Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County Super. Ct. No. BA309104, Robert J. Perry, Judge.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Balmore Beltran.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant Oscar Melgar.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Steven D. Matthews, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P. J.
Balmore Beltran and Oscar Melgar appeal from the judgments entered following a joint jury trial in which they were convicted of robbery with further findings that the offense was committed for the benefit of or in association with a criminal street gang (count 1) and attempted robbery (count 3). Beltran contends that the evidence was insufficient to support the convictions of attempted robbery and alternatively that the trial court had a sua sponte duty to instruct on attempted theft as a lesser included offense as to count 3. Both defendants contend that the evidence was insufficient to support the gang finding, and Melgar further contends that the trial court abused its discretion in denying his request to strike the gang enhancement. Both defendants also join in the arguments advanced by the other, as applicable.
We agree that the evidence was insufficient to support the convictions of attempted robbery and the gang findings, and therefore do not reach the other issues raised by defendants. We reverse the gang findings and order that the judgments be modified to reduce defendants’ convictions on count 3 to the lesser included offense of attempted petty theft. Otherwise, we affirm the convictions on count 1.
BACKGROUND
Around 11:00 p.m. on September 11, 2006, Joe Lechuga was inside a doughnut shop at the intersection of Whittier Boulevard and Soto Street in Los Angeles. Looking out the window, he noticed defendants Beltran and Melgar standing near each other. Melgar dropped a large bottle of beer on the ground, breaking it. Defendants next crossed the street, arriving at the northwest corner of the intersection after almost getting hit by a car. Defendants appeared to be intoxicated. A few minutes later, Lechuga looked out the window again and saw an unidentified man (John Doe) standing at a bus stop on the northwest corner of the intersection, holding onto a bicycle. Beltran grabbed the bicycle and Doe “hesitated to release it.” At that point, either Beltran or Melgar, who was standing near Beltran when Beltran grabbed the bicycle, “took a swing or something like that — waved his hand towards [Doe].” Doe then let go of the bicycle. (The taking of Doe’s bicycle relates to count 1.)
Noe Soto, who was at a nearby taco stand, also saw the bicycle being taken from Doe. Afterward, Doe approached Soto and said that his bicycle had been stolen and that his hand had been hurt. Soto noticed a cut on Doe’s hand. Doe later left the scene.
After Beltran took Doe’s bicycle, Lechuga saw Beltran walk the bicycle diagonally across the intersection to a “bus stop shelter” on the southeast corner. Melgar was walking nearby.
David Salinas testified he was sitting on the bench at that bus stop with his bicycle leaning against the shelter. He also had a backpack. Salinas heard two men who were standing behind him talking to each other. Salinas turned around to see defendant Beltran, sitting on a bicycle, talking to defendant Melgar. One of the defendants said to the other, “‘You better get the bike. You better get the bike.’” Salinas realized they must be talking about his bicycle (which, apart from the bicycle on which Beltran was sitting, was the only one there). Salinas then said to defendants, “‘You’re not talking about my bike. You better forget about it.’” Melgar responded, “‘Oh, no. . . . We wanted to buy the bike.’” Salinas described Melgar as appearing reluctant as Beltran said to Melgar, “‘Hey, you better get it. Because we’ve got to go.’”
Salinas continued that he next saw Beltran making hand gestures to Melgar as if Beltran were calling a football play, telling Melgar which way to go. Salinas also saw Beltran adjusting what appeared to be a folding knife that was in the waistband of his pants. Upon seeing the knife, Salinas decided to take his bicycle and walk away from the bus stop. Salinas had taken “a couple of steps” when he realized he had left his backpack behind. He turned around and saw Beltran grab the backpack, which was 10 to 12 feet away from where Salinas was standing. Salinas explained, “All my stuff was in it; lunch, CD player, whatever.” Beltran fled with the backpack in hand. Salinas chased Beltran, leaving his bicycle behind. As Salinas “closed [in] on” Beltran, Beltran turned and threw the backpack at Salinas’s feet, causing its contents to spill on the ground. Salinas stopped to pick up his belongings as Beltran continued to flee.
After Salinas had gathered the contents of his backpack, he went back to retrieve his bicycle. Upon doing so, he saw that the bicycle had been moved a few feet from where he had left it. Salinas also saw Melgar nearby. Salinas threatened Melgar with harm if Melgar did not go away. Melgar did so. (The taking of the backpack, not the movement of the bicycle, was the prosecution’s theory of attempted robbery in count 3.)
The police were summoned and were able to detain defendants. When apprehended, Beltran had a box cutter in his waistband.
Defendants were affiliated with the White Fence criminal street gang. Both had gang tattoos on their bodies. Los Angeles Police Officer Mario Morales, who was qualified as a gang expert, testified that murder and robbery are some of the primary activities of the White Fence gang, which claims a territory that includes the intersection of Whittier and Soto. Other White Fence gang members had sustained felony convictions of predicate crimes.
Upon being presented with a hypothetical scenario based on the robbery of Doe’s bicycle, Morales was asked whether the activities of the person who took the bicycle and his accomplice would have benefited the White Fence gang. Morales answered in the affirmative, explaining that by committing a theft with force at a prominent intersection, the perpetrators would both intimidate and gain respect from others by demonstrating that they control the territory. In addition, bicycles can be sold for cash and, because of their maneuverability and the ease with which they can be hidden, are commonly used by gang members to patrol their area and commit crimes. On cross-examination, Morales stated that he had testified as a gang expert on 26 occasions and had never rendered an opinion that a gang member’s crimes had not been committed for the benefit of the member’s gang.
Neither defendant presented any evidence in defense.
Beltran was sentenced to the middle term of 3 years for robbery, a consecutive 8 months for attempted robbery, and 10 years for the gang enhancement, for an aggregate term of 13 years 8 months. Melgar was sentenced to the low term of 2 years for robbery, a consecutive 8 months for attempted robbery, and 10 years for the gang enhancement, for an aggregate term of 12 years 8 months.
DISCUSSION
1. Sufficiency of the Evidence of Attempted Robbery
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, § 211.) “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (Id., § 21a.) “The act required must be more than mere preparation, it must show that the perpetrator is putting his or her plan into action.” (People v. Bonner (2000) 80 Cal.App.4th 759, 764.)
At trial the prosecutor asserted that an attempted robbery occurred when Beltran initially took, but then abandoned, Salinas’s backpack. On appeal, defendants do not deny that the backpack was within Salinas’s immediate presence when Beltran picked it up. And the Attorney General does not contend that the taking was accomplished by force. Rather, the crux of defendants’ argument is that the evidence did not demonstrate that Beltran’s theft of the backpack was accomplished by means of fear. We agree.
The evidence of defendants’ having taken Doe’s bicycle and having talked about taking Salinas’s bicycle created a reasonable inference that defendants intended to steal Salinas’s bicycle. And given evidence that Beltran took a swing at Doe (who was observed by Lechuga to have been cut), and Beltran had what appeared to be a knife in his waistband, it may also be inferred that Beltran was willing to cut Salinas if Salinas tried to prevent defendants from taking his bicycle. But no evidence was presented from which a reasonable inference could be drawn that defendants either put a plan into action, or even intended, to take Salinas’s backpack until the moment that Beltran picked it up after Salinas walked away from the bus shelter.
Although a robbery may occur when a victim abandons property out of fear (see People v. Coryell (2003) 110 Cal.App.4th 1299, 1303), no such abandonment occurred here. Instead of leaving his bicycle behind because he feared what defendants might do, Salinas took the bicycle in hand and started to walk away with it. Nor did fear of defendants, rather than simple inadvertence on Salinas’s part, cause Salinas leave his backpack behind. As such, fear did not play a role in Beltran’s taking of the backpack.
Citing People v. Vizcarra (1980) 110 Cal.App.3d 858, the Attorney General asserts that the “force or fear” element is not required to prove an attempted robbery. Vizcarra is inapposite. There, the defendant was standing in front of a liquor store. When a customer walked by, the defendant turned away so that his nose was against a block wall. The customer “observed [the defendant’s] peculiar behavior and the butt of a rifle protruding from his poncho.” (Id. at p. 862.) The defendant then went to his car, which was parked across the street, drove away, and was later seen driving past the liquor store. (Ibid.) These acts were found sufficient to support a conviction of attempted robbery because they “reach[ed] far enough for the accomplishment of the offense to amount to the ‘commencement of its consummation.’ [Citations.]” (Ibid.) The Vizcarra court continued: “It is true that an element of force or fear must be proved in order to establish a conviction for robbery under Penal Code section 211. It is not necessary, however, for this element to be reflected in the overt act of an attempted robbery if the crime has not progressed to that point.” (Ibid., italics added.)
“In determining whether a person has been guilty of attempted robbery, the courts are guided by the facts of each case as to when the defendant has gone further than mere preparation.” (People v. Vizcarra, supra, 110 Cal.App.3d at p. 863.) Here, there were simply no acts committed in anticipation of taking the backpack. Accordingly, defendants’ convictions of attempted robbery must be reversed. (People v. Johnson (1980) 26 Cal.3d 557, 576; see also Jackson v. Virginia (1979) 443 U.S. 307, 317–320 [99 S.Ct. 2781].)
Although we conclude that defendants’ convictions of attempted robbery were not supported by substantial evidence, “an appellate court may reduce a conviction to a lesser included offense if the evidence supports the lesser included offense . . . .” (People v. Howard (2002) 100 Cal.App.4th 94, 99; accord, People v. Martinez (1999) 20 Cal.4th 225, 241; cf. People v. Navarro (2007) 40 Cal.4th 668, 676–678.) Theft, whether grand or petty, is a lesser included offense of robbery. (People v. DePriest (2007) 42 Cal.4th 1, 50.) The crime of attempted theft was committed when Beltran, aided and abetted by Melgar, picked up Salinas’s backpack. Grand theft requires that the property taken have a value in excess of $400. (Pen. Code, § 487, subd. (a).) There is nothing in this record to suggest that the value of Salinas’s “stuff,” including his “lunch” and “CD player,” could meet this monetary threshold. Accordingly, we shall order that defendants’ convictions on count 3 be modified to reduce them to the crime of attempted petty theft.
2. Sufficiency of the Evidence of the Gang Findings
The California Street Terrorism Enforcement and Prevention Act (Pen. Code, § 186.20 et seq.) provides enhanced punishment upon allegation and proof that a charged felony was “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (Id., § 186.22, subd. (b)(1); see People v. Gardeley (1996) 14 Cal.4th 605, 616–617.) The elements of gang allegations may be proven by expert testimony. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047–1048.)
Defendants contend that the expert testimony and other evidence in this case did not support the gang findings. We agree.
In People v. Morales (2003) 112 Cal.App.4th 1176, on which the Attorney General relies, Richard and Ralph Avila spent the afternoon and evening at Joe Virgen’s house drinking beer. At one point, Richard Avila asked “‘if his home boy could come over.’” Virgen agreed and defendant and two others, who were introduced to Virgen as “‘Spooky’” and “‘Huero Joe,’” soon arrived. After the men smoked methamphetamine, defendant and his two cohorts, all of whom were members of the same gang, committed an armed robbery in which Ralph Avila was killed. (Id. at pp. 1179–1183.) A prosecution gang expert was asked to assume the facts of the case and responded that, among other things, the three gang members were “acting in association with each other” and that “the very presence of multiple gang members would be intimidating.” (Id. at p. 1197.)
The Morales court noted that although the expert’s testimony might have been insufficient to establish that the crime was committed “for the benefit of” the defendant’s gang, the enhancement is equally applicable to criminal acts committed “in association with” the gang. (People v. Morales, supra, 112 Cal.App.4th at p. 1198.) It further noted “it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang.” (Ibid.) Nevertheless, the gang finding was upheld on the basis that under the facts of the case, “the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members.” (Ibid.)
In People v. Martinez (2008) 158 Cal.App.4th 1324, the defendant argued that the evidence was insufficient to support the gang finding because, among other things, it was not established that he or his gang cohort had identified themselves as gang members while committing the charged robbery. In rejecting this assertion, the Martinez court noted that the gang tattoos of the two perpetrators were “clearly visible,” and “although [the victim and a witness] identified defendant as participating in the robbery immediately after it occurred, at trial neither could remember whom he had identified. This raises a reasonable inference they were too afraid to do so at trial based on defendant’s gang status . . . .” (Id. at p. 1333)
In contrast to Morales and Martinez, the record in this case is devoid of evidence that defendants identified themselves as gang members, had any visible tattoos, or that Doe or Salinas had any other basis of knowing of defendants’ gang status. And although it is possible to sell bicycles for cash or to use them to patrol gang territory as the prosecution’s gang expert testified, there is no reasonable basis to conclude that defendants acted with these purposes in mind.
The facts on which the expert here based his opinion were that defendants, who were within their own gang territory, aided and abetted each other in seeking to take two bicycles. But it appears that these two men, after a night of drinking beer, took a frolic and detour unrelated to their gang and merely decided to acquire a means of transportation when two bicycles were in view. (Cf. People v. Morales, supra, 112 Cal.App.4th at p. 1198.) We reject the proposition that the gang statute is so broad as to include absolutely all criminal activity solely because it is conducted by two gang members in concert. As such, the opinion of the expert that defendants’ activities were related to their gang must be discounted as being based on speculation rather than substantial evidence. (See People v. Waidla (2000) 22 Cal.4th 690, 735; People v. Gardeley, supra, 14 Cal.4th at p. 618.)
We further conclude that the gang allegations may not be adjudicated again on remand. In People v. Seel (2004) 34 Cal.4th 535, the California Supreme Court determined that when a sentence enhancement “‘is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.’” (Id. at pp. 546–547, quoting from Apprendi v. New Jersey (2000) 530 U.S. 466, 494, fn. 19 [120 S.Ct. 2348].) Relying on Apprendi, the Seel court held a premeditation finding which an appellate court determines is not supported by substantial evidence cannot be retried because premeditation is an element of the crime of attempted murder and not a mere sentencing enhancement. (People v. Seel, supra, 34 Cal.4th at p. 550.)
A defendant is as entitled to a jury trial on the elements of an enhancement statute such as Penal Code section 186.22 as he is on the elements of the underlying offenses. (People v. Sengpadychith (2001) 26 Cal.4th 316, 327.) By parity of reasoning with People v. Seel, supra, 34 Cal.4th 535, further adjudication on the gang allegations is therefore barred under the doctrine of double jeopardy, and on remand the allegations must be dismissed.
DISPOSITION
The gang enhancements on count 1 are reversed with directions to dismiss them, the trial court is ordered to modify the judgments on count 3 to reflect that defendants were convicted of attempted petty theft, and the matters are remanded for resentencing. In all other respects, the judgments are affirmed.
We concur: VOGEL, J. ROTHSCHILD, J.