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People v. Martinez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 2, 2012
E052409 (Cal. Ct. App. Feb. 2, 2012)

Opinion

E052409 Super.Ct.No. FSB704499

02-02-2012

THE PEOPLE, Plaintiff and Respondent, v. ROBERT SERNA MARTINEZ, Defendant and Appellant.

Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Kyle Niki Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed as modified.

Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Kyle Niki Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Robert Serna Martinez appeals his jury conviction to challenge the sufficiency of the evidence in support of a gang enhancement. (Pen. Code, § 186.22, subdivision (b).) He also contends the trial court erred by imposing a restitution fine of $5,000 (§ 1202.4, subdivision (b)), but a parole revocation fine of $10,000 (§ 1202.45), since the two must be imposed in equal amounts.

All further statutory references are to the Penal Code unless otherwise indicated.

FACTUAL AND PROCEDURAL HISTORY

Defendant was charged with robbery (count 1—§ 211) with personal use of a firearm in the commission of the offense (§ 12022.53, subdivision (b)); felon in possession of a handgun (count 2—§ 12021, subd. (a)(1)); and felon in possession of ammunition (count 3—§ 12316, subd. (b)(1)). It was further alleged the offenses in counts 1 through 3 were committed to benefit a criminal street gang. (§ 186.22, subd. (b).) The information also alleged defendant had three prior convictions from 1993, 1998 and 2000, all three of which qualified as strikes (§§ 1170.12, subds. (a)-(d), 667, subd. (b)), and two of which qualified as serious felonies (§ 667, subd. (a)(1).

Firearm enhancements (§ 12022.53, subd. (b)) that were incorrectly attached to counts 2 and 3 were dismissed by the court on July 7, 2010.
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At trial, the victim testified she was sitting in the front passenger seat of her boyfriend's car at his worksite on November 7, 2007, at approximately 12:23 p.m. She was smoking a cigarette, playing a game on a Helio cell phone, and talking to someone on a T-mobile cell phone. Her boyfriend, Cesar, and a friend, Filiberto, were working in a nearby field. Defendant walked by the car and then turned around and came back. When he got close, she saw a gun in his hand with a jacket over it and it was pointed at her. She said, "'Please don't kill me.'" He said, "'I'm not going to f'ing kill you,'" but started taking things. He took her boyfriend's car stereo, wallet, and cell phone, as well as her purse and Helio cell phone, and put them into a black shopping bag.

When defendant left, the victim yelled to Cesar and Filiberto, who were not far away. They came running toward her. She said she had been robbed and pointed to the robber. Cesar started chasing the robber. During the pursuit, Cesar called 911 on his cell phone and was able to pass information to police. Although he lost sight of the robber, he soon heard sirens. Cesar was able to identify defendant as the person he chased.

Police chased and then apprehended defendant. Defendant was carrying Cesar's wallet, cash, nine-millimeter bullets, and a cell phone. During the chase, one of the officers saw defendant throw a handgun over a fence into a vacant lot. The officer later returned to the lot and retrieved the gun. The clip was full of bullets and there was a round in the chamber. Police also searched along the path where defendant had been chased and found a box of nine-millimeter ammunition, the victim's cell phone, and Cesar's driver's license.

During trial, police presented documentary and other evidence to show defendant's active membership in a gang. For example, defendant had gang-related tattoos on his neck and stomach. To prove defendant was an active gang member, and that the robbery was committed for the benefit of a criminal street gang, the prosecution relied on opinion testimony of a gang expert.

The jury found defendant guilty on all counts. It also found the gun and gang enhancements to be true. The trial court found defendant was the person listed in the prosecution's prior conviction exhibits. The jury then found true the prior convictions from 1993 and 1998. The prosecution did not proceed on the alleged prior conviction from 2000.

On count 1, robbery, the trial court sentenced defendant to 55 years to life in state prison. To reach the total of 55 years, the court imposed a 25-years-to-life sentence under subdivision (e)(2)(A)(ii) of section 667 and subdivision (c)(2)(ii) of section 1170.12. The court then added a 10-year consecutive term for the gun enhancement (§ 12022.53, subd. (b)); a 10-year consecutive term for the gang enhancement (§ 186.22, subd. (b)(1)(C)); and two five-year terms as a result of the two prior serious felonies (§ 667, subd. (a)). On counts 2 and 3, the court imposed a concurrent term of 25 years to life on each count plus a concurrent term of four years on each count for the gang enhancement.

DISCUSSION

A. SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE GANG ENHANCEMENT

Defendant concedes there was enough evidence to show he was a member of a gang. However, he contends the gang enhancement must be reversed, because the evidence merely shows he committed an opportunistic robbery for personal gain. According to defendant, there is a lack of evidence to show he committed the robbery for the benefit of or in association with a criminal street gang. Nor does defendant believe the evidence shows he committed the robbery with the specific intent of promoting or assisting his gang.

In support of his position, defendant argues the evidence does not show any conduct during the course of the crime, such as the use of gang signs or the shouting of known gang slogans, which would lead one to believe the gang enhancement was applicable under the facts of this case. Defendant also believes the gang expert's testimony was not enough to show this particular crime was gang related. To be gang related, defendant believes the evidence would need to have shown, for example, that he was assaulting or robbing a rival gang member, that other gang members assisted with the crime, or that he drew his gun and displayed gang signs while he was being chased.

"When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment 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." [Citation.]' [Citations.] 'We draw all reasonable inferences in support of the judgment. [Citation.]' [Citations.] Reversal is not warranted unless it appears '"that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." [Citation.]' [Citation.]" (People v. Duran (2002) 97 Cal.App.4th 1448, 1456-1457.)

Subdivision (b)(1) of section 186.22 provides for additional punishment 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." The enhancement does not apply to "mere nominal or passive involvement with a gang." (People v. Albillar (2010) 51 Cal.4th 47, 67-68.)

In our view, the prosecution presented enough evidence from which a jury could reasonably conclude the robbery in this case was gang related, and not merely an opportunistic crime committed for personal gain. As defendant concedes, there is enough evidence to show he is an active gang member. In our view, the prosecution's well-qualified gang expert did provide enough evidence to show the offenses committed were gang related. First, the expert testified based on law enforcement and other records that defendant was involved in a "more hard-core" subset of a larger gang, and robbery was one of the gang's primary activities.

Second, two days prior to the robbery, defendant was involved in a gang-related incident with a rival gang in that gang's nearby territory. In the opinion of the expert, defendant then committed the robbery in this case in broad daylight, with a gun, close to the border of the other gang's territory, in order to demonstrate he was not going to "lay low" to avoid detection or retaliation from the rival gang. From the expert's testimony, it would be reasonable for the jury to infer defendant's bold actions were intended to boost not only his own reputation but also the notoriety of his gang. In addition, the robbery was committed on November 7, 2007. The number 7 has special significance for defendant's gang. In sum, the time, place, and manner of the robbery were indicative of defendant's intent to promote the reputation of the gang in order to gain respect from fellow gang members, as well as from a rival gang, and to instill fear of his gang in the surrounding community.

Most tellingly, defendant boasted about the details of the robbery and his attempt to evade police during a taped telephone conversation with friends and fellow gang members while he was in jail. The tone and content of the conversation show defendant wanted to spread the word about his daring escapades to improve his own reputation as well as that of his gang. Thus, on the record before us, we conclude substantial evidence supports the jury's conclusion the offenses in this case were committed for the benefit of a criminal street gang, with the specific intent to promote criminal conduct by gang members.

B. PAROLE REVOCATION AND RESTITUTION FINES

The parties agree the amount of the parole revocation fine must be modified. Under section 1202.45, trial courts must impose a parole restitution fine "in the same amount as" the restitution fine imposed pursuant to subdivision (b) of section 1202.4. Here, the trial court violated this rule by imposing a restitution fine of $5,000 and a parole revocation fine of $10,000. We can correct the error without remanding the case for further proceedings. (People v. Vasquez (2009) 178 Cal.App.4th 347, 355-356.)

DISPOSITION

The parole revocation fine imposed pursuant to section 1202.45 in the amount of $10,000 is modified to $5,000 in order to comply with the requirement that it be in the same amount as the $5,000 restitution fine imposed under section 1202.4. The clerk of the Superior Court is directed to correct the abstract of judgment and forward a corrected copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.
We concur: HOLLENHORST、

Acting P. J.
McKINSTER

J.


Summaries of

People v. Martinez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 2, 2012
E052409 (Cal. Ct. App. Feb. 2, 2012)
Case details for

People v. Martinez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT SERNA MARTINEZ, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Feb 2, 2012

Citations

E052409 (Cal. Ct. App. Feb. 2, 2012)