P. v. Abeica

Filed 1/21/10 P. v. Abeica 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEALS from judgments of the Superior Court of Los Angeles County. Eleanor J. Hunter, Judge. Affirmed as modified.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Abeica.

Law Offices of John F. Schuck and John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant Angel Isarraras.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant David Negrete.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

________________________________

SUMMARY

Jorge Abeica, Angel Isarraras and David Negrete were convicted of two counts each of attempted murder, with gun and gang allegations found true. In connection with a separate incident, Abeica was also convicted of assault by means likely to cause great bodily injury. The trial court sentenced Abeica and Negrete to state prison for two consecutive life terms plus a consecutive term of 25 years to life plus a consecutive term of 20 years (with Abeicas sentence relating to the separate incident to run concurrently); Isarraras was sentenced to state prison for two consecutive life terms plus two consecutive terms of 25 years to life for the firearm enhancements. The three appeal, claiming numerous procedural, evidentiary and instructional errors. Except to the extent the abstracts of judgment must be corrected, none of the claims raised in these appeals has merit and we otherwise affirm.

FACTUAL AND PROCEDURAL SYNOPSIS

On January 5, 2008, at about 3:30 p.m., Angel Rueda was talking on his Sidekick 3 cell phone as he walked down the street in Lynwood. Jorge Abeica got out of the passenger side of a green Expedition that pulled up next to Rueda. Rueda saw four other males in the car. Abeica asked Rueda where he was from. Rueda understood he was being asked about his gang relations and did not want any problems so he ignored Abeicas question and kept walking. He tried to cross the street and started running. Abeica chased after Rueda and Rueda fell, dropping his phone. Abeica hit Rueda three times in the head with his fist, picked something up which Rueda believed to be his cell phone and ran back to the car. Rueda got up and ran to a nearby house and a woman there called the police.

Los Angeles Sheriffs Deputy Brian Tolmasoff responded to the call within 10 minutes. Abeica was detained along with several other Banning Street and Paragon gang members. Abeica said he was an active Banning Street gang member known as Dollar. In a field showup with about five people sitting on the sidewalk, Rueda identified Abeica as his attacker and identified the phone found in the green Expedition at the location as his. Ruedas ear was swollen after the attack.

Less than three weeks later, on January 23, at about 3:00 p.m., Abeica, Angel Isarraras, David Negrete and Miriam Simental were at a gas station on the corner of Long Beach Boulevard and Magnolia Street in Lynwood, putting gas in Isarrarass mothers black Trail Blazer. Simental had spent the day with Abeica, her ex-boyfriend, at a motel; Isarraras and Negrete had picked them up to give Simental a ride home.

Deryon Williams and Kevin Carr were walking toward the gas station where Negrete and Isarraras stood beside the SUV. Williams asked Isarraras for 50 cents. Neither he nor Carr threatened the others in any way. Isarraras said, What the Lynwood Paragon life like? Isarraras was wearing a hat with a P on it which members of the Paragon gang would wear. When Williams said he didnt know, Negrete also claimed LVP. Williams asked again for 50 cents, and Negrete responded by repeating Isarrarass question about Lynwood Varrio Paragon. Carr told Williams he knew some Santana Blocks. Carr associate[d] with some Santana Block gang members, but neither Williams nor Carr were members of the gang. Williams had a feeling something was going to happen and placed his right hand by his waistband to suggest he had a gun. Neither he nor Carr ever pulled a gun.

Simental heard Isarraras and Negrete arguing with Williams and Carr about territory or gang related stuff. Someone said, [Y]oure in the wrong area, wrong neighborhood, and someone else said, No, if anything, this is my neighborhood. Abeica said, Oh, lets fuck them up. He approached and claimed Banning Street. Williams and Carr walked away.

Abeica, Isarraras and Negrete got back into the SUV and drove off, with Abeica driving, Simental in the front passenger seat and Isarraras and Negrete in the back seat. Simental did not know Isarraras and Negrete. She heard someone say, Lets go get the strap, slang for gun, and someone replied, Its at my house. Without anyone providing directions, Abeica drove to an apartment complex on El Segundo Boulevard. Negrete got out, entered the complex and returned to the back seat within five minutes, saying, Yeah, I got it.

Abeica continued driving until one of the men said, There they are. One said, Lets drive by, and another one said, No, just stop the car. Williams heard braking and looked to see the black SUV stopped in the middle of the street. He and Carr stopped for a moment. Isarraras and Negrete got out of the back and started shooting. Williams thought there were more than 20 shots; Simental heard more than 2 but less than 10. Williams and Carr ran, with Carr a little bit ahead of Williams, on his right.

Williams was hit with a bullet as he tried to run away and fell to the sidewalk. Carr dragged him to safety. Simental never saw or heard shots fired at the SUV, and when Isarraras and Negrete got back in the car, they never said anything about being shot at. Abeica said, Lets take her home. Someone else said, Lets take the gun back. They returned to the El Segundo Boulevard apartment complex and dropped off the gun. On the way to Simentals home, they were pulled over by the police, about a mile and a half from the crime scene. Abeica was driving, Negrete was in the rear drivers side seat, and Isarraras was in the rear passenger side seat.

Later that day, police executed a search warrant at Negretes apartment on El Segundo (within a mile of where the shooting occurred) and recovered a Colt revolver. Two expended bullet slugs were collected at the scene of the shooting.

Abeica, Negrete and Isarraras were charged with two counts of attempted murder (Pen. Code, 187, 664 [all undesignated statutory references are to the Penal Code]; count 1 relating to Williams and count 2 relating to Carr), with allegations (among others) a principal had personally and intentionally discharged a firearm causing great bodily injury or death (12022.53, subds. (b), (c), (d)) and that the crimes were committed in association with, for the benefit of or at the direction of a criminal street gang ( 186.22, subd. (b)(1). In addition, Abeica was charged with assault by means likely to produce great bodily injury in connection with the separate incident involving Rueda ( 245, subd. (a)(1); count 3), along with a gang allegation as to this count ( 186.22, subd. (b)(1)). (A robbery count ( 211; count 4 involving Rueda) was dismissed.)

At trial, the People presented evidence of the facts summarized above. In addition, ballistics testing confirmed that the two slugs found at the shooting scene were fired from the Colt revolver found in Negretes apartment. Dr. Tchaka Shepard testified Williams suffered two gunshot woundsone to the right buttocks just above the pelvis and one to the left hemiscrotumapparently caused by a single gunshot. The resulting small fracture to his pelvis caused Williams to limp at the time of trial.

Deputy Gerald Groenow testified as a gang expert. He had been a peace officer for 20 years. He had received gang training at the academy, worked on gang identification in the jail, and investigated hundreds of crimes involving gang members during his time on patrol. He had arrested hundreds of gang members for crimes involving gangs, worked on a gang enforcement team in the Compton and Century areas and was part of a multi-agency task force in the Compton-Lynwood area. In the preceding three years, he dealt primarily with the Lynwood gangs and came into contact with gang members on a daily basis. He spoke with the gangs and with detectives about problems between Lynwood and Compton.

The shooting occurred within the turf claimed by Paragon and Banning Street. Paragon had about 70 documented members; Banning Street had 50 to 60 members. The Paragon and Banning Street gangs had joined together as the Crime Mafia Family. Santana Block was a rival gang of Paragon, and Santana Blocks area was within a mile of the shooting scene. Gangs were concerned with turf and did not want others coming into their territory. Newer members had to put in work, meaning committing shootings and robberies to stand up for the gang and move up within it. Gang members usually committed their crimes with other gang members. The primary activities of Paragon and Banning Street included vandalism, robberies, shootings, assaults and murders.

Within the preceding two years, Deputy Groenow testified, Crime Mafia Family member Francisco Meza had a sustained juvenile petition for minor in possession of a firearm; Banning Street member Alvie Mendiola had a sustained petition for minor in possession of a firearm; and Paragon member Edward Lara was convicted of criminal threats.

Isarraras had admitted he was a Paragon gang member known as Little Bear and had several tattoos including Paragons LVPGS on his back. Negrete admitted he had been a Banning Street member for two years, was known as Ghost, and had BNG tattooed on the back of his neck. At the time of the assault on Rueda, Abeica was arrested in the company of numerous Paragon and Banning Street members and admitted membership in Banning Street to several deputies and said he was known as Dollar.

Deputy Groenow opined the shootings were committed for the benefit of Paragon, Banning Street and Crime Mafia Family. Gangs thrive on fear and intimidation which make it easier to commit crimes because people are less likely to testify against them. Further, the circumstances of the case involved disrespect to Isarraras, Negrete and Abeica such that they and their gangs would be perceived as weak if they did not take action against such disrespect. They were newer guys and had to retaliate which they did by putting in work; they got a gun, came back and took care of business. Putting in work also made them look good to other gangs in the area, communicating you dont want to mess with Banning and Paragons; theyre willing to shoot people if they get disrespected. Similarly, he said, the attack on Rueda was committed for the benefit of or in association with the Banning Street, Paragon or Crime Mafia Family gangs. As Abeica was new to his gang, he needed to put in work. By attacking Rueda, he showed other gang members he was willing to do what needed to be done to gain respect.

Isarraras testified in his own defense. He said Williams and Carr banged on [him] at the gas station because he was wearing a P hat to show he was a proud Paragon gang member, broadcasting . . . this is my hood. The man who said Santana Block pulled out a gun so Isarraras could see it but did not point the gun at anyone. Isarraras testified he had been shot three times before and was traumatized. The conversation got a little heated. Williams told Isarraras he would see him later, catch [him] on the rebound. Isarraras thought this meant its not going to be no nothing nice [sic] . . . . Then Williams and Carr walked away, and Isarraras and Negrete got back in the car.

Isarraras said his plan was to pick up his mother after taking Simental home, like 30 minutes later, but his mother would be waiting at a bus stop near Santana Block territory. When someone said, Lets go get the strap, Negrete said it was at his house. Abeica drove to Negretes apartment and Negrete retrieved the gun. Isarraras told Negrete to give him the gun which Negrete did. Isarraras said he understood part of being in a gang was kill[ing] people, but he just wanted to protect himself.

On the way to take Simental home, he said, he heard a sound like gunshots or fireworks. When he looked back, he saw the two men from Santana Block and one was shooting at the car. The car was going 10 or 15 miles per hour, but Isarraras had a gut feeling and jumped out. So did Negrete. In fear for his life, Isarraras said, he shot back about three times. Negrete screamed out his hood, where he was fromBanning Street. The man shooting at Isarraras stopped shooting, he and Negrete got back in the car and Abeica drove off. After they took the gun back to Negretes apartment, police stopped them.

After Isarraras was arrested, a few hours after the shooting, Isarraras told Deputy Groenow he did not know anything and denied shooting anyone; he did not say he had been shot at or that he was trying to protect himself. Later, he said he had shot in self-defense at the gas station, but that was not true.

In addition, Isarraras presented testimony regarding Williams. More particularly, Ramon Avalos Hernandez testified that he was on a train on June 9 or 10, 2008, when five men boarded and started making fun of his height, calling him a stupid Mexican and ignorant illegal, because he would not give them the $15 he needed to buy lunch at work. One of the attackers was more aggressive and told the others to jump on Hernandez. Hernandez ran out at a stop, but one of the men hit him, he fell down and felt a hard kick in his back as someone said, You fucking Mexican. The parties stipulated the more aggressive attacker was Williams.

Similarly, on June 10, 2008, at about 11:45 p.m., Marcos Zepeda was sitting on a Metro station bench listening to his MP3 player with earphones in his ears. Williams, about 16 to 18 years old, sat down beside Zepeda and started looking in his bag. Two others joined Williams. Zepeda was uncomfortable and stood up. Williams had a pair of shoes tied together and hit Zepeda with one of the shoes. The three followed Zepeda downstairs. Williams grabbed Zepedas hood. Another person tried to get Zepedas headphones and, after he handed them over, punched him in the eye causing a black eye.

Negrete did not present any evidence in his defense.

Abeica presented photographs of the streets around the shooting.

The jury found Abeica, Isarraras and Negrete guilty on all counts and found true all special allegations.

The trial court sentenced Isarraras to state prison for two consecutive terms of life on counts 1 and 2, plus two consecutive terms of 25 years to life for the firearm enhancements ( 12022.53, subd. (d)), with the sentences for the remaining enhancements stayed. Abeica and Negrete were each sentenced to state prison for two consecutive terms of life on counts 1 and 2, plus a consecutive term of 25 years to life for the firearm enhancement as to count 1 ( 12022.53, subd. (d)), plus a consecutive term of 20 years for the firearm enhancement relating to count 2 ( 12022.53, subd. (c)). Abeicas sentence on count 3 (the three-year midterm for aggravated assault plus the three-year midterm for the gang enhancement ( 186.22) was ordered to run concurrently.

DISCUSSION^[1]

I. Appellants Have Failed to Demonstrate Prejudicial Error in Connection with the Discovery of Williamss Pending Juvenile Case or his Subsequent Invocation of his Fifth Amendment Rights.

Just before opening statements on September 12, 2008 (a Friday), the prosecutor advised the court she had erroneously informed defense counsel the day before that Williams had a sustained juvenile petition for robbery, but the case was actually still pending so she argued defense counsel should not be allowed to discuss the matter. Although counsel Isarraras and Negrete submitted, Abeicas counsel argued the conduct involved moral turpitude so it was a proper area of inquiry even if Williams was likely to invoke his Fifth Amendment right to remain silent. The court indicated Williams would not be permitted to invoke his Fifth Amendment right in front of the jury, but indicated defense counsel could prove it up.

Abeicas counsel said they were not ready to do so as they had not been given discovery. Isarrarass counsel noted [i]ts just a police report, and suggested the matter could be solved if defense counsel received the report. The prosecutor agreed to provide the police report. Williams then testified after the prosecutions opening statement.

The following Monday, the prosecution provided defense counsel with two police reports; although there was one pending case, it involved two robberies on or about June 10, 2008. Defense counsel indicated they had not learned of the juvenile case until September 10; the prosecutor said she thought the defense already knew about Williamss arrest. The court rejected this explanation: Its your responsibility. [Y]ou have to tell them. How are they going to know something like that? After inquiring what defense counsel proposed, the court expressed the inclination to allow the defense to present witnesses to Williamss robberies as requested. The prosecutor agreed to take the necessary steps to bring the witnesses to court. The prosecution rested that afternoon.

When the court asked about defense witnesses, Isarrarass counsel said he wanted to call Williamss two robbery victims, but the prosecutor said she had been unable to reach them. Abeica and Negrete had no witnesses. Noting the circumstances meant another early day, the court directed the prosecutor: [Y]ou need to find these witnesses. If not, then Ill go ahead and grant [a mistrial], unless the defense did not want one for tactical reasons.

The following morning, Isarrarass counsel told the court his client might testify to self-defense such that Williamss prior acts were relevant to that defense as well as impeachment. The court rejected the Evidence Code section 1103 argument, and the prosecutor submitted on the theory of moral conduct.

The prosecutor had located one of the victims involved in Williamss pending case in custody (Avalos Hernandez) and the other victim had been subpoenaed and was available to testify that day (Zepeda); she also had a videotape of one or both of the alleged robberies. She had been unable to locate other witnesses. Defense counsel moved for a mistrial. Negrete said at least a couple of witnesses had identified Williams as the one carrying the shoes (in the incident involving Zepeda). The court asked whether the prosecutor would agree to stipulate to such testimony if the other witnesses could not be located, and she said, Possibly, yes. The court indicated the testimony would be limited probably to one witness per. Negretes counsel said, As long as the ID is [in].

Outside the presence of the jury, defense counsel questioned Zepeda, and the court found his testimony admissible as evidence of moral turpitude conduct. In response to the courts inquiry, the prosecutor agreed to a stipulation Williams was the person with shoes identified in the incident, and defense counsel agreed to accept the stipulation which the court noted would establish the robbery and thus the moral turpitude conduct. The jury then heard Zepedas testimony along with the stipulation Williams--who had testified earlier in the trial--was identified as the person who hit Zepeda with the shoe, held him by the collar of his jacket and participated in the crime.

Outside the presence of the jury, Williams was called to testify but when asked about the two robberies, invoked his Fifth Amendment rights on the advice of counsel. Defense counsel then moved to strike Williamss prior testimony. The trial court denied the motion to strike the entirety of Williamss testimonythe ultimate sanction in a situation like this. The court commented the robbery evidence had been presented through the victims testimony and stipulation which impeach[ed] the witness for moral turpitude conduct, but was not the central issue in this case by way of the facts. Although credibility is important, the court found it unnecessary to strike the testimony under these particular circumstances.

The next day, in front of the jury, Avalos Hernandez testified Williams had tried to rob him, and the parties stipulated Williams was the person who attacked Avalos Hernandez and he had identified Williams to police. Outside the jurys presence, Negretes counsel argued Williams had waived his Fifth Amendment rights, but the court rejected this argument as Williams had been compelled by subpoena to testify. The court commented the defense had been able to attack Williamss credibility with two witnesses, and the prosecution had stipulated to Williamss involvement in both incidents. [B]ased on all of that, I dont believe its necessary to strike [Williamss] testimony because I do believe [the defendants] had a right to challenge the credibility of that witness.

Then, as promised, the trial court instructed the jury as follows: Both the People and the defense must disclose their evidence to the other side before trial within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [] The attorney for the People failed to disclose to the defense before the beginning of this trial that Deryon Williams had two pending robbery cases in juvenile court against him. In evaluating the weight and significance of that evidence, you may consider the effect, if any, of the late disclosure.

A. The Trial Court Did Not Abuse Its Discretion in Denying the Motions to Strike Williamss Testimony and for Mistrial.

We review the trial courts decision whether to strike a witnesss testimony for an abuse of discretion. (People v. Price (1991) 1 Cal.4th 324, 421.) As the trial court observed, Striking a witnesss entire testimony is, of course, a drastic solution, only to be employed after less severe means are considered. [Citations.] (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 736.) As the trial court observed, defense counsel had the opportunity to cross-examine Williams at length in connection with the gas station incident and subsequent shooting, so cross-examination was not precluded, but rather impaired or limited. The jury also had the opportunity to assess Williamss demeanor on direct as well as cross-examination, and defense counsel impeached Williamss credibility through the testimony of the victims in the pending juvenile case and stipulations. We find no abuse of discretion. (People v. Daggett (1990) 225 Cal.App.3d 751, 760; People v. Woodberry (1970) 10 Cal.App.3d 695, 707-709.)

Similarly, we review the trial courts denial of a motion for mistrial for an abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 953, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Mistrial motions should be granted only if the court is apprised of prejudice that it judges incurable by admonition or instruction. (Ibid., citing People v. Jenkins (2000) 22 Cal.4th 900, 985-986.) Again, in light of the circumstances, including Williamss cross-examination on the shooting involving the appellants plus the victims testimony and stipulations establishing Williamss participation in the separate robbery and attempted robbery, we find no abuse of discretion in the trial courts denial of the motion for mistrial.

B. We Find No Confrontation Clause Violation.

A party does not have the right to call a witness for the purpose of having that witness invoke his Fifth Amendment rights in front of the jury; because no inference may be drawn from the invocation, such evidence is irrelevant. (People v. Holloway (2004) 33 Cal.4th 96, 129-132; People v. Mincey (1992) 2 Cal.4th 408, 440-442.) Outside the jurys presence, Williams was questioned about the incidents involved in his pending juvenile case, and he invoked his Fifth Amendment rights. Appellants were not deprived of their Sixth Amendment rights. (Ibid.)

C. We Find No Brady Violation under the Circumstances of this Case.

Under Brady v. Maryland (1963) 373 U.S. 83, 87, the prosecution has a duty to disclose evidence that is both favorable and material on guilt. [E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. (United States v. Bagley (1985) 473 U.S. 667, 682, 685; In re Sassounian (1995) 9 Cal.4th 535, 544.) Here, though disclosure was late, the police reports were disclosed in time for the defense to make use of the informationthe two victims testified to Williamss conduct and the prosecution stipulated to Williamss involvement and identification in connection with these incidents. We find no error. (See People v. Wright (1985) 39 Cal.3d 576, 591.)

D. Appellants Were Not Deprived of their Right to Present a Defense.

To the extent appellants claim in this regard is premised on Williamss invocation of his Fifth Amendment rights or the late disclosure relating to Williamss pending juvenile case, these arguments are addressed in the preceding sections. To the extent appellants object they were unable to present further evidence of Williamss prior conduct, in light of the scope of the stipulations and victim testimony presented, the trial court acted within its discretion in limiting the testimony to one witness (each victim) per incident. (Evid. Code, 352; People v. Ayala (2000) 24 Cal.4th 243, 282.)

II. We Reject Appellants Claim of Cumulative Error.

Because we find no merit to the preceding arguments, appellants claim of cumulative error necessarily fails. (People v. Phillips (2000) 22 Cal.4th 226, 244.)

III. Appellants Convictions for Attempted Murder in Count 2 Are Supported by Substantial Evidence of Appellants Intent to Kill Carr.

We reject appellants claim there is insufficient evidence of the specific intent to kill Carr. [T]he fact [a defendant] desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what [the court in Ford v. State (1993) 330 Md. 682 [652 A.2d 984]] termed the kill zone. (People v. Bland (2002) 28 Cal.4th 313, 329; and see People v. Smith (2005) 37 Cal.4th 733, 741 [jury could find defendant who fired a single shot intended to kill two victims where both were in the line of fire].) The record not only supports the inference that the intent was to kill both Williams and Carr in light of the evidence of gang rivalry and the heated incident at the gas station (including Carrs mention of Santana Block, a rival gang), but also that Carr was in the kill zone. Isarraras admitted firing the gun three times at a distance of about 24 feet. Williams and Carr, who had been walking together, ran [s]traight up the sidewalk, with Carr a little bit ahead of Williams, to his right, when Isarraras began shooting. Appellants convictions on count 2 are supported by substantial evidence.

IV. The Gang Enhancements Are Supported by Substantial Evidence.

According to the appellants, insufficient evidence supports the gang enhancements because (1) there was insufficient evidence appellants intended to promote criminal activity other than the crimes with which they were charged; (2) there was insufficient evidence of the gangs primary activities; and (3) as to Abeicas conviction on count 3, there was insufficient evidence this offense was committed for the benefit of a gang.

A.     There Is No Requirement that Appellants Intended to Promote Gang Activity Other than the Crimes with which They Were Charged.

According to appellants, under Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, section 186.22, subdivision (b), requires a showing of specific intent to promote gang activity other than the charged crimes. We disagree. As stated in People v. Romero (2006) 140 Cal.App.4th 15, 19, and People v. Hill (2006) 142 Cal.App.4th 770, 774, By its plain language, the statute requires a showing of specific intent to promote, further, or assist in any criminal conduct by gang members, rather than other criminal conduct. ( 186.22, subd. (b)(1), italics added.) There is no requirement in section 186.22, subdivision (b), that the defendants intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits. To the contrary, the specific intent required by the statute is to promote, further, or assist in any criminal conduct by gang members. (Pen. Code, 186.22, subd. (b), italics added.) (People v. Hill, supra, 142 Cal.App.4th at p. 774.) Therefore, appellants own criminal conduct qualified as the requisite gang-related criminal activity. No further evidence on this element was necessary. (Ibid.)

B.    There Was Sufficient Evidence of the Gangs Primary Activities.

Subdivision (f) of section 186.22 defines a criminal street gang as any organization, association or group of three or more that has as one of its primary activities the commission of one or more of the criminal acts enumerated in the gang enhancement statute. Subdivision (e) defines a pattern of criminal gang activity as the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the [enumerated] offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.

Deputy Groenow testified that the Crime Mafia Family included both the Banning Street and Paragon gangs. He identified three other crimes committed by members of these gangs. In addition, the appellants offenses occurred on two separate occasions, and Deputy Groenow further testified the attempted murder and Abeicas assault were committed for the gangs benefit. The specified crimes were among the offenses enumerated in the gang statute and occurred on five separate occasions within a 17-month period. ( 186.22, subd.(e)(1), (3), (23), (24), (31), (33).) Deputy Groenow also testified the primary activities of both Paragon and Banning Street range[d] from vandalism where theyre writing on the walls, to robberies, to shootings, [to] assaults, to murder, and newer members, like appellants, had to put in work, which meant committing robberies, shootings and otherwise standing up for their gang. ( 186.22, subds. (e)(1), (2), (3), (5), (6), (20).)

Deputy Groenow explained the extent of his knowledge, training and experience dealing with Lynwood gangs and working on the multi-agency task force in the Lynwood-Compton area and testified at length as to the basis for his knowledge of these gangs and their prior crimes. The same foundation problems identified in In re Alexander L. (2007) 149 Cal.App.4th 605, on which appellants rely, are not present here; the evidence was sufficient. (People v. Vy (2004) 122 Cal.App.4th 1209.)

C.    There Was Sufficient Evidence Appellants Committed Their Crimes for the Benefit of or in Association with a Gang.

According to Abeica, insufficient evidence supports the conclusion his assault on Rueda (count 3) was committed for the benefit of or in association with a gang. According to the record, Abeica asked Rueda about his gang relations before attacking him, and he (Abeica) was arrested in the company of several Banning Street and Paragon members shortly after the attack on Rueda (and Ruedas cell phone was found in the nearby Expedition which had pulled up beside Rueda with several other men in the car). Abeica was a Banning Street gang member, and he had admitted this fact on multiple occasions. Simental, his girlfriend for two years, also testified Abeica was a gang member. Because Abeica was a newer gang member, Deputy Groenow testified, he needed to put in work by committing crimes which would earn his gang respect. Based on the circumstances, he opined that this crime was committed for the benefit of or in association with a criminal street gang. The evidence was sufficient. (People v. Olguin (1994) 31 Cal.App.4th 1355.)

V. Abeica Has Failed to Demonstrate Prejudicial Error Relating to His Admission of Gang Membership.

Abeica says his response to Deputy Tolmasoff that he was an active Banning Street gang member should have been suppressed as a violation of Miranda v. Arizona (1966) 384 U.S. 436, because he was in custody at the time. Even assuming arguendo a Miranda violation in this instance, the admission of this statement was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Williams testified Abeica claimed Banning Street in the incident at the gas station. Simental, who was Abeicas girlfriend for two years and with whom he continued to hang out, testified Abeica was a gang member. Rueda testified Abeica asked him where he was from, meaning gang relations. In addition to Deputy Tolmasoff, Abeica admitted to Deputy Groenow and other deputies he was a Banning Street member. Given the overwhelming evidence of Abeicas gang membership, he cannot establish prejudice in any event. (Ibid.)

VI. Abeica Has Failed to Demonstrate Prejudicial Error in the Absence of a Jury Instruction on Simple Assault.

The jury found Abeica guilty of assault by means likely to produce great bodily injury for his attack on Rueda (count 3). ( 245, subd. (a)(1).) Because commission of this crime requires an assault, Abeica says, the trial court erred in failing to instruct the jury on simple assault as a lesser included offense. We disagree.

The trial court must instruct on a lesser included offense only when there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. [Citations.] (People v. Blair (2005) 36 Cal.4th 686, 745.) Because the statutes focus is on the force likely to produce great bodily injury, whether the victim actually suffers harm is immaterial. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) Great bodily injury means an injury greater than minor or moderate harm. It is not a trivial injury. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.)

According to the record, Rueda fell as he ran, attempting to cross the street to get away from Abeica. While Rueda was down on the ground, Abeica hit Rueda in the head three times with his fist (with sufficient force to cause his ear to swell). On this record, the evidence necessarily indicates force likely to produce great bodily injury; simple assault was not supported by the evidence. (People v. Berry (1976) 18 Cal.3d 509, 519.) Moreover, on this record, even assuming error, it is not reasonably probable Abeica would have obtained a better result had the trial court given an instruction on simple assault. (People v. Breverman (1998) 19 Cal.4th 142, 178.)

VII. Abeicas Abstract of Judgment Should Be Corrected to Reflect His Concurrent Sentence on Count 3.

As stated in the reporters transcript, the trial court ordered Abeicas sentence on count 3 to run concurrently with the terms imposed on counts 1 and 2. Because the abstract of judgment incorrectly states the sentence is to run consecutively, Abeica argues, the Attorney General concedes and we agree that the abstract of judgment should be amended to state Abeicas sentence on count 3 is to run concurrently with his sentence on counts 1 and 2. (People v. Farrell (2002) 28 Cal.4th 381, 384, fn. 2 [oral pronouncement prevails in conflict with court minutes].)

VIII. Appellants Have Failed to Demonstrate Instructional Error Regarding the Specific Intent Required for Attempted Murder and Were Not Prejudiced in any Event.

In appellants view, the jury instructions given in this case permitted the jury to render a verdict without determining all material elements and factshere, appellant[s] specific intent to kill Williams and Carr . . . . We disagree.

[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury. [Citation.] (People v. Holt (1997) 15 Cal.4th 619, 677.) Here, the trial court instructed the jury with CALCRIM 252 which informed the jury the charged crimes required a union of intent and act; attempted murder required specific intent; to find a defendant guilty of a specific intent crime, the defendant must not only intentionally commit the prohibited act, but must do so with specific intent; and the specific intent required is explained in the instructions for that crime . . . .

Further, the trial court gave CALCRIM 600 as follows: The defendants are charged in Count I and II with attempted murder. [] To prove the defendant guilty of attempted murder, the People must provide that: [] Number one, the defendant took at least one direct but ineffectual step towards killing another person; and two, the defendant intended to kill that person. [] A direct step requires . . . more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder.

A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside of the plan had not interrupted the attempt.

A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he abandons further efforts to complete the crime, or his . . . attempt fails or is interrupted by someone or something beyond his control. [] On the other hand, if a person freely and voluntarily abandons his plan before taking a direct step toward committing the murder, that person is not guilty of attempted murder.  [] A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or []kill zone.[] In order to convict the defendant of the attempted murder of Kevin Carr, the People must prove that the defendant not only intended to kill Deryon Williams but also either intended to kill Kevin Carr or intended to kill anyone within that []kill zone.[] If you have a reasonable doubt whether the defendant intended to kill Kevin Carr or intended to kill Deryon Williams by killing everyone in the []kill zone,[] then you must find the defendant not guilty of the attempted murder of Kevin Carr.

The kill zone portion of CALCRIM 600 properly instructed the jury of the need to find the specific intent to kill. (People v. Bragg (2008) 161 Cal.App.4th 1385, 1395; People v. Campos(2007) 156 Cal.App.4th 1228, 1243.) In addition to the repeated emphasis of the specific intent requirement in the instructions given, the prosecutors as well as defense counsels closing arguments stressed the requirement, arguing for example, if you . . . dont think they intended to kill, then you put not guilty on the verdict form, and [u]nless . . . its been proven to you beyond a reasonable doubt[--]the intent to kill, you cannot return a verdict of guilty. On this record, there is no reasonable likelihood the jury would have understand the instructions to authorize a guilty verdict in the absence of a specific intent to kill. (See People v. Turner (2004) 34 Cal.4th 406, 423.) Further, given the jurys further findings as well as the evidence, including Isarrarass own testimony, appellants cannot establish prejudice in any event. (See People v. Bolden (2002) 29 Cal.4th 515, 561.)

IX. The Great Bodily Injury Enhancements Relating to Count 2 Are Properly Stricken.

The jury found true the allegations appellants inflicted great bodily injury ( 12022.7, subd. (a)) and discharged a firearm that inflicted great bodily injury or death ( 12022.53, subd. (d)) in connection with count 2 (the attempted murder of Carr). At sentencing, Negretes counsel noted the absence of evidence Carr had sustained injury. The trial court had also noticed the discrepancy and said, I will go ahead and grant your motion with regard to that. There was no evidence that the second victim sustained any injury at all. However, the abstract of judgment includes these enhancements.

Appellants contend and the Attorney General agrees the great bodily injury enhancements relating to count 2 should be stricken. As to count 2 only, the abstracts of judgment should be amended to strike the sentences for enhancements under section 12022.7, subdivision (a), and section 12022.53, subdivision (d). For Abeica and Negrete, the sentences for these enhancements were stayed so there is no effect on their sentences overall. However, for Isarraras, the trial court imposed a sentence of 25 years to life for the firearm enhancement. Therefore, his sentence should be modified to lift the stay for the lesser enhancement under section 12022.53, subdivision (c), and specifying a sentence of 20 years for that enhancement. ( 1260.)

DISPOSITION

As to Abeica, Isarraras and Negrete, the judgments are modified as to count 2 only by striking the enhancements under section 12022.7, subdivision (a), and section 12022.53, subdivision (d); as to Isarraras, the judgment is further modified as to count 2 only to reflect a consecutive sentence of 20 years for the enhancement under section 12022.53, subdivision (c). Abeicas judgment is modified to specify that the sentence on count 3 is to run concurrently. The clerk of the superior court is directed to prepare corrected abstracts of judgment and to forward certified copies of these corrected abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.

WOODS, Acting P. J.

We concur:

ZELON, J.

JACKSON, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] Each appellant joins in the arguments of the other appellants to the extent the arguments apply to each of them.