P. v. Espinoza

Filed 12/3/09 P. v. Espinoza CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

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Following a jury trial, defendant Ernesto Becerra Espinoza was convicted of robbery. (Pen. Code,  211.)[1] In addition, the jury found true the enhancement allegations that defendant committed the crime in association with a street gang ( 186.22, subd. (b)(1)), a principal was armed with a firearm ( 12022, subd. (a)(1)), and defendant had a firearm on his person or in a vehicle ( 12021.5). He appeals his robbery conviction and the true findings on the gang enhancement, contending there is insufficient evidence that the taking was accomplished by force or fear; that there is insufficient evidence he acted with the specific intent to promote, further or assist in criminal conduct by gang members; and that there is insufficient evidence of the gangs primary activities. We affirm.

FACTUAL BACKGROUND

Daniel Burrell, Regina Anderson and Steve ONeill worked together at a Target store in Redding. Burrell was the security manager for the store, a job he had held for 18 years. On May 19, 2005, shortly after he arrived at work, several employees spoke with him individually about four Hispanic males who they felt were somewhat suspicious. One of these men was defendant.

Burrell went to view the men on the stores closed circuit (CC) security system in the CC-TV room. The security system included video feeds from various cameras inside and outside the store. The cameras enabled Burrell to monitor the men as they moved throughout the store.

The men were not dressed like typical Redding teenagers. Defendant was wearing a black and white checkered shirt and two of the men were each wearing a glove on their left hand. The men picked up some Dickies jeans. Defendant had a black shirt and a couple of pairs of pants slung over his shoulder. When they left the mens clothing department, two of the men went toward the front of the store and defendant and another man went toward the garden shop.

Burrell was suspicious of the men because they were interested in the Dickies jeans, which is a high-theft item. He was also suspicious because the foursome had split up. He thought two of them might go to the parking lot and wait in a car near the garden shop. Burrell went to the front of the store to try to prevent them from leaving with any merchandise. Anderson was there with him. Burrell noticed although the men were picking up merchandise, they seemed to be paying more attention to the activity in the department than the merchandise. This behavior also made Burrell suspicious.

Given that there were four men and Burrell was the lone security officer on duty, he was concerned for his safety. Burrell went back to the CC-TV room to further surveil the men. By this time, three of the four men had reconnected and were wandering around the store. The fourth man left the store and got into his car. That man drove through the parking lot in a somewhat circuitous route and stopped in front of the garden shop.

Two of the men inside the store headed back to the garden shop. Burrell left the CC-TV room and headed in that direction. Anderson and ONeill were also in the area. Burrell was concerned the men were going to take merchandise and was also unsure where all the men were going to go. He felt the situation represented a significant safety concern for both himself and his fellow employees, as the two men were bigger than Burrell, and since there were four of them, it made matters worse. The men then ran out of the store and Burrell followed them. Burrell wanted to get the other employees back in the store and attempt to recover the merchandise. The men got into the car Burrell had previously seen being driven around the parking lot by one of the men. As Burrell was walking outside, he heard a pop-pop sound come from the car. It sounded like gunfire to him. He ran back into the store because he was concerned for his safety. Anderson had also followed the men out of the store, but went back inside when she heard the shots.

Burrell told Anderson to call the police, to ensure they knew about the gunfire-like sound and to give them a full description of the car. He was also able to get the license plate number of the vehicle from the surveillance tapes. Later, he went to the area where he had heard the popping sounds and found two shell casings in the parking lot. Police arrived and he showed them the casings.

Carolyn Martinez, a Target customer, had parked outside the garden shop that morning. As she got out of her car, she heard gunshots and saw defendant and another man leaving the store heading to a white car.

After leaving Target, defendant and the other men drove to Sacramento, where they were ultimately apprehended. Merchandise from the store was found in the car, along with firearms and ammunition.

Officer Ronald Aurich testified as a gang expert for the People. Aurich had worked with gangs for over 20 years. He had attended approximately 25 schools dealing with gang issues, spoken to and arrested thousands of gang members, taught at police academies, spoken at state colleges and sat on advisory committees about gangs. He helped develop gang validation criteria or units for a number of police departments. He had a variety of contacts with gang members, including positive relationships with them. He also had informants within the gangs.

Aurich testified that the gang involved in this robbery was the Howe Park Sureos. Aurich had been investigating and contacting members of the Howe Park Sureos for 10 to 15 years. The three men other than defendant involved in this case (Ramos, Gonzalez and Zamora) were all validated as members of the Sureo gang. They had tattoos representing their gang affiliation, had admitted their membership, had haircuts identified with the gang, and wore clothing affiliated with their gang membership. Defendant was also a validated member of the Sureo gang. He had been validated as a gang member in 2004. At that time, he had admitted his gang membership, was wearing gang clothing and was accompanied by other gang members. Defendant again admitted his gang membership in 2005.

Aurich opined the Howe Park Sureos existed to commit crimes to promote their gang, to show that their gang is aggressive, a gang to be reckoned with, and to achieve status within the gang community. They also commit crimes to intimidate and earn respect. They commit violent crimes, such as homicides, drive-by shootings, robbery, assaults, and drug offenses. Aurich also testified regarding two drive-by shootings committed by the Sureos.

Based on the totality of the circumstances, Aurich opined that the Target robbery was committed for the benefit of the Sureo gang. Specifically, Aurich noted the clothing stolen was typical clothing worn by gang members and in colors associated with the Sureos or colors that are considered neutral. The blue bandanas worn during the robbery were an open display of gang affiliation, as was the walking formation, and other clothing items they were wearing. The gun being fired, in addition to preventing pursuit, would add to the stature of the gang members. Elevating the stature of the gang members in turn elevates the status of the gang. The more flamboyant, aggressive and violent a crime is, the more glamour the gang gets.

Some members of defendants family testified defendant did not dress like a gang member, was employed as a painter and was just a regular teenager. Former homicide investigator Mark Harrison testified that a crime participants prior validation as a gang member does not necessarily make a crime gang related. He concluded this crime was not committed for the benefit of the gang.

PROCEDURAL HISTORY

Defendant was charged with second degree robbery. It was further alleged he had committed the offense in association with a street gang, that a principal was armed with a firearm, and that defendant carried a firearm. A jury found defendant guilty as charged and found the enhancement allegations true. Defendant was sentenced to an aggregate term of 14 years in state prison.

DISCUSSION

I

Defendant contends the robbery conviction must be reversed because there was insufficient evidence the robbery was accomplished by force or fear. Specifically, defendant contends the force or fear element of robbery is missing here, as defendant and his companions did nothing to instill fear by sight or sound. Defendant dismisses the firing of the gun, because neither [] Burrell nor any other store employee had any ongoing or future intention of trying to re[]take the property at the time the shots were fired[.]

In resolving sufficiency of the evidence claims, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Gomez (2008) 43 Cal.4th 249, 265 (Gomez).)

Section 211 provides, Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. In Gomez,supra, 43 Cal.4th 249, our Supreme Court held: [A] taking is not over at the moment of caption; it continues through asportation. . . . [A] robbery can be accomplished even if the property was peacefully or duplicitously acquired, if force or fear was used to carry it away. (Id. at p. 256, citing People v. Anderson (1966) 64 Cal.2d 633.) Our Supreme Court further held, [M]ere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot. (Gomez, supra, 43 Cal.4th at p. 257, quoting People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8, italics added; see also People v. Estes (1983) 147 Cal.App.3d 23, 27-28; People v. Kent (1981) 125 Cal.App.3d 207, 213 & fn. 6; People v. Perhab (1949) 92 Cal.App.2d 430, 434-435.) Put another way, [t]he use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery. (People v. Flynn (2000) 77 Cal.App.4th 766, 772, citing People v. Torres (1996) 43 Cal.App.4th 1073, 1077-1079.)

Here, Anderson and Burrell followed defendant and his cohorts from the store. Burrell wanted to see if he could recover any of the merchandise. Although he would not have physically detained defendant and company, if he had been given the opportunity, he would have confronted them and tried to recover the merchandise. Burrell continued following them until they were getting into the car. He wanted to be able to give the police a full description of the vehicle, including its license plate number. Then he heard the gunshots. He thought they could have been shooting at him and decided not to pursue them any further.

Defendant contends he and his companion were merely trying to flee the store, reach the car, and make their escape; they did nothing to instill fear by sight or sound, such as turning to confront or shouting threats, to any employee who might be pursuing them. Similarly, the two men in the car did not get out as if to confront anyone, nor did they yell threats at [] Burrell or any other store employee. While these statements may be true as far as they go, they entirely disregard the fact that Burrell and Anderson had followed the men, and defendant or one of his companions fired a gun in the direction of Burrell and Anderson. To suggest this is not a show of force or an attempt to instill fear in Burrell and his coworkers is ludicrous. The men fired the shots to prevent Burrell from continuing to follow them, either to reclaim the property or to better identify them. In either case, the purpose was to facilitate defendants getaway, his escape. The use of force to escape or carry away the loot elevated this offense to robbery. There was sufficient evidence of force or fear to support a robbery conviction.

II

Defendant contends the gang enhancement must be stricken, as there is insufficient evidence he acted with the specific intent to promote, further, or assist in criminal conduct by gang members. Defendant makes two main points in his argument: first, that there was not sufficient evidence to support a finding the robbery was gang related or committed with the intent to promote or further the gang and second, that there is insufficient evidence of an intent to benefit the gang, rather than the offenders personally. Both contentions fail.

The gang enhancement in 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 association with a gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales), some italics added.) [S]pecific intent to benefit the gang is not required. What is required is the specific intent to promote, further, or assist in any criminal conduct by gang members . . . . (Ibid., italics in Morales omitted.)

Here, there is no challenge to the evidence that defendant and his three companions, Ramos, Zamora and Gonzalez, were all validated members of the Sureo gang. Nor is there any question they traveled to Redding together as a group and were armed. Defendant intended to commit a robbery in association with his fellow gang members Ramos, Zamora and Gonzalez. From this evidence, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members. (Morales, supra, 112 Cal.App.4th at p. 1198.)

There was ample evidence defendant intended to commit a crime, intended to assist Ramos, Zamora and Gonzalez in committing a crime, and that he knew they were members of his gang. From this evidence, it was reasonable to infer defendant had the specific intent to further the criminal conduct of Ramos, Zamora and Gonzalez, i.e., to assist in criminal conduct by gang members. (See Morales, supra, 112 Cal.App.4th at p. 1198; People v. Romero (2006) 140 Cal.App.4th 15, 19-20.)

Moreover, Aurich testified that gang members stealing merchandise from stores and firing shots in the course of those thefts increases the gang members status and accordingly increases the status of the gang. Such conduct gives the gang bragging rights. The property stolen was typical gang clothing. This was also sufficient evidence on which the jury could base the finding that the robbery was committed to benefit the Sureo gang. Based on all the foregoing, we find there was sufficient evidence to support the finding that this offense was committed in association with a gang and to assist criminal conduct by gang members.

III

Defendants final contention is that the gang enhancement must be reversed as there is insufficient evidence of the gangs primary activities. Defendant is wrong. The statute defines a criminal street gang as any ongoing . . . 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 [elsewhere], 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).) To trigger the gang statutes sentence-enhancement provision ( 186.22, subd. (b)), the trier of fact must find that one of the alleged criminal street gangs primary activities is the commission of one or more of certain crimes listed in the gang statute. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.)

Aurich testified the Howe Park Sureos exist to commit crimes to show their gang is aggressive, volatile, [and] demands respect. He specifically identified robbery and attempted murder as two of those activities, both statutorily enumerated offenses. Aurich testified in detail about a drive-by shooting committed by a Sureo on which he was the investigating officer. The record of conviction, showing the true finding of the gang enhancement on that case, was also admitted in evidence. He also testified in detail about another case, an attempted murder committed by a validated Sureo gang member. The record of conviction for this offense was also admitted into evidence, again showing a true finding of the gang enhancement on that case. He also noted he could provide evidence of many other cases involving Sureo gang members, going back 10 to 15 years. The evidence provided by Aurich was substantial evidence on which the jury could find the Sureos primary activities fall within one of the statutorily enumerated offenses. (People v. Gardeley (1996) 14 Cal.4th 605, 620; People v. Margarejo (2008) 162 Cal.App.4th 102, 107-108.)

Defendant likens this testimony to that of the expert in In re Alexander L. (2007) 149 Cal.App.4th 605. There, the court held that a gang experts testimony at trial lacked an adequate foundation. (Id. at p. 612.) The level of detail in Aurichs testimony, as well as the reliability of his source information and his personal knowledge, readily distinguishes this case from In re Alexander L.

DISPOSITION

The judgment is affirmed.

NICHOLSON , J.

We concur:

SIMS , Acting P. J.

ROBIE , J.

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[1] Further undesignated statutory references are to the Penal Code.