Opinion
G053370
09-18-2017
THE PEOPLE, Plaintiff and Respondent, v. ERIK RENE BELLO, Defendant and Appellant.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12CF2382) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed as modified. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Erik Rene Bello appeals from the judgment of conviction entered after a jury found him guilty of assault with a deadly weapon. The jury also found that Bello personally inflicted great bodily injury in the commission of the offense and that he committed the offense for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1). (All further statutory references are to the Penal Code.) Bello contends insufficient evidence supported the jury's true finding as to the gang sentencing enhancement. He also argues, even if sufficient evidence supported that enhancement, the trial court violated section 1170.1, subdivision (g) by failing to stay the three-year term imposed for the personal infliction of great bodily injury sentencing enhancement.
We affirm the judgment with modification. Substantial evidence supported the jury's finding Bello committed the assault with a deadly weapon offense "for the benefit of, at the direction of, or in association with" the Sixth Street criminal street gang, "with the specific intent to promote, further, or assist in any criminal conduct by gang members" within the meaning of section 186.22, subdivision (b)(1). As conceded by the Attorney General in the respondent's brief, section 1170.1, subdivision (g) requires that execution of the three-year term imposed for the personal infliction of great bodily injury sentencing enhancement be stayed. We therefore modify Bello's sentence to reflect that execution of the three-year enhancement term is stayed, and direct the trial court to amend the abstract of judgment accordingly.
FACTS
About 10:30 p.m. on May 28, 2012, Miguel M., Edgar Sandoval, and a third young man referred to in the appellate record as "Looks" were hanging out in front of Sandoval's Santa Ana apartment complex, drinking and smoking marijuana together, when a car repeatedly drove past them. Miguel and Sandoval feared whoever was in that car was "gang banging" given that there was gang activity in that area, which was claimed territory of the Sixth Street criminal street gang. Miguel and Sandoval had in the past belonged to a tagging crew, but were no longer members and were not otherwise affiliated with any gang. Sandoval was concerned that the occupants of the car might mistake him for a gang member and shoot at them.
Anticipating trouble, Sandoval crossed the street and told Miguel and Looks to "get ready." Miguel got on his bike to go talk to a few girls they had seen walking, when the car returned and stopped near Miguel. Bello and another young man got out of the car. One of them said "something to the effect of where the fuck—where you fools from? Don't you know this is my 'hood." Miguel responded, "what the fuck."
One of the young men pushed or kicked Miguel off his bike. Bello stabbed Miguel in the abdomen and the armpit. Sandoval and Looks ran to Miguel but another young man got out of the car and told Sandoval and Looks to "back off;" Sandoval suspected, based on the way the young man was standing, that he had a gun. The young men told Sandoval and Looks to stay quiet and not to say anything, and got into the car and drove away.
Miguel told a police officer shortly after the stabbing that one of the young men who accompanied Bello appeared to act as his back up, appearing to Miguel as though "he was backing up his homeboy." The record is not clear whether Miguel was describing the conduct of the young man who got out of the car at the same time Bello got out of the car, or the conduct of the third young man to get out of the car.
Santa Ana Police Officer Nicholas Lopez testified that Bello was a member of the Sixth Street criminal street gang as of May 2012. He testified that Bello had Sixth Street symbols tattooed on the backs of his hands, his chest, and his thigh. Lopez testified that in the gang world, "[b]ackup is somebody who's going to support you. Maybe in the event you're going to commit a crime or an assault, it's going to be somebody who's going to be there, who's going to render some type of support during that incident." Gang members expect back up from each other, whether in the form of standing behind someone committing an assault, to thereby provide "numbers, showing there's more people here to assist them in that assault," or to look out for police.
The parties stipulated that Sixth Street met the statutory definition of a criminal street gang. --------
Lopez further testified that the instant stabbing was the type of crime that benefited the Sixth Street criminal street gang: "One of the benefits would be the enhanced level of respect. Stabbing is a violent crime. It's done in the neighborhood, it's showing the community there that Sixth Street is in the area, they're committing crimes, violent crimes at that, therefore benefitting their level of respect."
Lopez also testified regarding a hypothetical posed by the prosecutor as follows:
"Q. . . . [H]ypothetically, if you heard testimony from a witness who said prior to this stabbing that the suspect vehicle passed by multiple times in this same area, would you find that to be significant in terms of the intent of the people in that vehicle?
"A. Yes.
"Q. How so?
"A. Well, they're passing by numerous times, it almost would sound as if they were patrolling or posting up. [¶] . . . [¶]
"Q. By [the prosecutor]: Well, hypothetically, if you heard that prior to a hit-up that led to a stabbing, if you heard that those hypothetical suspects were members of the Sixth Street Gang and the hypothetical suspects passed by multiple times prior to the hit-up and the stabbing, would those be important facts to you?
"A. Yes.
"Q. What would that mean, in your opinion, the multiple passes by the victims prior to the hit-up and the stabbing? [¶] . . . [¶]
"The witness: Passing by those several times with the Sixth Street members in the vehicle, in my opinion, based on the hypothetical facts that you're giving me, that is if the Sixth Street members are patrolling their neighborhood or patrolling their territory, determining who is in their area and possibly what are they doing in that area."
PROCEDURAL HISTORY
Bello was charged in an amended information with one count of attempted murder in violation of sections 664 and 187, subdivision (a) (count 1) and one count of aggravated assault in violation of section 245, subdivision (a)(1) (count 2). The amended information alleged count 1 was committed willfully, deliberately, and with premeditation within the meaning of section 664, subdivision (a) and that, pursuant to section 12022, subdivision (b)(1), and within the meaning of section 1192.7, Bello personally used a dangerous and deadly weapon (a knife) in its commission.
The amended information further alleged as to both counts 1 and 2, that: (1) pursuant to section 186.22, subdivision (b)(1), Bello committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by members of that gang; and (2) pursuant to section 12022.7, subdivision (a), and within the meaning of sections 1192.7 and 667.5, Bello personally inflicted great bodily injury on the victim during the commission of those offenses.
The jury found Bello not guilty on count 1 but found him guilty on count 2. The jury found both enhancement allegations as to count 2 true.
The trial court sentenced Bello to a 17-year prison sentence by imposing a term of four years on count 2, a consecutive term of 10 years for the gang enhancement, and a consecutive term of three years for the personal use of a deadly weapon enhancement. Bello appealed.
DISCUSSION
I.
SUBSTANTIAL EVIDENCE SUPPORTED THE TRUE FINDING ON THE
GANG ENHANCEMENT ALLEGATION.
Bello contends insufficient evidence supported the jury's true finding on the gang enhancement "because no evidence was presented that [he] committed the assault with the specific intent that the assault assist any criminal conduct by other gang members." For the reasons we explain, Bello's argument is without merit.
"'In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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.'" (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if "'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The gang enhancement under section 186.22, subdivision (b)(1) punishes the commission of a crime with a particular intent, purpose, or state of mind. Section 186.22, subdivision (b)(1) states, in relevant part: "[A]ny 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 by an additional prison term" Section 186.22, subdivision (b)(1)(C) provides that if the felony to be enhanced is a violent felony as defined by section 667.5, subdivision (c), the person shall be punished by an additional term of 10 years. Section 667.5, subdivision (c)(8) provides that "[a]ny felony in which defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7" is a violent felony.
The enhancement under section 186.22, subdivision (b)(1) has two prongs. The first prong is the defendant's conviction "of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang" (ibid.); that is, the crime was gang-related. (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).) The second prong is the defendant committed the crime "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).)
Bello does not argue insufficient evidence proved the first prong—that he committed the assault "for the benefit of, at the direction of, or in association with" a criminal street gang. Instead, Bello argues in his opening brief, "[t]he question presented here involves the specific intent prong."
As to the second prong, the California Supreme Court concluded in Albillar that section 186.22, subdivision (b)(1) requires the specific intent to promote, further, or assist in any criminal conduct by gang members, including the offense sought to be enhanced. (Albillar, supra, 51 Cal.4th at p. 66.) The Supreme Court stated that the enhancement does not require that the defendant act with specific intent to promote, further, or assist a gang; "the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." (Id. at p. 67, italics omitted.)
Here, substantial evidence shows that in the commission of the assault with a deadly weapon, Bello specifically intended to promote, further, or assist violent criminal conduct of Sixth Street members within the meaning of section 186.22, subdivision (b)(1). Sufficient evidence showed Bello was an active member of the Sixth Street criminal street gang who intended to promote his own gang-related criminal conduct. Sufficient evidence showed Bello, with at least two companions, had been patrolling claimed gang territory at the time they confronted Miguel and, after Miguel's apparently unsatisfactory response to them, Bello stabbed him. Lopez testified that by committing a violent crime, Bello furthered the gang's reputation for committing violent crimes. Under these circumstances, the evidence supported the finding Bello's assault on Miguel was with the specific intent to promote, further, or assist criminal conduct by Sixth Street gang members.
Bello argues insufficient evidence supported the specific intent prong because no evidence showed the other two assailants, who were never identified, were Bello's fellow gang members and therefore insufficient evidence proved Bello's specific intent to promote, further, or assist criminal conduct by Sixth Street gang members. The California Supreme Court, however, has not interpreted the section 186.22, subdivision (b)(1) gang enhancement as requiring the presence of fellow gang members.
In the plurality opinion in People v. Rodriguez (2012) 55 Cal.4th 1125, 1138-1139, Justice Corrigan explained that a "lone gang member" who commits a felony would not be protected from having that felony enhanced by section 186.22, subdivision (b)(1), "which applies to '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 . . . .'"
In his concurring opinion, Justice Baxter agreed that the gang enhancement can apply to a lone perpetrator. He explained: "I recognize, of course, that a seemingly similar reference to gang 'members' appears in both section 186.22(a) and section 186.22(b)(1). However, small but significant differences in grammar and context make clear that the enhancement provision lacks the same multiple-actor condition as the gang offense. [¶] First, section 186.22(b)(1), unlike section 186.22(a), applies where the defendant, even if acting alone, 'specific[ally] inten[ds]' by his felonious action to promote, further, or assist in any criminal conduct by gang members. Section 186.22(b)(1)'s reference to promoting, furthering, or assisting gang members thus merely describes a culpable mental state. By contrast, the gravamen of section 186.22(a) is that the defendant's own criminal conduct must itself directly promote, further, or assist felonious criminal conduct by members of the gang. Thus, section 186.22(a) implies joint criminal action with other gang members—an implication that does not necessarily arise in section 186.22(b)(1). This difference suggests we need not construe gang 'members' in each provision the same way. [¶] The relevant two subdivisions also treat criminal conduct by gang 'members' differently. As noted, section 186.22(a) plainly requires felonious criminal conduct committed in tandem by at least two gang members, one of whom may be the defendant. In contrast, nothing in section 186.22(b)(1) states or implies that the criminal conduct by gang members which the defendant intends to promote, further, or assist is the same criminal conduct underlying the felony conviction subject to enhancement. For this reason too, the direct and specific link between criminal conduct committed by the defendant and that committed by other gang members set forth in the gang offense (§ 186.22(a)) is not present in the gang enhancement (§ 186.22(b)(1))." (Rodriguez, supra, 55 Cal.4th at pp. 1140-1141 (conc. opn. of Baxter, J.).)
In any event, substantial evidence also supported the finding that Bello's unidentified companions were members of the Sixth Street gang given their participation in patrolling Sixth Street's claimed territory with Bello, confronting Miguel with information that he was in their "'hood," and backing up Bello while Bello stabbed Miguel.
II.
THE THREE-YEAR PRISON TERM IMPOSED FOR THE PERSONAL INFLICTION OF GREAT
BODILY INJURY ENHANCEMENT PURSUANT TO SECTION 12022.7, SUBDIVISION (a) MUST
BE STAYED UNDER SECTION 1170.1, SUBDIVISION (g).
Bello argues that under section 1170.1, subdivision (g), the three-year term imposed for the personal infliction of great bodily injury enhancement must be stayed. Section 1170.1, subdivision (g) provides: "When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm."
Here, the trial court imposed a 10-year term for the gang enhancement under section 186.22, subdivision (b)(1) and also a three-year term for the enhancement for personally inflicting great bodily injury on Miguel, under section 12022.7, subdivision (a), for the same offense. In the respondent's brief, citing People v. Gonzalez (2008) 43 Cal.4th 1118, the Attorney General concedes: "Appellant's underlying offense—assault with a deadly weapon—only qualifies as a violent felony because it involved the infliction of great bodily injury on the victim [citation]. A trial court may not impose both a great-bodily-injury enhancement [citation] and a gang enhancement predicated on the infliction of great bodily injury [citations] because both enhancement qualify as great-bodily-injury enhancements within the meaning of section 1170.1, subdivision (g). [Citation.] [¶] The proper remedy is to stay appellant's three-year term for the great-bodily-injury enhancement."
The Attorney General further states, "To comply with section 1170.1, subdivision (g), the trial court should have imposed and executed the 10-year term for the gang enhancement and imposed and stayed the 3-year term for the great-bodily-injury enhancement. Because the only action for the trial court to take is to stay appellant's sentence for the great bodily-injury-enhancement, remand is unnecessary. This Court should correct the error and direct the clerk of the superior court to amend the abstract of judgment to reflect the modification to appellant's sentence."
In his reply brief, Bello agrees this court should correct the error and stay his three-year sentence enhancement imposed pursuant to section 12022.7, subdivision (a). We agree and modify Bello's sentence to stay execution of the three-year sentence enhancement.
DISPOSITION
Execution of the three-year enhancement imposed under section 12022.7, subdivision (a), is stayed. We direct the trial court to amend the abstract of judgment to reflect this modification, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
FYBEL, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.