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In People v. Pena (Aug. 29, 2017, G053303) [nonpub. opn.] (Pena), this court held there was insufficient evidence the alleged gang was a criminal street gang as statutorily defined.
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G053303
08-29-2017
THE PEOPLE, Plaintiff and Respondent, v. GILBERTO JESUS PENA, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10NF0523) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed in part, reversed in part, and remanded. Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
Gilberto Jesus Pena (Pena) appeals from a judgment after a jury convicted him of conspiracy to commit murder, two counts of assault with a firearm, one count of active participation in a criminal street gang, and numerous enhancements. The criminal complaint also included allegations against his brother Juan Pena (Juan) and a friend, Pablo Hernandez (Pablo). However, Juan's case was tried separately and before Pena's trial. A jury convicted Juan of attempted murder and street terrorism and found true numerous enhancements, including that he committed the attempted murder for the benefit of a criminal street gang. In 2015, we considered Juan's appeal and reversed the street terrorism conviction and the jury's finding on the street terrorism enhancement, remanding the matter for resentencing. (People v. Pena (Nov. 12, 2015, G049885) [nonpub. opn.] (Pena I).) We grant Pena's motion to take judicial notice of that decision. (Evid. Code, § 459, subd. (a).)
In the appeal before us now, Pena raises a similar claim to the one raised by his brother. He argues there was insufficient evidence to support the gang enhancement. In addition, Pena asserts his counsel was ineffective for failing to object to the prosecutor's argument on reasonable doubt. Finally, he maintains the abstract of judgment contains a mistake. The Attorney General concedes there is a mistake in the abstract of judgment and we agree it must be corrected. We agree with Pena's first claim but find the second contention lacks merit. According, the judgment is affirmed in part, reversed in part, and remanded for resentencing.
FACTS
Because the issues raised on appeal concern the sufficiency of the gang evidence, we need only provide a brief summary of the facts underlying the conspiracy and attempted murder charges. Suffice it to say, Pena, Juan, and Pablo were members of the Varrio Sureno Insane (VSI) gang and were interested in finding and harming members of the South Side Brown Demons (SSBD) gang, and in particular a man called "Smalls." They first approached two men (Alexis Uribe and Thomas Coffman) riding bicycles in front of the Covered Wagon Motel and mistook one of the men for Smalls. Pablo and Juan pointed guns at the bicyclists but eventually determined the men were not SSBD members (the Covered Wagon incident, counts 8 & 9). Eight days later, Pena drove Juan and Pablo to Aaron Guardado's apartment. Juan shot but missed Guardado, a SSBD member, as he lay sleeping on a couch. Pena was Juan's get-away driver (the apartment shooting, counts 10 & 11).
A more detailed account of the shootings are contained in Pena I.
Pena was also charged with, but acquitted of, the attempted murder of Leslie S., Robert T., Orlando R., Terry B., Dijon B., and Jorge C., and of the assault with a firearm on Jorge C. (counts 1 through 7). Because Pena was acquitted, we need not describe the nature of these offenses in detail, but we mention them briefly because the gang expert relied on all the charged offenses in forming his opinion VSI was a criminal street gang. Counts 1 through 5 concerned an alleged drive-by shooting directed towards five men in front of a fire station (the fire station shooting). Counts 6 and 7 related to a shooting at a Jack in the Box restaurant parking lot located in SSBD territory, but the intended victim was a member of the Varrio Pobre gang (the Jack in the Box shooting).
A jury found Pena guilty of one count of conspiracy to commit murder (Pen. Code, §§ 182, subd. (a)(1), 187, subd. (a)) (count 8), one count of attempted premeditated murder of Guardado (§ 187, subd. (a), 189, 664, subd. (a)) (count 10), two counts of assault with a firearm of Uribe and Guardado (§ 245, subd. (a)(2)) (counts 9 & 11), and active participation in a criminal street gang (§ 186.22, subd. (a)) (count 12). The jury also found true counts 8 through 11 were gang crimes (§ 186.22, subd. (b)(1)), and that Pena was a principal in a gang crime where another principal used a firearm (§ 12022.53, subd. (c)). The trial court sentenced Pena to 25 years to life plus 10 years in prison.
All further statutory references are to the Penal Code, unless otherwise indicated. --------
After the jury's verdicts in this case, Pena moved for a new trial on the grounds there was insufficient evidence of the "primary activities" element required for VSI to be deemed "a criminal street gang" under section 186.22. By this time we had filed our decision in Pena I, supra, G049885, reversing the street terrorism conviction and gang enhancements due to insufficient evidence of the "primary activities" requirement. Juan had been charged with the same crimes as Pena, as well as one additional incident that took place on February 14, 2010, at the Lions Club. (Ibid.) Juan was acquitted of all charges except those relating to the Lions Club and the street terrorism count. The gang expert in that case was Detective Mike Brown, who presented testimony remarkably similar in nature to the testimony he presented in Pena's case. The trial court denied the new trial motion, stating, "The court feels, based on the facts of our case, there is sufficient evidence for the jury to have determined that VSI was a gang, and that its primary activities were as described." I. Gang Evidence
The gang-related convictions in Pena's case were entirely based on the testimony of lead investigator and gang expert. After detailing his background, training, and experience, Brown testified concerning the culture and habits of traditional turf oriented Hispanic street gangs. Brown explained how gang members commit violent acts to earn respect and the victims often are too intimidated to speak with the police. Brown testified he first learned of VSI in 2009 "when investigations started in the cases that we're here to talk about today." He explained that after doing some research, he learned the gang "had been documented" in 2008. Brown had seen pictures of VSI's tagging in the City of Anaheim. He explained tagging was a way for a gang to claim certain territory in a neighborhood.
Brown stated that from December 30, 2009 to February 6, 2010, VSI was "an ongoing organization" having somewhere between six to 12 members. VSI would identify itself by writing "V," "VSI," "SI," or "SXI" and the gang was called Varrio Surenos Insane or Varrio Surenos Insanity.
Brown testified VSI claimed the area of Ball and Euclid in Anaheim, the same territory as its rival gang SSBD. He explained there was a "turf war" and in 2008 a SSBD member killed a VSI member. There was VSI graffiti found in the area of Ball and Euclid and some of the VSI graffiti was crossed out with SSBD graffiti, which was a sign of disrespect to VSI.
Brown opined VSI was a criminal street gang, and its primary activities were attempted murder, aggravated assault, and felony weapon possession. Brown stated he was aware these were the crimes charged against Pena. His opinion regarding primary activities was "based solely upon the incidents" at issue in this case.
The police searched Pablo's residence and the Pena residence. In the houses, officers found ammunition, a notebook containing rap lyrics that mentioned VSI, and pages containing gang members' monikers. During Pena's police interview, he claimed to not be a gang member. Pena stated he stopped associating with gang members in 2009 when he was shot. He admitted helping the gang on February 8, 2010, when he chased SSBD members. He also conceded he owned the gun Juan used to shoot at Guardado.
Brown concluded Pena was a member of VSI at the time of the charged crimes based on statements made by Pena and others "involved in the case" and the evidence of the crimes charged. He determined Juan and Pablo were also active participants in VSI. In response to hypotheticals, Brown opined the crimes charged in the case were committed in association with and for the benefit of VSI.
On cross-examination, Brown stated he had been a gang investigator since October 2009, approximately four months before the underlying crimes were committed. Before that he worked as a school safety officer, and devoted 70 percent of his job duties to gang activities in the Anaheim Unified School District. Brown first met Pena when he attended Magnolia High School in 2008. At that time he was unaware of the VSI gang, and there was nothing indicating Pena was in a gang. Brown did not know if Pena had any tattoos. There had been no other arrests of other suspected VSI gang members. Brown did not know if VSI had hand signs. He believed the gang's color was blue based on a statement by Pablo, but the only clothing found with that color was an "Angels" hat with "SI" written on it. Brown stated police did not find any photographs with gang members wearing the gang's colors and flashing gang signs.
DISCUSSION
I. Sufficiency of the Evidence
Pena argues insufficient evidence supports the jury's finding on the criminal street gang enhancement and conviction for active participation in a criminal street gang. His contention is premised on the argument there was insufficient evidence VSI was a criminal street gang as defined by section 186.22. We agree.
The street terrorism substantive offense, section 186.22, subdivision (a), states as follows: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished . . . in the state prison for 16 months, or two or three years." (Italics added.) The street terrorism enhancement, section 186.22, subdivision (b)(1), provides the following: "[A]ny person who is convicted of a felony 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, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished . . ." by an additional term. (Italics added.) Thus, both subdivisions (a) and (b) of section 186.22 require the existence of a criminal street gang.
Section 186.22, subdivision (f), defines a "'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." (Italics added.)
"'Therefore, the "criminal street gang" component of a gang enhancement requires proof of three essential elements: (1) that there be an "ongoing" association involving three or more participants, having a "common name or common identifying sign or symbol"; (2) that the group has as one of its "primary activities" the commission of one or more specified crimes; and (3) the group's members either separately or as a group "have engaged in a pattern of criminal gang activity." [Citation.]' (People v. Vy (2004) 122 Cal.App.4th 1209, 1222 [(Vy)].)" (In re Alexander L. (2007) 149 Cal.App.4th 605, 610-611 (Alexander).)
In People v. Sengpadychith (2001) 26 Cal.4th 316, 323, the California Supreme Court held "primary activities" includes acts committed at the time of the charged offenses as well as prior conduct. The court explained the following: "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.] That definition would necessarily exclude the occasional commission of those crimes by the group's members." (Ibid.) The court stated, "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." (Id. at p. 324.) The court also stated expert testimony may establish the primary activities. (Ibid.) On this latter point, the Sengpadychith court relied on People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), in which the gang expert testified as to the gang's primary activities. The expert explained he based his opinion on conversations he had with defendant, who had been in the gang for nine years, and other gang members, hundreds of personal gang investigations, and information from his own police department and other law enforcement agencies. (Sengpadychith, supra, 26 Cal.4th at p. 324.) A few cases illustrate what has been, and has not been, held to establish a gang's primary activities after Sengpadychith.
In People v. Duran (2002) 97 Cal.App.4th 1448, 1465 (Duran), the gang expert testified, "based in part upon his personal experience in the field gathering gang intelligence, contacting gang members, and investigating gang-related crimes." The expert testified as to the gang's primary activities, as follows: "'The main one is putting fear into the community. [¶] Now, when I say that, what I mean is often these gang members are committing robberies, assault with deadly weapons, narcotics sales, and they're doing it as a group. [¶] And in doing so, they start claiming certain territories within the city . . . . [¶] And they're controlling either the narcotics sales in that area, they're committing the robberies in this area, all for the purpose of fear and intimidation of the community.'" (Ibid., italics omitted.) Citing to Sengpadychith, the court in the Duran case concluded the expert's testimony was sufficient, noting the expert opined the gang committed the specified crimes often and not occassionally, and evidence of gang members' commission of robbery and narcotics offenses corroborated the expert's testimony. (Ibid.)
In People v. Perez (2004) 118 Cal.App.4th 151, 160 (Perez), the gang expert attempted to establish the shooting of an Asian teenager was done in retaliation for conduct by other Asian gang members, and therefore was committed for the benefit of defendant's Hispanic gang. The expert testified the Hispanic gang had a long-standing rivalry with Asians and African-Americans, and six years earlier he had investigated the attempted murder of an Asian boy by that gang. (Id. at p. 157.) The expert also noted there had been shootings of Asian gang members and an Asian teenager a few days before the present crime, which were possibly committed by defendant's gang. (Id. at pp. 156-158.) Citing to Sengpadychith, the Perez court held that even if defendant's gang "was responsible for the shootings of Asians on February 16 and 18, as well as the shooting of [the attempted murder victim], such evidence of the retaliatory shootings of a few individuals over a period of less than a week, together with a beating six years earlier, was insufficient to establish that 'the group's members consistently and repeatedly have committed criminal activity listed in the gang statute.' [Citation.]" (Perez, supra, 118 Cal.App.4th at p. 160.)
In Vy, supra, 122 Cal.App.4th at page 1219, the gang expert testified that assaults, assaults with weapons, and attempted murders were among the primary activities of the gang, which had only six members. The expert relied on three offenses that occurred within three months of each other: a stabbing by a gang member, another stabbing that resulted in a conviction of assault with a deadly weapon, and the instant stabbing. (Id. at p. 1223.) After discussing Sengpadychith, and distinguishing Perez, the Vy court concluded, "[W]e find the existence of three violent felonies by a gang as small as [this one] over less than three months to be sufficient . . . ." (Vy, supra, 122 Cal.App.4th at p. 1225.)
In Alexander, supra, 149 Cal.App.4th at pages 611-612, another panel of this court addressed the same issue. The gang expert testified he knew of past crimes committed by members of the gang, but he did not provide any further information as to the specifics of the crimes and did not explain where, when, or how he learned of the information concerning these crimes. On cross-examination, he admitted the majority of cases connected with the gang-involved graffiti, which is not one of the enumerated crimes in section 186.22, subdivision (e). (Alexander, supra, 149 Cal.App.4th at p. 612 & fn. 2.) This court found the gang expert's testimony lacked foundation and was conclusory, and could not be considered substantial evidence of the gang's primary activities because it was not "'reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (Id. at p. 614.) The prosecution also offered evidence regarding two past criminal convictions of gang members from two years earlier. (Id. at pp. 612-613.) This court concluded evidence was insufficient to establish the primary activities, stating, "[w]ithout more, these two convictions do not provide substantial evidence that gang members had 'consistently and repeatedly . . . committed criminal activity listed in the gang statute.' [Citation.]" (Id. at p. 614.)
In the case before us, there was evidence the gang had been in existence for approximately seven years. Pena told the police VSI formed in 2005 or 2006. However, there was no evidence the gang (consisting of six to 12 members) committed any of the 25 predicate offenses in section 186.22 subdivision (e), in the years leading up to offenses in the underlying case. Likewise, there was no evidence the gang committed any offenses in the three years between the charged offense in this case and Brown's testimony in December 2013.
Brown testified VSI had symbols used in tagging, claimed territory, and were rivals with SSBD. Brown testified the primary activities of VSI were attempted murder, aggravated assault, and felony weapon possession. This opinion was based on his general knowledge of Hispanic gangs and the incidents charged in the case. Brown did not opine VSI committed these types of offenses often. As it turned out, the jury acquitted Pena of counts 1 through 7 and the other four offenses took place on February 8, 2010, and February 16, 2010. Pena argues the commission of a handful of "offenses in such a short timeframe evidence only occasional commission of those offenses." He asserts the evidence was insufficient to prove consistent and repeated criminal activity by VSI gang members or that these offenses were VSI's primary activities. We agree.
The issue in this case is whether evidence of four offenses, occurring on two different days within the span of one week was substantial evidence the VSI gang "consistently and repeatedly" committed those types of crimes. As explained above, the term "primary activities" implies the criminal activity must be the gang's chief occupation, which necessarily excludes the occasional commission of the criminal activity. Evidence VSI gang members committed two assaults with a deadly weapon and two attempted murders on two occasions over the course of nine days in February 2010 cannot reasonably support the conclusion they were VSI's primary activities. Like in Perez—where a gang committed several shootings within a period of less than a week and a beating six years earlier—and Alexander—where there were two convictions two years earlier—here there were four felonies on two occasions over the course of nine days. These facts are unlike Duran where the gang engaged in narcotics sales and committed robberies often enough to gain control of an area.
We recognize that in Vy the court found sufficient evidence of primary activities where the gang committed three violent felonies, fewer than were committed here. But that was over the course of three months. In the case before us now, the four crimes occurred on only two days in a little more than a week. We conclude VSI was formed over seven years ago and this handful of criminal offenses, which occurred in a brief period of time, were more akin to "occasional" criminal activity than it was to "consistent and repeated" criminal activity.
Relying primarily on the Gardeley case, the Attorney General asserts Brown's testimony, which was based in part on his conversations with Pablo, provided sufficient evidence of VSI's primary activities. We do not find the case analogous. In Gardeley, a police gang expert testified defendant had been a gang member for nine years, and the gang was primarily engaged in narcotics sales and witness intimidation, both statutorily enumerated felonies. (§ 186.22, subd. (e)(4) & (8).) The gang expert based his opinion on conversations he had with defendant and fellow gang members, and on "his personal investigations of hundreds of crimes committed by gang members," together with information from colleagues and other law enforcement agencies. (Gardeley, supra, 14 Cal.4th at p. 620.) The court noted the expert's testimony was admissible because it satisfied the "threshold requirement of reliability" and "provided much of the evidence necessary to establish that the . . . gang met . . . [the] definition of a 'criminal street gang.'" (Id. at pp. 618-621.)
In Gardeley, there was ample documentary evidence of crimes committed by members of the gang in addition to the expert's testimony. The evidence included official court records showing defendant was convicted for being an accessory to a felony and possessing cocaine. Two police officers observed defendant and others flagging down cars in a manner associated with the sale of narcotics. Another gang member was convicted for shooting at an inhabited dwelling and making threats against a drug dealer. (Gardeley, supra, 14 Cal.4th at p. 613.) This evidence, in addition to the expert's testimony, reasonably supported the jury's finding there was a "criminal street gang" as defined in the statutory scheme.
The Attorney General suggests Brown's opinion was likewise based on a broad range of sources. We conclude Brown's expert testimony concerning VSI was without sufficient foundational support and was conclusory. We recognize Brown provided comprehensive testimony about his background, training, and experience concerning Hispanic criminal street gangs. However, Brown testified he first learned of VSI when he began investigating the crimes alleged here. His information came from interviews in the case. Unlike the Gardeley case, there was no documented VSI-related offenses in the four years before, or three years after, the charged crimes. We find inadequate Brown's unsupported and conclusory opinion the four underlying offenses, committed on two days close in time, establishes VSI's primary activities.
There was insufficient evidence establishing VSI's primary activities and thus insufficient evidence VSI was a criminal street gang. We reverse Pena's conviction for street terrorism and the true finding on the gang enhancement. II. Ineffective Assistance of Counsel
Pena contends the prosecutor misstated the law concerning the requirement for proof beyond a reasonable doubt during closing argument. He acknowledges there was no objection, forfeiting the claim on appeal. Pena asserts the omission constituted ineffective assistance of counsel. We conclude the prosecutor did not misstate the law and therefore Pena did not receive ineffective assistance of counsel.
During the rebuttal portion of argument, the prosecutor stated the following: "Okay. There was a quote that, again, I want to make sure that we are clear with the law. A couple of times [defense counsel] said every reasonable doubt in this case has to be eliminated by the people. [¶] First, I don't have to eliminate possible doubt. Oh, if you have a reasonable doubt about something, it has to be based on the evidence presented in this case. Not hypothetical doubt about what if someone had said this. What if someone had said that. [¶] You can't prove things against all possible doubt because everything in life is subject to some doubt. And we can't be disproving hypotheticals that someone could think of. [¶] You have to base your decision on the evidence presented in court. Based on the evidence presented in court, do you have a reasonable doubt. [¶] And then the second thing is the burden of proof is to prove the elements, not everything that happened in the case. What's the full story. What happened before and after. Just the elements of the crime so they are proving beyond a reasonable doubt or not." (Emphasis added.)
Pena asserted the italicized sentences were a misstatement of the law that impermissibly lowered the burden of proof. He suggests the case is analagous to People v. Hill (1998) 17 Cal.4th 800, 831 (Hill), where the prosecutor told the jury about the concept of reasonable doubt. The prosecutor stated the following: "'[I]t must be reasonable. It's not all possible doubt. Actually, very simply, it means, you know, you have to have a reason for this doubt. There has to be some evidence on which to base a doubt.'" (Ibid.) Defense counsel objected on the grounds the statement was incorrect and the argument was "'putting the burden on me.'" (Ibid.) The trial court overruled the objection, stating, "'No, that's not. That's your interpretation of it.'" (Ibid.) The prosecutor continued by telling the jury, "'There must be some evidence from which there is a reason for a doubt. You can't say, well, one of the attorneys said so.' (Italics added in original, fn. omitted.)" (Ibid.)
Our Supreme Court held that although the prosecutor's statements were "somewhat ambiguous" she "committed misconduct insofar as her statements could reasonably be interpreted as suggesting to the jury she did not have the burden of proving every element of the crimes charged beyond a reasonable doubt. [Citations.]" (Hill, supra, 17 Cal.4th at p. 831.) It stated, "Further, to the extent [the prosecutor] was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution's evidence. [Citation.] On the other hand, [the prosecutor] may simply have been exhorting the jury to consider the evidence presented, and not attorney argument, before making up its mind." (Id. at pp. 831-832.) It concluded the case was a close call, but it was "reasonably likely [the prosecutor's] comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt. Accordingly, we conclude [she] committed misconduct by misstating the law." (Id. at p. 832.)
The prosecutor's comments in the case before us are distinguishable. First, the prosecutor addressed the concept of reasonable doubt in his rebuttal argument because the prosecutor perceived that defense counsel provided an incorrect definition. She disagreed with defense counsel's statement "every reasonable doubt" must be eliminated by the people. In clarifying the prosecution did not "have to eliminate possible doubt" she did not imply Pena had to prove reasonable doubt. Rather, the prosecution reminded the jury to look at "the evidence presented in this case" and not "hypothetical doubt" or speculation about evidence not presented at trial. The prosecutor also reiterated the people's burden of proof was limited to the elements of the crimes, "not everything that happened in the case."
The prosecutor's statement that the jury's verdict must be based "on the evidence presented in court" mirrors the jury instructions given in this case. CALCRIM No. 200 informed the jury as follows: "You must decide what the facts are. It is up to all of you, and you alone to decide what happened, based only on the evidence that has been presented to you in this trial." (Italics added.) Moreover, in her opening statement, the prosecutor began her argument by correctly stating the law: "What I have to prove. What I have the burden of proving beyond a reasonable doubt is not everything that happened. Not every fact or detail, but prove the elements of the crimes beyond a reasonable doubt." (See CALJIC No. 2.90; People v. Hearon (1999) 72 Cal.App.4th 1285, 1286.) When the entire argument is viewed in context, the statements are not ambiguous. The prosecutor correctly informed the jury to consider the evidence presented and not to speculate or base its decision on "attorney argument."
Based on our determination the prosecution did not commit misconduct, we conclude defense counsel's failure to object was reasonable and rational. There is no evidence Pena received ineffective assistance of counsel. (People v. Lucas (1995) 12 Cal.4th 415, 494 ["failure to object was not ineffective assistance of counsel, as no prejudicial prosecutorial misconduct occurred"].) III. Mistake on the Abstract of Judgment
Pena contends, and the Attorney General agrees, the abstract of judgment incorrectly reflected count 12 (active participation in a criminal street gang) is a "violent felony." In addition, the abstract of judgment mistakenly designated counts 9, 11, and 12 as concurrent sentences.
Our ruling reversing count 12 (active participation in criminal street gang) renders moot Pena's first argument but not the second argument. The convictions on counts 9 and 11 remain after our ruling and the record shows the court stayed those counts pursuant to section 654. Accordingly, following resentencing the abstract of judgment should reflect counts 9 and 11 were stayed, rather than having concurrent sentences.
DISPOSITION
We reverse Pena's street terrorism conviction (count 12) and the jury's finding on the gang enhancements. The matter is remanded with directions to the trial court to resentence Pena and verify the new abstract of judgment correctly shows counts 9 and 11 were stayed. The trial court is directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation Division of Adult Operations. In all other respects, the judgment is affirmed.
O'LEARY, P. J. WE CONCUR: FYBEL, J. THOMPSON, J.