Filed 10/4/18 P. v. Harris CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge.

Patricia L. Brisbois, 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, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Xavier Tavares Harris stands convicted of robbery and unlawful possession of a firearm by a felon. Penal Code[1] section 186.22, subdivision (d) gang enhancements were found true as to both counts and a section 12022.53 firearm enhancement was found true as to the robbery count. Harris contends the evidence is insufficient to sustain the gang enhancement and the matter must be remanded for the trial court to exercise its discretion under section 12022.53, subdivision (h) to strike or dismiss the firearm enhancement. We affirm the gang enhancements and remand for the trial court to consider exercising its discretion under section 12022.53, subdivision (h).

FACTUAL AND PROCEDURAL SUMMARY

Harris does not challenge his convictions on the underlying offenses. His assertion that the matter be remanded to the trial court to consider exercising discretion under section 12022.53, subdivision (h), is conceded by the People. Harris’s challenge to the gang enhancement true findings is that the evidence is insufficient to show he “specifically intended to promote, further, or assist any criminal conduct by gang members in committing the charged offense.” He contends the evidence shows the robbery was to enrich himself, not the gang. The People disagree and contend the evidence is sufficient to sustain the gang enhancement true findings. We focus our recitation of facts on those relevant to the contested issue on appeal.

On July 29, 2014, an information was filed in Kern County charging Harris with robbery in violation of section 212.5, subdivision (c), and unlawful possession of a firearm by a felon in violation of section 29800, subdivision (a)(1). As to both counts, it was alleged that the crimes were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1), and that Harris had served a prior prison commitment within the meaning of section 667.5, subdivision (b). A section 12022.53, subdivision (b) enhancement was alleged as to the robbery count.

Testimony at trial established that around 9:45 a.m., on June 30, 2014, two African-American males entered a RadioShack store in Bakersfield. One of the males was Harris; he was carrying a chrome handgun. Harris demanded cash, “iPads and also iPhones.” Harris took about $180 from the register and then continued to demand iPads and iPhones. Harris pointed the gun at an employee and instructed him to load up a bag with iPhones. The employee placed prepaid phones and iPhones into the bag, including an LG Volt phone. Harris then reached in and took more phones.

Harris’s accomplice asked, “which way are they going to leave?” While Harris communicated with his accomplice, the employee noted Harris’s appearance. There were tattoos on Harris’s right arm; he was wearing Reebok Classics in black and white with worn shoe laces; and there was a teardrop tattoo on the left side of his face. Harris and his accomplice fled through the back door; the employee heard the back door alarm go off.

On July 1, 2014, around 1:50 a.m., Bakersfield Police Officer Eric Celedon stopped a vehicle for traffic violations. Four men and a woman exited the vehicle. Celedon found Harris hiding in the backseat of the vehicle; there was a $100 bill and a black cell phone where Harris had been hiding. Celedon noticed Harris’s shoes matched the description given of those worn by the gunman in the RadioShack robbery.

One of the men in the car, Eric Grayson, had a white LG Volt phone in his pocket. It was determined this was the phone taken from the RadioShack store in the June 30 robbery. Grayson claimed he had gotten the phone two weeks prior from an unknown third party. Grayson had no explanation for how he could have come into possession of this phone two weeks prior, when it was stolen the day before it was found in his possession.

The RadioShack employee was able to pick Harris out of a photographic lineup, and identified Harris at the preliminary hearing. The employee also identified Harris’s shoes as the ones the gunman had been wearing.

Officer James Dickson of the Bakersfield Police Department testified as the People’s gang expert. Harris is a member of East Side Crips and his monikers include “Fly” and “Baby No Sense.” Harris had several gang tattoos on his arms. The gang’s primary activities include illegal weapons possession, murder, witness intimidation, burglary, robbery, automobile thefts, and narcotic sales. Dickson identified three East Side Crips members who previously were convicted of crimes.

Within the gang culture, mentors frequently pass their nicknames down to younger members with “Baby” in front of it; it then would be passed down as “Lil” or “Tiny.” Harris’s brother, Patrick Harris, was an East Side Crip with the moniker “No Sense,” which was passed down to Harris as “Baby No Sense.” Harris had several identifiable gang tattoos on his arms, denoting his membership in East Side Crips.

Dickson testified Grayson also was a known member of the East Side Crips. Grayson’s moniker, “Tiny No Sense,” had been passed down to him by Harris. Grayson told Dickson he looked up to Harris within the gang. In a recorded jail phone call between Harris and Grayson, Harris tells Grayson to “hit the road up.” The road is a reference to Martin Luther King, Jr. Boulevard, a street in East Side Crips territory. Harris tells Grayson to “[t]ell that bitch to give you my shit, cuz” and to get “two of them” from her. Harris asked if Grayson was “good on that” and Grayson responded, “yip yip.”

The jury found Harris guilty of the robbery and possession of a firearm counts. It also found true the section 186.22, subdivision (b)(1) enhancements as to both counts and the section 12022.53, subdivision (b) firearm enhancement as to the robbery count. In a bifurcated proceeding, the trial court found that Harris had served a prior prison term within the meaning of section 667.5, subdivision (b). Harris pled to a section 186.22, subdivision (d), offense.

In another proceeding, Harris pled to the substantive gang offense pursuant to section 186.22, subdivision (b)(1). Sentencing on this offense was combined with the sentencing on the robbery and possession of a firearm offenses.

At the November 16, 2015 sentencing, the trial court imposed the midterm of three years for the robbery; a consecutive ten years for the section 186.22, subdivision (b)(1) gang enhancement appended to that count; and an additional ten years, consecutive, for the section 12022.53, subdivision (b) firearm enhancement. The trial court struck the punishment for the section 667.5, subdivision (b) enhancement. On the possession of a firearm count, the trial court stayed imposition of punishment pursuant to section 654. On the substantive gang offense, the trial court imposed the upper term of three years, to be served concurrently.

Harris filed a notice of appeal on December 2, 2015.

DISCUSSION

Harris does not challenge his convictions on the underlying offenses. He contends the evidence is insufficient to support the true finding on the gang enhancement because the evidence is insufficient to establish that even if the crime benefitted the gang, he “specifically intended to promote, further, or assist any criminal conduct by gang members in committing the charged offense.” He contends the evidence shows the robbery was to enrich himself, not the gang.

Harris also contends the matter must be remanded to the trial court to consider exercising discretion under section 12022.53, subdivision (h), to strike or dismiss the firearm enhancement.

1. Gang Enhancement

Harris here does not challenge that he belonged to a gang, illegally possessed a gun, and committed the robbery of the RadioShack store. His challenge is to the second prong of the gang enhancement, the sufficiency of the evidence that he specifically intended to promote, further, or assist in any criminal conduct by gang members. Standard of Review

On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence “ ‘is 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.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055, cert. den. (2016) [136 S.Ct. 1714].) “The record must disclose substantial evidence to support the verdict—i.e., 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. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) “In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (Ibid.) “ ‘[I]t is the jury, not the appellate court which must be convinced of the defendant’s guilt .…’ ” (People v. Nguyen, supra, at pp. 1055-1056.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict.” (Zamudio, supra, at p. 357.)

The STEP Act

“In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (the STEP Act). (§ 186.20 et seq.)” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) “ ‘Underlying the STEP Act was the Legislature’s recognition that “California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.” ([ ] § 186.21.) The [STEP] [A]ct’s express purpose was “to seek the eradication of criminal activity by street gangs.” [Citation.]’ [Citation.] In pursuit of this goal, the STEP Act focuses upon ‘patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs.’ (§ 186.21.)” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1129, fn. omitted (Rodriguez).)

In addressing the problem, the STEP Act creates both a substantive offense for active participation in a criminal street gang and a sentence enhancement for committing gang related crimes. (Rodriguez, supra, 55 Cal.4th at p. 1130.) In this case, Harris challenges the jury’s true findings on the gang enhancement.

Analysis

Harris challenges the sufficiency of the evidence he committed the offenses “for the benefit of, at the direction of, or in association with [a] criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members .… ” (§ 186.22, subd. (b)(1).) Specifically, the gang enhancement in section 186.22, subdivision (b)(1) requires proof of two elements: (1) that the defendant committed a felony for the benefit of, at the direction of, or in association with a criminal street gang; and (2) that in connection with the felony, the defendant harbored the specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) The statute’s “disjunctively worded” subparts in each element provide three separate and alternative means to satisfy each element. (People v. Leon (2008) 161 Cal.App.4th 149, 162.) These requirements have been called the “gang-related” and “specific intent” prongs. (People v. Rios (2013) 222 Cal.App.4th 542, 564.)

Specific intent to benefit the gang is not required; only specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Morales, supra, 112 Cal.App.4th at p. 1198.) Evidence that gang members came together to commit a crime may constitute substantial evidence that a crime was committed in association with the gang. (People v. Albillar (2010) 51 Cal.4th 47, 62 (Albillar).) As well, “ ‘[e]xpert opinion that particular criminal conduct benefited a gang’ is not only permissible but can be sufficient to support” the enhancement. (People v. Vang (2011) 52 Cal.4th 1038, 1048 (Vang), quoting Albillar, supra, at p. 63.)

The prosecution may rely upon expert testimony to establish the elements of the gang enhancement. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) Expert testimony also is admissible concerning the defendant’s motivation for a crime; whether a crime was committed to benefit or promote a gang. (People v. Killebrew (2003) 103 Cal.App.4th 644, 657.) Specific intent is rarely established by direct proof and usually “must be inferred from the facts and circumstances surrounding the offense.” (People v. Pre (2004) 117 Cal.App.4th 413, 420.) Expert opinion testimony “can be sufficient to raise the inference” that the criminal conduct was committed with the requisite specific intent. (Albillar, supra, 51 Cal.4th at p. 63; People v. Rios, supra, 222 Cal.App.4th at p. 573.)

We are to presume the existence of any fact the jury could have reasonably deduced from the evidence in support of the judgment. (People v. Clark (2011) 52 Cal.4th 856, 943.) Viewing the evidence in the light most favorable to the judgment, substantial evidence supports the jury’s finding that Harris committed the robbery and firearm offenses for the benefit of the East Side Crips and acted with the requisite specific intent.

Although Harris has not directly challenged the sufficiency of the evidence to support the first prong of the enhancement, we briefly address it as it relates to his challenge to the second prong. The expert opined that with property crimes, such as a robbery of a store, gang members are not necessarily going to mention their gang membership or throw gang signs because to do so “would automatically point officers” toward the gang. The lack of gang related indicia is not dispositive on whether the crime has been committed for the benefit of, at the direction of, or in association with a criminal street gang. (Albillar, supra, 51 Cal.4th at p. 67.)

In addition, the expert opined that with the East Side Crips, when a property crime is committed, the money or goods are distributed to other members of the gang. Oftentimes, electronic devices are divided among gang members. In response to a hypothetical set of facts similar to Harris’s crimes, the expert stated that by taking cash and valuable electronics, the gang would immediately benefit monetarily. If property taken during a robbery is actually distributed to another gang member, that demonstrates the robbery itself was committed for the benefit of or in association with the criminal street gang because another member receives items of value from the robbery, even if not a participant in the crime.

Harris gave items taken in the robbery to at least one other gang member, Grayson. Grayson was an admitted member of the East Side Crips, although he denied gang membership at trial. Grayson looked up to Harris within the gang. Grayson was found in possession of one of the stolen phones taken by Harris from RadioShack.

In a recorded jail phone call between Harris and Grayson, Harris tells Grayson to “hit the road up.” The “road” is a reference to a street in East Side Crips territory. Harris tells Grayson to “[t]ell that bitch to give you my shit, cuz” and to get “two of them” from her. Harris asked if Grayson was “good on that” and Grayson responded, “yip yip.”

Other than the phones found with Harris and Grayson, the items taken from the robbery were not recovered. Thus, the evidence shows that Harris disseminated at least one item taken in the robbery to a fellow East Side Crips member, Grayson. The jury could infer from the jail phone call that other items were disseminated to other gang members. The expert’s opinion that in a robbery for the benefit of the East Side Crips the stolen goods would be disseminated to other gang members was borne out by Harris’s actions. The first prong of the section 186.22, subdivision (b)(1) gang enhancement is satisfied by the commission of the robbery, a felony, for the benefit of the East Side Crips. (Vang, supra, 52 Cal.4th at p. 1048, quoting Albillar, supra, at p. 63.)

Substantial evidence other than the expert testimony supports the finding the crimes were committed with the requisite specific intent, the second prong of the enhancement. Harris’s gang tattoos were visible during the robbery. Even though the second robber was not identified, the jury could infer from the coordinated manner in which Harris and his accomplice entered the store, armed with a firearm to back up Harris’s demands, that they relied upon mutual gang ties to support each other in committing the offense and also relied on gang norms of violence to facilitate their escape. (Albillar, supra, 51 Cal.4th at p. 62 [“their common gang membership ensured that they could rely on each other’s cooperation in committing” the underlying crime and “that none of them would cooperate with the police”].) Section 186.22, subdivision (b)(1) “encompasses the specific intent to promote, further, or assist in any criminal conduct by gang members—including the current offenses—and not merely other criminal conduct by gang members.” (Albillar, supra, at p. 65.) Thus, the commission of the robbery itself with the firearm satisfies the second prong of promoting any criminal conduct by gang members. (Ibid.)

The specific intent prong of section 186.22, subdivision (b)(1) “requires only the specific intent to promote, further, or assist criminal conduct by gang members.” (Albillar, supra, 51 Cal.4th at p. 67.) Here, Harris also promoted or furthered criminal conduct by other gang members by giving them items from the robbery; at a minimum, Harris promoted, furthered, or assisted other gang members in engaging in the criminal conduct of receipt and/or sales of stolen property.

As for firearms, the expert opined that firearms are “communal tool[s]” disseminated within the gang to be used to commit crimes and are usually given to another gang member after the crime to hide, in order to elude police. The use of a firearm during the commission of a crime, like robbery, would elevate the gang member’s status within the gang by demonstrating that he is willing to engage in violence on behalf of the gang. The use of a firearm by a felon who was a gang member would be for the benefit of the East Side Crips. Here, the firearm actually was used by Harris during the robbery to instill fear and facilitate the taking; the store employee testified to its use and the fear it engendered in him. Weapons possession was one of the primary activities of the East Side Crips. The expert’s opinion testimony “can be sufficient to raise the inference” that the criminal conduct was committed with the requisite specific intent. (Albillar, supra, 51 Cal.4th at p. 63; People v. Rios, supra, 222 Cal.App.4th at p. 573.)

Harris contends People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa), People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), and People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran) support his claim regarding insufficient evidence to establish a specific intent to promote, further, or assist in criminal conduct by gang members. We disagree.

In Ramon, this court vacated a gang enhancement due to insufficient evidence. (Ramon, supra, 175 Cal.App.4th at p. 846.) The defendant, a gang member, was stopped by a sheriff’s deputy while driving a stolen vehicle and with an unregistered firearm in his possession. The stop occurred “in the heart” of the defendant’s gang territory. The prosecution’s gang expert opined at trial that driving a stolen vehicle and possessing an unregistered firearm provided a benefit to the defendant’s gang because both could be used to conduct numerous crimes. The unregistered firearm and stolen vehicle could also be used to spread fear and intimidation. (Id. at pp. 847-848.) The expert had not, however, identified possession of stolen vehicles as one of the activities of the gang. (Id. at p. 853.) The defendant’s presence with another gang member in gang territory was not adequate by itself to establish the defendant’s specific intent to promote, further, or assist criminal conduct by gang members. (Ibid.) Unlike the facts in Ramon, in Harris’s case, the expert testified that robbery was one of the primary activities of the East Side Crips.

In Ochoa, the defendant, acting alone, carjacked an individual. The defendant did not display any gang signs and there was no evidence the defendant used the vehicle in a way that benefitted other gang members, for example by transporting them. (Ochoa, supra, 179 Cal.App.4th at pp. 653, 656.) The appellate court concluded that a gang enhancement cannot be sustained based solely on the defendant’s membership in a gang at the time of commission of the crime. (Id. at p. 663.) Harris, on the other hand, acted in concert with another individual in committing the robbery and shared the proceeds of the robbery with other gang members.

Finally, Albarran is readily distinguishable. The defendant was tried on the substantive offenses of attempted murder, shooting at an inhabited dwelling, and attempted kidnapping for carjacking; gang evidence was introduced at the trial on the substantive offenses. The appellate court found the admission of certain gang evidence to be extremely prejudicial and a violation of due process. (Albarran, supra, 149 Cal.App.4th at pp. 227, 232.)

In conclusion, Dickson’s expert testimony, combined with the evidence that Harris committed the robbery in concert with another whom the jury could infer was a gang member; Grayson, an East Side Crip, received property stolen in the robbery; the jail phone call; the circumstantial evidence that other items taken in the robbery and the firearm used in the robbery were never recovered; is evidence from which the jury could infer the offenses were gang related and committed with the specific intent to promote, further, or assist gang members.

II. Senate Bill No. 620

In supplemental briefing filed on January 5, 2018, Harris contends the provisions of Senate Bill No. 620 (SB 620) should apply to him and requests the matter be remanded for the trial court to exercise its discretion to strike or dismiss the section 12022.53 firearm enhancement. In a supplemental respondent’s brief filed on January 30, 2018, the Attorney General concedes SB 620 applies to Harris and that the matter should be remanded.

At the time Harris was charged, convicted, and sentenced, subdivision (h) of section 12022.53 provided: “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” (Stats. 2010, ch. 711, § 5.) Thus, the trial court here was required to, and did, enhance Harris’s sentence by 10 years for the section 12022.53, subdivision (b) enhancement.

After Harris was sentenced, but before his judgment was final, the Legislature enacted SB 620. On October 11, 2017, the Governor signed SB 620, effective January 1, 2018. (Stats. 2017, ch. 682, § 1.) As relevant to this case, SB 620 amends section 12022.53 to give discretion to the trial court to strike a firearm enhancement in the interest of justice. Section 12022.53 was amended by SB 620 to add the following language:

“(h) The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (Stats. 2017, ch. 682, § 2.)

Harris’s judgment is not yet final and Harris and the People both contend SB 620’s amendment to section 12022.53 applies retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 746; People v. Francis (1969) 71 Cal.2d 66, 75-76; People v. Brown (2012) 54 Cal.4th 314, 323.) At least three published appellate decisions have held SB 620 applies retroactively in cases where the judgment is not yet final. (See People v. Billingsley (2018) 22 Cal.App.5th 1076, 1080; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.) For purposes of this appeal, we accept that SB 620 applies to Harris’s case.

At sentencing, the trial court stated, “this is a very serious case where someone enters a business with gun as found by the jury where people could have been hurt or killed in broad daylight … so this is a very serious case .…” Harris, however, contends that the matter should be remanded for the trial court to exercise its discretion under section 12022.53, subdivision (h) to strike the section 12022.53, subdivision (b) enhancement. The People concede the matter should be remanded for an exercise of the trial court’s discretion.

Therefore, we will remand the matter for the trial court to exercise its discretion. We express no opinion on whether the trial court should exercise its discretion to modify the sentence previously imposed.

DISPOSITION

The judgment is affirmed. The matter is remanded to the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2), and, if appropriate following exercise of that discretion, to resentence defendant accordingly.