Opinion
E043324
9-5-2008
THE PEOPLE, Plaintiff and Respondent, v. DESHAWN SCOTT, Defendant and Appellant.
John Ward, 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, and James H. Flaherty III, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
1. Introduction
All statutory references are to the Penal Code unless stated otherwise.
After a month-long crime spree, defendant was charged with 14 offenses. A jury convicted him of nine crimes against six victims. The court sentenced defendant to an indeterminate sentence of 44 years to life and a determinate sentence of 30 years four months, to be served consecutively. As discussed below, we affirm the judgment.
On appeal, defendant challenges the great bodily injury (GBI) enhancement for count 1 for attempted murder and the criminal street gang enhancements imposed on counts 7, 11, and 14 for unlawfully taking a vehicle, carjacking, and witness intimidation. He also contends there was instructional error on count 5 for embezzlement. Defendants convictions on the additional counts for robbery (count 2), assault with a dangerous weapon (count 3), unlawfully taking a vehicle (count 4), and petty theft (count 12) are not the subject of this appeal. He was not convicted on counts 6, 8, 9, 10, and 13.
2. Facts
During December 2002, defendant stole a truck and two truckloads of meat from Drew Osias and Diamond Meat Products. He stabbed Jermaine Jackson and robbed Kelly Wilson. He assaulted Steven Harrell. He unlawfully took a vehicle from Nathaniel Porter. He committed a carjacking, robbery, and subsequent witness intimidation against Dorothy Barr. We confine ourselves primarily to the facts relating to the five challenged counts as they occurred chronologically.
a. Count 5—Embezzlement
In December 2002, defendant worked for Drew Osias and Diamond Meat Products, driving a refrigerated truck. After defendant abandoned the truck—which Osias later recovered—and failed to pay for two consignments of meat, Osias demanded payment of $2,407 from defendant. Defendant has never repaid Osias.
b. Count 1—Attempted Murder
At approximately 1:00 a.m., on December 23, 2002, Dorothy Barr, for a fee of $20, agreed to help Kelly Wilson and her boyfriend, Jermaine Jackson, return a borrowed Cadillac to a known drug house on Harding Street in Riverside. Barr and Wilson followed Jackson in Barrs car, a Honda Civic. The prosecution witnesses testified similarly as to what occurred at Harding Street.
Barr testified that Jackson went inside the house while Barr and Wilson waited in the Honda. Defendant came outside and pulled Wilson out of the car, demanding money or "dope." Jackson also came outside, denied having money or drugs, and began fighting with defendant. Barr drove away a short distance and then returned to the house where she saw Jackson staggering up the street and gasping for air. Wilson was screaming that Jackson had been "shanked." Barr delivered them both to a hospital.
Wilson testified that Jackson went into the house to return the car to "Rene." During the confrontation, defendant hit Jackson and Jackson slammed defendant against the hood of Barrs car. Defendant pulled a knife and stabbed Jackson in the upper ribs near the lungs. Then Barr drove off. Wilson tried to run away but defendant chased her, caught her, called her a "bitch," and placed the knife against her neck. He removed money forcibly from her pockets and walked away, leaving her on the ground. Jackson was bleeding. Barr returned and took them to the hospital.
Jackson testified defendant was a known user of PCP (phencyclidine). Jackson had used drugs with defendant and sold drugs to him. Jackson also sold drugs to Barr. Jackson and defendant both wanted to use the Harding house for drug sales. Defendant had threatened Jackson previously. Jackson knew defendant was a member of the Raymond Street Crips.
In the record, the names "Raymond Avenue Crips" and "Raymond Street Crips" are used interchangeably.
After Jackson had borrowed a car from Rene, another drug dealer, Rene and defendant called him repeatedly about returning the car. When Jackson returned the Cadillac to Rene about two hours later, he gave her the keys and some money. Defendant claimed Jackson owed him money and demanded money and drugs from Jackson and Wilson. Defendant hit Jackson in the face. Jackson slammed defendant against Barrs car. As Barr started backing up, defendant began chasing Wilson and Jackson realized he had been stabbed. Jackson saw defendant holding a seven-inch knife. Jackson collapsed and saw defendant menace Wilson with the knife, rip open her pockets, and remove money and cocaine. Barr conveyed them to the hospital. Defendant and Rene followed them in the Cadillac, frightening Jackson.
c. Count 7—Unlawful Taking of Vehicle
On December 28, 2002, Nathaniel Porter gave defendant a ride in a 1987 Chevrolet Caprice. When Porter left defendant alone in the car, defendant drove away without his permission, saying he would return in 15 minutes. Porter eventually called the police. Later Porter recovered the car, stripped, in the orange groves. Porter and defendant shared a history of drug use.
d. Counts 11 and 14—Carjacking and Witness Intimidation
While in Barrs company, defendant had a dispute about drugs with Steven Harrell and hit him over the head with a bottle. After the assault, defendant drove away with Barr in her car. Then he forced her to get out and drove off. Barr contacted the police. Defendant was arrested in Phoenix on January 1, 2003, in possession of Barrs stolen Honda, which he claimed to have rented.
Barr was reluctant to identify defendant because he had threatened her in letters and in person immediately after Jackson was stabbed. On the latter occasion, defendant threatened to "stretch," meaning "kill," Barr if she testified about the stabbing. He also warned her he was a Los Angeles Crip. In March 2003, defendant threatened to kill Barr in a phone call, causing her to seek protection through the witness assistance program.
e. Gang Evidence
The prosecutors gang expert, Michael Stamps, testified that gang "turf" boundaries are more permeable in Riverside County than in Los Angeles County where they are more established. Gangs value "respect," which they instill by fear and intimidation. Stamps testified about gang culture, including the topics of graffiti, initiation by the ritual of "jumping-in," and kinship.
Gang crimes include rape in concert, drive-by killings, and drug sales. Gang members also commonly use drugs. Automobile theft is another common gang crime. Among gangs like the Bloods and the Crips, a primary economic activity is selling drugs. A gang benefits from drug sales even when the money goes directly to a single gang member rather than being shared. A gangs reputation is enhanced if it gets a "corner on the market" in a particular location. Turf wars also benefit a gang "residually" because they signals to the community there is a danger of violence. Drug users know they must buy drugs from the gang at a particular location like the Harding Street house.
Stamps explained there are three branches of the Raymond Street Crips, all of whom support one another. Stamps identified defendant as a member of the "Ten Deuce Raymonds," also known as the "102nd Street Raymonds." They are engaged in a pattern of criminal activity, including selling drugs, assaults, shootings, murders, and property crimes. The 102nd Street Raymonds committed a felony assault in 2000 and a robbery in 2002. (§ 186.22, subd. (e).)
It is common for witnesses in gang cases to be reluctant to implicate defendants because they feel intimidated. In defendants jail cell, Stamps found names and addresses of witnesses for this case and of defendants fellow gang members. A paper, addressed to defendant by his street name, "Wacc" or "Wack," referred to "[f]orever hustlin with my world famous homie," which Stamps interpreted to mean making money by selling drugs and stealing cars. Other letters and writings demonstrated defendant was in touch with Raymond Street gang members and was being kept informed about assaults, homicides, and a rival gang. Defendant wrote in a gang style.
Defendants tattoo also signified his membership in the Raymond Street Crips. Defendant told the booking officer he had been a Raymond Street Crip. Stamps doubted that defendant was no longer affiliated with the gang.
In the opinion of Stamps, defendant committed Jacksons stabbing and Wilsons robbery as an "ambassador" for the benefit of the Raymond Street Crips and to enhance the gangs prestige. Taking Porters car was gang-related because defendant used his reputation as a violent gang member to exploit the victim. The drug-related assault on Harrell and the intimidation and carjacking of Barr also benefitted the gang. Barr knew defendant was a Raymond Street Crip and was intimidated for that reason. Taking Barrs car also enhanced the gangs reputation for aggression.
f. Defense Evidence
Defendants friend, Rudolph Hicks, testified that he knew Barr, Wilson, and Jackson. He said Barr was a drug user who would loan her car for "$2 and some dope." Barr confided to Hicks that she was afraid of defendant. At the scene of the stabbing, Hicks saw defendant arguing with Wilson and Jackson while Wilson brandished a knife. Hicks left the scene because he was on parole.
Defendant testified he was a drug user who had relapsed. He began frequenting the drug house and associating with other users, Jackson and Porter. He was not a dealer. He admitted stealing from Osias and using the money for drugs.
Defendant denied carrying a knife. He acknowledged that he had previously associated with the Raymond Street Crips while in prison but he denied being a member at the time of the present offenses.
Defendants version of the Jackson stabbing incident was that Jackson had taken his money and borrowed the Cadillac to buy drugs. When Jackson returned, defendant asked for the drugs or his money back. Defendant and Wilson yelled at each other. Defendant threw a punch at Jackson. Jackson knocked defendant against Barrs car. Wilson tried to stab defendant and stabbed Jackson instead. Defendant chased Wilson and took the knife away from her. He did not attack her or rob her.
Porter loaned defendant his car to buy drugs but he then called the police and reported the car was stolen. As a result, defendant abandoned the car, leaving the keys in the ignition.
Defendant and Barr spent a day together getting high. Defendant did not assault Harrell. Defendant offered Barr money, drugs, liquor, and a possible relationship with him if she would loan him her car to celebrate New Years Eve in Tempe, Arizona. Defendant dropped Barr off at the motel where she worked as a prostitute and he drove to Arizona with his girlfriend, Joy.
Defendant wrote Barr an "aggressive" letter from prison but he intended to persuade her not threaten her. He never threatened her or her son by phone or in the courtroom.
3. Section 186.22
Defendant received criminal street gang enhancements for the crimes of unlawfully taking Porters vehicle (count 7) and carjacking and witness intimidation in March 2003 against Barr (counts 11 & 14). The gang-related crimes earned him an enhancement of two years four months on count 7; a sentence of 15 years to life on count 11; and a consecutive sentence of seven years to life on count 14.
Section 186.22 provides: "(b)(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony 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, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows . . . ." The significant language is (1) "for the benefit of, at the direction of, or in association with any criminal street gang" and (2) "with the specific intent to promote, further, or assist in any criminal conduct by gang members."
Defendant argues that, when these crimes were committed, it was not yet established legally that dispossessing Porter and Barr of their cars and attempting to dissuade Barr from testifying was conduct undertaken for the benefit of a gang and with intent. Defendant contends section 186.22, subdivision (b), was unconstitutionally vague as applied to him because it did not afford him "fair warning" of what is unlawful: "The due process concept of fair warning is the underpinning of the vagueness doctrine, which `bars enforcement of "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." [Citations.] [`No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.].) Recently, the United States Supreme Court had this to say on the topic: `Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. [Citation.]" (People v. Castenada (2000) 23 Cal.4th 743, 751, citing United States v. Lanier (1997) 520 U.S. 259, 266.)
As defendant recognizes, this court has rejected previous facial constitutional challenges in In re Alberto R. (1991) 235 Cal.App.3d 1309, 1315-1324. The statutes use of the word "benefit" limits the scope of the section to those acts committed with the requisite specific intent, thus eliminating potential vagueness or overbreadth. (Id. at p. 1322.) The specific intent requirement prevents an ordinary person from having to guess at the statutes applicability. A defendant must know about a groups criminal activity and act intentionally to further that conduct, meaning the statute is limited to gang members who actually and knowingly engage in criminal activity. (Id. at p. 1323.) Other courts, predating these offenses, have agreed with Alberto R. (People v. Loeun (1997) 17 Cal.4th 1, 11; People v. Gardeley (1996) 14 Cal.4th 605, 616, 623; People v. Gamez (1991) 235 Cal.App.3d 957, 976, disapproved on other grounds in Gardeley, supra, 14 Cal.4th at p. 624, fn. 10.)
To the extent defendant argues the statute as applied to his particular circumstances is vague as to counts 7, 11, and 14, we disagree. Even though defendant acted alone, he acted as a gang member. Defendant took Porters car to buy drugs, indisputably an act committed to benefit the Raymond Street Crips and to promote or further the gangs program of drug dealing. When defendant committed carjacking and intimidation against Barr, he expressly represented himself to her as a gang member and used his status to intimidate her. His conduct as a gang member was intended to benefit the gang and to promote and further its purposes, even if those purposes also happened to coincide with his personal objectives.
We reject defendants constitutional challenge to section 186.22. We also reject his claim there was insufficient evidence of intent to support the gang enhancements. As just described, defendant was a member of a gang whose primary activities included drug dealing, property crimes, and intimidation of victims and witnesses. Defendants offenses against Porter and Barr fit within all these categories. Defendant boasted about his gang status and used it to accomplish his crimes. The gang expert offered his opinion that defendants conduct was for the benefit of the gang. Based on the totality of the evidence, the jury had enough evidence to conclude that defendant intended to commit his crimes for the benefit of the Raymond Street Crips. (People v. Margarejo (2008) 162 Cal.App.4th 102, 110; In re Frank S. (2006) 141 Cal.App.4th 1192, 1196-1199, citing People v. Gardeley, supra, 14 Cal.4th at pp. 617-618, 620, 623; People v. Olguin (1994) 31 Cal.App.4th 1355, 1384-1385.)
4. Embezzlement
Defendant admitted he stole the truck and sold meat from Diamond Meat to obtain drugs and he never intended to pay back Osias, the owner. Nevertheless, he argues the court should have instructed the jury sua sponte that his failure to repay a debt to Osias could not be the basis for a criminal conviction for embezzlement.
Defendant relies on People v. OBrien (1895) 106 Cal. 104, 105, in which the California Supreme Court said: "The modern statutory crime of embezzlement, which did not exist at common law, is not a substitute for imprisonment for debt, and cannot be used to punish a party for a failure to comply with an ordinary pecuniary obligation. It can be committed only when the confidential relation of employer and employee exists, and where the latter has feloniously converted money or other property of the former which come into the hands of the employee by virtue of said confidential relation."
Those are precisely the circumstances of the present case. Defendant was employed by Osias and the uncontradicted evidence, supplied by defendant himself, was that he feloniously converted his employers property. Notwithstanding Osiass effort to have defendant acknowledge the obligation by executing a written promise to repay Osias, defendant was properly charged with and convicted of embezzlement.
5. GBI Enhancement
Defendant argues the enhancement for great bodily injury (§ 12022.7) should not apply to a conviction for attempted murder, citing the dissent in People v. Lewis (1993) 21 Cal.App.4th 243, 256-257 and the rule of lenity. The majority holding in Lewis had approved the application of the enhancement for attempted manslaughter. (Id. at p. 247; People v. Sainz (1999) 74 Cal.App.4th 565, 573.) Many appellate courts, as acknowledged by defendant, have determined the enhancement also applies to attempted murder. (People v. Allen (1985) 165 Cal.App.3d 616, 631.) We are not persuaded to depart from established California law on this point.
6. Disposition
We affirm the judgment.
We concur:
Ramirez, P. J.
Hollenhorst, J.