P. v. Iniguez

Filed 2/19/10 P. v. Iniguez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

FRANCISCO INIGUEZ et al.,

Defendants and Appellants.

F056105

(Super. Ct. Nos. BF104147A & BF104147C)

OPINION

APPEALS from judgments of the Superior Court of Kern County. Gary T. Friedman, Judge.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Francisco Iniguez.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant Jesus De Leon.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Dustin Garnett agreed to sell marijuana to Francisco Iniguez. Garnett went with his friend Christopher Stoner to a motel room where, he was told, the deal was to go down. Instead, Iniguez, Jesus De Leon, and others kidnapped Garnett and Stoner and, on a remote frontage road in the middle of the night, fired shots at Stoner, killing him, and at Garnett, hitting him in the hand. Garnett fell to the ground, put his bloody hand over his head, and played dead. Something cold and round touched the back of his head. Then he heard someone say, [T]heyre dead, dont shoot any more. Lets not make any more noise. Leaving Stoner dead and Garnett for dead, everyone else drove away.

A jury found Iniguez and De Leon guilty of, inter alia, first degree special circumstance murder of Stoner, attempted willful, deliberate, and premeditated murder of Garnett, kidnapping of both to commit robbery, robbery of both, and conspiracy to kidnap both. Additionally, the jury found allegations true of, inter alia, personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death and commission of the crimes to benefit a criminal street gang.

The court sentenced Iniguez and De Leon to, inter alia, life without the possibility of parole plus three terms of life with the possibility of parole plus 100 years to life. On appeal, they argue insufficiency of the evidence and instructional and sentencing issues. We reject the insufficiency of the evidence and the instruction arguments. With reference to the sentencing arguments, we modify the judgment to strike the criminal-street-gang enhancements from the murder, attempted murder, kidnapping, and robbery counts and to stay both kidnapping counts and the weapon enhancements in the latter two counts. Otherwise we affirm the judgment.

FACTUAL BACKGROUND

Maybe between eight and 10 times, Garnett sold marijuana to Iniguez, whom Garnett met through his cousin Paul Evangelista, who called Iniguez his friend. Garnett was not a gang member. Garnett knew that Evangelista associated with the Northwest gang or the Evans Park gang in Santa Maria.^{^[1]} He did not know whether Iniguez associated with a gang.

On October 12, 2003, Iniguez asked Garnett to meet him at a motel in Santa Maria to sell him some more marijuana. Garnett arrived there just after dark with his friend Stoner and went into a motel room with a small bag of marijuana as Stoner waited for him in Garnetts pickup truck. Inside the room, Iniguez introduced Garnett to Jesus De Leon and Steve Alvarez. After a brief conversation, Garnett poked his head out of the room and waved Stoner inside. Stoner brought a suitcase containing two larger bags of marijuana into the room.

After Iniguez, De Leon, and Alvarez talked with Garnett for a few minutes about quality, quantity, and price, Iniguez put Garnett into a headlock. At first, Garnett thought Iniguez was joking, but as he brought his head up he saw De Leon and Alvarez pointing guns at Stoner and him. Iniguez, De Leon, and Alvarez bound Garnetts and Stoners hands and feet with rags, took cell phones, wallets, and everything else of value at gunpoint from their pockets, and told them this isnt all the money you have and all the weed that you have. For about five minutes, Iniguez, De Leon, and Alvarez pushed, shoved, and slapped them, insistently asking where more money and more marijuana were. Alvarez hit Stoner above the eyebrow with the butt of his gun, knocking him to the floor.

Iniguez, De Leon, and Alvarez walked Garnett and Stoner into the bathroom, slammed them down on the floor, and gagged them with socks stuffed into and rags tied around their mouths. For about the next two hours, Iniguez, De Leon, and Alvarez took turns checking on them in the bathroom. Then, saying it was time to go, Iniguez pulled them out of the bathroom into the motel room, where two additional men, Reyes Escobedo and Julian Santiago, were present. Santiago gave Garnett lengthy instructions for a trip everyone was about to make to Bakersfield. After being completely untied, Garnett was to walk out of the motel room and not run away, was to do nothing to bring attention to him, and was to drive in his truck while Stoner was to ride in their car for security.

Garnett had been to Santiagos house a few times. Even though he considered Santiago a dangerous gang member deeply involved with crystal meth, he had gone to his house anyway because his cousin Evangelista had always been with him. He had seen guns laying around at Santiagos house and had at least heard of the things he had done before. In the motel room, Santiago told Garnett not to go to the police because he knew Garnetts family and knew where they were.

At around midnight, Iniguez and Santiago, both of whom had revolvers, left the motel room with Garnett and got into his truck, which he drove. Escobedo left the motel room with Stoner, De Leon, and Alvarez and got into a sedan that he drove behind Garnetts truck.

As instructed, Garnett drove for about three hours, got off the highway to get gas, and drove onto a frontage road near Bakersfield. Shortly after turning onto another road, Santiago told him to stop and to get into the sedan with everyone else so he and Stoner could be dropped off a mile or two away, giving everyone else time to get away as he and Stoner walked back to the truck. Once everyone was in the sedan, Escobedo drove to a construction site, where Garnett and Stoner got out of the car.

His back to the car, Garnett said to Stoner, who was facing the car, That its almost over, and then he saw Stoners face, white with fear, in a fixed stare at the car. He heard gunshots, turned his head, and saw Iniguez and Santiago on one side of the car, Alvarez and De Leon on the other side of the car, each with a gun in his hand, and all four seemed to be shooting. He saw Stoner hit and jerk and fall to the ground and heard something whiz by his own head.

Garnett ducked down forward, put his hands over his head, and pleaded for his life. When something hit his right hand, instinct took over. He lay still, playing dead, with his eyes closed and his right hand over his head. Something that felt like metal, cold and round, touched the back of his head, and someone said, [T]heyre dead, dont shoot anymore. Lets not make any more noise, and he no longer felt the object he thought was the barrel of a gun on the back of his head. After he heard them get into the car and heard the doors shut, he heard the car drive away.

PROCEDURAL BACKGROUND

On September 27, 2007, the district attorney filed an information charging Iniguez and De Leon with the same six felonies and charging Iniguez alone with a seventh felony:

Count 1 (Iniguez and De Leon): First degree willful, deliberate, and premeditated murder of Christopher Stoner (Pen. Code, 187, subd. (a), 189)^{^[2]}on October 13, 2003, with three special-circumstance allegations murder in the commission of a robbery ( 190.2, subd. (a)(17)(A)), murder in the commission of a kidnapping ( 190.2, subd. (a)(17)(B)), and murder by an active criminal-street-gang member to further the gangs activities ( 190.2, subd. (a)(22)) and with allegations of personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) and commission of the crime to benefit a criminal street gang ( 186.22, subd. (b)(1)(B));

Count 2 (Iniguez and De Leon): Attempted willful, deliberate, and premeditated murder of Dustin Garnett ( 187, subd. (a), 664, subd. (a)) on October 13, 2003, with allegations of personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) and commission of the crime to benefit a criminal street gang ( 186.22, subd. (b)(1)(B));

Count 3 (Iniguez and De Leon): Kidnapping of Christopher Stoner to commit robbery ( 209, subd. (b)(1)) between October 12, 2003, and October 13, 2003, with allegations of personal firearm use ( 12022.53, subd. (b)), personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) and commission of the crime to benefit a criminal street gang ( 186.22, subd. (b)(1)(B));

Count 4 (Iniguez and De Leon): Kidnapping of Dustin Garnett to commit robbery ( 209, subd. (b)(1)) between October 12, 2003, and October 13, 2003, with allegations of personal firearm use ( 12022.53, subd. (b)), personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) and commission of the crime to benefit a criminal street gang ( 186.22, subd. (b)(1)(B));

Count 5 (Iniguez and De Leon): First degree robbery of Christopher Stoner and Dustin Garnett in an inhabited dwelling ( 211, 212.5, subd. (a)) between October 12, 2003, and October 13, 2003, with allegations of personal firearm use ( 12022.53, subd. (b)), personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)), and commission of the crime to benefit a criminal street gang ( 186.22, subd. (b)(1)(B));

Count 6 (Iniguez and De Leon): Conspiracy to kidnap Christopher Stoner and Dustin Garnett ( 182, subd. (a)(1), 207) on October 12, 2003, with allegations of personal firearm use ( 12022.5, subd. (a)) and commission of the crime to benefit a criminal street gang ( 186.22, subd. (b)(1)(B));

Count 7 (Iniguez): Felon in possession of firearm ( 12021, subd. (a)(1)) on October 13, 2003. Additionally, all counts of the information contained two allegations of service of a prior prison term ( 667.5, subd. (b)).

On July 30, 2008, a jury found Iniguez and De Leon guilty as charged and found all allegations true as charged. At a bifurcated trial later that day, the court found both of Iniguezs prior-prison-term allegations true in every count.

On August 27, 2008, the court imposed an aggregate sentence on Iniguez of life without the possibility of parole plus three terms of life with the possibility of parole plus 100-years-to-life plus two years calculated as follows:

Count 1: Life without the possibility of parole for the special circumstances first degree willful, deliberate, and premeditated murder of Christopher Stoner ( 187, subd. (a), 189, 190.2, subds. (a)(17)(A)), (a)(17)(B)), (a)(22)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) plus a one-year enhancement for each of the two prison-term priors ( 667.5, subd. (b)) plus a 10-year criminal-street-gang enhancement ( 186.22, subd. (b)(1)(C)) with a stay of the criminal-street-gang enhancement (Cal. Rules of Court, rule 4.447);

Count 2: Life with the possibility of parole for the attempted willful, deliberate, and premeditated murder of Dustin Garnett ( 187, subd. (a), 664, subd. (a)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) plus a 10-year criminal-street-gang enhancement ( 186.22, subd. (b)(1)(C)) with a stay of the criminal-street-gang enhancement (Cal. Rules of Court, rule 4.447);

Count 3: Life with the possibility of parole for the kidnapping of Christopher Stoner to commit robbery ( 209, subd. (b)(1)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) plus a 10-year criminal-street-gang enhancement ( 186.22, subd. (b)(1)(C)) with a stay of the criminal-street-gang enhancement (Cal. Rules of Court, rule 4.447);

Count 4: Life with the possibility of parole for the kidnapping of Dustin Garnett to commit robbery ( 209, subd. (b)(1)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) plus a 10-year criminal-street-gang enhancement ( 186.22, subd. (b)(1)(C)) with a stay of the criminal-street-gang enhancement (Cal. Rules of Court, rule 4.447);

Count 5: Six years (the aggravated term) for the first degree robbery of Christopher Stoner and Dustin Garnett in an inhabited dwelling ( 211, 212.5, subd. (a), 213, subd. (a)(1)(B)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) with a stay on the robbery sentence and the firearm enhancement ( 654, subd. (a)) plus a five-year criminal-street-gang enhancement ( 186.22, subd. (b)(1)(B)) with a stay of the criminal-street-gang enhancement (Cal. Rules of Court, rule 4.447);

Count 6: Three years (the aggravated term) for conspiracy to kidnap Christopher Stoner and Dustin Garnett ( 182, subd. (a)(1), 207) plus 10 years (the aggravated term) for the personal-firearm-use enhancement ( 12022.5, subd. (a)) plus a five-year criminal-street-gang enhancement ( 186.22, subd. (b)(1)(B)) with stays on the conspiracy sentence and the firearm enhancement ( 654, subd. (a)) and on the criminal-street-gang enhancement (Cal. Rules of Court, rule 4.447); and

Count 7: Three years (the aggravated term) for felon in possession of firearm ( 12021, subd. (a)(1)) with a stay ( 654, subd. (a)).

Immediately afterward, the court imposed an aggregate sentence on De Leon of life without the possibility of parole plus three terms of life with the possibility of parole plus 100-years-to-life calculated as follows:

Count 1: Life without the possibility of parole for the special circumstances first degree willful, deliberate, and premeditated murder of Christopher Stoner ( 187, subd. (a), 189, 190.2, subds. (a)(17)(A)), (a)(17)(B)), (a)(22)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) plus a 10-year criminal-street-gang enhancement ( 186.22, subd. (b)(1)(C)) with a stay of the criminal-street-gang enhancement (Cal. Rules of Court, rule 4.447);

Count 2: Life with the possibility of parole for the attempted willful, deliberate, and premeditated murder of Dustin Garnett ( 187, subd. (a), 664, subd. (a)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) plus a 10-year criminal-street-gang enhancement ( 186.22, subd. (b)(1)(C) with a stay of the criminal-street-gang enhancement (Cal. Rules of Court, rule 4.447);

Count 3: Life with the possibility of parole for the kidnapping of Christopher Stoner to commit robbery ( 209, subd. (b)(1)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) plus a 10-year criminal-street-gang enhancement ( 186.22, subd. (b)(1)(C) with a stay of the criminal-street-gang enhancement (Cal. Rules of Court, rule 4.447);

Count 4: Life with the possibility of parole for the kidnapping of Dustin Garnett to commit robbery ( 209, subd. (b)(1)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) plus a 10-year criminal-street-gang enhancement ( 186.22, subd. (b)(1)(C) with a stay of the criminal-street-gang enhancement (Cal. Rules of Court, rule 4.447);

Count 5: Six years (the aggravated term) for the first degree robbery of Christopher Stoner and Dustin Garnett in an inhabited dwelling ( 211, 212.5, subd. (a), 213, subd. (a)(1)(B)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) plus a five-year criminal-street-gang enhancement ( 186.22, subd. (b)(1)(B)) with stays on the robbery sentence and the firearm enhancement ( 654, subd. (a)) and on the criminal-street-gang enhancement (Cal. Rules of Court, rule 4.447); and

ISSUES ON APPEAL

On appeal, Iniguez and De Leon argue insufficiency of the evidence of the criminal-street-gang enhancements and the criminal-street-gang special circumstance, challenge the criminal-street-gang enhancements, and argue that stays of both kidnapping sentences are necessary and that weapon enhancements on stayed counts should likewise be stayed. De Leon argues that instructional error on the criminal-street-gang enhancements tainted the true finding on the criminal-street-gang special circumstance. Other than to agree that weapon enhancements on stayed counts should likewise be stayed, the Attorney General opposes all of those arguments.

DISCUSSION

1. Criminal Street Gang Sufficiency of the Evidence

Iniguez and De Leon argue insufficiency of the evidence of criminal-street-gang enhancements and the criminal-street-gang special circumstance. The Attorney General argues the contrary.

Iniguez and De Leons challenge focuses on the requisite causal connection between the crimes at issue and the Northwest gang. The statute defining the criminal-street-gang enhancement provides disjunctively, in relevant part, that 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 by an additional term of five years. ( 186.22, subd. (b)(1) & (B), italics added.) The statute defining the criminal-street-gang special circumstance authorizes a sentence of life without possibility of parole if [t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang. ( 190.2, subd. (a)(22), italics added.) Iniguez and De Leon focus their challenge on the evidence required by the italicized portions of the two statutes.

Santa Maria Police Corporal Daniel Cohen was the prosecutions gang expert. He testified that on October 12, 2003, and October 13, 2003, the Northwest gang was a largely Hispanic criminal street gang that had 250 to 500 members and that associated with Southern Californias Sureo criminal street gang. Members of the gang had hundreds of convictions of a multitude of mostly violent crimes (murders, shootings, stabbings, carjackings, robberies, burglaries, vehicle theft, and narcotics sales) and, in light of high area unemployment, profiteering crimes ([r]obbery, vehicle theft, [s]elling narcotics, [b]urglaries of homes and vehicles, and thefts of car stereos), all of which constituted the gangs primary activities.

Testifying about predicate offenses committed by Northwest gang members, Cohen summarized the crimes of Israel Dominguez on August 30, 2001, Jesse Sanchez on October 24, 2001, and Manuel Sauceda on November 19, 2001. (Cf. 186.22, subd. (e).) All three were active Northwest gang members at the time of the commission of the crimes.

In the predicate offense of August 30, 2001, Dominguez committed, inter alia, attempted murder and assault with a deadly weapon. After his girlfriend told him she did not want to be with him anymore, he fired a shotgun at her through a closed window, striking her in the arm. Later, while hanging out with fellow Northwest gang members, he pointed a shotgun at the head of a rival gang member and pulled the trigger, but the weapon did not fire, after the windows of a Northwest gang members vehicle were smashed with a crowbar. Investigation showed that Dominguezs racking of the shotgun ejected the live casing that was in the chamber at the time.

In the predicate offense of October 24, 2001, Sanchez committed two kidnap carjackings. In both, his accomplice got into the front passenger seat of a car with the engine running and a man sitting in the drivers seat, ordered the man at gunpoint to drive to a remote location and to get out of the vehicle, and robbed him of his cell phone, car, and other belongings. In one, Sanchez rode in the back seat of the mans car. In the other, he followed his accomplice to the remote location in another vehicle. In one of the two kidnap carjackings, Sanchez and his accomplice both beat the driver at the remote location.

In the predicate offense of November 19, 2001, Sauceda committed possession for sale of a controlled substance. Officers with an outstanding warrant for his arrest found him hiding in a bathroom with crystal methamphetamine, a loaded firearm, paperwork showing narcotics sales, and a scale for measuring narcotics.

Cohen opined that both Iniguez and De Leon were active members of the Northwest gang. He based his opinions on jail classification records, on criminal histories, on gang tattoos, on the flashing of gang signs, and on field interview cards showing police contacts involving admissions of gang membership and associations with each other and with other Northwest gang members. He testified that Alvarez, too, was an active member of the Northwest gang but did not testify about whether Santiago or Escobedo were. A Santa Maria police officer working the gang unit testified about multiple personal contacts he had with Iniguez, De Leon, Alvarez, and Santiago but not Escobedo.

Fear and intimidation are important to the Northwest gang, Cohen testified. Since people who cooperate with law enforcement are frequently the victims of retaliation, the gangs brutal reputation dissuades the reporting of crimes committed by gang members. On the basis of a hypothetical about Northwest gang members who meet two young males in a Santa Maria motel room, take marijuana, money, and everything else of value from them, and drive them to Bakersfield, where they shoot them and leave them, Cohen opined those crimes would have been committed for the benefit of, at the direction of, or in association with the Northwest gang.

Specifically, Cohen testified that those crimes would benefit the Northwest gang by enabling illicit purchases of items like narcotics, firearms, and other weapons and lawful payments of expenses like car payments, groceries, and rent, by enhancing the gangs reputation for brutality and violence and in turn deterring witnesses from testifying against gang members, and by minimizing the possibility of apprehension by involving two jurisdictions in kidnappings and, if committed as intended, murders as to which there were to be no witnesses.

The law is settled that evidence of gang affiliation, including evidence of the gangs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like, is admissible to help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt . (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) On the briefing and the record, and in light of the disjunctive wording of the statute, there is a sufficiency of the evidence of the criminal-street-gang enhancement if, for example, Iniguez and De Leon committed a felony in association with a criminal street gang with the specific intent tofurther any criminal conduct by gang members. ( 186.22, subd. (b)(1)(B).)^{^[3]} Likewise, on the briefing and the record, there is a sufficiency of the evidence of the criminal-street-gang special-circumstance enhancement if the murder was carried out to further the activities of the criminal street gang. ( 190.2, subd. (a)(22).) From the evidence of Iniguez and De Leons intentional commission of the crimes in concert with others whom they knew were active Northwest gang members, the jury could reasonably have inferred the requisite association and specific intent. (See, e.g., People v. Leon (2008) 161 Cal.App.4th 149, 162-163; People v. Romero (2006) 140 Cal.App.4th 15, 19-20; People v. Morales (2003) 112 Cal.App.4th 1176, 1198-1199.)

Nonetheless, Iniguez and De Leon seek refuge in other cases, three of which we will discuss briefly. In the first case, People v. Ramon (2009) 175 Cal.App.4th 843, we found an insufficiency of the evidence where the only gang evidence apart from a gang experts opinion was the commission of crimes by two members of a criminal street gang in territory that the gang claimed. (Id. at pp. 849-853.) Here, on the other hand, the evidence includes the predicate offense of the gunpoint carjacking, kidnap, and robbery by two Northwest gang members, one of whom ordered the victim to drive to a remote location, the other of whom followed in a different vehicle, both of whom beat him after arriving at the remote location. The modus operandi in the predicate offense is eerily similar to Iniguez and De Leons in the crimes here.

In the second case, People v. Albarran (2007) 149 Cal.App.4th 214, in which a new trial motion was granted as to the criminal-street-gang enhancements but denied as to the underlying offenses, the issue on appeal was whether the admission of gang evidence to show intent and motive on the underlying offenses was prejudicial. (Id. at pp. 226-227.) No issue of the sufficiency of the evidence of criminal-street-gang enhancements was before the court. Cases are not authority for matters not considered. (People v. Stone (2009) 46 Cal.4th 131, 140.)

In the third case, In re Frank S. (2006) 141 Cal.App.4th 1192, an officer stopped a minor for failure to stop at a red light, found him in possession of a concealed five-and-one-half-inch fixed-blade knife, a small bindle of methamphetamine, and a red bandana, and arrested him for the concealed knife. (Id. at p. 1195.) The minor, who was bicycling alone, gave a false name to the officer, said he had several friends in Northern gangs, and claimed he needed the knife for protection against Southerners who thought he supported Northern gangs. (Ibid.) No evidence was in the record that the minor had gang members with him, was in gang territory, or had any reason to expect to use the knife in a gang-related offense. (Id. at p. 1199.) Reversing the criminal-street-gang enhancement, we emphasized that crimes may not be found to be gang-related based solely upon a perpetrators criminal history and gang affiliations. (Id. at p. 1195.)

Here, in contrast, the record shows that Iniguez and De Leon, in concert with other gang members, committed crimes that would further the activities of the Northwest gang by enhancing the gangs reputation for brutality and violence, deterring witnesses from testifying against gang members, and lowering the risk of apprehension of gang members (and, in turn, of intensification of law enforcement activity against the gang) by a modus operandi strikingly similar to the one in the predicate offense likewise coming to an end in a remote location.

Our duty on a challenge to the sufficiency of the evidence is to review the whole record in the light most favorable to the judgment for substantial evidence credible and reasonable evidence of solid value that could have enabled any rational trier of fact to have made the findings at issue beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Prince (2007) 40 Cal.4th 1179, 1251.) In doing so, our duty is not only to presume in support of the judgment the existence of every fact a reasonable trier of fact could reasonably deduce from the evidence, but also to apply the same standard of review to direct evidence and circumstantial evidence alike. (Prince, supra, at p. 1251.) Our review of the whole record by that standard of review persuades us that a sufficiency of the evidence of the criminal-street-gang enhancements and the criminal-street-gang special circumstance is in the record.

2. Criminal-street-gang Instruction

De Leon argues that instructional error on the criminal-street-gang enhancements tainted the true finding on the criminal-street-gang special circumstance. The Attorney General argues, procedurally, that De Leon forfeited his right to appellate review of the issue and, substantively, that error, if any, was harmless.

At the instruction-settling conference, the prosecutor raised the issue whether the jury should be instructed on the elements of the predicate offenses. On the rationale that the jurys duty was simply to determine whether the prior convictions occurred, not whether the prior convictionsmet the appropriate elements, he opined in the negative. Asked by the court for comments, De Leons attorney said he knew of no authority one way or the other. The prosecutor added that giving the elements on four additional crimes not charged in this case is just going to be unduly confusing. Asked by the court if there was any request for those instructions, De Leons attorney said, Ill submit it, Your Honor. The court said, Im going to give them, and instructed the jury not only with Judicial Council of California Criminal Jury Instructions (2007-2008) (CALCRIM) No. 736 (Special Circumstances: Killing by Street Gang Member (Pen. Code, 190.2(A)(22)) but also, immediately afterward, with modified versions of CALCRIM No. 875 (Assault with a Firearm (Pen. Code, 240, 245(A)(1)-(3) & (B)), CALCRIM No. 1650 (Carjacking (Pen. Code, 215)), CALCRIM No. 2302 (Possession for Sale of Controlled Substance (Health & Saf. Code, 11378)), and CALCRIM No. 2622 (Intimidating a Witness (Pen. Code, 136.1(A) & (B)).

Although the longstanding general rule is that the failure to request clarification of an instruction that is otherwise a correct statement of law forfeits an appellate claim of error based upon the instruction given (People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), an exception to the rule allows a defendant to challenge on appeal an instruction that affects his or her substantial rights even when no objection has been made in the trial court (In re Sheena K. (2007) 40 Cal.4th 875, 881, fn. 2, citing 1259). Assuming, without deciding, that forfeiture implicates De Leons substantial right to the effective assistance of counsel, we turn to the substantive issue before us. (Cf. Rundle, supra, at p. 173, fn. 47.)

The crux of De Leons argument is that instructing the jury on the elements of the predicate offenses was inflammatory and prejudicial and contributed to the true finding on the gang special circumstances even though there was no evidence in the record to show that the murder was for the benefit of Evans Park. Having already rejected his insufficiency-of-the-evidence argument (ante, part 1), we turn to the part of his argument characterizing those instructions as inflammatory and prejudicial to the true finding on the criminal-street-gang special circumstance. In that regard, he asserts that the claimed error undermined [his] federal due process right to a fair trial, citing Chapman v. California (1967) 386 U.S. 18, and that so instructing the jury was inflammatory because it emphasized the high number [of] crimes that gangs were involved in, citing Williams v. Superior Court (1984) 36 Cal.3d 441.

The standard of review of an instruction challenged on appeal as ambiguous is whether there is a reasonable likelihood that the jury applied the instruction in a way that denied fundamental fairness. (See Estelle v. McGuire (1991) 502 U.S. 62, 72-73 & fn. 3; People v. Clair (1992) 2 Cal.4th 629, 663.) The charges on which De Leon was on trial first degree special-circumstance murder, attempted willful, deliberate, and premeditated murder, and kidnapping to commit robbery were far more egregious that those in the predicate offenses by other gang members assault with a firearm, carjacking, possession for sale of a controlled substance, and intimidating a witness. In context, no reasonable juror would apply the instructions he challenges in the manner he suggests. (See People v. Wade (1995) 39 Cal.App.4th 1487, 1493.)

3. Sentencing: Criminal-Street-Gang Enhancements

Iniguez and De Leon arguethe court lacked the statutory authority to impose a section 186.22criminal-street-gang enhancement on the counts on which the court also imposed asection 12022.53 personal-use-or-discharge-of-a-firearm enhancement since the requisite pleading and proof of personal use or discharge of a firearm was lacking. We agree. A section 12022.53 personal-use-or-discharge-of-a-firearm enhancement shall apply to any person who is a principal in the commission of an offense on pleading and proof of a violation of section 186.22, subdivision (b), and the commission by a principal of any act specified in subdivision (b), (c), or (d) of section 12022.53, but a criminal-street-gang enhancement shall not be imposed on a person in addition to a section 12022.53 personal-use-or-discharge-of-a-firearm enhancement unless the person personally used or personally discharged a firearm in the commission of the offense. ( 12022.53, subd. (e)(1), (2), italics added; People v. Brookfield (2009) 47 Cal.4th 583, 590.)

The Attorney General does not challenge the premise of Iniguez and De Leons argument that the prosecutors choice of a vicarious-liability theory led to the lack of pleading and proof of personal use or personal discharge of a firearm. Nonetheless, the Attorney General argues, by analogy to People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez), that the court had the statutory authority to impose and stay asection 186.22 criminal-street-gang enhancement and to impose and execute a section 12022.53 personal-use-or-discharge-of-a-firearm enhancement onthe same counts. In Gonzalez, our Supreme Courtanalyzed language in section 12022.53, subdivision (f), that a section 12022.5 enhancement shall not be imposed on a person in addition toa section 12022.53 enhancement; construed impose to mean impose and then execute; and held that any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed. (Gonzalez, supra, at pp. 1127, 1130, italics added and italics in original.)

In Gonzalez, however, the jury found that the defendant personally used a firearm within the scope of sections 12022.5 and 12022.53 alike. (Gonzalez, supra, 43 Cal.4th at pp. 1122.) Here, the information alleged not that Iniguez or De Leon personally used or discharged a firearm, but only that both were principals, at least one of whom personally used or discharged a firearm within the scope of section 12022.53. Likewise, the jury found not that Iniguez or De Leon personally used or discharged a firearm, but only that both were principals, at least one of whom personally used or discharged a firearm within the meaning of section 12022.53. The Attorney Generals reliance on Gonzalez is misplaced.

By choosing a vicarious-liability theory, the prosecutor waived the right to secure findings of personal firearm use and personal firearm discharge. (People v. Salas (2001) 89 Cal.App.4th 1275, 1282-1283, citing People v. Najera (1972) 8 Cal.3d 504, 508-512, disapproved on another ground by People v. Wiley (1995) 9 Cal.4th 580, 587-588.) On that ground, we modify the judgment to strike, rather than impose and stay, the criminal-street-gang enhancements on counts 1 through 5. Our waiver analysis precludes the need to address the federal constitutional implications of the lack of pleading and proof and of a possible limited retrial solely on the issue of personal use or discharge of a firearm. (Cf. People v. Sengpadychith (2001) 26 Cal.4th 316, 326, citing Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)

4. Sentencing: Stays of Kidnapping Sentences

Iniguez and De Leon argue that stays of both kidnapping sentences are necessary. The Attorney General argues the contrary. We agree with Iniguez and De Leon. Since the jury found both guilty of kidnapping and found both special circumstances of murder in the commission of a kidnapping true, we are compelled to the conclusion as a matter of law that on the record here both crimes were committed pursuant to a single intent and objective . (People v. Beamon (1973) 8 Cal.3d 625, 639; cf. People v. Harris (1989) 47 Cal.3d 1047, 1102-1103.) Neither may be punished for both crimes, so we modify the judgment to stay both kidnapping sentences. ( 654, subd. (a); Beamon, supra, 8 Cal.3d at pp. 639-640.)

5. Sentencing Error: Stay of Weapon Enhancements

Iniguez and De Leon argue, the Attorney General agrees, and we concur that weapon enhancements on stayed counts should likewise be stayed. (People v. Guilford (1984) 151 Cal.App.3d 406, 411.) Our stays of both kidnapping counts require stays of the 25-years-to-life enhancements on both of those counts for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death. ( 12022.53, subds. (d), (e)(1).)

DISPOSITION

The judgment is modified to strike, rather than to impose and stay, the criminal-street-gang enhancements from the murder, attempted murder, kidnapping, and robbery counts and to stay both kidnapping sentences and the weapon enhancements in the latter two counts.

The judgment as modified will show an aggregate sentence for Iniguez of life without the possibility of parole plus one term of life with the possibility of parole plus 50-years-to-life plus two years calculated as follows:

Count 3: Life with the possibility of parole for the kidnapping of Christopher Stoner to commit robbery ( 209, subd. (b)(1)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) with stays on the kidnapping sentence and the firearm enhancement ( 654, subd. (a));

Count 4: Life with the possibility of parole for the kidnapping of Dustin Garnett to commit robbery ( 209, subd. (b)(1)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) with stays on the kidnapping sentence and the firearm enhancement ( 654, subd. (a));

Count 5: Six years (the aggravated term) for the first degree robbery of Christopher Stoner and Dustin Garnett in an inhabited dwelling ( 211, 212.5, subd. (a), 213, subd. (a)(1)(B)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) with stays on the robbery sentence and the firearm enhancement ( 654, subd. (a));

Count 6: Three years (the aggravated term) for conspiracy to kidnap Christopher Stoner and Dustin Garnett ( 182, subd. (a)(6), 207, subd. (a), 208, subd. (a)) plus 10 years (the aggravated term) for the personal-firearm-use enhancement ( 12022.5, subd. (a)) plus a five-year criminal-street-gang enhancement ( 186.22, subd. (b)(1)(B)) with stays on the conspiracy sentence and the firearm enhancement ( 654, subd. (a)) and on the criminal-street-gang enhancement (Cal. Rules of Court, rule 4.447); and,

Count 7: Three years (the aggravated term) for felon in possession of firearm ( 12021, subd. (a)(1)) with a stay ( 654, subd. (a)).

The judgment as modified will show an aggregate sentence for De Leon of life without the possibility of parole plus one term of life with the possibility of parole plus 50-years-to-life calculated as follows:

Count 3: Life with the possibility of parole for the kidnapping of Christopher Stoner to commit robbery ( 209, subd. (b)(1)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) with stays on the kidnapping sentence and the firearm enhancement ( 654, subd. (a));

Count 4: Life with the possibility of parole for the kidnapping of Dustin Garnett to commit robbery ( 209, subd. (b)(1)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) with stays on the kidnapping sentence and the firearm enhancement ( 654, subd. (a));

Count 5: Six years (the aggravated term) for the first degree robbery of Christopher Stoner and Dustin Garnett in an inhabited dwelling ( 211, 212.5, subd. (a), 213, subd. (a)(1)(B)) plus a 25-years-to-life enhancement for personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death ( 12022.53, subds. (d), (e)(1)) with stays on the robbery sentence and the firearm enhancement ( 654, subd. (a)); and

The matter is remanded to the superior court with directions to issue, and to send to appropriate persons certified copies of, an abstract of judgment amended accordingly. Iniguez and De Leon have no right to be present at those proceedings. (See People v. Price (1991) 1 Cal.4th 324, 407-408, superseded by statute on another ground as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) Otherwise the judgment is affirmed.

_________________________

Gomes, J.

WE CONCUR:

_______________________________

Vartabedian, Acting P.J.

_______________________________

Wiseman, J.

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^{^[1]}The gang arose in the late 70s in the northwest area of town in a housing project that surrounds Evans Park. Both names refer to the same gang.

^{^[2]}Later statutory references are to the Penal Code except where otherwise noted.

^{^[3]}On the state of the record, Iniguez and De Leon prudently challenge neither the sufficiency of the evidence that they are active members of the Northwest gang nor the sufficiency of the evidence that the Northwest gang is a criminal street gang.

Description	Dustin Garnett agreed to sell marijuana to Francisco Iniguez. Garnett went with his friend Christopher Stoner to a motel room where, he was told, the deal was to go down. Instead, Iniguez, Jesus De Leon, and others kidnapped Garnett and Stoner and, on a remote frontage road in the middle of the night, fired shots at Stoner, killing him, and at Garnett, hitting him in the hand. Garnett fell to the ground, put his bloody hand over his head, and played dead. Something cold and round touched the back of his head. Then he heard someone say, [T]heyre dead, dont shoot any more. Lets not make any more noise. Leaving Stoner dead and Garnett for dead, everyone else drove away. A jury found Iniguez and De Leon guilty of, inter alia, first degree special circumstance murder of Stoner, attempted willful, deliberate, and premeditated murder of Garnett, kidnapping of both to commit robbery, robbery of both, and conspiracy to kidnap both. Additionally, the jury found allegations true of, inter alia, personal and intentional discharge by a principal of a firearm proximately causing great bodily injury or death and commission of the crimes to benefit a criminal street gang.
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