Opinion
G039851.
6-24-2009
THE PEOPLE, Plaintiff and Respondent, v. OMAR MEJIA, Defendant and Appellant. In re OMAR MEJIA on Habeas Corpus. G041105.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
INTRODUCTION
Defendant Omar Mejia appeals from a judgment of his conviction for attempted voluntary manslaughter, conspiracy to commit murder, assault with a firearm, and street terrorism.
Defendant challenges his conviction for conspiracy to commit murder. He contends the trial court erred by failing to instruct the jury, sua sponte, on conspiracy to commit an assault with a firearm as a lesser included offense of conspiracy to commit murder. Alternatively, defendant contends, on appeal and in his petition for a writ of habeas corpus, that his trial counsel provided ineffective assistance by failing to request such an instruction. Defendant also contends substantial evidence did not show he had a specific intent to kill.
We affirm. As discussed in detail post, we conclude, under either the statutory elements test or the accusatory pleading test, the offense of conspiracy to commit an assault with a firearm is not a lesser necessarily included offense of conspiracy to commit murder. We also conclude substantial evidence showed defendant had the specific intent to kill.
Defendant also argues substantial evidence did not support his conviction for street terrorism or the multiple gang enhancement allegations found true by the jury relating to the Darkside criminal street gang. He contends the evidence was insufficient to show the nature of Darksides primary activities within the meaning of Penal Code section 186.22, subdivisions (a), (b)(1), and (f). (All further statutory references are to the Penal Code.) We conclude substantial evidence showed Darksides primary activities at the time of defendants crimes included felony vandalism within the meaning of section 186.22, subdivisions (a), (b)(1), and (f).
We deny defendants petition for a writ of habeas corpus. Even assuming defendants trial counsel was deficient for failing to request an instruction on conspiracy to commit an assault with a firearm, counsels failure was not prejudicial. (People v. Salcido (2008) 44 Cal.4th 93, 170.) Defendant did not have the right, upon request, to have the jury instructed on a lesser related offense without the prosecutors consent. (People v. Birks (1998) 19 Cal.4th 108, 136.) The record does not show the prosecutor would have given such consent upon defendants request.
FACTS
At 8:00 p.m. on December 10, 2004, Richard Collado, Ceasar Lozano, defendant, and others were hanging out in the parking lot of a bank in Anaheim. Collado was an active member of the Pauline Street criminal street gang and went by the moniker "Joker," Lozano was an active participant of the Anaheim Jungle City criminal street gang, and defendant was an active participant of the Darkside criminal street gang. The Pauline Street, Anaheim Jungle City, and Darkside criminal street gangs were allies. All three gangs were rivals of the Vermont Street criminal street gang.
Three members of Vermont Street, dressed in black, suddenly appeared in the parking lot. They stabbed Collado in the face, arm, leg, and finger. One of the Vermont Street gang members held a gun to defendants head and said, "fuck Darkside, fuck Darkside." Collado was able to run away from his attackers and was transported to a hospital by ambulance.
Several days to a week before this incident, some Pauline Street gang members had assaulted Vermont Street gang members. The three Vermont Street gang members who stabbed Collado had been driving around looking for Pauline Street gang members to seek revenge for that earlier assault.
Defendant and Lozano too got away and joined two Pauline Street gang members—Steven Perez and Joel Calderon. After defendant told Perez and Calderon that Collado had been stabbed, he got a shotgun and put three shells in his pocket. Defendant, Lozano, Perez, and Calderon drove around in Lozanos car looking for Vermont Street gang members to seek revenge.
As they were driving around Anaheim, they saw Jesus Armenta with Lozanos mother. Lozano did not like Armenta and did not want his mother to have a relationship with Armenta. Defendant wanted to "back him up" and scare Armenta. Defendant approached Armenta and asked him what he was doing there. Defendant hit Armenta in the head with the shotgun and Armenta fell down.
Security guard David Martinez appeared. Defendant pointed the shotgun at Martinez. In a taped conversation with Calderon later at the police station, defendant stated, "I was going to shoot him dude, but when the, when I pulled it came out dude. That is why I was putting in another one dude but I couldnt. I saw the police and said fuck it, I got busted."
Two police officers on patrol drove by the scene. After exiting the patrol car, one of the officers saw defendant pointing the shotgun at a security guard; the security guard had his hands in the air. The officer approached defendant and ordered him to drop the weapon. Defendant dropped the shotgun and unsuccessfully attempted to run away. Lozano and Perez ran away. The officers arrested defendant and Calderon. Defendant told one of the officers, "that guy [Armenta] is fucking with my homeboys mom. He is ruining his family." The shotgun was in good working order and loaded with four live shells.
After he was questioned by an officer at the police station, defendant was left alone in an interview room with Calderon. Defendant talked to Calderon about assaulting Armenta: "I was not going to hit the dude but I was agitated[,] upset from what I saw Joker [Collado]. I dont even know what the hell is going through my head. I was going to shoot the dude [the security guard] that stood in front of me. I was going to do it dude."
Defendant commented to Calderon, "we got busted for doing a job for Joker." Calderon responded, "we got busted for doing Puppet [Lozanos moniker] a favor." Defendant agreed, "[y]eah for Puppet, but at the same time we were doing it for Joker." Calderon said, "Joker as well." Defendant said they were "backing up Joker."
Defendant also told Calderon: "Yeah, Im pissed [be]cause the fools from Vermont got away [unintelligible], got away from us [unintelligible]. And I know theyre not gonna do nothing about it until Joker comes out. I think they did stab him a couple times. Because I saw when they threw, they threw a lot of times, they were fucking him up." Defendant further stated, "I already had that in my mind dude, since I saw what happen to JOKER, I knew dude, and I said, I am going to shoot someone or I am going to get busted."
A gang expert, Officer Kyle Poffenberger, testified about Pauline Streets, Anaheim Jungle Citys, and Darksides histories, memberships, and primary activities. He also testified about the importance of respect in gang culture and how an assault on rival gang members is a matter of disrespect. He testified that a gang must retaliate against (pay back) the rival gang to earn back the lost respect and such retaliation usually involves an escalation of violence. The gang expert stated that retaliation for a stabbing would most likely come in the form of a shooting. He opined that defendant, Lozano, Calderon, and Perez travelled to the claimed territory of the Vermont Street gang with the intent to retaliate for Collados stabbing by a shooting.
PROCEDURAL BACKGROUND
Defendant was charged in an information with (1) the attempted murder of Martinez, willfully, deliberately, and with premeditation, in violation of sections 664 and 187, subdivision (a); (2) conspiracy to commit murder in violation of sections 182, subdivision (a)(1) and 187; (3) assault with a firearm on Armenta in violation of section 245, subdivision (a)(2); and (4) street terrorism in connection with his unlawful participation in the Darkside criminal street gang in violation of section 186.22, subdivision (a). The information also alleged that, within the meaning of section 186.22, subdivision (b), defendant committed all the offenses but the street terrorism offense for the benefit of, at the direction of, or in association with the Pauline Street, Darkside, and Anaheim Jungle City criminal street gangs, and with the specific intent to promote, further, and assist in criminal conduct by members of those gangs.
The information further alleged that, as to the attempted murder and conspiracy to commit murder counts, pursuant to section 12022.53, subdivision (b) and within the meaning of sections 1192.7 and 667.5, defendant personally used a firearm during the attempted commission and commission of those offenses. The information also alleged, pursuant to section 12022.5, subdivision (a) and within the meaning of sections 1192.7 and 667.5, as to the assault with a firearm count, defendant personally used a firearm in the commission of that offense.
Defendant, Calderon, Lozano, and Perez were charged in the same information as codefendants. Perez and Calderon pleaded guilty to attempted murder, assault with a firearm, and street terrorism. According to the respondents brief, Lozano was tried separately for the crimes charged against him. Because the offenses and enhancements alleged against defendants codefendants are not relevant to the issues presented in this appeal, we do not address them further.
The jury found defendant not guilty of the attempted murder of Martinez as charged, but found him guilty on that count as to the lesser included offense of attempted voluntary manslaughter. The jury also found true the allegation he personally used a firearm during the commission of that offense as well as the three gang enhancement allegations contained in the information as to that offense. The jury found defendant guilty of conspiracy to commit murder as charged and found true the personal use of a firearm and gang enhancement allegations alleged as to that count. The jury found him guilty of assault with a firearm as charged and found the personal use of a firearm and gang enhancement allegations as to that offense true. The jury also found defendant guilty of street terrorism as charged.
The trial court sentenced defendant to a 25-year-to-life indeterminate sentence plus a 14-year, 8-month determinate sentence. For purposes of sentencing, the court struck all of the gang enhancement allegations found true by the jury under section 186.22, subdivision (b). Defendant appealed. After filing the opening brief, defendant filed a petition for writ of habeas corpus in this court.
DISCUSSION
I.
CONSPIRACY TO COMMIT AN ASSAULT WITH A FIREARM IS NOT A LESSER INCLUDED OFFENSE OF CONSPIRACY TO COMMIT MURDER IN THIS CASE.
Defendant contends the trial court erred by failing to instruct the jury, sua sponte, on conspiracy to commit an assault with a firearm as a lesser included offense of conspiracy to commit murder. He alternatively contends his trial counsel was ineffective for failing to request an instruction on conspiracy to commit an assault with a firearm. As we explain in detail post, we disagree with defendant on both points.
"`We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, "`that is, evidence that a reasonable jury could find persuasive" [citation], which, if accepted, "`would absolve [the] defendant from guilt of the greater offense [citation] but not the lesser" [citation]." (People v. Licas (2007) 41 Cal.4th 362, 366.) "`[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (Ibid; see People v. Parson (2008) 44 Cal.4th 332, 349 ["An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test)"].)
We begin our analysis by examining the elements for the crime of conspiracy. "`A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act "by one or more of the parties to such agreement" in furtherance of the conspiracy." (People v. Russo (2001) 25 Cal.4th 1124, 1131; see §§ 182, 184.) As to the requirement the prosecution must prove the commission of an overt act, in People v. Russo, supra, 25 Cal.4th at page 1131, the California Supreme Court explained: "One purpose of the overt act requirement is to provide a locus penitentiae—an opportunity to repent—so that any of the conspirators may reconsider and abandon the agreement before taking steps to further it, and thereby avoid punishment for the conspiracy. [Citations.] Another purpose is `to show that an indictable conspiracy exists because `evil thoughts alone cannot constitute a criminal offense. [Citations.]"
Section 184 provides: "No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement and the trial of cases of conspiracy may be had in any county in which any such act be done."
In People v. Russo, supra, 25 Cal.4th at page 1128, the California Supreme Court held that in finding a defendant guilty of conspiracy, "the jury need not agree on a specific overt act as long as it unanimously finds beyond a reasonable doubt that some conspirator committed an overt act in furtherance of the conspiracy." The Supreme Court explained: "We do not doubt that the requirement of an overt act is an element of the crime of conspiracy in the sense that the prosecution must prove it to a unanimous jurys satisfaction beyond a reasonable doubt. But that element consists of an overt act, not a specific overt act. Moreover, Penal Code section 182, subdivision (b), merely says one of the acts must be proved; it does not say about what the jury must be unanimous." (Id. at p. 1134.)
Section 182, subdivision (b) provides: "Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment or information, nor unless one of the acts alleged is proved; but other overt acts not alleged may be given in evidence."
Here, the Attorney General and defendant agree conspiracy to commit an assault with a firearm is not a lesser included offense of the crime of conspiracy to commit murder under the statutory elements test. Defendant argues, however, that conspiracy to commit an assault with a firearm is a lesser included offense of conspiracy to commit murder under the accusatory pleading test, based on the informations allegations as to the conspiracys overt acts.
In applying the accusatory pleading test to charges of conspiracy, a disagreement has arisen among appellate courts regarding whether allegations of the charged conspiracys overt acts, as set forth in the information, should be considered. This disagreement is illustrated by examining the opinions in People v. Fenenbock (1996) 46 Cal.App.4th 1688 (Fenenbock), in which the appellate court held such overt act allegations should not be considered, and People v. Cook (2001) 91 Cal.App.4th 910 (Cook), in which the appellate court held they should be considered. As we discuss in detail, the trial court here did not err by failing to instruct the jury on conspiracy to commit an assault with a firearm under either approach.
In Fenenbock, supra, 46 Cal.App.4th at page 1708, the appellate court held that "in the context of deciding whether the trial court was obligated to instruct sua sponte on lesser included offenses, we conclude that allegations of overt acts committed in furtherance of the alleged conspiracy do not provide notice of lesser included target offenses." The court reasoned, "[f]or the crime of conspiracy, the criminal act is the agreement. The agreement is not punishable unless some overt act was committed in furtherance of the conspiracy." (Ibid.) The court further explained, "[b]ecause overt acts need not be criminal offenses or even acts committed by the defendant, the description of the overt acts in the accusatory pleading does not provide notice of lesser offenses necessarily committed by the defendant. Moreover, inasmuch as overt acts may be lawful acts, the overt acts do not necessarily reveal the criminal objective of the conspiracy. . . . [¶] In our view, it is the description of the agreement within the accusatory pleading, not the description of the overt acts, which must be examined to determine whether a lesser offense was necessarily the target of the conspiracy." (Id. at p. 1709, fn. omitted.) The appellate court held the trial court did not err by failing to instruct on conspiracy to commit other crimes as lesser included offenses of conspiracy to commit murder which required reference to the allegations of overt acts. (Ibid. )
In Cook, supra, 91 Cal.App.4th at page 920, the appellate court expressly disagreed with Fenenbock, supra, 46 Cal.App.4th 1688, holding that the trial court did not err by relying on the overt act allegations which revealed the conspiracy was to commit murder by means of a firearm, and by instructing the jury, sua sponte, on conspiracy to commit an assault with a firearm as a lesser included offense. The Cook court reasoned: "[A]n accusatory pleading does not fail to give notice merely because an overt act, or any other charged act, is not personally committed by a defendant. Defendants who do not directly commit an offense have long been treated as principals equally liable under the law for the criminal acts committed by their accomplices [citations], and `case law has long held due process notice satisfied as to defendants prosecuted as aiders and abettors [citation], accessories after the fact [citation], or conspirators [citation]. [Citation.] This is so because the accused receives adequate notice of the prosecutions theory from the evidence introduced at the preliminary hearing. [Citation.] [¶] In a case where a defendant is charged with murder and conspiracy to commit murder, the charge of conspiracy serves to give a defendant actual notice that he is subject to accomplice liability for the murder. [Citation.] Additionally, principles of due process require that the overt acts be pleaded with particularity in order to give defendants notice of the nature and cause of the charge so that the defendant may defend against that charge. [Citations.] It cannot be said then that an accusatory pleading charging conspiracy, fails as a matter of law to give sufficient notice of the charged offense and any lesser included offense." (Cook, supra, 91 Cal.App.4th at pp. 920-921.)
In Cook, supra, 91 Cal.App.4th at page 914, the defendants were charged with the crime of conspiracy to commit murder. The information alleged the defendants conspired to commit murder, and alleged seven overt acts in support of that charge, which included that the defendants acquired a gun to seek revenge against the victims, went to a clothing store and bought watch caps, cut eyeholes in the watch caps, met to discuss killing the victims, entered the victims apartment, shot and killed one victim, and shot and wounded a second victim. (Id. at p. 919, fn. 22.)
The appellate court in Cook, supra, 91 Cal.App.4th at pages 921-922, held, "[t]he information provided sufficient notice that defendants agreed to commit an offense that included the lesser included offense of assault with a firearm. . . . [¶] Looking to the accusatory pleading as a whole, the information gave notice that defendants were charged with conspiracy to commit murder by means of a firearm and therefore also gave notice of the lesser included offense of conspiracy to commit assault with a firearm. [¶] Accordingly, the jury was properly instructed on the lesser included offense of conspiracy to commit assault with a firearm."
Here, the information alleged the following with regard to the charge of conspiracy to commit murder: "Count 2: On or about December 10, 2004, in violation of Section 182[, subdivision ]( a)(1) of the Penal Code (Conspiracy to Commit a Crime), a felony, Joel Calderon, Ceasar Julio Lozano, Steven Perez and [defendant] did unlawfully conspire together and with Ceasar Lozano, Steven Perez and [defendant] to commit the crime of murder, in violation of Section 187 of the Penal Code. [¶] It is further alleged that pursuant to and for the purpose of carrying out the objects and purposes of the conspiracy, one and more of the conspirators committed the following overt acts: [¶] Overt Act 1 [¶] On December 10, 2004 in Orange County, Joel Calderon, Ceasar Lozano, Steven Perez and [defendant] met. [¶] Overt Act 2 [¶] [Defendant] obtained a 12 gauge shotgun with 12 gauge ammunition. [¶] Overt Act 3 [¶] Joel Calderon, Ceasar Lozano, Steven Perez and [defendant] drove to the area of 980 S. Citron Street in the city of Anaheim, California. [¶] Overt Act 4 [¶] [Defendant] loaded the shotgun." (Italics added, some capitalization omitted.)
Were we to ignore the allegations of the overt acts of the conspiracy, as supported by Fenenbock, supra, 46 Cal.App.4th 1688, we would be left only with the allegation that defendant and his coconspirators conspired to commit the crime of murder, without reference to a firearm, thereby eliminating conspiracy to commit an assault with a firearm as a lesser necessarily included offense.
But, even if we consider the overt act allegations of the information as the appellate court did in Cook, supra, 91 Cal.App.4th at pages 921-922, we cannot conclude conspiracy to commit an assault with a firearm constitutes a lesser necessarily included offense of conspiracy to commit murder as pleaded here. The information alleges four overt acts, only two of which allege the involvement of a firearm. As explained in People v. Russo, supra, 25 Cal.4th at page 1128, in order to convict defendant of conspiracy to commit murder, the jury was required to find a single overt act in furtherance of the conspiracy and "need not agree on a specific overt act." Hence, the jury could have convicted defendant of conspiracy to commit murder on the basis of an overt act that did not involve a firearm. In this case, those two overt acts not involving a firearm were meeting and driving to the scene. Following People v. Licas, supra, 41 Cal.4th 362, 366, we must conclude conspiracy to commit an assault with a firearm is not a lesser necessarily included offense of conspiracy to commit murder, but merely a lesser related offense, because defendant could have committed the former without committing the latter. Thus, the trial court did not err by failing to instruct the jury on conspiracy to commit an assault with a firearm.
In Cook, supra, 91 Cal.App.4th at pages 919-920, the appellate court concluded, in that case, conspiracy to commit an assault with a firearm was a lesser included offense of conspiracy to commit murder because some of the seven overt acts alleged in the information referred to a firearm. The information in Cook did not specifically allege the commission of the overt acts in the conjunctive; instead (like the information in the case at bar), it alleged the defendants "`committed the following overt act and acts." (Id. at p. 919, fn. 22.) Even if we were to reach the issue and agree with Cook that overt act allegations should be considered in determining lesser included offenses, we part company with Cook in its application of that rule. We do not agree with the proposition that pleading an overt act involving a firearm, among other overt acts, triggers a sua sponte duty on the part of the trial court to instruct on conspiracy to commit an assault with a firearm.
II.
DEFENDANT WAS NOT PREJUDICED BY HIS COUNSELS FAILURE TO REQUEST AN INSTRUCTION ON THE LESSER RELATED OFFENSE OF CONSPIRACY TO COMMIT AN ASSAULT WITH A FIREARM.
Defendant alternatively contends, on appeal and in his petition for a writ of habeas corpus, that even if the trial court did not have a sua sponte obligation to instruct on conspiracy to commit an assault with a firearm, his trial counsel was ineffective for failing to request such an instruction. Defendant contends the prejudice he suffered as a result of his trial counsels omission is evidenced, inter alia, by the jurys question during deliberations as to whether there is "a lesser charge to conspiracy to attempt murder? [¶] (But more than just a crime?)" The trial court, with the prosecutors and defendants trial counsels agreement, responded to the jury, "[t]here is no lesser included offense to conspiracy to commit murder."
The jury also submitted the following question: "Need to have a clear definition of `attempted murder. (We read the instructions concerning `attempted murder.) [¶] Any way to reduce the grey area defining where intent to harm becomes intent to murder (?)." In response, again with the prosecutors and defendants counsels agreement, the trial court directed the jury to the definition of attempted murder contained in the instructions it had been given and further stated, "[t]hat crime requires an intent to kill, an intent to harm is not sufficient to show attempted murder."
"`"In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsels performance was deficient because it `fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms. [Citations.] Unless a defendant establishes the contrary, we shall presume that `counsels performance fell within the wide range of professional competence and that counsels actions and inactions can be explained as a matter of sound trial strategy. [Citation.] If the record `sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected `unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citations.] If a defendant meets the burden of establishing that counsels performance was deficient, he or she also must show that counsels deficiencies resulted in prejudice, that is, a `reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. [Citation.]"" (People v. Salcido, supra, 44 Cal.4th 93, 170.)
Even assuming defendants trial counsel was deficient for failing to request that instruction, the record does not show any such deficiency resulted in prejudice to defendant. In People v. Birks, supra, 19 Cal.4th 108, 136, the California Supreme Court overruled People v. Geiger (1984) 35 Cal.3d 510, which held that a "defendant has a state constitutional right to instructions on lesser offenses that are not necessarily included in the stated charge" and that "instructions on lesser merely `related offenses can be given only upon the defendants request." (People v. Birks, supra, 19 Cal.4th at p. 112.) The Supreme Court in People v. Birks held, inter alia, "the California Constitution should not be construed to grant criminal defendants an affirmative right to insist on jury consideration of nonincluded offenses without the prosecutors consent." (Id. at p. 136, italics added; see People v. Rundle (2008) 43 Cal.4th 76, 147 ["In Birks, however, we overruled the holding of Geiger that a defendants unilateral request for a related-offense instruction must be honored over the prosecutions objection"]; People v. Schmeck (2005) 37 Cal.4th 240, 291-292.)
Nothing in the record suggests the prosecutor would have consented to the trial court instructing the jury on the lesser related offense of conspiracy to commit an assault with a firearm. As discussed in detail post, compelling evidence in the form of the gang expert witnesss testimony and defendants own statements supported the prosecutions theory defendant intended to shoot and kill Vermont Street gang members in retaliation for Collados stabbing. Had the prosecutor wanted such an instruction, on her own, she would have requested it. We therefore reject defendants argument and deny the petition for a writ of habeas corpus.
We asked for and received supplemental letter briefs on the following issue: "Assuming, under the accusatory pleadings test, conspiracy to commit an assault with a firearm is not a lesser included offense of conspiracy to commit murder, but is instead a lesser related offense, does the record show defendant was prejudiced by trial counsels failure to request a jury instruction on conspiracy to commit an assault with a firearm?"
III.
SUBSTANTIAL EVIDENCE SHOWED DEFENDANT HAD THE SPECIFIC INTENT TO COMMIT MURDER AS THE OBJECT OF THE CONSPIRACY.
Defendant also contends his conviction for conspiracy to commit murder must be reversed because substantial evidence did not show he had the specific intent to commit first degree murder. We conclude the evidence of intent was sufficient to support the conviction.
"`"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rationale trier of fact could have found the defendant guilty beyond a reasonable doubt."" (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) The same standard of review applies when a conviction rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
"`If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]" (People v. Thomas (1992) 2 Cal.4th 489, 514.) Reversal is warranted only where it clearly appears that "upon no hypothesis whatever is there sufficient substantial evidence" to support the conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.)
A conviction for conspiracy to commit murder requires a finding of a specific intent to kill. (People v. Jurado (2006) 38 Cal.4th 72, 123.) "Because there rarely is direct evidence of a defendants intent, `[s]uch intent must usually be derived from all the circumstances of the attempt, including the defendants actions." (People v. Vu (2006) 143 Cal.App.4th 1009, 1025.)
Here, the following substantial evidence supported the finding defendant intended to kill as the object of the conspiracy: (1) defendant and Lozano were present when Collado was stabbed by Vermont Street criminal street gang members; (2) a Vermont Street gang member held a gun to defendants head and said, "fuck Darkside, fuck Darkside"; (3) the Vermont Street gang is a rival of Pauline Street, Anaheim Jungle City, and Darkside criminal street gangs; (4) Collado was a member of the Pauline Street gang, Lozano was a member of the Anaheim Jungle City gang, and defendant was a member of the Darkside gang at the time of the stabbing; (5) the Vermont Street gang members actions disrespected defendant and the Pauline Street, Anaheim Jungle City, and Darkside gangs; (6) according to the gang expert witness, the only way for a gang to regain lost respect is to retaliate against the offending gang, typically through an escalation of violence; (7) according to the gang expert, a mere assault in retaliation for a stabbing would be insufficient retaliation; (8) after Collado was stabbed, defendant and Lozano met up with Perez and Calderon, and defendant told them what had happened; (9) defendant obtained a shotgun and put three live shells in his pocket; (10) defendant, Perez, Calderon, and Lozano got into Lozanos car to go "out for revenge"; (11) the shotgun defendant had with him was loaded and in good working order; (12) after he was arrested, defendant told Calderon they had been "busted for doing a job" for Collado and that defendant was "pissed [be]cause the fools from Vermont got away"; (13) in his conversation with Calderon, defendant referred to another (unidentified) person who was with him that night and was carrying a gun and ammunition but "escaped"; and (14) defendant also told Calderon, "I already had that in my mind dude, since I saw what happen to JOKER [Collado], I knew dude, and I said, I am going to shoot someone or I am going to get busted."
In his taped conversation with Calderon, defendant complained that Lozano "is snitching on us bad, dude. He told them everything, dude. He told them I was there dude when they stabbed that fool. And that is why we had the gun he told them that . . . and he told him that we went out for revenge." Defendant later said, "[h]e knows. Im fuck, he knows, he knows that I was there, and he said that we went out for revenge. And Puppet [Lozano] told him everything dude."
More than substantial evidence showed defendant conspired with his codefendants with the specific intent to kill in retaliation for Collados stabbing. We find no error.
IV.
SUBSTANTIAL EVIDENCE SHOWED DARKSIDES PRIMARY ACTIVITIES AS ONE OF THE ENUMERATED OFFENSES UNDER SECTION 186.22, SUBDIVISION (f).
Defendant argues his conviction for street terrorism under section 186.22, subdivision (a) and the multiple gang enhancement allegations relating to Darkside found true by the jury were unsupported by substantial evidence. Specifically, he contends insufficient evidence showed Darkside was a criminal street gang within the meaning of section 186.22, subdivision (f) because insufficient evidence showed Darksides primary activities consisted of one of the offenses identified in section 186.22, subdivision (f).
The crime of street terrorism is codified at section 186.22, subdivision (a), which provides: "Any 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 by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years." The gang enhancement of section 186.22, subdivision (b)(1) provides in relevant part: "[A]ny 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows . . . ."
Both the offense of street terrorism and the gang enhancement of section 186.22, subdivisions (a) and (b)(1), respectively, require the finding of the existence of a "criminal street gang." Section 186.22, subdivision (f) defines "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."
Here, the jury was instructed to determine whether one of Darksides primary activities was the commission of felony vandalism or robbery. Felony vandalism is included in subpart (20) of section 186.22, subdivision (e) and robbery is also listed in that subdivision in subpart (2). Defendant does not argue that the jury instruction was in error or that felony vandalism and robbery do not constitute primary offenses identified within the meaning of section 186.22, subdivision (f). Instead, defendant contends the gang expert witnesss testimony was insufficient to establish that Darksides primary activities included felony vandalism or robbery.
The California Supreme Court explained in People v. Sengpadychith (2001) 26 Cal.4th 316, 324, that "[s]ufficient 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, as occurred in [People v.] Gardeley [(1996)] 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.] The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on `his personal investigations of hundreds of crimes committed by gang members, together with information from colleagues in his own police department and other law enforcement agencies. [Citation.]"
In People v. Duran (2002) 97 Cal.App.4th 1448, 1465, the appellate court concluded sufficient evidence supported the jurys finding the alleged criminal street gangs primary activities were statutorily enumerated criminal offenses. The court stated the gang expert witness testified, "based in part upon his personal experience in the field gathering gang intelligence, contacting gang members, and investigating gang-related crimes." (Ibid.) The court found the experts testimony on the gangs primary activities sufficient to show the gang members were engaged in more than the occasional sale of narcotics, robbery, and assault. (Ibid.) The expert testified as to the gangs primary activities, as follows: "`Theres several. The main one is putting fear into the community. [¶] Now, when I say that, what I mean is often these gang members are committing robberies, assault with deadly weapons, narcotics sales, and theyre doing it as a group. [¶] And in doing so, they start claiming certain territories within the city . . . . [¶] And theyre controlling either the narcotics sales in that area, theyre committing the robberies in this area, all for the purpose of fear and intimidation of the community." (Ibid.) The appellate court concluded the experts testimony was sufficient, noting the expert had testified the gang had committed the specified crimes often, and that evidence of gang members commission of robbery and narcotics offenses corroborated the experts testimony. (Ibid.)
Defendant contends the expert witnesss testimony regarding Darkside members commission of two robberies was not adequate to establish robbery as a primary activity of Darkside. As to the issue whether vandalism constituted a primary activity, defendant argues the expert witness "failed to show personal knowledge that Darksides primary activities consisted of felony vandalism. And absent further evidence showing he personally reviewed police reports of those offenses or even that he spoke directly with the person or persons who investigated or documented those crimes, there was no substantial evidence to show Darkside was a criminal street gang as defined by statute."
During trial, the expert witness was asked, "[a]s of December 10th of 2004, what were the primary activities of the Darkside gang?" He answered, "from what Ive learned the primary activity would be probably graffiti vandalism, because that was what most was seen. I know also robberies, I know they had two robberies in 2004. One in June and one [in] October in our city." He testified that he investigated the October robbery because it occurred in Anaheim where he had been a police officer for the past 12 years, and was assigned to the Darkside gang in his detail. He described both robberies and testified that each perpetrator in those robberies was a member of Darkside and that each crime was committed to benefit Darkside. He stated that he learned from investigators from Orange Police Department (where Darkside had a presence) that Darkside had committed at least 10 felony vandalisms in 2004 in the City of Orange. He testified that he has learned about Darkside by interviewing Darkside gang members and talking with investigators from other cities who have Darkside gang members in their cities as well.
We conclude the expert witnesss testimony was sufficient to show Darksides primary activity within the meaning of section 186.22 was felony vandalism. We therefore do not need to determine whether substantial evidence supported the finding robbery constituted a primary activity as well.
Defendant cites In re Alexander L. (2007) 149 Cal.App.4th 605, 611, in support of his argument that substantial evidence fails to establish Darksides primary activities. In re Alexander L., however, is factually distinguishable. In that case, the gang expert witness never stated what the primary activities of the subject gang were at the time of the charged offense. When asked about the primary activities of the gang, the expert witness stated: "`I know theyve committed quite a few assaults with a deadly weapon, several assaults. I know theyve been involved in murders. [¶] I know theyve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations." (Id. at p. 611.) No further questions were asked of the expert about the gangs primary activities. (Ibid.) Furthermore, unlike the instant case, "[n]o specifics were elicited as to the circumstances of these crimes, or where, when, or how [the expert] had obtained the information." (Id. at pp. 611-612.)
We find no error.
DISPOSITION
The judgment is affirmed. The petition for a writ of habeas corpus is denied.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.