(Super. Ct. Nos. SF111174A, SF111174B)
The opinion of the court was delivered by: Robie , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...