Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court for the County, Ct. No. BA298164, of Los Angeles. Stephen A. Marcus, Judge.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
SUMMARY
Eric Ek was convicted of murder and possession of a firearm by a felon. An allegation that he committed the murder for the benefit of a gang and several firearm allegations were found to be true. On appeal, Ek contends (1) the evidence was insufficient to support the gang enhancement, and (2) the trial court, after imposing punishment for a firearm enhancement under Penal Code section 12022.53, subdivision (d), should have stricken the additional firearm enhancements found true under section 12022.53, subdivisions (b) and (c), rather than imposing and staying them. We agree with the first contention, but reject the second contention under the authority of People v. Gonzalez (2008) 43 Cal.4th 1118.
FACTUAL AND PROCEDURAL BACKGROUND
After a jury found him guilty of murder (Pen. Code, § 187, subd. (a)), Eric Ek was sentenced to 50 years to life in state prison: 25 years to life, enhanced with a consecutive term of 25 years to life for the personal and intentional discharge of a firearm causing great bodily injury or death. (Pen. Code, § 12022.53, subd. (d).) Sentencing enhancements under section 12022.53, subdivision (b) (personal use of a firearm) and section 12022.53, subdivision (c) (personal and intentional discharge of a firearm) were stayed. Ek was also found guilty of unlawful firearm activity (possession of a firearm after a prior conviction (§ 12021, subd. (c)(1))), and was sentenced to the mid term of two years, stayed under section 654. The jury found the murder was committed for the benefit of a street gang with the specific intent to promote, further or assist in criminal conduct by gang members, and the court accordingly ordered that the minimum commitment period for the murder was 15 years. (§ 186.22, subd. (b)(5).)
All further statutory references are to the Penal Code.
Various fines and custody credits not pertinent to this appeal were also ordered.
The evidence established that on January 31, 2006, Ek shot and killed Mario “Tweety” Cobos near the Olive Motel on Sunset Boulevard. Ek had gone to the Olive Motel, where a friend had rented a room for him. Two men were observed standing outside the motel, and a third man, apparently Cobos, drove up in a burgundy vehicle, and walked up to the others. Two of the men started to argue.
Cobos suffered two gunshot wounds to the head. The first gunshot wound blinded Cobos and would have caused death within an hour. The other wound would have incapacitated Cobos immediately. The testimony indicated that, after shooting Cobos once, Ek retrieved his car and began to drive away; when he realized that Cobos was not yet dead, Ek parked his car, got out, walked back to the scene and shot Cobos again. He then drove away.
Two weeks after the murder, Officer Miguel Dominguez arrested Ek on an unrelated warrant after a traffic stop. While Dominguez was completing an interview card, Ek said to Dominguez: “Did you hear what happened to that fool Tweety; that’s some crazy shit, huh?” Dominguez’s partner asked Ek who “Tweety” was, and Ek said, “that’s the fool from La Monkeys [a derogatory term for the La Mirada gang] that got shot up on Sunset.”
At the police station, Ek asked Dominguez and his partner, “You sure you know nothing about that Tweety thing? Ever since the shooting, those mother fuckers have been circling my mom’s house. She’s scared they’re going to hurt her.” When Dominguez’s partner asked to whom Ek was referring, Ek replied, “The La Miradas.”
The prosecution’s evidence that the murder was committed for the benefit of a street gang consisted of testimony from a gang expert, Officer Carlos Figueroa. Figueroa testified that:
Officer Figueroa knew the victim, who was one of “the main individuals from the La Mirada Locos gang” and whose moniker was “Tweety.”
The boundaries of La Mirada’s territory were Fountain on the north side, Melrose on the south side, Vermont on the west side and Sunset on the east side.
One of La Mirada’s main rival gangs was the Crazies, which had about 60 active members at the time of Cobos’s murder.
The Silver Lake area in which Cobos was murdered is claimed by the Mayberry Street clique of the Crazies.
Ek was a member of the Normal Street clique of the Crazies. Normal Street “is the street that is within the La Mirada Locos’ gang territory.” The rivalry between La Mirada Locos and the Crazies is “with the Normal Street [clique] in particular due to the fact that they are, as I mentioned earlier, a gang within – they’ve established their gang within an area that belongs to another gang or so-called belongs to another gang, which is La Mirada Locos.”
The primary activities of the Crazies consisted of crimes such as vandalism, graffiti, beating up rival gang members or those believed to be gang members, robberies, narcotics sales, assaults with and without weapons, “up to in this case murder.”
The prosecution established the necessary “pattern of criminal gang activity”
Gang members are aware of the territories or areas claimed by their gang and by rival gangs.
A gang member in his own territory will view an individual who appears to be a member of another gang as a threat. The gang member’s duty is to find out who the individual is, and if he claims membership in a particular gang, to “teach them a lesson for being in your neighborhood.” This could range from “a beating up to murder and in between.”
The appropriate response for a Crazies gang member who sees a La Mirada gang member at the location of Cobos’s killing would be to find out what the La Mirada member is doing in a Crazies neighborhood, “[a]nd again, … it could range from a beating. In this case, it ended up being murder.”
Hypothetically, if a Crazies gang member shoots a La Mirada gang member once, starts to drive away, and then comes back and shoots him again, the crime was committed for the benefit of the gang. Figueroa explained the basis for this opinion as follows:
“The fact that you have a rival gang member in your neighborhood, what you claim as your neighborhood, an individual approaching a rival gang member, asking him where he’s from or whatever may have happened in this case, shooting an individual once, leaving the scene not only driving away, but as you’re driving – as the individual is driving away, he observes the individual still alive, returning to finish the job, so to speak, to make sure that he’s dead, that says a lot. That elevates the member’s status within the gang as well as with rival gangs. [¶] It all filters through. The community, rival gangs, they all find out about how the incident occurred. They hear about something like this, and the individual is feared. The community fears the individual. The rival gangs fear the individual. [¶] So it allows the gang and this particular member to do as they please in the neighborhood, to claim their territory. . . . [¶] Just a regular citizen on the street, they would fear to call the police because they’ve heard of what this gang and that individual was capable of. That in itself lets the gang do as they wish within the neighborhood.”
The crime would also benefit the individual gang member, elevating his status within the gang. “He’s feared by that particular gang and the gang members as well as individuals from his own gang. They know that he’s willing to kill someone and make sure the job is completed, mission is completed. So they’re not going to question him. They’re not going to cross him.”
The prosecutor asked Figueroa whether the comments Ek made to the police officers who brought him to the station, inquiring what they knew about Tweety’s killing (page 3 and footnote 3, ante) bolstered Figueroa’s opinion that the crime was gang related, and why. Figueroa replied in the affirmative, explaining:
“Again, information or the news of crimes such as murder filters through to the community as well as gang members. If the gang – rival gang or, in this hypothetical, the victim gang, which would be – what they would do is – their job in retribution would be to drive around the neighborhood which they believe committed the act of murder against their gang member and look for someone from that particular gang to gain retribution.”
DISCUSSION
Ek challenges the gang enhancement, and also claims the trial court should have stricken two of the firearm enhancements. We agree with the first contention but not with the second.
A. The gang enhancement.
The California Street Terrorism Enforcement and Prevention Act provides a sentence enhancement for “any person who is convicted of a felony 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 . . . .” (§ 186.22, subd. (b)(1).) Ek asserts the evidence was insufficient to support the gang enhancement in his case. We review claims of insufficient evidence by examining the record in the light most favorable to the judgment, to determine if substantial evidence exists for a reasonable trier of fact to find the gang allegation true beyond a reasonable doubt. (See People v. Killebrew (2002) 103 Cal.App.4th 644, 660.)
In this case, the issue may be reduced to a single question: may one reasonably infer, from evidence that a gang member killed a member of a rival gang in territory claimed by the killer’s gang, that the killer had “the specific intent to promote, further, or assist” in criminal conduct by gang members? Absent evidence, beyond mere gang membership, of circumstances connecting the murder to gang activity, we conclude the answer is “no.” While one can certainly infer from the gang expert’s testimony that the murder of Cobos would, in fact, benefit a criminal street gang, the statute requires evidence of a second and separate element, namely Ek’s specific intent to benefit the gang (or, in the words of the statute, his intent “to promote, further, or assist in” criminal conduct by gang members). Because Ek acted alone, and nothing except expert opinion evidence on gang habits suggests the murder was connected with gang activity, the specific intent necessary to support the gang enhancement has not been shown.
We begin with People v. Gardeley (1996) 14 Cal.4th 605. Gardeley teaches that the street terrorism statute “does not criminalize mere gang membership . . . ” (Id. at p. 623.) Instead, it imposes increased criminal penalties “only when the criminal conduct is felonious and committed not only ‘for the benefit of, at the direction of, or in association with’ a group that meets the specific statutory conditions of a ‘criminal street gang,’ but also with the ‘specific intent to promote, further, or assist in any criminal conduct by gang members.’” (Id. at pp. 623-624, quoting § 186.22, subd. (b)(1), emphasis added.) In short, the evidence must support an inference of specific intent to promote or assist criminal gang conduct, in addition to an inference the crime was committed for the benefit of (or at the direction of or in association with) a gang.
Several cases are instructive on the requirement to prove specific intent. Prime among these is In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.). In Frank S., the court observed that “a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation,” but that the expert opinion testimony allowed under this principle “has not included testimony that a specific individual possessed a specific intent.” (Id. at pp. 1196, 1197.) In Frank S., the minor contended the evidence was insufficient to support a gang enhancement in connection with his possession of a concealed knife. A gang expert testified the minor possessed the knife to protect himself; a gang member would use the knife for protection from rival gang members and to assault rival gangs; and his possession of the knife benefited his gang as it helped provide them protection should they be assaulted. The court agreed with the minor’s contention that the evidence was insufficient to show he had a specific intent to promote, further, or assist in any criminal conduct by gang members. (Id. at pp. 1195-1196.) The court first emphasized that “crimes may not be found to be gang-related based solely upon a perpetrator’s criminal history and gang affiliations.” (Id. at p. 1195.) The court observed that the gang expert “testified to ‘subjective knowledge and intent’ of the minor,” and such testimony was “‘much different from the expectations of gang members in general when confronted with a specific action.’” (Id. at pp. 1197-1198.) The court concluded “nothing besides weak inferences and hypotheticals show the minor had a gang-related purpose for the knife.” (Id. at p. 1199.) The court continued:
“[U]nlike in other cases, the prosecution presented no evidence other than the expert’s opinion regarding gangs in general and the expert’s improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang . . . .’ [Citation.] The prosecution did not present any 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. . . . To allow the expert to state the minor’s specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.” (Frank S., supra, 141 Cal.App.4th at p. 1199.)
And, as Frank S. also stated, “‘The crime itself must have some connection with the activities of a gang . . . .’” (Frank S., supra, 141 Cal.App.4th at p. 1199.)
Other cases also suggest that some evidence besides expert testimony on gang culture and habits is necessary to establish the specific intent to promote or further criminal conduct by gang members. Thus:
· In People v. Morales (2003) 112 Cal.App.4th 1176 (Morales), the court observed that, arguably, evidence that one gang member committed a crime in association with other gang members “alone would be insufficient, even when supported by expert opinion, to show that a crime was committed for the benefit of a gang.” (Id. at p. 1198.) Morales observed that “the typical close case is one in which one gang member, acting alone, commits a crime.” (Ibid.) In Morales, however, the crime was committed in association with fellow gang members, and the statute identifies two alternatives to the element requiring commission of the crime for the benefit of a street gang: the crime may also be committed “at the direction of, or in association with” a criminal street gang. (Ibid.) In Morales, the jury could reasonably infer the requisite association “from the very fact that defendant committed the charged crimes in association with fellow gang members.” (Ibid.) Further, there was also sufficient evidence “of the specific intent element (as opposed to the benefit/direction/association element)” of the enhancement. (Ibid.) Thus:
“[T]here was evidence that defendant intended to commit robberies, that he intended to commit them in association with Flores and Moreno, and that he knew that Flores and Moreno were member of his gang. Moreover, . . . there was sufficient evidence that defendant intended to aid and abet the robberies Flores and Moreno actually committed. It was fairly inferable that he intended to assist criminal conduct by his fellow gang members.” (Ibid.)
People v. Romero (2006) 140 Cal.App.4th 15 is to the same effect as Morales. In Romero, the court rejected defendant’s argument that, even if the crimes were committed to benefit the gang, defendant lacked the requisite specific intent. (Id. at p. 19.) The “specific intent element is satisfied if [defendant] had the specific intent to ‘promote, further, or assist’ [fellow gang member] Moreno in the shootings of [the victims].” (Id. at p. 20.) Evidence that defendant intended to commit a crime, intended to help Moreno commit a crime, and knew Moreno was a member of his gang “creates a reasonable inference that [defendant] possessed the specific intent to further Moreno’s criminal conduct.” (Ibid.)
See also People v. Leon (2008) 161 Cal.App.4th 149, 163 [jury could reasonably infer defendant Leon harbored the specific intent required by the statute from evidence that Leon intended to commit the crimes charged and intended to commit them in association with a person (Rodriguez) he knew to be a member of his gang; “[i]n addition, Martinez’s expert testimony that Leon and Rodriguez committed the crimes in a rival gang’s territory, at an apartment complex in which members of a rival gang were known to live, provided additional evidence supporting the gang enhancement findings”].
In People v. Gamez (1991) 235 Cal.App.3d 957 (disapproved on another ground in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10), the court rejected defendant’s contention there was no proof that a shooting was done with the intent to promote, further or assist criminal conduct by gang members. (Id. at p. 978.) In Gamez, defendant was a member of the Southside gang, and drove to a location in a rival gang’s territory (the Highland Street gang), where he participated in a drive-by shooting. (A Highland Street gang member (“Rambo”) had parked his car in front of the house where the drive-by shooting occurred, and where his girlfriend lived with her family. (Id. at p. 963.)) Expert testimony established that Hispanic gangs were extremely territorial; venturing onto rival gang territory was done at great risk; “Rambo” had recently been involved in the shooting of a Southside gang member; and in gang culture, such an incident could not go unavenged and would warrant a retaliatory strike. The court concluded this constituted sufficient evidence that defendant’s actions were done with the intent to aid and promote the Southside gang. (Id. at p. 978.)
In People v. Margarejo (2008) 162 Cal.App.4th 102, the defendant gang member was convicted of evading police officers on a long car chase, during which he continually made the Highland Park gang sign to pedestrians he passed and even to the police. A gang expert testified defendant’s gang-signing was to intimidate the community. The court concluded there was ample basis for a jury to conclude Margarejo “was serving the criminal purposes of the Highland Park gang by turning his flight into a public display of laughing, taunting defiance.” (Id. at pp. 109-110.)
The court said: “[W]e routinely draw inferences about intent from the predictable results of action. 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. Here, Margarejo acted like he wanted to help his gang. His actions did his own escape no good. . . . Logically, Margarejo must have had another purpose for staging this show. . . . [¶] . . . The jury was entitled to find he had turned this pursuit into a reckless and attention-getting parade, and the parade into a gang crime.” (People v. Margarejo, supra, 162 Cal.App.4th at p. 110.)
All of the cases just described have one thing in common: there is some evidence the crime itself had “‘some connection with the activities of a gang’” (Frank S., supra, 141 Cal.App.4th at p. 1199), permitting an inference of intent to promote criminal conduct by gang members. Here, the evidence showed that the killer (Ek) and the victim (Cobos) were members of rival gangs, Ek knew Cobos belonged to a rival gang, and the murder occurred in territory claimed by Ek’s gang. But nothing – except the fact of gang membership and the gang expert’s testimony about how gang members typically act – shows the murder had any connection with gang activity. There was no evidence of an ongoing gang war; no evidence the rivalry between the Crazies and La Mirada had escalated; no evidence Cobos was armed when he was killed; and no evidence that Cobos’s killing was retaliatory. Ek did not flash gang signs, or otherwise call attention to his status as a gang member, and the Crazies did not afterward make any claims with respect to the murder. Indeed, gang expert Figueroa testified, when given the facts of the crime as a hypothetical:
On cross-examination, Figueroa testified he had no information that any gang name was yelled out during the crime; no information about tagging or graffiti afterwards to show the crime was perpetrated by a gang member; and no statements by witnesses who saw or heard anything regarding gang membership. When asked, “[w]hat are the factors that are leading you to this opinion from what we know about this case,” Figueroa replied: “To answer your question specifically, that’s the only factor. That’s the only information that I have, is the fact that there are two rival gang members, one of which is in the other’s neighborhood.”
“Q. Now, is there a possibility that this hypothetical shooting could have been a personal thing?
“A. There’s a possibility, yes.
“Q. In your opinion, based upon your experience, based upon your expertise in this area, is this hypothetical shooting … in your opinion, personal or is it gang-related?
“A. I would say it’s both. Just based on the facts, it seems to me, in my opinion, that it was, in a sense, personal. But at the same time, the fact that it was personal could have a lot to do with the fact he’s a rival gang member.”
Figueroa continued: “A lot of times you’ll hear personal beefs … through conversations with gang members …. So-and-so … looked at so-and-so the wrong way or so-and-so … talked to so-and-so’s girlfriend. It’s simple stuff that eventually becomes a personal beef or a personal grudge with some else. [¶] The fact that it was between two gang members – two rival gang members that are high up there within their gang and the fact that in the hypothetical the individual not only shot the victim one time, but as he drove off observed the victim was still alive, stopped his car in … very – during a time when there’s a lot of traffic on that street, heavily populated street, returned and finished the job, shot him one more time to make sure he was dead, I would say, yes, that’s definitely personal as well as gang-related.”
In short, this case is the paradigm mentioned in Morales – the “typical close case . . . in which one gang member, acting alone, commits a crime.” (Morales, supra, 112 Cal.App.4th at p. 1198.) Because Ek acted alone, one cannot infer from the killing itself that he had the intent to promote criminal conduct by other gang members. Of course, he was a gang member and he necessarily intended to commit the crime. But it does not follow that, as the People contend, Ek’s “intent to promote his own shooting of the victim” suffices to establish the specific intent required by the statute. It is a truism to say that, because Ek was a gang member and committed a murder, he did so with the intent to promote his own criminal conduct. That would mean that whenever a gang member commits a crime against a rival gang member, by definition he has the specific intent to promote criminal conduct by gang members.
We are aware that the specific intent element necessary for a gang enhancement does not require evidence of intent to promote criminal conduct other than the charged crime – so that, for example, the intent to assist another gang member in perpetrating the charged crime will suffice to show the necessary specific intent. (E.g., Romero, supra, 140 Cal.App.4th at p. 20.) But here, there was no other gang member involved. The People point to People v. Hill (2006) 142 Cal.App.4th 770, where the court also held that the defendant’s own criminal threat – the crime for which he was tried – “qualified as the gang-related criminal activity.” (Id. at p. 774.) In other words, the defendant’s specific intent to promote criminal conduct by gang members was shown by the criminal threat he made. But in Hill, the defendant conceded that the evidence showed he committed the crime – made a criminal threat – for the benefit of the street gang. (Id. at pp. 772, 774.) He merely argued, unsuccessfully, that the prosecution had to show he intended to enable or further other gang crime. Moreover, in the interchanges leading up to the defendant’s threat to use his gun to “bop” the victim, the defendant used the name of his gang and told the victim she had “disrespected” him. (Id. at p. 772.) Thus there was evidence relating to the circumstances of the crime itself – using the gang name – to show the crime had “‘some connection with the activities of a gang’” (Frank S., supra, 141 Cal.App.4th at p. 1199), in addition to an expert’s opinion that the criminal threat benefited defendant’s gang because it showed the gang could not be disrespected without consequences. (Id. at pp. 772-773.)
In sum, unless the killing of a gang member by a member of a rival gang in the latter’s territory is sufficient, standing alone, to show the killer’s specific intent to promote or further criminal conduct by gang members, we cannot affirm the jury’s true finding on the gang enhancement allegation. To do so would effectively eliminate the requirement to prove the defendant’s specific intent. The statute does not allow us to go so far. In the cases finding specific intent to promote criminal conduct by gang members, there is some evidence relating to the circumstances of the crime itself, from which an inference of specific intent to promote criminal conduct by gang members reasonably can be drawn. In Margarejo, the defendant threw gang signs while evading the police. In Hill, the defendant conceded he made a criminal threat for the benefit of his gang, and used the name of his gang when he told the victim she had “disrespected” him. In Morales and Romero, the crimes were committed in association with others known to be gang members. In Gamez, the defendant went into rival gang territory to perpetrate a drive-by shooting at the home of the girlfriend of a rival gang member who had recently been involved in a shooting of someone in defendant’s gang. Here, by contrast, we know only that Ek killed a rival gang member in territory claimed by his (Ek’s) gang. While we can infer, from Figueroa’s testimony, that the murder would in fact benefit the Crazies gang, there is no evidence – other than the commission of the murder itself – from which to infer the further element of a specific intent to promote criminal conduct by gang members. Consequently, the true finding on the gang enhancement cannot stand.
B. The firearm enhancements.
The jury found that, in the commission of Cobos’s murder, Ek used a firearm in a manner described in each of three firearm enhancements set forth in section 12022.53. In People v. Gonzalez, supra, 43 Cal.4th 1118, the Supreme Court concluded section 12022.53 requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements that were found true for the same crime must be imposed and then stayed. Because the trial court proceeded as Gonzalez directs, Ek’s claim that the court should have stricken the two lesser firearm enhancements is without merit.
DISPOSITION
The judgment of conviction is reversed to the extent it finds true the gang allegation, and the cause is remanded with directions to modify the abstract of judgment accordingly. In all other respects, the judgment is affirmed.
I concur: FLIER, J.
Dissenting Opinion
RUBIN, J.
I agree with the majority opinion to the extent it affirms the firearm enhancement under Penal Code section 12022.53, subdivision (d) but disagree there was insufficient evidence to support the gang enhancement. Accordingly I dissent from that part of the majority opinion.
Initially, I observe there was no challenge to the sufficiency of the evidence that it was defendant who murdered Mario “Tweety” Cobos. The following circumstantial evidence supported the jury’s finding that defendant’s conduct supported the gang enhancement: (1) Mr. Cobos was in the La Miradas gang, a rival to defendant’s Crazies gang; (2) the shooting occurred in or near disputed gang territory; (3) there were no known personal disputes between the victim and defendant that would suggest personal animus; (4) defendant bragged to the police about the killing in a way that seemed to suggest it was gang motivated, referring to the victim’s gang by a well known derogatory name. Significantly, defendant stated to one of the police officers: “You sure you know nothing about the Tweety thing? Ever since the shooting, those mother fuckers have been circling my mom’s house. She’s scared they’re going to hurt her.” The officer confirmed that the “they” was La Miradas. A reasonable jury could infer from this that La Miradas considered the killing gang motivated and was bent on retaliation, a fact well known to defendant.
Unlike the “paradigm” suggested by the majority, this is not a case in which the only evidence of a gang enhancement is that the killer was a gang member, with nothing more. On the contrary, there was significant evidence from which a reasonable jury could conclude that in the context of what was really going on – rival gangs, disputed territory, no personal dispute between those involved – that this was, plain and simple, a gang killing that was intended to, and did, promote criminal conduct by gang members for the gang’s benefit.
(§ 186.22, subd. (f)) by showing the commission, by Crazies gang members, of two felony violations of Vehicle Code section 10851 (unlawful driving or taking of a vehicle without the owner’s consent).