People v. Campos

• Citation: 196 Cal.App.4th 438,2011 Daily Journal D.A.R. 8414,11 Cal. Daily Op. Serv. 7100,126 Cal.Rptr.3d 274
• Decision Date: 14 September 2011
• Docket Number: No. D057172.,D057172.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joel CAMPOS, Jr., Defendant and Appellant.

196 Cal.App.4th 438
126 Cal.Rptr.3d 274
11 Cal. Daily Op. Serv. 7100
2011 Daily Journal D.A.R. 8414

The PEOPLE, Plaintiff and Respondent,
v.
Joel CAMPOS, Jr., Defendant and Appellant.

No. D057172.

Court of Appeal, Fourth District, Division 1, California.

June 9, 2011.
Review Denied Sept. 14, 2011.^*
Certified for Partial Publication.^*

[126 Cal.Rptr.3d 275]Koryn & Koryn and Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

IRION, J.

[196 Cal.App.4th 442]

A jury found Joel Campos, Jr., guilty of three counts of attempted willful, deliberate and premeditated murder (Pen.Code, §§ 187, subd. (a), 664); ¹ three counts of assault with a semiautomatic firearm (§ 245, subd. (b)); and one count of discharging a firearm at an occupied motor vehicle (§ 246). The jury also found true allegations that Campos: (1) committed the offenses for the benefit of a criminal street gang ( § 186.22, subd. (b)); (2) personally used a firearm during the commission of the offenses [126 Cal.Rptr.3d 276](§ 12022.5, subd. (a)); (3) personally and intentionally discharged a firearm causing great bodily injury during the commission of the offenses (§ 12022.53, subd. (d)); and (4) personally inflicted great bodily injury on a person who was not an accomplice (§ 12022.7, subd. (a)). As more fully explained in part I.D., post, at sentencing the trial court imposed an aggregate indeterminate prison term of 40 years to life based on the convictions of attempted murder and discharge of a firearm at an occupied motor vehicle and the

[196 Cal.App.4th 443]

attached enhancements; imposed and stayed three determinate prison terms based on the convictions of assault with a semiautomatic firearm and the attached enhancements; ordered Campos to pay various restitution fines and court security fees; and awarded him various sentencing credits.

On appeal Campos contends: (1) the trial court erred by instructing the jury with CALCRIM No. 357 on adoptive admissions because his statement to police during a pretrial interview was an invocation of his constitutional right to remain silent, not an adoptive admission; (2) insufficient evidence supports his convictions of the attempted murders of Ricardo Rodriguez and his brother Clemente Rodriguez (hereafter, the Rodriguez brothers); (3) a one-year enhancement to his sentence for having served a prior prison term must be stricken; and (4) the abstract of judgment incorrectly states how the indeterminate sentences are to run concurrently and must be corrected to conform to the sentence pronounced by the trial court at the sentencing hearing.

Before oral argument, it appeared to us that the sentence imposed on one of the attempted murder counts might be unauthorized and that the trial court might have erroneously stricken certain enhancements. We therefore obtained supplemental briefing from the parties on these issues.

For reasons explained in the unpublished portion of this opinion, we affirm the convictions on all counts but reverse certain sentencing errors. In the published portion, we reverse error regarding the imposition of a gang alternate penalty and remand the matter for resentencing.

I FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting on May 5, 2006

On May 5, 2006, there was a drive-by shooting at the trailer park where Campos's family resided. One of the trailers hit by the bullets belonged to the Campos family. None of the witnesses interviewed by the police identified the person who fired the shots, but a description of the vehicle from which the shots were fired matched that of a vehicle owned by José Juan Cazares. Campos's sister later told him that Cazares was driving the vehicle.

B. The Shooting on July 4, 2006

On July 4, 2006, Cazares was traveling in his sports utility vehicle in Indio, with the Rodriguez brothers as passengers. While Cazares stopped his vehicle at an intersection, Uriel Rodriguez drove a pickup truck alongside Cazares's vehicle.

[196 Cal.App.4th 444]

Campos was sitting in the passenger seat of the pickup truck and began arguing with Cazares. When Campos challenged Cazares to a fight, Cazares told him to pull over. Campos then pulled out a gun and fired at least 13 rounds at Cazares. Some of the bullets struck Cazares in the right shoulder and chest; one went through his spine; and others lacerated his diaphragm, liver and right kidney. Eight other bullets penetrated the outer aspect of the driver's [126 Cal.Rptr.3d 277]side of Cazares's vehicle but did not pass into the interior, and another broke the rear driver's side window. Cazares lost control of his vehicle and crashed into a building two blocks away.

Although his injuries were life-threatening, Cazares successfully underwent surgery and survived. Neither of the Rodriguez brothers were struck or injured by any of the bullets.

C. Campos's Arrest and Trial

Campos was subsequently arrested. After being advised of and waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694( Miranda ), Campos gave a videotaped interview to police during which he discussed, among other things, the shootings of May 5 and July 4, 2006.

An information was filed against Campos charging him with three counts of willful, deliberate and premeditated attempted murder (counts 1, 2 & 3) (§§ 187, subd. (a), 664); three counts of assault with a semiautomatic firearm (counts 4, 5 & 6) (§ 245, subd. (b)); and one count of discharging a firearm at an occupied motor vehicle (count 7) (§ 246). The information also alleged that Campos: (1) personally inflicted great bodily injury on Cazares (§ 12022.7, subd. (a)) as to counts 1, 4 and 7; (2) was armed with a firearm during the commission of the offenses (§ 12022, subd. (a)(1)) as to counts 1, 2 and 3; (3) personally used a firearm during the commission of the offenses (§ 12022.5, subd. (a)) as to counts 1 through 6; (4) personally and intentionally discharged a firearm causing great bodily injury during the commission of the offenses (§ 12022.53, subd. (d)) as to counts 1, 2, 3 and 7; (5) committed the offenses while he was on bail (§ 12022.1) as to all counts; (6) committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)) as to all counts; and (7) served a prison term for a prior felony (§ 667.5, subd. (b)). The allegation concerning Campos's having served a prior prison term was later dismissed on the People's motion.

At trial, the People played the videotape of Campos's interview with the police and introduced the transcript of the interview as an exhibit. The People also introduced many photographs of the crime scene and called the victims, investigating police officers and other witnesses to testify about the shootings

[196 Cal.App.4th 445]

of May 5 and July 4, 2006. As their last witness, the People called Sergeant Christopher Hamilton to testify as an expert on criminal street gangs. Sergeant Hamilton testified that Campos was a member of a criminal street gang and Cazares was an associate of a rival gang. Sergeant Hamilton also opined that the shooting at Cazares and his vehicle was gang-related and done in retaliation for the shooting at the Campos home two months earlier.

The jury returned verdicts of guilty on all counts and found true: (1) the gang allegations (§ 186.22, subd. (b)) as to all counts; (2) the allegations that Campos personally used a firearm (§ 12022.5, subd. (a)) as to counts 1 through 6; (3) the allegations that Campos personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) as to counts 1, 2, 3 and 7; and (4) the allegations that Campos caused great bodily injury (§ 12022.7, subd. (a)) as to counts 1, 4 and 7. The jury returned no findings on the allegations that Campos was armed during commission of the offenses (§ 12022, subd. (a)(1)) or that he committed the offenses while on bail (§ 12022.1).

D. Campos's Prison Sentence

On the three convictions of attempted murder (counts 1, 2 & 3) and the conviction of shooting at an occupied vehicle [126 Cal.Rptr.3d 278](count 7), the trial court sentenced Campos to an aggregate indeterminate prison term of 40 years to life. Specifically, for the attempted willful, deliberate and premeditated murder of Cazares (count 1), the court sentenced Campos to prison for seven years to life (§§ 664, subd. (a), 3046, subd. (a)(1)), plus 25 years to life for the attached enhancement for personally and intentionally discharging a firearm causing great bodily injury (§ 12022.53, subd. (d)). As to count 1, the trial court also stated that “with respect to ... Penal Code 186.22(b), the gang enhancement, the additional punishment for that violation is stayed.” On each of the convictions of the attempted willful, deliberate and premeditated murders of the Rodriguez brothers (counts 2 & 3) and the conviction of discharging a firearm at an occupied motor vehicle (count 7), the court sentenced Campos to prison for 15 years to life (§§ 664, subd. (a), 186.22, subd. (b)(4)(B), (5)),² plus 25 years to life for the attached enhancement for

[196 Cal.App.4th 446]

personally discharging a firearm and causing great bodily injury (§ 12022.53, subd. (d)). The trial court struck the firearm enhancements under section 12022.5, subdivision (a) from counts 1, 2 and 3; and also struck the great bodily injury enhancements under section 12022.7, subdivision (a) from counts 1 and 7. The court ordered that the indeterminate terms imposed on the convictions on counts 2, 3 and 7 were to run concurrently with that imposed on the conviction on count 1.

On the three convictions for assault with a semiautomatic firearm (counts 4, 5 & 6), the trial court imposed and, pursuant to section 645,...