In re D.M.

Filed 2/7/08 In re D.M. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles Q. Clay, III, judge. Affirmed.

Judith Vitek, under appointment of 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, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Nancy G. James, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Appellant, D.M, a juvenile at the time of the offenses, challenges the sufficiency of the evidence of a gang allegation and contends that a consecutive sentence must be stayed under Penal Code section 654.^[1] We affirm.

STATEMENT OF THE CASE

A Welfare and Institutions Code section 602 petition charged appellant with the following counts: (1) evading an officer with willful disregard, in violation of Vehicle Code section 2800.2, subdivision (a); (2) possession of marijuana for sale, in violation of Health and Safety Code section 11359; (3) leaving the scene of an accident, in violation of Vehicle Code section 20001, subdivision (a); (4) resisting, obstructing, delaying a peace officer, in violation of section 148, subdivision (a)(1); and (5) hit and run driving, in violation of Vehicle Code section 20002, subdivision (a). As to counts one and two, it was alleged pursuant to section 186.22, subdivision (b)(1)(A), that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members.

Following the testimony from three police officers, appellant, and appellants mother, and some stipulated testimony, the juvenile court found the allegations to be true; sustained the petition in its entirety; declared counts one, two and three to be felonies; and imposed consecutive sentences on all three counts. Appellant, previously declared a ward of the court, was ordered placed in the Camp Community Placement program on a long-term basis. Based on the current petition and prior petitions, the juvenile court determined that the maximum period of confinement was 11 years and six months and gave appellant 518 days of predisposition credits.^[2] Appellant filed a notice of appeal.

STATEMENT OF FACTS

On December 9, 2006, Los Angeles police officer, Asia Hodge, was in uniform and in a marked police automobile. While her partner was driving, she observed two cars in proximity with each other. Appellant was the driver of one of the vehicles, with two passengers in the backseat. A man standing outside the other car talking to people within the car had a handgun protruding from his front pocket. When the police car made a u-turn, the man with the gun ran to appellants car and entered it on the front passenger side. Appellant looked back at the direction of the police car and drove off.

The officers pursued appellants vehicle, activating both lights and siren. Appellant consistently looked back at the pursuing vehicle. At one point, appellants vehicle reached a speed of about 75 miles per hour. The vehicle went through six or seven intersections without slowing down, running red lights in some instances. The pursuit ended when appellants vehicle collided with another vehicle injuring its occupant.

The driver of the struck vehicle saw three or four males exit the other car and saw police officers chase the fleeing men. Other officers pursued appellant and apprehended him. Officer Hodge noted that the two backseat passengers were wearing red Phillies hats and another one was found in the car. An officer also recovered from the floorboard on the drivers side of the vehicle a bag containing 10 individually packaged baggies containing marijuana. Also recovered from the car was $110 in currency.

Officer Stephen Underwood, a Los Angeles Police Officer assigned to the 77th Street Gang Enforcement Detail, testified as a gang expert as follows: he had gang training at the Los Angeles Police Academy; he had dealt with gang issues for some time; for the preceding three or four months he had been gathering intelligence on the Rollin 40s Neighborhood Crips gang; the Rollin 40s Neighborhood Crips, consisting of approximately 350 members, had various tattoos and hand signs that identified the gang; one segment of the gang, the Park side of the gang, identified its members with a Phillies hat because of the P on the hat; and based on a statement by appellant to police in 2006, the fact that another officer recognized appellant as a gang member, and appellants admission during the foot pursuit on the night of the offense, he opined that appellant was an active Rollin 40s Neighborhood Crips gang member. Officer Underwood further testified regarding the criminal activities of other Rollin 40s Neighborhood Crips gang members, including one who was convicted on two counts of attempted murder and possession of a firearm by a felon, and one who was convicted of robbery and attempted robbery. Both convictions were in 2005. He noted that one of the backseat passengers who was apprehended, had 13 five-dollar bills on his person, and no paraphernalia for smoking, admitted to being Rollin 40s Neighborhood Crips gang member. He further testified that gang members use guns to defend their narcotics trade, and that in his opinion, appellants leading the police in a vehicle pursuit was done for the benefit of his gang. He added that appellants driving the car, including a gang member possessing a gun, promoted appellants status within the gang and the neighborhood, and that possessing the marijuana for sale was also for the benefit of the Rollin 40s Neighborhood Crips.

Officer Underwood also testified that he had training as a narcotics expert. He said that the marijuana found in the car appellant was driving was packaged as nickel bags, which would sell for five dollars each, and that based on his training in controlled substances and the circumstances, his opinion was that the marijuana was possessed for sale.

Appellant testified that he was in the car because he needed a ride but was not the driver. His left arm was broken and in a cast at the time. When the car came to a stop after the chase, he was dizzy because he hit is head. He exited the car and blanked out. He denies running and did not know about any marijuana. He also denied being a gang member. Appellants mother confirmed that his arm was broken and that he called indicating he needed a ride.

DISCUSSION

Appellant raises two issues: the sufficiency of the evidence that felony evading (Veh. Code,  2800.2, subd. (a)) was committed for the benefit of a street gang within the meaning of section 186.22, subdivision (b)(1)(A), and whether the sentence in count five, misdemeanor (Veh. Code,  20002, subd. (a)) hit and run, must be stayed under section 654 because of the adjudication under count three, felony hit and run (Veh Code,  20001, subd. (a)).

1. Gang Enhancement

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255]; see also Jackson v. Virginia (1979) 443 U.S. 307, 319-320 [99 S.Ct. 2781, 2789-2790, 61 L.Ed.2d 560].) Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Redmond (1969) 71 Cal.2d 745, 755 [79 Cal.Rptr. 529, 457 P.2d 321.) (People v. Bolin (1998) 18 Cal.4th 297, 331. The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. (In re Jose R. (1982) 137 Cal.App.3d 269, 275.)

Section 186.22, subdivision (b)(1)(A) provides that a person 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 have the sentence enhanced. Appellant challenges the four year enhancement for count one, felony evading in violation of Vehicle Code section 2800.2, subdivision (a).

Appellant contends that the gang expert testimony was not sufficient to establish that appellant had the requisite intent in evading to invoke the gang enhancement. Appellant argues that the flight was not committed in concert with other gang members, for only one person was identified as a gang member, and that it was not likely that a non-gang member would be present in an enterprise to promote the gang.

There was testimony that appellant was a gang member, as was one of the backseat passengers; that two of the cars occupants were wearing gang-related hats and a third such hat was found in the car. There is no indication of whether or not the fourth occupant was a gang member, as he was not identified. There was evidence that the occupants were engaged in the sale of narcotics and that at least one occupant was armed. Officer Underwood gave expert testimony that the driver was there to protect the gang members, the gun, and narcotics and that his conduct was to enhance his status within the gang and the neighborhood.

Expert testimony may be used to establish elements of the gang enhancements. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324; People v. Gardeley (1996) 14 Cal.4th 605.) It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. [Citation.] While there may be instances when it is improper for an expert to express an opinion on an ultimate issue such as specific intent [citation], this is not one of them. Here, the gang experts testimony was necessary to explain to the jury how a gangs reputation can be enhanced through drug sales and how a gang may use the proceeds from such felonious conduct. There are matters sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . . [Citation.] (People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931; see also People v. Romero (2006) 140 Cal.App.4th 15, 18-19.) Commission of a crime with known gang members in connection with gang activity can support the inference that appellant acted with the specific intent to promote, further or assist gang members in and for other criminal conduct. (People v. Romero, supra, 140 Cal.App.4th at p. 19.) There is sufficient evidence that appellant, identified as a gang member, fled as part of a concerted actionaction that, inter alia, would promote his standing in the gang. An effort to evade criminal activity that is intended to promote, further, or assist, gang members in the commission of that activity likewise is intended to achieve the same ends.

There is substantial evidenced supporting the finding that appellant committed the offense of evasion with the specific intent to promote, further, or assist gang members in the commission of the offense. Thus, the juvenile court did not err in imposing the gang enhancement.

2. Section 654

Section 654 prohibits multiple punishment where the convictions arise out of an indivisible transaction and have a single intent and objective. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) Appellant contends this principle applies to count threefelony hit and runand count fivemisdemeanor hit and run. A trial courts implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. (People v. Blake (1998) 68 Cal.App.4th 509, 512.)

In count three, a violation of Vehicle Code section 20001, subdivision (a), appellant is being punished for failing to provide information and render assistance to the injured driver of the other car. In count five, a violation of Vehicle Code section 20002, subdivision (a), appellant is being punished for not stopping and providing information to the other driver. Although appellants act was to flee the scene, he committed two distinct omissions. If [a defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.) The trial court here could have concluded, based on substantial evidence, that the objectives of not providing information and not aiding an injured person were independent of, and not merely incidental to, each other. (See In re Hayes (1969) 70 Cal.2d 604 [held that section 654 did not stay one of multiple sentences for convictions for driving with a suspended license and driving under the influence of intoxicating liquor].) In fact, the trial court, in finding appellant committed both offenses, necessarily concluded that beyond a reasonable doubt, there were separate and independent intents for the two offenses. Although there was an objective to avoid the police, there were separate objectivesavoiding providing information and avoiding rendering aid to an injured motorist.

Accordingly, the trial court did not err in imposing the consecutive sentences.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORT

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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

^[2] The trial court stated 10 years and four months, but this was an erroneous computation. The parties do not dispute that the maximum period of confinement was 11 years and six months.