P. v. Bojorquez












Filed 11/17/10 P. v. Bojorquez CA2/8







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. JOSE BOJORQUEZ, Defendant and Appellant.

B222394 (Los Angeles County Super. Ct. No. NA083172)

APPEAL from a judgment of the Superior Court of Los Angeles County. John David Lord, Judge. Affirmed.

Philip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Jose Bojorquez appeals from a judgment sentencing him to 16 years in state prison for second degree robbery, which was committed for the benefit of a criminal street gang and which inflicted great bodily injury. The gang enhancement finding accounts for 10 years of his sentence. Bojorquez contends on appeal there is insufficient evidence to support the gang enhancement finding. We affirm the judgment.
FACTS
1. The Robbery
Kevin Harvey was parking his car at two o’clock in the morning on July 3, 2009, in Harbor City when he was approached by two men, who asked him, “Where are you from‌” Harvey, aware that he was in a territory claimed by a gang and that the question was a gang challenge, told them he did not “gang bang.” The two men then asked, “Where can we find some Harbor City’s to kill‌” Nervous, Harvey responded, “Fuck Harbor City” even though his children lived there and he was visiting them.
The two men assaulted Harvey after telling him that they were from Harbor City. The men punched Harvey in the face and pushed him down onto the curb as they began “stomping” on him. Harvey identified one of the men as Bojorquez, who then pulled a gun from his pocket and told Harvey to take off his chain and his ring. The men also took his wallet and cell phone, then drove away. Harvey suffered a swollen lip, black eye, short term memory loss, and other injuries, including the loss of his partial dentures. As Harvey was looking for his dentures, which had fallen out during the assault, the two men drove back and handed Harvey some of his belongings. However, they said that they would keep the chain and money because he had “disrespected” their neighborhood. Harvey believed they returned because they saw from his driver’s license address that he lived in Harbor City.
After the assault and while looking for his dentures, Harvey found an identification card on the ground with the name Miguel Guerrero on it. The next morning, Harvey took the card to a man named Alvarez, who was known to be affiliated with the Harbor City Boys gang. Harvey wanted Alvarez to help him get his chain and money back. Harvey was unwilling to call the police because he feared for his family’s safety. Alvarez said he knew the person on the identification card and that he would try to get Harvey’s belongings back. After he took his children to the Los Angeles Sports Arena for a 4th of July celebration, Harvey was treated for his injuries at the Kaiser Permanente emergency room. Before he was released, however, the staff reported the assault to the police as mandated by law.
Although he was still reluctant to involve the police, Harvey spoke with the police over the telephone while at the hospital and then filed a report at the Harbor Division police station on August 11. He subsequently identified Bojorquez and Miguel Guerrero from two photographic line-ups.
The Los Angeles Police Department executed a search warrant at Bojorquez’s home in Harbor City. They were told he had been last seen running down an alley. Bojorquez was later arrested hiding in the attic of his uncle’s house nearby. Miguel Guerrero was still at large at the time of trial.
2. The Gang Testimony at Trial
At trial, the People presented evidence of the above and also submitted testimony from several Los Angeles Police Department police officers that Bojorquez was an admitted member of the Harbor City Boys. Officer John Craig testified on behalf of the People as a gang expert. Officer Craig described his position as one with the sole objective of gathering intelligence about Harbor City area gangs. He testified that he specialized in two gangs, Harbor City Boys and Harbor City Crips. His responsibilities included day-to-day conversations with citizens and gang members in the neighborhood, and investigations of members of the two gangs. Officer Craig further explained that the Harbor City Boys is largely a Hispanic gang while the Harbor City Crips, who occupy the same territory, is a Black gang. The two Harbor City gangs cooperate with one another. As to the Harbor City Boys’ primary activities, Craig testified as follows:
“Q: What types of activities do the Harbor City Boys engage in‌
A: It would pretty much run the entire gambit [sic], I suppose. It would range from murders and shootings, to simple vandalism, with robberies, ADW’s and burglaries in between.
Q: Have you personally investigated crimes committed by the Harbor City Boys‌
A: Yes.
Q: What types of crimes have you investigated‌
A: All of those. Murders, shootings, ADW’s, assault with deadly weapons, robberies, and burglaries.”

Craig also testified that a member of the Harbor City Boys had been arrested for driving a stolen car in 2006, to which he pled guilty, and possession of a firearm in 2008. Craig detailed the arrest and conviction of another member of Harbor City Boys for a violation of Penal Code section 69 (resisting arrest), Penal Code section 12031 (carrying a loaded firearm), Health & Safety Code section 11351 (possession for sale of a controlled substance) and Health & Safety Code section 11359 (possession for sale of marijuana).
Craig then described the rivalry between the Harbor City Boys and the East Side Torrance gang, which resulted in shootings, robberies and physical assaults. From his experience living in the area, Harvey corroborated Craig’s testimony regarding the two Harbor City gangs and their rivalry with the East Side Torrance gang. Harvey described an incident in which he was caught in the crossfire between a Harbor City Crip and the East Side Torrance gang when he first moved into the area.
Craig testified that “as a result of the level of violence and interruption they’ve inflicted on the community[,]” the city obtained a gang injunction against the Harbor City Boys and the Harbor City Crips. The injunction limited their ability to assemble or possess firearms, alcohol, drugs or graffiti making materials. Craig explained that “a lot of gangs’ power or ability to intimidate the community comes from the fact of their numbers and the level of their violence, so by limiting their ability to hang out in public, you limit their strength on the streets towards the community.”
The defense presented testimony from Bojorquez’s live-in girlfriend, who testified that he was asleep with her at the time of the assault. Bojorquez’s mother testified that the car described by Harvey as the get-away vehicle was used by Bojorquez’s brother during the time of the incident. She also stated that Bojorquez was using his sister’s car. An expert in eyewitness identification testified that eyewitness testimony was the least reliable evidence available, especially when it involves people of different races and situations of high stress.
On December 22, 2009, the jury convicted Bojorquez of second degree robbery and found true the additional allegations that the offense was committed for the benefit of a criminal street gang and in the commission of the offense he inflicted great bodily injury. (Pen. Code, §§ 211, 186.22, subd. (b)(1)(C), 12022.7, subd. (a).) The trial court denied probation and sentenced Bojorquez to serve 16 years in state prison, selecting the midterm of three years for the robbery count plus an additional three years for the great bodily injury finding and 10 years for the gang enhancement finding. Bojorquez timely appealed.
DISCUSSION
Bojorquez’s sole contention on appeal is that “the gang expert failed to present sufficient and detailed testimony as to the Harbor City Boys gang’s primary activities.” We review the jury’s finding for substantial evidence, meaning, we review the whole record in the light most favorable to the judgment to determine whether it contains evidence that is credible and of solid value from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) Applying this standard of review, we find that substantial evidence supports the jury’s true finding on the gang enhancement allegation.
Under the gang enhancement statute, a “criminal street gang” is defined as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the [enumerated] criminal acts . . . having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) According to the California Supreme Court, “[t]he phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)
At trial, both Officer Craig and Harvey testified to their personal knowledge of the Harbor City Boys and its activities. Craig possessed a great deal of knowledge about the Harbor City gangs and their activities, including his own investigation of murders, shootings, assaults with a deadly weapon, robberies and burglaries committed by the Harbor City Boys. Officer Craig patrolled the area daily, specializing in gathering intelligence about the Harbor City Boys. Craig remained in daily contact with residents and gang members. Notwithstanding the robbery at issue, Harvey also had personal experience with the violent rivalry between the Harbor City gangs and the East Side Torrance gang. Indeed, the Harbor City Boys’ level of violence and interference in the community was sufficient to warrant a gang injunction where their members were not allowed to associate, possess alcohol, weapons or drugs and had a curfew. Craig specifically testified to the convictions of two members of Harbor City Boys for driving a stolen car and possession of a firearm, both of which are crimes enumerated in subdivision (e) of Penal Code section 186.22. All of the testimony provided substantial evidence supporting the jury’s finding.
This evidence differs significantly from the evidence presented in In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), People v. Perez (2004) 118 Cal.App.4th 151 and In re Leland D. (1990) 223 Cal.App.3d 251 (Leland D.), cases upon which Bojorquez relies. In Alexander L., the gang expert testified generally about the benefits of graffiti to a gang. After being asked about the gang’s primary activities, the expert replied: “ ‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’ ” (Alexander L., supra, at pp. 611-612.) The prosecution failed to present any further evidence regarding the gang’s primary activities. In rejecting the sufficiency of this evidence, the court focused on the foundation of the expert’s testimony. It stated: “[The gang expert’s] entire testimony on this point is quoted above—he ‘kn[e]w’ that the gang had been involved in certain crimes. No specifics were elicited as to the circumstances of these crimes, or where, when, or how [the expert] had obtained the information. He did not directly testify that criminal activities constituted [the gang’s] primary activities. Indeed, on cross-examination, [the expert] testified that the vast majority of cases connected to [the gang] that he had run across were graffiti related.” (Ibid., fn. omitted.)
This is also not a case where Officer Craig failed to show the Harbor City Boys consistently and repeatedly engaged in any of the enumerated crimes under Penal Code section 186.22 like in People v. Perez, supra, 118 Cal.App.4th at page 160. As described above, Officer Craig, an experienced gang investigator, testified to his own investigations and daily activities specializing in the Harbor City Boys gang. He also detailed prior convictions for enumerated crimes committed by Harbor City Boys gang members. Officer Craig further described the infliction of violence upon the community justifying a gang injunction. Harvey presented specific instances of violence by the Harbor City Boys and its rivals. This evidence stands in stark contrast to the vague testimony in Alexander L. The fact that Officer Craig did not use the words “primary activities” in his testimony does not automatically invalidate his testimony. (See People v. Margarejo (2008) 162 Cal.App.4th 102, 107-108.)
Nor does the analysis in Leland D. change our conclusion. There, the court concluded that the expert testimony, “based on nonspecific hearsay and arrest information,” failed to constitute substantial evidence that the gang in question engaged in a pattern of criminal activity. (Leland D., supra, 223 Cal.App.3d at p. 259.) The requirements to prove a pattern of criminal activity are different from that required to show the gang’s primary activities. Under the gang enhancement statute, the People must present evidence that the gang’s members committed, attempted or solicited at least two or more of the enumerated offenses to show a pattern of criminal activity. In Leland D., no substantial evidence supported the finding of a pattern of criminal activity where the gang expert failed to specify “[e]xactly who, when, where and under what circumstances” the crimes were committed. (Ibid.) Indeed, when asked whether any serious felony had been committed after 1988 by the gang, the expert answered, “I’m sure there has been, but I don’t know.” (Ibid.) Thus, Leland D. differs materially from this case.
Here, Bojorquez does not contend that the People did not adequately prove the Harbor City Boys engaged in a pattern of criminal activity. In any event, Officer Craig’s specific testimony regarding the convictions of two members of the Harbor City Boys for possession of a firearm and driving a stolen car under two separate occasions provide the requisite foundation and are sufficient to establish a pattern of criminal activity under the statute.
DISPOSITION
The judgment is affirmed.

O’CONNELL, J. *
We concur:


FLIER, Acting P. J.


GRIMES, J.


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