Summary
In People v. Rosel (Jan. 26, 2012, G044481) [nonpub. opn.], we reversed the gang enhancement for a lack of substantial evidence and affirmed the judgment in all other respects.
Summary of this case from People v. RoselOpinion
G044481
01-26-2012
THE PEOPLE, Plaintiff and Respondent, v. MAURILLO IVAN ROSEL, JR., Defendant and Appellant.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 07NF2702)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed in part and reversed in part.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Maurillo Ivan Rosel, Jr., guilty of second degree robbery, and found it to be true he personally used a firearm during its commission. The jury also returned a true finding that defendant committed the robbery for the benefit of, at the direction of, or in association with the Orange County Pelones criminal street gang, with the specific intent to promote, further or assist criminal conduct by gang members, pursuant to Penal Code section 186.22, subdivision (b)(1). (All further statutory references are to the Penal Code.) The court sentenced defendant to serve 22 years in state prison.
Defendant's only issue on appeal is his claim that substantial evidence does not support the jury's true finding under section 186.22, subdivision (b)(1). We agree that it does not and reverse that true finding. In all other respects, we affirm the judgment.
I
FACTS
The Crime
On July 25, 2007 at around 8:15 a.m., Jesus Garcia was walking to work along Mitchell Avenue in Tustin when a car stopped next to him and "the person got out of the car with a hand gun, pistol in his hand, and he threatened" Garcia. Garcia testified: "He asked me to give him everything." Garcia gave him all the money he had, "close to a hundred dollars." The person also demanded Garcia's cell phone and he handed that over too. Garcia said he was able to see "there was a driver and the person who robbed me." The robber appeared to be 18 or 19 years old, wore a white shirt, dark pants, a dark cap and white tennis shoes.
After the vehicle drove off, Garcia turned around and observed the car, which he described to the police. Later the same day, Garcia spotted the car again. During trial, Garcia identified defendant as the person who robbed him.
Investigation
By using satellite technology, the police located Garcia's cell phone at a residence on West 11th Street in Santa Ana. A team of five undercover officers went to conduct surveillance at that location. A vehicle matching the description given by Garcia, and registered to Adelina Rosel, was spotted in the driveway.
Adelina Rosel granted police permission to look inside the house. Defendant was inside wearing only boxer shorts, standing within six feet of a pile of clothes, consisting of jeans, a white T-shirt and a pair of white tennis shoes. While inside, police dialed Garcia's cell phone number and heard the phone ring. Garcia was brought to the scene for a field identification.
Gang Expert
The gang expert testified defendant was an active participant of the Orange County Pelones on July 25, 2007, which was a criminal street gang on the day of this crime. He described the gang's history: "It started back around 1997. It was a group of kids playing handball at El Camino. It started out just as a partying crew. It was in another gang's neighborhood which is OBC, which stands [for] Orange Barrio Cypress, and through the years from 2000-2001 it developed into a gang where you could start seeing the graffiti, the colors they wear which is orange/black, primarily. [¶] You will see the weapons charges, stolen vehicles, the common gang crimes and then there is a pattern from about 2000 all the way up to the day of this crime July 25th of '07 where they have a pattern of criminal activity." The expert said the gang's primary activities are "felony robbery, felony stolen vehicles, as — as well as felony vandalism."
In August 2002, defendant was contacted about assaulting someone at school. He admitted the assault and called the victim a snitch. In October 2003, defendant shot a BB gun at his older brother while dressed in gang attire. He had six different documented police contacts in 2004, including one where he admitted stealing a vehicle. At that time, he had a shaved head; the expert explained the significance of a shaved head within gangs. In 2005, defendant also had six different police contacts, and during one was arrested while in possession of a deadly weapon, a shaved down screwdriver. During 2005, defendant self-identified as a member of Orange Pelones with the moniker Droopy. During 2006, defendant was engaged in a gang fight while in custody.
In 2007, defendant again identified himself as a member of the Orange Pelones, and was issued a STEP notice. The expert said a STEP notice put individuals on notice that their gang commits crimes.
In March 2007, defendant told the police he was an acquaintance of the Pelones gang. The expert explained what that means: "Basically it's someone from, as I described before, someone who is part of the gang and actively committing crime that benefit the gang to further their reputation and respect level." As of that date, he said his moniker was Junior. When asked about a gang member having multiple monikers, the expert said: "Once police have identified a moniker of a certain member of a gang, it's very easy for us to continue seeing graffiti or crimes committed by that person. So by having multiple monikers, it's just another way for them to go in disguise by law enforcement."
As the prosecutor's questions came closer in time to the instant crime, the prosecutor asked the expert: "So is it all of that background together with the crime that we are going to talk about in a moment stemming from the July 25, 2007, robbery, is it all of that background that has contributed to your opinion that Mr. Rosel is, in fact, an active member of the Orange County Pelones on the date of the robbery?" The expert answered "yes."
The next area of questioning was about 31 pages of photographs of graffiti on walls, benches and various places in Santa Ana taken by Santa Ana Public Works and Graffiti Removal Project from May 1 to August 31, 2007. The expert said the graffiti was "a way for them to express that they are a gang, that this is their neighborhood, that even once the graffiti is cleaned up that they won't stop there. They want to continue to notify everyone this is a gang, this is our neighborhood and if you want to come through here, you need to understand that basically."
With regard to the instant crime in particular, the prosecutor asked the expert a hypothetical question which mirrored the facts here and requested the expert to "tell us how this kind of conduct conducted by a documented Orange County Pelones criminal street gang member, how does that kind of conduct that is involved in the robbery case benefit the Orange County Pelones criminal street gang, if it does?"
The expert responded: "As I stated, the key to a lot of the gangs is respect, and the way they perceive gaining respect is through violence. One of the most violent crimes you can commit is an armed robbery. So in this case, as I stated earlier, generally they don't want to commit these robberies by themselves because they can't really vouch that they've completed this type of crime. [¶] So this was a crime that he did this with other people with them actively seeing him commit this crime. There were items taken that could later be sold or used to benefit the gang or used as profit for the gang. [¶] A crime like this furthers the gang's reputation because now they can tell other people, 'I committed this armed robbery, I went to another area, I did take these items.' And when he goes into custody, people will be aware of what he has done. He has committed an armed robbery with a gun and therefore he gains more respect for the gang and benefits the gang because he is doing this while an active participant of the gang and he is getting more respect for himself in the gang by committing this violent crime." He added that a crime mirrored on the instant crime benefits the gang because "in a robbery there are items that can be taken that can be used as profit for the gang or used to further the gang's ability to purchase weapons or things of that nature. [¶] A crime like this, once it's found out in custody, other gangs that are in custody will now hear about this. It could create intimidation or fear with other gangs, therefore furthering the gang's name and giving them respect from other gangs."
The prosecutor questioned the expert about the significance of a gang's name not being "yelled out" here, and the expert stated: "It is done and on occasion generally that's where we can further their gang name, but also a way where they can reveal who is doing this crime. So it's taking a chance both ways by saying the gang name. [¶] Now, police have a route to take as far as identifying the suspect. When a robbery occurs and there is no gang given, no moniker given, it's more difficult for law enforcement or anyone to figure who committed that crime. Although it is said for some gang crimes, it's not always mentioned in a gang crime to shout out the name of the gang."
On cross-examination, the gang expert testified no gang graffiti was left in the immediate area of the crime, there were no words spoken during the crime to indicate the crime was being committed by a Pelones gang member, no neighbors in the area said they were aware of the crime, the victim was not a rival gang member, there is no evidence the crime was an act of retaliation, the driver of the vehicle was never identified, there was no evidence the gun used by defendant in this crime was ever used in any other crime, no witnesses to the crime were found, there is no evidence any other member of the Pelones gang was involved in this crime, and police were not able to determine whether any of the proceeds from this robbery were funneled off to other gang members.
The expert did say on cross-examination, however that he spoke with someone named Enrique Ramirez in August 2008 who was "from Tustin who had Orange County Pelones tattooed on his chest had heard about the crime that Mr. Rosel had committed" which indicated to the expert that Ramirez was "letting me know that he is from Orange County Pelones and someone from his gang was willing enough to go and commit a street robbery and, you know, be proud of it basically." The prosecutor had no redirect examination of the expert.
II
DISCUSSION
Sufficiency of Evidence
Defendant contends the evidence is insufficient to support the finding the robbery was committed for the benefit of that gang. The Attorney General argues there is sufficient evidence to support the gang allegation because "the gang expert testified in this case, the absence of gang signs and tattoos being displayed, or mentioning gang affiliation, would not indicate the crime was not gang related" and that the expert said "the benefit resulting from the committing an armed robbery would be to enhance [defendant's] reputation as a Orange County Pelones gang member as well as his gang's reputation and create fear in the community. There was evidence that other members of the Orange County Pelones gang were aware of the crime committed by [defendant]." The Attorney General also cites evidence that a few hours after the robbery, defendant was a passenger in another vehicle driven by his brother, and that his brother was in possession of a gun similar to the one Garcia described.
"[A]ny person who 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: (A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion. [¶] (B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years. [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years." (§ 186.22, subd. (b)(1).)
"[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he 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. Johnson (1980) 26 Cal.3d 557, 578.) The standard is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.)
"In general, where a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are 'sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' [Citation.]" (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) Testimony about the culture, habits, size, composition, or existence of a gang, gang turf or territory, an individual's membership or association with a gang, the primary activities of a gang, motivation for a particular crime, such as retaliation or intimidation, and whether and how a crime was committed to benefit or promote a gang are all proper subjects for a gang expert. (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657.)
"A gang expert's testimony alone is insufficient to find an offense gang related. [Citation.]" (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.) A gang enhancement will not be upheld when "[t]here is nothing inherent in the facts of the [crime] to suggest any specific gang motive." (People v. Albarran (2007) 149 Cal.App.4th 214, 227, fn. omitted.)
Here there is evidence of the following: defendant robbed Garcia; at least one other unidentified person was in the car used in the robbery; defendant was a member of the Pelones gang when he committed the robbery; defendant was in another car being driven by another gang member a few hours after the robbery; 13 months after the instant robbery, someone with the gang's named tattooed on his chest told the police he was aware of the robbery.
There is expert evidence that crimes such as robbery benefit a gang, but there was no evidence that in this particular case the gang was benefited. Of course, there was the expert's testimony that 13 months later someone who was likely also a Pelones member said he knew about the crime, but no questions were asked regarding how that information was put forth to the police. Was that person an undercover informant? Was that person trying to make a favorable deal for himself with regard to some other crime? Or, was that person bragging about the crimes of another gang member? We don't know.
There was also evidence that the loot from this crime was just under $100. But there is no evidence defendant ever contributed all or part of the money to the gang or other gang members.
There is no evidence gang signs or gang bragging took place during this crime. There was no display of tattoos. No neighbors said they were aware of the crime. There was no indication the victim was associated with a rival gang or that retaliation was an issue.
It is clear defendant is a person who commits many crimes and was an active member of a criminal street gang when he committed the instant crime. But under the circumstances of this case, we find there is insufficient evidence to show this particular crime was committed for the benefit of the gang. The gang expert's testimony about how gangs benefit from crime is true in the abstract, but the prosecution failed to provide evidence tying those abstract truths to the facts in this case. Accordingly we conclude substantial evidence does not support the gang enhancement under section 186.22, subdivision (b)(1).
III
DISPOSITION
The true finding under section 186.22, subdivision (b)(1) is reversed. In all other respects, the judgment is affirmed.
MOORE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
O'LEARY, J.