People v. Carrasco CA4/3 ( 2014 )


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  • Filed 6/18/14 P. v. Carrasco 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    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                         G047903
    v.                                                            (Super. Ct. No. 10NF2522)
    JUAN MANUEL CARRASCO,                                                  OPINION
    Defendant and Appellant.
    Appeal from a judgment of the Superior Court of Orange County,
    M. Marc Kelly, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
    Gregory L. Cannon, 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, Charles C. Ragland and
    Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
    *               *               *
    INTRODUCTION
    A jury convicted Juan Manuel Carrasco of one count (count 2) of assault
    1
    with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) and one count (count 3) of
    2
    active participation in a criminal street gang (§ 186.22, subd. (a)) (section 186.22(a)).
    As to count 2, the jury found true these three sentence enhancement allegations:
    1. Carrasco personally used a firearm in the commission of the offense
    (§ 12022.5, subd. (a)) (the firearm enhancement);
    2. Carrasco committed the offense for the benefit of, at the direction of, or
    in association with a criminal street gang (§ 186.22, subd. (b)(1)) (the gang
    enhancement); and
    3. Carrasco personally inflicted great bodily injury on the victim
    (§ 12022.7, subd. (a)) (the great bodily injury enhancement).
    The trial court stayed execution of the sentence on count 3 pursuant to
    section 654. The court sentenced Carrasco to a term of 32 years in prison, calculated as
    follows: a base term of nine years on count 2; a consecutive term of 10 years on the
    firearm enhancement; a consecutive term of 10 years on the gang enhancement; and a
    consecutive term of 3 three years on the great bodily injury enhancement.
    We conclude the evidence was insufficient to support the conviction for
    active participation in a criminal street gang because the evidence did not show Carrasco,
    a gang member, committed the felony of assault with a semiautomatic firearm with the
    assistance of other gang members, as required by People v. Rodriguez (2012) 
    55 Cal. 4th 1125
    (Rodriguez) for a conviction under section 186.22(a). The Attorney General agrees
    with Carrasco that under section 1170.1, subdivisions (f) and (g), the trial court could not
    impose additional punishments on all three sentence enhancement allegations. We
    1
    Further code references are to the Penal Code.
    2
    The trial court declared a mistrial on count 1 (attempted murder) because the jury was
    unable to reach a verdict on that count, and it was dismissed on the prosecution’s motion.
    2
    therefore reverse the conviction on count 3, reverse the sentences on the enhancement
    allegations, and remand for resentencing.
    FACTS
    We view the evidence in the light most favorable to the verdict and resolve
    all conflicts in its favor. (People v. Ochoa (1993) 
    6 Cal. 4th 1199
    , 1206; People v. Barnes
    (1986) 
    42 Cal. 3d 284
    , 303.)
    On August 12, 2010 about 1:00 p.m., Nicholas E. was standing in the front
    courtyard area of an apartment complex in the City of Anaheim. He was a member of
    Anaheim Jungle City, a street gang in Anaheim. As of that time, Carrasco was an active
    participant in Anaheim Travelers City, another street gang in Anaheim. Anaheim
    Travelers City and Anaheim Jungle City did not “get along.” The apartment complex
    was within the claimed territory of Anaheim Travelers City.
    While Nicholas E. was standing in the apartment courtyard, a white Honda
    Civic drove past. Inside the Honda were three men. They “threw up gang signs” for
    Eastside, a street gang that was a rival of Anaheim Jungle City, and someone in the
    Honda called out, “hey, what’s up, Nicky.” Nicholas E. responded by saying, “what’s
    up.” Nicholas E. told someone standing with him that he did not know anyone in the
    Honda.
    After passing Nicholas E., the Honda parked “half a football field away”
    from him. Nicholas E. went inside the apartment complex to speak with his father and,
    when he returned to the courtyard, the Honda was parked in the same spot. Carrasco got
    out of the Honda and walked over to an unidentified man who was standing across the
    street from Nicholas E. The man standing across the street had been “dogging” (looking
    at) Nicholas E., who did not recognize or know anything about the unidentified man.
    Carrasco and the unidentified man had a brief conversation. During the conversation, the
    3
    unidentified man looked directly, and pointed his finger, at Nicholas E., who looked the
    other way because he “didn’t want to start nothing.”
    Carrasco crossed the street, walked toward Nicholas E., and “hit [him] up,”
    that is, asked him where he was from. Nicholas E. responded, “Jungle City.” Carrasco
    said: “[F]uck Jungle City. This is Travelers.” Nicholas E. challenged Carrasco to a
    one-on-one fight.
    Carrasco replied, “fuck that” and pulled a .32-caliber semiautomatic
    handgun from his waistband. As Nicholas E. ran away, Carrasco squatted and, assuming
    a two-handed shooting stance, shot him in the buttocks.
    Nicholas E. fell to the ground. Carrasco ran up to him, pointed the gun at
    his head, and moved the top slide of the gun back and forth to reload. A man called Joel
    Gonzalez yelled, “[t]hat’s disrespect. You shot him once already in front of his dad.”
    Carrasco ran away.
    Nicholas E. suffered a bullet wound that caused a fracture to his pelvic
    bone and damage to his small intestine, colon, and the area behind the intestines. His
    injuries would have been potentially life threatening if left untreated. At the time of trial,
    Nicholas E. continued to experience pain from the gunshot wound.
    DISCUSSION
    I.
    The Evidence Was Insufficient to Support
    the Conviction on Count 3.
    Carrasco argues the conviction on count 3 (active participation in a criminal
    street gang) must be reversed because there was insufficient evidence that he either aided
    and abetted other gang members in committing a felony or that he directly committed a
    felony with other gang members. Carrasco does not deny he was an active member, but
    argues he acted without the assistance of other gang members.
    4
    Section 186.22(a) imposes punishment on “[a]ny person who actively
    participates in any criminal street gang with knowledge that its members engage in or
    have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers,
    or assists in any felonious criminal conduct by members of that gang.” In 
    Rodriguez, supra
    , 55 Cal.4th at page 1132, the California Supreme Court held a sole perpetrator
    cannot be convicted of violating section 186.22(a). The court concluded 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.” (
    Rodriguez, supra
    , at p. 1132.) The court explained that “section 186.22(a)
    reflects the Legislature’s carefully structured endeavor to punish active [gang]
    participants for commission of criminal acts done collectively with gang members.” (Id.
    at p. 1139.)
    Following Rodriguez, a defendant may be convicted under
    section 186.22(a) for (1) “aiding and abetting other gang members in committing a
    felony” or (2) “directly committing a felony with other gang members.” (
    Rodriguez, supra
    , 55 Cal.4th at p. 1136.)
    There is no question that Carrasco was a gang member and directly
    committed the felony of assault with a semiautomatic firearm; however, the evidence is
    insufficient to establish he did so with other gang members. From the evidence, the jury
    could not reasonably draw the inference that the unidentified man with whom Carrasco
    spoke before shooting Nicholas E. was a member of Anaheim Travelers City gang. No
    evidence was presented about the man—the jury was not given so much as his name.
    The unidentified man had not been in the white Honda, and Nicholas E. did not recognize
    him.
    The Attorney General argues the jury could have reasonably inferred the
    unidentified man was a member of the Travelers City gang because “the crime took place
    in Travelers gang territory, the man initiated the nonverbal hit up by mad dogging
    5
    Nicholas, he talked to Carrasco—a Travelers gang member—and pointed Nicholas out to
    Carrasco, and Carrasco continued the hit up verbally and shot Nicholas when he
    confirmed Nicholas was a member of another gang.” Such circumstances do not
    constitute “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. Albillar (2010) 
    51 Cal. 4th 47
    , 60.) As Carrasco argues, someone does not
    become a gang member merely by being present in the gang’s claimed territory, engaging
    in aggressive behavior, or talking to a gang member. Indeed, at trial, the prosecutor
    conceded, “there’s not enough information” for the jury to find the unidentified man was
    3
    associated with the Travelers City gang.
    II.
    The Trial Court Erred by Imposing Additional
    Punishment on All Three Enhancements.
    The trial court imposed punishment totaling 23 years in prison on the three
    enhancement allegations, in addition to the principal term of nine years on count 2.
    Carrasco argues the court erred by imposing punishment on all three enhancement
    allegations. The Attorney General agrees and states the matter should be remanded for
    resentencing. The parties disagree, however, on which enhancement allegations are
    subject to additional punishment.
    To review, the three enhancement allegations found true by the jury were:
    1. The firearm enhancement (§ 12022.5, subd. (a)).
    2. The gang enhancement (§ 186.22, subd. (b)(1)).
    3. The great bodily injury enhancement (§ 12022.7, subd. (a)).
    The trial court imposed a 10-year sentence on the firearm enhancement. Because the
    gang enhancement was predicated on a violent felony, the trial court imposed a
    3
    The trial was conducted before Rodriguez was handed down. Carrasco concedes the
    jury was correctly instructed on the requirements of section 186.22(a).
    6
    consecutive 10-year sentence under section 186.22, subdivision (b)(1)(C)
    (section 186.22(b)(1)(C)). The trial court also imposed a consecutive three-year sentence
    on the great bodily injury enhancement.
    Section 1170.1, subdivision (f) pertains to sentence enhancements for
    firearm use. It states: “When two or more enhancements may be imposed for being
    armed with or using a dangerous or deadly weapon or a firearm in the commission of a
    single offense, only the greatest of those enhancements shall be imposed for that offense.
    This subdivision shall not limit the imposition of any other enhancements applicable to
    that offense, including an enhancement for the infliction of great bodily injury.”
    (§ 1170.1, subd. (f).)
    In People v. Rodriguez (2009) 
    47 Cal. 4th 501
    , 504, the defendant was
    convicted of three counts of assault with a firearm (§ 245, subd. (a)(2)). The jury also
    found true two enhancement allegations as to each count: that the defendant personally
    used a firearm (§ 12022.5, subd. (a)) and that the assault was a violent felony committed
    for the benefit of a criminal street gang (§ 186.22(b)(1)(C)). (People v. 
    Rodriguez, supra
    ,
    at p. 504.) The California Supreme Court held the trial court erred by imposing
    additional punishments for both of the enhancement allegations. (Id. at pp. 508-509.)
    The court explained: “There is no question that the additional punishments imposed
    under section 12022.5’s subdivision (a) for ‘personally us[ing] a firearm in the
    commission of a felony,’ fall squarely within the limiting language of section 1170.1’s
    subdivision (f). This is why: The additional punishments . . . imposed under
    section 12022.5’s subdivision (a) for defendant’s personal use of a firearm in each of the
    three assaults were, in the words of section 1170.1’s subdivision (f), punishments ‘for . . .
    using . . . a firearm in the commission of a single offense.’ The additional punishments
    . . . under section 186.22’s subdivision (b)(1)(C), the criminal street gang provision, were
    likewise based on defendant’s firearm use. Because two different sentence enhancements
    7
    were imposed for defendant’s firearm use in each crime, section 1170.1’s subdivision (f)
    requires that ‘only the greatest of those enhancements’ be imposed.” (Ibid.)
    People v. Rodriguez is on point except in one respect: In this case, the jury
    also made a true finding on the great bodily injury enhancement, while in People v.
    Rodriguez, a great bodily injury enhancement was not alleged. The significance of this
    distinction lies in the definition of the term “violent felony” in section 186.22(b)(1)(C).
    Under section 186.22(b)(1)(C), “[i]f the felony is a violent felony, as defined in
    subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10
    years.” Under section 667.5, subdivision (c)(8), “‘violent felony’” includes “[a]ny felony
    in which the defendant inflicts great bodily injury on any person other than an
    accomplice” or “any felony in which the defendant uses a firearm which use has been
    charged and proved.”
    Here, the jury found both that Carrasco personally inflicted great bodily
    injury and that he personally used a firearm. When imposing the additional 10-year
    punishment under section 186.22(b)(1)(C), the trial court did not state whether it used
    personal infliction of great bodily injury, use of a firearm, or both, as the violent felony
    on which the additional punishment was predicated. If use of a firearm were the
    predicate violent felony, then People v. 
    Rodriguez, supra
    , 
    47 Cal. 4th 501
    , would control,
    and additional punishments could not be imposed for both the firearm enhancement and
    the gang enhancement.
    If infliction of great bodily injury were the predicate violent felony for the
    additional punishment under section 186.22(b)(1)(C), then additional punishment could
    be imposed for both the firearm enhancement and the gang enhancement without
    punishing Carrasco twice for using a firearm. But, in that case, section 1170.1,
    subdivision (g) would apply. It states: “When two or more enhancements may be
    imposed for the infliction of great bodily injury on the same victim in the commission of
    a single offense, only the greatest of those enhancements shall be imposed for that
    8
    offense. This subdivision shall not limit the imposition of any other enhancements
    applicable to that offense, including an enhancement for being armed with or using a
    dangerous or deadly weapon or a firearm.” (§ 1170.1, subd. (g).)
    When infliction of great bodily injury subjects the defendant to a three-year
    enhancement under section 12022.7, subdivision (a), and is the predicate violent felony
    for the additional punishment under section 186.22(b)(1)(C), a People v. Rodriguez
    situation arises. In People v. Gonzalez (2009) 
    178 Cal. App. 4th 1325
    , 1331-1332, the
    court explained: “Similar to subdivision (f) of section 1170.1, subdivision (g) of the
    same section prohibits the imposition of more than one enhancement ‘for the infliction of
    great bodily injury on the same victim in the commission of a single offense . . . .’ Here,
    appellant’s infliction of great bodily injury on a single victim subjected him to a
    three-year enhancement under section 12022.7, subdivision (a). The same infliction of
    great bodily injury on the same victim also turned appellant’s underlying assault offense
    into a ‘violent felony’ under section 667.5, which subjected him to a 10-year
    enhancement under section 186.22, subdivision (b)(1)(C). In other words, the trial court
    imposed two enhancements for appellant’s infliction of great bodily injury on the same
    victim in the commission of a single offense. Under the reasoning articulated in [People
    v.] Rodriguez, we conclude the trial court should have imposed only the greatest of those
    enhancements as required by section 1170.1, subdivision (g). [Citation.]”
    Thus, under People v. Gonzalez, if infliction of great bodily injury were the
    predicate violent felony for the additional punishment under section 186.22(b)(1)(C),
    then the additional 10-year sentence for the gang enhancement could be imposed
    consecutively to the additional 10-year sentence for the firearm enhancement, but
    additional punishment could not be imposed for the great bodily injury enhancement.
    In conclusion, the trial court in this case erred by imposing additional
    punishment on all three enhancements. Which additional punishments may be imposed
    depends on whether the violent felony serving as the predicate for the additional
    9
    punishment under section 186.22(b)(1)(C) is firearm use or infliction of great bodily
    injury. We leave such sentencing decisions to the trial court on remand.
    DISPOSITION
    The judgment as to count 3 is reversed. The sentences on the three
    sentence enhancement allegations are reversed and the matter is remanded to the trial
    court for resentencing consistent with section 1170.1, subdivisions (f) and (g). In all
    other respects, the judgment is affirmed.
    FYBEL, J.
    WE CONCUR:
    RYLAARSDAM, ACTING P. J.
    BEDSWORTH, J.
    10
    

Document Info

Docket Number: G047903

Filed Date: 6/18/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021