P. v. Nunes
Filed 8/3/12 P. v.
Nunes CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
AUSTEN ROBERT MANUEL NUNES et al.,
Defendants and
Appellants.
C060871
(Super.
Ct. Nos. 072135/054185)
OPINION
ON REMAND
INTRODUCTION
In April 2007,
defendants Austen Nunes, Pauliton Nunes, and Daniel Bonge
went with several others to the train tracks in West Sacramento
to drink some stolen beer. When an
Amtrak train came by, slowing as it approached Sacramento,
one of the group stood on the tracks, and Austen threw a rock at the
train. The train stopped and the angry
engineer got off the train. A vicious
assault on the engineer followed.
Defendants (and
two others not before us) were prosecuted for multiple felonies, including
weapon on a public transit employee with great bodily injury and criminal
street gang enhancements. The jury found
defendants guilty of most of the charges and found most of the great bodily
injury enhancement allegations true,
but found the gang enhancement allegations were not true. The jury did, however, find defendants guilty
of the offense of criminal street gang
activity (sometimes called street terrorism).
On appeal,
defendants contend: (1) it was error to
qualify Police Officer Kenneth Fellows as a gang expert; (2) Officer Fellows’s
testimony improperly invaded the province of the jury; (3) there was
insufficient evidence to support their convictions of criminal street gang
activity; and (4) in any event the trial court should have stayed the sentence
for criminal street gang activity pursuant to Penal Code
section 654. Austen and Pauliton further
contend the trial court erred in failing to instruct the jury that the
testimony of Bonge’s girlfriend, C. S., had to be corroborated because she was
an accomplice. In addition, Austen
contends there was insufficient evidence he personally inflicted great bodily
remaining contentions: (1) their
convictions for assault with a deadly weapon (counts 2 through 4) should be
reversed because those offenses are lesser included offenses of assault with a deadly
weapon on a public transit employee, of which defendants were also convicted
(counts 5 through 7); (2) the great bodily injury enhancements to their
convictions for battery with serious bodily injury (count 8) must be stricken;
and (3) the amount of their court security fees must be corrected.
We agree with
those of defendants’ claims the People have conceded and reverse defendants’
convictions for assault with a deadly weapon (counts 2, 3, and 4) and the great
bodily injury enhancements on their battery convictions (count 8). Pursuant to the Supreme Court’s recent
opinion in People v. Mesa (2012) 54
Cal.4th 191 we also stay the sentence for criminal street gang activity
pursuant to section 654. Finally, we
correct the amount of the court security fees.
Otherwise, however, we affirm the judgment. As we will explain, the gang expert was
properly qualified and his testimony did not exceed the permissible scope for a
gang expert. There was substantial
evidence of criminal street gang activity, and there was no evidence C. S. was
an accomplice. Moreover, her testimony
provided substantial evidence that Austen personally inflicted great bodily
injury.
FACTUAL
AND PROCEDURAL BACKGROUND
A
On April 16, 2007, several people,
including defendants, was hanging out and drinking at the Pickwick Motel in West
Sacramento. Among the group
was Bonge’s girlfriend, C. S., and her brother Ernie, a self-proclaimed
Broderick Boys gang member. The group
took multiple photographs at the motel that were later found on Pauliton’s cell
phone, which was discovered at the scene of the attack on the train
engineer. The photographs showed
defendants and some others making gang signs outside the motel. In particular, they were forming the letter
“N” and the number “14” or “XIV,” which symbolize the Norteño gang (N being the 14th
letter of the alphabet), and the letter “B,” which symbolizes the Broderick
Boys, a subset of the Norteño
gang in West Sacramento.
After spending a
while at the motel, a smaller group that included C. S. and defendants went swimming
in the Sacramento River.
After that, Austen suggested a beer run, and the group stole beer from a
market. The group then went to the train
tracks to drink the stolen beer.
At some point,
after one of the group (Javier Ramos) went up on the tracks, an Amtrak
passenger train approached on its way to Sacramento. The crew had received information that there
were trespassers on the tracks, and as the train slowly approached the I Street
Bridge the engineer, Jacob Keating, saw a person on the tracks waving his
hands. As Keating stopped the train to
avoid hitting the person (Ramos), Austen threw a rock at the train. Keating flinched and cursed as the rock
struck the window frame near his head.
Angry, Keating got
off the train and yelled at the group to get off the tracks. The group started throwing rocks at him and
he threw a rock back. Keating then saw
Bonge approaching him with a big rock in his hand. Keating asked Bonge if Bonge was going to hit
him, but then, in self-defense, Keating punched Bonge first. After Keating hit Bonge a second time, Bonge
fell to the ground and pulled Keating with him, where Keating continued to
punch Bonge. Pauliton intervened, kicking
Keating in the ribs. Keating then began
fighting with Pauliton, and a third person came up and hit Keating in the face
a couple of times.
Meanwhile, the
train’s conductor, William Ray, Jr., had followed Keating off the train,
grabbing a fire extinguisher before he stepped off because he heard
yelling. After the group began throwing
rocks at him, Ray discharged the fire extinguisher, then threw rocks back at
them. At some point he set the fire
extinguisher down and was rushed by several individuals. Eventually Ray managed to get back on the
train amidst a barrage of rocks and bottles.
Richard
D’Alessandro was a student engineer on the train. He also got off of the train and found it
hard to see; things happened fast and it was “almost like a dream.” Rocks and bottles were being thrown. D’Alessandro was not hit, but he reeked of
beer. He returned to the train and
called dispatch, requesting police assistance.
A service attendant on the train had also called 911.
In the midst of
the attack, Keating managed to get back on the train. When he saw that D’Alessandro was still
outside and “in a bad situation,” he got back off the train. He eventually ran into “the trespassers on
the tracks” and ended up fighting with five of them. Someone tackled him from behind, and then he
was struck in the back of the head with a Grey Goose vodka bottle.
head with the fire extinguisher.
Keating begged his attackers not to kill him, but they continued
attacking him. Eventually Keating was
bleeding so profusely that everyone ran.
As Keating tried
to get back on the train, Austen and another person returned and punched him,
and Austen demanded his wallet and cell phone.
When Keating told them, “‘It is on the train,’” they hit him again, but
then ran away when they determined the police were coming.
When Keating
finally made it back onto the train, D’Alessandro drove the train into
Sacramento. There was blood, broken
glass, stones, and fire extinguisher dust everywhere. D’Alessandro described the scene as “pretty
horrific.”
Keating suffered
serious injuries from the assault. He
spent two and one-half days in the hospital and required staples to close the
cuts on his head. In addition, he had
numerous cuts and bruises and had to use a cane for two or three months. About a week after the attack, Keating
returned to the hospital with severe postconcussive symptoms.
B
The indictment
charged defendants and two others (including Ramos) with 12 felonies and two
misdemeanors: specifically, one count of
attempted murder (count 1); three counts of assault with a deadly weapon (the
fire extinguisher, the vodka bottle, and the stones) (counts 2, 3, and 4);
three counts of assault with a deadly weapon on a public transit employee (the
fire extinguisher, the vodka bottle, and the stones) (counts 5, 6, and 7); one
count of battery with serious bodily injury (count 8); one count of attempted
second degree robbery (count 9); one count of throwing a missile at a vehicle
of a common carrier (count 10); one count of vandalism (count 11); one count of
criminal street gang activity (count 12); and two misdemeanor counts of assault
on transportation personnel (counts 13 and 14).
All of the felony charges included great bodily injury enhancement
allegations, and all of the felony charges except the criminal street gang
activity charge (§
186.22, subd. (a)) included enhancement allegations for criminal street gang
activity under section 186.22, subdivision (b).
C
Before trial,
Bonge moved to limit the testimony of any gang expert the People intended to
call. The trial court denied that
motion. Subsequently, during trial,
Austen and Pauliton moved to exclude any gang expert testimony on the ground there
was insufficient evidence the crimes were gang related. Bonge joined that motion.
The court held a
hearing on the motion to exclude gang expert testimony. Pauliton’s attorney complained about late
discovery and the late notice that Officer Kenneth Fellows would be substituted
as the People’s gang expert in place of the officer who had testified before
the grand jury. The trial court ruled
the defense could impeach Officer Fellows with the grand jury testimony of the
other officer and limited Officer Fellows to giving opinions based on the
reports defendants currently had. The
court also limited Officer Fellows to the theory of gang involvement advanced
before the grand jury.
Subsequently,
Officer Fellows testified he had been a West Sacramento police officer for
approximately nine years. He was
currently assigned to the community response team, which dealt with gang,
narcotic, and prostitution crimes and other quality of life issues. Before this assignment, he had been on patrol
for approximately seven years.
Officer Fellows
had 250 hours of formal training on gangs.
His last training was a 16-hour FBI course a week before he
testified. In addition to formal
training, he had received training from field training officers and the gang
investigator who had testified before the grand jury. Of his 250 hours of formal training,
approximately 100 hours were devoted to Hispanic gangs, including the Norteños.
Officer Fellows
had attended a debriefing of a lieutenant of the Nuestra Familia, a prison
gang. The Norteño gang is a division of the Nuestra Familia, and the Broderick
Boys is a division (or subset) of the Norteños. Officer
Fellows was a member of the California Gang Task Force, the Northern California
Gang Investigators Association, and the California Gang Investigators
Association. He had experienced no fewer
than 700 gang contacts, mostly with Norteños, including the Broderick Boys, while working with
gang members in West Sacramento. In his
conversations with gang members, they had discussed the lifestyle, philosophy,
membership, dress, hairstyles, signs and tattoos, graffiti, rivalries and
alliances, and turf of the gang. They
also discussed the gang concept of respect.
Officer Fellows
had investigated no fewer than 20 gang crimes and had assisted in other
investigations. He reviewed reports of
gang-related crimes and consulted the database of gang-related crime members
and suspects. He also read literature on
gangs. Other officers asked him
questions about gangs. Officer Fellows
had previously been qualified as a gang expert in three preliminary hearings.
Defendants
objected to Officer Fellows testifying as a gang expert, but the trial court
overruled their objections.
Officer Fellows
testified there are over 300 validated gang members in West Sacramento; 167 of
them are members of the Broderick Boys.
The Broderick Boys identify with the number 14 and the color red. They also identify themselves with the letter
B.
There are several
ways to become a member of the Broderick Boys.
One can be “jumped in” through a fight.
Another method is generational, by which members are accepted into the
gang because there are already gang members in their family. Others join as walk-ins by hanging around
gang members. Although Norteños are primarily Hispanic,
in West Sacramento, whites and blacks are also accepted as members of the
Broderick Boys.
Officer Fellows
explained that gang members are expected to put in work or “earn [their] bones”
to show they are “down for the gang.”
They do this by committing crimes or backing up fellow gang members who
are confronted by rivals. They then earn
loyalty or status within the gang and earn the right to a gang tattoo, such as
four dots.
Turf is very
important and the gang protects it. The
turf of the Broderick Boys is north of Highway 50 to the Sacramento River and
east of Harbor Boulevard, within the old neighborhoods of Broderick and
Bryte. The railroad tracks where the
attack on the engineer occurred were within the turf claimed by the Broderick
Boys. There was a substantial amount of
Broderick Boys graffiti in the area.
Officer Fellows
testified that the primary activities of the Broderick Boys are
narcotics sales, weapons violations, and homicides. The assaults often involve weapons and are
violent, with multiple members attacking a single victim. Officer Fellows identified different levels
of participation in a gang: “hanging
around associates,” who do not commit crimes; active gang members, who commit
crimes and recruit; and old gangsters or “OG’s,” who are older and out of
prison. “OG’s” are less likely to be
actively involved; they use younger members to commit crimes.
Officer Fellows
gave his opinion that Bonge was an active participant in the Broderick Boys. He based his opinion in part on the various
photographs showing Bonge and others making the signs “N,” “XIV,” and
“14.” Officer Fellows noted the pictures
had been taken in public and there would be adverse consequences for displaying
gang signs if one was not a member.
Officer Fellows
also based his opinion on evidence that Bonge had a prior police contact in
which he was issued a STEP Act
name="_ftnref4" title="">[4]
notice for hanging out with gang members.
Specifically, Bonge was caught shoplifting at a Walgreens drug store in
2006 with Pauliton and Rolando Venegas, a validated Norteño and Broderick Boy.
Officer Fellows
also relied on the theft of the beer on the day of the attack on the train
engineer to support his opinion that Bonge was an active participant in the
Broderick Boys gang. Fellows noted that
Bonge associated with others to conspire to steal the beer and to engage in the
gang activity of drinking beer and celebrating.
Officer Fellows
also gave his opinion that Austen was an active participant in the Broderick
Boys. He based his opinion in part on
the fact that items seized from the Nunes residence -- which included a piece of notebook paper
with “SAC,” “916,” “Norte,” and “409” on it; two red bandanas; and a shirt with
the character from the movie Scarface
on it -- showed gang affiliation.
gangster that glamorized the mentality that gang members idolize. The red clothing showed the residents were
“gang related for the Norteños.”
Also, when Austen
was admitted to juvenile hall in 2005, he asked if it was filled with “scraps,”
a derogatory term Norteño
gang members use for members of the rival Sureño gang. According
to Officer Fellows, this showed Austen was a Norteño. Fellows also
relied on another incident in 2006, in which Austen was documented wearing a
red belt, and on the fact that Austen was shown making gang signs in the
photographs taken on the day of the incident.
For similar
reasons, Officer Fellows gave his opinion that Pauliton was an active member of
the Broderick Boys.
It was also Officer Fellows’s opinion that
Ramos and the fifth charged defendant (R. R.) were active gang
participants. Ramos had admitted he was
a Norteño, claiming he
was “jumped in” but had not yet put in the work to get his dots. Like Austen, Ramos used a derogatory term for
Sureños (“sewer rats”
while in juvenile hall. For his part, R.
R. displayed his alignment with the Norteños by putting four dots and the number 14 on his sandals
while in juvenile hall.
Officer Fellows
explained the concept of respect as it pertains to gang members. A gang member can earn respect quickly by an
act of violence since respect is associated with fear in a gang. The more violence a gang commits, the more it
cripples the community and makes citizens less likely to stand up and report
gang crimes. Fear and intimidation are a
gang’s ultimate power over the community.
Even if gang members do not shout out the name of their gang during an
attack, in a small community word of gang violence spreads fast.
Officer Fellows
also testified about three members of the Broderick Boys who had been convicted
of gang-related crimes.
On
cross-examination, Officer Fellows admitted it was not a crime to belong to a
gang. Also, he testified the Broderick
Boys were disorganized, with no “shot caller.”
In response to a
direct question by defense counsel, Officer Fellows testified it was his
opinion that the assault on the railroad tracks was a gang crime because
numerous gang members were associating and came to the aid of their friend who
was being beaten in the fight and “turned the tables.” “Multiple subjects, that’s gang mentality,
that’s a gang attack, it is a gang assault.”
The assault was a gang crime because of the association of the gang members,
their prior documentation as gang members, their prior contacts with law
enforcement, and the photographs showing them acting like gang members by
throwing gang signs. Defendants did not
just pull a friend away from a fight; they used numerical supremacy to turn the
tables.
In response to
did not know the whole picture because he had not reviewed all the reports of
the incident, Fellows responded he knew that the engineer was assaulted, that
defendants are gang members, that the assault benefited the gang, and that
defendants acted in association for the benefit of the gang.
D
The jury acquitted
Bonge of attempted murder, attempted voluntary manslaughter (a lesser included
offense of attempted murder), and attempted robbery, but found him guilty of
the remaining charges. The jury
acquitted Austen of attempted murder but found him guilty of attempted
voluntary manslaughter and all of the remaining charges. The jury acquitted Pauliton of attempted
murder and attempted robbery but found him guilty of attempted voluntary
manslaughter and all of the remaining charges.
As for the
sentencing enhancement allegations, the jury found all of the criminal street
gang enhancement allegations not true but found the great bodily injury
enhancement allegations true as to the charges of the assault with the fire
extinguisher (counts 2 and 5), the battery charge (count 8), and the criminal
street gang activity charge (count 12).
For each
defendant, the trial court designated the assault with a deadly weapon on a
public transit employee using the fire extinguisher (count 5) as the principal
term and imposed a seven-year prison sentence for the conviction and the
associated great bodily injury enhancement.
Additionally, the court imposed a consecutive eight-month term on each
defendant for the vandalism conviction and a consecutive eight-month term on
each defendant for the criminal street gang conviction (although the court
stayed the additional term for the associated great bodily injury
enhancement). The court also imposed a
consecutive eight-month term on Austen for the attempted robbery conviction. The court stayed the terms or sentenced
concurrently on all other convictions and enhancements. Thus, the court sentenced Austen to an
aggregate term of nine years in prison, Pauliton to a term of nine years and
four months (which included a year for a prior charge), and Bonge to a term of
eight years and four months.
DISCUSSION
I
Defendants contend
the trial court abused its discretion in qualifying Officer Fellows as a gang
expert because “he lacked expertise in gangs.”
We disagree.
“‘[A] person is
qualified to testify as an expert if he has special knowledge, skill,
experience, training or education sufficient to qualify him as an expert on the
subject to which his testimony relates.
Whether a person qualifies as an expert in a particular case, however,
depends upon the facts of the case and the witness’s qualifications. [Citation.]
The trial court is given considerable latitude in determining the
qualifications of an expert and its ruling will not be disturbed on appeal
unless a manifest abuse of discretion i[s] shown. [Citations.]’
[Citation.] This court may find
error only if the witness ‘clearly lacks
qualification as an expert.’” (
1343, 1377.)
Under this
deferential standard, we must reject defendants’ challenge to Officer Fellows
as a gang expert. It is true, as Austen
points out, that Officer Fellows lacked the amount of experience in working
with and investigating gangs that officers qualified as gang experts in other
cases have had. For example, in
153, one expert had been a gang investigator since 1973 and had investigated
more than 100 gang homicides; another had worked with gangs for 10 years,
specializing in them for four years and giving lectures on the subject; and the
third was a member of the gang unit and had been involved with gangs for seven
years. (Id. at pp. 177, 195.)
While Officer
Fellows’s experience was not as extensive as the experience of these other
officers, he nonetheless had sufficient gang training and experience for the
trial court to reasonably find that he was qualified to testify as an expert on
the subject. He had 250 hours of formal
training on gangs, as well as additional training with the gang investigator
who had testified before the grand jury.
Also, he had investigated at least 20 gang cases and assisted on others,
had hundreds of contacts with gang members, including a debriefing with a
lieutenant of the Nuestra Familia, and had read gang reports and other
literature on gangs.
Defendants complain
that before this case Officer Fellows “had never . . . qualified or testified
as an expert [on gangs] in a jury trial.”
That fact is irrelevant, however, because, in and of itself, the lack of
previous qualification in court does not prove a lack of sufficient experience
to qualify as an expert. Indeed, every
expert has to qualify as an expert for the first time some time. In any event,
Officer Fellows had qualified as a
gang expert at three preliminary hearings.
Defendants also
complain that Officer Fellows’s training was not specific to the Broderick Boys
gang, but they make no showing there is any significant distinction between the
Broderick Boys and other Norteño
gangs. Indeed, Officer Fellows testified
that the Broderick Boys “are different from Norte[ñ]os [only] in the sense that the Broderick Boys are a set of Norte[ñ]os [that] function within the
community of West Sacramento.” Further,
while Officer Fellows’s formal classroom training may not have embraced the
Broderick Boys in particular, he had significant practical experience with the
Broderick Boys in his more than 700 gang contacts.
On this record,
the trial court did not abuse its discretion in finding Officer Fellows
qualified to testify as a gang expert.
II
Defendants contend Officer Fellows’s testimony invaded the
province of the jury because he testified to his opinion that defendants were
active gang participants and that the crimes were gang related. They contend this testimony was tantamount to
giving the opinion that defendants were guilty.
They further contend they were denied effective assistance of counsel
because defense counsel failed to object to this improper testimony.
In
Cal.App.4th 644, 658, the court held testimony of a gang expert on the
subjective knowledge and intent of a specific, individual gang member was
impermissible. In reaching this
conclusion, the court surveyed case law that found expert opinion proper on
certain aspects of gangs. The list of
permissible gang topics included “the ‘culture and habits’ of criminal street
gangs [citation], including testimony about the size, composition or existence
of a gang [citations], gang turf or territory [citations], an individual
defendant’s membership in, or association with, a gang [citations], the primary
activities of a specific gang [citations], motivation for a particular crime,
generally retaliation or intimidation [citations], whether and how a crime was
committed to benefit or promote a gang [citations], rivalries between gangs
[citation], gang-related tattoos, gang graffiti and hand signs [citations], and
gang colors or attire [citations].” (
The testimony of
Officer Fellows fell within these established parameters for proper testimony
of a gang expert. In particular, Officer
Fellows was entitled to testify about the gang membership of the various
defendants, i.e., that they were active participants in a gang. (See People
v. Duran (2002) 97 Cal.App.4th 1448, 1463-1464 [expert testimony was
sufficient to prove gang membership].)
Furthermore, because a violation of section 186.22, subdivision (a)
requires more than active membership in a gang, Officer Fellows did not give an
improper opinion on defendants’ guilt simply by expressing an opinion on their
active participation in a gang.
Because Officer
Fellows’s testimony about defendants’ active participation in the gang was
proper, we reject defendants’ argument that their counsel were ineffective
for failing to object to that testimony.
“Defense counsel does not render ineffective assistance by declining to
raise meritless objections.” (
664, 674, fn. 8.)
As for Officer
Fellows’s testimony that the assault on the train engineer was gang related, we
find no reversible error or ineffective assistance of counsel with respect to
that testimony either. In
650, 664, the court stated that it was “impermissible” for the prosecutor to
ask the gang expert whether the crimes were committed to benefit the gang,
rather than posing a hypothetical question to the expert. While Officer Fellows testified here that it
was his opinion the assault was a gang crime, this opinion was elicited not by
the prosecutor, but by defense counsel on cross-examination. More importantly, the jury’s verdicts reveal
that the jurors did not credit this aspect of Officer Fellows’s testimony, as
the jury found all of the criminal street gang enhancement allegations were not
true. Under these circumstances,
defendants cannot demonstrate prejudice from Officer Fellows’s testimony, even
if we were to conclude defense counsel fell below an objective standard of
reasonableness in eliciting it. (See
430 [setting forth standards for ineffective assistance of counsel claim].)
III
Defendants contend
there was insufficient evidence to support their convictions for criminal
street gang activity (count 12). At
least one defendant challenges the sufficiency of the evidence as to every
element of the crime: that is, they
contend there was insufficient evidence
that the Broderick Boys qualified as a criminal street gang, that they were
active participants in the gang, that they knew the gang engaged in a pattern
of criminal conduct, and that they intended to promote or assist the gang in
any felonious conduct. Additionally, defendants
contend Officer Fellows’s testimony was speculative and thus an improper basis
for finding they were active participants in a criminal street gang. We address, and reject, each of these
contentions in turn.
A
“The proper test
for determining a claim of insufficiency of evidence in a criminal case is
whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.
[Citations.] On appeal, we must
view the evidence in the light most favorable to the People and must presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.
[Citation.] [¶] Although we must ensure the evidence is
reasonable, credible, and of solid value, nonetheless it is the exclusive
province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts on which that determination depends. [Citation.]
Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of
a witness’s credibility for that of the fact finder.” (People
v. Jones (1990) 51 Cal.3d 294, 314.)
Subdivision (a) of
section 186.22 provides as follows: “Any
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, shall be punished by imprisonment in
a county jail for a period not to exceed one year, or by imprisonment in the
state prison for 16 months, or two or three years.”
A “criminal street
gang” is “any ongoing organization, association, or group of three or more
persons, whether formal or informal, having as one of its primary activities
the commission of one or more of the criminal acts enumerated in paragraphs (1)
to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a
common name or common identifying sign or symbol, and whose members
individually or collectively engage in or have engaged in a pattern of criminal
gang activity.” (§ 186.22, subd.
(f).) The term “pattern of criminal
activity” requires proof that gang members committed two or more predicate
offenses. (§ 186.22, subd. (e).) The qualifying predicate offenses include
assault with a deadly weapon or by means of force likely to produce great
bodily injury. (§ 186.22, subd. (e)(1).)
B
Of Criminal Activity
Defendants contend
there was insufficient evidence the Broderick Boys qualified as a criminal
street gang. Specifically, they contend
that there was insufficient evidence that one of the primary activities of the
Broderick Boys is the commission of statutory gang offenses or that its members
engage or have engaged in a pattern of criminal activity.
“Sufficient proof
of the gang’s primary activities might consist of evidence that the group’s
members consistently and repeatedly have committed criminal activity listed in
the gang statute.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 324, italics
omitted.) Expert testimony on the
subject may also be sufficient. (
Here, sufficient
evidence of both the primary activities of the gang and its pattern of criminal
activity was provided by expert testimony.
Officer Fellows testified the primary activities of the Broderick Boys
were assaults, thefts, burglary, narcotics and weapons violations, and
homicide. Officer Fellows further
testified to several serious assaults committed by members of the Broderick
Boys gang. Two members of the Broderick
Boys, Raymond Corona and Robert Montoya, brutally attacked a citizen in 2003,
resulting in a conviction. Also, Officer
Fellows personally investigated Caeser Lara Morales for conspiracy to commit
assault with a deadly weapon arising out of a shooting in West Sacramento,
which resulted in his conviction in 2007, along with a gang enhancement. Officer Fellows also knew that Jessie Garcia,
another Broderick Boy, was convicted of assault with a deadly weapon likely to
produce great bodily injury.
Defendants contend
the foundation for Officer Fellows’s testimony was insufficient because he
personally knew of only the Morales case.
It is well established, however, that a gang expert may base his
opinions on personal observations and experience, the observations of other law
enforcement officers, police reports, and conversations with gang members. (People
v. Gamez (1991) 235 Cal.App.3d 957, 967.)
Personal knowledge is not required.
Here, Officer Fellows testified that he based his opinion regarding the
primary activities of the Broderick Boys on his “experience working in the City
of West Sacramento, responding to calls of that nature, reviewing reports, and
investigating them.” That was
sufficient.
C
Defendants contend
there was insufficient evidence they were active participants in the Broderick
Boys gang. According to Pauliton,
“[o]ther than the expert’s opinion, the prosecution’s evidence [of active
participation] was sparse and limited to a few photos of some defendants
throwing gang signs, captured on a cell phone camera at the party, a red
bandana in those pictures, an ‘association’ with one police-identified
validated gang member a year before, which occurred during a suspected petty
theft investigation, a red shirt found in a common area of [the Nunes] home,
whose ownership was never established, and a writing seized from somewhere in
the home, also without attribution.”
Active
participation in a criminal street gang requires involvement “that is more than
nominal or passive.” (
743, 747.) Active participation in a
criminal street gang can be shown by contacts with members of the gang,
bragging about gang association or membership, and assisting or promoting
felonious conduct by the gang. (
Here, the evidence
established that earlier on the day of the assault, defendants and others,
including a validated Broderick Boys gang member, gathered at a motel in West
Sacramento. While there, defendants
posed for several photographs throwing gang signs: variations of “N,” “14,” and “XIV,” which are
symbols associated with the Norteño
gang (of which the Broderick Boys is a subset), as well as the letter “B,”
which is a symbol associated specifically with the Broderick Boys. Pauliton displayed a red bandana, another
Norteño symbol. Although it is possible to interpret these
poses as “horsing around” and “mimick[ing] gang members,” the jury was
certainly under no obligation to draw that conclusion, particularly in light of
Officer Fellows’s testimony that “[i]f a gang member was to see somebody was
throwing up the Norte[ñ]o or
Broderick [Boys] gang sign knowing that individual was not part of that gang it
would be their obligation and duty to attack and assault that individual.”
“It is the
province of the trier of fact to decide whether an inference should be drawn
and the weight to be accorded the inference.”
(People v. Massie (2006) 142
Cal.App.4th 365, 374.) “‘If the
circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also be reasonably reconciled
with a contrary finding does not warrant a reversal of the judgment.’” (People
v. Perez (1992) 2 Cal.4th 1117, 1124.)
Here, it was for the jury, not us, to decide what inference to draw from
the photographs. Moreover, based on all
of the evidence, it was eminently reasonable for the jury to infer that by
posing for photographs throwing gang signs in public view, defendants were
proudly announcing and bragging about their gang affiliation and not just
“horsing around.”
Other evidence
also supports the jury’s finding that defendants were active participants in
the Broderick Boys gang. They were in
the presence of a validated gang member (Ernie S.) when they posed for
photographs at the motel making gang signs.
Bonge and Pauliton had been in the company of Rolando Venegas, another
validated Broderick Boys gang member, during a shoplifting incident. Clothing and writing indicative of a gang
affiliation was found at the Nunes residence.
Austen had referred to “scraps,” a derogatory term for Sureño gang members, while at
juvenile hall and also had worn a red belt.
The jury could
also rely on defendants’ charged conduct to support the finding of active gang
participation. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.) Significantly, the assault, one of the gang’s
primary activities, took place on the “turf” of the Broderick Boys, and
defendants acted together in committing the crime, displaying a gang
mentality. Further, they also acted in
concert when stealing the beer, and Officer Fellows identified theft as another
primary activity of the Broderick Boys.
Taken as a whole,
and in the light most favorable to the jury’s verdicts, the evidence was
sufficient to prove that defendants were active participants in a criminal
street gang.
D
Defendants contend
there was insufficient evidence they knew the Broderick Boys engaged in a
pattern of criminal gang activity.
According to Austen, “[n]o evidence showed [he] knew about any other
criminal activities of the gang or its members, other than the offenses on
trial.”
For purposes of
section 186.22, subdivision (a), knowledge that members of a gang engage in or
have engaged in a pattern of criminal gang activity requires only general
knowledge of the gang’s criminal purposes; it “does not require a defendant’s
subjective knowledge of particular crimes committed by gang members.” (People
v. Carr (2010) 190 Cal.App.4th 475, 488, fn. 13.) “[J]ust as a jury may rely on evidence about
a defendant’s personal conduct, as well as expert testimony about gang culture
and habits, to make findings concerning a defendant’s active participation in a
gang or a pattern of gang activity, it may also rely on the same evidence to
infer a defendant’s knowledge of those activities.” (Id.
at p. 489, fn. omitted.) Here,
defendants’ association with known gang members, including Pauliton and Bonge’s
presence with Venegas at the Walgreens shoplifting incident, and defendants’
conduct in stealing beer and assaulting the train engineer (and related crimes
on the train tracks) shortly after their brazen display of gang association,
coupled with the expert testimony about the culture and habits of the Broderick
Boys gang, provided sufficient evidence of the knowledge element of section
186.22, subdivision (a).
E
Assistance
Defendants contend
there was insufficient evidence they intended to promote or assist the gang in
any felonious conduct. Bonge contends
there was no evidence, except his gang affiliation, that he “willfully intended
to facilitate or promote felonious gang-related
criminal conduct.” (Italics added.) For his part, Austen contends the court
committed instructional error by failing to instruct that the felonious conduct
assisted must be gang related, and the jury’s “not true” findings on the
criminal street gang enhancement allegations under subdivision (b) of section
186.22 show that the jury found the felonious conduct was not gang related.
Defendants’
contentions are answered by the recent case of People v. Albillar (2010) 51 Cal.4th 47. There, the California Supreme Court held
there is no requirement under section 186.22, subdivision (a) that the
felonious conduct that is promoted, furthered, or assisted be gang related. (Albillar,
at pp. 51, 56.) Because defendants’
arguments are based on a premise our Supreme Court has rejected, those
arguments have no merit.
F
Defendants contend
“[t]he expert opinion offered here was about the generalities of gang behavior
and was without substantive foundation in the facts of this case” and thus was
“not a proper basis for a gang finding or conviction.” Just which of Officer Fellows’s opinions
defendants intend to challenge by this argument is not clear, because they do
not say. Nevertheless, we believe the
discussion above adequately shows that to the extent defendants’ convictions
for the offense of criminal street gang activity were premised on Officer
Fellows’s opinions, those opinions were, in fact, rooted in the evidence of
this case and not merely based on “the generalities of gang behavior.” For this reason, defendants’ argument is
without merit. The evidence was
sufficient to support their convictions for violating section 186.22,
subdivision (a).
IV
Austen contends
there is insufficient evidence to support the great bodily injury enhancements
as to counts 2 through 5, 8, and 12.
Specifically, he contends there was no evidence he personally inflicted
great bodily injury on Keating. Austen
is mistaken, both as to the counts on which the jury found the great bodily
injury enhancement true and as to whether there was evidence he personally
inflicted such injury.
As to Austen, the
jury found the great bodily injury enhancement allegations true only as to the
charges of assault with the fire extinguisher (count 2), assault with the fire
extinguisher on a public transit employee (count 5), battery with serious
bodily injury (count 8), and criminal street gang activity (count 12).
As for the
evidence supporting those findings, Austen contends “no substantial evidence
ever identified [him] as one of the participants in the group beating of
Keating” and “[a]t most the evidence showed [he] personally threw a rock and
personally demanded Keating’s wallet and/or cell phone.” (Italics omitted.) But Austen ignores evidence that he
personally struck Keating twice with the fire extinguisher. In a statement to the police that was admitted
into evidence, C. S. said Austen grabbed the fire extinguisher, came up behind
Keating, and struck him twice in the head with it. C. S. testified similarly at trial. This evidence was sufficient to support the
great bodily injury enhancement as to counts 2, 5, and 12. (We discuss count 8 separately hereafter.)
V
Accomplice
Austen and
Pauliton contend the trial court erred in failing to instruct the jury that C.
S. was an accomplice and thus her testimony required corroboration. Austen contends the error was prejudicial
because only the testimony of C. S. established that he was part of the
assault, as Keating identified Austen “only as to the attempted robbery.” We find no error.
“A conviction
cannot be had upon the testimony of an accomplice unless it be corroborated by
such other evidence as shall tend to connect the defendant with the commission
of the offense; and the corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is
liable to prosecution for the identical offense charged against the defendant
on trial in the cause in which the testimony of the accomplice is given.” (§ 1111.)
“‘“[W]henever the
testimony given upon the trial is sufficient to warrant the conclusion upon the
part of the jury that a witness implicating a defendant was an accomplice,”’
the trial court must instruct the jury, sua sponte, to determine whether the
witness was an accomplice. [Citation.] If the testimony establishes that the witness
was an accomplice as a matter of law, the jury must be so instructed. [Citation.]
In either case, the trial court also must instruct the jury, sua
sponte, ‘(1) that the testimony of the accomplice witness is to be viewed with
distrust [citations], and (2) that the defendant cannot be convicted on the
basis of the accomplice’s testimony unless it is corroborated . . . .’” (People
v. Zapien (1993) 4 Cal.4th 929, 982.)
Here, the court
was not required to instruct on the law of accomplice testimony because there
was no evidence C. S. was an accomplice.
To be an accomplice, one must “‘act with knowledge of the criminal
purpose of the perpetrator and with an intent or purpose either of committing,
or of encouraging or facilitating commission of, the offense.’” (People
v. Stankewitz (1990) 51 Cal.3d 72, 90-91.)
In arguing C. S. was an accomplice, Austen and Pauliton do not cite any
evidence that would have supported a finding of the foregoing elements. Instead, they assert only in general terms,
without reference to any evidence, that C. S. “could have been charged as a
defendant under the prosecution’s aiding and abetting theory” and that she
“could have been another defendant.”
That is plainly not sufficient to carry their burden of demonstrating
trial court error on the issue of accomplice testimony.
VI
Defendants contend
their convictions on the charges of assault with a deadly weapon (counts 2, 3
and 4) must be reversed because the offense of assault with a deadly weapon is
a lesser included offense of assault with a deadly weapon on a public transit
employee, and thus counts 2, 3, and 4 were lesser included offenses of counts
5, 6 and 7. The People concede this
point.
Multiple
convictions cannot be based on necessarily included offenses. (People
v. Reed (2006) 38 Cal.4th 1224, 1227.)
“[I]f a crime cannot be committed without also necessarily committing a
lesser offense, the latter is a lesser included offense within the
former.” (People v. Lopez (1998) 19 Cal.4th 282, 288.)
The only
distinction between assault with a deadly weapon (§ 245, subd. (a)) and assault
with a deadly weapon on a public transit employee (§ 245.2) is the identity of
the victim. Both crimes require an
“assault with a deadly weapon or instrument” or “by any means likely to produce
great bodily injury.” (§§ 245, subd.
(a), 245.2.) Section 245.2 requires the
victim of the assault be a public transit employee, as specified in the
statute. Section 245, subdivision (a),
on the other hand, applies to an assault simply “upon the person of
another.” Just as “assault with a deadly
weapon upon a peace officer includes the lesser offenses of assault with a
deadly weapon as well as simple assault” (People
v. Hood (1969) 1 Cal.3d 444, 449), so too does assault with a deadly
weapon on a public transit employee include assault with a deadly weapon.
Because counts 2,
3, and 4 are lesser included offenses of counts 5, 6, and 7, defendants’
convictions on the latter offenses must be reversed.
VII
Defendants contend
the great bodily injury enhancement on the charge of battery with serious
bodily injury (count 8) must be stricken because great bodily injury is an
element of the offense. The People
concede the point.
Section 243,
subdivision (d) provides that when a battery is committed “and serious bodily
injury is inflicted,” the crime may be punished as either a misdemeanor or a felony. Subdivision (f)(4) of section 243 defines
“[s]erious bodily injury” as “a serious impairment of physical condition.” Section 12022.7, subdivision (a) provides a
three-year enhancement for the infliction of “great bodily injury” during
commission of a felony. For purposes of
the enhancement, “‘great bodily injury’ means a significant or substantial
physical injury.” (§ 12022.7, subd.
(f).) This enhancement “shall not apply
if infliction of great bodily injury is an element of the offense.” (§ 12022.7, subd. (g).)
“The terms
‘serious bodily injury’ and ‘great bodily injury’ have substantially the same
meaning . . . .”
title="">[7] (People
v. Hawkins (1993) 15 Cal.App.4th 1373, 1375.) The Hawkins
court concluded, “great bodily injury, as defined in section 12022.7, is an
element of the crime of battery under section 243, subdivision (d).” (Hawkins,
at p. 1376.) Because the enhancement is
an element of the offense, the enhancement cannot be imposed. (§ 12022.7, subd. (g).)
We recognize that
the court in In re Jose H. (2000) 77
Cal.App.4th 1090, 1096, affirmed a trial court’s refusal to strike a great
bodily injury enhancement in similar circumstances. We decline to follow Jose H., however, because the court there did not consider
subdivision (g) of section 12022.7, which clearly provides that the great
bodily injury enhancement “shall not
apply if infliction of great bodily injury is an element of the
offense.” (Italics added.) (Accord
527, 531 [disagreeing with Jose H.].) Thus, the great bodily injury enhancement on
the charge of battery with serious bodily injury (count 8) must be stricken.
VIII
Defendants contend
section 654 bars separate punishment for the crime of criminal street gang
activity and the underlying felonies used to prove the “felonious conduct”
element of that offense because the underlying felonies for which defendants
were already separately punished -- assault with a deadly weapon (the fire
extinguisher) and vandalism -- were the acts that transformed their membership
in a gang into the substantive gang activity offense. Based on our Supreme Court’s recent decision
in People v. Mesa,
In pertinent part,
subdivision (a) of section 654 provides that “[a]n act or omission that is
punishable in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more
than one provision.”
Under subdivision
(a) of section 186.22, it is a crime to actively participate in a criminal
street gang with knowledge that the gang’s members engage in or have engaged in
a pattern of criminal gang activity, and to willfully promote, further, or
assist in any felonious criminal conduct by members of the gang. Here, in instructing the jury on the
“felonious criminal conduct” element of the crime, the trial court instructed
that “[f]elonious criminal conduct means committing or attempting to commit any
of the following crimes: [¶] Attempted murder, assault with a deadly
weapon, battery with serious bodily injury, throwing missiles at the vehicle of
a common carrier, attempted robbery or vandalism.” Thus it is clear the charge of criminal
street gang activity was based -- at least as far as the “felonious criminal
conduct” element of that crime is concerned -- on the other felonies with which
defendants were charged arising from their attack on the train engineer and
their vandalism of the train.
In
that under circumstances such as these, section 654 bars the imposition of
additional punishment for the crime of criminal street gang activity. (See id.
at pp. 200-201.) In other words,
section 654 precludes defendants from being punished for the crime of criminal
street gang activity and for the underlying crimes they committed in attacking
the train engineer and vandalizing the train.
Accordingly, we will order their sentences for the gang crime be stayed.
IX
In 2008, the year
of defendants’ convictions, section 1465.8 required a court security fee of $20
be imposed on every conviction for a criminal offense. (Stats. 2007, ch. 302, § 18.) The Legislature intended to impose the fee on
all convictions after the statute’s operative date.
v. Alford (2007) 42 Cal.4th 749, 754.)
The abstracts of
judgment indicate a court security fee of $280 for Austen, $260 for Pauliton, and
$280 for Bonge. Bonge contends the
amount of his fee is incorrect because he was convicted of only 12 counts,
having been acquitted of attempted murder and attempted voluntary manslaughter
(count 1) and attempted robbery (count 9).
Since we reverse the three convictions for assault with a deadly weapon
as to all defendants, the amount of the fee must be corrected for all
defendants. The People properly concede
a correction in the amount of the fee is appropriate.
The proper amount
of the court security fee is $220 for Austen ($20 times 11 convictions), $200
for Pauliton ($20 times 10 convictions), and $180 for Bonge ($20 times 9
convictions). We order the abstracts of
judgment amended accordingly.
DISPOSITION
The convictions
for assault with a deadly weapon (counts 2, 3, and 4) and the great bodily
injury enhancements on the conviction for battery with serious bodily injury
(count 8) are reversed, and the sentences for criminal street gang activity
(count 12) are stayed pursuant to section 654.
The amount of the court security fee is corrected as follows: Austen Nunes, $220; Pauliton Nunes, $200; and
Daniel Bonge, $180. In all other
respects, the judgments are affirmed.
The trial court is directed to prepare amended abstracts of judgment
showing these changes and to forward certified copies to the
Rehabilitation.
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
DUARTE , J.
name="_ftn1" title="">[1] Because
they have the same last name, we refer to Austen and Pauliton Nunes by their
first names. We will refer to all three
defendants collectively as defendants.
name="_ftn2" title="">[2] Further
unspecified section references are to the Penal Code.
