P. v. Chavez




Filed 1/18/11 P. v. Chavez CA2/6








NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, Plaintiff and Respondent, v. JOSE MARIO CHAVEZ, Defendant and Appellant.

B220659 (Los Angeles County Super. Ct. No. NA082172)

APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed as modified.
Allison H. Ting, 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, Senior Assistant Attorney General, Lance W. Winters and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
_____________


A jury convicted Jose Mario Chavez of two counts of aggravated assault, one count of dissuading a witness from reporting a crime and one count of possession of methamphetamine and found specially alleged criminal street gang, firearm-use and hate crime enhancements to be true. The trial court sentenced Chavez to an aggregated state prison term of 47 years to life. On appeal Chavez contends the evidence was insufficient to support the gang enhancements and the court committed prejudicial error by instructing the jury on different (and lesser) hate crime enhancements than those alleged in the information. He also asserts the trial court made several sentencing errors. We modify the sentence to accurately reflect the jury’s findings on the hate crime enhancements and to correct two other errors resulting in an unauthorized sentence. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Chavez was charged in a second amended information with two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) (counts 1 and 4),^[1] one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 2) and one count of dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)) (count 3). It was specially alleged as to counts 1, 3 and 4 that Chavez had personally used a firearm (§ 12022.5, subd. (a)), and that the offenses were hate crimes (§ 422.75, subd. (b)) and had been committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C) (counts 1 and 4), (b)(4) (count 3)).^[2] Chavez pleaded not guilty and denied the special allegations.
2. The Trial
According to the evidence at trial, in early May 2009 Elner Ferguson moved with her one-year-old grandson into a house on Young Street in the City of Wilmington. On May 22, 2009 Chavez, who is Hispanic, approached Ferguson, who is African-American, while she was walking with her brother in her Wilmington neighborhood. Chavez identified the neighborhood as territory belonging to the East Side Wilmas criminal street gang. He demanded that Ferguson and her brother state their gang affiliation and inquired whether any East Side Wilmas gang member had confronted them. Ferguson replied she and her brother did not belong to a gang and were not familiar with the city because they were not from there. She and her brother then walked away.
On May 26, 2009, as Ferguson was holding her grandson in her arms on her front porch, Chavez leaped over the porch banister to stand directly in front of her. Four other Hispanic men who had accompanied Chavez to Ferguson’s house stood in the front yard, two on one side of Ferguson’s house and two on the other side. Ferguson recognized Chavez as the man who had spoken to her and her brother a few days earlier. Chavez pointed a gun at Ferguson’s face, cocked the hammer of the pistol and shouted, “Ain’t no Niggers allowed to live over here. The Niggers live on the other side of PCH [(Pacific Coast Highway)].” Chavez demanded that Ferguson “go back across [the highway]. You have two days to be gone and out of here. If you call the cops, I am going to burn down your house.” Terrified, Ferguson ran inside with her grandson, locked the door and called the police. She also immediately started packing her and her grandson’s belongings to move out of their home. Ferguson and her grandson left their home that night and ultimately found a new residence in a different city.
On May 28, 2009 Los Angeles Police Detective Walter McMahon arrested Chavez after Ferguson had identified him. McMahon found two small plastic bags containing .26 kilograms of methamphetamine in Chavez’s possession at the time of his arrest.
Los Angeles Police Officer Mark Maldonado, who had acquired extensive training in criminal street gangs with a specialized knowledge of the East Side Wilmas gang during his 10-plus years working gang detail, testified at trial as a qualified gang expert. Maldonado explained that gangs had divided along racial lines in Wilmington. The East Side Wilmas is a Hispanic criminal street gang; its rivals, the Ghost Town Bloods, is an African-American criminal street gang that claims territory just north of Pacific Coast Highway. According to Maldonado, an African-American family living in East Side Wilmas’ territory would be considered “disrespectful” to the East Side Wilmas and would be interpreted by the two gangs as a sign of East Side Wilmas’ weakness. Given a hypothetical involving facts identical to the instant case, Maldonado opined the offenses against Ferguson (two aggravated assaults and dissuading a witness from reporting a crime) were committed to benefit a criminal street gang.
Chavez did not testify. His defense counsel argued this was a case of mistaken identity: Ferguson had identified the wrong person.
3. The Verdict and Sentence
The jury convicted Chavez on each of the charged offenses and found each of the special allegations to be true. Chavez was sentenced to an aggregate state prison term of 47 years to life.^[3]
DISCUSSION
1. Substantial Evidence Supports the Jury’s True Findings on the Criminal Street Gang Enhancements
To assess a claim of insufficient evidence in a criminal case, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., 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. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Section 186.22, subdivision (b), establishes alternative or additional penalties for felons whose crimes were 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.” As used in this statute—the Criminal Street Terrorism Enforcement and Prevention Act of 1988 or STEP Act—“‘criminal street gang’ means 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 criminal acts enumerated [in portions of section 186.22, subdivision (e)], 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).) “The 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.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) That definition “necessarily exclude[s] the occasional commission of those crimes by the group’s members . . . .” (Ibid.) “Past offenses, as well as the circumstances of the charged crime” are relevant to this question and may be considered by the jury on the issue of the group’s primary activities. (People v. Duran (2002) 97 Cal.App.4th 1448, 1465.)
Chavez acknowledges Maldonado testified that the East Side Wilmas’ “primary activities” included “assault with a deadly weapon, robbery, attempt[ed] homicide and narcotic sales and use” and intimidation of witnesses and victims, all of which are crimes listed in section 186.22, subdivision (e). Nonetheless, he contends the officer’s testimony was too “vague, weak and conclusory” to constitute substantial evidence because there was no foundation for Maldonado’s testimony. (See In re Alexander L. (2007) 149 Cal.App.4th 605, 614 [police officer’s testimony that he “knew” members of gang had been involved in certain crimes was insufficient evidence when officer did not explain how he knew].) Chavez, however, did not object on this basis to Maldonado’s testimony and with good reason.^[4]
Maldonado testified that monitoring and investigating the East Side Wilmas street gang was his “primary responsibility” from 1998 to 2009. In connection with those investigations Maldonado had thousands of contacts with East Side Wilmas gang members and had learned about the gang’s territory and symbols, as well as the crimes they commit. He listed robberies, homicides, aggravated assaults and witness intimidation as precisely the type of offenses East Side Wilmas gang members routinely commit. Unlike the brief and conclusory testimony at issue in In re Alexander L., supra, 149 Cal.App.4th 614, Maldonado’s testimony, whether based on his personal observations or his discussions with gang members during his investigations, plainly constituted substantial evidence of the gang’s primary activities. (See People v. Gardeley (1996) 14 Cal.4th 605, 620 [gang expert’s opinion based on conversations with gang members and on his “personal investigations of hundreds of crimes committed by gang members” was sufficient to establish primary activities element of gang enhancement]; People v. Sengpadychith, supra, 26 Cal.4th at p. 324; see also People v. Duran, supra, 97 Cal.App.4th at p. 1465 [officer’s testimony based on his “personal experience in the field gathering gang intelligence, contacting gang members and investigating gang-related crimes” sufficient to prove a gang’s primary activities].)
2. Omission of the “In Concert” Element from the Jury Instructions Concerning the Hate-crime Enhancements Require Modification of Chavez’s Sentence
Section 422.75 authorizes enhanced penalties for hate crimes.^[5] Subdivision (a) of section 422.75 provides that a person who commits a felony that is a hate crime shall receive an additional term of “one, two or three years in the state prison” at the court’s discretion. Section (b) of section 422.75 authorizes an even greater sentencing enhancement—two, three or four years, at the court’s discretion—for persons who commit a hate crime while voluntarily acting “in concert with another person, either personally or by aiding and abetting” another person.
The information in the instant case specially alleged the two aggravated assaults and the witness intimidation were hate crimes, committed voluntarily and in concert with others in violation of section 422.75, subdivision (b). However, the trial court, without objection, instructed the jury with CALJIC No. 17.24.5, which includes the elements required to prove the section 422.75, subdivision (a), enhancement, but omits subdivision (b)’s additional “in concert” requirement.^[6] Nonetheless, the verdict form returned by the jury found the hate-crime enhancements true under section 422.75, subdivision (b).
The People acknowledge the court’s failure to instruct the jury on the essential “in concert” element of the specially alleged hate-crime enhancement is federal constitutional error (see Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435] [“[o]ther than the fact of a prior conviction, any fact that increases the penalty of a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt”]; People v. Sengpadychith, supra, 26 Cal.4th at p. 327 [failure to instruct on element of gang enhancement is federal constitutional error under Apprendi]), but insist the error is harmless beyond a reasonable doubt because the only possible conclusion the jury could have reached from the evidence was that Chavez was acting “together with” his confederates when he committed the offenses against Ferguson and her grandson.
Although there is substantial evidence from which a jury could reasonably have found that Chavez was acting in concert with the four men who accompanied him at Ferguson’s house when he assaulted her and her grandson (see, e.g., People v. Jones (1989) 212 Cal.App.3d 966, 969 [term “in concert” (for purposes of a § 264.1, rape in concert) means “acting together”; although proof of aiding and abetting is not required, “mere presence” at scene not enough]; People v. Harrison (1989) 48 Cal.3d 321, 329 [as matter of statutory interpretation, identical terms in analogous statutes are to be construed in a like manner]), we simply cannot say beyond a reasonable doubt that this jury would have made such a finding had it been properly instructed. (See People v. Mower (2002) 28 Cal.4th 457, 484 [“[i]f a trial court’s instructional error violates the United States Constitution, the standard stated in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824] requires the People, in order to avoid reversal of the judgment, to ‘prove beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained’”].) Because there was a dearth of information about these four men and their conduct during the crimes, it is possible the jury could have found the men were merely present as bystanders, unaware of Chavez’s intent to threaten or intimidate Ferguson. (See Jones, at p. 969.)
The section 422.75, subdivision (a), hate-crime enhancement is, in effect, a “lesser included” enhancement of section 422.75, subdivision (b).^[7] The jury, properly instructed under subdivision (a), found the special allegations true. Chavez does not challenge the sufficiency of the evidence to support this lesser enhancement. Accordingly, we modify Chavez’s sentence to impose the middle term of two years for the hate-crime enhancement for counts 3 and 4 and the upper term of three years for count 1 pursuant to section 422.75, subdivision (a), to comport with the jury’s findings and the trial court’s clear intent in sentencing Chavez under those counts. (See §§ 1181, subd. 6 [“[w]hen the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed”]; 1260 [authorizing appellate court to modify judgment to reduce the degree of the offense or attempted offense].)
3. Chavez’s Sentence for Dissuading a Witness from Reporting a Crime Is Unauthorized and Must Be Modified
As discussed, the trial court sentenced Chavez to a total of 23 years to life on count 3, dissuading a witness from reporting a crime. The court first selected the upper term of three years for the underlying offense. It then added an indeterminate term of seven years to life as a criminal street gang enhancement, plus three years for the hate crime enhancement and an additional 10 years for the firearm-use enhancement. Chavez challenges this sentence, arguing the trial court failed to state on the record its reasons for selecting the upper term for the offense, as required by section 1170, subdivision (b).^[8]
Chavez is correct that the sentence imposed for this count is unauthorized, but misperceives the defect. The problem with Chavez’s sentence on count 3 is not the court’s failure to state its reasons for imposing the upper term,^[9] but rather its misapprehension of section 186.22, subdivision (b)(4)(C), as specifying a sentence enhancement rather than an alternative penalty for the underlying offense of threatening a witness to benefit a criminal street gang. (See People v. Jones (2009) 47 Cal.4th 566, 571 [§ 186.22, subd. (b)(4), specifies alternative penalties not sentence enhancements]; People v. Sok (2010) 181 Cal.App.4th 88, 96.) The court thus improperly imposed both the determinate term for the offense itself and the mandatory seven-year-to-life term specified by the criminal street gang statute. Accordingly, we modify Chavez’s sentence on count 3 to strike the three year term imposed under sections 136.1, subdivision (b)(1), and 18.
4. Chavez’s Sentence Does Not Violate Section 654
Section 654 prohibits separate punishment for multiple offenses arising from the same act or from a series of acts constituting an indivisible course of criminal conduct. (People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Latimer (1993) 5 Cal.4th 1203, 1216.)^[10] “‘Whether a course of criminal 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. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’” (Rodriguez, at p. 507; accord, People v. Lewis (2008) 43 Cal.4th 415, 519.)
Chavez contends the aggravated assault against Ferguson (count 1) must be stayed pursuant to section 654 because the assault and the intimidation of Ferguson as a witness (count 3) were part of a single intent and objective—to frighten her. (See, e.g., People v. Logan (1953) 41 Cal.2d 279, 290 [defendant who committed assault for the purpose of committing robbery could not be punished for both assault and robbery as both were part of a single intent and objective—to rob victim]; Neal v. State of California (1960) 55 Cal.2d 11, 19-20; cf. People v. Coleman (1989) 48 Cal.3d 112, 163 [when assault occurred after robbery completed, punishment for both not prohibited by § 654].) Chavez’s contention is belied by the record, which shows Chavez assaulted Ferguson with a firearm to make her fearful of living in the neighborhood and, after that offense was completed, issued a further threat, telling Ferguson he would burn her house down if she reported him to the police. The trial court’s implied finding that Chavez harbored separate intents and objectives in committing each offense is amply supported by the evidence. (See Coleman, at p. 162 [defendant’s intent and objective for each offense for purposes of applying § 654 is a factual question for the trial court, subject to review on appeal for substantial evidence]; People v. Hicks (1993) 6 Cal.4th 784, 789 [same].)
Chavez also maintains the “hate expressed” in connection with counts 1, 3 and 4 was unitary, part of a single intent and objective. Accordingly, he contends it was improper to impose three separate hate crime enhancements, one for each of those counts.
Section 654 prohibits multiple punishment for offenses involving a single intent and objective. It does not prohibit imposition of the same sentencing enhancement, if proved, to several underlying offenses if those offenses are themselves found to have had separate intents and objectives. (See, e.g., People v. Akins (1997) 56 Cal.App.4th 331, 339 [“[a]lthough defendant may have had one objective”—to benefit his gang—it did not violate section 654 to impose gang enhancements for robbery and assault; the robberies and assault were separate crimes subject to separate punishments]; People v. Bragg (2008) 161 Cal.App.4th 1385, 1403 [multiple gang enhancements proper under § 186.22 for three separate attempts to commit murder, each on behalf of the same criminal street gang]; cf. In re M.S. (1995) 10 Cal.4th 698, 726 [when hate crime alleged as separate offense under § 422.6, § 654 applicable to prohibit multiple punishment for § 422.6 offense and separate assault].)^[11]
5. Chavez’s Sentence Must Be Modified To Correct an Unauthorized Penalty Assessment
At sentencing, the court imposed a restitution fine in the amount of $9,400 pursuant to section 1202.4, subdivision (b), and an “assessment and surcharge” in the amount of $940 pursuant to section 1464 and Government Code section 76000. Chavez contends, and the People agree, the $940 assessment and surcharge are not authorized. (See § 1202.4, subd. (e) [“restitution fine shall not be subject to penalty assessments authorized in Section 1464 or Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code”]; see also People v. McHenry (2000) 77 Cal.App.4th 730, 734 [§ 1202.4, subd. (e), reflects an “unmistakable legislative intent that no penalty assessments be imposed on restitution fines”].) Accordingly, we modify Chavez’s sentence to strike the $940 penalty assessment. (See People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence reviewable on appeal absent objection in trial court because “such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing”].)
DISPOSITION
The judgment is modified to (1) strike the three-year term in count 3 under section 136.1; (2) strike the hate crime enhancements imposed under section 422.75, subdivision (b) for counts 1, 3 and 4 and replace them with the following terms under section 422.75, subdivision (a): two years for count 3, three years for count 1 and eight months for count 4; and (3) strike the $940 penalty assessment imposed under section 1464 and Government Code section 76000.^[12] As modified the judgment is affirmed. The superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.



PERLUSS, P. J.


We concur:



ZELON, J.



JACKSON, J.

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