Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, No. SWF018600, John I. Kelly, Judge.
IRION, J.
A jury convicted Oscar Armando Mendoza of attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 664), assault with a deadly weapon (§ 245, subd. (a)(1)), robbery (§ 211), and misdemeanor vandalism (§ 594, subd. (a)). The jury also made true findings that Mendoza personally used a deadly weapon during the commission of the attempted murder and robbery offenses (§ 12022, subd. (b)(1)), that he personally inflicted great bodily injury during the commission of the attempted murder and assault with a deadly weapon offenses (§ 12022.7, subd. (a)), and that all of the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). The court sentenced Mendoza to prison for a total consecutive term of 15 years to life, plus 18 years eight months.
Statutory references are to the Penal Code.
Mendoza appeals, contending insufficient evidence supports the gang enhancements; the court erred in imposing the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C); and the court erred when it failed to stay his sentence for robbery under section 654.
We conclude that the gang enhancements are not supported by sufficient evidence, and accordingly reverse the jury's true findings as to those enhancements. In light of this ruling, Mendoza's appellate contention that the trial court erred in imposing the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C) is moot. Finally, we conclude the court did not err by declining to stay Mendoza's sentence for his robbery conviction under section 654.
FACTUAL AND PROCEDURAL BACKGROUND
On August 6, 2006, Gabriel Jones was walking home after socializing and drinking beer at a friend's house. He encountered Mendoza; Jorge Alatorre; and a youth identified as Jose, who was spray-painting graffiti on a fence. Mendoza and Alatorre were members of a gang called Los Amigos - or "the Friends." Mendoza walked up to Jones and asked "Where you from, Homes?" Jones told Mendoza his name and said he "wasn't from nowhere" and that he did not "gang-bang." Jones then shook their hands and offered them beer. Mendoza and Alatorre informed Jones that they were from East Los Angeles and were in the area to take it over. Jones then borrowed Mendoza's cell phone and made calls to his ex girlfriend over the next 25 minutes.
Meanwhile, a car pulled up and stopped at the corner. Mendoza jogged to the car, bent over into the passenger's side window and talked with someone in the car for about five minutes.
Mendoza then walked back to Jones. After completing his calls, Jones handed the phone to Mendoza. Almost immediately, Mendoza and Alatorre began punching him. Jones tried to defend himself by pushing them away, swinging at them and by backing into the street. Jones then felt a "sharp stick" on his right side stomach area and in his back. Mendoza had stabbed him with a knife.
Jones was then struck by the car that earlier had pulled to the corner. He was thrown into the air and landed on his face, injuring his leg in the process. Mendoza came over to where Jones was lying. Mendoza told Jones to hand over everything and went through Jones's pockets, while holding a knife to his neck and saying "You know what? I'll kill you. I'll kill you, Homes." Jones begged Mendoza not to kill him, and pleaded that he had two beautiful girls at home. Mendoza took $140 and a bag of marijuana from Jones.
After Mendoza took the money and drugs, he tried to stab Jones in the neck but Jones blocked the knife with his hand. The knife cut the web area between Jones's thumb and index finger. The men then laughed and left the scene.
Jones dragged himself to the curb and screamed for help. The police arrived and Jones was taken to the hospital, where he was treated for a dislocated right knee, abrasions in his left eyebrow area, and for the cut to his hand and stab wound to his abdomen area.
After a jury trial, Mendoza was convicted of attempted premeditated murder (§§ 187, subd. (a), 664), assault with a deadly weapon (§ 245, subd. (a)(1)), robbery (§ 211), and misdemeanor vandalism (§ 594, subd. (a)). The jury made true findings that Mendoza personally used a deadly weapon during the commission of the attempted murder and robbery offenses (§ 12022, subd. (b)(1)), that he personally inflicted great bodily injury during the commission of the attempted murder and assault with a deadly weapon offenses (§ 12022.7, subd. (a)), and that all of the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)).
On May 15, 2009, the court sentenced Mendoza to an indeterminate term of 15 years to life for attempted premeditated murder, and added consecutive terms for various enhancements attached to the conviction, including one year for the use of a deadly weapon, three years for personally inflicting great bodily injury and 10 years for committing the crime for the benefit of a criminal street gang. The court then imposed a consecutive one year term for robbery (one-third the middle term), three years and four months for the gang enhancement (one-third the middle term), and four months for the deadly weapon use (one-third the middle term). Under section 654, the court stayed the sentence on Mendoza's assault with a deadly weapon and misdemeanor vandalism convictions, as well as the gang enhancement attached to the vandalism conviction. This resulted in a total consecutive prison sentence of 15 years to life, plus 18 years eight months.
DISCUSSION
I
The Gang Enhancements Are Not Supported by Sufficient Evidence
The California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.) prescribes certain additional penal consequences for crimes committed by members of a criminal street gang. To subject a defendant to these consequences, the prosecution is required to prove, beyond a reasonable doubt, that the crimes for which the defendant is being tried 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, subd. (b)(1); People v. Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley); People v. Sengpadychith (2001) 26 Cal.4th 316, 326 (Sengpadychith).) The prosecution also has to prove 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 subdivision (e) of 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); People v. Vy (2004) 122 Cal.App.4th 1209, 1222 (Vy).)
At issue in this case is whether sufficient evidence supports the jury's finding that the Los Amigos gang had, as one of its primary activities, the commission of one or more of the criminal acts listed section 186.22, subdivision (e). "The phrase 'primary activities, ' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. (Citation omitted.) That definition would necessarily exclude the occasional commission of those crimes by the group's members. [¶] Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute." (Sengpadychith, supra, 26 Cal.4th at pp. 323-324.) Evidence that members of the group have committed only one offense enumerated in section 186.22, subdivision (e) is not enough to show that commission of the section 186.22, subdivision (e) crimes is one of the gang's primary activities. (Vy, supra, 122 Cal.App.4th at p. 1223; In re Jorge G. (2004) 117 Cal.App.4th 931, 945.)
Those offenses, described more fully in section 186.22, subdivision (e), are: (1) assault with a deadly weapon or by means of force likely to produce great bodily injury; (2) robbery; (3) unlawful homicide or manslaughter; (4) the sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances; (5) shooting at an inhabited dwelling or occupied motor vehicle; (6) discharging or permitting the discharge of a firearm from a motor vehicle; (7) arson; (8) the intimidation of witnesses and victims; (9) grand theft; (10) grand theft of any firearm, vehicle, trailer, or vessel; (11) burglary; (12) rape; (13) looting; (14) money laundering; (15) kidnapping; (16) mayhem; (17) aggravated mayhem; (18) torture; (19) felony extortion; (20) felony vandalism; (21) carjacking; (22) the sale, delivery, or transfer of a firearm; (23) possession of a pistol, revolver, or other firearm capable of being concealed upon the person; (24) threats to commit crimes resulting in death or great bodily injury; (25) theft and unlawful taking or driving of a vehicle; (26) felony theft of an access card or account information; (27) counterfeiting, designing, using, attempting to use an access card; (28) felony fraudulent use of an access card or account information; (29) unlawful use of personal identifying information to obtain credit, goods, services, or medical information; (30) wrongfully obtaining Department of Motor Vehicles documentation; (31) prohibited possession of a firearm; (32) carrying a concealed firearm; and (33) carrying a loaded firearm.
We utilize the substantial evidence test to determine whether the prosecution introduced sufficient evidence to establish a section 186.22, subdivision (b) gang enhancement - specifically, whether one of the primary activities of the Los Amigos gang was the commission of one or more of the crimes listed within subdivision (e) of that statute. (See People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) "[W]e examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - evidence that is reasonable, credible and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053, citing People v. Johnson (1980) 26 Cal.3d 557, 578; Vy, supra, 122 Cal.App.4th at p. 1224.) We reverse only if it "appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Applying this standard, we must reverse the jury's true finding as to the gang enhancements. Here, the only evidence proffered as to the activities of the Los Amigos gang was that of gang expert Police Officer Daniel Ponder. While the testimony of a police gang expert may suffice to establish the necessary evidentiary basis for a section 186.22, subdivision (b) gang enhancement, Officer Ponder's testimony fell woefully short of doing so. (Cf., Gardeley, supra, 14 Cal.4th at p. 605.) Officer Ponder testified he did not have personal knowledge about the primary activities of the Los Amigos gang. Nevertheless, when asked about the primary activities of the gang, he responded "[g]raffiti and vandalism would be the most prolific, but also this is assault with a deadly weapon and an armed robbery - or a robbery that took place as well." The testimony was not sufficient to establish an evidentiary basis for the enhancements because: (1) spray-painting graffiti is not an enumerated crime within section 186.22, subdivision (e); (2) the fact that the Los Amigos gang engaged in vandalism did not establish that the damage caused by such vandalism was $400 or more as would be necessary to bring the crime within section 186.22, subdivision (e)(20) (felony vandalism); and (3) the commission of the crimes in this case does not show that the Los Amigos gang consistently and repeatedly engaged in crimes falling within section 186.22, subdivision (e). (See Vy, supra, 122 Cal.App.4th at pp. 1223-1224; In re Jorge G., supra, 117 Cal.App.4th at p. 945.)
The Attorney General concedes the evidence is insufficient to uphold the jury's finding.
Consequently, we conclude that because upon no hypothesis whatever is there sufficient substantial evidence to establish that one of the primary activities of the Los Amigos gang is the commission of one or more of the crimes listed in section 186.22, subdivision (e), we strike the jury's true gang enhancement findings and remand the case for resentencing. (See Burks v. United States (1978) 437 U.S. 1, 18; People v. Hatch (2000) 22 Cal.4th 260, 271-272; U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.)
In light of our reversal of the gang enhancements, Mendoza's appellate contention that the trial court erred in failing to stay the attempted murder gang enhancement is moot. Moreover, as we are reversing and remanding the case for resentencing, after which a new abstract of judgment will issue, we need not address Mendoza's separate claim that the minutes of the sentencing hearing and abstract of judgment should be ordered corrected.
II
Section 654 Does Not Require the Sentence for the Robbery Count To Be Stayed
Mendoza next contends the trial court erred by not staying his sentence for robbery under section 654 because the attempted murder and robbery counts arose from a single course of conduct. Mendoza "reasons that the initial stabbing was the force used to committed [sic] the robbery, so the attempted murder and robbery offenses arose from a single course of conduct, and the provisions of section 654 prohibited more than one sentence on these two convictions." As we will explain, we disagree.
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." "[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.... If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551 (Perez), citations omitted.) Whether offenses are "indivisible" for these purposes is determined by the "defendant's intent and objective, not the temporal proximity of his offenses." (People v. Harrison (1989) 48 Cal.3d 321, 335.) "If [a] defendant harbored 'multiple criminal objectives, ' which 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.' " (Ibid., italics added.)
The application of section 654, thus, "turns on the defendant's objective in violating" multiple statutory provisions. (People v. Britt (2004) 32 Cal.4th 944, 952.) The law gives the trial court broad latitude to make the determination as to whether a defendant had more than one objective in violating multiple statutory provisions. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) The determination is factual in nature and "will not be reversed on appeal unless unsupported by the evidence presented at trial." (People v. Saffle (1992) 4 Cal.App.4th 434, 438 [approving substantial evidence standard of review].)
Here, the trial court found that "although it appears the [robbery] offense was committed closely in time and place to [the attempted murder], the act of robbery appears to have occurred separate from... when the victim was initially stabbed by the defendant, which is the [attempted murder, ] [a]nd after the victim was reportedly hit by a vehicle[;] accordingly, it does not appear sentencing limitations pursuant to Section 654 exist."
The transcription of the trial court's finding is somewhat garbled. The trial court indicated that it had reviewed the probation officer's report, and was imposing sentence in accordance with the recommendation in the report. The relevant portion of that report states: "As to Count III [robbery] and its respective enhancements, although it appears the offense was committed closely in time and place to Count I [attempted murder], the act of robbery appears to have occurred separate from when the victim was initially stabbed by the defendant, and after the victim was reportedly hit by a vehicle. Accordingly, it does not appear sentencing limitations pursuant to Section 654 exist."
Substantial evidence supports the trial court's finding of divisibility. First, Mendoza stabbed Jones in the side stomach area, establishing the necessary elements for the attempted premeditated murder count. (§§ 187, subd. (a), 664; People v. Lee (2003) 31 Cal.4th 613, 623 [attempted murder requires the intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing].) At this point, the attempted premeditated murder offense was complete, and no further acts were necessary to effectuate the crime.
See generally People v. Moore (2002) 96 Cal.App.4th 1105, 1114 (sufficient evidence of intent to kill necessary to support an attempted premeditated murder conviction can be inferred from the fact that the assailant used a deadly weapon, such as a knife, and targeted the abdomen, a vital area of the victim's body); see also People v. Bolden (2002) 29 Cal.4th 515, 560-561 (plunging of a knife into a vital area of the body such as the back of an unsuspecting victim leads to the conclusion there was no other intent but intent to kill); People v. Morris (1988) 46 Cal.3d 1, 22-23, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5, 545, fn. 6 (when one plans to engage in illicit activity at isolated location during early morning hours and brings a deadly weapon which is later employed, it is reasonable to infer that person considered possibility of homicide from outset, such that there exists substantial evidence of a planned killing); People v. Alcala (1984) 36 Cal.3d 604, 626, overruled on other grounds in People v. Falsetta (1999) 21 Cal.4th 903, 911 (while use of deadly weapon is not always evidence of plan to kill, fact that defendant brought along deadly weapon which he subsequently employed makes it reasonable to infer that he considered possibility of homicide from outset).
After completing the crime of attempted premeditated murder, and after Jones was hit and thrown into the air by the car, Mendoza could have simply walked away. Instead, he went to Jones and took his belongings, while holding a knife to Jones's neck and threatening to kill him. (§ 211 ["Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by force or fear."]; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057.) It was this separate threat of killing Jones, not the initial stabbing, that formed the factual basis for the force or fear necessary to accomplish the robbery. Mendoza's argument that the initial stabbing formed the basis of the force or fear necessary to accomplish the robbery ignores the trial court's factual determination that the attempted murder occurred, Jones was hit by the car and he was then robbed, and the evidence supporting that determination. To accept Mendoza's argument would require us to ignore his criminal acts of holding a knife to Jones's neck and saying "You know what? I'll kill you. I'll kill you, Homes" while taking his belongings. We conclude substantial evidence supports the trial court's implied finding that in robbing Jones, Mendoza harbored a separate criminal objective, which was independent of and not incidental to the attempted premeditated murder.
See generally People v. Smith (1963) 223 Cal.App.2d 431, 432 (evidence supported robbery conviction where defendant held knife to victim's neck and took his wallet); People v. Klimek (1959) 172 Cal.App.2d 36, 39-40, 42 (evidence supported robbery conviction where defendant poked an ice pick in victim's side, threatened to kill him, and took his money and watch).
People v. Nguyen (1988) 204 Cal.App.3d 181 provides an independent but related basis for our conclusion. In Nguyen, an attempted murder occurred during a robbery, and the court concluded it was a separate, divisible offense from the robbery because it was gratuitous violence beyond what was necessary to accomplish the original offense. (Id. at pp. 191-193.) Here, Mendoza's subsequent act of holding a knife to Jones and taking his property (robbery) was gratuitous violence not necessary to accomplish attempted premeditated murder.
Affording the court's fact-bound determination the deference it deserves, and to comport with section 654's purpose of "insur[ing] that a defendant's punishment will be commensurate with his culpability, " we conclude the court did not err in imposing a consecutive sentence for the robbery conviction. (Perez, supra, 23 Cal.3d at p. 552.)
DISPOSITION
The criminal street gang enhancements are reversed and the case is remanded for resentencing. In all other respects the judgment is affirmed.
WE CONCUR: O'ROURKE, Acting P. J., AARON, J.