Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08CF2401, Gregg L. Prickett, Judge.
Richard Glen Boire, 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, Ronald Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Ricardo Leal and a separately tried codefendant, Jorge Avila Beliz, robbed the victims of a pit bull puppy. The jury found defendant guilty of robbery, active participation in a criminal street gang, and found true a gang enhancement alleged in connection with the robbery. Prior to returning the verdicts, the jury asked the court whether the prosecutor had to prove Beliz was a gang member for it to find the gang enhancement true as to defendant. We find the court did not err in answering the question: “No, it is not an element of that allegation. Please continue to refer to [CALCRIM] 1401 and all instructions.”
We upheld Beliz’s conviction in an earlier unpublished opinion. (People v. Beliz (Jun. 24, 2010, G042295).)
I
FACTS
The Robbery
On August 15, 2008, three boys, Alejandro A. (Alejandro), his younger brother Jose, and their friend E.S., were walking the brothers’ pit bull puppies in Santa Ana. One of the puppies was gray and the other was white with gray. One of the puppies was tired so the boys let it rest. While the dog was resting, Alejandro and the others were approached by Beliz. As Beliz approached, he walked by another man, called him a punk in Spanish, and said something about Minnie Street. Alejandro was afraid because he thought Beliz may be in a gang. He looked like a gang member to Alejandro.
Beliz asked how much one of the dogs would cost. Alejandro was looking to sell the white one. Beliz said the dog was tired and needed water. He picked up one the dogs and took it off its leash. Alejandro had been on the telephone, calling his father to see about selling the dog, but his father did not answer the call. At that point, a white Mitsubishi Eclipse arrived at their location. The driver was wearing gray pants, a white T-shirt, and was bald. Alejandro identified defendant as the driver of the white Mitsubishi. Alejandro did not see any tattoos on defendant.
Beliz said he was going to get water for the dog. Alejandro followed Beliz and the dog. Alejandro told Beliz the dog did not need water. Beliz got into the right front passenger seat of the white Mitsubishi with the dog. Thinking Beliz was trying to steal the dog, Alejandro attempted to punch him. Beliz told defendant, “Shoot him.” Defendant lifted his shirt. Alejandro saw a gun and afraid of being shot, jumped back. Jose and E.S. were “probably five feet” behind Alejandro at the time. Defendant tried to speed away, but had a problem with the transmission.
Alejandro went home, told his parents what happened and called the police. An officer responded within minutes. E.S. gave the officer the license number of the white car. Alejandro told the officer the gun he saw looked like the officer’s, only bigger.
Later that day, police drove the boys to a location to see if they could identify anyone from the robbery. The white Mitsubishi was there. They identified defendant as the driver from the robbery. The police then drove them to a second location. Beliz was there with Alejandro’s dog.
Jose said Alejandro, E.S. and he were walking their dogs when he saw a white Mitsubishi Eclipse about 39 feet away. He heard someone in the Mitsubishi call a pedestrian something derogatory. It appeared as if the person in the car was attempting to start a fight with the pedestrian. Jose thinks the person in the car also yelled out “Minnie Street.”
Jose said his group kept walking and they were approached by Beliz. He asked about buying the dogs and asked, “How much?” Jose said he would call to find out, but his father did not answer his telephone call. Beliz asked if he could pet the dog. Beliz picked the dog up, and took it off its chain. Beliz then asked defendant, the driver and sole occupant of a white Mitsubishi, if he had some water. Defendant said he had some in the back. Beliz walked to the car with the dog and put it into the backseat of the car. Beliz then got into the front passenger seat.
Jose saw Alejandro reach into the car for the dog. Jose then heard Beliz tell defendant to shoot Alejandro. Jose became frightened and saw defendant reach toward his right hip. Jose told the police he saw a large black handgun in defendant’s waistband.
E.S. said that while they were walking the dogs he saw Beliz walking toward them yelling “Minnie Street” at another individual. The other person ran away after being yelled at. Santa Ana Police Officer Adam Aloyian testified one of the boys told him that afternoon they had heard a “gang member” yell out “Minnie Street.”
Gang Evidence
Santa Ana Police Officer Brandon Sontag, testified as a gang expert. Sontag is familiar with Lopers, a criminal street gang, having investigated over 100 crimes involving the gang. Lopers has been around since the mid-1970’s, and had about 300 members on August 15, 2008. Its primary activities include the sales of narcotics and weapons violations. Members typically wear black or gray colors. Minnie Street is a clique within the Lopers gang. A Minnie Street member is a Loper.
Sontag is familiar with defendant. On four occasions defendant was contacted by police and admitted being a Loper gang member. Tattoos are the most visible means of showing allegiance to a gang. “LPS” is a common tattoo associated with Lopers. Defendant has “LPS” and “Lopers Gang” tattooed on his body. He also has “Lopers” tattooed across his stomach in eight to 12 inch letters.
Sontag said defendant was an active Lopers gang member on August 15, 2008. In reaching that opinion, Sontag considered where the crime was committed, that it was committed during daylight hours, and Minnie Street, a gang defendant had been associated with was called out. Sontag also did a background investigation on Beliz, reviewing field interview cards and gang notices served on Beliz, as well as Beliz’s prior arrests. Sontag opined Beliz, who lives in Lopers’ territory, was an active Lopers member on that date. Sontag considered it important that Beliz yelled out “Minnie Street” in the middle of Lopers territory, because gang members do not commit crimes with people they do not trust and here two Lopers members committed the crime in association with each other. “Calling out” is a challenge, almost an invitation to fight. Sontag added it is also a way of announcing the gang’s presence to nongang members the gang seeks to control through fear and intimidation.
In response to a hypothetical question closely tracking the evidence in this case, including whether Beliz, being an active gang member and calling out “Minnie Street, ” indicates the crime was either committed for the benefit of, or in association with, a criminal street gang, Sontag said gang members have to commit crimes to build respect in the gang. By committing the crime with a crime partner, there is a person who can vouch for defendant having committed the crime. Sontag said the manner in which this crime was committed benefits the gang because it instills fear in the community.
Defense Evidence
Defendant testified he knew Beliz for about a month and a half prior to the day he was arrested. Beliz was the boyfriend of defendant’s girlfriend’s sister. On August 15, 2008, defendant went to his girlfriend’s residence around 12:30 p.m. Beliz arrived about 30 minutes later. About 3:00 p.m., Beliz said he was hungry and asked defendant for a ride. To avoid traffic, defendant drove on 3rd Street. He said he saw “three little kids” walking two dogs and Beliz told him to “pull over.” Beliz said he wanted to see if the dogs were for sale. Defendant pulled over and stopped about 30 feet from the group. Beliz got out and approached the boys. Defendant did not hear what was said to the boys because he had the car radio on. He also denied hearing Beliz yell “Minnie Street.” According to defendant, “I didn’t see nobody. I didn’t hear nothing.”
He did see Beliz play with one of the dogs. Beliz talked to the boys for about three minutes and defendant then drove up to their location. A minute later Beliz returned to the car with a dog and asked defendant if he had any water. Defendant does not remember what he said in reponse. Beliz got into the passenger seat, put the dog in the back and said in Spanish, “Dale Buey, ” which roughly translates to “go fool” or “give it to him.” Defendant interpreted it to mean “go” as in drive. Knowing “something was up, ” defendant stepped on the gas, but the car had been in neutral. He put it into drive and saw Alejandro jump back. Defendant denied lifting his shirt.
Defendant was pulled over by the police later that afternoon. Officer Aloyian talked with defendant and wanted to know the location of the gun. Defendant said there was no gun. He said he did not know Beliz was going to steal the dog until Beliz returned to the car and told defendant to “dale.”
Defendant denied telling Aloyian that when Beliz told him to pull over, Beliz said he was going to “jack one of those dogs.” Defendant also denied telling Aloyian, “I knew he was going to steal it, I don’t know why I didn’t stop him. He told me he was going to take one of those dogs.”
Defendant testified he is a member of the Lopers gang, but that he stopped hanging out with Lopers in 2004 or 2005. He gave himself all but one of his Lopers tattoos when he was 13 years old. Defendant said Beliz is not a Lopers member, although Beliz lives in Lopers territory. He also denied the crime occurred in Lopers territory.
Stipulation & Rebuttal
The parties stipulated Jose previously testified the passenger in the car yelled “Little Minnie.” They also stipulated Alejandro previously testified he heard him say something like “Little Minnie.”
In rebuttal, Officer Aloyian testified he interviewed defendant on August 15, 2008. During that interview defendant said Beliz told him he was going to “jack these kids for the dog.”
Verdict and Sentence
The jury found defendant guilty of robbery (Pen. Code, § 211) and active gang participation (§ 186.22, subd. (a)). It also found the gang enhancement (§ 186.22, subd. (b)(1)) true, but was unable to reach a verdict on the firearm enhancement (§ 12022.53, subds. (b), (e)(1)), and a mistrial was declared as to that enhancement. The court sentenced defendant to a low term of two years on the robbery and a consecutive 10-year term on the gang enhancement. The court stayed the sentence on the substantive gang crime pursuant to section 654 and granted the prosecution’s motion to dismiss the firearm enhancement.
All statutory references are to the Penal Code unless otherwise stated.
II
DISCUSSION
The court gave CALCRIM 1401 in its original charge to the jury. In pertinent part, the instruction provided: “If you find the defendant guilty of the crime changed in count one..., you must then decide whether the People have proved the additional allegation that the defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang. [¶] To prove this allegation, the People must prove that: 1. The defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang; 2. The defendant intended to assist further, or promote criminal conduct by gang members.”
During deliberations, the jury asked the following question: “Did the prosecution have to prove that Beliz was an active member of Lopers (or Minnie Street) criminal street gang for [defendant] to be guilty of 186.22(b)(1)?” The prosecutor said the proper answer was “No.” Defendant asserted that answer, although accurate, would mislead the jury given the prosecution’s argument that defendant was liable for the enhancement because defendant committed the crime in association with Beliz, who was a Lopers member, and the expert’s testimony that the crime benefitted Lopers because both participants were members of Lopers. The court gave the jury the following written response to its question: “No. It is not an element of that allegation. Please continue to refer to CALCRIM 1401, as well as all of the Court’s instructions. Feel free to ask additional questions as needed.”
Defense counsel admitted a negative response to the question “is a correct statement of the law” and is “an accurate statement with respect to what the elements of 186.22 (b) are.”
Assuming the prosecution established the gang was a criminal street gang within the meaning of section 186.22 (see People v. Gardeley (1996) 14 Cal.4th 605, 617), and defendant does not contend it did not, the gang enhancement has two elements: (1) that the crime was “committed for the benefit of, at the direction of, or in association with any criminal street gang, ” and (2) that the defendant had “the specific intent to promote, further, or assist in any criminal conduct by gang members....” (§ 186.22, subd. (b)(1), italics added.) Defendant admits the enhancement does not require evidence the defendant assisted a fellow gang member in the commission of the charged offense. (People v. Hill (2006) 142 Cal.App.4th 770, 772-773 [gang enhancement found true where defendant committed the crime without another gang member being present].) Thus, the trial court was correct in stating the enhancement does not require the jury to find Beliz was a gang member.
Defendant does not challenge his conviction for active gang participation. That conviction required the jury to find the gang was a criminal street gang. (§ 186.22, subds. (a), (e) and (f).)
Defendant, however, argues the trial court prejudicially erred because the negative response was “pregnant with the message that the jurors either: (1) were excused from having to make a factual finding concerning Mr. Beliz’s gang status; or (2) could take as given that Mr. Beliz was an active member of the Lopers gang.” (Italics omitted.) As to the latter assertion, defendant did not develop the argument and cited only cases for the general proposition that in a jury trial the prosecution must prove each element beyond a reasonable doubt to the jury, not the judge. That argument is therefore forfeited. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) Moreover, we find nothing in the court’s answer that would cause any reasonable juror to believe Beliz’s gang membership was “given.” To tell the jury it need not determine whether Beliz was an active gang member in no way conveys the message it may assume Beliz is a gang member.
We need not decide whether the court’s response to the jury’s question would have been error had the only evidence in support of the enhancement been the fact that the crime was committed with another gang member. As stated above, the first element of the enhancement is satisfied by evidence the crime was committed “for the benefit of, at the direction of, or in association with any criminal street gang.” (§ 186.22, subd. (b)(1).) The evidence in this case supports a finding the crime was committed “for the benefit of” the gang regardless of whether defendant committed the robbery in association with another gang member.
A finding that the crime was committed for the benefit of a criminal street gang may be supported by evidence the commission of the crime would intimidate the civilian community, including witnesses. (See People v. Garcia (2007) 153 Cal.App.4th 1499, 1505-1506, 1511-1512 [possession of unlawful firearm increased gang’s status].) Here defendant, an active Lopers gang member, aided Beliz in stealing a pit bull puppy from three boys, after Beliz had just yelled out “Minnie Street.” Defendant had been associated with the Minnie Street gang, a clique of the Lopers gang. The crime was committed in broad daylight on a “fairly busy street” in Lopers territory and presumably visible to passersby. The expert testified one of the purposes of such a call out is to intimidate the civilian population, including witnesses. The calling out the gang’s name is evidence the crime was committed to benefit the gang. (See People v. Vasquez (2009) 178 Cal.App.4th 347, 354 [expert testified that as result of crime public would be “‘fearful to come forward, assist law enforcement, testify in court, or even report crimes’” benefits the gang].) A gang benefits when witnesses feel intimidated because its members are less likely to be arrested and prosecuted.
The gang enhancement does not require evidence that a defendant committed a crime in association with another gang member, when, as here, there is evidence defendant committed the robbery for the benefit of a criminal street gang. Accordingly, we find the court did not error in instructing the jury the prosecution did not have to prove Beliz was a gang member.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.