Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA294370, Ruth Ann Kwan, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
Appellant Marvin W. Pegues was convicted of attempted murder of Victor Gouche (count two), Joanne Taylor (count three) and Raheem Moorhead (count four) in violation of Penal Code sections 664 and 187, subdivision (a), with findings as to each count that the offenses were committed willfully, deliberately and with premeditation pursuant to section 664, subdivision (a); that appellant personally used a firearm during the commission of the offenses pursuant to section 12022.53, subdivision (b); that appellant personally and intentionally discharged a firearm pursuant to section 12022.53, subdivision (c); and that the crimes were committed 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 the criminal conduct by gang members pursuant to section 186.22, subdivision (b)(1). As to count two, the jury also found true the allegation that appellant personally and intentionally discharged a firearm which proximately caused great bodily injury to Gouche pursuant to section 12022.53, subdivisions (d) and (e)(1). The jury also convicted appellant of carrying an unregistered and loaded firearm pursuant to section 12031, subdivision (a)(1) in count one, with findings that the crime was committed 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 the criminal conduct by gang members pursuant to section 186.22, subdivision (b)(1).
All further statutory references are to the Penal Code, unless otherwise stated.
Appellant was sentenced to state prison for life for the attempted murder in count two, plus an additional enhancement of 25 years to life pursuant to section 12022.53, subdivision (d). In counts three and four, he was sentenced to life for attempted murder, plus an additional enhancement of 20 years pursuant to section 12022.53, subdivision (c) and 186.22, subdivision (b)(1). In count one, he was sentenced to the midterm of two years enhanced by the midterm of three years pursuant to section 186.22, subdivision (b)(1). The sentences on counts one, three and four were made concurrent to the sentence in count two.
At the time of sentence, the trial court stated: “Now, the enhancement with the gun would include the 186.22 subdivision (b)(1). Okay? That is pursuant to People v. Lopez, 34 Cal.4th 1002.”
Pegues contends that there was insufficient evidence to support the conviction for attempted murder and the criminal street gang allegation. We find that there was sufficient evidence and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Liana Taylor, who was also known as Joanne Taylor, was driving her car on November 3, 2005 with Raheem Moorhead sitting in the front passenger seat and Victor Gouche in the back seat. The vehicle was being driven on Crenshaw Boulevard, which is the dividing line between two street gangs, the Black P-Stone gang and the West Boulevard Crips gang. The car pulled into the gas station at the northwest corner of Adams and Crenshaw Boulevards, in the West Boulevard Crips territory. Moorhead was wearing P-Stones gang attire. A blue SUV pulled up near them with three individuals inside, one of whom displayed a West Boulevard gang sign. Exiting the gas station, Taylor drove in front of the SUV and observed appellant in the front passenger seat. Taylor then drove on Adams, further into West Boulevard Crips territory, with the SUV following. She then made a U-turn on Adams and passed the SUV. She observed the driver (not the appellant) display a gang sign either of the West Boulevard Crips or the Rolling 40’s gang. The SUV also made a U-turn on Adams and continued to follow.
Taylor then drove south on Crenshaw Boulevard. The SUV followed, and passed the Taylor vehicle and stopped in front. Gouche observed appellant standing at the northwest corner of Crenshaw and 28th Street. Appellant was wearing a white T-shirt and his hair was in cornrow braids. Appellant reached into his waistband, pulled out a silver pistol with black handle and fired at Taylor’s car. Gouche was struck in the right leg and the neck. As a result of the shooting, Gouche was rendered a quadriplegic and unable to care for himself. Taylor, who had ducked down in her car before the shooting, looked up and saw appellant walking away holding a handgun. Police arrived, and obtained a description of the suspect’s vehicle and the shooter from Taylor. Shell casings were recovered from the scene.
On November 11, 2005, eight days after the shooting, police observed appellant, a known member of the West Boulevard Crips, walking in Black P-Stone territory. Appellant was walking with a juvenile. Appellant was dressed in West Boulevard Crips clothing. As the police approached, appellant grabbed the handle of a pistol from under his shirt and ran away. As police chased appellant, he removed a chrome .9-millimeter loaded handgun from his waistband and threw it over a fence. The gun was later recovered where appellant had thrown it, and appellant was arrested some distance away. At the time he was arrested, appellant had changed his clothes from what he had been wearing when police first observed him.
Comparison of shell casings recovered from the shooting scene of November 3 with shell casings test fired from the recovered weapon resulted in a match, with police criminalists opining that this weapon was the same gun used in the shooting of Gouche and the others on November 3.
Taylor identified appellant from a photographic lineup on November 16, 2005. On February 16, 2006, Gouche identified appellant from a photographic lineup as the person who had shot him.
Appellant offered evidence of his good character through the testimony of a former teacher and a pastor of a local church. He also presented the expert testimony of Dr. Robert Shomer, a psychologist who testified about the weaknesses of eyewitness identification.
DISCUSSION
1. Sufficiency of the Evidence for Attempted Murder
Appellant contends that there was insufficient evidence to support his conviction for attempted murder of Gouche, Taylor and Moorhead. He contends that the identification evidence provided by Gouche and Taylor was contradictory, untruthful and implausible and no substantial evidence was presented identifying him as the shooter.
Upon review of a challenge to the sufficiency of the evidence, “an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) Phrased in a slightly different way, “the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted.)
Although there were contradictions in the testimony of Taylor and Gouche, we conclude that their testimony was not physically impossible nor was it inherently improbable.
At one point in his testimony, Gouche testified that he did not look back to see the SUV because Taylor’s vehicle had a heavily tinted rear window. Appellant contends that this testimony contradicts Gouche’s later testimony that he was able to see appellant firing at him. Appellant argues that the tint on the windows would have made it physically impossible to see appellant shooting at him and that Gouche was lying. We disagree. Gouche testified that he was able to see out of the side window of the vehicle and saw the SUV in the gas station. The street corner where the shooter was standing was illuminated by a street light, and Gouche was able to provide a detailed description of appellant. A jury could reasonably find that Gouche observed appellant shooting at him and accurately identified him.
Appellant further challenges Gouche’s credibility. He contends that Gouche’s denial of gang membership was contradicted by other evidence and his photo lineup identification is tainted by the fact that he did not identify appellant when police attempted to interview him in the hospital shortly after the shooting. Determination of credibility is the exclusive province of the jury and the appellate court “must accord due deference to the trier of fact and not substitute [its] evaluation of a witness’s credibility for that of the fact finder.” (People v. Jones (1990) 51 Cal.3d 294, 314.) Appellant asks this court to reweigh the evidence and conclude that Gouche was untruthful. This we decline to do.
Appellant also contends that Taylor lied when she testified that appellant was the shooter. He argues that conflicts in her testimony demonstrate her untruthfulness. He points to the fact that she initially told police that appellant was both the driver of the SUV and the shooter, and that she lied about her gang affiliation. Taylor clarified her answer regarding whether appellant was the driver of the vehicle, describing her emotional state when she was interviewed by police. She further testified at the preliminary hearing and at trial that appellant was the shooter. As stated, supra, evaluation of the credibility of witnesses is the role of the jury and not the appellate court.
In addition to the identification by Gouche and Taylor, there was an abundance of corroborating evidence identifying appellant as the shooter. When approached by the police eight days after the shooting, appellant fled and discarded the weapon used in the shooting. He also owned an SUV of a similar description to that used in the shooting.
We find that substantial evidence supports the jury’s verdict convicting him of the attempted murder of Gouche, Taylor and Moorhead.
2. Sufficiency of the Evidence for the Gang Enhancement
Appellant contends that there was insufficient evidence to support the jury’s finding that the crimes for which he was convicted were 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” pursuant to section 186.22, subdivision (b)(1). Appellant contends that there was insufficient evidence to support a finding that he had the specific intent to promote gang activity. In this regard, he makes two arguments. First, he contends that the specific intent requirement is governed by the holding in Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 which interpreted that section to require a finding that the gang conduct promoted by the gang member must be separate from the facts of the underlying conviction. This interpretation is at odds with the plain language of the statute and with the analysis by other California courts that have considered it. We reject it as well. “By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members,’ rather than other criminal conduct.” (People v. Romero (2006) 140 Cal.App.4th 15, 19.)
Section 186.22, subdivision (b)(1)(C), provides that a true finding carries with it a minimum term of 10 years if the underlying conviction is for a violent felony. Attempted murder is a violent felony pursuant to section 667.5, subdivision (c)(12). Since appellant was sentenced to state prison for life for the attempted murder in count two, plus an additional enhancement of 25 years to life pursuant to section 12022.53, subdivision (d), the gang finding “‘is a factor that may be considered by the Board of Prison Terms when determining a defendant’s release date, even if it does not extend the minimum parole date per se.’” (People v. Lopez (2005) 34 Cal.4th 1002, 1009, quoting People v. Johnson (2003) 109 Cal.App.4th 1230, 1238.)
Federal court interpretation of state law is not binding. (People v. Burnett (2003) 110 Cal.App.4th 868, 882; Oxborrow v. Eikenberry (9th Cir. 1989) 877 F.2d 1395, 1399.)
Secondly, appellant also contends that the evidence is insufficient to support the finding that he had the specific intent to promote gang activity in committing the crimes for which he was convicted. He points specifically to the testimony of the prosecution’s gang expert, Officer David Dilkes. Dilkes testified that the two gangs in this case, appellant’s gang, the West Boulevard Crips, and the Black P-Stone Bloods were rival and feuding gangs at the time of the shooting. As part of this feud, members of the respective gangs would go into rival territory and mark their rival’s territory with their gang’s graffiti. This activity was regarded as demonstrating disrespect for the rival gang, a serious affront to rival gang members. Appellant complained about P-Stones entering his gang’s territory in a letter seized after his arrest. Dilkes testified that P-Stones had shot at West Boulevard members who had entered P-Stone territory a month before the shooting of Gouche, Taylor and Moorhead. Dilkes testified that members of West Boulevard would regard it as a sign of disrespect when Taylor drove into West Boulevard territory on November 3, 2005, with Moorhead seated in the front passenger seat dressed in P-Stones garb. Appellant’s SUV followed Taylor’s vehicle and the driver made a West Boulevard-appearing gang sign, followed by appellant, a West Boulevard gang-member, shooting at Taylor’s car. Dilkes testified that appellant was deeply involved with the West Boulevard Crips and that members of that gang were able to advance in stature in the gang by committing crimes such as shootings to protect and benefit the gang neighborhood.
In Dilkes’s opinion, the crimes appellant committed were “for the furtherance of the West Boulevard Crips against the P-Stones.” Appellant contends that this testimony is inadequate to prove that appellant had the specific intent to promote, further or assist in any criminal conduct of his gang members in the attempted murders because Dilkes failed to utter the words “specific intent.” We disagree. The conduct described herein provided substantial evidence that appellant committed the crimes for the specific intent to enforce control over his gang’s territory and protect his gang’s concept of “respect,” and to retaliate with violence for rival gang members entering his gang’s territory. Indeed, appellant’s conduct cannot be reconciled with any other reasonable conclusion. (See People v. Romero, supra, 140 Cal.App.4th at p. 20; People v. Morales (2003) 112 Cal.App.4th 1176, 1197-1198.)
Appellant also contends that there was insufficient evidence of the specific intent to support the gang enhancement for violation of section 12031, subdivision (a)(1), carrying an unregistered and loaded firearm, for which he was convicted in count one. Again we disagree. The facts underlying this conviction relate to the date of appellant’s arrest on November 11, 2005 and the recovery of the loaded pistol police had seen him carrying. There was substantial evidence to support the conclusion that appellant was continuing the conduct he engaged in on the day of the shooting by provocatively walking in rival gang territory while wearing his own gang’s attire. Such conduct would likely provoke a response by the rival P-Stones and result in appellant’s use of the loaded gun he was carrying. Substantial evidence supported the jury’s finding that the gang allegation was true as alleged in count 1.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P.J., ROTHSCHILD, J.