Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. KA071037. Robert M. Martinez, Judge.
Maria Morrison, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason Tran, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Appellant Eric Marroquin appeals from a judgment entered after a jury found him guilty of robbery. (Pen. Code, § 211.) The jury found true the allegation that the crime was committed for the benefit of a criminal street gang, pursuant to section 186.22, subdivision (b)(1). Appellant was sentenced to the upper term of five years for the robbery conviction based on the fact of a prior conviction, 10 years for the section 12022.53, subdivision (b) allegation, and three years for the section 186.22, subdivision (b)(1) allegation, for a total of 18 years. We affirm.
All further statutory references are to the Penal Code.
Appellant was also convicted of assault with a firearm. (§ 245, subd. (a)(2).) The jury found true the allegations that the crime was committed for the benefit of a criminal street gang, pursuant to section 186.22, subdivision (b)(1) and that appellant personally used a handgun, within the meaning of section 12022.53, subdivisions (b) and (e)(1). Appellant’s motion for a new trial as to that count was granted, but that count was subsequently dismissed pursuant to section 1382.
CONTENTIONS
Appellant contends that: (1) insufficient evidence of the firearm use enhancement existed; or, that the trial court erred by failing to instruct the jury on a lesser included “armed” enhancement; (2) the trial court erred by permitting the People to elicit evidence of the audio portion of a videotape depicting appellant as a gang leader; and (3) the imposition of an upper term sentence of five years violated appellant’s Sixth and Fourteenth Amendment rights to a jury trial and due process.
FACTS AND PROCEDURAL HISTORY
Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.
On November 26, 2004, Sergio Rabadan was shot and killed during a confrontation between rival gangs. Rabadan belonged to “Wicked in San Dimas” (W.I.D.), a tagging crew. Appellant belonged to the “Cyclones” gang. That evening, Rabadan and a friend got out of a van, flashing gang signs in Cyclone territory. Someone asked Rabadan where he was from, and Rabadan said “W.I.D.” Cyclones member Ramon Sierra testified that before the shooting, he was hanging out with other “Cyclones” gang members in a parking lot. His friends were passing a gun around, and appellant, known as “Shadow,” put the gun in his pocket. In an interview, Sierra told police that appellant was the shooter, but he recanted his statement at trial.
George Garcia saw appellant shoot Rabadan and then put the gun in his clothing. Appellant and four others approached Mr. Garcia after the shooting and demanded his wallet. The gun was visible to Mr. Garcia the entire time. Appellant kept his hand on the gun where it was tucked in his pants. Fearful, Mr. Garcia gave the men his wallet. The men told Mr. Garcia not to say anything, threatened his family, and removed his driver’s license and social security card from his wallet. They kept Mr. Garcia’s social security card and returned the other items. Mr. Garcia identified appellant as the shooter from a six-pack photo lineup and at trial. Appellant was arrested on December 1, 2004. A video camera containing a videotape was recovered from the passenger seat of the car in which appellant was riding.
West Covina Police Officer Ken Plunkett testified as a gang expert that the Cyclones were rivals to the W.I.D. gang and that appellant was a documented Cyclones gang member. Appellant wore Cyclones tattoos on his face and body; continuously engaged in criminal conduct; admitted to Officer Plunkett that he was a member of the Cyclones gang; and had two brothers who were members of the Cyclones. At that time, the Cyclones gang was heavily recruiting younger members. Officer Plunkett testified that the videotape showed appellant exerting his leadership role by questioning a younger gang member about his loyalty to the Cyclones, and ordering other gang members to beat him up. Officer Plunkett opined that Rabadan’s murder benefited the Cyclones because it enhanced their reputation; fed the community’s fear of the gang; showed the Cyclones’ strength to W.I.D.; and showed younger Cyclones members how to “take care of business.”
The trial court sentenced appellant to the upper term of five years for the robbery conviction, 10 years for the section 12022.53, subdivision (b) allegation, and three years for the section 186.22, subdivision (b)(1) allegation, for a total of 18 years. The trial court found that appellant “ha[d] at least on two prior occasions been involved with violations of law that involved a dangerous or deadly weapon, that the present offense and [sic] involves personal use of a firearm and that the defendant poses a substantial danger to others unless incarcerated for a significant period of time and that crimes are numerous and increasing in seriousness.”
DISCUSSION
I. Sufficient evidence supported the firearm use enhancement
A. Appellant used a firearm in the commission of the robbery
Appellant first contends that there was insufficient evidence to support the firearm use enhancement in the commission of the robbery. (§ 12022.53, subd. (b).) We disagree.
“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Ceja, supra, 4 Cal.4th at pp. 1138-1139.)
The distinction between being armed with a firearm in the commission of a felony and using a firearm in the commission of a felony is that by being armed, the defendant need not utilize a firearm or even carry one on his body. (People v. Bland (1995) 10 Cal.4th 991, 997-998.) The use of a firearm connotes “conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies.” (Id. at p. 997.)
Appellant contends that the evidence showed only that he was armed with a gun during the commission of the robbery of Mr. Garcia—not that he used the gun. He claims that he did not fire, point, or brandish the gun. He further contends that he did not strike anyone with the gun, make threats referring to the gun, or display the gun in a menacing manner.
Although appellant concedes that Mr. Garcia saw his hand on his gun, he claims he did not intentionally display the gun. Citing People v. Granado (1996) 49 Cal.App.4th 317, 325 (Granado), appellant argues that because he kept the gun in his waistband, he did not use it for purposes of section 12022.5(a). He points to the statement in Granado that “section 12022.5(a) was intended in significant part to constrain a would-be robber in defendant’s position to keep the gun in his waistband. So long as he did so, he would be subject only to the enhancement for being armed.” (Granado, supra, at p. 327, italics added.) But the appellate court went on to state that “once he intentionally deployed the gun in furtherance of the offense, he became subject to a use enhancement.” (Ibid.) Indeed, the Granado court found that the evidence supported the use enhancement where the defendant demanded money from the victim, chased after him with a gun drawn, but did not point it at him, then put the gun in his waistband as the victim started to give him the money. (Granado, supra, at pp. 320-321.)
Appellant attempts to distinguish the facts here from those in Granado and other cases he cites, arguing that he made no reference to the gun and never threatened to use it in front of the victim. But, appellant’s argument is not persuasive. As stated in Granado, “when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption from section 12022.5(a).” (Granado, supra, 49 Cal.App.4th at p. 325.)
Here, it is clear that appellant intentionally kept his hand on his gun at all times in order to intimidate Mr. Garcia into handing over his possessions and not reporting appellant to the police. Mr. Garcia testified that after he saw Rabadan exit the car and make a gang sign, appellant yelled something at Rabadan and began shooting. Rabadan made it back to the car. Appellant apparently realized that Mr. Garcia had witnessed the shooting because he and four others immediately walked up to Mr. Garcia and surrounded him, demanding his wallet. Appellant had his hand on his gun in his waistband as other gang members took Mr. Garcia’s wallet and told him that if he said anything he would be in danger. The reasonable inference of this evidence is that appellant’s actions were not incidental or accidental, and as such, the evidence amply supports the jury’s finding that appellant used a firearm in the commission of the robbery of Mr. Garcia.
B. The trial court did not err by failing to instruct on the lesser included “armed” enhancement
Alternatively, appellant contends that the trial court was required to instruct sua sponte on the “‘lesser included enhancement’” of being armed with a firearm under section 12022(a). Appellant urges that the holding in People v. Majors (1998) 18 Cal.4th 385, 410-411 (Majors), that a trial court has no duty to instruct on lesser included enhancements in the absence of a request by the defendant, is no longer viable in light of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and People v. Seel (2004) 34 Cal.4th 535 (Seel). We disagree.
Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) Blakely held that a statutory scheme allowing a trial court to use an aggravating factor, other than the fact of a prior conviction, not found true by the jury to increase the defendant’s sentence above the statutory maximum was invalid. (Blakely, supra, 532 U.S. at p. 303.) Neither those cases nor Seel impacts our Supreme Court’s holding in Majors regarding the sua sponte duty of the trial court to instruct on lesser included enhancements. Seel held that double jeopardy protections preclude retrial of premeditation allegations after a finding of evidentiary insufficiency; it did not address the Sixth Amendment right to a jury trial or the necessity of a jury’s factual findings to support an instruction on lesser included enhancements. (Seel, supra, 34 Cal.4th at p. 539.) Majors does not remove from the jury the ability to act as the factfinder to increase the penalty for a crime beyond the prescribed statutory maximum. Nor does Majors deprive the defendant of a legal right to a lesser sentence. Therefore, Majors does not run afoul of Apprendi, Blakely, or Seel.
But even if the court’s failure to instruct on the lesser included enhancement constituted error, it is not reasonably probable that but for the failure to instruct on the armed enhancement, appellant would have received a more favorable outcome. (People v. Johnson (1995) 38 Cal.App.4th 1315, 1321.) The evidence supports the jury’s finding that appellant displayed the gun to facilitate the robbery. After shooting Rabadan, appellant approached Mr. Garcia, with his hand on his gun. There is no reasonable probability that the jury would have concluded that the display was not intended to facilitate the robbery of Mr. Garcia.
II. The trial court did not abuse its discretion in allowing the jury to hear the audio portion of the videotape
Appellant contends that the trial court erred in permitting the People to present evidence of an audio portion of a videotape made on the night of the incident depicting appellant as a gang leader. We conclude that the trial court did not abuse its discretion.
The trial court has broad discretion in determining whether evidence is more prejudicial than probative. (Evid. Code, § 352.) Evidence of gang membership is admissible when probative on the issue of defendant’s conduct, motive, or identity, so long as the probative value is not outweighed by its prejudicial effect. (People v. Plasencia (1985) 168 Cal.App.3d 546, 552; People v. Williams (1997) 16 Cal.4th 153, 193.)
The challenged videotape showed appellant wearing a white sweatshirt with a dark logo. At one point, the videotape focused on gang members beating a younger gang member, while a voice ordered the beating. Appellant was identified by Officer Plunkett as the speaker. Appellant contends that the audiotape was uniquely inflammatory because it portrayed him as a “violent and contemptible gang leader” and was laden with gang lingo, slang, and screaming. He contends that his status as a ringleader was not probative of any issue at trial and that the sound recording was character evidence tending to show appellant’s criminal propensity.
Officer Plunkett opined that the audio evidenced that appellant was a leader of the Cyclones. Appellant’s status as a leader showed his motivation for taking violent action to maintain respect for the Cyclones when a member of W.I.D. entered the Cyclones’ territory. The tape also provided evidence as to why Sierra and Mr. Garcia were afraid to come to court and testify against appellant, allowing the jurors to evaluate the witnesses’ fear. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.)
We are satisfied the probative value of the evidence was not outweighed by any prejudicial effect. The tape was only three minutes long, and it was not cumulative of other evidence depicting appellant as a leader. Also, the jury was instructed that the evidence was admissible only for the limited purpose of determining whether appellant had a motive for the crime. We conclude that the trial court did not abuse its discretion in admitting the videotape.
III. Appellant’s upper term sentence was constitutional
Appellant disagrees with our Supreme Court’s conclusion in People v. Black (2007) 41 Cal.4th 799 (Black)that the upper term is the statutory maximum whenever there is a single constitutionally permissible aggravating factor. He also argues that the prior conviction exception should not extend to juvenile adjudications, such as those relied on by the trial court. We disagree.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) The Supreme Court subsequently held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely).) The high court recently made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868].) The court therefore concluded that the California determinate sentencing law was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Cunningham, supra, at p. ___ [127 S.Ct. at p. 871].)
However, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, 41 Cal.4th at p. 812.) We are bound by the doctrine of stare decisis to follow our Supreme Court’s decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
As appellant acknowledges, the right to a jury trial does not apply to the fact of a prior conviction. (Black, supra, 41 Cal.4th at p. 818; People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) Moreover, the “‘prior conviction’ exception” must not be read too narrowly; it includes “not only the fact that a prior conviction occurred, but also other related issues that may be established by examining the records of the prior convictions.” (Black,supra, at p. 819.)
Here, the trial court found that appellant had been involved with violations of the law on at least two prior occasions. The trial court determined that these prior crimes involved a deadly weapon and were numerous and increasing in seriousness. The trial court properly relied on appellant’s recidivism in imposing the upper term. Nevertheless, appellant urges that the trial court improperly relied upon appellant’s criminal history because it consisted of three juvenile adjudications. Citing People v. Nguyen (2007) 152 Cal.App.4th 1205, 1232 he argues that a juvenile adjudication cannot be used to increase the maximum sentence for a criminal offense, because the rights afforded juveniles are sufficient to ensure the reliability to support a disposition in juvenile court, but are not sufficient to ensure the reliability required in criminal cases where the outcome is imprisonment.
We disagree with appellant. In People v. Tu (2007) 154 Cal.App.4th 735 (Tu), the court found that the juvenile adjudicative process is sufficiently reliable to pass constitutional muster. (Id. at p. 749.) That is, to adjudicate a minor a ward of the court, proof beyond a reasonable doubt supported by evidence, legally admissible in the trial of criminal cases, must be adduced. (Ibid.) Juveniles, like adults, are afforded protection against double jeopardy. (Id.at p. 749.) They also have the right: to notice; to be present at hearings; to an explanation of allegations; to subpoena power; to the privilege against self-incrimination; to rights of confrontation and cross-examination; and to appellate review and the right to free transcripts where appellant cannot afford counsel. (Ibid.) Moreover, a prior juvenile adjudication is relevant to the issue of recidivism, and to be used as a sentence enhancer, the adjudications must be numerous or of increasing seriousness, thereby providing increased probative value to the issue of recidivism. (Ibid.)
We find the reasoning of Tu persuasive and conclude that the trial court did not violate appellant’s constitutional rights when it relied on prior juvenile adjudications in imposing the upper term. Having so concluded, we need not address the People’s further argument that the aggravating circumstances that appellant posed a substantial danger to others was inherent in the jury’s findings that appellant was guilty of robbery and assault with a firearm. Moreover, we need not address appellant’s point that upon remand, appellant should be resentenced under the sentencing law in effect in California at the time the offense occurred.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.