Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. BA321670, Norman J. Shapiro, Judge.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II, and Alene M. Games, Deputy Attorneys General for Plaintiff and Respondent.
GRIMES, J.
SUMMARY
Defendant Edgar A. Castillo was convicted of carjacking (Pen. Code, § 215, subd. (a); count 1) and robbery (§ 211; count 2). The jury also found true the gang and firearm allegations for both counts (§§ 186.22, subd. (b), 12022.53, subd. (b), 12022, subd. (a)(1)). Defendant’s only contention on appeal is that insufficient evidence supports the true finding on the gang enhancement. Because we conclude the enhancement is supported by substantial evidence, we affirm.
FACTS
On April 18, 2007, W.R. was driving her black Ford Explorer in the City of Los Angeles. While she was stopped at a traffic sign, defendant walked up to the driver’s window and asked for money. W.R. locked the driver’s door. Alexander Gonzales, armed with a gun, opened the passenger door, and pressed the button to unlock all of the car’s doors. Defendant then pulled W.R. out of her car and hit her over the head with his gun. He demanded that she give him “everything.” Fearing for her life, she ran away, leaving all of her belongings in the car, including her purse, a gym bag, and two cell phones. Defendant and Gonzales drove off in her car, followed by a white Toyota Camry driven by Maria Godino, who smiled at W.R. as she was driving away. W.R. called the police from a nearby doughnut shop.
On April 24, 2007, Los Angeles Police Officer Steven Jenkins and his partner Officer John Pultz pulled over a black Ford Explorer after it ran a red light at Budlong Street and Martin Luther King Boulevard. Defendant got out of the Explorer, and when Officer Jenkins ordered him to the sidewalk, he made a run for it. Police caught up to him when he tripped over a fence. Defendant tried to get rid of the car keys by throwing them in a hedge. Officer Jenkins recovered the keys from the hedge, which unlocked and started the Explorer. Jenkins discovered that the car had been reported stolen and was registered to W.R. Defendant told Officer Jenkins that the “ATC” tattoo on his neck stood for “Addicted to Crime, ” the name of his gang.
After reading W.R.’s crime report, Officer Jenkins went to defendant’s house to look for W.R.’s stolen property, which was not in the Explorer. Defendant’s mother gave Officer Jenkins permission to search defendant’s room. He found a gray LG cell phone and a red Samsung cell phone under a mattress.
W.R. was called to the police station on April 24, 2007. She identified her stolen phones and singled out defendant in a photo lineup.
On May 5, 2007, at 1:25 a.m., Los Angeles Police Officer Mario Vasquez saw a white Camry driving without its headlights on. When he stopped the car, he discovered it had been reported stolen. He arrested the occupants of the car, driver Gonzales and passenger Godino. Gonzales had “ATC” tattooed on his chest.
W.R. identified Gonzales as one of the carjackers, and Godino as the driver of the white Camry on the day of the carjacking.
Los Angeles Police Officer John Flores testified as a gang expert. “ATC” stands for “Alley Tiny Criminals, ” a gang operating in the area near the Los Angeles Coliseum. Defendant admitted to being a member of ATC with the moniker “Joker.” Gonzales was also an active ATC member known as “Solo.”
The crimes occurred inside territory claimed by ATC. Robbery is one of ATC’s primary activities. Crimes are committed in a gang’s territory to create fear and intimidation in the community. Gang members often discuss crimes with each other before and after committing them. A gang member elevates his status within a gang by committing crimes in front of other members. There is a black market for stolen cell phones, and stolen vehicles are used by gangs in robberies and other crimes. On these facts, Officer Flores opined that the crime was for the benefit of the gang, and was in association with the gang.
DISCUSSION
Defendant does not challenge the sufficiency of the evidence that he and Gonzales are gang members, but he claims there is insufficient evidence to support the gang enhancement, reasoning that Officer Flores’s testimony was speculative. Defendant contends there was no evidence, other than Flores’s “baseless” opinion, that the carjacking and robbery were at the direction of, in association with, or for the benefit of a gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. (Pen. Code, § 186.22, subd. (b)(1).) We find the record is replete with facts supporting the finding that these crimes were committed in association with and for the benefit of a gang, with the required intent. The carjacking and robbery were committed by two members of the same gang working in concert, in gang territory, who apparently arrived at the scene of the crime in another stolen car. These facts more than adequately support the expert’s opinion that the crime was gang related, and we therefore affirm the judgment.
Before a judgment of conviction can be set aside for insufficiency of the evidence, it must clearly appear that on no hypothesis whatsoever is there sufficient substantial evidence to support the judgment. (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Johnson (1980) 26 Cal.3d 557, 575-578.) The record must be reviewed in its entirety when determining whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 316-320; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “[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.” (People v. Johnson, at p. 578.)
Penal Code section 186.22, subdivision (b)(1) provides for increased penalties for a crime “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.” “It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation.” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) An expert opinion, however, must have some factual basis, and must not be purely speculative. (See People v. Gardeley (1996) 14 Cal.4th 605, 618.) There must be evidentiary support for an expert’s inferences. (People v. Ochoa (2009) 179 Cal.App.4th 650, 662.)
In People v. Martinez (2008) 158 Cal.App.4th 1324, the court found that a gang enhancement was supported by substantial evidence where the defendant, an admitted gang member, committed a robbery with a gang confederate, and the expert opined the crime was committed in association with a gang. “ ‘The evidence that defendant knowingly committed the charged crime[] in association with... fellow gang members was sufficient to support the jury’s findings on the gang enhancements....’ [Citation.]” (Id. at p. 1332.) The crime was not committed in gang territory, and defendant did not identify his gang when he committed the crime. Nevertheless, the court concluded that “[t]he record supports a finding the crime was committed ‘in association with’ the gang with the intent to assist criminal conduct.” (Ibid.)
This case is similar, except that it is bolstered by the additional fact that the crime was committed in ATC gang territory. Defendant distracted the victim by asking for money while his gang associate gained entry to the car and unlocked the doors so defendant could overtake the victim and obtain control of the car. “Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) These facts clearly support Officer Flores’s opinion that the crime was committed in association with the gang, with the specific intent to assist in criminal conduct by gang members.
Defendant maintains that there is no evidence that the crimes “benefited” the gang, as defendant and Gonzales did not identify themselves as gang members during the robbery, and therefore did not ascribe credit to the gang for their acts. It is sufficient that the crime was committed in association with a gang, without finding the crime benefited the gang. (Pen. Code, § 186.22, subd. (b)(1).) In any event, “intimidation” or “credit-taking” are not the only evidence that a crime was committed for the benefit of a gang. Officer Flores testified that robbery is one of ATC’s primary activities and the gang benefits from robberies by making a profit, and because stolen vehicles provide transportation to commit other crimes. Here, two gang members arrived at the scene of the crime in a stolen Camry, to steal another car. These facts support an inference that the crime was for the benefit of the gang. Officer Flores also testified that committing a carjacking with another gang member can elevate a gang member’s status within the gang, which benefits the gang. It is therefore reasonable to infer that defendant sought to increase his status in the gang by committing the crime in front of Gonzales, and in front of Godino, who likely understood defendant and Gonzales to be gang members because of their prominent tattoos.
This case is unlike those cited by defendant, where improper opinions, not based on evidence, were the only evidence supporting a gang enhancement. (See People v. Ochoa, supra, 179 Cal.App.4th at pp. 654-655 [expert opinion was speculative; there was no evidence that crime was committed in gang territory or that there was special gang permission to commit the crime]; People v. Albarran (2007) 149 Cal.App.4th 214, 227 [expert admitted he did not know the reason for the shooting, therefore there was insufficient evidence that the shooting was gang related where circumstances did not evidence any gang connection]; In re Frank S. (2006) 141 Cal.App.4th 1192, 1195-1197 [expert’s testimony based only on weak inferences]; People v. Ramon (2009) 175 Cal.App.4th 843, 851-853 [expert opinion speculative where two gang members were found in a stolen car with a firearm, because the expert did not testify that possessing stolen vehicles was one of the activities of the gang].) In this case, Officer Flores’s opinion was not based on speculation, but was based on conclusions drawn from a well-established factual record that more than adequately supports the jury’s finding.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RUBIN, Acting P.J., FLIER, J.