THE PEOPLE, Plaintiff and Respondent, v. ENOC M. GARCIA, Defendant and Appellant.
No. B266889
Second Dist., Div. Five.
Mar. 6, 2017
7 Cal. App. 5th 364
Patricia S. Lai, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BAKER, J.—A jury convicted defendant and appellant Enoc M. Garcia (defendant) on two counts of assault with a firearm. The jury found defendant committed both offenses “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 any criminal conduct by gang members.” (
A. The Offense Conduct
Throughout the day on September 20, 2013, sisters Traynisha Foster (Foster) and Cristal Velez (Velez) were involved in a series of four fights with Myailah Hopson (Hopson). All three women lived in the same apartment building on the corner of West Adams Boulevard and Montclair Street in Los Angeles. Hopson‘s boyfriend, Shawn Jones (Jones), who was later identified at trial as a Black P-Stones gang member, also participated in each of the fights. Defendant, who was also identified at trial as a Black P-Stones gang member, was present and armed during the final fight, and he fired multiple gunshots, which hit two bystanders (the conduct that serves as the basis for both assault with a firearm convictions).
The first fight started around 10:00 or 11:00 a.m. According to Foster, “[Hopson] was already with gang members from BPS [i.e., Black P-Stones]” outside the apartment building, and she (Hopson) called Velez a bitch. That triggered the fighting, with Hopson and Velez pulling each other‘s hair and punching each other. While the fight was underway, Hopson‘s boyfriend Jones joined in and punched Velez, pulled her hair, and put his fingers in her eyes. Foster unsuccessfully attempted to pull Jones off Velez, and the fight ended when Velez stopped fighting and walked away. Foster and Velez went back to their apartment and Velez called her boyfriend, Jermaine King (King), and asked him to come to the apartment building to pick her up.
Before King arrived, and roughly 10 to 30 minutes after the first fight ended, Velez and Foster left their apartment and again encountered Hopson, this time outside a nearby 99-cent store on Adams Boulevard. A second fight erupted, involving sisters Velez and Foster on one side and Hopson, Jones, and an individual Velez described as “some other girl from BPS” on the other. The fight ended when Jones pushed Velez into the street and another unidentified man stopped Jones from kicking her. But minutes later, a third fight broke out in the same general area, with Hopson and Foster trading blows. Jones again participated in the fighting, punching Foster in her back and throwing her across the ground.
During the fighting up to this point, Foster heard Jones and Hopson making what she believed to be various gang-related references. Jones was “stating his gang name, like, ‘BPS,’ ” and saying “Blood” more than once; Foster also heard Hopson saying “Blood.”2 Foster specifically recalled Jones saying,
Beginning at approximately 1:00 p.m., Jones made calls to defendant and the two also exchanged several text messages.3 The first call was made at 1:03 p.m., and a minute later, defendant received another call from Jones, which lasted two minutes and 22 seconds. A later text message from Jones to defendant stated: “Come. It‘s Brackin, FRFR.” Defendant replied, “Ima catchin the bus, Berious O!” Then, at 1:34 p.m., Jones sent two text messages to defendant, the first of which stated, “Okay. Shawn need to go to the ER,” and the second that said, “WYA P-Stone.” Four minutes later, defendant texted messages to Jones stating, “I will” and “Be there 5 minutes.” At 1:54 p.m., defendant received a message from Jones stating, “Call when you on Adams.” One of Foster‘s friends in the apartment building later saw Jones and a person she recognized as defendant walking toward Hopson‘s apartment.
Velez was outside the apartment building when King, her boyfriend, arrived in response to her earlier request that he come pick her up. Velez walked back toward her apartment to get some clothes and encountered Hopson, who was standing in front of the window to her own apartment. At that point, Hopson and Velez again began fighting—the fourth fight that day. While the fight was in progress, Velez heard Hopson yell something to the effect of “bring that thing out that bag” to Jones, who was looking out of Hopson‘s apartment window. Velez also heard Jones make a similar “get that thing out that bag” statement, apparently to someone else she could not see.
As the two women continued to fight, Velez saw Jones exiting the apartment building gate toward where she was fighting with Hopson. Defendant, wearing a tank top, was walking behind Jones. Meanwhile, King (Velez‘s boyfriend) was running from where his car was parked toward where Hopson and Velez were fighting. Jones intervened in the fight by grabbing Velez, and King punched Jones, knocking him to the ground. Defendant then pulled out a gun and fired multiple shots in King‘s direction. King was hit by a bullet in his back, which exited through his chest (he survived), and two nearby bystanders were also hit: Erik Ross (in the back of one of his knees) and Kamila George (grazing her ankle). One of Foster‘s friends who lived in the apartment building heard the gunshots and called the police at 2:21 p.m. to report the shooting.
Defendant was arrested about a month after the shooting and he made a telephone call to Jones from jail. During the phone call, Jones asked defendant what he was charged with, and defendant told him it was attempted murder. Throughout the conversation, defendant and Jones repeatedly referred to each other as “Blood.” At one point, Jones told defendant, “I had—I could have did it by myself, Blood.” Defendant replied, “No, Blood. Be quiet, Blood. Be quiet.” After a third man joined the phone call, defendant said: “[T]hey have pictures from the camera, Blood. That nigga came to my car . . . . Hey, [inaudible] P Stone, nigga—nigga will think it out though.” Jones responded, “On Blood. I play my part—I should have never called you . . . .” Defendant replied, “Hey, Blood. Be quiet, Blood. Be quiet. They record this shit.”
C. Gang Expert Testimony at Trial
Both the prosecution and the defense presented gang expert testimony at trial. Los Angeles Police Officer Carlos Guerrero, who was then assigned to the gang enforcement detail for the department‘s southwest division, testified as the prosecution‘s gang expert. The defense‘s gang expert was Alex Alonso, a Chicano and Latino studies professor at California State University, Long Beach, who researched street gangs and created a website featuring various articles on street gangs.
1. Officer Guerrero‘s testimony
Officer Guerrero began his testimony by summarizing the sources of his knowledge and expertise concerning the Black P-Stones, or “BPS.” He explained his duties in the southwest division included documenting, investigating, and suppressing the Black P-Stones, including what he described as two of the gang‘s “subsets,” the Bittys and the Jungles. For seven years, Officer Guerrero had patrolled Baldwin Hills Village, which he described as an area where the Black P-Stones gang predominantly has a stronghold. He had a multitude of consensual contacts with Black P-Stones gang members to gather intelligence about the gang and gain awareness of “what‘s going on in the neighborhood,” including whether there were any existing or developing rivalries or feuds with other gangs. He had also worked on search warrants and arrests involving Black P-Stones gang members, consulted with other law enforcement officers concerning specific problems related to the Black P-Stones, and testified as an expert about the Black P-Stones on three prior occasions.
Significantly for purposes of this appeal, Officer Guerrero also detailed the historical development of the Black P-Stones gang. He explained Eugene
On the most recent occasion when Officer Guerrero checked a law enforcement gang database covering Los Angeles County, the database catalogued over 1,100 documented Black P-Stones gang members, with over 800 members being part of the “Jungle set” and over 300 “within the Bitty[s] set.” Guerrero identified the boundaries of territory claimed by the Black P-Stones and explained the Jungles and Bittys subsets controlled different parts of that territory—the Bittys’ turf being the northern part of Black P-Stones territory and the Jungles’ turf being the southern part. When specifically asked to describe the relationship between “a Jungles P-Stone member versus [a] Bitty[s] P-Stone member,” Officer Guerrero explained: “They are the same—same family, criminal organization. They are Black P-Stones. When they do a crime, they do it together, a Bitty or a Jungle, for the same purpose.” Officer Guerrero was also asked whether the Bittys and the Jungles were “two separate individual gangs” in light of the separate geographical regions they controlled; he answered, “They are part of one—they are part of one gang, the Black P-Stones.” He further explained the two subsets had “safe passage” or a “free pass” to enter the territory controlled by the other “because they are from Black P-Stones.”
Based on his training and experience, and from speaking to other officers, Officer Guerrero opined the Black P-Stones’ primary activities were “ADW shootings,” assaults with deadly weapons, robberies, narcotics sales, pimping and prostitution, homicides, witness intimidation, and assaults on police officers. The prosecution introduced two certified court records during Officer Guerrero‘s testimony to establish the predicate pattern of gang crimes that must be proven for the criminal street gang enhancement alleged against defendant to be found true. The first record revealed Brandon Lamar Jones was convicted of attempted murder and robbery for conduct occurring in December 2008. From speaking to the arresting officers and detectives who investigated those crimes, Officer Guerrero knew Brandon Lamar Jones was a documented, self-admitted Black P-Stones member from the Jungles subset. The second certified court record revealed Marquis Jewel Turley was convicted of attempted murder for conduct occurring in January 2011. Officer
When asked about identifiers that signal membership in the Black P-Stones gang, Officer Guerrero described clothing, tattoos, hand gestures, graffiti, and language associated with the gang. Black P-Stones members often wear red clothing and other attire associated with sports teams using red in their uniform colors, including the Anaheim Angels. Guerrero explained, however, that Black P-Stones members would also wear Toronto Blue Jays attire, despite the blue color associated with Crip gangs, “because they have a saying, ‘from Bitty[s] to the J‘s.’ It‘s Bitty[s] all the way to the Jungles. The Toronto Blue Jay bird, not the color blue, but the letter ‘J.’ ” As for tattoos, common among Black P-Stones gang members were tattoos of the letters “BPS,” the number “5,” the Roman numeral “X,” a pyramid with bricks, and others.
Turning to the particulars of this case, Officer Guerrero opined defendant and Jones (Hopson‘s boyfriend) were both members of the Black P-Stones gang. Officer Guerrero had previously encountered defendant personally, and knew him to be a self-admitted Black P-Stones member. Guerrero‘s opinion that defendant was a Black P-Stones member was also partly based on his tattoos: defendant had “BPS” tattooed on his stomach, “NRK” on his back, a red number “5” on his right arm, and a red “X” on his left arm. As to the “NRK” tattoo, Officer Guerrero explained it was an abbreviation for “No Respect Krew,” which was a further subclique of the Jungles subset of the Black P-Stones gang. As to Jones, Officer Guerrero formed the opinion that he was a Black P-Stones member based on, among other things, his conversations with other officers in the southwest division‘s gang unit, performing probation compliance checks, and “documentation through [police] department resources.” In addition, as to both men, Officer Guerrero had reviewed a photograph obtained from defendant‘s cell phone that depicted defendant together with Jones, with defendant wearing a Toronto Blue Jays hat, and Jones wearing an Anaheim Angels hat while making a hand signal disrespecting a rival gang.4
As to the charged shooting itself, Officer Guerrero explained the apartment building where the shooting took place was located in Black P-Stones territory, specifically in the area known as the Bittys’ turf. The prosecutor presented a hypothetical scenario to Officer Guerrero that was intended to track the facts of the case, asking him to assume, among other things, that two sisters get into a fight with a female neighbor; the neighbor‘s boyfriend, a Black P-Stones gang member, gets involved in the fights; the neighbor and
Officer Guerrero explained his opinion was “based on the fact that you have two documented, self-admitted gang members, Black P-Stones . . . . In the gang world, respect means everything. If you‘re disrespected in your own territory, you have to show front. You have to show face. That means when somebody comes into your neighborhood and your girlfriend is a Black P-Stone associate or a gang member and she‘s getting into a fight, you‘re going to defend that territory and that person just on the mere fact they are from the neighborhood. They are from your gang. [¶] . . . [¶] The time of day, broad daylight, what they are doing is showing no fear toward the community in what‘s going on. [¶] It‘s for the benefit and the association of the gang. You‘re going to show your face. You‘re going to show you‘re not going to be disrespected.” Officer Guerrero continued: “[T]he territory of the gang is very important. You don‘t want to lose a street, don‘t want to lose a portion or corner. Someone comes into your neighborhood and [is] assaulting either your friend, associate from your own gang, you have to show to the gang you‘re active, violent[,] and are going to defend, do whatever you need to do to take care of business to show your alliance to that gang.”
The prosecutor additionally asked Officer Guerrero to explain how gang members usually react when asked by other members of the gang to commit acts of violence. Officer Guerrero responded there would be repercussions (including getting kicked out of the gang, beaten up, or killed) if a gang member were to refuse a request to commit a crime or do something for the gang.
2. Alonso‘s testimony
During the defense case, defendant‘s attorney asked her expert, Professor Alonso, whether the “BPS Jungles and BPS City Stones [i.e., the Bittys]” were “one gang.” Alonso answered, “The way I look at it is I look at it as two different gangs under a similar umbrella.” In Professor Alonso‘s opinion, there was “an individuality to where [he]‘d call the [Bittys] one gang and the Jungle Stones a separate gang.” His view of this “individuality” included his
The defense asked Professor Alonso a series of hypothetical questions that incorporated the basic facts of the case and progressively added certain additional elements, for example, that one of the individuals involved in the fights was a Black P-Stones gang member. Asked to assume there were two Black P-Stones gang members present at the time of the shooting (which took place after a fight that originally began between two “girls“), Professor Alonso opined the shooting was not done for the benefit of a criminal street gang. When asked to further assume that, during one of the fights preceding the shooting, one of the Black P-Stones gang members had yelled “BPS,” Professor Alonso testified that his answer to the question of whether the “fight that involved the shooting” was done for the benefit of the gang would “depend[] on the context of how BPS was stated.” He asserted there were ways someone could say “BPS” that would not affect his previously expressed opinion, but he acknowledged the person was “probably” acting on behalf of the gang if “BPS” was stated in an aggressive manner.
D. Verdicts and Sentencing
The jury found defendant guilty on two counts of assault with a firearm in violation of
The trial court sentenced defendant to a total of 23 years eight months in state prison. On the count two assault with a firearm conviction, the court imposed an 18-year prison term, consisting of the upper term of four years for the conviction, plus a four-year term for the firearm enhancement and a 10-year term for the gang enhancement. The court imposed but stayed a three-year prison term for the great bodily injury enhancement on count two. On the count three assault with a firearm conviction, the trial court imposed a consecutive one-year term (one-third of the middle term of three years), plus
II. DISCUSSION
The outcome of this appeal is dictated in large part by two California Supreme Court cases that discuss what evidence is necessary to support a jury‘s true finding on a gang enhancement: People v. Prunty (2015) 62 Cal.4th 59 [192 Cal.Rptr.3d 309, 355 P.3d 480] (Prunty) and People v. Albillar (2010) 51 Cal.4th 47 [119 Cal.Rptr.3d 415, 244 P.3d 1062] (Albillar). Defendant contends the prosecution failed to prove Black P-Stones was a criminal street gang for purposes of
We therefore affirm defendant‘s convictions, but we reverse the sentence imposed. The Attorney General concedes, and we hold, the 16-month prison term the trial court imposed for the firearm enhancement alleged in count three of the information was unauthorized because the court imposed a prison term for the gang enhancement on that count as well; the relevant
A. Standard of Review
“In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the
B. Sufficient Evidence Supports the Jury‘s Gang Enhancement True Findings
Our assessment of the sufficiency of the evidence in this case appropriately includes testimony by qualified gang expert Officer Guerrero.5 An expert can properly “express an opinion, based on hypothetical questions
1. There is substantial evidence the Black P-Stones gang is a criminal street gang within the meaning of section 186.22
Defendant argues the proof at trial was deficient because he believes the Jungles and the Bittys are gangs in their own right and there was no evidence that would permit the jury to conclude they were part of one larger “ongoing organization, association, or group” (
In Prunty, supra, 62 Cal.4th 59, the California Supreme Court considered “what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets.” (Id. at p. 67.) The court held that “where the prosecution‘s case positing the existence of a single ‘criminal street gang’ for purposes of
The Prunty court identified several types of evidence the People may present to demonstrate the associational relationship between a gang and one of its subsets. The prosecution may, for instance, “show that various subset
“The critical shortcoming in the prosecution‘s evidence [in Prunty] was the lack of an associational or organizational connection between the two alleged Norteño subsets that committed the requisite predicate offenses . . . and the larger Norteño gang that Prunty allegedly assaulted [the victim] to benefit.” (Prunty, supra, 62 Cal.4th at p. 81.) That is, the prosecution introduced evidence of two predicate offenses involving three alleged Norteño subsets (different than the subset to which the defendant belonged), but the prosecution‘s gang expert never addressed the overarching Norteño gang‘s relationship to these three subsets and instead “simply described the subsets by name, characterized them as Norteños, and testified as to the alleged predicate offenses.” (Id. at pp. 82-83.) That, of course, meant the prosecution‘s gang expert never testified “that the subsets that committed the predicate offenses, or any of their members, self-identified as members of the larger Norteño association that [the] defendant sought to benefit.” (Id. at p. 82.) While the gang expert did testify Norteño gang subsets in general used the same name, symbols, colors, gang signs, and the like, he did not address whether the subsets whose members committed the predicate offenses were among those exhibiting these common characteristics. (Id. at pp. 83-84.)
Officer Guerrero‘s testimony does not suffer from the defects that rendered the expert testimony in Prunty insufficient. Unlike Prunty, the gang subsets involved in the proffered predicate offenses in this case were the very same subsets that were the subject of Officer Guerrero‘s testimony linking them to the overarching Black P-Stones gang. He testified the Bittys and the Jungles were the “same family, criminal organization,” “worked together,” and were “part of one gang, the Black P-Stones.” He explained that “[w]hen they do a crime, they do it together, a Bitty or a Jungle, for the same purpose.” And he testified the two subsets had “safe passage” to enter the territory controlled by the other “because they are from Black P-Stones.”
Unlike the expert testimony in Prunty describing ” ‘the Norteños’ ” as ” ‘a Hispanic street gang,’ ” which our Supreme Court found “purely conclusory and essentially of no use to the fact finder” (Prunty, supra, 62 Cal.4th at pp. 84-85), Officer Guerrero‘s testimony was backed by specific evidence. In scholastically reminiscent detail, he recounted the origins of the Black P-Stones chapter in Los Angeles, making it clear how and why the gang developed to include both the Bittys and the Jungles subsets.6 This was significant evidence of an associational connection: just as licit organizations like Berkshire Hathaway broaden their reach by mergers and acquisitions, so too can informal, loosely organized illicit associations, which, according to Officer Guerrero, is what happened when the Bittys needed reinforcements and recruited the Jungles to join them.7
In addition, there is a plethora of evidence in the record that the Bittys and the Jungles subsets self-identified as part of the Black P-Stones and “mutually acknowledge[d] one another as part of that same organization.” (Prunty, supra, 62 Cal.4th at p. 79.) That evidence includes the “all the way from the Bitty[s] to J‘s” saying that Black P-Stones members used according to Officer Guerrero—a saying that plainly conveys the Bittys and the Jungles are constituents of the Black P-Stones gang. The evidence of self-identification also includes the text messages on defendant‘s phone with numerous “P-Stone” references when the texting parties would refer to one another (including the “WYA [i.e., where you at] P-Stone” text Jones sent defendant when calling him to the scene of the fights), as well as the P-Stone reference made even during defendant‘s postarrest phone call from jail.
Also backing Officer Guerrero‘s opinion that the Bittys and the Jungles were associated subsets of the Black P-Stones gang was the law enforcement gang database he consulted, which listed the 1,100-plus individuals as members of the Black P-Stones, albeit further divisible into a 800-person
There was accordingly substantial evidence of an associational and organizational connection that unites members of the Black P-Stones, whether from the Bittys or the Jungles subset. The predicate offenses relied on by the prosecution were therefore both attributable to the Black P-Stones and
2. There is substantial evidence defendant committed the assaults in association with a criminal street gang
To prove an allegation under
This evidence amounts to proof that is just as substantial (and perhaps more so) as the key facts our Supreme Court found sufficient in Albillar to sustain a
C., D.*
*See footnote, ante, page 364.
Defendant‘s convictions are affirmed. The sentence imposed is reversed and the matter is remanded to the trial court for resentencing consistent with this opinion and
Kriegler, Acting P. J., and Kin, J.,* concurred.
Appellant‘s petition for review by the Supreme Court was denied June 21, 2017, S241368.
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.