Opinion
G054299
01-31-2018
THE PEOPLE, Plaintiff and Respondent, v. TRAYVONTE DASHAWN GARNETT, Defendant and Appellant.
Law Offices of John F. Schuck and John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Lynne G. McGinnis and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15WF0444) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Law Offices of John F. Schuck and John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Lynne G. McGinnis and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Trayvonte Dashawn Garnett of three commercial burglaries and found true three related gang allegations. In this appeal, Garnett argues there was insufficient evidence to sustain the gang allegations.
We disagree and affirm the judgment
I
FACTS AND PROCEDURAL BACKGROUND
On January 21, 2015, at about 2:20 a.m., a Radio Shack store in Seal Beach was burglarized. A surveillance video showed a car backing up to the front of the store and a window being shattered. Garnett, Robbie Ross, and two other men entered the store. The men broke display cases and took over $2,000 worth of electronic equipment.
About 25 minutes later, a Verizon Wireless store in Fountain Valley was burglarized. A surveillance video showed a front window being shattered. Garnett, Ross, and two other men entered the store. The men pried open a locked door to a back room and took over $3,000 worth of electronic equipment.
On February 17, 2015, at about 4:45 a.m., a Radio Shack store in Cypress was burglarized. A witness saw a Toyota Camry "parked with its trunk closest to the store." The bottom half of the glass front door was shattered. It was later discovered that glass display cases had been smashed and about $3,400 worth of electronic merchandise had been stolen. Officer Erik Carlson responded to the store's burglar alarm in his patrol vehicle. Carlson saw a "blacked out" Toyota Camry driving away from the store with three males in it. Carlson followed the Camry to a residential dead-end street. The Camry then came towards Carlson's patrol vehicle, passed it, and then eventually crashed into an electrical pole.
Carlson and other officers detained Garnett, who was in the driver's seat. Police searched the area, but found no one else. Inside of the car, police found electronic merchandise that had been taken from the Radio Shack. The police also found two wallets in the car's console. One of the wallets belonged to Ross; the other belonged to Matthew Jones, who had rented the Camry. The police also found other items in or near the Camry, including: bolt cutters, a crow bar, and a black ski mask.
Gang Evidence
Los Angeles Sheriff's Detective Shawn Young testified at trial as the prosecution's gang expert. Young had worked for the Sheriff's Department for 22 years and had received over 440 hours of gang training. Young had interviewed more than 1,500 gang members and had been involved in more than 700 gang investigations. Young's current assignment was as a lead gang investigator for the City of Carson.
Detective Young was familiar with the Stevenson Village Crips. Young said the gang has about 74 members and it is named after a housing tract, which the gang claims as its territory within the City of Carson. Young testified the gang uses the acronym SVCC, which it displays in the gang's graffiti. Young said the gang's primary activities include "robbery, carjacking, firearm-related assaults, burglary, assaults on peace officers, extending all the way to murder." Young testified as to two predicate crimes (second degree burglary and felon in possession of a weapon) committed by two gang members (Raykell Calloway and Brian Eason).
Detective Young said that he knew Garnett and had contacted him on at least two prior occasions, which Young had documented on field interview cards. On one occasion, Garnett had admitted to Young that he was a member of the gang. On another occasion, Young arrested Garnett along with gang members Calloway and Ross. Young knew Ross and had contacted him on at least 15 to 20 prior occasions. Young said that Ross is a "shot-caller" within the gang. Young testified that he had not personally investigated the charged burglaries, but he had reviewed the videos from the first two burglaries and identified Garnett and Ross. In a hypothetical question mirroring the facts in this case, Young opined that the burglaries were committed for the benefit of the gang.
Trial Court Proceedings
The prosecution filed an information charging Garnett with three counts of commercial burglary and two counts of street terrorism. (Pen. Code, §§ 459, 186.22, subd. (a).) The information alleged that the three burglary counts were committed "with the specific intent to promote, further, and assist in criminal conduct by members of [the Stevenson Village Crips] gang." (§ 186.22, subd. (b).) The information further alleged that Garnett had a prior serious felony conviction, a prison prior, and a prior strike conviction.
Further undesignated statutory references will be to the Penal Code. --------
A jury found Garnett guilty of the three burglary counts and found true the three gang allegations. The prosecution dismissed the two street terrorism counts after the jury could not reach a verdict as to those two counts. In a separate trial, the court found true Garnett's prior conviction allegations. The court imposed an aggregate prison sentence of 14 years, four months.
II
DISCUSSION
In this appeal, Garnett argues that "there is insufficient evidence showing that [he] committed the offenses with the necessary gang-related specific intent." We disagree.
"'When considering a challenge to the sufficiency of the evidence to support a conviction, 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 determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Edwards (2013) 57 Cal.4th 658, 715.)
There are two prongs to the criminal street gang enhancement: the gang related prong and the specific intent prong. (People v. Ramirez (2016) 244 Cal.App.4th 800, 819.) Generally, "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," receive additional punishment as prescribed within the statute. (§ 186.22, subd. (b), italics added.)
Under the specific intent prong, there is no requirement that a defendant must have the specific intent to benefit the gang; what is required to be proven is the defendant's "specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b), italics added; People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) The specific intent prong "is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (People v. Albillar (2010) 51 Cal.4th 47, 66.) Whenever "substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Id. at p. 68.)
Here, there was evidence that Garnett committed each of the three burglaries with at least two other people, including Ross. The group apparently entered the businesses together and the individuals assisted each other in committing the crimes. Further, there was unrefuted testimony from Detective Young that both Garnett and Ross were active members of the Stevenson Village Crips criminal street gang at the time of the offenses. Thus, there was substantial evidence to support the jury's conclusion that Garnett acted with the specific intent to promote, further, or assist criminal conduct by other Stevenson Village Crips gang members (specifically, at least, Ross).
Garnett argues otherwise, primarily relying on the case of People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), but the case is inapposite. In Ramon, an officer stopped two gang members in a stolen vehicle in their gang's territory; there was an unregistered gun in the vehicle. (Id. at p. 847.) The prosecution's gang expert opined that the crimes of driving a stolen vehicle and possessing an unregistered firearm benefitted the gang. (Id. at pp. 847-848.) The prosecution primarily relied on two facts to support the expert's opinion regarding the defendant's specific intent: that he was with another gang member and that they were in their gang's territory. (Id. at p. 851.)
The Court of Appeal disagreed, finding the evidence relied on by the expert to be speculative. (Ramon, supra, 175 Cal.App.4th at p. 851.) "These facts, standing alone, are not adequate to establish that [the defendant] committed the crime with the specific intent to promote, further, or assist criminal conduct by gang members. While [the defendant] may have been acting with this specific intent, there is nothing in the record that would permit the People's expert to reach this conclusion." (Ibid.) However, the court acknowledged its "analysis might be different if the expert's opinion had included 'possessing stolen vehicles' as one of the activities of the gang." (Id. at p. 853.)
Here, unlike Ramon, there was nothing speculative about the evidence supporting Garnett's intent. Garnett and Ross, both gang members, assisted each other in burglarizing three commercial locations. In two of the crimes, they were captured on a surveillance video. In the third, there was circumstantial evidence that Garnett and Ross had participated in the burglary and then fled from the scene of the crime. Thus, it was reasonable for the jury to infer—even absent the expert's opinion on the question—that Garnett specifically intended to assist criminal conduct by another gang member: Ross. Further, unlike the expert in Ramon, Detective Young opined that the committing burglaries is one of the primary activities of the Stevenson Village Crips gang.
Garnett cites In re Frank S. (2006) 141 Cal.App.4th 1192, 1198 (Frank S.), for the proposition that "expert testimony alone is not sufficient to show that the offense was gang-related." He is mistaken. What Frank S. more accurately stands for is the proposition that there must be some facts to support a gang expert's testimony. In Frank S., a minor told the police that he carried a knife for protection from a rival gang. (Id. at p. 1195.) The gang expert opined that the minor's possession of the knife benefited his gang by providing the gang with protection should its members be attacked. (Id. at pp. 1195-1196.) Finding this evidence insufficient, the Court of Appeal noted that there was no evidence "that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense." (Id. at p. 1199.)
As shown in Frank S., a gang enhancement cannot be upheld unless there is some evidence connecting a defendant to the criminal activity of the gang beyond the defendant's gang membership. But where—as in this case—a defendant commits a crime with another gang member, that evidence alone is sufficient to support an inference that the defendant intended to assist in criminal conduct by gang members. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1333 [evidence sufficient to support gang enhancement where "defendant, an admitted gang member . . . actually committed the robbery with a gang confederate"]; see also People v. Morales, supra, 112 Cal.App.4th at p. 1179 ["The evidence that defendant knowingly committed the charged crimes in association with two fellow gang members was sufficient to support the jury's findings on the gang enhancements"].) In contrast, "the typical close case is one in which one gang member, acting alone, commits a crime." (Id. at p. 1198.) This is not a close case.
Garnett also cites In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.) to support his argument that evidence of specific intent is "sorely lacking in the instant case." We disagree.
In Daniel C., a minor entered a supermarket with two companions, and, after his companions left the store, the minor took a liquor bottle and tried to leave without paying for it. (Daniel C., supra, 195 Cal.App.4th. at p. 1353.) When confronted, the minor broke the bottle and hit a store employee with it, and then fled with his companions. (Id. at pp. 1353-1354.) The minor and at least one of his companions were affiliates of a gang, and all three wore gang clothing. (Id. at p. 1359.) The appellate court held that there was no substantial evidence to show that the minor had the specific intent to promote, further, or assist any criminal conduct by other gang members. (Id. at p. 1364.) The court concluded that there was no evidence the minor planned to commit the robbery when he entered the store, that he acted in concert with his companions, or that his companions committed any crime. (Id. at pp. 1361-1363.)
Here, there was evidence that each of the three burglaries were planned, that Garnett acted in concert with other burglars, and that at least one of the other burglars, Ross, was also a member of Garnett's gang, the Stevenson Village Crips. Thus, unlike the evidence that was lacking in Daniel C., there is sufficient evidence in this case to support the jury's determination that Garnett had the specific intent to promote, further, or assist any criminal conduct by other Stevenson Village Crips gang members.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.