P.v. Evans
Filed 6/21/13 P.v. Evans CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
>
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ROBERT EVANS, Defendant and Appellant. | E056152 (Super.Ct.No. SWF1100070) OPINION |
APPEAL
from the Superior Court
of
County. Kelly L.
Hansen, Judge. Affirmed in part;
reversed in part.
Stephen
M. Lathrop, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury found defendant and appellant
Daniel Robert Evans guilty of attempted premeditated murder (Pen. Code, §§
664/187, subd. (a), count 1),
name="_ftnref1" title="">[1] and active participation in a criminal street
gang (§ 186.22, subd. (a), count 2). The
jury also found true that defendant personally and intentionally discharged a
firearm that proximately caused great bodily injury. (§ 12022.53, subd. (d).)
indeterminate term of 32 years to life in state prison with credit for time
served as follows: seven years to life
on count 1, plus a consecutive term of 25 years to life for the gun enhancement,
and a stayed midterm of two years on count 2.
Defendant’s
sole contention on appeal is that there is insufficient evidence to support his
conviction on count 2. In light of the
recent decision by the California Supreme Court in People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), we will reverse the conviction on count 2.
I
FACTUAL
BACKGROUND
On
January 9, 2011, Aaron
Williams went to a Carl’s Jr. restaurant in San Jacinto
with his uncle Robert Moreno, who has Down syndrome, and his parents. While Williams’ parents waited in the car,
Williams and Moreno went inside the
restaurant to order food. Subsequently,
defendant entered the restaurant with his girlfriend, sister, and young nephew.
While
Moreno was ordering his food,
defendant and the two women began giggling.
One of the women began yelling, trying to rush Moreno
to order faster. Williams became upset
and told them to wait their turn as Moreno
suffered from Down syndrome. One of the
women yelled at defendant “to do something.â€
Williams and defendant thereafter got into a confrontation, with
defendant saying, “It seems like you have a death wish. Step outside, and I will grant it to
you.†The two women kept telling
defendant to do something. Defendant
then left the restaurant. Shortly
thereafter Williams left too to ask his parents whether they wanted to order
food.
As
Williams was exiting the restaurant, one of the women started yelling and
cursing at Williams, and telling defendant to do something. Defendant, who was standing next to a car
parked next to Williams’ car, pointed a gun at Williams and fired once,
shooting Williams’ in the side of his cheek.
Williams fell to the ground, and defendant fled the scene.
Williams
is Hispanic. He had never been in a gang
and was unarmed.
A
gang expert testified that defendant was an active member of the L-Squad gang,
primarily a Black, male-dominated gang with about 35 members located in the San
Jacinto area. The L-Squad
gang is rivals with Hispanic San Jacinto gangs, primarily the San
Jacinto Street gang. The Carl’s Jr. restaurant where the shooting
occurred was located in L-Squad territory.
The primary activities of the gang include theft, burglary, assault, and
murder. The gang members display the
letter “L†to identify themselves.
L-Squad
gang members Davon Jones and Arthur Hoskins were convicted of burglary in 2009,
Johnnie Grant of attempted murder in 2009, and Cody Walsh of murder in
2010. Defendant denied being a gang
member but claimed that he did not get along with Hispanics from San
Jacinto. In addition,
defendant maintained communication with L-Squad gang members while awaiting
trial in this case.
The
gang expert opined that defendant is an active member of the L-Squad gang based
on defendant’s tattoos, people he associated with, his repeated contacts with
other active gang members, and his commission of the crime in this case. The gang expert also concluded that the
offense was committed for the benefit of the L-Squad gang, because the shooting
“bolsters the L-Squad criminal street
gangs through using fear and intimidation and showing that they actually do
use violence.â€
There
was no evidence that defendant acted with others in committing the crime in
this case.
II
DISCUSSION
Defendant
contends there was insufficient evidence to support his conviction of active
participation in a criminal street gang (§ 186.22, subd. (a), count 2), because
there was no evidence that he committed the offense with gang members or that
he willfully promoted, furthered, or assisted in felonious
in which he actively participated. In
light of the Supreme Court’s decision in Rodriguez,
supra, 55 Cal.4th 1125, the People
agree that defendant’s conviction on count 2 should be reversed. We also agree.
Former
section 186.22, subdivision (a), imposes punishment for “[a]ny person who
actively participates in any criminal street gang with knowledge that its
members engage in or have engaged in a pattern of criminal gang activity, and
who willfully promotes, furthers, or assists in any felonious criminal conduct
by members of that gang, . . .â€
The elements of the offense are:
“(1) active participation in a criminal street gang, in the sense of
participation that is more than nominal or passive; (2) knowledge that the
gang’s members engage in or have engaged in a pattern of criminal gang
activity; and (3) the willful promotion, furtherance, or assistance in any
felonious criminal conduct by members of that gang.†(People
v. Albillar (2010) 51 Cal.4th 47, 56.)
Appellate
courts were divided as to whether a gang member, acting alone, could be found
to have willfully promoted, furthered or assisted in felonious conduct of members
of the gang of which he or she was a member.
(Rodriguez,
our Supreme Court held that a conviction for active participation in a criminal
street gang required proof that the defendant acted with at least one other
gang member in committing the underlying offense. (Id.
at pp. 1128, 1129-1139.) The court
held that “section 186.22[, subdivision ](a) reflects the Legislature’s
carefully structured endeavor to punish active [gang] participants for
commission of criminal acts done collectively
with gang members.†(
section 186.22, subdivision (a).
Defendant
correctly points out that there is no evidence that he acted with other L-Squad
gang members in committing the crime in this case. The evidence adduced at trial shows that
defendant was accompanied by his sister, girlfriend, and young nephew. There was no evidence that these women were
members of the L-Squad gang or that reference to the gang was made during the
altercation. The evidence showed that
defendant acted entirely alone, unassisted by any gang members and outside the
presence of any gang members. Because
defendant acted alone in shooting Williams, his conviction for active gang participation
must be reversed for insufficient evidence as a
III
DISPOSITION
Defendant’s
conviction on count 2 for active participation in a criminal street gang
(§ 186.22, subd. (a)) is reversed.
The trial court is directed to modify defendant’s sentence accordingly
and deliver a certified copy of an amended minute order and amended abstract of
judgment, each reflecting the modification of the sentence, to the
affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All future statutory references are to the Penal
Code unless otherwise stated.
name="_ftn2" title=""> [2] The jury found the criminal street gang
enhancement (§ 186.22, subd. (b)) attached to count 1 not true.
