APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Affirmed in part; reversed in part with directions. (Super.Ct.No. RIF129069).
The opinion of the court was delivered by: Miller, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendant Guillermo Ochoa of carjacking (count 1-Pen. Code, § 215, subd. (a)),*fn2 attempted robbery (count 2-§§ 664, 211), felon in possession of a firearm (count 3-§ 12021, subd. (a)(1)), and active participation in a criminal street gang (count 4-§ 186.22, subd. (a)). The jury hung on the section 186.22, subdivision (b), gang enhancement allegations attached to counts 1 through 3. After a second trial on the gang enhancements, another jury found the allegations attached to counts 1 and 3 true, but found the enhancement attached to count 2 not true. On count 1, the court sentenced defendant to life with a minimum parole eligibility date of 15 years.*fn3 On count 3, the court sentenced defendant to a five-year concurrent term consisting of the midterm of two years on the substantive offense with a consecutive three-year term on the attached gang enhancement. The four section 667.5, subdivision (b), prior prison term enhancements alleged in the information were never tried nor was any finding on them ever rendered; nevertheless, the court imposed concurrent, one-year sentences on each of them.
On appeal defendant makes three contentions: (1) that substantial evidence does not support the true findings on the gang enhancements; (2) that the prior prison term enhancements must be stricken and the prosecution barred from trying them on remand; and (3) that the court erred in determining the proper amount of credits to which defendant was entitled. The People maintain that substantial evidence supports the findings on the gang enhancement allegations, but concede no finding was made on the prior prison term enhancements and that the matter must be remanded for proper calculation of defendant‟s custody credits. We reverse the true findings on the gang enhancements because we find they were not supported by substantial evidence. We furthermore agree with defendant that the prior prison terms must be stricken and that the People are barred from seeking to try them upon remand. Finally, we find the record sufficiently clear to order the award of custody credits as requested by defendant.
I. FACTUAL AND PROCEDURAL HISTORY
On November 7, 2005, around 9:15 p.m., the victim sat in the passenger seat of his mother‟s black Ford Ranger as she parked at a fast-food restaurant in Moreno Valley.*fn4
The victim waited in the vehicle with the window partially rolled down, while his mother went inside the restaurant. A compact car pulled into the parking lot approximately 14 to 15 feet away. Defendant, described as a balding Mexican with a mustache, got out of the compact car and approached the victim.
Defendant pulled a shotgun out of his jacket, pointed it at the victim‟s face, and asked the victim for his money. The victim showed defendant his wallet and told defendant he did not have any. Defendant loaded the shotgun and told the victim to give him the vehicle. The victim exited the vehicle and ran inside the restaurant. Defendant got into the vehicle and drove away.
Defendant made no apparent gang signs or signals during his commission of the crimes. Defendant was alone. When asked whether anything in defendant‟s behavior or dress evoked the victim‟s belief that defendant was involved in a gang, the victim replied "[a] little." When asked why, the victim replied, "[j]ust the way he was looking." When asked if it was because the defendant was Mexican with short hair, the victim responded that it was.
Deputy Juan Davalos from the Riverside County Sheriff‟s Department‟s gang classification unit testified that defendant had personally identified himself as a member of the Moreno Trece (or 13) gang with the gang moniker of "Triste" or "Sad Boy" on October 16, 2005, as part of "the booking or the classification process" at the jail. Deputy Davalos further observed that defendant had a tattoo reading "Sureno" across his back; however, the deputy acknowledged there is no gang by the name of "Sureno" in Riverside County. Outside of prison, "Sureno" can mean a male Hispanic from Southern California with no gang ties; however, in prison it typically means a male Hispanic from Southern California with gang ties. The right to wear the tattoo is earned by performing criminal activity either inside or outside of prison. Deputy Davalos found no tattoos on defendant reading "Moreno Trece," "Moreno Valley Trece," or any other Inland Empire gang name.
Deputy Anthony Johnson, also from the Riverside County Sheriff‟s Department‟s special gang enforcement team, testified that Moreno Valley 13 is a local criminal street gang in the City of Moreno Valley. Deputy Johnson had investigated several crimes committed by members of that gang. He had spoken to and arrested members of the gang. Specifically, he noted that car theft is the "signature" crime for Moreno Valley 13 gang members. Carjacking, while a different crime than car theft, is a "typical signature-type crime . . . that‟s been made famous by gang members. [Carjacking is] a quick, easy . . . way to obtain a car, and most likely go out, either commit some other type of crime, or sell it for weapons, drugs, things of that nature."
Deputy Johnson testified that defendant had admitted to membership in Moreno Valley 13 on at least four occasions. Defendant had a tattoo of "Sureno" across his back meaning that he was a gang member from Southern California. Defendant had a tattoo of the number "13" on his left wrist. Defendant had previously stolen cars from members of his family and a neighbor. Deputy Johnson opined that defendant was a member of Moreno Valley 13. He acknowledged that while many crimes committed by gang members are performed for the benefit of the gang, gang members can commit crimes on their own without benefiting the gang. He agreed that "some of those crimes may not even be gang-related."
Sergeant Frank Assumma, from the Riverside Police Department, testified as an expert gang witness for the People. Sergeant Assumma testified that gangs advertise through graffiti, clothing, tattoos, and word of mouth. They "establish their respect through crimes, the commission of crimes, and crimes of violence." Respect is synonymous with fear. Fear benefits a gang by making rivals hesitant to attack them and inhibits community members from testifying against the gang. Those who commit the most crimes generate the most fear and, therefore, gain the most respect from within the gang. "[G]angs survive economically . . . through crimes. It‟s through theft, it‟s through drug dealing. By "theft,‟ I mean either burglaries, or robberies, or carjackings . . . ."
Sergeant Assumma testified that there are five factors to consider in determining whether a crime was committed for the benefit of the gang: (1) whether gang members were involved in the crime; (2) what was said or done during the crime; (3) the kind of crime that was committed; (4) how the crime was committed; and (5) what the motive for the crime was. Here, defendant‟s gang membership "established what gang that he was going to be benefiting, for me. It established the fact that he is a gang member. And from that point-I could start from that point. Now, I can look at the crime to see what occurred during the crime and how that might benefit his gang." While defendant did not announce his gang affiliation during his commission of the underlying crimes, gang members frequently refrain from publicizing such associations because they wish to remain anonymous, i.e., such identification might readily lead to arrest. Nonetheless, Sergeant Assumma testified that, in this instance, the victim believed that defendant was a gang member by defendant‟s demeanor and appearance. Investigators often find that victims of crimes believe the offender was a gang member despite the fact that the suspect does not announce his gang affiliation; does not have observable, identifying gang tattoos; and does not wear readily identifiable gang specific clothing. What crimes the particular gang commits on a regular basis, i.e., the gang‟s "signature" crime may also aid in determining whether the crime was committed to benefit the gang. Car theft was Moreno Valley 13‟s "signature" crime.
Other factors helpful in determining whether a crime was committed for the benefit of the gang include how, where, and why the crime was perpetrated. Whether a crime was committed within the gang‟s own territory or the territory of a rival gang can signify that the crime was committed to benefit the gang. Similarly, if the crime was committed against rival gang members, this often signifies it was executed to benefit the gang, particularly where the crime was committed in retaliation for some act by a rival gang. Sergeant Assumma believed the instant crimes may have been committed to enable defendant to retaliate against someone else because defendant had immediately driven over to someone else‟s home and brandished the shotgun.*fn5 Where more than one gang member is involved in the commission of a crime, it is easier to say the crime was committed for the benefit of the gang.
Sergeant Assumma opined, based on the aforementioned factors, that defendant committed the underlying crime (singular) for the benefit of his gang.*fn6 The theft was of "obvious benefit . . . to the gang" because there were "so many benefits to stealing a car for the gang." He testified that the carjacking would benefit the gang by providing general transportation to the gang‟s members, by enabling transportation of narcotics for sale by the gang, by enabling transportation to commit further crimes by the gang, by providing economic benefit to the gang by sale of the vehicle, by elevating defendant‟s status within the gang, and by raising the gang‟s reputation in the community.
On cross-examination, Sergeant Assumma admitted that there was no indication that defendant used the stolen vehicle to transport other gang members. He acknowledged there were no indications that defendant had claimed responsibility for his crimes in the name of his gang. He agreed that crimes can be committed by a gang member for his own benefit. However, he could not "think of too many crimes where there is not a dual benefit, where [both] the individual . . . and the gang . . . [do not benefit]." "An individual . . . will very rarely . . . engage in the types of crimes, especially the types of crimes we have ...