P. v. Guajaca

Filed 8/9/07 P. v. Guajaca 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Arthur Jean, Judge. Modified and affirmed.

Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dana R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, John R. Gorey and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

PROCEDURAL BACKGROUND

An information charged appellant Robert Guajaca with the premeditated murder of Shigeru Nagao in violation of Penal Code section 187, subdivision (a) (count one), and the attempted murder of Enoka Fuailetolo in violation of section 187, subdivision (a) and section 664 (count two).^[1] The attempted murder of Fuailetolo was alleged to have been committed willfully, deliberately and with premeditation. The information further alleged that appellant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b) through (d), and that both the charged offenses were committed 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)(A).^[2]

The jury found appellant guilty as charged and found the special allegations true. The court sentenced appellant to a term of 25 years to life plus 25 years to life on the firearm enhancement on count one, and a life sentence plus an additional 25 years to life on the firearm enhancement on count two, all to be served consecutively.^[3]

STATEMENT OF FACTS^[4]

The shootings occurred in the early morning hours of August 8, 2004, at Nagaos house on Adriatic Avenue in Long Beach, where he lived with his brother Masaru Nagao.^[5] The house is in the claimed territory of the West Side Longo criminal street gang.

Prior to the shootings, Fuailetolo, also known as Snow, was renting a room in a house on Gale Avenue in Long Beach, also within West Side Longo territory. Fuailetolo belonged to a gang known as Sons of Samoa and had SOS tattooed on his arm signifying his membership.^[6] He had been selling drugs from his residence for two or three months. Fuailetolo believed he had permission from a senior West Side Longo gang member to sell drugs from that location. One-and-a-half months prior to the shooting, however, a member of West Side Longo known as Capone told Fuailetolo to stop selling drugs in the area.

On Saturday, August 7, Fuailetolo stopped by Nagaos house to see Nagao. Appellant and a female friend of Nagaos called Poison were there.

Later that day, Herman Maliga, Fuailetolos cousin, was visiting Fuailetolo at the house on Gale Avenue. Appellant, also known as Smiley, was there. Appellant displayed a 9-millimeter gun with T-9 written on it. Appellant said he was planning a lick and needed oil for the gun.

At about midnight, Maliga went to Nagaos residence, hoping to see Nagao. Poison opened the door and told Maliga that Nagao was not there. She seemed nervous. Appellant was in Nagaos bedroom. He seemed angry to see Maliga and left the room to talk to Poison. Maliga overheard appellant shouting and heard Poison say No, no, not him. Not here. Hearing these words and observing appellants behavior made Maliga uncomfortable, and he decided to leave. Just as he was leaving the house, he ran into Nagao, returning home. Maliga told Nagao that appellant was there and to watch out for him.

Just after midnight, an unidentified person shot at Fuailetolo while he was sitting in his garage with a friend. The shooter looked like Capone, but Fuailetolo was unable to positively identify him. Fuailetolo suspected Capone because of Capones earlier admonition and because approximately four days earlier, Capone pulled a gun on Fuailetolo and threatened to shoot him. After the shooting, Fuailetolo went to a friends house and then decided to go see Nagao.

Fuailetolo arrived at Nagaos house at around 3:00 a.m. Nagao, Masaru, and Poison were there. Fuailetolo went into Nagaos room to talk to Nagao. After a brief conversation, Fuailetolo fell asleep sitting up in a chair. The next thing he remembered was waking up and realizing he had been shot. He did not see the shooter. He managed to walk out of the bedroom. He heard Masaru say that Nagao had been shot and then passed out on the floor.^[7]

Masaru, who was sleeping in another bedroom, was awakened by gunshots. He got out of bed to investigate and saw appellant standing by the front door holding a gun. Poison was standing next to him. Fuailetolo was lying on the floor covered in blood. Masaru went to his brothers room, but unable to determine whether his brother was dead or alive, he left the house to get help. When he returned, appellant and Poison were gone.

Police recovered numerous slugs and shell casings from Nagaos house and from his body.^[8] The slugs and casings appeared to be from a 9-millimeter gun. All the casings were ejected from the same gun; all the slugs were fired from the same gun. Four casings and two bullet fragments were recovered at or near Fuailetolos residence. They all came from a .45 caliber semiautomatic pistol.

Officer Abel Morales testified as a gang expert. He had been assigned to gang enforcement for over 11 years. His knowledge about gangs came from training at the academy, sharing information with other officers, and interviewing gang members. He was familiar with the West Side Longo gang. At the time of trial in 2006, there were 50 or more active members. In 2004, there had been more than 100. The gang had a common hand sign and common symbols. The members used the acronym WSL. Members wore clothing in the Raiders colors or containing the Raiders emblem. The primary activities of the West Side Longo gang are murders, drive-by shootings, home invasions, drug sales, drug dealings, drug rip-offs, and gun sales. The prosecutor showed Officer Morales certified copies of dockets from criminal cases involving Oscar Vasquez and Ruben Anthony Emery. Vasquez was convicted of assault with a firearm in February 2004. Emery was convicted of murder and attempted robbery in October 2004. Officer Morales identified both men as members of West Side Longo.

Officer Morales observed that appellant had the word Longo tattooed on his neck in block letters. Generally, only actual gang members have the name of a gang tattooed prominently on their bodies, because a non-member who sports a gang tattoo risks being attacked. Tattoos are used to intimidate members of the public. A gang thrives in a community by committing crimes and intimidating residents of the community.

Officer Morales further testified that a non-member who sells drugs in a gangs territory is undertaking a dangerous risk. Drug dealing represents a major source of income for all gangs. Allowing a rival gang member to operate in ones territory is a sign of weakness and interferes with the gangs drug operation. Even if one gang member gives permission, another might not want the non-member there. Ignoring a warning to leave generally leads to something happening to the non-member. He or she will end up being evict[ed] . . . by force. If one gang member tries to eliminate a rival and fails, it becomes incumbent on the rest of the gang to eliminate the perceived threat.

DISCUSSION

I

STEP Act

Section 186.22, subdivision (b)(1) provides in pertinent part: [A]ny 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished . . . by an additional term.^[9]

Section 186.22 is a part of the California Street Terrorism Enforcement and Prevention Act of 1988, also known as the STEP Act. [Citations.] The statute was a legislative response to the increasing violence of street gang members throughout the state. (People v. Ngoun (2001) 88 Cal.App.4th 432, 435.) [T]o subject a defendant to the penal consequences of [section 186.22, subdivision (b)(1) of] the STEP Act, the prosecution must prove that the crime for which the defendant was convicted had been 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. ( 186.22, subd. (b)(1) and former subd. (c).) In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute;[^[10]] and (3) includes members who either individually or collectively have engaged in a pattern of criminal gang activity by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called predicate offenses) during the statutorily defined period. ( 186.22, subds. (e) and (f).) (People v. Gardeley (1996) 14 Cal.4th 605, 616-617, italics omitted.)

Appellant contends there was insufficient evidence presented at trial to demonstrate (1) that one of the primary activities of the West Side Longo gang was the commission of the enumerated crimes and (2) that the murder of Nagao was 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. We address these contentions in turn.

A

Primary Activities

As explained in People v. Sengpadychith (2001) 26 Cal.4th 316, [t]he phrase primary activities . . . 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. (Id.at p. 323, quoting Websters Internat. Dict. (2d ed. 1942) p. 1963.)

According to the Supreme Court, sufficient proof of a gangs primary activities may consist of either (1) evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute or (2) expert testimony, as occurred in [People v.] Gardeley, supra, 14 Cal.4th 605, where a police gang expert testified that the gang . . . was primarily engaged in the sale of narcotics and witness intimidation and based his opinion on conversations he had with [the defendant] and fellow gang members, and on his personal investigations of hundreds of crimes committed by gang members, together with information from colleagues in his own police department and other law enforcement agencies. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324, quoting People v. Gardeley, supra, at p. 620.)

The defendant in Sengpadychith argued that in proving the gangs primary activities, the prosecution should not be permitted to rely on the charged offense or offenses; the Supreme Court disagreed: Nothing in [the] statutory language prohibits the trier of fact from considering the circumstances of the present or charged offense in deciding whether the group has as one of its primary activities the commission of one or more of the statutorily listed crimes. Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the groups primary activities. Both past and present offenses have some tendency in reason to show the groups primary activity [citation] and therefore fall within the general rule of admissibility [citation]. (26 Cal.4th at p. 323.)

Appellant recognizes that Officer Morales testified that the primary activities of the West Side Longo gang were murders, drive-by shootings, home invasions, drug sales, drug dealings, drug rip-offs, [and] gun sales. He contends, however, that this testimony was insufficient because the officer failed to explain the basis for his assertion and or state that the West Side Longo gang committed such crimes consistently and repeatedly. We disagree that Officer Morales failed to explain the basis for his assertion. Officer Morales testified that he learned about gangs and their activities from his training at the academy, from other officers, and from contact with gang members. Moreover, he specifically testified that the area around Fuailetolos residence on Gale Avenue was West Side Longo territory and that Fuailetolos operation invad[ed] their sales, clearly suggesting that West Side Longo was regularly engaged in drug sales in the area. Although he did not specifically testify to having discussions with or about West Side Longo gang members, viewed as a whole, his testimony supports the conclusion that he based his assertion on such discussions.

Further, by focusing on Officer Moraless testimony, appellant disregards the other evidence that helped substantiate West Side Longos primary activities. As the Supreme Court held in Sengpadychith, the charged shootings themselves could properly be used by the jury to support a finding that the gang consistently and repeatedly committed the crimes listed in the STEP Act. The prosecution also supplied documentary evidence of two prior offenses by West Side Longo gang members. Although the evidence was introduced primarily to support the predicate acts element, it could also be considered by the jury to establish West Side Longos consistent and repeated criminal conduct. In addition, appellant overlooks that Fuailetolo testified (1) that he had been threatened by Capone and (2) that someone resembling Capone had shot at him earlier that morning. Evidence that West Side Longo members committed these six specific crimes within a relatively short period of time, when combined with Officer Moraless more general testimony that West Side Longo committed enumerated acts and controlled drug trafficking in the Gale Avenue area, was sufficient to establish the primary activities element. (See People v. Vy (2004) 122 Cal.App.4th 1209, 1225 [evidence of the commission of three violent felonies, including the charged offense, by a small gang over a less than three-month period was sufficient to satisfy the primary activities element [of the STEP Act]]; People v. Duran (2002) 97 Cal.App.4th 1448, 1465-1466 [expert testimony that gang members were engaged in assaults, robberies and narcotic sales and controlled the narcotics trade in their area, combined with evidence proving the charged offense and the predicate acts, held sufficient to support jurys true finding on the section 186.22 gang enhancement].)

B

Committed for the Benefit of, at the Direction of, or

in Association With

Appellant concedes substantial evidence supports the jurys finding that the West Side Longo gang benefited from the attempted murder of Fuailetolo because it led to the closure of his drug shop and opened up new markets for the gangs own drug products. He contends, however, that the murder of Nagao provided no such benefit because he was not a gang member, he was not vending contraband drugs, and [h]is presence in an area over which the West Side Longo gang held sway did not disadvantage the gang in any way.

We disagree with appellants characterization of Nagaos shooting. As Officer Morales testified, a gang thrives by committing crimes that intimidate members of the community at large. Although Nagao may not have been appellants primary target, his death benefited the gang. First, it eliminated a potential witness to the shooting of Fuailetolo. Second, it provided a warning to anyone in the community who would associate with or give shelter to an identified West Side Longo target. Finally, shooting and killing innocent victims who happen to be in the wrong place at the wrong time benefits a gang by enhancing its reputation for violence. (See, e.g. People v. Martinez (2005) 132 Cal.App.4th 531, 533-534 [gang enhancement upheld where victim beaten by defendant and fellow gang members after being asked if he was member of rival gang]; People v. Gamez (1991) 235 Cal.App.3d 957, 963-964, 978 disapproved in part on other grounds in People v. Gardeley, supra, 14 Cal.4th 605 [substantial evidence established that defendant committed offense for benefit of gang or with specific intent to promote or assist gang, where defendant opened fire on a group of people, aiming for member of a rival gang, but injuring unaffiliated girl].) Accordingly, the evidence was sufficient to support the jurys finding that appellant killed Nagao in order to benefit West Side Longo.

II

Credits

Appellant contends the trial court erred in failing to award any presentence credit. Appellant maintains he was entitled to 600 days of custody credit. Respondent concedes this is correct. The judgment must therefore be modified to reflect these credits.

DISPOSITION

The judgment is modified to reflect custody credits of 600 days. In all other respects, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment to reflect this modification, and to forward it to the Department of Corrections.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

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^[1] Statutory references herein are to the Penal Code.

^[2] The information also alleged that appellant had suffered prior convictions, but as the prosecutor failed to provide certified copies of the records at trial, the court dismissed the allegation.

^[3] Due to the imposition of the life sentences, no additional sentence was imposed for the gang allegation.

^[4] As mandated by the traditional rule governing appellate review, we recite the evidence in the light most favorable to the judgment. [Citations.] (People v. Avanessian (1999) 76 Cal.App.4th 635, 637.)

^[5] To distinguish him from his brother, Masaru Nagao will be referred to herein by his first name.

^[6] There was no evidence that either of the Nagaos belonged to a gang.

^[7] Fuailetolo was shot five times. He remained in the hospital for three months after the shooting. He was wearing a colostomy bag as of the time of trial and still had a bullet in his shoulder.

^[8] According to a stipulation, an autopsy found that Nagao had been shot seven times and that he had ingested amphetamine.

^[9] Subdivision (b)(1)(A) under which appellant was charged, subjects the defendant to an additional term of two, three or four years. Subdivisions (b)(1)(B) and (C) provide, respectively, for additional terms of five years for certain serious felonies and ten years for certain violent felonies.

^[10] The enumerated acts include assault with a deadly weapon, unlawful homicide or manslaughter, sale of drugs, shooting at an inhabited dwelling, burglary, gun sales, and threats to commit crimes involving bodily injury.