People v. Perez CA2/4 ( 2013 )

Filed 12/19/13 P. v. Perez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B246177
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA072030)
v.
MANUEL JESUS PEREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael K. Kellogg, Judge. Affirmed.
Christine Dubois, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Keith H. Borjon
and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
________________________________
INTRODUCTION
A jury found true an allegation that appellant Manuel Jesus Perez committed
two firearm offenses for the benefit of a criminal street gang, within the meaning
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of Penal Code section 186.22, subdivision (b)(1). Appellant contends there was
insufficient evidence to support the jury’s finding on the gang enhancement. We
affirm.
PROCEDURAL HISTORY
A jury convicted appellant of possession of a firearm by a felon (§ 29800,
subd. (a)(1)), and carrying a loaded handgun (§ 25850, subd. (a)). The jury further
found true that the offenses were committed for the benefit of a criminal street
gang. (§ 186.22, subd. (b)(1).) In a bifurcated proceeding, appellant admitted
having served a prior prison term. (§ 667.5, subd. (b).) The trial court sentenced
appellant to the low term of 16 months in prison on count 1, imposed but stayed
the same term as to count 2, struck the section 667.5 enhancement, and imposed
and later struck the punishment on the gang enhancement. Appellant timely
appealed.
FACTUAL BACKGROUND
On September 15, 2012, at about 2 p.m., Los Angeles Police Officer Daniel
Frazer and his partner, Officer James Fillmore, were patrolling in a marked police
vehicle when they noticed a car double-parked and blocking the intersection of
DeGarmo and Lauren streets in Los Angeles. After observing the driver and
passenger get out of the car and switch positions, the officers decided to conduct a
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All further statutory citations are to the Penal Code.
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traffic stop. As the officers approached the car on foot, the driver -- later identified
as appellant -- drove away. The officers returned to their patrol vehicle and
pursued. Shortly thereafter, appellant jumped out of the moving car, and the
driverless car continued until it collided with two parked cars.
The officers exited their vehicle and gave chase. Officer Fillmore noticed
appellant had a gun and yelled, “Gun.” Officer Frazer saw that appellant held a
gun in his right hand. Appellant attempted to jump over a wall, but failed. As
appellant dropped back down to the ground, he tossed the gun into the air. The
officers arrested appellant. Appellant was wearing a T-shirt and baggie shorts.
The officers recovered the gun, a Remington 1911 handgun, loaded with four live
rounds. The gun was not registered to appellant.
Officer Fillmore spoke with appellant at the police station. Appellant
admitted he was a Vineland Boys gang member and said he had been one “as long
as he could remember.” Appellant had numerous tattoos on his face and body
identifying him as a member of the Vineland Boys. These included tattoos on both
legs, a large “VBS” tattoo on his chest, the word “gang” on his shoulder, and
“Vineland Boys” on his back. On his lip was a tattoo reading “Vineland.”
Detective Gabriel Bucknell interviewed appellant while he was in custody.
Appellant told Detective Bucknell that the “cops got him with a gun.” When asked
why he had the gun, appellant said that he had it for protection. Appellant said he
got it from another Vineland Boys gang member, but would not say who.
Appellant told Detective Bucknell that he had an appointment to remove one
of his tattoos. Detective Bucknell opined that there could be two reasons for
removing a gang tattoo -- either the person is trying to get out of the gang or he is
trying to become a little less obvious. When asked about appellant’s purported
tattoo removal appointment in the context of appellant getting a gun from another
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gang member, Detective Bucknell opined that appellant was trying to become less
obvious. The detective also opined that the reason appellant was carrying a gun
and getting a gun from another gang member was because he was involved in
illegal activity.
Officer Jonathan Lozon testified as a gang expert. In January 2011, he was
assigned to monitor the Vineland Boys gang. His job was to “monitor and track
gangs and gang members, investigate gang-related crimes, . . . interview gang
members, both as victims, suspects, and witnesses as well as their families, their
friends, and their neighbors.” He stated that he has had contact with over 300 gang
members during his years as a police officer.
Officer Lozon testified that the Vineland Boys gang has a common hand
sign. Gang members also often wore similar clothing: sports memorabilia with
the letter “S,” which represented the gang’s territory in Sun Valley. The area
where the car was detained and appellant was arrested fell within Vineland Boys
territory.
Officer Lozon opined that the primary activity of Vineland Boys is violence.
Elaborating, he stated that the gang is known for “their murders, attempted
murders, their robberies, assault with deadly weapons as well as car thefts,
narcotics sales.” As evidence of predicate acts, Officer Lozon identified the arrests
and convictions of two Vineland Boys gang members: one for assault with a
deadly weapon in June 2011, and one for criminal threats in May 2011.
According to Officer Lozon, gangs operate through fear -- “fear from other
rival gang members, the community. If the community is not afraid of them, they
can’t operate their criminal enterprise and their turf.” Officer Lozon opined that
this fear is prevalent in Vineland Boys territory. The Vineland Boys gang is
particularly notorious because it has been responsible for murdering a few police
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officers. Officer Lozon also opined that a gang tattoo “allows you to express or
tell everyone who you are without saying anything.” “So all that fear and
intimidation that goes along with that gang’s name, now that gang member is
going to be able to carry that and feed off that and either victimize people or just
use it as fear and intimidation toward people.”
After being presented with a hypothetical that mirrored the facts in this case,
Officer Lozon opined that the gang member possessed the firearm for the benefit
of a criminal street gang. When asked what his opinion was based on, Officer
Lozon explained: “First, that -- criminal street gangs or criminal enterprises,
which is a street gang, the building blocks are weapons, commonly firearms.
Without those, they are powerless. That firearm can be used to assault, murder
rival gang members. It can be used to protect themselves, the reputation, the
gang’s reputation within their turf from rival gang members. It can be used in
commissions of other crimes, whether in their turf or out of the turf, such as
robberies, shootings, murders. [¶] And lastly, that gang member that is in [his]
own turf displaying that gang’s tattoos, running from the police, throwing a gun,
and subsequently getting arrested, in fear or -- introduces a lot of fear within the
community. [¶] If you see somebody that’s got tattoos representing such a violent
gang with a violent history, displaying tattoos, throwing a gun, the community is
going to be frightened. If they maintain that fear and intimidation in that
community, like we discussed earlier, it allows them to freely operate within their
turf with a commission of their crime.”
Officer Lozon opined that recent shooting attacks against Vineland Boys in
their own gang territory -- including a shooting in which appellant was a victim --
made the gang look weak. When asked whether the fact that the gang member in
the prior hypothetical had been the victim of multiple shootings in the past months
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would make a difference in Officer Lozon’s opinion as to whether or not the gun
was possessed for the benefit of a criminal street gang, Officer Lozon replied:
“Absolutely. If there is that much activity recently, one could expect to be
encountered by a rival gang member that is armed. And being a gang member, it is
your job, it is your responsibility to defend yourself, your own reputation, within
the gang, but most importantly that gang’s reputation on your own turf. You don’t
really have much choice.”
Officer Lozon opined that a person with five gang tattoos, armed with a
handgun, and in gang territory (even though he lived 50 miles away) would
“[a]bsolutely” be an active member of the gang, since that person would have no
other reason to be in that area. The fact that the gun was given to the gang member
by a fellow gang member would only add to Officer Lozon’s opinion, as he had
never heard of a situation where a gang member had given a gun to someone who
was not the member of the same gang.
When shown photographs of appellant on the date of his arrest, Officer
Lozon stated that he had never seen anyone attempting to drop out of a gang who
openly displayed tattoos symbolizing the gang in the gang’s territory.
DISCUSSION
Appellant concedes there was sufficient evidence to sustain his convictions
for possession of a firearm by a felon and carrying a loaded firearm. He contends,
however, that the evidence was insufficient to support the jury’s finding that he
committed those firearm offenses for the benefit of a criminal street gang.
According to appellant, the prosecution failed to prove that the primary activities
of the Vineland Boys gang consisted of the crimes listed in the applicable statute
(§ 186.22, subd. (e)(1)-(e)(25) & (e)(31)-(e)(33)), and that appellant had the
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specific intent to commit the offenses to benefit, further or promote the criminal
conduct of the gang.
“In determining whether the evidence is sufficient to support a conviction or
an enhancement, ‘the relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]
Under this standard, ‘an appellate court in a criminal case . . . does not ask itself
whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’ [Citation.] Rather, the reviewing court ‘must review the whole
record in the light most favorable to the judgment below to determine whether it
discloses substantial evidence -- that is, evidence which is reasonable, credible, and
of solid value -- such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.’ [Citation.] This standard applies to a claim of
insufficiency of the evidence to support a gang enhancement. [Citation.]” (People
v. Vy (2004) 122 Cal.App.4th 1209, 1224, italics omitted.) “The elements of the
gang enhancement may be proven by expert testimony.” (People v. Martinez
(2008) 158 Cal. App. 4th 1324, 1332.)
A. Evidence of the Gang’s “Primary Activity”
Officer Lozon testified that he is assigned to monitor the Vineland Boys
gang, and that his job includes investigating gang-related crimes and interviewing
gang members, their families, friends, and neighbors. He opined that the primary
activity of the Vineland Boys gang was “violence,” which included “murders,
attempted murders, . . . robberies, assault with deadly weapons[,] car thefts, [and]
narcotics sales.” Although violence is not an activity enumerated in section
186.22, subdivision (e), the other crimes are so listed. (See § 186.22, subd. (e)(1)
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[assault with a deadly weapon], (e)(2) [robbery], (e)(3) [murder], (e)(4) [narcotics
sale], (e)(21) [carjacking].) In addition, Officer Lozon testified about two specific
crimes committed by Vineland Boys gang members -- assault with a deadly
weapon and criminal threats -- that are listed in section 186.22, subdivision (e).
(See § 186.22, subd. (e)(1) [assault with a deadly weapon], (e)(24) [criminal
threats].) On this record, there was substantial evidence to support the jury’s
finding that the Vineland Boys gang’s primary activities consisted of crimes listed
in section 186.22, subdivision (e)(1) through (e)(25) and (e)(31) through (e)(33).
(See People v. Duran (2002) 97 Cal.App.4th 1448, 1464-1466 [although gang
expert testified that the gang’s primary activity was “‘putting fear into the
community,’” an activity not listed under section 186.22, subdivision (e), the
expert’s further testimony that the gang members committed robberies, assault
with deadly weapons, and narcotics sales was sufficient to support the jury’s
finding on the gang’s primary activities].)
Appellant’s reliance on In re Alexander L. (2007) 149 Cal.App.4th 605 is
misplaced because there, the expert did not “directly” testify that the primary
activities of the gang consisted of the crimes enumerated in section 186.22,
subdivision (e), and the expert did not establish an adequate foundation for his
testimony. (Id. at pp. 611-612.) In contrast, here, Officer Lozon directly testified
that the primary activities of the Vineland Boys gang were to commit violent
crimes, including murders, assaults with deadly weapons, car thefts and narcotics
sales. Officer Lozon also established an adequate foundation for his expert
testimony, as he testified that he had regularly monitored the Vineland Boys gang,
investigated gang-related crimes, and interviewed Vineland Boys gang members
and their associates since January 2011.
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B. Evidence that Crimes were Committed to Benefit, Further, and
Promote Criminal Conduct of the Gang
Officer Lozon testified that gangs operate through fear. It is fear among
rival gang members and instilling fear in the community that allows the gang to
operate its criminal enterprise and protect its territory. He further opined that guns
were the “building blocks.” “Without those, they are powerless. That firearm can
be used to assault, murder rival gang members. It can be used to protect
themselves, the reputation, the gang’s reputation within their turf from rival gang
members. It can be used in commissions of other crimes, whether in their turf or
out of the turf, such as robberies, shootings, murders.”
Officer Lozon also testified that being a victim of a shooting attack from
other gangs would weaken the gang, because it made the gang look weak. In
response to recent shootings, he said, “being a gang member, it is your job, it is
your responsibility to defend yourself, your own reputation, within the gang, but
most importantly that gang’s reputation on your own turf.”
Appellant, an admitted Vineland Boys gang member, was in the gang’s
territory, although his residence was 50 miles away. He had numerous Vineland
Boys gang-related tattoos, including three visible tattoos on his face and his legs.
Thus, appellant was openly displaying his gang affiliation.
Appellant also was in possession of a loaded handgun that had been given to
him by another Vineland Boys gang member, suggesting that the handgun was a
“gang gun.” (See People v. Margarejo (2008) 162 Cal.App.4th 102, 111 [jury
could rely on gang member’s transfer of a gun to a fellow gang member to
conclude the gun was a gang gun].) As Officer Lozon opined: “If you see
somebody that’s got tattoos representing such a violent gang with a violent history,
displaying tattoos, throwing a gun, the community is going to be frightened. If
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they maintain that fear and intimidation in that community, like we discussed
earlier, it allows them to freely operate within their turf with a commission of their
crime.” In addition, appellant had been the victim of a recent shooting in the
gang’s territory. Thus, it was appellant’s responsibility as a gang member to be
armed to defend himself, his reputation, and his gang’s reputation. On this record,
the jury could infer that appellant possessed a loaded handgun to benefit and
promote the Vineland Boys gang, because being armed allowed him to maintain
fear of the gang in the community and to defend the gang’s reputation in light of
the recent shootings. Maintaining fear and intimidation in the community would
allow the gang to continue its criminal activity.
Appellant’s reliance on In re Frank S. (2006) 141 Cal.App.4th 1192 is
misplaced. There, the gang expert “simply informed the judge of her belief of the
minor’s intent with possession of [a] knife.” (Id. at p. 1199.) The expert stated
that the possession of the knife benefitted the gang since “‘it helps provide them
protection should they be assaulted by rival gang members.’” (Ibid.) However,
there was no evidence that “the minor was in gang territory, had gang members
with him, or had any reason to expect to use the knife in a gang-related offense.”
(Ibid.) In addition, no evidence was presented about how the minor had acquired
the knife. In contrast, here, appellant was in Vineland Boys territory, he had
received the handgun from another gang member, and he had reason to expect to
use the loaded weapon to defend the gang’s reputation, as he had been the victim
of a recent shooting in the gang’s territory. In short, substantial evidence
supported the gang enhancement.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
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