Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 05CF3255, William Lee Evans, 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, Assistant Attorney General, Lynne McGinnis and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
The court did not err when it denied a motion to bifurcate or when it sentenced defendant. Substantial evidence supports the jury’s findings. We affirm.
I
FACTS
A jury found defendant John Paul Mendoza guilty of carjacking in violation of Penal Code section 215, subdivision (a) as charged in count one. (All statutory references are to the Penal Code.) The jury found one of the enhancements charged on count one to be true and one not to be true. It found to be true that count one was committed for the benefit of a criminal street gang in violation of section 186.22, subdivision (b)(1), and found it not to be true that he was personally armed with a firearm within the meaning of section 12022, subdivision (a)(1). Defendant was also found guilty of street terrorism in violation of section 186.22, subdivision (a) as charged in count two. The court sentenced defendant to 24 years four months in prison.
Defendant moved to bifurcate count two, the charge under section 186.22, subdivision (a), as well as the enhancement to count one, under section 186.22, subdivision (b)(1), from the remaining counts. Defense counsel said: “[F]irst and foremost... the gang allegation attached to the 215 charge is what makes punishment on this case life imprisonment.” Counsel elaborated that the incident did not take place in the gang’s territory, there would be no evidence of “any gang names or [that] gang signs were thrown” during the incident, the victim is not a gang member and the fight “had nothing to do with any gang-related offense.” The prosecutor said, “The gang evidence is intrinsically related to the other evidence pertaining to the carjacking in this case, and it’s relevant towards the issues of motive, knowledge, and intent. It’s also relevant to the victim’s state of mind.” The court denied the motion.
Rene Sanchez testified that on October 5, 2005, he had a friend named Evelyn in his car and intended to drop her off near her home. At some point, Sanchez saw that Angie Mendoza was possibly following him. Sanchez said that in the past Angie Mendoza was upset with him over an incident involving her former boyfriend.
When Evelyn got out of the car, she got right back inside. According to Sanchez: “When Angie saw a female getting out of my car she just pulls over and got out of her car and kind of wanted to fight her.” Sanchez drove around with Evelyn in his car while Angie Mendoza followed him in her car. At one point, Sanchez thought Angie Mendoza would crash her car into the back of his. At some point, Sanchez was able to “lose her” and he took Evelyn to her home.
Sanchez drove to the home of another friend and pulled into his driveway. When the friend did not answer his knocks on the door, Sanchez returned to his car and “[r]ight when I open the door to get in, Angie’s car pulled up behind me” and blocked the driveway. Defendant, Angie Mendoza’s cousin, got out of the passenger side of the car driven by Angie Mendoza and started “throwing punches” at Sanchez. Sanchez saw defendant reach toward his waistband; it appeared defendant had a gun. Sanchez feared defendant; he knew he was a member of the Goldenwest gang. Sanchez “took off running towards the park and then [he] came back after running to the park and [his] car wasn’t there no more.” He heard defendant say “I am going to take your car.”
Garden Grove police found the car on October 6 with its steering column “busted” and radio gone. Defendant “could not be eliminated as a possible contributor to the gear shift swab” taken by the police.
Detective Ronald Castillo testified as a gang expert. When Castillo was hired in 1984, Goldenwest gang was “already a well-established gang in our city.” Goldenwest has a “historical area,” but Castillo has noticed graffiti indicating the gang is expanding.
Castillo said the primary activities of Goldenwest are possession of methamphetamine for sale, for which Castillo said there are three documented cases. Another primary activity of the gang is assault with a deadly weapon, for which there are four documented cases.
Zenaido Valadez is a member of Goldenwest who admitted to being an active participant of the gang when he was convicted of possession of a controlled substance for sale, street terrorism and possession of a firearm on the grounds of a school. Daniel Quihuiz is also a member of Goldenwest who “assaulted a subject who was waiting for his wife outside of a clothing store and was assaulted. And after the assault Goldenwest was yelled out and in those court documents he did admit to being an active participant of the Goldenwest gang.”
With regard to defendant, Castillo said he wasn’t “jumped in” the gang because his cousin, George Mendoza, was a gang member. Castillo reviewed 10 “step notices or gang notices that were issued to Mr. Mendoza.” Defendant indicated to the police his moniker is “Ghost” but it used to be “Johnny” or “Johnny Boy.”
Castillo reviewed three reports about defendant from the Santa Ana Police Department: “The first one dated April 8th, year 2000. It was during a domestic violence investigation. The mother of Mr. Mendoza’s child identified him as being from the Goldenwest gang. The second dated October 7, 2001. During an assault investigation the victim identified him as being from the Goldenwest gang. And the last one dated November 25, 2001. It was during a graffiti and assault with a deadly weapon investigation. Mr. Mendoza was observed writing Goldenwest graffiti and a moniker of Ghost on a business wall. When he was confronted by an employee from the business he pointed a handgun at the individual.” Defendant has three Goldenwest tattoos. Castillo testified defendant was an active member of Goldenwest on October 5, 2005.
As to Angie Mendoza, Castillo said: “I noticed or I located four documents that connect his cousin to street gang connections. The first one was dated April 24th the year 2004. She was issued a gang notice.” Castillo said a probation search of her home was conducted “as a result of this case.” Correspondence with gang members from another gang was found. Also found was Goldenwest graffiti.
The prosecutor posed a hypothetical question to Castillo which included the facts involved in this crime, and ended by asking whether the hypothetical crime “was committed for the benefit, at the direction of, or in association with a criminal street gang?” Castillo’s opinion was that the hypothetical crime was committed under those circumstances. He provided the basis for his opinion: “Well, you have a Goldenwest street gang member who confronts the victim, at some point pulls out a firearm, handgun. The victim runs away. The victim knows that the person is from the Goldenwest gang. The victim is now aware that members of this gang are willing to commit such violent acts as pulling a gun out, then taking the car. [¶] By committing this act the Goldenwest gang member is enhancing the reputation of its gang by letting people know that its members are willing to commit such violent acts with a firearm.” Castillo expanded his explanation for his opinion: “You have the member committing these acts that we have just spoke of. By committing these acts it enhances the reputation of the gang member. Again going back to respect issue, the more crimes that you commit, the more your reputation or respect is enhanced. It rises within the gang. There is a whole — reflects what members of the particular gang will do and enhance the reputation of the gang.”
The prosecutor asked if Castillo would change his opinion if he knew the victim did not actually see a gun, but only a furtive movement in the waistband. Castillo said such a circumstance would not change his opinion.
II
DISCUSSION
Bifurcation of Trial
Defendant contends the trial court abused its discretion when it denied his motion to bifurcate the street terrorism count and gang enhancement from the carjacking charge. He argues his right to due process was violated and resulted in “a grossly unfair trial on the carjacking charge.”
A trial court’s denial of a bifurcation motion is reviewed for abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) “An abuse of discretion may be found when the trial court’s ruling ‘“falls outside the bounds of reason.”’ [Citation.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1315.)
“In cases not involving the gang enhancement, we have held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.] (People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) “[T]he trial court’s discretion to deny bifurcation of a charged gang enhancement is similarly broader than its discretion to admit gang evidence when the gang enhancement is not charged.”(Id. at p. 1050.)
Regarding the substantive charge of street terrorism, as a technical matter defendant should have moved to sever that count instead of asking that it be bifurcated. (People v. Burnell (2005) 132 Cal.App.4th 938, 947.) He raised no issues of severance in the trial court and raises none here. But even if he had filed a motion to sever, the result would likely have been the same. We note that the “‘[t]rial of the counts together ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials.’ [Citation.]” (People v. Hernandez, supra, 33 Cal.4th at p. 1050.)
Castillo said defendant’s actions enhanced the reputation of the gang, and that gang members desire to gain respect for their gang. Defendant’s cousin had a previous problem with the victim, and Castillo said “an active participant in a criminal street gang would retaliate against someone who he felt disrespected a family member.” The victim knew defendant was a Goldenwest member and feared him; when the victim realized he was in the car with Angie Mendoza, he ran. The totality of the circumstances of this case make it clear the gang evidence placed the carjacking in context. We cannot conclude the trial court abused its discretion when it denied defendant’s motion to bifurcate.
Under the circumstances of this record, defendant was not prejudiced by the introduction of gang evidence. Sanchez identified defendant. There was DNA evidence against defendant. The jury did not appear to be swayed against defendant in that it returned a not true finding on one of the enhancements. The court gave extensive limiting instructions, a general instruction regarding gang evidence plus an additional instruction before the gang expert rendered his opinions. It is not reasonably probable the outcome would have been different if the motion had been granted. (People v. Watson (1956) 46 Cal.2d 818, 836 .)
“You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related (crime/and enhancement) charged[.] [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that (he) has a disposition to commit crime.”
“By and large this is going to be background information, may contain some information about Mr. Mendoza’s prior contacts with law enforcement. [¶] The important thing here again is the caution, you’re not to take this and then come to the conclusion, well, Mr. Mendoza is a person of bad character, therefore he must have committed that offense. That is wrong. You can’t use it for that. It’s limited in its application here so that you can understand opinions that are given by this officer. You know the grounds upon which his opinions are based. You get the facts so you can judge the quality and the weight to which to give his opinion. But do not use these things for anything other than the limited purpose of assisting you in understanding an opinion about whether or not Mr. Mendoza is an active gang member of a criminal street gang or any other parts of the opinion the officer renders here.”
Defendant has shown no error. He has shown no prejudice. We cannot conclude his trial was fundamentally unfair as a result of the admission of gang evidence. (People v. Partida (2005) 37 Cal.4th 428, 436, 439.)
Substantial Evidence
Defendant next contends the gang enhancement must be reversed because there was not sufficient evidence that the carjacking was for the benefit of the gang. He argues the circumstances of the offense are that the crime was not gang related in that they concerned a dispute between the victim and defendant’s cousin Angie Mendoza. The Attorney General notes the court struck the enhancement under section 186.22, subdivision (b)(1) for sentencing purposes.
In addressing challenges to the sufficiency of the evidence, “the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
“The minor appeals, claiming sufficient evidence does not exist to support the court’s finding true the special allegation that appellant possessed the dirk or dagger for the benefit of his gang with the specific intent to promote, further, or assist criminal gang behavior. We agree and reverse the special allegation. We publish this case to emphasize that crimes may not be found to be gang-related based solely upon a perpetrator’s criminal history and gang affiliations.” (In re Frank S. (2006) 141 Cal.App.4th 1192, 1194-1195.) “The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor’s statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor’s specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.” (Id. at p. 1199.) A jury may rely upon expert testimony about gang culture and habits to reach a true finding of a gang enhancement. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
Here there was evidence the carjacking was committed with a gang member’s cousin who had the gang’s graffiti in her home and was affiliated with the Goldenwest gang. The gang expert testified gang members do not tolerate disrespect to family members. The expert also described where Goldenwest territory extended. This incident occurred just adjacent to Goldenwest gang territory. The gang expert testified gang members are motivated to commit crimes in order to enhance respect for their gang. The victim was aware defendant was a member of Goldenwest, and that Goldenwest members committed violent crimes. From the totality of these circumstances, we conclude there is sufficient evidence in this record to support the jury’s determination the carjacking was committed for the benefit of the Goldenwest gang.
Sentence on Street Terrorism Conviction
Defendant next argues his sentence on the street terrorism conviction should have been stayed under section 654. He reasons that both the carjacking and street terrorism offenses were committed by the same act, the taking of Sanchez’s car, and with the same intent and objective, to avenge his cousin Angie by retaliating against Sanchez, so multiple sentences were prohibited by the provisions of section 654. He was sentenced to 18 years in prison for carjacking and a consecutive 16-month term for street terrorism.
Section 654 requires that an act or omission that is made punishable in different ways by different provisions of the Penal Code may be punished under either of such provisions, “but in no case shall [it] be punished under more than one....” This provision bars multiple punishment when a defendant is convicted of two or more offenses that are incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11; People v. Latimer (1993) 5 Cal.4th 1203 [reaffirming Neal].) “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California, supra, 55 Cal.2d at p. 19, italics added.)
“[Penal Code] section 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime may thus possess ‘two independent, even if simultaneous, objectives[,]’ thereby precluding application of section 654. [Citation.]” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1468, fn. omitted.) “Section 186.22, subdivision (a) punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself. Hence, under section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminal street gang. However, he does not need to have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendant’s objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense. For example, this subdivision would allow convictions against both the person who pulls the trigger in a drive-by murder and the gang member who later conceals the weapon, even though the latter member never had the specific intent to kill. Hence, section 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime may thus possess ‘two independent, even if simultaneous, objectives[,]’ thereby precluding application of section 654. [Citation.]” (Id. at pp. 1467-1468, fns omitted.)
Defendant relies on People v. Vu (2006) 143 Cal.App.4th 1009. “[V]u committed different acts, violating more than one statute, but the acts of conspiracy and street terrorism constituted a criminal course of conduct with a single intent and objective. That single criminal intent or objective was to avenge Ly’s killing by conspiring to commit murder. Although that intent or objective could be parsed further into intent to promote the gang and intent to kill, those intents were not independent. Each intent was dependent on, and incident to, the other.” (Id. at p. 1034.)
The case before us is factually dissimilar to Vu. Here, carjacking and promoting the interests of the Goldenwest gang were not so intertwined as the acts of conspiracy and street terrorism in Vu. Before defendant took the victim’s car, he approached him, without saying a word, and tried to punch him. As the victim ran away, defendant called after him that he was going to take his car. If defendant’s only intent was carjacking, the attempted punches or call were not necessary; if defendant’s only intent was street terrorism, the carjacking was not necessary. The record demonstrates sufficient evidence for a trier of fact to reasonably conclude there were two separate intents. The court did not err in not applying section 654.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.