Opinion
A jury convicted defendant, Melvin Lee Hunt, of three counts of second degree robbery, during which defendant acted as a principal and the crime benefited a street gang (Pen. Code, § 12022.53, subd. (e)),
Facts
On May 17, 2009, defendant drove his companion, a fellow gang member, to a fast-food restaurant where the latter held up, at gunpoint, three of its employees. Other facts will be discussed as they are relevant to the issues raised.
Issues and Discussion
1. Evidence Supporting the Gang Enhancement Findings
a. Testimony by the Prosecution’s Gang Expert
The prosecution’s gang expert testified that fear, intimidation and respect are “everything” in the gang culture and gangs want to be perceived as the meanest and toughest and want others to fear them, so they will be respected. Gang members or potential gang members have to do something to prove themselves to the gang and this can range from selling drugs to committing a robbery to shooting someone. Increasing the level of violence and committing crimes can benefit a gang in that more violent acts get more attention in the public and gamer more respect.
The expert testified that he became familiar with the Gateway Posse Crips (hereinafter, Gateway) in 1993 and he gave a history of the gang. He described the boundaries of their turf. He said that Gateway uses guns to conduct business and protect themselves to the same extent that police officers do. He went on, “They want to be out there, that their name wants to be known, they’re out there doing robberies, doing shootings, running around with guns, all that violence plays into who they are.” He said that selling marijuana and rock cocaine are the most common crimes committed by Gateway members but “street robbery is very, very common.” He said that robberies and being a felon in possession of a firearm are among their primary activities, but conceded that he could recall only one gang member being convicted of robbery around the time of these crimes. He said that
The expert was given a hypothetical in which self-admitted Gateway members are stopped in a car after a masked man robs three employees at a Del Taco and a dark blue ski mask, dark beanie and long-sleeved shirt, matching the description of that worn by the robber, and a gun are found in the car and one of the men admits that the proceeds of the robbery would be used to pay for parking tickets. He opined that the robbery would be for the benefit of the gang in that, “[I]f someone . . . does a crime . . . and they’re doing it for . . . themselves because they want money to go get high or drink, or buy themselves a gun for protection, once they get into that gangster lifestyle, . . . everything they do is synonymous with the gang at that point. Whether they’re going out there with a specific reason of doing the robbery for their personal gain, as long as people know that the individual is a gang member from this specific gang, they’re going to talk about how so and so from whatever gang it may be, did a robbery.[
He opined that in the hypothetical, the robbery would be at the direction of the gang because “The person who’s gone in and done the robbery . . . may have more experience. Maybe more well versed in how to pull the robbery
He opined that in the hypothetical, the robbery would be in association with a gang in that, “You’ve got two gang members from the same gang going to do a crime. . . . [T]hey’re associated with each other. It’s going to benefit the gang."
He opined that in the hypothetical, the robbery was done to promote, further or assist criminal conduct by Gateway members because “[G]ateway is notorious for dope sales and robberies.[
He conceded that if defendant committed these crimes just to get money to pay tickets “with no mitigating factors,”
Defendant here contends that the admission of the expert’s testimony “that . . . gang members who commit crimes are almost always benefitting their gang . . . [by] enhancing its] reputation . . . and instilling fear” violated his due process right to a fair trial. We disagree.
First, defendant’s assertion unfairly summarizes the expert’s testimony about how the commission of these robberies benefitted Gateway. He testified that robberies were among Gateway’s primary activities and members robbed fast-food restaurants. He cited defendant’s companion as an example of someone in Gateway who had elevated status because he had a history of having guns and committing robberies and assaults with a deadly weapon. He said that even if a member kept the proceeds of a robbery for himself, and the victim did not know the robber was a member of Gateway, the gang would still benefit because those involved in the robbery would tell someone else, it would get around the neighborhood, the perpetrators would get elevated status in the gang, the gang would get elevated status and respect in the community. The expert did not testify, as defendant asserts, that gang members who commit crimes are almost always benefiting the gang. His testimony was specifically addressed to the hypothetical given, which was based on the facts in this case. He made no generalities.
Our task is to determine whether the admission of the expert’s testimony concerning how these crimes benefitted Gateway violated defendant’s due process right. The admission of evidence results in a due process violation only if it makes the trial fundamentally unfair. (People v. Partida (2005)
In People v. Albarran (2007)
Here, in contrast, the robberies were alleged to have been committed to benefit Gateway or in association with or at the direction of Gateway, therefore the gang expert’s testimony was relevant. Additionally, defendant was charged with the substantive crime of active participation in a gang, and the testimony was relevant to this offense.
2. Sufficiency of the Evidence
In People v. Albillar (2010)
The Supreme Court went on to tie in the facts of the case with the gang expert’s testimony thusly: “Because each defendant was a member of the [gang], he could and did rely on the others’ cooperation in committing the offenses .... Defendants knew, because of the nature of the gang, that no one would be a ‘rat,’ which would be ‘one of the worst things ... the gang can have within itself.’ . . . Defendants also knew that fear of the gang would prevent [the victim] from reporting the incident to the police—and, indeed, in the days after[]” the crimes, two friends of other gang members “warned [the victim] and her family that [she] ‘would suffer with her life’ if they contacted the police.” (Albillar, supra,
At this point in the opinion, the California Supreme Court cited, inter alia, footnote 7 of this court’s opinion in People v. Ochoa
The Supreme Court also cited, in support of its conclusion, Morales, in which this court rejected the defendant’s assertion that reliance on evidence
The Supreme Court also cited People v. Martinez (2008)
Aside from the victim’s testimony in Albillar that the defendants cooperated with each other to commit the offenses and the evidence that she and her family were threatened with retaliation if they reported to police, all the remaining evidence supporting the Supreme Court’s finding of substantial evidence that the crimes were committed in association with the gang came solely from the gang expert. In fact, in her concurring and dissenting opinion in Albillar, Justice Werdegar observed, “The only evidence presented on the relationship of the offenses to the gang was the opinion of [the gang expert] . . . .” (Albillar, supra,
Here, likewise, defendant admitted to the police that he and his companion came together to commit the robbery—he as the driver and his companion as the robber. He also told the police that his companion was three years older than he was. He told them that he had not been the driver in any other robberies. He said that his companion directed him to go to the fast-food restaurant. The expert testified that the companion had an extensive history of having guns and committing robberies and assaults with deadly weapons. He opined that the more experienced gang member would direct the operation and be the actual robber while the less experienced person would drive the car and, in this regard, the robbery was at the direction of the gang. Additionally, defendant initially denied to police that he and his companion had participated in the robbery, which the expert testified elevated his status in the gang. Thus, as in Albillar, there was evidence apart from the gang expert’s that supported his opinion that the robbery had been committed in association with or at the direction of Gateway. And, as in Albillar, the
In Albillar, the gang expert also testified that the defendants’ gang had engaged in a pattern of violent, vicious and brutal crimes against rival gangs and residents in and outside their turf. (Albillar, supra,
The expert here testified that robberies were one of the primary activities of Gateway and commission of violent crimes enhanced the gang’s reputation in the community. Additionally, defendant’s companion had enhanced his standing within Gateway by committing robberies and assaults with deadly weapons. The expert’s testimony that the perpetrators of this robbery would tell at least one other person in the neighborhood about what they had done and it would get around the neighborhood and enhance their reputation in the gang and the gang’s status in the community was no more baseless and speculative
Also distinguishable is the holding of People v. Killebrew (2002)
Finally, defendant’s reliance on People v. Ramon (2009)
3. Imposition of Section 12022.53, Subdivision (e) Enhancement and Consecutive Sentence for Violating Section 186.22, Subdivision (a)
a. Section 12022.53, subdivision (e)(2)
The sentencing court imposed a 10-year enhancement under section 12022.53, subdivision (e) and sentenced defendant to a one-third consecutive term of eight months for his conviction of the substantive offense of actively participating in a street gang (§ 186.22, subd. (a)). Defendant here asserts that under section 12022.53, subdivision (e)(2), he cannot be sentenced for the
In People v. Brookfield (2009)
The question becomes whether Brookfield’s inclusion of section 186.22 penalty provisions within the umbrella of enhancements addressed in section 12022.53, subdivision (e)(2) should extend also to the substantive crime of active participation in a street gang under section 186.22, subdivision (a).
As already stated, the Supreme Court in Brookfield did not mention subdivision (a) in its listing of sentence enhancements and penalty provisions in section 186.22. Moreover, there can be no dispute that a substantive offense is neither a sentence enhancement nor a penalty provision. (See People v. Warinner (1988)
b. Section 654
Defendant claims the sentencing court should have stayed the term for his active participation in a criminal street gang because it was based on the same intent he had when he participated in the robberies, i.e., to benefit Gateway. We agree.
The prosecutor argued to the jury that one element of the former offense, i.e., that defendant willfully assisted, furthered or promoted felonious criminal conduct by members of the gang, was proven by defendant’s participation in these robberies. There was no evidence introduced that defendant participated in any other felonious conduct by members of Gateway.
In People v. Sanchez (2009)
Defendant’s eight-month sentence for active participation in a street gang (count 4) is ordered stayed pursuant to section 654. The trial court is directed to amend the abstract of judgment and minutes of the sentencing hearing to stay that term, making defendant’s total sentence 13 years. The trial court is further directed to amend the abstract of judgment and minutes of the sentencing hearing to show that defendant’s 10-year enhancement on count 1 was imposed under section 12022.53, subdivision (e) and not section 12022.53, subdivision (b) as both documents currently state. In all other respects, the judgment is affirmed.
McKinster, J., and King, J., concurred.
Appellant’s petition for review by the Supreme Court was denied August 10, 2011, S194436.
Defendant, himself, told police that his companion was a gang member.
However, as already stated, he conceded that if the robber did not tell the victim he was a gang member and did not wear distinctive gang clothing, it is possible the victim would not know the robber was a gang member.
However, as already stated, he conceded that around the time of these crimes, only one member of Gateway was convicted of robbery.
He did not specify what these mitigating factors might be.
In Albarran, the trial court had granted a motion for a new trial on the basis that there was insufficient evidence to support the jury’s findings that the charged offenses were committed for the benefit of a gang, but concluded that admission of the gang evidence was relevant to
There is no mention in the opinion about the identity of the other shooter or whether he was a member of the defendant’s gang or any other gang.
Defendant does not contend that this evidence was not relevant to the charged offense of actively participating in a gang.
This is Albillar’s only citation to Ochoa regarding this issue.
We note that defendant completely ignores these bases for the gang enhancement findings and confines his argument to whether the evidence supported the finding that the robbery benefitted Gateway, despite the fact that the enhancement finding must be affirmed upon our conclusion that any of the three bases was supported by substantial evidence. (See People v. Guiton (1993)
The victim was aware that two of her three assailants were members of the gang.
Thus, defendant’s argument, that evidence was necessary that defendant and/or his companion bragged about the robbery, is inconsistent with Albillar.
We note that this issue is currently pending before the California Supreme Court in People v. Mesa, review granted October 27, 2010, S185688.