P. v. Jenkins
Filed 8/26/13 P. v. Jenkins CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
TIMOTHY JENKINS,
Defendant and Appellant.
2d Crim. No. B241933
(Super. Ct. No. LA063888T)
(Los Angeles County)
Timothy Jenkins appeals from the
judgment entered after a jury convicted him of four counts of
Code, §§ 664, 192, subd. (a)),
name="_ftnref1" title="">[1]
four counts of shooting from a motor
vehicle at another person (former § 12034, subd. (c), now § 26100,
subd. (c)), and one count of shooting at an inhabited dwelling. (§ 246.) On two counts of attempted voluntary
manslaughter, the jury found true allegations that appellant had personally
inflicted great bodily injury.
(§ 12022.7, subd. (a).) On all
four counts of attempted voluntary manslaughter, the jury found true
allegations that appellant had personally used a firearm. (§ 12022.5, subd. (a).) On the four counts of shooting from a motor
vehicle at another person and the one count of shooting at an inhabited
dwelling, the jury found true allegations that appellant had personally and
intentionally discharged a firearm causing great bodily
allegations that the offenses had been committed for the benefit of a
years to life.
Appellant contends that the evidence
is insufficient to support the true findings on the gang allegations. He argues that the People failed to show that
the gang's "primary activities" qualify it as a "criminal street
gang" within the meaning of section 186.22, subdivision (f). We affirm but direct the trial court to
correct an error in the abstract of judgment.
Appellant
was a member of the Pacoima Piru Bloods (PPB).
In September 2009 appellant and members of his family went to a party at
a house. Some of the people at the party
were members of the Crips, a rival gang.
During the
party, a "commotion" occurred inside the house. Appellant and several other persons were
"acting out." A resident of
the house told appellant that she "didn't want no trouble out of"
him. Appellant and his companions left
the party. One of them yelled,
"Blood, it ain't over." They entered
a car, which "crept up" by the house where the party was
occurring. Someone inside the car said,
"What did you say, Blood?" A
hand came out of the open window and fired four gunshots. Appellant was the shooter.
When the
shots were fired, people were standing outside around the porch area of the
house. Two persons were struck by
bullets. Two bullets penetrated the
garage door. The garage was used as a
bedroom. At the time of the shooting, a
three-year-old girl was inside the garage.
The gang
expert was Officer Rex Ingram. He
testified as follows: During the previous year, he had kept track of two gangs,
one of which was PPB. As a gang
officer, he came into contact with gang members on a daily basis. Gang members are expected to "put in
work" for the gang, which "includes committing violent
crimes." Based on his personal
experience and information from other gang officers, the "primary
activities" of PPB are "murder, attempt[ed] murder, robberies,
weapons violations, narcotics sales, vandalisms, and any sort of
assault." A member of PPB was
convicted of an attempted murder committed in
December 2007. Another member was
convicted of six counts of robbery and one count of assault with a firearm
committed in January 2009.
We "review the whole record in
the light most favorable to the judgment to determine whether it discloses
substantial evidence - that is, 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.]" (
Cal.4th 1, 11.)
Qualify It as a "Criminal Street Gang"
To qualify
as a "criminal street gang," a gang must have "as one of its
primary activities the commission of one or more" statutorily enumerated
criminal acts. (§ 186.22, subd.
(f).) The criminal acts include robbery,
unlawful homicide, and narcotics sales.
(§ 186.22, subd. (e)(2)-(4).)
The attempted commission of the enumerated crimes also satisfies the
"primary activities" requirement.
(People v. Vy (2004) 122
Cal.App.4th 1209, 1227-1228 & fn. 16.)
In instructing the jury, the trial court mentioned the crimes of
robbery, murder, attempted murder, and narcotics sales.
"Sufficient
proof of the gang's primary activities might consist of evidence that the
group's members consistently and repeatedly have committed criminal
activity listed in the gang statute.
as occurred in [People v.]
605." (People v. Sengpadychith (2001) 26 Cal.4th 316, 324, first italics
in original, second italics added.) In
"requirement was satisfied by the testimony of a police gang expert who
expressed his opinion that the primary activities of the group in question were
drug dealing and witness intimidation, both statutorily listed crimes. [Citation.]" (
conversations he had with Gardeley
and fellow gang members, and on 'his personal investigations of hundreds of
crimes committed by gang members,' together with information from colleagues in
his own police department and other law enforcement agencies. [Citation.]"
Substantial evidence supports the
finding that PPB's primary activities included the commission of one or more of
the statutorily enumerated criminal acts.
Officer Ingram, a gang expert, opined that PPB's primary activities
included the commission of of murder, attempted murder, robbery, and narcotics
sales. His opinion was based on his
personal experience and information from other gang officers. Ingram had first-hand knowledge of PPB's
activities since, for the previous year, he had been keeping track of PPB and
one other gang. He had come "into
contact with gang members every day."
Ingram testified: "I have a pretty good relationship with the gang
members in each gang, and we . . . have casual conversations about various
things, including history of the gang, lifestyle." Ingram "also interview[ed] them on
crimes, detentions, arrests, [and] as victims of crimes." Ingram continued: "When a patrol officer makes an arrest
or has a victim that comes to the station . . . for a gang-related crime, I
make it my habit to go and talk to that person to see exactly what
happened." "The testimony of a
gang expert, founded on his or her conversations with gang members, personal
investigation of crimes committed by gang members, and information obtained
from colleagues in his or her own and other law enforcement agencies, may be
sufficient to prove a gang's primary activities. [Citations.]" (People
v. Duran (2002) 97 Cal.App.4th 1448, 1465.)
In re Alexander L. (2007) 149 Cal.App.4th 605, is
distinguishable. There, a gang expert
was asked about a gang's primary activities.
He 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.' No further questions were
asked about the gang's primary activities on direct or redirect
examination." (Id., at
p. 611.) The appellate court
concluded that this testimony was insufficient to establish the "primary
activities" requirement because it lacked an adequate foundation: "No
specifics were elicited as to
had obtained the information." (
at pp. 611-612.) The court also noted:
The expert "`did not directly testify that criminal activities constituted
[the gang's] primary activities. Indeed,
on cross-examination, [he] testified that the vast majority of cases connected
to [the gang] that he
graffiti related." (
Unlike the expert in
testified that PPB's primary activities included the commission of statutorily
enumerated criminal acts. In addition, a
proper foundation was laid for Ingram's testimony. During his one year as a gang officer, he had
conversed with PPB members, personally investigated gang-related crimes, and
obtained information about PPB from other gang officers. (See People
v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [expert's "eight
years dealing with the gang, including investigations and personal
conversations with members, and reviews of reports suffices to establish the
foundation for his testimony"].)
Thus, based on Ingram's expert testimony, a reasonable trier of fact
could find beyond a reasonable doubt that PPB's primary activities qualified it
as a criminal street gang.
Moreover, the People presented
evidence of specific offenses committed by PPB members. One PPB member had been convicted of
attempted murder and another had been convicted of six counts of robbery. "Past offenses . . . have some tendency
in reason to prove the group's primary activities, and thus . . . may be
considered by the jury on the issue of the group's primary activities. [Citation.]" (People
v. Duran, supra, 97 Cal.App.4th
at p. 1465.)
For count 9,
shooting at an inhabited dwelling (§ 246), the abstract of judgment
contains an error not mentioned by either party. The court considered count 9 to be "the
controlling count in this case."
In view of the true finding on the gang allegation, the court sentenced
appellant to "life in prison, with the minimum eligibility of parole of 15
years," pursuant to section 186.22, subdivision (b)(4)(B).
life for the section 12022.53, subdivision (d) enhancement. The court stated: "So the total term on
count nine is life; minimum eligibility of parole, 15 years; followed by 25 to
life."
The abstract
of judgment conflicts with the sentence pronounced by the court on count
9. It shows that, for the violation of
section 246, appellant was sentenced to life imprisonment plus 25 years to life
for the section 12022.53, subdivision (d) enhancement. The abstract also shows that the gang enhancement
was stayed. The abstract refers to the
gang enhancement as section "186.22(B)(1)(C)." Under "Other orders" on page 2, the
abstract states: "Defendant is sentenced to life in prison with the
minimum eligibility of parol[e] of 15 years." The abstract does not mention the correct
gang enhancement provision, section 186.22, subdivision (b)(4)(B).
"[W]hen,
as here, the crime [of shooting at an inhabited dwelling in violation of
section 246] is committed to benefit a criminal street gang, the punishment is
life imprisonment, with a minimum parole eligibility of 15 years. (§ 186.22(b)(4).)" (People
v. Jones (2009) 47 Cal.4th 566, 572; see also People v. Sok (2010) 181 Cal.App.4th 88, 96 ["Section 186.22,
subdivision (b)(4), not subdivision (b)(1)(C), is applicable if the felony
committed to benefit a criminal street gang is 'a . . . felony violation of
Section 246' "].) "[T]he
15-year minimum term prescribed by section 186.22(b)(4) is not a sentence
enhancement" because "it is
not an 'additional term of imprisonment' and it is not added to a 'base term.'
" (People v. Jefferson (1999) 21 Cal.4th 86, 101.) "[T]he 15-year minimum term in section
186.22(b)(4) sets forth an alternate penalty for the underlying felony
itself . . . ." (
The judgment
is affirmed. The trial court is directed
to correct the abstract of judgment for count 9 (shooting at an inhabited
dwelling in violation of section 246) to show a penalty for the underlying
offense of life imprisonment with a minimum parole eligibility period of 15
years pursuant to section 186.22, subdivision (b)(4)(B), plus an enhancement of
25 years to life pursuant to section 12022.53, subdivision (d). The court is further directed to strike the
notation that an enhancement under section 186.22(b)(1)(C) was stayed. A copy of the corrected abstract shall be
forwarded to the
Department of
Corrections and Rehabilitation.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT,
P.J.
PERREN,
J.
Martin
Larry Herscovitz, Judge
Superior
Court County of Los Angeles
______________________________
Allison
H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William
Bilderback II, Supervising Deputy Attorney General, Marc A. Kohm, Deputy
Attorney General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal Code.
name="_ftn2" title="">[2] The court instructed that a criminal street gang must
have, "as one or more of its primary activities, the commission
narcotics." But a few paragraphs
later, the court specified the primary activities as "the commission
