People v. Machuca CA2/7 ( 2014 )

Filed 12/17/14 P. v. Machuca CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B249032
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA384881)
v.
GREGORIO MACHUCA and DONTAY
PRICE,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County. Craig J.
Mitchell, Judge. Affirmed as modified.
Mark R. Feeser, under appointment by the Court of Appeal, for Defendant and
Appellant Gregorio Machuca.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and
Appellant Dontay Price.
Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, and Paul M. Roadarmel, Jr. and David A. Voet, Deputy Attorneys General,
for Plaintiff and Respondent.
_______________________
Appellants Gregorio Machuca and Dontay Price were each convicted of one count
of attempted premeditated murder (Pen. Code,1 §§ 664, 187, subd. (a)) with true findings
on gang enhancement allegations (§ 186.22, subd. (b)) and firearm enhancement
allegations (§ 12022.53, subds. (c), (e)). Machuca also was convicted of one count of
possession of a firearm by a felon (§ 12021, subd. (a)), with a separate true finding on a
gang enhancement allegation. On appeal from their judgments of conviction, Machuca
and Price argue the evidence was insufficient to support the gang enhancements, and the
trial court erred in allowing improper gang expert testimony. Price further contends there
was insufficient evidence to support his attempted murder conviction, and the trial court
erred in failing to instruct the jury on the lesser included offense of attempted voluntary
manslaughter. Machuca also asserts the trial court committed certain errors in sentencing
him. We affirm the judgments of conviction for both Machuca and Price, but order the
modification of the trial court’s written sentencing orders for Machuca to correct the
sentencing errors.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. The Charges
The Los Angeles County District Attorney charged Machuca and Price with one
count of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a))
[count one], and Machuca with one count of possession of a firearm by a felon (§ 12021,
subd. (a)) [count two]. As to the attempted murder count, it was alleged that a principal
personally and intentionally discharged a firearm during the commission of the crime (§
12022.53, subds. (c), (e)). As to both counts, it was alleged that the crime was committed
for the benefit of, at the direction of, or in association with a criminal street gang, and
with the specific intent to promote, further, or assist in criminal conduct by gang
members (§ 186.22, subd. (b)). Machuca and Price each pleaded not guilty to the
charges and denied the sentence enhancement allegations.
1 Unless otherwise stated, all further statutory references are to the Penal Code.
2
II. The Evidence at Trial
A. The Shooting
On May 25, 2011, at about 2:40 p.m., Los Angeles Police Detectives Alex Jacinto
and Timothy Stack were riding in an unmarked police vehicle in the area of Venice and
Rimpau Boulevards. As their car was stopped at an intersection, Detective Jacinto saw
Machuca and Price, whom he knew from prior police contacts, leaving a shopping center
parking lot in a silver Ford Focus. Price, who is Black, was the driver, and Machuca,
who is Hispanic, was the passenger. Price was wearing a red hat. Approximately 10 to
15 minutes later, a shooting occurred on Washington Boulevard about two miles from
where Detective Jacinto had seen Machuca and Price.
At about 2:50 p.m., Leon White was driving on Washington Boulevard when he
heard two to four gunshots. White saw a heavyset Hispanic man standing about 25 yards
from White’s car and holding a dark-colored gun in his right hand. The shooter had his
arm raised to shoulder height and was pointing the gun in the direction of a man riding a
bicycle. The man abandoned the bicycle and fled on foot. The shooter then got into a
gray vehicle that headed at a normal rate of speed in the same direction as the man who
dropped the bicycle. White tried to follow the vehicle as he called 911. While speaking
with operator, White heard a second round of gunshots coming from a block away. In his
911 call, White described the suspect vehicle as a gray Ford Focus and the shooter as a
Hispanic man weighing 230 pounds and wearing blue jeans and a dark shirt. In an
interview with the police shortly after the shooting, White described the shooter as a
heavyset Hispanic male and the driver of the vehicle as a Black male. At a field show-up
held later that day, White identified Machuca as the shooter.
At the time of the shooting, Laura Dampf and a friend were sitting inside Dampf’s
parked car on Washington Boulevard. Dampf heard multiple gunshots in close proximity
to her vehicle and crouched down in the driver’s seat, but occasionally peered up through
her car window. Dampf saw a heavyset Hispanic man in a black charcoal shirt chasing
another Hispanic man on a bicycle. The man being chased abandoned the bicycle and ran
away, and the other man got into a grey car that was stopped near Dampf’s vehicle.
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Dampf could see the silhouette of the driver, who was a smaller, possibly African-
American man. As the gray car sped away, Dampf wrote down its license plate number
and then called 911. Dampf told the 911 operator that she heard approximately five shots
and described both the suspect and the victim as Hispanic men wearing dark clothing.
She also said that the suspect got into a small silver or gray car and recited the license
plate number. In an interview with the police at the scene, Dampf described the shooter
as a heavyset Hispanic man and the driver as a Black male. She was unable to positively
identify Machuca at a field show-up held later that day, but felt that he could have been
either the shooter or the victim based on his physique.
Three unidentified individuals also called 911 to report the shooting. One caller
reported hearing five to eight gunshots down the street from his home. Another caller
heard six rapid-fire shots and saw two Hispanic men running on Washington Boulevard.
He then heard additional gunshots from further down the street. The third caller reported
seeing a heavyset Hispanic man trying to shoot another Hispanic man on a bicycle as the
shooter chased him down the street.
B. The Police Investigation
Approximately 15 minutes after seeing Machuca and Price leave the shopping
center parking lot in a Ford Focus, Detectives Jacinto and Stack received a police radio
broadcast of the shooting, including a description of the suspect vehicle. As they were
driving toward the scene, Detective Jacinto spotted a Ford Focus parked in the driveway
of Machuca’s residence, which was less than 100 feet from where the second round of
shots was fired. The detectives decided to stop at the residence to investigate. As they
approached the driveway, Detective Jacinto saw a Black man running from the back of
the residence. The man jumped over a wall and was able to flee on foot. Detective
Jacinto did not see the man’s face, but observed that he was similar to Price in height and
built and was wearing a red hat. Detective Jacinto placed his hand on the hood of the
Ford Focus, which was warm.
4
All of the occupants of the residence, including Machuca, were ordered outside.
After obtaining consent to search the residence, the police recovered a long-sleeved black
shirt and a short-sleeved black shirt from Machuca’s bedroom, and two bullets from a
dresser drawer. Machuca was arrested and taken into custody. Later that day, the
investigating officers returned to the residence with Machuca, who told them to look
inside the air filter compartment of a pick-up truck parked in the driveway. The officers
recovered a Smith & Wesson nine-millimeter semi-automatic handgun with an empty
magazine from the air filter compartment, and a gun holster from the garage.
Dampf later identified the Ford Focus found at Machuca’s residence as the car that
she had seen during the shooting. The police ran the license plate number on the vehicle
in the Department of Motor Vehicles (DMV) database, which showed that the registered
owner of the Ford Focus was Price’s mother.2 In a subsequent search of the vehicle, the
police recovered a DMV registration card in Price’s name.
Shortly after the shooting, the police found six spent nine-millimeter casings on
the ground near the corner of Washington Boulevard and Thurman Avenue. Another six
casings and two bullet fragments were found about four blocks away near the corner of
Washington Boulevard and Carmona Avenue. The casings were dented due to traffic in
the area. Approximately 10 feet from the location of the second set of casings, the police
observed bullet impact marks on a pole and wrought iron gate, and recovered a bullet
from a parked car with a shattered window. The spent casings and bullet fragments were
later matched to the firearm that was seized from the truck at Machuca’s residence. The
police were not able to identify the victim of the shooting, nor did they find any evidence
of injury at the scene.
The day after the shooting, the police collected video surveillance footage from a
business in the area. The video footage showed a Hispanic man believed to be the victim
riding a bicycle on Washington Boulevard while looking over his shoulder. The man
2 The license plate number that Dampf reported to the police was 4GDZ756. The
license plate number of the Ford Focus found at Machuca’s residence was 4JDZ756.
5
then turned and rode his bicycle in the opposite direction as he continued to look to the
rear. After veering into the street and almost colliding with a vehicle, the man dropped
the bicycle and fled on foot. The video footage also showed another Hispanic man whom
the police believed to be Machuca walking in the same direction as the victim while
holding an object in his hand. A short time later, a car resembling a Ford Focus drove
into an alley near Washington Boulevard, and then drove back out of the alley as soon as
Machuca crossed the street.
C. The Gang Evidence
Los Angeles Police Officer Sean Stablewski testified as an expert on the 18th
Street Gang. He had been a sworn police officer for eight years and a gang officer for
four years. In 2008, after two years on patrol, Officer Stablewski was assigned to the
gang enforcement detail for the Southwest Division where his primary duties were to
monitor and suppress criminal activity by the 18th Street Gang. The following year, he
transferred to the gang enforcement detail for the Wilshire Division where he continued
to focus on the criminal activities of the 18th Street Gang. As a gang officer, Officer
Stablewski interacted with gang members on a daily basis, investigated gang-related
crimes, and studied gang culture. He estimated that he had over a thousand contacts with
gang members, including both criminal arrests and consensual encounters in the field.
Officer Stablewski testified that gangs are highly territorial and fight to claim
certain geographic areas as their own. Gangs members mark their territory by writing
graffiti that identifies their gang or moniker, and they disrespect rival gangs by defacing
their rivals’ graffiti. Fear, respect, and reputation are important aspects of gang culture.
A gang that commands respect is able to conduct illegal activities without interference
from rival gangs or the surrounding community. A gang builds its reputation and gains
respect by committing crimes and instilling fear in its rivals and community residents.
Gangs typically operate under a hierarchical structure that is comprised of “soldiers” who
commit crimes, “shot callers” who direct the gang’s activities, and “original gangsters”
who resolve disputes with rival gangs.
6
According to Officer Stablewski, the 18th Street Gang is one of the largest gangs
in the world and has 8,000 to 12,000 members in Los Angeles. It is a predominantly
Hispanic gang, but includes some Black and other non-Hispanic members. While the
gang does not identify with a specific color, its members use the number “18” in various
combinations as a common symbol in their tattoos, clothing, graffiti, and hand gestures.
The gang claims an approximately five-square-mile area in Los Angeles as its territory,
and its main rivals are gangs that border that geographic area. The shooting in this case
took place in the territory claimed by the 18th Street Gang. Officer Stablewski opined
that 18th Street gang members, both individually and collectively, have engaged in a
pattern of criminal activity, and that the primary activities of the gang include murder,
attempted murder, robbery, and assault. Specific crimes committed by 18th Street gang
members in the past included grand theft and unlawful taking of a vehicle in September
2008 and felony vandalism in July 2008.
Officer Stablewski was personally familiar with Machuca based on their prior
contacts in the field. Machuca had been a member of the 18th Street Gang for about 10
years and went by the moniker “Al Capone.” He had a number of gang-related tattoos on
his arms, hands, legs, chest, back, and head, and had admitted his membership in the 18th
Street Gang to Officer Stablewski during a stop in 2009 or 2010. Officer Stablewski was
familiar with Price based on information obtained from other officers. Price had been a
member of the 18th Street Gang for over 15 years and went by the moniker “Demon.”
He had prominent gang-related tattoos on his head, neck, chest, abdomen, and forearm,
and had admitted to other officers that he was a member of the 18th Street Gang. In
photographs presented at trial, both Machuca and Price had 18th Street Gang tattoos on
their backs that were in the process of being completed, which Officer Stablewski opined
showed their active membership in the gang.3
3 Three other police officers testified about their prior contacts with Machuca or
Price. Detective Marla Kiley stated that, while working as a gang officer in June 2005,
she had contact with Price at a jail facility, and she knew both Price and Machuca to be
members of the 18th Street Gang. Officer Hector Marquez testified that, in August 2009,
7
When presented with a hypothetical question based on the facts of the case,
Officer Stablewski opined that the shooting was committed for the benefit of a criminal
street gang, and with the specific intent to promote, further, or assist in criminal conduct
by gang members. Officer Stablewski testified that the shooting would benefit the gang
by allowing it to protect its claimed territory while instilling fear and intimidation within
the community. The crime also would benefit the perpetrators by enhancing their
reputation in the gang and earning the respect of their fellow gang members. Officer
Stablewski noted that the shooting occurred in broad daylight in gang territory, and after
the first shots were fired, the perpetrators continued pursuing the victim in their car and
then fired a second round of shots at him.
On cross-examination, Officer Stablewski was presented with an alternative
hypothetical in which both the shooter and the victim were young Hispanic men in dark
clothing, but their membership in a gang was unknown and there were no gang signs,
colors, or names used during the shooting. Officer Stablewski testified that if neither the
shooter nor the victim was a known gang member and there were no other indicia of gang
involvement, he could not conclude that the shooting was for the benefit of a gang. On
the other hand, if the shooter was a known gang member and the crime occurred in gang
territory, then the shooting would have been for the benefit of the gang even if the
victim’s gang membership was unknown. While acknowledging that not every crime
committed by a gang member was intended to benefit his or her gang, Officer Stablewski
explained that he based his opinion that the shooting in the prosecution’s hypothetical
was gang-related on the totality of circumstances presented.
he observed Price and another known 18th Street Gang member in a gray Ford Focus in
the gang’s territory. Officer Timothy Estevez recounted that, based on his experience as
a gang officer, he was familiar with Machuca’s residence, which was a place where gang
members were known to congregate.
8
III. The Verdict and Sentencing
The jury found both Machuca and Price guilty of attempted willful, deliberate, and
premeditated murder (§§ 664, 187, subd. (a)), and found Machuca guilty of possession of
a firearm by a felon (§ 12021, subd. (a)). As to the attempted murder count, the jury
made true findings on the firearm enhancement allegations (§ 12022.53, subds. (c), (e)),
and as to both counts, the jury made true findings on the gang enhancement allegations
(§ 186.22, subd. (b)). In a bifurcated proceeding, Price admitted to one prior serious or
violent felony conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Price was
sentenced to state prison for an aggregate term of 30 years to life. Machuca was
sentenced to state prison for an indeterminate term of 15 years to life and a determinate
term of 23 years and four months. Both Machuca and Price thereafter filed timely notices
of appeal.
DISCUSSION
I. Sufficiency of the Evidence Supporting the Gang Enhancements
On appeal, Price and Machuca join in challenging the sufficiency of the evidence
supporting the jury’s true findings on the gang enhancements alleged as to each count.
They specifically contend that the prosecution failed to meet its burden of proving that
the 18th Street Gang was a criminal street gang within the meaning of section 186.22,
subdivision (b) because the testimony of the prosecution’s gang expert was insufficient
to establish the primary activities element of the statute. We conclude that the jury’s
gang enhancement findings were supported by substantial evidence.
A. Relevant Law
The California Street Terrorism Enforcement and Prevention Act was enacted by
the Legislature with the express purpose “to seek the eradication of criminal activity by
street gangs.” (§ 186.21.) One component of the statute is a sentence enhancement
provision for felonies 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).) A “criminal street gang”
9
is defined as “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 the criminal acts enumerated in [§ 186.22, subd. (e)], having a common name
or common identifying sign or symbol, and whose members individually or collectively
engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).)
To prove a gang is a “criminal street gang,” the prosecution must establish that the
gang has as one of its “primary activities” the commission of one or more of the crimes
enumerated in section 186.22, subdivision (e), and has engaged in a “pattern of criminal
gang activity” by committing two or more such “predicate offenses.” (§ 186.22, subds.
(e), (f); see also People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).) “The
testimony of a gang expert, founded on his or her conversations with gang members,
personal investigation of crimes committed by gang members, and information
obtained from colleagues in his or her own and other law enforcement agencies, may be
sufficient to prove a gang’s primary activities. [Citations.]” (People v. Duran (2002)
97 Cal.App.4th 1448, 1465; see also Gardeley, supra, at pp. 619-620 [expert testimony
“provided much of the evidence necessary to establish that the [defendant’s gang] met the
[gang statute’s] definition of a “criminal street gang’”].) A jury’s true finding on a gang
enhancement is generally reviewed on appeal for substantial evidence. (People v.
Albillar (2010) 51 Cal.4th 47, 59-60.)
B. The Gang Enhancements Were Supported by Substantial Evidence
At the trial of Machuca and Price, the prosecution offered the expert testimony of
Officer Stablewski to prove the primary activities element of the gang enhancement
allegations. The prosecutor initially asked Officer Stablewski what “kind of crimes”
were committed by members of the 18th Street Gang, to which he responded: “Murder,
attempt[ed] murder, robbery, assault, other felony crimes. They’re not picky about what
they do. If it’s illegal, they have . . . probably done it once.” Later in the testimony, the
prosecutor and Officer Stablewski engaged in the following exchange:
10
[Prosecutor]: In your opinion, have members of 18th Street individually or collectively
engaged in a pattern of criminal gang activity?
[Officer Stablewski]: Yes.
[Prosecutor]: And in your opinion, what are those primary activities?
[Officer Stablewski]: Primary activity of a gang member, again, is the commission of
crimes, murder, attempt[ed] murder, robbery, assault, and other felony crimes.
[Prosecutor]: And you’re specifically referring to 18th Street?
[Officer Stablewski]: Yes.
[Prosecutor]: What are you basing that opinion on?
[Officer Stablewski]: My personal duties as a police officer and handling the gang for
four years.
Appellants argue the evidence was insufficient to establish the primary activities
of the 18th Street Gang because Officer Stablewski did not describe any specific offenses
that 18th Street gang members consistently and repeatedly committed, but rather testified
in conclusory terms that any gang member’s primary activity was the commission of
crimes. In making this argument, however, Appellants are focusing on an isolated and
incomplete portion of Officer Stablewski’s testimony. The question posed by the
prosecutor specifically asked about the primary activities of the 18th Street Gang.
Although Officer Stablewski initially responded that the “primary activity of a gang
member . . . is the commission of crimes,” he then immediately identified those crimes
as including “murder, attempt[ed] murder, robbery, [and] assault.” In response to the
prosecutor’s next question, Officer Stablewski further clarified that his testimony about
the primary activities was “specifically referring” to the 18th Street Gang, and not simply
to any gang member. He also explained that his opinion about the gang’s primary
activities was based on his years of experience as a gang officer dealing with the 18th
Street Gang. As this Court observed in People v. Margarejo (2008) 162 Cal.App.4th
102, 107, “[o]rdinary human communication often is flowing and contextual. Jurors
know this. Repetitive and stilted responses make up one kind of direct examination, but
not the only kind.” When Officer Stablewski’s testimony is considered as a whole, it is
11
sufficient to establish that members of the 18th Street Gang consistently and repeatedly
committed one or more of the crimes enumerated in section 186.22, subdivision (e).
Appellants also assert that Officer Stablewski’s testimony lacked an adequate
foundation because he did not connect his knowledge as a gang enforcement officer to
the primary activities of the 18th Street Gang. Appellants note that Officer Stablewski
did not identify any specific instances of the gang’s primary activities, nor did he
describe when, where, or how he obtained the information about those particular crimes.
Contrary to Appellants’ claim, however, the foundation for Officer Stablewski’s opinion
on the 18th Street Gang’s primary activities was well-established. As described by
Officer Stablewski, he had been a sworn police officer for eight years and a gang
enforcement officer for four years. His primary job duty as a gang enforcement officer
was to monitor and suppress criminal activity by the 18th Street Gang. His work
experience included numerous custodial and non-custodial interviews with gang
members, probation and parole compliance checks of residences occupied by gang
members, and investigations of gang-related crimes. He also gathered gang intelligence
on a daily basis in the field through his personal contacts with gang members, many of
whom spoke to Officer Stablewski about their gang’s culture, rivalries, and activities.
Officer Stablewski thus testified to having extensive training and experience in
gang crime and culture, thereby demonstrating the special knowledge, skill, experience
and training sufficient to qualify him as an expert. (People v. Martinez (2008) 158
Cal.App.4th 1324, 1330 [gang expert’s “eight years dealing with the gang, including
investigations and personal conversations with members, and reviews of reports
suffices to establish the foundation for his testimony” about the gang’s primary
activities]; People v. Duran, supra, 97 Cal.App.4th at p. 1465 [gang expert's “personal
experience in the field gathering gang intelligence, contacting gang members, and
investigating gang-related crimes” provided adequate foundation for his testimony about
the gang’s primary activities].) The mere fact that Officer Stablewski failed to provide a
specific example of a murder, robbery, or assault committed by a particular 18th Street
gang member in describing the gang’s primary activities did not render his testimony
12
conclusory or beyond the scope of his expertise. “‘“‘Where a witness has disclosed
sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of
the degree of his knowledge goes more to the weight of the evidence than its
admissibility.’” [Citation.]’ [Citation.]” (People v. Eubanks (2011) 53 Cal.4th 110, 140.)
Under these circumstances, Appellants’ reliance on In re Alexander L. (2007) 149
Cal.App.4th 605, is misplaced. In that case, the Court of Appeal reversed a true finding
on a gang enhancement on the ground that the gang expert’s testimony was insufficient to
establish the primary activities element. When asked about the primary activities of the
defendant’s gang, the expert testified, “‘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.) However, the expert did not explain the basis for
his knowledge and conceded on cross-examination that the vast majority of crimes
involving the gang were graffiti-related. (Id. at pp. 611-612.) As this Court explained
in People v. Margarejo, supra, 162 Cal.App.4th at p. 107-108, the expert testimony in
Alexander L. was insufficient to support a gang enhancement finding because the witness
did not identify the gang’s primary activities, equivocated on direct examination, and
contradicted himself on cross-examination. Officer Stablewski’s testimony, in contrast,
did not suffer from these deficiencies, and when considered as a whole, was sufficient to
prove the primary activities element of the gang enhancement allegations. The jury’s true
findings on the gang enhancements were therefore supported by substantial evidence.
II. Admission of Gang Expert Testimony
Price and Machuca also argue that the trial court violated their constitutional right
to due process by admitting improper expert testimony that usurped the function of the
jury. In particular, they assert that the trial court erred in allowing Officer Stablewski to
testify on the ultimate issue of Appellants’ subjective intent in committing the charged
crimes. This argument, however, is not supported by the record.
13
A. Relevant Law
Gang expert testimony may properly be admitted to prove motive and intent.
(People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1513; People v. Gonzalez (2005)
126 Cal.App.4th 1539, 1549-1551; People v. Valdez (1997) 58 Cal.App.4th 494, 507-
509.) Indeed, expert testimony repeatedly has been deemed admissible to prove the
motivation for a particular crime and whether the crime was committed to benefit,
promote, or assist a gang. (People v. Garcia, supra, at p. 1513; People v. Gonzalez,
supra, 126 at p. 1550; People v. Valdez, supra, at p. 509.) Although a gang expert may
not offer an opinion on a specific individual’s subjective knowledge or intent, the culture
and habits of criminal street gangs are appropriate subjects for expert testimony and
therefore admissible. (People v. Gonzalez (2006) 38 Cal.4th 932, 946-947 (Gonzalez);
Gardeley, supra, 14 Cal.4th at pp. 617-618.) In addition, a gang expert generally is
allowed to provide opinion testimony on the basis of facts presented in hypothetical
questions that ask the expert to assume their truth. (People v. Vang (2011) 52 Cal.4th
1038, 1045 (Vang); Gonzalez, supra, at pp. 946-947; Gardeley, supra, at pp. 617-618.)
“‘Testimony in the form of an opinion that is otherwise admissible is not objectionable
because it embraces the ultimate issue to be decided by the trier of fact.’ [Citations.]”
(Vang, supra, at p. 1048.)
In Vang, the California Supreme Court reaffirmed its prior holdings that a gang
expert may properly testify that a particular crime was committed for the benefit of a
gang even though such testimony embraces an ultimate issue to be decided by the jury.
(Vang, supra, 52 Cal.4th at p. 1048.) As the Supreme Court explained, while a gang
expert may not testify whether the defendant committed a particular crime for gang
purposes, the expert “properly could . . . express an opinion, based on hypothetical
questions that tracked the evidence, whether the [crime], if the jury found it in fact
occurred, would have been for a gang purpose. ‘Expert opinion that particular criminal
conduct benefited a gang’ is not only permissible but can be sufficient to support the
Penal Code section 186.22, subdivision (b)(1), gang enhancement. [Citation.]” (Ibid.)
The Supreme Court acknowledged that the expert’s opinion, if found to be credible,
14
could “cause the jury to find the [crime] was gang related,” but reasoned that “‘this
circumstance makes the testimony probative, not inadmissible.’” (Id. at pp. 1048-1049.)4
B. The Gang Expert Testimony Was Properly Admitted
Over Appellants’ objection at trial, the prosecutor posed the following question
to Officer Stablewski: “Assume that two 18th Street gang members are in 18th Street
Gang territory. And this is back on May 25th, 2011. And one of the 18th Street Gang
members is the driver of a car. And the other 18th Street Gang member is a passenger,
the front passenger in the same car. There’s no one else in that car being just the two of
them. Assume it’s around 10 until 3:00 in the afternoon. Further assume that the
defendant who’s driving―or, I’m sorry, the individual, 18th Street member who’s
driving the car, pulls up to a corner in the 18th Street Gang territory. He pulls up, he
stops the car, and the passenger gets out, opens the door and pulls out a nine-millimeter
handgun. And then he fires that handgun six times at a male Hispanic who’s on a bike.
That male Hispanic takes off. The shooter gets back in the same car and shuts the door.
That car then takes off, and it follows the male Hispanic who is on the bike. . . . I want
you to assume further that the same car [that] is then being driven by the same person
stops and the same shooter gets out, pulls out a gun, and fires six more times at the same
male Hispanic. The shooter then gets back inside of the same car and the same driver
drives away. Do you have an opinion as to whether or not that crime was committed at
4 In Vang, the Supreme Court disapproved of the case primarily relied on by
Appellants―People v. Killebrew (2002) 103 Cal.4th 644 (Killebrew)―to the extent that
Killebrew could be read “as barring, or even limiting, the use of hypothetical questions.”
(Vang, supra, 52 Cal.4th at p. 1047, fn. 3.) As the Supreme Court explained, Killebrew
“overlooked the critical difference between an expert’s expressing an opinion in response
to a hypothetical question and the expert’s expressing an opinion about the defendants
themselves. Killebrew stated that the expert in that case ‘simply informed the jury of his
belief of the suspects’ knowledge and intent on the night in question, issues properly
reserved to the trier of fact.’ [Citation.] But to the extent the testimony responds to
hypothetical questions, as in this case (and, it appears, in Killebrew itself), such
testimony does no such thing.” (Id. at p. 1049.)
15
the benefit of, at the direction of, or in association with a criminal street gang with the
specific intent to promote, or further, or assist criminal conduct by gang members?”
In response to the prosecutor’s question, Officer Stablewski testified as follows:
“I would believe that that situation would benefit the gang because of not knowing the
day of the week, but I believe it was a weekday, and using the time of day, that would
definitely cover the fear, intimidation part. That’s when two people in a car are driving
around at 3:00 in the afternoon, and they’re going to approach a male Hispanic and
attempt to shoot at him, get back in the car and continue to shooting, that to me it
definitely puts both people wanting to be there. Nobody would continue driving and,
hey, let’s try and get him again, if that driver of the car and that shooter inside the car,
they don’t want to be there. That goes back to protecting the territory, it happened within
a gang area, the time of day, and pretty much the no fear factor to shoot somebody at 3:00
in the afternoon, right before rush hour traffic, it definitely would be in benefit of the
gang due to the fear and intimidation factor within the community. And then what also
you have, is you have respect of your peers. You’re going to show your loyalty to the
gang and you’re going to get new respect that you never had because they would talk
about it like I’m talking about it, that, a, it’s crazy to shoot someone at 3:00 in the
afternoon, they’re going to look up to them, like, wow, these guys are pretty down for our
cause here. They’re definitely defending, doing their job, and it’s going to be an example
to newer members that this happened and this happened, and these guys are setting the
bar pretty high for younger members. So I go to the fear and intimidation, the respect
and the loyalty, and protecting territory, and this person possibly could have been a rival
member.”
Appellants contend that the trial court erred in admitting this testimony. The
record reflects, however, that the prosecutor asked Officer Stablewski a permissible fact-
based hypothetical question that was designed to elicit his expert opinion as to whether
the crimes at issue were committed for the benefit of the 18th Street Gang, and with the
specific intent to promote, further, or assist in criminal conduct of the gang. In presenting
this hypothetical scenario, the prosecutor did not pose any questions about the particular
16
state of mind of Machuca or Price, or whether either of them had any specific knowledge
or intent. In response to the prosecutor’s inquiry, Officer Stablewski testified that, based
on the facts posed in the hypothetical, it was his opinion that the crime described would
have been committed for the benefit of the gang and with the specific intent to promote
criminal gang conduct. Officer Stablewski did not express an opinion as to whether
Machuca or Price actually committed the crime, or took any action for the benefit of
their gang. Rather, Officer Stablewski opined that a shooting committed in the manner
described by the prosecutor’s hypothetical would have been done for gang purposes.
Appellants claim that the prosecutor’s hypothetical question was designed to elicit
an improper opinion on their subjective intent because it included a specific reference to
the date of the shooting and the name of their gang. However, as the Supreme Court held
in Vang, “[i]t is required, not prohibited, that hypothetical questions be based on the
evidence,” and “[t]he questioner is not required to disguise the fact the questions are
based on that evidence.” (Vang, supra, 52 Cal.4th at p. 1041.) Thus, hypothetical
questions are not improper because “they tracked the evidence in an manner that was
only ‘thinly disguised,’” and “it is not a legitimate objection that the questioner failed to
disguise the fact the question was based on the evidence.” (Id. at pp. 1045, 1051.) In this
case, there is no dispute that the hypothetical question posed by the prosecution which
Officer Stablewski was permitted to answer was rooted in the evidence presented at trial.5
Appellants also argue that the prosecutor’s hypothetical question was improper
because the prosecutor “asked whether appellant[s] had the specific intent to benefit the
gang and Officer Stablewski testified they did.” This assertion is not supported by the
5 Appellants point out that, after Officer Stablewski responded to the hypothetical
question by opining that the shooting would have been committed for the benefit of the
gang, the prosecutor asked how it would affect his opinion if he assumed that the victim
was a rival gang member. While Appellants are correct that there was no evidence that
the victim was a gang member, they erroneously state that the trial court overruled their
objection to this follow-up question. The record reflects the trial court actually sustained
the objection and Officer Stablewski never answered the question.
17
record. It is true that the prosecutor made one indirect reference to Price when she stated:
“Further, assume that the defendant who’s driving―or, I’m sorry, the individual, 18th
Street member who’s driving the car, pulls up to a corner in 18th Street Gang territory.”
However, the prosecutor immediately apologized for the misstatement and made no
further reference to Price or Machuca in posing the hypothetical. Officer Stablewski also
did not refer to Price or Machuca in responding to the question. Therefore, when
considered in its entirety, this line of inquiry does not reflect an attempt by either the
prosecutor to elicit, or by Officer Stablewski to provide, an opinion on Appellants’
subjective knowledge or intent. Nor was Officer Stablewski’s testimony on the subject
tantamount to expressing an opinion as to Appellants’ guilt. Under these circumstances,
Officer Stablewski did not invade the province of the jury in proffering his opinion, and
the trial court did not err in admitting his expert testimony.
III. Failure to Instruct on Attempted Voluntary Manslaughter
Price asserts that the trial court erred in failing to instruct the jury sua sponte on
attempted voluntary manslaughter as a lesser included offense of attempted murder. He
argues that an attempted voluntary manslaughter instruction was warranted in this case
because there was evidence that the shooting was committed in a heat of passion or in
imperfect self-defense. This claim fails, however, because the evidence was insufficient
to support a voluntary manslaughter instruction under either theory.
A. Relevant Law
“[I]t is the [trial] ‘court’s duty to instruct the jury not only on the crime with
which the defendant is charged, but also on any lesser offense that is both included in
the offense charged and shown by the evidence to have been committed.’ [Citation.]”
(People v. Gutierrez (2009) 45 Cal.4th 789, 826.) “Conversely, even on request, the
court ‘has no duty to instruct on any lesser offense unless there is substantial evidence to
support such instruction’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
Substantial evidence “is not merely ‘any evidence … no matter how weak’ [citation],
but rather ‘“evidence from which a jury composed of reasonable [persons] could …
18
conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]”
(People v. Cruz (2008) 44 Cal.4th 636, 664; see also People v. Burney (2009) 47 Cal.4th
203, 250 [“‘[t]o justify a lesser included offense instruction, the evidence supporting the
instruction must be substantial — that is, it must be evidence from which a jury . . . could
conclude that the facts underlying the particular instruction exist’”].) “On appeal, we
review independently whether the trial court erred in failing to instruct on a lesser
included offense. [Citation.]” (People v. Booker (2011) 51 Cal.4th 141, 181.)
Voluntary manslaughter is “the unlawful killing of a human being without malice
. . . upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) “Heat of passion arises
if, ‘“at the time of the killing, the reason of the accused was obscured or disturbed by
passion to such an extent as would cause the ordinarily reasonable person of average
disposition to act rashly and without deliberation and reflection, and from such passion
rather than from judgment.”’ [Citation.]” (People v. Beltran (2013) 56 Cal.4th 935,
942.) “‘The heat of passion requirement for manslaughter has both an objective and a
subjective component. [Citation.] The defendant must actually, subjectively, kill under
the heat of passion,’” and the “‘heat of passion must be due to “sufficient provocation.”’”
(People v. Gutierrez (2002) 28 Cal.4th 1083, 1143-1144.) Voluntary manslaughter,
based on imperfect self-defense, is committed when the defendant kills in “‘[a]n honest
but unreasonable belief that it is necessary to defend oneself from imminent peril to life
or great bodily injury.’” (People v. Rogers (2006) 39 Cal.4th 826, 883.)
B. The Evidence Did Not Support a Voluntary Manslaughter Instruction
Price contends that there was sufficient evidence to support an instruction on
attempted voluntary manslaughter because one of the eyewitnesses to the crime reported
that the victim was also firing a weapon. The record reflects that the prosecution
introduced the tape recordings and transcripts of five 911 calls made during the incident.
In one of the three anonymous calls, the caller told the 911 operator that she saw a man
running down the street, chasing another man on bicycle, and shooting a gun at him. She
described the shooter as a heavyset Hispanic man in his twenties wearing a black shirt
19
and blue jeans. She stated that the shooter “was running” and “it seemed like he was
going to shoot a guy on a bike.” When asked by the 911 operator to describe the man on
the bike, the caller stated as follows: “The guy on the bike? He looked like he could
have been Hispanic too. I – his back was to me, but he was shooting, and he had on a
black shirt too.”
Price claims that this statement from the anonymous caller reasonably could have
supported a finding by the jury that the victim was also armed and shooting at Machuca.
We disagree. The transcript of the 911 call, read in its entirety, describes a single
shooter ―the man who was on foot chasing the man on the bicycle. The caller
repeatedly told the 911 operator that the man on foot was the person committing the
shooting. She initially described that man as “going down the street chasing somebody,
shooting ‘em,” and then clarified that the shooter “was running” and “it seemed like he
was going to shoot a guy on a bike.” She later reiterated that the man who had the gun
was “running down the street” and “trying to shoot” the man on the bike. Although the
caller made one statement that “he was shooting” as she gave a description of the man on
the bicycle, she also said that “his back was to [her].” She did not make any other
reference in the call to the victim carrying or shooting a gun.
In addition, none of the other witnesses who saw the man on the bicycle indicated
that he was armed with a gun or shooting at the man who was chasing him. Instead, the
witnesses similarly reported that the man being chased abandoned his bicycle after the
first round of shots was fired and ran from the shooter. The video surveillance footage
also did not show the victim holding or firing a weapon. It merely showed him on a
bicycle heading in one direction as he looked back and forth over his shoulder, suddenly
reversing direction as he continued to look to the rear, and then dropping his bicycle and
fleeing on foot. While Price argues that the video footage supports an inference that the
shooting happened suddenly, it does nothing to demonstrate that the victim provoked
Machuca into firing his weapon or caused Machuca to fear for his life. Furthermore, all
of the casings and bullet fragments that were recovered from the scene of the shooting
were matched to the gun found at Machuca’s residence. None of the evidence pointed to
20
the presence of a second firearm at the scene, or to any act of provocation or threat of
violence by the victim. Because there was no substantial evidence to support a finding
that Machuca fired his weapon in a heat of passion or in self-defense, the trial court did
not err in failing to give an attempted voluntary manslaughter instruction.
IV. Sufficiency of the Evidence Supporting Price’s Attempted Murder Conviction
Price also challenges the sufficiency of the evidence supporting his conviction for
attempted murder. He specifically claims that the evidence was insufficient to support a
finding that he aided and abetted the shooting by serving as the driver of the getaway car.
We conclude that there was substantial evidence to support Price’s conviction.
A. Relevant Law
To assess a claim of insufficient evidence in a criminal case, “we review the whole
record to determine whether any rational trier of fact could have found the essential
elements of the crime or special circumstances beyond a reasonable doubt. [Citation.]
The record must disclose substantial evidence to support the verdict - i.e., 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.] In applying this test, we review
the evidence in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
“Penal Code section 31, which governs aider and abettor liability, provides in
relevant part, ‘[a]ll persons concerned in the commission of a crime, whether it be felony
21
or misdemeanor, and whether they directly commit the act constituting the offense, or aid
and abet in its commission … are principals in any crime so committed.’ An aider and
abettor is one who acts ‘with knowledge of the criminal purpose of the perpetrator and
with an intent or purpose either of committing, or of encouraging or facilitating
commission of, the offense.’ [Citation.]” (People v. Chiu (2014) 59 Cal.4th 155, 161, fn.
omitted.) Accordingly, “‘[a] person aids and abets the commission of a crime when he or
she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent
or purpose of committing, facilitating or encouraging commission of the crime, (iii) by
act or advice, aids, promotes, encourages or instigates the commission of the crime.’
[Citation.]” (People v. Delgado (2013) 56 Cal.4th 480, 486, fn. omitted.)
B. Price’s Conviction Was Supported by Substantial Evidence
Price argues that his conviction for attempted murder must be reversed because the
evidence merely established that his car was used during the commission of the crime,
but failed to prove that he was the driving the car or was otherwise present at the scene of
the shooting. In support of this claim, Price asserts that neither of the eyewitnesses who
testified at trial identified him as the driver of the getaway car, and the only other
evidence linking him to the scene of the shooting came from law enforcement officers,
whose testimony was unreliable and inconsistent in certain respects. It is well-
established, however, that conflicts and inconsistencies in testimony, even those within
the testimony of the same witness, are to be resolved by the trier of fact. (People v.
Young (2005) 34 Cal.4th 1149, 1181 [“[r]esolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of fact”].) Moreover, “unless the
testimony is physically impossible or inherently improbable, testimony of a single
witness is sufficient to support a conviction.” (Ibid.; see also People v. Richardson
(2008) 43 Cal.4th 959, 1030-1031 [“testimony of a single witness is sufficient for the
proof of any fact”].) In this case, there was ample evidence to support a finding that
Price aided and abetted Machuca in the shooting by driving the getaway car.
22
First, the prosecution presented substantial evidence linking Price and Machuca to
the area of the crime shortly before the shooting occurred. Detective Jacinto, who had
prior contacts with both men, observed them together in Price’s Ford Focus less than 15
minutes before the shooting began and about two miles from where the crime took place.
At that time, Price was driving the car and Machuca was the passenger. While Price
challenges Detective Jacinto’s identification of him as lacking in credibility, he has not
demonstrated that such testimony was physically impossible or inherently improbable.
Second, there was strong circumstantial evidence showing that Price was present
at the scene during the commission of the crime. The two eyewitnesses who testified at
trial, White and Dempf, each recounted that a gray Ford Focus was used as the getaway
car after the first set of shots was fired. While neither witness could identify Price as the
driver of the car, there was testimony that they similarly described the driver as a Black
male in their interviews with the police shortly after the shooting. Dempf also wrote
down the license plate number of the car as the shooting was in progress, and it was
almost an exact match to the license plate number of Price’s Ford Focus. Based on this
evidence, the jury reasonably could have inferred that Price and Machuca were still
together in Price’s car 10 minutes after Detective Jacinto first observed them, and that
Price was acting as the getaway driver when Machuca attempted to shoot the victim.
Third, the prosecution offered substantial evidence connecting Price and Machuca
to the shooting after it occurred. Machuca’s house was less than 100 feet from where the
second set of shots was fired. When the police arrived at the house a few minutes after
the shooting was first reported, Detective Jacinto observed Price’s Ford Focus parked in
the driveway, still warm to the touch, and a person resembling Price fleeing from the
residence. During a search of the residence that same day, the police recovered the gun
that was used in the shooting. Although Detective Jacinto could not identify Price as the
person fleeing, there was solid circumstantial evidence from which the jury could infer
that Price parked his car at Machuca’s home immediately after the shooting and fled on
foot when the police arrived at the home.
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V. Sentencing Errors as to Machuca
On appeal, Machuca argues that his abstracts of judgment must be modified to
correct two sentencing errors. First, he contends that the sentence imposed on count two
(possession of a firearm by a felon) must be deemed concurrent to the sentence imposed
on count one (attempted murder) because the trial court’s oral pronouncement failed to
indicate whether the term on count two was to be concurrent or consecutive. Second, he
claims that the abstracts of judgment must be corrected to reflect that the two-year gang
enhancement imposed by the trial court applied to count two rather than count one. We
agree the trial court’s written sentencing orders must be modified to correct these errors.
A. Relevant Background
Machuca was convicted as charged of two counts. As to count one, the jury found
him guilty of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd.
(a)), with true findings on both a firearm enhancement allegation (§ 12022.53, subds. (c),
(e)) and a gang enhancement allegation (§ 186.22, subd. (b)). As to count two, the jury
found him guilty of possession of a firearm by a felon (§ 12021, subd. (a)), with a true
finding on a gang enhancement allegation (§ 186.22, subd. (b)).
At the May 21, 2013 sentencing hearing, the trial court orally pronounced the
sentence for Machuca as follows: “With respect to Mr. Machuca, probation is denied in
this matter. Mr. Machuca is to be imprisoned in the state prison for a period of life. As
to count 1, that term will be a minimum of 15 years. As to count 2, the court imposes a
determinate sentence of 23 years and 4 months.6 I am imposing the low term to give Mr.
Machuca some inducement to program well in state prison so that he may once again
enjoy his liberty if he makes prudent choices. He is a young man, I don’t believe the die
is necessarily cast permanently.” The trial court did not state whether the sentence on
6 The sentence pronounced by the trial court on count two consisted of the low term
of 16 months on the underlying count, two years on the gang enhancement, and 20 years
on the firearm enhancement. However, the 20-year term on the firearm enhancement
should have been imposed on count one.
24
count two was to be served concurrently or consecutively. The trial court also did not
set forth any reasons for imposing a consecutive sentence.
In the clerk’s May 21, 2013 minute order for the sentencing hearing, Machuca’s
sentence was stated differently. As to count one, the sentence was 15 years to life with
an additional 20-year term on the firearm enhancement and an additional two-year term
on the gang enhancement.7 As to count two, the sentence was the low term of 16 months.
The minute order indicated that the sentence on count two was to “run consecutive” to
the sentence on count one.
On May 23, 2013, two abstracts of judgment were filed for Machuca. The first
abstract of judgment stated that, as to count one, the sentence was the indeterminate
term of 15 years to life, plus an additional determinate term of 20 years on the firearm
enhancement and two years on the gang enhancement. The second abstract of judgment
stated that, as to count two, the sentence was the low term of 16 months. Neither abstract
of judgment indicated whether the sentence on count two was consecutive or concurrent.
B. The Count Two Sentence Is Deemed Concurrent by Operation of Law
Machuca asserts that the abstracts of judgment must be modified to reflect that
the sentence on count two is to be served concurrently with the sentence on count one
because the trial court failed to orally pronounce whether the term imposed on count two
would be concurrent or consecutive, or to state any reasons on the record for imposing a
consecutive term. The Attorney General argues that the record establishes that the trial
court intended to impose a consecutive term on count two and that any error in failing to
state the reasons for a consecutive sentence was harmless.
Section 669 provides, in relevant part: “When any person is convicted of two or
more crimes, whether in the same proceeding or court or in different proceedings or
courts, . . . the second or other subsequent judgment upon which sentence is ordered to be
7 Although the 20-year firearm enhancement was properly applied to count one in
the clerk’s minute order, the two-year gang enhancement was not.
25
executed shall direct whether the terms of imprisonment or any of them to which he or
she is sentenced shall run concurrently or consecutively. . . . [¶] . . . Upon the failure of
the court to determine how the terms of imprisonment on the second or subsequent
judgment shall run, the term of imprisonment on the second or subsequent judgment shall
run concurrently.” (§ 666, subds. (a), (b).) Section 669 thus imposes an affirmative duty
on the trial court to determine whether the terms of imprisonment for multiple offenses
are to be served concurrently or consecutively. If the trial court fails to determine
whether a sentence is concurrent or consecutive, it is deemed concurrent by operation of
law. (People v. Downey (2000) 82 Cal.App.4th 899, 913-915; People v. Caudillo (1980)
101 Cal.App.3d 122, 126-127.) Additionally, the trial court must state the reasons for
its sentencing choices, including the imposition of a consecutive sentence. (People v.
Sandoval (2007) 41 Cal.4th 825, 850; Cal. Rules of Court, rule 4.406, subd. (b)(5).)
In this case, the record reflects that the trial court did not indicate at the sentencing
hearing whether the term imposed on count two was to be served concurrently or
consecutively. The court also did not state on the record any reasons for selecting a
consecutive term. Instead, the court simply stated that it was imposing a “minimum
[sentence] of 15 years” on count one, and “a determinate sentence of 23 years and 4
months” on count two. While the abstracts of judgment were also silent on the matter,
the clerk’s minute order affirmatively stated that the sentence on count two was to run
consecutively to the sentence on count one. However, “[a]ny discrepancy between the
minutes and the oral pronouncement of a sentence is presumed to be the result of clerical
error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from
that recorded in the minutes.” (People v. Price (2004) 120 Cal.App.4th 224, 242; see
People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [“record of the oral pronouncement
of the court controls over the clerk’s minute order”].) Because the trial court’s oral
pronouncement of Machuca’s sentence does not demonstrate an intent to impose a
consecutive term, the sentence on count two must be deemed concurrent under section
669. (People v. Downey, supra, 82 Cal.App.4th at p. 915 [where trial court failed to
designate whether terms were consecutive or concurrent, they were deemed concurrent
26
under section 669]; People v. Caudillo, supra, 101 Cal.App.3d 122 at pp. 126-127 [where
oral pronouncement was silent on whether sentence was consecutive or concurrent,
abstract of judgment provision for consecutive term did not satisfy section 669].)
The Attorney General acknowledges that the trial court failed to give any reasons
for imposing a consecutive sentence, but argues that the court must have intended for the
term on count two to run consecutively to the term on count one based on its statements
on the record. The Attorney General notes that the trial court decided to impose the low
term on count two to incentivize Machuca to perform well in prison, and claims that it
would have been pointless for the court to discuss its reasons for selecting a low term if it
intended for count two to be served concurrently. However, the trial court’s statements
about the low term on count two were in direct response to defense counsel’s request for
leniency as to that count given Machuca’s cooperation with the police in recovering the
firearm. On this record, we cannot conclude that the trial court intended to impose
consecutive terms. Accordingly, because the trial court failed to orally pronounce
whether the sentence on count two was to be concurrent or consecutive, it is deemed
concurrent under section 669 and the minute order and abstracts of judgment must be
modified accordingly. (People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14 [“[w]hen an
abstract of judgment does not accurately reflect the trial judge’s oral pronouncement of
sentence, [the appellate] court has the inherent power to correct such an error, either on
[its] own motion or at the parties’ behest”].)
C. The Two-Year Gang Enhancement Must Be Applied to Count Two
Machuca also contends, and the Attorney General concedes, that the abstracts of
judgment must be modified to reflect that the two-year gang enhancement imposed by
the trial court at the sentencing hearing applied to count two rather than count one. We
agree. Section 186.22, subdivision (b)(1)(A) provides for an additional term of two,
three, or four years where the defendant is convicted of a felony committed for the
benefit of a gang. Alternatively, if the defendant is convicted of a felony punishable by
life imprisonment, section 186.22, subdivision (b)(5) requires that he or she serve a
27
minimum term of 15 years before being paroled. At the sentencing hearing, the trial
court correctly applied a 15-year parole eligibility gang enhancement to count one and a
two-year gang enhancement to count two. However, both the minute order and abstracts
of judgment erroneously indicated that the two-year gang enhancement applied to count
one, and not to count two. The written sentencing orders must therefore be modified to
strike the two-year gang enhancement from the sentence imposed on count one and to
add that enhancement to the sentence imposed on count two.
DISPOSITION
As to Machuca, the trial court’s May 21, 2013 sentencing minute order is modified
to strike the two-year gang enhancement from the sentence imposed on count one and to
add that two-year gang enhancement to the sentence imposed on count two. The minute
order is further modified to reflect that the sentence imposed on count two is to be served
concurrently with the sentence imposed on count one. The superior court is directed
to prepare corrected abstracts of judgment reflecting these modifications and to forward
them to the Department of Corrections and Rehabilitation. In all other respects, the
judgments as to both Machuca and Price are affirmed.
ZELON, J.
We concur:
PERLUSS, P. J.
WOODS, J.
28