IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
April 29, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RAMIRO LEON, JR., DEFENDANT AND APPELLANT.
Super. Ct. No. CRF084846
The opinion of the court was delivered by: Hoch, J.
P. v. Leon
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A confrontation between two rival gangs, the Nortenos and Surenos, began on a school bus and moved to Campbell Park in Woodland. It ended with a drive-by shooting; defendant fired out of a car, wounding a boy and just missing a young woman in her car. A jury convicted defendant of deliberate, premeditated attempted murder (Pen. Code, §§ 664, subd. (a); 187, subd. (a)*fn1 ) with gang (§ 186.22, subd. (b)(1)) and discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)) enhancements; shooting at an occupied motor vehicle (§ 246) with a gang enhancement; and malicious discharge of a firearm from a vehicle (§ 12034, subd. (c)) with enhancements for gang activity and discharging a firearm causing great bodily injury. Sentenced to state prison for 55 years to life, defendant appeals. He contends there is insufficient evidence the attempted murder was willful, deliberate and premeditated. He also requests correction of several sentencing matters, as to which the People concede error. We modify the judgment to correct the sentencing errors and otherwise affirm.
There are over 700 validated gang members in Woodland. Because gang members are most active between the ages of 14 and the late 20's, gangs are a problem in high schools. The predominant gang problem in Woodland stems from the number of Nortenos and Surenos, with Nortenos outnumbering Surenos. The governing body for Nortenos is the prison gang Nuestra Familia, while the governing body for Surenos is the prison gang Mexican Mafia; the two gangs were formed as rivals. The parties stipulated that both Nortenos and Surenos qualify as criminal street gangs under section 186.22.
Gang life is all about preserving one's reputation. To this end, no act of disrespect can go unanswered or the member, and the gang, loses credibility. There are no levels of disrespect; any act must be answered. Gangs equate fear with respect and believe in street justice by retaliation. A member gains status in the gang by committing crimes. Drive-by shootings are common between Surenos and Nortenos, but Surenos consider them cowardice and an edict from the Mexican Mafia declares them not allowed.
East Side Trece or EST is the prominent group of Surenos in Woodland. One has to earn rank to get a gang tattoo. At the time of the shooting, defendant was bald and had several tattoos on his head. These included "Sur," "EST," "530," and "Fuck the World." The area code for Woodland is 530 and it is common for gang members to have tattoos of their area code. Defendant was an active member of the Surenos.
Defendant attended Cache Creek High School. The bus from the high school stopped near Campbell Park. That area is known as Norteno turf. On the school bus, Nortenos sit in back and the Surenos in front. On the day of the shooting, the bus was full and there was a lot of yelling and clay was thrown. There were always problems on the bus, but that day it got out of control. At Fourth Street, a group met the bus and someone spit on it. They talked about meeting at Campbell Park to fight.
B.C., a Cache Creek student who associated with Surenos, saw defendant and two others walking towards Campbell Park; they asked for a ride. Some other Surenos went to the park in a red Scion. When the group of Surenos got to the park they did not fight because there were too many people and they would get jumped.
Defendant said he had a gun and B.C. said, "let's go get it." Defendant got his gun and said he wanted "[t]o do a drive-by." He claimed he was going to shoot in the air. Since B.C. did not want to drive defendant with the gun, she called R.R. R.R. had a pearl white Chrysler 300. The car has tinted windows. The group wanted defendant to go with R.R. because her car had darker windows. Defendant wore black with a blue bandanna across his face. He got in the rear passenger seat of the Chrysler.
J.S. drove her green Honda to the park and stayed inside. J.Z. got off the school bus at Campbell Park as usual. He was going to walk home with a friend.
A red Scion drove around the park a few times; someone in the car threw gang signs. Following the red car was R.R.'s white Chrysler. A male who came with J.S. threw a brick to get the cars to stop. The rear passenger window of the Chrysler opened, and defendant fired several shots. He said, "EST" and that he would do it again.
The Chrysler was only a few feet from J.S.'s car when the shots were fired. J.Z. was standing nearby and was shot in the hip. He was in the hospital two days; a bullet was lodged in his pelvis. The parties stipulated his injuries constituted great bodily injury. Bullets hit J.S.'s car. A bullet hit the driver's side of the windshield and damaged the dashboard. There was also a bullet on the driver's side at the rear of the car.
Shortly after the shooting a police officer who worked as a school resource officer contacted defendant with a group of known Surenos. The officer did not recognize defendant and asked him where he was from. Defendant replied he had recently moved from L.A.
In the days after the shooting a teacher's aide noticed eighth grader J.G. appeared nervous and upset. J.G. told the aide her brother's friend did the shooting. After the mandatory report to the principal, J.G. was interviewed by the police. J.G. told the police that defendant came to her house and said he wanted to get out of town. Her cousin asked defendant about the gun; he said the gun and the gloves he used were "out of here." Defendant said the shooting occurred at Campbell Park; he was with a lot of people, they saw a lot of Nortenos and he started shooting. He wanted to see a newspaper to read about the shooting. He said he did not care if they got him because they had no proof it was him.
At trial, J.G. denied she heard defendant talk about the shooting. She claimed this interview was a lie.
After the shooting, R.R. threw away four bullets she found in the car. A few months later she had the Chrysler painted another color. R.R.'s older brother, who had been a Sureno but claimed he stopped once he had kids, confronted defendant. He was angry that defendant had gotten his sister in trouble, especially since his mother had health issues. Defendant said, "It happened, it happened." The brother told defendant he was not supposed to do drive-bys. Defendant replied, "I had to do it."
I. Sufficient Evidence of Deliberation and Premeditation
Defendant contends there was insufficient evidence the attempted murder was willful, deliberate and premeditated. He contends the evidence shows he intended to shoot his gun in the air and the shooting was a rash and impulsive act in response to the provocation of the brick being thrown.
When a criminal conviction is challenged on the basis of insufficient evidence, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Section 664, subdivision (a), provides the usual sentence for attempt is one-half the sentence for the crime attempted. "However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole." (§ 664, subd. (a).)
"In this context, 'premeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' [Citation.] The process of premeditation and deliberation does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .' [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 767.)
Under the tripartite test of People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), we focus on three categories of evidence of premeditation and deliberation: (1) planning activity prior to the killing; (2) evidence of motive to kill, derived from defendant's prior relationship or conduct with the victim; and (3) the manner of killing, indicating some preconceived design to kill.
Here there was sufficient evidence from which a rational trier of fact could conclude defendant's shooting was deliberate and premeditated. The evidence supporting premeditation and deliberation falls primarily within the first two categories identified in Anderson, supra, 70 Cal.2d 15, planning activity and motive.
When he originally went to the park, defendant was unarmed. Seeing the number of Nortenos present, he decided to retrieve his gun. That act gave him time to consider whether and how to use lethal force. (People v. Millwee (1998) 18 Cal.4th 96, 134-135.) Bringing a weapon to the scene of the crime shows planning activity. (People v. Horning (2004) 34 Cal.4th 871, 902; see also People v. Wharton (1991) 53 Cal.3d 522, 547 [evidence that defendant either retrieved hammer in advance or went to garage to obtain hammer and kill victim was indicative of planning activity]; People v. Morris (1988) 46 Cal.3d 1, 23 ["Defendant's possession of a weapon in advance of the killing, and his rapid escape to a waiting car moments afterwards, amply support an inference of planning activity"], disapproved on other points in People v. Sassounian (1995) 9 Cal.4th 535, 543, 545, fns. 5 & 6.)
Defendant expressed his intention to "do a drive-by," from which the jury could infer he planned to shoot someone. While B.C. testified defendant said he planned to shoot only in the air, he could have, as the trial court found, masked his true intention from his companions or have changed his mind. Further, his companions may have understood his true intentions, as shown by their reluctance to have him and the gun in their cars and their involving R.R. instead. At trial, B.C. may have tried to downplay their knowledge (and culpability) despite admitting the precautions taken to avoid detection. B.C. was to drive close to R.R. to "[c]over her plates," so the license plate could not be identified. Defendant covered his face with a bandanna and went in the car with tinted windows so he could not be identified.
In addition to planning activity, there was strong evidence of motive to support premeditation. Premeditation is often found in gang shootings based on the motive of intense gang rivalry. (People v. Martinez (2003) 113 Cal.App.4th 400, 413.) "A studied hatred and enmity, including a preplanned, purposeful resolve to shoot anyone in a certain neighborhood wearing a certain color, evidences the most cold-blooded, most calculated, most culpable, kind of premeditation and deliberation." (People v. Rand (1995) 37 Cal.App.4th 999, 1001.) The gang expert testified the shooting was done for the benefit of, and in association with, the gang. During the shooting, defendant announced both his gang affiliation, "EST," and that he would do it again.
Defendant contends the cases that have found deliberation based on gang motive are distinguishable because here defendant was provoked by the throwing of the brick. The evidence, however, was that the brick was thrown at the red Scion, not at the white Chrysler. At most, the thrown brick was an act of disrespect by a rival gang that defendant was fully prepared to address as he was masked and armed. (See In re Sergio R. (1991) 228 Cal.App.3d 588, 597 [retaliatory drive-by shooting provides evidence of deliberation and premeditation].) There is substantial evidence of deliberation and premeditation.
II. Correction of Sentence on Attempted Murder
Defendant contends the trial court erred in sentencing him to 15 years to life on the attempted murder charge. He contends the proper sentence was life imprisonment with a 15-year minimum parole eligibility. He does not challenge the sentence of 25 years to life on the firearm enhancement. The People properly concede the error.
Defendant was convicted of deliberate, premeditated murder with a gang enhancement under section 186.22, subdivision (b). The penalty for attempted deliberate, premeditated murder is life in prison with the possibility of parole. (§ 664, subd. (a).) Where defendant commits a crime punishable by life in prison for the benefit of, at the direction of, or in association with a criminal street gang, he is not eligible for parole until he has served a minimum of 15 years. (§ 186.22, subd. (b)(5).) This gang enhancement "is not an additional determinate term, but an extended parole eligibility date." (People v. Ortiz (1997) 57 Cal.App.4th 480, 486.) For offenses punishable by an indeterminate term for life, "the gang enhancement provision does not increase the life term for the underlying offense." (People v. Sengpadychith (2001) 26 Cal.4th 316, 327.)
We modify the sentence on Count 1 to life in prison, with a minimum parole eligibility date of 15 years, plus 25 years to life for the firearm enhancement.
III. All References to Section 664, subdivision (f),
Must Be Stricken
Defendant contends all references to section 664, subdivision (f), in the verdicts and abstract of judgment must be stricken. The verdict forms for Count 1 and the abstract of judgment indicate the finding that the attempted murder was deliberate and premeditated pursuant to subdivision (f) of section 664. Defendant contends this reference was error because that subdivision applies only to the attempted murder of a peace officer or firefighter. The People properly concede the error.
As discussed ante, subdivision (a) of section 664 provides for a life sentence for attempted deliberate and premeditated murder. Subdivision (f) of section 664 provides for a sentence of 15 years to life for a deliberate, premeditated attempted murder "if the elements of subdivision (e) are proven." Subdivision (e) applies where the victim is a peace officer, firefighter, custodial officer, custodial assistant, or nonsworn uniformed employee of a sheriff's department engaged in the performance of his or her duties. (§ 664, subd. (e).) The victim of the attempted murder, J.Z., was in none of these categories; neither subdivision (e) nor (f) of section 664 applies.
Defendant concedes the mistaken references are technical defects only; they did not deprive defendant of notice or result in improper jury instructions. Accordingly, we need only order the verdicts and abstract of judgment modified to strike all references to subdivision (f) of section 664.
IV. Correction of Presentence Credits
Defendant contends the abstract of judgment must be corrected to show the proper number of days of presentence custody credit. The People properly concede the error.
The oral pronouncement of judgment by the court is the judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471.) The abstract of judgment is not the judgment, but only digests and summarizes the judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa, supra, 14 Cal.3d at p. 471.) An appellate court has inherent power to correct a clerical error on an abstract of judgment. (People v. Mitchell, supra, at p. 185.) At sentencing, the trial court awarded defendant 431 days of custody credit and 64 days of conduct credit, for a total of 495 days credit. The abstract of judgment, however, shows defendant was awarded only 421 days of custody credit and 63 days of conduct credit. We order the abstract corrected to conform to the oral pronouncement of judgment.
The trial court is directed to prepare a corrected abstract of judgment to: (1) reflect that defendant's sentence on Count 1 is a life sentence with a 15-year minimum parole eligibility date plus 25 years to life for the firearm enhancement; (2) strike all references to Penal Code section 664, subdivision (f); and (3) reflect that defendant was awarded 431 days of custody credit and 64 days of conduct credit for a total of 495 days of presentence custody credit. The trial court is further directed to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation and to strike all references to Penal Code section 664, subdivision (f), in the verdict forms and minute orders. In all other respects, the judgment is affirmed.
We concur: BLEASE, Acting P. J. NICHOLSON, J.