People v. Meighan CA2/2 ( 2016 )

Filed 8/31/16 P. v. Meighan CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B261364
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA427483)
v.
MARCUS JERMAINE MEIGHAN et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los Angeles County. Henry
J. Hall, Judge. Affirmed.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and
Appellant Marcus Jermaine Meighan.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant
and Appellant Terrel Hysaw.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Noah P.
Hill, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and appellants Marcus Jermaine Meighan and Terrel Hysaw1 appeal
from judgments entered after they were convicted in a joint trial of several gang-related
felonies. Both defendants contend that no substantial evidence supported a finding that
their gang was a criminal street gang, and Hysaw contends that the trial court improperly
imposed consecutive sentences which subjected him to multiple punishment in violation
of Penal Code section 654.2 We find no merit to defendants’ contentions, and thus affirm
the judgments.
BACKGROUND
Defendants were jointly charged in count 1 with the attempted murder of Eric
Richardson, Sr. (Richardson, Sr.), and in count 2 with the attempted murder of Eric
Richardson, Jr. (Richardson, Jr.), in violation of sections 664 and 187, subdivision (a).
Defendants were also jointly charged in count 4 with discharging a firearm from a motor
vehicle, in violation of section 26100, subdivision (c). In addition, Hysaw was charged in
count 3 with evading an officer in violation of Vehicle Code section 2800.2, subdivision
(a). The information specially alleged that defendants committed counts 1 and 2
willfully, deliberately, and with premeditation within the meaning of section 664,
subdivision (a). In counts 1 and 2, it was alleged pursuant to section 12022.53,
subdivisions (b) and (c), that a principal personally and intentionally used and discharged
a firearm during the commission of the offenses, and in count 4, that Meighan personally
and intentionally discharged a firearm, causing great bodily injury to Richardson, Sr.
within the meaning of section 12022.53, subdivisions (d), and (e)(1). As to all counts it
was also alleged, pursuant to section 186.22, subdivision (b), that the crimes were
committed 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 criminal conduct by gang
1 We shall refer to appellants collectively as defendants, and to each appellant
individually by his surname.
2 All further statutory references are to the Penal Code, unless otherwise indicated.
2
members. Finally, the information alleged that Meighan had suffered a prior conviction
for which he had served a prison term as described in section 667.5, subdivision (b).
A jury found Meighan guilty of counts 1, 2, and 4 as charged, and found true all
special allegations. With regard to each of counts 1, 2, and 4, the jury found Hysaw
guilty of the lesser included offense of accessory to a felony as defined in section 32, and
found him guilty of count 3 as charged. The gang allegation was found to be true as to all
such counts.
On January 7, 2015, the trial court sentenced Meighan to life in prison with a 15-
year minimum parole eligibility as to count 1, plus a consecutive firearm enhancement of
25 years to life pursuant section 12022.53, subdivision (d). An identical term was
imposed as to count 2, to run consecutively. The court imposed the middle term of five
years as to count 4, with a gang enhancement of 10 years and firearm enhancement of 25
years to life, all stayed pursuant to section 654. The court imposed mandatory fines and
fees, and awarded Meighan a total of 778 days of presentence custody credit.
On February 4, 2015, the trial court sentenced Hysaw to a total term of eight years
eight months in prison, comprised of the upper term of three years as to count 3, plus a
four-year gang enhancement, and a consecutive one-third middle term of eight months as
to count 1, with a gang enhancement of one year. The court imposed terms of seven
years in prison as to each of counts 2 and 4, and stayed them pursuant to section 654.
The court awarded Hysaw a total of 1,412 days of presentence custody credit.
Each defendant filed a timely notice of appeal.
Prosecution evidence
The shooting and police pursuit
The prosecution presented evidence that defendants were both members of the
Rolling 60’s Neighborhood Crip gang (Rolling 60’s). On March 2, 2013, at about 8:20
a.m., Hysaw and Meighan entered the territory of the rival Hoover Crip gang, and
stopped near Richardson, Sr. and Richardson, Jr., who were walking northbound on
Figueroa Street. Hysaw was driving a loaner car he had obtained from a used car dealer,
and Meighan was in the passenger seat. Meighan said to the two men, “What’s up,
3
Groove?” Richardson, Sr. recognized the word “Groove” to mean a Hoover gang
member, and Meighan’s question as “gang talk.” Meighan pointed a firearm at the two
men and fired two or three times, hitting Richardson, Sr. in the leg. Hysaw then drove
northbound at a normal rate of speed as Richardson, Jr. called 911. Within about three
minutes of the shooting, Los Angeles Police Department (LAPD) Officers Abel Estopin
and Mauricio Aranda received radio calls about the shooting and drove, with sirens on, in
their separate patrol cars toward the location.
Within minutes, Hysaw passed within sight of uniformed LAPD Officer Ronald
Roberson, who was waiting on his police motorcycle at a nearby traffic light. Officer
Roberson estimated Hysaw’s speed at 65 to 70 miles per hour in a 35 mile per hour zone,
so he activated his lights and siren and proceeded to follow Hysaw’s car in an attempt to
effect a traffic stop, as Officer Estopin, having heard Officer Roberson’s broadcast
regarding his pursuit, joined him. As Hysaw continued to travel at 65 to 70 miles per
hour, Officer Roberson could see the two occupants of the car look back at him through
the rear view and side mirrors. Hysaw made a series of turns, drove through stop signs in
a school zone, and then slowed to 15 or 20 miles per hour to allow Meighan to get out of
the car, run, and hide in a nearby garage. Hysaw continued to drive at a high rate of
speed while being pursued by Officer Roberson and other officers who had joined the
pursuit, all with lights and sirens activated. Soon, Hysaw collided with a fence, got out of
the car, and ran away from the officers until he was stopped and taken into custody.
Gang expert’s testimony3
LAPD Officer Gilberto Gaxiola testified as the prosecution’s gang expert. He
detailed his education and experience with regard to Los Angeles criminal street gangs,
including his five-year assignment to the 77th Division gang enforcement detail. During
those five years, Officer Gaxiola was assigned to the Rolling 60’s gang, one of the largest
gangs in Los Angeles. It was his task to gather intelligence on a daily basis, and his
3 As the sole issue relating to gang evidence is whether substantial evidence
supported a finding that the Rolling 60’s Crip gang was a criminal street gang, we
summarize only the testimony relevant to that issue.
4
duties included getting to know the neighborhood, its residents, gang members and their
families, and assisting detectives in their investigations. By Officer Gaxiola’s estimate,
he had spoken to 500 or 600 members of the Rolling 60’s during his career. Although
about 200 of the gang members were under arrest when he spoke to them, most of the
others had spoken willingly during consensual and usually casual encounters. Some of
the gang members would tell Officer Gaxiola who the Rolling 60’s rival gangs were,
what feuds were ongoing, what other gangs were driving through the neighborhood or
causing problems, and other information of that nature. Officer Gaxiola also spoke
regularly to other police officers and read their reports to keep apprised of occurrences
within his assigned gang area. Officers shared information on gangs and gang problems
throughout the 77th Division usually on a daily basis.
Officer Gaxiola testified that in the mid-1970’s the Neighborhood Crip gang split
into several sets, with the Rolling 60’s the largest and most powerful of the sets.
Currently the Rolling 60’s has about 1,200 documented members. By the 1980’s, the
Rolling 60’s had earned the nickname “Rich Rolling” by committing takeover bank
robberies; however, they continued to be “really big” committing robberies in general, as
well as narcotics, drive-by shootings, and homicides. Officer Gaxiola had investigated
homicides, drive-by shootings, robberies, burglaries, possession of firearms, as well as “a
lot of” felony vandalism, narcotics sales, and incidents involving police evasion
committed by Rolling 60’s members.
Officer Gaxiola described the Rolling 60’s colors, signs, and symbols, as well as
the boundaries of the Rolling 60’s territory and the territory of its rivals. Rolling 60’s
members preferred wearing blue and other attire signifying the gang, such as the baseball
cap worn by Hysaw when he ran from the police after the shooting.4 Officer Gaxiola had
observed gang graffiti in the Rolling 60’s neighborhood, and explained the gang’s
purpose in writing graffiti was to claim territory through fear and intimidation by
reminding residents and rival gang members who they were. The more territory the gang
4 The cap featured an “O” for Orlando, and members of the Rolling 60’s gang called
themselves “O’s.”
5
controlled, the more powerful it was. Officer Gaxiola explained the several ways to join
a gang, such as being “jumped in” by fighting several members of the gang, being born
into gang family, and by proving one’s loyalty by “putting in work” for the gang. He
explained that putting in work meant committing such crimes as robbery, writing graffiti
in rival gang territory, or a drive-by shooting.
In Officer Gaxiola’s opinion, members of the Rolling 60’s had engaged in a
pattern of criminal activity, and the primary activities of the Rolling 60’s were robberies,
burglaries, murders, attempted murders, drive-by shootings, sales of narcotics, carrying
weapons, firearms, evading the police, and felony vandalism. As predicate offenses
demonstrating the gang’s pattern of criminal activity, Officer Gaxiola presented three
certified minute orders showing convictions of three Rolling 60’s gang members. The
first was Antonio Martice King, who was convicted of an attempted murder which was
committed on or about March 19, 2008. Officer Gaxiola was involved in the
investigation of that crime and testified as a gang expert in that case. He had known King
for years as an admitted Rolling 60’s gang member with the moniker of Baby Ahmin.5
King was a member of the Rolling 60’s at the time he committed the attempted murder of
a rival gang member with a firearm.
Officer Gaxiola next presented the conviction of Jacob Cray, for carrying a
concealed firearm on or about December 30, 2010, during a gang function attended by
approximately 10 gang members. Officer Gaxiola was the arresting officer and testified
against Cray at trial. He knew Cray from speaking to him during the officer’s assignment
in that area, and from prior arrests. Officer Gaxiola knew him to be a member of the
Rolling 60’s with the moniker Jay Hood.
The third certified minute order showed that Dante Lamar Ellis was convicted of a
murder committed on or about April 12, 2012. Officer Gaxiola was involved in the
5 Officer Gaxiola explained that the gang would give a member his moniker, also
called a “hood name,” once he had qualified or proven himself in the gang. Its usual
purpose was to make identification by the police more difficult.
6
investigation, testified at trial as a gang expert, and knew Ellis from prior arrests and
contacts. Ellis was a member of the Rolling 60’s gang with the moniker Crip Star.
Although the murder was a drive-by shooting in Van Ness Gangster gang territory, the
victim was not a gang member, but had been mistaken for one while walking in front of a
Van Ness Gangster hangout.
Officer Gaxiola had known of Meighan for three years. While assigned to the
Rolling 60’s gang, Officer Gaxiola had spoken to Meighan and members of his family on
various occasions. Also, Officer Gaxiola had arrested Meighan before, and Meighan had
admitted that he was a member of the Rolling 60’s. Officer Gaxiola reviewed reports of
other officers, including a report regarding Meighan’s arrest in April 2009 when he was
in the company of three other documented Rolling 60’s gang members; a surveillance
video showing Meighan with about 10 other members of the Rolling 60’s at a known
gang hangout in April 2010; and field interview cards prepared in June 2011 and
February 2013, documenting Meighan’s membership in the gang, with the moniker
Stretch. Based upon his personal experience with Meighan and the reports of other
officers, Officer Gaxiola opined that on March 2, 2013, Meighan was a member of the
Rolling 60’s.
Officer Gaxiola had known Hysaw since 2008, and had reviewed reports and field
interview cards prepared by other officers regarding Hysaw. One report concerned a
gang-related incident in November 2005, during which Hysaw was seen near Hyde Park
and Crenshaw Boulevards, a known Rolling 60’s hangout, with two other documented
Rolling 60’s members, one of whom said, “This is 60’s hood, cuz.” At a funeral
gathering at Meighan’s home on December 21, 2008, Officer Gaxiola spoke to Hysaw
and prepared a field interview card noting that one of the two people in his immediate
vicinity was a Rolling 60’s gang member. Hysaw admitted to the officer that he was a
member of the Rolling 60’s, with the moniker Tee Tee. It was Officer Gaxiola’s opinion
that on March 2, 2013, Hysaw was also a member of the Rolling 60’s. He based his
opinion on other officers’ reports, his own experience with Hysaw, Hysaw’s association
7
with Meighan and other gang members, and the Orlando Magic cap that Hysaw wore the
day of the shooting.
Given a hypothetical question mirroring the facts in evidence, Officer Gaxiola
opined that the shooting and the evasion were committed in association with and for the
benefit of a criminal street gang.
DISCUSSION
I. Substantial evidence
Meighan contends that the prosecution presented insufficient evidence to prove
that the Rolling 60’s was a criminal street gang. Hysaw joins in Meighan’s contention
and adopts Meighan’s argument.
“‘“We review the sufficiency of the evidence to support an enhancement using the
same standard we apply to a conviction. [Citation.]”’” (People v. Howard (2010) 51
Cal. 4th 15, 34.) Thus, we “review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence -- that is, evidence
which is reasonable, credible, and of solid value -- such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980)
26 Cal. 3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We
must presume in support of the judgment the existence of every fact the jury could
reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal. 4th 978, 1053.)
We do not reweigh the evidence or resolve conflicts in the evidence. (People v. Young
(2005) 34 Cal. 4th 1149, 1181.) “[B]ecause ‘we must begin with the presumption that the
evidence . . . was sufficient,’ it is defendant, as the appellant, who ‘bears the burden of
convincing us otherwise.’ [Citation.]” (People v. Hamlin (2009) 170 Cal. App. 4th 1412,
1430.)
For purposes of the gang enhancement imposed pursuant to section 186.22,
“‘criminal street gang’ means any ongoing organization, association, or group of three or
more persons, whether formal or informal, having as one of its primary activities the
commission of one or more of [specified] criminal acts enumerated in . . . subdivision
(e), having a common name or common identifying sign or symbol, and whose members
8
individually or collectively engage in or have engaged in a pattern of criminal gang
activity.” (§ 186.22, subd. (f).) A “‘pattern of criminal gang activity’ means the
commission [or] attempted commission of . . . two or more [enumerated] offenses, [the
last of which occurred] within three years after a prior offense, and . . . were committed
on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).) As relevant
here, the enumerated acts include the commission or attempted commission of assault
with a deadly weapon, murder, robbery, the sale of narcotics, discharging a firearm from
a motor vehicle, felony vandalism, and possession of a concealed firearm. (186.22, subd.
(e)(1)-(4), (6), (20), (22)-(23).)
The two required enumerated offenses, or “predicate offenses” need not be gang
related, and may be proven with official court records establishing the convictions of two
or more predicate offenses by members of the gang. (People v. Gardeley (1996) 14
Cal. 4th 605, 610, 622-624 (Gardeley), disapproved on another ground in People v.
Sanchez (2016) 63 Cal. 4th 665, 686, fn. 13.) “[I]nstances of current criminal conduct can
satisfy the statutory requirement for a ‘pattern of criminal gang activity.’” (People v.
Loeun (1997) 17 Cal. 4th 1, 10-11.) In addition, “evidence of either past or present
criminal acts listed in subdivision (e) of section 186.22 is admissible to establish the
statutorily required primary activities of the alleged criminal street gang.” (People v.
Sengpadychith (2001) 26 Cal. 4th 316, 323 (Sengpadychith).)
“The phrase ‘primary activities,’ as used in the gang statute, implies that the
commission of one or more of the statutorily enumerated crimes is one of the group’s
‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude
the occasional commission of those crimes by the group’s members. . . . [¶] Sufficient
proof of the gang’s primary activities might consist of evidence that the group’s members
consistently and repeatedly have committed criminal activity listed in the gang statute.”
(Sengpadychith, supra, 26 Cal.4th at pp. 323-324.) “Also sufficient might be expert
testimony, as occurred in Gardeley . . . [where] a police gang expert testified that the
[defendant’s] gang . . . was primarily engaged in the sale of narcotics and witness
intimidation, both statutorily enumerated felonies[, basing] his opinion on conversations
9
he had with [the defendant] and fellow gang members, and on ‘his personal investigations
of hundreds of crimes committed by gang members,’ together with information from
colleagues in his own police department and other law enforcement agencies. (Id. at p.
324, quoting Gardeley, at p. 620.)
Meighan contends that Officer Gaxiola’s testimony was insufficient because he
merely concluded that the gang’s primary activities were robberies, burglaries, murders,
attempted murders, drive-by shootings, sales of narcotics and firearms, evading the police
and felony vandalism, without providing a basis for this conclusion. We disagree, and to
illustrate, we first address Meighan’s suggestion that the three certified predicate
convictions could not provide evidence of the gang’s primary activities because the
predicate offense requirement is a separate element from the required pattern of criminal
gang activity.
To support his suggestion that the predicate crimes provided “no basis for [the
officer’s] conclusion,” defendant relies on People v. Vy (2004) 122 Cal. App. 4th 1209,
1222, and In re Alexander L. (2007) 149 Cal. App. 4th 605, 611, but neither case supports
his argument. Both cases recited the elements of the definition of “criminal street gang”
as gleaned from Gardeley, supra, 14 Cal.4th at page 617, but did not hold or suggest that
the predicate offenses admitted to show a pattern of criminal gang activity were
inadmissible or irrelevant as proof of the gang’s primary activities. Indeed, the Vy court
explained that evidence of the commission and attempted commission of crimes
enumerated in section 186.22, subdivision (e) “should satisfy both the ‘primary activities’
requirement under subdivision (f) and the ‘pattern’ requirement under subdivision (e).”
(Vy, supra, at pp. 1227-1228.) Further, any comparison to the facts of Alexander fails, as
the facts are very different from those in this case. Other than the hearsay statements
about two crimes committed in a single year, the entire testimony of the officer regarding
the gang’s primary activities consisted of the following: “‘I know they’ve committed
quite a few assaults with a deadly weapon, several assaults. I know they've been
involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle
burglaries, felony graffiti, narcotic violations.’” (Alexander, supra, at pp. 611-613.)
10
There were no follow-up questions, no certified records of conviction, no testimony
regarding extensive experience, personal contacts, or review, as in this case.
Here, by contrast, Officer Gaxiola presented certified court documents proving the
convictions of the predicate crimes by Rolling 60’s gang members. Such evidence was
admissible and relevant in determining the gang’s primary activities. (See
Sengpadychith, supra, 26 Cal.4th at pp. 323-324.) The certified court records and Officer
Gaxiola’s testimony provided substantial evidence that Rolling 60’s gang members
personally known to him were convicted of three predicate crimes listed in section
186.22, subdivision (e): attempted murder, committed about five years prior to the
current offense; carrying a concealed firearm, committed almost three years before the
current offense; and murder, committed about one year prior to the current offense. In
addition, the jury found Meighan, an admitted gang member, guilty of the current
offenses of attempted murder and discharging a firearm from a vehicle. (See § 186.22,
subd. (e)(3) & (e)(6).) Thus Officer Gaxiola did not merely conclude, without any basis
for his opinion, that among the gang’s primary activities were murder, attempted murder,
drive-by shootings, and firearms offenses, rather his opinion was supported with relevant
evidence in the form of certified court records of three such offenses committed or
attempted by Rolling 60’s gang members, and by the evidence in this case.
Defendant contends that there was nevertheless no evidence, other than the three
predicate offenses and Officer Gaxiola’s opinion, from which the jury could conclude
that members of the Rolling 60’s gang committed these crimes “consistently and
repeatedly rather than only occasionally” as required to prove the gang’s primary
activities. (See Sengpadychith, supra, 26 Cal.4th at p. 323.) We disagree.
The predicate and current offenses were not the only evidence supporting Officer
Gaxiola’s opinion that the gang’s primary activities were murder, attempted murder,
drive-by shootings, and firearms offenses. Officer Gaxiola’s opinion was amply and
properly supported by his five years of experience while assigned to the Rolling 60’s
gang and its territory, his review of field interview cards, police reports, daily
conversations about the gang’s activities with his colleagues, conversations with
11
hundreds of gang members, and his personal investigations of such crimes committed by
Rolling 60’s gang members as homicides, drive-by shootings, robberies, burglaries,
possession of firearms, as well as “a lot of” felony vandalism and narcotics sales -- all
crimes listed in section 186.22, subdivision (e). (See Sengpadychith, supra, 26 Cal.4th at
p. 324; Gardeley, supra, 14 Cal.4th at p. 620.)
Meighan contends that the reliability of the expert’s opinion lacked an adequate
foundation because Officer Gaxiola did not “quantify the number of gang investigations
he had participated in or estimate the number of enumerated offenses committed by
Rolling 60s gang members, or provide any details whatsoever of these contacts and
investigations.” “Of course, any material that forms the basis of an expert’s opinion
testimony must be reliable. [Citation.]” (Gardeley, supra, 14 Cal.4th at p. 618.) “So
long as this threshold requirement of reliability is satisfied, even matter that is ordinarily
inadmissible can form the proper basis for an expert’s opinion testimony. [Citations.]”
(Ibid.) Whether the foundational requirement of reliability has been shown is a matter for
the trial court’s discretion. (People v. Hill (2011) 191 Cal. App. 4th 1104, 1121-1122.)
Thus, to preserve the issue for appeal, it must be raised in the trial court. (People v.
Gonzalez (2006) 38 Cal. 4th 932, 948-949.) As there was no objection by the defense at
trial that the foundation was inadequate or that the expert’s opinion was based upon
unreliable material, Meighan may not raise the issue for the first time on appeal.
In any event, contrary to Meighan’s premise that precise details of the officer’s
contacts were required, it is the sum of the information drawn from many sources and on
years of experience, which demonstrates reliability. (See People v. Gonzalez, supra, 38
Cal.4th at p. 949.) The reliability of a gang expert’s opinion may be shown, as it was
here, by his testimony regarding his education and training, years of experience in the
gang’s community, investigations, and corroborative information such as reports and
communications with gang members and others. (Id. at pp. 945, 949 & fn. 4.) We
conclude that Officer Gaxiola’s testimony provided an adequate foundation for his
opinion (cf. People v. Martinez (2008) 158 Cal. App. 4th 1324, 1330), and that substantial
evidence supported the gang enhancement.
12
II. Consecutive sentences were proper
Hysaw contends that the trial court erred in imposing consecutive sentences as to
count 1, accessory to a felony, and count 3, recklessly evading the police. He argues that
the court was required by section 654 to stay one of the terms because both crimes were
committed incident to a single intent and objective during an indivisible course of
conduct.
Vehicle Code section 2800.2 is violated by any person who flees or attempts to
elude a pursuing peace officer by driving a vehicle with a willful or wanton disregard for
the safety of persons or property.
“Every person who, after a felony has been committed, harbors, conceals or aids a
principal in such felony, with the intent that said principal may avoid or escape from
arrest, trial, conviction or punishment, having knowledge that said principal has
committed such felony . . . , is an accessory to such felony.” (§ 32.)
“An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” (§ 654, subd. (a).) In general, section 654 precludes multiple punishments
for a single physical act that violates different provisions of law, although “what is a
single physical act might not always be easy to ascertain. In some situations, physical
acts might be simultaneous yet separate for purposes of section 654.” (People v. Jones
(2012) 54 Cal. 4th 350, 358.) In some cases, it may be appropriate to apply the “intent
and objective” test. (Id. at pp. 359-360.) Under that test, “[w]hether a course of criminal
conduct is divisible and therefore gives rise to more than one act within the meaning of
section 654 depends on the intent and objective of the actor. If all of the offenses were
incident to one objective, the defendant may be punished for any one of such offenses but
not for more than one.” (Neal v. State of California (1960) 55 Cal. 2d 11, 19 (Neal),
disapproved on other grounds by People v. Correa (2012) 54 Cal. 4th 331, 334, 336.)
“Because of the many differing circumstances wherein criminal conduct involving
multiple violations may be deemed to arise out of an ‘act or omission,’ there can be no
13
universal construction which directs the proper application of section 654 in every
instance. [Citation.]” (People v. Beamon (1973) 8 Cal. 3d 625, 636.) Thus, whether a
course of criminal conduct is divisible presents a factual issue for the trial court, and we
will uphold its ruling if supported by substantial evidence. (People v. Coleman (1989) 48
Cal. 3d 112, 162.) “Whether section 654 applies in a given case is a question of fact for
the trial court, which is vested with broad latitude in making its determination.
[Citations.] Its findings will not be reversed on appeal if there is any substantial evidence
to support them. [Citations.] We review the trial court’s determination in the light most
favorable to the respondent and presume the existence of every fact the trial court could
reasonably deduce from the evidence. [Citation.]” (People v. Jones (2002) 103
Cal. App. 4th 1139, 1143.)6
Hysaw notes that the act which made him an accessory after the fact was assisting
Meighan to escape from the scene of the shooting. After Officer Roberson gave chase,
the evading offense began, during which Hysaw’s objective was to avoid the arrest of
both Meighan and himself. Hysaw argues that his assistance to Meighan and then his
similar assistance to both Meighan and himself amounted to a single objective: to
escape. He reasons that the crime of evasion was merely the means of perpetrating the
crime of being an accessory to Meighan’s crime, and that the two offenses were so
closely connected in time that they constituted a single transaction.
The trial court found that Hysaw was an accessory to Meighan’s crimes at the
moment he assisted Meighan’s flight from the scene of the shooting, and would have
been independently prosecuted and liable for that crime if he had pulled over the moment
the motorcycle officer activated his lights. A violation of section 32 is complete the
moment the defendant knew that the felony was committed and did something to help the
perpetrator get away with the crime. (See People v. Nguyen (1993) 21 Cal. App. 4th 518,
536.) It can reasonably be inferred from the circumstances of the shooting that Hysaw
6 Neither Hysaw nor respondent has cited authority with comparable facts, and our
research has revealed no cases which discuss Penal Code sections 654 and 32 in relation
to Vehicle Code section 2800.2.
14
knew that his passenger had discharged a firearm from a motor vehicle in the direction of
the two pedestrians, a felony. (See § 26100, subd. (c). Thus the moment Hysaw drove
away from the scene of the shooting, he was an accessory to that crime.
As Meighan argues, the fact that one crime is technically complete before the
other begins does not necessarily permit multiple punishment arising out of a continuing
transaction. (People v. Bauer (1969) 1 Cal. 3d 368, 377.) Under such circumstances,
only one punishment would be permitted where the offenses were merely the means of
accomplishing or facilitating a single objective. (People v. Jaquette (1967) 253
Cal. App. 2d 38, 49; see People v. Perez (1979) 23 Cal. 3d 545, 551-552.)7 However, the
trial court also found that once the high speed police pursuit began, Hysaw violated
Vehicle Code section 2800.2, a separate crime with the separate intent to personally flee,
although he also continued to violate Penal Code section 32 by assisting Meighan.
Substantial evidence supports the trial court’s finding that Hysaw harbored two
objectives: first, to help Meighan flee from the crime scene, and second, to effect his
own escape. After Meighan fired at the two victims, Hysaw drove away at a normal rate
of speed, and by the time patrol officers heard the radio call about three minutes later, he
had left the scene of the shooting. Hysaw picked up speed on Figueroa Street likely
because he heard the sirens of the two patrol cars in the area as they headed toward the
scene of the shooting. The trial court could reasonably infer that Hysaw’s second,
separate objective to facilitate his own escape began at that moment, or at the moment he
saw Officer Roberson’s motorcycle behind him with lights and siren activated. The trial
court could then reasonably conclude that Hysaw’s reckless attempt to elude the pursuing
officers was not merely the means to assist Meighan to escape.
We reject Hysaw’s reasoning that the dual purpose of assisting himself and
Meighan to escape was a single objective rather than two independent objectives held
7 For example, in Neal, the defendant, whose objective was to kill the victims by
setting fire to their bedroom, could not be punished for both attempted murder and arson,
as arson was the means of accomplishing the single objective. (Neal, supra, 55 Cal.2d at
pp. 19-20.)
15
simultaneously. Regardless, that dual objective ceased when Meighan got out of the car
and Hysaw no longer had a reason to help him by further evasive driving. Hysaw’s
continued reckless attempt to elude officers in violation of Vehicle Code section 2800.2,
plus the fact that he ran from the officers after he collided with a fence, demonstrates that
his sole remaining objective after Meighan left the car was to effect his own escape.
Hysaw thus had both simultaneous and “similar but consecutive objectives” which
permitted multiple punishment. (People v. Latimer (1993) 5 Cal. 4th 1203, 1212, citing
e.g., People v. Harrison (1989) 48 Cal. 3d 321, 334-338 [consecutive]; People v. Coleman
(1989) 48 Cal. 3d 112, 162 [simultaneous].)
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT
16