Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. PA059538, Ronald S. Coen, Judge.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, J.
On different days from September 2006 to May 2007, including at different times on one such day, Yvonny Pensado committed a series of crimes against different victims at different locations in the San Fernando Valley. In February 2008, a jury convicted Pensado of five counts of second degree robbery, two counts of attempted robbery, and one count of misdemeanor battery. In conjunction with the conviction for the robbery alleged in count 1, the jury further found that Pensado committed the crime to benefit a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1). The trial court sentenced Pensado to an aggregate term of 20 years, 8 months in prison, including a 10-year term for the gang enhancement attached to count 1. Pensado’s sole contention on appeal is that the jury’s gang finding attached to count 1 is not supported by substantial evidence. We disagree, and affirm the judgment in its entirety.
Because Pensado’s arguments on appeal solely focus on the gang finding ancillary to count 1, our statement of facts is limited to that single crime. The nature of Pensado’s arguments on appeal implicitly concede that substantial evidence supports his seven other convictions.
At about 1:55 p.m., on May 30, 2007, Omar Munoz was walking to work when Pensado stepped out of a parked Nissan Armada, pointed a handgun at Munoz’s head, and asked, “Where are you from?” After Munoz answered that he was “from nowhere,” and that he “just [went] to school and work,” Pensado demanded and took Munoz’s IPOD and cell phone. While Pensado was taking Munoz’s electronics, Terry Mayorga got out of the Armada, and took Munoz’s New York Yankees baseball cap. Two women remained in the Armada. Before he and his companions drove away, Pensado punched Munoz in the face, knocked him to the ground, and kicked him in the ribs.
At about 10:55 p.m., Los Angeles Police Department Officer Craig Majors and his partner stopped and searched a Nissan Armada being driven by Pensado. Terry Mayorga and two women were passengers in the vehicle. Officer Majors found Munoz’s IPOD, telephone and baseball cap in the Armada, along with a “replica” Beretta 92-F handgun. (Mayorga was wearing Munoz’s baseball cap.) Officer Majors also found a black cap with a “13” and an “818” in the Armada. Shortly after the traffic stop and search, Munoz identified Pensado at the police station.
In September 2007, the People filed an information which charged Pensado with the second degree robbery of Munoz (count 1), with an ancillary allegation that Pensado committed the crime to benefit a criminal street gang. At a jury trial in February 2008, the People presented evidence establishing the facts summarized above. In addition, both the prosecution and the defense presented expert gang evidence. Officer Todd Costello of the Los Angeles Police Department testified that Pensado was a self-admitted member of the Mara Salvatrucha gang or MS 13 gang, that his gang moniker was “Grumpy,” and that a crime which shared the elements of the crime committed by Pensado would have been committed to benefit the MS 13 gang. James Shaw, a teacher at Los Padrinos Juvenile Court School, testified that a crime with the characteristics of the crime committed by Pensado would not have been committed to benefit the MS 13 gang because there had been no “public proclamation” of the gang’s name during the crime.
On February 22, 2008, the jury returned a verdict finding Pensado guilty of the second degree robbery of Munoz alleged in count 1, with a finding that Pensado had committed the crime to benefit a criminal street gang.
The jury also found Pensado guilty of a misdemeanor battery on Munoz (count 9). Pensado’s battery conviction is not an issue in his current appeal.
DISCUSSION
Pensado contends the jury’s gang finding attached to his conviction for robbing Munoz (count 1) must be reversed because the finding is not supported by substantial evidence. More specifically, Pensado contends the evidence failed to establish that he “actively participated in [the MS 13 gang] or in any of its criminal activities.” According to Pensado: “While it is possible [the robbery] was gang-related rather than personal, there is no evidence, much less substantial evidence, in the record to show it was.” We disagree with Pensado’s assessment of the evidence.
A. Standard of Review
When presented with a defendant’s contention on appeal that a particular factual finding is not supported by substantial evidence, we follow well-settled rules of review: first, we must examine the evidence in the light most favorable to the jury’s decision, and presume in support of that decision the existence of every fact the jury could reasonably deduce from the evidence; second, we may not substitute our own conclusions for those reached by the jury, nor may we substitute our assessment of the credibility of a witness in place of the jury’s credibility calls; and, third, circumstantial evidence is sufficient to sustain a jury’s findings. (See People v. Bloom (1989) 48 Cal.3d 1194, 1208.) With regard to the issue involved in Pensado’s current appeal –– his intent ––, we add this specifically focused rule: because a defendant’s intent is rarely admitted or otherwise shown by direct proof, a jury may infer intent from the circumstances surrounding the charged offense, and a reasonable inference drawn by the jury from the circumstances of the offense is sufficient to constitute substantial evidence of a defendant’s intent. (People v. Pre (2004) 117 Cal.App.4th 413, 420.)
B. Analysis
In Pensado’s current case, the gang evidence, including the evidence on the issue of intent, consisted largely of competing testimony by gang experts. As noted above, the prosecution called Officer Todd Costello, whose testimony established that Pensado had self-admitted his membership in the MS 13 gang prior to the Munoz robbery, including the use of his gang moniker, “Grumpy.” Officer Costello’s also offered his expert opinion that a hypothetical crime which shared the characteristic of the Munoz robbery would have been committed with the intent to further the criminal interests of the MS 13 gang for the following reasons:
“Well, robberies occur within the gang life all the time. MS gang members will go all over the... valley.... [I]n the valley the MS gang is very transient in nature. They don’t just stick to one spot as they do now in the Rampart Wilshire, Hollywood area. In the valley they move around. They have been in the Van Nuys Division, within the border of Van Nuys and North Hollywood, and have also moved over to the West Valley Division in the time that I have been investigating crime with them.
“For an individual, or for individuals to go up to somebody and, first of all, ask them where they are from, that is a gang challenge right off the bat.
“[When] a young Hispanic male gets confronted with the “Where you from” statement and has been around [he] knows these guys are gang members. They are hitting [him] up..., trying to find out if he’s from a rival gang or not.
“When he answers the way he did, he goes to school, whatever, they decide that okay, well, we are going to rob him. He is not claiming any other gang, so we are not going to take this any further than just a robbery, but then they go further and they go ahead and they beat him up.
“This is just showing, first of all, robbery. Robbery is by force or fear. That’s the element of robbery, taking somebody’s property by force or fear. That’s part of the gang culture to create fear and intimidation in a neighborhood, and not necessarily their neighborhood, but in all different neighborhoods.
“For the benefit of the gang, even if they don’t say, “I’m from MS,”[or] “I’m from Barrio Van Nuys,” the word throughout the gang culture spreads really fast due to the fact that if you go into somebody’s neighborhood and you commit a crime in that neighborhood, into a rival gang’s neighborhood you commit a crime in that neighborhood[,]... they want their fellow members to know, first of all, we just did this, so keep a watch out for these guys coming into our neighborhood.
“The other thing is that MS wants to control everything. That’s their, as I said earlier, that is their... goal. Their goal is to control all neighborhoods and be able to go into anybody’s neighborhood at any time that they want and do what they want. [¶] So, in a whole, just the fear, the intimidation that they create throughout the different communities, the different areas in or outside of gang neighborhoods [shows that t]hey can go all over the place. They are just instilling the fear and that’s what benefits the gang.”
Officer Costello’s testimony was sufficient to support the jury’s gang finding, and the testimony given by Pensado’s expert does not persuade us that a different finding is required. At best, the defense expert’s testimony created a triable issue of fact whether or not Pensado robbed Munoz for Pensado’s personal benefit, to the mutual exclusion of benefiting the MS 13 gang. In the final analysis, we may not, even if we were so inclined (which we are not), substitute our conclusions from the evidence for those reasonably reached by the jurors.
We disagree with Pensado that we should reverse the gang finding based on the reasoning and result in Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), in which the Ninth Circuit Court of Appeals ruled that a defendant’s federal petition for writ of habeas corpus had been properly granted in the district court because the prosecution had failed to present any direct or circumstantial evidence showing that the defendant, at the time he committed his robbery offense, intended to advance his gang’s criminal activities. (Id. at pp. 1102-1104.) As the Ninth Circuit saw the evidence: “The [gang] expert’s testimony [was] singularly silent on what criminal activity of the gang was furthered or intended to be furthered by the robbery...,” and evidence showing merely that the robbery had been committed within the boundaries of gang’s “ ‘turf’ ” was not sufficient to prove an intent to promote the gang’s criminal activities. (Id. at p. 1103, maj. opn. by Canby, J.)
Even assuming we ignored the dozens of decisions by our state’s courts of appeal which have found that the Ninth Circuit’s decision in Garcia rested from a fundamental misinterpretation and misunderstanding of California’s gang enhancement statute (see, e.g., People v. Hill (2006) 142 Cal.App.4th 770, 773-774), we would find that Pensado’s current case satisfies the Ninth Circuit’s stated requirements for the quantum of evidence necessary to support a gang finding. Viewed in the light of the substantial evidence test, Officer Costello’s gang testimony during Pensado’s trial filled in the types of evidentiary holes which the Ninth Circuit found in the Garcia case. In Pensado’s current case, Officer Costello’s testimony expressly explained that a person who committed a crime sharing the characteristics of the Munoz robbery would have intended to benefit the MS gang by instilling intimidation in the area, thereby advancing the MS gang’s interest in “doing what they want.” The jury could have reasonably inferred that “doing what they want” meant “doing what they want criminally,” which satisfies Garcia’s concern that, to be enough for additional punishment, gang evidence should show that a crime advanced the gang’s further criminal activities. No additional evidence was needed in Pensado’s current case to support the gang enhancement finding.
DISPOSITION
The judgment is affirmed.
We concur: FLIER, Acting P. J. BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.