THE PEOPLE v. DANTA BRYANT

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. DANTA BRYANT et al., Defendants and Appellants.

B221367

Decided: January 26, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

William C. Hsu, under appointment by the Court of Appeal, for Defendant and Appellant Danta Bryant.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant Houston Risher.

Edmund G. Brown Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Danta Bryant and Houston Risher of second degree robbery and the court sentenced each defendant to a 13-year prison term including a 10-year street gang enhancement.   On appeal, defendants contend the evidence was insufficient to support their gang enhancements.   We agree and modify the judgments to strike the enhancements.

FACTS AND PROCEEDINGS BELOW

As Demontre Carter sat in the waiting area of the Karma Tattoo Shop defendants Bryant and Risher entered the shop and sat next to him.   Bryant struck up a conversation with Carter.   After they talked for awhile, Bryant asked Carter about the tattoos he was planning to get and how much money he planned to spend.   Carter gave noncommittal answers.   Bryant pulled up his shirt and showed Carter the gang tattoos on his chest.   He told Carter he belonged to the “5-9 Hoovers” and had just gotten out of jail.   Carter, who had poor vision and was not wearing his glasses, could not make out what the tattoos said.   Carter was not a member of a gang.   After Bryant again asked Carter how much money he was going to spend, Carter felt “uncomfortable” so he got up and went to the restroom in the back of the store, removed $300 from his underwear and placed it in one of his socks.

When Carter came out of the restroom, Bryant and Risher were waiting for him.   Bryant pointed a gun at Carter and said:  “Give me your money.”   Carter said he didn't have any money.   Risher told him he was lying and both defendants threatened to shoot Carter if he didn't hand over his money.   Bryant put his hands in Carter's pockets and removed Carter's two cell phones.   He and Risher then “ran off” from the store.   A tattoo artist working at the store at the time of the robbery testified that neither he nor anyone else working at the store realized a robbery had occurred until Carter asked to use the telephone to call the police.

The police arrested Bryant and Risher the next day and recovered Carter's cell phones.   The District Attorney charged both men with second degree robbery and alleged that they committed the robberies for the benefit of a criminal street gang and with the specific intent to promote, further and assist criminal conduct by the gang's members.

At trial, the prosecution offered the testimony of Los Angeles police officer Andreas An in support of the street gang enhancement.   An testified as follows.

At the time of the robbery, the defendants were members of the Hoover Criminal Gangsters.   The gang has over 1000 members and is divided into “sets” or neighborhoods.   Gang members often wear clothing bearing the logo of the Houston Astros baseball team.   The gang and the sets have their own hand signs.   The primary activities of the gang, are narcotics sales, weapons possession, robberies, assaults with a deadly weapon, drive-by shootings, burglaries, criminal threats and murders.   An also testified that the gang engages in these criminal activities “consistently and repeatedly.”   An knows the gang's activities based on his own investigations, training from senior gang officers and detectives and reviewing field identification cards.   An identified two recent crimes by members of the Hoover Criminal Gangsters as evidence of the gang's “pattern of criminal gang activity” under Penal Code section 186.22, subd. (e).  One member was convicted of a robbery that took place in December 2007.   The other member was convicted of being a felon in possession of a firearm in March 2008.

Given a hypothetical based on the facts of this case, An expressed the opinion that Carter was robbed “for the benefit of, at the direction of, or in association with the Hoover Street gang.”   An testified that the robbery benefited the gang by creating fear and intimidation in the community and also benefited the gang financially because the cell phones could be sold to provide money to assist the gang in buying narcotics, clothes or cars or the phones could be used in conducting drug transactions.

The jury found the defendants guilty of second degree robbery and found the street gang allegations true.   The court sentenced each defendant to the 3-year midterm for the robbery and the 10-year gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C).  Defendants filed timely appeals.

DISCUSSION

Substantial evidence does not support the jury's finding that the defendants committed the robbery for the benefit of a criminal street gang (Pen.Code, § 186.22, subd. (b)(1)) because An's testimony does not establish the requisite “primary [criminal] activities” of the gang.  (Pen.Code, § 186.22, subd. (f).)

The phrase “primary activities” as used in the gang enhancement statute “implies that the commission of one or more of the statutorily enumerated crimes be 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.”  (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)   The “primary activities” element may be satisfied by a showing that the group “consistently and repeatedly” committed the crimes listed in the statute.  (Id. at p. 324.)

In this case the evidence of the Hoover Criminal Gangsters' primary activities was limited to An's testimony that “they sell a lot of narcotics”;  “we arrest them numerous times carrying guns”;  “a lot of robbery investigations, assault with deadly weapons, drive by shootings”;  “burglaries”;  “criminal threats”;  and “murders” that the “gang members engage in those activit[ies] consistently and repeatedly” and that he knows this “through [his] own investigations, from training from senior gang officers, gang detectives” and “field interview card [s].”

An's testimony was insufficient to establish the “primary activities” element of the street gang enhancement because it offered no specifics as to the number of predicate criminal acts committed by the gang's members for the benefit of the gang, their frequency or the time period over which they occurred.  (In re Alexander L. (2007) 149 Cal.App.4th 605, 611-612.)   An's conclusory testimony that the gang commits the predicate crimes “consistently and repeatedly” is insufficient to establish that committing those crimes is the gang's “chief” or “principal” occupation as is his testimony that 2 of the 1000 Hoover Criminal Gangsters committed requisite crimes within the past three years.   Finally, evidence that An investigated the commission of the requisite crimes is not evidence that those crimes were committed by members of the gang nor does evidence that gang members were arrested for those crimes prove that they committed them.   For the reasons explained above, we will modify the judgments by striking the 10-year street gang enhancement.   The gang allegations may not be retried.  (See People v. Seel (2004) 34 Cal.4th 535, 546-547.)

DISPOSITION

The convictions are affirmed.   Each defendant's sentence is reversed, and the cause is remanded for resentencing.   Defendants are entitled to be present at the resentencing hearing.

NOT TO BE PUBLISHED.

We concur:

MALLANO, P. J. CHANEY, J.