P. v. Garcia

Filed 3/20/07 P. v. Garcia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Charles L. Peven, Judge. Affirmed in part and reversed in part.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant, Moises Garcia, appeals from the judgment entered following his conviction, by jury trial, for premeditated attempted murder, attempted murder, and discharging a firearm at an occupied vehicle, with firearm use and gang enhancements (Pen. Code,  664/187, 246, 12022.53, 186.22).^[1] Sentenced to state prison for 72 years to life, Garcia claims there was trial and sentencing error.

The judgment is affirmed in part and reversed in part.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following:    

1. Prosecution evidence.

On Saturday, June 5, 2004,^[2]at about 7:30 a.m., D.V. was getting ready to drive his sister K.V. to Sylmar High School for her SAT test. D.V.s car was parked in a lot at the apartment complex in Pacoima where they lived. K.V. had gone ahead of him in order to warm up the car. As D.V. walked into the parking lot, he saw a green Honda Civic drive past his parked car. The Honda made a U-turn, came back and stopped directly in front of his car, which had been backed into its parking space. D.V. testified defendant Garcia was driving the Honda with three male passengers, one in the front and two in the back. The rear windows of the Honda were tinted, and the passenger-side windows were rolled down.

One of the Honda occupants asked D.V. where he was from, which was a way of asking for his gang affiliation. D.V replied he did not belong to a gang. Then he got into the drivers seat of his car and closed the door. Someone in the Honda said, Fuck you, this is Pacoima. The front seat passenger pulled out a gun and fired one shot. D.V. grabbed his sister and pushed her down in case more shots were coming. The gunman was about six feet away when he fired.

There were no more shots and the Honda drove off. D.V. called 911 and then followed the Honda. At one point during the ensuing chase, the rear seat passengers poked their heads out the Hondas windows and fired more shots at D.V.s car.^[3]As they were driving, K.V. wrote down the Hondas license plate number. D.V. flagged down a patrol car and K.V. gave the license number to Officer Kellie Ellwood.

K.V. testified that while she was warming up the car that morning, she saw a green Honda on the driveway of the parking lot complex. And . . . they just turned around . . . when they saw my brother. The Honda stopped perpendicular to D.V.s car, blocking it from leaving its parking space. K.V. testified there were four men in the Honda and that Garcia was the one driving. The front seat passenger asked her brother for his gang affiliation and then several voices said Fuck Pierce Boys and This is Project Boys. K.V. testified these comments were directed at her brother, but when they noticed that I was also in the car, they said, this is [Project Boys], fucking bitch. . . . Then the passenger in the front seat pulled out his gun and shot at [D.V.s] car. The gunman had been pointing the gun at K.V., who was directly in front of him. When the gun went off, her brother pushed her head down. When she sat up again, K.V. saw the Honda drive away.

D.V. testified he had never been in a gang, but he knew the Pacoima Pierce Boys gang hung out at the apartment complex where he and his sister lived. K.V. testified it was well known the Project Boys and the Pierce Boys were enemies

At the police station later that day, the victims were shown six-pack photo arrays. D.V. identified Garcia as one of the perpetrators. K.V. identified Ari E., who was prosecuted as Garcias codefendant, as the gunman. K.V. testified she failed to pick out Garcias photo because all I could picture was the shooters face because he was the one who actually put me in shock. All I could see was his face and everybody else was blanked.

The day after the shooting, D.V. and K.V. returned to the police station. The green Honda Civic was there, but the window tinting was gone. K.V. testified he saw scratch marks on the windows which, he knew from experience, indicated the tint had been removed. Officer Ellwood testified she could see razor markings on the rear window of the Honda, indicating something had obviously been removed from the windows, and that there were pieces of tint on the floor of the car.

On November 16, the victims were shown two live lineups at Los Angeles County Mens Central Jail. Although Garcia was in the first lineup, both D.V. and K.V. identified someone else (but not Ari E.) as the driver. In the second lineup, K.V. identified someone (again not Ari E.) as the initial gunman.

At the preliminary hearing on January 3, 2005, D.V. and K.V. each identified Garcia as the Honda driver and Ari E. as the front seat passenger who shot at D.V.s car in the parking lot. They made the same identifications at trial.

The prosecution called Josephin O. who testified that, at the time of the shooting, she was living with Garcia in Palmdale. Josephin knew Garcia had been in the Pacoima Project Boys gang some eight or ten years earlier. She was sure he no longer hung around with gang members. On the day of the shooting, she drove Garcias Honda to the dentist and then to her sisters house in Reseda, where she spent the night. There was only one set of keys for the Honda. Garcias brother Jorge called Josephin at her sisters the next day and told her the police wanted to examine the Honda because it had been involved in a crime. Josephin took the car to the police station about two hours later. She denied having seen or called Garcia before she dropped the car off. Josephin testified she told police Garcia had removed the window tinting from the Honda a few days earlier. She did not recall having told a defense investigator the tinting had been removed a month before the shooting and that she didnt know who had done it.

a. Prosecution gang expert.

Officer Rodolfo Rodriguez, the prosecutions gang expert, testified the Pacoima Project Boys were a Hispanic gang of about 310 members whose base of operations was the San Fernando Gardens apartment complex and a nearby park. The gangs primary activities included murder, drive-by shootings, assaults with deadly weapons, witness intimidation and drug sales. Rivals of the Pacoima Project Boys included the Pierce Street Boys gang, whose base of operations was the apartment complex where D.V. and K.V. lived.

Rodriguez testified that at the time of the shooting, Garcia was an active member of the Pacoima Project Boys. He based this opinion on a history of police contacts during which Garcia admitted his membership in the gang. Although there were no recorded police contacts between January 2002, and June 2004, Garcia had left the San Fernando Gardens apartment complex and moved to Palmdale.

Responding to a hypothetical question based on the facts of this case, Rodriguez opined the shooting had been carried out for the benefit of the Project Boys gang: My opinion is based on the Project Boys going into a rival neighborhood. [The victims lived in] a rival neighborhood claimed by the Pacoima Pierce Street and Van Nuys Boys. For those persons to go into that area and say what they said, This is Project Boys, . . . they are going in there for one reason, one reason only. Thats to attempt to take out a rival gang member by shooting at them and killing them. [] Its an open act of disrespect to go into a rival gangs neighborhood, just to go in there if you are a rival neighborhood you are a rival gang. On top of that you are going in there and youre claiming the rival gangs name. In furtherance you are going in there . . . claiming the name and your [sic] shooting at somebody. The purpose of that is to . . . instill fear within the victims gang, within the residents . . . in the area, to gain respect within [sic] the fellow gang members that are in your car. [] If youre in there and you shoot, what that does to you is that it elevates your status within the gang. . . .  The purpose [of claiming Project Boys] is to instill fear into the person and in case they dont get killed, in case they get to tell somebody else who it was that shot at them.

2. Defense evidence.

Garcias brother Jorge lived in Palmdale. On June 4, Garcia asked Jorge to drive him to their brother Abrahams house in Panorama City. Jorge dropped Garcia off at Abrahams about 6:00 p.m. On the morning of June 5, Jorge spoke to a police officer who said Garcias car had been involved in a crime and the police wanted to examine it. Jorge called Josephin and told her the police wanted to check the car.

V.E. testified he was Garcias friend. On the evening of June 4, 2004, Garcia came over to V.E.s house in Panorama City for a barbecue. Afterwards, they went to a neighbors house for a party and stayed until 2:00 a.m.

Garcias brother Abraham testified Garcia and Jorge showed up at his house at 6:00 p.m. on June 4. A few hours later, Garcia went around the corner to V.E.s house. About 2:30 a.m. the next morning, Garcia called Abraham to ask if he could spend the night and Abraham agreed. Garcia was very drunk when he came in and he fell asleep on the sofa. Later that morning, Abraham was awakened by his youngest child, a baby. When he went to the kitchen to heat up baby formula in the microwave, he noticed Garcia was still asleep on the sofa. According to the clock on the microwave, this was at 7:35 a.m., the same time as the shooting.

Abrahams wife testified that when she awoke on the morning of June 5, between 8:00 and 9:00 a.m., she saw Garcia sleeping on her sofa. She testified Garcia used to spend the night at her house about twice a month.

3. Proceedings at trial.

Garcia was prosecuted for his part in two shootings: the initial shooting in the parking lot, and the subsequent shooting on the street when D.V. was following the Honda. The jury found Garcia guilty for the parking lot shooting, but acquitted him for the street shooting. For the parking lot shooting, the jury determined the attempted murder of K.V. had been premeditated, but that the attempted murder of D.V. had not been premeditated.

CONTENTIONS

1. There was insufficient evidence to sustain the attempted murder convictions.

2. The firearm use findings must be reversed because the evidence showed the weapon was merely a BB gun.

3. The trial court improperly imposed multiple firearm use enhancements.

4. The trial court improperly imposed gang enhancements in addition to the firearm use enhancements.

DISCUSSION

1. Sufficient evidence supported the attempted murder convictions.

Garcia contends there was insufficient evidence to sustain his convictions for attempted murder. He argues there was insufficient evidence to convict him for attempted murder of D.V. (count 1), let alone the premeditated attempted murder of K.V. (count 2). That is, he argues that [n]either premeditation nor express malice aforethought was shown in this case. This claim is meritless.

In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence that is, evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.]  Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendants guilt beyond a reasonable doubt.  If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.  [Citations.]  [Citation.] (Peoplev.12Rodriguez (1999) 20 Cal.4th 1, 11.)

Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.] (People v. Jones (1990) 51 Cal.3d 294, 314.)

Garcias attempted murder convictions were based on an aiding and abetting theory. A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) Although neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission, [a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense. [Citation.] (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)

People v. Anderson (1968) 70 Cal.2d 15, 26-27, a murder case,^[4]discusses the following types of premeditation and deliberation evidence: (1) planning activity prior to the killing; (2) motive to kill; and (3) a manner of killing indicating some preconceived design to kill in a certain way. The Anderson factors do not establish normative rules, but instead provide guidelines for a reviewing courts analysis. (People v. Sanchez (1995) 12 Cal.4th 1, 32.) Thus, the Andersonfactors are not a sine qua non to finding deliberation and premeditation, nor are they exclusive. (Ibid; People v.Davis (1995) 10 Cal.4th 463, 511 [Anderson factors are descriptive, not normative]; People v. Raley (1992) 2 Cal.4th 870, 886 [when evidence of all three Anderson factors is not present, appellate courts look for either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing].)

In this case, there was substantial motive evidence. The gang expert testified the location of the shooting was a rival gangs base of operations, and that it did not matter if these particular victims were actually associated with the rival gang. The expert explained that for Garcias carload of gang members to drive into the very heart of a rival gangs territory, yell out the name of their gang and then shoot at local residents was a purposeful act of gang aggression done both to elevate their own status within the gang and to intimidate their rivals by killing the victims. (See, e.g., People v. Villegas (2001) 92 Cal.App.4th 1217, 1224 [that rival gangs had ongoing feud constituted motive evidence]; People v. Francisco (1994) 22 Cal.App.4th 1180, 1192 [evidence that rival gangs were enemies and that drive-by retaliation shootings were a high form of honor among gangs showed motive].)

The act of driving a carload of armed gang members into a rival gangs territory constituted evidence of planning. As Garcia concedes, there was also evidence of planning because of the way he positioned the Honda so as to block D.V.s car and enable the gunman to have a clear shot at the helpless victims.

The manner in which the shooting occurred also tended to show these were attempted murders. The act of firing toward a victim from close range in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill. . . .  [Citations.]  The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooters poor marksmanship necessarily establish a less culpable state of mind. [Citation.] [Citation.] (People v. Smith (2005) 37 Cal.4th 733, 741.) Hence, the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. (Id. at p. 742.)

In addition to this motive, planning and manner of assault evidence, there was substantial consciousness of guilt evidence. There was evidence Garcia had the Hondas tinting removed in order to conceal evidence of his role in the shootings. There was also evidence Garcia arranged for family members to provide him with a false alibi. (See People v. Vu (2006) 143 Cal.App.4th 1009, 1029 [evidence defendant used false alibi relevant to prove consciousness of guilt].)

We disagree with Garcias assertion Smith does not support the attempted murder convictions here. Smith found sufficient evidence of express malice to support two attempted murder convictions where the defendant fired a single shot at two people sitting in a car, a woman and her baby who was in a car seat directly behind her. In reaching this conclusion, Smith applied the reasoning of People v. Chinchilla (1997) 52 Cal.App.4th 683, which affirmed two attempted murder convictions where the defendant fired a single shot at two police officers, one of whom was crouched down in front of the other.

Chinchilla reasoned as follows: At oral argument, defense appellate counsel conceded that one shot could support a conviction on two counts of attempted murder if there was evidence that the shooter saw both victims. Counsel maintained, however, that there was no such evidence in the case at bar. We disagree. From Silofaus testimony that she was crouched behind but above Meisels, it is reasonable to infer that she was visible to defendant, who was close enough that both officers could see the muzzle flash when he fired at them. [] Like the People, we have been unable to find a California case which holds that the firing of a single bullet in the direction of two people is sufficient to support convictions on two counts of attempted murder. We have, however, reviewed the out-of-state authorities cited by the People. We find the reasoning of those cases persuasive and adopt that reasoning here. Where a defendant fires at two officers, one of whom is crouched in front of the other, the defendant endangers the lives of both officers and a reasonable jury could infer from this that the defendant intended to kill both. (People v. Chinchilla, supra, 52 Cal.App.4th at pp. 690-691. fn. omitted, italics added.)^[5]

Garcias accomplice shot at the two victims from six feet away while they were sitting next to each other in the front seat of a car. The evidence showed the Honda occupants had directed their hostility toward both victims. Although the gunman was apparently aiming at K.V. when he fired, that single shot could have hit both victims by means of a deflection or a ricochet. The gunman endangered both their lives and a reasonable jury could have inferred he intended to kill them both. A reasonable jury could have also inferred Garcia intended to facilitate this murderous assault.

Viewing the record in the light most favorable to the conviction obtained by the prosecution below, we conclude there was sufficient motive, planning, manner of attack, and consciousness of guilt evidence for a rational trier of fact to have found premeditation and deliberation. Hence, there was sufficient evidence to sustain Garcias convictions for attempted murder and premeditated attempted murder.

2. Jurys firearm findings need not be reversed.

Garcia contends his conviction for discharging a firearm at an occupied vehicle, as well as the firearm use enhancements imposed in connection with the attempted murder convictions, must be reversed because of (a) insufficient evidence, (b) instructional error and/or (c) ineffective assistance of counsel. This claim is meritless.

CALJIC No. 17.19.5, explaining the enhancement for discharging a firearm during the commission of a crime, sets out alternative bracketed language to define firearm: The word firearm includes [a _____.] [any device designed to be used as a weapon from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.] The trial court here chose the first bracketed alternative and told the jury: The word firearm includes a handgun.

Garcia argues the evidence showed D.V. thought the weapon was only a BB gun and, therefore, the trial court had a sua sponte obligation to give the second bracketed alternative. Garcia also argues defense counsel was ineffective for not having asked for such an instruction and for not arguing a BB gun theory to the jury, and that there was insufficient evidence to sustain the jurys finding a firearm had been used in the parking lot shooting. We disagree.

Garcia correctly points out that case law has distinguished between a firearm and a pellet or BB gun. [B]ecause a pellet gun uses compressed air rather than an explosive to project a bullet, it is not a firearm as that word is commonly defined. [Citation.] (In re Jose A. (1992) 5 Cal.App.4th 697, 700-701, fn. omitted.) Compressed air or CO₂ guns may fire small round pellets, also known as BBs, or larger-diameter pellets [citation]. (People v. Lochtefeld (2000) 77 Cal.App.4th 533, 535.)

Nevertheless, a witnesss testimony generally need not exclude the possibility the weapon was a BB gun before the jury can find it was a firearm. (See People v. Aranda (1965) 63 Cal.2d 518, 532, abrogated by statute on another ground as noted in People v. Fletcher (1996) 13 Cal.4th 451, 465 [When the weapon involved is a gun, the prosecution need not produce it. Testimony by witnesses who state that they saw what looked like a gun, even if they cannot identify the type or caliber will suffice.]; People v. Mack (1959) 171 Cal.App.2d 631, 632 [sufficient evidence appellant had committed armed robbery where, although victim testified that she could not describe the shape or color of the gun [handle] that she saw protruding from appellants waistband and did not know anything about guns anyway her testimony was positive that it was a gun that she saw.]; People v. Billingsley (1958) 161 Cal.App.2d 247, 250-251 [evidence witness saw two inches of blue steel barrel, which he took to be a gun, was sufficient evidence defendant had used a firearm]; see also People v. Escobar (1992) 11 Cal.App.4th 502, 504 [assault with a firearm proved where victim did not see anything, but heard a clicking noise which sounded like a gun being cocked].)

Garcia essentially argues this general rule does not apply here because D.V. volunteered that he thought the single shot bouncing off the hood [of his car] . . . was not from a firearm as such, but from a BB gun. He asserts D.V. testified that, although the weapon looked like a revolver, the shot it fired sounded like a shot from a BB gun or pellet gun.

We disagree. Contrary to Garcias characterization of the record, we believe the clear import of D.V.s testimony was that, although he momentarily thought the weapon might be a BB or pellet gun, he ultimately concluded the weapon had been a firearm.

In his initial description of the shooting, D.V. testified, [T]he guy in the passenger side pulled out a gun, what appeared to me to be a revolver, and fired one shot. Asked on cross-examination why he thought it was a revolver, D.V. replied: Because when . . . he pointed the gun, it looked like what appeared to be a cylinder. This testimony, by itself, was sufficient to prove the weapon was a firearm, and D.V. never retracted this testimony.

Garcia focuses on D.V.s subsequent testimony that the sound of the weapons projectile hitting his car hood seemed like it could have been a BB or pellet gun, and on evidence the projectile apparently caused little damage to the car. Garcia asserts [T]he only person with an opinion on the matter thought at least the first shot was fired from a BB gun or a pellet gun . . . . But not only was D.V. not the only person with an opinion on the matter, he himself did not believe the shot had come from a BB gun.

As noted, D.V. initially described the weapon as a revolver and explained he reached that conclusion because he could see the guns cylinder. Asked if he had heard anything strike his car, D.V. responded: I heard something, what it sounded to me [sic] a small noise, similar to like a pellet gun or a BB gun. It wasnt anything to catch my attention to. The following colloquy then occurred:

Q   Did you notice whether or not the bullet from the gun hit your car?

A   I didnt notice at that point.

Q   At some point later did you notice?

A   I did after . . . I pulled over with the police.

Q   What did you notice?

A   I noticed there was a hole on the upper passenger side of the hood. It wasnt it was indented. And it didnt puncture a hole in it through.

Asked to view a photograph of his car hood, D.V. testified it showed this bullet mark that was left on my vehicle.

On cross-examination, D.V. testified:

A   The shot wasnt loud. And it wasnt didnt pierce I mean I didnt see the damage until I got outside the car, so I thought that it may have been a BB gun or something, a low powered pistol.

Q   Did you ever tell the police you thought it might be a BB gun?

A   Not when I saw the hole in my car.

Q   Well, did you ever tell the police that you thought it might be a BB gun?

A   No.

The evidence shows that when D.V. got a chance to look at the damage done to his car, he told Officer Ellwood that someone in the Honda had pointed a revolver . . . at his vehicle and fired one shot.^[6]

We believe the fairest summary of D.V.s testimony is as follows: He initially believed the weapon was a firearm because it looked like a revolver and he could see the cylinder. Then it occurred to him it might be a BB gun because the sound of the weapons projectile hitting his car had not been very loud. But later on, after having seen the dent in his car, he concluded the weapon had been a revolver, i.e., a firearm.^[7]

Moreover, D.V. was not the only witness who expressed an opinion on this matter. His sister consistently described the weapon as a gun and testified she heard a gunshot. K.V. testified the front seat passenger pulled out his gun and shot at [D.V.s] car. Shown the photograph of the dent in the hood, K.V. testified the mark that you see on there is . . . the gunshot. K.V. testified that, during the chase, one of the Hondas rear seat passengers shot at us again, that she saw the gun and could hear the gunshots. (Italics added.)

Hence, there was more than sufficient evidence to prove the weapon had been a firearm. There was no substantial evidence the weapon had been only a BB or pellet gun and, therefore, the trial court did not err by failing to give a sua sponte instruction explaining the difference. There was no ineffective assistance of counsel because the failure to argue an alternative defense theory is not objectively unreasonable as a matter of law. (People v. Thomas (1992) 2 Cal.4th 489, 531.) Here, defense counsel reasonably pursued Garcias alibi defense given the testimony of Abraham and Abrahams wife, which placed Garcia elsewhere at the very time the shooting occurred, and given the problems with the victims eyewitness identifications.

3. Two firearm use enhancements were proper.

Garcia contends the firearm use enhancements imposed in connection with counts 1 and 2 violated section 654 because his accomplice fired only a single shot in the parking lot. This claim is meritless.

Section 654, subdivision (a), provides: (a) 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. The issue of whether the multiple punishment bar of section 654 applies to sentence enhancements and, in particular to imposition of multiple enhancements for the single discharge of a firearm . . . under section 12022.53 . . . is currently pending before the California Supreme Court in People v. Palacios, S132144, review granted May 11, 2005. (People v. Gonzalez (2006) 146 Cal.App.4th 327, 332, fn. 6.)

But even if section 654 applies to section 12022.53 firearm use enhancements, the multiple victim exception would trump application of the statute in this case. Multiple punishment for violent offenses involving different victims is not barred by section 654. [Citation.] (People v. Higareda (1994) 24 Cal.App.4th 1399, 1413.) Thus, In re Tameka C. (2000) 22 Cal.4th 190, 198, held multiple firearm use enhancements should be imposed under section 12022.5 even where a single shot results in offenses being committed against more than one victim and the presence of one of the victims is unknown to the perpetrator. People v. Oates (2004) 32 Cal.4th 1048, held section 654 did not preclude imposition of multiple section 12022.53 enhancements where a defendant fires two shots at a group of five people, but hits and injures only one because [u]nder the multiple victim exception to section 654, defendant may be punished for each of the attempted murder offenses he committed . . . . The [section 12022.53] enhancements simply follow from his convictions on those substantive offenses. [Citation.] (Id. at pp. 1052, 1066.)

The trial court here properly imposed two firearm use enhancements in this case.

4. Gang enhancements were improperly imposed on counts 1 and 2.

Garcia contends the trial court erred by imposing two gang enhancements:

a 10-year enhancement in connection with count 1, and a 15-year minimum parole eligibility term in connection with count 2. The Attorney General properly concedes Garcia is correct.

Subdivision (e)(2) of section 12022.53 provides, in pertinent part: An enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.

As People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282, explained: [W]here section 186.22 [the gang enhancement] has been found to be applicable, in order for section 12022.53 to apply, it is necessary only for a principal, not the accused, in the commission of the underlying felony to personally use the firearm; personal firearm use by the accused is not required under these specific circumstances. However, as a consequence of this expanded liability under section 12022.53, subdivision (e), the Legislature has determined to preclude the imposition of an additional enhancement under section 186.22 in a gang case unless the accused personally used the firearm.

In this case, Garcias firearm use was vicarious, not personal. Therefore, the 15-year minimum parole eligibility term on count 2 and the 10-year enhancement on count 1 must be vacated.

DISPOSITION

The judgment is affirmed in part and reversed in part. The convictions and the sentences are affirmed except for the two gang enhancements, the 15-year minimum parole eligibility term on count 2 and the 10-year enhancement on count 1, which must be vacated. The clerk of the superior court shall prepare an amended abstract of judgment to reflect these modifications, and forward the amended abstract of judgment to the Department of Corrections.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.

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

^[2] All further calendar references are to the year 2004 unless otherwise specified.

^[3] At this time, D.V. saw both rear seat passengers aim guns at his car, but he did not hear any gunshots. K.V. testified that during the chase she saw the rear seat passenger on the drivers side stick a gun out the window and shoot at D.V.s car. K.V. heard two or three gunshots.

^[4] We do not distinguish between attempted murder and completed first degree murder for purposes of determining whether there is sufficient evidence of premeditation and deliberation. [Citation.] (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8.)

^[5] Citing Chinchilla approvingly, Smith said: Did the fact that defendant fired a single bullet at the victims as a matter of law preclude his conviction for the attempted murders of both Karen and the baby? The decision in Chinchilla . . . is directly on point. (People v. Smith, supra, 37 Cal.4th at p. 744.) Smith also said: [I]n order for the jury to convict defendant of the attempted murder of the baby, it had to find, beyond a reasonable doubt, that he acted with intent to kill that victim, i.e., that he purposefully shot into the vehicle with a deliberate intent to unlawfully take away [the babys] life [citation] or knowledge that his act of shooting into the vehicle would,   to a substantial certainty,   result in the babys death. . . .  (People v. Smith, supra, 37 Cal.4th at p. 743; see People v. Davenport (1985) 41 Cal.3d 247, 262 [  [F]or a result to be caused intentionally, the actor must either desire the result or know, to a substantial certainty, that the result will occur.  ].)

^[6] This evidence came in when defense counsel, referring to Officer Ellwoods police report, asked if she recalled D.V. saying the perpetrator pointed a revolver, no further description, at his vehicle and fired one shot. Ellwood said she did so recollect and that this was the information D.V. had given when he flagged her down.

^[7] At one point, Garcia tries to discredit D.V.s identification of the gun by asserting, The victim never handled a gun, by his own account. But D.V. did not testify he never handled a gun; he said he never shot a gun. In any event, the case law allows a witness without any special expertise to testify the defendant had a gun.