Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 08CF2401, Dan McNerney, Judge.
Kenneth H. Nordin, 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, Lilia E. Garcia and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
A jury found defendant Jorge Beliz guilty of robbery, active participation in a criminal street gang, and found the robbery was committed for the benefit of or in association with a criminal street gang and a principal in the robbery used a firearm. On appeal he contends the evidence was insufficient to sustain the gang and firearm enhancements. We affirm.
I
FACTS
We present the facts in the light most favorable to the judgment in accord with established principles of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Additional facts appear where necessary in the discussion below.
Defendant and Ricardo Leal (Leal) were charged in the information with robbery (Pen. Code, § 211 ) and active participation in a criminal street gang (§ 186.22, subd. (a)) on August 15, 2008. The information also alleged a principal in the robbery used a firearm (§ 12022.53, subds. (b), (e)(1)) and the robbery was committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The jury found defendant guilty on each count and found the enhancements true. The court sentenced defendant to two years (low term) on the robbery and imposed a consecutive 10-year enhancement for the firearm use. The court imposed a two-year concurrent term on the gang charge and stayed punishment on the gang enhancement.
All undesignated statutory references are to the Penal Code.
Leal’s trial was severed from defendant’s and Leal is not a party to this appeal.
On August 15, 2008, at about 4:00 p.m., in Santa Ana, Alejandro A. (Alejandro) who was 17 years old at the time of trial in April 2009, and his younger brother Jose were walking their two dogs in Santa Ana with Alejandro’s friend E.S. Alejandro was walking a three-month-old pit bull puppy. Jose was walking a three-month-old white puppy. Alejandro saw a white Mitsubishi Eclipse as they were walking on Third Street. The two occupants of the Eclipse looked at the boys and the dogs as the Eclipse went by.
Alejandro thought everything was “all good” until he saw a male walking quickly toward them. They had stopped because Alejandro’s dog was tired and needed to rest. As that person walked by, defendant, the passenger in the Eclipse, called out “Little Minnie” or “Minnie Street, ” and called the unknown pedestrian a punk. Alejandro thought “Little Minnie” referred to a gang, as he had heard in school.
Defendant contacted Alejandro and asked if the boys were selling the dogs. Alejandro said he thought they were selling one of them and told his brother to call their father to make sure. Their father did not answer the phone call. Defendant asked if he could pet the dogs. Alejandro said he could. Defendant took the leash off Alejandro’s dog and said “Oh, your dog needs some water.” By this time, the Eclipse, with only the driver inside, had pulled up to their location. Alejandro demanded his dog back and defendant got into the Eclipse with the dog. Alejandro tried to punch defendant, who then told the driver in Spanish to shoot Alejandro. Alejandro saw the driver reach to his waist, lift his shirt, and grab the handle of a black gun. Alejandro jumped back from the car. Alejandro, E.S., and Jose were each afraid of being shot. The Eclipse drove away.
Alejandro called the police. The Santa Ana police officer who responded, Adam Aloyian had a gun similar to the one Alejandro saw. Aloyian had a.40-caliber Glock. According to Aloyian, Alejandro said he thought the driver’s gun was a.45-caliber.
Officer Dominic Padilla responded to the location where the Eclipse had been stopped by another officer at around 5:40 that evening in Santa Ana. The driver, Leal, had “Lopers gang” tattooed on his right forearm and is a “highly documented member of the Lopers gang.” The female passenger, Stephanie Beltran, gave the officer her address and when Padilla went there he saw defendant in the front yard playing with a puppy. Padilla retrieved the puppy and advised defendant of his Miranda rights. Defendant eventually said he had been with another male in a vehicle, saw a group of kids walking some dogs, and told the driver to pull over to talk to the kids about the dogs. He said he stole the dog because he loved dogs. Defendant did not name the driver of the vehicle and did not admit getting back into the car after he grabbed the dog.
Miranda v. Arizona (1966) 384 U.S. 436.
Aloyian took Alejandro, Jose and E.S. to the location of the car stop. Alejandro positively identified Leal as the person who had the gun. Aloyian took the boys to where defendant was detained. As soon as Aloyian drove up to the location, the boys started repeatedly shouting, “That’s him, ” identifying defendant.
Officer Brandon Sontag of the Santa Ana Police Department testified as a gang expert. According to Sontag, Lopers is a criminal street gang active in Santa Ana. In August 2008, Lopers had 200 to 300 members. When asked, “does this group have primary activities?” Sontag responded, “The two that I have come in contact with most often in the past years would be the sales of narcotics and weapons violations of various kinds.” Minnie Street is a subset of the Lopers. Little Minnie and Minnie Street are synonymous. Sontag testified defendant was an active participant in Minnie Street. In answer to a hypothetical question parroting the facts in this case, Sontag concluded the robbery was for the benefit of or in association with a criminal street gang.
II
DISCUSSION
Issues and Standard of Review
Defendant contends the gang expert’s testimony did not establish that Minnie Street qualifies as a criminal street gang. Specifically, he argues the evidence did not demonstrate Minnie Street has as one of its primary activities the commission of one or more of the enumerated offenses in section 186.22. If true, the gang enhancement and the firearm use enhancement must both be set aside as each requires proof of the existence of a criminal street gang. (See §§ 186.22, subd. (b)(1), [enhancement for defendant convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang], 12022.53, subds. (a)(4), (b), (e)(1) [enhancement applies if defendant violated § 186.22, subd. (b) and a principal personally used firearm in commission of a robbery].) Defendant argues the firearm use enhancement must also be set aside because the evidence was insufficient to prove a firearm, rather than a replica, a BB gun, or a pellet gun was used in the robbery.
As we stated in In re Alexander L. (2007) 149 Cal.App.4th 605, 610 (Alexander L.): “‘Our role in considering an insufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses [citation], and we review the record in the light most favorable to the judgment [citation], drawing all inferences from the evidence which supports the jury’s verdict. [Citation.]’ (People v. Olguin (1999) 31 Cal.App.4th 1355, 1382.) The standard of review is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” [Citation.]’ (People v. Bolin (1998) 18 Cal.4th 297, 331.) The same standard of review applies to section 186.22 gang [allegations]. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)”
There was Sufficient Evidence of “Primary Activities.”
In Alexander L., we noted that to qualify as a criminal street gang there must be proof: “‘(1) [of] an “ongoing” association of three or more participants, having a “common name or common identifying sign or symbol”; (2) that the group has one of its “primary activities” the commission of one or more specified crimes; and (3) the group’s members either separately or as a group “have engaged in a pattern of criminal gang activity.” [Citation.]’ (People v. Vy (2004) 122 CalApp.4th 1209, 1222.)” (Alexander L., supra, 122 Cal.App.4th at pp. 610-611; see § 186.22, subd. (f).) The first and third elements are not at issue here. Relying upon our decision in Alexander L., defendant contends the gang expert’s testimony regarding the primary activities of Minnie Street - the second element - lacked sufficient foundation, rending the evidence insufficient.
In Alexander L., the only evidence in support of the primary activities element consisted of the gang expert’s testimony that: “‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’re involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotics violations.’” (Alexander L., supra, 149 Cal.App.4th at p. 611.) We found this testimony insufficient not only because the expert failed to directly testify those crimes constituted the gang’s primary activities (id. at p. 612), but also because, based upon that record, we did not know whether the basis of the expert’s “testimony on this point was reliable, because information establishing reliability was never elicited from him at trial.” (Ibid.) As a result, it was “impossible to tell whether his claimed knowledge of the gang’s activities might have been based on highly reliable sources, such as court records of convictions, or entirely unreliable hearsay. [Citation.]” (Ibid., fn. omitted.)
Defendant contends Alexander L. requires the same finding in this case. While the expert in Alexander L. did not directly testify that the crimes he mentioned were the primary activities of the gang in that case (Alexander L. supra, 149 Cal.App.4th at p. 612), here, when Sontag was asked whether the gang has primary activities, he responded he knows of two. “The two that I have come in contact with most often in the past years would be the sale of narcotics and weapons violations of various kinds.” And while the evidence in Alexander L. was lacking because the source of the expert’s opinion was unknown (ibid.), here the question asked the expert to consider his experience investigating cases, “speaking with more experienced officers, ” and “talking with members of Lopers.” We do not consider theses sources unreliable hearsay. In People v. Gardeley (1996) 14 Cal.4th 605, the court found a gang expert’s opinion of the primary activities Family Crip gang sufficient based upon the expert’s conversations with the defendants and other Family Crip members, his investigations of crimes committed by gang members, “as well as information from his colleagues and various law enforcement agencies.” (Id. at p. 620.)
We find Sontag’s testimony sufficient to establish the primary activities of the gang, which, taken together with the other evidence, demonstrates that Minnie Street is a criminal street gang. Consequently, the evidence in support of the gang enhancement (§ 186.22, subd. (b)(1)) and the firearm use the firearm use enhancement (§ 12022.53, subds. (b), (e)(1)), each of which require the existence of a criminal street gang, is not insufficient based upon a lack of evidence of the existence of a criminal street gang. We next consider whether the firearm use enhancement is supported by sufficient evidence the weapon used was a firearm.
The Firearm Use Allegation is Supported by Substantial Evidence.
Section 12022.53, subdivision (b) mandates a 10-year enhancement for “any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm....” Robbery is one of the offenses listed in subdivision (a) of that section. (§ 12022.53, subd. (a)(4).) For purposes of this section, a defendant is deemed to have personally used a firearm if a listed crime is committed for the benefit of or in association with a criminal street gang in violation of section 186.22, subdivision (b) (§ 12022.53, subd. (e)(1)) and “any person who is a principal” in the crime personally used a firearm during the commission of the offense (§ 12022.53, subd. (e)(2).) The menacing display of the handle of a firearm in Leal’s waistband during a robbery qualifies as a use of a firearm. (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1434-1435 (Monjaras); cf. People v. Colligan (1979) 91 Cal.App.3d 846, 849, 851 [use for purpose of § 12022.5].)
Defendant argues the evidence was insufficient to prove a “real firearm” was used, “as opposed to a pellet gun, a BB gun, or a replica.” Alejandro told the police Leal had a “large black handgun” that was like Aloyian’s.40-caliber gun, “but bigger.” Alejandro thought Leal’s gun was a.45-caliber. Jose and E.S. each told Aloyian they saw Leal with a black gun. Although Alejandro testified he did not remember telling the officer Leal’s firearm was larger than the officer’s, Jose testified he did not see a gun, and E.S. testified he did not see a gun but admitted he told the officer he saw one, the jury was entitled to believe the boys told the officer the truth about having seen a gun. (See Evid. Code, § 1235.)
Defendant points out that the police did not find a firearm when they searched the Eclipse, Leal’s bedroom, or the house where defendant was arrested. True enough, but apparently neither did they find a replica firearm, BB gun, or a pellet gun. Had any of these other weapons that do not meet the definition of “firearm” set forth in section 12001 subdivision (b) (see Monjaras, supra, 164 Cal.App.4th at p. 1435) been found, it might be a different matter. But the fact that no weapon, or any object that could have been mistaken for the “large black handgun” similar in appearance to Aloyian’s gun, “but bigger, ” does not make it any less likely that Leal displayed a firearm. As the gang expert testified, it is important to gangs to get rid of a gun that has been used in committing a crime.
Defendant asserts it is “merely possible” that Leal displayed a real firearm and such a possibility is not substantial evidence. The boys told the police they saw a gun. If there is a mere possibility in this matter it is that what the boys saw was, in reality, not a real gun. When Alejandro attempted to punch defendant in an effort to get his dog back, defendant told Leal to shoot Alejandro. Leal reached into his waistband and grabbed the black gun. His action had the desired effect. Alejandro backed away from the car, leaving Leal and defendant free to drive away with Alejandro’s dog. As the Monjaras court noted, “the jury was entitled to take defendant at his word, so to speak, and infer from his conduct that the pistol was a real, loaded firearm....” (Monjaras, supra, 164 Cal.App.4th at p. 1437.) There is no reason to believe the item in Leal’s waistband was anything other than a firearm.
Defendant posits Monjaras is incompatible with due process because the court distinguished the facts in that case from those in People v. Dixon (2007) 153 Cal.App.4th 985 (Dixon), where there had been evidence the weapon was not a real firearm. According to defendant, such a distinction violates due process because it means the defense thus has a burden to introduce evidence of the nonfirearm nature of the object as an affirmative defense. Defendant misinterprets Monjaras. The defendant in Monjaras contended the evidence was insufficient evidence to establish his weapon was a real firearm because the victim testified she could not say for certain the object was not a toy. (Monjaras, supra, 164 Cal.App.4th at p. 1436.) He argued Dixon suggested there was “no evidence in this case ‘about the true nature of a suspected weapon.’” (Id. at p. 1438, fn. 1.) The Monjaras court simply pointed out that Dixon did not support Monjaras’s contention because in Dixon there was evidence BB guns had been used. (Ibid.) Moreover, the appellate court in Dixon did not consider whether the evidence supported a section 12022.53 enhancement. Although Dixon had been charged with that enhancement, it had not been found true. Instead, the court, sitting as the trier of fact, found he used a deadly weapon (§ 12022, subd. (b)) in the commission of his crime. (People v. Dixon, supra, 153 Cal.App.4th at p. 988.) Contrary to defendant’s argument, Monjaras does not stand for the proposition that a defendant must establish the nonfirearm nature of the object as an affirmative defense.
“The fact that an object used by a robber was a ‘firearm’ can be established by direct or circumstantial evidence. [Citations.]” (Monjaras, supra, 164 Cal.App.4th at pp. 1435-1436.) That Leal used a real firearm is supported by direct and circumstantial evidence: Alejandro said it was a gun and Leal and defendant acted as if it was a real gun. Accordingly, we find the true finding on the personal use enhancement is supported by sufficient evidence.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J.IKOLA, J.