Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Nos. 160215B & 151780, Ronn Couillard, Judge.
Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Virna L. Depaul, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Cornell, J. and Kane, J.
A jury found appellant Johnny Gabriel Gutierrez guilty of two counts of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)). As to the first count, the jury found true that the assault resulted in great bodily injury to the victim (§ 12022.7), and as to both counts the jury found true that the assault was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A) & (C)). In a bifurcated proceeding, appellant waived a jury trial on allegations of prior serious felony convictions for purposes of section 667, subdivision (a) and the “three strikes law” (§ 1170.12). The trial court found the prior conviction allegations to be true. Appellant was sentenced to a total of 27 years in prison, and now appeals, claiming that the gang enhancements were not supported by substantial evidence. For the reasons that follow, we affirm the judgment and order correction of a clerical error in the abstract of judgment.
All statutory references are to the Penal Code
FACTS
On February 25, 2006, H.J. and his friend J.O. attended a birthday party for H.J.’s nine-year-old nephew. The party was held at Maria J.’s (Maria), H.J.’s sister, home, located in the territory of a regional subset of the Norteno gang called the Varrios Farmas Catorce (VFC.) The VFC identify themselves with the color red. J.O. wore a blue checkered shirt to the party. J.O. testified he is not in the Norteno’s rival gang, the Sureno gang, but is aware that the Surenos identify with the color blue.
In the record, “Norteno” and “Varrios Farmas Catorce” are terms often used interchangeably to signify a gang descended from the Nuestra Familia gang and identified by red, the number 14, and located in a northern region relative to their rivals. The VFC gang is a local branch in Farmersville of the Norteno gang.
While eating in his sister’s open-door garage with J.O. and three or four other friends, H.J. noticed a grown man with a red handkerchief wrapped around his hand. This man went in and out of a neighbor’s house while talking on a telephone and looking toward Maria’s house. After this man talked on the phone, 10-12 more men arrived in front of the neighbor’s house. Maria saw one man at this house and then saw more men slowly start to arrive. The men had red rags and were drinking and looking toward her house. She knew the red rags signified the Nortenos because red is “all over the place” in Farmersville.
At around 7:15 p.m., J.O. stepped out of the garage toward the driveway to answer a cell phone call. H.J. went into the house to change. J.O. testified that just as he went out to answer the phone, he was attacked. He fell down and “covered up” until the attack stopped. When H.J. came out of the house, he saw about four males kicking and hitting J.O., who was in a fetal position. H.J. recognized one of the assailants as Michael Herrera, whom Farmersville Police Officer Mosqueda identified as being a known member of the VFC and who had been seen associating with appellant numerous times. H.J. pulled one of the assailants off of J.O., turned halfway around, was struck in the head by an iron folding chair, and fainted.
Maria testified that around 7:15 p.m., one of H.J.’s friends came into the house and said, “‘Call the police, they are fighting, they are fighting.’” When Maria went outside, she saw a group of about 10 men fighting. They were all wearing red, which indicated they were Nortenos. Four men were attacking J.O. with their feet and hands. Maria saw appellant, James Sanchez, and a third assailant attacking H.J., who was on the floor, bleeding. The two other assailants ran off, leaving appellant, who continued to attack H.J. Appellant kicked and stomped on H.J.’s head. Maria recognized appellant because he used to associate with another one of her brothers and used to come by her family’s home. She knew he was a Norteno. She noticed appellant had a red bandanna.
Maria saw appellant stomp on H.J.’s head about three times. She yelled at him, addressed him by name, and asked what he was doing. Appellant looked at her with an apparent expression of shock, stopped stomping on H.J’s head, and fled.
The next day, Farmersville Police Officer McGuire went to appellant’s house and found him standing in the front yard with a large group of northern gang members, including James Sanchez. McGuire knew these two men from a previous arrest in 2005 for spray-painting gang indicia on a Minute-Mart wall. McGuire arrested appellant and Sanchez for their alleged involvement in the incident the night before. McGuire confiscated appellant’s red shoelaces, a red bandanna folded in his right front pocket, and a red baseball cap with Norteno gang symbols in the inside label. McGuire confiscated Sanchez’s red shoelaces, baseball cap with a Norteno gang symbol embroidered on the front, and a belt with “F” engraved on the buckle standing for “Farmas,” a shortened way of saying VFC.
Maria subsequently positively identified appellant in a photographic lineup as the man who attacked her brother.
At trial, Detective Sanchez, a gang expert, testified concerning the VFC gang. He opined that VFC is a criminal street gang, and that in his expert opinion, the charged offenses against appellant were committed in association with and for the benefit of the VFC gang.
Appellant testified that he is a VFC member, views anybody in a rival gang as an enemy, and associates with James Sanchez. However, he denied assaulting H.J. for gang-related reasons. The night of the incident, appellant was “drunk, relaxed, [and] swaggering a little bit” while walking around for 45 minutes, trying to find a party. He heard yelling at Maria’s house, walked around the block again, and then saw a physical fight at the residence. He jogged over, not knowing it was Maria’s house, because he thought one of his friends might be involved in the altercation. Appellant was hit, started hitting the closest person to him, whom he assumed had hit him, but never kicked or stomped anyone. Appellant denied that any of his gang members were there or that he fought to promote the gang effort.
DISCUSSION
Appellant claims there is insufficient evidence to support the jury’s true finding on the gang enhancements. When asked to decide the sufficiency of evidence, an appellate court reviews the entire record and determines whether there is disclosed substantial evidence that could lead a reasonable trier of fact to find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value.” (People v. Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) The appellate court does not reweigh the evidence (People v. Culver (1973)10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). The substantial evidence standard of review applies to section 186.22 gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
At issue in this case is the sufficiency of evidence in regard to certain provisions of the California Street Terrorism Enforcement and Prevention Act, also known as the STEP Act, enacted by the Legislature in 1988. (§ 186.20 et seq.) Section 186.22 imposes penal consequences when crimes are 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.” (§ 186.22, subd. (b)(1).) For a gang enhancement to be found true, there must be substantial evidence supporting a finding of the existence of a “criminal street gang,” whose members engage in a “pattern of criminal gang activity.” (In re Jose T. (1991) 230 Cal.App.3d 1455, 1462.) A “‘pattern of criminal gang activity’ ... can be established by two or more incidents, each with a single perpetrator, or by a single incident with multiple participants committing one or more of the specified offenses.” (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003.) The two or more specified criminal offenses are often referred to as “predicate offenses” to describe the component crimes that constitute the statutorily required “pattern of criminal gang activity.” (People v. Gardeley (1996) 14 Cal.4th 605, 610 (Gardeley).)
In this case, appellant suggests that the prosecution’s case rested solely on the expert’s testimony and appellant’s membership in the VFC. As noted, we review the entire record, and we find appellant incorrectly characterizes the prosecution’s case. In proving that appellant committed a violent assault “for the benefit of, at the direction of, or in association with any criminal street gang,” (§ 186.22, subd. (b)(1)), with the requisite intent, the prosecution provided evidence from the testimony of a gang expert as well as the testimonies of a witness, a victim, the arresting officers, and appellant.
The question becomes whether the evidence provided from the whole record establishes the elements of section 186.22. To prove an enhancement under subdivision (b) of the statute, the prosecution must show a criminal street gang exists by proving three factors: (1) there exists an ongoing association of three or more persons that shares a common name or common identifying sign or symbol; (2) the group has as one of its “primary activities” the commission of specified criminal offenses; and (3) the group engages through its members in a “pattern of criminal gang activity.” (§ 186.22, subd. (f).) In addition, the prosecutor must prove the felony was committed for the benefit of, at the direction of, or in association with a criminal street gang, and with the specific intent to promote, further, or assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1).)
Appellant does not appeal on the basis that the VFC gang does not have more than three persons sharing a common name, sign, or symbol, but rather argues that the prosecution has failed to provide enough evidence to prove (1) the “primary activities” of the VFC gang and (2) that appellant’s assault was committed for the benefit of or in association with the VFC gang. We examine each in turn.
We do not read appellant’s briefs as challenging the evidence with respect to the “pattern of criminal gang activity” requirement.
A. Sufficiency of Evidence as to Primary Activities of the VFC Gang
In order to prove the elements of the criminal street gang enhancement, the prosecution may present expert testimony on criminal street gangs. (Gardeley, supra, 14 Cal.4th at pp. 617-620.) In this case, the prosecution presented the Farmersville Police Department gang investigator, Detective Sanchez. He testified that in his expert opinion, the primary activities of the VFC are violent crimes and property damage. Detective Sanchez specifically named felony assault and felony vandalism as examples of these activities. These are two of the offenses enumerated in subdivision (e) of section 186.22. (§ 186.22, subd. (e)(1) & (20).) Sanchez based this opinion on contacts with approximately 70 gang members in Farmersville, his personal investigations of at least 15 crimes committed by VFC gang members, as well as information from other officers’ reports about VFC gang activity.
At trial, no objection was made in regard to Detective Sanchez’s qualifications as an expert witness. Because objections concerning the qualifications of an expert witness cannot be made for the first time on appeal (Bundy v. Sierra Lumber Co. (1906) 149 Cal. 772, 775), we assume Detective Sanchez is a qualified gang expert.
The basis of Detective Sanchez’s testimony closely parallels the expert witness’ testimony in Gardeley,in which a gang expert testified to the primary activities of a gang based on conversations he had with the defendant and other gang members, his own investigations of crimes committed by gang members, and information from his colleagues. In Gardeley, the California Supreme Court concluded that a jury could reasonably find all elements of subdivision (f) of section 186.22 satisfied, including the primary activities prong. (Gardeley, supra, 14 Cal.4th at p. 620.) Appellant argues Detective Sanchez failed to provide substantial evidence of the VFC’s primary activities. We disagree. In People v. Sengpadychith (2001) 26 Cal.4th 316, 323, the Supreme Court ruled that evidence of past or present crimes alone is not necessarily sufficient to prove a gang’s primary activities. The court also ruled that expert testimony might be sufficient proof of the gang’s primary activities and cited the expert testimony in Gardeley as an example. (Id. at p. 324.) We find Detective Sanchez’s testimony was similar to the testimony given in Gardeley and could lead a trier of fact reasonably to conclude that the primary activities of the VFC gang are violent crimes and property damage.
B. Sufficiency of Evidence to Determine whether Appellant’s Felony Assault was for the Benefit of or in Association with VFC Gang Members
We turn to whether evidence established appellant committed the assaults “for the benefit of, at the direction of, or in association with” the VFC, and with the intent to promote, further, or assist in gang members’ criminal conduct. (§ 186.22, subd. (b).) Appellant admitted VFC membership. There is no conflict in regard to whether he was present during the assault; the question is whether he was there in association with a criminal street gang. In addition to identifying appellant as an assailant, Maria testified she saw James Sanchez attacking her brother. According to Detective Sanchez, James Sanchez is a VFC gang member, and according to Officer McGuire, James Sanchez was found with appellant wearing VFC colors and lettering at the time of arrest. During his testimony, appellant admitted associating with James Sanchez. H.J. identified a third assailant as Michael Herrera, whom Officer Mosqueda identified as being a known VFC gang member. Officer Mosqueda also testified Herrera had been seen associating with appellant numerous times. Maria further testified that all the assailants were wearing red, the color of the VFC gang.
Although appellant testified otherwise, a reasonable trier of fact could conclude other VFC gang members were present during the crime, and appellant acted in concert with them. Therefore, a reasonable trier of fact could conclude appellant’s assault was committed in association with a criminal street gang. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1331-1332; People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)
While finding that appellant committed the crime in association with a criminal street gang with the requisite intent, is enough to find the gang enhancement allegation true (see People v. Morales, supra, 112 Cal.App.4th at p. 1198), we will also review the evidence in regard to whether appellant committed the assault for the benefit of the VFC gang. The trier of fact weighed the evidence. On one hand, Maria testified the men wearing red who congregated at a neighbor’s house, were the same men involved in the assault crimes, and Maria, H.J., and J.O. testified J.O. was wearing the VFC’s rival gang color of blue. On the other hand, appellant testified he was only present at the fight because he thought a friend was involved. Detective Sanchez, Officer McGuire, and Maria testified that this neighborhood was VFC territory and that red was its identifying color. Detective Sanchez further testified that the VFC gang members often spray paint their letters, name, and colors around Farmersville to signify that the area is their territory.
Detective Sanchez said that wearing blue in a VFC area could cause conflict resulting in an assault or death. Appellant testified that he would view anyone in a rival gang as an enemy. Detective Sanchez testified that gang members are territorial, and when a perceived rival gang member is in their territory, gang members will create conflict to drive the rival out, intimidate him, instill fear in him, or injure him. This testimony is not prohibited by the ruling in People v. Killebrew (2002) 103 Cal.App.4th 644. In Killebrew, this court prohibited expert testimony professing that a particular individual had specific knowledge or possessed a specific intent. (Id. at p. 658.) Detective Sanchez did not testify to the subjective knowledge of appellant; he testified to common behavioral patterns of the VFC gang such as their adverse reaction to the rival gang’s color, blue.
J.O. was wearing blue the night of the assaults; H.J. testified to seeing a man with a red handkerchief around his hand use the telephone in front of a neighbor’s house; H.J. and Maria testified to seeing more men wearing red slowly congregate at that house; Maria identified the assailants as those men she saw at the neighbor’s house; and appellant admitted his involvement in the fight.
Once again, we do not re-appraise witness credibility or reweigh evidence, and we find there is sufficient evidence for the trier of fact reasonably to conclude that appellant became involved in the crime to assert his gang’s territorial claims against someone wearing the rival gang’s color, blue. Therefore, a reasonable trier of fact could conclude that appellant’s assault was committed for the benefit of the VFC gang.
As appellant notes, and respondent does not dispute, the abstract of judgment contains a clerical error, which we will direct the trial court to correct.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment showing that the five-year enhancement cited in item No. 3 of the abstract of judgment filed April 4, 2007, was imposed under Penal Code section 667, subdivision (a)(1), and to forward a certified copy of the amended abstract of judgment to the appropriate authorities.