P. v. Oregon
Filed 6/25/13 P. v. Oregon CA5
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opinion has not been certified for publication or ordered published for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
FIFTH
APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS OREGON, Defendant and Appellant. | F062593 (Super. Ct. No. BF131156C) |
APPEAL from a judgment of the Superior Court of
Valerie G. Wass, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell,
Assistant Attorney General, Kathleen A. McKenna, Barton Bowers and William K.
Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Juan Carlos Oregon and his codefendants, Jaime
Vidal Aguirre and Anthony Manuel Perez, were jointly charged with offenses
arising from a car chase and shooting involving two police officers. After the trial court severed appellant’s
trial from those of the codefendants, a jury convicted appellant of two counts
of attempted premeditated murder of a
peace officer (Pen. Code,
counts 1 & 2), two counts of assault upon a peace officer with a
semiautomatic firearm (§ 245, subd. (d)(2); counts 3 & 4), and one
count each of being a felon in possession of a firearm (§ 12021, subd.
(a)(1); count 5), receiving a stolen vehicle (§ 496d, subd. (a); count 8),
and recklessly evading a peace officer while operating a motor vehicle (Veh.
Code, § 2800.2; count 9). The jury
also found true the gang enhancement allegations in each count (§ 186.22,
subd. (b)(1)), and the firearm enhancement allegations in counts 1 through 4
(§ 12022.53, subds. (c) & (e)(1)).
The trial court imposed an aggregate prison term of 79 years to
life.
Appellant contends, and respondent concedes, the trial
court’s admission of the codefendants’ out-of-court statements detailing his
role in the charged offenses violated his Sixth
Amendment right to confront and cross-examine witnesses under the
principles set forth in People v. Aranda
(1965) 63 Cal.2d 518 (Aranda),
123 (Bruton), and
36 (Crawford). They disagree, however, on whether the error
was harmless under the applicable Chapman
We conclude the trial court’s federal constitutional error in admitting
the codefendants’ out-of-court testimonial statements was not harmless beyond a
reasonable doubt and requires reversal of all of appellant’s convictions except
for his conviction for recklessly evading a peace officer in count 9.
Because the issues may not arise on any retrial or, if they
do, the context may be materially different, we do not reach appellant’s claim
that the trial court erred in admitting evidence he had shotgun shells in his
possession at the time of his arrest, his numerous claims of instructional
error, or his claim of cumulative error.
However, appellant also claims that, absent the improperly admitted
statements of his codefendants, the evidence was insufficient to support the
offenses charged in counts 1 through 5.
Because these claims could preclude retrial if meritorious we address
them and conclude the admissible evidence was sufficient to support the
offenses of attempted murder of a peace officer and assault upon a peace
officer with a semiautomatic firearm charged in counts 1 through 4. But, as respondent concedes, the admissible
evidence was insufficient to support the offense of being a felon in possession
of a firearm charged in count 5.
Finally, we consider and reject as unpersuasive appellant’s claim that
insufficient evidence supports the section 186.22 and section 12022.53
enhancement allegations because there was insufficient evidence the crimes were
gang related.
Around 9:00 p.m. on February 20,
2010, a blue Honda Civic with paper dealer plates caught the attention of
Bakersfield Police Officers Rudy Berumen and Paul Yoon. Officer Yoon attempted to initiate a traffic
stop by activating the red-and-blue light bar on top of their marked patrol
car. The Civic did not stop right away
but travelled another block and a half before pulling over at the intersection
of Beale and Monterey.
The two uniformed officers got out of the patrol car and
started to approach the Civic. Officer
Berumen observed the Civic was occupied by three Hispanic males, and the back
seat passenger was moving around quite a bit.
Officer Yoon noticed a lot of movement amongst all the occupants but
particularly between the driver and back seat passenger.
After the officers took a few steps towards the Civic, the
car suddenly accelerated and headed southbound on Beale. The officers ran back to the patrol car and a
high-speed chase followed. At a
controlled intersection, the Civic ran a red light and made a sharp left turn
onto East Truxtun. The Civic then made a
right turn to continue southbound on Beale.
The patrol car followed the Civic onto Beale. According to Officer Yoon’s testimony, the
patrol car was about two car-lengths behind the Civic when he heard a gunshot
and saw the lower portion of the Civic’s rear window shatter out. He then heard a second gunshot which blew out
the entire rear window. Officer Yoon saw
the back seat passenger aim and fire two more shots at the patrol car. To avoid getting hit, Officer Yoon started
taking evasive driving maneuvers, including swerving left and right to cover
the entire roadway. In his testimony,
Officer Berumen described the deliberate manner in which the back seat
passenger shot at the patrol car: “It
was more of a controlled shoot. It
wasn’t just a rapid fire. He had both
hands on the gun pointing at our direction, firing his gun.â€
The Civic made an abrupt left turn from Beale onto East
California, failing to stop at the stop sign.
Officer Berumen testified the Civic started “fishtailing because it was
going so fast.†From East California,
the Civic turned right onto South Owens.
It did not stay on South Owens but made a “quick left onto the south
alley of East California.†The alley was
not fully paved, and there was a lot of debris, dirt and rocks being kicked up
in the air. Officer Berumen described
the Civic’s driving-style in the alley as “[v]ery evasive.†The car was speeding and moving from right to
left.
Officer Yoon testified that after he entered the alley and
positioned the patrol car directly behind the Civic, another shot was fired at
the officers followed seconds later by a final shot. After the final shot was fired, the Civic
continued travelling eastbound in the alley.
Officer Yoon also testified that the Civic “turn[ed] off the headlights, trying to basically lose us—in the darkness.â€
Although
it is not entirely clear, the order in which Officer Yoon described events
suggests the lights on the Civic might have been turned off after the last two
shots were fired in the alley. However,
Officer Berumen specifically recalled that, as soon as the Civic entered the
alley, “the vehicle blacked out, turned off all its lights, so it was
definitely harder to see the vehicle.â€
After making several quick turns, the Civic stopped abruptly
in the middle of a narrow residential street.
Based on his training and experience, Officer Yoon suspected the three
individuals in the Civic had led the officers to that location to engage in a
shootout. Instead, they got out of the
Civic and ran away.
Officer Yoon chased the driver but eventually lost sight of
him. Officer Berumen chased the
passengers but was unable to catch them.
Before chasing them, he fired his duty firearm several times at the
fleeing back seat passenger, who continued running.
Jeffery Cecil, a crime scene technician with the Bakersfield
Police Department, testified that a black diaper bag found near the Civic
contained three masks, a loaded, nine-millimeter semiautomatic handgun, a
nine-millimeter cartridge casing, binoculars, and glass fragments. He found three additional nine-millimeter
cartridge casings inside the Civic. One
was under the front passenger’s seat and the other two were on the back passenger’s
seat. Later forensics testing
established that three of the cartridge casings Cecil collected were fired from
the semiautomatic handgun found in the black diaper bag.
In addition, Cecil found a portable police scanner on the
front passenger seat of the Civic. The
scanner was in working condition and “broadcasting what would be described as
the Bakersfield Police Department’s Channel 1†which was “for the east side of
Bakersfield.†In the Civic’s center
console, he found a key fob with 11 shaved keys on it. He also found various items of clothing in
the car, including a number of cotton work gloves, a black hat with the letter
“T†on it, a black T-shirt, and a blue beanie cap. A sock found in the trunk of the car
contained live .45-caliber bullets.
The Civic’s owner reported the car stolen on February 12,
2010.
Dianna Matthias, a supervising
criminalist of the Kern County Regional Criminalistics Laboratory, testified
regarding the testing she conducted on the Civic. She determined that two holes, found in the
back area of the car, were caused by gunshots fired by someone holding a gun
near the back seat of the car. She was
able to exclude the driver and front seat passenger as having fired those two rounds.
Appellant was apprehended around
11:50 p.m., on April 13, 2010, after a patrol officer observed him driving a
stolen blue Honda Accord. When the
officer attempted to initiate a traffic stop, appellant accelerated and led the
officer on a short car chase, which ended with appellant colliding into a
fence. Appellant got out of the car and
began to run. A backup officer arrived
and the officers were able to catch appellant and handcuff him. A search of appellant’s pockets uncovered
some 20-gauge shotgun shells. Shaved
keys were also found inside the car.
Detective Richard Dossey interviewed
appellant on April 19, 2010. Appellant
admitted he was driving the blue Civic during the February 20, 2010
incident. He told Detective Dossey they
were coming from the area of Columbus and Beale. When the detective tried to ascertain whether
appellant had stopped at an AM/PM store on Beale and Monterey prior to the
traffic stop, appellant said, “No, that’s where they first tried to stop us.â€
Appellant told Detective Dossey he used the shaved keys
found in the Civic’s center console to steal cars (though not specifically to
steal the Civic), and that he had recently come into possession of some shaved
Ford Mustang keys. Detective Dossey
confirmed the keys found in the Civic’s center console included two to three
Ford-style keys which had been sanded or shaved down.
A gang expert opined that appellant and the codefendants
were members of the Varrio Bakers criminal street gang. After being presented with a hypothetical
based on the February 20, 2010, incident, the expert opined “these crimes
[were] committed in association with and for the benefit of the Varrio Bakers
criminal street gang.†(Additional facts
concerning the gang allegations are set forth, infra, in part III of the Discussion.)
The parties stipulated that the codefendants committed the
crimes of premeditated attempted murder of a police officer, and assault upon a
peace officer with a semiautomatic firearm.
Appellant was prosecuted for those crimes, not as a direct perpetrator,
but under multiple theories of vicarious liability.
I. Admission
of the codefendants’ out-of-court testimonial statements violated appellant’s
confrontation rights and requires reversal of all but one of his convictions
Over defense counsel’s repeated hearsay objections, the
trial court admitted, through the testimony of Detective Dossey, incriminating
statements made by the codefendants during their separate police interviews
after they were arrested within days of the February 20, 2010, incident.
During their interviews, the codefendants both identified
appellant as the driver of the blue Civic.
In addition, Aguirre said that “everybody in the vehicle was armed or
heated with a firearm†during the incident.
The codefendants both described appellant as possessing a
TEC-9 or TEC-style firearm. Detective
Dossey explained that a TEC-9 firearm “looks like a small submachine gun†and
“has a magazine that’s kind of towards the front of the trigger guard and can
be made … fully automatic.â€
Aguirre reported that when he was arrested, appellant was
present and armed but managed to escape.
Appellant was carrying the TEC-9 firearm at that time and was wearing it
“wrapped around his neck on … a strap or some type of apparatus to hold it
close to his body.â€
Finally, Aguirre reported that, during the February 20, 2010
incident, when the police turned on their overhead lights to initiate the
traffic stop, appellant told him “the vehicle was stolen, and he was going … to
run or flee from that situation.â€
Appellant “also told them that as soon as they tried to pull them over …
that he wanted them to start shooting.â€
B. Applicable Crawford and Aranda-Bruton
Principles
The confrontation clause of the Sixth Amendment of the
United States Constitution provides that “‘[i]n all criminal prosecutions, the
accused shall enjoy the right ... to be confronted with the witnesses against
him.’†(Crawford, supra, 541 U.S.
at p. 42.) The phrase “‘witnesses
against him’†is not limited to in-court witnesses but also applies to
admission of hearsay statements. (
barred “admission of testimonial statements of a witness who did not appear at
trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.†(
“Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later
v. Washington (2006) 547 U.S. 813, 822, fn. omitted.)
With respect to the
well established: ‘[A] nontestifying codefendant’s
extrajudicial self-incriminating statement that inculpates the other defendant
inadmissible as violative of that defendant’s right of confrontation and
cross-examination, even if a limiting instruction is given.’ [Citation.]â€
(People v. Hill (1992) 3
Cal.4th 959, 994, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The holding that admission of a nontestifying
defendant’s extrajudicial statements implicating a codefendant violates the
codefendant’s rights under the confrontation clause, “extends only to
confessions that are not only ‘powerfully incriminating’ but also ‘facially
incriminating’ of the nondeclarant defendant.â€
(People v. Fletcher (1996) 13
Cal.4th 451, 455, fn. 1.)
In light of the above principles,
respondent’s concession of error is well taken.
The codefendants’ out-of-court testimonial statements powerfully
incriminating appellant were admitted in violation of his confrontation rights. The question is whether the error was
harmless.
“Under the Chapman
test, Aranda-Bruton error is harmless
where the properly admitted evidence against defendant is overwhelming and the
improperly admitted evidence is merely cumulative. [Citation.]
To find the error harmless we must find beyond a reasonable doubt that
it did not contribute to the verdict, that it was unimportant in relation to
everything else the jury considered on the issue in question. [Citations.]
We employ the same analysis for Crawford
error since the Chapman test also
applies.†(People v. Song (2004) 124 Cal.App.4th 973, 984-985; accord
232.)
We agree with the parties that
appellant’s conviction on count 5 for being a felon in possession of a firearm
must be reversed. As respondent candidly
acknowledges, apart from the codefendants’ improperly admitted statements,
“evidence that appellant possessed a firearm on the night of the shooting was
scant.†Aguirre’s statement that all
three of the defendants test-fired the semiautomatic handgun later used in the
shooting was the only evidence directly tying appellant to the possession of
that firearm. And the codefendants’
statements regarding appellant’s possession of a TEC-9 or TEC-style firearm
constituted the only evidence of appellant being personally armed. Therefore, we are unable to say beyond a
reasonable doubt that the codefendants’ statements did not contribute to the
jury’s verdict on count 5.
We reach the same conclusion with respect to appellant’s
convictions on counts 1 through 4 for attempted murder of a peace officer and
assault upon a peace officer with a semiautomatic firearm. In arguing the erroneous admission of the
codefendants’ out-of-court statements was harmless as to these counts,
respondent does not claim the properly admitted evidence against appellant was
overwhelming. Instead, respondent simply
asserts the case against appellant was quite
strong and that all the prosecutor’s theories of vicarious liability were
the properly admitted evidence makes a persuasive argument there was sufficient
evidence to support the charges, it fails to demonstrate the error was harmless
under the applicable Chapman
standard.
We cannot say beyond a reasonable doubt that the
codefendants’ statements did not contribute to the verdict or that the jury
would consider them unimportant or merely cumulative. To the contrary, Aguirre and Perez provided
the only firsthand accounts of what appellant said and did inside the Civic on
the night in question, without any opportunity for cross-examination. The improperly admitted statements
constituted powerful evidence in support of the prosecution’s theories of
vicarious liability, particularly the theory that appellant aided and abetted
his codefendants’ commission of the intended crimes by verbally directing them
to start shooting at the police officers.
The prosecutor specifically cited to the codefendants’ statements in
arguing this theory to the jury, and while portraying appellant as the chief
instigator of the offenses, who “sets in motion absolutely everything that
happens that night.†Moreover, the
codefendants’ statements indicating all three of them were armed and that
appellant, along with the others, test-fired the semiautomatic handgun before
the shooting was powerful circumstantial evidence going to issues such as
appellant’s knowledge of the perpetrators’ unlawful purpose and the probability
the offenses would occur.
The prosecutor also relied on the codefendants’ statements
in his rebuttal argument to undermine the defense that appellant, in the prosecutor’s words, was “somehow caught up in this
… accidentally†and that his codefendants incriminated him in an attempt to
“shift the blame.†The prosecutor
stressed the point that the codefendants’ statements incriminating appellant
were believable not only because they were consistent in detail—both Aguirre
and Perez identified appellant as the driver and provided similar descriptions
of his firearm—but also because the codefendants admitted they too were armed
during the incident and did not try to claim appellant was the shooter. These factors, the prosecutor argued, were
incompatible with the defense theory of blame shifting. The prominent role the codefendants’ statements played in
closing argument reflects their importance to the prosecution’s case against
appellant. On this record, we are unable
to conclude beyond a reasonable doubt that the codefendants’ out-of-court
statements did not contribute to the jury’s verdict on the charges of attempted
murder of a peace officer and assault upon a peace officer with a semiautomatic
firearm in counts 1 through 4.
We
reach the same conclusion with respect to appellant’s conviction on count 8 for
receiving a stolen vehicle. On the
question of whether appellant had knowledge the Civic was stolen, there was no
evidence as strong as Aguirre’s improperly admitted statements that, when the
police initiated the traffic stop by turning on their overhead lights,
appellant specifically told him that the car was stolen and that he planned to
flee. The statements were not cumulative
of other evidence. Appellant did not
admit to stealing the Civic or knowing it was stolen during his police
interview. Although we believe
appellant’s knowledge can reasonably be inferred from the circumstances
demonstrated by the properly admitted evidence, we cannot say beyond a
reasonable doubt that the error in admitting the codefendants’ statements did
not contribute to the verdict on count 8.
We
can, however, say the error was harmless beyond a reasonable doubt with respect
to appellant’s conviction on count 9 for recklessly evading a peace officer
while operating a motor vehicle. The
admissible evidence on this charge was overwhelming. In his police interview, appellant admitted
he was the driver and indicated he knew the officers were trying to pull
him. The codefendants’ identification of
appellant as the driver was cumulative of this evidence, and Aguirre’s
statement that appellant told him he planned to flee was relatively unimportant
in relation to the evidence of appellant’s actual conduct in leading the
officers on a dangerous, high-speed chase at night through the streets of
Bakersfield. For these reasons, we
conclude the erroneous admission of the codefendants’ statements did not
prejudice appellant on count 9.
II.
of a peace officer and assault upon a peace officer with a semiautomatic
firearm in counts 1 through 4, but insufficient evidence supports the charge of
being a felon in possession of a firearm in count 5
Appellant contends that, absent the codefendants’
inadmissible statements incriminating him, the admissible evidence was
insufficient to support the charges of attempted murder of a peace officer and
assault upon a peace officer with a semiautomatic firearm under any of the
prosecution’s theories of vicarious liability.
We
review a claim of insufficient evidence
by determining whether, viewing the whole record in the light most favorable to
the prosecution, the record discloses substantial evidence—evidence which is
reasonable, credible, and of solid value—from which a reasonable trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt. (People v. Osband (1996) 13 Cal.4th 622, 690.) “‘We “‘presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.’â€â€™ [Citation.]†(Ibid.)
“In making our determination, we do
not reweigh the evidence .… We
simply consider whether ‘“‘any
rational trier of fact could have found the essential elements of [each
conviction challenged] beyond a reasonable doubt.’†[Citations.]’
[Citation.] Unless it is clearly
shown that ‘on no hypothesis whatever is there sufficient substantial evidence
to support the [jury’s] verdict[s,]’ we will not reverse.†(People
v. Stewart (2000) 77 Cal.App.4th 785, 790.)
In challenging the sufficiency of
the evidence supporting counts 1 through 4, appellant first asserts there was
insufficient evidence to support the theory he intentionally aided and abetted
the intended crimes of his codefendants.
In essence, appellant argues his conduct in driving the Civic to escape
the police officers was factually incompatible with a finding he was
simultaneously trying to help the back seat passenger shoot at the
officers. Thus, appellant asserts: “By increasing the distance between the Civic
and the patrol car, [he] would actually be doing an act that ended, rather than
encouraged, the shooting offenses.†He
further asserts that “his act of continuing to accelerate his vehicle while his
backseat passenger was shooting at the officers demonstrates a lack of an
intent to kill.â€
Contrary to appellant’s assertions,
a rational juror could infer from all the circumstances demonstrated by the
admissible evidence that appellant was attempting to avoid capture by the
police officers while at the same time intentionally
facilitating his codefendants’ commission of the shooting offenses. For example, there was evidence from which
one could reasonably infer that appellant led the police officers from one of
the main streets into an alley and shut off all the lights on the Civic to
improve the shooter’s ability to see and target the patrol car, while at the
same time facilitating his and the codefendants’ escape by obscuring the
officers’ view of the Civic. As
respondent points out, there was also evidence supporting the other theories of
vicarious liability presented to the jury in this case. However, because we see sufficient
evidentiary support for at least one theory, we need not address all the potential
theories the prosecutor might pursue on retrial but quickly dispense with
appellant’s sufficiency of the evidence challenge to the charges in counts 1
through 4.
We reach a different conclusion with
respect to count 5. For reasons
discussed above in connection with appellant’s Sixth Amendment claim, we agree
with the parties that the properly admitted evidence was insufficient to
support the charge of being a felon in possession of a firearm. Apart from the codefendants’ improperly
admitted statements, there was little evidentiary support for the possession
element of the offense.
enhancements
Finally, we reject appellant’s claim that there was
insufficient evidence to support the gang enhancements (§ 186.22, subd.
(b))
title="">[6] and gang-related firearm enhancements
(§ 12022.53, subd. (e)).
Specifically, he claims there was insufficient evidence to establish the second
prong of the gang enhancement: the
“specific intent to promote, further, or assist in any criminal conduct by gang
members ....†(§ 186.22, subd.
(b)(1).)
Officer Brent Stratton testified as a gang expert and
described the Varrio Bakers criminal street gang, which he identified as a
subset of the Sureño gang in Bakersfield.
The gang’s primary activities include
narcotics sales, robberies and carjackings.
Officer Stratton opined that
appellant and the codefendants were all active members of the Varrio Bakers
gang and explained the bases for his opinion.
In explaining his opinion concerning appellant, Officer Stratton
testified he reviewed appellant’s jail booking records and his prior contacts
with the Bakersfield Police Department and Kern County Sheriff’s
Department.
Appellant had a total of seven prior bookings. In his three oldest bookings, he claimed no
gang affiliations. But when he was
booked on October 23, 2008, he stated that he belonged to “South,†which is
synonymous with Sureño, and needed to be kept away from “North.†He claimed the same affiliation to South
during subsequent bookings on January 14, 2009, on April 5, 2009, and, finally,
on April 17, 2010.
Officer Stratton further testified that the following
contacts with law enforcement were significant in forming his opinion that
appellant was an active member of the Varrio Bakers gang:
On August 5, 2004, appellant was contacted within Varrio
Bakers territory.
On October 14, 2006, appellant was a passenger in a vehicle
contacted during a narcotics investigation in Varrio Bakers territory.
On April 27, 2007, when officers were conducting an
investigation into possession of a firearm, they contacted appellant at the
residence where the firearm was located and where the suspect, a Varrio Bakers
gang member, was arrested.
On July 20, 2008, appellant was arrested for a vehicle
burglary and found in the company of Varrio Bakers gang member. Burglary is one of the gang’s primary
activities, and the burglary occurred in the gang’s territory.
On March 30, 2009, when officers were dispatched to a
suspected gang fight in Varrio Bakers territory, appellant was contacted in a
vehicle that matched the description of the vehicle involved in the fight.
On April 5, 2009, appellant was arrested for charges related
to auto theft. At the time of his
arrest, appellant was wearing a hat with the letters KC on the front. Officer Stratton explained Kern County gang
members often wear this style of hat to signify their gang affiliation and
during the commission of crimes to benefit the gang.
On January 24, 2010, appellant and two other Varrio Bakers
members—Jaime Aguirre, appellant’s codefendant in the instant case, and Joey
Gonzalez—committed a home invasion robbery where they held the victims at
gunpoint. After the robbery, the victims
chased the suspects into the parking lot.
The suspects, including appellant, turned around and fired between 10
and 13 shots at the victims. Officer
Stratton opined those crimes were committed by appellant for the benefit of, in
furtherance of, and in association with the Varrio Bakers gang because robbery
is one of the primary activities of the gang, the crimes occurred in the gang’s
territory, and were committed in the company of two other members of the gang .
On February 4, 2010, appellant was arrested for grand theft
auto, which is one of the primary activities of Varrio Bakers gang.
On February 20, 2010, appellant committed the instant crimes
in the company of the codefendants, who were both members of the Varrio Bakers
gang. Officer Stratton acknowledged he
testified in the codefendants’ trials and confirmed they were both
convicted.
Officer Stratton provided the following explanation for his
opinion that the crimes in this case were gang-related:
“And
I would base it on several key factors in your hypothetical. One of which would be the fact that they were
occupying a stolen vehicle, which is one of the primary activities of the
Varrio Bakers.
“Two
would be the presence of firearms which, again, in my opinion, are one of the
primary activities of the Varrio Bakers.
“You
also talked about several different things that of themselves may be benign,
but when you consider the totality of the circumstances, the things you’re
referring to as scanner, and ski masks, the presence of firearms, would lead me
to believe that they were possibly involved in another one of their primary
activities of the Varrio Bakers criminal street gang. The fact that the others inside the vehicle
were Varrio Bakers, that they’re wearing colors associated with the Varrio
Bakers, the fact that they commit these crimes in Varrio Baker territory and
ultimately attempt to flee in Varrio Baker territory is an area which would be
most friendly and conducive to facilitating their escape also help to factor in
my opinion.â€
Officer Stratton explained that the
hat with a “T†on it found inside the Civic was significant because it could be
used to signify the Traviesos, which is a subset of the Varrio Bakers criminal
street gang.
As to the gang-benefit of the crimes,
Officer Stratton testified:
“Well, they gain respect and
notoriety amongst other gang members within their gang.
“It
enhances their status within the gang.
“In
my opinion, it enhances their lawless reputation of the gang with the outside
community as a whole.
“And
money is generated from these type of illicit activities are used to benefit
the gang members and the gang as a whole.â€
B. Analysis
Appellant asserts “there was an absence of substantial
evidence to establish that appellant intended to and did commit the charged
offenses with known members of the gang.â€
He continues: “Although the
evidence established that Aguirre and Perez were members of the Varrio Bakers,
it failed to establish appellant’s membership in the gang.†Appellant further argues that the evidence
“failed to establish that he intended to aid and abet the co-defendants in the
commission of the offenses in Count 1 through 4,†but merely demonstrated “he
had a personal motive in committing the reckless evading offense, in that he
was driving a stolen vehicle, and wanted to avoid an encounter with the
police.†We find appellant’s assertions
unpersuasive.
In challenging Officer Stratton’s opinion that he was a
member of the Varrio Bakers gang, appellant focuses on the lack of evidence he
specifically identified himself as a member of the gang in his jail
bookings. However, Officer Stratton’s
testimony regarding appellant’s numerous contacts with law enforcement was more
than sufficient to support a finding appellant was an active member of the
Varrio Bakers gang. In arguing to the
contrary, appellant overlooks information, relied on by Officer Stratton in
rendering his opinion, that appellant committed crimes with other members of
the Varrio Bakers on more than one occasion, including a robbery and shooting
with Aguirre just under a month before the current incident. In short, there was ample evidence to support
a reasonable inference that, when appellant claimed affiliation with “Southâ€
during his jail bookings, the Varrio Bakers was the particular southern gang he
had in mind.
Under existing case law, the fact that appellant, a member
of the Varrio Bakers gang, committed the crimes in the company of two other
members of the same gang, supports an inference that his crimes were gang
related. (See
People v. Miranda (2011) 192
Cal.App.4th 398, 412-413 [commission of crime accompanied by gang members or
associates supports inference defendant intended to benefit gang];
Cal.App.4th 310, 322 [nongang member’s commission of crime in association with
known gang member supports inference crime was gang related];
1176, 1198-1199 [commission of crime with fellow gang members supports
inference crime was committed in association with gang].)
For reasons already discussed, we reject appellant’s
assertion that there was insufficient evidence he intended to aid and abet his
codefendants in their commission of the shooting offenses. That the evidence might also support an inference
that appellant had a personal motive in fleeing the police does not preclude,
and the evidence supports, a finding he acted with the requisite intent to
assist any criminal conduct of gang members.
The
judgment of conviction is reversed on counts 1, 2, 3, 4, 5, 8, and affirmed on
count 9.
_____________________
HILL, P. J.
WE CONCUR:
_____________________
WISEMAN, J.
_____________________
POOCHIGIAN, J.
statutory references are to the Penal Code unless otherwise specified.
18, 24 (Chapman).
