Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from judgments of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. NA067792, Joan Comparet-Cassani, Judge.
Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant George Ruiz.
Alan C. Stern and Ronnie Duberstein, under appointment by the Court of Appeal, for Defendant and Appellant Robert Lindberg.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Susan Sullivan Pithey and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendants George Ruiz (Ruiz) and Robert Lindberg (Lindberg) appeal from judgments of conviction entered after a jury trial. Ruiz was convicted of carjacking, a violation of Penal Code section 215, subdivision (a), as charged in count l, and assault with a deadly weapon, a violation of section 245, subdivision (a)(1), as charged in count 2. The jury also found true the allegations that Ruiz personally used a deadly weapon in the commission of the carjacking (§ 12022, subd. (b)(1)) and committed both offenses to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)).
All further statutory references are to the Penal Code.
Lindberg was convicted of carjacking in count 1, and of simple assault, a violation of section 240 and a lesser included charge of assault with a deadly weapon, in count 2. The jury also found both offenses were committed to benefit a criminal street gang (§ 186.22, subds. (b)(1)(C), (d)). Lindberg admitted one prior conviction of a serious or violent felony (§§ 667, subds. (b)-(i), 1170.12) and one prior conviction for which he served a prison term (§ 667.5, subd. (b)).
Ruiz was sentenced to 16 years in state prison. He was given the mid-term of five years as to count l, an additional ten years for the gang enhancement and one year for the use enhancement. On count 2, he was sentenced to the mid-term of three years, which was stayed pursuant to section 654.
Lindberg was sentenced to 29 years in state prison. He was sentenced to the upper term of nine years as to count 1, which was doubled as a second strike to 18 years. He was sentenced to an additional ten years for the gang enhancement and one year for the prior prison term. Lindberg was also given a mid-term sentence of three years on count 2, and a consecutive ten-year sentence for the gang enhancement on that count, with the whole sentence to run concurrent to the sentence imposed on count 1.
On appeal, both defendants contend that there was insufficient evidence to support the gang enhancement findings. Lindberg also contends that the upper term sentence on count 1 violated his constitutional rights, he was incorrectly sentenced to a 10-year concurrent term for the gang enhancement attached to count 2, and the use of a prior juvenile adjudication to double his sentence under the Three Strikes Law violated his federal constitutional rights to due process and a jury trial. We agree that the sentence for the gang enhancement as to count 2 was incorrect and order the matter remanded to the trial court to select an appropriate sentence on the gang enhancement. In all other aspects, we affirm the judgments.
FACTS
A. Prosecution
On the afternoon of October 15, 2005, Wilmer Moreno (Wilmer) and his brother, Ebraham Moreno (Ebraham), were in Wilmer’s car in the vicinity of 14th Street and Grand Avenue in San Pedro. Wilmer observed two men in front of his house. They asked for a ride, and Wilmer stopped since he had previously seen one of the men. He agreed to give them a ride, and the men got in the back seat.
After Wilmer drove for about five or six blocks, the men told Wilmer to stop. He pulled over and felt something dig into his neck. He grabbed what turned out to be a barbecue fork, pulled it out of his neck and threw it out of the car. The fork had gone into his neck to a depth of approximately two and a half inches.
Wilmer had been stabbed by the man who was seated behind him. The man seated behind Ebraham hit Ebraham in the face. Wilmer stopped the car, and he and Ebraham exited the vehicle. The two men got into the front seat and took off in the car. The driver said “Rancho” as he drove away. The driver was the man who had stabbed Wilmer.
Adrian Acosta, a police officer for Los Angeles Police Department, rode in the ambulance while Wilmer was transported to the hospital. Wilmer said he “knew the first suspect that stabbed him in the neck. He knew him by Ruiz” and that “he was from the Ranch,” a term for the Rancho San Pedro gang. Wilmer indicated he “would be able to identify both suspects.”
Fernando Rivas, a Gang Enforcement Officer for Los Angeles Police Department, interviewed Wilmer. Wilmer advised Officer Rivas that “when the two individuals fled in his vehicle, they yelled out Rancho, RSP.” RSP stands for “Rancho San Pedro, a street gang in RSP.” According to Officer Rivas, Wilmer indicated that “both” individuals had yelled out this slogan and used their hands to throw out gang signs while yelling out “Rancho RSP” when they fled in his vehicle.
At trial, Wilmer denied telling Officer Rivas that both men yelled out “Rancho RSP” and threw out gang signs. Wilmer testified that Ruiz was the only person who said “Rancho” as the men drove away.
Wilmer stated that the man who hit Ebraham used to date a woman named Michelle, who lived on Second Street. Neighbors told Officer Rivas that Michelle used to date Lindberg.
Four days after the incident, Wilmer was shown a photographic line-up. He picked out Ruiz as the man who had stabbed him and Lindberg as the person who had hit Ebraham. At trial, however, Wilmer could not identify either defendant as being involved in the incident.
Wilmer testified that he did not want to testify in court. Ebraham did not testify.
Officer Rivas is familiar with the Rancho San Pedro gang. The primary activities of the gang range from vandalism to murder, including shootings, robberies and carjackings. The hat for the Pittsburgh Pirates baseball team is a gang symbol; the “P” on the hat stands for Pedro, for Rancho San Pedro gang. Another symbol is a tattoo “SP,” that signifies San Pedro. A subset of the Rancho San Pedro gang is “SC,” which stands for Santa Cruz.
Officer Rivas is familiar with Ruiz from prior contacts and is of the opinion that he is a member of the Rancho San Pedro gang. Officer Rivas had stopped Ruiz before in gang locations with other gang members and knows that Ruiz has “Ranchos” tattooed on his chest and “157 percent Rancho” on the back of his neck. During a prior contact, Ruiz told Officer Rivas that he was a gang member.
Officer Rivas is also familiar with Lindberg from prior contact. He knew that Lindberg “also has gang tattoos. He has an S on the right arm, a P on the left arm which stands for San Pedro. He also has an H. I believe it’s his right shoulder, and an A on his left shoulder which stands for Harbor area.” Lindberg had been previously stopped with another documented Rancho San Pedro gang member.
Officer Rivas was presented with a hypothetical question as to whether a crime like the one that occurred in the instant case would be for the benefit of a criminal street gang. He was of the opinion that the crime was carried out for the benefit of the street gang.
B. Defense
Clayton Hollowpeter (Hollowpeter), administrator and executive director of the Boys and Girls Club of San Gabriel Valley, testified as a gang expert. He was “vaguely familiar” with the Rancho San Pedro gang.
According to Hollowpeter, the fact that someone is “hanging out” with a known gang member “doesn’t necessarily mean” that the person is a gang member. Hollowpeter also noted that if a person had an S on one arm and a P on the other, it could signify a geographical identity.
Based on a hypothetical presented to him like the one presented to Officer Rivas, Hollowpeter opined that the crimes were not committed for the benefit of a criminal street gang. He indicated that he would need to see some indication that the crime was done for the gang, or that the gang derived some benefit from the crimes such as the “car was taken and sold and the resources were shared among the other gang members” before he would be able to render an opinion that the crimes were gang related. He also opined that intimidation is “more of a criminal activity and not limited to gang.” In his opinion, “most gang members don’t intimidate.”
DISCUSSION
A. Sufficiency of Evidence to Support the Gang Enhancements
In reviewing the sufficiency of the evidence, the question on appeal is whether there is evidence from which a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) “In making this determination, we ‘“must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence.”’ [Citation.]” (People v. Rayford (1994) 9 Cal.4th 1, 23; accord, People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
To subject a defendant to the consequences of section 186.22, “the prosecution must prove that the crime for which the defendant was convicted had been ‘committed for the benefit of, at the direction of, or in association with any criminal street gang, [and] with the specific intent to promote, further, or assist in any criminal conduct by gang members.’” (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) Ruiz and Lindberg contend that there was insufficient evidence that they committed the instant crimes for the benefit of the Rancho San Pedro gang. We disagree.
Defendants argue the fact that Wilmer’s car was recovered approximately three hours after it was stolen and only a few blocks from where it was taken negates the gang enhancement finding of the jury. Officer Rivas testified that it is a common practice of the Rancho San Pedro gang to carjack a vehicle and then use it in another offense to decrease the chance of identification. The fact that Wilmer’s car was recovered in close proximity to where it was taken and a short time after it was stolen does not mean that it was not taken or used for that purpose. This fact thus does not mandate a reversal of the gang enhancement allegation.
Ruiz challenges the sufficiency of the evidence that the “primary activities” of the Rancho San Pedro gang consisted of the commission of the specified criminal acts. We disagree. The testimony of Officer Rivas was clear that he had personal contacts with gang members, he had been familiar with the Rancho San Pedro gang for approximately two and one-half years, and he had investigated and assisted in the investigation of “crimes all the way from vandalism up to murder and everything in between.” The prosecution also offered as evidence the convictions of gang members Sonny Mitchell, for manslaughter, and Anthony Viegas, for assault with a firearm.
Under section 186.22, a “criminal street gang” is an organization which has as one of its primary activities the commission of specified criminal acts, and whose members have engaged in a pattern of criminal gang activity. (Id., subd. (f).) The commission of two or more of the predicate criminal acts by gang members constitutes a pattern of criminal gang activity. (Id., subd. (e); People v. Loeun (1997) 17 Cal.4th 1, 10.)
Ruiz’ reliance on In re Nathaniel C. (1991) 228 Cal.App.3d 990 is misplaced. In that case, the gang enhancement was reversed because the prosecution offered evidence of only one prior incident and failed to show that the primary activity of the gang was any offense listed in the statute. That was not the case here.
Additionally, the evidence is undisputed that at least one of the defendants yelled out “Rancho” as he was fleeing. According to Officer Rivas, Wilmer stated that both defendants yelled out “Rancho, RSP, a street gang in RSP” and flashed gang signs, a fact Wilmer denied at trial. There thus is substantial evidence to support the finding that Ruiz and Lindberg committed the crimes for the benefit of, at the direction of, or in association with the Rancho San Pedro gang.
While Ruiz and Lindberg complain about the jury’s decision on credibility, that argument is not to be considered on appeal. (People v. Maury (2003) 30 Cal.4th 342, 403.) The jury had evidence that Wilmer may have been reluctant to testify at trial. He picked out Ruiz and Lindberg from six-pack lineups and told Officer Acosta, shortly after the stabbing, that it was Ruiz, who had done it. Wilmer did not want to testify at trial and did not identify either defendant. The jury evidently decided the credibility issue concerning Wilmer’s testimony in favor of Officers Rivas and Acosta. The fact that the defense expert reached the opposite conclusion about the crime being for the benefit of the gang is also a credibility issue and not one to be resolved on appeal.
Finally, Officer Rivas was familiar with Ruiz and Lindberg and was of the opinion that they were members of Rancho San Pedro gang. Officer Rivas had been familiar with the Rancho San Pedro gang for approximately two and a half years. He had conducted “hundreds of interviews” with those gang members. At trial, both defendants were ordered to take off their shirts and approach the jury box, so the jurors could see defendants’ tattoos for themselves. Officer Rivas’ opinion that the crime was carried out in the furtherance of the Rancho San Pedro street gang was based on his experience, his knowledge of the lifestyle of the gang, and the fact that Rancho San Pedro gang members commonly steal vehicles to commit other crimes. He further noted that the commission of such crimes also creates fear and intimidation in the community, because community members do not want to step forward and prosecute crimes. No more was required. (People v. Maury, supra, 30 Cal.4th at p. 396.)
B. Upper Term Sentencing of Lindberg
Lindberg contends that the imposition of the upper term sentence on count 1 violated Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] and the Sixth Amendment. We disagree.
The California Supreme Court recently held in People v. Black (2007) 41 Cal.4th 799 at page 813 that to the extent there is at least one proper recidivist factor on which the trial court could rely, a defendant is eligible to receive the upper term sentence, and imposition of that sentence does not violate his Sixth Amendment right to a jury trial. In the instant case, prior to imposing the upper term on Lindberg’s sentence on count 1, the trial court noted: “As I stated, the victim was particularly vulnerable. He was doing a good deed and was repaid with that with being stabbed and having his car taken from him as well. [¶] In addition, the defendant has a criminal history dating back to when he was 16. He has been in prison. He’s had numerous convictions. He was out, I believe, for 10 days when this offense was committed . . . . So he has a history of violence and a history of continuous criminal activity dating back to the time he was 16. And according to the date of birth I have, he’s 25 years old.” The trial court stated: “For the aggravating reasons I’ve stated on count 1, the 215(A), I sentence the defendant to the high term of nine years in state prison. The reasons I’ve chosen the high term was because of the particularly cruel nature of the attack.”
The trial court rested its decision, either wholly or partially, based upon its conclusion that the attack by Ruiz on victim Wilmer was vicious and cruel. The trial court found that Lindberg was an aider and abettor. While the trial court did say that the high term was imposed because of the vicious cruel nature of the attack, it also noted Lindberg’s prior criminal history and parole status. These are recidivist factors justifying imposition of the upper term sentence as well. (People v. Black, supra, 41 Cal.4th at pp. 818-820; People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) Defendant’s upper term sentence consequently is constitutional. (Black, supra, at p. 813.)
C. Sentencing on the Gang Enhancement on Count 2
Lindberg contends that the sentencing on the gang enhancement on count 2 was incorrect, and the People agree.
Lindberg was convicted on count 2 of simple assault, a lesser offense of assault with a deadly weapon. The proper enhancement statute was section 186.22, subdivision (d), for a conviction of simple assault. The correct penalty is either an additional one year in the county jail, or an additional one, two, or three years in the state prison. The ten year concurrent term imposed for the gang enhancement therefore was incorrect.
The relevant portion of section 186.22, subdivision (d) provides as follows: “Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is 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 be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years . . . .” Simple assault is punishable as either a felony or a misdemeanor.
D. Use of Prior Juvenile Adjudication Under Three Strikes Law
Lindberg contends that the use of his prior juvenile adjudication to double his sentence as a second strike violated his federal constitutional rights to due process and a jury trial. We disagree.
Specifically, Lindberg contends that because “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490), doubling his sentence based on a juvenile adjudication violated his right to a jury trial and due process of law. Lindberg acknowledges that this contention has been rejected by the courts but disagrees with the analysis of those decisions. We decline his invitation to decide this issue to the contrary and agree with the analysis of those cases holding that “‘a prior juvenile adjudication may constitutionally be used as a “strike” despite the fact that there is no right to a jury trial in juvenile proceedings.’ ([People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817,] 834[, review den. Mar. 3, 2004].)” (People v. Buchanan (2006) 143 Cal.App.4th 139, 149, review den. Dec. 13, 2006.)
This issue is before the Supreme Court in People v. Tu (2007) 154 Cal.App.4th 735, review granted December 12, 2007, S156995.
DISPOSITION
The 10-year enhancement imposed on Lindberg’s sentence on count 2 is vacated and the matter is remanded to the trial court with directions to sentence Lindberg to an appropriate concurrent sentence on the gang enhancement as to count 2. In all other respects, the judgments are affirmed.
We concur: VOGEL, Acting P. J., ROTHSCHILD, J.