Filed 8/22/17 P. v. Williams CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Shaquille Jerrell Williams guilty of robbery (Pen. Code, § 211)[1] and found true the gang enhancement allegations under section 186.22, subdivision (b)(1). The trial court sentenced him to an aggregate term of 13 years in prison.

On appeal, defendant contends there is insufficient evidence to establish the “criminal street gang” element of the gang enhancement. Defendant further contends the trial court prejudicially erred in failing to sua sponte instruct the jury in accordance with the principles set forth in People v. Prunty (2015) 62 Cal.4th 59 (Prunty). We affirm.

I. BACKGROUND[2]

Around 11:00 p.m. on September 18, 2012, Michael Penacho was robbed by defendant, Harold Dossman, and a third unidentified male while he was talking on his cell phone outside his residence in the Rosemont area of Sacramento. Immediately prior to the robbery, two of the men approached Penacho and asked him if he was a person whose name Penacho did not remember. When Penacho answered “no” and returned to his conversation, defendant grabbed Penacho’s cell phone and punched him in the right eye. The unidentified third person then punched Penacho on the left side of his face. As he was being assaulted, Penacho saw Dossman walking towards him from across the street. At that point, he heard the three men “talking about gangs;” they used the words, “a FUCK (sic) gang,” “Starz,” and “Rosemont.” During the attack, Penacho also heard the men yell “Starz Up Gunz Down.” After the attack ended, Penacho discovered that his keys, cell phone, cigarettes, lighter, and money from his wallet were missing. The police were called and Penacho was subsequently taken to the hospital by ambulance for medical treatment.

When Penacho returned home the next morning, his wife showed him a post on her Facebook page that had been made from his stolen cell phone. The Facebook post contained phrases similar to those Penacho heard during the robbery, including the phrases: “FUZK GANG” (pronounced “fuck gang”) and “Starz Up Gunz Down.” When Penacho’s friend performed a Google search using the phrase “Fuzk Gang,” the results produced photographs of defendant and Dossman on a Fuzk Gang Facebook page.

Detective Chad Campbell of the Sacramento County Sheriff’s Department was assigned to investigate this case. He interviewed Penacho by telephone and later met with him in person. Penacho told Detective Campbell about the post on his wife’s Facebook page. Detective Campbell described the post as “a gang rant with several gang names involved.”

During the investigation, Penacho’s wife e-mailed seven photographs to Detective Campbell that she downloaded from the Fuzk Gang Facebook page. Six of the photos depicted defendant and the seventh depicted Dossman, who is defendant’s cousin. While viewing the Fuzk Gang Facebook page, Detective Campbell saw photographs of black males “throwing” various gang signs as well as written gang rants specifically referencing “Starz Up,” which he characterized as a gang. One of the postings on the Facebook page contained references to “S.U.S.,” “mobb,” “Starz,” and “g-parkway mobb.”

Penacho identified defendant and Dossman as two of the perpetrators of the robbery from photographic lineups.

II. DISCUSSION

A. Sufficiency of the Gang Evidence

Defendant contends the evidence is insufficient to establish the “criminal street gang” element of the gang enhancement. He argues the prosecution introduced no evidence that a criminal street gang named “Starz-Up” existed. He further argues that, even assuming the gang at issue is Stick Up Starz, the prosecution’s proof on the “pattern of criminal gang activity” requirement is deficient under the standards set out in Prunty. We disagree.

1. Standard of Review

“In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. (Ibid.) If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v. Albillar (2010) 51 Cal.4th 47, 59-60.) “Reversal for insufficient evidence is warranted only where it clearly appears that upon no hypothesis whatever is there sufficient evidence to support a conviction.” (People v. Ewing (2016) 244 Cal.App.4th 359, 371.)

2. The Street Terrorism Enforcement and Prevention (STEP) Act

The STEP Act was enacted in 1988 “to seek the eradication of criminal activity by street gangs.” (§ 186.21.) The STEP Act creates both a substantive offense for active participation in any criminal street gang (§ 186.22, subd. (a)) and an enhancement to be imposed where any person is convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). The elements of the gang enhancement are: (1) commission of a felony “for the benefit of, at the direction of, or in association with any criminal street gang,” and (2) with “the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b).)

“To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group’s primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]” (People v. Duran (2002) 97 Cal.App.4th 1448, 1457; see § 186.22, subd. (f).) “A ‘pattern of criminal gang activity’ is defined as gang members’ individual or collective ‘commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more’ enumerated ‘predicate offenses’ during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.]” (Duran, supra, at p. 1457; see § 186.22, subd. (e).) The statutorily enumerated predicate offenses include, among others, assault with a deadly weapon, robbery, unlawful homicide, shooting at an inhabited dwelling, and prohibited possession of a firearm. (§ 186.22, subd. (e).)

3. Additional Background

The amended complaint identifies the criminal street gang in this case as “Starz Up.” To satisfy the “criminal street gang” requirement of the gang enhancement, the prosecutor elicited testimony from an expert witness. Detective Kenny Shelton of the Sacramento County Sheriff’s Department testified as a gang expert on South Sacramento African-American criminal street gangs, including the Oak Park Bloods, Fourth Avenue Bloods (FAB), Ridezilla, and G-MOBB and their subsets—Stick Up Starz, Guttah Boyz, Fuzk[3] Gang, and Meadowview Bloods. Detective Shelton explained that historically gangs have self-segregated, aligning themselves by race and “neighborhood ties.” By contrast, hybrid gangs such as G-MOBB align for other reasons. In the case of G-MOBB and their subsets, the primary unifying force is their desire to acquire money and gain respect. They are not concerned about what color a person “claims” or where the person is from. The acronym “MOBB” stands for “money over broke bitches,” meaning “money over everything.” The “G” in G-MOBB stands for the gang’s original territory, the G-Parkway area.

Detective Shelton described G-MOBB as an umbrella organization with numerous subsets, including Stick Up Starz, Guttah Boyz, and Fuzk Gang. He characterized the G-MOBB subsets as synonymous with each other, explaining that it is common for a member of Stick Up Starz to also claim Guttah Boyz and/or Fuzk Gang. He also explained that while law enforcement differentiates between Stick Up Starz and G-MOBB, it does not differentiate between Stick Up Starz, Guttah Boyz, and Fuzk Gang. For law enforcement purposes, members of the Fuzk Gang and Guttah Boyz are considered to be members of Stick Up Starz.

Detective Shelton explained that members of G-MOBB and Stick Up Starz use common slogans to promote their gang (e.g., “money team,” “banked up”),[4] use similar hand signs, and claim the same territory. He further explained that, given the commonalities of Stick Up Starz and G-MOBB, “there’s probably . . . some cross-validation,” i.e., people who are a validated member of both gangs.

Detective Shelton described Stick Up Starz as “a next generation G-MOBB” whose name reflects both their primary criminal activity—robberies or “stickups”—and the fact that G-Parkway neighborhood was renamed Shining Star as part of a law enforcement effort to drive out G-MOBB. He explained that the Stick Up Starz gang was originally called Bad Ass Youngsters (BAY), and that BAY was formed after G-MOBB was established in the early 1990’s. Because members of BAY were not from the Bay Area like the founders or G-MOBB and did not live in the same neighborhood as members of G-MOBB, they could not claim G-MOBB. Instead, they claimed “an umbrella under G-MOBB.” When members of BAY were in their late teens and early 20’s, they renamed themselves Stick Up Starz. The name change was made to avoid detection by law enforcement and to reflect that members of BAY were no longer youngsters. According to Detective Shelton, BAY and Stick Up Starz are synonymous. Detective Shelton testified that he had spoken to no less than 10 members of Stick Up Starz who told him that their gang started up under G-MOBB, and that Stick Up Starz “associate[s]” with G-MOBB. He further testified that he could provide the names of at least two Stick Up Starz members who told him that Stick Up Starz “is part of or under G-MOBB.”

Detective Shelton explained that as Stick Up Starz expanded, additional subsets “branched off,” including Guttah Boyz. He described the G-MOBB subsets as “kind of a next generation G-MOBB;” they are comprised of younger individuals who “want something to call their own,” so they started their own subsets under the G-MOBB umbrella. He explained that Fuzk Gang is a more recently established subset of G-MOBB, and that its membership has become more common in recent years. The current rivals/enemies of G-MOBB and their subsets are the Oak Park Bloods and their subsets, including Gunz Up, FAB, and Ridezilla.

According to Detective Shelton, there are over 200 validated members of G-MOBB in Sacramento County and a little less than 200 validated members of Stick Up Starz. He said that neither Stick Up Starz nor G-MOBB have a structured hierarchy, although he noted that the original founders of G-MOBB have special status. He also said that a person’s “position of power” in the gang is based on the respect he acquires, which is earned by making money and committing crimes.

Detective Shelton explained that Stick Up Starz is also known as “Starz Up” or “SUS” for short and members of Stick Up Starz usually “claim” Starz Up or use the phrase to represent their gang. Their territory is the area around Meadowview, Center Parkway, and Mack Road, as well as the original G-MOBB territory around G-Parkway and Franklin Boulevard.[5] Stick Up Starz use stars as their symbol and a particular hand sign to disrespect their rival, Gunz Up, which is known as the Gunz Down hand sign. The primary activities of Stick Up Starz include robberies, assaults with a deadly weapon, shootings at inhabited dwellings, possession of firearms, and homicides. According to Detective Shelton, committing robberies and other crimes is a way for a gang member to generate income and respect. He further explained that during the commission of a crime, a gang member can represent their gang by yelling the name of their gang (e.g., Starz Up), and that, if the crime involves an assault on a person perceived to be in a rival gang, the gang member can represent their gang by yelling something disrespectful toward that rival gang member (e.g., “Gunz Down”).

Detective Shelton stated that G-MOBB and Stick Up Starz use social media and YouTube to promote their gang and disrespect rival gangs. He recounted an incident that occurred in 2012 in which members of G-MOBB and Stick Up Starz went into their rivals’ territory and made a rap video in retaliation for a rap video that had been made in Stick Up Starz’s territory. According to Detective Shelton, disrespecting a rival gang is another way for a gang member to generate respect within his gang. Detective Shelton noted that several homicides occurred shortly after the rap videos were made.

Detective Shelton testified regarding two predicate offenses. The first predicate offense involved two validated G-MOBB gang members. When these individuals encountered several rival Oak Park Blood gang members, a physical fight occurred during which one of the G-MOBB gang members pulled out a gun and fired several shots. Nobody was injured and both G-MOBB gang members were convicted of assault with a deadly weapon with the gang enhancement.

The second predicate offense involved a validated Stick Up Starz gang member and a Guttah Boyz gang member. When these individuals were at a party, they encountered members of a rival gang, FAB. After a fistfight occurred, the Stick Up Starz gang member retrieved a gun from his car and fired several shots into a crowd. Two young girls were shot; one survived and the other was killed. The Stick Up Starz gang member was convicted of murder with the gang enhancement while the Guttah Boyz member entered into a plea agreement in which he agreed to testify against the Stick Up Starz member.

With respect to defendant, Detective Shelton opined that he is a member of Stick Up Starz and/or Guttah Boyz.[6] Detective Shelton based his opinion on defendant’s consistent association with known G-MOBB and Stick Up Starz gang members, including Dossman and Dossman’s brothers (who are members of Stick Up Starz), his use of the gang’s symbols, signs and terminology, and his participation in gang-related activities and crimes. In forming his opinion, Detective Shelton considered that “Starz Up” was yelled during the robbery, and that defendant had prior police contacts in which he was found to be with a Stick Up Starz member in one contact and two members of BAY in another. In addition, Detective Shelton considered defendant’s tattoos, which include stars on his forearms and the word “team” under one of the stars as well as the phrase “star team” on the inside of one of his arms.[7] He also considered photographs of defendant displaying the hand signs for Guttah Boyz and Gunz Down, as well as communications defendant had with people while in jail which contained the gang terms SUS, FUZK, and “banked up.” In one communication, which appeared to come from defendant’s brother, a validated gang member of BAY who referred to himself as “Relly mobb Williams,” defendant was addressed by the Stick Up Starz acronym SUS. Detective Shelton also considered the fact that several letters/notes laden with gang references, including references to Stick Up Starz, Fuzk Gang, and G-MOBB, were found inside defendant’s jail cell, and that defendant was written up twice in jail for associating with G-MOBB members.

Detective Shelton also opined that Dossman was a member of Stick Up Starz and/or Guttah Boyz. Detective Shelton based his opinion on Dossman’s admission to being a member of Stick Up Starz, his associations with gang members, jail correspondence containing gang references, his participation in gang related activities and crimes, including an incident in which he and a validated member of G-MOBB robbed a female, and his jail write-ups for fights involving enemies of Stick Up Starz, including a fight in which he and a member of G-MOBB fought a member of FAB.

Based on a hypothetical tracking the evidence in this case, Detective Shelton opined that the robbery of Penacho was committed for the benefit of and in association with the gang Stick Up Starz, in part, because “Starz Up” was yelled during the robbery, and because of the gang rant posted on Penacho’s wife’s Facebook page, which promoted Starz Up and Fuzk Gang and disrespected several rivals/enemies of Stick Up Starz.

4. Analysis

Initially, defendant contends the evidence is insufficient to support the gang enhancement because no evidence was presented demonstrating that a criminal street gang named “Starz Up” existed. According to defendant, the prosecution’s gang expert talked about Stick Up Starz and other gangs but there is no evidence of a criminal street gang named Starz Up. We reject this argument. Here, the amended complaint, jury instructions, and the jury verdict form all identify the criminal street gang in this case as “Starz Up.” At trial, Detective Shelton testified as an expert on South Sacramento African-American criminal street gangs, including the gang known as Stick Up Starz. He testified about this gang’s general existence and origins as well as its territory, rivals/enemies, slogans, hand signs, symbols, and primary activities. He explained that Stick Up Starz is known as “Starz Up” or “SUS” for short. He further explained that members of Stick Up Starz use the phrase “Starz Up” to represent and promote their gang and “claim” Starz Up. Under the circumstances, there was sufficient evidence of the existence of a criminal street gang named Stick Up Starz, which is commonly referred to by the shorthand name Starz Up.

Defendant next contends the evidence is insufficient to support the gang enhancement because the evidence in the record does not establish a “pattern of criminal gang activity.” He argues that the evidence does not show an “associational or organizational connection” between Stick Up Starz and G-MOBB, as required by our Supreme Court’s decision in Prunty. According to defendant, since the first predicate offense was committed by members of the umbrella gang G-MOBB and the second was committed by members of the G-MOBB subsets Stick Up Starz and Guttah Boyz, there is insufficient evidence to support the gang enhancement because the prosecution failed to show a sufficient link between G-MOBB and Stick Up Starz. We disagree.

Prunty considered the proof necessary to establish the existence of a “criminal street gang” when the prosecution’s theory turns on the conduct of one or more gang subsets. (Prunty, supra, 62 Cal.4th at p. 67.) The defendant in Prunty identified as a Norteño and specifically claimed the Detroit Boulevard set of the Norteños as his own. (Id. at pp. 67-68.) He had shot at a perceived rival gang member at a Sacramento shopping center while uttering gang slurs including the word “Norte.” (Ibid.) The prosecution sought to prove he committed the charged crimes to benefit the Sacramento-area Norteño street gang. (Id. at p. 67.) To establish the gang enhancement, the prosecution’s gang expert testified about the Sacramento-area Norteño gang’s general existence and origins, its use of shared signs, symbols, colors, and names, its primary activities, and the predicate activities of two local neighborhood subsets, the Varrio Gardenland Norteños and the Varrio Centro Norteños. (Id. at pp. 67, 69.) The gang expert, however, did not provide any specific testimony connecting the subsets’ activities to one another or to the Sacramento Norteño gang in general. (Id. at p. 67.)

In reversing the gang enhancement for insufficient evidence, the Supreme Court found the prosecution failed to show a connection among the subsets it alleged comprised the criminal street gang. (Prunty, supra, 62 Cal.4th at p. 68; § 186.22, subd. (b).) “[W]here the prosecution’s case positing the existence of a single ‘criminal street gang’ for purposes of section 186.22[, subdivision] (f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets.” (Id. at p. 71.)

The court explained that the necessary “connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together.” (Prunty, supra, 62 Cal.4th at p. 71.) Evidence that “various subset members exhibit behavior showing their self-identification with a larger group” may also be sufficient to allow those subsets to be treated as a single organization. (Ibid.) However the “prosecution chooses to demonstrate that a relationship exists,” (id. at p. 72), the evidence must show that “the gang the defendant sought to benefit, the individuals that the prosecution claims constitute an ‘organization, association, or group,’ and the group whose actions the prosecution alleges satisfy the ‘primary activities’ and predicate offense requirements of section 186.22[, subdivision] (f), [are] one and the same.” (Id. at pp. 75-76.)

Prunty provided several examples demonstrating how to establish the necessary connection between various subsets and an alleged larger gang for purposes of the gang enhancement. (Prunty, supra, 62 Cal.4th at p. 77.) For more formal groups, evidence showing shared bylaws or organizational arrangements, shot callers who answer to a higher authority, or that the subsets routinely protect the same turf may prove the connection. (Ibid.)

In situations where a group’s structure is more informal, evidence showing various subsets collaborate to accomplish shared goals, strategize to carry out activities, or profess or exhibit loyalty to one another would be sufficient to imply the existence of a genuinely shared venture. (Prunty, supra, 62 Cal.4th at pp. 78-79.) Evidence that gang subsets acknowledge one another as part of the same organization, coupled with evidence that the organization tends to operate in decentralized fashion in a relevant geographic area may also be sufficient. (Id. at p. 79.)

Applying this framework to the evidence presented in Prunty, the Supreme Court first found that the prosecution sufficiently proved that the Sacramento-area Norteños engaged in illicit primary activities since the gang expert had testified that “ ‘the Norteños’ in the area engage in various criminal practices, including homicide, assault, and firearms offenses.” (Prunty, supra, 62 Cal.4th at p. 82.) What the Supreme Court found lacking, however, was evidence regarding the necessary predicate offenses. (Ibid.) While the gang expert in Prunty referred to two offenses involving three alleged Norteño subsets, which he characterized as Norteños, “he otherwise provided no evidence that could connect these groups to one another, or to an overarching Sacramento-area Norteño criminal street gang.” (Ibid.)

We find the evidence in this case different than the evidence—or lack of evidence—proffered in Prunty. The totality of the evidence presented shows that the gang members who committed the predicate crimes were associated with each other. As the Supreme Court emphasized in Prunty, “[t]he key is for the prosecution to present evidence supporting a fact finder’s reasonable conclusion that multiple subsets are acting as a single ‘organization, association, or group.’ ” (Prunty, supra, 62 Cal.4th at p. 80.) We find the prosecution satisfied that burden here. There is evidence in the record that would allow a reasonable jury to conclude that there is an associational connection between G-MOBB and Stick Up Starz. Viewing the record in the light most favorable to the judgment, the record discloses that Stick Up Starz is comprised of a younger generation of individuals that started up under G-MOBB, and that members of Stick Up Starz claim their gang associates with G-MOBB and is part of or “under” G-MOBB. In addition, members of G-MOBB and Stick Up Starz have the shared primary goals of acquiring money and respect, they use common slogans to promote their gang, use similar hand signs, claim and protect the same territory, share common rivals/enemies, hang out together, and work together to commit crimes and retaliate against rival/enemy gangs. The evidence in this case stands in contrast to the evidence in Prunty, where the gang expert simply “described the subsets by name, characterized them as Norteños, and testified as to the alleged predicate offenses.” (Prunty, supra, at p. 83.)[8]

B. Alleged Instructional Error

Defendant contends the trial court prejudicially erred in failing to sua sponte instruct the jury in accordance with the principles set forth in Prunty. We disagree.

“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.” ’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) Among other things, that sua sponte duty includes instructing the jury regarding the elements of special allegations like the section 186.22, subdivision (b) enhancements alleged here. (People v. Mil (2012) 53 Cal.4th 400, 409.) That duty is generally satisfied by providing an instruction that tracks the language of the statute defining the enhancement at issue, especially if “the jury would have no difficulty in understanding the statute without guidance . . . .” (People v. Poggi (1988) 45 Cal.3d 306, 327.) When “a phrase ‘is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.’ ” (People v. Rowland (1992) 4 Cal.4th 238, 270-271.)

In Prunty, our Supreme Court interpreted the phrase “organization, association, or group . . . , whether formal or informal,” as used in section 186.22, subdivision (f) to “contemplate some kind of relationship, or degree of togetherness, uniting those individuals.” (Prunty, supra, 62 Cal.4th at p. 72.) The court’s decision was based on the common understanding of those terms, as shown by its reliance on dictionary definitions to support its reasoning. (Id. at pp. 72-73.) The court explained that it was merely interpreting the words of section 186.22, subdivision (f) and its interpretation did not add “ ‘an element to the statute that the Legislature did not put there.’ ” (Prunty, supra, at p. 76, fn. 4.)

Defendant offers no explanation as to how the trial court could have sua sponte instructed the jury on the principles of Prunty, as that case was not issued until almost six months after the jury rendered its verdict. The jury in this case was instructed pursuant to CALCRIM No. 1401, which tracks the language of section 186.22. (See CALCRIM No. 1401.) Accordingly, because the trial court instructed the jury on the relevant principles of law, defendant’s instructional error claim fails.

III. DISPOSITION

The judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

ROBIE, J.