Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA 337316. Carol H. Rehm, Jr., Judge.
Lisa Holder, 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, Jaime L. Fuster and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
A jury found Ramon Ordonez guilty of one count of second degree robbery and found that Ordonez committed the offense for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in the gang’s criminal conduct, in violation of Penal Code section 186.22, subdivision (b)(1). Ordonez admitted he was on bail at the time he allegedly committed the crime. The court sentenced Ordonez to a 14-year prison term. We modify the judgment by striking the gang enhancement and affirm the judgment as modified.
FACTS AND PROCEEDINGS BELOW
A jury convicted Ordonez and a codefendant, Jose Cruz, of the robbery of Tyron Villatoro.
The evidence showed that Villatoro was walking on Las Palmas Avenue between Hollywood Boulevard and Yucca Street in the early morning hours when two men jumped out of a van and pushed him against the wall of an apartment building. One of the men placed a crowbar against Villatoro’s rib cage. A third man then got out of the van and joined the other two. While one of the men held the crowbar the other two searched Villatoro’s pockets. The men took his wallet, money, house keys, hat and backpack, got back into the van and drove away. None of the men mentioned a gang, flashed a gang sign or asked Villatoro, “Where you from?” A few minutes after the van drove off, Villatoro flagged down a Los Angeles police officer, reported the crime and described the van.
Later that morning police stopped a van matching the description given by Villatoro. Inside the van they found Villatoro’s identification card and Social Security card. The officers also found a crowbar under the front passenger seat.
The police brought Villatoro to the location of the van. There, he identified items found inside it as belonging to him including his keys, a CD player and some compact discs. In a field show-up at the same location Villatoro identified Ordonez, Cruz and one other man as the men who robbed him. Villatoro also identified Ordonez at trial. Two women were in the van when the police stopped it but Ordonez did not identify either of them as having been in the van when the robbery occurred.
The only evidence relating to the gang enhancement allegation was the testimony of Officer Tiffany Eastman of the Los Angeles Police Department.
Eastman testified Mara Salvatrucha, also known as M.S., was a gang in the Hollywood area and that Ordonez and his codefendant, Cruz, were members of that gang. Males generally become members of a gang, Eastman testified, by being “jumped in.” This means the person allows one of the older, respected members of the gang to physically beat him to show loyalty, toughness and what he is willing to go through for the gang. Over Ordonez’s objection Eastman testified females generally join a gang by being “sexed in.” This means that “they usually have to have intercourse with one or more or several of the gang members of that gang.”
Eastman further testified that she was familiar with M.S. from her six years working the Hollywood gang enforcement detail. Based on that experience, Eastman knew that M.S. engaged in murder, assault, kidnapping, rape and robbery. Robbery benefited the gang, Eastman explained, by “boosting up” the gang’s reputation for violence. This reputation in turn makes victims and witnesses living in the gang’s territory less likely to report crimes committed by members of the gang. Eastman was also allowed to testify, over Ordonez’s objection, that rivalries between gangs often culminate in shootings and murders and that she was aware of cases in which M.S. members had committed robbery, rape and murder.
Although the Villatoro robbery occurred approximately two miles outside the M.S.’s territory, in the territory of its rival the 18th Street gang, in Eastman’s opinion the robbery nevertheless benefited M.S. by sending a message to the members of the 18th Street gang that the M.S. was strong and that it was moving into their territory.
The jury found that Ordonez robbed Villatoro and that he did so for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in the gang’s criminal conduct, in violation of Penal Code section 186.22, subdivision (b)(1). (The jury returned the same verdict as to Cruz.) The trial court sentenced Ordonez to two years for the robbery, a consecutive two years for the bail enhancement and a consecutive ten years for the street gang enhancement.
All statutory references are to the Penal Code.
On appeal, Ordonez contends that the admission of evidence of the sexual initiation rites and violent behavior of gangs was error and so inflamed the jury that we are required to reverse his robbery conviction. He further contends that even if we affirm the robbery conviction, the evidence was insufficient to sustain the street gang enhancement.
DISCUSSION
I. EVIDENCE OF SEX AND VIOLENCE AMONG GANG MEMBERS
Ordonez contends that the jury convicted him of robbery based on the erroneous and prejudicial admission of evidence that some females have sex with multiple male gang members and that gang members commit murders which testimony so shocked and inflamed the members of the jury that they convicted him on “weak” evidence of his guilt. We disagree.
Even assuming the court abused its discretion in admitting the challenged evidence, any error in permitting the gang evidence was harmless because the robbery evidence against Ordonez was strong. Property stolen from Villatoro a few hours earlier was found in a van occupied by Ordonez. At a field show-up and at trial Villatoro identified Ordonez as one of the men who robbed him.
II. SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE GANG ENHANCEMENT
In resolving a challenge to the sufficiency of the evidence we review the record in the light most favorable to the judgment and presume the existence of every fact the jury could reasonably deduce from the evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) Having conducted that review applying a deferential standard, we nonetheless conclude that substantial evidence does not support the gang enhancement.
At the time of Ordonez’s trial, section 186.22, subdivision (b)(1) stated: “[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 be punished pursuant to that section. Thus, there are two elements that must be proved in order to impose an enhancement under section 186.22, subdivision (b): (1) the defendant committed the offense “for the benefit of, at the direction of, or in association with any criminal street gang” and (2) the defendant did so “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (People v. Hill (2006) 142 Cal.App.4th 770, 773-774.) Because no substantial evidence showed that Ordonez robbed Villatoro “for the benefit of, at the direction of, or in association with any criminal street gang” we need not address the second prong of the statute: whether the defendant acted with the specific intent to promote, further, or assist in any criminal conduct by gang members.
There is no evidence that in committing the crimes, Ordonez and Cruz were united in action or joined in interest, purpose or objective with the M.S. gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) The robbery was committed two miles from the gang’s home territory, on the turf of a rival gang, and no evidence (other than Officer Eastman’s speculation) tied the robbery to the gang. Further, no gang slogans, display of gang signs, gang clothing, or the like accompanied the robbery. The only connection between the gang and the robbery was that two of the three robbers were members of the same gang. But criminal activity by gang members acting in concert, standing alone, is not sufficient to support a gang enhancement. (People v. Morales, supra, 112 Cal.App.4th at p. 1198.) Accordingly, the gang enhancement must be stricken.
DISPOSITION
The judgment is modified to strike the 10-year street gang enhancement under section 186.22, subdivision (b)(1), and the cause is remanded to the trial court for resentencing. In all other respects the judgment is affirmed.
We concur: MALLANO, P. J., JOHNSON, J.