Opinion
E031658
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. FELIX ESTUARDO MAQUIZ, Defendant and Appellant.
Michael S. Sideman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry J.T. Carlton, Supervising Deputy Attorney General, and Kristine A. Gutierrez, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Felix Estuardo Maquiz was found guilty on three counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), one count of carrying a concealed firearm (Pen. Code, § 12025, subd. (a)), and one count of falsely identifying himself to a peace officer (Pen. Code, § 148.9, subd. (a)).
In connection with each of the three robberies and the concealed firearm charge, a criminal street gang enhancement was found true. (Pen. Code, § 186.22, subd. (b)(1) [gang enhancement].) In connection with the first robbery count, a personal firearm use enhancement was also found true. (Pen. Code, § 12022.53, subds. (a)(4), (b) [personal firearm use enhancement].) In connection with the second and third robbery counts, an enhancement for firearm use by a principal in a crime to which a criminal street gang enhancement applies was found true. (Pen. Code, § 12022.53, subds. (a)(4), (b), (e) [gang/vicarious firearm use enhancement].) Finally, in connection with the concealed firearm charge, defendant admitted a prior concealed firearm conviction. (Pen. Code, § 12025, subd. (b)(1).) He was sentenced to 20 years in prison.
Defendant contends the trial court erred by:
1. Denying defendants motion to bifurcate the trial of the gang enhancements.
2. Allowing the prosecutions gang expert to testify that defendant was guilty and that the gang enhancements were true.
3. Giving a defective jury instruction on the gang enhancements.
4. Sentencing defendant on both the gang enhancement and the gang/vicarious firearm use enhancement in connection with counts 2 and 3.
We will reject defendants first three contentions. The People concede his fourth contention. In addition to that sentencing error, however, we have found two more. Each tends to make defendants total sentence too short and thereby results in an unauthorized sentence. Thus, we must remand for resentencing.
I
FACTUAL BACKGROUND
A. Robbery on May 26, 1999 (Counts 2 and 3).
On Wednesday, May 26, 1999, at approximately 11:00 p.m., a man robbed an AM/PM mini-market in Perris. Two employees, Betty Walton and José Lopez, were in the store. The robber was wearing a dark ski mask. He pointed a dark, shiny, "new-looking" rifle at Lopez and said, "Its a robbery." A security videotape of the robbery showed a green color at the end of the robbers weapon. He picked up a cash drawer and walked out.
Walton followed the robber outside; she saw him get into the passenger side of a small pickup truck that was waiting in the middle of the parking lot. She described it as a maroon Nissan, with tinted windows and a chrome tow hitch in or near a "hump" in the bumper.
When the police interviewed Walton, she told them the robber was five feet eight inches tall and weighed about 160 pounds. At trial, however, she testified that he was five feet four or five inches tall. Defendant was five feet seven inches tall and weighed 155 pounds.
On Friday, May 28, 1999, a police officer on patrol in Perris noticed a maroon pickup, a tan Oldsmobile, and a white pickup, all "traveling at a high rate of speed" and "tailgating each other . . . ." He stopped the maroon pickup. It was a Nissan, with tinted windows. Defendant was the driver and the owner; one Ricardo Hoyos was his passenger.
When the police searched the truck, they found a loaded shotgun, shotgun shells, and a dark ski mask. The shotgun had a fiber optic sight at the end of the barrel which would emit a green glow. When asked about these items, defendant said, "Theyre all mine." He had the receipt for the shotgun in his wallet. Betty Walton identified defendants truck as the one she had seen the robber getting into.
June Payne was Hoyoss ex-girlfriend. She testified that on a Friday toward the end of May 1999, less than a week before defendant was arrested, she held a graduation party. On weeknights after this party, defendant and Hoyos were at her house every evening until 8:00 or 9:00 p.m. Then they went out, but they came back at "[m]aybe" 10:30 p.m. and stayed until midnight.
Wendy Hedges, Paynes cousin, had dated defendant. She confirmed that Payne held a graduation party on a Friday toward the end of May 1999 but before defendant was arrested. She testified that, after the party, defendant, Hoyos, and Payne spent "[j]ust about" every weekday evening at her house.
B. Robbery on June 10, 2001 (Counts One, Four and Five).
On June 10, 2001, about 4:50 a.m., Kenneth Cheney was robbed. He was using a pay phone outside Jennys Restaurant in Perris. His friends Michelle Heineman and Lashawn Delong were sitting on a bench, waiting for him. It was still dark out; the restaurant was not open yet, and no lights were on.
The robber was a Hispanic man. He came up behind Cheney. In his left hand, he was holding a silver semiautomatic handgun. He kept his right hand over his face.
When Heineman and Delong realized a robbery was in progress, they fled to a nearby Mobil station. Heineman testified that the robber was wearing a dark beanie pulled down to his eyebrows, a "puffy" black jacket with a white Nike logo on the back, and dark gloves. She also testified that he was five feet seven or eight inches tall. When asked if she recognized defendant, Heineman said, "Kind of, but its kind of hard without the beanie and stuff."
Cheney testified that the robber was wearing a knitted beanie, pulled down to his eyes, a thick, black coat, and black gloves. He was five feet eight or nine inches tall.
The robber told Cheney to give him his money or he would shoot him. He searched through Cheneys pockets and took his wallet. He then told Cheney to run home or he would kill him. Cheney ran to the same Mobil station.
Cheney told a 911 operator that the robber was five feet nine inches tall, weighing up to 200 pounds and wearing a black sweater.
When a police officer arrived at the Mobil station, Cheney told him the robber had been dressed all in black, including a black jacket with a white Nike logo on the back and a black cap. He did not mention gloves. He also said the robber was five feet seven or eight inches tall and weighed 160 to 170 pounds.
Within minutes after the robbery, the police arrested defendant a block or two away from the restaurant. He was wearing a thick black jacket with a white Nike logo on the back.
When defendant first saw the police, he threw something into some bushes. There, the police found a loaded silver .22-caliber handgun, wrapped in a bandanna. Defendant had eight .22 bullets, which matched the bullets in the gun. He also had $70. He did not have a beanie or gloves, nor did he have the victims wallet. He gave the police a false last name.
The police brought Cheney and his two friends to an in-field showup. All three of them identified defendant. Cheney recognized him by his coat. Heineman recognized his features, his height, his clothing, his gun and his walk.
About a month later, the police had defendant participate in a six-man lineup. All of the participants were asked to put on defendants jacket and to speak. Based on their voices, Cheney was "stuck between" number three and number five. Heineman was "[u]nsure" as between number one and number three. (The exhibit indicating what number defendant was has not been transmitted to us.)
C. Gang Evidence.
Deputy Eric Brewer, a gang expert, testified that defendant was an active member of the Perres Mara Villa (PMV) gang. Defendants moniker was "Mr. Lucky." Hoyos was also a member of the gang.
According to Deputy Brewer, PMVs primary activities included homicide, robbery, carjacking and the intimidation of witnesses and victims. He testified that on May 28, 1999, when the police stopped defendants pickup, gang members in the maroon pickup and the tan Oldsmobile had been chasing the white pickup in an attempt to retaliate against a witness.
In Deputy Brewers opinion, the robberies in this case were committed for the benefit of PMV. A robbery by a gang member benefits the gang because the gang will be more feared and respected and because the loot will be shared with other members and used to further the gangs activities.
II
REFUSAL TO BIFURCATE TRIAL OF THE GANG ENHANCEMENTS
Defendant contends the trial court erred by denying his motion to bifurcate the trial of the gang enhancements.
The trial court has discretion to bifurcate issues for trial. (Pen. Code, § 1044; People v. Calderon (1994) 9 Cal.4th 69, 74-75.) "The determination whether the risk of undue prejudice to the defendant requires that the trial be bifurcated rests within the sound discretion of the trial court, and that determination will be reversed on appeal only if the trial court abuses its discretion." (Id. at p. 79.) However, refusing to bifurcate an enhancement is an abuse of discretion when admission of the evidence of the enhancement in the trial on the underlying offense would pose a substantial risk of undue prejudice. (See id., at pp. 77-78 [prior conviction enhancement allegation].) Bifurcation is not required when the assertedly prejudicial evidence is cross-admissible — that is, when the evidence relevant to the enhancement is also relevant and admissible in the trial on the underlying offense. (Id. at pp. 78-79.)
"[I]n a gang-related case, gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 193.) Here, the gang evidence was relevant to motive. The jury was instructed — correctly — that "[p]resence of motive may tend to establish the defendant[ i]s guilty. Absence of motive may tend to show the defendant is not guilty." (CALJIC No. 2.51 (6th ed. 1996).) Deputy Brewer testified that defendant committed the robberies to benefit PMV. He explained that a robbery committed by a gang member helps the gang gain "respect," which, to gang members, means fear and intimidation. He also explained that the loot will be used to further the gangs activities.
Such evidence of motive was particularly probative in this case. It was stipulated that, immediately after the June 2001 robbery, defendant had $70 on his person. In closing argument, defense counsel argued this fact was "important" because it tended to show that defendant had no motive for the robbery. The gang evidence rebutted this argument by showing that defendant had a nonfinancial motive for robbery.
Because much of the gang evidence would have been admissible in a trial limited to the robberies, the trial court did not abuse its discretion by refusing defendants motion to bifurcate.
In a subsidiary contention, defendant argues the trial court erred by failing to give a limiting instruction concerning the gang evidence. Defense counsel, however, never requested such an instruction. "[A]bsent a request by defendant, the trial court has no sua sponte duty to give a limiting instruction. [Citations.]" (People v. Macias (1997) 16 Cal.4th 739, 746 fn. 3; see also Evid. Code, § 355.) Thus, the trial court likewise did not err in this respect.
III
OPINIONS EXPRESSED BY THE GANG EXPERT
Defendant contends the trial court erred by allowing the gang expert to testify that defendant was guilty of the charged robberies and that the alleged gang enhancements were true.
A. Additional Factual and Procedural Background.
Defendant filed a written motion in limine to exclude the gang experts testimony under the Kelly/Frye standard for the admissibility of scientific evidence. (People v. Kelly (1976) 17 Cal.3d 24; Frye v. U.S. (D.C. Cir. 1923) 293 Fed. 1013.) The trial court denied the motion.
On direct examination, Deputy Brewer testified:
"Q. Prior to your coming to court to testify today, did you review the reports that comprise this case?
"A. Yes, I did.
"Q. And at some point during your case, have you spoken with the officers involved in the two robberies from June 10th, 2001, and May 26th, 1999?
"A. Yes, I have. [¶] . . . [¶]
"Q. Okay. And with that in mind, what Id like to ask you, given everything youve told us earlier, [i]n your opinion did the defendants actions in — starting with the June 10th, 2001, robbery — did they constitute some sort of benefit for the Perres Mara Villa gang?
"A. Yes, they did.
"Q. Could you explain to the jury how you arrived at that opinion[?]
"A. It furthered knowledge of, fear and intimidation factor for the gang and for the individual as a member of that gang. But also the benefit of anything that was obtained through the crime, the gang could benefit from that. [¶] . . . [¶]
"Q. Moving your attention to May 26th, 1999. [A]nd I believe you said youre familiar with that incident as well?
"A. Yes.
"Q. All right. Are you able to form an opinion as to whether or not that crime itself, the defendants actions in that crime constituted a benefit for the Perres Mara Villa gang?
"A. Once again, the fear and intimidation factor continues, and any money that was taken in the crime can be used by those gang members to further their activities."
At a break, defense counsel objected "to the foundation for [the gang experts] expertise." He explained that he had not objected earlier "because the [c]ourt requested I take him on cross instead of voir dire." The trial court allowed the belated objection, but overruled it.
B. Analysis.
Defendant acknowledges that an experts opinion is not inadmissible solely because it embraces the "ultimate issue." (See Evid. Code, § 805.) He argues, however, that in this case the experts opinion was inadmissible because it would not assist the trier of fact. (See Evid. Code, § 801, subd. (a).)
Preliminarily, the People argue that defendant waived this contention by failing to object on this ground at trial. We agree. (Evid. Code, § 353, subd. (a).) The objections defendant did raise were on specific and distinct grounds. The fact that the trial court overruled those objections does not show that an objection on his current grounds would have been futile.
Separately and alternatively, defendants contention lacks merit. "As a general rule, the opinion of an expert is admissible when it is `[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . . (Evid. Code, § 801, subd. (a).) Additionally, in California: `Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact. (Evid. Code, § 805.)" (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178.)
"Notwithstanding Evidence Code section 805, an `expert must not usurp the function of the jury . . . . [Citations.] [¶] Expert opinions which invade the province of the jury are not excluded because they embrace an ultimate issue, but because they are not helpful (or perhaps too helpful). `[T]he rationale for admitting opinion testimony is that it will assist the jury in reaching a conclusion called for by the case. "Where the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions, then the need for expert testimony evaporates." [Citation.] [Citations.] In other words, when an experts opinion amounts to nothing more than an expression of his or her belief on how a case should be decided, it does not aid the jurors, it supplants them." (Summers v. A.L. Gilbert Co., supra, 69 Cal.App.4th at pp. 1183, quoting People v. Humphrey (1996) 13 Cal.4th 1073, 1099 and quoting People v. Torres (1995) 33 Cal.App.4th 37, 47, quoting Lampkins v. U.S. (D.C.App. 1979) 401 A.2d 966, 969.)
"A bright line cannot be drawn to determine when opinions that encompass the ultimate fact in the case are or are not admissible. The issue has long been a subject of debate. [Citations.]" (People v. Killebrew (2002) 103 Cal.App.4th 644, 651-652.) "`"[T]he decisive consideration . . . is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. [Citations.]" [Citation.] [Citation.]" (Id . at p. 656, quoting People v. Gamez (1991) 235 Cal.App.3d 957, 964, quoting People v. Cole (1956) 47 Cal.2d 99, 103-104.) "Moreover, the decision of a trial court to admit expert testimony will not be disturbed on appeal unless a manifest abuse of discretion is shown. [Citation.]" (People v. Roberts (1992) 2 Cal.4th 271, 298.)
In People v. Gardeley (1996) 14 Cal.4th 605, a gang expert was asked, in the form of a hypothetical question, whether the charged assault was "gang related activity." (Id . at pp. 612-613.) He responded that it was "a `classic example of how a gang uses violence to secure its drug-dealing stronghold." (Id. at p. 613.) He explained that "[i]t is common practice for several gang members acting in concert to assault a person in full view of residents of an area where the gang sells drugs. Such attacks serve to intimidate the residents and to dissuade them from reporting the gangs drug-dealing activities to police." (Ibid.) The Supreme Court noted that the jury could reasonably find, based on this expert testimony, that the crime was committed for the benefit of the gang. (Id. at p. 619.)
It is instructive to contrast Gardeley with People v. Torres, supra, 33 Cal.App.4th 37. There, the defendant, on behalf of a gang, collected "rent" from drug dealers operating in the gangs territory. (Id. at p. 42.) He was convicted of two counts of attempted robbery based on two incidents in which he pointed a gun at each victim and demanded money. (Id. at pp. 42, 51.) A gang expert testified that the defendant was a gang member. He also testified about how "collecting rent" worked. (Id. at p. 43.) He then proceeded to testify that the defendants activities constituted robbery rather than extortion, as follows:
"Q. You just had a question which is, would you consider this `collecting of rent basically extortion. You said not exactly. How would you describe it?
"A. Well, I would describe it as a robbery. My definition of robbery is taking of someones personal property through force or fear with the immediate danger of something happening to you. I know that is taking place. That is what happened in this particular case. Then when you get extortion, yes, that is happening also, but its a two-fold issue.
"Q. Whats extortion?
"A. Extortion is taking of somebodys personal property with a fear of a later threat against yourself.
"Q. In other words, if I have a gun on you right now and demand your money, what is that?
"A. Its a robbery." (People v. Torres, supra, 33 Cal.App.4th at p. 44.)
The appellate court held that this testimony was inadmissible, for three reasons. First, the expert improperly gave an opinion on the legal definition of a crime. (People v. Torres, supra, 33 Cal.App.4th at pp. 45-46.) Second, the expert improperly gave an opinion concerning the defendants guilt. (Id . at pp. 46-47.) The court explained: "A consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant. [Citations.] . . . [T]he reason . . . is not because guilt is the `ultimate issue of fact to be decided by the jury. Opinion testimony often goes to the ultimate issue in the case. [Citations.] Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt." (Id. at pp. 46-47.) Third, the expert improperly gave an opinion as to whether a crime had been committed. The court reasoned by analogy to the rule that an expert cannot give an opinion that the defendant is guilty. (Id. at pp. 47-48.)
The testimony in this case is much closer to that in Gardeley than that in Torres. Under Gardeley, the prosecutor could have asked essentially the same questions, as long as he worded them in hypothetical form. Indeed, in defendants reply brief, he suggests that the only vice of the challenged testimony was that the prosecutors questions referred to "the defendant" rather than to a hypothetical gang member.
We believe the jury would have understood the prosecutors reference to "the defendant" as tantamount to a hypothetical. Deputy Brewer testified that he was familiar with the facts of the two "robberies," from the police reports and from talking to the police officers involved; he then testified that "the defendants actions" in each "robbery" (or "crime") were for the benefit of the gang. Thus, unlike the gang expert in Torres, he did not testify, based on his expert opinion, that defendant was, in fact, the alleged robber; nor did he testify, based on his expert opinion, that the alleged robbers actions did, in fact, constitute robbery. Indeed, it was undisputed that someone had committed two robberies. Deputy Brewer simply accepted the assumption — implicit in the prosecutors question — that defendant was the person who had committed them; he then testified, on that assumption, that they benefited the gang.
Even assuming Deputy Brewer thereby testified, at least implicitly, that defendant was the robber, it was clear that his testimony to this effect was based on the facts stated in the police reports, rather than on his expert opinion. For example, the jury would not have understood him to be opining that the maroon Nissan pickup at the AM/PM was, in fact, defendants maroon Nissan pickup; or, even if it was, that defendant was, in fact, the person who jumped into it. It would have understood that it still had to make these determinations. Thus, we agree with the People that, while it may be unfortunate that the prosecutor referred to "the defendant" in his questions, the gang expert never actually gave an opinion that defendant was guilty.
Defendant also argues that the expert should not have been allowed to opine that the gang enhancements were true. Once again, however, he did not give such an opinion. One of the elements of the gang enhancements was that the charged crimes were committed for the benefit of, at the direction of, or in association with a gang. (Pen. Code, § 186.22, subd. (b)(1).) The gang enhancements, however, had numerous other elements, including that (1) defendant had the specific intent to promote, further, or assist in criminal conduct by gang members, (2) the gang was an ongoing organization, association, or group of three or more persons, (3) one of the gangs primary activities was the commission of one or more specified criminal acts, (4) the gang had a common name or common identifying sign or symbol, and (5) the gangs members had engaged in a pattern of criminal gang activity (an element which can be broken down into additional subelements). (Pen. Code, § 186.22, subds. (b)(1), (f).)
"So long as expert testimony assists the trier of fact, it is proper even though it provides evidence of the elements of the allegations charged." (People v. Gamez, supra, 235 Cal.App.3d at p. 965, overruled on other grounds in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10.) Thus, an expert opinion that one element of a crime (or an enhancement) is present is not tantamount to an opinion that the defendant is guilty (or that the enhancement is true). (People v. Valdez (1997) 58 Cal.App.4th 494, 509.) Indeed, often a jury must make its finding on one or more elements of a crime or enhancement based solely on expert testimony. (See, e.g., People v. Catlin (2001) 26 Cal.4th 81, 131-133 [expert testimony concerning cause of death in homicide prosecution].) Eventually, Deputy Brewer expressed an opinion on most, if not all, of the elements of the enhancements. However, he never opined that the enhancements were true. The jury was free to pick and choose among his opinions and hence to find some elements present but not others.
Under Torres as well as Gardeley, Deputy Brewer could properly testify that, assuming certain facts were true, the element of the enhancement which requires that the charged crimes be committed for the benefit of a gang was satisfied. He explained that the crimes helped the gang to maintain a climate of fear and intimidation and provided funding for the gangs activities. Deputy Brewers testimony on this element of the enhancement went beyond the common experience of lay jurors such that it was reasonably calculated to assist the trier of fact.
Finally — and, again, separately and alternatively — even assuming the gang expert did give improper opinion testimony, the error was not prejudicial. As defendant concedes, the applicable harmless error standard is that of People v. Watson (1956) 46 Cal.2d 818. (See People v. Bowker (1988) 203 Cal.App.3d 385, 395 [erroneous admission of expert testimony about child sexual abuse accommodation syndrome, tending to show the child was in fact abused]; People v. Sergill (1982) 138 Cal.App.3d 34, 41 [erroneous admission of expert testimony that witness was telling the truth].) Thus, we ask whether it is reasonably probable that defendant would have enjoyed a more favorable result in the absence of the error. (Watson at p. 836.)
To the extent that Deputy Brewer expressed an opinion that defendant was guilty, the jury was unlikely to give his opinion much weight. The trial court duly instructed the jury (see Pen. Code, § 1127b) that "[a]n opinion is only as good as the facts and reasons on which it is based. . . . [¶] . . . You are not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable." (CALJIC No. 2.80 (6th ed. 1996).) Deputy Brewer had qualified as an expert on gangs, not on determining a persons guilt. Moreover, he expressed this opinion implicitly, at most. The jury would have known that it was to determine defendants guilt based on all of the evidence before it. His opinion was an insignificant part of that mix.
To the extent that Deputy Brewer expressed an opinion that the gang enhancements were true, that opinion followed more or less ineluctably from his other, unchallenged opinions. These included his opinion that defendant was a member of Perres Mara Villa, that Perres Mara Villa was a criminal street gang, and that criminal street gangs benefit from the commission of robberies by their members. His opinion that the gang enhancements were true would merely be the icing on the cake.
In sum, we conclude that defendant waived the asserted error; the trial court did not err; and, even if it did, the error was not prejudicial.
IV
JURY INSTRUCTION ON THE CRIMINAL STREET GANG ENHANCEMENTS
Defendant contends the trial courts instruction on the gang enhancements was defective in two respects: (1) it failed to inform the jury that the prosecution had the burden of proving these enhancements beyond a reasonable doubt, and (2) it failed to define a gangs "primary activities."
A. Additional Factual and Procedural Background.
Concerning the gang enhancements, the trial court gave the jury the following special instruction:
"If you find the defendant guilty of one or more of the crimes charged in Count 1, 2, 3, or 4, you must then determine whether the defendant committed a violation of Penal Code Section 186.22(b).
"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, and who acts with the specific intent to promote, further, or assist in any criminal conduct by gang members, is guilty of a violation of Penal Code Section 186.22(b).
"`Criminal street gang means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission or attempted commission of robbery, in violation of Penal Code Section 211; unlawful homicide, in violation of Penal Code Section 187; intimidation of witnesses and victims, violation of Penal Code Section 136.1; carjacking, a violation of Penal Code Section 215, which has a common name or common identifying symbol, whose members individually or collectively engage in a pattern of criminal gang activity.
"`Pattern of criminal gang activity means the commission and attempted commission, solicitation of, or conviction of two or more of the following crimes, namely, attempted murder, in violation of 664/187; and intimidation or dissuading a witness by force or threat of force, in violation of Section 136.1; carjacking, violation of Penal Code Section 215; and robbery, violation of Penal Code Section 211, provided that at least one of these crimes occurred after September the 23rd, 1988, and that the last of these occurred within three years after a prior offense and the crimes are committed on separate occasions or by two or more persons.
"In order to prove a violation of Penal Code Section 186.22(b), each of the following elements must be proved:
"1. The defendant is guilty of the underlying crime;
"2. The defendant commits a crime for the benefit of, at the direction of, or in association with a criminal street gang;
"3. The defendant acted with a specific intent to promote, further, or assist in any criminal conduct by gang members.
"If found guilty of any of the felonies in Count 1, 2, and 3, that felony may be used to find a pattern of criminal street gang activity."
This case was tried in 2002. In 2003, the Committee on Standard Jury Instructions promulgated a pattern jury instruction for use in cases in which a gang enhancement is alleged. (CALJIC No. 17.24.2 (7th ed. 2003).) Unlike the instruction given in this case, the pattern instruction states: "The People have the burden of proving the truth of this allegation." (Ibid.) It also states: "The phrase `primary activities, as used in this allegation, means that the commission of one or more of the crimes identified in the allegation, be one of the groups `chief or `principal occupations. This would of necessity exclude the occasional commission of identified crimes by the groups members." (Ibid.)
B. Failure to Instruct That the Reasonable Doubt Standard of Proof Applied.
Concerning the instructions failure to mention the reasonable doubt standard of proof, the Supreme Courts decision in People v. Frye (1998) 18 Cal.4th 894 is virtually on point. There, the trial court instructed on the elements of the alleged armed principal enhancements (Pen. Code, § 12022, subd. (a)) but failed to instruct that the prosecution had the burden of proving them beyond a reasonable doubt. (Frye at p. 964.)
The Supreme Court held that the jury was nevertheless adequately instructed: "Despite the trial courts omission, there is no reasonable likelihood the jury misperceived the standard of proof applicable to determining the truth of the firearm enhancement allegation. As previously noted, the jury was instructed that defendant was presumed innocent, that in the case of a reasonable doubt as to his guilt he must be found not guilty, and that the prosecutor had the burden of proving defendants guilt beyond a reasonable doubt. Jurors were also instructed that the murder charges and the degree of murder, the special circumstance allegations, and the personal use of a weapon allegations had to be proved beyond a reasonable doubt. The jury was instructed only once to utilize a different standard of proof when the court explained that defendant had the burden of proving by a preponderance of the evidence that [a witness] was an accomplice. Taken together, these instructions indicated to the jury that the prosecutors burden throughout trial was proof beyond a reasonable doubt. [Citations.]" (People v. Frye, supra, 18 Cal.4th at p. 965; see also People v. Scott (2001) 91 Cal.App.4th 1197, 1211-1212 [failure to instruct that prosecution had burden of proving firearm use enhancement beyond a reasonable doubt was harmless because trial court otherwise instructed on reasonable doubt]; People v. Louis (1977) 75 Cal.App.3d 620, 625 [same].)
Here, almost identically, the jury was given the standard reasonable doubt instruction. (CALJIC No. 2.90 (6th ed. 1996).) It was further instructed that the prosecution had the burden of proving beyond a reasonable doubt: (1) "each fact which is essential to complete a set of circumstances necessary to establish the defendants guilt" (CALJIC No. 2.01 (6th ed. 1996)); (2) identity (CALJIC No. 2.91 (6th ed. 1996)); (3) that defendant was present when the crime was committed (CALJIC No. 4.50 (6th ed. 1996)); (4) the personal firearm use enhancement to count 1 (CALJIC No. 17.19 (2000 rev.) (6th ed. pocket pt.)); and (5) the gang/vicarious firearm use enhancements to counts 2 and 3. Moreover, it was instructed that defendant had the right not to testify and to rely on the prosecutions failure "to prove beyond a reasonable doubt every essential element of the charge against him." (CALJIC No. 2.61 (6th ed. 1996).) Finally, it was instructed to consider the jury instructions "as a whole, and each in light of all the others." (CALJIC No. 1.01 (6th ed. 1996).) Unlike in Frye, here the jury was never instructed on any other standard of proof.
For this reason, even if the trial court did err, the error was harmless beyond a reasonable doubt as to counts 2 and 3.
Gaut, J.
I respectfully dissent from that portion of the majority opinion affirming the finding that the sentence of defendant Maquiz should be enhanced under Penal Code section 186.22 because his crime was committed for the benefit of a criminal street gang. Section 186.22, subdivision (b)(1) requires evidence that the felony be committed for the benefit of, at the direction of, or in association with a criminal street gang, "with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ."
The jury convicted defendant for the May 26, 1999, robbery of the AM/PM market in Perris and the June 10, 2001, robbery of Kenneth Cheney at a pay phone outside Jennys restaurant in Perris. Deputy Brewer of the Riverside County Sheriffs Department testified as an expert on the gang issues. Deputy Brewer had the special knowledge, skill, experience, training and education sufficient to qualify as an expert. Evidence Code section 801 allowed him to testify as to an opinion based on matters perceived by, or personally known, or made known to him at or before the hearing that are of the type that reasonably may be relied on in forming an opinion on the subject to which his testimony related.
Deputy Brewer identified pictures, monikers, and slogans pertaining to the local Hispanic gang known as the Perres Mara Villa gang, frequently referred to as the PMV. He testified to crimes committed by some of the members of the PMV. He identified pictures of defendant Maquiz participating in gang functions. He testified that he had personally contacted Maquiz and knew Maquizs gang moniker — Mr. Lucky. Deputy Brewer concluded, without objection, that Maquiz was an active member of PMV.
Deputy Brewer was asked if the fact that when Maquiz was arrested, he had ammunition with him, no identification, and gave a false name to police, was a factor in deciding the crimes with which Maquiz was charged were gang crimes. Brewer testified that the "whole gang lifestyle leads us to the potential for carrying weapons around whenever you go out, anywhere youre going" "[n]ot only to assist in the commission of crimes but in protection against other gang members as the need may arise."
Deputy Brewer speculated as to how the crimes with which Maquiz was charged benefited the PMV. He suggested that a robbery committed by a gang member alone "can benefit the gang" because the gang member wants to "further his respect with other gang members." Brewer called it the "fear and intimidation factor." "The more feared you are, the more intimidating you are, the more respect you obtain." Brewer also suggested that the fear and intimidation goes out into the community. In addition, testified Brewer, the fruits of the crime are beneficial to the gang. The gang member is "going to share those things [fruits of the crime] with other members of the gang. Maybe the individual owns a vehicle and he uses that money to pay for gas or maintenance on his vehicle, and then his vehicle is used by the gang in the commission of other crimes or in their daily travels and stuff."
Deputy Brewers opinions regarding the purpose and effect of the robberies was pure conjecture. He had no more knowledge as to the reasons behind the robberies than did the jury. He could have opined that members of the PMV gang will, on occasion, separately or with other members, participate in robberies for the benefit of the PMV gang. However, he usurped the province of the jury by concluding that the Maquiz robberies were for the benefit of PMV. Deputy Brewer did not begin to show that the two crimes for which Maquiz was convicted were for the benefit of a criminal street gang.
"Expert opinions which invade the province of the jury are not excluded because they embrace an ultimate issue, but because they are not helpful (or perhaps too helpful). `[T]he rationale for admitting opinion testimony is that it will assist the jury in reaching a conclusion called for by the case. "Where the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions, then the need for expert testimony evaporates" [Citation.]"
Brewer testified Maquizs robberies would result in respect with other gang members, fear and intimidation in the community, and he would share the fruits of the crime with other members of the gang, perhaps to maintain his vehicle for use by the gang. That is utter and complete speculation. There is no evidence that Brewer had the slightest idea why Maquiz initiated the robberies or that they had an effect upon the community or his gang. Maquizs possession of ammunition, the lack of identification, and providing a false name would be the hallmark of any self-respecting robber. To suggest that only gang members would be found in those circumstances is utter nonsense.
Expert testimony is clearly important to a street-gang criminal trial. However, it should not be allowed to exceed the bounds of common sense. The testimony of Deputy Brewer evidencing Maquizs membership in the gang was certainly relevant, as was his knowledge of the general criminal conduct of the PMV and the relationship between the members of the gang. His speculation about the motives of Maquiz in the robberies and the alleged benefits to the PMV were not relevant. That conclusion was for the jury to make, providing there was sufficient evidence upon which it could reach a conclusion.
The Fifth District Court of Appeal considered a similar issue in People v. Killebrew. The Bakersfield police stopped three cars driving together shortly after a street gang opened fire on members of another street gang, killing two people. The officers recognized some of those in the cars as members of the gang who had apparently fired the shots. The police concluded that that the three cars were traveling together and were carrying weapons for the joint protection of the passengers. The defendant was in none of the cars stopped, but was arrested on the street near the stopped cars. A handgun was found in one of the cars and another was found next to a dumpster in the taco stand where the other two cars were stopped.
A gang expert testified that when one member of a gang has a gun every other gang member in the car knows of the gun and will constructively possess the gun. The Killebrew court provided an exhaustive list of cases dealing with expert witness testimony on the issues of gang psychology and sociology and culture. It rejected, however, the experts testimony to the extent the expert concluded "that a specific individual had specific knowledge or possessed a specific intent." The court concluded that the experts testimony was of "the type . . . that did nothing more than inform the jury how [the expert] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded."
The conclusion of the court in Killebrew applies here. Brewer attempted to testify that Maquiz possessed a specific intent when he robbed the two individuals. That was nothing more than his statement how he believed this case should be decided. That was an opinion on the ultimate issue and should have been excluded.
I would affirm the judgment in all respects except for the criminal street gang enhancements. Notes:
Penal Code section 186.22, subdivision (b)(1).
Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1183, citing People v. Torres (1995) 33 Cal.App.4th 37, 47.
People v. Killebrew (2002) 103 Cal.App.4th 644.
People v. Killebrew, supra, 103 Cal.App.4th 644, 652.
People v. Killebrew, supra, 103 Cal.App.4th 644, 658.
People v. Killebrew, supra, 103 Cal.App.4th 644, 658.
We conclude that these instructions, taken together, adequately informed the jury that the prosecution had the burden of proving the gang enhancements beyond a reasonable doubt.
C. Failure to Define "Primary Activities."
The statute defining the gang enhancement requires, among other things, that the alleged gang must "hav[e] as one of its primary activities the commission of one or more of the criminal acts" specified in the statute. (Pen. Code, § 186.22, subd. (f).)
"`"[T]he language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. . . ." [Citations.] [¶] The rule to be applied in determining whether the meaning of a statute is adequately conveyed by its express terms is well established. When a word or phrase "`is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request." [Citations.] A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citations.] . . . [T]erms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance. [Citation.] [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 980-981, quoting People v. Estrada (1995) 11 Cal.4th 568, 574-575, quoting People v. Poggi (1988) 45 Cal.3d 306, 327 and People v. Rowland (1992) 4 Cal.4th 238, 270-271.)
Defendant relies on People v. Sengpadychith (2001) 26 Cal.4th 316. There, the Supreme Court held that, in determining whether the commission of specified crimes is one of the gangs "primary activities," the jury can consider the charged crimes. (Id . at pp. 320, 322-324.) The court then observed: "[E]vidence of either past or present criminal acts . . . is admissible to establish the statutorily required primary activities of the alleged criminal street gang. Would such evidence alone be sufficient to prove the groups primary activities? Not necessarily. The phrase `primary activities, as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the groups `chief or `principal occupations. (See Websters Internat. Dict. (2d ed. 1942) p. 1963 [defining `primary].) That definition would necessarily exclude the occasional commission of those crimes by the groups members. . . . [¶] Sufficient proof of the gangs primary activities might consist of evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony . . . ." (Id. at pp. 323-324.)
The very fact that in Sengpadychith the court relied on a dictionary definition of "primary" demonstrates that "primary activities" does not have a technical, legal meaning. A lay juror would readily understand, without being told, that the "chief" or "principal" occupations of a group constitute its "primary activities."
We conclude that the trial court did not have a sua sponte duty to instruct the jury on the definition of "primary activities." Defendant could have requested an amplifying or clarifying instruction; because he did not, the trial court did not err by failing to give one.
V
SENTENCING ISSUES
Defendant contends the trial court erred by imposing, in connection with counts 2 and 3, both a gang enhancement (Pen. Code, § 186.22, subd. (b)) and a gang/vicarious firearm use enhancement (Pen. Code, § 12022.53, subd. (e)). The People concede that this was error. We agree. However, we have also found additional sentencing errors which will require remand.
A. Additional Factual and Procedural Background.
In connection with counts 2 and 3, the jury found both a gang enhancement and a gang/vicarious firearm use enhancement true.
With regard to the gang/vicarious firearm use enhancement, the jury had been instructed: "If you find the defendant guilty of the crime of robbery as charged in [c]ount[s] two and three, you must determine whether a principal in the commission of that offense personally used a firearm . . . ." The verdict form for the gang/vicarious firearm use enhancement recited that: "[T]he defendant . . ., in the commission of the offense charged . . ., was a principal and at least one principal personally used a firearm . . . ." Thus, in connection with counts 2 and 3, the jury was never asked to determine whether defendant personally used a firearm.
The trial court selected count 1 as the base term. On this count, it sentenced defendant to three years (the midterm) for robbery. It added a consecutive 10 years for the personal firearm use enhancement, and a consecutive two years (which it described as the midterm) for the gang enhancement, for a total of 15 years.
On count 2, the trial court sentenced defendant to one year (one-third the midterm) for robbery, plus a consecutive three years four months (one-third the required term) for the gang/vicarious firearm use enhancement, plus a consecutive eight months (one-third the midterm) for the gang enhancement, for a subtotal of five years, and a grand total of 20 years.
On count 3, the trial court sentenced defendant to three years (the midterm) for robbery, 10 years for the gang/vicarious firearm use enhancement, and two years (which it described as the midterm) for the gang enhancement. It then stayed the entire sentence on this count, citing Penal Code section 654.
On count 4, the trial court sentenced defendant to two years (the midterm) for carrying a concealed weapon and two years (which it described as the midterm) for the gang enhancement. It stayed the entire sentence on this count, once again citing Penal Code section 654.
Finally, on count 5, a misdemeanor, it sentenced defendant to 180 days, to be served concurrently.
B. Analysis.
A gang/vicarious firearm use enhancement applies if a principal in the commission of the offense personally used or discharged a firearm and if, in addition, all of the elements of a gang enhancement are present. (Pen. Code, § 12022.53, subd. (e)(1).) Accordingly, a gang enhancement "shall not be imposed . . . in addition to a[ gang/vicarious firearm use] enhancement . . . , unless the [defendant] personally used or personally discharged a firearm in the commission of the offense." (Pen. Code, § 12022.53, subd. (e)(2).) The necessary personal use finding has to be made by the jury, beyond a reasonable doubt; it cannot be made by the trial court. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].) Here, the jury made no such finding. It follows that the trial court erred by imposing both enhancements on count 2.
The trial court made the same error on count 3. The People assert that, with respect to count 3, the error is moot, because the trial court stayed both enhancements (along with the term for the underlying robbery) under Penal Code section 654. But the trial court erred by doing so. Count 2 was the robbery of Betty Walton; count 3 was the robbery of José Lopez. Although both robberies were doubtless committed with the same intent and objective, the multiple victim exception to Penal Code section 654 applied. (People v. Deloza (1998) 18 Cal.4th 585, 592; People v. Champion (1995) 9 Cal.4th 879, 934-935; People v. Miller (1977) 18 Cal.3d 873, 886.) The trial courts error resulted in an unauthorized sentence. (See People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) Therefore, we may reach this error and we may correct it, despite the fact that neither of the parties raised it in the trial court or in this appeal. (People v. Hester (2000) 22 Cal.4th 290, 295.)
We commend the trial court for recognizing that in 1999, when the robberies charged in counts 2 and 3 were committed, a different version of Penal Code section 186.22 was in effect. At that time, the sentencing range for a gang enhancement was one, two, or three years. (Former Pen. Code, § 186.22, Stats. 1997, ch. 500, § 2.) Accordingly, on the gang enhancements to counts 2 and 3, the trial court properly selected the midterm of two years.
The crimes charged in counts 1 and 4, however, were committed in 2001. Effective March 7, 2000, Penal Code section 186.22 had been amended so as to raise the usual sentencing range for a gang enhancement to two, three, or four years. It had also been amended to provide that, when the underlying felony is a violent felony as defined in Penal Code section 667.5, subdivision (c), the sentence for a gang enhancement is 10 years. (Former Pen. Code, § 186.22, subd. (b)(1), Voter Information Guide, Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 4, pp. 119-120; see now Pen. Code, § 186.22, subds. (b)(1)(A), (b)(1)(C).)
On the gang enhancement to count 1, the trial court imposed "two years, the mid term . . . ." This was error. Robbery is a violent felony. (Pen. Code, § 667.5, subd. (c)(9).) Accordingly, the only permissible sentence was 10 years.
On the gang enhancement to count 4, the trial court likewise imposed, but then stayed, "the mid term of 2 years . . . ." Once again, this was error. The midterm was three years.
We conclude that remand for resentencing is required.
VI
DISPOSITION
With respect to the conviction, the judgment is affirmed. With respect to the sentence, the judgment is reversed. The matter is remanded with directions to resentence defendant.
I concur:
RAMIREZ, P.J.