Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. PA054077 Charles L. Peven, Judge.
Randy S. Kravis, 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, Senior Assistant Attorney General, Lance E. Winters and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Joseph Portillo was convicted, following a jury trial, of one count of battery in violation of Penal Code sections 242/243, subdivision (a) and three counts of making criminal threats in violation of section 422. The jury found true the allegations that appellant committed all four offenses for the benefit of a criminal street gang within the meaning of section 186.22, subdivisions (b)(1)(A) and (d). Appellant admitted that he had served two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to two years in prison for one of the criminal threat convictions, plus a five-year enhancement term for the gang allegation and a one-year term for the prior prison term allegation, for a total of eight years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support his conviction, and further contending that the trial court erred in instructing the jury with Judicial Council of California Jury Instructions (2006-2007), CALCRIM No. 372, imposing the prior prison term enhancements and calculating his presentence custody credits. Respondent contends that the trial court erred in failing to order appellant to pay a court security fee for each of his four convictions. At our request, the parties briefed the effect of our opinion in People v. Chavez (2007) 149 Cal.App.4th 1340 on the fines imposed in this case. We order appellant's custody credit total to be corrected and a security fee to be added to appellant's fines, as set forth in more detail in the disposition. The judgment of conviction is affirmed in all other respects.
Facts
About 9:00 a.m. on November 7, 2005, Alejandro V., 16, and Armando O., 14, were walking on Columbus Avenue near Sepulveda Middle School. Appellant drove alongside them in a car. Appellant's passenger, Curtis Early, asked, "Where you guys from?" The boys did not respond. Early then said, "Well, this is D.S.M." Appellant said, "Columbus." Appellant and Early then started making gang signs. Appellant formed a "C" with his hand, the symbol for the Columbus Street gang. One or both of the men said "Fuck Langdon.'" The boys walked away.
Appellant's car approached the boys a second time. Early yelled, "This is D.M.S. and Columbus, homey. We be blasting." Early brandished an object that Alejandro believed was a gun. Both men said, "bang, bang, bang." The boys ran away. They intended to go to a nearby doughnut shop.
The boys met Armando's friend Julio T. The three boys walked together along Plummer Street. As Alejandro and Armando were telling Julio what had just happened, appellant drove up to the boys and stopped. Early said "What's up fool?" and got out of the car. He asked Julio, "Where you from?" Julio did not respond. Early pulled out a knife and asked Julio "What, you think you hard, homey?" Early pushed Julio in the chest. Early said "Bitch ass fool," and got back into the car. Early and appellant drove away. The men yelled "D.M.S." and "Columbus."
The boys went to the doughnut shop. They were detained by police for suspected truancy. The boys told police of their encounter with appellant and Early.
That afternoon, police stopped appellant's car. Early was a passenger. Officer Yvonne Miranda spoke with both men. Appellant admitted that he was from the Columbus Street gang. No weapons were found in the car.
Officer John Macchiarella went to appellant's house on December 31, 2005. Early was there. Appellant admitted that he had driven the car and that Early had been his passenger. Appellant said they came across some suspected Langdon Street gang members, he stopped the car and Early got out and punched one of the boys. Appellant admitted that he was a member of the Columbus Street gang.
Officer Mark Wilbur testified at trial as a gang expert. He explained that the question "Where you from?" was a challenge. He also explained that the incident in this case occurred just outside of the established territory of the Columbus Street gang. Columbus Street was in a long-standing, violent feud with Langdon Street over the area where the incident occurred. Officer Wilbur also testified that Columbus Street gang members committed shootings, drug sales, and other crimes and had recently been convicted of murder and possession of a firearm. Officer Wilbur opined that appellant's and Early's acts on November 7 were committed for the benefit of the gang.
The prosecution offered evidence that about a month before the incident in this case, appellant drove by a group of students near Monroe High School. A passenger yelled "Where the fuck are you from, ese?" The passenger jumped out of the car. School police came to the scene and detained appellant.
Discussion
1. Sufficiency of the evidence – Aiding and abetting
Appellant contends that there is insufficient evidence that he had the specific intent to aid and abet Early in the commission of the battery or the criminal threats. Specifically, he claims that there is no evidence that he knew that Early intended to make threats or get out of the car and punch someone. He further contends that such a conviction violates his federal constitutional right to due process of law.
In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's 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." (People v. Stanley (1995) 10 Cal.4th 764, 792-793, internal quotation marks and citations omitted.)
When a specific intent crime such as making criminal threats is alleged, an aider and abettor must share the specific intent of the perpetrator. An aider and abettor shares the specific intent of the perpetrator "when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 560.) When a general intent crime such as battery is alleged, the aider and abettor need only knowingly and intentionally assist the perpetrator. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.)
"There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the [crime], including the defendant's actions. [Citation.]" (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) "'Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.' [Citation.]" (People v. Campbell (1994) 25 Cal.App.4th 402, 409-410.)
Of course, mere presence at the scene of the crime, or a mere failure to interfere in the commission of a crime, is not sufficient to show aiding and abetting. (People v. Campbell, supra, 25 Cal.App.4th at pp. 409-410.)
We see sufficient evidence that appellant knew of Early's specific intent to make criminal threats and intended to assist him, and also knowingly and intentionally assisted him in the battery. The two men acted together in their encounter with the boys, and appellant did not display surprise or fear at any of Early's actions. Appellant supported Early in each step of Early's escalating conduct. In the first encounter with the boys, Early made a gang challenge to the boys and appellant supported him by saying the name of their gang. Appellant and Early believed that the boys were members of a rival gang, and such a challenge is a form of a threat in gang culture. The boys walked away, and appellant drove the car after them. Early then made his criminal threats, and appellant supported him by saying the name of their gang. The boys ran away, and appellant again drove after them, stopping when he was next to them. Early got out of the car and again made a criminal threat. Appellant did not drive away. Early brandished a knife. Appellant still did not drive away. Early punched Julio. Appellant waited for Early to get back in the car. When appellant then drove off with Early, he joined him in shouting their gang names.
Such concerted action reasonably implies a common purpose. (See People v. Campbell, supra, 25 Cal.App.4th at p. 408 [defendant's acts of walking by victims with perpetrator, returning to victims with perpetrator, and stopping in front of victims with perpetrator was concerted action which reasonably implies a common purpose; defendant did not reveal any surprise or fear when perpetrator pulled gun on victims and so the jury could reasonably assume that he stopped in front of victims to facilitate the crime].)
"If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation] as is the due process clause of article I, section 15, of the California Constitution." (People v. Osband (1996) 13 Cal.4th 622, 690.) That is the case here.
2. Sufficiency of the evidence – Criminal threats
Appellant contends that there is insufficient evidence to support his count 4 conviction for making a criminal threat against Julio T.
Section 422 provides in pertinent part: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety" is guilty of a crime.
When a statement is ambiguous, the circumstances surrounding the statement may be considered to give it context. (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.) These circumstances include the defendant's history, "mannerisms, affect, and actions involved in making the threat as well as subsequent actions taken by the defendant." (People v. Solis (2001) 90 Cal.App.4th 1002, 1013-1014.) Although nonverbal conduct alone is insufficient, a combination of words and gestures may constitute a criminal threat. (People v. Franz (2001) 88 Cal.App.4th 1426, 1442-1446 [combination of "shushing" sound and a throat slashing gesture made to witness while police were investigating call was sufficient to constitute a threat to inflict bodily injury or death under section 422 if witness talked to police].)
Appellant contends that the only statement made to Julio was "What's up Homey? You think you're hard?" He contends that this statement was too ambiguous and unspecific to convey a gravity of purpose.
Appellant understates the evidence against him. There was also evidence that Early said, "D.M.S.," "Fuck Langdon Street," and "where you from." Early also called Torres a "bitch ass fool." Further, Early displayed a knife while making some of these statements. There was also testimony by a gang expert that D.M.S. was a violent gang, Langdon was a rival of D.M.S., gang members have a practice of threatening and intimidating rival gang members, and the question "Where you from?" was a gang challenge, not a casual inquiry.
Considering the context of Early's statements, a jury could reasonably infer that Early intended to threaten Julio with great bodily injury or death if he gave the wrong answer to the challenge or other questions, showed a lack of respect for D.M.S. or remained in D.M.S. territory.
Appellant further contends that there is no evidence that Julio was in a state of sustained fear. Julio did not testify at trial.
Alejandro testified that Julio was silent, and that he believed the silence was due to fear. This is evidence that Julio was in fear. "Sustained" means a period of time beyond that which is momentary, fleeting or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Julio was aware that appellant and Early had threatened Alejandro and Armando twice before, breaking off each encounter, then returning to escalate the confrontation. Julio did not stay in the area after the threat, but walked away with the two boys. This creates a reasonable inference that he remained in fear of Early and appellant returning. This is sufficient to show sustained fear.
3. CALCRIM No. 372
Appellant contends that the trial court erred in instructing the jury pursuant to CALCRIM No. 372 that flight by a defendant may show awareness of guilt, because there was no evidence of flight. We see no error.
Respondent contends that appellant has waived this claim by failing to object in the trial court. We review this instruction pursuant to section 1259 to determine if the instruction affected appellant's substantial rights. (People v. Hillhouse (2002) 27 Cal.4th 469, 505-506.)
CALCRIM No. 372 provides: "If the defendant fled (immediately after the crime was committed), that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
An instruction on flight is proper whenever evidence of a defendant's departure from the crime scene reasonably permits an inference that his movement was motivated by guilty knowledge. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
Here, appellant waited in the driver's seat with the passenger door open while Early got out. Appellant kept one hand on the steering wheel. This shows preparation to leave quickly after Early ended his confrontation. Early in fact got back in the car after punching Julio and appellant drove off. This time, unlike the first two encounters, appellant did not follow the boys or seek them out. He apparently left the area. This is sufficient evidence of flight to support the instruction. A reasonable jury could have inferred that appellant left the scene to avoid being further observed or arrested. (People v. Jackson (1996) 13 Cal.4th 1164, 1226.)
Appellant's reliance on People v. Clem (1980) 104 Cal.App.3d 337 and People v. Watson (1977) 75 Cal.App.3d 384 is misplaced. In both cases, there was no evidence that the defendant left the scene immediately upon completion of his crimes. In Clem, the victim, who was attacked in her car, drove away when the defendant got out of the car. Thus, it was she who "fled" the scene, not the defendant. There was no evidence showing what the defendant did after the victim left. (People v. Clem, supra, 104 Cal.App.3d at p. 344) In Watson, the victim was murdered and there were no witnesses to the defendant's activities after the murder. As the court explained, the mere fact of defendant's arrest nearly two days later and miles away from the crime scene is not evidence of flight. (People v. Watson, supra, 75 Cal.App.3d at p. 403.)
4. Prison term enhancements
Appellant contends that he did not specifically admit all the elements of the prior prison term allegations, and so they must be stricken. We do not agree.
A sentence enhancement under section 667.5, subdivision (b) requires proof that the defendant "(1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." (People v. Tenner (1993) 6 Cal.4th 559, 563.)
Appellant claims that the following exchange constituted only an admission of the fact of the prior conviction, and not the remaining elements of the enhancement. The prosecutor asked, "Mr. Portillo, to the allegation in [this case,] PA054077, that you suffered a conviction, a felony conviction on October 14th, 2004, in the county of Los Angeles, in case PA049385, to the charge of violating Health and Safety Code section 11339, do you admit that allegation?" Appellant answered, "Yes." The prosecutor then asked, "And to the allegation that on February 14th of 2005, in the county of Los Angeles, you were convicted in case PA050465, for violating Penal Code section 12020, do you admit the allegation?" Appellant answered, "Yes."
This exchange occurred after the prosecutor advised appellant of his Boykin/Tahl rights and received waivers of those rights.
Appellant relies on People v. Epperson (1985) 168 Cal.App.3d 856 to support his claim. Appellant is correct that the court in Epperson held that a valid admission of a prior prison term allegation required that a defendant specifically admit serving the prior prison term and failure to remain free of convictions, in addition to the conviction itself. (Id. at pp. 863-864.) More recently, however, our Supreme Court has pointed out that a review of the entire record "shed[s] light on defendant's understanding" in cases involving admissions of prior prison term enhancements. (People v. Mosby (2004) 33 Cal.4th 353, 364-365.) Thus, Mosby replaced the per se rule in Epperson with a totality of the circumstances test.
Here, a review of the entire record shows that appellant was advised of the elements of a section 667.5 enhancement allegation and knowingly admitted the truth of those allegations. The amended information specifically alleged the elements of the section 667.5 allegations. Appellant was arraigned on those allegations. The court began the admissions process by stating that appellant had "some one-year prison allegations alleged" against him. The prosecutor referred to convictions pursuant to section 667.5, as alleged in the information, in discussing the admissions. The prosecutor then referred back to "those allegations" when advising appellant of his Boykin/Tahl rights and obtaining waivers of those rights. The prosecutor also advised appellant that the "allegations can be used to add more time to the felony case you're in trial on now." Appellant stated that he understood that. Appellant's trial counsel joined in the admissions. Thus, the trial court properly imposed the 667.5 enhancement.
5. Custody credits
Appellant contends that he was entitled to 466 days of actual custody credit and the trial court erred in awarding him only 465 such days. Respondent acknowledges that appellant spent 466 days in custody, but contends that this court should not correct the credit award because appellant did not first make a motion for correction in the trial court.
As we have explained previously, when, as here, there are appellate issues other than incorrect custody credits, requiring a motion in the trial court is not an economical expenditure of public funds. (People v. Acosta (1996) 48 Cal.App.4th 411, 428.) That is particularly true when, as here, the error in calculation is not disputed. Accordingly, we order the correction on this appeal.
6. Court security fees
In April 2007, we asked the parties to discuss the effect of our opinion in People v. Chavez, supra, 149 Cal.App.4th 1340 on the fines imposed in this case. Chavez considers the effects of section 1465.7 and Government Code section 70372 on fines imposed in criminal cases. On August 15, 2007, the California Supreme Court granted review in Chavez, S153920. On October 5, 2007, the Governor approved Senate Bill No. 425 which was enacted to clarify that the state construction penalty is not to be imposed on restitution fines. Section 22 of that bill states that it was enacted in part to "construe and clarify the meaning and effect of existing law and to reject the interpretation given to the law in People v. Chavez (2007) 150 Cal.App.4th 1288."
Senate Bill No. 425 operates retroactively. (People v. McCoy (2007) 156 Cal.App.4th 1246 [68 Cal.Rptr.3d at p. 141]; People v. Estrada (1965) 63 Cal.3d 740, 748.) Further, a defendant generally is entitled to benefit from statutory amendments that become effective during his appeal. (People v. Vieira (2005) 35 Cal.4th 264, 305.) Accordingly, we conclude that Government Code section 70372 has no application to appellant's restitution or parole revocation fines.
In our modification to Chavez, we held that the section 1465.7, subdivision (a) surcharge did not apply to or parole revocation fines.
7. Court security fees
The trial court imposed one $20 court security fee pursuant to section 1465.8, subdivision (a)(1). Respondent contends, and we agree, that the trial court should have imposed a $20 court security fee for each of appellant's four convictions. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) An unauthorized sentence may be corrected at any time. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) Accordingly, we order the fee imposed.
Disposition
The judgment is ordered corrected to show that appellant has 466 days of actual credit and 698 total days of presentence credit. The judgment is ordered modified to impose one $20 court security fee pursuant to section 1465.8, subdivision (a)(1) on each of appellant's four convictions. The judgment is affirmed in all other respects. The clerk
of the superior court is instructed to prepare an amended abstract of judgment reflecting these changes and to deliver a copy to the Department of Corrections and Rehabilitation.
We concur: TURNER, P. J., MOSK, J.