Thursday, October 28, 2010
S.C. to Review Sentencing Issues in Gang-Related Shootings
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday agreed to resolve a conflict within the Court of Appeal over whether a defendant convicted of criminal street gang participation can receive consecutive sentences for that offense and for the underlying crime.
The justices, at their weekly conference in San Francisco, voted 6-0 to grant review in People v. Mesa (2010) 186 Cal.App.4th 773, decided July 13. Justice Carol Corrigan was absent and did not participate.
Tommy Angel Mesa—identified in court as a member of the Coroneros set of the Corona Varios Locos gang—was convicted of two counts of assault with a firearm, three counts of being a felon in possession of a firearm, one count of being a felon in possession of ammunition, and two counts of actively participating in a criminal street gang.
The convictions arose from two separate 2007 shootings in Corona. The first victim said he was standing outside his apartment with his son and his son’s date, waiting for the girl’s mother, when Mesa, part of a group of five or six males, confronted him and accused him of “walking tough” in Mesa’s neighborhood, which the victim understood to mean that Mesa and the others were gang members.
The victim, identified only as Ghalen W., said he ran for his car as Mesa pulled out a gun and began shooting. He said he heard three shots and was hit once, in the side, the bullet exiting on the left side of his torso.
The second victim, Alvin Pierre, was shot as he rode his bicycle to a shopping center in Carona. The bullet shattered his left testicle, which had to be removed.
When police came to Mesa’s home to arrest him, they found him hiding in a closet, wearing a bulletproof vest and an empty holster, with a gun magazine and 10 rounds of ammunition in his pocket and a .45 caliber handgun in the closet. That gun was used to fire shell casings found at the scenes of both shootings, an expert testified.
Police also found a duffel bag containing a loaded rifle, as well as additional rounds of ammunition.
Jurors deadlocked as to attempted murder charges with respect to both victims but found Mesa guilty on all other counts, including the three firearm possession counts, identifying a .45 caliber handgun as the weapon in his possession.
The jury also found that Mesa committed great bodily harm to both victims and personally used a firearm in both shootings; and that the first shooting and Mesa’s possession of a firearm during that shooting were both gang-related. Mesa admitted two prior convictions for which he served prison terms.
Riverside Superior Court Judge Helios J. Hernandez sentenced the defendant to 39 years, eight months in prison.
The sentence included enhancements of 23 years related to the first shooting—three years for causing great bodily injury, 10 years for using a firearm, and 10 years for committing the crime on behalf of a gang. For possession of a firearm during that shooting, he was sentenced to eight months in prison, plus 16 months on the gang enhancement.
For each of the other two firearm counts, he received a consecutive eight-month sentence, and there was an eight-month consecutive sentence for possession of ammunition.
The Fourth District Court of Appeal agreed with the defense as to two claimed sentencing errors—that the court could not impose three separate enhancements on the first assault count and that the imposition of consecutive sentences for possession of the same firearm on three separate occasions violated Penal Code Sec. 654’s ban on multiple punishments for the same crime where the defendant was not shown to have relinquished possession of the gun in between.
But the panel, in an opinion by Justice Patricia Benke for Div. One, said the trial court was within its authority in punishing the defendant for assault and participation in a criminal street gang, and for possessing a firearm and ammunition at the same time.
In adopting the California Street Gang Terrorism and Prevention Act, sometimes referred to as the STEP or Street Gang Act for short, the Legislature recognized that gang members commit individual crimes that are part of a larger pattern of gang activity that terrorize not only the individual victims but the surrounding communities, Benke explained.
“[N]othing in section 654 prevented Mesa from being punished for both the grievous harm he did to Ghalen and Pierre and for the separate terror all of his gang activity, including the shootings, engendered in his community,” the justice wrote.
Benke acknowledged that the panel’s decision was in conflict with People v. Sanchez (2009) 179 Cal.App. 4th 1297. The court in that case held that the defendant could not be convicted of both robbery and street gang participation because “the underlying robberies were the act that transformed mere gang membership—which, by itself, is not a crime—into the crime of gang participation,” so that the offenses involved the same “intent and objective” and were thus a single crime for purposes of Sec. 654.
Benke disagreed, saying that “liability under the [gang] statute and liability for an underlying offense will in most instances involve distinct criminal objectives and quite distinct impacts.”
“The shots Mesa fired had a direct and devastating impact on Ghalen; however, in light of the express purposes of the Street Crime Act, we cannot turn a blind eye to the separate and unique impact Mesa’s shots no doubt had on [Ghalen’s son] Jeron, his date and anyone else in the vicinity who witnessed the shooting or later heard about it. They plainly had to have been terrorized by the shooting and their fear of the gang had to have been amplified. The same is true with respect to the shooting of Pierre. Pierre not only suffered grave harm, but any of the shopkeepers, their employees or members of the public who witnessed the shooting were no doubt terrorized by the act.”
The panel also ruled that a criminal defendant can be punished for both possessing a firearm and possessing ammunition in the same incident.
Copyright 2010, Metropolitan News Company