Opinion
C081307
04-11-2017
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL MEDINA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SF125444C)
A jury found defendant Rafael Medina guilty of attempted voluntary manslaughter, robbery, and active participation in a criminal street gang. The jury also found true the allegations defendant committed the attempted voluntary manslaughter and robbery offenses for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, and defendant personally used a firearm in the commission of the crimes. The trial court sentenced defendant to an aggregate term of 25 years in prison.
On appeal, defendant contends: (1) there is insufficient evidence to support the true findings on the gang-enhancement allegations and his gang participation conviction; and (2) the trial court erred in failing to stay the sentence on the attempted voluntary manslaughter conviction pursuant to Penal Code section 654. We find no merit in defendant's challenge to the sufficiency of the evidence but agree the trial court erred in failing to stay execution of defendant's sentence for attempted voluntary manslaughter and will modify the judgment accordingly. As modified, we affirm.
Undesignated section references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2013, Ali Naveed worked at Tokay Food & Liquors in Lodi. He testified as follows: Around 9:30 p.m. on September 1, 2013, three men entered the store with a gun and demanded "all the money" from the cash register. The man with the gun, later identified as defendant, was wearing a striped shirt and had a blue bandana covering his face. He pointed the gun at Naveed and told him to open the cash register. Meanwhile, one of the other men grabbed a baseball bat that was near the cash register and told Naveed to "hurry up." Defendant also told Naveed to "hurry up" and then moved the slide on his gun in a way that made Naveed think he loaded it. After Naveed opened the cash register, defendant took some of the money. He then threw bottles of liquor on the ground. Collectively, the three men took various items from the store, including the baseball bat, around $200, "blunt raps," and several bottles of liquor.
The two men who robbed the liquor store with defendant, Luis Gauna and Mario Contreras, testified for the prosecution. Gauna testified that defendant was a friend he knew through gangs. He said he was not a gang member but noted that he grew up and hung out with Sureño gang members in east Lodi, including Hale Park. He explained Hale Park is a "blue park," meaning it is a park where Sureño gang members hang out. He further explained Sureño gang members wear blue because blue is the color they represent. He also noted that he knew Contreras was a gang member.
With respect to the robbery, Gauna testified he was hanging out and doing drugs with defendant and Contreras when defendant proposed they rob a store. Upon their arrival at Tokay Food & Liquors, defendant pulled out a gun, shoved Naveed to the back of the store, and told Naveed, "Open the register or I'm going to kill you." As Naveed was attempting to open the cash register, defendant shoved the gun in his face and pulled the trigger but the gun did not fire; it just made a clicking noise. When Naveed opened the cash register, defendant and Contreras took the money. Defendant also grabbed several bottles of liquor before leaving the store. According to Gauna, defendant later complained his gun had misfired.
Contreras testified he knew defendant from the streets of east Lodi, including Hale Park. He explained east Lodi is the territory of the Sureños, and the number 13 and the color blue are important to the Sureños. He further explained Hale Park is considered to be the headquarters of the Sureños. He testified he was jumped into a Sureño gang when he was 14 years old and has a gang tattoo representing the number 13, consisting of one dot on one elbow and three dots on the other elbow. He also noted that Sureño gang members get respect by committing crimes.
Regarding the robbery, Contreras testified he was with Gauna and defendant at Hale Park when defendant came up with the idea of robbing Tokay Food & Liquors. While he saw defendant point a gun at Naveed, he did not see or hear defendant pull the trigger. After Naveed opened the cash register, defendant took some of the money and grabbed several bottles of liquor before leaving the store.
After the robbery, Contreras jumped defendant into his gang, a subset of the Sureños known as the Poor Side Locos. According to Contreras, defendant proved himself worthy of joining the gang by committing the robbery while wearing the color of the Sureños. He explained defendant wearing blue during the robbery was significant because it let everyone know the robbery was committed by Sureños. He also said the robbery was committed to benefit the gang.
Larry Fluty, a former detective with the Lodi Police Department's gang unit and one of the investigating officers in the case, testified for the prosecution as an expert on gangs. His expertise consists of Sureño and Norteño gangs within the city limits of Lodi. Fluty explained the Lodi Police Department has a list of 10 criteria to determine whether a person is a gang member. The criteria includes, among other things, that the person: admits gang membership, has gang-related tattoos, has been identified as a gang member by an uncontested informant, frequents gang areas, wears gang attire, hangs out with documented gang members, and commits crimes with other gang members consistent with gang activity. To be considered a gang member, a person must meet two of the criteria.
Fluty testified Sureños wear the color blue, associate themselves with the number 13, claim the east side of Lodi, and usually hang out and live near Hale Park, which is considered to be a Sureño "stronghold." He further testified the Norteños are a rival street gang that also claim territory in Lodi. According to Fluty, the primary activities of the Sureños include, among other things, attempted murder, robbery, assault with a deadly weapon, assault with great bodily injury, and possession of a loaded firearm. He explained a primary objective of the Sureños is making money and robbery is one of the ways to achieve that objective. He also explained Sureños typically do not rob or burglarize businesses in their territory and noted that Tokay Food & Liquors is located in Norteño territory. He testified a Sureño committing a crime in Norteño territory is a sign of disrespect. He further testified that respect is important to the Sureños because they need respect to operate, and Sureños gain respect by committing crimes; the more violent the crime, the more respect the gang receives.
Fluty explained the number 13 represents the 13th letter of the alphabet, "M," which stands for the Mexican Mafia. He further explained the Mexican Mafia is a prison gang while the Sureños are a street gang which act as the foot soldiers for the Mexican Mafia. --------
After the prosecution solicited testimony from Fluty and presented documentary evidence of numerous predicate offenses involving Sureño gang members in Lodi, Fluty testified in his opinion defendant was an active participant in a criminal street gang during the robbery based on the facts of the case and his conduct while incarcerated following the robbery. He explained defendant had worn a blue bandana during the robbery and had committed the robbery with a validated Sureño gang member (Contreras) in Norteño territory. He also explained defendant had obtained tattoos following his arrest that were gang-related, including, three dots near his left eye and the letters "B" and "P" on his fingers. Fluty opined the letters stood for Barrio Pobre, a common gang tattoo of the subset of Sureños known as the Poor Side Locos. Fluty also noted that drawings were found in defendant's cell depicting the number 13 and the letters "E" and "S" and "N" and "K." Fluty testified the letters stood for East Side Lodi and Norteño Killer. According to Fluty, assuming defendant was jumped into the Sureño gang on the night of the robbery, this fact would support the conclusion defendant was an active participant in a criminal street gang during the commission of the robbery.
Fluty also testified that in his opinion the crimes in this case were gang-related. According to Fluty, assuming defendant was the person carrying the gun and wearing the blue bandana, defendant had committed the crimes for the benefit of and in association with the Sureño criminal street gang because the crimes were committed in association with a validated Sureño gang member (Contreras), and defendant associated himself with the gang by wearing the color blue. Fluty was of the opinion the crimes benefitted the gang because violent crimes committed by gang members instill fear in the community, and when people in the community are fearful of gang members, they are less likely to report gang-related activity. He also testified that when, as here, a gang member uses a gun to commit a crime, it elevates the gang's reputation in the community.
A jury found defendant guilty of attempted voluntary manslaughter, robbery, and active participation in a criminal street gang. The jury also found true the allegations defendant committed the attempted voluntary manslaughter and robbery offenses for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, and defendant personally used a firearm in the commission of the crimes. The trial court sentenced defendant to an aggregate term of 25 years in prison. In doing so, the trial court determined that a stay of the attempted voluntary manslaughter conviction would be appropriate. The trial court reasoned as follows: "[T]he court finds [the attempted voluntary manslaughter] count to be a continuing course of conduct within the robbery itself. The attempted voluntary manslaughter was based on an act of the defendant possibly pulling the trigger on the gun, but the gun jammed, and this was because the clerk was taking too long to open the register that he apparently pulled the trigger. This act occurred within the robbery itself. The defendant had the same intent and objective, which was to facilitate a robbery. In fact the robbery had not been completed yet and the Court will not be separating this out from the force and fear used to commit the robbery." The trial court sentenced defendant to a 13-year term for attempted voluntary manslaughter, to run concurrent to the sentence imposed on the robbery conviction, but despite its finding that a stay on the attempted voluntary manslaughter sentence would be appropriate, the trial court failed to impose any such stay.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Sufficiency Of The Evidence
Defendant contends there was insufficient evidence to support the true findings on the gang enhancement allegations and his gang participation conviction. We disagree.
In considering a claim challenging the sufficiency of the evidence in a criminal case, " ' "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) We apply the same standard in considering a challenge to the sufficiency of the evidence to support an enhancement. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.) "We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (Id. at p. 60.)
In challenging the sufficiency of the evidence that he "committed the offenses with the necessary gang-related specific intent [and] that he was an active participant" in a gang, defendant argues that the evidence was insufficient because "no evidence but the gang expert's testimony supported the [challenged] finding[s]," and the "evidentiary value of [the expert's] opinions" was "substantially decrease[d]" because in forming his opinions, the expert "relied on interviews with other people and reports written by others." According to defendant, because he "never had the opportunity to confront and question the individuals who gave this testimonial hearsay information to the officer," "his Sixth Amendment rights to confrontation [citations], to present a defense, and his right to counsel and due process under the Fourteenth Amendment were violated."
For their part, the People contend (among other things) that defendant forfeited the foregoing argument because he did not object to the expert's testimony about which he now complains on hearsay or confrontation grounds at trial. In reply, defendant does not deny his lack of an objection. Instead, he asserts that he did not forfeit his argument because " '[c]onstitutional issues may be reviewed on appeal even where the defendant did not raise them below.' "
The People are correct that "[i]t is 'the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.' " (People v. Raley (1992) 2 Cal.4th 870, 892, quoting People v. Rogers (1978) 21 Cal.3d 542, 548.) This rule of forfeiture applies equally to constitutional claims. (E.g., People v. Redd (2010) 48 Cal.4th 691, 730, fn. 19.) The opinion defendant cites -- People v. Barber (2002) 102 Cal.App.4th 145 -- does not hold otherwise. Barber merely noted that some constitutional issues "may be reviewed on appeal even where the defendant did not raise them below." (Id. at p. 150, italics added.) From Barber, this rule can be traced back to People v. Norwood (1972) 26 Cal.App.3d 148, where the court stated both that "[a]n appellate court may note errors not raised by the parties if justice requires it" and that "[a] matter normally not reviewable upon direct appeal, but which is shown by the appeal record to be vulnerable to habeas corpus proceedings based upon constitutional grounds may be considered upon direct appeal." (Id. at pp. 152, 153.) At best, however, Norwood does no more than identify two circumstances in which an appellate court can exercise its discretion to address issues -- constitutional or otherwise -- that were not properly preserved for review in the trial court. In other words, even though an argument was forfeited by the failure to raise it in the trial court, an appellate court can, in appropriate circumstances, reach that issue notwithstanding the forfeiture. The problem here is that defendant offers us no reason why we should exercise our discretion in his favor to reach the constitutional arguments he did not raise in the trial court. Accordingly, we decline to do so.
Because defendant did not timely and specifically object to the gang expert's testimony in the trial court on the grounds he now advances here, he cannot be heard to complain that the "evidentiary value of [the expert's] opinions" was "substantially decrease[d]" by the constitutional flaws he now asserts. Thus, those alleged flaws are immaterial to his challenge to the sufficiency of the evidence.
Defendant's remaining arguments regarding the sufficiency of the evidence may be shortly dispatched. He first argues about what evidence was not presented -- for example, he asserts there was no evidence anyone "shouted any gang slogans [during the robbery] or stated that the offense was being committed by any gang." But the issue for us to decide is not what evidence was missing, but whether the evidence that was presented was sufficient to support the jury's findings. To make a proper argument that it was not, defendant was obliged to "set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People, and then . . . persuade us that evidence cannot reasonably support the jury's verdict." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574.) Defendant did not do that; thus, he has failed to carry his burden of showing the evidence was insufficient. (See ibid.)
Next, to the extent defendant contends the evidence was insufficient because the testimony of Contreras and Gauna "regarding the incident and the gang [wa]s inherently unreliable" due to their "status as convicted robbers and their incentive to testify in support of the prosecution's theory of the case," defendant is asking us to weigh the credibility of their testimony, which is something we cannot do. "While the jury may disregard the testimony of an accomplice or a witness who has been impeached, they are not necessarily required to do so, unless it is wholly disbelieved. The witness is nevertheless competent and his evidence is entitled to such weight as the jury believes it should be accorded. (People v. Ross (1941) 46 Cal.App.2d 385, 397-398.) "A reviewing court cannot substitute its evaluation of a witness's credibility for that of the fact finder." (People v. Garcia (1993) 17 Cal.App.4th 1169, 1183.) Thus, this aspect of defendant's sufficiency argument lacks merit as well.
II
Section 654Finally, defendant contends the trial court erred in failing to stay the sentence for the attempted manslaughter offense under section 654. The People agree, and so do we.
Section 654, subdivision (a) provides as follows: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 is intended to insure that a defendant's punishment will be commensurate with his culpability. (People v. Perez (1979) 23 Cal.3d 545, 552.) The statute bars multiple punishment for both a single act that violates more than one criminal statute and multiple acts, where those acts comprise an indivisible course of conduct incident to a single criminal objective and intent. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on another ground in People v. Correa (2012) 54 Cal.4th 331, 334.) Conversely, where a defendant commits multiple criminal offenses during a single course of conduct, he or she may be separately punished for each offense he or she committed pursuant to a separate intent and objective. (People v. Beamon (1973) 8 Cal.3d 625, 637-639, disapproved on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 924, fn. 14.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the actor. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. (People v. Latimer, supra, 5 Cal.4th at p. 1208.) The defendant's intent and objective are factual questions for the trial court, and we uphold the trial court's finding, whether express or implied, if there is sufficient evidence to support it. (People v. Vang (2010) 184 Cal.App.4th 912, 915-916.)
Here, the trial court expressly found that defendant "had the same intent and objective" in committing the attempted voluntary manslaughter as he did in committing the robbery. The People do not challenge that finding, and given the deference required by the applicable standard of review -- which is for substantial evidence to support the trial court's finding -- we have no basis for overturning that finding. Given the finding of a single criminal objective and intent, it was error for the trial court not to stay the sentence on the attempted voluntary manslaughter conviction. (People v. Alford (2010) 180 Cal.App.4th 1463, 1467-1473.) Accordingly, we will modify the judgment to stay execution of that sentence.
DISPOSITION
The judgment is modified to stay execution of the 13-year sentence for attempted voluntary manslaughter pursuant to Penal Code section 654. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Murray, J.