P. v. Casas

Filed 4/12/06 P. v. Casas CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Michael E. Pastor, Judge. Affirmed.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Herbert S. Tetef and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Lenny Casas was convicted, following a jury trial, of one count of second degree robbery in violation of Penal Code section 211. The jury found true the allegations that a principal in the robbery personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1) and the robbery was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A). The trial court sentenced appellant to a total term of 15 years in state prison, consisting of the upper term of 5 years for the robbery conviction, plus a 5-year term for the gang enhancement and a 5-year term for the weapon enhancement.

Appellant appeals from the judgment of conviction, contending that the trial court erred in denying the defense motion to bifurcate the trial of the gang enhancement allegation from the robbery trial and in admitting evidence of witness intimidation, and further contending that there is insufficient evidence to support the robbery conviction or the true finding on the gang enhancement allegation. He also contends that the trial court's imposition of the upper term on the robbery conviction violated his federal constitutional right to a jury trial. Appellant joins in the arguments raised by co-defendants Mungia and Camarena on their appeal. We affirm the judgment of conviction.

Facts

On July 14, 2004, at about 5:40 p.m., Hector Melendez was walking home along Union Pacific Avenue near its intersection with Ferris Avenue when he was approached from behind by two men. One of the men asked Melendez about a restaurant in the area, then asked if Melendez had any money. When Melendez replied that he had no money, the second man took out a gun and pointed it at Melendez. The unarmed man searched Melendez, took out his wallet, removed money from the wallet and passed the wallet to the armed man. The armed man took Melendez's social security card from the wallet, then returned the wallet to Melendez. One of the men took Melendez's cell phone.

The two men then got into a black pickup truck parked across the street. A third man was in the driver's seat of the truck. The truck drove away, but Melendez was able to memorize part of the truck's license plate number.

Melendez walked to his home, which was nearby, and wrote down the partial license plate number "6F5023." He called the cell phone company to cancel his service. He then called police.

Soon thereafter, Los Angeles County Sheriff's Deputies Angel Fonseca and Oscar Luevano heard a radio broadcast about a pickup truck with a partial license plate number of "6F5023" which had been used in a robbery. Deputy Fonseca determined from computer records that a pickup truck with the license plate number of "6F50023" was registered to co-defendant Camarena's father. The deputies went to the registered address for the truck, which was in the vicinity of Whittier Boulevard and Alma Street and found the truck. Appellant was in the middle seat, co-defendant Camarena in the driver's seat, and co-defendant Mungia in the passenger seat.[1] The truck drove away, but was stopped by the deputies on Alma Street and its occupants detained.

Deputy Fonseca found a black revolver on the passenger side floorboard. Deputy Banks arrived to assist in the detention and saw Mungia appear to reach toward his pocket. The deputy found six rounds of ammunition in Mungia's hand. Deputy Luevano searched Mungia and found Melendez's social security card in Mungia's wallet.

Melendez was brought to the scene and identified the truck as the one used in the robbery. He identified Mungia as the man with the gun who took his social security card. Melendez initially identified appellant as the man who took his money, but after viewing Camarena, stated that appellant was the driver and Camarena the second robber.

Melendez identified appellant and Mungia at the preliminary hearing, but not Camarena. At trial, Melendez stated that he could not remember whether appellant, Mungia, and Camarena were the perpetrators. Melendez testified that sometime after the preliminary hearing, a friend gave him a message from someone else that he should not testify anymore. Melendez did not want to come to court for the trial because he was afraid that something might happen to him or his family.

Sheriff's Detective Igancio Lugo testified at trial as a gang expert that members of the Laguna Park Vikings gang ("LPV") had committed certain violent crimes in the area. He opined that appellant, Camarena, and Mungia were LPV gang members. The area where the robbery occurred was claimed by both the Winter Garden gang and the Mara Villa gang, the latter of which was an enemy of the Sureno network of gangs. LPV was a Sureno gang. Detective Lugo opined that when members of one gang enter rival gang territory and commit a crime, they benefit their own gang by intimidating the local residents and benefit themselves by earning increased status in their gang.

Appellant presented evidence showing that he was in a drug rehabilitation class at the Plaza Community Center from 3:00 p.m. to 5:00 p.m. on July 14. Appellant's friend Christina DeLeon testified that she saw him at about 5:00 p.m. on July 14 outside the center and spoke with him until his parents arrived to pick him up. At about 5:10 p.m. or 5:15 p.m., she called appellant at home and spoke with him for 30 to 45 minutes. Appellant's mother testified that she and her husband picked appellant up at the center at 5:00 p.m. on July 14, and drove him home. Appellant ironed some clothes and left the house at about 5:40 p.m. Appellant's cousin, Louie Mercado, testified that he was driving along Whittier Boulevard when he saw appellant in Salazar Park sometime between 5:00 p.m. and 6:00 p.m. on July 14, and that appellant went with him to a donut shop and waited while Mercado ordered food. After 30 to 60 minutes, Mercado started to drive appellant home, but stopped at Alma and Whittier so that appellant could join some friends in the park. As Mercado drove away, he saw several police cars driving toward the park.

Appellant also presented the testimony of forensic psychologist Robert Shomer, who testified as an eyewitness identification expert.

Mungia presented the testimony of Kimi Scudder, a gang intervention worker. Scudder opined that if a gang member did not state his gang name or affiliation or flash a gang sign during a crime, the crime was personal, not gang-related. On cross-examination, Scudder testified that if a gang member obtained a loaded gun, traveled into rival gang territory with fellow gang members, robbed someone on the street and returned to his own gang territory in a getaway car, she would say that the crime was committed for the benefit of the gang.

In rebuttal, Detective Lugo testified that the community center was 1.6 miles from appellant's house and was a six to seven minute drive in moderate traffic and that the location of the robbery was about 1.7 miles from appellant's house and was a four to five minute drive.

Discussion

1. Motion to bifurcate

Appellant contends that the trial court erred in denying his motion to bifurcate the trial of the gang allegation from the trial of the charged offense of robbery, and further contends that this error violated his constitutional rights to a fair trial and due process. We see no abuse of discretion in the admission of the gang evidence, and thus no violation of appellant's constitutional rights.

A trial court has discretion to bifurcate the trial of a gang enhancement from the trial of the charged offense. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) However, unlike a prior conviction allegation, a "criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation." (Ibid., emphasis added.) The burden is on the defendant to show that there is a substantial danger of undue prejudice from the evidence. (Id. at pp. 1050-1051.)

The general rule is that gang evidence is admissible to show motive, intent or identity, so long as the probative value is not substantially outweighed by its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193.) Similarly, it is well established that gang evidence is admissible when the very reason for the crime is gang related. (People v. Champion (1995) 9 Cal.4th 879, 922; People v. Tuilaepa (1992) 4 Cal.4th 569, 588; People v. Frausto (1982) 135 Cal.App.3d 129, 140; People v. Beyea (1974) 38 Cal.App.3d 176, 194.)

Here, the trial court expressly found that the probative value of the evidence was not substantially outweighed by the probability that admission would create a substantial danger of undue prejudice. The court also found that the gang evidence went to the issue of guilt. We agree.

Appellant contends that the robbers did not say or do anything to suggest to the victim that the motive for the robbery was gang related, such as issue a gang challenge or make gang signs, and so their gang membership was not relevant to the robbery charge. We do not agree.

Detective Lugo, who was an expert on gang culture, testified that the gang membership of appellant, Mungia and Camarena provided a motive for the highly risky daylight armed robbery of a young man who was afoot and unlikely to have much of value on his person: to intimidate the neighborhood and to earn boasting rights. Detective Lugo opined that the robbery would intimidate the neighborhood even if the men did not identify their particular gang. Further, Melendez believed the robbers to be gang members, based primarily on their baggy clothing. Thus, by their choice of clothing, the robbers did do something to indicate that they were gang members, although they did not identify their particular gang.

Appellant also contends that evidence of the crimes committed by the LPV gang members who were not involved in the robbery was irrelevant to the substantive robbery charge in this case, and was highly inflammatory and increased the possibility of prejudice to him. As our Supreme Court has explained, when evidence of convictions of other gang members is offered to prove a gang enhancement, this evidence does not pose a risk of confusing the jury with collateral matters, and the convictions are "not evidence of offenses for which a defendant might have escaped punishment." (People v. Hernandez, supra, 33 Cal.4th at pp. 1051.) Thus, the possibility of prejudice will normally be minimal, not substantial.

2. Witness intimidation

Appellant contends that evidence of threats to a witness is relevant and admissible only if the witness intends to or does contradict prior testimony or statements. He contends that the trial court erred in admitting evidence of threats to Melendez because there was no indication that Melendez was going to contradict any prior statements or testimony. He further contends that since the threats were not admissible to show credibility, they were improper hearsay, and that the admission of such hearsay violated his Sixth Amendment right to confrontation. We do not agree.

Appellant relies on People v. Brooks (1979) 88 Cal.App.3d 180 to support his contentions. He is correct that this Court held in Brooks that evidence of a threat to a witness was not relevant because "[n]o inconsistent testimony had preceded the prosecutor's questioning [of the witness]; there was no issue of credibility (or 'state of mind' as the trial court termed it)." (Id. at p. 187.)

In Brooks, we noted that the better practice would be to defer questioning about threats to a witness until after the witness had given inconsistent testimony. Such a practice eliminates the possibility of erroneous admission of threat evidence. (People v. Brooks, supra, 88 Cal.App.3d at p. 187.) As appellant acknowledges, a hearing pursuant to Evidence Code section 402 to determine whether the witness is going to offer inconsistent testimony also eliminates the possibility of such error.

Here, the trial court did not hold a section 402 hearing, but did hold a hearing in which the admissibility of the threat evidence was discussed. In that hearing, the prosecutor represented that Melendez was "going to have some selective memory now" and "is going to be changing his testimony." We find this to be an adequate inquiry by the court. Melendez did indeed have a selective memory. He claimed "not to remember" whether appellant, Mungia, and Camarena were the men who robbed him. He also claimed that he did not remember parts of the field show-up and most of the preliminary hearing.

"Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event. (People v. Green (1971) 3 Cal.3d 981, 988 [92 Cal.Rptr. 494, 479 P.2d 998].) However, courts do not apply this rule mechanically. 'Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement [citation], and the same principle governs the case of the forgetful witness.' (Ibid.) When a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. (Id. at pp. 988-989.) As long as there is a reasonable basis in the record for concluding that the witness's 'I don't remember' statements are evasive and untruthful, admission of his or her prior statements is proper. (People v. O'Quinn (1980) 109 Cal.App.3d 219, 225 [167 Cal.Rptr. 141].)" (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.)

Appellant contends that Melendez's lack of memory did not amount to inconsistent statements because he affirmed his earlier out-of-court statements. We find Melendez's claims of lack of memory show deliberate attempts at evasion.[2] Melendez did not remember if he identified appellant, Mungia and Camarena at the field show-up, but had no apparent problem recalling non-incriminating details of the show-up, such as the time which elapsed between his 911 call and being taken to the field show-up by deputies, and the facts that he was shown a truck first, then some individuals, that he was shown three men, and that the deputies brought the men out one at a time. Similarly, when Melendez was shown a gun at trial, he recognized it as the one used in the robbery, and remembered that he had identified that same gun at the preliminary hearing. Yet Melendez not only claimed at trial that he did not remember whether Mungia was one of the robbers, he claimed that he did not remember identifying Mungia at the preliminary hearing. He also claimed that he did not remember saying at the preliminary hearing that he was certain of his identifications.

Appellant's second contention, that the threats were inadmissible hearsay, is based on his argument that the threats could only be admitted to show credibility if the witness contradicted prior statements or testimony. It is well settled, however, that threats which are properly admitted to show credibility are nonhearsay. (People v. Brooks, supra, 88 Cal.App.3d 180, 187.) Since we have found that the threats were properly admitted to show credibility, the threats are nonhearsay. As such, they do not violate appellant's Sixth Amendment right to confrontation.

3. Sufficiency of the evidence - robbery conviction

Appellant contends that there is insufficient evidence to support his conviction for robbery. We see sufficient evidence.

In reviewing the sufficiency of the evidence, "courts apply the 'substantial evidence' test. Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)

"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] 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 witness's credibility for that of the fact finder. [Citations.]" (People v. Jones (1990) 51 Cal.3d 294, 314.)

Appellant contends that the only evidence connecting him to the robbery was Melendez's identification. He contends that that evidence was not substantial because Melendez did not have an opportunity to observe the driver of the truck and he misidentified appellant at the field show-up. We do not agree.

Melendez did identify appellant as the driver of the truck, both at the field show-up and at the preliminary hearing. The uncorroborated testimony of a single witness is sufficient to sustain a conviction unless the testimony is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.)

Appellant contends, without citation to legal or scientific authority, that the distance of 50 feet from Melendez to the truck meant that Melendez had no opportunity to observe the truck's driver. Melendez testified that he could see the driver. We note that Melendez was able to read the truck's license plate, which certainly indicates that he had good eyesight. We see nothing inherently incredible or physically impossible in this testimony. It was for the jury to decide whether Melendez's testimony on this point was credible.

Appellant also contends that Melendez initially misidentified him, and so his identification has no weight. We agree with respondent that while Melendez may have misidentified appellant's role in the robbery, he consistently maintained that appellant was involved in the crime. Melendez's only mistake was to state that appellant was one of the robbers when he first saw appellant, rather than the driver. This mistake does not render Melendez's testimony inherently incredible or physically impossible. It was for the jury to decide whether Melendez's testimony on this point was credible.

4. Sufficiency of the evidence – gang allegation

Appellant contends that there is insufficient evidence to support the true finding on the gang allegation. We see sufficient evidence.

"[T]o subject a defendant to the penal consequences of [a gang enhancement], the prosecution must prove that the crime for which the defendant was convicted had been '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.' (§ 186.22, subd. (b)(1) and former subd. (c).) In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a 'pattern of criminal gang activity' by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called 'predicate offenses') during the statutorily defined period. (§ 186.22, subds. (e) and (f).)" (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.)

Here, appellant contends that the evidence is insufficient to show that the crime was committed for the benefit of a criminal street gang because no reference to a specific gang was made before, during, or after the commission of the crime. No such reference was required.

Both Detective Lugo and co-defendant Mungia's witness, Scudder, opined that a crime which involved a group of gang members driving into rival gang territory with a loaded gun, robbing someone and returning to their own gang territory would be for the benefit of the gang. In responding to the hypothetical posed by the People, Detective Lugo assumed that the men in the hypothetical "appear[ed] to be gang members." He opined that the gang would benefit because the crime would instill fear and intimidation in the community. He explained that it was not important that the gang members establish their specific gang membership, because the gang would benefit from the community's general fear of any gang member. As the victim testified, appellant, Mungia and Camarena were dressed like gang members

To the extent that appellant contends that a specific intent to benefit the gang is an element of the gang enhancement, he is mistaken. "[S]pecific intent to benefit the gang is not required. What is required is the 'specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) A defendant's intentional acts, combined with his knowledge that those acts would assist crimes by fellow gang members, is sufficient to prove this specific intent. (Id. at pp. 1198-1199.) Here, the evidence showed that appellant intended to commit a robbery with men he knew were gang members. That is sufficient evidence to show that he had the specific intent to further or assist criminal conduct by gang members.

Appellant also cites Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 as authority that the gang enhancement applies only if the charged offense was committed with the specific intent to assist other criminal conduct by gang members. It is true that, in Garcia, the court affirmed the district court's granting of habeas relief as to the gang enhancement because the record did not "'support an inference that [the defendant] robbed [the victim] in order to facilitate other gang related criminal operations within [the community].'" (Id. at p. 1103.)

"'Federal decisional authority is neither binding nor controlling in matters involving state law.'" (Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 55.) Further, we do not find the reasoning in Garcia persuasive. There is no requirement in section 186.22, subdivision (b), that the defendant's intent to assist criminal endeavors by gang members must relate to criminal activity apart from the offense being committed. To the contrary, the specific intent required by the statute is "to promote, further, or assist in any criminal conduct by gang members." (Pen. Code, § 186.22, subd. (b), italics added.)

5. Sentencing error

Appellant contends that the imposition of the upper term by the trial court violated his federal constitutional right to a jury trial as set forth in Blakely v. Washington (2004) 542 U.S. 296. The California Supreme Court has held that Blakely does not invalidate California's upper-term sentencing procedure. (People v. Black (2005) 35 Cal.4th 1238. Accordingly, appellant's claim must be rejected.

6. Joinder

Appellant identifies the appeals of co-defendants Mungia and Camarena and pursuant to California Rules of Court, rule 13(A)(5), joins in all issues raised by his former co-defendants in their appeals.

We have previously rejected the claims raised by Mungia and Camarena. Appellant has made no additional argument which particularizes his co-defendants' claims to his own situation. Accordingly, no further discussion is required. Appellant is not entitled to any relief on the basis of his joinder.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Apartment Manager Attorneys.

[1] Mungia and Camarena were tried with appellant and were convicted of Melendez's robbery, but are not parties to this appeal.

[2] We note that the trial court instructed the jury with CALJIC No. 2.13, which states, among other things, that "If you disbelieve a witness' testimony that he or she no longer remembers a certain event, that testimony is inconsistent with a prior statement or statements by him or her describing that event."