Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 06SF0053, Craig E. Robison, Judge.
Ava R. Stralla, 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, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
A jury convicted Iran Emmanuel Hernandez of making criminal threats (Pen. Code, § 422; count 1), active participation in a criminal street gang (§ 186.22, subd. (a); count 2), and gang-related battery (§§ 186.22, subd. (d), 242; count 3). The jury also found Hernandez made criminal threats “for the benefit of, at the direction of, and in association with” the Southside Raza (SSR) criminal street gang (§ 186.22, subd. (b)(1)), and had a prior “strike” within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds (b)-(e).) The court sentenced Hernandez to a 14-year prison term.
All further undesignated statutory references are to the Penal Code.
On appeal, Hernandez challenges the sufficiency of the evidence to support the making criminal threats conviction, the jury’s gang enhancement finding, and the jury’s related finding that he committed battery for the benefit of SSR. We find no merit in any of his contentions and affirm the judgment.
I
FACTS
The Crime
During the evening of November 6, 2005, Humberto Sanchez and Joel Hernandez left Sanchez’s apartment in the Prado Apartments complex in Laguna Hills to get something to eat. As Sanchez was backing out of a parking spot, Iran Hernandez (Hernandez), Albert Godinez and one of Godinez’ friends stopped his car. Sanchez knew Hernandez and Godinez were SSR gang members. Sanchez locked his car doors. He testified that he locked his doors because he knew Hernandez and Godinez were gang members “and if anything happened, they would probably try to get me out of my car and mess me up.”
Hernandez walked up to Sanchez’s window, looked around, and asked, “Where is Mario because I am looking for him?” Sanchez told Hernandez that he didn’t know where Mario was and even if he did know, he wouldn’t tell him. Hernandez had already assaulted Mario for “disrespecting” his girlfriend, and Sanchez wanted to protect his friend. Hernandez asked if Sanchez knew who he was talking to, and Sanchez replied, “Yes, you are Iran.” Hernandez replied, “This is Youngster, S.S.R. Via Lomas Varrio Ese.” Sanchez understood Hernandez’s statement as a threat —a way for him to let Sanchez know he claimed SSR. Sanchez responded, “I don’t give a fuck where you are from or what you are called by.” Hernandez replied, “You don’t give a fuck?” Sanchez said, “No.”
The last exchange was repeated three times before Hernandez punched Sanchez in the face. Afterward, Hernandez told Sanchez to watch his back and to tell Mario to do the same. Hernandez followed this warning with another. He said, “did you ever read the newspaper and hear about what happened to that monkey in Family Mob?” Sanchez knew the Family Mob criminal street gang and SSR were rivals, and he knew that a Family Mob member had been murdered by an SSR member. Sanchez thought Hernandez’s question was also a threat. He testified that he thought Hernandez’s statement about the murder meant “[t]hat he might do something to me, even to the extent of killing me if I hung out with Mario.”
Godinez and his friend tried unsuccessfully to open the passenger side door of Sanchez’s car while Hernandez repeated his warning that Sanchez should watch his back and tell Mario to do the same. When Hernandez, Godinez, and the third person walked away from Sanchez’s car, he drove out of the parking lot and away from the apartment complex.
Sanchez did not immediately report the incident to the police. He explained that he feared retaliation and did not want to be labeled a snitch, or be “dealt with,” which means he feared someone in SSR might hurt or kill him. Nevertheless, a few weeks later, Sanchez gave a statement to police and picked Godinez out of a photographic lineup. Sanchez testified that he had a cousin in the SSR gang, but he claimed his cousin would not protect him from Hernandez.
Godinez admitted that he and Hernandez were active members of SSR in November 2005, although he claimed to have disassociated himself from the gang before the trial started. He testified that Hernandez wanted Sanchez to tell him were he could find Mario. He claimed Hernandez just wanted to talk to Mario about something Mario purportedly said about Hernandez’s girlfriend who was also Godinez’s sister. Godinez admitted that he saw Hernandez punch Sanchez, but he claimed he did not hear Hernandez make any threats because he moved away from the car.
Gang Expert Testimony
Gang expert Joe Sandoval, a 12-year veteran of the Orange County Sheriff’s Department and a member of the Special Investigations Detail of the South County Gang Unit, explained the customs, habits, and rituals associated with criminal street gangs. Sandoval described the initiation process, or “jumping-in,” as a certain number of the gang’s established members beating the initiate for a set period of time. A “hit-up” occurs when one gang member meets another member or suspected member of a different gang and asks, “Where are you from?” The other gang member usually claims his gang in response. Sandoval testified, “Rivals are going to be hit up [on] sight . . . .” He also explained that a hit-up frequently leads to an assault and occasionally to murder.
Sandoval testified that some gangs claim a certain area as their “turf,” and that gang members patrol and protect this area to keep other gangs out. One way the gang marks its territory is with graffiti. Tattoos demonstrate gang loyalty, and gang members often have tattoos of their gang’s name, a street or park the gang claims as it turf, or their moniker or nickname. Common gang tattoos are the letter “M” for Mexico, the number “13” or the Roman Numerals XIII for Southern California, or a series of three dots for the phrase, “My crazy life.” SSR members generally have the tattoo SSR, VL for Via Lomas, CVL for Calle Via Lomas, or LH for Laguna Hills. The gang also uses certain colors and clothing styles to represent them, and they use graffiti, hand signs, and tattoos to communicate gang allegiance. Although gangs tend to be exclusive organizations, they do develop rivalries and alliances with other gangs.
Sandoval testified that “[v]iolence is a mainstay within the gang culture. The more violent a gang is, the more respected it’s going to be within the gang community, the more feared and intimidated that gang’s going to be within the general community.” The same holds true for individual gang members, “[t]he more violent an individual gang member is, the more respected he’s going to be within that gang.” Sandoval explained that respect is vital in gang culture, and that acts of disrespect will generate some type of retaliation. Within a gang, retaliation is referred to as being “taxed.”
Sandoval explained that SSR started in the early 1990’s and claims a specific area of Laguna Hills, including the Prado Apartment complex where Sanchez lived, as their turf. Over time, SSR formed an alliance with the Via Lomas gang, which is sometimes referred to as Calle Via Lomas. The integrated gang is known as Southside Via Lomas. SSR’s rivals are the Varrio Familia Flats gang in Rancho Santa Margarita, the Family Mob gang in Lake Forest, and the Varrio Viejo San Juan gang in San Juan Capistrano. In 2005, SSR had approximately 45 members. Sandoval testified that SSR’s primary activities are committing assault and battery, assault with deadly weapons, and drug and weapons crimes. He was familiar with a February 2004 murder of a Family Mob gang member by an SSR gang member. On that occasion Family Mob gang members used bats and knives in an attempt to gain entry into an SSR member’s apartment. When the SSR gang member called for help, the Family Mob gang members left the immediate area, but stayed nearby. Later, a confrontation between the two gangs erupted and one SSR member shot and killed a Family Mob member after the Family Mob member threatened him a baseball bat.
Sandoval testified that he has investigated at least 29 crimes committed by members or associates of SSR. Two of these crimes were used as predicate crimes. The first was committed by SSR members Anderson Melquiades Ostos and Hugo Vega Guzman. Guzman pled guilty to conspiracy to commit an aggravated assault, a weapons violation, vandalism, and active participation in a criminal street gang. The second predicate crime was committed by SSR member Louis Mota. Mota pled guilty to assault with a deadly weapon, making criminal threats, active participation in a criminal street gang, and vandalism. He admitted assaulting James Snordan with a knife, threatening to kill Antonio Martinez, and throwing a rock through a window. According to Mota, Hernandez and Arnulfo Iniguez were “equal actors,” and Hernandez pled guilty to assaulting Gary and Cindy Gregory with a rock.
Sandoval testified that in his opinion Hernandez was an active participant when he assaulted the Gregorys. He based his opinion on the fact that Hernandez committed the assault in SSR claimed territory with two other SSR gang members and said his gang’s name during the crime. Sandoval knew Hernandez had received at least two STEP notices, and he has seen Hernandez in photographs with other SSR members. Hernandez has numerous tattoos on his body, including the three-dot tattoo gang members associate with the phrase, “My crazy life.” He also has the word “Joker” tattooed on his back, which Sandoval stated was Hernandez’s previous gang moniker, the words “Southside Raza” tattooed across his chest just above the Roman Numerals XIII, the letters “OC” for Orange County on one arm, and a star that also represents Orange County on the other arm.
Section 186.22 is part of the Street Terrorism Enforcement and Prevention Act or STEP Act. Sandoval testified the STEP notice is a gang verification and advisement form generated by the Orange County Sheriffs Department’s Target Unit. The STEP notices are used to identify individual gang members and to give gang members notice of enhanced penalties for committing gang-related crimes.
Sandoval also opined that Hernandez was an active participant of SSR on November 6, 2005. In part, Sandoval based his opinion on past documentation, but he also thought it significant that the crime occurred in SSR claimed territory, was committed in association with another SSR gang member, and that Hernandez emphasized his gang’s name and gang moniker. When the prosecutor posed a hypothetical question based on the facts of this case, Sandoval opined that Hernandez committed the instant crimes for the benefit of SSR. He stated Hernandez engaged Sanchez in a routine gang hit up that escalated to battery because Sanchez disrespected him. Sandoval testified that it would not be uncommon for a disrespected gang member to assault and threaten the person who disrespected him, and he explained that SSR derives benefits from this type of crime because acts of violence bolster the gang’s reputation with other gangs and serves to further intimidate the residents of the Prado Apartments. He further opined that Sanchez’s tenuous family connections to SSR would not keep Hernandez from retaliating against him.
Hernandez’s Testimony
Hernandez, a self-proclaimed SSR gang member, admitted he knew about his gang’s criminal activities, and he admitted having a prior felony conviction. He claimed Sanchez was a member of the SSR’s allied gang, Via Lomas. Hernandez said he was just standing in the Prado Apartments’ parking lot with two friends when he saw Sanchez backing out of a parking spot. He wanted to ask Sanchez where Mario was because Mario had called his then-girlfriend (now his wife) a bad name. When Sanchez disrespected him, Hernandez had to retaliate and hit him. Hernandez said he knew Sanchez had family members in his gang, and that if he hurt Sanchez he would have been taxed by his own gang. He denied threatening Sanchez, or yelling gang slogans.
II
DISCUSSION
Sufficiency of the Evidence
Hernandez challenges the sufficiency of the evidence to support his conviction for making terrorist threats. When sufficiency of the evidence is challenged on appeal our role in reviewing the evidence is limited. It is not our task to reweigh the evidence and substitute our judgment for that of the jury. (People v. Escobar (1996) 45 Cal.App.4th 477, 481.) Instead, we review the entire record to determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Jones (1990) 51 Cal.3d 294, 314.) For this review, we consider the evidence in the light most favorable to the prosecution and presume the existence of every fact the jury could reasonably deduce from the evidence in support of the judgment. (Ibid.) Thus, where the record discloses substantial evidence, i.e., evidence that is reasonable, credible and of solid value, we accord due deference to the trier of fact. (Ibid.)
Relying on People v. Smith (1998) 64 Cal.App.4th 1458, the Attorney General contends Hernandez waived this argument by failing to move for a section 1181.1 dismissal at the close of the prosecution’s case. However, the Smith court held, “the failure of the defense at the conclusion of the People’s case to move for acquittal is a waiver of the claim that the evidence at that point was insufficient to sustain conviction.” (Id. at p. 1464, italics in original.) Smith did not hold that the defense waives the right to challenge the sufficiency of the evidence on appeal. In any event, we reject the Attorney General’s waiver argument because “issues of sufficiency of the evidence are never waived . . . .” (People v. Neal (1993) 19 Cal.App.4th 1114, 1122.)
To sustain a conviction for violation of section 422 for making criminal threats the prosecution must demonstrate: (1) the defendant willfully threatened to commit a crime that would result in death or great bodily injury to another person; (2) the defendant had the specific intent that the statement be understood as a threat; (3) the threat was unequivocal, unconditional, specific and immediate such that it conveyed the gravity of purpose and immediate prospect of being carried out; (4) the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate family’s safety; and (5) the fear was reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Hernandez claims his verbal exchange with Sanchez was nothing more than “puffing, posturing and mouthing off,” and that no reasonable person would have felt sustained fear as the result of what he said. We disagree.
Hernandez and Godinez, two SSR gang members, approached Sanchez and surrounded his car. Hernandez asked Sanchez for information on Mario’s whereabouts. Sanchez knew Hernandez had already assaulted Mario and refused to cooperate. When Sanchez not only refused to give him information but also verbally defended himself Hernandez punched and threatened him. While some of their verbal exchange could be classified as mere puffing and posturing, Hernandez’s reference to a murder and his warning that Sanchez better watch his back cannot be added to the category of innocuous posturing. Hernandez’s reference to murder was the ultimate warning, and that is exactly how Sanchez understood it. Sanchez was in fear the minute he saw Hernandez and Godinez. Hernandez’s threats only served to increase his fear, and his fear kept him from reporting the incident to the police for several weeks. The jury believed Sanchez’s testimony and disbelieved Hernandez’s innocent explanation. This court does not re-evaluate witness credibility, nor do we reweigh the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Moreover, Sandoval’s expert testimony explaining the culture of gangs and the emphasis gang members place on retaliation and respect supports the notion that any reasonable person in Sanchez’s position would have been placed in sustained fear by Hernandez’s statements. Hernandez admitted that he hit Sanchez because Sanchez’s defiance disrespected him. He simply argued he made no threatening statements. However, the fact Sanchez waited several weeks to report the incident validates his assertion of sustained fear. In short, substantial evidence supports the jury’s determination that Hernandez made criminal threats and violated section 422.
Sufficiency of the Evidence to Support the Gang Enhancement and Finding
The jury found true allegations Hernandez made criminal threats and committed a battery “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, subds. (b)(1), (d).) Hernandez contends insufficient evidence supports the gang enhancement and gang-related crime findings because there is no evidence he acted with the specific intent to promote, further, or assist in any criminal conduct by gang members.
“In determining whether the evidence is sufficient to support a conviction or an enhancement, ‘the relevant question is 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.’ [Citations.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.) According to Sandoval, Hernandez engaged Sanchez in a classic gang hit up with typical results. Hernandez and Godinez, two self-proclaimed SSR gang members, confronted Sanchez in the parking lot of the Prado Apartments in Laguna Hills, a recognized part of SSR’s claimed turf and a place where SSR gang members had committed other crimes. The fact the incident took place in the parking lot and not in Sanchez’s apartment and with the aid of another SSR gang member supports the conclusion Hernandez acted with the specific intent to further his gang’s reputation in addition to his own. Further, Hernandez made sure Sanchez knew his new gang name, and he made sure to reference his gang just before he punched Sanchez. After the punch, Hernandez used a menacing reference to an SSR-related homicide simply because Sanchez refused to tell him Mario’s whereabouts. Sanchez understood the threat and feared retaliation. If Hernandez had just wanted to talk to Sanchez, he could have approached Sanchez on neutral turf and alone. Instead, he decided to use his gang’s claimed territory, a fellow gang member, and references to his gang’s most heinous crime in an effort to maximize Sanchez’s fear. Under the circumstances, the evidence is more than sufficient to support the jury’s finding Hernandez made criminal threats and committed battery for the benefit of SSR.
Under this heading, Hernandez also contends Sandoval improperly added facts not in evidence to the prosecutor’s hypothetical question. Specifically, he points to Sandoval’s testimony that he heard from other people that gang suppression efforts directed at SSR actually enhanced the gang’s reputation. Defense counsel did not object at trial. Generally, the failure to object waives a claim of evidentiary error on appeal. (People v. Williams (1988) 44 Cal.3d 883, 906.) Consequently, Hernandez argues trial counsel’s failure to object to Sandoval’s improper testimony constitutes ineffective assistance of counsel. We disagree.
Although defendants have a constitutional right to effective counsel in criminal cases (Gideon v. Wainwright (1963) 372 U.S. 335), the burden is on the defendant to prove he received ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 691-692 (Strickland.) To do so, the defendant must show counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsel’s acts or omissions prejudiced the defendant. (Ibid.) Sandoval’s testimony about gang suppression efforts enhancing SSR’s reputation is arguably irrelevant hearsay and not of the “type that reasonably may be relied upon by an expert in forming an opinion . . . .” (Evid. Code, § 801, subd. (b).) However, we need not scrutinize counsel’s performance if the record demonstrates no reasonable probability of a more favorable outcome in the absence of the claimed error. (Strickland, supra, 466 U.S. at p. 697.)
Sandoval’s testimony encompasses over 50 pages of the reporter’s transcript and ranged over the broad topic of gang culture, habits, and language. He explained the origins of SSR, its membership, previous crimes, peculiar tattoos, and claimed territory. Sandoval’s single stray reference to unidentified people talking about some possible benefit SSR derived from gang suppression activities pales in comparison to the impact of the entirety of his expert testimony and to the facts of the underlying crimes. Thus, Hernandez fails to establish the second prong of the Strickland two-prong test. There is no reasonable probability of a more favorable outcome had defense counsel raised an objection to Sandoval’s errant testimony.
CALCRIM No. 1300
Section 422 defines making a criminal threat as follows: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person with the specific intent that the statement . . . is to be taken as a threat . . . .” (Italics added.) The court instructed the jury on the elements of making a criminal threat pursuant to Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 1300. The instruction includes as the third element that “[t]he defendant intended that his statement be understood as a threat.” Hernandez argues by omitting the word “specifically” in front of the word “intended” the instruction removes the specific intent element of the offense and risks the jury relying on general intent to support a conviction. We disagree.
The Attorney General asserts defense counsel’s stipulation to the instructions at trial waives Hernandez’s right to challenge them on appeal. However, “[t]he appellate court may review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (§ 1259.) A criminal defendant’s right to due process and a fair trial, which may be jeopardized by misinstruction on the elements of the offense, fits nicely into the category of “substantial rights.” (Sandstrom v. Montana (1979) 442 U.S. 510, 524; People v. Johnson (2004) 119 Cal.App.4th 976, 985.)
As the guide for using the CALCRIM instructions explains: “The instructions do not use the terms general and specific intent because while these terms are very familiar to judges and lawyers, they are novel and often confusing to many jurors. Instead, if the defendant must specifically intend to commit an act, the particular intent required is expressed without using the term of art ‘specific intent.’ Instructions 250-254 provide jurors with additional guidance on specific vs. general intent crimes and the union of act and intent.” (Judicial Council of California Criminal Jury Instructions (2007-2008) p. xxvi.) Consistent with this explanation, CALCRIM No. 1300 does not include the terms “specific” or “general” when referring to intent. Nonetheless, this instruction makes clear that a violation of section 422 requires a general intent to make a threat of death or great bodily injury and a specific intent that the threat be taken as such by the recipient.
Moreover, an appellate court determines the correctness of jury instructions from review of the whole charge of the court, not from parts of an instruction or from a particular instruction. (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753.) In addition to CALCRIM 1300, the trial court gave CALCRIM No. 252, which explains that a violation of section 422 requires “a specific mental state,” as did active participation in the criminal street gang, committing a crime for the benefit of a criminal street gang, and battery for the benefit of a criminal street gang. Here, the jurors were informed that in order to find Hernandez guilty of making criminal threats, they had to find he committed the prohibited act with the specific intent his statements be understood as a threat. Given the instructions as a whole, it would have added nothing to insert the word “specific” into the third element of the CALCRIM No. 1300 instruction. Accordingly, there is no reason to reject the usual presumption on appeal that the jury understood and followed the instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331.)
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J. FYBEL, J.