Opinion
B223596
09-27-2011
THE PEOPLE, Plaintiff and Respondent, v. DEONTE BEAVER et al., Defendants and Appellants.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant Deonte Beaver. William Hassler, under appointment by the Court of Appeal, for Defendant and Appellant Kelvin Holmes. Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant Antonio Watts. Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant Toney Davion Starnes. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Michael Katz and Robert Snider, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA108576)
APPEAL from a judgment of the Superior Court of Los Angeles County, Jerry E. Johnson, Judge. Affirmed.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant Deonte Beaver.
William Hassler, under appointment by the Court of Appeal, for Defendant and Appellant Kelvin Holmes.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant Antonio Watts.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant Toney Davion Starnes.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Michael Katz and Robert Snider, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Deonte Beaver, Kelvin Holmes, Antonio Watts, and Toney Davion Starnes, of one count of second degree robbery. The jury also found true the allegations that each committed the robbery in association with or for the benefit of a criminal street gang, and that each personally used a firearm. All four appeal. We affirm.
BACKGROUND
An amended information filed January 24, 2010 charged Beaver, Holmes, Watts, and Starnes with one count of second degree robbery, in violation of Penal Code section 211. The information also alleged that the robbery was committed for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b)(1)(C), and that a principal used a handgun, pursuant to section 12022.53, subdivisions (b) and (e)(1). Further, as to sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), the indictment alleged that Starnes and Watts had prior juvenile adjudications.
All subsequent statutory references are to the Penal Code.
At trial, Cynthia Chavez testified that on September 22, 2009, she worked as a cashier at the El Pueblo Mini Market at 11422 1/2 Central Avenue in Watts. Chavez sat in a cashier's box enclosed by a big fence, with a door on the side and an opening in front for transactions, from which she could see people coming in and out the store entrance and throughout the store. There were refrigerators and shelves in the store, and a storage room in the back.
At about 10:30 a.m. on September 22, 2009, one person came into the store, stayed for a few seconds, walked to the back refrigerators, and then walked out. He was wearing a black hat with a red "'C'" on it and a red top, and a white shirt. She identified Watts in court as the person who came in alone. She had also circled his photograph in a photographic lineup and wrote "'looks like the guy,'" and had identified Watts in a lineup two months later. As Watts walked out, Chavez saw "shadows, a group of people there." Five or 10 minutes later, Watts came back in with four other men. Chavez recognized all of the defendants as present the day she was robbed. Holmes was standing by the store entrance, baby faced and wearing a wig; she identified him in a lineup in November. Starnes was wearing a white T-shirt and a band on one arm up to his elbow; she identified him in a lineup on the same date.
Beaver was wearing a black shirt. Chavez had not identified Beaver at a lineup, but could recognize him in court. "It's hard to explain, but he—due to the fact—his features, due to the fact that he was dark, you know, not that tall. And then he caught my attention; I didn't keep looking at him. The only time I turned around to look at him was when he was heading to the back room, so I wasn't able to identify him because I didn't get a—you know, a good view of him, only when I turned and I saw him go to the back room." She had not gotten as good a look at him as she did at the others. When asked whether, looking at him in court, she believed he was in the store, Chavez said, "I think he might have been." When asked, "How certain are you?" she responded, "Well, with everything going on, you could say about 90 percent sure."
When the five men walked in together, Watts headed to the refrigerators. Beaver walked to the storage room, went inside for a second or two, and came out. Starnes stood in front of the cashier area, and Holmes and the fifth (unidentified) man stood inside by the front door. Watts walked to the register and put down a drink, pulled out a gun, "clicked back" the gun, and said, "'Give me the money.'" None of the men said anything or moved when Watts pulled out the gun and told Chavez to give him the money. Chavez gave him the money. The unidentified man then demanded her necklace and rings, and Watts, still pointing the gun at her, demanded her phone. Chavez said, "'No. Why?'" when the unidentified man demanded her jewelry. As the men were getting ready to leave, he said, "'We asked you for your jewelry, so take it off.'" Chavez took off her rings and placed them on the counter, and Watts reached for them. Watts then said, "'Your necklace, too.'" Chavez told him, "'I can't take it off. What do you want me to do, rip it?'" Watts said, "'Yeah, just rip it.'" Chavez ripped it off, and Watts reached over and snatched the phone, and took her necklace and rings. He was only an arm's length away. Beaver was about seven feet away, Starnes was about an arm's length away, and Holmes was a little more than six feet away. Chavez got a good look at all their faces.
On cross-examination, Chavez explained that her purse was inside the storage area, and when she saw Beaver head into the storage area she turned around, thinking "[o]h, my god . . . They're going to take it."
Chavez testified: "After they took everything, they said, 'Where's the rest of the money?'" She told them she didn't have any more. Watts had asked for "Swishers," which are cigars. She placed two boxes of cigars on the counter, grape flavor and regular, and Watts only took the regular flavor, leaving the grape cigars there. The grape cigars were in a purple box (with other colors) that said "[g]rape" on it. Holmes said, "'It's nothing against you. Don't worry,'" and then they left the store.
Chavez identified a black T-shirt with white designs as the one Beaver was wearing. The light at the lineup was bright and shining in the men's faces and she could see more detail, and so she saw tattoos on Beaver at the lineup. In court, she could see one above his nose. The lighting in the store was darker. At the lineup, she wasn't sure if it was Beaver because she couldn't remember whether, at the scene, he had tattoos. Nevertheless, she was 90 percent sure of her identification. She was 100 percent sure that Watts was the man who pointed the gun at her, 90 percent sure that Starnes was the man with the white shirt and the arm band, and 90 percent sure that Holmes was the baby-faced man with the brown wig. On cross-examination, she said she looked at Holmes by the front door because he was the one who actually said something to her.
After the men left, Chavez waited a while, and then headed to the front door and peeked out. She saw that the men were walking on Central, and they made a right onto 114th toward Nickerson Gardens. When the men were at the corner, she went next door to the body shop and asked to use their phone, because "'I just got robbed.'" She called the police.
The prosecution played three videotapes for the jury on which Chavez identified the five men walking together about two stores down the street from the mini market as the men who robbed her, and recognized four of them as Beaver, Starnes, Watts, and Holmes.
On cross-examination, Chavez stated she could not remember seeing anyone with tattoos that day. None of the five men said anything that gave her the impression that they were gang members. No one who came in the store had ever made comments that made her think that they were members of a gang, and she did not live in that area. During the robbery, Starnes said nothing, did nothing, and she did not look at his face to see if he was startled when the gun came out.
Twenty minutes after the robbery, Chavez identified to Los Angeles Police Department (LAPD) Officer Ryan Moreno a photograph of someone who was not in court that day, as the man who walked to the back of the store. She also did not identify Beaver in a lineup, or at the preliminary hearing, both in November 2009. At the preliminary hearing, she had stated that the man who walked to the back of the store was of medium height, about five feet six inches. She had gotten a look at, but "not a perfect view" of, the man's face when he walked out of the back of the store. Today, in court, she could see a tattoo on Beaver above his nose, in the space between his eyebrows. She had seen that tattoo on Beaver at the lineup, and so she had not been sure that he was one of the men who came into the store.
Beaver was six feet tall.
On redirect, Chavez stated that she had told Officer Moreno that the man who walked to the storage area at the back of the store was a combination of two of the photographs. She again identified a black T-shirt with white designs as the T-shirt worn by the man who walked to the storage area in the back. She believed that Beaver was the man who came in wearing the shirt and walked to the storage area. Starnes was the man who had the band up to his elbow, Watts was the man who came in the first time and then returned with the four men, pointed a gun at her, and took her things, and Holmes was the man with the baby face wearing the white shirt and brown wig. During the robbery, none of the four men in court or the fifth man looked startled or surprised or said anything that indicated he was startled or surprised, and no one ran out or dissociated himself from the others while she was being robbed.
The photographs were not of Beaver or any of the appellants.
Officer Moreno testified that he obtained the surveillance videos from surrounding businesses, which showed the activity near the market. Officer Moreno also testified regarding a series of photos of the four men. Starnes gave a statement to Officer Moreno in which he admitted he was in the store during the robbery, but denied he knew anything about the robbery. Officer Moreno spoke to Beaver on the day of the robbery. Beaver wore the same clothes (including the T-shirt) as in the surveillance video. Beaver said he was with four of his "homies," and identified himself as one of the men in the video, although he had not seen the video which reflected that five people went into the market. Beaver said he got to the area between 11:00 a.m. and 12:00 noon, but the time on the videos was 10:30 a.m. Officer Moreno asked Beaver why he was walking up the street "overly cautious of his surroundings," and Beaver said he was a "Bounty Hunter Blood. And [he] think[s] he said . . . he's got to worry about getting shot or something like that." Beaver never admitted that he was inside the store. Officer Moreno arrested Beaver in Nickerson Gardens. Beaver was riding a bicycle, and he did not have a cell phone, cash, or jewelry in his possession.
LAPD Officer Jesus Garcia testified that while he was on duty at around 6:00 p.m. on the day of the robbery, he saw Holmes. He had spoken to Holmes eight to 10 times before, and Holmes told Officer Garcia four or five times that he was a member of the Bounty Hunter Bloods. Holmes ran away when Officer Garcia got out of his patrol car and asked to talk to Holmes. He stopped at the officers' command after a block; the day of the robbery was the first and only time that Holmes ran away from Officer Garcia.
LAPD Officer Tyson Hamaoka testified that he was a member of the gang enforcement detail, had been assigned to the Bounty Hunter Bloods for three years, and had previously testified as a Bounty Hunter Bloods expert about 25 times. He shared information with other officers and other agencies, talked to gang members on a daily basis, and talked to members of the community, including witnesses or victims of gang crimes. All four defendants were members of the Bounty Hunter Bloods.
Officer Hamaoka testified that joining the Bounty Hunter Bloods required a "proving ground" time to show allegiance to the gang, usually through illegal activities that were part of the gang's primary activities. Once a person was in the Bounty Hunter Bloods, he would be expected to "put in work for the gang" to bolster the gang's reputation and earn money. The Bounty Hunter Bloods were very concerned about "respect," which was gained by putting in work by making money or committing crimes for the gang, the more heinous the crime the better. Armed robbery, including one in which five members were present, and only one had a gun and the others were there for support and other reasons, would qualify for all as putting in work for the Bounty Hunter Bloods. It was rare for anyone to do an armed robbery alone. The proceeds from a robbery would be shared with the gang to fund other criminal enterprises and to purchase weapons for the gang. Committing crimes bolstered the gang's reputation, as talk about the crime would spread fear in the community, boost their reputation with other gangs, and help to recruit members.
The Bounty Hunter Bloods considered Nickerson Gardens "their backyard or their home," and Nickerson Gardens was the focal point and stronghold of the gang's territory. The Bounty Hunter Bloods associated with the color red, but the trend was not to display colors as much as before, because gang members knew that the colors could be used as evidence of their gang affiliation in court. Bounty Hunter Bloods tried to minimize tattoos, which could also be used in court to identify them as a gang member. The Bounty Hunter Bloods feuded with several gangs, including the Grape Street Crips.
When asked, "What are the primary activities of the . . . Bounty Hunter Bloods?," Officer Hamaoka replied, "The main criminal activities that they have are narcotic sales, weapons possession, residential burglaries, street robberies, robberies themselves, carjackings, attempt[ed] murder, anything up to murder itself," including possession of guns and armed robberies. The gang committed these activities on a nearly daily basis.
Within the Bounty Hunter Bloods there were smaller subsets, or "cliques," whose members hung out together and committed crimes together. Officer Hamaoka opined that all four defendants belonged to the Savage Squad Clique, based on his observations in the field and photographs showing the defendants throwing up Savage Squad Clique gang signs. Savage Squad Clique was a new clique with about 12 members which would need to establish itself by putting in work to gain respect. The most common way to boost reputation was by street robberies: "Armed robbery is definitely taking it up a little." The basis of Officer Hamaoka's knowledge was his experience from talking to members in the community, witnesses, and victims who did not want to come forward in court.
Not all crimes committed by gang members would be for the benefit of the gang. Examples were domestic violence and some vehicle thefts. Given a hypothetical mirroring the facts of the Chavez robbery, Officer Hamaoka's opinion was that the robbery definitely was committed in association with the Bounty Hunter Bloods. An armed robbery in a store, with the unknown factor of who might be inside or in the back, would be difficult for one person close to a busy intersection in the middle of the day. Doing it in concert increased the possibility of success. Someone would be assigned to have a gun and be the muscle, someone would watch out for who else is in the store, someone would contain anyone else who was in the store, and someone would stand at or near the entrance door and be a lookout for the police.
Officer Hamaoka also opined that the robbery would benefit the Bounty Hunter Bloods as a whole and the Savage Squad Clique, because they could earn their respect by being good earners or committing crimes. Each individual's credibility would go up, showing peers in the neighborhood that they were willing to engage in armed robbery. Proceeds from armed robberies can go to fuel the gang's criminal undertakings, such as narcotics sales, or buy weapons with which the gang could commit acts of violence. This type of crime so close to the gang's area (Nickerson Gardens) also created fear and intimidation within the community.
It made no difference that nobody threw up gang signs or said, "'Bounty Hunters,'" because in the primary activities of the gang, including armed robberies, "you just don't see that anymore." Bounty Hunter Bloods had seen friends and family who were active gang members go to jail for these types of crimes and any association with a street gang could enhance their time in prison, so they may not customarily say or do anything to associate themselves with the gang. The location of the crime, particularly when participants leave on foot, would make the public assume that the Bounty Hunter Bloods committed the crime because it was close to the center of their territory and they could quickly get out of sight. Their reputation would rise in the public at large and also with rival gangs such as the Grape Street Crips. Other members of the Bounty Hunter Bloods would be more willing to work with members who successfully committed crimes, because it showed they knew what they were doing.
On cross-examination, Officer Hamaoka stated that he had never testified in court that a crime was not committed for the benefit of a gang.
The defense did not present any evidence.
DISCUSSION
I. The appellants' individual claims have no merit.
A. Starnes (Juvenile Adjudication)
Starnes also joins in all appellants' arguments to the extent that they apply to him.
Starnes was sentenced to a 20-year prison term, the upper term of five years doubled to 10 under the Three Strikes law, plus a 10-year consecutive term under section 12022.53, subdivision (b). Starnes's prior strike was a juvenile adjudication for robbery. Starnes argues that the use of his prior juvenile adjudication to enhance his sentence under the Three Strikes law violated his federal constitutional rights to a jury trial and due process.
In People v. Nguyen (2009) 46 Cal.4th 1007, 1028, the California Supreme Court rejected a similar claim: "[T]he absence of a constitutional or statutory right to jury trial under the juvenile law does not, under Apprendi [v. New Jersey (2000) 530 U.S. 466 [120 S.Ct 2348, 147 L.Ed.2d 435]], preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the maximum sentence for a subsequent adult felony offense by the same person." As in Nguyen, Starnes was afforded the right to have a jury determine whether he suffered a prior juvenile adjudication, and Starnes waived that right. We are bound by the California Supreme Court's decision (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 454), and we reject this claim.
B. Beaver (Eyewitness Identification)
Beaver argues that there was insufficient evidence to support his conviction of robbery. He characterizes Chavez's eyewitness identification as "weak," since she stated that he "might" have been one of the men in the store; was 90 percent sure; said she "believe[d]" Beaver was the one in the black shirt with white designs; identified someone other than Beaver in the photo lineups shortly after the robbery; did not identify Beaver at the lineup, or at the preliminary hearing; did not remember a tattoo on his face; and said the person who walked to the back of the store was of medium height while Beaver was six feet tall. We disagree.
We apply the substantial evidence standard in evaluating the sufficiency of the evidence, examining the evidence in the light most favorable to the judgment, determining whether the evidence is reasonable, credible, and of solid value, so that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) In assessing whether a conviction violated due process because the evidence was insufficient, the reviewing court does not "'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt,'" but instead views the evidence favorably to the prosecution, and asks itself whether any rational jury could have found the elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 334-335.)
"'If this "substantial" evidence is present, no matter now slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed.'" (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) In-court eyewitness identification alone is sufficient evidence to sustain a conviction. (Ibid.) "[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court." (Ibid.)Finally, "the evidence of a single witness is sufficient for proof of any fact. [Citations.]" (Ibid.)
Chavez identified Beaver in court as the man who walked back to the storage area. The circumstances surrounding her identification of Beaver were explored thoroughly at trial. Chavez explained that Beaver was about seven feet away during the robbery. The bright light at the lineup allowed her to see a tattoo she had not seen at the time of the robbery, so she did not identify Beaver at the lineup. She identified the T-shirt Beaver was wearing, and she testified she was 90 percent sure of her identification. The jury believed her identification, and that determination binds us. (See People v. Cooks (1983) 141 Cal.App.3d 224, 278 [where jury heard conflicting evidence regarding identification, including eyewitness who was "'90 percent sure,'" and jury determined that defendant was guilty beyond a reasonable doubt, evidence was sufficient as a matter of law].)
Further, although Chavez's identification alone was sufficient for proof that Beaver was one of the four men at the robbery, Beaver also admitted he was one of the men in the video showing the activity outside the market and stated he had been with his four "homies."
The evidence was sufficient to support Beaver's conviction of robbery.
II. Sufficient evidence supported the true finding on the gang enhancement allegation.
All four defendants challenge the sufficiency of the evidence to support the jury's true finding on the gang enhancement. Section 186.22, subdivision (b)(1), states: "[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, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished" by longer terms of imprisonment.
A. Primary Activities
Appellants Starnes and Watts argue that there was insufficient evidence that the Bounty Hunter Bloods met the definition of "'criminal street gang'" in section 186.22, subdivision (f), which provides: "As used in this chapter, '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 criminal acts enumerated," which include robbery. (§ 186.22, subd. (e)(2).) They claim that Officer Hamaoka's testimony was not substantial evidence to support the conclusion that one of the gang's primary activities was robbery.
The prosecutor asked Officer Hamaoka, "What are the primary activities of the gang, the Bounty Hunter Bloods?" Officer Hamaoka replied, "The main criminal activities that they have are narcotic sales, weapons possession, residential burglaries, street robberies, robberies themselves, carjackings, attempt murder, anything up to murder itself," which they engaged in "on a nearly daily basis."
"The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.]" (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) "Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute," and expert testimony (including that of a police gang expert) that the gang primarily engaged in some of the enumerated crimes, based on conversations with gang members, personal investigations, and information from law enforcement colleagues, would suffice. (Id. at p. 324.)
Starnes and Watts cite In re Alexander L. (2007) 149 Cal.App.4th 605. In that case, however, the evidence was found insufficient to support the gang enhancement where the expert not only failed to state that the crimes he referred to were the primary activities of the gang, but also gave no information about his sources. Officer Hamaoka testified that the "main" criminal activities of the Bounty Hunter Bloods included robbery, and he stated that the basis for his testimony was his sharing of information with other officers and other agencies, conversations with gang members, and conversations with community members, witnesses, and victims who did not want to come forward. Appellants do not argue that this was not a reliable foundation for his testimony.
Sufficient evidence supported the jury's finding that robbery was one of the Bounty Hunter Bloods' primary activities.
B. For the Benefit of the Gang or in Association with the Gang
Appellants Starnes, Beaver, and Holmes argue that there was insufficient evidence that the robbery was committed "for the benefit of" the Bounty Hunter Bloods, as required for the gang enhancement under section 186.22, subdivision (b)(1). "[T]he Legislature included the requirement that the crime to be enhanced be committed for the benefit of, at the direction of, or in association with a criminal street gang to make it 'clear that a criminal offense is subject to increased punishment under the . . . Act only if the crime is "gang related."' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 60.)
"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). [Citations.]" (People v. Albillar, supra, 51 Cal.4th at p. 63.) Such expert opinion would include "expert opinion that the murder of a nongang member benefited the gang because 'violent crimes like murder elevate the status of the gang within gang culture and intimidate neighborhood residents . . . .'" (Ibid., quoting People v. Vazquez (2009) 178 Cal.App.4th 347, 354.) The gang expert testified that a violent sexual attack by three gang members would elevate their individual reputation and that of the gang, as it would be perceived as members of the gang conducting a rape, which goes out into the community and elevates the gang's reputation for violence. (Albillar, at p. 63.) The victim knew that at least two of the assailants were gang members. (Ibid.)
Holmes argues that the defendants did not flash gang signs, wear gang clothing, shout out the gang name, or do anything to "boost" the gang's reputation during the robbery. The only witness was Chavez, and she testified that she did not know that they were gang members. But this does not necessarily mean that there was insufficient evidence that the crime benefited the gang. It is not a requirement that the victim of the crime know that the perpetrators are gang members. It is sufficient if the evidence shows that the commission of the crime would benefit the gang, and in this case the expert testified that it made no difference that none of the defendants announced their gang membership during the crime. The location of the crime, close to the center of the gang territory, would nevertheless make the public assume that the Bounty Hunter Bloods committed the crime, as the gang members could quickly get out of sight. Their reputation would rise in the public at large and also with rival gangs such as the Grape Street Crips. The individual status of the defendants and of the Savage Squad Clique would rise within the gang. This constituted testimony that the crime "'put[] notches in their reputation . . . [T]he overall entity benefits and strengthens as a result of it' . . . [and] 'rais[es] the[] level of fear and intimidation in the community.'" (People v. Albillar, supra, 51 Cal.4th at p. 63.) The prosecution in this case argued that the gang benefited, as the reputation of individual members and of the gang would rise with the commission of the armed robbery, satisfying the "deep-seated need for respect." The gang's enhanced reputation would intimidate the community, assist the gang in future crimes, and the Savage Squad Clique would establish itself in the gang. Substantial evidence supported the conclusion that the robbery was committed for the benefit of the Bounty Hunter Bloods.
The prosecution argued that the refusal of the grape Swishers was a sign of the Bounty Hunter Bloods' enmity with the Grape Street Crips.
A crime is also gang related if it is committed "in association with" a gang, where the defendants "relied on their common gang membership and the apparatus of the gang." (People v. Albillar, supra, 51 Cal.4th at p. 60.) Officer Hamaoka testified that the robbery was in association with a gang, because the participation of all the defendants was necessary to secure the success of the armed robbery, with each defendant playing a role. This testimony "adequately described the relationship between the gang and the current crime[]. Because each defendant was a member of the [gang], he could and did rely on the others' cooperation in committing the offense[]." (Id. at p. 61.) The prosecution in this case argued that the robbery was committed in association with the Bounty Hunter Bloods, as the four defendants were all members, worked with each other during the robbery, each had a role in the crime, and associated before and after, leaving together and heading to Nickerson Gardens. This argument was supported by substantial evidence. The jury could properly have found that the defendants committed the robbery "in concert," not only actively participating but relying on their common gang membership in association with the gang, as there was "substantial evidence that defendants came together as gang members to [commit the crime] and, thus, that they committed these crimes in association with the gang. [Citations.]" (Id. at pp. 61-62.) Substantial evidence also supported the conclusion that the robbery was committed in association with the Bounty Hunter Bloods.
Beaver acknowledges that People v. Albillar, supra, 51 Cal.4th at pp. 65-68, disagreed with two federal appellate opinions construing section 1186.22, subdivision (b)(1) to require evidence that a defendant possessed specific intent to facilitate other criminal conduct of the gang, apart from the defendant's crimes. (See Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1101; Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, 1079.) He asserts the argument for federal preservation purposes.
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III. The trial court did not abuse its discretion in denying bifurcation.
Holmes argues that the trial court abused its discretion and violated his constitutional rights when it denied the appellants' motion to bifurcate the gang enhancement allegation. We disagree.
Before testimony began and outside the presence of the jury, all four appellants moved to bifurcate the gang enhancement allegation. Watts's counsel argued that the only gang evidence was the four defendants' membership, gang evidence was highly prejudicial, and nothing in the commission of the crime was specific to gang activity. The prosecution argued that the location was at the hub of the gang territory, the men refused the grape cigars, and the four were associating as gang members to commit the robbery. Holmes's counsel argued that the issue in Holmes's case was identity, and he "was not there" and had no tattoos, so it would be especially prejudicial to him to have gang testimony. The trial court denied the motion to bifurcate, stating that based on the preliminary hearing the prosecution's theory was that the defendants worked in conjunction with each other to collect assets for the gang, and that "of course it's prejudicial, I agree, that's the nature of a gang allegation."
While "[t]he Legislature itself has specifically recognized the potential for prejudice when a jury deciding guilt hears of a prior conviction . . . . the Legislature has given no indication of a similar concern regarding enhancements related to the charged offense, such as a street gang enhancement." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) "Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (Id. at pp. 1049-1050.) Further, in instances where evidence would be inadmissible at the trial of the substantive crime as unduly prejudicial when no gang enhancement is alleged, the court may still deny bifurcation. (Id. at p. 1050.) "[T]he trial court's discretion to deny bifurcation of a charged gang enhancement is similarly broader than its discretion to admit gang evidence when the gang enhancement is not charged." (Ibid.)
The gang evidence was relevant in this case to prove the motive for the robbery and to prove the participation of each of the four defendants in the coordinated effort. Chavez identified each of the defendants as present at the robbery. The gang evidence showed the robbery was a coordinated act by the four gang members and helped the jury understand why the men acted together. (See People v. Hernandez, supra, 33 Cal.4th at pp. 1050-1051.) Holmes argues that he was merely a bystander, but the evidence showed that he went into the store with the other defendants, stood by the door, wore a wig, expressed no surprise during the robbery, left with the others, and walked away toward Nickerson Gardens with them. His statement to Chavez, "It's nothing against you" also suggests that he was speaking on behalf of the robbers. Given this evidence, the jurors could easily conclude that Holmes was an aider and abettor who "'"intentionally contributed to the accomplishment of the crime"'" and shared in the criminal purpose. (People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1415, overruled on other grounds in People v. Arias (2008) 45 Cal.4th 169, 182). The gang testimony was relevant on this point and not so prejudicial that its prejudice outweighed its probative value, as it was not unduly inflammatory in comparison to the evidence that the four defendants used a gun to rob a lone cashier. Especially given the court's broader latitude to deny bifurcation when the gang enhancement is charged, appellants have not established that there was a substantial danger of prejudice requiring separate trials. The court did not abuse its discretion, and did not violate Holmes's constitutional rights, as the trial was not rendered fundamentally unfair.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
ROTHSCHILD, Acting P. J.
CHANEY, J.