P. v. Santana

Filed 9/11/07 P. v. Santana CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Patricia M. Schnegg, Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Andres Santana was convicted, following a jury trial, of one count of false imprisonment in violation of Penal Code[1]section 236, one count of kidnapping in violation of section 207, subdivision (a), three counts of assault with a firearm in violation of section 245, subdivision (a)(2), two counts of making criminal threats in violation of section 422, one count of second degree robbery in violation of section 211 and one count of attempted second degree robbery in violation of sections 211 and 664. The jury found true the allegations that six of the crimes were committed for the benefit of a criminal street gang within the meaning of section 186.22, and also found true various firearm allegations for eight of the crimes. Appellant admitted that he had suffered a prior serious felony conviction within the meaning of sections 667,

subdivision (a)(1), 1170.12 and 667, subdivisions (b) through (i) (the "three strikes" law), and served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to a total term of 51 years, eight months in state prison.

Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the jury's true findings on the gang allegations. We affirm the judgment of conviction.

Facts

On March 13, 2005, appellant was at the residence of his girlfriend, Rosanna Garcia ("Rosanna"). Appellant was a member of the Temple Street gang, and his face and head had numerous tattoos proclaiming his gang allegiance. Rosanna lived with various members of her family, including her sister Ruby Garcia ("Ruby") and their mother Catalina Madera.

Ruby later told police officers that appellant exposed a gun in his pocket and when he attempted to pull it out, it discharged a round into the ground. Madera observed appellant accidentally fire a round from a gun. According to both women, Rosanna called a taxi to come get appellant. When the taxi arrived, Rosanna walked appellant to the car. He forcefully pulled her in. When interviewed still later by police detectives, both women added that appellant had his gun out at the taxi, and ordered Rosanna to get in the car. Ruby said that appellant had the gun pointed at Rosanna.

The unofficial taxi that Rosanna called was driven by Marvin Pernilla. He had driven Rosanna on two prior occasions. Pernilla received a call from Rosanna at about 11:30 p.m. on March 13, and arrived at her residence about midnight. Rosanna approached him and said that she wanted him to drive to a location. Appellant appeared, got into the front passenger seat of Pernilla's car, took out a revolver and told Rosanna to get in the car. She got into the back seat. Appellant then pointed the gun at Pernilla and told him that he was going to do what appellant wanted. Appellant then told Pernilla to drive. Pernilla complied.

Pernilla noticed appellant's tattoos. Pernilla felt fear. To Pernilla, appellant's tattoos signified membership in a gang. He understood the dot tattoos near appellant's eyes to mean death.

While Pernilla was driving, appellant told Rosanna that he was going to take her to Arizona. She asked him to let her go and not take her. At one point, appellant directed Pernilla to drive to a liquor store. There, about 12:45 p.m., appellant asked Pernilla for money. Pernilla had only some coins. Appellant pointed his gun at Pernilla and forced Pernilla to accompany him into the store. He told Pernilla that he would kill him if he did not do what appellant wanted. Appellant concealed the gun inside his jacket. Appellant used his own money to buy a beer in the liquor store.

Back at the car, appellant took over the driving. Appellant continued to threaten to kill Pernilla if he didn't do what he wanted. Appellant also continued to say that he was going to take Rosanna to Arizona. At one point, while appellant was driving, he stuck his arm out the car window and fired his gun.

Appellant went to a house in a residential area, and knocked on the door, but did not go inside. Appellant resumed driving, stopped at a gas station and got out of the car, but did not get any gas. Appellant then resumed driving. He drove to within a block of Rosanna's residence, saw police cars in front of the house, and drove away.

The police were at Rosanna's house because members of her family had called 911 after appellant forced Rosanna into the car. Officers remained at the house for two to three hours.

After leaving Rosanna's house, appellant drove to the Rampart area, which was part of the territory claimed by the Temple Street gang. He drove around for about 10 minutes. When he spotted a pedestrian on Rampart near Plata, he pointed his gun out the car window and said, "What neighborhood are you from?" He then asked for money. The pedestrian gave appellant money. Appellant also took a silver or gray chain from the pedestrian. Appellant then drove away.

Appellant then went to a gas station, asked for information, went to a second gas station, forced Pernilla to put gas in the car, then drove to an apartment building. Appellant pointed his gun at Pernilla and forced him and Rosanna to accompany him to the building. There, appellant knocked on an apartment door, but no one answered. All three returned to the car and appellant resumed driving.

Appellant drove to a cul-de-sac near Clinton and Westmoreland. He stopped the car and told Rosanna that he was going to see his mother. Appellant told Pernilla that he would kill him if he tried to escape. Appellant then left with Rosanna and the car keys. Pernilla had a spare key and was able to drive away. Pernilla was able to speak with some friends on his cell phone. As a result, the police contacted Pernilla on his cell phone.

Appellant and Rosanna went to appellant's mother's house. He asked his mother, Cecilia Lara, for $200 to pay for the taxi in which they had arrived, but Lara had no money. She was unhappy that appellant had new tattoos. A physical and verbal fight ensued. Lara told appellant that she would prefer to see him dead. He pointed a gun at his head. Lara snatched the gun away. The two struggled and appellant recovered the gun. He held it to her temple. The two struggled some more. Lara was able to call 911. Appellant fled with Rosanna.

Appellant and Rosanna went to the home of Sandra Molina, appellant's sister, arriving there about 4:45 a.m. The two slept on Molina's couch. In the morning, Molina left the apartment. When she returned about 10:00 a.m., police were in the apartment and appellant had been arrested.

Police recovered a .357 Magnum under a bunk bed in the apartment. A chain with a bullet on it was found in the closet. It was later determined that a bullet casing found near Madera's house had been fired from that gun.

Los Angeles Police Officer Brandon Purece testified at trial as an expert on the Temple Street gang. He had been assigned to the Rampart Division Gang Enforcement Detail for three and one-half years. Officer Purece had investigated and assisted in investigating hundreds of crimes involving gang members. He was familiar with the Temple Street gang, whose territory extended down to Rampart Station. He had conducted numerous interviews with members of that gang. In Officer Purece's opinion, appellant was a member of the Temple Street gang.

In Officer Purece's opinion, the crimes in this case were committed to benefit the Temple Street gang. The crimes would show appellant's loyalty to the gang and would assist him in moving up in the gang structure. The violent nature of the crimes would intimidate family members and society in general. People who are intimidated by gang members are less likely to report crimes to the police and to testify at trial.

Officer Purece also testified that violent crimes by a gang can intimidate other gangs, who are less likely to come into the territory of a gang which is known for committing violent crimes. With respect to the robbery of the John Doe pedestrian, appellant's question "Where are you from?" was meant to show that appellant was a gang member and to intimidate him.

Officer Purece also testified about two cases involving members of the Temple Street gang. One conviction was for assault on a police officer with a firearm. In Officer Purece's opinion, the incident showed other gangs that the Temple Street gang was armed and not afraid to use their weapons against the police. In his opinion, the crime was committed for the benefit of the gang.

The second conviction involved the kidnapping and beating of a man believed to have stolen a wallet from a Temple Street gang member. When gang members learned that the man did not steal the wallet, they let him go. The man was very reluctant to come forward to testify and ultimately moved away from his residence for fear of retaliation.

On cross-examination, Officer Purece explained that he believed that a crime would be for the benefit of a gang if the victim was aware of the gang member's affiliation. A victim could become aware of the gang affiliation through things that the assailant member says, or by recognizing a tattoo on the assailant as a gang tattoo.

Discussion

The jury found true the allegations that appellant's assault on Rosanna, his robbery of the John Doe pedestrian and all of the crimes against Pernilla were committed for the benefit of a criminal street gang within the meaning of section 186.22. Appellant contends that the evidence showed that his crimes were personal and not gang-related, and concludes that the evidence is insufficient to support the true findings on the section 186.22 gang allegations.

Appellant concedes that there is sufficient evidence that he is a member of the Temple Street gang, a gang which has as its primary activity the commission of crimes, and that gang members have engaged in a pattern of criminal gang activity, as required by section 186.22. He challenges only the sufficiency of the evidence to prove section 186.22's requirement that the crimes were "'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.'" (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.)

In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)

"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314, internal citations omitted.)

"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Stanley (1995) 10 Cal.4th 764, 792-793, internal quotation marks and citations omitted.)

Appellant points out that he did not yell out his gang's name, throw gang signs or make any references to his gang during the commission of crimes. He concludes that the crimes could not be for the benefit of the gang.

Appellant had tattoos with the name of his gang in various locations on his head, including the words "Temple Arrow" on his neck, "Temple" on the left side of his head and "Temple" on the back of his head. He also had "1923" tattooed on his forehead, "TST" under his lip and "WS" and "ST" on the back of his head. Pernilla and appellant's mother both recognized these tattoos as showing gang membership. Thus, there was no need for appellant to yell the name of his gang or to make gang signs. His face was a billboard for his gang affiliation.

Appellant may have had a personal reason to assault Rosanna. He stated that he wanted her to go to Arizona with him, although ultimately he did not force her to go. Even if appellant did have a personal reason for assaulting her, he did so in front of witnesses, and such an assault would certainly benefit the gang, in the same manner as any other violent crime.

We see no personal motivation for appellant to have committed crimes against Pernilla. There is no evidence that appellant had ever met Pernilla before and he did not seem to have a financial motive in committing the crimes. Appellant had Pernilla drive him around for quite a while, and also drove Pernilla himself. At one point, appellant returned to Temple Street gang territory, where he issued a gang challenge to an unidentified pedestrian and then robbed him. Thus, it is reasonable to infer that appellant's crimes against Pernilla were part of a large gang-related crime spree.

Officer Purece identified benefits to the gang from appellant's crime. The officer testified that violent crimes by gang members intimidate family members and society in general. People who are intimidated by gang members are less likely to report crimes to the police and to testify at trial. Officer Purece also testified that violent crimes by a gang can intimidate other gangs, who are less likely to come into the territory of a gang which is known for committing violent crimes.

Logically, these are both benefits to the gang. Intimidation of witnesses and victims benefits the gang by resulting in fewer arrests and convictions for any crime. Intimidation of other gangs makes it easier for the gang to control its own territory.

We do not agree with appellant that there were no facts offered to support Officer Purece's opinions. Officer Purece had investigated and assisted in the investigation of hundreds of crimes involving gang members. This is certainly a solid foundation for assessing the impact of violent crimes by gang members on victims and witnesses. Officer Purece gave a specific example of the intimidating effect of violent crime in a case in which an individual was kidnapped and beaten by Temple Street gang members who mistakenly believed the victim had stolen a gang member's wallet. The victim was very reluctant to come forward and testify and ultimately moved away from his residence for fear of retaliation.

Further, it was reasonable to infer that the crimes in this case had such an intimidating effect. Rosanna did not testify at trial. Her mother and sister did testify, but denied making earlier statements to police which were unfavorable to appellant. Madera, for example, denied that she had seen appellant with a gun or push or pull Rosanna into the car.

We cannot agree with appellant that the facts of this case are similar to the facts of People v. Martinez (2004) 116 Cal.App.4th 753 or In re Frank S. (2006) 141 Cal.App.4th 1192.

There is nothing in the record to indicate that any expert testimony was offered in Martinez. Further, there was nothing in the circumstances of the crime to connect the crime to appellant's gang. As we explain, supra, both are present here.

In Frank S., the minor possessed a concealed knife. An expert witness opined that the knife possession would benefit the minor's gang because it would help provide protection if the minor or a fellow gang member was assaulted by rival gang members. The court reversed the true finding on the gang allegation, finding that there was no evidence to support the expert's opinion.

We see no similarity between appellant's crimes and those of the minor in Frank S. In that case, the crime was possession of a concealed knife. Since the knife was concealed, it could not have benefited the gang by, for example, intimidating members of the public or rival gang members. There was no evidence that the minor's fellow gang members knew that the minor was carrying a knife and relied on the minor for protection or felt safer. There was no evidence that the knife was actually used to protect the minor or others from rival gang members. There was likewise no evidence that the knife was likely to be used for such purposes, such as evidence that the minor was in gang territory or that rival gang members were nearby. Thus, there was no actual benefit to the gang. Here, appellant actually committed crimes, and Officer Purece explained that knowledge of those crimes committed would intimidate the community. Given the police response to the 911 call by Rosanna's relatives, we have no doubt that word of appellant's crimes did spread throughout the community.

Appellant also relies on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 to support his claim. We are not bound by the decisions of intermediate federal courts. (Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 55.) Further, we agree with our colleagues in the Third District Court of Appeal and Division 4 of this District Court of Appeal that Garcia's interpretation of California law is incorrect. (People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero (2006) 140 Cal.App.4th 15, 19.)

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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