Opinion
B198113
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. ERICK VENCES, Defendant and Appellant.
Courtney M. Selan, 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, Senior Assistant Attorney General, Susan D. Martynec and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Erick Vences appeals from the judgment entered following a jury trial in which he was convicted of two counts of second degree robbery, counts 1 and 2 (Pen. Code, § 211), and possession for sale of a controlled substance, methamphetamine, count 3 (Health & Saf. Code, § 11378), with the finding that the offenses were committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1)(C), and that the victim in count 2 was under the age of 14 within the meaning of Penal Code section 667.9, subdivision (a). He was sentenced to prison for a total of 18 years and 4 months, consisting of the middle term of three years plus 10 years for the gang enhancement in count 1, one-third the middle term or one year, plus one year for the vulnerable victim enhancement in count 2, plus one-third the gang enhancement or three years and four months. As to count 3, appellant was sentenced to a concurrent term. Appellant contends there was insufficient evidence to support one of the second degree robbery convictions and that the trial court committed sentencing errors. For reasons stated in the opinion, we modify the judgment and affirm.
FACTUAL AND PROCEDURAL SUMMARY
On October 24, 2006, Andres R. was walking home from school when a white car with three men and one woman stopped next to him. The three men got out of the car, and appellant, the driver, asked R. where he was from. R. responded that he was not in a gang. Appellant said he was from "Puente" and with one hand grabbed R. by the neck. In the other hand, appellant held a beer bottle. The men asked R. what he had in his pockets and while appellant held R., the other two searched him. R. understood "Puente" was a gang and that made him fearful. One of the men removed R.s wallet from his pocket and another tore off a chain R. was wearing around his neck. Appellant and the two other men got back into the car and appellant drove the car away. R. called the police and gave them the license plate number of the robbers vehicle. After the police arrived at the scene, they took R. to another location where R. identified the vehicle, appellant, and two of the individuals who had been in the car immediately before the robbery.
On that same date, Jesus M., who was 12 years old, was walking home from school with other people when a white car passed. Four people were in the car and the man in the front passenger seat screamed at him to get out of the way. M. was in the street because he had dropped something and he stepped back on the sidewalk to avoid being run over. M. motioned with his hands and the car stopped and backed up. M. opined that one of the occupants of the vehicle "thought [M.] was throwing a gang sign." M. continued to walk and the vehicle stopped in front of him. Appellant got out of the car, pushed M. against the fence and asked him, "Where is your money?" He told appellant that he did not have any money. Appellant then grabbed M.s arm and searched his pockets. Appellant did not take anything from M.s pockets but took M.s boot from his foot. M. did not stop appellant from taking the boot because he was afraid. Appellant got back into the car and handed the boot to the man in the passenger seat. As appellant drove away, the man in the front passenger seat said, "Dont be throwing gang signs no more" and threw M.s boot back to him. Someone called the police and M. told them what happened and described the car the individuals were riding in. M. was taken to a location where he identified the vehicle and appellant.
The court stated for the record that M. was "indicating raising both hands up approximately eye height, with fingers splayed."
Appellant was arrested at his home. A search of his bedroom revealed three plastic baggies containing methamphetamine and a digital scale. It was the opinion of the narcotics detective for the Los Angeles County Sheriffs Department that the drugs were possessed for sale based on the fact that the three baggies contained equal portions of the drug and that empty baggies and a digital scale were found with the drugs.
Los Angeles Deputy Sheriff George Meza transported appellant to the Sheriffs station. While laughing in the back seat of the car, appellant said something to the effect of "I know everything is going to be dropped. . . . Good job, deputy, you know, Ill be out by tomorrow, I know where the victim lives." He said, "This wont go far, the victims wont even go to court."
Gang expert Deputy Sheriff Jon Hinds testified appellant was a member of the Eastside Puente Street Gang and went by the moniker of "Danger." It was his opinion that the robbery of R. was committed for the benefit of the street gang. His opinion was based on the fact that upon the initial contact with the victim, appellant and his companions asked the victim where he was from. That is a common challenge issued by members of a gang to any individual they approach. The purpose is to either challenge that persons gang membership or to let a nonmember of a gang know the area is claimed by the gang. The location of the robbery was in the territory of Little Hill Street gang, outside appellants gang territory, which led Deputy Hinds to believe appellant was there to challenge members of the Little Hill Street gang.
Deputy Hinds was also of the opinion that the crime committed against M. was committed for the benefit of the street gang. Appellant and his companions believed M. was flashing gang signs at them. As a result, they confronted and intimidated him by pushing him and stealing his property. These acts enhance the reputation of a gang, increasing fear and intimidation over the general public.
Deputy Hinds was of the opinion that the drug possession offense was also for the benefit of the street gang. Gang members sell narcotics to enhance their name within the gang and the gangs reputation. The money from the drug sales is used to help the gang purchase weapons to use in other robberies and assaults against other gang members and the public.
DISCUSSION
I
Appellant contends there was insufficient evidence to support the second degree robbery of victim M. Appellant claims there is insufficient evidence that he harbored the specific intent to permanently deprive M. of the boot when he took it.
The standard of review on a claim of insufficiency of evidence is settled. "`A reviewing court faced with such a claim determines "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.] We examine the record to determine "whether it shows 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." [Citation.] Further, "the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citations.]" (People v. Moon (2005) 37 Cal.4th 1, 22.) Reversal is unwarranted unless it appears "`"that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." [Citation.]" (People v. Hughes (2002) 27 Cal.4th 287, 370.)
"The same standard applies to the review of circumstantial evidence. [Citation.] . . . Therefore, an appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jurys findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding. [Citations.]" (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139, fn. omitted.)
To prove a robbery, the prosecution must establish the defendant took property from the victim "by means of force or fear with the specific intent to permanently deprive him of that property." (People v. Young (2005) 34 Cal.4th 1149, 1176-1177; People v. Lopez (2003) 31 Cal.4th 1051, 1058; Pen. Code, § 211.) "[T]he intent required for robbery . . . is seldom established with direct evidence but instead is usually inferred from all the facts and circumstances surrounding the crime. [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 643.) "[A]n intent to permanently deprive someone of his or her property may be inferred when one unlawfully takes the property of another." (People v. Morales (1993) 19 Cal.App.4th 1383, 1391.)
Here, the 12-year-old victim was walking down the street when appellant got out of his car and assaulted him. Appellant pushed M. against a fence, demanded money, and searched M.s pocket, when M. said he had no money. Not finding any money, appellant pulled a boot off M.s foot and got back into his car and proceeded to drive away. We note that appellant did not return the boot to M. Instead, he handed it to a passenger. The fact that appellants passenger threw the boot back at the victim does not negate the reasonable inference that at the time appellant grabbed M.s boot it was appellants intention to deprive M. of it permanently. (See People v. Carroll (1970) 1 Cal.3d 581, 584.) "[T]he return of property previously taken does not compel the conclusion that a defendant intended only to temporarily deprive the owner of the property. [Citations.]" (In re Albert A. (1996) 47 Cal.App.4th 1004, 1008.)
II
Appellant contends under the rule of People v. Tassell (1984) 36 Cal.3d 77, 90, the gang enhancement functions as a status enhancement and should be applied only once per information. He argues that because his status as a member of a gang pertains to the nature of the offender and not the nature of the offenses, the enhancement should be applied only once per information. We disagree.
Penal Code section 186.22, subdivision (b)(1) provides, "Except as provided in [relevant part] . . . 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: [¶] . . . [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years."
There is no requirement that one be a gang member for the enhancement to apply. (See In re Ramon T. (1997) 57 Cal.App.4th 201, 207.) The enhancement was not based on appellants status as a gang member but on his conduct.
III
Appellant contends he should have been sentenced to a four-month term pursuant to Penal Code section 667.9 instead of the full one-year term imposed by the court. Respondent agrees. Penal Code section 1170.1, subdivision (a) provides in relevant part, "(a) Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." "As used in Section 1170.1, the term `specific enhancement means an enhancement that relates to the circumstances of the crime. It includes, but is not limited to, the enhancements provided in Sections . . . 667.9 . . . ." (Pen. Code, § 1170.11.) Thus, the sentence for the violation of section 667.9 was limited to one-third the full term, which is four months.
Penal Code section 667.9, subdivision (a) provides in relevant part, "Any person who commits [a Robbery] against a person who is . . . under the age of 14 years, and that disability or condition is known or reasonably should be known to the person committing the crime, shall receive a one-year enhancement for each violation."
DISPOSITION
The judgment is modified to reflect in count 2 the enhancement term pursuant to Penal Code section 667.9 is four months rather than one year. The total prison term is modified to 17 years and eight months and, as modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and forward it to the Department of Corrections and Rehabilitation.
We concur:
EPSTEIN, P. J.
WILLHITE, J.