Opinion
G053601
01-08-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN SAWAY, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 10CF0133) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted John Saway of first degree murder (Pen. Code, § 187, subd. (a); all further statutory references are to the Penal Code), possession of a firearm by an ex-felon (§ 12021, subd. (a)(1)), and active participation in a criminal street gang (§ 186.22, subd. (a)).
The jury found true an allegation the murder was committed with the intent to further the activities a criminal street gang (§ 190.2, subd. (a)(22)), and allegations Saway committed the murder and illegally possessed the firearm for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and discharged a firearm causing death with the intent to promote, further or assist criminal conduct by members of a criminal street gang (§ 12022.53, subds. (d), (e)(1)). The court found true an allegation Saway had a prior serious felony conviction within the meaning of section 667, subdivision (a).
The court sentenced Saway to life without the possibility of parole for the murder with the gang special circumstance allegation, a consecutive term of 25 years to life for the firearm causing death enhancement, and a consecutive five-year determinate term for the prior serious felony conviction enhancement. Pursuant to section 654 the court stayed sentence on the active participation criminal street gang offense, and all of the other enhancement allegations.
Saway challenges the sufficiency of the evidence to prove the group called "We Don't Care" (WDC) is a criminal street gang within the meaning of section 186.22, subdivision (f), and the court's finding he suffered a prior serious felony conviction within the meaning of section 667, subdivision (a). We reject both challenges and affirm the judgment.
FACTS
1. Prosecution Evidence
a. Crime Scene
One night in January 2010, there were two parties in different apartments in the 15000 block of Myrtle Avenue in Tustin. There were between 10 and 15 people at one party, including Eduardo Landaverde, Steven Gutierrez, Karla Luna, Xavier Martinez, Jesus Gomez, and Juan Rodriguez.
The other party was a little smaller, only about six people, and took place at Karina Hernandez's apartment. David Escobar, Steven Kao, Pablo Kachirisky, Ravy Nhem, and Hernandez were present.
After midnight, Kachirisky and Nhem left Hernandez's apartment to walk to a nearby liquor store. Gutierrez was standing in an alley behind the apartment complex and near the liquor store's parking lot. Gutierrez got into a verbal argument with Kachrisky. The argument prompted Landaverde, who had been watching, to walk toward Kachirisky and Nhem.
Nhem saw Gutierrez and Landaverde approaching him. He called someone and told them he was about to get into a fight. Kao and Escobar were in Hernandez's apartment when they learned of Nhem's call. Kao grabbed a knife, and Kao and Escobar left to help Nhem. When Kao and Escobar found Nhem, all three argued with Gutierrez and Landaverde. Both sides shouted gang names at each other. Kao yelled out, "TRG," which is the Tiny Rascal gang.
Eventually, Kao and Gutierrez agreed to fight one-on-one. However, Kao saw several other people headed toward him, and he, Escobar, and Nhem decided to head back to Hernandez's apartment instead. When they reached Hernandez's apartment, Kao made a phone call and told whoever answered to "[g]et all the homies and the big homies and come to [Hernandez's apartment]."
Kao, Escobar, and Nhem waited in Hernandez's apartment for about 30 minutes before they learned that Runon Keo, Saway, and Sabreth Yin, all members or associates of WDC, had come to the neighborhood in Keo's car in response to Kao's call. Saway and Yin were armed with handguns.
Kao, Escobar, and Nhem met Keo, Saway, and Yin on the sidewalk in front of the apartment complexes before Saway walked into the street and held up a .45-caliber handgun. He yelled, "Hey, it's TRG," and started shooting toward a large group of people forming near the alley. The group scattered and most of the people ran into the alley. However, Luna and Rodriguez, who had been standing outside, were trapped behind a tree. Rodriguez panicked and ran toward the alley. Several shots were fired as Rodriguez ran, and a bullet passed through the left lobe of Rodriguez's lung, the right side of his heart, and came to rest in the street.
Saway yelled to Yin, "get 'em that way," and he directed Yin to chase the remainder of the fleeing crowd into the alley. Within seconds, another man, David Vargas, emerged from the alley and returned Saway's fire. Saway and Yin ran back to Keo's car, and the trio sped away. A couple of hours after the shooting, an anonymous phone call led police to Rodriguez's body.
Crime scene investigators found five .40-caliber shell casings, and six .45-caliber shell casings in spots around cars parked on the street. They found one .45-caliber shell casing, and a .45-caliber bullet in the street. A firearms expert testified all the .45-caliber bullets had been fired from the same gun, and it was not the gun that had fired the .40-caliber bullets.
b. Gang Expert Testimony
Santa Ana Police Detective Matthew McLeod testified as the prosecution's gang expert. He stated WDC began as a tagging crew, but it evolved into a criminal street gang. Using certified court documents, McLeod testified about three predicate offenses committed by WDC gang members. In 2004, James Scott, an active participant in WDC had been convicted of illegal firearms possession. In the same year, Seyha Leang, another WDC active participant, was convicted of making criminal threats. In 2007, Saway was convicted of illegal firearm possession. He admitted active participation in WDC, and that he committed the crime for WDC's benefit.
By 2010, McLeod said WDC had a total of 25 to 30 members, with between 10 and 15 active participants. WDC and its ally, TRG, controlled a portion of southeast Santa Ana, but also congregated in the area of the shooting. A rival gang, the Minnie Street Lopers, and their ally, Little Minnie gang, claimed the same turf.
Pointing to the three predicate offenses, and the instant crimes, McLeod testified WDC's primary activities included driving or taking vehicles without the owner's consent and illegal possession of firearms. In McLeod's opinion, Saway was an active participant in WDC when he killed Rodriguez. He also opined Saway murdered Rodriguez to further and promote WDC's criminal enterprise, and for WDC's benefit.
2. Defense
Saway argued Vargas shot first, and he and Yin merely returned fire in self-defense. He called a firearms expert, who testified the condition of one of the .45-caliber bullets was consistent with its having been fired into the air.
DISCUSSION
1. Sufficiency of the Evidence to Prove WDC is a Criminal Street Gang
To establish WDC as a criminal street gang under section 186.22, subdivision (f), the prosecution had to prove beyond a reasonable doubt: (1) WDC is "an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members [have] engage[d] in . . . a pattern of criminal gang activity. [Citations.]" (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.)
The requisite "'pattern of criminal gang activity'" consists of "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [certain enumerated offenses], provided at least one of these offenses occurred after the effective date of this chapter [September 28, 1988] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . . ." (§ 186.22, subd. (e).)
Saway asserts the current crimes are the most recent predicate offenses, and because the date of the current crime is three years and a day after Saway's 2007 conviction for illegal firearm possession for the benefit of WDC, Saway argues the prosecution "presented no evidence that a WDC gang member had committed any of the listed offenses within three years of the most recent (and last) of the alleged predicate offenses, and there was insufficient evidence of a pattern of criminal gang activity by the WDC group." We disagree.
Nothing in section 186.22 requires the predicate offenses to have occurred within three years of the charged offense. (People v. Fiu (2008) 165 Cal.App.4th 360, 388, fns. omitted (Fiu).) Saway attempts to rely on In re Lincoln J. (1990) 223 Cal.App.3d 322 (Lincoln J.) to argue to the contrary, but his reliance is misplaced.
In Lincoln J., the appellate court found insufficient evidence of a pattern of criminal activity where the charged offense was one of the relied-upon predicate offenses. (Lincoln J., supra, 223 Cal.App.3d at pp. 327-328.) Here, by contrast, the prosecution relied on certified court documents and McLeod's testimony about two predicate crimes committed in 2004, Scott's conviction for illegal firearms possession and Leang's conviction for making criminal threats, and Saway's 2007 conviction for possession of a firearm by a felon. The predicate crimes occurred after the effective date of section 186.22 and within three years of each other. Thus, the three predicate offenses alone established the requisite pattern of criminal gang activity. (Fiu, supra, 165 Cal.App.4th at p. 388; Lincoln J., at pp. 327-328.)
In addition, the prosecutor told the jury they could rely on the current crimes as an alternative basis to establish WDC's pattern of criminal gang activity. Charged offenses may be used in this way either by themselves (People v. Loeun (1997) 17 Cal.4th 1, 4-5; Fiu, supra, 165 Cal.App.4th at p. 388) or in conjunction with earlier predicate crimes (Lincoln J., supra, 223 Cal.App.3d at pp. 327-328). In this case, the jury could have based its finding on the current crimes alone, but either way, the prosecution presented substantial evidence WDC meets the statutory definition of a criminal street gang.
2. Prior Serious Felony Conviction
Under section 1192.7, subdivision (c)(28), a "serious felony" includes "any felony offense that is committed for the benefit of a criminal street gang under the section 186.22[, subdivision ](b)(1) gang sentence enhancement." (People v. Briceno (2004) 34 Cal.4th 451, 464, fn. omitted.)
According to certified court documents, in 2007, Saway pled guilty to possession of a firearm by an ex-felon (§ 12021), and he admitted the crime had been committed for the benefit of WDC (§ 186.22, subd. (b)). The certified court records do not show the court's disposition of the gang enhancement. Focusing on the omission of the court's disposition of the gang enhancement, Saway argues, "where a defendant pleads guilty to an offense and admits an enhancement that can make that offense a serious felony, such as the gang enhancement, but the trial court has discretion to dismiss or strike that enhancement at the time of sentencing, the defendant's status as a person convicted of a serious felony is only provisional."
Saway relies on People v. Park (2013) 56 Cal.4th 782 (Park) to support his assertion, but his reliance is misplaced. In Park, supra, 56 Cal.4th 782, as here, the defendant's sentence for his current crimes was enhanced by five years under section 667, subdivision (a), based on his prior conviction of a serious felony. However, in Park, the court had reduced the prior offense to a misdemeanor under section 17, subdivision (b)(3), and dismissed it pursuant to section 1203.4, subdivision (a)(1), before the defendant committed his current crimes. (Park, at p. 787.)
The Court of Appeal held the prior conviction remained a serious felony for purposes of sentence enhancement under section 667, subdivision (a), notwithstanding the reduction and dismissal, but the California Supreme Court disagreed: "when the court in the prior proceeding properly exercised its discretion by reducing the . . . conviction to a misdemeanor, that offense no longer qualified as a prior serious felony within the meaning of section 667, subdivision (a), and could not be used, under that provision, to enhance defendant's sentence." (Park, supra, 56 Cal.4th at p. 787.)
Needless to say, section 17, subdivision (b) was not implicated in Saway's 2007 case, and nothing in Park suggests the sentencing court's failure to record the disposition of a gang enhancement somehow transmutes the resulting serious felony conviction into a nonserious felony or misdemeanor conviction.
Again, in 2007 Saway admitted he illegally possessed the firearm for the benefit of WDC. The court did not reduce that felony to a misdemeanor, nor strike the gang enhancement. As the appellate court observed in People v. Milosavljevic (1997) 56 Cal.App.4th 811, 817, "'the determination of guilt by a jury verdict or by plea of guilty suffices to convict for purposes of the serious felony statute. By a parity of reasoning, the admission of an enhancement made with full knowledge of the consequences also serves to determine the nature of the offense it modifies and in cases like this one constitutes the conviction of a serious felony.'" (See People v. Shirley (1993) 18 Cal.App.4th 40, 47 [court struck punishment for the enhancement]; see also People v. Johnson (1989) 210 Cal.App.3d 316, 324 [the phrase "has been convicted" as contained in section 667 does not require entry of judgment upon the verdict in the earlier proceeding].)
Substantial evidence supports the court's finding Saway's prior felony conviction for illegal gun possession constituted a prior serious felony conviction within the meaning of section 667, subdivision (a).
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.