Opinion
NOT TO BE PUBLISHED
Superior Court County Super. Ct. No. 2007023031 of Ventura John E. Dobroth, Judge
Sharon M. Jones, 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, Susan D. Martynec, Supervising Deputy Attorney General, Robert S. Henry, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Jose Ignacio Barron was convicted by jury of assault by means of force likely to produce great bodily injury and the jury found true the allegation that the offense was committed for the benefit of a criminal street gang. (Pen. Code, §§ 245, subd. (a)(1); 186.22.) Appellant filed a motion for a new trial, which was denied. He was sentenced to a total term of nine years in state prison, consisting of the upper term of four years for the assault, plus a five-year gang enhancement. Appellant claims the trial court erred by admitting the facts surrounding his prior conviction to establish a predicate act. He therefore asserts that the gang enhancement should be stricken. We affirm but remand for resentencing on the gang enhancement.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS
On March 23, 2007, appellant drove to a gas station and doused himself and the inside of his car with gasoline. He believed that a dead friend was instructing him to take his own life. He drove home, while drinking a half-bottle of liquor, then lit the car on fire. Appellant stayed in the car "until the water came in." His hands were burned from holding the steering wheel and there were burns on his right ear and the back of his head.
Appellant was arrested for being under the influence of a controlled substance and transported to the Ventura County jail. He was placed in a pre-booking cell along with another individual. Appellant allegedly made a gang challenge, identified a gang, threw up a gang sign, then assaulted the cellmate. The appeal is taken from the assault in the jail.
Prosecution Evidence
Officer Mark Amon of the Oxnard Police Department responded to a report of a suicidal subject. When he arrived at the scene, Amon saw burned jackets on the lawn and found appellant and his cousin inside a garage. Appellant's hands were burned or scraped. Appellant approached Amon and asked to be handcuffed, turned around and put his hands behind his back. Amon handcuffed him and detained him under section 5150 of the Welfare and Institutions Code.
Amon took appellant to the Ventura County Medical Center for clearance. Appellant told the doctor that he had used methamphetamine two days earlier and that he was under the influence. Amon arrested him. Appellant's blood was drawn to test for the presence of drugs. The tests were later determined to be negative.
Appellant arrived at the Ventura County jail in the early morning hours of March 24, 2007. He was placed in a booking cell with Thomas DeSantis, who had been arrested for driving under the influence. His blood alcohol level was .16. According to DeSantis, appellant was mumbling and acting strangely. He "asked where I was coming from." DeSantis did not recall "exactly" what words appellant used when he asked the question. Believing that appellant was asking him where he lived or where he had come from, DeSantis answered, "Silverstrand." Appellant said, "Colonia Chiques," and threw up what DeSantis was "pretty sure" was a gang sign. DeSantis identified the sign based on his "personal experience of watching TV it just looked like it to me." Appellant punched DeSantis, kneed him, and grabbed his head and smashed it into the booking cell window. Appellant used so much force that DeSantis's head cracked the window.
Officer Amon heard appellant yell something, clap his hands, then saw appellant shove DeSantis's head into the safety glass. Deputy Sheriff Matthew Koenig responded to the cell and saw appellant grab DeSantis's head, push it against the safety glass window, cracking it. Koenig stopped the attack.
1) Appellant's Prior Conviction
Six years before the present offense, on October 9, 2001, appellant pleaded guilty to brandishing a weapon in violation of section 417, subdivision (b), and carrying a loaded firearm, in violation of section 12031, subdivision (a). He admitted the special allegation that he was in possession of a firearm during the commission of a crime, in violation of section 12022.5, subdivision (b). No gang allegations were made. Appellant had originally been charged with assault with a deadly weapon, but the complaint was later amended to the lesser charges. The prosecution's gang expert, Detective Adam Wittkins, suggested that the witnesses had been intimidated and were afraid to testify, thus the prosecution was forced to reduce the charged offense.
Wittkins relied on police reports to recount the circumstances surrounding the offense. Several individuals were standing outside a house in Oxnard when two cars pulled up and stopped. One of the motorists asked, "[W]ho do [you] claim[?]" The individuals became concerned, and got into their cars and left. The driver of another car began chasing them. One of the victims reported that the driver pulled out a Tech-9 submachine gun, pulled the trigger but it did not fire. The police later stopped appellant's car and found a loaded Tech-9 under his seat. He served seven months and twenty-two days for the offense.
2) Gang Expert Testimony
Wittkins is a member of the Oxnard Police Department, assigned to the major crimes unit. Before joining the department, he worked for the Ventura County Sheriff where he served as a classification deputy. He interviewed hundreds of local gang members, both Colonia Chiques and members of other gangs in the area.
At the police department, Wittkins served as a patrol officer where he came into contact with gang members on a daily basis. He interviewed them, observed their culture, lifestyle and other aspects of gang affiliation. Wittkins was later assigned as a member of the gang unit where he interviewed gang members and wrote search warrants regarding gang affiliation and status.
Wittkins testified that the Colonia Chiques pride themselves on being rivals to every other Oxnard gang. Their primary activities are homicides, assaults with deadly weapons, robberies, beatings, graffiti, and vandalism. A gang member builds respect within his gang by committing these offenses. He will challenge a stranger to a fight by asking, "[W]here are you from[?]" The expectation is that the gang member will get into a fight to demonstrate his commitment to the gang.
Wittkins believed that appellant was a member of Colonia Chiques, based upon his review of police reports, criminal history field contacts and an inmate profile from the classification unit. He has no gang tattoos. He had a nickname of "Nacho" which might have been a moniker. In September 2001, appellant was arrested in Santa Barbara where he was found beating a man on the ground. The victim said that appellant approached him and asked, "[W]here are you from[?]" This is a classic gang challenge. In August 2001, appellant and a Colonia Chiques gang member were the subject of a traffic stop. Appellant was leaving a rosary that had been held for a Colonia Chiques gang member who had been killed in a shooting.
In June 2001, appellant was contacted by police investigating a battery. The victim told officers that appellant or a person with appellant had asked him, "[A]re you from Lemonwood[?]" Appellant struck the victim in the face several times. Appellant was not arrested for the battery. On three separate occasions in 1999 and on one occasion in 1997, appellant was seen in the company of known Colonia Chiques gang members.
Wittkins described three individuals he believed to be Colonia Chiques gang members who had been convicted of committing crimes for the benefit of the gang: Ignacio Tamayo, Luis Navarro and Ambrose Sinsun. Each has a moniker. In 2005, Tamayo was convicted of assault with a deadly weapon. He and his brother were walking down the street and confronted a man they believed to be a rival gang member. Tamayo threatened to burn down the victim's house and then began beating the man. Tamayo's brother grabbed a garden hoe and began beating the man and his parents.
In 2004, Luis Navarro was convicted of first-degree residential robbery with use of a firearm and Ambrose Sinsun was convicted of auto theft. Both convictions arose from the same offense. Navarro and Sinsun entered a garage where a victim was asleep and sprayed graffiti on the walls. They held a gun to the victim's head and demanded money. They forced him to drive to a store and dropped him off, stealing his car. Navarro had Colonia Chiques tattoos on his head, stomach and right arm. Sinsun had Colonia Chiques tattoos on his wrists and below one eye. The number "187" was tattooed on his chin, representing the Penal Code section for murder.
After being asked a hypothetical question with facts similar to those in this case, Wittkins testified that the statement, "'where are you from,'" or "'where do you come from,'" uttered in a booking cell to another inmate, followed by the name, "'Colonia Chiques,'" and then an assault of the inmate, constituted a crime committed to benefit Colonia Chiques.
Defense Evidence
1) Gang Expert Testimony
The defense presented its own gang expert, Steven Strong. He is a licensed private investigator who had been a police officer and detective with the Los Angeles Police Department. Strong served as an instructor in gang awareness for the northern and southern California Gang Investigators Association and for the California Department of Justice. He has been qualified as a gang expert on 300 prior occasions.
Strong spent approximately one hour with appellant at the Ventura County jail several months after the assault. He concluded that appellant did not have the appearance of a gang member. He did not use the street slang or display the animated mannerisms of gang members or have gang tattoos.
Strong discounted Detective Wittkins's contacts with appellant, saying most of the reports were too vague to determine whether gang activity was involved. Strong acknowledged that appellant's brandishing conviction indicated gang-related activity because a gang challenge was made. However, that fact did not prove that the offense was committed for the benefit of a gang because no gang was mentioned. Strong pointed out that there was a two-year lapse between police contacts with appellant from 1999 and 2001, which indicated that he was not actively participating in any gang activity.
Strong testified that someone who attends school and works full-time is not likely to be an active gang member. He did not believe that appellant was a gang member or had committed any act for the benefit of a gang.
2) Psychiatric Expert Testimony
In 2006, appellant worked at a telecommunications firm and was enrolled in college. On February 25, he grabbed a co-worker and began shouting about the devil and Jesus. Appellant chased some employees around the premises. He stripped off his clothes, ran into the bushes, then chased more employees into the parking lot. Appellant struck one of the employees during the chase.
Appellant was admitted to a psychiatric facility pursuant to Welfare and Institutions Code section 5150. The following day, a psychiatrist, Dr. Vjera Vukcevich, diagnosed appellant as suffering from a "drug-induced psychotic disorder with delusions" but found no indication of mental illness.
Appellant told Dr. Vukcevich that he began using drugs at the age of 14 which included marijuana, cocaine, methamphetamine, amphetamines, hashish and alcohol. At the time of the incident, he had stopped using all drugs except marijuana, which he used two to three times daily. Although he had suffered a gunshot wound to the head in 1997, he had no neurological deficits.
Dr. Marvin Jung, a staff psychiatrist at Ventura County jail, evaluated appellant four days after the offense. He believed that appellant had a toxic reaction to alcohol and probably drugs. Dr. Jung noted that some people can have a psychotic reaction from alcohol. Appellant was "positive" for alcohol at the time of his arrest.
3) Lay Testimony
David Lopez was an academic counselor at Oxnard Community College District. He had previously assisted migrant farm labor families and their children. Lopez saw appellant frequently during his elementary and junior high school years but lost contact with him when he was in high school. He next saw appellant when he entered Oxnard Community College and asked Lopez to be his academic counselor.
In 2001, appellant was carrying 13.5 academic units. He had close to a 3.0 grade point average and was two classes away from a four-year university. Lopez, in his discussion with appellant's mother, other teachers, and his own observation, did not believe appellant was affiliated or associated with any type of gang.
After appellant was convicted of the brandishing offense in 2001, Andrew Souza, a probation officer, wrote a presentence report. He evaluated appellant to determine whether he was a gang member. In conducting this type of inquiry, Souza customarily asks whether the individual affiliates with a gang, he reviews the subject's prior record to see if he has committed gang-related offenses, and contacts police agencies to see if the individual has been identified as a gang member. Had appellant been a gang member, Souza would have indicated this in his report. The report did not contain any of this information.
4) Appellant's Testimony
Appellant testified on his own behalf. He stated that his nickname is "Nacho" because his middle name is Ignacio. He does not have a moniker and has never been a member of Colonia Chiques. As to his prior conviction, appellant denied pulling alongside a car and aiming a gun at the occupants. He was merely chasing a car occupied by a girl who looked like his ex-girlfriend. When he realized it was not her, he stopped following the car. Someone had given him the Tech-9 submachine gun found in his car. Appellant testified that he knows gang members from all over Oxnard because he grew up there. He does not remember talking to DeSantis or assaulting him in the booking cell.
Defense Offer to Stipulate to Gang Predicate Acts
Before trial, the defense offered to stipulate that Colonia Chiques is a criminal street gang within the meaning of section 186.22. The prosecutor refused the stipulation and chose instead to offer detailed evidence of each predicate act at trial. This consisted of the three offenses committed by Colonia Chiques members (on two separate occasions) plus appellant's prior offense for brandishing a weapon to which he pleaded guilty.
DISCUSSION
Proof of Predicate Acts
Section 186.22, subdivision (a), makes it a crime when any person "actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . ."
To establish "'a pattern of criminal gang activity,'" the People must prove the commission of two or more predicate acts, enumerated in section 186.22, subdivision (e). They must also show that the gang has as one of its primary activities the commission of one or more of the enumerated crimes. (§ Id. at subd. (f).)
Appellant contends that admission of his prior conviction was cumulative because the prosecution had already established the requisite two predicate acts with the convictions of Ignacio Tamayo (assault with a deadly weapon), Luis Navarro (first-degree residential robbery) and Ambrose Sinsun (auto theft). We reject this argument. Although the prosecution presented more predicate acts than the minimum required by statute, there is no basis for appellant's assertion of error.
Sufficiency of the Evidence
Appellant contends that the evidence was insufficient to show that the assault on DeSantis was committed for the benefit of a criminal street gang. He argues that there was no evidence to demonstrate how his conduct could have furthered the criminal activities of the Colonia Chiques.
For the section 186.22, subdivision (b)(1), gang enhancement to apply, the prosecution must prove that the crime for which the defendant was convicted was committed for the benefit of, at the direction of, or in association with any criminal street gang, and with the specific intent to promote, further, or assist in any criminal conduct by gang members.
The prosecution's gang expert, Wittkins, testified that the primary activity of Colonia Chiques is to engage in violence. Gang members improve their standing in the gang by committing violent acts. Appellant's assault on DeSantis not only increased the gang's reputation as a violent, dangerous gang, but also increased its ability to intimidate others. This was sufficient evidence to support the jury's finding that the attack on DeSantis was made with the specific intent to benefit Colonia Chiques. (See People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Gang Expert Testimony
Wittkins testified in detail as to the circumstances surrounding each of the four convictions outlined above. Much of his testimony was based upon police reports and other documentary evidence. Appellant contends that the People used unadjudicated facts surrounding his prior conviction to prove that the current offense was gang related. He claims this was unreliable hearsay. However, he made no such objection at trial.
An expert may render an opinion based upon reliable hearsay. (People v. Gardeley (1996) 14 Cal.4th 605, 618.) However, the trial court has discretion "'to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.' [Citation.]" (Id. at p. 619.)
Evidence of past or present criminal acts is admissible to establish a pattern of criminal gang activity. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)
Gang evidence is admissible where it is relevant to establish motive or intent. (Evid. Code, § 1101.) Due to its highly inflammatory nature, the trial court must determine whether its probative value is outweighed by its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193; see Evid. Code, § 352.)
Appellant argues that Wittkins's detailed description of his brandishing offense was highly prejudicial. He asserts that the jury could have substituted his testimony for proof of the gang allegation in the present matter. Appellant also points to Wittkins's testimony that the brandishing offense may have been reduced from assault with a deadly weapon due to witness intimidation. Appellant contends this statement was mere speculation and could only have served to inflame the jury. We disagree.
Appellant's prior conviction was admissible to prove a pattern of criminal gang activity. Even absent that evidence, the facts of the instant offense established that the assault was gang related. Appellant uttered a gang challenge, said, "Colonia Chiques," made a gang sign and assaulted a stranger. There is no possibility that he was prejudiced by Wittkins's testimony. Nor was there error in the admission of his testimony regarding the crimes committed by Tamayo, Navarro and Sinsun. Their gang activity was inseparable from their commission of the underlying offenses.
Defense Offer to Stipulate
Appellant claims that, because he was willing to stipulate to the existence of two predicate acts, the trial court should have forced the People to accept the stipulation. He asks us to determine whether the prosecution may present evidence of predicate acts despite a defense offer to stipulate to their existence. We decline his request. Defense counsel's offer was a matter of strategy. It failed. The trial court was under no compulsion to require the prosecution to accept the stipulation.
Imposition of Five-Year Enhancement
If the jury makes a finding that the defendant committed an offense to benefit a street gang, the court may enhance his sentence by two, three or four years. (§ 186.22,subd. (b)(1)(A).) If the felony is a serious felony as defined in section 1192.7, subdivision (c), the court shall impose a five-year enhancement. (§ 186.22, subd. (b)(1)(B).)
The serious felonies enumerated in section 1192.7, subdivision (c), do not include assault by means of force likely to produce great bodily injury, thus, appellant contends that he is not subject to the five-year enhancement. He asserts that the matter should be remanded so he may be resentenced under section 186.22, subdivision (b)(1)(A), which provides for a two, three or four-year sentencing enhancement. We agree.
Section 1192.7 includes as enumerated felonies any assault in which a person inflicts great bodily injury on another (id. at subd. (c)(8)); assault with the intent to commit rape or robbery (id. at subd. (c)(10)); assault with a deadly weapon upon a peace officer (id. at subd. (c)(11)); and "any felony offense, which would also constitute a felony violation of section 186.22," (id. at subd. (c)(28)).
The People claim that imposition of the five-year enhancement was proper because the enumerated felonies under section 1192.7, subdivision (c), include "any felony offense, which would also constitute a felony violation of section 186.22 . . . ." (Id. at subd. (c)(28).) They point to section 186.22, subdivision (e)(1), which lists as a predicate act "assault . . . by means of force likely to produce great bodily injury, as defined in Section 245." The People's position is without merit because section 186.22, subdivision (e)(1), addresses the types of crimes which constitute a predicate offense. It does not apply to the length of the enhancement that may be imposed.
DISPOSITION
Appellant's conviction under section 245, subdivision (a)(1), is affirmed. The gang enhancement imposed under section 186.22, subdivision (b)(1)(B), is vacated and the matter remanded with directions to resentence appellant on the gang enhancement under section 186.22, subdivision (b)(1)(A).
We concur: YEGAN, Acting P.J., PERREN, J.