Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. VA086987
GILBERT, P.J.
Mark Alexander Baquedano was charged with assault with a deadly weapon. (Pen. Code, § 245, subd. (a).) The information further alleged that Baquedano committed the crime for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b)(1)(A). Baquedano waived a jury trial. The trial court found him guilty of assault with a deadly weapon and found the gang allegation to be true. The court sentenced Baquedano to the upper term of four years for the assault and five years for the gang enhancement.
All statutory references are to the Penal Code unless otherwise stated.
Because the maximum term under section 186.22, subdivision (b)(1)(A), is four years, we reduce the sentence for the gang enhancement to four years. In all other respects we affirm.
FACTS
Teenager Brandin Morin lived in the area of Visions Drive in La Mirada. Elise Lambert also lived in the area. On December 21, 2004, at around midnight, Morin and other teenagers were standing in front of Lambert's residence. A dark green Jeep drove up and slammed on its brakes. Several Hispanic men got out of the Jeep and approached the teenagers. At least one of the Hispanic men held a baseball bat.
When the men approached the teenagers, all of them fled but Morin. One man asked Morin if he was a member of the 5150 gang. Morin did not respond. He stood in place and shivered a little. The man hit Morin in the head with a baseball bat. Morin fell to the ground. He was hit again with the bat. Morin fell into a coma. He eventually recovered from the coma, but continues to need speech and other therapy.
Lambert spoke to the police after the incident. She said she believed her former boyfriend, Curtis Patchel, was involved in the assault. Patchel was a member of the La Mirada Hesh gang. Lambert had complained to Tyler Valentine, a member of the 5150 gang, that Patchel was treating her badly. In retaliation, Valentine drove to Patchel's house, knocked down the mail box and destroyed the grass. Lambert said at the night of the incident Baquedano, a La Mirada Hesh member, called her and told her to look outside. She saw police cars and an ambulance. Baquedano told her they got the wrong guy but that she would be next.
Los Angeles County Deputy Sheriff Neil Madden spoke with Baquedano about the assault. Baquedano said that Danny Powell, a member of La Mirada Hesh, called him and told him that Patchel's house had been vandalized by some members of the 5150 gang. Powell said they would pick up Baquedano to search for and retaliate against the vandals. Powell and two others picked up Baquedano in a Jeep Cherokee. Powell had a baseball bat and Baquedano had a crow bar. When they saw a group of people standing in front of Lambert's house, they got out of the car. Baquedano said it was Powell who hit Morin. Baquedano stood by holding the crow bar. According to Baquedano, another gang member, Carlos Jimenez, called Lambert from Baquedano's cell phone and threatened her.
Deputy Madden testified as a gang expert. He said he had contacts with the La Mirada Hesh gang from the time they started. The gang started when the members were in high school. Originally, it was a "party crew," that is, a group that crashed parties. Over time, they evolved into a gang that committed vandalism assaults, and stabbings and ran over people with their cars. The gang has 40 to 45 members. Baquedano has admitted he is a member. Another gang member, Aaron Van Aston, has a 2003 conviction for assault with a deadly weapon in violation of section 245.
In Madden's opinion, the present assault was committed by Baquedano and his companions for the benefit of their gang. They wanted to retaliate for vandalism committed by the 5150 gang against property of a member of the La Mirada Hesh gang.
DISCUSSION
I
Baquedano contends the gang enhancement is not supported by substantial evidence. He argues there is no evidence that La Mirada Hesh had as one of its primary activities the commission of an offense listed in section 186.22 subdivision (e).
Section 186.22, subdivision (b)(1), provides for a sentence enhancement for any person convicted of a felony committed for the benefit of a "criminal street gang" as an organization, association or group having as one of its "primary activities" the commission of one or more of the criminal acts enumerated in subdivision (e). The offenses enumerated include assault with a deadly weapon sufficient to cause great bodily injury. (Id. at subd. (e)(1).)
In reviewing the sufficiency of the evidence we view the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Johnson, supra, at p. 578.)
Sufficient proof of a gang's primary activities can consist of expert testimony. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) Here Deputy Madden testified as a gang expert. He said La Mirada Hesh originally started crashing parties, but evolved into a gang that committed serious crimes. Although Madden did not expressly use the term, "primary activities," a reasonable trier of fact could conclude that assaults likely to produce great bodily injury is a primary activity of the gang. The tenor of Madden's testimony is that such assaults are not isolated incidents, but one of the things the gang is known for. Indeed, the current offense is such an assault. Substantial evidence supports the gang enhancement.
II
Baquedano contends the trial court erred in sentencing him to five years for the gang enhancement.
The prosecution alleged that the assault was committed for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b)(1)(A). Baquedano points out that the sentence for a violation of subdivision (b)(1)(A) is two, three or four years. Thus a five-year term is unauthorized.
The Attorney General points out that assault with a deadly weapon is a serious felony. (§ 1192.7, subd. (c)(31).) The punishment for the commission of a serious felony for the benefit of a criminal street gang is five years pursuant to section 186.22, subdivision (b)(1)(B). But, although the prosecutor alleged the assault is a serious felony, the gang enhancement allegation mentions only section 186.22, subdivision (b)(1)(A).
In People v. Mancebo (2002) 27 Cal.4th 735, the defendant sexually assaulted two victims. The prosecution alleged the defendant was eligible for two life terms under the "one strike" law because he personally used a gun. (§ 667.61, subd. (e)(4).) The prosecution also alleged gun-use enhancements under section 12022.5, subdivision (a). A jury found the defendant guilty as charged and found all enhancement allegations to be true. At sentencing, the trial court imposed consecutive life terms under the one strike law by substituting a multiple-victim circumstance (§ 667.61, subd. (e)(5)) for the gun-use circumstances. The trial court then used the gun-use circumstances to impose gun-use enhancements under section 12022.5, subdivision (a). The defendant objected on appeal because the multiple victim circumstance under which the trial court imposed the consecutive one strike life sentences was never alleged.
The Court of Appeal and our Supreme Court agreed with the defendant. Sentencing under a statutory provision that was not pleaded violates statutory requirements for pleading and due process. (People v. Mancebo, supra, 27 Cal.4th at p. 747.) The court also stated that there is little doubt the prosecution understood the pleading requirement and knew how to comply with it. (Id. at p. 749.) Under the circumstances, the failure to include a multiple-victim circumstance allegation must be deemed a discretionary charging decision. (Ibid.) Thus the doctrine of waiver and estoppel, rather than harmless error, applies. (Ibid.) Finally, because the sentence is unauthorized, the defendant did not waive the error by failing to assert it in the trial court. (Id. at pp. 749-750, fn. 7.)
Similarly, here sentencing Baquedano under a statute not pleaded violates statutory requirement that all enhancements must be pleaded (§ 1170,1, subd. (e)) and due process. (People v. Mancebo, supra, 27 Cal.4th at p. 747.) In Mancebo, that the pleadings alleged offenses against more than one victim was insufficient to notify the defendant that multiple victims could be used to qualify him for a one strike life term. Here that the prosecution alleged the underlying offense is a serious felony is not sufficient to notify Baquedano that he could be sentenced under section 186.22, subdivision (b)(1)(B). Waiver and estoppel, rather than the harmless error rule applies. (Id. at p. 749.) Finally, because the sentence was unauthorized, Baquedano did not waive the error. (Id. at pp. 749-750, fn. 7.) The maximum term to which Baquedano could be sentenced for the gang enhancement is four years.
III
Baquedano contends the trial court erred in imposing the upper term without a jury determination of the aggravating factors.
Baquedano waived his right to a jury trial. Even assuming the waiver did not apply to sentencing factors, Baquedano's contention has no merit.
Under the California determinate sentencing law as it existed at the time Baquedano was sentenced, the trial court could impose the upper term only upon its finding of one or more aggravating factors. (Former § 1170, subd. (b).) Recently, the United States Supreme Court held such a sentencing scheme violates the Sixth Amendment right to a jury trial to the extent it assigns to the trial court the authority to find facts that expose the defendant to the upper term. (Cunningham v. California (2007) __ U.S. __ [166 L.Ed.2d 856].)
The right to a jury trial, however, does not apply to the fact of a prior conviction. (People v. Black (2007) 41 Cal.4th 799, 818 (Black II).) This exception also applies to related issues that may be determined by examining the records of prior convictions, such as whether the offenses are numerous or of increasing seriousness. (Id. at p. 819-820.) As long as a single aggravating factor that renders the defendant eligible for the upper term has been properly established, any additional fact finding engaged in by the trial court in selecting the appropriate sentence does not violate the defendant's right to a jury trial. (Id. at p. 813.)
Here the trial court found as aggravating factors: that the defendant's prior convictions and juvenile adjudications are of increasing seriousness; that the crime involved great cruelty, great bodily harm and a high degree of cruelty, viciousness or callousness; that the defendant was armed with a weapon; that the victim was particularly vulnerable; that the crime involved planning; and that the defendant was on probation when he committed the crime. The court stated there are no mitigating factors.
The trial court's finding that Baquedano's prior convictions and juvenile adjudications are of increasing seriousness does not implicate his right to a jury trial. (Black II, supra, 41 Cal.4th at p. 819-820.) Because a single aggravating factor is sufficient to render the defendant eligible for the upper term, the trial court's finding of additional facts did not violate Baquedano's right to a jury trial. (Id. at p. 813.) Thus the trial court properly imposed the upper term without jury findings.
Moreover, any error in denying the defendant a jury trial on aggravating factors is harmless if there is no reasonable doubt a jury would have found those factors. (Washington v. Recuenco (2006) __ U.S. __ [165 L.Ed.2d 466].) Here Baquedano admitted he was armed with a weapon when he committed the crime, he admitted that the crime was planned, and the victim clearly suffered grievous bodily injury. There is no reasonable doubt a jury would have found at least those factors to be true.
Nor are we required to remand for resentencing on the gang enhancement. Given the number of aggravating factors and the absence of mitigating factors, there is no reasonable doubt the trial court would choose the high term of four years for the gang enhancement.
Baquedano's sentence for the gang enhancement is reduced from five to four years. In all other respects we affirm.
We concur: COFFEE, J., PERREN, J.
Cynthia Rayvis, Judge
Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Tita Nguyen, Deputy Attorney General, for Plaintiff and Respondent.