boys consisted of 23 members, the turf was the 2300 block of South Weller, and a member may identify himself as a Weller Fig or Fig Boy. The Fig Boys were also synonymous with the Weller Boys. Martin Luther King Avenue used to be known as Fig Street, and one street gang was still known as the Fig Boys.

Q A Fig Boy ... if that person was living or spending the bulk of their time currently in Weller Street2300 block of Weller Street, would that person be considered Weller Boy just based on the location and their association with Fig Boy in the past?

A Again, its synonymous with what you had during that time. You had childhood friends on two opposite streets on the same block in the same area who grew up together, who identified themselves in a certain fashion, but pretty much did everything together consistently. In some cases youll have a Weller Boy identify himself as Weller Fig or Fig Boy and vice versa.

Flowers explained that MUG was the rival gang alliance to TWAMP. MUG was an acronym for the individual street gangs called Modoc, U-Boys, and Garrett Street. Modoc was first recognized in 1989, it was a stand alone gang, and evolved from Fink White Deuce. The U-Boys stood for U for Eugenia Street. The Dog Pound was a stand alone gang named for the area itself, and had recently joined with MUG. Another stand alone gang in the area was the Muhammads, also known as Walnut Street Possee or Walnut Street Crips. The Sampsons had converged with MUG, but had slowly been displaced. The gangs which aligned with MUG did so for strength, the ability to gain weapons, and narcotics transactions.

The primary activities of both the U-Boys and the Weller Boys were narcotics sales, along with guns and other violent activities. The sales of narcotics and guns and violence go hand in hand. The neighborhood areas were so small that it was common for members of the rival groups to cross each others paths while in transit, to be attacked while they are out distributing or selling their narcotics. A member of the U-Boys would not be allowed to sell drugs on the turf of the Weller Boys, and some type of violent assault would occur to halt such drugs sales. Flowers testified it was [s]lightly possible for an individual to sell drugs out of a relatives house on the Weller Boys turf, without being part of the Weller Boys, but the gang would probably become suspicious because of the traffic in and out of the house, and that dealer would be forced to leave the area through violence.

Detective Flowers testified that in the six months prior to October 2004, the rivalry between TWAMP and MUG was exacerbated by at least two significant homicides, of Hammod Demmery, a validated member of Modoc, and Darrell Hilliard, a member of Strother. Flowers explained that it would be expected that TWAMP would retaliate against MUG for a homicide of one of its members. If a gang failed to retaliate, it would be a sign of weakness, the gangs established notoriety may decrease, it may be considered a weaker group, and other groups may attack them.

Flowers testified Senegal was a validated member of Weller VP, which is an acronym for Villa Posse, and part of TWAMP. Senegal had been a validated Weller VP since 1996. Flowers had been aware of Senegals presence in Fresno during his patrol work in 2000 or 2001, and personally observed him associating with members of the Fig Boys. When Senegal was arrested in this case, he identified himself as Villa Posse, and he had a West Side Fig tattoo on his arm.

As to Williams, Flowers testified he had a difficult time trying to establish his hood, but determined Williams was a member of Weller VP, Villa Posse, based on the totality of the circumstances. After he reviewed Williamss background, Flowers thought it was pretty easy to conclude Williams was a member of Weller VP. Flowers started with an old picture of Williams, which gave him a clear indication of ... at least foundation to who he belonged with. And I used that to establish not only the group but the associates and the current arrests that has been made or was made. In April 2005, Williams admitted his affiliation with Villa Posse when he was arrested and booked into jail in this case. On cross-examination, Flowers clarified that Williamss self-admission was not one of the reasons I validate him. That was one of the criteria I used for the validation.

Flowers testified Williams associated with other Weller Boys, and allegedly committed the instant offense along with other Weller Boys. Senegal, Williams, and Trinell Petee Beasley were present at the funeral of Darrell Hilliard, a Strother Boy/TWAMP.^[6] Flowers testified that Adavier Thomas was a member of Fig Weller VP, and Atavier Thomas was a member of the Weller Street gang.

Flowers testified about several photographs introduced by the prosecution, which depicted Senegal throwing gang hand signs; Williams, Senegal, and Senegals brother wearing red jerseys, which was the color of choice for most members of Villa Posse or Villain Bloods; Williams and Senegal with a validated member of YBS, a TWAMP gang; and Williams and Senegal with members of Lee Street, another TWAMP gang. Flowers was not aware whether Williams had any gang tattoos.

On cross-examination, Flowers was asked to explain his testimony, that another factor used to validate Williams as an active member of the Weller gang, was because he was arrested with other known gang members.

Q In fact, isnt it true, Detective, that Mr. Williams was arrested in his own home with his girlfriend, and those were the only two people present at the time he was arrested?

A Well, were talking about a specific crime that had an ongoing investigation, obviously. And over time, once it was determined that Mr. Williams was a suspect, he was, in fact, arrested for that case that involved other members of that same group.

Flowers conceded Williams was at home with his girlfriend when he was arrested, and no other gang members were present at that time.

Q So what you are really saying is that suspected or rumored to be involved in a gang crime and then arrested for that is the same thing as being arrested with other gang members? Is that what you are saying?

A Correct.

Q So the mere fact that Mr. Williams is suspected of being involved in a crime that you suspect to be gang related and is later arrested for that case is a validation criteria in your opinion?

A I know Mr. Williams was arrested for his part in a crime that involved other gang members. Mr. Williams was arrested with other gang members.

Q For his part in the crime that were right here determining whether or not hes guilty of, right?

A Right.

Also on cross-examination, Flowers conceded it was possible that an individual booked for a gang-related crime, who might not be a gang member, could claim gang membership for protection while in custody. However, Flowers believed the gang might assault that individual if the false membership claim brought undue attention to that gang from law enforcement officials investigating that offense. It would be very unhealthy for someone to claim gang membership if that person has not been accepted as a member.

Detective Flowers testified that red was the predominant color of the Villa Posse gang. He admitted Williams was wearing blue when he was arrested, the U-Boys predominantly wore blue, and blue was the chosen color of the Crips. Flowers explained color distinctions among TWAMP and MUG:

... I want everyone to keep in mind here in Fresno there is no color dispute. There is no barriers. Youll have a gang with Crips and Bloods within it. Like in this case Villa Posse is a great example.

Flowers cautioned that [y]ou have to be careful not to assume particular clothing is gang-related simply because of the color. Flowers testified the U-Boys wore both red and blue, blue was not a particular factor in Fresno gangs, and the totality of [the] circumstances may give some direction on the individuals status aside from colors.

Flowers testified that Williams admitted membership in the Six Deuce Diamond Crips in 1994, but that gang was synonymous with Villa Posse.

Q Arent there Six Deuce Diamond or former Six Deuce Diamond Crips in the TWAMP side of things and the MUG side of things?

A Yes.

Q So Six Deuce and Villa Posse can be the same thing, but they are not necessarily the same thing?

A Well, again, the term Six Deuce, 107, Hoover Crip, Pyru Blood, these are usually picked up in certain facilities. Six Deuce Diamond Crips predominantly take on that gang affiliation while incarcerated in the California Youth Authority. Again, once they come out they gravitate back to their street or their hood. They are accepted, obviously, because of who they are or where they are from. But they still carry that Six Deuce Diamond, the 107, the Hoover Crip, Pyru Blood and so forth.

Q Because thats what they claim on the inside?

A The inside and outside. Some folks dont make it there, but they do accept it because who they closely associate with. They want to mimic that individual. They want to be like that person. Various reasons.

On further cross-examination, Flowers testified another gang investigator established Williams was a gang member in 1999.

Q What about within the last three years?

A Reliable sources.

Q No. Any other detective in your unit?

A I think detectives Im going to mention knew of Mr. Williams status from those facts established by [Detectives] Duane Freeman and Marcus Gray. [][]

Q So within the last three years and not talking about what may have been the case in 1999, are you aware of other reliable sources that have identified Mr. Williams as a gang member?

A Yes.

Q And those would constitute, essentially, other gang members, correct?

A Um, in one case yes. But the reason I identified those subjects or those persons as a reliable source without a name is because during that timeduring the course of this investigation I haddidnt have the opportunity to actually speak with them. That information was provided to detectiveshomicide detectives who were working the case and who had a specific detail and provided limited information to other detectives such as myself. So for their protection I described him as reliable sources.

Q Those other individuals who identified Mr. Williams as a gang member were themselves, in fact, members of the U-Boy gang, correct?

A One individual. And I believe there were two or three witnesses in that area involved in this case that areor were familiar with his status as a member of Weller, yes.

Flowers conceded gang members were not always reliable sources.

The prosecution introduced documentary evidence of prior offenses committed by gangs within the TWAMP alliance. Flowers testified that Jermaine Levey, a validated member of Villa Posse, was convicted of assault with a deadly weapon ( 245, subd. (a)(1)); and Adavier Thomas, a validated member of Fig Weller VP, was convicted of shooting someone ( 245, subd. (a)(2)). Flowers testified the victims in this caseMichael McGhee and Anthony Beardwere validated members of the U-Boys. As to the instant case, Flowers testified the murder and attempted murder of rival gang members would constitute predicate offenses.

The prosecutor set forth a hypothetical based upon the facts of this case, where validated members of the Weller Boys walk up to a gathering of U-Boys and start shooting without saying anything, and whether that act would have been designed to benefit or assist that particular gang. Detective Flowers testified such an assault would continue the established rivalry but, more importantly, improve the respect and reputation of the gang. Thats the key thing thats important to a gang. If reputation, respect thats compromised, retaliation is almost immediate. Detective Flowerss opinion would be bolstered if the victims were U-Boys, and part of a larger group of U-Boys. It would be unusual for such a large gathering of rivals to place themselves in such a dangerous position. Its probably advantageous for the rival group to take advantage of that opportunity when so many members are present. You know, a greater number of victims would fall and further bolster the establish[ed] notoriety that the gang has had for so many years.

The prosecutor asked another hypothetical, where two members of the Weller Gang, such as Senegal and Williams, were part of the group that walked up and opened fire on a gathering of U-Boys, including McGhee and Beard, whether they would have been acting to benefit the Weller gang. Flowers replied that in such a situation, the shooters individual status would grow, and the gangs shared status would be far extended. It would send a clear message to rivals that they are a force to be reckoned with. The gang would also retaliate against any gang member or family who cooperated with the police or testified in court, they would be called snitches, and they would place themselves in harms way by cooperating, but Byrd explained some people cooperate because they have had enough of the gang lifestyle and culture.

Defense Evidence

Neither Williams nor Senegal testified. A defense investigator testified he interviewed Beard on May 21, 2005. Beard said he saw the gunmen for about three seconds, he paid the most attention to Senegal as he drew his weapon, and he heard rumors that Williams also was there. Beard said he was not able to identify Williams before he heard the rumors from his family, and he was about 70 percent sure of his identification of Williams. Beard said he was not involved in gang activity.

Cody Senegal, Shannon Senegals wife, testified that she recalled the afternoon of October 9, 2004. She was at home with Senegal when she received a telephone call from a family member that there had been a shooting on South Bardell. Ms. Senegal and her husband walked around the corner to the scene. There were a lot of police there. They also met a lot of ladies, including Chermane Nutt. Ms. Senegal testified the women were accusing a lot of people out there, including Shannon. Ms. Senegal tried to explain he was with her during the shooting. Ms. Senegal denied testifying for other family members in unrelated trials.

Dr. Robert Shomer, a psychologist, testified as an eyewitness identification expert. Dr. Shomer testified to his opinion that there is a distinct correlation between the amount of detail a person can provide after an event, and the accuracy of any subsequent identification. Dr. Shomer explained the passage of time adversely affects the accuracy of a persons identification. There are other factors which diminish a witnesss ability to accurately remember, including the presence of a weapon, which tends to cause people to focus on it. A witnesss certainty of identification has no correlation to the accuracy of that identification. A person who identifies a stranger may become more confident of the identification over time, even as the memory diminishes.

Williams and Senegal were convicted of first degree murder of McGhee and attempted murder of Beard, with enhancements for firearm use and committing the offenses for the benefit of a criminal street gang. Williams and Senegal have filed separate appeals and have not joined in the issue(s) raised by the other party.

On appeal Senegal contends the court improperly imposed a consecutive indeterminate term for the section 12022.53, subdivision (e) enhancement and it must be stricken because it was necessarily included in his conviction for first degree murder, multiple punishment violates the constitutional prohibitions against double jeopardy and section 654.

DISCUSSION

IMPOSITION OF CONSECUTIVE INDETERMINATE TERM FOR GUN ENHANCEMENT

Appellant Senegal raises one issue on appeal which is based on the sentence imposed in this case. Senegal was convicted of first degree murder and attempted murder, with the enhancement that he personally and intentionally discharged a handgun that proximately caused great bodily injury or death, pursuant to section 12022.53, subdivision (e). Section 12022.53, subdivision (e) applies if the jury finds the gang enhancement true, and a principal personally and intentionally discharged a handgun as described in section 12022.53, subdivision (d), and requires imposition of an indeterminate term of 25 years to life.

The court imposed the indeterminate term of 25 years to life for count I, first degree murder, with a consecutive indeterminate term of 25 years to life for the enhancement, that he personally and intentionally discharged a handgun that proximately caused great bodily injury or death, pursuant to section 12022.53, subdivisions (d) and (e). Thus, Senegal was essentially sentenced to an indeterminate term pursuant to section 12022.53, subdivision (d).

Senegal contends the court improperly imposed the consecutive indeterminate terms for both first degree murder and the section 12022.53, subdivision (d) enhancement, and the enhancement term must be stricken because it was necessarily included in the first degree murder conviction, multiple punishment violates the constitutional prohibitions against double jeopardy, and the consecutive indeterminate term is barred by Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), People v. Seel (2004) 34 Cal.4th 535 (Seel), and section 654.

Senegals arguments are based on several well-recognized principles. 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 (Reed);  954.) However, [a] judicially created exception to the general rule permitting multiple conviction prohibits multiple convictions based on necessarily included offenses. [Citation.] (Reed, supra, 38 Cal.4th at p. 1227.) In addition, multiple convictions, even with only a single punishment, violate section 654 when they are for a greater and a lesser included offense. (People v. Greene (1973) 34 Cal.App.3d 622, 654.)

Ordinarily, one offense may be necessarily included in another under either of two tests. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.] (Reed, supra, 38 Cal.4th at pp. 1227-1228.)

In Reed, the California Supreme Court clarified that where the validity of multiple convictions is in issue, only the statutory elements test is used to determine whether an offense is necessarily included in another. (Reed, supra, 38 Cal.4th at pp. 1228-1229.) The accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime.... But this purpose has no relevance to deciding whether a defendant may be convicted of multiple charged offenses. [I]t makes no sense to look to the pleading, rather than just the legal elements, in deciding whether conviction of two charged offenses is proper. Concerns about notice are irrelevant when both offenses are separately charged . [Citation.] (Id. at pp. 1229-1230.)

... Courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes. (Reed, supra, 38 Cal.4th at p. 1231.)

Given this background, Senegal asserts the section 12022.53, subdivision (d), enhancement, for personally and intentionally discharging a handgun that proximately caused great bodily injury or death, is a lesser included offense of first degree murder, such that a consecutive indeterminate term cannot be imposed for that enhancement.

There are several problems with Senegals arguments. First, the section 12022.53, subdivision (d) enhancement cannot be treated as a lesser included offense of first degree murder. In People v. Wolcott (1983) 34 Cal.3d 92 (Wolcott), the California Supreme Court considered and rejected a similar argument. In Wolcott, the court considered whether assault with a deadly weapon was a lesser-included offense of robbery with an enhancement for use of a firearm. The defendant argued that the elements of the greater crime plus the enhancement (robbery and firearm use) included all the elements of the lesser crime (assault with a deadly weapon). (Id. at p. 98.)

Wolcott rejected this argument, and held that enhancement allegations are not to be considered for purposes of determining lesser included offenses. (Wolcott, supra, 34 Cal.3d at p. 96.) Wolcott held that a use enhancement is not part of the accusatory pleading for the purpose of defining lesser included offenses. (Ibid.) Wolcott held the elements of the greater offense (robbery) did not include the elements of the lesser (assault with a deadly weapon), because robbery could be committed without attempting to inflict violent injury and without the present ability to do so. (Id. at p. 100.) Wolcott held that the additional consideration of the firearm enhancement did not alter this conclusion, because the enhancement does not prescribe a new offense but merely additional punishment for an offense in which a firearm is used. [Citations.] (Ibid.)

Wolcott rejected the view, then held by a minority of appellate courts, that the accusatory pleading test should apply to make one offense a lesser included offense of another because of an enhancement allegation, when it is not a necessarily included offense as a matter of law, and thus rejected the defendants argument that robbery and the enhancement necessarily included assault with a deadly weapon under the accusatory pleading test. (Wolcott, supra, 34 Cal.3d at pp. 100-101.) Wolcott saw no reason to adopt that course because the weight of authority was against it and trial procedure would become muddled if finders of fact had to make enhancement findings before rendering verdicts on lesser-included offenses. (Id. at p. 101.)

The dissent in Wolcott reached a contrary conclusion, and asserted that enhancement allegations should be treated as part of the accusatory pleading, because [t]o hold otherwise would be to treat a significant factual allegation which appears on the face of the pleading as if it did not exist. (Wolcott, supra, 34 Cal.3d at p. 110 (conc. & dis. opn. of Bird, C. J.).)

Wolcotts holding that enhancements are not to be considered in the lesser-included offense analysis has not been overturned (see, e.g., People v. Parks (2004) 118 Cal.App.4th 1, 6; In re Jose H. (2000) 77 Cal.App.4th 1090, 1094-1095; People v. Delahoussaye (1989) 213 Cal.App.3d 1, 10-11) and we remain obliged to follow it. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)^[7]

Senegal asserts Wolcott has been undermined by Apprendi such that enhancements allegations must be considered in the determination of lesser included offenses. However, there is nothing in that case which undermines Wolcott or requires such a conclusion. Apprendi held that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490; see also Blakely v. California (2004) 542 U.S. 296, 301, 303-304 (Blakely); Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).) Apprendi further held that when the term sentence enhancement is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict. Indeed, it fits squarely within the usual definition of an element of the offense. (Apprendi, supra, 530 U.S. at p. 494, fn. 19; see also Sengpadychith, supra, 26 Cal.4th at p. 326 [Apprendi treated the crime together with its sentence enhancement as the functional equivalent of a single greater crime. [Citation.]].)

Apprendi, Blakely, and the recent ruling in Cunningham, however, say nothing about determining what counts as an element of an offense for purposes of determining when multiple convictions for greater and lesser offenses are permissible, and therefore do not compel the conclusion that due process requires conduct enhancements be treated similarly to offenses for all purposes. In accordance with Apprendi, Blakely, and Cunningham, the jury herein found true beyond a reasonable doubt that Senegal personally and intentionally discharged a firearm proximately causing great bodily injury or death, pursuant to section 12022.53, subdivision (d).

Senegal next asserts the California Supreme Court effectively overruled Wolcott in Seel, supra, 34 Cal.4th 535, but such a conclusion cannot be made in the absence of further authority. In Seel, the appellate court held the evidence was insufficient to prove the section 664, subdivision (a) premeditation allegation in an attempted murder case. (Seel, supra, 34 Cal.4th at pp. 539-540.) Seel relied on Apprendi, and held that principles of federal double jeopardy barred the state from retrying the defendant on the premeditation allegation. (Id. at p. 550.) Seel disapproved an earlier decision that held the section 664, subdivision (a) allegation was a penalty provision, and held the premeditation enhancement in an attempted murder case was not a typical sentencing determination, like a prior conviction allegation, to which double jeopardy protections do not apply. (Seel, supra, 34 Cal.4th at p. 550.)

[W]hen the term sentence enhancement is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict. (Seel, supra, 34 Cal.4th at pp. 546-547, quoting Apprendi, supra, 530 U.S. at p. 494, fn. 19.)

Seel held that in light of Apprendi, a special allegation under section 664, subdivision (a) constitutes the functional equivalent of an element of the greater offense (attempted first degree murder) within the meaning of the federal double jeopardy clause, because it exposes a defendant to a greater punishment than authorized by the jurys verdict, and goes precisely to what happened in the commission of the offense. [Citation.] (Seel, supra, 34 Cal.4th at p. 549.) Apprendi compels the conclusion that section 664(a) constitutes an element of the offense. [Citation.] (Ibid.)

Senegal contends the functional equivalent language from Apprendi and Seel compels the conclusion that an enhancement must be treated as the functional equivalent of an element of any offense in which it is alleged for the purposes of seeking an enhanced sentence. However, there is nothing in Apprendi or Seel which undermines Wolcotts holding that enhancement allegations have no bearing on determining lesser included offenses, or lends greater weight to Wolcotts dissent. Apprendi held that sentencing enhancements must be tried to the jury. Based on Apprendi, Seel held that the premeditation allegation in an attempted murder case constitutes the functional equivalent of an element of the greater offense (attempted first degree murder, rather than attempted second degree murder) within the meaning of the federal double jeopardy clause. Neither the holding or reasoning of Seel conflicts with Wolcotts conclusion that a firearm use enhancement does not prescribe a new offense but merely additional punishment for an offense in which a firearm is used. (Wolcott, supra, 34 Cal.3d at p. 100.)

Nevertheless, even if Senegals analysis is accepted, and the section 12022.53, subdivision (d) enhancement was considered in the lesser included offense analysis, his argument still fails. Under such an argument, the greater offense would be first degree murder with the enhancement for personally and intentionally discharging a firearm proximately causing great bodily injury or death, and the lesser included offense would be first degree murder. Senegal was punished only for the greater offense, not for both the greater and lesser offenses.

Senegal contends that section 654 prohibits the imposition of the consecutive indeterminate term for the section 12022.53, subdivision (d) enhancement. People v. Hutchins (2001) 90 Cal.App.4th 1308 (Hutchins) considered and rejected the identical section 654 argument. [T]he purpose of section 12022.53 is to deter persons from using firearms in the commission of specified felonies. In the case of subdivision (d) of that section, the statutes purpose quite specifically is to deter persons from inflicting great bodily injury or death through the intentional discharge of firearms in the commission of such felonies .... (Hutchins, supra, at p. 1314.)

Clearly, in enacting [section 12022.53] the Legislature intended to mandate the imposition of substantially increased penalties where one of a number of crimes, including homicide, was committed by the use of a firearm. In so doing, the express language of the statute indicates the Legislatures intent that section 654 not apply to suspend or stay execution or imposition of such enhanced penalties. Nor should section 654 logically apply in such a situation. The manner in which any crime is accomplished may vary in innumerable respects. Thus, ... murder may be committed in a myriad of ways, some that involve use of a firearm, and others, such as stabbing, poisoning, or strangling, that do not involve use of this type of weapon. [Citation.] Section 654 is not implicated by the imposition of a sentencing enhancement on a particular manner of committing murderwith the use of a firearmadjudged by society through its legislative representatives as particularly egregious and dangerous. What the Legislature has done by enacting section 12022.53 is not to punish the same single criminal act more than once or in more than one way. Instead, in determining that a criminal offender may receive additional punishment for any single crime committed with a firearm, the Legislature has chosen to enhance or expand the punishment imposed on a single underlying crime, where committed by use of a firearm, in order to deter a particular form of violence judged especially threatening to the social fabric. (Hutchins, supra, 90 Cal.App.4th at pp. 1313-1314.)

Hutchins concluded the law is not punishing [the defendant] twice for the same act; rather, the law is punishing him once each for the components of that act which make it so dangerous and antisocial. (Hutchins, supra, 90 Cal.App.4th at p. 1315.) Other courts have reached similar conclusions when defendants raise section 654 challe