P. v. Welcome
Filed 6/20/12 P. v. Welcome CA2/3
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
>
THE PEOPLE, Plaintiff and Respondent, v. ERON LEWIS WELCOME, Defendant and Appellant. | B230949 (Los Angeles County Super. Ct. No. KA091887) |
APPEAL
from a judgment of the Superior Court of
County,
George Genesta, Judge.
Affirmed in part, reversed in part, vacated in part, and remanded
with directions.
Law
Offices of Mark J. Werksman, Mark J. Werksman and Kelly C. Quinn, 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, Scott A. Taryle and
Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant Eron Lewis Welcome
appeals from the judgment entered following his conviction by jury of
present (Pen. Code, §§ 459, former 667.5, subd. (c)(21)) with admissions
he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)), a
prior serious felony conviction (Pen. Code, § 667, subd. (a)), and a prior
felony conviction for which he served a separate prison term (former Pen. Code,
§ 667.5, subd. (b)) and a finding he committed the offense for the benefit
of a criminal street gang (former Pen. Code, § 186.22, subd. (b)(1)). The court sentenced appellant to prison for
24 years. We affirm the judgment, except we reverse it in part, vacate appellant’s
sentence, and remand the matter for resentencing with directions.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence
established about 11:00 a.m. on September 10, 2010, Virginia Zanias and her
daughter Whitney, age 23, were in the kitchen of Zanias’s home in the 20300
block of Portside Drive in Walnut.
Codefendant Richard Hoover
name="_ftnref1" title="">[1] repeatedly rang the
doorbell and knocked on the locked front door.
Someone then tried to open the door.
Zanias heard something that sounded like someone trying to kick in the
door. Looking through dark glass in the
door, Zanias saw appellant and Hoover at the front door. Appellant was an African-American and Hoover was a Caucasian. Appellant put his face against the glass to
try to look inside. Zanias did not
answer the door.
Appellant, then Hoover, went through a gate on the
side of the house and proceeded to its backyard. Zanias later looked out a window in a door
that led from a bedroom to the backyard, and saw appellant. He was wearing a dark, blue and white striped
shirt and blue jeans.
After
appellant and Hoover went by, Zanias heard squeaking and scratching
sounds. In the back of the house there
were two windows that led to a foyer and family room. Appellant and Hoover were there, and Zanias
heard them there “making a scratching sound.â€
The left window, for the foyer, had a screen. Zanias testified the screen was “on the
window itself.†The screen was always on
the window except when it was cleaned, and the screen was removed from the
inside. Whitney saw appellant standing
in front of the window, close to it.
During cross-examination, Whitney testified she could “hear scraping
noises, so I’m assuming that they were trying to open the window.†Whitney heard the movement of appellant and
Hoover at the window but she could see only one of them from her vantage
point. Whitney heard the screen pulled
off. The windows were not opened. Someone shook a door in the back to see if it
was unlocked. None of the doors or
windows were broken open.
About 11:30 a.m. on September 10, 2010, Los Angeles County Sheriff’s
Deputy Marc Saunders received a call about a
appellant and Hoover running towards him.
Hoover was carrying a large screwdriver.
Saunders told them at gunpoint to stop, but the two continued
running. Hoover discarded the
screwdriver. Deputies eventually
apprehended the two.
After deputies arrived at Zanias’s home, she observed the screen on the
above mentioned left window was off. She
testified the screen was “scrunched up.â€
The screen previously had not been in that condition. A Los Angeles County forensic identification
specialist unsuccessfully tried to retrieve prints from the left window.
The parties stipulated Rolling 30’s Harlem Crips (Rolling 30’s) was a
criminal street gang within the meaning of former Penal Code section
186.22. Los Angeles Police Officer James
Moon, a gang expert, testified as follows.
Appellant was a Rolling 30’s gang member whose gang moniker was Big
Easy. Appellant was about 24 or 25 years
old. A photograph depicted tattoos on
appellant’s arm. One depicted the tattoo
OHC, which stood for Original Harlem Crip.
The photograph also depicted designations for cliques within Rolling
30’s. Another photograph depicted
another Rolling 30’s tattoo. Original
gangsters (O.G.’s) had been in the gang for years, committed crimes, and had
the word “Big†in their monikers. They
were the “shot-callers†of the gang and gave orders. The O.G.’s had younger persons who were like
assistant managers. The “soldiers†were
youngsters.
The Rolling 30’s were
notorious for disciplining members who did not “put in work,†i.e., commit
crimes. The following occurred during
the prosecutor’s direct examination of Moon: “Q. Does that include the managers or the
shot-callers? [¶] A.
Yes, that’s who would order stuff like that. At times they do put in work themselves. That’s usually when they do it with younger
gang members to show them the way, so they learn how to commit these crimes and
be successful. So it benefits the gang
itself.†Moon did not testify as to what
Hoover’s age was.
Gang members with the designation “Big†were shot-callers who did
training. Most of the time shot-callers
delegated work, but when there was someone new to the gang or someone not
putting in work, shot-callers accompanied them to show them how to work
successfully or to assure they were doing the work and returning a profit to
the gang.
Moon
testified the expectation was soldiers, the younger ones, would commit crimes
to bring money to the gang. Soldiers
dressed flashily and displayed money to recruit members. Money was also used to buy narcotics and
guns. It was common for Rolling 30’s
members to be bailed out of jail within hours of their arrest. Moon did not know if appellant “had a bailâ€
and did not remember whether appellant had been in custody the last time Moon
had seen appellant in the courtroom.
According to Moon, the
commission of burglaries was called “flocking.â€
Residential burglaries were the gang’s most common crimes. Items stolen would be converted to cash and
the cash distributed within the gang.
Persons flocking went as a group.
The youngsters called it going to school or going to work, and they
brought whatever was needed to commit the crimes, e.g., burglar’s tools. When Moon had arrested people flocking in
groups, the size of the groups had ranged from two to five persons. Moon testified he believed a screwdriver was
recovered at the scene.
Moon testified that during
the last few years, Rolling 30’s and its subsets committed crimes like the one
in this case. Last year, over 100
arrests were made for residential burglaries committed by the Rolling
30’s. They became sufficiently prevalent
KTLA did a special on the Rolling 30’s, called them knock-knock burglars, and
showed video of them knocking on windows, banging on the door, and eventually
breaking into the house when they realized no one was home.
The
following occurred during the prosecutor’s direct examination of Moon: “Let me ask you this then: If two persons went out to a home and did the
knocking at the door, ringing the doorbell, then went around to the back of the
home, attempted to break into the home and actually pried the window screen off
a window, would you consider that as part of what we’ve been talking about as
-- would you have an opinion as to whether or not that was for the benefit of
the gang? [¶] A.
Yes. [¶] Q.
Okay. [¶] Why is that?
[¶] A. If -- well, if -- we’re talking about
documented gang members, and that’s their exact M.O. I mean, all the cases I’m coming across,
they’re knocking on the front door, going around, jumping fences, going into
the back and breaking in either through windows or doors or whatever they can
get easy access and breaking into these houses.â€
The colloquy continued,
“Q. And why is it, then, though, for the
benefit of the gang and not for these two individuals committing the actual
crime? [¶] A. For
the same reason that I said earlier, is that most of those crimes aren’t happening
just in their little area. They’re in
the valley. They’re very -- miles -- 30,
40 miles east. Down south as far as
Torrance, even further than that.
[¶] They’re happening everywhere,
and they’re going outside of their area so it makes it harder for them to be
recognized, blend in more. They work as
a team. It equals success.â€
The following later
occurred: “Q. So the individual gang members are working as
part of a crew, as part of a clique?
[¶] A. That’s correct. So they can be successful and get away
without getting caught. [¶] Q. And
the proceeds of these burglaries, they go not just to the individual members,
but all the members of the clique?
[¶] A. Within that group and the one that’s running
it. Yes, there’s an expectation. Like I said, they are quick to discipline
when that’s not happening. [¶] Q.
Often, then, the money is used to bail them out if they happen to get
caught? [¶] A.
Yes.†Appellant presented no
defense evidence.
Appellant claims (1) there is insufficient evidence of
burglary, (2) there is insufficient evidence supporting the true finding as to
the gang enhancement, (3) the prosecutor committed
the trial court erroneously denied appellant’s Penal Code section 995 motion.
1. Sufficient
Evidence Supports Appellant’s Burglary Conviction.
Appellant claims there is insufficient evidence
supporting his burglary conviction because there is insufficient evidence he
“enter[ed]†Zanias’s house within the meaning of Penal Code section 459.
In People v.
Valencia (2002) 28 Cal.4th 1 (Valencia),
our Supreme Court concluded “penetration into the area behind a window screen amounts to
an entry of a building within the meaning of the burglary statute when the
window itself is closed and is not penetrated.â€
(Id. at pp. 3-4.) There is no dispute the left window at issue
was closed and not penetrated. The issue
is whether there was penetration into the area behind the screen for the left
window.
In
the present case, there was substantial evidence as follows. Appellant and Hoover intended to enter the
house even before they arrived at the screen.
After appellant and Hoover entered the backyard and passed by a window
where Zanias was watching, she heard a squeaking and scratching sound. Appellant and Hoover were at the two windows
in back of the house, including the left window, and Zanias heard them there
“making a scratching sound.†Whitney saw
appellant standing in front of the window and close to it. There was at least one screwdriver, i.e., the
one Hoover discarded.
The screen was to be removed
from the inside, i.e., there was no evidence there was anything on the screen
that could be employed to facilitate its removal from outside the house. Zanias did not find the screen in place in
the windowsill. Instead, the screen had
been thrown down and was discovered “scrunched up†in the backyard, providing
evidence appellant and/or Hoover had engaged in considerable manipulation of
the screen with significant force to remove it.
Appellant and Hoover presumably were trying to quickly enter the house;
there is no evidence appellant engaged in a discriminating effort to remove the
screen without penetrating behind it.
On these facts, the jury
reasonably could have concluded appellant and/or Hoover penetrated into the area
behind the screen. In particular, the
above facts provide substantial evidence appellant and/or Hoover used the
screwdriver as a pry tool to penetrate behind the screen, and/or used hands to
remove the screen, reaching behind it and through its plane. (Cf. Valencia,
supra, 28 Cal.4th at pp. 4-6.)
Appellant
and/or Hoover initially tried to open the front door, and Zanias heard
something at the front door like someone trying to kick in the door. Appellant and/or Hoover shook a door in the
back to see if it was unlocked. The
evidence of these acts provided evidence of a common design or plan (see
v. Ewoldt (1994) 7 Cal.4th
380, 393-398, 403) to enter the house by opening
closed apertures, and that appellant and/or Hoover penetrated into the area behind
the screen and touched the window in an effort to open it. There was sufficient evidence appellant
committed first degree burglary with a person present, including sufficient
evidence appellant “enter[ed]†Zanias’s
house within the meaning of Penal Code section 459.
2.
Finding as to the Gang Enhancement Allegation.
Appellant claims there is
insufficient evidence supporting the true finding as to the gang
enhancement. We agree. Former Penal Code section 186.22, subdivision (b)(1) is part
of the California Street Terrorism Enforcement and Prevention Act (STEP
Act). (People v. Albillar (2010) 51 Cal.4th 47, 54 (
requirement the crime to be enhanced be committed for the benefit of, at the
direction of, or in association with a criminal street gang to make it clear a
criminal offense is subject to increased punishment under the STEP Act only if
the crime is gang-related. (
Not every crime committed by
gang members is gang-related for purposes of former Penal Code section 186.22,
subdivision (b)(1). (
p. 60.) The mere fact gang members
commit a crime together does not necessarily mean the crime is gang-related for
purposes of the former section. (
As to whether appellant
committed the present offense “for the benefit of†the Rolling 30’s gang, we
first consider below the evidence absent Moon’s testimony. Viewed from that perspective, the present
case was simply one in which appellant and Hoover, initially knocking on a
residence’s front door, ultimately committed a garden-variety residential
burglary in back of the residence, using a pry tool and/or their hands.
Accordingly, appellant had
tattoos, but no evidence was presented they were visible to Zanias, Whitney,
or, for that matter, Hoover, or that any of those persons believed any of
appellant’s tattoos were gang tattoos.
No evidence was presented appellant and/or Hoover said, did, or wore
anything at the scene that indicated either of them was a gang member. No evidence was presented appellant and/or
Hoover announced a gang name or gave a gang sign. No evidence was presented Zanias and/or
Whitney knew or suspected appellant and/or Hoover were gang members. No evidence was presented Zanias or Whitney
were rival gang members.
Moreover, no evidence was
presented Hoover knew or suspected appellant was a gang member. No evidence was presented Hoover was a member
of the Rolling 30’s gang, a point respondent appears to concede. In fact, no evidence was presented Hoover was
a member of any gang. The mere fact gang
members commit a crime does not make it gang-related for purposes of former Penal
Code section 186.22 (Albillar,
the present case is one in which there was not even evidence gang
substantial evidence appellant committed burglary “for the benefit of, at the
direction of, or in association with any criminal street gang†within the
meaning of former Penal Code section 186.22, subdivision (b)(1).
The above conclusion is not
altered when Moon’s expert testimony is considered. Moon testified the burglary was committed
“for the benefit of†the Rolling 30’s gang.
However, “something more than an expert witness’s unsubstantiated
opinion that a crime was committed for the benefit of, at the direction of, or
in association with any criminal street gang is required to justify a true
finding on a gang enhancement.†(
Moon clearly testified
appellant was a Rolling 30’s member. But
Moon never testified Hoover was a member of any gang. Moon never testified Hoover associated with
gang members. Hoover associated with a
single gang member, appellant, only in the sense Hoover was with appellant
during the burglary and flight. Moon
never testified as to evidence Hoover knew appellant was a gang member or
Hoover associated with a person whom Hoover knew was a gang member. Guilt by association is insufficient.
Moon provided generic
testimony pertaining to interactions between
gang members, such as between shot-callers and soldiers. Moon testified to the effect shot-callers
usually commit crimes “with younger gang
members.†(Italics added.)
However, Moon did not
testify about any interaction between (1) a single gang member and (2) a single
nongang member or person as to whom there was no evidence the person was a gang
member. Whatever significance Moon’s
generic testimony might have had in another case, it does not provide
substantial evidence in this case. We
have no doubt a gang expert properly can testify in a given case that a person
is a gang member. However, no evidence
was presented in this case which provided a reasonable basis for an expert
opinion Hoover was a gang member, associated with a person knowing the person
was a gang member, or otherwise was involved in or connected with a gang. Moon never testified as to Hoover’s age; for
all Moon’s testimony reflects, Hoover might have been older than appellant.
Although Moon testified
appellant’s tattoos were gang tattoos, no evidence was presented they were
visible to Zanias, Whitney, or Hoover.
Moon did not testify appellant committed the present offense in Rolling
30’s territory; indeed, Moon’s testimony was to the contrary. Moon did not testify as to specific instances
in which the gang committed crimes far outside its territory for the benefit of
the gang, i.e., instances which might have provided a basis for his opinion the
instant crime--committed in Walnut--was gang-related. In any event, Moon testified, “They’re
happening everywhere.†The fact, if
true, gang-related crimes are committed everywhere cannot mean crimes committed
anywhere are necessarily gang-related.
When the prosecutor posed
his hypothetical question pertaining to whether Moon had an opinion as to
whether the present offense was committed for the benefit of the gang, Moon
replied yes and, when the prosecutor asked why, Moon replied, “If -- well, if
-- we’re talking about documented
gang members, and that’s their exact M.O.â€
(Italics added.) However, Moon
never testified Hoover was a gang member, documented or otherwise.
Moreover, the fact, if true,
the way appellant and Hoover committed the present offense was the “exact M.O.â€
of the Rolling 30’s does not make the offense gang-related. The way appellant and Hoover committed the
present offense was also the “exact M.O.†of garden-variety burglaries that are
not gang-related. Nothing about the way
appellant and Hoover committed the present offense indicated it was not merely
a crime but a gang-related crime or committed in a way that made it
distinctively a signature crime committed
by a gang, and/or by the Rolling 30’s gang.
(Cf. Ochoa,
We note there are numerous
cases in which one or more persons first knocked at the front door of a
residence and, having heard no answer, went to the backyard and burglarized the
residence from a back door or window, with no indication the crime was
gang-related. (In re Baby Girl M.
(2006) 135 Cal.App.4th 1528, 1533; People v. Farley (1996)
45 Cal.App.4th 1697, 1701-1703 [screened window]; In re Shawn D.
(1993) 20 Cal.App.4th 200, 203, 207 [same]; People v. Aguilar
(1989) 214 Cal.App.3d 1434, 1435; People v. Muldrow (1988) 202
Cal.App.3d 636, 640; People v. Statler (1985) 174 Cal.App.3d 46,
49-50; see People v. Prince (2007) 40 Cal.4th 1179, 1196, 1202, 1257.)
Moon’s unsubstantiated
testimony appellant committed the present offense “for the benefit of†a
criminal street gang, considered alone or with the rest of the evidence in this
case, did not provide substantial evidence on that issue. Moreover,
based on the above analysis, we also conclude there was insufficient
evidence appellant committed the present offense “at the direction of, or in
association with any criminal street gang†within the meaning of former Penal
Code section 186.22, subdivision (b)(1).
The true finding as to the gang
enhancement allegation was not supported by substantial evidence. (Cf. Ochoa,
supra, 179 Cal.App.4th at
pp. 656-665.) In light of
the above, we will remand the matter for resentencing absent the gang
enhancement. (Cf. People v. Ramon (2009) 175 Cal.App.4th
843, 858.) We express no opinion as to
what, following remand, appellant’s sentence or any component thereof should
be.
3. No
Prejudicial Prosecutorial Misconduct Occurred.
The court, during its final
charge to the jury, gave CALCRIM No. 1700, which stated, inter alia, “Under the
law of burglary, a person enters a building if some part of his
or her body or some object under his or her control penetrates the area inside
the building’s outer boundary. [¶] A building’s outer boundary includes the area inside a window screen.†There is no dispute as to the validity of
that instruction.
The
prosecutor subsequently commented without objection, “Once they pried that
window screen off the window, they had
entered that space. That is a
completed burglary[.]†(Italics
added.) The prosecutor later commented
without objection, “Once they pried that window screen off the window, that was
a completed burglary.†During closing
argument, the prosecutor urged without objection, “it was a completed crime once
they had the screen off.â€
Appellant
claims the prosecutor’s above comments misstated burglary law because
penetration into the area behind the screen, and not merely removal of the
screen, is a completed burglary.
However, appellant waived the issue by failing to object to the
prosecutor’s comments and by failing to request a jury admonition, which would
have cured any harm. (Cf. People v. Gionis
(1995) 9 Cal.4th 1196, 1215.)
Moreover, the court, using
CALCRIM No. 1700, instructed on the law of burglary. The court also gave the jury CALCRIM No. 200,
which told them the court would instruct on the law that applied in this case,
they must follow the law as the court explained it to them, and if they
believed the attorney’s comments on the law conflicted with the court’s
instructions, the jury must follow the court’s instructions. We
presume the jury followed these instructions.
(People v. Sanchez (2001) 26
Cal.4th 834, 852.) No prejudicial
prosecutorial misconduct occurred.
Appellant also claims the
prosecutor committed misconduct during opening and closing arguments by (1)
commenting Hoover was a Rolling 30’s member or trying to become one, (2)
commenting appellant, a senior gang member, was with Hoover, a junior gang
member, to teach Hoover how to commit residential burglaries, and (3) commenting
on matters outside the record. Appellant
refers to about nine instances of misconduct.
We have reviewed each
alleged instance of misconduct in the record.
As to each, appellant waived any issue of prosecutorial misconduct by
failing to object on that ground (People v. Coddington (2000) 23 Cal.4th 529, 614) and
failing to request a jury admonition (People
v. Mincey (1992) 2 Cal.4th 408, 471; Evid. Code, § 353) which would have cured any
harm. Moreover, the jury heard the
evidence. The court, using CALCRIM No.
200, instructed the jury they were to decide what the facts were based solely
on the evidence and, using CALCRIM No. 222, instructed the jury that nothing
attorneys said was evidence and their remarks during closing arguments were not
evidence. We presume the jury followed
those instructions. Appellant has failed
to demonstrate how his claim affects his burglary conviction; he elsewhere has
challenged only the sufficiency of the evidence he “enter[ed]†Zanias’s house,
and we already have resolved that issue.
To the extent appellant’s claim relates to the gang enhancement, we will
vacate its true finding for the reasons previously discussed. No prejudicial prosecutorial misconduct
occurred.
The judgment is affirmed, except
appellant’s sentence is vacated, the true finding as to the former Penal Code
section 186.22, subdivision (b)(1) allegation is reversed, and the matter is
remanded for resentencing consistent with this opinion. The trial court is directed to forward to the
Department of Corrections an amended
abstract of judgment following resentencing.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN,
P. J.
CROSKEY, J.
name="_ftn1" title="">[1] Hoover
is not a party to this appeal.
name="_ftn2" title="">[2] Penal
Code section 459, states, in relevant part, “Every person who enters any house,
room, . . . or other building, . . . with intent to commit grand or petit
larceny or any felony is guilty of burglary.â€
