IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE A110859

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1 Filed 2/26/07 P. v. Noel CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, v. PATRICK EVERETT NOEL, Defendant and Appellant. A (Mendocino County Super. Ct. No ) Patrick Everett Noel appeals from the judgment entered following his conviction for attempted murder and other offenses. The parties agree that the judgment should be modified to reflect that the sentence for the count six firearm enhancement is a concurrent term, and we direct that the judgment be so modified. In all other respects we affirm. PROCEDURAL BACKGROUND On September 1, 2004, the District Attorney of Mendocino County filed an information which, as later amended, charged defendant Patrick Everett Noel with nine felonies: attempted murder of Richard N. (count one; Penal Code 187/664); 1 assault on Richard N. with a firearm (count two; 245, subd. (b)); unlawful participation in a criminal street gang (count three; , subd. (a)); assault on Raelene D. with a firearm (count four; 245, subd. (b)); endangering a child, J.D. (counts five and six; 273a, subd. (a)); kidnapping Raelene D. and J.D. (counts seven and eight; 207, subd. (a)); and vehicle theft (count nine; Veh. Code 10851, subd. (a)). Among other 1 All further statutory references are to the Penal Code unless otherwise indicated. 1

2 enhancements, the information alleged that counts one and two were committed for the benefit of a criminal street gang ( , subd. (b)(1)) (gang enhancement). A jury convicted defendant on all charges and found all enhancement allegations to be true. Defendant filed a motion for a new trial as to some of the jury verdicts. The trial court granted the motion with respect to the gang enhancements as they pertained to the attempted murder and assault convictions but otherwise denied the motion. After the People indicated they would not retry these enhancements or appeal the court s decision, the court sentenced defendant to 41 years in state prison. FACTUAL BACKGROUND On November 26, 2003, around 9:30 p.m., Richard Noel was walking toward Main Street in Willits when a black Mitsubishi Montero drove past him. He recognized the car as belonging to his friend Raelene D. and saw that his cousin, defendant Patrick Noel, was driving. He did not see anyone else in the car. The Montero turned around and pulled to a stop in the middle of the street next to Richard. Richard saw a flash through the rear passenger side window, heard a gunshot, and felt a gust of wind on his neck. Richard ran to the nearby house of a family friend and said Oh, my god, Patrick shot at me. Raelene D., defendant s former girlfriend, testified that defendant came to her house at about 2:00 a.m. on the morning of November 27, He went to her bedroom window and said that he had tried to kill his cousin because Richard had snitched on him in the past. Raelene D. was scared and went to her mother s room. When she went back to her bedroom, defendant was trying to crawl into her bedroom window. At 4:00 a.m. on November 27, 2003, police officers were dispatched to Raelene D. s house because it was reported that defendant was trying to break in through a window. Defendant was gone when the officers arrived, but they found the black Montero in the street. A.22-caliber semi-automatic pistol was in the front seat, partially covered by a red bandana. During a second search of the vehicle the following day, 2

3 officers found a shell casing in the rear, where it would have been ejected if defendant had been shooting out the rear passenger-side window from the driver s seat. Earlier in the same day on which defendant shot at Richard, defendant had arrived at Raelene D. s house in Willits at about 3:00 p.m. with the Montero and told Raelene D. he wanted her to drive him to Oroville. She agreed because she wanted to get her car back, and to end her relationship with defendant. Raelene D. put her four-year-old daughter J.D. in the back seat, defendant got into the passenger seat, and Raelene D. drove. Before they reached Oroville, while they were in the Blue Lakes region, defendant told Raelene D. he wanted to return to Willits; Raelene D. turned the car around and started to drive back towards Willits. While Raelene D. was driving at about 55 miles per hour, she and Defendant got into an argument. Defendant became very angry and yelled at Raelene D. Defendant suddenly pulled a pistol out of his waistband and fired it into the floor of the car, screaming If you don t believe me, I ll fucking end it now. 2 J.D., who was strapped in a child seat in the back of the car, was screaming and crying and Raelene D. was frightened. Raelene D. kept driving. About 40 minutes later, when they reached Willits, defendant got angry again when Raelene D. would not accede to his demand to drive the car. Defendant put the pistol against Raelene D. s leg and told her he wanted to drive the fucking car. Raelene D. pulled over, got out of the car, and grabbed her daughter. Defendant drove off in the Montero. Raelene D. started walking back towards her house when, a few minutes later, defendant drove up and said, get in the fucking car. Raelene D. did not want to get back into the car; she was scared and thought defendant was going to kill her, and J.D. was crying and frightened. Raelene D. and J.D. got into the back seat of the Montero. A short while later, when the car was stopped at a traffic light at the intersection of Highway 20 and Highway 101, Raelene D. grabbed her daughter and jumped out of the car. She ran into a Jack-in-the-Box restaurant for safety, waited a few 2 The police eventually recovered a bullet fragment lodged in the right passenger side floorboard of the Montero; however, the fragment was unsuitable for comparison to the firearm recovered from the Montero. 3

4 minutes for defendant to drive off in the Montero, and then, with her young daughter, went across the street to an aunt s house. By then it was about 6:00 p.m. The People called police officer Michael Globe to testify at trial as a gang expert. He gave background information about the Norteno street gang. Among other things, Officer Globe testified that members of the Norteno gang typically wear red clothing, carry red bandanas, and have tattoos, including representations of the number 14, because N is the 14th letter of the alphabet. Globe testified that in his opinion defendant was a member of the Nortenos. He based his opinion on the fact that in November 2002 defendant admitted to Officer Globe that he was a Norteno; that during this 2002 encounter defendant wore a red sweatshirt, red belt, and red bandana; and that defendant had various tattoos that identified him as a Norteno. In particular, defendant had a tattoo of the number 14; a one-dot and a four-dot tattoo that together represent the number 14; and a tattoo of the letters WSK, short for Willits Scrap Killers. Globe testified that Willits signifies the city of Willits and scrap is a derogatory term for a member of the rival Sureno gang. The expression WSK thus refers to killing Surenos. Globe further testified that a gang member can earn respect from his gang in many ways, including committing crimes for the promotion of the gang, or creating a fear in society and the fear against Sureno gang members. 3 Even if a defendant committed a violent crime by himself, the gang would benefit because when people find out what you did, the gang finds out what you did, the rival gang members find out what you did, it creates the fear to others and it gives you respect from within the gang that this person is willing to do anything and die for whatever cause they believe in dying for. Officer Globe explained that in the gang world, if you attempt to kill or shoot at a snitch because he s a snitch which in the gang culture and in the criminal culture is less than a person, because they re not a stand-up person, because in a sense they re ratting out the other guys killing that person or attempting to kill that person would gain respect within 3 Officer Globe testified that the more dangerous stuff you do, the more serious stuff you do, society fears you and the gang respects you for doing these things on their behalf. It s like they re promoting their name. You do a serious crime with violence, it creates a fear that nobody and intimidation, if you will. 4

5 the gang and give the perpetrator almost [] a higher status within the gang for his efforts. Globe was of the opinion that when defendant shot at Richard he was benefiting the Norteno gang because defendant believed Richard was a snitch and snitches are disdained in gang culture. Even if Richard were not a member of a gang (and there was no evidence that he was), a crime committed by a Norteno against an ordinary citizen could benefit the Norteno gang. Richard Noel, who has known members of the Norteno and Sureno gangs in Willits, testified that defendant told him that he was a gang member. Richard testified that red was defendant s preferred color of clothing, that defendant s WSK tattoo meant Richard did not like the Surenos, and the 14 tattoo relates to Nortenos (as compared with 13 for Surenos). Raelene D. also testified that defendant made it known to everyone that he was affiliated with the Nortenos. Defendant did not present any evidence at trial. DISCUSSION I. Sufficiency of the Evidence of Attempted Murder Defendant contends that insufficient evidence supports the jury s guilty verdict on the charge of attempted murder because the evidence that he was the shooter was weak and, even assuming he did shoot at Richard Noel, the evidence does not support a finding that he harbored intent to kill. We disagree. The crime of attempted murder requires proof of intent to kill. (People v. Swain (1996) 12 Cal.4th 593, ) While intent can be inferred from the circumstances surrounding the incident, ultimately intent must be proved, and it cannot be inferred merely from the commission of another dangerous crime. (People v. Collie (1981) 30 Cal.3d 43, 62.) We employ the substantial evidence test in determining whether the evidence is legally sufficient to sustain the jury s verdict. (People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6; People v. Ferraez (2003) 112 Cal.App.4th 925, 931.) We review the entire 5

6 record in the light most favorable to the prevailing party to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Wader (1993) 5 Cal.4th 610, 640.) We draw all reasonable inferences in support of the judgment. (Ibid.) We do not reweigh evidence or redetermine issues of credibility. (Ferraez, at p. 931.) Substantial evidence supports the jury s verdict that defendant is guilty of attempted murder. The victim, Richard, testified that on the night of the shooting he recognized Raelene D. s Montero and recognized defendant as the driver. Richard is the defendant s cousin, and he has known defendant his whole life. Although Richard did not see the face of the shooter at the precise moment of the shooting, there is no evidence anyone else was in the Montero. A shell casing was found in the rear of the Montero in a location consistent with the driver shooting a weapon out the rear-passenger window. When Richard reached a place of safety, he immediately identified the shooter as his cousin Patrick, the defendant. Richard s testimony is alone sufficient to support the jury s verdict. (People v. Zavala (2005) 130 Cal.App.4th 758, 766.) 4 Richard s testimony is corroborated by defendant s possession of the Montero earlier on the day of the shooting, the discovery of the pistol in the Montero, and defendant s admission to Raelene D. in the early morning hours following the shooting that he had shot at Richard. The jury s finding that defendant was the shooter is supported by substantial evidence. 5 Substantial evidence also supports the conclusion that defendant had the intent to kill. Defendant contends the evidence is insufficient because he did not utter any threat and because Richard was not hit by the bullet. This is not dispositive. The evidence at 4 Contrary to defendant s repeated assertion on appeal, the trial court did not state at the hearing on the motion for a new trial that Richard s identification of defendant was not worthy of much credence. Instead, the trial court stated much more narrowly that he did not give that much credence to Richard s statement that defendant may have been wearing a red sweater at the time of the shooting. 5 To the extent defendant questions whether any shooting occurred at all, we note that Richard s testimony is corroborated by neighbors who testified they heard noises that sounded like gunshots and by discovery of a shell casing in the Montero. Failure to find a bullet at the location of the shooting is not dispositive. 6

7 trial showed that on the night of November 26, defendant drove past Richard on the street, turned the Montero around and came right back toward him, and fired at Richard from such close range that Richard felt the bullet pass by his neck. (See People v. Lashley (1991) 1 Cal.App.4th 938, 945.) Defendant then confessed to Raelene D. a few hours later that he had tried to kill Richard. The defendant s challenge to the sufficiency of evidence to support a jury verdict of attempted murder thus fails. 6 II. Claims Related to the Gang Participation Charge and Gang Enhancement The information charged defendant with the substantive crime of unlawful participation in a criminal street gang (count three; , subd. (a); the gang participation charge ) as well as alleging that counts one and two (attempted murder and assault with a firearm) were committed for the benefit of a criminal street gang ( , subd. (b)(1); the gang enhancements ). 7 The jury found defendant guilty of the gang participation charge and found true the gang enhancements. On appeal, defendant raises two issues related to these verdicts. First, he contends that the trial court erred in denying his pretrial motion to dismiss all of the gang related allegations from the information. Second, he contends that there is insufficient evidence to support the jury s verdict on the substantive gang participation charge. Neither claim has merit. A. Statutory Background The gang participation charge ( , subd. (a)) and the gang enhancement ( , subd. (b)(1)) are both part of the California Street Terrorism Enforcement and Prevention Act of 1988, which was a legislative response to the increasing violence of street gang members throughout the state. (People v. Ngoun (2001) 88 Cal.App.4th 432, ) 6 Defendant also challenges the sufficiency of the evidence of premeditation. However, the information did not allege that the attempted murder was premeditated and the jury was not asked to make any such finding. (See 664, subd. (a).) 7 The gang enhancements were pled as the second special allegation and fourth special allegation in the amended information. 7

8 The offense of unlawful participation in a criminal street gang, section , subdivision (a), provides that [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, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. The statute sets forth a substantive offense whose gravamen is the participation in the gang itself. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467.) Previously, there was no existing law that made the punishment for crimes by a gang member separate and distinct from that of the underlying crimes. (Ibid.) Importantly, membership in a criminal gang does not itself establish a violation of section , subdivision (a); the prosecution must show that the defendant himself committed a gang related felony or that he aided and abetted a felony committed by gang members. (In re Jose P. (2003) 106 Cal.App.4th 458, 466; People v. Ngoun, supra, 88 Cal.App.4th at pp ) For example, in People v. Ferraez, supra, 112 Cal.App.4th at pages , the defendant, an admitted gang member, claimed that he was selling drugs for a personal reason, to buy a car for himself, rather than to benefit his gang. The Fourth District upheld his conviction under section , subdivision (a) because of other evidence showing that the sales were in fact gang related, including expert testimony and evidence that he received permission from another gang, on friendly terms with his gang, to sell in their territory. (Ibid.; see also Ngoun, at p. 437 [gang participation charge supported by evidence defendant committed assaults to benefit gang].) The gang enhancement, in contrast, is not a substantive offense. Instead, it provides for greater punishment where a defendant is convicted of a gang-related felony; that is, a felony 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. ( , subd. (b)(1).) 8

9 B. Denial of Defendant s Motion to Dismiss Pursuant to Section 995 Before trial, defendant moved under section 995 to dismiss the gang enhancements ( , subd. (b)(1)) and the gang participation charge ( , subd. (a)), on the ground that there was no reasonable or probable cause to believe that any of the charged crimes were committed for the benefit of a street gang. 8 On appeal, defendant contends that the court erred in denying the 995 motion because, after trial, on defendant s motion for a new trial, the court found that insufficient evidence supported the jury s finding on the gang enhancement. This argument is without merit. Under section 995, an information must be set aside on defendant s motion if the defendant had been committed without reasonable or probable cause. ( 995, subd. (a)(2)(b).) A single count or enhancement allegation may be stricken if it is not supported by reasonable or probable cause. (People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 761, fn. 6, superseded by statute on another point, as discussed in In re Jovan B. (1993) 6 Cal.4th 801, 814, fn. 8.) [A]n indictment or information should be set aside only when there is a total absence of evidence to support a necessary element of the offense charged. [Citations. ] [A]lthough there must be some showing as to the existence of each element of the charged crime [citation] such a showing may be made by means of circumstantial evidence supportive of reasonable inferences on the part of the magistrate. [Citation.] Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. [Citations.] Thus, the ultimate test is that [a]n information will not be set aside or prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed 8 Defendant s written section 995 motion specifically referred to the gang enhancement but did not seek review of the substantive gang participation charge. At the hearing on the motion, defense counsel did not raise any issue as to the gang participation charge, choosing instead to submit on the papers. Nevertheless, the trial court apparently interpreted the motion as encompassing the gang enhancements and the gang participation charge, because in making its oral ruling the court denied the motion as to all of them. On appeal, respondent contends that defendant forfeited any objection to trial on the substantive gang charge. We need not reach this issue because we conclude in any event there was reasonable or probable cause to support the gang participation charge. 9

10 and the accused is guilty of it. [Citation. ] We review the evidence in support of the information to determine whether as a matter of law it is sufficient, not whether the trial court s ruling was reasonable. (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226; see also People v. Jones (1998) 17 Cal.4th 279, 301; People v. Gaio (2000) 81 Cal.App.4th 919, 936.) A conviction after trial will not be reversed for erroneous denial of a section 995 motion without a showing that the error actually prejudiced the defendant or deprived him of a fair trial. (Gaio, at p. 936.) Defendant concedes that the evidence adduced at the preliminary hearing arguably established that the Nortenos were a criminal street gang (that is, there was sufficient evidence of the predicate offenses committed by the gang) and that defendant associated with them. Defendant challenges on appeal the sufficiency of the evidence at the preliminary hearing that the shooting at Richard was gang related or done for the benefit of a gang. The record defeats defendant s argument. At the preliminary hearing, Officer Globe, the gang expert, testified that members of the Norteno gang associate with the number 14 and the color red. At the time of an earlier arrest, defendant was in possession of a red belt, sweatshirt, and bandana and had the number 14 tattooed on his stomach, WSK tattooed on a shoulder, and tattooed dots on his hands indicating affiliation with the Nortenos. Raelene D. testified that defendant told her he was a Norteno, and that she knew he wore Norteno colors. Richard also testified that defendant is a gang member. Police Officer Mark Heaney testified that the morning after the shooting he discovered a pistol on the front seat of the Montero underneath a red bandana. Officer Heaney also testified that Richard told him that there was some bad blood with defendant because Richard was being accused of being a snitch and defendant was paranoid that people were sleeping with his then girlfriend Raylene. Officer Heaney also testified that Raelene D. told him she was not having sex with anyone other than defendant. Officer Globe, the gang expert, opined that if defendant shot at Richard the night of November 26, he did so for the benefit of the Norteno gang because if a Norteno gang member committed that act, it would promote himself and the fear of the Norteno gang 10

11 through the public. He continued, In the gang s culture and within the gang of the Norteno street gang, it would show that the subject s willing to do anything if called upon by the other Nortenos to commit an act that he would follow through on it because that subject has already committed an act such as that of violence. He also explained that, when a gang member commits a violent crime that generates fear and intimidation in the public, the member gains respect and power within the gang. We conclude that the evidence presented at the preliminary hearing was sufficient. In particular, reasonable or probable cause that the shooting was gang-related is provided by the evidence of defendant s membership in the Norteno gang (including his body tattoos and gang clothing), the discovery of the pistol in the Montero underneath a red bandana, and the gang expert s explanation of how the shooting would have benefited the gang. A rational trier of fact could infer that defendant believed that Richard was a snitch and that defendant shot at Richard to eliminate someone who had or who might report on the Nortenos activities and to send a message to other members of the public inclined to cooperate with the police. A rational trier of fact could also infer that defendant committed the crime to create general fear of the Nortenos within Willits. Finally, a rational trier of fact could infer that defendant covered the pistol with a red bandana and left it where it would be discovered by the police (instead of getting rid of it) so that the crime would be associated with the gang. Accordingly, there was a rational ground for assuming the possibility that the gang charge had been committed and the defendant was guilty of it, and for assuming the possibility that the gang enhancement allegations were true. (People v. Superior Court (Jurado), supra, 4 Cal.App.4th at p ) Defendant also argues that because there was no testimony at the preliminary hearing that defendant aided and abetted a separate felony committed by gang members (In re Jose P., supra, 106 Cal.App.4th at p. 466), as a matter of law the substantive gang charge could not be sustained. This argument is premised on a misunderstanding of the statute and the case law. As we noted previously, the gang-related felony required to sustain the gang participation charge can be a charged offense committed by the defendant; the prosecution need not show that the defendant aided a separate felony 11

12 committed by another gang member. (People v. Ngoun, supra, 88 Cal.App.4th at p. 436.) To conclude otherwise would mean that the perpetrator of a gang related felony could not be convicted of the gang participation offense while an aider and abettor in the same felony could be convicted of the offense. (Ibid.) Such an interpretation of the statute would be an irrational because [a]n active gang member who directly perpetrates a gang-related offense contributes to the accomplishment of the offense no less than does an active gang member who aids and abets. (Ibid.) Finally, defendant makes much of the fact that the trial court ultimately granted defendant s motion for a new trial with respect to the gang enhancements. This does not alter our analysis of the sufficiency of the evidence to establish reasonable or probable cause at a preliminary hearing before trial. A section 995 motion must be denied if there is any rational ground for assuming the defendant s guilt, while a motion for new trial may be granted, notwithstanding the legal sufficiency of the evidence, if the trial court would have decided the case differently from the jury. (Compare People v. Superior Court (Jurado), supra, 4 Cal.App.4th at p [standard for granting a 995 motion] and People v. Lagunas, supra, 8 Cal.4th at p. 1038, fn. 6 [standard for granting a motion for a new trial].) In other words, the fact that the trial court ultimately found that the prosecution did not prove the truth of the gang enhancements beyond a reasonable doubt does not mean that there was no probable cause at the time of the section 995 motion. Because evidence establishing reasonable or probable cause was adduced at the preliminary hearing, the trial court did not err in denying the section 995 motion. Finding no error, we need not address defendant s contention that he was prejudiced by erroneous admission of the gang-related evidence at trial. (See People v. Gaio, supra, 81 Cal.App.4th at p. 936.) C. Sufficiency of the Evidence to Support the Conviction for Unlawful Participation In A Criminal Street Gang Defendant also challenges the sufficiency of the evidence to support his conviction for the substantive gang participation charge ( , subd. (a)). As set forth above in part I, we use the substantial evidence test in determining whether the evidence is 12

13 legally sufficient to sustain the jury s verdict. (People v. Lagunas, supra, 8 Cal.4th at p. 1038, fn. 6.) Reversal is not warranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin (1998) 18 Cal.4th 297, 331.) As noted previously, membership in a criminal gang does not itself establish a violation of section , subdivision (a); the prosecution must show that the defendant committed a gang-related felony or aided and abetted a felony committed by gang members. (In re Jose P., supra, 106 Cal.App.4th at p. 466; People v. Ngoun, supra, 88 Cal.App.4th at pp ) In this case there is no evidence of a crime committed by another gang member with aid from defendant, so the underlying gang-related felony must be one of the charged offenses. We conclude that substantial evidence supports the conclusion that the shooting at Richard was for the benefit of the Nortenos. The evidence at trial, including defendant s admissions, his tattoos, and gang expert Officer Globe s testimony, showed that defendant was a member of the Nortenos. Officer Globe explained that the color red was associated with the Nortenos, and the night of the shooting a pistol was discovered on the front seat of the Montero partially covered by a red bandana. Raelene D. testified that defendant told her he attempted to kill Richard because Richard had snitched on him. Officer Globe explained that attempting to kill a snitch would enhance defendant s status within the gang and would benefit the gang by instilling fear in the community. Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found beyond a reasonable doubt that the shooting was gang-related. Although there is no evidence of the use of gang slogans and signs during the shooting, the jury reasonably could have inferred that the pistol partially covered by a red bandana was a post-shooting gang sign. Defendant reasonably would have been expected to conceal or dispose of the pistol; instead he abandoned it in a location where it was almost certain to be discovered by the police and draped it in the color associated with the Nortenos. Defendant s belief that Richard was a snitch provided a gang-related motive; a rational trier of fact could have inferred that killing 13

14 Richard would prevent him from telling anything else to the police and deter other citizens from reporting the gang s activities. Viewed as a whole, there is substantial evidence to support the finding that the shooting was gang related, which provides the gang-related felony necessary to support the conviction under section , subdivision (a). (People v. Ngoun, supra, 88 Cal.App.4th at pp ) A recent case cited by defendant, In re Frank S. (2006) 141 Cal.App.4th 1192, is distinguishable. The court reversed for lack of substantial evidence the juvenile court s finding that a minor, who was stopped for failing to stop at a red light while riding a bicycle, possessed a concealed knife for the benefit of a gang. ( , subd. (b)(1).) In the court s view, the prosecution presented no evidence other than the [gang] expert s opinion regarding gangs in general and the expert s improper opinion on the ultimate issue of the minor s specific intent in possessing the concealed knife. (In re Frank S., at pp. 1192, 1199.) The court characterized the case as one where the enhancement allegation was improperly found true based solely upon [the minor s] criminal history and gang affiliations. (Id. at p ) In our case, as explained above, the evidence directly connected defendant s gang affiliation to the shooting and the evidence provided a gang-related motive for the shooting. Also, the gang expert in our case did not offer an opinion on the issue of defendant s specific intent in the shooting. Defendant emphasizes on appeal that the trial court granted defendant s motion for a new trial with respect to the gang enhancements. The motion argued that the evidence was insufficient to support the jury s finding on the gang enhancements because there was no evidence that the shooting was gang related. In making its ruling partially granting the motion for a new trial, the trial court agreed that the evidence did not demonstrate that the shooting was for the benefit of the gang, stating [w]e ve got no flashing of gang signs. We ve got no statements of gang slogans or anything to show gang involvement. On appeal, defendant asserts that the trial court thereby found that the evidence was insufficient as a matter of law to sustain the gang enhancement. Defendant further reasons that we should conclude there is no substantial evidence for the gang participation charge ( , subd. (a)) because, if the shooting was not gang- 14

15 related, there was no gang-related offense on which to base a conviction for unlawful participation in a criminal street gang. Defendant misconstrues the nature of the trial court s finding. In considering a motion for a new trial made on the ground of insufficiency of the evidence to support the verdict, the trial court independently weighs the evidence and should grant the motion if it would have decided the case differently from the jury. (People v. Lagunas, supra, 8 Cal.4th at p. 1038, fn. 6; see also People v. Lewis (2001) 26 Cal.4th 334, ) But a trial court s decision to grant a motion for a new trial is not a determination that the evidence is insufficient as a matter of law. (Lagunas, at p. 1038, fn. 6; Veitch v. Superior Court (1979) 89 Cal.App.3d 722, 731.) That is the issue before us now under the substantial evidence test. (Lagunas, at p. 1038, fn. 6.) Unlike a trial court considering a motion for a new trial, in deciding whether substantial evidence supports a verdict this court does not independently reweigh the evidence. (Ibid.) Instead, we consider whether any rational trier of fact could have found proof beyond a reasonable doubt. (Ibid.) The trial court s decision to grant the motion for a new trial with respect to the enhancement indicates that a rational trier of fact could conclude that the prosecution failed to prove beyond a reasonable doubt that the shooting was gang-related, but it does not show that no rational trier of fact could conclude to the contrary. Although the trial court concluded there was insufficient evidence of gang-relatedness under his independent review of the evidence, our review is more deferential to the jury s verdicts. For the reasons set forth above, notwithstanding the trial court s ruling on the motion for a new trial, we conclude that the jury s verdict on the gang participation charge is supported by substantial evidence. III. Sufficiency of the Evidence to Support Two Counts of Child Endangerment The jury found defendant guilty of two separate counts of child endangerment ( 273a, subd. (a)). Defendant contends that the evidence at trial showed only one continuous course of conduct rather than two separate incidents, and one of the counts should be reversed. Defendant s argument is without merit. 15

16 Section 273a, subdivision (a), which defines the crime of felony child endangerment, provides in relevant part that Any person who, under circumstances or conditions likely to produce great bodily harm or death,... having the care or custody of any child..., willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished [as prescribed]. In its closing argument to the jury, the prosecution argued that the evidence showed two separate acts of child endangerment, both occurring while Raelene D. was driving the Montero with her daughter J.D. in the back seat. One act (as alleged in count five) was based on the evidence that, while in the town of Willits, defendant held a pistol to Raelene D. s leg and insisted that he wanted to drive the fucking car. Count six was based on the evidence that, 40 minutes earlier in the same car trip, while in the Blue Lakes region, defendant suddenly pulled out a pistol and fired it into the floor of the car, screaming If you don t believe me, I ll fucking end it now. Defendant does not dispute that each of the two incidents endangered J.D. Instead, defendant contends that he should have been convicted of only a single continuous course of conduct. He argues that there is insufficient evidence to support two convictions for violating section 273a(a) because the act of pointing the pistol at Raelene D. s leg immediately followed the act of shooting into the floorboard of the Montero, both incidents happened while Raelene D. was driving and J.D. was in the back seat, and there was no significant passage of time. Defendant cites cases that support the proposition that child endangerment may be proven by a continuous course of conduct, which is an exception to the unanimity requirement for a jury in a criminal case. The unanimity requirement is intended to ensure that all jurors agree the defendant committed a particular act where evidence of more than one possible act constituting a charged criminal offense has been introduced. (People v. Mickle (1991) 54 Cal.3d 140, 178.) The primary significance of defining a crime as a continuous course of conduct is that the jury need not agree unanimously that the defendant committed any particular act or acts; it need only agree unanimously that 16

17 he or she engaged in the prohibited conduct. (People v. Culuko (2000) 78 Cal.App.4th 307, 325.) However, defendant concedes that child endangerment may be charged as a continuous course of conduct or as a single act. (People v. Ewing (1977) 72 Cal.App.3d 714, 717; People v. Napoles (2002) 104 Cal.App.4th 108, 116 ( child abuse is not invariably charged as a course of conduct offense; one act or omission constituting abuse may be sufficient for conviction ).) In this case the People opted to prove two separate acts of child endangerment, each occurring on the same day, and the jury unanimously agreed that defendant committed each act. Defendant cites no authority for the position that the People in this case could not choose to charge two separate acts and that defendant could not be convicted of both counts. The most likely source for such a prohibition would be section 654, which is the statutory prohibition on punishment for more than one offense arising out of a single act. But in People v. Perez (1979) 23 Cal.3d 545, 549, , the Supreme Court held that section 654 did not preclude consecutive sentences for multiple sexual offenses committed against a victim during a period of about 45 minutes. Similarly, defendant here could properly be convicted of two counts of child endangerment despite the general similarity and temporal proximity of the acts. Because substantial evidence supports the convictions on both counts (People v. Ferraez, supra, 112 Cal.App.4th at p. 931), there was no error. IV. The Consecutive Sentence on a Firearm Enhancement At sentencing for the two child endangerment convictions, the trial court imposed a consecutive sentence on count five and a concurrent sentence on count six. The court also imposed a sentence of 16 months for the section firearm enhancement pertaining to count six (the fifth special allegation) and ordered that this term run consecutively. The abstract of judgment thus reflects a concurrent term on count six and a consecutive term on the related firearm enhancement. Defendant contends that the court was not authorized to impose the enhancement consecutive to the principal term 17

18 where a concurrent term is imposed for the underlying offense. (People v. Mustaffaa (1994) 22 Cal.App.4th 1305, ) Respondent acknowledges that it is appropriate to modify the abstract of judgment to reflect a concurrent sentence for the section firearm enhancement, and that the enhancement should not be used to increase the total term of imprisonment. We will direct that the abstract of judgment be so modified. (See People v. Lawley (2002) 27 Cal.4th 102, 172.) 9 DISPOSITION The judgment is modified with respect to count six to reflect a concurrent one year four month sentence for the section enhancement. As modified, the judgment is affirmed and the cause is remanded to the trial court with directions to issue a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation. MILLER, J. We concur. JONES, P.J. SIMONS, J. 9 We also reject defendant s contention that the judgment should be reversed due to cumulative error. Defendant withdrew arguments VI and VII of his opening brief; accordingly, those arguments are not discussed herein. 18