Opinion
B301727
05-27-2021
THE PEOPLE, Plaintiff and Respondent, v. BOBBY BRAGGS, Defendant and Appellant.
Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, William H. Shin and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA470870) APPEAL from a judgment of the Superior Court of Los Angeles County, George G. Lomeli, Judge. Affirmed. Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, William H. Shin and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
The jury found defendant and appellant Bobby Braggs guilty of second degree robbery (Pen. Code, § 211 [count 1]), and found true the allegations that Braggs used a firearm (§ 12022.53, subd. (b)), and committed the robbery at the direction of, in association with, or for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court found true the allegations that Braggs had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)), and had served three prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced Braggs to a total of 16 years in prison, consisting of the middle term of 3 years for the robbery, doubled to 6 years under the three strikes law, plus 10 years for the gang enhancement. The court struck the firearm use enhancement, as well as the enhancements for the prior serious felony conviction and the three prior prison terms. Braggs was ordered to pay various fines and fees.
On appeal, Braggs contends that there is insufficient evidence to support the robbery conviction, the gang allegation, and the firearm allegation. He further contends that the trial court violated his constitutional rights by failing to hold an ability to pay hearing prior to imposing certain fines and fees.
We affirm the trial court's judgment.
FACTS
The facts are recounted as presented by the prosecution. Braggs did not put on a case in his defense.
The Robbery
On the afternoon of August 19, 2018, the victim was leaving a marijuana shop when Braggs approached him and asked him where he was from. The victim understood that Braggs was asking whether he was a gang member. He responded, "I don't gangbang."
As the victim was walking to his car, he noticed Braggs following him. Braggs approached him, and pulled a semiautomatic gun out of his waistband. Braggs pulled back the slide of the gun to chamber a bullet, pointed the gun at the victim, and said, "Give me everything." Fearing for his life, the victim gave Braggs some gold jewelry and a red Ferragamo belt he was wearing. Braggs took the items and ran away.
The victim got into his car and followed Braggs. Braggs then ran toward the victim's car and pointed the gun at the victim. Fearing he would be shot, the victim drove away. Once out of harm's way, the victim pulled over and called the police.
The Investigation
Los Angeles Police Department Officer Michael Dzwoniarek responded to the robbery report. The victim described the robber to Officer Dzwoniarek as a bald Black man with a black beard and brown eyes, who was about five feet and four inches tall, weighed about 175 pounds, and was wearing thin black glasses. The victim told the officer the robber took eight items from him: a red Ferragamo belt with a red and gold buckle containing the Ferragamo logo; a gold Versace chain with a Versace symbol pendant; a gold rope chain with a pendant shaped like a money bag; a diamond Rolex ring; a gold Franco bracelet; a ring with a planet Earth symbol; and two gold rings with nugget diamonds.
Los Angeles Police Department Detective Emily Delph obtained a video of the incident taken by a security camera. The camera captured a portion of the sidewalk and street where the robbery occurred. The video shows in its upper left corner, from a distance, an interaction between two men. Other individuals can be seen standing nearby. The interaction is partially obstructed by parked cars. Afterwards, a bald, bearded Black man wearing glasses is depicted walking away from where the interaction occurred, through the middle of the camera's range. The man appears to be holding a belt. The man can be seen reaching toward his waistband several times, as if holding or adjusting something in the waistband, until he walks out of the camera's view.
The video was played for the jury at trial.
Detective Delph was trained to recognize a person carrying a concealed weapon, and she testified that it is common for someone carrying a firearm in their waistband to touch or manipulate the gun to secure it. She used the video to identify Braggs as a suspect. She then created a six-pack photographic lineup that included a picture of Braggs, which she e-mailed to the victim. The victim responded that he believed Braggs was the robber.
The victim described his stolen belt to Detective Delph as red with a red and gold buckle. The belt was never photographed, and the victim was never shown a photograph of the belt or asked to identify the belt after it was later recovered.
On August 26, 2018, Braggs was pulled over for a traffic violation. Officers recovered a worn, red Ferragamo belt with a gold and red buckle from the back of the car. The arresting officer estimated that Braggs was approximately five feet and six or seven inches tall, and weighed 145 to 160 pounds.
The Victim's Statements Regarding the Robber's Identity
At the preliminary hearing, the victim testified that he was sure of his identification of Braggs as the robber. When the victim made the identification from the lineup Detective Delph sent him, he looked at the array a few times and was sure of his identification. He testified, "'I had a photographic memory of him in my head. I know what he looked like.'" When asked about the fact that only two of the six men in the array were wearing glasses, the victim said he had not noticed. He picked Braggs's photograph because he knew Braggs was the robber. When he reviewed the array again after it was pointed out that only two of the six men were wearing glasses, he maintained that Braggs was the robber.
At trial, the victim described the robber as approximately six feet tall, bigger and broader than himself, with a caramel-color skin tone that differed from Braggs's dark skin tone, facial hair, and thin blue rectangular glasses. The victim did not remember describing the robber to police as being about five feet and four inches tall, about 175 pounds, and in his 40's. He agreed the robber was older than him and could have weighed about 175 pounds. The victim testified that he had seen the robber at the marijuana shop on another occasion before the date of the robbery, and the robber was not Braggs. The victim knew the robber continued to go to the marijuana shop. The victim testified that he had not been to the shop himself since the robbery; the victim was not asked to explain how he knew that the robber had continued to go to the shop.
The victim explained that he identified Braggs in the lineup Detective Delph sent him because Braggs looked "the closest" to the robber and Braggs was the only person in the lineup with a bald head and glasses. He identified Braggs at the preliminary hearing because he "wanted somebody to go down for the crime . . . ."
The victim was impeached at trial with his preliminary hearing testimony.
The victim also testified at trial that police had shown him a photograph of the belt, and he had misidentified it as the one taken from him during the robbery. The belt was not his. The victim said it was his because it looked "familiar." He knew the belt was not his because it did not look worn enough, and the belt buckle was gold. His belt had a silver buckle. He explained that he was not thinking clearly when he told Detective Delph that the buckle was gold a few days after the robbery. The victim's grandmother had given him the belt on his 18th birthday about five years before the trial. The victim appreciated designer belts and was knowledgeable regarding them.
Gang Evidence
Los Angeles Police Department Officer Mark Rakitis was one of the officers who arrested Braggs. He testified as an expert on the Eight Tray Gangster Crips gang (Eight Tray). The gang had between 200 and 250 active members, and its primary activities included felony vandalism, vehicle theft, sales and transportation of illegal narcotics, unlawful possession of firearms, aggravated assault, robbery, mayhem, and murder.
Officer Rakitis opined that Braggs was an Eight Tray member. Several factors led the officer to this conclusion: Braggs had told Officer Rakitis that he was a former member of Eight Tray, and Braggs was driving through Eight Tray territory with a known active Eight Tray gang member when he was arrested. The officer explained that gang members often told police officers they were former members of a gang to avoid admitting active gang membership. The robbery was committed in Eight Tray territory, and robbery was one of the gang's primary activities.
Based on a hypothetical scenario mirroring the facts of this case, Officer Rakitis opined that the robbery was committed for the benefit of Eight Tray. He explained that the question, "Where are you from," was "a challenge of gang affiliation" that the victim understood. The subsequent commission of a robbery within the gang's territory would benefit the gang by creating a reputation for violence and power. Gangs maintain their territory by committing crimes within it to intimidate members of the community, dissuade community members from cooperating with police, prevent encroachment by rival gangs, and attract new young members.
Officer Rakitis sometimes had difficulty convincing witnesses who lived in Eight Tray territory to testify in court and cooperate with law enforcement. People who lived in the gang's territory told the officer they were afraid the gang would target them or their families. The victim in this case lived within Eight Tray territory.
DISCUSSION
Sufficiency of the Evidence
Braggs challenges the sufficiency of the evidence against him with respect to his conviction for robbery and the true findings on the gang and firearm use allegations. We conclude that substantial evidence supports Braggs's conviction and the jury's true findings.
Legal Principles
When reviewing for sufficiency of the evidence, "'"'[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'"' [Citation.]" (People v. Casares (2016) 62 Cal.4th 808, 823 (Casares), disapproved of on another ground in People v. Dalton (2019) 7 Cal.5th 166, 214; see also People v. Clark (2011) 52 Cal.4th 856, 942-943; Jackson v. Virginia (1979) 443 U.S. 307, 321 [federal due process requires proof "sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt"].) "'The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.' (People v. Bean (1988) 46 Cal.3d 919, 932.) '. . . [I]t is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.' (People v. Yeoman (2003) 31 Cal.4th 93, 128.)" (Casares, supra, at p. 823.) This standard applies to assessing the sufficiency of the evidence to support a true finding on an enhancement allegation. (People v. Vargas (2020) 9 Cal.5th 793, 820.)
Robbery
Braggs claims that the evidence presented was insufficient to support his robbery conviction because the victim recanted his identification and gave a reasonable explanation for why his testimony at trial differed from his statements to law enforcement and his testimony at the preliminary hearing. Braggs concedes that a single eye witness identification may be sufficient to establish a perpetrator's identity beyond a reasonable doubt, but argues that in this case the victim's testimony is inherently improbable, and the conviction must be reversed.
We disagree with Braggs's conclusion that the victim's initial testimony was inherently improbable simply because the victim offered a cogent explanation for his starkly different testimony at trial; the prosecution offered an equally cogent reason to support the conclusion that the victim's statements to law enforcement and at the preliminary hearing were true. The victim was very confident of his identification of Braggs in his earlier descriptions, stating that he had a "photographic memory" of Braggs. Officer Rakitis explained that gangs often intimidated witnesses, and that it was not uncommon for a witness to recant an identification at trial out of fear of violence. The jury could reasonably infer that the victim, who lived within Eight Tray territory, changed his testimony because he was afraid of reprisal. It is of no moment that the record also includes sufficient evidence that could support a finding that the victim lied when he first identified Braggs because he was angry and wanted someone to "go down for the crime." There was substantial evidence in support of both positions, and it was the jury's duty to determine which version of the victim's testimony to credit. (Evid. Code, § 411 [testimony of a single witness is generally sufficient to prove any fact]; People v. Rivera (2019) 7 Cal.5th 306, 331 (Rivera) ["'If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.'"]; People v. Friend (2009) 47 Cal.4th 1, 41 (Friend) [conflicts in the evidence are for the jury to resolve, and where a jury has credited statements by a witness, an appellate court can reject those statements only if they are physically impossible or facially false].)
Moreover, the victim's identification of Braggs as the perpetrator based on the photographic array was corroborated by other evidence presented at trial. The victim originally described to Detective Delph the belt that Braggs stole as red, with a Ferragamo logo and a gold buckle. A belt of that description was found in the backseat of the car Braggs was driving when he was arrested. The probability of the wrong belt and the wrong man matching the descriptions that the victim initially gave was low in light of the distinctive appearance of the belt. The video also depicts a man carrying a belt. The appearance of the man on the video is consistent with Braggs's appearance and with the victim's initial description of the perpetrator. The jury could reasonably conclude that the man depicted in the video was Braggs. We will not second guess the jury's finding that Braggs is the individual who committed the robbery, as there is substantial evidence on which to base such a finding. (Evid. Code, § 411; Rivera, supra, 7 Cal.5th at p. 331; Friend, supra, 47 Cal.4th at p. 41.)
Gang Allegation
"Section 186.22 adds various sentencing enhancements for gang-related felonies . . . . [S]ection 186.22 requires proof of only two elements: (1) that the defendant committed a felony for the benefit of, at the direction of, or in association with any criminal street gang and (2) that he did so with the intent to promote, further, or assist in criminal conduct by gang members. (People v. Albillar (2010) 51 Cal.4th 47, 67 [(Albillar)].)" (People v. Mejia (2012) 211 Cal.App.4th 586, 613.)
"'In order to prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs.' (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) '"Expert opinion that particular criminal conduct benefited a gang" is not only permissible but can be sufficient to support [a] gang enhancement.' (People v. Vang (2011) 52 Cal.4th 1038, 1048; see Albillar, supra, 51 Cal.4th at p. 63.) While an expert may render an opinion assuming the truth of facts set forth in a hypothetical question, the 'hypothetical question must be rooted in facts shown by the evidence.' (People v. Gardeley [(1996)] 14 Cal.4th [605,] 618.) Indeed, an 'expert's opinion may not be based "on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors."' (People v. Richardson (2008) 43 Cal.4th 959, 1008.)" (People v. Franklin (2016) 248 Cal.App.4th 938, 948-949 (Franklin).) "As for the specific intent prong, '"[i]ntent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense."' [Citation.]" (Id. at p. 949.)
"Not every crime committed by a gang member is gang related. (Albillar[, supra,] 51 Cal.4th [at p.] 60; [People v.] Rios [(2013)] 222 Cal.App.4th [542,] 565 [(Rios)].) Nor can a crime be found to be gang related simply because the perpetrator is a gang member with a criminal history. (In re Frank S. [(2006)] 141 Cal.App.4th [1192,] 1199.) Although a lone actor is subject to a gang enhancement, merely belonging to a gang at the time of the commission of the charged conduct does not constitute substantial evidence to support an inference the sole actor specifically intended to promote, further, or assist any criminal conduct by gang members. (Rios, [supra,] at p. 566.)" (People v. Perez (2017) 18 Cal.App.5th 598, 607.) Instead, "[g]ang membership is simply circumstantial evidence establishing that the crime was gang related and a motive for why a defendant may have harbored the 'specific intent to promote, further, or assist in any criminal conduct by gang members.' (§ 186.22, subd. (b)(1); [People v.] Sanchez [(2016) 63 Cal.4th] 698-699 [(Sanchez)].)" (People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 540.)
Braggs argues that the evidence presented at trial was insufficient to prove that he committed the felony for the benefit of, at the direction of, or in association with any criminal street gang; or that he did so with the intent to promote, further, or assist in criminal conduct by gang members. He complains that gang membership alone is insufficient to support the enhancement, and asserts that Officer Rakitis's opinion testimony was insufficient to support the enhancement because it was based on speculation and not rooted in the facts. Braggs focuses on the following factors as proof that the crime could not have been gang-related: "[Eight Tray] was not mentioned, there was no display of [Eight Tray] signs, [Eight Tray] tattoos, gang or [Eight Tray] clothing or colors, bragging or taking credit for the robbery by [Braggs] or [Eight Tray] gang members, [the victim] was not in a rival gang, and this did not occur in a rival gang area." We conclude that substantial evidence supports the jury's true finding.
At trial, Officer Delph testified that Braggs admitted his Eight Tray affiliation to her. Officer Rakitis testified that, although Braggs told her that he was a former Eight Tray member, it was common for gang members to tell officers they were former gang members to cover their current gang membership. This tendency for active members to claim former membership, together with the fact that Braggs was driving with another Eight Tray member when he was stopped and arrested, led the officer to conclude that Braggs was an active Eight Tray member. Although membership in a gang alone is not sufficient to support an enhancement, it is circumstantial evidence that the crime was committed for the benefit of a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members. (Sanchez, supra, 63 Cal.4th at p. 699.)
Additionally, evidence was presented that Braggs committed the robbery within Eight Tray territory that was being contested by a rival gang. Officer Rakitis, who had worked in Eight Tray territory for six years and had extensive experience with the gang as a member of the gang enforcement detail, testified that gangs will commit crimes within a territory to maintain control over it, prevent other gangs from encroaching, discourage members of the community from cooperating with police, and attract the attention of young recruits. The location of the crime was circumstantial evidence that the robbery was committed to benefit Eight Tray in each of the ways described by Officer Rakitis. The location of the robbery in Eight Tray territory was also circumstantial evidence supporting a finding that Braggs intended to promote, further, or assist in criminal conduct by gang members: committing a robbery within Eight Tray territory can frighten the community within the boundaries of that territory and make it less likely that people will report Eight Tray members' crimes.
Braggs asserts that Officer Rakitis improperly testified that gang members committed "crimes" to enhance a gang's reputation. He argues that the generic reference to "crimes" improperly expanded the gang enhancement to cover any felony committed by a gang member. Braggs did not object to this testimony at trial and has forfeited the contention. (People v. Stevens (2015) 62 Cal.4th 325, 333 (Stevens) ["the failure to object to the admission of expert testimony . . . at trial forfeits an appellate claim that such evidence was improperly admitted"].) Regardless, the crime committed in this case was not generic. Officer Rakitis testified that robbery is one of Eight Tray's primary activities. Braggs further argues that Officer Rakitis did not testify regarding the possibility of a gang member personally reaping a benefit from commission of a crime. Braggs had the opportunity to cross-examine Officer Rakitis in regard whether a gang member might have a personal reason to commit a crime rather than for the benefit of the gang, but he did not. Braggs cannot complain that the officer did not address an issue that Braggs did not raise at trial.
There was also evidence that Braggs issued a gang challenge just before the robbery when he asked the victim where he was from. Officer Rakitis explained that within South Los Angeles criminal street gang culture "where are you from?" is a challenge of gang affiliation. The victim also understood this to be a gang challenge and responded that he did not gangbang. Officer Rakitis testified that Eight Tray was a large gang of 200 to 250 members, claimed a sizeable territory, and engaged in robbery as a primary activity. The jury could reasonably infer from this information that it was not necessary for Braggs to identify Eight Tray specifically (or that he did not believe it was necessary) because members of the community would conclude that Braggs was an Eight Tray member based on the fact that he issued a gang challenge prior to committing a robbery within Eight Tray territory.
Finally, Braggs challenged the victim and robbed him in public in broad daylight, with at least one bystander in near proximity. Braggs's decision to issue a gang challenge and commit the robbery in such a conspicuous manner within Eight Tray territory supports the inference that he wanted to be seen committing the robbery in order to increase the gang's reputation for violence, which would both benefit Eight Tray and enable his fellow gang members in their criminal pursuits.
By failing to object at trial, Braggs forfeited any challenge to Officer Rakitis's opinion that, given a hypothetical mirroring the facts of this case, the robbery would have been committed to benefit Eight Tray. (See Stevens, supra, 62 Cal.4th at p. 333.) Regardless, the officer's opinion was not rooted in speculation as Braggs claims. Officer Rakitis testified that he based the opinion on his personal experience and knowledge of this specific gang and its workings, including the ways in which violent crime by its members would benefit it; and the facts adduced at trial, including the location of the crime within Eight Tray territory, the type of crime committed, and the initiation of the robbery with issuance of a gang challenge.
Our review of the record demonstrates that the jury's findings were not solely supported by evidence of Braggs's gang membership, but were instead based on substantial evidence, including Officer Rakitis's opinion. The cases upon which Braggs relies do not compel a contrary conclusion. (Franklin, supra, 248 Cal.App.4th 938; People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa); People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon); In re Frank S., supra, 141 Cal.App.4th 1192.) Although the facts at issue in these cases share some of the characteristics of this case, including that the defendants did not "call out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti while committing" their crimes (Ochoa, supra, at p. 662), the factors that were not present in those cases (but are present here)—the gang challenge, perpetration of the crime within gang territory, and commission in public during the day—sufficiently distinguish this case to support the jury's findings.
In Ramon, two gang members were arrested in gang territory driving a recently stolen vehicle with an unregistered firearm. (Ramon, supra, 175 Cal.App.4th at p. 849.) The fact that the men were members of the same gang and that they were in possession of the stolen items within that gang's territory were the only evidence offered in support of the gang enhancement. (Ibid.)
Firearm Use Enhancement
Section 12022.53, subdivision (b) provides that "any person who, in the commission of a [robbery], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply." Toy guns do not qualify as a firearm, nor do pellet guns or BB guns. (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 (Monjaras).) Whether a defendant used a firearm in the commission of the robbery is for the trier of fact to decide and may be established by direct or circumstantial evidence. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Rodriguez (1999) 20 Cal.4th 1, 12-13 (Rodriguez).)
Braggs first argues that the firearm enhancement is not supported by substantial evidence because a gun is not visible in the surveillance video of the robbery. The argument lacks merit. The victim testified that the robber pointed a gun at him both during the robbery and when the victim attempted to retrieve his possessions by driving his car to follow the robber. Although no gun is depicted in the video, the video does not show the robbery in its entirety. The interaction takes place at the point furthest away from the camera's view, and the perpetrator's hands are not always visible. The video does not depict any part of the interaction between the robber and the victim after the robber stole the victim's property and the victim pursued him. Because the video does not preclude the possibility that a gun was used, the victim's testimony was not inherently improbable, and is sufficient to support the finding that Braggs used a gun in the robbery. (Evid. Code, § 411; Rivera, supra, 7 Cal.5th at p. 331; Friend, supra, 47 Cal.4th at p. 41.)
Additionally, Detective Delph, who had been trained to identify when a person was carrying a concealed weapon, testified that people will often carry concealed weapons in their waistbands, and that law enforcement officers are taught to focus on a suspect's hand motions to determine whether an individual has a weapon. The detective testified that it is "common for a person with a gun in the waistband to touch it or manipulate it with their hand, or maybe to touch it to secure it . . . ." The video depicted Braggs, as he walked away from where he robbed the victim, touching his waistband in a manner consistent with the detective's description of a person carrying a concealed weapon. A jury could reasonably conclude that Braggs used a firearm in commission of the robbery, based on Braggs's movements shown in the video.
Braggs next argues that the victim's visual observation of the gun was insufficient to establish that the weapon was real. We disagree. The victim testified that when the robber approached him he pulled out a gun, cocked the weapon, pointed it at the victim, and ordered the victim to "[g]ive me everything you've got." The victim was familiar with firearms through exposure to them at a gun range. He understood the difference between a revolver and a semi-automatic gun, and identified the robber's gun as a semi-automatic weapon. The victim demonstrated the robber's actions in court, which the prosecutor verbally described as "-- the witness has reached under -- with his right hand under his shirt at his left waist, pantomimed removing what appears to be -- pantomiming removing a firearm from his left waistband and pulling -- pulling the slide of the firearm back and releasing." The victim agreed with the prosecutor's description. The victim testified that he understood that by "cock[ing]" the gun the robber was loading a bullet in the chamber.
Although it is unclear, Braggs appears to contend that a victim's testimony that he or she visually observed a firearm does not constitute a "sensory perception" of the firearm, and is therefore insufficient to establish that the weapon is a real firearm and not a toy. He urges us to reject Monjaras, supra, 164 Cal.App.4th 1432, which held that "'words and actions, in both verbally threatening and in displaying and aiming [a] gun at others, [can] fully support[] the jury's determination the gun was sufficiently operable [and loaded].' [Citation.]" (Id. at p. 1437.)
We do not interpret the relevant case law to suggest that seeing a firearm is not in itself a sensory perception, but even if additional sensory perception were required, Braggs's use of the weapon was consistent with the use of an actual firearm, and would be sufficient to support the jury's firearm use finding. In Monjaras, "[the] defendant demanded of the female victim, 'Bitch, give me your purse,' then pulled up his shirt and displayed the handle of a black pistol tucked in his waistband. The victim, who had seen guns before but had never handled one, testified she immediately saw that the pistol looked like a gun, and it made her scared. She 'assumed' the pistol was 'real' and handed over her pocketbook. When asked by [the] defendant's trial attorney what the pistol was made of, the victim said: 'Probably metal because—I don't know. Wasn't wood, wasn't plastic. I don't know if it was plastic or metal. . . . He don't show it to me. He just do "this" to me [pulled up his shirt and displayed the pistol].' The victim then conceded that she could not say for certain whether it was 'a toy or real or not.'" (Monjaras, supra, 164 Cal.App.4th at p. 1436.) The Court of Appeal held that "[t]he jury was not required to give defendant the benefit of the victim's inability to say conclusively the pistol was a real firearm. This is so because '[the] defendant's own words and conduct in the course of an offense may support a rational fact finder's determination that he used a [firearm].' (Rodriguez, supra, 20 Cal.4th at p. 13.) Indeed, even though for purposes of section 12022.53, subdivision (b), a firearm need not be loaded or even operable, 'words and actions, in both verbally threatening and in displaying and aiming [a] gun at others, [can] fully support[] the jury's determination the gun was sufficiently operable [and loaded].' (People v. Lochtefeld [(2000)] 77 Cal.App.4th [533,] 541.) Accordingly, jurors 'may draw an inference from the circumstances surrounding the robbery that the gun was not a toy.' (People v. Aranda (1965) 63 Cal.2d 518, 533 [(Aranda)].)" (Monjaras, supra, 164 Cal.App.4th at pp. 1436-1437.)
Unlike the victim in Monjaras, in this case, the victim's certainty that what he saw was a firearm was not brought into question at trial. The victim testified he was familiar with firearms and how they operated, and identified the gun that Braggs used in the robbery as a semi-automatic weapon. Even if the victim's visual identification was insufficient, the jury could infer from the manner in which Braggs used the gun that it was not a toy. Our Supreme Court has held: "If the weapon cannot be found, the jury may be instructed by the court that it may draw an inference from the circumstances surrounding the robbery that the gun was not a toy. Testimony to the effect that the defendant was flourishing the pistol or pointing it at the victim and was using threatening words or conduct indicating that he intended to fire it if his demands were not met would be evidence from which the inference could be drawn." (Aranda, supra, 63 Cal.2d at p. 533.) Here, the victim testified that the robber "cocked" the gun, and pantomimed the robber pulling back the slide to chamber a bullet. He testified that the robber demanded that he give him everything he had while pointing the gun at him. This is substantial evidence from which a jury could reasonably conclude that the gun was real.
Ability to Pay Fines and Fees
At Braggs's sentencing hearing on October 9, 2019, the trial court imposed a $10 crime conviction fee (§ 1202.5), a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), and a $300 restitution fine (§ 1202.4, subd. (b)), and imposed and stayed a corresponding $300 parole revocation fine (§ 1202.45, subd. (a)). Counsel did not request a hearing or argue that Braggs lacked the ability to pay the fines, fees, and assessments. Braggs contends that the trial court's imposition of fines, fees, and assessments violated his rights to due process and equal protection under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
Although the People contend that the proper analysis is under the excessive fines clause of the Eighth Amendment, Braggs does not make an Eighth amendment argument in his opening brief, and specifically disavows the argument in the reply brief. Any Eighth Amendment challenge is therefore forfeited and waived.
In Dueñas, the court held, "[D]ue process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under . . . section 1465.8 and Government Code section 70373." (Id. at p. 1164.) It further held that the execution of a restitution fine under section 1202.4 "must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
"Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal." (In re Sheena K. (2007) 40 Cal.4th 875, 880.) This forfeiture doctrine applies where a defendant fails to object to the imposition of fines and fees at sentencing. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729.) The opinion in Dueñas was issued on January 8, 2019, 10 months prior to Braggs's sentencing hearing. Braggs failed to object to the trial court's imposition of the assessments, fee, and fine without a hearing to determine his ability to pay. Accordingly, he has forfeited this issue.
Braggs argues that his claim was not forfeited because Dueñas applies retroactively to all cases not yet final on appeal. As we stated, ante, Braggs's sentencing hearing occurred 10 months after Dueñas was filed. Dueñas applied to Braggs at the time he was sentenced, not retroactively. He simply forfeited the claim by failing to raise it.
DISPOSITION
The trial court's judgment is affirmed.
MOOR, J.
I concur:
KIM, J BAKER, J., Concurring in Part and Dissenting in Part
I agree with the majority about everything except the sufficiency of the evidence to support the true finding on the Penal Code section 186.22, subdivision (b)(1) (hereafter Section 186.22(b)(1)) gang enhancement. I would hold the evidence insufficient on that point and remand for resentencing. I will briefly explain why.
Section 186.22(b)(1) requires proof of two separate elements. The People must prove the substantive crime(s) were committed "for the benefit of, at the direction of, or in association with any criminal street gang" (the gang-related element) and "with the specific intent to promote, further, or assist in any criminal conduct by gang members" (the specific intent element). In most cases where a Section 186.22(b)(1) enhancement is found true and later affirmed on appeal, there is evidence of joint commission of a crime by multiple gang members. (See generally People v. Albillar (2010) 51 Cal.4th 47, 68 ["[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"] (Albillar); see also People v. Morales (2003) 112 Cal.App.4th 1176, 1198 ["the typical close case is one in which one gang member, acting alone, commits a crime"].) There is no such evidence here, of course, because defendant and appellant Bobby Braggs (defendant) committed the robbery alone. So the question becomes whether there is nevertheless sufficient evidence that, in robbing the victim of his belt and jewelry, defendant specifically intended to promote, further, or assist in any criminal conduct by gang members.
There is not. To be sure, there is plenty of evidence defendant is a member of the Eight Tray Gangster Crips, but Section 186.22(b)(1) "does not criminalize mere gang membership; rather, it imposes increased criminal penalties only when the criminal conduct is felonious and committed not only 'for the benefit of, at the direction of, or in association with' a group that meets the specific statutory conditions of a 'criminal street gang,' but also with the 'specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Gardeley (1996) 14 Cal.4th 605, 623-624; see also People v. Mesa (2012) 54 Cal.4th 191, 196-197.) There is also evidence defendant committed the robbery within territory claimed by the Eight Tray Gangster Crips, but again, that says next to nothing about defendant's specific intent.
Often, this type of shortcoming in proof is ameliorated to some degree by testimony about the specific intent element from a gang expert. But here, we don't even have that. The gang expert in this case did provide the often-seen "create fear in the community" testimony when asked whether defendant's robbery was committed for the benefit of the Eight Tray Gangster Crips, but the expert was never asked to opine on whether defendant had the specific intent to promote, further, or assist in criminal conduct by gang members.
Insofar as the majority nonetheless relies on the gang expert's opinion concerning the gang-related element as proof of the separate specific intent element, the opinion testimony is still lacking. At most, the expert testified defendant's crime would instill in members of the community a general fear of gangs, which may facilitate commission of more gang crime. Relying on that testimony as sufficient proof of specific intent rather obviously and incorrectly permits prosecutors to collapse the two Section 186.22(b)(1) elements into one.
There was essentially no evidence at trial that any bystander or member of the community would have known defendant was a member of the Eight Tray Gangster Crips specifically. (That gang claimed territory where the robbery occurred, but there was also evidence, recounted by the majority, that a rival gang was contesting the Eight Tray Gangster Crips' claim to that territory.) The generic nature of the expert's fear in the community testimony is itself problematic. (Albillar, supra, 51 Cal.4th at 67-68 ["The enhancement set forth in [S]ection 186.22(b)(1) does not pose a risk of conviction for mere nominal or passive involvement with a gang. Indeed, it does not depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang"], italics added.) --------
When the prosecution presents appropriate proof of a specific intent to promote, further, or assist in criminal conduct by gang members (as well as proof of the separate gang-related element), a lone offender can be charged with and sentenced for a Section 186.22(b)(1) enhancement. Such proof of specific intent, however, is absent here. The majority's rationale greatly expands the circumstances in which Section 186.22(b)(1) enhancements can be found true. I believe that expansion is inconsistent with the intent behind Section 186.22(b)(1) and, on this issue, I respectfully dissent.
BAKER, J.