Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CF0859, Richard F. Toohey, Judge.
David Y. Stanley, 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, Assistant Attorney General, Barry Carlton and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Richard Soto of carjacking (Pen. Code, § 209.5 subd. (a); all statutory references are to the Penal Code, unless otherwise noted), assault with a BB gun (§ 245, subd. (a)(1)), criminal threats (§ 422), willful infliction of corporal injury on a cohabitant (§ 273.5, subds. (a) & (e)(1), second degree robbery (§ 211), and active participation in a criminal street gang (§ 186.22, subd. (a) [§ 186.22(a)]). The court also found he had previously suffered two convictions under the Three Strikes law, one of which was a serious felony under section 667, subdivision (a), and that he had previously been convicted of cohabitant abuse. Defendant challenges the sufficiency of the evidence to support the gang conviction. The Attorney General argues the court erred in sentencing defendant. For the reasons expressed below, we affirm the convictions, reverse the sentence, and remand for resentencing.
I
On March 6, 2006, around 4:00 a.m., Analisa Cabrera, homeless and sleeping in her car, received a phone call from defendant asking for a ride and directing her to meet him at an apartment building in Santa Ana. The pair had been romantically involved for about 18 months and sometimes lived together. When Cabrera arrived, however, she found him with Sandra Olivos. Miffed at Olivos’s presence, Cabrera refused to give them a ride and departed. Defendant called again, assuring her he would be alone. When Cabrera returned, defendant entered the car, asked what her problem was, waved or pointed a gun at her, and told her to drive to a gas station about four blocks away. Unable to find his wallet, he redirected her back to the apartment, took her car keys and told her to accompany him inside. Once inside, he beat and kicked her and hit over the head with the gun. Olivos stood nearby during part of the beating, but defendant gave her Cabrera’s car keys and told her to wait outside. He waved the gun around Cabrera’s body, asking where she wanted him to shoot her. He also removed the battery from Cabrera’s cell phone. Defendant and Olivos decamped in Cabrera’s car, which they abandoned a few hours later. Cabrera walked to the gas station and called 911.
The next day around 1:00 a.m., Olivos called Javier Zaragoza Capetillo (Zaragoza), a sexual acquaintance who gave her money for drugs and clothes, and asked him to meet her at a Santa Ana convenience store. After Zaragoza picked her up, she asked if he could give her girlfriend a ride. Zaragoza agreed, and they drove until Olivos directed him to stop the car. Zaragoza became uneasy when defendant, rather than Olivos’s girlfriend, entered the car. He drove the pair to another location where defendant delivered marijuana. After the delivery, Olivos pulled a knife on Zaragoza and defendant pointed a gun partially covered by a brown bandanna. They demanded his wallet, which contained about $200. He complied, and Olivos grabbed his cell phone. She and defendant walked off and eventually made their way to Jose Martinez’s apartment. Police apprehended defendant about a week later. Investigators searched Martinez’s apartment where they found Zaragoza’s cell phone, a brown bandanna, and a metal BB gun that looked like a real handgun. Martinez claimed the gun and bandanna belonged to him.
Olivos, who testified in exchange for the prosecutor dismissing the charges involving Zaragoza, testified she had known defendant, nicknamed “Weasel,” for about a week when the crimes occurred. She overheard defendant mentioning “Logan Street” during his conversations with other males.
A gang officer, Ronald Castillo, testified defendant admitted he was an active member of the Logan Street gang, he had been a member since about 1994 and knew its members engaged in a pattern of criminal activity. The gang claimed the vicinity where the crimes occurred as its turf. Defendant had received four gang notices based on his association with gang members, the first one in August 1998 and the last in January 2006. The gang’s primary activities included robbery and possession of drugs for sale. Gang members had committed predicate criminal acts, such as robbery and drug possession, in July 2003 and March 2004. Castillo explained that gang members generally gain respect within their gangs by committing crimes, and in their view, the more violent the crime, the greater the respect attained by the gang from the fear engendered in the community. Logan Street gang members wear brown and may carry brown handkerchiefs. In Castillo’s opinion, defendant’s criminal conduct on March 6 and 7, 2006, enhanced his and the gang’s reputations.
II
Defendant challenges the sufficiency of the evidence to support his conviction for active gang participation, arguing no evidence showed he had a gang-related motive or purpose in committing the felonies. He asserts the gang expert based his testimony on general principles and speculation that commission of a felony by a gang member necessarily promotes the gang: “If the generic evidence [from the expert] was sufficient to support the ‘gang-related charge,’ every crime committed by a gang member would qualify for a separate conviction of” section 186.22(a).
The Attorney General responds the unambiguous language of section 186.22(a) does not require that a defendant’s felonious conduct promote, further, assist, or benefit the gang. Rather, any felonious conduct by the gang member will suffice. Distinguishing cases where the gang-related nature of the offense established a defendant’s active participation in a criminal street gang, the Attorney General notes there is no question, based on defendant’s pretrial and trial admissions, that the evidence established he was an active member of his gang. Alternatively, he asserts there was ample evidence defendant’s felonies were gang-related, based on defendant’s use of a gang-colored bandanna during the robbery of Zaragoza and the gang expert’s testimony these violent crimes would promote the gang by enhancing its respect within the community.
Section 186.22(a) punishes a person who “actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . .” As the Supreme Court explained, “[t]he substantive offense defined in section 186.22(a) has three elements. Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, . . . ‘knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity,’ and . . . the person ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’” (People v. Lamas (2007) 42 Cal.4th 516, 523.)
We need not decide whether a gang-related motive or purpose in committing the felonies is required. (Compare People v. Martinez (2008) 158 Cal.App.4th 1324, 1334 [“Defendant misapprehends the elements of the substantive crime of street terrorism. Contrary to what is required for an enhancement under section 186.22(b), section 186.22(a) does not require that the crime be for the benefit of the gang”] with People v. Ferraez (2003) 112 Cal.App.4th 925, 930, italics added [section 186.22(a) “‘applies to the perpetrator of felonious gang-related criminal conduct’”]; see also People v. Ngoun (2001) 88 Cal.App.4th 432, 436.) Even assuming the crime of active participation in a criminal street gang requires a gang-related motive when committing the charged crime, the evidence demonstrates a sufficient nexus between defendant’s felonious conduct and his gang participation.
Overwhelming evidence, including previous and recent police contacts, a judicial admission and other evidence at trial, established defendant was more than a nominal or passive member of Logan Street. The gang expert’s opinion that defendant’s violent acts would enhance his and the gang’s reputation was not unreasonable. A carjacking is a prototypical gang crime. In any event, standing alone, defendant’s use of a brown bandanna and replica gun during the robbery of Zaragoza promoted or furthered the gang even if there was no evidence Zaragoza lived in the neighborhood or knew about the gang’s symbols. The facts of these crimes would undoubtedly become known to the gang and its neighborhood through defendant, Olivos and Cabrera. Defendant’s reliance on cases lacking overt indicia of a gang purpose, such as the bandanna and colors here or gang handsigns or graffiti, is therefore misplaced. (E.g., People v. Albarran (2007) 149 Cal.App.4th 214, 227.) Substantial evidence supports the jury’s conclusion defendant violated section 186.22(a).
III
The trial court imposed four concurrent 25-year-to-life terms under the Three Strikes law for each of the convictions except robbery. Concerning the robbery conviction, the court struck the two strikes (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and imposed a one-year, one-third midterm consecutive sentence, citing defendant’s substance abuse problems, the fact the weapon was a replica, and the belief that a sentence of “80 to 100 years to life would be a disproportionate sentence.” The court also imposed a single five-year enhancement under section 667, subdivision (a), and a one-year enhancement under section 667.5, subdivision (b).
The trial court found one of the strike priors was not a serious felony within the meaning of section 667, subdivision (a).
We agree with the Attorney General, and defendant does not argue otherwise, the term imposed for robbery was unauthorized. California Rules of Court rule 4.451 provides that when a defendant is sentenced under section 1170 and the sentence is to run consecutively to an indeterminate sentence in the same or another proceeding, the judgment must specify the determinate term imposed under section 1170, which must be computed without reference to the indeterminate sentence and be served consecutively to the indeterminate sentence. (See People v. McGahuey (1981) 121 Cal.App.3d 524, 531.) As the only determinate component of the sentence, a full term for robbery was required because robbery was not a “subordinate” term. (§ 1170 [court shall sentence defendant to one of three terms of imprisonment specified]; § 1170.1 [subordinate term for consecutive offenses shall consist of one-third of the middle term].) The punishment for second degree robbery is two, three, or five years. (§ 213.)
The court also erred by imposing a single enhancement under section 667, subdivision (a). The court was required to impose the section 667, subdivision (a), enhancement on the determinate term for robbery and also on the indeterminate terms imposed under the Three Strikes law for current serious felonies. (People v. Misa (2006) 140 Cal.App.4th 837, 845; People v. Williams (2004) 34 Cal.4th 397, 402.) We therefore remand the matter to the trial court for resentencing.
III
The convictions are affirmed. The sentence is reversed and the case is remanded to the trial court for resentencing in accordance with this opinion.
WE CONCUR: SILLS, P. J., FYBEL, J.