Opinion
C080040
07-02-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANTHONY WRIGHT, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12F7904)
A jury acquitted defendant Joseph Anthony Wright of making a criminal threat, but found him guilty of four counts of assault with a firearm (counts 8-11), one count of carrying a loaded firearm in a public place by a gang member (count 13), and one count of discharging a firearm in a school zone (count 14). The jury found true that defendant committed the crimes for the benefit of, at the direction of or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members. The jury also found true allegations with respect to counts 8 through 11 that defendant personally used a firearm. The jury did not find true the allegation with respect to count 9 that defendant personally inflicted great bodily injury.
Other counts and allegations were dismissed before the jury began deliberations.
The trial court sentenced defendant to a total term of 23 years and four months in prison.
On appeal, defendant contends the evidence at trial was insufficient to support the imposition of the gang enhancement under Penal Code section 186.22, subdivision (b)(1). Defendant also contends this case should be remanded to allow the trial court, in light of recent statutory changes, to consider striking the firearm enhancements imposed on four counts under Penal Code section 12022.5. We disagree and affirm the judgment.
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
On October 12, 2012, D. Ryles stormed out of a party on foot after having too much to drink. Some of his friends, including Talon, Bradley and Cristina, followed Ryles to make sure he was alright. Ryles was yelling and making a scene, and nearby residents asked the group to quiet down. Defendant was at one of these residences with Emilio and Eddie. Defendant told Emilio and Eddie he was going to record what was going on with Ryles and his friends. He told the police later, "I remember Eddie saying don't get beat up. And I was just like dude, I know how to fight." Defendant walked across the street and started recording a video on his phone. Cristina noticed this and asked defendant to stop. Then, Talon asked defendant why he was recording and told him to put the phone down.
Defendant put his phone away, but pulled out a gun and put it to Talon's head. Talon explained that, "being intoxicated, I was just, like, 'What? Are you going to shoot me?' You know, not thinking it was going to happen at all." Defendant hit Talon on the back with the gun. Next, defendant hit Talon on the head and hands as he tried to cover himself. When defendant did so, the gun went off. Talon and Cristina jumped over a fence and hid. Defendant turned and shot Ryles in the ankle. Ryles fell to the ground. Bradley fell to his knees holding Ryles. Defendant pointed the gun at the two men and said, "Say something else." Bradley protested that they had not said anything. Defendant kicked Ryles in the face and repeated, "Say something else." A witness reported that defendant said, "That's what you get, you little bitch." Other witnesses said defendant left the scene laughing.
Bradley later found a bullet in his shoe. A shell casing and a bullet fragment were found at the scene.
In an interview at the Redding Police Department, defendant explained that his gun accidentally fired three times, and that he gave the gun away to a Sureño gang member the following day.
On October 16, 2012, police officers conducted a search of defendant's bedroom. Defendant is originally from the San Fernando Valley and had been staying with Emilio for about a week and a half. As relevant to this appeal, officers found a copy of an article about the shooting in defendant's closet.
On November 1, 2012, officers searched the entire apartment. They found a book written by a former member of the Mexican Mafia. Blue bandanas were found in both bedrooms, including one wrapped around five .38-caliber shells in Emilio's room. Most of the clothing in the apartment was either blue or black. The officer who testified about this search did not recall seeing any red clothing.
The parties stipulated "[t]hat the Sureño street gang and its subsets are in fact a criminal street gang" as defined in section 186.22, subdivision (f). Department of Corrections and Rehabilitation Special Agent Paul Sprague testified as an expert on the Sureño gang. He explained its relationship to the Mexican Mafia and that Sureños generally wear blue while their enemies—the Norteños—generally wear red. Sureños often wear blue bandanas in particular.
Redding Police Officer Levi Solada testified that gang members normally get tattoos depicting areas they are from and describing what gangs they are associated with. Defendant had "SUR," "YB," "YBR" and three dots tattooed on his left hand. Officer Solada and Special Agent Sprague testified "SUR" was a reference to the Sureños and "YB" and "YBR" referred to the Young Boys RIFA, a subset of the Sureños from Los Angeles that defendant belonged to. Defendant also had "NK" tattooed on his left hand for "Norteño Killer." On his face, defendant had tattoos of the letter "Y" and three small dots. Special Agent Sprague explained the three dots symbolize the term "mi vida loca" and embracing the gang lifestyle. Defendant also had numerous other tattoos on his body that conveyed membership in the Sureño gang.
The parties stipulated that specific graffiti appeared near the location of the shooting between October 2, 2012, and October 3, 2012. The graffiti contained various symbols associated with the Sureños. Special Agent Sprague testified Sureños use graffiti to mark their territory. He also said the "YB" depicted in the photograph of the graffiti was in similar script to the "YB" on defendant's body.
Special Agent Sprague opined that defendant was an active Sureño gang member. Defendant was living with Emilio, who had previously admitted to a gang enhancement under section 186.22, subdivision (b)(1).
Special Agent Sprague testified that Sureños use violence to demonstrate and promote the gang's strength. Violence also enhances an individual's reputation: "An individual who is quick to violence and does it with courage and demonstrates their loyalty is honored within the gang. The slang term is 'street cred' or 'street credibility[.'] It instills a sense of fear in victims and witnesses and in people who hear about the reputation of the gang. In other words, the thing to fear is the violence of the gang. That's the thing they point to and say, 'Look what this gang is capable of.' "
The prosecution asked Special Agent Sprague hypothetical questions mirroring the facts of these crimes, and he opined that the crimes were committed for the benefit of, at the direction of or in association with a criminal street gang. He explained that, based on the disrespect perceived, the crime benefited the gang by protecting its reputation and territory. Witnesses would remember the violent act and the gang's reputation would grow after the witnesses learned the identity of the attacker. The gang's reputation is important because it creates fear in the general public and allows the gang to commit its primary criminal activities with greater impunity. Violent crimes in particular further the activities of the Sureño gang because of their severity. They serve as a warning to enemies and members of the community, and instill fear in those who hear what the gang has done. Additionally, possessing an article about the crimes allows a person to demonstrate to other gang members that he performed the activity.
II. DISCUSSION
A. Gang Enhancement
Section 186.22, subdivision (b)(1) imposes an additional term of imprisonment on "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." For purposes of this sentence enhancement, a "criminal street gang" is defined as "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." (§ 186.22, subd. (f).)
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we 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, 59-60.)
Defendant contends there is no substantial evidence that he committed his crimes either "for the benefit of, at the direction of, or in association with" Sureños or "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) He relies on cases that reject a gang expert's opinion on one or both of these elements based on insufficient evidence in the record to support it. (See People v. Franklin (2016) 248 Cal.App.4th 938, 949-952; People v. Rios (2013) 222 Cal.App.4th 542, 573-575; In re Daniel C. (2011) 195 Cal.App.4th 1350, 1363-1364 (Daniel C.); People v. Ochoa (2009) 179 Cal.App.4th 650, 662-665; People v. Ramon (2009) 175 Cal.App.4th 843, 849-853 (Ramon); In re Frank S. (2006) 141 Cal.App.4th 1192, 1199.) "Reviewing the sufficiency of evidence, however, necessarily calls for analysis of the unique facts and inferences present in each case, and therefore comparisons between cases are of little value." (People v. Rundle (2008) 43 Cal.4th 76, 137-138, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421.)
Of the authorities defendant relies upon, Daniel C., supra, 195 Cal.App.4th 1350 is perhaps the most illustrative of the difficulty of making such comparisons. There, after the minor defendant's two companions left a supermarket, he picked up a large bottle of alcohol and attempted to leave without paying for it. (Id. at p. 1353.) When the assistant store manager approached, the defendant raised the bottle and it broke against a nearby machine. (Ibid.) Defendant hit the manager "on the ear with the neck of the bottle and ran out of the store." (Ibid.) The appellate court explained that the prosecution's gang expert based his opinion that the defendant had "committed the robbery to further the interests of the Norteño gang on the premise that it was a violent crime, and gangs commit violent crimes in order to gain respect and to intimidate others in their community. But, nothing in the record indicate[d] that [the defendant] or his companions did anything while in the supermarket to identify themselves with any gang, other than wearing clothing with red on it. No gang signs or words were used, and there was no evidence that [the manager] or any of the other persons who witnessed the crime knew that gang members or affiliates were involved. Therefore, the crime could not have enhanced respect for the gang members or intimidated others in their community, as suggested by [the expert]." (Id. at p. 1363.) In relying on this authority, defendant notes the lack of evidence that gang signs or words were uttered during the commission of his crimes or that the witnesses knew he was a gang member. But more important than the absence of any specific piece of evidence in Daniel C. is the fact that there was a general insufficiency of evidence to support the gang expert's opinion and the specific idea that the crime would enhance respect for defendant's gang. (See also People v. Rios, supra, 222 Cal.App.4th at pp. 574-575 [expert testimony in response to hypothetical questions assuming only that person was a gang member who committed charged offense was insufficient to support inference defendant had specific intent required for imposition of gang enhancement].) Here the prosecution's expert presented substantial evidence to support his conclusion the crime would enhance respect for defendant's gang. For this reason the present case is distinguishable from Daniel C. and the other authorities upon which defendant relies.
As relevant to our analysis, the prosecution's gang expert based his opinion that the crimes were committed for the benefit of a criminal street gang on factors including that the described crimes were committed by a gang member who: (1) was new to the area, (2) was clearly marked with gang tattoos, (3) was hanging out with other members of his gang, (4) came into contact with a group of people in public, (5) was disrespected by one of the group members, and (6) kept an article about the shooting. As set forth above, these factors were supported by specific evidence presented in this case. Special Agent Sprague's testimony was not based solely on speculation and did not simply inform the jury how he felt the case should be resolved. (See People v. Ochoa, supra, 179 Cal.App.4th at pp. 662-663; Ramon, supra, 175 Cal.App.4th at p. 851; In re Frank S., supra, 141 Cal.App.4th at p. 1199.) Further, "[e]xpert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[ ] criminal street gang' within the meaning of section 186.22[, subdivision ](b)(1)." (People v. Albillar, supra, 51 Cal.4th at p. 63.) Special Agent Sprague testified that crimes like the ones defendant committed benefit the gang by protecting its reputation and territory, creating more fear in the general public, and allowing the gang to commit its primary criminal activities with greater impunity. He also explained that violent crimes in particular further the activities of the Sureño gang because of their severity. They serve as a warning to enemies and members of the community, and instill fear in those who hear what the gang has done. As the People note, defendant's excessively violent reaction to being told to put away his phone also supports the jury findings. When defendant stopped shooting, he essentially dared his victims to speak. Importantly, defendant committed his crimes in an area that had recently been marked as Sureño territory—possibly by him. Taken as a whole, the facts in this case constitute substantial evidence that defendant committed his crimes for the benefit of the Sureños, with the specific intent to further criminal conduct by Sureño gang members.
The tattoos on defendant's hands and face were seen by at least one witness. The fact there was no testimony that any of the witnesses understood their meaning does not leave the gang expert's testimony without support. --------
We reject defendant's additional claim that the prosecution failed to make a sufficient showing of an associational or organizational connection among gang subsets under People v. Prunty (2015) 62 Cal.4th 59 (Prunty). In Prunty, our Supreme Court "decide[d] what it means to constitute an 'organization, association, or group,' " within the meaning of section 186.22, subdivision (f). (Prunty, supra, at p. 71.) It 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." (Ibid.) That holding is not applicable here because defendant stipulated to the existence of a single criminal street gang as defined in section 186.22, subdivision (f). The jury was instructed that the parties had stipulated that the following is true: " 'That the Sureño street gang and its subsets are in fact a criminal street gang[.] [¶] A criminal street gang is defined in [section] 186.22, subdivision (f) . . . as . . . an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities commonly referred to as predicate crimes, the commission of one or more of the criminal acts enumerated [in] paragraphs 1 to 33 inclusive of [section] 186.22, subdivision (e) . . . having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or having [sic] engaged in a pattern of criminal gang activity.' " (Italics added.) Thus, no additional showing was required by the prosecution. B. Senate Bill No. 620
Defendant filed a motion requesting that we recall the remittitur to allow briefing on recent amendments to sections 12022.5 and 12022.53, which give the trial court discretion to strike firearm enhancements. We granted defendant's motion, recalled the remittitur, and ordered supplemental briefing. The supplemental brief filed by the People argues the remittitur should not have been recalled and, in the alternative, this case should not be remanded because the record demonstrates that the trial court will not strike the firearms enhancements. Because we agree with the People's substantive argument that remand is not appropriate in this case, we do not address their argument that the remittitur should not have been recalled.
Prior to January 1, 2018, an enhancement under either section 12022.5 or 12022.53 was mandatory and could not be stricken in the interests of justice. (See former §§ 12022.5, subd. (c) & 12022.53, subd. (h); (Stats. 2010, ch. 711, § 5); People v. Felix (2003) 108 Cal.App.4th 994, 999.) Senate Bill No. 620 amends sections 12022.5, subdivision (c) and 12022.53, subdivision (h) to permit the trial court to strike firearm enhancements imposed under sections 12022.5 and 12022.53. Under the new provisions, "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, §§ 1 & 2.)
We agree with the parties that Senate Bill No. 620 applies retroactivity. If an amended statute "lessening punishment becomes effective prior to the date the judgment of conviction becomes final then . . . it, and not the old statute in effect when the prohibited act was committed, applies." (In re Estrada (1965) 63 Cal.2d 740, 744; see also People v. Francis (1969) 71 Cal.2d 66, 75.) And here, the amendment has taken effect and defendant's conviction is not yet final. (See People v. Vieira (2005) 35 Cal.4th 264, 306 ["for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed"].)
Notwithstanding their agreement that the changes made by Senate Bill No. 620 can apply retroactively, the People argue that no purpose would be served by doing so here. We agree that remand is not appropriate in this case. When the trial judge imposed the four firearm enhancements under section 12022.5, subdivision (a), he selected the aggravated term of 10 years instead of the low term of three years or the middle term of four years. The People argue that the fact the trial judge exercised his discretion to maximize the firearm enhancements "conclusively demonstrates" that he would not exercise his new authority to eliminate the firearm enhancements if the case were remanded. They also point out that the trial court refused to strike the 10-year gang enhancement despite a request from defense counsel that he do so. Finally, the People highlight that the trial judge acknowledged he was imposing the maximum sentence possible and he expressed satisfaction that the sentence fit the crime: "[The sentence imposed] is the maximum term that I could impose by law under these facts, but I believe that is the term that's warranted for the conduct that was committed here."
The record in this case is unusually robust on the question of whether the trial court would exercise discretion to reduce the firearms enhancements. Given this record, we agree with the People that no purpose is served by remand because the trial judge was not inclined to exercise his existing discretion to reduce the sentence defendant was facing.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
MAURO, Acting P. J. /S/_________
MURRAY, J.