P. v. Thomspon

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Filed 11/10/10 P. v. Thompson CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDREW BRUCE THOMPSON III,
Defendant and Appellant.
C061568
(Super. Ct. No. SF108385A)
A jury found defendant Andrew Bruce Thompson III guilty of
second degree murder, unlawful possession of a handgun, unlawful
possession of ammunition, and active participation in a criminal
street gang (i.e., street terrorism), with various sentencing
enhancements, all in connection with the shooting death of his
girlfriend, Erica Orsino. Sentenced to an aggregate term of 68
years 8 months to life in prison, defendant appeals, contending:
(1) the trial court violated his constitutional right to
confront the witnesses against him by admitting a medical
examiner‟s testimony about an autopsy performed by another
examiner; (2) a police detective who testified for the

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prosecution committed Doyle1 error by repeatedly testifying about
defendant‟s request for an attorney; (3) the trial court erred
when it directed the jury to reconsider inconsistent verdicts on
two different firearm enhancements on the murder charge;
(4) there was insufficient evidence to support a gang
enhancement and the street terrorism charge; and (5) the trial
court erred in failing to stay the sentence for street terrorism
under Penal Code2 section 654.
We conclude the trial court did not violate defendant‟s
constitutional rights by admitting testimony about an autopsy by
a different medical examiner than the one who performed the
autopsy and did not err in sentencing defendant for street
terrorism. We also conclude there was no Doyle error and
defendant has not shown there was insufficient evidence to
support the street terrorism charge. We do find error, however,
in the trial court asking the jury to “take a second look at the
[enhancement] findings on [the murder charge],” because the jury
had found the firearm enhancement allegation under section
12022.53, subdivision (d) not true but the allegation under
section 12022.5, subdivision (a) true, and the court “wasn‟t
sure if that‟s what they intended.” This was error because the
trial court had no right or power to direct or suggest that the
1 Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91].
2 All further section references are to the Penal Code.

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jury reconsider its “not true” finding on the first firearm
enhancement.
Because of this error, we will reverse the finding on the
section 12022.53, subdivision (d) enhancement that the jurors
returned after the court told them to “take a second look” and
will remand the case for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
For our purposes, the underlying facts may be briefly
stated. On May 24, 2008, Orsino was shot to death in her
bedroom at her mother‟s house. At the time, defendant (her
boyfriend) was the only other person in the room. Defendant is
an admitted gang member.
The Charges
Defendant was first charged in the death of Orsino four
days later. Ultimately, an information charged him with murder.
The murder charge included an enhancement allegation under
subdivision (d) of section 12022.53, alleging defendant
intentionally and personally discharged a handgun in the
commission of the murder (the gun discharge enhancement). There
was also an enhancement allegation under subdivision (a) of
section 12022.5, alleging defendant personally used a firearm in
the commission of the murder (the gun use enhancement).
The information also charged defendant with being a felon
in possession of a handgun, a rifle, and ammunition. Defendant
was also charged with street terrorism and that charge included
a gun use enhancement allegation. The information also alleged
that defendant had a prior serious felony conviction and two

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prior prison terms. Early on in the trial, defendant admitted
the prior conviction and prior prison term allegations.
Dr. Omalu’s Testimony
At trial, Dr. Bennet Omalu, the chief medical examiner for
San Joaquin County, testified for the prosecution. After the
prosecution established his qualifications, the court determined
that Dr. Omalu qualified as an expert in forensic pathology.
Dr. Omalu then testified that “part of [his] job as chief
medical examiner is to review autopsies performed by other
doctors and then testify independently based on [his] experience
at a trial.”
Dr. Omalu reviewed the official records of the
autopsy of Orsino, including the autopsy photographs, the crime
scene photographs, and the clothes Orsino was wearing when she
was shot. He also reviewed the autopsy report prepared by
Dr. Pakdaman, who performed the autopsy of Orsino. From the
report, Dr. Omalu testified to the time of death and about
Dr. Pakdaman‟s examination of Orsino‟s body and clothing. From
autopsy photographs and Orsino‟s shirt, Dr. Omalu testified
about the entrance gunshot wound on Orsino‟s abdomen and to his
opinion that the gun was at least two feet away from Orsino when
the shot was fired. From another autopsy photograph showing the
exit wound and measurement information that was presumably from
the autopsy report, Dr. Omalu testified that the bullet went
essentially straight through the body.
With reference to a mannequin (and, again, presumably to
information from the autopsy report), Dr. Omalu then testified

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about the organs the bullet struck, the damage it caused --
particularly to the iliac artery -- and how that damage caused
arterial bleeding that led to Orsino‟s death. Further testimony
addressed the amount of internal bleeding, the absence of
additional injuries, and the likelihood that Orsino was lying on
the bed when she was shot. At no time did defendant object to
Dr. Omalu testifying because he did not perform the autopsy on
Orsino.
Detective Rodriguez’s Testimony
Stockton Police Detective Eduardo Rodriguez testified that
when defendant turned himself in to the police after the police
went to his parents‟ house, defendant had an injury on his upper
left arm. Detective Rodriguez further testified that he thought
he asked defendant if he wanted medical assistance, but
defendant “wouldn‟t say anything to [him].”
On cross-examination, Detective Rodriguez testified
defendant had a wound on his chest as well. As defense counsel
pursued the issue of medical care, the following exchange
occurred:
“Q. Now, I think you indicated that you offered some
medical care to the defendant, and you indicated he just didn‟t
answer your question about whether or not he wanted medical
care, or --
“A. It was kind of unusual, because whatever question we
asked him, I believe he said he wanted his lawyer.
“Q. Okay.

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“A. If we asked him for water, medical help, „I want my
lawyer.‟
“Q. Okay. And that was -- you asked him if he wanted to
see somebody to get some help for his wounds, and that‟s the
same answer he gave you?
“A. No matter what question we asked him, his response was
he wanted his lawyer.
“Q. Here is my question. Did he ask you to see a lawyer
prior to the time that he saw someone to get medical care for
his wounds?
“A. Well, a lawyer had brought him in, so I assume they
discussed it.
“Q. Well, I know. I‟m not interested in your assumptions.
Please listen to the question. Did he make that reply, I want
to talk to my lawyer, when you asked him about getting medical
care?
“A. I don‟t remember. I‟d have to refer back to the tape
for his response.
“Q. When you were talking to him about whether he wanted
medical care or not, was his lawyer present?
“A. No.
“Q. And just for the record, I was not the lawyer who was
with him at the time, is that correct?
“A. Correct.”
The trial court later instructed the jury as follows: “A
defendant has an absolute constitutional right not to make
statements to the police and request representation by an

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attorney. Do not consider, for any reason at all, the fact that
the defendant did not give a statement to the police and
requested representation by an attorney. Do not discuss that
fact during your deliberations or let it influence your decision
in any way.”
The Verdicts
The jury returned its verdicts on January 27, 2009, but
because the foreperson was not well, the trial court did not
unseal them until the morning of January 28. When it did so,
the court made the following statement: “Okay. [Jury
foreperson], I‟m going to have you folks go back into the jury
room. You have two verdict forms filled out on Count 1 [the
murder charge] that are inconsistent, okay, so I need you folks
to tell me what you meant, okay? Put those on top. And I’m
also going to ask you to take a second look at the findings on
Count 1. Okay. Send us a note when you are ready to come back
in.” (Italics added.)
The jury subsequently sent a note indicating “[t]he
corrections have been made for the required paperwork.” The
jury then returned a verdict of guilty of second degree murder,
with true findings on both the gun discharge enhancement and the
gun use enhancement on that charge. The jury found defendant
guilty of unlawfully possessing a handgun and ammunition, but
not guilty of unlawfully possessing a rifle. The jury also
found defendant guilty of street terrorism and found the gun use
enhancement allegation on that charge true.

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The New Trial Motion
Defendant moved for a new trial on the gun discharge
enhancement. Defense counsel asserted that on the original
guilty verdict form for the murder charge, the jury had found
the gun use enhancement true but found the gun discharge
enhancement not true. The new trial motion was supported by a
declaration that addressed discussions defense counsel and the
prosecutor had with the jurors after they were dismissed.
Defense counsel also related a subsequent conversation he had
with one of the jurors, who said that when the jurors returned
to the jury room they had not simply corrected the verdict form
but had taken an additional ballot on the murder charge before
changing the form.
The new trial motion was also supported by a memorandum of
points and authorities citing various statutes and cases
addressing the different elements of the two firearm
enhancements, the law on inconsistent verdicts and findings, and
the law on a court‟s influence on a jury verdict, but nowhere
did the moving papers actually include argument expressly
asserting why a new trial should be granted based on those
authorities.
The prosecutor opposed the motion. To the extent defendant
was arguing that the jury was entitled to find defendant guilty
of murder and find the gun use enhancement true but find the gun
discharge enhancement not true, the prosecutor argued “[t]his
would have been impossible” because “[t]he whole Defense
argument was that the gun discharged accidentally.”

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At the hearing on the new trial motion, defense counsel
filed a declaration from the jury foreperson, who asserted that
when the jurors returned to the jury room no further
deliberation occurred and no further ballots were taken
(contradicting the earlier statement by the other juror).
Defense counsel did not elaborate on the basis on which
defendant was seeking a new trial. The trial court then ruled
as follows: “The record should reflect, and I think I did not
do this after the jury was discharged, but to be clear, the
Court received the verdicts initially with the murder verdict
form properly executed indicating . . . the defendant was guilty
of murder with the degree being fixed as murder in the second
degree. [¶] At the same time, there was the verdict form for
not guilty for the entire count that was signed, which I clearly
explained to the jury verbally and visually on the Elmo was not
to be signed unless they found the defendant not guilty
completely; not guilty on the Count 1. That presented a[n]
inconsistency. [¶] The Court also noticed that the finding for
the [gun discharge] enhancement was marked not true, but the
[finding for the gun use enhancement] was marked true. I wasn‟t
sure if that‟s what they intended. So after telling them that
they needed to address the inconsistency, I told them just to
simply take a second look at the findings on Count 1. [¶] And,
apparently, from what I‟m given to understand was that the
foreperson went back and fixed the forms. It must have been
consistent with their thoughts, because I polled the jury, and
each juror agreed that that was their intended verdict and

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findings on each of the allegations on Count 1. So -- as well
as the other counts. So that‟s the record before the Court.
[¶] I‟m going to deny the motion for a new trial.”
Sentencing
The trial court sentenced defendant as follows: On the
murder charge, the court imposed a mandatory term of 15 years to
life in prison, doubled to 30 years for defendant‟s prior
conviction. The court imposed a consecutive term of 25 years to
life for the gun discharge enhancement and a middle term of four
years for the gun use enhancement, but the court stayed the
latter term under section 654.
On the remaining charges, the court selected the street
terrorism charge as the principal term and imposed the upper
term of three years, doubled to six for the prior conviction.
The court also imposed a consecutive four-year term for the gun
use enhancement on the street terrorism charge. The court
imposed consecutive terms of eight months (one-third the middle
term), doubled to 16 months for the prior conviction, on the
charges of unlawfully possessing a handgun and ammunition. The
court imposed two one-year sentences for the prior prison terms,
but stayed one of those sentences under section 654. The
aggregate prison term was 68 years 8 months to life. Defendant
timely appealed.

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DISCUSSION
I
The Medical Examiner’s Testimony Did Not Violate Defendant’s
Constitutional Right To Confront The Witnesses Against Him
On appeal, defendant asserts for the first time that “Dr.
Omalu‟s testimony on the basis of non-testifying autopsy
pathologist Dr. Pakdaman‟s report, findings, and conclusions
violated the Sixth Amendment Confrontation Clause.” We
disagree.
As an initial matter, the People contend defendant
forfeited this claim of error by failing to raise it in the
trial court. “It is, of course, „the general rule that
questions relating to the admissibility of evidence will not be
reviewed on appeal in the absence of a specific and timely
objection in the trial court on the ground sought to be urged on
appeal.‟” (People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7,
quoting People v. Rogers (1978) 21 Cal.3d 542, 548.)
Defendant contends the rule of forfeiture (or waiver) does
not apply because an objection to Dr. Omalu‟s testimony on
confrontation clause grounds would have been futile. According
to defendant, Dr. Omalu‟s testimony was admissible under a
California Supreme Court decision in effect when Dr. Omalu
testified -- People v. Geier (2007) 41 Cal.4th 555 -- and thus
an objection would have been futile, but a subsequent United
States Supreme Court decision -- Melendez-Diaz v. Massachusetts
(2009) 557 U.S. ___ [174 L.Ed.2d 314] -- now “directly

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contradicts the California Supreme Court‟s interpretation of the
federal [C]onstitution‟s Sixth Amendment Confrontation Clause.”
The futility cases defendant cites do not address
evidentiary objections, which, by statute, must be made in the
trial court or forfeited. (See Evid. Code, § 353 [“A verdict or
finding shall not be set aside, nor shall the judgment or
decision based thereon be reversed, by reason of the erroneous
admission of evidence unless: [¶] (a) There appears of record
an objection to or a motion to exclude or to strike the evidence
that was timely made and so stated as to make clear the specific
ground of the objection or motion”].) Moreover, as the People
point out, while the trial court may have been bound by Geier,
an objection in the trial court still would have “preserve[d]
[the issue] for ultimate federal review.”
Even if we can review defendant‟s confrontation clause
argument despite his failure to raise it in the trial court, for
the following reasons we find no merit in it.
In Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d
177], the United States Supreme Court held that under the Sixth
Amendment, which guarantees a criminal defendant “„the
right . . . to be confronted with the witnesses against him,‟”
an out-of-court statement that is “testimonial” in nature cannot
be admitted into evidence over the defendant‟s objection unless
the person who made the statement is unavailable to testify at
trial and the defendant had a prior opportunity for cross-
examination. (541 U.S. at pp. 42, 68-69 [158 L.Ed.2d at
pp. 187, 203].) The court declined “to spell out a

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comprehensive definition of „testimonial,‟” but stated that “it
applies at a minimum to prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and to
police interrogations.” (Id. at p. 68 [158 L.Ed.2d at p. 203].)
In Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d
224], which also included a second case, Hammon v. Indiana, the
court qualified the latter part of Crawford, holding that
“[s]tatements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency. They are
testimonial when the circumstances objectively indicate that
there is no such ongoing emergency, and that the primary purpose
of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.” (Id. at
p. 822 [165 L.Ed.2d at p. 237].) Based on this holding, the
court concluded the statement at issue in Davis was not
testimonial, but the statements at issue in Hammon were.
(Davis, at pp. 828-832 [165 L.Ed.2d at pp. 240-243].)
Justice Thomas concurred in the judgment in part and
dissented in part, agreeing with the conclusion about the
statement in Davis but disagreeing about the statement in
Hammon. (Davis v. Washington, supra, 547 U.S. at pp. 834, 842
[165 L.Ed.2d at pp. 244-245, 249].) According to Justice
Thomas, the standard the court adopted was “neither workable nor
a targeted attempt to reach the abuses forbidden by the
[Confrontation] Clause.” (Id. at p. 842 [165 L.Ed.2d at

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p. 249].) Drawing on his own concurrence in White v. Illinois
(1992) 502 U.S. 346, 365 [116 L.Ed.2d 848, 865], Justice Thomas
stated that “the plain terms of the „testimony‟ definition [the
court adopted in Crawford] necessarily require some degree of
solemnity before a statement can be deemed „testimonial,‟” and
“[t]his requirement of solemnity supports [his] view that the
statements regulated by the Confrontation Clause must include
„extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior
testimony, or confessions.‟” (Davis v. Washington, supra, 547
U.S. at p. 836 [165 L.Ed.2d at p. 246].)
In 2009, in Melendez-Diaz, the court faced the question of
whether “affidavits reporting the results of forensic analysis
which showed that material seized by the police and connected to
the defendant was cocaine . . . are „testimonial,‟ rendering the
affiants „witnesses‟ subject to the defendant‟s right of
confrontation under the Sixth Amendment.” (Melendez-Diaz v.
Massachusetts, supra, 557 U.S. at p. ___ [174 L.Ed.2d at
p. 319].) Led by Justice Scalia, four members of the court
concluded “[t]here is little doubt that the documents at issue
in this case fall within the „core class of testimonial
statements.‟” (Id. at p. ___ [174 L.Ed.2d at p. 321].) Another
four members disagreed, concluding “[l]aboratory analysts who
conduct routine scientific tests are not the kind of
conventional witnesses to whom the Confrontation Clause refers.”
(Id. at p. ___ [174 L.Ed.2d at p. 350], dis. opn. of Kennedy,
J.) Justice Thomas concurred with Justice Scalia‟s opinion, but

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wrote “separately to note that [he] continue[s] to adhere to
[his] position that „the Confrontation Clause is implicated by
extrajudicial statements only insofar as they are contained in
formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions.‟” (Id. at p. ___
[174 L.Ed.2d at p. 333].) He explained that he “join[ed] the
Court‟s opinion in this case because the documents at issue in
this case „are quite plainly affidavits,‟” and “[a]s such, they
„fall within the core class of testimonial statements‟ governed
by the Confrontation Clause.”3 (Ibid.)
With this understanding of the current state of the law in
mind, we turn to defendant‟s arguments. He contends that under
Melendez-Diaz, “when the States seeks [sic] to introduce
forensic analysis in the form of testimony regarding an autopsy
report, absent a showing that the analyst is unavailable to
testify at trial and that the defendant had a prior opportunity
to cross-examine the analyst, such evidence is inadmissible.”
We disagree.
In addressing this issue, it is important to emphasize that
Crawford and Melendez-Diaz address the issue of when an out-of-
3 The California Supreme Court has granted review in several
cases discussing the scope of Melendez-Diaz. (People v.
Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec.
2, 2009, S176213; People v. Dungo (2009) 176 Cal.App.4th 1388,
review granted Dec. 2, 2009, S176886; People v. Lopez (2009) 177
Cal.App.4th 202, review granted Dec. 2, 2009, S177046; People v.
Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2,
2009, S176620.)

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court statement that is “testimonial” in nature can be admitted
into evidence. Thus, the first step in any analysis under those
cases is to determine exactly what out-of-court statement was
admitted into evidence. Defendant skips that step here. While
he asserts “the admission of Dr. Omalu‟s testimony conveying
testimonial hearsay of non-testifying autopsy pathologist Dr.
Pakdaman violated the Sixth Amendment Confrontation Clause,” he
never identifies exactly what part or parts of Dr. Omalu‟s
testimony he contends “convey[ed] testimonial hearsay of . . .
Dr. Pakdaman.” For the sake of argument, however, we will
assume that defendant‟s confrontation clause objection applies
to every instance in which Dr. Omalu testified to statements of
Dr. Pakdaman contained in the autopsy report.4
Referencing a footnote in Justice Scalia‟s opinion
(Melendez-Diaz v. Massachusetts, supra, 557 U.S. at p. ___, fn.
5 [174 L.Ed.2d at p. 326, fn. 5]), defendant asserts that “the
United States Supreme Court in Melendez-Diaz specifically
referenced autopsy examinations as one kind of forensic analysis
that constitutes a testimonial statement to which the forensic
analyst is a witness and to which the Confrontation Clause
applies.” Even assuming this to be true, however, in
understanding the Supreme Court‟s holding in Melendez-Diaz it is
necessary to distinguish between the conclusions and
4 For example, Dr. Omalu testified that “in the autopsy
report [Dr. Pakdaman] documented he examined some articles of
clothing” and “described an article of clothing that exhibited
evidence of gunshot wounds on the body.”

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observations in Justice Scalia‟s opinion and the conclusions and
observations in Justice Thomas‟s opinion, because “[w]hen a
fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, „the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest
grounds . . . .‟” (Marks v. United States (1977) 430 U.S. 188,
193 [51 L.Ed.2d 260, 266].)
As we have explained, in his opinion, Justice Scalia
concluded “that the documents at issue in this case fall within
the „core class of testimonial statements.‟” (Melendez-Diaz v.
Massachusetts, supra, 557 U.S. at p. ___ [174 L.Ed.2d at p.
321].) The “documents at issue” were not simply forensic
laboratory reports, however, but “„certificates of analysis‟”
that “were sworn to before a notary public.” (Id. at p. ___
[174 L.Ed.2d at p. 320].) This was significant to Justice
Scalia‟s analysis because although the documents were
“denominated by Massachusetts law „certificates,‟ [they we]re
quite plainly affidavits: „declaration[s] of facts written down
and sworn to by the declarant before an officer authorized to
administer oaths,‟” and thus were “functionally identical to
live, in-court testimony, doing „precisely what a witness does
on direct examination.‟” (Id. at p. ___ [174 L.Ed.2d at p.
321].) This fact was also significant to Justice Thomas, who
concurred in Justice Scalia‟s opinion only because the
“certificates” were “„quite plainly affidavits,‟” and “[a]s
such, they „fall within the core class of testimonial

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statements‟ governed by the Confrontation Clause.” (Id. at p.
___ [174 L.Ed.2d at p. 333].)
Whatever broader ideas about what constitutes a
“testimonial” statement may be drawn from Justice Scalia‟s
opinion in Melendez-Diaz, under Marks the holding of the court
in Melendez-Diaz can be found in Justice Thomas‟s conclusion
that “„the Confrontation Clause is implicated by extrajudicial
statements only insofar as they are contained in formalized
testimonial materials, such as affidavits, depositions, prior
testimony, or confessions.‟” (Melendez-Diaz v. Massachusetts,
supra, 557 U.S. at p. ___ [174 L.Ed.2d at p. 333].)
Based on this understanding of Melendez-Diaz, the trial
court did not err in admitting Dr. Omalu‟s testimony regarding
statements made by Dr. Pakdaman in his autopsy report because
the autopsy report was not formalized testimonial material, like
an affidavit, deposition, prior testimony, or confession. Under
Government Code section 27491.4, subdivision (a) “[t]he detailed
medical findings resulting from an inspection of the body or
autopsy by an examining physician shall be either reduced to
writing or permanently preserved on recording discs or other
similar recording media, shall include all positive and negative
findings pertinent to establishing the cause of death in
accordance with medicolegal practice and this, along with the
written opinions and conclusions of the examining physician,
shall be included in the coroner‟s record of the death.” Thus,
the autopsy report is clearly a government record, but that does
not make it “formalized testimonial material,” as Justice Thomas

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employs that term. Accordingly, the statements contained in the
autopsy report here were not “testimonial” for purposes of the
confrontation clause, and the admission of Dr. Omalu‟s testimony
about those statements did not violate defendant‟s rights under
the Sixth Amendment.
II
Doyle Error
On appeal, defendant argues for the first time that “[i]t
was . . . improper for Detective Rodriguez to comment repeatedly
that [defendant] requested counsel in response to every question
posed to him post-arrest.” Defendant asserts that Detective
Rodriguez‟s testimony was “Doyle error” and “violate[d] the
Sixth Amendment right to counsel and the Fifth Amendment right
to Procedural Due Process.”
“Doyle v. Ohio . . . held that use, for impeachment
purposes, of a defendant‟s silence at the time of arrest and
after receipt of Miranda[5] warnings violates due process. An
express assertion of rights must also be beyond exploitation by
the prosecutor. Otherwise, „[i]t cuts down on the privilege
[against self-incrimination] by making its assertion costly‟
[citation]. Doyle, supra, is not limited to in-custody
situations, but is broadly interpreted to apply to any testimony
about a defendant‟s desire or request for counsel [citation].”
(People v. Fabert (1982) 127 Cal.App.3d 604, 609.)
5 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

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The People contend defendant forfeited his claim of Doyle
error by failing to object to Detective Rodriguez‟s testimony at
trial. Defendant asserts “[t]he decisional precedent is in
conflict on the question of whether this error is subject to
procedural default,” but he then asks us to “[c]ompare” five
California Supreme Court decisions, dating from 1988 to 2008, in
which that court found forfeiture, with two California Court of
Appeal decisions, dating from 1970 and 1984, in which those
courts found no forfeiture. Under Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455, we are bound by the
decisions of our Supreme Court, so for us there is no conflict
-- defendant‟s claim of Doyle error “was forfeited for appellate
purposes by the lack of a contemporaneous objection.” (People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 63.)
Even if we were to reach this forfeited argument, it has no
merit. Under Doyle, the prosecutor “is precluded from
commenting on the defendant‟s assertion of the right to
counsel.” (People v. Coffman and Marlow, supra, 34 Cal.4th at
p. 65.) Here, the prosecutor offered no such comment and did
not elicit the testimony of which defendant complains; that
testimony was elicited by defense counsel.
Defendant asserts that Doyle applies not only to the
prosecutor, but also to a “prosecution investigator,” but he
cites no authority for that proposition. All the cases he cites
involved comment or questioning by the prosecutor. Absent any
authority for the proposition that testimony by a police officer
about the defendant‟s assertion of the right to counsel,

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elicited without objection by defense counsel (whether
intentionally or not),6 violates the defendant‟s constitutional
rights, we conclude defendant has not shown Doyle error.
III
Change To The Firearm Discharge Enhancement Finding
Defendant contends the trial court erred and violated his
constitutional rights to due process and to a jury trial when it
“direct[ed] . . . the jurors to reconsider and remove the
inconsistency on the enhancement findings” on the murder charge.
We agree the trial court erred under state law.
Section 1161 specifically addresses the issue of when a
trial court may direct a jury to reconsider a verdict in a
criminal case. That statute permits a court to direct the jury
to reconsider “a verdict of conviction” under certain
circumstances, but provides that “when there is a verdict of
acquittal, the court cannot require the jury to reconsider it.”
The People are correct -- and defendant does not argue
otherwise -- in asserting that the trial court “properly asked
the jury to reconsider its inconsistent verdicts on the murder
charge.” When a jury presents verdict forms of both guilty and
not guilty on a particular count, the trial court may instruct
6 We accept defendant‟s argument that “Detective Rodriguez
surprised defense counsel” when the detective first mentioned
that defendant asked for his attorney when the police asked
defendant if he wanted medical care, but it is clear that rather
than objecting to and/or moving to strike the detective‟s
unexpected testimony, defense counsel instead chose to ask
further questions on the subject.

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the jury to resolve the inconsistency. (E.g., People v. Keating
(1981) 118 Cal.App.3d 172, 181-182.) In such a situation,
directing the jury to reconsider does not run afoul of
section 1161 because where there are two mutually exclusive
verdicts on a single charge, there is, in fact, no verdict --
neither of conviction nor of acquittal.
But where, as here, the inconsistency is not between two
verdict forms on a single count or enhancement, but between two
verdict forms on different counts and/or enhancements,
section 1161 is fully operative, and the trial court may not
direct the jury to reconsider a verdict of acquittal, even
though that verdict is inconsistent with another verdict the
jury has returned. “As a general rule, inherently inconsistent
verdicts are allowed to stand. [Citations.] For example, „if
an acquittal of one count is factually irreconcilable with a
conviction on another, or if a not true finding of an
enhancement allegation is inconsistent with a conviction of the
substantive offense, effect is given to both.‟” (People v.
Avila (2006) 38 Cal.4th 491, 600.)
People v. Guerra (2009) 176 Cal.App.4th 933 provides an
example of a case where the trial court erred in refusing to
accept inconsistent verdicts. There, “[a] jury convicted the
defendant . . . of sex crimes against his daughter and another
minor. The jurors initially found untrue five enhancement
allegations that multiple victims were involved. After the
trial court told the jurors that the verdicts were inconsistent
and that the jury might wish to „reconsider‟ them and „should‟

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23
find the allegations true if it found the predicate fact of
multiple victims true, the jury did reconsider the allegations
and found them true.” (Id. at p. 935.) The Court of Appeal
concluded that the trial court “invaded the jury‟s province” and
accordingly “reverse[d] the true findings on the enhancement
allegations . . . and remand[ed] the case for resentencing.”
(Ibid.)
The People contend Guerra is “inapposite” because here, “by
contrast, the record makes clear that the court did not tell the
jury to reconsider its verdicts with respect to the firearm
enhancement allegations.” According to the People, “the most
reasonable interpretation of the court‟s comments was merely
that the court was asking for the jury to make sure the forms
correctly reflected their intended verdicts.”
A closer comparison of what happened in Guerra and what
happened here does not support the distinction the People
attempt to draw between the two cases. In Guerra, the trial
court noted an apparent inconsistency between the verdict on one
of the substantive offenses (count eight) and the verdicts on
the enhancements on some of the offenses.7 (People v. Guerra,
supra, 176 Cal.App.4th at pp. 936-938.) The court told the
jury, “„It appears to the court that there may be an
7 Count eight involved a second victim and the enhancements
alleged multiple victims. The jury found the defendant guilty
of count eight (thus finding there were multiple victims) but,
inconsistently, found not true the multiple victim enhancement
allegations. (People v. Guerra, supra, 176 Cal.App.4th at
pp. 936-938.)

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24
inconsistency in the verdict,‟” and the court asked the
foreperson whether the court had “„misinterpreted either the
verdict with respect to count eight or the findings with respect
to the [enhancement] allegation[s].‟” (Id. at pp. 937-938.)
The foreperson responded, “I think we misunderstood how to fill
out the form. [¶] We did find guilty on all eight counts. As
to whether there was more than one victim, we thought that meant
that one specific charge, that one count.” (Id. at p. 938.)
After a discussion at sidebar with counsel, the court reread an
instruction to the jury; clarified that “„if in the case being
tried before you there is more than one victim that the
defendant has been convicted of sexually assaulting as charged,
that the answer to those [enhancement] allegation questions
should be true‟”; and then said, “„If, based upon this
clarification, the jury wishes to change its findings with
respect to one or more of those allegations, I‟ll give you the
opportunity to do so, and I‟m going to ask the bailiff to take
the verdict forms from me at this time and hand them back to the
foreperson of the jury. [¶] I will ask, would you like to go
back into the jury room to discuss that?” (Id. at pp. 939-940.)
The foreperson said, “„Yes, sir. We misunderstood,‟” and the
court responded, “„Very well. [¶] I‟ll excuse the jury in the
company of the bailiff to return to the jury deliberation room
to reconsider the findings on those allegations.” (Id. at
p. 940.) The jury then retired for a brief recess, after which
it returned verdicts finding the defendant guilty on all eight

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counts and the multiple-victim enhancement allegations all true.
(Ibid.)
At no time in Guerra did the trial court direct the jury to
reconsider its verdicts finding the enhancement allegations not
true; instead, the court invited the jury to do so by explaining
to the jury why the verdicts on the enhancement allegations were
inconsistent with the verdict on count eight and then asking the
jury if it wanted to reconsider the verdicts. Still, the Court
of Appeal concluded the trial court improperly invaded the
jury‟s province. As the appellate court explained, “Given the
formality of the setting of a superior court, over which the
trial judge presides in a commanding display of authority, and
in light of the jurors‟ respectful and deferential tone toward
the trial court as everyone discussed the inconsistent verdict,
it is possible to interpret the court‟s invitation to reconsider
the findings as something akin to an order from the jurors‟
perspective. Reviewing courts have acknowledged these legal and
sociological facts in stating that „“We presume that jurors
treat the court‟s instructions as a statement of the law by a
judge, and the prosecutor‟s comments as words spoken by an
advocate in an attempt to persuade.”‟ [Citation.] So it is no
surprise than [sic] when the court asked, „would you like to go
back into the jury room to discuss that?‟ the jury foreperson,
without, as far as this record discloses, asking any other juror
for an opinion, immediately replied, „Yes, sir. We
misunderstood.‟

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26
“To protect defendant‟s right under section 1161 that „when
there is a verdict of acquittal, the Court cannot require the
jury to reconsider it,‟ while also protecting defendant‟s right
under the same statute not to be convicted of molesting the
second victim if the jury had intended to find him not guilty on
that count, the trial court should have granted the prosecutor‟s
request to poll the jurors. (See § 1163.) If each answered
that the verdicts and findings reflected the juror‟s individual
verdicts and findings, then the court‟s task was complete under
section 1161--the jury had rendered inconsistent verdicts and
the court was required to accept and record all of them, thereby
satisfying the rule that „“if a not true finding of an
enhancement allegation is inconsistent with a conviction of the
substantive offense, effect is given to both.” [Citation.]‟
[Citation.]
“Instead, the trial court impermissibly invited the jury to
„reconsider‟ its not true findings and allowed the jurors to
deliberate anew. This was in excess of its authority; after the
jury returned not true findings as to the five enhancement
allegations, „the trial court could not resubmit [those]
matter[s] to the jury for further deliberation.‟” (People v.
Guerra, supra, 176 Cal.App.4th at pp. 943-944.)
Here, as in Guerra, the trial court did not direct the jury
to reconsider its verdicts on the two firearm enhancement
allegations. But the court invited the jury to reconsider its
verdicts on the enhancements when it “ask[ed the jury] to take a
second look at the [enhancement] findings on [the murder

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27
charge].” Asking a jury to “take a second look” at its verdicts
is no different than asking a jury if it “„would . . . like to
go back into the jury room to discuss‟” its verdicts. It may be
true that the trial court did not intend for the jury to
deliberate further on the enhancement allegations, but sent the
jury back only to confirm that the verdict forms reflected the
jury‟s actual verdicts because the court “wasn‟t sure if that‟s
what they intended.” But the proper way for the trial court to
have addressed that uncertainty was not to ask the jury to go
back into the jury room and “take a second look.” Instead, the
proper thing for the court to have done, as suggested by Guerra,
was to poll the jury. Indeed, section 1163 specifically
provides that “[w]hen a verdict is rendered, and before it is
recorded, the jury may be polled, at the request of either
party, in which case they must be severally asked whether it is
their verdict, and if anyone answer in the negative, the jury
must be sent out for further deliberation.” (Italics added.)
Thus, if upon polling the jury even one juror had indicated the
“not true” finding on the gun discharge enhancement was not his
or her verdict, the trial court would not just have had the
power to send the jury back to reconsider its verdicts, the
court would have had the obligation to do so. Absent such a
poll, however, the court had no power with respect to the jury‟s
“not true” finding on the gun discharge enhancement except to
accept and record it. The court could not tell the jury to
“take a second look at” the verdict, and by doing so the court
erred. The remedy for that error is to reverse the true finding

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on the gun discharge enhancement and remand the case to the
trial court to resentence defendant on the gun use enhancement
instead. (See People v. Guerra, supra, 176 Cal.App.4th at
p. 944.)
IV
The Street Terrorism Count
Defendant contends “[t]he prosecution proceeded primarily
upon a theory that [defendant] killed [Orsino], because she told
him that she was breaking up with him,” and therefore “the gang
enhancement finding and gang count are not supported by
substantial evidence.” As the People point out, however,
defendant was not charged with a “gang enhancement.” As for the
“gang count” -- i.e., the charge of street terrorism -- it turns
out defendant does not offer any argument directed at the
elements of that crime.
Under subdivision (a) of section 186.22, a person “who
actively participates in any criminal street gang with knowledge
that its members engage in or have engaged in a pattern of
criminal gang activity, and who willfully promotes, furthers, or
assists in any felonious criminal conduct by members of that
gang” is guilty of the crime sometimes called street terrorism.
Subdivision (b) of that statute provides a separate criminal
street gang sentence enhancement for “any person who is
convicted of a felony 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.”

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Here, defendant‟s sufficiency of the evidence argument is
directed -- or rather, misdirected -- at the elements of the
criminal street gang enhancement, which was not charged here.
First, he argues that “[t]he record fails to contain substantial
evidence that the homicide was committed for the benefit [of],
at the direction of, or in association with a criminal street
gang.” Second, he argues that “[t]he record is lacking in
evidence that, if the homicide was intentional, [defendant]
killed [Orsino] with the specific intent to advance other
criminal conduct by gang members.” Then he contends that “[f]or
the reasons discussed in this argument, the gang enhancement and
gang count are not supported by substantial evidence and must be
reversed.”
In a criminal case, “to prevail on a sufficiency of the
evidence argument, the defendant must . . . set forth in his
opening brief all of the material evidence on the disputed
elements of the crime in the light most favorable to the People,
and then must persuade us that evidence cannot reasonably
support the jury‟s verdict.” (People v. Sanghera (2006) 139
Cal.App.4th 1567, 1574, second italics added.) Obviously, a
defendant cannot carry this burden of persuasion if he fails to
address any of the elements of the crime at issue, let alone the
disputed elements of that crime. Such is the case here.
Because defendant‟s sufficiency of the evidence argument
addresses only elements of the criminal street gang sentence
enhancement that was not charged here and does not address any
of the elements of the crime of street terrorism that was

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charged,8 defendant has not carried his burden of persuading us
the evidence was insufficient to support his conviction for that
crime.
V
Section 654
Defendant contends his sentence for street terrorism must
be stayed under section 654 because this charge and the murder
charge were based on the same act. We disagree.
In pertinent part, subdivision (a) of section 654 provides
that “[a]n 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.”
“Because of the many differing circumstances wherein
criminal conduct involving multiple violations may be deemed to
arise out of an „act or omission,‟ there can be no universal
construction which directs the proper application of section 654
in every instance.” (People v. Beamon (1973) 8 Cal.3d 625,
636.) Nevertheless, our Supreme Court has set forth some basic
principles for applying the statute.
In Neal v. State of California (1960) 55 Cal.2d 11, the
court explained “„[i]t is the singleness of the act and not of
8 For example, defendant does not argue there was
insufficient evidence that he “willfully promote[d],
further[ed], or assist[ed] in any felonious criminal conduct by
members of that gang.”

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31
the offense that is determinative.‟ Thus the act of placing a
bomb into an automobile to kill the owner may form the basis for
a conviction of attempted murder, or assault with intent to
kill, or malicious use of explosives. Insofar as only a single
act is charged as the basis for the conviction, however, the
defendant can be punished only once.” (Id. at p. 19.)
But our Supreme Court has also explained that “section 654
refers not to any physical act or omission which might perchance
be common to all of a defendant‟s violations, but to a
defendant‟s criminal acts or omissions.” (In re Hayes (1969) 70
Cal.2d 604, 607.) “The proper approach, therefore, is to
isolate the various criminal acts involved, and then to examine
only those acts for identity.” (Ibid.)
In Hayes, a majority of our Supreme Court concluded that a
defendant who “drove a motor vehicle for some 13 blocks” while
under the influence of intoxicating liquor and with knowledge
that his driver‟s license was suspended engaged simultaneously
in two distinct criminal acts -- “driving with a suspended
license and driving while intoxicated” -- and could be punished
for both, even though both criminal acts had in common the
noncriminal act of “driving.” (In re Hayes, supra, 70 Cal.2d at
pp. 605, 607-608.) Thus, even in a case in which two offenses
are based on the same physical act, section 654 may not prohibit
punishing the defendant for both offenses. The pertinent
question is whether both offenses are based on the same criminal
act.

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To complicate matters further, even when more than one
criminal act is shown, section 654 still may bar multiple
punishment in some circumstances. This is so because
“„[s]ection 654 has been applied not only where there was but
one “act” in the ordinary sense . . . but also where a course of
conduct violated more than one statute and the problem was
whether it comprised a divisible transaction which could be
punished under more than one statute within the meaning of
section 654.‟ [Citation.] [¶] Whether a course of criminal
conduct is divisible and therefore gives rise to more than one
act within the meaning of section 654 depends on the intent and
objective of the actor. If all of the offenses were incident to
one objective, the defendant may be punished for any one of such
offenses but not for more than one.” (Neal v. State of
California, supra, 55 Cal.2d at p. 19.) And “[j]ust as it is
the criminal „act or omission‟ to which section 654 refers, it
is the criminal „intent and objective‟” to which Neal refers.
(In re Hayes, supra, 70 Cal.2d at p. 610.)
With these principles in mind, we turn back to the present
case. As we have explained, under subdivision (a) of
section 186.22, it is a crime to actively participate in a
criminal street gang with knowledge that the gang‟s members
engage in or have engaged in a pattern of criminal gang
activity, and to willfully promote, further, or assist in any
felonious criminal conduct by members of the gang. Here, in
pretrial discussions between the court and counsel, the
prosecutor made it “clear” that with respect to the charge of

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street terrorism, “the felonious conduct [defendant] engaged in
was the homicide itself.” Shortly thereafter, the prosecutor
reiterated, “In order to prove the [street terrorism charge] I
have to prove that the defendant did something felonious.
[¶] . . . [¶] Here it‟s the murder. . . . [¶] . . . [¶] . . .
The felonious conduct is the murder.”9
Consistent with this approach, in closing argument the
prosecutor asserted defendant “promoted the gang[‟]s conduct by
not letting [Orsino] disrespect him, nor the gang. How so?
Because on the night of May 24th, 2008, when [Orsino] was going
to break up with the defendant, he shot and killed her. Because
had [she] broken up with [him] the day after they did all those
shootings, the day after all that happened,[10] he not only would
have been disrespected because his girlfriend dumped him, but
the gang would have been worried, who is she going to tell? He
promoted their conduct by getting rid of witnesses. Snitches,
as he calls them. During the commission of [the crime of street
terrorism], we know he was armed with a firearm . . . . He did
9 Even though the statute refers to “promot[ing],
further[ing], or assist[ing] in any felonious criminal conduct
by members of th[e] gang,” courts have concluded that the crime
of street terrorism applies to the person who actually
perpetrates the felonious gang-related criminal conduct as well
as to a person who only promotes, furthers, or assists in that
conduct. (E.g., People v. Ngoun (2001) 88 Cal.App.4th 432,
436.) Defendant does not argue otherwise here.
10 The prosecution presented evidence of an incident the night
before Orsino was killed in which Orsino supposedly saw
defendant and his compatriots harm a person.

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34
personally discharge it when he shot [Orsino], and he intended
to do that.”
Thus it is clear the charges of murder and street terrorism
were based on the very same physical act -- the shooting of
Orsino. Under the authorities discussed above, however, that
does not resolve the question of whether section 654 applies
here, because, as we have seen, a single physical act may
nonetheless constitute two distinct criminal acts for purposes
of section 654. And if the shooting of Orsino can be deemed to
constitute two distinct criminal acts, then the application of
section 654 depends on whether defendant can be deemed to have
entertained two distinct criminal objectives in committing those
acts.
Skipping over the question of whether the shooting of
Orsino constituted two distinct criminal acts, the People argue
that punishment for both murder and street terrorism was proper
here because “the two offenses involve[d] different objectives.”
According to the People, defendant “had the personal objective
of killing the woman who had broken up with him and threatened
to abort his child. However, he also had an objective to
participate in a criminal street gang by eliminating a witness
to the criminal activities of his gang, spreading the fear of
his gang and avenging a perceived act of „disrespect‟ shown by
the victim.”
Defendant suggests the two objectives the People identify
are not distinct for purposes of applying section 654. In his
view, “[a]ccording to the prosecution‟s gang expert, the killing

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35
was committed to silence a potential witness and to retaliate
for disrespect pursuant to gang culture tenets.” Thus, what the
People characterize as “the personal objective of killing the
woman who had broken up with him and threatened to abort his
child,” defendant characterizes as the gang-related objective of
“retaliat[ing] for disrespect.” In defendant‟s view, because
“the underlying crime [murder] was not independent of the gang
allegations, section 654 applies to preclude separate punishment
for the gang crime.”
We do not find that either party‟s parsing of defendant‟s
supposed “objectives” in shooting Orsino provides a satisfactory
basis for deciding whether the trial court properly (albeit
implicitly) determined that section 654 did not apply here.
Consequently, we turn to some of the cases in which the
appellate courts have dealt with the application of section 654
to a conviction for street terrorism and one or more other
offenses to see what assistance those decisions provide.
In People v. Herrera (1999) 70 Cal.App.4th 1456, the
defendant personally used a firearm in a gang-related drive-by
shooting and was convicted of (among other things) two counts of
attempted murder and one count of street terrorism. (Id. at
pp. 1460-1462.) On appeal, Division Three of the Fourth
Appellate District concluded defendant could be separately
punished for street terrorism and attempted murder based on the
following analysis:
“The characteristics of attempted murder and street
terrorism are distinguishable, even though aspects of one may be

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36
similar to those of the other. In the attempted murders,
Herrera‟s objective was simply a desire to kill. For these
convictions, the identities (or gang affiliations) of his
intended victims were irrelevant. The fact he repeatedly shot a
gun on two separate occasions--the interval between the two
being brief but distinct--striking cars, occupied apartments and
bystanders, is sufficient to establish the specific intent to
kill required for both counts of attempted murder. [Citations.]
“In contrast, section 186.22, subdivision (a), encompasses
a more complex intent and objective. It is part of the Street
Terrorism Enforcement and Prevention Act which was enacted by
emergency legislation in 1988. [Citations.] The Legislature
passed these criminal penalties and strong economic sanctions as
a response to the increasing violence of street gang members
throughout the state. Previously, there was no existing law
that made the punishment for crimes by a gang member separate
and distinct from that of the underlying crimes. [Citation.]
“Section 186.22, subdivision (a) punishes active gang
participation where the defendant promotes or assists in
felonious conduct by the gang. It is a substantive offense
whose gravamen is the participation in the gang itself. Hence,
under section 186.22, subdivision (a) the defendant must
necessarily have the intent and objective to actively
participate in a criminal street gang. However, he does not
need to have the intent to personally commit the particular
felony (e.g., murder, robbery or assault) because the focus of
the street terrorism statute is upon the defendant‟s objective

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37
to promote, further or assist the gang in its felonious conduct,
irrespective of who actually commits the offense. For example,
this subdivision would allow convictions against both the person
who pulls the trigger in a drive-by murder and the gang member
who later conceals the weapon, even though the latter member
never had the specific intent to kill. Hence, section 186.22,
subdivision (a) requires a separate intent and objective from
the underlying felony committed on behalf of the gang. The
perpetrator of the underlying crime may thus possess „two
independent, even if simultaneous, objectives[,]‟ thereby
precluding application of section 654. [Citation.]
“Herrera‟s active participation in [his gang‟s] „payback‟
against [a rival gang] falls squarely within the provisions of
section 186.22, subdivision (a), street terrorism. It requires
the defendant to actively participate in a criminal street gang,
have knowledge that its members engage in criminal activity, and
have the intent and objective to further the gang‟s felonious
conduct. (§ 186.22, subd. (a).) Independent of that, Herrera
had the simultaneous although separate objective to actively
participate in and promote his gang when he attempted to murder
[the rival] gang members. Herrera‟s membership in [his gang]
was well established at trial, including expert testimony
regarding what such a membership entailed. Herrera testified he
got into the Mustang to „back up‟ or support the gang. He had
told his girlfriend that his gang was going to retaliate against
[the rival gang]. The gang experts explained that gang warfare
uniformly involved guns. The evidence supports the finding that

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38
Herrera intended to aid his gang in felonious conduct,
irrespective of his independent objective to murder.
“Finally, if section 654 were held applicable here, it
would render section 186.22, subdivision (a) a nullity whenever
a gang member was convicted of the substantive crime committed
in furtherance of the gang. „[T]he purpose of section 654 “is
to insure that a defendant‟s punishment will be commensurate
with his culpability.” [Citation.]‟ [Citation.] We do not
believe the Legislature intended to exempt the most culpable
parties from the punishment under the street terrorism
statutes.” (People v. Herrera, supra, 70 Cal.App.4th at
pp. 1466-1468, fns. omitted.)
In People v. Ferraez (2003) 112 Cal.App.4th 925, the
defendant was convicted of possessing cocaine base for sale and
street terrorism on the theory he was selling the rock cocaine
for the criminal street gang to which he belonged. (Id. at
pp. 927-929.) On appeal, another panel from Division Three of
the Fourth Appellate District followed Herrera and concluded
that “the trial court was not required to stay defendant‟s
sentence for the gang crime” because “defendant possessed the
drugs with the intent to sell, and he also intended to commit
that felony to promote or assist the gang. While he may have
pursued both objectives simultaneously, they were nonetheless
independent of each other.” (Id. at p. 935.)
In People v. Vu (2006) 143 Cal.App.4th 1009, the defendant
was convicted of conspiracy to commit murder and street
terrorism for a gang-related revenge shooting. (Id. at

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39
pp. 1012-1013.) On appeal, another panel of Division Three of
the Fourth Appellate District concluded the sentence for street
terrorism should have been stayed under section 654 because “the
acts of conspiracy and street terrorism constituted a criminal
course of conduct with a single intent and objective. That
single criminal intent or objective was to avenge [a fellow gang
member‟s] killing by conspiring to commit murder. Although that
intent or objective could be parsed further into intent to
promote the gang and intent to kill, those intents were not
independent. Each intent was dependent on, and incident to, the
other.” (Id. at p. 1034.)
Rather than disagree with Herrera and Ferraez, the Vu court
claimed those cases were distinguishable. (People v. Vu, supra,
143 Cal.App.4th at p. 1034.) The court claimed Herrera was
distinguishable “because the defendant was charged with a course
of criminal conduct involving two gang-related, drive-by
shootings in which two people were injured,” and Ferraez was
distinguishable “because under the facts of that case, the trial
court could have found independent objectives.” (Vu, at
p. 1034.)
In People v. Garcia (2007) 153 Cal.App.4th 1499, the
defendant was convicted of carrying a loaded unregistered
firearm in public and street terrorism on the theory that he was
carrying the firearm for the benefit of a criminal street gang.
(Id. at p. 1502.) On appeal, another panel of Division Three of
the Fourth Appellate District, without mentioning Vu, followed
Herrera and Ferraez and determined that defendant could be

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40
punished for both crimes because he “knew he was in possession
of a firearm in public, and intended to commit that crime to
promote or assist the gang. While he might have pursued these
objectives simultaneously, they were independent of each other.”
(Id. at p. 1514, fn. omitted.)
In People v. Sanchez (2009) 179 Cal.App.4th 1297, the
defendant was convicted of robbery and gang participation
(street terrorism). (Id. at p. 1301.) On appeal, Division Two
of the Fourth Appellate District concluded that “section 654
precludes multiple punishment for both (1) gang participation,
one element of which requires that the defendant have „willfully
promote[d], further[ed], or assist[ed] in any felonious criminal
conduct by members of th[e] gang,” and “(2) the underlying
felony that is used to satisfy this element of gang
participation.” (Sanchez, at p. 1301.) In reaching this
conclusion, the court considered both Herrera and Vu at some
length. (Sanchez, at pp. 1310-1313.) The court noted that
“Vu‟s effort to distinguish Herrera was less than satisfying”
and concluded that “Herrera simply cannot be reconciled with
Vu.” (Sanchez, at pp. 1312-1313.) Then, after discussing “a
number of problems” the court found with Herrera, the Sanchez
court explained why section 654 barred separate punishment for
gang participation in the case before it:
“Here, the underlying robberies were the act that
transformed mere gang membership--which, by itself, is not a
crime--into the crime of gang participation. Accordingly, it
makes no sense to say that defendant had a different intent and

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41
objective in committing the crime of gang participation than he
did in committing the robberies. . . .
“In our view, the crucial point is that, here, as in
Herrera and Vu, the defendant stands convicted of both (1) a
crime that requires, as one of its elements, the intentional
commission of an underlying offense, and (2) the underlying
offense itself.” (People v. Sanchez, supra, 179 Cal.App.4th at
p. 1315.)
The Sanchez court concluded that “the robberies--even if
not gang motivated--were necessary to satisfy an element of the
gang participation charge. . . . Accordingly, almost by
definition, defendant had to have the same intent and objective
in committing all of these crimes.”11 (People v. Sanchez, supra,
179 Cal.App.4th at p. 1316.)
The foregoing cases do not reveal a consistent line of
reasoning for applying section 654 to cases, like the present
one, where the defendant is convicted both of street terrorism
and another felony, where the other felony is the “felonious
criminal conduct” of the gang that is used to establish the
11 Sanchez involved the anomalous situation where the jury
found gang enhancement allegations on the robbery counts not
true (People v. Sanchez, supra, 179 Cal.App.4th at p. 1301) --
thus finding the defendant did not commit the robberies for the
benefit of, at the direction of, or in association with the gang
-- but nonetheless found the defendant guilty of gang
participation apparently on the theory that the felonious
criminal conduct of the gang that he promoted and furthered was
the very robberies he committed (id. at pp. 1305-1308).

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charge of street terrorism.12 Defendant argues that “[t]his case
falls within the Vu rationale,” while the People contend “[t]his
case is closer factually to Herrera than it is to Vu.” For the
reasons that follow, we believe the result reached in Herrera
and its progeny is the correct one here.
The first question under section 654 is whether the two
offenses involved the same criminal act or distinct criminal
acts. We believe that, as a general matter, when the two
offenses are a charge of street terrorism that is based on an
underlying felony committed by the defendant and that underlying
felony, two distinct criminal acts are involved. This is so
because the charge of street terrorism is not based only on the
underlying felony that serves as the “felonious criminal
conduct” the statute requires, but is also based on the
defendant‟s “active[] participat[ion] in [the] criminal street
gang with knowledge that its members engage in or have engaged
in a pattern of criminal gang activity.” (§ 186.22, subd. (a).)
Indeed, as the Herrera court observed, participation in the gang
is the gravamen of the crime of street terrorism. (People v.
Herrera, supra, 70 Cal.App.4th at p. 1467.)
Under this reasoning, the murder charge was based on a
criminal act distinct from the street terrorism charge, even
though both offenses had in common the shooting of Orsino. It
12 This issue is now before our Supreme Court in People v.
Mesa (2010) 186 Cal.App.4th 773, review granted October 27,
2010, S185688.

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does not necessarily follow from that conclusion, however, that
defendant can be punished separately for both acts, because we
must still examine his criminal “intent and objective” under
Neal.
In Neal, the defendant was convicted “of one count of arson
and two counts of attempted murder [based] upon [his] act of
throwing gasoline into the bedroom of [a married couple] and
igniting it.” (Neal v. State of California, supra, 55 Cal.2d at
p. 18.) In concluding that the defendant could not be
separately punished for arson, the Supreme Court wrote as
follows:
“If all of the offenses were incident to one objective, the
defendant may be punished for any one of such offenses but not
for more than one. [¶] . . . [¶] In the instant case the
arson was the means of perpetrating the crime of attempted
murder . . . . [Separate punishment for the arson]
violated . . . section 654, since the arson was merely
incidental to the primary objective of killing [the couple].”
(Neal v. State of California, supra, 55 Cal.2d at pp. 19-20.)
In effect, the court in Neal concluded the defendant had
only one criminal objective -- murdering the couple. Because
the crime of arson was merely the means by which the defendant
sought to accomplish that single objective, the defendant could
not be punished for both attempted murder and arson under
section 654.

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We do not believe the reasoning from Neal compels the
conclusion here that defendant can be punished only for the
murder of Orsino and not for the crime of street terrorism as
well. Unlike in Neal, where the arson was merely “the means of
perpetrating the crime of attempted murder,” here one crime was
not merely the means of perpetrating the other. On this point,
it is important to emphasize that street terrorism requires not
only the commission of “felonious criminal conduct by members of
[a] gang,” but also “active[] participat[ion] in [the] gang”
separate and apart from that felonious conduct. (See People v.
Castenada (2000) 23 Cal.4th 743, 752 [describing “section
186.22(a)‟s plainly worded requirements” as “criminal knowledge,
willful promotion of a felony, and active participation in a
criminal street gang”].) Thus, while the murder of Orsino was
part of the street terrorism crime, the two crimes were not
coextensive, and thus the murder was not simply the means by
which defendant committed street terrorism, as the arson was the
means by which the defendant committed attempted murder in Neal.
Under this circumstance, the trial court was not bound to
conclude both crimes involved only a single objective, such that
only one punishment could be imposed for both crimes.
Accordingly, the trial court did not err in failing to stay
the sentence on the street terrorism charge pursuant to
section 654.

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DISPOSITION
The true finding on the gun discharge enhancement under
Penal Code section 12022.53, subdivision (d) is reversed, but
the judgment of conviction is otherwise affirmed. The case is
remanded for resentencing consistent with this opinion.
ROBIE , J.
We concur:
RAYE , Acting P. J.
CANTIL-SAKAUYE , J.

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