P. v. Johnson
Filed 5/15/13 P. v. Johnson CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
RONNELD
JOHNSON et al.,
Defendants and Appellants.
B240370
(Los Angeles County
Super. Ct. Nos. BA378893, TA120799)
APPEAL
from judgment of the Superior Court of
County, Laura R. Walton, Judge. Modified and affirmed.
Rachel
Varnell, under appointment by the Court of Appeal, for Defendant and Appellant
Ronneld Johnson.
Katharine
Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and
Appellant Jonathan King.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, James William Bilderback II, Kathy
S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
Ronneld Johnson and Jonathan
King appeal from the judgment entered after their jury conviction of second
degree robbery. Appellants argue the
gang allegations were not supported by substantial evidence. We disagree.
Additionally, King argues, and we agree, that two prior prison term
enhancements should have been stricken rather than stayed. We modify the judgment as to King and, as
modified, affirm the judgment as to both appellants.
On
November 9, 2011, the
victims Adan Guerrero and Gerardo Coronado were doing landscaping work at a
house in the area of 111th and Anzac or Grape Streets in Southeast
Los Angeles. Guerrero was
outside the house. Appellants drove by
twice in a black two-door Buick Riviera without
license plates. They then pulled into an
alley next to the house and approached Guerrero, who grabbed a shovel for
protection. One of them said, ‘“Put that
shit down.â€â€™ Johnson pointed a
semiautomatic gun in Guerrero’s face and demanded his wallet, while King
snatched Guerrero’s gold chain.
Afterwards,
Johnson jumped over a low fence enclosing the house, pointed the gun at
Coronado, who was behind the fence, and took Coronado’s
wallet. Meanwhile, King asked Guerrero
for his money, and Guerrero gave him $15 and a cell phone. Johnson jumped back over the fence,
approached Guerrero with the gun and said, ‘“Get the fuck back.â€â€™ One of the appellants said, ‘“Hurry up cuz,â€â€™
but Guerrero was unsure whether that was directed at him or the other
appellant. They then got back into the
car and left.
Guerrero
reported the robberies to police. The
next day, appellants were observed in a black Buick with yellow paper plates at
114th Street and Gorman
Avenue, in the area of the Imperial
Courts Housing Project. They were pulled
over, and a semiautomatic gun was recovered from the car’s engine block.
In an
information filed in December 2011, each appellant was charged with two counts
of second degree robbery (Pen. Code, § 211),
stemming from the robberies that occurred on November 9, 2011. Gang and gun enhancement allegations were
attached to these counts as to both appellants.
(§§ 186.22, subd. (b)(1)(C); 12022.53, subd. (b) & (e)(1).) A third count of
Johnson, stemming from a separate robbery that occurred on September 23, 2011.
prior strike conviction. (§§ 1170.12,
subd. (a)-(d), 667, subd. (b)-(i).) In
addition, King was alleged to have suffered one prior serious felony conviction
(§ 667, subd. (a)(1)) and two other convictions for which he served prison
terms (§ 667.5, subd. (b)).
In
March 2012, a jury found appellants guilty as charged and found the gang and
gun allegations to be true. The trial
court found the prior conviction and prison term allegations to be true. The court denied appellants’ oral motions to
strike their prior strike convictions.
Johnson
was sentenced to an aggregate term of 28 years, eight months. The sentence consisted of the upper term of
five years, doubled to 10 years pursuant to the Three Strikes law, plus 10
years for the gun enhancement as to count 1; one year (one-third midterm),
doubled to two years pursuant to the Three Strikes law, plus three years, four
months (one-third of 10 years) for the gun enhancement as to count 2, all to
run consecutive to the sentence on count 1; and one year, doubled to two years
pursuant to the Three Strikes law, as to count 3, to run consecutive to the
sentence on count 2. In addition, the
court found Johnson in violation of probation in another case, and sentenced him
to a 16-month term to run consecutive to the sentence in this case.
King
was sentenced to a total of 30 years, 4 months in prison. The sentence consisted of five years, doubled
to 10 years pursuant to the Three Strikes law, plus 10 years for the gun
enhancement as to count 1; one year, doubled to two years pursuant to the Three
Strikes law, plus three years, four months for the gun enhancement as to count
2; plus five years pursuant to section 667, subdivision (a)(1), to run
consecutive to the sentence on count 1.
The court stayed the sentences on King’s two prior prison term
enhancements (§ 667.5, subd. (a)).
The
court did not impose a separate section 186.22 gang enhancement on either
appellant because section 12022.53, subdivision (e)(2) prohibited the
imposition of the enhancement in this case.
This
timely appeal followed.
I
The gun
enhancement, based on section 12022.53, subdivision (e)(1), was predicated on a
violation of section 186.22, subdivision (b)(1). That statute applies to “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 . . . .†Appellants argue the jury’s true findings on
the gang allegations are not supported by substantial evidence.
“In
considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. (People v. Wilson (2008) 44 Cal.4th 758, 806.) We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from the
evidence. (Ibid.) If the circumstances
reasonably justify the trier of fact’s findings, reversal of the judgment is
not warranted simply because the circumstances might also reasonably be
reconciled with a contrary finding. (
27.) ‘A reviewing court neither reweighs
evidence nor reevaluates a witness’s credibility.’ (Ibid.)†(People
v. Albillar (2010) 51 Cal.4th 47, 59–60 (Albillar).)
A.
King was a self-admitted long-time
member of the Project Watts Crips. His
numerous tattoos, including those on his face and hands, were consistent with
his membership in that gang. Johnson had
self-identified as a member of the 58th Street Neighborhood Crips in 2006. Tattoos on his body, including his hands,
identified him as a member of the East Coast Crips.
The prosecution gang expert, Officer
Jose Carias, testified the Project Watts Crips is a predominantly African American
gang that has about 350 members. It
claims a territory bounded by Alameda Street on the east, Santa Ana Boulevard on the north, Wilmington Avenue on the west, and Imperial Highway on the south. Its “hub†is the Imperial Courts Housing
Project. Robbery is among the primary
activities of the Project Watts Crips.
Officer Carias testified gang
members typically commit crimes together, and it is not uncommon for members of
different Crips sets to join in the commission of crimes. Although the officer did not recall any
specific examples of such alliances, he explained that members of different
Crips sets sometimes have family ties or are friends from school or juvenile
hall and commit crimes together.
Officer
Carias explained that gang culture has evolved, and “the norm nowadays†is that
gang members commit crimes without shouting out their gang names or throwing
out hand signs. They refrain from
announcing their gang affiliation to avoid assisting police in identifying
them.
When asked
a hypothetical question based on the facts of this case, Officer Carias opined
the robberies were committed primarily for the benefit of the Project Watts
Crips because the area of 111th, Anzac, and Grape Streets, where the robberies
were said to have occurred, is within that gang’s territory. The officer agreed that the territory claimed
by the East Coast Crips was four or five miles away. He stated that “cuz†was a word commonly used by Crips gang members,
and it identified appellants as Crips. He noted that
the fact appellants took their time to rob two different victims in broad
daylight without attempting to hide their identities indicated their comfort
level within gang territory. The officer
explained that violent crimes instill fear in the community and bestow respect
on the gang member and the gang itself.
Gang members typically brag about the crimes they have committed, but
the officer did not know whether anyone had bragged about the particular
robberies with which appellants were charged.
B.
Section 186.22, subdivision (b)(1)
initially requires that a defendant commit a felony “for the benefit of, at the
direction of, or in association with any criminal street gang . . . .†We find sufficient evidence to support the elements
that the felony be committed “for the benefit of . . . or in association with
any criminal street gang.â€
1.
“In Association†Element
When gang members commit a crime in
concert, they do so in association with a gang.
(Albillar,
three Southside Chiques gang members, who had family ties, argued that their
rape of an acquaintance in concert failed to satisfy the first prong of section
186.22, subdivision (b)(1). (
frequently have relatives who also are gang members, “to presume, as defendants
urge, that family ties necessarily predominate over gang affiliation when gang
members who are related commit crimes together would substantially eviscerate
the gang enhancement.†(
When presented with competing inferences, the jury was entitled to
conclude that the rape was “gang related, not family related.†(Ibid.)
The Albillar court noted that ‘“it is conceivable that several gang
members could commit a crime together, yet be on a frolic and detour unrelated
to the gang.â€â€™ (Albillar, supra, 51
Cal.4th at p. 62, quoting People v.
Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales).) King argues
Officer Carias’ testimony that members of different gangs form personal ties in
school and juvenile hall supports the inference that appellants committed the
robberies as friends, rather than as gang members. But the officer offered this testimony as an
explanation why members of different gangs commit crime together as gang
members, not as friends. He also
testified, based on the hypothetical, that the robberies here were committed
“in concert and thus in association with another gang member.†Notably, the officer did not testify what
personal ties appellants actually had.
Thus, the record in this case contains even less evidence than that in
ties or the significance of such ties to their criminal activity. (See Albillar,
at p. 62.) Even were the evidence to
support an inference that appellants were indeed friends and that they
committed the robberies as friends, rather than as members of two different
Crips sets, that was simply one, but not the only, inference the jury could
draw from the evidence. (See
gang member was defendant’s brother-in-law does not cancel his gang
membership].)
In supplemental briefing, King argues
the jury should have been “informed†that the crime is not gang related if
appellants “were on a ‘frolic and detour’ which was not related to gang
activity, but rather occurred because appellants were friends.†Certainly, if King’s defense counsel believed
that the evidence supported it, he could have argued to the jury that
appellants committed the crimes as friends rather than as gang members. But to the extent King suggests the jury
should have been instructed with the “frolic and detour†language from
is required. To say that two defendants
are on a “frolic and detour unrelated to the gang†when they commit a crime is
simply another way of saying that the crime is not “gang related,†i.e. not
“committed for the benefit of, at the direction of, or in association with a
criminal street gang.†(
To support the expert’s testimony
that it is not unusual for members of different gang factions to commit crimes
together, respondent cites People v.
Valdez (1997) 58 Cal.App.4th 494, 503–504 (expert testimony offered to
show members of different Norteno gangs joined forces to attack Surenos for
benefit of their own and each other’s gangs), and People v. McDaniels (1980) 107 Cal.App.3d 898, 902 (gang expert
testified “it was unusual for various Cripts factions to band together when
taking retaliatory action, although he had experienced situations where such
alliances had been madeâ€). Appellants
argue these cases are distinguishable since retaliation against another gang
clearly is a gang-related activity, while the robberies in this case are not.
The cases cited by respondent are not
a measuring rod for what constitutes sufficient evidence on the subject of
crimes committed in association with members of another gang faction. They do not support appellants’ conclusion
that, without evidence that they retaliated against a rival gang, Officer
Carias had no factual basis for opining they acted in concert as gang
members. In each case, the court held only
that expert testimony was proper and helpful to the jury. (See People
v. Valdez, supra,
58 Cal.App.4th at pp. 508–509; People
v. McDaniels,
904–905.) The expert’s testimony in this
case was based on appellants’ known gang affiliation, which was evident from
their tattoos, some of which were on exposed parts of their bodies. It also was based on the manner in which the
robberies were committed, which indicated appellants acted in concert. Coupled with his explanation that gang
members’ personal ties spill over into street crime, the evidence was
sufficient to establish that each defendant committed the robberies in
association with a gang member.
2.
“For the Benefit†Element
Officer Carias also opined that the
robberies were for the benefit of the Project Watts Crips since they occurred
on that gang’s territory. “Expert
opinion that particular criminal conduct benefited 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’
within the meaning of section 186.22(b)(1).
[Citations.]†(
Appellants argue the expert’s
conclusion that the robberies were for the benefit of the Project Watts Crips
was unsupported since there was no evidence that the victims thought appellants
were gang members, that appellants announced their gang affiliation, that
anyone saw them commit the robberies, or that they bragged about the
crimes. While these were among the
factors also found missing in People v.
Ochoa (2009) 179 Cal.App.4th 650, 662 (Ochoa), on which appellants rely, other aspects of the case make it
distinguishable. The defendant in
and there was no evidence the carjacking occurred on the territory of his or a
rival gang. (Id. at p. 653, 662.)
Here, King argues there was no
evidence the robberies took place on the territory of the Project Watts Crips
even though, based on the hypothetical, the expert opined that they did. Guerrero testified he did not know the
address of the property where the robberies occurred. He believed it was located at the corner of
111th Street and another street. When he
reported the robberies, an officer looked up the location on a map and told him
the cross street was Anzac. The
investigating officer testified that at some point he realized Anzac Street
does not intersect with 111th Street.
There was evidence Anzac Street stops at 110th Street, but Grape Street,
to the east of Anzac, continues south to 111th Street; the distance between
Anzac and Grape Streets is one city block, and the two properties on the block
are divided by an alley.
King claims that since it was unclear
precisely where the robberies occurred, there was no evidence they occurred
within gang territory, and that the prosecutor admitted as much in closing
argument. We disagree. The prosecutor argued the crime occurred on
111th Street near Anzac or Grape, “within or near†the territory of the Project
Watts Crips. That statement cannot be
characterized as a concession that the robberies occurred outside gang
territory. In addition, the gang expert
affirmatively placed the area of 111th Street in the vicinity of either Anzac
or Grape Street to be within the Project Watts Crips’ territory. He testified that the Imperial Courts Housing
Project is the gang’s “hub,†and that gang members tattoo themselves with the
names of streets within the projects, such as “112 Street†or “115 Street.†Although Guerrero was unsure about the precise
address, he testified the “projects†were “a couple of blocks down†from the
site of the robberies. Thus, while
placing the robberies at 111th and Anzac Streets was successfully challenged,
there was evidence that they occurred in the area of 111th Street near the
projects, from which the jury could infer they occurred on gang territory.
This case is distinguishable from
have found it significant that the defendant did not self-identify as a gang
member during the commission of the crime.
(See, e.g., In re
Daniel C. (2011) 195 Cal.App.4th 1350, 1363–1364; People v. Albarran (2007) 149 Cal.App.4th 214, 227.) But, here, there was expert testimony that the current norm
is for gang members not to announce their identity. The expert explained that gang
practices have evolved in order to make it more difficult for police to
identify gang members who commit crimes that nevertheless benefit the
gang. In light of that testimony, we
cannot conclude that self-identification during the commission of a crime is an
essential requirement as such a requirement would allow gang members to get
around the gang enhancement.
Additionally,
while neither victim
noticed appellants’ tattoos, there was evidence each had tattoos in visible places,
such as on the face or the hands. The
word “cuz†additionally evidenced their Crips membership. And while there was no evidence that either
defendant bragged about these robberies, Officer Carias testified that their
committing violent crimes in gang territory benefited the gang, as evidenced in
the level of comfort with which appellants proceeded to rob the two victims at
gunpoint and in broad daylight. Johnson
contends appellants’ comfort is attributable to their extensive criminal
record. But the record does not show
that appellants’ prior convictions were before the jury, nor do they render the
expert’s alternative explanation inherently improbable.
We reject
the suggestion that the robbery of two victims at gunpoint is not sufficiently
violent to benefit the gang, in light of evidence that robbery is among the
primary activities of the Project Watts Crips.
In contrast to In re Daniel C.
(2011) 195 Cal.App.4th 1350, 1364, this is not a case of a simple theft turned
into robbery by happenstance. In that
case, a stolen liquor bottle broke and the defendant used a piece of it to
strike the loss prevention officer who intervened. (Ibid.) Here, in contrast, the robberies were not
accidental since, from the beginning, appellants’ actions showed that they
intended to commit robbery at gun point.
We conclude
that there was sufficient evidence to support the expert’s conclusion that the
robberies, as presented in the hypothetical, were for the benefit of the
Project Watts Crips.
C.
Section 186.22(b)(1) also requires
that a defendant commit the gang-related felony “with the specific intent to
promote, further, or assist in any criminal conduct by gang members . . .
.†Criminal conduct includes “the
current offenses—and not merely other criminal
conduct by gang members.†(
The scienter requirement “applies to any
criminal conduct, without a further requirement that the conduct be ‘apart
from’ the criminal conduct underlying the offense of conviction sought to be
enhanced.†(Id. at p. 66.) Since the
first prong of section 186.22(b)(1) “already requires proof that the defendant
commit a gang-related crime, . . .â€
the second prong does not additionally require “that the defendant act with the
specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote,
further, or assist criminal conduct by gang
members. [Citations.]†(Id.
at. p. 67.) “[I]f substantial evidence
establishes that the defendant intended to and did commit the charged felony
with known members of a gang, the jury may fairly infer that the defendant had
the specific intent to promote, further, or assist criminal conduct by those
gang members.†(Id. at p. 68.) Here, there
was evidence that appellants were gang members, that they intended to rob the
victims, and that they aided and abetted each other in doing so. Under Albillar,
the evidence was sufficient to establish the second prong of section
186.22(b)(1).
Relying principally on
843 (Ramon), Johnson argues the fact
that appellants committed a crime in gang territory is insufficient to
establish that he personally acted with specific intent to promote the Project
Watts Crips, of which he was not a member.
The Ramon court found the fact
that the defendant was with another gang member in gang territory was
insufficient to establish that he committed the crimes of receiving a stolen
vehicle and possession of firearm by a felon with “the specific intent to
promote, further, or assist criminal conduct by gang members.†(Id.
at pp. 846, 851) The court noted the analysis “might be different if the
expert’s opinion had included ‘possessing stolen vehicles’ as one of the
activities of the gang.†(
is distinguishable since, here, there was evidence robbery was one of the
activities of the Project Watts Crips.
And, as we have explained, specific intent to promote a gang is not
required; what is required is that “the defendant intended to and did commit
the charged felony with known members of a gang.†(Albillar,
supra, 51 Cal.4th at p. 68.)
The evidence was sufficient to
support true findings on the gang allegations as to both appellants.
II
King argues the trial court
improperly stayed his two one-year prison term enhancements pursuant to section
667.5, subdivision (b).
Section 667.5, subdivision (b) provides
for a one-year enhancement of the prison term for each “prior separate prison
term served for any felony.†Once the
prior prison term is found true, “the trial court may not stay the one-year
enhancement, which is mandatory unless stricken. [Citations.]â€
(People v. Langston (2004) 33
Cal.4th 1237, 1241.)
In their sentencing
memorandum, the People calculated King’s sentence as totaling 32 years, four
months, including the two one-year prior prison term enhancements. The trial court followed this memorandum in
all respects, except that it stayed these two enhancements and announced King’s
sentence as totaling 30 years, four months.
Respondent agrees this was error, but argues we should remand the case
so the trial court could exercise its discretion to either strike or impose the
two enhancements. We are satisfied that
the trial court did not intend to impose two additional one-year terms, and
order the prior prison term enhancement stricken. King’s abstract of judgment should be amended
accordingly.
As to King, we modify the judgment to strike the two
one-year prison term enhancements (§ 667.5, subd. (b)). The clerk of the superior court is directed
to prepare and forward to the Department
of Corrections and Rehabilitation an amended abstract of judgment to
reflect this modification. As modified, the judgment is affirmed as to
both appellants.
EPSTEIN,
P. J.
We
concur:
MANELLA, J.
SUZUKAWA, J.
do not review the evidence supporting Johnson’s conviction on that count.
