APPEAL from a judgment of the Superior Court of Los Angeles County, Monica Bachner, Judge. (Los Angeles County Super. Ct. No. BA350372)
The opinion of the court was delivered by: Kumar, J.*fn7
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant, a member of the Rebels street gang, went on a mission late one evening to locate and "blast" a member of a rival gang - The Magicians Club (TMC). In an effort to find TMC gang members, defendant summoned 17-year-old Wanner Luna out of his apartment and pointed a gun at him. Defendant asked him whether he was a member of TMC and if he knew the location of TMC gang members. Luna denied membership in the rival gang. Nevertheless, defendant, still holding the gun, walked behind Luna for approximately 15 feet to Luna's apartment, so that defendant could search for TMC gang members. Defendant left the apartment after finding no TMC gang members. Defendant then encountered Byron Delcid in the hallway. Defendant pointed the gun at him and asked if he were a TMC gang member. Delcid said he was not a member of the gang, whereupon defendant ordered him into an apartment and left the scene.
A jury convicted defendant of kidnapping (Pen. Code, § 207, subd. (a))*fn2 and two counts of assault with a semiautomatic firearm (§ 245, subd. (b)). In addition, the jury found defendant used a firearm in the commission of the offenses (§ 12022.53, subd. (b) [kidnapping]; § 12022.5, subd. (a) [assaults]) and that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). He was sentenced to 20 years, 4 months in state prison and ordered to pay statutory fees/fines.
Defendant contends the trial court improperly denied his motion for judgment of acquittal on kidnapping; there was insufficient evidence to establish the gang enhancement; the trial court erred by punishing him for both firearm and gang enhancements; the trial court did not award him the appropriate amount of presentence custody credit; and the trial court improperly imposed court facilities assessments. We reject defendant's contentions, require modification of the abstract of judgment to reflect less presentence custody credit, and affirm the judgment.
1. Defendant Begins His Search For TMC Gang Members
Wanner Luna began his testimony by stating, "I'm not here to press charges. I'm just here to say what happened that night." He was concerned a street gang would "go after" him because he testified.
The events he testified to occurred near midnight on December 12, 2008. It was then that Luna heard someone calling his name from outside his apartment building. He exited the building and observed defendant standing with a girl.
Defendant pointed a gun toward Luna's chest or stomach. Defendant asked if Luna knew the location of TMC gang members and whether Luna was a TMC gang member. Luna replied, "No." Defendant told Luna to lift up his shirt so defendant could examine Luna's stomach for TMC tattoos. Luna complied - he did not have any TMC tattoos.
Luna was "scared" and "just following [defendant's] directions."
Defendant and the female walked behind Luna for about 15 feet to Luna's apartment door. Defendant still had the gun. Luna took the situation seriously and asked defendant to "chill." He went to the apartment because he was afraid and defendant had a gun. Although defendant entered the apartment, Luna did not invite defendant into his apartment and did not want him to enter his apartment.
When they reached the apartment, defendant said, "I'm telling you again, where the TMC's at [sic]?" Luna said he did not know the location of the gang members, and asked defendant to leave. Defendant, however, ascended the apartment's stairs to the second story. Luna followed. He explained, "[I] thought [defendant] was going . . . to do something like check the rooms. And my mom was sleeping, and he had a gun. . . ." Defendant eventually left the apartment. Luna locked the door and could hear defendant confront another individual.
2. Defendant Encounters Byron Delcid
After leaving Luna's apartment, defendant saw Byron Delcid in the hallway. Delcid was in the apartment building to visit his brother-in-law. Defendant pointed the gun at Delcid's stomach, asked him if he was a TMC gang member, and instructed him to lift up his shirt. Delcid lifted his shirt, showed defendant that he had no tattoos, and indicated he was not a TMC gang member. He was afraid defendant might enter the apartment and harm Delcid's family.
Delcid's sister-in-law opened the apartment door. Defendant told Delcid to enter the apartment and close the door. He followed defendant's instruction.
Near midnight on December 12, 2008, Los Angeles Police Department (LAPD) Officer Otis Antoine received a radio call regarding a male and female suspect. He then observed defendant and Marelin Martinez ("Martinez") walking on Vine Street. They matched the description of the suspects.
The officer called defendant over. Defendant approached the officer. He placed his hands in the air, whereupon a handgun fell off of defendant's person and hit the ground.*fn3 Defendant was arrested and spontaneously stated, "Fuck TMC. I'm down here to blast a fool. They shot me in my heel. Fuck TMC."
LAPD Officer Melvin Martinez was assigned to monitor the Rebels street gang. The officer had approximately four consensual encounters with defendant wherein defendant admitted he was a member of the Rebels. Further demonstrating his gang membership, defendant had gang-related tattoos on his body, including but not limited to, the word "Rebels" tattooed on his eyebrow and stomach as well as an "R" tattooed on the back of his head. Defendant's female accomplice was also an admitted member of the Rebels and had tattoos consistent with her membership.
TMC was a rival of the Rebels gang. The building where the crimes were committed was located in an area considered to be TMC territory.
Officer Martinez opined the crimes benefited the Rebels because they enhanced the gang's reputation. He explained that, by seeking to shoot a member of a rival gang who harmed a Rebels gang member, the Rebels gang member demonstrates strength. Indeed, if a Rebels gang member does not retaliate under these circumstances, he could be assaulted by his fellow gang members or removed from the gang. In addition, when a gang member commits a crime in a rival gang member's territory, he elevates his status within his gang.
The officer further opined the crimes were committed in association with a criminal street gang because two gang members were together. The presence of a second gang member allowed for a "lookout" and a witness to vouch for the gang member who committed the crimes.
Defendant testified on his own behalf. He met Luna at a juvenile camp he was required to attend due to the commission of a prior crime. At the camp, the two became best friends. On December 12, 2008, he spoke to Luna on the phone before going to his apartment. Luna said he had not seen defendant in a while so defendant responded, "[D]on't trip. I'll be there. Just give me a few minutes." Luna provided defendant with directions to the apartment and asked defendant to scream Luna's name when he arrived. According to defendant, Luna's apartment was not in TMC territory.
Defendant arrived at Luna's apartment approximately 10 minutes later with Martinez. They screamed Luna's name and Luna came outside. Defendant did not point a gun at Luna and he was not there to shoot TMC gang members. He went into Luna's apartment and the two conversed on the couch. Defendant and Martinez left after about 20 minutes.
Defendant encountered Delcid in the hallway and said, "[W]hat's up fool?" Defendant did not believe Delcid was a gang member and did not say any "gang-related stuff" to Delcid. After Delcid told defendant his name, defendant exited the building. Defendant may have accidently displayed his gun to Delcid because the gun was in his waistband and was visible at some point. Delcid was afraid because of defendant's tattoos.
Defendant did not make the statement regarding TMC to the arresting officer. He had not been shot in the foot by a TMC gang member.
For the most part, Martinez provided testimony that was consistent with defendant's testimony. Martinez indicated both she and defendant were Rebels gang members. She explained Luna invited the two of them into the apartment. Although defendant was carrying ...