People v. Boyd CA5 ( 2015 )

Filed 3/10/15 P. v. Boyd CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F067311
Plaintiff and Respondent,
(Super. Ct. No. 12CM4129)
v.
DARIUS LONNELLE LERENZO BOYD, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Thomas
DeSantos, Judge.
Thomas M. Singman, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Darius Lonnelle Lerenzo Boyd was charged with robbery (Pen. Code,1
§ 211; counts 1 & 3), assault by means of force likely to produce great bodily harm
(§ 245, subd. (a)(4); count 2), and active participation in a criminal street gang (§ 186.22,
subd. (a); count 4). The information also alleged that he committed the crimes
underlying counts 1 through 3 for the benefit of, at the direction of, or in association with
a gang (§ 186.22, subd. (b)). The jury convicted defendant as charged on counts 1 and 4,
found him guilty of the lesser included offenses of simple assault (§ 240) and grand theft
(§ 487, subd. (c)) on counts 2 and 3, respectively, and found true the special allegation.
The court sentenced him to 15 years four months in state prison.2
On appeal, defendant makes two contentions. First, as to count 4, the evidence did
not establish that at least two gang members contributed to felonious criminal conduct.
Second, as to counts 1 through 3, the evidence did not support the special allegation. In
affirming the judgment, we find substantial evidence showing that (1) at least two gang
members were involved in a felony; and (2) defendant committed the offenses underlying
counts 1 through 3 in association with a criminal street gang.
STATEMENT OF FACTS
I. Prosecution case-in-chief.
a. Leanne Laughlin.
On the evening of June 18, 2012, Laughlin purchased a matchbook at Quick Shop
Market (Quick Shop), located on the corner of Phillips Street and Scott Street in Hanford,
California. As she was leaving the store, one of three African-American men who were
standing outside called out, “Hey, little mama.” Laughlin greeted him, but continued to
1 Subsequent statutory citations refer to the Penal Code.
2 Specifically, the court imposed (1) a principal term of three years, plus a 10-year
gang enhancement (§ 186.22, subd. (b)(1)(C)), on count 1; (2) a subordinate term of eight
months (see id., subd. (d); § 1170.1, subd. (a)) on count 2; and (3) a subordinate term of
eight months, plus a one-year gang enhancement (see §§ 186.22, subd. (b)(1)(A), 1170.1,
subd. (a)), on count 3. Execution of punishment on count 4 was stayed (see § 654).
2.
walk away. The trio followed her on Phillips Street. One commented, “I want to take
you down.” Laughlin responded, “I don’t really know what you mean by that, but if you
mean what I think you mean, you’re just a couple years older than my daughter.” The
men asked her about the amount of money in her purse and for the personal identification
number of her “EBT” card. When they reached the end of the street, a fourth African-
American male appeared, pointed a gun at Laughlin’s head, and took her purse. The
armed man walked toward Quick Shop as he rummaged through the purse. Meanwhile,
the other three men were “laughing and chuckling.” Laughlin surmised:
“[T]hey were friends with the guy who had my purse …. [¶] … [¶] …
[T]heir reaction to when he came up, you know, they didn’t react to it as if
they didn’t know who he was or where he came from. [¶] … [¶] … They
didn’t do anything.”
Laughlin confronted the armed man outside Quick Shop and asserted, “I don’t
give a fuck if I don’t have no fucking money. This is my fucking purse and I want my
fucking purse back.” The armed man punched her in the head. Laughlin “fell back,” but
then “started hitting him.” She was struck repeatedly by both the armed man and one of
the three men who initially followed her. Laughlin sustained bruises on her face and arm.
After the assault ended, she entered and remained inside the store until the police arrived.
Surveillance cameras recorded the altercation.3
b. Julian Cruz.
On or about June 19, 2012, at approximately 3:00 p.m., Cruz, a snow cone vendor,
was walking on Third Street in Hanford when two African-American men restrained his
arms and neck. Two other African-American men took $20 or $30 out of his pockets.
The four fled the scene on foot.
3 The jury watched this footage.
3.
c. Adam Yingling.
On or about June 25, 2012, Yingling and Rachel Azevedo, a photojournalist and
news reporter, respectively, visited Quick Shop, where they attempted to interview
individuals about the recent string of robberies in the area. At trial, Yingling testified:
“When we got to the store it was relatively quiet…. I think there was a
couple of people wandering outside of the store when we got there.
[¶] … [¶] … [B]y the time we went in to talk with the clerk, a lot of people
started showing up and making noise, and then by the time we left there
was maybe about a dozen-ish people around the store congregating.
[¶] … [¶]
“… They were all African-American mostly. There was a couple of
Hispanics off to the side. [¶] … [¶] … There was several youthful people I
would say maybe under 20, more than 13, you know, age-wise. They, a
group of about 9, maybe 12 people were congregating around us asking me
questions, saying like, ‘Hey, camera man, are you recording?’ [¶] … [¶]
“… We walked across the street sort of catty-corner to the store and
where our van was parked and I put the camera on a tripod then. [¶] … [¶]
… They followed us out of the store. Some were out of the store, some
were in the store. Most of them followed us outside of the store and kind of
stood in the middle of the street. A couple of them came over to me and
tried to talk to me.”
The interlopers made several remarks:
“How long you all gonna be out here? [¶] … [¶] … We don’t know but
moving dope in we crippen out here. [¶] … [¶] … No people robbed,
people. [¶] … [¶] … You all recording? [¶] … [¶] … Why you out here
then? [¶] … [¶] … Ain’t nothing worth recording why you all out here
then? Get up out of here you all (inaudible). [¶] … We crips out here man
(inaudible). [¶] … [¶] … What’s going on news camera man. [¶] … [¶]
… Hey you wanna know the real real story…. Let me see…. Uh let me
see the mic so (inaudible)…. [¶] … [¶] … Tell her to come over here.
She’s always giving a fake story…. [¶] … [¶] … Keep recording and I’m
gonna show you what this mag do. [¶] … Hey whenever you all ready to
record something call us. [¶] … We go harder than Fresno. [¶] Man yeah
we go hard out here in the little town of Hanford man we crips. [¶] …
Little dusty town we going. We going ain’t nothing but, ain’t nothing out
here, I’m saying. Our niggers got five six malls in Fresno.”
4.
Yingling “hot-roll[ed]”4 the encounter as a precaution.5
d. Detective Cory Mathews.
Mathews interviewed defendant on June 26, 2012.6 When Mathews asked
defendant about his whereabouts on June 18, 2012, defendant replied that he was
“probably by [Quick Shop]” or “down the street.” He denied seeing anything unusual or
being with his brother, Marcus Porter. Mathews reminded defendant that the store’s
surveillance cameras recorded Laughlin’s assault. Defendant backtracked:
“I don’t know, I don’t know if she was drunk and she got in my face
yelling. [¶] … [¶] … [S]he walking down the street yelling. I have an air
s[oft] gun[7] on me. [¶] … [¶] … I threw it somewhere[.] [¶] … [¶] …
She got in my face and I don’t like the people get in my face, that makes
me mad. [¶] … [¶] … I was just talking to her. [¶] … [¶] … My brother
was talking to her. [¶] … [¶] … And they walked down the street
somehow she came back to me yelling and then I got mad. [¶] … [¶] …
So I hit her.… [¶] … [¶]
“… Me and my brother walk down the street with a girl ….
[¶] … [¶] … I told her shut up bitch, then we argued. Then I said stuff and
shit to her then I walk down the street. That’s all[.] [¶] … [¶] … I threw
her purse on the ground. [¶] … [¶] … I didn’t have [the air soft gun]
somebody else had it. And then, then somebody else had it and I took it
from them[.] [¶] … [¶]
“… [W]e got back down the street. I know you all seen on the
camera …. [¶] … [¶] … [W]ent down the street I didn’t want to hold [the
air soft gun] no more so I said here man take this. [¶] … [¶] … Somebody
that was next to me. I just handed it off to him …. [¶] … [¶] … And then
the girl came to me talking just talking and yelling and shit …. [¶] … [¶]
4 Yingling testified that “hot-rolling” means “basically turn[ing] the [video] camera
on record mode and leav[ing] it rolling for a duration of time.”
5 The jury watched this footage.
6 The jury watched a video recording of this interview.
7 Mathews testified that an air soft gun is “a plastic toy replica that shoots small
plastic pellets,” is “relatively the same exact size and shape of real guns,” and “look[s]
fairly real.”
5.
… [S]o I got mad. I hit her, she didn’t hit her cause she was a female but I
was mad.”
Defendant denied planning to rob Laughlin. He later clarified:
“Somebody else was talking about robbing somebody …. [¶] … [¶] … I
heard somebody say let’s rob somebody. [¶] … [¶] … [W]e go down to
the store and chill until I seen the girl I tried to get with her[.] [¶] … [¶] …
[T]hey rob or somebody robbed her and then shit I had the purse I threw the
purse on the ground. [¶] … [¶] … They robbed man. Yeah they robbed. I
had her purse. [¶] … [¶]
“… [I was with] Little C. [¶] … [¶] … Little C is a Mexican dude.
[¶] … [¶] … And they went down there Little C robbed her. [¶] … [¶] …
[Little C had] [m]y gun yeah. Then I got, I took it, he gave it to me down
the street. [¶] … [¶]
“… I walked down with it in front of the camera then I didn’t want
to hold it no more so I said here have it take this. The lady was yelling
somebody robbed everybody had black on. I had black but she just came to
me you know so shit I got mad and I come on I ain’t even the one that did it
to you. I would tell her if I the one that did it to her. She just kept on and
kept on and kept on and kept on. I got mad.”
Next, Mathews inquired about the theft of an “ice cream man.” Defendant
admitted witnessing the incident, but denied stealing any money or knowing the identities
of the culprits:
“Dude with the ice cream whatever he is. [¶] … [¶] … I was there they
robbed him I ran with them. [¶] … [¶] … I don’t know was like say three
maybe four people. [¶] … [¶] … And I was with them when they robbed
him. [¶] … [¶] … I think twenty-four dollars. [¶] … [¶] … I ran with
them cause if I was there (inaudible) the police see me walk they’re gonna
stop me cause I was there with em. [¶] … [¶] … So I ran too ….”
Finally, Mathews asked defendant if he told Azevedo and Yingling that he wanted
to “put Hanford on the map” in order to “build[] [his] gang up ….” Defendant replied:
“I built nothing up just wanted to be on the news. [¶] … [¶] … To let
everybody know that Hanford that small there’s people out there too.
[¶] … [¶] … I just wanted to be on the news. The news lady came out .…
[¶] … [¶] … and says, asked me if I was a student or something. [¶] … [¶]
… I told her no and then the dude record it (inaudible) oh we putting
Hanford on the map. That’s it. They came out there and recorded us so I
6.
just said oh Hanford on the map. [¶] … [¶] … It don’t mean nothing, I just
say it.”
Defendant denied being a Crip, but conceded knowing members of the Eight Tray
Gangsters (ETG) and Hanford Gangster Crips (HGC) and “kick[ing] it with em.”
e. Rayshun Dean.
At trial, Dean testified that he “lived on the south” and frequented Quick Shop
because “that was the only store right there that I can go to.” He would go with
“everybody,” including defendant and Dion Loftis-Williams. On June 18, 2012, Dean
was in front of the store when “a lady was hurt,” but denied seeing what transpired. He
explained that his subsequent statements to the police were based on hearsay.
Dean recounted the time he loaned his bicycle to defendant:
“I was chilling outside by the doll house and we just, we was talking about
something, I don’t remember, and he was like, ‘Can I use your bike?’ I
gave him my bike, you know, and he left.”
Defendant did not tell Dean “what he was using [the] bike for” or “if he was going to get
any money.” After defendant returned, he gave Dean some money.
The prosecutor inquired about the meaning of the phrase “put Hanford on the
map.” Dean responded:
“Everybody was saying it, but, you know, it just didn’t come from one
person, everybody was saying it …. [¶] … [¶] … I said it, ma’am.
[¶] … [¶] … It’s not a good thing. It could be taken as a good way and it
could be taken as a bad way. I really have no meaning to ‘putting Hanford
on the map[,’] but if my meaning was ‘putting Hanford on the map’ it
would be doing something good because I’ve been in trouble before, you
know, and I just want to do something positive.”
When questioned whether he was affiliated with Crips, Dean answered:
“Well, now that [the police] have me is, I am, ma’am. [¶] … [¶] … I got
put on the gang contract, you know, so I have to be, you know, because
they put me on it, you know. It’s not like I was, I was -- it was like I was
forced to be on it because they put me on it.”
Dean added that he regularly came across Crips because “[he] stay[ed] on the south.” He
denied having a nickname.
7.
On cross-examination, Dean acknowledged that he had been arrested for felony
assault, pled guilty, and received five years’ probation. At the time he was interviewed
by the police, his case was still pending.
In a June 27, 2012, interview with Mathews, Dean related that “he saw [defendant]
strike [Laughlin] several times in the face.” He also “saw … Porter … strike [Laughlin]
several times.” On another occasion, defendant, Dean, and Keith Moore were leaving the
“doll house,” a residence on Hanford Armona Road, when defendant asked to borrow
Dean’s bicycle to “‘do a lick’ or rob somebody.” Defendant rode the bicycle northbound
on Phillips Street and stole cash from a street vendor. He met Dean and Moore at “the
hill” near Redington Street and Davis Street and gave each of them $20. Dean
acknowledged that “some people call him G Smooth.”
f. Dion Loftis-Williams.
At trial, Loftis-Williams testified that he, defendant, Porter, Dean, and Chris
Cordero, inter alios, were at Quick Shop on the evening of June 18, 2012.
Approximately one foot away from Loftis-Williams, defendant pointed a “little toy gun”
at Laughlin, took her purse, walked off, and then “threw it on the floor because there was
nothing in there.” In front of the store, Laughlin “went into [defendant] and tried to get
the bag back and swung on him.” Defendant struck the woman in the head about four
times. Loftis-Williams did not know whether defendant associated with any Crips and
denied being a member of and associating with members of HGC. He later acquiesced
that Montreal Kelly, a relative, was a member of that subset.
On cross-examination, Loftis-Williams acknowledged that he had been arrested
for felony assault in connection with the instant case, pled guilty, and received felony
probation with a strike.
In a June 28, 2012, interview with Officer James Edlund, Loftis-Williams
admitted “associat[ing] with … Crips because of family members,” namely Kelly and
Shaquiel “Little Shack” Helm. He also indicated that defendant was a member of ETG.
8.
g. Officer Justin Vallin.
Vallin, a gang expert who has “investigated numerous crimes involving Crip gang
members” and “contact[ed] Crip gang members who informed [him] of their specific
[modus operandi] on the street,” testified that 250 to 300 Crips reside in Kings County.
Fifty to 75 of them live in Hanford. The various subsets, including ETG, HGC, Triple
Tray Gangsters (TTG), and Lemoore Gangster Crips (LGC), “currently all get along with
each other.” Crips identify with the number three8 and the color blue, although some are
less likely to “‘fly[] their colors’” nowadays:
“Gang members …, [from] what we’ve seen over the last five years[,] …
won’t be … ‘flying their colors.’ It depends on which specific gang they’re
with. [¶] If they claim the color blue, … they won’t be flying those colors
as predominantly [as] in the years past, and the reason we’ve found is they
don’t want to … attract law enforcement’s attention.
“They don’t want to be labeled as a gang member because when we
contact these individuals we fill out what’s called a Field Interview Card
and we document our contact with them, such as their name, date of birth,
time and place where we stopped them, the type of clothing they’re
wearing, what they tell us, any type of tattoos; their self-admissions, who
they’re with, and what they’ve realized is this will come back and get them
if they ever get arrested for a gang-related crime.
“So they will wear a small amount of their specific color that they
claim on their person to identify themselves to other gang members in their
gang, but to also tell other rival gang members who they are and what they
represent.”
Crips primarily engage in homicides, robberies, burglaries, assaults, vandalism, and drug
sales.9 They are “motivated by money and power” and seek to instill “fear and
intimidation within the regular citizens on the street.” Crips “travel in packs” “because
8 Vallin explained that the number three corresponds with the third letter of the
alphabet, C, which, in turn, stands for “Crip.”
9 Vallin confirmed that validated Crips have been convicted of offenses such as
robbery, assault with a deadly weapon, kidnapping, and possession of a concealed
firearm.
9.
it’s threat by numbers.” They are “very territorial” and “like to claim … certain
neighborhoods in certain cities.” For instance, the area surrounding Phillips Street and
Scott Street in Hanford, where Quick Shop is located, is “predominantly a Crip
neighborhood.” Vallin noted that this area has been visibly “tagged” with the word
“moovin,” a Crip term signifying that “Crips are moving … into the neighborhood.”
Vallin reviewed Yingling’s footage and highlighted the interlopers’ “desire for …
power … [and] territory”:
“[In] the specific case of where the news camera people were down there at
Scott and Phillips Street, not only were [the interlopers] trying to get
themselves on the news to show who they are, what they represent, you
heard people saying Crip, Crip gang slurs[10] while the camera was rolling,
you saw them dancing.
“Again, traveling in a pack like a pack of wolves, numerous people
standing around, congregating in the middle of the street, cars having to
drive by them, they’re showing their power that they own that area, that
they’re not afraid, and they’re not going to get out of the way for a vehicle.
The vehicle has to get out of the way of them. [¶] … [¶]
“… I see two of the individuals in [a] particular shot right there
where there’s four of them, two of them are wearing blue clothing … which
is commonly worn by Crip gang members. [¶] … [¶]
“… Cars that are having to drive around, having to drive around
them, drive slowly through the area…. [T]he large crowd of about [eight]
… that are several feet into the street, cars are having to drive around them.
They’re being loud, belligerent, asserting their territory and claiming their
territory.”
The interlopers included (1) defendant, who wore a white shirt, tan shorts, and a cap with
a blue back strap; (2) Porter, who wore a blue shirt; (3) Cordero, who wore a white shirt
and black shorts; and (4) Helm, who wore a black shirt.
Vallin listed the various criteria used for identifying gang members, such as self-
admission, having a moniker, having gang-related tattoos, wearing gang colors,
10 Vallin testified that he heard someone yell “moovin.”
10.
associating with other gang members, and frequenting gang neighborhoods. He attested
that Helm was a registered Crip. Past police contacts showed that Helm wore blue
apparel, associated with known Crips, and performed the “Crip walk.”11 Moreover, his
lack of blue attire in Yingling’s footage was consistent with the gang’s recent shift away
from “flying [its] colors” excessively.
Vallin opined that both Dean and Loftis-Williams were Crips. Dean had the
moniker “G Smooth” and “served some type of purpose [during Laughlin’s robbery and
assault], either being a look-out, being part of the robbery, taking the wallet, [or] being
part of hitting [her].” Loftis-Williams admitted associating with Crips. Vallin also
commented on Dean’s and Loftis-Williams’ inconsistent remarks and poor memory at
trial:
“Gang members don’t want to be classified as snitches…. [S]nitches will
get harmed on the street. Not harmed by their own gang but harmed by any
type of gang, even rival gang members. Once they are labeled a snitch
they’re marked for life.
“In this particular case and in other cases gang members who are
forced to come into court, have to per a subpoena, they don’t want to come
in on their own accord to testify whatsoever. Some of them will lie. That
way their names can’t be put on any type of documents what they call …
‘put on paper’ because that type of paper makes its way through the jail
system or the correctional institute. That way everybody in the jail system
as well as on the street knows that they’re a snitch and that they’re no good.
[¶] … [¶]
“… They can get harmed. [¶] … [¶] … Everything from getting
murdered to felonious assaults, stabbed, shot, their house is fire-bombed.
Several different types of violent crimes can happen to them. [¶] … [¶]
“… A lot of times the easy way out for them is to say they don’t
recall or they don’t remember. [¶] … [¶] … Specifically in Mr. Dean’s
11 Vallin testified that the “Crip walk” is “a specific dance, and the way that a Crip
gang member moves [his] feet and moves around in a specific area it spells out the word
Crip on the ground.”
11.
case, he had … a lot of memory lapse, as well as in Mr. Loftis[-Williams’s]
testimony in some areas he was forgetful as well, that he did not recall.”
Vallin opined that defendant was a Crip. In past contacts with the police, he
exhibited an ETG-related tattoo. Others suspects in the instant case divulged to the
police that defendant had the moniker “Moovin.” Furthermore, when he was booked into
jail following his arrest for Laughlin’s robbery and assault and Cruz’s theft, he requested
to be classified as an Eight Tray Gangster Crip even though he could have chosen general
population pods without any affiliations.
Regarding Laughlin’s robbery and assault, Vallin concluded that Crips perpetrated
as well as benefited from these crimes:
“In this particular case, … Miss Laughlin walked into a known Crip
neighborhood. She went into a store that’s mostly frequented by Crip gang
members. [¶] She was followed by several people … [like] a pack of
wolves following [their] prey. Her purse was stolen from her, a gun
pointed at her, either a fake or a real gun. Her purse was taken.
“She got very upset. She confronted the person that took this purse.
That was a huge disrespect just her confronting that individual, and
disrespect in the gang culture is tremendous. [¶] He would have been
viewed upon as being weak, being frail if he didn’t act upon her and … ‘put
her in her place.’ He began to beat her. And then they all shared the
rewards out of that. [¶] A couple people ended up beating her…. Even
though she said she didn’t have any type of money, they didn’t know that at
that specific time, but they were all going to benefit from that.”
Regarding Cruz’s theft, Vallin concluded that Crips perpetrated as well as
benefited from this crime:
“Four individuals are singling out one innocent bystander. That person is
going to be very intimidated and will probably submit to anything that
those individuals want them to do and in this case take his money.
[¶] … [¶] … [The theft] not only benefits the street gang, but it is in
association with the street gang by the amount of people that were involved
with it.
“It benefits the specific gang because the specific gang members
benefited from the money that they stole from him. [¶] They used that
money for anything that they want to; be it narcotics or food or whatever
they wanted at that specific time. [¶] … [¶]
12.
“… [Defendant] was sharing the proceeds with … Dean…. Dean …
had let him borrow his bicycle to go commit this robbery. So he was an
active participant to allow him the mode to get from point A to point B to
do the robbery, and because of that he shared some of those proceeds with
… Dean.”
II. Defense case-in-chief.
Genise Garcia testified that she and defendant, her son, lived on Redington Street
near Quick Shop. She was “blown away” by his arrest because “[he] doesn’t get in
trouble.” Garcia was also Porter’s mother. She maintained that neither defendant nor
Porter was a gang member. Garcia did not observe any signs of gang affiliation.
DISCUSSION
I. Standard of review.
To resolve the question of whether the evidence was sufficient to support a
criminal conviction or sentence enhancement, we review the entire record in the light
most favorable to the prosecution to determine whether it contains substantial evidence—
i.e., evidence that is reasonable, credible, and of solid value—from which any rational
trier of fact could find that the elements of the crime or enhancement were established
beyond a reasonable doubt. (See People v. Gonzalez (2012) 54 Cal.4th 643, 653; People
v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).) “We presume every fact in support of
the judgment the trier of fact could have reasonably deduced from the evidence.”
(Albillar, supra, at p. 60.)
“Before the judgment of the trial court can be set aside for insufficiency of the
evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis
what[so]ever is there sufficient substantial evidence to support it.” (People v. Redmond
(1969) 71 Cal.2d 745, 755.) “If the circumstances reasonably justify the trier of fact’s
findings, reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.” (Albillar, supra, 51 Cal.4th
at p. 60.)
13.
“Although we must ensure the evidence is reasonable, credible, and of solid value,
… it is the exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts on which that determination depends.”
(People v. Jones (1990) 51 Cal.3d 294, 314.) “Thus, if the verdict is supported by
substantial evidence, we must accord due deference to the trier of fact and not substitute
our evaluation of a witness’s credibility for that of the fact finder.” (Ibid.)
II. Analysis.
a. As to count 4, substantial evidence established that at least two gang
members contributed to felonious criminal conduct.
“Any person who actively participates in any criminal street gang with knowledge
that its members engage in or have engaged in a pattern of criminal gang activity, and
who willfully promotes, furthers, or assists in any felonious criminal conduct by members
of that gang, shall be punished ….” (§ 186.22, subd. (a); accord, Albillar, supra, 51
Cal.4th at p. 54.) “The elements of the gang participation offense in section 186.22[,
subdivision ](a) are: First, active participation in a criminal street gang, in the sense of
participation that is more than nominal or passive; second, knowledge that the gang’s
members engage in or have engaged in a pattern of criminal gang activity; and third, the
willful promotion, furtherance, or assistance in any felonious criminal conduct by
members of that gang.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).)
“[T]o satisfy the third element, a defendant must willfully advance, encourage,
contribute to, or help members of his gang commit felonious criminal conduct. The plain
meaning of section 186.22[, subdivision ](a) requires that felonious criminal conduct be
committed by at least two gang members, one of whom can include the defendant if he is
a gang member.” (Rodriguez, supra, 55 Cal.4th at p. 1132; accord, People v. Johnson
(2014) 229 Cal.App.4th 910, 920 (Johnson).) One may promote, further, or assist in the
felonious conduct by at least two gang members by either (1) directly perpetrating the
felony with gang members or (2) aiding and abetting gang members in the commission of
the felony. (Johnson, supra, at pp. 920-921, citing Rodriguez, supra, at pp. 1135-1136;
14.
see Rodriguez, supra, at p. 1139 [“[S]ection 186.22[, subdivision ](a) reflects the
Legislature’s carefully structured endeavor to punish active participants for commission
of criminal acts done collectively with gang members.”].)
On appeal, defendant does not challenge his convictions on counts 1 through 3.
He also concedes that Porter, his brother, participated in Laughlin’s robbery and assault.
Defendant only contends that he did not act in concert with gang members. However, we
find substantial evidence showing that both defendant and Porter were Crips. (See
Rodriguez, supra, 55 Cal.4th at p. 1132; Johnson, supra, 229 Cal.App.4th at p. 920 [a
defendant may constitute one of the two gang members required by § 186.22, subd. (a), if
he himself is a gang member].) Vallin, the gang expert, identified various indicia of Crip
membership, including self-admission, having a moniker, having gang-related tattoos,
wearing the color blue, associating with other Crips, and frequenting Crip territory.12
The record—viewed in the light most favorable to the verdict—demonstrates that
defendant (1) specifically asked to be housed in a Crip jail pod following his arrest; (2)
had the moniker “Moovin,” which doubles as a Crip slogan; (3) had a gang tattoo related
to ETG, a Crip subset; and (4) admitted to Mathews that he “kick[ed] it” with ETG and
HGC members. Loftis-Williams separately confirmed that defendant was an ETG
member. In addition, Yingling’s footage, which was recorded in Crip territory, showed
defendant and Porter (1) “flying [Crips’] colors” by wearing a cap with a blue back strap
and a blue shirt, respectively; (2) associating with Helm, a validated Crip gang member;
and (3) associating with other individuals who wore blue, obstructed traffic, hassled and
intimidated Azevedo and Yingling, and/or made gang-related remarks such as “[W]e
crippen out here,” “We crips out here man,” and “[W]e go hard out here in the little town
12 “Gang evidence, including expert testimony, is relevant and admissible to prove
the elements of the substantive gang crime and gang enhancements” (People v. Williams
(2009) 170 Cal.App.4th 587, 609), including “a defendant’s membership in a gang”
(People v. Hill (2011) 191 Cal.App.4th 1104, 1120).
15.
of Hanford man we crips.” Based on this evidence, any rational trier of fact could have
found beyond a reasonable doubt that defendant and Porter were Crip gang members.
b. As to counts 1 through 3, substantial evidence supported the special
allegation.
Subdivisions (b) and (d) of section 186.22 apply to any person who is convicted of
an offense “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 ….” “Thus, the trial court can impose the enhancement[13]
only if the prosecution establishes both of the following elements beyond a reasonable
doubt: first, that the defendant committed a felony (a) for the benefit of, (b) at the
direction of, or (c) in association with a criminal street gang; and second, that in
connection with the felony, the defendant harbored the specific intent to (a) promote, (b)
further, or (c) assist in any criminal conduct by gang members.” (In re Daniel C. (2011)
195 Cal.App.4th 1350, 1358.)
As to counts 1 and 2, defendant and Porter indisputably robbed and assaulted
Laughlin in Crip territory. The fact that defendant, a Crip, committed two of the gang’s
principal criminal activities with Porter, another Crip, not only satisfied the first
element’s “in association with a criminal street gang” language (see Albillar, supra, 51
Cal.4th at p. 62; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332; People v.
Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales)), but also constituted “substantial
evidence … support[ing] the inference that the defendant acted with the specific intent to
promote, further or assist gang members in [any criminal conduct]” (People v. Villalobos
(2006) 145 Cal.App.4th 310, 322; accord, Albillar, supra, 51 Cal.4th at p. 68; People v.
Miranda (2011) 192 Cal.App.4th 398, 411-412; Morales, supra, at p. 1198; see People v.
13 We recognize that subdivision (d) of section 186.22—the basis for defendant’s
sentence on count 2—is an alternate penalty provision rather than a sentence
enhancement. (See Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898-900.) For
our analysis, however, we treat subdivisions (b) and (d) identically.
16.
Manibusan (2013) 58 Cal.4th 40, 87 [“‘[E]vidence of a defendant’s state of mind is
almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct
evidence ….’”]; People v. Margarejo (2008) 162 Cal.App.4th 102, 110 [“We cannot look
into people’s minds directly to see their purposes. We can discover mental state only
from how people act and what they say.”]).
As to count 3, the record shows that defendant told Dean about “‘do[ing] a lick’ or
rob[bing] somebody,” borrowed Dean’s bicycle, rode northbound on Phillips Street, and
stole cash from Cruz on Third Street with three unidentified accomplices. Thereafter, he
met with Dean at a “hill” near Redington Street and Davis Street—a short distance from
Quick Shop— and gave him $20. In an interview with Mathews, Dean admitted this
account, being called “G Smooth,” and seeing defendant and Porter assault Laughlin. At
trial, though, Dean denied witnessing Laughlin’s assault, knowing about defendant’s plan
to steal from Cruz, having any nickname, or being a Crip. Vallin attributed Dean’s
reticence to a fear of being classified as a snitch and “‘put on paper.’”14 In our view, a
rational fact finder could have concluded that Dean was a Crip because he (1) associated
with defendant; (2) frequented Crip territory; (3) had the moniker “G Smooth”; and (4)
testified in such a manner as to avoid implicating the gang. In turn, the fact that
defendant involved Dean in the perpetration of Cruz’s theft—i.e., by asking Dean to
supply the mode of transportation—established both the “in association with a criminal
street gang” element (see Albillar, supra, 51 Cal.4th at p. 62; People v. Martinez, supra,
158 Cal.App.4th at p. 1332; Morales, supra, 112 Cal.App.4th at p. 1198), and the specific
intent to promote, further, or assist in any criminal conduct by gang members (see
14 “Gang sociology and psychology are proper subjects of expert testimony [citation]
as is ‘the expectations of gang members … when confronted with a specific action’
[citations]. Expert testimony is admissible to establish the existence, composition,
culture, habits, and activities of street gangs; a defendant’s membership in a gang; gang
rivalries; the ‘motivation for a particular crime, generally retaliation or intimidation’; and
‘whether and how a crime was committed to benefit or promote a gang.’ [Citation.]”
(People v. Hill, supra, 191 Cal.App.4th at p. 1120.)
17.
Albillar, supra, 51 Cal.4th at p. 68; People v. Miranda, supra, 192 Cal.App.4th at
pp. 411-412; People v. Villalobos, supra, 145 Cal.App.4th at p. 322; Morales, supra, at
p. 1198.)
DISPOSITION
The judgment is affirmed.
_____________________
DETJEN, J.
WE CONCUR
_____________________
POOCHIGIAN, Acting P.J.
_____________________
PEÑA, J.
18.