Filed 2/4/15 P. v. Sims CA2/8
Received for posting 4/17/15
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B249357

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA117622)
         v.

DAMIAN CHRISTOPHER SIMS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Raul
Anthony Sahagun, Judge. Affirmed in part; vacated in part and remanded.


         Linda Acaldo, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Margaret E. Maxwell and Douglas L. Wilson, Deputy Attorneys General, for
Plaintiff and Respondent.




                                                   ************
        We reject defendant Damian Christopher Sims’s challenge to the sufficiency of
the evidence to support the gang enhancements and affirm the judgment of conviction.
Because the parties have identified errors in defendant’s sentence, we remand the case to
the trial court for resentencing.
                                         FACTS
        This appeal stems from convictions based on crimes committed on two separate
days. We summarize the facts in the light most favorable to the verdict. (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206.)
1. October 24, 2010
        Defendant, a member of the Cross Atlantic Piru (Piru) criminal street gang, had
numerous tattoos reflecting his gang membership. On October 24, 2010, about midnight,
defendant was in a residential neighborhood claimed by the Southside gangsters, a rival
to defendant’s gang. Defendant wore black and texted an unidentified person.
        Defendant stopped in front of a house on Olanda Street, outside of which Franklin
Sosa, Antonio Acosta, and Yvette Esparza were standing. Sosa was a member of the
Southside gangsters, and Esparza was either a member or associate of the Southside
gangsters. Defendant announced his gang affiliation by saying “Cross Atlantic Piru.”
Sosa responded with his gang affiliation saying “Southside gangsters.”
        Hearing Sosa’s gang affiliation, defendant pulled down a “hoody” to cover his
face and fired at Sosa, Acosta, and Esparza as they ran toward the residence. Defendant
wounded Sosa’s left and right legs. Bullets grazed Esparza’s head, and one dented her
head.
        After he shot at Sosa, Acosta, and Esparza, defendant shot at Oscar Santiago and
his daughter Janett Osegueda. Santiago and Osegueda lived next door on Olanda Street
and observed the other shootings. Osegueda was injured badly after a bullet entered and
exited her face. Osegueda’s brother is a Southside gangster. Osegueda’s husband heard
the gunshots.




                                             2
       Next, defendant pointed his gun at Emily Veliz, who heard the prior gunshots as
she smoked a cigarette outside her home. Defendant did not shoot at Veliz.
       When interviewed on November 10, 2010, Sosa said that defendant announced
“Cross Atlantic Piru” prior to the shooting (though he denied this during his in-court
testimony). Sosa reported during the interview that he responded by naming his gang
affiliation “Southside gangsters.” In an interview after the shooting, Esparza identified
defendant as a Piru gang member. Esparza said that “her homeboy” argued with
defendant prior to the shooting.
       Gang expert Detective Fernando Sarti testified that gangs have “shot callers” and
“soldiers.” Generally, the shot caller assigns work to the soldiers in the form of crimes
they are instructed to commit. Sarti testified that a gang member could be killed for
snitching, which means reporting a crime committed by a fellow gang member or a rival
gang member.
       Sarti testified that gang members are very concerned about their gang’s reputation
and solidify the reputation through violence. One gang may shoot at people in an area in
order to gain territory claimed by another gang. If gang members stop committing crimes
the gang loses its reputation. An individual gang member earns “respect” in a gang by
committing violent crimes. According to Sarti, the primary activities of Piru gang
members include vandalism, petty thefts, beatings and shootings. Gang members
commonly possess guns.
       When asked a hypothetical based on the facts of this case, Sarti opined that the
crimes were committed for the benefit of and at the direction of a criminal street gang.1
Sarti relied on the fact that defendant announced his gang affiliation prior to the
shootings. Sarti also relied on the fact that there was an ongoing feud between the rival
gangs prior to the shooting. Sarti opined that defendant did not put his hoody on earlier
because he wanted Sosa, Esparza, and Acosta to know his identity. It benefits the


1      Defendant emphasizes that Sarti used the phrase “in the benefit” not “for the
benefit” but we find this distinction meaningless.


                                              3
reputation of defendant’s gang for the victims to know that a Piru gang member shot at
them.
2. November 17, 2010
        Almost a month after the shootings on Olanda Street, on November 17, 2010,
defendant and an accomplice entered a market in Los Angeles, held a gun to manager
Sherman Buggs’s head, and demanded money. Defendant took money from the cash
registers, which was later recovered from his pants. During the robbery, defendant and
Buggs exchanged gunfire. Ramon Juarez, the market’s butcher, tried to walk back into
the store and was stopped by defendant’s accomplice. Juarez hid behind the store.
                                       PROCEDURE
        In June 2011, defendant was charged with 14 crimes and numerous enhancements.
Five prior convictions were alleged. Defendant pled not guilty and was tried by a jury.
As described below he was convicted of all charges except the attempted murder of
Buggs.
        With respect to the incident occurring on October 24, 2010, in counts 10-14,
defendant was found guilty of five counts of attempted murder (with victims Sosa,
Esparza, Acosta, Santiago, and Osegueda). Jurors found the attempted murder of Sosa
was committed willfully, deliberately and with premeditation, that defendant personally
inflicted great bodily injury on Sosa, and that defendant personally discharged a firearm
within the meaning of Penal Code section 12022.53, subdivisions (b), (c), and (d).2
Jurors further found the gang enhancement within the meaning of section 186.22,
subdivision (b)(1)(C) was true.
        With respect to the attempted murder of Esparza, jurors found that it was
committed willfully, deliberately, and with premeditation. Jurors also found that
defendant intentionally discharged a firearm within the meaning of section 12022.53,
subdivision (d), and that the gang enhancement under section 186.22, subdivision
(b)(1)(C) applied.

2       All statutory citations are to the Penal Code.


                                              4
       Jurors found the attempted murders of Acosta and Santiago were committed
willfully, deliberately and with premeditation, that defendant personally discharged a
firearm within the meaning of section 12022.53, subdivisions (b), (c), and (d), and that
the crimes fell within the gang enhancement described in section 186.22, subdivision
(b)(1)(C). With respect to the attempted murder of Osegueda, jurors found the same
enhancements and the additional enhancement that defendant personally inflicted great
bodily injury within the meaning of section 12022.7, subdivision (a).
       Jurors convicted defendant of assault with a semiautomatic firearm upon Veliz
(count 15), and found that the use of a handgun and gang enhancements applied to that
count. Defendant was convicted of two counts of shooting at an inhabited dwelling—the
residences outside of which Sosa and his friends stood and the residence where Santiago
and Osegueda lived (counts 16 & 17)—and as to those counts the gang enhancement was
found true. Defendant was convicted of possession of a firearm by a felon (count 18),
also with the gang enhancement.
       With respect to the incident occurring November 17, 2010, jurors found defendant
not guilty of the attempted murder of Buggs (count 1). He was convicted of the second
degree robbery of Buggs (count 2). Jurors further found true the allegations that in
committing the robbery of Buggs defendant used a firearm within the meaning of section
12022.53, subdivisions (b) and (c). Defendant was found guilty of two counts of assault
with a firearm (Buggs [count 3] & Juarez [count 5]), and with respect to each, jurors
found true that defendant used a handgun within the meaning of section 12022.5,
subdivision (a). Finally, defendant was found guilty of possession of a firearm by a felon
in violation of former section 12021, subdivision (a)(1) (count 9).
       Following the return of the verdicts, defendant admitted his prior convictions. The
court sentenced defendant to an aggregate 153-year-to-life term.
                                       DISCUSSION
1. Substantial Evidence Supported the Gang Enhancements
       Proof of the gang enhancement requires evidence that the felony was “committed
for the benefit of, at the direction of, or in association with any criminal street gang, with


                                              5
the specific intent to promote, further, or assist in any criminal conduct by gang
members . . . .” (§ 186.22, subd. (b)(1).) Defendant argues the record lacks sufficient
evidence to support the gang enhancement attached to the five counts of attempted
murder, two counts of shooting at an inhabited dwelling, and one count of being a felon
in possession of a firearm. Specifically, he contends the record lacks substantial evidence
those crimes were committed for the benefit of, at the direction of and in association with
a criminal street gang. We disagree.
        “In considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.” (People v. Albillar (2010) 51 Cal.4th
47, 59-60.)
        Overwhelming evidence supported the finding that the crimes were committed for
the benefit of defendant’s gang. With respect to the attempted murders of Sosa, Acosta
and Esparza as well as shooting at their inhabited dwelling, defendant was shooting at
rival gang members in rival gang member territory. Immediately prior to shooting at
them, defendant identified his own gang. Defendant pulled down his hoody after the
rival gang members saw him in order to make sure they knew his identity. This is the
quintessential gang crime committed against a rival gang member after defendant
identified his gang—as it benefitted defendant’s gang by enhancing the reputation of his
gang.
        Shooting at Santiago and Osegueda and their dwelling also benefitted defendant’s
gang. Shooting at Santiago and Osegueda as well as shooting at their home furthered the
reputation of defendant’s gang because it showed that Piru gang members were willing to


                                              6
kill not only rival gang members but their families and neighbors. Gang expert Sarti’s
testimony that one gang may shoot at people in an area in order to gain territory claimed
by another gang supported the jurors’ conclusion that these attempted murders were
committed to benefit defendant’s gang.
       Finally, jurors could reasonably conclude defendant possessed the gun to benefit
his gang. According to Sarti, the primary activities of Piru gang members include
vandalism, petty thefts, beatings and shootings, and gang members commonly possess
guns. Moreover, defendant possessed the gun in order to shoot at rival gang members,
supporting the conclusion that the possession of the gun benefitted his gang.
       Ample evidence supported the finding that all of the crimes were committed at the
direction of defendant’s gang. The record shows that gangs are made up of shot callers
and soldiers. Soldiers commit crimes at the behest of the shot callers. Shootings were
primary activities of the Piru gang. The evidence supported the inference that by
possessing the gun, shooting at Sosa, Esparza, Acosta, Santiago, Osegueda and their
dwellings, defendant was putting in work for his gang. He was a soldier acting at the
behest of the gang’s shot caller. Evidence that the Piru gang required its members to
commit violent acts in order to maintain the gang’s existence further supported this
conclusion.
       Defendant’s challenge to the sufficiency of the evidence fails to interpret the
evidence in the light most favorable to the verdict. (People v. Albillar, supra, 51 Cal.4th
at p. 60 [“We presume every fact in support of the judgment the trier of fact could have
reasonably deduced from the evidence.”].) Defendant correctly points out that several
witnesses’ in-court testimony differed from statements made in prior interviews. Jurors
however were not required to rely only on the victims’ in-court testimony. They could
rely on all evidence admitted to determine whether the gang enhancement was true.
Similarly, a hypothetical posed to an expert may be based on any evidence admitted at




                                             7
trial. (People v. Boyette (2002) 29 Cal.4th 381, 449.) Defendant’s challenge to the
sufficiency of the evidence for the gang enhancement lacks merit.3
2. The Case Must Be Remanded for Resentencing
       As noted, defendant was sentenced to an aggregate 153-year-to-life term. For the
robbery of Buggs (count 2), defendant was sentenced to the high term of five years plus a
20-year enhancement pursuant to section 12022.53, subdivision (c). The court stayed
sentence on the assault with a firearm on Buggs (count 3) pursuant to section 654. It
ordered the term of seven years for the assault and use of the firearm on Juarez to run
concurrently. The court stayed sentence on the possession of a firearm by a felon (count
9).
       For the attempted murder of Sosa (count 10), the court sentenced defendant to life
in prison with a minimum of 15 years pursuant to section 186.22, subdivision (b)(1)(C)
and a consecutive 25-year sentence pursuant to section 12022.53, subdivision (d).
       For the attempted murder of Esparza and Acosta, Osegueda, and Santiago (counts
11 through 14) the court sentenced defendant to life in prison with a minimum 15 years
for the section 186.22, subdivision (b)(1)(C) allegation and 25 years for the section
12022.53, subdivision (d) allegation. The court ordered the attempted murder
convictions in counts 11, and 13 to run consecutively and the attempted murder
convictions in counts 12 and 14 to run concurrently.
       For the assault with a semiautomatic firearm (count 15) defendant was sentenced
to one year four months. The court sentenced defendant to an additional three years four
months for the section 12022.5 enhancement for use of a firearm, and the same time for
the gang allegation. Pursuant to section 654 the court stayed the sentence on the



3      Defendant does not challenge the gang enhancement on the assault with a
semiautomatic (count 15). Substantial evidence supported that enhancement. Defendant
pointed the gun at Veliz after shooting at the rival gang members when he saw Veliz
standing outside her home. Such conduct solidifies his gang’s reputation and thereby
benefits his gang. It also improves defendant’s position in his gang because it shows he
was putting in work for his gang.


                                             8
remaining counts—two counts of shooting at an inhabited dwelling and one count of
being a felon in possession of a firearm. The parties point out several sentencing errors.
A. Presentence Conduct Credit
       First, the parties agree that defendant was entitled to seven additional days of
conduct credit. The court should have awarded 1,078 days instead of 1,071 days of
conduct credit. Defendant was arrested November 17, 2010, and was sentenced June 11,
2013. He therefore was entitled to 938 days of actual credit and 140 days of conduct
credit. (§ 2933.1 [defendant convicted of violent felony shall accrue no more than 15
percent of worktime credit].)
B. The Court Improperly Imposed Two Firearm Enhancements on the Assault with a
Semiautomatic Firearm (Count 15)
       In People v. Rodriguez (2009) 47 Cal.4th 501, 504, our Supreme Court held that a
defendant cannot be punished for the use of a firearm under both section 12022.5,
subdivision (a) and section 186.22, subdivision (b)(1)(C). It is undisputed that because
here the court imposed both enhancements on the conviction for assault with a
semiautomatic firearm, the case must be remanded for resentencing. (Rodriguez, at
p. 509; see also People v. Martinez (2012) 208 Cal.App.4th 197, 200.)
C. Additional Considerations for Remand
       The Attorney General identifies other sentencing errors, which defendant does not
dispute. As the Attorney General argues, upon remand the court should correct the errors
and ensure that the abstract of judgment is consistent with the sentence imposed.
       For example, the sentence for assault with a semiautomatic firearm (count 15) was
not consistent with the court’s stated intent of one-third the midterm (six years). It was
unclear whether the court stayed the section 12022.7, subdivision (a) enhancement on
counts 10 and 13 (attempted murder of Sosa and Osegueda). The court appeared to
sentence defendant under section 186.22, subdivision (b)(5) for the attempted murders
but referenced section 186.22, subdivision (b)(1)(C). Section 186.22, subdivision (b)(5)
applies when the defendant has been convicted of a felony punishable by life
imprisonment. (People v. Williams (2014) 227 Cal.App.4th 733, 740.) Finally, the


                                             9
abstract of judgment failed to identify all enhancements, failed to properly identify the
crime for count 18 possession of a firearm by a felon, and failed to report whether
sentences were ordered consecutively or concurrently, all items which should be
corrected in the amended abstract of judgment.
                                     DISPOSITION
       The judgment of conviction is affirmed. The sentence is vacated and the matter is
remanded for resentencing. Following resentencing, the superior court clerk shall
prepare an amended abstract of judgment and deliver a copy to the Department of
Corrections and Rehabilitation.



                                                  FLIER, J.
WE CONCUR:


       RUBIN, Acting P. J.



       GRIMES, J.




                                             10
