APPEAL from a judgment of the Superior Court of Yuba County, James L. Curry, Judge. Reversed in part and affirmed in part. (Super. Ct. No. CRF07288).
The opinion of the court was delivered by: Blease, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
This case tenders the question whether the substantive criminal street gang offense, Penal Code section 186.22, subdivision (a), which concerns the active participation of a person in the criminal activity of a gang, applies to an attempted robbery by a member of a criminal street gang acting alone.*fn2
Section 186.22 is part of the California Street Terrorism Enforcement and Prevention Act of 1988, also known as the STEP Act. (§ 186.20.) Section 186.22 contains two relevant provisions, a substantive offense in subdivision (a), and a sentence enhancement in subdivision (b)(1). The two subdivisions are meant to do different work. As we shall explain, much of the confusion in the case law construing subdivision (a) arises from a failure to distinguish the subject matters of the two subdivisions. Not all gang conduct is covered by subdivision (a); what is not covered by subdivision (a) is generally covered by subdivision (b)(1).
The defendant was convicted by a jury of attempted second degree robbery (Pen. Code, §§ 211/664, count I) and active participation in a criminal street gang (§ 186.22, subd.(a), count III). The jury found true an enhancement that he committed the attempted robbery for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)*fn3
Subdivision (a) provides that "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang" is guilty of a felony or misdemeanor.
Subdivision (b)(1) provides for the enhancement of a felony sentence when the offense benefits a criminal street gang and is intended to promote the criminal conduct of the gang. (§ 186.22, subd. (b)(1).) The trial court granted defendant's motion for a new trial of the enhancement for lack of supporting evidence. The court explained: "It's beyond a reasonable doubt that Mr. Rodriguez is a member of a gang, the Norteños; that he was active. There is no evidence beyond that to support the gang enhancement. . . . [¶] . . . [W]e have no evidence that the area where the crime was committed had anything to do with gang territory, gang turf. There was speculation from the experts that maybe Mr. Rodriquez's tattoos at least, in part, may have been visible, although the victim saw no tattoos. There was no gang language used during the attack. There were no gang signs. There is simply nothing beyond the fact that he is a gang member that would support that finding . . . ." (See People v. Frank (2006) 141 Cal.App.4th 1192, 1199.)*fn4
On appeal the defendant contends this evidentiary hiatus also required the trial court to dismiss his conviction of the substantive, subdivision (a), criminal street gang offense for lack of substantial supporting evidence. He argues that the evidence fails to show a violation of the third element of the offense, that he "willfully promote[d], further[ed], or assist[ed] in . . . felonious criminal conduct by members of [his] gang." We agree.
It is not sufficient for conviction under subdivision (a), that the defendant knowingly and actively participate in gang activities. The defendant must promote, further or aid in the commission of a separate felony offense "by members of that gang," i.e, the gang in which he is an active participant. (Italics added.) The leading case is People v. Castenada (2000) 23 Cal.4th 743 (Castenada). The court said: "[S]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 . . . ." (Id. at p. 749, italics added.) This includes, on the facts in Castenada, the perpetration of a felony in concert with other members of a gang. (Id. at p. 745.) Castenada precisely reads the grammar of subdivision (a). "[To] assist in any felonious criminal conduct by members of that gang" is to aid and abet its commission. It requires perforce that there be more than one participant.*fn5 The same is true of furthering or promoting criminal conduct by others. "[To] promote[ or] further . . . felonious criminal conduct by members of [a] gang" requires that the perpetrator promote or further a "specific felony" (asCastenada says) of other members of the gang. It makes no sense to say that a person has promoted or furthered his own criminal conduct. The subdivision is not satisfied by an intention to promote, further or assist a gang in its primary activities, including the criminal offenses it customarily engages in. That is a matter that is covered by the enhancement provision of subdivision (b)(1), as to which the trial court granted a new trial.
Subsequent Court of Appeal cases say or suggest that Castenada is not limited to concerted action by members of a gang in the commission of a separate felony, that subdivision (a) also applies to the sole perpetrator of an offense by a gang member without the criminal involvement of others who are gang members. (People v. Ngoun (2001) 88 Cal.App.4th 432 (Ngoun); People v. Salcido (2007) 149 Cal.App.4th 356 (Salcido).) Salcido reasons that in each of these two cases "'[t]he evidence supports a reasonable inference that the [crimes] were intended by appellant to promote, further and assist the gang in its primary activities - the commission of criminal acts and the maintenance of gang respect.'" (149 Cal.App.4th at p. 368; italics added.) A recent case, People v. Sanchez (2009) 179 Cal.App.4th 1297, follows these cases.
In singling out the element of intention, a term that does not appear in subdivision (a), Salcido not only departs from the language of subdivision (a), and Castenada's straightforward reading of it, but replaces the third element of subdivision (a) with the third element of subdivision (b), the gang enhancement provision. The manifest difference is between aiding gang members in the commission of a separate crime and intending generally to aid the gang in its primary activities.
Castenada rejected Salcido's view. "As we have explained, section 186.22(a) imposes criminal liability not for lawful association, but only when a defendant 'actively participates' in a criminal street gang while also aiding and abetting a felony offense committed by the gang's members." (23 Cal.4th at pp. 750-751.)
Since defendant was the sole perpetrator of an attempted robbery that did not involve felonious conduct by other persons, let alone members of the gang of which he was a member, we shall reverse the judgment of conviction for violation of section 186.22, subdivision (a). In all other respects we shall affirm the judgment.
On May 10, 2007, defendant, who lived in Woodland, was in Marysville in Yuba County where his girlfriend lived. At approximately 10:23 p.m., Stanley Olsen stepped out of his truck and onto a Marysville street. A person behind him said something that he did not fully hear. Olsen turned and saw defendant, whom he did not recognize, coming up to him. Olsen asked defendant if he knew him; defendant responded with a racial epithet and a threat to kill Olsen. The defendant was wearing jeans and a T-shirt that covered his arms to five inches below the shoulder.
Olsen stood his ground while defendant approached him so that the two men's chests were touching. Defendant demanded money from Olsen and threatened to beat him up. Olsen told defendant that he "didn't have time for this" and that defendant "needed to get away from" him. Defendant then punched Olsen in the jaw.
After being punched, Olsen "grappled" with defendant and they went to the ground with defendant on top. When Olsen tried to get up, defendant punched him in the head and back. Olsen received injuries above and below his right eye; below his left ear; and on his chin, left elbow, right hand, and left forearm. Olsen got up, ran three or four steps, and turned to see if defendant was following, which he was not. Olsen told a friend to call the police.
A woman grabbed hold of defendant and pulled him into a nearby apartment where defendant's girlfriend lived. Officers arrived on the scene and were directed to where defendant had fled. The officers knocked on the door, announced their presence, and requested that the door be opened, but there was no response. Eventually the tenant, Serena Torres, defendant's girlfriend, contacted the officers and allowed them to search the apartment for defendant. Defendant's sister, Dena Rodriguez, who was present at the time in the apartment with her baby, told officers that defendant was in a locked bedroom and that he was the person they were looking for.
Officers found defendant hiding under the bed. He stated that he was sorry and that he had not wanted to be arrested because his parole agent had not authorized him to be in Marysville. At an ensuing field showup, Olsen identified defendant as his attacker.
At the jail following his arrest, defendant was asked whether he would have any problems being housed with southern or Sureño inmates. Defendant replied that "there's a possibility there would be a problem." Defendant was asked whether he was a gang member, and he answered, "Yes, maybe a little bit."
Jail inmates are classified "to make sure that inmates are housed with . . . like inmates, so there's no fighting and no problems." During this process defendant was asked if he was an active Norteño; he said, "Yes," and indicated that he was from Woodland. He also indicated that his rivals were "southerners." The classification officer noted that defendant had his surname and the words "northern warrior" tattooed on his back in red and black ink, which are colors used by Norteños.
Yuba County Sheriff's Sergeant Allan Garza was called as an expert on criminal street gangs. The jury was admonished that the facts to which he would testify would form a framework for his opinion and were not being admitted for their truth.
Garza estimated that there were 150 to 200 Norteños in Yuba County. Robbery was a primary activity of Norteños in the Yuba County area. Garza testified that he had conducted a robbery investigation of Anthony Matta, who was a validated Norteño according to the Yuba City Police Department. In August 2007, Matta had been convicted of grand theft from the person (§ 487, subd. (c)) with a gang allegation (§ 186.22, subd. (b)(1)). Documents related to Matta's conviction were introduced into evidence.
Garza testified that defendant's tattoos included the letter "N" and the number "14" on his chest. Because N is the 14th letter of the alphabet, the letter and number are commonly associated with the Norteño gang. The tattooed words, "northern" on the back of the tricep area of defendant's upper left arm and "warrior," on the back of the tricep area of his upper right arm identify defendant as a warrior for the Norteño gang. Defendant's surname, Rodriguez, tattooed in red ink, was significant because Norteños have adopted red as their color. His tattoos of an Aztec warrior, skulls, and a helmet were significant because Norteño gang members have adopted the Aztec warrior as a symbol of their fierceness.
Garza testified, based upon a report by another officer and without conducting a background check on defendant, that during several police contacts in 1995 and 1999 (apparently in Yolo County), defendant admitted being a Norteño gang member and had been observed wearing gang colors and clothing and displaying gang hand signs.
Based on the foregoing facts, Garza opined that defendant was an active Norteño gang member. Based on a hypothetical question reflecting the facts of the case, as well as his opinion that some portion of defendant's tattoos would be visible if he were wearing a T-shirt, Garza opined that the attempted robbery of Olsen was committed for the benefit of the Norteño gang. There was no testimony that the victim of the attempted robbery saw the tattoos on the backs of defendant's arms. Garza opined that the crime benefited the gang because it proved to fellow gang members that defendant was willing to commit crimes for the gang; the crime instilled fear of the gang in the general citizenry, which made victims and witnesses afraid to testify against the gang; and this made it easier for gang members to commit and get away with crimes.*fn6 However, Garza had not conducted a background check of defendant and did not know whether he belonged to a subset of the Norteños in "the Yuba-Sutter area . . . ."
Marysville Police Sergeant Christian Sachs testified in the manner of an expert on criminal street gangs. The jury was admonished that the facts to which he would testify would form a framework for his opinion and were not being admitted for their truth. Sachs testified that members of the Norteño gang associate themselves with the colors red and black; wear red shoelaces and other red clothes; have gang tattoos; associate themselves with the number 14 because "N" is the 14th letter of the alphabet; may have one dot tattooed on one hand and four dots on the other, symbolizing the number 14; and may have certain unique hairstyles.
Sachs testified that there were more than three Norteños in the area and that robbery is a primary activity of the gang. Sachs investigated an attempted homicide case in Marysville in which three Norteño gang members--John Damian Williams, Steven Joseph Echevarria, and Alfredo Dominguez--stabbed someone who had made fun of their haircuts and was believed to be a member of a rival gang. The men were convicted and admitted an allegation that the crime was committed for the benefit of a criminal street gang. Documents related to the three gang members' convictions were introduced into evidence.
Sachs testified that he reviewed Woodland, Yolo County, police records from 1995 through 1999 that documented defendant's membership in the Norteño gang in that area, his admission of membership, and his having been seen in the company of other gang members. Sachs opined that, based on defendant's tattoos, his self-admission during a booking and classification process in Woodland, his red shoelaces, his red cigarette lighter, and the contents of the Woodland Police records, defendant was an active member of the Norteño gang.
Based on a hypothetical question Sachs opined that the present crime was committed for the benefit of a criminal street gang. The crime benefited the gang because it served to intimidate the public; made the public afraid of the gang and created the fear of retribution should anyone cross the gang; and served to intimidate actual and potential witnesses of crimes committed by the gang, thus causing witnesses to not come forward or cooperate with law enforcement.
At the outset we consider the Attorney General's argument that defendant forfeited a challenge to the substantive offense of section 186.22, subdivision (a).*fn7 The People contend that defendant's failure to specify count III, the criminal street gang offense, in addition to the gang enhancement finding in his motion for new trial precludes him from challenging the sufficiency of the evidence in support of his conviction. We disagree.
A defendant is not required to bring a motion for new trial to preserve an issue regarding the sufficiency of the evidence supporting a conviction. "In the absence of a guilty plea, the sufficiency of the evidence to support a finding is an objection that can be made for the first time on appeal. (People v. Rodriguez (1998) 17 Cal.4th 253, 262; People v. Jones (1988) 203 Cal.App.3d 456, 461, disapproved on another ground by People v. Tenner (1993) 6 Cal.4th 559, 566, fn. 2.)" (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.)
Here, defendant appeals from a judgment of conviction after a jury trial. Accordingly, his challenge to the sufficiency of the evidence of gang participation is properly before us.
We also reject the Attorney General's argument that defendant fails to properly present the issue of insufficient evidence in his briefing. That is not correct. Defendant clearly argues that the trial court should have "dismissed the charge" for insufficient evidence. Defendant's briefing suffices to apprise us of his contention and his analysis ...