People v. Resendez ( 2017 )

Filed 6/30/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B269608
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA110015)
v.
MICHAEL RESENDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Affirmed.
Rachel Varnell, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Shawn McGahey Webb and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
SUMMARY
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) 62 Cal.4th 59 (Prunty), the
prosecution failed to present sufficient evidence of predicate
offenses to establish the existence of a criminal street gang under
the California Street Terrorism Enforcement and Prevention Act
(the STEP Act, Pen. Code, § 186.20 et seq.).1 We disagree.
Prunty holds that ―when the prosecution seeks to prove the
street gang enhancement by showing a defendant committed a
felony to benefit a given gang, but establishes the commission of
the required predicate offenses with evidence of crimes
committed by members of the gang‘s alleged subsets, it must
prove a connection between the gang and the subsets.‖ (Prunty,
supra, 62 Cal.4th at pp. 67-68.) In Prunty, there was no evidence
of such a connection. Here, the evidence was ample. Accordingly,
we affirm the judgment.
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
1 All further statutory references are to the Penal Code.
2
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.‖2
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 (smaller groups or subsets within the
larger gang): the Locos, Rascals, Midgetcharros, Charros, and
Dukes.
Detective Acuna testified that southern Hispanic gang
members ―are very territorial and that‘s what they pride
themselves on is respect and territory. Being territorial is what
they . . . claim, what their neighborhood is, whatever they want
to claim their boundaries and respect. It‘s what they have.‖ He
2 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.
3
elaborated that East Side Bolen gang members ―challenge any
outsider that was there and because that‘s their territory. If they
are not familiar with you, you didn‘t grow up there, you are not
from that neighborhood, they are going to question you.‖
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
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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 East Side Bolen gang (who are
members of the Rascals and Midgetcharros subsets, respectively),
agreed to be removed from prison to testify as character
witnesses for defendant. Ryan Felton and Jeffrey Honeycutt,
officers with the Baldwin Park Police Department, testified as
rebuttal witnesses for the prosecution.
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, humble,
trustworthy, reliable, and honest. Defendant gives a person,
―whoever it was, total respect, either if he‘s a cop, a girl, guy, you
know.‖ He testified defendant ―would take [his] shirt off for me,‖
and that ―I would trust you--I would leave my girl around you,‖ to
which defendant replied, ―I trust you the same way, fool.‖
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.‖
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Mr. Patino testified that 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 tattoo 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 saw defendant with his
fellow gang member, Paul Pacheco, and Mr. Pacheco‘s brother,
―sitting there smoking, hanging out‖ at a picnic table with several
different drugs and open beer cans spread out on the table.
Officer Felton told them all to put their hands up; none complied;
he told them to have a seat; Mr. Pacheco did not comply.
Defendant told Mr. Pacheco, ―Come on, we got this. Let‘s fight
him. We can do this. Fuck this guy. He‘s not going to do
anything.‖ Defendant called Officer Felton a ―pussy‖; said, ―Take
off your badge, bitch. Let‘s do this right now‖; and said ―I‘ll fuck
you up.‖ Other officers arrived. Mr. Pacheco and defendant both
tried to fight and get away from the officers.
Officer Felton also testified that he had talked with one of
defendant‘s character witnesses, Mr. Patino, about his
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(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 claimed. 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 gang and great bodily injury allegations. In a
bifurcated trial, defendant admitted the prior prison term
allegations. The court sentenced defendant to an aggregate term
of 10 years in state prison.
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 judgment to determine whether
it contains 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. [Citation.] We presume every fact in support of the
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judgment the trier of fact could have reasonably deduced from
the evidence. [Citation.] 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.‖ (People v.
Albillar (2010) 51 Cal.4th 47, 59-60.)
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,
62 Cal.4th at p. 67, quoting § 186.22, subd. (f).) To prove a
criminal street gang exists, ―the prosecution must demonstrate
that the gang satisfies the separate elements of the STEP Act‘s
definition and that the defendant sought to benefit that
particular gang when committing the underlying felony.‖
(Prunty, at p. 67.)
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, 62 Cal.4th at p. 67.) As indicated
above, when the prosecutor shows the defendant committed a
felony to benefit a given gang, but establishes the necessary
8
predicate offenses were committed by members of the gang‘s
subsets, the prosecutor ―must prove a connection between the
gang and the subsets.‖ (Id. at pp. 67-68.)
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.) In one example, ―the facts may suggest
the existence of behavior reflecting such a degree of collaboration,
unity of purpose, and shared activity to support a fact finder‘s
reasonable conclusion that a single organization, association, or
group is present.‖ (Id. at p. 78.) The evidence ―need not be
direct, and it need not show frequent communication . . . among
the members who communicate. For instance, evidence that
two . . . subsets have professed or exhibited loyalty to one another
would be sufficient to show that the two subsets collaborate or
cooperate. . . . [¶] Even evidence of more informal associations,
such as proof that members of two gang subsets ‗hang out
together‘ and ‗back up each other,‘ can help demonstrate that the
subsets‘ members have exchanged strategic information or
otherwise taken part in the kinds of common activities that imply
the existence of a genuinely shared venture.‖ (Ibid.)
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
9
expert who had interviewed the defendant after his arrest.
(Prunty, supra, 62 Cal.4th at p. 68.) The expert stated that the
defendant admitted he was ―a ‗Northerner,‘ or a Norteño gang
member,‖ and a member of the Detroit Boulevard Norteño
― ‗set,‘ ‖ and testified that the defendant‘s clothing, previous
contacts with police, and possessions were consistent with
Norteño gang membership. (Ibid.) The expert described the
Norteños as a Hispanic gang active in Sacramento and
throughout California, with 1,500 local members. (Id. at p. 69.)
He testified that ―Sacramento-area Norteños are not associated
with any particular ‗turf‘ but are instead ‗all over Sacramento‘
with ‗a lot of subsets based on different neighborhoods.‘ ‖ (Ibid.)
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, 62 Cal.4th at
p. 69.) The prosecution produced no specific evidence showing
the subsets identified with a larger Norteño group; ―[n]or did [the
expert] testify that the Norteño subsets that committed the
predicate offenses shared a connection with each other, or with
any other Norteño-identified subset.‖ (Ibid.)
Prunty held the testimony just described was insufficient to
prove ―that the Sacramento-area Norteños were indeed the ones
who committed the . . . predicate offenses . . . .‖ (Prunty, supra,
62 Cal.4th at pp. 69, 82.) ―Although [the expert] characterized
these groups [(the subsets who committed the predicate offenses)]
as Norteños, he otherwise provided no evidence that could
connect these groups to one another, or to an overarching
Sacramento-area Norteño criminal street gang. [The expert] did
not describe any evidence tending to show collaboration,
association, direct contact, or any other sort of relationship
10
among any of the subsets he described. None of his testimony
indicated that any of the alleged subsets had shared information,
defended the same turf, had members commonly present in the
same vicinity, or otherwise behaved in a manner that permitted
the inference of an associational or organizational connection
among the subsets.‖ (Id. at p. 82.)
The court continued: ―Nor did [the expert]‘s testimony
demonstrate 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. . . . [T]he prosecution presented no evidence that the
members of the Varrio Gardenland and Varrio Centro Norteños
self-identified as part of the umbrella Norteño gang. . . . [[T]he
expert] simply described the subsets by name, characterized
them as Norteños, and testified as to the alleged predicate
offenses. He offered no additional information about their
behavior or practices that could reasonably lead the jury to
conclude they shared an identity with a larger group.‖ (Prunty,
supra, 62 Cal.4th at pp. 82-83, fn. omitted.)
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, 62 Cal.4th at
p. 84.)
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
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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 contrast with Prunty‘s 1,500 Norteños spread ― ‗all over
Sacramento‘ ‖ and with ― ‗a lot of subsets based on different
neighborhoods‘ ‖ (Prunty, supra, 62 Cal.4th at p. 69), in this case
there are only 500 documented members of East Side Bolen—
including those in prison and those who have moved out of the
city. And there were only 20 active members when defendant
was arrested. Unlike the Norteños, who are not associated with
any particular turf in the Sacramento area, the East Side Bolen
gang claims a well-defined territory within the city of Baldwin
Park – which is also home to three other, rival gangs. While the
record does not contain statistics for comparison, it is scarcely
open to doubt that the East Side Bolen gang‘s defined territory
within Baldwin Park is substantially smaller than the area that
is home to the ―Sacramento-area Norteños.‖ (Prunty, supra, 62
Cal.4th at p. 69.) And unlike the Norteños, Detective Acuna
testified in this case that southern Hispanic gangs in general,
and East Side Bolen in particular, are ―very territorial.‖
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
12
subsets with East Side Bolen. But there is, as we have seen,
much more.
The second and critical difference between Prunty and this
case is that the prosecution in Prunty provided no evidence of a
connection between the defendant‘s gang and the subsets that
committed the predicate offenses. (Prunty, supra, 62 Cal.4th at
pp. 69, 82.) In contrast, here there was testimony showing
contacts among the Locos (defendant‘s subset) and Rascals
(subset of the perpetrators of the predicate offenses), and showing
they all self-identified with the East Side Bolen gang.
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 that 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 and Mr. Placeres. Clearly,
defendant communicated and worked together with Mr. Patino
and Mr. Placeres to arrange for them to be transported from
prison to testify in his defense. Mr. Patino described defendant
as someone who would take off his shirt for Mr. Patino, and who
Mr. Patino would trust with his girlfriend. Defendant said
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during his examination of Mr. Patino that he wished he had been
with Mr. Patino in prison when he assaulted his cellmate, and
that Mr. Patino deserved a Purple Heart for his crime. In turn,
Mr. Patino testified he would have expected defendant to back
him up if he had been there during the attack on Mr. Patino‘s
cellmate.
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, 62 Cal.4th at p. 78
[evidence that two subsets ―have professed or exhibited loyalty to
one another would be sufficient to show that the two subsets
collaborate or cooperate‖]; ibid. [―proof that members of two gang
subsets ‗hang out together‘ and ‗back up each other,‘ can help
demonstrate that the subsets‘ members have exchanged strategic
information or otherwise taken part in the kinds of common
activities that imply the existence of a genuinely shared venture.
[Citations.] This type of evidence routinely appears in gang
enhancement cases.‖]; id. at pp. 78-79 [―In general, evidence that
shows subset members have communicated, worked together, or
share a relationship (however formal or informal) will permit the
14
jury to infer that the subsets should be treated as a single street
gang.‖].)
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 this case, there was direct evidence of
all of that.
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 assault in this case. He acted alone
when he committed the assault in the name of East Side Bolen,
but he and fellow East Side Bolen associates made themselves
highly visible to the police and civilians in Baldwin Park.
Defendant had extremely close ties with Mr. Patino, a member of
the Rascals subset, which subset committed the two predicate
felonies. He also commanded the respect and loyalty of
Mr. Placeres, a member of the Midgetcharros subset. Officer
Honeycutt testified that both Mr. Patino and Mr. Placeres claim
membership in East Side Bolen. Detective Acuna testified that
the perpetrators of the predicate crimes, Francisco Marin and
Juan Ledezma, both self-identify with East Side Bolen. Unlike
the facts in Prunty, there is substantial evidence from which the
jury could infer that defendant committed the assault for the
benefit of East Side Bolen and all its subsets.
15
DISPOSITION
The judgment is affirmed.
GRIMES, J.
WE CONCUR:
RUBIN, Acting P. J.
FLIER, J.
.
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