Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 053247
RAYE, Acting P. J.Defendant Michael Allen Rose has a “White Power Skinhead” tattoo on the back of his head, Nordic runes on his neck, and a tattoo of boots with a crucified skinhead on his arm. He teamed with a “shot caller” for the United Society of Aryan Skinheads (USAS) in Northern California in assaulting a presumed enemy of the neo-Nazi skinhead faction. He was on the run for two years following the brutal assault before being charged with attempted murder (Pen. Code, §§ 21a, 664, subd. (a), 187, subd. (a)); assault with a deadly weapon (§ 245, subd. (a)(1)); first degree burglary (§ 459); two counts of exhibiting a deadly weapon for a street gang (§§ 186.22, subd. (d), 417, subd. (a)(1)); two counts of forcible false imprisonment (§§ 236, 237, subd. (a)); criminal street gang activity (§ 186.22, subd. (a)); and related enhancements, including gang enhancements. The jury returned a not guilty verdict as to attempted murder but guilty verdicts as to the remaining charges and found the gang enhancements to be true. The court found the prior conviction allegations to be true. Despite compelling circumstances to the contrary, defendant contends there is insufficient evidence that his convictions for assault, burglary, and false imprisonment were gang related. He further argues the trial court erred by denying his motion to exclude the statements he made to a police officer en route to California from Montana, and also asserts prejudicial juror misconduct as well as sentencing error. The Attorney General concedes defendant’s sentence on count 4 and count 6 must be stayed. His appeal on the remaining grounds is without merit. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
The perpetrators, victim, and witnesses were all participants in the skinhead movement to varying degrees. Thus, to acquaint the jury with the context in which the crimes occurred, the prosecution’s gang expert on neo-Nazi skinheads provided a basic tutorial on skinhead culture, sociology, and psychology in Northern California. Moreover, his testimony, coupled with the testimony of the skinhead witnesses, provided more than sufficient evidence that the crimes and enhancements were gang related; indeed, that they were committed for the benefit of the neo-Nazi skinhead criminal street gang USAS.
By all accounts, the skinheads can be divided into three groups: traditional, working class skinheads; skinheads against racial prejudice (SHARP); and white power, neo-Nazi skinheads. Traditional skinheads do not advocate violence or hatred and, according to the expert, do not constitute a criminal street gang because they lack structure, they lack organization, and they lack a pattern of criminal behavior. The only similarity they share with the other skinheads is their attire. All three groups traditionally wear Dr. Martens-brand boots; tight, rolled-up Levi’s jeans; braces or spaghetti-strap suspenders; and an alpha flight jacket or Levi’s jean jacket. They often sport either very short hair or shaved heads.
SHARP’s and neo-Nazi skinheads are enemies because the SHARP’s are opposed to racism. SHARP’s are skinheads in name, but their political agenda is the polar opposite of the neo-Nazis, and their membership includes not only Caucasians, but people of color. Neo-Nazi skinheads, by contrast, are fiercely committed to the 14 words of their mythical hero, David Lane: “We must secure the existence of our people for the future of white children.” They believe “that if they commit attacks on enemies, that they’ll be able to free the United States of its alien invaders, Mexican immigrants, that they’ll be able to send African Americans back to their ancestral lands. They’ll be able to serve the power structure of the United States government which is corrupted from Zionist, occupational governments in Israel.” Subsets, such as USAS, subscribe to a very pure political doctrine to unify all skinhead gang members or, in their vernacular, “to forge a cadre of Skinhead warriors.” They absolutely will use violence, including bloodshed, to achieve their purpose of exterminating their enemies.
Sean Gray, Ryan Rocha, and victim Maciej Krupa dabbled in the skinhead movement. Naïve about the political and practical consequences of wearing an anti-Nazi slogan, 16-year-old Krupa wore a T-shirt proclaiming “Nazi punk, fuck off” in the presence of USAS shot caller Chris Vochatzer. Vochatzer called him a SHARP, ordered him to take off the shirt, and then burned it. Krupa’s youthful indiscretion apparently precipitated the beating he received in this case seven years later.
As mentioned at the outset, all the percipient witnesses were skinheads at one time or another. Defendant challenged the credibility of the prosecution’s two key witnesses, Tim Johnston and Ryan Rocha, and the prosecutor challenged the credibility of Chris Vochatzer, incarcerated as a validated member of USAS and the admitted perpetrator of the beating of Krupa with a baseball bat. These witnesses gave the following accounts of what happened on the night of April 4, 2005.
Ryan Rocha met Vochatzer and defendant at a “Battle of the Bands” in Davis a few days before the beating. Vochatzer told Rocha that Krupa was a SHARP, and if he ever saw him again, he would beat him up. On April 4, Rocha passed on the threat to Krupa, who had been drinking and who was anxious to resolve this lingering dispute with Vochatzer. Rocha called Johnston, who was en route to Santa Rosa with another skinhead, Chad Quayle, and Quayle’s girlfriend. Eventually Krupa also talked to Johnston, and they decided Vochatzer, Johnston, and Quayle would come over to Krupa’s Davis apartment.
Tim Johnston had met Krupa at the Kentucky Fried Chicken restaurant Krupa managed in Davis. Johnston, then about 17 years old, was on probation for threatening his father with a gun. He was covered in neo-Nazi tattoos. He spent nearly a year in juvenile hall facing a life sentence for his participation in the beating before he decided to assist the prosecution. He gave a tearful confession with the promise that nothing he said would be used against him in his trial but without any guarantee of a deal. But he was released and his case was dismissed within a few days of offering to cooperate with the prosecution and of naming defendant as a perpetrator.
Johnston and Rocha gave similar accounts of what transpired in the apartment, with one major exception: Johnston testified that defendant struck Krupa with a pipe a couple of times, and Rocha testified that defendant had threatened him and Sean Gray with the pipe, but he did not see him hit Krupa. Both testified that Vochatzer, defendant, Johnston, and a fourth person, whom Johnston identified as Quayle, entered the apartment; Johnston testified that Vochatzer identified Krupa, called him a “mother fucking SHARP, ” and beat him with a baseball bat. Both had dropped out of the skinhead movement by the time of trial. Johnston added that the foursome had rendezvoused in Woodland, then drove to Davis in two vehicles, and defendant had instructed one of the female drivers to remain in the car.
Rocha did not disclose defendant’s name to the police during the initial investigation. Later, he identified him in a photo lineup in which defendant was the only suspect with tattoos on his neck but declared he was only 50 percent certain the other assailant was defendant. At trial, he identified defendant and assured the jury he was 100 percent positive defendant was one of the intruders on the night of the beating.
Krupa was unable to identify anyone. He recognized defendant but could not say from where. The two men who first approached him during the attack had tattoos on their necks, and one of them might have been defendant. He described the severity of his injuries, his lengthy hospitalization, and the residual loss of use of his hand.
Called by the defense, Vochatzer admitted he was guilty of assaulting Krupa and is serving a 28-year prison term. He is a proud member of USAS. He testified he had fired defendant as a tattoo artist in his tattoo shop three weeks before the beating, but they remained good friends. He insisted that defendant did not accompany him to Krupa’s apartment, did not take part in the beating, and was not a neo-Nazi skinhead. He refused to answer the prosecution’s questions about anyone else.
The gang expert further testified about Vochatzer and defendant’s gang affiliation. He noted that skinheads are savvy about the legal consequences of belonging to criminal street gangs. As a result, they do not consider themselves a gang, and they avoid the common trappings such as gang monikers. They tend to operate as “lone wol[ves], ” independent of an espoused gang, and they consider themselves “political activists.” Nevertheless, the primary activities of neo-Nazi skinheads are felony assault, assault with a deadly weapon, and attempted murder. He based his opinion on the present case and a 2004 case from Santa Rosa in which a USAS skinhead, Jason Signs, slashed another person with a knife.
The expert opined that Vochatzer was a validated USAS member, and as a result of the assault on Krupa, he pled guilty to assault with a deadly weapon and criminal street gang activity. He also opined that defendant was a neo-Nazi gang member, and assuming he was an active participant in the assault on Krupa, he would gain respect, even as an independent white power skinhead. USAS clearly benefited from the assault.
DISCUSSION
I
Despite the evidence from the prosecution’s skinhead or former skinhead witnesses, the defense’s skinhead shot caller, and the gang expert, defendant insists there is insufficient evidence that the crimes were committed for the benefit of a criminal street gang and that he was personally affiliated with, and participated in, a criminal street gang. Rather, in his view, USAS is primarily a political, not a criminal, organization; there was little, if any, evidence that it had engaged in criminal conduct immediately preceding the beating; and the predicate offense involving a USAS member from Santa Rosa was not sufficiently linked to the local USAS. The jury rejected defendant’s description of USAS members as political and social activists with only minimal criminal leanings. Having reviewed the whole record, we conclude there is ample evidence to support the jury’s findings.
First, it is true, according to the gang expert and the skinheads themselves, that not all skinheads are created equally. Traditional skinheads, with their roots in the working class in England, eschew violence. But neo-Nazi skinheads, in general, and USAS members, in particular, do not. Indeed, Johnston, Rocha, Vochatzer, and the gang expert all catalogued the central role of criminal conduct in the neo-Nazi movement. For example, USAS maintains a tight organizational structure, sponsors recruits, and expects them to “put in work” or, in other words, to commit crimes to enhance the prestige and authority of the group. Members earn red shoelaces by spilling blood on behalf of USAS, and any member who has the audacity to wear an unearned tattoo can look forward to having it cut out. There was ample testimony that USAS uses criminal conduct to instill fear in others and to maintain respect. Certainly, neo-Nazis may be clever enough to hide behind their political and social agenda, but that is not to say that groups such as USAS do not engage in criminal activities as a primary and ongoing means of implementing their agendas.
Nor do we accept defendant’s argument that there was insufficient evidence to connect him or his cohorts to USAS crimes committed in Santa Rosa within a time frame recent enough to prove that one of USAS’s primary activities was the commission of the statutory felonies including assault. Nothing in the STEP Act (§ 186.20 et seq.) “prohibits the trier of fact from considering the circumstances of the present or charged offense in deciding whether the group has as one of its primary activities the commission of one or more of the statutorily listed crimes.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) The expert explained that if the jury found the charges to be true, the beating inured to the benefit of USAS because Vochatzer, a USAS shot caller, initiated the beating and called out “USAS” as he was leaving. The message to any presumed SHARP was clear-that USAS would achieve its political goals with brutal violence when necessary.
Defendant, however, tries to distance himself from Vochatzer, and Vochatzer from any Santa Rosa connection. But defendant need not be a validated member of USAS if, as the jury found here, he affiliated with it and committed crimes on its behalf. Indeed, the gang expert testified that neo-Nazi skinheads used independent “lone wol[ves]” to commit their dirty work. Here, there was ample evidence defendant was a neo-Nazi skinhead, including the tattoo on his head referring to white power, the tattoos on his neck, and a tattoo on his arm of boots with a crucified skinhead. Since he worked for Vochatzer, a leader of USAS in Northern California, remained friends with him, and facilitated the beating by threatening Rocha and Gray with a pipe, he was sufficiently connected to a criminal street gang to support the jury’s gang-related enhancements.
Moreover, we point out the gang expert explained the loose affiliation of skinhead groups such as USAS over Northern California. As a pertinent example, Chad Quayle, who accompanied Johnston to Krupa’s apartment, lived in Santa Rosa, and Johnston was on his way to Santa Rosa when he received Rocha and Krupa’s call and decided to turn around and drive back to Davis. Thus, the jury could reasonably infer that USAS members supported one another throughout Northern California, and individual members’ crimes inured to the benefit of the umbrella organization. The expert also testified to the USAS organizational structure, complete with recruiting techniques, connections to an elaborate prison network, and a code of retribution for deviant behavior. Given that the expressed purpose of USAS was to unify neo-Nazis in a violent annihilation of nonwhites, this record is replete with ample evidence to support the jury’s imposition of gang enhancements.
II
Defendant contends the trial court improperly allowed admission of the incriminatory statements he made to a police officer en route from Montana to California in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda). He asserts he was subjected to custodial interrogation without a proper Miranda advisement and in the absence of a valid waiver of his right to have an attorney present during questioning. He insists the police officer ignored his invocation of his right to counsel. Because there is substantial evidence to support the trial court’s finding that there was no interrogation, we need not address the subsidiary questions as to whether there was a sufficient advisement or whether defendant made an unequivocal request for counsel. (People v. Cruz (2008) 44 Cal.4th 636, 667 (Cruz).)
The exclusion of evidence compelled by Miranda and its progeny applies to evidence elicited by custodial interrogation. (Rhode Island v. Innis (1980) 446 U.S. 291, 297 [64 L.Ed.2d 297].) It is undisputed that defendant was in custody during the flight returning him to Sacramento. The issue is whether he was subjected to interrogation because “[v]olunteered statements of any kind are not barred by the Fifth Amendment.” (Miranda, supra, 384 U.S. at p. 478.)
“‘“Clearly, not all conversation between an officer and a suspect constitutes interrogation. The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.”’ [Citations.]” (People v. Huggins (2006) 38 Cal.4th 175, 198.) There is no Miranda violation where “‘“[t]he record does not establish that defendant was subject to ‘compelling influences, psychological ploys, or direct questioning.’”’ [Citation.]” (Ibid.)
Detective Michael Munoz obtained an arrest warrant for defendant in April 2005 but was unable to find him until February of 2007. Defendant was apprehended in Butte, Montana. Munoz flew to Montana to escort defendant back to Sacramento. En route defendant expressed his desire to “bullshit[]” with the detective. Defendant, not the detective, initiated conversation about the charges against him. He was particularly offended by the “hate crime charge” and believed that his friend, Vochatzer, had received a bad deal. The detective did not probe. Nevertheless, defendant continued to express his opinion that Johnston was untrustworthy. When defendant suggested that he was not at Krupa’s apartment, the detective told him there was nothing he could say that would convince him he had not been at the apartment. Defendant expressed relief at being caught. He told the detective he had been on the run because of this case and he was tired of running. But he also told the detective it was against the prison code to talk to a police officer.
On two occasions, the detective attempted to deliver the Miranda advisements. Defendant stopped him both times. The first time, defendant told Munoz he did not want him to read the Miranda warnings because he and Munoz were “just bullshitting.” The second time, defendant interrupted with his own Miranda advisement. Parroting common Miranda warnings, he stated, “Anything you say can be used against you in a court of law. You have a right to an attorney. If you can’t afford one, the Court will appoint one for you. Do you understand those rights[?]” The detective testified that he did not ask defendant questions about the case, did not interrogate him, and he believed defendant understood his right to remain silent and his right to have a lawyer present during questioning. He did not believe that defendant ever invoked his right to counsel.
The prosecution used the conversation as evidence of consciousness of guilt by running and hiding for nearly two years. Defendant argues his comments must be excluded because he was subjected to custodial interrogation. He points to the detective’s aborted attempts to deliver the Miranda warnings as evidence that the detective believed he was interrogating defendant. The record does not support defendant’s version of the facts or the legal conclusions he draws from those facts.
“In reviewing defendant’s claim that his Miranda rights were violated, we must accept the trial court’s resolution of disputed facts and inferences, as well as its evaluation of the credibility of witnesses where supported by substantial evidence.” (Cruz, supra, 44 Cal.4th at p. 667.) The trial court believed the detective’s testimony that he did not ask defendant questions; rather, according to the detective, defendant initiated the conversation and returned time and time again to talking about the case. The detective’s testimony supports the trial court’s finding, and we therefore are not at liberty to discount the trial court’s finding based on its credibility assessment.
Moreover, facts in analogous cases make the legal outcome clear. In People v. Grant (1988) 45 Cal.3d 829, the statements the defendant made during transport by car from San Bernardino to Shasta were admissible because they were similarly spontaneous and volunteered. (Id. at p. 840.) The defendant maintained that the transport itself pressured him into offering incriminating explanations for the deaths of the victims. The court responded, “The claim is without merit. If it were valid, virtually all confessions by an accused in custody would be held involuntary, even if initiated by the accused himself. Transportation of a prisoner by car, listening for voluntary incriminating remarks, and custodial restraint of potentially dangerous individuals are not inherently suspect police activities. In the present case, Officer McDannold did not interrogate defendant at any time; indeed, he made it clear at one point that he could not ask questions. Under the totality of the circumstances, defendant’s admissions were voluntary and hence admissible.” (Id. at pp. 842-843.)
Similarly, in People v. Clark (1993) 5 Cal.4th 950 (overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), police officers transported the defendant to a hospital. Again, en route the defendant initiated a conversation, asking the officers about the potential sentence. After the officers responded, the defendant confessed. (Id. at p. 982.) The Supreme Court rejected the defendant’s attempt to exclude the confession, finding substantial evidence to support the trial court’s conclusion that there was no reason for the officers to suspect that their response to the defendant’s inquiry would trigger a confession. According to the court, the defendant had not been subject to “‘compelling influences, psychological ploys, or direct questioning.’ [Citation.]” (Id. at pp. 985-986.)
In the same way, it was defendant, not the detective, who initiated the “bullshitting.” It was defendant, like Grant and Clark, who wanted to talk about the case and volunteered information without prompting, without questioning, and without the exertion of any psychological ploys or underhanded manipulative techniques. Defendant, quite simply, wanted to talk and nothing that the detective said or did could dissuade him from doing so. The trial court properly admitted the volunteered statements since there had been no interrogation in violation of the Miranda protections. There was no error.
III
Defendant urges us to reverse his conviction for prejudicial juror misconduct based on the following chronology of events recounted by the juror. During trial, she heard the name of defendant’s girlfriend mentioned and recalled that one of her coworkers had the same maiden name. She later asked the coworker if her sister had a boyfriend, a baby, or drove an SUV. The coworker said she did not and the juror dismissed it. During deliberations, she did not consider that there was any connection or relationship between defendant’s girlfriend and her coworker. The verdicts were returned.
The following week the coworker approached the juror and told her that in fact her sister did have a baby named Rune. The juror realized that was defendant’s son’s name, but she did not immediately contact the court. The coworker encouraged her to meet with the defense investigator. The juror complied. She then consulted with an attorney, who advised her to contact the trial court. Defendant filed a motion for a new trial based on juror misconduct. The trial court found any “technical” misconduct harmless and denied the motion.
Defendant suggests the mere fact that a juror’s coworker’s sister had some kind of relationship with defendant requires us to reverse the judgment of conviction. Not so. Juror misconduct gives rise to a presumption of prejudice, but a presumption that can be rebutted by an evidentiary showing there was no prejudice. We must review the entire record to determine whether there is a reasonable probability of actual harm to defendant; that is, whether one or more jurors was influenced by exposure to prejudicial matter. (People v. Marshall (1990) 50 Cal.3d 907, 950-951.) In other words, was there a substantial likelihood of actual juror bias? In this case, our response is a resounding “No.”
First, this is not a case of a familial relationship as in Conaway v. Polk (4th Cir. 2006) 453 F.3d 567, 585-585, the nonbinding federal case upon which defendant relies. Here the relationship was quite attenuated-the sister of one of the juror’s coworkers.
Second, there is substantial evidence the juror was not biased at the time of deliberations. While she inquired about the possibility of a relationship, her coworker initially disabused her of the idea. And so she went into deliberations unvarnished and unaware of any possible connection.
Third, she did not obtain any extrajudicial information about the facts of the case. As the Attorney General points out, the sister’s involvement was minimal. She was not accused as a codefendant or accomplice. The coworker did not provide any information about any of the witnesses, about the events that transpired, or about anything else relating to the case.
Thus, we conclude there is no reasonable probability, let alone a substantial likelihood, that the juror was actually biased against defendant. She was unaware of the relationship at the time she deliberated his guilt, the relationship itself was very attenuated, and she obtained no additional information about the case from her conversations with her coworker. Because defendant suffered no actual harm from the juror’s conversation with her coworker, the presumption of prejudice is rebutted and we need not reverse the judgment.
IV
Defendant raises several issues involving the application of section 654 to his sentence. We accept the Attorney General’s concession that counts 4 and 6 (exhibiting a deadly weapon) were based on the same conduct as counts 5 and 7 (false imprisonment). The pipe was exhibited to keep Rocha and Gray on the couch and to prevent them from assisting Krupa. Because the conduct was simultaneous and indivisible, the Attorney General concedes that the sentences for counts 4 and 6 must be stayed. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1565; People v. Flores (2005) 129 Cal.App.4th 174, 186.)
Our resolution of the section 654 issue pertaining to counts 4 and 6 resolves defendant’s contention that the trial court violated section 654 by imposing separate consecutive gang enhancements on counts 3, 5, and 7. Counts 4 and 6, as defendant requests, must be stayed.
The trial court selected the burglary count as the base term because it had the longest sentencing range. (§ 1170.1, subd. (a).) The court stayed the sentence on the assault count under section 654 because the assault was the objective of the burglary. (People v. Hester (2000) 22 Cal.4th 290, 294.) But the court imposed a consecutive sentence for the burglary count because it found defendant harbored more than one intent and objective under section 654. Defendant challenges the trial court’s finding and maintains the consecutive sentence must be stayed. We disagree.
The trial court’s sentence is permissible, despite section 654, for either of two reasons. First, there were multiple victims. A defendant can be punished for each crime against a different victim even if he entertains a single principal objective during an indivisible course of conduct. (People v. Le (2006) 136 Cal.App.4th 925, 931-932.) Here there was one victim of the violent beating, Krupa, and two victims of the false imprisonment, Gray and Rocha. Thus, section 654 does not bar consecutive sentences based on multiple victims.
Second, “[a] defendant may be punished only once for all offenses incident to a single objective, but where the defendant had more than one objective, ‘the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Retanan (2007) 154 Cal.App.4th 1219, 1229.) We must affirm the trial court’s factual finding that defendant harbored more than one intent and objective if it is supported by substantial evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)
There was evidence that defendant entered the apartment and, while Vochatzer beat Krupa, threatened Rocha and Gray with a pipe and prevented them from stopping the beating. Although far from compelling, we conclude there was sufficient evidence that defendant and Vochatzer had multiple objectives-to beat Krupa and to deter Rocha and Gray from coming to his aid. Thus the sentences for both the burglary and the false imprisonment counts did not violate section 654.
Finally, defendant argues that the imposition of consecutive sentences for active participation in a gang and for the other gang offenses and enhancements violates section 654. He explains that the Legislature did not intend to permit separate terms under section 186.22, subdivision (a) for participation in a gang and section 186.22, subdivision (b)(1) for the benefit of a gang. People v. Garcia (2007) 153 Cal.App.4th 1499 (Garcia) holds otherwise.
“When a defendant commits a crime for the benefit of a criminal street gang, he or she may have two independent but simultaneous objectives-to commit the underlying crime and to benefit the gang. [Citations.] Thus, section 654 does not prohibit punishing a defendant both for violating section 186.22, subdivision (a) and for the underlying crime committed for the benefit of the gang when the two offenses involve different objectives.” (Garcia, supra, 153 Cal.App.4th at p. 1514.)
We conclude, as in Garcia, that defendant had two simultaneous but different objectives-forcibly restraining Rocha and Gray, and assisting a shot caller for the benefit of the USAS gang. There is no violation of section 654. Moreover, we accept the Attorney General’s assessment that the Legislature did not intend to prohibit sentencing under section 186.22, subdivisions (a) and (d) because the mental state required under each subdivision may be different.
DISPOSITION
The judgment is modified to stay imposition of the 16-month sentences on counts 4 and 6 (exhibiting a deadly weapon). In all other respects, the judgment is affirmed. The trial court shall prepare a modified abstract of judgment and forward a certified copy thereof to the Department of Corrections and Rehabilitation.
We concur: HULL, J. BUTZ, J.