Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, No. TA099062, Paul A. Bacigalupo, Judge
Lynette Gladd Moore, 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, Victoria B. Wilson, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Reuben Alarcon was convicted by jury of assaulting a peace officer with a semiautomatic firearm. (Pen. Code, § 245, subd. (d)(2).) He was acquitted of attempted murder of a peace officer. (§§ 664, 187, subd. (a).) The jury found true the allegation that appellant used a firearm within the meaning of sections 12022.53, subdivision (b) and 12022.5 subdivisions (a) and (d). It also found true the allegation that a principal personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1). The jury further found that a principal personally and intentionally used a firearm, within the meaning of section 12022.53, subdivisions (b) and (e)(1).
All further statutory references are to the Penal Code.
The jury also found true the allegation that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1)(C).) Appellant admitted two prior convictions.
The trial court imposed a sentence of 40 years in state prison. For the principal term, it imposed the high term of 9 years, enhanced by 31 years. The enhancements were calculated as follows: a consecutive 20-year term pursuant to section 12022.53, subdivisions (c) and (e). The court struck the remaining section 12022.53, subdivision (b) and section 12022.5, subdivisions (a) and (d) enhancements pursuant to section 1385 because the enhancement imposed was for the longest term. Appellant also received a consecutive 10-year gang enhancement (§ 186, subd. (b)(1)(c)), plus one year pursuant to section 667.5, subdivision (b).
Appellant argues that there was insufficient evidence to support the gang enhancement and asks us to independently review the trial court's ruling on his motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. He contends that the matter must be remanded for resentencing because the trial court improperly imposed two separate firearm use enhancements for a single offense. We affirm with directions to modify the abstract of judgment.
FACTS
1)Testimony of Law Enforcement
On August 9, 2008, Sheriff's Deputy Salvador Martinez was on patrol near the border of Lynwood and Compton in Los Angeles County. At approximately 9:00 p.m. he responded to an alley bordered by Banning Street to the north and El Segundo Street to the south. Banning Street gang members often "hang out" in the alley, as well as members of the Paragon Varrios gang. Deputy Martinez had received a call that Banning Street gang members were loitering in the alley. In his marked patrol car, he entered the alley from the north. Martinez saw four to five men near the mouth of the alley, on the west side. Another man was located further down in the alley. Deputy Robert Lavoie simultaneously drove into the alley from the opposite direction (south). He was also in uniform and in a marked patrol car.
After Deputy Martinez entered the alley, he stopped his patrol car and stepped out. The men stopped, and Martinez heard two "low-caliber" gunshots, followed immediately by approximately four "high-caliber" gunshots. Martinez then heard Lavoie broadcast on his radio that he was involved in a shooting. After ordering the men onto the ground, Martinez could see Lavoie at the far end of the alley, pointing a gun in a northwest direction. The fifth man, who had been partway down the alley, ran into a trailer park to the west. Additional units arrived and detained the men on the ground.
Deputy Lavoie testified that he had previously arrested gang members in the alley for selling drugs or being in possession of guns. After he drove into the alley on the night of the offense, he saw four individuals running toward him. Three were running together and a fourth was trailing behind. Lavoie could see the faces of the first three men.
As Lavoie was driving into the alley, he turned on his spotlight and drew his weapon. The first three men changed direction and began running west. Lavoie later identified one man as appellant and another as Caballero. The fourth man fled. Appellant, followed by Caballero, scaled a fence and ran into the trailer park. Once inside, both men stopped in the driveway of one of the trailers. The third man froze and remained standing at the fence.
Lavoie stopped his patrol car and began to get out. He saw appellant and Caballero crouched down, to his left. Appellant was wearing a white t-shirt, dark pants and a dark hooded sweatshirt, with the hood down. Caballero was wearing a blue baseball cap, a white shirt and gray shorts. Lavoie heard three gunshots and saw a muzzle-flash come from their direction. He fired three shots from his handgun towards them. Lavoie hit Caballero, who fell to the ground. Appellant moved quickly towards Caballero, picked something up, and ran further into the trailer park. Lavoie again saw appellant's face for approximately four to five seconds before he fled.
We infer from Lavoie's testimony that the men were crouched down on the opposite side of the fence, inside the trailer park, and the gunfire was exchanged through the fence. Lavoie did not describe the type of fence separating the alley from the trailer park. A witness, Salvador Gonzalez, later testified to seeing Caballero and another man jump over a chain-link fence.
Caballero was removed from the scene by paramedics. Appellant was detained in a nearby pallet yard by the special enforcement detail, which included the S.W.A.T. team and K-9 personnel. Lavoie identified appellant at a field show-up. He believed that Caballero was the shooter, because he was positioned the closest to him, but it might instead have been appellant.
Two more deputies arrived at the scene after the shooting. One searched appellant and recovered a semiautomatic handgun magazine that contained five live.22-caliber rounds. Another performed a gunshot residue test at the station which later revealed the presence of gunshot residue on appellant's hand. An expert testified that appellant could have fired a gun, handled a gun, been next to someone who fired a gun, or could have touched a surface with gunshot residue. A gunshot residue test performed on Caballero's hand yielded the same results.
Three expended cartridges from Lavoie's gun were found at the scene. Deputies found a semiautomatic handgun and a magazine loaded with three live rounds underneath a car in the trailer park. A loose live round was found within a few inches of the handgun, and an expended cartridge was found approximately two feet away. A blue baseball cap and a pool of blood were nearby.
DNA was found on the gun. It was compared with DNA collected from appellant and Caballero. A criminalist from the sheriff's department determined that appellant was included as a possible contributor of the DNA on the firearm. Caballero was excluded as a contributor.
2) Witness Testimony
Salvador Gonzalez and his cousin were on their way to a party on the night of the shooting. Gonzalez was a member of the Banning Street gang. The men walked through the alley where seven or eight people had congregated. Appellant and Caballero were among them. Gonzalez had never met appellant, but was introduced to him and shook his hand. After about five minutes, "a lot of cops" came into the alley. Caballero ran, and hopped over a gate and Gonzalez tried to follow. He heard gunshots, looked to the other side of the gate and saw that Caballero had been shot. Gonzalez testified that Caballero belongs to a gang and that rival gang members sometimes came into the alley.
Gonzalez and his cousin were apprehended and transported to the station where they were questioned and released. Gonzalez told a detective that he was running south in the alley, and saw Caballero and another man jump over a chain-link fence. He heard a small caliber gunshot come from the trailer park near the fence and three loud gunshots fired by a deputy who drove into the alley. Gonzalez told the detective that he did not think that Caballero fired the first gunshot because he was climbing over the fence when the shot was fired.
DISCUSSION
Sufficiency of the Evidence to Support Gang Enhancement
Frederick Morse is a gang detective with the sheriff's department. His job includes speaking with other gang professionals and informants weekly to stay current about gang trends and problems within gangs. Prior to working as a detective, he was a gang enforcement deputy. His responsibilities included detaining gang members to investigate crimes. Morse has had "hundreds and hundreds of consensual encounters" in which he has spoken to gang members on the street about problems or rivalries in the different neighborhoods. He has qualified as a gang expert on approximately ten occasions.
Respect is highly valued in gang culture, and members achieve it through acts of violence. Morse testified that this can range from asking someone where they are from to beating them up if they give the wrong answer. Assaults or shootings can be examples of "putting in work" for the gang. Tagging a wall with graffiti, selling drugs or attempted murder are all committed to gain respect for the individual committing the offense and the gang as a whole. A member who puts in work does so to move up within the gang hierarchy.
Morse testified that a gang will claim a territory and defend it if they feel another gang is impinging on their area. They define themselves through a common name, letters, hand signs, and graffiti with gang letters. They will identify themselves individually with gang monikers. Morse became familiar with the Lynwood Varrio Paragon gang in 1997, and has had approximately one hundred contacts with them since that time. They have about 50 members and claim a territory in the City of Lynwood.
Morse has had a similar amount of contacts with the Banning Street gang, which is allied with the Varrio Paragon gang. The Banning Street gang has approximately 50 members and claims the same territory as the Paragons. The alley is shared territory. There is tagging from both gangs in and around the alley, and members of both gangs are generally present there. Being allies means they "hang out" together and commit crimes together. The primary activities of both gangs are the sales of illegal narcotics, illegal possession of firearms, shootings and attempted murders.
It was Morse's opinion that appellant is an associate of both gangs, but primarily a Banning Street associate. He based his conclusion on the fact that he was in the alley, a notorious stronghold for both gangs, with eight other gang members. An associate is a person who is on the verge of joining a gang. The Banning Street gang has three different cliques. The youngsters are known as the "criminals." The intermediate level is "first street" and the older members are the "veteranos." An associate would be someone on his way to entering the criminal clique of Banning Street. Appellant's only tattoo is three dots on his hand or wrist that signify "my crazy life." Morse indicated that gang members do not loiter or conduct illegal activities with people they do not trust as either associates or full-blown gang members.
Morse testified that Edward Caballero is a member of the Lynwood Varrio Paragons and his moniker is Moreno or Menace. A photograph was introduced showing a group of gang members, including Caballero, who was throwing a gang sign for the Paragons. The photograph included a list of gangs that are rivals to the Banning Street and Lynwood Varrio Paragons.
The district attorney posed a hypothetical question. She asked Morse to assume both gangs were hanging out in the alley at night. Someone yelled out "cops" in Spanish. Salvador Gonzalez, a known gang member, saw officers entering the alley from both directions. Caballero and appellant began running south, and Gonzales followed. Appellant hopped over the gate and crouched down on the other side, in the trailer park. Caballero followed him over the gate. Deputy Lavoie pulled into the alley and got out of his car.
Gonzalez was about to jump over the gate when a low-caliber gunshot was heard. Lavoie looked in the direction of the gunshot and saw Caballero and appellant crouched down in the trailer park area. At the time he heard the gunshot, Lavoie saw a muzzle flash from that direction and returned fire. He struck Caballero who fell onto the ground. Appellant reached in the direction of Caballero, took something and fled. He was subsequently apprehended.
Based on these hypothetical facts, it was Morse's opinion that few things would enhance the reputation of both gangs more than shooting at a uniformed deputy. Such an act would embolden the gangs and intimidate the surrounding community by demonstrating that the gangs are not afraid to shoot at the members who are supposed to protect them. The act also benefits the reputations of both gangs amongst their fellow gang members as well as among rival gangs. It is not uncommon for the new member--a "youngster" or "associate"--to have the gun. Shooting at a deputy, rather than simply fleeing, would serve to promote criminal activity.
Section 186.22, subdivision (b)(1) provides for a sentencing enhancement when a person commits a felony "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...." Appellant argues that there was no evidence to support the finding that he acted with the specific intent to further the interests of the Banning Street gang. He asserts that there was no evidence he fired on Lavoie to benefit the gang, or that doing so would instill fear within the community. Appellant attacks the testimony of the gang expert to this effect, claiming it was mere speculation.
Our Supreme Court recently discussed the conflict between state and federal courts concerning proof of the specific intent requirement to support a true finding on a gang enhancement. (People v. Albillar (2010) 51 Cal.4th 47.) In Albillar, the Supreme Court affirmed imposition of a gang enhancement for a rape in concert by family members who were members of the same gang. The court concluded in part that the crime need not be gang-related; and that the specific intent requirement need only be to assist in any criminal conduct by gang members, not to further criminal conduct apart from the charged offense. (Id. at pp. 66-67.) "[I]f 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." (Id. at p. 68.)
The testimony of deputies Martinez and Lavoie, witness Gonzalez and the forensic experts provided ample evidence to support the findings that appellant shot Lavoie while in the territory and presence of members of the Banning Street gang. From this evidence, the jury properly inferred that appellant had the specific intent to "promote, further, or assist criminal conduct" by members of a gang. (§ 186.22, subd. (b)(1).) There is no merit to appellant's argument that the gang expert's testimony was insufficient to establish that shooting an officer would enhance the gang's reputation by instilling fear in the community. Expert opinion that criminal conduct benefited a gang by enhancing its reputation is sufficient to raise the inference that it was committed for the benefit of the gang. (People v. Albillar, supra, 51 Cal.4th at p. 63; People v. Vazquez (2009) 178 Cal.App.4th 347, 354; see also People v. Hill (2011) 191 Cal.App.4th 1104, 1126.) The jury's true finding on the section 186.22, subdivision (b)(1)(C) enhancement is supported by substantial evidence.
Imposition of Sentencing Enhancements
The Supreme Court has established that a 186.22, subdivision (b)(1)(C) gang enhancement constitutes a firearm enhancement. (People v. Rodriguez (2009) 47 Cal.4th 501, 509.) Here, the trial court imposed two firearm enhancements: a 20-year enhancement for personal firearm use (§ 12022.53, subds. (c) & (e)) and a 10-year gang enhancement (§ 186.22, subdivision (b)(1)(C)). This was error because, "[w]hen two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. " (§ 1170.1, subd. (f).) Thus, the trial court was only authorized to impose the greater (section 12022.53) enhancement.
In Rodriguez, the trial court imposed three sentences stemming from three separate assaults. Two firearm enhancements were imposed on each sentence. Under those circumstances, remand was appropriate to allow the trial court to restructure its sentencing choices. (People v. Rodriguez, supra, 47 Cal.4that p. 509.) Contrary to appellant's assertion, remand here is unnecessary. There is no action to be taken by the court, other than the clear mandate of section 1170.1, subdivision (f), that the greater enhancement be imposed. Accordingly, we order the gang enhancement stricken.
Pitchess Motion
On March 6, 2009, the trial court conducted an in camera review of police personnel records pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531. One piece of evidence was disclosed to the defense. On appeal, appellant has requested that we independently review the Pitchess proceedings to determine whether the trial court abused its discretion in withholding certain portions of Deputy Lavoie's personnel records.
We have reviewed the sealed transcript of the in camera hearing and Lavoie's personnel records and conclude that the trial court did not abuse its discretion by refusing to disclose other information produced in response to the discovery motion. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.)
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to strike the section 186.22, subdivision (b)(1)(C) gang enhancement. A certified copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
We concur: GILBERT, P.J., PERREN, J.