Opinion
A130268
08-17-2011
In re Danny J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. Danny J., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. J39551)
Danny J. was committed to the Department of Juvenile Justice after the court sustained allegations that he committed a home invasion robbery and an attempted home invasion robbery, enhanced due to his participation in a criminal street gang and personal use of a gun. His contention that the evidence was insufficient to support the criminal street gang enhancement is meritless. However, he raises several valid claims of sentencing error, which the People properly concede. We therefore reverse the judgment in part and remand the case to the juvenile court for resentencing.
BACKGROUND
The Robbery
Steven W. and several of his friends were hanging out in Steven's garage in Fairfield when Danny and another boy approached the driveway. Steven recognized Danny from school. He was wearing a hooded jacket with the hood down and Steven could see his face. Steven asked, "What's up, Danny?"
Danny and the other boy, M.D., pulled their hoods over their heads and entered the garage. M.D. pulled out a revolver, pointed it at Steven's stomach and told him to "give me whatever you got or I will shoot you." Steven put his hands up. Danny went around to the other people in the garage and told them to empty their pockets "or I will bust a cap in your ass." Danny took Steven's cell phone. He also took a baggie containing an ounce of marijuana from Steven's backpack. M.D. tried to grab a wallet from Steven's friend Earl L., but Earl refused to give it up even when M.D. pointed the gun at his face. Danny and M.D. fled after the robbery.
Steven identified M.D. in a photo lineup. Police searched M.D.'s house and found a black revolver hidden in his sister's bedroom.
Cedric M. was on his way to Steven's house that afternoon. He could not see into the garage as he approached because the garage door was pulled down low. Two men were standing outside - one near some bushes, and one by a van - looking toward the garage. Cedric later identified them as Kenneth E.-V. and Trevon L.-D. The garage door swung open and two men ran out as Cedric walked up the driveway.
Danny, M.D., and Kenneth were interviewed by the police. At one point the three were alone in the interview room and their conversation was monitored by police officer Kelly Rombach. He testified that M.D. said, "They got no evidence, they don't have shit." Danny responded, "They witnesses on you, N---a. That means they are going to put me in jail [be]cause I was there too." M.D. also asked, "What you all going to go to jail for?" Danny said, "[bec]ause we were with you." M.D. retorted, "Thought you said you weren't with me." Danny responded, "We are going to jail. They know you were there. We were with you. They have witnesses on all of us. They know you brought a fucking gun. They know you stole a fucking phone and all they want is the fucking phone back." Later in the conversation, M.D. told the other boys, "I am going to tell them n---as I ran in that garage and I took that n---a's phone." Danny responded, "they don't know about that garage. They didn't mention anything about no garage." Danny also said "I grabbed everybody's phone, but I was like fuck that" and gave them back. He also said the boys intended to split the profit from the robbery, but M.D. went overboard by taking a phone.
Danny testified in his own defense. He denied being in Steven's garage or taking his phone or marijuana. He said he waited outside the garage while M.D. and Trevon went inside to buy marijuana, and fled with them because they told him to. He also contradicted Officer Rombach's description of the conversation in the interview room.
During the prosecutor's rebuttal case, Officer Rombach testified that the conversation was recorded. According to Officer Rombach, Danny said: "I grabbed everyone's phone but I gave them back. I was like fuck that. I know we took part in that shit, n---a. N---a, we split in half of what the profit was, n---a. He went overboard by getting phones." Danny also said, "We are going to jail. They have witnesses on you, on all of us. They know you brought a fucking gun. They know you stole a fucking phone. That is all they want is the fucking phone" and "No more mob. We about to have stay away orders from each other."
Gang Evidence
Fairfield Police Officer Brian Gassen testified as a gang expert, and in particular as to the "Mainey Boys" street gang. He testified that the Mainey Boys have 20 known and documented members, and about 100 other associates. Mainey Boys is a profit-oriented gang whose primary activities are burglaries, robberies, grand theft, violence including assaults, assaults with weapons, gun play, and drug deals. Gassen identified Danny, M.D., Kenneth, and Trevon, as members of the Mainey Boys gang.
The prosecutor posed the following hypothetical to Officer Gassen. "There is a robbery that occurs, and committed by at least two Mainey Boys, that go into a garage, one of them with a gun. And the other individual says some things, requesting property from individuals that are being robbed. And two other individuals are also outside of that garage acting as lookouts." Based on this scenario, Officer Gassen opined that the crime would benefit the Mainey Boys gang "[t]hrough fear and reputation, also through maybe profit if they got something, fear, by instilling fear into the victims, instilling fear into the citizens around that hear about this, the fact that they are using force, weapons, citizens are going to be more reluctant to come to the police department for fear because they are afraid that these guys have guns now and they are not afraid to use them. [¶] Profit [be]cause they are going to gain by this, they are going to get ulterior monetary value. There will be an object or money or they could sell to earn money." A gang member's status rises within the gang when he commits violent acts.
Officer Gassen also opined that robberies committed by more than one gang member are done in association with the gang itself. His opinion was also based on the fact that one of the gang's primary activities is committing robberies. In addition, committing robberies with a gun makes it easier for the gang to commit future crimes because it instills fear in the community and makes victims afraid to call the police. Even if the perpetrators don't identify themselves as Mainey Boy members during a robbery, the word usually gets around that the gang was responsible. Gang members will post blogs on MySpace and tell other Mainey Boys about their participation in a crime to build up their status in the gang.
Jurisdiction and Disposition
The court sustained the robbery and attempted home invasion robbery allegations and found true the criminal street gang allegation under Penal Code section 186.22, subdivision (b)(1)(C) and the gun use allegation under sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (b). The court set the maximum term of confinement at 47 years, five months, and committed Danny to the Department of Juvenile Justice for 10 years pursuant to Welfare and Institutions Code section 731, subdivision (c). This appeal timely followed.
Unless otherwise noted, further statutory citations are to the Penal Code.
DISCUSSION
I. Sentencing Error
Danny raises three meritorious claims of sentencing error, all of which the People appropriately concede. Accordingly, we need discuss them only briefly.
First, Danny contends the court erred when it sustained a 10-year gang enhancement as to the attempted robbery count. He is correct. In relevant part, section 186.22, subdivision (b)(1) provides that: "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, 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 as follows: [¶] . . . [¶] (B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years. [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years."
Although attempted robbery is a serious felony as defined by section 1192.7, it is not a violent felony listed in section 667.5. Therefore, the 10-year enhancement imposed under section 186.22, subdivision (b)(1)(C) is not supported and must be stricken. On remand, the court may consider whether to impose the five-year enhancement provided by section 186.22, subdivision (b)(1)(B). (See People v. Rodriguez (2009) 47 Cal.4th 501, 509-510.)
Second, the section 12022.5 enhancement for Danny's personal use of a firearm imposed as to the robbery count must also be stricken. Section 12022.5, subdivision (a) states that "any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years . . ." But this enhancement may be imposed only when the defendant himself used a firearm in the commission of the charged crime; its reach does not extend to a co-participant who did not personally use a gun. (People v. Cole (1982) 31 Cal.3d 568, 575; People v. Walker (1976) 18 Cal.3d 232, 243.) Here, the only person who used a gun during the robbery was M.D. There was no evidence Danny used a gun. Accordingly, this 10-year enhancement was also improperly added to Danny's maximum term of confinement.
Danny acknowledges that the section 12022.53, subdivision (b) enhancement does not have a similar personal use requirement.
Third, the court also erred when it added 10-year enhancements to the robbery count for both the section 186.22, subdivision (b)(1)(C) gang enhancement and the section 12022.53 gun use enhancement. Although a principal who personally uses a gun during a gang-related crime can be punished under both provisions, a principal who does not personally use a gun, like Danny, may only be punished under one provision, not both. (People v. Brookfield (2009) 47 Cal.4th 583, 590, 593-594.) Accordingly, one of these enhancements must be stricken on remand.
II. The Gang Enhancement Is Supported By Sufficient Evidence
Danny's assertion that the evidence was insufficient to support imposition of the section 186.22, subdivision (b) gang enhancement has less merit. Specifically, he contends the evidence fails to establish that the crime was committed in association with or for the benefit of a criminal street gang. We disagree.
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] 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. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
Albillar, supra, explains that "the Legislature included the requirement that the crime be enhanced be committed for the benefit of, at the direction of, or in association with a criminal street gang to make it 'clear that a criminal offense is subject to increased punishment . . . only if the crime is "gang related." ' " (51 Cal.4th at p. 60.) Here, all four of the boys involved in the robbery were identified as members of the Mainey Boys street gang. Officer Gassen testified that robberies committed by more than one member of the gang are done in association with the gang itself, because "Mainey Boy members, usually they will commit crimes together, safety always in numbers. They are going to have lookouts, you know, so they work together. They are not going to work other members who are not in their group because they have a trust circle, they only trust those people within the gang." This description fits the evidence of the home robbery here. Two gang members acted as lookouts while Danny and M.D. committed the robbery, and M.D. threatened the victims with a gun. Officer Gassen testified that committing a crime with fellow gang members instills fear in the gang's victims, particularly when weapons are involved, and discourages members of the public from going to the police. His testimony provides adequate support for a finding that Danny carried out the crime in association with the Mainey Boys gang.
The evidence was also sufficient to prove the crime was committed to benefit the Mainey Boys gang. Officer Gassen testified the robbery would financially reward the gang and provide benefit by spreading the gang's reputation for violence, which would discourage citizens from going to the police "because they are afraid that these guys have guns now and they are not afraid to use them." Thus, the gang could conduct other crimes in the future with less resistance. Although the perpetrators did not identify themselves as Mainey Boys during the robbery, Officer Gassen testified that the word usually gets around after a crime that the gang was responsible. The crime also benefits the gang by elevating the individual status of the responsible members within the gang.
Substantial evidence supports the finding that Danny committed the crimes in association with and for the benefit of a criminal street gang.
DISPOSITION
The judgment is reversed due to the errors identified in this opinion and the case is remanded to the juvenile court for resentencing. (See People v. Rodriguez, supra, 47 Cal.4th at pp. 509-510.) The judgment is affirmed in all other respects.
Siggins, J. We concur: McGuiness, P.J. Pollak, J.