Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct.No. FVI020194 John M. Tomberlin, Judge.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Defendant Manuel Luis Cruz appeals from his convictions of first degree murder (Pen. Code, § 187, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) along with gang enhancements (§ 186.22, subd. (b)(1)) as to all three counts, and a firearm use enhancement (§ 12022.53, subd. (d)) as to the murder. Defendant contends (1) the trial court prejudicially erred in instructing the jury that it could find the gang allegations and firearm allegation true based on crimes committed by gang members after the date of the charged offenses, and (2) the imposition of upper terms based on facts not found by the jury beyond a reasonable doubt violated his constitutional right to trial by jury. The People concede error in the jury instructions, but we conclude the error was harmless beyond a reasonable doubt.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
In the afternoon of October 1, 2004, defendant parked the Honda sport utility vehicle (SUV) he was driving in front of the home of Donald Woods in Victorville. Woods or his guest, Oscar Ramirez, asked defendant to move the vehicle because it was parked in front of Woods’s mailbox; defendant or his passenger Steven Gutierrez moved the vehicle.
Gutierrez was originally arrested in connection with this case, but the charges were dismissed. Gutierrez made a deal with the prosecution to testify against Cruz in exchange for a favorable plea agreement in an unrelated case in which he was charged with robbery and kidnapping and faced a life sentence. Gutierrez was allowed to plead to simple kidnapping and was sentenced to an eight-year term.
Defendant and Gutierrez later returned to the Woods house. Gutierrez approached Ramirez and asked him where he was from and if he was in a gang. Ramirez replied that he was from Mexico. Ramirez and Gutierrez got into an argument that evolved into a fistfight. Defendant produced a knife and stabbed Ramirez in the back. Ramirez then chased defendant and fought with him. Woods was not present during the fight.
Gutierrez and defendant got into their vehicle and told Ramirez they would be back with their “homies.” When they left, they crashed into another car at the end of the street and then drove away.
Gutierrez and defendant drove to a friend’s apartment in Hesperia where they tried unsuccessfully to buy a gun. Defendant wanted to go to San Bernardino to get a gun, and Gutierrez stayed at the apartment while defendant left.
Around midnight, defendant returned to the apartment in Hesperia with a person called Night Owl or Little Night Owl. Defendant had a handgun that looked like a .38-caliber revolver, and Night Owl had a sawed-off rifle. Codefendant Alberto Arroyo, who also had a gun of some kind, said he would go to the Woods house with them.
The record does not indicate that Night Owl was ever identified or apprehended.
The trials of defendant and Arroyo were severed. Although this court previously consolidated their appeals for purposes of briefing, oral argument, and opinion, we later unconsolidated the appeals.
In the early morning hours of October 2, Woods and his fiancée, Eleanor Guerra, were sleeping on the sofa bed in the living room; Guerra’s son and two other children were sleeping in a bedroom. They were awakened by the sound of windows breaking, and then shooting began. Woods shielded Guerra’s body with his own so she would not get shot, but Woods himself was shot four times. One shot penetrated his lung, liver, kidney, and bowel, and he died from extensive blood loss.
A neighbor witnessed the fight in front of Woods’s house on the afternoon of October 1. At about 2:00 a.m. on October 2, she heard shots and looked outside. She saw three or four people run back to an SUV, the same one she had seen the previous afternoon. However, she could not describe any of the people.
Officers collected fired bullets and bullet fragments from inside the Woods home, an unexpended rifle shell from outside one of the windows, and a fired bullet from Woods’s body. Officer James Williams stated his opinion that the four fired bullets had been fired from a handgun, most likely a revolver.
A crime scene investigator photographed numerous shoe impressions in the dirt in the Woods front yard. Robert Ristow, a criminalist employed by the County of San Bernardino, compared those shoe impressions with a pair of K-Swiss tennis shoes obtained from defendant’s jail property and determined that one pattern that was in two of the photographs shared the same pattern, design, placement, and general wear as defendant’s tennis shoes. Ristow stated his opinion that the two shoe impressions in those photographs could have been made by defendant’s tennis shoes.
Gutierrez testified he had been a member of the West Side Verdugo gang in the fall of 2004 and of the Mount Vernon clique within that gang. Manuel Gaitan, a San Bernardino police officer, testified as a gang expert. In his opinion, Gutierrez, defendant, and one Benjamin Frank Chagolla were members of the West Side Verdugo gang. Officer Gaitan testified that one of the primary activities of the West Side Verdugo gang was the commission of crimes such as robbery, carjacking, and murder. The officer stated his opinion that all the crimes with which defendant was charged had been committed for the benefit of the West Side Verdugo street gang because the assault and murder raised the gang’s status, and the stolen vehicle assisted the gang in the commission of crimes. With regard to predicate offenses, the prosecution presented evidence that Chagolla and one Steve Agudo had pleaded guilty to a burglary alleged to have been committed on February 14, 2005, and had admitted the offense had been committed for the benefit of a criminal street gang. Defendant had several gang tattoos.
Estevan Bennett owned the Honda SUV used in the murder. On the morning of September 29, 2004, someone had stolen the Honda from the front of Bennett’s house in Rialto. Bennett had not given defendant or Gutierrez permission to drive it. The Honda was recovered in the City of Highland on October 22, 2004.
Defendant and Gutierrez were in custody on October 29 and were left in the same interview room together. Their conversation was video- and audiotaped, and the tape was played for the jury. Defendant made statements that could be interpreted as admissions that he had been at the scene during the fistfight between Ramirez and Gutierrez and that defendant had been using the Honda SUV without the owner’s authorization.
The jury found defendant guilty of first degree murder (§ 187, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)). The jury found true the allegations that all three offenses had been committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that a principal in the murder had intentionally discharged a firearm causing death (§ 12022.53, subd. (d)).
The trial court sentenced defendant to 25 years to life for the murder, and to a consecutive term of 25 years to life for the firearm enhancement allegation attached to the murder and dismissed the gang enhancement allegation as to that count. The court imposed the aggravated term of four years for the assault with a deadly weapon conviction, the aggravated term of five years for the gang enhancement attached to that offense, eight months for the unlawful driving or taking of a vehicle, and one year four months (one-third of the aggravated term) for the gang enhancement attached to that offense. The trial court ordered the determinate term to run consecutive to the indeterminate term.
III. DISCUSSION
A. Instructions on Gang Enhancements
Defendant contends the trial court prejudicially erred in instructing the jury that it could find the gang enhancement allegations (and correspondingly, the firearm use allegation) true based on crimes committed by gang members after the charged offenses.
1. Background
The trial court instructed the jury that to find true the gang enhancement allegations under section 186.22, subdivision (b)(1), the jury had to find that the charged offenses were committed “for the benefit of, at the direction of, or in association with a criminal street gang,” with the intent “to assist, further or promote any criminal conduct by gang members.” In defining a criminal street gang, the trial court instructed the jury that a criminal street gang “has as one or more of its primary activities the commission of murder, robbery, carjacking, burglary, assault with a deadly weapon or unlawful vehicle taking or driving” and “whose members, whether acting alone or together[,] engage in or have engaged in a pattern of criminal activity.” The court further instructed the jury that a pattern of criminal gang activity means, among other things, “[t]he commission of any combination of two or more of the following crimes: Murder, Robbery, Carjacking, Burglary, Assault with a Deadly Weapon or Unlawful Vehicle Taking or Driving.”
The court continued, “You may not find that there was a pattern of criminal gang activity unless all of you agree that two or more crimes that satisfy these requirements were committed, but you do not have to all agree on which crimes were committed. [¶] To decide when a member of the gang or the defendant committed Murder, Burglary, Assault with a Deadly Weapon or Unlawful Vehicle Taking, please refer to the separate instructions that I have given you on those crimes.”
The trial court stopped reading the instructions and stated that although defendant was not accused of burglary, it was expected, based on the evidence in the case, that the prosecutor would argue that someone, a gang member other than defendant, had committed the crime of burglary. The trial court then defined the crime of burglary for the jury.
In closing argument, the prosecutor discussed the definition of a criminal street gang, and specifically, the element of a pattern of criminal activity: “One of the primary purposes of that group has to be to commit certain enumerated offenses. Included in that list are murder, robbery, carjacking, and burglary. Those are all crimes mentioned by Officer Gaitan when he was here testifying to you. Assault with a deadly weapon — that is what ADW means — and unlawful taking of a vehicle. All these may be used to show a pattern in criminal activity, which is a requirement for findings in a criminal street gang.
“This term two has a definite pattern of criminal activity. This means that some of the offenses I was just mentioning were committed within a certain time frame . . . . At least one of them has to be after September 26th of 1998, the date at least one of the offenses was committed within three years of the most recent offense.
“Some of the languages also include [sic] that the instructions that the Court read to you that you consider the current offense as part of the overall pattern of criminal activity in considering whether this is a criminal street gang or not.”
After discussing evidence relating to other elements of the criminal street gang allegation, the prosecutor continued, “That’s connected with two other pieces of evidence that you haven’t really had an opportunity to examine but will be part of the body of evidence that you will look at back in the jury deliberations. Holding Exhibits 196 and 197. These are certified prior convictions of the two people that Officer Gaitan told you about. They’re both convictions for burglary, and they both have the allegation of criminal street gang activity, which both defendants admitted in that case. [¶] This is part of your pattern of criminal activity to help demonstrate that West Side Verdugo is indeed a criminal street gang.” (Italics added.)
2. Analysis
For purposes of the gang enhancement under section 186.22, subdivision (b)(1), and correspondingly for the firearm use enhancement under section 12022.53, subdivision (d), which incorporates a violation of section 186.22, subdivision (b), a pattern of criminal gang activity means “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more” of listed offenses that were committed on separate occasions or by two or more persons. (§ 186.22, subd. (e).)
Section 186.22, subdivision (b)(1), provides for enhanced punishment for “any person who is convicted of a felony 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 . . . .”
Section 12022.53, subdivision (d), provides for an “additional and consecutive” term of imprisonment for 25 years to life for “any person who, in the commission of [specified felonies], personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice . . . .” Subdivision (e)(1) of that section provides that such enhancement shall apply when, among other things, “The person violated subdivision (b) of Section 186.22.” (§ 12022.53, subd. (e)(1).)
Here, the prosecutor introduced evidence of the burglary offenses committed by Chagolla and Agudo in February 2005 to show that members of the West Side Verdugo gang had engaged in a pattern of criminal gang activity. The prosecutor relied specifically on those burglary convictions in arguing to the jury that members of the West Side Verdugo gang had engaged in a pattern of criminal gang activity. The trial court instructed the jury it could rely on those burglary convictions to find a pattern of criminal gang activity. Thus, the instructions and the prosecution’s argument expressed a legally inadequate theory — that a pattern of criminality could be based on crimes that took place after the charged crime for purposes of the gang enhancement.
The People concede the trial court erroneously instructed the jury that it could consider crimes committed after the date of the charged offenses to establish the predicate offenses necessary to find that West Side Verdugo fell within the statutory definition of a criminal street gang. The People argue that the error was harmless because “any properly instructed jury would have found the requisite predicate acts showing a pattern of criminal gang activity.” As this court has explained, however, we cannot find that an instructional error on an element of an offense did not contribute to the verdict simply by concluding that a properly instructed jury would have found the existence of that element. (People v. Lewis (2006) 139 Cal.App.4th 874, 884-891 (Lewis)[Fourth Dist. Div. Two].)
In Lewis, as in the present case, the prosecutor argued that any reasonable jury would have found the elements as to which the jury had been misinstructed. (Lewis, supra, 139 Cal.App.4th at p. 884.) We held that under applicable United States Supreme Court precedents, “the harmless error inquiry is directed at determining whether the error actually contributed to the jury’s verdict at hand. The test is not whether a hypothetical jury, no matter how reasonable or rational, would render the same verdict in the absence of the error, but whether there is any reasonable possibility that the error might have contributed to the conviction in this case. If such a possibility exists, reversal is required.” (Id. at p. 887.) Similarly, the California Supreme Court has held that “[w]hen one of the theories presented to a jury is legally inadequate, such as a theory which ‘“fails to come within the statutory definition of the crime”’ [citations], the jury cannot reasonably be expected to divine its legal inadequacy. The jury may render a verdict on the basis of the legally invalid theory without realizing that, as a matter of law, its factual findings are insufficient to constitute the charged crime. In such circumstances, reversal generally is required unless ‘it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.’ [Citation.]” (People v. Perez (2005) 35 Cal.4th 1219, 1233.)
The record in the present case establishes that the jury found the gang enhancement allegation true on a proper theory. The predicate crimes used to establish a pattern of gang activity may include the charged offenses. (People v. Gardeley (1996) 14 Cal.4th 605, 624-626.) Defendant was charged with assault with a deadly weapon and unlawful driving or taking of a vehicle. The trial court listed those crimes as potential predicate offenses in its instructions to the jury, and the jury found defendant guilty of both those charges and found gang enhancement allegations true as to both those crimes.
The evidence showed that defendant was a member of West Side Verdugo gang — he had several gang tattoos — and Officer Gaitan testified, based on his training, research, and investigation, that defendant was a West Side Verdugo member. Gutierrez testified he had been a West Side Verdugo gang member when the crimes were committed. The evidence was undisputed that the assault and unlawful driving or taking offenses were committed on separate occasions. In finding defendant guilty of the substantive crimes charged, the jury thus necessarily found all the elements of the gang enhancement allegation true under a proper theory, and the instructional error was harmless beyond a reasonable doubt.
B. Defendant’s Sentence
Defendant contends the imposition of aggravated terms based on facts not found by the jury beyond a reasonable doubt violated his constitutional right to trial by jury. In his reply brief, defendant acknowledges that based on People v. Black (2007) 41 Cal.4th 799, 818 (decided after defendant filed his opening brief) the trial court permissibly relied on his prior criminal history in imposing the aggravated terms. Defendant continues to present the issue to preserve it for federal review. We find no error.
IV. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., GAUT, J.
In his separate trial, Arroyo was found guilty of first degree murder (§ 187, subd. (a)), and a gang enhancement (§ 186.22, subd. (b)) and a firearm use enhancement were found true (§ 12022.53, subd. (d).)