Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles Horan, Judge, Super. Ct. No. KA070676
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Rogelio Tamayo was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a). The jury found true the allegations that appellant personally used a deadly weapon in the commission of the crime within the meaning of section 12022, subdivision (b)(1) and committed the murder for the benefit of the gang within the meaning of section 186.22, subdivision (b). The trial court sentenced appellant to a term of 25 years to life in prison for the murder, plus a one-year enhancement term for the use of a deadly weapon.
All further statutory references are to the Penal Code unless otherwise indicated.
Section 186.22, subdivision (b)(5) provides that any person who violates section 186.22 in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served. Thus, the gang enhancement had no practical effect on appellant's sentence for murder, which has a minimum parole period of 25 years.
Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the jury's finding that he committed the crime for the benefit of a gang within the meaning of section 186.22. Respondent contends that the trial court erred in failing to impose state construction fees pursuant to Government Code section 70372, subdivision (a). We affirm the judgment of conviction.
Facts
On July 18, 2003, shortly after 8:00 p.m., Los Angeles Sheriff's Deputies Lynch and Bolanos were driving by a shopping mall on the corner of Valley Boulevard and Azusa Way in La Puente. The deputies saw appellant, his young son, and Josue Mendoza walking on the sidewalk in front of the mall. Appellant was a member of the Little Hill gang. Mendoza was an associate and member of the gang. Mendoza was wearing a shirt with black horizontal stripes.
The deputies pulled over. Deputy Bolanos asked appellant about his brother, whom the deputies had previously arrested. When the deputies drove away, appellant and Mendoza continued walking eastbound, in the direction of a transient, Lopez.
Claudia Martinez saw a man in a striped shirt talking to a police officer as she went to a video store in the mall. While she was in the store, she heard yelling, looked out and saw the man in the striped shirt hitting another man. The victim was later identified as a transient named Lopez.
Angelina Castaneda was working in the video store. She, too, heard yelling. When she looked outside, she saw two men fighting and yelling at each other. One man was wearing a shirt with dark horizontal stripes. The other man was someone who drank a lot and smelled. Castaneda saw a taxi arrive. Two men got out and joined the fight against Lopez.
Leticia Gutierrez, who was parked next to the video store, saw the three men circle the victim and make a thrusting motion at him. Castaneda yelled that the police were coming, and the three attackers got into the taxi and left.
Lopez appeared injured, but was able to walk to the Senor Ranas bar. Armando Burgos, who knew Lopez, saw him run toward the bar. Lopez had been stabbed. Appellant ran after Lopez and tried to stab him. Lopez collapsed.
Burgos identified appellant from a six-pack photographic line-up he was shown by police investigators.
When Sheriff's Deputy Edward Looney arrived at the scene, Lopez was on the ground, covered in blood. He had been stabbed 10 times. Five of the wounds were fatal. The wounds varied in width, which is consistent with multiple knives being used.
At trial, Sheriff's Deputy Steven Skahill testified as a gang expert. The Little Hill gang was located in La Puente with about 200 active members and associates. The shopping mall where the Lopez stabbing occurred was in the heart of their territory. The gang was involved in murder, assaults with deadly weapons and firearm, carjacking, car theft and narcotics sales. The parties stipulated that Little Hill was a criminal street gang.
According to Deputy Skahill, appellant was a member of the Little Hill gang. Mendoza was a "member and associate" of that gang. In Deputy Skahill's opinion, there was only "a little bit" of difference between a member and an associate. Associates desire to be gang members, and hang out with gang members. Associates are expected to "put in work" for the gang, that is commit crimes for the gang in order to earn respect and membership in the gang.
In response to a hypothetical question based on the evidence presented, Deputy Skahill opined that the stabbing was committed for the benefit of, in association with, or at the direction of the Little Hill gang. Gangs had to maintain respect on the street. If they did not, they would not be able to control their territory. Gangs also wanted people in the community to respect and fear them so that the people would not be potential witnesses against the gang.
Wendy Lopez-Bautista, who was at the Senor Ranas bar at the time of the Lopez stabbing, also testified at trial. She gave contradictory accounts of the identities of the attackers. She told police that appellant was one of the attackers, then said that she had lied and appellant was not involved. She later acknowledged that she felt endangered by talking to police because she knew that appellant and his friends were capable of killing. She did not identify appellant because she feared retaliation from the Little Hill gang. Once she located to a place out of the area, she became willing to testify and tell the truth.
Discussion
1. Sufficiency of the evidence
Appellant contends that the prosecution did not prove that he committed the murder with the specific intent to promote, further, or assist, in any criminal conduct by gang members, as is required by section 186.22, subdivision (b)(1). Appellant contends that there is no evidence that he intended to facilitate "other" criminal conduct by the Little Hill gang. He further contends that there is no evidence that he intended to promote, further, or assist any criminal conduct by gang members in the stabbing of Lopez. We see sufficient evidence.
In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the 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. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks, italics, and citations omitted.) The standard of review is the same when the prosecution relies mainly on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Section 186.22, subdivision (b)(1) provides for additional punishment for "any 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 . . . ." Appellant acknowledges that there is sufficient evidence that his offense benefited the Little Hill gang. He focuses on the second part of subdivision (b)(1), the specific intent requirement.
Appellant cites Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 as authority that the gang enhancement applies only if the charged offense was committed with the specific intent to assist other criminal conduct by gang members. It is true that, in Garcia, the court affirmed the district court's granting of habeas relief as to the gang enhancement because the record did not "'support an inference that [the defendant] robbed [the victim] in order to facilitate other gang related criminal operations within [the community].'" (Id. at p. 1103.)
"'[F]ederal decisional authority is neither binding nor controlling in matters involving state law.'" (Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 55.) We do not find the reasoning in Garcia persuasive. There is no requirement in section 186.22, subdivision (b), that the defendant's intent to assist criminal endeavors by gang members must relate to criminal activity apart from the offense being committed. To the contrary, the specific intent required by the statute is "to promote, further, or assist in any criminal conduct by gang members . . . ." (Pen. Code, § 186.22, subd. (b)(1), italics added.)
We agree with our colleagues in the Third District Court of Appeal and Division 4 of this District Court of Appeal that Garcia's interpretation of California law is incorrect. (People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero (2006) 140 Cal.App.4th 15, 19.)
Appellant contends that even if the "other" requirement of Garcia v. Carey does not apply, there is no evidence that he had the specific intent to further the criminal conduct of other gang members. He contends that the evidence showed that Mendoza was only an associate of the Little Hill gang member.
Deputy Skahill, a gang expert, testified that Mendoza was "a member and associate with Little Hill Gang itself." Viewed in the light most favorable to the judgment, this is evidence that Mendoza was a member of the gang. Even if Mendoza were considered to be merely an associate, there would be enough evidence to support the gang enhancement. Gang associates, by Deputy Skahill's definition, desire to be gang members and "put in work" for the gang, that is commit crimes for the gang in order to earn respect and membership in the gang. This is precisely what younger members of gangs do. As Deputy Skahill explained, there is only "a little bit" of a difference between a gang member and an associate.
Even if there were a significant difference between gang members and associates, we would still see sufficient evidence to support the enhancement. By assisting an associate who wanted to join the gang comply with the entrance requirements, appellant was assisting "other" criminal conduct by the gang. He was helping the gang to acquire a new member to help in their primary activity of committing criminal activities.
Finally, assuming that assisting criminal conduct by a gang associate is not sufficient, appellant is a gang member and he participated in the murder of Lopez. The jury found that he personally used a deadly weapon in the attack. Appellant's own criminal conduct is sufficient to satisfy for the requirement that he promote, further or assist in criminal conduct by a gang member. (People v. Hill, supra, 142 Cal.App.4th at p. 774 [defendant's own criminal conduct qualified as the gang-related criminal activity requirement of section 186.22, subd. (b)].)
2. State construction fees
Respondent contends that the trial court should have added a state court construction penalty in the amount of $500 to the restitution and parole revocation fines imposed pursuant to sections 1202.4, subdivision (b) and 1202.45 respectively. We do not agree.
On October 5, 2007, the Governor approved Senate Bill No. 425 which was enacted to clarify that the state construction penalty is not to be imposed on any restitution fines. It operates retroactively. (People v. McCoy (2007) 156 Cal.App.4th 1246, ____ [68 Cal.Rptr.3d at p. 141]; People v. Estrada (1965) 63 Cal.3d 740, 748.) A defendant generally is entitled to benefit from statutory amendments that become effective during his appeal. (People v. Viera (2005) 35 Cal.4th 264, 305.) Thus, Government Code section 70372 has no application to appellant's restitution fines.
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.