(Super. Ct. No. 07HF0815) Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed in part, reversed in part, and remanded.
The opinion of the court was delivered by: Moore, J.
CERTIFIED FOR PUBLICATION
A jury found defendant Leonel Garcia guilty of four counts of attempted murder, three other felonies, and found true gang and personal discharge of a firearm enhancements.*fn1 He appeals contending the court erred in instructing the jury on attempted murder, the evidence is insufficient to support two of the four counts of attempted murder, he was denied a unanimous verdict on six of the seven guilty verdicts, and the court erred in calculating his presentence credits. The Attorney General agrees defendant is entitled to additional presentence credits.
We reverse the convictions on counts one, two, three, four, six, and seven and the true findings on the enhancements attached to those counts because defendant was denied a unanimous verdict by 12 jurors. We affirm defendant's conviction and the gang enhancement on count five: 12 jurors announced their verdict on that count. We do not address defendant's contention that the trial court erred in instructing the jury on the attempted murder charges because the reversal of the attempted murder convictions (counts one through four) renders the issue moot. We do not address defendant's credit calculation argument for the same reason. We do address his sufficiency of the evidence argument due to double jeopardy implications, but find the argument lacks merit.
Garcia was charged in the information with seven charges arising out of an incident on April 18, 2007: four counts of attempted murder (Pen. Code,*fn2 §§ 664, subd. (a), 187, subd. (a); counts one through four), possession of a firearm by a minor (§ 12101, subd. (a)(1); count five), gang member in possession of a loaded firearm in public (former § 12031, subds. (a)(1), (a)(2)(C);*fn3 count six), and active participation in a criminal street gang (§ 186.22, subd. (a); count seven). The information also alleged counts one through six were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and defendant personally discharged a firearm in connection with each of the attempted murders. (§ 12022.53, subd. (c).)
The court excused a juror during deliberations. After the juror was excused and replaced with an alternate, the court was informed the jury had previously reached a verdict on all but one count. The court sealed the verdicts. The newly constituted jury then deliberated and ultimately reached a verdict on the remaining count and its enhancement. Defendant was found guilty on all counts and all enhancements were found true. The court sentenced defendant to 37 years in state prison, consisting of a seven-year (midterm) commitment on count one, and consecutive terms of 10 years and 20 years, respectively, on the gang enhancement (§ 186.22, subd. (b)(1)) and personal discharge of a firearm enhancement (§ 12022.53, subd. (c)) found true in connection with count one. The court imposed concurrent seven-year terms on the three remaining counts of attempted murder, struck the enhancements attached to those counts, and stayed the sentences on the remaining offenses pursuant to section 654.
The relevant facts from the trial are as follows.*fn4 On April 18, 2007, at about 5:30 p.m., off-duty Santa Ana Police Officer Jeffrey Van Es was in a vehicle eastbound on 18th Street and stopped at the intersection of 18th Street and Pomona, when he heard what he believed were two gunshots. He then heard four to six more gunshots in rapid succession, all coming from south of 18th Street. Van Es looked to the south and saw five males running northbound to 18th Street and around the corner and to a bright blue Toyota. Van Es thought the males appeared to be gang members. He said four appeared to be Hispanic, one had darker skin and was possibly Black. The males jumped into the Toyota that appeared to be waiting for them. The Toyota drove eastbound on 18th Street. Van Es called 911 and reported what he observed. The vehicle Van Es was in followed the Toyota.
The Toyota eventually stopped in the street about a mile after a marked police vehicle started following it. There were seven males between the ages of 15 and 20 years old inside the Toyota. The driver, David Ramirez, was a self-admitted active participant of the Fearless Crowd criminal street gang. The right front passenger, Oswald Gomez, was an active participant in Fearless Crowd. Of the five individuals in the backseat, Daniel Saldana was an active participant in the criminal street gang Varrio Little Town, as were Cesar Pedrosa and Ricardo Canela. Armando Dominguez was previously arrested for spray painting Varrio Little Town graffiti. Fearless Crowd and Varrio Little Town are allies. The last one, Michael Seward, was associated with Varrio Chico, a criminal street gang in south Orange County. He had since moved to Costa Mesa. Two folding knives and an 18- to 24-inch aluminum baseball bat were found in the passenger compartment of the car.
A police officer who worked on the gang detail responded to the location of the Toyota. He knew six of the seven occupants. The officer said the territory in which the shooting occurred was claimed by the Puro Maravilla (Maravilla) gang. The occupants of the Toyota were members of Maravilla's rivals. The officer said rivals who enter Maravilla territory armed with weapons could be looking for a violent confrontation, and those who walk in do so on the fringe of the territory, assault someone and get out quickly. According to the gang expert, Benitez and defendant were active participants in Maravilla.
The occupants of the Toyota did not testify. Gabriela S. was the lone eyewitness to the shooting. She lived in the area of the shooting. She was cleaning out her automobile when she heard a male yelling obscenities and looked in his direction. She saw two males, 16 or 17 years old, running. She heard them yell, "come on, come on," in a frightened tone. When the two males were about 13 or 14 feet from her, one of the them, Benitez, shouted and the other, defendant, turned and fired a shot with his arm raised. Benitez put his hands on defendant's shoulders and said, ...