Super.Ct.No. RIF136971 APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge. Affirmed.
The opinion of the court was delivered by: King J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Carlos Gomez and three others assaulted Nicasio Estrada at an apartment complex where Estrada lived. During the attack, one of the assailants obtained the keys to Estrada's pickup truck. After beating Estrada, the four men left the apartment complex in defendant's car, then returned 10 or 20 minutes later. By that time, Estrada was inside his apartment. Two of the four assailants got into Estrada's truck and drove away.
Defendant was charged with carjacking (count 1; Pen. Code, § 215, subd. (a)),*fn2 robbery (count 2; § 211), assault with a deadly weapon (count 3; § 245, subd. (a)(1)), and active participation in a criminal street gang (count 4; § 186.22, subd. (a)). The People also alleged the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang under section 186.22, subdivision (b). The People further alleged defendant had one "strike" conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) and one prior serious felony (§ 667, subd. (a)).
A jury convicted defendant of the carjacking count, simple assault (a lesser included offense of assault with a deadly weapon), and active participation in a criminal street gang. He was acquitted of the robbery charge. The jury also found true the allegations that the carjacking and assault crimes were committed for the benefit of a criminal street gang. In a bifurcated trial, the court found true the allegations of the prior convictions. He was sentenced to a total term of 23 years in state prison.
Defendant contends: (1) the evidence was insufficient to establish either the intent or immediate presence elements of carjacking; (2) the court erred in allowing into evidence his statement made during a booking interview that he was a member of a gang; and (3) the court erred in denying his motion to bifurcate the gang enhancements and sever the gang participation count. We affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Nicasio Estrada testified as follows. He was in charge of maintenance at the apartments where he lived on Philbin Street in Riverside (the Philbin apartments). At approximately 1:00 in the morning of May 28, 2007, he left his apartment to check the grounds of the apartment complex to see that windows and doors on unoccupied apartments were closed. He carried a flashlight. His wallet, money, and keys were in his pant and jacket pockets. His pickup truck was parked about 10 feet away from his apartment. As he was walking back toward his apartment, a white car coming from the street stopped approximately 25 to 40 feet from him. There were four or five people inside the car. Four men got out of the car and came up to him, "[v]ery close up and very aggressively." One of the men, identified later as Anthony Garcia, "came nose to nose" with Estrada. Defendant was the man farthest away from him--about four feet behind Garcia. The other two men were subsequently identified as Manuel Zamora (Manuel) and Raymond Zamora (Raymond).
According to Estrada, the men made "hand signs like gangsters would make." Garcia asked Estrada for his name and either (1) did he live there or (2) where he was from.*fn3 Estrada said he did live there and that they did not. Garcia then began hitting him. Estrada ran to a stairway. The men ran after him and knocked him down. All four of the men hit him with their fists all over his body. He got up to defend himself, but was knocked down again. At some point during the attack, defendant said to the others: "'Finish him.'"
Defendant twice threw a concrete block or brick at Estrada. The first time, he hit Estrada on his hip or "thorax." The second time, he threw the block at Estrada's head. Although Estrada was able to partially deflect the block the second time, it brushed against his face under his right eye.
At some point, Raymond obtained the keys to Estrada's truck. As will be discussed below, there is evidence to support inferences that Raymond took the keys directly from Estrada during the attack, that he took Estrada's jacket during the attack and later found the keys in the jacket pocket, and that he found the keys on the ground as they were leaving.
According to Estrada, something "alerted" the attackers and they ran to their car and drove away. He went back to his apartment and called 911. Approximately 10 or 20 minutes after the attack, he saw the car with the men return. He watched them through a window from inside his apartment. Manuel and Raymond got out of the car and walked toward his apartment. Defendant remained in or near the car. Estrada made eye contact with them. They tried to enter the apartment through the front door to (according to Estrada) "assault us inside." The Zamoras were not able to get in.*fn4 They then went to his truck. One of the Zamoras opened the truck with a key. They both then got into the truck and drove away.
Shortly after the attack, police found Estrada's truck on Calmhill Drive, approximately two miles from the Philbin apartments. A police officer testified that he saw four people "pulling stuff out of" the vehicle and tossing it to the ground. The four were detained. They were Garcia, Manuel, Raymond, and defendant. Police took Estrada to the location on Calmhill Drive where he identified the detainees as the people who attacked him.
Following defendant's booking at the Robert Presley Detention Center, he was interviewed by Mike Munoz, a sheriff's deputy and "classification officer." Deputy Munoz asked defendant his name, date of birth, and whether he had any gang affiliations. Defendant told Deputy Munoz his name, birthdate, and that he was affiliated with Arlanza. Deputy Munoz then asked defendant if he was an active member, associate, or former member of the gang. Defendant told Deputy Munoz that he was an active member and used the moniker Scooby. Deputy Munoz also took note of "Arlanza" and "Traviesos" tattoos on defendant's chest and stomach.
Riverside Police Detective James Simons testified as a gang expert. He testified that the Arlanza 13 gang is an Hispanic gang that claims a certain area in the City of Riverside, including John Bryant Park. The Philbin apartments are in the middle of Arlanza 13 territory. He stated that Traviesos is a clique, or subset, of Arlanza 13. The primary activities of the Arlanza 13 gang include narcotics violations, grand theft, weapons violations, and violent assaults against rival gang members. Detective Simons said he was familiar with Garcia and the Zamoras and that each had previously admitted membership in the Arlanza 13 gang.
Detective Simons opined that the attack on Estrada was committed for the benefit of, at the direction of, and in association with Arlanza 13. He explained that the "association" is shown by the fact that four gang members were committing the crime together. The crime was committed at the direction of Arlanza 13 because defendant told the "younger members to finish [Estrada] off." Finally, the crime benefits the gang because it occurred within the area claimed by Arlanza 13 and instills fear within the members of the community and, therefore, respect for the gang.
Detective Simons testified that a gang member who decides to disassociate himself from the gang "would have to move out of the area where this gang exists . . . ." Although it is possible to continue to live in Arlanza 13 territory and be "retired" from the gang, a member cannot "pick and choose" when to be in the gang. If you are with "fellow gang members and something happens where you're attacked by rival gang members, you're expected to jump in and fight those rival gang members with your fellow members. If you don't, then you can be assaulted yourself and get kicked out of the gang."
Detective Simons opined that defendant was an active Arlanza 13 gang member on the date of the attack on Estrada. He based this opinion on defendant's admissions of gang membership to police officers in 1994 and 2005, defendant's arrest for possession of narcotics in 2003 while in the presence of another gang member, defendant's arrest in 1994 for injuring a rival gang member in the company of two other gang members, defendant's gang tattoos, and "most importantly, his ongoing association with Arlanza gang members and his ongoing active participation in the types of crimes that they commit, which was involved in this case."*fn5
In his defense, defendant offered testimony by his former parole officer, a former supervisor where defendant worked, his mother, his girlfriend, a witness to the attack, and himself. His parole officer from July 2005 until May 2007 testified that he never saw any evidence that defendant was involved in gang activity. The supervisor testified that defendant worked for a ceramic tile manufacturer from 2005 until his arrest in 2007, never had any problems at work, and always showed up on time.
Defendant's mother testified defendant lived with her after he was paroled in 2005. She said that defendant had turned over a new leaf and got a job. He had a girlfriend, who moved in with them, and fathered a child. She did not see him hang out with gangs. Rather, he worked and spent time with his family. Defendant's girlfriend testified she was with defendant every night for the two years prior to his arrest and never saw defendant hanging out with gang members.
Rafial Simon testified he was with his brother at the Philbin apartments at the time of the incident. He saw four Hispanic males walk into the apartment complex and approach the apartment maintenance man. He did not hear the initial exchange between them, but then heard the men hollering at the maintenance man, asking, "What are you doing?" and "Why are you looking in these cars?" He did not hear any references to a gang or anything to identify the men as gang members. When the men began hitting the maintenance man, Simon started to intervene. However, when the largest of the men started toward him and said something like, "you want a piece of me too," Simon retreated to his brother's apartment. From inside, he could see the two youngest of the four men punching the maintenance man; someone was yelling, "Get him. Kick his ass." At some point, the maintenance man got up and walked to a place out of Simon's sight. For about three minutes, Simon could not see what transpired. He did not see anyone throw a brick at the maintenance man. He subsequently peeked out his window and, as the attackers were leaving, saw one of them pick something up and say to the others, "hey, look." Simon said "it could have been the guy's wallet." He did not see the attackers return and take a truck.
Defendant testified as follows. He was a member of Arlanza 13 by the time he was 16 years old in 1994. He was in the California Youth Authority and then prison from 1994 to 2001. He was incarcerated a second time from 2003 until 2005 for a drug-related conviction, which he said was not gang related. He acquired his gang tattoos in 2003 while in prison. After being paroled in 2005, he turned over a new leaf and got a job. He was no longer hanging out with gang members and did not consider himself a gang member.
On the night of the attack on Estrada, he had a disagreement with his girlfriend and went out. After going first to his aunt's house, he drove to John Bryant Park in the "old neighborhood" between 11:00 p.m. and 11:30 p.m. He went alone, with an 18-pack of beer. He decided to go to that park because he knew it was an Arlanza 13 park and he would feel comfortable there. There, he met the Zamoras and Garcia.
He first met Manuel in 2002 and knew he "had ties" with and was "related to Arlanza 13," but did not know he was a gang member. He did not know Raymond or Garcia. At the park, they drank beers for approximately one-half hour; they did not talk of Arlanza 13 or gangs. Raymond said he wanted to go visit someone at the Philbin apartments. Defendant drove them to the complex. There was no plan to beat someone or take anyone's car.
When they arrived at the Philbin apartments, the Zamoras and Garcia got out first. As defendant was locking the car, he saw the others get into a "scuffle." The fight started in the driveway, then moved to the steps by one of the apartment buildings. He ran to the fight to help the Zamoras and Garcia; everyone was hitting everyone. When Estrada grabbed defendant's shirt, defendant asked him to let go. When Estrada did not let go, defendant hit him twice. He denied picking up or throwing a brick at Estrada, and said he never told anyone to "[g]et him," "[k]ick his ass," or "[f]inish him."
After hitting Estrada, defendant ran back to his car, followed by the others. He did not know that anyone had taken anything from Estrada. After they drove away, Raymond said, "hey, I got his car keys." Raymond told defendant to go back to the apartments. Although it was not his intention to take Estrada's truck, he knew Raymond planned to take the truck and knew he was helping others commit a crime. When they returned, Raymond and Garcia got out of his car and into Estrada's truck; defendant and Manuel stayed in his car. Defendant then followed the truck to Calmhill Drive. When the truck pulled over, he pulled in behind it. He watched as Garcia and Raymond went through the truck and threw items on the ground.
A. Sufficiency of the Evidence of Carjacking
Defendant contends the evidence is insufficient to convict him of carjacking for two reasons. First, there was no evidence defendant intended to deprive Estrada of his truck when he used force or fear against him; second, the evidence was insufficient to establish the truck was taken from Estrada's immediate presence. We reject both arguments.
Carjacking is defined as "the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215.) The requisite intent--to deprive the possessor of possession--must exist before or during the use of force or fear. (§ 20; Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 1650; cf. People v. Marshall (1997) 15 Cal.4th 1, 34 [to "support a robbery conviction, the evidence must show that the requisite intent to steal arose either before or during the commission of the act of force"].)
When reviewing a challenge to the sufficiency of the evidence, an appellate court must view the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence to support the verdict. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence is evidence that is of ponderable legal significance; reasonable, credible, and of solid value such that a reasonable trier of fact could find the ...