P. v. Baltazar

Filed 6/26/07 P. v. Baltazar CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Raul A. Sahagun, Judge. Affirmed.

Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

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Andrew Baltazar was convicted of three counts of second degree robbery and one count of possession of a firearm by a felon, with findings that the robberies had been committed for the benefit of a criminal street gang, that Baltazar had used a shotgun during the commission of all three robberies, and that he had suffered two prior strike convictions. (Pen. Code, 211, 12021, subd. (a)(1), 186.22, subd. (b)(1)(C), 12022.53, subd. (b), 1170.12, subds. (a)-(d), 667, subds. (b)-(i).)[1] Baltazar appeals, challenging the sufficiency of the evidence in support of the gang enhancement and claiming the trial court should have stricken one of his prior strikes. We disagree and affirm the judgment.

FACTS

As Raymond Saucedo, Roman Solis, and Saul Lopez (the victims) got out of their car on a residential street, Baltazar and his cohort, Ted Alfredo Gabaldon (who is not a party to this appeal) approached. Baltazar (a member of the Brats gang) pointed a shotgun at the victims while Gabaldon (a Los Nietos gang member) asked the victims where they were from and whether they knew they were in Los Nietos territory. Baltazar and Gabaldon took jewelry, money, and other items from the victims, then left.[2]

At trial, the People presented evidence of the facts summarized above, plus the testimony of a gang expert (Deputy Sheriff Ruben Nava). Deputy Nava testified that Los Nietos is a Whittier area gang with at least 140 members. He explained the gangs identifying sign and symbol, and said that its primary activities are murder, drive-by shootings, carjackings, auto thefts, robberies, rapes, arson, burglaries, witness intimidation, and terrorist threats. He identified Gabaldon as an admitted Los Nietos member and Baltazar as a member of the Brats, a Bell Gardens gang. He testified without objection that the crimes were committed with the intent to benefit the Los Nietos gang and that the crimes did, in fact, benefit the Los Nietos gang.

Without objection, Deputy Nava explained the reasons for his conclusions -- that the robberies were committed in the area controlled by Los Nietos, that Gabaldon called out the gangs name during the robberies (to instill fear in the victims), that the fruits of the robbery could be sold for cash to be used for weapons and other gang needs (such as paying taxes to the Mexican Mafia), and that (based on the location of the robberies) the victims could have been mistaken for rival gang members. Deputy Nava also explained that, because there was no rivalry between the Brats and Los Nietos (and because they both fall under the larger umbrella of the Mexican Mafia), there was nothing wrong with Baltazar committing robberies for the benefit of Los Nietos -- as shown by both Baltazars failure to speak up when Gabaldon mentioned Los Nietos, a quiet acceptance of his willingness to act as a soldier for Los Nietos, and his willingness to use the shotgun to take care of business.

Baltazar was convicted as noted at the outset.

DISCUSSION

I.

According to Baltazar, no reasonable trier of fact could have found based on substantial evidence that these robberies were committed for the benefit of, at the direction of, or in association with a criminal street gang, or that he had a specific intent to promote, further or assist in any criminal conduct by gang members when this incident occurred. We disagree.

As relevant, subdivision (a) of section 186.22 imposes additional penalties on any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . . Subdivision (e) of section 186.22 defines pattern of criminal gang activity to mean the commission or attempted commission of two or more of a list of specified felonies (including murder, robbery, assault, arson, rape, and the other crimes identified by the expert). Subdivision (f) defines a criminal street gang as any group having as one of its primary activities the commission of a list of specified felonies. As our summary of the evidence presented at trial shows, substantial evidence supports all of the elements of section 186.22.

Baltazar concedes the jury could rely on expert testimony about gang culture (People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931; People v. Gardeley (1996) 14 Cal.4th 605, 618-620), but contends the gang evidence about his intent cannot support the judgment (People v. Killebrew (2002) 103 Cal.App.4th 644, 657-658; In re Frank S. (2006) 141 Cal.App.4th 1192, 1197). The cases cited by Baltazar forbid the use of factually unsupported expert opinion to establish subjective intent, a rule which plainly has no application here -- because (leaving to one side Baltazars failure to object to the experts testimony), Deputy Nava explained both the reasons for his opinions and the facts on which he relied, and testified not only that Baltazar intended to benefit Los Nietos, but that gang culture did not prohibit the member of one gang from acting for the benefit of another gang. (People v. Killebrew, supra, 103 Cal.App.4th at pp. 657-658.) It follows that the gang enhancement is supported by substantial evidence. (People v. Gurule (2002) 28 Cal.4th 557, 630.)

II.

We reject Baltazars contention that the trial court abused its discretion when it denied his motion to strike one of his two prior strikes (one was for carjacking, the other robbery). (People v. Superior Court (Romero) (1996) 13 Cal.4th 497; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968; People v. Williams (1998) 17 Cal.4th 148.) The trial courts statements at the time it denied the motion show a reasoned decision, not an abuse of discretion:

The problem is [Baltazar was] convicted of two very serious offenses, carjacking and robbery, and . . . was on probation as recently as September [2002]. I dont know if he was still on probation at the time of [the current crimes], but thats the difficulty. The law requires that I find that he is outside of the scheme of the three strikes law, and I dont think he is. He suffered the priors fairly recently. [He] continued to violate [the law] in a similar fashion. So the court does not find that hes outside the scheme of the three strikes law. We agree with the trial court that Baltazar is not outside the intent of the three strikes law.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

VOGEL, Acting P.J.

We concur:

ROTHSCHILD, J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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[1] All section references are to the Penal Code.

[2] Baltazar does not challenge the evidence supporting the robbery convictions.