Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeals from a judgment of the Superior Court of Orange County, Super. Ct. Nos. 05NF2667, 06NF3781, Craig E. Robison, Judge.
Gregory L. Cannon, 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, Assistant Attorney General, Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Jose de Jesus Martell was convicted of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and of being an active member of a criminal street gang (§ 186.22, subd. (a).) The jury also concluded the assault was committed for the benefit of and in association with the Monos street gang, and with the specific intent to promote, further, and assist in criminal conduct by members of that gang (§ 186.22, subd. (b)(1).) On the basis of that verdict, plus Martell’s guilty plea to reduced charges in a related case, the court sentenced him to an aggregate term of four years for both cases.
All further statutory references are to the Penal Code.
Martell argues the evidence was insufficient to support either the jury’s determination that Monos was a “criminal street gang” as defined in section 186.22, or its conclusion that he was an “active participant” in that gang. The prosecution argues he waived his right to this appeal as part of the combined plea and sentencing agreement which resulted in the aggregate term, and that, at any rate, the evidence was sufficient.
We agree with the prosecution. The reporter’s transcript reflects that Martell was advised, prior to accepting the plea and sentencing deal offered to him, that he would receive an “aggravated sentence” of four years in the instant case, which had been tried, and would waive both his “right to appeal and [his] right [to have] a jury trial on the aggravating factors in order to get [his] sentence of four years.” In exchange for that agreement, Martell would be allowed to plead guilty to reduced misdemeanor charges in the related case, which was pending in a different court. The court made it clear to Martell that while he had a right to appeal “the decisions and orders of this court,” he was giving up that right as part of an “agreement to resolve all these matters in a way that . . . is in [his] best interests.” That exchange was sufficient to demonstrate Martell’s waiver of his right to pursue this appeal.
In any event, we also agree with the prosecution’s contention the evidence was sufficient to support the jury’s conclusions. The police officer who testified as a gang expert in this case had been assigned to a gang suppression unit in La Habra, where the Monos gang operates, for over five years. His personal experience in dealing with the Monos gang constituted sufficient foundation for his testimony about the nature of that gang. And the very nature of the assault committed by Martell in this case – an unprovoked attack on a young man who had been warned to stay out of Monos territory – was a sufficient basis for the jury to infer that Martell remained an “active” part of the gang. The judgment is affirmed.
FACTS
Efrain Gonzalez grew up on Grace Street in La Habra. During his youth, he had associated with members of the Monos street gang, although he was not a member of the gang. In June of 2005, Gonzalez was working at a nearby market when he was confronted by three young men, warned that Grace Street was Monos territory, and told the gang did not want him to go there.
However, in defiance of that warning, Gonzalez went to Grace Street, where his father continued to reside, on July 13, 2005. As Gonzalez was driving down the street, he passed a group of young men, including Martell, and one of those men threw a bottle at his windshield, causing it to shatter. Gonzalez then pulled into his father’s driveway, got out of the car, and attempted to go inside.
Before he could do that, Martell obtained a tire iron from the trunk of a nearby vehicle, and along with several other young men, quickly approached. Martell came within two or three feet of Gonzalez, raised the tire iron over his head, and said “this is Vario Monos, this is my street.” Martell then abruptly dropped the tire iron, and he and the other young men all ran away, apparently because they saw an approaching police car.
Martell was subsequently arrested, and charged with assault with a deadly weapon (§§ 182, subd. (a) & 245, subd. (a)(1)); assault with force likely to produce great bodily harm (§ 245, subd. (a)(1)); and active participation in a criminal street gang (§ 186.22, subd. (a).) It was also alleged that Martell had committed the assault offenses for the benefit or direction of, or in association with the Monos street gang, with the intent to assist in criminal conduct by members of that gang. (§ 186.22, subd. (b)(1).)
At the trial in this case, the prosecution relied on the testimony of Clint Angle, who had been employed as a detective with the City of La Habra Police Department for 12 years. Angle explained that as part of his training when first hired, he learned the “different gang areas in La Habra, . . . what gangs were currently operating within the City of La Habra, who their rivals were, [and] where their territories were . . . .” For the prior five and a half years, Angle had been assigned to the “Special Investigations Unit with [a] primary assignment being gang violence suppression.” In that capacity, his primary responsibilities are to investigate all gang-related crime, with a specific focus on “gang violence suppression, going out, contacting gang members on the street, investigating crimes as they occur . . . .” During his tenure working on gang violence suppression, Angle has investigated “several hundred gang-related crimes,” and has attended three different week-long national conferences on gang-violence.
Through his work on gang violence suppression, Angle has identified several gangs operating within the City of La Habra, including the Monos gang, which operates on the west side. Angle stated the Monos gang has two “cliques,” or subset factions within the gang, each of which has its own identity.
Angle explained the Monos gang was formed in the 1980’s. It was initially a “party crew,” but their parties would be crashed by members of other gangs. Eventually, the group evolved into its own gang, and according to Angle is a “traditional Hispanic street-oriented turf gang” – meaning “they stake out a particular area of the city. They claim it as their own. They mark it up with graffiti. Generally they’ll have members do what’s called posting up to defend their territory. And they will actually accept challenges from the other gangs that want to come in and want to fight them.”
Angle testified that when someone demonstrates what is perceived as “disrespect” for the Monos gang, its members are expected to react immediately, and he described possible reactions as including even homicide. Angle stated that Monos gang members have committed crimes including “murder, attempt[ed] murder, assaults with a deadly weapon, assault and batteries, vandalism, thefts of different scales, including auto theft, a lot of possession of drugs, [and] some drug sale cases . . . .” Angle also discussed two Monos crimes in detail, including an attempted murder in which the perpetrator “claimed” the Monos gang just before stabbing the victim, and an auto theft, in which the Monos member was caught driving the vehicle with another member of the gang.
Angle also explained that, as is typical with gangs, membership in Monos is expected to be permanent, and a member who attempts to disassociate himself from the gang would not be welcomed on the gang’s turf.
Additionally, Angle testified about Martell’s history as a Monos gang member. He stated that beginning in 1995 and extending into 2004, the police had 27 “field interview cards” for Martell, indicating they had personal contact with him in connection with gang patrols on 27 different occasions. Martell had admitted to police that he was a Monos member on multiple occasions, most recently in May of 2004. Martell was photographed “throwing gang signs” along with other young men in 2002, and also has a tattoo across his stomach that says “Monos” in six-inch letters. Based upon that evidence, Angle opined that Martell was an active member of the Monos gang in June of 2005, the date he was accused of assaulting Efrain Gonzalez.
Finally, Angle also opined that Martell’s actions giving rise to the assault charges were carried out for the benefit of the Monos gang, and with the idea of promoting the gang’s criminal conduct. Angle suggested the conduct would benefit the gang because gangs “want the best reputation that they can get through acts of violence or fear or intimidation. . . . [¶] By doing this in the community, especially in the territory where they are at, that level of violence goes as a message to everyone out there that once again, that is their street, their territory, this is what they claim, not to disrespect them, not to go against what they say or you will suffer the consequences.”
Martell testified in his own defense. He admitted joining the Monos gang when he was in high school, and acknowledged having a “Monos” tattoo, which he got in late 2000 or 2001. Martell denied having participated in any crimes with Monos other than under-aged drinking.
However, Martell also claimed to have quit the gang in 2001, following the birth of his daughter, and his move to Fullerton. He denied ever going back to Grace Street to visit with Monos gang members, but then admitted attending “one of their parties” in La Habra in 2004.
Martell also testified that when he was stopped by La Habra police in 2004, he admitted then-current membership in the Monos gang, but explained he had done so only because he was in the company of two younger Monos “associates” at the time the police questioned him, and would have faced unpleasant consequences if he had denied gang membership.
Martell stated he regretted his “Monos” tattoo, but had not removed it because he understood the removal procedure to be both painful and expensive. He also acknowledged he was concerned that if Monos members ever learned he had removed the tattoo, they might interpret the decision as a sign of disrespect to the gang.
Martell admitted knowing that “members of Monos gang commit crimes,” and that some are on probation or parole. He stated he was “sure some of them have” committed violent assaults, and knew that some “do use drugs and they are drug addicts.” He stated he was aware of one Monos member who was doing a life sentence in prison for murder.
Regarding the events on July 13, 2005, Martell claimed he had been at a company picnic arranged by his employer, and decided to swing by the old neighborhood to visit a friend on the way home. He unsuccessfully tried to contact that friend on his cell phone, but did speak to some other people. He explained he was sitting in his parked car on Grace Street, and talking on his cell phone to a woman named Julie, when Gonzalez drove down the street. There were approximately 12 guys across the street, drinking beers. While Martell was on the telephone, he heard Gonzalez’ windshield being smashed by the thrown beer bottle.
After the crash, Martell saw the group of young men start to walk toward the house where Gonzalez had parked his car, and he got out of his own car. He then saw a group of people coming out of the house where Gonzalez had parked, and one of the men had a bat in his hand. Martell was afraid the man would injure him or damage his car, and thus Martell went to his trunk and got out a tire iron. He denied ever approaching Gonzalez with the tire iron, claiming instead that he had at all times remained behind his car. He also denied saying anything to Gonzalez; as Martell explained, “[I’d] never seen [Gonzalez] before in my life. Why would I say something?” About the time Martell saw the police car driving down the street, everyone ran away, including the guys with Gonzalez. Martell himself “walked across the street,” away from his car, even though he had done nothing wrong. He could not explain why he did not choose to stay with his car.
On October 25, 2006, the jury rendered its verdict finding Martell guilty of the charge of assault with force likely to produce great bodily injury, and the charge of being an active participant in a street gang. The jury also found true the allegation that Martell had committed his assault for the benefit of or at the direction of the Monos gang. But they deadlocked on the charge of assault with a deadly weapon, and the court declared a mistrial on that count.
On October 27, 2006, two days after the verdict, the prosecution filed a separate complaint in a different court, in which it charged Martell with three felony counts and one misdemeanor count related to his alleged efforts to intimidate witnesses who had cooperated in the prosecution of the first case. On March 9, 2007, the court granted the prosecution’s motion to reduce the felony counts in the second case to misdemeanors, dismiss some of the gang allegations in that case, and to accept Martell’s guilty plea to those misdemeanors, with an agreement that Martell’s aggregate sentence for both cases would be four years.
Specifically, the new case against Martell charged him with attempted threatening of a witness by force (§§ 664 & 140, subd. (a)); possession of a deadly weapon (§ 12020, subd. (a)(1)); active participation in a street gang (§ 186.22, subd. (a)); and misdemeanor trespassing (§ 602, subd. (1)).
Prior to the court’s entry of the plea and sentencing agreement, it advised Martell of the ramifications of that agreement. The court explained to Martell that by accepting the plea and sentencing deal offered, he was agreeing to receive “the court’s sentence of four years.” In exchange, Martell would “waive your right to appeal and waive any right you might have to a jury trial on the aggravating factors in order to get your sentence of four years.” Martell said he understood.
The court then elaborated that in the “case . . . that we tried, you have the right to jury or court trial on certain sentencing factors that might be used to aggravate or increase your sentence to the upper terms of imprisonment. [¶] . . . In exchange for agreeing to that sentence, you’re getting a misdemeanor plea and charges . . . on the North Court case . . . . [¶] . . . [¶] . . . You also agree – well, you have the right to appeal the decisions and orders of this court. As part of accepting the four-year sentence you’re waiving and giving up your right to appeal any and all orders and decisions made in the case including motions to suppress evidence, if there were any, your right to appeal from your guilty plea in the misdemeanor case, and your right to appeal from the sentence including the aggravated sentence in the case which you went to trial on.” (Italics added.) Martell acknowledged he understood all of that, and then agreed he was accepting the aggravated sentence as part of an “agreement to resolve all these matters in a way that . . . is in [his] best interests.” (Italics added.)
I
The prosecution argues Martell waived his right to pursue this appeal, as part of his plea and sentencing agreement covering both cases. We agree.
As Martell concedes, “a negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles.” (Citing People v. Shelton (2006) 37 Cal.4th 759, 767; People v. Toscano (2004) 124 Cal.App.4th 340, 344.) He notes that any ambiguity must be interpreted “based on an objective standard in which [the defendant’s] ‘reasonable beliefs’ control.” (Citing People v. Toscano, supra, 124 Cal.App.4th at p. 345.)
In this case, the two cases filed against Martell had been filed in different courts, and only the first one had gone to trial. The second case was simply resolved by the plea agreement portion of the combined agreement.
The court that tried the first case is the one that confirmed Martell’s understanding of the plea and sentencing agreement. It expressly informed Martell that in exchange for the negotiated sentence handed down in that case, he would have to “waive your right to appeal and waive any right you might have to a jury trial on the aggravating factors in order to get your sentence of four years.” Martell stated that he understood.
The court then reiterated that although Martell had the right to appeal “the decisions and orders of this court,” his plea agreement meant he was giving up three distinct appellate rights: First, “your right to appeal any and all orders and decisions made in the case”; second, “your right to appeal from your guilty plea in the misdemeanor case”; and third, “your right to appeal from the sentence including the aggravated sentence in the case which [he] went to trial on.” (Italics added.) Again Martell acknowledged that this was his understanding of the agreement.
Martell now argues one aspect of that three-part waiver was ambiguous. Although he agrees he clearly waived his right to appeal both his guilty plea in the second case and his four-year sentence in the case that went to trial, he contends the court’s statement he was also giving up his right to appeal “any and all decisions in the case” was hopelessly vague, since it could have been a reference to either of the two cases. We are not persuaded.
There are three problems with the ambiguity argument. First, it ignores the initial colloquy between the court and Martell, in which the court expressly informed him that it was pronouncing sentence in the case which went to trial, and that as part of the agreement for that sentence, Martell would “waive [his] right to appeal and waive any right [he] might have to a jury trial on the aggravating factors. . . .” That clearly indicated a general waiver of his appellate rights in this case. Martell agreed.
Moreover, given that Martell had expressly waived his right to appeal his plea in the second case, as well as his combined sentence, we cannot see how his additional waiver of the right to appeal “any and all decisions in the case” could have been intended to refer to anything but the decisions made in the case that went to trial. There is simply no indication the second case had progressed to the point where a court or jury had the opportunity to render any “decisions” adverse to Martell.
And finally, even after the tripartite waiver of appellate rights, the court once again made clear that the plea and sentencing agreement was intended to finally dispose of both cases. The court specifically asked Martell to confirm that he was “willing to accept the aggravated sentence as part of agreement to resolve all these matters in a way that you think is in your best interests; is that a fair statement?” Martell responded “[y]es.”
In light of the court’s conscientious effort to ensure Martell understood he was waiving his appellate rights in both cases – and that he understood the scope of those rights – along with its requirement that Martell confirm his understanding the plea and sentencing agreement would “resolve” all the pending matters, we have no trouble concluding that a reasonable person in Martell’s position would have understood he was waiving his right to pursue this appeal as part of that agreement.
II
In any event, we also conclude the substance of Martell’s appeal is without merit. Martell first argued that the evidence adduced at his trial was insufficient to support the conclusion that Monos is a “criminal street gang” as defined in The California Street Terrorism Enforcement and Prevention Act (the “STEP Act”; § 186.20 et seq.)
The STEP Act criminalizes certain acts when committed in connection with a criminal street gang. It also provides for enhanced punishment for any misdemeanor or 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 . . . .” (§ 186.22, subd. (d).)
“[T]he ‘criminal street gang’ component of a gang enhancement requires proof of three essential elements: (1) that there be an ‘ongoing’ association involving three or more participants, having a ‘common name or common identifying sign or symbol’; (2) that the group has as one of its ‘primary activities’ the commission of one or more specified crimes; and (3) that the group’s members either separately or as a group ‘have engaged in a pattern of criminal gang activity.’ [Citation.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1222.)
As explained in People v. Sengpadychith (2001) 26 Cal.4th 316, 323, isolated incidents of criminal activity is not enough to establish that “crime” is a “primary activity” of the gang in question. “Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (Id. at p. 324.)
With that in mind, we turn to the question of whether the prosecution provided sufficient evidence to establish that the Monos gang was a “criminal street gang,” as defined in section 186.22, and more specifically that Martell knew it was. With respect to the former issue, this case is distinguishable from In re Alexander L. (2007) 149 Cal.App.4th 605, 612, relied upon by Martell. In Alexander L., the court noted that the police officer provided no foundation for his conclusions regarding the gang: “We cannot know whether the basis of Lang’s testimony on this point was reliable, because information establishing reliability was never elicited from him at trial. It is impossible to tell whether his claimed knowledge of the gang’s activities might have been based on highly reliable sources, such as court records of convictions, or entirely unreliable hearsay.” (Ibid., fn. omitted.)
A “criminal street gang” is defined under section 186.22 as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in . . . subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).)
In this case, by contrast to the officer in Alexander L., Angle testified to years of experience working specifically on gang violence suppression in the area occupied by the Monos gang. His primary responsibilities with the La Habra Police were to investigate all gang-related crime, with a specific focus on “going out, contacting gang members on the street, investigating crimes as they occur . . . .” During his tenure working on gang violence suppression, Angle had investigated “several hundred gang-related crimes,” and had attended three different week-long national conferences on gang-violence. Moreover, through his work on gang violence suppression in La Habra, and his continual contact with gang members in the area, Angle has become familiar with the Monos gang. That level of personal experience is certainly sufficient foundation to support his testimony regarding the criminal nature of the Monos gang. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [Gang expert’s “eight years dealing with the gang, including investigations and personal conversations with members, and reviews of reports suffices to establish the foundation for his testimony.”].)
With respect to Martell’s personal knowledge of the Monos gang’s criminal nature, his own testimony was sufficient to demonstrate such awareness. Martell admitted knowing that “members of Monos gang commit crimes,” and that some are on probation or parole. He stated he was “sure some of them have” committed violent assaults, and knew that some “do use drugs and they are drug addicts.” He acknowledged knowing that one Monos member was doing a life sentence in prison for murder.
Additionally, Martell’s claim he had severed all ties with Monos once he became a father supports the inference he understood that Monos was not just a benign social group. And that inference is further supported by Martell’s assertion he had only “claimed” Monos membership the year prior to the assault because he was in the company of two younger Monos “associates” at the time the police questioned him, and feared the consequences if he had denied his gang membership. Again, non-criminal social groups do not, as a general rule, punish those members who move on to other pursuits.
Finally, the very circumstances of the crime at issue here provided sufficient evidence that Martell had committed it for the benefit of the Monos gang. As we explained in People v. Martinez, supra 158 Cal.App.4th at p. 1332, evidence that defendant participated in the current crime in conjunction with other gang members is itself sufficient to support the conclusion the crime was intended to benefit the gang: “‘[T]he jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members.’” (Ibid., quoting People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Here, it is the fact that Martell invoked the gang’s name as he committed an assault which provides the basis for the inference. Moreover, the intended “benefit” to the Monos gang in this case is patent; i.e., the protection of Monos’ “turf” from those do not (or no longer) support the gang.
Our record does not clearly demonstrate whether any of the other young men with Martell at the time of the assault – all of whom scattered when the police were spotted – were affiliated with Monos.
Martell’s final argument is that the evidence was insufficient to demonstrate he was an “active participant” in the Monos gang. Again, we disagree.
The evidence is sufficient to demonstrate Martell was a current “active” member of the Monos gang, because he had admitted his membership to police within the year, and had a tattoo of the gang’s name on his stomach. Moreover, the details of the assault at issue in this case were certainly sufficient to support the conclusion his participation in the gang was more than “nominal or passive” under People v. Castaneda (2000) 23 Cal.4th 743.
It is undisputed that Martell did not even know Gonzalez, the young man he was convicted of assaulting. Indeed, the Monos gang is the only link between them – Gonzalez had been warned away from Grace Street by members of that gang, and when Martell saw him there in defiance of the gang’s edict, he shouted the gang’s name while assaulting Gonzalez with a tire iron. These circumstances clearly suggest that Martell was engaged in Monos’ business – and thus that he was actively participating in the gang – when he committed the assault.
The judgment is affirmed.
WE CONCUR: O’LEARY, J. MOORE, J.