Opinion
C079255
02-17-2017
THE PEOPLE, Plaintiff and Respondent, v. JASMINE MARIA VELASQUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F02966)
A jury convicted defendant Jasmine Maria Velasquez of possession of a firearm by a person adjudged a ward of the court and multiple counts of carjacking and robbery, with firearm and gang enhancements found to be true. (Pen. Code, §§ 215, subd. (a), 211, 29820, 12022, subd. (a)(1), 186.22, subd. (b)(1) & (4).) On appeal, defendant contends the evidence was insufficient to establish the gang enhancements and reversal is required. We shall affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Crimes
Honda Civic Carjacking (counts one and two—§ 215 , subd. (a))
On April 16, 2013, two Hispanic men wearing bandanas over their faces approached Martin and Mei-Kuei Dorris, who were inside their parked 2010 Honda Civic. One man held a gun to Martin's head and ordered the Dorrises out of the car. After the Dorrises complied, the men got into the car and drove off. Fast and Easy Mart Robbery (count three —§ 211 )
On April 16, 2013, two men holding guns and wearing red bandanas over their faces entered the Fast and Easy Mart gas station. They pointed their guns at the two store clerks and hit one of the clerks on the head with a gun. The men stole five bottles of liquor and at least $800. Chevy Trailblazer Carjacking (count four—§ 215 , subd. (a))
During the crime spree at issue here, to throw off police, the participants (Sureños) disguised themselves by wearing red bandanas—the color associated with their rival gang, the Norteños.
On April 23, 2013, Nicki Voresis was at a gas station filling up her Chevy Trailblazer when an Hispanic male approached with a gun in his hand and demanded she get out of the vehicle. Voresis complied and the man and his companion got into the vehicle and drove off. M & N Liquor Robbery (count five —§ 211 )
On April 23, 2013, four Hispanic men entered M & N Liquor wearing red bandanas over their faces. One of the men approached the store clerk, held a gun to his head, and demanded money. A second man in the group also held a gun to a store customer. The clerk complied and the men stole $60 plus a few bottles of liquor. The group fled in a white Chevy Trailblazer. Nissan Maxima Carjacking (count six—§ 215 , subd. (a))
On May 1, 2013, Kenneth Rawls was at a gas station filling up his 2000 Nissan Maxima when two men approached wearing red bandanas over their faces. One had a gun and demanded Rawls get out of the car. Rawls complied and the men drove off in his car. Quick Stop Robbery (count seven —§ 211 )
On May 1, 2013, three men wearing red bandanas over their faces and carrying guns entered the Quick Stop convenience store. The men approached the clerk and demanded money and cigarettes. The clerk complied and the men stole the cigarettes and approximately $400 in cash and left. Neighborhood Discount Market Robbery (count eight —§ 211 )
On May 15, 2013, a man and a woman entered the Neighborhood Discount Market carrying guns and wearing red bandanas over their faces. The two demanded money from the store clerk and stole $150 plus cigarettes and alcohol. They fled the store in a gold Cadillac, with the female driving. Bell Market Robbery (count nine —§ 211 )
On May 18, 2013, a man entered the Bell Market carrying a gun and wearing a red bandana over his face. The man demanded money and stole $700 cash and $300 worth of glass bongs and pipes. The man fled the store in a car waiting for him outside. Jack in the Box Robbery (count ten —§ 211 )
On May 20, 2013, Isabel Munoz Vazquez, a Jack in the Box employee, left the restaurant to make a bank deposit of $4,100 in cash. As Vazquez got into her car, two men with their faces covered with red cloths approached, pointed guns at her, and demanded money. The men stole the restaurant's cash and Vazquez's purse and fled in a gold Cadillac driven by defendant. Kings Wine and Liquor Robbery (count eleven —§ 211 )
On May 22, 2013, an Hispanic or light-skinned Black man wearing a red bandana on his face and carrying a gun entered Kings Wine and Liquor Store. The man demanded the store clerk give him cigarettes, cash, and liquor. The clerk complied and the man stole $1,700 in cash and $300 worth of liquor and cigarettes. Gun possession (count twelve —§ 29820 )
On May 25, 2013, after being alerted to the location of the gold Cadillac, the police searched defendant's residence and found a .380-caliber pistol underneath a bed. Defendant was found hiding in a bedroom closet.
B. Gang Evidence
Enhancements on All Counts (§ 186.22 , subd. (b)(1) & (4))
Detective Lizardo Guzman, a member of the Sacramento County Sheriff's Department's gang suppression unit, testified at trial as an expert in Hispanic gangs, both Norteño and Sureño. Guzman testified there are two primary Hispanic gangs in Sacramento, the Norteños and Sureños, and they are rivals. Both the Norteños and Sureños are linked to the prison gangs known as Nuestra Familia and the Mexican Mafia, respectively. The Mexican Mafia is also known as "La Eme" (the pronunciation of the letter "M" in Spanish). Throughout his career, Guzman has had contact with at least 100 Sureños.
The Sureño gang is an umbrella group with subsets or "teams" throughout Sacramento. The Sureño gang is originally from Southern California, so they are not as numerous in Sacramento as the Norteños. Because they are fewer in number in Sacramento, Detective Guzman explained it is "not uncommon to see Sureños from several different neighborhoods or cliques all together getting along . . . ." Territories are "not as important to Sureños as far as rivals with other Sureños," and a member in good standing is "welcome at any of their gang hangouts." For example, it would not be uncommon to see a Howe Park Sureño member in the area of a south Sacramento Sureño subgroup known as Caya 47th (or 47th Street). The Sureño subsets "all hold their own weight," "sit at the same table," and all attend a monthly meeting to "talk business," which is held at a different location every month.
One of the biggest North Sacramento Sureño subsets is the Howe Park Sureños, with more than 25 members and a territory that includes Howe Park in Sacramento. The Santa Anita Park Sureñas, which Detective Guzman became aware of as a result of this case, are a female subset of the Howe Park Sureños, and have a territory adjacent to Howe Park. The Angelino Heights Sureños subset is originally from Los Angeles and is now becoming established in Sacramento, with at least six members. The Angelino Heights Sureños in Sacramento must travel monthly to Los Angeles for gang meetings and pay "taxes." The group does not have a specific geographical territory and members "hang out" in Sureño neighborhoods or territories.
"Sureña" signifies a female Sureño subgroup or member. --------
Sureños are generally proud of their gang membership. Like all gangs, members identify themselves with tattoos, brandings, colors, hand signs, who they associate with, and the territories they claim and hang out in. Each member also has a moniker or nickname, in an effort to avoid knowing each others' real names and make it harder for anyone cooperating with the police. Sureños are associated with the number 13, which stands for the letter "M" and shows allegiance to the Mexican Mafia. Sureños are also associated with the color blue, since Mexican Mafia members were issued blue handkerchiefs in prison. In contrast, the Norteños are associated with the color red and the number 14, which corresponds to the letter "N," and Nuestra Familia. Subsets may also have special markers, such as a tattoo with A and H for the Angelino Heights Sureños.
In the 1990's, the Mexican Mafia "sat down" with all the Sureño gang members and set down certain rules, including banning drive-by shootings for Southern California Sureño gang members. In addition, the Mexican Mafia started requiring Sureño subsets to pay "taxes" from the proceeds of their criminal activity. Typically a representative from the prison gang will go out to the Sureño subsets and collect the taxes. In exchange, the Mexican Mafia would provide protection if a Sureño comes to prison. Any Sureño subsets that did not pay taxes would not be protected in prison.
The primary activities of the Sureños are murder, firearm possession, robbery, assault with a deadly weapon, possession of controlled substances for sale, burglary, carjacking, and home invasion robbery.
Detective Guzman also testified to two predicate offenses: (1) validated Sureño gang member Mario Rodriguez was convicted in 2013 of being a felon in possession of a firearm and being a felon in possession of ammunition (§§ 29800, 30305). Rodriguez admitted to police he had the gun for his protection against rival Norteño gang members; and (2) validated Sureña gang member Daisy Ramirez discharged a handgun at a group of five Norteño gang members and was convicted in 2013 of assault with a firearm and discharging a firearm from a moving vehicle (§ 245, subd. (a)(2), former § 12034, subd. (c)).
In Detective Guzman's opinion, defendant was a member of the Sureños. She had numerous Sureño gang tattoos, including the number 13 on her left hand and three dots on her face and right hand (also symbolizing the number 13). In addition, defendant symbolized her allegiance to the Santa Anitas Park Sureñas with a tattoo of the letters "SPS" on her left index finger. Defendant also symbolized her allegiance to her incarcerated boyfriend David Zamora (a Howe Park Sureño) and her hatred of Norteños with a tattoo of Zamora's California Department of Corrections identification number, which included a crossed out number four.
In 2010, defendant admitted to police she was a Sureña. In addition, police previously found defendant in the company of validated Sureño gang members, including her brother, Adam Velasquez, and Mauricio Saravia, who are both validated Howe Park Sureños. She also texted with other known Sureño members and discussed in those texts at least 10 other previously identified Sureño gang members. She also often used a signature in her text messages indicating she was Sureña.
The prosecutor posed several hypothetical questions to Detective Guzman in line with the evidence presented in the case. Guzman opined the hypothetical crimes as described (robberies and carjackings) would benefit or promote the gang by bringing money into the gang and providing getaway vehicles not associated with the gang. The gang would even benefit if the criminal proceeds were funneled to an incarcerated member because that member would have money to pay for things in jail, such as extra clothing and food, and because it would bring the gang into the good graces of the dominant prison gang, such as the Mexican Mafia. In addition, a gang would benefit from a member possessing a weapon because this is "the ultimate item that demands respect" from both fellow and rival gang members. Finally, planning and executing these crimes would increase the status of the gang and its members and instill fear in the gang's community.
C. Additional Evidence
At trial, Pedro Madrigal testified he had been a member of the Angelino Heights Sureños since April 2013. Similar to Detective Guzman, Madrigal testified the Sureños originated from the Mexican Mafia and are associated with the number 13 and three dots. The Sureños also have a particular hand sign known as "The S," which members use to signal they are a Sureño.
Madrigal testified there are four or five Sureño subsets in Sacramento, including Angelino Heights, Howe Park, and Santa Anita Park, all three of which are located in or around Howe Park. According to Madrigal, the Howe Park Sureños had about 100 members, while the Angelino Heights Sureños had about 30 members. Because the Howe Park Sureños have more members, they are "more prestigious" and stronger than the Angelino Heights Sureños. Although some people in the Angelino Heights and Howe Park Sureños dislike each other and do not work together, historically the two groups "all associate together" and have an "alliance." It was common for the Angelino Heights, Howe Park, and Santa Anita Park subsets to share guns.
Madrigal met defendant at a New Year's party and knew her as a member of the Santa Anitas Park Sureñas. At the encouragement of a fellow Angelino Heights Sureño, a few weeks before the crime spree at issue here began, Madrigal attended a meeting of about eight people at the home of a member of the Howe Park Sureños. The group, which included defendant, planned armed robberies to "benefit . . . the gang" and "get money so we could get drugs and guns." Although, by the end of the crime spree, Madrigal suspected the money was going to defendant's incarcerated boyfriend Zamora. Madrigal testified he and defendant participated in the carjacking of the Dorrises and the robberies of the Fast and Easy Mart, the Neighborhood Discount Market, the Bell Market, and the Jack in the Box.
D. Verdict and Sentencing
A jury convicted defendant of all counts and found true a gang enhancement for all counts (§ 186.22, subd. (b)(1) & (4)). With respect to counts one through eleven, the jury also found true a firearm enhancement. (§ 12022, subd. (a)(1).) The trial court found true a prior strike allegation. (§§ 667, subds. (b)-(i), 1170.12, 1192.7, subd. (c).) The trial court sentenced defendant to state prison for an aggregate 90 years to life, consecutive to a determinate term of 60 years four months.
DISCUSSION
According to defendant, the evidence was insufficient to support the gang enhancements because the People failed to establish the required element of a "criminal street gang." (§ 186.22, subd. (b)(1) & (4).) Relying on People v. Prunty (2015) 62 Cal.4th 59 (Prunty), defendant contends the predicate offenses testified to by the People's gang expert were committed by members of Sureño subsets that were different than the subset to which defendant belonged and there was no substantial evidence linking these subsets to each other or to the greater Sureño gang. We disagree.
On appeal of a section 186.22 gang enhancement, " ' "we review the whole record in the light most favorable to the judgment to determine whether it discloses 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. [Citations.]" ' . . . 'Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.' " (People v. Wilson (2008) 44 Cal.4th 758, 806; see People v. Ortiz (1997) 57 Cal.App.4th 480, 484 [substantial evidence standard of review applies to section 186.22 gang enhancements].)
Section 186.22, subdivision (b)(1) and (4) increase punishment for those who commit felonies "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 . . . ."
A group is a " 'criminal street gang' " (§ 186.22, subd. (f)) if: "(1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.] [¶] 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. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons." (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.)
In Prunty, the court held that "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of 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." (Prunty, supra, 62 Cal.4th at p. 71.) There are multiple ways to show such a connection, such as "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." (Ibid.) Ultimately, the People must show the defendant sought to benefit the "same 'group' that meets the definition of section 186.22[, subdivision] (f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities . . . ." (Prunty, at p. 72.)
We conclude the evidence presented at trial sufficiently established the existence of a criminal street gang under Prunty because the prosecution offered evidence of an organizational connection between the Sureño umbrella group and its Sacramento subsets. The gang expert testified that the Mexican Mafia asserts authority over all the Sureños, including setting rules such as banning drive-by shootings and requiring payment of "taxes" to the Mexican Mafia, in exchange for protection of incarcerated Sureños. In addition, the prosecution established an organizational connection among the Sacramento Sureño subsets. The gang expert testified that members of different subsets are commonly seen together in the same vicinity and territory, "getting along." "As long as [a gang member is] in good standing with the [Sureño] gang, they're welcome at any of their gang hangouts." Significantly, the Sacramento Sureño subsets "sit at the same table" and work together, including holding monthly meetings to "talk business." Defendant's accomplice, Madrigal, also testified that the Angelino Heights and Howe Park Sureños have a historical alliance and share guns among themselves and with the Santa Anita Park Sureñas.
That the Sureño subsets were working together and had an organizational connection is further indicated by the testimony of Madrigal who explained defendant and members of two other Sureño subsets met and planned the crimes at issue here to "benefit . . . the gang" and "get money so we could get drugs and guns." Even if the criminal proceeds went to inmate Zamora, according to Detective Guzman, the gang would still benefit because committing the crimes would enhance the gang's status within the community, help the gang get better at committing crimes, and bring the gang into the good graces of the Mexican Mafia.
Accordingly, there was substantial evidence upon which the jury could reasonably conclude the larger Sureño gang qualified as a criminal street gang, and that defendant committed the crimes at issue here for the benefit of the larger Sureño gang with the intent to further the gang's activities. We find no error.
DISPOSITION
The judgment is affirmed.
BUTZ, Acting P. J. We concur: HOCH, J. RENNER, J.