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FACTUAL AND PROCEDURAL BACKGROUND

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FACTUAL AND PROCEDURAL BACKGROUND Powered By Docstoc
					Filed 12/18/09           P. v. West CA3
                                            NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

                                       THIRD APPELLATE DISTRICT

                                                  (Sacramento)

                                                          ----




THE PEOPLE,                                                                                  C057544

                   Plaintiff and Respondent,                                         (Super. Ct. No.
                                                                                        07F00398)
         v.

LAMONT RASHAD WEST,

                   Defendant and Appellant.




         Following a dispute with a fellow gang member, defendant

Lamont Rashad West drove by a residence, pointed a handgun at

the house, and fired three times.                                  An information charged

defendant with willful, unlawful, and malicious discharge of a

firearm at an inhabited dwelling; possession of a nine-

millimeter handgun by a felon; and child endangerment.                                                     A jury

found defendant guilty on all counts.                                     Sentenced to 15 years to

life in state prison, defendant appeals, contending (1) gang

expert testimony was improperly admitted, (2) lack of sufficient
evidence to support the gang enhancement, (3) the court erred in


                                                             1
admitting statements by fellow gang members, (4) lack of

sufficient evidence of child endangerment, (5) instructional

error, and (6) sentencing error.       We shall affirm the judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND

     Defendant, also known as “No No,” was a member of the

Nogales Gangster Crips, a criminal street gang.      Two of

defendant‟s companions, Kenyatta Hudson, also known as “Old

Man,” and Paul Bell, also known as “P-Loc,” belonged to the

Nogales Gangster Crips as well.

     Following an argument among the three men, defendant drove

to P-Loc‟s house, stopped the vehicle, fired his handgun three

times toward the residence, and drove away.      When police

officers who heard the shots pulled defendant over, they

discovered a loaded handgun and four children, including an

infant, in the vehicle.

     An information charged defendant with the willful,

unlawful, and malicious discharge of a firearm at an inhabited

dwelling (Pen. Code, § 246—count one),1 possession of a nine-
millimeter handgun by a felon (§ 12021, subd. (a)—count two),

and felony child endangerment (§ 273a, subd. (a)—counts four

through seven).2    The information also alleged, in connection

with counts one and four through seven, that the crimes were




1  All further statutory references are to the Penal Code unless
otherwise indicated.
2  Count three named a codefendant, whose trial was later severed
from defendant‟s.


                                   2
committed for the benefit of a criminal street gang.    (§ 186.22,

subd. (b)(1).)    It was also alleged, in connection with counts

four through seven, that defendant personally used a handgun.

(§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1).)

    A jury trial followed.    The following scenario emerged.

    In the winter of 2007 D. Brooks (Brooks), defendant‟s

girlfriend, lived with her three children:    a six-year-old son

(D.), a five-year-old, and a three-year-old.    Brooks‟s cousin,

L. Townsend (Townsend), and her nine-month-old son (K.) also

stayed at the residence.    In addition, defendant occasionally

stayed at Brooks‟s residence.
The Altercation

    On January 10, 2007, Old Man, P-Loc, and defendant were at

Brooks‟s residence.    A couple of days before, Old Man had

“slapped P-Loc up.”   P-Loc told defendant about the fight.      The

evening of the 10th, defendant asked P-Loc who his “Big Homey,”

or mentor within the gang, was.   P-Loc told defendant that Old

Man was his Big Homey, an answer which angered defendant.     After
arguing for a few minutes, the trio left.

    Defendant later returned with Townsend‟s boyfriend, Douglas

Bell.   Douglas Bell was also known as “Baby No No.”   Everyone

then went to bed.
The Shooting

    The next morning, Townsend saw a handgun on the kitchen

counter next to defendant.    Brooks got up and got her son D.
ready for kindergarten.    Defendant, Bell, Townsend and her son,

and Brooks and her three children left in Brooks‟s van.


                                  3
    After taking D. to school, they drove to a liquor store.

Brooks drank and became intoxicated.   Later that afternoon,

after picking up D. from school, they went to the home of

Brooks‟s brother, where they met up with Mauryce Liggins.      A

half hour later, everyone left in the van to go to Wal-Mart to

get some diapers.

    Defendant drove the van, and Brooks sat in the front

passenger seat.   Townsend sat in the backseat with Bell and next

to the infant car seat holding K.    D. sat on the floor of the

van, behind the driver‟s seat.   His two sisters sat next to him

on the floor.   Liggins sat on the van‟s floor next to the

sliding side door.

    Defendant drove the van to P-Loc‟s house.    Defendant

stopped the vehicle, drew his handgun, leaned out of the

driver‟s window, pointed his weapon directly at P-Loc‟s house,

and fired three times.   Liggins pointed his handgun out the

sliding door window and shot three times into the air.

    Defendant and Liggins frightened Townsend, who believed her
son was in danger.   The other three children appeared to be in

shock after the shooting started.
The Aftermath

    After the shooting, defendant drove away.    Defendant passed

Brooks the handgun and she put it in the glove compartment.

Liggins hid his handgun under the backseat where Townsend and

her son sat.
    Nearby officers on patrol heard the shots.    About five

seconds later, the officers saw defendant‟s van, followed it for


                                 4
two to three minutes, and then stopped it.    The officers

activated their overhead lights and made a high-risk stop at

gunpoint.    At least five officers and one canine officer

assisted in the stop.

    Officers ordered defendant to hold his hands out of the

driver‟s window.    Defendant complied but put one hand back

inside.    Officers repeatedly ordered him to put both hands out

of the window.    When defendant finally complied, he held a bag

in his hand.

    The officers ordered defendant to drop the bag.     Defendant

did so.    They ordered defendant out of the van and put him on

the ground.

    Officers ordered Brooks out of the van and took her into

custody.    Liggins, Bell, and Townsend were all pulled from the

van and placed on the ground.

    Officers ordered anyone left in the van to get out, and

Brooks told them the four children remained inside.     The three

older children got out of the van and officers took them away.
One officer found nine-month-old K. in his car seat and removed

him from the van.

    Another officer found a loaded Czechoslovakian model 75

semiautomatic handgun in the van‟s glove compartment.    The gun

had been reported missing in 2000.    The handgun contained one

round in the chamber and eight rounds in the magazine.    The

magazine held up to 15 rounds.    Officers found two bullet cases
inside the van, one outside the van, and an unloaded .40-caliber

semiautomatic handgun beneath the van‟s backseat.


                                  5
    Six-year-old D. told an officer that defendant was known

as No No and that defendant and D.‟s mother argued when

defendant asked where his gun was.    D. told the officer that

defendant cursed at and pushed his mother, hurting her.   The boy

also told the officer that defendant put his hand out of the

window of the van and shot his gun.    When officers stopped the

van, defendant said to his girlfriend, Brooks, “I‟m going to

kill you all if your kids tell the police.    I don‟t care.   I‟ll

go to jail.”

    The children were taken to the Children‟s Receiving Home.

A clinician who treated the three older children diagnosed them

as suffering from “acute stress disorder” that progressed into

“post-traumatic stress disorder” stemming from witnessing the

shooting.    The clinician met with the children several times a

week at the receiving home and had follow-up meetings later when

they were placed into foster care.

    During their follow-up investigation, officers found

several bullet holes in the front face of P-Loc‟s residence and
in front of a window.    The bullet holes appeared old, and P-Loc

confirmed they had occurred during a previous drive-by shooting.

    Officers obtained a search warrant and searched defendant‟s

residence.    They recovered several photos of defendant dressed

in gang attire and making gang hand signs.    Officers also found

a nine-millimeter ammunition carton containing two live rounds.
Defense Case

    Defendant did not testify.    Defendant provided testimony by

a gang expert who disputed the testimony of the prosecution‟s


                                  6
gang expert that the shooting was committed for the benefit of

the Nogales Gangster Crips.
Verdict and Sentencing

    Prior to the end of trial, the court granted defendant‟s

motion to dismiss count seven (child endangerment) because of

insufficient evidence.

    The jury found defendant guilty of counts one, two, four,

five, and six.   They also found true the gang enhancement

allegation as to count one and found the personal gun use

enhancements true as to counts four, five, and six.

    The court sentenced defendant to a state prison term of

15 years to life on count one, plus a concurrent midterm of two

years on count two; concurrent midterms of four years each for

counts four, five, and six; and concurrent midterms of four

years each for three personal gun use enhancements.    Defendant‟s

sentence totaled 15 years to life.    The trial court also imposed

a $10,000 restitution fine pursuant to section 1202.4,

subdivision (b) and a $10,000 parole revocation restitution fine
pursuant to section 1202.45.    Defendant filed a timely notice of

appeal.
                              DISCUSSION

                         GANG EXPERT TESTIMONY

    Defendant argues the prosecution‟s gang expert improperly

testified that defendant specifically intended to benefit the

Nogales Gangster Crips when he committed his crimes.   According
to defendant, although the expert responded to a hypothetical




                                  7
question, the expert referred to defendant, not to a

hypothetical person, in responding.
Background

    At trial, Townsend testified about the altercation among

defendant, P-Loc, and Old Man.   Defendant asked P-Loc who his

“Big Homey” was.   P-Loc said Old Man was his “Big Homey.”     The

trio began to argue.

    The prosecution presented testimony by Detective Justin

Johnson, a gang expert.    Johnson testified that the term “big

homey” refers to someone in the gang who mentors other gang

members, teaching them to commit crimes, and who is respected by

other gang members.    According to Johnson, because defendant had

recently supported P-Loc, P-Loc‟s designation of Old Man as his

“big homey” was an act of disrespect toward defendant.      In the

milieu of gangs, Johnson testified, what might appear a minor

argument takes on a greater significance.

    During Johnson‟s testimony, the trial court advised the

prosecutor to phrase his questions in hypothetical terms.      The
prosecutor then asked the following series of hypothetical

questions, which defendant objects to on appeal.

    “[The Prosecutor]:    Hypothetically, assume that the

argument between P-Loc and Old Man and [defendant] happened the

way Ms. Townsend laid it out in her interview.   Assume that the

defendant was . . . Brook‟s [sic] boyfriend, and he took her,

her three kids, . . . Townsend, Doug Bell and . . . Townsend‟s
nine-month-old baby, everyone got in the blue van belonging

to . . . Brooks.   Assume further that he drove down Belden, took


                                  8
a left on Los Robles, stopped in front of 1125.    And assume

hypothetically he took his gun, fired several rounds off toward

P-Loc‟s house while Mauryce Liggins, who was also in the van,

shot several rounds out his window.    Hypothetically, assume that

he then kept on driving, and then the police stopped him and

hypothetically found the two guns.    [¶]   Assume all of that, and

also take into account your knowledge of the defendant, your

knowledge of the Nogales Gangster Crips, do you have an opinion

as to why this was done?

    “[Gang Expert]:     It was done basically to gain respect back

when he was disrespected in front of his other gang members.”

    The prosecution then asked how this type of offense

benefitted defendant.    Johnson replied that it helped

defendant‟s reputation, adding that defendant did not conceal

his identity because he wanted everyone in the gang world to

know he had done it.    The witnesses to defendant‟s act could

include little children.    Defendant‟s action also benefited the

Nogales Gangster Crips gang:    it enhanced the general reputation
of the gang, letting those in the gang community know they are

willing to discipline their own members harshly.     In addition,

Johnson testified that members of the general community would be

less inclined to come forward out of fear of gang retaliation.
Discussion

    According to defendant, the prosecution‟s questions failed

to provide a proper foundation for the expert‟s testimony.
Instead of propounding questions based on the assumed actions of

a hypothetical person, the accepted method of examining a gang


                                  9
expert, the court permitted the prosecutor to ask questions

based on the prosecution‟s version of defendant‟s own conduct.

Defendant argues the resulting testimony improperly implied

defendant had the specific intent to commit the charged

offenses.   This was error, according to defendant, because

“[q]uestions about a hypothetical person‟s intent are lawful;

questions about the defendant‟s intent are unlawful.”   The error

was prejudicial because “[i]n the absence of the expert‟s

impermissible testimony, the evidence fails to show [defendant]

had the specific intent to benefit his gang when he shot

at . . . a fellow gang member.”

    While the expert‟s testimony certainly explained

defendant‟s motive for committing the offense, we do not

construe it as a comment on defendant‟s specific intent.

Moreover, defendant‟s prejudice argument misses the mark.     As

hereafter discussed, specific intent to benefit the gang is not

an element of the gang enhancement.    Nevertheless, the testimony

is relevant to prove that the offense was committed for the
benefit of, at the direction of, or in association with a

criminal street gang, and for that reason, we will address the

substance of defendant‟s argument.

    A gang expert may testify regarding the culture, habits,

and psychology of gangs since these subjects are sufficiently

beyond the jury‟s common experience and expert opinion assists

the jury in evaluating the evidence.   (People v. Valdez (1997)
58 Cal.App.4th 494, 506.)   An expert may testify about the

makeup of a gang, the motivation for a particular crime, and


                                  10
whether a crime was committed to benefit or promote the gang.

(People v. Killebrew (2002) 103 Cal.App.4th 644, 656-658

(Killebrew).)

    The expert‟s opinion may be premised on facts given in a

hypothetical question that asks the expert to assume their truth

so long as the question is rooted in facts shown by the

evidence.   (People v. Gardeley (1996) 14 Cal.4th 605, 619

(Gardeley).)    Thus in response to a hypothetical assumption that

the trial evidence is true, an expert may testify that a

defendant‟s actions benefited a criminal street gang.

(People v. Gonzalez (2006) 38 Cal.4th 932, 944-947.)     Such

testimony is “typical of the kind of expert testimony regarding

gang culture and psychology that a court has discretion to

admit.”   (Id. at p. 945.)

    Defendant likens the testimony of the expert in the present

case to the expert‟s testimony in Killebrew, supra,

103 Cal.App.4th 644.   There is no comparison.    In Killebrew, the

defendant and others were charged with conspiring to possess a
handgun, which required proof of knowledge and intent to possess

the handgun.    (Pen. Code, §§ 182, 12031, subd. (a)(2)(C).)      The

evidence against Killebrew was sparse.    Though the prosecution

alleged he was a passenger, no eyewitness observed him in any of

the three vehicles allegedly linked to the handgun; several

witnesses testified to the contrary.     A gun was found under a

seat in one of the vehicles, and another gun was found at a taco
stand where two other vehicles were parked.      (Killebrew, at

pp. 647-649.)


                                 11
    The prosecution‟s theory was that the occupants of the

vehicles were gang members seeking to retaliate against a rival

gang for an earlier shooting.   The prosecution‟s expert

testified in detail about gangs and gang psychology and opined

that when one gang member in a car possesses a gun, every other

gang member in the car knows of the gun and will constructively

possess the gun.   Thus, if the jury believed Killebrew was an

occupant of a car in which a gun was carried, then according to

the expert, the elements of the offense were established.

(Killebrew,supra, 103 Cal.App.4th at pp. 650-652.)

    The appellate court found this and other testimony

“disturbing.”    (Killebrew, supra, 103 Cal.App.4th at p. 659.)

While acknowledging that an expert may at times be permitted to

testify on an ultimate issue in the case, the expert‟s opinion

was the only evidence offered to establish the elements of the

crime and “did nothing more than inform the jury how [the

expert] believed the case should be decided.   It was an improper

opinion on the ultimate issue and should have been excluded.”
(Killebrew, supra, 103 Cal.App.4th at p. 658.)    Though the

questions that served as a platform for the expert‟s views in

Killebrew apparently were posed as hypotheticals, the appellate

court believed the “topic is not one for which expert testimony

is necessary.”   The expert‟s beliefs were irrelevant.     (Ibid.)

    Thus, Killebrew does not stand for the proposition that

hypothetical questions must be carefully phrased to omit any
reference to the defendant, nor does it forbid all testimony on

an ultimate issue.   Rather, Killebrew is one of many cases


                                 12
applying the well-established rule that in determining the

admissibility of expert testimony, the crucial consideration is

whether “the subject matter of the testimony is „sufficiently

beyond common experience that the opinion of an expert would

assist the trier of fact.‟”   (Gardeley, supra, 14 Cal.4th at

p. 617, quoting Evid. Code, § 801, subd. (a).)   The Killebrew

trial court did not understand this principle.   According to the

appellate decision, “The trial court apparently interpreted

Gardeley as allowing police officers who testify as experts on

gangs to state any opinions they may have about gangs and gang

activities.”    (Killebrew, supra, 103 Cal.App.4th at p. 654.)

    We agree with defendant that in soliciting answers from a

gang expert on the significance of facts involved in a gang

prosecution, the prosecution should craft hypothetical questions

that make no express mention of the defendant.   We do not

endorse the crudely constructed hypothetical questions proposed

by the prosecutor in this case.    Nonetheless, the expert

testimony was proper.   The testimony was akin to that in
Gardeley, where the Supreme Court approved expert testimony

explaining why actions that might have been regarded as isolated

acts of violence by those unfamiliar with gangs were in fact

gang related.   Here, the questions required the expert to

explain why an effort to redress an apparently private slight

might properly be viewed as an act for the benefit of the gang.

The hypotheticals could have been better framed, but reasonably
construed, their focus was not on defendant personally but on a

gang member in defendant‟s circumstances.


                                  13
         SUFFICIENCY OF THE EVIDENCE FOR GANG ENHANCEMENT

    Defendant disputes the sufficiency of the evidence in

support of the jury‟s finding that he fired at P-Loc‟s residence

for the benefit of the Nogales Gangster Crips.   In addition,

defendant contends the evidence was insufficient to establish a

pattern of criminal conduct.

    In determining whether sufficient evidence supports a

conviction or enhancement, we consider whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.   We examine the record

to determine whether it discloses substantial evidence—evidence

that is reasonable, credible, and of solid value—sufficient to

convince a reasonable trier of fact that the defendant is guilty

beyond a reasonable doubt.   This standard also applies to a

claim of insufficiency of the evidence to support a gang

enhancement.   (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Benefit to the Nogales Gangster Crips

    Section 186.22, subdivision (b)(1) imposes an additional

punishment when a defendant commits a felony for the benefit of,

at the direction of, or in association with a criminal street

gang.   Defendant argues the prosecution failed to present

evidence that defendant shot at the house to benefit the Nogales

Gangster Crips.

    According to defendant, his act of shooting at the house
“would have benefited the gang only if [defendant] occupied a

leadership role in the gang.”   Under this theory, the shooting


                                14
would benefit the gang by holding the gang together or punishing

a rogue member.    Instead, defendant argues, the act of shooting

at the house was a personal effort to gain respect, not an act

to benefit the gang.

    We disagree.    The prosecution‟s gang expert, Detective

Justin Johnson, testified defendant fired shots at P-Loc‟s

residence in order to regain his respect after being

disrespected the day before by P-Loc in front of others.     This

action, Johnson opined, benefited the Nogales Gangster Crips

gang because it let other gangs know that the Nogales Gangster

Crips were willing to deal with their own members harshly.

Defendant cites no authority for the proposition that he must be

the leader of a gang for his actions to benefit the gang.

    Defendant also argues the evidence failed to show he shot

at the residence with the specific intent to benefit the gang.

However, specific intent to benefit the gang is not required.

Instead, the prosecution must show defendant possessed the

specific intent to promote, further, or assist in any criminal
conduct by gang members.   (People v. Leon (2008) 161 Cal.App.4th

149, 162.)   The evidence established that defendant shot at P-

Loc‟s residence with the specific intent to commit that offense,

conduct that benefited the gang.
Pattern of Criminal Gang Activity

    To establish the existence of a criminal street gang within

the meaning of section 186.22, the prosecution must prove
(1) the group is an ongoing association of three or more persons

sharing a common name, or a common identifying sign or symbol;


                                 15
(2) one of the group‟s primary activities is the commission of

one or more statutorily enumerated criminal offenses; and

(3) the group‟s members must engage in, or have engaged in, a

pattern of criminal activity.     (§ 186.22, subd. (f).)             Defendant

contends evidence that the Nogales Gangster Crips engaged in a

pattern of criminal activity “was negated by the small number of

persons in the gang and the severe lack of evidence of other

crimes.”

    However, the prosecution provided evidence of two predicate

offenses by members of the Nogales Gangster Crips:              an

April 2005 shooting by two gang members.        These offenses were

among the statutorily enumerated offenses and occurred within

the statutory time period.     (§ 186.22, subd. (e)(6).)             In

addition, section 186.22, subdivision (f) requires only an

ongoing association of three or more persons, a requirement met

by the Nogales Gangster Crips.
                         ADMISSION OF STATEMENTS

    Defendant faults the trial court‟s admission of statements
made by Old Man and P-Loc.     Defendant argues the statements

constituted inadmissible hearsay.
Background

    At trial, the prosecution elicited the following testimony

from Townsend, the cousin of defendant‟s girlfriend.              “Q:     . . .

Was there some kind of confrontation or argument between Old

Man, P-Loc and the defendant?     [¶]    A:   Yes.   [¶]    Q:       Tell us
about that?   [¶]   A:   They were arguing, I guess like a couple

of days before P-Loc had called.        [¶] . . . [¶]      Q:    You‟re


                                   16
hearing them all argue about this, correct?                [¶]   A:    Yes.    [¶]

Q:   And you‟re hearing the defendant say things to P-Loc and Old

Man?    [¶]    A:    Correct.   [¶]     Q:    And they‟re saying things

back?    [¶]    A:    Yes.   [¶]   Q:    And that‟s where you‟re getting

this information from, correct?              [¶]   A:   Yes.   [¶]    [Q]:    Tell

us what you heard?”

       Defense counsel objected on grounds of hearsay.                The

prosecutor argued the statements were adoptive admissions.                     The

court overruled the objection, and Townsend answered:                   “Lamont

asked P-Loc who was his -- wait.              A couple of days before, Old

Man had slapped P-Loc up.          P-Loc had called and told Lamont what

happened.      And then when I was at the house that day on the

10th, Lamont has [sic] asked P-Loc who was his Big Homey, and P-

Loc responded that Old Man was, and that‟s when the argument

started.      [¶] . . . [¶]     . . . It was passing words back and

forth.    And Lamont was like, I‟m taking you guys home.”

       The trial court discussed the issue with counsel later

during the trial.        The court stated it was not convinced that
the adoptive admission exception to the hearsay rule applied,

and was considering instructing the jury that they could not

consider the testimony for the truth of the matter stated.                    The

prosecutor argued the statements were introduced for the jury to

consider defendant‟s state of mind, which was relevant to his

conduct.

       The court then instructed the jury:              “During Ms. Townsend‟s
testimony, she talked about the conversation or the argument

that she heard that night, and there was an objection that some


                                         17
of that testimony was hearsay.    So let me explain my ruling.      I

allowed that evidence to be presented.     [¶]   Hearsay is pretty

much what it sounds like.    We have a witness on the stand

testifying what she heard somebody else say.      Normally that

hearsay statement is not introduced to prove the truth of what

the other person said.    In this case, there was testimony that

there was in this discussion a reference that somebody had hit

somebody else. . . .     The testimony was not allowed in to prove

the fact that that actually occurred . . . .      Neither of those

people are here to testify.    But simply the fact that the

statement was made or it was Ms. Townsend‟s testimony that the

statement was made may be relevant, and that‟s for you to

determine.   It‟s for you to decide what significance, if any, to

put on that testimony.    If just the fact that the statement was

made may be relevant.    [¶] . . . [¶]   So I‟m going to allow

Ms. Townsend‟s testimony as to what she heard said in that

discussion or argument to come in.     Again, not to prove the

truth that Old Man hit or beat up P-Loc, but simply if it was
said, you can consider that.    If it was said, is the simple fact

that it was said important?    Did the people who heard the

statement have any reaction to the statement?      Did it mean

anything to them, even if the statement was not true?      [¶]    So

I‟m giving you a limiting instruction that testimony you are

allowed to consider, but not to prove the truth of what the

other people may have said.    Simply the fact that if it was
said, if you believe Ms. Townsend, . . . what significance do




                                  18
you put on it?     So I‟m giving you a limiting instruction.

That‟s why I‟m allowing the testimony to come in on that point.”
Discussion

    We review a trial court‟s decision on the admissibility of

evidence under the abuse of discretion standard.       We reverse

only if the court acted in an arbitrary, capricious, or patently

absurd manner that resulted in a miscarriage of justice.

(People v. Rodriguez (1999) 20 Cal.4th 1, 9.)     A statement

constitutes hearsay if it was made other than by a witness while

testifying at trial and is offered to prove the truth of the

matter stated.     Hearsay evidence is inadmissible unless it falls

within one of the exceptions to the rule.     (Evid. Code, § 1200,

subds. (a), (b).)

    Here, the prosecution did not offer Townsend‟s account of

defendant‟s and P-Loc‟s statements for the truth of the matter

stated.   The prosecution was not attempting to prove that Old

Man was actually P-Loc‟s big homey, or mentor.     Instead, the

prosecution introduced the exchange to show defendant‟s state of
mind when P-Loc showed him disrespect by choosing Old Man

instead of defendant as his mentor.

    A statement is admissible if “offered to prove the

declarant‟s state of mind, emotion, or physical sensation at

that time or at any other time when it is itself an issue in the

action; or   [¶]    . . . to prove or explain acts or conduct of

the declarant.”     (Evid. Code, § 1250, subd. (a).)    The trial
court did not err in admitting the statements.




                                  19
       SUFFICIENCY OF THE EVIDENCE OF CHILD ENDANGERMENT

    Defendant challenges the sufficiency of the evidence to

support his three convictions for felony child endangerment.

According to defendant, he could not be criminally negligent

since he owed no parental duty to the children.    In addition,

defendant contends the mental suffering experienced by the

children was not a reasonably foreseeable consequence of

shooting a handgun.

    Section 273a provides, in pertinent part:     “Any person who,

under circumstances or conditions likely to produce great bodily

harm or death, [1] willfully causes or permits any child to

suffer, or [2] inflicts thereon unjustifiable physical pain or

mental suffering, or [3] having the care or custody of any

child, willfully causes or permits the person or health of that

child to be injured, or [4] willfully causes or permits that

child to be placed in a situation where his or her person or

health is endangered, shall be punished by imprisonment in a

county jail not exceeding one year, or in the state prison for
two, four, or six years.”

    Section 273a encompasses a wide variety of situations and

includes both direct and indirect conduct.    When harm to the

child is directly inflicted, the mental state required is

general criminal intent.    When the harm is indirectly inflicted,

the mental state required is criminal negligence.    (People v.

Valdez (2002) 27 Cal.4th 778, 783-791.)
    Defendant contends the evidence failed to show he owed any

existing parental duty to the three children when the shooting


                                 20
took place.    Defendant was not related to the children, nor was

he married to the children‟s mother.   According to defendant he

was “only the boyfriend of the mother of the three children and,

as such, was not within the „class of offenders‟ intended by the

child-abuse statute.”

     Section 273a specifies four discrete ways in which the

statute may be violated.    Defendant argues any violation

requires that the defendant have a parental duty of care owed to

the child.    However, only the third situation discusses an

instance in which “having the care or custody of any child, [the

defendant] willfully causes . . . .”   Each situation is

discrete, separated from all others by the disjunctive “or,” not

the conjunctive “and.”

     Here, defendant was found guilty of violating section 273a

by willfully causing or permitting the children to suffer, or by

inflicting on them unjustifiable pain or mental suffering, when

he fired a semiautomatic handgun as the children sat in the van.

Nothing in section 273a requires a parental duty of care in
order to be found to have violated the statute in such a

situation.3

     Defendant also argues the evidence was insufficient because

the children‟s mental suffering was not a reasonably foreseeable




3  Defendant argues that in the absence of a special relationship
the conviction must be reversed, relying on People v. Heitzman
(1994) 9 Cal.4th 189, 207. However, Heitzman concerned a
conviction of elder abuse, not child endangerment under
section 273a.


                                 21
consequence of his shooting at P-Loc‟s residence.    Instead,

defendant argues the evidence that the children suffered from

acute stress disorder resulted from their being separated from

their mother and being placed in foster care.

    We disagree.   Six-year-old D. testified it was difficult

for him to talk about the shooting and it made him sad.    The boy

told an officer that defendant demanded his gun from D.‟s

mother, cursed her, and pushed her.    When officers pulled the

van over, D. told the officer defendant threatened to kill

everyone if the children told the police what had happened.

    Townsend testified that immediately after defendant and

Liggins fired from the van, the children were scared and in

shock.   The clinician at the Children‟s Receiving Home treated

the children for six months and testified they suffered from

acute stress disorder because of the trauma of witnessing the

shooting.

    Substantial evidence supported defendant‟s conviction for

child endangerment.    The three children‟s traumatic reaction to
witnessing the drive-by shooting was a direct and foreseeable

consequence of defendant‟s crime.
                         INSTRUCTIONAL ERROR

    Defendant claims the trial court erred in failing to

instruct the jury sua sponte on the issue of probable and

foreseeable consequences in conjunction with the child

endangerment counts.   Defendant contends the error removed a
material issue from the jury‟s consideration, requiring

reversal.


                                 22
Background

       The trial court instructed the jury on criminal negligence

regarding child endangerment:     “Criminal negligence involves

more than ordinary carelessness, inattention or mistake in

judgment.    A person acts with criminal negligence when:     [¶]

One:    He acts in a reckless way that creates a high risk of

death or great bodily harm; and     [¶]   Two:   A reasonable person

would have known that acting in that way would have created such

a risk.    [¶]   In other words, a person acts with criminal

negligence when the way he acts is so different from the way an

ordinarily careful person would act in the same situation that

his act amounts to a disregard for human life or indifference to

the consequences of that act.”     (CALCRIM No. 821.)
Discussion

       Defendant argues the court erred in not instructing with

CALJIC No. 9.37, which provides a definition of criminal

negligence:      “„Criminal negligence‟ refers to negligent conduct

which is aggravated, reckless or flagrant and which is such a
departure from the conduct of an ordinarily prudent, careful

person under the same circumstances as to be contrary to a

proper regard for danger to human life or to constitute

indifference to the consequences of that conduct.       The facts

must be such that the consequences of the negligent conduct

could reasonably have been foreseen and it must appear that the

danger to human life was not the result of inattention, mistaken
judgment or misadventure, but the natural and probable result of

an aggravated, reckless or flagrantly negligent conduct.”


                                   23
    To establish error, defendant must demonstrate a reasonable

likelihood that the jury understood the instruction in a way

that violated his constitutional rights.     (People v. Andrade

(2000) 85 Cal.App.4th 579, 585.)     We find no such error.

    The instruction as given informed the jury that to find

defendant criminally negligent they must find conduct that

created a high risk of death or great bodily harm, such that a

reasonable person would have known that acting in that way would

create such a risk.   Although the instruction does not

incorporate the terms “probable” or “foreseeable consequence,”

the instruction required the jury to find that a reasonable

person would have known defendant‟s conduct created a risk of

death or great bodily harm.
                         SENTENCING ERROR

    Defendant asserts the trial court erred in sentencing him.

He argues the trial court should have designated one of the

child endangerment convictions as the principal term, and the

court should have exercised its discretion to impose all
subordinate terms as concurrent one-third middle terms.

    Section 1170.1, subdivision (a) provides, in part:        “The

principal term shall consist of the greatest term of

imprisonment imposed by the court for any of the crimes,

including any term imposed for applicable specific enhancements.

The subordinate term for each consecutive offense shall consist

of one-third of the middle term of imprisonment prescribed for
each other felony conviction for which a consecutive term of




                                24
imprisonment is imposed, and shall include one-third of the term

imposed for any specific enhancements applicable to those

subordinate offenses.”

    The trial court chose count one, discharge of a firearm at

an inhabited dwelling, plus the section 186.22,

subdivision (b)(4)(B) gang enhancement, which yielded a 15-

years-to-life term, as the principal term.   The court‟s sentence

complied with section 1170.1, subdivision (a) since it was the

greatest term imposed.

    Defendant also argues the court should have imposed

concurrent one-third midterms for the subordinate terms.

However, section 1170.1, subdivision (a) provides that one-third

midterms are imposed for consecutive sentences.     Here, the trial

court sentenced defendant to concurrent terms.     The court

properly sentenced defendant.
                  MISDEMEANOR CHILD ENDANGERMENT

    In a supplemental brief, defendant contends that his felony
child endangerment convictions should be reduced to

misdemeanors.   He argues the circumstances surrounding the

endangerment counts were “as a matter of law, not likely to

produce great bodily injury or death.”

    The evidence at trial established that defendant drove to

P-Loc‟s house with the three children and an infant in his van.

Defendant stopped in front of the house, held his semiautomatic
handgun out the window, and fired three times.     Liggins held his

gun out the van‟s sliding door window and shot three times into


                                25
the air.     Defendant drove away until stopped by police officers.

Five officers and a canine officer were involved in the stop.

Defendant and the van‟s other occupants were ordered out of the

van at gunpoint.     Officers continued to hold the van at gunpoint

until they discovered the children and baby inside.

    Although defendant characterizes the threat of harm to the

children as possible but “certainly . . . not likely,” the

evidence belies this contention.        Defendant‟s actions exposed

the children to the very real risk of being caught in gang cross

fire at P-Loc‟s house, or injured during the police stop.

Defendant fired a semiautomatic handgun from a van containing

children, raising a very real likelihood that the children could

be harmed in the aftermath.    Substantial evidence supports

defendant‟s convictions for felony child endangerment.
                              DISPOSITION

    The judgment is affirmed.



                                         RAYE          , Acting P. J.



We concur:



             HULL           , J.



             ROBIE          , J.



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