Opinion
B227589
02-02-2012
THE PEOPLE, Plaintiff and Respondent, v. MARCUS SHANE DEHERRERA, Defendant and Appellant.
Katharine Eileen Greenbaum, 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, Scott A. Taryle and Michael C. Keller, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MA042977)
APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa Mangay Chung, Judge. Affirmed in part, reversed in part, vacated in part, and remanded with directions.
Katharine Eileen Greenbaum, 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, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Marcus Shane Deherrera appeals from the judgment entered following his convictions by jury on three counts of second degree robbery (Pen. Code, § 211; counts 4 - 6), count 7 - dissuading a witness by force or threat (Pen. Code, § 136.1, subds. (b) & (c)(1)) and count 8 - assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) with a finding as to each offense he committed it for the benefit of a criminal street gang (former Pen. Code, § 186.22, subd. (b)(1)). The court sentenced appellant to prison for life with the possibility of parole, plus 23 years 8 months. We affirm the judgment, except we reverse it in part, vacate appellant's sentence, and remand the matter for resentencing with directions.
Appellant's prison sentence consisted of (1) life with the possibility of parole on count 7, plus (2) the five-year upper term on count 4 plus 10 years for its gang enhancement, (3) a consecutive subordinate term of one year on count 5 plus three years four months for its enhancement, (4) a consecutive subordinate term of one year on count 6 plus three years four months for its enhancement, and (5) a concurrent upper term of four years on count 8 with a concurrent term of five years for its enhancement.
FACTUAL SUMMARY
1. The April 13, 2008, Offenses (Counts 4 - 6).
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which as to the substantive offenses is undisputed, established that on April 13, 2008, Mary Correa and her son (hereafter, Minor) lived at her Palmdale home. Between 9:00 and 9:30 p.m. on that date, Minor and his friend Amanda Banuelos were in front of Minor's home. Appellant and Michael Lynch exited a car and committed strong-arm robberies of Minor (count 4) and Banuelos (count 5). Lynch was the direct perpetrator and appellant was his accomplice. About 9:30 p.m. on April 13, 2008, appellant and Lynch committed a strong-arm robbery of Luis Aguilar (count 6) in Palmdale.
Los Angeles County Sheriff's Deputy Tyrone Berry, a gang expert and the investigating officer in this case, testified as follows. Berry was assigned to the Palmdale station as a gang detective and the unit he was assigned to handled all criminal street gangs in Antelope Valley. The Los Compadres Varrio gang (LCV) was a Hispanic criminal street gang associated with the Mexican Mafia. LCV had 70 documented members. The gang's primary activities included, inter alia, shootings, street robberies, and assaults with firearms. Appellant was an LCV member. Berry did not find any gang tattoos on appellant. Lynch was a member of the A.V. Skinheads gang, a White supremacist gang.
We take judicial notice Palmdale is in Antelope Valley. (Cf. Ogle v. Superior Court (1992) 4 Cal.App.4th 1007, 1012, fn. 2; Evid. Code, §§ 452, subd. (h), 459.) If appellant disputes our taking of judicial notice of this fact, he may furnish this court with appropriate information in a petition for rehearing. This procedure is deemed sufficient compliance with the requirement of Evidence Code section 459, subdivision (c). (People v. Hallman (1973) 35 Cal.App.3d 638, 641, fn. 1.)
In response to a hypothetical question, Berry testified the robberies of Minor, Banuelos, and Aguilar were committed for the benefit and furtherance of LCV. Fear and intimidation were used in the above crimes, and gang members used fear and intimidation to create terror throughout the community. LCV benefited when its members committed serious or violent crimes against the public because the commission of such crimes built the gang's reputation for being violent and notorious. This reputation assisted LCV's recruitment efforts. Gang members generated revenue by committing robberies, and frequently the fruits of such robberies were shared among the gang members. In the present case, the perpetrators were looking for anything valuable which they could sell or pawn to generate revenue.
The prosecutor, without objection by appellant, asked Berry to "explain to me how Skinheads would end up working with L.C.V. members if L.C.V. members are Hispanic gangs[.]" Berry replied, "In this particular case, my investigation led me to find that Michael Lynch and Marcus Deherrera are friends. I found calls for service from Palmdale sheriff's station where they . . . have been contacted together on numerous occasions." The following colloquy occurred between the prosecutor and Berry without objection: "Q . . . Have you come across a time where White supremacist gangs are hanging out with gangs that are nonwhite? [¶] A Yes. [¶] Q And is this one of those times? [¶] A Yes."
Berry understood appellant may have simply brought Lynch to the scene of the robberies of Minor and Banuelos, and Berry understood that appellant, at that scene, simply stood behind Lynch. However, in gang culture, when a gang member was with (1) a person who associated with the gang, or (2) a friend who was in a gang, there was an expectation concerning that person or friend. For example, if one gang member committed robbery, and his friend, who was also a gang member, was standing next to him at the time, the expectation would be that each would support the other. 2. The July 18, 2008, Offenses (Counts 7 & 8).
On July 18, 2008, Correa was outside her Palmdale home when a car drove up. Shortly thereafter, codefendant Peter Kamekona was standing behind her. Kamekona said, " 'This was a warning,' " (count 7). Kamekona then, using a shiny object, slashed Correa's stomach, leaving a nine-inch wound (count 8). Correa's daughter approached, and appellant, the driver of the car, said someone was coming. Kamekona returned to the car and appellant and Kamekona drove away.
Kamekona is not a party to this appeal.
Berry testified as follows. Kamekona was a member of the Young Boyz Rifa gang (YBR), and was not a member of LCV. Correa told Berry that her attacker, Kamekona, had a tattoo on the right side of his neck. Berry had seen Kamekona's tattoos. Kamekona had a tattoo of the letter L on the back of his neck at the hairline.
According to Correa, Deherrera's booking photo did not reflect tattoos on his neck.
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At trial, the prosecutor asked Kamekona to pull his collar back so the tattoo on his neck was visible, Kamekona did so, but Berry could not see the tattoo from the witness stand. Berry later approached Kamekona in the courtroom, looked at the tattoo, and testified the tattoo was the word Helen.
Berry also testified that a tattoo on Kamekona's "right side" reflected the letters YBR, which stood for Young Boyz Rifa. When arrested on September 2, 2008, Kamekona was with LCV members.
In response to a hypothetical question, Berry testified the statement " 'This is a warning,' " and the subsequent slashing at Correa, were for the benefit of LCV. Witness intimidation deterred witness cooperation in criminal proceedings and instilled fear throughout the entire neighborhood with the result gang members had greater freedom to commit future crimes. An attacker who cut someone with a weapon committed the act for the benefit of a gang because the attacker's intent was to deter the witness from testifying.
When gang members committed a crime against a rival gang, the gang members typically would yell their gang names to the rival gang, but when gang members committed crimes against the public, the gang members typically would not yell their gang names. Nonetheless, when gangs committed crimes against the public, the neighborhoods, and other gang members, would know. Berry surveyed neighbors to determine if they were aware of the assault against Correa, and Berry determined the neighbors were afraid. Berry had no information that anyone shouted a gang name or threw gang signs during the April 13, 2008, or July 18, 2008, incidents.
ISSUE
Appellant claims there is insufficient evidence supporting the true findings as to the gang enhancement allegations.
DISCUSSION
The True Findings as to the Gang Enhancement Allegations Were Not Supported by Sufficient Evidence.
Appellant claims as previously indicated. His claim is well-taken. Former Penal Code section 186.22, subdivision (b)(1) is part of the California Street Terrorism Enforcement and Prevention Act (STEP Act). (People v. Albillar (2010) 51 Cal.4th 47, 54 (Albillar).) Our Legislature included the requirement that the crime to be enhanced be committed for the benefit of, at the direction of, or in association with a criminal street gang to make it clear a criminal offense is subject to increased punishment under the STEP Act only if the crime is gang-related. (Id. at p. 60.)
In the present case, there is no dispute appellant committed the substantive offenses of which he was convicted as to counts 4 through 6, 7, and 8. The issue is whether they were gang-related, i.e., whether they were committed for the benefit of, at the direction of, or in association with, a criminal street gang. Moreover, there is no dispute there was insufficient evidence appellant committed those offenses at the direction of a criminal street gang. The remaining issue is whether appellant committed them for the benefit of, or in association with, such a gang.
Not every crime committed by gang members is gang-related for purposes of former Penal Code section 186.22, subdivision (b)(1). (Albillar, supra, 51 Cal.4th at p. 60.) In particular, the mere fact gang members commit a crime together does not mean the crime is gang-related for purposes of the STEP Act. (Id. at p. 62.)
1. Insufficient Evidence Supported the Gang Enhancements as to Counts 4 through 6.
We first focus on the gang enhancements pertaining to the offenses at issue as to counts 4 through 6 (hereafter, counts 4 through 6). As to whether appellant committed those counts for the benefit of a gang, we note the following.
Appellant and Lynch were members of completely different gangs. Appellant was an LCV member and Lynch was an A.V. Skinheads member. There was no substantial evidence appellant or Lynch wore gang tattoos which were visible to the crime victims or anyone else, or which therefore communicated to anyone that appellant or Lynch was a gang member. In fact, Berry testified he found no gang tattoos on appellant. There was no substantial evidence appellant or Lynch communicated to the crime victims or anyone else by words, gang signs, or otherwise, that appellant or Lynch was a gang member.
Berry was an expert concerning Antelope Valley gangs, and Palmdale is in Antelope Valley, but Berry did not explicitly testify, and there was no substantial evidence, that LCV or A.V. Skinheads was an Antelope Valley or Palmdale gang. There was no substantial evidence as to what, if any, territory the LCV or A.V. Skinheads claimed. Nor, therefore, was there substantial evidence appellant committed counts 4 through 6 in territory claimed by LCV or the A.V. Skinheads. Counts 4 through 6 were committed in Palmdale. Absent Berry's expert opinion testimony, discussed below, there was no substantial evidence appellant committed counts 4 through 6 for the benefit of LCV or any criminal street gang.
Nor, as we discuss below, does Berry's expert opinion testimony, alone or in combination with other evidence, provide substantial evidence appellant committed counts 4 through 6 for the benefit of LCV or any gang. Berry opined, as pertinent here, that counts 4 through 6 were committed for the benefit of LCV. Even Berry did not testify the offenses were committed for the benefit of A.V. Skinheads.
In People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), our Supreme Court stated, "Generally, an expert may render opinion testimony on the basis of facts given 'in a hypothetical question that asks the expert to assume their truth.' [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence, however. [Citations.] [¶] Expert testimony may also be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. (Evid. Code, § 801, subd. (b); [Citations].) Of course, any material that forms the basis of an expert's opinion testimony must be reliable. [Citation.] For 'the law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based.' [Citation.]" (Gardeley, at p. 618, italics added.)
After opining the crimes were committed for the benefit of LCV, Berry appeared to testify as to the basis for his opinion. He testified fear and intimidation were used in the crimes, and gang members used fear and intimidation to create terror throughout the community. However, counts 4 through 6 were robberies. Fear, or at least force or fear, is an element of every robbery (Pen. Code, § 211). Fear is generally synonymous with intimidation. (Cf. People v. Davison (1995) 32 Cal.App.4th 206, 211-216.) Fear is therefore frequently part of a robbery whether or not the robbery is gang-related.
Moreover, there is no substantial evidence anyone knew about counts 4 and 5 other than appellant, Lynch, Minor, Banuelos, and perhaps Correa, and no substantial evidence anyone knew about count 6 other than appellant, Lynch, and Aguilar. In sum, absent Berry's opinion, there was no substantial evidence as to those counts appellant and/or Lynch, who were members of different gangs, used fear or intimidation to create terror among anyone other than the victims of those counts and perhaps Correa.
Berry also testified LCV benefited when its "members" committed serious or violent crimes against the public. However, counts 4 through 6 did not involve LCV "members." Only one LCV member was involved in counts 4 through 6 -- appellant. Moreover, there was no substantial evidence that members of the public were percipient witnesses of the crimes, were otherwise actually aware of them, or that any member of the public other than the victims, appellant, and Lynch were aware the crimes had been committed. Berry testified gang members generate revenue by committing robberies, but that is largely true of robbers in general.
The prosecutor asked Berry to "explain to me how Skinheads would end up working with L.C.V. members if L.C.V. members are Hispanic gangs[.]" However, there was no substantial evidence Skinheads worked with LCV members. There was only evidence one Skinhead, Lynch, worked with one LCV member, appellant. And Berry's response focused on Lynch, appellant, and no one else. Moreover, Berry testified appellant and Lynch were friends. This supported an inference the latter two had acted simply as friends and not as gang members involved in gang-related action. Berry indicated appellant and Lynch had been contacted on numerous occasions together, but Berry did not testify those occasions were gang-related.
As mentioned, the following colloquy occurred between the prosecutor and Berry. "Q [By the prosecutor:] Have you come across a time where White supremacist gangs are hanging out with gangs that are nonwhite? [¶] A Yes. [¶] Q And is this one of those times? [¶] A Yes." (Italics added.) Beyond the fact this exchange was not a model of clarity, it did not provide substantial evidence counts 4 through 6 were committed for the benefit of LCV. The initial question and answer focused on whether there was "a" time White supremacist "gangs" "hang[ed] out" with nonwhite "gangs." However, the only evidence in the present case was that Lynch, a single member of a single White supremacist gang, "hanged out" with appellant, a single member of a single nonwhite gang.
The prosecutor then asked, "And is this one of those times?" and Berry replied, yes. Berry thus testified that "this" -- apparently a collective reference to counts 4 through 6 -- was a time White supremacist "gangs" "hang[ed] out" with nonwhite "gangs." Again, however, the only evidence was that Lynch, a single member of a single White supremacist gang, "hang[ed] out" with appellant, a single member of a single nonwhite gang.
Berry testified he understood appellant may have simply brought Lynch to the scene of the robberies of Minor and Banuelos, and that appellant, at that scene, simply stood behind Lynch. Berry testified to the effect that, in gang culture, if one gang member committed robbery, and his friend, who was also a gang member, was standing next to him at the time, the expectation would be that each would support the other. However, that testimony by Berry did not make clear whether the expectation of those two persons was based on their relationship as friends or as gang members, and did not make clear whether those two persons were members of the same gang.
Berry's expert opinion testimony appellant committed counts 4 through 6 for the benefit of LCV lacked an adequate basis in the evidence and/or in material of a type reasonably relied upon by a gang expert. We conclude there was no substantial evidence appellant committed count 4, 5, or 6 for the benefit of LCV or any criminal street gang.
2. Insufficient Evidence Supported the Gang Enhancements as to Counts 7 and 8.
A similar analysis applies to the gang enhancements pertaining to the crimes at issue as to counts 7 and 8 (hereafter, counts 7 and 8). There is no dispute there was insufficient evidence appellant committed those offenses at the direction of a criminal street gang. The remaining issue is whether appellant committed them for the benefit of, or in association with, such a gang.
Like appellant and Lynch, appellant and Kamekona were members of completely different gangs. Appellant was an LCV member and Kamekona was a YBR member. There was no substantial evidence appellant or Kamekona wore gang tattoos which were visible to Correa or anyone else, or which therefore communicated to anyone that appellant or Kamekona was a gang member. In fact, Berry testified the tattoo on the back of Kamekona's neck was the word Helen. There was no substantial evidence appellant or Kamekona communicated to Correa or anyone else by words, gang signs, or otherwise, that appellant or Kamekona was a gang member.
Berry did not explicitly testify LCV or YBR was an Antelope Valley or Palmdale gang. There was no substantial evidence as to what, if any, territory LCV or YBR claimed. Nor, therefore, was there substantial evidence appellant committed count 7 or 8 in territory claimed by LCV or YBR. Absent Berry's expert opinion testimony, discussed below, there was no substantial evidence appellant committed count 7 or 8 for the benefit of LCV or any criminal street gang.
Nor, as we discuss below, does Berry's expert opinion testimony, alone or in combination with other evidence, provide substantial evidence appellant committed count 7 or 8 for the benefit of LCV or any gang. Berry opined, as pertinent here, counts 7 and 8 were committed for the benefit of LCV. Even Berry did not testify the offenses were committed for the benefit of YBR.
In response to a hypothetical question, Berry testified the statement " 'This is a warning,' " and the subsequent slashing at Correa, were for the benefit of LCV. Berry appeared to testify as to the basis for his opinion. He testified witness intimidation deterred witness cooperation in criminal proceedings and instilled fear throughout the entire neighborhood with the result gang members had greater freedom to commit future crimes.
However, witness intimidation deters witness cooperation whether or not the criminal is a gang member. There was no substantial evidence anyone in the neighborhood knew about count 7 or 8 other than appellant, Kamekona, and Correa. In sum, absent Berry's opinion, no evidence was presented appellant and/or Kamekona, who were members of different gangs, used witness intimidation to instill fear throughout the entire neighborhood. Berry also testified an attacker who cut someone with a weapon committed the act for the benefit of a gang because the attacker's intent was to deter the witness from testifying. However, an attacker could harbor that intent whether or not the attacker was a gang member or attacking for the benefit of a gang.
Berry testified that when gang members committed crimes against the public, the neighborhoods, and other gang members, would know. However, this was simply Berry's unsupported opinion and speculation. Berry testified he surveyed neighbors to determine if they were aware of the assault against Correa, and he determined the neighbors were afraid. However, Berry did not testify he surveyed neighbors to determine if they were aware the assault was gang-related, and did not testify he determined the neighbors were afraid because the assault had been gang-related.
Berry's expert opinion testimony appellant committed counts 7 and 8 for the benefit of LCV lacked an adequate basis in the evidence and/or in material of a type reasonably relied upon by a gang expert. We conclude there was no substantial evidence appellant committed count 7 or 8 for the benefit of LCV or any criminal street gang.
In light of the above, we will affirm the judgment, except we will reverse the true findings as to the gang enhancements, vacate appellant's sentence, and remand the matter for resentencing. (Cf. People v. Ramon (2009) 175 Cal.App.4th 843, 858.) We express no opinion as to what, following remand, appellant's sentence or any component thereof should be.
DISPOSITION
The judgment is affirmed, except appellant's sentence is vacated, the true findings as to the former Penal Code section 186.22, subdivision (b)(1) allegations are reversed, and the matter is remanded for resentencing consistent with this opinion. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment following resentencing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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KITCHING, J.
We concur:
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KLEIN, P. J.
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ALDRICH, J.