California Court of Appeals, Fourth District, First Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of San Bernardino County No. FVI1002669, Eric M. Nakata, Judge.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
HUFFMAN, Acting P. J.
The jury convicted Robert Frank Velasco of attempted first degree robbery (Pen. Code,  §§ 664/211; count 1); assault with a firearm (§ 245, subd. (a)(2); count 4); possession of a firearm by a felon (former § 1201, subd. (a)(1); count 5); and street terrorism (§ 186.22, subd. (a); count 6). The jury also found, as to counts 1 and 4, that Velasco personally used a firearm within the meaning of section 12022.5, subdivision (a). The jury found Velasco not guilty of first degree burglary (§ 459; count 2). It also returned a not true finding on the robbery in concert within the meaning of section 213, subdivision (a) in connection with count 1. In addition, the jury was unable to reach verdicts that counts 1, 4, and 5 were committed for the benefit of, at the direction of, or in association with, a criminal street gang, within the meaning of section 186.22, subdivision (b)(1).
Velasco subsequently admitted one prior strike conviction (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)); one prior serious felony conviction (§ 667, subd. (a)(1)); and one prison prior (§667.5).
The court sentenced Velasco to prison for 28 years eight months.
Velasco appeals, contending: (1) insufficient evidence supports his conviction for street terrorism; (2) his verdict under count 1 must be reduced to second degree robbery under section 1157; and (3) the court should have stayed portions of his sentence for counts 4 and 5 under section 654.
In the published portion of this opinion, we determine that Velasco's conviction for street terrorism is not supported by substantial evidence. Specifically, as a matter of first impression, we interpret section 186.22, subdivision (a) as requiring the defendant to promote, further, or assist in any felonious criminal conduct with a member of the defendant's criminal street gang. Because there is no evidence in the record that Velasco engaged in any felonious activity with another member of his gang, his conviction for street terrorism cannot stand.
In the unpublished portion of this opinion, we determine Velasco's other claims lack merit. However, because we conclude substantial evidence does not support Velasco's conviction for street terrorism, we do not reach Velasco's argument that his sentence under count 5 should be stayed pursuant to section 654.
In November 2010, Marvin Bransford lived with his girlfriend Joanne in a mobile home park in Victorville. Their mobile home was located in space No. 9. The home had a front and back door, two bedrooms toward the rear with a bathroom in between them, and a kitchen and living area. Bransford and Joanna slept in one bedroom, while the other bedroom was vacant, but had been occupied by Bransford's mother until she moved to a convalescent home. Brenda de la Paz had lived in the trailer park in space No. 5, but moved out. She returned to the trailer park frequently to visit people she knew. Bransford's half-brother Billy Stephens also lived in the trailer park.
The night of November 28, 2010, at around 11:00 p.m., de la Paz knocked on Bransford's door. It was a cold night and she was not dressed for the weather. She asked Bransford if she could spend the night. He agreed, and allowed her to sleep in the spare bedroom. When Bransford got out of bed at 9:00 or 10:00 a.m. the next morning, she was gone. She returned by herself at 12:00 or 1:00 p.m. She came to the door, said she would be back later, and left. That afternoon, de la Paz, an unidentified man, and Velasco, went over to Stephens's trailer. She introduced Velasco to Stephens as "Joker." One of the two men asked Stephens if he had any money. Stephens said he did not. Stephens talked to the three for several minutes and then they left.
The group proceeded to Bransford's trailer. They pulled up in an older white Honda and parked. De la Paz was in the back seat. The driver stayed in the car, while de la Paz and Velasco got out. Velasco was dressed for the cold weather and was wearing a scarf, which covered most of his face.
When they arrived, Bransford was out in the yard working. De la Paz asked Bransford if they could come in. As they were entering the residence, de la Paz introduced Velasco as "Toker." Once they were inside, Bransford sat down on the couch in the living room, while Velasco and de la Paz remained standing. De la Paz accused Bransford of taking her coat, and said she was missing $40, which Bransford owed her. Bransford told de la Paz that he had no idea what she was talking about. Velasco asked Bransford, "Have you ever been pistol whipped?" Bransford responded, "No." Velasco removed a handgun from his waistband, and struck Bransford three or four times in the head and face with the gun. Velasco said, "You have to have her
$40." Bransford told Velasco he did not owe de la Paz any money and did not have $40. Velasco struck him three or ...