P. v. Sisneros











Filed 7/18/12 P. v. Sisneros CA2/7

>

>

>

>

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

>

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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









IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
SEVEN




>

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH SISNEROS, Defendant and Appellant.

B227912 (Los Angeles County Super. Ct. No. BA315862)

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Craig Veals, Judge. Affirmed as modified.



Syda
Kosofsky, under appointment by the Court of Appeal, for Defendant and
Appellant.



Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Steven E. Mercer and J. Michael Lehmann, Deputy Attorneys General, for
Plaintiff and Respondent.



_______________________________



INTRODUCTION

Two “validated Mexican Mafia
associates” were housed next to each other in single-person cells in the high
security unit of the Los Angeles County jail.
When deputies found one of these inmates trying to clean up the blood
pouring from two deep slices in his forearm, neither the injured inmate nor
anyone else would say what had happened.
There was blood in the adjacent cell, however, and Joseph Sisneros,
known as the “shot caller” on the row, said the other inmate “must have
fell.”

Sisneros was convicted of href="http://www.mcmillanlaw.com/">assault with a deadly weapon and custodial
possession of a weapon with gang, prior strike, great bodily injury and
personal use of a deadly weapon allegations found true. He was sentenced to a term of 44 years plus
50 years to life in state prison.
Sisneros appeals, claiming the gang allegation should have been
dismissed, the trial court should have bifurcated the gang allegation, the gang
expert’s testimony was improper, the trial court abused its discretion in
admitting evidence of a subsequent attack on the victim, and the trial court improperly
imposed a consecutive sentence and deadly weapon enhancement. In addition, we asked the parties to brief
the issue of whether imposition of the 10-year gang enhancement was improper in
this case.

As the People concede, the deadly
weapon enhancement must be stricken, and we conclude imposition of the 10-year
gang enhancement was improper, but in all other respects, we affirm.

FACTUAL AND PROCEDURAL SUMMARY

Inmates at
the Los Angeles County Jail who pose high security risks for various reasons are
housed in the Denver Row of 1700 module.
Denver Row is the “high-power, high-security module.” The inmates are primarily gang members. Unlike the general population, inmates in
1700 module are housed in single-person cells.
“It’s for the worst of the worst.”


The Mexican
Mafia is a violent prison gang that controls criminal activity within the
prisons, including murder, robbery,
extortion, and narcotics trafficking.
At the jail, it is important for deputies to know whether an inmate is a
member or associate of the Mexican Mafia as these inmates are
“approached . . . differently than most other
inmates.” The difference is in the
manner of “communication[--]in terms of respect.”

Mexican
Mafia associates are necessarily members of criminal street gangs as well. When a member of a Hispanic criminal street
gang enters jail or prison, he is “schooled” about how to conduct himself in
custody and with whom he may associate. The Mexican Mafia operates under a
“strict secrecy code.” Unlike members of
street gangs who are “very proud” of their gang affiliation and will tell you
“where they’re from,” the Mexican Mafia is “considered a secret organization”
and associates are not allowed to tell anyone they are with the Mexican
Mafia.

In January
2007, Joseph Sisneros and Richard Trujillo were housed in cells next to each
other on Denver Row. Both Sisneros and
Trujillo were “validated” active Mexican Mafia associates. Validation is a three-point system used to
document Mexican Mafia associates and members.
Validation requires three independent sources providing a direct link to
Mexican Mafia association or membership.
Sources include tattoos, written material, drawings and monitoring of
phone calls and mail, and validation information must be updated through a
review process to confirm continuing membership or association. Sisneros was validated at Folsom State Prison
in 1993. He was revalidated during a
review in 2000 at Tehachapi State Prison.
In January 2007, he was awaiting trial on crimes relating to Mexican
Mafia business.

Sisneros was known as the “shot
caller” on Denver Row, meaning he “had a lot of respect” and was the
representative who made decisions for the row.
Sisneros had authority over all of the other inmates on the row, and
they would have to get permission from him for anything they wanted to do. For example, he would decide whether the row
would have the television on or whether the inmates would come out for showers
or abide by the rules. If the row was
getting loud, one of the deputies (Deputy Love) would say, “Hey, Jojo.[href="#_ftn1" name="_ftnref1" title="">^[1]] You need to let the row know they need to
calm down. It’s getting a little
loud.” If Sisneros said, “All right,
Love. No problem,” “There would be no
more problems.” Before an inmate would
allow deputies to handcuff him in order to remove him from his cell to escort
him to another location, he called out, “Hey Camarada, should I hook up?”href="#_ftn2" name="_ftnref2" title="">^[2] Sisneros responded, “Go ahead.”

Sisneros
“ran a very orderly row”—“very strict,” “very disciplined,” very quiet.” He got along with staff at the jail, and he
was “able to keep everyone in line to act accordingly.” Trujillo who occupied the cell next to
Sisneros, however, was “brash,” “a little cocky,” and had an “attitude with a
chip on his shoulder at times.” He was
“always very confrontational, very controversial.” Other inmates would “go along with the
program,” but Trujillo was “constantly, always, always challenging
everything.”

On January 12, 2007, at about 5:50
p.m., Deputy Love was conducting a security check on the row. He could tell the row had been drinking
because he could smell the alcohol. He
knew there was a problem when he saw inmates in the backs of their cells as
that was unusual. He saw the inmate in
cell 14 looked “frightened, like he didn’t want any part of what had just
happened.” It was quiet. When he got to Trujillo’s cell (cell 13), it
was covered with a sheet and a red substance was flooding the floor. When Deputy Love peeked around the sheet to
see into the cell, he saw Trujillo at his sink, and he was “frantic[].” He was trying to wash his arm and trying to
clean up. There was “a lot of red,”
“some substance, resembling blood,” on towels and the wall. Usually when an inmate is injured or sick,
the other inmates yell “man down” to let deputies know something is wrong, but
no one called out for Trujillo.

Deputy Love called for Deputies
Martinez and Clift. When they got to
Trujillo’s cell, it “looked like something out of a movie. It looked like a crime scene. There was blood everywhere,” and Trujillo had
“two very large cuts on his arm.” He was
bleeding profusely. One of the
lacerations was about five inches long and an inch deep--so deep that
Trujillo’s tendons were visible. When
Deputy Love asked Trujillo what had happened, “There was no response. It was just the look in his
eyes . . . . It was fear. [Trujillo] was like he didn’t want any part
of it. He wasn’t going to get
involved.” Deputy Love had worked on
Denver Row in module 1750 for over four years.
At that point, Deputy Love knew he “wasn’t going to get a witness on the
row. There was going to be no
cooperation.”

Trujillo was “extremely agitated,
really upset” and pacing back and forth.
Deputy Love told Trujillo he needed to get him to the hospital “because
[he was] bleeding out.” Trujillo
insisted he did not need any help. He
was reluctant, but ultimately the deputies were able to get Trujillo’s arm
wrapped up so he could be handcuffed in his cell and escorted out.

Unlike the other inmates who looked
like they were hiding in the backs of their cells, Sisneros was sitting on his
desk with his arms and legs crossed, with his feet up on the bars, “relaxing”
with a “smirk on his face.” When Deputy
Love asked Sisneros what had happened, Sisneros said, “He must have fell.” His tone was “sarcastic,” his demeanor was
“laid back,” and he was “smirking.”

When deputies later examined
Sisneros’s cell, there was blood spatter on the bars next to the wall between
Sisneros’s and Trujillo’s cells. In
addition, there was blood on the desk, a bag and other small items within
Sisneros’s cell. No weapons were found. Sisneros smelled of fresh soap and he was
“very clean.” When he was asked if he
had washed his hands and his arms, Sisneros said, “Yes.” Asked why, he said, “Because I was
dirty.” He said Trujillo and he had
been talking and drinking “pruno” earlier but said he did not know what had
happened to Trujillo.href="#_ftn3"
name="_ftnref3" title="">^[3]

At the hospital, Trujillo told
deputies he had fallen off of his bunk.


Sisneros
was charged with custodial possession of a weapon (Pen. Code, § 4502, subd. (a)
[all further statutory references are to the Penal Code]) and assault with a
deadly weapon (§ 245, subd. (a)(1)), with gang and prior strike allegations
alleged as to both counts.href="#_ftn4"
name="_ftnref4" title="">^[4] (§ 186.22, subd. (b)(1)) [crime committed for
the benefit of a criminal street gang]; §§ 667, subds. (a)(1), (b)-(i);
1170.12, subds. (a)-(d) [two prior serious or violent felony convictions].) In addition, as to the assault with a deadly
weapon, it was further alleged Sisneros had inflicted great bodily injury (§
12022.7, subd. (b)(1)) and had personally used a deadly weapon (§ 12022, subd.
(b)(1)).

At trial,
the People presented evidence of the facts summarized above. Asked if he knew Sisneros, Trujillo
acknowledged “Joe” as “a friend of mine.”
Trujillo said he had known Sisneros for a couple of years. Asked whether Sisneros was a gang member,
Trujillo said, “Oh, no, I wouldn’t think so.
[The] guy’s a family man.”
Trujillo said the prosecutor was accusing “Joe,” of “inflicting a cut on
[his] arm that [he] inflicted on [his] own,” on his cell door. He acknowledged that he would lean out of his
cell with his arms through the bars talking to Sisneros, but said he had not
done so on the date of his injuries.
That day, he said, he got sentimental drinking “pruno” and decided to
write a letter to his girlfriend. He had
a razor blade in the bars of his cell to sharpen his pencil. His pencil needed sharpening so he went to
get it. A corner of it was sticking out
just a little bit. Trujillo said he was
leaning against the door, with the back of his hand on top of his head, and cut
himself the first time. He was drunk, he
said; he “didn’t even notice.” He put his
arm back up and cut himself again. He
looked at the ground and saw “a drop of blood.”
Shown photographs of his href="http://www.sandiegohealthdirectory.com/">injuries, he acknowledged
they looked “pretty deep,” but said “they weren’t that bad.”

Trujillo
was shown a video of his jail cell taken shortly after the incident and
acknowledged it “appeared” he had been “bleeding all over the cell.” After cutting himself, Trujillo said he
flushed one razor blade down the toilet and gave another one to a neighbor but
could not remember which one. Then he
tried to clean up his cell. He did not call for deputies, he testified, because
he “didn’t think it was that bad.”href="#_ftn5"
name="_ftnref5" title="">^[5] He acknowledged he initially refused to go to
the hospital, was uncooperative and refused to tell the deputies what happened
and was later placed in a solitary cell for two weeks. At the time of trial, Trujillo had two scars
on his forearm—one about four inches long and another about three inches
long.

Asked if he
was a member or associate of the Mexican Mafia, Trujillo said, “My goodness,
no.” Neither was Sisneros he said. Asked what the Mexican Mafia was, Trujillo
said, “I don’t know. . . . That’s
something out of my . . . understanding.”
He did not think he had heard the term before the prosecutor’s
question. Trujillo acknowledged he was
known as “Gato,” but said he was not and had never been a gang member. He acknowledged he had tattoos on his body,
including “ES Longos” on his abdomen, but denied he was a member of the Eastside
Longos street gang. He said the tattoo
indicated he was from the east side of Long Beach. He acknowledged he was housed in a single-man
cell on Denver Row as a “K-10 keepaway,” but said it was as a “disciplinary
measure” because he was “disruptive.”

Trujillo
testified at Sisneros’s preliminary hearing on May 21, 2007. A couple of weeks later, on June 8, 2007,
Trujillo was housed in the administrative segregation unit at North Kern State
Prison, a lockup unit housing inmates who belong to a prison gang; inmates
there are specifically classified individuals who are segregated from the
general population because they endanger the life and safety of other inmates
as well as staff. Upon arrival, inmates
appear before a classification committee for placement in the appropriate “yard
group,” determined by prison gang.
Trujillo was in the yard group for validated Mexican Mafia, Aryan
Brotherhood and Nazi Low Riders; in the prison setting, members of these gangs
get along with each other.

As recorded
on prison video camera footage, as Trujillo was released into the yard with
eight or nine other Mexican Mafia members and one Nazi Low Rider, the inmates
began shaking hands before their daily workout.
One validated Mexican Mafia member named Logan acted like he was going
to shake Trujillo’s hand but then started striking Trujillo with his fist. Two other validated Mexican Mafia members
joined in. Then one of the inmates made
a stabbing motion and the officer in the observation tower had to activate water
cannons with pepper spray to quell the incident before it escalated
further. On the videotape played for the
jury, a weapon could be seen protruding from Trujillo’s back. Another Mexican Mafia inmate pulled the
weapon out of his back and threw it toward a fence. The weapon—a four-inch metal rod--was
recovered at the location where it had been thrown.

Trujillo
said he had not been injured, stabbed or assaulted; he said he had been
settling an old, unrelated dispute when he got into a simple fistfight with
“some old friends.” He could not
remember their names but Logan was not one of them; and he was sure none of
them knew “Joe.” He said he had never
heard of the Aryan Brotherhood or the Nazi Lowriders.

Special
Agent Daniel Evanilla with the California Department of Corrections and
Rehabilitation testified he monitored the activities of the Mexican Mafia
prison gang and parolees from the prisons and was an expert on the gang. He had known Sisneros for years and had
arrested him “quite a few times” over the years; they had a “very professional
relationship.” Evanilla had his job to
do as a special agent; Sisneros had his job to do as a gang member. Evanilla said Sisneros had been given his
authority from Michael “Mosca” Torres who was “running” the Los Angeles County
jail for the Mexican Mafia at the time of Trujillo’s assault. The exchange in which another Denver Row
inmate addressed Sisneros as “Camarada” and asked him for permission to “hook
up” reflected Sisneros’s status as “shot caller” on the row. In addition, in December 2006 (the month
before Trujillo’s assault), Torres was housed next to another inmate (David
Steinberg). Two “kites” addressed to
Torres were recovered from Steinberg.href="#_ftn6" name="_ftnref6" title="">^[6] One had Sisneros’s name (“Jojo”) on it and
said: “Tell JoJo to give the money to
Old Boy so there won’t be any misunderstanding in the future.” This meant the Mexican Mafia leaders trusted
Sisneros with money. Another kite found
in Sisneros’s cell was a “roll call” of inmates in the high-power unit which
demonstrated his status as “shot caller” empowered by the Mexican Mafia to run
the row; he is in charge and needs to know who is on the row and in his
area.

Although he
is a validated Mexican Mafia associate, Evanilla testified, Trujillo is “considered
to be in bad standing with the Mexican Mafia” as evidenced by the January 2007
“slicing” incident as well as the June 2008 stabbing. Asked if a validated Mexican Mafia member or
associate could acknowledge their association or membership in open court at
trial, Evanilla said, “That’s a death
wish. . . . They would be killed.”

Sisneros
presented no testimony in his own defense.

Sisneros
admitted the prior conviction allegations and was convicted of custodial
possession of a weapon and assault with a deadly weapon with the gang, prior
strike, great bodily injury and personal use allegations all found true.

The trial
court sentenced Sisneros to a state prison term of 44 years plus 50 years to
life, calculated as follow: on the
custodial possession of a deadly weapon count, the trial court imposed a term
of 25 years to life, plus 10 years pursuant to section 186.22, subdivision
(b)(1)(C) (crime committed for the benefit of a criminal street gang), plus 10
years pursuant to section 667, subdivision (a), for a total term of 20 years
plus 25 years to life; on the assault with a deadly weapon count, the trial
court imposed a term of 25 years to life, plus 10 years pursuant to section
186.22, subdivision (b)(1)(C), plus 1 year pursuant to subdivision (b) of
section 12022, plus 3 years pursuant to section 12022.7, plus another 10 years
pursuant to section 667, subdivision (a) for a total term of 24 years plus 25
years to life on this count.

Sisneros
appeals.

>DISCUSSION



Sisneros Has Failed to Demonstrate Prejudicial Error in the Trial
Court’s Denial of His Section 995 Motion to Dismiss the Gang Allegation at the
Preliminary Hearing.



According
to Sisneros, the trial court erred in denying his motion to dismiss the gang
allegation because he says no evidence was presented at his preliminary hearing
to provide “reasonable or probable cause” to believe he had committed the
charged offenses “for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members”—apart from Agent Evanilla’s
improper testimony he believed Trujillo “most definitely disrespected
[Sisneros] as the official representative on that row.” (§ 186.22, subd. (b)(1).) Sisneros says there was no evidence Trujillo
had actually disrespected Sisneros warranting retaliation on behalf of the
gang; he says Trujillo was “generally cocky and disrespectful,” but “even
Detective Clift testified he knew of no prior tension between Sisneros and
Trujillo.” In Sisneros’s view, the gang
evidence was irrelevant and highly inflammatory, and without it, given the
“equally plausible stories”—the prosecution theory that Sisneros reached
through the bars of his cell to inflict two cuts on Trujillo’s arm and
Trujillo’s claim that he accidentally cut himself with a hidden razor blade
while drunk—“the jury likely would have had reasonable doubt as to whether
Sisneros committed the charged offenses.”
Sisneros says the fact the jury deliberated for almost six hours over
three separate days indicates this was “a close case.” We disagree.


“[O]n appeal defendants are required
to establish not only that the denial of their section 995 motions was
erroneous, but also that they were prejudiced by such error.” (>People v. Letner and Tobin (2010) 50
Cal.4th 99, 140.) Sisneros cannot show
that he was prejudiced by the trial court’s denial of his motion to dismiss the
gang allegation because the jury convicted him of the charged offenses and
found true the gang allegation following a trial in which the prosecution
presented sufficient evidence of the charges and special allegations.href="#_ftn7" name="_ftnref7" title="">^[7] (Ibid.,
additional citations omitted [“‘Even “‘“[i]f there is insufficient evidence
to support the commitment, the defendant cannot be said to be prejudiced where
sufficient evidence has been introduced at . . . trial”’” to support the jury’s
finding as to the charge or as to the truth of the allegation.’”].)



The Trial Court Did Not Abuse Its Discretion in Denying Sisneros’s Motion
to Bifurcate the Gang Allegation.

Even if the gang allegation was
properly brought to trial, Sisneros says, the trial court erred in denying his
motion to bifurcate the gang allegation from the substantive offenses because
the gang evidence was not relevant to motive or witness bias and its probative
value was substantially outweighed by its prejudicial effect. We disagree.



The trial
court is vested with discretion to determine whether a gang allegation should
be bifurcated for trial, and the trial court’s ruling is reviewed for an abuse
of that discretion. (People v. Hernandez (2004)
33 Cal.4th 1040, 1048.) “[T]he criminal
street gang enhancement is attached to the charged offense and is, by
definition, inextricably intertwined with that offense.” (Ibid.) “[E]vidence of
gang membership is often relevant to, and admissible regarding, the charged
offense. Evidence of the defendant’s
gang affiliation—including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries, and the
like—can help prove identity, motive, modus operandi, specific intent, means of
applying force or fear, or other issues pertinent to guilt of the charged
crime. [Citations.] To the extent the evidence supporting the
gang enhancement would be admissible at a trial of guilt, any inference of
prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]”
(Id. at pp. 1049-1050.) “Even if some of the evidence offered to
prove the gang enhancement would be inadmissible at a trial of the substantive
crime itself—for example, if some of it might be excluded under Evidence Code
section 352 as unduly prejudicial when no gang enhancement is charged—a court
may still deny bifurcation. In the
context of severing charged offenses, we have explained that ‘additional
factors favor joinder. . .
.’” (Id.
at p. 1050, citation omitted.)

As we noted in People v.
Albarran (2007) 149 Cal.App.4th 214, “[T]he
decision on whether evidence, including gang evidence, is relevant, not unduly
prejudicial and thus admissible, rests within the discretion of the trial
court. [Citation.] ‘Where, as here, a discretionary power is
statutorily vested in the trial court, its exercise of that discretion “must
not be disturbed on appeal except on a showing that the court exercised its
discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice.”’” (Id. at pp. 224-225, citations omitted.) Yet, Sisneros argues his case is similar to
the facts presented in Albarran, where
the defendant claimed he had been convicted of being a member of a dangerous
street gang known as the 13 Kings and having a tattoo showing his allegiance to
the Mexican Mafia despite being charged with an unrelated carjacking. (People
v. Albarran, supra, 149 Cal.App.4th at p. 220.) We disagree.


Here, as the Attorney General argues, Sisneros’s assertion that there
was no evidence of personal tension between Sisneros and Trujillo misses the
point. The prosecution’s theory of the
case was that the attack on Trujillo was gang-motivated, not merely a personal dispute between inmates. Because Sisneros was obligated to act as the
“shot caller” for the Mexican Mafia in “running the row” and had been
successful in commanding respect and running an orderly row, the prosecution’s
theory was that Trujillo’s disorderly and disrespectful behavior disrupted
Sisneros’s row and conflicted with Sisneros’s exercise of authority on behalf
of the Mexican Mafia such that it precipitated Sisneros’s “regulat[ion]” of
Trujillo, to get him under control and in compliance with Sisneros’s and in
turn the Mexican Mafia’s authority in the jail.
Therefore, the gang evidence was properly admitted to show Sisneros’s
motive. (People v. Hernandez, supra, 33 Cal.4th at p. 1049; >People v. Funes (1994) 23 Cal.App.4th
1506, 1518 [The People are entitled to “introduce evidence of gang affiliation
and activity where such evidence is relevant to an issue of motive or intent”];
and see People v. Gonzalez (2005) 126
Cal.App.4th 1539, 1551 [“The law does not disfavor the admission of expert
testimony that makes comprehensible and logical that which is otherwise
inexplicable and incredible. . . . [F]ew
among us know enough about the gang activities organized by the Mexican Mafia
in Men’s Central Jail to understand an inmate’s cold-blooded attempt to murder
a nearly naked defenseless fellow inmate who did nothing to provoke the
attack”].) We find no abuse of discretion
in the trial court’s denial of Sisneros’s motion to bifurcate the gang
allegation. (People v. Hernandez, supra, 33 Cal.4th at p. 1051.) It follows that he was not deprived of a fair
trial as a result of the denial.



Sisneros Has Failed to Demonstrate Prejudicial Error in Connection With
Agent Evanilla’s Expert Testimony.

Citing People v. Killebrew (2002)
103 Cal.App.4th 644, 657-658, Sisneros says, even if the gang allegation was
properly tried with the substantive offenses, there was no substantial
admissible evidence to prove he committed his crimes for the benefit of, at the
direction of or in association with a criminal street gang, with the specific
intent to promote, further, or assist in any href="http://www.fearnotlaw.com/">criminal conduct by gang members as
required for purposes of section 186.22, subdivision (b)(1). According to Sisneros, the only evidence of
his intent came from the prosecution’s gang expert (Agent Evanilla) who, in
response to a hypothetical based on a “fact scenario that exactly mirrored the
facts of this case,” impermissibly testified on the ultimate issue of his
intent. We disagree.

The prosecutor told Agent Evanilla she was going to give him a
hypothetical and that “for purposes of this hypothetical, I need you to assume
that what I’m going to say in this hypothetical, that these things are
true. Okay?

“[Agent Evanilla:] Yes.

“[The prosecutor:] Okay.
So, at this point, I’ll start the hypothetical with assuming that there
are two validated Mexican Mafia associates that are being housed in Denver Row
on the 1750 D Module, high-power security module, of the County jail.

“One of the validated Mexican Mafia
associates, we will call him the shot caller; that he is the shot caller of
that row. And that . . . in November of
2006, he had been referred to as ‘Camarada’ by one of the other inmates asking
permission to be hooked up; that . . . this first individual that I’m talking
about that we’re going to call ‘shot caller’ for the purposes of the
hypothetical; that he is in custody on a Mexican Mafia business-related crime
and that he was referred to as ‘Camarada’ and was asked permission to even just
hookup or be escorted out of his cell.

“This other Mexican Mafia associate,
and we’ll call him Mexican Mafia associate No. 2, he is known to be disobedient
not only to staff but also to other inmates.
And both of them are housed in single-man cells.

“The shot-caller Mexican-Mafia
associate runs a very orderly row. He is
well respected by all of the other inmates.

“The other second Mexican Mafia associate
does not conduct himself in the way that the shot caller likes his row to be
run.

“On a particular day, [i]n January
2007, the second Mexican Mafia associate is drinking pruno alcohol in jail and
while he’s very drunk he has tended on other occasions to stick his arms out of
the jail cell. Other law enforcement
officers, deputies, have seen him do this on occasion.

“And as he has his arms sticking out
of the cell close to the shot caller’s cell, the shot caller with some sort of
weapon, that he gets rid of eventually, sticks his hand out of his cell, slices
the second Mexican Mafia associate’s arm twice on the side that’s closest to
him. And at that time, the second
Mexican Mafia associate does not complain, says nothing. Doesn’t ask for help. Doesn’t cry for help.

“All of the other inmates
while—usually if someone has hurt themselves or has had an accident or
inflicted an injury on themselves, usually those other inmates on that row will
scream and ask for help. On this occasion,
nothing is said. Nothing is spoken.

“At some point, one of the deputies
during a catwalk check sees that the second Mexican Mafia associate has injured
himself. When he goes onto the row, he
notices that no one will go to the bars, no one greets him or says anything. They are all extremely silent and withdrawn
into their cells.

“When he walks by the shot caller,
the shot caller is the only one who is even close to the bars, has his feet up
casually and smirking and says, ‘He must have fell,’ regarding the second Mexican
Mafia associate.

“At that time, the deputy looks at
him, the second Mexican Mafia associate, who is very volatile and defiant with
him, will not cooperate in the beginning to get help, will not say what
happened to him, but then finally as his arm is wrapped up he’s escorted out.

“At that time, he goes to the
hospital and on a videotape tells the detective that’s videotaping him, ‘I fell
off my bunk.’

“At the preliminary hearing, that
second Mexican Mafia associate comes on the witness stand and lies and says
that he . . . cut himself. He sliced
himself in his cell.

“That second Mexican Mafia
associate, four months later when he’s sent to Delano State Prison, is at that
time stabbed and beaten by other Mexican Mafia associates on the yard.

“In addition, at the jury trial in
front of a jury when he’s escorted out again the second Mexican Mafia associate
testifies that he’s never heard of the Mexican Mafia. He doesn’t know what that means. He’s never known a gang member. Even though he’s in Pelican Bay and state
prison, he’s never belonged to a gang.

“He has the tattoo of ‘Eastside
Longos’ tattooed across his abdomen and says that’s not even a gang and it
stands for Long Beach. And while he
testifies, he persists that he sliced himself in his cell.

“Based on that hypothetical, do you
have an opinion as to whether or not this crime was committed either in
furtherance of, for the benefit of, or even in association with the Mexican
Mafia?

“[Agent Evanilla:] Yes.

“[The prosecutor:] And what do you base that opinion on and what
is your opinion first?

“[Agent Evanilla:] Well, Mr. Torres, who was the Mexican Mafia
member running the County jail for the Mexican Mafia at that time, empowered
Mr. Sisneros to run –

“[Defense counsel:] Your Honor, I’m going to object. This is outside the scope of the form of the
hypothetical. It’s going to ultimate
facts.

“The Court: I’ll sustain the objection.

“[The prosecutor:] Mr. Evanilla, just based on the hypothetical
that I have given to you, and I’ll include in that hypothetical that the
Mexican Mafia member who was running the County jail at the time gave the shot
caller status as the shot caller in Denver Row.
And that is also part of that hypothetical.

“Based on that hypothetical, using
the terms within that hypothetical, what is your opinion?

“[Agent Evanilla:] At that time, that shot caller had a
responsibility to, as we call it, in prison talk, regulate Mr. Trujillo or the
–

“[The prosecutor:] Second?

“[Agent Evanilla:] – Second Mexican Mafia member as indicated in
your hypothetical because of his lack of respect for the first Mexican Mafia
associate, Mr. Sisneros.

“[Defense counsel:] Again, Your Honor, it’s going outside the
scope of the hypothetical.

“[The prosecutor:] You mean the shot –

“[Defense counsel:] When the witness testifies in that manner.

“The Court: I think he may have misspoken though. Why don’t you ask him another question.

“[The prosecutor:] So, yes, if you could just refer to that
person as the shot caller instead of using any names.

“[Agent Evanilla:] Okay.
So the shot caller has the responsibility to maintain the reputation of
the Mexican Mafia within the Los Angeles County Jail. And if the shot caller doesn’t take action
against this other disrespectful second Mexican Mafia associate, the shot
caller will be deemed weak, and weakness is not accepted by the Mexican Mafia.

“So ergo, the shot caller will
probably be assaulted or killed because of his lack of authority and control of
that particular row. So he has a
responsibility to deal with that second Mexican Mafia associate who’s out of
line and does not show the respect that he should towards the shot caller.

“[The prosecutor:] Is there anything else that you base your
opinion on?

“[Agent Evanilla:] Well, as I indicated earlier in my testimony,
the Mexican Mafia . . . operates under the fear, auspices of fear and
intimidation. And, again, if the shot
caller doesn’t do what he’s supposed to do, then he is going to be deemed for
assault or murder himself.

“[The prosecutor:] And what about the fact that the second
Mexican Mafia associate persistently denies that anything happened to him other
than he inflicted this injury on himself?
How does that in any way show you that this was done within Mexican Mafia
business?

“[Agent Evanilla: T]hat’s all part of the code not to cooperate
with law enforcement in their investigation, and that’s all part of the secrecy
that they have. And sometimes inmates in
this particular situation will try to clean themselves up and get back in good
graces within the organization.

“But in the second Mexican Mafia
associate’s situation now, that person is not going to get back in the good
graces.

“[The prosecutor:] And is that based on that second incident up
at Delano State Prison?

“[Agent
Evanilla:] Yes.”

According
to Sisneros, there are two problems with this testimony. First, he says, there was no evidence
Trujillo had disrespected Sisneros. To
the contrary, the record included evidence that Sisneros was the shot caller on
the row--that he ran an orderly row and that he commanded respect, with other
inmates deferring to Sisneros’s authority such that an inmate would even ask
for permission before allowing deputies to place him in handcuffs to be
escorted out of his cell. The record
contained considerable circumstantial evidence that Trujillo’s disrespectful
and disruptive behavior was at odds with Sisneros’s authority as the Mexican
Mafia’s shot caller on the row and his manner of exercising that authority.

Next, citing
In re Frank S. (2006) 141 Cal.App.4th
1192, Sisneros argues, the “thinly veiled” hypothetical permitted the expert to
improperly testify that Sisneros possessed a specific intent. We disagree.


In fact, in
People v. Vang (2011) 52 Cal.4th
1038, 1045 (Vang), our Supreme Court
specifically concluded the Court of Appeal had “erred in condemning the
hypothetical questions [in that case] because they tracked the evidence in a
manner that was only ‘thinly disguised.’”


“‘[C]onsiderable
latitude must be allowed in the choice of facts as to the basis upon which to
frame a hypothetical question,’” but “the questions must be rooted in the
evidence of the case being tried . . . .” (>Vang, supra, 52 Cal.4th at p.
1046.) As the Vang court explained,
“‘Testimony in the form of an opinion that is otherwise admissible is
not objectionable because it embraces the ultimate issue to be decided by the
trier of fact.’ [Citations.] Rather, the reason for the rule is similar to
the reason expert testimony regarding the defendant’s guilt in general is
improper. ‘A witness may not express an
opinion on a defendant’s guilt.
[Citations.] The reason for this
rule is not because guilt is the ultimate issue of fact for the jury, as
opinion testimony often goes to the ultimate issue. [Citations.] “Rather, opinions on guilt or
innocence are inadmissible because they are of no assistance to the trier of
fact. To put it another way, the trier
of fact is as competent as the witness to weigh the evidence and draw a
conclusion on the issue of guilt.”’ [Citations.]” (Id.
at p. 1048.)

In >Vang, the court observed, “[the
detective who testified] had no personal knowledge whether any of the
defendants assaulted [the victim] and, if so, how or why; he was not at the
scene. The jury was as competent as the
expert to weigh the evidence and determine what the facts were, including
whether the defendants committed the assault.
So he could not testify directly whether they committed the assault for
gang purposes. But he properly could,
and did, express an opinion, based on hypothetical questions that tracked the
evidence, whether the assault, if the jury found it in fact occurred, would
have been for a gang purpose. ‘Expert
opinion that particular criminal conduct benefited a gang’ is not only
permissible but can be sufficient to support the Penal Code section 186.22,
subdivision (b)(1), gang enhancement. (>People v. Albillar [(2010)] 51 Cal.4th
[47,] 63.) It is true that [the
detective’s] opinion, if found credible, might, together with the rest of the
evidence, cause the jury to find the assault was gang related. ‘But this circumstance makes the testimony
probative, not inadmissible.’” (>Vang, supra, 52 Cal.4th at pp.
1048-1049, citation omitted.)

As the
quoted testimony demonstrates, Agent Evanilla testified in a permissible
manner, that is, he “answered hypothetical questions based on other evidence
the prosecution presented,” in a manner “quite typical of the kind of expert
testimony regarding gang culture and psychology that a court has discretion to
admit.” (People v. Gonzalez (2006) 38
Cal.4th 932, 946, citing People v.
Gonzalez, supra, 126 Cal.App.4th at p. 1551, further citation omitted [“‘It
[is] difficult to imagine a clearer need for expert explication than that presented
by a subculture in which this type of mindless retaliation promotes
“respect”’”].) “[E]xpert testimony is
permitted even if it embraces the ultimate issue to be decided. (Evid. Code, § 805.) The jury still plays a critical role in two
respects. First, it must decide whether
to credit the expert’s opinion at all.
Second, it must determine whether the facts stated in the hypothetical
questions are the actual facts, and the significance of any difference between
the actual facts and the facts stated in the questions.” (Vang,
supra, 52 Cal.4th at pp. 1049-1050.)


Here, when
Agent Evanilla mentioned Sisneros by name, the trial court sustained defense
counsel’s objection and the prosecutor redirected Agent Evanilla to testify
only with respect to the facts he was asked
to assume for purposes of the hypothetical.
It was up to the jury to decide whether the underlying facts on which
Evanilla’s opinion was based had been proven to their satisfaction, and the
jury so concluded. For the reasons
addressed in Vang, supra, 52 Cal.4th
1038, we find no error and, in any event, no prejudice. (Id.
at p. 1051 [“The jury must still find the facts after considering all of the
evidence, the court’s instructions, and the parties’ arguments. Hypothetical questions must not be prohibited
solely because they track the evidence too closely, or because the questioner
did not disguise the fact the questions were based on the evidence.”].)









Imposition of the
10-Year Gang Enhancement under Subdivision (b)(1)(C) of Section 186.22 Was
Improper.

We asked
the parties to brief the issue of whether the imposition of the 10-year gang
enhancement under section 186.22, subdivision (b)(1)(C) was improper in light
of subdivision (b)(5).

Section
186.22, subdivision (b)(1)(C) provides:
“Except as provided in paragraphs (4) and (5), any person who is
convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members, shall, upon
conviction of that felony, in addition and consecutive to the punishment
prescribed for the felony or attempted felony of which he or she has been
convicted, be punished as follows:
[¶] . . . [¶] (C) If the felony is a violent felony,
as defined in subdivision (c) of Section 667.5, the person shall be punished by
an additional term of 10 years.”

Subdivision
(b)(5) provides: “Except as provided in
paragraph (4) [addressing specified felonies not relevant here], any person who
violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not
be paroled until a minimum of 15 calendar years have been served.” (Italics added.) The phrase “punishable by imprisonment in the
state prison for life” includes both a straight life term as well as a term
expressed as a number of years to life. (People v. Lopez (2005) 34 Cal.4th 1002, 1007, citation omitted
[“the Legislature intended section 186.22(b)(5) to encompass both a straight
life term as well [as] a term expressed as years to life (other than those
enumerated in subdivision (b)(4)) and therefore intended to exempt those crimes
from the 10-year enhancement in subdivision (b)(1)(C)”]; and see >People v. Sengpadychith (2001) 26
Cal.4th 316, 327.)





In this
case, Sisneros was convicted of assault with a deadly weapon (§ 245, subd.
(a)(1))href="#_ftn8" name="_ftnref8" title="">^[8] and possession of a weapon while in a penal
institution (§ 4502, subd. (a)).href="#_ftn9"
name="_ftnref9" title="">^[9] Standing alone, subdivision (a)(1) of section
245 provides for imprisonment in the state prison for a maximum term of four
years and subdivision (a) of section 4502 provides for imprisonment for a
consecutive term of up to four years.
However, because it was alleged and proven that Sisneros had two prior
“strikes”, the trial court sentenced him to a term of 25 years to life under
the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12) on each of these two
offenses, instead of sentencing him pursuant to the terms set forth in sections
245 and 4502, before adding the 10-year gang enhancement pursuant to section
186.22, subdivision (b)(1)(C) on each count, in addition to the other increases
in his sentence.

Relying
primarily on People v. Montes (2003)
31 Cal.4th 350, 352, the Attorney General says section 186.22, subdivision
(b)(5) does not apply to life sentences imposed under the Three Strikes Law
because “[subdivision] (b)(5) applies only where the felony >by its own terms provides for a life
sentence.” (Italics added.)

However,
citing People v. Jones (2009) 47
Cal.4th 566, 578 (Jones), Sisneros
says the determination of whether a felony is “punishable by imprisonment in
the state prison for life” under subdivision (b)(5) of section 186.22 depends
on the penalty provision applicable to the underlying offense; therefore
subdivision (b)(5) does apply in this case and imposition of the 10-year
enhancement pursuant to subdivision (b)(1)(C) was improper. We agree with Sisneros.

In >Jones, the defendant was convicted of
shooting at an inhabited dwelling (§ 246).
“By itself, that felony carries a maximum sentence of seven years in
prison. But when, as here, the crime is
committed to benefit a criminal street gang, the punishment is life
imprisonment, with a minimum parole eligibility of 15 years. (§ 186.22(b)(4).) And when, as here, a defendant personally and
intentionally discharges a firearm in the commission of ‘[a]ny felony
punishable by … imprisonment in the state prison for life’ (§ 12022.53, subd. (a)(17)), section
12022.53(c) requires imposition of an additional 20-year prison term.” (Jones,
supra, 47 Cal.4th at p. 572.) In >Jones, “At issue [wa]s whether defendant
committed a ‘felony punishable
by . . . imprisonment . . . for life’
(§ 12022.53, subd. (a)(17)), thus triggering application of the 20-year
sentence enhancement under section 12022.53(c).” (Id.
at p. 569.)

In >Jones, the defendant argued “the trial
court’s finding [he] shot at an inhabited dwelling (§ 246) to benefit a
criminal street gang (§ 186.22(b)(4)) does not transform the section 246
violation and its seven-year maximum prison term into a felony punishable by
life imprisonment [with a minimum parole eligibility of 15 years], because
section 186.22(b)(4) sets forth a penalty, not a substantive offense.” (Jones,
supra, 47 Cal.4th at p. 572.) The >Jones court noted, “Defendant is correct
that section 186.22[, subdivision] (b)(4) is a penalty provision. A penalty provision ‘sets forth an >alternate penalty for the underlying
felony itself, when the jury has determined that the defendant has satisfied
the conditions specified in the statute.’
(People v. Jefferson (1999) 21
Cal.4th 86, 101 [86 Cal. Rptr. 2d 893, 980 P.2d 441].) In Robert
L. v. Superior Court (2003) 30 Cal.4th 894 [135 Cal. Rptr. 2d 30, 69 P.3d
951], this court held that another subdivision of the same statute (§ 186.22,
subd. (d)) was a penalty provision, explaining:
‘Section 186.22(d) is not a sentence enhancement because it does not add
an additional term of imprisonment to the base term; instead, it provides for
an alternate sentence when it is proven that the underlying offense has been
committed for the benefit of, or in association with, a criminal street
gang. Neither is it a substantive
offense because it does not define or set forth elements of a new crime.’ (Robert
L., supra, at p. 899.) This is also
true of section 186.22(b)(4), the provision at issue here. [Citation.]
[§ 186.22 (b)(4) ‘is an alternate penalty provision that provides for an
indeterminate life sentence for certain underlying felony offenses that are
gang related’].)” (Jones, supra, 47 Cal.4th at p. 576, original italics.)

As the
Attorney General notes, in Montes, supra,
31 Cal.4th 350, the court stated, “[subdivision] (b)(5) applies only where the
felony by its own terms provides for
a life sentence.” As the >Jones court explained, “In >Montes, the defendant was convicted of
attempted murder; the trial court found that he caused great bodily injury by
personally and intentionally discharging a firearm (§ 12022.53, subd. (d)) and
that he committed the crime to benefit a criminal street gang (§ 186.22). A defendant falling within the reach of
subdivision (d) of section 12022.53 must be given, as additional punishment, a
consecutive sentence of 25 years to life; subdivision (b)(5) of section 186.22
provides that a defendant who commits ‘a felony punishable by imprisonment in
the state prison for life’ to benefit a criminal street gang must serve at
least 15 years before becoming eligible for parole. At issue in Montes was whether a crime subject to the additional punishment
provided for in subdivision (d) of section 12022.53 is ‘a felony punishable by
imprisonment for life’ within the meaning of subdivision (b)(5) of section
186.22.[] We held that it was not,
explaining that subdivision (b)(5) of section 186.22 ‘applies only where the
felony by its own terms provides for a life sentence.’ (Montes,
supra, at p. 352.)” (>Jones, supra, 47 Cal.4th at p. 577, fn.
omitted.)

More
particularly, the Jones court
emphasized, the issue in Montes, >supra, 31 Cal.4th 350, “was in some
respects the reverse of the issue [in Jones].” “[T]he life term imposed in >Montes under section 12022.53 was a
sentence enhancement, whereas in
[Jones] the life term was imposed under section 186.22(b)(4), a >penalty provision . . . . [T]his is an important
distinction.” (Jones, supra, 47 Cal.4th at p. 578, fn. 5, italics in original
& added.) “Unlike the life sentence
of the defendant in Montes, supra, 31
Cal.4th 350, which was imposed as a sentence
enhancement (a punishment added to the base term), here defendant’s life
sentence was imposed under section 186.22(b)(4), which sets forth the penalty
for the underlying felony under specified conditions. The difference between the two is subtle but
significant. ‘Unlike an enhancement,
which provides for an additional term
of imprisonment, [a penalty provision] sets forth an alternate penalty >for the underlying felony itself, when
the jury has determined that the defendant has satisfied the conditions
specified in the statute.’ (>People v. Jefferson, supra, 21 Cal.4th
at p. 101, italics added & omitted.)
Here, defendant committed the felony of shooting at an inhabited
dwelling (§ 246), he personally and intentionally discharged a firearm in the
commission of that felony (§ 12022.53(c)), and because the felony was committed
to benefit a criminal street gang, it
was punishable by life imprisonment (§ 186.22(b)(4)). Thus, imposition of the 20-year sentence
enhancement of section 12022.53(c) was proper.”
(Jones, supra, 47 Cal.4th at
p. 578, original italics.)

Similarly,
in this case, Sisneros was convicted of assault with a deadly weapon (§ 245,
subd. (a)(1)) and possession of a weapon while in a penal institution (§ 4502,
subd. (a)). Because it was alleged and
proven that Sisneros had two prior “strikes”, his current felonies were
“punishable by imprisonment in the state prison for life.” (§§ 667, subds. (b)-(i), 1170.12; and see >People v. Superior Court (>Romero) (1996) 13 Cal.4th 497, 527,
italics added [“The Three Strikes law, like the older ‘Habitual Offender Law’
(§ 667.7) construed in People v. Jenkins
(1995) 10 Cal. 4th 234 [40 Cal. Rptr. 2d 903, 893 P.2d 1224], articulates >an alternative sentencing scheme for the current
offense rather than an enhancement”].)
Therefore, imposition of the 10-year gang enhancement pursuant to
section 186.22, subdivision (b)(1)(C) was improper; instead, the 15-year
minimum parole term applies to each count (in addition to the other increases
in Sisneros’s sentence).

To the
extent the Attorney General argues this construction will thwart legislative
intent, we disagree. As our Supreme
Court stated in People v. Lopez, supra, 34
Cal.4th 1002, 1006, “We turn first to the statutory language, giving the words
their ordinary meaning,” and “[i]f the statutory language is not ambiguous,
then the plain meaning of the language governs.” Therefore, as the Lopez court determined, where as here “the plain language of
section 186.22(b)(5) governs,” it is error to apply the 10-year gang
enhancement under subdivision (b)(1)(C).
(Id. at p. 1011.) “Proposition 21 recognized that not all of
its provisions necessarily established the greatest possible punishment” and
the “fact that [another statute] fixes a parole eligibility date equal to or
greater than that provided by section 186.22(b)(5) is neither an absurdity nor
an anomaly but rather the type of contingency contemplated by . . . the
initiative.” (Id. at p. 1009.)



Sisneros Has Failed to Demonstrate Prejudicial Error in the Trial
Court’s Admission of Evidence of the Subsequent Attack on Trujillo by Mexican
Mafia Associates.

According to Sisneros, the trial
court abused its discretion in allowing the admission of evidence of Trujillo’s
attack by Mexican Mafia associates at North Kern State Prison shortly after he
testified at Sisneros’s preliminary hearing because the probative value of this
evidence was substantially outweighed by its prejudicial effect and he was
deprived of a fair trial as a result. We
disagree.

The evidence was relevant to explain
Trujillo’s testimony, conduct and standing with respect to the Mexican Mafia,
particularly in light of Trujillo’s denials he had been stabbed or had ever
even heard of the Mexican Mafia. We reject
Sisneros’s repeated claim the jury was otherwise presented with two “equally
plausible stories,” find no abuse of discretion in the admission of this
evidence (People v. Rodrigues (1994)
8 Cal.4th 1060, 1124), and further find Sisneros has failed to establish that
he was deprived of a fair trial as a result.




>The Trial Court Acted Within Its Discretion
in Imposing Consecutive Sentences.



Sisneros
was convicted on one count of custodial possession of a deadly weapon and one
count of assault with a deadly weapon.
The trial court sentenced him to a state prison term of 44 years plus 50
years to life, calculated as follow: on
the custodial possession of a deadly weapon count, the trial court imposed a
term of 25 years to life, plus 10 years pursuant to section 186.22, subdivision
(b)(1)(C) (crime committed for the benefit of a criminal street gang), plus 10
years pursuant to section 667, subdivision (a), for a total term of 20 years
plus 25 years to life; on the assault with a deadly weapon count, the trial
court imposed a term of 25 years to life, plus 10 years pursuant to section
186.22, subdivision (b)(1)(C), plus 1 year pursuant to subdivision (b) of
section 12022, plus 3 years pursuant to section 12022.7, plus another 10 years
pursuant to section 667, subdivision (a) for a total term of 24 years plus 25
years to life on this count.

According to Sisneros, the trial
court’s imposition of consecutive terms violates section 654 in this case. We disagree.
Section 654 prohibits multiple punishment for conduct that violates more
than one statute but constitutes an indivisible transaction. (People
v. Perez (1979) 23 Cal.3d 545, 551.)
Whether a defendant’s conduct amounts to a single act or separate acts
is a factual matter for the trial court to resolve. (People
v. Harrison (1989) 48 Cal.3d 321, 335; People
v. Perez, supra, 23 Cal.3d at p. 552, fn. 5.) The trial court need not explicitly state
that it is considering and rejecting section 654 and its implicit finding that
section 654 does not bar consecutive sentencing will not be reversed on appeal
if there is substantial evidence to support such a determination. (People
v. McCoy (1992) 9 Cal.App.4th 1578, 1585; People v. Coleman (1989) 48 Cal.3d 112, 162.)

According to the record, Sisneros
was alone in his cell and there was no evidence he obtained the weapon used to
slice Trujillo at the moment of the assault; rather, the record supports the
conclusion Sisneros was in possession of the weapon prior to the attack on
Trujillo and possession prior to the assault supports the imposition of
consecutive terms. (See >People v. Jones (2002) 103 Cal.App.4th
1139, 1145 [“section 654 is inapplicable when the evidence shows that the
defendant arrived at the scene of his or her primary crime already in possession
of the firearm”].)



>As the Attorney General Concedes, the
One-Year Deadly Weapon Enhancement on Count 3 Must Be Stricken.



To the extent Sisneros argues the
trial court erred in imposing a deadly weapon use enhancement on a sentence for
an assault with a deadly weapon, he is correct and the Attorney General
concedes the point. (See >People v. Summersville (1995) 34
Cal.App.4th 1062, 1069-1070; People v.
McGee (1993) 15 Cal.App.4th 107, 115.
It follows that the judgment should be corrected by striking the
one-year deadly weapon enhancement pursuant to section 12022, subdivision
(b)(1) in connection with count 3.

DISPOSITION

The judgment is modified to strike
the one-year deadly weapon enhancement added to the assault with a deadly
weapon count (count 3). In addition, the
10-year gang enhancements imposed under Penal Code section 186.22, subdivision
(b)(1)(C) as to each count are deleted and replaced with the 15-year minimum
term for parole eligibility pursuant to subdivision (b)(5) for each count. As so modified, the judgment is
affirmed. The trial court is directed to
amend the abstract of judgment accordingly and to send a certified copy of the
amended abstract of judgment to the Department
of Corrections and Rehabilitation.





>WOODS, J.



We concur:





PERLUSS, P. J. JACKSON,
J.