PEOPLE v. MORENO

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Jorge H. MORENO, Defendant and Appellant.

No. G021416.

Decided: December 01, 1998

Harvey L. Goldhammer, under appointment by the Court of Appeal, Glendale, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Keith I. Motley and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Jorge H. Moreno appeals his convictions for robbery, grand theft person, and street gang terrorism contending:  (1) insufficient evidence supported the street terrorism conviction;  (2) the trial court failed to adequately instruct the jury sua sponte on active participation in a street gang;  (3) his prior juvenile adjudication did not qualify as a strike under the Three Strikes law;  (4) using the prior juvenile adjudication as a strike violated his right to a jury trial;  and (5) the trial court improperly denied him 10 days of pre-sentence credit.   We affirm as modified.

Moreno and his brother David drove up to Gerardo Medina and Pedro Blancas, who were talking on the sidewalk, and approached them.   David grabbed Blancas by the collar and took his necklace, watch, and some money from his pocket.   Moreno took Medina's wallet from his pocket and removed $12.   Medina did not resist because he was afraid Moreno had a weapon.

The Morenos left but soon returned after Blancas and Medina told a parking patrol officer about the robberies.   The car stopped and Moreno shouted in Spanish it would be worse for Blancas and Medina if they told the police.   A short while later, the police located the Morenos and apprehended them.

Officer Jeffrey Launi testified as a gang expert.   He opined Moreno and David were Santa Nita gang members who committed the robbery for the gang's benefit.   He based his opinion Moreno was a Santa Nita member on a background investigation and several tattoos Moreno had that contained the gang name, initials, or logos.   He believed the robbery was committed for the gang's benefit because it occurred in Santa Nita territory, street robberies instill fear and intimidation in the victims, and Moreno and David returned to the crime scene to threaten the victims if they told the police.

I

Moreno contends insufficient evidence supported the street terrorism conviction.   He was prosecuted under Penal Code section 186.22, subdivision (a) 1 which reads, “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished․”

The parties stipulated Santa Nita is a criminal street gang, and Moreno does not challenge the sufficiency of the evidence to show he furthered and assisted in the robbery with David, a Santa Nita member.   He asserts, however, the evidence did not show he actively participated in the Santa Nita gang, nor that he had knowledge Santa Nita gang members engaged in a pattern of criminal gang activity.

When the sufficiency of the evidence is challenged, the court is not required to “ ‘ “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.”  [Citation.]   Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’  [Citation.]”  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.)

 “In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court ‘must ․ presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’  [Citations.]   The court does not, however, limit its review to the evidence favorable to the respondent․  ‘[O]ur task ․ is twofold.   First, we must resolve the issue in the light of the whole record i.e., the entire picture of the defendant put before the jury and may not limit our appraisal to isolated bits of evidence selected by the respondent.   Second, we must judge whether the evidence of each of the essential elements ․ is substantial;  it is not enough for the respondent simply to point to “some” evidence supporting the finding, for “[n]ot every surface conflict of evidence remains substantial in the light of other facts.” ’  [Citation.]”  (People v. Johnson, supra, 26 Cal.3d at pp. 576-577, 162 Cal.Rptr. 431, 606 P.2d 738.)

 Thus, we ask whether, based on all of the evidence, a rational juror could have found Moreno was currently an active Santa Nita member when he committed the robbery, and knew Santa Nita's members engaged in a pattern of criminal activity.   Officer Launi opined, without objection, Moreno was a Santa Nita member when the robbery occurred.   The testimony of one expert witness, if believed, is sufficient to prove a fact.  (West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 859, 220 Cal.Rptr. 437.)   Moreno urges Launi based his opinion solely on his tattoos, but that is not so.   Launi also considered background information on Moreno and the number of police contacts he had, some of which were apparently reasonably recent.2

Beyond Launi's opinion, the jury may have considered Moreno's participation in the current offense to infer he was an active gang member.3  It might also have inferred that Moreno's numerous tattoos showed his commitment to the gang.

Moreno points out Launi never spoke to him, the victims did not say they recognized him as a gang member, and Launi acknowledged that even though Moreno had tattoos, he could have been expelled from the gang.   These were factors for the jury to consider and it obviously rejected them.   They do not compel a conclusion the evidence of active gang membership was insufficient as a matter of law.

Moreno also asserts the evidence did not show he knew Santa Nita members engaged in or had engaged in a pattern of criminal gang activity.   True, there was no direct evidence he knew, but the circumstantial evidence was adequate.   Moreno stipulated Santa Nita was a criminal street gang.   Although the jury was not instructed on what constitutes a criminal street gang, the jury could infer, at the least, it was a gang that regularly committed crimes.   And from Launi's testimony that about 350 Santa Nita gang members have criminal records, the jury could conclude they committed crimes on a regular basis.4  Both Moreno and David were in the gang.   Moreno had been in the gang long enough to accumulate several gang tattoos.   He had a number of continuing contacts with law enforcement before the robbery.   He committed the crime with a fellow gang member.   From this the jury would have been hard pressed to conclude longtime gang member Moreno committed this crime with absolutely no knowledge his gang was engaged in a pattern of criminal gang activity.

II

 Moreno argues the trial court failed to adequately instruct the jury sua sponte on active participation in a street gang.   The court read CALJIC No. 6.50 to the jury, which contains the elements of a section 186.22, subdivision (a) violation.5  One of the elements is that the defendant actively participated in a street gang.

 “The phrase [‘actively participates' in section 186.22] ․ has the same meaning as ‘active membership’ as defined by the case law.   To be convicted of being an active participant in a street gang, a defendant must have a relationship with a criminal street gang which is (1) more than nominal, passive, inactive or purely technical, and (2) the person must devote all, or a substantial part of his time and efforts to the criminal street gang.”   (People v. Green (1991) 227 Cal.App.3d 692, 700, 278 Cal.Rptr. 140.)   Moreno urges the court erred by not defining the term in this fashion.6

Nothing in People v. Green, supra, 227 Cal.App.3d 692, 278 Cal.Rptr. 140 mandates the instruction.  Green did not deal with instructional error, rather it concerned a constitutional challenge to the statute as vague and overly broad.  (Id. at p. 695, 278 Cal.Rptr. 140.)   When the court made the statement quoted above, it was not trying to define a complicated technical term.   It was merely noting the Legislature's purpose in requiring active membership was to “prevent prosecution of persons who were no more than nominal or inactive members of a criminal street gang.”  (Id. at p. 700, 278 Cal.Rptr. 140.)   Indeed, the court noted “active” is “a term which has been held to be well understood in common parlance.  [Citation.]”  (Id. at pp. 699-700, 278 Cal.Rptr. 140.)

 “A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.  [Citation.]”   (People v. Lang (1989) 49 Cal.3d 991, 1024, 264 Cal.Rptr. 386, 782 P.2d 627;  and see People v. Howard (1988) 44 Cal.3d 375, 408, 243 Cal.Rptr. 842, 749 P.2d 279 [court has sua sponte duty to define term only if it has a technical meaning peculiar to the law].)   If Moreno thought amplification was appropriate, he should have requested it.

 Nevertheless, “an appellate court may review any instruction given even though no objection was made in the lower court if the substantial rights of the defendant are affected.  [Citations.]  ․ ‘[S]ubstantial rights' [is equated] with reversible error, i.e., ․ a miscarriage of justice [.]  [Citations.]”  (People v. Arredondo (1975) 52 Cal.App.3d 973, 978, 125 Cal.Rptr. 419.)   We ask whether it is reasonably likely Moreno would have received a favorable verdict in the absence of the error.  (People v. Cortez (1981) 115 Cal.App.3d 395, 407, 171 Cal.Rptr. 418.)   It is not.

As we noted in part I, the evidence concerning Moreno's gang membership was ample to show he was not a fringe member of Santa Nita. He was serious, as evidenced by his tattoos and the robbery, and his regular contacts with police show he spent a substantial part of his time involved in criminal activities from which it could be inferred that he was involved with the active criminal street gang.   Instructing in the language of People v. Green, supra, 227 Cal.App.3d 692, 278 Cal.Rptr. 140 would not have changed the result.

III

 Moreno claims his prior juvenile adjudication did not qualify as a strike under the Three Strikes law.7  The juvenile adjudication was for robbery with an allegation a principal was armed with a firearm.   In Moreno's juvenile case, a principal was armed, but it was not Moreno.

Moreno points out a prior juvenile adjudication may not be used as a Three Strikes enhancement unless it was an offense listed in Welfare and Institutions Code section 707, subdivision (b).  (§ 667, subd. (d)(3)(D).) 8  He reasons that because Welfare and Institutions Code section 707, subdivision (b) lists “[r]obbery while armed with a dangerous or deadly weapon,” his juvenile case did not fall under that section since he was not personally armed.   But Welfare and Institutions Code section 707, subdivision (b) encompasses cases where a principal other than the minor is armed.  (In re Christopher R. (1993) 6 Cal.4th 86, 93-95, 23 Cal.Rptr.2d 786, 859 P.2d 1301.)   The trial court correctly used Moreno's juvenile adjudication as a strike.

IV

 Moreno asserts using the prior juvenile adjudication as a strike violated his right to a jury trial.   He was unquestionably not entitled to a jury when the juvenile matter was adjudicated.  (In re Ronald E. (1977) 19 Cal.3d 315, 323, fn. 4, 137 Cal.Rptr. 781, 562 P.2d 684.) His claim is “the Legislature has explicitly declared that some juvenile adjudications shall now constitute criminal convictions” under the Three Strikes law amendments to section 667, so he had a right to have a jury adjudicate the prior crime.   Not so.

Section 667, subdivision (d)(3) says “[a] prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement․”  (Italics added.)   The Legislature did not change the nature of the juvenile adjudication.   It changed the impact and treatment of a prior juvenile adjudication if the minor re-offended as an adult.

 At best, Moreno's contention must be viewed as an assertion he had a constitutional right to have a jury determine the juvenile case if it was ever going to be used to enhance an adult conviction.   But there is no constitutional right to have a jury determine the facts giving rise to an enhancement, including prior convictions.  (People v. Wiley (1995) 9 Cal.4th 580, 589, 38 Cal.Rptr.2d 347, 889 P.2d 541.)

V

 Moreno urges and the Attorney General concedes the trial court improperly denied him 10 days of pre-sentence credit.   The prosecutor sought to have Moreno deprived of all of his conduct credits for pre-sentence jail misconduct.   The trial court deducted 10 days from Moreno's actual pre-sentence custody days because he had spent 10 days in disciplinary isolation.   Although the trial court has discretion to deduct conduct and work credits if the defendant has failed to behave properly or perform satisfactory work (People v. Duesler (1988) 203 Cal.App.3d 273, 275-276, 249 Cal.Rptr. 775), the deduction, if any must be from those credits.  (See §§ 2900.5 and 4019.)

Moreno claims the matter should be remanded for resentencing.   The Attorney General argues the court clearly intended to withhold 10 days of credit, so the abstract of judgment should be ordered amended to reflect that deduction.

The court heard full argument on the credits issue before it ruled.   It clearly intended to deduct 10 days from the credits.   The time was improperly deducted from the actual pre-sentence days served, but could have been properly deducted from conduct credits.   We have no doubt the trial court would have made the latter deduction if it realized the former was impermissible.

The judgment is ordered modified to grant 450 days of credit for actual pre-sentence custody days served and 214 days of conduct credits (224 days minus 10 days), for a total of 664 days.   As modified, the judgment is affirmed.

FOOTNOTES

1.   All statutory references are to the Penal Code, unless otherwise noted.

2.   Launi indicated if Moreno had left the gang, “[the police] would have a lack of law enforcement contacts with him.”   A reasonable inference from this comment is the police contacts had continued with a fair amount of frequency up to the robbery.

3.   Moreno notes the jury found untrue an enhancement allegation that the crime was committed for the benefit of the gang.   But that does not mean the jury did not find the crime was committed by active gang members, albeit not for the gang's benefit on that occasion.

4.   The jury could reach this conclusion even if it assumed not all of the crimes were gang related.

5.   The instruction, as read to the jury, provided in relevant part:  “․ In order to prove [the crime of active participation in a street gang], each of the following elements must be proved:  [¶]1.  [The defendant] actively participated in a criminal street gang․”

6.   To make this argument, Moreno relies on a case that has since been depublished.   We review the contention, nevertheless.

7.   The trial court doubled the term on Moreno's robbery conviction to 10 years under section 667, subdivision (e)(1), part of the Three Strikes law.

8.   Subdivision (d)(3) provides:  “(3) A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if:  [¶] (A) The juvenile was 16 years of age or older at the time he or she committed the prior offense.  [¶] (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a felony.  [¶] (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.  [¶] (D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.”

WALLIN, J.

SILLS, P.J., and SONENSHINE, J., concur.

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