Defendant Michael Resendez appeals following his jury conviction of (1) assault by means of force likely to produce great bodily injury with a gang enhancement and (2) assault with a deadly weapon. The jury also found true great bodily injury and prior prison enhancements. On appeal, defendant argues that under People v. Prunty (2015)
FACTS
On February 7, 2015 in Baldwin Park, defendant attacked Eliseo A., who was traveling by bicycle from the grocery store toward home. Just before his assault on Mr. A., defendant rode his bicycle past Mr. A. and yelled, "East Side Bolen." Mr. A. replied, "What did you say?" Defendant then got off his bike, and punched Mr. A. on the left eye and back of his head. Mr. A. hit defendant twice and then took him to the ground and held him there. While on the ground, defendant kicked Mr. A. in the head several times, bit his left wrist, and put his fingers in Mr. A.'s left eye. Mr. A. told defendant that he was not a gang member. During the struggle, defendant said things like: "This is my varrio," "Get this bitch off me," and "Homies come help me."
Police arrived and arrested defendant. While he was being transported to the hospital, defendant stated to police: "I'll fuck that fool up. This is my varrio, East Side Bolen." In prior contacts with the arresting officer, defendant had previously identified himself as an East Side Bolen gang member and, when asked, did not deny that his moniker was "Money Mike."
At trial, the victim and arresting officer testified to the events we have just described. In addition, the parties presented the following evidence.
1. Detective Acuna
Baldwin Park Police Detective Adam Acuna testified as an expert on criminal street gangs in Baldwin Park. He identified defendant as an East Side Bolen gang member from the Locos clique, based on prior consensual interactions Detective Acuna had had with defendant and on defendant's tattoos. The East Side Bolens had five cliques (smаller groups or subsets within the larger gang): the Locos, Rascals, Midgetcharros, Charros, and Dukes.
Detective Acuna testified that four rival gangs claim territory within Baldwin Park. The four gangs are East Side Bolen (defendant's gang), North Side Bolen, Kings Have Arrived, and South Side Des Madre. The boundaries of the East Side Bolen territory are, from the north, Ramona Boulevard east of the 605 Freeway; to the east, to the border with West Covina; and to the south, to Puente Avenue. There are also some factions of East Side Bolen north of Ramona Boulevard, on Los Angeles Street, Merced and Walnut, all east of the 605 Freeway.
Detective Acuna testified there are about 500 documented members of East Side Bolen (including all the cliques). This number includes those in custody, not in custody, and those who had moved out of Baldwin Park. Only a small group of about 20 members are dedicated and active, out of custody and still on the streets, and defendant was among this small group when he committed the assault in this case.
Detective Acuna described East Side Bolen's primary criminal activities, and opined that the attack on a victim like Mr. A. was committed to benefit the gang as a whole by instilling fear of the gang members in the community. This fear was intended to facilitate the commission of future crimes by gang members with impunity.
Detective Acuna also testified to the predicate felonies committed by Francisco Marin and Juan Ledezma, both of whom self-identify with the larger East Side Bolen gang in addition to the Rascals subset. Detective Acuna testified, "I have several contacts with Francisco Marin. He goes by Tiny by East Side Bolen Parque as well from the Rascals clique, which is another subset within East Side Bolen. He was convicted of possession of firearm where he fought and ran from officers during this incident." Further, Detective Acuna testified, "Juan Ledezma is also an East Side Bolen Parque gang member from the Rascals clique, who goes by Sicko. He was also arrested and convicted with possession of a firearm. He participated with other East Side Bolen Parque gang members."
2. Additional Testimony
In addition to the expert testimony of Detective Acuna, four other witnesses testified. Joshua Patino and Carmelo Placeres, incarcerated members of the
a. Mr. Patino
Mr. Patino testified that defendant "had to pull [him] down from prison to come here for [defendant]," and that he "wanted to come for [defendant]." Mr. Patino is serving a 13-year sentence for robbery and for beating up his cellmate in prison, who he described as "a rapist." Mr. Patino, who has known defendant for about 13 years, described defendant as loyal, respectful,
Defendant, who represented himself at trial, said during his examination of Mr. Patino that he wished he had been there when Mr. Patino beat up his cellmate in prison, and that Mr. Patino "should have got a purple heart or something." Mr. Patino testified thаt if defendant had been there, he would have expected defendant to back him up.
b. Mr. Placeres
Mr. Placeres testified he is a member of the Midgetcharros clique. He described defendant as "good hearted" and a "good person" who "looks out for folks around him, like family." When asked by defendant to further describe his character, Mr. Placeres replied, "Respectful. Loyal. To those who deserve it, you know, you're an upstanding guy in I guess in our culture, you know." Mr. Placeres described the tattоo on his own forehead that says "Bolen" as "pretty big," yet also testified he "know[s]" himself as from East Side Bolen Midgetcharros; "[p]retty much like in my eyes I'm a Charro and that's it."
c. Officer Felton
Officer Felton testified as a rebuttal witness, describing defendant's disrespectful behavior toward the police and others.
Officer Felton testified to defendant's behavior, in concert with another East Side Bolen gang member, in a park in territory claimed by their gang.
Officer Felton also testified that he had talked with one of defendant's character witnesses, Mr. Patino, about his (Mr. Patino's) gang membership, and that Mr. Patino told him "[t]hat he's an Eastsider," and "I believe he's a member of their Rascals clique."
d. Officer Honeycutt
Officer Honeycutt is now an undercover narcotics officer but previously was a gang officer with the Baldwin Park Police Department. He testified to an encounter he had with defendant in jail when he and other officers attempted to speak with him and complete a field information card. Defendant appeared to be under the influence, was very angry and upset, and refused to speak to them other than to yell profanities at them.
Officer Honeycutt was also familiar with both of defendant's character witnesses. He testified both men claimed membership in East Side Bolen Parque, though he was uncertain which subsets they clаimed. Officer Honeycutt testified that "it's common to see somebody from the Rascals hanging out with somebody from the Locos."
The jury found defendant guilty of the substantive offenses and found true the
Defendant filed a timely appeal.
DISCUSSION
1. 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
2. The STEP Act and Prunty
a. The background principles
The STEP Act imposes a sentencing enhancement on those who commit felonies "for the benefit of, at the direction of, or in association with any criminal street gang...." (§ 186.22, subd. (b).) As Prunty explains, "A criminal street gang, in turn, is defined by the Act as any 'ongoing organization, association, or group of three or more persons' that shares a common name or common identifying symbol; that has as one of its 'primary activities' the commission of certain enumerated offenses; and 'whose members individually or collectively' have committed or attempted to commit certain predicate offenses." ( Prunty, supra,
In Prunty , the court concluded the STEP Act "requires the prosecution to introduce evidence showing an associational or organizational connection that unites members of a putative criminal street gang. The prosecution has significant discretion in how it proves this associational or organizational connection to exist...." ( Prunty, supra,
The court offered several "illustrative examples" of strategies prosecutors may pursue to prove the necessary "associational or organizational connection." ( Prunty, supra, 62 Cal.4th at pp. 67, 76-81,
b. The evidence in Prunty
Defendant relies on Prunty , contending the evidence in his case "was not sufficient to demonstrate an associational or organizational connection between the Rascals subset [who committed the predicate offenses] and the larger East Side Bolen gang...." As may already be apparent from our recitation of the evidence, defendant is mistaken. The circumstances in Prunty stand in glaring contrast to the evidence in this case.
In Prunty , the defendant was charged with attempted murder and assault with a firearm. To prove a gang enhancement, the prosecution introduced testimony from a gang expert who had interviewed the defendant after his arrest. ( Prunty, supra,
As to the predicate offenses, the expert in Prunty testified that two Varrio Gardenland Norteños committed a variety of offenses, and that one Varrio Centro Norteño shot at a former Norteño gang member. The expert testified that the subsets referred to themselves as Norteños. ( Prunty, supra,
Prunty held the testimony just described was insufficient to prove "that the Sacramento-area Norteños were indeed the ones who committed the ...
The court concluded: "[T]he evidence provided no way for the jury to determine that the Norteños were an 'organization, association, or group' under the STEP Act's meaning-or, critically, that the alleged subsets that committed the predicate offenses were part of that group." ( Prunty, supra,
3. This Case
Unlike Prunty , the record in this case provides substantial, indeed compelling, evidence of collaboration, association, and direct contact among the various subsets of the East Side Bolen Parque gang-clearly allowing the jury to infer both that defendant and the subset that committed the predicate offenses identified with the larger East Side Bolen gang and that they shared connections with each other. Indeed, the contrasts between the evidence in this case and in Prunty are stark-both in the scope, nature and territory of the gangs and subsets at issue, and in the evidence presented of shared connections and identification with a single gang.
The first point is less significant, but illuminates the evidentiary differences between the two cases: the East Side Bolen gang and its subsets bear no similarity to the Sacramento-area Norteño gang and its subsets.
In short, this is a case where a gang, East Side Bolen, with 20 active members not in custody, and with five subsets, claims a well-defined area within a relatively small city also plagued by three rival gangs. This alone at least suggests the likelihood of collaboration among the subsets and identification by those subsets with East Side Bolen. But there is, as we have seen, much more.
Officer Honeycutt testified that it is common to see members of the Rascals subset hanging out with members of the Locos subset. Juan Ledezma, perpetrator of one of the predicate crimes, committed thаt crime in concert with other East Side Bolen gangsters. Detective Acuna testified that Mr. Ledezma and Mr. Marin, the perpetrators of the predicate crimes, both self-identified with East Side Bolen as well as with the Rascals subset. Mr. Patino, who Officer Felton identified as a member of the Rascals subset, and Mr. Placeres, who testified to membership in the Midgetcharros subset, agreed to be removed from prison to testify as character witnesses for defendant. Officer Honeycutt testified he is familiar with both of them and knows they both claim membership in East Side Bolen.
Indeed, it is difficult to conceive of more powerful, direct evidence of a long-term relationship of trust and collaboration between members of different subsets of East Side Bolen than is found in the testimony of Mr. Patino
Both Mr. Patino and Mr. Placeres specifically used the word "loyal" to describe defendant. Notably, Mr. Placeres had the word "Bolen" tattooed in large letters on his forehead, yet he testified that he thinks of himself only as a member of the Midgetcharros subset. Despite declaring self-identity only with the Charros, Mr. Placeres agreed to be removed from prison to help his Locos associate beat an assault conviction. (Mr. Patino and defendant also took the opportunity to promote the interests of their gang in court by bragging about and congratulating one another for the beating of a cell mate who they believed deserved retribution, and by declaring their desire to cover one another's backs.)
In short, could there possibly be any more direct evidence that members of different subsets "professed" and "exhibited loyalty to one another"? ( Prunty, supra,
We could go on, but the point is clear. Prunty tells us that "[e]vidence-even indirect evidence-showing collaboration among subset members, long-term relationships among members of different subsets, use of the same 'turf,' behavior demonstrating a shared identity with one another or with a larger organization, and similar proof will show that individual subsets are part of a larger group...." ( Prunty, supra, 62 Cal.4th at pp. 73-74,
In sum, defendant in this case was one of 20 East Side Bolen members who actively promoted his gang and protected its turf when he committed the
DISPOSITION
The judgment is affirmed.
WE CONCUR:
RUBIN, Acting P.J.
FLIER, J.
Notes
All further statutory references are to the Penal Code.
We need not provide further details of the underlying assault, because defendant's only argument on appeal is the sufficiency of the evidence of the gang allegations.