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People v. Ayala

Court of Appeal of California
Sep 4, 2008
No. B200360 (Cal. Ct. App. Sep. 4, 2008)

Opinion

B200360

9-4-2008

THE PEOPLE, Plaintiff and Respondent, v. GEORGE L. AYALA, Defendant and Appellant.

Christine C. Shaver, 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, Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published


George L. Ayala (defendant) appeals from the judgment entered following a jury trial resulting in his convictions of carjacking with a finding that a principal used a firearm to commit the offense (Pen. Code, §§ 215, 12022.53, subds. (b) & (e)(1); count 2) and vandalism, in which the damage inflicted exceeded a value of $400 (§ 594, subd. (a); count 7), each with a finding the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)). In bifurcated proceedings, defendant admitted that he had a prior juvenile adjudication of robbery as alleged pursuant to the "Three Strikes" law. (§§ 667, 1170.12.) At sentencing, the trial court granted a defense motion to strike the prior adjudication of robbery pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, but it denied the request to also strike the finding of the gang enhancement pursuant to section 186.22, subdivision (g). The trial court sentenced defendant to prison for a term of life with a minimum term of 15 years.

All further statutory references are to the Penal Code unless otherwise indicated.

Defendant was tried in a joint trial with codefendant Osbaldo S. Velasquez (Velasquez). Velasquez was convicted of carjacking (§ 215; count 2), second degree robbery (§ 211; count 3), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count 4), and assault with a firearm (§ 245, subd. (a)(3); count 5). In counts 2, 3, and 4, the jury made findings of the personal use of a firearm. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) In counts 2 through 5, the jury made findings that the offenses were committed for the benefit of a criminal street gang. (§ 186.22, subds. (b)(1)(C) & (b)(4).) The trial court sentenced Velasquez to state prison for an indeterminate term of life with a minimum term of 15 years, enhanced by a consecutive term of 10 years for the use of a firearm. The judgment was affirmed in People v. Osbaldo Velasquez, No. B198504, an unpublished opinion filed on February 5, 2007.

Defendant contends that the trial court abused its discretion in that it failed to exercise the discretion contemplated by section 186.22, subdivision (g).

We affirm the judgment.

FACTS

I. The Trial Evidence

The trial evidence disclosed that between 10:00 and 10:30 p.m. on March 3, 2006, 18-year-old D.Z. was washing his black 1990 Nissan Maxima behind an apartment complex on Vanowen Street in Los Angeles. He and his family were visiting a friend at that location. The apartment building was located in the territory claimed by the Haskell Street Locos gang. D.Z. did not live in the area nor was he gang-affiliated.

While D.Z. was bent over cleaning a wheel, Velasquez and defendant walked up the driveway. Defendant spray painted "Valerio" and other Valerio Street gang graffiti on the apartment complexs dumpster and fence. At the same time, Velasquez rigorously questioned D.Z. about his gang affiliation and accused him of Haskell Street membership, which D.Z. denied. Velasquez accused D.Z. of assaulting a fellow gang member, wanted to know whether D.Z. had money, and reached for D.Z.s pocket. When D.Z. resisted, Velasquez punched D.Z. in the face, and the two started fighting. D.Z. knocked Velasquez to the ground, and defendant walked over and shoved D.Z.

Velasquez got up and put a nine-millimeter handgun to D.Z.s temple. Velasquez punched D.Z. again. At gunpoint, Velasquez stole D.Z.s wallet and D.Z.s two cellular telephones. Velasquez asked for the keys to D.Z.s Maxima, and defendant found them in the Maximas ignition. At gunpoint, threatening to kill D.Z., Velasquez ordered D.Z. into a nearby laundry room. Defendant and Velasquez drove off in the Maxima.

D.Z.s mother immediately telephoned 911. At approximately 10:40 p.m., two Los Angeles police officers drove by the Maxima, which defendant was driving and had pulled to the curb on Saticoy Street. At the same time, the officers heard the police broadcast following the mothers 911 call to the police. Defendant drove off, and the officers pursued the Maxima to Valerio Street. Defendant drove too fast and tried to make a turn, and the Maxima jumped the curb. Velasquez and defendant were arrested. D.Z.s wallet was inside the Maxima, and Velasquez had D.Z.s cellular telephones in one of his pants pockets.

A gang officer testified about relevant gang culture and mores on the issue of the alleged gang enhancement. The officer testified that the Valerio Street gang was a criminal street gang that employed distinctive signs and symbols and that two of its members had recently been convicted of the criminal offenses enumerated in section 186.22. The gang officer opined that the charged criminal conduct was committed for the benefit of the gang.

Velasquez did not testify.

Defendant, whose gang moniker was "Pelon," testified that he and Velasquez, a fellow Valerio Street criminal gang member, went to Vanowen Street to meet a girl named Claudia. When they got there, defendant, using blue and red spray paint, "tagg[ed]" along Vanowen Street. Claudia never met them at the location as planned. Defendant claimed that he became panicky because he was afraid that he and Velasquez would be discovered in rival Haskell Street Locos territory. Defendant acknowledged that crossing out rival gang graffiti, as he did, could result in gang retaliation.

Defendant said that because he was afraid, he started looking inside parked cars to find a way to leave the neighborhood. He admitted that he stole the Maxima. He explained that he found the black Maxima in a carport area. The Maximas keys were in the ignition, and he drove off in the Maxima.

Defendant testified that Velasquez only reluctantly accompanied him, and later, on Saticoy Street, Velasquez wanted him to abandon the Maxima. Defendant claimed that he had never seen D.Z. before; D.Z. was nowhere to be seen when he stole the Maxima; and neither he nor Velasquez had a gun. Defendant also denied knowing that he was being followed by the police until he heard the police units siren. He admitted that the tagging along Vanowen Street was for the benefit of his gang.

In rebuttal, the detective who conducted the postarrest interview of defendant testified that defendant had asked her what constituted carjacking, and she told him. Defendant then replied that he was "good for a grand theft auto." Defendant also told her that he was the person who had sprayed the Valerio graffiti behind the apartment complex.

II. The Sentencing Proceedings

At sentencing, the trial court read and considered the probation report and a defense sentencing memorandum. The probation report disclosed that defendant was a gang member and that he had a sustained petition from juvenile court with a finding of robbery that had resulted in a commitment to short-term camp from 2000. That year, the juvenile court also sustained another petition alleging vandalism. Defendant had been working for five years. The probation officer recommended a state prison term. The probation officer did not interview defendant. He noted that during the current offense, Velasquez, not defendant, had wielded the firearm, but defendant was well aware that Velasquez had the gun and might use it. The victim reported that Velasquezs conduct terrified him: Velasquez had held the gun to the victims head. When Velasquez had forced the victim to the laundry room, the victim had believed that Velasquez intended to fatally shoot him. Also, during the police pursuit, defendant had a car accident in the Maxima, damaging it beyond repair. The victim lost the value of the Maxima, $3,000, and he had no cash with which to purchase new transportation for work.

The defense sentencing memorandum urged the trial court to grant defendant leniency and to decline to impose a life term. Trial counsel asserted that prior to trial, defendant had been willing to enter into a plea bargain for a 17-year state prison term. However, the plea bargain offer required pleas from both defendants, and Velasquez unwisely demanded a trial, thus preventing defendant from obtaining a more favorable prison term. Defendants prior robbery adjudication involved the taking a skateboard from other minors with the threat of a beating. During that incident, defendant had cooperated with the police after they were called, and defendant had returned the skateboard, which he had at home. Defendant had a three-year-old son, and he was participating in rearing the child. Defendant had moved from the Valerio neighborhood, but unfortunately had returned with his friend Velasquez on this one isolated occasion. Defendants involvement with the gang had been marginal. He had only minimal contacts with the police, and he was not a documented gang member. He had earned a G.E.D. and had worked for one or two furniture companies.

This court had defendants superior court file transmitted to the court. (Cal. Rules of Court, rules 8.155 & 8.340.) The court takes judicial notice of the defense sentencing memorandum, filed June 25, 2007, which is located within the Los Angeles County Superior Court file entitled, People v. George Ayala, No. LA051784. (Evid. Code, §§ 452, 459.) We sent the parties notice of our intention to take judicial notice of the defense sentencing memorandum.

At sentencing, the trial court exercised its discretion and struck the finding of the prior adjudication of robbery pursuant to Romero, thus electing to sentence defendant pursuant to section 1170.1, instead of pursuant to the Three Strikes law. The trial court pointed out that the prior robbery involved the use of threats to take a skateboard, defendant was age 16, and for that offense, he was committed to camp, not to the California Youth Authority. Also during the current carjacking, defendant was not the perpetrator in possession of the firearm, and thus, he was less culpable than Velasquez. If the trial court imposed the sentence required by the strike, the term would be 30 years to life. Even without a strike, defendant would be serving a substantial sentence. In the interests of proportionality, the trial court did not want to impose a longer sentence on defendant than it had imposed on Velasquez.

In addition to requesting leniency pursuant to Romero, trial counsel asked the trial court to exercise its discretion to strike the additional punishment required by the gang enhancement. Trial counsel argued that the imposition of the term for the carjacking alone, enhanced by the use of a firearm, would serve as a deterrent to any future violations of law. If defendant committed a new offense, that offense would require sentencing pursuant to the Three Strikes law. Trial counsel argued that there was no evidence that defendant was a gang member, except by his own admission, and the police officer had acknowledged at the preliminary hearing that defendant was not a documented gang member. Also, the police officer had testified that in his opinion, defendant simply wanted to be a gang member.

Defendants mother and sister asked the trial court to grant defendant leniency because defendant had a son. Defendants sister told the trial court that she guessed that at the time defendant committed this offense, defendant was not thinking clearly. She hoped that he had "learned his lesson," and that the trial court would give defendant another chance. The sister said that his family loved him.

Defendants uncle claimed that defendant was a "good kid" who deserved a second chance. The uncle said that defendant had been living with him and that he had had no problems with defendant. Defendants girlfriend said that defendant had been her boyfriend for four years. He had been doing well for the last two years. He was spending a lot of time with his son and watching the son for her while she went to school and worked. The son would miss his dad, and she did not want her son to grow up without a father, as defendant had.

Trial counsel argued that defendant had engaged in one, single period of aberrant behavior and that Velasquez had caused the misconduct. Not only because Velasquez encouraged the commission of the carjacking, but because Velasquez had deprived defendant of the offer of a 17-year prison term. Trial counsel urged that defendant did not lie during the trial, and that while defendant had had some problems in the past, he still had the potential to live an honest and productive life.

The trial court acknowledged that it had read the character letters submitted on defendants behalf that were attached to the sentencing memorandum.

The trial court expressed appreciation for the familys kind remarks and noted that defendant must appreciate his familys support. The trial court observed: "It actually pains me very deeply to impose these very long sentences on very young men, particularly you with a young son and family members and friends who obviously love you. I have to consider this is a crime of senseless violence on an innocent victim. I feel very deeply for your family, I feel bad imposing this sentence on you, but I feel most sad for the victim. He was terrorized during this incident. His car was wrecked. You led the police on a very high speed pursuit, the vehicle was crashed, and but for the grace of God, no one was seriously injured or killed. This is not a second chance, this is a third chance. Youve already been convicted of a robbery and I am giving you the lowest possible sentence that I can give without striking an allegation which I cannot in good conscience strike. I cannot justify the striking of a gang allegation as I do believe this was a gang-related crime as the jury so found. You were not an innocent bystander, but you were an active participant in this very violent felony."

The trial court then commenced sentencing, mindful that it was not permitted to impose a term for both the section 12022.53 enhancement, as well as the gang enhancement. Nor would the trial court be inclined to do so even if the law permitted the additional term. A term of life with a minimum term of 15 years for the carjacking and a concurrent determinate term of five years for the vandalism offense was imposed.

DISCUSSION

Defendant contends that the trial court failed to exercise its discretion in determining whether to strike the gang finding pursuant to section 186.22, subdivision (g).

We disagree.

Section 186.22 is part of the California Street Terrorism Enforcement and Prevention Act enacted in 1988. (§ 186.20.) The intent of the act is "to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs." (§ 186.21; People v. Godinez (1993) 17 Cal.App.4th 1363, 1367, disapproved on other grounds in People v. Russo (2001) 25 Cal.4th 1124, 1134.) Section 186.22, subdivision (g), provides as follows: "Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition."

"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, `"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." [Citations.] Second, a `"decision will not be reversed merely because reasonable people might disagree. `An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal. 4th 367, 376-377.)

Defendant argues that the trial court improperly refused to exercise its discretion to strike the gang enhancement because considering the totality of defendants circumstances, granting further leniency was required. Defendant urges that (1) he was not so involved in the gang as to warrant the imposition of the enhanced punishment; (2) there was no prior documentation of gang affiliation, except defendants admission that he belonged to the gang, and a police officer testified to his opinion that defendant merely wanted to be a gang member; (3) defendants criminal history was minimal; (4) defendant did not play a leadership role in committing the offenses, and defendant became involved only when the victim pushed Velasquez to the ground; (5) defendant was 23 years old and had obtained his G.E.D. from adult school; (6) he was employed at Mission Burrito; (7) there was evidence that he was beginning to lead a productive life; (8) he had a son whom he loved and for whom he provided care; and (9) his friends and family believed that he had a good character. His overarching complaint is that considering the circumstances, the imposition of the 15-year-to-life term "was overly severe" and "amount[ed] to a miscarriage of justice."

The trial courts refusal to strike the gang enhancement reveals a reasoned judgment that took into account defendants prior record and the serious circumstances of the carjacking. Appellant admitted that he was a gang member. His commitment to the gang is apparent from his participation in this very serious offense. He did not just go along while Velasquez committed the carjacking. He assisted Velasquez when Velasquez lost control of the victim. He was the perpetrator who spotted the victims car keys in the Maxima. He was the person who drove the carjacked Maxima away from the crime scene and caused the Maxima to be damaged beyond repair. Defendant was present when Velasquez threatened the victim with death and made no protest. The victim was now without transportation to go to work.

The trial courts exercise of discretion was well in line with the legislative intent. (See In re Alberto R. (1991) 235 Cal.App.3d 1309, 1318.) The gravamen of the gang enhancement is the commission of the offense to benefit the gang; a finding of gang membership is unnecessary to a finding of the enhancement. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1332-1333.) The crime was gang-motivated, defendant had a prior robbery adjudication, and the trial court had already granted him leniency by sentencing him without resort to the Three Strikes sentencing scheme. Accordingly, the trial court acted well within its discretion when it imposed the additional punishment for the gang enhancement.

DISPOSITION

The judgment is affirmed.

We concur:

BOREN, P. J.

DOI TODD, J.


Summaries of

People v. Ayala

Court of Appeal of California
Sep 4, 2008
No. B200360 (Cal. Ct. App. Sep. 4, 2008)
Case details for

People v. Ayala

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GEORGE L. AYALA, Defendant and…

Court:Court of Appeal of California

Date published: Sep 4, 2008

Citations

No. B200360 (Cal. Ct. App. Sep. 4, 2008)