P. v. Abad CA4/3 ( 2013 )

Filed 6/27/13 P. v. Abad CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G046685
v. (Super. Ct. No. 09CF2817)
IVAN DECTOR ABAD, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
W. Michael Hayes, Judge. Affirmed in part and reversed in part.
Jennifer Peabody, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and
Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Ivan Dector Abad shot twice at Erick Paz, but did not hit him.
Defendant was convicted of two counts of attempted murder, two counts of assault with a
firearm, and one count of street terrorism. The jury also found true several sentencing
enhancements, including gang sentencing enhancements. Defendant challenges his
conviction and sentence. We reverse defendant’s conviction for street terrorism, but
otherwise affirm.
First, we conclude that under the California Supreme Court’s recent
decision in People v. Rodriguez (2012) 55 Cal.4th 1125, 1132, defendant’s conviction for
street terrorism must be reversed because defendant was acting alone when attempting to
shoot Paz.
Second, we conclude substantial evidence supports the gang sentencing
enhancements. The gang expert provided sufficient evidence that the Orange Varrio
Cypress (OVC) gang’s primary activities included crimes specified in Penal Code
section 186.22, subdivision (e).
Third, and finally, we conclude Penal Code section 654 does not require
that execution of the sentence be stayed on one of the attempted murder counts.
Substantial evidence supports the trial court’s finding that defendant had separate
objectives and intents when firing two shots in rapid succession at Paz.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
About 5:50 p.m. on November 12, 2009, Paz saw his brother’s friends
standing in front of his apartment. Paz is not a member of a gang, but his brother and his
brother’s friends are members of the OCC gang. Paz saw five Latino males approach his
brother’s friends, saying, “OVC.” Paz’s brother’s friends replied, “OCC.” A fight broke
out, and OVC gang member Ruben Losada was hit over the head and stabbed three times.
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About an hour later, Paz was standing in front of his apartment; he saw
defendant approaching him. Defendant stopped about two feet in front of Paz and asked
what gang he was from. Paz responded he was not from any gang. Defendant stated,
“OVC,” and then walked about 30 feet away from Paz. Defendant then turned, looked at
Paz, put his hand in his sweater, and pulled out a gun. Paz went between two parked
vehicles to protect himself, saw defendant point a gun at him, and heard a gunshot. The
shot hit the back of one of the vehicles that Paz was hiding behind. Defendant, who was
standing on the sidewalk, moved to his right, as if to try to get a better angle to shoot at
Paz. Paz saw defendant point the gun and fire at him again. Paz testified that four or five
seconds passed between the two shots. Defendant ran between two apartment buildings,
and Paz called the police.
Two witnesses to the shooting, who were driving by in a minivan, saw a
Hispanic male, later identified as defendant, holding a pistol while another man hid
behind some cars. The witnesses continued driving. They heard two gunshots in quick
succession, like they were “[s]imultaneous.”
Shell casings were found a few feet apart in a grassy area. Given the
locations of the casings, the shots were fired from the same general area.
About 7:00 p.m. on November 12, a male matching defendant’s description
was seen running through a Home Depot store close to the scene of the shooting. A gun
located along the fence line behind the Home Depot was identified as the gun used in the
attempted shooting of Paz. Defendant’s DNA was identified on clothing found discarded
in the Home Depot men’s restroom.
Defendant was charged in an amended information with two counts of
attempted premeditated and deliberate murder (Pen. Code, §§ 187, subd. (a), 664,
subd. (a)), two counts of assault with a semiautomatic firearm (id., § 245, subd. (b)), and
one count of street terrorism (id., § 186.22, subd. (a)). The information alleged that, with
respect to the attempted murder counts, defendant personally discharged a firearm in
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violation of Penal Code section 12022.53, subdivision (c), and, with respect to the assault
counts, defendant personally used a firearm in violation of Penal Code section 12022.5,
subdivision (a). As to the attempted murder and assault counts, the information alleged
defendant committed the offenses for the benefit of, at the direction of, or in association
with a criminal street gang. (Id., § 186.22, subd. (b).) A jury convicted defendant of all
counts, and found all sentencing enhancement allegations to be true.
The trial court sentenced defendant to a total term of 20 years plus life, with
a minimum parole term of 15 years. Defendant was sentenced to indeterminate terms of
life on both attempted murder counts, which were ordered to be served concurrently, and
to a determinate term of 20 years for the Penal Code section 12022.53, subdivision (c)
sentencing enhancement. Execution of the sentences on the assault and street terrorism
counts and attendant enhancements was stayed, pursuant to Penal Code section 654.
Defendant timely appealed.
DISCUSSION
I.
DEFENDANT’S CONVICTION FOR STREET TERRORISM
MUST BE REVERSED.
To be convicted of street terrorism under Penal Code section 186.22,
subdivision (a), a defendant must actively participate in a criminal street gang, have
knowledge of the gang’s pattern of criminal activity, and willfully commit an act that
“promotes, furthers, or assists in any felonious criminal conduct by members of that
gang.” (Pen. Code, § 186.22, subd. (a).) In People v. Rodriguez, supra, 55 Cal.4th at
page 1132, the California Supreme Court held: “The plain meaning of section 186.22(a)
requires that felonious criminal conduct be committed by at least two gang members, one
of whom can include the defendant if he is a gang member.” In the present case, the
Attorney General concedes that because defendant acted alone in shooting at Paz, there is
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insufficient evidence to support his conviction for street terrorism. We therefore reverse
the street terrorism conviction.
II.
SUFFICIENCY OF THE EVIDENCE OF PRIMARY ACTIVITIES
Defendant argues there was insufficient evidence of the gang’s primary
activities to support the gang sentencing enhancements under Penal Code section 186.22,
subdivision (b).1 “In addressing a challenge to the sufficiency of the evidence supporting
a conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—
evidence that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate
court presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence. [Citations.]” (People v. Kraft (2000) 23
Cal.4th 978, 1053-1054.) The same standard applies to challenges to the sufficiency of
the evidence supporting gang enhancement findings. (People v. Villalobos (2006) 145
Cal.App.4th 310, 321-322.)
A true finding on a Penal Code section 186.22, subdivision (b)(1), gang
sentencing enhancement requires proof of the existence of a criminal street gang. Three
elements must be proven to establish the existence of a criminal street gang: (1) the
existence of an ongoing association involving three or more participants having a
common name or common identifying symbol; (2) that the group has as one of its
primary activities the commission of one or more specified crimes; and (3) that the
group’s members, separately or collectively, have engaged in a pattern of criminal gang
1
Defendant also argues on appeal the evidence of the gang’s primary activities
was insufficient to support the street terrorism charge. As explained ante, the street
terrorism conviction must be reversed for another reason.
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activity. (Pen. Code, § 186.22, subd. (f); People v. Vy (2004) 122 Cal.App.4th 1209,
1222.) Defendant challenges only the second element.
In this case, the evidence of the gang’s alleged primary activities was
provided through the testimony of Detective Miguel Cuenca, the prosecution’s gang
expert. Cuenca testified he had investigated crimes committed by or against OVC gang
members; spoken to OVC gang members, witnesses, and victims of crimes committed by
OVC gang members, members of rival gangs, and other detectives and police officers, all
regarding the OVC gang and its activities; reviewed police reports, California Street
Terrorism Enforcement and Prevention Act (Pen. Code, § 186.20 et seq.) notices, and
field investigation cards for OVC gang members and OVC crimes; and reviewed certified
court documents regarding the criminal convictions of OVC gang members. Cuenca
testified the OVC gang’s primary activities include assault with a deadly weapon,
possession of narcotics (particularly methamphetamine and marijuana) for sale, and
illegal firearm possession. Cuenca also testified about two specific crimes committed by
OVC gang members in order to establish the third element—the pattern of criminal gang
activity.
Defendant contends Cuenca’s testimony was insufficient because he did not
testify the OVC gang members engaged consistently and repeatedly in the criminal
conduct. Defendant relies primarily on In re Alexander L. (2007) 149 Cal.App.4th 605,
in which the court concluded the conclusory testimony of a gang expert as to the gang’s
alleged primary activities was insufficient. In that case, the gang expert’s entire
testimony as to the gang’s primary activities was as follows: “‘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.’” (Id. at p. 611.) Notably, in In re
Alexander L., a panel of this court compared the expert’s testimony unfavorably to
People v. Gardeley (1996) 14 Cal.4th 605, 620, in which the gang expert based his
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opinion about the gang’s primary activities “‘on conversations with the defendants and
with other Family Crip members, his personal investigations of hundreds of crimes
committed by gang members, as well as information from his colleagues and various law
enforcement agencies.’” (In re Alexander L., supra, at p. 613.) Here, the expert’s
opinion as to the OVC gang’s primary activities has the same evidentiary background and
support as did the expert’s opinion in People v. Gardeley. We therefore conclude there
was sufficient evidence of the gang’s primary criminal activities in this case, and affirm
the true findings on the gang sentencing enhancements.
III.
PENAL CODE SECTION 654
Penal Code section 654, subdivision (a) provides, in relevant part: “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.”
“It is well settled that [Penal Code] section 654 protects against multiple
punishment, not multiple conviction. [Citation.] The statute itself literally applies only
where such punishment arises out of multiple statutory violations produced by the ‘same
act or omission.’ [Citation.] However, because the statute is intended to ensure that
defendant is punished ‘commensurate with his culpability’ [citation], its protection has
been extended to cases in which there are several offenses committed during ‘a course of
conduct deemed to be indivisible in time.’ [Citation.] [¶] It is defendant’s intent and
objective, not the temporal proximity of his offenses, which determine whether the
transaction is indivisible. [Citations.] We have traditionally observed that if all of the
offenses were merely incidental to, or were the means of accomplishing or facilitating
one objective, defendant may be found to have harbored a single intent and therefore may
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be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored
‘multiple criminal objectives,’ which were independent of and not merely incidental to
each other, he may be punished for each statutory violation committed in pursuit of each
objective, ‘even though the violations shared common acts or were parts of an otherwise
indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321,
335.)2
Defendant argues he had a single intent and objective in the commission of
the attempted murder counts—to kill Paz. Therefore, defendant argues, execution of the
sentence on one of the counts of attempted murder should have been stayed.
The Attorney General argues that defendant had a separate intent and
objective when firing the two shots at Paz. She relies on People v. Trotter (1992) 7
Cal.App.4th 363 to support her argument. In that case, the defendant fled the scene of a
crime in a commandeered taxicab. (Id. at pp. 365-366.) The defendant fired a gun,
through the back window of the cab, at the pursuing police. (Id. at p. 366.) The
defendant continued driving, and, about one minute later, fired a second shot; he fired a
third shot seconds later. (Ibid.) The defendant was convicted of three counts of assault
on a police officer. (Id. at p. 365.) The trial court sentenced the defendant on two of the
counts, but execution of the sentence on the third count was stayed under Penal Code
section 654. (People v. Trotter, supra, at p. 365.)
The appellate court affirmed. “Defendant’s conduct became more
egregious with each successive shot. Each shot posed a separate and distinct risk to [the
police officer] and nearby freeway drivers. To find section 654 applicable to these facts
2
In People v. Correa (2012) 54 Cal.4th 331, 334, the California Supreme Court
held that Penal Code section 654 does not bar multiple punishment for multiple violations
of the same criminal statute. The court specified that its holding would apply
prospectively only. (People v. Correa, supra, at pp. 344-345.) Because the crimes at
issue in this case occurred before the opinion in People v. Correa was filed, defendant
and the Attorney General agree that it is inapplicable here.
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would violate the very purpose for the statute’s existence. [¶] Furthermore, this was not a
case where only one volitional act gave rise to multiple offenses. Each shot required a
separate trigger pull. All three assaults were volitional and calculated, and
were separated by periods of time during which reflection was possible. None was
spontaneous or uncontrollable. ‘[D]efendant should . . . not be rewarded where, instead
of taking advantage of an opportunity to walk away from the victim, he voluntarily
resumed his . . . assaultive behavior.’ [Citation.] [¶] Defendant, as he was driving,
turned back, pointed, and shot his weapon. He resumed driving, paused for about a
minute, turned back, and shot again. After another few seconds a third shot was fired.
There was thus time prior to each shot for defendant to reflect and consider his next
action. As the court remarked at sentencing, ‘[t]hey were separate acts of violence on
different occasions coming down the freeway and putting different people—putting
different officers in danger.’ [¶] Section 654 is applicable when there is a single ‘act.’
But here, there were three separate acts, not one ‘made punishable in different ways by
different provisions of [the Penal Code] . . . .’ [Citations.] [¶] But, even under the long
recognized ‘intent and objective’ test, each shot evinced a separate intent to do violence
just as each new and separate penetration in [People v.] Harrison[, supra, 48 Cal.3d 321,]
evinced a new and separate intent and objective. It is not the ‘nature’ of the offenses
which governs the applicability of section 654. If this were so, a defendant could be
separately punished when the means used to perpetrate an assault were varied, but could
not be separately punished if the means remained the same. This would lead to absurd
results, and is an approach which Harrison condemns. [Citation.] Accordingly, the court
here did not err in punishing defendant separately for two of the three assaults.” (People
v. Trotter, supra, 7 Cal.App.4th at p. 368, fn. omitted.)
Here, the longest possible time between defendant’s two shots was five
seconds. (Paz testified the shots were four or five seconds apart.) The witnesses who
were driving by the scene testified the shots were “[s]imultaneous . . . [t]hat fast . . .
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[q]uick . . . [¶] . . . [¶] [o]ne [shot] after another,” or in very rapid succession. However,
Paz testified that after firing the first shot, defendant “made a movement like trying to get
an angle to shoot at me again.” Paz later reiterated that defendant did not simply fire two
shots in rapid succession, but actually moved in order to get a better angle from which to
shoot at Paz.
“Q And when you said that before he—when the—when he shot the
second time, you said that he moved a little bit or moved to get a better angle. What did
this person do?
“A Yes. He moved to his right side where there’s some grass.
“Q And when he fired the first shot, was he on the sidewalk or on the grass
area?
“A On the sidewalk.
“Q So when he fired the first shot, he was on the sidewalk, and before he
took the second shot, he moved over to the grass area?
“A Yes.”
If there was time for defendant to change his physical position and re-aim
his gun at Paz, there was sufficient time between the two shots for defendant to reflect
and reconsider. Defendant’s act of physically repositioning himself before firing the
second shot supports a finding that the two shots were separate and independent acts,
even though they were parts of an otherwise indivisible course of conduct. Therefore,
there is sufficient evidence to support a finding that defendant had multiple intents and
objectives when firing the two shots at Paz. The trial court did not err in failing to stay
execution of the sentence on one of the attempted murder counts.
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DISPOSITION
Defendant’s conviction for street terrorism is reversed. In all other
respects, the judgment is affirmed.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
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