Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF135853. Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
Rod Pacheco, District Attorney, and Kelli Catlett, Deputy District Attorney, for Plaintiff and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant Alex William Baltierra.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Respondent Richard Hernandez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Appellant.
OPINON
MILLER, J.
A jury convicted defendant Alex William Baltierra of robbery (count 1-Pen. Code, § 211) and active participation in a criminal street gang (count 2-§ 186.22, subd. (a)). The jury also found true an allegation that Baltierra personally used a firearm in his commission of the count 1 offense (§ 12022.53, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
The jury found co defendant Richard Hernandez guilty of robbery (count 1-Pen. Code, § 211) and recklessly evading a police officer (Count 3-Veh. Code, § 2800.2). The jury hung on additional counts and allegations against both Baltierra and Hernandez. The trial court declared a mistrial as to the remaining counts and allegations and then dismissed them pursuant to Penal Code section 1385.
Baltierra appeals, contending that insufficient evidence supports his conviction in count 2 in that the jury’s inherent determinations that Cuatro Flats was a criminal street gang, and that he was an active participant in it, are not supported by substantial evidence. The People appeal, contending that the trial court abused its discretion in dismissing the hung counts and allegations and, contrary to the statutory requirement, failed to place the reasons for its dismissal in the minutes. We affirm the judgment but remand the matter so that the trial court may place the reasons for its dismissals in the minutes.
FACTUAL AND PROCEDURAL HISTORY
Around midnight on April 4, 2007, the victim was standing in the street outside of his home talking with two neighbors. A car full of people drove by, stopped, and then reversed. At least two females and two males were inside the vehicle. Hernandez, the driver, asked if they had any drugs; they replied that they did not. Hernandez drove off, but stopped again. Baltierra exited the vehicle and approached the victim. Baltierra pointed a gun at the victim, cocked it, and told the victim to give him his watch and wallet. The victim did so. The victim dropped his jacket and ran into his home. Baltierra took the jacket and ran off.
Deputy David Grahl was on patrol in the area that evening when he received a dispatch to be on the lookout for a four-door sedan with four to five passengers, which had been involved in a robbery. Soon thereafter he observed a vehicle matching that description; the car had four individuals inside. He initiated a traffic stop by turning on his overhead lights. The vehicle failed to stop; it sped up and ran through an intersection without stopping. The deputy activated his sirens. The vehicle accelerated to between 75 and 80 miles an hour and ran an additional stop sign. Eventually the vehicle collided with some railroad ties. Hernandez took off on foot. The deputy pursued, caught, and arrested Hernandez.
Ashley Arzeta and Stephanie Arzola were identified as the other passengers of the car. In an interview with Arzola, she referred to and identified Hernandez as “Caveman” and Baltierra as “Droopy.” She knew them from the Cuatro Flats gang. While in the car, Arzola saw a gun in Baltierra’s lap. After they drove past the victim, Baltierra told Hernandez to stop so that he could rob him. They drove off after Baltierra got out of the car, but later returned to pick him up. Baltierra had a watch and a wallet when he reentered the car. Police recovered the victim’s jacket from the vehicle.
DISCUSSION
A. SUBSTANTIAL EVIDENCE SUPPORTS BALTIERRA’S CONVICTION IN COUNT 2
“Where there is a claim of insufficient evidence, ‘we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.] ‘Unless it is clearly shown that “on no hypothesis whatever is there sufficient substantial evidence to support the verdict” the conviction will not be reversed. [Citation.]’ [Citation.] We apply the same standard to convictions based largely on circumstantial evidence. [Citation.]” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329 (Martinez).)
“Under section 186.22[, subd.] (a), to be convicted of street terrorism a person must ‘actively participate[] in a[] criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and... willfully promote[], further[], or assist[] in any felonious criminal conduct by members of that gang....’ ‘[A] person “actively participates in any criminal street gang, ” within the meaning of section 186.22[, subd.] (a), by ‘involvement with a criminal street gang that is more than nominal or passive.” [Citation.]’ [Citation.]” (Martinez, supra, 158 Cal.App.4th at p. 1329.)
1. CRIMINAL STREET GANG
“A criminal street gang is defined as ‘any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of [robbery, assault with a deadly weapon, and numerous other enumerated felonies], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.’ (§ 186.22, subds. (f), (e)(1), (2).)” (Martinez, supra, 158 Cal.App.4th at p. 1329.)
Substantial evidence supported the jury’s inherent determination that Cuatro Flats was a criminal street gang within the meaning of the statute. Deputy Raul Armendariz testified that Cuatro Flats had operated in the areas of Glen Avon and Mira Loma for the preceding 10 years. It had over 50 members in that area alone. Its common signs and symbols included “C.F. 13, ” “XIII, ” “Cuatro Flats, ” and “4F.” Flats was the area where the gang originated in Boyle Heights, Los Angeles; “13” signified its affiliation with the Mexican Mafia. Cuatro Flats also used the symbol of the Dodgers baseball team because of its Los Angeles origin. It had a subgroup or clique in Riverside known as the Night Owls or Tecolotes. Its primary purpose was to commit crimes; it had specifically been involved in crimes ranging from assaults with deadly weapons, to attempted murders, to murders, to the sale and possession of drugs and guns. Cuatro Flats continued to commit those types of crimes on a consistent and repeated basis.
Deputy Armendariz further testified that Cuatro Flats had conducted a statutorily qualifying pattern of criminal activity. On, July 4, 2004, Cuatro Flats member Alberto Rivera committed a murder for which he was awaiting trial. In August 2004, Cuatro Flats member Jacob Nauta was convicted of possession of a firearm he used to commit an assault, and a corresponding gang enhancement was found true. Cuatro Flats member Alex Ray Dixon was convicted of assault with a deadly weapon for an incident occurring on March 13, 2006, in which he fired on an occupied vehicle. A corresponding gang enhancement was also found true. In Deputy Armendariz’s opinion, Cuatro Flats qualified as a gang as defined by statute. Thus, substantial evidence supported the jury’s determination that Cuatro Flats was a criminal street gang.
Baltierra complains on appeal that the number of crimes committed by Cuatro Flats adduced at trial was minimal and lacked specificity as to which members committed those crimes and when. First, we disagree with Baltierra’s contention that Deputy Armendariz only testified that Cuatro Flats’s members had only committed one murder, one assault with a firearm, and one assault with a deadly weapon. While Deputy Armendariz only testified as to those crimes as committed by Cuatro Flats’s members in establishment of its pattern of criminal activity, he testified in establishment of its primary activities that Cuatro Flats’s members had committed numerous crimes “[r]anging from assaults with deadly weapons to attempt[ed] murders to murders to the sale and possession of drugs and guns.” He testified that Cuatro Flats’s members consistently and repeatedly committed such crimes and that they continued to do so, even as recently as three weeks prior to his testimony. Such testimony necessarily includes more than one of each of the enumerated offenses.
Second, defendant’s trial counsel below acquiesced in the court’s decision to limit the number and severity of crimes adduced by the People as committed by Cuatro Flats. This was in response to defendant Hernandez’ motion contending that repeated references to murders and homicides would be more prejudicial than probative. Third, defendant fails to identify any legal authority for his proposition that the People must adduce evidence of more than three specific crimes by specific gang members to satisfy the statute’s primary activity prong. Nonetheless, Deputy Armendariz established that Cuatro Flats’s members had been involved in substantially more than three offenses. Moreover, the jury could consider the current crime in determining Cuatro Flats’s primary activities. (People v. Duran (2002) 97 Cal.App.4th 1448, 1465.) Finally, as an officer assigned to the gang unit in Cuatro Flats’s area, with over 160 hours of yearly gang training for each of the two and a half years he had worked in the unit, contacts with gang members on a daily basis, personal discussions with his previous partner who had substantial contacts with Cuatro Flats’s members, review of contacts made by other officers including field interrogation cards, and personal contacts himself with at least three members of Cuatro Flats, Deputy Armendariz established sufficient foundation for his testimony as to Cuatro Flats’s primary activities.
2. ACTIVE PARTICIPANT
“Active participation is defined as ‘involvement with a criminal street gang that is more than nominal or passive.’ [Citation.] It does not require that ‘a person devot[e] “all... or a substantial part of his time and efforts’ to the gang. [Citation.]’ [Citation.]” (Martinez, supra, 158 Cal.App.4th at p. 1331.)
In Martinez, the court found sufficient evidence that the defendant actively participated in the King Kobras gang, as follows: “[An expert] testified he believed defendant was an active member of the King Kobras. He based this on a review of booking photos of defendant that showed he had a VKKR tattoo over his eyebrow and a KK tattoo on the back of his head, which could be seen because he had a shaved head. He also spoke with a detective who had interviewed defendant after his arrest and reported that defendant said he had grown up in East Los Angeles, admitted being a member of King Kobras, and gave a gang moniker. He also relied on the crime defendant committed, one of the gang’s primary activities, and that he did it in association with another gang member....” (Martinez, supra, 158 Cal.App.4th at p. 1331.)
Similarly, here the prosecution adduced sufficient evidence to support Baltierra’s active participation in Cuatro Flats. Deputy David Thomas testified that he was a former Los Angeles City Housing Authority Police Officer for 16 and a half years working in Los Angeles. In his time working on the Southeast side, he came across the gang Cuatro Flats in the Aliso-Pico housing development; he became familiar with the gang’s tattoos, signs and symbols. Baltierra was someone he encountered both in Los Angeles and Riverside. On January 12, 2008, he contacted Baltierra in Sun City, Riverside County. Baltierra had a large tattoo reading “C.F.” on the back of his head. He asked Baltierra what “C.F.” stood for; Baltierra replied that he was a member of the gang Cuatro Flats.
Deputy Armendariz testified that Baltierra had a tattoo reading “C4F” on the back of his head that was visible in his booking photograph, one reading “NLS” for Night Owls on his right bicep, “Four” spelled out on his right hand knuckles, and “Flat” with a Dodger symbol on his left hand. On January 13, 2008, defendant disclosed to a booking deputy that he was a member of Cuatro Flats. On February 19, 2008, Baltierra admitted to membership in Cuatro Flats with a moniker of “Drowsy, ” claiming Los Angeles as his area. Baltierra associated with Alex Ray Dixon, the Cuatro Flats member who had been convicted of assault with a deadly weapon with a corresponding gang enhancement. Arzola, herself an associate of the gang, told an interviewing officer that she knew defendant from the Cuatro Flats gang. Defendant’s commission of the current crimes was in territory claimed by Cuatro Flats, involved one of the gang’s primary activities, and was conducted in association with Cuatro Flats associates. Thus, it was enough that defendant decorated his body with gang symbols, socialized with gang members and associates, admitted to membership, had a gang moniker, and engaged in characteristic gang activity. This was sufficient evidence that he was an active, rather than passive, participant in the gang.
Without making any finding, we note that evidence was adduced at trial that Hernandez was at least an associate, if not a full-fledged member of Cuatro Flats. Likewise, Arzola had admitted to being an associate of the gang.
B. SECTION 1385 DISMISSAL
The People contend that the court abused its discretion in dismissing the remaining counts and enhancements. They also maintain that the dismissal is void because the court failed to place it reasons in the minutes.
After the verdicts were announced, the court inquired into the relative breakdown of the jurors in each of the hung counts and enhancements. The foreperson informed the court that the jury had split 11 to 1 in favor of a conviction of Hernandez in count 2 (active gang participation), 6 to 5 to 1 for a “not true” finding on the allegation against Hernandez that a principal had personally used a firearm on the robbery conviction, 7 to 5 for a not true finding as to the gang enhancement with respect to Hernandez’s conviction on the robbery, 8 to 4 for a true finding as to the gang enhancement with respect to Baltierra’s robbery conviction, and 7 to 5 for a not true finding on the gang enhancement on Hernandez’s conviction for evading. The court declared a mistrial as to the remaining counts and allegations.
The People contended that a dismissal of those counts and allegations would not be in the interest of justice. The court replied, “[t]he only one you had obviously a real shot at in terms of the count with the jury was Count 2 as to Mr. Hernandez.” The court concluded, “It seems to me that the-you’ve gotten your convictions on the [section] 211. You’ve gotten your convictions on the use of the weapon. You’ve gotten your conviction on the fleeing from the scene. You do have your gang-related conviction in hand as to Mr. Baltierra. And I certainly see where the jury was fairly equally split on the issues regarding the gang involvement on the case because there was no-outside of expert testimony, there was no strong testimony that this was gang-related. [¶] [U]nder the circumstances, I’m going to exercise my authority under [section] 1385 of the Penal Code and dismiss those counts and allegations.”
At sentencing, counsel for Hernandez requested the court further elucidate its reasons for the section 1385 dismissals of the gang counts and enhancements against Hernandez. The court replied, “Let’s be clear. There was no other evidence other than... Mr. Baltierra’s tattoo and so forth, but there was no other evidence of gang involvement with this incident, and it was clearly a spur of the moment act.” As to Baltierra, the court noted, “The People have their pound of flesh. They got 13 years State prison. That’s plenty, so to speak, as to him.” It concluded that it would not be in the interest of justice to retry the case on the gang counts and enhancements.
The minute order dated December 9, 2008, with respect to Hernandez, reads, “Court orders enhancement(s) D2-12022.53(b) PC VF-186.22(B) PC in Count 001 stricken. [¶] Count(s) 002 dismissed in the interest of justice. (1385 PC) [¶] Court orders enhancement(s) VF-183.22(B) PC in Count 003 stricken. [¶]... Enhancements dismissed pursuant to 1385 PC on Court’s own motion as stated on the record. [¶] People object to dismissal.” As to Baltierra, the minute order reads, “Court orders enhancement(s) VF-186.22(B) PC in Count 001 stricken. [¶] Enhancement dismissed pursuant to 1385 PC on Court’s own motion as stated on the record. [¶] People object to dismissal.”
The trial court has broad discretion to dismiss charges in the furtherance of justice under section 1385 before, during, or after trial. (§ 1385, subd. (a); People v. Orin (1975) 13 Cal.3d 937, 945.) However, the statute requires the trial court to enter in the minutes its reasons for doing so. (§ 1385, subd. (a).) Courts have consistently held that the requirement of a statement of reasons is mandatory, and in the absence of such a statement, the order may not stand. (People v. Bonnetta (2009) 46 Cal.4th 143, 149.) It is not sufficient that such reasons may be gleaned from the reporter’s transcript. (Ibid.)
As one court has explained: “Section 1385 requires the reasons for dismissal be set forth in the minutes. Oral statements are not the same as court minutes. Minutes and oral pronouncements of the court, even if they are reduced to writing by the reporter, are different things. If the reasons are not set forth in the minutes, the order dismissing may not be considered a dismissal under section 1385. If valid reasons are expressed in the reporter’s transcript but do not appear in the minutes, the mandatory requirements have not been met. [Citation.] Moreover, a specification of reasons is insufficient when it is couched in conclusory language and fails to set out the factual basis for the conclusions reached. [Citation.] Failure to state the reasons in the minutes renders a dismissal under section 1385 invalid. [Citation.]” (People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 135-136.)
The People and Baltierra request this court examine the merits of the underlying reasons for the dismissal, although they appear to disagree both as to what those reasons were and whether they were a valid basis for dismissal. Hernandez asserts the dismissal was based on legal insufficiency of the evidence rendering the People’s appeal invalid. The People contend the dismissal was based on invalid considerations, such as the trial court’s view that another trial would unduly burden judicial resources.
In Bonnetta, the California Supreme Court held that when an order of dismissal is invalid, “the matter must be remanded at least for the purpose of allowing the trial court to correct the defect by setting forth its reasons in a written order entered upon the minutes. Alternatively, on remand the trial court may, but need not, revisit its earlier decision, as on reflection it might determine its reasoning was flawed or incomplete. Judicial economy is furthered by allowing the trial court to correct what, upon reconsideration and reflection, it perceives to have been an unwarranted dismissal, or to consider if a dismissal should be ordered for some new or different reason.” (People v. Bonnetta, supra, 46 Cal.4th at p. 153.) We will therefore follow this directive and remand the matter for the trial court to state in the minutes the reasons for dismissal or to reconsider its earlier decision.
DISPOSITION
The judgment on the section 1385 dismissals is reversed. The trial court is directed to set forth in a written minute order its reasons for the section 1385 dismissals. Alternatively, the trial court may, but need not, revisit its earlier decision, and may correct what it might perceive to have been an unwarranted dismissal, or may consider
if a dismissal should be ordered for some new or different reason. The judgment is otherwise affirmed.
We concur: HOLLENHORST Acting P. J., RICHLI, J.