P. v. Beltran
Filed 8/21/12 P. v. Beltran CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
DAVID ANTHONY BELTRAN,
Defendant
and Appellant.
E053541
(Super.Ct.No.
FVA701548)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Ingrid Adamson Uhler, Judge.
Affirmed in part; reversed in part with directions.
Michael
B. McPartland, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Jennifer Jadovitz, and
Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, David
Beltran, of first degree murder (Pen.
Code, § 187, subd. (a))
name="_ftnref1" title="">[1] and torture (§ 209), both of which were
committed for the benefit of a criminal street gang (§ 186.22, subd.
(b)(1)(c)). In connection with the
murder, the jury further found that a principal used a firearm, discharged a
firearm and discharged a firearm causing death (§ 12022.53, subds. (b), (c),
(d) & (e)(1)). Defendant was
sentenced to prison for two consecutive terms of 25 years to life. He appeals claiming there is insufficient
evidence to support the jury’s finding that he committed these crimes to
benefit a criminal street gang. We agree with him and, therefore, reverse the
gang enhancement true findings and the firearm use enhancement true findings
(which are dependent on the crimes being committed to benefit a street gang)
and their sentences and instruct the trial court to amend the abstract of
judgment and minutes of the sentencing hearing to reflect this. The parties agree that the trial court
incorrectly calculated defendant’s actual presentence time served, therefore,
we will direct the trial court to award credit for 1,325 days and to reflect
this in the minutes of the sentencing hearing and the abstract of judgment. Otherwise, we affirm.
On
April 4, 2003, defendant and his codefendant, both members and officers of a
local chapter of the Vagos motorcycle club, participated, along with seven
other members, in the beating of the victim, a club “hang-around,†because the
latter owed money to one of the other members and had not returned a truck
belonging to yet another. Then,
defendant drove the bound victim, along with the codefendant, in his truck out
to the desert where the victim was fatally shot. Because we reverse for insufficiency of the
evidence only on the element of the gang enhancement that the Vagos had, as one
or more of their primary activities, the commission of assault with a deadly
weapon by means likely to produce great bodily injury, robbery,
murder/manslaughter, the sale or possession for sale or transportation of
controlled substances and/or the sale, delivery or transfer of firearms we will
here set forth in detail only the evidence that might, and, according to the
People does, support that finding.
The
prosecution gang expert testified that in 2003, the Vagos had 45-50 local
chapters, comprised of between three and in excess of 10 or 12 members, each,
for a total of 300-400 members. Each
chapter had its own officers and there was an international organization
comprised of international level officers.
He said that the presidents of the local chapters ran the chapters like
governors run states and “at some point†the international organization “would
be in charge of controlling the activities of all the local chapters.†However, he also said that the presidents of
the local chapters decided how those chapters would operate, but they would
have to answer to the international organization for what happened. Documents entitled “International/National
Bylaws†seized in August 2010 were introduced at trial. The first stated “Revised and in Effect
January 1, 2008.â€
title="">[2] The other stated, “Revised and in Effect
March, 1993[,]†but this was crossed out and replaced with “Jan[uary]
2008[.]†The person who had possession
of these documents testified that they were the bylaws for 2006 and 2008. He testified that they were changed year to
year. He also said he did not know when
the one that was originally marked “Revised and in Effect March, 1993†was in
effect. In fact, he asserted that there
were no bylaws in 2003, the years these crimes were committed. The prosecution’s gang expert testified that
the international officers and the presidents of each local chapter had access
to the bylaws. Aside from testifying,
without identifying the source of his information, that members were able to
retire early as provided for in the bylaws, he never once asserted that the
bylaws actually governed the behavior of members in the local chapters.
provision that a member can retire early if imprisoned for a Vagos-related
matter as an example of how crimes are committed for the benefit or at the
direction of the club in that one gains respect within the organization for
committing such crimes. He did not
address other provisions of the bylaws that members coming out of prison can
get leaves of absence from the club, that no prospect for membership can be
touched, beaten or physically abused without an international officer being
present and giving consent, that Vagos patches are to be protected with
members’ lives, that patch holders (members in good standing) run the local
chapters and believe there are only Vagos and everyone else and that club
business is not to be discussed outside the club. No other members who testified at trial were
even asked about the bylaws.
name="_ftnref4" title="">[4]
Four
of the members who testified at trial expressed concern for the safety or
well-being of themselves and their family members or fear of repercussions, but
none specified what form this would take.
disobeyed the rules or disrespected others in the club were disciplined with
anything from “a little ass . . . kick[ing]†to a more
substantial beating, but one that did not require medical attention.
According
to the prosecution’s gang expert, patches some members wore signified that they
either used to sell or use methamphetamine or marijuana or currently sold or
used either drug. The expert also said
that another patch was earned if a member knocked someone out with one
punch. He never testified how many
members wore these patches.
The
gang expert testified that between 2000 and 2002, a member of the Nomad Chapter
became an informant “within the Vagos†for the Bureau of Alcohol, Tobacco &
Firearms and during this time he or another informant were able to buy either
narcotics or firearms on 20 occasions.
Predicate
offenses were identified as a 2000 killing that resulted in a second degree
murder conviction of a San Bernardino chapter prospective member and a
manslaughter conviction of a member, a 1998 assault that resulted in three
Victorville chapter members being convicted of assault with intent to commit
great bodily injury and a robbery conviction in 1997 by a Victor Valley chapter
member.
A
San Bernardino chapter member who testified at trial admitted suffering
convictions in 1994, 1997, 1998, 2004 and 2008, for possession of controlled
substances and a firearm. He said he
used methamphetamine with the victim, who occasionally supplied it to him. Another member who also testified at trial
admitted suffering convictions for transporting methamphetamine in 2004 and
2005 and discharging a firearm in 2004.
Another member who testified said he used methamphetamine during the
time of the murder and in 2005 was arrested for carrying a handgun.
A
member testified that “some members†have drugs and guns when they travel
together as a group.
and Discussion
As
already stated, according to the instructions given the jury, in order to
conclude that the Vagos was a criminal street gang for purposes of the gang
enhancements for both crimes and the firearm enhancements for murder, the jury
had to find that the club has, as one of more of its primary activities, the
commission of “assault with a deadly weapon or by means likely to produce great
bodily injury, robbery, murder/manslaughter, the sale or possession for sale,
transportation of controlled substances, and/or the sale, delivery, or transfer
of firearms.†“In order to qualify as a
primary activity, the crime must be one of the group’s chief or principal
activities rather than an occasional act committed by one or more persons who
happen to be members of the group.â€
“In
People v.
Gardeley . . . [(1996)] 14 Cal.4th 605,[ 611, 620,]
th[e] requirement [of establishing one or more primary activities] was
satisfied by the testimony of a police gang expert who expressed his opinion
that the primary activities of the group in question were drug dealing and
witness intimidation, both statutorily listed crimes. [Citation.] . . . [¶]
. . . [¶] Evidence
of past or present (i.e., acts committed at the time of the charged offenses,)
conduct by gang members involving the commission of one of more of the
statutorily enumerated crimes is relevant in determining the group’s primary
activities. . . . [¶] . . . Would
such evidence alone be sufficient to prove the group’s primary activities? Not necessarily. The phrase ‘primary
activities’ . . . would necessarily exclude the
[¶] Sufficient proof of the gang’s
primary activities might consist of evidence that the group’s members
committed criminal activity listed in the gang statute. (People
v. Sengpadychith (2001) 26 Cal.4th 316, some italics added.)
The
prosecution’s gang expert did not testify that in his opinion, the Vagos’
primary activity consisted of the crimes listed in the jury instructions.
Of
all the above-described activity ascribed to Vagos members, only the following
fit within the crimes listed for the jury that occurred before or at the time of the charged offenses: the present murder and the beating administered to the
victim before he died, the 20 incidents of sales of controlled substances
and/or firearms between 2000 and 2002 at the Nomad chapter, the 2000
murder/manslaughter convictions of two members, the 1998 aggravated assault
convictions of three members and a 1997 robbery conviction of a member. When compared with the only statistic offered
at trial as to the membership of the Vagos, which was that in 2003, it had
300-400 members, these crimes cannot be said to constitute consistent and repeated commission of the listed offenses. Unlike most gang cases, where the membership
is far more limited and it is therefore much easier to prove a primary
activity, here, where there were hundreds of members, the prosecutor’s task was
much more difficult and he did not succeed.
Perhaps if he had confined himself to the San Bernardino chapter and not
presented evidence of crimes committed by members of other chapters, he might
have been successful, but he did not choose this path.
Putting
aside each crime or conviction that occurred after the charged crimes which the
People assert as a basis for a finding of substantial evidence, we now address
the evidentiary points raised by the People.
While
knocking someone out with one punch alone, which, according to the expert, was
rewarded with a patch, may, under certain circumstances, constitute an assault
with intent to commit great bodily injury, without any testimony as to how many
Vagos members had such a patch, there is no basis upon which to even add this
fact to the equation in determining the group’s primary activity. The same is true for patches “celebratingâ€
the wearer’s former or current use or sale of marijuana or
methamphetamine—aside from the fact that neither qualifies as a listed
offense. Carrying drugs or guns and
using methamphetamine also does not qualify.
The People add that the fact that one member cleaned and took apart a
gun that another member used to pistol whip the victim, along with the
foregoing, could allow the jury to conclude from the prevalence of guns and
methamphetamine that the sale/possession for sale/transportation of controlled
substances and the sale/delivery/transfer of firearms was one of the primary
activities of the club. However, given
the large membership, it is not. The
People’s second assertion, that “the prevalence of firearms facilitated the
Vagos’ commission of . . . murder, manslaughter, and
robbery†is unsupported by the evidence.
All
the evidence about the group’s code of silence, loyalty to each other, fear of
retaliation for testifying and the bylaws have nothing whatsoever to do with
the commission of the enumerated offenses.
Beatings by members upon other members for disobedience or lack of
respect was neither a listed offense, nor, considering that they were
consented-to, any offense at all.
2.
Credits
The
parties agree that the trial court incorrectly calculated defendant’s actual
time in presentence custody as 960 days rather than the 1,325 days he
served. We will direct the trial court
to amend the minutes of the sentencing hearing and the abstract of judgment to
show an award of 1,325 days of credit.
The
true findings under sections 186.22, subdivision (b) and 12022.53, subdivisions
(b), (c), (d) and (e)(1) are reversed, as are any sentences imposed for them,
leaving a total sentence of 25 years to life.
The trial court is directed to amend the abstracts of judgment and
minutes of the sentencing hearing to reflect this, along with an award of 1,325
days of credit for defendant’s actual presentence custody of 1,325 days. In all other respects, the judgment is
affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
KING
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] Curiously, it is this set of bylaws to which
the People refer in their statement of facts as evidence of “the prevalence of
criminal activities among†members in 2003.
