APPEAL from a judgment of the Superior Court of Los Angeles County. Harvey Giss, Judge. (Los Angeles County Super. Ct. No. PA056316)
The opinion of the court was delivered by: Rubin, Acting P. J.
CERTIFIED FOR PUBLICATION
Defendant Humberto Miranda appeals from the judgment of conviction of attempted murder, second degree robbery, possession of a firearm by a felon and assault with a firearm. He contends principally: (1) there was insufficient evidence to support the conviction on all of the substantive charges, as well as the gang enhancement and (2) the trial court incorrectly calculated the sentence on the attempted murder conviction under the Three Strikes law.*fn1 We affirm.
Defendant was jointly charged with Steven Garcia and George Hernandez with the attempted premeditated murder (count 1) and second degree robbery (count 2) of Rustam K. Defendant alone was charged with being a felon in possession of a firearm (count 4).*fn2 The following Penal Code enhancements were also alleged against defendant as to each count:*fn3
* Section 186.22(b)(1)(C) - felony committed for the benefit of a criminal street gang;
* Section 12022.53(b) - personal use of a firearm;
* Section 12022.53(c) - personal and intentional discharge of a firearm;
* Section 12022.53(d) - personal and intentional discharge of a firearm causing great bodily injury;
* Section 12022.53(e)/Section 186.22(b) - principal use/discharge/discharge with great bodily injury of a firearm;
* Section 667.5(b) - prior prison terms.
It was also alleged that defendant's prior convictions subjected defendant to sentencing under the Three Strikes law.
After the evidentiary portion of defendant's separate trial, the information was amended to add an assault with a firearm charge (count 7) with enhancements pursuant to section 186.22(b)(1) (gang enhancement) and section 12022.5(a) (personal use of a firearm).*fn4
A jury convicted defendant of each substantive offense and as to each crime found true the section 186.22(b) enhancement. As to the attempted murder and robbery convictions, the jury found true the principal use, discharge and discharge with great bodily injury armed enhancements (§ 12022.53(e)(1)); but found "not true" the several personal firearm enhancements (§ 12022.53(b), (c), (d)). As to the assault with a firearm charge, the jury found "not true" the section 12022.5(a) personal firearm use enhancement. In a bifurcated proceeding, the trial court found true two Three Strikes priors and two section 667.5(b) prior prison terms. It denied defendant's motions for a new trial and to strike the priors, and sentenced him to 59 years to life in prison. He filed a timely notice of appeal.
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357), the evidence established that in the late night, early morning hours on July 26, 2006, Rustam K. was smoking marijuana while lounging in his parked SUV at a Mobil gas station in Sylmar where his friend worked. Four male Hispanics, later identified as defendant, Steven Garcia, George Hernandez and "Francisco," pulled up in a Ford Escort and parked nearby. While Garcia went into the station's convenience store to buy beer, Hernandez and Francisco approached the open driver's side door of Rustam's SUV while defendant stood in front of the SUV. Hernandez asked Rustam where he was from, which Rustam understood to mean which gang was he from. Rustam responded, "Nowhere." Hernandez identified himself as being from "San Fer," which Rustam understood as the San Fernando gang. (It was undisputed that defendant and Garcia were members of the San Fer gang. Hernandez apparently was an associate of that gang.) When Rustam declined Hernandez's request that he "share" the marijuana he was smoking, Hernandez pulled the chain off Rustam's neck. As Rustam chased after Hernandez, Rustam heard gun shots. Turning in the direction from which the shots were coming, Rustam saw defendant firing a handgun at him; Rustam was shot twice.
Officers on patrol nearby heard the gun shots, saw Rustam in a blood stained T-shirt staggering around the Mobil station, and saw the Escort drive out of the gas station at high speed. Suspecting the occupants of the Escort may have been involved in a shooting, the officers pursued the vehicle. During the ensuing high speed chase, the officers could make out four people in the Escort, but could not tell who was sitting where. During the chase, the officers saw items being tossed out of the back windows of the vehicle but could not discern what those objects were. The police later recovered pieces of a broken shotgun and live ammunition along the pursuit route. The chase ended about three miles from where it began when the Escort crashed into a lightpole and a chain link fence. Because the driver's side was blocked by the fence, all four occupants of the Escort emerged from the passenger side front and back doors, but the officers could not identify who came through which door. Defendant was apprehended as he was running away from the car. Garcia and Hernandez were arrested several hours later after they were found hiding nearby. "Francisco" was never caught.
Defendant testified to a different version of events at the Mobil station. He maintained he was standing behind Francisco and Hernandez when Hernandez was asking Rustam for the marijuana. Defendant did not hear Hernandez announce the San Fer gang name before he grabbed at Rustam. Defendant did not know that there were any firearms in the car that night and although he heard gunshots he did not know who was shooting. (Defendant later learned that Francisco was the shooter.) After hearing the gunshots, defendant ran back to the Escort and jumped into the front passenger seat. Francisco jumped into the driver's seat, and Garcia and Hernandez jumped into the back seat. Francisco was driving during the police pursuit, during which Garcia and Hernandez were throwing things out the back windows. Defendant did not know what they were throwing and never saw a shotgun in the car that night.
A. Substantial Evidence Supported the Convictions of the Substantive Crimes
Defendant contends the evidence was insufficient to support the convictions of attempted murder, robbery, assault with a firearm and felon in possession of a firearm. The linchpin of each argument is that, because the jury found "not true" all of the personal gun-use enhancement allegations, it necessarily found defendant guilty of the attempted murder, robbery and assault with a firearm charges only as an aider and abettor, and must have found that defendant only constructively possessed the firearm for the felon in possession charge. Stated in the converse, the jury must have found defendant was not the direct perpetrator of any of the crimes. He then argues the evidence was insufficient that he acted as an aider and abettor or that he constructively possessed the firearm. Defendant's argument does not persuade us for two reasons. First, under the inconsistent verdict doctrine, the "not true" finding on the personal use enhancements does not inexorably lead ...