THE PEOPLE v. TRAVIS ANTHONY WEBB

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. TRAVIS ANTHONY WEBB, Defendant and Appellant.

B227721

Decided: October 21, 2011

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Travis Anthony Webb appeals from the judgment entered following his convictions by jury on three counts of carjacking (Pen.Code, § 215, subd. (a);

counts 1 – 3) with findings he committed the offenses for the benefit of a criminal street gang (Pen.Code, § 186.22, subd. (b)).  The court sentenced appellant to prison for three concurrent terms of 15 years to life.   We affirm the judgment.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on April 13, 2008, Guillermo Martinez and his wife Mirna Torres were in their red Toyota Celica with their infant daughter, Jaleen Martinez (Jaleen).   The Celica was parked in the parking lot of a Rite Aid in Palmdale.   Martinez, who had been driving, exited the Celica to enter the store while Torres and Jaleen remained in the car.   A nearby Honda Civic contained four male Hispanics, and one female seated in the front passenger seat.   Two of the males, i.e., the Civic's driver and a rear passenger, exited the Civic and carjacked the Celica from Torres, Martinez, and Jaleen (counts 1 through 3, respectively).   During the carjackings, the carjacker who had been the rear passenger in the Civic held Martinez at knifepoint.   The two carjackers drove away in the Celica with the Civic following.   The Rite Aid and a Food4Less store were in the same business complex.

Two fingerprints from two fingers of the right hand of appellant were found on the exterior of the driver's window of the Celica.   One of those two fingerprints was smudged, and the two fingerprints were consistent with appellant having placed them there while closing the Celica's driver's door from outside.

Two downward-pointing fingerprints from two fingers of the left hand of Oswaldo Salazar were found on the exterior top edge of the driver's window of the Celica.   An additional fingerprint from Salazar's left hand was found on the exterior of the driver's window.

The testimony of Deborah Rebeaud 1 established the following.   About 3:00 p.m. to 4:00 p.m. on April 13, 2008, Rebeaud and her friends, Marcus Deherrera and Mikey Lynch, were at Littlerock Dam. Rebeaud had arrived in her Honda Civic.   Deherrera later drove the Civic, containing Rebeaud and Lynch, to a store.   Rebeaud was in the “passenger” seat and Lynch was in the back seat.

At some point after Rebeaud left Littlerock Dam, appellant and Salazar entered the Civic.   Rebeaud testified that, at some point during the afternoon, “we had a couple of 12 packs, bottles.”   Appellant, Salazar, Deherrera,2 and Rebeaud went in the Civic to a Stater Brothers store to buy drinks.   Lynch may have exited at some point.   Appellant, Salazar, and Deherrera were LCV gang members.

Rebeaud told Los Angeles Police Detective Tyrone Berry that Deherrera drove the car containing appellant, Salazar, and Rebeaud across the street to a Food4Less parking lot.   Rebeaud did not tell Berry that appellant, Salazar, and Deherrera took a car belonging to two persons, but told Berry that anything was possible.

Rebeaud told Berry that she saw appellant and Salazar exit her car while she was in the Food4Less parking lot, but she did not see where the two went.   She also said that Deherrera, Lynch, and Rebeaud then left to get something to eat.   Rebeaud testified she had been drinking and taking pills during many of the above events, and that she was sleeping most of the time.   The Civic was registered to Rebeaud's husband, who was an LCV member.

Berry, who was the investigating officer in this case, testified as follows.   In July 2008, Berry interviewed Rebeaud.   Her answers to Berry's questions were very specific.   When Rebeaud referred to appellant, Salazar, Deherrera, and Lynch, she always referred to them by, and only knew them by, their monikers (i.e., Little Gangster, Enemy, Smokey, and Mikey, respectively).   Berry showed to Rebeaud a photograph depicting appellant, and she told Berry the photograph depicted Little Gangster.

Rebeaud told Berry the following.   Rebeaud, appellant, Salazar, Deherrera, and Lynch were in the car when they arrived at the Food4Less.   Rebeaud was in the back seat.   Rebeaud saw appellant and Salazar exit the Civic when they arrived at Food4Less.   When appellant and Salazar exited the car, “ ‘[Salazar] and [appellant] jacked the family's car.’  “ The family's car was a red Toyota.   After appellant and Salazar carjacked the family's car, appellant and Salazar drove away in it.   When Berry and Rebeaud conversed about what had happened with appellant, Salazar, Deherrera, and Lynch, she was referring to a carjacking that occurred at the Rite Aid. Rebeaud never told Berry that anyone else was involved in this case.

Berry, a gang expert, also testified as follows at appellant's 2010 trial.   LCV stood for Los Compadres Varrio, which was a criminal street gang.   There were 65 LCV members in 2008.   The primary activities of LCV included carjackings and witness intimidation.   Appellant, Salazar, and Deherrera were LCV members.   On April 13, 2008, Lynch was not an LCV member, but he was associating with LCV members.

Appellant had on his forehead a large, bold tattoo of the letter C. The C stood for Compadres.   A May 2008 photograph depicted appellant with a portion of his head shaved and with the tattoo on his head.   Appellant had on the back of his head a tattoo that said LCV3. LCV3 was equivalent to LCV.

Salazar had, above his right eyebrow, a tattoo that said LCV. Salazar had on the lower portion of his head a tattoo that said Compadres.   He also had, on the back of his head, a tattoo that said LCV. The hair of appellant and Salazar was longer at trial than their hair was at the time of the present offenses.   Berry testified at the preliminary hearing that one way a citizen would identify a person as a gang member was by the person's appearance.

According to Berry, the present offenses benefited LCV as a gang.   The present offenses were violent crimes which terrorized the community.   One of the primary goals of a criminal street gang was to instill fear in the community, since such fear aided the gang in the commission of other crimes.   Victims and witnesses fearing gang retaliation were reluctant to cooperate in a prosecution.

When crimes such as the present offenses were attributed to LCV, the status of the gang among rival gangs increased, as did the status of individual LCV members.   The present offenses also increased the status of the perpetrators, because they were working together and other members of the gang would learn that the perpetrators were “putting in work,” i.e., were active gang members.

The present offenses were committed within the territory of the LCV gang.   Berry had spoken with members of other gangs who knew that LCV had committed the present offenses.   Two community members told Berry that they were aware the present offenses constituted a gang case involving a carjacking committed by gang members, and that said community members were afraid.3  During conflicts between rival gangs, gang members typically yelled their gang names to the rival gang members, but gang members would not typically yell their gang names when committing crimes against the public.   A code of silence existed among rival gangs, but yelling a gang name to the public would increase the risk of criminal prosecution.

ISSUE

Appellant claims there was insufficient evidence supporting the true findings as to the gang enhancement allegations, the admission of gang evidence was error, and the trial court erred by not bifurcating the trial of said allegations.

DISCUSSION

There Was Sufficient Evidence Supporting the True Findings As to the Gang Enhancement Allegations, the Admission of Gang Evidence Was Not Error, and There Was No Need to Bifurcate the Trial.

1. Sufficient Evidence Supported the True Findings as to the Gang Enhancement Allegations.

a. There Was Sufficient Evidence The Present Offenses Were Committed for the Benefit of a Criminal Street Gang.

Appellant claims there is insufficient evidence supporting the gang enhancements.

His arguments are two:  (1) there is insufficient evidence he was convicted of felonies “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” (italics added) within the meaning of Penal Code section 186.22, subdivision (b)(1), and (2) there is insufficient evidence of a “pattern of criminal gang activity” within the meaning of subdivision (e) and, therefore, subdivision (f).  We reject appellant's claim.

There is no dispute there was sufficient evidence appellant committed the present carjackings.   As to their related gang enhancements, this is not a case involving merely a single gang member who committed a crime, or involving concerted criminal action which is allegedly gang-related only because of the fact of gang membership of the perpetrators.   Instead, there was substantial evidence as follows.

Appellant and Salazar not only acted in concert when committing the present offenses, but appellant, Salazar, and Deherrera were LCV members.   Lynch and Rebeaud were associating with them.   The primary activities of LCV included carjackings and witness intimidation, and there were only about 65 members in the gang.   No other gangs were involved in the present incident and, except for the victims, no one was involved in this incident except LCV members and persons associated with them.   Rebeaud knew appellant, Salazar, and Deherrera by their gang monikers only.   The Civic in which appellant, Salazar, Deherrera, Lynch, and Rebeaud traveled was registered to Rebeaud's husband, an LCV member.   The present offenses were committed in LCV gang territory.

One way a citizen identified gang members was by their appearance.   The jury reasonably could have concluded as follows.   At the time of the present offenses, appellant had a large, bold, and visible C on his forehead, and the C stood for Compadres.   Appellant had a visible tattoo that said LCV3 on the back of his head, and LCV3 was equivalent to LCV, which stood for Los Compadres Varrio.   Salazar too had visible LCV tattoos above his right eyebrow and on his head.   The jury reasonably could have concluded that Martinez and Torres saw these LCV tattoos during the commission of the present offenses and that, in any event, appellant and Salazar were publicizing their gang membership.

Moreover, Berry opined at trial that the present offenses were committed for the benefit of LCV since the present offenses were violent offenses which would terrorize the community and increase the status of the gang, its individual members, and the perpetrators of the present offenses.   Members of other gangs, and members of the community, knew LCV members had committed the present offenses.

The jury reasonably could have concluded that Deherrera, who arrived in the Civic with appellant and Salazar at the victims' location, and who left that location in the Civic, following the Celica, had been available to help during the carjackings.   The jury also reasonably could have concluded that LCV members employed a code of silence with the result they would not report crimes committed by them, and that this benefited the gang by making criminal prosecutions more difficult.

Even if appellant was challenging the sufficiency of the evidence of the requisite intent for the gang enhancements, there was ample evidence appellant and Salazar

(1) intended to commit carjacking against the victims, (2) assisted each other in committing those offenses, and (3) were members of a criminal street gang.

We conclude there was sufficient evidence the present offenses were gang-related and that appellant was convicted of felonies “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” within the meaning of Penal Code section 186.22, subdivision (b)(1).  (Cf. People v. Albillar (2010) 51 Cal.4th 47, 59–63, 68.)   None of the cases cited by appellant compel a contrary conclusion.

b. There Was Sufficient Evidence of a Pattern of Criminal Gang Activity.

During trial, Berry testified without objection that John Gonzalez was an LCV member, Berry twice had arrested him, Gonzalez's moniker was Villain, and he was “currently out of prison on parole.”   The People introduced into evidence without objection a certified copy of a minute order reflecting that on or about April 6, 2006, Gonzalez was charged with possession of a firearm by a felon.   Berry testified without objection that “at the time that this crime was committed by [Gonzalez],” Gonzalez was an LCV member.

Berry also testified without objection that Miguel Jacobo was an active and documented LCV member, his moniker was Youngster, and, at the time of trial, Jacobo was in prison for possession of a handgun.   The People introduced into evidence without objection a certified copy of a minute order reflecting that on February 13, 2008, Jacobo was arrested for possession of a firearm by a felon.   Berry testified without objection that at the time of that arrest, Jacobo was an LCV member.

Appellant claims there is insufficient evidence of the requisite “pattern of criminal gang activity” within the meaning of Penal Code section 186.22, subdivision (e),4 because the predicate offense evidence introduced by the People established only that certain gang members had been arrested for predicate offenses, and did not establish that said gang members had committed, or had been convicted of, those offenses.   We reject the claim.

Documentary evidence was admitted into evidence that on or about April 6, 2006, Gonzalez was charged with the crime of possession of a firearm by a felon, and Berry testified Gonzalez committed that crime and was an LCV member at that time.   Documentary evidence was admitted into evidence that on February 13, 2008, Jacobo was arrested for the crime of possession of a firearm by a felon.   Berry testified that at the time of that arrest, Jacobo was an LCV member, and also testified that, at the time of trial, Jacobo was “out of prison on parole,” which implied a prior conviction.   Additionally, whether or not we rely on the evidence pertaining to Jacobo, in the present case there was substantial evidence that appellant and Salazar committed three carjackings and, in this case, appellant was convicted of each carjacking.   There was sufficient evidence of the requisite “pattern of criminal gang activity” within the meaning of Penal Code section 186.22, subdivision (e).  (Cf. People v. Loeun (1997) 17 Cal.4th 1, 5;  Ochoa, supra, 6 Cal.4th at p. 1206;  In re Elodio O. (1997) 56 Cal.App.4th 1175, 1179–1180.)

2. The Court Did Not Abuse Its Discretion by Admitting Gang Evidence or by Failing to Bifurcate the Gang Enhancement Allegations.

Over appellant's objection, the trial court allowed the admission into evidence of gang evidence, and the trial court denied appellant's request to bifurcate the trial of the gang enhancement allegations from the trial on the carjacking allegations.   Appellant claims the admission of gang evidence was error, and the trial court erred by not bifurcating the trial.   We disagree.   An appellate court applies an abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.  (People v. Waidla (2000) 22 Cal.4th 690, 717.)   Similarly, we review a trial courts decision not to bifurcate a gang enhancement allegation for abuse of discretion.

(People v. Hernandez (2004) 33 Cal.4th 1040, 1050–1051 (Hernandez ).)

Appellant does not expressly argue the gang evidence presented at trial was inadmissible to prove the gang enhancement allegations.   He argues, inter alia, the gang evidence was inadmissible to prove appellant committed the carjackings.   However, appellant concedes someone committed the carjackings;  the issue, therefore, is identity.   Appellant does not claim on appeal there was insufficient evidence identifying him as a perpetrator of the carjackings.   We note that, even if we leave aside any gang evidence, there was ample evidence identifying appellant as a perpetrator of the carjackings from the fingerprints he left on the victims' Celica, i.e., fingerprints consistent with appellant having closed the Celica's driver's door.   Our “Supreme Court has repeatedly emphasized that fingerprints are the strongest evidence of identity and ordinarily are sufficient by themselves to identify the perpetrator of the crime.”  (People v. Figueroa (1992) 2 Cal.App.4th 1584, 1588, italics added.)   Rebeaud's testimony, and her statements to Berry, provided additional evidence that appellant was a perpetrator of the carjackings.

Moreover, apart from whether the gang evidence was admissible on the issue of identity, the trial court, in its final charge to the jury, gave CALCRIM No. 1403, which effectively instructed the jury that the jury (1) was not to consider the gang evidence in connection with any issues related to whether appellant was guilty of the carjackings, except as to the issue of witness credibility, (2) was to consider the gang evidence only in connection with certain issues related to the gang enhancement allegations, and (3) was not to consider the gang evidence as propensity evidence.5  We presume the jury followed those instructions.  (Cf. People v. Sanchez (2001) 26 Cal.4th 834, 852).   Appellant, as was his right, did not testify;  therefore, his credibility as a witness was not at issue.

The mere fact, if true, that gang evidence proffered on a gang enhancement allegation is inadmissible as to the underlying substantive offense does not render a trial court's decision to deny bifurcation an abuse of discretion.   (Hernandez, supra, 33 Cal.4th at p. 1050.)   Factors favoring joinder may still exist, since a unitary trial on the allegations pertaining to the substantive offense and gang enhancement ordinarily avoids the increased expenditure of funds and judicial resources which might result if bifurcation occurred.  (Id. at pp. 1050–1051.)   We conclude the trial court did not abuse its discretion by admitting the gang evidence.   We also conclude the trial court did not abuse its discretion by failing to bifurcate the trial on the gang enhancement allegations.  (Cf. Hernandez, supra, 33 Cal.4th at pp. 1048–1051.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Rebeaud did not testify at trial, but her preliminary hearing testimony was admitted into evidence at trial..  FN1. Rebeaud did not testify at trial, but her preliminary hearing testimony was admitted into evidence at trial.

FN2. Neither Salazar, Deherrera, nor Lynch is a party to this appeal..  FN2. Neither Salazar, Deherrera, nor Lynch is a party to this appeal.

FN3. One of the two community members was an employee who worked at Food4Less.   According to Berry, the employee had heard about the incident at work, and Food4Less employees knew the present offenses involved a carjacking by gang members.   The other community member was involved with “community boards” and had heard about the incident during a town meeting.   Both community members were sheriff's volunteers..  FN3. One of the two community members was an employee who worked at Food4Less.   According to Berry, the employee had heard about the incident at work, and Food4Less employees knew the present offenses involved a carjacking by gang members.   The other community member was involved with “community boards” and had heard about the incident during a town meeting.   Both community members were sheriff's volunteers.

FN4. Penal Code section 186.22, subdivision (e)(21), states, in relevant part, “(e) As used in this chapter, ‘pattern of criminal gang activity’ means the commission of, ․ conspiracy to commit, ․ or conviction of two or more of the following offenses, provided ․ the offenses were committed on separate occasions, or by two or more persons:  [¶] ․ [¶] (21) Carjacking, as defined in Section 215.”  (Italics added.).  FN4. Penal Code section 186.22, subdivision (e)(21), states, in relevant part, “(e) As used in this chapter, ‘pattern of criminal gang activity’ means the commission of, ․ conspiracy to commit, ․ or conviction of two or more of the following offenses, provided ․ the offenses were committed on separate occasions, or by two or more persons:  [¶] ․ [¶] (21) Carjacking, as defined in Section 215.”  (Italics added.)

FN5. CALCRIM No. 1403 on the “Limited Purpose of Evidence of Gang Activity.”   That instruction stated, “You may consider evidence of gang activity only for the limited purpose of deciding whether:  [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancement charged.  [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his opinion.  [¶] You may not consider this evidence for any other purpose.   You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.”.  FN5. CALCRIM No. 1403 on the “Limited Purpose of Evidence of Gang Activity.”   That instruction stated, “You may consider evidence of gang activity only for the limited purpose of deciding whether:  [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancement charged.  [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his opinion.  [¶] You may not consider this evidence for any other purpose.   You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.”

CROSKEY, Acting P. J. ALDRICH, J.