P. v. Ibarra CA4/2

Opinion

Filed 5/8/13 P. v. Ibarra CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E054766

v. (Super.Ct.No. FSB902536)

ERIK IBARRA et al., OPINION

Defendants and Appellants.

APPEAL from the Superior Court of San Bernardino County. Annemarie G.

Pace, Judge. Affirmed with directions.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and

Appellant Erik Ibarra.

Michael B. McPartland, under appointment by the Court of Appeal, for Defendant

and Appellant Gabriel Adam Sanchez.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Lilia E. Garcia and Stacy

Tyler, Deputy Attorneys General, for Plaintiff and Respondent. 1 Following a jury trial, defendants and appellants Erik Ibarra (Defendant Ibarra)

and Gabriel Adam Sanchez (Defendant Sanchez) were convicted of first degree murder

(Pen. Code,1 § 187, subd. (a)) of Michael Edayan (the Victim); robbery (§ 211) of the

Victim and four others; and attempted premeditated murder (§§ 187, subd. (a), 664) of

the four others. The jury also found that with respect to the murder and robbery of the

Victim, Defendant Ibarra personally and intentionally discharged a firearm that killed

him (§ 12022.53, subd. (d)), and that Defendant Ibarra personally used, and personally

and intentionally discharged, a firearm in the commission of all the crimes. (§ 12022.53,

subds. (b), (c).) Finally, the jury found that Defendant Sanchez knew his codefendant

was armed during the commission of all of the charged crimes. (Former § 12022, subd.

(a)(1).)

On October 7, 2011, Defendant Ibarra was sentenced to state prison for an

indeterminate term of 75 years to life, plus a consecutive term of 106 years 8 months.

Defendant Sanchez was sentenced to state prison for an indeterminate term of 50 years to

life plus an additional consecutive term of one year. Both appeal. Defendant Ibarra

contends the trial court committed reversible error by allowing an expert to testify about

his purported gang motive or gang intent, and the abstract of judgment incorrectly

describes one sentence enhancement. Defendant Sanchez contends he received

ineffective assistance of counsel when his attorney failed to ask the trial court to dismiss

his prior conviction alleged under the “Three Strikes” law, and section 654 precludes

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 imposition of concurrent terms on the five robbery convictions. Defendant Sanchez

further joins in any argument made by Defendant Ibarra.

I. STATEMENT OF FACTS

Given Defendants’ issues on appeal, a shortened version of the facts will suffice;

however, further facts will be provided throughout the opinion as needed.

On the late evening of June 14, 2009, the Victim and Bryan Juarez, Michael

Hilliard, Juan Monge, and Juan Nieto went to Blair Park in San Bernardino to do some

target practicing with their airsoft2 guns. While at the park, Defendants approached

them. Defendant Ibarra had a black semiautomatic firearm pointed at them as Defendant

Sanchez went through everyone’s pockets. As Defendants began to walk away, the

Victim called out something to the effect of, “hey, if you put the gun down, we can

fight.” Defendant Ibarra, followed by Defendant Sanchez, immediately “[t]urned around

and took a few steps closer [to the Victim] and fired” into his face. Defendant Ibarra then

opened fire on the others. The Victim died.

II. GANG EXPERT TESTIMONY

Defendants contend the trial court erred in admitting testimony they were

affiliated with a gang. They argue the evidence was irrelevant and unduly prejudicial,

and that its admission violated their constitutional rights to due process and a fair trial.

2 Airsoft guns fire only small plastic pellets with a force inadequate to break skin. They are toy “replicas” of guns that bear a distinct bright-orange plastic piece at the end of the barrel.

3 A. Further Background Information.

Prior to trial on July 19, 2011, the People moved to admit gang evidence to show

that Defendants were “both gang members from the same gang out of Monrovia,” and

they had been convicted of a gang-related battery which they committed in concert. The

prosecutor argued the evidence was relevant to show (1) Defendant Sanchez’s knowledge

that (a) violence was the “natural and probable consequence” of committing a crime with

Defendant Ibarra and (b) Defendant Ibarra was armed on the night in question; and

(2) Defendant Sanchez’s “intent” and “plan” in committing the charged crimes with his

fellow gang member. She also argued the evidence was relevant to the underlying

reason, or motive, for the fatal shooting, namely, that as a gang member accompanied by

another gang member, Defendant Ibarra was bound by code and a desire for personal

glory to react to the Victim’s challenging comment with deadly force.

The court remarked that Defendant Ibarra’s gang membership did not “necessarily

go to premeditation” but agreed that it was relevant to motive. The prosecutor continued

that the gang-related motive was not limited only to elevating the gang’s and Defendant

Ibarra’s own status, but included instilling fear in the community and discouraging

witnesses from cooperating with the police.

The court clarified: “So with respect to [Defendant] Ibarra, there’s motive,

increased status in the gang . . . [and] witness fear and intimidation? [¶] . . . [¶] . . .

[And w]ith respect to [Defendant] Sanchez, it’s— [¶] . . . [¶] . . . natural and probable

cause—foreseeability that he has a gun, that he might use the gun, and the fact that they

4 have previously committed a crime together, which shows or can show that they planned

this robbery together?” The prosecutor responded affirmatively.

Defendant Ibarra’s counsel objected that the evidence was irrelevant. He argued

that the evidence would only have been relevant had there been a gang charge or

allegation. He denied that the evidence tended to establish motive and characterized the

prosecution’s argument as an illogical leap that a gangster would have a special reason

for pulling the trigger. The court clarified that the expert would simply testify to “how

important not being . . . disrespected is to a gang member and that that sort of disrespect

will be met with violence, especially when it’s committed in front of another gang

member.” The court again remarked that it did not “buy the premeditation argument,”

but stated that the evidence was relevant to Defendant Ibarra’s motive for shooting.

Defendant Ibarra’s counsel countered that the evidence was “extremely

prejudicial” and that it would permit the prosecutor to “present a picture to the jury of a

violent gang member . . . .” He again asserted that the evidence would only have been

admissible had Defendants been charged with a gang crime. The court stated: “It also

becomes relevant . . . if some of th[e] witnesses are fearful about testifying because they

suspect these people are gang members . . . so I think it’s relevant for motive and witness

reactions and fear.” The prosecutor noted that “[w]ith respect to prejudice,” the charged

crimes, namely, that “[Defendant] Ibarra shot some kid point-blank in the face during a

robbery,” were far more egregious than the anticipated gang evidence, so the latter

evidence was unlikely to emotionally sway jurors.

5 Defendant Sanchez’s counsel argued that the evidence was inadmissible

“character evidence” proscribed by Evidence Code section 1101, subdivision (a). He

acknowledged the exceptions for “knowledge, intent, motive, plan, or scheme,” but

contended there was “no question about the motive for the robbery,” or the “intent of the

shooter.” According to his interpretation of the case, the motive was obvious from the

fact that “the victim made a statement, and that [Defendant] Ibarra responded to that

statement.” He also complained that the People were not required to prove motive, and

they had “plenty of evidence as to the issues that they have to prove.” Finally, he

repeated the argument of Defendant Ibarra’s counsel that only a gang crime charge or

gang allegation would have made gang evidence relevant.

The court found it significant that Defendants had committed prior crimes together

and pointed out that the People sought to introduce the gang evidence to show the motive

not for the robbery but for the shooting. The court then took the matter under

submission.

A few days later, on July 20, 2011, prior to the start of trial, the court ruled the

gang evidence was “admissible as to [Defendant] Ibarra regarding motive with respect to

the murder charge. [¶] It’s significant that one of those gang priors that the defendants

committed together and, therefore, the identity of each of them in this crime, it goes to

whether they had a plan or scheme to commit the robbery ahead of time. [¶] It goes to

[Defendant] Sanchez regarding knowing whether the codefendant was armed, if, in fact,

he was, and it goes to whether he would have known that the commission of murder was

a natural and probable consequence of an armed robbery. . . .” The court also expressly

6 found that “the probative value was not substantially outweighed by the danger of undue

prejudice . . . .”

During trial, Officer Yolanda Gutierrez testified as a gang expert. She testified

that victims of and witnesses to crimes committed by gang members tend not to

cooperate with the investigation because they “fear . . . what might happen to them or

their family.” “Monrovia Nuevo Varrio” (MNV) is a Hispanic criminal street gang based

in Monrovia. Members, including Defendants, display “MNV,” “MNVR” (Monrovia

Nuevo Varrio Rifa), and “X” with a number three tattoos. Defendant Ibarra is known as

“Stomps” or “Stomper,” and Defendant Sanchez is known as “Lucky” and “Lil’ Vago.”

Defendant Sanchez was convicted in 2004 of robbery and assault, and both crimes

were found to have been committed for the benefit of a criminal street gang. He also was

convicted of being a felon in possession of a firearm, and that crime, too, was found to

have been committed in association with a criminal street gang. Defendants together

committed a battery, which was found to have been committed for the gang, and

Defendant Ibarra was convicted of intimidating a witness, which crime also was found to

have been committed for the gang.

Based on Defendants’ conduct and tattoos, as well as information provided by

other officers who encountered Defendants on the street, Officer Gutierrez opined they

were MNV gang members. She explained that when a gang member is challenged by

someone, he must respond. A response to perceived disrespect would be even more

important if another gang member were present to witness the confrontation. Gang

members back one another up in the commission of crimes. They “communicate with

7 one another. If one has a gun, the other is going to know.” Officer Gutierrez opined that

Defendant Sanchez knew that Defendant Ibarra had a gun. In response to the

hypothetical of two men from Monrovia committing crimes in San Bernardino, the

officer said that such conduct would inure to the benefit of MNV by raising its profile in

the surrounding communities and increasing the gang’s stature. She testified that the

commission of the robbery at Blair Park enhanced Defendant Ibarra’s reputation in the

gang. Regarding the Victim’s statement about putting down the gun, Officer Gutierrez

stated that Defendant Ibarra was “being called out,” and that had he failed to respond to

the challenge, the gang would have found out. The prosecutor then asked, “What would

be the motive [of] . . . shooting at . . . the other young men?” Officer Gutierrez replied,

“To eliminate any possible witnesses.” Similarly, when Defendant Sanchez was in the

getaway car, he told Defendant Ibarra’s then girlfriend and another girl they had “better

not say anything about what happened to anybody and that whatever happened stays with

the people . . . in the car.” Officer Gutierrez opined it was reasonable for the girls to take

Defendant Sanchez’s statement as a threat.

On cross-examination, Officer Gutierrez acknowledged that Blair Park is not in

the territory claimed by MNV, and that the commission of a crime outside the gang

territory could be either good or bad for the member depending on the gang’s policy

about off-territory crimes. She reiterated that gang members work to “instill fear” in the

community.

The jury was instructed that it was not required to accept Officer Gutierrez’s

opinions as true or correct. The jurors were further instructed that gang evidence could

8 only be considered for the limited purposes of (1) deciding Defendants’ identity or

motive; or whether Defendant Sanchez had plan or scheme to commit robbery, knew that

Defendant Ibarra was armed, or knew that murder or attempted murder was a natural and

probable consequence of robbery committed in concert with Defendant Ibarra; and (2)

evaluating witness credibility. The jury was admonished not to consider the evidence for

any other purpose or conclude that Defendants were of bad character or disposed to

commit crime.

B. Applicable Law

“California courts have long recognized the potentially prejudicial effect of gang

membership. As one California Court of Appeal observed: ‘[I]t is fair to say that when

the word “gang” is used in Los Angeles County, one does not have visions of the

characters from the “Our Little Gang” series. The word gang . . . connotes opprobrious

implications. . . . [T]he word “gang” takes on a sinister meaning when it is associated

with activities.’ [Citation.] Given its highly inflammatory impact, the California

Supreme Court has condemned the introduction of such evidence if it is only tangentially

relevant to the charged offenses. [Citation.] In fact, in cases not involving gang

enhancements, the Supreme Court has held evidence of gang membership should not be

admitted if its probative value is minimal. [Citation.] ‘Gang evidence should not be

admitted at trial where its sole relevance is to show a defendant’s criminal disposition or

bad character as a means of creating an inference the defendant committed the charged

offense.’ [Citation.]

9 “Thus, as general rule, evidence of gang membership and activity is admissible if

it is logically relevant to some material issue in the case, other than character evidence, is

not more prejudicial than probative and is not cumulative. [Citation.] Consequently,

gang evidence may be relevant to establish the defendant’s motive, intent or some fact

concerning the charged offenses other than criminal propensity as long as the probative

value of the evidence outweighs its prejudicial effect. [Citations.] ‘Evidence of the

defendant’s gang affiliation—including evidence of the gang’s territory, membership,

signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can

help prove identity, motive, modus operandi, specific intent, means of applying force or

fear, or other issues pertinent to guilt of the charged crime. [Citations.]’ [Citation.]

Nonetheless, even if the evidence is found to be relevant, the trial court must carefully

scrutinize gang-related evidence before admitting it because of its potentially

inflammatory impact on the jury. [Citations.]

“[T]he decision on whether evidence, including gang evidence, is relevant, not

unduly prejudicial and thus admissible, rests within the discretion of the trial court.

[Citation.] ‘Where, as here, a discretionary power is statutorily vested in the trial court,

its exercise of that discretion “must not be disturbed on appeal except on a showing that

the court exercised its discretion in an arbitrary, capricious or patently absurd manner that

resulted in a manifest miscarriage of justice. [Citations.]” [Citation.]’ [Citations.] It is

appellant’s burden on appeal to establish an abuse of discretion and prejudice.

[Citation.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 223-225.)

10 C. Analysis

Defendants contend the gang evidence was “wholly lacking in foundation,

speculative, and irrelevant.” (Underlining in original.) They argue that “gang motive or

gang intent was irrelevant to the charged counts and enhancements” because there were

no gang allegations in the information. (Underlining in original.) As such, gang motive

was not needed, nor did any intent to kill “hinge on the presence or absence of a gang

motive . . . .” Moreover, Defendants assert “there was a logical non-gang motive for the

shooting based on a challenge issued by one testosterone-driven young male (already

well aware of the presence of a firearm from the robbery) to another one.” (Underlining

in original.) Viewing the situation as merely a challenge from one caveman to another,

Defendants argue that expert testimony regarding gangs and gang motives was

unnecessary.

In response, the People argue that motive and intent are relevant to explain why

Defendant Ibarra would “walk[] up to an unarmed man and [shoot] him in the face point-

blank for nothing more than his having suggested that [Defendant] Ibarra would not have

been so brazen without his gun.” We agree. Defendants, two armed men, had

successfully robbed five young unarmed men. While one of the five made a verbal

challenge to fight without a gun, why did Defendant Ibarra have to respond so violently?

As the People aptly point out, “[t]he gang expert’s testimony put this otherwise

inexplicably violent response in context.” Namely, Officer Gutierrez explained that

when gang members perceive they have been disrespected, they respond with violence.

The Victim’s verbal challenge was disrespectful to Defendant Ibarra in the presence of

11 another gang member, Defendant Sanchez. Thus, Defendant Ibarra had to defend his

reputation along with that of the gang. The probative value of the gang evidence as to

motive was more than substantial.

Notwithstanding the above, Defendants claim there was no evidence the robbery

or murder was motivated by a desire or intent to benefit the gang. They argue that

(1) there was no evidence the Victim or his friends were from a rival gang, (2) there was

no evidence that gang territory was an issue, and (3) there was no evidence that

Defendants made known their gang affiliation. This argument might have merit if the

only crime charged was robbery. However, the senseless murder of an unarmed young

man, together with the attempted murders of four other young men, under the

circumstances before this court, warrant the introduction of gang evidence.

Regarding Defendants’ gang affiliation, they fault the trial court for allowing

evidence of their prior criminal acts that were gang related, arguing, “these priors [were]

not probative of, or relevant to, [Defendant] Sanchez’s purported ‘knowledge’ about how

[Defendant Ibarra] would act in the park, but [were] inadmissible . . . prior bad acts . . .

[under] subdivisions (a) and (b) of Evidence Code section 1101 . . . .” Again, we

disagree. As the People point out, the prior gang-related crimes show Defendant Ibarra’s

intent to shoot the Victim and the four others, as well as Defendant Sanchez’s knowledge

that Defendant Ibarra was armed, along with Defendant Sanchez’s willingness to commit

violent crimes with his partner.

Finally, Defendants argue that Officer Gutierrez’s opinions that Defendant Ibarra

carried a firearm and shot the Victim with a gang motive or intent violate the rule

12 announced in People v. Killebrew (2002) 103 Cal.App.4th 644, 658, disapproved on

another point in People v. Vang (2011) 52 Cal.4th 1038, 1047, fn 3. However,

“[t]estimony in the form of an opinion that is otherwise admissible is not objectionable

because it embraces the ultimate issue to be decided by the trier of fact.” (Evid. Code,

§ 805.) Rather, the admissibility of expert opinion testimony that embraces the ultimate

issue “‘“depends on the nature of the issue and the circumstances of the case, there being

a large element of judicial discretion involved. . . .”’” (Killebrew, supra, at p. 652.) It is

well settled that in cases where gang offenses and enhancements are alleged, expert

testimony regarding the culture, habits, and psychology of gangs is generally permissible

because these subjects are “‘“sufficiently beyond common experience that the opinion of

an expert would assist the trier of fact. [Citations.]” [Citation.]’ [Citation.]” (Id. at p.

656; see also People v. Gardeley (1996) 14 Cal.4th 605, 617.) For example, an expert

may properly testify concerning “the size, composition or existence of a gang [citations],

gang turf or territory [citations], an individual defendant’s membership in, or association

with, a gang [citations], the primary activities of a specific gang [citations], motivation

for a particular crime, generally retaliation or intimidation [citations], whether and how a

crime was committed to benefit or promote a gang [citations], rivalries between gangs

[citation], gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or

attire [citations].” (Killebrew, supra, at p. 657, fns. omitted.) “A trial court’s

determination as to whether an expert should be allowed to opine about a particular

subject is reviewed on appeal for abuse of discretion. [Citations.]” (People v. Sandoval

(2008) 164 Cal.App.4th 994, 1001.)

13 Here, Officer Gutierrez’s testimony not only helped to explain Defendant Ibarra’s

violent response to the Victim’s verbal challenge, it also helped the jury evaluate witness

credibility. Several witnesses provided conflicting and incomplete accounts of what had

happened when interviewed by the police. Their testimonies at trial were not consistent

with their statements. Absent the gang evidence, the jury could have concluded that the

witnesses were lying. In fact, defense counsel encouraged the jurors to do just that. The

officer’s testimony provided an explanation for the conflicting witness testimonies. She

explained that victims and witnesses to gang crimes normally fail to cooperate with law

enforcement because they fear the gang member or gang will retaliate against them

and/or their families. In fact, gang members go to great lengths to instill this fear in the

community. Here, witnesses testified to their fear.

Regarding Evidence Code section 352, although gang evidence may be

prejudicial, here the probative value far outweighed any prejudicial effect. “‘“Unless the

dangers of undue prejudice, confusion, or time consumption ‘“substantially outweigh”’

the probative value of relevant evidence, a[n Evidence Code] section 352 objection

should fail. [Citation.] ‘“The ‘prejudice’ referred to in Evidence Code section 352

applies to evidence which uniquely tends to evoke an emotional bias against the

defendant as an individual and which has very little effect on the issues. In applying

[Evidence Code] section 352, ‘prejudicial’ is not synonymous with ‘damaging.’”

[Citation.]’ [Citation.] [¶] The prejudice that [Evidence Code] section 352 ‘“is designed

to avoid is not the prejudice or damage to a defense that naturally flows from relevant,

highly probative evidence.” [Citations.] “Rather, the statute uses the word in its

14 etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors.

[Citation.]” [Citation.]’ [Citation.] In other words, evidence should be excluded as

unduly prejudicial when it is of such nature as to inflame the emotions of the jury,

motivating them to use the information, not to logically evaluate the point upon which it

is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In

such a circumstance, the evidence is unduly prejudicial because of the substantial

likelihood the jury will use it for an illegitimate purpose.” [Citation.]’ [Citation.]”

(People v. Scott (2011) 52 Cal.4th 452, 491.)

Given the facts in this case, the gang evidence was mild compared to the actual

crimes. While Defendants describe Defendant Ibarra as acting “rashly, impulsively, or

without careful consideration and thus without deliberation or premeditation,” the record

does not support such description. (Underlining in original.) According to the record,

Defendant Ibarra turned, walked up to the Victim (who had done nothing more than issue

a verbal challenge) and fired right in his face. He then opened fire on the four others who

had not said one word. There was nothing rash or impulsive about Defendant Ibarra’s

actions. The trial court carefully scrutinized the proffered evidence and correctly found

its prejudicial effect did not outweigh its probative value in establishing motive, intent,

plan, and knowledge. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [evidence of

gang membership is admissible to prove specific intent, means of applying force, or other

issues pertinent to guilt of the charged crime].)

15 III. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant Sanchez argues that he received ineffective assistance of counsel (IAC)

when his trial counsel failed to file a motion to strike his prior strike convictions under

People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

In order to establish a claim of IAC, defendant must demonstrate “(1) counsel’s

performance was deficient in that it fell below an objective standard of reasonableness

under prevailing professional norms, and (2) counsel’s deficient representation prejudiced

the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings,

defendant would have obtained a more favorable result. [Citations.] A ‘reasonable

probability’ is one that is enough to undermine confidence in the outcome.” (People v.

Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v.

Washington (1984) 466 U.S. 668, 694.) Hence, an IAC claim has two components:

deficient performance and prejudice. (Strickland v. Washington, supra, at pp. 687-688,

693-694; People v. Williams (1997) 16 Cal.4th 153, 214-215.) If the defendant fails to

establish either component, his claim fails.

When a claim of IAC is made on direct appeal and the record does not show the

reason for counsel’s challenged actions or omissions, the conviction must be affirmed

unless there could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412,

426, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn.

10.)

According to Defendant Sanchez, a Romero motion was warranted because

(1) both his prior convictions of possessing a firearm and misdemeanor battery were

16 serious only because they were committed for the benefit of a street gang; (2) he had not

killed anyone, he had not possessed a firearm, and he was convicted of felony murder

only because of the robbery conviction; and (3) he told Defendant Ibarra to calm down

multiple times. Defendant Sanchez contends there was no detriment to filing such

motion, and because the trial court indicated that he “should be given some leniency

because he was not the shooter . . . there is a reasonable probability that had a Romero

motion been made, the trial court would have dismissed the prior conviction alleged

under the three strikes law so that it could impose a more just sentence.”

The trial court’s discretion to strike a prior conviction pursuant to section 1385 is

limited. (Romero, supra, 13 Cal.4th at p. 528.) The trial court’s discretion to strike a

qualifying strike is guided by “established stringent standards” designed to preserve the

legislative intent behind the Three Strikes law. (People v. Carmony (2004) 33 Cal.4th

367, 377.) “[T]he court . . . must consider whether, in light of the nature and

circumstances of his present felonies and prior serious and/or violent felony convictions,

and the particulars of his background, character, and prospects, the defendant may be

deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as

though he had not previously been convicted of one or more serious and/or violent

felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)

To begin with, the People point out that the trial court, on its own, could have

chosen to strike Defendant Sanchez’s prior conviction. The People argue that by

claiming IAC, Defendant Sanchez “presumes this Court will infer that the lower court

was unaware of its discretion to strike his prior strike.” We do not. The “trial court is

17 presumed to have been aware of and followed the applicable law” when exercising its

discretion. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) Thus, as the People

aptly argue, because the trial court did not dismiss Defendant Sanchez’s prior on its own

motion, “it did not find [Defendant Sanchez] or his circumstances to be so extraordinary

as to take him outside the purview of the Three Strikes Law.”

Notwithstanding the above, we will assume that counsel’s performance was

deficient in not filing a Romero motion. Thus, we consider whether Defendant Sanchez

was prejudiced by the deficient representation, i.e., was there a reasonable probability

that, but for counsel’s failings, defendant would have obtained a more favorable result?

We conclude that there was not. Defendant Sanchez was an active gang member who

had been convicted of possession of a firearm for the benefit of his gang, who had

committed a prior offense with Defendant Ibarra, again for the benefit of their gang, who

willing assisted Defendant Ibarra in the armed robbery of five young unarmed men, late

at night, in a deserted park, who followed Defendant Ibarra when he turned around and

shot the Victim, and who then warned witnesses not to tell anyone what had happened.

Defendant Sanchez does not fit the description of a defendant who should be treated as

being outside the purview of the Three Strikes law. While Defendant Sanchez claims

that “the trial court indicated at the sentencing hearing that [he] should be given some

leniency because he was not the shooter,” we find that the only leniency contemplated by

the trial court was to run the sentences concurrently. As the People point out, the trial

court chose to sentence Defendant Sanchez to the upper term on all of the robbery and

18 attempted murder convictions, notwithstanding the fact that any term imposed would be

doubled by the strike.

Given the above, Defendant Sanchez’s IAC claim fails.

IV. CORRECTING THE ABSTRACT OF JUDGMENT

Defendant Ibarra contends, the People concede, and this court agrees that the

abstract of judgment incorrectly lists count 2’s section 12022.53, subdivision (b)

enhancement as “10-LIFE” rather than as “S” for stayed. In fact, the trial court imposed,

as to count 2, a 10-year enhancement, as one of two “lesser gun allegations,” and then

stayed it pursuant to section 12022.53, subdivision (f). The sentencing minute order

accurately reflects this. Thus, we direct the trial court to correct the abstract of judgment

to reflect the stayed term and to forward a certified copy of the corrected abstract of

judgment to the Department of Corrections and Rehabilitation. This court has the

authority to order the abstract of judgment corrected to conform to the trial court’s oral

pronouncement of judgment. (People v. Zackery (2007) 147 Cal.App.4th 380, 385-386.)

V. SECTION 654

Defendant Sanchez was sentenced to 10 years (the upper term of 5 doubled to 10

for the strike prior) for each of the five robbery convictions and 18 years (9 doubled) for

each of the four attempted murders, all of which to run concurrent to a term of 50 years to

life (25 doubled) for the murder of the Victim, and a consecutive one-year term for the

firearm allegation. He contends, the People concede, and we agree that the trial court

should have stayed the terms on the robberies.

19 When a court imposes a term for felony murder, it cannot impose a term for the

underlying felony offense. (§ 654; People v. Sanchez (2009) 179 Cal.App.4th 1297, 1315

[Fourth Dist., Div. Two], overruled on other grounds as stated in People v. Rodriquez

(2012) 55 Cal.4th 1125, 1137, fn. 8.) This is because the underlying felony is a

statutorily defined element of the crime of felony murder, and is thus the same act which

makes the killing first degree murder. (People v. Sanchez, supra, at p. 1315.)

Furthermore, section 654 bars punishment for both a greater offense that is found by the

jury to be a natural and probable consequence of an underlying felony, and that

underlying felony itself. (People v. Bradley (2003) 111 Cal.App.4th 765, 769-772.)

Here, because Defendant Sanchez was found guilty of felony murder committed during

the robbery of the Victim, and the attempted murders of the four others as a natural and

probable consequence of the robbery of each one, the trial court could impose only one

term for each victim, i.e., the one corresponding to the crime that carried the greater

punishment. Thus, the trial court should have stayed the terms on the robbery

convictions.

VI. DISPOSITION

The superior court is directed to issue an amended abstract of judgment for

Defendant Ibarra to reflect that as to count 2, the 10-year enhancement under section

12022.53, subdivision (b), is stayed pursuant to section 12022.53, subdivision (f). The

superior court is also directed to modify the judgment as to Defendant Sanchez to stay the

terms on his robbery convictions pursuant to section 654 and to amend the abstract of

judgment accordingly. The court is further instructed to forward certified copies of each

20 defendant’s amended abstract of judgment to the Department of Corrections and

Rehabilitation. In all other respects, each defendant’s judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST J. We concur:

RAMIREZ P.J.

RICHLI J.