Opinion
B226463
11-10-2011
THE PEOPLE, Plaintiff and Respondent, v. SHARROD MOTEN, Defendant and Appellant.
Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Steven E. Mercer, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA108752)
APPEAL from a judgment of the Superior Court of Los Angeles County, Eleanor J. Hunter, Judge. Affirmed as modified.
Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Sharrod Moten, appeals the judgment entered following his conviction for robbery with street gang, firearm use, prior prison term and Three Strikes enhancements (Pen. Code §§ 211, 186.22, subd. (b), 12022.53, 667.5, 667, subd. (b)-(i)). He was sentenced to state prison for a term of 55 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed as modified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
On the afternoon of September 26, 2009, Rafael Milton was waiting for a bus on the corner of Avalon and 118th Streets. There were a number of other people also waiting at the bus stop. Two young kids came up and asked Milton for his cell phone. When Milton said no, they left. Subsequently, defendant Moten came up and started talking to the woman who was sitting next to Milton. Moten had a "B" tattooed on his forehead. Milton had seen Moten a few times before, but they had never spoken. At one point, Moten turned to Milton, asked if they knew each other, and then twice asked where Milton was from. Both times Milton said he was from Louisiana. Moten made a comment about Milton having a nice cell phone and asked to see it, but Milton refused and moved to another bench.
Milton thought these kids were just fooling around because they were laughing and they left as soon as he refused to give them his phone: "They were goof balls. I guess they were just joking around to see if I would give them my phone."
Suddenly Moten was tugging on the cell phone and telling Milton to let go of it. When Milton refused, Moten said, "We can do it the easy way or the hard way." Moten then turned slightly, displaying the handle of a gun sticking out of his waistband. When Milton still refused to surrender his phone, Moten drew the gun and put it against Milton's head. Milton gave him the phone. As Moten walked away from the bus stop, he asked the woman where she was going. When she answered "to the hood," Moten apparently made a gang sign and said, "Okay, I'll be there shortly."
After Moten left, Milton asked three or four of the people at the bus stop to lend him a phone so he could call the police, but they all refused. Finally, someone on the bus Milton boarded let him call 911.
Samuel Murullo is a Los Angeles Police Department officer assigned to the southeast area gang enforcement detail. On October 1, 2009, he went to an apartment complex at 376 Imperial Highway, which is one of the primary hangouts of the 118 East Coast Crips gang. Moten was standing in front of the complex with two other men. All three of them were wearing gang attire. Moten was wearing a baseball cap with a "B" on it and he had a "B" tattooed between his eyebrows. Murullo testified this symbolized Moten's affiliation with the 118 East Coast Crips because it referred to a "set" or subdivision of the gang known as the "Block Crips." Moten told Murullo he was a member of the 118 East Coast Crips. Murullo searched him and found Milton's cell phone in his pocket.
Erik Shear is a Los Angeles Police Department detective assigned to the southeast area gang impact team. He has worked in gang areas for ten years. For the past five years he has been working on this impact team, specifically assigned to investigating the East Coast Crips. Shear testified the East Coast Crips is "a huge gang, probably the largest Crip gang in Los Angeles." It has 12 or 13 sets, one of which is the 118 with about 100 members. Because the 118s "affiliate themselves with the original Block Crips" they commonly use the letter B as a symbol. Shear testified the primary activities of the 118 East Coast Block Crips included such crimes as burglaries, robberies, carjackings and violent assaults.
Shear testified, "East Coast Crips does not reference the east coast of the country. East Coast references the east side of Los Angeles," with "the 110 Freeway . . . kind of the dividing line, really it's Main Street, but they're so close either is acceptable. So East Side turned into East Coast at some point."
The bus stop where Milton was robbed is within the gang's territory.
Asked a hypothetical question based on the facts of this case, Shear testified the robbery had been committed for the benefit of the 118 East Coast Crips. The question "Where are you from?" was an attempt to determine whether Milton belonged to a gang or, on the other hand, he was just an ordinary civilian who would make an easy victim. Sending the two young kids to approach Milton initially was "consistent with someone directing a group of people out there, doing what we call pocket checks, or robberies, which are real low level, 'Give me this, give me that,' and [a lot] of people give it up out of fear. But when [Milton] didn't give it up, then . . . it's time to step it up, and show this guy . . . you don't get to say no. That is absolutely consistent with a gang crime."
Shear also testified: "[Y]ou said in the hypothetical that there's numerous people around there, and no one calls the police. That's not normal behavior. Not only does no one call the police, but no one allows him to use their phone to call the police. I mean, it's a text book case of a neighborhood in fear of retaliation of the gang. And . . . when the victim didn't give up the property, and the gun is pulled out, and put at someone's head, it's showing this is what we'll do if you don't go along with the program."
2. Defense evidence.
Moten testified he knew Milton. They first met a month before the alleged robbery when Milton purchased marijuana from him. Milton subsequently bought marijuana a few more times. On the day of the incident, they had arranged another meeting. Milton asked if he could have some marijuana on credit, offering as collateral either a laptop, a camera or the cell phone. Moten elected to take the cell phone. Their agreement called for Moten to return the phone when Milton paid him $100.
Moten testified he was essentially born into the 118th Street Block Crips because his father, his uncles, and his cousins were all members of the gang. Moten testified the gang's major source of income was selling drugs, not committing robbery.
CONTENTIONS
1. There was insufficient evidence to sustain the gang enhancement finding.
2. The trial court erred by giving CALCRIM No. 376 (possession of recently stolen property).
3. Moten's sentence constituted cruel and unusual punishment.
4. The trial court miscalculated Moten's presentence custody credits.
DISCUSSION
1. The evidence was sufficient to sustain the gang enhancement.
Moten contends there was insufficient evidence to sustain the gang enhancement because the prosecution failed to prove the "primary activity" element of section 186.22, subdivision (b). This claim is meritless.
a. Legal principles.
As we have explained, "Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group 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 must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]" (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.)
As to the "primary activity" element, "the trier of fact must find that one of the alleged criminal street gang's primary activities is the commission of one or more of certain crimes listed in the gang statute. In People v. Gardeley [(1996)] 14 Cal.4th 605 . . . , that requirement was satisfied by the testimony of a police gang expert who expressed his opinion that the primary activities of the group in question were drug dealing and witness intimidation, both statutorily listed crimes." (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) "The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members. . . . [¶] Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute." (Id. at pp. 323-324.) "The testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang's primary activities. [Citations.]" (People v. Duran, supra, 97 Cal.App.4th at p. 1465.)
"When determining whether the evidence [is] sufficient to sustain a criminal conviction [or an enhancement], we review the entire record in the light most favorable to the judgment to determine ' "whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.]' [Citations.] 'We draw all reasonable inferences in support of the judgment. [Citation.]' [Citations.] Reversal is not warranted unless it appears ' "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." [Citation.]' [Citation.]" (People v. Duran, supra, 97 Cal.App.4th at pp. 1456-1457.)
b. Discussion.
Asked, "What are the primary activities of [the] Eleven Eight East Coast Block Crips?", Detective Shear testified: "There's several primary activities. I would say . . . [their] bread and butter crime[s] are robberies and high end burglaries. And, really, a lot of that depends on just if someone is there or not. They might go in with the intent of robbery, and if no one is there it's a burglary or vice versa, just because of the situation. I almost kind of group it as one, robberies, and it can be burglaries as well. [¶] . . . They also engage in plenty of other crimes. There's narcotic sales, there's carjackings . . . . [¶] And then [a lot] of the ways that they commit these other crimes results in shootings, murders, attempt[ed] murders, beatings, assaults. And then . . . there's all the way down to the minor things . . . [a lot] of graffitiing, [a lot] of vandalism. You even have witness intimidations. It really spans like that. They're really known for robberies and burglaries."
Asked if the gang committed these crimes on a regular basis or only occasionally, Shear testified: "Daily."
Robberies and burglaries are qualifying crimes for the "primary activity" element of the gang statute. (§ 186.22, subd. (e)(2) & (11), (f).) The content of Shear's testimony is the usual way of proving that a gang's primary activities include one or more of the enumerated crimes. (Compare People v. Vy (2004) 122 Cal.App.4th 1209, 1219 [testimony that aggravated assaults and attempted murder "were among . . . the primary activities" of gang proved primary activity element] and In re Ramon T. (1997) 57 Cal.App.4th 201, 207 [testimony gang "engaged in several of the crimes listed in section 186.22 as a primary activity" proved primary activity element] with People v. Perez (2004) 118 Cal.App.4th 151, 160 [testimony about gang's "history of racial hatred and violent acts toward Asians" failed to prove primary activity element].) Shear's testimony would have been sufficient even if he had not expressly used the phrase "primary activity." (See People v. Margarejo (2008) 162 Cal.App.4th 102, 107 [expert's testimony that gang's activities ranged from vandalism to murder implicitly incorporated prosecutor's question about gang's primary activities].)
Moten's reliance on In re Alexander L. (2007) 149 Cal.App.4th 605, is misplaced. There, the expert only testified: " 'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.' " (Id. at p. 611.) This testimony was deemed insufficient because the expert "did not directly testify that criminal activities constituted [the gang's] primary activities. Indeed, on cross-examination, [he] testified that the vast majority of cases . . . he had run across were graffiti related." (Id. at pp. 611-612, fn. omitted.) Here, Shear testified consistently that the gang's primary activities included enumerated crimes. In contrast, "the expert in Alexander L. equivocated on direct examination and contradicted himself on cross examination." (People v. Margarejo, supra, 162 Cal.App.4th at p. 107.)
Alexander L. also held the expert's testimony lacked an adequate foundation "because information establishing reliability was never elicited from him at trial. It is impossible to tell whether his claimed knowledge of the gang's activities might have been based on highly reliable sources, such as court records of convictions, or entirely unreliable hearsay." (In re Alexander L., supra, 149 Cal.App.4th at p. 612, fns. omitted.) But here, Shear testified he had been personally involved in investigating the crimes committed by the 118 East Coast Block Crips for at least five years, which demonstrated the reliability of his opinion regarding the gang's primary activities. (See People v. Duran, supra, 97 Cal.App.4th at p. 1465 [expert testimony based on "personal investigation of crimes committed by gang members" may be sufficient to prove primary activity element].)
Moreover, Moten himself probably satisfied the primary activity requirement when he testified that drug trafficking was the gang's chief source of income. The sale of controlled substances is one of the enumerated offenses in the gang statute. (§ 186.22, subd. (e)(4).)
There was sufficient evidence to sustain the gang enhancement.
2. CALCRIM No. 376 was properly given.
Moten contends the trial court erred by giving CALCRIM No. 376, the standard jury instruction on the defendant's possession of recently stolen property. This claim is meritless.
The jury was instructed:
"If you conclude that the defendant knew he possessed property, and you conclude that the property had in fact been recently stolen you may not convict the defendant of robbery based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt then you may conclude that the evidence is sufficient to prove he committed robbery.
"The supporting evidence need only be slight, and need not be enough by itself to prove guilt. You may consider how, when, or where the defendant possessed the property along with any other relevant circumstances tending to prove his guilt of robbery.
"Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to [the] conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
Moten argues this instruction contained "a fundamental error [because] it informs the jury that the corroborating evidence need only be slight, relieving the prosecution of its burden of proving each element beyond a reasonable doubt." However, as Moten acknowledges, this argument has been repeatedly rejected, both as to CALCRIM No. 376 and as to its similarly-worded predecessor CALJIC No. 2.15. (See People v. McFarland (1962) 58 Cal.2d 748, 754 ["Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt."]; accord, People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574-1577 [regarding CALJIC No. 2.15]; People v. Anderson (2007) 152 Cal.App.4th 919, 949 [regarding CALCRIM No. 376].)
There was no error in giving this instruction.
3. Moten's sentence was not cruel and unusual.
Moten contends his sentence of 55 years to life constitutes cruel and unusual punishment under the Eighth Amendment. This claim is meritless.
a. Legal principles.
"The Eighth Amendment prohibits imposition of a sentence that is 'grossly disproportionate' to the severity of the crime. (Ewing v. California (2003) 538 U.S. 11, 20-21, 123 S.Ct. 1179 . . . .) In a noncapital case, however, successful proportionality challenges are 'exceedingly rare.' (Ewing, supra, 538 U.S. at pp. 20-21 . . . [sentence of 25 years to life in prison for felony theft of golf clubs under California's three strikes law, with prior felonies of robbery and burglary, did not violate federal prohibition on cruel and unusual punishment].) In the rare case where gross disproportionality can be inferred from (1) the gravity of the offense and harshness of the penalty, the court will consider (2) sentences imposed for other offenses in the same jurisdiction and (3) sentences imposed for commission of the same crimes in other jurisdictions. (Harmelin v. Michigan (1991) 501 U.S. 957, 1005, 111 S.Ct. 2680 . . . [sentence of life in prison without possibility of parole, for possessing 672 grams of cocaine, was not cruel and unusual punishment].) '[I]t is only in the rare case where a comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality that the second and third criteria come into play.' (People v. Meeks (2004) 123 Cal.App.4th 695, 707 . . . , citing Harmelin v. Michigan, supra, 501 U.S. 957 at p. 1005. . . (conc. opn. of Kennedy, J.).)" (People v. Haller (2009) 174 Cal.App.4th 1080, 1087-1088.)
The length of defendant's sentence alone does not warrant relief under Harmelin. Moreover, the basis for Moten's life sentence was not merely his current offense, but his recidivist behavior, and recidivism in the commission of multiple felonies poses a manifest danger to society justifying the imposition of longer sentences for subsequent offenses. As Ewing v. California, supra, 538 U.S. 11, explained: "When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice. To the contrary, our cases establish that 'States have a valid interest in deterring and segregating habitual criminals.' [Citations.] . . . Recidivism has long been recognized as a legitimate basis for increased punishment. [Citations.]" (Id. at p. 25.) "Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons . . . . To be sure, Ewing's sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California 'was entitled to place upon [Ewing] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.' [Citation.] Ewing's is not 'the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.' [Citation.]" (Id. at pp. 29-30, fn. omitted.)
b. Discussion.
Moten's criminal history includes a sustained juvenile petition for robbery, and adult convictions for unlawful possession of a firearm and battery on a police officer. He complains that one of the bases for his Three Strikes sentence was the battery prior, which he says "only qualified as a strike because of an enhancement that was stayed during sentencing." Moten acknowledges that stays of the execution of sentence do not affect the status of prior convictions for Three Strikes purposes (§ 667, subd. (d)(1)(A)), but he argues this "creates a disproportionate and absurd result" because it ignores the mitigation of punishment he was granted in the previous case. He also complains it "means that despite only serving time for non-strike offenses, since the sentence for the enhancement was stayed, appellant is now subject to sentencing as a third-striker."
But it appears Moten did not "serve time" on one of those priors only because it had been a juvenile adjudication for robbery, which nevertheless properly constitutes a strike under the gang statute (§ 186.22, subd. (d)(3)). That the trial court in the other prior conviction case saw fit to ameliorate Moten's sentence as part of a plea bargain does not persuade us his current sentence amounts to cruel and unusual punishment. The stayed enhancement that qualified this second prior as a serious felony was for the infliction of great bodily injury (see § 1192.7, subd. (c)(8)). Hence, Moten is ignoring the fact that both of his prior strikes involved actual or threatened violence. Combining that with the extremely dangerous nature of Moten's current offense, which entailed putting a gun to the victim's head in order to carry out a robbery, we have no trouble deciding his punishment "is not grossly disproportionate to the gravity of [his] offenses. We therefore need not discuss defendant's arguments about intrastate and interstate comparisons regarding his federal claim." (People v. Haller, supra, 174 Cal.App.4th at p. 1091.)
Although not an Eighth Amendment cruel and unusual punishment case, the following comment from People v. Benson (1998) 18 Cal.4th 24, is noteworthy with regard to Moten's argument: "[T]here clearly was a rational basis upon which the electorate and the Legislature could direct the courts, in cases involving a defendant with two prior felony convictions who thereafter commits a subsequent felony, to count each prior felony conviction as a strike, in effect declining to extend the leniency previously afforded the defendant when sentence on a prior felony conviction was stayed under section 654. In the present case, defendant received the benefit of section 654 when he was sentenced for the felonies he committed in 1979; it was only when defendant reoffended after the enactment of the Three Strikes law that he faced the prolonged incarceration of which he now complains." (Id. at pp. 34-35, italics added.)
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Moten's sentence did not violate the Eighth Amendment.
4. Trial court miscalculated Moten's presentence custody credits.
Moten contends he is entitled to an additional 45 days of presentence custody credit. The Attorney General properly concedes this claim has merit. "A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered. [Citation.]" (People v. Taylor (2004) 119 Cal.App.4th 628, 647; see also People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8 ["The failure to award an adequate amount of credits is a jurisdictional error which may be raised at any time."].)
Moten was arrested on October 1, 2009, and sentenced on July 23, 2010. The trial court awarded him 295 actual days of presentence custody credit and no days for conduct credit. However, he was entitled to an actual-days award of 296 days, not 295 days. (See People v. Morgain (2009) 177 Cal.App.4th 454, 469 ["defendant is entitled to credit for the date of his arrest and the date of sentencing"]; People v. Browning (1991) 233 Cal.App.3d 1410, 1412 [day of sentencing counted for presentence custody credits even though it was only a partial day].) In addition, he was entitled to accrue 15 percent of those actual days as conduct credit under section 2933.1. Fifteen percent of 296 is 44 days, for a total of 340 days presentence custody credit. We will order the judgment modified to correct this error.
DISPOSITION
The judgment is affirmed as modified. Moten is entitled to one additional day of actual presentence custody credit and 44 days of conduct credit, for a total of 340 days of presentence custody credit. The trial court is directed to prepare and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
KITCHING, J.
ALDRICH, J.