PEOPLE v. ZERMENO

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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Javier Francisco ZERMENO, Defendant and Appellant.

No. B108578.

Decided: February 17, 1998

Marcia C. Levine, under appointment by the Court of Appeal, Truckee, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Peggie Bradford, Deputy Attorney General, for Plaintiff and Respondent.

A gang enhancement requires a finding of a “pattern of criminal gang activity” as defined in Penal Code section 186.22, subdivision (e).1  Here we hold that two offenses requisite for a finding of a “pattern of criminal gang activity” to support a gang enhancement can be shown solely by proof of the currently charged offense and by proof that another aided and abetted in the commission of that offense.

The statute is designed to prevent intensified violence.   Failing prevention, the statute is designed to increase punishment.

After a jury trial Zermeno was convicted of assault with a deadly weapon. (§ 245, subd. (a)(1).)   The jury also found true that the offense was committed for the benefit of and in association with a criminal street gang. (§ 186.22)

Zermeno challenges the sufficiency of the evidence to support the gang enhancement.   We affirm.

FACTS

Enrique Garcia and two friends drove from Lompoc to Santa Barbara to road test a rebuilt engine.   Two other friends followed in a separate car.   They arrived at State Street late in the evening.

Javier Francisco Zermeno was also on State Street at the same time.   Zermeno was driving a van.   Ramon Tadeo was his passenger.

Garcia and his friends stopped their cars on State Street to discuss returning home.   The van containing Zermeno and Tadeo stopped in the middle of the street.   Both Zermeno and Tadeo got out of the van.   Tadeo went to the car containing Garcia's friends and asked where they were from.   One of them responded, “We're from nowhere.”

Zermeno went to Garcia's car and asked where they were from.   Garcia and his passenger got out of the car.   Garcia asked Zermeno, “What's going on [?]”  Zermeno had a liquor bottle in his right hand.

When Zermeno raised the bottle, Garcia ducked and put his arm over his head.   Garcia's arm deflected part of the blow, but the bottle hit him on the head.   The bottle fell from Zermeno's hand and broke on the ground.   Zermeno then began swinging his fists at Garcia and Garcia began swinging back.

In the meantime, Tadeo blocked Garcia's friends from coming to his assistance.   Tadeo told Garcia's friends, “Just let them fight one-on-one, let them fight.”

Police officers were driving in an unmarked van when they noticed the fight.   When they arrived at the scene, Zermeno and Tadeo ran away.   The officers saw Zermeno hiding in some bushes and arrested him.

Sergeant Edward Szeyller of the Santa Barbara Police Department testified at the trial as an expert in street gangs.   He said both Zermeno and Tadeo were members of the Carpas gang from Carpinteria.   Zermeno had “Carpas” tattooed across his stomach.   Garcia and his friends were not gang members, but Szeyller testified that gangs often mistakenly assume others are members of rival gangs.   Szeyller believed the attack was in retaliation for an incident in which Zermeno's face was slashed by a member of a rival gang.

Szeyller testified that Tadeo's actions represented the “classic way” in which things occur in a gang related incident.   Tadeo's job was to protect Zermeno by keeping others from coming to the assistance of the victim.

DISCUSSION

Section 186.22, subdivision (b)(1) provides for a sentence enhancement for 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․”

A criminal street gang is defined in subdivision (f) as “any ongoing organization, association, or group of three or more persons ․ whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”

A pattern of criminal gang activity is defined in subdivision (e) as the commission of two or more enumerated offenses “committed on separate occasions, or by two or more persons․”   Among the offenses enumerated in subdivision (e) is assault with a deadly weapon.

I

 The Attorney General offers, as the two qualifying offenses, the assault with a deadly weapon of which Zermeno was convicted in this case and Tadeo's aiding and abetting in the commission of the assault.

The question whether a current offense can be used to show a pattern of criminal gang activity has recently been decided by our Supreme Court in People v. Loeun (1997) 17 Cal.4th 1, 69 Cal.Rptr.2d 776, 947 P.2d 1313. Loeun held that a pattern of criminal gang activity can be shown by the charged offense and proof of another offense committed by a fellow gang member on the same occasion.

No case cited by either party, however, has considered whether the current offense and aiding and abetting in that offense can constitute the two requisite offenses.   Zermeno argues that the assault and aiding and abetting in the assault constitute only one offense.

We disagree with Zermeno.   Here, there were two different acts by two actors, each of whom exercised his own volition.   Moreover, each actor committed a criminal offense for which he could be separately charged, tried and convicted.   We conclude that Zermeno and Tadeo each committed a criminal offense and that both offenses constitute the two offenses necessary to show a “pattern of criminal gang activity.”

Zermeno contends that due process is implicated if both offenses can occur during a single incident that gives rise to the current charges.   His theory is that the defendant has “no time to realize he or she is deciding to act to benefit a criminal street gang, because the gang is created in the moment the defendants are committing the offense that establishes the ‘pattern’ element.”

This reasoning was rejected in Loeun.  “Nothing in the statutory scheme suggests that the Legislature intended that the prosecution could prove this ‘pattern’ only if it could show that a defendant had knowledge of prior crimes committed by fellow gang members.”  (People v. Loeun, supra, 17 Cal.4th at p. 10, 69 Cal.Rptr.2d 776, 947 P.2d 1313.) Moreover, Loeun noted, “[t]he Legislature's use of the present tense ‘engage in’ indicates its intent that instances of current criminal conduct can satisfy the statutory requirement for a ‘pattern of criminal gang activity.’ ”  (Id., at pp. 10-11, 69 Cal.Rptr.2d 776, 947 P.2d 1313.)

Even assuming there was no criminal street gang until Zermeno's assault was complete, it is unclear why he did not realize prior to the assault that he was subjecting himself to liability for a gang enhancement.   Zermeno deliberately initiated the assault for a gang-related purpose.   In addition, he could have had little doubt prior to the assault that Tadeo, another Carpas gang member, would aid him.   In fact, Tadeo issued his own challenge to friends of Garcia.   Zermeno had ample time prior to the assault to realize that his decision to act could subject him to a gang enhancement.

Finally, Zermeno argues that allowing a pattern to be shown from a single incident of criminal conduct does not match the definition of “pattern” used in other statutes and contexts.   But the Legislature has defined “pattern of criminal gang activity” for the purposes of a gang enhancement in subdivision (e) of section 186.22.   That the meaning of “pattern” as used in other statutes and contexts may differ from the definition provided in subdivision (e) is irrelevant.

 The definition includes two or more offenses “committed on separate occasions, or by two or more persons.”  (§ 186.22, subd. (e), italics added.)   The use of the disjunctive shows the pattern can be proved by crimes committed by two or more persons on the same occasion.  (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003, 279 Cal.Rptr. 236.)   As Loeun points out, “the prosecution can establish the requisite ‘pattern’ exclusively through evidence of crimes committed contemporaneously with the charged incident.”   (People v. Loeun, supra, 17 Cal.4th at p. 11, 69 Cal.Rptr.2d 776, 947 P.2d 1313.) There is no reason why a pattern cannot be established under this definition by a single incident where one person commits an offense directly and another person commits an offense by aiding and abetting.   The violence is heightened.

II

In view of our discussion, we must also reject Zermeno's contention that the jury was not properly instructed on the two offenses required by subdivision (e).

The trial court instructed the jury, in part, that to prove the gang enhancement allegation it must be established beyond a reasonable doubt that, “The assault with a deadly weapon charge was done by two or more persons connected with the gang one of whom aided and abetted a member of that gang in committing the crime.”   The jury was also instructed on aiding and abetting.

The instructions adequately inform the jury of the necessary findings relating to the two offenses under the facts of the case.

The judgment is affirmed.

FOOTNOTES

1.   All statutory references are to this code.

GILBERT, Acting Presiding Justice.

YEGAN and COFFEE, JJ., concur.

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