R.
Filed
2/24/12 In re Alex R. CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re ALEX R., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
ALEX R.,
Defendant and
Appellant.
F062678
(Super.
Ct. No. 10JQ0073A)
APPEAL from
a judgment of the Superior Court of
Grace Lidia
Suarez, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Following a
contested jurisdiction hearing, the juvenile
court found true allegations set forth in a juvenile wardship petition that
appellant Alex R. committed (1) first degree burglary, a serious and
violent felony (Pen. Code, §§ 459, 1192.7, subd. (c), 667.5, subd. (c))
(b)(1)) (count 1), (2) receiving stolen
property (§ 496, subd. (a)) for the benefit of a criminal street gang (§
186.22, subd. (b)(1)) (count 2), (3) participation in a criminal street gang, a
serious felony (§§ 186.22, subd. (a), 1192.7, subd. (c)) (count 3), and (4)
grand theft of a firearm (§ 487, subd. (d)(2)) (count 4).
five other counts alleged in the petition pursuant to Welfare and Institutions
Code section 701.1. Following the
subsequent disposition hearing, the court continued Alex as a ward of the
juvenile court and ordered him to serve not less than 180 days in juvenile
hall. The court calculated Alex’s
maximum term of confinement as 18 years and four months.
On appeal,
Alex contends (1) the juvenile court abused its discretion when it denied his
request for a free transcript of the proceedings, (2) there was insufficient
evidence to support the finding that he received stolen property, (3) his
maximum term of confinement violated section 654, and (4) there was
insufficient evidence to support the true finding on the allegation that counts
1 and 2 were committed for the benefit of a criminal street gang. Finding no merit to Alex’s contentions, we
affirm.
FACTS
A series of
burglaries occurred in Corcoran on or about March 31, 2011.
her car, which had its window broken.
Savannah Ybarra’s car window was broken and her laptop stolen. The driver’s side window of John Price
Jones’s sports utility vehicle was broken and his iPod stolen.
Between one and two a.m. on March
31, Marina Lefridge was talking on her cell phone while sitting in her car,
which was parked on the street in front of her house. Seeing some shadows, she did not get out of
the car. Two young men came up to the
driver’s side of the car and tried to open the door. Lefridge slammed the door shut; she was
scared and could not figure out how to lock the doors, as the car was new. When the young men attempted to open the
driver’s side door again, Lefridge pulled it shut. Lefridge believed the young men were puzzled
because the door kept closing; she thought they did not realize someone was in
the car, as the night was dark, there were no lights on inside the car, and the
windows were frosted up. When the two
tried to open the door a third time, Lefridge pulled the door shut. By this time, Lefridge was able to lock the
doors. The group, which Lefridge thought
totaled four to six young men between the ages of 16 and 20 who were wearing
dark clothing, began to walk away from the car.
As the group left, one young man peered into the car.
Lefridge identified three of the
juveniles being adjudicated at the hearing as being present that night, namely
Nathan, Dominic, and Alex. Lefridge
believed Nathan was the first person who came up to her driver’s side window,
and Alex tried to open the door.
Lefridge had seen the same juveniles she identified in court watching
her and her friends play basketball at the Corcoran YMCA the previous evening.
At about 3:40 a.m. on March 31,
Jason Proctor went into his attached garage and found all of his garage
cabinets open, the garage door up, and his 2009 Chevy four-door, four-wheel
drive, pickup truck that had been parked in the driveway gone. Also missing was a set of Corvette keys that
were hanging in the garage by the door that led into the house, as well as keys
to the truck. A .223 hunting rifle and a
box of .223 ammunition were in the back of the truck. As Proctor was on the phone to the police to
report the theft, he was told that police had found his truck in front of
another house in Corcoran. When he got
to the truck, he noticed his garage door opener was missing. Police later returned to him the two sets of
car keys, the garage door opener, ammunition, rifle and some shotgun shells
that had been in his garage.
At about 11
p.m. on March 31, Corcoran Police Officer Laura Duran responded to a call that
approximately seven to eight male juveniles wearing dark clothing were looking
into vehicles in the 1300 block of Hall Avenue in Corcoran. One of the juveniles was described as wearing
a black and white checkered jacket and another as possibly carrying a black
stick. Officer Duran checked the area,
but could not locate the subjects. A
citizen advised Officer Velasco, who also responded to the call, that he observed
seven to eight subjects wearing red shirts and running southbound. Sometime after 2:30 a.m., Officer Duran was
checking the area where the initial call came from when she saw a “dark
subject” with a medium build, wearing dark clothing and a beanie cap, leaving a
residence at 1312 Hall Avenue. As he
opened the door to the house, Officer Duran saw several thin-built males
walking back and forth inside the front room.
Officer Duran later was dispatched to the location of a white Chevy work
truck, which was less than a quarter of a mile from the residence at 1312 Hall
Avenue.
Corcoran
Police Officer Pedro Castro also responded to 1312 Hall Avenue on March 31,
along with Corcoran Police Detective Eric Essman. Detective Essman knocked on the front door
while Officer Castro stood at the rear of the house. There was no immediate answer to the knock;
the officers heard a lot of movement inside the house. After about five minutes, Angie R. answered
the door. The officers told her they
needed to determine what males were in the residence and asked to speak to
Angie’s two juvenile sons, as well as any other subjects in the home. Angie said her two sons were home, but denied
that anyone else was there, and consented to a search of the house.
Angie’s two
sons, Nathan and Henry, were in the living room where police found a laptop computer,
a .223 caliber rifle inside a rifle case, a bag of .22 caliber ammunition, and
sticks or bats. Officer Castro located
Alex and another male juvenile, Daniel, hiding in a utility room, where police
found a box of .223 caliber rounds, along with some dark sweatshirts and three
to four beanie caps. An iPod was
discovered inside Alex’s pants pocket along with some cash.
Officer Castro also found two other
male juveniles, Dominic and Israel, in a bedroom that Angie claimed was hers;
Dominic was asleep on the bed and Israel was hiding under a dresser. In the bedroom, police found two sets of car
keys on the floor, one for a Chevy and the other for a Corvette, and an iPod
under the mattress. Dominic admitted he
stole the iPod that was located under the mattress from a vehicle. Nathan, who was wearing a black and white
checkered shirt-type jacket, admitted to police he stole all of the items
located in the living room, but refused to give the details.
Police determined that Proctor was
the registered owner of the rifle, which he later identified as his. The laptop was returned to its owner, Ybarra,
by matching the serial number and laptop box she provided. Jones identified the 80-gigabyte iPod that
was found in Alex’s pocket as his by the serial number which was on the
original box he provided. Madrid
identified an iPod Touch as hers based on its appearance, as it had the same
white silicon case as hers and her e-mail messages were stored on the device.
Deputy Probation Officer Damon
Parryman, who was assigned to the Kings County Gang Task Force, testified as an
expert on gangs. Parryman was familiar
with the Nortenos, a criminal street gang with approximately 2,500 members in
Kings County. According to Parryman, the
Nortenos engage in various patterns of criminal activity, including shooting at
inhabited dwellings, shooting from cars, assaults, robbery, burglaries, and
various degrees of theft. Parryman was
aware of two Nortenos gang members in Kings County who had been convicted of
violating sections 246 and 186.22, subdivision (a).
In Parryman’s opinion, all of the
juveniles at the hearing were part of the Nortenos street gang in Kings County,
and the charges being tried were the type of activities that would further and
benefit the gang. Specifically, Parryman
testified that in his opinion, the following acts would further and benefit the
gang’s interests: (1) the burglary of Proctor, including taking his vehicle,
weapon, ammunition and car keys; (2) receiving stolen property, including
cell phones, rifles, car keys, ammunition and a laptop; (3) possessing
items that would be used as burglary tools; and (4) stealing vehicles. Parryman explained that in Kings County,
young Nortenos steal vehicles to get around town, as they do not own their own
vehicles and do not want to use their parents’ cars; they know how long it will
take for a vehicle to be reported stolen and the police to enter the vehicle
into the system. Home burglaries help
the Nortenos because stolen property can be sold and the money used to purchase
illegal firearms or other forms of contraband.
Stealing a firearm helps a Norteno by giving the person who stole it
more credit in the gang and increases the gang’s armory for their ongoing battles
with their arch enemy, the Surenos, with whom the Nortenos have had numerous
gang clashes in which shots were fired.
Parryman had personal contact with
Alex, who is from Corcoran, when Alex came in to complete his court-ordered
gang registration. Between October 2009
and March 31, Alex had 13 contacts with law enforcement; during each contact,
he was with other gang members or associates.
Parryman opined that Alex is in fact a Norteno gang member based on the
court-ordered gang registration, Parryman’s personal contacts with Alex, and
Alex’s stated desire to not be bunked with southerners when booked into
juvenile hall. Parryman opined the other
juveniles who were in the home that night, Israel, Dominic, Daniel, and Nathan,
were also Norteno gang members. Parryman
testified the Nortenos have deemed the Corcoran YMCA as their territory and the
YMCA is a hangout for street gangs in Corcoran.
Around December 2010, Officer
Castro contacted Alex when responding to a report of a fight. Alex admitted to Officer Castro that he was a
Norteno gang member. Other juveniles
found in the home, Israel and Dominic, had also admitted gang membership to
Officer Castro in the past.
I.
Request for a Free Transcript
Alex
contends the juvenile court abused its discretion when it denied his request for
a free reporter’s transcript so he could file a motion for a new trial. We disagree.
A. Trial Proceedings
The jurisdictional hearing
commenced on May 10. After the
prosecution presented its case-in-chief, Alex’s trial attorney asked the court
to consider a motion to dismiss some of the charges for lack of evidence, in
which the attorneys for the other juveniles joined. The court continued the hearing to May
12. On May 12, the court heard and ruled
on the motions to dismiss under Welfare and Institutions Code section
701.1. None of the juveniles presented
any evidence in defense. The court then
heard closing arguments and made its findings.
A disposition hearing was set for May 31.
On May 23, Alex’s attorney filed a
written request “for a full and complete copy of the transcripts of all
proceedings in the within action, such transcripts being a sine non qua [sic] for the preparation and filing of defendant’s
motion for new trial.” In the attached
memorandum of points and authorities, Alex’s attorney argued that Alex was
entitled to a free transcript because he was indigent and denial of a
transcript would violate his right to effective counsel in preparation of a
motion for a new trial.
On May 27, the court filed a
written order denying the transcript request without prejudice to Alex’s right
to renew the request in a timely and appropriate manner. In its order, the court stated that Alex
failed to specifically identify the proceedings for which he was seeking
transcripts, noting the only transcript then contained in the court’s file was
from the May 10 contested jurisdiction hearing.
The court explained that under Welfare and Institutions Code section
800, subdivision (d), an appellant who is unable to afford counsel is entitled
to a free copy of the transcript in any appeal, but there was no claim that an
appeal had been, or would be, filed. The
court noted that while there were rehearing procedures and procedures for
petitions for modification that could be pursued, citing California Rules of Court,
rules 5.570 and 5.542, defense counsel had not stated an intention to proceed
under either of these vehicles.
Moreover, the court stated it had only received the request that day and
it would be impossible to have a copy of the May 10 reporter’s transcript
prepared and forwarded by May 27, which it stated was the requested date for
receipt of the transcript.
At the May 31 disposition hearing,
the court first revisited the matter of Alex’s request for a reporter’s
transcript, noting the receipt of Alex’s attorney’s written request and its
written order denying it “for several reasons, not the least of which you
didn’t provide me with any indication as to what you felt you needed the
transcript for other than the fact to make a motion for a new trial.” The court further explained that the
transcript of the May 10 hearing was filed on May 11, and Alex’s attorney did
not indicate in his declaration that he had reviewed the transcript, which may
have given him the information he needed.
In response, Alex’s attorney moved
for a continuance of the disposition hearing so that he could “file a new
motion to get a transcript,” which he needed to “file for a new trial.” When Alex’s attorney started to say what he
was specifically interested in, the court cut him off, stating that “what you
tell me you’re interested in today should have been contained in your
declaration.” The court noted that
Alex’s attorney had participated in every aspect of the trial, objected at every
opportunity and “then some,” and should have been aware of any grounds for a
new trial motion. The court further
noted the attorney’s declaration did not indicate he had looked at Alex’s file,
because if he had, he would have found the first half of the transcript which
he could have reviewed.
When the court asked Alex’s
attorney if he wanted to make an oral motion for a new trial, Alex’s attorney
responded that he did, but he wanted a continuance so he could file the motion
and better prepare for disposition.
Alex’s attorney stated there were some developments relating to Alex
that may not relate to the other juveniles, namely new charges had been filed
against Alex and the attorney wanted to determine if those charges should have
been joined with this case. Alex’s
attorney further stated he did not have a chance to review the disposition and
had some questions, including whether the charges found true qualified as
strikes.
The prosecutor opposed the request,
arguing none of the statements was a ground for a new trial. Alex’s attorney asserted that grounds for a
new trial always include a violation of due process, which he thought was
present here because the prosecutor raised an aiding and abetting theory for
the first time in closing arguments, which theory had not been proven. After ascertaining that there was nothing
else Alex’s attorney wanted to add, the court denied the motion for a
continuance to file a motion for a new trial.
Alex’s attorney then moved for a continuance of the disposition hearing
so he could more fully review the probation report. The court denied the motion.
B. Analysis
Alex asserts the court abused its
discretion in denying his request for a transcript because (1) the court was
wrong when it stated in its written ruling that he was not entitled to make a
motion for new trial because such a motion does not exist in juvenile law, and
(2) the denial was capricious, because the transcript of the first day of the
hearing had been prepared and filed, and preparation of the second day’s
transcript would have caused only minimal delay.
An indigent criminal defendant must
be provided a free transcript of prior proceedings where the transcript is
necessary for an effective defense or appeal.
(Britt v. North Carolina
(1971) 404 U.S. 226, 227; People v. Hosner (1975) 15 Cal.3d 60, 64-65 (Hosner).) A defendant in a retrial is presumed to have
a need for a full transcript of the prior proceedings that resulted in a
mistrial, since the transcript of the first trial would contain testimony
pertaining to the same charges at issue in the retrial. (Hosner, supra, 15 Cal.3d at p. 66; People
v. Markley (2006) 138 Cal.App.4th 230, 241 (Markley).)
Such a presumption, however, does not apply to an indigent defendant’s
request for the trial transcript in order to prepare a motion for new
trial. “An indigent defendant ‘is not
entitled, as a matter of absolute right, to a full reporter’s transcript of his
trial proceedings for his lawyer’s use in connection with a motion for a new
trial; but, since a motion for a new trial is an integral part of the trial
itself, a full reporter’s transcript must be furnished to all defendants . . .
whenever necessary for effective representation by counsel at that important
stage of the proceeding.’
[Citation.] There are no
mechanical tests for deciding when the denial of transcripts for a motion for
new trial is so arbitrary as to violate due process or to constitute a denial
of effective representation. Each case
must be considered on its own peculiar facts and circumstances.” (People
v. Bizieff (1991) 226 Cal.App.3d 1689, 1700 (
(1969) 1 Cal.App.3d 78, 83, italics added.)
In determining the need for a trial transcript, two relevant factors to
consider are the value of the transcript to the defendant in connection with
the proceeding for which it is sought, and the availability of alternatives
that would fulfill the same function as a transcript. (Hosner, supra, 15 Cal.3d at pp.
64-65.) The court may deny a motion for
free transcripts to prepare a new trial motion where the defendant fails to
show a particularized need for the transcripts.
(Bizieff, supra, 226 Cal.App.3d at p. 1702.)
Here, Alex requested a transcript of the proceedings so he could
prepare a motion for a new trial. As
Alex points out, while such a motion is not authorized in juvenile delinquency
proceedings, it is tantamount to motions for reconsideration or modification
under Welfare and Institutions Code section 775 or 778. (In re
Kenneth S. (2005) 133 Cal.App.4th 54, 62; In re Steven S. (1979) 91 Cal.App.3d 604, 606-607.) Alex asserts the court should have recognized
he was bringing his request for a reporter’s transcript so he could bring one
of these motions and erred in denying the request on the basis that he sought a
motion for a new trial instead.
Alex ignores, however, the requirement that he show a particularized
need for the transcripts before he is entitled to them. Alex provided no explanation below, and
provides none on appeal, as to why he needed the transcripts other than to
generally state that he needed them to move for a new trial or
modification. The court thus had
discretion to deny Alex’s attorney’s request, as it did, because he failed to
demonstrate any particularized need for them.
Moreover, as the juvenile court pointed out, a partial transcript was
available in the court file. The record
does not indicate why his attorney could not have reviewed that transcript; if
the transcript was inadequate to address the issues he wanted to raise in a
modification motion, he should have specified in his request what additional
transcripts were needed and why. (See
for the transcripts, that the May 12 transcript could have been completed with
minimal delay did not compel the juvenile court to grant the request and it did
not abuse its discretion in denying it.
II.
Receiving Stolen Property
The wardship petition alleged in
count 2 that Alex was in receipt of stolen property, namely a “cell phone,
rifle, car keys, ammunition and a laptop computer.” As the evidence at the hearing showed, the
rifle, car keys and ammunition were taken during the burglary alleged in count
1. At disposition, the juvenile court
found that count 2 was “not 654” to the burglary in count 1 because “the
possession of the property in that count was different and separate from the
property taken from the burglary in Count 1, specifically, one of them included
a laptop which was taken in a different theft offense.”
Alex contends the true finding on
count 2 for receiving stolen property must be reversed because there was
insufficient evidence to prove that a laptop or cell phone was actually
stolen. Our duty on a challenge to the
sufficiency of the evidence is to review the whole record in the light most
favorable to the judgment for credible, reasonable, and substantial evidence of
solid value that could have enabled any rational trier of fact to have found
the defendant guilty beyond a reasonable doubt.
(Jackson v. Virginia (1979)
443 U.S. 307, 318; People v. Prince
(2007) 40 Cal.4th 1179, 1251 (Prince).) That standard applies to circumstantial and
direct evidence alike and requires us to presume in support of the judgment the
existence of every fact a reasonable trier of fact reasonably could have
deduced from the evidence. (
Alex is correct that there was no
evidence that a cell phone was stolen.
Instead, the evidence showed that Jones’s iPod and Madrid’s iPod Touch
were both stolen and recovered, the first from Alex’s pocket and the second
from under the mattress in one of the bedrooms.
The evidence did show, however, that the laptop recovered from the home
was stolen. Ybarra testified her laptop
was stolen and Corcoran police later returned it to her; she was able to
identify the laptop by matching the serial number and box, both of which she
had in her possession. Officer Castro
testified that a laptop computer was found in the home next to a mattress
inside the living room. A Community Service
Evidence Technician for the Corcoran Police Department, Jimmy Roark, testified
that the laptop computer found at the home was returned to the “rightful owner”
when the owner gave the serial number to the officers in the investigation.
Based on this evidence, the
juvenile court could find, as it did, that Ybarra’s laptop was the same laptop
found in the home, and therefore the recovered laptop was stolen. While Roark did not identify the owner by
name, a reasonable inference can be drawn that the owner was in fact Ybarra,
who testified it was stolen, as she subsequently received it from the Corcoran
police by producing the original packaging and serial number. The insufficiency of the evidence argument
here simply asks us to reweigh the facts.
That we cannot do. (
331-333.)
III.
Section 654
When a juvenile court sustains
criminal violations resulting in an order of wardship (Welf. & Inst. Code,
§ 602) and removes a youth from the physical custody of his or her parent or
custodian, it must specify the MTPC, i.e., the maximum term of imprisonment an
adult would receive for the same offense(s).
(Welf. & Inst. Code, § 726.)
Welfare and Institutions Code section 726 permits the juvenile court, in
its discretion, to aggregate terms, both on the basis of multiple counts, and
on previously sustained wardship petitions in computing the MTPC. (In re
David H. (2003) 106 Cal.App.4th 1131, 1133 (David H.)) When aggregating
multiple counts and previously sustained petitions, the maximum confinement
term is calculated by adding the upper term for the principal offense, plus
one-third of the middle term for each of the remaining subordinate felonies and
one-third of the maximum term for the remaining subordinate misdemeanors. (Welf. & Inst. Code, § 726; § 1170.1,
subd. (a); In re Deborah C. (1981) 30
Cal.3d 125, 140; In re Eric J. (1979)
25 Cal.3d 522, 536-538.)
Here, the juvenile court determined
the MTPC to be 18 years and four months calculated as follows: (1) count 1 –
the six-year mid-term for the burglary plus 10 years as it qualified as a
violent felony under section 667.5, subdivision (c); (2) count 2 – a
consecutive eight months for the receipt of stolen property plus one year for
the section 186.22, subdivision (b)(1) gang enhancement; and (3) count 4 – a
consecutive eight months. The court
imposed and stayed a two-year term for the substantive gang offense in count 3
pursuant to section 654. The court found
that counts 2 and 4 should not be stayed pursuant to section 654 because: (1) count 2 involved possession of property
that was different from the property taken in the burglary, namely the laptop;
and (2) the stolen firearm in count 4 was taken from the truck which was parked
in the driveway of Proctor’s house, not in his garage.
Alex contends he could not be
punished for both the burglary and possessing items stolen in the course of the
burglary. He asserts that since the
burglary, theft of the truck and rifle, and possession of the car keys and
ammunition were incidental to one objective, theft, and he harbored a single
intent, to steal, the court was required to stay his terms on counts 2 and 4
pursuant to section 654.
Section 654 precludes multiple
punishment for a single act or omission, or an indivisible course of
conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) The section is applicable in juvenile court
proceedings in which the court elects to aggregate the periods of physical
confinement on multiple counts or multiple petitions pursuant to Welfare and
Institutions Code section 726. (
(1983) 139 Cal.App.3d 973, 978.)
“Whether a course of conduct is
divisible and therefore gives rise to more than one act within the meaning of
section 654 depends on the ‘intent and objective’ of the actor. [Citation.]
If all of the offenses are incident to one objective, the court may
punish the defendant for any one of the offenses, but not more than one. [Citation.]
If, however, the defendant had multiple or simultaneous objectives,
independent of and not merely incidental to each other, the defendant may be
punished for each violation committed in pursuit of each objective even though
the violations share common acts or were parts of an otherwise indivisible
course of conduct.” (
Cal.App.4th 263, 267-268; People v.
Martin (2005) 133 Cal.App.4th 776, 781 (Martin).)
In addition, “‘a course of conduct
divisible in time, although directed to one objective, may give rise to
multiple violations and punishment.
[Citations.]’ [Citations.] This is particularly so where the offenses
are temporally separated in such a way as to afford the defendant opportunity
to reflect and to renew his or her intent before committing the next one,
thereby aggravating the violation of public security or policy already
undertaken.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) “Thus, a finding that multiple offenses were
aimed at one intent and objective does not necessarily mean that they
constituted ‘one indivisible course of conduct’ for purposes of section
654. If the offenses were committed on
different occasions, they may be punished separately.” (People
v. Kwok (1998) 63 Cal.App.4th 1236, 1253.)
“Whether multiple convictions are
part of an indivisible transaction is primarily a question of fact. [Citation.]
We review such a finding under the substantial evidence test [citation];
we consider the evidence in the light most favorable to respondent and presume
the existence of every fact the trier could reasonably deduce from the evidence.” (Martin,
supra, 133 Cal.App.4th at p.
781.) Where, as in this case, the trial
court imposes consecutive sentences, it impliedly finds the defendant
entertained multiple criminal objectives and we must determine whether such a
finding is supported by substantial evidence.
(Gaio, supra, 81 Cal.App.4th at p. 935.)
We begin with the term imposed on
count 4. Alex contends consecutive terms
were improperly imposed for the burglary of Proctor’s home in count 1 and the
theft of his firearm in count 4, since both offenses occurred on the same
night, he and the other juveniles entered the garage with the intent to steal,
they stole the keys to Proctor’s truck from the garage, and used the keys to
steal the truck and burglarize it.
Separate entries, even if conducted
in the course of the same crime spree at the same location, are separately
punishable. (See, e.g.
443, 448-449 [consecutive sentences permissible where defendant broke into a
car dealership, stole supplies from the office and stole electronic equipment
and other interior items from various motor homes and vehicles].) Here, Alex committed separate entries into
Proctor’s garage and his truck, with separate intents even though the offenses
presumably were committed within minutes of each other. While Alex and the other juveniles could have
merely burglarized the truck, which was parked in the driveway in front of the
garage, they decided to go into the garage, after gaining access to it either
by taking the garage door opener from the truck or some other means, rummaged
through the garage cabinets, and took shotgun shells that were stored there as
well as the keys to the Corvette and the truck.
At that point, they had completed the entry required for the burglary
and could have departed with the stolen property they had taken from the
garage. Instead, they went back to the
truck and drove away. At some point, the
juveniles removed the rifle from the truck and took it to the home on Hall
Avenue. Even though the two offenses
shared common acts or may seem to be part of an otherwise indivisible course of
conduct, the offenses were temporally separated as to afford Alex the
opportunity to reflect and form the independent intent to commit burglary of
the garage and theft of the rifle.
Section 654 also does not prohibit
multiple punishment on count 2, which alleged receipt of property stolen during
the burglary, namely the car keys and ammunition, as well as the theft of the
rifle. This is because count 2 also was based
on the receipt of property not taken from Proctor, namely the laptop computer
taken from Ybarra. Since the laptop was
from a separate crime that occurred in a different location and time, section
654 does not prohibit multiple punishment for it.
IV.
The Gang Enhancement
Alex argues the evidence was
insufficient to support the section 186.22, subdivision (b) findings. We are not persuaded.
Section 186.22, subdivision (b)(1)
“requires that the crime be committed (1) for the benefit of, (2) at the
direction of, or (3) in
v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales).) The trier of fact
reasonably can infer the requisite association from the fact the defendant
committed the charged crimes in association with fellow gang members. (Ibid.) The “specific intent” prong of the statute
does not require a specific intent to promote, further, or assist in any
criminal conduct other than the criminal conduct constituting the crime
currently being committed. “By its plain
language, the statute requires a showing of specific intent to promote,
further, or assist in ‘any criminal
conduct by gang members,’ rather than other
criminal conduct.” (People v. Romero (2006) 140 Cal.App.4th 15, 19.) “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 (2006)
145 Cal.App.4th 310, 322; see also Morales,
supra, 112 Cal.App.4th at p.
1198.) “[S]pecific intent to
supra, 112 Cal.App.4th at p. 1198.)
“[T]he typical close case is one in
which one gang member, acting alone, commits a crime.” (Morales,
supra, 112 Cal.App.4th at p.
1198.) This is not a close case. At a minimum, there were five gang members,
including Alex, involved in a course of criminal activity that night, including
the burglary of Proctor’s house, various vehicle break-ins, and the receipt of
stolen property. The juvenile court
reasonably could infer that Alex, in joining in this activity with other gang
members, acted “in association with any criminal street gang” and did so “with
the specific intent to promote, further, or assist in any criminal conduct by
gang members.” (§ 186.22, subd. (b)(1).)
Alex’s reliance on
843 is misplaced. In
were stopped in a stolen truck with an unregistered firearm under the driver’s
seat. The defendant was convicted of
four crimes, which the jury found were committed for the benefit of, at the
direction of, or in association with a criminal street gang, and with the
specific intent to promote, further, or assist in criminal conduct by gang
members. (Ramon, supra, 175
Cal.App.4th at p. 846.) A gang expert
testified that because the defendants were gang members and they were stopped
in the heart of gang territory, the circumstances of the present crimes would
benefit their gang. (
insufficient to support the finding that the defendant committed the crimes
“with the specific intent to promote, further, or assist in any criminal conduct
by gang members.” (Ramon, supra, 175
Cal.App.4th at p. 853.) We
explained: “The facts on which [the
expert] based his testimony were insufficient to permit him to construct an
opinion about Ramon’s specific intent in this case. His opinion, therefore, cannot constitute
substantial evidence to support the jury’s finding on the gang
enhancement.” (Ramon, supra, 175
Cal.App.4th at p. 852.)
In the present case, however, once
the court had evidence to convince it that Alex and the other juveniles at the
hearing were gang members and that the crimes the gang commits include
burglaries and various thefts, including stealing cars, it might well have
found the section 186.22, subd. (b)(1) allegations to be true without any
further expert testimony. The court
hardly needed Parryman to tell it his opinion about whether the crimes of
burglary and receipt of stolen property were committed for the benefit of the
gang. Moreover, he was never asked
whether Alex or the other juveniles acted “with the specific intent to promote,
further, or assist in any criminal conduct by gang members” (§ 186.22,
subd. (b)(1).) Substantial evidence
supports the court’s section 186.22, subdivision (b)(1) findings.
The judgment
is affirmed.
_____________________
Gomes, Acting P.J.
WE CONCUR:
_____________________
Poochigian, J.
_____________________
Detjen, J.
the Penal Code.
jurisdiction hearing, Dominic M., Daniel G., Nathan R., and Israel F. (Nathan R. and Alex R. have different last
names.)
