Ram
Filed 7/3/12
P.v. Ram CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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8.1115(a), prohibits courts and parties from citing or relying on opinions not
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANK RICHARD
RAM, JR.,
Defendant and Appellant.
D060322
(Super. Ct. No.
RIF149166)
APPEAL
from a judgment of the Superior Court of
County, Richard J. Hanscom, Ret. Judge, sitting on
assignment. Affirmed as modified.
On
August 19, 2010, a jury convicted Frank Richard Ram, Jr., of robbery in the
211 (count 1), assault with a deadly weapon in violation of section 245,
subdivision (a)(1) (count 2) and active participation in a criminal street gang
in violation of section 186.22, subdivision (a)(1) (count 3). The jury further found Ram committed the
first two offenses for the benefit of, or at the direction of, or in
association with a criminal street gang
with the specific intent to promote, or further or assist in criminal conduct
by gang members within the meaning of section 186.22, subdivision (b)(1).
On
October 12,
2010, the trial court sentenced Ram to a
total of 12 years in state prison.
Specifically, the court sentenced Ram to two years for the robbery and
10 years for the gang enhancement, two years for the assault and 10 years for
the gang enhancement and two years for the gang
participation conviction. The trial
court further ordered that the sentences for the assault and gang participation
convictions run concurrently with the 12-year sentence imposed on the robbery
count.
Ram
now appeals, claiming: (1) that there
was insufficient evidence to support the jury's finding he committed the
offenses for the benefit of a gang within the meaning of section 186.22,
subdivision (b); (2) that the court erred by failing to preclude a witness's
testimony under section 1054.1; (3) that Ram's concurrent sentence for
participating in a criminal street gang (count 3) should have been stayed under
section 654; and (4) that Ram's concurrent sentence for assault with a deadly
weapon (count 2) should have also been stayed under section 654.
As
we explain, with the exception of the sentence imposed for gang participation,
we find no error. We modify the judgment
to correct the sentencing error and affirm the judgment as modified.
FACTUAL BACKGROUND
name="_ftnref2" title="">[2]
Ram
and Thomas Ramirez, two self-admitted Eastside Riva gang members, were at
Ramirez's house on February 23, 2009. That day, Alfred Arenas and a female
companion went to Ramirez's house to pick up some money Ramirez owed him. Arenas found Ramirez in the front yard and
Ramirez appeared to be agitated. Ramirez
apparently believed Arenas was being disrespectful by coming to his house,
asking for money and bringing a woman; evidently, Ramirez's wife was extremely
jealous. Ramirez went inside his house
and came back out with Ram. Once back
outside, Ramirez struck Arenas in the face, causing Arenas to fall to his
knees. Ramirez and Ram then both punched
and kicked Arenas in the face, ribs and upper torso for two to three
minutes. Shortly after the beating
began, Courtney Miller, a third party who was driving by, saw the assault.
After
the barrage of punching and kicking stopped, one of the men reached into
Arenas's back pocket, took out Arena's wallet, withdrew all the money in the
wallet threw the wallet back at Arenas. Arenas later found his cell phone had
been taken as well.
Once
he was able to collect himself, Arenas fled to his truck and drove to a police
station. Arenas filed a police report in
which he described the assault and robbery; Arenas then went to the
hospital. Both Ram and Ramirez were
arrested shortly thereafter.
Sometime
after Ram and Ramirez were arrested, two men approached Arenas, put a gun to
his head and forced him into his truck.
The two men asked Arenas why he "snitched on the homies" and
began wondering out loud what they should do with him. After some time had passed, one of the men
told Arenas to go to the district attorney and have the charges dropped. Arenas assured the two kidnappers he had
already done so.
The
two men then dropped Arenas off at a friend's house and told Arenas to wait
there while they spoke with "higher up" gang members about what they
should do with Arenas. Once he was not
being watched, Arenas fled the house and contacted Detective Kevin
Townsend. Shortly thereafter, the two
men who had kidnapped Arenas, also members of the Eastside Riva gang, were
arrested. They later pled guilty to the
kidnapping.
At
trial, Detective Townsend testified as a gang expert about gang activity in the
city of Riverside. Townsend stated the
Eastside Riva was one of the largest and most violent criminal street gangs in Riverside with
approximately 500 members. Townsend
further testified the Eastside Riva gang commits the crimes listed in section
186.22, subdivision (e), specifically:
drug sales, burglaries, auto theft, robberies, witness intimidation,
possession of firearms and crimes of violence, including murders and
stabbings. Townsend also stated that the
location of the assault on Arenas was within Eastside Riva gang territory.
Additionally,
Townsend testified street gangs demand loyalty and respect. He stated that the notion of respect is
important to Eastside Riva gang members and is often earned by committing
violent crimes in broad daylight for others to see. These violent crimes work to deter the
community from calling the police, coming to court, testifying and thereby
allow the gang to operate freely and unhindered. Townsend explained Ram and Ramirez were both
self-admitted members of the Eastside Riva gang and both had extensive gang
tattoos all over their bodies.
DISCUSSION
I
Supports the Jury's Finding
for the Benefit of the Gang
Ram
first argues there was insufficient
evidence to support the jury's finding he committed the assault and robbery
for the benefit of the Eastside Riva gang within the meaning of section 186.22, subdivision (b). Our review of the record discloses ample
evidence the beating and robbery of Arenas were for the benefit of the gang.
In
the absence of any prejudicial error, we must affirm a jury verdict supported
by substantial evidence. (
576.) Substantial evidence is evidence
of legal significance, reasonable in nature, credible and of solid value. (People
v. Samuel (1981) 29 Cal.3d 489, 505.)
We must review the entire record in the light most favorable to the
verdict and presume the existence of every fact which supports the verdict and
which the trier could reasonably deduce from the evidence. If the evidence permits a reasonable trier of
fact to conclude a charged crime was committed or an enhancement was proven,
the opinion of a reviewing court that the circumstances may also be reconciled
with a contrary finding will not warrant reversal. (See
Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [99 S.Ct. 2781].)
Section
186.22, subdivision (b)(1) provides a sentence enhancement for a person
convicted of a felony that was "committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang
members." The California Supreme
Court in People v. Albillar (2010) 51
Cal.4th 47, made it clear the statute only requires a showing of intent to
assist another gang member in a criminal activity and that a gang expert's
testimony is sufficient to establish such an intent. (Id.
at pp. 60-61.)
Here,
the prosecution's gang expert, Detective Townsend, had well-established
experience and expertise with respect to the Eastside Riva gang. Townsend was able to positively identify the
gang's territory, tattoos and criminal behavior.
Townsend
noted the assault and robbery took place in the front yard of Ramirez's house,
located in gang territory, in broad daylight for all to witness. Townsend explained to the jury that a gang's
general criminal effectiveness is greatly enhanced by the intolerance of its
members for any type of disrespect of its members. According to Townsend, retaliation for an
affront is not simply a matter of personal pride but an effective means of
discouraging interference with gang members and their present or future gang
related criminal activities. In this
regard Townsend's testimony is consistent with the views expressed by gang
experts in other gang cases. (
Cal.4th 605, 613; People v. Olguin
(1994) 31 Cal.App.4th 1355, 1367.)
Given
Townsend's testimony, it was reasonable for the jury to conclude that in the
gang context retaliation for lack of respect was not simply a matter of
personally "saving face," but was performed with the very specific
intent of regaining respect for the gang and thereby protecting the criminal
effectiveness of the gang itself. In
particular, we note Ram committed the assault and robbery in concert with
another self-admitted Eastside Riva gang member, Ramirez, while lecturing
Arenas "this is how we do it."
Even if Ram possessed the simultaneous personal motive of beating up
Arenas because Arenas disrespected Ramirez, the existence of such a
simultaneous personal motive would not defeat the gang finding. (See People
v. Ferraez (2003) 112 Cal.App.4th 925, 931.)
In
sum, we reject Ram's argument the record does not contain sufficient evidence
to support the finding of the gang enhancement.
II
Admitted
Concerning His Kidnapping
Ram
next argues the trial court should have precluded Arenas's testimony concerning
his kidnapping because the prosecution did not comply with sections 1054.1 and
1054.7. In particular, Ram argues that
because the prosecution did not provide defense counsel with a copy of the
police report concerning the kidnapping 30 days before trial, Arenas's
kidnapping testimony should have been precluded.
A. Background
Prior
to trial, the prosecution moved to admit evidence members of the Eastside Riva
gang kidnapped Arenas to discourage him from testifying. The prosecutor argued the evidence was needed
to prove the gang allegations. The trial
court denied the motion, finding the kidnapping evidence was irrelevant. However, the trial court did note that
"if something comes up that changes it, we'll discuss it."
During
the defense case-in-chief, Teresa Torrez, Ram's fiancée, testified that on many
occasions Arenas told her Ram was innocent and he was not pressing charges
against him. In response to Torrez's
testimony, the prosecution asked for permission to cross-examine Torrez about
the kidnapping and witness intimidation.
The prosecution argued this line of questioning would explain why Arenas
may have told Torrez that Ram was innocent and that Arenas was dropping the
charges. The trial court refused to
permit the prosecution to use its cross-examination of Torrez as a means of
introducing evidence about the kidnapping.
However, the trial court permitted the prosecution to call Arenas to testify
about the kidnapping because the kidnapping had become relevant as evidence of
Arenas's state of mind when he spoke to Torrez.
The
defense objected to such testimony from Arenas on the grounds it had not
received any discovery concerning the kidnapping case. In response, the prosecution produced for the
defense the police report on the kidnapping.
Notwithstanding receipt of the police report, the defense counsel
renewed his objection, arguing he did not have enough time to review the
30-page police report which discussed witnesses, recordings of jail calls and a
911 tape. Defense counsel asked that the
trial be continued so that counsel could thoroughly review the police
report. The trial court provided defense
counsel with one hour to review the police report and prepare for cross-examination
of Arenas and denied the motion to continue the trial. The trial court noted that the kidnappers had
pled guilty, that the jail calls were irrelevant to Arenas's state of mind and
his testimony would not be a retrial of the kidnapping case.
Arenas
then testified about the kidnapping and, both on direct examination and when
cross-examined, denied he ever told Torrez Ram was innocent. After Arenas testified, the trial court
instructed the jury the kidnapping was "not to be in any way attributed to
the defendant and may not be considered against him. It is only received into evidence to show
it's [sic] effect, if any, on what Mr. Arenas may or may not have said to Mrs.
Torrez in 2009."
B. Legal
Principles
Section
1054.1, subdivision (f), requires the prosecution to disclose "[
written or recorded statements of witnesses or reports of the statements of
witnesses whom the prosecution intends to call at the trial." (Italics added.) Section 1054.7 provides in pertinent part
that the disclosures required by section 1054.1 "shall be made at least 30
days prior to the trial, unless good cause is shown why a disclosure should be
denied, restricted, or deferred.
known to, or comes into the possession of, a party with 30 days of trial,
disclosure shall be made immediately . . . ." (Italics added.)
Section
1054.5, subdivision (b) provides the trial court may enforce the disclosure
requirements of section 1054.1 by ordering immediate disclosure, "contempt
proceedings, delaying or prohibiting the testimony of a witness, or the
presentation or real evidence, continuance of the matter, or any other lawful
order." However, "the court
may prohibit the testimony of a witness pursuant to subsection (b) only if all
other sanctions have been exhausted."
(§ 1054.5, subd. (c).)
Before imposing any exclusion of testimony or evidence as a means of
preventing prejudice to a defendant, a trial court must carefully weigh the
cost to the truth-finding process of excluding otherwise relevant and probative
evidence. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1747.) Consequently, exclusion is warranted as a
remedy only when the prejudice caused by a failure to disclose is substantial
and irremediable. (Ibid.) We review the trial
court's decision regarding enforcement of the discovery required by section
1054.1 for abuse of discretion. (
1197, 1203; People v. Wimberly (1992)
5 Cal.App.4th 773, 792.)
C. Analysis
The
first difficulty we have with Ram's discovery argument is his contention that a
violation of section 1054.1 occurred.
Under section 1054.1, the prosecution was only required to produce
relevant reports and statements. As we
have discussed, the information in the kidnapping police report did not
stand and testified about Arenas's statements to her. Thus, under a reasonable interpretation of
sections 1054.1 and 1054.3, the prosecution here had no prior duty to disclose
the police report, and its immediate production of the police report following
the trial court's order permitting Arenas to testify about the kidnapping
fulfilled its obligations under the statutes.
Moreover,
even if earlier disclosure of the police report was required, the trial court
fully vindicated Ram's rights under the discovery statute by providing his
counsel additional time to prepare for Arenas's cross-examination. As the trial court noted, the defendants in
the kidnapping case pled guilty and culpability for the kidnapping was not an
issue in Ram's trial. Thus it was not
likely the police reports were going to produce any significant impeachment
with respect to what was an entirely collateral issue. In this context, Ram cannot show that, even
if a violation of section 1054.1 occurred, the midtrial production of the
police report, with an hour's opportunity to review it and prepare for
cross-examination, created the substantial and irremediable prejudice which
would warrant exclusion of Arenas's testimony.
D.
The Trial Court Erred in Imposing
Sentences For Both The Robbery and Gang Count Convictions
Ram next
argues the trial court should have stayed sentencing on his gang participation
conviction under section 654.
name="_ftnref3" title="">[3] The question of whether a defendant may be
sentenced both for gang participation under section 186.22, subdivision (a) and
for the substantive crime which serves as the predicate to a gang participation
conviction was recently resolved by our Supreme Court in People v. Mesa (June 4, 2012 S185688) ___ Cal.4th ___ [2012 WL
1970864] Mesa).
In
Mesa the Supreme Court found that
when in a single proceeding a defendant is convicted of a substantive offense
and the substantive offense is the predicate to a gang participation conviction
under section 186.22, subdivision (a), imposition of a sentence on the offense
with the shorter potential term must be stayed under section 654. (Mesa,
supra, ___ Cal.4th at p. ___.) The
Attorney General agrees that in light of Mesa,
the sentence on Ram's gang participation conviction should have been stayed
under section 654. Accordingly, we will
modify the judgment to stay Ram's sentence on the gang participation
conviction. (See People v. Flowers (1982) 132 Cal.App.3d 584, 589.)
IV
Imposed Concurrent Sentences
Assault With A Deadly Weapon Count
Finally,
Ram argues the two-year sentence imposed for the assault under section 245,
subdivision (a)(1)(2) should also be stayed under section 654 because the trial
court imposed a concurrent sentence on the robbery count. Ram argues that because the assault was
committed for the same purpose as the robbery—to teach Arenas a lesson in
respect—the trial court was required to stay the sentence for assault.
In
Neal v. State of California (1960) 55
Cal.2d 11 (Neal), disapproved on
other grounds People v. Correa (2012)
___ Cal.4th ___ 2012 WL 7344999, the California Supreme Court outlined section
654's prohibition on multiple punishment for offenses incident to one criminal
objective, with specific reference to cases involving a robbery during which an
assault was committed: " 'Section
654 has been applied not only where there was but one "act" in the
ordinary sense . . . but also where a course of conduct violated more than one
statute and the problem was whether it comprised a divisible transaction which
could be punished under more than one statute within the meaning of section
654.' [Citation.] [¶] Whether a course of criminal conduct
is divisible and therefore gives rise to more than one act within the meaning
of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not
for more than one.
"Thus
in People v. Logan [1953] 41 Cal.2d
279, 290, the defendant, who chose to commit robbery by first knocking out his
victim with a baseball bat and then taking his valuables was convicted of both
conviction on the ground that the double punishment violated section 654. In In
re Chapman [1954] 43 Cal.2d 385, 387, however, [the Supreme Court] held
that when the assault is not a means of perpetrating the robbery but is an act
that follows after the robbery is completed the defendant is guilty of two
punishable acts." (
In
the wake of Neal, courts have
repeatedly held that "if an assault is committed as the means of perpetrating a robbery, section 654 requires the
sentence for the assault to be stayed."
(E.g, In re Jesse F. (1982) 137 Cal.App.3d 164, 171, italics
added.) In contrast, "When there is
an assault after the fruits of the
robbery have been obtained, and the assault is committed with an intent other
than to effectuate the robbery, it is separately punishable." (Ibid.)
Turning
to the record here, there is no evidence Ram's or Ramirez's initial intention
was to rob Arenas. Rather, the record
shows the conflict arose from Arenas's perceived "disrespect" of
Ramirez, who went back in the house and retrieved Ram to assist him in
assaulting Arenas. Significantly, at no
time did Ram or Ramirez threaten Arenas with assault if he did not give them
his money. Rather, Ram and Ramirez beat
Arenas for two to three minutes until Arenas was on the ground pleading for
mercy. Only after the assault was
complete did one of the assailants, as an apparent afterthought, rob Arenas. Given this course of conduct, it was reasonable
for the trial court to conclude the intent to rob was separate from the assault
and only arose after the assault was completed and the two men realized how
vulnerable Arenas had become. Because
the record supports the trial court's apparent conclusion that each crime arose
from a separate intent, section 654 did not prevent the trial court from
punishing both the assault and the robbery.
DISPOSITION
The
judgment is modified to stay the two-year sentence on Ram's gang participation
conviction and as modified the judgment is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL,
P. J.
McDONALD,
J.
references are to the Penal Code unless otherwise indicated.
in the light most favorable to the judgment of conviction. (See People
v. Osband (1996) 13 Cal.4th 622, 690.)
Certain portions of the factual and procedural history related to Ram's
claims of alleged error are discussed post,
in connection with those issues.
