Opinion
E052704
11-20-2012
THE PEOPLE, Plaintiff and Respondent, v. JORGE ADRIAN GONZALEZ et al. Defendants and Appellants.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Adrian Gonzalez. Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant Armando Manuel Aispuro.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
(Super.Ct.No. FVI1000293)
OPINION
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Convictions affirmed; remanded for resentencing.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Adrian Gonzalez.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant Armando Manuel Aispuro.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Jorge Adrian Gonzalez appeals his conviction of first degree murder (Pen. Code 187, subd. (a), count 1), being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 2), and gang participation (§ 186.22, subd. (a), count 3) along with true findings on associated enhancements. Defendant Armando Aispuro appeals his conviction of first degree murder (§ 187, subd. (a)) and gang participation (§ 186.22, subd. (a)), along with true findings on associated enhancements.
All further statutory references are to the Penal Code unless otherwise indicated.
Both defendants contend the trial court's instruction that all principals are equally guilty kept the jury from considering evidence about their subjective mental state, which could have reduced the murder to second degree. Gonzalez further contends: (1) the trial court erred in failing to stay his sentence for gang participation under section 654; (2) the additional term of 25 years to life under section 12022.53, subdivision (d) violated principles of double jeopardy; and (3) the abstract of judgment must be modified to reflect that the trial court struck rather than stayed the gang enhancement as to count 1. Aispuro further contends (1) the court's instruction to the jury as to gang participation that the state did not need to prove motive undercut the state's burden of proof beyond a reasonable doubt, and (2) the trial court violated his right to a jury trial by permitting the jury to convict him of murder without agreeing on the facts that comprised the offense. Defendants join each other's arguments as applicable and beneficial.
The People contend the trial court erred in (1) failing to impose a five-year enhancement for Aispuro's prior serious felony conviction (§ 667, subd. (a)); (2) sentencing Aispuro to one year in prison for the arming enhancement (§ 12022, subd. (a)(1)) as to the murder because the court also imposed a 25-years-to-life enhancement on the murder (§ 12022.53, subds. (d), (e)); and (3) imposing and staying a 10-year term for the gang enhancement (§ 186.22, subd. (b)) for the murder.
We affirm the convictions but remand for resentencing.
II. FACTS AND PROCEDURAL BACKGROUND
Defendants were tried together before separate juries.
A. Prosecution Evidence Heard by Both Juries
In February 2010, Aispuro shared a room at a motel in Victorville with Yvette Perez, Katherine Fox, and Fox's young son. Nelson Mendoza was having a sexual relationship with Perez, and he sometimes stayed the night.
On February 4, Mendoza, Fox, Timothy Fuller, and Fuller's girlfriend, Kristy, were all "hanging out" in the room throughout that day, and they were using methamphetamine. The next morning, February 5, Perez, Fuller, Kristy, Aispuro, and Mendoza, but not Gonzalez, were in the room. Around 10:00 or 10:30, Aispuro and Mendoza left in Aispuro's Jeep Cherokee with Aispuro driving; Fuller thought they were arguing before they left. Fuller and Kristy also left and drove to a gas station adjacent to the motel; Aispuro pulled into the gas station and asked Fuller for some gas money. Surveillance tapes from the gas station showed that the Jeep returned less than an hour later, and the passenger, Mendoza, purchased something at the convenience store. The driver could not be identified from the tapes.
Later that day, Aispuro returned to the motel room, took a shower, put his clothes in a duffle bag, and then left with Perez. Perez told Fox something had happened to Mendoza.
On February 5, Mendoza was found lying on the ground behind trailers near a vacant lot at Yates and Nassau in Victorville with a gunshot wound in the back of his head. He was taken to a hospital, where he died of the wound. There was stippling from powder burns on the back of his head.
Near where Mendoza was found, the police saw tire impressions consistent with the tires on Aispuro's Jeep. The police also saw tire tracks, blood stains, and clothing in a nearby dirt field.
A few days later, police found car floor mats, blood-stained work boots, a towel, a T-shirt, and a pair of boxer shorts on a hill in Apple Valley. The clothing had apparent blood stains and was wet and smelled of bleach. The officers also found a sonogram image with the name Stephanie Gutierrez on it; Gutierrez was pregnant with Gonzalez's child at the time of the murder. The officers also found a piece of fabric that appeared to be a belt loop from a pair of jeans. The jeans Mendoza was wearing had a missing belt loop. The police also observed tire impressions consistent with those found near Mendoza.
On February 14, Aispuro's Jeep was found parked in the desert area north of Adelanto. The tires from the Jeep could have made the impressions left near Nassau. The carpet had been removed from the passenger compartment and other components, including headrests, had been removed. The windows and painted surfaces appeared to have been wiped down with liquid, but stains that resembled blood were found on the front and back of the passenger seat. There was a bullet hole in the glove box lid and an expended bullet inside the glove box.
A gang expert testified to his opinion that Gonzalez and Aispuro were associates of East Side Victoria (ESV), a criminal street gang in the high desert. The expert stated his opinion that the murder was committed at the direction of ESV, and he believed Aispuro had been ordered to bring Mendoza to a specific location and there had been an order to kill him. The expert believed the murder benefited the gang because Mendoza was a nuisance and an obstacle to the gang's methamphetamine sales.
Because neither defendant challenges the sufficiency of the evidence to support the true findings on the gang charge and allegations, the gang evidence is set forth only summarily.
B. Prosecution Evidence Heard Only by Gonzalez's Jury
In an interview with detectives, Gonzalez's friend, Felicia Torres, said Gonzalez had told her on February 6 that he had shot Mendoza in the head while he (Gonzalez) was sitting in the back seat of Aispuro's Jeep, and Aispuro was driving. At trial, Torres denied making the statements. A tape of the interview was played for the jury. After the tape was played, Torres said she had lied because the detectives were "bugging [her], and [she] just wanted them to leave [her] alone." She also testified she had made the statements because she was mad at Gonzalez and because the detectives had threatened to take her baby away.
Sylvia Gonzales (Sylvia) told a detective that around February 6, an ESV gang member, "Madman," had asked her to pick up Gonzalez. "Madman" told her Gonzalez had been acting strange. Gonzalez told her, "That fool got what he deserves." Sylvia thought he was referring to Mendoza. At trial, she denied making those statements. She knew Gonzalez and Mendoza did not get along. On February 7, Sylvia told Gonzalez she thought Mendoza might still be alive and the hospital was withholding his identity. Gonzalez replied that if Mendoza were alive, he would be brain dead, because Gonzalez had seen brain matter after he shot Mendoza in the back of the head.
Gonzalez was arrested on February 9. In an interview, he told sheriff's deputies that he knew Mendoza, that Mendoza had a bad reputation, and Mendoza had been "rude and disrespectful to him." A year before the murder, Gonzalez had tried to call a woman on the phone, and Mendoza had answered and asked, "Who the fuck is this," and had called Gonzalez a "bitch." Gonzalez claimed not to know Aispuro but later admitted he knew Aispuro and wanted to keep him out of everything.
Gonzalez eventually admitted he had shot Mendoza but that the shooting was accidental and unintentional. At the end of the interview, Gonzalez stated Mendoza "got what he deserve[d], accident or not."
C. Prosecution Evidence Heard Only by Aispuro's Jury
The jury watched a videotape of Aispuro's interrogation by the police. Aispuro said he had last seen Mendoza around February 5 at the motel, and he really did not know the guy but had only gotten high with him a couple of times. Around 8:00 a.m., Aispuro gave Mendoza a ride to Mendoza's girlfriend's house, but Aispuro did not know the girlfriend's name. He had returned to the motel to take Perez to a methadone clinic, and after dropping her off, had gone to a friend's house to get more dope. He then went to meet a guy named "Joe" and sold his Jeep to him. Aispuro's mother picked him up, and his stepfather took him to Mexico, where the family had planned for him to participate in a drug treatment program. He was located there and brought back to San Bernardino for questioning.
Aispuro was told the surveillance tape from gas station did not show him there anytime near 8:00 a.m. Aispuro then said he had been scared and had gone to Mexico to hide from "the person."
Aispuro finally told the police he and Mendoza had gone to a liquor store to buy snacks and drinks and had met Gonzalez there; he knew Gonzalez only by his first name and knew he was "bad business." Gonzalez got in the back seat with Aispuro and Mendoza and asked for a ride to his house. Aispuro knew Gonzalez had a problem with Mendoza but did not think anything would happen. When they were driving, Gonzalez told Aispuro "to look this way or whatever." Aispuro looked the other way, heard a gunshot, and then saw blood. Gonzalez pointed the gun at him and told him to keep driving. Gonzalez directed Aispuro to drive into a dirt field, where he took Mendoza out of the car and then hopped back in next to Aispuro. Aispuro hopped out, leaving the keys in the Jeep, and started running with Gonzalez chasing him. A highway patrol car went by, and Gonzalez threw the gun away. Gonzalez made a phone call, a truck pulled up, and he and Gonzalez hopped in the back. The truck dropped Aispuro off at a gas station. Gonzalez told Aispuro to discard the clothes he had been wearing in the desert and said he would take care of the Jeep. Aispuro did not call the police because Gonzalez knew where his family lived and where his father worked. Aispuro went to the motel and told Perez what had happened. He showered, took some drugs, and went home. His mother and stepfather took him to Mexico.
Aispuro eventually admitted Gonzalez knew Mendoza was in the motel room that morning, and that Gonzalez had called Aispuro and asked if he was still with Mendoza. He wanted Aispuro to bring "that fool" to a park, and Gonzalez said he wanted to beat Mendoza's ass because Mendoza had called him a bitch on the phone. Aispuro thought Gonzalez would give him some drugs in exchange for bringing Mendoza to the park. Aispuro knew Gonzalez carried a gun.
D. Defense
Neither defendant presented an affirmative defense. Gonzalez's counsel argued the shooting had been an accident. Aispuro's counsel argued Aispuro did not know Gonzalez planned to kill Mendoza.
E. Verdicts and Sentences
The jury found Gonzalez guilty of first degree murder (§ 187, subd. (a), count 1); being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 2); and gang participation (§ 186.22, subd. (a), count 3); and found true firearm allegations (§ 12022, subd. (a), § 12022.5, subd. (a), § 12022.53, subds. (a), (d), (e)(1)); and gang allegations (§ 186.22, subd. (b)(1)). The jury found Aispuro guilty of murder (§ 187, subd. (a)) and gang participation (§ 186.22, subd. (a)), and found true firearm allegations (§ 12022, subd. (a), § 12022.53, subds. (d), (e)(1)) and a gang allegation (§ 186.22, subd. (b)(1)).
Gonzalez admitted a prior prison term allegation (§ 667.5, subd. (b)), and the trial court struck a second prior prison term allegation. The trial court found true allegations that Aispuro had a prior serious felony conviction (§ 667, subd. (a)), a prior strike conviction (§ 1170.12, subds. (a)-(d)), and two prison term prior convictions (§ 667.5, subd. (b)).
The trial court sentenced Aispuro to 25 years to life for count 1 and doubled the term because of his prior strike. The court imposed a consecutive 25-year-to-life enhancement for gun use (§ 12022.53, subd. (d) and (e)(1)), imposed and stayed a six-year term for count 3, and imposed a one-year term for the gun-use enhancement (§ 12022, subd. (a)(1)) as to that count. Finally, the court imposed one-year terms for each of the section 667.5 allegations.
The trial court sentenced Gonzalez to a total indeterminate term of 18 years eight months, plus an indeterminate term of 50 years to life. Specifically, the court imposed the aggravated term of three years for count 3, a consecutive aggravated term of 10 years for gun use (§ 12022.5, subd. (a)) as to that count, a consecutive term of eight months for count 2, a consecutive four-year enhancement for the gang allegation (§ 186.22, subd. (b)(1)) as to that count, a consecutive term of 25 years to life for count 1, and a consecutive term of 25 years to life for the gun use (§ 12022.53, subd. (d)) as to that count. Finally, the court imposed a consecutive one-year term for the prison prior.
III. DISCUSSION
A. Jury Instructions.
Defendants contend the trial court's instruction that all principals are equally guilty kept the jury from considering evidence about their subjective mental states which could have reduced the murder to second degree. Defendants further contend the court's instruction to the jury as to gang participation that the state did not need to prove motive undercut the state's burden of proof beyond a reasonable doubt.
1. Forfeiture
The People assert that defendants forfeited their challenges to the instructions by failing to raise their objections in the trial court. Because (1) we review the merits of an claim of instructional error that involves a defendant's substantial rights (§ 1259); (2) defendants argue, in the alternative, that their trial counsel were ineffective in failing to object to the instruction; and (3) the People have addressed the issues on the merits, we will reach the merits of the issues.
2. CALCRIM No. 400
The trial court instructed the jury with a former version of CALCRIM No. 400, as follows: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." (Italics added.) The italicized language was criticized as potentially misleading in several published decisions (People v. Loza (2012) 207 Cal.App.4th 332, 348-350 (Loza); People v. Lopez (2011) 198 Cal.App.4th 1106, 1118-1119 (Lopez); People v. Canizalez (2011) 197 Cal.App.4th 832, 847-853 (Canizalez); People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 (Samaniego);see also People v. Nero (2010) 181 Cal.App.4th 504, 517-518 (Nero) [addressing equivalent language in CALJIC No. 3.00]). The current version of CALCRIM No. 400 omits the word "equally."
The relevant portion of CALCRIM No. 400 now reads, "A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator." (Judicial Council of Cal., Crim. Jury Instns. (2012) p. 167.)
In People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), the California Supreme Court held that an aider and abettor may be guilty of a greater crime than the perpetrator. (Id. at p. 1122.) The reasoning of McCoy, i.e., that the mens rea of an aider and abettor is personal (ibid.),also means that an aider and abettor may be guilty of a lesser crime than the perpetrator. (Samaniego, supra, 172 Cal.App.4th at p. 1164.)
(a) Harmless error—Chapman test
If we assume for purposes of argument that former CALCRIM No. 400 was potentially misleading, we evaluate any error that omits or misdescribes an element of an offense under the harmless beyond a reasonable doubt test set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
(b) Harmless error—Gonzalez
Gonzalez posits that "consistent with the prosecution's theory of evidence, [his] jury could find that the incident that festered over a year [Mendoza's having called him a "bitch" in a telephone call] affected [his] mental state and could reduce the degree of murder." The prosecutor's argument was directed toward Gonzalez's motive for committing a willful, deliberate, premeditated murder: "No one liked [Mendoza], and [Gonzalez] specifically added it up to that, well, he called me a bitch sometime in the past. I'm just going to take care of this guy. He's a problem to all of us. No one likes him. We'll take him out." We reject the premise underlying Gonzalez's argument that a motive for revenge equates with provocation sufficient to reduce a killing from first degree to second degree murder, particularly when the evidence shows the underlying conduct of the victim occurred months before the killing.
If heat of passion arising from provocation precludes premeditation and deliberation, murder may be reduced from first degree to second degree. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295 [Fourth Dist., Div. Two].) The test for such provocation is subjective. (Id. at p. 1296.) In Fitzpatrick, the court explained that "[t]he issue is whether the provocation precluded the defendant from deliberating. [Citation.] This requires a determination of the defendant's subjective state." Under that test, "'where the evidence of provocation would justify a jury determination that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately, the trial court is required to give instructions on second degree murder under this theory. The fact that heated words were exchanged or a physical struggle took place between the victim and the accused before the fatality may be sufficient to raise a reasonable doubt in the minds of the jurors regarding whether the accused planned the killing in advance.' [Citation.]" (Id. at pp. 1295-1296.) In People v. Steele (2002) 27 Cal.4th 1230, 1253, for example, the defendant introduced "evidence that he was intoxicated, that he suffered various mental deficiencies, that he had a psychological dysfunction due to traumatic experience in the Vietnam War, and that he just 'snapped' when he heard [a] helicopter . . . ." The court stated that evidence "may have satisfied the subjective element of heat of passion." (Ibid.)
In People v. Avila (2009) 46 Cal.4th 680, 707, in contrast, the court held there was no error in failing to instruct the jury "that it could consider whether evidence of provocation not sufficient to reduce the homicide to manslaughter had any bearing on whether defendant killed with premeditation and deliberation" because there was no substantial evidence of provocation. In that case, defendant and others started walking toward a group of friends, one of whom yelled out "Carmelos," which may have been a reference to a gang. The court stated, "Even assuming it was reference to a gang, and that a gang member might have perceived the statement as some sort of a challenge, the requisite provocation [to warrant an instruction on voluntary manslaughter] must be one that would provoke an ordinarily reasonable person. [Citation.] Reasonable people do not become homicidally enraged when hearing the term 'Carmelos,' even if it is understood as a fleeting gang reference or challenge." (Id. at p. 706.) Unlike in Avila, Gonzalez's jury was instructed that provocation could reduce first degree murder to second degree murder; however, the jury rejected that theory.
Gonzalez's theory of the case at trial was that the shooting was an accident: "We know Mr. Mendoza was shot. We know my client pulled the trigger. How do we know that? My client said it. We also know that my client said it was an accident." Counsel further argued that Gonzalez had told Torres, "Yes, I shot him, but I didn't mean to. He had nothing to gain at that point when he's talking to Felicia Torres. He tells her he shot somebody, but I didn't mean to do it. So it's not all of a sudden he comes up with it's an accident." Unlike in People v. Steele, supra, 27 Cal.4th at p. 1253, in which the defendant introduced evidence relevant to the jury's determination of his subjective mental state, defendant presented no such evidence, and the theory of provocation would have been fundamentally inconsistent with his defense that the shooting was accidental.
Finally, Gonzalez's jury found true the allegation that he had personally and intentionally discharged a firearm and proximately caused Mendoza's death. (§ 12022.53, subd. (d).) Thus, Gonzalez's jury necessarily found him guilty as a direct perpetrator rather than as an aider and abettor, and his jury would have had no reason to consider Aispuro's mental state and compare it to that of Gonzalez.
We conclude any error in the former version of CALCRIM No. 400 was harmless beyond a reasonable doubt as to Gonzalez. (Chapman, supra, 386 U.S. at p. 24.)
(c) Harmless error—Aispuro
For Aispuro's jury to have found him guilty as an aider and abettor of both murder and gang participation they were required to find that he "knew that the perpetrator intended to commit the crime," "intended to aid and abet the perpetrator in committing the crime," and "[did,] in fact, aid, facilitate, promote, encourage or instigate the perpetrator's commission of that crime." The jury necessarily resolved the issue of whether he harbored the requisite mental state under other properly given instructions. Specifically, CALCRIM Nos. 520 and 521 instructed the jury about the need to prove malice aforethought for murder and the mental state required for first degree premeditated murder and lying-in-wait murder.
In Nero, a brother and sister were tried for murder based on a stabbing by the brother. The prosecution's theory was that the sister had aided and abetted the murder by handing the brother the knife. During deliberations, the jury asked if it could find an aider and abettor less culpable than the direct perpetrator, and the court repeated the instruction that aider and abettors and direct perpetrators are equally guilty. (Nero, supra, 181 Cal.App.4th at pp. 510-512.) The court found prejudicial error as to the sister, but not to the brother, in both CALJIC No. 3.00 [which used the same "equally guilty" language as former CALCRIM No. 400] and in the trial court's response to the jury's questions. (Nero, supra, at pp. 518-519.)
In Loza, a husband and wife were tried together for the murder of their landlord's boyfriend following a quarrel. (Loza, supra, 207 Cal.App.4th at pp. 337-340.) During a fight, both the husband and the victim had been shot, both by the husband's gun. (Id. at p. 340.) The husband hit the victim with the gun, rendering him unconscious. When the victim awoke, he started screaming, and the husband wrapped duct tape around his mouth, dragged him into the trunk of a car, drove a few miles, and dumped him. The husband was not sure if the victim was then still alive. (Ibid.)While the fighting had been going on, the wife told a neighbor the victim was shooting at squirrels. (Id. at p. 338.) One of the prosecutor 's theories at trial was that the wife knew her husband planned to kill the victim, had covered up the killing by telling a neighbor the victim had been shooting at squirrels, must have helped the husband lift the victim into the car trunk, and later fabricated a story explaining the victim's disappearance. (Id. at pp. 360-361.) The court held that the former version of CALCRIM No. 400 was "generally accurate, but potentially incomplete in this case since there was evidence from which the jury could have concluded that [the wife] had a mental state different from [the husband's] with respect to [the victim's killing] . . . ." (Loza, supra, at p. 350.) The court further held that the wife's counsel had provided ineffective assistance in failing to request a modification of CALCRIM No. 400 and in failing to object when the trial court responded to a jury question about aider and abettor liability by merely telling the jury to apply the evidence to the law as the jury had been instructed. (Loza, supra, at pp. 349-356.)
To sum up, in both Nero and Loza, the courts found reversible error because the juries specifically asked in the defendants' joint trials if they could find one defendant guilty as an aider and abettor of a lesser offense than the perpetrator. (Nero, supra, 181 Cal.App.4th at pp. 518-519; Loza, supra, 207 Cal.App.4th at pp. 355-357.) In both cases, the trial courts had responded by repeating the "equally guilty" language of former CALCRIM No. 400. (Nero, supra, at pp. 518-519; Loza, supra, at pp. 355-357.) Here, the jury did not ask any similar questions indicating uncertainty. Moreover, although defendants were tried together, they had separate juries. Thus, unlike the situations in Nero and Loza, Aispuro's jury was not faced with the issue of determining Gonzalez's and Aispuro's comparative guilt. We therefore conclude any error in instructing the jury with former CALCRIM No. 400 was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
3. CALCRIM No. 370
(a) Additional background
The trial court instructed the jury with CALCRIM No. 370 on motive as follows: "The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty." The trial court also instructed the jury with CALCRIM No. 1400 on the crime of gang participation (§ 186.22, subd. (a)) as follows: "To prove that a defendant is guilty of [gang participation], the People must prove that[:] [¶] 1. The defendant actively participated in a criminal street gang; [¶] 2. When the defendant participated in the gang, he knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; and [¶] 3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by: [¶] (a) Directly and actively committing a felony offense; or [¶] (b) Aiding and abetting a felony offense."
(b) Analysis
Defendants argue that because motive is "effectively" an element of the gang participation charge, instructing the jury with CALCRIM No 370 lowered the prosecution's burden of proof as to that charge. As defendants acknowledge, however, the court in People v. Fuentes (2009) 171 Cal.App.4th 1133, rejected the same challenge to CALCRIM No. 370 that defendants raise here. We agree with the Fuentes court's reasoning: "An intent to further criminal gang activity is no more a 'motive' in legal terms than is any other specific intent. We do not call a premeditated murderer's intent to kill a 'motive,' though his action is motivated by a desire to cause the victim's death. Combined, the instructions here told the jury the prosecution must prove that [the defendant] intended to further gang activity but need not show what motivated his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it." (Fuentes, supra, at pp. 1139-1140.) We therefore reject defendants' argument.
B. Section 654
Gonzalez contends the trial court erred in failing to stay his sentence for gang participation (§ 186.22, subd. (a)) under section 654.
Following the completion of briefing in this case, our Supreme Court issued its opinion in People v. Mesa (2012) 54 Cal.4th 191 (Mesa). In that case, in each of two separate incidents, the defendant shot a victim and was convicted of and punished for assault with a firearm, possession of a firearm by a felon, and gang participation (§ 186.22, subd. (a)). (Mesa, supra, at p. 193.) The court held that, under section 654, the punishments for assault with a firearm and for possession of a firearm by a felon precluded additional punishment for gang participation under section 186.22, subdivision (a). (Mesa, supra, at p. 193.) The court explained, "Our case law has found multiple criminal objectives to be a predicate for multiple punishment only in circumstances that involve, or arguably involve, multiple acts. The rule does not apply where, as here . . . the multiple convictions at issue were indisputably based upon a single act. (Id. at p. 199.) The court further reasoned that the separate sentences for the gang participation crime violated section 654 because they punished the defendant a second time either for the assault with a firearm or for possession of a firearm by a felon. (Mesa, supra, at p. 199.)
Here, the gang participation charge was based on the murder charged in count 1 and also on the possession of a firearm by a felon charged in count 2. We therefore conclude Gonzalez's sentence for count 3 should be stayed under section 654. (Mesa, supra, 54 Cal.4th at p. 199.)
C. Weapon Use Enhancement
Defendants contend their additional term of 25 years to life under section 12022.53, subdivision (d) violated principles of double jeopardy. Defendants raise the point to preserve it for later review, recognizing that the California Supreme Court has repeatedly rejected multiple-conviction and double jeopardy challenges to enhancements under that section (e.g., People v. Sloan (2007) 42 Cal.4th 110, 115-123; People v. Izaguirre (2007) 42 Cal.4th 126, 130-134; People v. Palacios (2007) 41 Cal.4th 720, 725-733), and this court is bound by those decisions (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). We reject defendants' challenge for the reasons stated in those cases.
D. Abstract of Judgment
Gonzalez contends the abstract of judgment must be modified to reflect that the trial court struck rather than stayed the gang enhancement (§ 186.22, subd. (b)) as to count 1. The People contend the trial court lacked the authority to strike the alternative penalty prescribed by section 186.22, subdivision (b)(5).
1. Additional Background
At the sentencing hearing, the trial court sentenced Gonzalez to 25 years to life for the murder in count 1 and imposed a consecutive 25-years-to-life gun discharge enhancement (§ 12022.53, subd. (d).) The trial court then stated, "The allegation of street gang participation in violation of Section 186.22(b)(1) of the Penal Code found true, with the allegation of commission of felony for the benefit of a street gang in violation of Section 186.22(b)(4) of the Penal Code found true, for 15 years to life stricken pursuant to Penal Code Section 186.22(g)." The prosecutor did not object or request a statement of reasons.
2. Analysis
In People v. Lopez (2005) 34 Cal.4th 1002, the court held that subdivision (b) of section 186.22 establishes alternative methods for punishing persons who committed crimes for the benefit of gangs. When a defendant commits a violent felony punishable by imprisonment for life, section 186.22, subdivision (b)(5), which provides for a minimum term of 15 years before the defendant may be considered for parole, is the applicable alternative. (Lopez, supra, at pp. 1006-1011.)
Gonzalez contends the prosecutor's failure to object at trial forfeited any objection to the trial court's exercising discretion to strike the enhancement under section 186.22, subdivision (g).) However, the trial court had no discretion. In People v. Campos (2011) 196 Cal.App.4th 438, 454, the court stated, "[S]ection 186.22, subdivision (g) does not authorize courts to refuse to impose the minimum prison time that must be served before parole eligibility for felonies punishable by life in prison prescribed by section 186.22, subdivision (b)(5)," and accordingly, "imposition of that penalty is mandatory." The trial court's striking the penalty under section 186.22, subdivision (b)(5) was unauthorized, and the prosecutor's failure to object did not forfeit a challenge to the error. (See People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
That subdivision provides, "Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section . . . in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition." (§ 186.22, subd. (g).)
E. Agreement on Facts Comprising Murder
The trial court instructed the jury on two theories of first degree murder: premeditation and deliberation and lying in wait. The trial court did not instruct the jury it had to agree as to which theory had been proven. Defendants contend the trial court violated their right to a jury trial by permitting the jury to convict them of murder without agreeing on the facts that comprised the offense.
In Schad v. Arizona (1991) 501 U.S. 624, 630-645 (Schad)and Walton v. Arizona (1990) 497 U.S. 639, 648, overruled on another ground by Ring v. Arizona (2002) 536 U.S. 584, 609 (Ring),the United States Supreme Court held that federal courts would defer to states' definitions of the elements of offenses, and juror unanimity was not required as to the factual theory for a conviction. The California Supreme Court has explicitly held that "jurors need not unanimously agree on a theory of first degree murder . . . ." (People v. Nakahara (2003) 30 Cal.4th 705, 712-713 (Nakahara).)Defendants argue, however, that the United States Supreme Court's decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi)and Ring have undercut the basis for Nakahara.
In Ring, the court overruled Walton "to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty." (Ring, supra, 536 U.S. at p. 609.) However, neither Ring nor Apprendi mentioned Schad. Furthermore, in Nakahara, the California Supreme Court rejected the argument that Apprendi called into question former rulings that unanimity instructions are not required when a jury is instructed on different theories of first degree murder. The court explained that in Apprendi, "the United States Supreme court found a constitutional requirement that any fact that increases the maximum penalty for a crime, other than a prior conviction, must be formally charged, submitted to the fact finder, treated as a criminal element, and proved beyond a reasonable doubt. [Citation.] We see nothing in Apprendi that would require a unanimous jury verdict as to the particular theory justifying a finding of first degree murder. (See also Ring . . . [requiring jury finding beyond reasonable doubt as to facts essential to punishment].)" (Nakahara, supra, 30 Cal.4th at pp. 712-713.) In People v. Hawthorne (2009) 46 Cal.4th 67, 89, overruled on another point in People v. McKinnon (2011) 52 Cal.4th 610, 637, the court reaffirmed that a unanimity instruction is not required when two theories of first degree murder are presented.
We are bound by Nakahara and Hawthorne (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455), and furthermore, we agree with the reasoning of those cases. We therefore reject defendants' argument that the jury should have been instructed on unanimity as to the theory of murder.
F. Serious Prior Felony Enhancement
The People contend the trial court erred in failing to impose a five-year enhancement for Aispuro's prior serious felony conviction (§ 667, subd. (a)).
1. Additional Background
At the court trial on the priors, the prosecutor argued that the submitted documents "sufficiently establish the prior allegations that are found in the Complaint, specifically, that pursuant to section 1170.12(a) through (d), 667 (b) through (i), as well as the [section] 667.5(b) priors." Although the complaint did not list a section 667, subdivision (a) prior, the first amended information alleged as to counts 1 and 3 that under section 667, subdivision (a), Aispuro "has suffered the following prior conviction of a serious felony: [¶] . . . [¶] FVI011859 PC459 12/15/2000 San Bernardino CA Superior." The same crime was alleged as a prior serious or violent felony under section 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), as well as a prison prior under section 667.5, subdivision (b).
The minute order for the court trial on the prior offenses states, "Court finds prior(s) 1 true. [¶] Court finds prior(s) 2 true. [¶] PRIOR PURSUANT TO 1170.12(A)-(D) FOUND TRUE."
2. Analysis
Aispuro argues that because the prosecutor referred to the complaint, which did not include an allegation under section 667, subdivision (a), the prosecutor did not seek to prove any allegation under section 667, subdivision (a). However, the first amended information did allege Aispuro's 2000 burglary conviction as a prior serious felony conviction under section 667, subdivision (a). That offense was proven in the court trial, even though the prosecutor erroneously referred to the complaint rather than the information. We therefore agree with the People that the trial court erred in failing to impose the mandatory five-year enhancement under section 667, subdivision (a). (People v. Ayon (1996) 46 Cal.App.4th 385, 394-395, disapproved on another ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.) However, as the People concede, the trial court should then strike the one-year enhancement under section 667.5, subdivision (b). (People v. Jones (1993) 5 Cal.4th 1142, 1153.)
G. One-Year Arming Enhancement
The People contend the trial court erred in sentencing Aispuro to one year in prison for the arming enhancement (§ 12022, subd. (a)(1)) for the murder, because the court also imposed a 25-years-to-life enhancement on the murder (§ 12022.53, subds. (d), (e)(1)).
We agree that the trial court erred in this regard. Section 12022.53, subdivision (f) states, "Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section . . . 12022 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. . . ." We will therefore order the one-year enhancement under section 12022, subdivision (a)(1) stayed. (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1127-1128.)
H. Gang Enhancement
The People contend the trial court erred in imposing and staying a 10-year term as to Aispuro for the gang enhancement (§ 186.22, subd. (b)(1)(C)) for the murder. We agree that the trial court erred in this regard. In People v. Lopez (2005) 34 Cal.4th 1002, the court held that the 10-year enhancement under section 182.22, subdivision (b)(1)(C) does not apply when the underlying felony is first degree murder punishable by a term of 25 years to life.
Subdivision (b)(5) of section 186.22, which applies to any person who, for the benefit of a gang, commits a felony punishable by imprisonment for life, provides that the person may not be paroled until a minimum of 15 years have been served. Here, however, because the trial court imposed an enhancement under section 12022.53, subdivision (e)(1), the gang enhancement could not also be imposed and executed "unless the person personally used or personally discharged a firearm in the commission of the offense." (§ 12022.53, subd. (e)(2).) The jury made no personal use finding as to Aispuro; therefore, the 15-year minimum parole eligibility term (§ 186.22, subd. (b)(5)) should have been imposed and stayed as to him. (See People v. Sinclair (2008) 166 Cal.App.4th 848, 854-855.)
IV. DISPOSITION
Defendants' convictions are affirmed. However, the matter is remanded for resentencing, at which the trial court is directed to (1) impose a five-year term under section 667, subdivision (a) as to Aispuro; (2) strike the one-year enhancement under section 667.5, subdivision (b) as to Aispuro; (3) stay the one-year enhancement under section 12022, subdivision (a)(1) as to Aispuro; (4) impose a parole eligibility term under section 186.22, subdivision (b)(5) as to Gonzalez; (5) stay defendants' sentences for count 3 under section 654; and (6) strike the 10-year enhancement under section 186.22, subdivision (b)(1)(C) as to Aispuro and impose and stay a 15-year minimum parole eligibility term as to him under section 186.22, subdivision (b)(5). The trial court shall prepare corrected abstracts of judgment and forward them to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur: RAMIREZ
P.J.
MILLER
J.