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People v. Mendez

September 1, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
VICTOR MANUEL MENDEZ ET AL., DEFENDANTS AND APPELLANTS.



APPEALS from the judgments of the Superior Court of Los Angeles County. Martin L. Herscovitz, Judge. Affirmed in part as modified; reversed in part and remanded. (Los Angeles County Super. Ct. No. LA056790).

The opinion of the court was delivered by: Doi Todd, J.

CERTIFIED FOR PUBLICATION

Appellants Victor Manuel Mendez and Luis Enrique Ramos, juveniles who were tried as adults, appeal from judgments entered following a jury trial that resulted in their convictions of one count of carjacking (Pen. Code, § 215, subd. (a)),*fn1 one count of assault with a firearm (§ 245, subd. (a)(2)), and seven counts of second degree robbery (§ 211), including criminal street gang and firearm enhancements on each count (§§ 186.22, subd. (b)(1)(C); 12022, subd. (a)(1); 1203.06, subd. (a)(1); 12022.5, subd. (a); and 12022.53, subds. (b) & (e)(1)). Mendez was age 16 at the time he committed the crimes. He was sentenced to state prison for 84 years to life. Ramos, who was one year younger, was sentenced to state prison for 48 years and eight months.

In response to appellants' contentions, we find sufficient evidence supports the jury's findings on the gang enhancements and that Mendez personally used a firearm; that the criminal conviction assessments were properly imposed; and that there are typographical errors in Mendez's abstract of judgment that must be corrected. We also find that Mendez's lengthy sentence--which was imposed on a juvenile who did not commit a homicide or inflict bodily injury and which makes him ineligible for parole until well beyond his life expectancy--constitutes cruel and unusual punishment and is therefore unconstitutional under the federal and state Constitutions. We remand Mendez's case for reconsideration of his sentence, and direct the trial court to correct his abstract of judgment. In all other respects, the judgments are affirmed.

FACTS

Prosecution Case

A. The Crimes

On June 30, 2007, at approximately 11:40 p.m., Jose Garcia was stopped at an intersection in Palmdale in his green Chevrolet Lumina when a white car with appellants and at least two other people pulled alongside him. Appellants got out and approached Garcia, and one of them asked him if he was "from anywhere." Understanding the question to refer to gang membership, Garcia answered "no." Either appellants or the people in the car said "Blythe Street" several times. Mendez had a gun and opened Garcia's car door, while Ramos stood behind him. Garcia got out of his car and appellants got in and drove away. Garcia's watch was in his car. He walked to a nearby friend's house, and his friend called the police.

About an hour later, at 1:00 a.m. on July 1, 2007, Eduardo Bernal was walking home from work in Los Angeles when two people ran toward him, grabbed him, and told him to empty his pockets. One of the assailants was Ramos, who had his hand under his shirt as though he had a weapon. After Bernal handed over his cell phone, wallet and a CD holder, Ramos and the other man ran across the street. Bernal did not call the police, but he did call the bank to report that his credit cards had been stolen.

Approximately fifteen minutes later, friends Ethan Shapiro, Curtis Doyal, David Guster, Robert Reber and Daniel Hart were at an intersection in Los Angeles when Garcia's green Chevrolet Lumina passed them slowly, made a U-turn and pulled over to the curb. Appellants and one other person got out of the car and approached the group. Guster testified that when "they pulled up, they were, like, gangsters; and they told me what do I got, and I said, 'I don't bang.'" Appellants demanded the friends' belongings. When Doyal asked why he should hand anything over, Ramos replied that he had a gun. Doyal challenged him to prove it, and Ramos took the gun from Mendez and pointed it at Doyal's head and Guster's face. Doyal, Guster and Shapiro gave up their wallets, while Reber handed over some change.*fn2

Ramos began walking back to the car, then returned to Doyal, called him a "clown," and struck him in the head with the gun. Appellants returned to the car and drove away. Shapiro called 911, and Doyal was taken to the hospital, where he received stitches above his left eyebrow.

About twenty minutes later at 1:35 a.m., Sima Bislamyan was sitting on a curb near her car in North Hollywood with her husband, Arthur Sogoyan. The green Chevrolet Lumina stopped nearby and a man got out with a gun in his hands while three or four other people remained in the car. A few seconds later, a second man got out. The first man pointed a gun at Sogoyan's head, took the cell phone from Bislamyan's hand, pushed her against her car, and threatened to shoot her if she did not "shut up." After Sogoyan handed his wallet to the assailant, the two men got back into the car and drove away.

Sogoyan got into his car and began to follow the green Lumina. His wife tried to follow him in her car, but lost sight of him. At some point, the people in the Lumina realized that Sogoyan was following them. The car made a U-turn and got behind Sogoyan's car. Sogoyan spotted a police vehicle and flagged it down, told the two police officers in the car what had occurred, and pointed to the nearby Lumina. The officers made a U-turn and began following the Lumina, which contained four Hispanic males.

The Lumina accelerated, made a left turn, and immediately collided with a parked vehicle. Ramos exited the driver's door of the Lumina, dropped a gun, and ran away. Two other occupants of the car, including Mendez, also ran away. A fourth person, Guillermo Torres, remained in the car and was taken into custody. A loaded .38-caliber revolver was found under the Lumina.

Two other police officers responded as backup and were maintaining a perimeter around the crash site when they saw Ramos walking toward them wearing a black T-shirt and blue jeans. He was "sweating" and "out of breath." The officers detained him, and noticed that he had a "huge tattoo on the back of his head" that said "B.S.T." One of the officers asked Ramos about the tattoo, and Ramos admitted that he was a Blythe Street gang member with the moniker "Vago."

Meanwhile, other officers were conducting a canine search of the area. The dog had been trained to locate humans based on a "fear scent." The dog followed a scent to the rear of a house, where Mendez was found hiding in a shed, stuck in a pile of tires. The dog bit Mendez, who was then taken into custody. A baseball cap was found in the tires.*fn3

B. The Investigation A couple of hours later, Bislamyan was taken to the crash site, where she identified appellants, and stated that Mendez was the person with the gun. Sogoyan was separately taken to the site, where he identified Ramos as the person who had robbed him, immediately stating, "That's him. That's him." At trial, Sogoyan testified that the person who took his wallet was not the one who used the gun, and the person with the gun was wearing a white shirt. When detained, Mendez was wearing a white shirt.

On July 2, 2007, the day after the crimes had been committed, several victims were shown photographic lineups (six-packs) containing pictures of Mendez and Ramos. Garcia identified Mendez as the person who took his car at gunpoint. Bernal saw a picture that looked similar to Ramos, but did not identify anyone. Shapiro identified Ramos as the person with the gun, and Doyal identified Ramos as the person who assaulted him. Neither Reber nor Guster were able to identify anyone with certainty. Hart identified Mendez as "one of the guys that came out of the car," but not necessarily as the one with the gun.

The Lumina contained Sogoyan's and Doyal's wallets; currency; identification cards belonging to Shapiro, Guster and Doyal; Bernal's cell phone; and a T-shirt similar to the one Ramos had been wearing when he confronted Bernal. Garcia's watch was eventually recovered from the property of Guillermo Torres that was taken into evidence when he was booked at the Sylmar Juvenile Hall. Mendez's palm print was found on a Memorex plastic case found on the front floor of the Lumina, and his fingerprints were found inside and outside the driver's side window. Ramos's prints were not recovered.

C. Gang Expert Testimony

Officer Anthony Smith of the Los Angeles Police Department (LAPD) testified as a gang expert. Officer Smith had been an officer with the LAPD for approximately 12 years, and was assigned to the violent crimes unit. He had previously worked with the FBI on major prison gangs, and held a five-year position in the Van Nuys Gang Unit, where he was assigned to monitor the Blythe Street gang, which he identified as "one of the largest gangs here in [the] Van Nuys division." He has taught courses on Hispanic street gangs at various law enforcement agencies, and this was the fiftieth case in which he was testifying as a gang expert.

Officer Smith testified that some of the reasons gang members commit violent crimes include (1) enhancing their status within the gang, (2) instilling fear in the community so that nongang persons will not report the crimes to the police, and (3) because nongang persons are easy targets. He also testified that respect is an important part of gang culture, and a sign of disrespect is "bad" because it is considered a form of weakness. If a gang member is ...


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