P. v. Pineda
Filed 6/21/13 P. v. Pineda CA4/3
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOHN
FELIPE PINEDA et al.,
Defendants and Appellants.
G046035
(Super. Ct.
No. 09NF0610)
O P I N I O
N
Appeal from a judgment
of the Superior Court of
County, James P. Marion, Judge; and Frank F. Fasel, Judge. (Retired judge of the Orange
County Super.
Ct., assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed as modified.
Ron Boyer, under
appointment by the Court of Appeal, for Defendant and Appellant John Felipe
Pineda.
Alex Mendoza, for
Defendant and Appellant Eduardo Javier Zavala.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Miller, Deputy
Attorneys General, for Plaintiff and Respondent.
*
* *
THE COURT:
title="">*
Co-defendants
John Felipe Pineda (Pineda) and Eduardo Javier Zavala (Zavala) appeal after the
jury convicted them of two counts of second
degree robbery, two counts of assault
with a deadly weapon and force likely to produce great bodily injury, and
one count of active participation in a criminal
street gang. On appeal, both
defendants argue the trial court should have stayed the sentence for active
participation in a criminal street gang pursuant to Penal Code section 654
rather than ordering it to run concurrently with the sentence for one count of
robbery.
title="">[1]
The
Attorney General concedes the argument, and we agree. The California Supreme Court’s recent
decision in People v. Mesa (2012) 54
Cal.4th 191, which held that a defendant may not be punished for both the
substantive offense of active participation in a
underlying felony used to satisfy the gang participation element of the crime,
compels this result. Accordingly, we
stay the sentence imposed for active participation in a criminal street gang
and affirm the judgment as modified.
Background
During
the evening of February 22, 2009, Pineda and Zavala attended a family
baptismal party which ended after the police arrived. Pineda and Zavala left the party to go to
another party along with five other males.
They all piled into Zavala’s Chevy Tahoe and Zavala said to them “You
want to cruise by?†Zavala then steered
the vehicle towards a small alleyway.
Zavala
stopped in front of a small open garage where victims Elio Moreno and Miguel
Quintero were sitting inside drinking beer.
The men confronted Moreno and Quintero and demanded to know their gang membership. They struck Quintero and Moreno, took Quintero’s wallet, keys and a chain,
and also took Moreno’s wallet and cell phone. One of the attackers stabbed Quintero in the
chest and stomach and hit him over the head with a beer bottle. Also, one of the attackers yelled out “Puro
Eastside,†and asked Quintero where he was from. When Quintero said “None,†the man said to
him, “Okay, Puro Eastside. Well, we’ll
leave you a memory from us†and then stabbed Quintero in the leg.
The
men got back in the Tahoe and drove further down the alleyway. There, they encountered Andres and Santiago
Arciniega, two brothers who lived in the same complex as Quintero, who were
walking towards their car. The men got
out of the Tahoe and approached the Arciniegas.
The men began displaying gang signs and asked the Arciniegas where they
were from. The Arciniegas replied
“Nowhere†and “We don’t bang.†The
assailants then attacked the Arciniegas.
One of the attackers yelled out “BST,†which Santiago Arciniega
understood to refer to the Barrio Small Town criminal street gang.
While
the attack on the Arciniega brothers was taking place, an unmarked police car
with two uniformed officers arrived. The
attackers scattered, and the officers eventually apprehended Zavala and
Pineda.
The
prosecution’s gang expert testified that Pineda and Zavala were active gang
members in the Barrio Small Town criminal street gang, and their involvement in
the crimes involving Quintero, Moreno, and the Arciniega brothers was for the
benefit of, at the direction of, or in association with the Barrio Small Town
gang, and promoted, furthered, and assisted the gang’s felonious criminal
conduct. The expert further testified
that the Barrio Small Town gang was an ally of the Eastside Anaheim
gang, and that the primary activities of both gangs were the felony possession
of weapons, felony vandalism, and aggravated assault.
The
jury found Pineda and Zavala guilty of two counts of second degree robbery
(Moreno and Quintero), two counts of assault with a deadly weapon and force
likely to produce great bodily injury (both Arciniega brothers), and one count
of active participation in a criminal street gang; it also found these crimes
were committed for the benefit of a criminal street gang. Pineda and Zavala were each sentenced to
state prison for a total term of 17 years and four months, which included two
years on the count of active participation in a criminal street gang to be
served concurrently to the sentence on the count of the robbery of Moreno.
The sentence imposed for
the conviction of active participation in a criminal street gang should have
been stayed pursuant to section 654, rather than ordered to run concurrently to
the robbery conviction, because the same acts used as the basis for the robbery
conviction were also used to prove the willful promotion element of the
criminal street gang crime.
Section 654, subdivision
(a), provides: “An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.â€
The crime of actively
participating in a criminal street gang has three elements: (1) active participation in a criminal street
gang; (2) knowledge that members of the gang have engaged in a pattern of
criminal activity; and (3) an actor “who willfully promotes, furthers, or
assists in any felonious criminal conduct by members of that gang.†(§ 186.22, subd. (a).) Mere membership in a criminal street gang
without the specific intent to willfully promote and further the felonious
criminal conduct by members of the gang is not punishable under this penal code
section. (People v. Mesa, supra, 54 Cal.4th at pp. 196-197.)
In People v. Mesa, a
gang defendant shot two people on two different days and was convicted of three
crimes for each shooting: assault with a
firearm, felon in possession of a firearm, and active participation in a
gang. The California Supreme Court
concluded that imposition of the sentence on the gang crime was required to be
stayed, because the statutory prohibition for crimes arising from an indivisible
course of conduct applied where the defendant is convicted of both a crime that
requires the intentional commission of an underlying offense as one of its
elements and the underlying offense itself.
As the court observed, “‘the underlying [felonies] were the very act[s]
that transformed mere gang membership – which, by itself, is not a crime – into
the crime of gang participation.’
[Citation.]†(
This is so here. The prosecution in this case presented
evidence that Pineda and Zavala were part of the group of assailants who
assaulted and robbed Moreno. The
prosecution provided further evidence through the testimony of its gang expert
that Pineda and Zavala were active members of the Barrio Small Town gang; that
Barrio Small Town was in an alliance with the Eastside Anaheim gang; and that
defendants committed the robbery of Moreno and the other felonies to willfully
assist, further, or promote the Barrio Small Town gang’s felonious
purpose.
The prosecutor told the
jury in Pineda’s case that “the defendant willfully assisted, furthered or
promoted felonious criminal conduct by members of the gang by either directly
committing a felony offense or aiding and abetting. A felonious criminal conduct means basically
any of the crimes charged in terms of the felonies.†And, as to Zavala, the prosecutor told the
jury, “We have numerous contacts. His OC
tattoo on his chest. His moniker. Of course, the facts of this case. And [the expert’s] opinion that he was a
member of the gang, and an active participant in this particular crime.â€
The robbery of Moreno
formed the basis for both Pineda and Zavala’s convictions for robbery and one
of the elements of the crime of active participation in a criminal street
gang. The concurrent two-year sentence
for the gang crime was a second punishment for the same act. Accordingly, the sentence should have been
stayed pursuant to section 654.
The judgment is modified
to reflect that the sentence imposed for each defendant’s conviction for active
participation in a criminal street gang is stayed pursuant to section 654. As modified, the judgment is affirmed. The trial court is directed to send a
corrected abstract of judgment to the Department
of Corrections.
Thompson, J.
name="_ftn2" title=""> [1] All
statutory references are to the Penal Code unless otherwise stated.
