THE PEOPLE v. LUIS SANCHEZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. LUIS SANCHEZ, Defendant and Appellant.

B218796

Decided: February 24, 2011

Feria & Corona and Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Luis Sanchez appeals from a judgment of conviction of three counts of attempted murder, three counts of shooting from a motor vehicle, and three counts of assault with a firearm.   He contends that the judgment must be reversed due to a coerced confession and involuntary waiver of his constitutional rights.   Defendant also seeks correction of several sentencing errors.   We conclude that defendant's confession was not coerced, and that his waiver was voluntary, but agree that the judgment should be modified to correct the various sentencing errors.   We thus modify and affirm the judgment.

BACKGROUND

1. Procedural Background

Defendant was charged with the following felonies arising from a shooting that occurred May 29, 2008:  count 1, attempted willful, deliberate, premeditated murder of Randolph McKie (McKie) in violation of Penal Code sections 187, subdivision (a) and 664 1 ;  count 2, attempted willful, deliberate, premeditated murder of Terry Dozier (Dozier) (§§ 187 & 664);  count 3, attempted willful, deliberate, premeditated murder of Debruce Smith (Smith) ( §§ 187 & 664);  counts 4, 5, and 6, shooting at each of the three victims from a motor vehicle (§ 12034, subd. (c));  and counts 7, 8, and 9, assault with a firearm against each victim (§ 245, subd. (a)(2)).

With regard to counts 1 through 6, the information specially alleged, pursuant to section 12022.53, subdivisions (b), (c), and (d), that defendant personally used a handgun, personally and intentionally discharged a handgun, causing great bodily injury to Dozier.   With regard to counts 7 through 9, the information alleged that defendant personally used a handgun, within the meaning of section 12022.5.   In addition, count 7 alleged that defendant personally inflicted great bodily injury upon McKie, and count 8 alleged that defendant personally inflicted great bodily injury upon Dozier, both within the meaning of section 12022.7, subdivision (a).   With regard to all counts, the information alleged, pursuant to section 186.22, subdivision (b)(1)(C), that the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members.

Prior to trial, defendant brought a motion to suppress his confession.   The trial court heard the testimony of witnesses, including defendant, and denied the motion.   At the same time, the trial court overruled defendant's Evidence Code section 352 objection to earlier statements in which defendant had expressed anger toward persons who had shot him in March 2008.

The jury convicted defendant of all nine counts, and found true all the enhancement allegations except the enhancement provisions alleging that defendant caused great bodily injury to McKie or Dozier.   The trial court sentenced defendant to a total of 70 years to life in prison.

Defendant filed a timely notice of appeal from the judgment.

2. Prosecution Evidence

On May 29, 2008, at approximately 7:40 p.m., McKie rode his bicycle next to his two friends, Smith and Dozier, who were on foot near Locust Avenue and Hill Street in Long Beach.   Just before they reached Locust Avenue, a green Honda with two occupants turned into the alley in front of them, blocking their way.   Defendant, who was in the front passenger seat of the Honda, brought out a gun, pointed it at the three men, and fired five times in rapid succession.   Dozier was struck by a bullet in the right shoulder and McKie was struck in the leg as he ran for some nearby stairs.   Smith ran across the street, and escaped injury.   The Honda then drove off.   McKie identified defendant in a photographic lineup and in court as the shooter, and testified that he recognized the gun as a .357 revolver.

Long Beach Police Officer Chris Brammer testified that he arrived on the scene of the shooting shortly afterward, and spoke to McKie, who described the shooter as male Hispanic, approximately 19 years old, wearing a white T-shirt and a royal blue Los Angeles Dodgers hat.   Officer Brammer broadcast the suspects' descriptions within a few minutes.   The next day, he arrested defendant for possession of marijuana.

Officer Christopher Valdez testified that he had seen defendant earlier in the day of the shooting, one block west of the where it occurred.   Defendant was wearing a blue Los Angeles Dodgers hat and a white T-shirt.   Officer Valdez and Officer Sean Magee testified that they had had prior contacts with defendant, and knew him to be a member of the Mid-City Stoners gang (MCS).

Detective Paul Wright interviewed defendant the evening of his arrest, beginning at 6:30 or 6:45 p.m., when he was a person of interest in the shooting, but not yet a suspect.   At first, defendant told him that at the approximate time of the shooting, defendant had been in the area to pick up a pit bull puppy from his friend Francisco.   About two hours into the interview, Detective Wright read defendant his rights, as required by Miranda v. Arizona (1966) 384 U.S. 436, 444 (Miranda ),2 and obtained his signature on an admonishment form.

Detective Carlos Grimaldo was involved in the investigation, and spoke to McKie at the emergency room the evening of defendant's arrest.   He showed McKie a photographic lineup from which McKie identified defendant as the shooter in less than a minute.   Detective Grimaldo then returned to the station where defendant had been detained, and interviewed him.   Defendant appeared to be clear-headed, and at no time during his interview did he seem groggy or under the influence of drugs or medication.   Detective Grimaldo advised defendant that he had been positively identified in a photographic lineup by the victim, and that the clothing defendant was wearing matched the victim's description of the shooter.   Defendant looked remorseful, and then said he would tell them exactly what had happened.

Defendant admitted that he was a member of MCS, a criminal street gang, and that his moniker was Darkie.   He said that he had gone to a liquor store to buy cigarettes, where he met his friend, Dopey, who offered defendant a ride in his green Honda.   Defendant got into the front passenger seat, and as Dopey drove eastbound on Hill, defendant showed Dopey his gun.   When they saw two or three African-American males walking on the sidewalk of Hill Street near Earl Street, Dopey asked defendant if he knew them.   When defendant said he did not, Dopey directed defendant to handle or commit the crime, as he gave the gun back to defendant.   Defendant said he then stuck the gun out the window, pointed it at the men, and fired approximately two times.   Defendant claimed that the gun was a .22-caliber revolver, and that it had been loaded with only two rounds.   Dopey then drove to a river bed overpass where defendant threw the handgun into the river bed, along with two casings.

After defendant gave this story to the officers, they began recording the interview, and defendant told essentially the same story on tape.   Defendant was very cooperative, and Detective Wright denied using any tactics, such as a promise of leniency or threat of a long sentence, to get a confession.   The tape was played for the jury.

A search of defendant's apartment after his arrest turned up notebooks with gang graffiti, blue shorts he had been wearing the day of the shooting, several bullets, including a .357 hollow point round for a revolver, and other items.

Approximately two months before the shooting in this case, Officer Brammer had met defendant at a hospital where defendant was treated for a gunshot wound to the head.   Officer Brammer saw the wound, spoke to the doctor, and interviewed defendant, who told him that he had been shot by some African-Americans.   Speaking of his assailants, defendant said:  “Fuck those pinche mayates.   I will take care of them.   I'm going to cap those mayates.”  (Italics added.)   Officer Brammer explained that mayates is a derogatory term for African-Americans, and that pinche is the “F-word” in Spanish.  “Cap” was street slang for shooting someone.   Defendant also said, “I'm from Mid-City Stoners.   I'm from MCS.” When Officer Brammer stopped defendant about a month later, defendant told him that he was doing well, and said that he thought that some African-American men on the eastside of Pacific Avenue had been involved in the shooting.

Detective Hector Gutierrez testified about gang culture as the prosecution's gang expert.   He testified that the primary violent activities of MCS included robberies, homicides, and drive-by shootings.   He explained that criminal gangs were territorial, and that they protected their territory with violence, to instill fear in the community.   Gang members protected themselves and gained prestige within the gang by using violence on the gang's behalf.

Detective Gutierrez gave his opinion that the shooting of McKie, Dozier, and Smith was committed for the benefit of the gang, perhaps in retaliation for the previous shooting of defendant.   He explained that “handles” meant to do “what you got to do.”   In his opinion, when Dopey said, “handles,” to defendant just before the shooting, it was a signal to defendant to commit the crime in order to enhance his reputation and the gang's reputation.

3. Defense Evidence

Defendant claimed he had smoked marijuana the day he was arrested and was “just burning out” or “leveling off” when the police interviewed him.   He testified that he fabricated his confession, because the police told him that he would get just two years in prison if he went along with their version.   He thought he had made a two-year deal when they began recording him.   Defendant acknowledged that the officers did not threaten him with 75 years to life in prison.

Defendant acknowledged that he was informed of his rights and signed the form stating that he had understood them.   He also admitted that he told the officers he understood his rights, was promised nothing, and was cooperating of his own free will.   Although defendant claimed at trial that he asked the detective to call his mother, he also testified that he did not want to have to make his mother deal with calling a lawyer.

Defendant admitted that he had been a member of the MCS gang for seven years, since he was 11 years old.   He denied that the gang claimed any territory, or that it had a problem with African-American gangs.   He admitted that a few members carried guns and got into fights, but denied that they shot people.   Defendant claimed that he had never owned a gun, and the bullets found in the search of his room were bullets he had found on the street and had put on a shelf with his childhood toys.

Testifying as an eyewitness identification expert, experimental psychologist Dr. Robert Shomer cited studies had shown that in highly stressful circumstances, the accuracy of identification deteriorated from an average of 53 percent to an average of 30 percent.   Dr. Shomer also explained how photographic lineups can influence a witness's identification and subsequent memory of the perpetrator's appearance.   Ultimately Dr. Shomer acknowledged that a witness to a high stress incident can still make a correct identification.

4. Motion to Suppress Confession

A. Detective Wright's Testimony

In the pretrial motion hearing held outside the jury's presence, Detective Wright testified that on May 30, 2008, after he and patrol officers had detained defendant for possession of marijuana, he received word that defendant matched the description of the shooter from the incident the previous evening.   The officers brought defendant to a juvenile facility around 5:30 to 5:40 p.m., and at approximately 6:00 or 6:15 p.m., Detective Wright took him to an interrogation room at the police station, where Detective Wright interviewed defendant while other officers went to show photographs to one of the victims.

Detective Wright told defendant that he matched a description given after two African-American men had been shot the day before, and asked whether he knew anything about it.   As far as Detective Wright recalled, defendant did not ask to call his mother, and no one called her, or advised defendant that he had a right to make two calls within two hours of his detention.   Defendant was cooperative, and did not ask to speak with an attorney.   Defendant denied involvement in the shooting, and told the detective that at approximately 5:30 p.m. on the evening of the shooting, he was at the home of his friend on Pine Avenue, to pick up a pit bull puppy.

Once Detective Wright was informed that the witness had positively identified defendant's photograph in the photographic lineup, Detective Wright advised defendant that he was under arrest for the investigation of the shooting, and read Miranda warnings to him from a form.   Defendant reviewed the form, initialed each right, and signed it at approximately 8:50 p.m.

Other detectives arrived about 9:35 p.m., and the interview continued with the three detectives.   When Detective Grimaldo showed defendant that he had been identified in the photographic lineup, defendant put his head down and said, “All right.   I was there.”   Defendant's story changed a few times, so they got from him the “nutshell of a story, like pretty much what happened” before recording it, about an hour and a half later.   The detectives did not threaten defendant or promise him anything, such as a lesser sentence or charge.

B. Defendant's Testimony

Defendant testified at the hearing that when he was detained, the officers did not read him any Miranda warnings until 8:50 p.m., gave him no opportunity to call his mother, and took his cell phone away and turned it off before he could take a call from his mother.   He had wanted to call his mother from the beginning of the interview, and claimed that he asked to do so more than five times, but the detectives offered excuses.   They gave him food and water, but he did not eat.

Defendant claimed that at approximately 5:15 p.m., the detectives promised that if he took the blame, they would tell the judge to give him a two-year sentence.   At first, defendant testified that the detectives made no threats, but later in his testimony, he claimed that they threatened him with 75 years in prison.   Defendant had never been in trouble before, and felt that he had to do what they told him.   Before the taping began, he told the officers three times that he had been down the block “hanging around” with his friend, Francisco, but they did not believe him.

Defendant testified that he was “burning out” from his marijuana high, grew tired, and felt that the detectives were trying to intimidate him;  so he just fabricated whatever they wanted to hear.   At 8:50 p.m., the detectives advised defendant of his constitutional rights to remain silent and have an attorney appointed.   Defendant testified that he dropped out of school in the ninth grade, and claimed that he could not read very well, but admitted that he read, understood, and signed a form stating his rights, that he understood each of the rights, and that he initialed them.   He did not ask for a lawyer, but claimed that he kept asking to call his mother.

Defendant gave the detectives three versions of his fabricated story.   When they heard a version they wanted, they went over it with him several times and wrote it down.   Defendant claimed that when they began recording, he had the answers in front of him, like a script.

C. Detective Grimaldo's Testimony

Detective Grimaldo testified that he interviewed defendant for approximately an hour and a half the evening of his arrest.   Detective Grimaldo denied that defendant asked to speak to his mother at any time, or that he asked for the presence of his mother, an attorney, or any other adult.   Defendant was cooperative and answered his questions, although he told several different stories before the recording began.   Then Detective Grimaldo told defendant that he had been positively identified by a witness, and had been seen hours before the shooting in the same clothing described by the witness.   When Detective Grimaldo showed defendant the photographic lineup from which he had been identified, he admitted that he had shot at the victims with a gun he later threw into the Los Angeles River.

Defendant was given no promise of leniency, and none of the officers threatened him or told him he could not talk to his mother until after he told the officers what they wanted to hear.   No officer told defendant that if he cooperated, he would tell the judge to give him only two years in prison.

Defendant was cooperative throughout the recorded and unrecorded parts of the interview, and the last unrecorded story he gave was consistent with what he said on tape.   Although Detective Wright took notes, defendant was given no script or notes.   Detective Grimaldo explained that it was a common police practice not to record an interview until officers heard what they thought was the truth, because suspects often gave false information at first.

D. The Trial Court's Ruling

The trial court denied the motion to suppress the confession.   The court found that any delay in defendant's detention was due to the officers' verification of his identity, and was not a factor indicating coercion.   The trial court did not believe defendant's testimony regarding the major issues, and found the officers' testimony believable.   The court concluded that defendant had been given his Miranda warnings, and that the evidence failed to show coercion.

DISCUSSION

I. Validity of the Confession and Waiver of Rights

Defendant contends that the totality of the circumstances shows that his confession was involuntary, due to the disadvantage caused by his age and lack of sophistication and experience, which made it difficult to resist interrogation techniques that included implied promises of leniency.   He also contends that the prosecution did not meet its burden to show that he understood his Miranda advisement, or that his waiver of constitutional rights was voluntary.   He contends that his waiver of rights and confession must be deemed involuntary, for the additional reason that the officers failed to comply with Welfare and Institutions Code sections 626 and 627.3

A. Standard of Review

An involuntary confession is inadmissible under the due process clause of the Fourteenth Amendment, as well as article 1, section 15 of the California Constitution.  (People v. Benson (1990) 52 Cal.3d 754 (Benson ), citing Jackson v. Denno (1964) 378 U.S. 368, 385-386.)  “[C]oercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’․”  (Colorado v. Connelly (1986) 479 U.S. 157, 167;  see also Benson, supra, at p. 778.)   We look to the totality of circumstances to determine whether a confession was the result of police coercion;  factors include the location, length of the interrogation and whether it was continuous, the defendant's maturity, education, physical and mental condition, and whether the police advised the defendant of his rights.  (Withrow v. Williams (1993) 507 U.S. 680, 693-694;  People v. Williams (1997) 16 Cal.4th 635, 660.)

We apply the same totality of circumstances approach to juveniles in determining the validity of a juvenile's confession and waiver of rights, evaluating “the juvenile's age, experience, education, background, and intelligence, and [inquiry] into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.”  (Fare v. Michael C. (1979) 442 U.S. 707, 724-725 (Fare );  People v. Lessie (2010) 47 Cal.4th 1152, 1169 (Lessie ).)   The minor's age is just one factor to be considered.  (In re Anthony J. (1980) 107 Cal.App.3d 962, 971-972.)

Although we independently determine the ultimate legal issue of the voluntariness of the confession, the trial court's factual findings are reviewed under the deferential substantial evidence standard.  (Benson, supra, 52 Cal.3d at p. 779.)   We also independently decide whether a Miranda waiver was valid, but accept the trial court's determination of disputed facts if supported by substantial evidence.  (Lessie, supra, 47 Cal.4th at p. 1169.)   Under a substantial evidence review where the testimony was conflicting, as it was here, we “ ‘must “accept that version of events which is most favorable to the People, to the extent that it is supported by the record.” ’  [Citation.]”  (People v. Thompson (1990) 50 Cal.3d 134, 166.)

B. The Confession was Voluntary

Considering the factors enumerated in People v. Williams, supra, 16 Cal.4th at pages 659-660 (location, length and continuity of the interrogation), defendant's maturity, education, physical and mental condition, and Miranda warning-defendant has analyzed the evidence in the light most favorable to the defense.   He contends that the confession was involuntary due to the following facts:  the interrogation lasted continuously for five hours;  defendant was a juvenile and poorly educated;  the police refused to allow him to take a call from his mother and did not allow him to call her, despite repeated requests;  no attorney was provided;  the officers told him that he would face 75 years in prison if he did not cooperate, but would tell the judge to give him just two years if he did;  defendant felt intimidated and tired;  he did not eat anything;  he was “coming down” from the effects of marijuana;  and the detectives failed to comply with Welfare and Institutions Code sections 626 and 627.

Defendant acknowledges that the officers who testified gave an account that conflicted with his summary but argues that the fact that the officers recorded the interrogation only after they heard a version they believed, suggests that they were not telling the truth.  “We must accept factual inferences in favor of the trial court's ruling.  [Citation.]  If there is conflicting testimony, we must accept the trial court's resolution of disputed facts and inferences, its evaluations of credibility, and the version of events most favorable to the People, to the extent the record supports them.  [Citations.]”  (People v. Zamudio (2008) 43 Cal.4th 327, 342 (Zamudio ).)

Here, the version of events believed by the trial court is supported by the evidence, and considering the same factors, that evidence does not suggest coercion.   Defendant's maturity level was almost that of an adult.   He was a juvenile, but he was nearly 17 and one-half years old, not so young as to suggest coercion.   His formal education extended into the ninth grade, and as respondent points out, defendant's testimony showed him to be articulate and capable of understanding the questions put to him, and of answering them appropriately.   Defendant's reading ability was not as poor as he claims.   He acknowledged that he had read and understood the Miranda advisement form.

Defendant was held in an interrogation room for approximately five hours, but the officers did not threaten him or make promises.   Detective Wright testified that some of the time before 8:50 p.m. consisted of casual conversation and waiting for an identification from one of the victims.

Defendant's physical and mental condition did not suggest coercion.   He was apparently calm, as both officers testified that he was cooperative, and Detective Grimaldo found him stressed, but not belligerent.   He had smoked marijuana, but was “leveling off.”   Although defendant chose not to eat, he was given food and water.

Finally, defendant was given Miranda warnings.   He was advised of his constitutional rights to remain silent and to the presence of an attorney, and he was warned that any statement he made could be used as evidence against him.   Although defendant acknowledges that he was given Miranda warnings, he points out that this is just one of the factors to be considered.   As this factor and the remaining factors support a finding that the confession was voluntary, defendant's argument to the contrary has no merit.

We reject defendant's suggestion that the officers' failure to comply with Welfare and Institutions Code sections 626 and 627 rendered his confession inadmissible.   There is no exclusionary rule relating to a violation of these provisions.  (People v. Lessie, supra, 47 Cal.4th at p. 1170.) 4  Moreover, we have determined that the confession was voluntary, and the failure to comply with the requirements of the statute does not invalidate a voluntary confession.  (See id. at pp. 1169-1170.)

C. The Miranda Waiver was Knowing and Voluntary

Defendant contends that the confession, even if otherwise voluntary, should have been excluded because the prosecution failed to prove that he understood his advisement of rights or that his Miranda waiver was voluntary.

We look to “the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel.”   (Fare, supra, 442 U.S. at p. 725, citing Miranda, supra, 384 U.S. at pp. 475-477;  Lessie, supra, 47 Cal.4th at p. 1165.)

Defendant argues that any evidence of his understanding should be discounted, because the prosecution did not prove that he “either actually understood [his rights] or by reason of prior training or experience could be expected to have understood them.”   We disagree.   Substantial evidence that defendant “actually understood” his rights came from his own testimony that he read and understood them.

Defendant asks that we surmise that he dropped out of school because he was failing, and that because he came from a broken home and belonged to a gang, his comprehension skills were well below those of a normal ninth grader.   Our task, however, is not to speculate but to draw reasonable inferences in favor of the trial court's ruling, so long as the record supports them.  (See Zamudio, supra, 43 Cal.4th at p. 342.)

We have already determined that the circumstances surrounding the interrogation did not suggest coercion, and that the defendant was close to adulthood, had completed part of the ninth grade, and was reasonably articulate.   Defendant testified that although he paid little attention to the Miranda warnings, he read, understood, and signed the statement that he understood each of the rights, initialing each of them.   The testimony believed by the trial court was that defendant did not ask for his mother, an attorney, or any other adult.   We infer that this was a reasoned choice, not a lack of understanding, as demonstrated by defendant's own testimony that he did not want to cause his mother to have to call a lawyer.   We conclude that substantial evidence supports a finding that defendant understood his rights, and the totality of the circumstances supports the trial court's conclusion that defendant knowingly and voluntarily waived those rights prior to giving the statements entered into evidence.

As there was no error, we need not reach defendant's prejudice argument.   We agree with respondent, however, that under the test of Chapman v. California (1967) 386 U.S. 18, 24 any error would have been harmless.   There was overwhelming independent evidence of defendant's identity as the shooter, his personal motive, and his gang's motive.   Victim McKie positively and quickly identified defendant's photograph as depicting the shooter, and also identified him in court.   A police officer had seen defendant earlier on the day of the shooting wearing clothing identical to those described by McKie.   Just two months before the shooting, defendant had been shot by African-Americans, and vowed to “cap those mayates.”  (Italics added.)   As a member of the MCS gang, he expressed dislike of all African-Americans, resented their presence in his territory, and was likely to target the victims for that reason alone.

Error is harmless under the Chapman test if “it [is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.”  (Neder v. United States (1999) 527 U.S. 1, 18.)   We conclude that a rational jury would have found defendant guilty in this case absent the alleged error.

II. Sentencing Issues5

A. The Sentence

As to count 1, the court imposed 15 years to life, pursuant to section 186.22, subdivision (b)(5), plus an enhancement of 20 years for the personal use of a firearm, pursuant to section 12022.53, subdivision (c).  The court imposed the same sentence, 35 years to life, as to each of counts 2 and 3, running the count 2 sentence consecutively to count 1 and the count 3 sentence concurrently with count 1. As to count 4, the trial court imposed a concurrent middle term of five years, plus a 10-year enhancement as hereinafter described, and one-third that term for each of counts 5 and 6, to run concurrently.   The court imposed the middle term of three years as to each of counts 7, 8, and 9. Although the trial court's oral pronouncement did not include a stay of the sentence imposed for counts 7, 8, and 9, the minutes and abstract of judgment reflect such a stay.

B. Section 654 Stay

Defendant contends, and respondent agrees, that counts 4, 5, 6, 7, 8, and 9 should have been stayed pursuant to section 654, which prohibits punishment for multiple crimes arising from a single, indivisible course of conduct.  (See People v. Latimer (1993) 5 Cal.4th 1203, 1208.)

A course of criminal conduct is indivisible where all the offenses are incident to one objective.  (Neal v. State of California (1960) 55 Cal.2d 11, 18.)  “A concurrent sentence simply does not satisfy the prohibition against double punishment.  [Citations.]  Where a trial court erroneously fails to stay terms subject to section 654, the appellate court must stay sentence on the lesser offenses while permitting execution of the greater offense consistent with the intent of the sentencing court.  [Citation.]”  (People v. Pena (1992) 7 Cal.App.4th 1294, 1312.)

Respondent agrees that counts 4, 5, and 6, shooting at each victim from a motor vehicle, and counts 7, 8, and 9, assault upon each victim with a firearm, were part of an indivisible course of conduct, with the same intent and objective as the attempted murder of each victim, and thus all must be stayed pursuant to section 654.  (Cf. People v. Sok (2010) 181 Cal.App.4th 88, 100.)   We agree and modify the judgment to stay all such counts.  (See People v. Alford (2010) 180 Cal.App.4th 1463, 1473.)

C. Gang Enhancement must be Reduced

Defendant and respondent both contend that the trial court erroneously sentenced defendant to life in prison, plus a 15-year gang enhancement for each attempted murder (counts 1-3).   They argue that the court should have sentenced defendant to life with a minimum parole eligibility of 15 years, as the penalty for the gang-related crime as required by section 186.22, subdivision (b)(5), rather than adding an enhancement to the indeterminate life term.  (See People v. Lopez (2005) 34 Cal.4th 1002, 1004.)

The abstract of judgment erroneously reflected a 15-year sentence enhancement, rather than the required penalty of life, with a 15-year minimum parole eligibility, and omitted the 20-year firearm enhancement from count 3 (although the 20 years were reflected in the total).

Thus, the abstract of judgment must be amended to reflect that on counts 1, 2, and 3, defendant was sentenced to life, plus the 20-year weapon enhancement as to each count, pursuant to section 12022.53, subdivision (c), with a notation that defendant was sentenced pursuant to section 186.22, subdivision (b)(5), and has a 15-year minimum parole eligibility as to each consecutive life term.

D. The Sentence Imposed on Counts 4, 5, and 6 must be Modified

Defendant contends that the trial court imposed an unauthorized enhancement as to counts 4, 5, and 6. Those counts alleged, as to each victim, that defendant discharged a firearm from a motor vehicle in violation of section 12034.   The jury found true the allegation that each crime was committed for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members.   The jury also found true the allegation that in the commission of the crime, defendant personally used the firearm, within the meaning of section 12022.53, subdivision (b), as well as the allegation that he intentionally and personally discharged the firearm, within the meaning of section 12022.53, subdivision (c).

Although it was alleged, the jury did not find that defendant's personal and intentional discharge caused great bodily injury to any of the victims, pursuant to section 12022.53, subdivision (d).

The trial court orally imposed the middle term of five years as to count 4, and added 10 years pursuant to section 12022.53, subdivision (c), for a total of 15 years, to run concurrently with count 1. As to counts 5 and 6, the court imposed one-third the same sentence, to run concurrently.   Thus, the terms were one year eight months, plus three years four months, for a total of five years as to each of count 5 and 6. The trial court made no mention of the gang finding.

The minutes and the abstract of judgment do not reflect the orally pronounced sentence.   Both documents state that the court imposed the middle term of five years as to count 4, and added 10 years pursuant to section 186.22, subdivision (b)(1)(c), for a total of 15 years, to run concurrently with count 1. The minutes and the abstract of judgment state that the identical sentence was imposed as to counts 5 and 6. Neither the reporter's transcript nor the minutes indicate that the trial court ordered the correction of the judgment.

The judgment is the oral pronouncement, which cannot be modified by the minutes or abstract of judgment.  (People v. Mesa (1975) 14 Cal.3d 466, 471.)   When there is a discrepancy, the oral pronouncement controls.   (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)

Defendant points out that the oral pronouncement cannot control in this case, because no enhancement was authorized under section 12022.53, subdivision (b) or (c).  Subdivision (b) provides for a 10-year enhancement for “any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm”;  and subdivision (c) provides a 20-year enhancement for “any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm.”   A violation of section 12034, subdivision (c) is not specified in subdivision (a) of section 12022.53.   Section 12034 is brought within the purview of section 12022.53, only when the crime results in death or great bodily injury, a finding not made by the jury in this case. (§ 12022.53, subd. (d).)

Respondent argues that it is apparent from the minutes and the abstract of judgment that the trial court intended to impose the 10-year gang enhancement of section 186.22, subdivision (c)(1)(B), and suggests that we amend the judgment to conform with the court's intention.   Defendant, however, points out that only a violent felony, as defined in section 667.5, justifies the 10-year enhancement under section 186.22, and a violation of section 12034 is not so defined.6  Shooting from a motor vehicle is a serious felony, however, as defined by section 1192.7, subdivision (c)(23), and is thus subject to the five-year gang enhancement of section 186.22, subdivision (b)(1)(B).  Defendant asks that we reduce the gang enhancement accordingly.

We agree with respondent that the record shows that the trial court's undoubted intention was to impose the gang enhancement, and would so modify the judgment if the matter were remanded for resentencing.   For that reason, and because defendant asks for a modification, remand is unnecessary.  (See People v. Alford, supra, 180 Cal.App.4th at p. 1473;  § 1260.)   We shall modify the judgment by striking the 10-year enhancement imposed as to counts 4, 5, and 6, pursuant to section 12022.53, subdivision (c), and imposing the five-year sentence enhancement under section 186.22, subdivision (b)(1)(B).  As both parties point out, the reduction of the sentences as to counts 5 and 6 to one-third the sentence of count 4, was also unauthorized, as they were concurrent and should have been stayed.  (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164;  § 1170.1, subd. (a).)  We shall modify the judgment accordingly.   (See Cantrell, supra, at p. 1165.)

DISPOSITION

The judgment is modified as follows:  the term imposed as to counts 4 and 5 is stricken, and the five-year middle term provided by section 12034, subdivision (c) is imposed;  the 10-year enhancement imposed as to each of counts 4, 5, and 6, is stricken, and a five-year enhancement is imposed as to each such count, pursuant to section 186.22, subdivision (b)(1)(B);  and the sentences so imposed as to counts 4, 5, 6, 7, 8, and 9 are stayed pursuant to section 654.   The 15-year-to-life terms as to counts 1, 2, and 3 are stricken, and an indeterminate life term is imposed with a minimum parole eligibility period of 15 years as to each such count, plus the 20-year weapon enhancement as to each count, pursuant to section 12022.53, subdivision (c).  Counts 1 and 2 remain consecutive, and count 3 remains concurrent.   The trial court is directed to prepare a new abstract of judgment reflecting the modified judgment, including a notation that defendant was sentenced on counts 1, 2, and 3, pursuant to section 186.22, subdivision (b)(5), and to forward the new abstract to the Department of Corrections and Rehabilitation.   As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

CHAVEZ

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code, unless otherwise indicated..  FN1. All further statutory references are to the Penal Code, unless otherwise indicated.

FN2. “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”  (Miranda, supra, 384 U.S. at p. 444.)   Unless the defendant is adequately and effectively apprised of these rights, the prosecution may not use any statement made during interrogation against him.  (Ibid.).  FN2. “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”  (Miranda, supra, 384 U.S. at p. 444.)   Unless the defendant is adequately and effectively apprised of these rights, the prosecution may not use any statement made during interrogation against him.  (Ibid.)

FN3. Welfare and Institutions Code sections 626 and 627 require that any minor taken into temporary custody, if not released, should be delivered to the probation officer “without unnecessary delay,” and that the officer who delivers the minor to a place of confinement must notify the minor's parent or guardian and advise the minor of his right to make two completed telephone calls..  FN3. Welfare and Institutions Code sections 626 and 627 require that any minor taken into temporary custody, if not released, should be delivered to the probation officer “without unnecessary delay,” and that the officer who delivers the minor to a place of confinement must notify the minor's parent or guardian and advise the minor of his right to make two completed telephone calls.

FN4. Defendant acknowledges that violation of the statute is not subject to a rule of exclusion, but contends that the failure to advise him of his right to make telephone calls or to grant his repeated requests to call his mother, demonstrates the “officers' readiness to exact a confession at any cost.”   Again he argues, in effect, that his own testimony must be believed over the officers' conflicting testimony..  FN4. Defendant acknowledges that violation of the statute is not subject to a rule of exclusion, but contends that the failure to advise him of his right to make telephone calls or to grant his repeated requests to call his mother, demonstrates the “officers' readiness to exact a confession at any cost.”   Again he argues, in effect, that his own testimony must be believed over the officers' conflicting testimony.

FN5. There have been recent amendments to the sentencing statutes.  (See Stats.2009, ch. 171;  Stats.2010, ch. 256.)   The statutes cited in the remainder of this opinion are those in effect at the time of defendant's sentencing in 2009..  FN5. There have been recent amendments to the sentencing statutes.  (See Stats.2009, ch. 171;  Stats.2010, ch. 256.)   The statutes cited in the remainder of this opinion are those in effect at the time of defendant's sentencing in 2009.

FN6. Respondent counters that any violation of section 12022.53 is a violent felony under section 667.5, subdivision (c)(22).   However, as defendant has shown, shooting from a motor vehicle is not within the purview of section 12022.53, unless there was great bodily injury or death..  FN6. Respondent counters that any violation of section 12022.53 is a violent felony under section 667.5, subdivision (c)(22).   However, as defendant has shown, shooting from a motor vehicle is not within the purview of section 12022.53, unless there was great bodily injury or death.

_, P.J. _, j. BOREN ASHMANN-GERST