APPEAL from judgments of the Superior Court of Los Angeles County, Allen J. Webster, Jr., Judge. Affirmed in part and Reversed in part and Remanded. (Los Angeles County Super. Ct. No. TA094458).
The opinion of the court was delivered by: Willhite, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendants Ramon Botello and Jesus Botello of two counts of attempted willful, deliberate, and premeditated murder (Pen. Code, § 664/187, subd. (a)),*fn2 finding that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and also convicted them of one count of shooting at an inhabited dwelling (§ 246). The jury found, among other firearm enhancements (§ 12022.53, subds. (b) and (c), 12022.5), that in each crime both defendants personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). The trial court sentenced both defendants to state prison for a term of 80 years to life.
In their appeals from their respective judgments of conviction, defendants contend:*fn3 (1) the evidence was insufficient to support the convictions, the firearm enhancement findings, and the gang enhancement finding; (2) the trial court violated their due process rights by disallowing the testimony of a defense witness who remained in the courtroom in violation of a witness exclusion order; (3) the court abused its discretion in imposing consecutive sentences on the attempted murder counts, believing it had no discretion to sentence concurrently, and erred in not staying the sentence on the shooting at an inhabited- dwelling count; and (4) trial counsel was ineffective for failing to object to expert testimony concerning the Mexican Mafia.
In the published portion of the opinion, we hold that the evidence was insufficient to support the charged firearm enhancements. We also reject respondent's contention that the firearm findings under section 12022.53, subdivisions (b), (c), and (d) can be saved by applying, for the first time on appeal, the uncharged provision of section 12022.53, subdivision (e)(1). Rather, under the reasoning of People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo) and People v. Arias (2010) 182 Cal.App.4th 1009 (Arias), we conclude that applying section 12022.53, subdivision (e)(1), which was not charged, would violate the language of that subdivision (which requires that it be pled) and the notice requirement of due process. We also conclude that by its failure to plead subdivision (e)(1), failure to ensure jury findings under that subdivision, failure to raise the provision at sentencing, and obtaining a sentence that in fact violated subdivision (e)(1), the prosecution forfeited its right to rely on that subdivision.
In the unpublished portion of the opinion, we conclude that the court erroneously believed that it had no discretion to sentence concurrently on the attempted murder counts. We therefore remand for resentencing. We disagree with defendants' remaining contentions and affirm the judgment as modified.
On November 10, 2007, around 8:45 p.m., Steven Guzman, a T-Flats gang member, was standing on the sidewalk of Arthur Avenue in the city of Paramount drinking beer with another T-Flats gang member, Fernando Hernandez. Guzman grew up in the same neighborhood as defendants, who were identical twins. In April 2007, defendants had admitted to Los Angeles County Deputy Sheriff Pasqual Delgadillo that they belonged to the Paramount Locos gang. Also, other evidence (discussed below) tied them to the gang.
That evening Guzman saw defendants in a car that pulled into a driveway that led to several houses, including the home where Kevin Deanda and his mother Bertha lived. Defendants joined a group of about 10 to 15 Hispanic teenagers gathered near the Deanda home. Kevin Deanda identified defendants as being among the group. To Bertha Deanda, the group looked like "gangsters," and she yelled at them to leave.
The group left in three cars. As the first car to leave passed Guzman and Hernandez, one of the occupants, a Paramount Locos gang member known as Smokey, raised his middle finger at Hernandez. Hernandez returned the gesture, and he and Guzman exchanged gang signs with Smokey. The second car left, followed by the third car.
In the third car were several people. Guzman recognized defendants seated in the driver's and front passenger seats.*fn4 Because defendants were identical twins, Guzman could not distinguish between them. Hernandez flashed the T-Flats gang sign at the car. The car passed in front of Guzman and Hernandez and stopped just past a truck parked at the curb. Guzman saw the front passenger (one of the defendants, but Guzman could not distinguish which) pull out a rifle and begin shooting. Guzman heard about five or six shots, and was pulled to the ground by Hernandez. Hernandez yelled that he had been shot. The car drove off.
The Deanda's neighbor, Laura Ramon, heard two or three gunshots and the sound of breaking glass. Two bullets passed through the window next to which she was standing and struck a wall inside. One bullet passed through the wall and struck her child's bunk bed.
Hernandez suffered a bullet wound in the right hip. He was taken to the hospital.
According to Los Angeles County Sheriff's Sergeant Stacy Morgan, she was assigned to monitor the Paramount Locos gang. She first learned of the gang in April 2007, when deputies were called to a trailer park regarding a juvenile disturbance call. Since then, she had had in-depth conversations with approximately 10 Paramount Locos gang members, had served search warrants on Paramount Locos locations, and had had various conversations with patrol deputies regarding their contact with Paramount Locos members.
Based on interviews, she learned that the gang was formed by young skateboarders who used the skate parks in the city and had been victimized by other gangs. The skaters formed the Paramount Locos gang to protect themselves. It has 20 to 25 members and identifies itself with a hand sign forming the letters "PLC." The gang was attempting to affiliate itself with "La Ema." Latino gangs in California are generally divided into the "North Siders" north of Fresno and the "South Siders," or "Surenos," south of Fresno. The Surenos are controlled by La Ema, which collects taxes from its affiliated gangs. When smaller gangs are accepted by La Ema, they become associated with the number 13, which symbolizes the letter "M," the 13th letter of the alphabet. To earn "13 status," the gang commits crimes in a particular area so as to exert its control.
The Paramount Locos gang became noticed because it began targeting several more established gangs in the city of Paramount, committing "shootings and assaults of that type." Seeking to control Paramount, the Paramount Locos gang was a rival of all larger gangs in the area, including T-Flats.
Asked about the primary activities of the Paramount Locos, Deputy Morgan testified: "Well most of the crimes, starting off when the gangs were immature, do [sic] smaller crimes: petty theft, vehicle theft, those are typical smaller crimes gangs commit. But it quickly matured to crimes such as assault with a deadly weapon and murder."
Defendants belonged to the Paramount Locos, and went by the monikers "Nesio" and "Vago." From their residence in Bakersfield, several items, including binders and a hardcover journal, were recovered that contained Paramount Locos graffiti. The binder referred to the twins, contained a gang pledge to "South Side" and referred to "one nation under 13." Seized photographs showed defendants and other Paramount Locos gang members making gang hand signs. Defendant Ramon Botello had a "P" tattoo on his right bicep signifying the Paramount Locos. Also, material seized from the residence of another Paramount Loco member, Frank Anguiano ("Sharky") had a roster of Paramount Locos members that listed defendants.
Detective Morgan testified that defendants committed the shooting for the benefit of the Paramount Locos gang. Because Hernandez was a member of a rival gang, the shooting would enhance the Paramount Locos' reputation and help the gang earn its "13" status.
Defendant's father, Ramon Rodriguez Botello ("Ramon Sr."), testified that he and his family lived in Paramount from 1984 to 2004. After brief stays in Norwalk and Long Beach, they moved to Bakersfield in 2006. On the day of the shooting (November 10, 2007) he and defendants worked on a house in Bakersfield that was being remodeled (Ramon Sr. was a construction worker) and returned home sometime around 4:00 or 5:00 p.m. Ramon Sr. owned only one car - an Expedition - and did not allow defendants to drive it. Defendants left the house briefly, but returned to eat dinner with the family at 6:30 or 7:00 p.m. When he went to bed at 10:00 p.m., Ramon Sr. believed his sons were still in the house.
Although he testified that he remembered the events of November 10, 2007 from an entry in a journal, the journal entry for that date actually stated: "No work. Bill didn't show up. He didn't call me. He is not answering the messages. We have absolutely nothing. Bill don't answer the phone." Ramon Sr. explained that by that entry, he meant that he had not been paid that day; the remodeling job had been paid in advance.
Naomi Henriquez, a junior high school student in Bakersfield, knew defendants and was able to distinguish between defendants' voices. Around 5:30 or 6:00 p.m. on the night of the shooting, she called defendants' home to invite their sister to a birthday party. Ramon told her to call back. Around 10:00 a.m. the next morning, Henriquez went to defendants' home, and both defendants were there. Henriquez argued with Ramon because he had not let her talk to his sister.
Fernando Hernandez denied that he belonged to the T-Flats gang. He testified that four Black men drove up and asked him where he was from. Hernandez said that he was not a gang member. The men told him to empty his pockets. When he refused, one of the men said, "Get the burner," which Hernandez understood to refer to a gun. Hernandez pushed Guzman and was shot as he ran away. Defendants did not participate in the shooting.
Hernandez testified that when he was interviewed after the shooting by a deputy sheriff, he told the deputy that he was shot by Black men. However, according to Deputy Esqueda, who interviewed Hernandez at the hospital, Hernandez refused to identify the suspects and did not mention being shot by Black men. Rather, Hernandez said that he would not be a snitch or a rat.
I. Sufficiency of the Evidence
Defendants contend that the evidence is insufficient to support their convictions. In particular, they assert that Guzman's inability to distinguish between which of them was the passenger-shooter and which was the driver renders the evidence of their guilt speculative. We disagree. We review the entire record in the light most favorable to the judgment and presume every reasonable factual inference in support of the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Here, it may reasonably be inferred from Guzman's testimony that after an exchange of rival gang signs with Hernandez, the driver stopped the car to allow the passenger to shoot Hernandez and Guzman. Thus, the driver was guilty as an aider and abettor and the passenger as the actual perpetrator. It matters not that Guzman could not say which defendant played which role. Both defendants were involved - either as aider and abettor or actual perpetrator - and thus were both guilty of the charged crimes.
Defendants contend that Guzman's identification testimony, fairly construed, showed that he only saw one defendant - the passenger -- in the third car as it left the driveway, not both defendants. Defendants' characterization of Guzman's testimony is inaccurate.
On direct examination, Guzman testified that he saw two people in the third car as it pulled out of the driveway, one in the driver's seat and the other in the passenger's seat. He testified that he "recognize[d] both. One . . . but they both look the same." Asked which one he recognized, he testified that he recognized "[t]he one that pulled the strap on us," the passenger. Asked to identify the shooter in court, he testified that it was "[o]ne of the two [in court]. I don't know. They both look the same." The prosecutor asked what Guzman meant when he said that the driver and passenger looked alike. Guzman responded, "They look the same. . . . But they look kind of different right now [in court]. But it was in the nighttime too, you know. I mean, you seen the strap and bullets flying."
Later, Guzman clarified his testimony:
"Q: [By the prosecutor]: So just to be clear, what you remember is one of the twins, you're not sure which one was shooting at you?
"Q: And then there was a driver who looked the same as the one shooting at you?
"Q: Was the driver one of the ...