P. v. Jackson

Filed 4/4/08 P. v. Jackson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed in part and reversed in part.

Susan L. Ferguson for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendant Cedric Howard Jackson of 8 counts of conspiracy to commit robbery, 13 counts of second degree robbery, 1 count of aggravated assault, and 8 counts of street terrorism. It also found true defendant had committed 22 of the crimes for the benefit of a criminal street gang and that a principal used a firearm in 12 of the offenses. The court sentenced him to 30 years and 8 months in state prison.

Defendant appeals, contending the evidence was insufficient to prove the gang allegations and five of the crimes. We agree with the latter and reverse his convictions on counts 1 through 5, which moots defendants contention the court erred in imposing the upper term on count 2. We also agree the court erred in imposing enhancements both under Penal Code section 186.22, subdivision (b) (all further statutory references are to this code) and section 12022.53, and remand the case for resentencing. In all other respects, the judgment is affirmed.

FACTS

At 9 p.m. on October 20, 2005, three African-American men wearing dark jackets with hoods approached an FM Food Store in Buena Park. The cashier, Abdullah Mahmud, was outside smoking a cigarette but could not see their faces because of their hoods. When asked if he worked there, he said yes and started walking towards the entrance. As he did so, he felt something on his back, looked down, and saw a gun. The men demanded money and cellular phone cards; Mahmud gave them the cash from the register and a $50 phone card. They also took the security camera videotape.

Co-worker Eligio Hernandez Ochoa was in the back of the store when a tall African-American man pointed a gun at him and told him to lie on the floor. Ochoa complied but the man kicked him and hit him in the head with the gun when he tried to get up. Ochoa later told police defendant was not the man who had hit him.

That same night around the same time, three African-American men wearing black hooded sweatshirts entered Rainbow Liquor in Anaheim and demanded money. One of the men had a gun. The cashier, Yuping Ma, gave them cash from the register and his pocket. The men smashed the surveillance machine and left through a back door. Ma identified defendant in a photographic lineup as one of the men.

On October 24 about 8 p.m., three African American or Hispanic men wearing black sweaters with hoods entered Tacos Mexico in Buena Park while a fourth remained at the door. One man pulled out a gun and the men took cash from two customers. One customer identified defendant as one of the robbers.

An hour later, two African-American men wearing black hooded sweatshirts walked into a 7-Eleven store in Stanton; another one stood outside. They demanded money from the cash register and the cashier, Davinder Singh. Singh gave them the cash from the register and his wallet.

The next night about 8:45 p.m., three men went to an Arco gas station in Torrance. One was dressed in a black hooded sweater with a cap, another had on a coffee colored shirt, and the third wore a cream-colored jacket with dark coffee-colored sleeves. As one remained by the door, the other two men, one of whom was armed, walked into the office and announced a holdup. After rummaging around the office and not finding anything, the men took the cash from the register. Bony Torres, the cashier, identified the coins later found in defendants vehicle as the ones taken from the gas station.

About two hours later, three men entered JJ Liquor in Fullerton and took employee Soo Chois wallet. They also took a bottle of Hennessy Cognac, several hundred dollars, and some receipts. One of the men, an African-American wearing a hooded jacket, pointed a gun at another employee, Hyung Rok Ham, searched his pockets, and took his money.

Around the same time, two men held up a Texaco gas station in Buena Park while a third man stood by the door. Upon entering the station, one of the men showed a gun to employee Alexander Galicinao and whispered, This is a holdup. Give me your money. Galicinao gave the men the money from the register. Although the men told him to open the safe, he told them it was locked and they took cigarettes instead.

At about 1 a.m., Yoshi Woo was working as a cashier at a 7-Eleven in Fullerton when two African-American men wearing dark hooded sweatshirts entered; one had a gun. They ordered Woo to open both cash registers, which he did. They took a few hundred dollars, two blue bags, alcohol, and cigarettes.

Police Officer Pat Carney responded to the Texaco robbery, arriving shortly after 11 p.m. He and his partner viewed a video surveillance tape of the robbery, which showed the suspects wearing oversized white T-shirts and black hooded sweatshirts; one had on two-toned gray shorts. During Carneys investigation, the 7-Eleven in Fullerton was held up and he headed toward it.

When he was a few miles away, Carney saw a Toyota Camry coming from the direction of the 7-Eleven. He made a U-turn and followed it until backup units arrived. At that time, he stopped the vehicle because it was weaving and going 30 miles per hour in a 45-mile zone, causing other vehicles to pass it.

Defendant was the driver and the other three occupants were Jerry Gardner, James Ransom, and Otis Hart. Hart had on black and gray two-toned shorts, while Random and Gardner were wearing oversized white T-shirts. Carney saw a bagful of money behind the glove compartment, a gun under the carpet on the passenger side just below the stereo, a blue money bag, and a bottle of whiskey.

After the vehicle was impounded, Detective Stephen Dickerson found bullets, gloves, a baseball cap, a brown jacket, three hooded sweatshirts, a gift pack of Hennessy Cognac, a bag filled with cash, coins, and register receipts, plus two blue vinyl bags containing lottery tickets, receipts, coupons, and a lottery shift worksheet dated October 24 from the 7-Eleven in Fullerton. He also found two guns hidden in a center console compartment, a JJ Liquor store receipt dated October 25, and a CD case with the words Bounty Hunter Watts.

Defendant admitted stopping at Texaco and waiting in the car while Hart, Ransom, and Gardner went inside. He denied seeing any guns or cash when they returned. He also denied knowing they were committing robberies. But later defendant noticed a roll of coins and asked them about it. They said they got a lick, meaning they committed a robbery. Defendant did not believe them and drove them to the 7-Eleven in Fullerton. He knew they had robbed the store when they came back with liquor because they were too young to buy alcohol.

Defendant did not see guns when the other three went into the Texaco but he saw the guns when the police pulled them over. He admitted being the driver for the robberies of the liquor store and Tacos Mexico a few days earlier. They split the money.

Later, defendant conceded he also drove one of the two cars used during the robbery of the 7-Eleven on October 24 and that Gardner and Hart were with him. He said they had driven there after committing another robbery. They wore dark clothing and one of them had a gun. He said he waited in the car so he could drive them away, and received $200 for his part in the robbery.

Defendant further admitted he was the driver in two uncharged robberies of a Village Liquor and a Papa Johns. The court admonished the jury this evidence was being admitted for the limited purpose of showing intent.

In a videotaped interview, defendant showed gang signs for the Bloods and Bounty Hunters, also a Bloods gang, and explained the difference between them. Gardner, Hart, and Ransom had tattoos indicating they were members of Westside Piru, another Bloods gang. Defendant also had a tattoo but said it was of his father.

According to Sergeant Frederick Reynolds of the Los Angeles County gang investigation unit, Westside Piru is a criminal street gang whose primary activities are murder, rape, robbery, burglary, auto theft, vandalism, narcotics sales, and criminal threats. He testified Gardner and Ransom were members and that Harts tattoos were consistent with gang membership.

Centerview Piru is a gang located in Carson that is closely aligned with Westside Piru. A person could be a member of both gangs. One way to become a gang member is to put[] in work by committing crimes with established gang members.

Reynolds initially testified defendant was an active member of Westside Piru based on the number of crimes, the manner in which they were committed, and the individuals that he committed [them] with. On cross-examination, he clarified he meant defendant affiliated with Westside Piru and was a Centerview Piru gang member.

According to Reynolds, defendant lived within the area Centerview Piru claimed as its turf. Additionally, although defendant was not identified as a gang member before his arrest, gang members do not go on crime sprees with non-gang members and the driver is a highly trusted position. Reynolds opined the crimes were committed for the benefit of both Westside Piru and Centerview Piru, which gained financially, had their status enhanced, and instilled fear in the community. The persons committing the crimes would be known as Jackers, which is slang for someone who commits robberies and is highly regarded in gang subculture.

DISCUSSION

1.Sufficiency of Evidence Regarding Gang Allegations

Defendant contends the evidence was insufficient to establish the gang allegations. We disagree.

Section 186.22, subdivision (b)(1) imposes an enhanced sentence for any person who is convicted of a felony 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 . . . . A trier of fact can rationally infer that a crime was committed in association with a gang where, as here, the defendant committed the crimes in concert with other gang members. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)

Citing Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, defendant argues the second part of the statute requires proof of the specific intent to further some criminal purpose of the gang other than the charged offense. But federal decisional authority is neither binding nor controlling in matters involving state law. (Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 55.) Moreover, California courts have rejected Garcia as incorrectly decided. (See People v. Romero (2006) 140 Cal.App.4th 15, 19; People v. Hill (2006) 142 Cal.App.4th 770, 774.) We decline to follow Garcia as well.

The statute does not require a specific intent to benefit the gang, nor does it require the specific intent to further criminal activity other than the charged offense. Rather, the statutes plain terms require the specific intent only to promote, further or assist in any criminal conduct by gang members. ( 186.22, subd. (b)(1); People v. Morales, supra, 112 Cal.App.4th at p. 1198.) And committing crimes in concert with people known to be gang members supports the inference that defendant specifically intended to assist them. (People v. Morales, supra, 112 Cal.App.4th at pp. 1198-1199.)

In his reply brief, defendant challenges this interpretation of the statute as unconstitutional because it violates his right to freedom of association. We generally will not consider an issue raised for the first time in a reply brief. (People v. Bonilla (2007) 41 Cal.4th 313, 349-350.) But even if properly raised, the California Supreme Court has already concluded section 186.22, subdivision (b)(1) punishes conduct, not group membership. (People v. Loeun (1997) 17 Cal.4th 1, 11.)

Defendant is correct that expert testimony alone is insufficient to find the crimes were gang related. But that testimony was coupled with other evidence from which the jury could reasonably infer the crime was gang related. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931.) In particular, defendant admitted he drove the getaway car for a string of robberies committed by members of Westside Piru and that he received his portion of the proceeds from some of the robberies. This evidence supports the inference that defendant committed the robberies in association with known gang members and acted with the specific intent to assist them in committing the robberies. (People v. Morales, supra, 112 Cal.App.4th at pp. 1198-1199.)

The fact there was evidence that might also be reasonably reconciled with a finding defendant was not a Centerview Piru gang member does not, as he contends, warrant reversal of the gang enhancements. We do not reweigh evidence or redetermine issues of credibility. [Citation.] (People v. Ferraez, supra, 112 Cal.App.4th 925, 931.) The evidence is sufficient to support the gang enhancements. Given our conclusion, we reject defendants contention the gun enhancement should be reversed because the evidence is insufficient to prove the gang enhancements.

2. Sufficiency of Evidence Regarding FM Food Store Robbery

Defendant persuasively argues there was insufficient evidence to support counts 1 through 5 relating to the robbery of the FM Food Store because Mahmud and Ochoa were unable to identify the perpetrators, Ochoa testified defendant was not the man who had hit him, and neither saw any getaway car. Defendant also denied involvement or knowledge of the FM Food Store robbery and provided an alibi.

The Attorney General responds that defendants identity may be established by proof of motive. He fails to explain, however, what that motive was. Rather, he argues the other robberies were committed in a similar fashion and police found items taken from the various locations as well as three hooded sweatshirts inside defendants car. He also points out defendant admitted to committing some of the robberies and splitting the proceeds from the robberies.

This is essentially an argument that defendant must have committed the FM Food Store robbery on October 20 because he committed the robberies on October 24 and 25. As defendant notes, the only similarity is that the crimes were committed by African-American males with guns. . . . Sometimes there were two males; sometimes three; sometimes four. Sometimes they wore dark hooded sweaters, other times they wore baseball caps and cream colored clothing.

The only evidence linking defendant to October 20 was the testimony of Yuping Ma, the victim of the uncharged robbery of Rainbow Liquor, who identified defendant as one of the robbers. But Rainbow Liquor is located on the corner of Western and Ball in Anaheim while the FM Food Store is located on La Palma Avenue in Buena Park. Both robberies occurred at around 9 p.m., and the record contains no evidence how far apart the two locations were or how long it would take to get from one to the other.

Thus, even if the jury believed Mas testimony defendant was one of the Rainbow Liquor robbers, the evidence is insufficient to sustain defendants convictions related to the FM Food Store robbery. His convictions on counts 1 through 5 are reversed and the related enhancements stricken.

3. Imposition of Enhancements Under Sections 186.22 and 12022.53

Defendant asserts it was error to impose sentence enhancements both under section 186.22, subdivision (b) and section 12022.53, subdivision (b). The Attorney General concedes the court improperly imposed both the gang enhancements and the firearm enhancements on counts 2, 3, 7, 8, 14, 17, 18, 21, 22, 26, and 37 and that only the firearm enhancements were proper for those counts. Defendant implicitly concedes this is correct by not contesting it in his reply brief. With the enhancements on counts 2 and 3 already stricken, the gang enhancements on counts 7, 8, 14, 17, 18, 21, 22, 26, and 37 are also ordered stricken.

4. Imposition of Upper Term

Defendant contends his sentence to the upper term on count 2 violates his right to a jury trial as interpreted in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) because the complaint did not allege any aggravating factors and the jury made no findings as to any. Our reversal on count 2 moots this issue.

DISPOSITION

The judgment of conviction on counts 1 through 5 for conspiracy to commit robbery (count 1), robbery (counts 2 and 3), aggravated assault (count 4), and street terrorism (count 5) are reversed for insufficiency of the evidence (see People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 72 [when conviction reversed for insufficient evidence, the defendant may assert double jeopardy claim to bar retrial)] and all related enhancements stricken. The gang enhancements on counts 7, 8, 14, 17, 18, 21, 22, 26, and 37 are also stricken. The case is remanded for resentencing. In all other respects, the judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

ARONSON, J.

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