Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 04CM4059. James LaPorte, Commissioner.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Louis M. Vasquez, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
INTRODUCTION
This case is before us on remand from the United States Supreme Court for further consideration in light of that court’s decision in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham). The parties have provided supplemental briefing addressing Cunningham and the California Supreme Court’s recent interpretation of Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II). After further consideration in light of both Cunningham and Black II, we affirm the judgment and sentence. Except for our discussion of defendant’s sentence, the opinion we now file is substantially the same as our original opinion filed on September 27, 2006.
A jury found defendant Isaac Castaneda guilty of one count of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a); count 1) and one count of recklessly evading a peace officer (Veh. Code, § 2800.2, subd. (a); count 2). The jury also found true criminal street gang and arming enhancements associated with each count. (Pen. Code, § 186.22, subd. (b)(1); § 12022, subd. (a)(1)). Defendant received a total prison term of 11 years: the upper term of three years for count 2, plus four years for the gang enhancement and one year for the arming enhancement, a consecutive term of eight months for count 1, plus one year for the gang enhancement, and four months for the arming enhancement, and a stipulated, consecutive term of one year for defendant’s guilty plea to assault with a deadly weapon in a separate case.
Further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends: (1) the court’s imposition of consecutive sentences on the unlawful taking/driving and reckless evasion counts violated section 654; (2) the evidence was insufficient to support the gang enhancements; (3) the evidence was insufficient to support the arming enhancements; (4) the court committed an impermissible dual use of facts when it used the circumstance of a principal being armed as a reason for imposing the upper term on the reckless evasion count; and (5) the court’s imposition of the upper term violated defendant’s constitutional rights under Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856]. We affirm.
FACTS
A resident of Selma awoke to discover her red, Chevrolet S10 pickup missing from the front yard where her son had parked it the night before. Two days later, a police officer spotted the pickup driving in Hanford around 10:20 p.m. After learning the pickup had been reported stolen, the officer tried to make a traffic stop but his overhead lights malfunctioned. Two additional officers, in separate marked patrol cars, arrived to assist him. The second officer replaced the first as the lead unit, and activated his overhead lights and siren. The pickup immediately accelerated, and a high-speed pursuit ensued, during which the pickup drove at speeds between 80 and 100 miles per hour and ran a red light and multiple stop signs. The posted speed limit in the residential area near the beginning of the pursuit was 25 miles per hour, and the posted speed limit for the remainder of the pursuit was 40 miles per hour.
After the pursuit began, the pickup turned the wrong way onto Tenth Avenue and sped northbound in the southbound lane, forcing a number of cars to take defensive action, such as pulling over to the side or stopping in the middle of the road, to avoid being hit. The pickup continued to speed northbound in the southbound lane even when the concrete divider separating the two lanes ended. Tenth Avenue came to a dead-end at Highway 43, where there was a stop sign. The pickup hit the brakes and attempted to make the tight left turn onto Highway 43. Instead, the pickup crashed through the wooden barrier erected to prevent drivers from driving on the old Highway 43. The pickup got back on Highway 43 and continued northbound for a couple seconds, before turning westbound into a dirt driveway or access road between two residences. The pickup finally stopped after colliding with a chainlink fence.
The driver’s side door of the pickup opened, and three people quickly exited and began to run in separate directions. Defendant was the first person to exit the pickup, and therefore identified as the driver by the police officers. Defendant ran approximately 100 yards before he was tackled by the officer who had been chasing him. While defendant was running, the other officers had a spotlight on defendant and were giving him multiple commands to stop and get down.
The second person who got out of the truck was later identified as Ignacio Sanchez. Sanchez was wearing a red sweatshirt. The officer chasing him observed that Sanchez was carrying a black object in his right hand, which the officer later learned was just a shoe. The officer fired two bursts with his submachine gun after Sanchez refused to comply with repeated orders to stop and show his hands. After the second burst, Sanchez got on the ground and put his hands up. John Aguilar, the last person out of the pickup, surrendered after being chased about 15 to 20 yards by the third officer.
Inside the pickup, the police found a red bandanna, wrapped loosely around and hanging down from the gear shaft. A loaded .380 shotgun was also found. It was visibly resting in the pocket of the passenger-side door, with the barrel pointing upward. In addition, a red-handled knife was found on the ground near the pickup.
The owner of the pickup testified that when the vehicle was returned to her, it showed no sign of forced entry or damage to the steering column or where the key goes into the ignition. She observed that the pickup had been “stripped” of a number of items, including the stereo and speakers and the side panels of the doors. There were also items that had not been in the pickup previously, including a Lemoore yearbook and some writing or “scribbling” in the back where the speakers used to be located.
The pickup owner’s son testified that he kept a key to the pickup attached to a magnet underneath the pickup and that a few people had seen him place the key there, including his cousin and some former coworkers. However, neither he nor his mother had given anyone permission to drive the pickup.
The parties stipulated at trial that the Brown Pride Nortenos (BPN) gang is a criminal street gang whose members have engaged in a pattern of criminal activity as defined by section 186.22. Defendant does not challenge the sufficiency of the evidence presented to establish that he and his companions, Aguilar and Sanchez, were BPN members. Among other things, defendant and his companions each had a personal gang moniker, indicating they were full-fledged gang members, as opposed to mere “wannabes” or associates of the gang.
Defendant also had gang tattoos prominently displayed on his body, including the word “Norte” just above his left eyebrow, and tattoos of dots on his face and hands representing the number 14, which is symbolic of the letter “N,” the fourteenth letter in the alphabet. Lemoore Police Corporal Steven Rossi, who testified as a gang expert in this case, further testified that defendant’s tattoos were significant as a form of “claiming.” “Claiming,” the expert explained, is “saying that I belong to a particular gang … and you need to fear me because I belong to that gang.”
Because defendant challenges the sufficiency of the evidence to establish his offenses were committed for the benefit of his gang, we cite extensively the expert’s testimony relevant to this issue. In describing how gang members commit crimes to gain recognition or “respect” for the gang and from fellow gang members, Corporal Rossi acknowledged that certain crimes garner more respect than others, explaining:
“The crimes that I would say give a gang member the most respect would be crimes of violence against, usually rival gang members, sometimes against police officers, but they can also – it doesn’t necessarily have to be a crime of violence, it could be a property crime. In this case, such as stealing a car and then not cooperating with the police or doing something during this act wild and crazy that would show, ‘I’m doing what I’m doing, I’m going to make the gang look good, I’m going to do whatever it takes to get away with this crime and not cooperate with the police, I don’t care what it takes.’ [¶] … [¶]
“It all comes back to the fear and intimidation. The more willing the individual is to do something that is outrageous, wild and crazy, the more the individual and the gang are viewed upon by the rivals, by the law enforcement and by the citizens as being dangerous, and they will fear them, which is in their minds what gets them respect and status.”
Concerning the significance of particular items found in this case, Corporal Rossi testified in relevant part:
“Q. Now, let me show you briefly Exhibits 10 and 11, which show the truck with the red bandanna hanging off the steering column; is that red bandanna hanging there significant to you?
“A. Yes.
“Q. And what is significant about that red bandanna hanging off the steering column to you?
“A. It would tell me that a Norteno had been in this truck. Listening to the prior testimony from the victim and her son, it did not belong to them. Listening to the testimony about the truck, my understanding was the steering column was not damaged in the truck, that’s one way that thieves try to hide the fact that a vehicle is stolen is by throwing some sort of rag or towel or clothing over the steering column so that law enforcement and other people cannot see any damage to the steering column so that we have less chance of knowing that it’s stolen. In this case my understanding is that there was no damage to the steering column, so the only conclusion I can come up with why this red bandanna would be here is to identify the suspects as being Norteno gang members. [¶] … [¶]
“Q. The fact that that red bandanna is hanging that way, is that a form of claiming?
“A. Yes. It appears it would also be readily available to, again, to fly their colors, whereas if they’re driving down the street they see a rival gang member, it’s there hanging loosely so that it can be grabbed and thrown out or hung out the window or shown to somebody, to a rival gang, again, as a way to again fly their colors.
“Q. Okay. Now, the fact that a red knife was found just outside the truck … is that significant to you?
“A. Yes.
“Q. What’s significant about that?
“A. The color of the knife, red, being a Norteno gang color.
“Q. You seen Nortenos carrying a red-handled knives in the past?
“A. Yes, too many times.
“Q. Another form of claiming?
“A. Yes.
“Q. How about the fact that a handgun was found in the pocket of the passenger door of the car; is that significant to you?
“A. Yes.
“Q. What’s significant about that?
“A. Just the fact that it’s a weapon. The whole gang lifestyle is criminal in nature, and in the area where this car was first spotted is an area of Hanford that is not typically a Norteno area of Hanford, it is typically a Sureno area of Hanford. So where they were first seen they were in a stolen car with a red bandanna around the column and weapons in the car, so it would be significant to me, and my assumption would be that they were there looking for trouble, looking for rival gang members.
“Q. And the fact that Mr. Sanchez, Ignacio Sanchez, was wearing a red T-shirt, is that significant to you?
“A. Yes.
“Q. How so?
“A. Again, red is a color that Nortenos identify with, so he is out blatantly showing his affiliation to the Norteno street gang.”
After being asked to assume a hypothetical based on the underlying events, Corporal Rossi opined the offenses benefited the BPN gang. With respect to the unlawful taking/driving offense, he testified:
“A. When a gang member is in a stolen car, it’s logical, obviously, to conclude that they can go – that again, their whole basis for being in a gang is criminal activity and obviously they want to do anything they can to attempt or to avoid being caught committing their criminal acts. So being in a stolen car makes it that much more difficult for law enforcement to catch the criminals that are involved in a particular crime. If they go out and commit a crime, even if a victim or a witness gets a license plate, they give it to the police. When we run a registration check we find out that it’s stolen. When it comes back stolen most people obviously don’t know who stole their car so that makes it very difficult for us down the road to find out who the suspects were in a particular case unless we actually catch them in the stolen car soon after the act.
“Q. How about in a scenario where they’re not out committing other crimes, just three of the gang members driving around in a stolen vehicle; does that gain them respect with their other gang members, their willingness to commit crimes and drive around in stolen cars?
“A. Yes.
“Q. And in their view does that increase the respect for the overall gang?
“A. Yes.”
As to the reckless evasion offense, Corporal Rossi testified:
“A. Again, it goes back to what I said earlier, they are expected as gang members and criminals to not cooperate with law enforcement, and that goes to show their love, their strength and their respect for their gang. If they were simply to pull over when a police officer turned on his lights when they’re in a stolen car – they know they’re in a stolen car. Again, if they were simply to pull over and be taken into custody they would be viewed as being weak by their gang members. Once an individual is viewed as being weak, it reflects on the whole gang, the entire gang itself. So the entire gang would start to be seen as weak by the rival gang members, by the other gang members in Brown Pride Nortenos.
“Q. Now, the fact that the more recklessly the vehicle was driven, is there a correlation between that and the amount of respect that those members are gaining?
“A. Yes.
“Q. How so?
“A. Again, it goes to being seen as strong and weak and your love and respect for your gang. The fact that this vehicle was driven so recklessly in fact on the wrong side of the road at oncoming traffic at speeds upwards of 80 miles an hour goes to show their willingness to do whatever it takes to act crazy for the gang. That gains them status and respect in their gang, that shows the other gang members and the community and law enforcement that they are willing to do whatever it takes to benefit their gang, to get away, they don’t care who they take the chance of injuring, themselves, passengers, citizens, law enforcement. And all that goes to show that they are criminals and they are going to do whatever it takes, and all that behavior gains them the intimidation and the fear from the community which gains them individual respect in the gang. It’s basically bragging rights is what it boils down to. They can go back, if they get apprehended they go to jail and they can tell everybody, ‘Hey, this is what I did. I didn’t just pull over, I ran. I almost ran five people off the road. The cops wouldn’t have caught me except I crashed.’ You know, it’s all bragging rights. And then that word gets out, it gets back to the gang members and then they gain status in their gang.”
DISCUSSION
I. Section 654
Defendant contends the sentencing court’s imposition of consecutive sentences on the unlawful taking/driving and reckless evasion counts violated section 654 because the offenses arose out of an indivisible course of conduct, and the multiple victim exception is inapplicable because his offenses were nonviolent. Because substantial evidence supports the court’s determination that defendant’s criminal conduct was a divisible transaction, we reject defendant’s section 654 challenge and need not address the multiple victim exception.
“‘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.’ [Citation.]” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) “‘The question of whether the acts of which [a] defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendant’s intent and objective in committing the acts. This determination will not be reversed on appeal unless unsupported by the evidence presented at trial.’ [Citation.]” (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657; see also People v. McCoy (1992) 9 Cal.App.4th 1578, 1585 [trial court’s § 654 finding, whether explicit or implicit, may not be reversed if there is substantial supporting evidence].) “We review the trial court’s findings ‘in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.]” (People v. Green (1996) 50 Cal.App.4th 1076, 1085.)
“‘The elements necessary to establish a violation of section 10851 of the Vehicle Code are the defendant’s driving or taking of a vehicle belonging to another person, without the owner’s consent, and with specific intent to permanently or temporarily deprive the owner of title or possession. [Citations.]’ [Citation.]” (People v. Green (1995) 34 Cal.App.4th 165, 180.) “Vehicle Code section 2800.2 prohibits fleeing or attempting to elude ‘a pursuing peace officer in violation of Section 2800.1’ where the pursued vehicle is driven recklessly. (Veh. Code, § 2800.2, subd. (a).) Section 2800.2 thus incorporates Vehicle Code section 2800.1, subdivision (a), which provides: ‘(a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor .…” (People v. Mathews (1998) 64 Cal.App.4th 485, 488.)
Here, the sentencing court explained it decided to impose consecutive terms for counts 1 and 2 because “[t]he offenses were committed at different times and different places and they were different victims and different specific incidents.” Substantial evidence supports the court’s factual determination. On the morning of October 18, 2004, the stolen pickup was discovered missing in Selma. On October 20, 2004, a police officer observed the stolen pickup driving in Hanford late at night. Even if, as defendant asserts, the evidence presented at trial did not show that he took the car, but was merely driving it, he was doing this before the officers attempted to stop him and, therefore, before he began to commit the offense of felony evading. Inferentially, defendant had been driving the stolen car well before the events that formed the basis of the felony evading violation. Moreover, the evidence supported a reasonable inference that at the time the first police officer observed defendant driving, defendant’s objective had changed from depriving the pickup owner possession of the pickup to leading an incursion into rival gang territory, and that he thereafter formed a new and separate intent to evade the pursuing officers. Therefore, there was evidence to support the court’s conclusion that the crimes of unlawful driving and reckless evasion were independent of each other. (People v. Green, supra, 50 Cal.App.4th at p. 1085.)
Because the circumstances in this case support a finding that defendant’s criminal conduct was a divisible transaction, we find this case distinguishable from People v. Bauer (1969) 1 Cal.3d 368, a case relied on by defendant, in which our Supreme Court held that, when a defendant unlawfully takes a car during the commission of a robbery for the purpose of facilitating escape, the two crimes constitute one indivisible course of conduct. (Id. at p. 372; People v. Irvin (1991) 230 Cal.App.3d 180, 184-185; People v. See (1980) 109 Cal.App.3d 76, 84-85.)
II. The gang enhancements
Defendant contends there was insufficient evidence to support the jury’s gang enhancement findings. Defendant does not challenge the evidence establishing that he and his passengers were members of the BPN, a criminal street gang, but claims the evidence failed to go beyond this to show his offenses were gang-related, as opposed to merely for personal gain. We disagree, and find ample evidentiary support for the gang enhancements.
A gang enhancement under section 186.22, subdivision (b)(1) requires proof that (1) the defendant committed a felony; (2) the felony was committed for the benefit of, at the direction of, or in association with any criminal street gang; and (3) the felony was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1); see In re Ramon T. (1997) 57 Cal.App.4th 201, 207 & fn. 3.)
The prosecution may rely on expert testimony to establish the required elements of the gang enhancement. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) Expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact .…” (Evid. Code, § 801, subd. (a); see People v. Gardeley (1996) 14 Cal.4th 605, 617.) The expert may testify regarding certain activities of the gang even though they may parallel the elements of the criminal street gang allegation. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) The expert also may testify concerning whether the defendant acted for the benefit of a gang, even though it is an ultimate factual issue for the jury to decide, because these are matters far beyond the common experience of the jury. (Id. at pp. 508-510.) An expert’s testimony is also admissible concerning the existence, size, or composition of a gang; an individual’s membership in, or association with, a gang; the primary activities of a specific gang; the motivation for a particular crime; whether a crime was committed to benefit or promote a gang, and how; rivalries between gangs; gang-related tattoos; and gang colors or attire. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657.)
Defendant cites no authority to support his suggestion that someone who qualifies as a gang expert, as Corporal Rossi undisputedly did, is required to contrast the habits of gang members with those of non-gang members to provide sufficient foundation for his or her opinion. Thus, we reject defendant’s assertions that the expert’s opinion regarding how defendant’s extreme display of hazardous behavior during the police pursuit benefited the gang lacked “critical foundation” because he “offered no expert testimony about how car thieves who are not gang members behave when pursued by the police.”
Here, contrary to defendant’s assertions, there was substantial evidence that defendant intended to commit the reckless evasion and unlawful driving to “promote, further, or assist in any criminal conduct” by the BPN gang. (§ 186.22, subd. (b)(1).) Substantial evidence also showed that the crimes defendant committed benefited his gang.
People v. Morales (2003) 112 Cal.App.4th 1176 (Morales) is instructive. In that case, the defendant and two fellow gang members, Flores and Moreno, robbed two victims while visiting a house where the victims were also visiting. (Id. at pp. 1179-1180.) Given a hypothetical detailing the underlying facts, the prosecution’s gang expert testified the crimes were committed for the benefit of, at the direction of, and/or in association with a criminal street gang. (Id. at p. 1197.) The gang provided a “‘ready-made manpower pool,’” and one member could count on the loyalty of the others to “‘watch his back.’” (Ibid.) Also, “the very presence of multiple gang members would be intimidating.” (Ibid.) The gang expert also explained that the crimes would benefit individual gang members by earning them notoriety in their gang and would benefit the gang “with notoriety among rival gang members and the general public.” (Ibid.)
The jury in Morales returned true findings on the street gang enhancements; on appeal, the defendant, like defendant here, argued that there was insufficient evidence he had the specific intent to promote or assist criminal conduct by gang members. (Morales, supra, 112 Cal.App.4th at p. 1198) The appellate court disagreed and concluded “that defendant’s intentional acts, when combined with his knowledge that those acts would assist crimes by fellow gang members, afforded sufficient evidence of the requisite specific intent.” (Id. at pp. 1198-1199.) The court explained: “[S]pecific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members .…’ Here, there was evidence that defendant intended to commit robberies, that he intended to commit them in association with Flores and Moreno, and that he knew that Flores and Moreno were members of his gang. Moreover, … there was sufficient evidence that defendant intended to aid and abet the robberies Flores and Moreno actually committed. It was fairly inferable that he intended to assist criminal conduct by his fellow gang members.” (Id. at p. 1198.)
Likewise, it is reasonably inferable that defendant intended to assist criminal conduct by his fellow gang members, Aguilar and Sanchez, by unlawfully driving the pickup and that his offense benefited the gang. While it is conceivable they were simply on a “joyride,” as defendant asserts, the evidence presented does not suggest this was the case. Rather, the evidence showed that the three BPN members were driving a stolen, red pickup in rival gang territory, late at night, while armed and with a red bandanna wrapped loosely around the gear shaft. Viewed in connection with Corporal Rossi’s expert testimony, the jury could reasonably infer they were looking for rival gang members to challenge, a scenario almost certain to result in criminal conduct given the presence of weapons. Corporal Rossi testified that gang members enhance the status of their gang by committing crimes of violence against rival gang members. He also explained that driving a stolen vehicle would benefit the gang by helping members avoid being identified personally and apprehended for their criminal acts.
Similarly, there was sufficient evidence from which the jury could reasonably conclude that the evasion crime benefited the gang. We disagree with defendant’s assertion that the gang expert’s testimony in this regard simply restated the elements of the offense reckless evasion. As our Supreme Court recently noted, “not all violations of [Vehicle Code] section 2800.2 pose a danger to human life.” (People v. Howard (2005) 34 Cal.4th 1129, 1139 [held violation of Veh. Code, § 2800.2 is not an inherently dangerous felony for purposes of second degree felony-murder rule].) Corporal Rossi’s opinion that the reckless evasion offense enhanced the status of the gang was based on evidence that defendant’s extreme reckless conduct did pose such a danger to the lives of everyone caught up in the pursuit, including defendant, his passengers, the police officers and other motorists. By driving at excessive rates of speed, in the direction of oncoming traffic, even when it was unnecessary to do, defendant demonstrated the type of “wild and crazy” behavior the expert testified that gang members often exhibit when committing offenses to demonstrate their strength to other gang members, the police, and the community at large.
We likewise reject defendant’s related section 654 argument, in which he asserts, “[f]or the enhancement to stand, it must be based on something other than the bare facts supporting the conviction on the evasion count.”
This and the other evidence discussed above also supported a reasonable inference that defendant had the requisite specific intent to assist the criminal conduct of his fellow gang members. We simply find no merit in defendant’s assertion that the evasion had “none of the typical gang indicia.” Neither the fact that defendant did not wave the red bandanna while evading the police, nor the fact only one of the three gang members was wearing red, precludes a finding that the offenses were gang-related, given all the other circumstances indicative of gang activity. On this record, the evidence was more than sufficient to support the jury’s findings on the gang enhancements and we reject defendant’s challenge to the sufficiency of the supporting evidence.
III. The arming enhancements
Defendant contends the evidence is insufficient to support the arming enhancements imposed under section 12022, subdivision (a), on account of a coprincipal’s being armed with a firearm. Defendant argues that even if one of his passengers was armed, there was no evidence they were principals in his crimes. We disagree, and conclude the evidence was sufficient to support a finding of aider and abettor status with respect to defendant’s passengers.
The prosecution pursued the enhancements on a theory of coprincipal liability and did not try to prove defendant was personally armed. Accordingly, we do not address defendant’s argument that there was insufficient evidence he was personally armed because there was no evidence he knew the gun was in the car. Vicarious liability under the statute did not require defendant’s knowledge of the gun’s presence. (See People v. Overten (1994) 28 Cal.App.4th 1497, 1501-1503.)
Section 12022 provides in pertinent part: “(a)(1) … any person who is armed with a firearm in the commission of a felony … shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm.”
“Subdivision (a) provides for both personal and vicarious liability. [Citation.] Thus, a person is ‘armed’ with a firearm when he or she carries such weapon or has it available for use in either offense or defense. [Citation.] A person is also ‘armed’ with a firearm under subdivision (a), even though he or she did not personally have possession of a weapon, if his or her coprincipal was armed during commission of the offense. [Citations.]” (People v. Smith (1992) 9 Cal.App.4th 196, 204.)
Section 31 defines principals to include “[a]ll persons concerned in the commission of a crime ... whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission ....” (§ 31; People v. Horton (1995) 11 Cal.4th 1068, 1113-1114; People v. Fauber (1992) 2 Cal.4th 792, 833-834.) “‘A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.’” (People v. Hill (1998) 17 Cal.4th 800, 851.)
Whether a defendant’s conduct constitutes aiding and abetting is determined by evaluating whether the person directly or indirectly aided the perpetrator by acts or encouraged him or her by words or gestures. (People v. Campbell (1994) 25 Cal.App.4th 402, 411.) Although presence at the scene of the crime is not alone enough to establish aider and abettor status, it is a factor that may be considered, along with companionship with the perpetrator and conduct before and after the crime. (Id. at p. 409.)
Defendant correctly notes that being a mere passenger in a stolen car, without more, does not constitute a violation of Vehicle Code section 10851. (People v. Clark (1967) 251 Cal.App.2d 868, 874 (Clark).) Thus, when a defendant is a passenger, liability under Vehicle Code section 10851 must rest on the theory that the passenger was “‘a party or accessory to or an accomplice in the driving.’” (Clark, supra, 251 Cal.App.2d.at p. 874.) “At a minimum, [the passenger] must have known that the vehicle had been unlawfully acquired and must have had that knowledge at a time when he could be said to have, in some way, aided or assisted in the driving. Knowledge of the unlawful taking, acquired after the ride started and when [the passenger] could neither stop the trip nor leave the vehicle is not enough.” (Ibid.)
In Clark, the defendant testified he did not know the car was stolen until after a police officer began chasing the car. During the ensuing high-speed chase, the defendant could not get out of the car and there was no evidence he helped the driver. (Clark, supra, 251 Cal.App.2d at pp. 873-874.) The court concluded that since the evidence was insufficient to show the defendant participated in the original taking or that he knowingly accepted a ride in the stolen car, and instead was consistent with being an innocent passenger in the car, his conviction for unlawful taking of a vehicle could not stand. (Id. at p. 874.) With respect to evidence he and the other passengers fled, the court noted:
“[W]hile his running away may have been caused by his knowledge of his individual guilt, still it is equally true that there is nothing to show that he was involved in either of these ways [participating in the original taking or knowingly accepting a ride in an illegally acquired car] or otherwise than as a innocent passenger or that his running away was not a result of something other than a consciousness of guilt.” (Clark, supra, 251 Cal.App.2d at p. 874.)
In contrast, there was plentiful evidence in this case that Aguilar and Sanchez were more than merely innocent passengers from which the jury could infer they knew the pickup was stolen, and that they aided and abetted its continued possession, thereby depriving the owner of its use. (People v. Land (1994) 30 Cal.App.4th 220, 288 (Land).) “Specific intent to deprive the owner of possession of his car may be inferred from all the facts and circumstances of the particular case.” (People v. Clifton (1985) 171 Cal.App.3d 195, 200.) Land, supra, 30 Cal.App.4th at page 227 which involved a passenger in a stolen vehicle, surveyed decisions from other jurisdictions and concluded a passenger in a stolen vehicle may be found to be in possession of the vehicle where there is “strong evidence of the passenger’s guilty knowledge and a close relationship to the driver or thief, or evidence of a defendant’s conduct indicating control.” In Land, the evidence indicated the driver and the passenger were friends, the driver told the passenger the vehicle was stolen and the driver and the passenger thereafter jointly used the vehicle to commit a robbery.
Similarly, in this case, there was evidence of a close relationship between defendant and his passengers, Aguilar and Sanchez. The evidence indicated that the three were full-fledged BPN members with monikers and gang tattoos. There was also strong evidence of guilty knowledge, not only in their flight after the collision, but also in the pickup owner’s testimony that, after she recovered the pickup, it appeared to have been stripped of its valuable components, it contained a Lemoore yearbook (the gang evidence showed that defendant and his companions were BPN members from Lemoore), and there was some writing on the interior of the car where the stereo had once been located. This evidence supports a reasonable inference that Aguilar and Sanchez both knew the pickup was stolen. Thus, unlike the defendant in Clark, supra, 251 Cal.App.2d at page 874, the evidence here was sufficient to support the conclusion that they did not unintentionally end up as an unknowing passengers in a stolen pickup at a time when they could neither stop the trip nor leave the vehicle. Rather, the evidence supports the reasonable inference they knew the pickup was unlawfully acquired, that they shared defendant’s intent to deprive the owner of possession of her vehicle, and encouraged defendant in his commission of the offense.
We also find sufficient evidence that defendant’s passengers aided and abetted the crime of reckless evasion. The jury could reasonably infer from the circumstances prior to the police chase, and the passengers’ conduct afterwards, that they were intent on escaping and thus encouraged defendant, as the driver, to drive in whatever manner was necessary to elude the police regardless of the danger. The gang expert evidence also provided evidence of an additional gang motive to encourage defendant to drive recklessly during the pursuit. The evidence that Aguilar and Sanchez were more than simply innocent passengers discussed above in connection with the unlawful driving offense further buttresses the reasonableness of an aider and abettor finding. Accordingly, we find sufficient evidence to support the jury’s true findings on the arming enhancements for both counts.
IV. Claim of improper dual use of facts
Defendant argues the sentencing court improperly applied the same facts under the arming enhancement and underlying offense in imposing the upper term on count 2. We agree the court erred but find the error was harmless.
In imposing the upper term for the reckless evasion offense, the sentencing court stated:
“[T]he circumstances of aggravation outweigh the circumstances of mitigation. [¶] The defendant’s crime involved threats of great bodily harm to all the southbound drivers. It was a divided road and he was on the wrong side of the road. [¶] A principal in the vehicle was also armed with a 380 caliber handgun. And his prior conviction as an adult or as a juvenile delinquent with reference to those sustained positions are increasingly serious. The Court finds there are no specific mitigating circumstances with reference to that enhancement.” (Emphasis added)
The fact a principal was armed with a firearm was a fact which underlay the arming enhancement alleged and found true by the jury and therefore could not be used to impose upper terms on the reckless evasion count. (See § 1170, subd. (b); Cal. Rules of Court, rule 4.420(d); People v. Forster (1994) 29 Cal.App.4th 1746, 1758 [a sentencing court may not rely on the same fact to impose a sentence enhancement and the upper term]; People v. Prothro (1989) 215 Cal.App.3d 166, 171, fn. 1 [court’s sentencing power is limited by the prohibition against the dual use of facts for aggravation and enhancement].)
However, the other, unchallenged aggravating factors identified by the court were sufficient in number to support imposition of the aggravated term. (See People v. Osband (1996) 13 Cal.4th 622, 728-729 [a single factor in aggravation will support an aggravated sentence People v. Avalos (1984) 37 Cal.3d 216, 233 [no remand for resentencing based on use of an invalid factor if sentencing court states strong belief that upper term is proper and other valid factors are identified]; People v. Williams (1996) 46 Cal.App.4th 1767, 1782-1783; [a single factor in aggravation will support an aggravated term].) We are unconvinced by defendant’s assertion that the court’s imposition of the upper term was based primarily on the presence of a firearm in the vehicle, and that, therefore, a different result would be likely on remand. Instead, the record suggests the court found the other aggravating factors to be of equal importance, particularly the risk of bodily harm presented by defendant’s conduct of driving on the wrong side of the road.
V. Imposition of the upper terms
Defendant contends the trial court erred by imposing the upper terms on count 2 and the associated gang enhancement based on facts neither admitted by defendant nor found to be true beyond a reasonable doubt, relying on Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856]. We conclude there was no error.
In Cunningham, the United States Supreme Court held that California’s Determinate Sentencing Law violates a defendant’s right to a jury trial to the extent it permits a trial court to impose an upper term sentence based on aggravating factors found by the court instead of a jury. (Cunningham, supra, 127 S.Ct. at pp. 860, 868-871.) The Cunningham court expressly disapproved of our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I). (Cunningham, supra, 127 S.Ct. at p. 871.) In light of Cunningham, the United States Supreme Court vacated the judgment in Black I and remanded the matter to the California Supreme Court. (See Black v. California (2007) 127 S.Ct. 1210.) Upon remand, our Supreme Court decided Black II, supra, 41 Cal.4th 799, in which it held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to a jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816, italics added.) In arriving at this conclusion, the court relied in part on the well established rule that “the right to a jury trial does not apply to the fact of a prior conviction,” citing United States Supreme Court decisions in Cunningham, supra, 127 S.Ct. at p. 868, Blakely v. Washington (2004) 542 U.S. 296, 301, Apprendi v. New Jersey (2000) 530 U.S. 466, 490, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 243. (Black II, supra, 41 Cal.4th at p. 818.) “‘[R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’” (Ibid.)
As seen above, the trial court cited the following aggravating factors in support of imposing the upper term sentence for count 2: (1) the crime involved threats of great bodily harm to the southbound drivers; (2) a principle in the vehicle was armed with a handgun; and (3) defendant’s prior convictions as an adult or prior sustained petitions in juvenile delinquency proceedings were numerous and of increasing seriousness. The court went on to state:
“Regarding the 186.22(b)(1) enhancement in Count II … the Court also is sentencing the defendant to the term of 4 years. Defendant’s a tattoo gang member. The crimes also involved potential great bodily injury to other drivers. [¶] He’s been a gang member for several years as a juvenile and refused to leave the gang lifestyle. The Court doesn’t find any specific mitigating factors.”
The trial court’s imposition of upper terms for the evading a peace officer conviction and the gang enhancement did not infringe upon defendant’s constitutional right to a jury trial under Cunningham. Where, as here, at least one legally sufficient aggravating circumstance is justified based upon a defendant’s history of recidivism, the trial court is authorized to impose the upper term. (Black II, supra, 41 Cal.4th at p. 816.) As defendant notes, prior to this case, his criminal record as an adult was not extensive; he suffered convictions for two misdemeanor thefts and a probation violation. However, the trial court’s reliance on these plus defendant’s numerous prior juvenile adjudications – including adjudications of misdemeanor unlawful entry, misdemeanor battery, misdemeanor being under the influence of a controlled substance, and first degree burglary, suffice to make him eligible for the upper term under Black II.
Defendant argues that his prior juvenile adjudications are not equivalent to prior “convictions” and thus cannot provide the basis for imposing an upper term sentence. He relies on United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1192-1195 (Tighe), in which a divided panel of the Ninth Circuit Court of Appeals held that the “‘prior conviction’” exception to the general rule requiring jury determination of aggravating sentencing factors does not extend to nonjury juvenile adjudications. The majority in Tighe reasoned that prior convictions constitute a constitutionally permissible sentencing factor only because they satisfy the “fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions: fair notice, reasonable doubt and the right to a jury trial.” (Id. at p. 1193.) According to the Tighe majority, juvenile adjudications that do not afford the right to a jury trial or require proof beyond a reasonable doubt do not fall within the prior conviction exception. (Id. at p. 1194.)
The Tighe court’s concern about juvenile adjudications requiring proof less than a reasonable doubt has no application to California juvenile adjudications. Under California law, a minor may be adjudged a ward of the court only upon proof beyond a reasonable doubt. (Welf. & Isnt. Code, §§ 602, 701.)
Assuming without deciding that defendant preserved this specific challenge to the court’s reliance on his prior juvenile adjudications despite failing to raise it in his prior appeal or petitions for review, as the People note, we would reject it in any event. We are not obliged to follow the reasoning of Tighe, which has been rejected by other federal appellate courts that have considered the matter. (People v. Williams (1997) 16 Cal.4th 153, 190 [decisions of lower federal courts interpreting federal law not binding on state courts].) After the Ninth Circuit filed its decision in Tighe, its reasoning was rejected in unanimous decisions of the Eighth Circuit in United States v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032, the Third Circuit in United States v. Jones (3d Cir. 2003) 332 F.3d 688, 696, and the Eleventh Circuit in United States v. Burge (11th Cir. 2005) 407 F.3d 1183, 1190. Likewise, with one exception, California appellate courts have declined to follow Tighe. (See People v. Tu (2007) 154 Cal.App.4th 735, 748-749, review granted December 12, 2007, S156995; People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Palmer (2006) 142 Cal.App.4th 724, 733; People v. Smith (2003) 110 Cal.App.4th 1072, 1075; People v. Lee (2003) 111 Cal.App.4th 1310, 1312-1316; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Bowden (2002) 102 Cal.App.4th 387, 390; but see People v. Nguyen (2007) 152 Cal.App.4th 1205, 1224-1226, review granted October 10, 2007, S154847.)
The reported California decisions that have addressed the issue arise primarily in the context of whether it is proper to treat a juvenile adjudication as a strike under the Three Strikes Law.
Although, as defendant notes, there is no right to jury trial in California juvenile wardship proceedings, in our view the numerous procedural safeguards present in such proceedings are adequate to establish that consideration of juvenile adjudications in the imposition of an upper term in adult criminal proceedings is consistent with due process requirements. We also reject defendant’s suggestion that the court did not rely on defendant’s prior convictions and juvenile adjudications in imposing the upper term sentence for the gang enhancement associated with count 2. Although the court did not specifically repeat that factor when it addressed the gang enhancement, we find nothing that suggests the trial court meant to restrict its consideration of this factor to its sentencing on the substantive offense. Rather, the court’s sentencing statements with respect to the gang enhancement also emphasized defendant’s history of recidivism by noting defendant’s refusal to leave the gang lifestyle. Accordingly, the trial court’s findings were sufficient to justify imposition of the upper terms.
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., GOMES, J.