Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF130050, Gary L. Paden, Judge.
Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Gomes, J., and Dawson, J.
A jury convicted appellant Chava Seechan of individual counts of attempted murder (Pen. Code, §§ 187, 664; count 1) and shooting at an occupied motor vehicle (§ 246; count 2), two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 3, 7) and three counts of second degree robbery (§§ 211, 212, subd. (c); counts 4-6). The jury also found true enhancement allegations of the following: appellant committed each offense at the direction of, or in association with, a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (b)); in committing the count 5 and 6 offenses he personally used a firearm, within the meaning of subdivision (b) of section 12022.53; in committing the count 1, 3 and 7 offenses he personally used a firearm within the meaning of subdivision (a)(1) of section 12022.5; and in committing the count 1 and 5 offenses, he intentionally discharged a firearm (§ 12022.53, subd. (c)).
All statutory references are to the Penal Code.
We refer to subdivision (b) of section 186.22 as section 186.22(b) except when referring to further subparts of that subdivision, and we refer to the section 186.22(b) enhancement as the gang enhancement.
The court imposed an indeterminate sentence of 35 years to life on count 1, with the determinate portion consisting of 15 years on the gang enhancement (§§ 186.22, subd. (b)(5), 3046, subd. (a)(2)) plus 20 years on the firearm use enhancement, to be served after the completion of a 45-year determinate sentence consisting of the following: on count 5, the three-year midterm on the substantive offense plus 20 years on the firearm use enhancement and 10 years on the gang enhancement, for a total of 33 years; on the count 4 robbery, one year on the substantive offense, representing one-third of the midterm for that offense, plus three years four months on the gang enhancement, representing one-third of the ten-year term for that enhancement (§ 186.22, subd. (b)(1)(C)), for a total of four years four months; and on the count 6 robbery, also one year, plus three years four months for the firearm use enhancement, representing one-third of the 10-year term for that enhancement, for a total of seven years eight months. The court stayed execution of sentence on the remaining counts pursuant to section 654.
On appeal, appellant contends (1) the evidence was insufficient to support the gang enhancement imposed in association with his count 4 conviction of second degree robbery, and (2) the abstract of judgment setting forth the determinate portion of the sentence to be served before the life sentence imposed on count 1 incorrectly stated a total of 45 years 2 months. We will reverse the true finding on the count 4 gang enhancement, direct the court to issue an amended abstract of judgment and otherwise affirm.
FACTUAL BACKGROUND
The Offenses
Count 4 (Second Degree Robbery)
Parminder Brar testified that at approximately 7:45 p.m. on June 30, 2004 (June 30), he was driving an ice cream truck in Visalia when he saw two persons, a male and a female, in a car, and, standing outside the car, appellant and another male. All four persons were Asian. Appellant was wearing blue jeans.
The portion of our factual statement relating to counts 4 through 7 is taken from Brar’s testimony.
Appellant approached the ice cream truck and ordered four popsicles. The other Asian male who had been standing with appellant outside the car was “standing behind [appellant].” Brar handed the popsicles to appellant and asked for payment. Appellant responded, “I’m not going to pay you,” and asked Brar what he would do if he (appellant) did not pay. Brar said he would call the police, and when he tried to pick up his cell phone, appellant punched him hard in the nose. At that point, Brar was sitting in the driver’s seat of his truck and appellant’s cohort was standing approximately four feet away, “trying to jump and try[ing] to fight with [Brar] too.”
When appellant punched Brar, Brar “just drove [his] truck away.” As he drove, in his rear-view mirror he saw appellant run approximately 10 to 15 feet, chasing after the truck while “trying to find something in his pocket.”
Counts 1 (Attempted Murder), 2 (Shooting at an Occupied Vehicle), 3 (Assault With a Semiautomatic Firearm)
Brar stopped and made another ice cream sale, after which he called the police. Appellant was no longer chasing him at the point, and the family to whom he made the sale said appellant “left already.”
Shortly thereafter, the car Brar had seen earlier pulled up and stopped in front of Brar’s truck. There were a male and a female in the car. The male handed Brar three of the popsicles appellant had taken and said “I’m sorry about that.”
Approximately 15 minutes later, Brar was in his truck, stopped in traffic near the intersection of “Houston and Santa Fe in Visalia,” when he saw appellant on the sidewalk. Appellant put a blue bandanna on his face, walked up to within three to four feet of the front of Brar’s truck, pulled a handgun out of his pocket and “just start[ed] shooting.” Brar ducked and drove away. As he drove, he called the police. Six bullets hit the truck, but none hit Brar.
Counts 5 (Second Degree Robbery), 6 (Second Degree Robbery), 7 (Assault With a Semiautomatic Firearm)
Alfredo Gutierrez testified to the following. He was working as a security guard at the “Valley Gas and Food” store (the store) in Visalia when, at approximately 11:14 p.m. on June 30, appellant and three other Asian youths walked into the store. When appellant’s companions began bothering another customer, Gutierrez ordered them to leave the store, and as he escorted them out, appellant took a 20-pack of beer from the shelf and left the store without paying for it. Outside the store, Gutierrez grabbed the beer and it fell to the ground.
Gutierrez further testified to the following. At some point, Vida Van, another store employee, came out of the store carrying a baseball bat. Appellant and his companions started running and Van gave chase. Van got to within three feet of appellant, at which point, appellant pointed a handgun at him. Van knocked the gun out of appellant’s hand with the bat, and appellant retrieved the gun and pointed it at Gutierrez. Gutierrez backed up and got behind a parked car. Appellant then picked up the beer he had taken from the store, and he and one of his companions “backed off” into the parking lot of a nearby store. Shortly thereafter, Gutierrez saw appellant “messing with something in his hands,” and less than one second later Gutierrez heard two gunshots.
Location of the Offenses
The store is located approximately one-half mile from the intersection of Santa Fe and Houston.
Expert Gang Testimony
City of Visalia Police Officer Luma Fahoun testified to the following. She is assigned to the unit of the Visalia Police Department that “deals with gangs …” The Oriental Troops (OT) is a criminal street gang comprised predominantly of Asian males. They “identify[] with the color blue,” and a common OT tattoo is five dots. The gang’s “primary activities” include robbery and shooting at occupied vehicles.
Officer Fahoun further testified to the following: Appellant has five dots tattooed on his left hand. On multiple occasions, he has admitted being a member of the OT. The area where the June 30 shootings occurred is a “high concentrated area of [OT] gang members.” Two of the persons present with appellant at the June 30 store robbery were OT members.
On direct examination, Officer Fahoun was asked to assume events that were, in essence, identical to those which Brar and Gutierrez testified occurred on June 30. She was then asked if she had an opinion as to whether “these crimes [committed by appellant] were committed for the benefit of, at the direction of, or in association with a criminal street gang, particularly the [OT].”
She responded, “[I]t’s a gang related crime. [The crimes committed at the store (counts 5, 6 and 7) were] obviously in association with the gang because [two gang members were present with appellant]. It’s for the benefit of the gang and … the hypothetical was long but in a nutshell the whole entire synopsis is the same…. [¶] … [I]t’s disrespect to the gang member. I want the ice cream. No. You can’t have the ice cream. No. You’re not [going to] disrespect me. I’m [going to] shoot you. [¶] I want the beer…. [¶] [I]t benefits the gang, … in that the next ice cream truck driver [is going to] give them the ice cream if they’re [OT] gang members with blue rags[] [and] [t]he next clerk, the citizens behind the counters are [going to] back off if they realize there’s [OT] gang members involved because they know they will retaliate.” Such crimes also benefit the OT because people will neither testify against OT members nor “talk[] to the police” about OT activities.
Officer Fahoun explained further: When OT members are “disrespected,” “it’s a guaranteed fact[,] … not a [mere] possibility,” that they will “retaliate” by means of a “violent attack.” OT members want members of society, including “the ice cream truck driver” and “security guard officers,” to fear them, so that OT members can “go about their crimes and not be hindered[.]” OT members believe no “insult” can go “unanswered,” because if gang members did not retaliate against persons who offered resistance to OT criminal activities, such members would not be feared and therefore would be of no use to the gang. Thus, the “[f]ear and intimidation” created in the community by the kind of crimes described in the hypothetical question benefit the OT.
When asked the significance of the instant offenses being committed in OT territory, Officer Fahoun responded that in order for OT members to be feared by other people, it is “especially” important that gang members retaliate when a perceived slight occurs “in their own turf.” The officer also opined that appellant tied a blue bandanna around his face immediately before shooting at Brar not only to conceal his identity, but also to “mak[e] it known” that he was an OT member.
DISCUSSION
Gang Enhancement
As indicated above, gang enhancements were found true in association with each of the seven offenses of which appellant stands convicted. To establish each of the gang enhancements, the prosecution had to prove that the crime associated with the enhancement was (1) “a felony committed for the benefit of, at the direction of, or in association with” a criminal street gang, and (2) that the defendant had “the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22(b)(1).) Appellant contends the evidence was insufficient to establish either of these elements as to the gang enhancement associated with the robbery of Parminder Brar (count 4), and therefore the true finding on that enhancement must be reversed.
The prosecution also had to prove “that the gang (1) [was] an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) [had] as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) include[d] members who either individually or collectively [had] engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period.” (People v. Gardeley (1996) 14 Cal.4th 605, 617, italics omitted.) Appellant does not challenge the sufficiency of evidence as to these elements, and thus implicitly concedes the sufficiency of the evidence supporting them.
We review the sufficiency of the evidence to support an enhancement using the same substantial evidence standard we apply to a conviction. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.) In addressing a challenge to the sufficiency of the evidence supporting a conviction, the appellate court must determine “‘whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) In making this determination, “[the appellate court] must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
“By definition, ‘substantial evidence’ requires evidence and not mere speculation. In any given case, one ‘may speculate about any number of scenarios that may have occurred …. A reasonable inference, however, “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] … A finding of fact must be an inference drawn from evidence rather than … a mere speculation as to probabilities without evidence.”’” (People v. Cluff (2001) 87 Cal.App.4th 991, 1002.) “Evidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction.” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
We focus on the second of the two elements set forth above, i.e., the element of “specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22(b)(1).)
As indicated above, the prosecution presented opinion evidence that all of the offenses of which appellant stands convicted, including the count 4 robbery, benefited the OT by making it known to the public that OT members would respond with violence to any perceived slight, thereby creating a climate of fear and intimidation which would make it easier for OT members to escape punishment for crimes by discouraging people from testifying against, or reporting crimes committed by, OT members. The People argue that this evidence that the count 4 robbery benefited the OT, considered in conjunction the evidence that (1) when appellant committed the robbery he was wearing clothing, viz. blue jeans, of the color associated the OT; (2) the robbery was committed in OT territory; (3) at the time of the robbery appellant was “associating with another man equally willing to do harm to Brar” and (4) robbery was a primary activity of the OT, was sufficient to establish the specific intent element. We disagree.
In order to satisfy the specific intent element as to the count 4 gang enhancement, the People had to show that in committing the robbery of the ice cream truck driver, appellant had the specific intent to promote, further or assist criminal conduct by gang members. The only evidence of how the count 4 robbery might have achieved this result was Officer Fahoun’s testimony that appellant’s conduct in committing the count 4 robbery would assist gang members in their criminal endeavors by discouraging others from testifying against gang members or reporting their crimes. Implicit in this claim is the assumption that such conduct would communicate something to Brar and other members of the public about the OT, viz., that OT members would respond with violence to any perceived “insult.” Thus, the communication of this information is critical to the specific intent showing. Unless appellant communicated to Brar and/or others who observed or learned of the count 4 robbery that he (appellant) was associated with the OT, that robbery would not benefit the OT in the way that, according to Officer Fahoun, it did. Therefore, in the instant case, in order to establish appellant had the specific intent to promote, etc., gang criminal conduct, the People were required to establish appellant intended to communicate that he was associated with the OT.
There is no direct evidence on this point. However, the element of intent is generally proved with circumstantial evidence. “Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.” (People v. Pre (2004) 117 Cal.App.4th 413, 420. Evidence to support the element of specific intent may be shown by a defendant’s conduct and by the circumstances surrounding the commission of the act. (People v. Craig (1994) 25 Cal.App.4th 1593, 1597.) Accordingly, we examine the relevant circumstantial evidence.
Here, there is no evidence from which the jury reasonably could have concluded that appellant, at the time he committed the count 4 robbery, intended to make it known that he was a gang member: neither appellant nor his cohort who stood a few feet away during the robbery verbally identified themselves as gang members or made gang signs; there is no evidence appellant’s cohort was a gang member; and although appellant was wearing clothing of the color associated with the OT, that particular item of clothing, viz., a pair of blue jeans, is too common to support the inference that by wearing it appellant would have communicated, or intended to communicate, that he was associated with the OT. The evidence that appellant committed the count 4 robbery in gang territory is similarly of no consequence in that it does not show appellant communicated his gang membership. In short, although it is reasonably inferable from the manner in which appellant committed the count 4 robbery that appellant intended to intimidate and/or humiliate his victim, as well as intimidate others who might learn of the crime, the evidence is insufficient to establish he had a gang-related purpose in doing so.
We find instructive In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.). In that case, a minor was adjudicated of carrying a concealed dirk or dagger (§ 12020, subd. (a)(4)), with a gang enhancement, after police found him to be in possession of a concealed knife. The minor told police he needed the knife for protection against members of a group of gangs he referred to as “‘the Southerners’ because they feel he supports” the Nortenos, a group of rival gangs. (Frank S., supra, 141 Cal.App.4th at p. 1195.) A police gang expert testified the minor was, in fact, a member of the Nortenos and that “the knife benefits the Nortenos since ‘it helps them provide protection should they be assaulted by rival gang members.’” (Id. at p. 1199.) The appellate court held there was no substantial evidence to support the specific intent element of the gang enhancement, noting that “[t]he prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense.” (Ibid.) As the court stated, in order to justify the imposition of the gang enhancement, “‘[t]he crime itself must have some connection with the activities of the gang.” (Ibid.)
Here, as in Frank S., the evidence showed the accused was a member of a gang and that he committed a felony offense which, according to expert testimony, could benefit the gang, but the evidence was not sufficient to establish that he had a gang-related purpose in committing the offense in question. Therefore, we must reverse the true finding on the count 4 gang enhancement.
Because we find the evidence insufficient on the specific intent element, we need not address appellant’s contention that the evidence was also insufficient to establish the first element of the enhancement, i.e., that he “committed [the count 4 robbery] for the benefit of, at the direction of, or in association with” a gang.
Abstract of Judgment
Appellant argues, and the People concede, that the abstract of judgment setting forth the determinate portion of the sentence to be served before the life sentence imposed on count 1 incorrectly stated a total of 45 years 2 months. We agree. As indicated above, that portion of the sentence was 45 years. As indicated below, we will direct the trial court to prepare an amended abstract of judgment which will reflect the reduction in the sentence necessitated by the reversal of the count 4 gang enhancement. The starting point for that reduction, of course, must be 45 years, and not 45 years 2 months as indicated in the current abstract.
DISPOSITION
The true finding on the count 4 gang enhancement is reversed. The term of three years four months imposed on that enhancement is vacated. The trial court is directed to issue an amended abstract of judgment that incorporates these changes and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.