THE PEOPLE v. ANGEL BENITEZ GARCIA (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Defendant Angel Benitez Garcia was convicted of assault with a firearm, discharge of a firearm with gross negligence, possession of a short-barreled rifle, possession of stolen property, and being an active participant in a criminal gang.   On appeal, Garcia contends that the trial court erred by (1) excluding certain testimony on relevance and hearsay grounds;  (2) instructing the jury on flight when there was no evidence of flight;  and (3) failing to stay the sentence for count 2 pursuant to Penal Code section 654.   He also argues that his counsel provided ineffective assistance by failing to object to evidence that Garcia committed an unrelated drug offense.   The People request remand to the trial court to clarify whether it intended to strike certain gang penalties and to correct the abstract of judgment.

We remand to the trial court to address the gang enhancements with respect to counts 2 through 4 and to correct the abstract of judgment to reflect a total sentence of 16 years and 144 days of credit.   We affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL HISTORIES

Shortly after 9:00 p.m. on February 1, 2009, in the town of Orosi, Ruben Lopez and his girlfriend Emily Reynoso were walking home when Reynoso saw two men point at them and begin to follow them from the other side of the street.   The men looked like rival gang members (Southerners), and Lopez associated with Northerners.

Reynoso told Lopez to run.   Lopez said he did not want to leave Reynoso—she was seven months pregnant—but she again urged him to run, and he did so without looking back.   The two men ran past Reynoso chasing Lopez.   Reynoso saw them pull out guns and shoot at Lopez.   Lopez heard about four gunshots and heard the bullets go by his head.   Lopez ran home, and the two men followed him but left after Lopez entered his house.   Reynoso, who had remained on the street, went into a pool hall and called 911.

Officers from the Tulare County Sheriff's Department responded and interviewed Reynoso and Lopez.   They described the assailants as two Hispanic men, one wearing a blue jersey with the number 13 and the other wearing a black and white checkered sweatshirt or coat.   Southerners wear the color blue and the number 13;  Northerners wear the color red and the number 14.   Both remembered that the man in the jersey was bigger and heavier than the one in the checkered coat.   An officer collected three cartridge casings in the area where the shooting occurred.   A neighbor found another cartridge casing the next day and turned it over to the sheriff's department.

On February 19, 2009, Tulare County Sheriff's Detectives Steve Sanchez III and Steve Sanchez, Jr., along with other officers, went to a trailer in east Orosi to arrest Garcia on a warrant for being under the influence of a controlled substance.   Garcia, who was homeless, sometimes stayed at the trailer, which belonged to Antoinette Hernandez.   Garcia was arrested and placed in a patrol car.

Hernandez consented to a search of the trailer.   Detectives found three firearms in a kitchen cabinet—a .380–caliber Bersa semiautomatic handgun, a .22–caliber rifle with a sawed-off barrel, and an inoperable revolver.   The .380–caliber handgun was later identified as stolen, and forensic testing showed that one of the casings found the night of the shooting was fired from it.   The markings on the other three casings were consistent with the .380–caliber handgun found in the trailer, but there was not enough detail to identify them definitively as having been fired from it.   Officers also found a checkered jacket matching Reynoso and Lopez's description, which belonged to Garcia.

Garcia was advised of his Miranda rights, and Detectives Sanchez III and Sanchez, Jr., questioned him in the trailer.   The detectives recorded the interview, which continued in their patrol car and then at the sheriff's department.

At first, Garcia denied knowledge of the firearms, but eventually admitted they belonged to him.   Garcia also initially denied being involved in the shooting, but later agreed that he had done it.¹  Asked why he did it, Garcia said, “it's like a little warning or something, you know, like leave me alone.”   He said that he had been a Southerner since he was 12 years old.   He started smoking marijuana when he was 12 or 13 years old and also snorted crank.   The detectives also questioned Garcia about another shooting involving a white Lincoln that occurred after February 1, 2009.   Garcia denied involvement in that shooting and continued to deny involvement throughout questioning.

Sanchez III asked Garcia if he would like to write an apology letter and he said he would.   Garcia handwrote a letter dated February 19, 2009, at 6:30 p.m., which read:

“I sincerely apologize for having commited the crime that i did i regret having done it because i was not in my ful[l] state of mind it was a stupidity I commited because the alcohol & marijuana made me believe that I was a bad ass I sincerely apologize.

“Signed:

“Angel Benitez Garcia”

Two days after Garcia confessed, Reynoso and Lopez were shown a photographic lineup of six photographs.   Reynoso identified Garcia as the shooter, but Lopez was not able to identify anyone.   At trial, however, Reynoso could not identify Garcia as the shooter and said he looked too short and thin.

Garcia was charged with five counts:  (1) assault with a firearm (Pen.Code,2 § 245, subd. (a)(2));  (2) discharge of a firearm with gross negligence (§ 246.3, subd. (a));  (3) possession of a short-barreled rifle (§ 12020, subd. (a)(1));  (4) receipt of stolen property (the .380 Bersa semiautomatic handgun) (§ 496, subd. (a));  and (5) participation in a criminal street gang ³ (§ 186.22, subd. (a)).  Gang enhancements were alleged with respect to counts 1 through 4 (§ 186.22, subds.(b)(1)(A)-(C)).  On count 1, it was alleged that Garcia personally used a firearm (§§ 12022.5, 1192.7, subd. (c), and 667.5, subd. (c)).  On count 2, it was alleged that the offense was a serious felony (§ 969, subd. (f)) in that Garcia used a dangerous and deadly weapon within the meaning of sections 667 and 1192.7.

A jury trial began on October 28, 2009.   The defense theory was that Garcia falsely confessed to the crimes and it was more likely that E.E., a juvenile, was the shooter and owner of the firearms.   E.E.'s parents had been shot and killed a few months earlier, and defense counsel theorized that the killing had been committed by Northerners.   According to defense counsel, E.E. was a Southerner;  also lived at Hernandez's trailer;  had access to the firearms found in the trailer;  and probably shot at Lopez, a Northerner, for revenge.

Garcia testified on his own behalf.   He was kicked out of his parents' home when he was 16 years old and was living on the street.   Garcia was 18 years old at the time of his arrest.   He denied any involvement in the shooting, saying he was probably at the swap meet or smoking methamphetamine with Hernandez or at the canal on the day of the shooting.   Garcia explained that he falsely told the officers that the firearms were his “because [he] wasn't about to let Antoinette [Hernandez] go to jail,” and, since he was homeless and had not showered in a few weeks, “jail seemed like a good idea.”

Garcia told the jury that he falsely confessed to the shooting because he thought he would go to jail for a while, “they would find out the truth,” and then he would be released.   He thought spending a short time in jail would be an opportunity to straighten out his life:  “I would sober up, you know, get in touch with my parents, associate with my parents better, maybe move back with them and, you know, things would clear up․  I would be sober.   I'd be drug free.   I would get away from the gangs.”   Garcia also explained that, in responding to the questioning of the detectives, “it was just easier to go with the flow, to go with what [the officers] were telling me because they wouldn't listen.   When I would tell ‘em it's not me, it's not me, [they would say] bullshit, it's you, don't fucking lie to us and stuff like that.   It just seemed easier to me.”

According to Garcia, in February 2009, the residents of the trailer where he was arrested were Hernandez and her boyfriend, Hernandez's daughter, Amberlyn, and her boyfriend, E.E., and another couple, Jose Rangel and “Little Tonia.” ⁴  He said a person known as Sharkey owned the .380–caliber handgun.   During January and February 2009, Garcia observed E.E. with the handgun three to six times.   Garcia identified three other people he had seen with the handgun and said “a variety of people handled that .380.”   He also saw E.E. with the .22–caliber short-barreled rifle.   E.E. was a Southern gang member and was in custody for murder at the time of Garcia's trial.

Hernandez testified that she used to live in the same apartment complex where E.E. and his parents lived.   E.E.'s parents were shot and killed at the complex in October 2008.   Hernandez, who was next to E.E.'s mother when she was shot, moved from the apartment complex to the trailer because of the shooting.   She dated Southerners in the past, and Rangel, who lived at the trailer with his girlfriend, was a Southerner.   Friends of Hernandez and Garcia sometimes stayed at the trailer.   There was Southern gang-related graffiti in the trailer, which Hernandez said was written by “[t]he guys that were there at my house.”   The trailer was shot at around a week before Garcia was arrested.   Asked by defense counsel whether she ever heard E.E. talk about getting revenge or wanting to shoot the people who had killed his parents, Hernandez responded no.

E.E. told Detective Sanchez III that he put a scope on the short-barreled rifle found in the trailer and that the rifle had been used in a shooting in October 2008.   E.E. was presented to the jury to show his physical similarity to Garcia and, consequently, how Reynoso could have mistaken Garcia for E.E. in a photographic lineup.   Defense counsel also intended to show Reynoso a photographic lineup including a photo of E.E., but she said it had been too long since the incident for her to identify the shooter.

On November 5, 2009, the jury found Garcia guilty on all five counts and found all the special allegations true.   Garcia was sentenced to 16 years in state prison based on three years for count 1, plus a consecutive term of three years on the firearm special allegation, and a consecutive term of 10 years on the gang allegation for a total term of 16 years.   Garcia also received two years on each of counts 2 through 5 to be served concurrently with count 1. The trial court did not address gang enhancements with respect to counts 2 through 4.⁵ The abstract of judgment correctly lists the time imposed for each count and the enhancements for count 1, but incorrectly states that the total term is 13 years, rather than 16 years.   The abstract of judgment also incorrectly states that Garcia received 154 days of local conduct credits, instead of the correct amount, which is 144 days.   The parties agree that the credit total (432 days) is correct.

DISCUSSION

I. Exclusion of testimony

Garcia contends that the trial court erred by excluding his testimony about what E.E. said to him.   Garcia argues that he should have been able to testify about (1) E.E.'s proposal on February 13, 2009, to “go shooting” with him, and (2) whether E.E. told him what he planned to do with the .380–caliber handgun.

A. E.E.'s proposal to go shooting

As we have discussed, the defense theory was that E.E., not Garcia, was the shooter and the owner of the firearms.   When Garcia testified, his counsel questioned him about E.E.'s statements.   The prosecutor objected on hearsay grounds.   The court responded, “Well, I need to know where this is going.   I don't know if it's coming in for a hearsay purpose or some other purpose, so let's talk.”   The parties then had a sidebar discussion, during which defense counsel explained that Garcia would testify that E.E. asked him “to go out with him to shoot people.”   Defense counsel asserted that the statement could be admitted to show state of mind,⁶ and the court stated, “I'm inclined to allow that.”

Defense counsel then asked Garcia whether E.E. made any threats toward him sometime before February 19, 2009.   After the prosecutor again objected to the question as calling for hearsay, the court instructed defense counsel to lay the foundation for the testimony.   Garcia testified that on February 13, 2009, “[E.E.] rolled up and he started confronting me about that, what was I gonna do, if I was gonna go shooting with him.   I told him no.   I told him why.”   The prosecutor again raised a hearsay objection.   The court ordered the response stricken, and counsel had another sidebar discussion:

“THE COURT:  What's—I'm sorry, ․ what is this relevant to?

“[Defense counsel]:  This is about when [E.E.] asked [Garcia] to go out shooting with the .380, and when he refused, [E.E.] called him a bitch.

“THE COURT:  I know, but it's February 13th.   This incident [i.e., the shooting] is alleged to have occurred on the 1st.   It's two weeks afterwards.

“[Defense counsel]:  The date of the gun possession and everything are on the 19th, and that's ․ relevant as to who possessed the guns and—

“THE COURT:  Some other incident is—I fail to see the relevance of it.   Certainly, third party culpability is an available defense, but there are—we have February 1st charged here, and we have February 19th charged as Count 5. February 13th is after ․ the shooting.

“Assuming it to be true ․ and I'm not, I'm just saying that's the argument to be made that [E.E.] wanted to shoot somebody on the 13th, that's not—under—well, I don't have an objection by the DA so—

“[Prosecutor]:  Well, my objection is relevance and hearsay․

“THE COURT:  [I]t's not relevant to either of the charges insofar as statements relating as to what he wanted the defendant to do with him.

“If your client testifies that [E.E.] had possession of the firearm on that day, arguably, it has something to do with ․ the counts, but otherwise, under Evidence Code Section 352, it does not come in.”

Subsequently, Garcia was not asked, and he did not testify about, whether he saw E.E. with the handgun on February 13, 2009.

On appeal, Garcia argues that the trial court should have allowed his testimony about what E.E. said to him on February 13, 2009, because it tends to show that E.E. possessed a gun and had shot at people before.   The trial court concluded that the testimony was not relevant and also stated that it was excluding the testimony under Evidence Code section 352.   In either case, we review the decision to exclude the testimony for an abuse of discretion.   (People v. Waidla (2000) 22 Cal.4th 690, 717;  People v. Lewis (2001) 26 Cal.4th 334, 372–373.)

Relevant evidence is “evidence ․ having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”  (Evid.Code, § 210.)   Evidence of third-party culpability is admissible if it is “capable of raising a reasonable doubt of defendant's guilt.”  (People v. Hall (1986) 41 Cal.3d 826, 833.)   Third-party culpability evidence is treated “like any other evidence:  if relevant it is admissible ( [Evid.Code,] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ( [Evid.Code,] § 352).”  (Id. at p. 834.)

Here, E.E.'s alleged statement about going “shooting” does not tend to show that E.E., and not Garcia, possessed the short-barreled rifle (count 3) or the .380–caliber handgun (count 4) that were found in the trailer.   At the point this testimony was offered, there was no evidence connecting E.E. to the firearms.   Garcia had not yet testified that he had observed E.E. with the handgun and the rifle, and Hernandez had testified that she never saw E.E. with a gun.

Further, E.E.'s alleged statement on February 13, 2009, of an intention to go shooting does not tend to show that he had that intention earlier.   The court had already ruled that a statement by E.E. about an intention to go shooting might be admissible to show E.E.'s state of mind.   E.E.'s state of mind, however, was only relevant to the extent it tended to show that E.E. committed the shooting on February 1, 2009 (counts 1 and 2).  (People v. Hall, supra, 41 Cal.3d at p. 833 [to be admissible, evidence of third-party

culpability must “link[ ] the third person to the actual perpetration of the crime”].)   After learning that the proffered statement occurred after February 1, 2009, the trial court reasonably determined that the statement was not relevant because it did not tend to show that E.E. was the shooter.   E.E.'s statement might be evidence of a propensity to engage in shootings, but such evidence would not be admissible to show E.E. committed the shooting on February 1, 2009.  (Evid.Code, § 1101, subd. (a);  see People v. Lewis, supra, 26 Cal.4th at p. 373 [evidence of third person's criminal disposition inadmissible to show third-party culpability].)

B. E.E.'s plans for the gun

After his testimony about what E.E. said to him on February 13, 2009, was stricken, Garcia testified that he saw E.E. with the .380–caliber handgun at the end of January and beginning of February three to six times.   He also saw E.E. with two boxes of ammunition.   Defense counsel asked Garcia, “Did [E.E.] ever tell you what he was gonna do with the gun?”   The prosecutor objected on hearsay grounds, and the trial court sustained the objection.   Defense counsel did not argue that the response would be admissible under a hearsay exception or for a nonhearsay purpose, nor did he attempt to rephrase the question.   Instead, he moved on from E.E. and asked if he (Garcia) ever fired the .380 at anyone.

Garcia now contends that the trial court abused its discretion by excluding his response.   Preliminarily, Garcia contends that the question was not objectionable because it called for a “yes” or “no” response.   We reject this argument.   The trial court reasonably interpreted the question as likely to elicit a response from Garcia describing E.E.'s statements.   Even assuming a preliminary “yes” or “no” response improperly was excluded, we conclude the error is harmless.   It is not reasonably probable that the jury would have reached a verdict more favorable to Garcia had he been allowed to answer “yes” or “no.”  (See People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103 [reviewing trial court's exclusion of defense evidence on hearsay grounds under People v. Watson (1956) 46 Cal.2d 818, 836].)

Assuming that the court's ruling was directed at an expected answer describing what E.E. said to him, Garcia argues that the court erred because (1) it did not know what Garcia's testimony would be, and (2) the testimony was admissible under Evidence Code section 1250.   We are not persuaded.

“The proponent of proffered testimony has the burden of establishing its relevance, and if the testimony is comprised of hearsay, the foundational requirements for its admissibility under an exception to the hearsay rule.   [Citations.]  Evidence is properly excluded when the proponent fails to make an adequate offer of proof regarding the relevance or admissibility of the evidence.  [Citations.]”  (People v. Morrison (2004) 34 Cal.4th 698, 724.)

Here, as we have said, the trial court reasonably determined that defense counsel's question was likely to elicit a response from Garcia describing E.E.'s statements.   It was also reasonable for the court to determine that the statements E.E. made to Garcia about “what he was gonna do with the gun” would be hearsay evidence.

Garcia asserts that “a court abuses its discretion when it makes a decision to exclude evidence when it is not sufficiently aware of the underlying facts to knowledgeably exercise discretion.”   It was Garcia's burden, however, to establish relevance and a hearsay exception.  (People v. Morrison, supra, 34 Cal.4th at p. 724.)   If Garcia believes that the trial court should have known what Garcia's testimony was going to be in order to rule on its admissibility, it was incumbent on Garcia to make an offer of proof.

Likewise, Garcia argues that E.E.'s statements would have been admissible as evidence of his state of mind under Evidence Code section 1250, but it was Garcia's burden to establish an exception to the hearsay rule.   In addition, as discussed above, E.E.'s state of mind was only relevant to the extent it tended to show that he, and not Garcia, committed any of the crimes charged.   Defense counsel's question was not limited in time and was likely to elicit a response that was not relevant.

Even assuming the trial court did err in excluding Garcia's testimony, the error was harmless.   Garcia contends that the Chapman standard of review (Chapman v. California (1967) 386 U.S. 18, 24) applies because the evidentiary rulings prevented him from presenting a defense.   We reject this contention.

“As a general matter, the ‘[a]pplication of the ordinary rules of evidence ․ does not impermissibly infringe on a defendant's right to present a defense.’  [Citations.]  Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense.  [Citation.]”  (People v. Fudge, supra, 7 Cal.4th at pp. 1102–1103.)

Here, Garcia was allowed to present evidence in support of his theory that E.E. was culpable.   Defense counsel questioned Hernandez, her boyfriend, and her daughter about E.E. Garcia testified that E.E. was a Southerner, he handled both of the firearms, and he was in custody for murder.   Evidence was presented that E.E's parents had been killed, and that E.E. told police he knew the short-barreled rifle was used in a shooting.   In addition, E.E. was presented to the jury in person.   Although defense counsel may not have been able to elicit all the testimony he had hoped for, the trial court did not prevent Garcia from presenting a defense based on third-party culpability.

Consequently, we review any alleged error under the Watson standard (People v. Watson, supra, 46 Cal.2d at p. 836).   Here, the record does not show that it is reasonably probable that the result would have been more favorable if Garcia's testimony had been allowed.

II. Jury instruction

Garcia next claims the trial court erred by instructing the jury on flight because there was no evidence in the record to support a finding of flight.   Although defense counsel did not object to the jury instruction, Garcia has not forfeited this claim.  (People v. Taylor (2010) 48 Cal.4th 574, 630, fn. 13.)

Detective Sanchez III testified that, when he pulled up to the trailer to arrest Garcia, he saw him near the front door of the trailer.   Sanchez III was familiar with Garcia because he had arrested him before.   Sanchez III testified, “[I saw] him look at me, we made eye contact, and then he proceeded to move towards the door, at which time I exited [the police car], and he quickly entered the door.”   Sanchez III ran to the door of the trailer where he was met by Hernandez.   Garcia then came to the doorway of the trailer, and the officers arrested him.

The trial court gave the jury the following instruction:

“If the defendant fled or tried to flee upon the arrival of the officers at the trailer, that conduct may show that he was aware of his guilt.   If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct.   However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”

“ ‘An instruction on flight is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt, and flight requires neither the physical act of running nor the reaching of a far-away haven.  [Citation.]  Flight manifestly does require, however, a purpose to avoid being observed or arrested.’  [Citation.]”  (People v. Visciotti (1992) 2 Cal.4th 1, 60.)

Garcia argues that all he did was “enter his own dwelling upon seeing the detective and then come to the front door and into the officer's presence without coercion of any kind.”   We agree with the People, however, that the jury reasonably could infer from Detective Sanchez III's testimony that, upon seeing officers pulling up, Garcia quickly entered the trailer “to avoid being ․ arrested.”  (People v. Visciotti, supra, 2 Cal.4th at p. 60.)   Further, any error in instructing the jury on flight was harmless.  (People v. Silva (1988) 45 Cal.3d 604, 628 [reviewing error in giving flight instruction under People v. Watson, supra, 46 Cal.2d at p. 836];  People v. Guiton (1993) 4 Cal.4th 1116, 1130 [error in giving instruction on “unsupported theory” is one of state law].)

“In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.  [Citation.]”  (People v. Guiton, supra, 4 Cal.4th at p. 1130.)   Here, the flight instruction itself “did not posit the existence of flight;  both the existence and significance of flight were left to the jury.”   (People v. Crandell (1988) 46 Cal.3d 833, 870, abrogated on another point in People v. Crayton (2002) 28 Cal.4th 346.)

The jury was also instructed:  “Some of these instructions may not apply depending upon your findings about the facts of the case.   Do not assume that just because I give a particular instruction that I am expressing an opinion or suggesting anything to you.   After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.”   The prosecutor did not argue consciousness of guilt based on flight.  (People v. Crandell, supra, 46 Cal.3d at p. 870 [no harm where flight “instruction did not figure in the prosecutor's closing argument”].)   Nor is there any evidence, such as questions from the jury, indicating that the jury relied on flight in reaching its verdict.   For these reasons, it is not reasonably probable that Garcia would have received a more favorable verdict if the flight instruction had not been given.

Garcia argues that the prejudice discussion in People v. Crandell, supra, 46 Cal.3d 833 is not applicable because, in that case, there was evidence from which the jury could find that the defendant fled and permissibly infer a consciousness of guilt.   Garcia misreads the case.   In Crandell, the court held that flight requires “a purpose to avoid being observed or arrested.”   (Id. at p. 869.)   There was no such evidence in that case, and the defendant's leaving the crime scene “was not flight in the absence of any evidence from which a jury could reasonably infer that [the defendant] left to avoid being observed or arrested.”  (Ibid.) The error was harmless in spite of this fact.  (Id. at p. 870.)   We are, therefore, not persuaded by Garcia's attempt to distinguish Crandell.

We also reject Garcia's contention that instructing the jury on flight lessened the prosecutor's burden of proof in violation of due process.   (People v. Mendoza (2000) 24 Cal.4th 130, 180 [rejecting due process challenge to flight instruction];  see also People v. Jackson (1996) 13 Cal.4th 1164, 1224 [“consciousness-of-guilt instructions did not improperly endorse the prosecution's theory or lessen its burden of proof” where instructions clarified that conduct was not sufficient to prove guilt and allowed jury to determine significance of conduct].)

As part of this contention, Garcia argues that the flight instruction creates an “unconstitutional permissive inference[ ].”  We disagree.

“A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved․  A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.”  (Francis v. Franklin (1985) 471 U.S. 307, 314–315.)

Here, Garcia asserts the permissive inference was unconstitutional because “there was no evidence of flight at all” in this case.   If Garcia is correct that there was no evidence of flight, then the “predicate fact[ ]” of flight was not proved, and the “permissive inference” of consciousness of guilt did not come into play at all.  (Francis v. Franklin, supra, 471 U.S. at pp. 314–315.)   In our view, there was evidence from which the jury could find that Garcia went inside the trailer to avoid arrest.   If the jury made such a finding, an inference may be drawn that Garcia did so out of consciousness of guilt.

III. Ineffective representation

Garcia argues that defense counsel provided ineffective representation at trial by failing to object to evidence that he committed unrelated drug offenses.   Specifically, he argues that trial counsel should have objected to admission of evidence that he was arrested on February 19, 2009, for being under the influence of a controlled substance.   This argument is without merit.

“Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel's failings, defendant would have obtained a more favorable result.  [Citations.]  A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome.  [Citations.]

“Our review is deferential;  we make every effort to avoid the distorting effects of hindsight and to evaluate counsel's conduct from counsel's perspective at the time.  [Citation.]  A court must indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance.  [Citation.]  Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances.  [Citation.]  Nevertheless, deference is not abdication;  it cannot shield counsel's performance from meaningful scrutiny or automatically validate challenged acts and omissions.  [Citation.]”  (People v. Dennis (1998) 17 Cal.4th 468, 540–541.)

“[I]f the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation․’  [Citation.]”  (People v. Cudjo (1993) 6 Cal.4th 585, 623.)

In this case, a satisfactory explanation is apparent.   Garcia explained to the jury that he falsely confessed, in part, so that he would “sober up” and “be drug free” in jail.   He mentioned his long-time drug use in his interview with the detectives, and he told the jury that, on the day of the shooting, he was likely smoking methamphetamine with Hernandez.   He also testified that he smoked methamphetamine and marijuana on the day he was arrested and questioned.   The additional fact that police went to the trailer to arrest Garcia on a charge of being under the influence of a controlled substance only confirmed Garcia's own testimony—he was a drug user—and bolstered his explanation for confessing.   Further, as the People point out, the existence of an arrest warrant on a misdemeanor charge is an alternative explanation for why Garcia might have wanted to avoid being seen or apprehended by the police on the day he was arrested at the trailer.

In any event, Garcia cannot show prejudice.   Garcia asserts that evidence of other crimes and drug use is highly inflammatory.   He also argues that, if defense counsel had excluded evidence of the arrest, then Garcia might not have testified about his own drug use.   Even if Garcia had not testified at trial about his own drug use, his taped confession, which was played to the jury, showed that he had used drugs since he was 12 and he had been arrested before.   Evidence was admitted (over defense counsel's objection) that Garcia had self-identified as a Southerner on more than one inmate classification form.   As a result, the jury knew that Garcia had been arrested and placed in custody more than once.   Under these circumstances, evidence that Garcia was arrested for a misdemeanor charge of being under the influence was not particularly inflammatory.   Consequently, we conclude that it is not reasonably probable that Garcia would have obtained a more favorable result if defense counsel had objected to the admission of this evidence.

IV. Section 654

Count 1, assault with a deadly weapon, and count 2, discharge of a firearm with gross negligence, arise from the shooting directed at Lopez that occurred on February 1, 2009.   Garcia argues that the sentence on count 2 must be stayed pursuant to section 654 because the charge was based on the same act or course of conduct as count 1. We disagree.

Section 654 provides, in part:  “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”

This statute bars double punishment for a single criminal act or for a single indivisible course of conduct in which the defendant had only one criminal intent or objective, although the conduct violated two statutes.  (People v. Bauer (1969) 1 Cal.3d 368, 376;  In re Ward (1966) 64 Cal.2d 672, 675–676;  Neal v. State of California (1960) 55 Cal.2d 11, 19.)  Section 654 does not, however, limit punishment where multiple crimes of violence have multiple victims.  (People v. Oates (2004) 32 Cal.4th 1048, 1063.)   This is because “[a] defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.”  (Neal v. State of California, supra, at p. 20, italics added.)

Garcia argues that the multiple-victim exception does not apply because, “while it was theoretically possible for one of the bullets fired to have hit someone other than Lopez, there was no evidence that anyone was actually present in the vicinity who could have suffered harm from the fired shots.”   Evidence showed, however, there were residents in their homes the night of the shooting who could have suffered harm from Garcia's discharge of the .380–caliber handgun with gross negligence.   The shooting occurred around 9:15 p.m. on Sunday, February 1, 2009, as Garcia and another man chased Lopez down a residential street.   Two residents of the block on Ella Avenue where the shooting occurred testified at trial.   Sarah Herrera was in her living room watching television when she heard a gunshot that “was a loud boom ․ like right in front of [her] front door.”   Javier Valdez was asleep when he heard gunshots that “sounded like they were in front of [his] face․”

The victim of count 1, assault with a deadly weapon, was Lopez, but the victims of count 2, discharge of a firearm with gross negligence, were residents, visitors, and bystanders who happened to be in the vicinity of the shooting, including Herrera and Valdez.  Section 654, therefore, does not prevent punishment for both counts.  (See, e.g., People v. Higareda (1994) 24 Cal.App.4th 1399, 1413;  People v. Masters (1987) 195 Cal.App.3d 1124, 1128;  and see In re Sergio (1991) 228 Cal.App.3d 588, 598.)

V. Gang enhancements

Under section 186.22, a trial court has the discretion to strike a gang enhancement and, if it does so, must specify on the record “the circumstances indicating that the interests of justice would best be served by that disposition.” (§ 186.22, subd. (g).)  “The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal.  [Citations.]”  (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)

Here, the court did not impose or strike the gang enhancements on counts 2 through 4, and, consequently, the sentence as to these counts is unauthorized.  (People v. Bradley, supra, 64 Cal.App.4th at p. 391.)   We agree with the People that the case should be remanded to the trial court to determine whether it intended to strike the gang enhancements associated with counts 2 through 4. (See, e.g., People v. Jordan (2003) 108 Cal.App.4th 349, 368–369 [remanding to trial court to strike or impose prior prison term enhancement] ).   Garcia does not object to this disposition.

VI. Section 4019

On January 25, 2010, after Garcia was sentenced, an amendment to section 4019 became effective.  (Stats.2009, 3d Ex.Sess., ch. 28, § 50.) ⁷  The amendment increased the amount of presentence conduct credit available to defendants who are not required to register as sex offenders and whose current and prior offenses do not include serious or violent felonies. (§ 4019, subds. (b)(1), (b)(2), (c)(1), (c)(2).)   In a standing order filed on February 11, 2010, we deemed raised the issue of whether the amendment applies retroactively to pending appeals in which a defendant was sentenced before the effective date.   In this case, the jury found that Garcia committed a serious felony within the meaning of section 1192.7.   As a result, he would not be entitled to increased conduct credit even under the amendment. (§ 4019, subds.(b)(2), (c)(2).)

VII. Abstract of judgment

The abstract of judgment incorrectly states that that the total term is 13 years, rather than 16 years, and that Garcia received 154 days of local conduct credits, rather than 144 days.   We direct the trial court to correct the abstract of judgment.

DISPOSITION

We remand to the trial court to exercise its discretion in addressing the gang enhancements in counts 2 through 4. In addition, the trial court shall amend the abstract of judgment to reflect a sentence of 16 years and local conduct credits of 144 days.   In all other respects, the judgment is affirmed.

Wiseman, Acting P.J.

WE CONCUR:

Cornell, J.

Poochigian, J.

FOOTNOTES

FN1. The officers provided most of the facts and Garcia assented.   For example, an officer said, “You were trying to send him a message that you're not going to be messing with the family over here or the Sureños [Southerners]?” and Garcia responded, “Pretty much.”   The officer continued, “Is that why you shot that in the air?   Yes? You are shaking your head, yes?”   Garcia said, “Yeah.” Garcia also got some of the details wrong—he did not remember that the person he shot at was with a girl, and he said the victim was wearing red, but Lopez was not wearing red..  FN1. The officers provided most of the facts and Garcia assented.   For example, an officer said, “You were trying to send him a message that you're not going to be messing with the family over here or the Sureños [Southerners]?” and Garcia responded, “Pretty much.”   The officer continued, “Is that why you shot that in the air?   Yes? You are shaking your head, yes?”   Garcia said, “Yeah.” Garcia also got some of the details wrong—he did not remember that the person he shot at was with a girl, and he said the victim was wearing red, but Lopez was not wearing red.

FN2. All further statutory references are to the Penal Code unless otherwise stated..  FN2. All further statutory references are to the Penal Code unless otherwise stated.

FN3. The gang-participation charge related to the firearms and the theory that Garcia possessed the firearms and allowed other gang members to use them.   Count 5 is not related to the shooting of February 1, 2009..  FN3. The gang-participation charge related to the firearms and the theory that Garcia possessed the firearms and allowed other gang members to use them.   Count 5 is not related to the shooting of February 1, 2009.

FN4. Hernandez confirmed that E.E. dated her daughter Amberlyn but testified that he only stayed the night at the trailer two times during the period October 2008 through February 2009.   Amberlyn also testified that E.E. did not live in the trailer..  FN4. Hernandez confirmed that E.E. dated her daughter Amberlyn but testified that he only stayed the night at the trailer two times during the period October 2008 through February 2009.   Amberlyn also testified that E.E. did not live in the trailer.

FN5. The minute order states that the trial court imposed gang enhancements of five years on count 2 and three years on counts 3 and 4, and these enhancements were stayed.   The trial court, however, did not mention the gang enhancements during the sentencing hearing, and the abstract of judgment does not include any enhancements for counts 2 through 4..  FN5. The minute order states that the trial court imposed gang enhancements of five years on count 2 and three years on counts 3 and 4, and these enhancements were stayed.   The trial court, however, did not mention the gang enhancements during the sentencing hearing, and the abstract of judgment does not include any enhancements for counts 2 through 4.

FN6. Evidence Code section 1250 provides, in part, that “evidence of a statement of the declarant's then existing state of mind ․ (including a statement of intent, plan, motive, design ․ ) is not made inadmissible by the hearsay rule when:  [¶] (1) The evidence is offered to prove the declarant's state of mind ․ at that time or at any other time when it is itself an issue in the action;  or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.”.  FN6. Evidence Code section 1250 provides, in part, that “evidence of a statement of the declarant's then existing state of mind ․ (including a statement of intent, plan, motive, design ․ ) is not made inadmissible by the hearsay rule when:  [¶] (1) The evidence is offered to prove the declarant's state of mind ․ at that time or at any other time when it is itself an issue in the action;  or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.”

FN7. Subsequent references to section 4019 are to the version that went into effect on January 25, 2010.   The Legislature has since amended section 4019 again, effective September 28, 2010, expressly designating the amendment as prospective only.  (Stats.2010, ch. 426, § 2.).  FN7. Subsequent references to section 4019 are to the version that went into effect on January 25, 2010.   The Legislature has since amended section 4019 again, effective September 28, 2010, expressly designating the amendment as prospective only.  (Stats.2010, ch. 426, § 2.)