P. v. Ruiz

Filed 3/2/06 P. v. Ruiz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

Statement of the Case

By information, defendant Eric Ruiz was charged with three counts of robbery, being a felon in possession of a firearm, burglary, and vehicle theft.[1] (Pen. Code, §§ 211; 459, 12021.1, subd. (a); Veh. Code, § 10851, subd. (a).)[2] The information further alleged that defendant personally used a firearm in committing the robberies, committed all of the offenses for the benefit of a criminal street gang, and had a prior felony conviction that qualified as a strike. (§§ 12022.5, subd. (a), 186.22, subd. (b)(1), 1170.12.) Under a negotiated agreement, defendant pleaded no contest to one count of robbery and being a felon in possession, admitted his prior strike conviction, and waived a jury trial on the gang enhancement allegations. After a court trial, the court found the gang allegations true. Thereafter the court imposed a total sentence of 18 years, comprising a six-year term for the robbery with a consecutive 10-year gun-use enhancement and a consecutive 16-month term for gun possession with a consecutive eight-month gang enhancement. The court also imposed a 10-year gang enhancement to the robbery but stayed it because the plea bargain provided for a maximum term of 18 years.

On appeal from the judgment, defendant claims there is insufficient evidence to support the gang enhancement. He also claims that in imposing the 18-year sentence, the court misunderstood the scope of its discretion.

We affirm the judgment.

Facts

Armed Robbery and Firearm Possession

On December 31, 2003, defendant and Carlos Flores drove a stolen vehicle to G & L Recycling in Gonzales. Defendant was wearing a red jacket and red cap. Defendant and Flores retrieved guns from the trunk--a handgun and a shotgun--and then approached an employee, John Doe. They ordered him into the office, where they forced him to the floor and took his wallet and money from the cash drawer. After they left, Doe flagged down a police car and described the robbers' vehicle. About an hour later, police officers spotted it in Salinas. When the police officer attempted a stop, defendant and Flores sped away, crashed into some cars, abandoned the car, and continued their flight on foot. The officers ultimately apprehended them and found a handgun in the bushes near defendant. They found a shotgun and two-way radios tuned to channel 14 inside the car. They also recovered the stolen money.

Gang Enhancement

Officer Mark Lazzarini testified as a gang expert. He explained that the Norteño gang is a structured organization led by the Nuestra Familia prison gang at Pelican Bay State Prison. There are over 1000 Norteño gang members in Monterey County, and they use streets, local areas, and acronyms, such as Salinas East Market (SEM) and East Las Casitas (ELC), to name themselves. Gang members project their Norteño identity by wearing red clothing and 49er gear, displaying the number 14, and having gang tattoos, including dots and the Huelga or raza bird. The Norteños' common enemy are the Sureños or Southerners.

Officer Lazzarini said that Norteño gang members raise money and seek to control the criminal activity in the areas where they operate. Robbery is a primary gang activity, and he related four robberies and a murder committed in 2001 and 2002 by Norteño gang members for the benefit of the gang.

Given evidence of Flores's numerous Norteño tattoos, his association with other Norteños, his admitted Norteño affiliation, and his prior criminal activity, Officer Lazzarini opined that Flores was an active Norteño gang member when he committed the robbery. He noted that when taken into custody, Flores admitted his Norteño affiliation.

Officer Lazzarini opined that defendant was also an active Norteño gang member when he committed the offense. He based his conclusion on defendant's three Norteño tattoos, his previous admissions of Norteño affiliation to police officers, his association with Norteños inside and outside jail, and the red clothing he wore during the robbery.[3] Officer Lazzarini further noted that defendant had a prior gang-related conviction for threatening a person who he suspected of being a Sureño. Defendant also had posed for photographs, in which he and others made Norteño gang hand signs. Officer Lazzarini stated that when taken into custody, defendant chose to be in a Norteño jail pod.[4] He explained that in general a gang member could get into trouble with fellow Norteño inmates if they learn that he committed a robbery but did not share the proceeds with the gang.

Officer Lazzarini opined that the robbery here was gang-related and committed for the benefit of the gang to enhance its prestige and reputation.[5] He explained that the robbery occurred in 2003, when there was an increase in armed robberies of businesses by Norteño gangs, which he attributed to an effort by the Nuestra Familia to raise money. He further noted that the robbery involved joint activity by two armed gang members, both had Norteño tattoos, one wore gang colored clothing, and they had two-way radios that were tuned to channel 14, a gang-related number. He explained that the possession and use of guns by gang members, in general, and defendant and Flores in particular, benefit the Norteño gang because guns strengthen the gang's ability to attack and defend against rival gangs, help instill fear in the community, and facilitate robberies. He said that being recognizable as a gang member by wearing gang colors or having visible tattoos also enhances the gang's reputation and prestige by broadcasting the gang related nature of an incident to any and all who see it, including the victim.[6]

Paul Lopez, a life-long friend of defendant and his family, testified that he joined the Norteño Salinas East Market gang when he was 21 years old but left 10 years later, when he was 25. He has not been in jail since then. He disagreed with much of Officer Lazzarini expert testimony. He said that wearing the red gang color does not enhance the gang's reputation. He also said that he continues to associate with Norteños at church and in stores and does not fear retaliation because he quit the gang.

Lopez further said there was never a concerted Norteño effort to raise money through drugs and robberies for some sort of gang general fund. He said gang members commit robberies for their own personal benefit and not for the benefit of or in association other Norteño gangs. He doubted that defendant committed the robbery at the direction of a prison gang or for the benefit of or in association with any such gang. He further explained that although prison gangs are structured, local street gangs are not. A prison gang might direct its members to commit robberies; but local gangs, whose members have not been in prison, do not. Finally, he said that jail inmates would not assault a fellow gang member for not giving a cut of his loot to the gang.

Defendant testified that he got his tattoos when he was 15 years old because it was a way to enhance his peer status and impress the girls. He now regrets having them. He said he has always associated with Norteños but never considered himself a gang member. At most, he was a â€