P. v. Borja

Filed 9/26/07 P. v. Borja CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, George Genesta, Judge. Affirmed in part, reversed in part and remanded.

Patrick Morgan Ford, 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 E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

Jose Anthony Borja appeals from the judgment entered after his conviction by a jury on one count of attempted murder, five counts of assault with a firearm and one count each of shooting at an occupied motor vehicle and an inhabited dwelling. As to six of the counts, the jury also found true the special allegations Borja had personally used a firearm and, as to all of the counts, had committed the offenses for the benefit of a criminal street gang. Borja contends the testimony of the Peoples gang expert was insufficient to support the gang enhancement under Penal Code section 186.22[1]and violated his constitutional right to have a jury decide the ultimate issue of fact. He further contends four of the assault convictions should be reversed on the grounds they were lesser included offenses of count 7 (shooting at an occupied vehicle) and the evidence failed to establish the intent required to support those charges. Finally, he contends, and the People agree, the trial court incorrectly calculated the gang enhancement portion of his sentence. In light of this and an additional sentencing error, we reverse and remand for resentencing. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On a Friday evening in early November 2005, Carlos Andrade gathered with some friends for a barbecue in the front yard of a home in East Valinda, an unincorporated area of Los Angeles County. As he stood in front of the house drinking a beer, he saw a black Mustang being driven recklessly up and down the residential street. Andrade yelled at the driver, whom he recognized as a neighborhood cholo[2]known as Toro, to slow down because of the many children who live and play on the street. The driver stopped, got out of his car and engaged in a staring contest with Andrade. After a minute or so the driver got back in his car and drove away. Minutes later he returned and again got out of his car, this time brandishing a handgun. The driver pointed the gun at Andrade and fired three or four shots. Andrade turned and ran but was struck in the lower back with a bullet.

Just before the shooting started, Rene Bautista, accompanied by his wife and two children, pulled into his driveway next to the yard where Andrade stood. Bautistas eleven-year-old son left the car to open the locked gate. Bautista then heard a shot coming from Andrades direction, looked up, saw a muzzle flash and yelled for his family to get down. One of the shots struck the drivers door of the sports utility vehicle where Bautista sat, and another struck the door to the Bautistas garage.[3] As the black Mustang sped away, Bautista recognized the car as one driven by Borja, who lived around the corner and was known to be a member of the local Hurley Street gang. Bautista recognized his car from an encounter with Borja several months before, when Borja, driving the same black Mustang, intentionally ran over Bautistas dog. Upon questioning by a deputy sheriff who responded to the call, Andrade too identified Borja by name as the shooter.

Based on the descriptions given by Andrade and Bautista to the responding deputies, Borja was arrested several days later; and both Andrade and Bautista identified him in a photographic lineup. After first selecting Borjas picture, however, Bautista also circled the photograph of a man who, like Borja, wore a mustache. Both Andrade and Bautista identified Borjas black Mustang.

Borjas first trial ended in a hung jury. Both Andrade and Bautista were subpoenaed to testify at the retrial.[4] Despite their earlier statements to the responding deputies, both men now professed uncertainty about the identity of the shooter, claiming they had not actually seen the shooters face. Under questioning, they insisted they were not afraid to testify, although two deputies testified that each had admitted out of court to being afraid of retaliation from Borja or other gang members. In light of Andrade and Bautistas recalcitrance, the responding deputies testified to their earlier statements at the scene of the shooting, and a bilingual deputy testified to Andrades statements identifying Borja and his car at the lineup.

The People also called Detective Steven Skahill, an experienced gang investigator,[5]to testify as an expert on gang culture and practices. Skahill testified two Hispanic gangs claimed the area of the shooting ‑‑ the Hurley Street gang and the East Side Dukes ‑‑ and identified several Hurley Street gang members who had been convicted of violent crimes. Skahill also testified Borja had claimed to be a member of the Hurley Street gang and had numerous gang tattoos, including Hurley Street across his chest and SGV (San Gabriel Valley) on his arm. Based on the circumstances of the shooting, Skahill expressed his opinion that the offenses had been committed for the benefit of a criminal street gang. According to Skahill, after the kind of stare-down or mad dogging contest that occurred between Borja and Andrade, the gang member would have to save face for himself and the gang to promote the gang and preserve its dominance. If a gang member had been challenged by a member of the community and did not respond, he would be considered weak; and the gang would lose respect.

Borja did not testify and presented only two exhibits in his defense. He was convicted on all counts, and the jury found true the special allegations supporting the gang and firearm enhancements. In a bifurcated proceeding, the court found true the allegations that Borja had suffered five prior serious or violent felony convictions within the meaning of the Three Strikes law ( 667, subds. (h)-(i), 1170.12, subds. (a)-(d)) and one prior serious felony conviction under section 667, subdivision (a)(1). Borja was sentenced to an aggregate state prison term of 58 years to be followed by an indeterminate term of 175 years to life.[6]

DISCUSSION

1. Substantial Evidence Supports the Jurys True Findings on the Criminal Street Gang Enhancements

To obtain a true finding on an allegation of a criminal street gang enhancement, the People must prove the crimes at issue were committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . . ( 186.22, subd. (b)(1).) Borja contends the evidence was insufficient to satisfy that standard and, therefore, the punishment imposed under the criminal street gang enhancement on each of his convictions must be reversed.

In reviewing a claim of insufficient evidence in a criminal case, we determine whether, on the entire record viewed in the light most favorable to the People, any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see also People v. Holt (1997) 15 Cal.4th 619, 667.) In making this assessment the court looks to the whole record, not just the evidence favorable to the [defendant] to determine if the evidence supporting the verdict is substantial in light of other facts. (Holt, at p. 667.)

Substantial evidence in this context means evidence which is reasonable, credible, and of solid value ‑‑ such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence ‑‑ i.e., evidence that is credible and of solid value ‑‑ from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt].) Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt. (People v. Millwee (1998) 18 Cal.4th 96, 132.)

Borja contends the jurys finding he committed the crimes for the benefit of the gang to which he had belonged is unwarranted in this case because he acted alone, did not refer to the gang during the incident and did not fit Detective Skahills profile of an active gang member.[7] According to Borja, his gang tattoos did not signify current activity with the Hurley Street gang; and two of the field interview reports identifying Borja were several years old.[8] He argues, although the evidence might have supported a jerk enhancement, were there such a thing, it did not support the jurys true finding on the gang enhancement allegations.

As Detective Skahill agreed, it is always possible a gang member will commit a crime that is not for the benefit of the gang. Indeed, it would appear quite plausible Borjas conduct was intended to enhance his own personal stature within the community ‑‑ misguided though he was ‑‑ and not for the benefit of the Hurley Street gang. But that does not mean the jurys finding was unreasonable. Borja was identified by both victims at the time of the shooting as a local Hurley Street gang member, and his black Mustang was well known in the neighborhood. Just months earlier Skahill himself had investigated a suspected gang shooting and collision between two cars, one of which was the Mustang driven by Borja and registered to him. His photographs of the Mustang from that incident were the ones that Andrade and Bautista later identified. Even more central to Skahills opinion, it appears, were the location of the assault ‑‑ right in Borjas neighborhood in the heart of Hurley Street gang territory ‑‑ the mad-dogging stance Borja assumed with Andrade and the ruthless nature of the attack, which served to intimidate not just Andrade but the entire community. Skahill testified the crimes at issue were consistent with a typical gangs demand for respect on its turf and goal of intimidating community members.[9]Indeed, Skahills opinion was directly in accord with the legislative finding accompanying the enactment of section 186.22 that the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. ( 186.21.)

Thus, while it is evident that Borja is a hothead or jerk, as he himself suggests, we see no basis on this record to second-guess the jurys finding that he acted for the benefit of the gang. Borjas failure to shout the name of his gang or display the gangs sign just before committing the crimes does not negate the jurys conclusion that the crimes he committed were for the benefit of his gang. (Cf. People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1208 [affirming admission of gang expert opinion that sole gunman who displayed no gang signs during shooting acted to bolster gang and his own reputation in gang].) Even if, on review, we can reasonably envision a different result, we cannot say the jury acted unreasonably in finding that Borja committed the crimes with the specific intent to promote, further, or assist in . . . criminal conduct by gang members. ( 186.22, subd. (b)(1); People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 [if substantial evidence supports the verdict, the fact the record could reasonably be interpreted to support a contrary finding will not warrant reversal]; People v. Ferraez (2003) 112 Cal.App.4th 925, 930 [[i]t is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation].)

2. The Court Did Not Err in Allowing the Gang Expert To Testify to the Ultimate Issue of Gang Purpose

Borja also contends the trial court improperly allowed Detective Skahill to testify to the ultimate fact issue relevant to the gang enhancement finding, that is, whether the crime was committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . . ( 186.22, subd. (b)(1).)[10] According to Borja, absent Skahills opinion that Borja acted for the benefit of the gang, the jury might reasonably have concluded the shooting was simply the overreaction of an angry person.

Borja acknowledges that opinion testimony is not objectionable because it embraces the ultimate issue to be decided by the trier of fact (Evid. Code,  805), but relies on the distinction drawn in People v. Killebrew (2002) 103 Cal.App.4th 644, in which the court rejected a gang experts opinion that, when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun. (Id. at p. 652.) As the court in Killebrew explained, it is improper for an expert to opine on whether a specific individual had specific knowledge or possessed a specific intent. (Id. at p. 658.) Because the experts testimony provided the only evidence to establish the elements of the crime (id. at p. 659), it did nothing more than inform the jury how [the expert] believed the case should be decided. (Id. at p. 658; accord, In re Frank S. (2006) 141 Cal.App.4th 1192, 1197-1198 [Similar to Killebrew, the expert in this case testified to subjective knowledge and intent of the minor. [Citation.] Such testimony is much different from the expectations of gang members in general when confronted with a specific action].)

The narrow boundaries of those decisions do not aid Borja. The Supreme Court has unequivocally held expert opinion testimony of the type admitted in this case is proper. In People v. Gardeley (1996) 14 Cal.4th 605, the Court held, based on an experts testimony that the details of an assault conveyed a classic example of gang-related activity to frighten residents of an area where the gang members sell drugs, a jury could reasonably conclude that the attack on [the victim] by [gang members] was committed for the benefit of, at the direction of, or in association with that gang, and with the specific intent to promote, further, or assist in . . . criminal conduct by gang members as specified in the STEP Act. (Id. at p. 619, italics added.) As Killebrew itself explained, the gang experts testimony in that case was not the type of culture and habit testimony approved in Gardeley and subsequent cases. (Killebrew, supra, 103 Cal.App.4th at p. 654.) The opinions offered by Detective Skahill, on the other hand, substantially adhered to this distinction and were premised upon hypothetical facts about gang expectations properly rooted in the evidence presented at trial. (People v. Ferraez, supra, 112 Cal.App.4th at p. 930.) These opinions were not only proper but also necessary to explain to the jury how a gangs reputation and control over its territory is enforced, matters that are sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . . (Evid. Code, 801, subd. (a).) (Ferraez,at p. 931.) Accordingly, the trial judge did not abuse his discretion in admitting Skahills expert testimony.[11]

3. Assault with a Deadly Weapon Is Not a Lesser and Necessarily Included Offense of Willfully and Maliciously Discharging a Firearm at an Occupied Vehicle

Borja was convicted of four counts of assault with a firearm for shooting at the Bautista family ( 245, subd. (a)(2)), as well as on two additional counts for shooting at their occupied vehicle ( 246) and at their inhabited dwelling (house) (246). Borja argues the assault convictions are improper because they are all lesser included offenses of firing a gun at an occupied motor vehicle.

In California, a single act or course of conduct by a defendant can lead to convictions of any number of the offenses charged. [Citations.] But a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) Until recently courts have applied either of two tests in determining whether an uncharged offense is necessarily included within a charged offense: the elements test or the accusatory pleading test. But in People v. Reed (2006) 38 Cal.4th 1224 (Reed), the Supreme Court directed courts to 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. (Id. at p. 1231.)

Because the information charging Borja separately set forth each of the challenged offenses, we analyze Borjas claim under the elements test, which simply provides one crime is necessarily included in a second crime if the statutory elements of the second offense include all of the statutory elements of the first. (Reed, supra, 38 Cal.4th at p. 1227.) In In re Daniel R. (1993) 20 Cal.App.4th 239, this court considered an issue virtually identical to the one raised by Borja and concluded assault with a deadly weapon is not necessarily included in the offense of discharging a firearm at an occupied vehicle or inhabited dwelling, both of which are proscribed by section 246. (Daniel R., at pp. 241, 244.) As we explained, The statutory definition of assault is an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another, thus making a person, as the target of the attempted unlawful use of force, a necessary element of the crime of assault. (Id. at p. 244.) A violation of section 246, on the other hand, occurs when a defendant maliciously and willfully discharges a firearm at an inhabited dwelling house [or] occupied motor vehicle . . . , an offense that includes shooting at a home currently being used for dwelling purposes, whether occupied or not. ( 246.) (Daniel R., at p. 244.) In light of these definitions we reasoned, it is apparent one can commit a violation of section 246 without committing an assault. A defendant may violate section 246 by discharging a firearm into an inhabited, but temporarily unoccupied dwelling. In that circumstance, there is no person present to be the target of the unlawful attack and the threat of injury or risk to human health and safety is lacking. Thus, while the gravamen of the crime of assault is the potential injury to the victim, not all violations of section 246 require persons or victims even be physically present. [Citations.] (Daniel R. at p. 244; see also People v. Licas (2007) 41 Cal.4th 362, 367-371 [holding assault is not a lesser included offense of shooting from a vehicle and approving holding of Daniel R.].)

Borja acknowledges our holding in Daniel R. but claims the decision is not controlling because his conviction on count 7 (as opposed to count 8)[12]was based solely on the allegation he had fired his weapon at the vehicle in which the Bautistas rode. He argues this charging distinction differentiates his situation from the rationale for the holding in Daniel R. However logical Borjas argument may be,[13]because it focuses on the facts alleged in the information (the accusatory pleading), rather than the statutory elements of the offense with which he was charged, it is precluded by the holding of Reed, supra, 38 Cal.4th at page 1227.

4. The Jury Properly Inferred the Requisite Intent for the Assault Charges from Borjas Conduct

Borja also contends the evidence was insufficient to support the four assault convictions based on the shots he fired in the direction of the Bautista family because there was no evidence he was aware of the Bautistas presence or otherwise had the requisite intent to commit an assault. Borja relies upon the Supreme Courts decision in People v. Williams (2001) 26 Cal.4th 779 (Williams ), in which the Court clarified the mental state required for the crime of assault: [A] defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur. (Id. at p. 788.) In Williams the defendant had fired a shotgun at the victim who was crouched behind his truck, not knowing that the victims two sons were also hidden behind the truck. (Id. at p. 783.) The jury convicted him of assault against the father but deadlocked on the counts of assault against the two sons. The Court of Appeal reversed the assault conviction on the ground of instructional error. In reviewing that decision, the Supreme Court agreed the jury instruction on assault used at trial (former CALJIC No. 9.00 (1994 rev.))[14]failed to properly inform the jury as to the requisite state of mind on a charge of assault, but reinstated the conviction after concluding the error was harmless. (Williams, at p. 790.) The Court explained, [A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature would probably and directly result in the application of physical force against another. (Ibid.)

Two years after the Williams decision, this court reviewed a revised version of CALJIC No. 9.00 and invalidated it as well, finding [the instruction] still did not inform the jury the prosecution was required to prove the defendant had actual knowledge his act, by its nature, would probably and directly result in physical force being applied on another person. (People v. Riva (2003) 112 Cal.App.4th 981, 997.) In Riva,the defendant was convicted of assault after his shot ‑‑ fired from inside his own car ‑‑ missed the occupants of the targeted car and instead struck a pedestrian walking on the sidewalk. (Id. at p. 986.) As in Williams, we concluded the error was harmless on the ground that [t]he facts in this case would lead a reasonable person to realize if he fired a gun at someone in a car at this time of day in this kind of neighborhood the bullet could strike a pedestrian and a battery would directly, naturally and probably result from his conduct. (Riva, at p. 998.)

The jury in Borjas case was given the most recent version of the CALJIC No. 9.00 assault instruction, which in part requires a finding that [t]he person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person[.] (CALJIC No. 9.00 (2003 rev.).)[15] Borja does not question this version of the assault instruction; he instead limits his challenge to the sufficiency of the evidence, arguing the jury could not reasonably have found he harbored the requisite intent to assault the members of the Bautista family. We find no reason to distinguish this case from our holding in Riva: A reasonable person would have realized if he fired at a person standing with friends in front of a home in a residential neighborhood early on a Friday evening, the bullet could strike other pedestrians or residents, whether or not those individuals were intended targets. The jury was presented with evidence the Bautistas car had just driven into the driveway adjacent to the yard where Andrade stood when Borja fired, and there was no evidence Borja did not see the car or its individual occupants. Accordingly, the jury reasonably could have found that Borja harbored the necessary intent to assault the members of the Bautista family.

5. The Court Erred in Calculating Borjas Sentence

Borja contends, and the People concede, the trial court erred by imposing gang enhancements on counts 3 through 6 (the assault convictions against the members of the Bautista family) pursuant to section 186.22, subdivision (b)(1)(C). We agree. Subdivision (b)(1)(C), which provides for a 10-year enhancement for a defendant who has committed a violent felony, does not apply when the violent felony is punishable by imprisonment in the state prison for life. ( 186.22, subd. (b)(5).) Rather, subdivision (b)(5) applies and requires imposition of a minimum term of 15 years before the defendant may be considered for parole. (See People v. Lopez (2005) 34 Cal.4th 1002, 1007 [25-year-to-life sentence for first degree murder requires application of 15-year minimum term under 186.22, subd. (b)(5), rather than enhancement under subd. (b)(1)(C)].)

Because Borja is otherwise ineligible for parole on each of those counts for a period in excess of 25 years, the 15-year minimum parole eligibility term will have no practical effect. Nonetheless, consistent with the statutory language and the Supreme Courts holding in People v. Lopez, supra, 34 Cal.4th 1002, the sentence imposed must be modified to delete the gang enhancements under section 186.22, subdivision (b)(1)(C).

In addition to erroneously adding determinate term gang enhancements to counts 3, 4, 5 and 6, the trial court improperly calculated the gun-use enhancements applicable to counts 4, 5 and 6 by imposing additional terms of 16 months on each count, one-third the middle term of four years specified in section 12022.5, subdivision (a), rather than full strength enhancements for each consecutive indeterminate term.[16] As the Supreme Court explained in People v. Felix (2000) 22 Cal.4th 651, 655-656, in upholding the imposition of the full terms provided for enhancements added to indeterminate terms, the provisions of section 1170.1, subdivision (a), governing consecutive sentences, including the portion of that section limiting enhancements added to subordinate terms to one-third the statutory term, do not apply to indeterminate terms. [W]e find that section 1170.1 does not apply to a gun-use enhancement attached to an offense which carries an indeterminate term of imprisonment. [Citation.] That being the case, section 1170.1s one-third limit for consecutive subordinate terms and enhancements does not apply. [] We thus conclude that the court should impose the full term for enhancements attached to indeterminate terms. This conclusion means that consecutive enhancements are full term for indeterminate crimes . . . . (Felix, at p. 656; see People v. Ramos (2004) 121 Cal.App.4th 1194, 1209.)

In response to our request for supplemental briefing on this question, Borja contends only a single gun-use enhancement is properly imposed for the assaults on the Bautista family because the information alleged a gun-use enhancement under section 12022.5, subdivision (a), only for the assault in count 6 (Megan Bautista), and not on counts 3 (Rene Bautista, Sr.), 4 (Katherine Bautista) and 5 (Rene Bautista, Jr.). Borja is correct as to the contents of the information, but the omission of a separately pleaded gun-use enhancement on counts 3, 4 and 5 is not dispositive.

Unlike section 12022.53, which provides [f]or the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact ( 12022.53, subd. (j)), section 12022.5 by its terms does not require the statute to be specifically pleaded in the information or indictment. (But see  1170.1, subd. (e) [[a]ll enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact].) Nonetheless, due process requires a criminal defendant be given fair notice of the charges to provide an opportunity to prepare a defense and to avoid unfair surprise at trial. (People v. Toro (1989) 47 Cal.3d 966, 973, disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558; People v. Lohbauer (1981) 29 Cal.3d 364, 368-369; see People v. Tardy (2003) 112 Cal.App.4th 783, 786.) Constitutional principles of due process are satisfied, however, as long as the accusatory pleading apprises the defendant of the potential for the enhanced penalty and alleges every fact and circumstance necessary to establish its applicability. (People v. Thomas (1987) 43 Cal.3d 818, 826; Tardy, at p. 787.)

Here, the accusatory pleading alleged as enhancements in connection with the charges of shooting at the Bautistas occupied motor vehicle (count 7) and at their inhabited dwelling (count 8) that Borja had personally and intentionally discharged a firearm, causing great bodily injury to Andrade ( 12022.53, subds. (b), (c) & (d)). The information further alleged Borja had personally used a firearm within the meaning of section 12022.5, subdivision (a), in connection with the assault on Megan Bautista charged in count 6, which took place contemporaneously with the assault on the other Bautista family members. Thus, although gun-use enhancements were not separately pleaded as to the additional assault-with-a-firearm counts, Borja was plainly on notice he faced enhanced penalties for using a firearm during the incident. (See People v. Riva, supra, 112 Cal.App.4th at p. 1003 [failure to plead enhancement under 12022.53 as to count on which it was imposed did not violate defendants right to adequate notice of factual bases of sentence enhancement sought or interfere with defendants ability to defend charges against him because enhancement alleged as to other counts involving same incident that also went to trial].) The case was tried with the understanding all the assault counts included potential gun-use enhancements; Borjas counsel expressly agreed to the courts instructions concerning personal use of a firearm, which advised the jury Borja was charged with personally using a firearm during the commission of the crimes alleged in counts 3, 4, 5 and 6; and the jury separately and expressly found true the allegations Borja had personally used a firearm in committing each of those assaults. Imposition of the gun-use enhancements on all four counts, therefore, was not error. (See 960 [[n]o accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits].)

Because the trial courts sentencing errors involve both improper additions to (20 years) and reductions in (eight years) Borjas aggregate sentence, rather than correct the sentence on appeal, we believe it advisable to permit the trial court to exercise its sentencing discretion in the first instance. (See People v. Ramos, supra, 121 Cal.App.4th at p. 1209.) Accordingly, we remand the case for resentencing.

DISPOSITION

The convictions underlying the judgment are affirmed, but the matter is remanded for resentencing.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

WOODS, J. ZELON, J.

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[1] Statutory references are to the Penal Code unless otherwise indicated.

[2] The responding deputy testified that Andrade, speaking in Spanish, used this term in referring to Borja. According to the deputy, cholo is a slang term for gangster.

[3] Bautista testified he was about 60-70 feet from the black Mustang at the time the shooting started. Detective Steven Skahill, who investigated the crime scene, testified Bautista was approximately 35 feet from the shooting. A streetlight is located midway between the two homes and was illuminated that night.

[4] At the photographic lineup Andrade had admitted to one deputy he was afraid Borja would retaliate against him. When he later failed to appear at the preliminary hearing pursuant to subpoena, he was arrested and incarcerated for 50 days to ensure his appearance at trial. At trial Andrade claimed not to be afraid of testifying and blamed his injury and pain medication for his conflicting statements to the deputies who interviewed him. He also testified he was not aware of any gang activity in his neighborhood.

Bautista failed to appear to testify at Borjas first trial but did appear at the retrial after he was advised the court had issued a bench warrant authorizing his arrest. Although he first claimed his failure to appear was the result of a miscommunication, he later admitted he did not want to testify at trial because of his fears for his family. Bautista had earlier confided to a deputy that he had seen gang members driving past his house and staring, thus making him afraid of gang retaliation against his family.

[5] A 24-year veteran of the Los Angeles County Sheriffs Department, Detective Skahill had been working as a gang investigator for more than 17 years, predominantly out of the station that covers the Hurley Street gang territory.

[6] The trial court imposed consecutive 25-years-to-life terms on counts 1, 3, 4, 5, 6 and 8, plus five year enhancements on each count pursuant to section 667, subdivision (a)(1), plus firearm use enhancements of 25 years to life on count 1 ( 12022.53, subd. (d)), four years on count 3 ( 12022.5, subd. (a)), and 16 months each on counts 4, 5 and 6 (one-third the middle term of four years under 12022.5, subd. (a)), plus gang enhancements of 10 years on count 3 (purportedly under 186.22, subd. (b)(1)(C)) and three years four months on each of counts 4, 5 and 6 (one-third the term of 10 years specified in 186.22, subd. (b)(1)(C)). Sentence on counts 2 and 7 was stayed pursuant to section 654. In summarizing its aggregate sentence the court separately grouped the indeterminate terms (seven terms of 25 years to life) and the determinate enhancements, resulting in the (erroneous) description of the sentence as a determinate term of 58 years plus 175 years to life.

[7] Detective Skahill testified under cross-examination that, typically, not all members of a gang are actively engaged in criminal activity on behalf of the gang. He described younger individuals who might emulate active gang members as wannabes and acknowledged many older gang members, or hangers on, withdraw from active participation in criminal activity as they settle down with jobs and families. Borja argues the testimony did not support the conclusion he acted to benefit a gang because he fell within the profile of a former gang member due to his age (30-31), his employment and his relationship with his common-law wife and their two daughters.

[8] Field interview reports are tools used by law enforcement to track gang contacts in a particular neighborhood. According to the reports submitted by Detective Skahill, local police had detained Borja twice in 2005, at which time he was identified as a member of the Hurley Street gang. The defense introduced two additional field interview reports from 2001, which characterized Borja as an inactive member of the Hurley Street gang. The trial court excluded evidence that Borja had been incarcerated from 2001-2005 for possession of drugs in violation of the terms of his then-parole.

[9] Andrade and Bautistas subsequent reluctance to testify and their admitted fear of gang retaliation fortified the inference the crime benefited the Hurley Street gang.

[10] We decline Borjas invitation to consider the constitutionality of the trial courts evidentiary ruling under Sullivan v. Louisiana (1993) 508 U.S. 275 [113 S.Ct. 2078, 124 L.Ed.2d 182], because he failed to raise that issue at trial. (See People v. Partida (2005) 37 Cal.4th 428, 435-436.) To the extent Borja claims the failure to exclude Skahills testimony rendered the trial fundamentally unfair, such contention is rendered moot by our determination the testimony was properly admitted. Likewise, we reject Borjas argument that our recent decision in People v. Albarran (2007) 149 Cal.App.4th 214, requires reversal here. The issue in Albarran was whether the underlying convictions should be reversed as the product of unduly prejudicial gang testimony after the trial court had rejected the jurys finding on the gang enhancement allegation. There is no comparable issue here.

[11] Defense counsel, having claimed continuing objections to Detective Skahills gang expert testimony on the basis of Evidence Code section 352 and an unspecified lack of foundation, failed to object when Skahill referred to specific facts involving Borja, thus forfeiting the opportunity for the court to caution the witness or to deliver a limiting instruction. (See Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.)

Moreover, assuming those blanket objections were sufficient to preserve the issue for appeal (but see People v. Zepeda, supra, 87 Cal.App.4th at p. 1208 [defense counsels general objection to entirety of gang expert testimony insufficient to preserve objection to expert opinion on issue of defendants intent to benefit gang]),the vast bulk of Detective Skahills testimony was properly framed in terms of gang culture and practices, even if he lapsed occasionally in mentioning specific facts about Borjas location and conduct. Any impropriety in this testimony was not prejudicial as it is not reasonably probable Borja would have received a more favorable result had the question been asked in proper hypothetical form. (See People v. Watson (1956) 46 Cal.2d 818, 836.) As explained above, there was more than sufficient additional evidence from which the jury could reasonably infer the crimes were committed for the benefit of the Hurley Street gang. (Cf. People v. Ferraez, supra, 112 Cal.App.4th at p. 931 [[E]xperts testimony alone would not have been sufficient to find the drug offense was gang related. But here it was coupled with other evidence from which the jury could reasonably infer the crime was gang related].)

[12] Borja does not contend the Bautista assault convictions are lesser included offenses of his conviction on count 8, which alleged a violation of section 246 based on the shot that hit the Bautistas garage.

[13] Although Borja attempts to distance his case from the holding and analysis of Daniel R., the facts of that caseclosely parallel the facts here. In Daniel R., the juvenile was accused of shooting a firearm at an occupied vehicle, not an inhabited dwelling. (20 Cal.App.4th at p. 241 & fn. 2.) As we posited in that case, If one can violate section 246 while discharging a firearm at a vehicle at a location beyond the reasonable range or striking distance of a human target, it appears one may violate section 246 without having the present ability to inflict an injury on the person of another. (Daniel R., at p. 247.)

[14] As quoted by the Supreme Court in Williams, supra, 26 Cal.4th at page 783, former CALJIC No. 9.00 given at the trial provided, in part, the crime of assault requires proof the defendant willfully and unlawfully committed an act that by its nature would probably and directly result in the application of physical force on another person.

[15] This language is comparable to that appearing in the current Judicial Council approved instruction: When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the application of force to someone. (Judicial Council of California Criminal Jury Instructions (2007) CALCRIM No. 875.)

[16] We requested the parties submit supplemental letter briefs addressing People v. Felix (2000) 22 Cal.4th 651, and the trial courts apparent error in calculating the gun-use enhancement terms on counts 4, 5 and 6.