P. v. Lobretto

Filed 6/23/06 P. v. Lobretto CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.

David R. Mugridge for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Timothy Alan Lobretto was convicted of numerous crimes arising from two incidents at a motorcycle club. In addition, the jury found that he committed all of the felony crimes for the benefit of a criminal street gang, the Hell's Angels. He raises numerous issues focused primarily on two areas: the gang enhancements and the competency of his trial counsel. We affirm.

PROCEDURAL SUMMARY

Defendant and several others were charged by information with 15 counts arising from two incidents in March of 2001. In addition, it was alleged that the crimes were committed for the benefit of a criminal street gang. Defendant's trial was severed from the other defendants.

A series of attorneys represented defendant. Some of the counsel substitutions were based on defendant's requests to retain new counsel. One of his attorneys, a retained counsel, was removed from this case after he suffered a self-inflicted gunshot wound shortly before trial was to begin. The matter was continued for some time waiting for defense counsel to regain emotional stability. The trial court eventually appointed James Oliver to represent defendant. Oliver had represented defendant early on in the proceedings. Days before trial, defendant sought to substitute newly retained counsel in the place of Oliver. The court denied the motion. Trial began on October 5, 2004.

The jury found defendant guilty of two counts of misdemeanor false imprisonment, four counts of second degree robbery, one count of second degree burglary, one count of assault by means of force likely to produce great bodily injury with a great bodily injury enhancement, one count of simple misdemeanor assault, and three counts of false imprisonment. As to all the felony counts it was found that defendant committed the crimes for the benefit of a criminal street gang. Defendant was found not guilty of three counts of dissuading a witness.

Defendant was sentenced to prison for an aggregate term of 23 years and eight months. The gang enhancements (including one 10-year term) amounted to 15 years and four months of the total term.

FACTS

A. Background and Facts Relating to the Crimes

Defendant was an avid motorcycle enthusiast. In December of 1998, defendant approached others about forming an organized club. Defendant and others met at defendant's house and five of them agreed to form a new club, the Exiled Motorcycle Club (Exiled).

The members consisted of defendant, Paul Goonan, Richard Whitlock, Frank McDaniel, and Wes Seruntine. They designed a patch for the club using shades of orange and gray to align themselves with the red and white colors of the Hell's Angels Motorcycle Club (Hell's Angels). They designated the following March 15 as the birth date of their club, March 15 also being the celebrated birth date of the Hell's Angels.

Exiled held weekly meetings and collected dues. The group found a clubhouse location and fixed it up. Some members brought personal property to the club. When property was brought to the club, the individual would let the members know if the property was to remain personal property or was to become club property. Donated property was treated as club property, while lent property remained the personal property of the lender. Some property was purchased with club dues, for example the security system. Members always had the opportunity to come back and reclaim their personal property from the clubhouse. Andy Randazzo, Mark Craver, and others became members of the club. The members of the club wanted to be looked upon as a decent motorcycle club and did not want to get involved in illegal activities.

Exiled associated with Scream City Motorcycle Club in Fresno. Scream City eventually became the Fresno County chapter of Hell's Angels. Exiled members wore patches to indicate their affiliation and support for the Fresno Hell's Angels. Exiled was mentored by the Fresno Hell's Angels and received information to train them and align them with the established ways of the Hell's Angels. Exiled members would assist at Hell's Angels functions doing â€