Opinion
No. 108,362.
2013-10-25
STATE of Kansas, Appellee, v. Junior SANCHEZ, Appellant.
Appeal from Seward District Court; Kim R. Schroeder, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Don L, Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Seward District Court; Kim R. Schroeder, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Don L, Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Junior Sanchez pled guilty to aggravated battery, a severity level 7 person felony. When a court services officer completed a presentence investigation, he checked that the offense was gang related. Based on both the testimony presented at sentencing and evidence at Sanchez' codefendant's jury trial, the district court agreed. Applying K.S.A.2012 Supp. 21–6804(k)—the criminal street gang provision of the Kansas Revised Sentencing Guidelines Act (KSGA), K.S.A.2012 Supp. 21–6801 et seq.—the district court sentenced Sanchez to presumptive imprisonment. Sanchez appeals, claiming that the district court erred in its application of the criminal street gang provision as well as asserting that application of both the gang provision and his prior criminal history at sentencing violate the Sixth and Fourteenth Amendments to the United States Constitution. Because we find that there was insufficient evidence to support the district court's conclusion that Sanchez acted with the specific intent to promote, further, or assist in any criminal conduct by gang members, we vacate his sentence and remand for resentencing with directions not to apply the special criminal street gang provision of the KSGA.
Factual and Procedural History
On January 4, 2012, Junior Sanchez pled guilty to aggravated battery, a severity level 7 person felony. A presentence investigation report completed by court services indicated that the crime was gang related. Based on his criminal history, Sanchez would be subject to presumptive imprisonment rather than presumptive probation if the gang-related nature of the crime was shown at sentencing. See K.S.A.2012 Supp. 21–6804(k)(l). Sanchez objected to the application of this special rule, stating that nothing in the record suggested the crime was gang related. The district court scheduled a hearing to sentence Sanchez and to determine the applicability of the criminal street gang provision of the KSGA.
At sentencing, the State presented evidence demonstrating that the aggravated battery in question occurred when the victim, Anthony Roubidoux, went to pick up his brother Johnathan. Roubidoux's mother received a text message stating that a gang called the SouthSiders were “hiding [Johnathan] out,” requiring that she, Roubidoux, and other family members locate Johnathan. Once on the scene, Sanchez and his codefendant, Ramon Ortega, approached Roubidoux and his family, and Sanchez exchanged heated words with Roubidoux. The argument escalated into a physical altercation between Roubidoux, Sanchez, and Ortega. Sanchez eventually stabbed Roubidoux.
The State's witnesses also testified that both Sanchez and Ortega belonged to a gang called the SouthSiders. The testimony focused on Sanchez' tattoos, his reputation as a member of the gang through photographs and the use of gang signs, and the Liberal Police Department's tracking of Sanchez' “gang criteria.” An officer for the Liberal Police Department also indicated that the SouthSiders engage in criminal activities and violations of the Uniformed Controlled Substances Act. However, the State's witness testified that Roubidoux did not belong to a gang.
The defense argued in closing that Roubidoux was not in a gang and that the fight between Sanchez and Roubidoux occurred due to their prior acquaintance at the Seward County Jail, not gang affiliation. During allocution, Sanchez admitted to being “gang related” but agreed that Roubidoux was not in a gang and that the altercation was unrelated to gang activity. The State responded that because both Sanchez and Ortega belonged to the SouthSiders, the altercation constituted gang-related activity.
In sentencing Sanchez, the district court noted that it had presided over Ortega's jury trial and that the trial evidence indicated that Sanchez and Ortega instigated the fight. Sanchez objected to the court considering the evidence from Ortega's trial because he lacked an opportunity to cross-examine those witnesses. The district court responded, “[Y]ou have to be aware that this Court heard that evidence.” The district court continued that it “[had] a hard time believing that you're gang—but this wasn't gang related. This Court just doesn't buy it.” Accordingly, the district court found that “this action was involved for the purpose of a gang,” that Sanchez and Ortega promoted and created the fight as gang members, and that Sanchez “lost [his] presumption of probation.” The district court sentenced Sanchez to 17 months' imprisonment. Sanchez appeals his sentence.
Application of the Criminal Street Gang Provisions at Sentencing
Sanchez essentially argues that the district court erred in applying the criminal street gang provision of K.S.A.2012 Supp. 21–6804(k) for three reasons: (1) The district court relied on information not before it at sentencing, (2) the district court's factual findings were not appropriately specific, and (3) the evidence before the district court was insufficient to sustain application of the provision. The State responds that the information provided at sentencing was sufficient and that the district court appropriately applied the gang provision to Sanchez' sentence.
We will address each of Sanchez' arguments separately.
The district court's reliance on evidence outside of the sentencing hearing
Sanchez first argues that both the plain language of K.S.A.2012 Supp. 21–6804(k) and the Confrontation Clauses of the United States and Kansas Constitutions require that a court consider only evidence at the sentencing hearing when applying the gang provision. Interpretation of the KSGA is a question of law over which this court has unlimited review. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
K.S.A.2012 Supp. 21–6804(k)(1), in relevant part, provides:
“If it is shown at sentencing that the offender committed any felony violation 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, the offender's sentence shall be presumed imprisonment.”
It is well settled in Kansas that “[w]hen a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it” and “need not resort to statutory construction.” State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). The State and Sanchez agree that the language of the statute is plain on its face.
Only one Kansas appellate case, State v. Garcia, 274 Kan. 708, 56 P.3d 797 (2002), involves the interpretation of K.S.A.2012 Supp. 21–6804(k) through a prior version, K.S.A.2001 Supp. 21–4704a(k). There, the issue focused on what specific findings the statute required. However, our Supreme Court placed great importance on the fact that the presumptive prison sentence only arises “ ‘[ i]f it is shown at sentencing ’ “ that the offense was gang related. 274 Kan. at 715–16.
We find that the plain language of the statute indicates that the required elements to trigger the gang provision must be “shown at sentencing.” K.S.A.2012 Supp. 21–6804(k)(1). The statute makes no reference to information presented outside the sentencing hearing, such as that presented at preliminary hearing or trial. See K.S.A.2012 Supp. 21–6804(k)(1). Although the gang provision is one of many sentencing provisions imposing a presumptive disposition in certain situations, no others include the “shown at sentencing” language. See K.S.A.2012 Supp. 21–6804(h) (requiring presumptive imprisonment when a firearm is used to commit a person felony); K.S.A.2012 Supp. 21–6804(1), (m) (requiring presumptive imprisonment for violations of certain statutes). The gang provision stands alone in requiring that evidence supporting the provision be shown at a particular point in time, suggesting that the legislature intended for the triggering facts to be demonstrated at the time of sentencing.
Here, the district court clearly relied on evidence presented at codefendant Ortega's trial, stating “the evidence that was being presented at that trial, that you [were] involved with ... [r]eflected that you two [Sanchez and Ortega] were the aggressors.” The district court continued by saying that the defendant was “aware that this Court heard that evidence” from the trial. Accordingly, we find the district court's action in considering evidence from Ortega's trial to be outside the statutory framework of K.S.A.2012 Supp. 21–6804(k)(1), requiring that we vacate the sentence and remand for resentencing.
We pause here to note that even if the court did properly consider evidence from Ortega's trial, it is not at all clear how the fact that Sanchez and Ortega were the aggressors, without more, led the district court to the conclusion that the fight was for the benefit of, at the direction of, or in association with the gang, nor how it was for the specific intent of promoting or assisting the gang as required by K.S.A.2012 Supp. 21–6804(k)(1). Nevertheless, we will examine Sanchez' next two arguments on appeal which cause us similar concern.
The specificity of the district court's factual findings
Sanchez next argues that the district court erred because it was not sufficiently specific in its finding that the special gang provision applied. This court has found that a district court is not required to make specific findings when it refuses to depart from the presumptive sentence. State v. Mares, 20 Kan.App.2d 971, 972, 893 P.2d 296,rev. denied 257 Kan. 1095 (1995). Under the plain language of K.S.A.2012 Supp. 21–6804(k)(1), any crime committed in relation to gang activity raises a presumption of imprisonment.
In Garcia, however, our Supreme Court further dissected the statute, stating that based on its clear language a district court must consider three elements in applying the provision: (1) whether the crime was committed in conjunction with the gang, (2) whether the defendant had the specific intent to assist the gang in criminal activity, and (3) whether the gang fit the definition of “ ‘criminal street gang’ “ provided by the statute. 274 Kan. at 716. The court stated that it “ma[de] little sense” for the legislature to provide such “an exacting fact-sensitive trigger” without requiring the district court to state on the record whether and how the provisions applied. 274 Kan. at 716. Because the district court failed to find any of the required elements on the record, our Supreme Court remanded the matter for resentencing. 274 Kan. at 717.
In the instant case, in finding that the gang provision applied, the district court referenced the statute by its previous statutory number as well as stating, “[T]his action was involved for the purpose of a gang. That it was—that you [were] there with another member of your gang and the promotion of this fight and the creation of this fight, that you hurt another human being, and there's no justification for that.”
In regard to Sanchez' statements that the fight did not relate to gang activity, the court noted that it “ha[d] a hard time believing ... this wasn't gang related.” The court made no other findings relating to K.S.A.2012 Supp. 21–6804(k). Although the court implied that Sanchez acted in association with his gang by participating in the fight with another gang member, it failed to make findings regarding the other two Garcia factors—that Sanchez had the requisite intent or that the SouthSiders satisfied the requirements of a criminal street gang as presented in K.S.A.2012 Supp. 21–6804(k). Without more specific findings, just as the court in Garcia, we are required to vacate the sentence and remand for resentencing.
But even if the findings were sufficiently specific, we turn to Sanchez' third argument.
Sufficiency of the evidence to sustain application of the gang provision
The State did present some evidence at sentencing that independently indicated Sanchez' involvement in gang activity. Accordingly, the question becomes whether that evidence, without reference to Ortega's trial, supports application of the gang provision.
When there is a question about whether the record supports the imposition of a sentencing provision, the appellate court applies the substantial competent evidence standard of review. See State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011) (discussing departure sentences). Substantial competent evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). This court will not weigh conflicting evidence, evaluate witness credibility, or redetermine questions of fact on appeal. In re Adoption of Baby Girl P., 291 Kan. 424, 430–31, 242 P.3d 1168 (2010).
As our Supreme Court explained in Garcia, the statute (now K.S.A.2012 Supp. 21–6804[k] ) consists of three essential elements. See 274 Kan. at 716. First, the crime must be committed “for the benefit of, at the direction of, or in association with any criminal street gang.” K.S.A.2012 Supp. 21–6804(k)(1). Second, the perpetrator must have “the specific intent to promote, further or assist in any criminal conduct by gang members.” K.S.A.2012 Supp. 21–6804(k)(1). Third, the gang in question must fit the statutory definition of a “criminal street gang” under K.S.A.2012 Supp. 21–6804(k)(2).
As to the first element, no evidence indicates that Sanchez attacked Roubidoux at the direction of or to benefit the SouthSiders gang, leaving only the possibility that the attack was committed in association with the gang. It was undisputed that Ortega and Sanchez approached Roubidoux together and that once Sanchez and Roubidoux began fighting, Ortega “jump[ed]” Roubidoux as well. Sanchez argues that although he and Ortega share membership in the SouthSiders and participated together in the battery, these facts alone do not rise to the level of acting in association with the gang. Although there is evidence in the record indicating that Roubidoux arrived on the scene specifically because his family believed that SouthSiders were at the same location as his brother and “hiding him out,” the evidence was not admitted to establish the truth of the matter asserted—that the SouthSiders were hiding Roubidoux's brother—but merely to establish the reason Roubidoux and his family went to the location.
At the sentencing hearing, Sanchez told the district court that the fight “had nothing to do with gangs.” But the district court stated that it “ha[d] a hard time believing” that the fight was unrelated to gang membership. Although this court will not reevaluate Sanchez' credibility on appeal, we are unable to conclude that these facts alone support the district court's conclusion that Sanchez engaged in the altercation in association with the SouthSiders gang. The sole fact that both gang members approached and fought with Roubidoux is insufficient to demonstrate that Sanchez' action was “for the benefit of, at the direction of, or in association with” the SouthSiders gang under K.S.A.2012 Supp. 21–6804(k)(1). As an analogy, simply because two members of a football team are the aggressors in a fight with someone does not necessarily mean that the fight was for the benefit of, at the direction of, or in association with the football team.
The second element of K.S.A.2012 Supp. 21–6804(k)(1) requires that the defendant act with the “the specific intent to promote, further or assist in any criminal conduct by gang members.” The State concedes that “[t]he requirement for specific intent ... presents some problems, however Mr. Sanchez and Mr. Ortega clearly participated in the attack.” The evidence presented at sentencing indicates that Sanchez and Ortega each had tattoos and were known as members of the SouthSiders, but nothing indicates that Sanchez specifically intended to promote, further, or assist in a gang-based crime. Furthermore, the State's witness testified that Roubidoux was not in a gang. Sanchez himself stated that the fight was unrelated to gang activity and that his issues with Roubidoux “had nothing to do with gangs.”
Based on the reasonable person standard, these facts are insufficient to support the conclusion that Sanchez' specific intent was to participate in the altercation “to promote, further or assist in” gang-centric criminal activity. See K.S.A.2012 Supp. 21–6804(k)(1). Even if Sanchez' allocution was not credible, the State provided no other evidence demonstrating his specific intent. There is not enough evidence of Sanchez' mindset to support the second element of the gang provision.
The third element requires that the defendant be a member of a criminal street gang under the statute. See K.S.A.2012 Supp. 21–6804(k). At sentencing, the State provided evidence about the membership and identifying characteristics of the SouthSiders, as well as the nature of Sanchez' association with the gang. Witnesses stated that the overarching SouthSiders gang consists of subsets with other names, such as “the [T]iny [D]uce [C]lick or the Playboy Surenos” and that members identify themselves with tattoos, many of which are associated with the numbers 1, 3, or 13. The State also elicited testimony that the SouthSiders participate in person felonies and crimes that violate the Uniform Controlled Substances Act.
A reasonable person could find that this description of the SouthSiders sufficiently supports the conclusion that the SouthSiders are a criminal street gang under K.S.A.2012 Supp. 21–6804(k)(2). The testimony indicated that the gang commits felonies as described by the statute and provided the common names and identifying symbols used by members of the SouthSiders. Therefore, the third element of the gang provision is met.
Based on the testimony presented at sentencing, there was insufficient evidence for a reasonable person to conclude that the gang provision of K.S.A.2012 Supp. 21–6804(k) applies. Although testimony demonstrates that Sanchez acted in association with a gang and that the gang in question met the requirements of the statute, there was no evidence indicating that Sanchez acted with the requisite specific intent. Therefore, we are required to vacate Sanchez' sentence and remand his case for resentencing. Moreover, because the evidence presented by the State was insufficient to support the district court's conclusion that that special criminal street gang provision should apply, we further direct that at the time of resentencing, the district court not apply the special criminal street gang provision of K.S.A.2012 Supp. 21–6804(k).
Given our order vacating Sanchez' sentence, we need not address his claim that the criminal street gang provision of the KSGA is unconstitutional.
Failure to Present Prior Criminal History to a Jury
Sanchez finally argues that sentencing him based on his prior criminal history without submitting that history to a jury for proof beyond a reasonable doubt is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He concedes that State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), controls on this issue.
Because this issue is a question of law, this court exercises unlimited review. 273 Kan. at 46. In Ivory, our Supreme Court analyzed the interplay between Apprendi and the use of a defendant's prior criminal history both by considering cases decided before Apprendi and by researching decisions from other states and federal courts. Ivory, 273 Kan. at 46–47. After considering these, the court decided that Apprendi's mandate that facts other than prior convictions be submitted to a jury and proved beyond a reasonable doubt does not apply to a defendant's criminal history score. Ivory, 273 Kan. at 46. Additionally, the court declined to treat prior convictions as essential elements that require a jury's decision. 273 Kan. at 47.
This court is required to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). Our Supreme Court continues to refuse to revisit its holding in Ivory. See, e.g., State v. Benson, 295 Kan. 1061, 1068, 287 P.3d 927 (2012). Therefore, Ivory applies and the use of Sanchez' criminal history score in sentencing does not violate Apprendi.
Sentence vacated and remanded to district court for resentencing without. consideration of the special criminal street gang provision of K.S.A.2012 Supp. 21–6804(k).