People v. Estrada CA2/5 ( 2021 )

Filed 9/16/21 P. v. Estrada CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B305831
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA470271)
v.
UBALDO ESTRADA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Craig J. Mitchell, Judge. Stricken in part,
reversed and remanded in part, and affirmed in part.
Robert L. Hernandez, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, David E. Madeo and
Theresa A. Patterson, Deputy Attorneys General, for Plaintiff
and Respondent.
__________________________________
A jury convicted defendant and appellant Ulbaldo Estrada
of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)
[count 2]),1 and found true the allegation that the felon in
possession of a firearm crime was committed for the benefit of, at
the direction of, or in association with, a criminal street gang (§
186.22, subd. (b)(1)(C)).2 The jury found Estrada not guilty of
second degree robbery (§ 211 [count 1]), shooting at an occupied
vehicle (§ 246 [count 3]), and assault with a firearm (§ 245, subd.
(a)(2) [count 4]).
In a bifurcated proceeding, Estrada admitted that he had
suffered two prior strikes. (§§ 667, subds (b) – (j) & 1170.12,
subds. (a)–(d).) Although the truth of an on-bail enhancement (§
12022.1) was to be decided in the same proceeding, the
prosecution offered no evidence of Estrada’s custody status,
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2 Section 186.22, subdivision (b)(1)(C), does not apply to
charges of possession of a firearm by a felon, because the offense
is not a violent felony. At sentencing, the trial court amended the
information to correctly reflect that Estrada was charged with a
gang enhancement pursuant to section 186.22, subdivision
(b)(1)(A), which applies to non-violent felonies and carries a lesser
penalty.
2
Estrada did not admit that he had been on bail at the time he
committed the instant offense, and the court did not make any
findings with respect to the enhancement.
At the sentencing hearing, the trial court imposed a total
sentence of nine years in state prison. The court imposed the
middle term of two years in count 2, doubled to four years
pursuant to the three strikes law, plus three years for the gang
enhancement (§ 186.22, subd. (b)(1)(A)), plus another two years
for the on-bail enhancement (§ 12022.1).
On appeal, Estrada contends that there was insufficient
evidence to support the gang enhancement (§ 186.22, subd.
(b)(1)(A)), and insufficient evidence to support the on-bail
enhancement (§ 12022.1). Estrada argues that both
enhancements should be stricken.
The People contend that substantial evidence supports the
gang enhancement. The People concede that the on-bail
enhancement was imposed in error, but contend that the matter
should be remanded to allow the prosecution the opportunity to
re-try the enhancement.
We order the three-year gang enhancement (§ 186.22, subd.
(b)(1)(A)) stricken. We reverse the two-year on-bail enhancement
(§ 12022.1) and remand the matter for the District Attorney to
decide whether to proceed with a bench trial regarding Estrada’s
bail status at the time the instant offense was committed. In all
other respects, we affirm the trial court’s judgment.
3
FACTS
The Bicycle Theft3
On the evening of August 4, 2018, Jovanny Camano and
Jesus Vidriales were at Trinity Park in Los Angeles, when Hector
Lopez (Estrada’s co-defendant at trial) approached them and
asked Camano if he could use his cell phone. Lopez’s demeanor
made Camano nervous, so he told Lopez that he did not have cell
service. Lopez continued to insist, but Camano made excuses to
avoid giving Lopez his phone. Lopez then asked Camano where
he was from and if he had a “street name.” Camano believed that
Lopez was asking whether he was affiliated with a gang.
Camano responded that he was not “from” anywhere and did not
have a street name. Lopez insisted that Camano had a street
name, but Camano denied it. Lopez mentioned either his own
street name or his gang name, which started with an “F.”
Camano thought Lopez might be a gang member.
A man with a shaved head approached Lopez, Camano, and
Vidriales, but stopped on the opposite side of a chain-link fence.
The man said something to Lopez about a car being damaged.
Lopez looked at Camano’s bicycle, which Camano had next to
him, and approached it at a “very fast rate.” Camano grabbed his
bicycle and told Lopez not to take it. Lopez persisted. The man
with the shaved head pulled out a pocket knife, opened it, and
began walking toward them. He asked if there was a problem.
3 Although Estrada was acquitted of the robbery charge
relating to the bicycle, the jury found his co-defendant guilty of
misdemeanor theft.
4
Camano was scared and thought the man might stab him, so he
released the bicycle. Camano and Vidriales ran away. Lopez
rode away on Camano’s bicycle. The second man also rode away
on a bicycle.
Camano and Vidriales went to Vidriales’s house and called
911 to report the theft. Camano also texted his mother, Erika
Rosales. Rosales went to the area near Trinity Park after her son
told her about the bicycle theft. Rosales saw Lopez riding her
son’s bicycle. She told Lopez that the bicycle belonged to her son.
Around that time, police officers arrived, and Lopez let go of the
bicycle. Estrada was detained by police.
Rosales placed a phone call to her son to tell him that she
was at the scene where his bike was and that the police were
there; Camano and Vidriales came to the location. Camano and
Vidriales approached the officers and gave a statement about
what had happened. They also identified the bicycle, which was
on the sidewalk near Lopez.
Afterwards, police officers drove Camano and Vidriales a
short distance away for a field show-up. Officers lifted Estrada’s
shirt to show his tattoos. After observing the tattoos, Camano
identified Estrada as one of the men who took his bicycle.
Camano identified Lopez as the person who wanted to use his
phone. Vidriales identified Lopez as the man who had asked to
use Camano’s phone and then took the bicycle. Vidriales was
unable to identify the man who had the knife when the bicycle
was stolen.
At trial, Vidriales testified that the man who pulled out the
knife was shirtless and had a “23” tattoo on the front of his body.
Camano testified that the man who pulled out a knife was
wearing a shirt at the time. Camano had seen the same man in
5
the park earlier that day. He was shirtless and had a large “23”
tattooed on his back, and possibly a tattoo on his chest. Camano
recalled identifying the man in the field show-up based on a large
“23” tattoo on the man’s back. However, Officer Ian Chessum,
who was present during the field show-up, testified that the large
“23” tattoo shown to Camano was on Estrada’s chest.
The Alleged Shooting
At approximately 5:45 p.m. on August 4, 2018, Arcelia
Mora and her 14-year-old son were walking near Trinity Park.
Mora saw two men riding bicycles. One of the men, who was
wearing a black shirt, made a flirtatious comment. Mora ignored
him, and the man insulted her. Mora exchanged words with the
man, and kept walking. Mora heard approximately three
gunshots. She turned around and saw a white car speeding
away. Mora called 911 and reported the shooting. Mora did not
think anyone had been injured because the car sped away
quickly. She described the shooter as a Hispanic man with a
mustache, who was wearing a black shirt, a beanie, and shorts.
Three days later, Mora picked Estrada’s photograph out of
a six-pack line-up, and indicated that he looked similar to the
shooter. In a recorded police interview, Mora stated that she saw
the man with the mustache drop his bicycle and kick the white
car while it was stopped near a stop sign. Mora said that the
man then pulled out a handgun and fired three shots as the white
car drove away. The shooter grabbed his bicycle and “they” took
off. She did not remember if the man in the black shirt had a
gun, was near the white car, or followed the white car. Los
Angeles Police Detective Ryan Stogner, who interviewed Mora
6
soon after the incident, testified that Mora was reluctant to
cooperate with the police because she feared for her safety, and
did not want her son to be involved in the investigation.
Firearm Possession
Los Angeles Police Officer Jose Zavala and his partner,
Officer Montano, arrived at Trinity Park shortly after 5:45 p.m.,
in response to the shooting. Estrada was in the middle of the
street leaning against the driver’s side of a Toyota Camry. He
matched the description Mora had given of the shooting suspect.
The officers ordered Estrada to get down on the ground. Officer
Zavala heard Estrada tell the driver of the Camry that he was
going to go to jail for a long time because he had a firearm.
Officer Zavala found a black revolver in the front right pocket of
Estrada’s shorts. The revolver could hold up to hold five bullets.
There were three spent shell casings and two live rounds at the
time Officer Zavala recovered it.
Gang Evidence
On the day of his arrest, Estrada told Officer Zavala that
he was “Gordo” from the “Tiny Flips” clique of the West Side
Primera Flats gang (Primera Flats). Lopez identified himself as
“Foolie” from Primera Flats. Primera Flats, also known as 23rd
Street Primera Flats, is a criminal street gang with 115 to 130
members. According to Officer Zavala, the gang’s primary
activities included vandalism, graffiti, murders, shootings,
aggravated assault, robbery, grand theft auto, kidnapping, and
extortion. Common tattoos for members of Primera Flats
7
included “PF” and the number “23,” which symbolizes 23rd
Street. Estrada had several gang tattoos, including a “23” on his
stomach, “Flats” on his chest, a “P” on his right arm, “Tiny Flips”
on his right arm, “Flats” on the top of his hand, and a large “PF”
on the back of his head. Officer Zavala opined that Estrada and
Lopez were both members of Primera Flats.
Officer Zavala testified that the primary rival of Primera
Flats was the Ghetto Boys, a gang with nearby territory. There
was an ongoing violent rivalry between the two gangs. Members
of each gang entered the other gang’s territory to commit crimes.
As a result of the unrest, the two gangs had become very
protective of their respective territories. Trinity Park was a
Primera Flats stronghold.
Officer Zavala opined that a gang member shooting a
firearm at an occupied vehicle within his gang’s territory
benefitted the gang by creating fear and intimidation within the
community and protecting the gang’s “turf.” He explained that it
was important for gang members to instill fear in the community
so that the gang could commit crimes without being reported.
Officer Chessum, an expert on Primera Flats, described the
gang’s primary activities as murder, attempted murder, drive-by
shootings, assault with a firearm, street robberies, narcotics
sales, vandalism (including tagging), and possession of firearms
and weapons. Officer Chessum also testified that Trinity Park
was a stronghold of Primera Flats’ territory. Primera Flats
formerly shared Trinity Park with the Ghetto Boys, but now
there was a “blood feud” between the gangs over the park. There
had been multiple murders committed by members of both gangs.
Officer Chessum explained that Primera Flats was very
8
protective of Trinity Park and would do just about anything to
keep rivals out of the area.
Officer Chessum testified that one reason gang members
have large, visible tattoos is to intimidate the community. When
armed gang members commit crimes, the crimes often go
unreported. If the gang does not commit crimes against
community members and possess weapons, the gang’s territory
will likely be usurped by another gang. When given a
hypothetical scenario based on the facts of the charged offense of
shooting at a vehicle, Officer Chessum opined that the offense
was committed for the benefit of the gang, because the shooter
was defending the gang’s territory.
DISCUSSION
Section 186.22 Gang Enhancement
Estrada contends that there was insufficient evidence to
support the jury’s true finding on the gang enhancement under
section 186.22, subdivision (b)(1)(A), relating to his conviction for
felon in possession of a firearm. We conclude that there is
insufficient evidence to support the jury’s finding that Estrada
intended to promote, further, or assist in criminal conduct by
gang members, and we order the enhancement stricken.
Legal Principles
When reviewing for sufficiency of the evidence, we
determine whether substantial evidence supports the verdict.
Substantial evidence is defined as evidence that is reasonable,
9
credible, and of solid value. (People v. Elliot (2005) 37 Cal.4th
453, 466.) A reviewing court must accept logical inferences the
jury might have drawn from the circumstantial evidence. (People
v. Maury (2003) 30 Cal.4th 342, 396.) “‘A reasonable inference,
however, “may not be based on suspicion alone, or on
imagination, speculation, supposition, surmise, conjecture, or
guess work. [¶] . . . A finding of fact must be an inference drawn
from evidence rather than . . . a mere speculation as to
probabilities without evidence.”’ [Citation.]” (People v. Cluff
(2001) 87 Cal.App.4th 991, 1002.) This standard applies to
assessing the sufficiency of the evidence to support a true finding
on an enhancement allegation. (People v. Vargas (2020) 9 Cal.5th
793, 820.)
“Section 186.22 adds various sentencing enhancements for
gang-related felonies . . . . [It] requires proof of only two elements:
(1) that the defendant committed a felony for the benefit of, at the
direction of, or in association with any criminal street gang and
(2) that he did so with the intent to promote, further, or assist in
criminal conduct by gang members. (People v. Albillar (2010) 51
Cal.4th 47, 67 [(Albillar)].)” (People v. Mejia (2012) 211
Cal.App.4th 586, 613.)
“‘In order to prove the elements of the criminal street gang
enhancement, the prosecution may, as in this case, present
expert testimony on criminal street gangs.’ (People v. Hernandez
(2004) 33 Cal.4th 1040, 1047–1048.) ‘“Expert opinion that
particular criminal conduct benefited a gang” is not only
permissible but can be sufficient to support [a] gang
enhancement.’ (People v. Vang (2011) 52 Cal.4th 1038, 1048; see
Albillar, supra, 51 Cal.4th at p. 63.) While an expert may render
an opinion assuming the truth of facts set forth in a hypothetical
10
question, the ‘hypothetical question must be rooted in facts
shown by the evidence.’ (People v. Gardeley [(1996)] 14 Cal.4th
[605,] 618.) Indeed, an ‘expert’s opinion may not be based “on
assumptions of fact without evidentiary support [citation], or on
speculative or conjectural factors.”’ (People v. Richardson (2008)
43 Cal.4th 959, 1008; see People v. Gardeley, supra, 14 Cal.4th at
p. 618.)” (People v. Franklin (2016) 248 Cal.App.4th 938, 948–
949.) “As for the specific intent prong, ‘“[i]ntent is rarely
susceptible of direct proof and usually must be inferred from the
facts and circumstances surrounding the offense.”’ [Citation.]”
(Id. at p. 949.)
“Not every crime committed by a gang member is gang
related. (Albillar[, supra,] 51 Cal.4th [at p.] 60; [People v.] Rios
[(2013)] 222 Cal.App.4th [542,] 565 [(Rios)].) Nor can a crime be
found to be gang related simply because the perpetrator is a gang
member with a criminal history. (In re Frank S. [(2006)] 141
Cal.App.4th [1192,] 1199.) Although a lone actor may be subject
to a gang enhancement, merely belonging to a gang at the time of
the commission of the charged conduct does not constitute
substantial evidence to support an inference the sole actor
specifically intended to promote, further, or assist any criminal
conduct by gang members. (Rios, [supra,] at p. 566.)” (People v.
Perez (2017) 18 Cal.App.5th 598, 607 (Perez).) Instead, “[g]ang
membership is simply circumstantial evidence establishing that
the crime was gang related and a motive for why a defendant
may have harbored the ‘specific intent to promote, further, or
assist in any criminal conduct by gang members.’ (§ 186.22,
subd. (b)(1); [People v.] Sanchez [(2016) 63 Cal.4th 665,] 698–
699.)” (People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 540.)
11
Analysis
Presence of a Fellow Gang Member
The People argue that the commission of an offense with a
fellow gang member constitutes substantial evidence that
Estrada intended to promote, further, or assist any criminal
conduct by gang members, but here there is no evidence that
Estrada and Lopez committed any gun-related crime in concert.
Lopez did not use or possess the gun, and no evidence was
presented that he had the right to possession of the gun as a
fellow Primera Flats member. Nor was there evidence that Lopez
somehow aided Estrada in obtaining the gun or maintaining
possession of it. Lopez was not charged with any crime in the
incidents involving the gun, and there was no evidence that he
engaged in criminal activity in connection with those incidents.
Estrada’s specific intent cannot be inferred from Lopez’s presence
alone. (See In re Daniel C. (2011) 195 Cal.App.4th 1350, 1362
[intent prong not met where fellow gang members were not
charged with any crime related to the incident].)
Evidence Underlying Other Alleged Crimes
The People argue that the evidence relating to the crimes of
which Estrada was acquitted supports the gang enhancement
attached to his conviction for felon in possession of a firearm.
The People cite to U.S. v. Powell (1984) 469 U.S. 57, at page 67,
which held that review for sufficiency of the evidence as to one
count “should be independent of the jury’s determination that
evidence on another count was insufficient” as support for this
12
proposition. Even if we were to accept the proposition that
evidence relating to crimes of which a defendant was acquitted
could support a gang enhancement attached to a different
charged crime, in this case such evidence would be insufficient to
support the true finding that Estrada intended to promote,
further, or assist in criminal conduct by gang members by
illegally possessing a firearm.
The prosecution’s expert witnesses did not opine as to
whether, in a hypothetical based on facts that paralleled
Estrada’s possession of a firearm, the defendant would be acting
with the specific intent to promote, further, or assist in criminal
conduct by gang members. Rather, the People urge us to consider
instead the opinions offered by the expert witnesses that, in a
hypothetical that paralleled the alleged shooting (i.e., a
circumstance where the gang member fired the gun at a vehicle),
the defendant would be acting with the specific intent to promote,
further, or assist in criminal conduct by gang members. An
expert’s opinion is based on the factual scenario that he or she is
given. Although the expert may qualify that opinion—e.g., by
stating that he or she would be of the same opinion even if the
gun was merely possessed and not fired—the experts did not do
so here. Even if we assumed the jury could consider the evidence
offered in support of the shooting incident, including the
testimony of the experts, that does not change the substance of
the experts’ opinions. We cannot know what the experts would
have opined under those circumstances, and their opinions
regarding a different factual scenario cannot serve as evidence to
support the gang allegation on the possession of a firearm as a
felon charge.
13
With respect to the alleged shooting, nothing in the record
indicates that Estrada’s specific intent was to promote, further,
or assist in criminal conduct by gang members. Estrada did not
claim Primera Flats or make his gang membership known in any
manner in the alleged shooting incident. Mora testified that the
man who shot at the white car was wearing a black shirt (i.e. the
large tattoo of the number “23” on Estrada’s chest or back was
covered). She did not testify that she knew Estrada was a gang
member or that the shooting was otherwise gang-related. The
jury could not have reasonably inferred that Estrada intended to
promote, further, or assist in criminal conduct by gang members
simply because he was a gang member at the time that he fired
at the white car. “[M]erely belonging to a gang at the time of the
commission of the charged conduct does not constitute
substantial evidence to support an inference the sole actor
specifically intended to promote, further, or assist any criminal
conduct by gang members. (Rios, [supra, 222 Cal.App.4th] at p.
566.)” (Perez, supra, 18 Cal.App.5th at p. 607.)
With respect to the incident in which Estrada allegedly
robbed Camano using a knife, evidence was presented that he
was not wearing a shirt, and the large “23” tattoo indicating his
Primera Flats membership was visible, which would alert
someone familiar with the tattoo’s significance to the fact that he
was a Primera Flats gang member. There was also evidence that
Estrada assisted Lopez, a fellow gang member, in the crime.
However, Estrada did not use or display a gun in that incident, so
it cannot reasonably be inferred from this incident that he
possessed the gun later recovered in his possession with the
specific intent to promote, further, or assist in criminal conduct
14
by gang members, rather than possessing it for some other
reason.
Other Criminal Activities
Finally, the People claim that the gun could be used to
protect Primera Flats territory (in particular the contested area
near Trinity Park), to shoot rival gang members, to commit one of
an array of crimes that are among Primera Flats’s primary
activities, or to instill fear in the community. Indeed, these are
all possibilities, but the evidence does not tend to show that any
of these potential reasons to possess a firearm was more likely to
be the reason that Estrada actually possessed the gun rather
than some other, purely personal reason. “[T]he People’s expert
gave a possible motive or reason for [Estrada’s] being in
possession of the . . . gun. The prosecution, however, was
required to prove this fact beyond a reasonable doubt. While the
People’s expert’s opinion certainly was one possibility, it was not
the only possibility. . . . [A] mere possibility is not sufficient to
support a verdict.” (People v. Ramon (2009) 175 Cal.App.4th 843,
853 (Ramon).)
In sum, the prosecution’s evidence established that Estrada
was a Primera Flats member with gang tattoos, in heavily
contested Primera Flats territory, and in the company of a fellow
Primera Flats member, when he was arrested for gun possession
by a felon. Absent other evidence, being in the company of
another gang member within gang territory when one illegally
possesses a firearm is inadequate to prove the intent prong of a
gang allegation. (See Ramon, supra, 175 Cal.App.4th at p. 851.)
We order the gang enhancement stricken.
15
Section 12022.1 On-Bail Enhancement
Estrada next contends that the trial court erred in
imposing the on-bail enhancement under section 12022.1,
because he did not admit to being on bail when he committed the
instant offense, the People offered no evidence regarding his
status, and the trial court failed to make any findings with
respect to its imposition of the enhancement. The People
correctly concede this was an error. (§ 12022.1, subd. (c) [on bail
enhancement “shall be pleaded . . . and proved”].) Accordingly,
we reverse the two-year section 12022.1 enhancement and, as
compelled by a 2004 case decided by our Supreme Court, remand
the matter for the District Attorney to decide whether to proceed
with a bench trial. (See People v. Barragan (2004) 32 Cal.4th
236, 241, 244–245 [retrial of an enhancement allegation based
upon the defendant’s status is permissible and does not violate
state or federal due process or double jeopardy].)
16
DISPOSITION
The three-year gang enhancement imposed under section
186.22, subdivision (b)(1)(A), is stricken. The two-year prior on-
bail sentence enhancement (§ 12022.1) is reversed, and the
matter remanded for the District Attorney to decide whether to
proceed with a bench trial regarding Estrada’s bail status at the
time the instant crime was committed. In all other respects, the
judgment is affirmed.
MOOR, J.
We concur:
BAKER, Acting P.J.
KIM, J.
17