Opinion
H040730
01-23-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE JUAN RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1352450)
A jury convicted defendant Jose Juan Ramirez of possessing a "sap" or similar weapon (Pen. Code, § 22210), carrying a loaded firearm (§ 25850, subd. (a)), and carrying a concealed firearm (§ 25400, subd. (a)(2)). Allegations that he committed each offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)), was not the registered owner of the firearm, and committed the firearm offenses while out of custody on supervised own recognizance (§ 12022.1) were also found true. The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions.
Subsequent statutory references are to the Penal Code unless otherwise specified. References to section 186.22 are to the version of the statute in effect when defendant committed his crimes.
On appeal, defendant challenges the sufficiency of the evidence to support the true findings on the gang enhancements. Specifically, he argues that there was insufficient evidence (1) that the Sureños are "a criminal street gang," (2) that he committed the baseball bat offense "for the benefit of, at the direction of, or in association with" a criminal street gang and (3) "with the specific intent to promote, further, or assist in any criminal conduct by gang members," and (4) that he committed the firearm offenses "for the benefit of, at the direction of, or in association with" a criminal street gang and (5) "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b).) Defendant also contends that three of his probation conditions must be modified. We modify the challenged probation conditions but reject defendant's other contentions.
I. Background
A. The Baseball Bat Offense
Anna Toran and her boyfriend Raul Lozano took her dog out around midnight on October 2, 2012. They walked to the end of the block and were returning home when Lozano noticed eight to 10 men advancing. The men looked "pretty threatening." At least four of them were carrying baseball bats. One was carrying something that looked "probably like a bar." Toran and Lozano "made it back to the garage," shut the door, and watched the live feed from their security camera. The men stood in the driveway yelling, "Come out, Pussy, and things like that." One said, "It's our hood." A man who looked like he was about to break the window of Toran's son's car said, "This is your last warning." Toran believed the men were Sureños. The neighborhood is claimed by Sureños. Lozano is a Nuestra Familia prison gang dropout and a former member of the Varrio Lomas Locos subset of the Norteño criminal street gang. People in the neighborhood who know him are "pretty much" hostile, and the couple has had problems before. Toran called 911.
San Jose police officers responded to Toran's call about a disturbance involving gang members with baseball bats. Officer Mark Alvarez drove to an apartment building at Almaden Avenue and Sutter Road because Toran said the suspected gang members came from there. Toran also reported that the men got into a small silver car. Alvarez spotted a silver car parked in front of the apartment building and turned on his emergency flashers. As he got out of his patrol car, one of the men in the silver car fled on foot. Two other men remained in the car. Defendant was in the driver's seat. He was wearing a blue shirt and carrying a wallet with the fleur de lis logo of the New Orleans Saints on it. The other man was wearing a black and yellow Saints jersey. He identified himself as "Jose Martinez." The prosecution's gang expert later testified that "Jose Martinez" was in fact Jorge or George Olivera, an admitted member of the Sur Santos Pride (SSP) subset of the Sureño street gang. The logo and clothing of the New Orleans Saints are associated with the SSP subset of the Sureño gang because the word "santos" means "saints" in Spanish.
Alvarez detained defendant and Olivera and searched the silver car. He found a large knife and a replica firearm under the driver's seat and a baseball bat and Saints items in the back seat. Alvarez knew by training and experience that gang members use baseball bats as weapons.
Defendant and Olivera were arrested. Toran and Lozano separately viewed photo lineups. Each identified defendant as one of the men carrying bats and as "the one who made the actual threat" that night. Lozano identified photos of the silver car. Defendant was charged with felony possession of a "sap" or similar weapon (§ 22210) with a gang allegation (§ 186.22, subd. (b)(1)(A)) and released on supervised own recognizance.
B. The Firearm Offenses
San Jose Police Officer Anthony Kilmer was assigned to the gang suppression unit in March of 2013 and Officers Adam Plares and Timothy Faye were assigned to the metro unit. They were in the area of Almaden Road and Oak Street in the late afternoon on March 14 to follow up on a shooting involving suspected SSP gang members. The shooting occurred four days earlier on Oak Street. As Kilmer drove his unmarked patrol car down the alleyway behind Mike's Pizza, he noticed three people walking away from him toward Oak Street. The three "picked up the pace a little bit" and two of them glanced back. The third, later identified as defendant, did not. Kilmer found it "concerning" and "a bit suspicious" that he could not see defendant's hands. Plares and Faye got out of the patrol car and followed the group on foot. Defendant "quickly walked away" from the other two, who were later identified as Diane Urias and Julian C. (Julian). Plares and Faye followed defendant, noting that he appeared to be "holding his right side near his waistband or his pocket area." Defendant entered Mike's Pizza and his two companions and Plares followed. Plares sent Julian and Urias outside to talk to Kilmer, who had parked his patrol car in front. Kilmer recognized Julian as a Sureño associate. Neither Julian nor Urias was arrested that afternoon.
Plares saw defendant come out of the pizza shop bathroom. Faye checked the bathroom and saw a gun in the garbage can. Defendant denied leaving it there. Kilmer retrieved the gun and a black glove from the garbage can. The gun was loaded.
Kilmer arrested defendant and took possession of a blue beanie and a cell phone that displayed the fleur de lis logo of the New Orleans Saints on its home screen. Kilmer took defendant to the Santa Clara County Jail for booking. He heard defendant tell the intake deputy that he was a Sureño.
Defendant was charged with carrying a loaded and concealed firearm (§§ 25850, subd. (a), 25400, subd. (a)(2)) and it was also specifically alleged that he committed each offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)), was not the registered owner of the firearm, and committed the firearm offenses while out of custody on supervised own recognizance (§ 12022.1, subd. (g)).
C. Trial
Kilmer, Plares, and Faye testified at trial about what occurred that March 14 afternoon. Toran, Lozano, and Alvarez described the baseball bat incident.
San Jose Police Detective Steven Payne testified as the prosecution's expert on criminal street gangs. Payne had more than 200 hours of post-academy gang training and had recently coordinated the department's "gang investigators' academy." He is a member of the South Bay Gang Alliance and the California Gang Investigators Association. He spent his first five years on the force on patrol in areas of San Jose specifically known for gang activity. During that assignment, he contacted "well over 100 gang members" a week, sometimes in connection with arrests and other times not. Some gang members refused to talk to him but others told him "all about their gang," including the gang's clothing, tattoos, rivalries, and territories. Payne also "worked a school resource job . . . primarily [o]n the east side of San Jose [in] schools that have a lot of gang activity." On those assignments, he talked to "a lot of gang members" and to their friends, families, teachers, and school administrators. Payne had also worked as a gang resource officer on the gang suppression detail. He joined the gang investigations unit in 2011. As a gang investigator, he continued to have conversations with gang members.
Payne described the organization, symbols, culture, and activities of Hispanic street gangs in San Jose. He explained that the Mexican Mafia is the predominant prison gang in California. When Sureño street gang members go to jail or to prison, "they will fall under the authority and the influence of the Mexican Mafia, so their allegiance and their respect is to the Mexican Mafia." "[T]hey show that by wearing the color blue [and] displaying the number 13 through tattoos or graffiti. It's a way for the Sureños not only to identify themselves "but to identify themselves as loyal to the Mexican Mafia." Payne added that "[i]n recent years they don't want to be targeted by law enforcement so they have "scale[d] back the amounts of blue clothing . . . ."
There are "pockets" of Sureños in San Jose but the Norteño gang is the dominant gang. There are more Norteños than Sureños in San Jose. Norteños identify with the color red and the number 14. They are loyal to the Nuestra Familia prison gang. The Nuestra Familia and Mexican Mafia prison gangs are rivals "and because of their allegiances the street gangs have to their higher prison gang[s], they adopt the same rivalry."
On the streets, "you're going to have the general Norteño gang . . . that's influenced by the Nuestra Familia." Some gang members "just consider themselves general Norteños" but "you're [also] going to have your subset[s], which are smaller groups that are usually divided by neighborhood." "Same thing with . . . Sureños." "You're going to have your general Sureño gang, which is influenced by the Mexican Mafia. Beneath that umbrella, within that umbrella, you're going to have your smaller subset[s] which claim different neighborhoods." "One important thing to know," Payne emphasized, "is, you can be a general Sureño or general Northerno [sic] gang member claiming you're a Northerno [sic] gang member or Sureño gang member and not be a member of a subset, but you can't be a member of a Norteño subset and not be a Norteño gang member. That's just the higher allegiance. Same thing with Sureños. I'm not going to be a member of S.S.P. or Sur Santos Pride and not be a Sureño."
Payne described the importance of violence in the gang culture. "Violence . . . enhances their reputation or street credibility as gangsters" and instills a "sense of fear among neighbors and communities." Violence is also "a way to control rivals, manipulate them through fear and intimidation. The more violent they are, the more people are afraid. . . . The more people are afraid of them, the less likely people are going to interfere in their businesses." "In the gang culture, respect is synonymous with fear." Respect is earned by "putting in work and backing up the gang." Gang members are expected to back up other gang members. "If you have a weapon, you're expected to use that weapon if the situation calls for it. [You're] expected to confront rivals and protect the integrity of your gang territory by keeping them out." "Weapons provide benefit." "A gangster with a gun is a lot scarier than a gangster without . . . one."
Payne testified that he was familiar with the Sureño criminal street gang in San Jose. He had personally investigated cases where the suspects, witnesses, or victims were Sureño gang members, and he had also assisted other officers in their investigations. He had contacted both active and former Sureños on the street in consensual as well as custodial settings. Crimes committed by Sureño gang members in cases Payne worked on included attempted murder, robbery, criminal threats, possession of illegal weapons, and felony vandalism.
Payne opined that the Sureño gang is a criminal street gang within the meaning of section 186.22, subdivision (f). The Sureño gang's primary activities include attempted murder, robbery, assault with a deadly weapon, drive-by shootings, possession of illegal weapons, vandalism, and making criminal threats. Payne described three predicate crimes: an April 2012 conviction of Sureño gang member Tony Ramirez for carrying a concealed firearm, a November 2011 conviction of Sureño gang member Edgar Loya for assault with a deadly weapon, and a September 2011 conviction of Sureño gang member Sergio Rueda for making criminal threats. On cross-examination, Payne testified that Tony Ramirez and Loya were members of the Varrio Locos Trece subset of the Sureño gang and that Rueda was a member of the Kollmar Vagos Trece subset. Payne had no information that defendant, a member of the SSP subset, knew Tony Ramirez, Loya, or Rueda. Certified court records establishing the convictions were admitted into evidence.
Payne opined that defendant was an active participant in the Sureño criminal street gang on October 2, 2012. Payne was familiar with the facts of the baseball bat incident because he was the investigating officer. He based his opinion on those facts, noting that defendant was contacted in a "known Sureño gang area, parked in front of probably . . . the most popular address in that S.S.P. neighborhood . . . ." Defendant was with "at least one other documented Sureño gang member or S.S.P. gang member," Olivera, who was wearing gang clothing and admitted his Sureño gang membership to officers at the scene. Defendant was wearing a blue shirt and was in possession of gang indicia.
Payne also considered defendant's prior contacts with law enforcement. In May 2011, defendant was contacted in a Sureño gang area with Olivera and two other Sureño gang members. In October 2011, defendant was stopped in a Sureño gang neighborhood with three Sureño gang members whom Payne personally knew "from prior contacts and arrest situations." Payne also considered a June 2012 contact where defendant was "posted up in front of a known Sureño crash pad" and an October 2012 contact with defendant and "another gang member."
Payne testified that defendant's possession of the bat benefitted the Sureño gang in many ways. First, it enhanced the gang's ability to commit crimes. "If you have a baseball bat, you can commit a robbery more effectively than if you just have your bare hands. If you want to intimidate a witness, you can probably do that a lot more effectively with a baseball bat . . . so it's a benefit to have that bat." Second, "[i]t's a benefit to have that weapon for defense against rivals to protect your gang territory[,] to protect your fellow gang members, [and to] protect yourself as a gang member." Finally, the fear that any weapon provides means that victims and witnesses to gang crimes are "probably going to be less likely to cooperate with the police, come to court . . . , [or] interfere with gang business."
In response to a hypothetical question that tracked the evidence presented, Payne opined that the crime of possessing the bat was committed with the specific intent to promote, further, or assist in criminal conduct by gang members. He explained that a gang member accepts "certain responsibilities . . . , including carrying weapons and using those weapons when you need to." Gang members "don't just carry a weapon for no reason at all." They carry weapons "to promote the gang, to further the gang, to assist other gang members in crimes. It's an expectation the gang has of them [and] of their members, to use their weapons, to help out their fellow gang members when the situation calls for it whether it be defending against rivals, committing a crime or just making people afraid of them . . . ."
Payne opined that defendant was an active Sureño gang member when he committed the firearm offenses on March 14, 2013. He noted that the facts supporting his opinion were similar to those in the baseball bat case. The two incidents occurred "literally right down the street from each other" in an area claimed by the SSP subset of the Sureño gang. Defendant was with an admitted gang member in known gang territory on both occasions. "The firearm aspect . . . , walking the neighborhood with a loaded firearm," was relevant for the same reasons possession of the bat was relevant—"walking the neighborhood, showing your control of the area, showing your claim to the area . . . ." Defendant was in possession of a blue beanie, "blue being a Sureño gang color." Police also found a New Orleans Saints glove with a fleur de lis on it in defendant's dresser drawer. Payne testified that people cannot carry Saints indicia in SSP neighborhoods or hang out in SSP neighborhoods with SSP gang members unless they are Sureño or SSP affiliated. If they are not, they could be run out of the neighborhood or violently attacked.
Payne testified that defendant's phone contained photos of Sureño gang members who had been arrested in connection with gang related homicides in the McLaughlin Park area of San Jose. The persons in those photos were members of the Varrio Colonias Trece and Varrio Tami Lee Gangsters subsets of the Sureño criminal street gang. One photo was "crossed out" and had "snitch" and "187" (the Penal Code section for murder) written on it. Payne explained that snitching (that is, cooperating with the police and/or informing on the gang) is met with discipline or "DP" by the gang. Discipline is also imposed for not backing up another gang member. Discipline could be anything "from taxing, to a beating, to a stabbing, to murder."
Payne described two additional contacts that defendant had with law enforcement between the bat and firearm offenses. In February 2013, defendant was contacted on the east side of San Jose in an area claimed by the Varrio Virginia Trece subset of the Sureño gang. Defendant was with Christian P., an SSP member, and Alejandro Ceja, a Varrio Virginia Trece gang member. In March 2013, defendant was contacted in the area claimed by SSP. He was in possession of gang indicia and in the company of three "S.S.P. Sureño gang members."
Payne testified that defendant's firearm offenses benefitted the Sureño criminal street gang in the same way the bat offense did. Having a firearm instills fear in people, makes it easier to commit gang-related crimes, and provides a means of self-defense against rivals. Weapons make gang members stronger, and stronger gang members make stronger gangs. Defendant's firearm crimes also benefitted him personally by making him "look like a more dedicated and loyal member, somebody who is committed to the gang, because he is willing to carry a gun and commit a crime in order to benefit the gang."
In response to a hypothetical question that closely tracked the evidence, Payne opined that the firearm crimes were committed with the specific intent to promote, further or assist in criminal conduct by gang members. "[W]hen you become a gang member you accept the responsibility that weapons are a necessity. If you carry a weapon, you have the expectation [that] you're either going to use it to assist other gang members, to further the gang's cause, to protect the territory, [or] to protect . . . fellow gang members."
The defense rested without presenting any evidence. The prosecutor argued in closing that defendant was a gang member controlling his hood, "patrolling as a gang Sureño" in both the baseball bat and firearm incidents for the benefit of the gang. "You heard that deadly weapons in gang territory assist [further] and promotes criminal conduct o[f] gang members and keep rivals in check."
Defendant's trial counsel argued in response that defendant was not a known gang member on October 2, 2012, and that "[f]ive months later in March of 2013, he was still unknown [to] law enforcement . . . ." Counsel scoffed at the idea that the gang would send "a 5'4 107 pound guy to be the leader of a group to issue the final warning, to a Nuestra Family member." He argued that "absolutely . . . zero direct evidence" linked defendant to the gun that police found at Mike's Pizza. Counsel emphasized that defendant lives in the neighborhood where the crimes occurred. He argued that "this case is all about . . . [p]roximity to a gang neighborhood, proximity to gang members, proximity to illegal things. Nothing but proximity."
After deliberating for almost two hours, the jury returned guilty verdicts on all counts and found the enhancement allegations true. The trial court placed defendant on probation. Defendant filed a timely notice of appeal.
II. Discussion
A. Standard of Review
" 'We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. [Citation.]' " (People v. Wilson (2008) 44 Cal.4th 758, 806.) "[W]e 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. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) " 'Reversal is unwarranted unless " 'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " [Citation.]' " (People v. Mendez (2010) 188 Cal.App.4th 47, 56.)
B. Existence of a "Criminal Street Gang"
Defendant contends that the true findings on the gang enhancements must be reversed because the evidence was insufficient to prove the existence of a " 'criminal street gang' . . . ." (§ 186.22, subd. (f).) He concedes that Payne's testimony established most of the elements of the statutory definition, "namely, that the Sureños are an ongoing group with a common name and identifying sign or symbol" whose primary activities include statutorily enumerated crimes. He contends that there was insufficient evidence to establish an associational or organizational connection between the Sureño gang that he allegedly sought to benefit and the subsets whose members committed the predicate crimes. We disagree.
A " 'criminal street gang' " is "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in [the statute], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) A " 'pattern of criminal gang activity' " is "the commission of, attempted commission of, . . . or conviction of two or more [statutorily enumerated] offenses, provided at least one of these offenses occurred after the effective date of this chapter [September 26, 1988] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." (§ 186.22, subds. (e) & (j).) Assault with a deadly weapon, making criminal threats, and carrying a concealed and/or loaded firearm are among the offenses enumerated in the statute. (§ 186.22, subd. (e)(1), (24), (32), (33).) Charged offenses can serve as predicate offenses. (People v. Gardeley (1996) 14 Cal.4th 605, 625, overruled on another ground in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.)
Here, there was evidence of three qualifying predicate offenses committed by Sureño gang members Tony Ramirez, Rueda, and Loya. Loya was a member of the Kollmar Vagos Trece subset of the Sureño gang. Ramirez and Rueda were members of the Varrio Locos Trece subset. Defendant was a member of the SSP subset.
In People v. Prunty (2015) 62 Cal.4th 59 (Prunty), the California Supreme Court addressed "what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets." (Id. at p. 67.) Prunty held that "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Prunty, at pp. 67-68, 71.) "That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization. [¶] Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same 'group' that meets the definition of section 186.22(f)." (Prunty, at pp. 71-72, fns. omitted.) The evidence "must allow the jury to reasonably infer that the 'criminal street gang' the defendant sought to benefit—or which directed or associated with the defendant—included the 'group' that committed the primary activities and predicate offenses." (Id. at p. 76.)
The prosecution has "significant discretion" in how it proves this connection. (Prunty, supra, 62 Cal.4th at p. 67.) The evidence "need not be direct, and it need not show frequent communication or a hierarchical relationship among the members who communicate." (Id. at p. 78.) "But it is not enough . . . that the group simply shares a common name, common identifying symbols, and a common enemy." (Id. at pp. 72, 76.) "Evidence of a common viewpoint also fails to show that subsets have any other relationship that unites them." (Id. at p. 75; see People v. Williams (2008) 167 Cal.App.4th 983, 988.)
The Prunty court provided "illustrative examples" of how a proper showing might be made. (Prunty, supra, 62 Cal.4th at pp. 77-80.) "The most straightforward cases might involve subsets connected through formal ways, such as shared bylaws or organizational arrangements. Evidence could be presented, for instance, that such subsets are part of a loose approximation of a hierarchy." (Id. at p. 77.) "Alternatively, evidence that two seemingly unrelated . . . cliques routinely act to protect the same territory or 'turf' could suggest that they are part of a larger association." (Ibid.) "Even evidence of more informal associations, such as proof that members of two gang subsets 'hang out together' and 'back up each other,' can help demonstrate that the subsets' members have exchanged strategic information or otherwise taken part in the kinds of common activities that imply the existence of a genuinely shared venture." (Id. at p. 78.)
The prosecution's theory in Prunty was that the defendant committed an assault to benefit the Sacramento-area Norteño street gang. (Prunty, supra, 62 Cal.4th at p. 67.) The evidence showed that Prunty identified as a Norteño, claimed membership in a particular Norteño subset, the Detroit Boulevard Norteños, and uttered gang slurs and invoked " 'Norte' " when shooting at a perceived rival gang member. (Id. at p. 67.) "[T]he prosecution's gang expert testified about the Sacramento-area Norteño gang's general existence and origins, its use of shared signs, symbols, colors, and names, its primary activities, and the predicate activities of two local neighborhood subsets," the Varrio Gardenland Norteños and the Varrio Centro Norteños. (Ibid.) "The expert did not, however, offer any specific testimony . . . that these subsets' activities connected them to one another or to the Sacramento Norteño gang in general." (Id. at pp. 67, 69.) The court found the evidence insufficient to support the gang enhancement. (Id. at p. 68.)
The prosecution's theory in this case was similar to the prosecution's theory in Prunty. Its theory here was that defendant committed his crimes to benefit the San Jose- area Sureño street gang. (See Prunty, supra, 62 Cal.4th at p. 67.) Here unlike in Prunty however, there was evidence of an organizational connection between the neighborhood subsets and the larger Sureño group. There was also evidence that the persons who committed the predicate offenses identified not only with their respective subsets but also with the larger Sureño group. (See id., at pp. 67, 69.)
Payne testified about the organization of the Sureño gang. At the top of the hierarchy is the Mexican Mafia prison gang. Beneath that is the "general Sureño gang," which is loyal to and owes its allegiance to the Mexican Mafia. Beneath that are the "smaller subset[s] which claim different neighborhoods." The general Sureño gang is "a little less formal" than the subsets. The subsets are "a little more organized," with established territory and "kind of a packing [sic] order." Not all Sureño gang members belong to a particular subset. But as Payne emphasized, "you can be a general Sureño or general Northerno [sic] gang member claiming you're a Northerno [sic] gang member or Sureño gang member and not be a member of a subset, but you can't be a member of a Norteño subset and not be a Norteño gang member. That's just the higher allegiance. Same thing with Sureños. I'm not going to be a member of S.S.P. or Sur Santos Pride and not be a Sureño." A member of a Sureño subset is necessarily a member of the Sureño gang in San Jose. Payne's testimony thus established that the neighborhood subsets that Tony Ramirez, Loya, Rueda, and defendant belonged to were "part of a loose approximation of a [Sureño gang] hierarchy." (Prunty, supra, 62 Cal.4th at p. 77.) His testimony was sufficient to show the necessary connection between the subsets and the larger Sureño gang in San Jose. (Ibid.)
There was also evidence "that various subset members exhibit[ed] behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization." (Prunty, supra, 62 Cal.4th at p. 71.) Loya was a member of the Varrio Locos Trece subset. But he did not invoke the name of that subset when he committed the predicate assault with a deadly weapon. Instead, he yelled " 'Sur Trece,' " which Payne explained "is a common gang . . . slogan for Sureño." Payne also testified that Loya "had a history of admitting to law enforcement that he was a Sureño gang member." Rueda, who was a member of the Kollmar Vagos Trece gang, likewise "had . . . a history of admitting to law enforcement [that] he was a Sureño gang member." Defendant similarly told the intake deputy at the jail that he was a Sureño.
There was also evidence that members of different San Jose Sureño subsets hung out together. As the Prunty court explained, such "evidence . . . (however formal or informal) will permit the jury to infer that the subsets should be treated as a single street gang." (Prunty, supra, 62 Cal.4th at pp. 78-79.) In February 2013, police contacted defendant in "a Sureño gang area on the east side of San Jose, [in] a completely different part of San Jose than S.S.P." claims. The Varrio Virginia Trece subset claims that area. Defendant was drinking in an alleyway with another SSP gang member and with a Varrio Virginia Trece gang member. "So these were . . . all Sureños, but coming from different subsets." Finally, Kilmer testified that defendant's phone contained news photos of "several suspects . . . who were arrested in connection with gang related homicides in the McLaughlin Park area in San Jose." Kilmer believed those persons "were . . . members . . . of V.T.G. Varrio Tami Lee Gangsters and V.C.T. Varrio Colonias Trece." Both are Sureño subsets. We conclude that the above-described evidence was sufficient to "allow the jury to reasonably infer that the 'criminal street gang' the defendant sought to benefit—or which directed or associated with the defendant—included the 'group' that committed the primary activities and predicate offenses." (Prunty, supra, 62 Cal.4th at p. 76.) Thus, there was sufficient evidence to prove the existence of a "criminal street gang." (§ 186.22, subd. (f).)
C. Gang Enhancement for Baseball Bat Offense
Defendant contends that the gang enhancement on his baseball bat conviction must be stricken because the evidence was insufficient to prove either (1) that he committed the offense "for the benefit of, at the direction of, or in association with" a criminal street gang or (2) that he possessed the bat "with the specific intent to promote, further, or assist in any criminal conduct by gang members." We disagree.
1. "For the benefit of, at the direction of, or in association with"
Section 186.22, subdivision (b)(1) authorizes a sentencing enhancement when a defendant 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. . . ." "Expert opinion that particular criminal conduct benefited a gang . . . can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[ ] criminal street gang' within the meaning of section 186.22(b)(1). [Citations.]" (Albillar, supra, 51 Cal.4th at p. 63.)
Here, there was ample evidence that defendant's possession of the bat was "committed for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22, subd. (b)(1).) The offense occurred in the "known Sureño gang area" where Toran lived with Lozano, a former Norteño street gang member and a Nuestra Familia prison gang dropout. Defendant was in a group of eight to 10 men whom Toran believed were Sureños. The men looked "threatening" as they approached her and Lozano, stood in the driveway wielding baseball bats and something that looked "probably like a bar," and shouted, "It's our hood" and "This is your last chance." There was evidence that defendant was holding a bat that night and that he "was the one that said, this is your last warning." He was wearing a blue shirt and was in possession of gang indicia when he was apprehended moments after the confrontation. He was with Olivera, who was wearing a Saints jersey, had a history of associating with other documented Sureño gang members, and "admitted to . . . officers at the scene that he was a Sureño gang member."
Payne described the rivalry between the Norteño and Sureño street gangs. He explained that possession of weapons benefits the gang in a number of ways. Of particular relevance here is the capability that it provides. Because a baseball bat "can kill people . . . , [i]t's a benefit to have that weapon for defense against rivals to protect your gang territory . . . ." The fear that such a weapon instills is also highly relevant here. Fear benefits the gang "because the more people fear them, the more control they have over them . . . ." Victims and witnesses to gang crimes are "probably going to be less likely to cooperate with the police, come to court . . . , [or] interfere with gang business." Payne testified that "congregating in front of a suspected rival's house with baseball bats" at midnight would hardly go unnoticed, yet to his knowledge, no one but Toran called the police that night. This evidence was sufficient to support the jury's finding that the baseball bat offense was "committed for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22, subd. (b)(1).) The first element of the gang enhancement statute was therefore satisfied.
2. Specific intent
Defendant argues that there was insufficient evidence that he acted with the requisite specific intent. We disagree.
The second element of the gang enhancement statute requires that the offense be committed with "the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).) "[T]he scienter requirement . . . applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Albillar, supra, 51 Cal.4th at pp. 66-67.) "There is no . . . requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." (Id. at p. 67.) There is also " 'no statutory requirement . . . that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing.' " (Id. at p. 66.) " 'There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances . . . .' " (People v. Smith (2005) 37 Cal.4th 733, 741.) " '[I]f substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members.' [Citation.]" (People v. Livingston (2012) 53 Cal.4th 1145, 1171 (Livingston).) But the defendant need not commit the charged felony in concert with other gang members. "[T]he section 186.22(b)(1) gang enhancement may be applied to a lone actor." (People v. Rios (2013) 222 Cal.App.4th 542, 564 (Rios); see People v. Rodriguez (2012) 55 Cal.4th 1125, 1138-1139 (Rodriguez) ["A lone gang member who commits a felony . . . would not be protected from having that felony enhanced by section 186.22(b)(1)."]; see also Rodriguez, at pp. 1140-1140, conc. opn. of Baxter, J.)
The jury could properly have concluded that defendant possessed the bat that night with the required specific intent. Lozano testified that one of the men who followed him and Toran home was carrying something that looked "probably like a bar." That evidence and the lack of any evidence that police found a baseball or a glove when they searched defendant's car undermines any inference that defendant was returning from a late game of baseball with friends. His trial counsel did not argue that he was.
The evidence supported an inference that defendant possessed the bat to instill fear in a perceived rival and in the community at large. Alvarez testified based on his training and experience that gang members use baseball bats as weapons. Payne testified that one of the reasons gang members carry weapons is to instill fear, which keeps rivals in check and deters ordinary citizens from cooperating with the police. That makes it easier for the gang to commit more crimes. The evidence showed that defendant was with a large group of men who stood outside the home of a Nuestra Familia dropout around midnight, holding bats and shouting, "Come out, Pussy" and "This is our hood." Defendant was wearing his gang's colors and was in possession of gang indicia. There was evidence that he was the one who shouted, "This is your last warning." This evidence readily supported an inference that defendant possessed the bat that night to instill fear and demonstrate his gang's control of the neighborhood, which would promote, further, or assist gang members in committing further crimes.
Defendant argues that whether any other member of the group was a gang member is "a mystery" because no one shouted the gang's name. We reject the argument. Defendant and Olivera were wearing Sureño gang clothing and in possession of gang indicia. The crime occurred in a neighborhood claimed by the SSP subset of the Sureño gang. One of the men in the group shouted, "It's our hood." Payne testified that people cannot safely hang out in SSP neighborhoods with SSP gang members unless they are Sureño or SSP affiliated. Payne also testified that gang members are expected to back up other gang members and to confront rivals and protect the integrity of the gang's territory by keeping them out. A rational factfinder could infer from this evidence that all of the men in the driveway that night were Sureño gang members or associates. But even if not all of those present were gang members, both defendant and Olivera admitted that they were Sureños.
Defendant maintains that "[n]o evidence connects Olivera to th[e] confrontation." We disagree. Toran told the 911 operator that the men who stood in the driveway with bats got into a small silver car. Alvarez spotted a small silver car when he responded moments later. Defendant, Olivera, and the third man who fled were in the silver car. Alvarez found a baseball bat in the car with defendant and Olivera. The jury could infer from this evidence that Olivera, an admitted Sureño gang member, participated in the driveway confrontation.
The cases on which defendant relies do not advance his position. Those cases stand for the unremarkable proposition that a gang expert's opinions on specific intent must be adequately supported by facts in the record. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1197-1199 (Frank S.); People v. Ramon (2009) 175 Cal.App.4th 843, 853 (Ramon); Rios, supra, 222 Cal.App.4th at pp. 574-575.) Frank S. was riding his bicycle alone when police stopped him for running a red light. He was in possession of a bindle of methamphetamine, a red bandanna and a knife that he claimed he needed "for protection against 'the Southerners.' " (Frank S., at p. 1195.) Frank listed himself as a Norteño affiliate at the juvenile detention facility. (Ibid.) The gang expert was allowed to testify that Frank possessed the knife to protect himself. She opined that gang members use knives to protect themselves from and to assault rival gang members. (Id. at pp. 1195-1196.) The Court of Appeal held that the expert should not have been permitted to testify "that a specific individual possessed a specific intent." (Id. at p. 1197.) Because there was in the court's view "no evidence other than the expert's . . . improper opinion on the ultimate issue," the true finding on the enhancement allegation was unsupported by substantial evidence. (Id. at p. 1199.)
Frank S. is inapposite here because unlike the expert in that case, Payne did not testify that defendant harbored the requisite specific intent. That issue was left for the jury to decide. Payne's responses to hypothetical questions simply provided the predicates from which the jury could reasonably infer that defendant acted with the requisite specific intent.
In Ramon, the court held that "[t]he facts on which [the gang expert] based his testimony were insufficient to permit him to construct an opinion about Ramon's specific intent . . . ." (Ramon, supra, 175 Cal.App.4th at p. 852.) Ramon was driving a stolen truck in his gang's territory when police stopped him. A fellow gang member was with him, and police found an unregistered firearm under the driver's seat. (Id. at pp. 846-847.) The gang expert testified that the stolen truck and the unregistered firearm could be used to commit gang crimes. (Id. at pp. 847-848.) He opined that possessing a gun and driving a stolen truck in gang territory provided " 'a huge benefit' " to the gang and that the perpetrators of those crimes "must have been acting on behalf of the [gang]." (Id. at pp. 848-849.) The Court of Appeal reversed the true findings on the gang enhancements, holding that this evidence "standing alone" was insufficient to establish Ramon's specific intent. (Id. at p. 851.)
This court reached a similar conclusion in Rios. (Rios, supra, 222 Cal.App.4th at pp. 574-575.) The defendant was driving alone in a stolen car when police stopped him. They found a concealed firearm in the car. (Ibid.) Rios told the booking officer that he was a " 'Northerner associate.' " (Id. at p. 550.) The gang expert testified that vehicle theft and possession of firearms were among the primary activities of the Norteño gang in Salinas. (Id. at p. 551.) He opined that a gang member's possession of a firearm promotes, furthers, or assists felonious conduct by gang members because it " 'boosts their reputation, it boosts the fear in the community.' " (Id. at p. 573.) This court reversed the true findings on the gang enhancements, holding that "where the defendant acts alone, the combination of the charged offense and gang membership alone is insufficient to support an inference on the specific intent element of the gang enhancement." (Id. at pp. 573-574.)
Neither Rios nor Ramon helps defendant here. Here unlike in those cases, there was more than sufficient evidence of defendant's gang membership and mere presence in gang territory with another gang member. We have already chronicled that evidence. Defendant's reliance on Ramon and Rios is misplaced.
Apparently conceding that there were more facts in the baseball bat case to support the specific intent element than there were in Ramon and Rios, defendant argues that each particular fact in this case was not individually sufficient. That may be so, but it does not help defendant. We do not review each fact individually in determining the sufficiency of the evidence. Instead, "we review the entire record . . . ." (Albillar, supra, 51 Cal.4th at p. 60, italics added.) The record contains sufficient evidence to support an inference that defendant possessed the bat with the requisite specific intent. Because there was also sufficient evidence to satisfy the "for the benefit of, at the direction of, or in association with" element of the statute, we reject defendant's contention that the true findings on the gang enhancement attached to his section 22210 conviction must be stricken.
D. Gang Enhancements for Firearm Offenses
Defendant contends that the gang enhancements on his firearm offenses must be stricken because there was insufficient evidence to prove either the "for the benefit of, at the direction of, or in association with" or the specific intent element of the enhancement statute. (Albillar, supra, 51 Cal.4th at p. 60.) We disagree.
1. "For the benefit of, at the direction of, or in association with"
Section 186.22, subdivision (b)(1) authorizes a sentencing enhancement when a defendant 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 . . . ." Defendant contends that there was insufficient evidence that he possessed the gun "in association with any criminal street gang." (§ 186.22, subd. (b)(1), italics added.) We need not address this argument because the first element of the statute is written in the alternative, and we conclude that there was sufficient evidence that defendant possessed the gun "for the benefit of" the Sureño gang. (Ibid.)
Both defendant and Julian were admitted Sureño gang members. Julian also admitted membership in the SSP subset. There was evidence that defendant was also a member of the SSP subset. Among other things, the home screen of his cell phone displayed the fleur de lis logo of the New Orleans Saints. Police encountered defendant, Julian, and a third person in an alleyway behind Mike's Pizza, a recognized Sureño gang gathering spot. They were walking toward Oak Street, where a gang shooting had occurred just four days earlier.
Payne explained the concept of "patrolling." "Patrolling" in gang parlance means "walking the neighborhood, showing your control of the area, showing your claim to the area." Patrolling is one of the ways that gang members keep and maintain their territory. Payne testified that the neighborhood was controlled by the SSP subset of the Sureño gang. He explained that people who live in the neighborhood know that the gang is violent "and they know what they're capable of." For that reason, they are less likely to be witnesses, less likely to testify, and less likely to interfere with the gang's business or violation of the law even if they see it happening in front of them. Rival gangs also know that the gang has a violent reputation and for that reason are less likely to challenge its members or to intrude in their territory. Payne opined that defendant was "walking the neighborhood with a loaded firearm" to show the gang's claim to and control of the area. He explained that having a firearm "in those circumstances" instills fear in people, keeps rivals in check, and makes it easier for the gang to commit crimes. On this evidence, a rational factfinder could conclude that defendant and Julian were patrolling their gang neighborhood on March 14, 2013 "for the benefit of" the gang. (§ 186.22, subd. (b).) Thus, there was sufficient evidence to satisfy the first element of the gang enhancement statute.
2. Specific intent
Defendant contends that there was insufficient evidence that he possessed the firearm with the specific intent "to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) He relies on Rios, Frank S., and Ramon to support his view that the evidence showed "a standard case of weapons possession and not a gang crime." We disagree.
What distinguishes Rios and Frank S. from this case is that here, there was more to support the true findings than defendant's gang membership and mere weapons possession. (Frank S., supra, 141 Cal.App.4th at p. 1199; Rios, supra, 222 Cal.App.4th at pp. 572-574.) What distinguishes this case from Ramon is that there was more than defendant's possession of a firearm in gang territory with a fellow gang member. (Ramon, supra, 175 Cal.App.4th at pp. 846-847.) Here, there was also evidence that a gang shooting had occurred just four days earlier in the immediate area where police contacted defendant and his companions. The jury could infer from the totality of the evidence that defendant had a particular interest that day in protecting his gang's territory and intimidating rivals in order to ensure that his gang could carry on its criminal activities without interference.
We reject defendant's assertion that his concealment of the gun "refutes the notion that he intended to intimidate rivals and civilians." There was testimony that defendant was "grabbing" and/or "holding his right side near his waistband or his pocket area" as he walked with his companions. There was also testimony that the police interpreted this action to mean defendant "might produce a weapon." A rational factfinder could infer that a rival gang member would also recognize or at least strongly suspect from defendant's actions that he was armed, particularly where he and Julian were walking in a "high gang traffic area" claimed by Sureños and wearing the baggy clothing that Kilmer described as the "common fad or trend" among gang members.
The facts of the bat incident provided additional evidence that was not present in the cases on which defendant relies. Here, the jury could consider those facts and infer from the similarities between the two offenses that defendant harbored the same intent in both. (Evid. Code, § 1101, subd. (b).) Payne pointed out the similarities between the two incidents, and the prosecutor argued in closing that defendant was "patrolling as a gang Sureño . . . patrolling in groups on both occasions" and "controlling his hood." "You heard that deadly weapons in gang territory assist [further] and promotes criminal conduct o[f] gang members and keep rivals in check."
Defendant argues that inferring the same intent from such "vastly different incidents makes no sense." He observes that under Evidence Code section 1101, subdivision (b), "the prosecution cannot use prior conduct to prove intent unless the two incidents 'are sufficiently similar to support the inference that the defendant probably harbored the same intent in each instance.' " He raised no such objection in the trial court but we would reject the argument even had he done so. We find the incidents sufficiently similar. They occurred just five months apart, "literally right down the street from each other" in Sureño gang territory. On both occasions, defendant was with at least one other admitted gang member and in possession of gang indicia. On both occasions, he possessed a weapon capable of killing. The bat offense targeted a perceived rival. The firearm offenses occurred just four days after a gang shooting in the area. Given the similarities between the two incidents, the jury could properly conclude that defendant harbored the same intent in both, that is, to demonstrate his gang's control of its territory and thus to promote, further, or assist gang members in committing further crimes. There was sufficient evidence to satisfy the specific intent element of the enhancement statute. Because there was also sufficient evidence to satisfy the "for the benefit of, at the direction of, or in association with" element, we reject defendant's contention that the true findings on the gang enhancement attached to his firearm convictions must be stricken.
E. Probation Conditions
Defendant challenges three probation conditions as unconstitutionally vague. He contends that conditions requiring that he (1) "not possess or use illegal drugs or illegal controlled substances" (condition No. 8); (2) "not possess any item that under the law would be considered a deadly or dangerous weapon" (condition No. 11); and (3) "not possess, wear, or display any clothing or insignia, tattoo, emblem, button, badge, cap, hat . . . or other article of clothing that he/she knows or the Probation Officer informs him/her is evidence of, affiliation with, or membership in a criminal street gang" (condition No. 17) must be modified to include an express requirement that he not knowingly possess the prohibited items. Defendant's concern is that without an express requirement, he could be found in violation of his probation if someone were to bring one of the prohibited items into his house or car without his knowledge. The Attorney General agrees that the conditions "may" be modified to include express knowledge requirements. As the California Supreme Court is currently considering the issue and the Attorney General does not object, we will modify the challenged conditions. (People v. Rodriguez (2013) 222 Cal.App.4th 578.)
People v. Hall (2015) 236 Cal.App.4th 1124, review granted September 9, 2015, S227193. --------
III. Disposition
The order of probation is modified as follows:
Condition No. 8 is modified to state that "[t]he defendant shall not knowingly possess or use illegal drugs or illegal controlled substances . . . ."
Condition No. 11 is modified to state that "[t]he defendant shall not knowingly possess any item that under the law would be considered a deadly or dangerous weapon . . . ."
Condition No. 17 is modified to state that "[t]he defendant shall not knowingly possess, wear, or display any clothing or insignia, tattoo, emblem, button, badge, cap, hat, scarf, bandana, jacket, or other article of clothing that he/she knows or the Probation Officer informs him/her is evidence of affiliation with, or membership in, a criminal street gang."
As modified, the order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Bamattre-Manoukian, Acting P. J. /s/_________
Grover, J.