P. v. Collins

Filed 8/17/07 P. v. Collins CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

William N. Pounders, Judge. Affirmed.

Marcia C. Levine, 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, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant James Collins was convicted of one count of first degree murder in violation of Penal Code section 187,[1]one count of premeditated attempted murder in violation of sections 664 and 187 and one count of being a felon in possession of a handgun in violation of section 12021, subdivision (a)(1). The jury found true the allegations that appellant was a minor who was at least 14 years old when he committed the murder within the meaning of Welfare and Institutions Code section 707, subdivision (a), a principal personally and intentionally discharged a firearm causing death within the meaning of section 12022.53, subdivisions (b) through (e)(1), and appellant personally and intentionally discharged a firearm causing great bodily injury in the attempted murder within the meaning of section 12022.53, subdivisions (b) through (e)(1). The jury also found true the allegations that the murder and attempted murder were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). The trial court sentenced appellant to a term of 25 years to life for the murder conviction plus a 25 year to life enhancement term for the firearm use plus a consecutive life sentence for the attempted murder conviction plus a 25 year to life enhancement term for the firearm enhancement. The court imposed sentence on the firearm possession conviction concurrently.

Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his motion to sever trial or impanel a separate jury, and in admitting co-defendant Hamilton's extrajudicial statement and instructing the jury about that statement. Appellant further contends that the trial court erred in ordering him to pay a security fee and failing to stay the firearm possession sentence pursuant to section 654. We affirm the judgment of conviction.

Facts

In July 2000, a Swan Blood gang member, Clifton "Bossman" Adams, was shot and killed in Swan Blood territory. Fellow gang member Dominique Bowman was present. Other gang members became angry with Bowman after the shooting because they believed that he did not help Adams at the time of the shooting, and because Bowman did not retaliate for the shooting. Bowman became involved in a number of altercations with Swan Blood gang members. One of these altercations was with appellant, who was known as Kandyman. This fight was witnessed by many gang members and was perceived as a form of discipline within the gang.

About two weeks later, as Bowman drove to visit his sister, he noticed a blue Neon car following him. He continued to his sister's house. When he left, the car again followed him. Bowman recognized the driver of the car as "Woodee." He saw appellant in the front passenger seat. Appellant stretched his arm out the car window and fired at Bowman. Bowman had no doubt that appellant was the shooter. Bowman, who was shot 13 times, crashed his car into a wall.

Bowman was in a coma for three months and had 18 surgeries. At the time of trial, he was unable to walk, had blurry vision and bladder problems and only one lung, all due to the shooting.

The following year, on July 3, 2001, Shereece Rankin was shot and killed near Avalon and 78th Streets in Los Angeles. Charles Jordan told police that, before the shooting, he drove Rankin to his sister Paulette's house. Rankin was the girlfriend of Timothy "Sinister" Johnson, a Swan Bloods gang member. During the drive, appellant called Jordan and asked where Rankin was. Jordan replied that he was driving Rankin to his sister's house.

At Paulette's house, there was a dispute between the two women, and Rankin was pushed into a wading pool. She left. Soon thereafter, appellant arrived at Jordan's sister's house, looking for Rankin. Jordan told him that she had left and appellant drove away.

Jordan left soon after appellant. He saw appellant stop his car in front of a group of younger gang members and pick up Lomel "Footlong" Hamilton. At 78th and Avalon, Jordon saw Hamilton walking on Avalon, then heard gunshots. Jordan walked in the direction of the gunshots and saw Rankin lying on the sidewalk. She died from a gunshot wound to the head.

After the shooting, Hamilton went to the home of Darnell Wells. Appellant, Melvin Wince and others were present and there was talk of the shooting. Wells and Wince later told police that Hamilton told them that appellant picked him up and told him to kill Rankin. He did so, because appellant was his "big homie." Wince recognized the handgun in Hamilton's possession as appellant's handgun. Hamilton opened the gun and showed Wells expended shell casings. Wells told police that about a week later, he overheard appellant and Hamilton having a conversation. Appellant told Hamilton to get rid of the gun that killed Rankin. Wince also told police that appellant told him that the shooting was a "personal" thing between appellant and Rankin's boyfriend.

Demetrius Henson told police that Hamilton told him that Hamilton shot Rankin at appellant's behest.

Police tape-recorded the statements of Wells, Wince and Henson, and these recordings were played at trial. Nevertheless, the three men recanted at trial, as did Jordan. The men gave varying explanations for their earlier statements.

Jordan acknowledged that he did not want to testify and claimed not to remember the events of July 3. He claimed that his memory was impaired due to his PCP addiction. He further claimed that some of his prior statements were lies.

Wells claimed that he made up the statements because he did not like appellant and Hamilton. Appellant had sometimes dated Wells's mother and for a time was like a father to Wells. Then Wells came to believe that appellant stole $25,000 from his mother, and that she was going to lose her house as a result. He was trying to get back at appellant. Wells also claimed that he made up the statements because he was accused of committing the murder and wanted to get out of it and because police promised him a house for his family and early release from probation camp.

Wince denied knowing anything about the murder. He claimed that he only repeated what police told him and did so because police offered to drop a narcotics case against him.

Henson claimed that he did not speak with Hamilton about the murder or have any personal knowledge of the murder and that he just said what the police officers wanted him to say.

Los Angeles Police Detective Michelle Esquivel testified that graffiti appeared near the scene of the Rankin murder within days of the murder. The graffiti referred to the Swan Bloods gang and Rankin.

The People offered evidence that Jordan, Wince, and Henson were Swan Blood gang members. Wells hung out with that gang. In July 2001, Hamilton was a new member of the gang.

Los Angeles Police Detective John Radtke testified about the organization and activities of the Swan Bloods gang. Payback and retaliation were expected in the gang culture. Gang culture also valued respect, which was equated with fear and power. Young gang members could get respect by committing crimes for the gang. Snitching against the gang was considered a serious affront and could result in the snitch's death.

In Detective Radtke's opinion, Hamilton could have been disciplined for failing to follow appellant's order to kill Rankin. Also in Detective Radtke's opinion, the Rankin killing and the Bowman attempted murder were committed for the benefit of the Swan Bloods gang.

Appellant offered a defense to the count 2 Bowman attempted murder only.

He offered the testimony of fellow gang member Tony Spriggs that he and appellant went to Portland, Oregon on July 23 to sell drugs, as they had done in the past. The men left Los Angeles between 10:00 p.m. and 12:30 a.m. Spriggs spent the entire day with appellant before the two men departed for Portland.

Appellant testified and acknowledged that he was in a fistfight with Bowman after the Adams murder. Nevertheless, he did not have a conflict with Bowman. Appellant also testified that at about 1:00 p.m. on July 23, 2000, he bought $15,000 worth of cocaine, then returned home to wrap the drugs for his upcoming trip to Portland. He stayed home all day guarding the drugs. He had no involvement in the Bowman shooting. Between 11:30 p.m. and midnight, he left Los Angeles for Portland with Spriggs.

It was stipulated that near the time of the Bowman shooting, three eyewitnesses told police that a possible suspect vehicle was a blue Mitsubishi Eclipse.

Discussion

1. Denial of motion to sever

Appellant contends that the trial court abused its discretion in denying his motion to sever the count 1 Rankin murder from counts 2 and 3, which involve the Bowman attempted murder.[2] He further contends that even if the trial court's ruling was correct when made, the joinder actually resulted in gross unfairness amounting to a denial of due process. We do not agree.

Section 954 provides that an accusatory pleading may charge two or more different offenses "of the same class of crimes or offenses." Murder and attempted murder are crimes of the same class, and thus joinder was proper under section 954. (People v. Jenkins (2000) 22 Cal.4th 900, 947.) "When the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish an abuse of discretion by the trial court." (People v. Marshall (1997) 15 Cal.4th 1, 27.) "We review the trial court's decision 'in light of the showings then made and the facts then known.' [Citation.]" (Ibid.)

The pertinent factors in assessing prejudice are: "(1) would the evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges unusually likely to inflame the jury against the defendant; [and] (3) has a weak case been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses." (People v. Marshall, supra, 15 Cal.4th at pp. 27-28.)

While cross-admissibility of evidence ordinarily dispels any inference of prejudice from joinder, the converse is not true. The absence of cross-admissibility is not sufficient to demonstrate prejudice. (People v. Sandoval (1992) 4 Cal.4th 155, 173.) Thus, even assuming for the sake of argument that the evidence on counts 1 and 2 was not cross-admissible, appellant must still demonstrate prejudice under the remaining factors. He has not done so.

Neither crime was particularly inflammatory in comparison to the other. One was a murder and the other an attempted murder which resulted in severe injuries to the victim. Both involved firearms and were committed for the benefit of a criminal street gang.

The evidence on both counts was about equal in strength. There was no physical evidence connecting appellant to either crime. In both crimes, the evidence against appellant consisted of statements by appellant's fellow gang members. There were comparable weaknesses in both counts. The witnesses to both crimes had motives to lie. In the murder count, the witnesses recanted. In the attempted murder count, appellant presented an alibi defense.

Appellant has failed to demonstrate prejudice under the factors listed in People v. Marshall, supra. He contends that the trial court should nevertheless have granted severance because he wanted to testify as to count 2, but not count 1. He argues that even if a jury was instructed that he had the right not to testify, the jury would make improper inferences about his failure to testify on count 1.

Appellant presented no California cases to the trial court holding that a defendant's desire to testify on only one of several counts is a factor to be considered in determining whether joinder is proper. Thus, we see no abuse of discretion in the trial court's decision that this situation did not require severance.

Although appellant has failed to demonstrate prejudice, and thus an abuse of discretion in the court's pretrial denial of his motion to sever, we independently review the record to determine whether gross unfairness actually resulted from the joinder.

The evidence produced at trial was as anticipated in the pretrial motion to sever and discussed above. We see nothing in that evidence which produced actual unfairness at trial.

Appellant contends that the evidence at trial did not support the prosecutor's pretrial assertion that he was motivated by the pursuit of gang respect and internal discipline in the Rankin murder because a number of prosecution witnesses described the murder as "personal" and the prosecutor acknowledged this. Appellant implies that this resulted in unfairness. We do not agree.

While the witnesses agreed that appellant ordered Rankin killed because of a "personal" dispute appellant had with Rankin's boyfriend, "personal" in this context simply meant that it was not because two sects of a gang were at war. ("[I]t wasn't an eight-nine, seven-nine thing, it was personal" between the two men.) The prosecutor argued that appellant did this to keep respect and send a message "in the hood" that "you don't mess with" him. The prosecutor pointed out that graffiti about the murder appeared a few days after the murder. Gang evidence was properly admitted on the murder count. Further, the jury found true the allegation that the Rankin murder was committed for the benefit of a criminal street gang, and appellant has not challenged that finding.

Appellant also contends that his trial testimony on the Rankin murder resulted in gross unfairness. He relies on People v. Smallwood (1986) 42 Cal.3d 415 to support his argument that prejudice can occur from joinder of two charges when the defendant

testifies as to only one of the charges.[3](Id. at p. 432.) The Court in Smallwood wrote: "The jury heard Smallwood present a defense to the Dunbar counts but not to the House counts. His willingness to testify as to one charge could not help but leave an unfavorable impression with regard to the other. [Citations.] '[A] defendant's silence on one count would be damaging in the face of his express denial of the other.' (Cross v. United States (D.C. Cir. 1964) 335 F.2d 987, 989.) In this respect too, joinder with the Dunbar counts must have prejudiced Smallwood's defense of the House counts." (Ibid.)

There is no discussion of the defendant's testimony in the opinion.[4] The Court relied on a federal case which finds prejudice to a defendant who wanted to testify on only one count, and did so on direct examination, but was subjected to cross-examination by the prosecutor on another count. (Cross v. U.S., supra, 335 F.2d at p. 989.) That was certainly not the case here. There was no examination or cross-examination of appellant about the Bowman shooting. Both during voir dire and closing instructions, the court made it clear to jurors that appellant had a right to testify or not testify, and that a negative inference should not be drawn from appellant's decision to testify on only one count. There is nothing to suggest that the jury was unable or unwilling to follow the court's instructions.

To the extent that appellant contends that the jury might have considered his testimony about his drug activities, given as part of his alibi for count 2, in deciding appellant's guilt on count 1, this is pure speculation. Further, appellant's testimony on this matter was not prejudicial in light of the properly admitted evidence that appellant was an active member of a violent street gang.

2. Extrajudicial statement

Appellant contends that the trial court erred in admitting out-of-court statements by co-defendant Hamilton which implicated appellant in the Rankin murder, and that these statements violated his federal constitutional rights to confrontation and cross-examination, due process and a fair trial. We see no error and no violation of appellant's rights.

Wince, Wells, and Henson told police that Hamilton admitted shooting Rankin, but claimed that he did so at appellant's behest. At trial, all three men contended that they lied to police and that they did not hear Hamilton make his admission. Wells claimed a variety of reasons for his lies. Wince and Henson claimed that they merely said what police told them to say. Appellant contends that the references to him were not against Hamilton's penal interest and were not reliable, and so did not meet the requirements of Evidence Code section 1230 for admission of a hearsay statement.

Under Evidence Code section 1230, a party may present evidence of an out-of-court statement if the statement was "specifically disserving" of the declarant's penal interest when made, the statement is sufficiently reliable to warrant admission and the declarant is unavailable. (People v. Duarte (2000) 24 Cal.4th 603, 610-612.) If part of the statement is exculpatory, self-serving, or collateral, that part is not admissible under section 1230. (Id. at pp. 611-612; see People v. Samuels (2005) 36 Cal.4th 96, 120-121.) We review a trial court's determination on this issue under the deferential abuse of discretion standard. (People v. Brown (2003) 31 Cal.4th 518, 536.)

To determine whether a particular declaration against penal interest passes the required threshold of trustworthiness, "a trial court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant. [Citation.] We have recognized that, in this context, assessing trustworthiness requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception. [Citation.]" (People v. Duarte, supra, 24 Cal.4th at p. 614 internal quotation marks and citations omitted.) Generally, the least reliable circumstance is when the declarant has been arrested and makes his statement to police in an attempt to improve his situation. The most reliable situation is one in which the conversation occurs between friends in a non-coercive setting. (People v. Greenberger (1997) 58 Cal.App.4th 298, 335.)

We see no abuse of discretion in the trial court's finding that Hamilton's statements were against penal interest. Hamilton's statements were specifically disserving. Hamilton acknowledged that he was the shooter. By stating that he had discussed the murder beforehand with appellant, Hamilton admitted that he was part of a conspiracy to commit murder, indicating that the murder was premeditated. Our Supreme Court has found a similar statement to be against penal interest. (People v. Samuels, supra, 36 Cal.4th at pp. 120-121.) In Samuels, the hearsay declarant stated that he had killed the victim with the help of another person and that the defendant had paid him. The Court found that the part of the statement about being paid for the killing showed that the declarant was part of a conspiracy to commit murder and so was a specific statement against penal interest. (Id. at p. 121.) In addition, Hamilton's conversation with appellant also showed that the murder was gang-related, which subjected Hamilton to increased punishment for the crime.

Appellant contends that Samuels has little reasoning or discussion about the applicable law, and should be disregarded in favor of an earlier case, People v. Lawley (2002) 27 Cal.4th 102. Appellant's reliance on Lawley is misplaced.

In Lawley, the Court found no abuse of discretion in the trial court's decision to exclude the declarant's statement that the Aryan Brotherhood paid him to commit the murder, stating that the identity of the entity which paid for the murder did not make the declarant more culpable for the murder. (Id. at pp. 153-154.) Several years later, the defendant in Samuels relied on Lawley in arguing error in the admission of the statement that the defendant paid for the murder. The Court in Samuels found Lawley to be distinguishable because the statement at issue in Lawley was collateral. (Samuels at pp. 120-121.)

The reason for the ruling in Samuels is clear upon an examination of the Lawley opinion. In Lawley, the declarant, who was accused along with defendant Lawley of murder, admitted that he shot the victim but stated that he was paid to do so by the Aryan Brotherhood. The declarant also stated that an innocent man (Lawley) was incarcerated for the crime. Thus, in context, the declarant's reference to the Aryan Brotherhood could only be understood as a deliberate attempt to exculpate Lawley. Thus, it was collateral to the declarant's inculpatory statements. There was no such attempt to exculpate a third party here.

We also see no abuse of discretion in the trial court's finding that the statements were trustworthy. The circumstances under which Hamilton made his statement show reliability. Hamilton made his statements to the son of appellant's girlfriend and to two men who were in related Swan gangs.[5] His first statement, to Wells and Wince, was made very shortly after the shooting. Hamilton clearly did not have much time to reflect on this statement. If Hamilton did reflect, he would have realized that, given the connections between his listeners and appellant, it was quite likely that appellant would learn of the statement.

Appellant contends that even if the statement is reliable under California law, it does not meet federal constitutional standards for reliability and so violated his right to confrontation. We do not agree.

The United States Supreme Court has determined that the Confrontation Clause allows the admission of an unavailable declarant's hearsay statement if the statement falls within a firmly rooted hearsay exception or if it possesses particularized guarantees of trustworthiness. (Idaho v. Wright (1990) 497 U.S. 805, 814-815.) As appellant correctly points out, the exception for a declaration against penal interest which is made while the declarant is in custody is not a firmly rooted hearsay exception and is presumptively unreliable. (Lilly v. Virginia (1999) 527 U.S. 116, 126-127.) Such a statement may nevertheless be admitted at trial if the proponent of the statement demonstrates that the statement has particularized guarantees of trustworthiness. (Id. at pp. 143-149; see also White v. Illinois (1992) 502 U.S. 346, 356; Idaho v. Wright, supra, 497 U.S. at pp. 814-823.)

"[T]he 'particularized guarantees of trustworthiness' required for admission under the Confrontation Clause must . . . be drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief." (Idaho v. Wright, supra, 527 U.S. at p. 820.) The "unifying principle is that these factors relate to whether the . . . declarant was particularly likely to be telling the truth when the statement was made." (Id. at p. 822 [emphasis added].)[6]

We have independently reviewed the evidence and find sufficient guarantees of trustworthiness. Hamilton was not in custody when he made the statements. As we discuss above, Hamilton made his first statement shortly after the shooting, when he had had little, if any, opportunity to reflect. This is a circumstance showing trustworthiness. He made the statement to a gang associate and another young man whom he knew fairly well, another circumstance showing reliability. Hamilton knew that one of the men, Wells, knew appellant fairly well. Hamilton made the statement at the home of appellant's girlfriend. Thus, if Hamilton did have time to reflect on the statement, he would know that it would likely come to appellant's attention. Given appellant's status in the Swans gang, there could certainly be consequences to a false accusation against appellant. Appellant has not identified any motive for Hamilton to lie to Wells and Wince, and we see none. Given the attitude in gang culture toward "snitches," there was certainly no reason for Hamilton to believe that his statements to gang associates would be repeated to police.

3. CALJIC No. 2.71.7

Appellant contends that the trial court erred in failing to instruct the jury sua sponte with CALJIC No. 2.71.7. He contends that the trial court's error lightened the prosecution's burden of proof and violated his federal constitutional rights to due process and a fair trial. We agree that the trial court erred, but find the error harmless.

CALJIC No. 2.71.7 provides: "Evidence has been received from which you may find that an oral statement of [intent] [plan] [motive] [design] was made by the defendant before the offense with which [he] [she] is charged was committed. [] It is for you to decide whether the statement was made by [a] [the] defendant. [] Evidence of an oral statement ought to be viewed with caution."

A trial court has a sua sponte duty to instruct the jury with CALJIC No. 2.71.7 when there is evidence that a defendant made a pre-offense oral admission. (People v. Williams (1988) 45 Cal.3d 1268, 1315; People v. Beagle (1972) 6 Cal.3d 441, 455.) There was such evidence here, and so the trial court erred in omitting the instruction.

The trial court did instruct the jury with CALJIC No. 2.70, however. That instruction first defines confessions, then states: "An admission is a statement made by a defendant which does not by itself acknowledge his guilt of the crime for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence. [] You are the exclusive judges as to whether the defendant made a confession or admission, and if so, whether that statement is true in whole or in part. [] Evidence of an oral confession or oral admission of the defendant not made in court should be viewed with caution."

Appellant contends that the average juror would not understand that instruction to include pre-offense statements by a defendant. We do not agree.

It is well settled that the omission of CALJIC No. 2.71.7 is harmless when the trial court instructs the jury with CALJIC No. 2.71 concerning admissions generally. (See, e.g., People v. Lang (1989) 49 Cal.3d 991, 1021; People v. Kozel (1982) 133 Cal.App.3d 507, 530.) CALJIC No. 2.71 applies to any statement made by a defendant "which . . . tends to prove his guilt when considered with the rest of the evidence." There is no time limitation on when those statements are made.

CALJIC No. 2.70 contains the language of CALJIC No. 2.71, plus the definition of a confession. Under the reasoning of the cases finding CALJIC No. 2.71 adequate to cure the omission of CALJIC No. 2.71.7, CALJIC No. 2.70 must also be found adequate.

Appellant contends that People v. Lang and People v. Kozel, supra, are distinguishable because the preoffense statement in Lang was merely cumulative and the preoffense statements in Kozel were admitted by the defendant in court, while in his case the preoffense statements were the heart of the People's case and were not admitted by him during trial.

The issue in assessing prejudice is whether there is a reasonable likelihood that the jury misunderstood the applicable law concerning appellant's preoffense statement based on the language of CALJIC No. 2.70. (People v. Prettyman (1996) 14 Cal.4th 248, 272.) While the facts of Lang and Kozel may be different from the present case, the courts' assessments of CALJIC No. 2.71 are not dependent on those facts. The Court in Lang specifically describes CALJIC No. 2.71 as a "broad cautionary instruction [which] encompassed evidence of preoffense statements." (People v. Lang, supra, 49 Cal.3d at p. 1021.) The Court in Kozel similarly stated that CALJIC No. 2.71 "alerted the jury to the necessity to use caution in evaluating the two potentially damaging preoffense statements offered by the People." (People v. Kozel, supra, 133 Cal.App.3d at p. 530.)

Because we find that CALJIC No. 2.70 adequately instructed the jury to view appellant's preoffense statement with caution and to determine whether the statement was actually made, we see no violation of appellant's federal constitutional rights.

4. Section 654

Appellant contends that the trial court erred in failing to stay the count 3 conviction for possession of a firearm pursuant to section 654. We do not agree.

Section 654[7]precludes multiple punishments for a single act or indivisible course of conduct. (People v. Miller (1977) 18 Cal.3d 873, 885.) Whether a course of conduct fits within the 654 proscription depends upon the intent and objectives of the actor; if all the acts are incident to one criminal objective, the defendant may not be separately punished for each act. (People v. Bauer (1969) 1 Cal.3d 368, 376.) Whether section 654 applies in a given case is a question of fact for the trial court. (People v. Coleman (1989) 48 Cal.3d 112, 162.)

"Whether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms . . . constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense." (People v. Bradford (1976) 17 Cal.3d 8, 22.)

Here, the trial court stated: "I'm not even sure that 654 would not block any assessment on that, but even if it doesn't, it seems to me that it's the method by which count 2 was accomplished . . . ." Although the trial court expressed some uncertainty about the applicability of section 654, the trial court did not stay the sentence pursuant to that section. The trial court offered no factual basis for its decision, that is, the court did not state whether it had found that appellant harbored separate intents for each crime, or possessed the firearm separately from the attempted murder. The fact that the court noted that the firearm was used in the attempted murder says nothing about appellant's purpose or timing in possessing the firearm.

When a trial court imposes concurrent sentences, does not stay one of the sentences pursuant to section 654, and offers no factual basis for its decision, we presume the court found that the defendant harbored a separate intent and objective for each offense, and our review is limited to whether substantial evidence in the record supports the trial court's implied finding. (People v. Jones (2002) 103 Cal.App.4th 1139, 1147.)

Here, there is ample evidence to support an inference that appellant possessed the firearm well prior to the attempted murder and for some other purpose. Bowman first noticed the blue Neon carrying appellant while Bowman was driving to his sister's house in an area outside the Swan Bloods' territory. It is reasonable to infer that the encounter was a chance one, and that appellant took advantage of the encounter. Thus, his possession of the gun would have been antecedent to and independent of the attempted murder. (People v. Jones, supra, 103 Cal.App.4th at p. 1143.)

5. Security fine

Appellant contends that the trial court erred in imposing a security fee of $20 pursuant to section 1465.8, subdivision (a)(1) because the charged offenses occurred before the enactment of section 1465.8.

We recognize that this issue is pending before the California Supreme Court in People v. Carmichael (S141415) and People v. Alford (S142508). Review was granted in both cases on May 10, 2006.

We earlier rejected a virtually identical claim in People v. Wallace (2004) 120 Cal.App.4th 867. Appellant has offered no reason for us to reconsider that holding.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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

[2] Appellant acknowledges that the count 3 offense, possession of a firearm by a felon, was intertwined with the count 2 attempted murder charge. The evidence on the two counts was clearly cross-admissible and appellant does not argue that count 3 should have been severed from count 2. Accordingly, we do not discuss count 3 any further.

[3] Our Supreme Court has clarified the holding of Smallwood as follows: "Misleading language in People v. Smallwood (1986) 42 Cal.3d 415, 429, [228 Cal.Rptr. 913, 722 P.2d 197,] implies that because prejudice is always presumed when offenses are joined and the evidence is not cross-admissible, the People must establish that the noncross-admissible evidence cannot reasonably affect the verdicts. As this court recognized in Williams v. Superior Court, supra, 36 Cal.3d 441, 452, [204 Cal.Rptr. 700, 683 P.2d 699,] and has since reaffirmed in Ruiz and Balderas, when the question is not admission of evidence of an uncharged offense, but whether severance of charged offenses should be ordered, the defendant carries the burden of clearly showing potential prejudice. No abuse of discretion in denying severance will be found absent that showing in the trial court." (People v. Bean (1988) 46 Cal.3d 919, 939, fn. 8.)

[4] In the facts portion of the opinion, the Court states only that Smallwood presented the testimony of his mother that he was at home at the time of the Dunbar murder and evidence regarding the investigation of two brothers in connection with the Dunbar murder. (People v. Smallwood, supra, 42 Cal.3d at pp. 421-422.)

[5] Before the shooting, Hamilton used to visit Wells's house. Wells's mother was involved with appellant. Wince was friends with Wells and was at the Wells house after the shooting. Wince was a member of the Eight-Nine Family Swan Bloods. Henson was in the Seven-Nine Swans gang.

[6] Thus, to the extent that appellant contends that the prosecutor was required to show that Hamilton was a person who was unlikely to lie, appellant is mistaken. The prosecution must show that any person would be unlikely to lie under the circumstances surrounding the making of the statement.

[7] Section 654 provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."