Opinion
NOT TO BE PUBLISHED
Appeals from a judgment of the Superior Court of San Bernardino County Nos. FWV701821, FWV702777, Michael R. Libutti, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Theodore M. Cropley and Rhonda Cartwright-Ladendorf, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
A jury found defendant Bryan Lamar Webb guilty of second degree commercial burglary, grand theft and conspiracy to commit a crime. The jury also found it to be true that all three crimes were committed for the benefit of a criminal street gang. The court sentenced defendant to six years in prison. Substantial evidence supports the gang enhancements. We affirm.
I
FACTS
On August 2, 2007, at around 4:00 a.m., John Hardesty was sitting in a parking lot near a Spires Restaurant. Two vehicles entered and “pulled backwards across the parking lot.” There were no other cars in the parking lot. Three people wearing hoods got out of the cars, ran across the parking lot and pried open the back door of the restaurant. Hardesty called 911. At some point, a fourth man went inside the restaurant and stayed for a few seconds. One of the men came out of the restaurant carrying a safe. All four men placed the safe in the back seat of one of the cars.
The Spires’s manager closed down the restaurant at 11:00 p.m. the previous evening and left around midnight. The alarm company telephoned him “like, 4:30.” At the restaurant, he found the safe and the cash register drawer were missing.
The police found defendant in a trash bin outside a Home Depot with a cell phone and a car’s remote control in his hands. The call history on the cell phone showed calls made that morning: “At 2:54 a.m., on the second, called a phone number with area code 562, and then at 3:05 a.m. called an area code at 562. And then, at 4:50 a.m., called a phone number at 562 area code.”
When defendant was arrested, he told the officer he had previously been shot by rival gang members, and that he was “kicking it with the Insane Crips.” A little later, he said “he was with the Baby Insane Crips.” He had a tattoo that read “LBC” for Long Beach Crips, and another tattoo of a Cleveland Indian. In a search of defendant’s home, the police found two letters with “gang writing or affiliation written on the bottom.” On one, “187” was written. A detective said the number “is the Penal Code section for murder.”
Marquise Davis was found hiding in a planter. On the ground nearby, a hooded sweatshirt was found. In his vehicle, the police found “what appeared to be a floor mounted safe” and “a cash drawer that looked like it belonged to a cash register.” A crowbar was next to the cash drawer.
Chris Zamora, a police officer with the City of Long Beach, testified as a gang expert. He said the Baby Insane Crips is a clique within the larger Crips gang. Their logo is the Cleveland Indians.
The expert said the gang is engaged in a pattern of criminal activity and that the primary activities of the Insane Crips “for the whole gang is going to be the sales of narcotics. They’re in the narcotics business. Specific to rock cocaine and marijuana as well as different pills — different illegal pills, they’re heavily involved. But they’re so large and they’ve been around for so long, they’ve evolved into other criminal activity such as robberies, burglaries, strong armed robberies for cell phones, which is very common nowadays, auto theft, illegal weapons possession, illegal sales of weapons. A wide range of criminal activity. And they’ve just expanded it, so a lot of them specific also to counterfeiting, counterfeiting currency. This is another — another different crime they’re involved — they’re beginning to engage in.”
Certified convictions of three Insane Crips gang members, Jeremy Simsking for attempted robbery, Jonathan Thomas for sale of rock cocaine, and Marquise Davis for burglary, were admitted into evidence. The expert said that the Insane Crips clique and the Baby Insane Crips clique are “all one gang.” The gang expert examined a photograph and said a large “B” tattooed on Davis’s neck represents the Baby Insane gang.
Regarding the significance of tattoos, the expert said: “This is not only to identify himself with the gang community... it’s also for the individual, for the citizens who live in that community. [I]t does instill fear within citizens who live there. These are people, hard working people not involved in gang activity, but they know what’s going on in their neighborhood, and they know that Baby Insane is a vicious gang. They see this individual with a big B on his neck. It can be very intimidating.” He said “there’s consequences if you put the tattoos on and you’re not a member” and that tattoos have to be earned by “a couple of different ways. One would be to commit a violent act within that showing to the other gang members you are hard. You’re willing to take that kind of action for the gang. The other one would be to commit a violent crime, such as a robbery, or burglary or some kind, or something that shows you’re willing to do — can commit criminal activity and crimes for the gang.”
Zamora said Davis is an active member of the Insane Crip gang, “specific to the West Side Baby Insane gang.” He added: “I am very confident in that opinion.”
With regard to defendant’s LBC tattoo, the gang expert said “several Crips gangs would use that.” The expert explained the Cleveland Indians logo on one of the letters found in defendant’s home also has a tear drop on it, and that “means within the gang community that means you killed somebody.” The expert read the two-page letter out loud to the jury, and his explanation of the gang codes and symbols within it, consumed numerous pages of transcript. He also went over the second letter found in defendant’s home, and then opined: “I believe that whoever wrote this as well as whoever corresponding to be actively involved in gang activity, and in fact, to be an active gang member.”
There are references to both Corcoran State Prison and jail in the letters, and it appears they may have been written by someone who is incarcerated as one letter says “went to jail trying to ride. And I’m here.” The prosecutor asked if there were any requests made of defendant in the letters, and the expert responded: “Yes. I believe it’s to send them money and send them naked — or pictures of females in their bras or bikini.”
With regard to the call history on the phone defendant had in his hand when he was arrested, Zamora said the area code for Long Beach telephone numbers is 562. He said gang members having problems routinely call other gang members. The expert explained: “When they’re doing crimes routinely, you’re going to want to have another gang member with you. You want to have somebody that you trust while committing a criminal act. You want somebody to back you up, someone you can trust.” He said defendant is “an active member of the Insane Crips, Baby Insane gang.”
The prosecutor asked the gang expert if he had an opinion as to whether the instant crime “would benefit any organization?” Zamora responded: “I believe the crimes that took place, this burglary was committed for the direct benefit of the Insane Crips Baby Insane Crips gang. I believe based on the fact that the illegal gains were to go back to the gang, were to be furnished throughout the gangs to help the gang on this ongoing gang, this gang that’s been around for four decades, any organization of any kind needs some type of funding to keep it going. You can’t keep anything going that long four decades, especially with law enforcement pressure on them the whole time, without some type of funding. This is how the funds are gained. Also, I believe the fact that they were two individuals from the same gang, and I believe other individuals from the same gang were involved in this crime. This is where it comes to the point where [you’re] expanding the gang’s territory. [¶] Currently in the City of Long Beach, we have an injunction, an injunction saying certain gang members can’t be in certain gang areas. You can’t as a group sit on the corner to avoid the sales of narcotics, because of that, because of the intense pressure by law enforcement the City of Long Beach. [¶]... [¶]... Because of this intense pressure with an injunction, we’re forcing the gang members to not commit crimes in the City of Long Beach. Not as easy anymore as it used to be. So now the gang is looking for new opportunities, new territory. Virgin territory where other gangs are not as strong where they can expand and take over and this is what I believe is happening. So this is not just an individual crime, an individual act. This is an act conducted by several gang members of the same gang directed at a certain specific crime that they have experience in a new territory that I believe they’re going to try to expand into where they’re not known. Law enforcement out here doesn’t know Insane Crips, which is why I’m here, why I say — why they had to contact me. I believe all of that was done for and in the furtherance of — in furtherance of the Insane Crips.”
Zamora continued: “I believe they’re looking to expand, I believe, due to our pressure within law enforcement within the L.A. County Sheriff’s Department, the Federal Bureau of Investigations, the Secret Service and the Long Beach Police Department. Due to that pressure, they’re looking to expand into other territories and move and take over, and this is a prime area out here in San Bernardino County and Ontario, where the gang problem hasn’t reached the L.A. County escalation, and that’s what they’re looking to do. [¶]... [¶]... First and foremost, he’s with another gang member working together, helping each other. I believe there’s other gang members, that did get away all helping each other, I believe, based on notes, and other items that were put in as evidence, that illegal funds generated from this would go to individuals in prison, keep them comfortable as well as for other criminal acts within prison which they use the money for. I believe it’s for the ongoing organization for the direction of the organization as a whole.”
II
DISCUSSION
Gang Enhancement
Defendant contends there is a lack of substantial evidence to support the finding on the gang enhancement. The Attorney General notes defendant admitted he is a member of a criminal street gang, committed this crime with another gang member and was covered in Long Beach Crips tattoos.
In addressing challenges to the sufficiency of evidence, “the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — 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.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) The same standard of review applies to true findings on gang enhancement allegations. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.)
The gang enhancement statute under which defendant was convicted, Penal Code section 186.22, subdivision (b)(1), provides that “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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished” by an additional term. (All statutory references are to the Penal Code.) To establish the enhancement, “the prosecution must prove that the crime for which the defendant was convicted had been ‘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.’” (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.)
“In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (the STEP Act). (§ 186.20 et seq.) ‘The impetus behind the STEP Act... was the Legislature’s recognition that “California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. These activities, both individually and collectively, present a clear and present danger to the public order and safety and are not constitutionally protected.” (§ 186.21.)’ [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.)
The STEP Act prescribes increased punishment for a felony if it was related to a criminal street gang. (§ 186.22, subd. (b)(1).) “[T]o subject a defendant to the penal consequences of the STEP Act, the prosecution must prove that the crime for which the defendant was convicted had been ‘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.’ [Citation.]” (People v. Gardeley, supra, 14 Cal.4th at pp. 616-617.) In order to prove the elements of a criminal street gang enhancement, the prosecution may present and rely on expert testimony on criminal street gangs. (Id. at pp. 617-620; People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) Expert testimony about gang culture and whether a particular felony was committed for purposes of promoting or benefiting a gang may be relied upon so long as it is based on evidence presented at trial. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
The gang expert here testified defendant committed the instant crime for the benefit of the Baby Insane Crips gang. He said the gang, which has been ongoing for four decades, benefits from the profits of crime and requires funding to expand into new territory because they must act under a gang injunction in their territory in Los Angeles and Long Beach. It receives increased respect by way of instilling fear and intimidation into the community. The gang also needs money to keep incarcerated gang members comfortable in prison. Zamora also said the gang is involved with a wide range of criminal activities which includes burglaries. With regard to the phone calls to the 562 area code, made around the time of the crime on the cell phone defendant had in his hand when he was arrested, Zamora said gang members having problems routinely call other gang members. He said he was confident that Davis is also a member of the same gang and added that gang members usually commit their criminal acts with other gang members because they want to be with someone they trust.
Here the expert explained why and how defendant’s gang benefited from the instant crime, and why and how defendant committed the instant crimes for the benefit of his gang. Two Baby Insane Crips gang members were involved. The gang received increased respect by way of instilling fear and intimidation into the community. And the gang regularly benefited from the profits of crimes such as burglaries. In the record before us, we find there is substantial evidence the instant crime was committed for the benefit of the Baby Insane Crips. We do not find error.
Abstract of Judgment
Both parties request modification of the abstract of judgment to reflect that the sentences for counts two and three were stayed pursuant to section 654. We agree and order the clerk of the trial court to make this modification.
III
DISPOSITION
The judgment is affirmed. We direct the clerk of the trial court to amend the abstract of judgment to reflect the sentences for counts two and three were stayed. A copy of the amended abstract shall be forwarded to the Department of Corrections and Rehabilitation.
WE CONCUR: SILLS, P. J., FYBEL, J.