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People v. Gonzalez

California Court of Appeals, Second District, Fourth Division
Jul 21, 2008
No. B200948 (Cal. Ct. App. Jul. 21, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. KA078023, Robert M. Martinez, Judge.

Robert H. Pourvali, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.


SUZUKAWA, J.

Defendant Juan Gonzalez appeals from the judgment entered following his conviction by jury of second degree robbery with the personal use of a firearm. (Pen. Code, §§ 211, 212.5, subd. (c), 12022.53, subd. (b).) The jury further found that he committed the robbery for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) He appeals, contending there is insufficient evidence to support the jury finding that he used a firearm and committed the robbery for the benefit of a criminal street gang. We affirm the judgment.

All further statutory references are to the Penal Code.

FACTS

On January 29, 2007, at about 5:30 p.m., Everett White was sitting in his parked car at the edge of Washington Park in Los Angeles, talking on his cellular phone. Two young Hispanic men stood nearby, one of whom White identified as defendant. White noticed a large tattoo of the number 12 on the side of defendant’s neck.

After about 30 minutes, defendant and the other man approached to within several feet of White’s car on the driver’s side. White noticed that the men were speaking with one another, watching him, and pointing in his direction. The driver’s side window was open about six inches and White was still on the phone. Defendant walked to the window and asked White, “Where are you from?” White believed he was being asked whether he was affiliated with a gang and replied, “I’m not from anywhere.” Defendant then said, “What are you doing here? We don’t like Blacks here. You’re not supposed to be in this neighborhood[.]” He told White, “This is our park.”

Defendant pulled up his sweatshirt to reveal what White testified was a “very big gun.” Defendant demanded White’s bracelet, necklace, and cellular phone. White dropped his phone while giving defendant his jewelry, and when he took a moment to find the phone, defendant drew the gun, pointed it at White, and said, “I should blast you right now, mother fucker.” White testified that the gun was a “revolver,” “chrome in color,” and about “10 inches” from barrel to butt. White saw the drawn “revolver” from a distance of less than a foot. After White gave defendant his phone, defendant told him to “get out of here.”

White called 911 from home. A detective came to his house and White identified defendant’s picture from a “six pack” photo lineup. The lineup had included defendant’s picture at the direction of Pomona detectives including Michael Lange. Lange was familiar with defendant and the 12th Street gang, which claims Washington Park as part of its territory. Defendant had admitted to Lange during prior encounters that he was a 12th Street gang member.

Lange testified at trial as a gang expert. Lange opined that defendant’s alleged robbery “would benefit his gang” because it would help “establish the intimidation, the fear of the gang.” He said that defendant’s statements, “where are you from?” and “[y]ou’re not supposed to be in this neighborhood,” referred to gang membership and territory.

DISCUSSION

Defendant contends there is insufficient evidence to support the jury’s finding that he used a real firearm as opposed to a toy or replica and committed the robbery to benefit a gang within the meaning of section 186.22, subdivision (b)(1). We disagree.

In reviewing a judgment for sufficiency of the evidence, we must review the evidence in the light most favorable to the judgment to see if there is substantial evidence from which any rational trier of fact could find each element of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is “evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citations.]” (In re Frederick G. (1979) 96 Cal.App.3d 353, 366.) The reviewing court may reverse “[o]nly if it clearly appears ‘that upon no hypothesis whatever is there sufficient substantial evidence’ to support” the finding in the trial court. (People v. Poindexter (2006) 144 Cal.App.4th 572, 577, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) We use the same standard in reviewing whether sufficient evidence supports an enhancement. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.)

Defendant argues there is insufficient evidence that the object he brandished during the robbery was a real firearm, as opposed to a toy or replica. A firearm is “any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.” (§ 12001, subd. (b).) According to the plain language of the statute, a toy gun or gun replica is not a firearm.

In arguing there is insufficient evidence of firearm use, defendant notes that the victim did not touch the object brandished by defendant, and therefore could not discern by tactile sensation the object’s weight, temperature, or composition. While this may be true, the prosecution was required to present substantial evidence from which a rational jury could conclude that a firearm had been used. Defendant’s implication that a witness must physically inspect an object resembling a firearm, in order to verify that it is a firearm, lacks merit.

As the Attorney General points out, a witness’s testimony about the description of the weapon and its role in the commission of the crime—if adequate—allows a jury to draw reasonable inferences supporting a firearm use enhancement finding. (See People v. Hayden (1973) 30 Cal.App.3d 446, 452-453, disapproved on another point in People v. Rist (1976) 16 Cal.3d 211, 222, fn. 10.) “Whether a defendant used a firearm, thus subjecting himself to a finding under section 12022.5, is a question for the trier of fact. [Citations.] The character of the weapon may be shown by circumstantial evidence.” (Hayden, supra, at pp. 452-453.) Aural and tactile impressions of witnesses who never saw a firearm have been enough to support firearm enhancements. (See People v. Green (1985) 166 Cal.App.3d 514 [victim’s testimony that she felt defendant place a gun to her head and neck, together with evidence that two bullets were found in defendant’s pocket, was substantial evidence of firearm use].) Defendant gives no reason to believe one must touch an object in order to discern it is a gun.

In this case, the victim saw the object brandished by defendant at close range. The victim referred to the object as a “gun,” and testified, “I know it was real.” The victim described the object as a large, chrome revolver 10 inches in length. He testified that he had been around guns before; had received weapons training; and had learned how to clean and fire handguns. He stated that the object brandished by defendant was “definitely a real gun.” There was no evidence that the object brandished by defendant was in fact a toy or replica, although during cross-examination the victim conceded that the object “could be” a replica. Moreover, defendant’s willingness to boldly display the weapon coupled with his threat to “blast” the victim provide additional circumstantial evidence that he did not use a toy gun. (See People v. Dominguez (1995) 38 Cal.App.4th 410, 422.) The jury could reasonably conclude that the victim, who had experience with firearms and saw defendant’s weapon at very close range, was able to discern that the weapon was neither a toy nor a replica.

Defendant also contends there is insufficient evidence to support the jury finding that he committed the crime for the benefit of the gang or that he had the specific intent to do so. He argues “[i]n this regard, there was no evidence that [he] intended to promote criminal gang behavior as opposed to simply his own interests.” He notes that when asked if defendant intended to help the gang when he committed the robbery, the detective responded, “I can’t tell you what his intent was. I can tell you that the act itself benefitted the gang.”

Defendant compares the present case to In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.), where the court overturned the juvenile court’s finding that the minor possessed an illegal weapon with the specific intent to promote, further, or assist in any conduct by gang members. In Frank S., a minor who associated with gang members was charged with carrying a concealed knife. (Id. at pp. 1195-1196.) The minor had been riding his bike through town when officers stopped him for a traffic violation. 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. In fact, the only other evidence was the minor’s statement to the arresting officer that he had been jumped two days prior and needed the knife for protection.” (Id. at p. 1199.) The court noted that the only evidence relating to the gang enhancement consisted of the expert’s belief that the minor intended to benefit the gang by possessing the knife, and concluded the expert’s improper opinion was insufficient to sustain the true finding on the gang enhancement. (Ibid.) Frank S. is distinguishable.

Unlike Frank S., the jury in the present case heard evidence that defendant committed his crime for the benefit of his gang. We start with the fact that the robbery was committed in Washington Park, a place where 12th Street gang members congregate. Detective Lange testified that on virtually every occasion he saw defendant, defendant was in Washington Park, often with fellow gang members. Immediately upon approaching the victim, defendant asked, “Where are you from?” The victim knew he was being asked about his gang status. Detective Lange informed the jury that 12th Street had a long-standing feud with an African-American gang in the area and a member from that rival showed disrespect by being in 12th Street territory. After the victim told defendant he did not belong to a gang, defendant said, “What are you doing here? We don’t like Blacks here. You’re not supposed to be in this neighborhood.” Defendant told the victim Washington Park was “our park,” and proceeded to take the victim’s possessions at gunpoint. Not satisfied that he had convinced the victim never to return, defendant pointed his gun at the victim’s face and threatened to “blast” him.

Based on the above facts and his knowledge of the 12th Street gang, Lange opined that the robbery was beneficial to the gang’s reputation. He testified that by issuing a gang challenge to the victim, telling him that African-Americans were not welcome, and then taking his property, defendant reinforced “the fear and intimidation and retaliation that gangs operate under. When it’s all said and done, the gang benefits from it because they establish the intimidation, the fear of the gang. That’s how they operate. And the individual that carries out this, his stature will rise because he’s doing work.”

Although the expert could not testify to defendant’s specific intent (see People v. Killebrew (2002) 103 Cal.App.4th 644, 658), “[i]t is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. [Citation.]” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) In the present case, defendant’s gang ties and his stated motive to keep undesirable individuals out of the gang’s neighborhood and park, coupled with the expert’s opinion that the manner in which the robbery was committed benefitted the gang by establishing fear and intimidation in the community, is compelling evidence that defendant intended to promote, further, or assist criminal conduct by gang members.

Defendant points out that he did not commit the crime with another gang member, “made no gang challenges, shouted no gang slogans, made no gang hand signals, and made no reference to his gang before, during, or after the commission of the crime.” He also contends there is no evidence that he used the proceeds of the robbery to further gang purposes. While we recognize that it is the duty of the jury to acquit defendant if the circumstantial evidence is susceptible of two reasonable interpretations and one points to innocence, once the jury reaches its verdict we do not reweigh the evidence. Even if we were to conclude that the circumstantial evidence might lead to a different result, reversal is not mandated. Our task is to determine whether any reasonable trier of fact could have reached the same conclusion as the jury. (People v. Holt (1997) 15 Cal.4th 619, 667-669.)

We conclude the evidence is sufficient to support the jury finding on the gang enhancement.

DISPOSITION

The judgment is affirmed.

We concur: EPSTEIN, P. J., WILLHITE, J.


Summaries of

People v. Gonzalez

California Court of Appeals, Second District, Fourth Division
Jul 21, 2008
No. B200948 (Cal. Ct. App. Jul. 21, 2008)
Case details for

People v. Gonzalez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JUAN GONZALEZ, Defendant and…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Jul 21, 2008

Citations

No. B200948 (Cal. Ct. App. Jul. 21, 2008)