THE PEOPLE v. ALAN JAVIER GONZALEZ (2011)

Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ALAN JAVIER GONZALEZ, Defendant and Appellant.

2d Crim. No. B219654

Decided: June 22, 2011

Alan Javier Gonzalez appeals the judgment, by jury, convicting him of the second degree murder of 19–year old Alex Aldana (Pen.Code, §§ 187, subd. (a), 189),1 assault with a semiautomatic firearm on Lydia Hernandez (§ 245, subd. (b)(1)), two counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), and one count of being a felon in possession of ammunition. (§ 12316, subd. (b)(1).)   The jury further found that, in committing the murder and the assault, appellant personally discharged a firearm and that he committed the offenses for the benefit of a criminal street gang. (§§ 12022.53, subd. (b)-(d), 186.22, subd. (b).)  Appellant admitted that he had one prior strike conviction. (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d).)  The trial court sentenced appellant to a term in state prison of 55 years to life for the murder, plus 47 years, 4 months on the remaining convictions.   Appellant contends the trial court erroneously permitted the prosecution's expert witness on criminal street gangs to offer an opinion concerning his specific intent in committing the murder and assault.   He further contends that there was insufficient evidence of his intent to benefit a gang, that his sentence on two separate counts of being a felon in possession of a firearm violates section 654, and that he was deprived of 61 days of presentence custody credit.   Respondent agrees that appellant is entitled to the additional custody credit and urges us to further correct the abstract of judgment by striking a five-year prior serious felony conviction enhancement (§ 667, subd. (a)(1)), inadvertently imposed by the trial court.   We correct the abstract of judgment as requested and, in all other respects, affirm.   Facts Appellant admits that he is a member of Tree Park Crew (TPC), a street gang that is active in the Hollywood area of Los Angeles.   One night in June 2008, he and a fellow gang member attended a party near the neighborhood “claimed” by TPC as its “turf.”   There was live music at the party and the “guests” paid admission to hear it.   Andres Hernandez was also at the party with a group of his friends.   Hernandez borrowed a bicycle to go buy more liquor at a nearby store.   He was moving through the crowd on the bicycle when he accidently bumped into appellant.   The men exchanged words.   Appellant asked Hernandez, “Where you from?”   Hernandez, who understood appellant was asking for his gang affiliation, said he was “from nowhere.”   Appellant asked, “What's your problem?   You want to start something?”   Hernandez apologized, said he didn't want to start anything and explained that he was just “a little buzzed.”   The situation appeared to be calming down when Alex Aldana, a friend of Hernandez', walked over.   Aldana asked appellant, “Why are you messing with my homie?”   Appellant asked where Aldana was from.   Aldana replied, “DB,” a reference to Drunk Bums, his skateboarding crew.   Appellant asked Aldana if he wanted to get shot.   Aldana said he didn't care.   Witnesses heard Aldana say, “You're going to shoot me, then shoot me right here in front of everyone.   Shoot me right now.”   Appellant did.   He fired a semiautomatic handgun five or six times at Aldana.   Aldana was hit three times;  two of the wounds were fatal.   Another guest at the party, Lydia Hernandez, was hit in the left leg by one of appellant's bullets.   Although she recovered from her injury, she continues to experience pain and is limited in some physical activities, such as running.   Andres Hernandez and other friends who were at the party with Aldana described appellant by, among other things, the “LA” tattoo on his neck.   They also identified him from photographic line ups and at the preliminary hearing.   Although the witnesses acknowledged that appellant was standing with another man during the confrontation, they all identified appellant as the shooter, rather than the other man.   The theory of the defense at trial was that appellant's friend and fellow TPC member, Alex Amezcua, was the shooter.   Appellant testified that he had been a member of TPC since 2004.   He went to the party with his younger brother and met Amezcua there.   They were standing outside, smoking when Hernandez bumped into Amezcua with his bike.   Appellant convinced Amezcua to let the incident go.   Appellant was chatting with Hernandez, some distance away from Amezcua, when he saw Aldana approach Amezcua and start an argument.   The two men exchanged words.   Appellant was too far away to hear what was being said.   When the music died down, he heard Amezcua tell Aldana to back up.   Aldana asked, “What the fuck are you going to do if I don't?”   At that point, Amezcua pulled a gun and shot Aldana.   Appellant testified that he did not claim his gang during the incident and never saw or heard Amezcua do so.   Discussion Expert Testimony on Gang Enhancement Tiffany Eastman, a six-year veteran of the Los Angeles Police Department (LAPD) assigned to the gang unit in the Hollywood Division, testified as an expert witness on criminal street gangs.   Eastman's qualifications as a gang expert included both her classroom training and her years as an LAPD officer.   Eastman described the TPC, appellant's gang, including the “turf” they claim, their primary criminal activities, their favored tattoos and symbols, and their rival gangs.   She opined that appellant is a member of TPC because he had admitted membership to other LAPD officers and because he has many gang-related tattoos that refer specifically to TPC. Presented with a hypothetical question that closely mirrors the facts of this case, Eastman offered the opinion that the shooting would have been committed for the benefit of a criminal street gang.   She based her opinion on several facts including the use of the phrase “where you from [,]”, the fact that the shooting victim claimed membership in another gang, the fact that the gang member warned the victim he could “get shot,” and the fact that the victim challenged the gang member to shoot.   Officer Eastman testified that the victim's challenge to the shooter was particularly significant because the victim had “challenged this gang member.   He's kind of put this gang member's reputation on the line.   Is he going to answer up and follow through with this threat, or is he going to do nothing and pretty much, I guess what they would say, get punked?   Or he got disrespected and didn't do anything about it.  [¶] So the fact that that was said, he's now been challenged.   You have the reputation not only of that individual as a gang member but you have the reputation of that gang on the line.”   Eastman also offered the opinion that the shooting would enhance the reputation, status and respect for both the individual gang member and the gang itself because other people would know that members of TPC are willing to kill for their gang, even in front of many witnesses.   The shooting would also “instill[ ] fear and intimidation in a community where [the gang members] can get away with these crimes openly and freely․”  Appellant contends the trial court erred when it permitted Eastman to offer an opinion as to appellant's specific intent to benefit TPC. According to appellant, Eastman's opinion testimony was given in response to a hypothetical question that was too detailed and too closely related to the testimony of other witnesses.   As a result, when Eastman opined that the hypothetical shooting was committed for the benefit of a street gang, she was in fact opining that appellant committed the shooting for the benefit of TPC. We are not persuaded.   The trial court has “considerable discretion to control the form” in which an expert witness is questioned.  (People v. Gardeley (1996) 14 Cal.4th 605, 619.)   It did not abuse that discretion here.   While an expert witness may not give an opinion on whether a witness is telling the truth, is guilty, or actually had a particular subjective knowledge or intent, she is entitled to answer hypothetical questions, based on the evidence in the case, that are relevant to those issues.  (People v. Gonzalez (2006) 38 Cal.4th 932, 946;  People v. Coffman & Marlow (2004) 34 Cal.4th 1, 82;  People v. Garcia (2007) 153 Cal.App.4th 1499, 1512–1513.)   That is what occurred here.   Officer Eastman offered her opinion on the way a gang member would be likely to respond under the circumstances presented in the hypothetical question.   She also testified that, in her opinion, a shooting that occurred under those circumstances would benefit both that gang member and his gang.   She did not testify concerning the knowledge or intent appellant actually, subjectively harbored at the time of the shooting.   There was no error.   Substantial Evidence Supporting Gang Enhancements Appellant contends the gang enhancements are not supported by substantial evidence that he acted with the specific intent to promote, further or benefit his gang, TPC. We evaluate this contention by reviewing “the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”  (People v. Johnson (1980) 26 Cal.3d 557, 578.)   In conducting that analysis, we do not reweigh the evidence or reappraise the credibility of witnesses.  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)   Instead, we presume in support of the judgment every fact the jury could reasonably infer from the evidence and we draw all inferences in favor of the judgment.  (People v. Bloyd (1987) 43 Cal.3d 333, 346–347.)   Here, the jury's findings on the gang enhancements are supported by substantial evidence.   Appellant is an admitted member of TPC. He went to a party with a fellow gang member while armed with a loaded handgun.   The party was located on the fringe of TPC's “territory,” near the territory of an adjacent, rival gang.   Some of appellant's gang-related tattoos were clearly visible to others at the party.   When Andres Hernandez bumped into him, appellant became angry and hostile, demanding to know Hernandez's gang affiliation by asking him, “Where you from?”   He asked the same question of Aldana and, when Aldana responded with the name of a rival gang, appellant asked him if he wanted to get shot.   In front of other party goers, Aldana challenged appellant to go ahead and shoot him.   Appellant did.   Officer Eastman testified that a gang member would have perceived a comment like Aldana's as a challenge to his reputation and that of his gang.   If the gang member failed to respond, he might risk losing the respect of other gang members.   Shooting the challenger would enhance a gang member's personal reputation, make him seem very dedicated to the gang, and it would increase the community's fear of the gang itself, a positive development in gang culture.   This evidence is sufficient to permit a reasonable trier of fact to find beyond a reasonable doubt that appellant had the required intent when he shot Aldana and Hernandez.   Section 654 and Firearm Possession Appellant was convicted of two counts of possessing a firearm while a felon. (§ 12021, subd. (a)(1).)   The first count related to his possession of the firearm on the night of the shooting.   The second count related to appellant's possession of the same firearm, two weeks later, when it was found under his mattress during a search of his home.   No evidence was presented concerning the location of the firearm between the time of the shooting and its discovery two weeks later.   Appellant was sentenced to a consecutive term of 16 months on the first count and a concurrent term of two years on the second.   He contends the sentence violates the prohibition on multiple punishments imposed by section 654.   Section 654 provides, “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.”   The statute prohibits multiple punishments for a single act or indivisible course of conduct.  (People v. Miller (1977) 18 Cal.3d 873, 885.)   Relying on People v. Spirlin (2000) 81 Cal.App.4th 119, appellant contends that section 654 bars multiple punishments for his possession of the firearm because that offense was an indivisible course of conduct.   According to appellant, there is no evidence that the firearm was ever outside of his possession between the time of the shootings and the time of his arrest.   Thus, he possessed it continuously from the date of the shootings to the date of his arrest, constituting only one crime.   In Spirlin, the defendant was convicted of three counts of being a felon in possession of a firearm.   The evidence showed that he used the same firearm to rob the same gas station on two separate occasions, about one month apart and that he was in possession of the firearm on the day of his arrest.   The court of appeal concluded that section 654 prohibited the imposition of separate punishments for these offenses because the “defendant had continuous constructive possession of the gun from a couple of months before the robberies to when the gun was found in defendant's apartment.”  (Id. at pp. 130–131.)   Thus, according to the court of appeal, “defendant's possession of the handgun was a single act with a single objective.   Accordingly, the trial court should have stayed the imposition of sentence on [two of the counts], rather than run them concurrently.”  (Id. at p. 131.)   Respondent contends that Spirlin, was wrongly decided and urges us to follow, instead, People v. Trotter (1992) 7 Cal.App.4th 363.   In Trotter, the defendant stole a taxi and, in an attempt to avoid a pursuing police officer, shot at the officer three times.   After he fired the first shot, the defendant waited about one minute before firing the second shot.   He fired the third shot just seconds later.   The defendant was convicted of three counts of assault on a peace officer and sentenced to consecutive terms on two of the three counts.   The Court of Appeal held that section 654 did not prohibit multiple sentences because the first and second shots were separate volitional acts that “posed a separate and distinct risk to [the pursuing officer] and nearby freeway drivers.”  (Id. at p. 368.)   Moreover, because about one minute elapsed between the first and second shots, the defendant had time to reflect and consider whether to continue or cease shooting.   Because each shot “evinced a separate intent to do violence[,]” the trial court properly punished the defendant separately for two of the three shots.  (Id.) We conclude that Trotter presents the better reasoned view.   Where the defendant repeats the same criminal conduct on different occasions over a period of time, the fact that each instance of criminal conduct involves the same intent and objective does not mean that the offenses were part of an indivisible course of conduct for purposes of section 654.   Offenses committed on separate occasions, through separate volitional acts may be punished separately.  (People v. Beamon (1973) 8 Cal.3d 625, 639.)  “This is particularly so where the offenses are temporally separated in such as way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next [offense], thereby aggravating the violation of public security or policy already undertaken.”  (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)   Appellant's firearm possession falls into that category of offenses.   Every day that appellant had the firearm, he also made an intentional, volitional decision to continue possessing it rather than to dispose of it.   Thus, every day he ignored an opportunity to cease committing the crime and he posed a separate and distinct risk to the people around him.   Section 654 did not bar multiple punishment under these circumstances.   There was no error.   Sentencing Errors Appellant and respondent agree that two separate sentencing errors occurred in this case, requiring that the abstract of judgment be corrected.   First, appellant was arrested on June 18, 2008, and sentenced on October 6, 2009.   He has been in custody continuously since his arrest.   Yet the trial court awarded appellant 415 days of presentence custody credit, rather than the 476 days to which he is entitled.   We will order that the abstract of judgment be corrected to reflect the correct amount of presentence custody credit.  (People v. Smith (1989) 211 Cal.App.3d 523, 526.)   In addition, the trial court imposed a five-year enhancement for appellant's prior serious felony conviction. (§ 667, subd. (a)(1).)   The five-year prior serious felony conviction enhancement must be pled and proved before it may be imposed. (§ 1170.1, subd. (e).)  That did not occur here.   The enhancement was not alleged in the information against appellant.   Accordingly, it was error for the trial court to have imposed it.   We will correct the abstract of judgment to remove the five-year enhancement term. (§§ 969f, 1025, 1158.)