Opinion
E063705
01-11-2017
THE PEOPLE, Plaintiff and Respondent, v. PEDRO PEREZ, Defendant and Appellant.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVA1201922) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed in part, reversed in part and remanded for resentencing. Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Pedro Perez, an admitted Lott Gang member, attended a family party in 2009; after the victim, John Doe 1 (JD1), made a comment to defendant, defendant attacked JD1 with a knife, stabbing him in the face and neck. In 2011, defendant attended another family party and got angry with the victim, John Doe2 (JD2), when JD2 refused defendant's command to drive to pick up someone for him. Defendant shot JD2 in the knee and hip. JD2's girlfriend, Jane Doe (Jane), was also hit with one of the bullets.
Defendant was convicted of three counts of attempted murder, assault with a deadly weapon, two counts of assault with a firearm, being a felon in possession of a firearm, with allegations that he committed the crimes for the benefit of and in furtherance of the Lott Gang; numerous gun use enhancements were found true.
Defendant makes the following claim on appeal: The trial court erred when it denied his motion to bifurcate the gang allegations from the trial on the substantive charges; and, there was insufficient evidence presented that he committed the attempted murders to benefit or in furtherance of the Lott Gang, to support the true finding on the gang allegations.
The trial court properly concluded the gang allegations were relevant to the underlying charges when it denied bifurcation; however, although there was evidence presented to show that defendant was a Lott Gang member, there was insufficient evidence presented that the crimes committed were for the benefit of or in association with a gang. As such we reverse the gang allegations found true pursuant to Penal Code section 186.22, subdivision (b)(1)(A) and remand for resentencing.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
Defendant's 2009 and 2011 cases were consolidated for trial. Defendant was found guilty of attempted murder in count 1 against JD1. (§§ 664, 187, subd. (a).) The additional allegations that he personally used a deadly weapon, a knife (§ 12022, subd. (d)(1)); personally inflicted great bodily injury (§ 12022.7, subd. (a)); and that he committed the crime for the benefit of or at the direction of a criminal street gang (§ 186.22, subd. (b)(1)(A)) were found true. In count 2, defendant was convicted of assault with a deadly weapon against JD1 (§ 245, subd. (a)(1)), with the allegations that he personally inflicted great bodily injury (§ 12022.7, subd. (a)); and that he committed the crime for the benefit of the gang (§ 186.22, subdivision (b)(1)(A)) found true.
In count 3, defendant was found guilty of the attempted, premediated and deliberate murder of JD2 (§§ 664, 187, subd. (a)). The jury found true the allegations that defendant committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1) (A)); that he personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)); personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); personally discharged a firearm (§ 12022.53, subd. (b)); personally inflicted great bodily injury (§ 12022.7, subd. (a)); and the gang allegation (§ 186.22, subd. (b)(1)(A)).
In count 4, he was found guilty of attempted murder against Jane. The jury also found true the allegations that defendant personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)); personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); and that he committed the crime for the benefit of or at the direction of a criminal street gang.
Defendant was found guilty in count 5 of being a felon in possession of a firearm. In count 6, defendant was convicted of assault with a firearm against JD2 (§ 245, subd. (a)(2)). The jury also found true the allegations for count 6 that defendant personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)); personally used and intentionally discharged a firearm (§ 12022.53, subd. (c)); personally used a firearm causing great bodily injury (§ 12022.53, subd. (d)); and the gang allegation (§ 186.22, subdivision (b)(1)(A)). In count 7, defendant was found guilty of assault with a firearm (§ 245, subd. (a)(2) against Jane. In addition, the jury found true the allegations that defendant personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)); personally and intentionally used a firearm (§ 12022.53, subd. (c)); and the gang allegation (§ 186.22, subd. (b)(1)(A)).
After waiving his right to a jury trial, the court found that defendant had suffered two prior serious and violent felony convictions (§§ 667, subds. (a) & (b)-(i), 1170.12, subds. (a)-(d)) for all counts and he had served five prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to 134 years to life in state prison.
FACTUAL AND PROCEDURAL HISTORY
A. THE ATTACK OF JD1 WITH A KNIFE
On June 27, 2009, JD1 was dating Virginia Mayorga. On that night, JD1 and Mayorga attended a party on Jackson Street in Fontana. The party was to celebrate a baptism. About 30 to 50 people were present at the party. Defendant was dating Mayorga's sister.
Defendant was friendly with JD1 throughout the evening. Toward the end of the party, JD1 was waiting on the front lawn for Mayorga to come back to the party and pick him up. He was standing with his brother-in-law. JD1 told defendant that he would see him later. Specifically, he said "'I'll see you later, Guey.'" JD1 denied that "guey" was an insult; it was something said to a friend when saying goodbye. JD1 admitted that the terms could be taken as an insult in some situations.
Defendant got mad and told him that he did not like being called "Guey." However, defendant shook JD1's hand and went inside. JD1 thought everything was okay.
Defendant emerged from the house a few minutes later and struck JD1 with a knife. JD1 tried to protect himself by holding up his hands. He did not recall covering his face. JD1 did not have a weapon. JD1 feared for his life as defendant was stabbing him. JD1 was bleeding a lot. Defendant stabbed him in the neck. JD1 fell to the ground and defendant stopped stabbing him.
JD1 had a deep cut above his lip. He also had a cut on the side of his head. He received staples in his neck from a gash caused by the knife. He also had to have staples on the back of his head where he was cut. He suffered three cuts on his arm. The wound to JD1's neck was potentially life-threatening because of the possibility the knife could have hit a major blood vessel or the spinal cord. One of the stab wounds perforated the outside of the carotid artery causing air to enter the artery, which was potentially life threatening.
JD1 was interviewed by a police officer the next day. He identified defendant from a photograph shown to him. JD1 did not know prior to this incident that defendant was a gang member. JD1 never saw defendant's tattoos.
Thomas Castro was Mayorga's son and was at the party. He had seen defendant and JD1 talking in the front yard. Defendant went back inside the house and then came out. Defendant hit JD1 in face with his fist two times. Castro saw defendant stab JD1 with a knife. Defendant then rushed to a car and was driven away by someone Castro did not know. Castro took off his shirt and tried to stop the bleeding from JD1's neck. There was a lot of blood. Castro had previously seen a number 13 tattoo on defendant's stomach but was not sure if he belonged to a gang. Castro heard JD1 call defendant "Guey," which Castro indicated could be a disrespectful word.
Mayorga went with JD1 to the party. She had known defendant for seven years. Mayorga knew prior to the stabbing that defendant was a member of a gang. She knew he had some sort of tattoos.
At the end of the evening, Mayorga left for a short time to take some of her children home. Defendant and JD1 were talking in the front yard when she left. When she returned, JD1 was sitting on the ground. JD1 was bleeding from his arm and neck. Mayorga took him to the hospital. JD1 told her that defendant stabbed him.
Danny Diaz was also at the baptism party. He was Mayorga's cousin. Diaz knew defendant from him dating Mayorga's sister. Diaz saw defendant swinging at JD1. He did not see blood until later. Defendant was driven away by someone else; he left his car at the house. Diaz told the police that JD1 and defendant were both drunk and Diaz thought JD1 was calling defendant names.
Fontana Police Officer Christian Surgent investigated the scene and found a Corona beer bottle with blood on it. He also located a car that was still at the scene, which belonged to defendant. Diaz told him that defendant and JD1 were arguing and that defendant initiated the fight by lunging at JD1. Officer Surgent did not find a knife.
B. THE SHOOTING OF JANE AND JD2
On February 12, 2011, JD2 and Jane attended a family party on Seville Street in Fontana. There were more than 40 people at the party. JD2 was standing with some friends in the backyard when defendant and JD2's uncle called him over. JD2 knew defendant as a friend of the family. Defendant told JD2's uncle to give JD2 his car keys and that JD2 should pick up the uncle's son, who was not at the party. JD2's uncle objected saying it was late. Defendant told the uncle that JD2 was going to do it or "he's going to get fucked up." JD2 just walked away. Defendant was angry.
About five minutes later, defendant called JD2 to the front yard of the house. JD2 walked out the front door to the front yard where defendant was already waiting. JD2 noticed that defendant had a firearm in one hand and a beer bottle in the other hand. They both walked to the driveway. Defendant said to JD2 repeatedly, "You think you're bad." JD2 did not respond. Defendant hit JD2 in the head with the beer bottle. Defendant shot JD2 while standing within two feet of him; he shot two times. Defendant was shooting downward. JD2 was shot in the upper thigh and the ankle. The bullet went in his right leg and out his left leg. Defendant took off running. Defendant never said anything to JD2 while he was shooting him.
JD2 denied telling the police that defendant shot him because he called defendant out in front of all the people at the party. JD2 thought defendant hit him with the beer bottle and shot him because he was drunk. JD2 described defendant's clothing to the police, which was a Hawaiian shirt, jeans and white shoes. JD2 thought that defendant was drunk. JD2 denied he said anything disrespectful to defendant at the party.
JD2 did not want to identify defendant because he did not want to be called a snitch. JD2 was shunned by his family for testifying because most of them were gang members; he was not a gang member. JD2 knew prior to the shooting that defendant was a Lott Gang member.
Jane indicated there were at least 40 people at the party that night and many of them were children. Jane observed JD2 and defendant walk to the front of the house. She followed them. Jane never heard JD2 say anything to defendant while they were walking to the front door of the house. Defendant said something to JD2 about him thinking he was a "bad ass." JD2 never responded. Jane believed that defendant shot JD2 two times at close range. Jane was in fear of her life and for the life of JD2. Defendant then ran away but turned around and shot one more time. One of the bullets hit Jane in the leg. Both her and JD2 were transported to the hospital in an ambulance.
Jane was not sure if defendant was a gang member. She was aware of threats made to her family if she testified. Jane did not think that defendant pointed the gun at her. The bullet only grazed her leg.
Yvonne Hernandez was at the same party on February 12, 2011. She thought she heard three gunshots. She was standing near the front door but did not see the shooter. She saw that Jane and JD2 were injured. Alex Gonzalez was Jane's uncle and saw defendant, JD2 and Jane at the party. He was in the backyard when he heard three popping noises and knew it was gunshots. He ran to the front and saw JD2 and Jane had been shot. Gonzalez was not afraid of defendant.
Fontana Police Officer Erik Savage was on duty the night of February 12, 2011. When he and his partner, Officer Buddy Porch, arrived at the party, he observed JD2 and Jane laying down in the driveway of the residence. Gonzalez told Officer Savage defendant had been pacing back and forth in the backyard during the party. Defendant then waved to JD2 and they were talking. It appeared to Gonzalez that they were arguing. They then both walked to the front yard. He heard gunshots a few minutes later. Officer Savage located two, nine-millimeter expended casings at the location. He also found a broken beer bottle.
C. APPREHENSION OF DEFENDANT
Defendant was identified as the perpetrator in both crimes. Defendant was eventually located in his girlfriend's car on December 26, 2012. He told Officer Porch at the time of his arrest that his name was Jimenez. He had a large tattoo of the letters "Lott 13" on his stomach. Defendant admitted to Officer Porch that his gang moniker was Pirate. A loaded nine-millimeter gun was found in the trunk. The shell casings found at the scene were not matched to the gun but could have been used in the gun.
Defendant told jail officials while being classified into jail that he was an active gang member and was a member of the Lott Gang. Defendant told the classification officer that he had been jumped into the gang when he was 17 years old.
D. GANG EVIDENCE
Officer Porch also testified as a gang expert. Officer Porch spoke with gang members on a daily basis. Officer Porch was familiar with the LA Eme gang. La Eme and Mexican Mafia were the same. La Eme consisted of several Hispanic gangs in the Inland Empire that joined together in prison. La Eme ran the gangs in prison. Any Hispanic gang had to "pay tribute" to La Eme in prison. A gang member would have to give money and drugs to the La Eme gang in prison in order to be protected. The La Eme gang also was in charge of all Hispanic gangs that were on the street. Each gang had to pay the La Eme gang.
Officer Porch indicated that based on his knowledge and experience, a La Eme gang member must be respected. If a La Eme member is disrespected, he must engage in a violent retaliation because he must not show weakness to anyone around him.
A gang moniker was given to a gang member by an older gang member when first joining the gang. Tattoos of the gang name was a form of allegiance to the gang. Common tattoos showing allegiance to La Eme was the number 13 or the letter M. A gang member had to ask permission to have a La Eme tattoo.
Officer Porch indicated that a gang member can actually commit crimes outside the gang's territory. These crimes still showed allegiance to the gang and the money received benefitted the gang. Many gang members who joined a gang while living in Los Angeles moved to Moreno Valley but continued their gang allegiance. The gang member showed his allegiance by getting gang tattoos and giving money to the gang.
Officer Porch explained that the Lott Gang started as a gang for drug users. The various clicks of the Lott Gang had territory in East Los Angeles and Montebello. Members of the Lott Gang had been arrested for murder, attempted murder, burglary, and sales of drugs and controlled substances. As a Hispanic gang, they would have to give respect to La Eme. The Lott Gang had 100 documented members. Even though the Lott Gang territory was in East Los Angeles and Montebello, a gang member could commit a crime in another area.
A room where defendant was staying was searched. Two pieces of paper were found with two different names Sal Hernandez and Al Hernandez—and addresses on them. Officer Porch searched a gang database and determined that Al and Sal Hernandez were members of the Mexican Mafia. Defendant had previously been investigated with Sal and Al Hernandez for sales of controlled substances.
It was Officer Porch's opinion that defendant was a member of the Lott Gang. He based his opinion on the large Lott tattoo defendant had on his stomach and defendant also had a number 13 tattoo. Further, witnesses testified in this case that defendant was a known member of the Lott Gang. When he was classified in the jail, he admitted he was a member of the Lott Gang and that his gang moniker was Pirate. Defendant admitted in a prior case in 2007 involving possession for sales of drugs that he was a Lott Gang member. Defendant was convicted in that case of committing the crime for the benefit of the gang within the meaning of section 186.22, subdivision (b)(1)(A). Further, it was significant that defendant had the names of known Mexican Mafia gang members in his room. This meant he was in good standing with the Mexican Mafia.
Officer Porch also testified about three other Lott Gang members who had committed crimes of assault with a firearm, attempted murder, shooting at an inhabited dwelling, and murder.
Officer Porch had reviewed all of the police reports connected to the stabbing and shooting in this case. Officer Porch was then asked a hypothetical based on his training experience as follows: If an admitted gang member attended a party with a large number of people around, and at least one of the persons at the party knew he was a gang member, and that gang was known for committing murders and assaults, and a party goer called the gang member a name, and thereafter the gang member stabbed the other party goer, and the gang member was eventually apprehended with the names of Mexican Mafia gang members in his possession, was the stabbing committed for the benefit of the gang?
Officer Porch opined the stabbing would be committed to benefit or further the gang. Based on Officer Porch's training and experience, a gang member who feels disrespected must retaliate with violence. It benefitted the gang by showing he was willing to go to jail just to protect his reputation. He would do whatever it took to tell people he and the gang deserved respect. By stabbing a person in front of other people, it would instill fear in the community and would increase his stature in the gang. Further, he could boast about it to other gang members. A violent gang member was more respected.
Officer Porch was then asked about a hypothetical where the same gang member years later attends a family party and ends up shooting someone at the party in front of several people. About one year after the shooting, the gang member is apprehended. None of the persons who knew the gang member reported his location to the police. Officer Porch indicated it showed the persons who knew the gang member's whereabouts were afraid to disclose his location. Further, by committing both crimes, it showed the gang member had a continuous pattern of violent criminal activity. In Officer Porch's experience, a person who "snitched" on a gang member would be retaliated against and it could be in the form of an assault or even murder.
Officer Porch was also asked a hypothetical based on the facts of a shooting at a family party, by a gang member, of a victim who refused to drive someone as asked by the gang member. Officer Porch was asked based on his experience and training whether this was committed for the benefit of the gang. Officer Porch believed the gang member was benefitting the gang by instilling fear in the community. He was protecting the reputation of the gang because persons at the party knew he was a gang member. He had to stick up for the gang no matter where he was, even if not in the gang's territory.
Officer Porch opined also that it did not matter if the crimes occurred at a family party; gang members feel more allegiance to the gang than what they feel toward family.
Officer Porch was asked if a gang member could commit any crime that was not in furtherance of the gang; he responded small crimes such as petty theft and drunk in public because these crimes did not benefit the gang. However, if the gang member used his gang status to commit the petty theft, it would be in furtherance of the gang. Officer Porch admitted it was common for gang members when they commit crimes to call out their gang's name. Officer Porch admitted that not every time a gang member gets mad or upset and commits a crime was it to benefit the gang. He admitted it was possible for a person to punch another person in the face and it not to be gang related.
Officer Porch also admitted in regards to the hypothetical about the stabbing that it was "possible" it was committed because the gang member was "pissed off and angry" and not for the benefit of the gang. He admitted it was possible a gang member could commit a violent crime and it not be for the benefit of the gang.
Defendant presented no evidence.
DISCUSSION
A. MOTION TO BIFURCATE GANG EVIDENCE
Defendant contends the trial court erred by refusing his pretrial motion to bifurcate the gang allegations from the underlying charges.
1. ADDITIONAL FACTUAL BACKGROUND
Prior to trial, defendant brought a motion to bifurcate the gang allegations from the substantive charges pursuant to section 1044. Defendant's counsel argued that defendant's guilt on the underlying charges had no relation to gang activity. Moreover, the gang evidence was unduly prejudicial. Defendant's counsel argued, "It is hard to see how any jury could be expected to weigh the evidence fairly in this case given the fact that they will be told that the defendant is a member of a group that has terrorized the community with murders, robberies, assaults and drug sales for years." The jury would conclude that he had a propensity for violence.
The trial court considered the motion to consolidate and the motion to bifurcate the gang evidence together. The trial court first noted, "I see the gang charge, in and of itself, a weaker charge. Not that the jury couldn't convict on that. As a charge, it may be weak. However, as evidence of motive or intent to support the People's proposition that it may have been attempted murder, I could see allowing it for those purposes in both cases." The trial court also noticed it did not seem like it was a "gang case" but rather that defendant lost his temper. The People responded that the gang evidence was relevant for motive. Further, defendant, as a gang member who was disrespected, had to respond with violence due to his gang affiliation.
The trial court ruled that the gang evidence was "part and parcel" of the circumstantial evidence that defendant had intent to commit attempted murder. Further, if the witnesses were reluctant to testify, as argued by the People, and they knew defendant was a member of a gang, it would be relevant to explain the reluctance of the witness to testify.
2. ANALYSIS
Section 1044, which vests the trial court with broad discretion to control the conduct of criminal trial proceedings, gives the trial court the authority to bifurcate the trial on the underlying charge from the finding on truth of the gang allegations. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) "[T]he criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense." (Ibid.) "[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (Id. at p. 1049.)
"'[E]vidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative.' [Citations.] Indeed, gang evidence is 'relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related.' '"[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence."'" (People v. Franklin (2016) 248 Cal.App.4th 938, 953 (Franklin).)
"This is not to say that a court should never bifurcate trial of the gang enhancement from trial of guilt. . . . The predicate offenses offered to establish a 'pattern of criminal gang activity' (§ 186.22, subd. (e)) need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Hernandez, supra, 33 Cal.4th at p. 1049.)
"We review the trial court's denial of the motion to bifurcate for abuse of discretion, based on the record as it stood at the time of the ruling." (Franklin, supra, 248 Cal.App.4th at p. 952.)
This case is similar to Franklin, supra, 248 Cal.App.4th 938. In Franklin, the defendant, an admitted gang member, threatened his on and off again girlfriend, leaving messages on her answering machine telling her she would "regret 'fuckin' with a real gangster.'" He also ransacked her room and stole her property. The defendant eventually forced his girlfriend into his car and hit her with a pipe. He then drove her around, meeting up with other gang members—he drove in his own and rival gang territory. (Id. at pp. 942-944.) A gang expert testified that the crime was committed for the benefit of the gang because it was committed in the gang's territory; it was a violent crime, which showed that defendant was willing to put in work for the gang; he committed the crime with the assistance of other gang members; and this violent crime helped instill fear in the community. (Id. at p. 945-947.)
The appellate court reversed the true finding on the gang allegations but rejected the defendant's argument that the trial court erred by denying his motion to bifurcate the gang allegations made prior to the trial. It concluded that, "We find no abuse of discretion in the trial court's denial of the defense bifurcation motion here. The prosecution's theory was that appellant's motive in committing the crimes was to protect his status in the gang and strike back at [his girlfriend] for disrespecting him and his gang. According to the prosecution, appellant retaliated against [the girlfriend] for publicly disrespecting him by burglarizing her home, attempting to extort money from her for the return of her property, assaulting her with a metal pipe, and kidnapping her. The gang evidence here was thus relevant to the prosecution's theory of motive. That the defense countered with a different theory did not diminish the relevance of the gang evidence offered in support of the prosecution's case, nor does our conclusion that substantial evidence does not support true findings on the gang allegations mean that such evidence was inadmissible to prove the substantive charges." (Franklin, supra, 248 Cal.App.4th at p. 953.)
Here, the People sought to admit the gang evidence to show defendant's motive for committing both of the crimes. At the time the trial court ruled on the motion, the People represented it was their theory that defendant's motive in committing the crimes was because he was disrespected; as a gang member he could not be disrespected. The People were also concerned that some of the witness may be reluctant to testify and wanted to use defendant's gang ties as the reason for the witness's reluctance to testify. The trial court did not err by concluding that the evidence was relevant to the underlying charges.
The Franklin court also noted that the jury was given a limiting instruction on the gang evidence, that it could only be considered with respect to the gang allegations and to show motive. This eliminated any concern the jury used the evidence for an improper purposed, such as propensity. (Franklin, supra, 248 Cal.App.4th at p. 953.) Similarly here, the trial court instructed the jury with CALCRIM No. 1403. This instruction effectively told the jury that they were to consider the gang evidence only in connection with the gang allegation, or that defendant had a motive to commit the attempted murders, and the jury was not to consider the gang evidence as propensity evidence. We see nothing in the record to suggest that the jury considered the gang evidence for an improper purpose. We presume the jury followed the limiting instruction. (See People v. Waidla (2000) 22 Cal.4th 690, 725.) Moreover, the evidence was overwhelming that defendant stabbed JD1 when JD1 was unarmed and caused serious injury. It was undisputed that he shot JD2 at point-blank range and that JD2 was unarmed. Jane was hit by a bullet when defendant deliberately shot at JD2. The trial court did not abuse its discretion by denying the motion to bifurcate.
B. SUFFICIENT EVIDENCE OF THE GANG ALLEGATION PURSUANT TO SECTION 186.22, SUBDIVISION (B)(1)(A)
Defendant contends the evidence was insufficient to prove the gang allegation pursuant to section 186.22, subdivision (b)(1)(A) as there was no evidence short of speculation by the gang expert that the crime was committed for the benefit or in association with a street gang.
When the sufficiency of evidence is challenged on appeal, we must review "the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Davis (2009) 46 Cal.4th 539, 606.) "We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence." (People v. Alvarez (2009) 178 Cal.App.4th 999, 1004.)
"[T]he STEP Act prescribes increased punishment for a felony if it was related to a criminal street gang. (§ 186.22, subd. (b)(1).) '[T]o subject a defendant to the penal consequences of the STEP Act, the prosecution must prove that the crime for which the defendant was convicted had been "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).)'" (Hernandez, supra, 33 Cal.4th at p. 1047, fn. omitted.) In addition, the People must "establish that a group is a criminal street gang within the meaning of the statute [by showing] (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity." (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.)
In a gang-related case, the use of expert testimony on gangs "is well established." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370, overruled on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) "In order to prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs." (Hernandez, supra, 33 Cal.4th at pp. 1047-1048.) An expert witness may testify about "background information regarding his knowledge and expertise [as well as] premises generally accepted in his field," even if that knowledge, expertise, or premises are based on what the expert has learned from out-of-court statements. (People v. Sanchez (2016) 63 Cal.4th 665, 685.) However, an expert may no longer testify to "case-specific out-of-court statements to explain the bases for his opinion" unless they fit within an exception to the hearsay rule; the relevance of the expert's opinion hinges on the truth of such statements so they are "necessarily considered by the jury for their truth." (Id. at pp. 684, 686.)
We need not address whether any evidence was improperly admitted hearsay as neither party has raised the issue and it is not determinative of the resolution of the matters on appeal.
"A gang expert's testimony alone is insufficient to find an offense gang related. [Citation.] '[T]he record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.'" (People v. Ochoa (2009) 179 Cal.App.4th 650, 657 (Ochoa).)
Ochoa is similar to this case. In Ochoa, the defendant was convicted of carjacking and found to have committed the act for the benefit of a gang. (Ochoa, supra, 179 Cal.App.4th at p. 652.) The victim was sitting in a car when the defendant approached, pulled a shotgun out of his jacket, pointed it at the victim's face and told the victim to give him the vehicle. The defendant took the vehicle and drove away. The defendant did not use any gang signs and was alone. (Id. at p. 653.) Evidence was also presented that the defendant had previously identified himself to law enforcement as a member of a gang and had gang tattoos on his back and wrist. (Id. at pp. 653-654.) The gang expert testified that the defendant committed the carjacking for the benefit of his gang based on his conclusion that the carjacking would benefit the gang by "providing general transportation to the gang's members, by enabling transportation of narcotics for sale by the gang, by enabling transportation to commit further crimes by the gang, by providing economic benefit to the gang by sale of the vehicle, by elevating [the] defendant's status within the gang, and by raising the gang's reputation in the community." (Id. at pp. 655-656.)
The appellate court reversed the finding on the gang allegations finding that insufficient evidence was presented to support the allegation. The court explained that the defendant was alone, "did not call out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti while committing the instant offenses." (Ochoa, supra, 179 Cal.App.4th at p. 662.) The court additionally stated there was no evidence the crimes were committed in the defendant's claimed gang territory or the territory of any of its rivals. The court reasoned the gang expert had no specific evidentiary support for making such inferences and that the expert's testimony was purely speculative. (Id. at pp. 662-663.)
Here, it was undisputed that defendant was an active member of the Lott Gang. However, defendant did not state at any time during either of the offenses that he was a member of the Lott Gang. He did not display his tattoos and did not say any words to the victims commonly used by gang members when committing crimes, such as asking the victim where he was from. Defendant was not dressed in gang attire. The two offenses were not committed with other Lott Gang or Mexican Mafia members. Defendant did not commit the offenses in gang territory. Although the gang expert testified that Lott Gang members committed crimes outside the gang territory to show allegiance to the gang, and the money received benefitted the gang, no evidence supported that this was the case in the instant crimes. None of the victims were gang members.
Officer Porch testified that the stabbing and shooting could benefit defendant's gang by instilling fear in the community and the violent crimes would increase defendant's reputation in the gang. Further, a gang member could not be disrespected in public. However, the record is devoid of any specific evidentiary support from which to draw such inferences. No evidence was offered that Lott Gang members, whose territory was in Los Angeles and Montebello, committed offenses in other areas. Further, although defendant possessed the names and addresses of known Mexican Mafia members, there was no evidence that defendant had any rank or status in the Mexican Mafia. As stated by the court in Ochoa, "The gang enhancement cannot be sustained based solely on defendant's status as a member of the gang and his subsequent commission of crimes." (Ochoa, supra, 179 Cal.App.4th at p. 663.)
Moreover, Mayorga only recalled that defendant was a gang member, but could not recall his tattoos. JD2 thought defendant was a gang member, but JD2 was not afraid of him. No one at the party said they were afraid because defendant was a gang member. Further, as argued by defense counsel, if defendant's intent in committing his crimes was to show the people at the party that he should not be disrespected and that the crimes were committed to increase his reputation, this did not explain why he directed JD2 to the front yard prior to shooting him; and confronted JD1 in the front yard, where in both instances less people observed his so-called retaliation.
Here, the evidence established only that the crimes were committed by a member of a gang. Defendant did not have visible tattoos, he was not wearing gang clothing, he never mentioned his gang name or other statements that would infer it was a gang crime, he committed the crime outside the Lott Gang territory, and there were no other gang members present. It was speculation that the attempted murders were committed to benefit the gang or to save defendant's reputation. Even the expert agreed it was possible defendant was just angry and committed these crimes because he was upset. There was no established evidence that this would benefit the Lott Gang. For these reasons, we hold the evidence was insufficient to support the gang allegations.
Since we conclude that insufficient evidence was presented to support the gang allegations, we need not address defendant's additional claim raised that the trial court erred by denying his motion for new trial based on this same ground. --------
Remand for resentencing is not necessary on the striking of the gang allegations because the trial court did not impose sentence on the gang allegations. However, the trial court stayed imposition of sentence on the section 667.5, subdivision (b) enhancements. "The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal." (People v. Bradley (1998) 64 Cal.App.4th 386, 391.) As such, remand is necessary in order for the trial court to properly exercise its discretion to strike or impose the section 667.5, subdivision (b) priors.
DISPOSITION
The true findings on the gang enhancement allegations are reversed, and the case is remanded to the trial court for resentencing. Upon resentencing, the trial court shall send a new abstract of judgment to the Department of Corrections and Rehabilitation reflecting the new sentence and striking of the gang allegations. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. CODRINGTON
J.