P. v. Gray
Filed 3/20/13 P. v. Gray CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
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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.
LATAZ GRAY,
Defendant and Appellant.
B234579
(Los Angeles
County
Super. Ct.
No. BA366644)
APPEAL from
a judgment of the Superior Court
of
County, Michael D. Carter, Judge. Affirmed in part, reversed in part.
Suzann E.
Papagoda, 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, Susan Sullivan Pithey and
David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
>
Defendant Lataz Gray appeals from
his conviction of second degree robbery
(Pen. Code, § 211
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of a criminal street gang (§ 186.22, subd. (b)(1)).
state prison term of 13 years. Defendant contends the gang enhancement is
not supported by substantial evidence.
We agree and reverse the enhancement finding.
FACTUAL AND
PROCEDURAL BACKGROUND
It is undisputed that defendant, an
admitted member of the Black P-Stones gang, robbed Arthur Perdue (Perdue) on
August 18, 2009. The People’s theory was
that it was a gang-related crime in retaliation for Perdue having expressed his
lack of respect for defendant and his gang.
The defense theory was that the robbery was for solely personal gain and
not gang-related.
A. Prosecution
On the afternoon of August 18, 2009, Perdue was sitting in his car with his
seven-year-old son, who was playing on the car floor. Perdue was parked on 13th Avenue near the intersection with 25th Street in Los Angeles, an area controlled by the
local Blood gang, the Black P-Stones. He
was waiting for someone to come and repair his car. Outside of his T-shirt, Perdue was wearing a
medallion on a long chain. The medallion
consisted of a dollar coin surrounded by gold and diamonds. Perdue got out of his car and was approached
by defendant, who had a “CK†tattoo on his face.
Perdue was approximately 48 years
old.
title="">[4] As a former member of the Black P-Stones,
Perdue recognized defendant’s tattoo as meaning “Crip Killer.†The Crips were a rival gang of the Bloods.
Defendant came up and asked Perdue,
“What’s up, Blood?†which, Perdue testified, was intended to ensure the person
being asked was either a member or a former member of the same gang and not a
member of a rival gang. Perdue
responded, “What’s happening, Blood?†At
some point Perdue also said to defendant, “Been there, done that.†Defendant then asked if Perdue knew where to
get some marijuana. Perdue said he did
not use marijuana, but defendant could ask the car repair person when he
arrived.
Perdue started to feel uneasy about
defendant and decided to leave. When
Perdue turned to put his son back into the car seat, defendant snatched
Perdue’s chain and fled. Perdue got into
the car and drove with his son to a nearby pawnshop, but the chain was not
there.
Following defendant’s arrest, an
officer advised him of his rights to
remain silent, to the presence of an attorney, and, if indigent, to appointed counsel (Miranda
v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), which
defendant waived, admitted his gang membership and the theft of Perdue’s
chain. Defendant said he took the chain
because he and Perdue had an argument, and then defendant pawned it. Defendant told the officer he did not know
Perdue or of Perdue’s affiliation with the Black P-Stones. Defendant explained: “I don’t even know who the fuck he was. Maybe he’s just a random. I mean, I seen his face. (Inaudible.)
Maybe he’s (inaudible). He’d get
in. He’[d] be like a dog-whoo. Like.
He’d get in. (Inaudible.) He’d be like, ‘Where you from?’ (inaudible). Whoopty-whoo.
(Inaudible.) Like what you mean
little nigga would be best if I get on your (inaudible). Fucked up.
(Inaudible.) We started having
words and shit what happened was (inaudible).â€
“Basically, I don’t know bloodstreams, but that’s what I’m saying.â€
Los Angeles Police Officer Kenneth
Sanchez testified as a gang expert for the People. After detailing his background, training and
experience, Officer Sanchez testified concerning the history, culture and
territory of the Black P-Stones, a set or clique of the Blood gang, and
described its rivalry with Crip gangs.
Officer Sanchez also explained the tattoos and gang signs typically
displayed by Black P-Stones and their preferred attire.
The primary activities of the gang
were robberies, burglaries, homicides, carjackings, extortions, thefts, and
narcotics and illegal weapons possession.
Thefts committed by gang members were one of the quickest ways to
generate money for gang parties, drugs and weapons. The thief would receive a percentage of the
proceeds and the rest would go to the gang.
According to Officer Sanchez, younger gang members enhanced their
reputation and elevated their status among older gang members by committing
thefts, or “putting in work,†to bring in money for the gang and instill fear
of the gang in the community.
Defendant used the moniker “Big
Hoss†or “Big Hog†and had various tattoos that signified his membership in the
Black P-Stones. Officer Sanchez
testified Perdue was an “OG†or older gangster, who helped start the Black
P-Stones gang, although in 2009, Perdue was no longer an active member.
Officer Sanchez testified, based on
a hypothetical that tracked the facts of this case, that the robbery was
committed for the benefit of the gang.
He explained the significance of the verbal exchange between the thief
and the victim. In approaching the
victim, the thief conveyed only that he was affiliated with a Blood gang,
without revealing his Black P-Stones clique because “that would give him
up.†When the victim responded in kind,
similarly omitting his membership in a specific Blood clique, the victim
demonstrated a lack of respect for the local Blood clique, the Black
P-Stones. Officer Sanchez also based his
opinion on the type of crime, theft being a ready source of money for the gang,
and on the brazenness of the crime, committed during daylight hours, which
demonstrated the thief’s disrespect for the law and his fearlessness of
potential witnesses. According to
Officer Sanchez, all of these factors elevated the thief’s status within the
gang. On cross examination, Officer
Sanchez testified that within the gang culture, a younger gang member would
take an older gang member’s chain without permission if he believed the older
gang member disrespected him in some way, although the theft would be contrary
to gang hierarchy.
B. Defense
Defendant testified in his own
defense. Defendant admitted he was an
active member of the Black P-Stones gang, and that he took Perdue’s chain. However, defendant testified he committed the
theft exclusively for his own benefit, not for the benefit of the gang. When defendant asked where Perdue was from,
Perdue replied, “something like been there, done that,†without answering
defendant’s question. Defendant did not
know who Perdue was at the time.
Defendant later learned he had stolen from a founding member of the
Black P-Stones, for which defendant was disciplined. After taking the chain, defendant pawned it
for $800 and used the money to buy clothes and shoes. Defendant did not turn over any of the money
to the gang or tell fellow gang members about the theft, which defendant was
not obligated to do if he committed the theft on his own.
DISCUSSION
Defendant challenges the sufficiency
of the evidence to support the gang enhancement. We agree, finding the evidence was
insufficient to satisfy the specific intent element of section 186.22,
subdivision (b)(1).
A. Standard
of Review
In assessing the sufficiency of
evidence to support a gang enhancement, we review the entire record in the
light most favorable to the judgment, to determine whether reasonable and
credible evidence exists to support the decision of the trier of fact. (People
v. Albillar (2010) 51 Cal.4th 47, 59-60.)
B. Section
186.22, Subdivision (b)(1), Gang Enhancement
Section 186.22 is “a provision of
the California Street Terrorism Enforcement and Prevention Act of 1988, also
known as the STEP Act.†(
743, 744-745.) When the charged offenses
occurred in 2009, the statute read in part as follows: “(a) 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 . . . . [¶]
(b)(1) . . . [A]ny 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, shall, upon conviction of that felony, [be punished] in addition
and consecutive to the punishment prescribed for the felony or attempted felony
of which he or she has been convicted . . . .â€
Violation of section 186.22,
subdivision (a), is a substantive offense, the gravamen of which is
participation in the gang itself. (
432, 436.) Violation of subdivision
(b)(1) results in an enhanced sentence.
The scienter element of the substantive offense and the enhancement are
essentially the same: intent to promote, further, or assist in
members. The enhancement has the
additional element that the crime to which the enhancement is attached must be
gang-related. (People v. Galvez (2011) 195 Cal.App.4th 1253, 1260; see also
street gang enhancement and substantive offense].) Thus, for the enhancement to be found true,
two prongs must be met. First, there
must be evidence from which it is reasonable to infer that the underlying
felony was “‘committed for the benefit of, at the direction of, or in association
with any criminal street gang.’†Second,
there must be evidence that the defendant had “‘the specific intent to promote,
further, or assist in any criminal conduct’†by gang members. (People
v. Gardeley (1996) 14 Cal.4th at
605, 615-616, italics omitted.)
1. For the Benefit
of Any Criminal Street
The first prong, requiring evidence
from which it can reasonably be inferred the underlying felony was
gang-related, can be satisfied by expert testimony. “Expert opinion that particular criminal
conduct benefited a gang by enhancing its reputation for viciousness can be
sufficient to raise the inference that the conduct was ‘committed for the
benefit of . . . a[] criminal street gang’ within the meaning of
section 186.22[, subdivision ](b)(1).†(
Cal.4th at p. 63; People v. Vang
(2011) 52 Cal.4th 1038, 1048; People
v. Vazquez (2009) 178 Cal.App.4th 347, 354 [relying on expert opinion that
the murder of a non-gang member benefited the gang because “violent crimes like
murder elevate the status of the gang within gang culture and intimidate
neighborhood residents who are, as a result, ‘fearful to come forward, assist
law enforcement, testify in court, or even report crimes that they’re victims
of for fear that they may be the gang’s next victim or at least retaliated on
by that gang’â€].)
Here, the jury could have reasonably
inferred that defendant’s crime benefited a criminal street gang. The evidence showed defendant was a member of
the Black P-Stones gang when he committed the robbery, and the gang expert
testified that such crimes benefitted the gang financially, enhanced a gang
member’s standing within the gang and terrorized the community on behalf of the
gang. Thus, the “benefit of†prong of
the enhancement was supported by sufficient evidence.
2. Specific Intent
to Promote/Further/Assist
To meet the second prong, there must
be evidence from which it is reasonable to infer the defendant committed the
underlying offense “with the specific intent to promote, further, or assist in
any criminal conduct by gang members.â€
(§ 186.22, subd. (b)(1); People
v. Albillar, supra, 51 Cal.4th at p. 64.)
“In common usage, ‘promote’ means to contribute to the progress or
growth of; ‘further’ means to help the progress of; and ‘assist’ means to give
aid or support. (Webster’s New College
Dict. (1995) pp. 885, 454, 68.)†(
(a)].)
While the first prong was satisfied,
we find the evidence was insufficient that in committing the robbery defendant
specifically intended to benefit anyone other than himself. The case of People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon) supports our decision.
Ramon analyzed the sufficiency
of the evidence on the specific intent prong of gang enhancement findings and
found it wanting. 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. (Id.
at pp. 846-847.) Officers discovered a
loaded, unregistered firearm under the driver’s seat. (Id.
at p. 847.) The People charged the
defendant 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. (
At trial, a gang expert testified
that one of the gang’s primary activities was car theft. (Ramon,
supra, 175 Cal.App.4th at p.
847.) The expert opined that by driving
a stolen vehicle and bearing an unregistered firearm within his gang’s
territory, the defendant could conduct numerous crimes and simply dump 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. The jury convicted the defendant of
all the substantive counts and found true three of the four gang enhancement
allegations. (Ibid.)
The appellate court vacated the gang
enhancements, concluding the only “evidence†supporting an inference the
defendant committed the instant crimes with the specific intent to promote,
further, or assist criminal conduct by gang members was the expert witness’s
impermissible speculation as to the defendant’s motive in committing the
crimes, noting, “[t]here were no facts from which the expert could discern
whether [the defendant and his compatriot] were acting on their own behalf the
night they were arrested or were acting on behalf of [their gang].†(Ramon,
supra, 175 Cal.App.4th at
p. 851.)
As in Ramon, apart from the gang expert’s testimony, there was no evidence
offered by the prosecution from which a reasonable jury could infer the
requisite intent. (See also
650, 661-662 [nothing in the circumstances of the carjacking sustained the
expert witness’s inference that it was gang related].) Defendant approached Perdue, impliedly
identified himself as a gang member, became angry at Perdue’s responses and
grabbed Perdue’s chain and fled. Nothing
in these facts suggest defendant was acting “to promote, further, or assist in
any criminal conduct by gang members†under section 186.22, subdivision
(b)(1). (In re Frank S. (2006)
141Cal.App.4th 1192, 1199 [“To allow the expert to state the minor’s specific
intent . . . 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.â€].) While defendant’s self-identification as a
gang member at the outset of the encounter makes it possible to connect his
ensuing robbery to his gang, a mere possibility is nothing more than
speculation, which is not substantial evidence.
(Ramon, supra, 175 Cal.App.4th
at p. 851.) The prosecution did not
introduce any evidence that this kind of robbery was a distinctively gang robbery
or a “signature crime†perpetrated by defendant’s gang (see
at p. 662), or that it was never committed by gang members for personal
benefit. Nor was there evidence that any
of the proceeds from the robbery were distributed to defendant’s gang, that
defendant’s participation in the robbery was communicated to his fellow gang
members, or that his gang’s connection to the crimes was circulated within the
surrounding community. Thus, there was
insufficient evidence to support the section 186.22, subdivision (b)(1),
enhancement.
DISPOSTION
The section 186.22, subdivision
(b)(1), gang enhancement is ordered reversed and stricken. In all other respects, the judgment is
affirmed.
JACKSON,
J.
We concur:
PERLUSS,
P. J.
WOODS,
J.
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All
further statutory references are to the Penal Code.
name="_ftn2" title="">
old at the time of the offenses. He was
tried as an adult, having also been charged in this case with attempted
murder and shooting at an occupied motor vehicle, of which he was
acquitted.
