Filed 10/31/14 P. v. DelReal CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,
Plaintiff and Respondent,

v.

MIGUEL DELR EAL,
Defendant and Appellant. B249636
(Los Angeles County Super. Ct. No. KA098112)

APPEAL from a judgment of the Superior Court of Los Angeles County. Mike Camacho, Judge. Convictions affirmed; remanded for resentencing.
Edwar d Mahler, under appointment by the Court of Appeal, for Defendant and Appellant

. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________________2

Miguel DelReal appeals from his convictions of two counts of attempted murder, two counts of assault with a semiautomatic firearm and accompanying ga ng and firearm
sentence enhancements. 1 We affirm the convictions and remand the cause to the trial court to vacate the gang enhancements and resentence DelReal accordingly.

FACTS AND PROCEEDINGS BELOW DelReal approached Cindy Chavez as she sat in a car o n Magnum Street in
Baldwin Park , an area claimed by the East Side Bolen Parque gang (BP gang ) . DelReal
“hit her up” by announcing: “This is Var r io East Side Bolen Parque; they call me Chapitas; this is my street.” Chavez told DelReal she didn’t “gangban g” an d to leave her
alone. Chavez then ignored DelReal and he eventually walked away. Later the same month DelReal approached Chavez as she sat in a car on the same street conversing with a friend. DelReal told Chavez to “get the fuck out of his street” and announced that he was from the BP gang. Chavez told DelReal to leave her and her friend alone. DelReal retorted that they were on “his block, his neighborhood” and told Chavez “you need to leave.” Chavez got out of the car and approached DelReal. She told him to “grow u p.” As she turned to walk away, Del Real struck her with his hand
behind her left ear. Chavez turned back and confronted DelReal who ran away. Chavez followed him and challenged him to a fight saying, “You hit like a bitch, let’s b ox.”
DelReal ran into a nearby house and returned with a small knife and began chasing Chavez. Chavez stopped running and began swinging at DelReal with her fists as he swung at her with the knife. The fight ended with out injuries to either party

. Four days later Chavez was driving a car with Mitch Rodriguez as her passenger when she saw DelReal standing on Magnum Street. She told Rodriguez that DelReal was
the one who had tried to stab her and asked Rodriguez if he had seen him as they drove by. Rodr iguez said he hadn’t so Chavez made a U

- turn and drove back to where DelReal was standing. Chavez pointed to DelReal as she drove past. DelReal
, who was standing

1 DelReal was convicted of other offenses in the same proceeding but he does not challenge tho se convictions

.3

on the sidewalk on the passenger side of the car , looked directly at Chavez and Rodriguez

an d Chavez saw him pull a “small black handgun ” from his waistband. Chavez
accelerated and DelReal fired a single shot that shattered her front passenger side
window. The bullet lodged in the passenger side door

. Chavez drove home and called the police. A few days later the police recovered a .380 caliber semi

- automatic firearm that they observed DelReal throw from a car just prior to h is arrest. A criminalist testified
the bullet fired into the passenger door of Chavez’s car came from that weapon. A j ury convicted DelReal of the attempted murder of Chavez and Rodriguez and of assaulting each of them with a semi

- automatic firearm. The jury also found DelReal committed these crimes for the benefit of the BP gang and with the specific intent to promote, further or assist in criminal conduct by the gang’s members.
The court sentenced DelReal to seven years on each of the attempted murder convictions, six years on each of the assault convictions
, a 10

- year gang enhancement on
each of four counts and impo sed gun enhancements on each of the counts . Because the court imposed other sentences for other convictions in this same proceeding, the court stayed the foregoing sentences pursuant to Penal Code section 654. 2

2 Statutory references are to the Penal Code.4 DISCUSSION
I

. THE CONVICTIONS OF ATTEMPTED MURDER AND ASSAULT ARE SUPPORTED BY SUBSTANTIAL EVIDENCE AS TO BOTH VICTIMS. DelReal contends that the evidence only supports his attempted murder and assault
convictions as to Chavez , n ot as to Rodriguez her passenger. We can quickly dispose of this argument because, as DelReal concedes, “[a] single shot can support two convictions for attempted murder [and assault] if the two victims

are physically aligned such that the trajectory of the bulle t, had the aim been true,
would have passed through the fi rst and struck the second and that was the defendant’s
intent.” This was the scenario in People v. Smith (2005) 37 Cal.4th 733, 748 [attempted
murder of mother and her baby in the backseat directly behind her] and People v.
Chinchilla (1997) 52 Cal.App.4t h 683, 691 [attempted murder of two police officers one of whom was crouched in front of the other].)
Here the evidence showed that Chavez was in the driver’s seat of the car
, Rodriguez was in the front passenger seat , and DelReal was on the sidewalk on t he passenger side of the car

. In that configuration, Rodriguez ’s and Chavez’ s bodies would have been aligned like the mother and baby in Smith and the officers in Chinchilla

. The evidence is therefore sufficient to support all four convictions.
II. THE GANG ENHANCEMENTS ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
DelReal contends that the evidence was insufficient to support the gang
enhancements because it did not show that BP gang met the definition of a “criminal street gang” under section 186.22, su bdivision (f). We agree. A gang enhancement requires proof that the defendant committed a felony “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any c rimi nal conduct by gang members. ” ( § 186.22, subd. (b) (1) .) We review the whole record in the light most favorable to the5

judgment to decide whether substant ial evidence supports the court’s sentence
enhancement. ( In re Alexander L. (2007) 149 Cal.App.4th 6 05, 610.)
Section 186.22 , subdivision (f) defines a “ criminal street gang ” in relevant part as:

“ [A]ny ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or

more of the criminal acts enumerated in

. . . subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. ” (Italics added.)
In People v. Sengpadychith (2001) 26 Cal.4th 316, 323

- 32 4 our Supreme Court explained that “[t]he phrase ‘ primary activities, ’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of t he group ’ s

‘ chief ’ or ‘ principal ’ occupations ”; crimes that the gang commits “co nsistently and repeatedly .” The court went on to say that proof of the gang’s primary activities might be satisfied by expert testimony of the type found in People v. Gardeley (19 96 )
14 Cal.4th 605 where a police gang expert testified that the defendant ’ s gang “w as primarily engaged in the sale of narcotics and witness intimidation, both statutorily
enumerated felonies. [Citation.]” ( People v. Sengpadychith
, supra , 26 Cal.4th at p. 324.)
The evidence of BP gang ’s “p rimary activities ” consisted of the following testimony. The prosecutor asked Detective Honeycutt on direct examination: “What are the primary activities of the [BP] gang? What are the main things that they do?” Honeycutt responded: “Anything. Anything from graffiti, drug sales, drug possession, vehicle theft, robbery, attempted murder, murder.”
On cross

- examination, Honeycutt testified that his d efinition of “primary activity” is “[w] hat the gang is involved in.”
On re

- direct examination Honeycutt was questioned and responded as follows: “Q. . . . [W] hat activities are they doing when they are acting as [BP] gang
members?6

“A. What activities do they commit or what crimes do they commit? “Q. Yes.
“A. Li ke I said, it’s broad. It’s anything from vandalism all the way up to robbery, shootings, weapons possessions, attempted murders, murders . . . drug sales, drug possession.” Honeycutt’s testimony does not constitute substanti al evidence that the BP gang
is a criminal street gang for purposes of the gang enhancement statute. Honeycutt
testified that his d efinition of “primary activity” is “[w] hat the gang is involved in.”
His list of the putative gang’s alleged primary activities thus has no tendency to show that any of the listed activities were the “chief” or “principal” occupat ions of the BP gang , or that the BP gang engaged in any of those activities “consistently and repeatedly” enough for them to be “pri mary” within the meaning of the statute. ( Peo ple v. Sengpadychith
, supra , 26 Cal.4th at p. 32 4 , italics omitted .) Furthermore, Honeycut t ’s testimony lumps together qualifying crimes, such as robbery and murder ( § 186.22, subd. (e)(2) & (3)) with nonqualifying crimes such as simple drug possession an d misdemeanor vandalism. Again, t h e record contains no evidence that when the nonqualifying offenses a re excluded, the qualifying offenses were committed with sufficient frequency to constitute primary activities of the gang. 3

3 We reject D elReal’s argument that his attempted murder convictions should be overturned because the gang evidence, although insufficient to establish the gang enhancement, was highly prejudicial and inflammatory as to the other charges against him. DelReal did not o bject to the gang evidence on that ground in the trial court and, in any event, the gang evidence was relevant to other issues in the case such as motive. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)7 DISPOSITION
The convictions are affirmed. The cause is remanded to the trial court with directions to vacate the gang enhancements, resentence defendant accordingly and send

a corrected copy of the abstract of judgment to the Department of Corrections and
Rehabilitation.
NOT TO B E PUBLISHED

.

ROTHSCHILD, P. J. We concur:

CHANEY, J.

JOHNSON, J.