P.v . Garcia

Filed 12/31/08 P.v . Garcia CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Following entry of a no contest plea by defendant to evading a police officer (Veh. Code, 2800.2, subd. (a)) and misdemeanor unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a)), the trial court suspended imposition of sentence and placed defendant on probation for three years, upon the condition, among others, that he register as a gang member pursuant to Penal Code section 186.30.[1] In this appeal defendant claims that the evidence fails to support the imposition of a gang registration condition of his probation. We conclude that the gang registration order is supported by substantial evidence, and affirm the judgment.

Statement of Facts[2]

On April 13, 2008, officers of the Fairfield Police Department attempted to detain a 1994 Acura Integra driven by defendant, for expired registration tags. Defendant failed to yield to overhead lights and siren, and instead began accelerating to speeds between 80-100 MPH. Defendant nearly caused several collisions while weaving through traffic before he struck the curb as he left the freeway and was involved in a solo vehicle accident. Defendant and his co-defendant [Francisco] Carilla then exited the Acura and attempted to flee on foot until they were arrested at gunpoint by one of the officers.

Upon a search of the vehicle officers discovered a replica Glock pellet or BB gun on the left side of the drivers seat. A search of defendant resulted in seizure of a shaved key similar to ones used to start vehicles, a glass smoking pipe, and two small pocket knives. During questioning, defendant told the officers that he found [the] key on the street next to the Acura, and when he tried the key on that vehicle, it started the vehicle. He further stated that he did not stop when the police attempted to detain him because the vehicle was not his and he was scared. Defendant acknowledged that he did not know the owner of the vehicle.

Defendant admitted to the officers that he is a member of the Richmond Sureo Trece criminal street gang, which is a street gang out of the Richmond and El Sobrante area. He added that he was not jumped into the gang, and did not have a street name or moniker. Carilla stated, however, that he was a member of the same gang, and believed defendants street name to be Ghost.  Defendant was classified as a Sureo gang member by jail classification. According to the probation report, defendant did not cooperate with or participate in the pre-sentence interview with probation, and declined to make a statement in regards to his gang involvement.

Discussion

Defendant argues that the evidence fails to support the imposition of a gang registration requirement upon him pursuant to section 186.30. He focuses upon two essential elements of section 186.30, which he claims were not established by the evidence: first, that the Richmond Sureos Trece group meets the requirements of a criminal street gang as defined in section 186.22, subdivisions (e) and (f); and second, that the offenses were committed for the benefit of or at the direction of or in association with a criminal street gang  within the meaning of the statute.

Section 186.30 specifies three statutory conditions, any one of which will support a gang registration order: a conviction of participating in a criminal street gang in violation of section 186.22, subdivision (a); a finding of a gang enhancement pursuant to section 186.22, subdivision (b); or commission of a crime that the court finds is gang related.[3] (People v. Sanchez (2003) 105 Cal.App.4th 1240, 1242.) Registration does not entail exercise of discretion by the trial court, but instead is mandatory if any of three specified prerequisites are found to exist. (Ibid.; In re Eduardo C. (2001) 90 Cal.App.4th 937, 943; People v. Monroe (1985) 168 Cal.App.3d 1205, 1209.) Defendant was neither convicted of a violation of section 186.22, nor admitted a section 186.22 enhancement. The only remaining basis for the registration order is a gang related crime, which defendant maintains is not established in the record.

The gang related provision of section 186.30 was interpreted by this court to mean that a crime may not be found gang related within the meaning of section 186.30 based solely upon the defendants criminal history and gang affiliations. The crime itself must have some connection with the activities of a gang, which we conclude means a criminal street gang as defined elsewhere in Proposition 21, section 186.22, subdivisions (e) and (f). (People v. Martinez (2004) 116 Cal.App.4th 753, 761.) [A] crime is gang related in this context when it was committed, in the words of subdivision (b)(1) of section 186.22,  for the benefit of, at the direction of, or in association with a street gang. [Citations.] (Id. at pp. 761-762, fns. omitted.)

We further concluded that a defendants personal affiliations and criminal record are relevant in finding a gang related crime within the meaning of section 186.30. . . . [A] defendants history of participation in gang activities or criminal offenses may prove that a crime not otherwise or intrinsically gang related nevertheless falls within the meaning of section 186.30. Thus, a crime committed by a defendant in association with other gang members or demonstrated to promote gang objectives may be gang related.However, the record must provide some evidentiary support, other than merely the defendants 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, supra, 116 Cal.App.4th 753, 762.)

The fact that the subject crime was gang related need be proved only by a preponderance of the evidence. (In re Jorge G. (2004) 117 Cal.App.4th 931, 944.) Where, as here, the defendant has asserted that  there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidencethat is, evidence that is reasonable, credible, and of solid valuefrom which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. [Citation] (Id. at pp. 941-942.)

I. The Evidence That Defendant Was a Member of a Criminal Street Gang.

Defendant claims that the evidence does not prove the Richmond Sureos Trece meets the requirements of section 186.22, subdivisions (e) and (f), so as to be defined as a criminal street gang for purposes of section 186.30. (People v. Martinez, supra, 116 Cal.App.4th at p. 761.) To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the groups primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the groups members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.] (People v. Bragg (2008) 161 Cal.App.4th 1385, 1399-1400; see also People v. Ortega (2006) 145 Cal.App.4th 1344, 1355; In re Jorge G., supra, 117 Cal.App.4th at p. 944.)

Here, in light of defendants plea and the fact the prosecution was not seeking to prove a section 186.22 enhancement, the probation report does not delineate the evidence necessary to satisfy all of the quite specific elements of section 186.22, subdivisions (e) and (f). Rather, the report offers the conclusionary and definitive statement, based upon defendants admission to the police, that he is a member of the Richmond Sureos Trece, which is a criminal street gang. Defendants companion, Francisco Carilla, corroborated that defendant is a member of the Sureos, with the street name Ghost, and defendant was classified as a Sureo gang member at the county jail.

For several reasons, we find that the record adequately establishes the Richmond Sureos Trece as a criminal street gang, despite the lack of evidence of the specific essential elements of section 186.22, subdivisions (e) and (f). First, defendants failure to challenge the evidence in the trial court constitutes a forfeiture of the issue on appeal. Defendant had notice of the recommendation of imposition of a gang registration condition in the probation report, but failed to object to it at the sentencing hearing or claim that the evidence failed to prove that the Sureos is a criminal street gang. Claims of error relating to sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner are waived on appeal if not first raised in the trial court. [Citation.] (People v. Brach (2002) 95 Cal.App.4th 571, 577; see also People v. Breazell (2002) 104 Cal.App.4th 298, 304-305.) According to a fundamental principle of appellate procedure, with certain exceptions, an appellate court will not consider claims of error that could have beenbut were notraised in the trial court. (People v. Vera (1997) 15 Cal.4th 269, 275.) The forfeiture doctrine seeks to   encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided . . . .  [Citation.] (People v. Peel (1993) 17 Cal.App.4th 594, 600.)   No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citation.] [Citation.] (People v. Saunders (1993) 5 Cal.4th 580, 590; see also People v. Rudd (1998) 63 Cal.App.4th 620, 629.)

While failure to object does not prevent correction or vacation of an unauthorized sentence on appeal (In re Birdwell (1996) 50 Cal.App.4th 926, 931), defendant has not asserted that the registration requirement was imposed in excess of the courts jurisdiction or may not lawfully be imposed under any circumstance in the particular case, only that the evidence in the record before us fails to support it.[4] Defendant had ample opportunity to challenge the contents of the probation report or dispute the validity of the gang registration condition, but did not do so. That he failed to offer an objection to the lack of evidence of a gang related crime deprived the prosecution of the chanceto adduce additional evidentiary support for the gang registration condition. Therefore, the claim of lack of further evidentiary support for the gang registration condition is forfeited for lack of an objection. (See People v. Lucas (1995) 12 Cal.4th 415, 495; People v. Welch (1993) 5 Cal.4th 228, 236; People v. Dancer (1996) 45 Cal.App.4th 1677, 1693, overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123; People v. Douglas (1995) 36 Cal.App.4th 1681, 1691.)

In addition, the probation report contains an authoritative proclamation, even if in the form of a conclusion, that the Richmond Sureos Trece is a criminal street gang. The trial court was entitled to rely on the probation officers statement, derived from the police report, that the Richmond Sureos Trece has the status of a criminal street gang. (See People v. Miller (1994) 25 Cal.App.4th 913, 918.) The scope of information a sentencing court may consider is very broad. (People v. Whitten (1994) 22 Cal.App.4th 1761, 1766; People v. Stanley (1984) 161 Cal.App.3d 144, 150.)    [S]entencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes. [Citation.] [Citation.]  (People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) Due process does not require that a criminal defendant be afforded the same evidentiary protections at sentencing proceedings as exist at trial. [Citations.] . . . Fundamental fairness, however, requires that there be a substantial basis for believing the information is reliable. (People v. Lamb (1999) 76 Cal.App.4th 664, 683; see also People v. Eckley (2004) 123 Cal.App.4th 1072, 1080.) The statement in the probation report that defendant is a member of a criminal street gang had a reliable basis and was not demonstrated to be faulty. (See People v. Tang (1997) 54 Cal.App.4th 669, 680.) If defendant wanted to assert that his classification as a criminal street gang member was unfair or untrue, it was incumbent upon him to come forward with contrary information to refute the contents of the probation report. (See People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406; People v. Goodner (1992) 7 Cal.App.4th 1324, 1329.) Absent any challenge by the defense to the proclamation in the report that the Richmond Sureos Trece is a criminal street gang, we accept the evidence as accurate. (See People v. Keichler (2005) 129 Cal.App.4th 1039, 1048; People v. Pinedo, supra, at pp. 1406-1407.) And finally, we observe that the Sureosalthough not specifically the Richmond Sureos Trecehas often been recognized as a criminal street gang. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1074; In re I.M. (2005) 125 Cal.App.4th 1195, 1210.) The finding that the Richmond Sureos Trece is a criminal street gang is based upon substantial evidence.

II. Evidence That the Offenses Were Gang Related.

We turn to an examination of the evidence to support the essential element of section 186.30 that the offenses were gang related. A crime is gang related only if it was committed  for the benefit of, at the direction of, or in association with a street gang,   and the defendants affiliation with the Sureos alone does not suffice to prove that the commission of the offense was related to criminal conduct by gang members. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199; People v. Martinez, supra, 116 Cal.App.4th at pp. 761-762.) We must find substantial evidence that the crime itself had some connection with the activities of a gang. (Ibid.)

The record before us provides evidence beyond merely a recitation of defendants gang membership or affiliation. (Cf. People v. Martinez, supra, 116 Cal.App.4th at p. 762; In re Eduardo C., supra, 90 Cal.App.4th at pp. 941-943.) Carjacking (Veh. Code,  10851, subd. (a)) was created as a crime by the Legislature in 1993 expressly because it is often committed as a thrill-seeking theft by gang members, and is thus difficult to prove as a robbery offense. (People v. Lopez (2003) 31 Cal.4th 1051, 1057, quoting from Assem. Com. on Pub. Safety, Analysis of Sen. Bill No. 60 (1993-1994 Reg. Sess.) July 13, 1993, p. 1.) Even more significant is the uncontradicted evidence in the record that defendant committed the offenses with a fellow identified Richmond Sureos Trece gang member. Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. [Citation.] (People v. Villalobos (2006) 145 Cal.App.4th 310, 322; see also People v. Morales (2003) 112 Cal.App.4th 1176, 1198-1199.) Defendant was also found in possession of a shaved key for starting vehicles, a glass smoking pipe, two small pocket knives, and a pellet or BB gun. The trial court was justified in drawing the inference that weapons and instruments for unlawfully taking vehicles or smoking controlled substances are frequently possessed by gang members. (See People v. Salcido (2007) 149 Cal.App.4th 356, 361.) Therefore, substantial evidence also establishes that

the offenses were gang related. The trial court did not err by imposing the gang registration order.

Accordingly, the judgment is affirmed.

_________________________

FLINN, J.*

We concur:

_________________________

MARCHIANO, P. J.

_________________________

MARGULIES, J.

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[1] All further statutory references are to Penal Code unless otherwise indicated.

[2] In light of defendants plea, our recitation of the facts pertinent to the underlying offenses is taken from the probation report, which in turn was derived from the police report of the incident.

[3] Section 186.30 reads:

(a) Any person described in subdivision (b) shall register with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first.

(b) Subdivision (a) shall apply to any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state for any of the following offenses:

(1) Subdivision (a) of Section 186.22.

(2) Any crime where the enhancement specified in subdivision (b) of Section 186.22 is found to be true.

(3) Any crime that the court finds is gang related at the time of sentencing or disposition. (Italics added.)

[4] An unauthorized sentence is a narrow exception to the requirement that the parties raise their claims in the trial court to preserve the issue for appeal. (People v. Breazell, supra, 104 Cal.App.4th at p. 304.) [A] sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is clear and correctable independent of any factual issues presented by the record at sentencing. (People v. Scott (1994) 9 Cal.4th 331, 354; see also People v. Breazell, supra, at p. 304; People v. McGee (1993) 15 Cal.App.4th 107, 117.) Claims involving unauthorized sentences or sentences entered in excess of jurisdiction can be raised at any time. (People v. Andrade (2002) 100 Cal.App.4th 351, 354; see also People v. Turner (2002) 96 Cal.App.4th 1409, 1415.)

* Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.