Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., Los Angeles County Super. Ct. No. GA051505, Michelle R. Rosenblatt, Judge.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
Norman Louis Condiff appeals from the judgment entered following a jury trial that resulted in his conviction of first degree murder (Pen. Code § 187, subd. (a); count one) willful, deliberate and premeditated attempted murder (§§ 187, subd. (a)/664; count 2); conspiracy to commit murder (§ 182, subd. (a)(1); count 3); dissuading witness by force or threat (§ 136.1, subd. (c)(1); count 4); and conspiracy to dissuade witness by force or threat (§ 136.1, subd. (c)(2); count 5); jury special circumstance findings as to count 1 that the murder was committed while lying in wait (§ 190.2, subd. (a)(15)) and in furtherance of criminal street gang activities (§ 190.2, subd. (a)(22)); jury findings that as to all counts the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that during their commission Condiff personally and intentionally discharged a firearm (§ 12022.53, subds. (d)&(e)(1)); and court findings that Condiff had suffered two strikes under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
All further section references are to the Penal Code.
Condiff was sentenced to prison on count 1 to life without the possibility of parole (LWOP), which was tripled under the Three Strikes law, plus 25 years for the firearm enhancement and on count 2 25 years to life (third striker), plus 25 years to life for the firearm enhancement. As for counts 3 through 5, the trial court imposed the same sentence as count 2 but ordered the sentence on count 4 to run concurrent with count 1 and stayed the sentences on counts 3 and 5 (§ 654).
He was ordered to pay direct restitution for the count 1 murder victim in the amount of $ 6,120.69 (§ 1202.4, subd. (f)). He was further ordered to pay a $5,000 restitution fine (§ 1202.4, subd. (b)) and a parole revocation fine in the same amount (§ 1202.45).
Condiff concedes his count 1 first degree murder conviction could be sustained based on the evidence of premeditation and deliberation presented. His position on appeal is there is insufficient evidence to support the lying in wait and gang special circumstance findings. He also contends the trial court committed reversible error by failing sua sponte to instruct on implied malice second degree murder, a lesser included offense. He contends his revised triple LWOP sentence on count 1 must be vacated and the original single LWOP sentence imposed for the reasons that the revised sentence is greater than the initial sentence in violation of section 1170, subdivision (d) and the Three Strikes law is inapplicable to a LWOP penalty. He further contends the trial court erred in imposing a parole revocation fine and the record should be clarified to reflect the victim restitution ordered is the joint and several responsibility of Condiff and co-defendant Robert Fielder.
Based on our review of the record and applicable law, we modify Condiff’s sentence by striking two of the LWOP penalties and the parole revocation fine. As modified, we affirm the judgment.
The record contains substantial evidence to support the gang and lying in wait special circumstance findings. The jury was entitled to find that the murder was gang-related in that it was carried out by Fielder, a gang member, at the behest of Condiff, also a gang member, for the purpose of carrying out the gang activity of intimidating a witness against Condiff, and that the murder was committed through a ruse to conceal the shooter’s true purpose to kill the witness or relatives and after a sufficient period of waiting.
In contrast, the evidence does not support a sua sponte instruction on implied malice second degree murder. The evidence established that if the killing were murder, it was murder in the first degree. Moreover, omission of such instruction was harmless in view of the lying in wait special circumstance finding.
We note the appellate courts disagree as to whether the Three Strikes law applies to a LWOP penalty. (See, e.g., People v. Smithson (2000) 79 Cal.App.4th 480 [inapplicable], rev. den.; cf. People v. Hardy (1999) 73 Cal.App.4th 1429 [applicable], rev. den.) Absent guidance from our Supreme Court, we conclude the Three Strikes law is inapplicable to a LWOP penalty. The trial court therefore erred in tripling the LWOP penalty on count 1. Additionally, the trial court erred in imposing a parole revocation fine in light of Condiff’s LWOP sentence.
Contrary to Condiff’s claim, the record adequately reflects that Condiff and Fielder are jointly and severally liable for the amount of the ordered direct restitution.
BACKGROUND
We summarize the evidence regarding these gang-related crimes in the light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from the evidence that supports the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
The count 1 murder of Elvira Romero, the 82 year old grandmother of Jessica Romero, and the count 2 attempted murder of David Romero, her son and Jessica’s uncle, were committed in furtherance of Condiff’s goal of dissuading Jessica, a witness, from testifying in court against Condiff, who had been arrested for selling marijuana to Jessica.
On the evening of November 12, 2002, Condiff and Tyrone Baker, Condiff’s fellow gang member, knocked on the door of Jessica’s apartment, asked if Jessica were home, and identified themselves as Jessica’s friends in order to conceal their true motive, to kill Jessica. When her uncle said she was not home, they announced their intent to return and left.
Condiff needed to get to Jessica that night, because his preliminary hearing was the next day. He decided to modify his ruse to lure Jessica out into the open by staying behind in the car while Fletcher, Jessica’s friend, went with Baker to her apartment. He formed a back up plan to kill Jessica’s relative(s) if Jessica was not there. To effectuate his plan, Condiff instructed Baker to make sure Fielder had a gun. Baker retrieved guns from the backseat, pulled Fielder out of the car and gave him a gun. Baker and Fielder came upon the uncle sitting in the apartment patio area. When the uncle again said Jessica was not home, the two pulled out concealed guns, and Baker shot the uncle. The grandmother came outside, and the two dragged her to the carport area where Fielder shot her.
At trial, the following evidence was presented:
On August 31, 2002, around 7:29 p.m., while on vehicle patrol, uniformed Pasadena police officers David Alba and Javier Aguilar observed Condiff and Jessica in the driveway at 270 Parke Street in Pasadena. Condiff handed Jessica three baggies containing a green leafy substance, two of which tested positive for 5.64 grams of marijuana. Jessica was arrested before she could pay him. Condiff fled on foot but was pursued and later arrested. Officer Chris Sharma found on Condiff a pager and about $196 cash in small bills, possession of which was consistent with the sale of small amounts of marijuana.
Later that night, Condiff told Juan Acosta he had been bailed out of jail and that Jessica had snitched on him. Condiff also related that he had to kill Jessica, because the marijuana charge would be his third strike and he was fearful of what would happen.
One day in September, 2002, Condiff asked Acosta if he knew where Jessica lived. When Fielder arrived, Condiff instructed him to drive them there. Acosta gave directions. After meeting Jessica at a party that summer, Acosta had walked her home and while they were inside her apartment, Jessica told him her grandmother was home. Jessica resided with her 82 year old grandmother in the first apartment at 118 North Grand Oaks in Pasadena.
As the three proceeded by car down Grand Oaks, Jessica, who was on the sidewalk, got into a car along with an older woman and a Hispanic man. Spotting Jessica, Condiff stated, “‘I could have had her’” and “‘[n]ow is a good time to kill that bitch.’”
On October 2, 2002 Condiff was arraigned on the charges of sale of marijuana and possession of marijuana for sale, and the preliminary hearing was set for October 30th.
On October 30, 2002, in the courthouse hallway, Jessica told Condiff not to worry and indicated that he might be sentenced only to six months. Condiff responded, “‘No, I’ve been here before’” and that he would do 25 years if Jessica identified him. Jessica told him, “Okay, I understand.”
The trial court continued the preliminary hearing to November 13, at which time Jessica and Condiff were ordered to return. Afterwards, on the sidewalk, Jessica told Condiff, “Look, I’m not going to say nothing, don’t worry about it.” Condiff replied okay.
Sometime after leaving the courthouse, Condiff told Acosta that Jessica snitched on him and “‘I have to kill that bitch.’” He added that although Jessica told him that she would not testify against him, he did not trust her.
On November 12, 2002, sometime after the grandmother and uncle, who was visiting, finished dinner and were having coffee, Condiff and Baker, who were wearing hooded sweatshirts, knocked on the front door. The uncle and grandmother peered out the window but did not open the door. When the uncle asked what they wanted, they asked for Jessica and claimed to be her friends. The grandmother who understood some English but only spoke Spanish, told the uncle to inform the men that Jessica was not home. When the uncle told them Jessica was not home, the two men said they would be back and left.
The uncle was sitting outside in the patio area cooling off and relaxing and the door was partially open when two men wearing hooded sweatshirts returned within the hour, around 8:00 pm. They walked up to about six feet away from where he was sitting, and one asked, “‘[w]here is Jessica[.]’” The uncle responded, “‘No, Jessica is not here, Jessica is not here, Jessica is not here.’” The two men then removed handguns from their waistbands, and one of them shot the uncle in the left shoulder area.
Meanwhile, the grandmother was telling Isaac Romero, another son, over the telephone about the earlier visit when she announced, “‘here they come again’” and left the phone without hanging up. Within seconds, Isaac heard her speaking loudly and then what sounded like shots.
The uncle saw the grandmother run outside. The two men grabbed and dragged the grandmother by her hands over to the carport area where she was shot multiple times. The grandmother later died at the hospital from a fatal wound to her lower torso from one of the two bullets that struck her.
Afterwards, the two perpetrators ran into a car with its engine running that was parked outside the apartment complex, and a third man waiting inside drove the car away.
Fielder, who pled guilty to second degree murder, admitted at trial that he was the one who shot the grandmother. He identified Baker, who died before trial, as the one who shot the uncle.
Fielder gave this version of the circumstances surrounding the incident. In the summer of 2002, he and Acosta, his friend and neighbor, resided at 270 Parke Street, a multi-unit apartment complex in Pasadena. Both were selling marijuana and crack cocaine for Condiff, who invoked the Bounty Hunter Bloods gang.
Fielder and Acosta met Jessica at a party about July 2002. Later, Fielder saw Jessica on Parke Street. The three of them hung out together, and Jessica smoked some marijuana with Fielder. Acosta told Jessica in Fielder’s presence that she could get marijuana on Parke Street in the future. At some point in July, Fielder gave Jessica his phone number. She wrote it down in her phone book. He told her to go to Parke Street if she ever wanted “any nickel bags” of marijuana.
On August 31, 2002, Condiff told Fielder that he had been arrested for selling Jessica drugs and indicated it was Fielder’s fault for not being around when she showed up. He wanted Fielder to talk to Jessica, because he was “looking at three strikes, 25 years to life” in prison and did not want Jessica to testify.
One day, Fielder drove Condiff and Acosta along Grand Oaks, and Acosta pointed out the apartment building where Jessica lived. Upon sighting Jessica outside, Condiff said, “‘This is a good time to get that bitch.’” Fielder understood what Condiff wanted to do to Jessica. On a later occasion, after a court appearance, Condiff told Fielder that he did not believe Jessica when she said she would not testify against him. Fielder then knew that Condiff wanted something done to Jessica.
On or about October 28, 2002, Condiff and his “two homies[,]” namely, Baker and another male, drove over to Jessica’s apartment complex. Fielder followed in another car at Condiff’s request. When Fielder saw the two “homies” put on the hoods and Baker carrying a bag with guns towards Jessica’s place, Fielder left. He knew Condiff wanted something done to Jessica that day and thought the ‘homies” were going to “[s]tart shooting.”
On November 12, 2002, around 7:00 or 7:30 p.m., Condiff, who drove up in a car with Baker, told Fielder that they had gone to Jessica’s place but she would not speak to them. Fielder returned with them, because Condiff thought she would speak to Fielder, who was Jessica’s friend. Fielder went along despite the incident on October 28 incident.
Condiff asked Baker “if he was going to do it for him,” and Baker responded “‘Yeah, I’m going to do it. I got you. Don’t worry about it, I got you.’” Condiff then instructed Baker to “‘make sure your little homie’” had a “strap,” meaning gun. Baker retrieved guns from a bag in the backseat of the car.
Fielder asked Condiff something to the effect, “‘What you mean, what I got to do?’” Condiff told him, “‘I mean, you got to go talk to Jessica, do something to scare her, or something.’”
Yanking Fielder out of the car, Baker handed him a gun and the two proceeded almost side by side to Jessica’s apartment. Fielder had his gun in his pocket. He could not see where Baker had his gun. Fielder thought he was just supposed to talk to Jessica until he was handed a gun “and everything.”
As Fielder approached the door about to knock, David, who had been sitting outside, stood up and said in a loud voice repeatedly that Jessica was not there. Baker shot David, who fell to the ground. Fielder thought he was dead. The grandmother exited out the door, which was half open, and grabbed Fielder. He was backing away when in the carport his “gun goes off” while still in his pocket, maybe three times. The grandmother was struck and fell down. He admitted the carport was in the opposite direction from the gate exit. He denied ever intending to shoot the grandmother. Rather, he was just trying to get away.
Condiff was waiting in the car with the engine running when Fielder and Baker returned. The car then took off. In the car, Condiff asked Baker “if he did it[.]” Baker responded, “‘Yeah, I told you I got you.’” Condiff said, “‘Now, I know she’s not coming to court. She ain’t going to make it to court.’” When Fielder exited the car at Marengo, Condiff and Baker both warned him, “‘You better not say nothing.”
Detective Kyle Ballard, a gang expert, testified that the Pasadena Denver Lanes was an entrenched Blood gang who claimed the majority of the northwest portion of Pasadena as their territory and that it was a criminal street gang. Their criminal activities included murder, witness intimidation, and drug trafficking. The Pasadena Denver Lane gang would form alliances with blood gang members from outside the city.
Ballard opined Fielder, who admitted membership, was an active member of that gang. He further opined that the charged crimes were committed for the benefit of a criminal street gang. He explained that a Blood gang, such as the Pasadena Denver Lane Bloods, would commit crimes with other Blood gangs in order to make “identification of the actual perpetrators extremely difficult.” Such cooperation between gangs on the street would continue in jail and prison, ending up with the gangs uniting with one another. Such an alliance would essentially double the number of gang members in a broader area who could be called upon and strengthen the gang. “[T]he power and influence of one gang is going to affect both gangs in both areas” of the two gangs. He added that such an alliance also would enhance the gang’s witness intimidation activities, because the witnesses would have fewer places to hide or escape retaliation.
The Pasadena Denver Lane Bloods thus would benefit if Fielder, one of its members, conspired with a Bounty Hunter Blood to intimidate a witness resulting in murder and committed such intimidation, which resulted in murder, did so at the direction of a Bounty Hunter Blood gang member. The commission of the crime by Fielder would benefit the Bounty Hunter Bloods, because they “now know they have a strong ally within Pasadena. Pasadena Denver Lane is a very well-respected gang in the prison and the county jail system, and by continued cooperation, . . . it’s just sustaining their power throughout L.A. County.” Additionally, the alliance between the Pasadena Denver Lane Bloods and the Bounty Hunger Bloods would continue to strengthen, because both gangs could count on cooperation between them, which was evidenced by the fact one gang, namely the Pasadena Denver Lane Bloods, would commit crimes for or with a Bounty Hunter Bloods gang member.
If “Condiff instigated, directed and supplied the guns for the intimidation of a witness, Jessica . . . in this case, and ultimately her uncle was shot and her grandmother was wounded a day before Jessica was going to testify at a preliminary hearing, and that . . . Fielder, a Pasadena Denver Lane Blood, committed this crime with another Bounty Hunter,” Ballard opined that this crime was committed for the benefit of and in furtherance of both gangs. He explained that once the word “gets back to other potential victims or witnesses throughout, at least our city, to know that if they are even thinking about some sort of cooperation with the police, they can expect either [they] or their family members to be killed.”
Ballard also opined that Fielder’s stature in the Pasadena Denver Lane Bloods would increase if he murdered the grandmother “at the direction of a Bounty Hunter Blood[s] shot caller[.]”
Victor Ross, a gang expert with the Los Angeles Police Department, had previously testified as an expert on the Bounty Hunter Bloods gang. Ross testified that their territory is in the southeast area but primarily the Nickerson Gardens, a housing project consisting of over 1,100 units. At meetings, gang members would discuss their criminal activities, which included narcotic sales, shootings, and killing of witnesses. It was permissible for Bounty Hunter gang members to kill witness family members.
Ross opined that the Bounty Hunter gang was a criminal street gang and that their primary activities include narcotics, murder, and witness intimidation. He added that narcotic trafficking by Bounty Hunter Bloods also took place away from the neighborhood, typically by a Bounty Hunter gang member “setting up shop, if you will, in a different area” with the assistance of a relative or fellow gang member. That person would assist the Bounty Hunter gang member by providing background about the area, “where they can set up shop, who to deal with, and basically how they can get away with that type of crime.”
Ross also opined that if a witness testified against a Bounty Hunter, it would cost that witness his or her life, and if the gang members could not get to the witness, it was “okay for the gang to get to the relatives of the witness.”
In 1990 or 1991, Condiff admitted to Ross that he was a Bounty Hunter gang member, and that his particular clique was the “Lot Boys.” He stated he had been paroled recently from prison and returned to the Nickerson Gardens area afterwards. In prison, the various Blood gangs formed a “United Blood Nation,” in order to bond, and once in prison, it did not matter which Blood gang the prisoner claimed.
On November 13, 2002, Ross contacted Condiff at the Pasadena courthouse for the purpose of discussing criminal activity inside the Nickerson Gardens with the potential benefit to Condiff of the District Attorney’s office “doing something on his marijuana case[.]” Ross, his partner, and Condiff had a video-recorded meeting that evening in a trailer at the southeast area police station.
During the interview, Condiff demonstrated “he had knowledge of the inner criminal activities of the Bounty Hunter Bloods” and “he had a lot of knowledge of the narcotics dealing inside Nickerson Gardens.” Condiff told Ross he was employed with the housing authority. He spoke about housing authority employees who stored large quantities of cocaine in locked lockers and rooms on the housing authority property and who also provided keys to vacant units to fellow gang members for narcotics sales. He identified these employees “[a]s Bounty Hunter Blood[s] gang members, belonging to the Lot Boy [clique].” Condiff specifically identified three “O.G Bounty Hunters that he grew up with that actually run the projects” and were employees.
During the interview, Condiff never admitted he was an active gang member and denied he was still a gang member. Ross opined Condiff was still an active Bounty Hunter Bloods gang member as of August 31 and November 12, 2002. His opinion was based on his contact with and admissions of Condiff “of his activity with and identifying himself as a Bounty Hunter Blood[s] gang member, the crimes that he has been involved with since, and his knowledge of the inner workings, and . . . of the gang itself.”
At the November 13, 2002 interview, Condiff displayed a “L.B.” tattoo on his right hand, which stood for “Lot Boy.” Condiff told Ross that he had covered up a larger gang tattoo with a tattoo of a peacock. Ross opined that a gang member who left the “‘L.B.’ on [his] hand where it’s visible with any kind of shirt [he wore]” was signaling he was “not covering up the endearing [clique] of gang members that that particular member would belong to.”
Ross recalled a discussion with Condiff for about an hour before the video-taping at which Condiff admitted that he had attended meetings with gang members and related to Ross what had transpired at some. He also provided specific details regarding narcotics trafficking, murder, and other criminal activities within Nickerson Gardens.
Reliable confidential informants gave Ross information regarding Condiff’s status within the Bounty Hunter Bloods, which was a factor in Ross’ opinion about Condiff’s active gang status during the time the crimes were committed in 2002.
About a week prior to the interview, Condiff had a discussion with a gang member who displayed a gun and said “we killed about four or five Harvard Park [gang members] with this .357.’” Ross opined that “[a] gang member would not share this information with someone outside the gang[,]” because the speaker was confiding, almost bragging “about the gang work that’s been put in, and confiding that [to] someone outside the gang would subject him to investigation, or the police finding out.”
Condiff kept a photo album that intermingled gang-related photographs of himself and fellow gang members with family photographs. Ross opined that someone who kept such an album was a person who had not set aside his gang life.
Given a hypothetical based on the circumstances surrounding the shootings on November 12, 2002, Ross opined that the shooting of the uncle and murder of the grandmother were crimes committed for the benefit of a criminal street gang. His opinion was based on these factors: These crimes constituted the crime of witness intimidation. “[G]angs get their power from terrorizing and intimidating a community.” Such “intimidation goes as far as discouraging any citizens to come forward to call the police and report any criminal activities of a gang, and therefore also not to come to court and testify as witnesses against any street gang member.”
He further opined the shooting and killing were consistent with gang members engaging in acts to intimidate a witness, because “it’s okay for a gang member to get a witness’s family if they are not able to get to the witness.” Also, these crimes were carried out in association with a criminal street gang in that “it was committed by a criminal street gang member.”
Ross opined these crimes were carried out at the direction of a criminal street gang for the reason “it was carried out at the direction of a high member of the street gang, a shot caller or O.G.” He explained the shot caller or O.G. directed and intimidated “a younger gang member into doing the crime.” He opined the crimes furthered the interest of the criminal street gang, because it empowered the gang by leading street gang members to believe they gained more respect due to the fear and intimidation caused.
It was also Ross’ opinion that Condiff was an “[o]bvious shot caller” with regard to setting up shop and distributing narcotics in Pasadena. Ross explained that Condiff was the one “able to give others direction or orders to sell narcotics” and the one “to supply them with the narcotics.”
It remained his opinion that Condiff was an active gang member as of the dates of the charged crimes although Condiff had not been arrested for any crime after 1991 upon his parole from prison until 2002 when he was arrested for selling marijuana. Ross explained his opinion was based on Condiff’s “intimate knowledge of the workings and the knowledge of safe locations within that gang. And as well as investigations and interviews with confidential reliable informants. He also explained that Condiff was operating under the radar in that “he’s continued in gang life and activities, but [has] not had many contacts with the police.”
Ross opined these crimes would benefit both criminal street gangs, namely “first, the Bounty Hunters, because of the fact that they would be able to continue criminal activity,” and they would also benefit the Pasadena Denver Lane Bloods, because a young member could “elevate himself in that particular gang by doing a favor for a much larger street gang.”
Based on conversations and investigations with Baker himself, Ross opined Baker as an active gang member of the Bounty Hunter Bloods during the time the charged crimes were committed. His gang moniker was “‘Ty Stick.’”
Condiff did not testify. He presented evidence to show that he was not an active gang member at the time when the crimes were committed and that the police had coached Fielder on what to say in order to implicate Condiff and threatened to harass Fielder’s mother if he did not cooperate.
DISCUSSION
1. Abundant Evidence for Gang Special Circumstance Finding
Condiff challenges the gang special circumstance finding on the ground the evidence was insufficient to establish in November 2002 he was an active gang member and that his actions were for the benefit of a criminal street gang. To the contrary, abundant evidence supported both these elements.
This conclusion renders moot Condiff’s companion contention that reversal of the gang special circumstances finding also mandates dismissal of the gang allegations (§ 186.22, subd. (b)(1)) as to all counts as well and the firearm enhancements on these counts, which were dependent on the gang allegations, because Condiff was not the actual shooter.
To establish the gang special circumstance, the People were required to prove: “The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.” (§ 190.2, subd. (a)(22).)
A “criminal street gang “ is defined as “an ongoing association of three or more persons with a common name or common identifying sign or symbol [that] has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute[,] and . . . includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period. [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 617.) Condiff does not contest the sufficiency of the evidence to establish that both the Pasadena Denver Lane Bloods and the Bounty Hunters Bloods qualified as criminal street gangs.
a. Condiff’s Active Gang Member Status Shown
Condiff had admitted he was a member of Lot Boy, a clique of the Bounty Hunter gang. The testimony of the two gang experts set forth above established that Condiff was still an active Bounty Hunter gang member at the time of the murder. There is also ample additional circumstantial evidence to support an inference that Condiff continued to be active gang members at the time of the murder.
Ross identified Thomas Graham as a Bounty Hunter Bloods gang member with the Lot Boy clique based on Graham’s admission to Ross. Fielder testified that in 2001, Graham, his mother’s boyfriend, introduced Condiff to Fielder as his friend from Bounty Hunter Bloods, which was also Graham’s gang. In the summer of 2002, Graham introduced Condiff to Acosta, saying: “‘This is my homeboy from Bounty Hunters.”
Fielder testified that when he or Acosta owed Condiff money for drugs, Condiff would warn them something to the effect that “‘You’re messing with Bounty Hunters, Man. You better pay me my money.’” Ross opined a reference by Condiff to the effect “That’s on Bounty Hunters” was akin to swearing on something he held dear, which was the Bounty Hunters gang.
The Bounty Hunter gang had shot callers. A shot caller is “[s]omeone who is capable of directing others to do what he wants them to do.” “[A] shot caller can go to some of his homies in the neighborhood, and tell them that he needs them to go commit a particular crime” and “that other gang member [will] be expected to comply.” A shot caller uses other gang members as “enforcers” which are like “soldiers,” namely, somebody who carries out the orders of a shot caller “[w]ithout question.”
In October, about a month after Condiff’s arrest, Baker, a Bounty Hunter gang member, started to show up with Condiff at Parke Street. Ross opined the fact Condiff could cause “other individuals from Watts [or] the Nickerson Gardens area to come to Pasadena to commit these crimes on his behalf” signified Condiff was “still active within the Bounty Hunter Bloods, and a higher-up member that other members can seek favors from [for] doing favors.”
A gang member leaves the gang by moving from the area, for example, to a different part of the county or to another state. Ross opined that it was impossible for a Bounty Hunter “to not be still associated with that gang and walk around that particular gang area.” He further opined the fact Condiff lived in Gardena at the time of the charged crimes did not affect his opinion that Condiff was an active gang member, because Condiff “continued to visit and hang around the Nickerson Gardens area. And engage in criminal activity.”
b. Criminal Street Gang Benefit Not Negated by Personal Motive
Condiff contends that the People failed to show the murder of grandmother was committed to benefit a criminal street gang, because the grandmother was murdered for the purpose of intimidating Jessica from testifying against him, a personal motive. The fallacy of his position lies in his failure to acknowledge there were dual motives in play. Condiff’s personal motive does not detract from or negate the additional motive of conferring a benefit to the Bounty Hunter Bloods and Pasadena Denver Lane Bloods, which are criminal street gangs. The evidence established the existence of such benefit.
The murder of the grandmother was triggered by Condiff’s goal to prevent Jessica from testifying in court against him regarding their marijuana sale transaction, for which, if convicted, Condiff was subject to a life sentence under the Three Strikes law. Sale of narcotics in Pasadena, a neighborhood not its own, was consistent with Bounty Hunter gang-related narcotics activities. Other indicia of the gang connection were Condiff’s ability to call upon Baker, a Bounty Hunter gang member, as his enforcer to intimidate Jessica, which is also a gang-related activity common to both the Bounty Hunter and Pasadena Denver Lane gangs, and his ability also to snare Fielder, a member of an affiliated local gang, with which the Bounty Hunter Bloods gang would engage to “set up shop.”
It is of no import that Fielder was not a member of Condiff’s gang, the Bounty Hunter Bloods. Fielder was a member of the Pasadena Denver Lane, another Bloods gang. The jury was entitled to infer from the evidence that these two Bloods gangs worked in consort to promote their mutual narcotics activities and that in carrying out the murder of the grandmother, Fielder was engaged in witness intimidation, another mutual gang activity. One gang expert explained that a gang member could be expected to select a member of another gang to carry out the intimidation in order to render identification less likely. The benefit of such witness intimidation, including murder, also served to enhance the reputation of the Bounty Hunter gang by promoting the other gang as its strong ally in a territory not their own and in jail and prison. Also, such intimidation would assist Condiff, a Bounty Hunter gang member, to continue his gang-related narcotics activities.
Condiff argues that even if Fielder originally went to the residence to kill Jessica, there was no evidence that Fielder intended to kill one or more of her relatives, and thus, the killing of the grandmother was not committed in furtherance of gang activities. That Fielder transferred his intent to kill to a different target is of no comfort to Condiff.
A reasonable inference could be drawn that Fielder understood his mission to silence Jessica was to do so by any means, including the killing of relatives, namely, the grandmother. Although Jessica was the prime target, a gang expert explained that any relative was fair game, because intimidation, including the harming of a relative served the purpose of silencing the witness through fear. The unequivocal message sent was: The witness or other relative(s) would be killed if the witness testified against Condiff.
1. Lying-in-Wait Finding Amply Supported by Evidence
Condiff contends the lying in wait special circumstance must be vacated for the reason that there was insufficient evidence of concealment and waiting. We find the evidence ample. (People v. Stevens (2007) 41 Cal.4th 182, 201.)
The actual killer who is convicted of first degree murder is subject to the penalty of LWOP or death if any of the qualifying enumerated special circumstances is found true. (§ 190.2, subds. (1)-(22).) A defendant who is convicted of first degree murder but was not the actual killer is subject to the same possible penalties if he or she acted “with the intent to kill[.]” (§ 190.2, subd. (c).)
The lying-in-wait special circumstance requires that “[t]he defendant intentionally killed the victim by lying in wait.” (§ 190.2, subd. (a)(15).) “If . . . the evidence supports the special circumstance, it necessarily supports the theory of first degree murder. [¶] The lying-in-wait special circumstance requires ‘an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage . . . . ’ [Citations.] ‘The element of concealment is satisfied by a showing “‘that a defendant’s true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.’”’ [Citation.]” (People v. Carpenter (1997) 15 Cal.4th 312, 388; accord, People v. Moon (2005) 37 Cal.4th 1, 22; People v. Hillhouse (2002) 27 Cal.4th 469, 500.)
No minimum or particular amount of watchful waiting is a prerequisite for a lying-in-wait finding. Rather, all that is required is that the watching and waiting be for a “substantial period of time.” (People v. Moon, supra, 37 Cal.4th 1, 23.) In People v. Edwards (1991) 54 Cal.3d 787, our Supreme Court approved an instruction that advised the jury that “the lying in wait must be of sufficient duration to establish the elements of waiting, watching and concealment or other secret design to take the victim unawares and by surprise, and that a murder done suddenly without such waiting, watching and concealment is not murder by lying in wait.” (Id. at p. 823.) The Court explained “[t]hese requirements necessarily include a substantial temporal element. We have never required a certain minimum period of time, only a period not insubstantial.” (Ibid.; see also People v. Bonilla (2007) 41 Cal.4th 313, 332 [re-affirming that “an instruction that conveys both that a defendant must lie in wait at least long enough to premeditate and deliberate and that he must do so for a not insubstantial period of time is not unconstitutionally imprecise”].)
Contrary to Condiff’s claim, there was abundant evidence of a substantial period of watching and waiting for an opportune time to act. Baker and Fielder did not simply burst on the scene and blast the two shooting victims. Rather, Condiff needed to silence Jessica either directly or through intimidating her relative(s) before his preliminary hearing the next day. His goal therefore was to gain access to Jessica or her relative(s) that very night by any means available.
The uncontroverted evidence established that Condiff and Baker went to Jessica’s home to confront her and ensure her silence. To this end, Condiff and Baker concocted a ruse to gain access to Jessica. They lulled her grandmother and uncle into a false sense of security by pretending to be Jessica’s friends so that Jessica’s relatives would not alert her or otherwise raise the alarm. Jessica did not appear at the door, and the grandmother and uncle would not open the door. They simply told the perpetrators that Jessica was not home.
After the visitors left with an assurance of their return, the uncle thought nothing sinister about their visit and went outside to sit in the patio. He was sitting there with the door partially open when two perpetrators, Baker and Fielder, Jessica’s friend, returned. The unsuspecting uncle was not immediately shot. Baker again attempted to gain access to the prime target, Jessica, by asking where she was. Neither Baker nor Fielder disclosed their true motives, and their guns were not on display. It was only after the uncle again said she was not there that the two men removed their concealed guns, and Baker shot him. Similarly, the grandmother was not on guard when she went out to investigate what was happening, because she did not know their true purpose, and thus, had no suspicion that they would seek to harm her upon their return. Fielder did not shoot her dead on the spot. Rather, he and Baker dragged the grandmother to the carport, a less visible location, and it was there that Fielder shot at her three times. Assuredly, these circumstances amount to lying-in-wait to catch the victims unawares, which is what happened here.
3. Omission of Implied Malice Instruction Proper and Harmless
Condiff contends that the trial court committed reversible error by failing to instruct sua sponte on implied malice murder based on the evidence that Fielder never intended to kill anyone, including grandmother, and he only intended to scare Jessica with the gun, which just happened to go off when the grandmother grabbed onto him and would not let go. The evidence presented does not support instruction on implied malice second degree murder. Moreover, the omission of such instruction was harmless in view of the lying-in-wait special circumstances finding.
“To prove first degree murder of any kind, the prosecution must first establish a murder within section 187-that is, an unlawful killing with malice aforethought. [Citations.] Thereafter, pursuant to section 189, the prosecution must prove the murder was perpetrated by one of the specified statutory means, including lying in wait, or ‘by any other kind of willful, deliberate, and premeditated killing, . . . ’ (Italics added.)[] Lying in wait is the functional equivalent of proof of premeditation, deliberation, and intent to kill. [Citation.]” (People v. Stanley (1995) 10 Cal.4th 764, 794-795, fn. omit.)
Murder of the second degree exists where the unlawful killing of a human was the direct result of an intentional act, the natural consequences of which are dangerous to human life, that was deliberately committed with knowledge of the danger to, and with conscious disregard for, human life, although the defendant did not harbor any intent to kill. (See, e.g., People v. Nieto Benitez (1992) 4 Cal.4th 91, 106, 110; former CALJIC 8.31; now CALCRIM 520; see generally, People v. Swain (1996) 12 Cal.4th 593, 601.)
“Second degree murder is a lesser included offense of first degree murder. [Citation.] Therefore, if there was evidence justifying a second degree murder conviction, the court had a duty to instruct on that offense.” (People v. Cooper (1991) 53 Cal.3d 771, 827; see also, People v. Cunningham (2001) 25 Cal.4th 926, 1008; see generally,People v. Jenkins (2006) 140 Cal.App.4th 805, 817.)
A trial court commits reversible error if it fails to instruct on any lesser included offense that is substantially supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Nonetheless, “the existence of ‘any evidence, no matter how weak[,]’” does not compel the giving of a lesser included offense instruction. A trial court is not obliged to instruct on a lesser included offense unless the evidence is “‘substantial enough to merit consideration’ by the jury.” (Ibid.)
“In a first degree murder case, the trial court therefore need not have instructed sua sponte on the necessarily included offense of second degree murder on a theory of implied malice unless there was evidence sufficient to deserve consideration by the jury, i.e., evidence by which a jury composed of reasonable persons could have concluded that defendant had acted intentionally but without express malice. [Citations.]” (People v. Bunyard (1988) 45 Cal.3d 1189, 1233.)
In this instance, the evidence was insubstantial. Contrary to Condiff’s claim, this was not a case of a possible accidental discharge of a firearm. Fielder testified that he did not intentionally shoot the grandmother; rather, the gun just happened to go off as he struggled to make the grandmother let go of him and escape. The physical evidence refutes his self-serving testimony. By his own admission, Fiedler acknowledged at trial that the carport where the grandmother and he ended up was in the opposite direction of the exit to the apartment complex. Moreover, the uncontroverted evidence by the firearm expert established that the gun used by Fielder would not simply discharge. Rather, the gun, which had a safety mechanism, had to be in the proper position to fire, and to release the trigger, the shooter had to exert energy equivalent of the energy “slightly less” than that necessary “to lift up almost a full gallon of milk by the handle.”
Condiff, who did not testify, presented no evidence to counter the overwhelming evidence that Fiedler harbored the requisite intent and acted accordingly. Rather, his defense was that Fiedler lied about appellant’s involvement. The police coached Fiedler how to implicate appellant and threatened to harass Fiedler’s mother if Fiedler did not comply. Accordingly, no implied malice second degree murder instruction was warranted. (See People v. Bunyard, supra, 45 Cal.3d at p. 1234.)
In any event, omission of such instruction, even if error, was harmless. The jury expressly found true the lying-in-wait special circumstance allegation, and thus, necessarily determined that the killing of grandmother was first degree murder. (See, e.g., People v. Earp (1999) 20 Cal.4th 826, 886; see also, People v. Beames (2007) 40 Cal.4th 907, 929.)
4. Triple LWOP Penalty Unauthorized Under Three Strikes
In tripling Condiff’s LWOP sentence on count 1, the trial court acknowledged the contrary conclusions reached in the Hardy and Smithson cases and determined that Hardy controlled. We disagree.
A sentence is “unauthorized” where it could not be lawfully imposed under any circumstances in the case. (People v. Scott (1994) 9 Cal.4th 331, 354.) Accordingly, an unauthorized sentence “is subject to judicial correction whenever the error comes to the attention of the reviewing court. [Citations.]” (People v. Dotson (1997) 16 Cal.4th 547, 554, fn 6.)
The trial court tripled Condiff’s LWOP sentence on count 1, apparently under alternative (iii) as the “greater” of the three possible minimum terms of an indeterminate term for a third striker under the Three Strikes law (§§ 667, subd. (e)(2)(A)(iii), 1170.12, subdivision (c)(2)(A)(iii).) (See RT 9031-9032) This was an unauthorized sentence.
When a sentence of LWOP is imposed, the term of confinement is life without possibility of parole, and thus, there can be no minimum or any specified period of imprisonment that must be served before the defendant becomes eligible for parole. The tripling provision of the Three Strikes law is invoked only where the defendant must serve a minimum term of an indeterminate sentence.
The Three Strikes Law provides that if a third striker, namely, a defendant who has two or more strikes “that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of [¶] (i) three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions, or [¶] (ii) twenty-five years or [¶] (iii) the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.” (§ 1170.12, subd. (c)(2)(A)(i)-(iii), italics added; see also, § 667, subd. (e)(2)(A)(iii) [substantially identical provision].)
This plain, unambiguous language establishes the above tripling provision of the Three Strikes law applies only if a defendant is eligible for parole upon service of a minimum term of an indeterminate sentence. The tripling provision of the Three Strikes law therefore has no application to a LWOP penalty, which gives rise to an indeterminate sentence with no minimum term.
We note that the Third District Court of Appeal in People v. Smithson, supra, 79 Cal.App.4th 480 reached a similar conclusion. In Smithson, the People asserted the trial court erred by failing to double the LWOP penalty. (Smithson, supra, 79 Cal.App.4th at p. 503.)
The court disagreed and explained: “An LWOP sentence is an indeterminate sentence without a minimum term. The People cite no authority by which we may write a minimum term into an LWOP sentence where none exists. Because an LWOP sentence is not a determinate term and does not contain a minimum term, it is not subject to the doubling requirement of subdivision (e)(1)” of section 667. (Smithson, supra, 79 Cal.App.4th at p. 503.) The court noted that the plain language of section 667, subdivision (e)(1)--which is essentially identical to that of section 1170.12, subdivision (c)(1)--provided for the doubling only of a determinate term or the minimum term of an indeterminate term. (Id. at pp. 503-504.)
In contrast, our colleagues in Division Two of this district reached the opposite conclusion. In People v. Hardy, supra, 73 Cal.App.4th 1429, the court reasoned that the Three Strikes law must be construed to apply to a LWOP penalty, because it was the “intent of the Legislature and the voters that persons with prior strikes serve longer sentences[.]” (Id. at p. 1434.)
We find the analysis of Smithson to be persuasive. In Smithson, the court concluded section 667, subdivision (e)(1), which mirrors section 1170.12, subdivision (c)(1), requires the doubling of the minimum term of an indeterminate sentence but does not provide for the doubling of an indeterminate sentence. This conclusion is consistent with People v. Jefferson (1999) 21 Cal.4th 86, in which our Supreme Court held that a trial court erred by doubling the life with possibility of parole sentence of the second striker defendant. (Id. at p. 99.) The Court explained that section 667, subdivision (e)(1), mandated the doubling of the minimum term of an indeterminate sentence, not the doubling of the indeterminate life sentence itself. (Ibid.)
We decline to adopt the contrary conclusion reached in Hardy for the reason that the court read into the Three Strikes law a provision that does not comport with its clear, unequivocal language. (Hardy, supra, 73 Cal.App.4th at p. 1434.) No need arises to construe a statute or resort to indicia of legislative intent where, as here, the statutory language is clear and unambiguous. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)
In view of the foregoing, we strike two of the LWOP penalties from Condiff’s sentence on count 1.
Condiff raises as an alternative ground the argument that resentencing him on count 1 to triple LWOP was unauthorized under the proscription of section 1170, subdivision (d), against imposition of a new sentence within 120 days of commitment that is “greater” than the initial sentence. He further argues that to the extent the record, which he asserts “is a bit vague,” reflects the trial court increased his sentence on “count 2 from 25 years to life, to a term of 45 years to life, . . . this is a violation of section 1170, subdivision (d)” as well.
5. Vacating of Parole Revocation Fine Mandated
The trial court imposed a restitution fine (§ 1202.4, subd. (b)) in the amount of $5,000 and imposed and then stayed a parole revocation fine (§ 1202.45) in the same amount. Condiff contends, and respondent concedes, that imposition of any parole revocation fine was error, because Condiff was sentenced to LWOP. We agree and strike the fine from the judgment.
“In 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.” (§ 1202.45.)
As this court previously concluded, “[a] parole revocation fine may not be imposed for a term of life in prison without possibility of parole, as the statute is expressly inapplicable where there is no period of parole. [Citation.]” (People v. Jenkins, supra, 140 Cal.App.4th 805, 819.) We explained that a contrary conclusion is not compelled by reason that a defendant also was sentenced to a minimum term to life on a different count. (Ibid.) Respondent has cited nothing new or different that would warrant revising this issue. We therefore strike the $5,000 parole revocation fine.
6. Record Reflects Direct Restitution Joint and Several Liability
Condiff contends the record must be corrected to reflect he and Fielder are jointly and severally liable for the direct restitution ordered. His contention is refuted by a plain reading of the record.
The trial court ordered direct restitution (§ 1202.4, subd. (f)) in the amount of $6,120.69 with respect to the victim in count 1. The reporter’s transcript is silent on the issue of individual or joint and several liability for such restitution. The clerk’s transcript recites that Condiff “is jointly and severally liable with co-defendant Robert Fielder.” We deem the clerk’s transcript to be the correct record on this point. (See, e.g., People v. Smith (1983) 33 Cal.3d 596, 599; People v. Ritchie (1971) 17 Cal.App.3d 1098, 1103-1104; In re Evans (1945) 70 Cal.App.2d 213, 216.)
DISPOSITION
The judgment is modified by striking two of the LWOP penalties from Condiff’s sentence on count 1 and the $5,000 parole revocation fine, and, as modified, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment accordingly.
We concur: RUBIN, J., FLIER, J.
This contention is moot as to count 1 in view of our disposition above. As to count 2, the record unambiguously reflects he was sentenced to 25 years to life on his conviction. We do point out, however, that the record further reflects Condiff was not yet committed at the time of resentencing, and thus, subdivision (d) of section 1170, is factually inapposite. He was sentenced on October 7, 2005 and the trial court re-sentenced him on October 12th. The abstract of judgment reflects he was not committed until November 1, 2005. (CT 1895-1896, 1908, 1900-1901.) (See, e.g., People v. Karaman (1992) 4 Cal.4th 335, 344.)