P. v. Thomas

Filed 2/3/10 P. v. Thomas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Judge.

Matthew D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Jermany Devon Thomas of misdemeanor assault. (Pen. Code,  241, subd. (a).)^[1] At the sentencing hearing, the trial court ordered Thomas to register as a member of a criminal street gang. Thomas argues the registration requirement was not supported by sufficient evidence. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Christopher Dudley was incarcerated in Kings County jail after allegedly committing grand theft. He was brought to court for a court appearance and placed in a holding cell with three African-Americans and two Hispanics. Each inmate was handcuffed. As he was sitting in the corner of the holding cell, he was approached by Caseall Ludell Reed. Reed asked Dudley if he was about that white thing. Reed stated he was a Crip. Thomas also approached Dudley. Dudley denied he was a racist, but Reed and Thomas began kicking him anyway. Dudley was kicked repeatedly. Thomas did not say anything before the attack. After the attack, Thomas stated he did not kick Dudley in the face because he did not want to get blood on his shoes and he had to make a name for himself to be in a gang, and so that no one would mess with him. Reed and Thomas told Dudley that he should not report the incident or he would be killed. Dudley reported the attack when he was removed from the holding cell to make his court appearance. Dudley believed that Thomas was angry with him because Thomas thought Dudley spat at him on an occasion when Dudley actually was spitting into the toilet.

Kings County Deputy Sheriff Charles Buhl identified the Crips as an active criminal street gang in Hanford and Kings Counties. He identified their primary activities as homicide, assault, and narcotic sales. He identified three Crips gang members. Reed was identified as a member of the Hanford Crips criminal street gang.

Buhl did not find any field identification cards on Thomas, nor could he find any prior gang contacts for Thomas. This is not unusual because frequently newer gang members hide their membership to avoid gang enhancements. Based on the reports in this case, and the comments made during and after the assault, Buhl opined that Thomas was an associate of the Crips. Buhl opined that Thomass actions in this case could benefit the Crips criminal street gang. He based that opinion on the fact that Reed identified himself as a Crip; Thomas then assaulted Dudley, apparently to earn respect for himself and the gang; and afterward, Thomas stated he was making a name for himself as a gang member. Buhl also concluded that Thomass actions were in association with the gang for the same reasons. The attack could have been at the direction of Reed based on these facts and Thomass comments after the attack that he had to make a name for himself. The threat afterward also is typical gang conduct because Reed and Thomas were attempting to intimidate Dudley so he would not report the crime. These actions indicate the attack was committed for the benefit of the Crips criminal street gang because of the intimidation of others that would occur as a result of the attack.

Reed testified that Dudley initiated the altercation by kicking Thomas and that Thomas responded only to protect himself. Reed accused Dudley of making a gang remark before the altercation that indicated Dudley was a member of a White supremacist gang. Reed denied identifying himself as a Crip, denied current membership in the criminal street gang, and denied any involvement in the altercation.

Thomas and Reed were charged with assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)), making criminal threats ( 422), and attempting to dissuade a witness from testifying ( 136.1, subd. (b)(1)).^[2] These crimes allegedly were committed in association with, or for the benefit of, a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A) or (B).

The jury found each defendant not guilty of the charged crimes, but found each defendant guilty of the lesser included offense of misdemeanor assault. Although unnecessary, the jury found the gang enhancement allegations for each count not true.

At the sentencing hearing, the prosecutor requested the trial court impose a gang registration requirement pursuant to section 186.30, subdivision (b)(3), notwithstanding the jurys findings on the gang enhancements. Thomas conceded the jurys findings on the gang enhancements were unnecessary in light of the not guilty verdicts on the felony charges, but argued the jurys findings established the altercation was not gang related and the trial court should not impose the registration requirement. The trial court sentenced Thomas to 180 days in jail and imposed the gang registration requirement.

DISCUSSION

The trial court relied on section 186.30, subdivision (b)(3) to impose the registration requirement. This section provides that the trial court may require a defendant convicted of a crime to register as a member of a criminal street gang if the court finds [the crime] is gang related at the time of sentencing or disposition. (Ibid.) Gang related was interpreted by this court to mean related to a criminal street gang as defined in section 186.22, subdivisions (e) and (f). (In re Jorge G. (2004) 117 Cal.App.4th 931, 940 (Jorge G.).) Jorge G. also concluded that the elements to impose the registration requirement must be proven by a preponderance of the evidence (Id. at p. 944).

Thomas argues the gang registration requirement imposed by the trial court was not supported by substantial evidence. The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [] 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. [Citation.] 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 witnesss credibility for that of the fact finder. [Citations.] [Citation.] [Citation.] (People v. Chinchilla (1997) 52 Cal.App.4th 683, 689-690.) We apply the same test to determine whether substantial evidence supports the trial courts findings that a crime was gang related. (Jorge G., supra, 117 Cal.App.4th at p. 945.)

A crime is gang related if it is related to a criminal street gang as defined in section 186.22, subdivisions (e) and (f). The elements of this definition require: (1) an ongoing organization or group, (2) of three or more persons, (3) having as one of its primary activities the commission of the crimes enumerated in section 186.22, subdivision (e)(1)-(25), (4) having a common name or symbol, and (5) whose members individually or collectively have engaged in a pattern of criminal gang activity. This pattern of gang activity must consist of: (a) two or more of the offenses enumerated in section 186.22, subdivision (e)(1)-(25), provided that at least one offense occurred after the effective date of the statute; (b) the last offense occurred within three years of the one before it; and (c) the offenses were committed on separate occasions or by two or more persons. (Jorge G., supra, 117 Cal.App.4th at p. 944; see also People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) In order to prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs. [Citation.] (Hernandez, at pp. 1047-1048.)

As we understand Thomass argument, he asserts the Peoples theory at trial was that Thomas committed the assault because he was going to prison and he wanted to establish himself in the Crips criminal street gang so that while in prison he would be protected from other inmates by Crips gang members. The People presented expert testimony by Buhl to support this theory. According to Thomas, Buhl impermissibly opined that Thomas was attempting to join or align himself with the Crips, thus destroying the foundation for the registration requirement.

Even if we assume, arguendo, that Buhls opinion on this topic was improper, Thomas cannot prevail. As we noted in Jorge G., for the purposes of section 186.30, subdivision (b)(3), gang-related crimes include, at a minimum, crimes committed for the benefit of, in association with, or at the direction of a criminal street gang. (Jorge G., supra, 117 Cal.App.4th at p. 941.) Dudley testified that Reed announced himself as a Crip. Thomas began kicking Dudley immediately thereafter. Buhl testified that the Crips are a criminal street gang within the meaning of section 186.22, and that Reed was a member of the Crips. This evidence was more than sufficient to establish that Thomas committed the crime in association with a Crips gang member. When Dudleys testimony that Thomas commented he needed to participate in the attack because he had to establish himself as a gang member is added to the above, it is clear there is no merit to Thomass argument.

Finally, Thomas suggests that the trial court should not have imposed the criminal street gang registration requirement because the jury found that each of the gang enhancements alleged in the information were not true. This suggestion must be dismissed because of the different standards of proof involved. The prosecution was required to prove the enhancements using the beyond-a-reasonable-doubt standard. The trial court was permitted to impose the gang registration requirement if it found the crime was gang related by a preponderance of the evidence. Evidence found insufficient under the beyond-a-reasonable-doubt standard may be sufficient under the preponderance of evidence standard.

DISPOSITION

The judgment is affirmed in its entirety, including the requirement that Thomas register as a member of a criminal street gang.

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^* Before Levy, Acting P.J., Cornell, J. and Kane, J.

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

^[2]Thomas and Reed also were charged with unlawful participation in a criminal street gang, in violation of section 186.22, subdivision (a). Apparently, this charge was either dismissed or rendered moot by the jurys verdict.