IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
November 30, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RANDLE HESTER, DEFENDANT AND APPELLANT.
Appeal from a judgment of the Superior Court of Orange County, David A. Thompson, Judge. (Super. Ct. No. 06NF2588)
The opinion of the court was delivered by: O'leary, J.
P. v. Hester
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Affirmed as modified.
Randle Hester appeals from a judgment after a jury convicted him of first degree murder (Pen. Code, § 187, subd. (a), count 1),*fn1 shooting at an occupied motor vehicle (§ 246, count 2), conspiracy to commit murder (§ 182, subd. (a), count 3), three counts of premeditated and deliberate attempted murder (§§ 664, subd. (a), 187, subd. (a), counts 5, 6, and 7), and street terrorism (§ 186.22, subd. (a), count 9). As to count 1, the jury found true the special circumstances Hester committed murder during a drive-by shooting (§ 190.2, subd. (a)(21)), and to further the activities of a criminal street gang, "East Coast Crips" (East Coast), and "Osage Legend Crips" (Osage Legend)
(§ 190.2, subd. (a)(22)). As to counts 1, 2, 5, 6, and 7, the jury found true Hester vicariously discharged a firearm (§ 12022.53, subds. (c), (d) & (e)(1)). As to all but count 9, the jury found true Hester committed the crimes for the benefit of a criminal street gang, East Coast and Osage Legend (§ 186.22, subd. (b)(1)).
Hester argues insufficient evidence supports the jury's finding on the gang special circumstance, the gang enhancement, and the firearm enhancement. He also contends the abstracts of judgment are incorrect. Although we agree concerning the abstracts of judgment, his other claims have no merit. We affirm the judgment as modified.
One evening, Jennifer Gardner, Maxine Solomon, Darnell Little, and Christopher Lang went to a nightclub in Anaheim in Gardner's 1997 Honda Passport. Gardner and Little had been dating for about five months. The group stayed at the club for about two hours. As they left the club, Darrel Gray and Randle Hester called Gardner a "bitch," and Little became upset. Little and Gray argued and each claimed gang membership. Little said "20's Crip," and Gray replied "East Coast." The parties left the club separately.
Little drove Gardner's vehicle to a nearby gas station and everyone got out. A blue Dodge Magnum pulled into the gas station. Little and Gray argued again. Gardner and Solomon got back into the vehicle. Little got in the vehicle and said, "Let's go."
Little and his group got onto the I-5 freeway heading northbound. Gardner then saw the same blue Dodge Magnum that Hester and Gray were driving. Moments later Gardner heard "muffled sounds," like gunshots, and Little swerved the car into the center divider. The car's occupants asked each other if they were okay, but Solomon did not respond. Little immediately got out of the vehicle, went to Gardner's side of the vehicle, and opened the door. Gardner said Solomon could not hear them call her name, but she was okay. Little said something when the vehicle door slammed shut, but then Little was gone. A truck driver traveling northbound on the freeway saw a vehicle in the middle of the freeway. The driver had no time to avoid hitting Little who was standing next to the vehicle. Gardner and the others got out of the vehicle and saw Little 50 feet up the freeway, lying dead on the ground.
Detective Ryan Dieringer investigated the case. Dieringer obtained a copy of the videotape from surveillance cameras at the nightclub, and he distributed copies to gang officers in Los Angeles County to obtain help in identifying the suspects. Gardner identified Gray in a photographic lineup, although she was unable to identify Hester in another photographic lineup. Detective Ronald Kingi called Dieringer and identified the suspects in the videotape as Darrel Gray and Charles Von Lewis. However, after viewing additional video clips, he no longer believed the second suspect was Von Lewis.
Weeks later, Dieringer interviewed Hester at the Buena Park Police Department. Hester admitted to having been at the nightclub a couple times, but he was unsure if he was there on the night in question. Hester also admitted going to the gas station but could not remember any details because he had taken the drug ecstasy. He also could not remember the car he drove, although his girlfriend, Cynthia Richmond, had a new Dodge Magnum he borrowed sometimes. Hester denied being involved in any confrontation or shooting.
At trial, Detective Joe Pirooz testified the Rollin 20's and East Coast were not rivals but they had committed crimes against each other. Pirooz explained the 20's Crips called East Coast derogatory names, such as "Toasters" or "Cheetos." He stated Little was a member of the criminal street gang, "Rollin' 20's Crips" and he had a tattoo of the number "'20'" on his back and the word Long Beach over his shoulder. He stated Lang was a member of Insane Crips criminal street gang. Additionally, a mural with Little's name, and the phrase "Fucc Toasts" was admitted into evidence. Pirooz asserted this evidence was significant because it demonstrated a rivalry between the two gangs.
Officer Daniel Milchovich testified as the prosecutor's gang expert. After detailing his background, training, and experience, Milchovich testified regarding the culture and habits of criminal street gangs, including Osage Legend. Milchovich said Osage Legend had around 60 members and Hester is a self-admitted member with the moniker, "Mad Castro." In Milchovich's opinion, Hester was an active member of Osage Legend on the night of the shooting. Milchovich stated Hester had a tattoo on his back that said, "WS," which stood for West Side, and one that said, "Osage Legends."
Based on the prosecutor's hypothetical question mirroring the facts of this case, Milchovich opined the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang, specifically Osage Legend and East Coast. Milchovich explained an Osage Legend gang member associated with an East Coast gang member to commit a crime. He stated commission of the crime would benefit the street gangs based on the notion of respect because in gang culture confrontations must be resolved. He added that if a gang member does not retaliate, the gang member is considered weak and he and his gang are disrespected. Milchovich testified the notion of "backup" and respect would bring respect to the gang member and the gang because the East Coast gang member committed the crime while the Osage Legend gang member provided backup.
The prosecution also offered the testimony of Detective Eric Rose, another gang expert. After detailing his background, training, and experience, Rose also testified concerning the culture and habits of criminal street gangs, including East Coast.*fn2 Rose explained the importance of respect and "putting in work" to gain respect in the gang. He stated a gang member loses respect by not participating in "missions." He said a "hit-up" is when one gang member asks another person what gang he is from to determine if the person is a rival or an ally. Rose stated the person doing the "hit-up" is assuming an altercation will result. He testified that if two members of different gangs were in the same car, then one would expect back-up from the other, especially if they are partying together. He said gang members talk about their crimes with other gang members to gain respect.
Rose also testified about the importance of guns in gangs. Rose stated that if one gang member is armed with a gun generally the other gang members will know the gang member is armed for purposes of protection. Rose opined that if there are six gang members, one of whom is armed, and there is an altercation, the other gang members would know which gang member is armed for protection.
When given the same hypothetical as Milchovich, Rose testified the crimes were committed for the benefit of the criminal street gang, East Coast, because people will know which gang did the shooting and this would benefit the gang by increasing its reputation for committing violence. He also said it promotes the criminal street gang because if there was not already a rivalry between the two gangs, there would be one as a result of the shooting, and this would promote both gangs. It also benefits the gang by creating a rivalry or war between the two gangs. By putting "FUCC Toasts" on the mural, Rose stated these individuals all know who did the shooting and that will increase respect for the shooter and the gang member who provided "back-up."
After the jury reached its verdicts and the trial court denied Hester's new trial motion, the court sentenced Hester to life without the possibility of parole on count 1, and a consecutive term of 25 years to life for the firearm use enhancement. The court imposed terms of life with the possibility of parole plus 20 years for counts 5, 6, and 7, to be served consecutively as to each other but concurrently with count 1. The court awarded him credit for time served of 922 days of actual custody.
Hester argues insufficient evidence supports the jury findings on the gang enhancement, the gang special circumstance, and the firearm enhancement because there was no evidence the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang. Specifically, he claims the only evidence supporting the gang findings is the officers' expert testimony, and that testimony alone was insufficient because it must be firmly rooted in the evidence. Based on the entire record, we conclude there was sufficient evidence Hester committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang.*fn3
Standard of Review
"Where there is a claim of insufficient evidence, 'we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]' [Citation.] 'Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict" the conviction will not be reversed. [Citation.]' [Citation.] We apply the same standard to convictions based largely on circumstantial evidence. [Citation.]" (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.)
The street terrorism enhancement, section 186.22, subdivision (b)(1), increases the punishment for "any person who is convicted of a felony committed 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 . . . ." (Italics added.) The element may be satisfied by providing evidence that the crime was committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales).)
Sufficient evidence supports a jury's finding on a gang enhancement when evidence that a gang member committed a crime with another gang member is supported by expert opinion to show that a crime was committed for the benefit of a gang. (Morales, supra, 112 Cal.App.4th at p. 1198.) Additionally, sufficient evidence may be found where defendant drove fellow gang members to the site of a drive-by shooting with the knowledge and intent that a crime would be committed. (People v. Romero (2006) 140 Cal.App.4th 15, 20 (Romero).) On the other hand, evidence is insufficient when expert testimony alone suggests a crime was done for the benefit of a gang, without additional evidence such as the calling out of gang names, display of gang signs or clothing, evidence of bragging to take credit for the crimes, or being accompanied by a fellow gang member. (People v. Ochoa (2009) 179 Cal.App.4th 650, 658 (Ochoa).)
Here, there was sufficient evidence Hester committed the offenses for the benefit of a criminal street gang. The gang expert testimony demonstrated that on the night of the offenses, Hester was an active participant in a criminal street gang, Osage Legend, and Gray was an active participant in a criminal street gang, East Coast. There was testimony Little and Gray engaged in a gang confrontation while Hester and Lang exchanged words. Although there was no direct evidence who drove from the nightclub to the gas station, the prosecutor offered evidence Hester's girlfriend had a Dodge Magnum, and thus, the jury could reasonably infer Hester drove the car and followed Little and his friends to the gas station where Gray confronted Little. From there, Hester followed Little and his group onto the freeway, and drove next to Little's car while Gray fired a gun at the vehicle. This evidence that an East Coast gang member committed yet another crime against a Rollin 20's gang member demonstrated this was more than a personal dispute concerning a girlfriend, and it was buttressed by the significant gang testimony.
There was expert gang testimony concerning the importance of respect in gangs. The gang expert testimony demonstrated a gang member can earn respect by committing a crime against another gang member because it will instill fear in the community. Additionally, an expert witness testified regarding the concept of "back-up" as a means to gain respect. Milchovich stated that if a gang member participates in a crime as "back-up" then in the gang culture this brings respect to the gang member and the gang, and thus benefits the gang. The record also includes evidence concerning the importance of guns in gangs. Rose testified about the importance of a gang member informing another gang member he is armed with a gun for purposes of protection. Based on this evidence the jury could reasonably conclude Hester knew Gray was armed and knew a crime was likely going to be committed when he followed Little from the nightclub to the gas station and onto the freeway. (Romero, supra, 140 Cal.App.4th at p. 20.)
Based on the entire record it was certainly reasonable for the jury to conclude Hester, the driver, and Gray, the shooter, associated with each other to perpetrate this attack on other gang members. (Morales, supra, 112 Cal.App.4th at p. 1198 [two gang members working together against another gang member, supported by the expert testimony stating the crime was committed for the benefit of the gang was sufficient evidence].) Therefore, the jury had sufficient evidence to reasonably conclude the offenses were committed for the benefit, at the direction of, or in association with a criminal street gang.
To support his claim Hester relies on Ochoa, supra, 179 Cal.App.4th at pages 657 to 665, where the court reversed gang enhancements that were based only on the gang expert's testimony the offenses were committed for the benefit of the gang member. Unlike Ochoa, here we have more than just gang expert testimony. Although Hester himself did not claim gang membership, the record includes evidence Hester, a gang member, was with another gang member at a nightclub when his confederate claimed his gang, and Hester drove the car while his confederate shot at the gang member who they had just confronted.
Hester also relies on People v. Albarran (2007) 149 Cal.App.4th 214, 227, to support his contention. Albarran has no bearing on this case because it did not involve the issue presented here--whether sufficient evidence supports the gang enhancements.
Hester's reliance on People v. Martinez (2004) 116 Cal.App.4th 753, 760, is also misplaced as that case concerned the gang registration requirement under section 186.30. Therefore, based on all the evidence, there was sufficient evidence to support the jury's findings Hester committed the offenses for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1).
Gang Special Circumstance
Hester contends insufficient evidence supports the gang special circumstance. Not so. Section 190.2, subdivision (a)(22), requires punishment of death or life without the possibility of parole where, "The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang . . . and the murder was carried out to further the activities of the criminal street gang."
The record demonstrates, and Hester does not dispute, he was an active participant in Osage Legend. As we explain above more fully, the evidence established Hester and Gray, an East Coast gang member, were at a nightclub when Gray participated in a gang challenge, and Hester drove the armed Gray to assassinate another gang member. Based on this evidence and the expert testimony, the jury could reasonably infer the driver, Hester, provided "back-up" for Gray to gain respect for himself and his gang. Thus, there was sufficient evidence Hester committed murder to further the activities of the criminal gang.
Hester also claims that because the gang enhancement was not supported by sufficient evidence, then insufficient evidence supports the firearm enhancement because "[b]y its terms, the application of this subdivision . . . depends upon an allegation pursuant to section 186.22, subdivision (b), having been pled and proved." Section 12022.53, subdivision (e)(1)(A), states in relevant part the firearm "enhancements . . . in this section shall apply to any person who is a principal in the commission of an offense if . . . [¶] [t]he person violated subdivision (b) of [s]section 186.22." Because we find sufficient evidence supports the jury's findings on section 186.22, subdivision (b)(1), this claim has no merit.
Abstract of Judgment
Hester requests the abstracts of judgment be corrected on numerous points. The Attorney General concedes these errors. We agree.
First, the trial court considered the criteria affecting the imposition of concurrent or consecutive sentences in California Rules of Court, rule 4.425, and stated: "(1) The crimes alleged in [c]ounts 5, 6, and 7 and their objectives were not predominantly independent of the crimes alleged in [c]ounts 1, 2, and 3; (2) The crimes alleged in [c]ounts 5, 6, and 7 did not involve separate acts of violence from the crimes alleged in [c]ounts 1, 2, and 3; (3) The crimes alleged in [c]ounts 5, 6, and 7 were committed so closely in time and place to the crimes alleged in [c]ounts 1, 2 and 3 as to indicate a single period of aberrant behavior." Based on these findings, the court ordered the sentences for counts 5, 6, and 7 and their related enhancements, to be served consecutively to each other but served concurrently with counts 1, 2, and 3.
The abstract of judgment indicates counts 5, 6 and 7 are to run consecutively to count 1 when they should run concurrently with counts 1, 2, and 3 but consecutively with each other. The clerk of superior court is ordered to prepare an amended abstract of judgment reflecting counts 5, 6 and 7 are to run consecutively to each other but concurrently with counts 1, 2, and 3.
Second, both the determinate and indeterminate abstracts of judgment indicate the trial court awarded Hester 922 days of actual credit but "0" days of total credit. The clerk of the superior court is ordered to prepare an amended abstract of judgment reflecting Hester's total credit of 922 days.
Finally, the abstract of judgment indicates that for counts 5, 6, and 7, attempted premeditated and deliberate murder, Hester is to serve "[seven] years to life, with [the] possibility of parole." Pursuant to section 664, subdivision (a), when "the crime attempted is willful, deliberate, and premeditated murder . . . the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole." Although it is true Hester must serve at least seven years before he is eligible for parole (§ 3046, subd. (a)(1)), the correct sentence is life with the possibility of parole. The clerk of the superior court is ordered to prepare an amended abstract of judgment reflecting the proper sentence of life with the possibility of parole on counts 5, 6, and 7.
The judgment is affirmed as modified. The superior court clerk is directed to prepare an amended abstract of judgment that correctly reflects the sentences on counts 5, 6, and 7, and credits, and forward it to the Department of Corrections and Rehabilitation, Division of Adult Operations.
WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.