Opinion
B226877
12-02-2011
THE PEOPLE, Plaintiff and Respondent, v. DALLAS RAY WRIGHT, Defendant and Appellant.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA044175)
APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. Modified and, as so modified, affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Dallas Ray Wright appeals from the judgment entered following a jury trial that resulted in his convictions for two counts of attempted premeditated murder and two counts of assault with a semiautomatic firearm. Wright was sentenced to a prison term of 70 years to life. He contends: (1) the evidence was insufficient to support a finding he acted as an aider and abettor; (2) the evidence was insufficient to support gang enhancements; and (3) the trial court erred by imposing a 15-year minimum parole eligibility period on two counts. We agree with Wright's third contention, and modify the judgment accordingly. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The crimes.
At approximately noon on November 25, 2008, Los Angeles County Sheriff's Detective Richard Cartmill and Sergeant Allen Harris were on patrol in an unmarked vehicle, wearing civilian clothing and bulletproof vests. They headed to a Lancaster mobile home park to investigate recent graffiti related to the Mid Town Criminals ("MTC") criminal street gang.
In the trailer park, Harris pulled the car to the wrong side of the road as Cartmill pointed out one of the trailers. Cartmill observed Wright, whom he recognized, driving past in a green Honda Civic. The Civic slowed as it passed the deputies' car. Cartmill and Wright looked directly at each other. Cartmill knew Wright was an MTC gang member who did not live in the trailer park. The deputies decided to stop Wright to question him about the spate of graffiti. To that end, they made a U-turn, caught up with Wright's car, displayed their badges, and yelled at Wright to stop. Wright looked at them and sped off. He led the deputies on a five-to-ten minute pursuit in a "big circle" around east Lancaster. The deputies called for backup. At one point, Wright appeared to be talking on a cellular telephone.
The deputies followed Wright back to an area near an apartment complex next to the trailer park. Wright's car slowed. MTC gang member Marcos R. emerged from behind some bushes. Wright pointed at Marcos R., then at the deputies. Marcos R. immediately pulled out a gun and fired five to six shots at the deputies, some of which hit their vehicle.
Cartmill and Harris ducked, and Harris swerved and accelerated to evade the gunshots. Marcos R. retreated to the mobile home park. Wright drove off at a high rate of speed; he was eventually apprehended approximately a mile and a half from the shooting location.
After a search of a portion of the mobile home park, during which officers were assisted by two canines, Marcos R. was discovered hiding in a bathroom in a trailer home. Deputies recovered a .9-millimeter semiautomatic pistol from the bathroom, and observed MTC graffiti inside the trailer. A bullet fragment and six .9-millimeter casings were found near the spot from which Marcos R. had fired the gun.
b. Wright's interview with detectives.
Detectives Kelly Simon and Rob Jones interviewed Wright after his arrest. The interview was audiotaped and played for the jury at trial. Wright admitted membership in the "Outlaws" clique of the MTC gang. His moniker was "Trigger." He had just dropped Marcos R. off and was driving away from the mobile home park when he saw the deputies' vehicle. Wright believed, based on Harris's appearance, that the deputies were rival gang members. Rival gang members had previously fired shots at Wright's car. When Wright saw the deputies' vehicle speed up, he fled, believing the gang rivals were chasing him.
While driving, Wright telephoned Marcos R. and told him he was being chased. Marcos R. replied, " 'Don't even trip. I got you. I got you.' " Marcos R. suggested that Wright drive by the mobile home park to a spot near some apartments. Wright did so, and passed Marcos R. He then heard gunshots. He was startled to learn the occupants of the vehicle following him were deputies.
Wright admitted that he knew Marcos R. had a .9-millimeter gun, and that he expected Marcos R. to react violently in some fashion when his pursuers drove past. Indeed, he expected that a "violent confrontation" of some sort would transpire. Wright thought Marcos R. might throw a brick at the vehicle. He also "pretty much expected the nine millimeter." He stated that the gang did not use a gun "in every case" and he did not know exactly what Marcos R. was going to do.
c. Gang evidence.
Detective Cartmill testified regarding the characteristics, primary activities, and predicate crimes of the MTC gang. MTC was a criminal street gang based in Lancaster, with over 100 members. MTC initially stood for "Mexicans Taking Control," but changed its name to Midtown Criminals when the gang moved to the Antelope Valley and began to accept non-Mexicans as members. MTC's rivals included the Crazy Minded and Lancas gangs.
Because Wright does not challenge the sufficiency of the evidence on these points, we do not recite the details of Cartmill's testimony here except as it is relevant to the issues presented on appeal.
Prior to the shooting, Cartmill had had several contacts with Wright. During those encounters, Wright was with other MTC gang members and appeared to be in a position of authority. Wright had admitted his gang membership. Cartmill had observed Wright at the Antelope Valley Fair with five or six other MTC members, including Marcos R. . Wright acknowledged that he was known as "Trigger" because he could obtain guns.
During a probation search of a residence of another gang member in 2009, Los Angeles Deputy Sheriff Steven Crosby discovered photographs of MTC gang members, including Wright, and a letter from Wright. The photographs depicted, inter alia, Wright standing in the center of groups of MTC gang members, who were all throwing MTC gang signs. Generally, gang leaders are positioned in the center of such photographs. The letter, written by Wright, included his name and booking number, and was signed "Triggs." In it, Wright identified himself as the second in command of the MTC gang. An individual of that rank would have the power to tell other gang members to take actions on his behalf.
Marcos R. , the shooter, was also an MTC gang member known as "Bugsy." He had admitted his gang membership to Cartmill. At the time of the shooting, he was 16 years old. Gang members often ask juveniles to commit crimes for them because juveniles usually do not have a significant criminal record and consequently are not subject to probation or parole searches; they also are generally subject to less stringent penalties if caught.
"Respect" is of paramount importance to gang members. A gang member earns respect, as that term is used in the gang culture, by committing violent or extreme acts for the gang. If a gang member personally helped another gang member shoot at gang rivals, he would earn respect in his own gang. Shooting or killing a law enforcement officer would earn a gang member tremendous "respect."
When given a hypothetical question based upon the facts of the case, Detective Michael Thompson, testifying as an expert, opined that a shooting such as the one at issue here would benefit the MTC gang by increasing the gang's notoriety and instilling fear and intimidation in the neighborhood.
Neither Cartmill nor Thompson had ever heard of gang members throwing bricks at rivals who were chasing them.
2. Procedure.
Trial was by jury. Wright was convicted of the willful, deliberate, and premeditated attempted murders of Harris and Cartmill (Pen. Code, §§ 664, 187, subd. (a)) and two counts of assault with a semiautomatic firearm (§ 245, subd. (b)). The jury found all counts were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)) and that a principal personally and intentionally used and discharged a firearm during commission of the offenses (§ 12022.53, subds. (b), (c) & (e)(1)). Wright's new trial motion, brought on the grounds the evidence was insufficient to prove he acted as an aider and abettor, was denied. The trial court sentenced Wright to a term of 70 years to life in prison. It imposed a restitution fine, a suspended parole restitution fine, court security fees, and criminal conviction assessments. Wright appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. The evidence was sufficient to prove Wright's guilt as an aider and abettor.
When determining whether the evidence was sufficient to sustain a criminal conviction, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Snow (2003) 30 Cal.4th 43, 66; People v. Carrington (2009) 47 Cal.4th 145, 186-187; People v. Halvorsen (2007) 42 Cal.4th 379, 419.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is not warranted unless it appears " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Zamudio (2008) 43 Cal.4th 327, 357.) The same standard applies when the conviction is based primarily upon circumstantial evidence. (People v. Zamudio, supra, at p. 357; People v. Maury (2003) 30 Cal.4th 342, 396.) " ' " 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. " 'If 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.' " [Citations.]' " ' " (People v. Story (2009) 45 Cal.4th 1282, 1296.)
Wright was tried and convicted as an aider and abettor to Marcos R. , who fired the shots at the officers. "Under California law, a person who aids and abets the commission of a crime is a 'principal' in the crime, and thus shares the guilt of the actual perpetrator." (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117; § 31.) A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Atkins (2001) 25 Cal.4th 76, 92; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1158; People v. Campbell (1994) 25 Cal.App.4th 402, 409.) "The 'act' required for aiding and abetting liability need not be a substantial factor in the offense. ' "Liability attaches to anyone 'concerned,' however slight such concern may be, for the law establishes no degree of the concern required to fix liability as a principal." [Citation.]' [Citation.]" (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743; People v. Garcia (2008) 168 Cal.App.4th 261, 272.)
Among the factors that may be taken into account when determining whether a defendant aided and abetted a crime are presence at the crime scene, companionship, and conduct before and after the offense. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) Mere presence at the scene of a crime, knowledge of the perpetrator's criminal purpose, or the failure to prevent the crime do not amount to aiding and abetting, although, as noted, these factors may be taken into account in determining a defendant's criminal responsibility. (People v. Garcia, supra, 168 Cal.App.4th at pp. 272-273; People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530; People v. Verlinde, supra, 100 Cal.App.4th at p. 1161; People v. Campbell, supra, 25 Cal.App.4th at p. 409.) Whether a defendant aided and abetted a crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment. (People v. Campbell, supra, at p. 409; In re Juan G., supra, at p. 5.)
There was sufficient evidence to establish the elements of aiding and abetting in the instant case. Despite Wright's arguments to the contrary, the evidence was sufficient to prove he had knowledge of Marcos R. 's unlawful purpose to shoot at and attempt to kill the deputies, as well as the intent to aid and encourage Marcos R. in that endeavor. During Wright's interview with detectives, he stated that he believed rival gang members were following him. Rival gang members had previously shot at his car. He admitted he telephoned Marcos R. , a fellow gang member, who offered assistance. Wright admitted to detectives that he believed some kind of violent confrontation would transpire between Marcos R. and his pursuers. He also admitted he knew Marcos R. had a gun, and "pretty much expected" he would use it. From this evidence, the jury could readily infer Wright fully expected and intended that Marcos R. would shoot at the pursuers with the intent to kill them.
There was likewise ample evidence Wright acted to encourage and instigate commission of the crime. The evidence showed he was second in command in the gang, whereas Marcos R. was a more junior member. Wright thus had the power to tell Marcos R. to take actions on his behalf. He admittedly telephoned Marcos R. to ask for assistance with the persons pursuing him. Marcos R. was waiting, with a gun, at the spot to which Wright led his pursuers. Once there, Wright pointed at Marcos R. and then at the deputies, and Marcos R. immediately began shooting multiple rounds directly at the deputies' vehicle. This evidence readily gives rise to the inference that Wright ordered Marcos R. to shoot at the deputies, and led them to a prearranged spot where Marcos R. could do so. The manner of shooting—firing multiple rounds from a semiautomatic weapon directly at the deputies' vehicle—readily gives rise to the inference that Marcos R. , acting on Wright's behalf, attempted to kill the deputies. In sum, the evidence was more than sufficient to show Wright instigated, encouraged, and facilitated the shooting.
Wright argues the evidence was insufficient to prove he acted as an aider and abettor because there was no showing he knew or intended that Marcos R. would use a gun or attempt to kill the deputies. He contends he believed "the most that [Marcos R.] would do would be [to] throw a brick" at the pursuers. His action of "[s]imply calling [Marcos R.] and asking [him] for help" was insufficient to prove his intent to kill. In Wright's view, "All that can be inferred from the evidence . . . was that appellant wanted help via a distraction so that he could not himself be in danger from the gang members he thought were following him." Accordingly, he urges, the evidence amounted to nothing more than "mere suspicion or speculation."
We are not convinced. Wright's arguments amount to a request that we reweigh the evidence on appeal. This is not the function of an appellate court. Wright's arguments "merely presented the jury with a credibility determination that is not reviewable on appeal." (People v. Mejia (2007) 155 Cal.App.4th 86, 99.) "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181.) Here, the jury was not obliged to credit Wright's statements that he believed Marcos R. would do nothing more than throw a brick at his pursuers. Neither Deputy Cartmill nor Detective Thompson had ever heard of a gang member throwing a brick at gang rivals under similar circumstances. Indeed, the conclusion that Wright only intended or expected Marcos R. to throw a brick seems rather farfetched, given that both he and Marcos R. were gang members, Wright's vehicle had previously been shot at by gang rivals, and Wright knew Marcos R. had ready access to a gun. Conflicts in the evidence and the inferences that can be drawn therefrom do not justify the reversal of a judgment; it is the exclusive province of the jury "to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" (People v. Maury, supra, 30 Cal.4th at p. 403.) The evidence was sufficient.
2. The People were not required to prove that the robbery promoted other criminal activity by gang members.
Section 186.22, subdivision (b)(1), provides for a sentence enhancement when a defendant is convicted of enumerated felonies " ' "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."' " (People v. Hernandez (2004) 33 Cal.4th 1040, 1047, italics added; People v. Gardeley (1996) 14 Cal.4th 605, 617; People v. Hill (2006) 142 Cal.App.4th 770, 773.) Wright challenges the sufficiency of the evidence to prove the intent element of the gang enhancement.
In addition to the foregoing elements, the People must prove the gang " '(1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called "predicate offenses") during the statutorily defined period. (§ 186.22, subds. (e) and (f).)' " (People v. Hernandez, supra, 33 Cal.4th at p. 1047, italics omitted.) Wright does not raise a sufficiency challenge concerning these elements, implicitly conceding the sufficiency of the evidence offered in support of them. Accordingly, we do not address them here.
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There was ample evidence to support the jury's conclusion that Wright aided and abetted the shootings with the intent to promote, further, or assist in criminal conduct by the gang's members. There is no dispute the shooting here was gang-related. Wright, the gang's second-in-command, ordered a more junior gang member to shoot at persons perceived to be the members of a rival gang. These actions obviously benefitted the MTC gang in that the shooting was an attempt to harm gang rivals. Detective Thompson, a gang expert, testified that a shooting such as the one here would benefit the MTC gang by increasing its notoriety and instilling fear and intimidation in the community. This evidence was sufficient to prove the intent element. (See People v. Albillar (2010) 51 Cal.4th 47, 63 ["Expert opinion that particular criminal conduct benefitted a gang by enhancing its reputation . . . can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22[, subdivision] (b)(1)"].)
Relying on the majority opinions in Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 (Briceno), and Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), Wright urges that the intent element was unproven because the crimes were not committed to facilitate criminal acts other than the assaults and attempted murders. In his view, evidence is insufficient to prove a gang enhancement unless the People establish that the defendant intended to promote criminal conduct by the gang apart from that involved in the underlying crime. We disagree.
In Garcia, the defendant gang member robbed a victim in the heart of the gang's territory, and identified himself by his gang moniker. (Garcia, supra, 395 F.3d at p. 1103.) A divided panel of the Ninth Circuit concluded this evidence was insufficient to support the gang enhancement, explaining, "there is no evidence indicating that this robbery was committed with the specific purpose of furthering other gang criminal activity, and there is nothing inherent in the robbery that would indicate that it furthers some other crime." (Ibid.) Neither the facts of the crime nor the expert's testimony established "what criminal activity of the gang was furthered or intended to be furthered by the robbery . . . ." (Ibid.) Following the reasoning in Garcia, a divided panel in Briceno concluded the specific intent requirement requires some evidence, aside from a gang expert's "generic testimony" and the fact of the defendants' gang membership, supporting an inference the defendant committed the crime " 'with the specific intent to facilitate other criminal conduct by the [gang].' " (Briceno, supra, 555 F.3d at pp. 1079, 1083.)
Wright's arguments, along with Garcia and Briceno, have been rejected by People v. Albillar, supra, 51 Cal.4th 47. Albillar held, "the scienter requirement in section 186.22(b)(1)—i.e., 'the specific intent to promote, further, or assist in any criminal conduct by gang members'—is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Id. at p. 66; see also, e.g., People v. Vazquez (2009) 178 Cal.App.4th 347, 353-354; People v. Romero (2006) 140 Cal.App.4th 15, 19-20; People v. Hill (2006) 142 Cal.App.4th 770, 774 [there is "no requirement in section 186.22 . . . that the defendant's intent to enable or promote criminal endeavors by gang members must [be] relate[d] to criminal activity apart from the offense the defendant commits"].) Further, Albillar rejected the notion that section 186.22 requires that a defendant have the specific intent to promote a gang-related crime: "The enhancement already requires proof that the defendant commit a gang-related crime in the first prong—i.e., that the defendant be convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang. [Citation.] There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members. [Citations.]" (People v. Albillar, supra, at p. 67, italics omitted.)
Wright acknowledges Albillar, but nonetheless contends Briceno and Garcia are "better reasoned." We, of course, are bound to followAlbillar, which is fatal to Wright's argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
3. Sentencing error.
The trial court imposed a sentence of 15 years to life in prison on count 1 (attempted murder). Because the jury found a principal discharged a gun, and the crime was committed for the benefit of a criminal street gang, the court imposed a consecutive 20 years pursuant to section 12022.53, subdivisions (c) and (e)(1). Under the street gang enhancement statute, section 186.22, subdivision (b)(5), the court further imposed a minimum parole eligibility period of 15 years. The court imposed the same sentence on count 2 (attempted murder), to run concurrently to that imposed on count 1.
Wright urges that this was error. He posits that because he was not the actual shooter, the trial court erroneously imposed the 15-year minimum parole eligibility period on both counts. The People concede the point, and we agree. As noted, the jury found true allegations that Wright committed the attempted murders for the benefit of a criminal street gang, and that a principal personally and intentionally discharged a firearm. Section 186.22, subdivision (b)(5) provides for a minimum parole eligibility period of 15 years for persons who commit specified felonies for the benefit of a criminal street gang. Section 12022.53, subdivision (e)(1) provides that the firearm enhancement applies to all principals when a gang enhancement is found true. (People v. Gonzalez (2010) 180 Cal.App.4th 1420, 1424-1425.) However, section 12022.53, subdivision (e)(2) provides an exception. That subdivision provides: "An enhancement for participation in a criminal street gang" pursuant to section 186.22 "shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense." Therefore, as Wright contends, the 15-year minimum parole eligibility period on counts 1 and 2 was imposed in error. (People v. Gonzalez, supra, at p. 1424.) We order the judgment modified accordingly.
DISPOSITION
The 15-year minimum parole eligibility period imposed pursuant to section 186.22, subdivision (b)(5) is stricken on counts 1 and 2. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections. As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
KLEIN, P. J.
CROSKEY, J.