Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA 058971, Thomson T. Ong, Judge. Affirmed as modified.
John Steinberg, under appointment by the Court of Appeal for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Susan Lee Frierson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ZELON, J.
Defendant Ramon D. Trotter appeals his conviction on all counts of a 10-count information arising out of two separate incidents (a freeway shooting and a beating in a parking lot) charging him with one count of murder (Penal Code, §§ 187, subd. (a), 190.2, subd. (a)(21)), three counts of attempted murder (§§ 187, subd. (a), 664), three counts of shooting at an occupied vehicle (§ 246), one count of robbery (§ 211), one count of assault with likelihood of producing great bodily injury (§ 245, subd. (a)(1)), and one count of battery with serious bodily injury (§ 243, subd. (d)). The jury found true special allegations of a special circumstance on count one (§ 190.2, subd. (a)(21)), a special allegation of a principal’s personal firearm discharge causing death or great bodily injury (§ 12022.53, subds. (d), (e)(1)), and special allegations of a principal’s personal firearm discharge on the shooting at an occupied vehicle counts (§ 12022.53, subds. (b), (c), (e)(1)). The jury also found true special allegations of personal infliction of great bodily injury on the robbery, assault and battery counts (§ 12022.7, subd. (a)) and found true the gang allegations on all counts (§ 186.22, subd. (b)(1)(a)). The trial court sentenced defendant to an aggregate term of 126 years.
All statutory references herein are to the Penal Code unless otherwise noted.
On appeal, defendant contends that (1) the prosecution’s failure to timely disclose exculpatory evidence and the trial court’s exclusion of such evidence at trial requires reversal; (2) the trial court erred in failing to sever counts one through seven (relating to the first incident) from counts eight through 10 (relating to the second incident); (3) there was insufficient evidence to sustain the great bodily injury enhancements on counts eight and nine; (4) the court erred in instructing pursuant to CALJIC No. 17.20, requiring reversal of the great bodily injury enhancements; (5) the imposition of a 25-year-to-life sentence for the vicarious personal use of a firearm, based upon the finding the crime was committed for the benefit of a criminal street gang, violated defendant’s equal protection and due process rights; (6) the imposition of consecutive sentences on the assault counts (counts eight and nine) violated section 654; (7) all 10 counts were one, indivisible course of conduct and therefore subject to only one criminal street gang enhancement per incident; (8) the drive-by special circumstance is unconstitutional; (9) the imposition of a $10,000 parole revocation fine was unauthorized and must be stricken, and (10) the imposition of consecutive sentences violated Blakely v. Washington (2004) 542 U.S. 296. The People request we correct the abstract of judgment to reflect the 657 days of presentence custody credits awarded, and impose an additional court security fee for each of the counts on which defendant was found guilty.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This action arises out of two incidents. Counts one through seven relate to an October 10, 2003 freeway shooting in which defendant and two other men shot at an occupied vehicle while driving on the 91 Freeway; counts eight through 10 relate to the October 11, 2003 beating of Manny (Alex) Tilo in a parking lot as a wedding party was leaving a reception held at a community center.
Defendant was charged with co-defendants Myron Davis and Timothy Stallworth on counts one through seven and with co-defendants Myron Davis, Timothy Stallworth and Brandon Sherouse on counts eight through 10.
1. The Westbound 91 Freeway Shooting.
On the night of October 10, 2003, Kenith Murphy was at the Skate Depot in Cerritos, which is near the 605 freeway. When the Skate Depot closed around midnight, a number of people were leaving at the same time. Murphy saw Latisha Stephens, whom he knew, in the parking lot greeting Curtis Galbert. Galbert was driving a white Avalanche.
Murphy noticed a white Tahoe with flashy rims on its wheels. As Murphy was leaving the parking lot, he saw the Tahoe drive back into the lot. Murphy saw Galbert’s Avalanche drive towards the freeway, and when he got to the freeway entrance, Stephens, who was driving a dark colored Ford Explorer with a female passenger, flagged him so he would let her cut in front of him so she could get onto the freeway. Murphy got onto the freeway, drove past Stephens, and headed to the 105 freeway; however, he did not get on the 105, instead getting onto the 91 freeway.
Murphy alternatively described the car as a “Tahoe” or a “Yukon.” For clarity herein, we designate the vehicle as a “Tahoe.” It appears the two models are virtually identical vehicles.
Murphy was going about 60 miles an hour, and saw the white Avalanche pass him on the passenger side. A few minutes later, Murphy’s rear windshield shattered. He saw a flashy white Tahoe, the same one he had seen at Skate Depot, approach him on the passenger side. The Tahoe slowed down and the windows on the driver’s side went about a quarter of the way down. Murphy could see a face down to the eyebrow area; the person had on a nylon skullcap. He saw two dark, medium sized guns come out of the driver’s side windows and they started firing into his car; Murphy could see muzzle flashes. Murphy did not know why the occupants of the Tahoe were shooting at him. He continued to drive, and the other car sped up. The Tahoe went up to the white Avalanche in front of him and fired into the driver’s side of that car. After being shot at, the Avalanche exited the freeway to the right, and Murphy followed it off the freeway to a parking lot. He saw Galbert, who asked him if he had been hit. Murphy took off his shirt and saw it had broken glass in it. At trial, Murphy identified a photograph of the white Tahoe.
Curtis Galbert had gone to the Skate Depot on October 10, 2003, at 11:30 p.m. to meet with Latisha Stephens. He waited outside in the parking lot for her, and while he was waiting, he saw a white 2001 to 2003 Tahoe with 20 to 24-inch custom chrome rims driving around the parking lot. The Tahoe was driving around and the occupants were speaking to numerous persons in the parking lot. At trial, Galbert testified he did not get a good look at the people inside, but shortly after the shooting described the driver to police as a male Black, mid-20s, with braided hair and a red T-shirt. There may have been two occupants in the rear seat. Galbert spoke to Stephens, who was with a girl that Galbert recognized. They wanted to go to In ’N Out Burgers, but Galbert did not want to go. Stephens left the parking lot driving a black Ford Explorer. Galbert noticed that a large number of cars were leaving the parking lot at the same time.
Galbert got on the 91 freeway going west, and saw Stephens’s car. He may have passed her car or caught up with her, but he was in the number three lane and his car was on the passenger side of her car. He rolled down the driver’s side window on his car and someone rolled down the passenger side window on Stephens’s car. He asked where she was going and she said “home.” The conversation ended and he rolled up his window.
Galbert passed Stephens’s car, and at trial testified he saw a white truck that could have been a Tahoe come up in the carpool lane. He had told detectives shortly after the shooting incident that he saw a vehicle approaching at a high rate of speed, and he believed it was the same Chevy Tahoe he had seen in the Skate Depot parking lot. The Tahoe pulled up parallel to Galbert’s car. By that time, it was shooting at him, so all he could do was duck and swerve to the side. He heard shots hitting his truck, and veered off to the 710 freeway going northbound. A blue Tahoe got behind him, and he got off at the first exit, as did the blue Tahoe. They pulled into a parking lot. Neither of them were injured in the shooting. Galbert could see bullet holes on the driver’s side of his car, and the back driver’s side window was broken. He flagged down a police officer, but he did not stop. He and the other driver left the parking lot.
Galbert went to the 77th Street Station, where he spoke to an officer Jason Jacobson of the Los Angeles Police Department in the station’s parking lot. When Galbert opened the door to his car, a bullet casing fell out. There were 13 bullet holes in Galbert’s vehicle. Galbert described the suspect vehicle as a 2001 to 2002 white Chevy Tahoe, and told Jacobson that he was on the 91 freeway in the number two lane adjacent to the carpool lane when the Tahoe came up in the carpool lane and matched his speed. Galbert stated he saw the white Tahoe shoot at a blue Tahoe in front of him and then shoot at him. Galbert crouched forward in his vehicle and then got off the freeway. Galbert described the driver as a male Black, mid-20s, with braided hair. He also gave Jacobson a description of the passenger in the rear passenger’s side as being a male Black with a bald or shaved head, mid-20s, with a red shirt. Galbert told Jacobson there was a total of four people in the Tahoe, and as to the other passengers, all he could say was that they were male Blacks.
Galbert gave Detective Christopher Cardoza of the Long Beach Police a description of the driver of the Tahoe as a male, light-skinned Black approximately 19 years old wearing a red shirt and braided hair. The right rear passenger was a light skinned Black approximately 19 years old with a red T-shirt and a bald head. A couple of days after the shooting, Galbert identified defendant from a photo array as the driver of the white SUV, both at the Skate Depot and on the freeway.
At trial, Galbert did not recall telling detectives on October 11 that when he looked at the Tahoe on the freeway, he saw the same driver and front passenger as he had seen at the Skate Depot. Galbert did not identify anyone in the courtroom as being in the Tahoe the night of the shooting. Previously he had identified defendant from a six-pack, but stated he was “pressured” to do so, and denied initialing six-packs regarding the passengers in the Tahoe. At trial, he claimed he could not see into the Tahoe; it had tinted windows.
Officer Kevin Ong of the Long Beach Police Department was on patrol on October 11, 2003, when he got a call to go to Atlantic Boulevard and the 91 Freeway. A vehicle parked near the freeway off ramp attracted his attention because there was a woman, Leonora Anaya, pacing back and forth next to the vehicle. She was crying and speaking on a cell phone. A female passenger in the vehicle, Latisha Stephens, was slumped over. Anaya told Ong that Stephens was driving westbound on the 91 freeway in the fast lane when Anaya heard a gunshot and the driver’s side window shattered. Stephens slumped over the wheel, but Anaya was able to get control of the car, and saw a light-colored SUV driving away in the carpool lane.
Also responding to the scene were Long Beach Police homicide Detectives Christopher Cardoza and Mark McGuire. The detectives put Anaya in their vehicle and drove in the opposite direction on the freeway to see if Anaya could tell them where the shooting had taken place. Anaya told him while she and Latisha were driving they heard a sound like a window breaking. Anaya saw Latisha slumped over and observed she was bleeding and had been shot. Anaya gained control of the vehicle by sitting on Stephens’s lap, and pulled off at the first exit. She immediately called 911 and flagged down a police officer. Anaya told them a light colored vehicle had passed them on the driver’s side in the carpool lane. Anaya had some glass particles on her face and clothing, and some blood on her pants. She was extremely upset.
Law enforcement recovered several nine millimeter bullet casings from the 91 freeway near the location of the shooting. Some of the bullet casings were consistent with being fired from a Glock pistol, and a bullet fragment taken from one of the victim’s vehicle was also consistent with being fired from a Glock pistol. The ballistics evidence was consistent with two guns being fired at the victims’ cars.
Latisha Stephens died from acute peritonitis due to a gunshot wound to the head. The entry wound of the bullet was on the left side of the head, and came to rest in the front of the brain on the right side. The gunshot wound caused significant injury to the brain, such that she was comatose and unable to breathe on her own. Doctors inserted a feeding tube on October 21, 2003, and as a result Stephens contracted acute peritonitis, from which she died on December 10, 2003. A bullet recovered from her head matched some of the bullet casings found on the freeway.
2. The Carson Community Center Parking Lot Beating Incident.
On October 11, 2003, Christopher Paiz got married at the Carson Community Center on Carson Street. About 50 or 60 people attended the wedding and reception, which ended about 11:00 p.m. at night. As Paiz left the reception, he saw a white SUV with 22 to 24-inch rims parked near the parking lot entrance with a group of people gathered around it. Several fights were taking place near the SUV. He saw someone he knew, Manny (Alex) Tilo, involved in a fight near the white SUV. Tilo had blood on his face and blood had gotten on the SUV. Four Black men jumped out of the SUV and the driver threw a white T-shirt at Tilo saying, “Clean the blood off my car.” Tilo was in a daze, and when he did not clean the blood off the car, the driver hit him in the face, causing Tilo to fall to the ground. The other passengers in the car started to stomp on Tilo. When they stopped, they began going through his pockets and then one of them screamed, “We’re going to get caught up that way,” and then they started yelling, “Piru,” “Blood,” and “Fuck you Mexicans.” They threw the items from Manny’s pockets on the ground and drove off.
Paiz’s brother Stephen, who was also at the reception, observed the fight and saw that Tilo had been thrown against the side of the SUV, a white Tahoe, and blood had gotten on the Tahoe. A young man who jumped out of the Tahoe was very upset with the blood on the Tahoe and threw a towel at Tilo and told him to clean up the blood. Tilo was too dazed to respond, and the driver started hitting him until he fell on the ground, and three other men jumped out of the Tahoe and began hitting him. After that, Paiz testified, “all hell broke loose,” with people running out of the community center; there was “screaming, gang signs, Bloods, a lot dressed in red.” They took everything out of the victim’s pockets. At some point the Tahoe drove off.
Los Angeles County Deputy Sheriff John Moore responded to the Carson Community Center Parking lot, which is across the street from the Sheriff’s substation. He encountered two females in the parking lot who were carrying an unconscious Hispanic male. The women told him that the man had been beaten up, and the perpetrators were in a white Chevy Tahoe that had just left the parking lot. Deputy Moore observed the Chevy traveling westbound on a nearby street. He followed it, ascertained its license number, and requested backup. Deputy Moore and two other Sheriff’s vehicles stopped the Tahoe. Defendant, who was the driver, and three other male Black occupants got out of the vehicle. Deputy Moore did not observe any blood on the Tahoe, although the police report states that there was “blood on driver’s door.” One of the women in the parking lot told Deputy Moore that she thought she could identify the driver of the Tahoe, and described him as Black, five feet seven to five feet eight in height, weighing 145 to 150 pounds, with cornrow hair. At trial, Deputy Moore identified defendant as the driver of the Tahoe.
After Sheriff’s deputies arrived, they had Christopher Paiz attend a field line-up of several individuals next to a vehicle. Paiz recognized the vehicle as the white SUV involved in the attack on Tilo because it had blood on it. All of the persons lined up were Black males. Paiz was too nervous to identify any of them out of his concern the men might be gang members because they were all wearing red. Several days later, he identified the driver of the SUV from photographs. He also identified a picture of a vehicle as having similar rims as the SUV he saw in the parking lot. At trial, Paiz identified defendant as the driver of the SUV.
Stephen Paiz also went to the line-up at a nearby location where Sheriff’s deputies had stopped a white Tahoe. Stephen Paiz recognized it as the same Tahoe he had seen in the community center parking lot because it had shiny wheels with big rims, and there was blood on the driver’s side that someone had tried to wipe off. Paiz did not identify any of the individuals who were at the scene as being from the Tahoe. However, at the time of his testimony at trial, when he saw defendant, Paiz was able to identify him as the driver. Paiz was concerned for his safety in testifying at trial.
An examination of the white Tahoe disclosed blood on the driver’s side exterior door, driver’s side window, passenger door, and right rear quarter panel. There was a bullet fragment inside the passenger side door and a fragment inside the rear driver’s side door of the shooting victim’s car. There was also gun shot residue on the rear passenger side door panel, and next to the rear passenger seat.
Deputy Moore visited the victim Manny Tilo in the hospital, who told him he was beaten up until he passed out.
3. Evidence of Defendant’s Gang Affiliation.
A search of defendant’s house in Carson yielded red baseball caps and red clothing, as well as a skull cap or “do-rag.” Detectives recovered some paperwork with gang writing in the same room where they found the clothes, and they found two “do-rags” in the Chevy Tahoe.
Defendant had admitted in March 2002 to law enforcement that he was a member of the Centerview Piru gang. At the time, defendant was wearing “standard gang attire,” which for the Centerview Pirus was red. Sergeant Fred Reynolds of the Los Angeles County Sheriff’s Department testified as a gang expert that the Centerview Piru gang is a Black gang located in Carson, and has about 48 members. Their color is red. The primary criminal activities of the gang are drive-by shootings, murder, robbery, burglary, narcotics sales, graffiti, and vandalism. The red baseball caps recovered from defendant’s home were significant because the red color is the gang’s color. In Sergeant Reynolds’s opinion, Trotter was an active member of the Centerview Piru gang.
Defendant did not put on any witnesses.
The trial court sentenced defendant on count one to life without the possibility of parole, with an additional term of 25 years to life on the firearm enhancement; on counts two, three and four, life imprisonment with a minimum seven-year parole eligibility, plus an additional 20 years on the firearm enhancement; on counts five, six, and seven, 15 years-to-life terms were stayed pursuant to section 654; on count eight, the three-year middle term, plus a ten-year term on the gang enhancement and a three-year term on the firearm enhancement, on count nine, one-third of the middle term of three years (one year) and an additional one-third of ten years (three years, four months) on the gang enhancement; and on count ten, the court stayed the sentence. The court ordered that defendant pay a restitution fine of $10,000 and a parole revocation fine of $10,000. The trial court gave defendant 657 days credit for pre-sentence custody.
DISCUSSION
I. NO ERROR CONCERNING DISCLOSURE OR EXCLUSION OF EXCULPATORY EVIDENCE.
Defendant contends the prosecution improperly withheld material exculpatory evidence consisting of the identity of an eyewitness to the freeway shooting and a police report reflecting that defendant was not driving the Tahoe at the time of his arrest. He contends the error was further compounded by the trial court’s refusal to permit defendant to introduce at trial the informant’s out-of-court statement to Detective McGuire, a statement that defendant argues was admissible under two hearsay exceptions: Evidence Code sections 1240 (excited utterance) and 1238 (prior identification). Defendant requests reversal of the judgment, or at a minimum, a remand for an evidentiary hearing on the Brady issue.
A. Factual Background.
1. The Citizen Informant’s Statement.
During trial, defendant sought to admit statements of an out-of-court informant made to Detective McGuire on October 12, 2003. The police report concerning the informant’s statement set forth that a person who sounded like an older male called to report he was traveling westbound on the 91 freeway in the early morning hours of October 11, 2003 when he saw a white vehicle, possibly a Ford Expedition with 18 to 20 inch wheels, a black Ford Explorer with big wheels, a two-tone full-size white Bronco with gold or brown on the bottom, and a gold or bronze Caprice with 20 inch chrome wheels following the Expedition and Explorer. The vehicles were traveling in excess of 100 miles per hour, and he was unable to see their license plates. The Expedition and Explorer were shooting at the Bronco, and the gold car was following behind. As the vehicles passed Atlantic Boulevard, the shooting had started. The informant pulled over and slowed down; the Expedition passed on his left in the fast lane and the Explorer passed on the right. The Bronco exited the freeway at what the informant believed was Santa Fe Avenue (near a Casino). The informant observed that the other two vehicles exited the freeway at Avalon, and got back onto the freeway headed towards Long Beach.
The informant spoke to Detective McGuire approximately 36 hours after the shooting.
At trial, the prosecution moved to exclude evidence of the informant’s phone call on hearsay grounds. The prosecution pointed out that the call was not a 911 call. Rather, the informant had gotten the phone number from a local newspaper article concerning the shooting and could have been influenced by what he read. The prosecution admitted that it had not confirmed whether the shootings described the same or different incidents. Defendant argued that the informant’s shooting was the same shooting because the sizes of the vehicles involved matched in both descriptions.
After listening to defendant’s argument that the hearsay exceptions for spontaneous statement and prior identification applied, and the prosecution’s argument that the evidence was extraneous and would confuse the jury and should be excluded under Evidence Code section 352, the court excluded the evidence. The court found that based upon informant’s description of the cars, the informant’s testimony concerned a different shooting, and was likely to confuse the jury, and excluded the testimony under Evidence Code section 352.
Contrary to defendant’s contention in his opening brief that the court found the evidence admissible under Evidence Code section 1238 (hearsay exception for prior identification), the court in fact stated that “. . . based on the description of the cars, although there is a prior identification, there is [a] hearsay exception 1238, under Evidence Code section 352 the court in its discretion excluded [this] evidence because [of] its prejudicial effect – because it will likely mislead the jury and confuse the jury because of the different type of cars that are described by the [informant].”
Defendant then argued that the materials had not been timely disclosed in violation of Brady and requested that the court order the evidence produced to defendant. The court concluded the evidence was not Brady material because “Brady material [would] suggest[] that it exonerates Mr. Trotter. In this particular case, the description of the car and the cars involved are totally different from the ones that are involved in this particular shooting.” Defendant asked for an Evidence Code section 402 hearing on the Brady issue and to have the informant testify to determine whether it was the same shooting. The trial court denied the request because it had read the police report concerning the informant’s statement.
Brady v. Maryland (1963) 373 U.S. 83, 87.
2. The Police Report Stating Brandon Sherouse Was Driving the Tahoe at the Time of Defendant’s Arrest.
Defendant moved for a new trial based upon evidence discovered post-verdict that tended to suggest that Brandon Sherouse, rather than defendant, was the driver of the white Tahoe when it was stopped after the Manny Tilo beating. Defendant submitted a Carson Sheriff’s Department incident history report he contended showed that Sherouse was the driver of the Tahoe. The prosecution argued in opposition that it was prepared to put on evidence that the “driver” notation next to Sherouse’s name did not mean he was at the wheel of the Tahoe at the time of the detention, but that “driver” was a reference to Sherouse as a licensed driver for purposes of running his DMV records. Furthermore, the prosecution argued the person inputting the information and obtaining the printout was not a witness to the detention and therefore had no knowledge concerning the identity of the driver of the Tahoe. The trial court denied the motion, finding no Brady violation because the informant’s statement concerned a different shooting, and therefore everything germane to the case had been turned over.
Defendant also moved for a new trial based on the non-disclosure of the citizen informant’s identity.
B. No Brady Violation.
Under Brady, the prosecution has a duty to disclose evidence to a criminal defendant when the evidence is both favorable to the defendant and material on either guilt or punishment. (In re Sassounian (1995) 9 Cal.4th 535, 543.) Analysis under Brady requires us to consider whether (1) the evidence is favorable to the defendant; (2) the prosecution suppressed the evidence; and (3) the evidence was material. (People v. Salazar (2005) 35 Cal.4th 1031, 1047-1049.) On the last point, the failure to disclose information in violation of Brady requires reversal if the information is material to the outcome of the trial. (United States v. Bagley (1985) 473 U.S. 667, 678.) The standard of reversal requires that the non-disclosure creates a reasonable probability that the result at trial would have been different. “The requisite ‘reasonable probability’ is a probability sufficient to ‘undermine[] confidence in the outcome’ on the part of the reviewing court.’” (In re Sassounian, supra, 9 Cal.4th at p. 544; People v. Salazar, supra, 35 Cal.4th at p. 1050.) Where the exculpatory evidence involves an eyewitness to the crime, “what must be disclosed is not just the witness’s identity ‘but all pertinent information which might assist the defense to locate [the witness].’ [Citation]” (People v. Robinson (1995) 31 Cal.App.4th 494, 499.)
Here, defendant contends that the prosecution’s evidence on the freeway shooting was “less than overwhelming” and points to the fact no firearms were found in the Tahoe or in the possession of the four defendants; the presence of gunshot residue in the Tahoe did not establish shots were fired from the Tahoe; and Murphy did not identify the occupants of the Tahoe. The People contend the evidence was neither favorable to defendant (exculpatory), nor was it material (likely to have changed the result). The People argue that even if the descriptions referred to the same incident, the evidence does not help defendant because in both versions of the incident -- the in-court and out-of-court accounts -- shots were fired from a white SUV with large rims.
We find that although the record does not conclusively establish whether the evidence was exculpatory, it is not reasonably probable the evidence would have changed the result at trial. The prosecution admitted it did not know whether there were two shootings that night in the same area. Without evidence as to whether there was in fact a second shooting, we cannot determine whether the informant’s statement was or was not exculpatory, although it may have been useful to defendant to impeach Murphy and Galbert’s descriptions of the incident. Nonetheless, even if the informant’s statement had been admitted, because in a significant respect it was consistent with Galbert and Murphy’s testimony that a white SUV did at least some of the shooting, it is not likely admission of the evidence would have changed the result at trial.
With respect to the computer print-out allegedly showing Sherouse as the driver of the Tahoe, the reference to the word “driver” does not necessarily mean that Sherouse was at the wheel of the Tahoe at the time of the detention. In any event, the trial testimony of several percipient witnesses established that defendant was the driver of the Tahoe. Therefore, production and introduction at trial of this computer printout evidence would not have likely changed the result.
2. The Trial Court Did Not Abuse Its Discretion in Finding The Evidence Was Likely to Confuse the Jury and Excluding It Under Evidence Code Section 352.
Because the trial court properly excluded the evidence on Evidence Code section 352 grounds, we need not consider the question of whether the evidence was admissible under defendant’s proffered hearsay exceptions.
The trial court properly excluded the evidence under Evidence Code section 352 because of its high probability of causing jury confusion. The trial court has broad discretion in determining the relevance of evidence. (See Evid. Code, § 351; People v. Crittenden (1994) 9 Cal.4th 83, 132.) Furthermore, under Evidence Code section 352, the trial court has discretion to exclude relevant evidence if its probative value is outweighed by the danger that its admission will, among other things, create a danger of confusing the issues or misleading the jury. (Evid. Code, § 352; People v. Crittenden, supra, 9 Cal.4th at pp. 133-134.) The trial court may exclude cumulative evidence if it would confuse the jury or obscure the issues. (People v. Filson (1994) 22 Cal.App.4th 1841, 1850, disapproved on other grounds, People v. Martinez (1995) 11 Cal.4th 434, 448.) However, “[e]vidence that is identical in subject matter to other evidence should not be excluded as ‘cumulative’ when it has greater evidentiary weight or probative value.” (People v. Mattson (1990) 51 Cal.3d 826, 871.) We do not disturb the trial court’s evidentiary rulings absent a showing there is a reasonable probability the result would have been different. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Evidence of a third party’s guilt is relevant, but “strict limits must be imposed on the scope of inquiry into collateral or insignificant matters that might suggest third-party culpability.” (People v. Hall (1986) 41 Cal.3d 826, 832.) Nonetheless, evidence of third-party culpability need not show substantial proof of a probability that the third party committed the act, but need only be capable of raising a reasonable doubt of defendant’s guilt. “At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. As this court observed in [People v.] Mendez [(1924) 193 Cal. 39], evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (People v. Hall, supra, 41 Cal.3d at p. 833.)
Here, defendant’s theory was that the informant’s description of the shooting was exculpatory because it implicated an unknown third party. Defendant relies on the fact that the two SUVs shot at victims whose vehicles had different descriptions than Galbert and Murphy’s vehicles. Whether or not the shooting was the same incident and therefore relevant under Hall, supra, 41 Cal.3d 826, the exclusion of the evidence did not prejudice defendant. The informant’s description of the incident differed significantly from the trial witnesses’s descriptions, suggesting that the informant’s account could have been a different shooting and therefore lacked relevance. Furthermore, given these differences, such testimony had the likelihood of confusing the jury because both incidents involved a white SUV shooting at other vehicles on the freeway.
II. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT’S MOTION TO SEVER TRIAL ON THE MURDER COUNTS FROM THE ASSAULT COUNTS.
Defendant argues the trial court erred in denying his motion to sever counts one through seven (the freeway shooting counts) from counts eight through 10 (the Manny Tilo beating incident) because the murder counts do not have attributes in common with the robbery counts. (§ 954.) He argues that even if the counts were properly joined under section 954, the trial court’s refusal to sever them for trial resulted in prejudice because evidence of the two incidents would not have been cross-admissible in separate trials, and a weak case (the shooting) was joined with a strong case (the parking lot beating).
A. Factual Background.
Prior to trial, defendant moved to sever the freeway shooting counts from the parking lot beating counts. Defendant argued that the two incidents were completely unrelated, occurred 24 hours apart and in different cities, had no common witnesses, and were investigated by two different law enforcement agencies. The only common allegation was that the two crimes were committed in furtherance of gang activity and for the benefit of the Centerview Piru gang; however, at the end of the preliminary hearing, the trial court dismissed the gang enhancements on counts one through seven. Defendant pointed out that at the preliminary hearing, Galbert never identified Trotter as the driver of the Tahoe, but that multiple identifications of defendant as the driver in the Community Center incident would have a spillover effect. Further, the racial epithets uttered during the Manny Tilo beating would inflame and prejudice the jury, and both cases were weak. The prosecution argued that joinder was proper under section 954 because the crimes, being assaultive crimes, were of the same class. The prosecution argued that no prejudice to defendant would result from joint trials because cross-admissibility of evidence was not strictly required for joinder, and extreme disparity was required between a weak case and a strong case for severance to be necessary. Further, none of the gang evidence was particularly inflammatory. The trial court denied the motion, finding that although both cases were weak, they were of the same class; in any event, the prosecution could prove in each case relevant facts under Evidence Code section 1101.
B. Defendant Has Not Demonstrated Joinder of the Murder Counts with the Assault Counts Prejudiced Him.
Penal Code section 954 permits the joinder of two or more offenses that are of the same class of crimes in an accusatory pleading and permits a joint trial of such joined counts. Crimes are of the “same class” if they possess some common characteristics or attributes. (People v. Grant (2003) 113 Cal.App.4th 579, 586.) Murder and robbery are crimes of the “same class” for purposes of section 954. (See, e.g., People v. Thomas (1990) 219 Cal.App.3d 134, 139-140 [murder, robbery, and ex-felon in possession of a firearm properly joined as crimes of the “assaultive” class].) Therefore, in this case, the murder counts were properly joined with the assault counts.
Section 954 provides in pertinent part: “An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interest of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.”
Where the statutory requirements of joinder are met, it is nonetheless within the trial court’s discretion to permit joint trials and the court may sever offenses “‘in the interests of justice and for good cause shown.’” (People v. Lucky (1988) 45 Cal.3d 259, 276.) However, where the statutory requirements of joinder are met, defendant must establish prejudice to demonstrate error. (People v. Maury (2003) 30 Cal.4th 342, 395.) Although the determination of prejudice is “necessarily dependent upon the particular circumstances of each individual case,” to determine prejudice, we evaluate whether (1) the evidence on the jointly tried crimes would be cross-admissible in separate trials; (2) certain of the charges are likely to inflame the jury; and (3) a weak case has been joined with a stronger case. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) Where the evidence would be admissible in separate trials pursuant to Evidence Code section 1101, subdivision (b), such cross-admissibility suffices to negate prejudice. (Id. at pp. 1315-1316.) We do not evaluate the trial court’s ruling with hindsight; whether joinder is proper is evaluated on the evidence before the court at the time of its ruling. (People v. Marshall (1997) 15 Cal.4th 1, 27.) However, even if the trial court’s ruling was proper at the time it was made, we must reverse if defendant shows that joinder “‘actually resulted in “gross unfairness” amounting to a denial of due process.’” (People v. Mendoza (2000) 24 Cal.4th 130, 160, 162.)
An additional factor, not applicable here, is whether any one of the charges carries a death penalty.
1. Both Incidents Contained Evidence That Was Cross-Admissible.
Evidence Code section 1101 permits the introduction of evidence a person committed a crime or other wrongful act when relevant to prove some fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident on the theory in such instance the evidence is not being used to establish the person’s disposition to commit a crime. (Evid. Code, § 1101, subd. (b).) The current offense and the prior offense must share common features sufficiently distinctive to support the inference the same person committed both acts. (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) This does not mean the crimes themselves must be distinctive; however, both offenses must contain some similar, particularized elements. The traits common to the charged and uncharged offenses, when considered singly or in combination, must logically set the offenses apart from other crimes of the same general variety. (People v. Felix (1993) 14 Cal.App.4th 997, 1005.)
Here, evidence would have been cross-admissible for the purpose of showing gang affiliation, conduct to further the gang’s stature, and a pattern of criminal gang activity. Evidence from the parking lot beating that defendant and his passengers, all dressed in red, entered a parking lot crowded with young people, shouted racial epithets after they beat Tilo, would be admissible to show the defendant and his passengers, after similarly driving around the Skate Depot parking lot filled with young people at closing time, again engaged in violent conduct directed at persons they had seen earlier in the evening.
2. The Freeway Shooting Counts Were Not More Inflammatory Than the Community Center Parking Lot Beating.
Prejudice from joinder can result where a more sensational crime, such as child molestation or a brutal murder, is joined with a lesser offense, such as theft. (People v. Balderas (1985) 41 Cal.3d 144, 173.) Such is not the case here. Both crimes involved equally inflammatory elements: the parking lot beating contained the shouting of racial slurs while the freeway shooting involved apparently unprovoked attacks on several vehicles by two shooters in the same SUV driving at high speed that the persons in the Skate Depot had previously seen that evening.
3. No Prejudice Resulted from Joining a Weak Case with a Stronger Case.
Defendant was arrested for the parking lot beating and identified as the driver of the Tahoe engaged in beating Tilo shortly after he drove out of the parking lot; hence, identity in that case was conclusively established. However, although identity evidence in the freeway shooting was less conclusive, one witness identified defendant as the driver in the freeway shooting and two witnesses identified defendant’s Tahoe as being both the freeway shooters’ vehicle and the same vehicle they had seen the in Skate Depot parking lot. Thus, it is not likely, given that the evidence was also cross-admissible, that defendant would have received a more favorable result at trial if the trial court had severed the counts.
III. SUBSTANTIAL EVIDENCE SUPPORTS THE GREAT BODILY INJURY FINDING ON THE MANNY TILO ASSAULT.
Defendant contends that the only evidence at trial establishing great bodily injury was that defendant and three other men attacked Tilo and that when the police arrived, Tilo was unconscious; the prosecution presented no medical testimony.
Section 12022.7, subdivision (a), provides that “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished. . . .” “As used in this section, ‘great bodily injury’ means a significant or substantial physical injury.” (§ 12022.7, subd. (f).) Subdivision (f) “contains no specific requirement that the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (People v. Escobar (1992) 3 Cal.4th 740, 750.) Great bodily injury is defined as that which is significant and substantial, but not insignificant, trivial, or moderate. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) Abrasions, lacerations and bruising can constitute great bodily injury within the meaning of section 12022.7. (People v. Escobar, supra, 3 Cal.4th at p. 752.) Furthermore, the use of hands or fists alone may support a conviction of assault by means of force likely to produce great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) Indeed, a single blow to the face may, under all of the circumstances, constitute assault by means of force likely to produce great bodily injury. (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162.) Whether the harm resulting to the victim constitutes great bodily injury is a question of fact for the jury, and we examine the trial court’s findings using the substantial evidence standard. (People v. Escobar, supra, 3 Cal.4th at p. 750.)
We reject defendant’s contentions. Here, the witnesses described defendant hitting Tilo and then being joined by the passengers in the Tahoe as they stomped on Tilo repeatedly until he was rendered unconscious. This describes a beating that was more than trivial, but that was significant and substantial.
IV. THE TRIAL COURT DID NOT ERR IN INSTRUCTING PURSUANT TO CALJIC NO. 17.20 ON COUNTS EIGHT AND NINE.
Defendant contends the trial court erred in instructing the jury with CALJIC No. 17.20 pertaining to group beatings because the instruction misstates the requirement that defendant must personally inflict great bodily injury. As defendant concedes, our Supreme Court has conclusively resolved the issue against defendant. In People v. Modiri (2006) 39 Cal.4th 481, the court held that CALJIC No. 17.20 satisfies the requirement concerning the defendant’s personal infliction of great bodily injury in a group beating. (Id. at pp. 496-497.)
V. THE ENHANCEMENTS FOR VICARIOUS USE BASED ON THE GANG ENHANCEMENTS DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS.
Defendant contends that his consecutive terms of 25 years to life for the vicarious use of a firearm in count one and the consecutive 20-year terms on counts two through four under section 12022.53, subdivision (e)(1) violated equal protection and due process because section 12022.53, subdivision (e)(1) singles out aiders and abettors for drastically increased punishment in cases in which a criminal street gang is pleaded and proved, and does not require that the aider and abettor knew of the unlawful purpose and intent of the perpetrator. We disagree.
Section 12022.53, subdivision (e)(1) provides that “[t]he enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of section 186.22 [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).” Under this section, the sentence enhancement may therefore be imposed on an aider and abettor if a criminal street gang allegation is pleaded and proved. (People v. Gonzales (2001) 87 Cal.App.4th 1, 11-12 (Gonzales).)
Under aider and abettor liability, the aider and abettor is a principal for purposes of guilt and punishment. (§ 31.) For criminal liability to be imposed under an aiding and abetting theory, the defendant must “act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.) “The mental state necessary for conviction as an aider and abettor . . . is different from the mental state necessary for conviction as the actual perpetrator.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1122.) An aider and abettor need only have “‘the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense. . . .’ [Citations.] Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense.” (Id. at p. 1123.)
In Gonzales, supra, 87 Cal.App.4th 1, the court rejected constitutional arguments identical to those defendant makes here. Gonzales rejected the defendants’ equal protection argument because they failed to establish they were similarly situated to other aiders and abettors because members of a criminal street gang who use firearms were not similarly situated to other firearm users. “Unlike other aiders and abettors who have encouraged the commission of a target offense resulting in a murder, defendants committed their crime with the purpose of promoting and furthering their street gang in its criminal conduct.” Furthermore, Gonzalez noted that the trial court could not impose the enhancement unless the jury had found the section 186.22, subdivision (b) enhancement to be true. (Id. at p. 13.)
In People v. Hernandez (2005) 134 Cal.App.4th 474 (Hernandez), the defendant’s equal protection argument was based not upon the distinction between ordinary aiders and abettors and criminal street gang aiders and abettors, but between criminal street gang aiders and abettors and those who commit crimes for the benefit of other types of gangs, such as drug cartels, white supremacist groups, and terrorist organizations. (Id. at p. 481.) However, even conceding that the two groups were similarly situated, Hernandez nonetheless found no equal protection violation because of the legitimate state interest in suppressing criminal street gangs and because the Legislature may direct its attention to those classes of cases where the need is deemed to be clearest. (Id. at p. 482.)
Gonzalez and Hernandez also rejected any due process violation based on the argument that section 12022.53, subdivision (e)(1) lacked any requirement the jury find the aider and abetter knew or intended that the crime be committed by the use or discharge of a firearm. Gonzalez found no due process violation because section 12022.53 subdivision (e)(1) contained a requirement that the gang members aid and abet for the purposes of furthering the objectives of the criminal street gang, and due process only required that “the aider and abettor intend to facilitate the target offense and that the offense ultimately committed is the natural and probable consequence of the target offense.” (Gonzalez, supra, 87 Cal.App.4th at p. 15; accord, Hernandez, supra, 134 Cal.App.4th at p. 483.)
VI. DEFENDANT’S CONSECUTIVE SENTENCES ON COUNTS EIGHT AND NINE DID NOT VIOLATE SECTION 654.
Defendant argues that the robbery and assault of Manny Tilo constituted a single indivisible transaction and therefore consecutive sentencing violated section 654. We disagree.
Penal Code section 654 provides that “[a]n 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 . . . .” In sum, section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Thus, if all of the crimes committed were merely incidental to or were the means of accomplishing or facilitating a single objective, the defendant may receive only one punishment. (Ibid.) However, if the defendant had several, independent criminal objectives, he or she could be punished for each crime that was committed in pursuit of separate objectives, even where the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) “The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]” (People v. Adams (1982) 137 Cal.App.3d 346, 355.) The question of whether the defendant harbored a “single intent” is a factual determination made by the trial court. (People v. Harrison, supra, 48 Cal.3d at p. 335.) On appeal we will sustain the court’s implied factual determination if supported by substantial evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730.)
Here, the facts support a conclusion defendant harbored multiple intents. Defendant started the melee with Tilo by throwing the rag and him and ordering him to clean the blood off the Tahoe. Defendant began beating Tilo, and the other passengers joined in. Once Tilo was on the ground and motionless, defendant began to go through his pockets. These facts support an inference that defendant had separate criminal objectives: defendant at first intended to beat the victim, but after he had subdued him, formed the new intent to rob him.
VII. NO ERROR UNDER SECTION 654 IN IMPOSITION OF CRIMINAL STREET GANG ENHANCEMENTS.
Defendant argues that because the robbery and assault were one individual course of conduct, section 654 precludes the imposition of two gang enhancements, one each on counts eight and nine. The People contend those enhancements were proper under section 654 because the underlying offenses, robbery and assault, constituted two distinct criminal objectives.
A. Factual Background.
At trial, with respect to the Manny Tilo beating, the jury found defendant guilty of robbery (count eight), assault by means likely to produce great bodily injury (count nine), and battery with serious bodily injury (count 10). On all counts, the jury found true allegations pursuant to section 186.22, subdivision (b)(1) that the offenses were committed 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 criminal conduct by gang members.
The trial court imposed sentences on counts one, two, three, four, eight and nine, staying imposition of sentence on counts five, six, seven and 10 pursuant to section 654. The trial court imposed gang enhancements on counts eight and nine, and enhanced defendant’s sentence pursuant to section 186.22, subdivision (b)(1) with an additional consecutive term of 10 years for count eight and an additional three years four months on count nine.
B. Imposition of the Two Gang Enhancements Did Not Violate Section 654.
Section 654, by its own terms, applies only to an “act or omission” made punishable in different ways by different statutes. (People v. Coronado (1995) 12 Cal.4th 145, 156 (Coronado).) Coronado recognized there are two types of sentence enhancements: those based on the nature of the offense, and those based on the nature of the offender. Enhancements that relate to the defendant’s conduct, such as gun use enhancements, focus on the circumstances of the crime. Status enhancements, such as prior prison term enhancements, focus on the defendant. (Coronado, supra, 12 Cal.4th at p. 156-157.) In any event, California appellate courts disagree on the scope of section 654’s application to enhancements. (Id. at p. 157.)
See, e.g., People v. Rodriguez (1988) 206 Cal.App.3d 517, 519 [single prior robbery conviction and resulting prison term could be used to both upgrade subsequent petit theft from misdemeanor to felony under section 666 and to enhance the sentence under section 667.5, subdivision (b) on grounds prior prison terms were not “acts or omissions” within meaning of section 654]; People v. Reeves (2001) 91 Cal.App.4th 14, 56 [multiple enhancements for the same criminal conduct counter to section 654’s rule against multiple punishment in a way that status-based enhancements are not].) The California Supreme Court has not globally resolved the issue. (People v. Oates (2004) 32 Cal.4th 1048, 1066, fn. 7.) However, recently, in People v . Palacios (2007) ___ Cal.4th ___, the court interpreted the language of section 12022.53 (enhancements shall apply “[n]otwithstanding any other provision of law”), concluded that the statute was not limited by the multiple punishment prohibition of section 654, and upheld three enhancements imposed based on a single shot fired at a single victim during the simultaneous commission of three qualifying offenses. (Id. at p. ___.) Palacios does not resolve the issue presented here because it relied on express statutory language to resolve the issue of section 654’s application; here, nothing in the language of section 186.22 provides any guidance.
In Coronado, the Supreme Court narrowly addressed the issue of whether section 654 barred the use of a status enhancement, namely, a prior prison term enhancement. (People v. Coronado, supra, 12 Cal.4th at p. 157.) “[P]rior prison term enhancements are attributable to the defendant’s status as a repeat offender [citation]; they are not attributable to the underlying criminal conduct which gave rise to the defendant’s prior and current convictions.” (Id. at p. 158.) Coronado therefore held that enhancements based upon a prior conviction did not implicate section 654’s prohibition against multiple punishments of an “act or omission.” (Id. at p. 158, 159.)
In People v. Akins (1997) 56 Cal.App.4th 331 (Akins), the court upheld the imposition of two criminal street gang enhancements under section 186.22, subdivision (b)(1). Akins reasoned that although the underlying robbery and assault offenses shared common acts and were part of the same course of conduct, they involved two different victims and section 654 did not preclude multiple punishments where different victims were involved. (Id. at p. 339-340.) “Since the underlying offenses, robbery and assault, were not subject to section 654 because they are evidence that defendant’s criminal intent was multiple, the two gang enhancements pursuant to section 186.22, subdivision (b)(1) are also not subject to section 654.” (Id. at p. 340.) Further, Akins pointed out that imposition of separate gang enhancements was consistent with the Legislature’s intent to punish and deter criminal gang activity. (Id. at p. 341.)
Here, unlike Akins, there is only one victim. But, as to that single victim, we have already upheld the trial court’s determination that defendant committed two separate crimes, each with its own intent. Because the street gang enhancement addresses defendant’s intent to commit each of those crimes, that enhancement may be imposed for each without violating section 654.
We note that in People v. Reeves, supra, 91 Cal.App.4th 14, the court permitted only one enhancement to be imposed despite the finding of two separate crimes against the same victim. Reeves, however, involved great bodily injury enhancements. Reeves found that although the defendant committed two separate crimes against the victim, only one great bodily injury enhancement could be imposed, and concluded, “[i]n the absence of any evidence making the assault of [the victim] divisible (see, e.g., People v. Dominick (1986) 182 Cal.App.3d 1174, 1210 [permitting two enhancements where defendant committed two separate assaults on a single victim]), the trial court should not have imposed two great bodily injury enhancements under section 12022.7.” (Reeves, supra, at p. 56-57.) Here, not only did defendant harbor divisible intents, but gang enhancements differ in both their nature and purpose from great bodily injury enhancements. The commission of multiple, as opposed to single, crimes furthers the purposes of the gang in terrorizing the community in which it operates, and therefore imposition of additional enhancements operates to punish and deter those criminal objectives. (See Akins, supra, 56 Cal.App.4th at p. 341.)
VIII. THE DRIVE BY SPECIAL CIRCUMSTANCE OF SECTION 190.2, SUBDIVISION (A)(21) IS NOT FACIALLY INVALID.
Defendant argues the special circumstance of section 190.2, subdivision (a)(21) is overinclusive and violates due process under both the Eighth and Fourteenth Amendments. He contends it violates the Fourteenth Amendment because it reaches conduct that does not rationally relate to the purpose of the statutory provision, and conditions a more severe punishment on the fortuitous circumstances of being in a car (“criminalizing the fact of being in a car at the time of shooting which might otherwise be punished as second degree murder is irrational”). He also contends it violates the Eighth Amendment because it makes spontaneous conduct death-penalty eligible, and penalizes a factual characteristic of an offense, namely being in a vehicle, which is not necessarily related to culpability.
Section 190.2, subdivision (a)(21) provides in relevant part that the following conduct subjects defendant to a sentence of death or life without parole: “The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death.”
In People v. Rodriguez (1998) 66 Cal.App.4th 157 (Rodriguez), the court addressed this precise issue. The Rodriguez court rejected overbreadth, facial invalidity, and as-applied challenges, in each instance upholding the constitutionality of the statute. (Id. at pp. 171-181.) We believe that Rodriguez was correctly decided and decline to revisit the issue.
IX. THE TRIAL COURT ERRED IMPOSING A $10,000 PAROLE REVOCATION FINE.
Defendant argues that because he was sentenced to an indeterminate term of life imprisonment, without possibility of parole, the trial court’s imposition of a $10,000 parole revocation fine pursuant to section 1202.45 was in error. We agree.
A sentence is unauthorized where it may not be lawfully imposed in any instance. (People v. Price (2004) 120 Cal.App.4th 224, 242.) Section 1202.45 provides in relevant part that “[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person’s parole is revoked . . . .” As the statute applies only to those situations where parole is a legal possibility, its imposition in this case was error. (People v. Petznick (2003) 114 Cal.App.4th 663, 687.)
X. NO ERROR IN IMPOSITION OF CONSECUTIVE SENTENCES.
Defendant argues that the consecutive sentences imposed on the murder and attempted murder counts violated his federal constitutional rights on sentencing because the facts forming the basis for the choice between concurrent and consecutive sentencing were neither admitted by defendant nor found to be proved beyond a reasonable doubt by a jury. (See Blakely v. Washington, supra, 542 U.S. 296, 124 S.Ct. 2531 (Blakely); Cunningham v. California (2007) ___ U.S. ___; 127 S.Ct. 856 (Cunningham).) The People contend that consecutive sentencing does not implicate Blakely or Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) because those cases involve the statutory maximum penalties for individual counts, rather than the cumulation of penalties for multiple counts, nor did Cunningham change this result, because Cunningham did not address the issue of whether a jury trial is required on findings used to impose consecutive sentences. Defendant asserts that although Cunningham did not address consecutive sentences, a jury trial and proof beyond a reasonable doubt is also required before the trial court can impose consecutive sentences.
The People also contend defendant waived error because he raised no objection in the trial court on this issue. We disagree. Even if the forfeiture doctrine could be applied in this constitutional context (People v. Vera (1997) 15 Cal.4th 269, 276-277), there is a general exception to the forfeiture rule for instances when an objection would have been futile. (People v. Boyette (2002) 29 Cal.4th 381, 432.) By the time of defendant’s sentencing, October 2005, the California Supreme Court had decided People v. Black (2005) 35 Cal.4th 1238, vacated, Black v. California (2007) ____ U.S. ____, 127 S.Ct. 1210; therefore, it would have been futile for defendant to object to his consecutive sentences on the grounds asserted here. See People v. Sandoval (20907) ____ Cal.4th ____ (S148917, July 19, 2007) (Slip Op. at p. 9, fn. 4).)
Although defendant’s opening brief was submitted before the Supreme Court’s decision in Cunningham, his reply brief addresses the impact of Cunningham.
The California Supreme Court revisited this issue in Black after its initial opinion was vacated. (People v. Black (2007) ____ Cal.4th ____ (S126182, July 19, 2007).) The Court reaffirmed its prior ruling, not addressed in Cunningham, that the “imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights.” (Slip Op. at p. 25.) Because there is no presumption that concurrent sentences will be granted, the sentencing court need not make factual findings, but need only set forth its reasons. Accordingly, such a decision does not implicate the right to jury trial as to factors considered by the court. (Id. at pp. 26-27.)
XI. IMPOSITION OF ADDITIONAL COURT SECURITY FEES AND CORRECTION OF ABSTRACT OF JUDGMENT TO REFLECT PRE-SENTENCE CUSTODY CREDITS.
The People contend, and defendant does not contest, that court security fees in the amount of $20 per count should be imposed in addition to the $20 fee already imposed pursuant to section 1465.8, subdivision (a)(1). That section provides, “[t]o ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense. . . .” Therefore, “section 1465.8 unambiguously requires a fee to be imposed for each of defendant’s convictions. Under this statute, a court security fee attaches to ‘every conviction for a criminal offense.’” (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.)
The People further point out that the abstract of judgment does not reflect the 657 days of presentence credit the trial court awarded defendant. We therefore direct the trial court to correct the abstract to reflect the trial court’s order in this regard.
DISPOSITION
The judgment of the superior court is modified to strike defendant’s parole revocation fine under section 1202.45, to impose an aggregate court security fee of $200 for all 10 counts, with collection stayed on three of the counts, and to correct the abstract of judgment to reflect credit for 657 presentence days served. As modified, the judgment is affirmed.
We concur: PERLUSS, P. J. WOODS, J.