IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
January 12, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT
ARMANDO GONZALEZ ET AL., DEFENDANTS AND APPELLANTS
APPEAL from the judgment of the Superior Court of Los Angeles County. George Genesta, Judge. Affirmed in part, reversed in part, and remanded. (Los Angeles County Super. Ct. No. KA080534).
The opinion of the court was delivered by: Rubin, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Jose Ortiz and Armando Gonzalez appeal from a judgment after a jury convicted them of attempted murder and assault with a semiautomatic firearm and found true various enhancements. We affirm in part, reverse in part, and remand, directing the trial court (1) to modify the portion of the judgment imposing a 15-year minimum parole eligibility date on Ortiz's sentence and (2) to reinstate and stay firearm enhancements which the court dismissed as to both appellants.
FACTS AND PROCEDURAL HISTORY
At approximately 10:45 p.m., on September 7, 2007, appellants Jose Ortiz and Armando Gonzalez drove down the 1600 block of Berkeley Avenue in Pomona, California, with friend Miguel D., and known "Cherryville" gang member Omar Valencia. The victim, Hector E., was out on the sidewalk in front of his apartment complex watching fireworks.
As the vehicle approached Hector and his friends, appellants told the driver, Miguel, to stop the car. Appellants got out of the car and walked quickly toward Hector. Ortiz was holding a gun by his side, pointed downward. When they were approximately 12 feet from Hector, appellants stopped and asked him where he was from, meaning what gang are you from. Hector, who was not a gang member, replied, "Nowhere. I don't gang bang." Appellants then repeatedly shouted that they were from "Cherryville," a known criminal street gang.*fn2
After the initial confrontation, appellants turned and walked back toward the car. As they neared the vehicle, appellants turned around. Multiple shots were fired at Hector, hitting him twice in his right leg. At trial both Hector and another witness testified appellant Ortiz was the shooter; however, in an interview with police on September 13, 2007, driver Miguel identified appellant Gonzalez as the shooter.*fn3 After the shooting, appellants got back in the car and drove away. Neither appellant spoke as they walked toward the car or as the shooting took place.
A few days after the incident, Gonzalez's girlfriend, Zaira F., told Detective Freeman that Gonzalez had confessed to the shooting. Zaira said Gonzalez told her the victim said something to him which caused the shooting; he did not say exactly what was said. Zaira told Detective Freeman, "I guess he told him something bad words, or like something. I don't know." Both Hector and another witness testified that nothing was said as appellants walked back to the car.
Following a jury trial, Ortiz was convicted of attempted murder (Pen. Code, §§ 664, 187, subd. (a))*fn4 and assault with a semiautomatic firearm (§ 245, subd. (b)). The jury found the attempted murder was willful, deliberate, and premeditated; the crime was committed for the benefit of or in association with a criminal street gang; and a principal personally and intentionally discharged a handgun causing great bodily injury. (§§ 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d) & (e)(1).) The court sentenced Ortiz to state prison for life with possibility of parole for attempted premeditated murder and set a 15-year minimum parole eligibility pursuant to section 186.22, subdivision (b)(5). The court also imposed an additional term of 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1) and ordered it to run consecutively to the first life term.
Gonzalez was convicted of attempted nonpremeditated murder (§§ 664, 187, subd. (a)) and assault with a semiautomatic firearm. (§ 245, subd. (b).) The jury found true gang and firearm allegations. (§§ 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d) & (e)(1).) Gonzalez was sentenced to 32 years in state prison. The court imposed the midterm of seven years for attempted murder, plus 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1).
There was no finding that either defendant personally used a firearm.
1.Sufficient Evidence Supports the Jury's Finding of Attempted Willful, Deliberate, and Premeditated Murder by Appellant Ortiz
Ortiz claims there was insufficient evidence of deliberation and premeditation for the jury to convict him of attempted willful, deliberate, and premeditated murder. We disagree.
" ` "Deliberation" ' refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.] "The process of premeditation . . . does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .' [Citations.]" ' " (People v. Halvorsen (2007) 42 Cal.4th 379, 419, quoting People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
In evaluating Ortiz's claim of insufficient evidence, we apply the substantial evidence rule and determine whether evidence supports an inference that the attempted murder took place as the result of pre-existing reflection, as opposed to an unconsidered or rash impulse. (People v. Garcia (2000) 78 Cal.App.4th 1422, 1427.) We review the entire record and determine whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the defendant guilty beyond a reasonable doubt. (People v. Marshall (1997) 15 Cal.4th 1, 34.)
Taken as a whole, the facts are more than sufficient to support a finding of willful, deliberate, and attempted premeditated murder. Ortiz was a member of the "Cherryville" street gang. A police gang expert testified, and the jury found, the attempted murder was committed for the benefit of the gang. Ortiz yelled for the driver to stop the vehicle when he saw Hector watching fireworks from the sidewalk. When Ortiz exited the vehicle to confront the victim, he had a gun in his hand. After the confrontation, appellants began walking back to the car when they suddenly turned and shot Hector. Witnesses testified Ortiz was the shooter.
While Ortiz contends something was said as he and Gonzalez were walking back to the car which prompted a "sudden," "rash," and "impulsive" decision to turn around and shoot, the only evidence to support this contention is conjecture by Zaira when she told Detective Freeman that Gonzalez had confessed to the shooting. The fact that appellants were walking back to the car before they shot does not sufficiently establish "sudden" or "rash" decision-making. To the contrary, the duration of time it took appellants to reach the area where they began shooting was more than adequate to evidence advance thought and careful weighing of considerations.
2.Sufficient Evidence Supports Appellant Gonzalez's Attempted Murder Conviction as an Aider and Abettor
Gonzalez contends there was insufficient evidence to support the jury's finding that he shared Ortiz's specific intent to kill. After the confrontation with Hector, he and Ortiz were walking back to the car when Ortiz turned around and began shooting. Gonzalez alleges there is no indication he was aware a shooting was going to occur when he decided to confront Hector with Ortiz; in fact, Gonzalez claims he was surprised when Ortiz started shooting. Apparently, this theory was presented and rejected by the jury in closing arguments.
In California, "[w]hen the offense charged is a specific intent crime, the accomplice must `share the specific intent of the perpetrator;' this occurs when the accomplice `knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime.' " (People v. Prettyman (1996) 14 Cal.4th 248, 259, quoting People v. Beeman (1984) 35 Cal.3d 547, 560.) Here, the prosecution was required to prove Gonzalez knew Ortiz intended to shoot Hector, and he got out of the car intending to aid, promote, or encourage the shooting.
It is clear from the record that the jury grappled with the intent required to convict Gonzalez as an aider and abettor. During deliberation the jury asked the court whether the second element of CALCRIM No. 401, which states: "The defendant knew that the perpetrator intended to commit the crime," referred to "specific knowledge of a specific intended crime, or of general knowledge of an outcome that may probably occur as a result of the situation?" Since the "natural and probable consequences" theory of aider and abettor liability was not argued, and the jury was not instructed on it, the court properly responded: "An aider and abettor will share the perpetrator's specific intent when he knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime. To convict a defendant of aiding and abetting attempted murder, you must find that he shared the perpetrator's specific intent to kill."
Having been properly instructed, substantial evidence supports the jury's finding that Gonzalez had the specific intent to kill. Both appellants were "Cherryville" gang members who acted in a manner to benefit the gang. Gonzalez was with Ortiz before, during, and after the shooting. He and Ortiz both yelled for the driver to stop; Gonzalez got out of the car and confronted Hector with Ortiz, who had a handgun in his hand. Detective McCrary testified that in situations where one gang member is the shooter and another gang member is at the scene in close proximity, the nonshooter is "[t]here for strength. He is there to supervise . . . to ensure the work is done." Hector testified that Gonzales turned around and was within two or three feet of Ortiz when Ortiz began shooting. This evidence is sufficient to support a finding that Gonzalez had a specific intent to kill, and by being present and shouting "Cherryville" aided Ortiz in the commission of the crime. The fact the jury chose not to believe Gonzalez acted with the same premeditative intent as Ortiz does not undermine the sufficiency of the evidence or intent to kill.*fn5
3. The Trial Court Erred by Imposing a Minimum 15-Year Parole Eligibility Requirement for Count 1
For the attempted premeditated murder count, the court sentenced Ortiz to life with the possibility of parole. Because the jury found a principal had fired a gun causing great bodily injury in a crime committed for the benefit of a street gang, the court imposed under the gun enhancement statute a consecutive term of 25 years to life. (§ 12022.53, subds. (d) & (e)(1).) The court also imposed under the street gang enhancement statute a minimum period of eligibility for parole of 15 years. (§ 186.22, subd. (b)(5).)*fn6 Ortiz contends the court's imposition of the gun enhancement barred the court from imposing a minimum parole eligibility period under the gang statute. We agree.
Ordinarily, a gun enhancement under section 12022.53 applies only to a defendant who personally used or fired a gun.*fn7 The jury here did not find Ortiz personally used a gun, thus the 25-year gun enhancement typically would not have applied. But when gang members such as Ortiz and Gonzalez commit a crime for the benefit of their gang, subdivision (e)(1) of the gun statute makes all principals to the crime subject to the gun enhancement if any principal used a gun. Subdivision (e)(1) states:
"The enhancements provided in this section shall apply to any person who is a principal in the commission of [a gang related] offense if both of the following are pled and proved:
"(A) The person violated [the gang crime provisions of] subdivision (b) of Section 186.22.
"(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d) [defining various uses of a gun in a crime]."
While a section 12022.53, subdivision (e)(1) allegation expands the gun enhancement's reach to cover unarmed gang members, subdivision (e)(2) operates in the opposite way by exempting unarmed gang members from the gang enhancement's provisions. Subdivision (e)(2) of the gun statute states:
"An enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to [the gun enhancement], unless the person personally used or personally discharged a firearm in the commission of the offense."
In short, a "defendant who personally uses or discharges a firearm in the commission of a gang-related offense is subject to both the increased punishment provided for in section 186.22 and the increased punishment provided for in section 12022.53. In contrast, when another principal in the offense uses or discharges a firearm but the defendant does not, there is no imposition of an `enhancement for participation in a criminal street gang . . . in addition to an enhancement imposed pursuant to' section 12022.53. (§ 12022.53(e)(2).)" (People v. Brookfield (2009) 47 Cal.4th 583, 590 (Brookfield); People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282.)
Issued at the end of August 2009 after the parties had completed their briefing, Brookfield adopted for the purposes of the gang statute a definition of "enhancement" seemingly consistent with the broad meaning Ortiz urges us to apply here to strike the 15-year parole minimum. This court requested supplemental briefing on the application of Brookfield to the present case. The parties appear to agree that the conclusion reached by the court in Brookfield is dispositive.
In Brookfield, the defendant gang member and a gang member accomplice were convicted of shooting at an inhabited dwelling for the benefit of their gang. The defendant did not personally fire the gun; his accomplice was the shooter. The gang statute in question called for a life sentence for shooting at an inhabited dwelling, and the trial court imposed that sentence on the defendant. In addition, because the defendant committed the crime for the benefit of his gang, the court imposed a 10-year gun enhancement. (Brookfield, supra, 47 Cal.4th at pp. 586-587.)
Relying on section 12022.53, subdivision (e)(2) of the gun statute, the defendant argued the trial court had erred in imposing the gang statute's life sentence in addition to the gun enhancement. (§ 12022.53, subd. (e)(2) [gang enhancement not to be imposed in addition to gun enhancement if gang member defendant did not personally use or fire gun].) The Attorney General disagreed, arguing instead for a narrow definition of an "enhancement" as solely that which adds to a base prison term. Applying that narrow definition, the Attorney General asserted that a life sentence for shooting at an inhabited dwelling was an "alternate penalty," not an enhancement. Therefore, in the Attorney General's view, the 10-year gun enhancement could be imposed notwithstanding section 12022.53, subdivision (e)(2) because there was no gang enhancement, only a gang alternative penalty. (Brookfield, supra, 47 Cal.4th at p. 591.) In advancing his argument for a narrow interpretation of a gang "enhancement," the Attorney General identified the minimum parole eligibility at issue before us as a penalty provision, not an enhancement. (Id. at pp. 591-592.) The Supreme Court summarized the Attorney General's argument as follows:
"Section 186.22 [the gang statute], the Attorney General explains, contains not only sentence enhancements . . . but also penalty provisions. The latter are the life sentence under section 186.22(b)(4), which applies here, and two others described in subdivisions (b)(5) [15-year minimum parole eligibility] and (d) of section 186.22. Noting that section 12022.53(e)(2), by its terms, precludes the imposition of `[a]n enhancement for participation in a criminal street gang' (italics added) in addition to an increased penalty imposed under section 12022.53, the Attorney General argues that section 12022.53(e)(2) does not prohibit imposition of a life term under section 186.22(b)(4) in addition to a sentence enhancement under section 12022.53 (as occurred in this case), because the life term is not a sentence `enhancement' but an alternate penalty for the underlying crime of shooting at an inhabited dwelling. . . ." (Brookfield, supra, 47 Cal.4th at pp. 591-592.)
Although directing his argument toward the gang statute's penalty for shooting at an inhabited dwelling, the defendant in Brookfield answered the Attorney General's assertion by making essentially the same argument that appellant does here. The Brookfield court explained:
"[The defendant] argues that the term `enhancement,' as used in section 12022.53(e)(2), encompasses not only an additional prison term but also any greater term of imprisonment (such as a penalty provision) that is imposed because the underlying crime was committed to benefit a criminal street gang." (Brookfield, supra, 47 Cal.4th at p. 592.)
The Brookfield court determined the Legislature intended a broad interpretation of gang enhancements, encompassing not just additions to a base term as urged by the Attorney General, but also "alternate penalty provisions." (Brookfield, supra, 47 Cal.4th at p. 593.) Brookfield reasoned a narrow definition collapsed the distinction the Legislature wanted to preserve between gang members who personally used guns and their unarmed accomplices. (Id. at p. 594.) Accordingly, Brookfield held "the word `enhancement' in section 12022.53(e)(2) refers to both the sentence enhancements in section 186.22 and the penalty provisions in that statute. Thus, [section 12022.53, subdivision (e)(2)] barred the trial court here from imposing both the penalty of a life term under section 186.22(b)(4) and the 10-year sentence enhancement under subdivisions (b) and (e)(1) of section 12022.53." (Brookfield, at p. 595.) As we see no meaningful distinction under Brookfield's analysis between the "penalty provision" of a life sentence for shooting at an inhabited dwelling and the "penalty provision" of a minimum parole eligibility period (People v. Jefferson (1999) 21 Cal.4th 86, 101) - and, indeed, the Attorney General argued in Brookfield that no such distinction existed (Brookfield, at p. 591) - we conclude the trial court erred in imposing the gang statute's minimum parole eligibility period in addition to the 25-year gun enhancement. Given the inapplicability of the 15-year eligibility period, the customary parole eligibility period of seven years for each of Ortiz's consecutive life sentences applies under section 3046. (§ 3046, subds. (a)(1), (b).)
4. The Trial Court Should Have Imposed and Stayed the Remaining Firearm Enhancements
The People argue the trial court erred when it struck as to both appellants the firearm enhancements for personal use (§ 12022.53, subd. (b)) and personal discharge (id., subd. (c)) after the court imposed on each appellant the longest term of imprisonment under section 12022.53 for personal discharge of a firearm causing great bodily injury (id., subd. (d)). We agree. In People v. Gonzalez (2008) 43 Cal.4th 1118, the California Supreme Court concluded "section 12022.53 requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed."
As to appellant Gonzalez, the firearm enhancements under Penal Code section 12022.53, subdivisions (b) and (c) are reinstated and stayed, and the trial court shall correct the abstract of judgment to reflect such reinstatement and staying. The court shall forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
As to appellant Ortiz, the firearm enhancements under Penal Code section 12022.53, subdivisions (b) and (c) are reinstated and stayed. The 15-year minimum parole eligibility period under Penal Code section 186.22, subdivision (b)(5) is struck. The trial court shall amend the abstracts of judgment for Ortiz's determinate and indeterminate terms to reflect the reinstatement and staying of the firearm enhancements. The court shall delete from the abstract of judgment for Ortiz's determinate and indeterminate terms those portions of the trial court's "Other orders" at paragraph 11 of the abstract stating Ortiz's minimum parole eligibility period is 15 years. The court shall modify paragraph 11 to direct parole authorities to apply the provisions of section 3046 in calculating Ortiz's minimum parole eligibility period as seven years for each consecutive life sentence. The court shall forward a copy of the corrected abstracts of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
WE CONCUR: FLIER, J., BIGELOW, J.