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People v. Bermudez

California Court of Appeals, Third District, Yolo

September 25, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
ADOLFO RODRIGUEZ BERMUDEZ, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

          APPEAL from a judgment of the Superior Court of Yolo County Nos. CRF130605, CRF140612, Stephen L. Mock and David W. Reed, Judges. Affirmed.

          Jacquelyn Larson, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, for Plaintiff and Respondent.

          MURRAY, J.

         This is a consolidation of two appeals from two jury trials of defendant Adolfo Rodriguez Bermudez. The first trial involved the possession of a concealed dirk. The second involved an assault with a deadly weapon with a vehicle done to benefit a gang. Defendant was sentenced to a 21-year four-month aggregate term.

         On appeal, defendant contends (1) the statute defining a dirk (Pen. Code, § 16470)[1] is unconstitutionally vague; (2) the trial court erred in allowing two officers to testify to the legal definition of a dirk; (3) a gang expert provided improper opinion testimony that defendant committed a crime to benefit a gang; and (4) insufficient evidence established the existence of a criminal street gang under section 186.22 because testimony concerning the predicate felonies was admitted in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). In supplemental briefing, defendant contends that (5) remand is required so the trial court may consider exercising its discretion under Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2) (SB 1393); and (6) the imposition of fines and fees violated his right to due process and freedom from excessive fines under People v. Dueñas (2019) 30 Cal.App.5th 1157.

         In the published portion of this opinion, we hold that the dirk statute is not unconstitutionally vague. Our high court previously rejected a void for vagueness challenge to the dirk statute. (People v. Rubalcava (2000) 23 Cal.4th 322 (Rubalcava).) Defendant, however, raises new arguments, which we reject. Doing so, we first conclude the statute is definite enough to provide a standard of conduct for those whose activities are proscribed. We specifically reject defendant’s contention that the term “may” in the statutory language, “capable of ready use as a stabbing weapon that may inflict great bodily injury, ” makes the statute unconstitutionally vague. When read in context with the rest of the words in the statute, the word “may” is definite enough to place a defendant on notice of the type of instrument that is prohibited. We also reject defendant’s argument, based on the vagueness analysis employed by the United States Supreme Court in Johnson v. United States (2015) 576 U.S. ___ [135 S.Ct. 2551] (Johnson), that the word “may” connotes an undefined and unconstitutionally vague risk assessment. The Johnson analysis has no application to laws that require gauging the riskiness of conduct in which a person engages.

         Second, we conclude the knowledge element renders the statute definite enough to provide a standard for police enforcement and ascertainment of guilt. To be subject to arrest, a person’s conduct must give rise to probable cause that he knew the concealed instrument may be used as a stabbing weapon. To be convicted, that knowledge must be proved beyond a reasonable doubt.

         Also in the published portion of this opinion, we hold that a gang expert’s testimony about gang enhancement predicate offenses does not violate Sanchez, supra, 63 Cal.4th 665, so long as the predicate offenses do not involve defendant or individuals involved in the defendant’s case. Such predicate offenses are chapters in a gang’s biography and constitute historical background information, not case-specific information.

         We will remand to allow the trial court to consider exercising its discretion under SB 1393. During that remand, as the People concede, defendant may request a hearing on his ability to pay. In all other respects, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         The Concealed Dirk Case

         When a sheriff’s deputy noticed a black Mustang with nonfunctioning break lights, he followed it until the Mustang made a sudden turn into a driveway, and the deputy lost contact. When the deputy located the Mustang several minutes later, it was stopped. The deputy saw the driver’s side door open, and defendant was walking around the front. The deputy asked defendant for his driver’s license. Defendant said he didn’t have one. The deputy subsequently performed a pat down search and found something in defendant’s right front pant pocket.

         The object was solid metal, about as thick as a pen, and it appeared to have been broken off a longer piece of metal. One end had been ground down on the sides to form a point, which had been dulled down. The other end had red tape wrapped around it to form a handle. The deputy testified the object was completely concealed within defendant’s pant pocket with the handle up, allowing defendant to retrieve it “with the point out.” The deputy testified that the object could “most definitely” be used as a stabbing instrument and further testified it could inflict “injury or death.”

         A friend who had been in the Mustang was called as a witness by defendant and testified that defendant was using the metal object for his stereo to push a button that wasn’t working. On cross-examination, the friend denied any memory of telling the arresting officer the metal object was something she used for her hair.

         A jury found defendant guilty of carrying a concealed dirk or dagger (§ 21310) and driving on a suspended or revoked license (Veh. Code, § 14601.2 subd (a)). The trial court separately found defendant had a prior strike conviction and had served a prior prison term.

         The Assault with a Deadly Weapon Case

         The victim was driving in Woodland, with his son in the car, when he saw a black Honda parked on the side of the road. As he drove by, the Honda suddenly accelerated hitting him.

         Thinking he had been in an accident, the victim pulled over. The Honda collided into him a second time. The second impact was a “T-bone, ” taking off the front and back doors and breaking windows.

         The victim recognized defendant as the driver, testifying at trial: “he looked at me when he crashed and then he flossed his tattoo on his head and... I recognized him.” Defendant had turned, pointed to the back of his head, and yelled “EST, ” which the victim took to mean defendant’s gang, Eastside Trece. Defendant then drove away. The victim drove to the next block and called 911. In the 911 call, the victim told the operator he knew defendant’s wife and where she lives.

         Shortly after the incident, the victim spoke with a responding officer. He told the officer he recognized defendant[2] and thought the crash had something to do with an earlier altercation, involving the victim, defendant, and other Sureño gang members.

         A couple of months before the assault with a vehicle, the victim was dropping off his cousin, who associates with Norteños, when a car pulled up and a group of what looked to be gang members, including defendant, got out of the car and “started talking gang shit.” The group hurled insults related to Northerners at both the victim and his cousin. At some point, a security guard showed up and “kicked everyone out.”

         The victim had previously associated with southern gangs, but because his family members are Northerners, he now associates with Northerners. The victim testified, “since they seen me with him, ... they thought I was affiliating with Northerners now, too.” He also testified that he thought defendant felt disrespected.

         The victim testified about other altercations. In 2006, he was present when a group of Southerners he associated with were in a fight with a Northerner - though he claimed he was not part of the fight. In 2010, the victim was in a fight with an Eastside Trece member. He explained that several Eastside Trece members had approached him, and he defended himself.[3] An officer who responded to the 2010 incident testified the victim had been in a fight with several Eastside Trece members and hit one of them with a tire iron.

         An officer who was also involved in the concealed dirk case testified about contacts he personally had with defendant in 2005, 2007, and 2009. During the first two contacts, defendant admitted his involvement in the Sureño gang. The officer had also found “gang music” during a search of defendant’s bedroom and, in 2007, defendant had a “EST” tattoo on his head. We summarize additional gang evidence, post.

         A jury found defendant guilty of two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) and found both were done for the benefit of, at the direction of, or in association with a gang (§ 186.22, subd. (b)). It also found defendant guilty of driving on a suspended license. (Veh. Code, § 14601.2.)

         Sentencing

         The trial court sentenced defendant to a 21-year four-month aggregate term. For the assault with a deadly weapon case, the court imposed an eight-year term for one assault count (the upper term doubled for the strike) along with a five-year gang enhancement. (§ 186.22 (b)(1).) It also imposed a five-year prior serious felony enhancement and a two-year on-bail enhancement. (§ 12022.1(b).) A one-year prior prison term enhancement was stayed pursuant to section 654. Concurrent terms of eight years for the other assault count, and 180 days for driving on a suspended license were also imposed.

         In the dirk case, the court imposed a consecutive 16-month term for the concealed dirk (§ 21310) (one-third the middle, doubled for the strike) along with a 30-day concurrent term for driving on a suspended or revoked license.

         DISCUSSION

         I. The Void for Vagueness Challenge

         A. Defendant’s Contentions

         Section 21310 proscribes carrying concealed a “dirk or dagger.”[4] Section 16470, in pertinent part, defines a dirk or dagger as “a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death.” (Italics added.) Focusing on the italicized text, defendant contends section 16470’s definition of a dirk is unconstitutionally vague in that it (1) contains vague terms that fail to give notice of what is prohibited, and (2) grants police and prosecutors unfettered discretion over who to pursue. We disagree.

         In addressing these contentions, we first discuss the statute’s legislative purpose and how it came to include the language now challenged on appeal. (See People v. Grubb (1965) 63 Cal.2d 614, 621 (Grubb) [in determining a vagueness challenge related to statutory terms, consideration of legislative history and statutory purpose is appropriate].)

         B. Purpose and Historical Overview of the Concealed Dirk Statutes

         The prohibition against carrying concealed dirks and daggers was enacted to combat the dangers of concealed weapons. (People v. Mitchell (2012) 209 Cal.App.4th 1364, 1371 (Mitchell).) By prohibiting concealment, third parties are protected from the risk of surprise attack by a person carrying such weapons. (Ibid.)

         The concealed dirk statute was formerly codified in section 12020. Until January 1994, there was no statutory definition of a dirk or dagger; rather, those terms had been judicially defined. (Rubalcava, supra, 23 Cal.4th at pp. 328-329.) In 1993, “the Legislature [statutorily] defined ‘ “dirk” or “dagger” ’ to mean ‘a knife or other instrument with or without a handguard that is primarily designed, constructed, or altered to be a stabbing instrument designed to inflict great bodily injury or death.’ ” (Castillolopez, supra, 63 Cal.4th at p. 328, citing § 12020, subd. (c)(24), as added by Stats. 1993, ch. 357, § 1, p. 2155, italics added.)

         This definition proved overly narrow, making it difficult for prosecutors to establish that the primary purpose of items such as butcher knifes, hunting knifes, or ice picks was to cause death or great bodily injury when carried for potential use as a weapon. (Castillolopez, supra, 63 Cal.4th at p. 328.) Concerned that gang members carrying concealed, lethal knives were “essentially immune from arrest and prosecution, ” the Legislature amended the statute in 1995, replacing “primarily designed, constructed, or altered to be a stabbing instrument” with “capable of ready use as a stabbing weapon.” (Rubalcava, supra, 23 Cal.4th at p. 330, citing Sen. Rules Com., 3d reading analysis of Assem. Bill No. 1222 (1995-1996 Reg. Sess).) “[T]he Legislature recognized that the new definition may criminalize the ‘innocent’ carrying of legal instruments such as steak knives, scissors and metal knitting needles, but concluded ‘there is no need to carry such items concealed in public.’ ” (Rubalcava, at p. 330, citing Sen. Com. on Crim. Procedure, Analysis of Assem. Bill No. 1222 (1995-1996 Reg. Sess.) as amended May 31, 1995, pp. 3, 5-6.) But the change ultimately raised concerns that the definition was too broad as applied to legal folding knives and pocketknives. (Ibid.)

         So in 1997, the Legislature again amended the statute, this time to provide that folding knives and pocket knives would qualify as “capable of ready use as a stabbing weapon” only if the blade was exposed and locked into position. (Castillolopez, supra, 63 Cal.4th at p. 329, citing § 12020, subd. (c)(24) as amended by Stats. 1997, ch. 158, § 1, p. 778.) Section 12020 was later repealed and reenacted without substantive change as section 16470 - the statute now challenged on appeal. (Stats. 2010, ch. 711, § 6, pp. 4146, 4150.)

         C. Analysis

         1. Void for Vagueness Principles

         Due process requires “a reasonable degree of certainty in legislation, especially in the criminal law....” (People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 389; People v. Custodio (1999) 73 Cal.App.4th 807, 811 (Custodio), italics added.) To satisfy due process and survive a vagueness challenge, a criminal statute must “ ‘ “ ‘be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.’ ” ’ ” (People v. Morgan (2007) 42 Cal.4th 593, 605 (Morgan).) More specifically, a law must “ ‘provide adequate notice to those who must observe its strictures’ ” and must not “ ‘ “impermissibly delegate[] basic policy matters to police[] [officers], judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” ’ ” (Rubalcava, supra, 23 Cal.4th at p. 332.)

         When considering a void for vagueness challenge, courts employ a “ ‘strong presumption that legislative enactments “must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.” ’ ” (Morgan, supra, 42 Cal.4th at p. 605; People v. White (2016) 3 Cal.App.5th 433, 453 (White).) Concomitantly, to prevail on a vagueness challenge, a defendant must show the statute “ ‘ “is impermissibly vague in all of its applications.”’ ” (Morgan, at pp. 605-606; White, at p. 454.)

         Merely identifying some instances where the statute’s application is uncertain or ambiguous is insufficient to sustain a vagueness challenge. (Morgan, supra, 42 Cal.4th at pp. 604-606 [asportation element in kidnapping requiring moving the victim a “substantial distance” held not unconstitutionally vague].) Indeed, “ ‘[m]any, probably most, statutes are ambiguous in some respects and instances invariably arise under which the application of statutory language may be unclear.’ ” (People v. Ervin (1977) 53 Cal.App.4th 1323, 1328 [rejecting vagueness challenge as to “immediately after” and “in the vicinity” in statute punishing robberies taking place while the victim is using an ATM “or immediately after the person has used an [ATM] and is in the vicinity of the [ATM]”].)

         Accordingly, as to the requirement that the law be definite enough to provide notice of a standard of conduct for those whose activities are prescribed, all that is required is that the statute “ ‘define the proscribed offense “with sufficient definiteness that ordinary people can understand what conduct is prohibited.” ’ ” (People v. Ledesma (2017) 14 Cal.App.5th 830, 835 (Ledesma), citing Kolender v. Lawson (1983) 461 U.S. 353, 357 [103 S.Ct. 1855].) A statute is not void for vagueness “ ‘ “if any reasonable and practical construction can be given to its language.” ’ ” (Morgan, supra, 42 Cal.4th at pp. 605-606.) Nor are statutory terms impermissibly vague if “ ‘their meaning can be objectively ascertained by reference to common experiences of mankind.’ ” (Id. at p. 606.)

         By these standards, section 16470’s definition of a dirk is not unconstitutionally vague.

         2. Notice of Prohibited Activity

         a. The Terms “May” and ...


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