F13 AND ECC/ DOUBLE HOMICIDE COMMITTED BY F13

[jesuschrist]

People v. Romero, 140 Cal. App. 4th 15 (Copy w/ Cite)
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THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL ROMERO, Defendant and Appellant.

B185902

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR

140 Cal. App. 4th 15; 43 Cal. Rptr. 3d 862; 2006 Cal. App. LEXIS 824; 2006 Cal. Daily Op. Service 4751; 2006 Daily Journal DAR 6819


June 1, 2006, Filed

NOTICE: CERTIFIED FOR PARTIAL PUBLICATION*


* Pursuant to California Rules of Court, rules 97(b) and 976.1, this opinion is certified for publication with the exception of parts I and II of the discussion.

SUBSEQUENT HISTORY: Time for Granting or Denying Review Extended People v. Romero, 2006 Cal. LEXIS 10087 (Cal., Aug. 24, 2006)
Review denied by People v. Romero, 2006 Cal. LEXIS 11511 (Cal., Sept. 20, 2006)

PRIOR-HISTORY: Superior Court of Los Angeles County, No. TA076708, Allen J. Webster, Judge.

COUNSEL: Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

JUDGES: Epstein, P. J., with Willhite and Hastings, JJ., concurring.

OPINION BY: Epstein

OPINION

EPSTEIN, P. J.—Emmanuel Romero was convicted of murder and attempted murder as the driver in a drive-by shooting. He contends the judgment must be reversed because of instructional errors and insufficiency of the evidence to support the criminal street gang allegation imposed pursuant to Penal Code section 186.22, subdivision (b)(1). 1 In the published portion of this opinion, we hold that the specific intent element of section 186.22, subdivision (b)(1), requiring a showing of “specific intent to promote, further, or assist in any criminal conduct by gang members,” does not require intent to further criminal conduct beyond the charged crime. In the unpublished portion of our opinion, we address the instructional errors raised by appellant and find no error. We affirm the judgment.


FOOTNOTES

1 All statutory references are to the Penal Code.



FACTUAL AND PROCEDURAL SUMMARY

On the evening of October 11, 2004, appellant picked up his friends Mario Moreno and Edgar Navarro 2 in a stolen car. Appellant and Moreno are members of the criminal street gang, Florencia 13. As he entered the car, Moreno said, “Let's go do this,” and showed appellant the large rifle he was carrying. Appellant believed Moreno meant that they should go shoot somebody. Appellant then drove the men to a liquor store and stopped the car. The store was located in territory controlled by the 89 East Coast Crips, a rival gang. Robert Tyrone King and Darrell Dennard were standing outside the store, talking and drinking beer. Moreno aimed the rifle out of the car window and fired three rounds, hitting King and Dennard in the back. Dennard died from his injuries, but King survived. Both victims were African-American. Neither was a known gang member.


FOOTNOTES

2 Navarro was killed three weeks after the shootings.



Appellant and Moreno were charged with murder and attempted murder. Firearm use and gang enhancements also were alleged. Moreno was tried separately. A jury convicted appellant of first degree murder and attempted murder, and found the allegations to be true. He was sentenced to 25 years to life for murder plus 25 years to life for the firearm enhancement, and 15 years to life for attempted murder plus 25 years to life for the firearm enhancement. The trial court stayed the gang allegations on each count.

A timely notice of appeal followed.

DISCUSSION

I, II*[NOT CERTIFIED FOR PUBLICATION]


FOOTNOTES

* See footnote, ante, page 15.



III

Appellant argues the record is insufficient to support the jury's finding that the shootings were 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.” (§ 186.22, subd. (b)(1).) He also challenges the firearm enhancements which are dependent on the gang finding pursuant to section 12022.53, subdivision (e)(1)(A). Without evidence that the victims were gang members or that anyone involved wore gang colors or used gang slogans, appellant argues the gang expert's testimony about gang culture and rivalries was not sufficient to create an inference the shootings were gang related.

In reviewing a challenge to the sufficiency of evidence, “the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” ( People v. Mincey (1992) 2 Cal.4th 408, 432 [6 Cal. Rptr. 2d 822, 827 P.2d 388], fn. omitted.) We consider whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ( People v. Gamez (1991) 235 Cal. App. 3d 957, 977 [286 Cal. Rptr. 894], disapproved on another point in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10 [59 Cal. Rptr. 2d 356, 927 P.2d 713].) To prove a gang allegation, an expert witness may testify about criminal street gangs. ( People v. Gardeley, supra, at pp. 616–618.)

Here, the gang allegation is supported by substantial evidence. Appellant does not dispute that he is a member of Florencia 13, a Latino criminal street gang. The prosecution expert, Officer Stevens, testified that Moreno also was an active member of Florencia 13. He stated that Florencia 13 and the 89 East Coast Crips, an African-American gang, were rival gangs which had been engaged in a violent war for the past three years. He explained that any Florencia 13 gang member would know that the liquor store where the shooting occurred, only 2.4 miles away from Florencia 13 territory, was situated in territory controlled by the 89 East Coast Crips.

Officer Stevens opined that the shootings were committed to benefit the gang because “there is absolutely no reason for anybody from Florence to be anywhere near that liquor store. It's a known 89 East Coast hangout. It's also a hangout for 18th Street, which [are] also bitter rivals with Florencia. Again, there would be no reason for Florencia to go to that liquor [store] unless they knew they were expecting trouble or looking for trouble.” The officer explained that whether or not the victims were gang members, a shooting of any African-American men would elevate the status of the shooters and their entire gang. Further, appellant admitted that the Latino men in his neighborhood were having problems with the African-American men. We conclude that ample evidence supports the jury's finding that the shooting was committed “for the benefit of, at the direction of, or in association with any criminal street gang.” (§ 186.22, subd. (b)(1).)

In the alternative, appellant argues that even if the crimes were committed to benefit the gang, he lacked the requisite “specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) Relying on the majority opinion in Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, appellant asserts that the statute requires a showing of intent to promote the gang's criminal activity beyond the charged crime. In Garcia, the Ninth Circuit found insufficient evidence of specific intent to promote, further, or assist in other criminal conduct by the defendant's gang. We disagree with Garcia's interpretation of the California statute, and decline to follow it. (See People v. Burnett (2003) 110 Cal.App.4th 868, 882 [2 Cal. Rptr. 3d 120] [federal authority is not binding in matters involving state law]; see also Oxborrow v. Eikenberry (9th Cir. 1989) 877 F.2d 1395, 1399 [state court interpretation of state statute binding on federal court unless interpretation is a subterfuge or untenable].) By its plain language, the statute requires a showing of specific intent to promote, further, or assist in “any criminal conduct by gang members,” rather than other criminal conduct. (§ 186.22, subd. (b)(1), italics added.)

In People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [5 Cal. Rptr. 3d 615], the defendant and two fellow gang members committed a robbery. On appeal, defendant argued that he lacked the requisite specific intent for the gang finding, because the evidence showed only that the three men belonged to the same gang. The court rejected his claim, concluding that there was sufficient evidence that defendant intended to commit the robbery in association with other gang members and that it was therefore “fairly inferable that he intended to assist criminal conduct by his fellow gang members.” ( People v. Morales, supra, at p. 1198.)

Thus, the specific intent element is satisfied if appellant had the specific intent to “promote, further, or assist” Moreno in the shootings of Dennard and King. There was ample evidence that appellant intended to commit a crime, that he intended to help Moreno commit a crime, and that he knew Moreno was a member of his gang. This evidence creates a reasonable inference that appellant possessed the specific intent to further Moreno's criminal conduct. Because we find sufficient evidence to uphold the gang enhancement, we also uphold the dependent firearm enhancement.

DISPOSITION

The judgment is affirmed*

Willhite, J., and Hastings, J., concurred.


FOOTNOTES

* Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Appellants petition for review by the Supreme Court was denied September 20, 2006, S144621.

[Tee9]

I WOULD SAY THE 89 ECC IS EXTINCT, CAUSE NOT ONLY YOU AINT HANGIN BUT THEY TREATIN YALL AND YOU WONT RETALIATE , YALL SHOULD ADD 89 ECC TO THE EXTINCT HOODS. AND SAME WITH THE 190 ECC

[pistolslanga]

I WOULD SAY THE 89 ECC IS EXTINCT, CAUSE NOT ONLY YOU AINT HANGIN BUT THEY TREATIN YALL AND YOU WONT RETALIATE , YALL SHOULD ADD 89 ECC TO THE EXTINCT HOODS. AND SAME WITH THE 190 ECC

yeah you could prolly say that, aint no G'z when they aint even retaliatin

[Black_Kingz86]

Str8 Up

[dubcity]

u niggaz is some marks , shut yo asses up, and the thread title should be f13 vs. civillians cuz they aint even hit no Coasts

nigga 89 still there and smashin on these bitch ass ese's cuzz, my EC niggaz doin it u hoe ass niggaz dont watts up in these streets

[KINGFEAR62]

It looks like there shooting at anyone that has on ghetto clothes

[Tee9]

DUMBCITY, THE 89 ECC ARE ACTIVE BUT IN SAN FRANCISCO HAHAHAHA THATS WERE THEY HAD TO HIDE TO NOT GET KILLED BY F 13 HAHAHAHAHAHAHAH HAHAHAHAHAHAHA !! YEAH SOME CIVILIANS ARE GETTIN KILLED, BUT WHAT YOU SUPPOSE ? IF YOU ARE HANGIN AND DRINKIN ON THE SAME CORNER THE 89 ECC USE TO HANG IF SOME FLORENCIAS COME HOW THEY GONNA KNOW YOU AINT A ECC OR ACTIVE THEYLL SHOOT YOUR ASS UP CAUSE YOU SHOULD HAVE KNOWN WHATS UP. GANGS DONT HAVE TO AND DONT NEED TO CHECK YOU UP, IF YOU ACT OR LOOK LIKE A RIVAL GANG MEMBER YOU GET SHOT. SO YOU ECC GROUPIE FACE THE FACTS, THE 89 ECC ARE GONE THEY HIDIN IN OTHER ECC HOODS, THE ONLY ONES ANSWERIN TO FLORENCIA IN THE ECC AT 66, 68.
FOR THE 190 ECC , IF THERE MEMBERS LIKE 2 OF THEM ARE TRYING TO GET THE BLOODS OUT OF THERE HOOD, WHAT CREDIBILITY THEY GONNA HAVE ? HOW YOU GONNA BEEF WITH CRIPS IF YOU CANT GET THE BLOODS OUT OF OUR OWN HOOD. THERE ALWAYS GONNA BE MEMBERS OF ONE CLICK, BUT ITS ABOUT HOLDIN THE STREETS U CLAIMIN, CAUSE IF THERES A 190 ECC IN OKLAHOMA AND NOBODY HANGIN AAT 190 THEN UR SHIT AINT ACTIVE

[KINGFEAR62]

Lol how can u call ur self a thug if u have to chill in another mans hood cuzz u can't hold ur own turf down that's a damn shame and what bloods are in 190 ecc hood???

[dubcity]

DUMBCITY, THE 89 ECC ARE ACTIVE BUT IN SAN FRANCISCO HAHAHAHA THATS WERE THEY HAD TO HIDE TO NOT GET KILLED BY F 13 HAHAHAHAHAHAHAH HAHAHAHAHAHAHA !! YEAH SOME CIVILIANS ARE GETTIN KILLED, BUT WHAT YOU SUPPOSE ? IF YOU ARE HANGIN AND DRINKIN ON THE SAME CORNER THE 89 ECC USE TO HANG IF SOME FLORENCIAS COME HOW THEY GONNA KNOW YOU AINT A ECC OR ACTIVE THEYLL SHOOT YOUR ASS UP CAUSE YOU SHOULD HAVE KNOWN WHATS UP. GANGS DONT HAVE TO AND DONT NEED TO CHECK YOU UP, IF YOU ACT OR LOOK LIKE A RIVAL GANG MEMBER YOU GET SHOT. SO YOU ECC GROUPIE FACE THE FACTS, THE 89 ECC ARE GONE THEY HIDIN IN OTHER ECC HOODS, THE ONLY ONES ANSWERIN TO FLORENCIA IN THE ECC AT 66, 68.
FOR THE 190 ECC , IF THERE MEMBERS LIKE 2 OF THEM ARE TRYING TO GET THE BLOODS OUT OF THERE HOOD, WHAT CREDIBILITY THEY GONNA HAVE ? HOW YOU GONNA BEEF WITH CRIPS IF YOU CANT GET THE BLOODS OUT OF OUR OWN HOOD. THERE ALWAYS GONNA BE MEMBERS OF ONE CLICK, BUT ITS ABOUT HOLDIN THE STREETS U CLAIMIN, CAUSE IF THERES A 190 ECC IN OKLAHOMA AND NOBODY HANGIN AAT 190 THEN UR SHIT AINT ACTIVE

lol @ this flower groupie

wut u call holdin down blocs? just having people posted on it? f13 is full of paisas, that area like 70% + hispanic now, obviously its gon ce Mexicans on the bloc that dont mean shit, the 89 Coasts is active the 76 is active the sixx muthafucin duece u already know they active and so is the rest of the sixx pacc, yo groupie ass dont know shit, u just another dumb Mexican woofin online, theres a million of ya'll and only a few Coast Crips and they STILL SMASH, matter fact my coast niggaz aint even trippin on the flowers, they still trippin on Broadways and Sways, :ol: shows u how weak the flowers is

[necio]

last comment shows your not really from coast , all of the coast hate florence with a passion every coast i ran into always says the same thing f*** florence

[perongregory]

he never said he was from ecc.

[dubcity]

last comment shows your not really from coast , all of the coast hate florence with a passion every coast i ran into always says the same thing f*** florence

i never said i wuz from coast, and i've bumped into a few that really didnt give a fuc about flowers, they hollared sway k and bubblegum k tho, and they wuz 76's on top of that

[tecate]

Power by numbers!

[necio]

its assumeable because your always defending them, on the blacks of course theyr gonna say sway or bg kay to another black person but theyr always worried about the florencias its because of them that they kill civilians, every time their deep and they see a mexican theyr always gonna say f florence

[dubcity]

the Mexicans is waaaaaaay deeper and the Coast is still sayin "fuc flowers"

[necio]

which means that they sweat florence more than any other hood

[dubcity]

depends on wut clic of coast u talkin about.....

[bridgelife]

F13K oN MiNE, 1st 2 190bKLoCC, CoaST 2 CoaST - six DEuCE - EAST CoaST CRips - N.H.C.