IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR A125716

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1 Filed 9/29/10 P. v. Lopez CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, v. STEPHEN MARTINEZ LOPEZ, Defendant and Appellant. A (Contra Costa County Super. Ct. No ) Defendant Stephen Martinez Lopez was convicted following a jury trial of first degree murder and various other crimes and enhancements in connection with a drive-by shooting. He argues on appeal that (1) his murder conviction should be reversed because of various errors related to the omission of jury instructions regarding sudden quarrel/heat of passion theory, (2) there was insufficient evidence that he committed crimes with the intent to promote the criminal conduct of gang members, (3) the trial court erred in imposing a consecutive 10-year term on the gang enhancement, and (4) insufficient evidence supports the firearm enhancement on his conviction for shooting at an inhabited dwelling. We accept respondent s concession as to the consecutive 10-year term on the gang enhancement, and we order the abstract of judgment to be corrected accordingly. In all other respects, we affirm. 1

2 I. FACTUAL AND PROCEDURAL BACKGROUND In October 2003, defendant and Richard Wesley Barter were living in separate trailers in a trailer park in Bay Point. Defendant was a member of the Los Monkeys Trece (LMT) gang, a subset of the Sureño gang. About two weeks before the murder, defendant s mother gave defendant her.22 caliber gun because he told her that people were after him, and he was scared for his life. According to defendant s aunt, a boy named Adrian told defendant in mid-september, Stevie, there is a boy in Bay Point that has got a bullet with your name on it, meaning that the person in Bay Point was going to shoot defendant. On October 23, 2003, defendant went to Barter s trailer, and Barter gave defendant a ride in his pickup truck to defendant s friend s house in Pittsburg. Defendant was wearing dark blue baggy jeans and a light blue jersey with the words Dirty South and the number 13 on it, and he also wore a blue bandanna. The number 13, the color blue, and the word south are associated with the Sureño criminal street gang. Defendant and Barter hung out drinking for a few hours at the friend s house. At some point, defendant s mother was present and handed defendant a black cloth bag, and defendant placed the bag under the hood of Barter s truck. When they left about an hour later, defendant told Barter that they were going straight home. On their drive home, however, defendant told Barter (who was driving) that he wanted to make a left turn, which Barter did after an argument. Defendant told Barter that he wanted to pick someone up or something along those lines. Defendant directed Barter to a street and asked him to park, and defendant eventually told Barter to retrieve the bag that he had placed under the truck s hood. The bag contained a gun, which defendant took from Barter. At defendant s direction, Barter drove defendant to West Boulevard in Pittsburg (an area known to be the territory of the Norteño street gang), where the victim, 14-yearold Angelo Hilliard, was standing on a sidewalk talking with three friends in front of a 2

3 residence and next to the trunk of a blue car parked on the sidewalk. The victim was leaning against the car, and he and his companions were standing with their backs toward the street. The victim was wearing jeans, a red and black shirt, and black shoes with red shoelaces; other people in the area also were wearing red. Red is a color associated with the Norteño gang, a rival gang of the Sureños. Defendant said, check out those dudes over there posted up red, referring to people associated with the Norteño street gang. Defendant also said that he wanted to power up and handle his turf. Barter slowed down, then stopped, and defendant fired about five shots in quick succession. Defendant shot Hilliard in the right hip and in the head with.22 caliber bullets, and the victim later died from the gunshot wound to the head. One bullet hit the door of the residence behind the victim. Barter then drove away and returned to the trailer park in Bay Point where he and defendant lived. Barter testified that after defendant shot the victim, he seemed very happy, excited, laughing, and he said something such as, we got him. Barter likewise told police that defendant was excited and happy after the shooting. Witnesses who saw the victim before and after he was shot testified that Hilliard did not have a gun. Two of the victim s companions who were with him when he was shot testified that they did not have guns, and other witnesses also testified that the victim and his three companions were not armed. Barter likewise testified that neither the victim nor his companions pointed a gun at either him or defendant. Barter and two of the victim s companions on the night of the murder all testified that neither the victim nor his companions said anything to defendant or Barter (whom they did not know) before defendant opened fire. The victim was shot in the hip from behind and in the head at an angle; his wounds were not consistent with facing defendant directly when he was shot. When police arrived at the crime scene, the victim was lying in the gutter next to the car parked in front of a residence on West Boulevard. Police saw that the glass on the rear driver s side and rear passenger side windows of the blue car parked where the victim was found was broken, and it appeared that one bullet had been shot through both windows. Glass and wood were found in the car. Police also found four freshly 3

4 dispensed.22-caliber shell casings about 15 feet away from the victim, in the middle of the street. Tests for gunshot residue were conducted on the victim and two of the individuals who were with him when he was shot. The tests revealed no evidence of gunshot residue on the victim or on one of his companions. As for the second companion (who did not testify at trial), the tests revealed no evidence of any characteristic particles of gunshot residue on her, meaning no evidence of particles that one would expect to find on the face and hands of someone who had recently fired a gun. The tests did, however, reveal evidence of consistent particles of gunshot residue on the companion s left hand and face. An expert in gunshot residue analysis testified that as bullets travel through an intermediate target (such as a car window), there is a shearing effect off the bullet that generates gunshot residue. The expert explained that the companion could have had consistent particles of residue on her because she was standing close to the car on which windows were shot out; he also explained that the particles found on her could have originated from the bullets that defendant fired or from material in the windows through which he fired. On the day after the murder, police searched the trailer where defendant lived and found a.22-caliber semi-automatic handgun wrapped in a blue bandanna inside a metal can in a closet, as well as.22-caliber ammunition. They also found a camcorder with a videotape inside. The videotape, which was played at trial for the jury, showed defendant wearing a blue bandana and rapping with other people in a way in which a gang expert opined was consistent with gang culture and a gang s attitude toward a rival gang. Police also found rap lyrics in a letter written by defendant that read in part, I m a player Sureno banging thug that shows no love.... Catch a slug when I got my murder one gloves on. Eyes Tiny looking like if I was from Hong Kong. You think something wrong with me. If you do, fuck you. Reals word coming from SA Tiny, Pittsburg, LMT gangsta. 4

5 Defendant was charged by information with first degree murder (Pen. Code, 187, subd. (a) 1 count 1), with allegations that he intentionally discharged a firearm in the commission of the offense ( , subds. (b)-(e)(1)) and that the murder was perpetrated by means of shooting a firearm from a motor vehicle ( 190, subd. (d)). Defendant was further charged with one count of shooting at an inhabited dwelling ( 246 count 2), with a firearm enhancement ( , subds. (b)-(e)(1)); three counts of assault with a semiautomatic firearm ( 245, subd. (b) counts 3-5), with allegations that defendant personally used a firearm in the commission of the crimes ( , subd. (a)); and one count of shooting from a motor vehicle ( 12034, subd. (c) count 6), with a firearm enhancement ( , subds. (b)-(e)(1)). The information also alleged that each charged crime was committed for the benefit of a street gang. 2 ( , subd. (b)(1).) A jury convicted defendant on all counts, and found true all the firearm and gang allegations. The trial court sentenced defendant to 25 years to life for his first degree murder conviction, plus a consecutive term of 25 years to life for the firearm enhancement on that count ( , subd. (d)). The trial court also imposed a consecutive 10-year term for the criminal street gang enhancement ( ). 3 This timely appeal followed. 1 All statutory references are to the Penal Code unless otherwise indicated. 2 Defendant was charged as an adult. (Welf. & Inst. Code, 707, subd. (d)(1).) Barter was charged in the information with the same crimes. Barter pleaded no contest to voluntary manslaughter and various weapon and gang enhancements as part of a plea agreement that called for him to testify truthfully and fully about the murder. 3 The trial court also imposed various concurrent terms for his three convictions for assault with a semiautomatic firearm and related enhancements; the court stayed defendant s sentences on counts 2 and 6 pursuant to section

6 II. DISCUSSION A. Sudden Quarrel/Heat of Passion Theory of Voluntary Manslaughter. 1. Background Defendant requested that the jury be instructed regarding justifiable homicide in self-defense (CALJIC No. 5.12) and manslaughter based on the actual but unreasonable belief in the necessity to defend (CALJIC No. 5.17). The trial court gave both instructions, and the court also instructed the jury on first degree murder on theories of willful, premeditated, and deliberate murder and drive-by murder ( 189), and also on second degree murder and voluntary manslaughter. Defendant s attorney specifically told the trial court that she was not requesting that the jury be instructed on a heat of passion theory of voluntary manslaughter. She argued to the jury that defendant feared for his safety on the night of the murder, and that there was evidence to support an inference that one of the victim s companions shot at defendant and that defendant was therefore either not guilty because he was engaged in valid self-defense, or guilty of voluntary manslaughter because he had an actual but unreasonable belief that he needed to defend himself. 2. No sua sponte duty to instruct on sudden quarrel/heat of passion Defendant argues that his first degree murder conviction should be reversed, because the trial court failed to instruct sua sponte on the lesser included offense of voluntary manslaughter based on the sudden quarrel/heat of passion theory. 4 In a criminal case, a trial court must instruct on general principles of law relevant to the issues raised by the evidence, even absent a request for such instruction from the parties. [Citation.] The obligation extends to instruction on lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense were 4 Although he does not identify a specific jury instruction or instructions that should have been given, defendant is presumably referring to CALJIC Nos (Sudden Quarrel or Heat of Passion and Provocation Explained), 8.43 (Murder or Manslaughter Cooling Period), and/or 8.44 (No Specific Emotion Alone Constitutes Heat of Passion). 6

7 present, but not when there is no evidence that the offense committed was less than that charged. [Citation.] (People v. Cruz (2008) 44 Cal.4th 636, 664.) [A] trial court must instruct on provocation/heat of passion as a theory of manslaughter, if supported by substantial evidence, even when the defendant objects on the basis that the instructions would conflict with his theory of the defense. [Citation.] (Ibid.) However, the substantial evidence required to trigger the duty to instruct on such lesser offense[] is not merely any evidence... no matter how weak [citation], but rather evidence from which a jury composed of reasonable [persons] could... conclude[] that the lesser offense, but not the greater, was committed. [Citations.] (Ibid., original italics.) We review de novo the question of whether the trial court erred in failing to instruct on a lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) Where an intentional and unlawful killing occurs upon a sudden quarrel or heat of passion ( 192, subd. (a)), the malice aforethought required for murder is negated, and the offense is reduced to voluntary manslaughter a lesser included offense of murder. (People v. Breverman (1998) 19 Cal.4th 142, ) (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) A heat of passion theory of manslaughter has both an objective and a subjective component. [Citations.] (People v. Moye (2009) 47 Cal.4th 537, 549; People v. Cole, supra, 33 Cal.4th at pp ) To satisfy the objective or reasonable person element of this form of voluntary manslaughter, the accused s heat of passion must be due to sufficient provocation. [Citation.] [Citation.]... The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] [Citation.] (Moye, supra, 47 Cal.4th at pp ; see also People v. Avila (2009) 46 Cal.4th 680, 705; Breverman, supra, 19 Cal.4th at p. 163; People v. Spurlin (1984) 156 Cal.App.3d 119, 126.) To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while 7

8 under the actual influence of a strong passion induced by such provocation. [Citation.] (Moye, supra, at p. 550; see also People v. Cole, supra, 33 Cal.4th at pp [defendant must actually, subjectively, kill under heat of passion].) The record here does not contain substantial evidence supporting an instruction on sudden quarrel/heat of passion manslaughter, as there was no evidence that defendant actually, subjectively, killed under such a heat of passion. (People v. Manriquez (2005) 37 Cal.4th 547, 585 [subjective element of sudden heat of passion killing not met where no showing that defendant exhibited anger, fury, or rage when he started firing handgun at victim].) To the contrary, there was evidence that defendant engaged in planning activity before shooting the victim (People v. Carasi, supra, 44 Cal.4th at p. 1307), and he was described by Barter as being very happy, excited, laughing after the shooting. Although there was evidence, highlighted by defendant on appeal, that he was intoxicated at the time of the shooting, a circumstance from which the jury might find that his action in response to provocation should be attributed to passion rather than judgment (People v. Cameron (1994) 30 Cal.App.4th 591, 601), there was no evidence that defendant in fact did act under [the heat of passion]. (Ibid.) Defendant points to evidence in the record supporting the inference that someone possibly shot toward Barter s truck on the night of the murder, as supporting a heat of passion theory. First, we agree with respondent that the evidence supporting such an inference is not as strong as defendant suggests. Additionally, there was no evidence presented as to the timing of such a shot (i.e., before or after defendant opened fire). Even assuming arguendo that the evidence sufficiently supports the inference that someone shot at defendant, this merely supports the defense theory that defendant acted in self-defense either reasonable self-defense (a complete defense to murder) or unreasonable or imperfect self-defense (a partial defense that reduces murder to manslaughter), but does not support a claim that defendant actually, subjectively, kill[ed] under the heat of passion, because there still was no evidence that defendant fired in the heat of passion. (People v. Moye, supra, 47 Cal.4th at p. 554.) [A]n instruction on heat of passion is [not] required in every case in which the only evidence of 8

9 unreasonable self-defense is the circumstance that a defendant is attacked and consequently fears for his life. (Id. at p. 555, original italics.) Had jurors believed defendant s theory that someone fired at him, they could have found him guilty of voluntary manslaughter. That jurors rejected this theory and convicted him of first degree murder shows that any possible instructional error here was harmless. (Post, II.A.4.) There was overwhelming evidence presented that defendant armed himself, traveled into Norteño territory to power up and handle his turf by targeting people who appeared to be rival gang members, and was happy when he got one of them. [N]o principle of law required the trial judge below to disregard the evidence in order to find that the jury should consider whether defendant subjectively killed in the heat of passion, when no substantial evidence supported that theory of manslaughter.... (Moye at p. 554.) Defendant also directs this court to evidence that he previously had been the target of threats from people who were presumably members of a rival gang, that he and his friends had discussed the fact that someone was after him, that defendant s grandmother had been fired upon by members of a subset of the Norteño gang, and that the victim and his companions were either members or associates of the Norteño gang. However, [t]he provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citation.] [T]he victim must taunt the defendant or otherwise initiate the provocation. [Citations.] (People v. Avila, supra, 46 Cal.4th at p. 705, italics added; see also People v. Moye, supra, 47 Cal.4th at pp ) Defendant armed himself before traveling into Norteño territory and shot at people who were posted up red, evidence that he sought targets based on their apparent gang affiliation and not based on any specific actions they took to provoke him. The fact that defendant might have been targeted by unnamed members of a rival gang in the weeks before the murder is insufficient to show provocation by the victim (or any of his companions) to warrant a heat of passion instruction. (Moye, supra, 47 Cal.4th at p. 550 [killing not voluntary manslaughter where sufficient time has elapsed after alleged 9

10 provocation]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 [passion for revenge does not reduce murder to manslaughter].) We agree with respondent that, were we to accept defendant s argument that being targeted by unidentified gang members constituted substantial evidence that his passions were inflamed and his reason impaired, this would entitle most gang members charged with murder to an instruction regarding voluntary manslaughter based on a sudden quarrel/heat of passion theory, regardless of the evidence of the victim s actions. The trial court did not err in omitting jury instructions on this theory of voluntary manslaughter. 3. Instruction regarding malice aforethought We also reject defendant s related argument, raised for the first time on appeal, that the trial court erred because it failed to instruct jurors (pursuant to some unspecified instruction) that the People had to prove the killing was not committed upon a sudden quarrel and/or heat of passion, thereby failing to properly instruct the jury on malice aforethought. In fact, the jury was instructed, pursuant to CALJIC No. 8.20: If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree. (Italics added; see also People v. Cole, supra, 33 Cal.4th at pp [provocation and heat of passion as used in CALJIC No bear their common meaning and require no further explanation where voluntary manslaughter on theory of heat of passion is not at issue].) People v. Rios (2000) 23 Cal.4th 450, upon which defendant relies, is not to the contrary. The Rios court held that provocation and imperfect self-defense are not additional elements of voluntary manslaughter that must be proved and found beyond a reasonable doubt in order to permit a conviction of that offense. (Id. at pp ) It stressed that where defendant proffers evidence of provocation/heat of passion or imperfect self-defense in a murder case, the People must then prove beyond a reasonable 10

11 doubt that these circumstances were lacking in order to establish the malice element of murder, and that CALJIC No so provides. (Rios at p. 462; see also Mullaney v. Wilbur (1975) 421 U.S. 684, 703 [prosecution must prove beyond reasonable doubt the absence of heat of passion or sudden provocation when issue properly presented].) Again, because the record lacks sufficient evidence that defendant actually acted in the heat of passion, no such jury instruction was required. 4. Harmless error Even assuming arguendo that it was error for the trial court to fail to instruct on the heat of passion theory of voluntary manslaughter, any such error was harmless because it is not reasonably probable that defendant would have obtained a more favorable outcome had the jury been so instructed. (People v. Moye, supra, 47 Cal.4th at pp ; People v. Watson (1956) 46 Cal.2d 818, 836.) Once the jury rejected defendant s claims of reasonable and imperfect self-defense, there was little if any independent evidence remaining to support [a] further claim that he killed in the heat of passion.... (Moye at p. 557.) To the contrary, overwhelming evidence established beyond a reasonable doubt that defendant planned to shoot someone, sought out a victim who appeared to be a rival gang member, and was happy after the shooting and said we got him. Moreover, the jury having rejected the factual basis for the claims of reasonable and unreasonable self-defense, it is not reasonably probable that the jury would have found the requisite objective component of a heat of passion defense (legally sufficient provocation) even had it been instructed on that theory of voluntary manslaughter. (Ibid., original italics.) Upon examining the entire cause, including the evidence (Cal. Const., art. VI, 13), we conclude it is not reasonably probable defendant would have obtained a more favorable outcome at trial had a heat of passion instruction been given. [Citation.] (Id. at pp ) 5. Ineffective assistance of counsel claim Defendant also argues that he received ineffective assistance of counsel because his trial attorney failed to request that the jury be instructed on evidence of provocation 11

12 pursuant to CALJIC No or CALCRIM No In order to show ineffective assistance of counsel, defendant must show both that counsel s performance was deficient and that the performance prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 687.) As for the second prong, a defendant establishes prejudice by demonstrating that without the deficient performance there is a reasonable probability the result would have been more favorable. In other words, even if counsel s actions fall below the threshold of reasonableness, appellant must still demonstrate that counsel s actions were prejudicial. [Citation.] (In re Elizabeth G. (2001) 88 Cal.App.4th 496, 503.) CALJIC No is a pinpoint instruction on the effect of provocation, a refinement of the basic principles set forth in CALJIC No [(Sudden Quarrel or Heat of Passion and Provocation Explained)], which we have already concluded was not warranted on this record. (People v. Ward (2005) 36 Cal.4th 186, 214.) A pinpoint instruction relate[s] particular facts to a legal issue in the case or pinpoint[s] the crux of a defendant s case, such as mistaken identification or alibi. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) A trial court has no sua sponte duty to give such a pinpoint instruction where it does not relate to a defense but rather to an attempt to raise a reasonable doubt as to an element of a crime. (Id. at p. 1120; People v. Middleton (1997) 52 Cal.App.4th 19, 33 [no sua sponte duty to give CALJIC No. 8.73], disapproved on 5 The instruction provides: If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation. 6 The instruction provides, in relevant part: Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [ ] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.] 12

13 another ground in People v. Gonzalez (2003) 31 Cal.4th 745, 752, fn. 3; People v. Lee (1994) 28 Cal.App.4th 1724, 1734 [same].) The evidentiary premise of a provocation defense is the defendant s emotional reaction to the conduct of another, which emotion may negate a requisite mental state. (People v. Ward, supra, 36 Cal.4th at p. 215.) In Ward, defendant argued that gang challenges by a victim may have emotionally aroused and provoked [defendant s] assault on the victims. (Ibid.) Because the record contained no evidence of what, if any, response defendant had to the purported gang challenges, the Supreme Court concluded that there was no evidentiary basis to give CALJIC No. 8.73, even though the trial court had instructed jurors on the heat of passion defense pursuant to CALJIC No (Ward at pp ) Likewise here, there was no evidence of what effect the shot allegedly fired toward Barter and defendant at some point during the evening had on defendant, so there was no factual basis for the instruction. In light of our conclusion that there was no substantial evidence supporting a sudden quarrel/heat of passion defense, we find that the omission of CALJIC No had no reasonable probability of contributing to the verdict of first degree murder. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Middleton, supra, 52 Cal.App.4th at p. 34.) Defendant therefore suffered no prejudice from the exclusion of the instruction, and we therefore reject defendant s claim of ineffective assistance of counsel. 6. Cumulative prejudice Defendant argues that the trial court errors and deficient trial counsel performance identified above, even if nonprejudicial when considered individually, had a cumulative effect that resulted in prejudice sufficient to justify reversal. We have considered each of defendant s claims on the merits, and neither singly nor cumulatively do they establish prejudice requiring the reversal of the [murder] conviction[]. (People v. Kipp (1998) 18 Cal.4th 349, 383.) Defendant was not denied his federal and state constitutional rights to a fair trial. (U.S. Const., 14th Amend.; Cal. Const., art. I, 15; People v. Kipp at p. 383.) 13

14 B. Sufficient Evidence Supports Gang Findings. 1. Background Defendant argued before trial, both in written submissions and at pretrial hearings, that the prosecution s gang expert should not be permitted to render an ultimate opinion as to whether defendant had the specific intent to promote, further, or assist in criminal conduct by members of a criminal street gang ( , subd. (b)). The trial court agreed that the expert would not be permitted to testify regarding defendant s subjective intent. A Brentwood police officer testified as an expert in gangs in East County. He testified that LMT was a subset of the Sureño gang, and that both were criminal street gangs, as defined by section , subdivision (f). The primary activities of the Sureños and LMTs include murder, attempted murder, and assault with a deadly weapon. According to the expert, defendant had admitted to being a Sureño and a member of the LMT subset gang, he had a tattoo of LMT on his hand, his gang moniker was Tiny, and defendant had tagged his moniker in Norteño territory to show the rival gang disrespect. The gang expert also testified that LMT gang members who attack rival gang members gain respect among their fellow gang members, and that this is especially true when LMTs attack Norteños in what is considered to be Norteño territory, because that sends the message that LMTs can go anywhere they want at any time. Gang members who commit crimes against rival gang members want to have a witness to the crimes, because then the witness can vouch for the gang member and give him credit for committing a particular crime, according to the expert. The expert opined that if a Sureño gang member entered Norteño territory and fired on people suspected to be Norteños, this would benefit the Sureño gang because it would create respect, fear, and intimidation in both the Sureño and Norteño gang members. He testified that intimidation, respect and fear [are] basically what a gang covets from the other gang members, as well as their fear, the more fear that you can instill and intimidate the better. 14

15 And that gang s respect. Respect is used for movement up the chain of command and the leadership of a gang. The jury found true the allegations that each of the charged crimes was committed for the benefit of, at the direction of, or in association with LMT, and that defendant acted with the specific intent to promote, further, or assist in criminal conduct by gang members. ( , subd. (b)(1).) In connection with counts 1 (first degree murder), 2 (shooting at an inhabited dwelling), and 6 (shooting from a motor vehicle), the jury found true the firearm enhancement ( ), which was dependent on the gang finding pursuant to section , subdivision (e)(1)(a). 2. Analysis Defendant argues that there was insufficient proof to support the true findings on the gang enhancements, a claim we review for substantial evidence. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.) The gang enhancement requires proof that defendant committed the crimes 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. 7 ( , subd. (b); People v. Gardeley, supra, 14 Cal.4th at pp ) Although defendant all but concedes that there was sufficient evidence that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang, he argues that there was no evidence that he acted with the specific intent to promote, further, or assist in criminal conduct by gang members. Substantial evidence supports the gang findings. There was evidence that defendant identified people standing on West Boulevard (in Norteño territory) as Norteños, and that he wanted to power up and handle his turf. The gang expert 7 The prosecution must also prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a pattern of criminal gang activity by committing, attempting to commit, or soliciting two or more of the enumerated offenses... during the statutorily defined period. (People v. Gardeley (1996) 14 Cal.4th 605, 617, italics omitted.) Defendant does not challenge the sufficiency of proof as to these elements. 15

16 explained that an attack in rival gang territory would create respect, fear, and intimidation for both Sureño and Norteño gang members, and that the more fear that you can instill and intimidate the better. He testified that [y]oung Sureno gang members or associates, they instill the fear, the leadership so that they can keep them in line. And at the same time the Nortenos are living in fear from Surenos. This was sufficient evidence that defendant acted for the benefit of a criminal street gang, and that he acted with the specific intent to promote criminal conduct by gang members. (People v. Vazquez (2009) 178 Cal.App.4th 347, 353 [gang expert testimony that violent crimes increase respect for gang and facilitate criminal activity by intimidating rival gang members]; People v. Hill (2006) 142 Cal.App.4th 770, [substantial evidence supported gang finding where expert testified that criminal threat showed that gang could not be disrespected without consequences].) Although it is true that the gang expert did not testify regarding defendant s specific intent, this was because the trial court correctly barred such testimony after defendant argued that such evidence was inadmissible. (E.g., People v. Killebrew (2002) 103 Cal.App.4th 644, 658 [impermissible for gang expert to testify regarding suspects knowledge and intent on the night of crime].) Relying on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, defendant argues that there was insufficient evidence that the crimes in this case were committed with the specific intent to promote additional crimes by the Surenos or the LMT gang. (Italics added.) The Ninth Circuit concluded in Garcia that there was insufficient evidence of defendant s specific intent to promote, further, or assist in other criminal activity of a criminal street gang. (Id. at p. 1104, italics added.) We agree with the California courts that have concluded that Garcia misinterpreted state law, because section , subdivision (b) does not require proof that defendant s intent to enable or promote criminal gang activity must relate to activity apart from the offense that defendant commits. (E.g., People v. Romero (2006) 140 Cal.App.4th 15, 19 [statute requires a showing of specific intent to promote any criminal conduct by gang members, not other activity, italics added]; accord, People v. Vazquez, supra, 178 Cal.App.4th at p. 353; People v. Hill, supra, 142 Cal.App.4th at p. 774; see also People v. Burnett (2003) 16

17 110 Cal.App.4th 868, 882 [federal authority not binding in matters involving state law].) It was unnecessary for the prosecution to prove that defendant here had the specific intent to promote additional criminal conduct by gang members, other than the crimes he committed. Because we find sufficient evidence to uphold the gang enhancement, we also uphold the dependent firearm enhancement. (People v. Romero, supra, 140 Cal.App.4th at p. 20.) C. Consecutive Term for Street Gang Enhancement. The trial court sentenced defendant to a term of 25 years to life for his first degree murder conviction, plus a consecutive term of 25 years to life for the firearm enhancement on that count ( , subd. (d)). The court also imposed an additional 10-year consecutive sentence for the gang enhancement ( , subd. (b)(1)(c)). Defendant argues that the 10-year sentence was error. Respondent concedes that the trial court erred, and we agree. Section , subdivision (b)(1)(c) authorizes the court to impose a 10-year sentence if a defendant commits a violent felony either for the benefit of, at the direction of, or in association with a criminal street gang. However, if the defendant is convicted of a felony punishable by life imprisonment, the 10-year enhancement authorized under subdivision (b)(1)(c) does not apply. (People v. Fiu (2008) 165 Cal.App.4th 360, 390.) Instead, the enhancement provides that the defendant shall not be paroled until a minimum of 15 calendar years have been served, pursuant to subdivision (b)(5). (Fiu at p. 390.) The determinate term enhancement provided for in subdivision (b)(1)(c) is to be applied only when the conviction is of a violent offense for which a determinate term is proscribed; if the conviction is of a crime for which an indeterminate term of life in prison is proscribed, the limitation upon parole eligibility provided for in subdivision (b)(5) is applicable. If the parole limitation of subdivision (b)(5) is applicable, the 10-year enhancement is not. (People v. Lopez (2005) 34 Cal.4th 1002, 1007.) (Ibid., fn. omitted, some original italics, some italics omitted.) Defendant s sentence on count 1 was for an indeterminate term of 25 years to life, plus 25 years to life for the firearm enhancement. Therefore, the trial court erred in 17

18 imposing the 10-year gang enhancement, pursuant to section , subdivision (b)(1)(c). Instead, the court should have imposed a limitation upon the defendant s minimum parole eligibility of 15 years, pursuant to section , subdivision (b)(5). The abstract of judgment should be amended to strike the 10-year consecutive sentence, to be replaced with a 15-year minimum parole eligibility. D. Sufficient Evidence to Support Firearm Enhancement. Defendant next argues that there was insufficient proof to support the firearm enhancement in connection with his conviction for shooting at an inhabited dwelling ( 246 count 2). Defendant s conviction on count 2 required proof that he intentionally discharged a firearm at an inhabited dwelling house or occupied building. ( 246; People v. Overman (2005) 126 Cal.App.4th 1344, 1356.) As the jury was instructed, shooting at an inhabited dwelling includes shooting in such close proximity to the target that a probable consequence of the shooting is that one or more bullets either will strike the target or persons in or around it, and the shooter acted with a conscious disregard for this probable consequence. (CALJIC No ) The prosecution argued that the jury should convict defendant on count 2 because when defendant shot at the victim and his companions standing in front of a building, he acted with conscious disregard for the probable consequence that a bullet would strike the building. The jury convicted defendant on this count, and defendant does not challenge the sufficiency of the evidence supporting the conviction. The jury also found true the firearm enhancement pursuant to section , subdivision (d), which at the time that defendant committed the crime provided: [A]ny person who is convicted of... Section , and who in the commission of that felony intentionally and personally discharges a firearm and proximately causes great bodily injury... or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to 18

19 life. 8 Defendant argues that insufficient evidence supports the true finding on the enhancement in connection with count 2, because there was no evidence that the bullet that struck the residence behind the victim proximately caused great bodily injury or death ( , subd. (d)). We disagree. A similar argument was considered, and decided adversely to defendant, in People v. Mason (2002) 96 Cal.App.4th 1. In Mason, three men associated with a gang entered a motel room where members of a rival gang and their friends were having a party. (Id. at p. 6.) One man (appellant) robbed some of the motel room occupants at gunpoint, brutally beat one of them, then shot the victim execution-style, killing him. (Id. at p. 7.) Appellant received seven separate 25-year-tolife enhancements pursuant to section , subdivision (d), for his convictions for murder, robbery, and attempted robbery. (Mason at p. 10.) Appellant argued that the enhancement should apply only to his murder conviction, and not to his robbery and attempted robbery convictions because the enhancement should apply only when the victim of a qualifying felony is the person injured or killed. (Id. at pp ) The Mason court rejected this argument. (People v. Mason, supra, 96 Cal.App.4th at pp. 3, 14.) In analyzing the statutory language, the court noted that section applies to a defendant who proximately causes great bodily injury or death to any person, as opposed to the victim of the underlying crime. (Mason at p. 11.) The court also stressed that in enacting the statute, the Legislature expressly declared its intent that longer prison sentences be imposed on felons who use firearms in the commission of their crimes. (Id. at p. 12.) [T]he policy behind a sentence enhancement for firearm use in the commission of a felony that results in great bodily injury or death supports imposition of sentence enhancements for each of the robbery and attempted robbery counts. The use of a firearm and shooting of [the victim] increased the risk of harm to all the victims, whether from an errant bullet or the turmoil following the shooting. It also 8 The statute was later amended, and subdivision (d) was reworded. Subsequent references to section are to the version of the statute in effect when defendant committed his crimes. Defendant s sentences on count 2 and the accompanying enhancement were stayed pursuant to section

20 increased the other victims fear, having witnessed [the victim] being shot at point blank range to the head and thinking that they might be next. Even though the victims of the attempted robberies were not themselves injured or killed, the shooting of [the victim] increased the harm and danger to each one of them, thus justifying imposition of the section (d) sentence enhancement as to each of the robbery and attempted robbery counts. (Ibid.; see also People v. Bland (2002) 28 Cal.4th 313, 338 [ does not require that defendant fire bullet that directly inflicts harm, only that defendant s personal discharge of firearm was proximate, i.e., substantial, factor contributing to result].) Likewise here, defendant contends that a true finding on the firearm enhancement in connection with his conviction of shooting at an inhabited dwelling required proof that the same bullet that struck the residence near the victim was the cause-in-fact of the victim s death, or a substantial factor in his injury and death. [T]he phrase any person [in section , subdivision (d)] describes not just the victim of one of the enumerated felonies, but any other person, so long as that person suffered great bodily injury or death in the commission of the felony. (People v. Mason, supra, 96 Cal.App.4th at p. 11, original italics.) The record reveals that defendant fired several shots into a group of people standing next to a residence, that one bullet hit the residence and two bullets struck victim Hilliard, and that all shots were fired with a conscious disregard of the probable consequence that one or more bullets would strike either the inhabited dwelling or the people around it. (CALJIC No ) We conclude that this was sufficient evidence that defendant proximately caused injury in the commission of shooting at an inhabited dwelling. ( , subd. (d); Mason, supra, at p. 11; see also People v. Overman, supra, 126 Cal.App.4th at p [violation of 246 where defendant shoots in such close proximity to the target that he shows a conscious indifference to the probable consequence that one or more bullets will strike the target or persons around it ].) Even though there is no evidence that anyone was injured or even struck by the bullet that hit the residence, the shooting of [Hilliard] increased the harm and danger to [everyone in the area], thus justifying imposition of the 20

21 section (d) sentence enhancement as to the shooting at an inhabited dwelling count. 9 (Mason, supra, 96 Cal.App.4th at p. 12.) Sufficient evidence supports the firearm enhancement on count 2. III. DISPOSITION The 10-year enhancement imposed on count 1 pursuant to section , subdivision (b)(1), is ordered stricken. The abstract of judgment shall be modified to reflect a sentence on count 1 of 25 years to life, plus a consecutive term of 25 years to life for the firearm enhancement on that count ( , subd. (d)), with a minimum parole eligibility of 15 years. The trial court is directed to prepare an amended abstract 9 People v. Garcia (2002) 28 Cal.4th 1166, upon which defendant relies, is not to the contrary. Garcia analyzed the applicability of section , subdivision (e)(1), which imposes vicarious liability under the statute on aiders and abettors who commit crimes in connection with a criminal street gang. (Garcia at pp ) The court held that a true finding on the enhancement as to an aider and abettor who was not a shooter did not require proof of the conviction of the shooter principal. (Id. at p ) In reaching this conclusion, the court noted that the statute as applied to a defendant/shooter is arguably unambiguous: a defendant who is convicted of a specified felony and is found to have intentionally and personally discharged a firearm proximately causing great bodily injury or death when committing that felony, is subject to section , subdivision (d). (Id. at p ) Defendant would have this court read the reference to that felony (ibid.) to mean that the prosecution is required to prove that the injury took place in connection with the specific felony attached to the enhancement, a question that was not addressed in Garcia. For the reasons set forth in People v. Mason, supra, 96 Cal.App.4th 1, we conclude that the prosecution was not required to prove that the bullet that hit the residence near the victim in this case also caused great bodily injury or death. 21

22 of judgment, and a certified copy of the modified abstract shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed. Sepulveda, J. We concur: Reardon, Acting P.J. Rivera, J. 22