Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA103013, Gary R. Hahn, Judge.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Tony Scally.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant William Gates.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendants and appellants, Tony Scally and William Gates, appeal the judgments entered following their convictions for robbery and burglary (Gates only), with gang, firearm, and prior prison term (Gates only) findings (Pen. Code, §§ 211, 459, 186.22, subdivision (b), 12022.53, 667.5). Scally was sentenced to state prison for a term of 23 years, and Gates was sentenced to state prison for a term of 21 years, 8 months.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed as to Gates. As to Scally, the judgment is affirmed as modified and remanded for resentencing.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. The robbery.
Claudia Arce worked at the Astro Coin Laundromat (“Laundromat”) on South Figueroa and 102nd Street in Los Angeles. Just before 6:00 a.m., on September 29, 2008, Arce arrived at work in her van. She parked, opened the Laundromat, and went into the office. A couple of minutes later a customer, Austin Philip, came in to do his washing. Arce was still in the office when three more men came in. One was wearing a blue jacket, the second was tall and wearing all black, and the third was wearing a ski mask.
The three men asked Philip, “Where’s the lady that runs the house?” Philip didn’t know Arce was in the office. Meanwhile, having seen the ski mask, Arce walked to the very back of the office. The man in the jacket looked through the office window, yelled “She’s in there, ” and the men started knocking on the office door. Speaking through a window, Arce asked what they wanted. The men ordered her to open the door and, when she refused, the tall man pulled out a revolver. He pointed it at Arce and told her to open the door or he would shoot. Arce agreed to give them money, but she still refused to open the door. The man in the ski mask got mad and kicked in the door. Meanwhile, Philip had run out the back door of the Laundromat.
Inside the office, the men demanded money from the cash register. Arce opened the register and they took the money. The men then shoved her into a small hallway and ordered her to open a locked cabinet. Because she didn’t have the key, Arce had to break the cabinet locks with a hammer. The men took money from the cabinet. Then they ordered her to open the change machines, but she did not have the right keys. The men threw Arce back into the office and left.
A few seconds later, Arce went out to the parking lot and saw someone driving off in her van. A “kid” standing on the corner asked if she had seen his brothers. Arce called the police and the kid left before they arrived.
Los Angeles Police Officer Travis Curtin responded to the call. While he was interviewing Arce, she suddenly pointed to someone walking down 102nd Street and said, “That’s him over there. He’s the one.” This was the “kid, ” who turned out to be Michael S. He was taken into custody. Curtin also noticed there was a faded gray Toyota Camry parked in the middle of the street.
Detective Alejandro Garcia arrived at the scene. He recognized Michael S. from previous encounters. He saw that the Camry’s ignition apparently had been punched. Inside the Laundromat, a surveillance camera had captured the robbery. When Garcia viewed the surveillance tape, he identified the suspected robbers as defendant Scally, defendant Gates, and Jonathan Hosea. Both Arce and Philip identified photographs of Scally as being the man who had the gun.
Police searched Gates’s house. From his bedroom, they recovered a belt with an “H” buckle and two pieces of paper containing gang graffiti relating to the Hoover Criminals gang.
2. Evidence presented only to the Gates jury.
Scally and Gates had separate juries at their joint trial. Only the Gates’s jury heard evidence about a burglary which occurred on September 26, 2008, at Damon Williams’s home on 98th Street. When Gates was interviewed by the police, he admitted that he and Hosea had committed this burglary.
Regarding the robbery, Gates said he had spent the previous night at Scally’s house and then been driven to the Laundromat in an old Toyota which Scally started with a pair of scissors. Gates, Scally and Hosea went into the Laundromat. Hosea was wearing the ski mask. Scally pulled out a revolver and robbed Arce. Afterward, Scally drove Arce’s van back to his house where he, Gates and Hosea split up the money. Gates said he got $100.
3. Evidence presented only to the Scally jury.
The Scally jury heard the tape of a telephone call he made from jail a few days after his arrest. During this conversation, Scally mentioned his accomplices and talked about having someone offer Arce money to “drop the charges.”
4. Gang testimony.
Los Angeles Police Officer Michael Knoke testified he was assigned to the Southeast Gang Enforcement Detail. He was familiar with the Hoover Criminals gang, which has been around since the 1970s. The gang has nearly 1, 000 members. It began as a Crips gang, but in the mid-1990s its members broke away and started calling themselves the Hoover Criminals instead of the Hoover Crips. Their primary activities include murders, drive-by shootings, drug trafficking, burglaries and robberies. Scally, Gates, Hosea and Michael S. were all members of the Hoover Criminals.
Knoke opined the Laundromat robbery had been committed for the benefit of, in association with, and at the direction of the Hoover Criminals gang.
The defendants did not present any evidence.
CONTENTIONS
1. The gang enhancement findings were improper.
2. The sentence on Scally’s gang enhancement must be stayed.
DISCUSSION
1. The gang enhancements were proper.
a. The gang enhancement statute.
“Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group’s primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]” (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.) The gang statute then requires two further elements: evidence of a felony committed “for the benefit of, at the direction of, or in association with any criminal street gang, ” and evidence the felony was committed “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)
b. Statutory and instructional issues.
Defendants contend the specific intent requirement of section 186.22, subdivision (b), is unconstitutionally vague, that it impermissibly punished them on a guilt-by-association theory, and that the associated jury instruction was defective. However, all these claims have recently been answered by People v. Albillar (2010) 51 Cal.4th 47, which explained:
Gates asserts the specific intent requirement “can be interpreted in two ways. It could mean the defendant must intend to assist the criminal conduct of other people who just happen to be gang members without regard for that membership. On the other hand, it could mean that the defendant must specifically intend to aid gang members – i.e., that he must intend to assist the others because of their gang membership. Stated another way, the statutory language could be interpreted to require the specific intent either to assist the crime or to assist the gang.”
Citing Scales v. United States (1961) 367 U.S. 203 (81 S.Ct. 1469), Gates argues: “To the extent the gang enhancement statute requires only the specific intent to assist criminal conduct by other people who merely happen to be gang members without regard for their membership, Mr. Gates contends it violated his federal constitutional right to due process. Worse than punishing a defendant for his mere membership in a gang, so construed, the statute punishes a defendant based solely on the gang membership of one or more accomplices.”
Gates argues: “CALCRIM 1401... informed the jury that the prosecutor had to prove Mr. Gates intended to aid ‘criminal conduct by gang members.’ The instruction failed to make clear that he had to have the intent to further the aims or goals of the gang – i.e., that he had to intend to assist in the criminal conduct because his accomplices were gang members doing gang business.”
“[W]e [have] determined that similar statutory language in section 186.22(a), which applies to an active participant in a gang who ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, ’ was not ambiguous and extended to any felonious criminal conduct, not just felonious gang-related conduct. We likewise find that the scienter requirement in section 186.22(b)(1) – i.e., ‘the specific intent to promote, further, or assist in any criminal conduct by gang members’ – is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction sought to be enhanced. [¶] A similar analysis disposes of the related argument... that section 186.22(b)(1) requires the specific intent to promote, further, or assist a gang-related crime. The enhancement already requires proof that the defendant commit a gang-related crime in the first prong – i.e., that the defendant be convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang. [Citation.] There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members. [Citations.]” (People v. Albillar, supra, 51 Cal.4th at pp. 66-67.)
Albillar continued: “We also reject the argument... that the constitutional requirement of personal guilt would compel the inclusion in the enhancement of a specific intent to aid the gang. The claim is specious. The enhancement set forth in section 186.22(b)(1) does not risk conviction for mere nominal or passive involvement with a gang. Indeed, it does not depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang. Defendants cite no authority to suggest that this would run afoul of [Scales v. United States (1961) 367 U.S. 203 (81 S.Ct. 1469)], which upheld a statute criminalizing active membership in an organization that advocates the overthrow of the federal government by force or violence even in the absence of a specific act of criminality. [Citations.] [¶] In sum, if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members.” (People v. Albillar, supra, 51 Cal.4th at pp. 67-68, italics added.)
Hence, defendants’ constitutional and instruction-related objections to the specific intent requirement of section 186.22, subdivision (b), are meritless.
c. Sufficient evidence sustained the enhancement finding.
Gates contends there was insufficient evidence to sustain the gang enhancement finding. This claim is meritless.
Scally joins in Gates’s argument to the extent it benefits him.
“In considering a challenge to the sufficiency of the evidence to support an enhancement, 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. [Citation.] 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.’ ” (People v. Albillar, supra, 51 Cal.4th at pp. 59-60.)
Gates argues there was insufficient evidence he “participated in the robbery with ‘the specific intent to promote the criminal street gang.’ ” However, as already noted, Albillar holds the second prong of this element of the gang enhancement only requires “the specific intent to promote, further, or assist in any criminal conduct by gang members.” (Italics added.) (§ 186.22, subd. (b); see People v. Albillar, supra, 50 Cal.4th at p. 67.)
Gates also argues the evidence showed the robbery had merely been a personal frolic unrelated to the gang because he told “detectives that he joined in the robbery because he needed money to help support his siblings. There was no evidence to contradict that personal motive for the offense.” Gates’s latter assertion is incorrect. Although “it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang, ” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198), Gates is ignoring the following evidence: the gang expert’s conclusion the robbery was gang-related; the expert’s specific testimony that the kind of personal frolic claimed by Gates was very unlikely; and Gates’s police statement indicating he knew nothing about the robbery beforehand and just got dragged along by the others.
Detective Knoke testified that, in his opinion, the Laundromat robbery was gang-related because robbery was one of the gang’s standard crimes, it had been committed within the gang’s territory, and one of the robbers had been wearing a gang-identifying baseball cap. As to Gates’s claim he had been on a personal frolic, Knoke testified: “... I guess it’s possible that he could be doing robberies for his family. However, I find it very unlikely. I’ve never come across a case where three other gang members, in addition to himself, are going out doing a robbery to support somebody’s family.” “[I]t’s very unlikely that four of them are going out to do a robbery to support a... divorcee.”
There was sufficient evidence to sustain the gang enhancement.
d. Bruton/Aranda claims.
Scally and Gates were charged and tried together, but the trial court utilized separate juries because each of them had made extra-judicial statements incriminating the other. Scally contends there were two instances in which this separate-jury prophylactic failed to protect his interests in connection with the jury’s true finding on the gang enhancement allegation.
(1) First instance.
In the first instance, Gates’s attorney was cross-examining Detective Garcia in front of both juries:
“Q. You also interviewed Mr. Gates; is that correct?
“A. Yes.
“Q. And during that interview, Mr. Gates told you that Dirty Red was the one who had the gun; is that correct?
“A. Yes.
“Q. Who is Dirty Red?
“[Defense counsel for Scally]: This is hearsay, Your Honor.
“The Court: Sustained at this point, unless you get rid of the orange jury right now. [¶] Don’t answer that. [¶] Get on to something else, and I will excuse the orange jury; and you can resume your cross examination in front of the green jury.
“[Defense counsel for Gates]: That was actually my last question.
“[Defense counsel for Scally]: Objection.
“The Court: The answer is stricken.”
(2) Second incident.
Officer Knoke, the prosecution gang expert, was testifying before both juries. The prosecutor asked if Knoke had any opinion about whether or not the robbery had been committed at the direction of the Hoover Criminals:
“A. Yes.
“Q. And what is that opinion?
“A. My opinion is that it was done at the direction of the gang.
“Q. And if you could just briefly describe the basis of that opinion.
“A. Well, I’ve reviewed statements provided after the arrest by [Michael S.] and also Mr. Gates, and it talks about how
“The Court: Don’t say what the statement talked about. Just answer the question.
“The Witness: Okay. [¶] Sorry, sir. [¶]... Mr. Scally basically puts together a crew and went out to do a robbery. Mr. Scally is a[n] older member, an O.G. in the gang, and so the other members of this crew or the other defendants in the case went out and did a robbery at the direction of a[n] older, O.G. guy.”
(3) Discussion.
Scally complains he was unfairly incriminated by these references to extra-judicial statements made by Gates, and that admission of the testimony amounted to Bruton/Aranda error. As we explained in People v. Orozco (1993) 20 Cal.App.4th 1554: “The essential holding of Bruton v. United States (1968) 391 U.S. 123..., is that a defendant is deprived of the Sixth Amendment right to confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the defendant who made it.... ” (Id. at p. 1564.)
Bruton v. United States (1968) 391 U.S. 123 (88 S.Ct. 1620); People v. Aranda (1965) 63 Cal.2d 518.
Scally states: “The statements were not prejudicial... on whether Scally participated in the robbery. That was established by Scally’s own telephone call, the witness testimony, and the videotape. They were also not prejudicial on the firearm enhancement. The witness testimony established that a principal used a gun in the robbery. [¶] However, it was prejudicial on the gang enhancement, because the prosecution’s evidence in support of the enhancement was not compelling. Gates’s inadmissible statements were also not cumulative but filled an important gap on whether this was a gang-related crime or a ‘detour unrelated to the gang’, i.e., a robbery for Scally’s personal benefit. [¶] The lay testimony established nothing more than that this was a pre-dawn robbery by three men seeking cash, which a jury would ordinarily and reasonably infer was for their personal gain. The expert testimony, exclusive of Gates’s statements, did not materially contradict that.”
Not so. The gang expert testified the Laundromat robbery was gang-related because robbery was one of the gang’s standard crimes, it had been committed within the gang’s territory, and one of the robbers had been wearing a gang-identifying baseball cap. And in contrast to Gates’s assertion to police that he joined the robbery only because he needed money to help his family, there was no evidence tending to show Scally was on a personal frolic.
Moreover, Scally is forgetting the first element of the gang enhancement is a disjunctive requirement: evidence that the underlying felony was committed “for the benefit of, at the direction of, or in association with any criminal street gang.” Knoke, the gang expert, referred to Gates’s police statement after having already testified that, in his opinion, Scally had committed the robbery for the benefit of and in association with the Hoover Criminals. So any Bruton/Aranda error caused by the reference to Gates’s extra-judicial statements would have been harmless. (See People v. Burney (2009) 47 Cal.4th 203, 232 [“Aranda/Bruton error is not reversible per se, but rather is scrutinized under the harmless-beyond-a-reasonable-doubt standard.”].)
As for Knoke’s testimony about Scally being the more experienced gang member who had put the crew together to carry out the robbery, we disagree with Scally’s argument the record shows Knoke’s opinion was not at all based on Scally’s jailhouse phone call. Knoke testified the phone call revealed Scally was “one of... the shot callers” in the gang, a guy “people come to... when they need stuff.” The jailhouse phone call also contained a circumstantial admission of Scally’s leading role in the robbery. Asked if he had spoken to the “gang detectives” and if he knew “[what] are they looking for?”, Scally replied: “ *** gonna say, uh, ‘We know you organized it, and they spent the night at your house the night before.’ I’m like, ‘Shit, you got me.’ ”
In sum, we conclude the gang enhancement was properly imposed on both defendants.
2. Remand for resentencing in Scally’s case.
Scally contends, and the Attorney General properly agrees, the trial court erred by imposing a consecutive 10-year gang enhancement term as well as a consecutive 10-year firearm enhancement term under section 12022.53. We will remand for resentencing.
Section 12022.53, subdivisions (b) through (d), imposes enhancements on defendants who personally use a firearm during the commission of an enumerated offense. Subdivision (e)(1) of that section extends these enhancements to any defendant who is also found guilty under the gang enhancement statute if a principal used a firearm. However, subdivision (e)(2) of section 12022.53 then provides: “An enhancement for participation in a criminal street gang... shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.”
As People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282, explained: “[W]here section 186.22 [the gang enhancement] has been found to be applicable, in order for section 12022.53 to apply, it is necessary only for a principal, not the accused, in the commission of the underlying felony to personally use the firearm; personal firearm use by the accused is not required under these specific circumstances. However, as a consequence of this expanded liability under section 12022.53, subdivision (e), the Legislature has determined to preclude the imposition of an additional enhancement under section 186.22 in a gang case unless the accused personally used the firearm.”
Here, the trial court imposed the firearm enhancement but the only finding was that a principal had used a firearm. Therefore, section 12022.53, subdivision (e)(2) precludes imposition of the additional term specified in section 186.22, subdivision (b). Scally asks us to remand so the trial court can decide whether to stay imposition of the 10-year gang enhancement or, in its discretion, strike the finding entirely. However, as the Attorney General points out, “the trial court imposed a middle-term sentence rather than an upper-term sentence for the robbery. The trial court should therefore be permitted on remand to reconsider its sentence for the robbery offense.” (See People v. Burbine (2003) 106 Cal.App.4th 1250, 1256 [“the trial judge’s original sentencing choices did not constrain him or her from imposing any sentence permitted under the applicable statutes and rules on remand, subject only to the limitation that the aggregate prison term could not be increased”]; People v. Castaneda (1999) 75 Cal.App.4th 611, 614 [remand for resentencing proper where original sentence contained unauthorized enhancement]; People v. Stevens (1988) 205 Cal.App.3d 1452, 1455-1458 [remand for resentencing proper where original sentence violated “double-the-base-term” rule].)
Therefore, we deem it appropriate to remand this matter so the trial court may consider restructuring Scally’s sentence.
DISPOSITION
The judgment as to defendant Gates is affirmed. The judgment as to defendant Scally is modified by staying the gang enhancement. As modified, defendant Scally’s judgment is affirmed. As to defendant Scally, the matter is remanded for resentencing in accordance with this opinion, and the clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment.
We concur: CROSKEY, J., ALDRICH, J.