PEOPLE v. FLORES

No. B220564.

THE PEOPLE, Plaintiff and Respondent, v. CESAREO FLORES, Defendant and Appellant.

Court of Appeals of California, Second District, Division Five.


Attorney(s) appearing for the Case

Nancy Mazza , under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr. , Attorney General, Dane R. Gillette , Chief Assistant Attorney General, Pamela C. Hamanaka , Senior Assistant Attorney General, Linda C. Johnson and Michael A. Katz , Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

Defendant and appellant Cesareo Flores was convicted by a jury of premeditated attempted murder in violation of Penal Code1 sections 664 and 187. Additionally, the jury found that appellant committed the crime for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b); that he committed a hate crime in concert with another person within the meaning of section 422.75, subdivision (b); and that he personally used a firearm, personally and intentionally discharged it, and thereby caused great bodily injury, within the meaning of section 12022.53, subdivisions (b), (c), and (d), respectively. Appellant was sentenced to prison for a term of 37 years to life. He timely appealed his conviction.

FACTUAL AND PROCEDURAL BACKGROUND2

On May 13, 2008, the victim, Saquan Mensah, left his high school campus accompanied by his friends Marquise Murphy and Ronnie Burnett; the three, all African-Americans, walked to the bus stop near the corner of Santa Fe Avenue and Pacific Coast Highway in Long Beach, next to a gas station. A group of people of different races but predominately African-American was congregated at the site, waiting for buses. As Mensah and his friends arrived at the bus stop, a group of three Hispanic males approached them, addressing them with gang taunts: "Fuck Crabs" (a derogatory reference to the Crips gang) and "fuck Slobs" (a derogatory term for the Bloods gang). Neither taunt produced a reaction. One of the Hispanics then said "fuck niggers." Mensah asked one of the Hispanic males if he wanted to fight, and that person agreed. The Hispanics started walking to the back of the gas station, and Mensah, Murphy, Burnett and as many as a dozen other youths followed them. Mensah expected to engage in a one-on-one fist fight with the person who taunted him. Instead, appellant pulled a gun out of his waistband and fired three to six shots. Before running off, appellant yelled "Eastside Longo," the name of his gang.

Two bullets hit Mensah, one in the chest, and the other in the hip as he was retreating. Mensah spent over three weeks in the hospital recuperating from his wounds.

Both the prosecution and defense presented expert testimony relevant to the gang enhancement allegation.

Although appellant did not testify at trial, his statements to police were admitted into evidence. According to the detective who interviewed him, appellant gave "three different versions of what happened." The first was an alibi — appellant said he was in Bakersfield with his uncle. When the detective told appellant that two witnesses had identified him as the shooter, appellant said, "Okay. I'll tell you again what I was doing." Appellant reported that he went to a store in Long Beach with Michael Ramirez and then went home. He learned of the shooting a couple of days later, when he read about it in the newspaper. The detective again challenged the veracity of appellant's story. This time, appellant said that he had gotten on the bus to meet a girl at Long Beach Boulevard and PCH. The girl did not show up, so he decided to walk to Santa Fe Avenue and PCH. When he arrived there, he saw a group of male Hispanics and a group of male Blacks getting ready to fight, and "took off running." He then entered a fast food restaurant, heard gunshots, and went home. Appellant also told the detective that he is a member of the Playboys clique of the Eastside Longo Gang.

At trial, five witnesses, including the victim Mensah, identified appellant as the shooter. Although there were minor discrepancies in the testimony of the various witnesses, such as their descriptions of the shooter's clothing and the number of shots fired, each of the witnesses gave a substantially similar account of what transpired.

The gas station's video footage of the crime was admitted into evidence. The quality of the video was not such that the individuals could be identified. The video did, however, indicate that shortly before the first shot was fired, one of the African-American onlookers lifted his arm and pointed at something. The victim's friend, Burnett, identified himself as "the pointer" in the video, and testified that he was pointing at appellant in response to seeing appellant's gun. The defense sought to establish that the shooter fired the gun in response to being threatened; that is to say, appellant wished to argue (without admitting that he was present at the crime scene) that he and his two companions were greatly outnumbered by the dozen or so youths who were following the group to the back of the gas station; that he assumed that his adversaries were gang members, and that gang members typically carry weapons; so that when he saw one of his adversaries lift his arm and point at him, he believed that his life was in danger. Appellant sought, but was refused, instructions on voluntary manslaughter based on imperfect self-defense and a sudden quarrel or heat of passion.

A defense witness, David Peraleta, testified that, contrary to the testimony of Mensah and his friends, Mensah had stated to Peraleta that he was a member of the Bloods, and that Mensah and his friends had attacked Peraleta the day before the shooting. The defense sought to introduce evidence to demonstrate the victim's proclivity to fighting and violence, and to impeach the victim based on his arrest, after the shooting, on robbery charges. The trial court ruled that this evidence was irrelevant and/or inadmissible under Evidence Code section 352.

DISCUSSION

Appellant maintains that the trial court erred in its evidentiary rulings, in refusing a jury instruction on the lesser included offense of attempted voluntary manslaughter, and in the sentence it imposed. He also maintains that there is insufficient evidence to support the hate crime enhancement. We consider each of these contentions below.

1. Evidentiary rulings and instructional error

Appellant challenges the trial court's rulings excluding evidence which he claims was relevant to Mensah's credibility and violent nature, as well as jury instructions on the lesser offense of voluntary manslaughter based on imperfect self-defense and heat of passion.

Prior to commencement of the trial, the People presented to defense counsel the information that Mensah had recently been arrested for robbery, and was then in custody on that charge. The circumstances of the arrest would, according to appellant, reveal that Mensah and others "attacked a helpless victim on a train and robbed him. The victim of the assault and robbery was a Hispanic." Appellant wished to present this evidence to the jury in order to impeach Mensah's credibility, and to argue that appellant acted in self-defense based upon a reasonable or unreasonable fear of Mensah due to his prior acts of violence. Defense counsel sought a pretrial ruling allowing him to inquire of Mensah about this incident. At this point in time, defense counsel had not yet determined whether appellant would testify or whether he intended to argue that appellant was acting in self-defense. After noting that a ruling was being requested in an evidentiary vacuum, the trial court tentatively ruled that no questions regarding the arrest and robbery would be permitted unless and until it was established that those matters were relevant to the defense's case.

a. Impeachment evidence

Defense counsel wished to establish that Mensah's testimony was not truthful in several respects: Contrary to Mensah's testimony that he was not a gang member and had arranged a fair fight on the day prior to the shooting, witness David Peraleta was prepared to testify that Mensah and two of his friends approached him the day before the shooting and challenged him to a fight. It was agreed that they would take the bus to a specific location to fight. However, Peraleta said that Mensah called about 15 to 20 others to meet them at the bus stop, where they jumped Peraleta and beat him, a decidedly "unfair fight." Appellant also proposed to call Mensah's high school principal to corroborate Peraleta's version of these events.3 According to appellant, this evidence would establish that Mensah lied when he testified that he had been in a "fair fight" the day before he was shot.

Defense counsel also sought to impeach Mensah's credibility by introducing evidence of his arrest, shortly before the trial, for robbery. The court refused the request, noting that Mensah had not been convicted and was contesting the charge; thus the fact of his arrest was not proper impeachment evidence. Appellant challenges this ruling as error: "The conduct would have permitted the jurors to infer [Mensah] was a person willing to lie. The trial court was simply wrong when it excluded the recent arrest information because there was no conviction."

All relevant evidence is admissible in a criminal trial in the trial court's discretion, except as limited by certain evidentiary rules such as privilege and hearsay. (People v. Wheeler (1992) 4 Cal.4th 284, 293.) Before 1982, "felony convictions were the only conduct evidence admissible for impeachment." (Ibid.) In People v. Wheeler, the California Supreme Court ruled that, upon the voters' adoption of Proposition 8 in June 1982, witnesses could be impeached with evidence of conduct resulting in a misdemeanor conviction, as well as by evidence of conduct demonstrating dishonesty and moral laxity. (Id. at p. 292; see also People v. Mickle (1991) 54 Cal.3d 140, 168 [jailhouse informant's threats to witnesses in his own case was admissible impeachment evidence].) However, "trial courts [are] free to exclude evidence which is irrelevant, or whose marginal relevance is outweighed by the unfair prejudice or other difficulties its introduction might cause." (People v. Wheeler, supra, at p. 294.)

The trial court had discretion to exclude evidence if its admission would result in an undue consumption of time. Evidence of an arrest which did not result in a conviction would necessarily run the risk of leading to a trial-within-a-trial, reason enough to exclude it. More to the point, however, appellant does not, and cannot, argue that there is a reasonable possibility that the admission of this evidence would have resulted in a different verdict. (Chapman v. California (1967) 386 U.S. 18.) Even if Mensah's testimony were completely discredited and the jury disregarded it in its entirety, the remaining evidence was overwhelming: Four witnesses in addition to Mensah, one of them a complete stranger who happened to be sitting in his truck at the time of the altercation, identified appellant as the shooter. Given this fact, the trial court's exclusion of evidence tending to undermine Mensah's credibility cannot be said to be prejudicial error.

b. Evidence supporting an absence of malice

During defense counsel's cross-examination of Mensah, the trial court sustained as irrelevant an objection to questions concerning a fight Mensah had participated in the day before the shooting. The trial court permitted the defense to ask Mensah if he was in custody, but prohibited questions about the charges for which he was being held.

Notwithstanding the trial court's ruling, defense counsel's cross-examination of Mensah produced the victim's agreement that he had "expect[ed]" an "altercation" on the day of the shooting, due to a fight that he had had the day before. Mensah stated that he and a male named David arranged a "fair fight" with one another, and that, based on that fight, he expected he would have another fair fight on the day of the shooting. He did not expect anyone to use a gun.

The trial court excluded any further questions regarding Mensah's fights with Hispanics. The court based its ruling on Evidence Code section 352, after finding that this line of questions would consume too much time, create a substantial danger of undue prejudice, and confuse the jury.

Appellant contends that, "[t]hroughout the trial, the trial court restricted defense counsel's efforts to present a defense of self-defense, or imperfect self-defense, and/or a defense which would negate the required element of premeditated intent to kill. Defense counsel sought to elicit evidence that would show that appellant fired the weapon in a belief that he was in danger; that the shots were fired in the heat of the moment during a tense standoff with rival gang members. This defense depended on eliciting information regarding the violent nature of Saquan [Mensah], as eviden[ced] by his prior history of fighting with Hispanics, and by his recent unprovoked assault and robbery of a man on a train." Specifically, appellant attempted to solicit testimony from various witnesses regarding Mensah's prior violent conduct, including the acts underlying his recent arrest on robbery charges, as well as his gang membership, which Mensah denied.

Appellant argues: "[I]t must be concluded that the trial court erred in excluding the proffered evidence of [Mensah's] prior violent conduct and his current status as an arrestee for a violent offense. This conduct suggests that [Mensah] is a person who would harm others, and one who has a bias to make himself the victim when he is the aggressor. . . . [T]he prior violent history of [Mensah] was relevant to appellant's defense that he did not commit premeditated deliberate attempted murder. Jurors are instructed to consider the violent nature of the victim when considering whether the lesser offense of attempted voluntary manslaughter is committed. CALCRIM 604 directs that in determining whether the [appellant] believed it was necessary to defend himself and whether this was a reasonable or unreasonable belief, the jurors may consider whether the victim threatened or harmed the defendant or others in the past; whether defendant knew that the victim had threatened or harmed others in the past; and whether defendant received a threat from someone else that he reasonably associated with the victim."

We examine the elements of the two defenses which appellant claims he was improperly precluded from pursuing in order to determine whether the trial court erred.

i. Imperfect self-defense

A person who intentionally, or in conscious disregard of human life, kills another in the good faith but unreasonable belief that deadly force is necessary in self-defense commits the crime of voluntary manslaughter. (People v. Blakeley (2000) 23 Cal.4th 82, 87-88.) The defense of imperfect self-defense applies only when the defendant "actually, but unreasonably believed he was in imminent danger of death or great bodily injury. . . ." (People v. Manriquez (2005) 37 Cal.4th 547, 581, italics in original.) The imperfect self-defense "doctrine is narrow. It requires without exception that the defendant must have an actual belief in the need for self-defense." (Ibid., italics in original.)

After listing the required elements of the defense of attempted imperfect self-defense,4 CALCRIM No. 604, upon which appellant relies, states:

"In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant. "[If you find that <insert name or description of alleged victim> threatened or harmed the defendant [or others] in the past, you may consider that information in evaluating the defendant's beliefs.] "[If you find that the defendant knew that <insert name or description of alleged victim> had threatened or harmed others in the past, you may consider that information in evaluating the defendant's beliefs.] "[If you find that the defendant received a threat from someone else that (he/she) reasonably associated with <insert name or description of alleged victim>, you may consider that threat in evaluating the defendant's beliefs.]"

From the foregoing, appellant argues that the victim's prior acts of violence are relevant to the defense of imperfect self-defense. He concludes that he was improperly precluded from submitting evidence of Mensah's violent nature, which would have supported his defense and required the trial court to instruct the jury on imperfect self-defense.

A victim's violent nature, standing alone, is not relevant to the defense of imperfect self-defense. A defendant may, however, establish his subjective belief that he was in imminent peril by introducing evidence that the victim, or someone who in the defendant's mind was reasonably associated with the victim, had threatened or harmed the defendant in the past. (People v. Minifie (1996) 13 Cal.4th 1055, 1065, 1069.) Thus, the notes to CALCRIM No. 604 state that, "In evaluating whether the defendant actually believed in the need for self-defense, the jury may consider the effect of antecedent threats and assaults against the defendant, including threats received by the defendant from a third party that the defendant reasonably associated with the aggressor."

Appellant wished to establish his subjective belief that he was in imminent peril through expert testimony. Thus, during cross-examination of the prosecution's gang expert, Detective Gutierrez, defense counsel asked whether a member of a Black gang would know that a member of the "Eastside Longos who give[s] challenges would possibly be armed . . . ." Detective Gutierrez replied, "I don't know. Possibly. I don't know how to answer that." Defense counsel also posed to Detective Gutierrez a long hypothetical question beginning with a summary of the facts of this case, from the words exchanged at the bus stop to the two groups confronting each other at the rear of the gas station. The question concluded: "And both sides are preparing to fight. And one person out of the group of Blacks raises his arm, as I am doing, in a pointing or aiming position, would you expect the Eastside Longos to believe that he was in immediate danger?" The trial court stated, "That's asking for speculation. That's for the jury."

The proffered evidence does not establish that Mensah had threatened to harm appellant in the past. Without such evidence, appellant cannot argue that he actually believed in the need for self-defense. Moreover, an expert's testimony about how a gang member would react to the situation described in defense counsel's hypothetical question provides no evidence that appellant had a subjective, good faith belief that he was in imminent peril immediately prior to shooting Mensah.5 Consequently, evidence of Mensah's prior violent conduct was irrelevant to any material issue at trial, and the trial court properly ruled it inadmissible.

ii. Heat-of-passion voluntary manslaughter

In order to reduce an intentional unlawful killing from murder to manslaughter based upon a sudden quarrel or heat of passion, the evidence must show that the defendant was "so provoked" by the victim as would "arouse a reasonable person to make the kind of sudden and devastating attack" which the defendant made. (People v. Waidla (2000) 22 Cal.4th 690, 740, fn. 17.) Moreover, "[t]he provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim." (People v. Lee (1999) 20 Cal.4th 47, 59.) "Heat of passion arises when `at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.' (CALJIC No. 8.42 (5th ed. 1995 supp.)." (People v. Barton (1995) 12 Cal.4th 186, 201.) "Adequate provocation and heat of passion must be affirmatively demonstrated." (People v. Lee, supra, 20 Cal.4th at p. 60.)

Appellant complains that the trial court prevented him from presenting evidence which would support a heat-of-passion instruction. However, there was no evidence that Mensah provoked appellant, nor any offer of proof to that effect. Thus, the trial court properly refused appellant's request that the jury be instructed in heat-of-passion voluntary manslaughter.

2. Hate crime enhancement

The jury found true the allegation that the attempted murder was a hate crime and that appellant committed the offense voluntarily and in concert with another, in violation of section 422.75, subdivision (b). Appellant claims there was insufficient evidence to support this finding. To assess the merits of this contention, we "review 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.)

Penal Code section 422.55 defines "hate crime" as "a criminal act committed, in whole or in part, because of one or more of the . . . actual or perceived characteristics of the victim," including race. As our Supreme Court explained in In re M.S. (1995) 10 Cal.4th 698, 719, "the bias motivation must be a cause in fact of the offense, whether or not other causes exist. [Citation.] When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the crime. [Citation.]" Importantly, "[t]he Legislature has not sought to punish offenses committed by a person who entertains in some degree racial, religious or other bias, but whose bias is not what motivated the offense." (Ibid.)

We have found only two California cases which discuss the sufficiency of the evidence proffered in support of the jury's finding that the principal offense constituted a hate crime: People v. Lindberg (2008) 45 Cal.4th 1 and In re M.S., supra, 10 Cal.4th 698.6 In the latter case, two minor girls and their two adult male companions shouted antigay epithets in a "`hateful' sounding tone" at five homosexual men who were strangers to them as they were walking in the early-morning hours in San Francisco's Castro District. The aggressors threatened to "beat up" the gay men, screaming, "We are going to kill you, you are all going to die of AIDS," and "We are going to get you faggots." (10 Cal.4th at pp. 707-708.) One of the victims slipped and fell to the ground, where he was kicked repeatedly by the minors and their companions. Another of the victims was kicked in the head, causing him to lose consciousness. A petition was sustained as to the minors under Welfare and Institutions Code section 602, and the juvenile court found that the offense had been committed because of the victims' sexual orientation.

The Supreme Court affirmed that finding on appeal. In interpreting the statutory language, the court stated that the "statutes require proof, inter alia, that the offense was committed because of the perpetrator's racial, religious or other specified bias. As used in sections 422.6 and 422.7, and as a matter of common usage, `because of' means the conduct must have been caused by the prohibited bias. A cause is a condition that logically must exist for a given result or consequence to occur." (In re M.S., supra, 10 Cal.4th at p. 719.) While recognizing that "A number of causes may operate concurrently to produce a given result, . . . [b]y employing the phrase `because of' in sections 422.6 and 422.7, the Legislature has simply dictated that the bias motivation must be a cause in fact of the offense, whether or not other causes also exist." (Ibid.) One may logically infer from this that, in the context of this case, if the minors would not have attacked the victims had they not perceived the victims to be gay, then the bias motivation caused the offense.

In People v. Lindberg, supra, 45 Cal.4th 1, the defendant confessed to stabbing Thien Minh Ly to death. The defendant, who was involved in the White power movement, told his cousin he had "killed a jap" (id. at p. 8) "for [the] racial movement" and repeated that the murder was racially motivated (id. at p. 9). A search of the defendant's residence uncovered many written and graphic materials supporting the conclusion that the defendant was a White supremacist, including a poster celebrating the death of Martin Luther King, swastika-adorned paraphernalia, and an application for the N.A.A.W.P. (National Association for the Advancement of White People). When interviewed upon his arrest, the defendant admitted that he had sent a newspaper clipping about the murder to his cousin but denied any involvement in the crime. He indicated that he was interested in the murder "[c]ause it was an ethnic," and "[i]t wasn't a White person." The defendant's cellmate in jail came to believe that the defendant hated Asian people based on comments he had heard defendant make. The defendant had told his teenage friend that he disliked Asians because he "got kicked off Okinawa." He referred to Asians as "gooks" and Hispanics as "spick[s]" and "wetback[s]" (id. at p. 15). A former coworker of the defendant testified to his racists remarks. For instance, on one occasion an African-American employee came into the employee lunchroom, said hello and then left. The defendant said, "I hate that nigger bitch. She got on my nerves." The coworker also testified that the defendant referred to Asians as "gooks," and reported an incident when the defendant, with others, was harassing an Asian man by pushing and screaming at him. Letters written by the defendant also reflect defendants' disregard for ethnic minorities. After noting that the "because of" language in the hate-murder special circumstance allegation set forth in section 190.2 was similar to the hate crime allegation language of sections 422.6 and 422.7, the Supreme Court found this evidence sufficient to support the jury's hate-murder special circumstance finding.

The records in In re M.S. and People v. Lindberg contained extensive evidence that the defendants in those cases were motivated by anti-gay and racial bias, such that the crimes would not have occurred in the absence of that motivation. In this case, the jury was asked to find true the hate crime allegation based on appellant's utterance of a single racial epithet, and expert gang testimony to the effect that members of the Eastside Longo gang do not "like Black people. They consider them enemies because they may be gangsters." However, the foregoing evidence is, at best, suggestive of appellant's racial bias. As our Supreme Court made clear in In re M.S., supra, the prosecution must do more than provide evidence of racial bias; it must prove that such bias caused the offense. Here, there is no direct evidence that appellant's racial bias caused him to shoot Mensah. Thus, the prosecution had to rely on an inference that appellant's racial bias caused him to attack Mensah. Respondent does not even articulate the inference which the jury must have drawn in order to find true the hate crime allegation.

Although there were a dozen or more African-Americans whom appellant could have chosen to assault had he been motivated by racial hatred, appellant focused on one particular person — Mensah — to whom he addressed his gang insults, and at whom he aimed and fired his weapon. This is in stark contrast to the situation in In re M.S., where the defendants directed their insults and criminal behavior at the entire group of people sharing the perceived characteristic of homosexuality. In addition, David Peraleta provided evidence that appellant attacked Mensah in retaliation for Mensah's engagement in an "unfair fight" with Peraleta the day before the shooting. This evidence negates any suggestion that appellant was motivated by antipathy to African-Americans; rather, the evidence presented at trial supports the conclusion that what motivated appellant to attack Mensah was personal and gang animosity. In short, there is no evidence that appellant would have shot Mensah had he not acted on his "nonbias motives," that is, his gang-related motivations. (See In re M.S., supra, 10 Cal.4th at pp. 731-733 [Kennard, J., conc. opn.].) We therefore reverse the hate crime enhancement finding and strike the additional two-year sentence imposed as a result of that finding.

3. Sentencing error

Appellant maintains that the trial court erred in imposing sentence for the gang allegation. Because he was sentenced to an indeterminate term on the attempted murder conviction, appellant claims that the gang allegation finding should have resulted in a 15 year minimum parole date, rather than in a 10 year consecutive sentence. The People agree that the trial court erred: "As the California Supreme Court has explained, when the statute for the underlying crime mandates a sentence of an indeterminate term (either a `straight life term' or a `term of years to life'), then a trial court should not impose a consecutive term for the gang enhancement on that count. Rather, the gang enhancement finding means that appellant is not eligible for parole for a minimum of 15 years. (People v. Lopez (2005) 34 Cal.4th 1002, 1004-1007.)" We agree as well.

Appellant also claims that the trial court was not aware that it had the discretion to stay the sentence on the two enhancement findings. He bases this claim of error on the trial court's response to his request that the court fashion a sentence which would reflect the mitigating factors proffered by his counsel.7

The prosecutor argued for a sentence consisting of "a number of mandatory sentences:" Life in prison for the premeditated attempted murder; 25 years to life for the use of a gun causing great bodily injury; 10 years for the gang enhancement, and two, three or four years for the hate crime enhancement. Defense counsel responded, "Your honor, obviously I disagree with the prosecutor's evaluation. I would simply ask that those particular areas that the court can stay, that it do so, . . ."

The court imposed a sentence of life for the premeditated attempted murder, a consecutive term of 25 years to life for the gun use, 10 years for the gang allegation and the low term of two years for the hate crime enhancement, for a total sentence of 37 years to life. The court said nothing to indicate that it had no discretion to stay sentence on the gang and/or hate crime enhancements. Appellant nevertheless argues that the trial court did not know that it had discretion to strike the sentence on these enhancements.

The argument must fail. The sentence imposed, as modified herein, is a lawful sentence, and the record is devoid of any evidence that the trial court was unaware of its sentencing discretion. Consequently, there is no basis to remand the matter for resentencing as requested by appellant.

DISPOSITION

The clerk of the superior court is directed to amend the abstract of judgment to strike the 2-year sentence on the hate crime enhancement finding and to strike the 10-year sentence on the gang enhancement finding and to order instead that appellant is not eligible for parole for a minimum of 15 years. In all other respects, the judgment is affirmed.

I concur:

MOSK, J.

KRIEGLER, J., Concurring and Dissenting.

A Hispanic gang member, bearing tattoos reflecting racial animus against Blacks, said "fuck niggers" immediately before attempting to murder a Black victim by firing multiple shots with a handgun. The majority holds there was no substantial evidence to support the jury's finding that the attempted murder was subject to the hate crime enhancement of Penal Code section 422.75, subdivision (b). I respectfully dissent from that portion of the majority opinion.

As our Supreme Court has explained, a hate crime is committed "because of" the victim's race under Penal Code section 422.75 if the bias motivation was "a cause in fact of the offense, and when multiple concurrent causes exist, the bias motivation must have been a substantial factor in bringing about the offense." (People v. Superior Court (Aishman) (1995) 10 Cal.4th 735, 741, citing In re M.S. (1995) 10 Cal.4th 698, 719.) For purposes of appeal, we are required to apply "the deferential substantial evidence test" in determining if an offense was a hate crime, which dictates that we "review the entire record in the light most favorable to the judgment." (People v. Lindberg (2008) 45 Cal.4th 1, 37-38 [discussing sufficiency of the evidence of the hate-crime murder special circumstance in Pen. Code, § 190.2, subd. (a)(16).) The issue is whether the record contains substantial evidence from which a rational trier of fact could find the essential elements of the hate crime enhancement beyond a reasonable doubt. (Id. at p. 37.)

The evidence, viewed in the light most favorable to the judgment, demonstrates that defendant's racial bias motivation was one of the substantial factors in the shooting. A group of Hispanic gang members, including defendant, confronted a group of Black young men, including victim Saquan Mensah, at a bus stop. Words were exchanged, starting with the Hispanics' gang taunts of Black gangs. After the initial volley of slurs, the groups moved to the rear of a gas station to fight. A witness testified that defendant said, "fuck niggers," pulled out a gun, and shot Mensah.

This evidence alone was sufficient to support a finding that racial bias was at least one substantial factor in the shooting. The testimony of police officers familiar with defendant's gang provided additional evidence to support the hate crime enhancement. According to the officers' testimony, defendant was an admitted gang member who had numerous gang-related tattoos, including one—"crab killer"—that indicated defendant did not like Black gangsters or Black people. Defendant's gang held racial animus towards Blacks. One officer expressed the opinion that a gang member yelling "fuck niggers" indicated disrespect for Black gang members.

Given the record in this case, a rational trier of fact could easily conclude that a substantial factor in the shooting of Mensah was defendant's racial hatred of Blacks. The record supports the reasonable inference the incident would not have taken place except for the race of the victim. I would affirm the hate crime enhancement.

FootNotes


1. Further statutory references are to the Penal Code unless otherwise indicated.
2. In accord with the well-established rule of appellate review, we recite the evidence in the light most favorable to the judgment, drawing all inferences in support of the conviction. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
3. The jury heard testimony that Mensah identified himself as a Blood to Paraleta.
4. A direct but ineffective step toward killing a person, with the intent to kill, and with a good faith but unreasonable belief that the defendant was in imminent danger and that deadly force was necessary to defend against the danger. (CALCRIM No. 604.)
5. Indeed, because it was Burnett, not Mensah, who was seen pointing at appellant in the video of the crime-in-progress, and defendant did not testify concerning his perception of the threat, there was no evidence upon which a jury could conclude that Burnett's threatening conduct caused appellant to believe that it was necessary to kill Mensah in order to defend himself from imminent harm.
6. Two additional cases discuss the hate crime evidence, but in the context of a challenge to the constitutionality of the various hate crime enhancement statutes, rather than the sufficiency of the evidence to support the enhancement itself: In re Joshua H. (1993) 13 Cal.App.4th 1734; People v. MacKenzie (1995) 34 Cal.App.4th 1256. Additional cases involving the hate crime statutes are not of much help. For instance, in People v. Superior Court (Aishman) (1995) 10 Cal.4th 735, the trial court dismissed the allegation prior to trial, and in People v. Carr (2000) 81 Cal.App.4th 837 and People v. Thurman (2007) 157 Cal.App.4th 36, the jury deadlocked on the issue.
7. These included the following: Appellant had a minimal criminal history prior to this offense, had obtained his GED while incarcerated, and had strong family support. The trial court characterized these factors as "positive things."

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