Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Riverside County No. RIF134282, Jean Pfeiffer Leonard, Judge.
NARES, Acting P. J.
In this drive-by shooting case, a jury convicted Frank Edward Gonzalez, Rudolph Laguna Hernandez, Jaime Cesar Coronel, and Christopher Abel Ruiz (sometimes collectively referred to as defendants) of two counts of assault with a firearm (counts 1-2: Pen. Code, § 245, subd. (a)(2), hereafter § 245(a)(2); victims: Lydia A. and her father, Joseph A., respectively), and one count of shooting at an inhabited dwelling (count 3: § 246).
All further statutory references are to the Penal Code.
The jury also convicted Gonzalez, Hernandez, and Ruiz─but not Coronel─of one count of participating in a criminal street gang known as the Evans Street gang (count 4: § 186.22, subd. (a), hereafter § 186.22(a)). The four-count second amended information did not charge Coronel with that count 4 offense.
The jury found true gang enhancement allegations that defendants committed the offenses charged in counts 1 through 3 for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members within the meaning of section 186.22, subdivision (b) (hereafter section 186.22(b)). The jury found not true allegations that Ruiz, in committing the assault with a firearm offenses charged in counts 1 and 2, personally used a firearm within the meaning of sections 12022.5, subdivision (a), and 1192.7, subdivision (c)(8).
1. Sentences
a. Gonzalez
The court sentenced Gonzalez to a total prison term of "life with a minimum of 23 years, " consisting of an indeterminate term of "15 years to life" plus a consecutive aggregate determinate term of eight years. Specifically, the sentence consisted of (1) the determinate middle term of three years as to the principal count, count 1 (assault with a firearm in violation of § 245(a)(2)), with a consecutive five-year gang enhancement (§ 186.22(b)(1)) as to that count, for a total principal term of eight years; plus (2) the middle term of three years as to count 2 (assault with a firearm in violation of § 245(a)(2)) and a five-year gang enhancement (§ 186.22 (b)(1)) as to that count, with the subordinate count 2 eight-year term running concurrently with the count 1 principal term; plus (3) a concurrent middle term of two years as to count 4 (active participation in a criminal street gang in violation of § 186.22(a)); plus (4) an indeterminate term of "15 years to life" under section 186.22, subdivision (b)(4)(B) (hereafter section 186.22(b)(4)(B)) as to count 3 (shooting at an inhabited dwelling in violation of § 246), with the aggregate determinate term of eight years running consecutively to the count 3 indeterminate term.
b. Hernandez
The court sentenced Hernandez to a total prison term of "life with a minimum of 24 years, " consisting of an indeterminate term of "15 years to life" plus a consecutive aggregate determinate term of nine years. Specifically, the sentence consisted of (1) the determinate upper term of four years as to the principal count, count 1 (assault with a firearm in violation of § 245(a)(2)), with a consecutive five-year gang enhancement (§ 186.22(b)(1)) as to that count, for a total principal term of nine years; plus (2) the middle term of three years as to count 2 (assault with a firearm in violation of § 245(a)(2)) and a five-year gang enhancement (§ 186.22 (b)(1)(A)) as to that count, with the subordinate count 2 eight-year term running concurrently with the count 1 principal term; plus (3) a concurrent middle term of two years as to count 4 (active participation in a criminal street gang in violation of § 186.22(a)); plus (4) an indeterminate term of "15 years to life" under section 186.22(b)(4)(B) as to count 3 (shooting at an inhabited dwelling in violation of § 246), with the aggregate determinate term of nine years running consecutively to the count 3 indeterminate term.
c. Coronel
The court sentenced Coronel to a total prison term of "life with a minimum of 22 years, " consisting of an indeterminate term of "15 years to life" plus a consecutive aggregate determinate term of seven years. Specifically, the sentence consisted of (1) a determinate low term of two years as to the principal count, count 1 (assault with a firearm in violation of § 245(a)(2)), with a consecutive five-year gang enhancement (§ 186.22(b)(1)) as to that count, for a total principal term of seven years; plus (2) a low term of two years as to count 2 (assault with a firearm in violation of § 245(a)(2)) and a five-year gang enhancement (§ 186.22 (b)(1)(A)) as to that count, with the subordinate count 2 seven-year term running concurrently to the count 1 principal term; plus (4) an indeterminate term of "15 years to life" under section 186.22(b)(4)(B) as to count 3 (shooting at an inhabited dwelling in violation of § 246), with the determinate term of seven years running consecutively to that count 3 indeterminate term.
With respect to Coronel's sentence, both the court's January 7, 2009 minutes and the corresponding abstract of judgment incorrectly indicate the court stayed the count 1 five-year gang enhancement (§ 186.22(b)(1)(A)). We shall direct the trial court to amend both the minutes and the abstract of judgment to reflect that the court imposed a consecutive five-year gang enhancement (§ 186.22(b)(1)(A)) as to count 1.
With respect to Coronel's sentence, both the court's January 7, 2009 minutes and the abstract of judgment incorrectly indicate that the court imposed a consecutive five-year gang enhancement (§ 186.22(b)(1)(A)) as to count 2. We shall direct the trial court to amend both the minutes and the abstract of judgment to reflect that the court imposed a concurrent five-year gang enhancement (§ 186.22(b)(1)(A)) as to count 2.
d. Ruiz
The court sentenced Ruiz to a total prison term of "life with a minimum of 22 years, " consisting of an indeterminate term of "15 years to life" plus a consecutive aggregate determinate term of seven years. Specifically, the sentence consisted of (1) a determinate low term of two years as to the principal count, count 1 (assault with a firearm in violation of § 245(a)(2)), with a consecutive five-year gang enhancement (§ 186.22(b)(1)) as to that count, for a total principal term of seven years; plus (2) a low term of two years as to count 2 (assault with a firearm in violation of § 245(a)(2)) and a five-year gang enhancement (§ 186.22 (b)(1)(A)) as to that count, with the subordinate count 2 seven-year term running concurrently to the count 1 principal term; plus (3) a concurrent middle term of two years as to count 4 (active participation in a criminal street gang in violation of § 186.22(a));; plus (4) an indeterminate term of "15 years to life" under section 186.22(b)(4)(B) as to count 3 (shooting at an inhabited dwelling in violation of § 246), with the determinate term of seven years running consecutively to that count 3 indeterminate term.
2. Contentions
Defendants all raise the following six contentions: (1) the court abused its discretion and violated their Sixth Amendment right to an impartial jury by denying their joint motion for a new trial, which was based on a claim of juror misconduct, because the evidence showed juror No. 6 committed misconduct and the prosecutor failed to rebut the presumption of prejudice; (2) the evidence was insufficient to support their count 3 convictions of shooting "at" an inhabited dwelling (§ 246); (3) the evidence was insufficient to support the jury's true findings on the gang enhancement allegations in counts 1 through 3 because there was no evidence to show the charged offenses were committed to benefit a particular gang; (4) the court erred when it imposed on each of them a sentence of 15 years to life for their count 3 convictions (shooting at an inhabited dwelling in violation of § 246), because the proper term under the alternate penalty provision of section 186.22(b)(4) is life with a minimum parole eligibility of 15 years, and thus their sentences as to count 3 should be modified to life with a minimum term of 15 years before parole eligibility; (5) the five-year gang enhancement terms reflected in the court's minute orders and in the abstracts of judgment as having been imposed for count 3 (shooting at an inhabited dwelling in violation of § 246) must be stricken because the court did not orally pronounce this portion of the sentence, and the court otherwise relied on the gang enhancement findings for count 3 to sentence defendants pursuant to the alternate penalty provision in section 186.22(b)(4); and (6) the court should have stayed under section 654 the concurrent sentence it imposed for each of their convictions of count 2 (§ 245(a)(2)).
Three additional contentions are also asserted: (7) Coronel contends the court prejudicially erred by admitting into evidence his statement to the police that Ruiz's broken car prevented him from running away from the police because his statement was not preceded by a Miranda advisement; (8) Gonzalez contends the court abused its discretion by denying his request to strike the gang enhancement punishment in the interest of justice; and (9) Hernandez, Gonzalez, and Ruiz contend the court erred in failing to stay their two-year sentences for their convictions of count 4 (participating in a criminal street gang in violation of § 186.22(a)) under section 654 because their commission of that offense was part of their indivisible course of conduct in committing count 2 (assault upon Joseph, with a firearm in violation of § 245(a)(2));
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
We affirm the judgment. However, we remand the matter with directions to amend the sentencing minutes and abstracts of judgment to correct specified clerical errors, discussed, post.
FACTUAL BACKGROUND
A. The People's Case
On January 13, 2006, police served a search warrant at Gonzalez's house in Riverside and found a letter from "Frankster the Gangster, AKA Little Shorty" to "Lil' Syco." Gonzalez used "Lil' Shorty" or "Shorty" as his gang moniker, and Hernandez used "Lil' Syco" as his. The letter and other documents found in Gonzalez's house contained graffiti associated with the Evans Street gang, which was a subgroup or "clique" within the Casa Blanca Rifa gang operating in the Casa Blanca neighborhood of Riverside. The police also found photographs of Gonzalez, Hernandez, and other known Evans Street gang members giving gang hand signs.
On February 22, 2006, Gonzalez's probation officer confiscated from Gonzalez some notebook papers that were marked with graffiti associated with the Evans Street gang, including a list or "roll call" of gang members. Gonzalez and Hernandez were listed on the roll call.
In July 2006 police contacted Ruiz in Casa Blanca. Ruiz was hanging out with Michael Rangel, a documented member of the Evans Street gang. In his vehicle, Ruiz had a compact disc case that had gang-related writing on it.
On December 6, 2006, police contacted Gonzalez and Hernandez. Hernandez was wearing Evans Street gang clothing and admitted being a member of that gang.
Amanda M., who began her testimony by stating she was upset, testified that on January 12, 2007, she saw Lydia A., who was her neighbor in the Casa Blanca area, come home. Amanda told Lydia that she had seen "some strangers driving around the neighborhood." Amanda also stated she did not remember whether she warned Lydia about strangers driving around the neighborhood, and she denied telling Lydia there were some "Evans Streeters" in the neighborhood.
Amanda indicated she saw a white car pass by her residence on Emerald Street more than once, she heard what she believed were gunshots, and she may have called the police. She testified she saw police officers in front of the victims' house that night, and she spoke with a police officer about what she had seen. Amanda denied telling the officer she saw a white car pass in front of her house three times and denied telling him she saw a rifle sticking out the back window of that car. However, Amanda then testified she told the officer that she saw the white car drive by one more time after she called 911.
Riverside Police Officer Paul Miranda testified that at about 10:20 p.m. that night (January 12, 2007), he and his partner responded to a radio call reporting that shots were fired at an address on Emerald Street in the Casa Blanca area. When he arrived at the address, Officer Miranda contacted Joseph and his daughter, Lydia, to obtain their statements. Joseph told Officer Miranda that he saw a white, four-door sedan outside his residence, and a person he could not identify walking east on Emerald Street.
Officer Miranda testified that Lydia appeared nervous and scared when he contacted her, but she did not appear to be intoxicated. She told him she had just been dropped off at her house on Emerald Street and, as she was about to walk up the driveway, a neighbor told her to "watch out" because some "Evans Streeters" were in the area shooting at the houses. Lydia also told Officer Miranda that as she was walking up to the house, she saw a Hispanic man with a long-barreled handgun walking east down the middle of Emerald Street. The man wore a dark-colored beanie and a gray sweatshirt with a white T-shirt underneath. She also said a white car pulled up next to the man, and he used the car as a shield. When the man saw her, he ran toward her and pointed the gun at her. Lydia told her father, who had come to the door, to get down. She threw him to the ground and heard three gunshots.
Lydia also told Officer Miranda that as she went inside the house, she looked back and saw a man wearing a black T-shirt with white lettering and another man wearing a dark-colored sweatshirt get out of the passenger side of the white car. Lydia told Officer Miranda she did not know the three men, but also told him that one of them was possibly named Rudy.
Riverside Police Officers Marc Dehdashtian and Mark Ellis were on patrol at about 10:20 p.m. on January 12, 2007, when they heard the radio calls about shots being fired at a dwelling on Emerald Street in the Casa Blanca neighborhood and the description of a white car with four people in it being involved in the shooting. As they drove toward Emerald Street, Officers Dehdashtian and Ellis saw a white car approaching with the headlights off and carrying four Hispanic men. As Officer Dehdashtian was shining a spotlight on it, the white car pulled into the driveway of a residence at the corner of Diamond and Bunker.
Officers Dehdashtian and Ellis stopped next to the white car, exited their patrol car, drew their weapons, and ordered the four Hispanic men to put their hands up. One of the men got out of the rear driver's side of the car, looked at the officers, and then ran from them. The officers detained the other three men: Ruiz, who was the driver of the car; Coronel, who was the front seat passenger; and Gonzalez, who was the rear passenger-side occupant. Gang detectives later showed Officers Dehdashtian and Ellis a photo lineup and they identified Hernandez as the person who fled the white car on foot. Hernandez was apprehended in early April 2007, after he broke into a house and hid under a bed.
Officer Miranda testified that when he learned that Ruiz, Coronel and Gonzalez had been detained, he asked Lydia whether she could identify the people she had seen around her house, and she said, "Yes." Officer Miranda drove Lydia in the backseat of his patrol car to the area of Diamond and Bunker where the three men were being held by the police. Lydia was "very nervous" and sat low in her seat, repeatedly asking whether the people being held could see her. Lydia identified Ruiz as "the guy that shot at me" and identified Coronel and Gonzalez as two of the other men who exited the white car. Officer Miranda also testified that Lydia identified the white car at the Diamond and Bunker location as the car she had seen outside her house.
Officer Ellis testified that later that night, as he was filling out the booking sheets at the police station after Ruiz, Coronel and Gonzalez were transported there, he overheard Coronel tell Ruiz, "Your car is a piece of shit." Officer Ellis saw that Coronel was upset and asked him what he was upset about. Coronel replied that he was upset because the door on Ruiz's car was broken and he (Coronel) could not get out and run away when the police stopped the car.
When the police searched the white car, which was a Pontiac Grand Am, they found a compact disc with the words "Casa Blanca" written on it, a blue beanie cap, mail addressed to Ruiz, a 36-pack of Budweiser beer, a sawed-off.22-caliber rifle that was loaded and had a spent cartridge casing jammed in the chamber, and a number of spent.22-caliber cartridge casings. Usable fingerprints could not be recovered from the rifle or the cartridge casings.
During a search of the exterior of the victims' house, police officers found a bullet mark on an archway and another on a wall.
On January 25, 2007, police executed a search warrant at Coronel's house and recovered a black T-shirt on which the following words were written: "In Loving Memory of Lil' Peter 10-23-88 to 11-18-06." The prosecution's principal gang expert, Riverside Police Officer Gary Toussaint, opined that only someone accepted into the Evans Street gang would have the right to have such a shirt.
Both Joseph and Lydia recanted at trial. Joseph indicated he was concerned about testifying because of the risk of retaliation to his family. He indicated that Evans Street did not refer to a gang and he was unaware of any gang rivalries in the Casa Blanca neighborhood. On the night of the shooting, as he went outside the front door to greet Lydia, who had just returned home, they heard shots and Lydia told him to get down. They went inside the house and he called 911. Joseph did not remember talking to the police, did not remember how many shots were fired, did not remember seeing a white car outside the house, and did not remember seeing anyone walking outside the house.
Lydia also indicated she was unaware of any gang activity in the Casa Blanca neighborhood and denied ever hearing of either the Evans Street gang or the Vagabundos gang. She denied knowing that her brothers were involved with the Vagabundos gang. She claimed she returned home from the Pechanga Casino where she had gotten drunk and, when her father let her in the house, they heard some gunshots. She also claimed she could not remember calling the police because she was drunk at the time. Lydia denied seeing a gun, seeing the person who fired the shots, or telling the police she saw a white car in front of the house. She also denied getting in a police car and identifying possible suspects in the shooting. When she was shown a photograph of the white car, she indicated she did not recognize it.
Testifying as an expert on street gangs in the Casa Blanca neighborhood, Officer Toussaint explained that the Evans Street gang was a clique or subgroup of the Casa Blanca Rifa gang. He indicated that in January 2007 there were 20 to 30 active members of the Evans Street gang. In his opinion, defendants were all active members of the Evans Street gang in January 2007.
Officer Toussaint also testified that the primary activity of the Evans Street gang was the commission of violent assaults, homicides and attempted homicides, and he supported his opinion by detailing prior criminal convictions of other members of the Evans Street gang. The Evans Street gang was involved in a feud with the Fern Street, or Vagabundos, gang that began with a bar fight in the 1960's. Officer Toussaint explained that Joseph's sons (Lydia's brothers) and Lydia's boyfriend were all documented members of the Vagabundos gang. Lydia's boyfriend was suspected of shooting Gonzalez during an incident at Villegas Park and of shooting and killing Peter Herrera, a documented Evans Street gang member, prior to the shooting on Emerald Street.
Officer Toussaint opined that a member of the Evans Street gang might want to shoot at the victims' house because the house was associated with members of the Vagabundos gang and in retaliation for the shooting death of Peter Herrera. When presented with the details of the shooting in the form of a hypothetical question, Officer Toussaint opined that such a crime would have benefited the Evans Street gang by furthering the gang's reputation for violence.
B. The Defense Case
Hernandez, Coronel, and Ruiz did not testify. Steven Dowell, a criminalist employed by the Los Angeles County Department of Coroner, testified as a defense expert that the results of tests of Gonzalez's and Coronel's hands were negative for gunshot residue.
Shuang Bai, a medical doctor, who treated Gonzalez for a gunshot wound to the head in June 2005 explained that as a result of the head injury, Gonzalez was left with "some mental and physical debilities." The gunshot wound left him with a limp.
Gonzalez testified that around 7:00 or 8:00 p.m. on January 12, 2007, he started walking to his grandmother's house in Casa Blanca. Ruiz drove up in a car and picked him up. Hernandez, who is Gonzalez's uncle, and Coronel were also in the car. Gonzalez sat in the back behind Coronel, who was in the front passenger seat, and Hernandez sat in the back next to Gonzalez. As Ruiz pulled the car into the driveway of Gonzalez's grandmother's house on Diamond Street, Ruiz turned off the headlights. At that point, a police car pulled up and a police officer pulled Gonzalez out of the car, handcuffed him, and made him sit on the curb. Gonzalez testified that when police interviewed him, he waived his Miranda rights, said he had been picked up just prior to his arrest. had heard no gunshots, and denied being a member of a gang. Gonzalez denied that various documents and photographs presented by the prosecution had any gang significance.
DISCUSSION
I. JUROR MISCONDUCT
Gonzalez, Hernandez, Coronel, and Ruiz contend the court abused its discretion and violated their Sixth Amendment right to an impartial jury by denying their joint motion for a new trial because the evidence showed that juror No. 6 committed misconduct and the prosecutor failed to rebut the presumption of prejudice. Specifically, they contend the judgments must be reversed because juror No. 6 committed misconduct in violation of both section 1122 and the court's admonitions─thereby demonstrating he had prejudged the case and indicating actual prejudice against them─by (1) speaking out loud in the jury box so as to be heard by alternate juror No. 1 during the morning session of the trial on March 13 and, during the lunch break shortly thereafter on that same day, saying "guilty" to a waitress at a coffee shop in the presence of other jurors while pretending to cough in his hand; and (2) by talking about the case three other times with other jurors in this case in the hallway outside of jury deliberations.
After conducting an evidentiary hearing on defendants' motion for new trial (discussed, post), the court denied the motion, finding that juror No. 6's "conduct was not so prejudicial that it [led] to a miscarriage of justice."
We conclude that juror No. 6 committed misconduct, and a rebuttable presumption of prejudice arose as a result of that misconduct. However, we independently conclude, based on a review of the entire record and the totality of the circumstances, that the presumption of prejudice was rebutted, as (1) the evidence shows that juror No. 6's misconduct had no effect on the impartiality of the other jurors and thus did not affect their deliberations; (2) juror No. 6's snickering, sighing, and negative comments in the jury box in reaction to the prosecution's witnesses on the morning of March 13, shortly before the coffee shop incident, do not support an inference that he prejudged the case and was actually biased against the defendants; (3) none of his hallway comments support an inference that he prejudged the case and was actually prejudiced against the defendants; and (4) the evidence of juror No. 6's act of pretending to cough while saying "guilty" in the coffee shop, viewed in the light of all of the evidence, does not show a reasonable likelihood that he prejudged the case or was actually biased against the defendants.
A. Background
Jury selection began on Friday, March 7, 2008. The prosecution's case-in-chief began on Tuesday, March 11.
All further dates are to calendar year 2008.
Thursday, March 13─the day of the jury box and coffee shop incidents (discussed, post)─was the third day of the six days of testimony in this case. The People rested their case on Monday, March 17, and the defendants presented their cases and rested on Tuesday, March 18.
1. March 13 jury box and coffee shop incidents involving juror No. 6
a. Jury box incident
The reporter's transcript shows that on the morning of March 13, during the People's case-in-chief and outside the presence of the jury, alternate juror No. 1 reported to the court that juror No. 6 was sighing and making comments during the testimony. Specifically, the following exchange occurred between the court and alternate juror No. 1:
"The Court:... Could you please tell me what's been happening and what's been making you feel uncomfortable, and then we'll ask you some questions.
"[Alternate juror No. 1]: Okay. The juror that's sitting to my left tends to snicker and make comments about whether he believes what the witness is saying or not.
"The Court: When you say he makes comments about if he believes a witness, can you tell me what you heard?
"[Alternate juror No. 1]: After the witness would make a statement, he'll [sic] say something like, 'Yeah, right' or, you know, snicker or 'it's not possible' or─
"The Court: What you just did is you made a noise like a blowing out noise, blowing out of your mouth?
"[Alternate juror No. 1]: Yeah.
"The Court: Okay.
"[Alternate juror No. 1]: He asked me how to spell things for his notes. While he's taking notes, he asked me how to spell a word. That has happened─
"The Court: What was the word─
"[Alternate juror No. 1]: 'Alleged.' [¶] I didn't want to answer him. I don't want to talk to him. I don't dislike him, but it just isn't right. I don't want anyone to think that, you know, I'm trying to communicate in any way with him while I'm listening to what's going on and what the lawyers are asking and what the witness is saying, so─
"The Court: Anything else that he said? [¶] You've indicated that he makes a statement after a witness has testified, for instance, 'Yeah, right.'
"[Alternate juror No. 1]: Uh-huh.
"The Court: Does he say that sarcastically?
"[Alternate juror No. 1]: Yes. I don't think he's saying it to anyone, more to himself, but he needs to keep it to himself. You know. I don't feel like he's directing his comments to me or anyone around him. It's─there just shouldn't be any comments.
"The Court:... [¶]... [T]he feeling that I'm getting is that you're feeling that he's communicating with you about this case.
"[Alternate juror No. 1]: Uh-huh.
"The Court: Either consciously or subconsciously.
"[Alternate juror No. 1]: Uh-huh.
"The Court: Is that what I'm hearing?
"[Alternate juror No. 1]: Yes.
"The Court: Anything else that you want to tell me?
"[Alternate juror No. 1]: No."
The prosecutor asked alternate juror No. 1, "Would you be comfortable, perhaps, if everybody were instructed to try to be quiet and focus so the jurors are paying attention and trying to write?" The juror responded that she had asked the court clerk whether the court could "give a general admonition to, you know, refrain from those kinds of things. I don't really want [juror No. 6] to know I tattled on him."
When one of the defense attorneys asked alternate juror No. 1, "Has this been going on the whole time that evidence has been taken in this trial?, " the juror replied, "No. Just more recently. This morning and yesterday. No."
b. Court's offer to remove juror No. 6 and the court's general admonition
Before it brought the jury back in, the court asked all four defense attorneys, "[D]o any of you want me to remove [juror No. 6]?" (Italics added.) They all answered, "No."
The jurors then returned and the court gave them the following admonition:
"Remember, do not talk about the case or about any of the people or any subject involved in it with anyone including the other jurors. Do not make up your mind about the verdict or any issue until after you have discussed the case with the other jurors during deliberations.
"You're not in deliberation until you actually go back and go into the jury room. Sitting here as a panel, you are still listening to the facts, you're listening to the evidence. You are not deliberating even though you are sitting together as a panel.
"Please remember to be quiet and respectful during the taking of evidence in this case. Don't ask questions of each other during the taking of testimony. You are also not to react or communicate with other jurors during the time that you are in the box. When I'm saying 'in the box, ' that's where you are right now. Please confine your thoughts to yourself remember that if you're talking to other jurors during the taking of testimony or during the time that we are in the box, you may be distracting to other jurors. Please listen. Don't make comments. And it is very important that you not form or express any opinions on the evidence or the credibility of witnesses at this point. You are here just soaking it all up." (Italics added.)
c. Coffee shop incident
As discussed more fully, post, in connection with defendants' new trial motion, the coffee shop incident involving juror No. 6 took place later that same day (March 13) during the lunch break. During that incident, juror No. 6 responded to the waitress's question about how the trial was going by pretending to cough into his hand while saying in a good-humored mood, "guilty" in the presence of jurors Nos. 4 and 7.
2. Jury deliberations and verdicts
The jury retired for deliberations on Thursday, March 20. It returned its verdicts on Tuesday, March 25.
3. Defense motion for new trial and the court's ruling
After the jury rendered its verdicts, Gonzalez filed a motion for new trial on several grounds, including misconduct he claimed juror No. 6 committed at a restaurant in Riverside. Asserting that "several jurors spoke to restaurant personnel during the trial and indicated they felt the defendants were all guilty long before all the evidence was in and before deliberations began, " he requested that the court hold an evidentiary hearing on the matter.
In support of his motion, which Hernandez, Coronel, and Ruiz joined, Gonzalez submitted the declaration of Michelle Lallement, a former waitress at Mr. T's, a restaurant near the Superior Court of Riverside County in downtown Riverside. In her declaration, Lallement indicated that on Thursday, March 13, as she was waiting on a table of three men wearing juror badges, she asked them how the trial was going, and one of the jurors replied he could not talk about the case because he had just gotten in trouble with the judge for talking. She also indicated the juror again told her he could not say anything about the case, he "proceeded to pretend to cough into his hand" while saying the word "guilty!, " and then he and the other two jurors laughed.
Lallement also indicated in her declaration that she knew defense attorney Sean Davitt (Gonzalez's attorney) at the time of the March 13 incident; that the same juror who had had said "guilty!" pointed Davitt out to her; and two weeks later, when she next saw Davitt, she told him about the conversation she had with the juror two weeks earlier and said she would be willing to speak to the judge about what she had heard.
Gonzalez also submitted attorney Davitt's declaration, in which Davitt stated he had a conversation with a local waitress after the verdicts were returned in this case, and "she informed [him] that several of the jurors had told her during trial and prior to deliberations their opinion was that all the defendants were guilty[, and s]he was willing to testify and identify the specific jurors, if necessary." Davitt also declared that, "[f]rom her general description, it appears that the lead juror expressing his opinion was our Juror [No.] 6, who the court may remember was rather vocal to Alternate Juror [No.] 1, resulting in a special hearing on that issue."
At a hearing in late August on the new trial motion, the court, after considering Lallement's declaration, identified juror No. 6 as the juror who said "guilty" while pretending to cough in his hand. The prosecutor indicated the best procedure would be to examine juror No. 6 at an evidentiary hearing to determine whether that juror was "joking around with the waitress or had... prejudged the case and made up his mind before [the trial was] over." Stating that "what troubles me is that I did have concerns about Juror Number 6, " the court found good cause to believe there may have been jury misconduct and ordered an evidentiary hearing, instructing that Lallement, the 12 jurors, and the two alternate jurors be present for examination.
a. Evidentiary hearing on defendants' new trial motion
At the October 23 evidentiary hearing on the new trial motion, the court examined Lallement and all of the members of the jury panel with the exception of juror No. 6, who did not appear. The court indicated that in an attempt to bring in all of the jurors, including juror No. 6, "[the] clerk has sent out notices by certified mail." The court stated that it "kept everyone apprised of the problems that we were having in locating [juror No. 6]" and "did everything" it could, but the court "[did not] have the access to investigators" and it "never received a request from any [of the attorneys] to allow [their] investigators to go look for him or find him."
Lallement confirmed the statement in her declaration that, on the day in question, she waited on a table of three jurors at Mr. T's restaurant where she worked. Lallement testified that she is a waitress, she talks to jurors "all the time, " and she "[has] a big mouth." She indicated that none of the three jurors she served at the Mr. T's restaurant on March 13 was discussing the case when she first spoke to them, but one of them, after jokingly saying he had already been in trouble for discussing things, then coughed and said "guilty."
When the court asked Lallement to describe the demeanor of that juror, she stated that "he was in a good-humored mood, " but she did not know whether he was laughing. When the court asked her whether the other two jurors reacted in any way, Lallement indicated she did not remember them saying anything, but they were looking at the juror in a way she described as, "Are you nuts─you know─shut up." After viewing the jurors who were present at the hearing, Lallement identified jurors Nos. 4 and 7 as the two other jurors who were sitting at the restaurant table with juror No. 6.
When questioned, jurors Nos. 2 and 4 recounted a few instances when juror No. 6 tried to discuss the case with other jurors, who quickly reminded him of their obligation not to talk about the case and changed the subject.
When the court asked juror No. 2 whether "anyone on our jury at any time outside the jury deliberation room express[ed] an opinion regarding this case, " the juror replied, "Yes." Juror No. 2 identified juror No. 6 and indicated he could remember three times when juror No. 6 "started talking about the trial" in the hallway, but on dates juror No. 2 could not remember.
Juror No. 2 stated that the first incident occurred after lunch when a "good handful" of jurors in this case were sitting on the benches in the hallway, and juror No. 6 "was saying something" about one of the defense attorneys "and what he had asked in questioning a witness or something like that." Juror No. 2 also stated, "I remember all of us at the same time went, 'Shhhh, ' so nobody engaged with him. But I remember him bringing something that all of us knew right then and there, You crossed the line. Shhhh. Stop." Juror No. 2 indicated that juror No. 6 did stop talking about the case.
The second incident also occurred after lunch when juror No. 2 and an unspecified number of other jurors were standing while waiting in the hallway. Juror No. 2 stated that juror No. 6 was "speculating" about "[w]hat would happen if a defendant did this? What exactly... it was, I don't recall. I just remember at the time it was, to me, crossing the line... of talking about the trial or not. And at the same time the other jurors again [said], Come on. Shhhh. Cut it out." Juror No. 2 indicated that juror No. 6 was talking about one of the defendants in this case, but he was giving a hypothetical statement.
The third incident also occurred after lunch, but during deliberations, as juror No. 2 and an unspecified number of other jurors were sitting on the benches in the hallway. Juror No. 2 stated that juror No. 6 "said... something that we were deliberating on. And again, it was the same response from all of the other jurors, Shhhh. Hush up. Quiet down."
Jurors Nos. 4 and 7 acknowledged they were at the Mr. T's restaurant table with juror No. 6 but stated they did not remember hearing the remark. Juror No. 9 stated he had lunch with juror No. 6 once at Mr. T's and once somewhere else, but he did not recall any comments juror No. 6 may have made about the case. Juror No. 9 also stated he told juror No. 6 they were not supposed to talk about the case.
b. Oral arguments
During oral arguments on the motion, Gonzalez's counsel, Davitt, argued that "there was jury misconduct." On the question of whether the misconduct was prejudicial, Davitt stated, "I'm not able to make that judgment, Judge. I really don't know. It sounded like most people in this group took [juror No. 6] with a grain of salt. So I don't know even if he expressed a lot of opinions that people forgot about─I don't know what sort of play that had. Unfortunately, I don't know that we'll ever know. [¶]... [¶]... I don't even want to offer an opinion about whether it was significant enough because I don't have enough information."
Ruiz's attorney, Isaac Guillen, argued that juror No. 6's "being the bad apple... himself is not giving the [defendants] a fair trial, " and the burden shifted to the prosecution to show the juror misconduct was not prejudicial. Stating that he was "guessing and... assuming" that juror No. 6 "not only talked here, but when he went home, he talked to everyone else who would probably listen to him about the case, " Guillen argued that juror No. 6 was "predisposed."
Coronel's counsel, Antonio Lopez, Jr., stated that "[e]ven before we started this inquiry, we all knew that [juror No. 6] was a problem." Stating that that juror No. 6 "just babbles" and was "always talking, " Lopez argued the presumption of prejudice could not be rebutted because juror No. 6 did not appear at the hearing on the new trial motion. Lopez also argued there was "no way of knowing what [e]ffect his opinions had in that deliberation room."
Hernandez's attorney, Ryan Markson, stated that "it sounds like [the other jurors] didn't listen to [juror No. 6] or hear what he was saying, " and he was "not so sure that [juror No. 6]... successfully influenced the other jurors." Stating that his concern was whether juror No. 6 "expressed the ultimate opinion in this case that one or more of these defendants was guilty" and whether "he had made up his mind, " Markson stated he did not know how the prosecution could rebut the presumption of prejudice, "especially since we don't have [juror No. 6] here to rebut or contradict what was said."
The prosecutor argued that the misconduct was not prejudicial because it did not result in a miscarriage of justice. He stated that it "sounds clear that since [juror No. 6] was described as blabbing and yammering [the other jurors] didn't pay any attention to him whatsoever." On the question of whether juror No. 6 "made a decision early, " the prosecutor argued that "[w]hat we heard from the waitress is that she described him in a joking manner. She said he was joking around when he did that cough 'guilty' thing. She described him as being in good humor. We're not going to know what was inside his head, but that's because our system is set up that way."
In rebuttal, Gonzalez's attorney, Davitt, argued that "[o]ne juror is enough since we need all 12." Attorney Davitt also argued that "we do know a little something about [juror No. 6's] predisposition or opinions early in the case because it wasn't before this case really got off the ground that... Alternate Juror [No.] 1... came to us and said, you know, He's making snide remarks about the witnesses and believing or not believing." Markson stated that "[his] impression" of that incident was that juror No. 6 "had formed some opinions about the case."
As already discussed, the record clearly shows that juror No. 6 made these comments in the jury box during the People's case-in-chief during the morning session of the trial on Thursday, March 13, and thus juror No. 6 was vocalizing his reactions to prosecution witnesses, not defense witnesses.
c. Court's ruling
After considering all the evidence and hearing the foregoing arguments by defendants' attorneys and the prosecutor, the court denied the new trial motion, finding "there was no actual juror misconduct." The court also found juror No. 6's conduct was not so prejudicial as to result in a miscarriage of justice:
"The Court will find that the conduct was not so prejudicial that it did lead to a miscarriage of justice. I will also find that the juror's actions did not adversely affect the jur[y']s impartiality, the burden of proof, or remove a defense. [¶] A couple of facts that I base that on is that it appears to me that after listening to these jurors today, many of them did not respect [juror No. 6]. They didn't listen to him. So it appears that he would have no effect on their impartiality. [¶]... [¶] Also, it seemed that the other jurors did what they were supposed to do. They did the right thing. They stopped him when he started to talk, when he started to make statements. So they were not adversely affected by his comments. They basically ignored him. A couple of the jurors indicated they never had lunch with him. And when I asked that question, they kind of rolled their eyes like, What? Do you think I'm crazy? One of the jurors said that [juror No. 6] babbled and yammered all the time. It appears to me that some of these jurors kept him in line during this process, which is to their credit. It appears to me that he really had little or no effect on their deliberations. [¶] He, no doubt, was narcissistic, self-absorbed, and a problem to this Court on a couple of occasions. The attorneys were very aware that he was a problem. I think I said, at one point, that if we had one more problem with [juror No. 6, ] I'm going to have to remove him. And I believe I asked on the record a couple of times, Do you want me to remove him[?'], and there was a statement each time, no. [¶] So... I would indicate that we knew he was a problem, and yet the attorneys chose not to remove him. [¶] At this time, then, I will find that although he was difficult and babbled and yammered, ... he actually did not cause any juror misconduct." (Italics added.)
Hernandez's attorney, Markson, asked the court, "Is the Court finding that he, in fact, did not engage in any misconduct himself?" The court replied, "Not that I can ascertain at this point." Markson responded, "I know you're saying it's not prejudicial and didn't affect the outcome of the case."
In reply, the court reiterated that it "kept everyone apprised of the problems that we were having in locating [juror No. 6]. I have never received a request from any of you to allow your investigators to go look for him or find him. That may have made a difference. But I just point that out. I did everything I could do. I don't have the access to investigators or additional knowledge. [¶] So at this point, I don't know what he was thinking, and it would be pure speculation in that regard. He may have just been trying to be funny. I don't know."
B. Applicable Legal Principles
Under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 16 of the California Constitution, "[a]n accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is '"capable and willing to decide the case solely on the evidence before it"' [citations]." (In re Hamilton (1999) 20 Cal.4th 273, 293-294.)
In general, jurors commit misconduct when they directly violate the oaths, duties, and admonitions imposed on them. (In re Hamilton, supra, 20 Cal.4th at p. 294.) Under section 1122, subdivision (b) (hereafter section 1122(b)), jurors commit serious misconduct when they "converse among themselves, or with anyone else, on any subject connected with the trial, or... form or express any opinion thereon until the cause is finally submitted to them." (See In re Hitchings (1993) 6 Cal.4th 97, 118; see also People v. Tafoya (2007) 42 Cal.4th 147, 192 ["A juror who 'consciously receives outside information, discusses the case with nonjurors, or shares improper information with other jurors' commits misconduct."].)
This court recently explained that, "[t]o challenge the validity of a verdict based on juror misconduct, a defendant may present evidence of overt acts or statements that are objectively ascertainable by sight, hearing, or the other senses." (People v. Cissna (2010) 182 Cal.App.4th 475, 486-487, citing People v. Danks (2004) 32 Cal.4th 269, 302; Evid. Code, § 1150, subd. (a).) "No evidence may be presented concerning the subjective reasoning processes of a juror that can neither be corroborated nor disproved; rather, the effect of any misconduct is evaluated based on an objective standard of whether there is a substantial likelihood of juror bias." (People v. Cissna, supra, 182 Cal.App.4th at p. 487, citing People v. Danks, supra, at p. 302; In re Hamilton, supra, 20 Cal.4th at pp. 294, 296; In re Carpenter (1995) 9 Cal.4th 634, 653-654.)
We also explained in Cissna that, "[w]hen the record shows there was juror misconduct, the defendant is afforded the benefit of a rebuttable presumption of prejudice. [Citations.] This presumption is provided as an evidentiary aid to the defendant because of the statutory bar against evidence of a juror's subjective thought processes and the reliability of external circumstances to show underlying bias." (People v. Cissna, supra, 182 Cal.App.4th at p. 487.)
In In re Hamilton, the California Supreme Court held that "[a]ny presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant." (In re Hamilton, supra, 20 Cal.4th at p. 296, italics added.)
In so holding, the high court explained that "[t]he standard is a pragmatic one, mindful of the 'day-to-day realities of courtroom life' [citation] and of society's strong competing interest in the stability of criminal verdicts [citations]. It is 'virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.' [Citation.] Moreover, the jury is a 'fundamentally human' institution; the unavoidable fact that jurors bring diverse backgrounds, philosophies, and personalities into the jury room is both the strength and the weakness of the institution. [Citation.] '[T]he criminal justice system must not be rendered impotent in quest of an ever-elusive perfection.... [Jurors] are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias.' " (In re Hamilton, supra, 20 Cal.4th at p. 296, italics added.)
1. Standard of review
"On appeal from a ruling denying a new trial motion based on juror misconduct, we defer to the trial court's factual findings if supported by substantial evidence, and exercise our independent judgment on the issue of whether prejudice arose from the misconduct (i.e., whether there is a substantial likelihood of... juror bias)." (People v. Cissna, supra, 182 Cal.App.4th at p. 488, citing People v. Nesler (1997) 16 Cal.4th 561, 582 & fn. 5; see People v. Ault (2004) 33 Cal.4th 1250, 1263-1264.)
C. Analysis
1. Juror No. 6 committed misconduct
We first conclude that the record shows juror No. 6 committed misconduct by conversing with other jurors and a nonjuror on "subject[s] connected with the trial" within the meaning of section 1122(b). Specifically, the record shows that on March 11, 2008, a short time before the first witness (Lydia Acosta) took the stand on behalf of the prosecution, the court gave the following admonishment to the jury, including juror No. 6, explaining the limitations that restricted their ability to talk about this case among themselves and with others:
"You must not converse among yourselves or with anyone else... on any subject connected with the trial except when all the following conditions exist: [¶] A. The case has been submitted to you for your decision by the Court following arguments by counsel and jury instructions[;] [¶] B. You are discussing the case with a fellow juror; and [¶] C. All 12 jurors and no other persons are present in the jury deliberating room."
The record indicates that juror No. 6 arguably committed misconduct in the jury box when, in addition to vocalizing out loud and to himself his reactions to certain prosecution witnesses, he attempted to converse with alternate juror No. 1 by asking her how to spell the word "alleged." As already discussed, alternate juror No. 1 brought these matters to the attention of the court during a recess in the middle of the People's case-in-chief on the morning of March 13. We are aware that the court's admonition had instructed the jurors to "not converse" (italics added) with the other jurors before the case was submitted to them for their decision and that alternate juror No. 1 informed the court that when juror No. 6 was sarcastically sighing, snickering, and making comments about whether he believed what the witnesses were saying, alternate juror No. 1 "[did not] feel" that juror No. 6 was "directing his comments to [her] or anyone around him." However, juror No. 6's attempt to converse with alternate juror No. 1 and his sarcastic vocal reactions to the People's witnesses violated the spirit, if not the letter, of the court's admonition.
Juror No. 6 committed misconduct a short time later that same day in Mr. T's restaurant during the lunch break when, in the presence of jurors Nos. 4 and 7, he responded in a good-humored mood to the waitress's (Lallement's) question about how the trial was going by saying "guilty" while pretending to cough into his hand." Although Lallement indicated in her declaration in support of the defendants' new trial motion that all three jurors at the coffee shop table laughed in response to that comment, the comment was an expression by juror No. 6 about a subject connected with the trial within the meaning of section 1122(b), and thus constituted misconduct even if he was only jesting.
Finally, juror No. 2's testimony during the evidentiary hearing on the new trial motion shows that juror No. 6 also committed misconduct when he tried to talk to other jurors about matters related to this case on three occasions in the hallway.
Accordingly, we conclude the record shows juror No. 6 committed misconduct, and thus the defendants were afforded a rebuttable presumption that the misconduct was prejudicial. (People v. Cissna, supra, 182 Cal.App.4th at p. 487.)
2. The evidence is insufficient to show a substantial likelihood of actual bias
After reviewing de novo the entire record and the totality of the circumstances surrounding juror No. 6's several acts of misconduct, we conclude the evidence is insufficient to show a substantial likelihood that the misconduct affected the impartiality of any of the other jurors or that juror No. 6 prejudged the case or was prejudiced against one or more of the defendants before the case was submitted to the jury for deliberation. We defer to the trial court's factual finding that all of the other jurors effectively ignored or thwarted juror No. 6's attempts to discuss the case prior to the jury's deliberations, because substantial evidence supports that finding. (See People v. Cissna, supra, 182 Cal.App.4th at p. 488.) For example, although Lallement indicated in her declaration that all three jurors at the table initially laughed in response to juror No. 6's "Guilty" comment during the feigned coughing, she testified that the two other jurors looked at him in a manner that told him he should (in Lallement's words) "shut up." At the evidentiary hearing, those jurors (Nos. 2 and 4) recounted instances when juror No. 6 tried to discuss the case with other jurors who quickly reminded him of their obligation not to talk about the case and changed the subject. Juror No. 9 testified he or she told juror No. 6 they were not supposed to talk about the case. Juror No. 7 testified that he or she and the other jurors told juror No. 6 not to talk about the case, and they "shut [juror No. 6] out and ignore[d] him."
With respect to the issue of whether there is a substantial likelihood that juror No. 6 prejudged the case or was prejudiced against one or more of the defendants, we begin by noting that in his motion for new trial, Gonzalez referred to the March 13 coffee shop incident and argued that "[i]t has come to the attention of the defense that several jurors spoke to restaurant personnel during the trial and indicated they felt the defendants were all guilty long before all the evidence was in and before deliberations began." However, during the evidentiary hearing on the motion, Lallement, the waitress who brought this incident to the attention of Gonzalez's counsel (Davitt), testified that she "[has] a big mouth" and indicated that none of the three jurors she served on March 13 at Mr. T's was talking about the case when she first spoke with them, and only one of them─the one who in a "good-humored mood" said "Guilty" while coughing into his hand─commented on the case.
Significantly, during his oral argument on the new trial motion, Gonzalez's counsel acknowledged that he was "not able to make [the] judgment" that juror No. 6's misconduct was prejudicial, and he did "[did not] want to offer an opinion about whether it was significant enough."
We construe the court's findings─that "although [juror No. 6] was difficult and babbled and yammered, ... he actually did not cause any juror misconduct"─to be findings that juror No. 6 was unable to remain quiet, but there was no substantial likelihood he prejudged the case or harbored prejudice against any of the defendants. The record supports these findings. Alternate juror No. 1's testimony regarding the March 13 jury box incident demonstrates that juror No. 6 had a habit of talking out loud. Specifically, as already noted, when the court asked her whether juror No. 6 was speaking sarcastically when he would make a statement (such as, "Yeah, right") after a witness testified, she replied, "Yes. I don't think he's saying it to anyone, more to himself, but he needs to keep it to himself."
In addition, when the court admonished the jurors after they returned to the courtroom after alternate juror No. 1 complained about juror No. 6's behavior in the jury box, the court implicitly referred to juror No. 6's inability to remain quiet by instructing the jurors (without singling out juror No. 6) to "be quiet and respectful during the taking of evidence in this case, " to "[not] ask questions of each other during the taking of testimony, " to "not... react or communicate with other jurors during the time that you are in the box, " and to "confine your thoughts to yourself" (italics added).
The waitress described juror No. 6 as speaking "jokingly" when he said "guilty" in the coffee shop while pretending to cough in his hand. Even Coronel's attorney, Lopez, stated, "[W]e all knew that [juror No. 6] was a problem" because he "just babbles" and was "always talking."
We also note that during his rebuttal remarks in response to the prosecutor's argument that Lallement and juror No. 6 were joking around when juror No. 6 "did that cough 'guilty' thing, " Gonzalez's counsel, Davitt, relied on juror No. 6's misconduct in the jury box in support of defendants' claim that juror No. 6 committed misconduct by prejudging the case and expressing genuine prejudice against them. Specifically, as already noted, Davitt argued that "we do know a little something about [juror No. 6's] predisposition or opinions early in the case because it wasn't before this case really got off the ground that... Alternate Juror [No.] 1... came to us and said, you know, He's making snide remarks about the witnesses and believing or not believing." (Italics added.) Attorney Davitt was referring to juror No. 6's misconduct in the jury box during the morning session on March 13, shortly before the coffee shop incident during the lunch break.
Defendants' reliance on juror No. 6's misconduct in the jury box is unavailing. To the extent defendants claim juror No. 6's jury box misconduct was an indication he had prejudged the case and was prejudiced against them, the record clearly shows his sarcastic sighing and snickering occurred during the People's case-in-chief and were directed at the People's witnesses. Thus, the record does not support defendants' claim that the jury box misconduct was prejudicial. We also note that after alternate juror No. 1 complained to the court about juror No. 6's misconduct in the jury box, and before the court brought the jury back in, the court specifically asked the defense attorneys whether they wanted the court to remove juror No. 6, and they all answered, "No." Furthermore, nothing in juror No. 6's statements during the three hallway incidents (discussed, ante) indicates he had prejudged the case or was prejudiced against any of the defendants.
In addition, we note that in finding juror No. 6's "conduct was not so prejudicial that it [led] to a miscarriage of justice, " the court pointed out that it never received a request from any of the defense attorneys that a defense investigator be allowed to look for and find juror No. 6 for the purpose of presenting his testimony at the evidentiary hearing on the new trial motion.
The California Supreme Court has cautioned that "the criminal judicial system must not be rendered impotent in quest of an ever-elusive perfection, " and "[i]f [the criminal judicial] system is to function at all, we must tolerate a certain amount of imperfection short of actual bias." (In re Carpenter, supra, 9 Cal.4th at pp. 654-655; see also In re Hamilton, supra, 20 Cal.4th at p. 296.) Our high state court's admonition is applicable here. Although Juror No. 6's inability to remain quiet was annoying and distracting to other jurors, it did not rise to the level of actual bias. (See In re Carpenter, supra, 9 Cal.4th at p. 654.)
For all of the foregoing reasons, we independently conclude, based on our review of the entire record and the totality of the circumstances surrounding juror No. 6's acts of misconduct, that the evidence is insufficient to show a substantial likelihood that his misconduct affected the impartiality of any of the other jurors or that he prejudged the case or was actually prejudiced against one or more of the defendants before the case was submitted to the jury for deliberation.
II. MIRANDA
Coronel contends the court prejudicially erred by admitting into evidence his statement to the police that Ruiz's broken car prevented him from running away from the police because his statement was not preceded by a Miranda advisement. We reject this contention.
A. Background
Officer Ellis testified that, during the booking process at the police station, he overheard Coronel, who was in custody, tell Ruiz, "Your car is a piece of shit." When Officer Ellis asked Coronel why he was upset, Coronel replied with words to the effect that he was upset because the passenger door on Ruiz's car was broken, which prevented Coronel from getting out of the car and running away when the police stopped the car.
Coronel moved to suppress his statement to Officer Ellis on the ground Officer Ellis obtained the statement in violation of Miranda, supra, 384 U.S. 436. The prosecutor conceded that Coronel was in custody at the time he made the incriminating statement to Officer Ellis, and thus the only issue under Miranda was whether Officer Ellis's question constituted a custodial interrogation.
After receiving the testimony of Officer Ellis outside the presence of the jury, the court denied Coronel's Miranda request for suppression of his incriminating statement. The court explained:
"I agree with [the prosecutor] that there's nothing that the Court finds that would be reasonably likely to elicit incriminating responses pursuant to the statement made by Detective Ellis. [¶] It appears that [Officer Ellis] was acting in response to the statement made by Mr. Coronel. He was dealing with some young people. I don't even know if he knew their ages at that point. One of his jobs is to make sure that they are safe, and that could have been the reason he asked that question. There could have been various reasons for the question. I think [the prosecutor] went into that a bit. But I don't see that he was sitting there, thinking of a way to elicit any incriminating response by making that comment. [¶] So I would find that there is no Miranda issue and find that both statements would be appropriate in that regard."
B. Applicable Legal Principles
1. The Miranda rule
The California Supreme Court has explained that "[i]n Miranda, the court laid down a rule of a 'prophylactic' nature [citation] in order to protect the privilege against self-incrimination of the Fifth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteenth Amendment: '[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant [by law enforcement officers] unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.... Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.' " (People v. Waidla (2000) 22 Cal.4th 690, 726-727, quoting Miranda, supra, 384 U.S. at p. 444.)
In Pennsylvania v. Muniz (1990) 496 U.S. 582, 600-601, the United States Supreme Court explained that, for purposes of the Miranda rule, the definition of "interrogation" includes more than actual questioning: "In Miranda, the Court referred to 'interrogation' as actual 'questioning initiated by law enforcement officers.' [Citation.] We have since clarified that definition, finding that the 'goals of the Miranda safeguards could be effectuated if those safeguards extended not only to express questioning, but also to "its functional equivalent." ' [Citation.] In Rhode Island v. Innis[ (1980) 446 U.S. 291], the Court defined the phrase 'functional equivalent' of express questioning to include 'any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.' [Citations.] However, 'any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining' what the police reasonably should have known. [Citation.] Thus, custodial interrogation for purposes of Miranda includes both express questioning, and also words or actions that, given the officer's knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to 'have... the force of a question on the accused, ' [citation], and therefore be reasonably likely to elicit an incriminating response." (Italics added.)
"[N]ot all statements obtained by the police from a suspect who is incarcerated or otherwise confined are the product of interrogation." (People v. Ray (1996) 13 Cal.4th 313, 337.) Rather, "[i]n determining whether the prophylactic requirements of Miranda apply, the purpose─not the form─of police interaction with a criminal suspect controls." (Id. at p. 338, fn. 11.)
2. Standard of review
The standard of review that governs an appellate court's determination regarding a claim that a statement or confession was inadmissible because it was obtained in violation of a defendant's Miranda rights is well-established. "We must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported." (People v. Boyer (1989) 48 Cal.3d 247, 263, cert. denied 493 U.S. 975, disapproved on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) "However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained." (Boyer, supra, at p. 263; see also People v. Box (2000) 23 Cal.4th 1153, 1194.) " 'We apply federal standards in reviewing a defendant's claim that the challenged statements were elicited from [the defendant] in violation of Miranda.' " (People v. Box, supra, 23 Cal.4th at p. 1194, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.)
C. Analysis
The undisputed facts show that Officer Ellis heard some sort of disagreement between Ruiz and Coronel, both of whom were in custody in close proximity to one another in the booking room of the police station. As already noted, Officer Ellis overheard Coronel tell Ruiz, "Your car is a piece of shit." Seeing that Coronel was upset, Officer Ellis asked him why he was upset, and Coronel responded by making the self-incriminating statement (discussed, ante) that Coronel unsuccessfully sought to suppress at trial.
From these undisputed facts, we conclude Coronel has failed to meet his burden of showing that, for purposes of the Miranda rule, Officer Ellis should have known his question asking Coronel why he was upset was reasonably likely to elicit an incriminating response from Coronel. Officer Ellis was responsible for maintaining a safe and secure environment in the booking room at the police station where Coronel and Ruiz were being held in custody. The language he heard Coronel use would have caused any reasonable and responsible police officer under those circumstances to believe that Coronel was angry and a physical altercation between Coronel and Ruiz might follow. The purpose of Officer Ellis's question was to maintain a safe and secure environment at the police station during the booking process, rather than to elicit an incriminating statement from Coronel. Without intervening and investigating the nature and source of Coronel's angry statement to Ruiz, Officer Ellis might not have been able to maintain control over Coronel and Ruiz and avoid violence that could have resulted in injury to Coronel, Ruiz, some third party, or himself. We thus reject Coronel's contention that the court erred by admitting his incriminating statement into evidence.
III. SUFFICIENCY OF THE EVIDENCE (COUNT 3: § 246)
Ruiz, Gonzalez, Hernandez, and Coronel contend the evidence is insufficient to support their count 3 convictions of shooting "at" an inhabited dwelling (§ 246). We reject this contention.
A. Standards of Review
When assessing a challenge to the sufficiency of the evidence, we apply the substantial evidence standard of review, under which we view the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the charged crime or allegation proven beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 578; In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) Stated differently, "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." (Johnson, supra, 26 Cal.3d at p. 578.) "The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
"The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.)
We review de novo a pure question of law. (People v. Butler (2003) 31 Cal.4th 1119, 1127.)
B. Analysis
Defendants' contention that the evidence is insufficient to support their count 3 convictions of shooting "at" an inhabited dwelling in violation of section 246 is premised on their assertions that (1) "on its face... section 246 describes a specific intent crime: the shooter must shoot at the building, i.e., must have some intent to hit the building with a bullet" (original emphasis); and (2) "[h]ere, there was no evidence to prove the shooter shot at the [Acostas'] house; the evidence proved he shot at the Acostas." Citing People v. Ramirez (2009) 45 Cal.4th 980 (Ramirez) and People v. Overman (2005) 126 Cal.App.4th 1344, defendants also assert that "the cases that hold section 246 defines a general intent crime... are incorrect."
These assertions are unavailing. Section 246 provides in part: "Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house... is guilty of a felony.... [¶] As used in this section, 'inhabited' means currently being used for dwelling purposes, whether occupied or not." In Ramirez, supra, 45 Cal.4th 980, which is squarely on point, the California Supreme Court recently held that section 246 is a general intent crime. (Id. at pp. 985, fn. 6 ["A violation of section 246 is a general intent crime."], 990 [§§ 246 & 246.3, subd. (a) "are general intent crimes"].)
Defendants seek to avoid Ramirez by claiming the Supreme Court's decision in that case is "incorrect." This claim is unavailing. Even if we were to disagree with Ramirez, and we do not, we are bound by the decisions of the California Supreme Court (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and thus we are bound by the high court's holding in Ramirez that a violation of section 246 is a general intent crime.
In another effort to avoid Ramirez, defendants claim that Ramirez is not binding on this court because its holding that a violation of section 246 is a general intent crime is dictum. Specifically, they assert that "[i]n [Ramirez], the California Supreme Court noted that this body of case law describes... section 246 as defining a general intent crime, but the Supreme Court has never actually analyzed this issue or issued a holding on the subject."
This claim is unpersuasive. As the People properly point out, the issue presented in Ramirez was whether grossly negligent discharge of a firearm (§ 246.3, subd. (a)) is a necessarily included offense of discharge of a firearm at an inhabited dwelling (§ 246). (Ramirez, supra, 45 Cal.4th at pp. 983, 985, 990.) To resolve this issue, the high court was required to apply the "elements" test for determining whether one offense is necessarily included in another because Ramirez involved a conviction of multiple alternative charged offenses. (Id. at p. 985.) The Ramirez court explained that "[u]nder the 'elements' test, we look strictly to the statutory elements, not to the specific facts of a given case, " and "[w]e inquire whether all the statutory elements of the lesser offense are included within those of the greater offense." (Ibid., italics added.) In looking at the statutory elements of the offense of discharge of a firearm at an inhabited dwelling (§ 246), the Supreme Court in Ramirez determined that section 246 is a general intent crime. (Ramirez, supra, 45 Cal.4th at p. 985, fn. 6, citing People v. Watie (2002) 100 Cal.App.4th 866, 879, People v. Jischke (1996) 51 Cal.App.4th 552, 556 & People v. Froom (1980) 108 Cal.App.3d 820, 826.)
As the legal premise of defendants' sufficiency of the evidence challenge is unavailing, we need not, and do not, reach the merits of that challenge. We thus conclude defendants have failed to meet their burden of establishing the evidence is insufficient to sustain their count 3 convictions for discharging a firearm at an inhabited dwelling (§ 246).
IV. SUFFICIENCY OF THE EVIDENCE (COUNTS 1-3 GANG ENHANCEMENTS)
Coronel, Gonzalez, Hernandez, and Ruiz contend the evidence is insufficient to support the jury's true findings on the gang enhancement allegations in counts 1 through 3 because there is no evidence to show the charged offenses were committed to benefit a particular gang. We reject this contention.
A. Background
1. Gang enhancement allegations
Counts 1 through 3 of the second amended information contained gang enhancement allegations that alleged defendants committed the offenses charged in those counts for the benefit of, at the direction of, or in association with an unnamed "criminal street gang" with the specific intent to promote, further and assist in any criminal conduct by gang members within the meaning of section 186.22(b).
2. Testimony of the prosecution's gang experts
At trial, Officer Toussaint and Riverside Police Department Detective Michael Stamps testified as prosecution gang experts about street gangs in the Casa Blanca neighborhood. Officer Toussaint testified that the Casa Blanca Rifa gang was the "overall umbrella" gang in the Casa Blanca neighborhood, which he described as "a very violent area within the community."
Noting there were several cliques or subgroups within the Casa Blanca Rifa gang, Officer Toussaint explained that "certain ones align with other ones and there's a feud going on." He indicated that the Evans Street clique is aligned with the Devil Wolves and Diablos cliques, and all three cliques "work together and defend one another." Officer Toussaint explained that, "[o]n the other side, you have the Fern Street or the Vagabundos"; and the two rival groups of cliques, which he referred to as "the two different gangs, " within the "umbrella" Casa Blanca Rifa gang, "are at war with one another."
Officer Toussaint explained that Joseph's sons─who lived at their father's home on Emerald Street at the time of the shooting─and Lydia's boyfriend were all documented members of the Vagabundos gang in the Casa Blanca Rifa gang. Officer Toussaint indicated that Joseph was a member of the Devil Wolves gang, and thus he and his sons were in rival gangs within the Casa Blanca Rifa gang. Officer Toussaint opined that a member of the Evans Street gang might want to shoot at the victims' house because the house was associated with members of the Vagabundos gang.
Officer Toussaint also opined that defendants were all active members of the Evans Street gang at the time of the January 2007 shooting in this case.
Officer Toussaint also testified that the primary activity of the Evans Street gang was the commission of violent assaults, homicides, and attempted homicides. He described two predicate crimes that were committed by members of the Devil Wolves gang, which is aligned with the Evans Street gang.
Detective Stamps testified that Casa Blanca Rifa, Evans Street, Devil Wolves, and Diablos are all one gang. He then clarified that the Devil Wolves and the Diablos are separate gangs that fall under the umbrella of the Evans Street gang, and the Evans Street gang falls under the larger umbrella of the Casa Blanca Rifa gang.
Detective Stamps also testified that the term "Rifa" is an old gang culture term that means "we rule, " and it has long been used by a lot of gangs in Los Angeles and the Riverside area. He stated that "Casa Blanca Rifa" is a gang term that means "Casa Blanca rules." He also testified that Casa Blanca is "the name of the community" and is "a geographical area, " but Casa Blanca Rifa, like Fern Street and the Diablos, is a gang.
3. Jury's findings
The jury found true the gang enhancement allegations set forth in counts 1 through 3.
B. Applicable Legal Principles
1. Gang enhancements
The California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq., hereafter the STEP Act) "prescribes increased punishment [hereafter referred to as the gang enhancement] for a felony if it was related to a criminal street gang." (People v. Hernandez (2004) 33 Cal.4th 1040, 1047 (Hernandez), citing § 186.22(b)(1).)
Section 186.22, subdivision (f) (hereafter section 186.22(f)) defines the term "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."
To subject a defendant to the penal consequences of the STEP Act, the prosecution must prove beyond a reasonable doubt that the crimes for which he was convicted were committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22(b)(1); see also Hernandez, supra, 33 Cal.4th at p. 1047; People v. Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley).)
To prevail on a section 186.22(b)(1) gang enhancement allegation, the prosecution must also prove beyond a reasonable doubt that the gang " '(1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called "predicate offenses") during the statutorily defined period. (§ 186.22, subds. (e) & (f).)' " (Hernandez, supra, 33 Cal.4th at p. 1047; italics omitted; Gardeley, supra, 14 Cal.4th at pp. 616-617.)
The prosecution may meet its burden of establishing the statutory gang enhancement elements set forth in section 186.22 by presenting expert testimony about criminal street gangs. (Gardeley, supra, 14 Cal.4th at pp. 617-620; Hernandez, supra, 33 Cal.4th at pp. 1047-1048.) "It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang [enhancement] allegation." (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196, citing People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931 (Ferraez).) Expert testimony about gang "culture and habits" may include, but is not limited to, " 'testimony about the size, composition or existence of a gang [citations], gang turf or territory [citations], an individual defendant's membership in, or association with, a gang [citations], the primary activities of a specific gang [citations], motivation for a particular crime, generally retaliation or intimidation [citations], whether and how a crime was committed to benefit or promote a gang [citations], rivalries between gangs [citation], and gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or attire [citations].' " (In re Frank S., supra, 141 Cal.App.4th at p. 1197; People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657.)
A gang expert may render opinion testimony on the basis of facts given in a hypothetical question that asks the expert to assume their truth, but such a hypothetical question must be "rooted in facts shown by the evidence." (Gardeley, supra, 14 Cal.4th at p. 618.)
2. Standard of Review
As discussed, ante, we apply the substantial evidence standard of review to assess the sufficiency of the evidence and under that standard we view the entire record in the light most favorable to the judgment and determine whether it discloses substantial evidence─that is, evidence which is reasonable, credible, and of solid value─from which any rational trier of fact could have found the essential elements of the charged crime or allegation proven beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Johnson, supra, 26 Cal.3d at p. 578; In re Frank S., supra, 141 Cal.App.4th at p. 1196.) We review de novo a pure question of law. (People v. Butler, supra, 31 Cal.4th at p. 1127.)
B. Analysis
Defendants' contention that the evidence is insufficient to support the jury's true findings on the gang enhancement allegations in counts 1 through 3 is premised on their assertions that (1) the prosecution's evidence failed to "identify a single gang for whom [defendants] purportedly committed the crimes"; (2) the "[prosecution's gang] experts testified that defendants belonged to the Evans Street gang within Casa Blanca, but the predicate offenses for this case were committed by members of a gang called the Devil Wolves"; (3) "[t]he experts testified about the way in which the gangs of Casa Blanca were related, but did not identify each individual gang with the requisite specificity under section 186.22[(f)]"; (4) "[w]ithout proof of a qualifying criminal street gang under section 186.22[(f)], the evidence was insufficient to support a finding that [defendants] acted with the specific intent to 'promote, further and assist' a particular gang's activity"; and (5) "[t]aken together, th[e] evidence did not provide the jury with proof beyond a reasonable doubt that a particular criminal street gang was the motivating factor in these crimes" (italics added) because, according to the testimony of the gang experts (Officer Toussaint and Detective Stamps), "the possible gangs could have been 'Casa Blanca Rifa, ' 'Evans Street, ' or 'Devil Wolves.'"
The foregoing set of assertions shows that defendants' insufficiency of the evidence claim is premised on their purely legal contention that the prosecution in this case was required to prove which particular street gang among various street gangs identified within a larger street gang organization each of them specifically assisted or benefited in committing the crimes charged in counts 1 through 3.
The courts in California, however, have addressed and rejected this legal contention. In People v. Williams (2008) 167 Cal.App.4th 983, 987, the Court of Appeal explained that "[e]vidence of gang activity and culture need not necessarily be specific to a particular local street gang as opposed to the larger organization." (Italics added.) In People v. Ortega (2006) 145 Cal.App.4th 1344, 1355-1357, the Court of Appeal held that where substantial evidence shows a larger gang organization made up of different cliques or subsets that share its goals and participate in its activities qualifies as a criminal street gang within the meaning of section 186.22(f), and the defendant in committing the charged offense actively participated in that larger criminal street gang, the prosecution, in order to prove the truth of a section 186.22(b)(1) gang enhancement allegation, is not required to prove the specific subset in which the defendant operated.
Here, as already noted, the expert testimony of the prosecution's gang experts established that although Evans Street, the Devil Wolves, and the Diablos were separate gangs at the time of the January 2007 shooting in this case, they were all cliques or subgroups of the larger umbrella gang, Casa Blanca Rifa, that plagued the Casa Blanca neighborhood at that time. Because these subgroup gangs were all part of the larger Casa Blanca Rifa street gang organization, the prosecution was not required to prove the particular subgroup gang in which each of the defendants operated at the time of the shooting. (People v. Williams, supra, 167 Cal.App.4th at p. 987; People v. Ortega, supra, 145 Cal.App.4th at pp. 1355-1357.)
In any event, the prosecution's expert testimony did establish that defendants were all active members of one particular criminal street gang subgroup─the Evans Street gang─at the time of the shooting. Thus, defendants' principal contention that the evidence is insufficient to show that "a particular criminal street gang was the motivating factor in these crimes" is unavailing.
Also unavailing is defendants' contention that although the prosecution's gang experts testified that defendants belonged to the Evans Street gang, the predicate offenses for this case were committed by members of the Devil Wolves street gang. The expert gang testimony of Detective Stamps established that although the Devil Wolves is a separate street gang, it falls under the umbrella of the Evans Street gang, and the Evans Street gang in turn falls under the larger umbrella of the Casa Blanca Rifa gang. Thus, the evidence shows that defendants and the gang members who committed the predicate offenses were all members of the same gang.
For all of the foregoing reasons, we conclude that substantial evidence supports the jury's true findings on the gang enhancement allegations in counts 1 through 3.
V. DENIAL OF GONZALEZ'S REQUEST TO STRIKE THE GANG ENHANCEMENT
Gonzalez contends the court abused its discretion by denying his request under section 186.22, subdivision (g) (hereafter referred to as section 186.22(g)) to strike the gang enhancement punishment in the interest of justice. We reject this contention.
A. Background
In his new trial motion, Gonzalez requested that the court "strike the gang enhancements." In support of this request, he stated that imposition of the gang enhancements would be unjust because (1) he was a "very young defendant"; (2) there was "zero evidence" he was connected with the Evans Street gang "other than he often spent time with his uncle [Hernandez] who may have known people in the neighborhood, and [he] wrote the name 'Evans Street Gang' while doodling on a school paper several years earlier (he also wrote on that same paper 'Frankster the Gangster' but even the prosecution thought that too silly to argue was proof he was a gang member)"; and (3) he was an "innocent" victim in two prior shootings that left him "partially paralyzed." At the hearing on the new trial motion, Gonzalez's counsel indicated he wished to reserve until sentencing Gonzalez's request to strike the gang enhancements.
In his sentencing memorandum, Gonzalez argued that the court, in the exercise of its discretion, should strike the gang enhancements in the interests of justice because (1) he "was a juvenile when the crime occurred, " (2) he had "suffered two separate gunshot wounds in his short life and walks with a significant limp, " (3) he had "been in custody now for nearly two years, " and (4) his convictions in this case "would most likely result in a long-term prison sentence, if not life in prison, if the court [did] not strike the enhancements." Gonzalez asked the court to consider (1) his "prior criminal history (virtually clean), " (2) his "age, just turning 18 last year, " (3) the fact that none of the victims was injured, and (4) the lack of evidence that he "actually shot anyone."
At Gonzalez's sentencing hearing, his counsel renewed Gonzalez's request that the court strike the gang enhancements in the interest of justice, indicating the court should grant the request so that "this case could be more properly in the eight year range, not 15 [years] to life." Counsel argued it would be unjust to impose "a life term for someone who essentially, at least the jury found, was a ride along."
After indicating it was "not inclined" to strike the gang enhancements, the court denied Gonzalez's request to strike the gang enhancements, stating: "I was the presiding judge in the Juvenile Court for five years [a]nd I don't take this sentencing lightly at all. I know it's very difficult [a]nd I have considered various ways to handle this case.... [A]fter considering the striking of the enhancements, after considering all of the documents in the file, after considering the verdicts that came down, I feel that my indicated [ruling] is fair and appropriate based on that."
B. Applicable Legal Principles
Section 186.22(g) 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." (Italics added.)
The term "may" as used in section 186.22(g) indicates that a trial court's decision whether to strike a gang enhancement under that subdivision is discretionary. Accordingly, we apply the abuse of discretion standard in reviewing the court's decision in this case to not strike the gang enhancements. Under that standard, "a trial court does not abuse its discretion unless its decision is so irrational and arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
C. Analysis
We begin our analysis by noting that in enacting the STEP Act, the Legislature expressly found that "the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." (§ 186.21.) Finding also that these criminal street gang activities "present a clear and present danger to public order and safety and are not constitutionally protected, " the Legislature declared its intent "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." (Ibid.)
Here, the testimony of the shooting victims and their neighbor, Amanda, established that Gonzalez and his fellow Evans Street gang members terrorized the residents of the Casa Blanca neighborhood through their criminal street gang activities. Although Gonzalez minimized in the superior court, and on appeal continues to minimize, his participation in and support of the Evans Street gang and the larger Casa Blanca Rifa umbrella criminal street gang with which the Evans Street gang is associated, the probation officer's report indicated that Gonzalez had been "hanging out" with the members of those gangs since 2003.
The record also shows that in January 2006 when, during the execution of the search warrant at Gonzalez's house in Riverside, the police found a letter from "Frankster the Gangster, AKA Little Shorty" to "Lil' Syco." Detective Stamps testified that Gonzalez used "Lil' Shorty" or "Shorty" as his gang moniker, and Hernandez used "Lil' Syco" as his. During the search, the police found various documents containing graffiti associated with the Evans Street gang, and photographs of Gonzalez, Hernandez, and other known Evans Street gang members giving gang hand signs.
Gonzalez claimed in the trial court that his prior criminal history was "virtually clean." However, the probation officer's report established that in 2003, Gonzalez admitted a petition allegation that he had attempted to commit a second degree robbery in August of that year.
At trial, the prosecution presented evidence showing that in February 2006, while Gonzalez was on probation, his probation officer confiscated from him some notebook papers that were marked with graffiti associated with the Evans Street gang, including a list or roll call of gang members that included Gonzalez.
In sum, Gonzalez has failed to meet his burden of showing that for purposes of section 186.22(g), this is an "unusual case" in which "the interests of justice would best be served" by striking the gang enhancements. We conclude the court did not abuse its discretion in denying Gonzalez's request to strike the gang enhancements.
VI. COUNT 3 SENTENCE OF 15 YEARS TO LIFE
Hernandez, who is joined by Gonzalez, Coronel, and Ruiz, contends the court erred when it imposed on each of them a sentence of "15 years to life" for their count 3 convictions (shooting at an inhabited dwelling in violation of § 246) because the proper term under the alternate penalty provision of section 186.22(b)(4) is life with a minimum parole eligibility of 15 years, and thus their sentences as to count 3 should be modified to "life with a minimum term of 15 years before parole eligibility." We conclude the court did not err.
A. Background
The court sentenced each of the defendants to "the indeterminate term of 15 years to life" under section 186.22(b)(4)(B) as to count 3 (shooting at an inhabited dwelling in violation of § 246).
B. Analysis
Defendants assert that the indeterminate term of "15 years to life" imposed on each of them under section 186.22[(b)(4)(B)] for their count 3 convictions "constitutes an unauthorized sentence because section 186.22(b)(4)(B) calls for a life sentence. There is no separate 15-year-term added to the indeterminate life sentence; rather, there is a minimum term of 15 years to be served before [they are] eligible for parole consideration."
Section 186.22(b)(4)(B) provides: "(4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶]... [¶] (B) Imprisonment in the state prison for 15 years, if the felony is... a felony violation of Section 246...." (Italics added.)
Thus, the statutory penalty applicable here under section 186.22(b)(4)(B) is "an indeterminate term of life imprisonment with a minimum term of... 15 years." The "15 years to life" term the court imposed on each of the defendants under section 186.22(b)(4)(B) for their count 3 convictions is the shorthand equivalent of the statutory penalty of "an indeterminate term of life imprisonment with a minimum term of... 15 years." The abstracts of judgments in this case also use the "15 years to life" shorthand language to refer to the section 186.22(b)(4)(B) penalty the court imposed.
Nothing in the record indicates the court imposed a "separate 15-year-term added to the indeterminate life sentence, " as defendants claim. Accordingly, we conclude the court did not err, and there is no need to modify the judgment with respect to the count 3 sentences imposed by the court.
VII. FIVE-YEAR COUNT 3 GANG ENHANCEMENTS
Defendants contend the five-year concurrent gang enhancement terms reflected in the court's sentencing minute orders and in the "PRISON COMMITMENT - INDETERMINATE" abstracts of judgment as having been imposed under section "186.22(B)" for count 3 (shooting at an inhabited dwelling in violation of § 246) must be stricken, because the court did not orally pronounce this portion of the sentence and the court otherwise relied on the gang enhancement finding for count 3 to sentence them pursuant to the alternate penalty provision in section 186.22(b)(4).
A review of the reporter's transcript of the sentencing proceedings in this case indeed shows that in its oral pronouncements of the sentences, the court did not impose such a sentence, as the People acknowledge. The People assert they "would not object to the minutes and abstracts of judgment being modified to strike the enhancement as to count 3 to conform to the trial court's oral pronouncement of sentence."
Gonzalez was sentenced on December 19, 2008. Coronel was sentenced on January 7, 2009. Hernandez was sentenced on January 9, 2009. Ruiz was sentenced on January 23, 2009.
For the foregoing reasons, we shall direct the trial court to amend both the sentencing minutes and the corresponding abstracts of judgment to strike the entries incorrectly indicating the court imposed on each defendant a concurrent five-year gang enhancement as to count 3.
VIII. FAILURE TO STAY THE COUNT 4 SENTENCES UNDER SECTION 654
Gonzalez, Hernandez, and Ruiz contend the court erred in failing to stay the concurrent two-year sentence it imposed for each of their convictions of count 4 (participating in a criminal street gang in violation of § 186.22(a)). We reject this contention.
A. Background
As already noted, the victims of the drive-by shooting incident in this case included Lydia Acosta and her father, Joseph. As a result of the shooting, defendants were each convicted of two counts of assault with a firearm in violation of section 245(a)(2): Count 1 (victim: Lydia) and count 2 (victim: Joseph).
As we shall discuss, post, a third victim, Lydia's mother (Joseph's wife), was inside the victims' home at the time of the shooting.
The jury also found true gang enhancement allegations that defendants committed the assault offenses charged in counts 1 and 2 for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members within the meaning of section 186.22(b)(1).
In addition, the jury convicted Gonzalez, Hernandez, and Ruiz of one count of actively participating in a criminal street gang known as the Evans Street gang (count 4: § 186.22(a)). Coronel was not charged with that count 4 offense.
In sentencing Gonzalez, Hernandez, and Ruiz, the court ordered that the two-year sentences it imposed for their count 4 street terrorism offenses run concurrently with their count 1 assault with a firearm sentences.
B. Applicable Legal Principles
1. Section 654
Section 654, subdivision (a) provides in part: "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."
Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591) and ensures that the defendant's punishment will be commensurate with his or her criminal culpability. (People v. Kramer (2002) 29 Cal.4th 720, 723.) If a defendant suffers two convictions, and punishment for one is barred by section 654, that section requires that the sentence for one conviction be imposed, and that the other be imposed and then stayed. (Deloza, supra, 18 Cal.4th at pp. 591-592.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant, not the temporal proximity of the offenses. (People v. Hicks (1993) 6 Cal.4th 784, 789.) If all the criminal acts were incident to one objective, then punishment may be imposed only as to one of the offenses committed. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) If, however, the defendant harbored multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
2. Standard of review
Generally, the trial court has broad discretion in determining the factual issue of whether a defendant has multiple objectives for purposes of section 654, and on appeal we will uphold the court's express or implied finding that a defendant held multiple criminal objectives if it is supported by substantial evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730; People v. Blake (1998) 68 Cal.App.4th 509, 512.)
C. Analysis
Gonzalez, who is joined by Hernandez and Ruiz, contends the conduct giving rise to the charges in count 2 (assault upon Joseph Acosta, Sr., with a firearm in violation of § 245(a)(2)) and count 4 (active participation in a criminal street gang in violation of § 186.22(a)) "comprised an indivisible course of conduct with a single intent and objective"─i.e., "to avenge rival gang members['] prior actions"─and thus the court's failure to stay their count 4 sentences under section 654 was erroneous.
Similarly, Hernandez, whom Gonzalez and Ruiz join, contends he could not lawfully be punished "more than once for each victim, " and his count 4 sentence should have been stayed under section 654, because the trial evidence showed that "the shooting in this case was committed in retaliation for an earlier shooting by a rival gang, " and thus "there was only one intent and objective shown even though multiple offenses were committed."
As we shall explain, post, Hernandez, Gonzalez, and Ruiz incorrectly assert that the evidence presented at trial shows there were only two victims of the shooting at the Acostas' house: Lydia and her father, Joseph.
These contentions are unavailing because we conclude that, for purposes of section 654, the intent and objective Gonzalez, Hernandez, and Ruiz harbored in committing their count 2 assault with a firearm offenses were independent of their intent and objective in committing the count 4 gang participation offenses, even though they committed the count 2 and count 4 offenses during a single and indivisible course of conduct. We are guided in our analysis by the decisions in People v. Herrera (1999) 70 Cal.App.4th 1456 (Herrera), Ferraez, supra, 112 Cal.App.4th 925, and In re Jose P. (2003) 106 Cal.App.4th 458.
In Herrera, two criminal street gangs engaged in a series of retaliatory shootings. In the most recent one, shots were fired at a house occupied by members of the defendant's gang. One of them then drove and picked up the defendant, who told his girlfriend that his "home boys were after the guys." (Herrera, supra, 70 Cal.App.4th at p. 1461.) The defendant and his cohort then drove by a house identified with the rival gang and fired three shots, made a U-turn, drove by again, and fired more shots. On the first pass, two people were hit. (Ibid.) As a result, the defendant was convicted of (among other things) one count of active participation in a criminal street gang (§ 186.22(a)) and two counts of attempted murder. (Id. at p. 1462.) The sentencing court ordered that the sentence imposed for the gang participation count run concurrently with the sentences imposed for the attempted murder counts. (Ibid.)
In holding that section 654 did not require the trial court to stay the sentence imposed for the gang participation (or street terrorism) count (§ 186.22(a)), the Court of Appeal in Herrera looked to the defendant's intent and objective with respect to each crime, and concluded that the street terrorism crime was "divisible" from the attempted murder crimes, and thus not subject to section 654. (Herrera, supra, 70 Cal.App.4th at p. 1466.) The court explained that "[t]he characteristics of attempted murder and street terrorism are distinguishable, even though aspects of one may be similar to those of the other" (ibid.); the defendant's objective in committing the attempted murders was "simply a desire to kill"; and the identities or gang affiliations of his intended victims were irrelevant. (Id. at p. 1467.) The Herrera court also explained that, in contrast, section 186.22(a) "encompasses a more complex intent and objective, " noting that (1) section 186.22(a) is part of the STEP Act (discussed, ante), (2) the Legislature passed the criminal penalties set forth in the STEP Act in response to the increasing violence of street gang members throughout the state, and (3) prior to the STEP Act "there was no existing law that made the punishment for crimes by a gang member separate and distinct from that of the underlying crimes." (Herrera, supra, at p. 1467, italics added.)
Noting also that street terrorism is "a substantive offense whose gravamen is the participation in the gang itself, " the Herrera court further explained that under section 186.22(a) "the defendant must necessarily have the intent and objective to actively participate in a criminal street gang." (Herrera, supra, 70 Cal.App.4th at p. 1467, fn. omitted.) However, it stated, the defendant "does not need to have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendant's objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense." (Ibid., italics added.) The Court of Appeal concluded that section 186.22(a) "requires a separate intent and objective from the underlying felony committed on behalf of the gang" (italics added), noting that "[t]he perpetrator of the underlying crime may thus possess 'two independent, even if simultaneous, objectives[, ]' thereby precluding application of section 654." (Herrera, supra, at p. 1468.)
Turning to the facts of the case before it, the Herrera court then concluded that sufficient evidence supported the finding that the defendant "intended to aid his gang in felonious conduct, irrespective of his independent objective to murder." (Herrera, supra, 70 Cal.App.4th at p. 1468, italics added.) The court explained that the defendant's active participation in his gang's "payback" against the rival gang fell "squarely within the provisions of section 186.22[(a)], street terrorism, " which "require[d] the defendant to actively participate in a criminal street gang, have knowledge that its members engage in criminal activity, and have the intent and objective to further the gang's felonious conduct." (Ibid.) The court also explained that the defendant "had the simultaneous although separate objective to actively participate in and promote his gang when he attempted to murder [rival] gang members." (Ibid., italics added.)
Finally, in support of its holding that the trial court was not required to stay the street terrorism sentence under section 654, the Herrera court added: "[I]f section 654 were held applicable here, it would render section 186.22[(a)] a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang." (Herrera, supra, 70 Cal.App.4th at p. 1468.) Citing People v. Latimer (1993) 5 Cal.4th 1203, 1211, for the proposition that the purpose of section 654 is to insure that a defendant's punishment will be commensurate with his culpability, the Herrera court stated, "We do not believe the Legislature intended to exempt the most culpable parties from the punishment under the street terrorism statutes." (Herrera, supra, at p. 1468, fn. omitted.)
Herrera thus stands for the propositions that (1) section 654 does not preclude multiple punishment for both gang participation (§ 186.22(a)) and the underlying felony, at least when the underlying felony requires a specific intent; and (2) and as long as there is both sufficient evidence of the specific intent necessary to support the conviction for gang participation, and sufficient evidence of the specific intent necessary to support the conviction for the underlying felony, as a matter of law there is sufficient evidence the defendant had two independent, if simultaneous, objectives. We find persuasive the holding and reasoning in Herrera.
We agree with the Fourth District, Division Two's interpretation of Herrera in People v. Sanchez (2009) 179 Cal.App.4th 1297, 1311.
Herrera was followed by Ferraez, supra, 112 Cal.App.4th 925 and In re Jose P., supra, 106 Cal.App.4th 458, both of which held that multiple punishment for gang participation and the underlying offense is permissible as long as the underlying offense requires a different specific intent. (Ferraez, at p. 935 [possession of drugs with the intent to sell]; In re Jose P., at pp. 470-471 [robbery].) To the extent the cases on which Gonzalez, Hernandez, and Ruiz principally rely are contrary to Herrera, Ferraez, and In re Jose P., we decline to follow them.
People v. Vu (2006) 143 Cal.App.4th 1009; People v. Sanchez, supra, 179 Cal.App.4th 1297.
This case is similar to Herrera, Ferraez, and Jose P. Here, the evidence is sufficient to support the jury's findings that Gonzalez, Hernandez, and Ruiz assaulted Lydia and her father with a firearm with the intent to "willfully commit[] an act that by its nature [would] probably and directly result in injury to another." (People v. Colantuono (1994) 7 Cal.4th 206, 214-215; People v. Golde (2008) 163 Cal.App.4th 101, 108-109.) To quote Herrera, "[f]or these convictions, the identities (or gang affiliations) of [their] intended victims were irrelevant." (Herrera, supra, 70 Cal.App.4th at p. 1467.) The evidence is also sufficient to support findings that they committed those felony assault offenses to promote or assist their gang, and that their separate intent and objective in violating section 186.22(a) was participation in the gang itself.
None of the defendants challenges the sufficiency of the evidence to support their assault with a firearm convictions.
While Gonzalez, Hernandez, and Ruiz may have acted in pursuit of both objectives simultaneously, the objectives were nevertheless independent of each other. (See Herrera, supra, 70 Cal.App.4th at pp. 1466-1468; Ferraez, supra, 112 Cal.App.4th at p. 935; In re Jose P., supra, 106 Cal.App.4th at pp. 470-471.) Therefore, we conclude the trial court was not required to stay their sentences for the gang crime under section 654. "[I]f section 654 were held applicable here, it would render section 186.22[(a)] a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang." (Herrera, supra, at p. 1468.)
IX. FAILURE TO STAY THE COUNT 2 SENTENCES UNDER SECTION 654
Last, defendants all contend the court should have stayed under section 654 the concurrent sentences it imposed for their convictions of count 2 (assault upon Joseph Acosta, Sr., with a firearm in violation of section 245(a)(2). We reject this contention, which the People do not address.
A. Applicable Legal Principles
Under the "multiple victim" exception to section 654, a defendant may be convicted and punished for each crime of violence committed against a different victim "even though the defendant entertains but a single principal objective during an indivisible course of conduct." (People v. Ramos (1982) 30 Cal.3d 553, 587, revd. on other grounds in California v. Ramos (1983) 463 U.S. 992; People v. Garcia (1995) 32 Cal.App.4th 1756, 1781 (Garcia).) "The multiple victim exception, simply stated, permits one unstayed sentence per victim of all the violent crimes the defendant commits incidental to a single criminal intent." (Garcia, supra, 32 Cal.App.4th at p. 1784.)
We incorporate herein our prior discussion of section 654.
The multiple victim exception is based on the rationale that "when a defendant '"commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons, " his greater culpability precludes application of section 654.'" (People v. McFarland (1989) 47 Cal.3d 798, 803; Garcia, supra, 32 Cal.App.4th at p. 1781.)
B. Analysis
As already discussed, defendants were each convicted of two counts of assault with a firearm (§ 245(a)(2)) as a result of the shooting incident at the victims' residence: One involving Lydia (count 1) and the other (count 2) involving her father, Joseph.
Defendants contend that, "[a]bsent any evidence to show that anyone other than Lydia and Joseph were present at the time of the shooting, [they were] improperly subjected to multiple punishment in violation of [section 654] when [they] were sentenced for both counts of assault with a deadly firearm along with the [count 3] offense of shooting at an inhabited dwelling since there were only two victims of the shooting." (Italics added.) Citing People v. Kane (1985) 165 Cal.App.3d 480, 488, defendants assert that, "under [the multiple victim] exception [to section 654], it was wholly permissible for [each of them] to be convicted and sentenced for two of the shooting-related offenses since there were two victims of those crimes. But, by the same token, because there were only two victims, the court was required to stay the sentence for one of the assault with a firearm convictions since the act of firing a weapon at the two victims as well as the house could only be punished twice, not three times." (Italics added.)
We conclude these contentions are without merit, and thus we reject defendants' claim that the court should have stayed under section 654 the concurrent sentences it imposed for their count 2 convictions. The evidence showed that several gunshots were fired at Lydia and Joseph, who were at or near the front door of their home at the time of the shooting. Defendants acknowledge that the evidence presented during the trial established that four persons lived in the victims' home. Defendants' suggestion that no one other than Joseph and Lydia were at the house at the time of the shooting is not supported by the trial record. Lydia testified that her mother was in the house at that time. Thus, contrary to their assertion that "there were only two victims of the shooting, " the evidence shows there were at least three victims of the shooting.
Joseph testified that at the time of the shooting, he was living in the house with his wife, one of his sons, and another daughter. He could not recall whether Lydia, who lived with him "off and on, " was living there at the time of the shooting.
On this record, the application of the section 654 multiple victim exception clearly allows defendants to be punished under both count 1 and count 2. Under that exception, as already discussed, a defendant may be convicted and punished for each crime of violence committed against a different victim "even though the defendant entertains but a single principal objective during an indivisible course of conduct." (People v. Ramos, supra, 30 Cal.3d at p. 587; Garcia, supra, 32 Cal.App.4th at pp. 1781, 1784.) Here, Lydia, as the victim of the assault with a firearm crime charged in count 1, and Joseph, as the victim of the assault with a firearm crime charged in count 2, were victims of the crimes of violence the defendants committed in an indivisible course of conduct. Because defendants " ' "commit[ted] an act of violence with the intent to harm more than one person or by means likely to cause harm to [more than one person, " defendants'] greater culpability precludes application of section 654' " and allows each them to be punished under both count 1 and count 2. (People v. McFarland, supra, 47 Cal.3d at p. 803; Garcia, supra, 32 Cal.App.4th at p. 1781.)
Defendants' reliance on People v. Kane, supra, 165 Cal.App.3d 480, is unavailing. Kane is distinguishable in that it involved only one victim. (Id. at p. 484.)
DISPOSITION
The judgments are affirmed. The matter is remanded to the superior court with directions to correct the following clerical errors:
1. With respect to Coronel's sentence, both the court's January 7, 2009 minutes and the corresponding abstract of judgment incorrectly indicate the court stayed the count 1 five-year gang enhancement (§ 186.22(b)(1)(A)). The trial court is directed to amend both the minutes and the abstract of judgment to reflect that the court imposed a consecutive five-year gang enhancement (§ 186.22(b)(1)(A)) as to count 1;
2. Also with respect to Coronel's sentence, both the court's January 7, 2009 minutes and the abstract of judgment incorrectly indicate that the court imposed a consecutive five-year gang enhancement (§ 186.22(b)(1)(A) as to count 2. The trial court is directed to amend both the minutes and the abstract of judgment to reflect that the court imposed a concurrent five-year gang enhancement (§ 186.22(b)(1)(A)) as to count 2; and
3. The trial court is directed to amend all four sets of sentencing minutes and the corresponding "PRISON COMMITMENT - INDETERMINATE" abstracts of judgment to strike the entries incorrectly indicating the court imposed on each defendant a concurrent five-year gang enhancement as to count 3.
The trial court is directed to prepare amended sentencing minutes and amended abstracts of judgment in conformity with this opinion and the foregoing directions, and to forward certified copies of the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: HALLER, J., O'ROURKE, J.