Opinion
H044333
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. JESUS RESENDIZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1515159)
Defendant Jesus Resendiz was convicted by jury trial of three counts of criminal threats (Pen. Code, § 422) and one count of active participation in a criminal street gang (§ 186.22, subd. (a)), and the jury found true gang allegations as to the criminal threats counts. The jury also found true an allegation that defendant had suffered a prior juvenile adjudication for aggravated assault (§ 245, subd. (a)(1)), which qualified as a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). The court imposed a sentence of four years.
All further statutory references are to the Penal Code.
On appeal, defendant contends that the active participation count is not supported by substantial evidence because, in his view, there was no evidence that he knew that the Norteño gang had engaged in a pattern of criminal activity. He also challenges the strike finding, claiming that his Sixth Amendment rights were violated when the trial court, rather than the jury, found that his juvenile adjudication was for an offense committed when he was 16 years of age or older. Finally, he contends that his right to a jury trial was violated by the use of the juvenile adjudication as a strike because juveniles do not have a right to a jury trial. We reject his contentions and affirm the judgment.
I. FACTUAL BACKGROUND
In June 2015, Robert and Lydia Sanchez were living in their 22-year-old son Raymond Borquez's house in San Jose with his family and their other nine children. Raymond had been "busted for robbery" in 2012, and afterwards his former friends called him "a snitch," "hate[d]" him, and began "mad-dogging" him. Defendant had been one of Raymond's friends, and they had long since ceased to be on speaking terms. Raymond's house "had been shot up" in May 2014 by gang members, and Lydia's granddaughter "almost got shot."
The parties stipulated that Raymond had committed a robbery in 2011 and been convicted of it in 2012.
On June 20, 2015, Robert's friend was working on Raymond's wife's red truck in front of the house when "somebody threw a [beer] bottle at the truck." A car was then seen making a U-turn and parking in front of the park across the street from the house. Robert, his friend, and other members of the family ran across the street "to confront the people that they had assumed threw the bottle . . . ." Robert and his friend approached the car that had parked in front of the park. Defendant was the passenger in the car, and the driver was Angel Alcaraz. The car had no license plates. Robert and Lydia immediately recognized defendant because they had known him well when he was Raymond's friend.
Both defendant and Alcaraz got out of the car and denied having thrown the bottle. Defendant was wearing a red and black 49ers hat and a shirt with some red lettering, and Alcaraz was wearing red shoes. Alcaraz had a visible tattoo of the number 4 on his shoulder and other visible Norteño gang tattoos on his wrists. The prosecution's gang expert testified that Norteño gang members associate with the colors red, white, and black, and the number 14.
Alcaraz had been an active Norteño gang member since 2006.
Alcaraz got a bat out of the trunk of the car. The two men began making threats. Although Alcaraz did most of the talking, defendant also told Robert and Lydia that "[w]e're going to come back and shoot this house" and that they "better start collecting funeral money because you are going to be dead." Defendant also said: "It's the fucking rules, homey, I'm active now." Robert understood defendant to be saying that he was an active Norteño. The gang expert further testified that Norteños use the term "active" to refer to "a foot soldier in the gang." Active Norteños are expected to commit crimes to facilitate the gang's criminal activities.
Defendant also called Robert "a dropout." A "dropout" or "DO" "is the wors[t] thing you can be in the gang world." When someone is known to be a dropout, "any time they see you they can stab you, shoot you, hurt you, and the gang authorized it because you are basically the lowest of the low." A dropout is "considered no good." According to the gang expert, if a Norteño gang member has "violated one of the rules" of the Norteño gang, the gang member will "[u]sually" be assaulted. It is "engrained" in the Norteño gang culture that "snitching or dropping out or giving information to law enforcement is the worst thing that you could ever do."
Robert told the police that he was an "active Norteño."
Alcaraz called someone on his cellphone and said "I'm right here with these fucking D.O. homeys" He and defendant "threatened to shoot the house and pointed to the children." Alcaraz said "fuck Raymond" and threatened that the house was going to be shot up "again." Alcaraz said: "Homey, I'm going to come back fucking see -- fuck all your kids up. So I am going to come back and spray your house, fucking homeys." Both defendant and Alcaraz referred to Raymond as "a snitch" and told Robert that they "were active."
Lydia and her teenaged daughter S. both called 911 because it "looked like they were going to fight." S. told the police that they were being threatened by two men she thought were in a gang. When Lydia told defendant and Alcaraz that she was on the phone with the police, defendant responded: " 'Fuck the cops. I don't give a fuck about the police.' " The police arrested defendant and Alcaraz shortly after they left the scene.
II. PROCEDURAL BACKGROUND
Defendant was charged by information with three counts of criminal threats, one count of exhibiting a deadly weapon (§ 417, subd. (a)(1)), and one count of active participation in a criminal street gang. Each criminal threats count pertained to a separate victim (Robert, Lydia, and S.) and was accompanied by a gang enhancement allegation. It was also alleged that defendant had suffered a prior juvenile adjudication that qualified as a strike.
At the beginning of trial, defendant asked the court to bifurcate the prior strike allegation and offered to waive a jury on that allegation if it was bifurcated. The prosecution objected to bifurcation, and the court declined to bifurcate. Defendant therefore did not waive his jury trial right on the prior strike allegation.
The prosecution's gang experts testified that gang members often commit crimes in the presence of a fellow gang member so that there is a "witness" to establish that the gang member has "put in work for the gang" by committing that crime. Norteño gang members enhance their reputation by instilling fear in nongang members. Victims and witnesses are "terrified of the retribution that will be followed for testifying or giving any information about gangs or gang members." It is common for witnesses to be "scared to testify."
The prosecution introduced evidence of numerous prior offenses committed by Norteño gang members. Alcaraz and a fellow Norteño gang member had assaulted a person wearing a blue shirt in September 2008 and been convicted of assault with a gang enhancement for that crime. Alcaraz had been convicted of robbery in 2007. Isaac Brown had been convicted of assault with a deadly weapon with a gang enhancement for an offense in 2012 in jail. Jesse Aguilar and Ruben Maciel had committed an assault with a deadly weapon with gang enhancements in 2013. Maciel had committed a felony vehicle theft in 2011. Aguilar committed a vehicle theft in 2012. Hector Perea committed felony vandalism, dissuading a witness, and felony battery with gang enhancements in 2014. Alexander Morales and Jose Gonzales committed assault with a deadly weapon, robbery, burglary, dissuading, criminal threats, vandalism, and vehicle theft in 2014.
The prosecution also introduced evidence of defendant's prior offenses. In March 2010, defendant was observed in a Norteño gang area with another male at night. He "aggressive[ly]" walked in front of a car stopped at a stop sign, put his hands up, and said " 'What's up, homey.' " His companion remained on the curb. The driver of the car, an off duty police officer, understood that this was "not a friendly" statement, but "what they call a 'check' . . . to try and see if you engage [in] some kind of conversation." The officer concluded, based on defendant's baggy clothing, hair cut, and "walk," that defendant was a gang member. Defendant doubled back and went around the passenger's side of the car toward the rear of the car. The officer got out of the car, saw defendant at the back of the car, and asked defendant "what he wanted." Defendant stared at the officer, walked toward him, said " 'I want your car. Give me your car,'" and displayed a knife. The officer responded by displaying his badge and firearm and identifying himself as a police officer. Defendant stared at the officer for 10 to 15 seconds and then took a couple of steps toward him. The officer pulled out his firearm, pointed it at defendant, and told him to put down the knife, but defendant did not immediately comply. Only after the officer made his badge more prominent did defendant eventually comply.
The officer believed that defendant was drunk or high during this event.
This March 2010 event led to defendant's juvenile adjudication for assault with a deadly weapon. He admitted committing the offense and was committed to the Ranch, with probation to follow. His probation conditions required him to "not associate with" several people, including Anthony Chacon and Raymond Borquez, and to "not knowingly associate" with any "gang member."
In September 2013, defendant and Anthony Chacon attempted to steal beer from a man. Chacon was a Norteño gang member with Norteño gang tattoos who had been convicted in 2011 of carrying a concealed dirk or dagger. They were convicted of attempted grand theft person (§§ 487, subd. (c), 664.)
A prosecution gang expert testified that both defendant and Alcaraz were Norteño gang members when they committed the June 2015 offenses. He also testified that these offenses were committed in association with the Norteño gang. The expert based his opinions on their statements about being "active," Alcaraz's display of gang tattoos, the shooting threats, and the "reference to a D.O. or dropout." He explained that a Norteño would consider himself "active" if he had "recently . . . committed crimes for the benefit of the gang." The expert also testified that defendant had committed his juvenile crime and his crime with Chacon for the Norteño gang.
Lydia's testimony at trial downplayed any suggestion that the incident involved a gang. She asserted that she was familiar with the Norteño gang because "that's kind of common knowledge" and the father of her older children had been a Norteño gang member. However, she insisted that "[t]his wasn't a gang thing." "They were just some dumb idiots." "None of it felt gang to me." Lydia testified that defendant "seemed pretty drunk, really, really drunk." However, Lydia had not told the police at the time that defendant was drunk. Robert also testified at trial that defendant was "[d]runk as hell like always."
Lydia denied that she had told the police many of the things that her recorded statements proved she had said. She admitted that she had moved out of Raymond's house on the evening of the incident. Lydia also admitted that she had not complied with the first subpoena that required her appearance in court and had not wanted to appear in court at all. Lydia had "expressed concern about testifying" and asked the investigating officer "if there was any services about relocating." He offered her witness protection, and she "asked if we thought she needed it." She did not accept the offer.
The jury convicted defendant of all of the charged counts except for the exhibiting a deadly weapon count; Alcaraz was convicted of that count. Defendant asked the trial court to strike the strike, but the court declined to do so. The court imposed a four-year doubled term for one of the criminal threats counts and identical concurrent terms for the other two criminal threats counts, struck the punishment for the gang enhancements, and imposed and stayed under section 654 a four-year term for the active participation count. Defendant timely filed a notice of appeal.
III. DISCUSSION
A. Active Participation Count
Defendant challenges the sufficiency of the evidence to support the knowledge element of the active participation count. The active participation count required proof that defendant "actively participate[d] in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and . . . willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of that gang . . . ." (§ 186.22, subd. (a), italics added.)
1. Background
Defendant's trial counsel argued to the jury that "[t]here's no evidence that [defendant] knew of the pattern of criminal activity presented to you by the district attorney." He asserted that defendant had not known of the specific predicate offenses that had been presented by the prosecution. The prosecutor responded that he was not required to show that defendant "knew every single predicate" but only that he knew of "two or more" crimes committed by Norteño gang members, which could be defendant's "own crimes."
The trial court instructed the jury that the active participation count required a finding that "when the defendant participated in the gang, he knew that members of the gang, engage in or have engaged in a pattern of criminal gang activity." The court told the jury: "Pattern of criminal gang activity, as used here means: The commission of or attempted commission of or conviction of or having a juvenile petition sustained for commission of vehicle theft, burglary, assault with a deadly weapon, drug sales, robbery and/or attempted carjacking . . . ." These crimes had to have been committed "on separate occasions or . . . by two or more persons." "The crimes, if any, that establish a pattern of criminal gang activity need not be gang related. If you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the groups' [sic] primary activities was the commission of that crime and whether a pattern of criminal gang activity has been proved."
The trial court's instruction did not include criminal threats, the "crime in this case," in the list of crimes that could be considered part of a pattern of criminal gang activity. The record contains no explanation for this omission. Gang experts testified at trial that the primary activities of San Jose Norteños were "[m]urder, assault with a deadly weapon, carrying of illegal firearms, the selling of drugs, witness intimidation, threats, felony vandalism, stealing of cars, to name a few." (Italics added.) Criminal threats is one of the statutorily enumerated crimes that may be used to show a "pattern of criminal gang activity." (§ 186.22, subd. (e)(24).)
2. Analysis
Defendant contends that the active participation count must be reversed because the prosecution "failed to provide any evidence that [defendant] was aware of the criminal activities of the Norteños." He concedes that he was aware of his own predicate offense (the juvenile adjudication), but he claims he was not a gang member at the time he committed that offense. Defendant challenges consideration of the predicates committed by other gang members on the ground that there was no affirmative evidence that he was aware of any of those offenses. He discounts his statement at the time of the current offenses that he was "active now" as an "intoxicated brag" suggesting at most that he had only recently become an active gang member.
He claims that his arrest with Chacon could not be considered because that arrest was not for a predicate offense. We need not consider that event.
The knowledge element required proof that defendant knew that Norteño gang members, which could include himself and Alcaraz, "engage in or have engaged in" at least two specified crimes, which did not have to be gang-related crimes. "Mental state and intent are rarely susceptible of direct proof and must therefore be proven circumstantially." (People v. Thomas (2011) 52 Cal.4th 336, 355.) Here, there was substantial evidence that, at the time of the June 2015 offenses, defendant knew that Norteño gang members were engaging in or had engaged in at least two assaults with deadly weapons.
First, there was defendant's own assault with a deadly weapon in 2010. Although defendant argues that there was no evidence that he was a Norteño gang member in 2010, the evidence presented at trial was sufficient to demonstrate otherwise. The victim of that offense, an experienced police officer, testified that he could tell that defendant was a gang member due to his baggy clothing, his hair cut, and his "walk." The nature of that offense, a " 'check' " followed by an assault with a weapon that was not defused even by a command of an armed and identified police officer, was characteristic of the actions of a Norteño gang member. The fact that the offense occurred in a Norteño gang area and that defendant was accompanied by another male further supported a finding that defendant was a Norteño gang member at that time as Norteño gang members often commit their crimes in the company of a fellow gang member. In addition, the fact that defendant's probation conditions for the 2010 offense barred him from associating with gang members and specifically with Chacon, an established Norteño gang member, suggested that defendant was himself a Norteño gang member.
Second, the statements made by both defendant and Alcaraz during the June 2015 offenses demonstrated that defendant knew that Norteño gang members had committed and were committing assaults with deadly weapons. The two men threatened to "shoot" Robert and Lydia's children, stated that they were "active," meaning that they were committing crimes for the Norteño gang, referred to Robert as a "dropout" and a "D.O.", called Raymond a "snitch," and attributed their threats to the requirements of the gang's "rules." Defendant's statements and his awareness of Alcaraz's statements showed that he knew that Norteño gang members, including himself and Alcaraz, had engaged in and were engaging in assaults with deadly weapons and were doing so because the Norteño gang's "rules" required them to do so when they encountered a dropout or a snitch. Since defendant exhibited an awareness that the Norteño gang's rules required assaults with deadly weapons on gang dropouts, the jury could reasonably infer that he also knew that Norteño gang members other than himself had engaged in or were engaging in assaults with deadly weapons. Substantial evidence supports the knowledge element of the active participation count.
B. Prior Strike
Defendant contends that his Sixth Amendment right to a jury trial was violated in two respects. First, he argues that his right to a jury trial was violated when the trial court, rather than the jury, made the required finding that he was at least 16 years old when he committed the juvenile offense upon which the strike finding was based. Second, defendant contends that juvenile adjudications may not be utilized as strikes because juveniles lack the right to a jury trial.
1. Age Finding
One of the requirements for a prior juvenile adjudication to qualify as a strike is that "[t]he juvenile was 16 years of age or older at the time the juvenile committed the prior offense." (§§ 667, subd. (d)(3)(A), 1170.12, subd. (c)(3)(A).) The jury was not instructed that it was required to find that defendant was 16 years of age or older when he committed that offense. It was instructed only that it "must decide whether the evidence proved that the defendant was convicted of" "[a] violation of Penal Code Section 245(a)(1) on March 19th, 2010 . . . ."
Defendant did not dispute that he was 16 years old when he committed the juvenile offense. The minute order from defendant's prior juvenile adjudication, which was admitted into evidence at trial, stated that defendant's "Date of Birth" was "08/28/1993." Trial testimony established that the offense upon which the juvenile adjudication was based had been committed in March 2010.
We need not consider whether defendant's claim of error is valid because, even if he was entitled to a jury finding on the age issue, the Attorney General has met his burden of showing that defendant did not suffer any prejudice from the trial court's failure to submit this issue to the jury. This type of error "is reversible . . . unless it can be shown 'beyond a reasonable doubt' that the error did not contribute to the jury's verdict." (People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [failure to instruct jury on element of gang enhancement].)
The alleged error was the trial court's failure to instruct the jury that a true finding on the strike allegation required the jury to find that defendant was 16 years of age or older when he committed the March 2010 offense. Defendant did not dispute this issue at trial, and the unchallenged documentary evidence demonstrated that he was 16 years old when he committed that offense. "[I]nstructional error is harmless 'where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.' " (People v. Mil (2012) 53 Cal.4th 400, 417.) Here, the omitted element was uncontested and supported by unchallenged documentary evidence. Consequently, the alleged error in failing to submit this issue to the jury was harmless beyond a reasonable doubt.
Defendant's sole response to the Attorney General's harmless error argument is to cite People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo). However, Gallardo, which is the basis for defendant's other challenge to the strike finding, did not concern an instructional error, but a contention that the court looked beyond the record of conviction to make a required finding. These are not similar types of errors and do not merit similar prejudice analyses. --------
2. Juvenile Adjudications May Be Used as Strikes
Defendant challenges the current validity of the California Supreme Court's holding in People v. Nguyen (2009) 46 Cal.4th 1007 (Nguyen) that juvenile adjudications may be used as strikes. He claims that the holding in Nguyen has been undermined by subsequent United States Supreme Court and California Supreme Court decisions.
In Nguyen, the California Supreme Court considered whether the United States Constitution permitted the use of a prior juvenile adjudication as a strike "even though there was no right to a jury trial in the juvenile proceeding." (Nguyen, supra, 46 Cal.4th at p. 1010.) The prosecution had alleged as a strike that the defendant had suffered a prior juvenile adjudication at age 16 for assault with a deadly weapon. (Id. at p. 1013.) The defendant waived his right to a jury trial on that allegation, and the court found it true based on documents showing that the defendant had admitted in the juvenile proceedings that he had committed an assault with a deadly weapon. (Ibid.)
The California Supreme Court rejected the defendant's claim that Apprendi v. New Jersey (2000) 530 U.S. 466 barred the use of a juvenile adjudication as a strike. The court pointed out that "the literal rule of Apprendi . . . required only that a jury in the current proceeding determine the existence of" the prior juvenile adjudication. (Nguyen, supra, 46 Cal.4th at p. 1015.) Since the defendant had been afforded (but waived) the right to a jury trial in the current proceeding on the question of whether he had suffered the prior juvenile adjudication, the rule of Apprendi had not been violated. (Ibid.) Nevertheless, the defendant claimed that "the lack of a jury-trial right in the prior juvenile proceeding precludes all use of the resulting adjudication to enhance the maximum sentence for his current offense." (Id. at p. 1016.) The court disagreed. "Apprendi and its progeny concern an adult's right to jury findings, in the adult case, of all previously unadjudicated facts that bear upon the maximum sentence for the adult offense." (Id. at p. 1024.) Since the facts of the adult defendant's juvenile offense had been previously adjudicated in the prior juvenile proceedings, the use of the juvenile adjudication as a strike did not violate the defendant's Sixth Amendment rights. (Ibid.)
Defendant claims that the California Supreme Court's decision in Nguyen has been fatally undermined by the United States Supreme Court's decisions in Descamps v. United States (2013) 570 U.S. 254 (Descamps) and Mathis v. United States (2016) 579 U.S. ___ (Mathis).
In Descamps, a case concerning the requirements of a federal statute, not the scope of the Sixth Amendment right to a jury trial, the United States Supreme Court held that the statute did not permit a court to make "its own finding about" a previously unadjudicated fact concerning a prior conviction to increase a defendant's maximum sentence for a current offense. (Descamps, supra, 570 U.S. at p. 270.) One of the three reasons forming the basis for the court's statutory analysis was "avoid[ing] the Sixth Amendment concerns that would arise from sentencing courts' making findings of fact that properly belong to juries." (Id. at p. 267-269.) Consequently, the court found that the federal statute precluded the sentencing court from making factual findings beyond the elements of the prior offense. (Id. at p. 270.)
Mathis simply applied Descamps to a slightly different scenario under the same federal statute, and again concluded that a court was precluded from making factual findings beyond the elements of the prior offense. (Mathis, supra, 579 U.S. at pp. ___ [136 S.Ct. at pp. 2248-2252].) The court explained again that one of the three reasons for this rule was that the Sixth Amendment required "[t]hat . . . a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense." (Id. at p. ___ .)
Neither Descamps nor Mathis had any impact on the analysis applied in Nguyen. The Nguyen decision held that a prior juvenile adjudication could be used as a strike without violating the Sixth Amendment because its use did not require findings on any previously unadjudicated facts. Both Descamps and Mathis were concerned with the use of a prior conviction to enhance a sentence where its use required a finding on a previously unadjudicated fact. The Nguyen decision's reasoning was unaffected by those holdings.
Defendant also claims that the California Supreme Court's decision in Gallardo, supra, 4 Cal.5th 120 eliminated the underpinnings of the California Supreme Court's decision in Nguyen. In Gallardo, the issue was whether a trial court could properly decide, based on a preliminary hearing transcript, whether a former section 245, subdivision (a)(1) conviction had involved an assault with a deadly weapon (which would qualify as a strike) or instead an assault by means of force likely to cause great bodily injury (which would not qualify as a strike). The statutory definition of the offense included both means of committing the offense, and the defendant had entered a guilty plea that did not specify whether she had used a deadly weapon. (Gallardo, supra, at pp. 123-125, 136.) The trial court in Gallardo had reviewed the testimony of the victim at the preliminary examination in the prior case and determined that the defendant had used a deadly weapon to assault the victim in the prior case. (Id. at p. 126.) Based on Descamps and Mathis, the California Supreme Court held in Gallardo that a court may not rely on its own finding on a previously unadjudicated fact to increase the defendant's sentence without violating the Sixth Amendment. (Id. at pp. 132-134.)
The Gallardo decision too had no impact on the rationale of the Nguyen decision. What the Gallardo decision proscribed was "judicial factfinding" about a previously unadjudicated fact. (Gallardo, supra, 4 Cal.5th at p. 136.) The use of defendant's prior juvenile adjudication as a strike did not require "judicial factfinding" about a previously unadjudicated fact. The pertinent facts were adjudicated in the juvenile proceedings when defendant admitted the assault with a deadly weapon allegation. No factfinding as to the nature of defendant's prior offense was involved here. The Second District Court of Appeal recently reached this same conclusion in People v. Romero (2019) 44 Cal.App.5th 381, and we agree with the Second District's analysis. (Id. at pp. 388-390.) Since the Gallardo decision did not undermine the rationale for the Nguyen decision, we continue to be bound by Nguyen (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and we therefore reject defendant's contention.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P.J. /s/_________
GROVER, J.