Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA701094. Jon D. Ferguson, Judge. Affirmed.
John Lanahan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Rhonda Cartwright-Ladendorf and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
A jury found defendant Albert R. Guzman guilty of robbery in the second degree and found true the gang enhancement charge requiring that the crime be 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 the gang. Defendant was sentenced to five years in prison on the robbery conviction, with a consecutive prison sentence of 10 years for the gang enhancement.
At trial, A.M., the victim, testified that he was standing at the Fontana Metrolink station waiting for a bus when four men, who appeared to be gangsters, approached and surrounded him and asked him “where [he] was from.” He took this to mean, “what gang are you from,” to which he responded, “from nowhere.” A.M. had an injured leg and was afraid of being attacked, so he did not resist when defendant took a bag containing two DVD’s from A.M.’s hands and $205 from his wallet. The individuals ran a few blocks away to Nuevo Avenue, at which point defendant broke company with his accomplices. Days later, A.M. saw defendant in a store where he was working and called the police; defendant was arrested and A.M. positively identified him as the man who approached him and took his property during the robbery.
At his first court appearance, defendant sought to invoke his right to self-representation. The trial judge expressed concern as to whether defendant knew what he was doing, but eventually gave in and granted defendant in pro. per. status for the upcoming preliminary hearing. After the preliminary hearing, the court revoked defendant’s in pro. per. status, saying that he “didn’t do a very good job.” Defendant did not object or reassert his right to self-representation until after the trial was complete.
At trial, the prosecution called Officer Marc Gonzales of the Fontana Police Department to testify as an expert witness regarding gangs. Officer Gonzles gave extensive testimony regarding gang culture in general, as well as regarding defendant and the criminal street gang “Ontario Varrio Sur” (OVS) specifically. Several other officers testified that defendant had self-admitted to being a member of OVS and that he had been seen “hanging out” around the Metrolink station without boarding a bus or train.
Defendant appeals his conviction for robbery, alleging an improper revocation of his right to self-representation at the preliminary hearing. He argues that because he was competent to invoke the right, did not obstruct court proceedings, and did not affirmatively waive his right to self-representation, the trial judge erred in revoking his in pro. per. status. Defendant also alleges there was insufficient evidence to prove the gang enhancement beyond a reasonable doubt. He argues that the robbery was not committed for the benefit of the gang because there was no direct evidence showing that he shared the spoils of the robbery with gang members, and there was also insufficient evidence to show he committed the robbery with the specific intent to further, promote, or assist in criminal conduct of the gang.
We agree that the revocation of defendant’s in pro. per. status at the conclusion of the preliminary hearing was inappropriate, but decline to reverse on that ground. Defendant failed to object to the reappointment of the public defender and made no mention of a desire to represent himself at any other time before or during trial. By failing to speak up, defendant waived his right to self-representation and is precluded from alleging error on appeal. We also decline to reverse on defendant’s claim of insufficient evidence; the jury’s conclusion that the elements of the gang enhancement statute were proven beyond a reasonable doubt is supported by substantial evidence.
II. BACKGROUND
The victim in this case, A.M., testified that on June 29, 2007, at approximately 4:50 p.m., he was standing alone at the Metrolink train station on Orange Way in Fontana waiting for a bus. He was holding a Walmart bag containing two DVD’s he had just purchased when four men he did not know approached and surrounded him. A.M. identified defendant as the individual who approached him and spoke first, asking where he was from. A.M. assumed he was being asked what gang he was from, and he answered, “from nowhere,” by which he meant he was not a gang member.
A.M. testified that the individuals looked like gang members, and although he did not see any weapons, he was afraid of being attacked or having a weapon pulled on him because the men wore baggy pants and stood within two feet of him with their hands in their pockets. After he told the men that he was from nowhere, defendant took A.M.’s bag of DVD’s and pulled A.M.’s wallet from his pocket by a chain connected to his belt, removing $205. A.M. did not resist because he was outnumbered and feared being attacked by the four men at once, and he did not try to run away because he had an injured leg. He testified that other people were waiting for trains or buses nearby. After taking the money and DVD’s from A.M., the men ran eastbound along Orange Way about two blocks to Nuevo Avenue. Defendant broke company with the other men and ran away at that point, disappearing from A.M.’s view at Nuevo Avenue, but the other three men stood at that location until after A.M. had left on his bus.
A.M. also testified that about a week later, on July 4, 2007, around 4:50 p.m., while working at a local Stater Bros. market, he saw defendant in the store and immediately recognized him as the person who had robbed him just days earlier. A.M. called the police and gave a description of defendant, and Fontana Police Officer Edward Stewart responded to the intersection of Nuevo Avenue and Valencia. Officer Stewart arrested defendant as he was walking southbound on Nuevo Avenue towards his residence. A.M. was brought to the scene of the arrest in another police car and positively identified defendant as the man who had robbed him.
The defense, on cross-examination of the victim, was able to point out some discrepancies in A.M.’s story. Although he testified that all four robbers were taller than him, A.M. later testified that the two he was able to see were shorter than he was and that he never gave a description of the two men who stood behind him. However, Officer Joshua McIntire testified that when A.M. gave a statement right after the crime he was able to describe each of the four robbers. A.M. did not remember noticing defendant’s tattoos when he was robbed, he could not say specifically how he had recognized defendant days later in the Stater Bros. market, and he appeared unsure as to what time he gave his statement to Officer McIntire after the robbery.
At defendant’s first court appearance on July 17, 2007, he expressed a desire to represent himself at trial. The judge asked defendant what he knew about the Evidence Code, if he knew what a “strike” was, if he knew how to cross-examine witnesses, make and respond to objections, and how to go about proving his innocence. He expressed concern as to whether defendant knew what he was doing in light of his lack of knowledge regarding substantive and procedural law and the possibility that he would be sentenced to as many as 15 years in prison if convicted. Defendant, however, was “adamant” in his desire to proceed in pro. per., repeatedly stating that he knew what he was doing and would rather present his case himself than be represented by someone who has cases “brought to them on a daily basis, and they can barely remember me when I come the next time.”
Defendant was asked by the court if it was true that he wanted to represent himself, to which he responded, “Yes.” The public defender stated: “The issue is he wanted his police report today. I said, ‘I can’t give it to you today. I have to redact it, first of all, and I have 18 clients today. It’s not going to happen.’ He wants to go pro[.] per.” Later, defendant said: “It’s my right, and I know I’m looking at the time, and I see the time in front of me, and I know what decision I’m making here, and I’m willing to go forward.” After facing more resistance from the trial judge, defendant stated: “I’m trying to exercise my right.”
The judge explained that if defendant represented himself, he would be held to the same standards as any attorney. Despite defendant’s insistence that he wished to represent himself, the judge initially denied his Faretta motion, but then decided to grant defendant in pro. per. status for the upcoming preliminary hearing. The colloquy reads as follows:
Faretta v. California (1975) 422 U.S. 806 (Faretta).
“THE COURT: Your Farretta [sic] request to represent yourself today is denied. The fact is, I think you’re subjecting yourself to extreme situations.
“THE DEFENDANT: I’m not subjecting myself because I know what I’m doing and I know I’m taking it in my hands.
“THE COURT: I don’t think you know what you’re doing.
“THE DEFENDANT: Well, I haven’t been—I haven’t had the chance to try. And if you’re rejecting my rights, then
“THE COURT: Okay. Look, you want to do that, I’ll let you do that for the preliminary hearing. I’m not going to relieve the public defender at this point.”
Shortly thereafter the court went on to say:
“THE COURT: Well, I tell you what—you want to do the prelim[inary hearing]?
“THE DEFENDANT: Yes.
“THE COURT: Do you know what a preliminary hearing is?
“THE DEFENDANT: Yes.
“THE COURT: Okay. I’m going to relieve the public defender at this point.”
Defendant cross-examined two witnesses called by the prosecution during the preliminary hearing: the victim and Officer Gonzales. After ordering defendant held over to answer for the robbery and gang enhancement charges, the court said:
“THE COURT: So I’m not going to hold him on the false imprisonment, okay?
“At this point I’ll set it for further proceedings in Department F2 on July 26th, and I’m going to reappoint the public defender.
“And let me tell you something, [defendant], you were adamant about wanting to represent yourself.
“THE DEFENDANT: Uh-huh.
“THE COURT: You didn’t do a very good job.
“Maintain the exhibits in the court file pending further proceedings.
“July 26th, 8:30.
“[THE PROSECUTOR]: Thank you.
“THE DEFENDANT: So I’m being appointed a public defender then?
“THE COURT: Yes, you sure are. [¶]... [¶]
“[THE PROSECUTOR]: Your Honor, on [defendant], I’ll retain the discovery or put it in the court file.
“THE COURT: Maintain it in the court file. There’s no stipulation to return it.
“[THE PROSECUTOR]: The discovery.
“THE DEFENDANT: Can I request that discovery?
“THE COURT: No.
“THE DEFENDANT: It was handed down to me.
“THE COURT: I know, but I’m going to give that back to your attorney. I appointed the public defender to represent you, okay?”
Defendant was present in court for a total of six appearances between the preliminary hearing and the trial, and at no time did he object to the reappointment of the public defender. He did not make another request for self-representation until after the jury had returned a conviction on the robbery and gang enhancement charges, at which point he was allowed to represent himself for the purposes of a motion for new trial and sentencing. He admitted he had been unprepared for certain things during the preliminary hearing, but said he had been able to study more since that time.
III. DISCUSSION
A. Defendant’s Faretta Motion
The Sixth Amendment to the United States Constitution, applicable to state criminal proceedings through the due process clause of the Fourteenth Amendment, ensures to every defendant two mutually exclusive rights: the right to be represented by counsel at all critical stages of a criminal prosecution and the right to forego assistance of counsel and represent himself or herself by presenting a defense personally. (People v. Marshall (1997) 15 Cal.4th 1, 20; Faretta, supra, 422 U.S. at pp. 818-819.) As the United States Supreme Court made clear in Faretta: “The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” (Faretta, supra, at p. 819, italics omitted.)
1. Defendant Properly Invoked His Right to Self-representation
In determining on appeal whether defendant invoked the right to self-representation, we examine the entire record de novo. (People v. Stanley (2006) 39 Cal.4th 913, 932; People v. Dent (2003) 30 Cal.4th 213, 217-218; People v. Weeks (2008) 165 Cal.App.4th 882, 887.)
“‘A trial court must grant a defendant’s request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]’” (People v. Stanley, supra, 39 Cal.4th at pp. 931-932.)
First of all, defendant’s Faretta request was timely. California courts have held that in order to invoke the constitutional right to self-representation, it must be asserted within a reasonable time before the commencement of trial. (People v. Stanley, supra, 39 Cal.4th at p. 932; People v. Marshall (1996) 13 Cal.4th 799, 827; People v. Rudd (1998) 63 Cal.App.4th 620, 625.) Defendant expressed his desire to represent himself at an appearance before the preliminary hearing had even occurred, and was granted in pro. per. status. Defendant’s request was made at his earliest possible convenience and therefore could not have been untimely.
Secondly, defendant’s request for in pro. per. status was unequivocal. The right to self-representation is waived unless the defendant makes an articulate, unequivocal, and unmistakable demand to proceed pro se. (People v. Windham (1977) 19 Cal.3d 121, 127-128; Faretta, supra, 422 U.S. at pp. 835-836.) At defendant’s first court appearance, both defendant and the public defender expressed to the trial judge defendant’s desire to represent himself. Defendant stated that it was his right to represent himself and he wished to exercise that right. He articulately and coherently explained why he wanted to go in pro. per.—because the public defender was too busy to spend enough time on defendant’s case, and he felt he could better present his own defense. His desire to represent himself was unmistakable as he stated: “I see the time in front of me, and I know what decision I’m making here, and I’m willing to go forward.” The record of defendant’s conversation with the trial court clearly details his articulate and unequivocal request for in pro. per. status and his unmistakable desire to represent himself rather than have the public defender represent him.
Finally, defendant’s request was made competently, knowingly, and intelligently after being apprised of the dangers of self-representation. “When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits. [Citations.] Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” (Faretta, supra, 422 U.S. at p. 835.)
The record in this case shows that the trial judge was reluctant to grant defendant in pro. per. status and engaged in a fairly long conversation with defendant in order to explain the dangers of self-representation and to dissuade him from pursuing that path. The court explained that defendant would be held to the same standard as any attorney and would not receive special treatment simply because he was representing himself. Defendant was aware he was facing 15 years in prison, and the court explained that it would likely be difficult for him to prove his innocence because he had little knowledge of substantive and procedural law and because he would be going up against an experienced prosecutor. After being made aware of the potential consequences of proceeding in pro. per., defendant still expressed a desire to represent himself.
The trial court apparently held reservations as to whether defendant was making his request for self-representation knowingly. Defendant said, “I know what I’m doing and I know I’m taking it in my hands,” to which the trial judge responded, “I don’t think you know what you’re doing.” The court’s reluctance to grant defendant in pro. per. status seems primarily to have been based on his lack of knowledge regarding substantive law and trial practice. However, as the United States Supreme Court made clear in Faretta, the skill of an attorney is not required to knowingly and intelligently waive the right to assistance of counsel—the defendant’s “technical legal knowledge... [is] not relevant to an assessment of his knowing exercise of the right to defend himself.” (Faretta, supra, 422 U.S. at p. 836; People v. Dunkle (2005) 36 Cal.4th 861, 908, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Similarly, in this case, defendant’s level of technical legal knowledge was irrelevant to an assessment of whether he had knowingly and intelligently made a request to represent himself.
There is also no evidence that defendant was incompetent to invoke his right to self-representation. The record shows he has a 10th grade education and his responses to the court’s questions were coherent and generally appropriate. “[A] trial court may not measure a defendant’s competence to waive his right to counsel by evaluating the defendant’s ‘technical legal knowledge’ [citation] or his ability to represent himself [citation]. The right to self-representation may be invoked by any defendant competent to stand trial. [Citation.]” (People v. Doolin, supra, 45 Cal.4th at p. 454.) There was never any question as to defendant’s competence to stand trial, and he was therefore competent to request self-representation and proceed in pro. per.
For the foregoing reasons, we find that defendant properly invoked his right to self-representation by making a competent, knowing, and intelligent request for self-representation in a timely and unequivocal manner.
2. The Trial Court Erred in Revoking Defendant’s Self-representation
Defendant did not obstruct court proceedings or fail to abide by rules of procedure and courtroom protocol, and his behavior at the preliminary hearing did not threaten to compromise the court’s ability to conduct a fair trial, making the revocation of his in pro. per. status inappropriate. In People v. Rudd, supra, 63 Cal.App.4th at page 631, the court identified two instances in which the United States Supreme Court held that a trial judge who granted in pro. per. status may later withdraw it. The Supreme Court held in Faretta that a trial judge may terminate self-representation by a defendant who “deliberately engages in serious and obstructionist misconduct.” (Faretta, supra, 422 U.S. at pp. 834-835, fn. 46.) In McKaskle v. Wiggins (1984) 465 U.S. 168, 173, the Supreme Court held that a defendant has the right to represent himself or herself so long as the defendant is “able and willing to abide by rules of procedure and courtroom protocol.”
Although the “[t]ermination of the right of self-representation is a severe sanction and must not be imposed lightly... we believe trial courts should be given sufficient discretion when confronted with behavior... that threatens to compromise the court’s ability to conduct a fair trial.” (People v. Carson (2005) 35 Cal.4th 1, 7.) The problem with the court’s revocation of defendant’s in pro. per. status is that there was no threat to the court’s ability to conduct a fair trial. A defendant will usually fare better with the guidance of skilled and experienced counsel, but “[t]he defendant, and not his lawyer or the State, will bear the personal consequences of a conviction.... And although he may conduct his own defense ultimately to his own detriment, his choice must be honored....” (Faretta, supra, 422 U.S. at p. 834.)
The transcript of defendant’s preliminary hearing shows that, in the words of the court, “some of [his] questions were germane, some were not.” However, there is nothing in the record to suggest any deliberate obstructionist conduct by defendant. He performed cross-examination of the victim and Officer Gonzales in an orderly manner. Although it was clear that he was unaware of some courtroom procedures and didn’t understand some of the terms used by the judge, defendant made every effort to conform his behavior to the procedure and protocol of the court. He did not claim to be unprepared or purposely obstruct court proceedings in any other way. He did not engage in the “Faretta game” by “juggling his Faretta rights with his right to counsel interspersed with Marsden motions” in an effort to delay trial. (People v. Williams (1990) 220 Cal.App.3d 1165, 1170.) Defendant in no way engaged in obstructionist misconduct, and certainly not intentional and serious misconduct warranting a revocation of his right to self-representation.
People v. Marsden (1970) 2 Cal.3d 118.
There is also no evidence in the record to suggest that defendant was unable or unwilling to abide by the rules of procedure and courtroom protocol. Although the trial judge had to explain a few things to defendant during the preliminary hearing, this was not a sufficient ground for revoking defendant’s in pro. per. status. Faretta itself held that a trial court may appoint “standby counsel” to assist a defendant in representing himself. (Faretta, supra, 422 U.S. at p. 834, fn. 46; McKaskle v. Wiggins, supra, 465 U.S. at p. 170.) If the trial court had been concerned about defendant’s ability to follow procedural rules and abide by courtroom protocol, standby counsel should have been appointed to advise defendant in those matters. A wholesale revocation of a defendant’s right to self-representation is inappropriate unless it becomes clear to the court that allowing such a defendant to appear in pro. per. would threaten or compromise the court’s ability to conduct a fair trial. This was simply not the case here, and the court’s revocation of defendant’s in pro. per. status was therefore inappropriate.
3. Defendant Acquiesced to the Reappointment of Counsel and Abandoned His Request for Self-representation, Thereby Waiving His Right to Assert a Sixth Amendment Violation on Appeal
The United States Supreme Court in Faretta recognized that “[a]n unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.” (Faretta, supra, 422 U.S. at p. 821, first italics added.)
“Faretta and McKaskle hold that the Sixth Amendment self-representation right does not exist when a defendant prior to or during trial acquiesces in the assignment or participation of counsel in the defense. [Citations.] Further... McKaskle holds that under certain circumstances waiver or forfeiture of the self-representation right can occur simply when no objection is interposed.” (People v. Rudd, supra, 63 Cal.App.4th at p. 631.)
Furthermore, courts must indulge every reasonable inference against waiver of the right to counsel (People v. Stanley, supra, 39 Cal.4th at p. 933; People v. Marshall, supra, 15 Cal.4th at p. 20), and a defendant’s conduct may indicate an abandonment or withdrawal of a request for a Faretta hearing (People v. Dunkle, supra, 36 Cal.4th at p. 909; People v. Kenner (1990) 223 Cal.App.3d 56, 62). In this case, the trial judge told defendant that he did not do a very good job of representing himself during the preliminary hearing, and he made defendant aware at the end of the hearing that the public defender was being reappointed. Although defendant himself had not affirmatively waived his right to self-representation, in the absence of any indication to the contrary, the court could reasonably have inferred that defendant no longer desired to proceed in pro. per. Defendant also did not object to the appointment of the public defender nor did he renew his request for self-representation at any other time before or during trial. He was present in court for six appearances before trial began, but never used these opportunities to request in pro. per. status. Defendant’s failure to reassert his right to self-representation lends credence to the view that defendant had abandoned his request for self-representation. As the court in Kenner pointed out: “Defendants who sincerely seek to represent themselves have a responsibility to speak up.” (People v. Kenner, supra, at p. 62.)
By waiting until after the trial was complete to request in pro. per. status and admitting at that time that he had been unprepared for the preliminary hearing, defendant also sheds light on the possible reason for his abandonment of his desire to proceed in pro. per. After realizing he had been unprepared and hearing the trial judge’s assessment of his performance at the preliminary hearing, defendant likely rethought his decision to represent himself and decided to accept the appointment of counsel for the purposes of trial. Although defendant argues that reasserting the right to self-representation after trial shows that he maintained a desire to represent himself, this is not convincing in light of the fact that he never mentioned dissatisfaction with the public defender or a desire to proceed in pro. per. after his initial request.
Whether or not defendant maintained a secret desire to continue representing himself, any challenge to the erroneous revocation of his right to self-representation was waived by his failure to object to the reappointment of the public defender. “The California Supreme Court has repeatedly held that constitutional objections must be interposed before the trial judge in order to preserve such contentions for appeal.” (People v. Rudd, supra, 63 Cal.App.4th at pp. 628-629.) “‘“An appellate court will ordinarily not consider procedural defects or erroneous rulings... where an objection could have been but was not, presented to the lower court.... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver.... [I]t is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.”’” (Id. at p. 629, quoting Doers v. Golden Gate Bridge, etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.)
Although defendant, acting as an in pro. per. defendant not versed in the law, may have been unaware that he could object to the court’s reappointment of the public defender to represent him in light of his insistence on self-representation before the preliminary hearing, it seems unlikely he would have remained silent if he still maintained a true desire to represent himself. He even inquired, “So I’m being appointed a public defender then?,” to which the court responded, “Yes, you sure are.” Defendant made no objection and did not reassert his right to self-representation, even at the conclusion of the proceeding when the judge said: “I appointed the public defender to represent you, okay?” A defendant who was as adamant about proceeding in pro. per. as defendant here initially was would have most likely shown at least some resistance to the reappointment of the public defender had he not changed his mind or become unsure about representing himself.
We find that defendant acquiesced to the reappointment of counsel without objection and abandoned his request for self-representation, thereby precluding him from asserting a Sixth Amendment violation on appeal.
B. Sufficiency of Evidence to Prove Gang Enhancement
1. Facts
Officer Gonzales of the Fontana Police Department’s Multiple Enforcement Team, also known as the gang unit, was called to give expert testimony regarding gangs. Officer Gonzales testified he had received training in dealing with gangs and gang graffiti, and that he had investigated over 500 gang-related crimes. He testified that the gang culture is based on respect and described how individuals get into gangs, get nicknames and “put in work” by committing crimes in order to increase their status within the gang. Officer Gonzales stated that gangs rely on fear and intimidation within a community, which they create by committing crimes like robberies, thereby allowing them to control the streets and commit subsequent crimes with the likelihood that fewer people will call the police. He testified that the two tattoos on defendant’s wrists (S.S. on one wrist and I.E. on the other) were common among many Inland Empire and “south side” gangs. He stated that the phrase, “Where are you from?,” was a very common question asked by gang members to initiate a confrontation, often leading to some sort of assault. Officer Gonzales had never had a case where a crime started with the phrase, “Where are you from?,” that was not gang related. He stated that robberies are one of the more common crimes committed by gang members, and the manner in which the robbery of A.M. occurred was pretty standard for robberies involving gang members.
Officer Gonzales testified that gang members “usually act in groups of more than one. They surround the victim so that he can’t leave. One would usually do the talking, take the items, and then they will usually get out of there.... [¶]... There’s been some that have been similar to this one where they stand behind them so that he can’t move, can’t run away. He feels intimidated and gives up his property a little easier.”
Officer Gonzales gave testimony regarding OVS specifically, stating that the gang had originated and was primarily based in Ontario and that there were 700 to 800 documented members, five of which he had contacted personally in Fontana. He said that OVS has a three-tier structure with OVS at the bottom, and most of its members are “soldiers” who have to “put in work” to get promoted. Officer Gonzales described the OVS “gang sign” as putting both hands together with the thumbs and forefingers in the shape of an “O” and stated that he had seen an increase in OVS graffiti in and around the Fontana Metrolink station consistent with a gang attempting to show that it is actively “claiming” new territory. Officer Gonzales said that he and others in his unit had seen an increase in OVS gang members coming into Fontana. He also testified that several documented OVS members had been convicted of various so-called “predicate offenses” under the Penal Code throughout the years 1997 to 2005, and that he could find no activities that OVS engaged in other than criminal activities.
Officer Gonzales also gave testimony regarding defendant based on information obtained from other agencies in the county, as well as field interview cards filled out by officers during conversations with gang members. He stated that, based on his research, defendant had self-admitted to being an OVS gang member five times and his first field interview card from 2002 had a picture attached of defendant displaying the OVS gang sign. Officer Gonzales stated that, in his opinion, the robbery clearly benefited the gang because $205 was taken and gangs often share the spoils of criminal activity. The act of taking charge and removing the items from the victim’s person would have also enhanced defendant’s reputation among the gang.
The prosecution also called two Fontana police officers to testify that on May 17, 2007, they had observed defendant “hanging out” at the Metrolink station in Fontana for about 30 to 45 minutes without boarding a train or bus. Officer Valerie Tripodi was called as a witness for the prosecution and she testified that on April 18, 2007, she spoke with defendant, who admitted to being a member of the criminal street gang OVS, and told her he was known by the moniker, “Little Evil.”
2. There Was Sufficient Evidence for a Reasonable Juror to Find the Gang Enhancement Charge True Beyond a Reasonable Doubt
On review of the sufficiency of evidence to support a criminal conviction, the court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690.) “‘“[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”’” (People v. Welch (1999) 20 Cal.4th 701, 758; People v. Osband, supra, 13 Cal.4th at p. 690.) The substantial evidence standard of review applies to sufficiency of the evidence claims regarding Penal Code section 186.22 gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362, 371; People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) “‘“We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’” (People v. Davis (1995) 10 Cal.4th 463, 509.)
All further statutory references are to the Penal Code unless otherwise indicated.
Section 186.22, subdivision (b)(1) states 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, shall, upon conviction... in addition and consecutive to the punishment prescribed for the felony... be punished....” Subdivision (b)(1)(C) continues: “If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.” Section 667.5, subdivision (c)(9) lists “any robbery” as a violent felony for purpose of the statute.
Subdivision (f) of section 186.22 states that a “criminal street gang” is “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 in [the statute], 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.”
Under section 186.22, subdivision (e), a “pattern of criminal activity” refers to “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons[.]”
The prosecution presented Officer Gonzales as an expert witness with several years of experience and training in dealing with gangs and gang crimes. He testified that OVS is a documented criminal street gang with 700 to 800 members and has a specific gang sign unique to that group. He could find no activity that OVS was involved in other than criminal activity. Officer Gonzales also testified regarding other documented members of OVS who had been convicted of several crimes enumerated in section 186.22 within the three-year time frame necessary to classify their acts as a “pattern of criminal gang activity” under the statute.
One documented member of OVS was convicted of conspiracy and assault with a firearm in September 2000. Another was convicted of murder and a gang enhancement under section 186.22 in March 2002. Subdivision (e) of section 186.22 lists several so-called “predicate offenses” that satisfy the “pattern of criminal gang activity” requirement. “Assault with a deadly weapon” is included in subdivision (e)(1) and “[u]nlawful homicide” is included in subdivision (e)(3).
Officer Gonzales was a credible expert witness testifying as to his personal knowledge gained in the field and through conversations and reports from other officers and agencies. “‘[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts.... [W]e must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Reviewing the record in the light most favorable to the judgment and drawing every reasonable inference, it seems clear that the jury could have given Officer Gonzales’s testimony great weight. In the absence of any contradictory testimony, and in light of Officer Gonzales’s extensive knowledge, it would have likely been difficult for the jury to doubt the credibility and the value of his testimony. The record shows substantial evidence to support the jury’s finding that OVS was a criminal street gang engaged in a pattern of criminal activity.
There is also substantial evidence to show that the robbery was committed for the benefit of OVS. Officer Gonzales testified that, in his opinion, the robbery would have benefited defendant by raising his status within the OVS and would also have benefitted the gang as a whole by providing cash to buy guns or drugs. He described how gangs rely on fear and intimidation created by committing robberies and other crimes within their territory, and said that this robbery would have increased the influence of OVS and made it easier to commit more crimes in the future. Defendant argues that because he broke company with the three accomplices and no one witnessed the stolen items being shared or distributed among them, the evidence is insufficient to show that the robbery was committed for the benefit of OVS. However, “‘[i]f the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’” (People v. Thomas (1992) 2 Cal.4th 489, 514.)
Defendant’s reliance on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, to argue that there was insufficient evidence to find the crime was committed for the benefit of the gang, is misplaced. In Garcia, the court dealt with the second prong of the gang enhancement statute requiring a “specific intent to promote, further, or assist in any criminal conduct by gang members.” The court found “nothing on the record that connects the ‘turf-oriented’ nature of the gang with the commission of robberies generally, or... this robbery in particular. There is no testimony that protection of turf enables any other kind of criminal activity of the gang. The expert’s testimony is singularly silent on what criminal activity of the gang was furthered or intended to be furthered by the robbery....” (Id. at p. 1103.) In contrast, Officer Gonzales did testify that the fear and intimidation created by robberies like this would benefit the gang by making it less likely that victims or witnesses would report future crimes. He also testified that there had been an increase in OVS activity in Fontana and an increase in OVS graffiti in and around the Metrolink station. Based on Officer Gonzales’s testimony, the jury could have reasonably concluded that this robbery was committed for the benefit of the OVS to send out the message, “We’re here, don’t mess with us.” Officer Gonzales’s expert testimony provided a reliable basis to believe that, even if the stolen property was not distributed among other gang members or used to buy guns or drugs, the crime itself would have benefitted the gang by helping to solidify their hold on the area around the Fontana Metrolink station.
Although no evidence was presented directly linking defendant’s accomplices to OVS, there was sufficient evidence for the jury to infer that the three men who perpetrated the robbery with defendant were also OVS gang members. Circumstantial evidence may be sufficient to prove a defendant’s guilt beyond a reasonable doubt, and the standard of review is the same for cases in which the People rely primarily on circumstantial evidence. (People v. Thomas, supra, 2 Cal.4th at p. 514.) The victim said that the four men who robbed him wore baggy clothes and looked like gang members. He said that defendant initiated the confrontation, but all four men posed the classic gang challenge, “Where are you from?” Officer Gonzales testified that this was a common phrase used by gang members in confrontations, and he also said that the manner in which the robbery was perpetrated was a common method of operation for gang members. The gang expert’s testimony provided a sufficient basis for the jury to believe that not only was defendant a gang member, but his three accomplices were likely gang members as well. In light of this evidence, it would have been reasonable for the trier of fact to find that defendant committed the robbery in association with a criminal street gang. Whether the jury determined that the crime was committed for the benefit of or in association with a criminal street gang is unimportant, and we find that there is substantial evidence from which a reasonable trier of fact could find the first prong of the gang enhancement charge true beyond a reasonable doubt.
Defendant also contends the evidence was insufficient to show a specific intent on his part to promote, further, or assist in any criminal conduct by gang members. We disagree. Although there is no direct evidence linking the three accomplices to OVS or showing that defendant shared the stolen property with other gang members, the jury could still reasonably conclude that defendant acted “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Defendant argues that nothing in Officer Gonzales’s expert testimony showed the required specific intent on the part of defendant and, in the same breath, states that had such testimony been offered it would have been precluded as beyond the scope of a gang expert under In re Frank S. (2006) 141 Cal.App.4th 1192. Although Officer Gonzales did not and could not testify directly to defendant’s subjective knowledge and intent, sufficient circumstantial evidence was presented through his testimony for the jury to reasonably infer defendant’s specific intent.
As this court pointed out in People v. Morales (2003) 112 Cal.App.4th 1176 [Fourth Dist., Div. Two], “specific intent to benefit the gang is not required.” (Id. at p. 1198.) In that case, we held that there was “evidence that defendant intended to commit robberies, that he intended to commit them in association with [gang members], and that he knew [they] were members of his gang.... It was fairly inferable that he intended to assist criminal conduct by his fellow gang members.” (Ibid.; see also People v. Romero (2006) 140 Cal.App.4th 15, 20.) Despite the lack of direct evidence linking defendant’s three accomplices to OVS, the large amount of circumstantial evidence provided by the testimony of the victim and that of Officer Gonzales allowed the jury to reasonably infer that defendant was acting with the specific intent to assist other gang members in criminal conduct. As we said in Morales, “the typical close case is one in which one gang member, acting alone, commits a crime. Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang.” (People v. Morales, supra, at p. 1198.) However here, as in Morales, there was no evidence that this crime was unrelated to the gang’s activities. Unlike the recent Ninth Circuit case of Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, in which the robberies were committed in neither the “turf” of the defendant’s gang nor a rival gang, and where there was evidence that the purpose behind the robberies was to get money to buy Christmas presents, this robbery was committed in front of bystanders in an area that OVS members appeared to be actively “claiming” and began with the classic gang challenge, “Where are you from?”
The Ninth Circuit in Garcia v. Carey, supra, 395 F.3d 1099, holds that a specific intent to promote, further, or assist gang members in criminal activity other than the underlying charge must be proven to satisfy section 186.22. However, we agree with our sister courts’ reasoning in People v. Romero, supra, 140 Cal.App.4th 15 and People v. Hill (2006) 142 Cal.App.4th 770—the plain language of the statute is at odds with the circuit court’s interpretation in Garcia, and we decline to follow it. (See People v. Burnett (2003) 110 Cal.App.4th 868, 882 [federal authority is not binding in matters involving state law]; see also Oxborrow v. Eikenberry (9th Cir. 1989) 877 F.2d 1395, 1399 [state court interpretation of state statute binding on federal court unless interpretation is a subterfuge or untenable].) Section 186.22 requires a specific intent to promote, further, or assist in “any criminal conduct by gang members,” rather than other criminal conduct. (§ 186.22, subd. (b)(1), italics added.)
It is true that section 186.22 “does not criminalize mere gang membership.” (People v. Gardeley (1996) 14 Cal.4th 605, 623.) However, even taking into account the standards laid out in Garcia and Briceno, as urged by defendant, we reach the same conclusion. The evidence presented in this case is fairly analogous to the evidence the California Supreme Court found sufficient in Gardeley to prove both prongs of the statute. In that case, the expert witness was given a hypothetical based on the facts of the case and asked if, in his expert opinion, the attack as described would be “gang-related activity.” (Gardeley, supra, at p. 619.) He “responded that it was a ‘classic’ example of gang-related activity, explaining that criminal street gangs rely on such violent assaults to frighten the residents of an area where the gang members sell drugs, thereby securing the gang’s drug-dealing stronghold.” (Ibid.) The court found this expert testimony sufficient for the jury to reasonably conclude that the attack in that case was committed not only “‘for the benefit of, at the direction of, or in association with’” the gang, but also that it was committed “‘with the specific intent to promote, further, or assist in... criminal conduct by gang members.’” (Id.)
In this case, just as in Gardeley, a group of men perpetrated a crime in a public place, in view of bystanders and in an area where gang activity is prevalent. Officer Gonzales testified that there had been an increase in OVS graffiti around the Fontana Metrolink station, consistent with a gang attempting to claim new territory, and that his unit had seen an increase in the number of OVS gang members coming into the city. Defendant was also seen “hanging out” around the Metrolink station without boarding a train or bus, from which the jury could infer he had some other, possibly nefarious, motive for being there. This evidence, coupled with Officer Gonzales’s testimony that the robbery would have instilled fear in the community and strengthened the gang’s hold on the area, allowed the jury reasonably to find that defendant did commit this robbery with the specific intent to secure the area around the Metrolink station in order to further future criminal conduct by gang members.
A.M.’s testimony that defendant was the one who approached him, did most of the talking, and took his property also tends to show that defendant was actually the ringleader, not only assisting in or furthering the criminal conduct of these thugs, but actually promoting it. Officer Gonzales testified that by “taking charge” and showing his willingness to steal A.M.’s property, defendant would have raised his status among the other three accomplices and among other OVS members through word of mouth. For the foregoing reasons, we find there was substantial evidence to support the jury’s finding that defendant committed the robbery for the benefit of or in association with a criminal street gang and with the specific intent to further, promote, or assist in criminal conduct by gang members.
IV. DISPOSITION
The judgment is affirmed.
We concur: McKinster, Acting P.J., Richli, J.