Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Los Angeles, Super. Ct. No. BA305864, Charles F. Palmer, Judge
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant Ernie Frank Rodriguez.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant Gerardo Zepeda.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellants Ernie Frank Rodriguez (Rodriguez) and Gerardo Zepeda (Zepeda) were convicted by jury of three counts of second degree robbery and one count of attempted second degree robbery. (Pen. Code, §§ 211, 664/211.) The jury found true allegations that the crimes were committed for the benefit of, at the direction of, or in association with, a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Zepeda admitted that he had served a prior prison term for a felony conviction. (§ 667.5, subd. (b).) The court sentenced Rodriguez and Zepeda to aggregate terms of 12 years and 13 years, respectively. Rodriguez and Zepeda challenge the sufficiency of the evidence to support the gang enhancement. We affirm.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The White Fence criminal street gang has 150 to 200 members or associates and claims the Boyle Heights area of Los Angeles as its territory. White Fence members and associates have committed a variety of crimes including robbery, assault, murder, rape, and burglary. The gang has several cliques, including "CDK." White Fence uses the initials "WF" and "CB" (for "Cerco Blanco," the Spanish term for White Fence).
Zepeda, a White Fence gang member, uses the moniker "Psycho." He has several gang tattoos, including a "W" on his right shoulder, an "F" on his left shoulder, and "WF" and "CDK" on other parts of his body. Rodriguez also belongs to White Fence and has several gang tattoos, including the letter "W" on the back of his left calf, the letter "F" on the back of his right calf, the letter "C' on his left arm, and the letter "B" on his right arm. He uses the moniker "Rocket." Zepeda and Rodriguez are in the CDK clique.
On June 16, 2006, victims Hector, his brother Oscar, and their cousins, Ramiro and Jaime, were walking along Whittier Boulevard at about 9:00 p.m. Rodriguez approached them from behind and asked where they came from. Hector understood the question to mean, "Which gang are you from?" Hector responded, "Nowhere." Rodriguez ordered Hector and his companions to go to a darker area under a nearby tree where the police could not see them. Fearing that Rodriguez would hurt them, Hector complied and his companions followed him. When Rodriguez whistled, Zepeda crossed the street to join him. Zepeda's gang tattoos were visible. Rodriguez told the victims to empty their pockets. When Hector removed his cell phone and some change from his pockets, Rodriguez grabbed it. Rodriguez also took Jamie's cell phone, his wallet and $20. Two of the victims heard Rodriguez announce that he was from White Fence.
Los Angeles Police Department Officer Mario Morales, an expert regarding criminal street gangs in the Hollenbeck Gang Enforcement Detail, was familiar with the White Fence gang. Morales considered a hypothetical situation based on the evidence presented at trial. Morales opined that the crimes were gang-related and were not committed purely for personal gain because both assailants belonged to the same clique within the gang and identified themselves as White Fence members during the robberies. He explained that gang members commit crimes within their territory to intimidate and frighten people, and facilitate the gang's commission of future crimes (drug sales, robbery, burglary and theft) for its financial gain. He opined that a gang name can be used as an intimidating weapon when members announce it to victims.
DISCUSSION
Both appellants argue that the evidence is insufficient to support the finding that they committed the crimes to promote a criminal street gang, as provided by section 186.22, subdivision (b)(1). Reviewing the record for substantial evidence (People v. Augborne (2002) 104 Cal.App.4th 362, 371), we conclude otherwise. Appellants have joined in each others' arguments, and we address them together.
Section 186.22, subdivision (b)(1), provides for an additional sentence to "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 . . . ." A "criminal street gang" is a group whose members "engage in or have engaged in a pattern of criminal gang activity." (Id. at subd. (f).)
"It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.]" (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).) Such evidence may include "testimony about the size, composition or existence of a gang, gang turf or territory, an individual defendant's membership in, or association with, a gang, the primary activities of a specific gang, motivation for a particular crime, generally retaliation or intimidation, whether and how a crime was committed to benefit or promote a gang, rivalries between gangs, gang-related tattoos, gang graffiti and hand signs, and gang colors or attire." (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657, citations & fns. omitted.)
To subject a defendant to the section 186.22, subdivision (b)(1), gang enhancement, the prosecution must prove that the crime for which the defendant was convicted was committed for the benefit of, at the direction of, or in association with any criminal street gang, and with the specific intent to promote, further, or assist in any criminal conduct by gang members. (Ibid.; People v. Gardeley (1996) 14 Cal.4th 605, 616-617.)
Appellants pose multiple reasons that the evidence is insufficient to support the gang enhancement. For example, they stress that there was no evidence that White Fence ordered them to commit the crimes, and neither of them flashed gang signs during the crimes. They offer no authority for the proposition that such evidence was essential to the jury's finding that they committed their crimes to promote their gang. The failure to flash gang signs is also of no consequence where Rodriguez announced his White Fence affiliation and Zepeda bore visible White Fence tattoos during the crimes.
Appellants also argue that the evidence suggests that the crimes were committed for their own benefit, and not to benefit the gang, because the quiet manner of their commission would not increase the gang's notoriety. This argument ignores the fact that people learn about crimes not only by witnessing them but also by hearing about them later. They also argue that the small amount yielded from the crimes suggests that appellants committed them for their personal gain. The evidence also supports the inference that the crimes were committed for the benefit of the gang. (See People v. Garcia (2007) 153 Cal.App.4th 1499, 1512; People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.)
In arguing the lack of sufficient evidence to support the gang enhancement, appellants rely on several inapposite cases. For example, in Frank S., supra, 141 Cal.App.4th 1192, the expert's opinion was the only evidence offered to prove that the defendant's criminal conduct benefited his gang. (Id. at p. 1199.) Here, in contrast, there was ample evidence independent of the expert's opinion from which the jury could find that appellants committed their crimes for the promotion of their gang: (1) the White Fence gang is a criminal street gang; (2) appellants belonged to that gang and its CDK clique when they committed their crimes; (3) the crimes took place within the gang's territory; (4) they committed the crimes in concert; (5) they fled the crime scene together; (6) Rodriguez told the victims he was from White Fence; (7) both appellants have White Fence gang tattoos; and (8) Zepeda displayed his gang tattoos. Substantial evidence supports the findings that appellants committed the crimes with the specific intent to promote criminal conduct by other gang members. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1198; In re Ramon T. (1997) 57 Cal.App.4th 201, 206-208; People v. Gardeley, supra, 14 Cal.4th 605, 619-620; People v. Sengpadychith (2001) 26 Cal.4th 316, 324.)
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.