Filed 5/18/22 P. v. Bonilla CA4/3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL BONILLA,

Defendant and Appellant. G057654

(Super. Ct. No. 15CF0197)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael

A. Leversen, Judge. Affirmed as modified.

Jennifer Peabody, under appointment by the Court of Appeal, for

Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief

Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C.2

Ragland

, Alana R. Butler, Steve Oetting, and Heather B. Arambarri, Deputy Attorneys

General, for Plaintiff and Respondent.

* * *

Daniel Bonilla appeals from his convictions for attempted murder and

related crimes and enhancements. The information charged Bonill a, a minor at the time

the offenses were committed, with one count each of attempted murder with deliberation

and premeditation (Pen. Code, §§ 664, subd. (a), 187, subd. (a); count 1), 1 assault with a

firearm (§ 245, subd. (a)(2); count 2), and active par ticipation in a criminal street gang

(§ 186.22, subd. (a); count 3). In connection with counts 1 and 2, the information further

alleged the offenses were committed for the benefit of a criminal street gang (§ 186.22,

subd. (b)(1)), Bonilla personally used a firearm (§ 12022.5, subd. (a)) and personally

inflicted great bodily injury (§ 12022.7, subd. (a)). Lastly, the information alleged

Bonilla personally discharged a firearm (§ 12022.53, subd. (c)) and personally discharged

a firearm causing great b odily injury (§ 12022.53, subd. (d)) in the commission of

count 1.

The jury found Bonilla guilty of attempted murder and found the firearm

and the great bodily injury enhancements true, but found the attempted murder was not

deliberate and premeditated. It also convicted Bonilla of assault with a firearm, found

true the firearm enhancements alleged in connection with that count, and found Bonilla

guilty of actively participating in a criminal street gang.

The court sentenced Bonilla to the middle term of seven years on the

attempted murder (count 1) and imposed a consecutive term of 25 years to life on the

section 12022.53, subdivision (d) enhancement. Punishment on the remaining

enhancements related to count 1 was either stayed or stricken. The court imposed a

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

indicated.3

three

- year concurrent sentence on count 2 (assault with a firearm) and stayed the sentence

pursuant to section 654. The sentences on the enhancements tied to count 2 were also

stayed. Finally, t he court imposed a three

- year concurrent sentence on count 3 (active

participation in a criminal street gang).

Bonilla makes the following claims of error: 1) he was denied effective

assistance of counsel when his attorney did not object to the introduction into evidence of

the codefendants’ p lea agreements; 2) the trial court committed prejudicial error in

instructing the jury; 3) the trial court erred in failing to stay the sentence imposed on

count 3 pursuant to section 654; and 4) the abstract of judgment must be amended to

reflect the sec tion 654 stay imposed on count 2. The Attorney General concedes the

merit of the last two contentions.

We initially issued an opinion in this matter in October 2020, which Bonilla

appealed and on which the Supreme Court granted review pending its decisio n in another

case on a jury instruction issue. The court decided that issue in People v. Lemcke (2021)

11 Cal.5th 644 ( Lemcke ), transferred the cause back to this court, and the parties

submitted additional briefing on the instructional issue.

As befor e, w e conclude the ineffective assistance of counsel claim should

be litigated in a separate habeas corpus proceeding, not as part of this appeal. We also

find no prejudicial error in the trial court’s use of the then

- standard jury instruction

concerning eyewitness identification (CALCRIM No. 315), but accept the Attorney

General’s concession of error regarding the section 654 claims. Thus, we modify the

judgment to reflect the changes required by section 654 and affirm the judgment as

modified.

FACTUAL AND PROCEDURAL BACKGROUND

On January 15, 2015, J.G., her boyfriend L.C., and her four children were in

her white Honda on their way to the park. J.G. was driving. The Honda was in the4

middle of the driveway of a mobile home park, about to turn onto First Street, when J.G.

saw a man later identified as A.C. running from the east toward her car. She stopped the

car. A.C. tried to get into the backseat of the Honda. J.G. then saw a silver Lexus

driving from the east. It made a U

- turn in front of the mob ile home park, and a person

she later identified as Bonilla got out. Although J.G. did not remember which door he

exited, Bonilla was the only person to get out of the car. He had a gun and started

shooting at A.C. A.C. ran to the rear of the Honda, att empting to hide.

Bonilla pursued A.C. When Bonilla was in front of J.G.’s car, she heard

loud popping noises and directed her children to “duck down.” After firing four or five

shots, Bonilla ran back to the Lexus. It drove off to the east. J.G. pulled onto First Street

and drove in the opposite direction because she did not know if Bonilla was going to

return. She then turned around and went back to the mobile home park to call the police.

Once she returned, J.G. saw blood on her car where A.C. had leaned against it.

One of the responding police officers eventually took her to a restaurant

parking lot where she observed several young males in handcuffs. J.G. saw the Lexus

parked in the restaurant lot. She looked at each of the young males, but only recognized

Bonilla, the shooter. The officer who took J.G. to the show up said she made he r

identification of Bonilla from 20 feet away. After the officer took J.G. home, the officer

had L.C. accompany him to see if L.C. could identify anyone the police detained.

In describing the shooting, L.C. said he heard a shot and saw A.C. run into

the driveway where he, J.G., and the four children were in J.G.’s car. It was clear to him

A.C. was running away from something. A car then drove into view. The vehicle

appeared to be following A.C. A male got out of the car via the left rear door and gav e

chase. After unsuccessfully attempting to hide in some bushes, A.C. went to the driver’s

side of their car and attempted to get in. Bonilla was 10 feet in front of the Honda when

he fired at A.C., who was attempting to get into the car. L.C. said Boni lla fired at least

three shots at A.C. with a revolver.5 According to L.C., he made eye contact with Bonilla when he (L.C.) put his

hands up and motioned to Bonilla that there were children in the car. J.G. and the

children in the back seat were screaming . A.C. was calling out, “Help me, help me.”

L.C. yelled at him that there were children in the car. L.C. could see blood on the back of

A.C.’s shirt. Bonilla ran back to the car stopped in the middle of the street, got in and the

car then sped away. A.C. ran toward the office at the mobile home park.

After the police responded, an officer took J.G. away in a patrol car and

L.C. stayed with the children. When J.G. returned, an officer took L.C. to a location

where he was shown five young male Hispanics who looked like they were in their teens.

He was shown the males one at a time. He only recognized Bonilla as the shooter. L.C.

was confident in his subsequent in

- court identification of Bonilla. He testified he never

forgets a face.

Wh en he spoke to the police, L.C. gave his first name, but used his

stepbrother’s last name. He explained he did so because he is an undocumented alien and

there was an outstanding warrant for his arrest.

J.F. testified for the prosecution after entering into a plea agreement.

Although he had been charged with possession of methamphetamine for sale (Health &

Saf. Code, § 11378), in addition to the attempted murder, assault with a firearm, and

active gang p articipation, along with Bonilla, J.F. pled guilty to being an accessory after

the fact (§ 32) and actively participating in a criminal street gang. In exchange for his

testimony in this and another matter, J.F. testified he believed he would be sentenced to

credit for time served.

According to J.F., he had been washing clothes in the community

laundromat at the mobile home park with his two brothers, B.F. and G.F., when there was

an altercation with A.C., someone he did not know. A.C. approached B.F. a nd said,

“F**k Middleside.” B.F. replied that he was not from Middleside. After another profane

comment, A.C. left the laundromat.6 J.F. stated Middleside is a gang, and the mobile home park is in or near

territory claimed by the gang. J.F.’s brothers know people in the gang.

J.F. and his brothers were hungry and decided to get something to eat, so

they called Bonilla and V.S. The brothers picked up V.S. and Bonilla, but J.F. then

wanted to put more quarters in at the laundromat before they w ent to eat, so he headed

back to the mobile home park. When they got back to the mobile home park, J.F. saw

A.C. who was in the driveway holding a “pretty long” stick or pipe. A.C. ran toward

J.F.’s car as J.F. was about to pull out into the street, and hit the left rear side of the car

with the long stick. J.F. pulled into the middle turn lane and stopped because he wanted

to find out who A.C. was. J.F. said he wanted to ask A.C. what his problem was.

J.F. then heard his right rear door open. Bonilla got out of the car. A.C.

was still standing at the entrance to the mobile home park. J.F. heard B.F. say, “No,” and

saw Bonilla running across the street. A.C. ran too. J.F. heard four gunshots.

There was a car in the driveway. It was between Bonilla and A.C. After

J.F. made a U

- turn, Bonilla returned to the car, got in, and said, “I got him, I got him.”

J.F. then drove away. While they were driving on Sullivan Street, a police car made a

U

- turn. It followed them to a shopping center parking lot and eventually the police

arrested J.F. and his companions. Officers then brought other people to the location. J.F.

remembered sitting in a police car, handcuffed, being taken out of the police car, and told

to stand in front of another car.

J.F. believes Bonilla associated with the Middleside gang, based on

clothing Bonilla wore in the gang’s colors, gray and black, and his having made

derogatory comments about other gangs. When J.F. was interrogat ed by police, he

initially denied any knowledge of the shooting. After about 20 minutes, however, he

“came clean” and told the police Bonilla was the shooter. He said after a male hit his car,

he stopped in the middle of the road; Bonilla then got out of the car, walked up to the

male and shot him.7 When officers responded to the mobile home park, they found blood

splatters on the front end of J.G.’s car and drops of blood on the ground. Police also

located a wooden stick with a screw sticking out of o ne of the ends.

Gallardo described Bonilla as 5 feet 8 inches tall, 130 pounds, with brown

hair and eyes. Evidence showed B.F., J.F.’s brother, was also 5 feet 8 inches tall,

weighed 145 pounds , and had dark hair and brown eyes.

Police searched J.F.’s car and found a number of items. Inside a sock in the

rear of the vehicle was a .38

- caliber revolver. Inside a passenger door pocket, police

found a small black plastic bag containing four expended .38

- caliber shell casings. A

spe ed loader and six empty .38

- caliber shell casings were found in the glove box. A

.38

- caliber shell was found inside the center console. DNA samples obtained from the

revolver contained DNA material from multiple contributors and could not be pinpointed

t o any one person. No gunshot residue tests were performed on any of the five suspects.

The police located A.C. at a hospital. He had wounds to his right elbow,

right side of his torso, upper thigh, and pelvic region.

Santa Ana Detective Greg Beaumarchais testified as a gang expert. He said

Middleside has been an active gang since the 1970’s and in January 2015, it had

50 documented members. Beaumarchais was aware of at least five members being

convicted of gang

- related offenses. The gang claims territory, has symbols, hand signs,

rivals, allies, and its primary activities include possession of firearms by prohibited

persons. Beaumarchais reviewed the change of plea forms of B.F., G.F., and V.S. He

found it sig nificant that B.F. and G.F. each admitted to being Middleside gang members

in their respective guilty plea forms. He opined B.F. and G.F. are both active members of

the gang. He further opined Middleside is a criminal street gang.

Beaumarchais conducted a background check on Bonilla. He also reviewed

prior police contacts, including police reports, and a STEP notice. Beaumarchais found

Bonilla’s Facebook page and noticed that it included a photograph of Bonilla making an8

“M” sign with his hand. It also contained a post concerning a well

- respected Middleside

gang member who had been killed. The post referred to Bonilla by his gang moniker,

rather than by name. Beaumarchais also considered Bonilla’s tattoos. On his right wrist

and rig ht shin are initials related to Middleside: “MS.”

In Beaumarchais’s opinion, Bonilla was an active participant in Middleside

on the date of the shooting. In response to a hypothetical question based on evidence

from the trial, Beaumarchais stated the s hooter’s action was committed for the benefit of

the Middleside gang. He said that if an individual “hit up” a Middleside gang member

and hit the car with a stick in which Middleside gang members were riding, a Middleside

gang member shooting the individu al in retaliation for the disrespect would be a “proper

violent response.”

Lastly, Beaumarchais testified that if a gang member possesses a firearm,

the firearm belongs to the gang. Thus, it can be passed around “very quickly,” and there

would be DNA fr om multiple members on the gun.

The plea agreements of B.F., G.F., and V.S., were admitted into evidence.

All three pleaded guilty to attempted murder and actively participating in a criminal street

gang. The factual basis for the guilty pleas were similar but not identical. Each admitted

aiding and abetting the attempted murder of “John Doe” by fellow gang members with

the specific intent to kill him. Each admitted the attempted murder was for the benefit of

the Middleside criminal street gang and that Bonilla was an active participant in the

Middleside gang. This evidence was admitted without objection.

The defense introduced J.F.’s and L.C.’s statements to police. Detective

Elias Martinez of the Santa Ana Police Department testified he intervi ewed L.C. at the

mobile home park after the shooting; L.C. said he was in the car with J.G. when he saw

four juveniles walking outside the mobile home park. As their car approached the exit,

L.C. saw a gray car “kind of” parked in the center lane of the street. He saw a male come

from the area of the parked gray car and then heard three shots. J.G., L.C., and the9

children in their car all put their heads down. A few seconds later, L.C. saw A.C. running

toward their car and attempt to get in. He also saw the male who came from the area of

the gray car point a gun in their direction. L.C. told J.G. to drive away and she did.

Martinez said L.C. did not tell him that he had made eye contact with the

shooter or that he signaled to the shooter the presence of the children in the car. Neither

did he say A.C. asked them to help him during the incident.

The defense also introduced J.F.’s statement to the police. J.F. initially

denied knowing about the shooting or the ammunition found in his car. Later, he said

Bonilla had been sitting behind G.F., who was seated in the right front passenger seat.

He sa id he has known Bonilla for a year or two “because of [B.F.] and [G.F.].” Bonilla

and J.F.’s brothers “all hang out.”

J.F. denied knowing A.C. was going to be shot. He said Bonilla jumped

out of the car and chased A.C., who had run at J.F.’s car and hi t it with something “like a

crowbar.” After the shooting, Bonilla returned to the car and told J.F., “Drive, drive,

drive.”

DISCUSSION

1. Ineffective Assistance of Counsel

Bonilla first argues his convictions must be reversed because his counsel

provided deficient legal representation. Without objection, the prosecution introduced

into evidence the guilty pleas of three of the four other defendants who were in J.F.’s car

at the time of the shooting but, unlike J.F., did not testify at the trial. According to

Bonilla, his counsel’s failure to object to the hearsay statements of B.F., G.F., and V.S.

contained in their plea agreements constituted inculpatory evidence which should have

been excluded.

A criminal defendant has a federal and state constitutional right to the

effective assistance of counsel. (U.S. Const., 6th & 14 Amends.; Cal. Const., art. I,10

§ 15.) “To establish ineffective assistance of counsel, [appellant] must demonstrate that

(1) counsel’s representation was deficient in falling below an objective standard of

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

representation subjected the petitioner to prejudice, i.e., there is a reasonable probability

that, but for counsel’s faili ngs, the result would have been more favorable to the

petitioner.” ( In re Wilson (1992) 3 Cal.4th 945, 950, citing Strickland v. Washington

(1984) 466 U.S. 668, 687.)

An appellant bears the burden on appeal to establish ineffective assistance

of counsel. ( People v. Ledesma (1987) 43 Cal.3d 171, 218.) An ineffective assistance

claim based on failure to object to inadmissible evidence presents an additional

consideration: “Whether to object to inadmissible evidence is a tactical decision.”

( People v . Ha yes (1990) 52 Cal.3d 577, 621.)

“‘[W]e accord great deference to counsel’s tactical decisions’ [citation],

and we have explained that ‘courts should not second

- guess reasonable, if difficult,

tactical decisions in the harsh light of hindsight’ [citation]. ‘Tactical errors are generally

not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of

the available facts.’” ( People v. Weaver (2001) 26 Cal.4th 876, 925

- 926 .) Consequently,

“‘“[if] the record on appeal sheds no light on why counsel acted or failed to act in the

manner challenged[,] . . . unless counsel was asked for an explanation and failed to

provide one, or unless there simply could be no satisfactory exp lanation,” the claim on

appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is

more appropriately decided in a habeas corpus proceeding.” ( People v. Mendoza Tello

(1997) 15 Cal.4th 264, 266

- 267.)

“[C]ompetent counsel may often choose to forgo even a valid objection.

‘[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light

of the jury’s apparent reaction to the proceedings. The choice of when to object is

inherently a matter of trial tactics not ordinarily reviewable on appeal.’” ( People v. Riel11

(2000) 22 Cal.4th 1153, 1197.) However, if there could have been no valid reason for

failing to object, an appellate court may entertain and determine the merits of an

appellant’s inef

fective assistance of counsel claim without providing counsel an

opportunity to state whether the decision was tactical. ( People v. Nation (1980)

26 Cal.3d 169, 179.)

The appellate record herein does not reveal defense counsel’s thought

process in deciding not to object to the guilty pleas of the three former codefendants who

did not testify, and we cannot say as a matter of law that no competent attorney would

have failed to object to that evidence. We can imagine a scenario in which competent

cou nsel would rather have the guilty pleas entered into evidence than have the prosecutor

present the live testimony of the former codefendants. Additionally, the guilty pleas

established the admitted presence of three other individuals the jury would have t o

eliminate as the shooter, potentially bolstering defense counsel’s argument on Bonilla’s

behalf that he was not the shooter. In any event, as we do not know whether defense

counsel’s decision was the result of a reasonable tactical decision or not, we c annot

determine whether counsel’s failure to object rendered his performance deficient. Thus,

any claim of ineffective assistance of counsel in this matter is more appropriately

litigated in a separate habeas corpus proceeding, not in this appeal.

2. Jur

y Instruction Issue

The jury was instructed on the issue of eyewitness identification pursuant to

CALCRIM No. 315. That instruction sets forth a number of factors for jurors to consider

in determining whether to give credence to an eyewitness identificat ion, including:

“How certain was the witness when he or she made an identification?” Bonilla contends

this language “resulted in a fundamentally unfair trial” because witness certainty does not

necessarily correlate with an accurate identification having been made, and therefore his

conviction must be reversed.12 The Attorney General asserts Bonilla forfeited this issue by failing to object

to the instruction or request a modification. (See People v. Sánchez (2016) 63 Cal.4th

411, 461 ( Sánchez ) [forfeiture found where the defendant failed to request a modification

or object to the certainty factor in CALJIC No. 2.92, the precursor to CALCRIM

No. 315].) Anticipating that argument, Bonilla claims his counsel was ineffective for

failing to preserve the issue. We need not address these forfeiture and ineffective

assistance claims because Bonilla’s instructional argument fails on the merits.

At the time of trial, instructing the jury to consider a witness’s stated or

implied certainty in making an i dentification was proper. ( People v. Johnson (1992)

3 Cal.4th 1183, 1232; see Sánchez, supra , 63 Cal.4th at p. 462.) The Supreme Court

recently revisited the issue in Lemcke

, supra , 11 Cal.5th 644. The court rejected the

defendant’s federal and state du e process challenges, explaining that “ [w]hen considered

in the context of the trial record as a whole, listing the witness ’ s level of certainty as one

of 15 factors the jury should consider when evaluating identification testimony did not

render [ the defe ndant ’ s] trial fundamentally unfair. ” ( Id. at pp. 646

- 647 .)

The Supreme Court found the certainty instruction did not lower the

prosecution’s burden of proof. The court observed that “ the instruction does not direct

the jury that ‘ certainty equals accuracy. ’ [Citation.] Nor does the instruction state that

the jury must presume an identification is accurate if the eyewitness has exp ressed

certainty. [Citation.] Instead, the instructi on merely lists the witness ’ s level of certainty

at the time of identification as one of 15 different factors that the jury should consider

when evaluating the credibility and accuracy of eyewitness testimony. The instruction

leaves the jury to decide whe ther the witness expressed a credible claim of certainty and

what weight, if any, should be placed on that certainty in relation to the numerous other

factors listed in CALCRIM No. 315. ” ( Lemcke

, supra , 11 Cal.5th at p. 657.) The court

noted defendant wa s permitted to present expert testimony to combat any inference that

certainty correlates with accuracy

, and the trial court instructed the jury it must consider13

the expert ’ s opinion (CALCRIM No. 332). ( Lemcke, at pp. 657

- 658.) The court stated

that othe r instructions further ensured the prosecutor ’ s burden was not lowered

(CALCRIM Nos. 220, 226, 315, & 332). ( Lemcke, at p. 658.) These instructions were

similarly given here.

The Lemcke court also rejected the argument t hat the certainty component

of C ALCRIM No. 315 deprived the defendant of a meaningful opportunity to present a

complete defense. ( Lemcke

, supra , 11 Cal.5th at pp. 660

- 661.) Nothing prevented the

defendant from putting on a vigorous defense on the issue of identity , and indeed, as

here, the defendant did so

. ( Id . at p. 660 .)

Nevertheless, a lthough the court in Lemcke affirmed the defendant ’ s

conviction, it acknowledged that CALCRIM No. 315 “ has the potential to mislead

jurors ” given “ the empirical research that ‘“ under most circumstances, witness

confidence or certainty is not a good indicator of identification accuracy. ”’” ( Lemcke

,

supra , 11 Cal.5th at p. 665.) “ That raises particular concerns in a case like this one,

where the conv iction was based almost entirely on the testimony of a single witness who

expressed certainty in her identification and had no prior relationship with the

defendant. ” ( Id. at p. 666.) The court requested that the Judicial Council and its

Advisory Committ ee on Criminal Jury Instructions evaluate whether or how the

instruction might be modified and directed that, in the meantime, trial courts should omit

the certainty factor from CALCRIM No. 315 unless requested by a defendant

. ( Lemcke,

at pp. 647

- 648, 668

- 669 .)

Here, Bonilla argues that, while, as in Lemcke , “the jury was told that the

prosecution retained the burden to prove [he] was the perpetrator and that witnesses can

sometimes make honest mistakes,” the absence of defense expert testimony to

undermi ne the certainty factor distinguishes Lemcke and requires reversal. The honest

mistake instruction referenced by Bonilla, CALCRIM No. 226, told the jury: “People14

sometimes honestly forget things or make mistakes about what they remember. Also,

two peopl e may witness the same event yet see or hear it differently.”

Bonilla argues that the prosecutor’s closing argument, which emphasized

that “we have two people who identified the defendant as the shooter completely

independently of each other and of [J.F. ],” highlights the prejudice of the certainty

language in CALCRIM No. 315 because “nothing disabused the jury of the common

misconception that certainty equals accuracy.” While J.G. and J.F. did not provide any

degree of certainty as to their respective i dentifications, Bonilla notes that L.C. testified

he was confident in his in

- court identification more than three years after identifying

Bonilla as the shooter because he claimed, “I never forget a face. To this day, anybody.

I’ll recognize people I don ’t know after years.” Bonilla also emphasizes the

prosecutor’s argument that J.G. was “never confused about the fact that it was the

defendant standing in front of her car shooting the victim” and “did not hesitate” in

identifying him again in court as th e shooter.

In the absence of expert testimony

, and even assuming that it would have

been better if the “ certainty ” language in CALCRIM No. 315 had been omitted, the issue

on appeal remains whether it is “reasonably probable defendant would have obtained a

more favorable result had the trial court deleted the certainty factor.” ( Sánchez

, supra

,

63 Cal.4th at p. 463.) Bonilla emphasizes that the jury sent the trial court an initial note

“after deliberating for 7.4 hours,” according to Bonilla’s calculati on, “indicat[ing] that it

was ‘hung on who the shooter was’” and then deliberated another 9.5 hours for a total of

“16.9 hours” before reaching its guilty verdict. Bonilla cites precedent that “jury

deliberations of almost six hours” indicate that the iss ue of guilt is not “‘open and shut.’”

( People v. Cardenas (1982) 31 Cal.3d 897, 907.) Bonilla emphasizes, as he did at trial,

his theory that he was “falsely accused of being the shooter by his co

- defendant [J.F.]

who was trying to cover for his brother, [B.F.], who was, in fact, the actual shooter.”15 The flaw in Bonilla’s bid for reversal is that the jury considered and

rejected his theory of an alternate shooter and his attacks on the credibility of the three

eyewitness identifications. We presume jurors read and apply the instructions as a

whole, as instructed. (CALCRIM No. 200.) This includes express directives in

CALCRIM No. 315 to consider whether the witness was “under stress when he or she

made the observation,” how “closely was the witness paying attention,” and the

“duration of observation.” It also includes factors highlighted in CALCRIM No. 226:

“How well could the witness see, hear, or otherwise perceive the things about which the

witness testified,” “How well was the witness a ble to remember and describe what

happened,” and “Was the witness’s testimony influenced by a factor such as bias or

prejudice, a personal relationship with someone involved in the case, or a personal

interest in how the case is decided?” The instructions directed the jury to evaluate all of

these factors against a backdrop of additional directives: “You alone must judge the

credibility and believability of the witnesses,” “You may believe all, part, or none of any

witness’s testimony,” that Bonilla “is p resumed to be innocent,” and that, “[u]nless the

evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an

acquittal and you must find him not guilty.” (E.g., CALCRIM Nos. 220, 226, 315.)

Defense counsel vigorously cross

- examin ed the eyewitnesses and noted

discrepancies and inconsistencies in what they reported to law enforcement

— including

that L.C. did not state then that he had seen the shooter’s face, admissions some may

have ducked down in the split seconds leading up to the shooting, whether J.G. and L.C.

had discussed the matter with each other after the shooting and before their testimony,

the gang affiliation of J.F.’s brother and J.F.’s motive to protect his brother, and a host of

other factors. These other factors incl uded evidence introduced to show Bonilla’s

alleged resemblance to J.F.’s brother and where they were seated in the car and in

relation to where the gun was found (under the driver’s seat, accessible by both B.F. and

Bonilla in the rear seat).16 In the end , we cannot ignore that three positive identifications in the

immediate aftermath of the shooting distinguish this case from Lemcke ’s “particular”

concern regarding the certainty instruction when “ the conviction [i] s based almost

entirely on the testimony of a single witness

. . . .” ( Lemcke

, supra , 11 Cal.5th at

p. 666.) Multiple identifications mitigate that concern because each lends credibility to

the other, regardless of certainty expressed (or not) by any one witness.

No witness here gave a subject ive

— and therefore potentially misleading

—

assessment of certainty in his or her initial identification. Instead, the question of

certainty regarding the identity of the shooter was left for the jury to evaluate as it

applied the reasonable doubt standard. In light of the proper instructions on the panoply

of factors the jury had to consider in deciding the identification issue

— including the

possibility of another shooter

— and in light of the three overlapping and reinforcing

eyewitness identifications of Bo nilla as the shooter, we do not believe a different result

is reasonably probable had the certainty clause been excised from CALCRIM No. 315.

3. Cumulative Error

Bonilla next argues the cumulative effect of his trial attorney failing to

object to the adm ission of the guilty pleas of his former codefendants and the error in

instructing the jury pursuant to CALCRIM No. 315 resulted in prejudice that requires

reversal. “‘[A] series of trial errors, though independently harmless, may in some

circumstances ri se by accretion to the level of reversible and prejudicial error.’” ( People

v . Cunningham (2001) 25 Cal.4th 926, 1009.) However, because we do not decide the

ineffective assistance of counsel claim in connection with the admission into evidence of

the codefendants’ guilty pleas and we find no reversible error occurred in instructing the

jury, there is no error to cumulate. ( People v. Reed (2018) 4 Cal.5th 989, 1018.)

4. Section 654 Error on Count 3

Bonilla argues the trial court erred in failing to s tay pursuant to section 654

the two

- year concurrent sentence it imposed on count 3, the conviction for actively17

participating in a criminal street gang. (§ 186.22, subd. (a).) The Attorney General

concedes the error, and we accept that concession.

Secti on 654 provides, in pertinent part: “ An act or omission that is

punishable in different ways by different provisions of law may be punished under either

of such provisions, but in no case shall the act or omission be punished under more than

one provision

. An acquittal or conviction and sentence under any one bars a prosecution

for the same act or omission under any other.” (§ 654, subd. (a).) This section does not

prohibit multiple convictions

, it prohibits multiple punishments based on the same act

( People v. Siko (1988) 45 Cal.3d 820, 823).

Imposition of a concurrent sentence, such as was imposed below, is

multiple punishment for purposes of section 654. ( People v. Deloza (1998) 18 Cal.4th

585, 592. ) To avoid multiple punishment when section 654 applies, the court should

impose sentence on the count carrying the longest potential sentence (here the attempted

murder charge), and then impose and stay execution of the sentence on the count to

which section 654 applies, pending successful completion of the sentence imposed and

not stayed. ( People v. Sanchez (2016) 245 Cal.App.4th 1409, 1415.)

The trial court in People v. Mesa (2012) 54 Cal.4th 191, 195

- 196 ( Mesa ),

imposed sentences on the defendant for assault with a firearm, possession o f a firearm by

a felon, and actively participating in a criminal street gang. Each conviction was based

on the same act. ( Id . at pp. 194

- 195.) Our Supreme Court found the trial court erred in

failing to stay the sentence imposed on the conviction for act ively participating in a

criminal street gang pursuant to section 654. ( Mesa, at p. 193.) The pertinent facts in the

present case are indistinguishable from those in Mesa

. In Mesa , the defendant was

sentenced on an assault with a firearm that also served as the basis for his conviction for

actively participating in a criminal street gang, for which the court also sentenced the

defendant.18 Here, Bonilla was convicted of three felonies, including active participation

in a criminal street gang. They a ll arose out of the act of Bonilla chasing and shooting

A.C. The trial court imposed an aggregate term of 32 years to life on the attempted

murder and attached firearm enhancements and imposed a two

- year concurrent term on

count 3, the conviction of activ e participation in a criminal street gang. But the sentence

on the attempted murder, like the assault charge in Mesa , served as the basis of his

conviction for actively participating in a criminal street gang. It follows t he trial court

erred in failing to stay the sentence imposed on count 3 pursuant to section 654.

We will order the sentence on count 3 to be stayed pursuant to section 654

pending successful completion of the sentence imposed on count 1, and then permanently

stayed.

5. Amendment of the Abstract of Judgment

Lastly, after sentencing Bonilla to an aggregate term of 32 years to life on

count 1 (attempted murder) with its attendant firearm enhancement, the trial court

imposed a concurrent three

- year midterm sentence on count 2 (assault with a firearm) and

ordered it stayed pursuant to section 654. The abstract of judgment, however, fails to

reflect the stay. Because the trial court’s oral pronouncement prevails over a contrary

abstract of judgment ( People v. Mitchell (2001) 26 Cal.4th 181, 185

- 186), the abstract

must be corrected to bring it in compliance with the court’s oral pronouncement. The

Attorney General agrees. Therefore, we will order the abstract of judgment corrected to

show the sentenc e on count 2 is stayed pursuant to section 654.

DISPOSITION

The sentence on count 3 is ordered stayed pursuant to section 654 pending

successful completion of the sentence on count 1, and then permanently stayed. The clerk

of the superior court is direct ed to correct the abstract of judgment to reflect that the

sentences on counts 2 and 3 are stayed pursuant to section 654, and then forward a19

certified copy to the Department of Corrections and Rehabilitation. The judgment is

otherwise affirmed.

GOETHALS, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.