Opinion
D058183
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. JOSE EDUARDO HERRERA et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF128477)
APPEAL from a judgment of the Superior Court of Riverside County, W. Charles Morgan, Judge. Affirmed in part; reversed in part and remanded with directions.
The jury convicted Jose Eduardo Herrera, Gabriel Herrera, and Christopher Lowary of two counts of attempted murder of Brittin Fisher (Pen. Code, §664/187, counts 7 & 12); attempted murder of James Hicks §664/187, count 8); attempted murder of Sean Jones (§664/187, count 9); discharging a firearm at an inhabited vehicle (§ 246, count 10); willfully and maliciously discharging a firearm from a motor vehicle (§ 12034, subd. (d), count 13); and two counts of willfully discharging a firearm at an inhabited dwelling (§ 246, counts 14 & 15).
Statutory references are to the Penal Code unless otherwise specified.
The jury also convicted Jose and Gabriel of two counts of actively participating in a criminal street gang (§186, subd. (a), counts 11 & 16). Finally, the jury convicted Jose of assault with a deadly weapon (§ 245, subd. (a), count 5).
In addition, the jury found the following enhancements: (1) the attempted murders were willful, deliberate and premeditated (counts 7-9, 12 as to all appellants); (2) Jose personally and intentionally discharged a firearm within the meaning of sections 12022.53, subdivision (c) and 1192.7, subdivision (c)(8) (counts 7-9); (3) each appellant was a principal and at least one principal did personally and intentionally discharge a firearm, within the meaning of section 12022.53, subdivisions (c) and (e) (counts 7-10); (4) the crime was committed for the benefit of or at the direction of or in association with a criminal street gang, within the meaning of section 186.22, subdivision (b) (counts 7-10, 12-15 as to all appellants); (5) Jose, Gabriel, and Lowary each personally and intentionally discharged a firearm causing great bodily injury or death within the meaning of sections 12022.53, subdivision (d) and 1192.7, subdivision (c)(8) (count 10 as to Joseand Lowary, counts 12 & 13 as to Gabriel); (6) each appellant personally used a firearm within the meaning of sections 667 and 1192.7, subdivision (c)(8) (count 10 as to Jose and Lowary, counts 14 & 15 as to Gabriel); and (7) each appellant was a principal and at least one principal did personally and intentionally discharge a firearm and proximately cause great bodily injury or death to another person, within the meaning of Penal Code section 12022.53, subdivisions (d) and (e) (counts 12 & 13).
The reporter's transcript indicates the jury found true an enhancement as to Jose under section 12022.53, subdivision (b) and section 1192.7, subdivision (c)(8). No party has raised an issue as to any enhancement under section 12022.53, subdivision (b), and this enhancement is not reflected anywhere else in the record and is inconsistent with the jury's written finding in the clerk's transcript, the briefs in this matter, and the other true findings as to Lowary and Gabriel. As such, we assume the court reporter inadvertently transcribed "b" instead of "d."
Again, there appears to be a discrepancy between the reporter's transcript and the rest of the record. The reporter's transcript states the jury found an enhancement true under section 12022.53, subdivisions (b) and (e) on count 13 as to all appellants. This is inconsistent with the jury's written findings contained in the clerk's transcript and the parties' briefs. Therefore, we assume the court reporter inadvertently transcribed a "b" instead of a "d."
The court sentenced Jose to prison for 102 years plus four consecutive life terms. It sentenced Gabriel to prison for 86 years plus four consecutive life terms. The court also sentenced Lowary to prison for 83 years plus four consecutive life terms. Each of the appellants' sentences included multiple enhancements, most of which are not challenged here. Therefore, we are only concerned with each of the appellant's sentence enhancements on count 8 under section 12022.53, subdivision (d), Lowary's sentence enhancement on count 10 under section 12022.53, subdivision (d), Jose's and Lowary's respective sentence enhancements on count 13 under section 186.22, and Lowary's sentence under section 12034, subdivision (d). As such, we refrain from reciting the remaining components of any of the appellants' sentences.
As we discuss in more detail below, the court sentenced appellants under section 12022.53, subdivision (d), although the jury made no such finding.
Section 12034 was repealed on January 1, 2012, but its provisions were continued without substantive change in new Title 2 (commencing with section 12001), entitled Sentence Enhancements. Because Lowary was sentenced under section 12034 and the substance of section 12034 has not changed, we refer to section 12034 in this opinion for clarity and convenience.
The appellants raise a variety of issues on appeal. Jose contends the firearm sentence enhancements imposed on counts 8 and 10 should be reversed because they were not properly plead or proven; and the court erred in imposing a sentence enhancement under both sections 12022.53and 186.22 for count 13.
Gabriel asserts his sentence enhancement under section 12022.53, subdivision (d) should be stricken because the jury did not find the firearm use allegation true.
Lowary argues ineffective assistance of counsel because his trial counsel failed to object to the prosecution's misstatements of law; the sentence enhancement applied in count 8 of 25 years to life for personal use of a firearm, under section 12022.53, subdivision (d) should be stricken because the jury made no true finding of that allegation; and the conviction on count 13 should be reversed because the jury was improperly instructed and the trial court improperly imposed the sentence.
Both Gabriel and Lowary claim sufficient evidence does not support the gang enhancements. Also, all appellants insist the court erred in refusing to instruct the jury on the lesser included offense of a violation of section 246.3, subdivision (a) for counts 14 and 15. Finally, each appellant joins in the arguments of each other appellant to the extent that they would benefit thereby. (Cal. Rules of Court, rule 8.200(a)(5).)
We reverse the appellants' convictions under counts 14 and 15 and conclude the court improperly enhanced each appellant's sentence on count 8 under section 12022.53, subdivision (c) and as to Lowary under the same subdivision on count 10. In addition, we determine the court improperly sentenced Jose and Lowary on count 13 under the enhancement in section 186.22. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Background and the First Altercation
This case arises from escalating violence between Fisher on the one hand and a combination of defendants on the other (Jose, Gabriel, Lowary, Raymond Mendoza, and Jose Acuna). Jose and Gabriel are brothers. Lowary lived two houses away from the Herreras' house on Theresa Street in Moreno Valley. Mendoza lived across the street from the Herreras. Jose, Gabriel, Lowary, Mendoza, and Acuna were good friends. They got together almost every day, and smoked marijuana, either at the park or the Herreras' house.
Like appellants, Acuna and Mendoza were charged with multiple counts relating to the various incidents involving Fisher. Mendoza plead guilty to one count of attempted murder (§§ 664/187) and admitted as true he was personally armed with a deadly weapon during the commission of the offense (§ 12022, subd. (a)(1)). After a mistrial, Acuna plead guilty to one count of attempted murder (§§ 664/187) and admitted as true the crime was committed for the benefit of or at the direction of or in association with a criminal street gang, within the meaning of section 186.22, subdivision (b). Both Mendoza and Acuna testified during the People's case-in-chief.
On the first day Brittin Fisher met Jose at high school, in 2002 or 2003, Jose called Brittin Fisher a racial epithet. They then got into a fistfight. Fisher won the fight, which was witnessed by other students. Jose told Mendoza that prior to the fight, Fisher and Jose each said things about their gangs. After the fight, Jose said to Fisher, "I'm gonna kill you."
The Shovel Incident (Counts 1-3)
Based upon this incident, the People charged Gabriel and Jose with assault with a deadly weapon (§ 245, subd.(a)(1), count 1), brandishing a firearm (§ 417, subd. (a)(2), count 2), and actively participating in a street gang (§ 186.22, subd. (a), count 3). The jury found Gabriel and Jose not guilty on these counts.
On October 1, 2005, Fisher was walking home from school with some friends when he saw Gabriel and Jose in a green Malibu. The windows were down, and Jose, who was in the front passenger seat, threw a hand shovel at Fisher. The shovel barely missed Fisher's face. It appeared that Jose was throwing up hand signs, or "gang banging." The car then turned around, and approached Fisher again, and the driver was "yelling stuff" from the car.
The Ditch Party (Counts 4-6)
On December 13, 2005, a high school student had a "ditch party" (a party where students go to a party instead of school). Sean Jones drove his car to the party with his friends, Fisher and James Hicks. Jose drove Acuna to the party in Jose's mother's van. After a few hours of hanging out, drinking, and listening to music, Acuna and Jose left the party because they heard the "cops were coming." Fisher and Jones also decided to leave the party when they saw Jose.
Jose drove the van down the cul de sac where Jones had parked his car and turned around. As Fisher was getting into the back seat of Jones's car, on the passenger side,
Jose accelerated directly towards Fisher. Fisher jumped out of the way, on top of Jones's car. The van's side mirror hit Fisher's right knee. The passenger side of the van hit the back passenger door of Jones's car. Jose then accelerated and sped through the residential area. Fisher and his friends ran after the van. Jose later told Mendoza that he almost ran Fisher down at the ditch party with the van.
Acuna and Fisher testified Jose was the driver, but Jones testified Gabriel was the driver.
The January 30, 2006 Shooting (Counts 7-11)
On January 30, 2006, Fisher and Hicks were walking down the street after school to meet up with Jones, who was at Jack in the Box. Fisher noticed Jose, Gabriel, and Lowary in the Malibu with its windows down. Jose, who was in the backseat, was holding a black gun, which he showed to Fisher. Fisher called Jones and asked him to pick him up, which he did about three to five minutes later. Jones drove back to Jack in the Box, and later got gas at the neighboring 7-Eleven. Jones saw the occupants of the Malibu making gang signs. The Malibu was parked across the street at Little Caesar's.
Jones, Hicks, and Fisher were on their way to a football game. Jones was driving, Fisher was in the front passenger seat, and Hicks was in the backseat. After Jones pulled his car out of the 7-Eleven parking lot, the Malibu left the Little Caesar's parking lot and pulled up behind Jones's car. Jose then started shooting at Jones's car through the open window. After the first shot rang out, Jones turned left. The shots continued. Jones's car had bullet holes in it, and the windows were broken, including the back passenger window where Hicks had been sitting. Hicks was shot in the right shoulder.
Vandalism of Gabriel's Malibu
Before February 6, 2006, Mendoza saw two African-Americans in a car drive onto Theresa Street. He believed both people to be members of the Hypnotic Minds party crew. They got out of the car, and Mendoza heard a loud noise that sounded like shattering glass. The next day, the Malibu's window was broken. Mendoza told Gabriel what he had witnessed, and he believed the men to be from Hypnotic Minds. Fisher and Jones both testified, however, that they had never been on Theresa Street and did not break Gabriel's car's window.
The February 6, 2006 Shooting (Counts 12-16)
On February 6, 2006, Acuna, Mendoza, and Lowary went to the Herreras' house about 10:00 or 11:00 a.m. and smoked marijuana with Gabriel while Jose was at school. Gabriel drove all of them in the Malibu to pick up Jose from high school. They planned to pick up Jose, and then go to another high school to look for old friends and to "find someone slipping" (unaware or off guard).
After picking up Jose at school, they drove back to the Herreras' house because Gabriel wanted to switch cars. Gabriel and Jose wanted to go find Fisher and catch him "slipping." Gabriel, Jose, Lowary, Mendoza, and Acuna walked over to Lowary's house and got into Lowary's pick-up truck. Lowary was driving, Gabriel was in the passenger seat, and the other three were in the back seat.
After not finding Fisher at his school, Lowary drove toward Fisher's house. As the truck neared Fisher's house, Lowary slowed down. The passenger side window was down. Jose told the others he saw Fisher, who was walking home from school. Fisher was walking in the same direction Lowary was driving. Fisher looked back in the direction of the truck, then started running toward his house because he saw someone hanging out of the window. Fisher ran through the front yards of the houses on the street. The truck caught up to Fisher, and was about 22 feet away from him. Fisher testified that the truck passed him and was ahead of him on the street. Gabriel pulled a black gun that looked like a rifle out from under the front passenger seat and started shooting. Gabriel's head and part of his body were sticking out of the open window.!
Acuna testified that the truck was a certain distance away from Fisher using landmarks in the courtroom. Based upon the landmarks Acuna used, the court told the jury the distance was 22 feet.
Acuna and Mendoza both testified that Gabriel was in the passenger seat, and was the shooter. Fisher testified Jose was the shooter. Lowary also testified Gabriel was the shooter.
After the first shot, Fisher fell to the ground on the front yard of his neighbor's house. The first shot hit Fisher in his lower back. After Fisher was down on the ground, at least two more shots were fired. Fisher put his left hand up to cover his head and got hit in the forearm. He also was hit in the chest. Fisher suffered permanent injuries and is confined to a wheelchair.
Acuna, Jose, and Mendoza all ducked when Gabriel started shooting. Gabriel told Lowary to drive away, and Lowary quickly drove away.
At trial, the parties stipulated that on February 6, 2006, Eva Flanderka lived at 15212 Norton Lane in Moreno Valley. She was present in the home during the afternoon hours. She was contacted by the Moreno Valley Police Department and was shown a small hole in her garage door that was not present in the garage door prior to February 6, 2006.
The parties also stipulated that on February 6, 2006, the Fisher family resided at 15224 Norton Lane in Moreno Valley. Fisher's father, mother, and sister were present in the home at the time of the shooting. A bullet strike was subsequently located in their garage door and a bullet was recovered from inside the garage. The bullet strike was not there prior to February 6, 2006.
Gang Evidence
The parties stipulated that Pecan Street is a criminal street gang within the meaning of section 186.22. Jose and Gabriel were members of Pecan Street. Mendoza was a member of the North Side Redlands gang. Acuna and Lowary had never been in a gang. Acuna believed Fisher was in a gang called "Sex Cash."
Fisher said he was friends with members of "Sex Cash" and "Unknown Mafia," but did not admit to being a member in any gang. Fisher was involved with a party crew named Hypnotic Minds. A party crew consists of people who throw parties.
Riverside County Sheriff Deputy George Reyes testified as a gang expert for the People. He defined criminal street gangs, rats or snitches, and monikers. He explained the difference between a gang member and an associate, how gang members claim their membership, what it means to throw up gang signs, the definition of party crew, what it meant in the gang subculture to "get caught slipping" (being in a vulnerable position not expecting anything to happen), what respect means in a gang context, that gang members use violence to instill fear, and the repercussions for claiming a gang if you are not a member of that gang.
Reyes testified that Pecan Street began as a gang in 2004 by some members who lived on Pecan Street. Reyes believed Gabriel and Jose were members of Pecan Street. Reyes did not know Lowary to be an active member of Pecan Street, but opined he was an associate of Pecan Street from October 2005 to February 2006 based on his association with Jose and Gabriel. Reyes identified Mendoza as a member of South Side Redlands, but not Pecan Street. He also stated Acuna was not a member of Pecan Street, but associated with them.
Reyes testified that Hypnotic Minds was a party crew in Moreno Valley consisting of young males who were African-American, Hispanic and Caucasian. It was sometimes considered a rival of gangs.
The prosecution provided Reyes with a hypothetical mirroring the facts of the fist fight at school and the shovel incident, and Reyes opined that the shovel incident could be for the benefit of the gang because it was in retaliation for the fist fight. Reyes reasoned that Jose was disrespected pretty significantly in losing the fist fight, so to regain respect he had to do something of equal or greater significance to Fisher. Reyes testified the retaliation was not only for Jose, but for the other gang members and the gang's reputation.
Based on a hypothetical mirroring the facts of the ditch party incident, Reyes testified the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang to further, promote, or assist in criminal conduct by gang members because it was a continuation of the previous dispute, and until a gang member feels satisfied he has gained his respect back, he will continue to engage in this type of conduct, and the violence will increase.
Based on a hypothetical mirroring the facts of the January 30, 2006 shooting, Reyes opined it was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members. Reyes opined the shooting was a continued progression of the gang's violence, and "to further the respect [the gang] demand[ed]." Reyes further testified the shooting was in association with a gang because there were two active members from the same gang participating, even though they were brothers.
In a hypothetical mirroring the facts of the February 6, 2006 shooting, Reyes opined this shooting was committed for the benefit of, or in association with a criminal street gang. The crime progressed to become more organized, in terms of exchanging cars, bringing a firearm, and waiting for Fisher.
Reyes also testified the non-Pecan Street gang members in Lowary's truck during the shooting (Lowary, Mendoza, and Acuna) assisted the Pecan Street gang because there is power in numbers, and they provided back up. He also opined that if a party member crew vandalized something at the home of a gang member, it would be perceived as being disrespectful, particularly because at the home, it involves the gang's other family members and is more personal. Further, Reyes testified a gang would seek retribution for the vandalism.
Defense
Lowary testified that he knew the Herreras for 13 or 14 years from the neighborhood. He was aware the Herreras were members of Pecan Street, but testified he did not do "any incidents of any kind for the benefit or at the direction of Pecan Street."
On cross-examination, Lowary confirmed the details of the January 30, 2006 and February 6, 2006 shootings, adding some additional facts. Lowary explained that on January 30, 2006, he, Jose, and Gabriel went looking for Fisher. They planned to shoot Fisher. Lowary admitted he had "a desire in his heart" to kill Fisher.
According to Lowary, on January 30, 2006, he took the first two shots at Jones's car, and then Jose began shooting. Lowary believed Jose shot eight or nine bullets, emptying almost the entire clip. Lowary testified there was return fire from the other car. When Lowary took aim, he tried to steady the gun and aim at Fisher. Jose and Gabriel put their hands up, about shoulder level or a little lower, and formed the shape of a "P" with their hands. Lowary further stated they all understood they did not want to hurt other people, and they did not intend to shoot Hicks. They heard they had missed Fisher, so they waited awhile before they tried again to kill him.
Lowary was "very, very high" on February 6, 2006. Gabriel and Lowary discussed shooting Fisher prior to picking Jose up from school, and again after they returned to the Herreras' house. Lowary had a gun in his possession, and gave it to Gabriel, who put it under the front passenger seat. Lowary confirmed that he drove his truck to find Fisher, although he claimed they dropped Acuna off prior to the shooting because they were going to kill Fisher. Lowary explained his intent was to assist in shooting Fisher.
Lowary slowed down when he saw Fisher to give Gabriel a good shot. After Gabriel began shooting at Fisher, Lowary saw Fisher put his arm up after he fell to the ground. Gabriel continued to fire at Fisher while he was on the ground.
Lowary admitted that he had associated with other members of Pecan Street. He claimed the shootings had nothing to do with the gang; but were a means to protect the Herreras, their family, and their street. He trusted Gabriel and Jose and was willing to back them up and protect them.
DISCUSSION
I
LOWARY'S TRIAL COUNSEL WAS NOT INEFFECTIVE
Lowary argues his counsel was ineffective within the meaning of the Sixth Amendment for failing to object to the prosecution's purported misstatement of the law during closing argument. Specifically, Lowary insists the prosecution misstated the law regarding the "kill zone" theory of concurrent intent. Because the prosecution did not misstate the law, we conclude Lowary has not met his burden to establish ineffective counsel.
A. Background
Counts 7 through 9 concern Lowary and Jose shooting from a car at another car in which Fisher, Jones, and Hicks were sitting. Based upon this shooting, the People charged appellants with attempted murder of three individuals. Lowary admits he intended to kill Fisher, but not Hicks or Jones.
To establish Lowary's intent to kill Hicks and Jones, the People offered the "kill zone" theory of concurrent intent: appellants intended to kill Fisher by killing everyone else in the car. During closing argument, the People argued:
"There's something in the law called the kill zone or the zone of danger. And in this case, that danger zone is Sean Jones' vehicle and everyone inside the vehicle. Because the law says that when you intend to kill and you're so intent on killing, you intend to kill anyone inside of that zone or inside of that target area. You're liable for everyone inside of that target zone or target area. Because when you shoot from a moving vehicle at a moving vehicle, and you shoot multiple times -- you saw the bullet holes in Sean Jones' car, you saw the window that was burst out there -- you're liable for each of those people that you may hit or may not hit. In this case, as you know, Mr. Hicks is shot and the other two are missed, Brittin Fisher being the intended target."In addition, the court instructed the jury as follows:
"A person may intend to kill a specific victim or victims, and at the same time intend to kill everyone in a particular zone of harm called the kill zone. In order to convict the defendant of the attempted murder of James Hicks and Sean Jones, the People must prove that the defendant not only intended to kill Brittin Fisher, but also either intended to kill Sean -- James Hicks and Sean Jones or intended to kill everyone in the kill zone. If you have a reasonable doubt whether the defendant intended to kill James Hicks or Sean Jones or intended to kill Brittin Fisher by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of James Hicks and Sean Jones."Lowary concedes the jury was properly instructed regarding the "kill zone" theory of concurrent intent.
B. Analysis
To show that trial counsel's performance was constitutionally defective, an appellant must prove: (1) counsel's performance fell below the standard of reasonableness, and (2) the "deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Competency is presumed unless the record affirmatively excludes a rational basis for trial counsel's choice. (People v. Ray (1996) 13 Cal.4th 313, 349; People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
Lowary argues two of his four convictions of attempted murder of Hicks and Jones (counts 8 & 9) should be reversed because his trial counsel failed to object to the prosecutor's misstatement of the law regarding the "kill zone" during closing argument.
Our high court addressed the "kill zone" theory in People v. Bland (2002) 28 Cal.4th 313, 330 (Bland):
" 'When the defendant escalate[s] his mode of attack from a single bullet aimed at A's head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death. The defendant's intent need not be transferred from A to B, because although the defendant's goal was to kill A, his intent to kill B was also direct; it was concurrent with his intent to kill A. Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.' "Thus, the kill zone theory applies if " 'the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity.' " (Id. at p. 329.)
Lowary does not challenge the definition of "kill zone" in Bland, supra, 28 Cal.4th 313, or claim it does not apply in this case. Instead, he claims this case is the same as People v. Anzalone (2006) 141 Cal.App.4th 380 (Anzalone). We disagree.
In Anzalone, we concluded the appellant's counsel provided ineffective assistance when he, among other things, failed to object to the prosecutor's misstatement of concurrent intent. (Anzalone, supra, 141 Cal.App.4th at pp. 395-396.) The defendant was charged with four counts of attempted murder based upon his firing of two shots toward four victims. (Id. at p. 390.) The trial court in Anzalone did not provide the jury with a concurrent intent instruction. (Ibid.) However, the prosecutor told the jury that two shots could amount to four attempted murders because of " 'something called the zone of danger.' " (Id. at p. 392.) The prosecutor explained that any time people are within this zone of danger, the indiscriminate firing of a shot at those people amounts to an attempted murder of everyone in the group. (Ibid.) We determined this was an incorrect statement of the law. The prosecutor failed to explain what constitutes a zone of danger or how the zone relates to the element of intent. Further, he did not tell the jury the zone is defined by the nature and the scope of the attack and the attack must reasonably allow the inference that the defendant intended to kill some primary victim by killing everyone in that primary victim's vicinity. (Ibid.) The prosecutor's explanation of concurrent intent was not only incorrect, but was misleading as well. (Id. at pp. 392-393.)
Anzalone is markedly different from the instant matter. Here, as Lowary admits, the court properly instructed the jury regarding concurrent intent. Thus, the People were not totally left to define that legal concept for the jury. (See Anzalone, supra, 141 Cal.App.4th at p. 392.) Moreover, we are not troubled with the People's description of the "kill zone" as we were in Anzalone. Here, most importantly, the People, in describing the "kill zone" did not diminish their burden of proving intent. Instead, consistent with the jury instructions, they stated Lowary had to intend to kill everyone in the car. Thus, contrary to Anzalone, the People did not tell the jury that merely indiscriminately firing into a group of people, absent any proof of intent to kill each of those people, was sufficient to convict for attempted murder. There was nothing misleading about the People's description of the "kill zone" during closing argument especially in light of the concurrent intent jury instruction.
In short, we are satisfied the People did not misstate the law of concurrent intent during closing argument. In addition, the court correctly instructed the jury on concurrent intent. As such, it was not ineffective assistance for Lowary's trial attorney to fail to object to the People's discussion of concurrent intent during closing argument. There simply was no reason for Lowary's counsel to object. (See People v. Freeman (1994) 8 Cal.4th 450, 509.)
II
SUBSTANTIAL EVIDENCE SUPPORTS THE
JURY'S GANG ENHANCEMENT FINDINGS
The jury found the appellants had committed the acts alleged in counts 7 through 10 and 12 through 15 "for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in any criminal conduct by gang members under section 182.22, subdivision (b)(1)." Gabriel and Lowary assert the People failed to present sufficient evidence to establish the gang enhancements. They maintain the crimes were the result of a personal dispute, which began when Fisher beat Jose in a fist fight. Lowary also asserts the appellants intended to kill Fisher to protect their neighborhood, and their actions were unrelated to any gang.
A. Standard of Review
We review the sufficiency of the evidence to support enhancement allegations under the same standard we apply to a conviction. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Duran (2002) 97 Cal.App.4th 1448, 1456-1457.) 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. (People v. Steele (2002) 27 Cal.4th 1230, 1249 (Steele).) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We ask whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the allegations to be true beyond a reasonable doubt. (See Jackson v. Virginia (1979) 443 U.S. 307, 319.)
B. Analysis
A gang enhancement attaches when felonious conduct is "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 any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).) The first prong of section 186.22, subdivision (b)(1) is straightforward, requiring that the crime be "gang related" in the sense of being for the benefit of, at the direction of, or in association with a gang. (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar.) The second, or specific intent, prong of the statute requires "only the specific intent to promote, further, or assist criminal conduct by gang members" (id. at p. 67) and "applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Id. at p. 66.)
Both Gabriel and Lowary argue sufficient evidence does not support the first prong of section 186.22, subdivision (b)(1). Moreover, they argue the evidence proves the attacks against Fisher were personal and not gang related. To this end, Gabriel and Lowary point out: (1) Jose and Gabriel were the only members of Pecan Street; (2) none of the victims were gang members; (3) Lowary and Acuna were not gang members; (4) Mendoza was a gang member, but not in the Pecan Street gang; (5) Acuna and Mendoza testified that the February 2006 shooting of Fisher was not gang related; and (6) Lowary testified he assisted in the shooting of Fisher not to benefit the Pecan Street gang, but to aid the Herreras as "family."
Gabriel's and Lowary's arguments illuminate the difference between our role, as an appellate court, and the jury, as a factfinder. If we were hearing the evidence as a factfinder, we very well could have reached the conclusion Gabriel and Lowary urge, namely, the crimes were not committed for the "benefit of, at the direction of, or in association with a gang." In addition, we might believe a reasonable jury could have found the crimes were not gang related based on the record before us. However, our task on appeal is more limited. (See Steele, supra, 27 Cal.4th at p. 1249.) 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." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Here, although Gabriel and Lowary present evidence that could be reconciled with a contrary finding, their arguments ignore the evidence in the record that supports the jury's finding on the gang enhancements. At their fist fight, both Jose and Fisher said something about their respective gangs. Jose and Gabriel were members of the Pecan Street gang. There was testimony that Fisher was in a party crew and was friends with members of the Sex Cash and Hypnotic Minds party crews. Jones testified that, prior to the shooting on January 30, 2006, the appellants drove by him and flashed gang signs, and Hicks testified they were shouting out something related to a gang. Lowary testified Jose and Gabriel put their hands up, about shoulder level or a little lower, and gestured with their fingers in the shape of a "P" after the January 30, 2006 shooting. While Gabriel and Lowary are correct that the testimony of Acuna, Mendoza, and Lowary painted a different picture wherein the crimes were only personal and not gang related, the jury was free to disregard the testimony of these defendants and find more credible the testimony of the victim and his friends.
In addition, the evidence supporting the gang enhancements was buttressed by expert opinion testimony. The People's expert witness, Reyes, explained the importance of retaliation in gang culture. Based on a hypothetical mirroring of the facts of the January 30, 2006 shooting, Reyes opined it was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members. Reyes opined it was a continued progression of violence, which began as retaliation for the fist fight between Fisher and Jose, and the gang members was demanding respect to further their gang. Further, Reyes testified the January 30 shooting was in association with a gang because there were two active members from the same gang, even though they were brothers.
Based on a hypothetical mirroring the facts of the February 6, 2006 shooting, Reyes opined the shooting was committed for the benefit of, or in association with a criminal street gang. According to Reyes, the crime progressed to become more organized, in terms of exchanging cars, bringing a firearm, and waiting for Fisher. Reyes opined the February 6 shooting was a continuation from the January 30 shooting because the appellants had not succeeded in killing Fisher at the earlier shooting.
Gabriel challenges Reyes's testimony, claiming it was nothing but an affirmation of the phrases stated by the People's hypotheticals and was given without adequate explanation or supporting evidence to link the crimes to the Pecan Street gang. We are not persuaded.
The People can present expert testimony on criminal street gangs to prove the elements of the gang enhancement. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) "It has also long been settled that . . . expert testimony, generally, and expert testimony regarding whether a crime is gang related specifically, may be given in response to hypothetical questions." (People v. Vang (2011) 52 Cal.4th 1038, 1050, fn. 5 (Vang).) Further, "[e]xpert 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 . . . a[] criminal street gang' within the meaning of section 186.22(b)(1)." (Albillar, supra, 51 Cal.4th at p. 63.)
Here, evidence showed that Jose and Fisher got into a fist fight that Fisher won. Prior to the fight, Jose and Fisher mentioned their gangs. Jose and Gabriel subsequently threw a gardening shovel at Fisher from their car, and during the incident, Jose was throwing up gang signs. Gabriel later tried to run over Fisher with his car outside a party. On January 30, 2006, Gabriel, Jose, and Mendoza, after flashing gang signs, shot at a car in which Fisher was sitting. Then on February 6, 2008, with Lowry, Acuna, Mendoza, and Jose in the car, Gabriel shot Fisher multiple times while he was walking home.
In light of this evidence, Reyes's testimony was necessary to explain how a gang's reputation would be enhanced by this violence and why a gang member would choose to respond with violence or escalate the altercation with Fisher. These are all matters "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . ." (Evid. Code, § 801, subd. (a); see also People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931.) Reyes provided such testimony and nothing further was needed to link the specific crimes to the Pecan Street gang. In short, the jury could have reasonably inferred the January 30 and February 6 shootings were gang related based on the expert's testimony coupled with other evidence discussed above. (See e.g. id. at p. 931; People v. Olguin (1994) 31 Cal.App.4th 1355, 1384-1385 [expert testimony regarding criminal street gangs bolstered evidence that the shooting involved an argument between rival gang members allowing the jury to find gang enhancement].)
Lowary argues the hypotheticals did not closely mirror the evidence offered at trial. Specifically, he asserts all the hypotheticals offered to Reyes were predicated on the fact the initial fist fight included the identification of gangs and party crews. Based upon this flawed premises, Lowary insists Reyes extrapolated a gang-related series of events taking place over one to two years in which the gang members attempted to garner respect and notoriety. Lowary also contends there is no evidence that the initial fist fight was anything but a personal dispute between Jose and Fisher, started when Jose called Fisher a racial epithet. We disagree.
Contrary to Lowary's argument, there is evidence in the record the initial fist fight involved a reference to gangs. Acuna testified Jose told him that Fisher and Jose had said "stuff about their gangs" prior to fighting. Thus, the jury could have inferred from his testimony that Jose and Fisher did indeed identify their gang allegiance prior to fighting. As such, the hypothetical asking Reyes to assume that prior to the fistfight, one participant identified himself as a member of a party crew and the other identified himself as a member of a gang was proper. It was " 'rooted in facts shown by the evidence.' " (Vang, supra, 52 Cal.4th at p. 1045, quoting People v. Gardeley (1996) 14 Cal.4th 605, 618; see also People v. Garcia (2007) 153 Cal.App.4th 1499, 1505, 1513-1514 [prosecutor properly stated hypothetical facts, then asked the expert, " 'do you have an opinion as to whether this particular offense was committed for the benefit of, or in association with the criminal street gang?' "].)
Finally, Lowary argues there is insufficient evidence to prove he committed the crimes with the intent to promote the gang's activity. Lowary's argument, however, is based upon his misunderstanding of the requirements of the second prong of section 186.22, subdivision (b)(1). There is no requirement the defendant act with the specific intent to promote a gang. Instead, the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members. (Albillar, supra, 51 Cal.4th at p. 67; People v. Ochoa (2009) 179 Cal.App.4th 650, 661, fn. 6.)
Here, substantial evidence shows Lowary acted with the specific intent to promote, further, or assist criminal conduct by gang members. He was aware both Jose and Gabriel were members of Pecan Street. On January 30, 2010, he along with Jose shot at Fisher and his friends while they were in a car. On February 6, 2010, he drove Jose and Gabriel in his truck in search of Fisher, and Gabriel then shot Fisher after they found him walking home. Lowary admitted he wanted to help Jose and Gabriel kill Fisher. Without question, Lowary acted with the intent to assist gang members in the commission of a crime. (See People v. Villalobos (2006) 145 Cal.App.4th 310, 322 ["Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further, or assist gang members in commission of the crime."].)
III
THE COURT'S FAILURE TO PROVIDE THE LESSER INCLUDED INSTRUCTION
UNDER SECTION 246.3, SUBDIVISION (A) ON COUNTS 14 AND 15 WAS
REVERSIBLE ERROR
Appellants argue the court committed reversible error when it refused to instruct the jury on the lesser included offense of section 246.3, subdivision (a) on counts 14 and 15. We agree.
A. Grossly Negligent Discharge of a Firearm is a Lesser Included
Offense of Shooting at an Inhabited Building
Grossly negligent discharge of a firearm in violation of section 246.3, subdivision (a) is a lesser included offense of shooting at an inhabited building or an occupied motor vehicle in violation of section 246. (People v. Ramirez (2009) 45 Cal.4th 980, 990 (Ramirez); People v. Overman (2005) 126 Cal.App.4th 1344, 1359-1360 (Overman).) A trial court is required to instruct on a lesser included offense " 'when the evidence raises a question as to whether all the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citation.]' " (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)
Section 246.3, subdivision (a) provides: "Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170."
Section 246 provides in part: "Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle . . . is guilty of a felony. . . ."
After the court denied Jose's motion for a judgment of acquittal as to counts 14 and 15 under section 1118.1, Jose's counsel requested the court give a jury instruction for the lesser included offense of section 246.3, subdivision (a) under Overman, supra, 126 Cal.App.4th at pages 1355 through 1356. The court refused to do so, cavalierly stating: "I'm not going to give it. I disagree. I disagree. It's not the first time I've disagreed with this Appellate Court, and I said so on the record, so I disagree."
The People argue it is unclear with what the court disagreed. We do not share the People's inability to discern the source of the court's disagreement. Had the court believed the evidence did not support the giving of the instruction for the lesser included offense then it merely had to say as much without voicing any disagreement with Overman, supra, 126 Cal.App.4th 1344. Indeed, such a position would be consistent with Overman. (Id. at pp. 1362-1363.) The court, however, specifically said it disagreed with the "Appellate Court" and would not give the instruction for the lesser included offense. The only credible interpretation of the court's position is it disagreed that section 246.3 is a lesser included offense of section 246. It was wrong.
B. The Lesser Included Instruction Should Have Been Given
The law governing a trial court's duty to instruct the jury on lesser included offenses, and the standard of review that this court applies in reviewing a trial court's decision regarding whether to give such an instruction, are well established:
"Instructions on lesser included offenses must be given when there is substantial evidence for a jury to conclude the defendant is guilty of the lesser offense but not the charged offense. [Citations.] Substantial evidence is defined for this purpose as 'evidence sufficient to "deserve consideration by the jury," that is, evidence
that a reasonable jury could find persuasive.' [Citation.] 'In deciding whether evidence is "substantial" in this context, a court determines only its bare legal sufficiency, not its weight.' [Citation.] The trial court's decision whether or not the substantial evidence test was met is reviewed on appeal under an independent or de novo standard of review. [Citations.]" (People v. Garcia (2008) 162 Cal.App.4th 18, 24-25.)
The People argue the instruction for a violation of section 246.3, subdivision (a) was not warranted because the evidence is unequivocal that Gabriel shot at Fisher, and Fisher was in front of houses. The People further reason if the houses were in Gabriel's firing range when he shot at Fisher then the intent element of a violation of section 246 is satisfied. (See People v. Chavira (1970) 3 Cal.App.3d 988, 993 ["Defendant and his associates, engaged in a fusillade of shots directed primarily at persons standing close to a dwelling. The jury was entitled to conclude that they were aware of the probability that some shots would hit the building and that they were consciously indifferent to that result."].) In other words, the People contend there was no evidence that supports giving an instruction for grossly negligent discharge of a firearm.
Although the People have correctly stated the law, we conclude substantial evidence does exist that would allow the jury to conclude the appellants were guilty of the lesser included offense. The record is clear Gabriel intended to shoot Fisher. However, it is not so clear regarding whether the houses were in Gabriel's line of fire or how close Fisher was to the houses when he was shot.
Acuna testified Fisher fell to the ground after the first shot was fired, and he fell near the middle of the street. Mendoza testified Fisher was starting to cross the lawn when he fell to the ground after Gabriel began shooting. Neither Acuna nor Fisher testified as to Fisher's position in relation to any houses when Gabriel began shooting at him.
Although the record is less than clear, Acuna appears to have been testifying regarding Fisher's position relative to the beginning and ending of the street as opposed to Fisher actually lying in the middle of the street after he was shot.
Fisher testified that he was running through front yards after he saw Gabriel pull a gun and lean out the front passenger window of Lowary's truck. Fisher also testified Lowary's truck was ahead of him on the street before the shooting began, and he was shot in the front yard of "the fourth house from Gold Star." However, because the truck was ahead of Fisher, it is unclear if the houses were in close proximity to Fisher or Gabriel's line of fire given the angle at which Gabriel was shooting.
There were bullet holes in the garage doors of two houses on the street, one where the Flanderka family lived and the other where the Fisher family lived. No bullet was recovered in the Flanderka's house's garage. A bullet was recovered from the garage of the Fisher residence, but there is no evidence in the record that the bullet recovered was the same as those fired by the gun Gabriel used. Moreover, it is unclear in the record where Fisher was when both the shooting began and when he was shot relative to the two houses.
In short, we are satisfied substantial evidence existed that a reasonable jury could find persuasive in convicting appellants under section 246.3, subdivision (a). (See People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) As such, the trial court erred in failing to instruct the jury on the lesser included offense of violation section 246.3, subdivision (a) in counts 14 and 15. (See Overman, supra, 126 Cal.App.4th at p. 1363.)
C. The Error Was Not Invited
The court should have given the lesser included instruction. It did not do so only because it disagreed with Overman, supra, 126 Cal.App.4th 1344. Although obstinance might be an important trait in some professions, it is not a valued component of judicial temperament. Our high court confirmed the holding of Overman in acknowledging section 246.3 is a less included offense of section 246. (See Ramirez, supra, 45 Cal.4th at p. 990.) The trial court could not choose to ignore the clear holdings of Ramirez and Overman merely because it disagreed with them. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction."].) The court's failure to provide the instruction on the lesser included offense was error.
The People, however, argue the error was invited because Jose's counsel told the court he had "made a tactical decision not to request any lessers on behalf of my client." (See People v. Harris (2008) 43 Cal.4th 1269, 1293.) We disagree.
Jose's trial counsel informed the court he was not seeking any instructions on lesser included offenses after the court already denied his request for an instruction for section 246.3, subdivision (a). Thus, Jose's trial counsel already knew the court was not going to give his earlier requested instruction for a lesser included offense when he later informed the court he was not seeking any instructions on lesser included offenses. We do not read these positions as inconsistent. Jose's trial counsel had requested a lesser included instruction for a violation of section 246.3, subdivision (a). The court denied the request. He did not withdraw his previous request, but instead, subsequently informed the court he would not be seeking any instructions for lesser included offenses. We read Jose's trial counsel's later statement to the court as merely informing it that he was not seeking any additional instructions on lesser included offenses beyond the one he already requested. Jose's trial counsel did not invite the error.
D. The Error Was Not Harmless
"[W]hen a trial court violates state law by failing to properly instruct the jury on a lesser included offense, this test applies: '[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offense and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v.] Watson [(1956) 46 Cal.2d 818, 836]. A conviction of the charged offense may be reversed in consequence of this form of error only if, "after an examination of the entire cause, including the evidence" [citation], it appears "reasonably probable" the defendant would have obtained a more favorable outcome had the error not occurred. [Citation.]' " (People v. Lasko (2000) 23 Cal.4th 101, 111 (Lasko).)
In applying the Watson standard of prejudice, we follow Breverman's guidance:
"Appellate review under Watson . . . focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Breverman, supra, 19 Cal.4th at p. 177; original italics.)
Based on our review of the record, we conclude the trial court's error was not harmless under the Watson standard. Most importantly, the evidence supporting appellants' convictions under counts 14 and 15 for violating section 246 is not overwhelming. As we discussed above, the record is imprecise at best regarding Fisher's location relative to the houses on the street at the time Gabriel began shooting. Fisher was running down the street; thus, it is not clear if he was in front of a house and that particular house was in the line of fire when Gabriel began shooting. This analysis is further complicated by Fisher's testimony that the truck was in front of him when the shots were first fired.
And the People never established how close Fisher was to any house when shots were fired. While there is testimony that Gabriel was about 22 feet away from Fisher when he began shooting, there is no evidence regarding the distance between Gabriel and the houses or Fisher and the houses. Indeed, in discussing motions under section 1118.1, Jose's counsel and the court disagreed regarding the proximity of the houses. Jose's counsel stated the distance looked to be "20 or 30 feet at least, maybe more, and 50 or 60 feet from one of the houses. I submit that is not close." The court disagreed, stating, "[Y]ou're talking 20 or 30 feet. I think it is probably 20 or 30 feet from the occupied dwelling." In addition, the People have not cited to any portion of the record where the distance between Fisher and the houses was established at trial.
Also, Fisher fell to the ground after he was shot, and Gabriel continued to shoot at Fisher while he was on the ground. The bullets that hit the two garages, if they did come from Gabriel's gun, could have ricocheted off the ground. A reasonable jury thus could find appellants lacked the intent to shoot at the houses or the houses were not in the line of fire or in close proximity to Fisher when Gabriel shot him.
For purposes of our review, we stress we are not concerned whether substantial evidence supports the convictions under section 246. Instead, we review the record to ascertain if it is "reasonably probable" the appellants would have obtained a more favorable outcome had the error not occurred. (Lasko, supra, 23 Cal.4th at p. 111.) Our high court has emphasized "that a 'probability' in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. ([Watson, supra, 46 Cal.2d] at p. 837; cf. Strickland v. Washington[, supra], 466 U.S. 668, 693-694, 697, 698 ['reasonable probability' does not mean 'more likely than not,' but merely 'probability sufficient to undermine confidence in the outcome'].)" (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715 (College Hospital); italics omitted.) A more favorable outcome under this analysis includes a hung jury. (Cf. People v. Soojian (2011) 190 Cal.App.4th 491, 519-522.)
On the record before us, we simply cannot conclude a reasonable probability does not exist for a more favorable outcome if the court had provided the instruction for the lesser included offense. It may very well be that the testimony at trial was as clear to the jury as it apparently was to the court that: "This is a residential street and they're firing in the direction of home" and no more evidence was needed to convict appellants under section 246 in the eyes of the jury. The record, however, is too uncertain to support the convictions. Absent the court providing a jury instruction for section 246.3, we lack "confidence in the outcome." (See College Hospital, supra, 8 Cal.4th at p. 715.)
IV
THE COURT ERRED IN SENTENCING APPELLANTS
A. Counts 8 and 10
Appellants contend and the People concede the court made the following sentencing errors: (1) on count 8, adding a 25-year-to-life term per the enhancement under section 12022.53, subdivision (d) as to all appellants; and (2) on count 10, adding a 25-year-to-life term per the enhancement under section 12022.53, subdivision (d) as to Lowary. We agree.
Based on the January 30, 2006 shooting, the People charged appellants in count 7 of attempted murder of Fisher, in count 8 of attempted murder of Hicks, in count 9 of attempted murder of Jones, and in count 10 of unlawful discharge at an occupied motor vehicle. Among other allegations, the People alleged appellants personally and intentionally discharged a firearm and proximately caused great bodily injury or death, within the meaning of sections 12022.53, subdivision (d) and 1192.7, subdivision (c)(8). At the end of the trial, however, the prosecutor orally moved to amend the information, changing the allegations in counts 7 through 10 to section 12022.53, subdivision (c), instead of subdivision (d).
The jury found the allegations true that Jose personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c) and 1192.7, subdivision (c)(8) for counts 7 through 9. The jury found that Lowary and Gabriel were principals and at least one principal did personally and intentionally discharge a firearm, within the meaning of sections 12022.53, subdivisions (c) and (e) as to counts 7 through 10. Section 12022.53, subdivision (c) provides for a 20-year sentence enhancement.
Despite the jury's findings, the court sentenced appellants to 25-year-to-life enhancements under section 12022.53, subdivision (d) on counts 8 as well as an additional 25-year-to-life enhancement under the same subdivision on count 10 for Lowary. The court erred and should have sentenced appellants consistent with the jury's findings under the enhancement in section 12022.53, subdivision (c). (See § 12022.53, subd. (j) [enhancements must be pled and proven to apply].)
B. Count 13
1. The Sentence Enhancement Under Section 186.22
Jose and Lowary assert and the People concede the court erred in sentencing them on count 13 for the enhancements under both sections 12022.53 and 186.22. We agree.
The jury found Jose and Lowary guilty in count 13 of willfully discharging a firearm from a motor vehicle. As to Jose, the jury found true the vicarious use causing great bodily injury enhancement (§ 12022.53, subd. (d) & (e)) and the gang enhancement (§ 186.22, subd. (b)). The jury found Jose did not personally and intentionally discharge a firearm and proximately cause great bodily injury or death within the meaning of sections 12022.53, subdivision (d) and 1192.7, subdivision (c)(8).
The jury found that Lowary was a principal and at least one principal did personally and intentionally discharge a firearm and proximately cause great bodily injury or death to another person, within the meaning of section 12022.53, subdivisions (d) and (e). It also found the gang enhancement to be true.
Section 12022.53, subdivision (e)(2) provides "[a]n enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense." Because the jury did not find Jose or Lowary personally discharged a firearm in count 13, pursuant to the statute, the gang enhancement cannot be imposed in addition to the weapons enhancement. The 10-year enhancements for both Jose and Lowary, under section 186.22, therefore were improper.
2. Lowary's Sentence Under Section 12034, Subdivision (d)
Lowary also argues the court incorrectly instructed the jury on count 13 and improperly sentenced him under section 12034, subdivision (d). We agree the court incorrectly instructed the jury, but conclude Lowary experienced no prejudice. Also, we are satisfied the court sentenced Lowary properly.
Lowary was charged in count 13 with a violation of section 12034, subdivision (c) for willfully, unlawfully and maliciously discharging a firearm from a motor vehicle at another person not an occupant of a motor vehicle. Toward the end of trial, the prosecutor orally amended count 13 to charge section 12034, subdivision (d). Subdivision (d) proscribes maliciously discharging a firearm from a motor vehicle. It does not contain the requirement, found in subdivision (c), that the individual shoot at another person.
Despite the prosecutor's oral amendment, the court instructed the jury under CALCRIM No. 968, which tracks the elements under section 12034, subdivision (c). The verdict form also included the element of shooting at a person, although it referenced section 12034, subdivision (d).
The verdict form stated: "We, the jury in the above-entitled action, find the defendant, Christopher Daniel Lowary, guilty of a violation of section 12034, subdivision (d), of the Penal Code, shooting from an occupied vehicle at another person not an occupant of a motor vehicle, as charged under count 13 of the second amended information."
Although Lowary asserts the court erroneously instructed the jury on count 13, he does not attribute any prejudice to the instruction. We agree. The instruction did not diminish the prosecutor's burden of proof. The jury was instructed on, and found an extra element (shooting at another person) that the prosecutor was not required to prove. Moreover, the court did not sentence Lowary under section 12034, subdivision (c), but instead under section 12034, subdivision (d). As such, we need only address Lowary's contention that the court improperly sentenced him under subdivision (d).
Section 12034, subdivision (c) allows for a punishment of three, five, or seven years.
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After the court noted section 12034, subdivision (d) provided sentencing options of 16 months, two years, or three years, it selected the middle term of two years. However, Lowary insists the court could not sentence him to a term longer than a year because section 12034, subdivision (d) states it is punishable by "imprisonment in the county jail for not more than a year or in the state prison." We reject Lowary's contention.
Section 12034, subdivision (d) is an "alternative felony/misdemeanor offense, also known as a 'wobbler,' " which our Supreme Court defines as "a felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by the sentencing court under Penal Code section 17, subdivision (b)." (People v. Statum (2002) 28 Cal.4th 682, 685; see §§ 17, 18.) Here, there is no indication the court should have treated the section 12034, subdivision (d) count as a misdemeanor. The People originally charged Lowary with a felony under section 12034, subdivision (c) in count 13. When the People orally amended the information at trial to section 12034, subdivision (d), there is no indication they were amending the count to a misdemeanor. Moreover, the court clearly viewed the charge as a felony when it sentenced Lowary.
Because count 13 was a felony, the court had discretion to sentence Lowary to prison for either 16 months, two years, or three years. (See § 18.) It properly did so when it selected the middle range of two years. There was no error.
DISPOSITION
Jose's, Gabriel's, and Lowary's convictions under counts 14 and 15 are reversed. If the People do not bring any of the appellants to retrial on these counts within the time set forth in section 1382 (i.e., 60 days after the filing of the remittitur unless good cause is shown for a different period or appellants waive the 60-day requirement), the court shall proceed as if the remittitur constituted a modification of judgment to reflect convictions under section 246.3. The court will resentence appellants accordingly.
In addition, we strike the sentence enhancements under section 12022.53, subdivision (d) for count 8 as to all appellants and the sentencing enhancement under section 12022.53, subdivision (d) for count 10 as to Lowary. We also strike the sentencing enhancements under section186.22, subdivision (b) for count 13 as to Jose and Lowary.
We remand this case back to superior court to sentence appellants consistent with this opinion, subject to any retrial on counts 14 and 15. In all other aspects, the judgment is affirmed.
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HUFFMAN, J.
WE CONCUR:
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BENKE, Acting P. J.
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O'ROURKE, J.