Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge, Super. Ct. No. 06CF0204.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant Kenney Dwayne Watkins.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant Dominick Edwards.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, David Delgado-Rucci and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
Appellants Kenney Dwayne Watkins and Dominick Edwards were convicted of numerous crimes stemming from their botched robbery of a Newport Beach jewelry store. Watkins contends his conviction for street terrorism, as well as the jury’s finding he acted for the benefit of a criminal street gang, should be overturned for lack of evidence. He and Edwards also contend the court violated their Sixth Amendment rights by sentencing them to an aggravated term of imprisonment. Although we reject Watkins’ challenge to the sufficiency of the evidence, we find appellants’ sentencing claims to be meritorious. We will reverse their sentences and affirm the judgment in all other respects.
On October 14, 2004, Edwards visited James Harstein’s jewelry store in Newport Beach. He asked Harstein about a platinum chain but left the store without buying anything.
About two weeks later, on October 27, Edwards returned to the store with Watkins. They arrived at around 10:30 a.m., shortly after Harstein opened the store with his sister Barbara Radus. Edwards told Harstein he wanted to buy the chain he had previously inquired about. But instead of producing a credit card, he stuck a gun in Harstein’s back, grabbed him by the collar and took him into the backroom. There he slammed Harstein up against the wall and told him to “be cool.” Meanwhile, Edwards seized Radus and forced her into the backroom at gunpoint. He then returned to the front of the store and started emptying the jewelry cases into a large plastic trash bag.
Watkins told his captives not to move. He said he did not want to hurt them and everything would be okay if they just did what he said. While he was tying Harstein’s hands behind his back, Radus surreptitiously hit the silent alarm in the room. Then Watkins pushed her to her knees and tied her hands together. After that, he put his gun to Harstein’s head and asked him where the surveillance tape was located. Harstein told him it was under the desk in a VCR, and Watkins proceeded to remove a tape from that machine. (What Watkins did not know is that the store was actually being monitored by a computer system that videotaped the whole ordeal.) Pointing his gun at Harstein, Watkins asked him for the combination to the safe. Harstein said it was unlocked, and after fumbling with the safe for some time, Watkins was finally able to get it open. He then began emptying its contents (cash and jewelry) into a trash bag.
Edwards was still up front, emptying display cases. At one point, he let a third man, Herbert Kirkwood, into the store who joined Edwards in this endeavor. Then the phone rang and Watkins held it up to Harstein’s ear. Although Harstein did not tell the caller what was happening, she was able to discern he needed help because he kept repeating the wrong store hours. A short while later, Watkins yelled out, “I hear birds,” a reference to a helicopter that was hovering overhead. With that, appellants and Kirkwood hastened their pillaging. Then they ran out the back of the store, where a police officer was positioned. The officer arrested Edwards and Kirkwood, but Watkins ran next door to a gelato shop.
Kirkwood was tried separately from appellants.
Watkins entered the rear of the shop carrying a gun and a trash bag. After corralling all the workers in the front of the store, he demanded their car keys. Kirstin Seymour surrendered hers and pointed out her car in the parking lot. Seeing the police there, Watkins headed into the kitchen, but by that time, the police had the place surrounded and took Watkins into custody. They found his gun, an unloaded semiautomatic, at the gelato shop, and Edwards’ gun, a loaded .38 revolver, by the jewelry store. They also found gloves and duct tape on Edwards.
During an interview with Detective Keith Krallman, Watkins said he was a member of Nuthood Watts (NHW), a gang which is affiliated with the Crips. Krallman took this to mean Watkins was an active member of the gang, but Watkins claimed, “I don’t gang bang anymore.” He said he came down from Watts to rob the jewelry store because his wife was expecting a baby and they needed the money. He said he no longer lives in Watts, but he returned there the night before the robbery and was present when the others planned it out. He maintained he did not know Edwards before this time.
Los Angeles Gang Detective Daniel Tobin testified NHW is based in Watts, but gang members generally do not limit their criminal activity to their home turf. Rather, they will commit crimes anywhere they can, in order to spread fear and enhance their reputations. Indeed, Tobin said that to increase their status in the gang and in the gang community, members must “put in the work,” i.e., show “they are willing to rob for the gang, shoot for the gang, kill for the gang, and die for the gang.” According to Tobin, the primary activity of NHW is selling narcotics, but they also commit other crimes. For instance, one member committed an assault with a deadly weapon in 2003 and another committed a robbery in 2004.
Tobin testified Watkins has been contacted by the police on numerous occasions. In 1998 and 2002, he was arrested in the hub of NHW’s territory for selling narcotics and committing assault with a firearm, respectively. Police contacts in 2002 and 2003 indicate he was a known gang member, and during field interviews in 2004 he admitted membership in NHW. He also has “NHW” tattooed on his arm and another tattoo with three stripes, which indicated to Tobin that Watkins has “earned his stripes” for the gang.
Tobin testified Edwards did not have a history of gang involvement. However, he believed Watkins and Kirkwood were active members of NHW at the time of the robbery and committed the offense in association with each other. He also believed the crime would have benefited NHW by providing financial gain for the gang and enhancing its reputation for violent criminal activity. He said that while gang members generally do not commit crimes with nongang members, it does happen sometimes, and the fact Edwards was not a gang member would not alter his opinion about the robbery being gang related.
Edwards testified he went to Harstein’s store because Harstein owed him money for a chain he had sold to Harstein. When Harstein refused to pay up, he began riffling through the store in search of the chain. Edwards testified he never had a gun and never took any jewelry. Asked to explain the jewels that were found in his pocket, he claimed the police planted them there.
The jury convicted appellants of robbing Harstein and Radus and found true the allegation Watkins acted for the benefit of NHW in so doing. The jury also found Watkins guilty of robbing and attempting to carjack Seymour, street terrorism and unlawfully possessing a firearm. The court sentenced him and Edwards to 19 and 17 years in prison, respectively, including the upper term for the Harstein robbery.
I
Watkins claims there is insufficient evidence he was an active participant in NHW or acted for the benefit of that gang, and therefore his conviction for street terrorism and the jury’s true finding on the gang allegations must be reversed. We cannot agree.
“‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We do not reweigh the evidence or revisit credibility issues; rather we presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We must uphold the judgment unless “‘“upon no hypothesis whatever is there sufficient substantial evidence to support”’” it. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1508.)
In order to be guilty of the substantive crime of street terrorism, the defendant must, inter alia, “actively participate” in a criminal street gang. (Pen. Code, § 186.22, subd. (a).) Active participation means involvement that is more than nominal or passive. (People v. Castenada (2000) 23 Cal.4th 743, 747.) The gang enhancement is triggered when the defendant commits a felony “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 . . . .” (Pen. Code, § 186.22, subd. (b)(1).)
Watkins contends the evidence shows he committed the robbery for his own, not NHW’s, benefit and when the crime occurred he was not an active member of that gang. He did make statements to that effect in his post-arrest interview, but he also told police he was in NHW and was known in the gang as “Midnight.” Therefore, it cannot be said that his claims regarding gang membership were consistent and free of ambiguity. It is clear the jury did not find Watkins’ exculpatory statements to be believable, and as noted above, we are not at liberty to second-guess this determination.
Watkins, it turns out, has two gang tattoos and was determined to be an NHW member on several prior occasions. In fact, in the months leading up to the robbery, he twice admitted to the police that he is a member of NHW. And one of the people who assisted him in the robbery, Kirkwood, is also in the gang. Edwards had no history of gang involvement, but in Tobin’s opinion, that was not determinative of Watkins’ status and motive because sometimes — albeit infrequently — gang members commit crimes with people who are not in their gang. Furthermore, the evidence shows that while Watkins no longer lived in Watts on the day of the robbery, he did return there the night before and was present when the crime was planned. Tobin took this to mean Watkins never left NHW or he rejoined the gang for purposes of committing the robbery; either way, he was, in Tobin’s view, an active member when the crime occurred. Tobin also believed the robbery was intended to benefit NHW by providing financial support for the gang and enhancing its reputation for lawlessness. He described the crime as a brazen attempt to acquire money and publicize NHW’s willingness to commit violent criminal acts.
The jury was free to believe or disbelieve Tobin. Taken together with the other facts of the case and construed in favor of the judgment, his testimony is sufficient to support the jury’s determination Watkins was an active participant in NHW at the time of the robbery and committed the crime to benefit that gang. Accordingly, we reject his challenge to the sufficiency of the evidence.
II
The trial court sentenced appellants to the upper term for robbing Harstein, based on its findings Harstein was “particularly vulnerable,” the crime “indicated planning and sophistication,” and it involved “aggravated violent conduct.” We agree with appellants that this sentencing decision was unconstitutional.
“[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856, 863-864].) While this rule does not apply to “a fact admitted by the defendant” or “to the aggravating fact of a prior conviction” (People v. Sandoval (2007) 41 Cal.4th 825, 836-837), neither of those exceptions apply here. Therefore, imposition of the upper term implicated appellants’ Sixth Amendment right to a jury trial. (Id. at pp. 837-838.)
The Attorney General argues appellants forfeited this issue by failing to raise it at the sentencing hearing. However, at that time, 2006, Cunningham had yet to be decided, and our Supreme Court had determined, albeit incorrectly, that California’s Determinate Sentencing Law did not violate the Sixth Amendment. (See People v. Black (2005) 35 Cal.4th 1238.) Given this set of circumstances, it would have been futile for appellants to object on Sixth Amendment grounds, and therefore, as our Supreme Court has recognized, the forfeiture rule does not apply. (People v. Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)
Alternatively, the Attorney General argues there was no Sixth Amendment violation in this case because, “The jury found appellants guilty of robbery, and the findings that the victims were vulnerable and the crime was sophisticated were inherent in that verdict.” The Attorney General does not explain this argument, and we find it unconvincing. Robbery is defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, § 211.) Although the jurors found appellants committed this offense, their verdict in this regard does not speak to the particular manner in which the crime was committed or whether the victims were especially vulnerable. Therefore, the verdict does not provide a sufficient basis upon which to justify the trial court’s sentence. By sentencing appellants to the upper term based on the preponderance of the evidence standard, the trial court violated appellants’ Sixth Amendment rights. (See People v. Sandoval, supra, 41 Cal.4th at pp. 835-838.)
Still, as the Attorney General points out, the denial of the right to a jury trial on aggravating circumstances is subject to harmless error analysis: “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (People v. Sandoval, supra, 41 Cal.4th at p. 839.) However, on the facts of this case, we cannot so conclude.
“The obvious purpose of increasing punishment based on victim vulnerability is to deter criminal conduct that seeks to exploit the particularly vulnerable victim.” (People v. Spencer (1996) 51 Cal.App.4th 1208, 1223.) By virtue of their valuable inventories, jewelry store operators are no doubt particularly desirable targets for thieves. But that does not make them particularly vulnerable. Here, the victims had a silent alarm system in place to summon the police, who arrived before appellants even left the store. They also had a computerized system photographing the store. While there was no indication the defendants knew about that system they clearly assumed a video camera had been installed – something that made the victims here less vulnerable than many. While Harstein and Radus were certainly subjected to the possibility of great harm during the robbery, reasonable minds could differ as to whether they were especially defenseless or unprotected. (See People v. Clark (1990) 50 Cal.3d 583, 638 [the “particularly vulnerable” sentencing factor applies when the victim is vulnerable in a special or unusual degree and is defenseless, unguarded or unprotected from defendant’s criminal activity].) The degree of planning and sophistication that was involved in the robbery is also debatable. Edwards quite clearly cased the store before the robbery and enlisted Watkins and Kirkwood to carry out the crime. Appellants also had guns, gloves and tape, further demonstrating their preparedness. But the manner in which they carried out the robbery was rather helter-skelter. Watkins was clueless about the surveillance system and had great difficulty getting the safe open, even though it was unlocked. It also appears appellants dumped the jewelry into garbage bags they acquired from trash containers on the premises. And Watkins did such a poor job tying the victims’ hands that they were able to wiggle free as soon as he left the store. While not determinative, these are not the marks of sophisticated robbers.
Appellants were rough with the victims, to be sure, but whether a jury would find beyond a reasonable doubt that they engaged in “aggravated violent conduct” is questionable. A jury certainly could so find, under the facts presented. But we cannot be confident beyond a reasonable doubt that it would do so. Therefore, the violation of appellants’ Sixth Amendment jury rights cannot be considered harmless. (See People v. Sandoval, supra, 41 Cal.4th at pp. 843-853.)
Appellants contend this conclusion mandates that their upper term sentence be reduced to the midterm sentence. However, the correct procedure is to remand the matter to the trial court for resentencing under the newly amended sentencing laws and Rules of Court, as explained by our Supreme Court in People v. Sandoval, supra, 41 Cal.4th at pages 843-853. Under those laws and rules, the trial court will have the discretion to select among all three available terms — upper, middle or lower — in sentencing appellants anew. (Ibid.) Appellants contend this will expose them to double jeopardy, but as an intermediate appellate court, we are powerless to depart from the procedure dictated by the Sandoval court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
Appellants’ convictions are affirmed. Their sentences are vacated and the matter remanded for resentencing consistent with People v. Sandoval, supra, 41 Cal.4th at pages 843-853.
WE CONCUR: SILLS, P. J., MOORE, J.