Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF146231, J. Richard Couzens, Judge. (Retired judge of the Placer Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Teresa Torreblanca, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I
All statutory references are to the Penal Code unless stated otherwise.
Defendant Adam Joseph Romero and three other codefendants took Danielle Lafaye’s leased Mazda for several days without her permission.
The codefendants are not parties to this appeal.
A jury convicted defendant of three gang-related crimes: count 6, vehicle theft, committed for the benefit of a criminal street gang (Veh. Code, § 10851, subd. (a) and Pen. Code, § 1866.22, subd. (b)); count 7, witness intimidation, also committed for the benefit of a criminal street gang (§§ 136.1, subd. (a)(1), 1866.22, subd. (b)); and count 9, active participation in a criminal street gang. (§ 186.22, subd. (a).) Defendant also admitted that he had served a prior prison term and committed the offenses in the present case while out on bail. (§§ 667.5, subd. (b), 12022.1.)
The trial court sentenced defendant to an indeterminate prison term of seven years to life, plus a determinate prison term of six years.
On appeal, defendant challenges the sufficiency of the gang evidence. We deem the gang evidence to be substantial and affirm the judgment.
II
FACTUAL BACKGROUND
A. Vehicle Theft and Witness Intimidation
The underlying facts of the offenses are largely undisputed.
Danielle Lafaye (Lafaye) testified that, in October 2008, she occupied a room in a Riverside apartment rented by Richard Whittington (Whittington). Many Hispanic men with shaved heads frequented the apartment. Illegal drug use was common in the apartment. Lafaye was also using illegal drugs during that time in her life and she knew defendant by the nickname “Mitey, ” later identified as defendant’s gang moniker.
Lafaye had leased a Mazda automobile. One afternoon while she was napping in the apartment, her car was taken without her consent. Shawn Barnes, an acquaintance of Whittington’s, told Lafaye that Whittington had taken the car and would return it. When Whittington’s parole officer came by, Lafaye told him she thought Whittington had stolen her car.
When the car had not been returned, Lafaye made several phone calls, threatening to report that the car had been stolen to the police. A day or so later, Whittington returned to the apartment, driving a white truck, followed by the Mazda, driven by a Hispanic man with a shaved head, with another Hispanic man as a passenger. When the truck and the car stopped in front of the apartment, Whittington ran inside briefly. He assured Lafaye she would get her car back but he left immediately in the truck with the Mazda following him again.
Lafaye called the 911 emergency dispatcher to report her car had been stolen by Whittington and two “Mexicans, ” one of whom she called “Weasel, ” later identified as codefendant Gilbert Hernandez (Hernandez).
Right afterwards, defendant called Lafaye on her cell phone and claimed he had purchased the car from Whittington. When she responded that she had reported the car as stolen, defendant threatened to blow up the car or the apartment and she would “be taken care of.” As a result, she was frightened and afraid to cooperate with the police.
Later that night, Whittington returned to the apartment and talked to Lafaye. After Whittington left, Weasel drove by in Lafaye’s Mazda and pointed a gun at her. Lafaye called 911 again to report her car had been stolen by Whittington and Weasel and the men were brandishing guns at her. Lafaye was fearful that she would be shot by defendants. At trial, Lafaye identified Hernandez as Weasel and defendant as Mitey from photographs. She believed both men had gang affiliations.
The Riverside police recovered the Mazda when they went to a Howard Johnson’s hotel in Norco and contacted defendant, another codefendant, Desirae Marie Flores, and another woman. Defendant had possession of the keys to Lafaye’s Mazda. Defendant told the police he had driven Lafaye’s Mazda. He admitted being acquainted with codefendant Hernandez.
In the Mazda, the police found blank checks, a computer, a computer printer, and DMV paperwork. When the car was returned to Lafaye, it contained printers, computers, a check-making device, clothing, and other items.
B. Gang Evidence
Michael Riley (Riley), an expert gang investigator, testified that he was familiar with a Hispanic turf gang, Corona Varrio Locos or Corona Vatos Locos (CVL). CVL’s general territory is in Corona, not Norco. Gang-related crime can occur extraterritorially.
The primary criminal activities of the CVL gang are assaults, weapons possession, car theft, and witness intimidation, all committed to benefit the gang. Symbols or signs for CVL are Corona, Fourth Street, Cora, Crown Town, a crown, and four dots on the knuckles of the fingers. Gang members may or may not display tattoos. Defendant did not have tattoos.
In October 2008, there were over 200 CVL gang members in the Corona area. Within the gang are subgroups or cliques with their own names, colors, symbols, and jackets. The Bandidos clique had five members. Riley testified about the criminal gang history of three members of the Bandidos clique, Ricardo Serrato (Serrato), Francisco Cisneros Arreola (Arreola), and defendant.
Serrato was convicted in July 2004 of being a felon in possession of a firearm with a gang enhancement. Serrato was a Bandidos gang member. Arreola was convicted in June 2007 of being a felon in possession of a firearm with a gang enhancement. Arreola was an active Bandidos gang member.
Defendant had previously been convicted in July 2003 of vehicle theft with a gang enhancement. Defendant’s moniker, or nickname, was “Little Mitey, ” “Mitey 2, ” or “Mitey II.” Defendant’s brother, Anthony Romero, known as “Mitey 1, ” was present at the trial and was also an active CVL member. Defendant had claimed CVL membership or association. Defendant had previously acknowledged gang association in 1997, 2000, 2003, 2005, 2008 when he was contacted in the company of other CVL gang members. Defendant’s moniker, Mitey 2, appeared in Bandidos gang graffiti documented in November 2001.
In Riley’s opinion, defendant was an active CVL gang member and a member of the Bandidos clique in October 2008. The crime of vehicle theft benefits a gang because it helps the gang commit other crimes anonymously. Witness intimidation also facilitates a gang’s criminal activities.
The parties stipulated that Barrio—or Varrio—Norwalk was a criminal street gang within the meaning of section 186.22. Barrio Norwalk was often allied with CVL. Codefendant Hernandez was an active member of the Barrio Norwalk gang. He had also pleaded guilty to a crime with a gang enhancement.
Defendant’s gang expert, Enrique Tira, testified that defendant was no longer an active gang member in October 2008 and his crimes were not committed for the benefit of a gang.
C. Defendant’s Testimony
Defendant was 27 years old at the time of trial. Defendant was familiar with the CVL gang because he grew up in Corona and knew gang members. His older brother was in the Bandidos clique. Defendant’s nickname is “Little Mitey.” His brother is Mitey.
In the past, defendant had admitted gang association to police officers when they stopped him in the company of a Bandidos gang member. But at trial he denied having been an official member. He acknowledged pleading guilty to a crime with a gang enhancement when he was 18 or 19. He did not have tattoos.
Defendant served two years in prison for the gang crime and was paroled in March 2005 and worked in the family construction business. After some financial and marital difficulties, he moved back to Corona in 2008 and began using and selling methamphetamine.
At a Cinco de Mayo festival in May 2008, defendant was contacted by the police when he was in the company of Anwar Dawud (Dawud), another Bandidos member.
In October 2008, defendant sold drugs to Lafaye when she lived in Whittington’s apartment. Whittington told defendant he could use the Mazda in exchange for drugs. Defendant thought it was Whittington’s car until Whittington told defendant Lafaye had reported the car was stolen. Defendant then called Lafaye to tell her she could retrieve the car from the Norco hotel. Defendant said nothing about having purchased the car. He explained he did not threaten Lafaye. Defendant said he did not know about Hernandez driving by Lafaye and pointing a gun at her. When the police arrested defendant at the Norco hotel, he had the Mazda keys clipped to his belt.
III
ANALYSIS
A. Participation in a Criminal Street Gang
Defendant challenges the sufficiency of the evidence for his conviction for participation in a criminal street gang under section 186.22, subdivision (a): “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, ...”
Defendant concedes he was a CVL gang member before 2005 but he denies he was still a gang member in October 2008. Defendant contends that the only evidence of gang association between 2005 and October 2008 was his attendance in May 2008 at a Cinco de Mayo festival with the CVL gang member, Dawud.
Substantial evidence in the record, viewed in the light most favorable to the jury’s verdict, amply supports defendant’s conviction. (People v. Williams (2009) 170 Cal.App.4th 587, 626 [Fourth Dist., Div. Two], citing People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.) Here, defendant admitted he was a member of CVL before 2005. Although defendant testified he was no longer a gang member after he was paroled in 2005, the gang expert, Riley, testified that defendant was still an active member in October 2008.
Riley based his opinion partly on defendant’s numerous instances of gang associations between 1997 and 2005. In November 2001, both defendant and his brother were identified in Bandidos gang graffiti. In 2003, defendant pleaded guilty to vehicle theft with a gang enhancement.
Additionally, defendant attended the 2008 Cinco de Mayo festival with Dawud, a gang member. Riley concluded defendant’s presence showed he was still a gang member associating with other gang members. Although defendant’s attendance at the Cinco de Mayo festival with a Bandidos gang member could be interpreted benignly, the jury did not have to accept defendant’s characterization of that evidence: “As the court observed in People v. Martinez, ‘the sufficiency of the evidence showing active participation is not altered by the existence of other evidence offered by defendant to show he was not an active participant in the gang. Resolution of conflicting evidence and credibility issues was for the jury to decide. [Citation.] It is clear from the verdict finding defendant guilty of street terrorism that the jury believed he was actively participating in the gang. Because substantial evidence supports this determination, “‘that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ (People v. Martinez, supra, 158 Cal.App.4th at p. 1331.)” (People v. Williams, supra, 170 Cal.App.4th at 626.)
More evidence of defendant’s gang participation was demonstrated in his postarrest interview with Riley when defendant refused to deny unequivocally his gang membership. Riley found no evidence defendant had taken steps to disassociate himself from the gang. Furthermore, Riley determined the subject crimes were committed when defendant was acting in concert with Hernandez, a member of Barrio Norwalk, affiliated with CVL.
Taken altogether the evidence reasonably supported a jury finding of defendant’s active participation in the CVL gang.
B. Crimes Committed for the Benefit of a Criminal Street Gang
To support the criminal street gang enhancements for vehicle theft and witness intimidation, “‘[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. Martinez (2004) 116 Cal.App.4th 753, 762....” (People v. Ochoa (2009) 179 Cal.App.4th 650, 657 cited in People v. Albillar (2010) 51 Cal.4th 47, 62, 67.)
The evidence in this case supported that the theft of the Mazda was committed by defendant, a CVL gang member, acting in concert with Hernandez, a Barrio Norwalk gang member. Defendant drove the Mazda and had possession of the keys when he was arrested. He called Lafaye and threatened her if she reported the car had been stolen. Hernandez also threatened her by pointing a gun at her. The crimes of car theft and witness intimidation were signature crimes of the CVL gang. Additionally, the crimes were apparently committed to facilitate additional crimes involving check or DMV fraud. The evidence supported Riley’s expert opinion that the two crimes were committed by defendant for the benefit of the CVL gang acting together with the Barrio Norwalk gang.
In Ochoa, this court reversed the true findings on a gang enhancement. But the evidence in Ochoa was not substantial since it involved one person committing armed robbery at a fast-food restaurant, indicating no gang involvement. Here, defendant acted with another gang member to commit crimes for the benefit of the CVL and Barrio Norwalk gangs. Their joint participation, combined with the expert testimony, constituted substantial evidence supporting the true findings on the gang enhancements: “[T]he jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members.” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198; People v. Albillar, supra, 51 Cal.4th at p. 62, citing People v. Ochoa, supra, 179 Cal.App.4th at p. 661, fn. 7; People v. Leon (2008) 161 Cal.App.4th 149, 162-163.)
In Albillar, where the crimes were committed in concert by gang members, the California Supreme Court referred twice to Ochoa, concerning general principles of law: “We therefore find substantial evidence that defendants came together as gang members to attack Amanda M. and, thus, that they committed these crimes in association with the gang.” (People v. Albillar, supra, 51 Cal.4th at p. 62, citing People v. Ochoa, supra, 179 Cal.App.4th at p. 661, fn. 7.)
“A similar analysis disposes of the related argument, advanced by all three defendants, that section 186.22(b)(1) requires the specific intent to promote, further, or assist a gang-related crime. The enhancement already requires proof that the defendant commit a gang-related crime in the first prong—i.e., that the defendant be convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang. (People v. Gardeley [(1996) 14 Cal.4th 605, ] 621-622.) There is no further 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.” (People v. Albillar, supra, 51 Cal.4th at p. 67, citing People v. Ochoa, supra, 179 Cal.App.4th at p. 661, fn. 6.)
The present case is factually more similar to Albillar—because it involves gang members committing crimes together—rather than to Ochoa—which involved a single defendant committing a crime alone. Albillar does not contradict Ochoa. Both cases support our conclusions herein. Here there was ample evidence that defendant was an active member of a street gang when the Mazda was taken.
IV
DISPOSITION
The gang-related evidence was sufficient to support the gang enhancements on counts 6 and 7 and defendant’s conviction for gang participation on count 9. We affirm the judgment.
We concur: Ramirez P.J., Miller J.