P. v. Monarque
Filed 1/16/13 P.
v. Monarque CA2/5
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANKIE
MONARQUE,
Defendant and Appellant.
B239048
(Los Angeles County
Super. Ct. No.
KA091657)
APPEAL
from a judgment of the Superior Court of
County.
Tia Fisher, Judge. Affirmed.
Deborah
L. Hawkins, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and
Esther P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
_______________
After
jury trial, appellant Frankie Monarque was convicted of the
crime was committed for the benefit of a street gang (Pen. Code, § 186.22,
subd. (b)(4)) and an allegation that appellant personally and intentionally
used a handgun and caused great bodily injury and death. (Pen. Code, § 12022.53, subds. (b), (c) &
(d).) Appellant admitted having suffered
the prior convictions alleged in the information, and was sentenced to a total
of 80 years to life in state prison. This appeal followed. We affirm.
Standard
of Review
The
sole issue on appeal is the sufficiency of the evidence for the gang
enhancement, which applies to "Any person who is 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, . . ." (Pen. Code, § 186.22, subd. (b)(4).)
"In
considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence -- that is,
evidence that is reasonable, credible, and of solid value -- from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the
trier of fact's findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding. [Citation.] 'A reviewing court neither reweighs evidence
nor reevaluates a witness's credibility.'
[Citation.]" (
59-60.)
Facts
The
relevant facts are these: On July 25, 2009, appellant shot Payan multiple times, while Payan sat in his
car. Payan died of gunshot wounds.
Appellant
was an influential member of the Eastside Bolen Parque gang, in Baldwin Park. Angel Quintana, who was with appellant when
he shot Payan, was also a member of that gang, as was Payan. A few months earlier, Payan had been
"jumped" by appellant and several other men.
Marilyn
Aranda, mother of Payan's two children, testified that Payan and appellant's
brother, Jake Monarque, had committed robberies together, that
in 2006, "they got caught," that
Jake Monarque (but not Payan) served prison time, and that in juvenile hall,
Payan did not "back up his gang."
Aranda
also testified that Payan sold marijuana to his friends. Appellant sought to elicit testimony that
Payan had bragged that he did not pay taxes to the gang, but even after Aranda
had an opportunity to refresh her recollection with the police report, she did
not remember saying that to the police.
After
appellant was arrested in this case, a deputy sheriff posing as an inmate was
placed in his cell. Appellant told the
officer that he had shot "one of his friends," "over family
shit." He also said that the victim
had "disrespected a lot of people," "fucked with the wrong
party," and "disrespected himself," and that the shooting was
over "clavo," which meant drugs.
Appellant said that he had planned the crime and discussed it with his
homies.
A
gang expert, Detective Esteban Mendez of the Baldwin Park Police Department,
testified, inter alia, that respect is the most important part of gang
culture. Gang members earn respect by
creating an atmosphere of fear and intimidation in the community and with other
gang members. If a gang member is
disrespected, even by another gang member, he must act on it "from assault
up to murder." A gang member can
disrespect the gang by providing information to law enforcement or by selling
drugs in another gang member's territory without paying a tax to the gang,
because profit from drug sales is important to a gang. A gang member who did not follow the rules
could be assaulted or killed. Further,
when two gang members commit a crime, and only one is convicted, the gang will
suspect that the other gang member cooperated with the police.
Detective
Mendez testified that "If you disrespect a . . . gang member's family,
it's no longer personal. It stems from a
personal matter but you get the gang involved by disrespecting that gang
member's family, you're disrespecting that gang member. He has to act on it."
On
cross-examination, Detective Mendez testified that a gang member who had been
disciplined for an offense was not normally disciplined again for the same
offense.
Discussion
Appellant's
contention is that there was insufficient evidence that the crime was committed
"for the benefit" of his gang.
He argues that the evidence in this case showed that the motivation was
personal, not gang-related. He cites the
evidence that he told the undercover officer that he shot Payan over
"family shit," and the evidence that Payan did not serve prison time
for the robberies he committed with Jake Monarque.
Appellant
argues that the only evidence that this crime was for the benefit of the gang
was the expert opinion, based on gang culture in general and not on the facts
of this case. In reliance on
650, People v. Ramon (2009) 175
Cal.App.4th 843, and In re Frank S.
(2006) 141 Cal.App.4th 1192, appellant argues that a gang expert's testimony
alone is insufficient to find an offense gang related, but that additional
substantial evidence is required.
There
was ample evidence here. Payan had
avoided prison time for crimes committed by the brother of an influential gang
member, raising a suspicion that he had cooperated with the police. This was, according to expert testimony,
disrespect of the gang member and thus the gang, punishable with murder. It is true that, as appellant argues, he told
the undercover officer that the shooting was over family matters, but given the
expert testimony that disrespect of a gang's family member is disrespect of the
gang, the testimony does not compel another result here. "If the circumstances reasonably justify
the trier of fact's findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding." (People v. Albillar, supra, 51 Cal.4th at p. 60.)
Appellant
also makes arguments based on his statement to the undercover officer that the
killing was over drugs. He argues that
the incident several months prior to the murder was punishment by the gang for
failure to pay taxes on drug sales, and cites the expert testimony that a gang
member will usually be punished only once for a rule infraction. However, as respondent argues, there is no
evidence that the earlier beating was over drugs. Indeed, given the expert evidence concerning
a gang's control over drug sales in its area, any evidence that Payan was
dealing drugs without paying the gang supports the jury's finding on the gang
enhancement.
Disposition
The
judgment is affirmed.
OFFICIAL REPORTS
ARMSTRONG,
J.
We concur:
TURNER, P. J.
MOSK, J.
