Filed 3/4/22 P. v. Astorga CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed.

Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnson, Supervising Deputy Attorney General, and David W. Williams, Deputy Attorney General, for Plaintiff and Respondent.

By information filed August 2017, defendant Aric Aaron Astorga was charged for the first-degree murder of Luciano Rubio by personally and intentionally discharging a firearm causing great bodily injury and death. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).)[1] The information also alleged that defendant committed the murder for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(C).

In August 2019, a jury convicted defendant as charged, and found the firearm and gang allegations true. Defendant was sentenced to 25 years to life for murder, plus a consecutive term of 25 years to life for the firearm enhancement. The court imposed a minimum parole eligibility date of 15 years under the gang enhancement (§ 186.22, subd. (b)(4)), and imposed various fines and fees.

On appeal, defendant challenges the sufficiency of the evidence to support the jury’s findings sustaining the gang enhancement. We affirm the judgment.

FACTUAL BACKGROUND

A. The Murder

In the early morning hours of November 14, 2014, deputies from the Los Angeles County Sheriff’s Department responded to a warehouse complex in the City of Los Angeles. After walking through a gated fence and into the warehouse yard, the deputies discovered the body of Luciano Rubio lying face down in a pool of blood near an open doorway to the warehouse. Rubio had been pistol whipped and shot three times with a .357 magnum revolver: twice in the right shoulder and once in the back of the head. He was pronounced dead around 6:00 a.m.

Inside the warehouse, investigating officers located a living space with couches, a table, and a large television. Criminalists collected fingerprints from a cup and Gatorade bottle inside the warehouse. The fingerprints matched those of Michael Perdomo, a gang member who went by the name “Little P.” According to Rubio’s best friend, Jose Perez, on November 12, 2014 (two days before the murder), Rubio was with Perez and Perdomo inside the warehouse. While hanging out, Perdomo accused Rubio of raping Perdomo’s former girlfriend and the mother of his child.[2]

The investigating officers and criminalists also searched an adjacent junkyard that was located on the opposing end of a retaining wall. Shoe print impressions were collected from the bed and hood of a pickup truck that had been parked against the wall. Also located on the pickup truck were palm and fingerprints, which had been placed on the bed, passenger side hood, and top of the truck. Subsequent comparisons of the fingerprints, and of the shoe pattern and size, matched those of defendant.

B. Defendant’s Arrest

On January 12, 2015, Baldwin Park Police Department Officer Mike Hemenway pulled behind a suspected stolen vehicle. After following the car into a parking lot, Officer Hemenway watched Alexandro Coto-Martinez get out the vehicle and flee. As he chased Coto-Martinez on foot, Officer Hemenway called for support. Officer Martin Herrera located the stolen vehicle and quickly realized it had been abandoned. After searching the area for several minutes, Officer Herrera stopped defendant, who was short of breath and “sweating profusely.”

A loaded .357 revolver was recovered approximately 12 feet away from where Officer Hemenway detained Coto-Martinez. Testing of the firearm against three bullets collected from Rubio’s autopsy confirmed that the same firearm had been used to kill Rubio. Additional forensic testing revealed defendant’s DNA on the gun trigger and trigger guard.

C. The Jailhouse Conversation

To conduct a so-called Perkins[3] operation in July 2015, defendant was placed in a jail cell with an inmate who portrayed himself as a member of the Huntington Park Locos who had spent several years in prison.[4] During his conversation with the inmate, defendant described the shooting. The conversation was recorded, and the recording was played for the jury, with a transcript for assistance.

Defendant introduced himself as “Twisted” from Eastside Bolen, and indicated he was a “big dude” in the gang who had come up from the Rascals, a clique or subset of the gang. The inmate told defendant he had “just met [his] home boy” from Eastside Bolen. Defendant stated he was “all the time every time, everybody knows me like -- [¶] . . . [¶] Like oh that’s Twist[ed] . . . from East Side Bolen.” In the last “couple months everybody knew [to] watch out for” defendant, because he was known for “running up on people” with a .357 revolver and .44 magnum. Prior to his arrest, defendant “was on it” with the .357 revolver. Defendant then described the shooting of Rubio.

It is unclear from the record, but at some point in time defendant had heard a rumor that a “homie’s baby momma” had been raped. One day, a guy named “Suso,” a “homie” who “bangs with [defendant’s] clique,” introduced defendant to his “uncle,” an older gang member named Little P. Little P. was not from defendant’s neighborhood, but was a self-proclaimed member of a gang in Duarte.[5] Little P. told defendant that the woman named in the rumor was his former girlfriend. Little P. told defendant “we’re going to see what you’re about . . . you know, (inaudible) homie. You hear me?” Defendant replied, “you want to pressure me, I’ll show you who the fuck I am.”

Defendant “roll[ed] around” in a car with Little P. and Suso for two-to-three hours before traveling to a warehouse to find the man who had raped Little P.’s former girlfriend. When they arrived, Suso kept watch outside while defendant and Little P. went into the warehouse.[6]

Defendant found Rubio laying on a couch inside the warehouse. Defendant approached Rubio and pistol whipped him several times before he “let off three times” with his gun, dropping Rubio “like a sack of potatoes.” After the shooting, defendant got into the car, emptied the revolver into his pocket,[7] and reloaded the gun “in case the fools I’m with start getting fucking stupid.”

When he got “back to the hood,” defendant treated everyone differently, like each person was “suspect.” When asked why, defendant admitted that “everybody kinda [sic] [knew] what I did or some shit.” Defendant never saw Little P. again. He thought maybe Little P. had “pretend[ed] like he was connected” to persuade defendant to killing Rubio.

D. The Gang Expert

The prosecutor called Rialto Police Department Officer Adam Acuna to testify as an expert on gang activity in Baldwin Park. Prior to his current assignment, Officer Acuna was an officer with the Baldwin Park Police Department for approximately 11 years. During that time, Officer Acuna had been assigned to the gang activity prevention unit, and had contact with a total of about 800 gang members. Officer Acuna also had contacts with “high-ranking individuals within the prison system” while assigned to a task force unit with the California Department of Corrections. As a qualified gang expert, he had testified in “15 [or] 20” superior court proceedings.

Officer Acuna explained that Eastside Bolen originated in Baldwin Park around the late 1950’s. The gang has five different subsets or “cliques”: the Midget Charros, Charros, Locos, Dukes, and the Rascals. As of the date Officer Acuna testified, he estimated the gang had upwards of 300 members, “over a hundred” of which he had spoken to while working in the Baldwin Park area. Eastside Bolen was responsible for vandalism, theft, robbery, burglary, assault, and murder.

During a prior consensual encounter with Officer Acuna, defendant admitted he was a member of Eastside Bolen. After reviewing a set of photographs taken of defendant, Officer Acuna testified that defendant has “Bolen” tattooed over his right eyebrow, an “E S” tattooed on the side of his head, and an “R,” indicating the Rascals, tattooed on his chin.[8]

According to Officer Acuna, reputation, respect, and fear are important in gang culture. A gang makes itself known “[b]y fear, intimidation. By the crimes they commit. By how bold they want to be as far as their criminal activity.” Also important is an individual’s reputation within a gang, and the reputation of the gang itself. Members of a gang “want other people to hear about their gang.” A gang member gains reputation and respect by defending the reputation of the gang and by committing crimes. The more severe the crime, “the more fear you put into the public, you’re gonna [sic] gain more status.” Murder is considered “the highest level of respect” a member could gain for the gang. From that point forward, if the gang wanted “to commit a crime or . . . sell drugs and people know that you’re Eastside Bolen and Eastside Bolen is willing to kill somebody, then they’re not gonna [sic] necessarily mess with you.”

The prosecutor posed a hypothetical question mirroring the facts as established by the trial evidence, asking whether the murder of Rubio was committed for the benefit of Eastside Bolen. Officer Acuna replied that in his expert opinion, it was. He explained: “This individual is being challenged as to what his gang status and his gang . . . is about by going and pushing—once he’s challenged and he’s pushing forward with this crime . . . and in taking that next level of executing another human being, . . . his résumé is elevated to another status.” Gang members can “evolve” from a “lower end” member in the gang into the “ranks of a more serious” associate who commits “heavier crimes” like murders and assaults.

According to Officer Acuna, the murder would also “elevate the status of Eastside Bolen,” as “this individual would be a representation of Eastside Bolen. . . . There’s another individual from . . . from Eastside Bolen that is willing to commit a crime such as that.” Officer Acuna did not have personal knowledge that word of Rubio’s murder had “gotten out to anybody other than the individuals that were involved.”[9] Despite his lack of personal knowledge, Officer Acuna still believed the murder would benefit Eastside Bolen because defendant would “hav[e] somebody to vouch for him down the road. And that’s the reason why they’re gonna [sic] do these crimes together so that somebody can vouch for them.”

E. Defense Evidence

Defendant called Perdomo’s former girlfriend to the stand for reasons not relevant to the issue in this appeal.

DISCUSSION

Defendant does not challenge his conviction for murder or the jury’s finding that he used a firearm. He challenges only the sufficiency of the evidence to support the gang enhancement imposed under section 186.22, subdivision (b).[10] As we shall discuss, we are not persuaded.

1. Governing Law and Standard of Review

Section 186.22, subdivision (b)(1) provides in pertinent part that “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” In other words, the crime “must be ‘(1) “committed for the benefit of, at the direction of, or in association with any criminal street gang,” and (2) “with the specific intent to promote, further, or assist in any criminal conduct by gang members.”’ [Citation.]” (People v. Vargas (2020) 9 Cal.5th 793, 821.)

We review the jury’s true finding on an enhancement for substantial evidence, “‘the same standard we apply to a conviction.’ (People v. Wilson (2008) 44 Cal.4th 758, 806.) ‘We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.’ (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) The standard is the same whether the prosecution relies on direct or circumstantial evidence. (People v. Valencia (2008) 43 Cal.4th 268, 290.)” (People v. Rivera (2019) 7 Cal.5th 306, 331 (Rivera).)

B. The Murder Was Committed in Association with Eastside Bolen

As to whether the murder was committed in association with Eastside Bolen, the evidence established the following. Defendant and Suso are members of the Rascals, the same clique or subset of Eastside Bolen. The plan to murder Rubio was the result of Suso introducing Little P., his “uncle,” to defendant. The three individuals then traveled to the warehouse together in the same car, and as defendant and Little P. broke into the warehouse, Suso kept watch outside. After defendant pistol whipped and shot Rubio multiple times, he got back into the car with Little P. and Suso, emptied the gun into his pocket, and the car drove away.

Suso’s participation during the murder is alone sufficient to support a finding that the murder was committed in association with Eastside Bolen. (See Albillar, supra, 51 Cal.4th at pp. 61–62; People v. Morales (2003) 112 Cal.App.4th 1176, 1198; In re Jose P. (2003) 106 Cal.App.4th 458, 464, 468 [upholding gang finding based in part on the fact that a fellow gang member acted as a lookout during the robbery], disapproved on another ground in People v. Prunty (2015) 62 Cal.4th 59.)

The evidence also establishes that the killing of Rubio, a crime for whom Eastside Bolen is known, was coordinated between several gang members, two of whom belonged to the same gang. (Compare People v. Hunt (2011) 196 Cal.App.4th 811, 820 (Hunt) [admission to the police that defendant and fellow gang member “came together to commit the robbery” as getaway driver and robber supported finding the robbery was committed in association with the gang]; People v. Weddington (2016) 246 Cal.App.4th 468, 485 [upholding gang enhancement in part because the crime was a signature of the gang].) Thus, sufficient evidence supports the finding that defendant committed the murder in association with the Eastside Bolen gang.

C. The Murder Was Committed for the Benefit of Eastside Bolen

Substantial evidence also supports the finding that the murder was committed for the benefit of Eastside Bolen. As with other types of expert witnesses, the prosecution may elicit testimony from a gang expert by asking hypothetical questions. (People v. Gonzalez (2006) 38 Cal.4th 932, 946.) A gang expert may render an opinion on the basis of a hypothetical question that asks the expert to assume the truth of specified facts, provided the hypothetical is “rooted in facts shown by the evidence.” (People v. Gardeley (1996) 14 Cal.4th 605, 618, disapproved on another ground in People v. Sanchez (2016) 63 Cal.4th 665; see People v. Ochoa (2009) 179 Cal.App.4th 650, 657 [“[a] gang expert’s testimony alone is insufficient to find an offense gang related”].)

“‘Expert opinion that particular criminal conduct benefited a gang’ is not only permissible but can be sufficient to support the . . . section 186.22, subdivision (b)(1), gang enhancement. [Citation.]” (People v. Vang (2011) 52 Cal.4th 1038, 1048.) That is precisely what happened in this case: based on a hypothetical scenario rooted in facts shown by the evidence, Officer Acuna opined that the Rubio murder benefitted Eastside Bolen.

Officer Acuna testified that the murder benefited Eastside Bolen by intimidating those who know about or deal with the gang. (See People v. Pettie (2017) 16 Cal.App.5th 23, 51 [the willingness to commit a crime “enhances the reputation of the gang as well as the reputation of the members who commit the crimes”]; Albillar, supra, 51 Cal.4th at p. 63 [by “‘putting notches’” in their own respective reputations, defendants benefitted and strengthened “‘the overall entity . . . as a result of it’”].) Officer Acuna provided an example of how the murder would make it easier for Eastside Bolen to commit future crimes: if the gang wanted “to commit a crime or . . . sell drugs and people know that you’re Eastside Bolen and Eastside Bolen is willing to kill somebody, then they’re not gonna [sic] necessarily mess with you.” (Accord, People v. Vazquez (2009) 178 Cal.App.4th 347, 351 (Vazquez) [violent crimes benefit the gang by “making it easier for the gang to operate”].)

We reject defendant’s argument that the jury’s true findings lack evidentiary support because “there was no evidence of anything done to demonstrate . . . that the shooting was for the benefit of a gang.” Contrary to what defendant suggests, there is no requirement that the People produce specific testimony from residents or the community.

Whether the community would recognize Eastside Bolen’s involvement in the murder is a matter that can be covered, as it was here, by expert testimony that defendant’s cohorts would “vouch for [defendant] down the road.” Expert testimony “that the perpetrators of this [crime] would tell at least one other person in the neighborhood about what they had done and it would get around the neighborhood and enhance their reputation in the gang and the gang’s status in the community” is sufficient evidence to support the opinion that the murder was done to benefit the gang. (Hunt, supra, 196 Cal. App.4th at p. 821; see Albillar, supra, 51 Cal.4th at p. 61 [the benefits of committing a crime with another gang member include sharing news of the crime with others and increasing “the bonds within the gang”].)

In any event, the prosecution did introduce evidence demonstrating the community’s awareness of Eastside Bolen’s involvement in the murder. During the Perkins operation, defendant himself told an inmate about his personal involvement in the murder as a member of Eastside Bolen. In doing so, he revealed that once he got “back to the hood,” he believed everyone was “suspect” because they “kinda [sic] [knew] what I did or some shit.” The evidence amply supports the gang expert’s opinion that the murder of Rubio benefited Eastside Bolen.

D. Defendant Acted With the Requisite Intent

Finally, defendant contends the evidence was insufficient to establish that he acted with the “specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) We disagree.

“Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” (People v. Villalobos (2006) 145 Cal.App.4th 310, 322; Albillar, supra, 51 Cal.4th at p. 68.)

It is true that defendant planned, coordinated, and carried out the murder of Rubio in concert with Little P., who was not affiliated with Eastside Bolen. But he also coordinated and carried out the murder with Suso, a member of the same clique in Eastside Bolen. This fact constitutes substantial evidence that defendant specifically intended to promote, further, or assist a fellow gang member.[11]

The facts of this case further support a finding that defendant “intended for the [Rubio] murder to have the predicted effect of intimidating [others], thus facilitating future crimes committed by himself and his fellow gang members.” (Vazquez, supra, 178 Cal.App.4th at p. 353.) Section 186.22, subdivision (b) “refers . . . to ‘any criminal activity,’ a phrase broad enough to encompass” not only the Rubio murder itself, but also future criminal activities. (Ibid.; see id. at p. 354 [“There is no statutory requirement that . . . the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing”].)

In sum, while the record might reasonably be reconciled with a contrary finding, it reflects sufficient evidence that defendant committed the murder for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. (Rivera, supra, 7 Cal.5th at p. 332; Albillar, supra, 51 Cal.4th at p. 60.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

CURREY, J.

MICON, J.*

*Judge of the Los Angeles County Superior Court, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.

[1] Subsequent statutory references are to the Penal Code.

[2] Originally charged as a codefendant in this case, Perdomo was not tried with defendant.

[3] Illinois v. Perkins (1990) 496 U.S. 292.

[4] Prior to placing the inmate in a cell with defendant, an investigating officer provided the inmate with information about the local gangs in Baldwin Park. The officer also asked the inmate to get information about who was involved in the murder.

[5] An investigating officer testified that he had met Perdomo in connection with this case. The officer testified that Perdomo was extensively tattooed and had “Duarte Eastside” tattooed across his back. The inmate with whom defendant was speaking told defendant that he had “heard that name [Little P.] before.”

[6] Earlier in the conversation, the inmate asked defendant if he was with people “[f]rom the hood.” Defendant stated, “No. One of them was, but he was keeping watch outside.” Defendant subsequently stated that Suso wanted to be in his “hood,” but “ain’t no way it’s going down after that, you hear me.”

[7] No shell casings were recovered at the scene of the murder.

[8] An investigating officer testified that as of July 2015 (approximately nine months after Rubio’s murder), defendant did not have tattoos on his face.

[9] Officer Acuna was not an investigating officer in this case, and was only called to testify as an expert on local gangs in Baldwin Park.

[10] Defendant does not contest that Eastside Bolen is a criminal street gang, or that he or Suso are members of Eastside Bolen.

[11] The planning and commission of a violent felony (here, murder) with a fellow gang member readily distinguishes this case from In re Daniel C. (2011) 195 Cal.App.4th 1350, on which defendant relies. (See id. at p. 1361 [“As to the robbery with which appellant was charged, there is no evidence that he acted in concert with his companions. Appellant’s companions left the store before he picked up the liquor bottle, and they did not assist him in assaulting [the victim]. Indeed, there is no evidence in the record that appellant’s companions even saw what happened in the store after they left”].)