P. v. Reaza

Filed 10/11/06 P. v. Reaza CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed in part, reversed in part and remanded for resentencing.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Kristen K. Chenelia, Deputy Attorney General, for Plaintiff and Respondent.

Defendant was the driver in a drive-by shooting which killed one person and injured another. He challenges his conviction for discharge of a firearm from a vehicle and challenges the sufficiency of the evidence in support of gang enhancement allegations. He also presents a number of challenges to the sentence. We will affirm the conviction. However, we agree that the sentence on count 3 must be stayed pursuant to Penal Code section 654 and that the parole revocation fine must be stricken. We will otherwise affirm the sentence.

PROCEDURAL HISTORY

A jury found defendant guilty of murder (count 1; Pen. Code, § 187, subd. (a)),^[1] attempted murder (count 2; §§ 187, subd. (a), 664), discharging a firearm from a motor vehicle (count 3; § 12034, subd. (c)), discharging a firearm at an inhabited dwelling house (count 4; § 246), and unlawful possession of a firearm by an ex-felon (count 5; § 12021, subd. (a)(1)). The jury found that as to count 1, the crime was intentional and perpetrated by means of discharging a firearm from a motor vehicle, at a person outside the vehicle, with the intent to cause death. The jury further found that a principal in the offense intentionally discharged a firearm at another person, causing death, and that defendant intentionally killed the victim while defendant was an active participant in a criminal street gang and acting for gang purposes. (§§ 12022.53, subds. (d) and (e)(1), 190.2, subd. (a)(21) & (22).) As to count 2, the jury found that a principal personally and intentionally discharged a firearm and proximately caused great bodily injury or death. (§ 12022.53, subds. (d) & (e)(1).) The jury further found that defendant committed counts 1 through 4 for the benefit of a criminal street gang. (§ 186.22, subd. (b).)^[2]

Defendant admitted having suffered a prior strike conviction.

The court sentenced defendant to life in prison without possibility of parole on count 1. It doubled the term based on defendant’s single strike prior. The court imposed a consecutive term of 25 years to life, pursuant to section 12022.53, subdivisions (d) and (e)(1), on count 1. It imposed a consecutive sentence of life with possibility of parole, with a minimum parole eligibility term of 15 years (doubled to 30 years) on count 2. It imposed a consecutive term of 25 years to life on count 2 pursuant to section 12022.53, subdivisions (d) and (e)(1). On count 4, the court imposed a term of 15 years to life (doubled to 30 years), pursuant to section 186.22, subdivision (b)(4)(B). The gang enhancements under section 186.22, subdivision (b)(1) on counts 1, 2 and 4 were stayed. The court imposed a consecutive determinate term of 10 years, plus a five-year gang enhancement, on count 3, and a consecutive term of 16 months on count 5.

Defendant filed a timely notice of appeal.

FACTS

Pedro Cortes was outside his house talking to Ricardo Sanchez and Victor Torres. All three were members of Dogs Town Riva, a Riverside gang. Cortes heard two or three gunshots, and dropped to the ground. Before he heard the shots, he heard Spanish music. He saw a dark red SUV, which he heard speeding away after the shots were fired. He saw that Sanchez was bleeding, and called 911. Sanchez died several days later of a shotgun wound to the head. Cortes was hit by a shotgun pellet but was not seriously injured. Torres had gone into the garage shortly before the shooting and was not injured.

Shotgun wadding, pellets and other debris at the scene were consistent with a 12-gauge shotgun.

Cortes and a neighbor who saw the vehicle leaving after the shooting described a red Chevy Blazer owned by defendant’s wife as being similar to the vehicle driven in the shooting. Another witness identified defendant’s Blazer as the vehicle he saw. Defendant’s wife testified that defendant was driving the Blazer on the night of the shooting.

Defendant was arrested later that night for burglary. He was driving a red Chevy Blazer. Gilbert Fimbres and Junior Herape were with him. Defendant had a samurai sword in his possession which belonged to the owner of the burgled residence, but no shotgun.

Defendant told police that he was a member of West Side Riva and that his moniker was Oso. Fimbres and Herape were both West Side Riva members as well. They were both about 10 years younger than defendant.

A 12-gauge shotgun was later recovered from a pickup truck belonging to the mother of Hualdo Mendoza. The truck was impounded because Mendoza was stopped while driving the truck without a driver’s license. Mendoza testified under a grant of immunity that defendant had given him the shotgun. Defendant was in a market parking lot in a red SUV with two young Mexican males. He told Mendoza to keep the shotgun “low” because they had just used it to shoot at some “Dog Towners.”

West Side Riva and Dogs Town Riva are rival gangs. At the time of the shooting, the two gangs were having problems with each other. West Side Riva was trying to drive Dogs Town Riva out of the area, and there had been several shootings and assaults between members of the two gangs.

Defendant admitted to police that he drove the SUV that night and that Fimbres fired the shots at Cortes. He denied knowing in advance that Fimbres intended to shoot.

The parties stipulated that West Side Riva is a criminal street gang within the meaning of Penal Code section 186.22.

DISCUSSION

DEFENDANT WAS PROPERLY CONVICTED OF VIOLATING PENAL CODE SECTION 12034, SUBDIVISION (C)

Defendant contends that he should not have been convicted of violating section 12034, subdivision (c), willfully and maliciously discharging a firearm at another person from a vehicle, because it was undisputed that he was not the shooter. He contends that as the driver of the vehicle, he could only have been charged with violating section 12034, subdivision (b), knowingly permitting another person to discharge a firearm from a vehicle owned or driven by the defendant. He contends that subdivision (b) is a special statute which applies specifically to the driver of a vehicle from which another person discharges a firearm, and that he therefore could not be convicted under subdivision (c), which he contends is a general statute. The Attorney General counters that subdivision (b) does not bar prosecution of the driver of a vehicle for aiding and abetting a violation of subdivision (c), and that there is substantial evidence that defendant aided and abetted Fimbres in the shooting.

A special statute is an exception to a general statute, relating to a particular subject. The special statute governs with respect to that subject, even though the general provision, standing alone, would be broad enough to include the subject to which the special statute relates. (People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 808.) Generally speaking, a person may not be prosecuted under a general penal statute providing for a greater punishment when there is a special statute specifically governing the conduct as alleged. (People v. Cockburn (2003) 109 Cal.App.4th 1151, 1158-1159.) The rule applies (1) when each element of the general statute corresponds to an element on the face of the special statute, or (2) when it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute. (People v. Watson (1981) 30 Cal.3d 290, 296-297.) This rule is not one of statutory or constitutional mandate, however, but is merely an aid to judicial interpretation and determination of legislative intent. (People v. Walker (2002) 29 Cal.4th 577, 586; People v. Cockburn, supra, 109 Cal.App.4th at pp. 1158, 1160.) And, it applies only if the two statutes conflict or overlap in such a way that it is appropriate to infer that the Legislature intended only one of the two statutes to apply to the conduct alleged. If the statutes can be harmonized, they are given concurrent effect. (People v. Betts (2005) 34 Cal.4th 1039, 1058.)

Section 12034, subdivisions (b) and (c) do not facially meet the criteria for general and special statutes enunciated by the California Supreme Court because a violation of subdivision (b) will not “necessarily or commonly result” in a violation of subdivision (c). Subdivision (b) provides that “Any driver or owner of any vehicle, whether or not the owner of the vehicle is occupying the vehicle, who knowingly permits any other person to discharge any firearm from the vehicle is punishable by imprisonment in the county jail for not more than one year or in state prison for 16 months or two or three years.“ (§ 12034, subd. (b).) Subdivision (c) provides that “Any person who willfully and maliciously discharges a firearm from a motor vehicle at another person other than an occupant of a motor vehicle is guilty of a felony punishable by imprisonment in state prison for three, five, or seven years.” (§ 12034, subd. (c), emphasis added.) Under subdivision (b), the driver or owner of the vehicle may be charged with a misdemeanor if another person in the vehicle shoots in the air or shoots at an object rather than at a person. The act of permitting another person to discharge a firearm from a vehicle thus will not “necessarily or commonly” result in a willful and malicious discharge of a firearm at another person. Moreover, the two subdivisions proscribe entirely different conduct. Subdivision (b) imposes a legal duty on owners and drivers to prevent the discharge of firearms from their vehicles by others (People v. Laster (1997) 52 Cal.App.4th 1450, 1467), while subdivision (c) penalizes the actual shooter. Thus, while the driver or owner can be prosecuted under subdivision (c) if he or she is the shooter, he or she cannot be prosecuted under subdivision (b) unless another person in the vehicle is the shooter.

The two provisions also involve significantly different mental states: Subdivision (b) penalizes an owner or driver who merely “knowingly permits” another person to discharge a firearm, while subdivision (c) penalizes a person who willfully and maliciously discharges a firearm at another person. Because the two subdivisions penalize such disparate conduct, they do not conflict. Moreover, because subdivision (c) penalizes far more serious conduct than does subdivision (b), it is reasonable to infer that the Legislature intended the greater punishment to apply. For both reasons, there is no bar to prosecuting defendant under subdivision (c) for his conduct as an aider and abettor.^[3]

SUBSTANTIAL EVIDENCE SUPPORTS THE GANG ENHANCEMENTS

Defendant contends that there was no substantial evidence that he committed the offenses with the specific intent to “promote, further, or assist in any criminal conduct by gang members,” as is required to support the gang enhancements imposed on counts 1 through 4.^[4]

Defendant contends that the evidence fails as a matter of law to prove that the drive-by shooting was committed with the requisite specific intent because there is no evidence that the shooting was intended to promote any other criminal conduct by gang members. Defendant relies on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099. In that case, the Ninth Circuit held that section 186.22, subdivision (b)(1) requires such a showing. We disagree with Garcia‘s interpretation, and we are not bound to follow it. (People v. Burnett (2003) 110 Cal.App.4th 868, 882 [federal authority is not binding in matters involving state law].) By its plain language, the statute requires a showing of specific intent to promote, further or assist any criminal conduct by gang members, rather than other criminal conduct. (People v. Romero (2006) 140 Cal.App.4th 15, 19, citing People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Thus, the specific intent element is satisfied if there is substantial evidence that defendant acted with the specific intent to assist Fimbres and Herape in committing the crimes. (People v. Morales, at. p. 1198.)

Intent is rarely susceptible of direct proof and usually must be inferred from the circumstances surrounding the offense. (People v. Pre (2004) 117 Cal.App.4th 413, 420.) Viewed in the light most favorable to the judgment (People v. Johnson (1980) 26 Cal.3d 557, 576), the evidence establishes that defendant, Fimbres and Herape were members of West Side Riva, while Cortes, Sanchez and Torres were members of a rival gang, Dogs Town Riva. There had recently been a spate of shootings and assaults between the two gangs, and West Side Riva was determined to drive Dogs Town Riva out of the area. Defendant told Mendoza after the shooting that they had just shot at some “Dog Towners,” and West Side Riva took credit for the shooting. This evidence is sufficient to support the conclusion that defendant acted with the specific intent to commit a drive-by shooting with Fimbres and Herape, and is thus sufficient to prove that he acted with the intent to assist in criminal conduct by gang members. (People v. Morales, supra, 112 Cal.App.4th at p. 1198.)

THE SENTENCE ON COUNT 3 MUST BE STAYED PURSUANT TO SECTION 654

Defendant argues, and respondent concurs, that his sentence on count 3, discharging a firearm from a vehicle, must be stayed pursuant to section 654. We agree.

Section 654 provides that “[a]n act or omission 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.” (§ 654, subd. (a).) Here, the same act of shooting from the vehicle is the factual basis for counts 1, 2, 3 and 4. Because there were separate victims in counts 1 (murder), 2 (attempted murder) and 4 (discharging a firearm at an inhabited dwelling),^[5] imposition of an unstayed sentence on each of those counts is permissible. (People v. Oates (2004) 32 Cal.4th 1048, 1063 [section 654 does not apply to crimes of violence against multiple victims].) Because there was no additional victim in count 3, section 654 mandates that the sentence be stayed. This necessarily includes the gang enhancement imposed on that count. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 711.)

Because we have determined that the sentence, including the enhancement, on count 3 must be stayed on this basis, we need not address defendant’s other contentions concerning staying or striking the enhancement on that count.

SECTION 654 DOES NOT PRECLUDE IMPOSITION OF AN UNSTAYED SENTENCE ON COUNT 4

Defendant contends that section 654 bars separate punishment on count 4, discharging a firearm at an inhabited dwelling, because it was the target offense for counts 1 and 2, and because it involves the identical act on which count 1 (murder) is based. However, at the time of the shooting, Torres was in the garage, and Cortes’s mother and sister were inside the house. Therefore, the multiple victim exception applies to count 4. (People v. Oates, supra, 32 Cal.4th at p. 1063.)

SECTION 654 DOES NOT PRECLUDE IMPOSITION OF AN UNSTAYED SENTENCE ON COUNT 5

Defendant contends that the sentence on count 5, possession of a firearm by an ex-felon, must be stayed pursuant to section 654 because he was convicted of possessing the same firearm used in the shooting. Therefore, he contends, his possession of the firearm was merely incidental to and the means of accomplishing the other offenses.

Defendant relies on People v. Kane (1985) 165 Cal.App.3d 480 (Kane). In that case, the defendant was convicted of assault with a deadly weapon with personal use of a firearm, discharging a firearm at a vehicle and possession of a weapon by an ex-felon. The court held, without analysis, that concurrent terms for the latter two offenses were barred by section 654. (Kane, at pp. 483, 488.) Kane has been criticized, however, by this court in People v. Ratcliff (1990) 223 Cal.App.3d 1401 (Ratcliff) and by the Second District Court of Appeal in People v. Jones (2002) 103 Cal.App.4th 1139 (Jones). Those cases concurred that, apart from Kane, the case law has established that possession of a firearm by an ex-felon is subject to section 654 only where the defendant had fortuitously come into possession of the firearm at the very moment of commission of an offense in which he used the firearm. If, on the other hand, the defendant possessed the firearm before he used it to commit another crime, the antecedent possession is a separate, and separately punishable, offense. (Ratcliff, supra, 223 Cal.App.3d at pp. 1410-1414; Jones, supra, 103 Cal.App.4th at pp. 1142-1149.)

In this case, unlike Kane, and unlike Jones and Ratcliff, defendant did not use the gun to commit the shooting, and there is no evidence that he possessed the shotgun prior to the shooting. Rather, the prosecution’s theory was that defendant possessed the shotgun only after Fimbres used the shotgun in the commission of the other crimes, when defendant handed the shotgun to Mendoza and told him to “keep it low” because it had just been used to shoot at some Dog Towners. Because defendant came into possession of the shotgun only after the other offenses were complete, his illegal possession of the shotgun was clearly not the means of accomplishing the other offenses. Ratcliff, Jones and Kane are therefore not applicable.

Here, the evidence showed that defendant took control of the shotgun solely for the purpose of escaping detection by disposing of the weapon. An offense committed for the purpose of escaping detection or arrest may be deemed to be committed in furtherance of an objective separate from the commission of the primary offense, or it may be deemed to be part and parcel of the primary offense, depending upon the circumstances. (People v. Saffle (1992) 4 Cal.App.4th 434, 438-440; People v. Marintez (1980) 109 Cal.App.3d 851, 858.) The determination whether an offense is separate or in furtherance of a single objective in common with other offenses is a question of fact for the trial court, which is vested with broad latitude in making its determination. (Jones, supra, 103 Cal.App.4th at p. 1143.) In the absence of any reference to section 654 during sentencing, as in this case, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective. (See, e.g., People v. Blake (1998) 68 Cal.App.4th 509, 512; see also People v. Osband (1996) 13 Cal.4th 622, 730-731.) We uphold the court’s determination, express or implied, if it is supported by substantial evidence. (Jones, supra, 103 Cal.App.4th at p. 1143.) For the reasons stated above, the evidence supports the conclusion that defendant’s possession of the shotgun was in furtherance of an objective separate from the commission of the drive-by shooting. Section 654 therefore does not bar a separate, unstayed sentence on that count.

THE COURT PROPERLY IMPOSED BOTH A TERM OF LIFE WITHOUT POSSIBILITY OF PAROLE AND AN ENHANCEMENT PURSUANT TO SECTION 12022.53 ON COUNT 1

In his opening brief, defendant contended that subdivision (j) of section 12022.53 precluded imposition of both a life sentence and a section 12022.53 enhancement on count 1. In his reply brief, he acknowledges that the California Supreme Court rejected this argument in People v. Shabazz (2006) 38 Cal.4th 55. (Id. at pp. 69-70.) We need not address this issue further.

THE PAROLE REVOCATION FINE MUST BE STRICKEN

Finally, defendant contends that the court improperly imposed a restitution fine pursuant to section 1202.45. Respondent concedes that the fine must be stricken.

Section 1202.45 provides that “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person’s parole is revoked.” Imposition of a parole revocation fine pursuant to section 1202.45 is inappropriate where the defendant’s overall sentence does not anticipate a period of parole, as where the defendant is sentenced to life without the possibility of parole. (People v. Petznick (2003) 114 Cal.App.4th 663, 687; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1184-1186.) We will therefore order the fine stricken.

DISPOSITION

The conviction is affirmed, as is the indeterminate portion of the sentence (counts 1, 2, and 4). The determinate term is vacated and the cause is remanded for resentencing. The trial court is directed to stay the sentence on count 3, including the enhancement, and to strike the parole revocation fine (§ 1202.45).^[6]

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Gaut

J.

/s/ King

J.

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^[1] All further statutory citations refer to the Penal Code.

^[2] The Attorney General incorrectly states that the jury found that defendant personally discharged a firearm in the commission of the offenses charged in counts 1, 2, and 4. The information alleged, and the jury found, that a principal personally discharged a weapon in the commission of counts 1 through 4. The case was tried on the theory that Gilbert Fimbres was the shooter and that defendant was the driver of the vehicle. There was neither an allegation nor a finding that defendant personally used or discharged a firearm.

^[3] The Attorney General discusses the sufficiency of the evidence to support the conviction on an aiding and abetting theory. We do not perceive defendant’s argument as incorporating a claim of insufficiency of the evidence. Rather, defendant’s argument is that he could not be convicted of violating section 12034, subdivision (c) as a matter of law. We therefore need not address the sufficiency of the evidence in support of the conviction.

^[4] Enhancements were imposed pursuant to section 12022.53 on counts 1 and 2, and pursuant to section 186.22, subdivision (b) on counts 3 and 4.

Section 12022.53 provides for sentence enhancements for crimes committed with the use of a firearm under various circumstances. Subdivision (e)(1) of section 12022.53 makes the enhancement provisions applicable to any person who is a principal in the commission of a crime if he or she also violated section 186.22, subdivision (b) and any principal in the commission of the crime meets the criteria of section 12022.53, subdivision (b), (c) or (d). Section 186.22, subdivision (b) provides for a variety of sentence enhancements if 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), (4).)

^[5] See discussion below.

^[6] Count 3 is currently the principal term. We therefore remand for resentencing to allow the court to determine the appropriate sentence on count 5, which will now become the principal term.