Opinion
G053692
03-01-2018
THE PEOPLE, Plaintiff and Respondent, v. JAVIER DAVID ESPARZA, Defendant and Appellant.
Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10CF1250) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Javier David Esparza of second-degree robbery (Pen. Code, § 211; all statutory citations are to the Penal Code), receiving stolen property (§ 496, subd. (a)), possession of a firearm by a felon (§ 12021, subd. (a)(1)), and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found true allegations that Esparza used a firearm in the commission of the robbery (§ 12022.53, subd. (b)) and that he committed the robbery, received the stolen property, and possessed the firearm for the benefit of, or in association with, a criminal street gang. (§ 186.22, subd. (b)(1).) The trial court sentenced Esparza to an aggregate term of 23 years.
The jury also convicted Esparza's codefendant, Yoni Velasquez, of related offenses and enhancements, which we upheld in an unpublished opinion resolving Velasquez's separate appeal. (People v. Velasquez (Dec. 1, 2014, G048172) [nonpub. opn.].)
Esparza challenges the sufficiency of the evidence to support his active gang participation conviction and the jury's conclusion he committed the other offenses for the benefit of, or in association with, a criminal street gang. As we explain, these challenges are without merit, and we therefore affirm the judgment.
I
FACTS AND PROCEDURAL HISTORY
On May 15, 2010, Christian Rosales reported his black Infiniti G35 vehicle stolen after someone took his car keys, cell phone, and the car while he played handball in Fountain Valley. The police located the vehicle about a week later in downtown Santa Ana, and when Rosales retrieved it from the police impound lot, he found an orange spray paint can inside, along with orange paint on the seats and on a towel inside the car. Rosales also found gloves in the front passenger area and two car stereo radios that did not belong to him.
Earlier, a few days after Rosales's car was stolen and before the police recovered it, two men in a black Infiniti pulled up next to Jose Delgado Velez as he walked to pick up his son from school, near Wilshire Avenue and Shelley Street in Santa Ana. The passenger opened the car door and asked Velez, "Where are you from," which Velez interpreted to relate to "gangbanging," so he replied "I don't bang." Velez hastened to explain he had recently moved to the area.
But the passenger pulled out a gun from under his sweatshirt, cocked it, and pointed it at Velez. Velez believed the black gun was a "Glock or a .45." Velez noticed both individuals wore gloves. When the passenger asked for money, Velez disclosed he did not have any, but the passenger pressed further, asking, "What do you have," and Velez noted his cell phone, which the passenger demanded. Frightened, Velez gave his phone to the passenger, who then put his gun into his sweatshirt pocket. The passenger passed the phone to the driver, who made calls during the remainder of the encounter, identifying himself in making or receiving the calls by stating, "It's Clown."
Meanwhile, the passenger wanted Velez to direct them to Velez's house, but Velez declined. Changing the subject, the passenger offered to sell Velez a stereo or a ladder, pulling these items out of the vehicle's rear seat to show Velez as he stood by the car. Valdez asked permission to leave, but the passenger rebuffed his request. When a woman walked across the street nearby, the passenger warned Velez, "Don't say nothing." The encounter appeared to end when the driver opened the trunk and directed Velez to "check out the speakers in the back," only to drive away when Velez walked to rear of the vehicle. About five minutes later, as Velez continued walking, the men drove by again, with the passenger displaying his phone and taunting him, "We got the phone. Thank you, sucker." Velez called the police from his son's school.
A responding officer noticed the black Infiniti pass him in the opposite direction with two people inside, but lost sight of the vehicle in traffic. The officer later spotted the car parked at a curb, where he saw Velasquez approach and open the driver's side door. Velasquez fled and, as the officer gave chase, he noticed another possible suspect running in the opposite direction. Seeing Velasquez turn his upper body back toward him as he ran, and believing him armed, the officer fired a shot, which struck Velasquez in the foot. Another officer apprehended Velasquez after he scrambled over a wall, and Esparza was also later taken into custody.
Crime scene investigators found two car stereos inside the Infinity, one on the arm rest and another underneath the seat, and they also located a cell phone between the front passenger seat and the center console. Forensic analysis showed that Esparza's DNA matched samples taken from a glove found in the Infiniti and from a straw found in front seat cup holder. DNA found on the steering wheel and gear shift matched Velasquez's DNA samples, as did blood on a shoe and on the sidewalk nearby.
At trial, Velez did not identify the defendants as his assailants, but on the date of the incident, he identified Esparza from a photograph as the passenger in the black Infinity.
Detective Miguel Cuenca of the Orange Police Department testified as the prosecution's gang expert. He explained that Orange Varrio Cypress (OVC) is a criminal street gang composed of approximately 20 to 30 members in the City of Orange. The gang's primary activities include assault with deadly weapons, the sale of methamphetamine, and illegal firearm possession. OVC members refer to themselves and fellow members as "Creepers," "Los Creepers," "OVC," and "OVECE." Members use the color orange in their clothing and other mediums, including spray painted markings, to identify their gang affiliation, and they use special hand signs to show their gang allegiance, including forming their fingers into the letters "OVC."
Cuenca explained the role of "hit ups" and other phenomena in the gang culture in which OVC operated. In a hit up, a gang member or members challenge citizens or suspected rival members they encounter on the street with the question, "Where are you from," to elicit the person's gang allegiance and, in so doing, assert the dominance of the challenger's gang by forcing a violent confrontation. Cuenca explained that gang members gain respect among fellow members and rival gangs by engaging in violent acts, committing crimes, obtaining money or property for their gang, associating with members of their gang, and asserting their gang's presence by displaying their gang's color prominently. To increase their level of perceived respect in this culture, gang members brag about their crimes and violent acts to other gang members. Cuenca also explained the concept of "putting in work" for one's gang by obtaining money or valuables for the gang, and obtaining firearms or stealing vehicles to use in committing crimes.
Cuenca noted that tattoos play an important role in gangs because only members can obtain tattoos associated with the gang; an individual who obtains an unauthorized tattoo generally will face violent repercussions, from a beating to murder. Cuenca personally had observed and photographed Esparza's gang-related tattoos in a contact he made with Esparza several months after the offenses were committed; they included a tattooed collage of letters and a skull on the back of Esparza's head, spelling out "OVECE."
Cuenca explained in his testimony that he prepared a "gang background" of police documentation relating to Esparza, which consisted of "six STEP notices from the year 2000 to 2004," "three F.I. cards," 15 or 16 police reports, and various photographs. The photographs depicted Esparza wearing clothing displaying OVC colors, associating with OVC gang members, and making OVC hand signs. Esparza explained that "a STEP notice is [a] notice of determination given—issued to a person. Letting them know that a certain group is a criminal street gang. . . . It looks somewhat like a citation. It's filled out [with the] date, name of the officer, [and] statements [made]. It's issued a report number and issued to the individual." Similarly, a field identification card or F.I. card records "information in regards to a contact from an officer [with] an individual." Cuenca noted that the contacts disclosed in the foregoing materials documented Esparza's association with OVC gang members and that, among fellow gang members, he went by the nickname or moniker, "Gizmo." Cuenca also noted "Clown" was Velasquez's gang moniker.
Cuenca opined that Esparza was an active participant in the OVC gang, basing his opinion on "[t]he facts of the case, the entire [gang] background . . . , the photos [with their] gang indicia, and my personal knowledge of OVC." Cuenca also noted Esparza's tattoos as an additional basis for his opinion. In response to a lengthy hypothetical, Cuenca gave his opinion that the armed robbery and related offenses benefitted the OVC gang because it increased OVC's reputation for viciousness, earned the gang "respect," and made it less likely citizens would report OVC criminal activity to the police. Cuenca also opined the hypothetical offenses were committed in association with a known gang member, and Cuenca previously had detailed Velasquez's extensive OVC gang history.
II
DISCUSSION
Esparza challenges the sufficiency of the evidence to support his active gang participation conviction (§ 186.22, subd. (a)) and the jury's conclusion he committed the other offenses for the benefit of, or in association with, a criminal street gang (§ 186.22, subd. (b)). We review these claims under the deferential substantial evidence standard of review. Because an appellate court must "give due deference to the trier of fact and not retry the case ourselves," an appellant challenging the sufficiency of the evidence "bears an enormous burden." (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
Specifically, we must view the record in the light most favorable to the judgment below. (People v. Elliot (2005) 37 Cal.4th 453, 466.) The test is whether substantial evidence supports the verdict (People v. Johnson (1980) 26 Cal.3d 557, 577; Jackson v. Virginia (1979) 443 U.S. 307, 318), not whether the appellate panel is persuaded the defendant is guilty beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) Consequently, we must presume in support of the judgment the existence of facts reasonably drawn by inference from the evidence. (Ibid.; see People v. Stanley (1995) 10 Cal.4th 764, 792 [same deferential standard of review applies to circumstantial evidence].) The fact that circumstances can be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933 (Bean).)
The active gang participation offense punished in section 186.22, subdivision (a), requires gang involvement that is more than nominal or passive (People v. Castenada (2000) 23 Cal.4th 743, 750), with knowledge that the gang's members engage in or have engaged in a pattern of criminal activity, and the person must "'willfully promote[], further[], or assist[] in any felonious criminal conduct by members of that gang.'" (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.)
Esparza aims his challenge on appeal at the gang expert's testimony. He characterizes the expert's testimony as merely recounting for the jury the fact that a "gang background" dossier the expert compiled on Esparza included six STEP notices, three FI cards, and 15 or 16 police reports, and on that basis, without divulging much of the contents of the documents or the circumstances detailed in each, the expert offered only a bare, unsupported opinion that Esparza was an active gang member. (Cf. In re Alexander L. (2007) 149 Cal.App.4th 605, 612 ["conclusory testimony cannot be considered substantial evidence as to the nature of the gang's primary activities"].) As the Supreme Court has observed, "'[T]he law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based.'" (People v. Gardeley (1996) 14 Cal.4th 605, 618, 622 (Gardeley), disapproved on another ground in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13 (Sanchez); see Sears, Roebuck & Co. v. Walls (1960) 178 Cal.App.2d 284, 289 ["an expert's opinion is no better than the reasons given for it"].)
We note that Sanchez did not preclude expert witnesses in a gang prosecution from disclosing to the jury that the witness has reviewed and relied upon STEP notices, FI cards, or police reports in forming his or her opinion. (Sanchez, supra, 63 Cal.4th at pp. 685-686.) To the contrary, "Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Id. at p. 685, original italics.) As Sanchez explained, "There is a distinction . . . between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception." (Id. at p. 686.) The former is permitted, but where the defendant objects, case-specific hearsay in the material must be excluded. Of course, if only a generic description of the source material is admitted, Sanchez recognized "that merely telling the jury the expert relied on additional kinds of information that the expert only generally describes may do less to bolster the weight of the opinion" than case-specific hearsay that enhances the expert's opinion precisely because the jury regards it as true. (Id. at p. 686.)
Here, the gang expert told the jury that the gang background material he reviewed showed Esparza's repeated contacts with "other OVC gang members" and that Esparza had a gang moniker, which the expert explained is a nickname used to refer to the individual within the gang. Because Esparza made no objection to this testimony, the jury properly and reasonably could infer that the sheer number of Esparza's documented OVC gang contacts and the fact he garnered a nickname within the gang lent support to the conclusion his participation in the gang was more than nominal or passive. As a result, the jury also could infer Esparza likely knew of the gang's criminal activities because members typically "talk to each other about the[ir] crimes," as the gang expert explained. They do so because "[i]t goes back to respect. When you put in work, commit a crime for [the] gang, gang members will tell other gang members to let them know that hey, I'm . . . earning my respect, I'm keeping my respect" within the gang.
In addition to the foregoing, ample other evidence supported the substantive gang count. While Esparza suggests the gang expert relied "primarily" on the background material he reviewed, the record discloses much more. The expert cited not only the numerous STEP notices, FI cards, police reports and Esparza's moniker, but also "[t]he facts of the case," photographs of Esparza in OVC regalia while using OVC handsigns with other OVC members, and Esparza's tattoos. Evidence of a defendant's active participation in a gang may be gleaned from nicknames and monikers (People v. Galvez (2011) 195 Cal.App.4th 1253, 1258), the current charges against the defendant and his or her association with other known gang members (People v. Morales (2003) 112 Cal.App.4th 1176, 1198), use of gang hand signals or typical clothing (People v. Williams (2009) 170 Cal.App.4th 587, 609), and tattoos (People v. Duran (2002) 97 Cal.App.4th 1448, 1455). Because evidence in all these categories amply supported Esparza's conviction for active gang participation, his challenge on appeal is without merit.
Esparza's challenge to the sufficiency of the evidence to support the gang enhancement is similarly without merit. The same standard of review applies in determining whether substantial evidence supports an enhancement. (People v. Gamez (1991) 235 Cal.App.3d 957, 977, disapproved on another point in Gardeley, supra, 14 Cal.4th at p. 624, fn. 10.) In applying this standard, we must affirm the judgment unless under "no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.)
Esparza focuses his challenge on the gang expert's conclusion his armed robbery, receiving stolen property, and firearm offenses benefitted the OVC gang (§ 186.22, subd. (b)). In effect, Esparza argues the jury reasonably could conclude he and Velasquez conducted the robbery solely for their own benefit, unrelated to the gang. But the fact the evidence could be reconciled with a contrary conclusion is not the standard. (Bean, supra, 46 Cal.3d at pp. 932-933.)
Moreover, the evidence Esparza issued the standard gang challenge ("Where are you from") to initiate the armed robbery, and that he and Velasquez occupied a stolen car the jury could infer they splattered on the inside with orange spray paint, supports applying the enhancement because Esparza committed the offenses "in association with" Velasquez (§ 186.22, subd. (b)), a well-documented and undisputed OVC member. (People v. Albillar (2010) 51 Cal.4th 47, 62 (Albillar). The prosecution need not establish that the underlying felonies benefit the gang, but only that the defendant committed the offenses in association with fellow gang members. (Ibid.; see, e.g., People v. Ochoa (2009) 179 Cal.App.4th 650, 661, fn. 7 [evidence sufficient for gang enhancement when the defendant commits the offense in association with a fellow gang member].)
Relying on People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), Esparza argues the mere fact two gang members commit an offense together does not establish the gang enhancement applies. (Id. at p. 853 [no gang benefit shown where charged offense was not among gang's primary activities]; see also Albillar, supra, 51 Cal.4th at p. 62 [recognizing "'it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang'"].) But Ramon has been aptly criticized for ignoring the association prong of the gang enhancement. (Ochoa, supra, 179 Cal.App.4th at p. 661, fn. 7 [observing that the defendant in Ramon acted in association with his gang when he drove a stolen vehicle with a fellow gang member].) Additionally, Ramon is distinguishable because here the armed robbery Esparza and Velasquez committed included assault with a firearm, which the gang expert identified among OVC's primary activities, lending support to the jury's conclusion the offense was gang related.
Esparza observes that the perpetrators must associate "together as gang members" for the enhancement to apply (Albillar, supra, 51 Cal.4th at p. 62, original italics), but the hit-up here preceding the robbery amply illustrated the duo's gang purpose. The jury also could infer from the duo's choice to commit the armed robbery in a vehicle festooned with orange spray paint, while Velasquez also felt at ease around Esparza to use his gang moniker, "Clown," in making phone calls on the victim's stolen phone, that the two men relied on their mutual gang ties to support each other in committing the offense and avoiding apprehension. (See ibid. ["their common gang membership ensured that they could rely on each other's cooperation in committing" the underlying crime and "that none of them would cooperate with the police"].) Substantial evidence supports the enhancement.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.