Opinion
B163258.
10-23-2003
THE PEOPLE, Plaintiff and Respondent, v. FABIAN CONTRERAS, Defendant and Appellant.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
By a second amended information, the District Attorney of Los Angeles County charged Fabian Contreras (appellant), in a five-count information, with various crimes. Count I charged appellant with possessing a firearm after having been declared a ward of the juvenile court, a violation of Penal Code section 12021, subdivision (e).
Unless otherwise indicated, all further section references are to the Penal Code.
Count II alleged appellant had committed the crime of felony vandalism, a violation of section 594, subdivision (a). In count III, appellant was charged with a street gang crime of brandishing a firearm (§ 417) for the benefit of a street gang, a violation of section 186.22, subdivision (d). In count IV, appellant was charged with a street gang crime of vandalism (§ 594, subd. (a)) in violation of section 186.22, subdivision (d), and in count V it was alleged appellant had committed the crime of assault with a firearm, a violation of section 245, subdivision (a)(2). In count V it was further alleged appellant had personally used a firearm within the meaning of section 12022.5 and that he had suffered a juvenile adjudication of section 245, subdivision (a)(2), and thus was subject to the increased penalty provisions provided for in sections 1170, subdivisions (a) through (d) and 667 subdivisions (b) through (i). Finally, it was alleged appellant had committed the crimes for the benefit of, at the direction of, and in association with a criminal street gang in violation of section 186.22 subdivision (b)(1).
A jury found appellant guilty of counts I, III and V and also found the allegation of personal firearm use to be true. The criminal street gang enhancements were also found to be true. Appellant admitted the prior strike of a serious or violent felony as a juvenile. He was found not guilty on the two vandalism counts.
Probation was denied and appellant was sentenced to a total term of 18 years in state prison. The court imposed sentence on count V, the assault with a deadly weapon and picked the high base term of four years. Because appellant had suffered a prior serious felony adjudication the four years was doubled to eight years. (§§ 667 subd. (b)-(i) and 1170.12 subd. (a)-(d).) The court then imposed an additional 10 years pursuant to section 186.22 subdivision (b)(1). On the remaining two counts the court imposed mid terms of two years which were doubled to four years because of the prior felony adjudication. (& sect;§ 667 subd. (b)-(1) and 1170.12 subd. (a)-(d).) An additional 10 years was imposed pursuant to section 186.22, subdivision (b)(1) for a total of 14 years. Sentence on counts I and III were stayed pending completion of the sentence on count V. (§ 654.) The appeal is from the judgment.
FACTS
On March 10, 2002, at approximately 5:00 p.m., Jenny Luzarraga was returning home from the grocery store with her three-year-old daughter and her neighbors young niece. Ms. Luzarraga was driving with her windows down. As she turned right onto Park View from 6th Street, she saw a white car coming down the hill towards her in the opposite lane. She recognized the driver, a known member of the Wanderers gang named "Spanky." She also recognized appellant, who was in the front passenger seat, as another gang member named "Dreamer." A third person was seated in the back of the car. As the cars converged, appellant pulled out a semiautomatic firearm, reached across Spanky, pointed it at Luzarraga and said, "Wanderers." Ms. Luzarraga thought she heard appellant say, "Bitch," as the white car pulled away.
Ms. Luzarraga, frightened by the incident, put the car into gear and went straight home. She did not report the incident to the police at that time, but continued on with the barbeque she was having with her neighbor. At approximately 9:40 p.m., while she was cleaning up after the barbeque, Ms. Luzarraga heard a noise and went out to investigate. She saw appellant tagging a wall about seven feet away. Appellant was in the process of writing "W-13" and "ha-ha-ha." W-13 indicated his gang — the Wanderers — and the "ha-ha-ha" was an implied threat. Ms. Luzarraga put "one and one together" and panicked, relating the tagging to the earlier incident with the gun. In spite of her fear, Ms. Luzarraga followed appellant down the stairs to the back parking lot. She saw that her car had been tagged with the symbols "W-X3." Ms. Luzarraga then called the police. After the incident, Ms. Luzarraga moved out of her apartment and put her possessions in storage.
Ms. Luzarraga knew appellant because he was an associate of her estranged husband, Fernando, also a member of the Wanderers. Appellant had been to her house on a prior occasion and had been a passenger in her car when the car had belonged to her husband.
Expert Testimony
Police Officer James Erwin of the Los Angeles Police department testified for the prosecution. Erwin had been a police officer for six years, but for the last three years had worked in the Rampart Special Enforcement Unit, Gang Detail monitoring gang activity. He knew about the Wanderers through informal interviews with members on the streets and through reports written by other officers. Officer Erwin was "familiar" with the Wanderers as they are one of the more "notable" gangs in the area. The gang has 70 members and its "turf" is between 3rd Street on the north to 6th Street on the south and into MacArthur Park; it also extends from Alvarado on the east to Coronado on the west. Their rivals are the Mara Salvatrucha, Crazy Riders, and the 18th Street Gang.
In his general definition of a criminal street gang, Officer Erwin stated that the purpose of a gang is "to create an atmosphere of fear and intimidation" to everyone in the neighborhood, and to rival gangs. He also explained the various hierarchies within a gang and how members could move up the ranks by "doing things for the gang and basically doing things in furtherance of the gang." This could include committing robbery, selling drugs in the neighborhood, or it could be a shooting.
Over the three years at Rampart, Officer Erwin had contact with 10 to 15 members of the Wanderers. This included Carlos Martinez, aka Caspar, who was convicted of an armed robbery committed in the area on November 18, 2001. His only contact with appellant was through friendly "casual conversation" one or two times on the street and when he cited appellant for littering on March 16, 2001. However, based on information in appellants gang I.D. cards, Officer Erwin testified that appellant had been a known gang member since 1995 and used the monikers Little Macho, Peanut and Dreamer,
CONTENTIONS ON APPEAL
Appellant makes three contentions: (1) his conviction under Penal Code Section 186.22 subd. (d) (count III) must be reversed because that section defines a penalty provision, not a substantive offense; (2) there was insufficient evidence to support the gang enhancements to counts I, III and V and to the substantive gang offense (count III) because the Prosecutor elected to charge assault with a deadly weapon, robbery, vandalism and brandishing as "primary activities" within the meaning of the statute, but failed to produce evidence that the Wanderers were chiefly or principally involved in those crimes and that brandishing is not an enumerated predicate felony within the meaning of section 186.22(e); and (3) the trial court committed prejudicial error by failing to instruct the jurors with the definition of "primary activities" as contained in CALJIC No. 17.24.2.
DISCUSSION
I
THERE WAS NO ERROR IN CONVICTING APPELLANT OF SECTION 417
Appellant contends that his conviction under section 186.22, subdivision (d) (count III) must be reversed because that section defines a penalty provision, not a substantive offense. The Supreme Court recently ruled that section 186.22(d) is an alternate penalty provision and therefore, cannot be charged as a substantive crime. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 896.). Specifically, the Court stated that section 186.22, subdivision (d) "provides for an alternate sentence when it is proven that the underlying offense has been committed for the benefit of, or in association with, a criminal street gang" and therefore, is an alternate penalty provision. The Supreme Court indicated the problem thusly, "By interpreting the statute as a penalty provision [as opposed to a substantive offense], prosecutors would be free to charge . . . section 186.22, subdivision (d) along with the predicate offense needed to satisfy that section without running afoul of the necessarily included offense rule." Id. at p. 898. Appellant is correct in his assertion that the section is a penalty provision, but in error in concluding there was no substantive offense charged.
The information is not necessarily a model of pleading. It charges appellant with a violation of section 186.22, subdivision (d) in that he committed the crime of brandishing a firearm in violation of section 417 with the specific intent to promote further, and assist in criminal conduct, etc. Although the better practice would be to charge the substantive offense and then allege it was for the benefit of a street gang, there is no showing that the defense did not understand the charge, or that the jury was somehow misled or misinstructed. In her argument to the jury, the prosecutor informed the jury the substantive crime was brandishing a firearm and that there were gang enhancements the jury would have to determine. The verdict form required the jury to find the defendant guilty or not guilty of the crime of brandishing before it had to decide the enhancement issue. This is what Robert L. says is required. However, this does not resolve the issue in this case as the court erred in its section 186.22 instructions.
II
THE EVIDENCE AS TO THE ELEMENT OF "PRIMARY ACTIVITIES" WAS INSUFFICIENT
Appellant further contends: (1) there was insufficient evidence to support the gang enhancements to counts I, III and V and to the substantive gang offense (count III) because the prosecutor elected to charge assault with a deadly weapon, robbery, vandalism and brandishing as "primary activities" within the meaning of the statute and failed to produce evidence that the Wanderers were chiefly or principally involved in those crimes; and (2) that brandishing is not an enumerated predicate felony within the meaning of section 186.22(e).
Standard of Review
The reviewing courts role in considering an insufficiency of evidence claim is quite limited. (People v. Olguin (1994) 31 Cal.App.4th 1335, 1382.) However, the People are obligated to present evidence supporting every element of the charged offense during its case-in-chief. (People v. Coddington (2000) 23 Cal.4th 529, 597; overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The reviewing court must assess the record in the light most favorable to the judgment (People v. Johnson (1980) 26 Cal.3d 557, 576) and determine whether it discloses substantial evidence. (Id. at pp. 577-578.) Substantial evidence is reasonable, credible and of solid value for each of the essential elements of the offense. (Ibid .) The reviewing court then considers whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (People v. Gamez (1991) 235 Cal.App.3d 957, 977, disapproved on another point in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10.)
Discussion
Both the enhancement provision (§ 186.22, subd. (b)(1)) and the alternate penalty provision (§ 186.22, subd. (d)) of the California Street Terrorism Enforcement and Prevention Act (STEP Act) require the prosecution to prove the charged offense was "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 . . . ." (§ 186.22, subds. (b)(1) and (d).) To prove that defendants gang is a "criminal street gang" within the meaning of the STEP Act, the prosecution must show each of the following distinct elements: (1) that the group is an ongoing organization, association, or group of three or more persons with a common name or common identifying sign or symbol; (2) that has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the enumerated offenses. (§ 186.22, subd. (f); People v. Gardeley, supra, 14 Cal.4th at pp. 616-617.)
Sections 186.20 through 186.33.
The phrase "primary activities," implies that the commission of one or more of the statutorily enumerated crimes is one of the groups "chief" or "principal" occupations. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) "That definition would necessarily exclude the occasional commission of those crimes by the groups members." (Ibid.)
Subdivision (f) which defines "criminal street gangs" further states that the definition of criminal street gang applies "in this chapter." This definition would necessarily pertain to the circumstances surrounding the commission of the public offense committed in section 186.22 subdivisions (b) and (d). Thus, the prosecution was required to prove that the gang had as one of its primary activities the commission of one or more of the criminal acts enumerated in section 186.22, subdivision (e).
The elements of a sentence enhancement must be proved beyond a reasonable doubt if the enhancement increases the maximum punishment. (People v. Sengpadychith, supra, 26 Cal.4th at. p. 325, quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 474-476, 482-484.) Evidence that the groups members consistently or repeatedly committed the crimes listed in the gang statute may be sufficient proof as to the gangs primary activities. Also sufficient is expert testimony, "as occurred in Gardeley [citation]." (People v. Sengpadychith , supra, 26 Cal.4th at p. 324.)
The prosecution relied on the testimony of James Erwin, an officer with the Rampart Special Enforcement Unit, Gang Detail, who testified to the "primary purpose" of the Wanderers gang. Specifically, Erwin testified that the Wanderers were a "notable" street gang known to him through his work at the Rampart Division; that they had approximately 70 documented members; and that their "turf" lay between 3rd and 6th Street to the north and south, and Coronado and Alvarado to the east and west.
When asked by the prosecutor, "[W]hat does this gang do? Whats their activity? Whats the primary purpose?" Erwin replied: "Basically the purpose of a street gang is to — to help understand the definition and the purpose of a street gang, the definition is usually three or more people. They use a common sign or symbol or name. They participate in criminal activity either individually or collectively, and the purpose of (sic) is to create an atmosphere of fear and intimidation to everyone in the neighborhood."
As further proof of the Wanderers "primary activities," respondent claims Erwin testified, "among the crimes a Wanderer committed to increase his status were fist fights with rival gangs, shootings, robbery, and selling narcotics (citations omitted)." The record reveals that Erwin only testified to two specific incidents of criminal activity committed by a known member of the Wanderers: a robbery he was "familiar with" committed by two members of the Wanderers in 2001, and the instant crime, which he opined would definitely "promote or benefit or further" [the] gang.
The testimony that Respondent relies on occurs in a discussion about gang hierarchies and the way to get ahead in a gang. In response to the questions, "are there different levels of membership within the gang?" the testimony reads: A: Yes. [& para;] Q: What are those? [¶] A: [T]here are different levels. Most people are low to mid level. Sometimes there are people that are high level, shot callers. [¶] The way they get there is by doing things for the gang and basically doing things in furtherance of the gang. It could be a minor fight, a fist fight with another gang member. It could be a shooting. It could be a robbery. It could be just selling drugs in the neighborhood. And the more crime that you do, the more you get a name for yourself and the more you move up into the gang."
"[E]vidence of either past or present criminal acts . . . is admissible to establish the statutorily required primary activities" but is not necessarily sufficient proof alone. (People v. Sengpadychith, supra, 26 Cal. 4th at p. 323; see also People v. Gamez, supra, 235 Cal.App.3d at p. 965, disapproved on another point in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10 ["[s]ection 186.22 requires evidence of a gangs past criminal conduct and ongoing criminal nature."]) As far as the Wanderers go, Erwin only testified to one incident of armed robbery by two gang members. He also testified to the instant offense of assault with a deadly weapon. Beyond those two specific incidents, the rest of the evidence of his testimony consisted of speculation as to the primary "purpose" of the Wanderers as a gang. Erwin testified to the type of crime the Wanderers could engage in, but nowhere did he state that the Wanderers actually engaged in any of those activities, let alone engage in them consistently and repeatedly. That was left to inference.
In his testimony, Erwin only mentions "activity" once (see fn. 3). However, Respondent relies on Erwins testimony throughout on the primary "purpose" of criminal street gangs in general to prove that any of the hypothetical crimes could be the primary activity of the Wanderers.
JOHNSON, J., Dissenting.
I concur in the judgment with the exception of the use of a juvenile adjudication as a "strike" to impose a "two-strike" sentence on appellant. For reasons explained in my recent dissenting opinion in People v. Smith, this represents a violation of appellants constitutional rights to due process of law and to jury trial under the U.S. and California constitutions. A recent dissenting opinion by Presiding Justice Rushing of the Sixth District adopts the same view with respect to the denial of appellants right to jury trial under the U.S. Constitution. Notes:
People v. Smith (2003) 110 Cal.App.4th 1072, 1082-1108 (conc. & dis. opn. of Johnson, J.).
People v. Lee (September 11, 2003) 2003 Cal App LEXIS 1419, ___ Cal.App.4th ___, ___-___, (dis. opn. of Rushing, J.).
The Supreme Court in Sengpadychith held that such inference was not sufficient proof of the primary activity of the gang itself. It cited as an example, "[t]hough members of the . . . [p]olice [d]epartment may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department. Section 186.22 . . . requires that one of the primary activities of the group or association itself be the commission of [specified] crime[s]." (People v. Sengpadychith, supra, 26 Cal.4th at pp. 323-324 quoting People v. Gamez, supra, 235 Cal.App.3d at p. 965 disapproved on another point in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10.)
Although much of Erwins testimony was about the culture and habits of criminal street gangs, the standard of sufficiency for expert testimony as to "primary activities" was the "expert testimony as occurred in Gardeley" [citation omitted]. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324). In Gardeley, a "gang expert . . . expressed his opinion that the primary activities of the group in question were drug dealing and witness intimidation, both statutorily listed crimes." Neither of these crimes were charged in Gardeley; they reflected past criminal conduct by members of the gang. (Id. at p. 322.)
While Erwins testimony may be sufficient to support the element of "pattern of gang activity," under the standard enunciated in People v. Sengpadychith, supra. 26 Cal.4th at p. 324, there is a dearth of evidence to support the "primary activity" element of the enhancement. Any fact that increases the penalty for a crime beyond the statutory maximum must be proved beyond a reasonable doubt. (Apprendi v. New Jersey, supra, 530 U.S. 466, 484.)
Although the same crimes could be used to show a pattern of gang activity and demonstrate the "primary activities" of a gang, without a clear showing that the Wanderers as a group "consistently and repeatedly" committed robbery and assault with a deadly weapon, the instant offense could be nothing more than "the occasional commission of [the statutorily enumerated] crimes by the groups members." (People v. Sengpadychith, supra, 26 Cal.4th at p. 323.) As the Supreme Court stated in Sengpadychith, "environmental activists or any other group engaged in civil disobedience could not be considered a criminal street gang under the statutory definition unless one of the primary activities of the group was the commission of one of the [25] enumerated crimes found within the statute." (People v. Sengpadychith, supra, at p. 324, quoting People v. Gamez, supra, 235 Cal.App.3d 957, 965 disapproved on another point in People v. Gardeley, supra, 14 Cal.4th 605, 624, fn. 10, italics added.)
Under the standard set in Apprendi v. New Jersey, supra, 530 U.S. 46, and interpreted in People v. Sengpadychith, supra, 26 Cal.4th 316, there was insufficient evidence to prove beyond a reasonable doubt the "primary activities" element required by § 186.22 subdivision (d).
Because we find there was a failure of proof as to primary activities, we need not examine any alleged instructional error.
DISPOSITION
The judgments for the substantive offenses on counts I, III and V are affirmed. The enhancements imposed pursuant to section 186.22 are set aside. The matter is remanded to the trial court for resentencing.
I concur: PERLUSS, P. J.