P. v. Fields

 

 

 

 

 

 

 

 

Filed 6/24/13  P. v. Fields CA4/3

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 CALIFORNIA

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   DERRICK FIELDS,         Defendant and Appellant.

G046489            (Super. Ct. No. 11NF2712)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Steven D. Bromberg, Judge.  Affirmed.

                        Susan S. Bauguess, 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, Peter Quon, Jr., and Susan Miller, Deputy
Attorneys General, for Plaintiff and Respondent.

 

*               
*                *

 

A jury convicted defendant
Derrick Fields of two counts of robbery (Pen. Code, §§ 211, 212.5, subd. (c))
and one count of street terrorism
(Pen. Code, § 186.22, subd. (a)). 
As to the robbery counts, the jury found true gang enhancements (Pen.
Code, § 186.22, subd. (b)(1)) and firearm
enhancements (Pen. Code, § 12022.53, subds. (b), (e)(1)).  The trial court sentenced defendant to eight
years eight months in state prison.href="#_ftn1" name="_ftnref1" title="">[1]  Defendant raises a variety of issues in this
appeal, including the admissibility of a prior conviction and the sufficiency
of the evidence supporting enhancements found true by the jury.  Defendant also asserts sentencing errors occurred
with regard to the imposition of certain statutory fines.  We affirm the judgment.

 

FACTS

 

>Evidence Pertaining to Events of May 10,> 2011

At
about 11:00 a.m., on May 10, 2011, two men entered Bob’s
Market in Buena Park, California.  The men perused the beverage case.  One of the men picked up a bag of chips and
placed the bag on the checkout counter. 
A store employee was behind the counter. 
One of the men displayed a revolver. 
He said, “I have a gun,” and indicated it was a holdup.  The armed man instructed his companion to go
around the counter.  The store employee
was scared and did not resist.  The
unarmed man opened the cash register and took approximately $65.  The armed man asked a customer near the
counter for his wallet (which contained about $90) and cell phone.  The customer complied, handing over both
items.  The customer was afraid the armed
man might shoot him.  The two robbers
then left the store.  The store employee
dialed 911 and the police responded. 

Neither
the Bob’s Market employee nor the customer was able to identify defendant in
court as one of the two men participating in the robbery.  Likewise, when presented with photographic
lineups nine days after the robbery, neither the employee nor the customer
identified defendant.  But defendant’s
fingerprints were subsequently found on the chip bag.  And both the employee and the customer
identified another man, Antoine Dozier, as someone who looked similar to one of
the two men involved in the robbery (although they disagreed as to what role
Dozier played).  At the time of the
photographic lineup, the customer mentioned to the officer conducting the
lineup that there was a third man standing outside Bob’s Market who appeared to
be acting as a lookout.

Defendant
resided in Los Angeles before his
arrest.  Defendant was arrested in
connection with this case in Los Angeles
(on 81st St., near Normandie
Ave.).  In a
post-arrest interview, defendant denied that he had ever been to Buena
Park and denied that he “goes to” Orange
County.

It
was stipulated that “[o]n August 25, 2011, defendant Derrick Fields was
convicted of robbery involving use of a firearm for the May 10, 2011, robbery
of Mundo Cellular located at 1909 East La Palma Avenue, Anaheim, California,
which occurred at approximately 11:30 a.m.” 
In other words, approximately one half hour after the Bob’s Market
robbery in Buena Park, defendant
participated in the Mundo Cellular robbery in Anaheim.  Both Buena Park
and Anaheim are municipalities in Orange
County near the 91 freeway.  Bob’s Market is “not that far at all” from
the 91 freeway, perhaps two to three blocks away.  Mundo Cellular is “a little bit further” from
the 91 freeway, perhaps four or five blocks away.  It would take someone about 10 minutes to
drive from Bob’s Market to Mundo Cellular on a weekday at 11:00 a.m., driving between 60 and 65 miles per hour
(presumably on the freeway portion of the drive).  A police officer’s review of surveillance
footage from the Mundo Cellular robbery and a photograph extracted from the
footage led him to identify defendant and Dozier as two of the three Mundo
Cellular robbers.

 

>Gang Evidence

By
his own admission (at least as to a period of time before the past few years),
defendant was a member of the Eight Trey Gangster Crips.

Los
Angeles Police Officer Richard Mendoza testified as an expert witness with
particular knowledge regarding Eight Trey Gangster Crips, a gang based in South
Los Angeles. Eight Trey Gangster Crips is (and was on May 10, 2011) an active criminal
street gang with about 550 members.  The
gang’s primary activities include carjacking, narcotic sales, witness
intimidation, robbery, assaults with deadly weapons, weapons violations, and
murder.  Gang members boast about their href="http://www.fearnotlaw.com/">criminal activities, both verbally and with
graffiti.  A common phrase used by Eight
Trey Gangster Crips is “‘paper chasin,’” which “basically means they’re out to
get money, whether it be narcotics sales or robbing people.”

Mendoza
identified defendant in the courtroom, having met defendant several times in
the past.  Defendant’s gang moniker is
Far West Blue.  Defendant has tattoos all
over his body featuring gang symbols.  Mendoza
has stopped defendant at least a dozen times; on occasion, defendant admitted
his membership in Eight Trey Gangster Crips. 
Several times, defendant was stopped in the company of other Eight Trey
Gangster Crips.  Mendoza
had dozens of contacts with Antoine Dozier, who has also admitted to Mendoza
that he is a member of Eight Trey Gangster Crips.  Mendoza
identified a third participant in the Mundo Cellular robbery, Skylar Wilkerson,
who has also admitted in the past to being a member of Eight Trey Gangster
Crips.  Defendant appeared in the Mundo
Cellular surveillance video alongside Dozier and Wilkerson.  Mendoza
opined that defendant was a member of the Eight Trey Gangster Crips on May 10, 2011. 

Based
on a hypothetical question with facts mirroring those in this case, Mendoza
opined that the Bob’s Market robberies were committed for the benefit of and in
association with a criminal street gang. 
The robberies benefitted the gang because “[i]t’s all about money, power
and respect not only for the individual, but the gang itself.” The robberies
also assisted and promoted the gang because multiple gang members worked together
to achieve criminal ends. 

 

DISCUSSION

 

>Admissibility of Mundo Cellular Conviction

Defendant
first contends the court erred by allowing the prosecutor to present evidence
of defendant’s conviction of the Mundo Cellular robbery.  This evidence was admitted for the limited
purposes of proving defendant had the opportunity to commit the Bob’s Market
robbery and proving the identity of defendant as one of the Bob’s Market
robbers.href="#_ftn2" name="_ftnref2" title="">[2]  The court disallowed mention of defendant’s
gang offense conviction and gang enhancements arising out of the Mundo Cellular
robbery.  The court also recommended
presentation of the evidence of the robbery by stipulation rather than calling
witnesses to the Mundo Cellular robbery, a procedure to which the parties
apparently consented.

Despite
its relevance, “evidence of character in the form of specific instances of
uncharged misconduct, to prove the conduct of that person on a specified
occasion,” is inadmissible.  (>People v. Ewoldt (1994) 7
Cal.4th 380, 393, superseded on other grounds by Evid. Code, § 1108; see
also Evid. Code, § 1101, subd. (a).) 
But “[n]othing . . . prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident . . . ) other than his or
her disposition to commit such an act.” 
(Evid. Code, § 1101, subd. (b).) 
Thus, “[e]vidence of other crimes is admissible only if relevant to
prove a material fact at issue, separate from href="http://www.mcmillanlaw.com/">criminal propensity.”  (People
v. Demetrulias (2006) 39 Cal.4th 1, 14.)

“The
court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”  (Evid. Code, § 352.)  In cases involving uncharged misconduct, “[t]he
probative value of the uncharged offense evidence must be
substantial . . . .” 
(People v. Kipp (1998) 18
Cal.4th 349, 371.)

We
review evidentiary rulings under Evidence Code sections 1101 and 352 for an
abuse of discretion.  (>People v. Foster (2010) 50 Cal.4th 1301,
1328.)  “‘“[A] trial court’s ruling will
not be disturbed, and reversal . . . is not required, unless the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of
justice.”’”  (Id. at pp. 1328-1329.)

The
court did not abuse its discretion.  The
identity of the Bob’s Market robbers and defendant’s opportunity to participate
in the Bob’s Market robbery were clearly material facts at issue separate from
criminal propensity.  Defendant resided
in Los Angeles.  Defendant denied he was
present at the Bob’s Market robbery in Buena Park.  Placing defendant in Orange County near the
91 freeway with a firearm in the possession of his fellow participants in the
Mundo Cellular robbery at 11:30 a.m. showed defendant had the opportunity to
participate in the Bob’s Market robbery. 
Admissibility of an uncharged offense to prove identity in the charged
offense depends upon “distinctive common marks” between the two offenses.  (People
v. Medina (1995) 11 Cal.4th 694, 748.) 
The distinctive common marks between the two crimes here include the
commission of the crimes on the same day, during the same hour, and in the same
geographic region (Orange County along the 91 freeway), as well as the presence
of Dozier at both crime scenes.  (See >People v. Robinson (1995) 31
Cal.App.4th 494, 503 [presence of same accomplice at prior uncharged arson
and charged arson was distinctive mark tending to show defendant was present at
charged arson].)

 

>Sufficiency of Evidence Supporting Gang
Enhancements

Next,
defendant contends there was insufficient evidence to support the jury’s gang
enhancement findings under Penal Code section 186.22, subdivision (b)(1), which
attached to the Bob’s Market robberies. 
Penal Code Section 186.22, subdivision (b)(1), applies only if a crime
is committed:  (1) “for the benefit of,
at the direction of, or in association with any criminal street gang”; and (2)
“with the specific intent to promote, further, or assist in any criminal
conduct by gang members.”  We must review
the entire record in the light most favorable to the judgment in determining
whether it contains substantial evidence from which a rational trier of fact
could have found the charged enhancements true beyond a reasonable doubt.  (People
v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)

For
purposes of this appeal, defendant does not dispute his membership in Eight
Trey Gangster Crips or deny that Eight Trey Gangster Crips is a criminal street
gang.  Instead, defendant claims the
particular circumstances of the Bob’s Market robbery do not satisfy either
prong of the Penal Code section 186.22, subdivision (b)(1) analysis.  Defendant points to cases holding that a
defendant’s gang membership, plus expert opinion testimony pertaining to a
gang’s general culture, habits, and criminal profile, is insufficient (without
more) to establish a particular crime is subject to a Penal Code section
186.22, subdivision (b)(1) enhancement. 
(See, e.g., People v. Ochoa
(2009) 179 Cal.App.4th 650, 661-665 [expert opinion that carjacking was
gang related, which rested on defendant’s gang membership and fact that the
crime involved car theft, was insufficient to support enhancement]; >People v. Ramon (2009) 175
Cal.App.4th 843, 851 [deeming speculative an expert’s testimony related to
whether crime was committed by defendant and his accomplice on their own behalf
or on behalf of the gang]; In re Frank S.
(2006) 141 Cal.App.4th 1192, 1199 [no substantial evidence for gang
enhancement when only evidence of specific intent was expert’s opinion that
possession of knife provides protection against rival gang members].)

As
to the first element of the enhancements, there is substantial evidence
supporting the jury’s finding the attack was “committed for the benefit of, at
the direction of, or in association with a[] criminal street gang.”  (Pen. Code, § 186.22, subd. (b)(1).)  The jury could have concluded defendant and
Dozier were gang members who perpetrated the Bob’s Market robbery
together.  Along with the Mundo Cellular
robbery, the Bob’s Market robbery was part of a temporally connected pair of
robberies.  A third gang member,
Wilkerson, was also present at the Mundo Cellular robbery, and there is
evidence suggesting a third man acted as lookout at the Bob’s Market
robbery.  The evidence indicates the
Bob’s Market robbery was preplanned and distinct roles were assigned to the
participants.  The gang expert testified
as to how robberies are one of Eight Trey Gangster Crips’ primary activities
and how Eight Trey Gangster Crips engage in “paper chasin” activities for the
benefit of the gang.  The gang expert
opined that the Bob’s Market robbery benefitted the Eight Trey Gangster
Crips.  (See Albillar, supra, 51
Cal.4th at p. 63 [“Expert opinion that particular criminal conduct
benefitted a gang by enhancing its reputation for viciousness can be sufficient
to raise the inference that the conduct was ‘committed for the benefit of . . .
a[] criminal street gang”].)  The jury
was free to consider the circumstances of this particular robbery and to agree
with the expert testimony suggesting the robbery at issue was “committed for
the benefit of, at the direction of, or in association with” Eight Trey
Gangster Crips.  (Albillar, supra, 51
Cal.4th at pp. 60-64 [gang members who raped victim together subject to
gang enhancement]; People v. Hunt
(2011) 196 Cal.App.4th 811, 818-822 [defendant committing robbery with
fellow gang member subject to gang enhancement].)

There
is also substantial evidence
supporting the jury’s finding that defendant had the “specific intent to
promote, further, or assist in any criminal conduct by gang members.”  (Pen. Code, § 186.22, subd.
(b)(1).)  The statute merely requires
assistance to “criminal conduct by gang members,” regardless of the specific
charged crime.  (Ibid.; see Albillar, >supra, 51 Cal.4th at pp. 65
[enhancement “encompasses the specific intent to promote, further, or assist in
any criminal conduct by gang members
— including the current offenses — and not merely other criminal conduct by gang members”].)  “Commission of a crime in concert with known
gang members is substantial evidence which supports the inference that the
defendant acted with the specific intent to promote, further or assist gang
members in the commission of the crime.” 
(People v. >Villalobos (2006) 145
Cal.App.4th 310, 322 [affirming conviction of girlfriend of gang member
under § 186.22, subd. (b)(1)]; see also People v. Morales (2003)
112 Cal.App.4th 1176, 1198 [“specific intent to benefit the gang is not required”].)  Defendant committed the Bob’s Market robbery
with Dozier and perhaps Wilkerson.  There
is substantial evidence of the second prong.

In
light of the foregoing analysis, a subsidiary argument raised by defendant must
also fail.  Defendant claims the true
findings on the firearm use enhancement (Pen. Code, § 12022.53, subds.
(b), (e)(1)) cannot stand because these findings were premised on the jury’s
true findings under Penal Code section 186.22, subdivision (b)(1).  (Pen. Code, § 12022.53, subd. (e)(1)(A)
[vicarious liability for confederate’s use of gun in specified felonies when
gang enhancement found true].)  Because
there is substantial evidence supporting defendant’s gang enhancements, we
reject defendant’s gun enhancement argument.

 

>Imposition of Fines at Sentencing

Finally,
defendant takes issue with certain fines imposed at sentencing.  The court imposed a restitution fine in the
amount of $240 (Pen. Code, § 1202.4, subd. (a)(1)) and a parole revocation
fine of $240 (Pen. Code, § 1202.45, subd. (a)), which was stayed pending
any violation of parole.  Although he did
not raise such an objection below, defendant contends these fines constitute an
ex post facto clause violation under the federal and state Constitutions.

At
the time of the Bob’s Market robbery in May 2011, defendant faced >minimum fines of $200 under the
applicable statutes for the commission of a felony.  (See Stats. 2011, ch. 45, § 1, p. 1830
[fine “shall not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000)”]; Stats. 2007, ch. 302, § 15, p. 2455 [“parole
revocation restitution fine in the same amount” as restitution fine].)  Subsequent versions of the relevant statutes
require minimum fines of $240 for the
commission of a felony, between January 1, 2012, and December 31, 2012.  (See Pen. Code, §§ 1202.4, subd. (b)(1),
1202.45, subd. (a).)  Defendant contends he
is entitled to a $40 reduction as to each of these fines.

“A
statute violates the ex post facto clause
when, on its face or as applied, it retroactively ‘“increase[s] the punishment
for criminal acts.”’”  (>People v. Callejas (2000) 85 Cal.App.4th
667, 670.)  “[C]ourts have consistently
held restitution fines qualify as ‘punishment’ for purposes of the ex post
facto clause.”  (Ibid.)

But
even assuming the issue is not forfeited and the modest increase in the minimum
applicable fine constitutes punishment, an ex post facto violation did not
occur.  One might speculate from the
record that the court intended to impose the absolute minimum fines under law
in effect after January 1, 2012 by its selection of the $240 number, but there
is nothing explicit in the record to support this supposition.  The $240 fines were well within the court’s
discretion under law in effect in May 2010. 
Thus, defendant is not entitled to a $40 reduction in the amount of
these fines.

Defendant
also posits the court erred by imposing a fine of $10 pursuant to Penal Code
section 1202.5, subdivision (a).  This
statute provides in relevant part that “the court shall order the defendant to
pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed”
when a defendant is convicted of specified offenses, including robbery.  (Ibid.)  At sentencing, the court stated defendant
will “also pay a theft and robbery fine pursuant to Penal Code section 1202.5,
subdivision (a), which is $10 plus penalty assessments.  An odd number, I know.”  It does not appear there are any additional
“penalty assessments” on the abstract of judgment.  Thus, there is $10 at issue.  Defendant did not object to the imposition of
this $10 fine at trial.  Defendant
therefore forfeited the issue on appeal. 
(People v. Crittle (2007) 154
Cal.App.4th 368, 371 [“Since defendant did not raise the issue in the
trial court, we reject his contention that the fines must be reversed because
the court did not make a finding of defendant’s ability to pay them, and
nothing in the record shows he had the ability to pay”].) 

Defendant
claims he lacked notice of this issue because he had previously waived his
right to a probation report and requested immediate sentencing.  But Penal Code section 1202.5, subdivision
(a), is obviously in the publicly-available Penal Code.  Regardless of the existence of a probation
report, defendant had notice of Penal Code section 1202.5, subdivision (a),
prior to the sentencing hearing and he was entitled to object to the imposition
of the $10 fine based on his now-professed inability to pay.  Defendant did not do so and thereby forfeited
the issue.  

 

DISPOSITION

 

The
judgment is affirmed.

 

 

 

                                                                                    IKOLA,
J.

 

WE CONCUR:

 

 

 

MOORE, ACTING
P. J.

 

 

 

ARONSON, J.