P. v. Trinh
Filed 1/6/14 P. v. Trinh CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
DWIGHT ANDRE TRINH,
Defendant and
Appellant.
B242635
(
Super. Ct. No.
BA380215)
APPEAL from a judgment of the
William C. Ryan, 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, Lance E. Winters, Assistant
Attorney General, Paul M. Roadarmel,
Jr. and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and
Respondent.
________________________________
Dwight A. Trihn
appeals the judgment entered following a jury trial in which he was convicted
of shooting at an occupied motor vehicle with findings he personally used a
firearm and personally and intentionally discharged a firearm (Pen. Code, §§ 246,
12022.53, subds. (b) & (c); count 1),
assault with a semiautomatic firearm with a finding he personally used a
firearm (§§ 245, subd. (b), 12022.5, subd. (a); count 2) and felon
possessing a firearm (§ 12021, subd. (a)(1); count 3). The jury made findings each offense was
committed for the benefit of, or in association with, a criminal street
gang. (§ 186.22, subds. (b)(1)
& (b)(4)(B).) Appellant admitted
that he had a prior conviction for attempted murder (§§ 664, 187) that was a
serious felony (§ 667, subd. (a)(1)) and a strike (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)), and for which he had served a separate prison term (§
667.5, subd. (b)).
At sentencing, the trial court
imposed an aggregate term of 55 years to life in state prison. For count 1, shooting at an occupied motor
vehicle, the trial court imposed a doubled base term of 15 years to life, or 30
years to life, with a consecutive determinate term of five years for the prior violent
felony conviction and of 20 years for the use of a firearm, a term of 55 years
to life. For count 3, felon in
possession of a firearm, the trial court imposed a concurrent term of seven
years. The term imposed for count 2 was imposed
and stayed pursuant to section 654.
Hector
Medina owned a small bar and a separate restaurant, Casa Honduras,
on the frontage road on the northeast corner of 68th Street and
Vermont Avenue in Los Angeles. His residence was located
on 68th Street behind the bar, or “club,†as he referred to the bar. The club was a local gang hangout for the 65
Menlo Gangster Crips (Menlo) and their associate gang, the 67 Neighborhood
Crips. One of the Menlos,
appellant, known by his first name, Dwight, or as Dough Boy, frequented the club. Appellant often organized gang parties at the
club, and he and Medina would collect the proceeds of the parties at the door and split
those proceeds. Medina did not
employ appellant.
At 9:00 p.m. on December 26, 2010, appellant had organized a birthday party for a fellow gang member,
Ranbo. Ranbo, appellant and several other
gang members were present inside the club preparing for the party. Appellant was standing inside the front door
to the club making a cellular telephone call when a car drove by the club
northbound. A rear passenger in the car rolled
down a window and started shooting in the direction of the front of the club
with a rifle-shaped gun. Appellant could
be seen on a video surveillance tape at the front of the club emerging outside
with his .38-caliber semiautomatic pistol and chasing the drive-by car
northbound. While appellant ran, he
returned fire at the departing drive-by vehicle.
After the shooting, appellant did
not return to the club, and the police arrived.
Medina and the police determined the gunman in the drive-by vehicle was
not shooting bullets at the club. They
found paint balls sitting on two cars parked in front of the club and concluded
the rear occupant of the drive-by vehicle was discharging a paint gun. Appellant was later arrested for the shooting.
The
police were unable to obtain any reliable indication of the identity of the
occupants of the drive-by vehicle. Thus,
they were unable to determine whether the occupants of the drive-by car were
rival gang members and whether the drive-by shooting was gang activity. Nevertheless, appellant was arrested for
participating in a retaliatory gang shooting as he had returned fire at the occupied
drive-by vehicle. At trial, the jury found
him guilty of the shooting and returned a true finding as to a section 186.22,
subdivision (b), gang enhancement.
Officer McClean testified to the
to provide the basis for the gang enhancement.
He opined Menlo was a criminal street gang and gave the reasons why he
had so concluded. He testified to gang
mores and expectations. He opined
appellant was an active Menlo gang member, and he explained gang intimidation
of witnesses and of peers and the community generally. He explained why carrying a firearm and using
that firearm in retaliation elevated the gang’s status and the particular gang
member’s reputation. The officer described the concept of
retaliation and that engaging in a retaliatory shooting would elevate status
within the gang and would assist the gang’s reputation. Hypothetically, the officer gave his opinion
the shooting was committed in association with the gang and for its benefit as carrying
the firearm and committing the shooting showed disregard for the law, an
element of the gangster lifestyle, and allowed the gang member to assist the
gang in maintaining its control over the neighborhood.
1. The Sufficiency of the Evidence Supporting a Gang Enhancement
Appellant contends the evidence is
insufficient to support the finding of a gang enhancement pursuant to section
186.22, subdivision (b). He argues there
is no evidence the drive-by shooting was gang-related, or that appellant acted
with the assistance of other gang members, and thus appellant is not liable for
the gang enhancement. He urges “the
record . . . failed to disclose a rational inference [appellant’s] actions benefited
the . . . gang or that he harbored the specific intent to promote
[the] felonious activity of gang members,†and “no evidence [but] speculation
from a gang expert†suggested the crime “was committed for the benefit [of the
gang] with the specific intent to aid criminal conduct of gang members.â€
a. The standard of review for sufficiency of the evidence
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. [Citations.]†’ †(People
v. Wilson (2008)
44 Cal.4th 758, 806.) We presume every
fact in support of the judgment the trier of fact could have reasonably deduced
from the evidence. (Ibid.) 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. Lindberg (2008) 45 Cal.4th 1, 27.)
“ ‘A reviewing court neither reweighs evidence nor reevaluates a
witness’s credibility.’ (
(People v. Albillar (2010) 51 Cal.4th
47, 59-60 (Albillar).)
Substantial evidence includes
circumstantial evidence and the reasonable inferences this evidence allows. (People
v. Rodriguez (1999) 20 Cal.4th 1, 11; People
v. Ferraez (2003) 112 Cal.App.4th 925, 930.) “Although the jury is required to acquit a
criminal defendant if it finds the evidence susceptible of two reasonable
interpretations, one of which favors guilt and the other innocence, it is the
jury, not the appellate court, which must be convinced of his guilt beyond a
reasonable doubt.†(People v. Millwee (1998) 18 Cal.4th 96, 132.)
b. The other relevant legal principles
Section186.22,
subdivision (b)(1), is an enhancement which provides “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, 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 . . . .†(§ 186.22, subd. (b)(1).)
“[T]to fall within the statutory
definition of a ‘criminal street gang,’ there must be an ongoing association of
at least three persons that has as one of its primary activities the commission
of specific types of criminal activity, uses a common name or identifying sign
or symbol, and has members who individually or collectively have actually
engaged in ‘two or more’ acts of specified criminal conduct committed either on
separate occasions or by two or more persons.â€
(People v. Gardeley (1996) 14 Cal.4th 605, 623 (Gardeley).)
The gang enhancement does not
punish mere gang membership. (
subdivision (b)(1), the offense must be “gang-related,†i.e., it must be
committed (a) for the benefit of, (b) at the
direction of, or (c) in association with a criminal street gang. (Albillar,
supra, 51 Cal.4th at p. 60.) The second prong of the gang enhancement
requires a defendant commit the gang-related felony with the specific intent to
promote, further, or assist in any
criminal conduct by gang members -- including the current offenses -- and not
merely other criminal conduct by gang
members. (Id. at p. 65.)
There is no statutory requirement this “ ‘ “criminal conduct
by gang members†be distinct from the charged offense, or that the evidence
establish specific crimes the defendant intended to assist his fellow gang
members in committing.’
[Citation.]†(
The disjunctively worded
subparts of each element provide separate and alternative means to satisfy the
two statutory elements. (People v. Leon (2008)
161 Cal.App.4th 149, 162.)
A gang-related felony is required
for the initial prong of the enhancement, but not for the latter specific
intent prong. “There is no further
requirement that the defendant act with the specific intent to promote,
further, or assist a gang; the
statute only requires the specific intent to promote, further, or assist
criminal conduct by gang members.†(Albillar, supra,
51 Cal.4th at p. 67.) Gang membership is
not a requirement for the enhancement; the defendant is liable where a
defendant “personally commit[s] a gang-related felony with the specific intent
to aid members of that gang.†(
“There is rarely direct evidence
that a crime was committed for the benefit of a gang. For this reason, ‘we routinely draw inferences
about intent from the predictable results of action. We cannot look into people’s minds directly to
see their purposes. We can discover
mental state only from how people act and what they say.’ [Citation.]†(People
v. Miranda (2011) 192 Cal.App.4th 398, 411-412.) Thus, circumstantial evidence of specific
intent is sufficient. Additionally, if
substantial evidence otherwise establishes that the offense is gang-related,
the jury reasonably may infer that the defendant had the specific intent to
promote, further, or assist any criminal conduct by gang members. (Albillar,
supra, 51 Cal.4th at pp. 67-68.)
c. Expert opinion
In People v. Garcia (2007) 153 Cal.App.4th 1499, at pages 1512 to
1513, the court summarized the general rules concerning the use of expert
police officer opinion evidence for proving a gang enhancement.
“ ‘As a general rule, a trial court
has wide discretion to admit or exclude expert testimony. [Citations.]
An appellate court may not interfere with the exercise of that
discretion unless it is clearly abused. [Citation.]†’
(People v. Valdez (1997) 58 Cal.App.4th
494, 506 (Valdez).) In cases where a gang enhancement is alleged
or a substantive gang crime is charged, expert testimony regarding the “culture,
habits, and psychology of gangs†is generally permissible because these subjects
are “ ‘sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact.’ †(Ibid.)
For example, an expert may properly
testify about the size, composition, or existence of a gang; “motivation for a
particular crime, generally retaliation or intimidationâ€; and “whether and how
a crime was committed to benefit or promote a gang.†(People
v. Killebrew (2002) 103 Cal.App.4th 644, 656-658; see People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550 [“Expert
testimony repeatedly has been offered to show the ‘motivation for a particular
crime, generally retaliation or intimidation’ and ‘whether and how a crime was
committed to benefit or promote a gang’ â€]; Valdez, at pp. 507-509 [holding expert opinion concerning
whether the defendant acted for the benefit of a gang was admissible under the
circumstances of the case].)
Expert opinion that particular
criminal conduct benefited a gang by enhancing its reputation for viciousness
can be sufficient to raise an inference that the conduct was committed for the
benefit of a criminal street gang. (
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€] and People v. Romero (2006) 140 Cal.App.4th 15, 19 [relying on
expert opinion that “a shooting of any African-American men would elevate the
status of the shooters and their entire [Latino] gangâ€].)
d. Officer McClean’s trial testimony
Officer McClean had had personal
contact with appellant recently on 15 occasions. During those contacts, appellant admitted his
Menlo gang membership and freely discussed gang matters. Appellant’s torso, arms and legs were covered
with gang tattoos, many of which indicated that he was a Menlo gang
member. Appellant’s moniker was Dough
Boy. Officer McClean believed that
appellant was an active gang member based on appellant’s association with other
Menlo gang members, his admissions of gang membership and the location where he
hung out.
During the investigation of the
shooting, Officer McClean had listened to hours of the recorded telephone calls
appellant had made from the jail. During
the telephone calls appellant made to other gang members, appellant and the
other parties punctuated their conversations with such sayings as “Hey, Lo†or
“Menlos,†or said such things as “Lo’s up,†indicating they were Menlo
gang members.
The
officer gave his opinion the Menlo Crips were a criminal street gang and the
basis for his opinion. The officer
explained the 60 members of the Menlo gang associate with the 67 Neighborhood
Crips as they are both relatively smaller gangs. They are rivals to the bordering gangs, the
Six-Deuce Brims, the Eight-Trey Gangster Crips and several Hoover gangs. Rivalry between criminal street gangs, such
as Menlo, often lead to violence. The
Menlo gang was territorial, their center being Menlo Avenue
and 65th Street. Their territory’s northern
border is Gage Avenue, the southern border is Florence Avenue,
the western boundary is Vermont
Avenue, and the northern
border is Hoover Street.
The Menlos have a unique hand sign,
which the officer demonstrated, and their primary color is dark blue. They wear sports items in the colors of the University of Michigan Wolverines, which display the letter M.
They have other written signs, such as, “LO,†“M-G-C,†“65†and
“LXV.†The gang established its
territory by posting graffiti and threatening and fighting with, or shooting
at, others who enter their territory.
The officer gave the details of two
2009 crimes committed by fellow gang members Drew Pollard and Caprice
Thompson.
Officer McClean testified that when
an individual joins a gang he gives up a measure of personal autonomy. His actions are not merely
self-centered. His acts represent the
gang as well as himself. Retaliation is
part of the gang culture. A gang
member’s status within the gang is measured to some extent by his willingness
to engage in violence, particularly in retaliating against anyone who gives the
gang offense. An act of retaliation
would brand a gang member a coward. An
act of retaliation by an individual gang member benefited the reputation of the
gang as a whole.
Officer McClean explained the Menlo
gang’s primary activities were narcotic sales, robberies, burglaries and
assaults. He elaborated that a gun is a
“tool of the trade†for a criminal street gang member. Gang members carry guns to commit crimes,
establish their identity and effect fear and intimidation in peers and within
the community. Gang crimes often involve
firearms. Officer McClean said Menlo
gang members carry guns even in their own territory. They do so to protect themselves, their
neighborhood, and to enforce boundaries with respect to rivals. They use firearms more offensively than
defensively.
The more serious or violent a crime
or crimes a gang member commits, the higher the gang member’s status is within
the gang. Gang members equate fear with
respect. Thus, the more one is feared,
the more one is respected. If you go
around beating others up, terrorizing others and shooting at people, you make a
name for yourself within the gang, and your status is elevated.
Also, gang members have rank in the
gang based on the “work [they] put in.â€
The more crimes and other work one does for the gang’s benefit, the
higher one’s rank. One starts as a
teenager performing lowly duties. Then,
when the gang member is old enough, he becomes an “O.G.,†a “gang Crip,†and he
directs the younger gang members. In
Officer McClean’s opinion, appellant was a “soldier.†He was not quite an “O.G.,†but his status
was high. He was a “warrior,†and others
worked under him. According to
statements appellant made during the recorded telephone calls, it appeared
appellant had recently changed his moniker to “Big D Capone.†In one jail telephone call, appellant
directed other gang members “Baby D Capone,†otherwise known as “Lavelle,†was
to be regarded as his representative in the neighborhood. Appellant indicated Lavelle’s directions were
to be considered as directions from appellant.
The officer testified to the gang
concept of “retaliation.†He said if
another gang slights a gang member in some way, or “disrespects†a gang member,
gang members must “step up†and retaliate.
If not, the gang member will be branded a coward. One’s status within the gang will be lowered
until he is kicked out of the gang.
One’s status in the gang depends on his reputation and the respect he
has from others.
Officer McClean said engaging in a
shooting elevates a gang member’s status with the other gang members. A shooting gave one bragging rights, i.e.,
the gang member could brag in order to enhance his reputation.
Retaliation is part
of the gang culture. If a gang member
goes out and commits an act of retaliation, it is regarded as benefitting the
gang and is not necessarily done with selfish motives. Everything a gang member does is for the
gang. If someone fails to commit a
violent act in retribution, it lowers the status of the entire gang. Word spreads, and if a particular gang member
is not feared, he fails to get respect.
The prosecutor asked Officer McClean
a hypothetical loosely based on the facts of appellant’s case. The officer opined the gang member who
returned shots in response to a paintball shooting would be acting for the
benefit of, and in association with, the gang.
If a gang member is a senior person in the gang, he considers himself a
warrior. He has to live up to his
reputation. If someone shoots at him, it
is expected he will pull out his own gun and return fire, that is, he is
required to “step up†and “take care of business.†Everyone will see he did a good job, and his
status is retained and elevated within the gang. To fail to respond would brand the gang
member a coward and very significantly lower his status.
Immediately retaliating also lets
rival gang members know that the Menlos protect their neighborhood. It becomes widely known if an interloper
tries to “disrespect†the gang, the gang will meet violence with violence. The officer said, “It ups the level of
violence and the fear that’s going on in their neighborhood.†The gang member may be defending himself, but
he is also defending the gang.
Officer McClean opined the instant
shooting was committed in association with the gang. The club was a known hangout where a gang
party soon would be taking place. By carrying
a gun within the club, the gang member was maintaining the gang’s status. The gang members were carrying on their
business in the community with impunity.
It is against the law for a gang member to own or possess a
firearm. So a gang member carrying a
firearm demonstrates a certain disregard for the law, an element of living a
gangster lifestyle. Possessing the
firearm also allowed the gang member to protect the gang in the neighborhood.
The officer
explained the factors that persuaded him of a benefit to the gang. Appellant was a gang member at a gang
function in a well-known gang location within the territorial boundaries of the
gang. He was carrying a firearm when he
was prohibited from possessing it. He
was a gang member carrying a gun for the benefit of the gang, and additionally,
he used that gun. The officer claimed it
was irrelevant that the drive-by shooting was committed with a paintball
gun. Appellant’s act of shooting at the
drive-by vehicle was committed in association with the gang because the
drive-by gunman was “disrespecting†the Menlo gang, whether drive-by gunman
used a real gun or not. In the gang
culture, that sort of an attack called for violent retaliation.
Appellant’s recorded jail telephone
calls indicated he is currently an active gang member. Appellant’s arrest and incarceration for the
retaliatory shooting would only enhance appellant’s reputation within the
gang. Gang membership is a particular
lifestyle, a life of crime.
e. The analysis
Appellant makes no claim Menlo is
not a criminal street gang. Accordingly,
we do not discuss that aspect of Officer McClean’s testimony.
(1) Committing
an offense alone
At
the outset, we note that in the recent decision of People v. Rodriquez (2012) 55 Cal.4th 1125 (
of the substantive gang offense in section 186.22, subdivision (a). In so doing, the court observed that the
elements of the substantive offense and the instant enhancement, section
186.22, subdivision (b)(1), are different.
The court explained while the substantive offense requires collective
action, the enhancement does not. The
court indicated for the enhancement, a person may act alone and still be
subject to the finding of a gang enhancement.
(See Rodriquez, at pp.
1138-1139; see also conc. op. by Baxter, J., at pp. 1139-1141.) The court observed there is no multiple actor
requirement as there is for the substantive gang offense. (See Rodriquez,
at pp. 1134-1135.) The enhancement
applies when a defendant personally commits a gang-related felony with the
specific intent to promote, further, or assist a gang. (Albillar,
supra, 51 Cal.4th at pp. 67-68.)
Although
the Rodriguez court’s comments on
this point are dicta, the Supreme Court’s dicta generally should be followed,
particularly “[w]hen the Supreme Court has conducted a thorough analysis of the
issues and such analysis reflects compelling logic,†as occurs in
v. Superior Court (1997) 66 Cal.App.4th 1163, 1169.)
Thus, this court concludes the fact
appellant acted alone creates no bar to the finding of the gang enhancement.
(2) Gang-related
felony
Appellant argues there is inadequate
proof of a gang-related felony, the first prong or element of the
enhancement. However, Officer McClean
testified the offense was gang-related because appellant’s retaliatory shooting
benefited the gang and also was conducted in association with the gang. It was irrelevant the police were unable to
determine the identity of the occupants of the drive-by car in order to
determine whether the drive-by assailants were involved in gang activity. What is determinative of the initial element
of the enhancement is whether appellant’s conduct benefited the gang.
For several years, Officer McClean
had been working the gang detail in the gang’s general area. Thus, many of Officer’s McClean’s
observations about the Menlo gang were grounded in his personal knowledge of
the gang activity in that area. The
officer testified the club was a well-known gang hangout. Many gang shootings and attacks had occurred
there, as well as several deaths. Medina agreed with
the officer’s evaluation his club was a well-known gang hangout and
additionally testified there had been a prior drive-by shooting just two weeks
prior to the instant shooting.
The
officer testified as to how the gang protected its territory by using violence
and would attempt to meet each violent attack on persons within its territory
with immediate violence. The carrying of
a gun in defiance of the law and to meet retaliatory or drive-by shootings was
part of the gang lifestyle. Being
prepared for and meeting an attack benefited the individual gang member and the
gang. Appellant’s status as an
almost-O.G. demanded his action in response to the paint ball shooting.
Expert testimony regarding the “
‘culture, habits and psychology of gangs’ is generally permissible because
these subjects are ‘ “sufficiently beyond common experience that the opinion of
an expert would assist the trier of fact.†’ †(People
v. Garcia (2007) 153 Cal.App.4th 1499, 1512.) Officer McClean’s testimony about gang
values and the mores of retaliation and respect amply supports the first prong
of the enhancement. It explains for the
jury the gang and gang member’s motivations and gang culture so jurors could
reach their own conclusions with respect to whether appellant acted to benefit
the gang or in association with the gang.
The decisions in
650 (Ochoa) and In re Daniel C. (2011) 195 Cal.App.4th 1350 (
In Ochoa, a gang member carjacked a car from a passenger parked in a
fast food restaurant’s parking lot.
During the crime, there was no objective indicia the carjacker was a
gang member. The gang expert testified “the
carjacking would benefit the gang by providing general transportation to the
gang’s members, by enabling transportation of narcotics for sale by the gang,
by enabling transportation to commit further crimes by the gang, by providing
economic benefit to the gang by sale of the vehicle, by elevating defendant’s
status within the gang, and by raising the gang’s reputation in the community.†(Ochoa,
supra, 179 Cal.App.4th at p. 656.)
However,
in Ochoa, there were no foundational
facts adduced at trial tending to prove the carjacking was gang-related. (Ochoa,
supra, 179 Cal.App.4th at pp. 659-663.)
The defendant did immediately drive the car to another location and used
the gun to intimidate another person.
However, no witness testified this latter use of the firearm was gang-related
or of benefit to the gang. (
personal motive to participate in the shooting, except that he was affiliated
with the gang, at the gang’s hangout, and protecting his neighborhood. Retaliatory drive-by shootings, such as that
engaged in by appellant, do not usually occur outside the gang context. (Id.
at p. 661.)
In Daniel C., supra, 195
Cal.App.4th 1350, three youths entered a market. Two of the young men then walked
outside. The third youth, Daniel C.,
hung back. A market employee saw Daniel
C. pick up a bottle of bourbon and walk out the exit without paying for
it. When confronted outside the
supermarket, Daniel C. assaulted the employee with the bottle and used its
broken neck to cut the employee’s ear.
The three youths and a driver of a car were detained. (Id.
at pp. 1353-1354.)
One of the youths claimed the three
youths entered the market to get liquor but the other two denied that was their
purpose. Daniel C. said he went there to
get alcohol even though he had no money, and he told the officer the other
youths were unaware of his intent. (
1354.) At the adjudication, Daniel C.
claimed that he only knew one other youth in the car, there was no gang purpose
underlying the commission of the crime, and he stole the liquor bottle on
impulse. (Id. at p. 1357.)
He was not a gang member. (
An expert police officer opined the
robbery was gang-related and Daniel C. was a gang member based on his
association with other youths with gang affiliations. The expert claimed one youth at the market
with Daniel C. was an active gang member; another was an “affiliate.†(Daniel
C., supra, 195 Cal.App.4th at p. 1355.)
The youths each wore some item of clothing that was red, a gang
color. They had coordinated their
activities in the market. (
crimes benefited the perpetrator because it raised his level of respect and
status within the gang. Also, the theft
of the bourbon benefited the gang and Daniel C. because it showed appellant and
his companions “were ‘putting in work’ †for the gang. (Ibid.)
In Daniel C., the appellate court found the foundational facts in the
trial evidence insufficient to support the expert’s opinions concerning the
gang enhancement. It held there was no
evidence the other youths were aware of what Daniel C. was doing or that the various
youths referred to by the gang expert
were actually gang members. (
at p. 1361.) In our case, there was no
true dispute concerning the foundational facts that appellant was a gang
member, present with several other gang members inside the bar, and the club
was the well-known location of various incidents of gang activity. The evidence supports the gang enhancement as
appellant had no personal motive for his quick response to the drive-by
shooting as he was sheltered inside the outside door to the bar and emerged
only after the drive-by vehicle was driving off. Circumstantially, the only way to explain his
conduct was that he was acting in general conformity to well-known gang mores
by retaliating for the drive-by shooting.
Officer McClean was assigned to work an adjacent area and had considerable
personal knowledge about the Menlo gang and its members.
(3) Specific Intent
In this case, the evidence
additionally supports the intent element, or the second prong, of the
enhancement: that appellant act to
promote, further or assist criminal conduct by gang members.
Circumstantial evidence of intent is
sufficient to demonstrate this prong of the enhancement. (People
v. Miranda, supra, 192
Cal.App.4th at pp. 411-412.) When appellant took out his gun to retaliate for
the disrespect the paint-ball shooter was showing to his gang and its
territory, he was aiding members of his gang.
He acted to make it safer for gang members to hang out at that
particular location by quickly retaliating with maximum force for the lack of
respect shown to those who frequented the club.
He benefited the gang by acting violently with a firearm, conduct
which made it easier for gang members to act with impunity within the
confines of the Menlo’s gang territory.
Circumstantially, from this evidence, the jury had ample evidence from
which to conclude appellant retaliated with the intent to protect the territory
of his gang, i.e., for the benefit of the gang.
That was all that was required to meet the intent, or second prong, of
the enhancement. (Albillar, supra, 51 Cal.4th at p. 68.)
2.
The Restitution Fines
The People contend
the restitution fines imposed are unauthorized, and accordingly, a remand to
the trial court is necessary so as to reimpose restitution fines that fall
within the statutory limits.
At the oral proceedings of judgment,
the trial court imposed a restitution fine of $20,000 (§ 1202.4, subd. (b)) and
a parole revocation restitution fine “in the same amount†(§ 1202.45), the
parole restitution fine to be stayed until such time as appellant violated
parole. However, the trial court’s
minute orders and abstract of judgment indicate that the trial court imposed
restitution fines in a different amount, of $1,000 each.
The statutes limit the amount of a
restitution or a parole restitution fine to $10,000. The latter minute order and abstract of
judgment fines of $1,000 were within statutory limits, while the orders for
$20,000 fines entered during the oral proceedings of judgment exceeded
statutory limits.
As the maximum restitution fine that
may be imposed is $10,000 for each of the restitution fines, we assume the
trial court inadvertently erred in making the orders for the unauthorized
restitution fines. Thereafter, the
erroneous orders were brought to the trial court’s attention. At that point, the trial court corrected its
orders and had its clerk record the new authorized orders in its minutes and in
the abstract of judgment. (See
599 [whether the recitals in the clerk’s minutes should prevail as against
contrary statements in the reporter’s transcript, must depend upon the
circumstances of each particular case].)
Under the circumstances, we deem the minute order and abstract of
judgment to prevail over the reporter’s transcript. The erroneous statements in the reporter’s
transcript are of no effect.
As the minute order and the abstract
of judgment contain the new orders of the trial court, and the fines
imposed therein are authorized, there is no need for this court to order a
remand for the trial court to once again reimpose fines within statutory
limits. (See People v. Cleveland (2004) 32 Cal.4th 704, 768; People
v. Thompson (2009) 180 Cal.App.4th 974, 978.)
The judgment is affirmed.
OFFICIAL REPORTS
KLEIN,
P. J.
We concur:
CROSKEY,
J.
ALDRICH,
J.
Penal Code unless otherwise indicated.
witness. He did not want to displease
appellant or the police, and he was afraid of appellant and the Menlo
gang. He was concerned for his family’s
safety as they lived in the residence located behind the club. Medina initially
declined to identify appellant on the video surveillance tape and said
appellant was not at the club. Medina admittedly had
been in contact with appellant who was telephoning Medina from the
jail. Through direct threats and threats
by other gang members, appellant attempted to shape, and did partially have an
effect on, Medina’s preliminary
hearing and trial testimony. The above
version of the shooting was established at trial through Medina’s trial
testimony and his extrajudicial statements to Los Angeles police officers,
particularly Los Angeles Police Officer Stephen McClean (Officer McClean). By the time of trial, Medina had moved his
family from the residence he owned behind the club. Before the preliminary hearing, Medina made a claim that
a Jose Marin, a Huntington Park business rival,
had threatened Medina with
violence. The police did not regard this
latter claim as credible.
