P. v. Espinoza

Filed 6/21/07 P. v. Espinoza CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Ruffo Espinosa, Jr., 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, Senior Assistant Attorney General, Lance E. Winters and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________________

A jury convicted defendant Victor Espinoza of carjacking in violation of Penal Code section 215, subdivision (a),^[1]the second degree robbery of Rafael Rodriguez in violation of section 211, and street terrorism in violation of section 186.22, subdivision (a). As to the carjacking and robbery, the jury found defendant personally used a handgun as defined by section 12022.53, subdivision (b), and committed both offenses with the intent of benefiting a criminal street gang as defined in section 186.22, subdivision (b)(4). The trial court sentenced defendant to 25 years to life on the carjacking count, consisting of an indeterminate term of 15 years to life, based on the criminal street gang finding ( 186.22, subd. (b)(4)(B)), plus a 10 year determinate term for the firearm use finding. The trial court imposed an identical sentence for the robbery count, but stayed the sentence pursuant to section 654. For the substantive street terrorism conviction, the trial court imposed a concurrent two-year middle term sentence.

In his timely appeal, defendant contends there was constitutionally insufficient evidence to support the gang enhancement and imposition of a separate sentence for the street terrorism conviction was proscribed by section 654s bar against multiple punishments.We reject those contentions and affirm.

STATEMENT OF FACTS

Prosecution Evidence

In the late morning of June 5, 2005, Rafael Rodriguez was standing outside his black 2004 GMC Yukon truck, which was parked on the 2400 block of Fourth Street in Los Angeles. Rodriguez had customized the Yukon with special wheels and rims and by installing a custom video and sound system that included three video monitors. Rodriguez was standing outside the open passenger side door, looking for his cell phone. His father was outside the trucks driver side, helping him look for the phone. Defendant approached, pointed a semi-automatic handgun at Rodriguezs upper body, and ordered him to move away from the truck. Rodriguez, who had just found the phone, asked to retrieve it first. Defendant told him to get the phone and get out. When Rodriguez complied, defendant jumped into the truck and drove away. Defendant was wearing gloves and a baseball cap with a V insignia.

Rodriguez immediately called the 911 operator and reported the incident. The police arrived, took his report, and had the trucks theft-detection device alerted. A few hours later, at approximately 1:00 p.m., Officer Alonzo Ramirez of the Los Angeles Police Department and his partner Officer Oliande tracked the Yukon to a residence on the block of Live Oak Street in Los Angeles where Mayra Meza lived. She admitted being a member of the Vickys Town street gang. The Yukon was parked at the rear of the residence.

Rodriguez was brought to the location where the Yukon was discovered. He saw that his customized rims had been broken off and removed. The three video monitors had been taken out of the head rests and console where Rodriguez had installed them. The amplifiers and speakers had been taken as well. The 30 to 40 CDs he had stored in the truck were missing. Defendant was not present, but the officers conducted field showups with the three males who had been inside the residence. Rodriguez did not identify any of them as being the person who committed the robbery.

The police also showed Rodriguez a vehicle owned by Mezas mother that was parked at the Live Oak residence. Rodriguez verified that the video monitor in it had not been taken from his Yukon. However, some of Rodriguezs CDs were found inside the vehicle. Rodriguez was sure because most of them were CDs he or his brother-in-law had burned and labeled. Rodriguez also recognized a baseball cap that had been taken from his Yukon.

On June 8, Rodriguez viewed a photographic line-up or six-pack at the police station. Rodriguez identified defendants photograph as that of the carjacker. Rodriguez had a clear view of defendants face during the incident for approximately 30 seconds. Rodriguez also identified defendant in a live lineup approximately 10 days after the incident and in court during the trial. Rodriguezs father identified defendant from the photographic lineup ; however, when the father attended the live lineup, he purposely identified someone other than defendant because he was afraid. Nevertheless, Rodriguezs father identified defendant in court during trial as the person who threatened them with a gun and took the Yukon.

Detective Juan Contreras took part in the June 16, 2005 searches of Mezas Live Oak residence and defendants residence on 515 North Avenue 50. Inside the Live Oak residence, the officers recovered Rodriguezs baseball cap and some of his CDs, along with a gun holster, magazines, and rounds. Although defendants North Avenue 50 residence was not located within Vickys Town territory, it contained photographs of defendant and others making gang hand signals.

Officer William Eagleson testified as a gang expert. He was experienced with the criminal street gangs in the Hollenbeck area of Los Angeles, which includes the Vickys Town gang. Defendant was a well-known and admitted member of that gang. The 2400 block of Fourth Street where Rodriguezs Yukon was carjacked was not in Vickys Town territory, but in an adjoining grey area which was contested by Vickys Town and other gangs and where Vickys Town members committed crimes. There are approximately 75 to 100 members of the Vickys Town gang. Members of the gang use identifying hand signs, tattoos, and monikers. Defendants gang moniker is Joker and he has gang-identifying tattoos on his chest, arms, and leg. He recently committed an act of vandalism, painting Vickys Town gang graffiti on a wall. The gangs primary activities are committing homicides, attempted murders, drive-by shootings, carjackings, robberies, witness intimidation, felony vandalism, and narcotic violations. Gang members commit crimes to help fund the gangs other criminal ventures.

The residence on Live Oak Street, where the Yukon was recovered, is a Vickys Town annex or club house where active members can live, hide out, and party. The walls were covered with graffiti; there was a photograph of a person throwing gang signs. A known Vickys Town member, Mayra Trevisa Meza, resides there. Officer Eagleson testified to evidence of predicate felony convictions by other Vickys Town members.

Officer Eagleson opined that a carjacking such as the one described by Rodriguez and his father would have been committed for the benefit of the Vickys Town gang because it was committed by a known gang member, who took the stolen vehicle to a gang clubhouse, where it could be sold to fund gang activities. Such crimes were consistent with putting in work to profit the gang and enhance the gang members reputationit was like taking a trophy to the gang. Additionally, the fact that the person who committed the crime wore a cap with a distinctive V gang symbol tended to show that he was an active gang member. The fact that the crime was committed in a grey area rather than in Vickys Town territory was not inconsistent with a gang motivation. Additionally, active gang members can have legitimate day jobs. Such employment is often necessary because the proceeds from a gangs criminal activities go to the gang, with little left over for the individual members.

Defense Evidence

Raquel Soltero, defendants employment supervisor, testified that defendant was employed for approximately two months ending on June 16, 2005, when he was arrested. She opined that he was an excellent worker, who got along well with his work associates. He was regarded as reliable and honest. He generally worked from 6:00 a.m. to 2:30 or 4:30 p.m., weekdays and Saturdays. He did not work on Sundays.

Defendants sister, Claudia Espinoza, lived at the North Avenue 40 residence with defendant, their mother and two sisters, and her son Jerry. She knew defendant was a member of the Vickys Town gang. On Sunday June 5, 2005, Ms. Espinoza worked her regular shift at the City of Angels Medical Center, from 7:00 a.m. to 3:30 p.m. When she left home for work at approximately 6:40 a.m., defendant was sleeping, as he normally did, on the living room couch. Ms. Espinoza telephoned home between 11:00 and noon to check on her son and defendant. Her 15-year-old sister Jessica answered and told her that defendant was at home. When Ms. Espinoza returned that afternoon, defendant was not there. He returned home after dark.

Defendants sister Jessica awoke at 9:00 a.m. on June 5, and stayed in her bedroom. At approximately 11:00 a.m., she went into the living room to answer a telephone call from Ms. Espinoza. Jessica saw defendant sleeping on the couch. Jessica told her sister that both defendant and Jerry were sleeping.

Defendants mother awoke at approximately 8:00 a.m. on June 5 and went to the grocery store. Defendant was sleeping at the time. She returned approximately one hour later and began preparing a family lunch. Defendant was still sleeping. Defendant ate lunch with the family sometime between 11:00 a.m. and 2:00 p.m.

Defendant testified that he returned to his home between 2:00 and 3:00 a.m. on June 5, and went to sleep on the living room couch. At approximately noon, he had lunch with his family. He later visited a neighborhood friend and returned that night. He denied committing the carjacking involving Rodriguezs Yukon. Defendant admitted having visited Mezas residence on Live Oak on various occasions. In May 2005, defendant was arrested for vandalism with Meza and other Vickys Town members. They had been tagging walls with gang graffiti, and were arrested while driving home in a Chevrolet Suburban owned by Mezas mother (the same vehicle in which some of Rodriguezs CDs were found). Among the Vickys Town monikers they tagged was defendants own, Joker. Defendant also admitted having a number of gang-related tattoos, including a Vickys Town tattoo that was fresh in 2005. Defendant admitted taking a motor vehicle without the owners consent in 2001, and possessing a concealable weapon in 1998. Defendant, however, testified he ceased to be an active member of the Vickys Town gang in 2002, when he was 17 years old.

Psychologist Michael Eisen testified as an expert in eyewitness identification. Research concerning how the memory works tends to show the accuracy of a witnesss memory of an event depends on how closely the witness focused his or her attention on the event as it transpired. Accuracy will be compromised to the extent the witnesss attention was distracted at the time of perception. Stress and trauma are factors that tend to inhibit a witnesss ability to perceive an event accurately. In many cases, a crime victim will focus his or her attention on the assailants weapon. Scientific literature concerning photographic lineups shows that all the photographs in the lineup should match the witnesss description of the suspects main features. Studies show only a weak correlation between a witnesss confidence in his identification and the accuracy thereof.

DISCUSSION

Sufficiency of Evidence as to the Gang Enhancement

Defendant argues there was insufficient evidence to support the jurys findings that he committed the carjacking/robbery to promote a criminal street gang, pursuant to section 186.22, subdivision (b)(1). More specifically, defendant contends there was insufficient evidence to prove the primary activities of the Vickys Street gang included the commission of the statutorily enumerated offenses, and there was insufficient evidence that defendant specifically intended his crimes to benefit the gang. We disagree.

In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1181.) The substantial evidence standard of review applies to section 186.22 gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)

The gang enhancement of section 186.22, subdivision (b) required the prosecution to prove defendant committed the carjacking and robbery for the benefit of a criminal street gang. Section 186.22, subdivision (f) defines a criminal street gang for purposes of these provisions as any ongoing organization, association, or group of three or more persons . . . having as one of its primary activities the commission of one or more [enumerated offenses], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. [Citation.] (People v. Sengpadychith (2001) 26 Cal.4th 316, 323, italics omitted.) The phrase primary activities, as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the groups chief or principal occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the groups members. . . . [] Sufficient proof of the gangs primary activities might consist of evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute. (Id. at pp. 323-324.) Also sufficient might be expert testimony that the gang was primarily engaged in certain offenses. (Ibid.)

Here, the evidence supporting both the primary activities element and defendants gang-related motivation was strong. Officer Eagleson, testifying as a gang expert, had longtime expertise and experience concerning the various street gangs in the Hollenbeck area, including the Vickys Town gang. His familiarity with the gang began in the early 1980s, before its territory shifted to its current location. At the time of the underlying offenses, it had between 75 and 100 active members, including defendant. Its members committed crimes in the grey area where the carjacking/robbery occurred. Members used identifying hand signs, tattoos, and monikers. According to Officer Eagleson, the primary activities of the Vickys Town gang were committing homicides, attempted murders, drive-by shootings, carjackings, robberies, witness intimidation, felony vandalism, and a variety of narcotic violations. The officer based his knowledge of those activities on criminal investigations he conducted. Additionally, Officer Eagleson offered details of two independent gang-related feloniesfelony vandalism and assault with a deadly weaponcommitted by other Vickys Town members. Contrary to defendants assertion, viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could infer that the commission of specific statutorily-enumerated offenses was a primary activity of Vickys Town. (See People v. Vy (2004) 122 Cal.App.4th 1209, 1223-1226; People v. Augborne, supra, 104 Cal.App.4th at pp. 371-373.)

Nor is defendant correct in arguing the absence of substantial evidence of a gang-benefiting motivation for the carjacking/robbery. The prosecution presented evidence that defendanta longtime, active Vickys Town member who had recently added a new gang tattoo to his bodycommitted the crimes while wearing a cap with a gang insignia. Immediately after the carjacking/robbery, the stolen Yukon was delivered to the residence of another Vickys Town member, Mayra Meza. That residence included a gang club room. Within hours of the carjacking/robbery, the Yukon had been partially stripped. Not only was property stolen from the Yukon found in the Meza residence, but also in a vehicle parked therethe same vehicle that was owned by Mezas mother and had been used by Meza, defendant, and other gang members to tag neighborhood walls with Vickys Town graffiti. Indeed, defendant corroborated many of those facts in his own testimony, including the tagging incident with Meza and his new Vickys Town tattoo. Defendant also admitted taking a motor vehicle without the owners consent in 2001, and possessing a concealable weapon in 1998both during the time when he admitted to being an active member of the Vickys Town gang. Additionally, Officer Eagleson testified that gang members were required to commit robberies and other crimes to fund gang activities. He also explained why the crimes commission in a grey area, rather than in Vickys Town territory, was consistent with a gang motivation, and why active gang members often have legitimate day jobs.

We find this evidence, viewed in the light most favorable to the prosecution, amounted to credible and solid evidence, supporting the reasonable inference that defendant committed the carjacking/robbery in association with, or for the benefit of, the Vickys Town gang. Contrary to defendants assertion, this was not a case such as In re Frank S. (2006) 141 Cal.App.4th 1192, in which the prosecution expert exceeded the proper bounds of gang testimony by opining as to a defendants subjective knowledge and intent. In that case, the gang expert improperly opined as to the minors intent regarding knife possession without any supporting evidence of gang motive. (Id. at p. 1199.) In contrast, Officer Eagleson explained how Vickys Town members were expected to put[] in work for the gang, and how the stealing and stripping of a vehicle like Rodriguezs Yukon would be consistent with such typical behavior. The independently established facts that defendant was an active member of the gang, wore gang identification while committing the crimes, and had recently committed a gang-related crime with the same gang member who resided at the gang location where the Yukon was left, provided ample corroboration for his opinion. (See People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931 [gang experts testimony properly admitted to explain how the gangs reputation was enhanced through drug sales and how the gang may use drug proceeds].)

Section 654s Bar Against Multiple Punishments

Appellant received a 25-year-to-life sentence for the carjacking, which included a criminal street gang enhancement under section 186.22, subdivision (b). He also received a two-year, concurrent term for street terrorism under section 186.22, subdivision (b). He contends section 654s bar against multiple punishments proscribes imposition of the latter term because both sentences were based on the same conductthe carjacking/robbery. As the established caselaw instructs, however, imposition of the two terms was proper because there was evidence that defendant had multiple, independent intents in committing the underlying offenses.

Section 654 prohibits multiple punishment if the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective. (In re Jose P. (2003) 106 Cal.App.4th 458, 469 (Jose P.).) If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] (People v. Harrison (1989) 48 Cal.3d 321, 335.) Whether a defendant entertained multiple criminal objectives presents a question of fact, reviewed under the substantial evidence standard. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466 (Herrera).)

The Herrera court held the defendants street terrorism conviction under section 186.22, subdivision (a) was divisible from his attempted murder convictions for purposes of section 654 because the gang participation charge required a separate intent and objective from the underlying felony committed on behalf of the gang. (Herrera, supra, 70 Cal.App.4th at p. 1468.) For the substantive gang participation offense under section 186.22, subdivision (a), the gravamen is the participation in the gang itself. (Herrera, supra, at p. 1467, fn. omitted.) Because the substantive offense requires the intent to participate actively in a criminal street gang, but not necessarily also the intent to personally commit a particular felony, [t]he perpetrator of the underlying crime may thus possess two independent, even if simultaneous, objectives[,] thereby precluding application of section 654. [Citation.] (Herrera, supra, 70 Cal.App.4th at p. 1468, fn. omitted.) As the Herrera court explained, a contrary interpretation of section 654s application would render section 186.22, subdivision (a) a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang. [T]he purpose of section 654 is to insure that a defendants punishment will be commensurate with his culpability. [Citation.] [Citation.] We do not believe the Legislature intended to exempt the most culpable parties from the punishment under the street terrorism statutes. (Ibid., fn. omitted.)

Defendants case is materially indistinguishable from Jose P., supra, 106 Cal.App.4th at page 458. There, the court included in the maximum period of juvenile confinement, nine years for the minors home invasion robbery, plus 10 years pursuant to the section 186.22, subdivision (b)(1)(C) gang enhancement, and eight months for the section 186.22, subdivision (a) gang offense. The minor argued the eight-month term on the gang crime should be stayed pursuant to section 654. (Jose P., supra, 106 Cal.App.4th at pp. 468, 470.) Applying Herrera, the court found the minors intent and objective in violating section 186.22, subdivision (a) was participation in the gang itself, while his intent in committing the robbery was to take property located in the victims home. Application of the enhancement does not alter the fact that he must also have had the intent to take the property. While he may have pursued the two objectives simultaneously, the objectives were nevertheless independent of each other. Therefore, section 654 does not bar punishment for both the gang crime and the robbery. (Jose P., supra, 106 Cal.App.4th at p. 471.)

In the same way, defendants intent and objective in violating section 186.22, subdivision (a) was participation in the gang itself, while his intent in committing the carjacking/robbery was not merely to benefit his gangit necessarily included the simultaneous intent to steal the Yukon and its contents. Therefore, the court properly determined that the gang offense need not be stayed pursuant to section 654.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P.J.

ARMSTRONG, J.

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^[1] All statutory references are to the Penal Code, unless indicated otherwise.