P. v. Staten
Filed 1/23/13 P. v. Staten CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DARRYL LAMONT STATEN,
Defendant and Appellant.
B236234
(Los Angeles
County
Super. Ct.
No. TA115083)
APPEAL from
a judgment of the Superior Court
of
County.
Ronald V. Skyers, Judge.
Reversed in part and affirmed in part.
James M.
Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
>
Appellant
Darryl Staten was convicted of two counts of
counts 1-2)
title="">[1];
possession of a firearm by a felon (§
12021, count 3); and assault by means likely to produce great bodily injury (§
245, subd. (a)(1), count 5). Gang and
firearm allegations attached to counts 1 and 2 were found true, as were prior
conviction allegations. Appellant was
sentenced to a total of 43 years eight months in prison.
On appeal,
appellant contends that there was insufficient
evidence to support the criminal street gang enhancements. He also argues that the trial court erred in
denying his request to continue sentencing so that he could present a new trial
motion. We find that the gang
enhancements were not supported by substantial evidence. We affirm in all other respects.
FACTS
Evidence
On the
morning of October 29, 2010,
Maria Roman-Malagon was walking with her two children near Maie
Avenue and 99th Street
in Los Angeles. She saw a suspicious-looking man hiding
nearby and, feeling afraid, walked into the street to try to avoid him. The man, appellant, came up behind her and
asked her where her money was. When she
told him she did not have any money he demanded her cell phone. She initially refused, but after he lifted
his shirt and pulled out a gun, she turned her phone over. Appellant left, and Roman-Malagon walked to a
nearby senior center to call her husband.
Eventually, the police were also called.
Later, Roman-Malagon identified appellant from a photographic lineup.
At about 11:00 p.m. that evening, Tyese Pryor was at the
train station near 103rd Street
and Graham Avenue when
appellant approached her. She told him
to get away. When he would not, she ran
from the train station, terrified.
Appellant
caught Pryor and beat her to the ground.
He told her he had a gun. Pryor
testified, “He was very violent, very aggressive, and he was serious. I’m surprised that he didn’t kill me. He was very violent in his beating with his
fists, both fists. He beat me down to
the ground. I asked him not to—a perfect
stranger. Once again I’m gonna state I
don’t know him from a can of paint. I
live all the way in Hawaiian Gardens. He took off running. . . . That’s all I remember. At the time I was pregnant with my daughter
that I just had in March.†Before he ran
away, appellant took the cell phone and cash that Pryor had in her purse. Pryor suffered injuries to her face.
Officer
Oscar Villareal was in the area investigating an unrelated incident, when he
was approached by a man on a bicycle who told him that he witnessed a woman get
beaten and robbed at the nearby train station.
The witness had followed the perpetrator to the rear side of a nearby
apartment complex. Officer Villareal and
three other officers approached the back of the complex. They saw appellant in the parking area. When he was ordered to stop, appellant turned
around, saw the officers, and ran away.
Officer
Villareal jumped in his police car. As
he was driving, he used the car’s lights to illuminate the street underneath
parked cars. As he passed a large truck,
he saw appellant hiding underneath it, using a tree branch to try to conceal
himself.
Appellant
was handcuffed and taken into custody.
Shortly after, Pryor identified appellant. A handgun was recovered nearby.
At trial,
appellant stipulated that he had previously been convicted of a felony.
Expert Testimony
Los Angeles
Sheriff’s Deputy John Ganarial testified as a gang expert.
Deputy
Ganarial stated that reputation and respect are vital to a gang. A gang member gains respect by “putting in
work,†of which robbery and possessing a loaded firearm are examples. “Putting in work†strengthens and enhances a
gang member’s individual reputation and the gang as a whole. If a gang acquires a reputation for being
soft or weak, other gangs can move into the territory and the unsuccessful gang
will get “punked.â€
The
significance of having a “turf†or territory is that members of other gangs
cannot freely enter. But a member of a
strong gang may enter into anther gang’s territory based on reputation.
Violence is
looked upon favorably within gangs because it instills fear in the community. Gang members can commit crimes in broad
daylight without fear of witness testimony or reports to the police. Gang members may elevate their own standing
within the gang by using a gun when committing a crime, because it demonstrates
their propensity for violence.
Deputy
Ganarial opined that appellant is a member of the Mona Park Compton Crips. Appellant has tattoos on his forearms and
hands signifying his allegiance to the gang.
His gang moniker is “D.â€
According
to Deputy Ganarial, the Mona Park Compton Crips is a gang that was started in
the 1970’s and has about 150 active members.
The primary activities of the gang include murder, shootings, robbery,
car theft, and possessing weapons and ammunition. The gang is relatively strong and commits
crimes outside of its own territory.
Neither of the crimes committed by appellant was within the gang’s
territory.
When given
a hypothetical question based on the facts of this case, Deputy Ganarial opined
that the offenses were committed for the benefit of, at the direction of, or in
association with a criminal street gang.
Deputy Ganarial testified that the crimes benefitted appellant’s and the
gang’s reputation because “People are gonna find out. He’s committing a violent crime in another
gang area. . . . When they commit these
crimes word gets around, and that’s what my opinion is based on.†The fact that he committed the crimes using a
loaded gun “definitely aids his reputation.
It shows that he’s armed and willing to use it, and that has the means
to show his violence.â€
DISCUSSION
A. Gang Enhancements
Appellant
contends that the criminal street gang enhancements were improperly imposed
because there was a lack of evidence that the crimes were committed for the
benefit of the Mona Park Compton Crips.
The People disagree. We find the
jury’s true findings were not supported by substantial evidence and therefore
reverse those findings.
“In
addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] The appellate court presumes in support of
the judgment the existence of every fact the trier could reasonably deduce from
the evidence. [Citations.] The same standard applies when the conviction
rests primarily on circumstantial
evidence. [Citation.] Although it is the jury’s duty to acquit a
defendant if it finds the circumstantial evidence susceptible of two reasonable
interpretations, one of which suggests guilt and the other innocence, it is the
jury, not the appellate court that must be convinced of the defendant’s guilt
beyond a reasonable doubt.
[Citation.] ‘“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.
[Citation.]â€â€™ [Citation.]†(
1053-1054; see also People v. Martinez
(2008) 158 Cal.App.4th 1324, 1329, People
v. Ochoa (2009) 179 Cal.App.4th 650, 657 [applying substantial evidence
test to contentions that gang enhancements were unsupported by the evidence].)
A sentence
enhancement may be imposed pursuant to section 186.22, subdivision (b)(1), on
“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 . . . .†The enhancement
requires “both that the felony be gang related and that the defendant act with
a specific intent to promote, further, or assist the gang.†(People
v. Rodriguez (Dec. 27, 2012, S187680 [2012 Cal. LEXIS 11909], __
Cal.4th __, __.)
Not every
crime committed by a gang member is gang related. (People
v. Albillar (2010) 51 Cal.4th 47, 60.)
Furthermore, a finding that an offense is subject to section 186.22,
subdivision (b), cannot be based on a gang expert’s testimony alone. (People
v. Ochoa, supra, 179 Cal.App.4th
650, 657.) “[T]he record must provide
some evidentiary support, other than merely the defendant’s record of prior
offenses and past gang activities or personal affiliations, for a finding that
the crime was committed for the
benefit of, at the direction of, or in association with a criminal street
gang.†(People v. Martinez (2004) 116 Cal.App.4th 753, 762.)
Here, we
find a lack of substantial evidence that appellant’s crimes were committed for
the benefit of, at the direction of, or in association with a criminal street
gang. There is no serious dispute that,
at the time he committed the crimes, appellant was an active member of the Mona
Park Compton Crips, a criminal street gang.
The evidence presented, however, was insufficient to support a finding
that appellant’s crimes were committed for the benefit of anyone but
himself.
The case of
People v. Ochoa, supra, 179 Cal.App.4th 650, involved a matter similar to the one
here. The defendant, an active gang
member, used a shotgun to threaten and carjack the victim’s car. In committing the crime, the defendant made
no apparent gang signs or signals, and he acted alone. (Id.
at p. 653.) After hearing gang expert
testimony, the jury found section 186.22, subdivision (b) allegations true.
The Court
of Appeal reversed, noting that a number of cases (e.g., People v. Albarran (2007) 149 Cal.App.4th 214, 227;
925, 931; In re Frank S. (2006) 141
Cal.App.4th 1192, 1199) have held that a true finding cannot be based solely on
a gang expert’s unsubstantiated testimony that a gang member defendant
committed a crime for the benefit of, at the direction of, or in association
with a gang. (People v. Ochoa, supra, 179 Cal.App.4th at pp. 657-661.) Specific evidentiary support is required to
make such a finding; expert testimony based purely on speculation that a crime
was gang related is insufficient. (
The
appellate court in People v. Ochoa
recognized that the defendant “did not call out a gang name, display gang
signs, wear gang clothing, or engage in gang graffiti while committing the
instant offenses. There was no evidence
of bragging or graffiti to take credit for the crimes. There was no testimony that the victim saw
any of defendant’s tattoos. There was no
evidence the crimes were committed in [the defendant’s gang’s] territory or the
territory of any of its rivals. There
was no evidence that the victim of the crimes was a gang member or a [gang]
rival. Defendant did not tell anyone . .
. that he had special gang permission to commit the carjacking. [Citation.]
Defendant was not accompanied by a fellow gang member.†(179 Cal.App.4th at p. 662, fn.
omitted.) The foregoing passage could
just as aptly describe the situation in the instant case. Appellant committed the crimes by himself, he
did not identify himself as a gang member, either by words, gestures or
clothing, and the crimes took place outside of Mona Park Compton Crips territory. There was no evidence that the crimes would
benefit the gang’s reputation or assets, or provide any other sort of benefit.
In
contending that the gang’s reputation would benefit from appellant’s crimes,
the People largely fall back on the argument that appellant sported visible
gang tattoos. But, as in
found insufficient (179 Cal.App.4th at p. 662.), there was no evidence in this
case that either the victims or any witnesses to the crimes noticed appellant’s
tattoos. The People cite to
visible gang tattoos supported the section 186.22, subdivision (b)
enhancement. That case is clearly
distinguishable from the instant one, however—the defendant in
“with a gang confederate.†We are aware
of no authority that a lone perpetrator acts for the benefit of, at the
direction of, or in association with a gang simply because he commits a crime
while sporting gang tattoos that go unseen by the victims.
Moreover,
in explaining the basis for his opinion that (under the posed hypothetical) the
offenses were committed for the benefit of, at the direction of, or in
association with a criminal street gang, Deputy Ganarial did not rely on the
fact that appellant had gang tattoos.
Instead, Deputy Ganarial testified that the crimes benefitted
appellant’s and the gang’s reputation because “People are gonna find out. He’s committing a violent crime in another
gang area. . . . When they commit these
crimes word gets around, and that’s what my opinion is based on.†This testimony was purely conjectural. Other than his belief that word of “these
crimes . . . gets around,†Deputy Ganarial identified no basis for his opinion
that the gang’s reputation would be enhanced.
There was no evidence that either of the victims had any knowledge of
appellant’s gang affiliation (Pryor did not “know him from a can of paintâ€), or
that anyone with such knowledge was aware of the crimes. Similarly, there was no evidence that in
committing the crimes, appellant sought to make his gang affiliation
known. The idea that appellant committed
the crimes for the benefit of the gang was purely speculative. The jury’s true finding on the section
186.22, subdivision (b) allegation, therefore, was not supported by substantial
evidence.
B. Denial of Continuance and Trial Transcript
Appellant
next contends that the trial court erred when it denied his requests to
continue sentencing and for a trial transcript so that he could prepare a new
trial motion. We find appellant’s
argument is not well taken. A summary of
the trial court proceedings helps to explain why.
The trial
lasted over a total of two days. On
August 2, 2011, both parties gave opening statements, the prosecution presented
its evidence, and both parties rested.
The parties gave closing arguments on August 3, 2011, and the jury
returned with its verdicts the same day.
After the verdict was read, appellant agreed to have the court trial on
prior conviction allegations and sentencing both heard on August 22, 2011.
When
appellant arrived at court on August 22, he said that he was not prepared for
sentencing because he thought the hearing was on August 29. The court stated that it would continue the
sentencing hearing, and requested a convenient date. Appellant responded that he wished for the
hearing to occur on August 25.
At the
August 25 hearing, appellant immediately announced that he had a motion that he
wanted to be heard. The court indicated
it had just received a motion from appellant to continue the hearing and for a
transcript. The court noted that the
motion was late, but decided to consider it anyway. The court then told appellant that it was
denying the continuance “because we had set this before, and it was continued
for you,†and the court found a lack of good cause for why sentencing should
not take place that day. It then ruled
on the prior conviction allegations and sentenced appellant.
Section
1050, subdivision (e) provides:
“Continuances shall be granted only upon a showing of good cause. Neither the convenience of the parties nor a
stipulation of the parties is in and of itself good cause.†The granting or denial of a continuance rests
within the sound discretion of the trial judge, and when a continuance is
denied, the burden is on the defendant to establish an abuse of
discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) “A reviewing court considers the
circumstances of each case and the reasons presented for the request to
determine whether a trial court’s denial of a
continuance was so arbitrary as to deny due process.†(People
v. Doolin (2009) 45 Cal.4th 390, 450.)
Appellant
is unable to establish that the trial court’s denial of his continuance motion
was arbitrary. A defendant seeking to
continue a hearing must file and serve written notice at least two court days
before the hearing sought to be continued.
(§ 1050, subd. (b).) No such
notice was filed by an appellant.
Section 1050, subdivision (d) does provide that a party need not comply
with the notice requirement if the party shows good cause for the failure to
comply. Appellant, however, presented
absolutely no explanation for failing to comply with the notice requirement. The trial court, therefore, did not abuse its
discretion in denying appellant’s motion for a continuance. (See People
v. Leavel (2012) 203 Cal.App.4th 823, 830 [continuance motion properly
denied when defendant gave trial court no reason for delayed notice].)
Having properly denied the requested
continuance, there was no need for the trial court to order that appellant
receive a trial transcript. A defendant
seeking to obtain a transcript in the trial court must show that the requested
transcript is necessary to effectively prepare a motion for new trial. (People
v. Bizieff (1991) 226 Cal.App.3d 1689, 1702.) A motion for new trial must be made and
determined before judgment.
(§ 1182.) Because there was no
possibility that appellant could prepare a new trial motion before judgment,
appellant had no need for the trial transcript prior to his appeal.
DISPOSITION
The true
findings on the gang enhancements are reversed and the gang enhancements
stricken. In all other respects, the
judgment is affirmed. The trial court is
directed to prepare an amended abstract of judgment and to send a certified
copy of the same to the Department of Corrections and Rehabilitation.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
DOI TODD,
J.
CHAVEZ, J.
name="_ftn1" title="">[1] Unless
otherwise indicated, all further statutory references are to the Penal Code.
if appellant’s motion for continuance were timely, appellant fails to explain
how a trial transcript would have assisted him in drafting a new trial
motion. In his opening brief, appellant
simply points out that his request for a transcript was denied. He does not indicate what, if anything, would
have been the basis for a new trial motion or how the transcript would have
been useful.
