P. v. Preciado

Filed 10/25/06 P. v. Preciado CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Samuel Mayerson, Judge. Affirmed.

Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

Juan Preciado (appellant) appeals from the judgment entered after a jury convicted him of three counts of resisting an executive officer (Pen. Code, § 69[1]), with findings that the offenses were committed with the specific intent to promote, further, or assist criminal gang conduct (§ 186.22, subd. (b)(1)). The jury also found that he had suffered two prior convictions within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). He was sentenced to nine years in prison. He contends that there was insufficient evidence to support the gang enhancement and that he should not have been sentenced to the upper term for each of the offenses. In a supplemental brief, he asks this court to review the sealed transcripts of the hearings which were held in response to his Pitchess[2] motion. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Lilia Rodriguez testified that on May 1, 2004, she saw a white truck with four Hispanic males pass by her house on 55th Street in Los Angeles. One of the males made a hand sign she knew to be a sign for the Playboys gang. She knew her home was in Playboys territory based on the graffiti and hand signs she had seen in the neighborhood. The truck was driven by her house four times within 10 minutes. She knew that the 55 Bunch gang used to be in the area some time ago, and she had seen “55” graffiti around the neighborhood. She notified the police about the truck and reported its license plate number.

Los Angeles Police Officer Maria Elena Montoya and her partner Officer Reyes spoke with Rodriguez, who told them that the person in the truck making the hand sign also said, “Fuck French Fries,” a derogatory reference to the 55 Bunch.

Later, the officers observed the truck. A record search of the license plate number revealed that the truck was stolen. The officers followed the truck, and were joined by other police vehicles. All of the vehicles traveled with lights and sirens activated. The truck came to a rolling stop in an alley and the person sitting in the front passenger seat opened the door and fled on foot. Officer Montoya continued to follow the truck through a residential neighborhood. Someone threw a gun out of the vehicle, the right rear passenger door opened, and appellant jumped out. The truck kept going, and it was eventually stopped by other officers. One of the occupants had a Playboys tattoo.

Officers Reed and Dorris got out of their car and followed appellant as he ran, and yelled at him to stop. Officer Kouvelis pulled his vehicle in front of appellant’s path as he ran out of an alley. Appellant turned and ran back in the direction of the pursuing officers. Before he could be placed under arrest, appellant engaged in a fistfight with Officers Reed, Dorris, and Kouvelis. During the fracas, appellant announced he was “fast with Playboys” and “the hardest Playboy around.” He said several times that he “ain’t no peanut butter.” Appellant screamed vulgar and racial epithets at the officers.[3] He tried to bite Officer Dorris. Appellant continued to resist all three officers and attempted to grab their weapons. After several minutes, the officers were able to handcuff him and place a leg restraint on him. Officers Dorris and Reed were treated for their injuries at a hospital.

Officer Montoya testified that she is familiar with the area where the chase occurred, and it encompassed Playboys territory and 55 Bunch territory.

Los Angeles Police Officer Julio Benavides testified for the prosecution. He described his extensive education and experience in street gang behavior and, in particular, his familiarity with the Playboys gang and the 55 Bunch gang. The 55 Bunch territory is a small area surrounded by Playboys territory.

Benavides explained that gangs gain control of territory through the use of violence and intimidation. The gang uses intimidation to scare off rival gangs and prevent witnesses of gang crime from testifying. Once the gang members take control of a territory, they have an area to commit their crimes.

Benavides was asked to look at appellant on the day of his arrest. He described appellant’s gang tattoos to the jury. The prosecutor described the scenario which led to appellant’s fight with the officers in the form of a hypothetical question and asked whether appellant’s act of resisting arrest benefited the Playboys gang. Benavides stated: “You have three or four documented Playboy gang members driving through a rival gang territory . . . . One person from inside the car flashes a Playboy bunny hand sign, which would provoke some hostility, possibly a shooting or a murder. The police car gets behind them, a total lack of respect and disregard for the police and the community. They decide not to stop and to be pursued by the police car. The reason they stay in that territory is because they are looking for some friendly person’s house to escape or get into. The handgun is used to possibly commit a drive-by shooting or provoke some sort of violent crime against a rival gang member. When the person is cornered and he decides to fight with the police, he is not only -- by causing a scene and screaming and fighting with the cops, he is not only showing his total disrespect for the police, but he is -- he wants to attract attention. He is showing the community -- which a majority in that part of town is African-American community. He is showing them that he is not scared of the police, he is not scared of the people in the community, he is attracting attention to himself. He is trying to get the community to fear him, trying to get the community to fear his gang, and therefore causing intimidation within the community and promoting himself and the gang.”

Benavides also explained what appellant meant when he said he “ain’t no peanut butter.” Peanut butter is a derogatory reference to the Playboys gang. Appellant was proclaiming that he was defending his gang.

Appellant testified on his own behalf. He admitted he was a gang member, but denied flashing gang signs, having a weapon, and shouting epithets at the officers. He said he was homeless and was at a fellow gang member’s house taking a shower when some other friends picked him up to take him to a picnic. When the vehicle was stopped by police, he ran. He denied resisting arrest.

DISCUSSION

A. Sufficiency of the Evidence

Appellant contends there was insufficient evidence to support the finding on the section 186.22 gang enhancement, citing Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099.

In reviewing a claim of insufficient evidence, we look at the whole record, in a light most favorable to the judgment, presuming the existence of every fact which supports the verdict. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) If we find the verdict is supported by substantial evidence, we may not substitute our evaluations of the witnesses’ credibility for those of the jury. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)

A trier of fact may rely on expert evidence to reach a finding on a gang allegation. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) “Generally, experts may state their opinion based upon facts given in a hypothetical question asking them to assume their truth; however, the hypothetical must root itself in facts shown by the evidence.” (Id at p. 1197.)

Appellant did not dispute the fact that he is a gang member, was with other gang members, and that he got out of the car and ran after police pursued him. Rodriguez testified that an occupant of the car in which appellant was a passenger was flashing gang signs while the vehicle drove around the neighborhood. Officer Benavides testified why gang members would flash gang signs and attempt to evade the police. Unlike Garcia, there was testimony connecting the behavior of appellant to the turf-oriented nature of gangs. Officer Benavides’s opinion specifically addressed the conduct of appellant and why it would promote or benefit the gang. There was ample evidence of intent to support the jury’s finding on the section 186.22 enhancement. (People v. Romero (2006) 140 Cal.App.4th 15, 19.)

In addition, the Garcia court held that section 186.22 required an intent to further other criminal activity of the gang. (Garcia, supra, 395 F.3d at p. 1103.) Appellant makes the same argument here. In People v. Romero, supra, we disagreed with the Ninth Circuit’s interpretation of the statute. We noted: “By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members,’ rather than other criminal conduct.” (People v. Romero, supra, 140 Cal.App.4th at p. 19, citing § 186.22, subd. (b)(1).) Appellant’s conduct helped further the gang’s reputation for violence in the community, which allows it to engage in criminal activity without community intervention, and assisted his fellow gang members’ attempt to evade the officers. Nothing more is required.

B. Sentencing

Appellant contends that pursuant to Blakely v. Washington (2004) 542 U.S. 296, the imposition of the upper term on the three counts violated his Sixth Amendment right to a jury trial. In People v. Black (2004) 35 Cal.4th 1238, the California Supreme Court found that Blakely is inapplicable to California’s sentencing scheme.[4] We therefore reject appellant’s claim of error.

C. Pitchess Motion

Defense counsel filed a Pitchess motion for discovery on October 21, 2004, which the trial court denied on the basis that appellant’s declaration was insufficient. Counsel renewed the motion on December 23, 2004. Defense counsel claimed the officers wrote a false report, used excessive force, and fabricated evidence, i.e., that the officers had lied about recovering the gun.

Appellant asserts he cannot determine if the trial court properly conducted the in camera hearings or ordered disclosure of all appropriate complaints, as the transcripts are sealed. He requested that this court independently review the transcripts. We have done so.

The court conducted an in camera hearing on January 13, 2005. It found good cause to order production of a complaint against one of the officers. A second complaint against another officer was ordered to be produced at a later date. Six other reports were deemed irrelevant.

On January 19, 2005, the court conducted a second in camera hearing. In this hearing, the court examined the complaint it had ordered produced at the first hearing. The court ruled the defense was entitled to the complaint.

The information sought in a Pitchess motion must be recent, relevant, and described with some specificity. (People v. Mooc (2001) 26 Cal.4th 1216, 1226-1227.) “This specificity requirement excludes requests for officer information that are irrelevant to the pending charges. . . . And it enables the trial court to identify what types of officer misconduct information among those requested will support the defense or defenses proposed to the pending charges. This inquiry establishes the statutorily required materiality prong of the good cause showing that a defendant must make to receive in-chambers review of potentially relevant officer records.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021-1022.)

“Section 1045 requires in-chambers record review by the trial court, permits that court to issue an order protecting the officer against ‘unnecessary annoyance, embarrassment or oppression’ (subd. (d)), and requires the trial court to limit the use of any records that are disclosed. By doing so, the section maintains a balance between the officer’s legitimate privacy interests and the criminal defendant’s constitutionally guaranteed right to a fair trial. (People v. Mooc, supra, 26 Cal.4th at p. 1227.)” (Warrick, supra, 35 Cal.4th at pp. 1027-1028.)

Upon review of the sealed transcripts of the two hearings, we have determined that the court properly ordered production of only two of the reports filed against the four police officers. It is apparent from the allegations contained in the other reports that they were not relevant to appellant’s claims of excessive force, fabrication of evidence, and false reporting. Therefore, we find no abuse of discretion in the trial court’s refusal to release additional information.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J.

MANELLA, J.

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[1] All further statutory references are to the Penal Code.

[2] Pitchess v. Superior Court (1974) 11 Cal.3d 531.

[3] Appellant repeatedly screamed an extremely offensive term aimed at African-Americans.

[4] We are aware that the United States Supreme Court has granted a petition for a writ of certiorari of this issue in People v. Cunningham (Apr. 18, 2005, A103501, cert. granted sub nom. Cunningham v. California (2006) ___ U.S. ___ [126 S.Ct. 1329, 164 L.Ed.2d 47]).