Appeal from a judgment of the Superior Court of Orange County, David A. Thompson, Judge. (Super. Ct. No. 06NF2588)
The opinion of the court was delivered by: O'leary, J.
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Randle Hester appeals from a judgment after a jury convicted him of first degree murder (Pen. Code, § 187, subd. (a), count 1),*fn1 shooting at an occupied motor vehicle (§ 246, count 2), conspiracy to commit murder (§ 182, subd. (a), count 3), three counts of premeditated and deliberate attempted murder (§§ 664, subd. (a), 187, subd. (a), counts 5, 6, and 7), and street terrorism (§ 186.22, subd. (a), count 9). As to count 1, the jury found true the special circumstances Hester committed murder during a drive-by shooting (§ 190.2, subd. (a)(21)), and to further the activities of a criminal street gang, "East Coast Crips" (East Coast), and "Osage Legend Crips" (Osage Legend)
(§ 190.2, subd. (a)(22)). As to counts 1, 2, 5, 6, and 7, the jury found true Hester vicariously discharged a firearm (§ 12022.53, subds. (c), (d) & (e)(1)). As to all but count 9, the jury found true Hester committed the crimes for the benefit of a criminal street gang, East Coast and Osage Legend (§ 186.22, subd. (b)(1)).
Hester argues insufficient evidence supports the jury's finding on the gang special circumstance, the gang enhancement, and the firearm enhancement. He also contends the abstracts of judgment are incorrect. Although we agree concerning the abstracts of judgment, his other claims have no merit. We affirm the judgment as modified.
One evening, Jennifer Gardner, Maxine Solomon, Darnell Little, and Christopher Lang went to a nightclub in Anaheim in Gardner's 1997 Honda Passport. Gardner and Little had been dating for about five months. The group stayed at the club for about two hours. As they left the club, Darrel Gray and Randle Hester called Gardner a "bitch," and Little became upset. Little and Gray argued and each claimed gang membership. Little said "20's Crip," and Gray replied "East Coast." The parties left the club separately.
Little drove Gardner's vehicle to a nearby gas station and everyone got out. A blue Dodge Magnum pulled into the gas station. Little and Gray argued again. Gardner and Solomon got back into the vehicle. Little got in the vehicle and said, "Let's go."
Little and his group got onto the I-5 freeway heading northbound. Gardner then saw the same blue Dodge Magnum that Hester and Gray were driving. Moments later Gardner heard "muffled sounds," like gunshots, and Little swerved the car into the center divider. The car's occupants asked each other if they were okay, but Solomon did not respond. Little immediately got out of the vehicle, went to Gardner's side of the vehicle, and opened the door. Gardner said Solomon could not hear them call her name, but she was okay. Little said something when the vehicle door slammed shut, but then Little was gone. A truck driver traveling northbound on the freeway saw a vehicle in the middle of the freeway. The driver had no time to avoid hitting Little who was standing next to the vehicle. Gardner and the others got out of the vehicle and saw Little 50 feet up the freeway, lying dead on the ground.
Detective Ryan Dieringer investigated the case. Dieringer obtained a copy of the videotape from surveillance cameras at the nightclub, and he distributed copies to gang officers in Los Angeles County to obtain help in identifying the suspects. Gardner identified Gray in a photographic lineup, although she was unable to identify Hester in another photographic lineup. Detective Ronald Kingi called Dieringer and identified the suspects in the videotape as Darrel Gray and ...