Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No., TA098987 Paul A. Bacigalupo, Judge. Affirmed as modified with directions.
Diana M. Teran, under appointment by the Court of Appeal, for Defendant and Appellant Bobby Nash.
Janet I. Gray, under appointment by the Court of Appeal, for Defendant and Appellant Sylvester James Jones.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendants Bobby Nash (Nash) and Sylvester James Jones (Jones) appeal from judgments of conviction entered after a jury trial. The jury convicted both defendants of one count of carjacking (Pen. Code, § 215, subd. (a))and found true the allegations defendants committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)). The jury found not true the allegation as to Nash that he personally used a firearm (§ 12022.53, subd. (b)) and the allegations as to both defendants that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)) in the commission of the crime. The trial court sentenced both defendants to terms of 15 years to life in prison.
All further statutory references are to the Penal Code.
On appeal, both defendants contend that the evidence was insufficient to support the gang enhancement. Defendant Jones contends that the trial court violated his rights by admitting defendant Nash’s redacted statement into evidence. Defendant Nash contends that the imposition of a 15-years-to-life sentence for carjacking with a gang enhancement upon a juvenile is cruel and unusual punishment. He also contends that the trial court erred in imposing the 15-years-to-life sentence on the gang enhancement and not the underlying carjacking charge. We agree as to this last contention and modify the judgment to reflect that the sentences were imposed on the carjacking charge. We find no grounds for reversal and affirm the judgment as modified.
FACTS
Prosecution
On April 25, 2008, Francisco Sanchez (Sanchez) drove his Honda Civic to a gas station in Los Angeles. He was with his friend, Michael. Sanchez saw Nash and Jones standing near the pumps. Sanchez left his car to pay for the gas, leaving his keys in the ignition. When he walked back to his car, Jones approached him. Sanchez recognized Jones as a man who had dated one of his cousins several years earlier.
Jones demanded Sanchez’s car, and Sanchez told Jones to get away from his car. Nash got into the driver’s side of the vehicle, and Michael got out on the passenger’s side. Sanchez tried to get in the driver’s door, but it was locked. Jones got into the passenger’s side. Sanchez saw Nash pointing what he thought was a semiautomatic handgun. Sanchez threw himself onto the windshield of the car, but Jones drove away. Sanchez fell off shortly thereafter.
Sanchez reported the incident to the police. He later identified defendants from photographic lineups and also at trial. Sanchez’s car was recovered on April 29, 2008, from a parking lot on Sepulveda Boulevard. A baseball hat similar to the one worn by the suspect in the gas station security videotape was recovered from Jones’s room.
Los Angeles Police Department Officer Ryan Moreno interviewed Nash upon his arrest. After Moreno showed Nash the security videotape, Nash said, “I’m f-----, cuz.” Nash explained that the carjacking “wasn’t my choice, ” and that “homies” had put “a lot of peer pressure” and “a lot of fear” on him to commit the crime. Nash told Officer Moreno that he could not refuse to commit the carjacking because “it wouldn’t look right if I said no.” He explained the message he got from the “homies” was, “You could get a little pass if you do this. If you don’t do it, there is going to be hell. Straight up.”
Gang Evidence
Los Angeles Police Officer Jason Archie testified as a gang expert. Officer Archie explained that “Grape Street Crips” was a criminal street gang with a total membership of about 2, 000. The gang color was purple. The 11 Deuce Broadway Gangster Crips was another Crips gang that had about 150 to 200 members. For both gangs, the East Coast Crips was a common enemy. He also testified as to the common offenses of the gangs and gang members who had been convicted of predicate offenses for purposes of proving the gang enhancement allegations.
Officer Archie knew Nash to be a member of Grape Street Crips who had admitted his gang membership to law enforcement, wore Grape Street paraphernalia, and had Grape Street gang tattoos. Officer Archie testified that Jones was an active member of the 11 Deuce Broadway Gangster Crips, had several police contacts in which he admitted his gang membership and had tattoos reflecting his affiliation with that gang.
Based on a hypothetical identical to that of the instant case, Officer Archie opined that the carjacking was committed for the benefit of the perpetrators’ gangs. The gas station where the carjacking occurred is “right in the middle of” territory claimed by the 11 Deuce Broadway Gangster Crips. Grape Street Crips members commit crimes with 11 Deuce Broadway Crips members “all the time.” The crime would benefit the gang members and their gangs in several ways: The crime would provide income for each gang member or his respective gang. The crime would also enhance the reputation of each gang member and the reputation of each gang. When Nash told police that he had committed the crime because of peer pressure, it showed that the crime was committed at the direction of the gang. It was also significant that the crime was committed in the open in 11 Deuce territory.
Defense-Nash
Los Angeles Police Officer Billy Lee took a report from Sanchez shortly after the carjacking. He wrote that Sanchez reported that the suspect outside of the car, and not the suspect in the car, had pointed a semiautomatic handgun at his chest. Officer Lee testified that he wrote the report after Sanchez left and did not go over the contents before having Sanchez sign it.
Public defender investigator Maria Rodriguez interviewed Sanchez about three months after the incident. Sanchez said that when he returned to his car to pump gas, someone came up behind him and said something like, “Give me your car.” Sanchez argued with that person and not the person in the driver’s seat, who he knew as “James.” When the police showed him photographs, he immediately recognized “James” but could not identify the other man.
Defense-Jones
Kimberly Jeter (Jeter) is Jones’s mother. She had moved her family, including Jones, out of the area where the crime occurred in February of 2005. She knew Sanchez as a friend of her son’s, who sometimes played basketball in her backyard. Sanchez and Jones spoke about a month before the incident.
DISCUSSION
A. Sufficiency of the Evidence
In reviewing the sufficiency of the evidence, the question on appeal is whether there is evidence from which a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) “In making this determination, we ‘“must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Rayford (1994) 9 Cal.4th 1, 23; accord, People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) We also examine the entire record, not merely “‘“isolated bits of evidence.”’” (Cuevas, supra, at p. 261.)
Substantial evidence is that which is reasonable, credible and of solid value. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) Although all reasonable inferences must be drawn in support of the judgment, the court “may not ‘go beyond inference and into the realm of speculation in order to find support for a judgment. A finding... which is merely the product of conjecture and surmise may not be affirmed.’” (People v. Memro (1985) 38 Cal.3d 658, 695, overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2; accord, People v. Waidla (2000) 22 Cal.4th 690, 735.)
Section 186.22, subdivision (b)(4), provides that “[a]ny person who is convicted of a felony enumerated in this paragraph 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, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of several listed alternatives.”
The California Supreme Court has clarified that the gang enhancement “does not criminalize mere gang membership; rather, it imposes increased criminal penalties only when the criminal conduct is felonious and committed not only ‘for the benefit of, at the direction of, or in association with’ a... ‘criminal street gang, ’ but also with the ‘specific intent to promote, further, or assist in any criminal conduct by gang members.’” (People v. Gardeley (1996) 14 Cal.4th 605, 623-624.) Therefore, “the record must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.” (People v. Martinez (2004) 116 Cal.App.4th 753, 762, italics omitted.)
In this case, the People offered extensive evidence that Nash and Jones were gang members. Nash admitted his gang membership to the police. Nash also wore Grape Street paraphernalia upon arrest, including a rabbit’s foot dyed purple, and had Grape Street gang tattoos. Officer Archie testified that Jones was a member of the 11 Deuce Broadway Gangster Crips. Jones had several police contacts in which he admitted his gang membership. Jones also had “huge” tattoos reflecting his affiliation with the 11 Deuce Broadway Gangster Crips.
Officer Archie testified that the Grape Street Crips and 11 Deuce Broadway Gangster Crips members frequently act together in committing crimes and the two gangs share a common enemy gang. According to the security video, Nash and Jones worked together during the crime.
Officer Archie also explained that the crime benefitted both the perpetrators and their respective gangs. The car they took was an asset that could be used to benefit gang members and their gang. The crime allowed the defendants to gain status in their gangs by “putting in work, ” which strengthened the status of each gang. The crime was committed right in the middle of 11 Deuce territory, which communicated to everyone who lived in that area that when crimes were committed in “11 Deuce ’hood, it’s a 11 Deuce gangster who committed [the] crime, [so] don’t call the police.”
“It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a... finding on a gang allegation.” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) “‘Generally, an expert may render opinion testimony on the basis of facts given “in a hypothetical question that asks the expert to assume their truth.” [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence, however. [Citation.]’” (People v. Ward (2005) 36 Cal.4th 186, 209.) However, “[a] gang expert’s testimony alone is insufficient to find an offense gang related.” (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.) Rather, the expert testimony must be accompanied by “some substantive factual evidentiary basis” (id. at p. 661) from which “the jury could reasonably infer the crime was gang related.” (Ferraez, supra, at p. 931; see also Ochoa, supra, at p. 660 [“something more than an expert witness’s unsubstantiated opinion that a crime was committed for the benefit of, at the direction of, or in association with any criminal street gang is required to justify a true finding on a gang enhancement”].)
In People v. Olguin (1994) 31 Cal.App.4th 1355, 1384-1385, expert testimony of a police officer, who investigated the murder and had experience with gangs, that the murder benefitted the gang because it promoted the respect of that gang was sufficient to establish that murder was committed for the benefit of the gang, for purposes of the criminal street gang enhancement.
The Courts of Appeal have issued several recent decisions relied upon by defendants analyzing whether expert testimony, considered in conjunction with other evidence introduced at trial, properly supports a gang enhancement.
In In re Frank S. (2006) 141 Cal.App.4th 1192, the appellate court held that sufficient evidence did not support the juvenile court’s true finding that defendant possessed a knife for the benefit of his gang with the specific intent to promote, further, or assist criminal gang behavior. The gang expert simply informed the judge of her belief of defendant’s intent with regard to possession of the knife. The prosecution did not present any evidence that defendant was in gang territory, had gang members with him, or had reason to expect to use the knife in a gang-related offense. (Id. at p. 1199.)
In People v. Ramon (2009) 175 Cal.App.4th 843, officers stopped the defendant, a gang member, while he was driving a stolen vehicle within his gang’s territory with a fellow gang member. Officers found a loaded, unregistered firearm under the driver’s seat. Defendant was charged with gang enhancements. A gang expert who testified at trial concluded that the defendant’s crimes would benefit his gang. The jury found the gang allegations to be true. (Id. at pp. 847-848.)
The appellate court vacated the gang enhancements, holding that expert testimony about a possible reason to commit a crime is not sufficient, by itself, to support a gang enhancement. The court emphasized that “in order to sustain the People’s position, we would have to hold as a matter of law that two gang members in possession of illegal or stolen property in gang territory are acting to promote a criminal street gang. Such a holding would convert section 186.22[, subdivision ](b)(1) into a general intent crime. The statute does not allow that.” (People v. Ramon, supra, 175 Cal.App.4th at p. 853.)
In People v. Ochoa, supra, 179 Cal.App.4th 650, the jury convicted the defendant of carjacking and found that he committed the act for the benefit of a gang. The defendant approached the victim, who was sitting in a parked car, pulled out a shotgun, pointed it at the victim’s face and told the victim to give him the vehicle. The defendant drove away in the vehicle. Defendant had previously been identified as a member of the Moreno Trece (13) gang and had gang tattoos on his back and wrist. A gang expert opined that the defendant committed the carjacking for the benefit of his gang. (Id. at p. 653.)
The appellate court ruled that there was insufficient evidence to support a gang enhancement, stating that the “[d]efendant did not call out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti while committing the instant offenses. There was no evidence of bragging or graffiti to take credit for the crimes. There was no testimony that the victim saw any of defendant’s tattoos. There was no evidence the crimes were committed in Moreno Valley 13 gang territory or the territory of any of its rivals.... Defendant was not accompanied by a fellow gang member. [¶] While the [expert] testified that the carjacking could benefit defendant’s gang in a number of ways, he had no specific evidentiary support for making such inferences. Indeed, he admitted that there was no indication that defendant had used the vehicle to transport other gang members. There was no testimony that defendant used the vehicle to transport drugs or manifested any intention to do so.” (People v. Ochoa, supra, 179 Cal.App.4th at pp. 662-663, fn. omitted.) The court went on to conclude that the expert’s testimony “was based solely on speculation” (id. at p. 663) and vacated the enhancement.
The present case can be distinguished from the foregoing cases. Unlike the crimes in Frank S. and Ochoa, the instant crime was committed in 11 Deuce gang territory and was committed by two gang members working together. Unlike Ramon, which involved driving a stolen vehicle and having an unregistered firearm, the instant case involved a brazen carjacking conducted in the open in 11 Deuce territory. The gang expert opined that such a crime would communicate to everyone who lived in that area that it was the 11 Deuce “hood” and an 11 Deuce gangster committed the crime.
Additionally, Nash admitted that he committed the crime because of peer pressure from “homies.” When coupled with the undisputed facts that both defendants were gang members, their gangs worked together in committing crimes, and the crime was committed in the open in 11 Deuce territory, it was reasonable for the jury to have credited the facts presented at trial with Officer Archer’s expert opinion testimony and found defendants committed the instant crime “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. (b)(4).) We therefore reject defendants’ sufficiency of the evidence contention.
Defendants further contend that pursuant to Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103, section 186.22 requires a showing that the criminal offense was intended to facilitate criminal conduct by gang members, that is, other criminal conduct beyond the charged crime. Garcia is not binding on this court. (See People v. Burnett (2003) 110 Cal.App.4th 868, 882 [decisions of the United States Court of Appeals are not precedent in California and are merely persuasive authority].) Moreover, a decision from Division Four of this district disagrees with the holding of Garcia, and we find it to be a better reasoned decision.
In People v. Romero (2006) 140 Cal.App.4th 15, review denied September 20, 2006, Division Four noted that the plain language of section 186.22 requires a specific intent to promote “‘any criminal conduct by gang members, ’ rather than other criminal conduct.” (Id. at p. 19, italics omitted.) The Romero court concluded that section 186.22 does not require proof of a specific intent to promote criminal conduct other than the charged offense.
Division Six of this district agreed with Romero in People v. Vazquez (2009) 178 Cal.App.4th 347, 353-354, review denied December 23, 2009. We agree with Romero as well and decline to follow Garcia. All that was required here was proof that defendants intended to commit the instant crime for the benefit of a criminal street gang, and such proof was present.
B. Nash’s Redacted Statement
Jones claims that the trial court violated his rights to due process, a fair trial, and confrontation by admitting Nash’s redacted statement into evidence. We disagree.
At trial, over Jones’s objection, Officer Archie was allowed to testify that Nash’s statement that he had to participate with the carjacking because of peer pressure from his homies, was his shorthand way of saying that he was putting in work for the gang.
In People v. Aranda (1965) 63 Cal.2d 518, the California Supreme Court held that when the prosecution intends to offer the extrajudicial statement of one defendant which incriminates a codefendant, the trial court must either grant separate trials, exclude the statement, or excise all references to the nondeclarant defendant. (Id. at pp. 530-531.) Under Bruton v. United States (1968) 391 U.S. 123, “‘[A] defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating [statement] of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant.’” (People v. Mitcham (1992) 1 Cal.4th 1027, 1045, quoting from Richardson v. Marsh (1987) 481 U.S. 200, 207 [107 S.Ct. 1702, 95 L.Ed.2d 176].) A defendant’s Sixth Amendment right of cross-examination is violated by the admission of a nontestifying codefendant’s statement only if the codefendant’s statement facially and powerfully incriminates the defendant. (Richardson, supra, at pp. 207-208; People v. Fletcher (1996) 13 Cal.4th 451, 455-456.)
Nash’s statement did not facially or powerfully incriminate Jones. The evidence at trial included eyewitness testimony and the security videotape that depicted both defendants committing the crime. Nash’s statement did not include any reference to Jones or imply that it applied to Jones. Nash’s statement simply indicated that Nash committed the crime because of “fear” and “peer pressure” from his “homies” to do so. Nash’s statement was at most an admission of his own involvement in the carjacking. (See People v. Aranda, supra, 63 Cal.2d at p. 530, fn. 10 [statement which basically states, “I was one of the persons who [committed the crime, ] but I will tell you nothing more, ” is admissible in joint trial].)
C. Nash’s Sentence
Nash contends that his sentence of 15 years to life for carjacking, with the gang enhancement, is cruel and unusual based upon his age. Nash was 17 years old when he committed the crime. We disagree.
A statutory punishment may violate the constitutional prohibition against cruel and unusual punishment “‘if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’” (People v. Thompson (1994) 24 Cal.App.4th 299, 304; accord, Enmund v. Florida (1982) 458 U.S. 782, 788 [102 S.Ct. 3368, 73 L.Ed.2d 1140]; see also Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [111 S.Ct. 2680, 115 L.Ed.2d 836], conc. opn. of Kennedy, J.) In determining whether a sentence is disproportionate, the courts are to consider the nature of the offense, both in the abstract and in the particulars of its commission, as well as the nature of the individual offender. (People v. Dillon (1983) 34 Cal.3d 441, 477; People v. Weddle (1991) 1 Cal.App.4th 1190, 1197-1198.) “This entails an examination of the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts” and the defendant’s “age, prior criminality, personal characteristics, and state of mind.” (Thompson, supra, at p. 305.) The application of this proportionality analysis to reduce the conviction or punishment is the exception rather than the rule. (Id. at pp. 305-306; Weddle, supra, at pp. 1196-1197.)
Nash’s reliance on People v. Dillon, supra, 34 Cal.3d 441 is misplaced. In Dillon, the defendant, who was convicted of first degree felony-murder, was an unusually immature 17-year-old, in no prior trouble with the law, who shot the victim in response to a suddenly developing situation which he perceived as threatening to his own life. While the defendant largely created the threatening situation, his immaturity prevented him from seeing the risk he created or from extricating himself from the situation without panicking. (Id. at p. 488.) Additionally, his coparticipants in the underlying crime, who could have been liable for the killing as aiders and abettors, received only minimal punishment; none was convicted of any form of homicide. (Ibid.) For these reasons, the court held punishment as a first degree murderer with life imprisonment was cruel or unusual, and it reduced defendant’s conviction to second degree murder. (Id. at p. 489.)
Unlike the situation in People v. Dillon, supra, Nash was not immature, with no criminal background, unable to assess the risk of the situation in which he became involved, acting in panic as the developing situation spun out of control. (34 Cal.3d at p. 488.) He was a gang member with a significant juvenile record, which included arrests for assault with a firearm and two counts of mayhem, robbery and illegal possession of live ammunition, which all resulted in sustained petitions. He had been under some form of court supervision since he was 12 years old. The trial court found Nash’s level of engagement in serious or violent conduct in the span of just five years to be “phenomenal.”
In light of Nash’s extensive and violent criminal background, the sentence imposed on Nash is clearly not cruel or unusual despite his young age. It was an appropriate sentence for the commission of an extremely brazen and dangerous act of carjacking in public.
D. Abstract of Judgment
Nash contends that the trial court erred in imposing the 15-years-to-life sentence on the gang enhancement rather than on the underlying carjacking charge. The People agree.
Both defendants were convicted of one count of carjacking in violation of section 215, subdivision (a), and the gang enhancements under section 186.22, subdivision (b)(4), were found to be true. When committed under the circumstances set forth in section 186.22, subdivision (b)(4), carjacking carries a mandatory indeterminate term of 15 years to life in prison. (§ 186.22, subd. (b)(4)(B).)
At the sentencing hearing, there was a discussion on the appropriate sentence, and whether sentence should be imposed under section 186.22, subdivision (b)(4), in lieu of sentencing pursuant to section 1170. The trial court ultimately stated that “it was alleged and proven that the defendant violated Penal Code section 186.22 (b)(4). Therefore, the defendant is sentenced to prison for life with a minimum term of 15 years.” The abstracts of judgment state, “The Court imposes a sentence of 15 years to life pursuant to 1170 PC on the 186.22(b)(4) allegation and does not impose sentence on count 1.”
Section 1170 governs determinate sentencing.
As the court stated in People v. Jefferson (1999) 21 Cal.4th 86, 101, “[u]nlike an enhancement, which provides for an additional term of imprisonment, the 15-year minimum term in section 186.22(b)(4) sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.” (Italics omitted.) Thus, defendants cannot be sentenced on the gang enhancements. Rather, they must be sentenced for the crime of carjacking, as enhanced by the true finding under section 186.22, subdivision (b)(4).
We will modify the judgment to clarify that the sentences were imposed on the section 215 violations, with sentencing pursuant to section 186.22, subdivision (b)(4). We will also order the abstracts of judgment corrected.
DISPOSITION
The judgments are modified to reflect that the 15-years-to-life terms of imprisonment are imposed on defendants’ section 215 carjacking convictions, and they are imposed pursuant to the alternate sentencing scheme set forth in section 186.22, subdivision (b)(4). As so modified, the judgments are affirmed. The clerk of the court is directed to prepare new abstracts of judgment reflecting these modifications and to forward copies to the Department of Corrections and Rehabilitation.
We concur: WOODS, Acting P. J., ZELON, J.