Opinion
B231284
01-18-2012
THE PEOPLE, Plaintiff and Respondent, v. GUARY LONNIE SHUFORD, Defendant and Appellant.
Law Offices of Pamela J. Voich and Pamela J. Voich, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA112581)
APPEAL from a judgment of the Superior Court of Los Angeles County. Richard R. Ocampo, Judge. Affirmed.
Law Offices of Pamela J. Voich and Pamela J. Voich, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
Guary Lonnie Shuford appeals from the judgment entered following a jury trial at which he was found guilty of second degree robbery (Pen. Code, § 211) and gang allegation (§ 186.22, subd. (b)(1)) was found true. He was sentenced to prison for a 13- year term consisting of the 3-year middle term, plus 10 years for the gang enhancement.
All further section references are to the Penal Code.
Appellant contends the gang enhancement must be vacated because the evidence is insufficient to show that in committing the robbery, he acted for the benefit of or in association with a gang and that he entertained the gang related specific intent to commit the robbery. We conclude substantial evidence supports the jury's gang-related finding and affirm the judgment.
BACKGROUND
In recounting the evidence presented at trial, " 'we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence'. [Citation.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
On the night of May 27, 2010, the victim was walking to the green line train station in Watts when a white Buick slowed down next to him and stopped. Appellant and two other males exited and approached him. Appellant threatened: "Don't run or I will pop you." Appellant pulled from his pocket a semiautomatic gun, put it away, and asked where the victim was from. The victim interpreted this inquiry as a request for his gang affiliation. He denied having any, responding: "I am not from anywhere" and "I don't bang. I am 37 years old. I don't have time for stuff like that[.]"
Appellant then asked " 'What do you have?' " The victim replied, "Nothing." Appellant patted down the victim and took his watch. Meanwhile, Kenndon Bragg punched the victim in the neck, took his cell phone from his pocket, and "snatched" his necklace. The third man stood by the car. Afterward, the three males returned to the car, which drove off. The victim gave police the car's license plate number.
Bragg, who is not a party to this appeal, was also convicted of robbery, and the gang allegation was found true as to him.
The next night, police stopped the Buick and took into custody appellant, Bragg, and a third male. During a field show-up, the victim identified appellant and Bragg, who still possessed the victim's phone.
At trial, evidence was presented that the robbery was gang-related. The victim testified he knew about the different gangs in the general area and had heard of the Bounty Hunters gang. No mention was made of Bounty Hunters, but the robbery took place in Bounty Hunter's turf. Although he frequented this area, he did not know anyone affiliated with the Bounty Hunters and never had any problems with that gang in the past. Preceding the robbery, he had been helping a female friend, who was not affiliated with that gang, move to this area. Officer Hamaoka knew Bragg since the latter part of 2009. He had encountered Bragg several times in the company of Bounty Hunter members, who Bragg referred to as his "homeys." On one occasion Bragg wore red shoes. Bragg never admitted to the officer that he was a gang member or associate. On May 3, 2010, just weeks before the robbery, Officer Justin Chi stopped a Buick. He asked if the occupants - appellant and two other males - were members of any gang. All three admitted they were members of the Bounty Hunter Bloods.
Called as a gang expert, Officer Hamaoka testified that since the 1970's, the Bounty Hunter Bloods was a criminal street gang in southeast Los Angeles. Red was a Blood color. The gang's primary activities were robbery, narcotics sales, weapons possession, attempted murder, and murder. He testified regarding the robbery and homicide convictions of two members of the gang. He explained the gang sought "respect" and that both the gang and the gang members individually enhanced their reputation through the commission of crimes, i.e., "put in work for the gang." It was common for members of the gang to "hit" up a stranger who was in their "territory."
Officer Hamaoka opined that in May 2010, appellant was a member of the Bounty Hunter Bloods based on his prior admission to membership and the fact that he was seen consistently in Bounty Hunter territory with members of this gang. He opined that Bragg, who lived in the gang territory, was a gang associate based on Bragg's reference to gang members as his "homeys" and his wearing shoes that were red, the Bloods' color. He confirmed the robbery was within the gang's territory.
Based on all the factual circumstances set forth in a hypothetical, Officer Hamaoka opined that appellant and Bragg committed the robbery for the benefit of and in association with the Bounty Hunter Bloods. He explained the two benefitted individually from this robbery through bragging rights, which would elevate their gang status. Appellant's status as a gang member was enhanced, and Bragg, a gang associate, demonstrated that he should be considered member worthy. Aside from any monetary gain from the robbery, the gang would benefit, because the robbery served to increase fear and intimidation in the community regarding the gang. He opined that the robbery was in association with the gang because at least one gang member and a gang associate committed the crime.
Appellant did not present any evidence.
DISCUSSION
Appellant contends the evidence simply shows he committed "a garden-variety robbery" for personal rather than gang reasons and that the requisite factual foundation to support the gang expert's opinion to the contrary did not exist. The record refutes this contention.
"[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: . . . 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)(C), italics added; see § 667.5, subd. (c)(9) ["A]ny robbery" is a violent felony].)
"It has long been settled that expert testimony regarding whether a crime was gang related is admissible. [Citations.] And for good reason. Such matters are sufficiently beyond common experience that expert testimony would assist the jury. [Citations.]" (People v. Vang (2011) 52 Cal.4th 1038, 1049, fn. 5.) "It has also long been settled that expert testimony generally, and expert testimony regarding whether a crime is gang related specifically, may be given in response to hypothetical questions. [Citations.]" (Ibid.)
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we 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.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
Substantial evidence supports the jury's finding that the charged robbery was "committed for the benefit of, at the direction of, or in association with" a criminal street gang. Evidence was presented that as a prelude to the robbery, appellant invoked a gang-related challenge to the victim: Where are you from, meaning what gang do you claim. (Cf. People v. Ochoa (2009) 179 Cal.App.4th 650, 663 ["The gang enhancement cannot be sustained based solely on defendant's status as a member of the gang and his subsequent commission of crimes."].)
Moreover, robbery was a primary activity of the gang, and this robbery was committed on the gang's own turf by appellant, a gang member, and Bragg, his gang associate. Their cooperation together increased the likelihood of the completion and success of the robbery. The robbery also served to increase the status of appellant and Bragg individually and the reputation of the gang generally.
Appellant contends the robbery was personal, and not gang-related, because Bragg retained part of the loot, the victim's cell phone, and there was no evidence that the remainder of the loot, namely, the victim's necklace and watch, had been sold. Nonetheless, the jury was entitled to draw the inference that the robbery was gang-related in view of the ample evidence of gang indicia. (See Albillar, supra, 51 Cal.4th at p. 62 [when "presented with the competing inferences, [jury] entitled to credit the evidence that the attack on Amanda M. was gang related, not family related"].)
Similarly, the evidence is substantial that appellant committed the robbery with the requisite intent: "the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22 (b)(1), italics add.) "In common usage, 'promote' means to contribute to the progress or growth of; 'further' means to help the progress of; and 'assist' means to give aid or support. [Citation.]" (People v. Ngoun (2001) 88 Cal.App.4th 432, 436.)
As appellant correctly notes, the evidence established that of the three perpetrators, only appellant was shown to be a gang member. The jury was entitled to draw the inference from circumstantial evidence that Bragg was a gang associate, but not that he was a gang member. There was no evidence regarding the identity or gang status of the third perpetrator.
The issue presented is whether the scienter element of the gang enhancement may be satisfied where the defendant is the only known gang member among the perpetrators of the gang-related crime. In other words, does a defendant gang member without the participation of any other gang member commit the gang-related crime "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22 (b)(1), italics add.) We resolve this issue in the affirmative.
"The enhancement set forth in section 186.22(b)(1) does not risk conviction for mere nominal or passive involvement with a gang. Indeed, it does not depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the [requisite] specific intent[.]" (Albillar, supra, 51 Cal.4th at pp. 67-68.) Moreover, "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. [Citation.] 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. [Citations.]" (Id. at p. 67, italics in original.)
The key lies in the interpretation of the phrase "any criminal conduct by gang members." A gang, like a corporation, only operates through its agents, in this case "gang members." The use of the plural of the singular gang member, i.e., "gang members," does not signify more than one gang member must commit the criminal conduct in question. Rather, the term "gang members" serves to define the parameters of and categorize the nature of the criminal conduct involved and is simply inarticulate shorthand for: any criminal conduct committed by members of a gang, i.e., gang-related criminal conduct.
In short, an active gang participant who committed a gang-related felony acting alone necessarily promoted or furthered criminal conduct by a gang member, himself or herself. The jury was entitled to find that defendant, a gang member, committed this robbery with the specific intent to promote or further "criminal conduct by gang members" although he acted without the participation or assistance of any other gang member. (See also People v. Hill (2006) 142 Cal.App.4th 770, 774 ["defendant's own [charged criminal conduct] qualified as the gang-related criminal activity. No further evidence on this [scienter] element was necessary"].)
The issue whether a lone defendant may promote or further criminal conduct by gang members within the meaning of section 186.22, subdivisions (a) or (b)(1) may be pending before our Supreme Court in People v. Rodriguez, review granted Jan. 12, 2011, S187680, and its progeny, People v. Gonzales, review granted Dec. 14, 2011, S197036, and People v. Cabrera, review granted March 23, 2011, S189414. Our analysis here is not dependent on the resolution of this issue because as we have observed Bragg was a gang associate, a term which definitionally includes a gang.
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DISPOSITION
The judgment is affirmed.
RUBIN, ACTING P. J.
WE CONCUR:
FLIER, J.
GRIMES, J.