Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County, No. RIF109059. Terrence R. Boren, Judge. (Judge of the Marin S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a)) (count 1); attempted robbery (§§ 664/211) (count 2); and attempted murder (§§ 664/187, subd. (a)) (count 3). The jury also found true that defendant committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)); that defendant personally and intentionally discharged a firearm (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8)) in the commission of counts 1 and 2; that defendant personally and intentionally discharged a firearm causing great bodily injury (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8)) in the commission of count 3; and that defendant personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) in the commission of count 3. Defendant was sentenced to a total indeterminate term of 55 years to life with the possibility of parole. On appeal, defendant contends there was insufficient evidence to support the jury’s gang enhancement findings. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
On the afternoon of March 15, 2003, defendant, an admitted member of the Grape Street Crips; Donald Smith, a member of the Kelly Park Crips; and another unidentified individual drove from the Carmelitos housing project in Long Beach to a drug dealer’s mobile home in Mead Valley to rob him. Prior to that, defendant, Smith, and three to four other individuals had been hanging out at the Carmelitos housing project together. Apparently, some girls who lived near the drug dealer (Timothy Rounds) and who were from either the Long Beach or the Los Angeles area informed either defendant or Smith that Rounds was dealing drugs out of Mead Valley. At that time, Smith sold marijuana for a living with defendant’s brother, Pat-Pat, a member of the Grape Street Crips. Rounds also sold marijuana for a living.
When defendant, Smith, and the unidentified driver arrived at Rounds’s home armed with guns and duct tape, defendant and Smith knocked on Rounds’s door. Rounds, a member of the Perris Hillside, Mead Valley Hillside, or Hustle Side Clique gang, answered the door. Defendant and Smith both asked to purchase some marijuana. After telling them to wait, Rounds closed the front door and went into a bedroom to retrieve the marijuana. As he was doing this, Rounds heard the front door open and heard people entering his home.
Rounds testified pursuant to a grant of immunity.
Smith ran into the bedroom and pointed a handgun at Rounds. When Smith looked over at defendant, Rounds threw himself on the bed and grabbed a 9-millimeter pistol that was under a table near the bed. Defendant entered the room holding a handgun with his arm extended and shot at Rounds, hitting him in the stomach. Rounds returned fired, and a shoot-out ensued. After being hit in the chest and hand, defendant dropped his gun and fled. When Rounds ran out of ammunition, he lunged for Smith’s gun, and the two wrestled for it. Smith continued to shoot at Rounds, hitting him in the fingers and head. Rounds slammed Smith up against the closet and then fell to the ground. Rounds told Smith, “[D]on’t shoot me no more. I’m going to let you go.” Smith grabbed a BB gun and ran out of Rounds’s mobile home.
The unidentified driver dropped defendant off at a hospital emergency room where defendant was treated for gunshot wounds. Smith died from multiple gunshot rounds to his torso. Rounds suffered a total of nine bullet wounds.
During a police interview, defendant admitted he knew Smith planned to rob Rounds. About 2,947 grams, or six pounds, of marijuana was found in Rounds’ home. The street value of that marijuana was about $2,400 to $3,000. Approximately $6,000 was found on either Smith or Rounds. Rounds had about $9,500 on his person.
II
DISCUSSION
Defendant contends there is insufficient evidence to support the jury’s findings that the crimes were committed for the benefit of, at the direction of, or in association of any criminal street gang or with the specific intent to promote, further, or assist in any criminal conduct by gang members.
A. Additional Factual Background Involving Gang Evidence
Investigator Ricardo Fuentes, who had been a police officer for 19 years and at that time was a senior investigator involved with the investigation of this case, testified as a gang expert. He explained that while he worked two and a half years for the Riverside County Jail and five years on patrol he familiarized himself with different gangs and gang culture. Investigator Fuentes had also worked in a specialized unit where he concentrated his duties on gang suppression and had experience dealing with Hispanic gangs, African American gangs, and White gangs. He had also attended over 10 seminars, conferences, and training sessions related to gang issues, gang problems, and gang trends throughout Southern California.
Investigator Fuentes explained that the definition of a gang under section 186.22 is “any organization . . . of three or more persons, formal or informal, which one of their primary activities is the commission of crimes that are listed under 186.22 of the Penal Code, which would include murders, drive-by shootings, drug sales, auto theft.” He also stated that the law defines a gang as having a common name, sign, or symbol and that the crimes committed are in furtherance of the gang to benefit the association of that gang.
Investigator Fuentes further testified that he was familiar with the Grape Street Crips gang. He noted that the Crips began in the early 1970’s in Los Angeles and that there is a general umbrella term of the Crips and then several sets or cliques. A set or clique is a certain neighborhood or territory claimed by clique members. For example, the Grape Street Crips claim a certain area in Los Angeles, and the Kelly Park Crips are named after a park in Compton that is their territory. Investigator Fuentes first came in contact with Grape Street Crips members in the late 1980’s or early 1990’s and had spoken with law enforcement gang experts in the Los Angeles area in regard to the gang’s predicate offenses. The activities of the Grape Street Crips included murder, attempted murder, robbery, and drug sales. Grape Street Crips gang members Early Young, Brian Phillips, and Kevin Miles had been convicted of the gang’s predicate offenses. Young had been convicted of murder, robbery, and attempted murder, Phillips of voluntary manslaughter, and Miles of carrying a loaded and concealed firearm. Defendant had repeatedly admitted membership in the Grape Street Crips gang and had a tattoo (a bundle of grapes) on his arm signifying his membership in the gang. Investigator Fuentes opined defendant was an active member of the Grape Street Crips at the time the instant crimes were committed.
In addition, Investigator Fuentes, who was also familiar with the Kelly Park Crips gang, noted accomplice Smith was an active member of that gang. The primary activities of the Kelly Park Crips included murder, attempted murder, drive-by shootings, drug sales, robberies, and automobile theft. Investigator Fuentes explained that it was not unusual for gang members from two different Crips gangs to align themselves for a common gang purpose and that the crimes in this case were gang related. Based on a hypothetical posed to him, Investigator Fuentes opined that each particular gang member and his gang would gain benefit by robbing a drug dealer of his marijuana and money for status, power, recognition, respect, and making money. The investigator stated, “[T]hey don’t for the most part have an employment, so they have to make money somehow, some way. And that’s usually by committing crimes, by committing robberies to get money to get drugs, weapons, to use later one.” For the most part, the investigator elaborated, when a gang member commits a crime, such as a drug sale or a robbery, the proceeds from the crime are community property of the gang. Investigator Fuentes also testified regarding gang culture, the consequences for being a snitch, and retaliation and explained that when a gang member commits a crime with another gang member, there is a certain level of trust that they will “have each other’s back” and not “rat each other out” if things go bad.
Evidence was introduced at trial that defendant had been threatened by friends and relatives of Smith for essentially bailing out on Smith during the shoot-out and attempted robbery.
B. Analysis
The same standard of review applies to claims of insufficiency of the evidence to support a gang enhancement finding as to support a conviction. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224; People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) “A reviewing court faced with such a claim determines ‘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.’ [Citations.] We examine the record to determine ‘whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] Further, ‘the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 139.) “‘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.”’ [Citation.]” (People v. Raley (1992) 2 Cal.4th 870, 891.)
“This standard applies whether direct or circumstantial evidence is involved.” (People v. Catlin, supra, 26 Cal.4th at p. 139; see also People v. Ferraez (2003) 112 Cal.App.4th 925, 929-930.) 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. [Citations.]” (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, including any words the defendant may have spoken, and by all the circumstances surrounding the commission of the acts. (People v. Craig (1994) 25 Cal.App.4th 1593, 1597; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
The essential elements of an allegation under section 186.22, subdivision (b) are (1) the crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang; and (2) these crimes were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Defendant contends there was no evidence to show the committed crimes were “‘gang-related.’” Specifically, he claims neither defendant nor Smith identified himself as a gang member, wore identifiable gang clothing, or made gang signs during the commission of the crimes. Rather, he suggests the crimes were committed solely for personal reasons.
The evidence presented to show the application of this statutory provision included the expert testimony of Investigator Fuentes. Expert testimony on criminal street gang sociology and psychology is generally admissible. (People v. Gardeley (1996) 14 Cal.4th 605, 617-619.) Indeed, “[i]t is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. [Citation.]” (People v. Ferraez, supra, 112 Cal.App.4th at p. 930.)
Contrary to defendant’s contention, the evidence was sufficient. The People proffered the testimony of gang expert Investigator Fuentes that, when gang members work together in committing crimes, the crimes benefit a gang because the perpetrators are acting together. The evidence showed that on the afternoon of the crimes defendant, an admitted member of the Grape Street Crips, and accomplice Smith, a member of the Kelly Park Crips, congregated together at an apartment complex in Long Beach with several other people before driving with an unidentified driver to Rounds’s home to Mead Valley to commit a robbery. The evidence showed that defendant and Smith went to Rounds’s home to rob him of his marijuana and/or money. Either Smith or defendant knew that Rounds was a major marijuana dealer out of Mead Valley. Robbery and drug sales were one of the primary crimes committed by both the Grape Street Crips and the Kelly Park Crips. Investigator Fuentes testified that it is not uncommon for two Crips gang members from different sets to work together for a common goal in criminal activity. He explained that gang members commit robberies to generate income for the gang, that committing this crime would benefit both the individual gang members and gangs, and that the proceeds from the crimes become community property of the gang. Another benefit would be that the crime would enhance the gang’s reputation and status among rival gangs. Hence, committing a robbery would benefit the gang members by increasing their reputation within the gang and would also by serving notice to members of rival gangs.
The evidence at trial also showed that the crimes were committed by both gang affiliates working in concert. Each gang member (defendant and Smith) had the specific intent to assist criminal conduct committed by the other, a gang member or associate. They approached the victim together armed with guns, and they acted jointly to gain Rounds’s compliance with their demands. Defendant and Smith knew each other and were seen together at the Carmelitos Apartments in Long Beach the night before the incident. Smith was involved in marijuana sales with defendant’s brother. Defendant, Smith, and an unidentified driver drove to Rounds’s home under the guise of a drug deal to rob him after someone had informed Smith about Rounds. From this evidence and the expert testimony, a reasonable juror could infer that defendant committed the crimes in association with a criminal street gang.
Contrary to defendant’s claim, gang members need not shout gang slogans or flash gang signs to act for the benefit of, at the direction of, or in association with a gang. (See, e.g., People v. Morales, supra, 112 Cal.App.4th at p. 1198.) Defendant’s contention that there was no evidence demonstrating the Grape Street Crips was a criminal street gang is belied by the record. Investigator Fuentes testified that there is an umbrella street gang organization known as the Crips. The Crips came into existence in the 1970’s. The Crips consists of several individual cliques defined by neighborhoods. The Grape Street Crips is a clique of the Crips that claims a certain area of Los Angeles. Grape Street Crips was founded in the 1970’s, its sign is “G” for grape and “C” for Crips, and its color is purple. Although Investigator Fuentes did not testify regarding the exact number of Grape Street Crips gang members, he stated that the statute defined a criminal street gang as an organization or association of three or more persons. Investigator Fuentes opined that based on this definition, Grape Street Crips was a criminal street gang. In addition, the evidence showed that at the time of the commission of the crimes in 2003, defendant was a Grape Street Crips gang member and had a tattoo of a cluster of grapes on his arm, his brother was a member, and Miles, Young, and Phillips, who had all committed predicate offenses, were members.
In Ferraez, supra, 112 Cal.App.4th 925, the defendant was found outside a swap mall with cocaine in his pocket. Even though the defendant specifically denied any intent to sell drugs for a gang, claiming he was selling drugs for the sole personal purpose of raising money to buy a car, the circumstantial evidence provided by the testimony of a gang expert was sufficient to support a true finding of the gang enhancement. (Id. at pp. 930-931.)
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., MILLER, J.