Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF138465, Bernard Schwartz, Judge.
Richard De La Sota, 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, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.
RICHLI, Acting P.J.
Following a jury trial, defendant Frank Torres, Jr., was convicted of being an active participant in a criminal street gang (Pen. Code, § 186.22, subd. (a)) and petty theft with a prior theft-related conviction (§§ 484/666). In a bifurcated proceeding, the trial court found true that defendant had sustained one prior strike conviction (§§ 667, subds. (c)-(i), 1170.12, subd. (c)(1)), one prior serious felony conviction (§ 667, subd. (a)), and three prior prison terms (§ 667.5, subd. (b)). As a result, defendant was sentenced to a total term of 13 years 4 months in state prison. Defendant’s sole contention on appeal is that there was insufficient evidence to support his conviction for being an active gang member. As explained below, we agree and will reverse defendant’s conviction for being an active gang member.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
In July 2007, Jose and Angela Corona were renting a house from Graciella Gonzalez and her husband on Quarry Street in Corona. The Coronas lived in one of the Gonzalez’s rental houses located behind the Gonzalez house. At the time, Jose worked in a factory in the morning and as a gardener in the afternoon. He kept a lawn mower and a weed trimmer locked to a tree in the yard.
On July 14, 2007, Jose left for work around 4:00 a.m. About 10:00 a.m., Graciella was mowing the lawn in the front of her house when she noticed defendant sitting on a bicycle in front of the two houses. He appeared to be acting as a lookout. Graciella then saw defendant’s cohort, Daniel Gutierrez, walking from the direction of the Corona house toward the street. Gutierrez was carrying the weed trimmer in one hand and holding onto a bicycle with the other hand. After Graciella told Angela what she had observed, Angela called the police.
Defendant was stopped by police a short time later while riding his bicycle near the Corona home. He initially denied knowledge of the theft of the weed trimmer. He then said that he had seen a male riding through an alleyway on a bicycle carrying a weed trimmer. After he was informed that he had been positively identified as being at the Corona house by Graciella, defendant changed his story and said that a friend named “Roger” took the weed trimmer because Jose had failed to pay him for it.. After completing a field interview card, defendant was released.
Later investigation revealed that no “Roger” had lived at the address given by defendant.
Later that same day, about 4:30 p.m., while defendant and his friends were sitting on the curb near the house from which the weed trimmer had been stolen, Graciella identified defendant as the one who had acted as the lookout earlier that day and his confederate Gutierrez as the one who had actually took Jose’s weed trimmer.
During an interview with an investigator from the Riverside County District Attorney’s Office, defendant admitted that he was a member of a gang out of southeast Los Angeles County called the “Varrio Norwalk” but claimed he was no longer active in the gang. Defendant had numerous tattoos on his body declaring his membership in the gang and his affiliation with the Mexican Mafia. Defendant also had various markings on his bicycle declaring his membership in the gang, and various graffiti designations and symbols of the gang were found on items in the area where defendant had kept his belongings. During the booking process for the instant offense, when asked if he was affiliated with any gang, defendant responded, “Norwalk Barrios,” and said that his gang moniker was “Frankie T.”
Based on defendant’s repeated admission of being a Varrio Norwalk gang member, as well as his tattoos and the gang graffiti found on his bicycle and other personal belongings, a gang expert opined defendant was an active participant in the gang. Detective David Cortinas, a gang expert on Los Angeles gangs, including Varrio Norwalk, testified that Varrio Norwalk, also known as “Barrio Norwalk,” was the largest gang in Norwalk and was designated a target gang by the Los Angeles County Sheriff’s Gang Unit for its violence and level of criminal activity. By July 2007, the Los Angeles County Sheriff’s Department had documented some 660 members of Varrio Norwalk.
In 2007, the primary activities of the gang members were committing murders, violent assaults, robberies, and carjackings; selling narcotics; possessing weapons; and stealing vehicles. On August 14, 2007, David Sandoval, an admitted member of Varrio Norwalk, pled guilty to possessing methamphetamine (Health & Saf. Code, § 11378). Sandoval admitted that he was dealing drugs for the benefit of the gang. Angel Garcia, another admitted member of Varrio Norwalk, was acting as a lookout for Sandoval while armed with a weapon. On August 14, 2007, Garcia pled guilty to being a felon in possession of a firearm (§ 12021). Richard Onopa, Jr., was also a member of Varrio Norwalk and pled guilty on July 13, 2007, to carrying a loaded firearm (§ 12031) for the benefit of a criminal street gang (§ 186.22), a crime committed on October 4, 2006.
II
DISCUSSION
Defendant contends there was insufficient evidence to sustain his conviction for being an active gang member, as there was no evidence that his confederate Daniel Gutierrez was a member of the Varrio Norwalk gang. In other words, defendant claims there was no evidence to show that he had promoted, furthered, or assisted in “felonious criminal conduct” by any member of the Varrio Norwalk gang. He further asserts that there was insufficient evidence that the Varrio Norwalk had engaged in a pattern of criminal gang activity, as two of three “predicate” offenses introduced by the People occurred after the instant offense.
In considering a claim of insufficient evidence, we review the entire record in the light most favorable to the judgment. We must affirm the conviction so long as a rational trier of fact could have found guilt based on the evidence and inferences reasonably drawn therefrom. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
The crime of gang participation is committed by “actively participat[ing] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and... willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang....” (§ 186.22, subd. (a).) “Th[is] substantive offense... has three elements[:] Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive,... ‘knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity,’ and... the person ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’ [Citation.]” (People v. Lamas (2007) 42 Cal.4th 516, 523.)
A. Evidence of Active Participationin Gang
“[A] person ‘actively participates in any criminal street gang,’ within the meaning of section 186.22(a), by ‘involvement with a criminal street gang that is more than nominal or passive.’” (People v. Castenada (2000) 23 Cal.4th 743, 752.) “[I]t is not necessary for the prosecution to prove that the person devotes all, or a substantial part, of his or her time or efforts to the criminal street gang....” (§ 186.22, subd. (i).)
In People v. Martinez (2008) 158 Cal.App.4th 1324, the court found sufficient evidence that the defendant actively participated in the King Kobras gang, as follows: “[An expert] testified he believed defendant was an active member of the King Kobras. He based this on review of booking photos of defendant that showed he had a VKKR tattoo over his eyebrow and a KK tattoo on the back of his head, which could be seen because he had a shaved head. He also spoke with a detective who had interviewed defendant after his arrest and reported that defendant said he had grown up in East Los Angeles, admitted being a member of King Kobras, and gave a gang moniker. He also relied on the crime defendant committed, one of the gang’s primary activities, and that he did it in association with another gang member....” (Id. at p. 1331.)
Here, similarly, defendant had admitted being a member of Varrio Norwalk but claimed he was no longer active in the gang. However, defendant also admitted that he had not, in fact, been jumped out of the gang. In addition, defendant had numerous tattoos on his body declaring his membership in Varrio Norwalk. He also had the gang’s name on his bicycle, which he had ridden on the day of the instant offense. Other items found in the area where defendant kept his belongings also had the gang’s name spray painted on them. Moreover, during the booking process for the instant offense, when defendant was asked if he was affiliated with a gang, defendant responded, “Norwalk Barrios,” another name for Varrio Norwalk, and gave his gang moniker as “Frankie T.”
The only even arguable distinction between this case and Martinez is that there was no evidence that defendant’s accomplice in the charged petty theft was a gang member. Nevertheless, overwhelming evidence tended to show defendant’s active participation in Varrio Norwalk.
We therefore conclude that there was sufficient evidence that defendant actively participated in Varrio Norwalk.
B. Evidence to Promote/Assist/Further Gang
Defendant argues that there was insufficient evidence that he promoted, furthered, or assisted in any felonious criminal conduct by gang members.
In People v. Castenada, supra, 23 Cal.4th 743 our Supreme Court referred to this “promote/further/assist” element as aiding and abetting, stating: “[S]ection 186.22(a) limits liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gang’s pattern of criminal gang activity. Thus, a person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members.... [Citations.]” (Id. at p. 749, italics added.)
To aid its interpretation of the terms in section 186.22, subdivision (a), the court in People v. Ngoun (2001) 88 Cal.App.4th 432 had reviewed dictionary definitions of “promote,” “further,” and “assist,” and concluded, “The literal meanings of these critical words squares with the expressed purposes of the lawmakers. An active gang member who directly perpetrates a gang-related offense ‘contributes’ to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct. Faced with the words the legislators chose, we cannot rationally ascribe to them the intention to deter criminal gang activity by the palpably irrational means of excluding the more culpable and including the less culpable participant in such activity.” (Id. at p. 436.)
Although “section 186.22(a) does not require that the crime be for the benefit of the gang” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1334) because its “gravamen is the participation in the gang itself” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467, fn. omitted), defendant must still have the “‘objective to promote, further or assist that gang in its felonious conduct...’” (People v. Ngoun, supra, 88 Cal.App.4th at p. 436).
We note a different argument that is lurking in this case. The promote/further/assist element requires that the defendant “promote[], further[], or assist[] in any felonious criminal conduct by [gang] members....” (§ 186.22, subd. (a), italics added.) One could argue that this element cannot be satisfied by evidence that the defendant perpetrated a felony alone or with nongang members.
In Ngoun, the statement of facts was unfortunately not published. (See People v. Ngoun, supra, 88 Cal.App.4th at p. 434.) The court’s discussion, however, indicates that, while the defendant was the direct perpetrator of murder and aggravated assault, he was aided and abetted by at least one other gang member. It stated, “Appellant was an active gang member who went with other Modesto Hit Squad members to a party where he knew other rival gang members would be. He went armed in anticipation of a confrontation and asked a fellow gang member to ‘watch his back.’ During the party there was a conflict between members of the two gangs. Appellant was ‘disrespected’ by members of Oak Street Posse. He fired into a crowd of people which included members of the rival gang, including those with whom he had had an adversarial encounter earlier in the evening.” (Id. at p. 437.) Accordingly, the somewhat different argument here was not presented in Ngoun.
However, it was presented squarely later in People v. Salcido (2007) 149 Cal.App.4th 356. There, the evidence showed that the defendant had committed felonies, as the direct perpetrator, on two occasions. First, in April 2005, he had been found to be in possession of concealed weapons. (Id. at pp. 359-360.) Second, in September 2005, he had been found to be driving a stolen car while having a concealed, loaded firearm in the car. (Id. at p. 360.) On both occasions, he had been in the presence of fellow gang members (id. at pp. 361-362), but there was no evidence that those gang members had aided and abetted his crimes. (Id. at p. 368.)
On appeal, the defendant argued that the trial court had erred by instructing that the promote/further/assist element could be satisfied by evidence that he “‘either directly and actively commit[ed] a felony offense or aid[ed] and abett[ed] felonious criminal conduct by members of th[e] gang.” (People v. Salcido, supra, 149 Cal.App.4th at p. 366, some italics omitted.) As the court explained: “Salcido attempts to distinguish Ngoun on the ground that there, other gang members actually were present when the appellant committed the murder and assaults underlying his section 186.22, subdivision (a), conviction. He contends Ngoun stands for the proposition that a ‘[principal] who commits a crime jointly with other gang members is equally liable under section 186.22, subdivision (a).’ Salcido asserts that [section 186.22,] subdivision (a) imposes liability on perpetrators only if they commit the crime in concert with other gang members. In Ngoun, however, we placed no limitation on our holding. To the contrary, we concluded that the subdivision ‘applies to the perpetrator of felonious gang-related criminal conduct as well as to the aider and abettor.’ [Citation.] Even though in Ngoun other gang members were present when the crimes were committed, it is uncertain whether they participated in the crimes. [Citation.] Here, Salcido was accompanied by known gang members on both occasions, although there was no evidence they participated in Salcido’s crimes. In each case, however, ‘[t]he evidence supports a reasonable inference that the [crimes] were intended by appellant to promote, further and assist the gang in its primary activities — the commission of criminal acts and the maintenance of gang respect.’ [Citation.]” (Id. at p. 368.)
Here, defendant appears to be arguing only that the promote/further/assist element cannot be satisfied because there was no substantial evidence that his coparticipant Daniel Gutierrez was a member of Varrio Norwalk or any other gang. Hence, he claims even if the other elements of section 186.22, subdivision (a) can be satisfied, there was insufficient evidence that he had promoted/furthered/assisted “‘felonious criminal activity by members of the gang.’”
It is true that the crimes in Salcido and other cases happened to be gang related (and, consequently, resulted both in substantive liability under section 186.22, subdivision (a) and an enhancement of punishment under section 186.22, subdivision (b)), but there is nothing in Salcido or in the language of section 186.22 that requires that conjunction. The statute merely requires that the defendant promote, further, or assist in “any felonious criminal conduct by members of that gang....” (§ 186.22, subd. (a).) Simply put, defendant, an active gang member, promoted felonious conduct by aiding and abetting in committing the felony. The jury could reasonably infer based on defendant’s active participation in his gang that defendant promoted/furthered/assisted in felonious criminal activity by members of the gang or that defendant’s coparticipant had more than a nominal or passive involvement with the gang. As noted previously, “[a] person need not be a gang member to be guilty of violating section 186.22(a). [Citation.] But he or she must have had more than a nominal or passive involvement with the gang, knowing of the gang’s pattern of criminal activity, and must have aided and abetted a separate felony committed by gang members. [Citation.]” (In re Jose P. (2003) 106 Cal.App.4th 458, 466.) “The provision ‘punishes active gang participation where the defendant promotes or assists felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself.’ [Citation.]” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
C. Evidence of Predicate Offenses
The instant offense occurred on July 14, 2007. At trial, the gang expert testified that on August 14, 2007, David Sandoval, an admitted member of Varrio Norwalk, pled guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and was sentenced to state prison. The crime occurred on August 3, 2007. Sandoval had stated that he sold the drugs for the benefit of the gang. The expert also testified that Angel Garcia, another admitted Varrio Norwalk gang member, was an armed lookout for Sandoval on August 3, 2007, pled guilty to being a felon in possession of a firearm (§ 12021) on August 14, 2007, and was sentenced to state prison. Further, Richard Onopa, Jr., a member of Varrio Norwalk, pled guilty on July 13, 2007, to carrying a loaded firearm (§ 12031) for the benefit of a criminal street gang (§ 186.22). That crime was committed on October 4, 2006.
Defendant contends the evidence was insufficient to support his gang conviction because two of the alleged predicate offenses committed by Varrio Norwalk gang members necessary to establish his gang “‘engage in or have engaged in a pattern of criminal gang activity’” occurred after the instant offense.
A “pattern of criminal gang activity” is defined as gang members’ individual or collective “commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more” enumerated “predicate offenses” during a statutorily defined time period. (§ 186.22, subd. (e); see also People v. Gardeley (1996) 14 Cal.4th 605, 616 (Gardeley); People v. Duran (2002) 97 Cal.App.4th 1448, 1457 (Duran).) “The statute contains two timing requirements for the offenses used to establish ‘a pattern of gang activity’: the last crime must have occurred within three years of a prior crime, and at least one of the offenses must have occurred after the effective date of the statute.” (People v. Godinez (1993) 17 Cal.App.4th 1363, 1368 (Godinez).) However, the statute did not specify whether offenses committed “after the crime for which the defendant is being tried” may serve as predicates for the enhancement. (Ibid.) Godinez, and subsequently Duran, interpreted section 186.22’s “requirements for establishing a ‘pattern of criminal gang activity’ as excluding offenses occurring after the charged offenses for which a defendant is on trial.” (Godinez, at p. 1370; see also Duran, at p. 1458.) The reason Godinez held that predicate offenses must precede the charged offense was to provide a defendant with “notice, in advance of his conduct, that his acts will fall within the proscription of section 186.22” because “[d]ue process entitles a defendant to notice, before he acts, of the criminality and consequences of his conduct.” (Godinez, at p. 1369.) The predicate offenses must have been committed on separate occasions, or by two or more persons. (§ 186.22, subd. (e); People v. Loeun (1997) 17 Cal.4th 1, 9-10 (Loeun).) The charged crime may serve as a predicate offense (Gardeley, at p. 625; People v. Olguin (1994) 31 Cal.App.4th 1355, 1383; Duran, at p. 1458), as can evidence of the charged offense and another offense committed on the same occasion by a fellow gang member. (Loeun, at p. 5.)
In Loeun, supra, 17 Cal.4th 1, a case relied upon by the People, the court addressed the question whether the requisite “pattern” could also be established “by evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member.” (Id. at p. 5.) The court concluded this was permissible (ibid.), stating, “In Gardeley, not only were the predicate offenses committed on separate occasions, but they were also perpetrated by two different persons. The pertinent statutory language does not require proof, however, that the two or more predicate offenses must have been committed both on separate occasions and by different persons. Under the statute, the pattern of criminal gang activity can be established by proof of ‘two or more’ predicate offenses committed ‘on separate occasions, or by two or more persons.’ [Citation.] The Legislature’s use of the disjunctive ‘or’ in the language just quoted indicates an intent to designate alterative ways of satisfying the statutory requirements. [Citations.] This language allows the prosecution the choice of proving the requisite ‘pattern of criminal gang activity’ by evidence of ‘two or more’ predicate offenses committed ‘on separate occasions’ or by evidence of such offenses committed ‘by two or more persons’ on the same occasion. Therefore, when the prosecution chooses to establish the requisite ‘pattern’ by evidence of ‘two or more’ predicate offenses committed on a single occasion by ‘two or more persons,’ it can, as here, rely on evidence of the defendant’s commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member.” (Id. at pp. 9-10, fn. omitted.)
In Loeun, the court rejected a contention that due process compelled a construction of the statute requiring the prosecution to prove one predicate offense predating the crime charged. (Loeun, supra, 17 Cal.4th at p. 11.) In People v. Zermeno (1999) 21 Cal.4th 927, however, it clarified that “... Loeun involved two separate assaults by two different assailants, each one subject to criminal liability as a direct perpetrator, not merely as an aider and abettor.” (Id.at p. 933.) Where, by contrast, one gang member is the actual perpetrator and the other is liable solely as an aider and abettor, the combined activity of the two constitutes but one offense. (Id. at pp. 931-932.)
Contrary to the People’s claim, case law is clear that a crime committed after the charged offense is not a predicate offense that may be used to establish the pattern of gang activity required under section 186.22, subdivisions (e) and (f). (Duran, supra, 97 Cal.App.4th at pp. 1457-1458; Godinez, supra, 17 Cal.App.4th at p. 1370.) Loeun does not assist the People. Accordingly, the two offenses committed on August 3, 2007 by fellow Varrio Norwalk gang members were insufficient to prove the necessary predicate offenses to establish a “pattern of gang activity” within the meaning of section 186.22. In addition, defendant’s current offense is also insufficient to prove the necessary predicate offense, as petty theft with a prior is not an offense listed in subdivision (e) of section 186.22. (See § 186.22, subd. (e).)
In sum, since only one valid predicate offense was admitted at trial, defendant’s conviction for violating section 186.22, subdivision (a) must be reversed.
III
DISPOSITION
Defendant’s conviction under section 186.22, subdivision (a) is reversed. In all other respects, the judgment is affirmed.
We concur: GAUT, J., KING, J.