Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08900325. Wayne R. Ellison, Judge.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey Grant, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted appellant Carlos Ricky Gonzales of several felonies, including residential robbery, and found Penal Code section 186.22 gang enhancements true. He raises six issues in this appeal. He claims the trial court erred in (1) dismissing a juror, (2) substituting a replacement juror, (3) instructing the jury to begin deliberations anew, and (4) denying his motion to bifurcate trial of the gang enhancements from the substantive offenses. Gonzales also challenges the true findings on the gang enhancements on the basis of insufficiency of the evidence. Finally, he contends the trial court erred in imposing consecutive instead of concurrent terms of imprisonment. We reject all of his contentions and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
On January 12, 2008, Eduardo Vidales, Rosalinda Duarte, Jose Martinez, and Elizabeth Gonzales were all inside an apartment. Carlos Gonzales (hereafter Gonzales) entered and asked Vidales and Martinez, “where are you from? Who do you run with?” Both men responded that they were not gang members, after which Gonzales left the apartment. Duarte told Vidales and Martinez to hide in the bedroom because Gonzales had a temper.
Gonzales returned with Maximino Acosta; Gonzales was carrying a handgun and Acosta held a sawed-off shotgun. Gonzales and Acosta went to the bedroom and Gonzales placed the handgun at Martinez’s head and demanded Martinez and Vidales empty their pockets. Before they could do so, Gonzales reached into Martinez’s pocket and removed an MP3 player. Vidales had nothing in his pockets.
Acosta and Gonzales left the apartment. Duarte followed them outside and took back Martinez’s MP3 player. After this, Acosta and Gonzales went into another apartment nearby.
Officers responding to the scene could see through the window and observed Acosta and Gonzales in the apartment holding weapons. After arresting Acosta and Gonzales, officers found two guns hidden in the apartment.
Gonzales was charged with first degree residential robbery, attempted first degree residential robbery, assault with a firearm, first degree residential burglary, possession of a firearm by a felon, and street terrorism. It also was alleged (1) the offenses were committed for the benefit of and in association with a criminal street gang, and (2) Gonzales personally used a firearm.
Gonzales requested that the trial court bifurcate the gang charge and the gang enhancement. The trial court denied the request.
At trial, Anthony Gates testified as a gang expert. Gates investigated and found nine jail classifications in which Gonzales had admitted being a member of the Calwa Bulldog gang. Apart from the jail classifications, Gonzales had admitted being a Calwa Bulldog on two other occasions. Gonzales also had numerous gang tattoos, including a tattoo of a bulldog on the back of his head. Gonzales had been arrested in the past with known Calwa Bulldog gang members; he had been contacted in the past while in the company of Calwa Bulldog gang members; and Acosta was an admitted active member of the Calwa Bulldogs. Gates opined that Gonzales was a Calwa Bulldog gang member who actively participated in the criminal street gang.
Gates testified that he was of the opinion the crimes were committed for the benefit of the Bulldog gang as well as in association with a criminal street gang. Gates stated that Gonzales would benefit from committing the crimes because gang members earn respect by committing crimes. Gates testified this was especially true in this case because Gonzales had committed the crimes with another gang member, Acosta, who could verify that Gonzales committed the crimes.
Daniel Vasquez testified for the defense. He opined that Gonzales did not intend to promote or assist a gang when he committed the offenses. Instead, Gonzales acted out of misplaced family loyalty by trying to interject himself into the social lives of two female cousins who had male visitors in their apartment.
Jury deliberations began on Friday, May 8, 2009, and continued until 4:30 p.m. when the jury was excused for the day. When the jury reconvened on May 11, Juror No. 17 called in sick and was replaced by Alternate Juror No. 2.
After deliberating, the jury informed the trial court that it was unable to reach a unanimous verdict on all counts and enhancements. Ultimately, the trial court excused Juror No. 32 when that juror reported he was unable to perform the duties of a juror because he would not judge another human being.
The trial court substituted Alternate Juror No. 1 for Juror No. 32 on May 12 and instructed the jurors to begin deliberations anew on all charges and enhancements. The jury began deliberating at 9:39 a.m. and reached its verdict at 10:00 a.m.
The jury found Gonzales guilty of all charges and found all enhancements true. The trial court sentenced Gonzales on September 15, 2009, to a total term of 31 years 4 months in state prison.
DISCUSSION
Gonzales raises five challenges to his convictions and one challenge to his sentence. He contends the trial court erred in (1) dismissing Juror No. 32 after deliberations had begun, (2) substituting Alternate Juror No. 1 instead of declaring a mistrial, (3) instructing the jury to begin deliberations anew, even though verdicts had been reached on three counts, (4) refusing to bifurcate the trial on the gang enhancements, and (5) imposing a consecutive sentence. He also contends the evidence was insufficient to support the gang enhancements.
I. Jury Issues
A. Dismissal of Juror No. 32
Factual summary
When the jury informed the trial court it was unable to reach a unanimous verdict on specific counts, the trial court called the jury into the courtroom and asked specific questions. The foreperson informed the trial court that the jury had reached a unanimous verdict on three counts, but was unable to reach a unanimous verdict on the other three counts or the enhancements. The trial court then excused the jury from the courtroom, with the exception of Juror No. 32.
That morning Juror No. 32 had told the clerk he did not feel good about judging another human being. The trial court asked Juror No. 32 whether he could no longer perform the duties of a juror or whether he simply was unhappy serving on a jury. Juror No. 32 responded that he could no longer perform the duties of a juror. The trial court then confirmed that Juror No. 32 was not being pressured in any way to take this position. The trial court found that Juror No. 32 could not perform his duties as a juror and excused him from the jury.
The trial court asked the People and defense counsel for argument on the proper way to proceed after Juror No. 32 had been excused. Both parties requested that the trial court instruct the jury to begin deliberations anew on all charges. The trial court then substituted in Alternate Juror No. 1 and instructed the jurors to set aside their past deliberations and begin anew.
Analysis
A juror who refuses to deliberate may be removed “on the theory that such a juror is ‘unable to perform his duty’ within the meaning of Penal Code section 1089.” (People v. Cleveland (2001) 25 Cal.4th 466, 475 (Cleveland).) Penal Code Section 1089 provides, in pertinent part: “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefore, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.”
A trial court’s decision to discharge a juror and order an alternate to serve is reviewed for abuse of discretion. (Cleveland, supra, 25 Cal.4th at p. 474.) The Cleveland court held that “a court may not dismiss a juror during deliberations because that juror harbors doubts about the sufficiency of the prosecution’s evidence.” (Id. at p. 483.) A juror who refuses to deliberate, however, may be dismissed because such a juror is unable to perform his or her duty under section 1089. (Cleveland, at p. 475.)
Here, Juror No. 32 stated he could not “come to a judgment” in the case because he simply did not want to judge another human being. This is a refusal to deliberate, albeit one of conscience, which constitutes an inability to perform the function of a juror. (Cleveland, supra, 25 Cal.4th at p. 475.)
The trial court did not err in dismissing Juror No. 32 after deliberations had commenced.
B. Substitution of Juror
Gonzales next claims that it was error for the trial court to substitute Alternate Juror No. 1, instead of declaring a mistrial. We disagree.
When a juror is dismissed after commencement of deliberations, it is appropriate to substitute another juror. (People v. Collins (1976) 17 Cal.3d 687, 691-692 (Collins).) As the California Supreme Court stated, substitution of an alternate juror “is desirable to maintain judicial efficiency.” (Id. at p. 692.) The substitution of an alternate juror after deliberations have commenced is permissible when the “jury has been instructed to begin deliberations anew.” (Id. at p. 691.)
Here, the trial court appointed an alternate juror and instructed the jury to begin deliberations anew. This procedure fully comports with the requirements set forth in Collins and the provisions of section 1089 . The trial court did not err in appointing Alternate Juror No. 1 in place of Juror No. 32.
C. Commencing Deliberations Anew
The last issue Gonzales raises with respect to the jury is that instructing the jury to begin deliberations anew after it had reached a verdict on some counts violated his right to due process and a jury trial, as well as the constitutional protections against double jeopardy. These arguments were considered, and rejected, in People v. Sanborn (2005) 133 Cal.App.4th 1462, 1466-1468 (Sanborn).) We reject them here.
Both section 1089 and the holding of Collins require the trial court to instruct the jury to begin deliberations anew if a juror is substituted after commencement of deliberations. A trial court is not required to accept partial verdicts; it may properly advise the reconstituted jury to begin deliberations anew, even if the jury has reached verdicts on some of the charges prior to the juror substitution. (Sanborn, supra, 133 Cal.App.4th at p. 1468.)
Also, both counsel agreed that beginning deliberations anew was the correct action. Thus, there was no error. (Sanborn, supra, 133 Cal.App.4th at pp. 1467-1468.)
II. Bifurcation
In the trial court, Gonzales moved to bifurcate the gang enhancements from the substantive offenses. He also asked to bifurcate the gang offense. The trial court indicated the proper motion would be to sever the gang offense. The trial court then denied the motion to bifurcate the gang enhancements.
On appeal, Gonzales states that “despite a paucity of evidence” the substantive offenses were gang related, the trial court refused to bifurcate the trial of the gang enhancement from the substantive offenses. He contends the denial of his motion to bifurcate the gang enhancements was error. He does not raise any issue regarding severance of the gang offense.
Standard of Review
The denial of a motion to bifurcate the trial of a gang enhancement is reviewed for abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) Even if some of the evidence offered to prove a gang enhancement would be inadmissible at a trial of the substantive offense, a trial court still may deny bifurcation. (Id. at p. 1050.)
Analysis
Gang evidence may be relevant to establish “identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]” (Hernandez, supra, 33 Cal.4th at p. 1049.) Under these circumstances, a gang enhancement is inextricably intertwined with the substantive offense and bifurcation would not be necessary. (Id. at pp. 1048-1050.) Here, gang evidence was inextricably intertwined with the substantive offenses.
Gang evidence clearly was relevant to establish motive, intent, and identity. Gonzales questioned the victims on whether they claimed any affiliation and acted to rob the victims after receiving a response indicating the victims were not members of the Bulldog gang. The testimony at the preliminary hearing was that Gonzales and Acosta committed the offenses to enhance their standing as gang members and to benefit the Bulldog gang.
Gonzales also had numerous visible gang tattoos, including a tattoo of a bulldog on the back of his head. Acosta too had visible gang tattoos and indicia, including a tattoo of a dog collar and a bulldog. Gonzales committed the crime in conjunction with another person with identifiable Bulldog gang tattoos, a method of operating that is consistent with gang membership.
Moreover, since Gonzales (1) never moved to sever the trial of the gang offense from the other substantive offenses, and (2) has not raised any issue on appeal that failure to sever the gang offense based on his bifurcation motion was error, the gang evidence was admissible as to the gang offense and bifurcation, therefore, would have served no purpose.
Here, the trial court noted that the question put to the victims by Gonzales “arguably” was “part of the motive” for committing the offenses. It was Gonzales himself who injected his gang status into the substantive offenses by identifying himself as a gang member, asking the victims if they claimed any affiliation, and then demanding money or goods when the victims acknowledged they were not Bulldog gang members.
Under these facts, we conclude the trial court did not abuse its discretion in refusing to bifurcate trial of the gang enhancement from trial of the charged offenses. (Hernandez, supra, 33 Cal.4th at p. 1050.)
III. Sufficiency of the Evidence
Gonzales contends the evidence was insufficient to support the true finding on the gang enhancement. He claims that the evidence failed to establish the crimes were committed for the “benefit of, at the direction of, or in association with a criminal street gang” or that he harbored the requisite specific intent to promote the criminal street gang.
Standard of Review
In reviewing the sufficiency of the evidence we view the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Augborne (2002) 104 Cal.App.4th 362, 371 [standard of review of sufficiency of the evidence applies to criminal street gang enhancement].) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime or enhancement beyond a reasonable doubt. (Johnson, at p. 578.)
Analysis
“[A]ny 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 [with a sentence enhancement].” (§ 186.22, subd. (b)(1).) The criminal street gang enhancement of section 186.22, subdivision (b)(1) applies if the crime for which the defendant was convicted 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.”
The first prong of Gonzales’s attack on the gang enhancement is that the evidence failed to establish the crimes were committed in association with any criminal street gang. He contends that without the throwing of gang signs, or leaving gang graffiti at the scene, there was no indication the crimes were for the benefit of a criminal street gang. Gonzales also states the crimes were “not committed in a place that could be seen or heard by any neighbors or members of the community that might have been intimidated or made to understand that the crime was gang related.” If we were to accept this premise, it would follow that (1) no crime committed inside a building or dwelling could ever be committed for the benefit of a gang because the crime would not be committed in a location where it was readily observed, and (2) any crime without gang graffiti or the throwing of gang signs could not be gang related. This is not the standard for determining whether a crime falls within section 186.22, subdivision (b).
The element of the enhancement that addresses commission of the crime for the benefit of or in association with a criminal street gang is satisfied if the evidence establishes that the defendant intended to commit the crime in association with other gang members. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales) [jury may “reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members”].) “[O]ne gang member would choose to commit a crime in association with other gang members because he could count on their loyalty.” (Id. at p. 1197.)
The California Supreme Court recently issued People v. Albillar (2010) 51 Cal.4th 47 (Albillar), addressing the section 186.22, subdivision (b) gang enhancement. In Albillar, the defendants sexually assaulted the victim inside an apartment; the three gang members who committed the crimes were related to each other. (Albillar, at p. 51.) There was no gang graffiti left in the apartment and no throwing of gang signs. (Id. at pp. 51-53.)
The California Supreme Court concluded the evidence was sufficient to support a finding that the crimes were committed in association with the gang: “Defendants not only actively assisted each other in committing these crimes, but their common gang membership ensured that they could rely on each other’s cooperation in committing these crimes and that they would benefit from committing them together.” (Albillar, supra, 51 Cal.4th at pp. 61-62.) By committing crimes together, gang members increase their status among those participating in the crimes and among the entire gang. (Id. at p. 61.)
Here, Gonzales clearly intended to commit the crimes with a fellow gang member. Gonzales, after initially inquiring about the victims’ gang status, left the apartment and returned with his fellow Bulldog gang member, Acosta, in order to commit the criminal offenses. Consequently, the evidence establishes Gonzales committed the crimes in association with a criminal street gang. (Albillar, supra, 51 Cal.4th at pp. 61-62; Morales, supra, 112 Cal.App.4th at pp. 1197-1198.)
The second prong of Gonzales’s attack on the gang enhancement is that the evidence failed to establish he had the requisite intent to promote or assist in criminal conduct by the gang. Gonzales contends his mere membership in and connection to the Bulldog criminal street gang was insufficient to support a true finding that he had the specific intent to promote, further, or assist in any criminal conduct by gang members.
“[S]pecific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members.…’” (Morales, supra, 112 Cal.App.4th at p. 1198.) Gonzales entered the apartment and asked the victims “where are you from? Who do you run with?” -- a question typically used to determine gang affiliation. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1208 (Zepeda).) Gonzales then left and returned with another known gang member, Acosta; both Acosta and Gonzales were carrying guns; both men then proceeded to rob or attempt to rob the victims.
The specific intent to promote, further, or assist in any criminal conduct by gang members is satisfied when there is an intent to assist in committing the current offenses, not just other criminal conduct by gang members. (Albillar, supra, 51 Cal.4th at pp. 64-65.) When it is demonstrated that a gang member intended to commit the current offenses, intended to commit them in association with another person, and knew the other person to be a member of his gang, then the specific intent requirement of section 186.22, subdivision (b)(1) has been met. (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) As the court stated in Albillar, the specific intent requirement“is unambiguous and applies to any criminal conduct, without a requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction sought to be enhanced.” (Albillar, supra, 51 Cal.4th at p. 66.)
Gonzales’s case is similar to the Zepeda case where the defendant asked the victim “where you from” before shooting the victim. (Zepeda, supra, 87 Cal.App.4th at p. 1190.) Expert testimony then established that the question typically was used to establish gang affiliation; attacking the victim would enhance the reputation of the defendant’s gang and provided a motive for the crime. (Id. at pp. 1207-1208.)
Conclusion
The substantial evidence standard of review applies to the section 186.22 gang enhancement. (People v. Maury (2003) 30 Cal.4th 342, 396.) After inquiring of the victims if they had any gang affiliation, Gonzales left the apartment and then returned with a fellow Bulldog gang member, Acosta, and guns. The two men then proceeded in concert to rob or attempt to rob Martinez and Vidales. These facts provide substantial evidence from which a reasonable jury could render a true finding on the section 186.22, subdivision (b)(1) gang enhancement. (Albillar, supra, 51 Cal.4th a p. 68.)
IV. Consecutive Sentences
Gonzales contends the trial court abused its discretion when it imposed consecutive terms of imprisonment for the count 1 and 2 offenses, robbery and attempted robbery, instead of concurrent terms. His contention is that he was “culpable of only a single act of violence” against Martinez and it was Acosta who committed an act of violence against Vidales.
The jury convicted Gonzales of both robbery of Martinez and attempted robbery of Vidales. No challenge to the sufficiency of the evidence to support these convictions has been made. Section 669 grants broad discretion to a trial court to impose consecutive sentences when a defendant, like Gonzales, has been convicted of two or more crimes. (People v. Shaw (2004) 122 Cal.App.4th 453, 458.) Under California Rules of Court, rule 4.425(a)(2), “the court may impose consecutive sentences for separate acts of violence against multiple victims.” (Shaw, at p. 458.)
The jury found Gonzales committed multiple acts of violence against two victims: Martinez and Vidales. He may have directed his weapon at only one victim, but he also aided Acosta in attempting to rob the other victim. The burden is on Gonzales, as the party attacking the sentence, to show that the sentencing decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez).) This he has not done. “In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.]” (Ibid.)
To the extent Gonzales is arguing that he should have been sentenced to concurrent terms because Acosta was sentenced to concurrent terms, a trial court’s sentencing decision will not be reversed merely because reasonable people might disagree. “‘“An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (Alvarez, supra, 14 Cal.4th at p. 978.)
We conclude the trial court did not abuse its discretion in imposing consecutive terms.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., LEVY, J.