Opinion
C051773
4-20-2007
THE PEOPLE, Plaintiff and Respondent, v. JAVIER VIRELAS LOPEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury found defendant Javier Virelas Lopez guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a)), discharging a firearm at an occupied vehicle (§ 246), assault with a firearm (§ 245, subd. (a)(2)), transportation of an assault weapon (§ 12280, subd. (a)(1)), and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury also found true special allegations that defendant committed several of the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), used and discharged a firearm (§§ 12022.53, subd. (d), 1203.06, subd. (a)(1), 12022.5, subd. (a)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The court sentenced defendant to an aggregate prison term of 57 years to life.
All further statutory references are to the Penal Code.
On appeal, defendant contends there was insufficient evidence to support the true findings regarding gang enhancements under section 186.22, subdivision (b)(1). We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Candido Concepcion was driving members of his family to Elk Grove for a family fish fry. His wife, Wylette Baltrip, was seated in the front passenger seat and his brother, Clyde, and two of his cousins, Jasmine and Larry, were all seated in the back. Clyde was sitting behind Wylette on the passenger side, wearing a red work shirt.
Candido is of African-American and Puerto Rican descent, as is Clyde, although Clydes complexion is lighter than Candidos. Candidos wife and both of his cousins are African-American.
Shortly after getting on the freeway, several of the occupants in the car noticed a green sport utility vehicle (SUV) behind them. There were two people in the SUV — David Escamilla in the drivers seat and defendant in the front passenger seat. They were yelling "Fuck you, niggers" and "Whats up, dog, you want some?" Escamilla "jerk[ed]" the SUV toward Candidos car and defendant flipped Clyde off. When the SUV came up alongside Candidos car, Clyde flipped defendant off.
Defendant, a 22-year-old Hispanic male, is a validated member of the Sureño gang in Sacramento. He admitted to police that he has been a member of that gang since the age of 15.
Candido sped up, but the SUV kept pace next to him. Suddenly, Clyde said, "You guys, duck. He has a gun." The driver of the SUV leaned back and defendant pointed what appeared to be an AK-47 assault rifle through the drivers side window of the SUV and fired at them, penetrating the side of Candidos car and hitting Clyde in the torso.
A police expert testified at trial that the weapon was a MAK-90 Sporter semiautomatic assault rifle.
As the SUV sped away, Candido yelled out the license plate number and Wylette wrote it down on a napkin while Clyde called the police on his cell phone. Candido took the next exit off of the freeway and went straight to the hospital so that Clyde could be treated.
Defendant was pulled over later that night leaving Escamillas apartment. At the time of his arrest, he was found to be in possession of an assault rifle and several rounds of ammunition. Defendant was wearing a blue jacket and a blue bandana when he was taken into custody. Jasmine positively identified defendant in a field show-up.
An amended information charged defendant with attempted murder (count one), discharging a firearm at an occupied vehicle (count two), assault with a firearm (count three), transportation of an assault rifle (count four), and being a felon in possession of a firearm (count five). The amended information also alleged that defendant committed the offenses in counts one, two, and three for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); as to counts one and two, defendant discharged a firearm (§ 12022.53, subd. (d)), and as to count three, defendant used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)).
Defendant was interviewed later by Detective Thomas Higgins. According to defendant, the incident started when the occupants of Candidos car started "throwing gang signs." Defendant claimed Clyde "chewed [him] out" and flipped him off and then "showed [him] a gun." When Higgins asked what gang sign Clyde made, defendant said it was some "blood weird shit," demonstrating by holding up four fingers on one hand and one finger on the other (a reference to the number "14," indicating affiliation with the Norteño gang). Defendant initially told Higgins that he responded by flipping Clyde off, but later admitted he made a gang gesture back, holding up three fingers to represent the number "3" (short for the number "13," indicating that he was a member of the Sureño gang).
Clyde testified that defendant looked at him and nodded in a way that Clyde interpreted to mean, "whats up." Clyde responded with a similar nod. Defendant then inexplicably flipped him off, and Clyde returned the gesture. Clyde denied having any gang affiliation. He also denied that anything happened prior to the shooting that would have created some hostility between the two vehicles, such as one cars cutting off the other in traffic.
Police searched Candidos vehicle after the incident but found no weapons of any kind.
The prosecutions gang expert, Detective Christopher Mouzis, testified that Sureño gang members identify with the number "13" (corresponding to the letter "M," for Mexican Mafia, the thirteenth letter of the alphabet), the number "3" (short for "13"), the letter "S," and the color blue. In contrast, Norteño gang members identify with the number "14" (corresponding to the letter "N," for Norteño or Nuestra Familia, the fourteenth letter of the alphabet) and the color red.
At trial, the prosecutions gang expert, Detective Christopher Mouzis, testified that gangs obtain strength within the community by, among other things, instilling fear and intimidation in rival gang members and the community at large. He further testified that respect is of paramount importance to gang members, and a typical response to a show of disrespect would likely include "calling the other person out," returning a gang sign, or resorting to some form of violence. Mouzis also testified that defendant was a validated Sureño gang member in Sacramento.
Given defendants admitted status as a Sureño gang member, the facts that he wore the gang color (blue) and carried an assault rifle, and the fact that he gave the Sureño gang sign after being flipped off by Clyde, Mouzis concluded defendant committed the crimes for the benefit of the Sureño gang because he responded to being disrespected as a Sureño with violence and intimidation (i.e., shooting Clyde with an assault rifle).
Defendants gang expert, James Hernandez, Ph.D., opined that identifying oneself as a Sureño is not synonymous with being a member of a gang; it is, instead, a cultural identity. Hernandez concluded defendants acts were indicative of road rage, not gang affiliation.
The jury returned a verdict of guilty on all counts and found all enhancements to be true, including special allegations that defendant committed the crimes for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
The court sentenced defendant to an aggregate term of 17 years plus 40 years to life, comprised of the midterm of seven years as to count one, plus 25 years for the gun use enhancement and 10 years for the gang enhancement, both to be served consecutively; 15 years to life as to count two, plus 25 years to life (stayed pursuant to section 654) for the gun use enhancement; the midterm of three years as to count three, plus 10 years for the gang enhancement, four years for the gun use enhancement, and three years for the great bodily injury enhancement, all of which was stayed pursuant to section 654; the midterm of six years as to count four, to run concurrently; and the midterm of two years as to count five, stayed pursuant to section 654.
Defendant filed a late notice of appeal; however, this court granted his motion for relief and deemed the notice of appeal timely.
DISCUSSION
I. Sufficiency of Evidence to Show the Predicate Offenses Were During the Statutorily Defined Time Period
Defendant contends that without specific evidence that the predicate offenses were committed "during a statutorily defined time period," there was insufficient evidence to find a "pattern of criminal gang activity" for purposes of the gang enhancement allegation under section 186.22, subdivision (b)(1). We disagree.
The California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.), enacted by the Legislature in 1988, provides that "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished [as specified]." (§ 186.22, subd. (a).)
Subdivision (b) of section 186.22 creates a sentence enhancement for "any 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 . . . ."
Thus, the existence of a criminal street gang is an element of both the substantive offense and the enhancement. (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846.) To prove the existence of a criminal street gang, "the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a `pattern of criminal gang activity by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called `predicate offenses) during the statutorily defined period. [Citation.]" (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley); § 186.22, subds. (e), (f).)
The prosecution may present expert testimony on criminal street gangs to prove the elements of the criminal street gang offense and enhancement. (Gardeley, supra, 14 Cal.4th at pp. 617-620.)
The prosecution offered testimony from Detective Mouzis, its gang expert, to prove the predicate offenses for purposes of section 186.22, subdivision (b)(1). Mouzis was questioned about specific investigations of gang-related cases in Sacramento in which he had been involved, including a case involving an individual named Giraldo Rodriguez. Before he could respond to the prosecutors inquiry as to the date of the Rodriguez crime, defense counsel interposed an objection. The prosecution informed the court of its intent to "stipulate to the predicate offenses, then something I have to prove in order to show criminal street gang." The following colloquy then took place:
"Mr. Ortiz [Prosecutor]: I believe Mr. Smith and I are willing to enter into the stipulation that a Sureno gang has two predicates here in Sacramento area. In accordance to Penal Code Section 186.22, and the gang enhancement, under the area of pattern of criminal street [sic], pattern of criminal behavior, Mr. Smith asked the stipulation also include that [defendant] did not know either of the two persons stipulated to in regards to the predicate offense nor was he involved in that crime itself or those crimes themselves. And we agree to that.
"Mr. Smith [Defense Counsel]: Thats the stipulation.
"The Court: So well accept that as a fact for the jury, that the two incidents of criminal activity, two people were convicted of crimes involving Sureno gangs, and these crimes were done in the furtherance of gang activity to the benefit of the gang. However, those two crimes did not involve [defendant] in any way.
"Mr. Ortiz: Correct.
"The Court: Well accept that for the jury.
"Mr. Ortiz: So the stipulation is clear, and those are in accordance with Penal Code 186.22, subsection (b), subsection (1).
"The Court: Do we know what these crimes are?
"Mr. Ortiz: Yes.
"The Court: The other two crimes were
"Mr. Ortiz: Violation of Penal Code Section 664/187, attempted murder with a gang enhancement as well as [section] 245[, subdivision] (a)(2).
"The Court: Assault with a deadly weapon.
"Mr. Ortiz: Assault with a firearm.
"The Court: Assault with a firearm.
"Mr. Smith: The other part of the stipulation was [defendant] was not acquainted with or associated with the gang participants in those offenses.
"The Court: He was not involved or associated with the other two defendants.
"Mr. Ortiz: My problem is with the word, `associated. It was all within the Sureno gang. He did not know them.
"Mr. Smith: Acquainted.
"Mr. Ortiz: Thats correct.
"The Court: The reason the DA is doing this is to establish that the Sureno are a gang involved in criminal activity in Sacramento. [¶] All right. The Court will accept the stipulation on behalf of both parties."
Conceding the stipulation as set forth, defendant now contends it lacked evidence to establish the temporal requirement in the statute — that the predicate offenses were committed "during a statutorily defined time period." (People v. Duran (2002) 97 Cal.App.4th 1448, 1457; § 186.22, subd. (e).) We find that element was implicit in the parties stipulation.
The record makes clear that the parties understood the purpose of the stipulation was to short-cut the process of establishing a "pattern of criminal gang activity" by the Sureños in Sacramento for purposes of section 186.22, subdivision (b)(1). The stipulation was raised during the prosecutions attempt to elicit expert testimony regarding prior crimes by Sureño gang members in Sacramento (including the dates of those crimes); the prosecution stated, three times, that the stipulation was for the purpose of establishing the predicate offenses, specifically referring twice to section 186.22; and defense counsels only clarification of the terms of the stipulation related not to the temporal requirement, but to defendants knowledge of and involvement in (or lack thereof) those crimes and the persons involved.
In accepting the stipulation of the parties, the court reiterated its purpose was "to establish that the Sureno are a gang involved in criminal activity in Sacramento." Defendant made no objection at that time, nor did he request that the stipulation be limited with respect to the temporal element. His acquiescence with respect to that issue is further demonstrated by the fact that defense counsel made no mention of the lack of proof of the time element in his closing argument.
Based on these facts, we conclude that by stipulating to the two prior incidents of criminal activity that resulted in convictions for crimes involving Sureño gangs done in the furtherance of gang activity to the benefit of the gang, and by doing so specifically for purposes of meeting the requirements of section 186.22, subdivision (b)(1), defendant implicitly stipulated that those two offenses occurred during the statutorily defined time period.
II. Sufficiency of Evidence to Show the Crimes Were Committed for the Benefit of a Criminal Street Gang
Defendant also contends his admission that he "made a gang sign and felt disrespected," by itself, was insufficient to prove that the offenses were committed for the benefit of a criminal street gang for purposes of section 186.22, subdivision (b)(1). Specifically, defendant suggests his admission is suspect because it was made "in the early hours of the morning after the shooting" and after Detective Higgins "basically tells [defendant] that he had to return a gang sign in order to protect respect for his gang." The transcript of the entire interview belies that argument.
When Higgins asked what happened, defendant first responded that Clyde chewed him out, flipped him off, and showed him a gun. Higgins asked, "What gang sign?" Defendant responded by demonstrating the gesture and agreeing that it was some "blood weird shit." Although defendant initially denied "throwing" any gang sign back, saying "I just flipped him off," he later admitted that he threw up a "3" and demonstrated for Higgins how he did it. He agreed that the reason he made the gang sign was to show where he was from "and for respect."
Contrary to defendants suggestion, we do not find any impropriety in Higginss interview of defendant, nor is there any evidence that defendant was forced to respond as he did. We note that it was defendant, not Higgins, who first mentioned that gang signs were "thrown," explaining that the whole incident started when the occupants of Candidos car turned around and "started you know throwing gang signs." We also note defendant was given an opportunity to clarify or change his answers to Higginss questions at the end of the interview when Higgins read back defendants responses (including that defendant "threw up the left — did that 3 sign with [his] left hand that stands for, uh, 13, which is Surenos") and repeatedly asked him, "[D]o I have this story right?" Defendant confirmed that the information as given to Higgins was accurate and that he had nothing to add.
The prosecutions gang expert, Mouzis, testified that defendants admitted conduct of "throwing" the number "3" in response to Clydes disrespectful hand gesture and then shooting at Candidos car, viewed together with the indicia of defendants active gang affiliation (e.g., wearing blue, carrying an automatic weapon, using gang hand signs, gangster tattoos), was consistent with the behavior of a gang member who, perceiving disrespect toward him and his gang, resorts to violence to obtain respect for the benefit of the gang.
We conclude there was sufficient evidence to support a finding that the defendants crimes were committed for the benefit of a criminal street gang.
III. Correction of Abstract of Judgment
Although not raised by defendant, the People raise and concede the need for a correction in the abstract of judgment, which improperly reflects a five-year determinate sentence as to count two in addition to the indeterminate term of 15 years to life imposed by the trial court on that count. Specifically, the People point out that, contrary to the transcript of the courts imposition of sentence, the abstract and the clerks minutes incorrectly "reflect a total determinate term of 22 years in state prison, plus an indeterminate term of 25 years to life."
We accept the Peoples concession and shall direct the trial court to modify the abstract of judgment, striking any reference to the additional five-year sentence as to count two. (People v. Schultz (1965) 238 Cal.App.2d 804, 807; People v. Flores (1960) 177 Cal.App.2d 610, 613.)
DISPOSITION
The judgment is affirmed. The trial court shall prepare an amended abstract of judgment as directed in this opinion and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur:
NICHOLSON, Acting P.J.
ROBIE, J.