P. v. Navarro

Filed 8/23/07 P. v. Navarro CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Craig E. Veals, Judge. Modified and affirmed.

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

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

_________________

Oscar Navarro appeals from his conviction of two counts of first degree murder with special circumstances and one count of attempted murder. He argues that the trial court abused its discretion in allowing testimony from a gang expert regarding the mental state of a gang member in the appellants position, and in telling the jury that it was perceptive in finding an issue raised by the evidence. Appellant also challenges imposition of additional terms for use of a firearm and the decision to stay lesser firearm enhancements. Finally, he argues that a parole revocation fine was improperly imposed. We conclude that the parole revocation fine must be stricken; in all other respects, we affirm.

FACTUAL AND PROCEDURAL SUMMARY

On December 20, 2004 at around noon, Joel Miranda, and brothers Alvaro and Rafael Caldera (Alvaro and Rafael) stopped to fix a flat tire on their car at G.T.O. Tires in East Los Angeles. Miranda, Alvaro and Rafael were members of the Little Valley Gang. The tire shop was in an area frequented by the Juarez Maravilla, a rival gang.

While the tire was being fixed, appellant, on a bicycle, approached the three men. Alvaro started to mad dog appellant: he stared at him not in a good way. The three men yelled out the name of their gang, Little Valley. They were unarmed and had nothing in their hands. Appellant placed his hand in his waistband; his jersey covered it. About 10 seconds later, Rafael yelled, Come out with it already. Appellant pulled out a gun and fired at least three shots at Miranda, Alvaro and Rafael. They ran in different directions. Appellant yelled, Maravilla and then rode off on his bike. Rafael and Alvaro were each killed by a gunshot wound to the chest. Miranda was unharmed and testified at trial.

The principal defense was self-defense, both reasonable, and honest but unreasonable. Appellant claimed his life was in danger because there was a green light out for other gangs to kill Maravilla members. He claimed he bought a handgun to protect himself after being shot by a rival while spray painting earlier that year. Appellant claimed he was challenged and had no choice but to shoot because he thought the three men were armed and were going to kill him.

Appellant was found guilty of two counts of first degree murder pursuant to Penal Code section 187, subdivision (a),[1]and one count of attempted murder, in violation of sections 664/187, subdivision (a). The jury also found two special circumstances to be true: (1) the murders were carried out to further the activities of a criminal street gang, pursuant to section 190.2, subdivision (a)(22); and (2) multiple murders, pursuant to section 190.2, subdivision (a)(3). As to all counts, the jury found true the special circumstances that appellant personally and intentionally discharged a firearm ( 12022.53, subds. (b), (c), and (d)) and committed the crimes for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(A)).

The trial court sentenced appellant to two consecutive life terms for the murders, each without possibility of parole. The court imposed an aggregate sentence of 85 years to life for the attempted murder and the firearm enhancements. The trial court also imposed a $200 restitution fine, pursuant to section 1202.4, subdivision (b) and a $200 parole revocation fine pursuant to section 1202.45. This appeal followed.

DISCUSSION

I

Appellant contends the trial court abused its discretion in allowing the prosecution to present testimony from a gang expert regarding the mental state of a gang member in appellants position. Evidence Code section 801 provides: If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. The culture and habits of criminal street gangs are sufficiently beyond common experience and meet this criterion. (People v. Gardeley (1996) 14 Cal.4th 605, 617.) Thus, to prove the elements of a criminal street gang enhancement, the prosecution may present testimony from a gang expert. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.)

At trial, Detective Ignatio Lugo, a gang investigator with the Los Angeles Sheriffs Department, testified about the behavior of criminal street gangs. The prosecutor asked him, Did it appear this individual was worried about his own safety? Defense counsel objected on the ground this called for speculation. The prosecution responded, Im not asking for his mind, Im asking given the facts. The court overruled the objection but asked the prosecution to restate the question.

The prosecutor then asked, Given the circumstances of these facts and hypothetically speaking a background similar to individuals in the defendants position, if you were to ride up, get a challenge, he looks back, he rides up toward the victims. Do you think that individual in your opinion in speaking with all these gang members, that individual is afraid or fears for his safety as he approached these individuals? Detective Lugo responded, No. On a confrontation like that, either the individual is completely what you consider like a crazy guy, a psycho. Will take on three challenges at a fist fight or he believes he had some type of advantage over the three. Detective Lugo also stated that he had seen cases where one armed gang member engaged other unarmed individuals.

Generally, an expert may render opinion testimony on the basis of facts given in a hypothetical question that asks the expert to assume their truth. [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence, however. (People v. Gardeley, supra, 14 Cal.4th at p. 618.) Detective Lugo was asked to provide opinion testimony regarding a hypothetical gang member in appellants position. The hypothetical question was based on facts shown by the evidence. Based on his knowledge of gang culture, Detective Lugo answered regarding the mental state of a hypothetical gang member encountering a similar set of circumstances.

Appellant claims that Detective Lugos testimony improperly speculated about appellants mental state at the time of the crime. Citing People v. Killebrew (2002) 103 Cal.App.4th 644, 658 (Killebrew), appellant argues that a gang expert may not testify as to an individuals subjective knowledge or specific intent. In Killebrew, the expert opined about the specific knowledge of multiple gang members in a vehicle and their constructive possession of a handgun. In this case, Detective Lugos testimony merely informed the jury about the mental state of a hypothetical gang member in a similar situation. Detective Lugo answered based on his knowledge of gang members and gang culture in general; he did not give an opinion about appellants own mental state. We find no error.

Even if we were to conclude that the opinion was speculative, any error was harmless. Unlike the situation in Killebrew, where the gang expert provided the only evidence to establish elements of the crime, in this case other evidence established appellants intent to kill for the benefit of a criminal street gang. Appellant admitted during trial that he was a member of the Juarez Maravilla criminal street gang. He admitted that members of the gang would kill members of a rival gang to protect his gangs territory. Appellant yelled, Maravilla before and after shooting the three men. Had the court stricken the challenged testimony, there is no reasonable probability that the jury would have returned a verdict more favorable to defendant. (People v. Price (1991) 1 Cal.4th 324, 433.)

II

Appellant claims that in complimenting the jury on its perceptiveness with regard to its question on the attempted murder count, the court expressed a position favoring the prosecution. During deliberations, the jury sent out the following question: Must it have been shown that a specific individual was the intended target of the act (i.e. Joel Miranda), or merely that the attempt was willfully made against any of a set of possible targets? After conferring with counsel, the court responded by reading CALJIC No. 8.66.1,[2]the kill zone instruction.

Before reading the instruction, the court commented to the jury: And you actually have raised an issue that, although its certainly raised by the evidence in this case, it was not incorporated in our instructions. Youre very perceptive. And as a result Ill give you an additional instruction which arguably deals with that issue. The judge proceeded to say that this instruction was no more or no less important than the other instructions.

[T]he trial court has broad latitude in fair commentary, so long as it does not effectively control the verdict. (People v. Rodriguez (1986) 42 Cal.3d 730, 768.) The jury indicated to the judge that it required an additional instruction. The judge complimented the jury for finding an issue that was previously overlooked. The judge did not comment on the merits, or the ultimate issue of guilt or innocence, and he did not usurp the jurys function. The judge properly instructed the jury that the supplementary instruction had no special importance relative to the other instructions. We find no error.

III

In sentencing appellant on his two first degree murder convictions, the trial court imposed an additional term of 25 years to life for each personal and intentional discharge of a firearm that proximately caused death, as required by section 12022.53, subdivision (d). Appellant contends that by imposing a term of life in prison without possibility of parole for each of two murder counts, and an additional enhancement of 25 years to life for each of two firearm discharges, the court punished him twice for the same act, a violation of section 654.

Section 12022.53, subdivision (d) provides in part: Notwithstanding any other provision of law, any person who, in the commission of a [specified] felony . . . personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life. Appellants two first degree murder convictions were qualifying felonies, pursuant to section 12022.53, subdivision (a)(1), and the jury found true two section 12022.53, subdivision (d) enhancement allegations.

Section 654, subdivision (a) states that [a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.

In People v. Oates (2004) 32 Cal.4th 1048, 1063 (Oates), the Supreme Court held that section 654 does not bar imposition of multiple section 12022.53, subdivision (d) enhancements when there are multiple victims. In Oates, defendant fired two shots at a group of five people and hit only one person. (Id. at p. 1053.) He was convicted of five counts of attempted premeditated murder, a qualifying offense under section 12022.53. (Id. at p. 1055.) Based on a single injury caused by the intentional discharge of a firearm, the court found that the requirements for an enhancement under section 12022.53, subdivision (d) were met as to each of five attempted murder convictions, and section 654 does not prohibit this result. (Id. at p. 1055.)

After the completion of briefing in this case, the Supreme Court reaffirmed its holding in Oates in People v. Palacios (July 13, 2007, S132144) ___Cal.4th___ [2007 D.A.R. 10665], concluding that in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654. (Id. at p. 10667.) The court analyzed the statutory language in section 12022.53, determining that the broad and unambiguous scope of [n]otwithstanding any other provision of law overrides the application, if any, of section 654 to the imposition of punishment prescribed in section 12022.53, subdivisions (b), (c) and (d). (Id. at p. 10668.)

The Supreme Court quoted with approval People v. Hutchins (2001) 90 Cal.App.4th 1308, a case affirming imposition of a section 12022.53, subdivision (d) enhancement on a defendant who committed murder with a gun: Clearly, in enacting this provision 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. [Citation.] Thus, where imposition of a firearms use enhancement is made mandatory notwithstanding other sentencing laws and statutes, it is error to apply section 654 to stay imposition of such an enhancement. [Citation.] (People v. Palacios, supra, ___ Cal.4th ___ [2007 D.A.R. at pp. 10669-10670].)

In this case, appellant killed two people by means of a firearm. Imposition of the firearms use enhancement for each discharge of a firearm that proximately caused death under section 12022.53 was mandatory and was not subject to section 654.

IV

Appellant contends the judgment should be modified to strike the stayed firearm enhancements, pursuant to section 12022.53. In sentencing appellant to the firearms enhancements, the trial court imposed the greatest enhancement for each of the three counts, and stayed the lesser enhancements. On counts 1 and 2, the trial court imposed 25 years to life on each count, pursuant to section 12022.53, subdivision (d), and stayed the lesser enhancements pursuant to 12022.53, subdivisions (b) and (c). On count 3, the trial court imposed a 20-year sentence pursuant to section 12022.53, subdivision (c) and stayed the lesser enhancement pursuant to section 12022.53, subdivision (b).

Appellant argues the lesser enhancements should be stricken in accordance with the provisions of section 12022.53, subdivision (f), which provides: Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. However section 12022.53, subdivision (h) states: Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.

In People v. Bracamonte (2003) 106 Cal.App.4th 704, 713, the court harmonized these provisions. We held that section 12022.53 operates to require the trial court to add the applicable enhancement for each firearm discharge and use allegation under that section found true and then to stay the execution of all such enhancements except for the one which provides the longest imprisonment term.[3] The lesser enhancements under section 12022.53 were properly stayed by the trial court.

V

Appellant contends, and respondent agrees, that the order imposing a parole revocation fine pursuant to section 1202.45 is an unauthorized sentence. A parole revocation fine may not be imposed for a term of life in prison without possibility of parole, as the statute is expressly inapplicable where there is no period of parole. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) Because appellant was sentenced to two terms of life imprisonment without the possibility of parole, the parole revocation fine pursuant to section 1202.45 should be stricken.

DISPOSITION

The judgment is modified to strike the parole revocation fine; in all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J. MANELLA, J.

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

[2] CALJIC No. 8.66.1, as given, provides: A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the kill zone. The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victims vicinity. [] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within the kill zone is an issue to be decided by you.

[3] This issue is currently pending before the California Supreme Court in People v. Gonzalez, review granted March 14, 2007, S149898.