PEOPLE v. CHANY (1996)

Defendants Rolly Chany and Willie Earl Fleming were convicted of five counts of assault with a firearm (Pen.Code, § 245, subd. (a)(2)), one count of discharging a firearm with gross negligence (Pen.Code, § 246.3) and five counts of committing a crime for the benefit of a street gang (Pen.Code, § 186.22, subd. (c)), and Fleming was also convicted of possession of a firearm by a felon (Pen.Code, § 12021, subd. (a)(1)).   The jury found true allegations that the assaults and the possession offense had been committed for the benefit of a street gang (Pen.Code, § 186.22, subd. (b)) and that Fleming had been personally armed (Pen.Code, § 12021.5) and had personally used a firearm (Pen.Code, § 12022.5, subd. (a)) in the commission of the assault and possession offenses.   Fleming was committed to state prison for 10 years, and Chany was committed to state prison for 5 years.

On appeal, defendants assert that (1) their convictions under Penal Code section 186.22,¹ subdivision (c) must be stricken because that subdivision was repealed by the Legislature, (2) the record is insufficient to support the jury's findings that the offenses were committed for the benefit of a street gang, (3) the trial court prejudicially erred in giving a standard flight instruction and (4) the evidence does not support multiple counts of assault with a firearm.   We strike the Penal Code section 186.22, subdivision (c) convictions, but we find sufficient evidence in the record to support the jury's findings and conclude that the flight instruction did not prejudice defendants.

FACTS

Sixteen-year-old Raymond C. and a number of his friends were “hanging out” at his house in San Jose on the afternoon of December 19, 1993.   Raymond and his friends had been members of a gang called “Barrio East Side” when they were younger, but they were no longer members of any gang.  “Barrio East Side” claimed the color red.   At about 5 p.m., Raymond, his father, his two-year-old brother and his friend Juan left the house in a car to drive Juan home.   Raymond's father was driving.   A short distance from Raymond's house, they encountered a dark blue Chevy Impala with three black men in it.   Chany was the driver, and Fleming was the passenger in the Impala.   In the back seat was a man named Maurice.   Juan and Raymond were familiar with Chany and Maurice because they had gone to school with Maurice, and Chany and Maurice had chased and fought Juan in the past.²  They knew that Maurice and Chany were cousins.   Juan and Raymond had never seen Fleming before.   Chany turned the Chevy around and parked it.   He and Fleming got out of the car, walked to the trunk and opened it.   Fleming and Maurice yelled at Raymond and Juan, called them “slob” and challenged them to fight.   Chany used the word “cuz.”   At this point, Raymond's father “took off right away” and drove back to Raymond's house.

Shortly after they arrived back at Raymond's house, the Chevy drove slowly past Raymond's house.   As the car went by, one of the men in it said “meet us at the corner.”   The Chevy parked at an intersection four houses down from Raymond's house.   The three men got out of the Chevy, and Maurice opened the trunk of the car, removed something and handed it to Fleming.   All three men were wearing blue.³  Chany was wearing a blue shirt and dark blue khaki pants, Maurice was wearing a dark blue jacket, and Fleming was wearing a blue sweater.⁴  Chany made gestures toward Raymond and his friends challenging them to fight.   One of the men called Raymond and his friends “Fucking Mexicans.”   Fleming and the other two men were also heard using the words “cuz” and “crip cuz” to refer to one another.

Fleming began unwrapping the item Maurice had handed him.   It was a rifle.   Raymond, his father, Juan and Raymond's friends Anthony and Jason were standing close together in the street in front of Raymond's house.   Fleming walked toward Raymond, his father and his friends pointing the rifle directly at them.   Raymond's father yelled something like “go get the guns.”   Fleming continued to point the rifle at the group.   When Fleming got close to them, the boys hid behind a van and Fleming fired the rifle towards them.   Fleming backed up towards the Chevy and fired a second shot into the air.   The men “ran back to the car,” “jumped in the car real quick and took off” down the street.   Raymond heard two or three more shots as the Chevy drove away.   The Chevy was found later that evening parked a block away.

Defendants were charged by information with six counts of assault with a firearm (Pen.Code, § 245, subd. (a)(2)), one count of discharging a firearm with gross negligence (Pen.Code, § 246.3) and six counts of committing a crime for the benefit of a street gang (Pen.Code, § 186.22, subd. (c)), and Fleming was also charged with possession of a firearm by a felon (Pen.Code, § 12021, subd. (a)(1)).   It was further alleged that the assaults and the possession offense had been committed for the benefit of a street gang (Pen.Code, § 186.22, subd. (b)) and that Fleming had been personally armed (Pen.Code, § 12021.5) and had personally used a firearm (Pen.Code, § 12022.5, subd. (a)) in the commission of these offenses.   The trial court gave a standard flight instruction.⁵  Defendants were acquitted of one of the assault counts and the Penal Code section 186.22, subdivision (c) count based on it, but they were convicted of the remainder of the counts and the enhancements were found true.   Fleming was committed to state prison for 10 years, and Chany was committed to state prison for 5 years.   Both defendants filed timely notices of appeal.

ANALYSIS

A. PENAL CODE SECTION 186.22, SUBDIVISION (C)

 In 1993, when these offenses were committed, Penal Code section 186.22 contained descriptions of two substantive offenses and one enhancement.   Subdivision (a) described a substantive offense characterized by “felonious criminal conduct” and active participation in a gang.⁶  Subdivision (b) described an enhancement which was applicable where a felony was committed for the benefit of a gang.   Subdivision (c) read as follows:  “Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of, or in association with, any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days.   If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in the county jail.”  (Former Pen.Code, § 186.22, subd. (c).)

On April 19, 1994, by urgency measure, the Legislature rewrote Penal Code section 186.22, subdivision (c) so that it now reads as follows:  “If the court grants probation or suspends the execution of sentence imposed upon the defendant for a violation of subdivision (a), or in cases involving a true finding of the enhancement enumerated in subdivision (b), the court shall require that the defendant serve a minimum of 180 days in a county jail as a condition thereof.”  (Stats.1994, ch. 47, § 1, p. 305.)   By so amending the statute, the Legislature eliminated the substantive offense which had previously been described in subdivision (c).   Defendants assert that the Legislature's elimination of the substantive offense previously set forth in subdivision (c) requires the reversal of their convictions for committing that offense.   We agree.

 “[I]t may be regarded as an established rule that the repeal of a penal statute without any saving clause has the effect to deprive the court in which any prosecution under the statute is pending of all power to proceed further in the matter․  The proceeding is arrested at the very point where it is at the date of the repeal.”  (Spears v. County of Modoc (1894) 101 Cal. 303, 305, 35 P. 869.)  “[T]his rule only applies in its full force where there is an outright repeal, and where there is no other new or old law under which the offender may be punished.”  (Sekt v. Justice's Court (1945) 26 Cal.2d 297, 304–305, 159 P.2d 17.)   The 1994 legislation which eliminated the substantive offense previously described in subdivision (c) contained no savings clause.

The Attorney General claims that the 1994 elimination of the subdivision (c) substantive offense does not affect the validity of defendants' convictions for that offense because “[t]he 1994 legislation amended the statute and renumbered the substance of former subdivision (c) as subdivision (b)(1).”   This assertion is consummately false.   Both before and after the 1994 amendment of section 186.22, subdivision (b)(1) described the enhancement for committing a felony for the benefit of a gang.   While the elements of this enhancement mirror, in many respects, the elements of the substantive offense described in subdivision (c) prior to the 1994 amendment of the statute, it is readily apparent that the subdivision (b) enhancement, which remained substantively unchanged by the 1994 amendment of section 186.22, was not intended to replace the substantive offense which that amendment eliminated.   The two subdivisions differ not only in that one describes an enhancement and the other an offense, but also insofar as the subdivision (c) offense can be committed by perpetrating a “felony or misdemeanor” while the subdivision (b) enhancement is applicable only where a felony conviction is sustained.   The Legislature obviously did not intend to replace the subdivision (c) substantive offense with the pre-existing subdivision (b) enhancement, although it seems clear that the Legislature's decision to eliminate the subdivision (c) offense was based on its determination that the subdivision (b) enhancement was sufficient to enforce its condemnation of crimes committed for the benefit of gangs.

The Attorney General's remaining contention is equally unavailing.   He contends that “the general savings clause in Government Code section 9608 would stop any technical abatement of the convictions.”   The California Supreme Court has repeatedly held that Government Code section 9608 does not eliminate the common law rule that the Legislature's repeal of a statute is an expression of its intent that the statute not be applied to pending actions.   (In re Estrada (1965) 63 Cal.2d 740, 748, 48 Cal.Rptr. 172, 408 P.2d 948;  People v. Rossi (1976) 18 Cal.3d 295, 300, 134 Cal.Rptr. 64, 555 P.2d 1313;  In re Pedro T. (1994) 8 Cal.4th 1041, 1050–1052, fn. 5, 36 Cal.Rptr.2d 74, 884 P.2d 1022.)   Instead, Government Code section 9608 merely eliminates the “technical abatement” of convictions where the Legislature has simply repealed and reenacted a statute.  (Rossi at p. 299, 134 Cal.Rptr. 64, 555 P.2d 1313.)   The Attorney General's claim that Government Code section 9608 saves defendants' convictions for committing the substantive offense previously described in subdivision (c) fails for the same reason his other contention fails.   The Legislature has not enacted or reenacted a statute which proscribes the substantive offense previously proscribed by subdivision (c).

The Legislature's elimination of the substantive offense previously described in subdivision (c) occurred on April 19, 1994.   As a result, the trial court had no power to proceed on these counts as of that date, and the jury's April 22, 1994 verdicts are void.   The appropriate remedy is to strike defendants' convictions for violating Penal Code section 186.22, subdivision (c).

B. SUFFICIENT EVIDENCE THAT CRIME WAS COMMITTED FOR THE BENEFIT OF A GANG

 Defendants claim that there is insufficient evidence that the assaults were committed for the benefit of a gang.   One of the elements of the subdivision (b) enhancement is that the crime was “committed for the benefit of, at the direction of, or in association with any criminal street gang․”  (Pen.Code, § 186.22, subd. (b)(1).)  “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the [enhancement] beyond a reasonable doubt.’ ”  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318–319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, emphasis in original.)

Evidence presented at trial disclosed that Fleming and Maurice were members of the “Familee Crips” gang and that Chany was an associate of that gang.   One of the primary activities of the “Familee Crips” gang is “street terrorism.”   This is a type of intimidation involving shooting at people and buildings to mark the gang's turf and show the gang's toughness.   Members of the “Familee Crips” gang wear the color blue.   Gang members generally only wear their gang colors when they are acting on “gang business.”   There is “major antagonism” between the “Familee Crips” gang and “Hispanic gangs which claim the color red.”   The word “slob” is a derogatory term used by Crips to refer to members of rival gangs.   The words “cuz” and “crip cuz” are used by Crips to identify themselves as Crips gang members.   Crips call each other “cuz” as “a term of endearment.”

This incident bore several distinctive characteristics of a crime committed for the benefit of a gang.   First, all of the perpetrators were associated with the “Familee Crips” gang.   Fleming and Maurice were members and Chany was an associate of the “Familee Crips” gang.   Second, all of the perpetrators wore blue, this gang's color, during the incident.   Because gang members generally wear their colors only when they are acting on “gang business,” their display of their colors indicated that this crime was being committed for the benefit of the “Familee Crips” gang.   Third, the targets of this crime were former members of an Hispanic gang which claimed the color red.   As the “Familee Crips” gang is very antagonistic towards Hispanic gangs claiming red, the identity of the victims also reflected a gang motivation for the offenses.   Fourth, the incident occurred at the residence of one of the victims near a center of “Familee Crips” gang activity.   Since one of the primary activities of the “Familee Crips” gang is “street terrorism” directed at establishing gang turf, the location of this incident raised an inference that it was intended to intimidate Hispanic gang members and identify this area as “Familee Crips” gang turf.   Fifth, the perpetrators used derogatory gang-oriented terms to refer to the victims and called each other “crip cuz” during the incident.   The use of gang references during the incident was another sign that the offenses were for the benefit of the gang.   The only apparent reason for the perpetrators to call the victims' attention to the fact that they were “crips” was to associate the crime with the gang and further the gang's purpose of establishing its turf.

Defendants discount the fact that they wore gang colors and used gang language during the incident and claim that “all that the evidence showed was that [Maurice] and Chany had personal motives against one or more of the alleged victims.”   While there was evidence that Maurice and Chany had scuffled with two of the victims in the past, there was no evidence that Fleming, the actual shooter, had any “personal” motive for his participation in this incident.   The jury had all of this evidence before it, but it concluded that this crime was committed for the benefit of the gang.   In view of the fact that the actual shooter had no personal motivation for his participation in this incident, and the crime was marked by a number of distinctive signs that it was committed for the benefit of the “Familee Crips” gang, we are convinced that the jury's findings that the subdivision (b) enhancements were true are supported by the evidence.

C. FLIGHT INSTRUCTION **

D. MULTIPLE COUNTS OF ASSAULT

 Defendants challenge the sufficiency of the evidence to support more than one count of assault with a firearm.  “A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act only where the act prohibited by the statute is centrally an ‘act of violence against the person.’ ”  (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 351, 211 Cal.Rptr. 742, 696 P.2d 134.)  “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”  (Pen.Code, § 240.)   Clearly assault is an act of violence against the person.   The next question is whether the evidence supported the jury's finding that Fleming's conduct was an act of violence against multiple victims.   To support an assault conviction, the prosecution must prove that “the defendant willfully committed an act that by its nature will probably and directly result in injury to another.”  (People v. Colantuono (1994) 7 Cal.4th 206, 214, 26 Cal.Rptr.2d 908, 865 P.2d 704.)   Fleming approached a group of five persons while pointing a loaded and operable rifle directly at them.   When Fleming grew near the group, some of them attempted to hide behind a vehicle.   Fleming fired the rifle towards them.   We believe that the jury could have rationally concluded that Fleming's conduct threatened violent injury to all five members of this group.   At any moment during his approach to this group, Fleming was in a position to fire the rifle numerous times resulting in violent injuries to some or all of the victims.   His present ability to do so at that time was demonstrated by the shots he did fire.   By pointing the rifle directly at this small group while approaching them, Fleming committed an act that by its nature was likely to result in injury to each of the members of this group.   Accordingly, there was sufficient evidence to support the jury's decision that defendants were liable for five counts of assault with a firearm.

CONCLUSION

Defendants' convictions under Penal Code section 186.22, subdivision (c) are hereby stricken.   The trial court is ordered to modify the judgment accordingly, file an amended abstract of judgment and send a certified copy of the abstract to the Department of Corrections.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   Subsequent statutory references are to the Penal Code unless otherwise specified, and subsequent unspecified references to subdivisions are to the subdivisions of Penal Code section 186.22.

2.   Juan thought Chany disliked him because Chany's cousin had been in a fight with another girl and Chany thought that this other girl was related to or friends with Juan.

3.   Raymond's friend Anthony understood defendants to be gang members because “crips wear blue.”

4.   There was evidence at trial that Fleming had admitted to a police officer that he was a member of the “Family Crip Gangsters.”

5.   “The flight of a person immediately after the commission of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be consider [sic ] by you in the light of all other proved facts in deciding the question of his guilt or innocence.   The weight to which such circumstance is entitled is a matter for the jury to determine.”

6.   The elements of a subdivision (a) offense do not mirror either the enhancement or the substantive offense described in subdivision (c).  The subdivision (a) offense requires “active” participation in the gang and “willful promotion, furtherance, or assistance ‘in any felonious criminal conduct by members of that gang.’ ”  (In re Lincoln J. (1990) 223 Cal.App.3d 322, 327, 272 Cal.Rptr. 852.)   The offense described in subdivision (c) did not require “felonious” conduct or “active” participation in a gang, nor did it require that the substantive conduct be a felony or that the perpetrator be an active participant in the gang but only that a felony or misdemeanor offense was committed “for the benefit of” the gang.   We note the differences only to explain why we cannot reduce defendants' convictions to violations of subdivision (a).   Not only is the subdivision (a) offense greater rather than lesser, its elements are substantially disparate from those in subdivision (c) so as to preclude the substitution of one for the other.

FOOTNOTE.   See footnote *, ante.

MIHARA, Associate Justice.

PREMO, Acting P.J., and ELIA, J., concur.