P. v. Parker

Filed 8/9/07 P. v. Parker CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed in part and reversed in part.

Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Rodney Gene Parker appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of carjacking (Pen. Code,  215, subd. (a))[1]and found true a firearm use allegation ( 12022.53, subd. (b)) and a criminal street gang allegation ( 186.22, subd. (b)(1)) on that count. The jury found defendant guilty of second degree robbery ( 211) and attempted second degree robbery ( 211, 664) and found true firearm use allegations on both counts ( 12022, subd. (a)(1)). The jury also convicted defendant of possession of a firearm by a felon ( 12021, subd. (a)(1)) and found true a criminal street gang allegation on that count ( 186.22, subd. (b)(1)).

The trial court found true the allegation defendant suffered a prior serious felony conviction ( 667, subds. (a), (b)-(i), 1170.12). On the carjacking conviction, the trial court imposed the upper term of 9 years, which it doubled to 18 years as a second strike, and added two 10-year enhancements on the firearm use and criminal street gang findings. The trial court imposed an aggregate consecutive term of 6 years and 4 months on the remaining counts and added 5 years for defendants prior conviction, for a total term of 49 years and 4 months.

On appeal, defendant challenges the sufficiency of the evidence supporting the criminal street gang enhancements and the imposition of the upper term sentence on his carjacking conviction. We agree the evidence is insufficient to support the criminal street gang allegation but affirm the remainder of the judgment.

FACTS

Sometime between the evening of April 6 and the morning of April 7, 2005, Justina Arreolas older-model light beige Toyota was stolen from a parking lot on East 101st Street in Los Angeles. At about 6:00 a.m. on April 7, Don Herzig (Herzig) left his house on 155th Street in Gardena for a walk. An older-model light-colored Toyota stopped ahead of him. A man got out of the Toyota, approached Herzig and pointed a gun at him. The man told Herzig to get on the ground, and Herzig complied. The man demanded money. Herzig said he had none because he was on a walk. The man searched Herzigs pockets then returned to the Toyota.[2]

About 10 minutes later, Mark Clemens (Clemens) was outside his house on Harkness Avenue in Manhattan Beach when he saw the Toyota driving down the street. Five minutes later, he saw two men walking in the opposite direction. One wore a sweatshirt and the other a dark jacket with logo patches on it.[3]

About 6:30 that morning, Virginia Arenas (Arenas) left her house on Faymont Avenue in Hermosa Beach. After she unlocked her Honda Accord and put her things inside, two men approached her. One pointed a gun at her and ordered her into the car. She fled, still holding her car keys. One of the men reached into the car and took her purse.[4]

At 6:50 that morning, Karen Obradovich (Obradovich) parked her silver Mercedes Benz at Longfellow and Manhattan Avenues in Hermosa Beach. She saw a car brake ahead of her. A man wearing a black jacket with fluorescent patches approached her. She tried to start her car to drive away, but the man put a gun to her head and told her to get out of the car. She got out and ran to a nearby business, where she requested that someone call the police.[5]

Obradovich went back outside and flagged down Ann Lowell (Lowell), who was driving by. Lowell followed the Mercedes and another caran older, light-colored Toyota. She observed that the driver of the Mercedes was wearing a dark jacket with a design on the arm; the driver of the other car was wearing a black sweatshirt.[6]

Lowell flagged down Hermosa Beach Police Officer Donald Dean Jones, Jr. She directed him to the Toyota. He found Arenas purse in the Toyota.

About 5:30 p.m. that same day, Los Angeles Police Officer Earl Williams observed a silver Mercedes leaving the Jordan Downs Housing Project. Defendant was driving the Mercedes.

Los Angeles Police Officer Christian Mrakich saw the Mercedes near 106th Street in Wilmington about 8:15 that evening. The driver was Willie S., whom Officer Mrakich knew to be on probation with a suspended drivers license. Officer Mrakich checked the cars license number on his computer and found that it had been taken in a carjacking. Officer Mrakich pulled the car over and arrested Willie S. and defendant, who was in the passenger seat. A search of the Mercedes revealed a gun (Peo. Exh. No. 2), the sweatshirt (Peo. Exh. No. 3), the jacket with patches (Peo. Exh. No. 4), and items that had been in the car when it was taken from Obradovich.

Defendant and Willie S. are members of the Grape Street gang, a subset of the Crips, which started in the Jordan Downs Housing Project. Grape Street has identifying colors, letters and hand signs. Its primary activities include drug sales, murder, robbery, extortion and other crimes. Grape Street members have been convicted of murder, robbery and kidnapping. Defendant and Willie S. were arrested in Grape Street territory.

Officer Mrakich was of the opinion that the instant crimes were committed for the benefit of the Grape Street gang. Gangs such as Grape Street maintain control over their territory by fear and intimidation through the willing use of violence. Gang members gain respect by committing crimes and showing off the fruits of their crimes. By committing violent crimes with guns and showing off the fruits of those crimes, gang members enhance their reputations for violence and also enhance the gangs reputation for violence and the fear the gang creates. It was Officer Mrakichs opinion that defendant brought the Mercedes back to Grape Street territory to show off the fruits of his crime and enhance his reputation, as well as the gangs.

DISCUSSION

Sufficiency of the Evidence to Support the Gang Enhancements

In reviewing the sufficiency of the evidence, the question on appeal is whether there is evidence from which a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) In making this determination, we must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (Peoplev.Rayford (1994) 9 Cal.4th 1, 23; accord, People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) We also must examine the entire record, not merely isolated bits of evidence. (Cuevas, supra, at p. 261.)

Substantial evidence is that which is reasonable, credible and of solid value. (Peoplev.Bradford (1997) 15 Cal.4th 1229, 1329.) Although all reasonable inferences must be drawn in support of the judgment, the court may not go beyond inference and into the realm of speculation in order to find support for a judgment. A finding . . . which is merely the product of conjecture and surmise may not be affirmed. (Peoplev.Memro (1985) 38 Cal.3d 658, 695; accord, People v. Waidla (2000) 22 Cal.4th 690, 735.)

Section 186.22, subdivision (b)(1), provides that 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 shall be punished pursuant to that section. Defendant contends that there was no evidence he committed the instant crimes for the benefit of the Grape Street gang, in that the crimes lacked the typical indicia of gang-related crimes, i.e., they did not take place in gang territory, defendant and Willie S. did not flash gang signs or yell gang slogans, and the victims were not rival gang members.

In People v. Morales (2003) 112 Cal.App.4th 1176, the question was whether evidence that one gang member committed a crime in association with other gang members was sufficient to satisfy the requirements of section 186.22, subdivision (b)(1). (Id. at p. 1198.) The court responded that [a]rguably, such evidence alone would be insufficient, even when supported by expert opinion, to show that a crime was committed for the benefit of a gang. (Ibid., italics omitted.) The court noted that the typical close case is one in which one gang member, acting alone, commits a crime. Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. (Ibid.) The court went on to conclude that was not the situation before it. (Ibid.)

Here, there simply was no evidence concerning the commission of the crimes themselves which suggested that they were gang-related within the meaning of section 186.22(b)(1) (People v. Gardeley (1996) 14 Cal.4th 605, 622), i.e., that they were committed for the benefit of, at the direction of, or in association with any criminal street gang ( 186.22(b)(1)). Defendants did not identify themselves as gang members, wear identifiable gang clothing or make gang signs; no rival gangs or gang territory was involved.

Officer Mrakichs testimony as to how defendants conduct would benefit the Grape Street gang was merely his opinion as to defendants intent based on the evidence. It was not sufficient to establish such intent. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199, review den. Dec. 13, 2006.) The People were required to prove that defendants crimes had some connection with the activities of a gang (ibid.) and failed to do so. There thus is insufficient evidence that the crimes were for the benefit of a criminal street gang and not merely a frolic and detour unrelated to the gang. (People v. Morales, supra, 112 Cal.App.4th at p. 1198.) The gang enhancements therefore must be reversed.

Imposition of the Upper Term Sentence for Carjacking

The California Supreme Court recently held in People v. Black (2007) ___ Cal.4th ___ at page ___ that to the extent there are proper recidivist factors on which the trial court relied, a defendant is not entitled to receive anything less than the upper term sentence, and imposition of that sentence does not violate his Sixth Amendment right to a jury trial. In the instant case, in sentencing defendantfirst in denying his motion to strike his prior convictionthe trial court noted: While not the worst criminal history Ive seen, [defendant] does have a very substantial criminal history. Hes been to prison before. Hes been convicted of robbery before. He was on parole for robbery when these offenses occurred. I cant make the finding he falls outside the spirit of the strike law. The trial court then reiterated, in imposing the upper term for carjacking, that defendant was on parole when these crimes occurred. He has engaged in violent conduct, which indicates a serious danger to society. He served a prior prison term. There are no factors in mitigation. Defendants prior criminal history and parole status are recidivist factors justifying imposition of the upper term sentence. (Id. at p. ___; People v. Yim (2007) 152 Cal.App.4th 366, 369; People v. Morton (2007) 152 Cal.App.4th 323, 336.) Defendants upper term sentence consequently is constitutional. (Black, supra, at p. ___.)

The gang enhancements are reversed. In all other respects, the judgment is affirmed. The clerk of the court is directed to prepare a modified abstract of judgment and forward a copy to the Department of Corrections.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

ROTHSCHILD, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line Lawyers.

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

[2] Herzig was unable to identify the man from a lineup but tentatively identified the mans sweatshirt (Peo. Exh. No. 3) and gun (Peo. Exh. No. 2).

[3] Clemens was unable to identify either man. He was able to identify the sweatshirt (Peo. Exh. No. 3) and jacket (Peo. Exh. No. 4).

[4] Arenas was unable to identify either man but recognized the gun and was able to identify her wallet at trial.

[5] Obradovich recognized the jacket (Peo. Exh. No. 4). She identified defendant from photographic and live lineups. At trial, defendant put on the jacket. Obradovich stated that she was 70 percent sure he was the man who took her car. She also identified the gun and a number of other items that had been in the Mercedes when it was taken.

[6] Lowell was able to identify the sweatshirt (Peo. Exh. No. 3) and jacket (Peo. Exh. No. 4).

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.