APPEALS from judgments of the Superior Court of Los Angeles County, Eric C. Taylor, Judge. (Los Angeles County Super. Ct. No. YA076351)
The opinion of the court was delivered by: Turner, P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Judgments of conviction affirmed; indeterminate sentences affirmed; all other sentences reversed.
A jury convicted two brothers, defendants, Jose and David Vega, of
two counts of attempted voluntary manslaughter (Pen. Code,*fn2
§§ 664, 192, subd. (a)) (counts 1 and 2). In addition,
defendants were each convicted of a single count of shooting at an
occupied vehicle (§ 246) (count 3). The jury found the crimes were
committed for the benefit of a criminal street gang. (§ 186.22, subd.
(b)(1).) The jury further found as to David*fn3 : a
principal was armed (§ 12022, subd. (a)(1)) (counts 1 and 2); he
personally used a firearm (§ 12022.5) (counts 1 and 2); and he
inflicted great bodily injury (§ 12022.7, subd. (a)) (count 1). David
was sentenced to prison for a life term with a 15-year minimum term
consecutive to a determinate term of 21 years, 4 months. Jose
received a life term with a 15-year minimum term consecutive to a
determinate term of 9 years.
In the published portion of the opinion, we discuss the question of certain stay orders which were entered. In addition, we address the effect of section 1170.1, subdivision (f) on the imposition of a firearm enhancement on David on count 1. We affirm the judgments of conviction in their entirety. We affirm the count 3 indeterminate sentences in their entirety. But we reverse the counts 1 and 2 determinate terms to permit the trial court to restructure its determinate sentencing selections.
We view the evidence in the light most favorable to the judgment. (People v. Griffin (2004) 33 Cal.4th 1015, 1028; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) On October 16, 2009, at 1:40 p.m., defendants drove to disputed gang territory. They were accompanied by a fellow gang member, Gascon Veliz. Mr. Veliz's sister Erica was Jose's girlfriend. Erica Veliz and Jose had a child together.
Mr. Veliz drove to the intersection of Hawthorne Boulevard and 111th Street. Defendants exited the automobile. Mr. Veliz remained in the car. He waited in a commuter parking lot across the street from a high school. Defendants attacked two rival gang members, Luis Rivera and Juan Crespo, as they walked down the street. Mr. Crespo spoke to a gang investigator. Mr. Crespo said he was attacked from behind by unknown assailants. Mr. Crespo was struck in the back of his head. The four men engaged in a fistfight. When Mr. Rivera ran, defendants chased him. Mr. Rivera fell from the sidewalk into the street. David fired a 22-caliber revolver at Mr. Rivera four times. The shots were fired while Mr. Rivera lay on the ground. One bullet hit Mr. Rivera in the leg. A second bullet struck an occupied automobile that was stopped at a traffic light. It wedged in the passenger door. Had the bullet penetrated the door, it would have struck the passenger, Vandra Hilliard, in her torso.
The two victims ran. Mr. Rivera was "hobbling" as he fled. Defendants chased the victims, then ran to Mr. Veliz's waiting car. One minute and 14 seconds after Mr. Veliz's car entered the commuter parking lot, the three gang members drove away. David threw the gun from the car while still in the parking lot. Sheriff's deputies later recovered the handgun. When Mr. Veliz's car became stuck in traffic, defendants fled on foot. They were apprehended in the vicinity of the shootings by a deputy with a dog. The victims were briefly detained. No weapons were found on their persons.
The shooting took place across the street from a high school. Students were being dismissed at the time. There were many people in the area. Students were leaving and parents were picking them up. Deputy Larry Waldie testified he saw "a crowd of kids"; "kids were just all over the corners." However, no one saw how the fistfight started. One witness, Damian Hidalgo, saw defendants, Mr. Rivera and Mr. Crespo arguing before the shooting. Mr. Hidalgo did not hear anybody shout any gang slogans.
David was 16 years old at the time of the shooting. Jose was 18. Two witnesses, Deputies Waldie and Ramon Gonzalez, identified Jose--not David--as the person who fired the shots. At trial, however, David testified he had the weapon.
Sergeant Mark Marbach testified concerning defendants' gang. Sergeant Marbach was a 20-year veteran of the sheriff's department. At the time of the present incident, he had been a gang investigator for 9 years. Sergeant Marbach explained that a reputation for violence within the community and with rival gang members is important to a gang. In order to carry out their criminal activities, gangs need to be respected and feared. When community members fear a gang, they are reluctant to report crime or to testify against gang members. If rival gang members do not fear a gang, they will challenge and disrespect the gang. They will take over the gang's territory. Moreover, the necessary fear and respect is achieved through violent acts. Committing violent crimes in broad daylight in front of witnesses is an effective way to breed fear and garner respect. When rival gangs attempt to expand their territory, when they challenge and disrespect another gang, violence results. When an individual commits a violent act, it enhances both the individual's and the gang's reputation.
Territory is also important to gangs. Gangs will try to expand their borders. They will go into a disputed area and lay claim to it. Further, gang fights often lead to shootings. Sergeant Marbach testified: "As gang members, if you're going out and seeking rivals, it's very common that someone within the group is going to be armed. If you're seeking out rival gang members, you're going into rival territory and it's reasonable to believe that those rivals will also be armed."
Sergeant Marbach was familiar with defendants' gang, which was a violent street gang. At the time of the present shootings, the gang had roughly 500 documented members. The gang's primary activities were murder, attempted murder, drive-by shootings, assaults, fistfights, stabbings, robberies, witness intimidation, weapons possession, extortion, automobile theft and drug possession and sales. The present shooting took place in a disputed area marked by rival gang graffiti. Sergeant Marbach had investigated fights involving defendants' gang that led to shootings. It was common for members of defendants' gang to confront rival gang members, to chase them down and to shoot them. Around the time of the present crimes, Sergeant Marbach had investigated a similar case involving defendants' gang. A group of gang members became aware that rival gang members were in a particular area. They drove to that area and confronted the rival gang members. Defendants' gang exchanged slogans and challenges, then chased the rival gang members and shot one of them.
In response to hypothetical questions based on the facts of this case, Sergeant Marbach testified defendants committed the present offenses to benefit their gang. Sergeant Marbach based his opinion on the following. Defendants confronted and engaged in a violent altercation with rival gang members in broad daylight, in the presence of numerous witnesses. The incident occurred in defendants' gang's or in disputed territory. The crime had both individual and gang benefits. David used a weapon and shot a rival gang member. This bolstered David's individual status within the gang. The crime also reinforced the atmosphere of fear in the community. This fear allows the gang to carry on its illegal activities. And assaulting rival gang members bolstered the gang's reputation. It also served to claim the gang's territory.
[Part III(A) is deleted from publication. See post at page 10 where ...