Tuesday, June 5, 2012
Page 4
State Supreme Court Cuts Sentence in Gang-Related Shooting Case
Justices Cite Proscription on Multiple Punishments for Same Crime, Resolves Split in Court of Appeal
By a MetNews Staff Writer
A defendant convicted of criminal street gang participation cannot receive separate sentences for that offense and for the underlying crime, a divided state Supreme Court ruled yesterday.
Resolving a split within the Court of Appeal, the high court said the separate sentences imposed on Tommy Angel Mesa by Riverside Superior Court Judge Helios (Joe) Hernandez violated Penal Code Sec. 654. The statute prohibits imposition of multiple punishments for the same crime.
The ruling effectively cuts 16 months off Mesa’s sentence of 39 years, eight months in prison.
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.
Separate Shootings
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.
His 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.
Fourth District Opinion
The Fourth District Court of Appeal, 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.
Benke reasoned that 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.
“[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.
At least one other appellate panel concluded that separate punishments were prohibited, while at least three others said they permitted.
Justice Goodwin H. Liu, in his opinion for the Supreme Court, endorsed the reasoning of Sanchez.
He rejected the argument that the rule the court was establishing would eviscerate the substantive offense of criminal street gang participation. “It would simply limit punishment for the offense to circumstances in which the defendant’s willful promotion, furtherance, or assistance of felonious conduct by a gang member was not also the basis for convicting the defendant of a separate offense—for example, when there are sufficient grounds to convict a defendant under section 186.22, subdivision (a), but insufficient grounds to independently convict the defendant as an accessory.”
The Legislature, he noted, has already made the fact of gang activity punishable separately from the underlying crime, by creating the 10-year enhancement, which Mesa received in this case. Liu emphasized that in this particular case, there was no evidence of Mesa having “promoted, furthered, or assisted” felonious gang activity other than the evidence of the other offenses of which he was convicted.
Chief Justice Tani Cantil-Sakauye and Justices Kathryn M. Werdegar and Carol Corrigan joined in the opinion.
Justice Ming Chin dissented. He acknowledged the issue was “a close question,” but essentially agreed with Benke. Mesa’s participation in the street gang, he said, was a criminal act apart from the shootings.,
“On each occasion, two separate acts are being punished—(1) a specific assault (or possession of a firearm), and (2) participation in a criminal street gang—not one act ‘that is punishable in different ways by different provisions of law.’”
The case was argued in the high court by Richard de la Sota, of Manhattan Beach, by appointment, for the defendant and by Deputy Attorney General Meredith A. White for the prosecution.
The case is People v. Mesa, 12 S.O.S. 2712.
Copyright 2012, Metropolitan News Company