Opinion
D057604
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. DEANTHONY GEORGE WILSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI024734)
APPEAL from a judgment of the Superior Court of San Bernardino County, Eric M. Nakata, Judge. Affirmed.
DeAnthony George Wilson was convicted of second degree murder (Pen. Code,§ 187, subd. (a)) and street terrorism (§ 186.22, subd. (a)) in connection with the 2006 shooting death of an Adelanto teen. The jury also found that, with respect to the murder count, Wilson committed the offense for the benefit of, at the direction of or in association with a criminal street gang with the specific intent to promote or further criminal conduct by gang members (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code.
Wilson now appeals, citing three theories for relief. He claims there was insufficient evidence to support the street terrorism conviction or gang enhancement. He also claims his trial was irreparably tainted by inadmissible testimony from a gang expert. Finally, he claims his sentence on the street terrorism conviction should have been stayed under section 654. We disagree with each claim and thus affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
On June 24, 2006, Adrian Washington threw a party to celebrate his 17th birthday at his aunt's home in Adelanto. Around midnight, Washington was standing in the front yard when two female attendees began to fight. Gunfire ensued, and Washington was fatally shot in the abdomen.
Wilson was quickly identified as the gunman. Several witnesses who knew Wilson from school testified they distinctly saw him firing shots into the crowd, while others recognized Wilson as the shooter by the ubiquitous gold hooded sweatshirt he wore to the party. One witness, Shoshaun Porter, testified she saw Wilson alone in the middle of the street, firing in a sweeping movement "from side to side" into the assembled crowd. Another witness, Joshua Willis, testified Wilson bragged earlier in the evening about carrying a gun.
Prior to the shooting, Wilson was seen holding up gang signs. Porter testified Wilson stood in the back yard at the party and held his hands in the shape of a "5" and a "C," which she recognized as indicating his membership in the Five Times Hometown Crip gang. Other witnesses corroborated Wilson's gang involvement.
LaDarion Williams testified he was present during a previous conversation in which Wilson relayed to a third party that he was "from Five Times . . . a gang in San Bernardino." [REDACTED] testified Wilson told her directly at a previous party he was affiliated with the "Fifth Street Crip" gang.
In addition to eyewitness testimony identifying Wilson as a Five Times Crip gang member, the jury heard testimony from gang expert Chris Gray. Wilson unsuccessfully moved in limine to exclude Gray's testimony on the grounds the prosecution had failed to proffer independent evidence of Wilson's gang membership upon which Gray could lay a foundation for his testimony. Wilson renewed his objection at trial, immediately before Gray testified. The trial court overruled his objection.
Gray testified to the contents of two photographs, included in evidence as exhibits, which showed Wilson displaying Five Times Crip gang signs and money while fraternizing with other Five Times members in the heart of the street gang's territory. Gray admitted he did not have a "gang card," or a document detailing gang affiliation, on Wilson, but testified the totality of the evidence pointed to Wilson's active involvement in the gang.
Gray further testified the shooting of Washington benefitted Five Times, as it would provoke fear and intimidation among residents and elevate Five Times's status within gang culture, thus allowing the gang to participate in lucrative criminal enterprises such as narcotics dealing and burglary with relative impunity. Gray stated Five Times routinely engaged in narcotics sales, identified several confirmed gang members who each had convictions for sale of cocaine and opined selling drugs was a "primary activity" of the gang, as were burglary, murder and robbery.
Gray identified Vel Smith, Isaac James and Rodney Mosby as Five Times gang members. In addition to Gray's testimony, documents were admitted establishing Smith had a 2004 conviction for robbery, a 2006 conviction for possession for sale of cocaine base and a 2008 conviction for assault with a firearm; James had 2004 convictions for possession for sale and transportation of cocaine base; and Mosby had a 2006 conviction for possession for sale of cocaine base.
Wilson was convicted of one count of second degree murder and one count of street terrorism. On the murder count, the jury found true allegations that Wilson had used a firearm to commit the act in violation of section 12022.53, subdivision (d) and that he had committed the shooting with intent to benefit a criminal street gang pursuant to section 186.22, subdivision (b)(1). On the street terrorism count, the jury found true the allegation that Wilson had used a firearm to commit the felony in violation of section 12022.5, subdivision (a).
Wilson moved for a new trial on the grounds there was insufficient evidence to support his convictions and the gang expert testimony unfairly prejudiced the verdict. The court denied the motion and sentenced Wilson to consecutive terms of 15 years to life in prison for murder, 25 years to life for using a firearm to commit murder, 3 years for street terrorism and 10 years for using a firearm to commit street terrorism, for a total custodial sentence of 53 years to life.
DISCUSSION
I
Wilson first claims there is insufficient evidence in the record to uphold his conviction for street terrorism. We review insufficient evidence claims by determining, after reviewing the record in its entirety and in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 316-320 ; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) To overturn a conviction on insufficient evidence grounds, it must clearly appear that on no hypothesis whatsoever is there sufficient substantial evidence to support the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 575-578.)
Viewed in the light most favorable to the prosecution, we conclude there is sufficient evidence in the record to support Wilson's conviction for street terrorism. The street terrorism statute requires three elements: (1) the defendant actively participates in a criminal street gang; (2) the defendant knows at the time of such participation that members of the gang have or are engaged in a pattern of criminal activity; and (3) the defendant willfully promotes, furthers or assists any felonious conduct by members of the gang. (§ 186.22, subd. (a); see also People v. Albillar (2010) 51 Cal.4th 47, 66-67 (Albillar).)
Here, all three elements were met by evidence presented at trial. Wilson's display of gang signs prior to the shooting and comments to other partygoers he was a member of Five Times support the reasonable inference he was an active member of the gang, as do the photographs of Wilson throwing gang signs and associating with other Five Times members. The picture of Wilson displaying money around other Five Times members coupled with the numerous arrests of gang associates close to Wilson for trafficking cocaine support the finding Wilson knew members of Five Times engaged in criminal activity. Finally, when Wilson shot Washington he willfully committed a felony offense that testimony indicated would "assist, promote or further" Five Times's felonious criminal conduct.
Wilson claims that no evidence was presented to support a finding "he aided or abetted in any previous gang crimes." However, this argument misconstrues the statute, which does not require defendants to aid in previous gang crimes, but simply "know of the gang's pattern of criminal gang activity" while actively participating in the group. (People v. Castenada (2000) 23 Cal.4th 743, 749 (Castenada); see also Albillar, supra, 51 Cal.4th at p. 58.)
Wilson also contends that no evidence was presented showing he aided or abetted other gang members in the Washington shooting, and thus the shooting cannot have furthered, promoted or assisted in felonious gang conduct. For this argument, Wilson relies on dictum in Castenada that "section 186.22(a) imposes criminal liability not for lawful association, but only when a defendant 'actively participates' in a criminal street gang while also aiding and abetting a felony offense committed by the gang's members." (Castenada, supra, 23 Cal.4th at pp. 750-751.)
A closer reading of Castaneda, however, belies Wilson's argument. As evidenced by its thorough discussion of status crimes and the due process afforded defendants in criminal organizations, Castenada's line about aiding and abetting was intended to set a liability distinction between active participation and mere passive membership in a criminal street gang. Castenada did not conceive of and was not meant to bar liability for an individual directly perpetrating a felony.
On the general question of whether a gang member who commits a gang-related act alone can be considered to have furthered, promoted, or assisted felonious conduct by members of that gang, we answer affirmatively so long as there is a sufficient nexus between the criminal conduct and the gang itself. Such a nexus is present in the immediate case, where Wilson flashed gang signs at the party before the fatal shooting and a gang expert testified the shooting of Washington benefitted Five Times by provoking fear and intimidation among residents and elevating Five Times's status within gang culture.
Moreover, we conclude there is no reason why the perpetrator of a violent felony should escape legislatively-mandated culpability for committing an act rather than merely assisting in it when the act carries with it a clear indication of gang purpose. In reaching this conclusion, we agree with the reasoning of the Fifth District in People v. Ngoun (2001) 88 Cal.App.4th 432, 436, which held that section 186.22, subdivision (a) "applies to the perpetrator of felonious gang-related criminal conduct as well as to the aider and abettor. . . . An active gang member who directly perpetrates a gang-related offense 'contributes' to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct."
In a similar vein, Wilson claims there was insufficient evidence to support the section 186.22, subdivision (b)(1) gang enhancement on his murder conviction. Under section 186.22, subdivision (b)(1), the crime must have been committed "for the benefit of, at the direction of, or in association with any criminal street gang" and "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22(b)(1).) Although he acknowledges Gray's testimony that violent assaults benefit gangs through fear and intimidation, Wilson maintains no other evidence exists to suggest the shooting was committed for the benefit of the gang.
We disagree. As a threshold matter, Wilson's argument has been rendered moot by our recent Supreme Court decision in Albillar, which stated: "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22, subdivision (b)(1)." (Albillar, supra, 51 Cal.4th at p. 63.) Thus, Gray's expert testimony alone is sufficient to support the finding that the shooting was gang related.
Furthermore, other evidence suggests the shooting was gang related. Witnesses testified Wilson flashed gang signs at the party, fired "from side to side" into a crowd rather than at a particular victim, and no other shooters were present. A reasonable factfinder could draw the inference from such testimony that Wilson committed the shooting to display the Five Times Crip's predilection for random killing rather than in response to a personal grudge or a deadly provocation. That the evidence presented could have also supported the inference that the shooting was in response to a fight breaking out is of little consequence, as "reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (Albillar, supra, 51 Cal.4th at p. 60, quoting People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Wilson also claims there is a lack of evidence in the record showing he committed the shooting with the specific intent to promote, further or assist criminal conduct by gang members. To support this argument, Wilson cites Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), a case that was expressly disavowed by our Supreme Court. (See Albillar, supra, 51 Cal.4th at p. 66 (rejecting the interpretation that section 186.22, subdivision (b)(1) requires criminal conduct other than the immediate offense); Emery v. Clark (9th Cir. 2011) 643 F.3d 1210, 1215-1216 (accepting Albillar's authority).) Even if Garcia was good law, however, it would undermine Wilson's case rather than support it.
While Garcia found insufficient evidence of the defendant's specific intent under 186.22, subdivision (b)(1), it did so because testimony in that case—including from a gang expert—was "singularly silent on what criminal activity of the gang was furthered or intended to be furthered by" the robbery of the victim. (Garcia, supra, 395 F.3d at p. 1103.) Garcia explicitly distinguished on its facts cases where a gang expert testifies to criminal purpose (see, e.g., People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley)), and noted that those cases "provide[] an example of the kind of evidence that can support a finding of the requisite specific intent." (Garcia, supra, 395 F.3d at 1104, citing Gardeley, supra, 14 Cal.4th at p. 619.)
Here, Gray testified regarding Wilson's purpose in the shooting, telling the jury the act of violence would establish the credibility and status of both Wilson and the gang and would make residents more reluctant to contact police or attempt to excise Five Times from the area. Gray's testimony, combined with Wilson's display of gang signs and the random nature of the shooting, support the finding the crime was committed with the specific intent to promote Five Times by a public display of gang violence.
Wilson also hints at, but does not explicitly raise, an argument based on Garcia's holding that specific intent must be shown to further, promote or assist gang-related crime other than the instant charged offense. (Garcia, supra, 395 F.3d at pp. 1103-1104.) Our Supreme Court rejected this exact argument in Albillar, a case decided after Wilson filed his appeal, when it found the statute " ' "requires a showing of specific intent to promote, further, or assist in 'any criminal conduct by gang members,' rather than other criminal conduct. . . ." ' [¶] . . . There is no statutory requirement that this "criminal conduct by gang members" be distinct from the charged offense . . . .' " (Albillar, supra, 51 Cal.4th at p. 66.) Thus, Wilson did not need specific intent to further, promote, or assist further crimes by Five Times; his specific intent to commit a gang-related homicide is sufficient to uphold the gang enhancement.
Finally, Wilson claims the jury's verdict with regards to both gang charges violated his state and federal due process rights, as they were based solely upon speculative expert testimony. However, as we discussed ante, sufficient other evidence was presented to support both allegations. We thus reject his due process claim.
II
Wilson next claims the trial court erred in allowing testimony from Gray, the gang expert. Wilson claims Gray's testimony was irrelevant to the matter for which Wilson was on trial and lacked a suitable foundation for reliability. We disagree.
We review admitted expert evidence under an abuse of discretion standard. (People v. Carter (2003) 30 Cal.4th 1166, 1194 (Carter).) A trial court's ruling of admission will be upheld except on "a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal. 4th 1, 9-10; People v. Jones (1998) 17 Cal.4th 279, 304.)
Here, the trial court had ample reason to allow expert gang testimony. Wilson was charged with a substantive gang offense and had clear ties to the Five Times Crip street gang. He identified himself as a gang member and flashed gang signs prior to the shooting.
Additionally, there was little chance admission of Gray's testimony would be unduly prejudicial or result in a manifest miscarriage of justice; multiple witnesses saw Wilson shoot Washington, and Gray's testimony was introduced solely to explain the context and benefit to Five Times. Although the introduction of gang evidence may be inflammatory, Gray's testimony did not make the inference that Wilson was guilty solely because of his affiliation with Five Times. It is well settled in our case law that admission of gang evidence is not unreasonable when offered for purposes other than character evidence. (See Carter, supra, 30 Cal.4th at p. 1194; People v. Avitia (2005) 127 Cal.App.4th 185, 192; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.)
Likewise, Gray's testimony possessed a suitable foundation. In contrast with the cases cited by Wilson, in which gang experts testified to their personal knowledge of defendants' gang membership but did not testify to the source of that knowledge, Gray had a solid background of facts upon which to rest his opinion. He testified to independently verifiable signs of Wilson's gang membership, including Wilson's display of gang signs, pictures of Wilson with other confirmed members of Five Times and Wilson's close family connections to proven Five Times members. Gray was also able to show extrinsic evidence of Five Times's primary activities, including convictions for sale of cocaine by several documented members, to support his opinion of how the shooting would benefit the gang. In light of such evidence, it was reasonable for the trial court to allow Gray to testify, and nothing in the record shows arbitrariness or caprice in that decision.
III
Wilson's final claim on appeal is that his street terrorism sentence should have been stayed under section 654. We disagree.
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
The test under section 654 was laid out by our Supreme Court in Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal), which distinguished between conduct "divisible" into multiple objectives and conduct "incident to one objective." Conduct with multiple objectives may be punished separately under each statute, while conduct incident to one objective falls under section 654's bar. (See ibid.)
Wilson argues he lacked independent multiple objectives under the Neal test, claiming the prosecution built its case solely on the theory the shooting was committed for gang purposes. In support of his reasoning, Wilson cites People v. Sanchez (2009) 179 Cal.App.4th 1297, 1315 (Sanchez), which concluded that when an underlying offense transforms mere gang membership into the crime of gang participation, "it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing [the underlying offense]."
We remain unpersuaded by Sanchez's reasoning. Violation of section 186.22, subdivision (a) does not depend solely on the underlying act committed to trigger it, but is a separate offense resting on both commission of the underlying act and active participation in a criminal street gang. (See People v. Herrera (1999) 70 Cal.App.4th 1456, 1467 (Herrera).) Thus, violations of the gang enhancement statute necessarily entail two separate objectives: the intent to commit the underlying crime and the intent to participate in the gang. (Ibid.)
The record supports the finding Wilson possessed both distinct objectives. Had he solely intended to participate actively in Five Times, he could have committed any number of lesser crimes and still have violated the statute. For instance, Wilson's mere possession of the presumably unlicensed firearm he used in the shooting would have been enough to trigger section 186.22, subdivision (a). The intent to commit the shooting was not a necessary condition on which Wilson's gang enhancement conviction was predicated.
Conversely, Wilson could have displayed a singular intent to kill or injure his victim by refraining from publicly identifying himself as a member of Five Times prior to shooting. The fact that he both chose to fire upon a crowd and claim gang membership at the same event strongly indicates that he possessed two simultaneous objectives: the intent to injure or kill and the intent to display the power of Five Times. The result is a separate but profound effect on two cohorts of people. Washington, who perished at his own birthday party, was a victim of Wilson's direct intent to kill, while Washington's family, friends and neighbors were victims of Wilson's message of fear.
In adopting this view, we find the reasoning in Herrera particularly salient. There, the Court of Appeal concluded that allowing section 654 to bar punishment in gang offenses would "render section 186.22, subdivision (a) a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang," effectively destroying the legislative intent of the statute. (Herrera, supra, 70 Cal.App.4th at p. 1468.) We conclude section 654 was intended to " ' "insure that a defendant's punishment will be commensurate with his culpability" ' " and not "exempt the most culpable parties from the punishment under the street terrorism statutes." (See ibid., quoting People v. Latimer (1993) 5 Cal.4th 1203, 1211, fn. omitted.)
In sum, we conclude section 654 was not violated by in punishing Wilson for both the murder of Washington and the street terrorism of the larger community.
DISPOSITION
The judgment of conviction is affirmed.
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BENKE, Acting P. J.
I CONCUR:
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O'ROURKE, J.
McDONALD, J., Concurring and Dissenting.
I concur in the conclusions, but not necessarily the analysis, of the majority opinion that the evidence is sufficient to sustain Wilson's conviction of violating Penal Code section 186.22, subdivision (a), the true finding on the section 186.22, subdivision (b), gang enhancement appended to the second degree murder charge, and the admissibility of the gang expert's testimony. I disagree with the conclusion of the majority opinion that execution of the sentence on the section 186.22, subdivision (a), conviction and appended enhancement should not be stayed under section 654.
Statutory references are to the Penal Code unless otherwise specified.
Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 has been applied not only where there was but one 'act' in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." [Citation.] [¶] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (People v. Rodriguez (2009) 47 Cal.4th 501, 507, italics added by Rodriguez.) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating[,] one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Harrison (1989) 48 Cal.3d 321, 335.) A deferential standard is applicable when reviewing a section 654 challenge on appeal, because " '[a] trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.' " (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.)
The People and the majority opinion, relying on People v. Herrera (1999) 70 Cal.App.4th 1456 (Herrera), argue section 654 does not bar multiple punishments in this case. Wilson, relying on People v. Sanchez (2009) 179 Cal.App.4th 1297 (Sanchez), argues section 654 does bar multiple punishments in this case. This question is currently pending before the California Supreme Court in People v. Mesa (2010) 186 Cal.App.4th 773, review granted October 27, 2010, S185688.
In Herrera, the court examined the application of section 654 to a defendant convicted of a count under section 186.22, subdivision (a), in addition to an underlying offense of attempted murder. There, two gangs had engaged in a series of retaliatory shootings, and the defendant (along with another member) drove by a house identified with the rival gang and fired shots at the house, striking two persons. (Herrera, supra, 70 Cal.App.4th at p. 1461.) As a result of this incident, the defendant was convicted of (among other things) one count of gang participation and two counts of attempted murder. (Id. at p. 1462.)
Herrera held that section 654 did not require the trial court to stay execution of the gang participation term, explaining that, " '[M]ultiple punishment . . . may be imposed where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives. [Citations.]' [Citation.] [¶] The characteristics of attempted murder and street terrorism are distinguishable . . . . In the attempted murders, Herrera's objective was simply a desire to kill. For these convictions, the identities (or gang affiliations) of his intended victims were irrelevant." (Herrera, supra, 70 Cal.App.4th at pp. 1466-1467.) After noting there was sufficient evidence to establish the specific intent to kill required for both counts of attempted murder, Herrera then stated that under section 186.22, subdivision (a), a defendant:
"must necessarily have the intent and objective to actively participate in a criminal street gang. However, he does not need to have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendant's objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense. For example, this subdivision would allow convictions against both the person who pulls the trigger in a drive-by murder and the gang member who later conceals the weapon, even though the latter member never had the specific intent to kill. Hence, section 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime may thus possess 'two independent, even if simultaneous, objectives[,]' thereby precluding application of section 654." (Herrera, at pp. 1467-1468, fn. omitted.)
Herrera also observed that, if section 654 was applied when the gang member was also convicted of the underlying offense, the gang participation statute would be rendered superfluous, and the Herrera court did not "believe the Legislature intended to exempt the most culpable parties from the punishment under the street terrorism statutes." (Herrera, supra, 70 Cal.App.4th at pp. 1467-1468, fn. omitted.) Herrera held that, because there was sufficient evidence the defendant intended to aid his gang in felonious conduct irrespective of his independent objective to murder (id. at p. 1468), section 654 did not prohibit multiple sentences. (Ibid.)
Although Herrera was later followed in several other cases, the court in People v. Vu (2006) 143 Cal.App.4th 1009 departed from Herrera. In Vu, the defendant and other members of his gang conspired to kill the victim, and defendant was convicted of (among other things) gang participation and conspiracy to commit murder. (Vu, at pp. 1012-1013.) The Vu court held that section 654 required the trial court to stay the gang participation term, stating, "Herrera is distinguishable because the defendant was charged with a course of criminal conduct involving two gang-related, drive-by shootings in which two people were injured. [Citation.] . . . [¶] Under [Neal v. State of California (1960) 55 Cal.2d 11], Vu committed different acts, violating more than one statute, but the acts of conspiracy and street terrorism constituted a criminal course of conduct with a single intent and objective. That single criminal intent or objective was to avenge [a fellow gang member's] killing by conspiring to commit murder. Although that intent or objective could be parsed further into intent to promote the gang and intent to kill, those intents were not independent. Each intent was dependent on, and incident to, the other." (Vu, at p. 1034.)
Both People v. Ferraez (2003) 112 Cal.App.4th 925 and In re Jose P. (2003) 106 Cal.App.4th 458 indicated that multiple punishment for gang participation and for the underlying offense is permissible, at least where the underlying offense required a different specific intent. (Ferraez, at p. 935 [possession of drugs with the intent to sell]; Jose P., at pp. 470-471 [robbery]; see also People v. Nunes (2011) 200 Cal.App.4th 587.)
In Sanchez, the court again departed from Herrera. The Sanchez court was unconvinced that Herrera's focus on the defendant's culpability, or Herrera's examination of the different specific intent requirements for the underlying offense and the gang participation offense, provide adequate reasons for declining to apply section 654 to the sentencing question. (Sanchez, supra, 179 Cal.App.4th at p. 1313.) Moreover, Sanchez explained "the fact that the defendant had multiple objectives did not necessarily mean that he had multiple independent objectives. Section 654 bars multiple punishment even if the defendant has ' "multiple criminal objectives," ' as long as those objectives were not 'independent' but 'merely incidental to each other. . . .' [Quoting People v. Harrison, supra, 48 Cal.3d at p. 335.] The focus is not on the statutory elements of the crimes; rather, it is on the particular defendant's actual intent and objective." (Id. at p. 1314.)
To the extent the Herrera court's concern arose from its belief that the Legislature did not intend "to exempt the most culpable parties from the punishment under the street terrorism statutes" (Herrera, supra, 70 Cal.App.4th at p. 1468), that concern has little application when (as here) the defendant's sentence for the underlying offense is enhanced by the term imposed for the section 186.22, subdivision (b)(1), enhancement, because the defendant under those circumstances has not been "exempt[ed] . . . from the punishment under the street terrorism statutes." (Herrera, at p. 1468.)
Sanchez reasoned that a section 654 issue arises only in the context of a defendant who was:
"found guilty of both gang participation and the underlying felony. And to be found guilty of gang participation, the defendant must either personally commit the underlying felony, or 'willfully promote[ ], further[ ], or assist[ ]' the underlying felony. (. . . § 186.22, subd. (a), italics added.) Thus, if the defendant is also found guilty of the underlying offense, the defendant's intent and objective in committing both offenses must be the same. [¶] . . . [¶] This is the point that we find dispositive. Here, the underlying robberies were the act that transformed mere gang membership— which, by itself, is not a crime—into the crime of gang participation. Accordingly, it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing the robberies. . . . [¶] In our view, the crucial point is that, here, as in Herrera and Vu, defendant stands convicted of both (1) a crime that requires, as one of its elements, the intentional commission of an underlying offense, and (2) the underlying offense itself. Thus, the most analogous line of cases involves convictions for both felony murder and the underlying felony. It has long been held that section 654 bars multiple punishment under these circumstances." (Sanchez, supra, 179 Cal.App.4th at pp. 1314-1315.)
Because Sanchez concluded the intentional commission of the underlying crime was essential to both the conviction of the underlying crime and as an element essential to satisfy the gang participation charge, it concluded section 654 precluded multiple punishments because "almost by definition, defendant had to have the same intent and objective in committing all of these crimes." (Sanchez, supra, 179 Cal.App.4th at p. 1316.)
I conclude Sanchez is the better reasoned approach for evaluating the application of section 654 to this case. Here the evidence did not suggest that Wilson committed the underlying felony of second degree murder and, on that same day, also promoted some separate underlying crime in violation of the gang participation statute. To the contrary, the complaint charged that he actively participated in a street gang and willfully promoted felonious criminal conduct by gang members; the jury was instructed that the felonious criminal conduct could include murder; and the prosecution argued that murder was a felonious act that would qualify Wilson for punishment under section 186.22, subdivision (a).
The reasoning in Sanchez is persuasive. Where the underlying felony is a necessary element of the section 186.22, subdivision (a), street terrorism charge, section 654 bars separate punishment. Here, the evidence demonstrated Wilson's murder offense was the underlying felony offense. Because the willful commission of the underlying conduct was an essential element to both the underlying offense and to the crime of street terrorism, Wilson may not be separately punished for both, and execution of the sentence for the street terrorism crime and the appended enhancement should be stayed under section 654.
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McDONALD, J.