Opinion
F070696
10-03-2017
THE PEOPLE, Plaintiff and Respondent, v. CRISTOBAL RUBIO et al., Defendants and Appellants.
Lynne S. Klein, under appointment by the Court of Appeal, for Defendant and Appellant Rubio. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant Tista. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. MCR046570A, MCR046570B)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Lynne S. Klein, under appointment by the Court of Appeal, for Defendant and Appellant Rubio. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant Tista. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellants Cristobal Rubio and Oscar De Tista appeal, following a bench trial, from their convictions on one count each of participating in a street gang (Pen. Code, § 186.22, subd. (a)), and the true findings regarding gang enhancements (§ 186.22, subd. (b)(1)(C)) related to charges to which appellants had previously pled guilty. Appellants contend there was insufficient evidence of their association with the Sureño street gang to support their convictions and enhancements. They also argue the trial court erred when it appointed conflict counsel to investigate whether there were grounds to withdraw their guilty pleas based on ineffective assistance of counsel. For the reasons set forth below, we reverse and remand for further proceedings.
All future statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Criminal Conduct
On June 16, 2013, at around 11:45 p.m., Jose Sanchez and his friend Filemone Gonzales bought a few beers and took them where Gonzales lived. When they arrived, they saw four people were outside on the porch. These people included Rubio and Tista. Rubio lived in the house along with his parents and his sister, Julia, who married Tista after this incident. Julia had her own room in the house, and Rubio shared a room on weekends with his brother Santiago.
According to Sanchez, when he arrived at the house one of the individuals asked him to share the beer. Sanchez complied, but then noticed the person clenching his fists and heard him say, "I want to do something to him." That person then attacked Sanchez, hitting him in his face and head. When Sanchez fell to the ground, he felt all four individuals striking and kicking him about the head. Sanchez suffered massive injuries from the attack.
Sanchez claimed he had never seen his attackers before, had done nothing to provoke them, and was not a gang member. Through photographs and an in-court identification, Sanchez identified Rubio and Tista as two of his attackers. The Charges and Guilty Pleas
Based on this incident, the people filed an amended information charging Rubio and Tista with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). The charge included enhancements for causing great bodily injury (§ 12022.7, subd. (a)) and for being committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). Rubio was separately charged with grand theft (§ 487) for allegedly taking Sanchez's cell phone. Both appellants were also charged with unlawfully and actively participating in a criminal street gang (§ 186.22, subd. (a)).
Prior to trial, both appellants pled guilty to the assault by means of force likely to produce great bodily injury charge and admitted the great bodily injury enhancement. Rubio also admitted to the grand theft charge. Appellants waived their right to a jury trial and proceeded with a bench trial on the gang allegations. Evidence of Appellants' Status as Active Participants in a Criminal Street Gang
At the start of the trial, the parties stipulated that, "the Sureno criminal street gang qualifies as a criminal street gang within the meaning of Penal Code Section 186.22, Subdivision (e) and Subdivision (f)." To further support the gang charge and enhancement, the People offered the expert testimony of Madera County Sheriff's Department Detective Richard Gonzales. Detective Gonzales explained he had around eleven years of experience working with gangs and was familiar with the Sureño criminal street gang and their rivals, the Norteños, based on multiple conversations with gang members regarding Sureño gang philosophy, membership, culture, and symbols. Detective Gonzales also noted he had investigated gang crimes and testified as an expert previously.
Detective Gonzales explained, briefly, that it is common for Sureño gang members to utilize the color blue, the term "Sur," which is shorthand for Sureño or South Sider, and the number 13, which represents the letter M and is a sign of allegiance to the Mexican Mafia. He noted that portions of the house where Rubio lived were decorated in blue and that a table found at the property had "Sur" scratched into it.
Detective Gonzales then reviewed a photograph of Tista and a series of drawings that had been located in Julia's room, as well as a photograph of Julia that had been located in Rubio's room. With respect to the picture of Tista, Detective Gonzales found it indicative of gang membership because Tista was wearing a shirt with blue writing and making an "S" symbol with his fingers. Reviewing the picture of Julia, Detective Gonzales stated he found gang writing on the picture. Specifically, he found the number 27 written out and in roman numerals, which Detective Gonzales stated was a symbol for the South Central Ghetto Boys. He also noted there was a "4" on the picture that had been crossed out, and stated Sureño gang members will commonly cross out fours because they represent the Norteño gang. Finally, Detective Gonzales noted the moniker Dimps or Dimples, which he suspected was Julia's moniker.
With respect to the drawings, Detective Gonzales found several gang symbols. These included the drawing of a face with a one and a three on each side of a mustache, symbolizing the number 13, along with three dots underneath the teeth. There was also the name Conejo, which is a known gang moniker for one of Rubio's brothers, and the phrase "Sur central." Another page had the symbol "SC" drawn on the figure of a man, which allegedly stands for South Central Ghetto Boys, and another had a drawing of a person in a number 13 jersey with "ghetto" written across their neck, again allegedly symbolizing the South Central Ghetto Boys. Other pages had similar drawings, several allegedly referencing the South Central Ghetto Boys.
Detective Gonzales testified he was familiar with the South Central Ghetto Boys through reading Internet articles about them, including on Wikipedia, and watching a YouTube video about them. Detective Gonzales also noted that many of the symbols utilized in the documentation referencing the South Central Ghetto Boys were common signs and symbols associated with the Sureño street gang. Based on those common symbols and statements made by Rubio, discussed below, that he was a Sureño, Detective Gonzales testified the South Central Ghetto Boys were a Sureño subset.
Detective Gonzales also discussed the nature of the injury inflicted upon Sanchez in this case. Detective Gonzales explained that gang members in bad standing may receive what is called a puto mark. This mark is either a slash or stab to the face which is designed to leave a scar behind, so that the victim will reflect on their misdeeds. Detective Gonzales found such a mark comparable to the injuries suffered by Sanchez, who required stiches and will likely have scars.
Opinion Regarding Rubio's Alleged Gang Affiliation
Detective Gonzales opined that Rubio was an active participant of the Sureño street gang. He based this opinion on several factors. First, Detective Gonzales stated that Rubio had been contacted while associating with Sureño gang members. To support this statement he discussed three incidents. In the first, Rubio was found associating with VLS gang members. VLS stands for Vatos Locos Sureños, which Detective Gonzales stated, with no further explanation, was a subset of the Sureño street gang claiming different areas in Madera. In this incident, Rubio was seen with VLS gang members, including Tista, engaging in underage drinking at a park. In the second, Detective Gonzales asserted Rubio had been associating with Varrio Knox Street gang members. Detective Gonzales stated, with no further explanation, that Varrio Knox Street is a Sureño subset. In the incident referenced, Rubio was seen near a table at a park known as the Knox table and "fresh tagging or writing promoting the Sureño criminal street gang, or particularly, Varrio Knox Street" was found at that location. In the third, Detective Gonzales claimed Rubio had been contacted during the investigation of several armed robberies. Detective Gonzales stated Rubio was contacted "with several identified Sureño criminal street gang members from various sets, such as Varrio Knox Street, PPL."
As a second basis for his opinion, Detective Gonzales claimed Rubio had "self-admitted to gang association, specifically, being a Sureño and claiming affiliation with the South Central Ghetto Boys." These admissions were demonstrated in part through his custodial housing in a Sureño gang housing unit. They were also demonstrated through statements made in a police interrogation. According to Detective Gonzales, Rubio "self-admitted to being an active Sureño. I'm not going to say—those are not going to be his exact words, but something to that effect." In the actual interrogation, the following conversations occurred with respect to potential gang affiliation.
In the first instance, the interrogating officer talked to Rubio about his gang affiliation:
"BLEHM: All right. And let's talk about your, uh, let's talk about your gang affiliation, okay. You're a documented Southerner, okay. What, uh, what, uh, what 'hood are you from, are you VLS?
"RUBIO: I don't have a hood.
"BLEHM: 'Cause Oscar's VLS.
"RUBIO: I'm not from out here, if I was to get in a hood, I would get in South Central Ghetto Boys, like, my family. I'm f— I was born and raised in LA, we've b—been here, like, two years.
"BLEHM: Okay, but you're a Southerner, you're a Sureno.
"RUBIO: Something like that.
"BLEHM: You are.
"RUBIO: I mean, I haven't got in the 'hood, so—uh, man, I don't . . ."
In the second, the interrogating officer asked about the Sureño symbols in the house:
"BLEHM: Oscar's a Southerner, okay, there's Sureno stuff all up in your room.
"RUBIO: All our family's from LA, that's right.
"BLEHM: The other two guys, Manuel and, uh, Andrew [the two others allegedly at the fight], Southerners, Surenos. I know who they are, dude, okay. They're Surenos, they're VLS guys.
"RUBIO: I don't know if they're Surenos, they kick it with us but I don't know, 'cause (unintelligible).
"BLEHM: But you and Oscar are Surenos. Okay. You might not be in a 'hood, but you're a Sureno, okay, and you back up Surenos, correct?
"RUBIO: Yeah."
In the third, and final instance, the interrogating officer asked about the reasons behind the attack:
"BLEHM: Okay. So you guys, I mean, he disrespected you at your house, you guys—you're all Southerners, you're all homeys, so you guys stomp this dude because he crossed the line at your pad, disrespected you, disrespect—
"RUBIO: Called us out. All that.
"BLEHM: Called you out, disrespected your gang and all that shit.
"RUBIO: Nah, he didn't disrespect no gang.
"BLEHM: Well, yeah, you guys are all Southerners, you're all together.
"RUBIO: Yeah, but we were not takin' it as gang related, you know, it's just that - he just went too far disrespectin' my pad, disrespectin' us and all that.
"BLEHM: But just a minute ago, you said the other thing.
"RUBIO: What'd I say?
"BLEHM: I—I'm not saying it was gang related, like, 'Hey, this guy's a busta,' okay.
"RUBIO: No, it wasn't gang related.
"BLEHM: But you guys, as Southerners, are not gonna allow anybody to disrespect you, let alone at your own home. And you get into a fight, your boys, your homeys, are gonna get in that fight with you. They got your back, right?
"RUBIO: Uh, sometimes.
"BLEHM: All the time.
"RUBIO: I don't know, not all homeys have your back.
"BLEHM: Good homeys do.
"RUBIO: Yeah.
"BLEHM: Right? And these are all good homeys 'cause they're hanging out. These guys had your back.
"RUBIO: They ain't good homeys, I don't think so."
Detective Gonzales further stated his opinion was strengthened by the drawings he reviewed, which "promote[d] the criminal street gang known as South Central Ghetto Boys," as well as a jail call with Julia where she told Rubio "they got all the gang shit or gang stuff." Finally, Detective Gonzales relied upon the fact the current crime was committed with Tista, whom he called a known Sureño gang member, and included an attack that was similar to a puto mark.
Opinion Regarding Tista's Alleged Gang Affiliation
Detective Gonzales also opined that Tista was an active participant of the Sureño street gang. Detective Gonzales relied on factors similar to those considered for Rubio. First, Detective Gonzales detailed several incidents where Tista was allegedly in the company of Sureño gang members. One, from 2010, involved a contact where Tista was believed to be engaging in underage drinking with three VLS gang members. Detective Gonzales again stated, without any further explanation, that VLS is a subset of the Sureño street gang. Detective Gonzales was then asked about other incidents where Tista had been documented associating with Sureño gang members. Detective Gonzales stated there had been several incidents, but provided no substantive details, until explaining that, in the most recent example, Tista was contacted while allegedly engaging in underage drinking with Rubio. When asked directly, Detective Gonzales stated Tista claims to be a part of VLS.
Detective Gonzales also noted Tista was currently, and had several times previously, been incarcerated in Sureño housing units. Tista had also previously been documented wearing blue shorts; a color Gonzales stated was "a common sign or symbols for the Sureño criminal street gang." In another incident, Tista had a beanie with the letters VLS inscribed on it. Finally, Detective Gonzales stated Tista was known to have the gang monikers of Little Boxer and either Trouble or Troubles.
Opinion Current Offense was Committed for the Benefit of a Street Gang
Following his opinion that Rubio and Tista were active members of the Sureño street gang, Detective Gonzales provided an opinion on whether the assault in this case would benefit, be at the direction of, or be done in association with a criminal street gang to promote, further, or assist in any criminal conduct by gang members. Detective Gonzales explained that gang members will generally respond violently when disrespected. Such a response enhances the gang member's reputation within the gang and promotes fear of the gang. This benefits the gang member within the gang and aids the gang by making it easier to defend territory through fear. Detective Gonzales thus opined that the crime in this case would benefit the Sureño street gang for these reasons, and also because the crime was committed by multiple Sureños, further strengthening the bonds of the gang and sending a message that others should not disrespect Sureños. Request to Withdraw Plea , Sentencing , and Appeal
Following the bench trial and an extension for additional briefing, on September 19, 2014, the trial court found appellants guilty of violating section 186.22, subdivision (a), and found true the special allegations pursuant to section 186.22, subdivision (b)(1) on the counts to which appellants had previously pled guilty. The court then set the matter over for sentencing.
On the day originally set for sentencing, Tista's attorney notified the court that Tista wanted to withdraw his plea. The court indicated it might need to do a Marsden hearing in light of this information and asked Tista if "You still want to do that." Tista responded "Well, your Honor, yes. Your Honor, I don't feel like—" before the trial court interrupted, "It's a yes or no. Do you still want to do that?" Tista responded affirmatively and the trial court continued the matter.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On November 3, 2014, the parties returned before the court. At this time, Rubio's counsel stated Rubio had "indicated to me that he wants to set aside his plea and also new trial on the court—the court trial, so I would request that counsel be appointed for that purpose." The trial court asked if there was "some reason why I would have to appoint counsel as opposed to you," to which counsel responded there "could be a conflict of interest." The trial court then appointed new counsel to "represent Mr. Rubio for the purpose of [a] motion to withdraw plea and admissions and [a] possible new trial." Tista's counsel then indicated Tista wished to withdraw his plea as well, and that "the only basis that I can see or he might claim is ineffective assistance of counsel." The trial court responded by appointing new counsel for Tista "for the motion to withdraw plea and admissions and—and [a] possible motion for new trial."
The court reconvened on November 21, 2014. Tista's temporary counsel proceeded first, telling the court he had spoken with Tista and reviewed the transcripts and "at this point I don't find any grounds upon which to file a motion to withdraw the plea." The court then asked about a potential motion for new trial, which Tista's temporary counsel stated would be handled by Tista's trial counsel before stating he had found nothing that would support such a motion. At a later point, temporary counsel clarified that he had not reviewed the trial transcripts and was relying only on what Tista said to conclude no motion for a new trial was appropriate. The trial court relieved temporary counsel and reappointed trial counsel for future proceedings.
A similar process occurred for Rubio. Temporary counsel stated she had reviewed the discovery and did not find any grounds for a motion for a new trial or to withdraw Rubio's plea based on ineffective assistance of counsel. The court then relieved temporary counsel and reappointed trial counsel.
The case proceeded to sentencing. Both Rubio and Tista received total terms of 14 years, each including a 10-year term for the gang enhancement. This appeal timely followed.
DISCUSSION
We begin with appellant's core substantive arguments. Appellants, relying heavily on People v. Prunty (2015) 62 Cal.4th 59 (Prunty), contend there was insufficient evidence introduced to demonstrate they were active participants in a criminal street gang as required by section 186.22, subdivision (a). Similarly, appellants argue there was insufficient evidence introduced to demonstrate the attack was either gang related or undertaken with the intent to benefit the Sureño street gang. The People argue both that Prunty is inapplicable to this case and, even if it is applicable, the evidence is sufficient to demonstrate appellants' connections to the Sureño street gang and, thus, sufficient to support the charges and enhancements. Standard of Review and Applicable Law
Under section 186.22, subdivision (a), a crime is committed by any "person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang." The gravamen of this crime is active participation in a criminal street gang. (People v. Albillar (2010) 51 Cal.4th 47, 55 (Albillar).) One actively participates in a criminal street gang when they have "involvement with a criminal street gang that is more than nominal or passive." (People v. Castenada (2000) 23 Cal.4th 743, 747.) Accordingly, the substantive offense has three elements: (1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity, and (3) that the person willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523 (Lamas).) " '[T]hat gang' clearly refers back to the gang in which the defendant is an active participant." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131.)
Under section 186.22, subdivision (b)(1), one's sentence will be enhanced when they have been "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." "The enhancement set forth in section 186.22(b)(1) does not pose a risk of conviction for mere nominal or passive involvement with a gang. Indeed, it does not depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (Albillar, supra, 51 Cal.4th at pp. 67-68.) "[T]he Legislature included the requirement that the crime to be enhanced be committed for the benefit of, at the direction of, or in association with a criminal street gang to make it 'clear that a criminal offense is subject to increased punishment under the [Street Terrorism Enforcement and Prevention] Act only if the crime is "gang related." ' [Citation.] Not every crime committed by gang members is related to a gang." (Id. at p. 60.) A crime can be gang related, however, if it is committed in association with the gang or for the benefit of the gang. (Ibid.)
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.) Prunty is Applicable to the Court's Analysis
As an initial matter, the People dispute that the California Supreme Court's recent decision in Prunty is applicable to a case like this, where the parties stipulated to the existence of a particular criminal street gang; in this case, the Sureño criminal street gang. We do not agree.
In Prunty, the California Supreme Court held that "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Prunty, supra, 62 Cal.4th at p. 71.) This showing demands more than a shared ideology or philosophy, a common name, a common enemy and/or common symbols. (Id. at pp. 70-72.) "The prosecution's evidence must permit the jury to infer that the 'gang' that the defendant sought to benefit, and the 'gang' that the prosecution proves to exist, are one and the same." (Id. at p. 75.) Thus, the prosecutor must adduce evidence that "allow[s] the jury to reasonably infer that the 'criminal street gang' the defendant sought to benefit—or which directed or associated with the defendant—included the 'group' that committed the primary activities and predicate offenses." (Id. at p. 76.)
While it is true the specific facts of Prunty involved proving the same issue on which the parties stipulated in this case—the existence of a criminal street gang as defined in section 186.22, subdivisions (e) and (f)—we do not read Prunty's holding to be so narrowly limited. Indeed, the California Supreme Court specifically noted that the prosecution's evidence must be sufficient not only to tie the alleged gang to the predicate offenses required to establish the gang's existence, but also to the gang "that the defendant sought to benefit," a direct reference to the broader substantive elements of the gang enhancement. (Prunty, supra, 62 Cal.4th at p. 75.)
The People argue "the Prunty court acknowledges that evidence linking subsets to the larger gang is not necessary once the prosecution has established the existence of a criminal street gang." But our review of Prunty and the citation provided by the People shows no such statement. Rather, it appears the People misread the court's example, which states: "when a defendant commits a crime to benefit a particular subset, and the prosecution can show that the subset in question satisfies the primary activities and predicate offense requirements, there will be no need to link together the activities of various alleged cliques." (Prunty, supra, 62 Cal.4th at p. 80.) Contrary to the People's position, this passage does not eliminate the need to link subsets together once a criminal street gang is established. Rather, it holds that where the subset itself is the proven criminal street gang, the prosecution need go no further.
Ultimately, it is simply not the case that the prosecution can baldly claim any alleged subset is a part of, or related to, some other gang merely because the existence of that latter gang has been proven. In all instances where evidence of multiple gang subsets are specifically utilized by the prosecution to prove a gang enhancement or crime under section 186.22, the prosecution must also prove that the subsets are either related to each other or related to the relevant gang, as detailed in Prunty. (Prunty, supra, 62 Cal.4th at pp. 80-81. ["What section 186.22(b) does require is that the 'criminal street gang' the prosecution proves to exist be the same gang that the defendant sought to benefit (or which directed or associated with the defendant in connection with the crime). [Citation.] This 'sameness' requirement means that the prosecution must show that the group the defendant acted to benefit, the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same."].)
The People claim, however, that even if Prunty is applicable, the evidence is sufficient to demonstrate appellants are members of the Sureño criminal street gang identified in the parties' stipulation. We therefore next consider whether the evidence is sufficient to sustain that conclusion. There is Insufficient Evidence Tista is an Active Sureño
We reject the People's argument that appellants forfeited this issue by failing to raise foundation objections to the expert's testimony. Appellants are not seeking to exclude any evidence on appeal, but rather are contending the evidence admitted is insufficient to support the verdict. The People have identified no basis to conclude this latter argument has been forfeited.
The evidence relied upon by Detective Gonzales to demonstrate Tista is an active Sureño gang member primarily relies upon Tista's connection with VLS. Each of the relevant contacts detailed by Detective Gonzales involves association with VLS gang members. His references to gang clothing tie Tista to VLS, as does his express admission that Tista claims to be a part of VLS. Tista's gang monikers do not tie him to any particular gang and, outside of this evidence, Detective Gonzales has only the fact that Tista once wore blue pants and was housed in Sureño housing units. At best, then, the evidence shows Tista is part of a group called VLS.
Although needing to make the necessary connection to the Sureño street gang, Detective Gonzales provided no testimony connecting VLS to the Sureños, other than his own unsupported conclusion. Nor does the evidence of blue pants and Sureño jail housing close the gap. As Prunty held, the mere use of similar symbols, without more, is insufficient to connect two gangs. (Prunty, supra, 62 Cal.4th at pp. 70-72.) There are also multiple reasons why one would choose to be housed in a Sureño unit, aside from the fact their potential gang is a proper subset of the overall Sureño street gang, yet Detective Gonzales made no effort to explain why a VLS member seeking Sureño jail housing demonstrate VLS is a subset of the Sureño street gang. In this case, the gang identified for the purposes of the charges brought, the Sureño criminal street gang, has not been connected in any way to the gang the evidence suggests Tista belongs to and potentially sought to aid when committing his crimes. There is Insufficient Evidence Rubio is an Active Sureño
Similar problems arise with respect to Rubio, although the evidence tying him to the Sureño street gang is admittedly stronger than that connecting Tista. We note first that the majority of the evidence tying Rubio to an active gang suggests he is part of what is alleged to be the South Central Ghetto Boys gang. Even if we wanted to rely on Detective Gonzales's opinion that the South Central Ghetto Boys are a Sureño subset, an untenable position given his wholly inappropriate reliance on Wikipedia and YouTube to identify aspects of the gang for his opinion, we could not. He provided no testimony even remotely linking the South Central Ghetto Boys to the Sureño criminal street gang aside from an apparent reference to related symbols. As Prunty held, the mere sharing of symbols is insufficient evidence of a connection between two different gangs to support an expert's opinion they are related. (Prunty, supra, 62 Cal.4th at pp. 70-72.) Accordingly, all of the evidence relied upon by Detective Gonzales that referenced or related to the South Central Ghetto Boys is irrelevant to whether Rubio is a gang member for the purpose of the charges in this case.
Excluding this evidence, we are left with evidence that Rubio associated with VLS gang members, including Tista, and the fact that he allegedly affirmed an association with Sureños in his interrogation. As discussed above, the lack of any evidence connecting VLS to the Sureño street gang precludes the evidence Rubio associated with VLS gang members from bearing any weight in the analysis. This leaves only Rubio's purported admissions to support the conclusion he is an active participant in the Sureño street gang. We do conclude the direct admission from Rubio during interrogation that he associates with Sureños is minimally sufficient to demonstrate his membership in the gang. However, we cannot extrapolate from that membership any role that is more than nominal or passive. The full set of evidence regarding any active role in gang activity ties Rubio to alleged gangs that are not properly connected to the Sureño street gang. As such, the alleged Sureño membership here is insufficient to satisfy the gang enhancement statutes. Application to the Statutes Charged
Having concluded the evidence is insufficient to demonstrate appellants are active Sureño gang members, we next need to consider the effect such a failure of proof has on the charges brought in this case. As noted above, appellants faced both a criminal charge under section 186.22, subdivision (a), and a sentencing enhancement under section 186.22, subdivision (b)(1).
Considering first the substantive charge under section 186.22, subdivision (a), it is apparent the People's failure to demonstrate appellants were active members of the Sureño street gang precludes a conviction on that charge. As noted above, the offense requires proof not only of active participation in a criminal street gang, but also that the person willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang. (Lamas, supra, 42 Cal.4th at p. 523.) The only street gang proven to exist in this matter was the Sureño gang subject to the parties' stipulation. No other organization was demonstrated to satisfy the definitional requirements of section 186.22, subdivisions (e) and (f). However, the evidence was insufficient to demonstrate appellants were active members of this criminal street gang and, as such, also insufficient to demonstrate they were promoting, furthering, or assisting in felonious criminal conduct by the Sureño street gang. Accordingly, we reverse appellant's convictions under section 186.22, subdivision (a).
We find similar problems with the requirements of the gang enhancement under section 186.22, subdivision (b)(1). The failure to demonstrate appellants were part of the same Sureño street gang identified as the relevant gang essentially precludes a finding, under the first requirement of the enhancement, that the crime was committed in association with or at the direction of the Sureño street gang. (See Albillar, supra, 51 Cal.4th at p. 60 [offenses may be found to have been committed "in association" with a gang where the record supports a finding the defendants "relied on their common gang membership and the apparatus of the gang" in committing the crimes].) This leaves the question whether evidence could support a reasonable inference that the crime was gang related because it was committed for the benefit of the Sureño street gang. On this point, Detective Gonzales provided a general background on gangs and their ability to instill fear through violent acts. His opinion that this attack was designed to create such fear, however, turned on similarities between the attack and what Detective Gonzales called a puto mark. That mark was associated, in Detective Gonzales's experience, with conduct directed toward other gang members who had spoken to the police. There was no evidence, aside from mere speculation, connecting such an act, normally utilized against gang members, to an apparently random attack involving, at best, one nonactive Sureño. Such speculation is insufficient evidence to support the charged enhancement. (See People v. Ramon (2009) 175 Cal.App.4th 843, 851 [finding it improper for expert, through speculative connections, to inform the jury how he felt the case should be resolved].) Accordingly, we reverse the true findings on appellant's enhancements under section 186.22, subdivision (b(1). Appellants' Requests for Counsel
We next consider the contention, raised in Rubio's supplemental briefing, that the trial court erred by failing to conduct a Marsden hearing in this matter. Appellants rely extensively on the California Supreme Court's opinion in People v. Sanchez (2011) 53 Cal.4th 80 (Sanchez) for the proposition that the trial court was required to hold a Marsden hearing and either appoint new counsel for all purposes or deny appellants' request for new counsel when appellants requested to file motions for a new trial based on ineffective assistance of counsel. The People oppose, arguing Rubio did not make a clear indication he wanted a substitute attorney and, thus, the trial court was under no obligation to conduct a Marsden hearing. Attempting to distinguish Sanchez, the People argue the California Supreme Court's opinion is limited to factual scenarios where there was a clear indication the defendant wanted substitute counsel.
Appellant Tista filed a notice in his opening and reply briefs that he joined in all issues and arguments raised by Rubio that may accrue to Tista's benefit. Tista did not file any separate argument regarding these issues. However, given the same procedure was used for both appellants, we will consider the issue joined.
We do not find Sanchez distinguishable. In Sanchez, at the sentencing hearing, the public defender told the trial court that the defendant " 'wishe[d] to have the Public Defender explore having his plea withdrawn.' " (Sanchez, supra, 53 Cal.4th at p. 85.) The trial court then questioned whether this was something counsel could do or whether the court had to appoint " 'conflict counsel.' " (Ibid.) The public defender initially responded " 'conflict counsel cannot be appointed' " until the trial court held a Marsden hearing and declared a conflict. (Sanchez, at p. 85.) At the next hearing, based on the public defender's representation one was needed, and without holding a Marsden hearing, the trial court appointed " 'conflict counsel for the sole purpose of looking into the motion to withdraw [defendant's] plea.' " (Sanchez, at p. 85.) When conflict counsel reported that he found no basis for such a motion, the trial court reinstated the public defender and proceeded with sentencing. (Id. at p. 86.)
The Court of Appeal reversed, finding Marsden error. (Sanchez, supra, 53 Cal.4th at p. 86.) The Supreme Court affirmed, holding that the trial court erred in multiple respects, including "by appointing substitute counsel without a sufficient showing that failure to appoint substitute counsel would substantially impair or deny defendant's right to assistance of counsel." (Id. at pp. 92-93.) With respect to the obligation to make a clear indication of a desire for substitute counsel, the court concluded such a requirement was indeed necessary. (Id. at p. 90.) But it agreed the Marsden hearing requirements were properly "triggered by defense counsel's request for appointment of substitute counsel to investigate the filing of a motion to withdraw [the] plea." (Sanchez, at p. 90, fn. 3.)
The trial court here employed the same improper procedure as in Sanchez. Faced with statements from counsel for both Rubio and Tista that appellants intended to file motions for a new trial and to withdraw their pleas, in Rubio's case with affirmation conflict counsel was needed and in Tista's based on what counsel believed would be an ineffective assistance of counsel claim, the trial court appointed temporary counsel without any further inquiry into whether the Marsden standard was met. The record does not show that the trial court determined " 'in the exercise of its discretion . . . that [the accused] has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel.' " (Sanchez, supra, 53 Cal.4th at p. 89.) The decision to appoint temporary substitute counsel was thus improper under Sanchez.
DISPOSITION
The portion of the judgment finding appellants guilty under Penal Code section 186.22, subdivision (a) and the true findings on the enhancements alleged under Penal Code section 186.22, subdivision (b)(1) are reversed for insufficiency of evidence, and double jeopardy principles bar a retrial. In addition, the judgment is vacated and the matter is remanded to the trial court to conduct a full Marsden hearing should appellants still desire substitute counsel. If the trial court grants the motion, the matter shall proceed accordingly. If the motion is denied, the trial court shall conduct a resentencing hearing in conformance with this opinion and enter a new judgment.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
PEÑA, J. /s/_________
BLACK, J.
Judge of the Superior Court of Fresno County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------