IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 28, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DANIEL DAVID SANCHEZ, PLAINTIFF AND RESPONDENT.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JORGE CABALLERO SERRATO, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed with directions. (Super.Ct.No. RIF138958)
The opinion of the court was delivered by: Richli J.
P. v. Sanchez
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Two friends were walking in an alley in Corona when they were confronted by five Hispanic males who were members of the Corona Varrio Loco (CVL) gang. Defendants Daniel David Sanchez and Jorge Caballero Serrato were among the men. The two friends were forced to empty their pockets, which included a cellular telephone, as a "tax" to enter the gang's neighborhood. Sanchez and Serrato were later detained and identified at a field show up.
Serrato filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, but joined in Sanchez's opening brief. Sanchez contends:
1. There was insufficient evidence to support that the crime was committed for the benefit of or in furtherance of the gang to support his conviction for violating Penal Code section 186.22, subdivisions (a) and (b), and gang expert testimony was improperly admitted.
2. The $30 fines imposed pursuant to Government Code section 70373 for each conviction was improper as it was an improper retroactive application of the statute.
We affirm the judgment but order the abstract of judgment for Sanchez be modified to reflect the proper offense as discussed in part V, post. We find no other arguable issues.
A jury found Serrato and Sanchez guilty of robbery (Pen. Code, § 211)*fn1 and active participation in a street gang (§ 186.22, subd. (a)). The jury also found that Serrato and Sanchez committed the robbery for the benefit of or in furtherance of a criminal street gang. (§ 186.22, subd. (b).) The jury could not reach a verdict on whether Sanchez had personally used a knife during the commission of the crime (§ 12022, subd. (b)(1)), and a mistrial was declared on that charge. The charge was later dismissed.
Sanchez was sentenced to three years for the robbery, plus 10 years for the gang enhancement, for a total of 13 years in state prison. The additional gang crime under section 186.22, subdivision (a) was ordered stayed pursuant to section 654. He was ordered to pay $30 per convicted charge under Government Code section 70373. Serrato received the same sentence.
1. The Crime
On September 15, 2007, about 11:00 p.m., Tyler P. and Jose C. were drinking with some other friends near an alley located between 9th and 10th Streets in Corona. After they finished, they walked down the alley toward Jose's house.
As they proceeded down the alley, they were confronted by two to five Hispanic males with "buzzed" heads. Tyler identified one of the men, who was wearing a black sweatshirt with "Corona" on it, as Sanchez. Jose and Tyler were told by another one of the males, who was identified as Serrato, that they could not walk in the area. One of the men said, "Corona." Serrato "got [into the] faces" of Jose and Tyler and asked, "Where are you from[?]," which Tyler took as meaning what gang he was from. They also asked who Tyler and Jose "banged" with. Jose and Tyler told them they were not in a gang and walked away in the other direction.
As they walked away, they were again confronted by Sanchez, Serrato, and a third man. Tyler could not recall what this third man was wearing or what he looked like. Serrato told them, "We're gonna tax you 'cause you're comin[g] in our neighborhood." Sanchez said that he was going to "pocket check" each of them. Sanchez then said, "You better give me everything you got in your pockets or else we'll fuck you up."
Jose had a cellular telephone that belonged to Tyler's mother; Tyler had asked him to hold in his pocket because Tyler did not have any pockets. Sanchez grabbed the phone. Tyler estimated the phone had cost over $100. Serrato stood nearby and got "in Jose's face" like he wanted to fight them. Tyler and Jose were allowed to walk away.
Tyler called the police from Jose's home. The 911 call was played for the jury. Tyler reported that he had been the victim of a robbery at knifepoint. He described the suspects as male Hispanics between 18 and 20 years old. He stated that one of them was wearing a sweatshirt with the word "Corona," and that was the one with the knife.
Corona Police Officer Michele Reynolds met with Tyler and Jose at Jose's house. Tyler and Jose did not appear to be under the influence of alcohol. They described the suspects as male Hispanics.
Officer Reynolds drove Jose and Tyler separately to the field show up. There were five suspects detained. Both victims identified Sanchez and Serrato as being involved in the robbery of the phone. Sanchez and Serrato had changed clothes since the crime. Tyler stated that Sanchez had been wearing the Corona sweatshirt. Tyler was able to identify both Sanchez and Serrato in court as the two men who took his telephone. He remembered identifying them at the field show up.
Tyler was instructed after the field show up to call his cellular telephone. It was found in the wheel well of car near where the suspects were detained.
Tyler identified Sanchez as having a knife the night of the robbery but could not recall at trial if he actually saw the knife. Jose never saw a knife.
2. Gang Evidence
Corona Police Corporal Jason Waldon testified as a gang expert. CVL was an active criminal street gang in Corona. The gang also used the names Crowntown, Crowntown Ricas, and 4th Street. The symbols of CVL was crowns, skulls, and skeletons. CVL claimed as its territory most of the City of Corona. The primary activities of the CVL gang was narcotic sales, felonious assault including robbery, homicide, and carjacking. CVL engaged in robberies because it was a violent offense. Committing this type of crime benefitted the gang by boosting the gang's reputation with other gangs and instilling fear in the community. By instilling fear in the community, it was less likely that the victim would report the crime.
An individual gang member gained respect in the gang by committing crimes. Corporal Waldon explained that getting taxed meant that a gang member was demanding something from the victim for being in the neighborhood. It helped instill fear in the community, and it was a way to get money to support the gang's activities.
Johnny Aguirre was a documented CVL gang member, and along with two other CVL gang members, Eddie Cueller and Joey Diaz, stabbed and beat a Black juvenile who was in their neighborhood. They were convicted of murder. Sonny Alvarez, another documented CVL gang member, had committed robbery and used a knife during the robbery.
Sanchez had tattoos of the word "Fourth" and of crowns. He also had tattoos of a grim reaper and three skulls. These were symbols of the CVL gang. Sanchez admitted on June 7, 2007, that he was a CVL gang member. He was with fellow CVL members. He also admitted being a member on September 12, 2006. Also, when Sanchez was arrested in this case, he admitted that he was a CVL member. The three other suspects with Sanchez and Serrato on the night of the robbery were admitted CVL gang members.
Corporal Waldon surmised, based on his tattoos, being in the presence of CVL gang members, and his own admissions, that Sanchez was an active member of CVL.
On the night of the robbery, Serrato was arrested wearing a T-shirt with the word "Corona' and the number 951. This shirt was commonly worn by CVL members. The belt buckle with a "C" on it that he was wearing on the night he was arrested also was a symbol of Corona. The black and red bandana in his pocket on the night of his arrest also was a symbol of CVL. Serrato had tattoos of crowns, the letters "BDS" and "CT," skulls, and the word "Cora," which were all CVL symbols. On July 15, 2006, October 6, 2006, and September 6, 2007, Serrato admitted that he was a CVL member and was in the company of other gang members. Corporal Waldon surmised that Serrato was an active member of CVL based on his own admissions, his tattoos, and his being in the presence of other members.
Corporal Waldon was given a hypothetical in which two members of CVL were in an alley in Corona with other gang members. Two nongang individuals walked into the area and were asked who they banged with, and one of the gang members said, "Corona." The individuals walked the other way but were confronted by the two gang members and told to empty their pockets, and a cellular telephone was taken. Corporal Waldon indicated that such a crime would have been committed in order to benefit the CVL gang because it enhanced the gang's reputation. In addition, it instilled fear in the victims and in the community. It also boosted the individual gang member's reputation in the gang. It was committed in association with CVL because the perpetrators mentioned Corona and asked the victims where they were from and who they banged with.
Neither Sanchez nor Serrato presented any evidence.
SUFFICIENT EVIDENCE OF GANG ENHANCEMENTS AND IMPROPER ADMISSION OF GANG EVIDENCE
Sanchez appears to make two contentions. First, he argues that there was insufficient evidence to support that the robbery was committed to instill fear or enhance the reputation of the CVL gang for the gang enhancement pursuant to section 186.22, subdivision (b)(1) and presumably the substantive gang crime under section 186.22, subdivision (a). Further, he contends Corporal Waldon's testimony regarding his opinion that the robbery was committed for the benefit of the gang should have been excluded.
Our review of any claim of insufficiency of the evidence is limited. "'"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt."'" (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
"[A]ny 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" shall be subject to additional punishment. (§ 186.22, subd. (b)(1); see also People v. Gardeley (1996) 14 Cal.4th 605, 617.) Section 186.22, subdivision (a) provides: "Any 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, shall be punished by imprisonment in a county jail . . .." Not all crimes committed by gang members are done to benefit the gang. (See People v. Ochoa (2009) 179 Cal.App.4th 650, 661-662 [Fourth Dist., Div. Two]; People v. Ramon (2009) 175 Cal.App.4th 843, 853; In re Frank S. (2006) 141 Cal.App.4th 1192, 1195.) The trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. (Frank S., at p. 1196; People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931.) Despite this, a gang expert's testimony alone is insufficient to find an offense gang related. (Ochoa, at p. 657.)
"'[T]he record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.' [Citation.]" (People v. Ochoa, supra, 179 Cal.App.4th at p. 657.) The expert testimony must be accompanied "by some substantive factual evidentiary basis . . . ." (Id. at p. 661.) As such, "something more than an expert witness's unsubstantiated opinion that a crime was committed for the benefit of, at the direction of, or in association with any criminal street gang is required to justify a true finding on a gang enhancement." (Id. at p. 660.)
Here, the evidence established that the robbery was committed for the benefit of the CVL gang. There is no question that the crime was committed in the CVL gang's territory, that Sanchez and Serrato were active members of the gang, and that robbery was one of the primary activities of the CVL gang. This alone was not enough to show the crime was committed for the benefit of the gang. However, in addition to this evidence, when Jose and Tyler first encountered the group of male Hispanics, they were asked where they were from and who they "banged" with. Tyler understood this to mean what gang he was with. Also, one of the men said, "Corona."
Tyler and Jose were confronted again and told they were to be taxed for walking into the neighborhood. Tyler and Jose were threatened that they would be "fucked up" if they did not empty their pockets. After taking the phone, it was taken back to the area where the remaining gang members loitered. The robbery was clearly tied to the gang members' desire to instill fear in Tyler and Jose for coming into the CVL territory. Corporal Waldon's testimony bolstered the already strong evidence that this was a classic gang-related crime.
Defendant cites to numerous cases to support his claim that there was insufficient evidence to support his conviction. (People v. Ochoa, supra, 179 Cal.App.4th at pp. 656, 662-663 [appellate court reversed conviction for gang allegation because the only evidence that crimes were gang motivated was the gang expert's testimony and defendant acted alone neither without identifying himself as a gang member or using the gang name]; In re Frank S., supra, 141 Cal.App.4th at pp. 1195-1196, 1199 [gang allegation reversed because minor committed crime by himself, did not commit the crime in gang territory, and only evidence crime was gang related was expert testimony]; People v. Ramon, supra, 175 Cal.App.4th at pp. 850-851 [reversal of gang allegation when two gang members found in possession of stolen vehicle and loaded firearm and only evidence gang-related crime was gang expert's opinion].) These cases are clearly distinguishable, as here Sanchez and Serrato committed the crime in gang territory, they were with other gang members, the gang name was used during the crime, and the victims were told that they were being taxed for being in the gang's neighborhood.
Moreover, the trial court did not error by admitting Corporal Waldon's testimony. Defendant contends that his testimony merely informed the jury how Corporal Waldon thought the case should be decided and was an improper opinion on the ultimate issue.
As stated, "[i]t is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation." (In re Frank S., supra, 141 Cal.App.4th at p. 1196; see also People v. Ferraez, supra, 112 Cal.App.4th at p. 930.)
"Gang evidence, including expert testimony, is relevant and admissible to prove the elements of the substantive gang crime and gang enhancements." (People v. Williams (2009) 170 Cal.App.4th 587, 609.) A gang expert "may render opinion testimony on the basis of facts given 'in a hypothetical question that asks the expert to assume their truth,'" but "[s]uch a hypothetical question must be 'rooted in facts shown by the evidence.'" (People v. Gardeley, supra, 14 Cal.4th at p. 618.)
The expert testimony presented here was properly admitted. As already addressed, there was ample evidence that this was a gang-related crime in addition to Corporal Waldon's testimony and he appropriately testified based on a hypothetical rooted in the facts of this case. His testimony supported the gang allegation. This case is unlike People v. Killebrew (2002) 103 Cal.App.4th 644, where the expert's testimony that a gun possessed by one gang member is possessed by all gang members was the only evidence that supported the conviction, and the testimony went beyond the usual habit and custom evidence provided by an expert. (Id. at p. 654, 658.) The expert testimony here was clearly admissible along with the other gang evidence presented.
Defendant contends that the highly prejudicial gang evidence affected the jury's robbery verdict and rendered his trial fundamentally unfair. Ordinarily, "[a]bsent fundamental unfairness, state law error in admitting evidence" will be deemed prejudicial only where "it is reasonably probable the verdict would have been more favorable to the defendant absent the error. [Citations.]" (People v. Partida (2005) 37 Cal.4th 428, 439.) "[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.]" (Ibid, italics omitted.) Under the Chapman standard, reversal is required unless we conclude beyond a reasonable doubt the error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].)
Here, the admission of Corporal Waldon's testimony did not render Sanchez's trial fundamentally unfair, as it was in conjunction with the victims' testimony. Defendant relies upon People v. Albarran (2007) 149 Cal.App.4th 214. In Alberran, the court found that extensive gang evidence going to a defendant's motive and intent violated due process because there was insufficient evidence the crimes were gang related, making purported gang motive and intent irrelevant. (Id. at pp. 223, 225-227.) The Albarran court concluded that if little evidence exists to suggest a crime was committed to benefit a gang, gang evidence serves only to inflame the jury against the defendant as someone who has the propensity to commit crime. (Id. at p. 223.)
Here, in addition to Corporal Waldon's testimony, there was ample evidence that this crime was committed to benefit the gang. The crime was committed in gang territory, the gang name was used during the crime, and the robbery was motivated by the gang members extracting payment to be in their territory, a form of intimidation and to instill fear in the victims, a clear benefit to the gang. Accordingly, Sanchez's claim that the gang evidence violated his right to due process by rendering his trial fundamentally unfair is unavailing. Since we reject Sanchez's claim, Serrato does not have an arguable issue on this matter.
GOVERNMENT CODE SECTION 70373 FINE
Sanchez contends that imposition of the assessment of the $30 fine per conviction under Government Code section 70373 was improper because, under statutory construction, that section was not intended to apply retroactively to criminal offenses committed prior to the effective date.
At sentencing, the trial court ordered that Sanchez pay a $30 fine for each criminal conviction pursuant to Government Code section 70373. There was no objection. Sanchez was convicted on May 26, 2009, and committed his offenses on September 15, 2007. In September 2008, the Legislature enacted a bill containing Government Code section 70373. (Stats. 2008, ch. 311, § 6.5.) The effective date was January 1, 2009. (People v. Fleury (2010) 182 Cal.App.4th 1486, 1489-1490.)
Government Code section 70373, provides in pertinent part: "(a)(1) To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense. . . . The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction." Penal Code section 3 provides that for an enactment of a statute, "[n]o part of it is retroactive, unless expressly so declared."
The courts in People v. Fleury, supra, 182 Cal.App.4th 1486 and People v. Castillo (2010) 182 Cal.App.4th 1410, 1414 [review denied in both cases June 9, 2010] both concluded that Government Code section 70373 was enacted for a non-punitive purpose, e.g. to ensure adequate funding for court facilities. (Fleury, at pp. 1492-1494; Castillo, at pp. 1414-1415.) The Castillo court rejected the defendant's argument regarding whether the statute could be applied retroactively, finding that "the Legislature intended the new assessment to apply to convictions occurring after the new statute's effective date." (Castillo, at p. 1414.) We believe that the reasoning in these cases is sound and reject Sanchez's claim that the trial court erred by imposing the assessment under Government Code section 70373.*fn2
ABSTRACT OF JUDGMENT
Sanchez noted in his opening brief (although he has not asked this court to correct it) that the abstract of judgment incorrectly stated his crime was second degree burglary instead of robbery. Clerical errors can and should be corrected at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187.) We have the inherent power to correct errors to make records reflect the true facts. (Id. at p. 185.) We shall therefore order the trial court to modify the abstract of judgment accordingly.
We order the Riverside County Superior Court clerk to correct the abstract of judgment to reflect that Sanchez was convicted of robbery within the meaning of Penal Code section 211 in place of second degree burglary. The superior court clerk is also ordered to forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS