Opinion
F059958 Super. Ct. No. BF127820B
08-22-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHN RIVERA, Defendant and Appellant.
Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Leslie W. Westmoreland, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Louis P. Etcheverry, Judge.
Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Leslie W. Westmoreland, for Plaintiff and Respondent.
When he was 16 years old, John Rivera participated in a brawl with two convenience store clerks that began when Rivera's friend tried to steal beer; the brawl resulted in one of the clerks being stabbed. After Rivera was charged as an adult, a jury convicted him of: (1) assault with a deadly weapon, a knife, on Gerardo Munoz (Pen. Code, § 245, subd. (a)(1); count 2), (2) misdemeanor simple assault of Martin Seleem as a lesser included offense of the charged crime of assault with a deadly weapon (§ 241, subd. (a); count 3); (3) second-degree burglary (§ 460, subd. (b); count 4); (4) active participation in a criminal street gang (§ 186.22, subd. (a); count 6); and (5) robbery (§ 212.5, subd. (c); count 7). The jury acquitted Rivera of attempted murder (§§ 664/187, subd. (a)) and felony vandalism (§ 594, subd. (b)(1)). The jury found true allegations that Rivera personally inflicted great bodily injury in the commission of count 2 (§ 12022.7) and that he committed counts 2, 3, 4 and 7 within the meaning of the gang enhancement statute (§ 186.22, subd. (b)(1)(C)). The trial court sentenced Rivera to an aggregate prison term of 16 years, consisting of the middle term of three years on count 2 plus three years for the GBI enhancement and 10 years for the gang enhancement, and concurrent terms of one year on count 7 and three years and four months on the gang enhancement. The court imposed and stayed two-year middle terms on counts 4 and 6.
All further statutory references are to the Penal Code, unless otherwise stated.
Rivera was tried with codefendant Gabriel Hidalgo. A second codefendant, Marvin Hernandez, entered guilty pleas before jury selection.
On appeal, Rivera contends the trial court erred in admitting expert testimony, there was insufficient evidence to sustain the gang enhancement, and the court erred when it imposed the three-year GBI enhancement in addition to the section 186.22, subdivision (b)(5) gang enhancement on count 2. While we disagree with the first two contentions, we agree the court erred in imposing both the GBI and gang enhancements on count 2. We remand for resentencing, but otherwise affirm the judgment.
FACTUAL BACKGROUND
At approximately 1:15 a.m. on May 9, 2009, a large group of young men arrived at a Bakersfield convenience store and gas station in three vehicles. Martin Seleem and Gerard Munoz were working at the store that night. Seleem estimated there were between 15 and 25 people in the group. One of the young men, later identified as Hidalgo and who appeared to Seleem to be younger than 18 years old, entered the store and headed for the beer section. As Hidalgo headed towards the store entrance with a case of beer, Seleem tried to block his exit. During the ensuing struggle over the beer, Hidalgo fell to the floor. Another man standing behind Hidalgo at the store's entrance, later identified as Rivera, threw a can of something at Seleem, which hit Seleem in the head; Seleem believed it was a beer can. During the melee, Munoz jumped over the counter and "stomped on" Hidalgo.
By this time, four young men were at the store's entrance. Seleem ran to get a broom and used it to force the young men out of the store. The two clerks ran after the young men and Munoz briefly fought with five or six of them. While swinging a three-foot stick in an effort to get them away from the store, Munoz hit one of the young men so hard the stick broke. The clerks ran back inside the store. Munoz was laughing as he tried to hold the door shut to keep the young men out; when the young men kicked the door and threw things at it, Munoz flipped them off. One of the group outside the store picked up something and threw it into the store's glass window, where the hard liquor was kept, shattering the window. A young man reached through the broken window and took two bottles of brandy. Seleem went behind the counter and grabbed a two to three foot long stick, while Munoz ran after the young men.
The young men ran to their cars and started to drive off. Munoz picked up a bottle of brandy that was on the ground outside the store and threw it at one of their vehicles, a white truck which was leaving the parking lot, in an attempt to leave a "distinctive mark" on it. As he threw the bottle, he slipped and fell on the pavement. A group of eight to 10 men began beating Munoz. Seleem went outside to look for Munoz and saw him on the ground with 10 to 15 guys "hitting him with everything." When Seleem tried to help Munoz, two men stood in front of him; one of the men held a knife in front of Seleem's face. Seleem said "it is okay, stop, stop." Munoz somehow managed to get up.
The group sped away while the clerks ran back inside the store. Blood was running from the top of Munoz's head to his face and down his back; he had a three-inch cut above the back left side of his rib cage and had been stabbed in the head and back. Munoz began gasping for air. He was hospitalized for eight days; staples were used to close his wounds and he had a chest tube.
Bakersfield Police Officer Glenn Phippen and his partner Officer Pat Mara gathered information on the participants and the vehicles by viewing videos taken by the store's video surveillance system. On their way to the hospital to check on Munoz, they saw a white truck identical to the one in the video in the parking lot of another convenience store. Mara detained both Hidalgo and Rivera after they came out of the store, while Phippen detained two or three juveniles who were seated in the truck's back seat. In the truck, Phippen found a bloody white t-shirt, with the blood still moist, and a wig that matched one seen in the surveillance video.
While en route to the police department, Rivera agreed to speak with Mara after being given a Miranda warning. Rivera admitted being at the convenience store when someone tried to steal something and that the clerks "started going crazy" and were hitting him with a stick. Rivera admitted pulling out a knife, but claimed he put it away because he decided not to use it. After others broke the store's window, Rivera took a couple liquor bottles since the clerks had assaulted him, and ran and got into his friend's truck. Rivera admitted assaulting the clerk after the clerk ran out and "hit or kicked" the truck. He told Mara, "I wasn't just going to let him fuck up my homeboy's truck, so I got out and started whipping his ass." Rivera denied stabbing anyone and claimed he threw the knife out of the truck's window after they left the scene. Mara noted Rivera was bleeding from his right hand and had a one to two-inch long cut somewhere on his palm.
Miranda v. Arizona (1966) 384 U.S. 436.
After being transported to the police station, Hidalgo and Rivera were taken to the hospital to be cleared, as they appeared to be under the influence of alcohol. While sitting in the emergency room, Mara heard Rivera and Hidalgo laughing about the broken windows and how Hidalgo fell down when he tried to run out of the store with the beer. Rivera said, "I clocked that mother fucker." Hidalgo told Rivera, "I thought that that little fucker wasn't going to let go of your leg in the road. I even kicked him in the head." Rivera replied, "yeah, that fucker held on until I stuck his punk ass." After a nurse told Mara that Munoz was in surgery, Rivera said, "I hope that fucker dies."
Gang Evidence
Officer Joseph M. Galland, an expert on graffiti and how it relates to gang activity within graffiti vandal gangs, testified about the TNK2K graffiti vandal gang. TNK2K is a combination of two previously separate graffiti vandal gangs, TNK, which can stand for The Notorious Kriminals or Notorious Kids, and K2K, which can stand for Kids to King or Known to Knock. The gang uses "TNK2K" and "TNK2" interchangeably. TNK2K has rival gangs, including Money Over Bitches (MOB), Young Assassins Krew (YAK) and Twins Wrecking Krew or The West Killers (TWC). Rivalries result in fights, which could range from fistfights to using baseball bats to using guns. Three or four hand signs are associated with TNK2K, one of which is the letter "T" made with either one or two hands. The surveillance video of the incident shows Hidalgo making the gang's single-handed "T" sign just after Munoz "flips off the juveniles."
Galland had contact with Rivera at least three times in the past. In one encounter, Rivera told Galland his moniker was "Task." Galland testified about photographs of (1) the word "Task" in blue spray paint, with Rivera's signature directly below it indicating he was responsible for the graffiti, which Galland watched him sign; and (2) the words "TNK2, Task" in black spray paint, with words to the left of "TNK2" and Hidalgo's moniker "Locced," and also in black spray paint the word "Dips" which is Jose Gomez, Jr.'s moniker. A female TNK2K member, Amy Castillo, identified Rivera in a December 2009 street check report as a shot caller for the gang, meaning he was a senior member who gives orders. Galland testified to other photographs depicting "Task," "TNK2," other gang monikers, and Task and TNK2 written over a rival gang's graffiti, which is a sign of dishonor or disrespect. In a contact with Galland, another TNK2K member, Corey Brewer, identified Rivera by his gang moniker of Task and Hidalgo by his moniker of Locced.
A number of police reports that Galland reviewed involved Rivera. One report stated that on May 2, 2009, unknown suspects shot at Rivera's house ostensibly in retaliation for a shooting Rivera had committed. An April 2009 report showed that Rivera had shot Edward Ceballos, a member of the rival gang Bomb Squad Krew (BSK) whose moniker was "Beast," in the neck. Before the shooting Ceballos had been arguing with a TNK2K member; "they were basically throwing up threats back and forth." In another report from the same day, Galland had determined that Rivera had fired a single shot either into the air or at a crowd of rival gang members while at a convenience store's parking lot.
Further reports involving TNK2K and Rivera described incidents of auto vandalism, the presence of a gun at a TNK2K group fight, graffiti in progress near Rivera's house, other group fights including one where a TNK2K member tried to attack with a knife a security officer who was trying to break up the fight, and various interviews of TNK2K and rival gang members wherein Rivera is identified as Task of TNK2K, which he admitted, and other members are identified by their monikers. Other reports disclosed an unsent letter Rivera had written Hidalgo admitting involvement in several crimes and that officers had responded to a fight call at which Rivera was intoxicated, had a knife, and had to be forcibly taken into custody.
Galland also testified to eight significant reports involving Hidalgo and other TNK2K gang members. Galland testified regarding several MySpace pages that depict Rivera, Hidalgo and other TNK2K members with their monikers, some of whom were making a "T" or "K" sign. One photo shows Hidalgo making a hand sign for "T," just as he did during the incident.
Galland opined that both Rivera and Hidalgo were active members of the TNK2K graffiti vandal gang. He based his opinion regarding Rivera on street checks on Rivera, prior police reports, contacts and conversations with Rivera, Rivera's personal admissions that he was a TNK2K gang member and that his moniker was "Task," and continued criminal conduct benefitting the gang.
Galland had investigated TNK2K for such crimes as graffiti, assaults with deadly weapons, shooting at inhabited dwellings, witness intimidation, robberies and thefts. The gang's primary activities also include fighting and partying. Galland had seen TNK2K graffiti in the area of the convenience store, which is within the gang's general area of activity. During a contact with TNK2K member Isaac Flores, Flores told Galland that TNK2K's primary activities involve graffiti vandalism, fighting, getting drunk and partying. Flores liked to fight and preferred weaponless combat, but the gang used such weapons as baseball bats, sticks, clubs and pipes in fights. Flores also told Officer Galland that "backing up" other TNK2K members, i.e. coming to their aid, was one of the most important things a TNK2K member could do, and on a scale of one to ten, it would be a nine or nine and a half.
Galland testified about two predicate crimes. The first occurred in late 2008, when TNK2K member Luis Reyes fired two or three shots at the house of Michael Lozano, a member of the rival gang MOB whose moniker was Freeze. When Lozano's father opened the front door, Reyes fired another round toward the open door. Reyes was convicted of assault with a deadly weapon and participation in a criminal street gang. Galland opined that Reyes was an active criminal street gang member at the time and committed the offense for TNK2K's benefit, namely to instill fear into rival gangs, which is a primary activity and outcome for the graffiti vandal gang.
In the second crime, Romero Vasquez and a large group of juveniles approached a clerk in a convenience store's parking lot, told him he should not call the cops on their friends, and surrounded him, some with clenched fists. Believing the group was going to assault him, the clerk knocked on a store window to get the attention of another clerk inside the store. After the other clerk looked outside while holding a phone in his hand, the group walked away, telling him he should not be calling the cops. About two hours later, Vasquez went into the store to apologize and then left. The clerk followed him outside and saw Hidalgo jumping up and down on the hood of his car, kicking the windshield. Vasquez ran over to the car and joined him. As the group left, they yelled back at him, "that's what you get for calling the cops." Vasquez was convicted of intimidating a witness. Galland opined Vasquez was an active member of TNK2K at the time of the incident based on graffiti Galland had seen that was attributable to Vasquez, his admission of TNK2K membership, and the nature of the crimes. Galland believed the crime was committed for TNK2K's benefit because it served the gang's primary objective of intimidating the general public into not wanting to cooperate with law enforcement, thereby giving them more power and freedom to act as they choose.
Galland opined that members of TNK2K are engaged in an ongoing pattern of criminal conduct, based on the large amount of graffiti he had seen in the area since 2007, images posted on MySpace, interviews of TNK2K and rival gang members, and offenses of which TNK2K members had been convicted.
Photographs of Rivera and Hidalgo taken the night of the incident showed them wearing ECKO Unlimited shirts, which Galland said taggers often wore since the owner and founder of the company was a self-proclaimed graffiti guru. Galland also testified that when he returned to the convenience store for a follow-up investigation on May 19, 2009, he noticed the words "Anex, TNK2" painted on the northeast corner of a fence. Anex was the moniker of TNK2K gang member Hernandez, who Galland observed on one of the store's surveillance videos of the incident. When Galland contacted
Hernandez later that day, he saw "TNK2K" written on the dirty windshield of a car parked on the front lawn of Hernandez's house. Based on Galland's review of the store's videos, he believed that Hernandez sprayed his name on the fence on the day in question, although he did not see Hernandez with a spray can. Galland was aware of three beer runs TNK2K had been involved in before this one; one involved Hernandez and the other involved Hidalgo.
In the form of a hypothetical, the prosecutor asked Galland whether the actions of a group of individuals who drove to the convenience store, got out of the car, were seen for a short period of time in the parking lot before one of those individuals, who is a known member of a gang TNK2K, goes into the store, takes a case of beer, when he attempts to leave the store a clerk tries to stop him, when the clerk does that, other individuals with the known TNK2K member begin to assault the clerk by hitting him and throwing a can of beer at him, after the clerks chase the people out of the store the group breaks the store's windows, the clerk follows the individuals out to the street and throws a brandy bottle, breaking it against the truck, the individuals then exit the truck, assault the clerk, and stab the clerk in the side, were for the benefit of, in furtherance of or in association with a criminal street gang TNK2K. Over defense objection, Galland testified that they were.
Galland explained the crimes benefitted TNK2K by allowing them to obtain beer they were not otherwise legally allowed to obtain so they could continue the party lifestyle, which is one of the three things in which the gang was "hugely interested." Galland opined that everything that occurred after that served to further the gang and enhance it, as the assault on the clerks served to intimidate them and anyone they talked to from further action, and coming to the aid of other group members was indicative of the way the gang operates. Moreover, it is very important to graffiti vandal gangs that their reputation is maintained because the taggers seek notoriety.
In another hypothetical, the prosecutor asked how breaking the window to allow individuals from the gang to grab items of alcohol specifically benefitted TNK2K. Over defense objection, Galland responded that it helped the gang obtain alcohol, served to intimidate the clerks, and increased their reputation, which is a huge motivation in a graffiti vandal gang. Citing to another portion of the first hypothetical, the prosecutor asked how assaulting a clerk who throws a brandy bottle at a truck, breaking it, and eventually stabbing the clerk benefits TNK2K. Galland answered that it served to intimidate the clerk and members of the general public who witnessed the incident from further action or reporting crimes committed by the gang and enhances the gang's reputation.
In a final hypothetical, the prosecutor asked whether the crime was in association with TNK2K if a known TNK2K member enters the store to take the beer, another known TNK2K member assaults a clerk, and a third known TNK2K member throws a planter at a door. Again over defense objection, Galland responded in the affirmative "because there are at least three members of that graffiti vandal gang present and participating in the event."
DISCUSSION
The Gang Enhancements
Rivera contends the jury's findings on the gang enhancements must be reversed because (1) the trial court erred in admitting Galland's opinion in response to an improper hypothetical, and (2) the evidence was insufficient to support the enhancements. While Rivera addresses these contentions in separate sections of his appellate briefs, since his arguments are interconnected, we will address both of them here.
We begin with the hypothetical. A jury may rely on expert testimony about gang culture and habits when reaching a verdict on gang-related offenses or findings on gang enhancement allegations. (Evid. Code, §§ 720, subd. (a), 801, subd. (a); see People v. Gardeley (1996) 14 Cal.4th 605, 620 (Gardeley); People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) Generally, an expert may give opinion testimony based on hypothetical questions that are rooted in the evidentiary facts. (Gardeley, supra, 14 Cal.4th at p. 618.) An expert may not testify on the subjective knowledge and intent of a specific individual. (People v. Gonzalez (2006) 38 Cal.4th 932, 946 (Gonzalez); People v. Killebrew (2002) 103 Cal.App.4th 644, 658 (Killebrew).)A trial court's admission of expert testimony is reviewed for abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45.)
The issue of what constitutes an appropriate hypothetical that may be posed to a gang expert is currently before the California Supreme Court in People v. Vang, (review granted July 8, 2010, S184212).
Rivera contends Galland's expert opinion "crossed the line" between admissible and inadmissible gang expert testimony because it was given in response to a hypothetical that "was not a 'hypothetical' at all, but rather a transparent recitation of what had allegedly transpired and captured on surveillance videos." According to Rivera, the hypothetical's facts could lead a jury to believe Galland "was expressing his opinion on these specific defendants' intent rather than gang members in general when confronted with a specific action." Rivera asserts Galland took over the jury's responsibility of determining the factual questions presented because his opinion that the charged acts were committed for the gang's benefit was really an opinion about what the defendants were thinking.
While an expert is not permitted to testify about a defendant's subjective knowledge and intent, we disagree with Rivera's argument that the prosecutor's hypothetical questions invited Galland to offer an opinion that led the jury to believe he was expressing an opinion about Rivera's intentions. A similar argument was considered, and rejected, by our Supreme Court in People v. Ward (2005) 36 Cal.4th 186 (Ward). In Ward, the defendant argued that because two gang experts answered fact-specific hypothetical questions, their answers were impermissible opinions about the defendant's intent. (Id. at p. 209.) The court concluded, as we do here, that "[t]he expert[ ] did not render an impermissible opinion as to defendant's actual intent; rather, [he] properly testified as to defendant's motivations for his actions." (Ibid.)
Rivera apparently reasons that because the hypothetical questions posed to Galland referred to known members of TNK2K taking various actions that mirrored exactly the events testified to and depicted on the surveillance videos, they were not proper hypothetical questions since they focused on the specific defendants as opposed to hypothetical gang members. Although it is true that "there is a difference between testifying about specific persons and about hypothetical persons" (Gonzalez, supra, 38 Cal.4th at p. 946, fn. 3), we do not believe the questions posed to Galland were improper. "'Generally, an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth."'" (Id. at p. 946.) Here, Galland did not offer an opinion as to whether any particular defendant committed the charged crimes for the benefit of the TNK2K graffiti vandal gang. Instead, he explained in general terms how the crimes would benefit the gang. The questions clearly were hypothetical ones and Galland was not asked to opine about Rivera's particular mental state at the time of the crimes.
For this reason, Killebrew, supra, 103 Cal.App.4th 644, upon which Rivera relies, is distinguishable. There, the gang expert specifically "informed the jury of his belief of the suspects' knowledge and intent on the night in question" (id. at p. 658), something that Galland did not do here. Instead, Galland testified, based on his training and experience, that members of TNK2K generally are interested in obtaining beer to maintain the gang's party lifestyle, the assaults served to maintain the gang's reputation, which is important to graffiti vandal gangs in general, and to intimidate both the clerks and the public from further action or reporting crimes.
We note that "'[t]here is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.'" (People v. Valdez (1997) 58 Cal.App.4th 494, 507 [no error to permit expert testimony regarding whether the defendant acted for benefit of a street gang, an ultimate factual issue for jury to decide]; People v. Garcia (2007) 153 Cal.App.4th 1499, 1513-1514 [permissible for expert to testify, in response to hypothetical question, that a crime under circumstances described was committed for benefit of street gang, the ultimate issue of case].) Here, Galland's testimony about why gang members would be motivated to steal alcohol, break store windows, assault store clerks and stab one of them was "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact" (Evid. Code, § 801, subd. (a)) and "was not tantamount to expressing an opinion as to defendant's guilt." (Ward, supra, 36 Cal.4th at p. 210.)
Rivera also contends there is no factual foundation for Galland's opinion that minors who belong to a "tagging crew" who obtain beer to party are benefitting a juvenile graffiti gang. Galland, however, testified that TNK2K member Flores told him that one of the primary activities of the gang was getting drunk and partying. In addition, one of the police reports Galland reviewed showed that officers responded to a fight call involving Rivera and a member of the Colonia Bakers criminal street gang, whose members had partied with TNK2K members, where Rivera was drunk and holding a knife, and had to be taken into custody forcibly. Galland pointed out that this incident showed the gang's nature of partying and getting drunk. Thus, there was evidence, apart from Galland's opinion, that the gang was involved in drinking and partying.
Since the trial court did not err in admitting Galland's testimony in response to the prosecutor's hypothetical questions, Rivera's claims that the admission of this evidence violated his Fifth, Sixth and Fourteenth Amendment rights under the United States Constitution and analogous provisions of the California Constitution, as well as his due process right to a fair trial, his rights to present an unimpeded defense and a trial free from improper lessening of the prosecutions' burden of proof, and a reliable and non-arbitrary determination of guilt in violation of his rights under federal and state constitutional provisions, are without merit.
We turn next to Rivera's claim that there was insufficient evidence that the crimes were committed for TNK2K's benefit. Section 186.22, subdivision (b)(1) imposes additional punishment on any person who is "convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang ...." Our duty on a sufficiency of the evidence challenge in a criminal street gang prosecution, as in any other, is not only to "'"examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - evidence that is reasonable, credible and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt"'" but also to "'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.) Only by a clear showing that "'"on no hypothesis whatever is there sufficient substantial evidence to support the verdict"'" will a conviction be reversed. (Ibid.)The same showing is necessary even if the conviction is based largely on circumstantial evidence. (Ibid.)
The record supports a finding that Rivera committed the assaults on Seleem and Munoz, as well as the burglary and robbery, for the benefit of a criminal street gang. Galland testified that each of these crimes benefitted TNK2K as they allowed the gang to continue its party lifestyle, intimidated the clerks and the public from taking further action or calling police so the gang could operate freely, and maintained the gang's reputation. Galland also explained that coming to the aid of fellow gang members was very important to the gang.
Aside from Galland's testimony, there was sufficient evidence to show Rivera's crimes were committed for the benefit of the gang. Rivera threw a beer can at Seleem when Seleem tried to prevent Hidalgo from leaving the store with the beer. After the clerks returned to the store the first time, the group attacks the store's doors. When Munoz flips the group off, Hidalgo responds by flashing the "T" hand sign. The group attacked Munoz in concert because of the affront of the bottle hitting the truck. Rivera warned Seleem off with a knife to prevent him from stopping the attack on Munoz, and they fled as a group.
Moreover, a jury reasonably could infer from Rivera's and Hidalgo's admissions at the hospital that they acted in concert to back each other up, as Rivera admitted he "wasn't going to let him fuck up my homeboys' truck," so he started "whipping his ass," and Hidalgo stated he thought Munoz "wasn't going to let go of your leg in the road," so he "kicked him in the head."
Most importantly, Rivera was in the presence of at least two other TNK2K gang members when he committed the crimes and with at least one member when he was arrested. The evidence of Rivera's TNK2K gang association is sufficient to convince a reasonable jury that the crimes were committed for the gang's benefit. (People v. Vazquez (2009) 178 Cal.App.4th 347, 353-354.)
The cases upon which Rivera relies are all distinguishable. In People v. Ochoa (2009) 179 Cal.App.4th 650, the court reversed because, although the expert testified the carjacking could benefit defendant's gang in a number of ways, nothing in the circumstances of the crime supported the expert's inference that the crimes were gang related. (Id. at pp. 661-662) In contrast here, Galland's testimony that the crimes actually benefitted TNK2K, e.g., the testimony that "reputation is a huge part of what they are about, so no affront to their reputation can go unchallenged," was rooted in the evidence of the group assault on Munoz after he hit the white truck with the brandy bottle. Reversal occurred in People v. Ramon (2009) 175 Cal.App.4th 843 because expert testimony about a possible reason for committing a crime was not sufficient to support the enhancement without some facts from which the expert could discern whether the defendants were acting for the gang's benefit. (Id. at p. 851.) Here, however, as summarized above, there were facts to show that Rivera was acting for the gang's benefit when he committed the crimes. Finally, this court reversed in In re Frank S. (2006) 141 Cal.App.4th 1192, after we concluded crimes may not be found to be gang related based solely on a perpetrator's criminal history and gang affiliations; instead, the crime must have some connection to the gang's activities. (Id. at p. 1199.) Here, however, there is abundant evidence identifying Rivera and Hidalgo as gang members who brazenly committed the crimes out in the open, gaining notoriety and instilling fear in the general public.
Rivera cites other evidence which the jury could have accepted in determining the crimes were not gang related. For example, he points out that the clerks were not frightened by the gang since they lashed out at the young men, the gang had no colors or common tattoos, the evidence did not support an inference that the "T" Hidalgo flashed was not an actual gang sign communique, and there was no evidence apart from Galland's opinion that the graffiti on the convenience store's fence was made by the group that night. In determining the sufficiency of the evidence on appeal, it does not matter that the behavior of Rivera and his companions reasonably could be reconciled with a finding that the crimes were not committed for the benefit of a gang. The question for us is not whether the jury reasonably could have reached a different conclusion; rather, it is whether any reasonable jury could have reached the conclusion this jury did. (People v. Redmond (1969) 71 Cal.2d 745, 755.) The answer to that question is "yes ."
The Sentence on the GBI Enhancement Must Be Vacated
Rivera contends, the Attorney General concedes, and we agree that the trial court erred in imposing both the great bodily injury enhancement and the gang enhancement with respect to Rivera's adjudication of assault with a deadly weapon.
Section 1170.1, subdivision (g), provides: "When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm."
The court in People v. Gonzalez (2009) 178 Cal.App.4th 1325, 1327-1328, concluded that the imposition of a three-year great bodily injury enhancement and a 10-year gang enhancement violates subdivision (g) of section 1170.1. In so concluding, the court relied on People v. Rodriguez (2009) 47 Cal.4th 501, 508-509, in which our Supreme Court held that the similar provision of subdivision (f) of section 1170.1, which addresses multiple punishments for using a dangerous or deadly weapon, prevented the imposition of two enhancements.
In Rodriguez, the trial court imposed three sentences stemming from three separate assaults, with two firearm enhancements imposed on each sentence. Under those circumstances, remand was appropriate to allow the trial court to restructure its sentencing choices. (Rodriguez, supra, 47 Cal.4th at p. 509.) Contrary to Rivera's assertion, remand is unnecessary here, as there is no action to be taken by the court, other than the clear mandate of section 1170.1, subdivision (g), that the greater enhancement be imposed. Accordingly, we order the GBI enhancement stricken.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to strike the section 12022.7 great bodily injury enhancement. A certified copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
Gomes, Acting P.J.
WE CONCUR:
Poochigian, J.
Franson, J.