Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County, No. RIF143805, Eric G. Helgesen, Judge. (Retired judge of the Mun. Ct. for the Cent. Dist. of Tulare assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Robert Wayne Gehring, 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, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
RYLAARSDAM, ACTING P. J.
A jury convicted defendant Louis Hall III of three counts of robbery (Pen. Code, § 211; all further statutory references are to this code) and three counts of street terrorism (§ 186.22, subd. (a)). As to the robbery counts it found he personally used (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8)) and carried (§ 12021.5, subd. (a)) a firearm and committed the crimes for the benefit of a gang (§ 186.22, subd. (b)). The court sentenced him to a term totaling 30 years, 8 months.
Defendant contends there was insufficient evidence to support the convictions for street terrorism and the gang enhancements, the court erroneously responded to a jury question, and the joinder of the three robbery counts with each other and with the gang counts and enhancements violated his right to due process. We disagree and affirm. Defendant also claimed the abstract of judgment did not accurately reflect his actual sentence but both he and the Attorney General agree the abstract has been corrected and that issue is now moot.
FACTS
In December 2007 Malonie Noble and a friend drove to Corona to buy a cell phone from defendant, a member of the Baby Insane Crips, whom she had previously met. Still in the car, after she was shown a phone, Noble haggled over the price with a black man accompanying defendant. When she held out $200 the man with defendant grabbed her wrist. Defendant held a gun and said he would blow off Noble’s head if she did not hand over the money. Defendant’s companion then grabbed the money and he and defendant fled along with a third man.
One morning in March 2008 Primitivo Sereno was sitting in his car waiting to enter his garage in Corona when he saw defendant standing at the car window pointing a gun at his chest. A second young male was next to the rear passenger window. Defendant told him to give him all he had and the companion told him to hurry. The latter took about $400 from Sereno and defendant took a gold chain from Sereno’s neck. The duo then ran.
One night a week and a half later as Lizbeth Garcia was walking from her car to her apartment in Corona defendant and another black man approached her and each put a gun to her head, one demanding all her money. She gave them her purse and was told to walk away without looking back. The men fled.
There was also evidence of other non-charged offenses committed by defendant. In January 2008 he and a member of the Insane Crips, Leslie King, stole five cell phones from a home in Long Beach. The night before the Sereno robbery defendant and two African-American men dressed in gang clothing robbed a couple at gunpoint in Anaheim.
On the afternoon of the Serrano robbery police saw defendant, with a member and an associate of the Insane Crips, at a park in Long Beach at which a gang fight had been reported. Defendant had been seen standing against a Jeep in the parking lot and had its keys. The car, which was stolen, contained two guns.
Four days after the Garcia robbery police recovered a Honda stolen in the Long Beach area driven by a member of the Insane Crips. Defendant, who fled after the car was stopped, had been a passenger in the car. He was found hiding in a residence and a replica gun was located outside a window of the house. Defendant told an officer he belonged to the Baby Insane Crips and was known as “Cuz.” He later denied any connection to the stolen car and claimed he had been in two different locations, including with his mother in Corona.
When police searched defendant’s bedroom in his mother’s home they found almost 300 rounds of ammunition, including some that fit the gun found in the stolen car at the Long Beach park, and photographs of defendant displaying gang signs and wearing gang clothing.
Long Beach detective Hector Gutierrez testified as the gang expert. He had been a police officer for 19 years and had 13 and a half years in the gang unit. His duties included contacting and interviewing gang members and investigating their crimes. He testified about the importance of respect and disrespect to gang members, pointing out that committing a crime, especially one that is violent, increases one’s respect. He also explained tattoos, clothing, and monikers.
He was familiar with the Insane Crips, having investigated them for 19 years, and testified it was a criminal street gang. He had spoken to about 300 of the Insane Crips’s 1, 200 members. He testified as to their tattoos, symbols, and colors. The gang’s claimed territory was Long Beach but its membership had spread to other cities in Los Angeles County and to Riverside County. The Baby Insane Crips are a “clique” within the larger Insane Crips gang with 200 to 300 members.
The gang’s primary activities are murder, attempted murder, burglary, robbery, terrorist threats, and possessing deadly weapons. The parties stipulated members of the gang engaged in a pattern of criminal activity to satisfy section 186.22, subdivisions (a), (b), and (e).
Gutierrez testified at the time of the robberies defendant was a member of the Baby Insane Crips. He based this on defendant’s several admissions to police officer of his membership, tattoos, display of gang signs in photographs, affiliation with other members of the gang, the locations where police had contact with him, and the crimes he committed.
He was not surprised that defendant, a member of a Long Beach based gang, had committed crimes in Corona, where he now lived. Although he had not known of that to occur before, he was aware of Insane Crips members committing crimes in other cities.
When given a hypothetical question based on the facts of the case Gutierrez testified the crimes would have been committed for the benefit of the gang despite the fact the robberies were committed in Corona. In the hypothetical, the perpetrator had been seen in Long Beach between the dates of the robberies. If members lived in other cities they needed to travel to Long Beach to keep in contact with other members and to deliver the money obtained in the robberies to them. Gutierrez had seen this happen and also had been told this is what was done.
DISCUSSION
1. Sufficiency of the Evidence
a. Introduction
Defendant challenges both the substantive crimes of street terrorism and the gang enhancements. As to the latter he contends there was insufficient evidence the robberies were committed to benefit a gang or that he had the specific intent to promote conduct by a gang member in addition to the charged acts. As to the street terrorism charges he asserts there was no proof his cohorts in the robbery were gang members and thus no substantial evidence he aided and abetted a gang member, and there was insufficient evidence the robberies were committed to benefit or assist a gang.
b. Gang Enhancement
1) Crimes For the Benefit of the Gang
A gang enhancement attaches when felonious conduct is “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....” (§ 186.22, subd. (b).) “[T]o prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs. [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.)
The prosecution relied solely on the “for the benefit of” portion of the statute. Defendant argues the only evidence offered in support was his criminal history, gang membership, association with other gang members, and the gang expert’s testimony and claims none of it was sufficient. We disagree.
First, People v. Martinez (2004) 116 Cal.App.4th 753, which defendant cites in support of his arguments other than the claimed inadequacy of the gang expert, dealt with the requirements of gang registration under section 186.30. Further, Martinez held that, under section 186.30, a crime was not “gang related” if the only evidence was a defendant’s criminal history and gang membership. (People v. Martinez, supra, at p. 761.) But it also stated those are factors to consider when determining whether a crime was committed for the benefit of a street gang. (Id. at pp. 761-762.) Moreover, in Martinez no gang expert testified, unlike the case before us.
Defendant claims there was no evidence supporting Gutierrez’s opinion defendant had committed the crimes to benefit the gang. Not so. Gutierrez testified to his numerous years as a gang investigator, and his familiarity with the Insane Crips and the Baby Insane Crips, including their claimed turf, gang signs and symbols, and primary activities. Defendant was admittedly a member of the gang. And robbery is one of the gang’s primary activities. Gutierrez testified about the respect a member gains by committing violent crimes, and the more, the better. Moreover, the four uncharged crimes, committed with members of the gang and after one of which defendant admitted his gang affiliation, occurred during the same two-month period as the charged crimes.
In response to a hypothetical question Gutierrez stated the robberies would benefit the gang because the stolen money could be used to finance travel between Corona, where the gang member lived, and Long Beach, the gang’s home base. The purpose of such trips would be to keep in touch with other members. Defendant now lives in Corona but during the period the crimes were committed at the least returns regularly to Long Beach, as evidenced by the locations of the uncharged crimes. Moreover, the Insane Crips had spread from Long Beach into other counties, including Riverside. Money from the robberies could also be funneled to the gang, and Gutierrez knew of instances where this had occurred. All of this constituted sufficient evidence.
2) Specific Intent to Promote Gang
Defendant alternatively contends that there was insufficient evidence of his “specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b).) He relies on a lack of evidence his cohorts were gang members and points to the prosecution’s closing argument about the street terrorism charges that the requirement a defendant assist gang members in committing a felony could have misled the jury to believe that would suffice for the enhancements as well. Relying on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103, he maintains the statute requires a defendant to assist in or promote a crime other than the one charged.
Garcia has been rejected by California courts (e.g., People v. Romero (2006) 140 Cal.App.4th 15, 19; People v. Hill (2006) 142 Cal.App.4th 770, 774) and most recently the California Supreme Court agreed that Garcia did not correctly interpret the statute. It held the specific intent language of section 186.22, subdivision (b) is “unambiguous and applies to any criminal conduct, without a further requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense or conviction sought to be enhanced.” (People v. Albillar (2010) 51 Cal.4th 47, 66.)
Defendant argues that Albillar does not apply because the defendant there committed a crime with other gang members and the case did not address a case where a gang member acted with others who had not been proven to belong to a gang. But Albillar did not limit its holding to the facts at issue there. Quite the contrary, it emphasized that the requirement was satisfied by assisting with “any” crime. (People v. Albillar, supra, 51 Cal.4th at p. 66.) We are bound by its holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Because the true findings are supported by sufficient evidence, defendant’s due process claims have no merit.
c. Street Terrorism
Section 186.22, subdivision (a) declares that an active participant in a criminal street gang who knows its members engage in a pattern of criminal gang activity may be convicted of street terrorism if he “willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang....” A defendant may be the perpetrator of the felony. (People v. Salcido (2007) 149 Cal.App.4th 356, 367-368.)
Defendant asserts that because the jury was instructed he had to aid and abet a gang member the prosecution had to prove some other gang member committed the crimes and there was insufficient evidence of that fact. Alternatively he maintains that, in any event, street terrorism requires the participation of at least two gang members. None of these arguments has merit.
As to the latter, the majority view does not require that a defendant aid and abet another gang member. Rather, the defendant can be the direct perpetrator. And defendant acknowledges this.
In People v. Ngoun (2001) 88 Cal.App.4th 432, the court affirmed the street terrorism conviction of the defendant who did not aid and abet other gang members, although they were with him, but committed the offenses himself. (Id. at pp 433-434.) “An active gang member who directly perpetrates a gang-related offense ‘contributes’ to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct.” (Id. at p. 436.)
In People v. Salcido, supra, 149 Cal.App.4th 356, while known gang members were with defendant when he committed the crimes, there was no proof they participated. In upholding the judgment, the court ruled that fact was irrelevant and reiterated the holding in Ngoun that the defendant violated section 186.22, subdivision (a) by committing the offenses. (People v. Salcido, supra, 149 Cal.App.4th at pp. 367-368.)
Finally, in People v. Sanchez (2009) 179 Cal.App.4th 1297, relying on Ngoun and Salcido, the court upheld a street terrorism conviction where the defendant, accompanied by one not a member of a gang, committed robberies. (Id. at pp. 1306-1308.)
Defendant’s reliance on People v. Castenada (2000) 23 Cal.4th 743 is misplaced. That case held the STEP Act satisfied due process because it did not make mere membership in a gang a crime but required both the defendant’s active participation in a gang with knowledge of its pattern of criminal conduct and that the defendant willfully further, assist, or promote felonious criminal activity by gang members. (People v. Castenada, supra, 23 Cal.4th at p. 749.) It stated that one “who violates section 186.22[ subdivision ](a) has also aided and abetted a separate felony offense committed by gang members....” (Ibid.) This language is dictum, however, because in Castenada whether section 186.22, subdivision (a) was satisfied when defendant perpetrated a felony without another gang member was not at issue.
The other case on which defendant relies, People v. Rodriguez (2010) 188 Cal.App.4th 722, is no longer valid, review having been granted by the Supreme Court. (People v. Rodriquez, review granted Jan. 12, 2011, S187680.)
Nor are we persuaded a different result is required based on the jury instructions. The relevant portion of CALCRIM No. 1400 given to the jury states: “To prove that the defendant is guilty of this crime, the People must prove [¶]... [¶]... [t]he defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang. [¶]... [¶] To prove that the defendant willfully assisted, furthered, or promoted a crime, the People must prove that: [¶] 1. A member of the gang committed the crime; [¶] 2. The defendant knew that the gang member intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the gang member in committing the crime; [¶] and [¶] 4. The defendant’s words or conduct did in fact aid and abet the commission of the crime.” (Capitalization omitted.)
Defendant claims the jury was required “to receive as law what is laid down as such by the court.” (§ 1126.) This is true as far as it goes. But it is not applicable here.
As explained above, the law provides defendant can be found guilty if he is the direct perpetrator. The instruction, while not the most eloquent, does state the jury had to find the defendant “willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang.” And, as defendant acknowledges, in closing argument the prosecution stated that “[t]he gang member that [defendant] could be furthering, promoting, or assisting could be himself.” Again, perhaps not the clearest, but this is a correct statement of the law and was not contrary to the instructions. There was no error.
Finally, defendant’s claim the conduct must be gang related is put to rest by People v. Albillar, supra, 51 Cal.4th 47 where the court held section 186.22, subdivision (a) applies to “any felonious criminal conduct, not just felonious gang-related conduct.” (People v. Albillar, supra, 51 Cal.4th at p. 66.)
Because the convictions for street terrorism are supported by sufficient evidence, defendant’s due process claims have no merit.
2. Jury Question
a. Introduction
For each of the three robberies defendant was charged with personal use of a firearm. (§§ 1192.7, subd. (c)(8), 12022.53, subd. (b).) The two guns in the stolen jeep at the park in Long Beach were a.22 caliber pistol (Ex. 87) and a black.38 caliber revolver (Ex. 88). Police found a pellet gun (Ex. 89) outside the window of the house where defendant fled after police pulled over the stolen Honda in which he was a passenger. It was a replica of a Beretta. Police testified it was not a real gun but fired plastic pellets. Ammunition found in defendant’s bedroom would fit both exhibit 87 and exhibit 88.
Noble described the gun defendant was holding when he robbed her as a long, black handgun. It did not look like either exhibits 87 or 89 but had a barrel like the one on exhibit 88. The officer who took her statement testified what she described was a semiautomatic handgun but Noble testified she had not said the weapon was a semiautomatic.
Serrano testified he did not know a lot about guns. The gun used in his robbery was small and he saw only the “barrel opening.” Of the three exhibits, he was shown only exhibit 88, which he did not recognize. Garcia could not identify the guns used in her robbery. She did testify they did not look like exhibits 87 or 88 and could not recall if they looked like exhibit 89. Defendant testified he owned exhibit 89, a “fake gun[]” and it was the one he pointed at Nobel.
b. Adequate Response
The pertinent portion of CALCRIM No. 3146 given to the jury stated: “A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.” During deliberations the jury asked the following question: “Does the definition of ‘firearm’ include those weapons that discharge non-lethal rounds? Pg. 8/3146 of the jury instructions seems to suggest any projectile discharged from a firearm.” The court answered: “See highlighted portion of instruction 3146, ” a copy of which was included with the response. The court highlighted the phrase “by the force of an explosion or other form of combustion.”
Defendant argues the court’s response to the jury question was inadequate and thus an abuse of discretion because it did not explain that a pellet gun was not a firearm as a matter of law. He claims the question alerted the court the jury was focused on whether the pellet gun was a firearm, making it a “critical issue” in the case.
Defendant is correct that a pellet gun is not a firearm for purposes of the gun enhancements. (§§ 12001, subds. (b), (g), 12022.53; People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 [pellet gun not firearm because force is not “explosion or other form of combustion”].) But, contrary to defendant’s argument, the jury question did not deal with this issue. It did not ask whether a pellet gun was a firearm under the statute or ask any question about a pellet gun. Instead, the jury was concerned with the type of ammunition used in a firearm.
“The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information.... [The court] should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
The court did so. After receiving the question it advised counsel of the course it was going to take by highlighting the noted portion of the instruction. “In other words, anything that comes out of the gun by the force of any explosion or other form of combustion, that is what makes it a firearm, regardless of whether it is something that would be considered lethal or not. [¶] I don’t know of anything that would not be potentially lethal, but I’m not going to go there with the jury.”
Further, the jury heard two officers’ testimony exhibit 89 was a pellet gun and “not a real firearm.” And defense counsel emphasized the distinction in closing argument. It does not matter that there was no testimony about how pellets are projected from the replica gun. The prosecution did not argue the pellet gun was a firearm nor did it have a duty to put in that evidence. Defendant, of course, always had that option. Finally, despite defendant’s testimony he pointed the pellet gun at Noble, there was no other evidence that it was used in any of the three robberies. And Noble testified it did not look like the one she saw. This belies defendant’s argument that the jury was focused on the pellet gun.
CALCRIM No. 3146 was correct and complete as given. The court did not abuse its discretion when it decided not to elaborate on that instruction.
3. Joinder of Counts and Enhancements
Defendant asserts his due process was violated because the three robbery counts were tried together and with the gang counts and enhancements. While acknowledging joinder of the counts satisfied the statute (§ 954) and he did not move to sever in the trial court, he nevertheless contends it was clear by the end of the case that the joint trial was “gross[ly] unfair[], ” requiring reversal. The Attorney General argues defendant waived his right to raise this argument because a motion to sever is a necessary prerequisite. It is not necessary for us to discuss this issue because we determine there was no error in trying the counts and enhancements together.
In reviewing this question we use the same standard as if defendant had made a motion to sever that was denied. (People v. Bean (1988) 46 Cal.3d 919, 940.) We must address whether, viewing “the evidence actually introduced at trial, ” there has been “‘a gross unfairness... such as to deprive the defendant of a fair trial or due process of law.’ [Citation.]” (Ibid.) We reverse only if it is “reasonably probable that the jury was influenced [by the joinder] in its verdict of guilt....” (Ibid.) Defendant has the burden to show prejudice. (Id. at pp. 938-939.)
Factors to be considered in this analysis include whether evidence of the relevant counts would be cross-admissible if there were separate trials, any of the charges are highly inflammatory, or a weak case has been joined with a strong case such that evidence in the stronger case could influence a guilty verdict in the weaker one. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220-1221.) Generally cross-admissibility of evidence is sufficient to uphold joinder but even a total lack of cross-admissibility alone is not enough to show prejudice. (Id. at p. 1221.)
As to the joinder of the gang charges with the robberies, defendant’s argument is scant. He points out that a substantial amount of the evidence went to the gang charges as opposed to the robberies. He claims, incorrectly, that none of the robberies was proven to be gang related. Finally, he asserts in one sentence that the jurors could consider all the gang-related evidence as proof of the robberies.
But the gang evidence was cross-admissible as to the robbery counts. As the Attorney General notes, the substantive gang charges arose out of the robberies and as discussed above there was evidence the robberies were committed to benefit the gang. Defendant’s argument to the contrary is not persuasive. Further, as to the enhancements, there is broader discretion to admit the evidence. (People v. Hernandez, supra, 33 Cal.4th at p. 1048.) It is “attached to the charged offense and is, by definition, inextricably intertwined with that offense.” (Ibid.) Here the evidence proving street terrorism is the essentially identical as that to prove the enhancements. Defendant was not prejudiced by joinder of the gang charges with the robberies.
Joinder of the three robbery counts was likewise proper. Defendant asserts that the “central issue” in the Sereno and Garcia robberies was the identity of the perpetrator whereas in the Noble robbery the victims knew him. He asserts Sereno and Garcia did not conclusively identify him in lineups or at trial and their descriptions did not match his physical characteristics. He also points out that the Noble robbery was at a planned location whereas the other two “involved opportunistic encounters with lone victims.” Thus, he concludes, none of the evidence from the Noble robbery was relevant as to the other two and vice versa.
Defendant claims joinder was unusually inflammatory because each robbery was used to show his propensity for committing the crime. Finally, he maintains the most crucial factor is the weakness of the Sereno and Garcia robberies with the stronger Noble robbery count, citing numerous studies to support his claim. (We decline to take judicial notice of them because there was no separate motion making such request, as required by California Rules of Court, rule 8.252(a)(1). But the studies would not have affected the outcome of the case.)
Defendant has not met his burden to show prejudice. First, although only two of the robberies had an identity issue, there was similar evidence in all three. Defendant, accompanied by a cohort, used a gun in each. The robberies occurred within a three-month period in the same geographic location, near his mother’s home. In the Noble and Sereno robberies the victims were in their cars. Further, none of these three was more inflammatory than the others.
Nor was the evidence in any case significantly weaker. Although Noble clearly identified defendant, contrary to defendant’s claim the descriptions Sereno and Garcia gave of defendant were very close. Defendant, an African-American male, was 17 years old, 6’1” tall, weighing 150 pounds. Sereno described the robber as a 16- to 17-year-old black male between 5’8” and 5’10” tall, weighing 150 to 155 pounds. In selecting a photograph of defendant he said the “nose and face look like the suspect with the gun. He had a hood over his head so [I] could only see his face.” Viewing a six-pack lineup he picked defendant’s picture.
Garcia described the robbers as 16- to 21-year-old black males, one about 5’10” and the other a bit shorter. She said at 5’1” they seemed tall to her. She picked defendant’ from a photo lineup, stating, “He was the one who talked to me. Not certain but his eyes are the same....” Although she could not identify defendant in court, she testified he looked a lot different than he had in the photograph in which she identified him. Defendant in fact had changed his appearance; he had cut braids and wore glasses.
In sum, defendant did not show the trial was grossly unfair due to joinder.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., MOORE, J.