Filed 2/10/21 P. v. Lunar CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Bernie C. LaForteza, Judge. Affirmed as modified.

Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

A jury convicted David Lunar of first degree murder, attempted premeditated murder, shooting at an occupied vehicle, and two counts of being a felon in possession of a firearm. The jury also found true firearm allegations and gang enhancements. The trial court sentenced Lunar to 89 years to life in state prison, plus a determinate term of 45 years, and imposed restitution fines and assessments. Lunar appeals, and we affirm his convictions and modify the sentence.

BACKGROUND

An information alleged Lunar and Joe Garcia^[1] murdered Fernando Zamorano on August 13, 2016, and Lunar personally and intentionally discharged a firearm causing Zamorano’s death (Pen. Code,^[2] §§ 187, subd. (a), 12022.53, subds. (b), (c), (d), count 1), a firearm he unlawfully possessed as a felon (§ 29800, subd. (a)(1), count 2). The information also alleged on August 15, 2016, Lunar committed attempted premeditated murder against Eduardo Rodriguez (§ 664/187 subd. (a), count 3), and shot at an occupied motor vehicle on the same date (§ 246), personally and intentionally discharging a firearm as in count 1 (count 4), which he unlawfully possessed as a felon (§ 29800, subd. (a)(1), count 5). All the counts had been committed for the benefit of or in association with a criminal street gang (§ 186.22, subds. (b)(1)(A), (b)(1)(C), (b)(4)). Lunar had a prior serious felony conviction that was a prior strike. (§§ 667, subds. (a)(1), (d), 1170.12.)

1. The murder of Zamorano

Midori Mendoza testified she had been friends with Zamorano for about a year at the time of his murder on August 13, 2016. They were members of the V.N.E. (Varrio Nuevo Estrada) gang. He was in the Ticktocks set in Montebello, and she was in the Primos set in Lancaster.

Mendoza was at Zamorano’s house that night. At around 11:00 p.m., Zamorano, Mendoza, and her friend Victoria left the house to go to the liquor store. The women walked and Zamorano rode a bike. Mendoza had seen him get dressed, and knew Zamorano was not armed.

The liquor store was closed, so they went to a nearby bar called Lito’s Cork Room. The Ticktocks V.N.E. set was strong in the area around the bar, and local enemy gangs included the Stoners and the King Cobras. Mendoza was broke, so instead of going into the bar, she stood outside between two bus benches to smoke a cigarette and make phone calls. After about five minutes, Zamorano came out of the bar, asked her what she wanted to drink, and invited her inside. She said no and suggested they go back to his house.

Just then, Mendoza saw two males walking up behind Zamorano from an alley, and told him to be careful. When the men were close enough (about two car-lengths away), Zamorano asked them, “ ‘What’s up,’ ” and then, “ ‘Where are you from?’ ” The men mumbled something. One of them nodded to the other or shook his head, and one said: “ ‘All right, homie,’ ” which was like saying “it’s cool.” As they passed by, Zamorano said: “ ‘All right. Well, this is V.N.E., Minor.’ ” Minor was Zamorano’s gang name. He said that as a solid gang member, to let them know it was V.N.E. territory and who he was. Mendoza explained: “That’s what we do.”

Zamorano walked his bike to stash it. As he turned back toward the bar, Mendoza saw the two men had not gone into the bar but were standing around. One man stood by the door leaning against it so nobody could come out. A surveillance video showed him putting down a beverage can and picking it back up. The other man headed back toward Mendoza and Zamorano, pulling a revolver out of his waistband. She told Zamorano to be careful because the man was “packing,” but she was too late. She heard five rapid shots, and saw the shooter running toward Zamorano, who had his back to her. Zamorano turned around, ran toward her, and fell against her.

The two men ran back toward the alley they had come from. When Victoria ran out of the bar and reached Zamorano, Mendoza ran after the men, who got into a white SUV and sped away.

Mendoza ran back to Zamorano and waited for help, but he took his last breath before the ambulance arrived.

Lunar was the shooter. Mendoza identified Garcia as Lunar’s companion, both at trial and at the preliminary hearing. That night, Zamorano wore a Yankees hat with part of the “Y” crossed out, to stand for V.N.E.

The jury saw a surveillance video showing the events around the shooting outside the bar. Mendoza identified Lunar and Garcia on the video.^[3]

A forensic identification specialist recovered seven cartridge casings and three possible bullet fragments from the scene. The cartridge casings carried head stamps saying

“ ‘9-millimeter Luger W.I.N.’ ”

A deputy medical examiner testified Zamorano’s body had five gunshot entry wounds. The fatal shot entered the back of his left shoulder and passed through the aorta, causing Zamorano’s death in five to 10 minutes. Another shot entered the front of his left pelvis, showing Zamorano had turned around or was in the process of turning to face the shooter. A third shot entered the front of his left thigh, a fourth entered the front of his left ankle, and the fifth went through his left wrist, entering on the palm side.

2. Attempted murder of Rodriguez

Rodriguez testified through a Spanish interpreter that two days after Zamorano’s murder, on the night of August 15, 2016, he was sitting in the driver’s seat of his parked car, smoking a cigarette and charging his phone. Rodriguez looked up, and in the light of streetlamps he saw Lunar riding a bicycle toward the front of the car. From right outside the driver’s door, Lunar asked Rodriguez through the half-open window: “ ‘Where are you from?’ ” Rodriguez spoke little English, and in Mexico he had learned that meant “Which country are you from?” He asked Lunar if he spoke Spanish. Lunar repeated: “ ‘Where are you from?’ ” A moment later, Rodriguez heard a flurry of shots. He ducked his head down on the passenger seat and started to yell, hoping Lunar would think one of the shots had hit him.

Rodriguez looked up and saw Lunar riding away on his bicycle. He opened the passenger side door and took off running, leaving his phone behind. Rodriguez returned about two minutes later to get his phone and call the police. His car had four bullet holes in the driver’s side door.

Rodriguez’s car was facing east on Repetto Avenue towards Belden. Rodriguez used to live in the area, but after the shooting he was so scared that he moved away.

On September 30, 2016, Rodriguez selected from a six-pack photo array two photos resembling the shooter, including one of Lunar. He told the detective Lunar’s photo looked most like the shooter, but the shooter wore a baseball cap and his eyes looked bigger.

The deputy who responded to the shooting testified Rodriguez was distressed and frightened, and kept looking around. The deputy recovered four bullet casings.

A deputy assigned as a firearms examiner testified the cartridge cases found at the scene of Zamorano’s murder and those found near Rodriguez’s car had been fired by the same nine-millimeter pistol.

After the deputies recovered Garcia’s cell phone from his home but before they could review its contents, the phone had been remotely wiped and returned to factory settings.

3. Gang evidence

A search of Garcia’s home found gang clothing and photographs of Garcia making Stoners 13 gang signs.

On September 15, 2016, a deputy (who also testified as a gang expert) found Lunar riding his bike away from fresh red spray-painted graffiti, not far from Lito’s Cork Room. When the deputy told him to stop, Lunar stopped, pulled a can of red spray paint out of his pocket, and threw it over a fence. The graffiti showed disrespect for rival gangs including V.N.E. and East L.A. 13, and laid claim to the area for the Stoners, contesting the gang boundaries. Lunar told the deputy he had recently joined the Stoners gang with the moniker of G-Money or Gunner, and before that he had been a member of the Wicked Insane Diablos, going by Criminal. He wore a Seattle Mariners hat typically worn by Stoners. “Stoners” was tattooed across the back of his neck, and “S13” was tattooed on his right arm. In his backpack was a blue Los Angeles Dodgers pullover jacket like the one the shooter wore in the surveillance video showing the events outside Lito’s Cork Room the night of Zamorano’s murder.

Lunar acquired two new Stoners 13 tattoos after the tagging incident, and another tattoo of a skull with “Kills” on its bottom teeth. Garcia also had tattoos showing words and symbols associated with membership in Stoners 13.

The Stoners 13 gang had about 40 members, and used the Seattle Mariners and Pittsburgh Steelers symbols or “pretty much anything with an ‘S’ on it.” The gang’s principal activities were drug sales, gun possession, assaults, shootings, robberies, and murder. Rival gang V.N.E., with upwards of 50 members, had had violent conflicts with Stoners 13. Another rival gang was the East L.A. 13. The prosecutor presented evidence of two predicate crimes committed by Stoners 13 members in 2013 and 2015.

Sonny Luna, Sr., was an older and well-respected Stoners 13 member. Many gang members would call his house to check in. Lunar called Luna from jail and mentioned another Stoners 13 member called Stomper, who was also in custody. Lunar called Luna again from jail, and put Garcia on the phone. Garcia called Luna “homey.”

The prosecutor gave the deputy a hypothetical in which an established long-term member of Stoners 13 drives a new member, the shooter, to a bar in rival gang territory early in the morning, and parks the car in an alley. The two Stoners 13 members walk towards two V.N.E. members. One V.N.E. member asks where they are from and when neither responds, says the name of his gang and his moniker. The driver and shooter keep walking but turn to look behind them to make sure the V.N.E. member is not watching. The shooter pulls a revolver from his waistband and conceals it under his jacket. The V.N.E member has turned away. The driver and shooter confer for two seconds by the bar door. The shooter then walks toward the V.N.E. member and while the driver watches, the shooter shoots the V.N.E. member five times, killing him. The deputy replied the hypothetical was “most definitely” committed for the benefit of the Stoners 13 gang. Committing a murder in enemy territory sent a message to rival gangs, instilled fear in the community, and discouraged calling the police. The older gang member was there as lookout, backup, and witness.

The prosecutor gave another hypothetical in which two days later, the new Stoners 13 member, armed with a handgun, rides his bike in the territory of another rival gang, East L.A. 13. He asks a young man sitting alone in a parked car where he is from, and when the man replies he’s from Mexico, shoots at the car, hitting the driver’s side door four times before riding away. The deputy agreed that also was done for the benefit of Stoners 13. The shooter wanted to instill fear in the rival gang and in the community. To lay claim to the area, the gang member could announce his gang name, or create graffiti in the area afterwards.

Lunar’s recent gang moniker “Gunner” showed he was willing to carry a gun and use it, and committing murder and attempted murder would have enhanced his standing in Stoners 13 and elevated the gang itself.

4. Jury verdict and sentencing

The jury found Lunar guilty on all five counts, found true the firearm allegations, and found true the gang enhancements. The trial court denied Lunar’s motion for new trial. Lunar admitted a prior strike offense in 2015 (robbery, § 211).

The court sentenced Lunar to 25 years to life on count 1 (first degree murder of Zamorano), doubled for the prior strike to 50 years to life, plus another 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)), and five years for the prior serious felony enhancement (§ 667, subd. (a)(1)). The court imposed a consecutive term of seven years to life on count 3 (attempted murder of Rodriguez), doubled to 14 years to life for the prior strike, plus a consecutive term of 20 years for the firearm enhancement and another consecutive 10 years for the gang enhancements. Counts 2 and 5 (both possession of a firearm by a felon, § 29800, subd. (a)(1)) resulted in two 16-month terms to run concurrently. The court stayed under section 654 a sentence on count 4 (shooting at an occupied vehicle). The total sentence was 89 years to life, plus a determinate term of 45 years. The court also ordered Lunar to pay a $10,000 restitution fine and a parole revocation fine (stayed) in the same amount; a $40 court operations assessment on each count; and a $30 court facilities assessment on each count.

Lunar filed a timely notice of appeal.

DISCUSSION

1. Substantial evidence did not support an instruction on the lesser included offense of heat-of-passion voluntary manslaughter

Lunar argues the trial court erred when it refused his request to instruct the jury on heat-of-passion voluntary manslaughter as a lesser included offense of the murder of Zamorano as charged in count 1.

After the evidentiary portion of the trial, the court turned to the list of instructions. Defense counsel argued for instructions on self-defense and imperfect self-defense. The trial court at first refused the request. Counsel then argued the video showed Zamorano had his hands behind him when he spoke to Garcia and Lunar and seemed “hyper,” so that Lunar could have feared Zamorano was carrying a weapon. The court viewed the video again, and stated although it saw no substantial evidence of self-defense, it would give those instructions because that was Lunar’s defense theory. (See People v. Breverman (1998) 19 Cal.4th 142, 157 [“nstructional duty arises ‘only if it appears that the defendant is relying on such a defense, [i]or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.’ ” (First italics added.)].)

Defense counsel then argued Zamorano’s question “ ‘Where are you from’ ” was an incitement to violence, requiring instructions on provocation and the lesser included offense of heat-of-passion voluntary manslaughter. The court disagreed that a gang reference or challenge could be adequate provocation and denied the request.

Even without a request, a court trying a criminal case must instruct on general legal principles relevant to the issues raised by the evidence and necessary for the jury to understand the case. (People v. Enraca (2012) 53 Cal.4th 735, 758 (Enraca).) To justify such an instruction, substantial evidence—evidence from which a reasonable jury could conclude the facts supported the instruction—must appear in the record. (Ibid.) Murder can be reduced to voluntary manslaughter “ ‘if the victim engaged in provocative conduct that would cause an ordinary person with an average disposition to act rashly or without due deliberation and reflection.’ ” (Id. at p. 759.) The victim’s behavior must have been objectively provocative, enough to cause an ordinary person with an average disposition to act rashly or without deliberating or reflecting. “The standard is not the reaction of a ‘reasonable gang member.’ ” (Ibid.) And the evidence must show the accused was actually under the influence of a strong passion induced by the victim’s objectively provocative conduct, and acted with passion rather than judgment. (Ibid.)

Our Supreme Court has “rejected arguments that insults or gang related challenges would induce sufficient provocation in an ordinary person to merit an instruction on voluntary manslaughter.” (Enraca, supra, 53 Cal.4th at p. 759.) Zamorano’s “ ‘Where are you from’ ” was not substantial evidence of provocation sufficient for a defense of heat-of-passion voluntary manslaughter.

2. Substantial evidence did not support a pinpoint instruction on provocation sufficient for the lesser included offense of second degree murder

Lunar also claims the trial court erred when it did not instruct the jury that provocation insufficient to support

heat-of-passion voluntary manslaughter may be enough to show he did not kill with the premeditation and deliberation required for first degree murder, resulting in a conviction of second degree murder. He did not request such an instruction, which “is a pinpoint instruction relating particular evidence to an element of the offense, and therefore need not be given on the court’s own motion.” (People v. Rogers (2006) 39 Cal.4th 826, 878.) The trial court instructed the jury on second degree murder, and was not required sua sponte to give the pinpoint instruction further explaining the principles behind the instruction. (Id. at p. 879.) Lunar had the burden to request the instruction, and his failure to do so forfeited any claim of error. (People v. Jennings (2010) 50 Cal.4th 616, 675.) Nor did he object that the trial court violated his right to present a complete defense, so he has not preserved his claim based on that constitutional theory. (People v. Bradley (2012) 208 Cal.App.4th 64, 88.) And “[t]he evidentiary premise of a provocation defense is the defendant’s emotional reaction to the conduct of another, which emotion may negate a requisite mental state.” (People v. Ward (2005) 36 Cal.4th 186, 215.) Mendoza testified Zamorano asked Lunar and Garcia where they were from, one of them nodded and the other said, “ ‘All right, homie,’ ” and then as they passed Zamorano identified himself as V.N.E. and claimed the gang territory. The record contains no evidence of an emotional response by Lunar. (Ibid.)

Lunar argues his counsel’s failure to request the instruction was ineffective assistance. On this direct appeal, he has not shown counsel’s performance was deficient. The appellate record must demonstrate counsel could not have had a rational tactical reason not to request the instruction, and we will grant relief only if the defendant shows a reasonable probability the result would have been different if not for counsel’s mistake. (People v. Lucas (1995) 12 Cal.4th 415, 442; People v. Avena (1996) 13 Cal.4th 394, 418.) Counsel may reasonably have chosen not to ask for the instruction because, as we explained above, no evidence showed Lunar had an emotional response to Zamorano’s identification of himself as a V.N.E. member, and as we explain below, the evidence showed Lunar had time to deliberate and premeditate.

In any event, Lunar has not shown prejudice. The instructions as given told the jury that if the prosecution proved beyond a reasonable doubt that Lunar committed an act causing the death of another person with malice aforethought, express or implied, he was guilty of second degree murder; only if he acted deliberately and with premeditation was he guilty of first degree murder; and if he made the decision to kill Lunar “rashly, impulsively, or without careful consideration,” he did not act with deliberation and premeditation. The jury would have understood that the prosecution’s burden to prove deliberation included the burden to negate any reasonable doubt that Lunar acted rashly under any amount of provocation by Zamorano, and if the evidence showed he did act rashly, he did not deliberate and premeditate and could be found guilty only of second degree murder. The jury convicted Lunar of first degree murder, showing they did not believe he acted rashly or impulsively.

3. Sufficient evidence supported Lunar’s conviction of first degree murder

Lunar argues no substantial evidence showed he acted with premeditation and deliberation when he killed Zamorano by shooting him five times. He is wrong.

We consider “whether any rational trier of fact, not the reviewing court, could have been persuaded by the evidence beyond a reasonable doubt” to find that Lunar premeditated and deliberated, even if the record evidence allows for other possibilities. (People v. Francisco (1994) 22 Cal.App.4th 1180, 1192, italics added.)

Lunar and Garcia, both members of Stoners 13, drove to the territory of a rival gang, V.N.E. Carrying a loaded gun, Lunar walked with Garcia toward the door of Lito’s Cork Room, passing Zamorano on the way. Lunar’s arrival in enemy gang territory in possession of the gun is evidence of planning “consistent with intent to kill a rival gang member even if it does not provide solid evidence of prior planning to kill this particular victim,” and his interaction with Zamorano is evidence that he was motivated by the rivalry between Stoners 13 and V.N.E. (People v. Wells (1988) 199 Cal.App.3d 535, 540-541.)

Lunar walked past Zamorano after he asked Lunar where he was from and identified himself as a member of a rival gang. Lunar then paused at the door to the bar while Garcia put down and picked up his beverage can and leaned against the door. Lunar had the time and opportunity to ignore Zamorano’s challenge. Instead, he turned and headed away from the door, pulled the gun from his waistband, and fired as he ran toward Zamorano. Premeditation requires considering the act beforehand, and deliberation requires careful thought and weighing the pros and cons of the act, but these processes “do[ ] not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly,’ ” even after an altercation is underway. (People v. Mayfield (1997) 14 Cal.4th 668, 767.) And “[p]remeditation can be established in the context of a gang shooting even though the time between the sighting of the victim and the actual shooting is very brief.” (People v. Sanchez (2001) 26 Cal.4th 834, 849.) Lunar had enough time to make a calculated judgment to kill Zamorano.

The manner of killing adds to the evidence that Lunar premeditated and deliberated. A jury can infer premeditation and deliberation when many shots are fired at close range. (People v. Francisco, supra, 22 Cal.App.4th at p. 1192.) Lunar fired seven times at close range, hitting Zamorano five times as he turned away toward his friend Mendoza. The jury could conclude Lunar was intent on killing Zamorano.

Lunar cites opinions finding the evidence insufficient, but the facts in those cases are different, and they do not establish that the evidence here is below the minimum. Lunar also argues the evidence could be interpreted to show that he acted impulsively, but this argument is better made to a jury. On appeal, we ask only if viewing the evidence in the light most favorable to the prosecution, and presuming every fact a rational jury could reasonably infer from the evidence in support of its verdict, that verdict was supported by the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The record contains sufficient evidence for the first degree murder verdict.

4. Sufficient evidence supported the gang enhancements

Lunar argues no substantial evidence shows the crimes were committed for the benefit of or in association with a criminal street gang with the intent to promote the gang. This claim also fails.

The gang enhancement requires “(1) commission of a felony ‘for the benefit of, at the direction of, or in association with any criminal street gang,’ and (2) with ‘the specific intent to promote, further, or assist in any criminal conduct by gang members.’ ” (People v. Lara (2017) 9 Cal.App.5th 296, 326; § 186.22, subd. (b)(1).) The standard of review for sufficient evidence is the same. (People v. Abillar (2010) 51 Cal.4th 47, 59-60.)

Expert opinion can support a gang enhancement if it has a logical basis and is substantiated. (People v. Vang (2011) 52 Cal.4th 1038, 1046, 1048.) Lunar does not argue the deputy was not qualified to testify as an expert.

Lunar argues “[t]he prosecution’s evidence was limited to appellant’s gang membership and tattoos, and generalized testimony from its gang expert.” We disagree; there was much more. Viewing the evidence in the light most favorable to the jury’s true findings on the gang enhancement, there was sufficient evidence that Lunar committed the offenses for the benefit of a street gang with the intent to promote the gang.

With Garcia, a senior member of Lunar’s gang Stoners 13 as a witness, Lunar went into rival V.N.E. territory carrying a concealed and loaded gun. Mendoza testified they walked past Zamorano, who asked where they were from. One of them said, “ ‘All right, homie,’ ” and Zamorano then identified himself as V.N.E. and gave his gang moniker, which Mendoza testified was to announce it was V.N.E. territory and Zamorano was a solid gang member. Garcia and Lunar reached the door of the bar, and after a couple of seconds, Lunar turned, headed back toward Zamorano, pulled a revolver out of his waistband, and shot Zamorano five times. Mendoza’s testimony established Lunar carried a loaded gun into V.N.E. territory and shot and killed a V.N.E. member who challenged him. The prosecutor gave the gang expert a very similar hypothetical which the expert testified definitely was committed for the benefit of Stoners 13. A murder of a rival gang member in that gang’s territory benefitted the shooter’s gang by sending a message to the rival gang and instilling fear in the community.

Two days later, Lunar rode his bicycle up to Rodriguez as he sat in his car parked in territory disputed with another rival gang, and twice asked Rodriguez where he was from. When Rodriguez asked Lunar if he spoke Spanish, Lunar fired four times into the driver’s side door with the same gun, and rode away. Rodriguez testified he was frightened and moved out of the area. His testimony established not only that Lunar issued a gang challenge in a rival gang’s territory and shot at Rodriguez when he did not respond, but also that Rodriguez was so frightened that he moved out of the area. Given a similar hypothetical, the gang expert testified the shooting benefitted Stoners 13, showing the rival gang Stoners 13 was willing to shoot, and instilling fear in the community.

The gang expert testified he had stopped Lunar a month later as, carrying a spray paint can, Lunar rode his bike away from fresh red graffiti near the bar, which laid claim to the area for the Stoners and disrespected V.N.E. Lunar told the gang expert he had been a Wicked Insane Diablo and recently joined Stoners 13 with the moniker of “Gunner.” He wore Stoners 13 attire and had Stoners 13 gang tattoos. When in jail, Lunar twice called an older, well-respected Stoners member and put Garcia on the phone. This established Lunar was a Stoners 13 member. The gang expert testified that creating Stoners 13 graffiti in the area would lay claim to the area, and Lunar’s recent moniker “Gunner” showed he was willing to carry a gun and use it.

The testimony about Lunar’s murder of Zamorano, his attempted murder of Rodriguez, his possession of the gun, and his shooting at Rodriguez’s vehicle bore the hallmarks of gang-related crimes committed by a self-identified gang member in rival gang territory, intended to enhance his status in the gang, benefit his gang, and frighten the rival gangs and the community. The jury did not have to speculate to find the gang enhancements true.

Lunar claims his case is like People v. Perez (2017) 18 Cal.App.5th 598, but the evidence here is much stronger. Perez fired shots at a party for the California State University Sacramento golf team, and the evidence presented “an unusual fact pattern for a gang case—while the shooter was a validated and heavily tattooed gang member, there is no evidence the party was in gang territory, there were no rival gangs present or involved, there were no gang epithets or gang attire, and there is no evidence the shooting was in retaliation or for revenge.” (Id. at p. 601.) By contrast, here, the crimes took place in rival gang territories. The murder victim was a rival gang member who issued a challenge, and the killing was witnessed by Lunar’s companion, a senior member of Lunar’s gang. The attempted murder and shooting into the occupied vehicle used the same gun and followed Lunar’s gang challenge to the unaffiliated victim. Lunar memorialized his gang’s challenge to its rivals with graffiti a month later.

Sufficient evidence supported the gang enhancements.

5. The trial court incorrectly imposed 10-year gang enhancements on counts 1, 3, and 4

The People concede the trial court erred when it imposed determinate 10-year sentences for the gang enhancements on counts 1, 3, and 4.

Lunar received a 25-years-to-life sentence for count 1 (murder) and a seven years-to-life sentence for count 3 (attempted murder), with a 10-year determinate sentence on the gang enhancement on each count. The 10-year determinate sentence is authorized under section 186.22, subdivision (b)(1)(C) when a defendant commits a violent felony to benefit a criminal gang. (People v. Lopez (2005) 34 Cal.4th 1002, 1004.) But when a defendant, like Lunar, commits a gang-related violent felony punishable by life imprisonment (including first degree murder), subdivision (b)(5) applies, imposing instead a minimum term of 15 years before the defendant may be considered for parole. (Lopez, at pp. 1004, 1006-1007.) The 10-year sentences for the gang enhancements on counts 1 and 3 must be replaced with minimum parole eligibility terms of 15 years.

For count 4 (shooting at an occupied vehicle, section 246), Lunar received a midterm sentence of five years, doubled to 10 years under the Three Strikes law, with a 10-year determinate term for the gang enhancement and a 20-year term for the firearm enhancement. The trial court stayed the sentence (including the enhancements) under section 654.

The sentence on count 4 was incorrect. A felony violation of section 246 is a listed crime in section 186.22, subdivision (b)(4)(B), and because the jury found Lunar shot into Rodriguez’s vehicle for the benefit of a street gang, the punishment is life imprisonment with a minimum parole eligibility of 15 years. (People v. Jones (2009) 47 Cal.4th 566, 572.) The correct sentence on count 4 is life imprisonment with a minimum parole eligibility of 15 years, with a 20-year firearm enhancement but no 10-year gang enhancement. (Id. at p. 578.) The sentence remains stayed under section 654.

We modify Lunar’s sentence accordingly.

6. Concurrent sentences were proper on counts 2 and 5

Lunar argues the trial court erred when it ordered his sentences for possession of a firearm by a felon in counts 2 and 5 to run concurrent to his sentences for the primary offenses of the murder of Zamorano in count 1, and the attempted murder of Rodriguez in count 3. The trial court was correct.

Section 654 prohibits multiple punishments for a single act violating different criminal statutes, and whether it applies to a given case is a question of fact for the trial court. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).) If any substantial evidence supports the trial court’s finding, we will not reverse on appeal. (Ibid.) We infer an implied finding even when the court does not reference section 654. (People v. Kelly (2018) 28 Cal.App.5th 886, 905.)

Where the evidence shows the defendant possessed the firearm before the primary offense, separate punishment for both crimes is proper. (Jones, supra, 103 Cal.App.4th at p.1143.) But if the evidence shows at most “ ‘fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing’ ” the primary offense, multiple punishment is improper. (Id. at p. 1144.)

Substantial evidence shows Lunar possessed the firearm before both crimes and with independent intent. As for count 2, Lunar necessarily possessed the firearm before he shot at Zamorano. He carried the gun when he arrived outside Lito’s Cork Room, thus completing his commission of possession of a firearm as a felon before he walked past Zamorano. “ ‘What the ex-felon does with the weapon later is another separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon.’ ” (Jones, supra, 103 Cal.App.4th at p. 1146.) After he encountered Zamorano by chance and Zamorano made a gang challenge, Lunar formed a separate intent to kill him. He committed two separate intentional acts: arming himself with the firearm, and shooting at and killing Zamorano. And the evidence supports a conclusion Lunar continued to possess the gun until, two days later, he used it to shoot at Rodriguez. (See People v. Garfield (1979) 92 Cal.App.3d 475, 478 [possession of a stolen firearm “a clearly distinct offense” severable from burglary when defendant still possessed stolen firearm six days later].)

The same analysis applies to count 5. Lunar had possession of the gun he used two days earlier to kill Zamorano as he biked toward Rodriguez’s car. He twice issued a gang challenge before he shot at the uncomprehending Rodriguez. “[His] violation of section 12021 was complete the instant [he] had the firearm within his control prior to the shooting.” (Jones, supra, 103 Cal.App.4th at p. 1147.) Substantial evidence shows two separate intents: first, to possess the gun, and, second, to shoot it at Rodriguez. (Ibid.)

7. Dueñas does not require remand for a hearing

Lunar argues he was entitled to a hearing on his ability to pay the $10,000 restitution fine (§ 1202.4) and, on each count, a $30 court facilities assessment (Gov. Code, § 70373) and a $40 court operations assessment (§ 1465.8). People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) held such fines and assessments may not constitutionally be imposed absent evidence of the defendant’s ability to pay. He made no objection in the trial court.

Lunar admits that the court sentenced him “well after” Dueñas was decided. Lunar therefore had the opportunity to raise any objection under that case. He failed to cite Dueñas or argue his inability to pay, and so he forfeited the issue. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155.)

We reject Lunar’s argument that counsel’s failure to raise a Dueñas objection was ineffective assistance, because he has not shown a reasonable probability of prejudice. As for the $10,000 restitution fine, because it was in excess of the minimum, the statute itself provides that a court may consider a defendant’s inability to pay. (§ 1202.4, subd. (d).) The failure to object on the statutory basis to a restitution fine in excess of the minimum forfeited any challenge based on his inability to pay. (People v. Avila (2009) 46 Cal.4th 680, 729.) As for the $40 per count operations assessment and $30 per count operations assessment, Lunar has not shown he was indigent. The probation report gives his financial status as unknown, with no major assets or liabilities, and he worked through a temp agency as a warehouse worker and in other jobs before his incarceration. He hired private counsel to file a motion for new trial. He has not shown counsel had no tactical reason not to object to the assessments, or that he had a reasonable possibility of prevailing had counsel raised a Dueñas challenge that he was indigent and unable to pay the assessments.

DISPOSITION

Defendant’s convictions are affirmed. The judgment is modified to delete the 10-year gang enhancements imposed on counts 1 and 3 under Penal Code section 186.22, subdivision (b)(1)(C) and to replace them with the 15-year minimum term for parole eligibility required by Penal Code section 186.22, subdivision (b)(5). The sentence on count 4 is vacated and replaced with a sentence of 15 years to life in state prison for the discharge of a firearm at an occupied vehicle (Pen. Code, § 246) committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(4)(B)), and an additional 20 years for the enhancement under Penal Code section 12022.53, subdivision (c), with the sentence stayed under section 654. In all other respects, the judgment is affirmed.

The trial court shall issue an amended abstract of judgment as set forth above, and shall send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

^[1] During trial, the court declared a mistrial as to Garcia and proceeded against Lunar only.

^[2] All the statutory references that follow are to the Penal Code unless otherwise noted.

^[3] A detective testified that when deputies viewed surveillance video of the shooting, one deputy easily identified Lunar’s companion as Garcia, whom he had contacted when he was in the gang unit. Garcia was in his 40’s, was a member of Stoners 13, and owned a white Toyota Sequoia SUV.