PEOPLE v. MARQUEZ

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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Sergio Arturo MARQUEZ, Defendant and Appellant.

No. B044019.

Decided: January 10, 1991

Rodger Paul Curnow, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Donald E. De Nicola, Supervising Deputy Atty. Gen. and Carol Frederick Jorstad, Deputy Atty. Gen., for plaintiff and respondent.

Alvaro “Cookie” Valesquez and Anthony Martinez, members of the Sotel youth gang, were victims of a drive-by shooting. Alvaro died and Anthony was seriously wounded. Sergio Arturo Marquez, a member of the rival Santa Monica youth gang, was charged with one count of murder, one count of attempted murder, and special allegations of personal use of a firearm and shooting a firearm from a motor vehicle. Marquez was convicted of second degree murder (Alvaro) and attempted murder (Anthony) and the jury found both special allegations to be true. We modify Marquez' sentence and, as modified, affirm the judgment.

FACTS

On the evening of March 25, 1988, Anthony Martinez drove to Stoner Park with his girlfriend, Lisa Melnick, to pick up Jesse Sandoval. Anthony, Jesse and Alvaro Valesquez (a friend of Jesse's) walked into the park and stood around talking for about ten to twenty minutes.1 Lisa remained in the car.

Anthony, Jesse and Alvaro then walked back towards Anthony's car. As they walked, a light blue, mid-sized sedan drove by, going in the opposite direction. When they reached Anthony's car, Lisa was seated in the front passenger seat. Anthony walked around the back of the car, opened the driver's door, and stood there. Alvaro walked around the front of the car, stopping so that he and Anthony were facing each other, with the driver's door open between them. Jesse was standing behind the car.

The light blue sedan made a U-turn, came back up the street towards Anthony's car, pulled up along side it and stopped just in front of it. Anthony turned and saw a face in the passenger window, saw that the passenger was looking over his shoulder, and heard the passenger yell “Santa Monica.” Anthony heard gunshots and got “a glance” at the shooter, seeing his entire face. Anthony then saw a flash of red, felt a sharp pain in his stomach, and fell to the ground. Jesse also saw the blue sedan approach. He saw the passenger, heard the passenger yell “Santa Monica” and saw “something shiny” protruding from the passenger side of the sedan. Jesse “went to the ground,” remaining face down as the sedan drove away.

Alvaro was shot and died immediately. Anthony was shot in the stomach but was conscious. Jesse got up, saw that Alvaro was dead and Anthony alive, and drove Anthony to the hospital. Anthony underwent surgery and remained hospitalized for about two and one-half weeks.

The police took Jesse from the hospital to the police station, where Jesse described the shooter and told the police he had never seen him.2 On March 30 (five days after the shooting) Detective Michael Berchem met with Jesse and showed him 12 photographs. Jesse identified a photograph of Marquez as the shooter, stating “that looks most like the guy that did it.”

Detective Berchem visited Anthony at the hospital the same day, March 30. After Anthony described the shooter, he was shown the same photographs shown to Jesse and he identified the photo of Marquez as the person who shot him, telling Detective Berchem that he had recognized Marquez at the time he was shot.

Marquez was arrested and charged. At trial, Marquez stipulated that he was a Santa Monica member and that he “did not like” Sotel members. Detective Berchem, a member of the West Bureau CRASH Unit familiar with both Sotel and Santa Monica, described each gang's territory, manner of dress, hand signs, other identifying marks and style of graffiti, and expressed his opinion that, in short, the gangs hated each other. Anthony and Jesse both identified Marquez as the shooter.

Jesse also described two earlier confrontations between the Santa Monica and Sotel gangs at Stoner Park. First, Jesse testified that in January 1988 he witnessed a fight between Santa Monica and Sotel gang members. Second, Jesse testified that in mid-1987 he saw Santa Monica gang members drive by in a van, shout out “Santa Monica,” and shoot at Sotel gang members. There was no evidence linking Marquez to either of the prior incidents nor any suggestion that Marquez was in any way involved.

Marquez was convicted and this appeal followed.

DISCUSSION

I.

Marquez contends we must reverse the judgment and dismiss the case because there was no substantial evidence of his guilt. More specifically, he claims the identification evidence was so “fraught with uncertainty” as to preclude a confident determination of guilt beyond a reasonable doubt. We disagree.

The identification testimony constitutes substantial evidence supporting the verdict. Although Jesse at first said he did not recognize the shooter, he later identified Marquez' photograph and he identified Marquez at trial. Anthony identified Marquez' photograph and also identified him at trial. “‘Although an appellate court will not uphold a ․ verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category․ To warrant the rejection of the statements given by a witness who has been believed by the [jury], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions․ Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends․”’ (People v. Barnes (1986) 42 Cal.3d 284, 306, 228 Cal.Rptr. 228, 721 P.2d 110, quoting People v. Thornton (1974) 11 Cal.3d 738, 754, 114 Cal.Rptr. 467, 523 P.2d 267.)

Nothing about Anthony's or Jesse's testimony suggests a “physical impossibility” that the identifications are accurate nor is any falsity apparent without resort to inferences or deductions. It follows that there was substantial evidence to support the verdict. (People v. Provencio (1989) 210 Cal.App.3d 290, 306, 258 Cal.Rptr. 330.)

II.

Marquez next contends it was reversible error to admit Jesse's testimony of the two prior confrontations between Sotel and Santa Monica. We disagree.

When Jesse took the stand, he testified that he knew about the Santa Monica gang, that they sometimes came into the area where he lived and that, when they did, there were “fights, shootings, whatever.” Over Marquez' objection, the trial court permitted the prosecutor to ask Jesse about two specific incidents of gang violence not involving Marquez “on the issue of hostility between the two gangs to show motivation for the shooting that occurred” and also to show Jesse's state of mind.3 The trial court explained its ruling thus:

“It seems to me ․ the court's ruling takes into consideration the times that we live in, in which now gang activity has come to such a point where the old rules of 1101(b), et cetera, which dealt with the limiting of such testimony to the individual charged in these instances have to be expanded to concern hostility between two groups, it seems to me, because it is in truth and in fact a possibility that hostility between two rival gangs could lead to acts of violence that are motivated by this hostility. It is certainly an appropriate piece of evidence to present to the jury in my estimation.”4

Jesse then testified about the two prior incidents at Stoner Park, the fight and the drive-by shooting from the van. As we now explain, although the trial court's reliance on section 1101, subdivision (b), was misplaced, the analysis and the result were correct and we therefore reject the claims of error. (People v. Evans (1967) 249 Cal.App.2d 254, 257, 57 Cal.Rptr. 276.)

Evidence of gang membership and criminal activities by gang members other than the defendant differs from the “criminal propensity” character evidence excluded by subdivision (a) of section 1101 and admitted only when it comes within one or more of the exceptions of subdivision (b) of the same statute. (People v. Dominguez (1981) 121 Cal.App.3d 481, 498, fn. 20, 175 Cal.Rptr. 445.) Section 1101 refers to a person's character, not a group's characteristic or custom, and the statute must be read according to its plain meaning. (Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155, 137 Cal.Rptr. 154, 561 P.2d 244.)

The correct analysis begins not with a statute intended to exclude evidence for policy reasons (§ 1101)5 but rather with the legislative mandate that, unless excluded by another statute, all relevant evidence is admissible unless the trial court, in its discretion, finds that its “probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352; see also § 351.)

Jesse's testimony about the prior Santa Monica/Sotel confrontations was relevant to show motive. (People v. Dominguez, supra, 121 Cal.App.3d 481, 498, 175 Cal.Rptr. 445; People v. Frausto (1982) 135 Cal.App.3d 129, 140, 185 Cal.Rptr. 314.) The question, therefore, is whether its admission created a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury, compelling the conclusion that its probative value was outweighed by its prejudicial effect. We think not.6

Evidence of gang membership (the threshhold fact in our case) is admissible to prove motive (People v. Burns (1987) 196 Cal.App.3d 1440, 1455-1456, 242 Cal.Rptr. 573), threats to prosecution witnesses (People v. Harris (1985) 175 Cal.App.3d 944, 957, 221 Cal.Rptr. 321), and identity (People v. Beyea (1974) 38 Cal.App.3d 176, 194, 113 Cal.Rptr. 254), notwithstanding its prejudicial effect. Stated otherwise, it is error to admit evidence of gang membership only when that evidence has little or no relevance to any issue in the trial. (See, e.g., People v. Cardenas (1982) 31 Cal.3d 897, 904-905, 184 Cal.Rptr. 165, 647 P.2d 569; In re Wing Y. (1977) 67 Cal.App.3d 69, 76-79, 136 Cal.Rptr. 390; People v. Perez (1981) 114 Cal.App.3d 470, 477, 170 Cal.Rptr. 619.)

The mere fact of membership is clearly prejudicial--it creates a real danger of improper inferences that the defendant on trial is guilty because he is a member of a youth gang. (See People v. Cardenas, supra, 31 Cal.3d at p. 905, 184 Cal.Rptr. 165, 647 P.2d 569; People v. Perez, supra, 114 Cal.App.3d at p. 479, 170 Cal.Rptr. 619.) Evidence establishing gang membership is, as we have explained, nevertheless admissible when it has a tendency in reason to prove a disputed fact. It follows ineluctably that where, as here, membership is relevant to prove motive, evidence explaining the incidents of membership is also relevant. Two courts have reached this conclusion on similar facts.

In People v. Dominguez, supra, 121 Cal.App.3d 481, 175 Cal.Rptr. 445, a murder case, the trial court admitted testimony by Marina Cobos, a former member of Nuestra Familia (the defendant's gang) that “she carried orders to subordinate gang members to get involved with ‘hits, prostitutions, drugs, anything that would bring in some money to the organization.’ She also carried information to superiors about ‘how many brothers we have in a regiment and how many robberies they did, how much money we had in the banks.”’ (Id. at pp. 497-498, 175 Cal.Rptr. 445.) On appeal from his conviction, the defendant conceded that some evidence of “the gang's tenets” was admissible to show intent and motive but asserted that “‘motive could have been established without reference to the gang's other, non-related, criminal endeavors.”’ (Id. at p. 498, 175 Cal.Rptr. 445.)

“Not so,” said the Fifth District. “In our opinion, this argument fails to demonstrate how motive could have been proved without showing that the Nuestra Familia engaged in criminal and violent acts and that members were obligated to commit such acts under penalty of their own lives. Since this evidence on motive logically and naturally aided the People in rebutting the presumption of innocence and showing a reason for [the defendant's] criminal behavior, it cannot be said the trial judge erred in concluding that its probative value exceeded its prejudicial effect. [Citations.]” (Id. at pp. 498-499, 175 Cal.Rptr. 445.)7

In People v. Frausto, supra, 135 Cal.App.3d 129, 185 Cal.Rptr. 314, two defendants were convicted of assault with a deadly weapon. On appeal, one defendant urged “that the trial court abused its discretion in permitting repeated references to gangs and gang-related activity, and furthermore erred in admitting into evidence references to gangs and gang-related conduct.” (Id. at p. 140, 185 Cal.Rptr. 314.) Division Four of our District disagreed, finding the evidence was relevant to motive and observing that the evidence “in no way harmed [defendants], because it showed the victim as being a gang member․” (Id. at pp. 140, 142, 185 Cal.Rptr. 314.)8

Marquez' contention fails for the same reasons. Jesse's testimony about the two earlier confrontations between Sotel and Santa Monica was relevant to prove Marquez' motive. The prejudicial effect of Jesse's testimony was not, in our opinion, any greater than the naked fact of membership--to which Marquez stipulated. The reason for excluding evidence of gang membership in cases where it is irrelevant is to prevent the natural inference that youth gangs and their members all engage in criminal activities (People v. Cardenas, supra, 31 Cal.3d 897, 905, 184 Cal.Rptr. 165, 647 P.2d 569) and a reference to actual criminal conduct in a case where membership is relevant does not increase the prejudicial effect of the evidence.9 This is particularly true here because, as the court observed in People v. Frausto, supra, 135 Cal.App.3d at page 142, 185 Cal.Rptr. 314, the evidence might well have helped Marquez--Jesse's testimony was equally effective in implicating one of the victims, Alvaro, in the illegal prior confrontations between the two gangs. And although Jesse was not a gang member, his presence at the two prior events and the shootings at issue here ties him to Sotel, tainting his testimony against Marquez.

Hence, the trial court's analysis, although based on the wrong statute, was correct. Since we are not required to elevate form over substance (People v. Evans, supra, 249 Cal.App.2d at p. 257, 57 Cal.Rptr. 276), we find no error.10

III.

Marquez next contends it was prejudicial error to permit Detective Berchem to testify as an expert on Sotel and Santa Monica, claiming the testimony was cumulative to Jesse's testimony, relevant only to collateral issues, and that the subject matter was not beyond the common experience of jurors. We disagree.

In addition to testifying as a percipient witness, Detective Berchem described the general boundaries of the two gangs, their clothing preferences (styles, colors, accessories), their hand signs, and the fact that they cover every available surface with graffiti. He also testified that Sotel and Santa Monica members hated each other. We are satisfied that Detective Berchem qualified as an expert on gang activities, that his testimony was relevant to prove motive, that his detailed descriptions were not cumulative of Jesse's testimony, and that gang activity is a proper subject for expert testimony. (People v. McDaniels (1980) 107 Cal.App.3d 898, 904-905, 166 Cal.Rptr. 12.)

IV.

Marquez next claims it was error to admit a ruler found at his home at the time of his arrest because the meaning of certain words written on the ruler-- “No mas No mas No mas Alfredo Santa Monica 13”--was ambiguous. At trial, both attorneys construed the words to refer to the Sugar Ray Leonard/Roberto Duran fight in which Duran quit fighting in the middle of the match, retreated to his corner, refused to fight any more, and said “no mas,” meaning “no more, I quit.” On appeal, Marquez now claims the words mean “No more Alvaro,”11 signed by “Santa Monica,” and could be construed as an admission that he killed Alvaro. We disagree.

Marquez' trial objection was nonspecific and he remains unable to articulate a reason for excluding the ruler. Although the ruler was not particularly relevant since the interpretation Marquez now asserts was not argued at trial, the ruler could not have been prejudicial because the only reference to it during closing arguments was by Marquez' attorney, to show that the search warrant had yielded nothing of significance. There was no error in this regard.

V.

Marquez' final claims of error attack his sentence--the upper term of nine years for count 2 (attempted murder), plus a five-year enhancement under Penal Code section 12022.55,12 plus a two-year personal use enhancement (which was stayed), plus a consecutive sentence of 15 years to life for count 1 (second degree murder), plus another five-year enhancement under section 12022.55, plus another two-year personal use enhancement (which was also stayed), for an aggregate term of 34 years to life. We consider each contention separately.

A.

Marquez first contends the trial court abused its discretion in selecting the upper term for count 2, claiming that insufficient and inaccurate aggravating factors were cited and that applicable mitigating factors were not considered. We disagree.

Although selection of the upper term requires a statement of reasons (People v. Jackson (1987) 196 Cal.App.3d 380, 387-388, 242 Cal.Rptr. 1), a single factor in aggravation is sufficient (People v. Castellano (1983) 140 Cal.App.3d 608, 615, 189 Cal.Rptr. 692) and a simple statement by the trial court, without citation to rules or evidence, will suffice (People v. Huber (1986) 181 Cal.App.3d 601, 628, 227 Cal.Rptr. 113). Accordingly, the trial court's statement that this was “a planned activity, premeditated, obviously, cold-blooded- type of offense” was sufficient, notwithstanding the jury's finding that Marquez did not act with premeditation. (Rule 421(a)(8); People v. Levitt (1984) 156 Cal.App.3d 500, 515, 203 Cal.Rptr. 276 [the trial judge is not bound by the jury's finding because its sentencing determination is subject to a lesser standard of proof].)

And although the trial court incorrectly stated that there were no mitigating factors, the failure to consider the one such factor--an insignificant record of prior criminal conduct--was not prejudicial error. The aggravating factors so far out-weighed the sole mitigating factor that it is not reasonably probable that the trial court would have imposed a different sentence had it considered Marquez' prior record. (People v. Moreno (1982) 128 Cal.App.3d 103, 110, 179 Cal.Rptr. 879.)

B.

Marquez next contends that remand is necessary because the trial court failed to state its reasons for imposing consecutive sentences. We disagree.

Although the trial court must state its reasons for imposing consecutive rather than concurrent sentences (§§ 669, 1170, subd. (c); rule 443), one reason is sufficient (People v. Bravot (1986) 183 Cal.App.3d 93, 98, 227 Cal.Rptr. 810) and the same reason may be used to support all consecutive sentences imposed in a single case (People v. Huber, supra, 181 Cal.App.3d at p. 628, 227 Cal.Rptr. 113). Consecutive sentences are appropriate where, as here, the crimes involved multiple victims and separate acts of violence (rules 425(a)(2), 425(a)(4)). The trial judge stated as a reason for imposing consecutive sentences the fact that the crimes involved “separate victims.” No more was required.

C.

[11] Marquez claims the trial court erred in imposing two separate enhancements for each count, one (two years) for his personal use of a firearm (§ 12022.5) and another (five years) because this was a drive-by shooting (§ 12022.55). We agree in part.

Section 12022.5 authorizes an enhancement of up to five years when the defendant has personally used a firearm in the commission or attempted commission of a felony. Section 12022.55 provides, as pertinent, that “[n]otwithstanding Section 12022.5, any person who, with the intent to inflict great bodily injury or death, inflicts great bodily injury, ․ or causes the death of a person, other than an occupant of a motor vehicle, as a result of discharging a firearm from a motor vehicle ․ shall, upon conviction of the felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony ․ be punished by an additional term of imprisonment in the state prison for five years.”

In re Culbreth (1976) 17 Cal.3d 330, 333-334, 130 Cal.Rptr. 719, 551 P.2d 23, prohibits imposition of two or more enhancements under section 12022.5 for multiple uses of a gun on a “single occasion” but does not consider whether two separate and distinct but equally applicable enhancements may be imposed for two or more crimes committed on a single occasion, one enhancement to one crime and the other to a different crime. Moreover, Culbreth predates enactment of section 12022.55 and later amendments to section 1170.1.13 The questions, therefore, are whether Marquez' sentence can be increased by both enhancements as to both counts or, if not, whether one enhancement may be applied to one count involving one victim and the other enhancement to the other count involving a different victim.

We begin our analysis by emphasizing the first phrase of section 12022.55: “Notwithstanding Section 12022.5,” the punishment of a person convicted of a drive-by shooting of someone other than an occupant of a motor vehicle “shall” be enhanced by an additional five year term.14 The Legislative Counsel's Digest of Assembly Bill No. 766 (which added section 12022.55) explains that the Legislature meant what it said: “Existing law requires an additional term of imprisonment in the state prison for 2 years upon the conviction of a person for personally using a firearm in the commission or attempted commission of a felony. [¶] This bill would, notwithstanding the above, impose an additional term of imprisonment in the state prison for 5 years․” (Legis. Counsel's Dig., Assem. Bill No. 766 (1987-1988 Reg. Sess.); emphasis added.)

Then, as now, subdivision (e) of former section 1170.1 provided that when two or more of several specified enhancements might be imposed for a single offense, only the greatest enhancement could in fact be imposed (subject to certain exceptions which do not apply to this case). To state the obvious, former section 1170.1 did not refer to section 12022.55 and although section 1170.1 was amended in 1987 after section 12022.55 was adopted, the amendment had nothing at all to do with section 12022.55. (Stats.1987, ch. 1423.)

It would seem to follow that, at least in 1987, the Legislature intended that the enhancements of both section 12022.5 (for personal use) and section 12022.55 (for a drive-by shooting of someone other than the occupant of another car) could be imposed for a single offense. No statutory prohibition (in section 1170.1 or elsewhere) precluded application of both enhancements and the language and legislative history of section 12022.55 demonstrate a legislative intent to permit enhancements for multiple uses of a gun in a single drive-by shooting, thus avoiding the Culbreth paradox. (People v. Raby (1986) 179 Cal.App.3d 577, 585, fn. 2, 224 Cal.Rptr. 576.)15

Inexplicably, section 1170.1 was amended in 1988 (only three months after the effective date of section 12022.55) to preclude imposition of both enhancements. As amended, subdivision (e) of section 1170.1 now commands that when two or more enhancements under section 12022.5 and 12022.55 (among others) may be imposed for any single offense, only the greatest enhancement shall apply (except in situations which are not relevant to the facts of this case). (Stats.1988, ch. 1484, § 3; Stats.1988, ch. 1487, § 2.)

Examination of the legislative history of the 1988 amendments to section 1170.1 confuses rather than clarifies the issue. The Legislature apparently intended (although we don't know why) to preclude imposition of two enhancements when one was for personal use of a firearm (§ 12022.5, subd. (a)) and the other for a freeway shooting at an occupied car (§ 12022.5, subd. (b)). (Legis. Counsel's Dig., Assem. Bill No. 2760 (1987-1988 Reg.Sess.) at para. 7.) It is altogether unclear, however, whether the same limitation on drive-by shootings (§ 12022.55) was intended or inadvertent. Because we are bound to follow the plain language of the statute notwithstanding our belief that the result is anomalous, we avoid the temptation to read between the lines of legislative history in search of invisible guideposts leading to the result we would prefer to reach.16

It follows necessarily that, under the circumstances of this case, the limitation of subdivision (e) of section 1170.1 to one enhancement for a “single offense” means the trial court erred when it enhanced Marquez' sentences on both counts 1 and 2 by two years under section 12022.5 and by five years under section 12022.55, for a total of 14 years.

It does not follow, however, that there can be only one enhancement for two counts (a maximum of five years). We find nothing in section 1170.1 or in Culbreth or its progeny to preclude imposition of one enhancement on one count and another enhancement authorized by a different statute on a different count involving a different victim. Stated otherwise, we see no reason to burden the words “single offense” as used in section 1170.1 with a limitation not expressed by the Legislature nor do we see any reason to extend case law to further limit the sentence of a convicted drive-by murderer who also seriously wounded a second victim.17 We have carefully reviewed Culbreth and over 50 cases considering whether to follow it, distinguish it, ignore it, or criticize it and, other than the “single offense” language in subdivision (e) of section 1170.1, we are unable to find any suggestion that two separate and distinct statutory enhancements cannot be applied in a multiple victim case, one to each victim.18

We therefore hold that, in the absence of a statutory prohibition, a defendant who in the course of a drive-by shooting discharges a firearm from a motor vehicle with the intent to inflict great bodily injury or death, and in fact causes the great bodily injury or death of two persons who are not occupants of a motor vehicle, may have his sentence enhanced by section 12022.5 as to one victim and by section 12022.55 as to the other. (See People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552.)

Accordingly, there is no reason why the trial court could not have imposed the section 12022.55 enhancement to one count and the section 12022.5 enhancement to the other count. We therefore modify the judgment by striking the section 12022.5 enhancement as to count 2 and the section 12022.55 enhancement as to count 1, and lifting the stay imposed on the section 12022.5 enhancement as to count 1.

D.

Finally, Marquez claims the trial court erred in failing to apply the “one-third the base term” limit of section 1170.1. Although at trial the People (the District Attorney) agreed with Marquez and attempted to persuade the trial court not to do what it did, on this appeal the People (the Attorney General) contend the sentence is valid. We agree with Marquez.

The trial court determined that, as required by section 669, the determinate sentence for count 2 (attempted murder) had to be imposed first and the upper term (nine years) was imposed. The trial court then added five years for the section 12022.55 enhancement (for a total of 14 years) and then imposed but stayed the two-year enhancement under section 12022.5. Turning to count 1 (second degree murder), the trial court imposed a consecutive sentence of 15 years to life and added an additional enhancement of five years under section 12022.55 (for a total of 20 years) and then imposed but stayed the two-year enhancement under section 12022.5. The total sentence thus imposed was 34 years.

Only one-third of the enhancement sentence on count 1 should have been imposed. Subdivision (a) of section 1170.1 limits section 12022.5 and 12022.55 (and other) enhancements to subordinate terms for a consecutive offense which is a violent felony (including murder) to one-third of the prescribed term. We held above that the five-year enhancement should not have been imposed as to count 1 and we now hold that only one-third of the two year enhancement (eight months) should have been imposed as to count 1 and we modify the judgment to reflect this correction.

DISPOSITION

Marquez' sentence is modified by striking the section 12022.55 enhancement imposed as to count 1, by lifting the stay imposed on the section 12022.5 enhancement as to count 1, by striking the section 12022.5 enhancement imposed as to count 2, and by reducing to eight months the section 12022.5 enhancement imposed as to count 1. Thus, using count 2 as the principal term, Marquez is sentenced to the upper term of nine years, plus five years for the section 12022.55 enhancement; on count 1, he is sentenced to 15 years to life plus one-third of the section 12022.5 enhancement (eight months), for a total term of 29 years, 8 months to life. In all other respects, the judgment is affirmed.

FOOTNOTES

1.  Anthony is a member of the Sotel gang, as was Alvaro. Jesse does not belong to any gang.

2.  At trial, Jesse testified he had in fact seen the shooter before but told the police he had not because he “didn't want to get involved.” More specifically, Jesse testified that he had seen Marquez once at Venice High School and once at the Santa Monica Mall; that in January 1988, Marquez had confronted Jesse at the Santa Monica Mall but that Jesse and his friends (Sotel gang members) had refused to fight. Jesse also testified that on an earlier occasion, while he and Anthony were visiting their girlfriends at Venice High School, they both saw Marquez at the school.

3.  Neither the trial court nor the People have explained how this evidence showed Jesse's state of mind or why Jesse's state of mind mattered and we therefore ignore this statement as surplusage.

4.  The reference to “1101(b)” is to section 1101 of the Evidence Code, which provides that:“(a) Except as provided in this section and in Sections 1102 and 1103, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.“(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”All statutory references in this section are to the Evidence Code.

5.  Section 1101 excludes evidence of the defendant's other crimes, except as permitted by subdivision (b), to ensure that the accused is tried only for the offense charged, to guard against “the probability that evidence of other criminal acts having little bearing on the question whether [the] defendant actually committed the crime charged would assume undue proportions and unnecessarily prejudice [the] defendant in the minds of the jury.” (People v. Kelley (1967) 66 Cal.2d 232, 238-239, 57 Cal.Rptr. 363, 424 P.2d 947.)

6.  There is no possibility that Jesse's testimony necessitated an undue consumption of time. The testimony, as transcribed, consumes about three pages.

7.  In Dominguez, as here, jury instructions explained the limited purpose of evidence of gang membership. (People v. Dominguez, supra, 121 Cal.App.3d at pp. 500-501, 175 Cal.Rptr. 445.) In our case, the jury was instructed that:“There has been evidence presented that the defendant is a member of the Santa Monica gang. Evidence of membership may not be used to infer any specific conduct of a member on a specific occasion. [¶] Gang membership may not be used to infer that the defendant or any member of the gang has a predisposition to commit crime, that is, a member is more likely to commit a criminal act. [¶] However, gang membership was admitted in this case for the limited purpose of showing the possible motive, intent, identity or any other relevant mental state of the assailant or assailants in this case. [¶] You the jurors will give such evidence the weight that you determine it to be entitled to.”

8.  Although we agree with the Frausto court's analysis and its conclusions, we disagree with that court's reliance on People v. Manson (1976) 61 Cal.App.3d 102, 132 Cal.Rptr. 265 (People v. Frausto, supra, 135 Cal.App.3d at p. 141, 185 Cal.Rptr. 314). Manson held that evidence of criminal acts of other members of the group to which the defendant belonged was admissible because the defendant and the other members were specifically charged with conspiracy and the evidence tended to show the defendant's ability to induce homicidal conduct in others. (People v. Manson, supra, 61 Cal.App.3d at p. 131, 132 Cal.Rptr. 265.) No conspiracy was charged in Frausto. For the same reason, we disagree with the Frausto court's reliance on People v. Remiro (1979) 89 Cal.App.3d 809, 841-844, 153 Cal.Rptr. 89.) (People v. Frausto, supra, 135 Cal.App.3d at p. 140, 185 Cal.Rptr. 314.)

9.  Jurors bring to their deliberations knowledge and beliefs about general matters they have learned from their everyday lives and experiences; that they do so is both a strength and a weakness of the jury system. (People v. Marshall (1990) 50 Cal.3d 907, 950, 269 Cal.Rptr. 269, 790 P.2d 676.) At least in Los Angeles County, evidence that youth gangs engage in criminal activity could hardly come as a surprise to jurors. Monday morning body counts are provided by radio, television and the press. For example, on October 15, 1990, a headline on the first page of the Metro Section of the Los Angeles Times put it this way: “AT LEAST 17 DIE IN COUNTY IN A WEEKEND OF VIOLENCE.” Although only some and not all of the 17 deaths were gang related, the article reveals that an additional seven people were wounded in a “gang related drive-by shooting.” Even without Jesse's testimony, it is inconceivable that the jurors would have thought of Santa Monica or Sotel in terms of “Our Gang” comedies. (People v. Perez, supra, 114 Cal.App.3d at p. 479, 170 Cal.Rptr. 619.)

10.  Even if Jesse's testimony was erroneously admitted, we could not say that it constituted prejudicial error. As we have explained, the greatest prejudice comes from the evidence of membership, to which Marquez stipulated. Jesse's testimony concerning the other confrontations, if excluded, would not have made an acquittal reasonably probable. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

11.  Marquez says we must read “Alfredo” as “Alvaro” because they are phonetically similar, particularly in Spanish.

12.  All statutory references in Section V are to the Penal Code and all references to rules are to the California Rules of Court.

13.  As relevant, subdivision (d) of section 1170.1 provides that “[w]hen the court imposes a prison sentence for a felony ․ the court shall also impose the additional terms provided in Sections 667, 667.5, 667.8, 667.85, 12022, 12022.2, 12022.4, 12022.5, 12022.55, 12022.6, 12022.7, 12022.75, and 12022.9, ․ unless the additional punishment therefor is stricken pursuant to subdivision (h)․” (Emphasis added.)Subdivision (e) of section 1170.1 limits subdivision (d) as follows: “When two or more enhancements under Sections 12022, 12022.4, 12022.5, 12022.55, 12022.7, and 12022.9 may be imposed for any single offense, only the greatest enhancement shall apply; however, in cases of lewd or lascivious acts upon or with a child under the age of 14 years accomplished by means of force or fear, as described in Section 288, kidnapping as defined in Section 207, penetration of a genital or anal opening by a foreign object, as defined in Section 289, oral copulation, sodomy, robbery, rape or burglary, or attempted lewd or lascivious acts upon or with a child under the age of 14 years accomplished by means of force or fear, kidnapping, penetration of a genital or anal opening by a foreign object, oral copulation, sodomy, robbery, rape, murder, or burglary the court may impose both (1) one enhancement for weapons as provided in either Section 12022, 12022.4, or subdivision (a) of Section 12022.5 and (2) one enhancement for great bodily injury as provided in either Section 12022.7 or 12022.9.” (Emphasis added.)

14.  At approximately the same time the Legislature adopted Assembly Bill No. 766, it also adopted Senate Bill No. 117 (Stats.1987, ch. 1159, § 1) to amend section 12022.5 by adding a new subdivision (b). That amendment provided that, notwithstanding the personal use enhancement of subdivision (a), a person convicted of a felony in which a firearm was discharged at an occupied motor vehicle and caused death or great bodily injury would suffer a five year enhancement.Two independent problems were addressed by these bills. Assembly Bill No. 766 was intended to discourage drive-by gang related shootings. (Assem. Bill No. 766, 3d reading, June 25, 1987, 1 Assem. Final Hist. (1987-1988 Reg.Sess.) p. 571.) Senate Bill No. 117 was adopted to stop the “terrorism” of random freeway shootings. (Sen. Bill No. 117, 3d reading, Sept. 9, 1987, 1 Sen. Final Hist. (1987-1988 Reg.Sess.) p. 105.) Urgency clauses were adopted as to both bills. (Stats.1987, ch. 1147, § 5; Stats.1987, ch. 1159, § 3.)

15.  The Culbreth paradox was apparent from the outset. As observed by the dissenting opinion in Culbreth, “a defendant committing two murders ․ on a ‘single occasion’ may be convicted and punished for both of them. [Citation.] So also may the punishment for each of the murders be enhanced under section 12022.5.” (In re Culbreth, supra, 17 Cal.3d at p. 336, 130 Cal.Rptr. 719, 551 P.2d 23 (conc. and dis. opn. of Clark, J.).) The majority disagreed. Although Mr. Culbreth had shot three people (his wife and two members of her family), each with the use of a firearm and with separate bullets, and although he was convicted of two second degree murders and one manslaughter, the Supreme Court allowed only one personal use enhancement to stand because the killings were “a single frenetic act of violence.” (Id. at pp. 332-335, 130 Cal.Rptr. 719, 551 P.2d 23; see also People v. Raby (1986) 179 Cal.App.3d 577, 584, 224 Cal.Rptr. 576.)In urging the Supreme Court to reexamine Culbreth, the court in Raby eloquently described the sophistry created by the “single occasion” rule: “An armed defendant convicted of robbing seven solitary attendants at seven gas stations on the same street in the same evening may receive seven consecutive sentences and seven consecutive gun use enhancements․ But the armed outlaw who robs a group of seven individuals at one gas station may receive seven consecutive robbery sentences and only one firearm use enhancement.” (People v. Raby, supra, 179 Cal.App.3d at p. 590, 224 Cal.Rptr. 576.)

16.  Although ours is not to question why, we do. We see in the 1987 legislation a clear and unequivocal legislative intent to permit imposition of both a personal use enhancement and a drive-by shooting enhancement when the facts fit the requirements of sections 12022.5 and 12022.55. We see a clear legislative intent to prevent the quixotic sentencing rules created by Culbreth--where a criminal is rewarded for shooting all of his victims at one location at the same time. (In re Culbreth, supra, 17 Cal.3d at pp. 333-334, 130 Cal.Rptr. 719, 551 P.2d 23; see also People v. Raby, supra, 179 Cal.App.3d at pp. 590-591, 224 Cal.Rptr. 576.) If this analysis is correct, we trust the Legislature will correct the problem.

17.  Culbreth is premised on the Supreme Court's belief that section 12022.5 was adopted to deter subsequent uses of firearms rather than to impose punishment commensurate with a body-count of victims. (In re Culbreth, supra, 17 Cal.3d at p. 333, 130 Cal.Rptr. 719, 551 P.2d 23; see also People v. Levitt (1984) 156 Cal.App.3d 500, 513, 203 Cal.Rptr. 276.) This was not the purpose of section 12022.55.

18.  See e.g., People v. Raby, supra, 179 Cal.App.3d at pp. 582-591, 224 Cal.Rptr. 576; People v. Green (1985) 166 Cal.App.3d 514, 518, 212 Cal.Rptr. 451; People v. Levitt (1984) 156 Cal.App.3d 500, 511-512, 203 Cal.Rptr. 276 [explaining in existential terms that, absent certain circumstances, “no temporal or mental lacuna exists to enable the deterrent purposes of section 12022.5 to prevent the defendant's subsequent gun use”]; People v. Wischemann (1979) 94 Cal.App.3d 162, 174, 156 Cal.Rptr. 386; People v. White (1981) 117 Cal.App.3d 270, 172 Cal.Rptr. 612 [two killings not part of a single objective because defendant had to reload and walk from one end of the building to the other in between killings]; People v. Clay (1984) 153 Cal.App.3d 433, 464, 200 Cal.Rptr. 269; People v. Williams (1982) 129 Cal.App.3d 994, 997, 181 Cal.Rptr. 462; People v. Blessing (1979) 94 Cal.App.3d 835, 840, 155 Cal.Rptr. 780.)

VOGEL, Associate Justice.

DEVICH, Acting P.J., and ORTEGA, J., concur.