P. v. Magana




Filed 1/18/11 P. v. Magana CA2/7








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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, Plaintiff and Respondent, v. ANTONIO MAGANA, Defendant and Appellant.

B220787 (Los Angeles County Super. Ct. No. BA356402)

APPEAL from a judgment of the Superior Court of Los Angeles County,
John B. Fisher, Judge. Affirmed in part, reversed in part.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________




Antonio Magana appeals from the judgment entered after a jury convicted him of attempted second degree robbery with a true finding on a related gang enhancement. He contends the evidence was insufficient to support the gang enhancement. We strike the enhancement, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Magana was charged by amended information with one count of attempted second
degree robbery (Pen. Code, §§ 211, 664)[1] and one count of exhibiting a concealable firearm in public (§ 417, subd. (a)(2)). The information specially alleged Magana had committed the offense to benefit a criminal street gang (§ 186.22, subd. (b)(1)(A));[2] and he had committed a prior violent or serious felony conviction, which qualified him for sentencing under the “Three Strikes” law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and under section 667, subdivision (a)(1).
2. Summary of Trial Evidence
On April 8, 2009, Los Angeles Police Officer Karla Godoy had contact with Magana within the territory of the Varrio Vista Rifas (VVR) gang, near 253 Park View Street in Los Angeles. Magana was with five admitted members of the gang, one of whom was a minor named Marcos C. In speaking with Officer Godoy, Magana identified himself as a VVR gang member, with a moniker of “Bones,” and a home address about eight miles outside of VVR territory. Officer Gody noted there were VVR gang-related tattoos on Magana’s stomach and index finger.
On the afternoon of April 25, 2009, Magana and a boy, who appeared to be about 11 years old, emerged from an alley and walked down the street. Both were dressed in baggy black clothing. They encountered Jose Zitle, and Magana demanded Zitle’s money. When Magana lifted his shirt and reached for something in his waistband, Zitle turned and ran.
About 20 minutes later, Zitle was sitting in a car driven by his son-in-law, Juan Osuna, and saw Magana and the same boy at a nearby intersection. Osuna drove up and ask Magana if he had attempted to rob Zitle. Magana admitted that he had, and pulled a handgun from his waistband. Osuna and Zitle drove away. Magana and the boy fled down the street. Osuma and Zitle did not report the crimes to police.
That night, Zitle and Osuna were at a family barbeque in an apartment complex near 253 Park Street, a VVR gang stronghold, where Officer Godoy had spoken with Magana on April 8, 2009. Magana and two other men came by and attempted to enter the complex. A family member saw Magana and called police. Officers arrived and arrested Magana nearby. Zitle and Osuna identified Magana in a field show-up. The young boy who had accompanied Magana was never identified.
Los Angeles Police Officer Jason Abner, one of the arresting officers in this case, testified as the People’s gang expert. A 15-year veteran of the police force, first in Illinois and then in Los Angeles, Officer Abner had been assigned to the Rampart Division gang enforcement detail for the past two years where his primary duties were to gather gang intelligence, document gang members and investigate gang-related crimes. Officer Abner was responsible for monitoring two specific gangs within the Rampart Division, the VVR gang and the Temple Street gang, with which the smaller VVR gang was closely allied. Officer Abner estimated there were currently 25 to 30 VVR gang members and their territory was smaller than that of other gangs within the Rampart Division. According to Officer Abner, among the VVR gang’s primary activities are weapons violations, attempted murder, robbery, aggravated assault and narcotics. He explained that in his daily contacts with these gang members they tended to speak openly to him about what they were doing and what was happening in their families and in the community.
Officer Abner testified the general philosophy of the gangs he monitored was to eliminate rival gang members and to establish their dominance in the community. Individual gang members also were concerned with elevating their own status within the gang by “put[ting] in work,” which generally involved committing crimes on behalf of the gang and recruiting new members. New gang members are typically youths without parental supervision, who view gang members as role models because they are “powerful people controlling the streets.” These youths seek to join gangs in their neighborhood, or in a neighborhood where they previously lived, to benefit from the gang’s dominance in the community and its access to narcotics, weapons and money.
Officer Abner reviewed for the jury two minute orders memorializing the criminal dispositions of admitted VVR gang members. The first related to the conviction of Edin Misael Madrid for attempted murder and several counts of assault with a deadly weapon in July 2009. Officer Abner had spoken to the arresting officer and had personal knowledge Madrid was a VVR gang member. The second concerned the juvenile adjudication of Marcos C. as a minor in possession of a firearm. Officer Abner had been the arresting officer in that case and knew Marcos C. was a member of the VVR gang. Officer Abner testified Marcos C. was a member of the gang at the age of 14 years. The officer added he knew of VVR gang members who were as young as 13 years old.
Officer Abner was asked whether he had an opinion the crime was committed to benefit a gang. He responded in the affirmative, explaining, “I believe a gang operates on the basis of fear and intimidation and street level robberies or attempt robbery in this situation I think is one of the factors which does produce that fear and intimidation. Once we heard the testimony, we observed [Magana], his dress, I think his clothing and [Magana] was observed by [Zitle] 3 [sic] times within an area that is a stronghold of the VVR gang. [¶] Also, once [Magana] was confronted, he appeared to have an attitude where he stated that he answered, yes, he did attempt to rob again, an attitude of no fear. [¶] I think this fear and intimidation factor [lets] the gang work freely within that neighborhood. He can say he committed [the crime] but does not think somebody will testify against him. [¶] . . . [A]nd once [the gang] has this basis of fear [f]elt, they can do other things they want to do, they can tag the walls, they can commit other crimes without a fear of being reported by the citizens who live in that community.”
Officer Abner opined the commission of the attempted robbery and possession of the gun enhanced Magana’s reputation within the VVR gang. “A gang member commits these crimes, carries weapons, and that elevates his status within the gang, it shows he is willing to do whatever it takes for the gang, willing to put himself on the line, risk going to jail for the gang, and again that comes with a lot of what we talked about, why people join gangs. It’s for what they may not have at home or somewhere else, it’s being around people, and again he is doing – they do this to elevate themselves within the gang. [¶] And younger members, that is what they have to do is either commit these crimes, go to jail to elevate themselves, and then they get that power they are looking for over the younger gang members and over the neighborhood.”
When specifically asked his opinion as to how the unidentified boy’s involvement benefitted the gang, Officer Abner testified by participating in gang crimes, new recruits were able to prove their worthiness as gang members. “Again, younger members either are proving themselves to join the gang with the recruitment issue to go out and find these younger members. Basically if the younger member [is] caught [he] does not always get the penalty through the courts as an adult would. Also, it enhances their reputation with the gang as I just discussed and it proves themselves to other gang members that they are willing to do, work for the gang.”
Magana did not testify in his own behalf. His stepfather, Evaristo Rodriguez Gonzalez testified Magana was at home during the commission of the crimes.
3. Verdict and Sentence
The jury convicted Magana of both counts and found true the gang enhancement. In a bifurcated proceeding, the trial court found true the prior conviction allegations. Magana received an aggregate state prison sentence of 15 years, consisting of six years (double the three-year upper term) for attempted robbery, plus the upper term of four years for the gang enhancement under section 186.22, subdivision (b)(1)(A), plus five year for the prior serious felony enhancement under section 667, subdivision (a)(1). Magana was given credit for time served for exhibiting a concealable firearm in public.
DISCUSSION
Magana does not challenge the sufficiency of evidence to support his convictions for attempted robbery and exhibiting a concealable firearm in public. He also concedes there was substantial evidence he was an active member of the VVR gang. Magana contends, however, the evidence was insufficient to support the jury’s determination his crimes were committed to benefit a criminal street gang within the meaning of section 186.22, subdivision (b)(1). Specifically, Magana argues the evidence merely shows he was a gang member and the jury could not rely on Officer Abner’s expert testimony because it was speculation, unsupported by any substantive evidence. We agree.
1. Standard of Review
“To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]” (People v. Ramon (2009) 175 Cal.App.4th 843, 850.)
2. There Was Insufficient Evidence to Support the Gang Enhancement
Section 186.22, subdivision (b)(1) provides that a person convicted of a felony 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” can receive an enhanced sentence. (People v. Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley.) It applies to “gang-related” crimes. (People v. Castenada (2000) 23 Cal.4th 743, 745.)
An expert may render an opinion as to whether a crime is committed for the benefit of, at the direction of or in association with a criminal street gang. (See Gardeley, supra, 14 Cal.4th at pp. 617-618.) But that opinion must be based on the facts of a hypothetical question which must be “rooted in facts shown by the evidence.” (Id. at p. 618.) A gang expert’s testimony without such facts is insufficient to find an offense gang related. (People v. Ochoa (2009) 179 Cal.App.4th 650, 665 (Ochoa).) Evidence a gang member committed a crime along with an expert’s unsubstantiated opinion the crime was committed for the benefit of the gang is insufficient to find the gang enhancement to be true. (Ibid.) “[T]he record must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities and 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 (2004) 116 Cal.App.4th 753, 762 (Martinez).) The crime must have some connection with the activities of a gang. (Id. at p. 757.) “The gang enhancement cannot be sustained based solely on defendant’s status as a member of the gang and his subsequent commission of crimes.” (Ochoa, supra, at p. 663.)
Appellate courts find the perfunctory testimony of gang-experts insufficient to support the gang enhancement. In People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), officers stopped the defendant, a conceded gang member, while he was driving a stolen vehicle within his gang’s territory with a fellow gang member in the passenger seat. Officers found a loaded, unregistered firearm under the driver’s seat. (Id. at pp. 846-848.) Defendant was charged with receiving a stolen vehicle, possession of a firearm by a felon, possession of a firearm while an active gang member, and carrying a loaded firearm in public for which he was not a registered owner, as well as corresponding gang enhancements. (Id. at p. 848.) A gang expert testified that one of the gang’s primary activities was car theft and opined that by driving a stolen vehicle with an unregistered firearm within his gang’s territory, the defendant could conduct numerous crimes and simply abandon the vehicle and gun thereafter, having no ties to them. (Id. at pp. 847-848.) Both could be used to spread fear and intimidation within the gang’s territory. (Id. at p. 848.) In response to a hypothetical mirroring the facts of the case, the expert concluded the defendant’s crimes would benefit his gang. (Ibid.) The jury convicted the defendant of all the substantive counts and found true three of the four gang enhancement allegations. (Ibid.)
The Court of Appeal vacated the gang enhancements. It concluded the only “evidence” supporting an inference the defendant committed the instant crimes with the specific intent to benefit the gang was impermissible speculation: The People’s expert simply informed the jury of how he felt the case should be resolved. This was an improper opinion and was not substantial evidence to support the gang enhancement. There were no facts from which the expert could discern whether the defendant and his associate were acting on their own behalf or for the benefit of their gang. (Ramon, supra, 175 Cal.App.4th at p. 851.) “While it is possible the two were acting for the benefit of the gang, a mere possibility is nothing more than speculation. Speculation is not substantial evidence.” (Ibid; see also Martinez, supra, 116 Cal.App.4th at p. 757 [insufficient evidence that offense was gang activity because auto burglary is not necessarily a gang crime and no evidence to connect offense to gang activity].)
In Ochoa, the defendant approached a parked car with the victim inside, pointed a shotgun at the victim’s face and demanded the vehicle. The defendant made no gang signs or signals. The victim exited and ran away, and the defendant drove away in the car. A gang expert testified the defendant was a member of the Moreno Valley 13 gang, car theft and carjacking were “signature” crimes of that gang, and the crime was committed for the benefit of the gang because stealing the car provided economic benefit to the gang and raised its reputation in the community. (Ochoa, supra, 179 Cal.App.4th at pp. 653-656.)
The Court of Appeal concluded there was no evidentiary support for the expert’s opinion the offenses were for the benefit of the gang as “nothing in the circumstances of the instant offenses sustain the expert witness’s inference that they were gang related.” Carjacking is not only a gang offense and nothing was said during the crime to indicate that it was for the gang. (Ochoa, supra, 179 Cal.App.4th at pp. 661-662.)
In In re Frank S. (2006) 141 Cal.App.4th 1192, 1195 (Frank S.), a police officer detained the minor for failing to stop his bicycle at a red traffic light. The officer discovered a knife, a bindle of methamphetamine, and a red bandana on the minor. Among other charges, the People charged the minor with carrying a concealed dirk and a gang enhancement. The prosecution’s gang expert testified the minor was a gang member and the substantive offense was for the benefit of his gang. (Ibid.) The expert testified “a gang member would use the knife for protection from rival gang members and to assault rival gangs.” (Ibid.)
The appellate court reversed the enhancement, finding “nothing besides weak inferences and hypotheticals show the minor had a gang-related purpose for the knife.” (Frank S., supra, 141 Cal.App.4th at p. 1199.) “[U]nlike in other cases, the prosecution presented no evidence other than the expert’s opinion regarding gangs in general and the expert’s improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang . . . .’ [Citation.] The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor’s statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor’s specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.” (Ibid.)
Most recently, the California Supreme Court addressed this issue in People v. Albillar (December 20, 2010, S163905) ____ Cal.4th ____ [2010 DJDAR 18941]). That case concerned a sexual assault on a victim who knew at least two of the three assailants were gang members. In a challenge to the sufficiency of the evidence to support the finding that the crime was committed in association with, and for the benefit of the gang, the court identified two critical elements, established by specific evidence in the record and relied on by the gang expert to support his opinion. First, the crime was committed by three gang members, assisting each other, and relying on each other’s cooperation and loyalty to complete, and avoid responsibility for the crime. Second, because the victim knew they were gang members, the crime increased not only their individual reputations, but the reputation and intimidating nature of the gang in the community. (Id. at p. [18946].) Thus, “Not every crime committed by gang members is related to a gang. These crimes, though, were gang related in two ways: they were committed in association with the gang, and they were committed for the benefit of the gang.” (Id. at p. [18945].)[3]
Here, the prosecution offered substantial evidence that Magana was an active member of the VVR gang, which Magana does not dispute. However, the only evidence the attempted robbery was gang-related was Officer Abner’s testimony. Accordingly, we must consider whether there is anything in the record that would permit the officer to reach that conclusion.
We note at the outset that certain aspects of Officer Abner’s testimony elicited in this case were improper. In People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), the appellate court rejected a gang expert’s opinion that, “when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun.” (Id. at p. 652.) As the court explained, a gang expert’s opinion may address the ultimate issue in the case, but it is improper for an expert to opine on whether a “specific individual had specific knowledge or possessed a specific intent.” (Id. at p. 658.) Because the expert’s testimony provided the only evidence to establish the elements of the crime (id. at p. 659), it “did nothing more than inform the jury how [the expert] believed the case should be decided.” (Id. at p. 658; accord, Frank S., supra, 141 Cal.App.4th at pp. 1197-1198 [“Similar to Killebrew, the expert in this case testified to ‘subjective knowledge and intent’ of the minor. [Citation.] ‘Such testimony is much different from the expectations of gang members in general when confronted with a specific action.’”].)
Some of the questions posed by the prosecutor to Officer Abner crossed the line identified in Killebrew. Most disturbingly, without being premised on a hypothetical, Officer Abner was essentially asked if he believed Magana committed the attempted robbery to benefit his gang.[4] “Obviously there is a difference between testifying about specific persons and about hypothetical persons.” (People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3.) Here, in giving his direct opinion of Magana’s mental state or purpose in committing the crime, Officer Abner’s testimony exceeded the scope of a permissible expert opinion by attributing a specific intent to Magana’s conduct, and in essence, advising the jury how to decide the case. (See People v. Torres (1995) 33 Cal.App.4th 37, 46, [expert witness may not directly opine as to the defendant’s guilt or innocence.]; People v. Gardeley, supra, 14 Cal.4th at pp. 618-619 [gang expert may testify a crime was committed to benefit a gang, in response to a hypothetical question that assumes the truth of the trial evidence.].)
Although Officer Abner’s testimony improperly invaded the province of the jury, in the absence of a defense objection, we nonetheless consider whether his testimony had evidentiary support, such that it constituted sufficient evidence to support the gang enhancement. According to Officer Abner, from his training and experience, he was aware VVR gang members committed robbery and other violent crimes in their claimed territory to enhance both their individual standing within the gang and their gang’s authority within that territory. Officer Abner then concluded because Magana was a member of the VVR gang and had committed attempted robbery in his gang’s territory, Magana necessarily committed those crimes for the gang’s benefit. While Magana may well have been acting with the specific intent to benefit his gang when he committed the crime at issue in this case, there are no facts in the record on which Officer Abner could have relied to reach that conclusion. (See Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1110 [“‘an expert’s opinion which rests upon guess, surmise or conjecture, rather than relevant probative facts, cannot constitute substantial evidence’”]; People v. Richardson (2008) 43 Cal.4th 959, 1008 [“‘[g]enerally, an expert may render opinion testimony on the basis of facts given “in a hypothetical question that asks the expert to assume their truth,””’ provided the hypothetical is rooted in the evidence; however, “the expert’s opinion may not be based ‘on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors’”].)
Unlike Albillar, here there was no evidence to suggest Magana was actually motivated by any of the factors Officer Abner proposed in explaining why the attempted robbery was to benefit his gang. For example, Officer Abner testified VVR gang members commit robbery to enhance their reputation within the gang, to elevate the gang’s status within the community, and as a recruiting tool for new members. However, there was no evidence that anyone in the gang knew Magana had committed the attempted robbery or that the young boy accompanying Magana was a new recruit or perspective VVR gang member. (See, e.g., Frank S., supra, 141 Cal.App.4th at p. 1199; Ochoa, supra, 179 Cal.App.4th at p. 662.) Thus, there was no evidence of cooperative activity between gang members. Moreover, although Officer Abner’s testimony that gang members who carried weapons, like Magana, indicated their willingness to defend their gang at the risk of being incarcerated, there is no evidence any VVR gang member knew Magana was in possession of a weapon.
Officer Abner’s testimony that VVR gang members commit robbery to obtain money for the gang or to intimidate members of the community into allowing the gang to operate freely is also insufficient evidence to support the gang enhancement. Nothing in the commission of the attempted robbery suggested Magana intended to obtain money or to intimidate Zitle on his gang’s behalf, rather than for his own personal gain or protection.[5] (See, e.g., Frank S., supra, 141 Cal.App.4th at p. 1199; People v. Martinez, supra, 116 Cal.App.4th at p. 757 [insufficient evidence that offense was gang activity because auto burglary is not necessarily a gang crime and no evidence to connect offense to gang activity].) Indeed, in attempting to rob Zitle, Magana did not yell out his gang’s name or display any gang signs or tattoos or otherwise call attention to his gang to reflect his intent he was acting for its benefit. There is no evidence that the victim knew Magana was a gang member, or that, in chasing him down, the victim was intimidated. Nor was there evidence Magana encouraged the boy to reveal his gang affiliation, if in fact the boy was a gang member, in some way during the attempted robbery. (See, e.g., Ochoa, supra, 179 Cal.App.4th at p. 662.)
The People also assert that, although he lived nearly eight miles away, Magana was seen repeatedly over time inside VVR gang-controlled territory, which was also near the crime scene, “proved [Magana] was controlling the area for his gang.” Whatever evidentiary support that fact might provide in other circumstances, Magana was an admitted member of the VVR gang. His presence inside his gang turf is of no probative value with respect to his intent to commit this crime. The fact that in visiting the gang stronghold, he was also near the crime scene is inconsequential; it merely reinforces his identity as an active VVR gang member without demonstrating that his crime was in any way gang-related. In sum, here there was only speculation, not evidence, this was a gang-related crime.
DISPOSITION
The true finding on the section 186.22, subdivision (b)(A) enhancement is reversed, the enhancement is stricken and the judgment is otherwise affirmed. On remand, the trial court is instructed to prepare and to forward to the Department of Corrections and Rehabilitation a corrected abstract of judgment.


ZELON, J.
We concur:


PERLUSS, P. J.


JACKSON, J.



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