P. v. Martinez

Filed 2/3/09 P. v. Martinez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Gregg L. Prickett, Judge. Affirmed in part, reversed in part, and remanded for resentencing.

Melissa Hill, under appointment by the Court of Appeal, 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 James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

Abraham Martinez appeals from a judgment after a jury convicted him of aggravated assault, misdemeanor vandalism, and street terrorism. Martinez argues insufficient evidence supports his conviction for street terrorism, the trial court erroneously instructed the jury on that count, and he received ineffective assistance of counsel. Because we agree insufficient evidence supports his conviction for street terrorism, we need not address his claim there was instructional error. We reverse his conviction for street terrorism and remand the matter for resentencing. His ineffective assistance of counsel claim has no merit, and we affirm the judgment in all other respects.

FACTS

Early one afternoon, Gustavo Rosales was at his girlfriends house when he saw a white minivan drive by and park on the neighbors driveway. Martinez, his brother, Augustine Martinez (Augustine), and a third man got out of the van and vandalized Rosaless truck. Two of the men had pipe wrenches. Rosales ran outside, and Augustine and the other man rushed towards him. Rosales began to fight them, but when Rosales realized he was overmatched, he began to run, and Martinez tackled him. One of the men hit Rosales on the back of the head with a wrench, and he black[ed] out. When Rosales regained his senses, Martinez had him in a headlock and was yelling get him, get him[.] The men started punching and kicking Rosales. Eventually, the men got back into the van and drove away. A neighbor, Jennifer Weatherwax, called 911.

Officer Shawn Boatright arrived at the scene. He saw Rosales lying on the ground and a truck with a broken windshield and windows. He interviewed Weatherwax, who initially told him she did not want to get involved. Weatherwax told Boatright that Augustine and two other men attacked Rosales, and they had wrenches. She could not identify the other men because they had their backs to her. She led Boatright to Augustines residence.

At the residence, officers saw the letters UST and WSA scratched near the apartment number. No one was home. Officer Chuck Schroth arrested Martinez five days later at his residence, 400 South Sunkist, No. 33, Anaheim.

An information charged Martinez with aggravated assault (Pen. Code,  245, subd. (a)(1))[1] (count 1), misdemeanor vandalism ( 594, subds. (a) & (b)(1)) (count 2), and street terrorism ( 186.22, subd. (a)) (count 3). As to count 1, the information alleged he personally inflicted great bodily injury ( 12022.7, subd. (a)). The information also alleged he suffered a 2006 prior serious felony conviction ( 1170.12, subds. (b) & (c)(1), 667, subds. (d) & (e)(1)).

At trial, the prosecutor offered Rosaless testimony. Rosales explained that the previous month he got into a fight with Augustine because he owed money to Rosaless girlfriend; Rosales considered himself the winner of that fight. Rosales stated Martinez was one of the men who had a pipe wrench. He said it cost a few hundred dollars[] to fix his truck. On cross-examination, Rosales stated Martinez and the third man were armed with wrenches, but he could not be sure Martinez hit him in the head with a pipe wrench because it happened very quickly. Rosales stated he was not a gang member and he did not know if the men who attacked him were gang members. Rosales admitted he suffered a conviction for transporting narcotics in 2002, and he used methamphetamine one to two hours before the incident.

The prosecutor also offered Weatherwaxs testimony. She explained Augustine was her sisters boyfriend and he was the father of her sisters child. Weatherwax said she saw Martinez, Augustine, and a third man fighting with Rosales. She stated one of the men had a wrench, but she could not say who. She denied all the men had wrenches, and denied telling Boatright that, or that she saw Augustine hit Rosales with a wrench.

Finally, the prosecutor offered the testimony of Schroth, a gang expert. After detailing his background, training, and experience, Schroth testified concerning the culture and habits of traditional, turf-oriented Hispanic criminal street gangs. Schroth defined a criminal street gang, and explained how one joins a gang, the significance of graffiti in gangs, the concept of claiming a gang, the roles of allies and rivals, and the importance of territory, or turf. He also explained the importance of guns, violence, and respect in gangs. Schroth stated that if a gang member uses a gun to commit violent acts, the gang member gains respect with fellow gang members and rises within the gang hierarchy, and the gang member instills fear in rival gang members and the community because if they do anything against this gang . . . more violence may ensue. He said gang members will retaliate with greater numbers if one of their own was attacked, and if a gang member does not use violence, the gang member will be viewed as weak. He explained gang members discuss the crimes they commit with fellow gang members.

Schroth testified concerning his knowledge of the Underhill gang. He stated Underhills ally was the West Side Anaheim gang and its rival was the La Jolla gang. He opined Underhill was a criminal street gang in Anaheim that began in the 1980s, and had between 50 and 60 members. He stated Underhills signs were UST, USTR, UST-X3, and Underhill Street[,] and it secondary name was Los Cyclones. He stated Underhills primary activities were felony graffiti vandalism and juveniles carrying guns. He testified concerning the statutorily required predicate offenses committed by Underhill gang members Brendan Ruelas and Jaime Gonzalez. Schroth testified he had previous contacts with Martinez, including the following: a February 2006 investigation for a violent felony involving Martinez, Ruelas, and Saul Sanchez[2] where Martinez eventually admitted committing the crime for the benefit of Underhill; a 2005 contact where officers found him with Gonzalez; a 2004 contact where Martinez admitted he vandalized property with Underhills sign; and a 2002 contact where Martinez was stopped in a stolen vehicle with another Underhill gang member. Schroth also described letters Martinez wrote that include indicia of gang membership, and photographs of Martinez showing gang hand signs. He also stated that other Underhill gang members referred to Martinez as being in good standing. Based on his investigation of this case, including the severity of the attack, and his prior contacts with Martinez, Schroth opined Martinez was an active participant in Underhill at the time of the offenses.

Martinez offered the testimony of his father, Daniel Martinez (Daniel).Daniel testified that on the day in question Martinez was working with him in Diamond Bar from 7:00 a.m. to 5:30 p.m. He believed Augustine lived in Riverside at the time of the incident.

Martinez also offered the testimony of Sir Edwin Clark. Clark testified Martinez was working at his house on the day of the incident because he and Daniel worked at his house every Friday since 1999. Clark stated he did not believe they missed a week.

The jury convicted Martinez of all counts, but it found not true the great bodily injury allegation. At a bench trial, Martinez admitted he suffered a prior serious felony conviction. The trial court sentenced Martinez to 11 years in state prison.

DISCUSSION

I. Sufficiency of the evidence

Martinez argues insufficient evidence supports his conviction for street terrorism. We agree.

Our role in considering an insufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses [citation], and we review the record in the light most favorable to the judgment [citation], drawing all inferences from the evidence which supports the jurys verdict. [Citation.] (People v. Olguin (1994)

31 Cal.App.4th 1355, 1382.) The standard of review is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) Before a verdict may be set aside for insufficiency of the evidence, a party must

demonstrate that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Section 186.22, subdivision (a), is the substantive offense of street terrorism. The elements of section 186.22, subdivision (a), are: [(1)] actively participat[ing] in any criminal street gang[; (2)] with knowledge that its members engage in or have engaged in a pattern of criminal gang activity[;] and [(3)] willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang. [Citation.] (People v. Robles (2000) 23 Cal.4th 1106, 1115.)

Section 186.22, subdivision (a), punishes active gang participation where the defendant promotes or assists felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself. [Citations.] Thus, it applies to the perpetrator of felonious gang-related criminal conduct . . . . [Citation.] (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 (Ferraez), italics added.) Section 186.22, subdivision (a), does not require the crime be for the benefit of a gang, as does section 186.22, subdivision (b), the street terrorism enhancement. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1334 (Martinez).) Section 186.22, subdivision (a), applies to both perpetrators and aiders and abettors of felonious conduct. (Ferraez, supra,

112 Cal.App.4th at p. 930; People v. Ngoun (2001) 88 Cal.App.4th 432, 436 (Ngoun).) And, if the gang member is the perpetrator, it is irrelevant whether the gang member is alone. (Ferraez, supra, 112 Cal.App.4th at pp. 929-931.)

Under section 186.22, subdivision (a), liability attaches to a gang member who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang. [Citation.] In common usage, promote means to contribute to the progress or growth of; further means to help the progress of; and assist means to give aid or support. [Citation.] (Ngoun, supra, 88 Cal.App.4th at p. 436.)

Martinez does not appear to dispute there was sufficient evidence he was an active participant in Underhill and he had knowledge fellow Underhill gang members engaged in a pattern of criminal gang activity. In fact, he effectively concedes these points.He complains there was no nexus between the charged crimes and his membership in the Underhill gang.In other words, he asserts the offenses were not gang related. We agree.

Although the testimony of a single witness is sufficient to support a conviction[] (People v. Young (2005) 34 Cal.4th 1149, 1181), Schroths testimony alone was insufficient to find the offenses were gang related. True, Schroth testified that when a gang member uses a weapon and commits violent acts it increases the gang members stature in the gang and instills fear in the community. He also testified gang members boast about their crimes to other gang members. But there was no evidence Underhill in any way claimed credit for the assault, or that news of the offenses spread to other Underhill gang members or the community, thereby increasing Martinezs or Underhills stature. Schroth also testified that when a gang member is attacked, the gang member will recruit his fellow gang members to conduct a counterattack. But as we explain anon, there was no evidence Augustine was a gang member who recruited Martinez and the third man to launch a counterattack on Rosales. The record was void of any other evidence from which the jury could reasonably infer the crime was gang related.

Other than Martinezs membership in Underhill, there was no evidence the assault had any nexus to Underhill. Significantly, there was no evidence of any gang challenges or threats, gang signs, or gang colors. Rosales testified he was not a gang member and he did not know whether his attackers were gang members. Schroth testified brothers will join different gangs and form alliances with their respective gangs, and there were gang symbols scratched near Martinezs and Augustines front door, but as the Attorney General concedes, there was no evidence Augustine or the third man were Underhill gang members. There was no evidence the assault occurred in Underhill territory, or its rivals territory. And contrary to the Attorney Generals assertion, there was no evidence Martinez and Augustine lived in Underhill territory. In fact, Schroth testified at the preliminary hearing Martinez did not live in Underhill territory. Nor were the offenses similar to Underhills primary activities. Finally, that they may have wore similar clothes and had similar haircuts does not establish the offenses were gang related without some testimony Underhill gang members had a uniform and wore a common hairstyle. Similarity in attire and coiffures is just as likely a generational factor.

Schroths opinion based on generalized notions of gang customs and habits was insufficient without some evidence the offenses were gang related to sustain a conviction for street terrorism. The apparent motivation for the attack was the fact Rosales prevailed over Augustine in a fistfight over his girlfriends money the prior month. Rosales testified as much. There was no evidence the attack was a coordinated gang retaliation led by Martinez for Rosaless previous beating of Augustine. Simply put, the record shows only this was a younger brother seeking revenge for the beating of his older brother.[3]

II. Ineffective assistance of counsel-severance/bifurcation

Martinez contends he received ineffective assistance of counsel because his defense counsel failed to request severance/bifurcation of the street terrorism charge from the aggravated assault and misdemeanor vandalism offenses. We disagree.

In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsels performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsels performance prejudiced defendants case in such a manner that his representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. [Citations.] Moreover, a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. [Citation.] Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.] If defendant fails to show that he was prejudiced by counsels performance, we may reject his ineffective assistance claim without determining whether counsels performance was inadequate. [Citation.] (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390.)

To prevail on his claim, Martinez must demonstrate he was prejudiced by his defense counsels alleged deficient performance. Martinez claims he was prejudiced because the plethora of gang evidence would make it more likely the jury would reject his alibi defense and conclude he committed counts 1 and 2 because he was a member of a gang that committed violent acts. Contrary to Martinezs assertion, the witnesses identifications were solid. Both Rosales and Weatherwax identified Martinez from photographic lineups. And they both testified Martinez was one of the men who vandalized Rosaless truck and assaulted him. Even had the aggravated assault and misdemeanor vandalism offenses been tried separately, it is not reasonably probable there would have been a different result. Because we conclude Martinez was not prejudiced by his defense counsels failure to request severance/bifurcation of the street terrorism charge from the aggravated assault and misdemeanor vandalism offenses, we need not address whether that failure constituted deficient performance.

DISPOSITION

We reverse Martinezs conviction for street terrorism and remand the matter for resentencing. In all other respects, the judgment is affirmed.

OLEARY, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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[1] All further statutory references are to the Penal Code, unless otherwise indicated.

[2] During a search of Sanchezs home, officers found a letter Martinez penned to Sanchez where he wrote Calle Underhill underneath his name.

[3] Because we conclude insufficient evidence supports Martinezs conviction for street terrorism, we need not address his claim Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 1400 misstated the statutory elements. We note this court rejected a similar claim in Martinez, supra, 158 Cal.App.4th at page 1334. What makes this case different from Martinez is that the jury requested the trial court provide guidance on CALCRIM No. 1400. The jury asked the court the following question, Are we determining if its a gang related incident or is he just an active member of the gang as a separate charge. The court responded, He must be an active participant (see #3 on page 1 of CALCRIM [No.] 1400. Please refer to all the instruction[s] in CALCRIM [No.] 1400.

Unnecessary for resolution of this appeal is Martinezs contention the trial courts response compounded the alleged instructional error by highlighting the element of active participation while failing to mention the offenses must be gang related. We note that after the court initially referred to active participation, it also told the jury to refer to the entire instruction, including element No. 3, which stated, The defendant directly and actively and personally committed or willfully assisted, furthered, or promoted felonious criminal conduct by a member or members of the gang.