Opinion
D073867
09-26-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER JERMAINE GREEN et al., Defendants and Appellants.
Ellen M. Matsumoto, under appointment for the Court of Appeal, for Defendant and Appellant Christopher Jermaine Green. Arthur Martin, Ronda Norris, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Dawayne Green. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Teresa Torreblanca, Arlene A. Sevidal, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. INF 1502142) APPEALS from judgments of the Superior Court of Riverside County, Anthony R. Villalobos, Judge. Vacated in part and remanded with directions. Ellen M. Matsumoto, under appointment for the Court of Appeal, for Defendant and Appellant Christopher Jermaine Green. Arthur Martin, Ronda Norris, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Dawayne Green. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Teresa Torreblanca, Arlene A. Sevidal, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A
A jury convicted Joseph Dawayne Green (Joseph) and Christopher Jermaine Green (Christopher) (collectively appellants), of premeditated and deliberate attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 1), assault with a firearm (§ 245, subd. (a)(2); counts 2 & 3), being a felon in possession of a firearm (§ 29800, subd. (a)(1); counts 4 [Joseph] and 5 [Christopher]), and active participation in a criminal street gang (§ 186.22, subd. (a); count 6). As to counts 1 through 3, the jury found true allegations appellants committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subds. (b)(1)(B) & (C)). As to count 1, the jury also found true allegations appellants personally and intentionally discharged a firearm during the commission of the offense (§§ 1192.7, subd. (c)(8), 12022.53, subd. (c)). Finally, as to counts 2 and 3, the jury found true allegations appellants personally used a firearm during the commission of the offenses (§§ 1192.7, subd. (c)(8), 12022.5, subd. (a)).
All further statutory references are to the Penal Code unless otherwise stated.
The court subsequently found true allegations Christopher had two prior strike convictions (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), two prior serious felony convictions (§ 667, subd. (a)), and one prior prison commitment conviction (§ 667.5, subd. (b)). The court found true allegations Joseph had three prior prison commitment convictions (§ 667.5, subd. (b)).
B
On appeal, Joseph contends we must reverse his attempted murder conviction because the court failed to give the jury a unanimity instruction. He also contends we must reverse his attempted murder conviction because the court did not fully instruct the jury on the requirements for aider and abettor culpability.
Appellants both contend we must reverse their attempted murder convictions and the true findings for the gang benefit enhancement allegations because the court improperly allowed the gang expert to testify directly about their mental state and because the court allowed the prosecution to use their prior convictions as gang predicate offenses. They further contend there was insufficient evidence to support the true findings on the gang benefit enhancement allegations.
Lastly, both appellants and the People contend we must vacate appellants' sentences and remand the matter for a new sentencing hearing because the court made multiple sentencing errors.
We agree there are multiple sentencing errors requiring correction. We, therefore, vacate appellants' sentences and remand the matter to the trial court for a new sentencing hearing. In all other respects, we affirm the judgments.
II
BACKGROUND
A
The victim was previously a member of the 12th Street Mafia Crips (12th Street gang). He left the gang when he became a parent. After leaving the gang, he was convicted of some felonies and sentenced to a jail term. Because of his former gang member status, he served his sentence in protective custody to protect him from active gang members. After he was released from jail, a 12th Street gang member shot at him.
B
Sometime after that incident, while the victim and a friend were walking near a street corner, the victim saw Joseph in the backseat of a car with a missing rear window. There were two or three other men in the car with Joseph, including Christopher, who was sitting in the front passenger seat. While the car was stopped at a stop sign, the victim and Joseph made eye contact and exchanged angry looks. The victim waved his hands and yelled at Joseph, essentially challenging Joseph to a fight.
The victim knew Christopher and told a police officer Christopher was one of the men in the car. The victim also identified Christopher as one of the men at trial. However, the victim did not identify Christopher at the preliminary hearing or in a photographic lineup. He told the officer who conducted the lineups he did not want to help with the lineups because he did not want to continue being labeled a snitch. He made a similar remark to his probation officer. When he eventually agreed to look at the lineups and was shown a picture of Christopher in a lineup, he pointed at the picture and said the person in the picture looked like one of the men in the car. When cross-examined about his trial identification, he said he was not sure if Christopher was the passenger.
Joseph did not reply to the challenge or get out of the car. He just smiled and brandished a gun out of the left back passenger window. Then, as the car proceeded through the intersection, a bystander saw the man in the backseat of the car fire multiple gunshots at the victim and the victim's friend. Another bystander who heard the gunshots saw a man get into the front passenger side of the car and saw the car drive away.
A crime scene investigator found nine spent shell casings in the roadway where the shooting occurred. Four of the shell casings were nine-millimeter caliber. The other five were .380-caliber. The investigator found two spent nine-millimeter caliber shell casings in a sweatshirt in the rear passenger side of the car used in the shooting, which appellants sometimes drove. The investigator also found gunshot residue on the rear passenger side roof area of the car.
As part of an unrelated investigation, a police officer searched the apartment where Joseph lived and found a .380-caliber semiautomatic handgun with a loaded magazine in one of the bedroom closets. The gun was wrapped in a shirt on top of a suitcase.
Another police officer in another unrelated matter recovered and searched a stolen car. The car had been seen in the apartment complex where Christopher's girlfriend lived and where Christopher occasionally stayed. Both Christopher and his girlfriend had been seen driving the car. The officer found a loaded nine-millimeter semiautomatic handgun in the glove box. The officer also found Christopher's girlfriend's credit card in the driver's side front door pocket, and she acknowledged she may have ridden in the car one time.
All six of the nine-millimeter caliber shell casings found at the crime scene were fired from the nine-millimeter handgun found in the stolen car. All five of the .380-caliber shell casings found at the crime scene were fired from the .380-caliber handgun found in the bedroom closet of the apartment where Joseph was staying.
Appellants' sister told a police detective she had once seen Joseph with a gun. She also said she was told by Joseph two days after the shooting that Joseph, Christopher, and a third person did the shooting. Christopher was driving the car, Joseph was in the front passenger seat, and the third person was in the backseat. At trial, she denied talking with Joseph about the matter and instead testified it was the third person who told her who was in the car at the time of the shooting. She also denied ever seeing Joseph with a gun.
C
A gang expert testified the 12th Street gang was formed in 1999 or 2000 after its founding members broke away from a rival Crips gang. The 12th Street gang has been continually active since its formation and had about 25-30 members at the time of the shooting.
Unlike other Crips gangs, the 12th Street gang uses the color red to identify itself. The gang is sometimes referred to as 12th Street, 12th Street Posse, or just 12. Common signs and symbols include tattoos of the number 12 and the letters ST (Street), TSM (Twelfth Street Mafia), or just T.
The primary activities of the 12th Street gang include narcotics sales, firearm sales, firearm possession and use, prostitution, murder, assaults with deadly weapons, robberies, and burglaries. As examples of these activities, also known as predicate offenses, in 2010, Joseph was convicted of being a felon in possession of a firearm. In 2012, a gang member was convicted of attempted voluntary manslaughter, assault with a deadly weapon, and active participation in a criminal street gang. The same year, a gang member was convicted of being a felon in possession of a firearm and active participation in a criminal street gang. In 2014, Christopher was convicted of first degree burglary. Finally, in 2015, a gang member was convicted of carrying a concealed firearm and evading arrest.
The parties separately stipulated Joseph and Christopher had each previously been convicted of being a felon in possession of a firearm.
Twelfth Street gang members commonly commit crimes with other gang members both to prove the crimes occurred and to demonstrate their willingness to commit crimes. The crimes and other acts of violence garner respect for the gang by instilling fear in the community through the demonstration of the gang's force and power. The crimes and acts of violence also deter members of the community from cooperating with law enforcement.
Twelfth Street gang members may leave the gang by being "jumped out," or beaten. They can also walk away, but they risk being harmed or killed if they do. A person who leaves the gang and cooperates with law enforcement is considered a snitch and his life is at risk.
The gang expert believed Joseph was a member of the 12th Street gang at the time of the charged offenses because Joseph previously admitted being a gang member. He also had references to the gang tattooed on the back of his arms and the back of his neck.
The gang expert believed Christopher was a member of the 12th Street gang at the time of the charged offenses because Christopher admitted to being a gang member and to "putting in work," meaning engaging in criminal activity, for the gang on multiple occasions. He also has references to the gang, its members, and its rivals tattooed on his forehead, chest, stomach, and other parts of his body.
In response to a hypothetical question based on the facts of the shooting, the gang expert opined the shooting was committed for the benefit of the 12th Street gang. He based his opinion on the victim's status as a former gang member and the victim's prior cooperation with law enforcement. He explained the gang prohibits such cooperation and will kill to prevent members from sharing information about the gang or its members with law enforcement. He further explained the shooting conveys to the community that those who betray the gang or cooperate with law enforcement will be killed.
The gang expert also opined each of the shooters and the driver of the car acted in association with another member of the 12th Street gang. He based this opinion on the shooters acting in concert when they fired at the victim and the victim's friend. He also based it on the driver stopping the car and waiting for the shooters, making it easier for the shooters to aim and fire their weapons.
The gang expert additionally opined the two shooters had the specific intent to promote, further, or assist in felonious criminal activity by 12th Street gang members. In his view, the activity promoted the gang and the gang's dangerousness. The activity also advanced the gang's objective of instilling fear among the gang's members and the community, which deters violations of the gang's rules and cooperation with law enforcement and makes it easier for the gang to commit and get away with future crimes.
The gang expert further opined both appellants were aware of the 12th Street gang's primary criminal activities at the time of the shooting. He based his opinion on the tendency of gang members to commit crimes together and to share information beneficial to the gang, which then spreads among the other gang members and the community.
III
DISCUSSION
A
Joseph contends we must reverse his attempted murder conviction because the court failed to give the jury a unanimity instruction. We review an assertion of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Shaw (2002) 97 Cal.App.4th 833, 838.)
"Among the essential elements of the right to trial by jury are the requirements that a jury in a felony prosecution consist of 12 persons and that its verdict be unanimous." (People v. Collins (1976) 17 Cal.3d 687, 693; Cal. Const., art. I, § 16.) Thus, " '[e]ven absent a request, the court should give [a unanimity] instruction "where the circumstances of the case so dictate." ' " (People v. Covarrubias (2016) 1 Cal.5th 838, 877.)
" 'In deciding whether to give [a unanimity] instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, [the court] should give the unanimity instruction.' " (People v. Covarrubias, supra, 1 Cal.5th at p. 878.)
Here, the prosecutor charged appellants with a single count of attempted murder and argued the jury could find them guilty either as direct perpetrators or as aiders and abettors of one another. This presents an example of the second situation and cases have long held "a jury 'need not decide unanimously whether' a defendant is guilty 'as the aider and abettor or as the direct perpetrator.' " (People v. Valdez (2012) 55 Cal.4th 82, 153, quoting People v. Santamaria (1994) 8 Cal.4th 903, 918, & citing People v. Jenkins (2000) 22 Cal.4th 900, 1025; accord, People v. Wilson (2008) 44 Cal.4th 758, 801.) Accordingly, the court did not err by failing to give the jury a unanimity instruction.
People v. Espinoza (1983) 140 Cal.App.3d 564 (Espinoza), upon which Joseph relies, does not alter our conclusion. In Espinoza, the prosecutor argued the jury could find the defendant guilty of assault with a deadly weapon based either on the defendant's own use of a knife or his accomplice's use of a rifle during the commission of a robbery. (Id. at p. 567.) The court concluded a unanimity instruction was required because the two physical acts were different and the jury may not have necessarily characterized both acts as felonious assaults. (Id. at p. 569.) As the physical acts of the two shooters in this case were the same, Espinosa is inapposite.
B
Joseph also contends we must reverse his attempted murder conviction because the court failed to instruct the jury with CALCRIM No. 401. The People do not dispute the court erred by failing to give the jury this instruction. (See People v. Prettyman (1996) 14 Cal.4th 248, 271; People v. Beeman (1984) 35 Cal.3d 547, 560-561; People v. Patterson (1989) 209 Cal.App.3d 610, 616-617.) However, the People contend the error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Hardy (1992) 2 Cal.4th 86, 186; People v. Dyer (1988) 45 Cal.3d 26, 64.)
1
a
Before trial, the prosecution requested the court instruct the jury with CALCRIM Nos. 400 and 401 relating to the aiding and abetting. At the jury instruction conference, the court agreed to instruct the jury with CALCRIM No. 400. The parties never discussed the CALCRIM No. 401 instruction and the court only instructed the jury with CALCRIM No. 400.
b
CALCRIM No. 400 informed the jury:
"A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime.
"A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator."
c
Where, as here, the prosecution's theory is that the defendant intended to aid and abet the charged crimes, the court should instruct the jury with CALCRIM No. 401 after instructing the jury with CALCRIM No. 400. (Bench Notes to CALCRIM No. 400.) CALCRIM No. 401 would have additionally informed the jury:
"To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that:
"1. The perpetrator committed the crime;
"2. The defendant knew that the perpetrator intended to commit the crime;
"3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
"AND
"4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime.
"Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime.
"If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.
"[If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.]
"[A person who aids and abets a crime is not guilty of that crime if he or she withdraws before the crime is committed. To withdraw, a person must do two things:
"1. He or she must notify everyone else he or she knows is involved in the commission of the crime that he or she is no longer participating. The notification must be made early enough to prevent the commission of the crime.
"AND
"2. He or she must do everything reasonably within his or her power to prevent the crime from being committed. He or she does not have to actually prevent the crime.
"The People have the burden of proving beyond a reasonable doubt that the defendant did not withdraw. If the People have not met this burden, you may not find the defendant guilty under an aiding and abetting theory.]"
d
Notwithstanding the court's failure to instruct the jury with CALCRIM No. 401, the court instructed the jury with CALCRIM No. 1400, relating to the offense of active participation in a criminal street gang. Among other points, this instruction informed the jury:
"To prove that the defendant aided and abetted felonious criminal conduct by a member of the gang, the People must prove that:
"1. A member of the gang committed the crime;
"2. The defendant knew that the gang member intended to commit the crime;
"3. Before or during the commission of the crime, the defendant intended to aid and abet the gang member in committing the crime;
"AND
"4. The defendant's words or conduct did in fact aid and abet the commission of the crime.
"Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime.
"If all of these requirements are proved, a defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.
"If you conclude that a defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether a defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.
"A person who aids and abets a crime is not guilty of that crime if he or she withdraws before the crime is committed. To withdraw, a person must do two things:
"1. He or she must notify everyone else he or she knows is involved in the commission of the crime that he or she is no longer participating. The notification must be made early enough to prevent the commission of the crime;
"AND
"2. He or she must do everything reasonably within his or her power to prevent the crime from being committed. He or she does not have to actually prevent the crime.
"The People have the burden of proving beyond a reasonable doubt that the defendant did not withdraw. If the People have not met this burden, you may not find the defendant guilty under an aiding and abetting theory."
2
As previously stated, "[we] review a claim of instructional error de novo. [Citation.] ' " '[T]he correctness of jury instructions is to be determined from the entire charge of the [trial] court, not from a consideration of parts of an instruction or from a particular instruction.' " ' [Citation.] In particular, ' " '[t]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.' [Citation.]" ' [Citation.] 'Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions.' " (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.)
In this case, the court's entire charge included CALCRIM No. 1400, which contained the exact same information as and, therefore, cured the court's omission of CALCRIM No. 401. (See People v. Ye Park (1882) 62 Cal. 204, 206-207 [court's error in giving an instruction not containing the full definition of the crime charged was cured by another instruction containing a full and correct definition].) Reading CALCRIM No. 400 together with and in light of CALCRIM No. 1400, as the jury was instructed and presumed to have done, we conclude there is no reasonable likelihood the jury would have found Joseph culpable under an aiding and abetting theory without finding he had the requisite intent for such culpability. Accordingly, we conclude the court's failure to instruct the jury with CALCRIM No. 401 was harmless beyond a reasonable doubt.
C
Appellants contend we must reverse their convictions for attempted murder and the true findings for the gang benefit enhancement allegations because the court improperly allowed the gang expert to testify directly about their mental state. We review a court's ruling on the admissibility of evidence for abuse of discretion. (People v. Waidla, supra, 22 Cal.4th at p. 717.)
1
After the prosecution's direct examination of the gang expert, Joseph's defense counsel cross-examined the expert and the following exchange occurred:
"[DEFENSE COUNSEL]: You talked about certain ways of getting out of a gang on direct examination, and I believe one of the ways to get out was simply walk away from the gang, right?
"[EXPERT]: Yes.
"[DEFENSE COUNSEL]: But according to you that could be very dangerous to your health, correct?
"[EXPERT]: From everything I have learned in being a gang task force officer, yes it is not something that is
"[DEFENSE COUNSEL]: Now, the alleged victim in this case, ... he apparently walked away from the gang, right?
"[EXPERT]: That's why he was being shot at, yes.
"[CHRISTOPHER'S DEFENSE COUNSEL]: Object to the answer, your Honor, as to a conclusion. I would ask that that be stricken and the witness be admonished to just answer the objection.
"[PROSECUTOR]: I object to that speaking objection, and he answered the question.
"THE COURT: Hold on, counsel.
"[CHRISTOPHER'S DEFENSE COUNSEL]: I object to his objection.
"THE COURT: Counsel, we don't need all these side remarks. That was in response to his question, counsel. So overruled."
2
"An expert may not testify whether a specific defendant committed an offense for gang purposes. [Citation.] An expert may only express an opinion, based on hypothetical questions that track the evidence, on whether an offense, if the jury found it in fact occurred, would have been for a gang purpose." (People v. Ewing (2016) 244 Cal.App.4th 359, 382 (Ewing); accord, People v Vang (2011) 52 Cal.4th 1038, 1048 (Vang).)
To the extent the expert's response to Christopher's defense counsel's question constitutes an opinion that the shooting was for a gang purpose, the People concede the expert's opinion was improper because the expert was not a percipient witness and it was the jury's responsibility to determine this fact. Nonetheless, the People contend and we agree the error was harmless.
3
Later in the trial, in response to a hypothetical question tracking the evidence presented in the case, the expert testified he believed the shooters committed the shooting for the benefit of or in association with a criminal street gang and promoted further criminal activity by the gang. He then explained the bases for his opinion, which included the hypothetical victim's status as a former gang member who cooperated with law enforcement and the gang's desire to deter such conduct. This opinion testimony was proper. (Vang, supra, 52 Cal.4th at p. 1048.) The proper opinion testimony coupled with the other evidence in the case amply supported findings the charged shooting offenses were gang related. (Ewing, supra, 244 Cal.App.4th at p. 383.) Accordingly, we conclude there was no reasonable probability appellants would have obtained a more favorable result absent the error. (Evid. Code, § 353; Ewing, at pp. 382-383 [error in admitting gang expert opinion evidence harmless where the prosecutor asked the expert a hypothetical question eliciting a proper opinion that was essentially the same as the improper opinion].) Given our conclusion, we need not decide whether appellants forfeited this contention by failing to properly object below.
D
Appellants also contend we must reverse their convictions for attempted murder and the true findings for the gang benefit enhancement allegations because the court improperly allowed the prosecution to admit evidence of their prior convictions as predicate offenses. They contend the court should have excluded the evidence under Evidence Code section 352 and the court's failure to do so likely prejudiced the jury's analysis of whether they had the requisite intent for attempted murder and whether the shooting was gang related.
1
To prove the gang benefit enhancement allegations, the prosecutor had to establish, among other elements, 12th Street gang members "individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subds. (b) & (f); People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley), disapproved on another point in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13; People v. Hill (2011) 191 Cal.App.4th 1104, 1138 (Hill).) To establish a " 'pattern of criminal gang activity,' " the prosecutor had to show that two or more persons, on separate occasions, committed or attempted to commit two or more enumerated offenses. (§ 186.22, subd. (e); Hill, supra, at p. 1138.) These offenses are referred to as " 'predicate offenses.' " (Gardeley, supra, at p. 610 & fn. 1.)
Before trial, appellants sought to preclude the prosecution from using some of their prior convictions for predicate offenses on the grounds the prior convictions were prejudicial and the prosecution had other predicate offenses it could use to meet its burden of proof. The prosecution argued it needed to use appellants' prior convictions to prove the appellants knew the gang was engaged in criminal activity. The court allowed the prosecution to use three prior convictions of other 12th Street gang members and one prior conviction of each appellant. Consistent with the court's ruling, the prosecution introduced evidence Joseph had previously been convicted of being a felon in possession of a handgun and Christopher had previously been convicted of first degree burglary.
2
A predicate offense may include an offense the defendant committed on a separate occasion. (People v. Tran (2011) 51 Cal.4th 1040, 1046 (Tran).) Like other gang evidence and evidence in general, evidence of predicate offenses is admissible if it is relevant, not more prejudicial than probative, and not cumulative. (Evid. Code, § 352; People v. Albarran (2007) 149 Cal.App.4th 214, 223.) "[T]he decision on whether evidence, including gang evidence, is relevant, not unduly prejudicial and thus admissible, rests within the discretion of the trial court. [Citation.] 'Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" [Citation.]' [Citations.] It is appellant's burden on appeal to establish an abuse of discretion and prejudice." (Albarran, supra, at pp. 224-225.)
Although evidence a defendant committed an offense on a separate occasion is inherently prejudicial, exclusion of the evidence is required only if the prejudicial effect of the evidence substantially outweighs its probative value. (Tran, supra, 51 Cal.4th at p. 1047.) The probative value of evidence of a defendant's separate gang-related offense is generally increased because it supplies direct proof of several ultimate facts necessary for a conviction: the existence of a predicate offense, the defendant's active participation in a criminal street gang, and the defendant's knowledge the gang engaged in a pattern of criminal gang activity. (Id. at p. 1048.) Moreover, because of the prosecution's burden of proof, the jury will inevitably and necessarily receive evidence the defendant actively supported the gang's criminal activities. Consequently, evidence of the defendant's personal involvement in the gang's criminal activities generally will not increase the inherent prejudicial effect of the evidence enough to "create 'an intolerable "risk to the fairness of the reliability of the outcome." ' " (Ibid.)
Nonetheless, appellants contend the court should have excluded evidence of their prior offenses as cumulative because the prosecution had evidence of other predicate offenses it could use to meet its burden of proof. "The prejudicial effect of evidence defendant committed a separate offense may, of course, outweigh its probative value if it is merely cumulative regarding an issue not reasonably subject to dispute." (Tran, supra, 51 Cal.4th at p. 1049.) However, the prosecution's ability "to develop evidence of predicate offenses committed by other gang members ... does not require exclusion of evidence of a defendant's own separate offenses to show a pattern of criminal gang activity." (Ibid.) "[T]he prosecution cannot be compelled to ' "present its case in the sanitized fashion suggested by the defense." ' [Citation.] When the evidence has probative value, and the potential for prejudice resulting from its admission is within tolerable limits, it is not unduly prejudicial and its admission is not an abuse of discretion." (Ibid.)
Here, the evidence of appellants' prior convictions was probative on the issues of whether they actively participated in the gang and whether they knew the gang engaged in a pattern of criminal gang activity. The convictions occurred several years before appellants' arrests on the charges in this case. This enhanced the probative value of the evidence because the evidence came from sources uninfluenced by knowledge of the charges in this case. The evidence of appellants' prior convictions was not so cumulative as to lack probative value because the entirety of the predicate act evidence consisted of three prior offenses by other gang members and one prior offense by each appellant. (Tran, supra, 51 Cal.App.4th at p. 1050.)
The evidence of appellants' prior convictions posed little danger of confusing the issues before the jury because the jury did not have to decide whether appellants had committed the prior offenses and there was no risk the jury would punish the appellants in this case for escaping punishment in the prior cases. The evidence of appellants' prior convictions was less inflammatory than the evidence of shooting in this case, as there was no indication appellants' prior convictions involved threats or shootings by them. Accordingly, the probative value of the evidence outweighed its prejudicial effect and the court did not abuse its discretion in admitting the evidence. (Tran, supra, 51 Cal.App.4th at p. 1050.)
E
Appellants contend we must reverse the true findings on the gang benefit enhancements allegations because there was insufficient evidence the shooting was a gang shooting. "In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
To establish the truth of a gang benefit enhancement allegation under section 186.22, subdivision (b)(1), the prosecution must prove "first, that the defendant committed a felony (a) for the benefit of, (b) at the direction of, or (c) in association with a criminal street gang; and second, that in connection with the felony, the defendant harbored the specific intent to (a) promote, (b) further, or (c) assist in any criminal conduct by gang members." (In re Daniel C. (2011) 195 Cal.App.4th 1350, 1358; accord, Gardeley, supra, 14 Cal.4th at pp. 616-617.) The prosecution may meet its burden of proof by presenting testimony from a gang expert. (See Albillar, supra, 51 Cal.4th at pp. 60-61, 63.)
Regarding the first prong, the record supports a finding appellants relied on their common gang membership and the apparatus of the gang to commit the shooting. (Albillar, supra, 51 Cal.4th at p. 60.) The gang expert testified 12th Street gang members commonly commit crimes with other gang members both to prove the crimes occurred and to demonstrate their willingness to commit crimes. The crimes and other acts of violence garner respect for the gang by instilling fear in the community through a demonstration of the gang's force and power. The crimes and acts of violence also deter members of the community from cooperating with law enforcement. In response to a hypothetical question based on the facts of the shooting, the expert opined the shooting benefitted the gang because it enforced the gang's prohibition against cooperation with law enforcement and conveyed to the community that people who betray the gang or cooperate with law enforcement will be killed. "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of ... a[] criminal street gang' within the meaning of section 186.22[, subd.] (b)(1)." (Id., at p. 63.)
Regarding the second prong, there is substantial evidence appellants are 12th Street gang members and they intended to and committed the shooting in concert. "[I]f substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Albillar, supra, 51 Cal.4th at p. 68.)
F
Finally, the parties have identified multiple sentencing errors requiring correction.
1
a
As to count 1, the court sentenced Joseph to an indeterminate term of seven years to life, plus 20 years for the firearm enhancement, and 10 years for the gang benefit enhancement. As to count 2, the court sentenced him to a determinate term of one year, plus one year four months for the firearm enhancement, and one year eight months for the gang benefit enhancement. However, the court stayed the sentence under section 654. As to count 3, the court sentenced him to a consecutive determinate term of four years, plus 10 years for the firearm enhancement and five years for the gang benefit enhancement. As to counts 4 and 6, the court sentenced him to consecutive determinate terms of eight months each. The court imposed but stayed the punishment for his three prior prison commitment convictions.
b
As to count 1, the court sentenced Christopher to an indeterminate term of seven years to life, plus 20 years for the gang benefit enhancement, and 10 years for the firearm enhancement. As to count 2, the court sentenced him to an indeterminate term of 25 years to life but stayed the sentence under section 654. As to count 3, the court sentenced him to a consecutive indeterminate term of 25 years to life. As to count 5, the court sentenced him to a consecutive determinate term of three years, doubled to six years for a prior strike conviction, and, as to count 6, the court sentenced him to a consecutive determinate term of eight months, doubled to one year four months for a prior strike conviction. The court imposed but stayed the punishment for his two prior serious felony convictions and the prior prison commitment conviction.
2
Appellants contend the court should have stayed the punishment for their active gang participation convictions under section 654. The People concede this point and we agree.
Since section 654 prohibits multiple punishment for a single act or omission, it prohibits a court from punishing a defendant for active gang participation where the only evidence of the participation was the commission of an offense for which the defendant was also convicted and sentenced. (People v. Mesa (2012) 54 Cal.4th 191, 195.) Here, appellants' convictions for active gang participation were based on their commission of the shooting offenses. Because appellants were convicted and sentenced for the shooting offenses, the court was required to stay their sentences for active gang participation under section 654.
3
Appellants next contend we should remand the matter to allow the court to exercise its discretion under recent amendments to sections 12022.5 and 12022.53. The amendments provide: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§§ 12022.5, subd. (c); 12022.53, subd. (h).)
The People do not dispute the amendments apply to this case because the case is not final. (People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082.) The People also do not object to the requested remand, although they do not believe the court will exercise its discretion in appellants' favor. We agree a remand to allow the court an opportunity to exercise its newly obtained discretion is appropriate, particularly since the court must conduct a new sentencing hearing for other reasons as well.
4
The People contend appellants' sentences for their prior prison commitment convictions were unauthorized because the court did not have the authority to stay the sentences. Appellants do not dispute this contention and we agree.
If a prior prison commitment conviction allegation is found true, the court must either impose a one-year sentence enhancement or strike the finding or the sentence for the finding under section 1385. The court may not stay the sentence for the finding, as occurred here. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Garcia (2008) 167 Cal.App.4th 1550, 1561.)
5
Joseph contends the court violated section 1170.1, subdivision (f), by imposing a sentence for both the firearm enhancement and the gang benefit enhancement in count 3. The People concede this point. The People further concede Joseph's sentence for count 2 contained the same error and should be corrected even though the court stayed the sentence for count 2 under section 654. We agree.
Section 1170.1, subdivision (f), provides in part: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense." This limitation applies to a gang benefit enhancement where, as here, the enhancement is based on the defendant's firearm use. (People v. Le (2015) 61 Cal.4th 416, 419-420, 425-426; People v. Rodriguez (2009) 47 Cal.4th 501, 508-509.)
6
The People contend Joseph's sentence for the gang benefit enhancement in count 1 is unauthorized because his attempted murder conviction is subject to an indeterminate life term, which required the court to impose a 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5), instead of a 10-year sentence enhancement under section 186.22, subdivision (b)(1)(C). Joseph does dispute this point and we agree.
"Section 186.22, subdivision (b)(1) provides for an enhancement if a defendant is convicted of a felony committed for the benefit of, at the direction of, or in association with, any criminal street gang (with the specific intent to promote, further, or assist in criminal conduct by gang members). If the felony is a violent felony, the enhancement is an additional 10 years in state prison. (§ 186.22, subd. (b)(1)(C).) However, if the defendant is convicted of a felony punishable by life imprisonment, the enhancement provides that the defendant shall not be paroled until a minimum of 15 years has been served. (§ 186.22, subd. (b)(5).) The determinate term enhancement provided for in subdivision (b)(1)(C) is to be applied only when the conviction is of a violent offense for which a determinate term is proscribed; if the conviction is of a crime for which an indeterminate term of life in prison is proscribed, the limitation upon parole eligibility provided for in subdivision (b)(5) is applicable. If the parole limitation of subdivision (b)(5) is applicable, the 10-year enhancement is not." (People v. Fiu (2008) 165 Cal.App.4th 360, 390, citing People v. Lopez (2005) 34 Cal.4th 1002, 1007.)
7
The People next contend Christopher's sentences for counts 1 and 5 were unauthorized because the court failed to sentence him as a third-strike offender. Christopher does not dispute he did not receive third-strike sentences for these counts. Rather, he contends the court's sentences reflect the court's implied intent to exercise its discretion under section 1385 to dismiss one of the prior strike conviction findings or its punishment as to these counts.
While the court has this discretion, the court cannot exercise this discretion without stating its reasons for doing so in the court's minutes, which the court did not do in this case. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-531.) Consequently, any intent by the court to dismiss a prior strike conviction finding or its punishment was ineffective. (Id. at p. 532; People v. Bonnetta (2009) 46 Cal.4th 143, 149-150, 154.) On remand, the court will have an opportunity to appropriately express this intent or to impose sentences compliant with the Three Strikes law.
8
The People similarly contend Christopher's sentences for counts 2 and 3 were unauthorized because, although the court imposed a third-strike sentence, the court failed to select and impose the greatest minimum term as required by the Three Strikes law. (§ 667, subd. (e)(2)(A).) Christopher disputes this contention, asserting the court properly sentenced him to a term of 25 years to life for these counts. We agree.
Subject to exceptions not applicable here, section 667, subdivision (e)(2)(A), provides: "[I]f a defendant has two or more prior [strike convictions] 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 greatest of: [¶] (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious and/or violent felony convictions. [¶] (ii) Imprisonment in the state prison for 25 years. [¶] (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." --------
The Three Strikes law provides for an indeterminate sentence with the minimum term calculated as the greatest of three options:
1. Triple the term "otherwise provided as punishment" for the offense (§ 667, subd. (e)(2)(A)(i)); People v. Acosta (2002) 29 Cal.4th 105, 112-118 (Acosta); People v. Dotson (1997) 16 Cal.4th 547, 552 (Dotson); People v. Keelen (1998) 62 Cal.App.4th 813, 815, 820);
2. 25 years (§ 667, subd. (e)(2)(A)(ii); Dotson, supra, 16 Cal.4th at p. 552); or
3. The term that would otherwise apply to the crime in the absence of the Three Strikes law plus applicable enhancements (§ 667, subd. (e)(2)(A)(iii); Acosta, supra, 29 Cal.4th at pp. 112-118; Dotson, supra, 16 Cal. 4th at p. 553).
Under the first option, the term "otherwise provided for punishment" for assault with a firearm is two, three, or four years. (§ 245, subd. (a)(2).) Depending on which of these terms the court selected, the minimum term would be six, nine, or 12 years.
Under the second option, the minimum term would be 25 years.
Under the third option, the components of the minimum term would be the base term of two, three, or four years for the offense; plus three, four, or 10 years for the firearm enhancement; plus 10 years for the two serious prior felony convictions; plus one year for the prior prison commitment conviction. Depending on the court's discretionary choices, the minimum term would range from a low of 12 years (if the court selected the lower term for the offense and struck the firearm and prior prison conviction enhancements) to a high of 25 years (if the court did not strike any enhancements and imposed the upper term for the offense and the firearm enhancement). Thus, under either option two or option three, the greatest minimum term is 25 years.
The People argue that because Christopher is subject to a life term under the Three Strikes law, the minimum term under the first option is 45 years, which is triple the 15-year parole ineligibility period for life terms subject to a gang benefit enhancement (§ 186.22, subd. (b)(5)). However, the rule allowing for the tripling of a minimum parole ineligibility period under the first option only applies where the offense is subject to a life term under a statute other than the Three Strikes law. (See Acosta, supra, 29 Cal.4th at p. 118.) The People's calculation of the minimum term under the third option is faulty for the same reason.
9
Finally, the People contend Christopher's sentences for the prior serious felony conviction findings were unauthorized because the court stayed the sentences, rather than imposing them. Christopher does not dispute this contention and we agree.
If a prior serious felony conviction allegation is found true, the court must impose a five-year sentence enhancement. (People v. Turner (1998) 67 Cal.App.4th 1258, 1269; § 1385, subd. (b).) The court has no discretion to strike or stay the sentence enhancement. (People v. Askey (1996) 49 Cal.App.4th 381, 389.)
IV
DISPOSITION
Appellants' sentences are vacated and the matter is remanded for further sentencing proceedings consistent with this opinion. In all other respects, the judgments are affirmed.
MCCONNELL, P. J. WE CONCUR: HUFFMAN, J. O'ROURKE, J.