Opinion
H043023
10-03-2017
THE PEOPLE, Plaintiff and Respondent, v. JULIO CESAR VASQUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1239205)
Defendant Julio Cesar Vasquez was convicted of attempted murder for the benefit of a criminal street gang (Pen. Code, §§ 187, 664, 186.22, subd. (b)(1)). On appeal, defendant asserts that the gang enhancement must be stricken because there was not substantial evidence to support it. In addition, he asks that the matter be remanded to the trial court for a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin), because the crime was committed just after his 18th birthday.
STATEMENT OF THE FACTS
The victim in this case, Steven Icedo, is a former member of "Varrio Sur Town" (VST), a subset of the Sureño gang in San Jose. Cadillac Drive and Winchester Boulevard in West San Jose is an area claimed by VST.
On August 14, 2012, Icedo was walking along Cadillac Drive in San Jose on his way to Los Cuates Meat Market where his girlfriend, Juliana Godinez, worked. As Icedo walked to the market, defendant, who was an active VST member, approached him on a bike from behind, circled him, and stopped in front of him. Defendant got off of his bike and walked up to Icedo. Defendant said something to the effect "You can't be here." Icedo told defendant to leave him alone. Defendant then pulled the butt of a gun from his pocket and said, "let's go to the back." Icedo began walking backward across the street and into the parking lot behind the Los Cuates Market, because he "didn't want to get shot in the back." Defendant said to Icedo, "te voy quebrar," meaning, "I'm going to break you." The phrase was slang for, "I'm going to kill you." Defendant pulled the gun from his pocket and shot Icedo in the chest.
When the shots were fired, Icedo saw a flash and felt pain in his chest. He ran to Los Cuates Market, holding his chest. He went inside the market and told Godinez to call an ambulance. He sat on a chair in the back office and pulled up his shirt. An employee at the market pressed a cloth to Icedo's chest wound to try to stop the bleeding. Godinez called 911.
San Jose Police Officer Ryan Kimber responded to Los Cuates Market. Icedo was pale, and he no longer bled from the bullet hole in his chest. Officer Kimber saw Icedo's eyes roll back in his head, and Icedo looked like he was slipping in and out of consciousness. Officer Kimber moved Icedo to the ground, where a paramedic began treating him.
Icedo was admitted to the hospital and was considered "critically ill." Icedo's lung was collapsed and two of his ribs were fractured. Blood pooled into his lung cavity.
San Jose Police Officer Jesse Ashe spoke to Icedo at the hospital. Officer Ashe showed Icedo a photographic lineup that included a picture of defendant. Icedo identified defendant as the shooter, stating that he had "seen him around recent times, because he's been threatening me," and "I know that was the guy."
Officer Ashe interviewed defendant after defendant was arrested on August 15, 2012. Defendant denied that he was known as "Demon" from VST. Defendant admitted that he shot Icedo, and said that he "just did it for the hood."
Gang Evidence Produced at Trial
San Jose Police Detective Sergio Pires testified as an expert on Hispanic gangs and the Sureño gang specifically. Detective Pires testified that the Sureño gang has been in San Jose since the early 1990's. He described the Sureños as a subset of the Mexican Mafia prison gang. Detective Pires opined that the Sureños are a criminal street gang. He testified that on August 14, 2012, the "Sureño gang" had no less than 20 members. Some of its primary activities are "robbery, assault with a deadly weapon, attempted murder, [and] even homicide."
Detective Pires stated that the Sureño gang can be broken down into its smaller subsets, which claim the specific territory, or "hood," where their members grew up. A member cannot belong to a Sureño subset and not belong to the larger Sureño gang. The Sureños identify with the word "sur," the color blue, and the number 13. The number 13 represents the letter "M," which references the Mexican Mafia prison gang. Sureño gang members often have tattoos that include the words "sur" and "Sureño," and various expressions of the number 13, such as one and three dots separated by a space, the Roman numeral "XIII," and two bars and three dots representing the Aztec calendar.
The VST subset often "branch[es] out" beyond its claimed territory of Cadillac Drive and Winchester Boulevard. Detective Pires testified that VST members will defend their territory "at all costs." In addition to typical Sureño tattoos, VST members have "hood-specific" tattoos, such as "VST." A tattoo reading "VST" demonstrates a member's allegiance to VST and to the Sureños in general.
Detective Pires opined that the Sureños had engaged in a pattern of criminal activity, and described four predicate offenses, including one that defendant committed.
The first predicate offense happened on April 22, 2012, in the area of Alum Rock in San Jose. Jaime Alvarez, Martina Loya, and an unknown male drove past the victim, who had a tattoo reading "BSM" with the "S" crossed out, which is considered a sign of disrespect toward Sureños. The unknown male passenger fired a gun at the victim through the rear window of the car. Alvarez was convicted of attempted murder and having a firearm in a vehicle, with a gang enhancement. Loya was convicted of the same firearm charge and of being an accessory to discharging a firearm within a vehicle, also with a gang enhancement.
Detective Pires stated that he believed Alvarez and Loya were gang members based on the circumstances of the crime. In particular, Detective Pires noted Alvarez's admission that he was a "gang member," and his and Loya's tattoos were all indicative of their membership in the Sureño gang. Specifically, Alvarez had a "Kiss Me 13" tattoo and Loya had an "ESSJ" tattoo, which stands for "East Side San Jose."
The second predicate offense occurred on June 27, 2011. Lili Cisneros and two males pulled their vehicle alongside the victim, who wore a red hat, and yelled, "There goes another motherfucker." Detective Pires explained that the color red is associated with the Norteños, a rival gang to the Sureños. Cisneros and the two males followed the victim into a restaurant and assaulted him, taking the red hat. The red hat was later found by officers in Cisneros's room. Cisneros was an admitted VST gang member. Cisneros was convicted of attempted second degree robbery with a gang enhancement.
The third predicate offense occurred on August 5, 2010, in the area of San Jose claimed by VST. A man and a woman, both of whom had tattoos associated with the Norteño gang were standing in front of an apartment complex. Sergio Garcia confronted the man and the woman, stabbed the man, and injured the woman when she tried to stop the assault. Garcia then left the scene with an unknown male and "someone" yelled, "puro sur," which means "pure south." Garcia had previously admitted he was a member of VST. He was convicted of attempted murder and assault with a gang enhancement.
The final predicate offense was committed by defendant on August 25, 2011. Defendant, who was a minor at the time, and another male confronted a man cleaning his car and demanded the keys. When the man refused, they assaulted him and took the keys. Detective Pires believed that defendant was a member of VST at the time of the offense, based on defendant's admission to officers that day that he was a VST member, and also because the other male who committed the crime was a known VST member. A petition alleging that defendant committed robbery was sustained.
Detective Pires testified that he believed that at the time of the shooting in this case, defendant was a Sureño gang member belonging to the VST subset. Defendant had previously admitted membership in VST and when he was booked in this case, he told the intake deputy that he was a Sureño. Defendant also had many gang-related tattoos associated with Sureño membership. At the time of his arrest, defendant had one dot tattooed on his right hand and three dots tattooed on his left hand, as well as one dot tattooed on his right wrist and three dots tattooed on his left wrist, symbolizing the number 13, which is associated with the Sureño gang. Defendant also had three dots tattooed on his left elbow and the letter "W" tattooed on his middle finger, which stood for "west" or "west side"—the area of San Jose claimed by VST.
Detective Pires testified that since he was booked in this case, defendant had gotten additional Sureño tattoos. He had the letter "S" tattooed on his right earlobe and the letter "T" tattooed on his left earlobe. Detective Pires explained that the "S" stands for "Sur" or "Sureño" and the "T" stands for "Town." Together, the tattoos stand for "Sur Town" or "Sureño Town," and thus identified defendant's membership in the VST subset. Defendant also had gotten a tattoo of the Roman numeral "XIII" covering up the dot tattoos formerly displayed on his hands. Detective Pires explained that defendant's tattoos were the type that a gang member would have to earn by "putting in work" for the gang, meaning committing crimes for the benefit of the gang, such as robbery, or "trying to kill someone" who has disrespected the gang.
STATEMENT OF THE CASE
On November 20, 2013, an information was filed charging defendant with premeditated attempted murder (Pen. Code, §§ 187, 189, 664; count 1), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2), and possession of drug paraphernalia (former Health & Saf. Code, § 11364.1; count 3). The information further alleged that defendant personally used a firearm and committed attempted murder for the benefit of a criminal street gang. (Pen. Code, §§ 12022.53, subds. (b)-(d), 12022.7, 186.22, subd. (b)(1).) It was also alleged that defendant had suffered a prior strike conviction. (Id., §§ 667, subds. (b)-(i), 1170.12.) On November 13, 2014, the possession of methamphetamine charge was reduced to a misdemeanor pursuant to Proposition 47. Defendant pleaded no contest to that charge and to the possession of drug paraphernalia charge.
On November 24, 2014, a jury convicted defendant of attempted murder and found the firearm and gang enhancements to be true. The jury found not true that defendant premeditated the attempted murder. After a bifurcated bench trial, the court found true the prior strike conviction allegation.
On September 18, 2015, the court sentenced defendant to a total prison term of 25 years to life, consecutive to 24 years. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant asserts on appeal that the gang enhancement must be stricken because there was not substantial evidence to support it. In addition, he asks that the matter be remanded to the trial court for a Franklin hearing, because the crime was committed just after his 18th birthday.
Gang Enhancement
" 'We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction.' " (People v. Wilson (2008) 44 Cal.4th 758, 806.) "[W]e 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.' " (People v. Albillar (2010) 51 Cal.4th 47, 60.) " 'Reversal is unwarranted unless " 'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " ' " (People v. Mendez (2010) 188 Cal.App.4th 47, 56.)
With regard to the gang enhancement in this case, defendant argues that there was insufficient evidence to establish an associational or organizational connection between the larger Sureño gang that he allegedly sought to benefit and the VST subset of which he was a member.
A " 'criminal street gang' " is "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in [the statute], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (Pen. Code, § 186.22, subd. (f).) A " 'pattern of criminal gang activity' " is "the commission of, attempted commission of, . . . or conviction of two or more [statutorily enumerated] offenses, provided at least one of these offenses occurred after the effective date of this chapter [September 26, 1988] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." (Id., subd. (e); id., subd. (j).) Assault with a deadly weapon, making criminal threats, and carrying a concealed and/or loaded firearm are among the offenses enumerated in the statute. (Id., subd. (e)(1), (24), (32), (33).) Charged offenses can serve as predicate offenses. (People v. Gardeley (1996) 14 Cal.4th 605, 625, overruled on another ground in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.)
In People v. Prunty (2015) 62 Cal.4th 59 (Prunty), the California Supreme Court addressed "what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets." (Id. at p. 67.) Prunty held that "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of [Penal Code] section 186.22[, subdivision] (f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Id. at p. 71.) "That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization. [¶] Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same 'group' that meets the definition of [Penal Code] section 186.22[, subdivision] (f)." (Id. at pp. 71-72, fn. omitted.) The evidence "must allow the jury to reasonably infer that the 'criminal street gang' the defendant sought to benefit—or which directed or associated with the defendant—included the 'group' that committed the primary activities and predicate offenses." (Id. at p. 76.)
The prosecution has "significant discretion" in how it proves this connection. (Prunty, supra, 62 Cal.4th at p. 67.) The evidence "need not be direct, and it need not show frequent communication or a hierarchical relationship among the members who communicate." (Id. at p. 78.) "But it is not enough . . . that the group simply shares a common name, common identifying symbols, and a common enemy." (Id. at p. 72.) "Evidence of a common viewpoint also fails to show that subsets have any other relationship that unites them." (Id. at p. 75; see People v. Williams (2008) 167 Cal.App.4th 983, 988.)
Citing Prunty, defendant argues that the People failed to establish a sufficient connection between the VST subset and the larger Sureño gang to show that in committing his crime, defendant sought to benefit Sureños. He asserts that merely showing that VST is a subset of the Sureño gang as was shown here is not enough to meet the standard set forth in Prunty.
While the People's theory in this case was similar to that in Prunty, the difference here is that there was evidence of an organizational connection between the VST subset to which defendant belonged, and the larger Sureño group. There was also evidence that the gang members who committed three of the predicate offenses, Lili Cisneros, Sergio Garcia, and defendant all identified with VST, as well as the Sureño gang as a whole.
With regard to the connection between VST and the Sureño gang, Detective Pires presented evidence explaining the gang's origins and hierarchy. Specifically, he explained that the Mexican Mafia prison gang is the top of a hierarchy, the Sureño gang follows immediately beneath, and the VST is an even smaller subset of the Sureños connected to a specific neighborhood in San Jose. Detective Pires specifically testified that one cannot be a member of a subset such as VST without necessarily also being a member of the Sureño gang as a whole.
With regard to the predicate offenses in this case, Detective Pires stated that three of the offenders: Garcia, Cisneros and defendant all belonged to the VST subset. The victim of Garcia's crime of attempted murder was a member of the Norteño gang, the main rival of the Sureños, and either Garcia or the man with him at the time yelled "puro sur," to identify themselves as affiliated with the Sureños gang while committing the crime. Detective Pires also testified that defendant was not only a member of the VST, but when defendant was booked into the county jail, he told the intake officer that he was a member of the Sureño gang. Further proof of defendant's affiliation with the Sureños were his tattoos demonstrating his membership. Specifically, defendant had one and three dots and the Roman numeral XIII on his hands. Detective Pires explained the representation of the number "13" as a reference to the letter "M," and the "Mexican Mafia," which places the gang at the highest point on the gang hierarchy. The VST members "exhibit[ed] behavior showing their self-identification with a larger group [of the Sureño gang]." Which is further evidence showing the organizational or associational connection between the VST subset and the Sureño gang. (Prunty, supra, 62 Cal.4th at p. 71.)
We conclude that the evidence presented at trial was sufficient to "allow the jury to reasonably infer that the 'criminal street gang' the defendant sought to benefit—or which directed or associated with the defendant—included the 'group' that committed the primary activities and predicate offenses." (Prunty, supra, 62 Cal.4th at p. 76; (Pen. Code, § 186.22, subd. (f).)
Remand for a Franklin Hearing
Defendant asserts, and the People concede that this matter must be remanded to the trial court for a Franklin hearing, because defendant was only a few months over the age of 18 when he committed this crime.
In Franklin, the defendant was sentenced to two mandatory terms of 25 years to life for crimes he committed when he was 16 years old. (Franklin, supra, 63 Cal.4th at pp. 268, 276.) The defendant was sentenced prior to the enactment of Penal Code section 3051, which mandates a parole hearing after 25 years for a defendant sentenced to 25 years to life for a crime committed while the defendant was under the age of 23. (Pen. Code, § 3051, subds. (a)(1) & (b)(3).) The court in Franklin held that Penal Code section 3051 entitled the defendant to present evidence in the trial court about his level of maturity when he committed his crimes, and that if he did not have a sufficient opportunity to do so at his original sentencing, the matter must be remanded to the court to do so. (Franklin, supra, at pp. 283-284.)
Here, defendant committed his crime in August 2012, just three months after his 18th birthday in May 1994. Defendant argues that this case should be remanded so that he can present evidence in preparation for his eventual youth offender parole hearing pursuant to Penal Code section 3051.
We accept the People's concession that his matter must be remanded for a Franklin hearing. (See In re Cook (2017) 7 Cal.App.5th 393, 399 [directing trial court to conduct a hearing allowing defendant opportunity to make a record that will allow future parole board to fulfill its statutory obligations under Penal Code sections 3051 and 4801].)
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court for the limited purpose of determining whether defendant was afforded an adequate opportunity to make a record of information that will be relevant to the Board of Parole Hearings in a future parole eligibility hearing held pursuant to Penal Code section 3051, and, if not, to allow defendant and the People an adequate opportunity to make such a record.
/s/_________
Premo, Acting P.J.
WE CONCUR: /s/_________
Elia, J. /s/_________
Grover, J.