P. v. Yogupicio

Filed 3/11/10 P. v. Yogupicio CA2/2

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Susan M. Speer, Judge. Remanded for resentencing as to defendant and appellant Manuel D. Yogupicio. Affirmed as to defendant and appellant Jose M. Villanueva.

Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant Manuel D. Yogupicio.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant Jose M. Villanueva.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

Manuel D. Yogupicio (Yogupicio) and Jose M. Villanueva (Villanueva) appeal from a judgment entered after both were convicted of count 1, second degree robbery (Pen. Code, 211)[1]and Yogupicio was convicted of count 2, resisting arrest by Los Angeles Police Department Officer Anthony Smith (Smith) ( 69) and count 3, resisting arrest by Los Angeles Police Department Officer Dennis Cunningham (Cunningham) ( 69). The same jury found true the allegation as to count 1 that both defendants committed the offense for the benefit of a criminal street gang. ( 186.22, subd. (b)(1)(C).) The trial court found true the allegation that each defendant had a prior serious or violent felony conviction which was a strike conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) (the Three Strikes law).

Yogupicio was sentenced to state prison for 27 years eight months, consisting of the following consecutive terms: as to count 1, 10 years (the upper term of five years, doubled); as to count 2, 16 months (one-third the midterm of 24 months, doubled); as to count 3, 16 months (one-third the midterm of 24 months, doubled); 10 years for the gang enhancement; and five years for the prior serious felony conviction.

Villanueva was sentenced to state prison for 21 years, consisting of the following consecutive terms: as to count 1, six years (the midterm of three years, doubled); 10 years for the gang enhancement; and five years for the prior serious felony conviction.

CONTENTIONS

Yogupicio contends that: (1) the trial court erred when it did not give a unanimity instruction to the jury regarding the two resisting arrest counts; and (2) the trial court abused its discretion when it sentenced him consecutively on all subordinate counts under the Three Strikes law. He also joins in the issues raised in Villanuevas brief.

Villanueva contends that the gang enhancement must be reversed because there was no evidence showing he had the specific intent to promote the gangs activity beyond the charged crime. He joins in the issues raised in Yogupicios brief.

We vacate Yogupicios consecutive sentence as between counts 2 and 3 and remand for resentencing. We affirm as to defendant Villanueva.

FACTS

On September 30, 2007, Yogupicio and Villanueva, in a green van, drove up to Austin Green (Green), Gary Rosales (Rosales) and two of their friends who were walking on a street. The area was outside of Pacoima Trece gang territory. Yogupicio and Villanueva got out of the car and asked Green and Rosales where they were from. Rosales replied that he did not gang bang and moved aside to get away from them. Yogupicio and Villanueva then yelled This is Pacoima Trece, and told Rosales to give them his belongings. Defendants kicked and punched Green, at one point pushing him against a fence. Defendants pulled off Greens sweater and took his backpack which contained a bottle of liquor and a baseball cap. Defendants chased Green and Rosales who ran to a liquor store, yelling Were gonna find you. Defendants drove off in the green van. Green called 911 and officers arrived five to 10 minutes after the call. Cunningham interviewed Green. About 20 minutes after the officers arrived, Green and Rosales saw the green van in the area. Officers Kane (Kane) and Smith detained the defendants. Green and Rosales identified the defendants as the perpetrators. Both defendants wore oversized clothing and had shaved heads. Yogupicios clothes were blue. The officers found Greens possessions inside the van.

Villanueva was apprehended without incident. When ordered to get out of the van, Yogupicio refused, called the officers rookies, told them to fuck off and said that he was going to kill them. Yogupicios fists were tightly clenched in a fighting stance. He refused to put his hands up as ordered. Cunningham testified that Smith then used a taser on Yogupicio, who laughed and tried to strike Cunningham at least three times with his fist through the open window. Smith testified that he saw Yogupicio take a swing at Cunningham and miss before Smith used the taser on Yogupicio. Cunningham grabbed Yogupicios arm and pinned it against the van. Smith punched Yogupicio in the face three times as Yogupicio, cursing, hit Cunningham. Cunningham hit Yogupicio. Yogupicio said lets fight, and Im a crazy gangster. When Smith warned Yogupicio that he would use the taser on him again, Yogupicio rolled back inside the van and began kicking at the officers. He kicked Cunningham in the arm through the window. Smith tasered Yogupicio on the right leg. Yogupicio laughed, pulled his legs back inside, and said you cant kill a crazy gangster. Ultimately, Smith and Cunningham pulled Yogupicio out through the window. Yogupicio tried to run, yelling that he had a gun. Yogupicio was subdued and arrested. The officers did not find a gun on him or in the van.

Smith testified as a gang expert for the prosecution. Smith stated that gangs crave respect from other gang members, rival gangs, and the community. They gain respect by engaging in violent crimes. An assault on a police officer raises a gang members status because it shows that he is not afraid of the police. Associate gang members hang out with gang members but do not commit crimes for the gang. A non-gang member can be assaulted or shot for displaying a gang tattoo. Smith had never heard a non-gang member use the phrase where are you from?; rather, that phrase is used as a challenge by gang members. Shouting a gang name is a form of intimidation and it is rare for a person to claim to be a member of a gang to which he does not belong.

Smith testified that the Pacoima Trece gang has 180 members whose activities include possession of firearms, sale of narcotics, and robberies. Members of the Pacoima Trece gang engage in drive-by shootings, commit violent crimes in groups, and are well armed. Smith described their hand signs and gang tattoos, including 818 and Vallero. He stated that gang members sometimes wear Pittsburgh Steelers hats and blue clothing. Smith opined that a gang member might not wear gang clothing in rival gang territory if he is surveying the area in order to commit a crime and wishes to avoid identification by the police.

Smith opined that Yogupicio is a Pacoima Trece gang member because he wore blue clothing during the offense, had Vallero and 818 tattoos on his body, and shouted you cant hurt a crazy gangster, when he was being apprehended. Smith opined that both defendants are Pacoima Trece gang members because they shouted Pacas Trece gang, and where you from? during the assault and robbery; they acted in concert to rob the victim; and they were issuing challenges in rival gang territory. Given a hypothetical situation based on similar facts, he opined that the crime was committed for the benefit of the gang based on the totality of the circumstances: the challenges by the defendants; the yelling out of their gang name; the crime occurred outside of Pacoima Trece territory; the tattoos and blue oversized clothing worn by Yogupicio; and the fact that the two were acting in concert.

DISCUSSION

I. The trial court had no duty to give a unanimity instruction

Yogupicio contends that the trial court erred when it did not give a unanimity instruction to the jury regarding the two resisting arrest counts. We disagree.

A criminal conviction requires a unanimous jury verdict. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Where a defendant is charged with a single criminal act, and the evidence shows more than one such act, the prosecution must elect a specific act or the jury should be instructed with a unanimity instruction. (Id. at p. 1132.) A unanimity instruction should be given sua sponte when appropriate. (People v. Castaneda (1997) 55 Cal.App.4th 1067, 1071.) The unanimity instruction applies to acts that could have been charged as separate offenses. (People v. Maury (2003) 30 Cal.4th 342, 422.)

Section 69 punishes [e]very person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty . . . . Yogupicio contends that the unanimity instruction should have been given because the jury could have believed he committed some of the acts introduced into evidence by the People to prove a violation of section 69, but not others. Specifically, he argues that some jurors could have believed that Yogupicios threats before the taser was used amounted to resisting arrest, but that the first use of a taser on Yogupicio was an excessive use of force because there is uncertainty whether Yogupicio was tasered before or after he attempted to strike Cunningham. He urges that a finding of excessive use of force would have vitiated a finding that Yogupicio had resisted arrest based on his physical contact with the officers. He also contends that some jurors may have believed Yogupicios physical contact with the officers, but not his threats, was sufficient evidence to prove he resisted arrest.

We disagree with Yogupicios argument. No unanimity instruction is required when two or more offenses are so closely connected in time that they form part of one transaction or when the statute contemplates a series of acts over a period of time. (People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Diedrich (1982) 31 Cal.3d 263, 282; People v. Lopez (2005) 129 Cal.App.4th 1508, 1534 [no unanimity instruction required for section 148 violation involving multiple officers where prosecutor asked the jury to consider everything that happened after the arrest].) The acts forming the basis for the charge of resisting arrest by Smith in count 2, were so closely related in time that they formed a single transaction and were not discrete events. Yogupicios threats, clenching of fists, and attempts to hit and kick Smith occurred in rapid succession. The same can be said for the acts forming the basis for the charge of resisting arrest by Cunningham in count 3. Yogupicios threats, blows, and kicks to Cunningham occurred within a matter of minutes. Even after he was pulled from the van, Yogupicio struggled with Smith and Cunningham, cursed, said he had a gun, and attempted to flee. We do not agree with Yogupicio that the prosecutor, by describing the sequence of events, was inviting the jury to choose which of the acts actually amounted to resisting arrest. Rather, the prosecutor simply argued that Yogupicios actions, taken as a whole and described as one continuous transaction albeit against different victims, fell well within the statutory definition of resisting arrest.

In any event, any instructional error was harmless under either the standard of Chapman v. California (1966) 386 U.S. 18, 24 or People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Frederick (2006) 142 Cal.App.4th 400, 419 [split of authority exists as to which harmless error standard applies to unanimity instructional error].) It is beyond a reasonable doubt that the outcome would have been the same had the unanimity instruction been given. The evidence was strong that Yogupicio resisted arrest by both officers: he refused to comply with orders to raise his hands and get out of the van; used threatening, confrontational, and abusive language; tried to strike the officers; refused to comply even after a taser was used; attempted to kick Smith and succeeded in kicking Cunningham; told the arresting officers he had a gun; and tried to run away from the officers.

We conclude that the trial court was not obligated to give a unanimity instruction and any failure to do so was at most harmless error.

II. The trial court did not exercise its informed discretion in imposing consecutive sentences as to Yogupicio as between counts 2 and 3

Yogupicio next contends that the trial court committed prejudicial abuse [of] discretion when it believed that it was required to sentence [Yogupicio] consecutively on all subordinate counts under the Three Strikes law. [2] We conclude that the trial court did not exercise its informed discretion in imposing consecutive sentences as between counts 2 and 3 and reverse and remand the case for resentencing on counts 2 and 3. However, the trial court was required to impose a sentence for one count of resisting an executive officer consecutive to the robbery count.

Section 667 subdivision (c)(6) requires that one of the counts of resisting an executive officer, either count 2 or 3, be imposed consecutively to the robbery count. If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e). ( 667, subd. (c)(6).) By implication, consecutive sentences are not mandatory under subdivision (c)(6) if the multiple current felony convictions are committed on the same occasion or aris[e] from the same set of operative facts. (People v. Hendrix (1997) 16 Cal.4th 508, 513-515.) Count 1 did not arise out of the same set of operative facts and was not committed on the same occasion as the two counts of resisting an executive officer. The robbery of Green had been completed and the defendants had driven away from the scene. It was after the police had begun their investigation of the robbery, approximately 25 to 30 minutes later, that the defendants green van was observed back in the area. It was then, at a different location, at a different time, and involving different motives and victims, that the acts giving rise to the resisting arrest charges occurred. Thus a consecutive sentence for at least one count of resisting arrest and the robbery was mandated. (People v. Lawrence (2000) 24 Cal.4th 219, 222-223 [consecutive sentences mandated under Three Strikes law where defendant stole item from a store and a few minutes later while in flight from that crime entered the backyard and assaulted the victim].)

Therefore, the trial court had discretion to impose either a concurrent or consecutive sentence only as between the two counts of resisting an executive officer. Consecutive sentences are not mandatory under section 667, subdivision (c)(6) if the multiple current felony convictions are committed on the same occasion or aris[e] from the same set of operative facts. (People v. Hendrix (1997) 16 Cal.4th 508, 513-515.) Assuming consecutive sentences were not required under a statute other than the Three Strikes law, the trial court therefore retains discretion to sentence defendant either concurrently or consecutively. (Id. at p. 514.)

Both parties agree that consecutive sentences were not mandatory as between counts 2 and 3, because the two counts of resisting an executive officer were committed on the same occasion or arose from the same set of operative facts, taking place at the same location and the same time. But, in response to Yogupicios opening brief, the People urged that the trial court exercised its discretion in imposing consecutive sentences as to counts 2 and 3. Later, in a subsequent supplemental letter brief, the People seem to concede that the trial court did not exercise its informed discretion, instead requesting remand of the matter to the trial court for the purpose of deciding whether the sentence for second conviction for resisting an executive officer should be imposed concurrently or consecutively.

We remand for resentencing with directions to the trial court to exercise its discretion in sentencing Yogupicio to consecutive or concurrent sentences as between counts 2 and 3. (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1254 [when a reviewing court identifies error relating solely to sentencing, it simply remands for resentencing].)

III. The evidence was sufficient to prove that defendants committed the robbery for the benefit of a gang

Villanueva contends that (1) there was no evidence showing that Villanueva had the specific intent to promote the gangs activity beyond the charged crime; (2) although he shouted a gang name, he was not a member of the gang; and (3) there was no evidence that the robbery of personal items benefitted the gang. We disagree.

The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] [] . . . But it is the jury, not the appellate court, which must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury. (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Section 186.22, subdivision (b)(1) enhances the punishment of any 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.

Citing Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), Villanueva contends that section 186.22, subdivision (b)(1) requires a showing of intent to promote the gangs criminal activity beyond the charged crime. We disagree. California Courts of Appeal have rejected the Ninth Circuits reasoning. (People v. Vazquez (2009) 178 Cal.App.4th 347, 353-354 [rejecting Garcia and holding that section 186.22, subdivision (b)(1) provides an enhanced penalty where the defendant specifically intends to promote, further, or assist in any criminal conduct by gang members but does not require that this criminal conduct by gang members be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing]; People v. Romero (2006) 140 Cal.App.4th 15, 19 [same].) [A]ll that is required is a specific intent to promote, further, or assist in any criminal conduct by gang members. ( 186.22, subd. (b)(1).) (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)

Next, Villanueva urges that the evidence that he shouted a gang name, in the absence of evidence of gang membership, did not support the section 186.22, subdivision (b)(1) enhancement. Again we disagree.

Expert opinion may form the basis from which a jury can find that the crime comes within the ambit of a section 186.22 gang enhancement pursuant to which the People must prove that the defendant committed a crime for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members. (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) Villaneuvas citation to Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846 to support his argument that the mere shouting of a gangs name is insufficient evidence that a shooting was committed in association with gang members does not assist him. In that case, the court held that because there was no evidence of the existence of a criminal street gang yelled out by one of the defendants, the street gang enhancement was improperly found to be true. Here, Smith testified extensively about the existence and history of the Pacoima Trece gang. Smith opined that both defendants claimed Pacoima Trece because they shouted the gangs name during the crime, asked the victims where they were from, and acted in concert to rob the victim in rival gang territory. He also noted that Yogupicio, specifically, wore blue, oversized clothing, sported gang tattoos, and shouted you cant hurt a crazy gangster, when being apprehended. Since the two defendants acted together, it was reasonable to conclude that Villanueva was a gang member and acted to support his gang.

Generally, an expert may render opinion testimony on the basis of facts given in a hypothetical question that asks the expert to assume their truth. (People v. Gardeley, supra, 14 Cal.4th at p. 618.) Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. (People v. Villalobos, supra, 145 Cal.App.4th at p. 322.) Smith opined that the crime was committed to benefit the gang given a hypothetical with similar facts, i.e., challenges issued by defendants, the yelling out of their gang name in rival gang territory, acting in concert, and wearing tattoos and oversized clothing. We conclude that the evidence was sufficient for the jury to find that this crime was committed for the benefit of the Pacoima Trece gang.

We also reject Villanuevas final contention that there is no evidence that the robbery of personal items from Green and Rosales would benefit the gang because there was no evidence of an ongoing gang war or that the robbery was based on any type of retaliation. Smith testified that one of the most important reasons that gangs commit violent crimes is to gain respect from other gangs, and that gangs commit violent crimes against average citizens in order to instill fear in them such that crime may go unreported and thus benefit the gang. The jury was entitled to find that the robbery benefited the gang based on the testimony of Smith that the defendants enhanced the gangs reputation. Therefore, we conclude that the evidence was sufficient to support the jurys finding on the gang enhancement allegation.

DISPOSITION

As to defendant Yogupicio, the sentences on counts 2 and 3 are vacated and the matter is remanded for resentencing with directions to the trial court to exercise its discretion in sentencing Yogupicio to concurrent or consecutive sentences as between those two counts only. The trial courts order sentencing defendant Yogupicio to the consecutive sentence between count 1 and one count of resisting an executive officer is affirmed. In all other respects, the judgment as to defendant Yogupicio is affirmed. As to defendant Villanueva, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

CHAVEZ

We concur:

______________________________, P. J.

BOREN

______________________________, J.

DOI TODD

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

[2]This issue does not apply to Villanueva, who was convicted of only one count of second degree robbery.