Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. FJ42168, Robert Totten, Juvenile Court Referee.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
This appeal arises out of V.G.’s involvement in the attack on, and severe injury of, a fellow teenager. The juvenile court sustained the petition under Welfare and Institutions Code section 602, finding V.G. assaulted Ricardo D. by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)), separately finding he inflicted great bodily injury on his victim (§ 12022.7), and committed the assault for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)). The court declared the offense a felony with a maximum confinement time of 14 years 8 months, which included a 5-year gang enhancement. In his timely appeal, V.G. contends there was constitutionally insufficient evidence to support the gang enhancement under section 186.22, subdivision (b). We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
The court dismissed the petition’s second count, which alleged a violation of section 422. There were two prior petitions under the same case number. In the first, V.G. admitted possession of a firearm near a school (§ 626.9, subd. (b)), and was placed home on probation. In the second, V.G. admitted possessing a firearm (§ 12101, subd. (b)(1) and was committed to a camp-community placement program. The prior sustained petitions are not at issue in this appeal.
STATEMENT OF FACTS
In June 2009, Ricardo visited V.G.’s house, to request the return of a dog Ricardo’s younger brother claimed V.G. had stolen. During the confrontation, V.G. reached into his clothes and revealed what appeared to be a revolver. Fearing violence, Ricardo left. Both parties lived near the 300 block of East 36th Street in Los Angeles, within the “turf” claimed by the 36th Street gang.
Ricardo’s brothers used to be members of the rival Clayton gang, although Ricardo testified he is not a member.
Within a few weeks, on June 17, 2009, Ricardo was walking to a nearby store when a white van approached, and he heard someone inside say, “that’s him?” and “yeah, that’s him.” V.G. and an older friend named Junior exited the van and approached Ricardo. Junior asked Ricardo to “get down” with him or fistfight, which Ricardo refused, because of Junior’s age and size. Junior told Ricardo, “fuck you retard, ” and further insulted him. V.G. also insulted Ricardo. As Ricardo backed away, Junior hit him in the face, knocking him to the ground. Both V.G. and Junior kicked Ricardo’s head and body repeatedly.
Following the sustained attack, V.G. and Junior got back in the van. Before driving away, Junior told Ricardo, “as soon as you run around the block, I’m going to kill you, ” and V.G. told him, “this is 36th Street.” Ricardo suffered a broken jaw.
Some months after the incident, Ricardo was sitting on his porch when a friend of V.G.’s approached and told Ricardo, “you fucken Rat, I’m going to kill you.” That person left, then returned on a bike with a second person, who pointed a gun at Ricardo, before Ricardo ran inside his house.
Officer Nathan Brown of the Los Angeles City Police Department, Newton Division gang enforcement detail, testified as the People’s gang expert. He stated that the 36th Street gang territory runs south from Jefferson to Martin Luther King Jr. Boulevard and east from Main Street to San Pedro Avenue, has approximately 67 members, and primarily rivals the Clayton 14 gang. V.G. is a “self-admitted” 36th Street gang member with a gang tattoo on his left wrist. When presented with a hypothetical based on the facts of the incident, Officer Brown opined that the tactics used, the group attack and V.G.’s calling out the 36th Street name within its territory, were likely for the benefit of, at the direction of, and in association with the 36th Street gang. Assaulting in groups and calling out a gang’s name following the assault, are tools used by gangs to “spread fear in the community” and to facilitate the commission of later crimes, by reducing a risk of “challenge[] by the community.”
DISCUSSION
When conducting a sufficiency of the evidence review, this court asks whether there is “substantial evidence” in the record, based on which a rational trier of fact might find the accused guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 562.) Substantial evidence is “evidence that is reasonable, credible and of solid value....’ [Citations.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) This court determines 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.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.) Moreover, “[w]e presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Guerra, supra, at p. 1129.) The substantial evidence standard applies to section 186.22 gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
V.G. disputes there is substantial evidence supporting the specific intent element of the section 186.22 gang enhancement. In order for a person to be held criminally liable under section 186.22, he or she must act “for the benefit of, at the direction of, or in association with a criminal street gang, ” and “with the specific intent to promote, further or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1); In re Alberto R. 235 Cal.App.3d 1309, 1317.) “[I]f substantial evidence establishes that the defendant is a gang member who intended to commit the charged felony in association with other gang members, the jury may fairly infer that the defendant also intended for his crime to promote, further or assist criminal conduct by those gang members. [Citation.]” (People v. Vasquez (2009) 178 Cal.App.4th 347, 353-354; People v. Romero (2006) 140 Cal.App.4th 15, 20.)
Our review of the record shows that V.G. is a 36th Street gang member, who referred to his gang during the assault, which occurred in 36th Street territory and was committed in a manner favored by gangs. Based on these facts, a rational trier of fact may infer that V.G.’s actions benefited the 36th Street gang. As the prosecution’s expert explained, V.G.’s use of the gang name during the attack was in accordance with standard gang behavior intended to spread fear within the community. Specific intent may be inferred in the section 186.22 context from behavior orchestrated to intimidate the community for the gang’s benefit. (People v. Vazquez, supra, 178 Cal.App.4th at p. 354 [specific intent under § 186.22 includes the intent to commit a crime to further “criminal activities by intimidating neighborhood residents”].) This credible and substantial evidence supports the reasonable inference that V.G.’s assault on Ricardo was intended to benefit the 36th Street gang.
Additionally, the record suggests that the original encounter between Ricardo and V.G. had gang overtones, as V.G. claimed (in a police interview) that Ricardo told him “this is Clanton, ” referencing to the Clayton 14. A reasonable inference may be made, based on this statement, that V.G. was conscious of his engaging in gang retaliation, and specifically retaliation against a major rival, prior to and during the attack.
V.G. offers the secondary explanation that the attack was intended as a personal retaliation for the earlier dog-related encounter at V.G.’s home. He cites People v. Ramon (2009) 175 Cal.App.4th 843, People v. Albarran (2007) 149 Cal.App.4th 214, and People v. Ochoa (2009) 179 Cal.App.4th 650, three cases in which the trial court found the relationship between the substantive crimes and the benefit to the street gang necessitated by section 186.22 too tenuous to affirm the enhancement.
V.G.’s reliance on Ramon, Albarran, and Ochoa is misguided. In those cases, the connection between the crimes committed and the benefit to future gang activities was speculative at best. In Ramon, the appellate court determined that one expert-proposed, gang-related motive of many is insufficient to support a section 186.22 enhancement. (People v. Ramon, supra, 175 Cal.App.4th at pp. 849, 853.) Similarly, in Albarran, the court held there was insufficient evidence of gang association in the absence of the shooters announcing the gang’s name prior to, during, or following the attack. (People v. Albarran, supra, 149 Cal.App.4th at p. 227.) In Ochoa, the court also declined to affirm the gang enhancement, stating “there were no indications that defendant had claimed responsibility for his crimes in the name of his gang.” (People v. Ochoa, supra, 179 Cal.App.4th at p. 656.) In this case, in contrast, V.G.’s gang membership, the location of the assault, and his use of the 36th Street name are unequivocal indications that the attack was intended to benefit the 36th Street gang.
Regardless of the existence of more than one motivation for the attack, there is substantial evidence of V.G.’s specific intent to promote or assist the 36th Street gang’s criminal conduct. (People v. Vazquez, supra, 178 Cal.App.4th at p. 353-354.)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.