P. v. Ulloa
Filed 5/20/13 P. v. Ulloa CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JAVIER MANUEL ULLOA,
Defendant and Appellant.
B242104
(Los Angeles County
Super. Ct. No. BA361536)
APPEAL from a judgment of
the Superior Court of
County, Rand S. Rubin, Judge.
Affirmed.
Linn Davis, 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,
Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy
Attorneys General, for Plaintiff and Respondent.
Appellant
Javier Manuel Ulloa contends substantial
evidence does not support the jury’s true finding that the offenses of
which he was convicted -- shooting at an occupied vehicle and assault with a
firearm -- were committed for the benefit of, at the direction of, or in
association with a criminal street gang, with the specific intent to promote,
further and assist in criminal conduct by gang members within the meaning of
Penal Code section 186.22, subdivision (b)(1)(C). Specifically, he contends the prosecution
failed to present adequate evidence of the subject gang’s primary activities.
A. Information
Appellant was
charged by information with attempted willful, deliberate, premeditated murder
(§ 664/187(a)) (count one), shooting at an occupied vehicle (§ 246) (count
three), and assault with a firearm (§ 245, subd. (a)(2)) (count four).
committed for the benefit of, at the direction of, and in association with a
intent to promote, further and assist in criminal conduct by gang members
within the meaning of section 186.22, subdivision (b)(1)(C). It was also alleged that as to counts one and
three, appellant personally used a firearm, personally and intentionally
discharged a firearm, and personally and intentionally discharged a firearm
which caused great bodily injury within the meaning of section 12022.53,
subdivisions (b), (c), (d), and (e)(1) and that he personally inflicted great
bodily injury within the meaning of section 12022.7, subdivision (a).
B. Evidence
at Trial
1. Evidence
of the Offenses
title="">
On
August 20, 2009, Laval Adolph was driving on Avalon Boulevard near 79th Street.
While waiting at a stoplight, he noticed a gun pointing out the open
front window of a car to his right.
Adolph took evasive action, accelerating into oncoming traffic, but was
shot.
car, but recalled that he was Hispanic, with long hair.
Two police
officers who were patrolling nearby heard multiple gunshots and within seconds
saw a car speeding away from the area and executing a number of turns. The officers followed the car. When they activated their patrol vehicle’s
lights and siren, the car accelerated and drove through stop signs and a red
light with the officers in pursuit. The
suspects’ car stopped abruptly and four people got out. The officers got a good look at the driver, a
male Hispanic with long hair and a tattoo on his neck. They later identified appellant as the
driver. The officers chased and
apprehended one of the passengers, Christopher Edwards, who was holding a gun
when he exited the car.
name="_ftnref6" title="">[6] The suspects’ car was impounded and
investigating officers found documentation inside it indicating it had recently
been purchased by appellant.
After first
denying any knowledge of the shooting, Edwards told police officers -- and
later testified -- that the car was being driven by appellant when Adolph was
shot, while Edwards was sitting on the passenger side of the back seat. Edwards, then a member of Florencia 13, had
been picked up earlier in the day by appellant and his companions, a female and
a male member of Florencia 13 known as “Bullet.†Edwards recognized appellant as a senior
member of the same gang, who used the nickname “Yogi.†Appellant was a “shot-caller,†someone who
“whatever he says goes.†When the car
was traveling on Avalon Boulevard, appellant grabbed a gun from the
side of his seat and started shooting out the window toward another car. After the shooting, while they were being
chased by the police officers, appellant ordered Edwards to take the gun. He did, but dropped it as soon as he got out
of the car.
2. Gang
Evidence
Gang expert,
Officer Guillermo De La Riva, had been a police officer for four years. He had grown up in Santa Ana, and was familiar with the Hispanic
gangs in that area. He had had 60 hours
of training in gang awareness after becoming a police officer. In addition, he had attended conferences and
roll calls where senior officers lectured on Hispanic gangs. He also familiarized himself with gangs by
reading books written by gang members and talking to senior gang officers from
other cities. He had personally
interacted with more than 200 Florencia 13 members.
Officer De La
Riva testified that Florencia 13 has over 2000 members in Los Angeles County.
It is affiliated with the Mexican Mafia, also called “La Eme,†the
Spanish pronunciation of the letter “M†which is the 13th letter in the
alphabet. The affiliation means that
Florencia 13 pays “taxes†to the Mexican Mafia and that gang members obtain
protection from the Mexican Mafia when in prison. Florencia 13 has a hand sign and members use
“F13†and “FX3†to symbolize their membership.
Its rivals include the East Coast Crips and 18th Street, both African-American gangs. There were three cliques of Florencia 13 in
Officer De La Riva’s division: the
Neighborhoods, the Locos, and the West Side Florencias.
From conversations
with Florencia 13 gang members and fellow officers, Officer De La Riva learned
that appellant was a member of the gang and had heard no information from any
source that appellant had ever left the gang.
13’s Gangster clique, which operates out of Huntington Park.
Officer De La
Riva testified that gang members “put in work,†which in gang culture means
committing crimes to benefit the gang, such as attempted murder, shootings,
robberies, and “tagging†to mark the gang’s claimed territory. Other gang members look up to those who “put
in work†by committing crimes. The
prosecutor asked what type of crimes Florencia 13 gang members were known to
commit. Officer De La Riva
responded: “They’re known to commit
murder, shootings, both walk-ups and drive-bys, robberies, assaults, stabbings,
burglaries . . . .†The
prosecutor went on to ask specifically whether Florencia 13 members commit
“minor acts of vandalism,†“attempted murders, “narcotics possession,†and
“narcotics sales,†and Officer De La Riva responded in the affirmative. On cross-examination, Officer De La Riva
testified that lower ranked members or “wannabe’[s]†could elevate their status
by committing drive-by shootings.
name="_ftnref9" title="">[9]
The prosecutor
formed a hypothetical based on the evidence presented in the prosecution’s case
and asked Officer De La Riva for his opinion whether such a shooting was
committed for the benefit of the gang.
Officer De La Riva testified that even though the shooter did not shout
out the gang’s name, people in the neighborhood would learn what happened, and
word would spread that it was committed by the gang. This would enhance the gang’s status and
cause members of the community to fear it and fear retaliation if they reported
crimes its members committed. The fact
that the shooting was apparently unplanned and the victim was randomly selected
would elevate the status of the shooter for ruthlessness and cold-bloodedness. If the shooter was a member of a clique that
operated outside the area of the shooting, it would build up his status and
reputation in the cliques operating in the area where the crime was committed.
Officer De La
Riva also testified that a low ranking gang member could be “green lighted†if
he did not obey a directive from a more senior member to help conceal a crime,
and that a snitch would also be “green lighted,†which meant that he or she
could be murdered or assaulted.
C. Verdict
and Sentencing
The
jury found appellant not guilty of attempted murder (count one) and guilty of
with a firearm (counts three and four).
The jury found true all the firearm enhancements, the infliction of
great bodily injury enhancement and the gang enhancement. Appellant admitted three priors. The court sentenced him to a 20-year
determinate sentence, consisting of seven years for count three, plus ten years
for the gang enhancement and three years for the three priors. The court also imposed a consecutive 25-year
to life indeterminate sentence under section 12022.53, subdivision (d).
Section
186.22, subdivision (b)(1)(C), the gang allegation charged against appellant,
imposes additional punishment for “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.â€
“Criminal street gang†is defined as “‘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’ criminal
acts enumerated in subdivision (e) of the statute, and which has ‘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.’†(People v. Gardeley (1996) 14 Cal.4th 605, 616, quoting § 186.22,
subd. (f), italics deleted, fn. omitted.)
Appellant contends the jury’s true finding with respect to the gang
enhancement was unsupported because the prosecution presented insufficient
evidence that one of Florencia 13’s primary activities was the commission of
criminal acts enumerated in subdivision (e) of section 186.22.
“‘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. [Citations.]’ [Citation.]â€
(People v. Ochoa (1993) 6
Cal.4th 1199, 1206.)
As explained
in People v. Sengpadychith (2001) 26
Cal.4th 316, “[t]he phrase ‘primary activities[]’ . . . implies that the
commission of one or more of the statutorily enumerated crimes is one of the
group’s ‘chief’ or ‘principal’ occupations,†and serves to exclude from the
definition of “gang†social and political groups whose members occasionally
violate the law, such as an environmental group whose members periodically
engage in civil disobedience. (
that a gang’s primary activities included commission of the necessary criminal
offenses could be derived from “evidence that the group’s members consistently
and repeatedly have committed criminal activity listed in the gang
statute.†(Id. at p. 324, italics omitted.)
It further noted that “‘either prior conduct or acts committed at the
time of the charged offenses can be used to establish the “primary activitiesâ€
element of the gang enhancement.’†(
1448, 1465 [“Past offenses, as well as the circumstances of the charged crime,
have some tendency in reason to prove the group’s primary activities, and thus
both may be considered by the jury on the issue of the group’s primary
activities. [Citation.]â€].)
Substantial
evidence established that a primary activity of Florencia 13 was the commission
of criminal offenses specified in section 186.22, subdivision (e). Officer De La Riva testified that members were
known to commit murder, attempted murder, robberies, assaults, burglaries,
vandalism, and narcotics sales, all of which are enumerated offenses. Although he did not expressly state that
these were its primary activities, his testimony with respect to “putting in
work†made that clear. He stated that
Florencia 13 members committed crimes to benefit the gang, and that gang
members look up to those who “put in work†by committing crimes such as
attempted murder, shootings, and robbery.
When he discussed the benefits to the gang from the instant shooting, he
stated that such shootings elevate the gang’s status and “allow[] them to do
crimes in [their claimed] area without having law enforcement be
involved.†He also testified in response
to defense counsel’s questioning that lower ranked members of Florencia 13
could elevate their status by committing a violent crime such as a drive-by
shooting. In addition, he stated that
Florencia 13 was affiliated with the Mexican Mafia, which assisted its members
when they were imprisoned. He further
explained that Florencia 13’s rivals tended to be African-American gangs and
described two instances when gang members had shot African-American men. Viewed as a whole, the evidence supported a
reasonable conclusion that Florencia 13 existed for the primary purpose of
engaging in criminal conduct of the type specified in the statute and
protecting its members from the consequences of such criminal activity.
Appellant’s
reliance on In re Alexander L. (2007)
149 Cal.App.4th 605 is misplaced. There,
the prosecution’s gang expert testified that the subject gang “‘committed quite
a few assaults with a deadly weapon, several assaults,’†and had been
“‘involved in murders’†and “‘auto thefts, auto/vehicle burglaries, felony
graffiti, narcotic violations.’†(
insufficient to establish the gang enhancement, both because the expert
acknowledged on cross-examination that the “vast majority†of cases connected
to the gang were “graffiti related,†and because his testimony lacked an
adequate foundation: “[i]t is impossible
to tell whether his claimed knowledge of the gang’s activities [was] based on
highly reliable sources, such as court records of convictions, or entirely
unreliable hearsay.†(
Unlike the
expert in Alexander L., Officer De La
Riva provided sufficient background information concerning his training and the
sources of his information about Florencia 13 to support the reliability of his
opinions and conclusions. The officer
testified that he received specific training on gangs, attended lectures by
senior officers, had contact with over 200 Florencia 13 members, read books
written by gang members, and talked to senior gang officers from other cities,
as well as officers involved in investigating the predicate crimes committed by
Florencia 13 members. This was
sufficient to establish the foundation for his testimony concerning the gang’s
criminal activities.
name="_ftnref12" title="">[12] (See People
v. Duran, supra, 97 Cal.App.4th at p. 1465 [“The testimony of a gang
expert, founded on his or her conversations with gang members, personal
investigation of crimes committed by gang members, and information obtained
from colleagues in his or her own and other law enforcement agencies, may be
sufficient to prove a gang's primary activities.â€]; People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [officer’s
eight years dealing with subject gang, including investigations and personal
conversations with members and reviews of reports, sufficed to establish
foundation for his testimony].) In
short, substantial evidence supported the jury’s finding on the gang
enhancement.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA,
J.
We
concur:
WILLHITE,
Acting P. J.
SUZUKAWA,
J.
Unless otherwise designated,
statutory references are to the Penal Code.
Count two, for felony evading
(Veh. Code, § 2800.2, subd. (a)), was dismissed.
