Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Super.Ct.No. RIF108947
Corinne S. Shulman, 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, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
Defendant and appellant Teeon Richardson appeals a jury determination that the underlying offenses, robbery and burglary, were committed for the benefit of, at the direction of, or in association with a criminal street gang. He contends that the evidence was insufficient to show that the crimes were gang related and committed with the requisite specific intent. We affirm.
FACTS AND PROCEDURAL HISTORY
The Underlying Offenses
In March 2003, Vanessa Machen was working as a manager at a motel in Corona. At approximately 1:30 p.m., defendant and Timothy Barry entered the lobby and approached Machen at the desk. One of the men inquired about the price of a room. Machen answered. Defendant pulled a gun from his pocket. Both men approached the desk and propped their arms on the counter. Defendant aimed his gun at Machen. Defendant announced, “‘This is a robbery. . . . Give me your money. Give me what you have back there.’”
Frightened, Machen pulled out her cash drawer, took the cash from it and placed it on the counter. Defendant banged his gun on the counter but kept it pointed at Machen. He urged her to “‘Hurry. Hurry. Get it. Hurry. Hurry.’” Barry picked up the money from the counter, but insisted, “‘There’s more. There’s a safe. Where is it? Where is it?’” The men demanded that Machen open all of the cupboards. As she complied, defendant still tapped his gun on the counter and urged Machen to “‘Hurry.’”
Footsteps could be heard approaching the lobby. Defendant and Barry exchanged a look, defendant replaced his gun in his pocket, Barry took all the money, and both men left. Machen testified that the two men appeared to be acting as a team. They took over $500.00.
Defendant and Barry fled in a bluish green car. They were apprehended when they crashed their vehicle. Machen identified defendant and Barry as the robbers; she specifically identified defendant as the man who held the gun.
In a police interview, defendant admitted robbing the motel and admitted he had used the gun.
A jury convicted defendant of both robbery and second degree burglary. The jury also found that defendant had personally used a firearm in the commission of each offense. The jury deadlocked, however, on the criminal street gang allegations as to both counts, and the court declared a mistrial on those allegations.
Retrial on Gang Allegations
A retrial was had on the criminal street gang allegations in November 2005. Evidence was presented concerning a criminal street gang, the 706 Hustlers, which began to operate in the city of Bellflower in the 1990’s.
The name “Hustler” referred to taking money from people. The “706” in the gang name stood for the last three digits of the Bellflower zip code. The 706 Hustlers used a dollar sign as their symbol, and green was their gang color. The gang’s preferred crimes were robberies, burglaries, and automobile theft, with some drug dealing as a secondary activity. The prosecution’s gang expert testified that, “you’ve got to remember the gang members, they call themselves 706 Hustlers, which means they are into the money. They like money. So they are crimes that are going to get money for the gang.” Some of the crimes committed by the 706 Hustlers included murder. In 1997, a 706 Hustlers gang member shot and killed a clerk in a liquor store robbery.
The expert also testified that, in gang culture, “respect” and reputation are of critical importance. A gang member earns “respect” by committing crimes. The crimes enhance the gang member’s status within the gang, and they also benefit the gang in general by increasing the gang’s reputation, both in competition with other gangs and among the nongang members of the community. Instilling fear and terror by committing crimes in the community also benefits the gang; fewer crimes are reported, victims will not testify, and the gang is able to operate more freely from law enforcement scrutiny.
Gang members develop other strategies to keep their identity and activities from law enforcement, including admonishing their members to give false names if apprehended. In this case, defendant’s co-participant, Barry, gave a false name when he was arrested. The name Barry gave happened to be the name of another 706 Hustlers member. Barry’s use of that name showed his familiarity with and association with past members of the 706 Hustlers.
Barry had tattoos that indicated he was a member of the 706 Hustlers, and he associated with other known gang members. Defendant also had 706 Hustlers tattoos, which he had done nothing to hide, alter or erase. Defendant had been arrested in 1994 with other 706 Hustlers gang members in a take-over store robbery. Defendant admitted membership in the gang at that time. He was known to be still associating with the gang’s other members in 2002.
The jury returned verdicts finding the gang allegations true as to each offense. The court sentenced defendant to the middle term of three years for the robbery, plus 10 years for the firearm enhancement, plus 10 years for the street gang enhancement. The court imposed, but stayed, sentence on the burglary count.
ANALYSIS
I. Standard of Review
The thrust of defendant’s argument is that the evidence was insufficient to support a true finding of the gang enhancement, based either on a showing that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, or on a showing that defendant had the specific intent to promote, further or assist in criminal conduct by gang members.
“‘“‘When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.’” [Citations.]’ (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We resolve all conflicts in favor of the judgment and indulge all reasonable inferences from the evidence in support of the judgment. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) This standard applies to convictions resting primarily on circumstantial evidence (People v. Perez (1992) 2 Cal.4th 1117, 1124), and to gang enhancement findings (People v. Ortiz (1997) 57 Cal.App.4th 480, 484).” (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)
II. The Evidence Was Sufficient to Support the Gang Enhancement Finding
The matters in dispute are whether the evidence was sufficient to sustain a finding as to two criteria under the Street Terrorism Enforcement and Prevention Act (STEP Act) (Pen. Code, §§ 186.20-186.33). Under this scheme, the prosecution must prove both that the crime for which the defendant was convicted had been “committed for the benefit of, at the direction of, or in association with any criminal street gang,” and that the defendant acted “with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (Pen. Code, § 186.22, subd. (b)(1).)
Here, the evidence showed that the 706 Hustlers was a criminal street gang, meeting the statutory definition and criteria for that designation. Both defendant and his co-participant Barry were or had been members of that gang. The favored crimes committed by the 706 Hustlers were robberies, burglaries and car theft. The gang’s name referred to the primary activity of taking money from people. The gang symbol was a dollar sign, and the gang color was green. Both defendant and Barry had gang tattoos. Defendant had been involved in a take-over store robbery in 1994, at which time he claimed membership in the gang.
The present crimes were a burglary and robbery of a motel business. Defendant and Barry acted in concert. They took $500.00 at gunpoint.
The commission of crimes like those here benefited the gang by enhancing the gang’s reputation for ruthlessness and boldness, by instilling fear in the community, and by procuring funds. When defendant and Barry were apprehended, Barry gave a false name to police. Giving a false name was consistent with the gang credo of hiding their identities and activities from police. The false name Barry gave was in fact the identity of another 706 Hustlers gang member. Using that name showed that Barry was familiar with past gang members.
Defendant points out, correctly, that a crime may not be found to be gang related based solely on an actor’s criminal history and past gang affiliations. (See, e.g., In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 (Frank S.); People v. Martinez (2004) 116 Cal.App.4th 753, 761 (Martinez).) Frank S. and Martinez are, however, distinguishable. In Frank S., a juvenile bicyclist was stopped for a traffic violation and found in possession of a knife. A gang expert testified that she believed, from the juvenile’s statements, that he was a gang member or supporter. She further opined that he possessed the knife for protection in case he encountered rival gang members. This was pure speculation, not tied to any gang purpose. Significantly, “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.” (Frank S., supra, 141 Cal.App.4th at p. 1199.) Here, by contrast, there was evidence that defendant was with another gang member, and he personally used his gun to perpetrate the very crimes that constituted the primary activity of the 706 Hustlers.
In Martinez, the issue was whether the evidence was sufficient to support a gang registration requirement, based on the trial court’s finding that the crime committed was “gang related.” The defendant had committed some auto burglaries, with a companion, but it was not shown that the companion was a gang member. (Martinez, supra, 116 Cal.App.4th at p. 762.) Here, by contrast, defendant’s co-participant was shown to be a fellow gang member. In addition, as the Martinez court emphasized, “We do not conclude that a defendant’s personal affiliations and criminal record are without consequence in finding a ‘gang related’ crime within the meaning of section 186.30. To the contrary, a defendant’s history of participation in gang activities or criminal offenses may prove that a crime not otherwise or intrinsically gang related nevertheless falls within the meaning of section 186.30. Thus, a crime committed by a defendant in association with other gang members or demonstrated to promote gang objectives may be gang related. However, 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.” (Martinez, supra, 116 Cal.App.4th at p. 762, original italics.) The jury’s finding here was based not merely on defendant’s past associations and affiliations, but also on the circumstances of the present crime, which was the kind of crime historically favored by that particular gang, and that was committed with another known gang member, who invoked the false identity of another gang member when apprehended.
Under these circumstances, a jury could reasonably infer that the crime was committed for the benefit of, at the direction of, or in association with the 706 Hustlers criminal street gang. Similarly, the circumstances also supported a reasonable inference that the crime, committed for the benefit of, at the direction of, or in association with a criminal street gang, was committed with the specific intent to promote, further, or assist in gang criminal conduct.
In essence, defendant simply argues the inferences favorable to his own view. “That approach is inapplicable on appeal. ‘[E]ven though the appellate court may itself believe that the circumstantial evidence might be reasonably reconciled with the defendant's innocence, this alone does not warrant interference with the determination of the trier of fact. [Citations.] Whether the evidence presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Park (2003) 112 Cal.App.4th 61, 72, original italics.)
DISPOSITION
The judgment is affirmed.
We concur: Richli J., King J.