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The People v. Gerardo Antonio Orozco et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


January 4, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GERARDO ANTONIO OROZCO ET AL., DEFENDANTS AND APPELLANTS.

(Super. Ct. Nos. SF111174A, SF111174B)

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

P. v. Orozco

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Separate juries found defendants Gerardo Antonio Orozco and Jose Jesus Gomez guilty of the second degree murder of Juan Alberto Sanchez-Chavez. Gomez's jury acquitted him of robbing the victim but found him guilty of grand theft and active participation in a criminal street gang and found that he committed the murder and the theft for the benefit of, or in association with, a criminal street gang. Orozco's jury acquitted him of robbery, grand theft, and petty theft but could not reach a verdict on the charge of active participation in a criminal street gang or on any of the enhancement allegations on the murder charge. The trial court declared a mistrial on the charges and enhancement allegations on which the jury deadlocked.

On appeal, Gomez contends the evidence was insufficient to support his conviction for grand theft from the person of another because there was no evidence he intended to steal from the victim when he started assaulting the victim. He also contends the evidence was insufficient to support his conviction for active participation in a criminal street gang and the gang enhancements on his murder and theft convictions because the prosecution failed to prove that one of the primary activities of the Norteno gang is the commission of one or more of the crimes specified in Penal Code*fn1 section 186.22. We agree with both arguments. Accordingly, we will reverse Gomez's conviction for active participation in a criminal street gang, modify the judgment to reduce Gomez's theft conviction to petty theft and to strike the two gang enhancements, and remand for resentencing.

As for Orozco, his appointed counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436. Having reviewed the record to determine whether there are any arguable issues on appeal as to him and having found none, we will affirm the judgment against Orozco.

FACTUAL AND PROCEDURAL BACKGROUND

Gomez and Orozco were both active participants in the Norteno gang. On February 27, 2009, they were hanging out with Jessica Torres and Steven Alvarado, another Norteno gang member. After dark, they went in Orozco's car to find something to do. What they ended up doing was drinking quite a bit of beer.

Sometime past midnight, they drove to a gas station near the freeway to buy cigarettes and more alcohol. While they were there, a blue car drove up, and the occupant of the car -- who was a member of the Sureno gang -- eventually began talking to Gomez and Orozco. After five or 10 minutes, Orozco handed his jacket to Torres and told Alvarado to take her back to the car. Torres got back in the car, while Alvarado returned to where Gomez and Orozco were now engaged in a fist fight with the man from the blue car.

Eventually, after the victim was on the ground, Gomez picked up a piece of wood and hit the victim in the head with it until it broke. Meanwhile, Orozco picked up a 36-pound rock and dropped it on the victim. Gomez, Orozco, and Alvarado then got back in the car with Torres and left. Before they did so, Gomez saw the victim's phone "lying there," and he picked it up. Gomez tried to use the phone while they were in the car, but Orozco told him not to use it because the police could figure out where they were, so they broke the phone and threw it away.

Just before 8:00 a.m. on February 28, 2009, Deputy Brandon Riley of the San Joaquin County Sheriff's Department was dispatched to the gas station, where he found the victim on the ground bleeding from a large laceration on the top of his head. His face was swollen and covered in blood, and his right eye was swollen shut. He was breathing but non-responsive. His pants were down around his ankles, his boxer shorts were down around his knees, and his jacket was half off.

The victim was pronounced brain-dead on March 1. He died of severe traumatic brain injury due to blunt force trauma to the head.

Orozco, Gomez, and Alvarado were all charged with murder, robbery, and active participation in a criminal street gang (street terrorism), along with various enhancement allegations on the first two charges. The case against Alvarado was severed from the case against Orozco and Gomez. Orozco and Gomez were tried together with separate juries.

Orozco's jury found him guilty of only the murder charge (second degree), acquitting him of the robbery and lesser included theft charges and hanging on the charge of active participation in a criminal street gang, as well as on the enhancement allegations on the murder charge. The trial court dismissed the gang charge and enhancement allegations in the interest of justice and sentenced Orozco to 15 years to life in prison.

Gomez's jury found him guilty of the murder (second degree) and acquitted him of the robbery but found him guilty of grand theft and active participation in a criminal street gang and found that he committed the murder and the theft for the benefit of, or in association with, a criminal street gang and personally used a deadly weapon in the commission of the murder. The trial court sentenced Gomez to 15 years to life in prison for the murder with a consecutive one-year term for the use of a deadly weapon, a consecutive eight-month term for the grand theft, and a consecutive eight-month term for the gang offense, for an aggregate term of 17 years and 4 months to life. The court also imposed but stayed pursuant to section 654 the gang enhancements on the murder and theft convictions.

Both defendants timely appealed.

DISCUSSION

I

Gomez's Appeal

A

Sufficiency Of The Evidence Of Grand Theft

Defendant contends there was insufficient evidence that he took the victim's phone from the victim's person and therefore, because there was no evidence the phone was worth more than $400, he could not be convicted of anything greater than petty theft for taking the phone. We agree.

"The elements of theft by larceny are well settled: the offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away. [Citations.] The act of taking personal property from the possession of another is always a trespass unless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property." (People v. Davis (1998) 19 Cal.4th 301, 305, fns. omitted; see also § 484.)

There are two degrees of theft: grand and petty. (Pen. Code, § 486.) Every theft that does not qualify as grand theft is petty theft. (Id., § 488.)

At the time of the offense here, the taking of personal property with a value exceeding $400 was grand theft.*fn2 (§ 487, former subd. (a).) It is also grand theft "[w]hen the property is taken from the person of another." (Id., subd. (c).) "When someone, intending to steal, causes property to become separated from the victim's person, then gains possession of the property, the theft is from the person." (In re Jesus O. (2007) 40 Cal.4th 859, 861.)

Here, Gomez admitted to police that he took the victim's phone, which was "lying there." Thus, Gomez conceded he committed a theft. Given there was no evidence of the phone's value,*fn3 the only point of dispute is whether there was sufficient evidence on which the jury could have found Gomez guilty of grand theft under Jesus O., on the theory that with the intent to take something from the victim, Gomez and his cohorts assaulted the victim and in course of doing so caused the phone to become separated from the victim's person, after which they took possession of it.

According to Gomez, there was no evidence here of a "confrontation over money or property in connection with the assault, nor other evidence showing that [he] had a larcenous intent when the assault on [the victim] began." The People counter that evidence of "a general intent to steal prior to the attack" can be found in the evidence that when the victim was found the next morning, his pants were down around his ankles and his boxer shorts were down around his knees. According to the People, "[t]his tends to show that [Gomez] and his fellow attackers harbored the intent to search the victim for valuables before the attack began."

We agree that the evidence of the victim's pants and boxer shorts being down might have supported (as the trial court concluded) a reasonable inference that the clothes were pulled down "to see if he had money on him either underneath his clothing or secreted on his clothing." The People fail to explain, however, how evidence that Gomez and his cohorts ended up looking for something to steal proves that they started their attack on the victim with the intent to steal something from him.

In this aspect, the case is distinguishable from Jesus O. There, two assailants followed the victim and his three friends into an alley, asked him if he had any money, then started a fight when he said he did not. (In re Jesus O., supra, 40 Cal.4th at p. 861.) After the victim and his companions fled down the alley and jumped over a fence, the victim discovered that his cellular telephone was missing, and one of the assailants was seen picking it up from the ground in the alley and putting it in his pocket. (Id. at p. 862.) On these facts, the Supreme Court concluded that a "generalized intent to steal at the time the telephone was on the victim's person" was shown by the evidence that, "while the telephone was still on [the victim's] person, the juvenile asked him if he had any money." (Id. at p. 868.) According to the court, "[t]his evidence support[ed] a finding that the juvenile and his cohort intended to steal property of some kind, even if not specifically the telephone, when the assault that caused [the victim] to drop the telephone began." (Ibid.)

Here, unlike in Jesus O., the People do not point to evidence of anything that occurred at the outset of the assault that had a tendency in reason to show a generalized intent to steal from the victim at that time. The fact that Gomez and his cohorts may have ended up trying to steal from the victim once he was incapacitated does not, without more, support a reasonable inference that they began their attack on him with the intent to steal. Indeed, based on all of the evidence, the most reasonable inference was that Gomez and his companions attacked the victim simply because he was a member of a rival gang.

The People point to evidence that Gomez told police Alvarado went through the victim's pockets as further evidence of a generalized intent to steal before the attack began. The statement in question was that Gomez thought Alvarado went through the victim's pockets, not that he in fact did so. In any event, this evidence is no more probative of a preconceived intent to steal than the evidence suggesting that Gomez and/or the others pulled down the victim's pants and underwear. Nothing about what the three assailants ended up doing, by itself, has a tendency in reason to prove what their intent was at the outset of the attack.

Finally, the People assert that "the security cameras at the [gas] station captured audio of the attack and showed the attackers . . . fleeing the gas station." According to the People, "[t]he jury could have rationally accepted the prosecutor's argument . . . that the audio and video show that, after administering the final blows, the attackers took off and got into their car without stopping to look through the victim's pockets or pick up his cell phone." In the People's view, "[g]iven this, the jury could also have rationally deduced that [Gomez] and his fellow attackers formed the intent to steal before and not after the beating."

It is true the prosecutor argued based on the audio and video that "immediately after" what the prosecutor believed was the sound of "the fatal blows," Gomez and his cohorts were "running towards the car," which (in the prosecutor's view) meant "[t]hose pants had to be taken down before that." The prosecutor offered this argument in support of the robbery charge, in an effort to convince the jury that Gomez took the phone "before or during the application of force." It appears, however, that Gomez's jury did not credit this argument. During deliberations, the jury sent a note asking, "If the intent to take the property is formed within moments, but after the last blow, is that still considered during the time the fear or force is being used?" The court reread certain instructions, then said, "the easy answer is the intent to take the property must be formed before or during the time the defendant used force or fear." Thereafter, the jury found Gomez not guilty of robbery.

Had the jury credited the prosecutor's argument, based on the audio and video of the incident, that the victim's pants were taken down during the attack, before the final blows were struck, then the jury could have been expected to find Gomez guilty of robbery, as the prosecutor urged, but the jury did not do so. It would be anomalous for us to uphold Gomez's conviction for grand theft based on a theory the jury found unpersuasive when the prosecutor offered it as basis for the robbery charge.

In any event, even if the evidence could be reasonably interpreted as supporting the conclusion that the victim's pants were taken down before the last blows were struck, because there was not time to take them down afterwards, it still does not follow that there was a reasonable evidentiary basis for the jury to infer that Gomez and his cohorts harbored the intent to steal at the outset of their attack. That the assailants may have undertaken to search a rival gang member for valuables while they were attacking him does not, without more, prove they attacked him with the intent to steal from him.

"A reasonable inference . . . 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.'" (People v. Morris (1988) 46 Cal.3d 1, 21.) Here, there was no evidence from which the jury could reasonably infer (as opposed to speculate) that Gomez and his cohorts harbored the intent to steal from the victim at the time they began their attack on him. Accordingly, his conviction of grand theft on the theory from Jesus O. cannot stand. Because the evidence was sufficient to support a conviction of petty theft, however, we will modify the judgment to reduce the degree of Gomez's theft conviction rather than reversing the theft conviction altogether.*fn4

B

Sufficiency Of The Evidence Of The Norteno Gang's Primary Activities

Gomez's conviction of active participation in a criminal street gang and the gang enhancements on his convictions of murder and grand theft all depended on proof that the Norteno gang in which Gomez is an active participant qualifies as a "criminal street gang" under the Street Terrorism Enforcement and Prevention Act, also known as the STEP Act. (§ 186.20 et seq.) "[T]o subject a defendant to the penal consequences of the STEP Act, . . . the prosecution must prove that the gang . . . has as one of its primary activities the commission of one or more of the criminal acts enumerated in [section 186.22]." (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) Section 186.22 identifies numerous crimes that can satisfy this requirement. (See § 186.22, subds. (e) & (f).) Here, however, the jury was instructed that, to constitute a criminal street gang, the gang must have "as one or more of its primary activities the commission of . . . murder or robbery."

Gomez contends the testimony of the gang expert here "was based on a definition of criminal street gang that omitted the element requiring proof that its primary activities must be one or more of the criminal acts specified in section 186.22(e)." He further contends that "[n]o other [legally sufficient] evidence . . . supported the 'primary activities' element." Accordingly, he asserts that his conviction of the gang crime and the gang enhancements on his other two convictions must be set aside. Again, we agree.

As our Supreme Court has explained, "Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group's primary activities. Both past and present offenses have some tendency in reason to show the group's primary activity (see Evid. Code, § 210) and therefore fall within the general rule of admissibility (id., § 351)." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) As the court further explained, however, while "admissible to establish the statutorily required primary activities of the alleged criminal street gang," "evidence of either past or present criminal acts listed in subdivision (e) of section 186.22 is" "[n]ot necessarily" "alone . . . sufficient to prove the group's primary activities." (Sengpadychith, at p. 323.) This is so because "[t]he phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations" and "[t]hat definition would necessarily exclude the occasional commission of those crimes by the group's members." (Ibid.) The court explained that "[s]ufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony," such as testimony by "a police gang expert . . . that the gang . . . was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies." (Id. at p. 324.)

Under Sengpadychith, to prove the Nortenos are a criminal street gang based on the instructions the jury was given here, the prosecution had to prove that one of the principal occupations of that gang was the commission of murder and/or robbery. The prosecution could have done this by offering evidence that Norteno gang members have consistently and repeatedly committed one or both of those crimes or by offering expert testimony that the Norteno gang is primarily engaged in the commission of one or both of those crimes. As Gomez points out, however, the prosecution did neither of these things.

The prosecution called Detective Jared Pettitt of the San Joaquin County Sheriff's Department to testify (among other things) "about whether or not, in [his] opinion, Nortenos is a criminal street gang as defined by the Penal Code." At the outset of his testimony on that point, the prosecutor asked Detective Pettitt to provide "the definition in the Penal Code of a criminal street gang," and he replied that it was "any ongoing group or organization, with three or more members, with a common sign or symbol, that participate[s] in a pattern of criminal activity." Detective Pettitt went on to testify about a documented Norteno gang member who was convicted of a robbery that occurred in September 2007 and another documented Norteno gang member who was convicted of an assault with a firearm that occurred in December 2007. Detective Pettit testified that he was relying on "that . . . type of evidence" in concluding that "Nortenos engage in a pattern of criminal behavior." He then expressed his opinion, based on the definition he had previously given, that "Nortenos are a criminal street gang as defined by the Penal Code."

As Gomez points out, the definition of a criminal street gang that Detective Pettitt relied on in his testimony omitted the "primary activities" element that is part of the gang statute. Thus, he never expressed an opinion on that element. Additionally, of the two specific past offenses to which he testified in addressing the "pattern of criminal behavior" element, only one of them (the robbery) qualified as a crime the jury was later instructed could satisfy the "primary activities" element.

Despite this shortcoming in Detective Pettitt's testimony, the People argue that "the record contains sufficient evidence from which a trier of fact could reasonably conclude that murder is one of the Norte[n]os' primary activities." Specifically, the People rely on Detective Pettitt's testimony that (1) "[g]angs thrive off fear and intimidation"; (2) "it benefits the gang . . . any time gang members commit violent acts"; (3) "there's a high percentage any time a Sure[n]o is near Norte[n]os . . . that violence will occur"; and (4) "[t]he true hard-core gang members will take advantage of any opportunity to strike the enemy." The People argue that "[f]rom this, the jury could conclude that one of the Norte[n]o gang's primary activities is attacking members of the Sure[n]o gang. And considering the totality of Pettit's testimony, the jury could reasonably deduce that one of the Norte[n]os' primary activities is killing Sure[n]o gang members."

Even if we accept the People's former premise -- that from these snippets of Detective Pettitt's testimony the jury could have reasonably concluded that one of the primary activities of the Norteno gang is to attack members of the Sureno gang -- it does not follow from these snippets that a primary activity of the Nortenos is to murder Surenos. Furthermore, the People offer no explanation for their latter premise -- that "the totality of Pettit's testimony" reasonably supports the conclusion that the murder of Surenos is a primary activity of the Norteno gang.

Noting that under Sengpadychith "the trier of fact may look to a gang's present criminal activities when determining whether one of its primary activities is one of the crimes listed in section 186.22," the People contend that evidence of the murder of the victim here "provided the jury with substantial evidence that one of the primary activities of the Norte[n]o gang is to attack and kill rival Sure[n]o gang members." A single murder by gang members, however, is not enough to prove that the gang consistently and repeatedly commits murders. Even combined with Detective Pettitt's testimony, the evidence of the present crime was not enough to prove the "primary activities" element necessary to establish the Nortenos as a criminal street gang within the meaning of the STEP Act.

Because the prosecution failed to provide the jury with substantial evidence that one of the primary activities of the Nortenos is the commission of murder and/or robbery, the prosecution failed to prove in this case that the Nortenos are a criminal street gang. Accordingly, Gomez's conviction for active participation in a criminal street gang must be reversed and the gang enhancements on his convictions of murder and theft must be stricken.*fn5

II

Orozco's Appeal

We appointed counsel to represent Orozco on appeal. Counsel filed a Wende brief that sets forth the facts of the case and requests that this court review the record and determine whether there are any arguable issues on appeal. Orozco was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from Orozco. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to Orozco.

DISPOSITION

The judgment against Orozco is affirmed.

Gomez's conviction for active participation in a criminal street gang is reversed, the judgment against him is modified to reduce his theft conviction to petty theft and to strike the criminal street gang enhancements on the murder and theft convictions, and the case is remanded for resentencing as to Gomez only.

I concur: BLEASE , J.

I concur in the opinion except at to part IA of the Discussion in which I concur in the result.

RAYE , P. J.


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