P. v. Ceballos

Filed 6/22/07 P. v. Ceballos 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 in part, reversed in part, and remanded with directions.

Ralph H. Goldsen for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gilette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Willam M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Julio Ceballos of three misdemeanor counts of gang-related brandishing of a deadly weapon (Pen. Code,  186.22, subd. (d); 417, subd. (a)(2)(A)),[1] and felony counts for street terrorism ( 186.22, subd. (a)), gang-related possession of a concealed firearm in a vehicle ( 12025, subd. (a)(3), (b)(3)), and unlawful possession of a firearm by a felon ( 12021, subd. (a)(1)). The jury found defendant committed the firearm possession offenses for the benefit of a criminal street gang. ( 186.22, subd. (b)(1)(A).) Defendant contends his street terrorism conviction must be reversed because that offense occurs only where the offender aids and abets some other felony distinct from any he commits himself. In proscribing street terrorism, however, the Legislature did not intend to punish only persons who demonstrate their active participation in a criminal street gang by aiding and abetting felony offenses, while exempting from punishment their equally or more culpable gang compatriots who directly perpetrate the offense. (People v. Salcido (2007) 149 Cal.App.4th 356, 367-370 (Salcido); People v. Ngoun (2001) 88 Cal.App.4th 432, 435 (Ngoun).)

Alternatively, defendant contends his street terrorism conviction must be reversed because that offense occurs only where the offender aids and abets or perpetrates a felony in which at least one fellow gang member is involved. We reject this contention because the Legislature has linked liability for street terrorism not to the number of gang members who join in any particular criminal act, but to a defendants criminal conduct in furtherance of a street gang . . . . (People v. Castaneda (2000) 23 Cal.4th 743, 752 (Castaneda).) The Legislature intended section 186.22, subdivision (a), to reach those street gang participants whose gang involvement is . . . more than nominal or passive (ibid.), and perpetrating a gang felony singlehandedly or with a compatriot who only commits a misdemeanor meets this threshold. The Attorney General concedes, however, and we agree, section 654 requires that sentencing on the street terrorism conviction must be stayed.

Defendant further contends the trial court erred by: (1) permitting the prosecutions gang expert to offer an opinion on defendants purported subjective knowledge of his gangs criminal activities, and (2) counting two of his prior convictions as separate strikes though they arose from the same act. As we explain below, defendants sentencing contention has no merit. We also explain that even assuming the experts opinion strayed into prohibited territory and counsel rendered ineffective assistance by failing to object, reversal is unwarranted for lack of prejudice. Finally, the Attorney General concedes defendant is entitled to an increase in his presentence conduct credits, and we agree. Accordingly, we reverse in part with directions to the trial court to adjust defendants conduct credits as described herein and to stay defendants street terrorism conviction under section 654, but in all other respects we affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

Around mid-day on December 11, 2004, a black Honda sedan pulled up abruptly in front of the Ortiz familys Santa Ana home. The four men inside the vehicle were flashing gang handsigns and yelling loudly. David Ortiz stood in the driveway filling his truck with gas while his father and brother conversed nearby. The shouts from the Honda drew Mrs. Ortiz and her nephew, Mario, to the front yard as well. The men in the vehicle hollered, Delhi, Delhi gang, and this is Delhi gang area. The driver and front passenger stepped out of the car. Their heads shaved, they appeared menacing. The two were in their late 20s and older than their compatriots in the back seat.

The front passenger advanced towards the Ortiz family and lifted his shirt to expose a gun tucked into his waistband. The driver rounded the back of the vehicle and drew a black semiautomatic handgun on the Ortizes. He grasped the gun with both hands, one on the slide as if ready to chamber a bullet. When the two men reiterated they were from the Delhi gang and issued the challenge, Where are you from, Mr. Ortiz responded by saying they were not gang members and had no weapons. He asked them to leave and, after a tense interval, the driver and passenger complied.

Santa Ana Police Officer John David Oliver arrived within minutes of the gangs departure. He took each family members report of the incident. Later in the day, he learned from a radio bulletin that fellow officers had conducted a vehicle stop of two male Hispanics matching the description of the Ortizes assailants. Defendant was one of the men detained, and Sergio Esquivel was the other. Oliver transported Mario and David to the stop, where they identified defendant as the driver who brandished his weapon at them and Esquivel as the front passenger.

Defendant and Esquivel were tried together. Neither Mario nor David would repeat their identification, and none of the Ortizes could positively identify either man. Each family member claimed a limited memory of the event. Mr. Ortiz feared gang retaliation against his family.

Santa Ana Police Officer Kevin Ruiz testified as the prosecutions gang expert. According to Ruiz, the Delhi gangs criminal activities included murder, attempted murder, robbery, and weapons violations. Ruiz corroborated conviction records showing a Delhi gang member committed a murder in 2002, and another Delhi gang member committed a robbery in 2001, both for the benefit of the Delhi gang. Ruiz also observed that in a guilty plea entered in 1996 defendant admitted he had committed a crime of violence on Delhis behalf, for which he was incarcerated until October 2003.[2]

Ruiz explained that gang members gain respect and status within their gang by committing crimes that engender fear in other gangs and in the community. Consequently, gang members do not conceal their crimes from their cohorts. To the contrary, they brag about them to enhance their reputation. Accordingly, Ruiz opined that an active participant in a gang would generally know of criminal activity committed by his fellow gang members. The prosecutor followed up Ruizs opinion with two questions: Would this apply to defendant Ceballos in this case? and Now, so your opinion is that he would have knowledge of the Delhi criminal street gang activities? Ruiz answered both questions affirmatively.

Defendant did not testify. His defense was that he had been mistakenly identified and therefore the real perpetrator was still at large. Esquivel testified he had been shopping on December 11 and did not call defendant for a ride until approximately 2:30 p.m., which was after the alleged incident occurred. Esquivels brother testified he recovered Esquivels shopping bags from defendants trunk, and he vouched for his siblings responsible nature, employment, substantial earnings, and avoidance of the gang lifestyle. The jury convicted defendant but could not reach a verdict on Esquivels involvement, so the court declared a mistrial on those counts.

Postverdict, the trial court found defendant suffered prior convictions for aiding and abetting both possession of a stolen vehicle and attempted murder on February 17, 1996. Each of these two crimes formed an independent basis to support defendants conviction for active participation in a criminal street gang, i.e., street terrorism ( 186.22, subd. (a)).

At sentencing, defense counsel conceded the street terrorism and attempted murder convictions constituted valid prior strikes, but argued dismissing one or both would still result in a sentence of adequate severity. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) The trial court rejected defendants request and sentenced defendant to a third strike term of 25 years to life on the felon in possession of a firearm count. The court consecutively sentenced defendant to three years for the gang furtherance enhancement and five years for the prior serious felony conviction, for a total prison term of 33 years. The court stayed sentencing under section 654 on the three brandishing counts, but imposed a two-year concurrent sentence on the street terrorism charge. Believing defendant was only entitled to 15 percent presentence custody credit, the court reduced defendants credited time from 504 days to 75 days. Defendant now appeals.

II

DISCUSSION

A. Street Terrorism

1. Liability for Direct Perpetrator of Gang-Related Criminal Conduct

Defendant contends the predicate felonious criminal conduct necessary for conviction under the street terrorism statute ( 186.22, subd. (a)) must consist of conduct that aids and abets commission of a felony by other members of the gang. Thus, according to defendant, one who directly perpetrates a felony offense unlawful possession of a firearm, for example does not commit street terrorism if the possession does not facilitate a distinct felony offense by another gang member. As defendant phrases it: Possession of a firearm may be a means of assisting some other felony, but there must be some independent felony to assist, and in this case, there was not. We are not persuaded by defendants interpretation of section 186.22, subdivision (a).

The statute provides for punishment of [a]ny 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 . . . . ( 186.22, subd. (a), italics added.) The offense is a wobbler punishable as either a misdemeanor or a felony (People v. Robles (2000) 23 Cal.4th 1106, 1113 (Robles)), and here the district attorney chose to prosecute it as a felony.

Subdivision (a) create[s] a substantive offense for active participation in a criminal street gang . . . . (Ngoun, supra, 88 Cal.App.4th at p. 435.) The trial court instructed the jury that [a]ctive participation means that the person must have a relationship with the criminal street gang that is more than in name only, passive, inactive or purely technical. (CALJIC No. 6.50D.) According to defendant, the trial court misinstructed the jury by specifying further that [f]elonious criminal conduct includes: Possession of a firearm by a felon, or [c]ausing to be carried concealed within any vehicle in which is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person, while being an active participant in a criminal street gang. (Ibid.) Defendant contends this language erroneously states the law, according to his theory that some form of aiding and abetting is required. While defense counsel failed to object to the trial courts pattern instruction, we agree with defendant the issue is not waived, since he is entitled to instructions that correctly state the law. ( 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.)

The Court of Appeal in Salcido rejected a challenge identical to defendants argument that only aiding and abetting, as opposed to directly perpetrating a felony weapon possession offense, falls within the statutory meaning of felonious criminal conduct.[3] In Salcido, the defendant did not aid or abet any felony offense committed by other gang members. The prosecutor alleged instead that his felonious criminal conduct consisted of directly perpetrating one or more of the following offenses: illegal possession of a weapon, receiving stolen property, carrying a loaded firearm in a vehicle, and carrying a concealed firearm in a vehicle. (Salcido, supra, 149 Cal.App.4th at p. 369.) As here, the defendant in Salcido relied on an often misinterpreted statement by our Supreme Court in Castaneda: [A] person liable under section 186.22(a) must aid and abet a separate felony offense committed by gang members. (Salcido, supra, at p. 367, quoting Castenada, supra, 23 Cal.4th at p. 750.)

The Salcido court acknowledged the statement in Castenada lent superficial support to Salcidos position, but explained: When read in context, however, it is part of the Supreme Courts explanation that section 186.22, subdivision (a), avoids punishing mere association with a disfavored organization and satisfies the due process requirement of personal guilt (see Scales v. United States (1961) 367 U.S. 203) by criminalizing gang membership only where the defendant bears individual culpability for a separate felony offense committed by gang members. (Castenada, supra, 23 Cal.4th at pp. 749-751.) In other words, because section 186.22, subdivision (a), limits liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gangs pattern of criminal gang activity (Castenada, supra, at p. 749), anyone who violates the statute must be more than a passive gang associate. He or she would also . . . be criminally liable as an aider and abettor to [the] specific crime committed by the gangs members . . . . (Salcido, supra, 149 Cal.App.4th at p. 367.)

Whereas Castenada discussed the crime of gang participation in terms of aiding and abetting, the Salcido court previously had concluded in Ngoun that section 186.22, subdivision (a), also applies to a direct perpetrators gang-related criminal conduct. (Salcido, supra, 149 Cal.App.4th at p. 367.) In Ngoun, the defendant argued insufficient evidence supported his conviction under section 186.22, subdivision (a), because there was no proof he aided or abetted a felonious act committed by another gang member. It was undisputed that if the evidence proved the defendant engaged in any criminal conduct, it was only as the perpetrator of the charged murder and assaults. (Ngoun, supra, 88 Cal.App.4th at pp. 434-435.)
To aid its interpretation of the terms in section 186.22, subdivision (a), the Ngoun court had reviewed dictionary definitions of promote, further, and assist, and concluded: The literal meanings of these critical words squares with the expressed purposes of the lawmakers. An active gang member who directly perpetrates a gang-related offense contributes to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct. Faced with the words the legislators chose, we cannot rationally ascribe to them the intention to deter criminal gang activity by the palpably irrational means of excluding the more culpable and including the less culpable participant in such activity. (Ngoun, supra, 88 Cal.App.4th at p. 436.) Based on Ngoun, the Salcido court rejected the contention that some separate felony is required in addition to the underlying felony committed to further, promote, or assist the gang. (Salcido, supra, 149 Cal.App.4th at p. 368.) We agree with the reasoning in Salcido and Ngoun and, consequently, we find no merit in defendants ill-founded reliance on Castaneda.

Defendants reliance on Robles is similarly misplaced. In Robles, the Supreme Court evaluated section 12031, subdivision (a)(1)(C), which elevates misdemeanor possession of a loaded firearm in public to a felony in certain instances, including when the perpetrator is an active participant in a criminal street gang, as defined in subdivision (a) of [s]ection 186.22 . . . . ( 12031, subd. (a)(1)(C).) The Supreme Court concluded this reference to an active participant in a criminal street gang, as defined in subdivision (a) of [s]ection 186.22 incorporates all the elements of section 186.22, subdivision (a), not just the element of active gang participation. (Robles, supra, 23 Cal.4th at p. 1115.) Accordingly, the court affirmed the magistrates dismissal of a felony gun possession charge because, while the evidence demonstrated the defendants active participation as a gang member, the prosecution presented no evidence of the other requirements of section 186.22(a): knowledge that its members engage in or have engaged in a pattern of criminal gang activity and willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang. (Robles, supra, 23 Cal.4th at p. 1115.)

Defendant contends Robles clearly holds that an active gang member may possess a firearm without violating section 186.22. But the defects in Robles are not present here. The prosecutor presented evidence defendant knew of his gangs pattern of criminal activity, and defendants direct perpetration of weapon offenses satisfied the requisite felonious criminal conduct element. The Supreme Court in Robles decided in 2000 did not consider whether directly perpetrating a weapon offense itself amounts to promot[ing] or further[ing] or assist[ing] felonious gang criminal conduct but, as discussed, we agree with the recently decided cases of Salcido and Ngoun on this score. We therefore conclude defendants substantive and instructional arguments are without merit.

2. Street Terrorism Applies to Gang Members Acting Alone

Alternatively, defendant contends the precise language of the street terrorism statute requires participation in a felony in which two or more fellow gang members are involved. Defendant therefore distinguishes Ngoun because the gang beating administered there did not concern the commission of a weapon possession offense by a gang member acting alone. Defendant concedes the evidence shows he did not act alone here in terrorizing the Ortizes, but argues he still falls outside the terms of section 186.22, subdivision (a), because Esquivel faced charges only for misdemeanor brandishing, rather than a felony. In other words, since the only other potential gang member involved in the charged offenses . . . did not engage in felonious conduct, no street terrorism occurred because the statute reaches only gang by definition, plural conduct, not an individuals. We are not persuaded.

Defendant relies on the statutory element restricting punishment for street terrorism to [a]ny person who willfully promotes, furthers or assists in any felonious criminal conduct by members of that gang . . . . ( 186.22, subd. (a), italics added.) Defendant frames the issue this way: If the Legislature had intended to criminalize any felony act by any gang member at any time . . . , the phrase by members of that gang would be superfluous. In other words, [t]he Legislature could have simply said: 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, shall be punished . . . .

We agree the words, felonious criminal conduct by members of that gang, are not surplusage. These words demonstrate the Legislature did not intend, in defendants phrasing, to criminalize any felony act by any gang member at any time. (See Castaneda, supra, 23 Cal.4th at p. 746 [as with any statute, we strive to ascertain and effectuate the Legislatures intent].) Rather, the limitation to felonious criminal conduct committed by members of that gang ( 186.22, subd. (a)) makes clear that the conduct must serve the gangs ends. (See Castaneda, at p. 752 [street terrorism statute punishes criminal conduct in furtherance of a street gang].) Thus, a gang member who aids and abets commission of a felony by persons who are not members of the gang may fall outside the street terrorism statute, if his or her gang membership is a merely coincidental personal attribute, having no bearing on the crime. But here, the evidence tied defendants gang membership to his possession offense. Ruiz testified as the prosecutions gang expert that having [a firearm] enhances the individual in the gang as well as the gang itself. In sum, the evidence showed defendants gang membership furnished the motivation for his possession, and therefore was not incidental to the offense.

We disagree with defendants gloss that the terms of section 186.22 require more than one gang member to participate in the underlying crime. We reject this contention because the Legislature has linked liability for street terrorism not to the number of gang members who join in any particular criminal act, but to a defendants criminal conduct in furtherance of a street gang . . . . (Castaneda, supra,23 Cal.4th at p.  752.) As the court in Castaneda observed, the Legislature intended section 186.22, subdivision (a), to reach those street gang participants whose gang involvement is . . . more than nominal or passive. (Castaneda, at p. 752.) Perpetrating a gang felony singlehandedly or with a compatriot who only commits a misdemeanor meets this threshold. In short, such active participation demonstrates the offender was not merely peripherally involved with a criminal street gang. (Id. at p. 750.) Accordingly, defendants argument concerning multiple offenders fails because it contravenes the Legislatures intent to punish [a]ny person who feloniously participates in a criminal street gang.

3. Section 654

While the jury properly convicted defendant of street terrorism, the Attorney General concedes, and we agree, section 654 requires a stay of punishment on that count. As discussed, possession of a firearm is the act underlying the street terrorism count, but the trial court imposed punishment for that act in the form of a third strike sentence for defendants felon-in-possession conviction. Section 654, subdivision (a), provides, in pertinent part: 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.

The purpose of section 654 is to prevent multiple punishment for a single act or omission even if the single act or omission violates more than one statute or constitutes more than one crime. (Neal v. State of California (1960) 55 Cal.2d 11, 20.) Under section 654, [i]nsofar as only a single act is charged as the basis for the conviction, . . . the defendant can be punished only once. (Neal, at p. 19.) Besides committing or aiding and abetting felonious criminal conduct, the other two elements of street terrorism gang membership and awareness of the gangs criminal activities turn on the defendants status and knowledge, respectively, rather than additional acts. Section 654 therefore applies to proscribe multiple punishment for defendants single act of possessing a firearm. Consequently, we direct the trial court to stay execution of the two-year concurrent sentence imposed on the street terrorism count.

B. Gang Expert Opinion and Sufficiency of the Evidence

Defendant argues the trial court erred in permitting testimony by the prosecutions gang expert concerning whether defendant knew Delhi members engage in or have engaged in a pattern of criminal activity . . . . ( 186.22, subd. (a).)[4] Defendants attack is two-pronged. First, he asserts the foundation for the experts opinion that defendant knew of this pattern was merely that gang members communicate with each other. As this is typical of all groups of people, and therefore within the common experience of jurors, defendant asserts expert testimony was unwarranted. (See Evid. Code,  720, 801.) Second, defendant contends the expert improperly tread into the jurys province by opining on defendants particular mental state, rather than confining his testimony to hypothetical scenarios or what gang members generally know about each others activities.

Defense counsel did not object on these or other grounds to the experts testimony, but we nevertheless reach defendants contentions in the context of his Sixth Amendment claim of ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668 (Strickland).) As an independent ground for reversal, defendant also asserts insufficient evidence even including the experts opinion supports the conclusion he knew of the Delhi gangs pattern of criminal activities. None of these arguments require reversal.

First, the experts general opinion concerning gang member communication was admissible. Contrary to defendants characterization, the expert did not merely state that gang members communicate with each other, as all groups do. Rather, he explained gang members openly discuss indeed, brag about topics most people would not reveal out of shame or fear of apprehension. Specifically, one might expect a criminal hoping to avoid detection would conceal his offense and say nothing. To the contrary, Ruiz explained that gang members broadcast their misdeeds because doing so enhances their reputation in the gang. Because gang sociology and psychology are outside the common experience of most jurors, the expert testimony was proper. (See, e.g., People v. Gardeley (1996) 14 Cal.4th 605, 617; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370.) Counsel therefore did not render ineffective assistance.

Defendants second contention has merit, but does not require reversal. In People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), the prosecutions gang expert testified to the subjective knowledge and intent of each of the gang members involved in allegedly possessing a gang gun in a vehicle, issues properly reserved to the trier of fact. (Id. at p. 658.) An opinion on these ultimate issues is much different from the expectations of gang members in general when confronted with a specific action. (Ibid.) AsKillebrew explained, testimony educating the jury that more than one gang member may share a gun in some identified circumstances, and that oftentimes gang members traveling together may know if one of their group is armed, would have been admissible. ( Ibid.) But expert testimony is not admissible to establish that a specific individual had specific knowledge or possessed a specific intent. (Ibid.) So it is here. Under Killebrew, the experts opinion that defendant would have knowledge of the Delhi [gangs] criminal . . . activities went too far.

We conclude, however, that defense counsels failure to object did not prejudice defendant because ample other evidence established he knew of his gangs criminal activities. In particular, the jury knew defendant admitted in his 1996 plea that he himself participated in the Delhi gangs criminal activities, committing a crime of violence that landed him in prison for almost seven years, between 1996 and 2003.

The evidence also established defendant was no Delhi novice. In complying with gang member registration requirements soon after he exited prison at age 27, defendant admitted he had claimed Delhi since I was 17, a long time. His age, longevity in the gang, and leadership role in the present offense together with the admissible evidence gang members are generally aware of their compatriots offenses strongly suggested defendant was privy to knowledge of his gangs criminal activities, including for example the murder and robbery Ruiz described. In light of this evidence, it is not reasonably probable (Strickland, supra, 466 U.S. at p. 686) a more favorable verdict would have resulted if defense counsel objected to the experts errant opinion on defendants specific knowledge. Reversal is therefore unwarranted on this ground. The foregoing discussion also demonstrates substantial evidence supports the jurys conclusion defendant knew of the Delhi gangs criminal activities; consequently, defendants contrary argument is without merit.

C. Strikes

Defendant contends the trial court abused its discretion by failing to strike one of his prior convictions because both convictions arose from a single act. He also argues imposition of sentence based on two strikes arising from a single act is fundamentally unfair and therefore violates due process. And he claims his trial attorney rendered ineffective assistance by failing to raise the issue below.

Defendant correctly notes that the Supreme Court in People v. Benson (1998) 18 Cal.4th 24 suggested, without deciding, that the failure to strike one of two strike convictions arising from a single act may constitute an abuse of discretion. (Id. at p. 36, fn. 8; see People v. Burgos (2004) 117 Cal.App.4th 1209, 1214-1217 [abuse of discretion to refuse to strike either attempted carjacking or attempted robbery prior arising from same act].) The factual predicate for defendants argument, however, is erroneous: the record demonstrates his prior convictions did not arise from a single act.

In an attachment to his 1996 guilty plea, defendant admitted he aided and abetted three other Delhi gang members in both an attempted murder and in possessing a stolen Honda. [5] He also admitted committing street terrorism based on each of these acts. A conviction for receiving stolen property does not by itself constitute a serious or violent offense, and therefore that conviction did not count as a strike in the present proceedings, but the street terrorism count based on possession of the stolen Honda qualified as a strike. The attempted murder prior counted as the other strike.

Defendant contends the two strikes arose from appellants presence as a passenger in a car from which shots were fired by another gang member. Defendants characterization of his participation as a single act warranting a single strike overlooks that the elements of attempted murder and possessing stolen property involve different acts. By any measure, attempted murder and possessing stolen property do not arise from the same acts, and therefore defendants single act theory is without merit. Because defendant aided and abetted offenses comprised of distinct acts and elements, the trial court did not violate due process in failing to strike a strike. Simply put, the court could reasonably conclude aiding and abetting multiple offenses warranted a harsher sentence than if defendant had participated in committing only a single criminal act. In other words, fundamental fairness did not require sentencing defendant as if he had only engaged in one bad act, when he actually assisted two.

Additionally, contrary to defendants argument, trial counsel raised the single act theory below, arguing defendant was simply the passenger in the back seat of a vehicle where violence occurred from that vehicle, which constituted one act for which he received . . . two strikes . . . . Cognizant of defendants argument, the trial court properly exercised its discretion to decline to dismiss a strike, since defendants ongoing pattern of committing gang crimes brought him well within the anti-recidivist spirit of the Three Strikes Law. (People v. Williams (1998) 17 Cal.4th 148, 161; Romero, supra, 13 Cal.4th at pp. 504, 531.)

D. Presentence Conduct Credits

The Attorney General concedes, and we agree, the trial court erred in limiting defendants presentence conduct credit to 15 percent of the days in actual custody pursuant to section 2933.1. That section applies where there is a current conviction for an offense listed in section 667.5, subdivision (c), which was not the case here. Accordingly, defendant is entitled to credit at the 50 percent rate established by section 4019, i.e., 252 days.

III

DISPOSITION

The trial court is directed stay defendants conviction for street terrorism pursuant to section 654 and to increase defendants presentence conduct credits to 252 days. The trial court shall modify the abstract of judgment accordingly, and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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

[2] The jury was not informed the crime was attempted murder.

[3] The issue is currently pending before the Supreme Court in review of our opinion in People v. Lamas (S145231, rev. granted Nov. 1, 2006).

[4] As defendant recognizes, his challenge necessarily encompasses his conviction for gang-related possession of a concealed weapon in a vehicle ( 12025, subd. (a)(3), (b)(3)) because that offense, like the one in Robles, incorporates all the elements of section 186.22, subdivision (a). (See Robles, supra, 23 Cal.4th at p. 1115.)

[5] We grant defendants request for judicial notice of his plea and other documents in the court file in Orange County Superior Court No. 96CF3520. (Evid. Code,  459.)