Opinion
G058113
02-17-2021
THE PEOPLE, Plaintiff and Respondent, v. JORGE LUIS MOJICA, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CF1788) OPINION Appeal from a judgment of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Jorge Luis Mojica of attempted murder and found true the gang enhancement which alleged he committed his crimes to benefit the Santa Nita criminal street gang. The trial court sentenced Mojica to 32 years to life in prison and imposed a $300 restitution fine.
Mojica challenges the sufficiency of the evidence supporting the gang enhancement and asserts the improper admission of that gang evidence had a "prejudicial spillover" effect. He further contends the trial court violated his constitutional rights by imposing the $300 restitution fine. We find these contentions are without merit. We therefore affirm the judgment.
FACTS
Santa Nita and Middleside are rival turf-based gangs in Santa Ana. One evening in June 2018, Mojica and a friend, whom Mojica knew to be a member of Santa Nita, drove to an alley in Middleside's claimed turf, purportedly to buy drugs. Mojica brought a gun with him "[f]or protection."
L., who is affiliated with Middleside, was riding a bike in the alley, and R.T. was standing nearby. Mojica and his friend stopped their car in the alley. Mojica got out of the car and asked L. and R.T. where they were from. L. made an "M" sign with his fingers, signifying his membership in Middleside.
R.T. testified Mojica pulled out a gun; R.T. then heard four gunshots. R.T. was hit in his left leg. A police officer testified R.T. told him later that Mojica said "Santa Nita" at some point during the shooting. Police located surveillance video footage of the shooting, reviewed it and, as a result, arrested Mojica later that evening.
An information charged Mojica with two counts of willful, deliberate, and premeditated attempted murder. (Pen. Code, §§ 664, subd. (a), 187, subd. (a).) It further alleged that Mojica committed the offenses for the benefit of a criminal street gang with the specific intent to promote, further, and assist criminal conduct by members of that gang (§ 186.22, subd. (b)(1)); that he personally used a firearm (§ 12022.5, subd. (a)); as to count 1, that he personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)); and as to count 2, that he personally discharged a firearm (§ 12022.53, subd. (c)).
All further undesignated statutory references are to this code.
A jury found Mojica guilty of all charges and found all the enhancements true. The trial court sentenced him to an aggregated term of 32 years to life in prison. On count 1, the court imposed seven years to life in prison, plus 25 years to life for the section 12022.53, subdivision (d) enhancement. The court also imposed and stayed a sentence on the section 12022.5, subdivision (a) enhancement, imposed and stayed a sentence on count 2 pursuant to section 654, and struck the gang enhancement for purposes of sentencing only. The court also struck certain fines and fees, but imposed a $300 restitution fine under section 1202.4. Mojica appealed.
DISCUSSION
1. The Gang Enhancement
Mojica first contends we must reverse the gang enhancement because the prosecution failed to present substantial evidence of the Santa Nita gang's primary activities. This claim is without merit. The prosecution established Santa Nita's primary activities through expert testimony and evidence of the gang's past and present crimes.
The gang enhancement statute provides for increased 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." (§ 186.22, subd. (b)(1).) The "criminal street gang" component of the gang enhancement requires proof of three elements: (1) an ongoing association involving three or more participants, having a common name or common identifying sign or symbol; (2) one of the group's "primary activities" is the commission of one or more offenses listed in section 186.22, subdivision (e); and (3) the group's members either separately or as a group have engaged in a "pattern of criminal gang activity." (§ 186.22, subd. (f); see People v. Vy (2004) 122 Cal.App.4th 1209, 1222.) Mojica disputes the sufficiency of the evidence supporting the second element: that Santa Nita has as one of its "primary activities" the commission of one or more of the statutorily enumerated crimes.
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
A gang's "primary activities" may be established in one of two ways: (1) through an expert witness who has knowledge of the gang's activities; or (2) by direct evidence of past or present criminal acts. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 (Sengpadychith).) Using the first method, "[t]he testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang's primary activities." (People v. Duran (2002) 97 Cal.App.4th 1448, 1465.) Using the second method, proof that a "group's members consistently and repeatedly have committed criminal activity listed in the gang statute" also may be sufficient to establish the gang's primary activities (Sengpadychith, at p. 324); the crimes relied on may include the charged offense (id. at p. 323) and need not be gang related (People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 683).
In this case, the prosecution established Santa Nita's primary activities using both methods. A qualified gang expert opined that in 2018, Santa Nita's primary activities included robbery, selling heroin and methamphetamine, and being felons in possession of firearms, all of which are statutorily enumerated qualifying primary activities. (See § 186.22, subds. (e)(2) [robbery], (e)(4) [sale of narcotics], & (e)(31) [prohibited possession of a firearm].) The expert based his opinion on his 13 years of experience with the Santa Ana Police Department where he is assigned to the gang detail; his daily review of gang cases, approval of gang charges, and authorship of search warrants in gang cases; his participation in numerous investigations of crimes committed by members of Santa Nita, including crimes of robbery, selling heroin and methamphetamine, and being felons in possession of firearms; his many interviews of gang members; his conversations with community members, other gang detectives, and patrol officers; and his membership and participation in the Orange County Gang Investigators Association.
In arguing this expert testimony was insufficient, Mojica relies on People v. Perez (2004) 118 Cal.App.4th 151 (Perez) and In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander). These cases are distinguishable. In Perez, there was "[n]o expert testimony such as that provided in People v. Gardeley [(1996) 14 Cal.4th 605]" (Perez, at p. 160), and in Alexander, a panel of this court explained it was not enough for the expert to state, without any background how he "obtained the information," that he "kn[e]w" the gang was "'involved in murders'" and "'involved with auto thefts'" and other crimes (Alexander, at p. 611). Indeed, the expert in Alexander did not testify those offenses constituted the gang's primary activities, but instead admitted on cross-examination "that the vast majority of cases connected to [the gang] that he had run across were graffiti related." (Id. at p. 612.) In contrast, the gang expert here had extensive experience with the Santa Nita gang that amply supported his testimony about their primary activities.
The prosecution also established the "primary activities" element through evidence of the Santa Nita gang's past and present criminal activities. The gang expert explained the central importance of generating respect in gang culture through the commission of violent acts. The prosecution then presented evidence of specific violent crimes committed by Santa Nita gang members for the benefit of Santa Nita, all of which involved statutorily enumerated qualifying primary activities: in 2018, Santa Nita member A. Vizcarra was convicted of attempted homicide; in 2017, Santa Nita member I. Mendoza pled guilty to robbery, attempted robbery, three counts of assault with a firearm, and assault with a deadly weapon; and in 2016, as part of a global plea bargain resolving three cases, Santa Nita member R. Rocha pled guilty to crimes including grossly negligent discharge of a firearm, felony street gang vandalism, and burglary. In finding the "primary activities" element was satisfied, the jury also could have relied on the attempted murders charged in this case: Mojica and his friend, whom Mojica testified is a member of Santa Nita, fired multiple shots at two retreating victims in rival territory while calling out their gang's name.
Viewing the evidence in favor of the judgment below as we are required to do, we conclude sufficient evidence established the Santa Nita gang's primary activities included one or more crimes enumerated in section 186.22, subdivision (e). Mojica's gang enhancement challenge therefore fails.
2. Prejudicial Spillover of the Gang Evidence
Relying on his first argument, Mojica next asserts that the improper admission of gang evidence had a "prejudicial spillover" effect. According to Mojica, the prosecution's "gang evidence had no probative value on any material issue in the case, because of the evidentiary deficiency noted above"—namely, the lack of evidence supporting the gang enhancement.
Because we conclude substantial evidence supports the gang enhancement, this derivative argument fails. Further, the gang evidence was necessary to prove the gang enhancement, was relevant to Mojica's intent and motive for the shootings, and rebutted his self-defense theory. Its admission was probative and not unduly prejudicial. The trial court did not err in admitting it.
3. The Restitution Fine
Mojica next argues the trial court violated his state and federal constitutional rights by imposing a $300 restitution fine. According to Mojica, the court made an implied finding that he lacks the ability to pay when, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the court struck the $80 court security fee under section 1465.8 and the $60 conviction assessment fees under Government Code section 70373, subdivision (a)(1), and when it found Mojica "does not have the ability to pay" for a probation report. According to Mojica, by imposing a restitution fine after impliedly determining Mojica lacked the ability to pay, the court violated his right to due process and violated his Eighth Amendment protection against excessive fines. We are not persuaded.
To start, Mojica forfeited his Dueñas challenge to the restitution fine by failing to raise it in the trial court. (People v. Lowery (2020) 43 Cal.App.5th 1046, 1054 [collecting Dueñas forfeiture cases].) This result is consistent with the longstanding rule that a defendant's "failure to challenge the fees in the trial court precludes him from doing so on appeal." (People v. Aguilar (2015) 60 Cal.4th 862, 864.) Mojica suggests the court was obligated to ensure his constitutional rights were safeguarded, even absent a Dueñas objection. But as the Supreme Court has observed, "'No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.'" (United States v. Olano (1993) 507 U.S. 725, 731.)
Mojica alternatively argues his defense counsel provided ineffective assistance by failing to make a Dueñas objection. This argument is also unavailing. "[U]nless counsel was asked for an explanation and failed to provide one" for his or her allegedly deficient conduct, "or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal." (People v. Kraft (2000) 23 Cal.4th 978, 1069.) Here, defense counsel reasonably could have concluded that objecting to the restitution fine would be futile, considering the trial court expressly considered Dueñas when striking other fees and assessments. Indeed, the transcript from the sentencing hearing confirms the court undoubtedly had Dueñas in mind when imposing fines and fees and imposed the restitution fine nonetheless. Counsel was not required to make futile or frivolous objections. (People v. Memro (1995) 11 Cal.4th 786, 819.)
In any event, if Mojica had not forfeited the issue, Dueñas is distinguishable. In Dueñas, the defendant was a probationer who suffered from cerebral palsy, was unemployed and unable to work, homeless, and the mother of young children. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Her earlier failure to pay several juvenile traffic citations resulted in the suspension of her driver's license, which then led to a series of misdemeanor convictions over the years for driving with a suspended license, and even more court fines and fees. (Id. at p. 1161.) While she often served time in jail in lieu of paying her fines, Dueñas was still ordered to pay the related mandatory court fees. (Ibid.) As a result, she found herself deep within a cycle of repeated penal consequences, all of which stemmed from her initial inability to pay fines assessed when she was a juvenile. The appellate court found that imposing fees and fines on Dueñas was unconstitutional and violated due process, holding: "Because the only reason Dueñas cannot pay the fine and fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional." (Id. at p. 1160.)
The consequences that concerned the Dueñas court included not only the possibility of additional incarceration in lieu of payment, but also various civil impairments: "'[C]riminal justice debt creates a significant barrier for individuals seeking to rebuild their lives after a criminal conviction. Criminal justice debt and associated collection practices can damage credit, interfere with a defendant's commitments, such as child support obligations, restrict employment opportunities and otherwise impede reentry and rehabilitation. "What at first glance appears to be easy money for the state can carry significant hidden costs—both human and financial—for individuals, for the government, and for the community at large. . . . [¶] . . . Debt-related mandatory court appearances and probation and parole conditions leave debtors vulnerable for violations that result in a new form of debtor's prison. . . . Aggressive collection tactics can disrupt employment, make it difficult to meet other obligations such as child support, and lead to financial insecurity—all of which can lead to recidivism."'" (Dueñas, supra, 30 Cal.App.5th at p. 1168.)
These are compelling concerns. But they are inapplicable to this case. Mojica makes no claim to be at risk of suffering any of the civil or criminal consequences that concerned the Dueñas court. Unlike the probationer in Dueñas, Mojica is serving a 32-year-to-life prison sentence. There is nothing in the record suggesting his credit rating or any other aspect of his life will be materially affected by his potential inability to pay the restitution fine; he does not claim he will suffer significant consequences from nonpayment; and nothing in the record suggests he will be unable to pay off the fine by working in prison, where he will be paid at least $12 per month. (See Cal. Code. Regs., tit. 15, § 3041.2, subd. (a)(1).) Mojica's reliance on Dueñas is therefore unavailing.
Mojica next contends the restitution fine violates the Eighth Amendment's prohibition on excessive fines. Again, we are not persuaded. A fine is excessive under the Eighth Amendment "if it is grossly disproportional to the gravity of a defendant's offense." (United States v. Bajakajian (1998) 524 U.S. 321, 334.) In considering whether a fine is disproportionate, the defendant's ability to pay is only one of several factors to be considered. Courts must also consider the defendant's culpability, the relationship between the harm and the penalty, and the penalties imposed in similar statutes. (Ibid. ["[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality"]; see People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) Here, the $300 fine imposed on Mojica was not grossly disproportionate to his crimes. He took a loaded firearm into rival gang territory and fired multiple shots at retreating men. The court's imposition of the minimum amount allowable by law was not constitutionally excessive.
4. The Stay of the Count 2 Sentence
Finally, the Attorney General contends the trial court erred in staying the sentence on count 2 under section 654, and the matter should therefore be remanded for resentencing. We disagree.
"[S]ection 654 prohibits punishment for two crimes arising from a single indivisible course of conduct. [Citation.] If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] The defendant's intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence." (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)
In staying the count 2 sentence under section 654, the trial court explained: "because of the nature of the shooting that was on [the surveillance video] tape . . . [i]t looks to me [like] it was one act, not two, even though there were potentially two victims." This factual determination is supported by substantial evidence: the surveillance video of the crime. We therefore deny the Attorney General's request to remand the matter for resentencing.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.