As long as a conviction is supported by substantial evidence, an inconsistent verdict on an enhancement will not require reversal. Appellant and three other gang members approached the victim as he was smoking marijuana in the parking lot of a gas station. When the victim declined to share the marijuana, one of appellant’s companions ripped a chain from the victim’s neck. The victim chased after the man who took the chain, and appellant shot him. A jury found appellant guilty of attempted murder, robbery, assault with a firearm and possession of a firearm by a felon, and several enhancements, but it found a personal gun-use enhancement not true. Appellant argued that the not true finding on the personal gun-use enhancement implies the jury decided he was not the direct perpetrator, instead he was convicted on an aider and abettor theory, and that under this theory there was insufficient evidence to support each conviction. The court affirmed. First, it noted inconsistent verdicts are allowed to stand if otherwise supported by substantial evidence, and this applies both to jury findings on substantive offenses and on enhancements. (Pen. Code, sec. 954; People v. York (1992) 11 Cal.App.4th 1506.) Next, the court noted that the victim testified appellant was the actual shooter. This would support a conviction for each substantive offense under a direct liability theory notwithstanding the inconsistent verdict on the personal gun-use enhancement. Moreover, there was also substantial evidence to convict appellant of the attempted murder, robbery, and firearm assault as an aider and abettor, and of the weapon possession charge under a theory of constructive possession. Appellant aided and abetted the robbery as a backup or lookout, and it was a natural and probable consequence that a robbery committed by gang members would result in an assault with a firearm or attempted murder. As to the firearm possession charge, there was enough circumstantial evidence that appellant at least had joint dominion and control over the shotgun in the car which was tossed out the window of the getaway car when police chased the perpetrators.
There was sufficient evidence to support the gang enhancement. Appellant argued there was insufficient evidence the crimes were committed for the benefit of the gang because they were crimes of opportunity. The court held there was sufficient evidence given that the crime was committed by several gang members acting together, there was reference to the gang’s name at the scene, and it was committed in the gang’s territory.
When “calculating the third alternative to Option 3 of the Three Strikes law, the sentencing court must consider any enhancement that would otherwise be included in determining the defendant’s minimum parole eligibility period under section 3046.” Appellant complained his minimum indeterminate term of 59 years to life was miscalculated. Under the Three Strikes Law, there are three ways of calculating the sentence and the court must chose the greater of the three. The third provision (Pen. Code, sec. 667, subd. (e)(2)(A)(iii)), in turn, has three different ways to make the calculation. The first of these three options was inapplicable because it only applies to crimes with determinate terms, and attempted premeditated murder does not carry a determinate term. The second option discusses the punishment for murder, a crime not at issue here. Thus, the sentence calculation was made under option 3, which considers the minimum parole term statute (sec. 3046). The question before the court was whether when using this option the sentencing court is supposed to add any applicable enhancements. The Court of Appeal held that they are to be included, despite the fact that section 3046 does not specifically state they should be. The court adopted the reasoning of People v. Jenkins (1995) 10 Cal.4th 234, which considered virtually identical language when interpreting the minimum parole eligibility period of Penal Code section 667.7, subdivision (a)(1). By factoring in the terms for the enhancements, the trial court properly calculated appellant’s sentence.