P. v. Mora

 

 

 

 

 

 

 

 

 

Filed 9/9/13  P. v. Mora CA4/2

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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>

 

FOURTH
APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

THE PEOPLE,               Plaintiff and Respondent,   v.   CESAR ALBERT MORA,               Defendant and Appellant.

E055696               (Super.Ct.No. RIF146010)               O P I N I O N

 

            APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside County.  Helios (Joe) Hernandez, Judge.  Affirmed.

            Siri
Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Gary W. Brozio and
Ifeolu E. Hassan, Deputy Attorneys General, for Plaintiff and Respondent.

I.  INTRODUCTION

            A
jury found defendant Cesar Albert Mora guilty of assault with a deadly weapon,
a knife, active participation in a criminal
street gang, and possession of a shank while in custody.  The jury also found a gang enhancement true
on the assault conviction and in a separate trial found defendant had three
prior serious felony convictions, three prior strikes, and three prison
priors.  Defendant was sentenced to 58
years to life, including 25 years to life for the assault conviction plus five
years for the gang enhancement on the assault conviction.  A 25-year-to-life term was imposed but stayed
on the active gang participation conviction. 


On this appeal, defendant claims
the evidence is insufficient to support his active gang participation
conviction and the gang enhancement on his assault conviction.  Regarding the active gang participation
conviction, he argues no rational fact finder could have concluded the Black
Angels was a criminal street gang because the prosecution’s gang expert did not
testify, and no other evidence showed, that the primary activities of the Black
Angels consisted of criminal acts listed in Penal Code section 186.22,
subdivision (e).href="#_ftn1"
name="_ftnref1" title="">^[1]  Regarding the gang enhancement on the assault
conviction, he argues no rational fact finder could have found he committed the
assault for the benefit of, at the direction of, or in association with the
Black Angels, because the evidence showed only that he stabbed the victim in a
fight at a party.  We reject these claims
and affirm. 

II.  RELEVANT BACKGROUND

A.  >Prosecution Evidence

1.  The Stabbing at
the Party

On the evening of September
28, 2008, Carlos Arechiga hosted a birthday party by invitation only
in the backyard of his Mira Loma home. 
Around 30 guests were invited, and they were dressed “nicely” in black
and white.  All of the guests were either
friends of Carlos or members of his family. 
The guests included Alejandro Alcaraz, Aldo Sanchez, Rolando Sanchez,
Arnold Arechiga, and Jovan Garcia.  The
backyard was well lit, and the guests came to the party through a side
gate. 

Around 10:00 p.m., uninvited
people began to show up.  A “wave” of
five or six uninvited people arrived first, then “they started coming in with
girls and more younger guys started coming in.” 
They stood out because none of them were dressed for the party.  Eventually, between 12 and 15 uninvited people
showed up and at that point Carlos began to get “more worried.”  The uninvited people included defendant,
Esteban Hernandez, and Armando Ledesma. 

Around 1:00 a.m., some of the
uninvited men were disrespectful towards Carlos’s sisters.  In response, Carlos approached one of them
and asked, “[W]ho invited you guys?”  A
crowd began to gather.  The man did not
respond, but simply looked behind Carlos as “if he was waiting for somebody to
come.”  Then, Hernandez aggressively
pushed through the crowd until he was face-to-face with Carlos.  Hernandez had “BA” tattooed on the back of
his head.

From the way Hernandez “barged in,” Alcaraz “knew nothing
good was going to come out of it,” so he grabbed Hernandez from behind by the
shoulders.  At the same time, Aldo grabbed
Hernandez from the front by his arm.  As
Alcaraz tried to push Hernandez away from Carlos, Alcaraz and Hernandez fell to
the ground, and Hernandez “sliced” Alcaraz in the side and in the jaw with a
box cutter.  Around the time Alcaraz
grabbed Hernandez, “the commotion started happening.” 

Aldo began to pull Hernandez off Alcaraz, but then he pulled
back to look around for his girlfriend. 
As he looked around, he saw his brother Rolando running after defendant
and two other men.  Rolando tripped and
fell, bringing one of the other two men down with him.  Aldo ran over and began fighting with
defendant and the other man until they ran out of the backyard.  During this fight, defendant sliced Aldo in
the left shoulder and back of the neck with a knife or box cutter. 

Eventually, defendant, Hernandez, Ledesma, and the other
uninvited people were forced out of the backyard.  Hernandez turned around and threw objects
towards the house, and Ledesma threw beer bottles.  Hernandez, Ledesma, and defendant left
together in a black car.

After the men left, Garcia found defendant’s wallet,
including his identification, and his cell phone in the driveway near the side
gate to the backyard of the Arechiga residence. 
A knife was also found near where defendant and Aldo had been
fighting.  The police were called and
Deputy Arturo Mendez and other officers were dispatched to the Arechiga
residence about 1:15 a.m.  At the residence, Deputy Mendez took
possession of defendant’s wallet and identification.

Around 3:30 a.m., and after the
officers had left the Arechiga residence, defendant returned, looking for his
wallet and cell phone.  Carlos came
outside and spoke to defendant. 
Defendant told Carlos he only wanted his wallet and did not have any
problems with them.  After telling
defendant to “hold on,” Carlos went inside and called the police again.  When he came back outside, officers were
already in the area.  Deputy Mendez was
in his patrol vehicle in front of the Arechiga residence when he saw a black
Saturn speed past him.  As he followed
the car and called for additional units, defendant opened the passenger door
and ran away, disregarding the deputy’s order to stop.  A search team found defendant hiding under a
tarp in the backyard of a Mira Loma home. 


2.  Gang
Expert Testimony

Ontario Police Officer Brice Devey testified as an expert on
Ontario-based criminal street gangs.  He
had served as lead investigator in over 50 gang investigations and had
participated in over 100.  On a daily
basis, he spoke with other gang investigators concerning the crimes they were
investigating and their contacts with gang members.  He had personally spoken with over 200 gang
members, including members of the Black Angels. 


At the time of the party in September 2008, “Southside Onterio”
was the largest gang in Ontario with around
200 members, including over 40 “Black Angels.” 
There are three tiers within the gang. 
The first tier, the Onterio Varrio Sur or “OVS,” generally consists of
younger gang members who commit smaller crimes like theft and vandalism.  Generally, when an OVS member “puts in work”
by committing more serious crimes like stabbings, shootings, and selling drugs,
he is promoted to the second tier, the Junior Black Angels.  The third and highest tier, the Black Angels,
is reserved for the most hard core gang members. 

Officer Devey opined that defendant and Hernandez were
active members of the Black Angels, and Ledesma was a member of the OVS.  Ledesma had several gang-related notations on
his MySpace page.  Defendant and
Hernandez had multiple gang-related tattoos; Hernandez had a “B” and an “A”
tattooed on his head, and defendant had “OBA” tattooed on his neck.  According to Officer Devey, a person cannot
place an “OBA” tattoo on his body without serious repercussions from the gang
unless they belong to the gang.

To remain in good standing with the gang, all Southside
Onterio members must gain respect and demonstrate loyalty.  When a member commits a crime, he gains
respect because he has increased the gang’s notoriety.  The more violent the crime, the greater the
increase in respect.  Committing crimes
also demonstrates loyalty because it shows members are “willing to give
whatever it takes” for the gang.  Loyalty
also requires that gang members help each other in fights.  If a gang member starts a fight and another
gang member does not help in the fight, it indicates a “huge level of
disrespect and coward[ice].”  Additional
details of Officer Devey’s testimony is discussed below. 

B.  Defense Evidence

            Numerous
witnesses, including defendant, testified for the defense.  The defense claimed defendant did not fight
with anyone at the party or stab Aldo; he was misidentified.  A neighbor invited him to the party and he
attended for the purpose of meeting women and socializing.  He returned to the party to retrieve his
wallet and cell phone, and jumped out of Ledesma’s car and ran when pursued
by police because he was on parole and feared police contact while on
parole.  He admitted becoming a Black Angel at age 24 or 25, but did not regard
himself as a gang member following his release from prison earlier during
September 2008.  The defense also claimed
the stabbings were not gang related because no gang signs or names were displayed
at the party. 

III.  DISCUSSION

Defendant challenges the
sufficiency of the evidence supporting his active gang participation conviction
and the gang enhancement on his assault
conviction.  We conclude the evidence
is sufficient to support both. 

A.  Standard of Review

In considering a claim that
insufficient evidence supports a criminal conviction or sentencing enhancement,
our standard of review is limited.  (>People v. Smith (2005) 37 Cal.4th 733,
738; People v. >Augborne (2002) 104 Cal.App.4th 362,
371.)  We review the entire record in the
light most favorable to the judgment to determine whether it contains substantial
evidence—reasonable and credible evidence having solid
value—from which any rational trier of fact
could have found the defendant guilty of the crime or the enhancement true
beyond a reasonable doubt.  (People
v. Johnson (1980) 26 Cal.3d 557, 578; People
v. Ortiz (1997) 57 Cal.App.4th 480, 484.) 
We may not set aside a conviction or enhancement based on insufficiency
of the evidence unless it clearly appears “‘that on no hypothesis whatever’” is
there sufficient substantial evidence to support it.  (People v. Sanghera (2006) 139
Cal.App.4th 1567, 1573.)  Nor may we
affirm a conviction or enhancement “based on speculation, conjecture,
guesswork, or supposition.”  (>People v. Ochoa (2009) 179 Cal.App.4th
650, 663 [Fourth Dist., Div. Two].) 

B.  Substantial Evidence Supports the Primary Activities Element of the
Active Gang Participation Conviction

Active participation in a
criminal street gang is a crime. 
(§ 186.22, subd. (a).)  A
“‘criminal street gang’ means 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 [33] criminal acts enumerated in . . . subdivision (e)
[of section 186.22], 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).) 

Thus, an active gang
participation conviction requires proof that the primary activities of the gang
consists of one or more criminal acts enumerated in section 186.22, subdivision
(e).  These criminal acts or crimes
include assault with a deadly weapon, robbery, unlawful homicide or
manslaughter, the sale of controlled substances, burglary, felony fraudulent
use of an access card or account information, and unlawful use of personal
identifying information.  (§ 186.22,
subd. (e)(1)-(4), (11), (28), (29).) 

Defendant claims the prosecution
presented insufficient evidence that the primary activities of the Southside
Onterio gang system, including the Black Angels, consisted of one or more
criminal acts listed in section 186.22, subdivision (e).  On this basis, he claims the evidence is
insufficient to support his active gang participation conviction.  As we explain, Officer Devey’s testimony was
sufficient to establish the primary activities element of the active gang
participation conviction. 

Sufficient proof of a criminal
street gang’s primary activities may be based on evidence that its members have
“consistently and repeatedly”
committed one of more criminal acts listed in section 186.22, subdivision
(e).  (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.)  Past and present conduct by gang members is
relevant in determining the group’s primary activities, and expert testimony
based on an adequate foundation may be sufficient to establish the group’s
primary activities.  (>Id. at pp. 323-324; People v. Gardeley (1996) 14 Cal.4th 605, 620.)

According to Officer Devey, the
Black Angels are the “hardcore” members of the Southside Onterio gang system,
“the ones who have been promoted . . . [and] have put in enough work
for the gang,” and defendant was a self-admitted member of the Black
Angels.  Putting in work is the way a
gang member gains respect in the gang system, and this can include “anything
from selling drugs . . . [to] stabbings to shootings,” and a gang
member generates revenue for the gang by committing robberies, burglaries,
selling narcotics, and committing identity and check fraud. 

Officer Devey based his testimony
on his conversations with
other Southside Onterio gang members, his investigation of numerous crimes
committed by members of the gang, and his discussions with other law
enforcement officers.  He also testified
concerning several predicate offenses committed by members of the Southside
Onterio gang during the two-year period preceding the September 28, 2008,
stabbings.  These included possession of
a firearm by a felon, criminal threats, carjacking, receiving stolen property,
and drug sales.  (§ 186.22, subd.
(e)(4), (21), (24), (31).)

Based on Officer Devey’s testimony, the jury could have
reasonably inferred that members of the Southside Onterio gang system,
including members of the Black Angels, had consistently and repeatedly engaged
in stabbings, shootings, robbery, burglary, identity theft, and other crimes
listed in section 186.22, subdivision (e). 
The officer’s testimony was thus sufficient to show that the primary
activities of the Black Angels consisted of statutorily enumerated crimes.

Contrary to defendant’s suggestion, it was unnecessary for
Officer Devey to use the term “primary activities” in his testimony.  The jury had ample reason to infer the
officer was talking about the primary activities of Southside Onterio gang
members, including the Black Angels, when he testified that members of the gang
gained respect and raised revenue by committing crimes listed in section
186.22, subdivision (e), including robberies, stabbings, and shootings.  It was not necessary for the officer to use
the term “primary activities” in order to effectively describe the gang’s
primary activities.  (>People v. Margarejo (2008) 162
Cal.App.4th 102, 107.) 

Lastly, defendant claims In
re Alexander L. (2007) 149 Cal.App.4th 605 requires reversal of his active
gang participation conviction.  There,
the gang expert’s testimony lacked sufficient foundation to show that gang
members had consistently and repeatedly committed criminal activities listed in
section 186.22, subdivision (e), and the expert’s testimony was therefore
insufficient to establish the primary activities element of a gang enhancement.  The gang expert testified “he knew” members
of the gang had been involved in certain crimes, but the court pointed out,
“[n]o specifics were elicited as to the circumstances of these crimes, or
where, when, or how [the expert] had obtained the information.”  (Id.
at pp. 611-612.) 

Not so here.  Officer
Devey’s testimony concerning the primary activities of the Southside Onterio
gang was based on his personal conversations with its members, his
investigation of over 100 crimes committed by its members, and his discussions
with other law enforcement officers. 
Unlike the expert testimony in In
re Alexander L., Officer Devey’s testimony was based on an adequate
foundation and substantial evidence. 
(Cf. In re Alexander L., supra,
149 Cal.App.4th at pp. 611-614.) 

C.  Substantial
Evidence Supports the Gang Enhancement on the Assault Conviction

Section 186.22, subdivision
(b)(1) provides that “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” is subject to enhanced penalties.  (§ 186.22, subd. (b)(1).)  The jury found defendant guilty of assaulting
Aldo with a deadly weapon (§ 245, subd. (a)(1)), and further found that
defendant committed the assault for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)). 

Defendant claims there is
insufficient evidence he committed the assault “for the benefit of” or “in
association with” the Black Angles criminal street gang, and the enhancement
must therefore be reversed. 
(§ 186.22, subd. (b)(1).)  We
disagree.  Officer Devey’s testimony supports
a reasonable inference defendant stabbed Aldo for the benefit of and in
association with the Black Angels gang.

According to Officer Devey,
defendant and Hernandez were self-admitted Black Angels, the top-tier of the
Southside Onterio gang system.  Ledesma,
Hernandez’s younger brother, was a member of OVS, the first-tier and predominately
younger clique of the Southside Onterior gang system.  In Officer Devey’s opinion, defendant was
acting in association with and for the benefit of the Black Angels when he
stabbed Aldo at the party, because he was assisting Hernandez after Hernandez
got into a fight.  Substantial evidence
supports the officer’s opinion. 

According to Officer Devey,
loyalty and respect are “the two biggest things” a Southside Onterio gang
member has to demonstrate in order to become a member of the gang in the first
place and remain in good standing.  It
would show a “huge level of disrespect” if a member did not assist another
member in a fight. 

On September 28, 2008, defendant
crashed the party at the Arechiga residence, along with two of his fellow gang
members, Hernandez and Ledesma.  After
Hernandez fought with and stabbed Alcaraz, defendant fought with and stabbed Aldo.  Defendant, Hernandez, and Ledesma then left
the Arechiga residence together after they were forced out of the backyard, and
Hernandez and Ledesma threw bottles and other objects at the house.  All of this evidence supports a reasonable
inference that defendant stabbed Aldo in association with and for the benefit
of his gang.href="#_ftn2" name="_ftnref2"
title="">^[2] 

Similarly, in >People v. Albillar (2010) 51 Cal.4th 47,
substantial evidence showed three gang members committed a rape in concert and
other sex offenses against a 15 year old in association with and for the
benefit of their gang.  (>Id. at pp. 51, 59-64.)  A gang expert testified that gang members are
expected to support each other in committing crimes, and that assisting fellow
gang members in committing crimes earns the member respect and status within
the gang, enhances the reputation of the gang, and enables the gang to rely on
intimidation.  (Id. at pp. 60-61.)  The same
showings were made here. 

Defendant attempts to distinguish
Albillar on the ground that the
stabbings of Aldo “involved a confrontation at a backyard party between the
hosts, who were not affiliated with any gang, and a group of 10 to 15
individuals who had been uninvited.”  He
maintains that, “[o]ther than the defendants, there was no evidence that anyone
else in the uninvited group was associated with a gang, and no indication that
they attended the party for any purpose other than to socialize.”  Not so. 
Officer Devey’s testimony concerning the importance of showing respect
and loyalty in the gang culture supports a reasonable inference that defendant
fought with and stabbed Aldo in order to show his respect and loyalty to
Hernandez, to enhance the reputation of the Black Angels, and to raise its
status as an intimidating criminal street gang. 


IV.  DISPOSITION

            The
judgment is affirmed. 

            NOT TO BE PUBLISHED IN OFFICIAL
REPORTS

 

KING                                     

                                                J.

 

 

We concur:

 

HOLLENHORST                 

                             Acting
P. J.

 

CODRINGTON                    

                                             J.