APPEAL from the Superior Court of Riverside County. William A. McKinstry, Judge. (Retired judge of the Alameda Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified with directions. (Super.Ct.No. RIF123815).
The opinion of the court was delivered by: Richli J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
When defendant German Edward Sanchez was 17 years old, he and an accomplice robbed two female employees of a pizza parlor. There was evidence that defendant was a member of the Corona Varrio Locos gang (although his accomplice apparently was not).
A jury found defendant guilty on two counts of second degree robbery. On each of these two counts, it found a personal firearm use enhancement to be true. (Pen. Code, § 12022.53, subd. (b).) It also found defendant guilty of the substantive offense of gang participation.*fn2 (Pen. Code, § 186.22, subd. (a).) However, it found gang enhancement allegations in connection with the robbery counts to be not true. (Pen. Code, § 186.22, subd. (b).) The trial court sentenced defendant to a total of 16 years in prison.
Defendant contends that the imposition of separate and unstayed sentences for both gang participation and robbery constituted multiple punishment in violation of Penal Code section 654 (section 654). We will hold that section 654 precludes multiple punishment for both (1) gang participation, one element of which requires that the defendant have "willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of th[e] gang," and (2) the underlying felony that is used to satisfy this element of gang participation. Accordingly, we will modify the judgment to bring it into compliance with section 654.
Defendant also contends that there was insufficient evidence that he promoted, furthered, or assisted in any felonious criminal conduct by gang members to support his conviction for gang participation. We are publishing this portion of our opinion because it furnishes some of the necessary legal background for our discussion of section 654. However, we will hold that there was sufficient evidence of this element.
In the unpublished portion of this opinion, we find no other prejudicial error. Hence, we will affirm the judgment as modified.
A. The Robbery of Five Buck Pizza
On December 7, 2005, victims Bianca Mora and Diana Alvarez were working at Five Buck Pizza in Corona. Around 5:30 p.m., defendant and "another guy" came into the restaurant. The two men were wearing bandannas over their faces and holding guns. They pointed their guns at the women and told them to stop what they were doing.
Despite defendant's bandanna, Mora recognized him. She had "s[een] him around" at her high school. Also, defendant's girlfriend worked at Five Buck Pizza, so Mora had seen him at the restaurant.
Defendant approached Mora, still pointing his gun at her. He told her to open the safe. He then led her to the back of the building, where the safe was. At first, Mora made a show of trying to open the safe but without actually entering any numbers. After about two minutes of this, however, defendant got mad; he yelled at her and hit her with the gun "several times." She then tried to actually open the safe. At first, it seemed to be "jammed," but eventually it opened. She gave defendant the money that was inside.
Meanwhile, the second man "grabbed" Alvarez, put his gun up to her back, and told her to open the register. For some reason, however, she was not able to do so. Still holding the gun to her back, the second man walked her back to where defendant and Mora were. After a discussion between the men, the second man pushed Alvarez into the bathroom. Alvarez then heard the second man say, "[C]ustomers. Let's bounce."
Alvarez was just taking out her cell phone to call 911 when the second man entered the bathroom. He told her to give him the phone. When she said no, he "pushed [her] against the wall and put the gun to [her] stomach and told [her] to give him the cell phone." She then complied. The two men left.
When the police interviewed Mora, she told them that defendant was one of the robbers. She identified a photo of him. She also identified him in a field lineup.
Like Mora, Alvarez knew defendant from high school and from his dating another employee of the restaurant. However, she was not able to identify either of the robbers. She also admitted that she would not be able to tell "whether a gun is real or fake."
After the police arrested defendant, he admitted that he and his cousin, Angel Hernandez,*fn3 had committed the robbery. He explained that his family had just been evicted, "so he took it upon himself to go get some money so he could find a place for him and his family to live." He picked Five Buck Pizza "because he was familiar with the store and thought it would be easy."
Defendant claimed that the guns used during the robbery were only BB guns. He also claimed that, when he ran out the back door, the bag in which he was carrying the money ripped and the money fell out. He said that he "cut through" a nearby apartment complex, then ran home.
The police were never able to find any of the proceeds of the robbery nor the guns that were used. In the apartment complex that defendant had identified, however, they did find two Bank of America money bags that had been taken from Five Buck Pizza. "[S]ome kids" turned in a cash register money tray, also taken from Five Buck Pizza, which they said they had found in the same apartment complex.
Detective Armand Tambouris of the Corona Police Department testified as a gang expert. He described the Corona Varrio Locos, or CVL, as a gang active in and around Corona. CVL members used identifying signs or symbols, including "4th Street" and a crown.*fn4 They also carried blue bandannas.
According to Detective Tambouris, CVL's primary activities included robberies, burglaries, shootings, stabbings and other assaults, graffiti, and vandalism. Exhibits 7 and 8 showed that Matthew Lopez and Jesse York had each pleaded guilty to robbery. Detective Tambouris testified that Lopez and York were both members of CVL.
In the opinion of Detective Tambouris, defendant was "an active member" of CVL. In September 2005, Detective Tambouris's partner had contacted defendant. During that contact, defendant admitted that he was a member of CVL, having been "jumped in" when he was 11. Defendant added that "CVL was upset with him because he had not been putting in work." Detective Tambouris explained that "putting in work" meant committing crimes. At the time of the contact, defendant was wearing a hoodie that said "[S]outh [S]ide 13," as well as a blue bandanna. The number "13" is associated with Southern California, or "Sureño," gangs.
Detective Tambouris's opinion that defendant was a member of CVL was also based, in part, on the following items found by defendant's bed during a search of his home.*fn5
Exhibit 1 was a photo showing defendant with "CVLS," "CT," "4th Street," and "13" written (though not tattooed) on his body. "CT" stood for "Crown Town," meaning Corona.
Exhibit 4 consisted of multiple photos, including one of defendant and a female jointly flashing a "13" sign.
Exhibit 5 was a photo showing defendant and four other men; defendant and a second man were wearing blue bandannas, and this second man was flashing a "CVL" gang sign. A third man in the photo was flashing a "13" sign.
Exhibit 6 was a photo of a drawing of a crown with the number "4" written over it, the words "CVLS" and "Corona" on it, and the word "Shorty" underneath it.
In Detective Tambouris's opinion, the Five Buck Pizza robbery was committed for the benefit of CVL. He testified that the commission of any violent crime by a CVL member tended to get respect for the gang and to intimidate victims and witnesses so that they would not testify. Also, the gang would benefit financially from the proceeds of a robbery.
Defendant's mother and stepfather both testified that, on the day of the robbery, the family received an eviction notice.
II. THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE GANG PARTICIPATION CONVICTION
Defendant contends that there was insufficient evidence, in several respects, to support the gang participation charge.
The crime of gang participation is committed by "actively participat[ing] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and . . . willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang . . . ." (Pen. Code, § 186.22, subd. (a).)
A "pattern of criminal gang activity" is defined as "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more [specified] offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . . ." (Pen. Code, § 186.22, subd. (e).) The specified offenses are generally serious crimes, including homicide, robbery, burglary, and aggravated assault. (Ibid.; see also id., subd. (j).)
A. Evidence of Active Participation
First, defendant argues that there was insufficient evidence that he actively participated in the gang.
"[A] person "actively participates in any criminal street gang,' within the meaning of [Penal Code] section 186.22(a), by "involvement with a criminal street gang that is more than nominal or passive.' [Citation.]" (People v. Castenada (2000) 23 Cal.4th 743, 752.) "[I]t is not necessary for the prosecution to prove that the person devotes all, or a substantial part, of his or her time or efforts to the criminal street gang . . . ." (Pen. Code, § 186.22, subd. (i).)
In People v. Martinez (2008) 158 Cal.App.4th 1324, the court found sufficient evidence that the defendant actively participated in the King Kobras gang, as follows: "[An expert] testified he believed defendant was an active member of the King Kobras. He based this on review of booking photos of defendant that showed he had a VKKR tattoo over his eyebrow and a KK tattoo on the back of his head, which could be seen because he had a shaved head. He also spoke with a detective who had interviewed defendant after his arrest and reported that defendant said he had grown up in East Los Angeles, admitted being a member of King Kobras, and gave a gang moniker. He also relied on the crime defendant committed, one of the gang's primary activities, and that he did it in association with another gang member . . . ." (Id. at p. 1331.)
Here, similarly, just three months before the robbery, defendant had admitted being a member of CVL. While there was no evidence that he had any CVL tattoos, there was a photo of him with CVL symbols written on his body. Moreover, he displayed CVL paraphernalia in his bedroom, including drawings and photographs with CVL symbols. Some of the photos showed him wearing a blue bandanna. One showed him flashing a gang sign. Moreover, they showed him socializing with apparent CVL members. While Detective Tambouris said he was unaware of any moniker defendant had, he then added, "Other than . . . the crown that was found above his head with the name Shorty, that's the only moniker that we have." The jury could reasonably infer that Shorty was defendant's gang moniker. Finally, defendant committed robbery, and Detective Tambouris testified that robbery was one of the gang's primary activities.
The only even arguable distinction between this case and Martinez is that there was no evidence that defendant's accomplice in the charged robberies (identified by defendant as his cousin, Angel Hernandez) was a gang member. Nevertheless, the robberies tended to show defendant's active participation in CVL.
Defendant relies on his own statement that he was "on the outs" with the gang because "[h]e hadn't been putting in work for the gang." It is fairly inferable, however, that he made up for this by committing the charged robberies.
Defendant also argues that we cannot consider his commission of the charged robberies because, by finding the charged gang enhancement under Penal Code section 186.22, subdivision (b) to be not true, "the jury clearly found that the robberies were not committed for the benefit [of], or in association [with] or at the direction of" CVL. The jury, however, was entitled to return inconsistent verdicts. "As a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.] For example, "if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both.' [Citation.] . . . It is possible that the jury arrived at an inconsistent conclusion through "mistake, compromise, or lenity.' [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 600.) Thus, even assuming it found that this element of the gang enhancement was not satisfied, it was entitled to find that a related (or even identical) element of the gang participation charge was satisfied. In reviewing the sufficiency of the evidence, we may disregard an inconsistent not true finding; we ask only if the evidence in the record is sufficient to support the verdict of guilt. (People v. Pahl (1991) 226 Cal.App.3d 1651, 1657.)
Separately and alternatively, for purposes of the sufficiency of the evidence, it was not necessary that defendant commit the charged robberies specifically in association with the gang. It was enough that - in addition to decorating his body with gang symbols, keeping gang paraphernalia in his bedroom, socializing with gang members, and having a gang moniker - defendant engaged in the characteristic gang activity of robbery. This is true even if he did so on his own account. It was still evidence that he was an active, rather than passive, participant in the gang.
We therefore conclude that there was sufficient evidence that defendant actively participated in CVL.
B. Evidence of Knowledge That Members Engage in a Pattern of Criminal Gang Activity
Defendant argues that there was insufficient evidence that he knew that members of the gang engaged in a pattern of criminal gang activity.
To show the requisite pattern, the prosecution relied primarily on the fact that defendant's fellow gang members - Lopez and York - had been convicted of a robbery committed in October 2004. There was no evidence that defendant knew of that particular robbery.
Defendant did say, however, that he was "on the outs" with the gang because "[h]e hadn't been putting in work." An expert testified that "work," in this context, meant "criminal activity . . . either at the direction of or [in] association with or [for] the benefit of that gang." There was also expert testimony that the gang's primary activities were shootings, stabbings, other assaults, robberies, burglaries, and vandalism. From the evidence that defendant actively participated in CVL (see part II.A, ante), it was fairly inferable that he was at least generally aware of the gang's primary activities. Finally, it was fairly inferable that, when he referred to "work," he had in mind all of the criminal activities of the gang, including those crimes that would suffice to constitute a pattern of criminal gang activity.
We therefore conclude that there was sufficient evidence that defendant had the requisite knowledge that members of CVL engaged in a pattern of criminal gang activity.
C. Evidence That Defendant Promoted, Furthered, or Assisted in Felonious Criminal Conduct by Gang Members
Defendant argues that there was insufficient evidence that he promoted, furthered, or assisted in any felonious criminal conduct by gang members.
In People v. Castenada, supra, 23 Cal.4th 743, our Supreme Court referred to this "promote/further/assist" element as aiding and abetting, stating: "[Penal Code] section 186.22(a) limits liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gang's pattern of criminal gang activity. Thus, a person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members . . . . [Citations.]" (Id. at p. 749, italics added.)
Here, as far as the evidence showed, defendant was not involved in any felonious conduct other than the charged robberies. In those robberies, he was a perpetrator, not an aider and abettor. Citing Castenada, defendant argues that ...