Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA104249. Allen J. Webster, Jr., Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Michael Lancaster appeals from the judgment entered upon his conviction by jury of second degree robbery (Pen. Code, § 211). The jury also found to be true the gang allegation within the meaning of section 186.22, subdivision (b)(1)(C). The trial court sentenced him to a prison term of three years for the robbery, plus 10 years for the gang enhancement. Appellant contends that he was denied due process under the Fifth and Fourteenth Amendments to the federal Constitution as his conviction is unsupported by substantial evidence because there is lacking evidence (1) that he committed the robbery for the benefit of, at the direction of, or in association with a criminal street gang, and (2) that he committed the robbery with the specific intent to promote, further, or assist in any criminal conduct by gang members.
All further statutory references are to the Penal Code unless otherwise indicated.
We reverse the gang enhancement, remand for resentencing and otherwise affirm.
FACTUAL BACKGROUND
The Robbery
On November 29, 2008, at 11:00 p.m., Edward Mosby (Mosby) was waiting for a bus at the intersection of Slauson Avenue and Broadway. A woman approached, and asked if he was a gang member. Mosby was not and said so. The woman said she was pregnant and asked if he would help push her car. Appellant, the woman’s boyfriend, was standing near the car.
Mosby assisted appellant in pushing the car to a nearby gas station. While Mosby held the hood open, appellant checked the radiator, in an attempt to fix an overheating problem. When his girlfriend stepped on the accelerator, the radiator exploded and hot water sprayed on appellant. Upset, he responded by cursing at his girlfriend, and saying, “On Lanes blood” or “On Bloods, ” directed at his girlfriend. He removed his soiled shirt, under which was a “wife beater” tank top T-shirt that exposed some of his chest. Mosby saw a “D.L.” tattoo on his chest. Mosby had heard of the Denver Lanes gang (Denver Lanes) and believed they were a Blood gang with a red gang color.
After 45 minutes, the station attendant came out and told them to move the car to a different area of the station. Appellant and Mosby pushed it to that area and parked it. A man and woman arrived to pick up appellant and his girlfriend. The man was wearing a blue shirt. Appellant’s girlfriend offered Mosby a ride, and the five of them got into the second couple’s Explorer. The second female drove. Appellant sat behind her, Mosby sat behind the man in the blue shirt and appellant’s girlfriend sat between appellant and Mosby.
Appellant said that they were going to make a stop at a “weed house.” The Explorer drove to an alley, nowhere near Mosby’s home. The driver parked, and the two men got out, went to Mosby’s door, opened it, and appellant punched him in the face and eye, while the other man pulled him from the car by his hood. They went through Mosby’s pockets and took his Louis Vuitton wallet, with his social security and identification cards, his cell phone, and his gold nugget ring, and continued to punch him and pull at his clothing. Mosby sustained bruises to his elbows and ribs.
As the two men ran back to the Explorer, Mosby ran for safety. The Explorer drove away, and Mosby walked to a nearby liquor store to use the telephone.
Gang Testimony
Los Angeles Police Detective Samuel Marullo testified as a gang expert, with expertise in the Southeast Los Angeles area gangs, including the Denver Lanes, which was respected by other gangs. The Denver Lanes had about 200 members. Its gang color was red, though members did not wear that color all of the time. Its territory ran from 104th Street on the north to 119th Street on the south and from Vermont on the west to the 110 Freeway on the east. The Denver Lanes main rival was the Hoover Criminals gang, a Crips gang, with which the Denver Lanes gang was involved in an ongoing war at the time of the charged offenses. The primary activities of the Denver Lanes were vandalism, burglary, robbery, narcotics sales, carrying guns as felons, attempted murder, and murder.
Detective Marullo explained that there is pressure for gangs to commit crimes in their territories, though it is not uncommon for them to commit crimes elsewhere. Crimes benefit the gang because when a gang member “put[s] in work, ” it is for the good of the gang. If a gang member does not put in work, he can be severely disciplined. The profits from a gang-member’s crime are shared with the gang. Crimes also increase the gang’s respect because it instills fear and aids in recruitment. The detective acknowledged that not all crimes, including robberies, are committed by gang members for the benefit of the gang, even if conducted in gang territory.
According to the detective, appellant became a Denver Lanes member when he was around 12 years old and remained one through the time of trial. Appellant’s moniker was Baby Ruth Blood, which he freely admitted. In addition to his “DL” tattoo, appellant had “108th” and “112th” tattooed on his right and left arms, respectively, signifying that he was part of Fig Boys, a clique within the Denver Lanes.
Given a hypothetical based upon the evidence presented in this case, Detective Marullo opined that the charged robbery was committed for the benefit of the Denver Lanes. It enhanced that gang’s reputation for violence, which facilitates its entering alliances with other gangs and recruitment. Robbery is a common way in which a gang member “put[s] in work” for the gang and earns respect, especially when the member is young. Gangs have higher expectations for younger members. It was not necessary for the money obtained in a robbery to be shared with the gang for the robbery to be beneficial to the gang, though gangs expect that members will contribute materially. Robberies are more important during gang wars due to the gang’s need for money to conduct the war and to help compensate for lost narcotics sales. In 2008, the Denver Lanes were at war with the Hoovers. Detective Marullo did not know if the money and property obtained in the charged robbery was shared. But word of the robbery would be disseminated by the audience present during the robbery, making it more likely that appellant would be compelled to share the proceeds with his gang. If he did not, it would be a mark against him within the gang.
When appellant swore “on Lanes blood, ” it was a figure of speech, equivalent to swearing by God. The facts that appellant swore “on Lanes blood, ” that there were witnesses to the robbery, that he exposed his “DL” tattoo, and that Mosby was asked if he gangbanged to make certain that appellant did not rob an ally gang member, all formed the basis of Detective Marullo’s opinion.
DISCUSSION
I. Contention
Appellant’s sole contention on this appeal is that he was denied due process under the Fifth and Fourteenth Amendment to the federal Constitution because there was insufficient evidence that he committed the robbery for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members. He argues that the gang expert’s opinion was the only testimony on this issue and was unsupported by the evidence and based on rampant speculation. We agree.
II. Standard of review
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) All conflicts in the evidence and questions of credibility are resolved in favor of the verdict, drawing every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.) This standard applies whether direct or circumstantial evidence is involved. (People v. Catlin (2001) 26 Cal.4th 81, 139.) It also applies when determining whether the evidence is sufficient to sustain a jury finding on a gang enhancement. (See People v. Duran (2002) 97 Cal.App.4th 1448, 1456–1457; People v. Villalobos (2006) 145 Cal.App.4th 310, 321–322 (Villalobos).)
III. Gang related offense
Section 186.22, subdivision (b)(1) provides that a person 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” can receive an enhanced sentence. (People v. Gardeley (1996) 14 Cal.4th 605, 616–617 (Gardeley.) It applies to “gang-related” crimes. (People v. Castenada (2000) 23 Cal.4th 743, 745.) “Not every crime committed by gang members is related to a gang.” (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).)
An expert may render an opinion based on the facts of a hypothetical question as to whether a crime is committed for the benefit of, at the direction of or in association with a criminal street gang. (See Gardeley, supra, 14 Cal.4th at pp. 617–618.) But a hypothetical must be “rooted in facts shown by the evidence.” (Id. at p. 618.) Evidence that a gang member committed a crime alone with an expert’s unsubstantiated opinion that the crime was committed for the benefit of the gang is insufficient to find the gang enhancement to be true. (People v. Ochoa (2009) 179 Cal.App.4th 650, 665 (Ochoa).) “[T]he record must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.” (People v. Martinez (2004) 116 Cal.App.4th 753, 762 (Martinez); Ochoa, supra, at p. 663 [“The gang enhancement cannot be sustained based solely on defendant’s status as a member of the gang and his subsequent commission of crimes”].) The crime must have some connection with the activities of a gang. (See Martinez, supra, at pp. 759–760 [discussing § 186.30].)
We join the growing chorus of appellate decisions that have critically reviewed the perfunctory testimony of gang experts and found it insufficient to support the gang enhancement. (See, e.g., People v. Ramon (2009) 175 Cal.App.4th 843; Ochoa, supra, 179 Cal.App.4th 650; In re Frank S. (2006) 141 Cal.App.4th 1192.) It is not our task to fill in the gaping evidentiary holes that the prosecution has sidestepped by means of boilerplate “gang expert” testimony.
In this case, other than the gang expert’s testimony that the robbery of Mosby was for the benefit of the Denver Lanes, the evidence is insufficient to sustain a finding that the crime was committed to benefit that gang. It was not committed in gang territory or against a rival gang member, there was no gang challenge to Mosby made before the robbery, there was no gang graffiti left after the robbery, and no gang signs were thrown. (See In re Jose T. (1991) 230 Cal.App.3d 1455, 1463 [flashing gang sign and yelling attacker’s name reflects that crime gang related]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1382–1383 [crossing out gang graffiti and shouting gang name reflects gang related crime].)
There is also no evidence that appellant’s girlfriend or the unnamed couple who came to pick them up were fellow gang members. In fact, it is unlikely that the man was, as he wore a blue shirt, the color of Crips gangs, not red, the color of rival Blood gangs, such as the Denver Lanes. It is questionable whether appellant would have committed a gang crime with a nongang member, who is not bound by the code of silence and loyalty to which gang members are bound with regard to each other. There was no evidence to suggest that the robbery was a planned gang crime. Instead, it appears that appellant was involved in nongang activity, driving his girlfriend somewhere when their car broke down, nothing more. There was no evidence that the other male and female were anything other than coparticipants in the charged offense, not people seeking to commit a crime for the benefit of a gang.
Detective Marullo’s opinion that the robbery was committed for the benefit of a criminal street gang was based upon rampant and utter speculation. Like a well-crafted novel, it read well, but bore no relationship to the evidence. In support of his opinion, the detective pointed to appellant’s gang reference when he stated, “On Lane’s Blood” and removed his shirt, under which was a tank-top, T-shirt that revealed a “DL” tattoo on his chest. But these things occurred only when appellant’s girlfriend depressed the car’s accelerator, causing the radiator to explode and spray hot liquid on appellant’s outer shirt. Neither the statement nor the removal of the shirt was intended as a challenge or display of gang affiliation, but were spontaneous responses to what appellant’s girlfriend had done. The statement, “On Lane’s Blood, ” was like swearing on appellant’s highest authority, his gang. Mosby testified that it was not directed at him, but at appellant’s girlfriend. There is no evidence that the gang tattoo was intentionally displayed or would have been displayed but for the unanticipated dangerous spraying of hot liquid on appellant.
Detective Marullo also relied on the fact that Mosby was asked by appellant’s girlfriend if he was a gang member before she asked for his assistance in pushing the car. The detective stated that the question was asked so that appellant would know that he was not inadvertently robbing a fellow Denver Lanes member. But there was not a shred of evidence that this was the reason for the inquiry. There is nothing to even suggest that the question derived from appellant, rather than from his girlfriend, who posed it. Also, if appellant’s girlfriend was merely communicating a question appellant told her to ask, it is equally plausible that the inquiry was made because appellant was in the midst of dealing with a car problem outside his gang’s territory and wanted assurance that the person who assisted was not a rival gang member who might precipitate a confrontation. Nothing in the facts suggests that there was any prior plan to rob Mosby.
Detective Marullo further asserted that the robbery was appellant’s attempt to “put in work” for the Denver Lanes, which is expected by that gang and which earns respect for the perpetrator. This expectation, the detective said, is even higher for young gang members like appellant. The proceeds of the robbery must, directly or indirectly, inure to the benefit of the gang because the failure to contribute to the gang is a mark against the gang member. But there is not a scintilla of evidence that appellant committed the crime to put in work for the gang or that he intended to share the proceeds of the robbery with his gang. The crime did not occur in gang territory, involved people not in the Denver Lanes, was perpetrated against Mosby, who was not a gang member, and occurred without any overt display that the crime was gang sponsored. If the mere obligation of a gang member to share the ill-be-gotten gains of his crime with his gang, without respect to whether he actually did so, is sufficient to make a robbery a gang crime, every robbery by a gang member would be a gang crime. Even Detective Marullo acknowledged that not every robbery by a gang member is for the benefit of the gang.
Detective Marullo also speculated that respect was gained by committing a violent crime with an audience who would talk about it with others. But there is no evidence who the members of the audience were or where they lived. They were accomplices in the crime, which might make them less willing to spread the word of appellant’s conduct, and hence enhance his reputation.
We find this case distinguishable from Albillar, where our Supreme Court found that the three defendants, who were all gang members, “came together as gang members to attack [sexually the victim] and, thus, that they committed these crimes in association with the gang.” (Albillar, supra, 51 Cal.4th at p. 62.) There was no evidence here that any of the perpetrators of the robbery, other than appellant, was a Denver Lanes member.
Because we conclude that appellant’s offense was not gang-related, he cannot have acted in committing that crime with the specific intent to promote, further, or assist in any criminal conduct by gang members. Further, as stated in Villalobos, supra, 145 Cal.App.4th at page 322, “As to the second prong of the enhancement, all that is required is a specific intent ‘to promote, further, or assist in any criminal conduct by gang members.’ [Citation.] Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” There is no evidence that appellant acted to promote, further or assist gang members, as there was no evidence that any of the other participants in the robbery were Denver Lanes members. It is not enough that appellant was. Were that the case, any crime by a single gang member would be a crime with the intent to promote, further or assist gang members, and Detective Marullo testified that not all crimes by gang members are gang crimes.
IV. Remedy
A defendant’s aggregate prison term under the determinant sentencing law “cannot be viewed as a series of separate independent terms, but rather must be viewed as one prison term made up of interdependent components. The invalidity of some of those components necessarily infects the entire sentence. [¶]... [¶] In making its sentencing choices in the first instance the trial court undoubtedly considered the overall prison term to be imposed.” (People v. Savala (1983) 147 Cal.App.3d 63, 69–71, disapproved by the same court on other grounds in People v. Foley (1985) 170 Cal.App.3d 1039; see also People v. Rojas (1988) 206 Cal.App.3d 795 [remanded for resentencing where section 667, subdivision (a) was improperly imposed because the alleged prior serious felony actually occurred after the current charges].) In accordance with these authorities, this matter will be remanded for resentencing.
DISPOSITION
The gang enhancement is reversed and the judgment is otherwise affirmed. The matter is remanded for resentencing.
I concur: DOI TODD, Acting P. J.
I dissent.
I disagree with the majority position that the expert’s opinion that the robbery 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, and assist in any criminal conduct by gang members “was based upon rampant and utter speculation.”
The record supported a finding that appellant’s conduct benefitted the gang. Detective Marullo, an experienced gang enforcement officer, testified as an expert witness that he knew appellant to be an openly gang-tattooed member of Denver Lane gang. This fact, when considered with the evidence that the robbery victim was asked about his own gang affiliation prior to the robbery and that appellant exposed his Denver Lane tattoos to the victim and swore “on Lanes blood” in the presence of the victim, was the basis for Detective Marullo’s opinion that when such a gang member commits the violent crime of robbery the gang benefits by having its image of strength in the community reinforced which adds to the level of respect it commands. “Expert opinion that particular criminal conduct benefitted 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(b)(1).” (People v Albillar (2010) 51 Cal.4th 47, 63 (Albillar), citing People v Vazquez (2009) 178 Cal.App.4th 347, 354.) Though the majority observes that the crime did not take place within the Denver Lane’s claimed territory, that no gang challenge was made, no gang signs thrown, and no graffiti left behind, our task is to determine whether there was substantial evidence -- even if it was disputed -- to support the jury’s finding. The absence of overt gang identification does not necessarily take the crime out of the gang context. Reversal is not warranted simply because the circumstances might also be reasonably reconciled with a contrary finding. (Albillar, supra, at p. 60.)
Detective Marullo also testified about the gang practice of “putting in work” or committing crimes for the common good. He noted that gangs crave respect from others and for a gang to be strong and have that respect its members must commit violent crimes in public. Detective Marullo noted that here the robbery was committed in front of an audience of two women and another man. It matters not whether the witnesses were members of a gang themselves because regardless, they will likely discuss their observations with others in the community which will in and of itself enhance the gang image. This evidence supports the second prong of the jury finding, that the crime was committed “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)
Based on the foregoing there was substantial evidence of solid value to support the conclusion reached by the trier of fact who had the opportunity to observe and judge the credibility and significance of the evidence presented. The judgment should be affirmed in all respects.
CHAVEZ, J.