APPEAL from a 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. KA080344).
The opinion of the court was delivered by: Kriegler, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
The jury convicted defendant and appellant Ricardo Arias of the first degree murder of Travion Hurndon in violation of Penal Code section 187, subdivision (a),*fn2 finding the murder was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)), and defendant personally and intentionally discharged a handgun (§ 12022.53, subds. (b)-(d)). The jury also found defendant committed the "attempted first degree" murders of Quincy Stevenson and Damian Spells (§§ 664 and 187, subd. (a)), returning true findings on the gang and firearm allegations.*fn3 In a separate proceeding, the trial court found defendant served a prior prison term for purposes of section 667.5, subdivision (b). For the murder, defendant received a sentence of 25 years to life plus 25 years for the firearm enhancement and one year for the prior prison term, with the gang enhancement stricken. For the attempted murders, defendant received consecutive life terms plus a 20-year firearm enhancement, with a 15-year minimum parole eligibility date.
In his timely appeal, defendant contends (1) the penalty enhancement for the attempted murders must be stricken because the prosecution did not allege those offenses were committed willfully, deliberately, and with premeditation as required by section 664, subdivision (a), and federal due process; (2) there was constitutionally insufficient evidence to support the gang findings because the evidence of a gang-related motivation was speculative and there was no substantial evidence that the Puente gang qualified as a criminal street gang under the statutory definition; and (3) there was constitutionally insufficient evidence to support the attempted murder conviction as to Damian Spells (count 3).
We agree with defendant's argument that the prosecution's failure to plead that the attempted murders in counts 2 and 3 were willful, deliberate, and premeditated requires the life sentences be set aside and defendant be resentenced to a determinate term as prescribed by law. The judgment is otherwise affirmed.
On June 6, 2006, Spells and his friends Hurndon and Stevenson were celebrating Spells's birthday. They went to a 7-Eleven on Main Street in downtown La Puente just before midnight. After buying some snacks, the three walked across Main Street. There were no other pedestrians nearby. A car slowed down as it approached them. Defendant rolled down the passenger window and shouted, "What the fuck are you looking at?" They did not respond and kept walking after the car passed by. The car made a U-turn and drove back to them. Defendant got out of the car. He wore a hoody sweatshirt with the hood up, baggy jeans, and "skater-type" shoes. Standing within a few feet of Spells, defendant pointed a semiautomatic handgun at him, while the driver waited in the car. Defendant also pointed his gun at Stevenson, paused, and within 10 seconds began firing at Hurndon. Spells and his two friends ran away from defendant, with Hurndon in front. Approximately four shots were fired before defendant returned to the car, which sped away from the scene.
As they ran, Hurndon fell to the ground, bleeding. Stevenson stopped to render first aid and to call the paramedics and police, while Spells ran home to get his car to transport their friend to the hospital. Spells returned within five minutes. Paramedics had arrived and emergency personnel drove Hurndon to the hospital. He had suffered two bullet wounds, one to his arm and a fatal wound to his back that passed through his chest.
Stevenson's memory of events was similar to that of Spells. He recalled buying a carton of chocolate milk. As they crossed the street, a car pulled up to them and the person in the front passenger seat said, "Who are you looking at?" and "What's up, Nigger." They responded, "We don't bang." The car drove past them, but returned shortly. The passenger exited the car holding a handgun, which he pointed in Stevenson's direction in a threatening manner. Stevenson could not see him well because he was not wearing his glasses, but when Stevenson lifted the milk carton to his mouth, the gunman shot it out of his hand. Stevenson immediately ran away with his two friends. He heard gunshots and saw Hurndon fall. Stevenson ran to him and saw he was bleeding from his chest; he was conscious but could not speak. A resident called the police.
Sheriff's Deputy Marco Encinas responded to the shooting. Hurndon described the shooter as a Hispanic male in a hooded sweatshirt, who wore the hood up. Stevenson told the deputy that the shooter fled in a two-door, dark blue Honda. When Detective Paul Fournier arrived at the scene a few hours later, he found four expended shell casings and one live bullet, along with some snacks and a chocolate milk carton.
In August 2007, a search warrant was served on a La Puente residence at 6:00 a.m. Inside one of the bedrooms, there were letters addressed to defendant, along with a notebook and paperwork bearing defendant's name. The notebook had references to "Puente" and the name, "Clowney." The style of writing was typical of Hispanic gang members. "Puente" is a known criminal street gang. On one of the pages, there was the notation, "P13," which was a reference to the Puente 13 gang. There was also the statement, "I'm a gangster for life." Other pages contained the statements, "I puts it down for my crazy town representing the bridge" and "I'm a gangster." Defendant was not home at the time of the search. He was not found at his girlfriend's home, where he had spent the night. Nor was he at his place of work that morning when the detective arrived. Defendant was arrested approximately two months later.
Deputy Ron Duval testified as a gang expert, having served as a gang investigator for 20 years. He has received more than 300 hours of department training in gang-related matters and has handled gang cases for the past 15 years in the City of Industry station, which is responsible for patrolling La Puente. He was not on duty at the time of the Hurndon killing. In Spanish, "la puente" means "the bridge." "Puente" is a criminal street gang that operates within the City of Industry patrol area. It is the "main gang," "comprised of several clicks*fn4 which form the gang itself." "Puente" claims a large territory and has 956 documented members. The shooting incident occurred in Puente territory. Among "Puente's" identifying names and symbols are "Puente 13" and "P13." The cliques that operate within "Puente" have separate marks of identification. For instance, the "Dial" clique claims the area of the shooting incident and identifies itself as "DB." "Puente Trece" is the same as Puente 13, which refers to the main gang.
"Puente" is a Hispanic gang. Its members have a long and ongoing antipathy toward the African-Americans in their territory. Members of "Puente" believe they should shoot or rob any African-American in their territory, regardless of whether the African-American is a gang member.
The primary activities of the "Puente" gang, including the "Dial" clique, are selling and distributing narcotics, committing residential burglaries and thefts to fund their narcotics activities, and the commission of murders, drive-by shootings, rapes, kidnappings, robberies, and graffiti. A "Puente" member named John Luis Sanchez was convicted of an attempted murder and other crimes on January 15, 2004, and October 18, 2002. The attempted murder was committed in 2003. Sanchez admitted being an active "Puente" member of the "Blackwood Street" clique. Also, Steven Burguan was convicted of attempted murder and related offenses in 2003 for crimes committed that same year. Burguan admitted being a member of the "Puente" gang. A "Dial" member named Elroy Martinez was under investigation for attempted murder.
Deputy Duval opined that defendant was a member of the "Puente" gang because he had admitted his membership to other deputies. Defendant had "Puente" tattooed across his chest, and the letters "L" and "P" tattooed on either side of his chin. From other gang investigators, the expert had learned that defendant's gang moniker was "Clown" or "Clowney." Defendant's residence on Bamboo Street was within the territory claimed by "Dial," along with other "Puente" cliques such as "Perth Street" and "Tinflaenas." The expert explained that most of the "Puente" cliques cooperated with each other, but some were rivals-for example, the "Ballista" and "Blackwood" were rivals. "Dial" tended to align with "Blackwood"; "Tinflaenas" and "Perth" with "Ballista." Those feuding cliques would sometimes commit crimes against each other, while other members maintained inter-clique friendships. In short, "Puente" is a gang and the cliques are part of it.
The expert reviewed the writings in the notebook found in defendant's bedroom. There were references to his affiliation with the "Puente" gang and gang moniker, Clowney. For instance, the writer stated, "I'm a gangsta." The reference to "representing the bridge" indicated the writer's willingness to acting on behalf of the "Puente" gang. Other references to "putting it down" in gang parlance signified doing work-that is, committing crimes-for the gang. Committing some crimes served the gang by raising money to buy guns and obtain cars to promote their activities. In addition, such acts not only enhanced the member's reputation within ...