P. v. Harling

Filed 9/13/07 P. v. Harling CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark Mooney, Judge. Affirmed in part; reversed in part with directions.

Jeralyn Keller, 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, Senior Assistant Attorney General, Steven D. Matthews, and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant, Marcel Dion Harling, appeals from his convictions for two counts of second degree murder (Pen. Code,^[1] 187, subd. (a)) and one count of attempted murder. ( 187, subd. (a), 664.) Defendant also appeals from the jurors findings that: a principal personally used a firearm; the firearm use proximately caused great bodily injury and death; and that the offenses were committed for the benefit of a criminal street gang. ( 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d).) Defendant contends: there was instructional error in connection with the gang allegation; the evidence is insufficient to support the gang allegation which in turn requires reversal of all firearm use findings; it was error to impose a 15-year minimum term; and he is entitled to an additional day of presentence credit. The Attorney General argues that additional court security fines must be imposed. We reverse the gang enhancement and firearm use findings based on sufficiency of the evidence grounds, remand to permit the trial court to exercise its discretion as to the determinate unpremeditated murder sentence, award an additional day of presentence credit, and increase the amount of court security fines.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 6:50 p.m. on September 10, 2003, Alexander Ligon was standing in front of his home with several friends. Mr. Ligon was standing with Quinesha Dunford, Demario Moore, and two others. Mr. Ligon saw a late model Nissan pull close to the curb. The car was driven from the direction of Budlong Street toward Normandie Avenue. Mr. Ligon believed the driver was going to park the car. The car got within a few feet of Mr. Ligon and his companions. Thereupon, the passenger in the rear seat rolled down the window, yelled out the name of a local gang, and fired 13 or 14 shots. There were three people in the car, including: the driver; the front right passenger; and the rear right passenger. Mr. Ligon and Ms. Dunford ran to the right. Ms. Dunford fell to the ground. Mr. Ligon picked Ms. Dunford up and carried her to the porch of a nearby abandoned house. Also, Mr. Ligon saw Mr. Moore, who appeared to be dead, lying on the ground.

Mr. Ligon later identified Jaylin Underwood from a photographic lineup. Mr. Ligon was 90 percent certain that Mr. Underwood fired the fatal shots from the back passenger seat of the car. Mr. Ligon also identified Adrian Richardson from a photographic lineup. Mr. Ligon was 85 percent certain that Mr. Richardson was the passenger in the right front seat. Mr. Richardson went to school with Mr. Ligon. Mr. Ligon and Mr. Richardson had been involved in fights several years prior to the shooting. Mr. Ligon had been a member of a local gang whose rival was Mr. Underwoods gang. Mr. Moore and Ms. Dunford died of gunshot wounds.

Andre Henry was driving in the area of 54th Street and Normandie Avenue on September 10, 2003, when he heard several gunshots. As Mr. Henry drove toward the next corner, he saw a crowd of young people running in different directions. Mr. Henry saw a car moving slowly away from the group of people towards Normandie Avenue. Mr. Henry saw two individuals in the front seat of the car and another in the back seat. The three individuals appeared to be celebrating, giving one another what Mr. Henry described as high fives. Mr. Henry saw the car turn right onto Normandie Avenue in front of his car. Mr. Henry wrote down on a piece of paper the license plate number as 5AYG361 and the color and description of the car as a brown or grey Maxima. Mr. Henry saw the car turn off Normandie on 51st Street. Mr. Henry then returned to the shooting scene and provided the cars description and his note to the authorities.

Michael Fisher was riding in a car driven by his sister on September 10, 2003. Mr. Fisher heard five gunshots when his sister stopped for a traffic signal at 54th Street and Normandie Avenue. As the light changed, Mr. Fisher saw three individuals in a grey Maxima that turned right onto Normandie. The three Black males were celebrating . . . slapping high fives as they fled the shooting scene. Mr. Fisher told his sister to follow the car when it turned left off Normandie. Mr. Fishers sister drove beyond where the car turned. She then turned left on the next block and came back toward the car, which was parked on Denker Street near 51st Street. All of the occupants had fled the car by that time. Mr. Fisher returned to the area where the shooting occurred and told the officers present what had just occurred.

Detective Linda Ortega arrived at the shooting scene on September 10, 2003. Detective Ortega learned that the Nissan automobile seen by Mr. Henry and Mr. Fisher was registered to Lamar Galbreath. Mr. Galbreath lived with defendant. Mr. Galbreath and defendant were cousins. Defendant was arrested at approximately 9:50 p.m. on September 10, 2003. Detective Ortega interviewed Defendant beginning at about midnight and into the early hours of September 11, 2003. Tape recordings of that interview were played during the trial. Defendant initially denied that he was in the Nissan or in the area of the shootings. Defendant also denied he had any involvement in the shooting incident. However, defendant later admitted that he was driving the Nissan at the time of the shooting. Defendant also identified Mr. Underwood as the person who fired the gun and Mr. Richardson as the passenger. Defendant identified Mr. Richardson and Mr. Underwood by the names used by their fellow gang members. A search of defendants residence at 1501 West 53rd Street, on September 11, 2003, uncovered photographs depicting gang writing, graffiti, and monikers related to the local gangs and their rivals. Defendant also exhibited the local gang hand signs in the photographs.

Mr. Richardson was arrested at approximately 8 a.m. on September 11, 2003. Detective Ortega interviewed Mr. Richardson later that morning. A tape recording of the interview was also played for the jury. Mr. Richardson denied he was present or had any knowledge of the shootings. On September 13, 2003, Los Angeles County Juvenile Hall Detention Services Officer Nathan Bell overheard a telephone conversation in which Mr. Richardson stated, You need to go kill that fool. A computer seized during a search of Mr. Richardsons residence on September 11, 2003, contained photo images of Mr. Richardson exhibiting local gang signs. Other items indicative of gang graffiti were also recovered from Mr. Richardsons home.

Mr. Richardson was identified as a member of the local gang on numerous occasions by various police officers. On August 13, 2003, Mr. Richardson was in the company of six other local gang members. One of the gang members was arrested for possessing a concealed semi-automatic weapon. Mr. Richardson had admitted his membership in the local gang. On September 3, 2003, Officers Louis Marin and Greg Martin spoke with defendant. Mr. Richardson, who was in the presence of other gang members, admitted he was a gang member at that time. Officer Marin entered this information into the Cal-Gangs data base.

Los Angeles Police Officer Cliff Chu was assigned to the 77th Street Division gang enforcement detail for three years, including 2003. In that capacity, he received extensive training and testified as a witness on gangs on more than 10 occasions. Officer Chu was assigned as the primary investigator of the local gang from November 2000 to June 2003. Officer Chu had personally spoken with hundreds if not thousands of gang members and associates in gathering gang intelligence. By building rapport with gang members, Officer Chu was able to gather intelligence. The Cal-Gangs data base is a secure statewide system to track and document gang activity and members. The system tracks the names and monikers of gang members as well as birthdates, addresses, automobiles stopped, and associations with other individuals. Officer Chu was trained to use the Cal-Gang system and was certified to input data. Officer Chu was familiar with Mr. Richardsons gang as well as the rival gang to which Mr. Ligon belonged.

Gangs typically have specific territories or boundaries described as turf. Numbers in gang names specifically refer to the streets or areas in which the gang territory lies. Normandie Avenue served as a border between the local rival gangs. The most common way for a gang member to gain prestige or respect would be to commit violent crimes such as: armed robbery; drive-by shootings; walk-up shootings; and violent crimes against actual or suspected members of rival gangs. This is referred to as putting in work for the gang. Gang members gain respect within the gang by committing violent crimes and retaliation against rival gangs. Younger gang members are often required to commit such offenses to gain status within the gang.

Officer Chu first had personal contact with Mr. Underwood in December 2001. Officers Chu and a partner, identified only as Officer Martin, had inputted Mr. Underwood into the Cal-Gang system three to six times between 2001 and 2003. Officer Chu saw Mr. Underwood in the local gang territory approximately 15 times. Mr. Underwood admitted he was a member of the local gang in March 2003. Mr. Underwood, Mr. Richardson, and defendant had all been stepped. That process involved the notification of the gang members family that he was involved in gang activities. Officer Chu had seen Mr. Richardson in Mr. Underwoods company on at least 10 occasions. They appeared to be best friends. Officer Chu also knew defendant was a member of the local gang. Officers Chu and Martin had two contacts in May 2002 with defendant within the local gang territory and in the company of known members of the local gang. Cal-Gang entries were made on both occasions. On August 6, 2002, Officer Chu spoke to defendant. On this occasion, defendant admitted that he was a member of the local gang. Officer Chu had seen defendant in the vicinity of defendant and Mr. Underwood in late 2002 or early 2003.

The primary activities of the local gang included: narcotics sales; street robberies; armed robberies; and drive-up and walk-up shootings. But Officer Chu identified no dates upon which these numerous offenses occurred nor identified the gang members involved. Officer Chu was familiar with the convictions of Julio Cesar Mendoza for negligent discharge of a firearm in public and Ryan David Shields for ex-felon in possession of a firearm. Mr. Mendoza was sentenced on April 11, 2002. Mr. Shields was sentenced on April 10, 2003. Both Mr. Mendoza and Mr. Shields were documented and admitted members of the local gang.

The following hypothetical scenario was posed to Officer Chu: a car was seen driving past a home on 54th Street between Budlong and Normandie Avenue; the car pulled to within one or two feet of the curb; a rear passenger window opened; the rear passenger yelled out his local gang affiliation; and the rear passenger fired numerous shots from the rear passenger window at a group standing in front of a home where a rival gang member lived. Based on those hypothetical circumstances, Officer Chu believed the crime benefited the local gang. By yelling the local gang name in a rival territory, the perpetrators generate a lot of talk on the street raising the fear level in both territories. It would also benefit the individual who fired the shots.

III. DISCUSSION

A. Instructional Error And Sufficiency Of The Evidence Contention

Defendant argues that the trial court improperly instructed the jury with a modified version of CALJIC No. 17.24.2,^[2]which misstated the law. More specifically, defendant argues that the trial court included two offenses that did not qualify as predicate offenses pursuant to section 186.22, subdivision (e). Defendant reasons the trial courts instruction improperly identified two felonies as predicate offenses committed for the benefit of a street gang, requiring reversal of the jurors true findings as to both sections 186.22 and 12022.53 allegations as they relate to defendant. In the alternative, defendant argues there is no substantial evidence of any qualifying predicative offenses to support the gang enhancement finding. We need not address the instructional error contention because there is no substantial evidence of qualifying predicate offenses to support the gang finding.

The crimes in this case occurred in 2003. At that time, section 186.22, the criminal street gang statute, provided in pertinent part: (a) Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. The term pattern of criminal gang activity is defined in section 186.22, subdivision (e) as follows: (e) As used in this chapter, pattern of criminal gang activity means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . . . (Stats. 2001, ch. 854, 22; see People v. Zermeno (1999) 21 Cal.4th 927, 931-932; People v. Loeun (1997) 17 Cal.4th 1, 9-10; People v. Gardeley (1996) 14 Cal.4th 605, 625.)

There is a substantial evidence of at least one predicate offense. The present case, which involves qualifying crimes committed on a single occasion, constitutes one predicate offense. (People v. Zermeno, supra, 21 Cal.4th at p. 932; People v. Loeun, supra, 17 Cal.4th at pp. 9-10.) The problem from the perspective of the Attorney General is that there is no substantial evidence of another predicate offense as defined by section 186.22, subdivision (e). In this case, Officer Chu testified regarding the convictions of Mr. Mendoza for negligent discharge of a firearm in public ( 246.3) and Mr. Shields for ex-felon in possession of a firearm. ( 12021, subd. (a)(1).) Officer Chu explained that Mr. Mendoza had walked toward a group of individuals and fired numerous shots at them. Mr. Shields had been in possession of a loaded .32 caliber revolver. Both Mr. Mendoza and Mr. Shields were documented and admitted members of the local gang.

Defendant argues that Mr. Shieldss and Mr. Mendozas convictions are not qualifying predicate offenses as specified in section 186.22, subdivision (e). As a result, there was insufficient evidence that defendants gang engaged in a pattern of criminal gang activity. We agree. There is no substantial evidence that either Mr. Mendozas conduct or that of Mr. Shields falls within any statutory predicate offenses specified in section 186.22, subdivision (e). There is no merit to the argument that Mr. Shieldss conviction for possession a handgun and Mr. Mendozas negligent discharge of a firearm offense constituted conduct within the reach of section 186.22, subdivision (e)(23) because they involve firearms capable of being concealed upon the person. Section 186.22, subdivision (e)(23), refers to section 12101, subdivision (a)(1) which provides, A minor shall not possess a pistol, revolver, or other firearm capable of being concealed upon the person. (Italics added.) There was no evidence presented that either Mr. Mendoza or Mr. Shields was a minor at the time of their convictions. The minute order introduced as the prosecutions exhibit No. 75 specifically states that Mr. Shields was 21 years old at the time of his offense. Moreover, no evidence was presented that the firearm used by Mr. Mendoza was of a concealable nature. Nor could the numerous other offenses mentioned by Officer Chu satisfy the section 186.22, subdivision (e) requirements. There was no testimony as to the dates on which the otherwise qualifying offenses occurred or whether they were committed on separate occasions. As noted, defendants current conduct may serve as one of the predicate offenses. But there was no evidence presented that a second qualifying crime was committed by gang members as required by section 186.22.

The reversal of the three street gang findings on the judgment is material. The 15-year minimum terms imposed by pursuant to section 186.22, subdivision (b)(5) must be reversed. Further, the firearm use findings must be reversed. The jury found defendant was liable under sections 12022.53, subdivisions (b), (c), and (d). Because defendant did not personally fire the shots, he could only be subject to the firearm use findings under the provisions of section 12022.53, subdivision (e) which states: The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both the following are pled and proved: [] (A) The person violated subdivision (b) of Section 186.22. [] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d). In order for the firearm use findings to be applicable, the street gang allegations had to be true. (See People v. Garcia (2002) 28 Cal.4th 1166, 1174; People v. Gonzales (2001) 87 Cal.App.4th 1, 12.) As noted, no substantial evidence supports the street gang allegations. Thus, the firearm use findings must be reversed.

Upon issuance of the remittitur, the sentences for the two second degree murder counts are to be reduced to 15 years to life. No minimum terms are to be imposed pursuant section 186.22, subdivision (b)(5). The concurrent sentence on count 3, non-premeditated attempted murder, is reversed. The cause is remanded to allow resentencing on count 3 in light of the substantial reductions in the sentence resulting from the foregoing analysis. ( 1260, 1469.) We need not address defendants instructional error and other contentions concerning the street gang allegations.

B. Presentence Credits

Defendant argues that he is entitled to an additional day of presentence custody credits. The Attorney General agrees. The failure to award a proper amount of credits is a jurisdictional error, which may be raised at any time. (People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15; People v.Serrato (1973) 9 Cal.3d 753, 763-765, disapproved on other grounds in People v.Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) Defendant should have received 828 days of actual custody credit.

C. Court Security Fees

The trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to each count. (See People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed only one section 1465.8, subdivision (a)(1) court security fee. Defendant was convicted of two counts of second degree murder and one count of attempted murder. As a result, two additional section 1465.8, subdivision (a)(1) fees shall be imposed. The trial court is to personally insure the abstract of judgment is corrected to comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

IV. DISPOSITION

The Penal Code sections 186.22 and 12022.53 enhancements are reversed. The matter is remanded for resentencing and modification of the sentence as discussed in the body of this opinion. The judgment is further modified to reflect defendant is subject to two additional Penal Code section 1465.8, subdivision (a) court security fees and he is entitled to one additional day of presentence credit. The judgment is affirmed in all other respects. Following resentencing, the clerk of the superior court is to prepare a corrected abstract of judgment which accurately reflects the sentence imposed by the trial court including those matters set forth in this opinion and forward a copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

KRIEGLER, J.

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

^[2] The jury was instructed as follows: It is alleged in counts I, II and III that the crime charged crimes charged were committed for the benefit of, at the direction of or in association with a criminal street gang with the specific intent to promote, further or assist in any criminal conduct by gang members. [] Criminal street gang means any ongoing organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the following criminal acts: narcotic sales, robbery, murder, attempted murder, assault with a firearm, discharge of a firearm in public, illegal possession of a firearm, having a common name or common identifying sign or symbol and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. [] Pattern of criminal gang activity means the commission or attempted commission of conspiracy to commit or solicitation or sustained juvenile petition for or conviction of two or more of the following crimes: namely discharge of a firearm in public, illegal possession of a firearm, provided at least one of those crimes occurred after September 26th, 1988 and the last of those crimes occurred within three years after a prior offense and the crimes were committed on separate occasions by two or more persons. [] The phrase primary activities as used in this allegation, means that the commission of one or more of the crimes identified in the allegation be one of the groups chief or principal occupations. This would of necessity exclude the occasional commission of identified crimes by the groups members. [] In determining this issue, you must consider any expert opinion evidence offered as well as evidence of the past or present conduct by gang members involving the commission of one or more of the identified crimes including the crime charged in this proceeding. [] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. [] Include a special finding on that question, using the form that will be supplied to you. The essential elements of this allegation are: [] 1. The crimes charged were committed for the benefit, at the direction of or in association with a criminal street gang. And [] 2. Each of these crimes was committed with the specific intent to promote, further or assist in any criminal conduct by gang members. (Italics added.)