P. v. Landa

Filed 10/2/06 P. v. Landa CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Affirmed.

David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Santos Landa of attempted murder (Pen. Code, §§ 664/187, subd. (a))[1], assault with a semiautomatic firearm (§ 245, subd. (b)), and active participation in a criminal street gang (§ 186.22, subd. (a) (hereafter section 186.22(a))). The jury found true the allegation Landa personally discharged a firearm causing great bodily injury during the attempted murder (§ 12022.53, subd. (d)).[2] The court sentenced Landa to prison for 40 years to life, consisting of 15 years to life for attempted murder and 25 years to life for the firearm enhancement.[3] The court initially awarded him 775 days of conduct credit, but subsequently amended the abstract of judgment to reflect 803 days of credit.[4] Landa contends insufficient evidence supports the jury’s finding that he knew of a pattern of criminal gang activity for purposes of the section 186.22(a) conviction. We disagree and affirm the judgment.

FACTS

On the night of October 11, 2003, Landa and his companions sat at a table at a wedding reception staring at (“dogging”) Raul O., a 14 year-old-old boy who stared back at them (Landa was around 23 years old at the time). Landa walked over to Raul O. and asked Raul O. whether (or why) he was “talking bad” about Landa’s gang, Pearl Street.[5] Nancy Bocanegra (Raul O.’s sister), Alejandro Ramirez (Bocanegra’s husband), and Teresa Collazo (a family friend) went over to Landa and Raul O. Landa seemed angry and “jittery.” Ramirez asked Landa if there was a problem and told him Raul O. was “just a kid” and to calm down. Landa’s “friends came up to him and tried to calm him down”; they referred to him as “Bugsy.” Landa said he would “settle this somewhere else,” and left the room. Ramirez and Bocanegra decided to leave, so Ramirez went into the parking lot to “bring the car to the front of the building.” In the parking lot, Landa “confronted” Ramirez, said “Pearle Street,” and shot Ramirez in the left arm.

Officer Joel Nigro, a gang expert with 11 years of law enforcement experience, opined that Pearl Street is a criminal street gang whose primary activities in 2003 were “assaults, assaults with deadly weapons, attempted murder, vandalism, [and] stealing vehicles.” In 2003 the gang had about 8 to 12 active members. In May of that year, Sal Vadiles, a Pearl Street member, pleaded guilty to assault with a deadly weapon and “admitted doing it with the specific intent to benefit the Pearl Street gang.” A photograph seized from Vadiles in 1998 showed “several Pearl Street members flashing Pearl Street hand signs,” including Landa and Vadiles.

Based on his review of Street Terrorism Enforcement and Prevention cards (STEP cards), Field Interview cards (FI cards), police reports, “[p]ersonal contacts with other officers,” and other evidence (including that Landa went by the moniker “Bugsy”), Nigro opined Landa was an active participant of Pearl Street at the time he shot Ramirez. Nigro testified that between 1997 and 2001 Landa had been given seven STEP cards.[6] STEP cards are used “not only to document gang participants, but to notify them” “that the gang that they’re participating in . . . is considered an active criminal street gang and . . . is involved in a pattern of criminal activity.” The cards also warn recipients that “if they continue to be involved with that gang, at some point they can receive sentencing enhancements for certain crimes.” The cards are filled out, explained to, and issued to suspected gang members during detentions, arrests, or “contacts on the streets.”

Nigro recounted some statements in police reports supporting his opinion Landa was an active gang participant: Landa was with seven Pearl Street participants in 1998 “disassembling stolen vehicles,” in that same year Landa was “with documented participants of Pearl Street, including Sal Vadiles,” in 2000 Landa was with a Pearl Street participant “in a stolen vehicle[, and was] the driver of that stolen vehicle, and . . . had black gloves on,” in 2002 Landa “was contacted in Pearl Street territory, and he had dropped a can of black spray paint,” and in 2003 Landa was with a documented Pearl Street participant. The court instructed the jury that the police reports and other documents relied on by Nigro in forming his opinion could not be considered for the truth of their contents.[7]

DISCUSSION

Landa contends his conviction for actively participating in a criminal street gang in violation of section 186.22(a) should be reversed, because there was insufficient evidence he “knew that the members of the gang engaged in a pattern of criminal gang activity.”

We review “the evidence in the light most favorable to the prosecution, [asking whether] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.) “It is the jury, not the appellate court, that must be convinced beyond a reasonable doubt.” (People v. Perez (1992) 2 Cal.4th 1117, 1126.)

Under section 186.22(a), a “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” is punished by imprisonment of up to three years. (Italics added.) Subdivision (e) of section 186.22 defines a “‘pattern of criminal gang activity’” as “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [certain enumerated] offenses, provided at least one of these offenses occurred after [September 26, 1988]^[[8]] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” This definition of a “‘pattern of criminal gang activity’” is also relevant to section 186.22, subdivision (f)’s definition of a “‘criminal street gang.’” Under subdivision (f), a criminal street gang is a group of at least three persons “having as one of its primary activities the commission of” at least one statutorily enumerated criminal act, “having a common name or . . . symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”

In the instant case, the prosecution introduced into evidence certified documents relating to the Vidales conviction, and relied on Vidales’s conviction and the charges against Landa as predicate offenses to prove a pattern of criminal gang activity as a necessary element of the section 186.22(a) offense. Landa contends there was no evidence he knew of Vidales’s conviction and therefore the People failed to prove he had the requisite knowledge under section 186.22(a). Thus, Landa implies the knowledge required under section 186.22(a) is knowledge of the predicate offenses relied on by the prosecution. The People assert the evidence was sufficient to show Landa knew of Vidales’s conviction. Alternatively, the People argue section 186.22(a) does not require knowledge of the predicate offenses relied on by the prosecution, but rather an awareness “that the gang’s primary activities involved one or more of the felonies enumerated under the statutory scheme.”

In interpreting section 186.22(a)’s knowledge requirement, “we turn to the words themselves, giving them their ‘usual and ordinary meanings’ and construing them in context [citation]. ‘”If there is no ambiguity in the language of the statute, ‘then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.’”’” (People v. Castenada (2000) 23 Cal.4th 743, 746-747.)

By its plain terms, section 186.22(a) applies only to a defendant who has knowledge that the members of his or her criminal street gang “engage in or have engaged in a pattern of criminal gang activity.” “A requirement of knowledge is not a requirement that the act be done with any specific intent. [Citations.] The word ‘knowing’ as used in a criminal statute imports only an awareness of the facts which bring the proscribed act within the terms of the statute. (Pen. Code, § 7, subd. 5.)” (People v. Calban (1976) 65 Cal.App.3d 578, 584.) Under section 186.22, subdivision (e), a “‘pattern of criminal gang activity’“ is established by two statutorily enumerated offenses occurring within a three-year period, so long as at least one offense occurred after 1988, “and the offenses were committed on separate occasions, or by two or more persons.” Thus, to violate section 186.22(a), a defendant must be aware that his or her gang members participated in at least two offenses meeting the statutory requirements within a three-year timeframe.[9]

To prove “‘a state of mind such as knowledge,’” “‘[r]eliance on circumstantial evidence is often inevitable . . . .’” (People v. Lewis (2001) 26 Cal.4th 334, 379.) “Knowledge, like intent, is rarely susceptible of direct proof and generally must be established by circumstantial evidence and the reasonable inferences to which it gives rise.” (People v. Buckley (1986) 183 Cal.App.3d 489, 494-495.) If a defendant “is silent or says he did not have such knowledge, it may be evidenced in other ways, e. g., by his conduct or by proof that the information was given him in writing and he read the document, or orally and he heard the statement made.” (Oil Workers Intl. Union v. Superior Court (1951)103 Cal.App.2d 512, 533-534.) A “wide range of proof is allowed” on “the question of the existence or nonexistence of such knowledge.” (Ibid.)

Here, Nigro testified Landa was given seven STEP cards between 1997 and 2001. The cards informed Landa he was participating in a group considered to be engaged in a pattern of criminal gang activity.

Landa argues that Nigro’s testimony about STEP cards “is not evidence that [Landa] received the cards, that the gang actually engaged in acts constituting a pattern of criminal gang activity, or that appellant knew of any such acts or pattern.” But Nigro testified that Landa “was given” the cards. Defense counsel did not object to or challenge the testimony that Landa in fact received the cards. Nigro also testified without objection that police officers, when issuing STEP cards, explain the documents to the recipients. Thus, Landa would have been told, orally and in writing, that Pearl Street engaged in a pattern of criminal gang activity. Landa argues that, even if the STEP cards “could be considered for the truth of what they state,” the cards “do not specify any particular predicate crime in which members of the gang have engaged but merely state the conclusion that the gang ‘is involved in a pattern of criminal activity.’” But knowledge of that conclusion is all the statute requires. The jury decides how much weight, if any, to accord evidence of a defendant’s receipt of a STEP card. The STEP cards given to Landa over a five-year period constituted sufficient evidence from which the jury could infer Landa’s knowledge that Pearl Street members engaged in a pattern of criminal street activity.

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

O’LEARY, J.

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

[2] The jury also found true the allegations Landa committed the attempted murder and assault for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), personally used a firearm in the commission of the assault (§ 12022.5, subd. (a)), and personally inflicted great bodily harm in the commission of attempted murder and assault (§ 12022.7, subd. (a)). The court found not true the allegation Landa suffered a prior conviction and served a prison term (§ 667.5, subd. (b)).

[3] The court stayed sentence on the assault conviction and its enhancements pursuant to section 654, and sentenced Landa to a concurrent term of two years for participation in a criminal street gang.

[4] Landa’s reply brief acknowledges the issue of the correct calculation of presentence credits is moot.

[5] The gang’s name is variously spelled Pearl Street and Pearle Street in the record.

[6] Pearl Street had been a criminal street gang since “the late eighties.”

[7] Defense counsel had objected on grounds of relevance and under Evidence Code section 352 to Nigro’s testimony about a 1998 police report. At a hearing out of the jury’s presence, defense counsel argued “it would seem [the People are] trying to establish [Landa’s] awareness that Pearl Street and its members are involved in some kind of ongoing criminal enterprise doing the crimes that are enumerated under the statute.

But [this] has been established by [Nigro’s] previous testimony that there had been seven STEP notices given to Mr. Landa over a period of about six-and-a-half to seven years.” The prosecutor stated she planned to question Nigro about 6 of the 11 police reports involving Landa. The court overruled defense counsel’s objection, but stated its intention to give the jury the limiting instruction regarding the hearsay nature of the reports, an objection not made by counsel.

[8] The effective date of the Street Terrorism Enforcement and Prevention Act is September 26, 1988. (People v. Gardeley (1996) 14 Cal.4th 605, 616.)

[9] Contrary to Landa’s assertion, section 186.22 neither states nor implies a defendant must have knowledge of the predicate offenses relied on by the People.