Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange CountySuper. Ct. No. 05CF3664, Frank
F. Fasel, Judge. Affirmed.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf, Kristen Kinnaird Chenelia and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
BEDSWORTH, ACTING P. J.
Appellant was convicted of various offenses including attempted robbery and assault. He argues there is insufficient evidence to support the jury’s finding his crimes were gang related. He also contends the trial court committed instructional and evidentiary error and wrongly denied his motion for a mistrial. Finding no basis to reverse, we affirm the judgment.
In his opening brief, appellant also raised a sentencing claim, but he abandoned it in his reply brief.
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Shortly after midnight, Juan Hernandez was biking in Santa Ana when appellant, another man and a woman approached him. The woman walked on to a nearby house, but the men confronted Hernandez with weapons. Appellant pointed a gun at Hernandez’s head, and the other man pulled a knife on him. Then appellant demanded Hernandez’s money. Hernandez began yelling that he had no money and the police were coming. His assailants, apparently disconcerted, relented and walked over to the house into which their female companion had earlier disappeared.
Hernandez biked to the police station, reported the incident and described his assailants. Then he took the police to the house they had entered. Appellant was still there, and Hernandez identified him as the gunman. At trial, Hernandez did not directly identify appellant. However, when shown a photo of appellant, he identified him as the gunman.
Gang expert Edward Esqueda testified appellant is a member of the Orphans gang, and the primary activities of that gang include robbery, armed assault and murder. Esqueda described some of appellant’s prior police contacts and spoke about the culture of gangs and how they operate. He said members are expected to back each other up, and for reasons of trust, they generally do not commit crimes with people who are not in their gang. Loyalty and respect are of the utmost importance in a gang. Respect is earned by committing violent crimes, especially with weapons. When presented with a hypothetical fashioned from the facts of this case, Esqueda opined that if an Orphan gang member and another man demanded money from a victim at gun point, the holdup would be gang related. Not only would the crime enhance the Orphans’ reputation for violence and intimidation, but the acquisition of money would benefit the gang in a more material sense by allowing for the purchase of guns and drugs.
The defense theory was alibi. An expert on eyewitness identification testified as to the factors bearing on the reliability of a victim’s identification, and appellant’s girlfriend testified appellant was sleeping with her at the time of the alleged crimes. Nonetheless, the jury convicted appellant of attempted robbery, possessing a firearm while a felon, street terrorism, assault with a firearm and assault with a knife. It also found appellant personally used a firearm during the attempted robbery and committed that offense and the assaults for the benefit of a gang. The court sentenced him to 12 years and 8 months in prison.
I
Appellant contends there is insufficient evidence that, in attempting to rob and in assaulting Hernandez, he intended to promote or benefit his gang, and therefore his conviction for street terrorism and the gang enhancement findings must be reversed. We disagree.
“‘“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.]’ [Citation.] We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. [Citation.] We may reverse for lack of substantial evidence only if ‘“upon no hypothesis whatever is there sufficient substantial evidence to support”’ the conviction or the enhancement. [Citation.]” (People v. Garcia (2007) 153 Cal.App.4th 1499, 1508 [reviewing sufficiency of the evidence in gang case].) A person is guilty of street terrorism if he or she actively participates in a criminal street gang with knowledge its members have engaged in a pattern of criminal gang activity and “willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . .” (Pen. Code § 186.22, subd. (a).) In addition, “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” is subject to enhanced punishment on the underlying felony. (Pen. Code, § 186.22, subd. (b)(1).) Both the substantive offense of street terrorism and the gang enhancement require that the defendant’s conduct be gang related. (See People v. Castenada (2000) 23 Cal.4th 743, 752; People v. Gardeley (1996) 14 Cal.4th 605, 616-617; People v. Ferraez (2003) 112 Cal.App.4th 925, 930; People v. Ngoun (2001) 88 Cal.App.4th 432, 436; People v. Herrera (1999) 70 Cal.App.4th 1456, 1467.)
In his brief, the Attorney General impliedly conceded this point by not contesting appellant’s assertion of it. However, at oral argument the state’s position seemed to be that street terrorism does not require the crime at issue to be gang related. Our Supreme Court has made it clear the street terrorism prohibition is aimed at “criminal conduct in furtherance of a street gang.” (People v. Castenada, supra, 23 Cal.4th at p. 752.) The requirement that the criminal conduct be gang related ensures that the street terrorism statute does not unconstitutionally extend to street gang participants whose gang involvement is merely nominal or passive. (Ibid.)
In arguing his crimes were not gang related, appellant claims they did not occur in gang territory, “no gang parlance was used, no gang threats were made, no gang signs were thrown, there was no evidence of a retaliation or rivalry motive, and there was no evidence appellant’s companions were gang members.” As for the last circumstance, while there was no evidence — one way or another — as to whether appellant’s partner in crime was a gang member, gang expert Esqueda testified that gang members typically do not commit crimes with people who are not in their gang because they cannot be trusted. Based on this testimony, the jury could infer appellant’s knife-wielding cohort was a member of appellant’s gang.
Esqueda also testified the commission of violent crimes is the primary method by which gang members achieve respect. More specifically, he said that when gang members commit armed robberies it instills fear in, and thus commands the respect of, other gangs. And since respect is alpha and omega to a gang, the robber’s gang would benefit from such acts of violence and intimidation.
Then there is the money factor. Esqueda testified the money obtained in robberies committed by gang members is commonly used to maintain and support their gang. In addition to allowing members to obtain food and shelter, money also enables gang members to purchase guns and drugs. This, in turn, provides members with the means to commit violent crimes. And the commission of such crimes is precisely how members achieve their ultimate goal — respect.
Based on Esqueda’s testimony and the circumstances of appellant’s crimes, there was substantial evidence from which the jury could conclude the offenses were gang related in that they were carried out to promote, further or assist appellant’s gang. While the crimes lacked some of the more common characteristics attendant to gang offenses, and the jury could have based a verdict of not guilty on their absence, there was, as we have explained, substantial evidence to support the verdict they in fact returned. In assessing the sufficiency of the evidence to support a criminal conviction, each case must be decided on its own facts. (People v. Smith (2005) 37 Cal.4th 733, 745.) And because the evidence presented in this case justifies the jury’s verdict on the gang charges, we reject appellant’s challenge to the sufficiency of the evidence.
Appellant also contends the admission of gang evidence rendered his trial fundamentally unfair and violated his due process rights. Because he raised that issue for the first time in his reply brief, the issue has been waived (People v. Baniqued (2000) 85 Cal.App.4th 13, 29), and we do not address it.
II
Next, appellant takes aim at CALCRIM No. 1400, the instruction covering the crime of street terrorism. (See Pen. Code, § 186.22, subd. (a).) He contends that, as given in this case, the instruction implied the crime consists merely of felonious conduct by a gang member and failed to inform the jury that he could only be convicted of street terrorism if his crimes were committed to benefit his gang or were otherwise gang related. We agree, but find the error was not prejudicial under the circumstances presented.
Per CALCRIM No. 1400, the trial court instructed the jury, “The defendant is charged in count 3 with participating in a criminal street gang. To prove that the defendant is guilty of this crime, the People must prove that, number one, the defendant actively participated in a criminal street gang . . .; number two, when the defendant participated in the gang, he knew that the members of the gang engage in or have engaged in a pattern of criminal gang activity; and, number three, the defendant willfully assisted, furthered or promoted felonious conduct by members of the gang.”
Regarding the third element, the court stated “the People must prove that, number one, a member of the . . . gang committed the crime; number two, the defendant knew that the gang member intended to commit the crime; number three, before or during the commission of the crime, the defendant intended to aid and abet the gang member in committing the crime; and number four, the defendant’s words or conduct did, in fact, aid and abet the commission of the crime.”
The Attorney General argues that taken together, these instructions required the subject offense to be gang related in order to convict appellant of street terrorism. But nothing in the instructions specifically or even generally conveyed that notion. In fact, under the above instructions, a gang member could be convicted of street terrorism for helping a fellow gang member murder an enemy, even if the killing was strictly for personal reasons and had nothing to do with the defendants’ gang.
The Attorney General points out that, in addition to giving the above instructions, the court also instructed on the particular felonious conduct that was at issue with respect to the street terrorism charge. As part of CALCRIM No. 1400, the court explained felonious criminal conduct means committing attempted robbery, assault with a firearm or assault with a deadly weapon. The Attorney General also notes that, pursuant to the enhancement allegations, these crimes were alleged to have been gang related. The suggestion is that this somehow carried over to the court’s instructions on street terrorism. However, there was nothing in the court’s instructions on street terrorism that required the jury to find appellant’s crimes were gang related in order to convict him of that offense. Therefore, the instructions were inadequate in that regard.
As it turned out, though, the jury did find appellant’s crimes to be gang related for purposes of the enhancement allegations. Specifically, it determined appellant committed the offenses “for the benefit of, at the direction of, or in association with, Orphans, a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by members of that gang, pursuant to Penal Code section 186.22(b)(1).” Having reached this conclusion, the jury could not logically have found appellant’s crimes were not gang related for purposes of the street terrorism charge. Since the jury necessarily resolved the factual, gang-relatedness issue adversely to appellant under other properly given instructions, the court’s failure to address it in its instructions on street terrorism constitutes harmless error. No cause for reversal has been shown. (See People v. Hardy (1992) 2 Cal.4th 86, 192-193 [failure to instruct on requisite intent for special circumstance deemed harmless where jury necessarily found defendant possessed such intent under other properly given instructions].)
III
Lastly, appellant claims the court erred in denying his motion for a mistrial based on spectator misconduct and in allowing testimony about witness intimidation. He claims the misconduct and evidence infringed his fair trial rights and violated due process, but we cannot agree.
Shortly after Hernandez failed to identify appellant in court, the court took a recess and appellant moved for a mistrial. In explaining what prompted the motion, the court stated that after Hernandez was unable to identify appellant, “a young man seated in the last row of the courtroom[] became extremely histrionic and moved forward in his seat, on the edge of the seat, and was laughing and [] making punching motions [] with his fist and arms, and then raising both arms above his head in exultation. [] [¶] At that point in time, since he was essentially in contempt of court, the court directed him, as the bailiffs were moving towards him, out of the courtroom because I didn’t want the jury to have an opportunity to see what he was doing.”
The court denied the mistrial motion and granted the prosecutor’s request to conduct an Evidence Code section 402 hearing as to whether Hernandez had been intimidated by the spectator. During the hearing, Hernandez testified the spectator had been looking at him “really well,” in an intense, angry stare. Hernandez said this caused him to fear for his safety and to change his testimony. However, on cross-examination he claimed it had nothing to do with his failure to identify appellant.
The court did not believe this was a sufficient foundation for the introduction of evidence on the issue of witness intimidation. However, it left the door open on the issue and resumed the trial. Hernandez reiterated his early testimony that he did not see the gunman in the courtroom. He was then asked to identify a photograph of himself that was taken on the night of the incident. After doing so, he began to cry and the court took a recess.
The court then reopened the 402 hearing. Hernandez testified he was crying because he was remembering what happened to him on the night in question, not because anyone had threatened him. He also said that the antics of the spectator did not cause him to change his testimony and that he did not recognize the gunman in the courtroom. In the end, the court determined the spectator’s behavior was irrelevant in and of itself and instructed the jury to disregard it. However, the court found the spectator’s antics were relevant to the extent they may have affected Hernandez’s credibility. It therefore allowed the prosecution to elicit testimony on this issue.
When the trial resumed, Hernandez told the jury the spectator had been staring at him in an angry fashion during his earlier testimony, before he was asked if he could identify appellant. Hernandez said the staring caused him concern because “they look at you really, really hard and then they recognize your face and then outside they can beat you up.” However, Hernandez said the spectator did not affect his testimony.
Hernandez was then shown a photograph of appellant. He said the person pictured was the guy who put the gun to his head, and then he identified the pictured person as appellant. Hernandez said the picture jarred his memory of the gunman because it provided a close-up look of appellant’s face. According to Hernandez, it was the picture — and not the spectator’s staring — that caused him to change his testimony on the identification issue.
Esqueda subsequently testified that the spectator was a member of appellant’s gang and that gang members often attend the trials of their fellow members in order to intimidate witnesses and get them to recant their statements. He said intense staring, known as “mad-dogging,” is one way in which gang members try to intimidate others.
Based on the foregoing, appellant contends it was wrong for the court to deny his motion for a mistrial based on spectator misconduct and allow Esqueda to testify about witness intimidation. We review both of these decisions under the deferential abuse of discretion standard. (See People v. Chatman (2006) 38 Cal.4th 344, 369 [spectator misconduct]; People v. Alvarez (1996) 14 Cal.4th 155, 201 [admissibility of evidence].)
The Attorney General correctly observes, “‘Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to [his or] her credibility and is well within the discretion of the trial court. [Citations.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 946.) Appellant argues Esqueda’s testimony about witness intimidation was inadmissible because there is no evidence appellant authorized or had control over the spectator’s antics. However, “[i]t is not necessary to show . . . the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible.” (People v. Gutierrez (1995) 23 Cal.App.4th 1576, 1588.) The key is not whether the evidence reflects on the defendant’s guilt, but whether it explains the witness’ performance on the stand. We find no indication the jury was somehow incapable of evaluating the existence vel non of any proved connection between Hernandez and appellant.
Esqueda’s testimony about witness intimidation was helpful to explain why Hernandez, having identified appellant in the field, did not identify him at trial. Although Hernandez testified the spectator’s antics had nothing to do with his failure to identify appellant, he did admit that the spectator caused him concern. Of course, it was up to the jury to sort out Hernandez’s testimony and evaluate his credibility. Esqueda’s testimony was quite relevant in this regard, and while it related to appellant’s gang status, it was not unduly prejudicial. Appellant’s gang status was never disputed, and because of the nature of the charges, it was inevitable that a considerable amount of gang evidence would be presented to the jury. All things considered, the trial court did not abuse its discretion in admitting the challenged evidence and denying appellant’s motion for a mistrial; no due process or fair trial violation has been shown.
The judgment is affirmed.
WE CONCUR: MOORE, J., FYBEL, J.