Ct.App. 4/1 D056280 Super. Ct. No. RIF137046 Riverside County
The opinion of the court was delivered by: Liu, J.
Penal Code section 654 provides that a defendant may be punished only once for "[a]n act or omission that is punishable in different ways by different provisions of law." (All statutory references are to the Penal Code.) In each of two separate incidents, defendant Tommy Mesa, a gang member and convicted felon, shot a victim and was convicted of and punished for assault with a firearm, possession of a firearm by a felon, and actively participating in a criminal street gang. As explained below, we hold that on the facts here, punishing defendant for assault with a firearm and for possession of a firearm by a felon precludes additional punishment for actively participating in a criminal street gang.
On the evening of April 27, 2007, Ghalen White was awakened by his son Jeron, who said "a bunch of guys" were "hanging out" in front of their Corona apartment complex. Jeron asked White to go outside with him and his prom date to meet his date's mother. Outside, White saw a group of five or six men, including defendant. He told Jeron and his date to wait near the apartment.
As White walked toward the street, defendant left his group and approached White and asked: "Why are you walking tough in my neighborhood ?" White understood this statement to mean that defendant and his companions were gang members who considered this neighborhood to be their territory. White said he was not from the area. Defendant responded, "But you're still walking tough in my neighborhood." White replied that he was just there for his son's prom, but defendant again said, "You're still walking tough in my neighborhood."
White became concerned and opened the door to his nearby car to "have some kind of cover." When White and defendant were about two car lengths apart, defendant pulled out a gun and pointed it at White. White dove into his car and heard three quick gun shots. White was shot in the side; the bullet traveled through his body and exited the left side of his torso. Defendant looked in the back window of the car and then fled.
Two days later, on April 29, Alvin Pierre rode his bicycle into a shopping center parking lot in Corona. Defendant said to him, "What the fuck are you looking at?" Pierre rode past defendant, got off his bicycle, and tried to ask defendant what he had said. Before Pierre could finish his question, defendant shot Pierre in the groin. The bullet traveled through his scrotum and exited his right leg. At the hospital, Pierre's left testicle had to be removed.
Defendant was arrested in his home the next day. He was found wearing a bulletproof vest, hiding in a closet. He possessed the handgun that ballistics analysis showed had been used in both shootings, in addition to a rifle and ammunition.
The investigating detective testified as an expert regarding criminal street gangs. According to the detective, defendant was a member of the Coroneros clique of the Corona Varios Locos (CVL) criminal street gang. CVL was the predominant Hispanic gang in Corona with about 220 members. Both shootings in this case took place within blocks of Fourth Street, the portion of Corona considered to be the hub of CVL criminal activity. Defendant had at least five tattoos on his face and neck that indicated he was a CVL member. CVL's criminal activities include attempted murders, assaults with deadly weapons, and possession of firearms. Gangs seek to obtain "respect" primarily by committing crimes and generating fear within the community. Gangs also seek to instill fear in their communities in order to deter witnesses to the gang's crimes from coming forward.
Defendant testified and admitted that he was a gang member and that he shot both victims. But he claimed he shot White accidently and denied that either shooting had anything to do with the gang.
As relevant here, the jury found defendant guilty of three offenses for each shooting: assault with a firearm (§ 245, subd. (a)(2)) with an enhancement for committing the assault for the benefit of a gang (§ 186.22, subd. (b)), possession of a firearm by a felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)), and actively participating in a criminal street gang (§ 186.22, subd. (a)). For the two assaults, defendant was sentenced to five years in prison plus a 10-year gang enhancement in addition to other substantial enhancements. For the firearm possession offenses, defendant was sentenced to two consecutive terms of eight months in prison. And for the gang crimes, defendant was sentenced to two consecutive terms of eight months in prison. Defendant's total prison sentence was 39 years, eight months.
Penal Code section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." In each of two separate incidents, defendant, who was a gang member and convicted felon, shot an innocent victim. For each incident, defendant was punished three times: for assault with a firearm, for possession of a firearm by a felon, and for participating in a criminal street gang. Defendant argues that section 654 precludes punishment for participating in a criminal street gang in addition to his punishments for assault with a firearm and possession of a firearm by a felon.
"Since its origin in 1872, the Penal Code has prohibited multiple punishment for a single 'act or omission.' (§ 654.) Although our interpretation of that provision has varied somewhat over the years, we have consistently held that it bars imposing [multiple] sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code. [Citation.] Since 1962 we have interpreted section 654 to allow multiple convictions arising out of a single act or omission, but to bar multiple punishment for those convictions. [Citations.] . . . [E]xecution of the sentence for one of the offenses must be stayed." (People v. Siko (1988) 45 Cal.3d 820, 823 (Siko); People v. Latimer (1993) 5 Cal.4th 1203, 1208 [" 'Insofar as only a single act is charged as the basis for the conviction . . . , the defendant can be punished only once.' [Citation.]"]; People v. Kynette (1940) 15 Cal.2d 731, 762 [holding that § 654 precluded multiple punishment for attempted murder, assault with intent to murder, and malicious use of explosives because "all three offenses though involving variable elements are traceable to and are the direct result of the placing of a bomb in the automobile of the victim"], overruled on another ground in People v. Bonelli (1958) 50 Cal.2d 190, 197.)
Whether multiple convictions are based upon a single act is determined by examining the facts of the case. The defendant in Siko forcibly raped and sodomized a nine-year-old girl and was convicted of rape, sodomy, and lewd conduct with a child under 14 years of age. This court held that the defendant could not be punished for both rape and lewd conduct based upon a single act: "[I]f a person rapes a 13-year-old, he can be convicted of both rape and lewd conduct with a child on the basis of that single act, but he cannot be punished for both offenses . . . ." (Siko, supra, 45 Cal.3d at p. 823.) We rejected the People's argument that section 654's ban on multiple punishment for a single act or omission was not violated "because defendant committed one or more lewd acts other than the rape and sodomy." (Siko, at p. 825.) We concluded that "a review of the record demonstrates the contrary. . . . [T]he charging instrument and the verdict both identify the lewd conduct as consisting of the rape and sodomy rather than any other act. Nor did anything in the prosecutor's closing argument or in the court's instructions suggest any different emphasis." (Id. at p. 826.)
This court also relied upon the state of the evidence in People v. Tideman (1962) 57 Cal.2d 574, 584, to decide that section 654 prohibited multiple punishment for unlawful abortion and murder because the two convictions were based upon a single act. We observed that the defendant's "single act was intended to unlawfully abort the victim. He admitted that fact by his plea of guilty. But that act also, it appears from the evidence, caused the victim's death. Thus defendant's criminal act is exactly that which calls for application of section 654: 'An act . . . which is made punishable in different ways by different provisions of this code . . . may be punished under either of such provisions, but in no case . . . under more than one. . . .' " (Tideman, at p. 584, italics added.)
Here, defendant was convicted of violating section 186.22, subdivision (a), which is part of the California Street Terrorism Enforcement and Prevention Act. (§ 186.20 et seq., added by Stats.1988, ch. 1242, § 1, pp. 4127-4129.) The Legislature passed the act in order "to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs." (§ 186.21.) In considering the bill, the Legislature was careful to observe that "mere membership [in a gang] is not punishable under the bill. The United States Supreme Court has held that mere association with a group cannot be punished unless there is proof that the defendant knows of and intends to further its illegal aims. (Scales v. United States (1961) 367 U.S. 203, 229). This bill imposes sanctions on active participation in the gang only when the defendant knows about and ...