PEOPLE v. BRELAND (1996)

Convicted by a jury of multiple robberies (Pen.Code, § 211;  counts I, II, III, & IV;  statutory references, unless otherwise noted, are to the Penal Code) and carjackings (§ 215;  counts V, VI, & VII) appellant contends:  (1) the trial court erred in admitting gang membership evidence (2) carjacking is an included offense of robbery (3) “jacking” a car from the driver and passenger constitutes one, not two, carjackings and (4) the trial court erred in imposing an upper term.   We find no error and affirm the judgment.

FACTUAL BACKGROUND

There being no insufficiency of evidence claim, the facts may be stated simply.   Our perspective favors the judgment.  (People v. Barnes (1986) 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110.)

The trial involved four incidents.   All occurred in the same area near Rosecrans and Atlantic in East Los Angeles.   All involved a group of young male perpetrators, Hispanic, except for their leader, a young male Black.   The only issue was whether appellant, a male Black, was the perpetrator-leader of this Hispanic group.   We summarize each incident.

On April 14, 1994, about 10:30 p.m., Larry Faustinos ran out of gas on the 710 freeway.   He parked, got a plastic container, and walked to a nearby '76 gas station at the corner of Rosecrans and Atlantic.   As he approached the gas station he noticed six young men at the corner dressed like “hoodlums,” most wearing Pendleton shirts.   When they noticed him, three “disappeared”;  the remaining three continued to watch him.

Mr. Faustinos put gas in his container, paid for the gas, and walked by the three men—all Hispanic—still standing at the corner.   As Mr. Faustinos continued walking toward the freeway on-ramp he noticed a Hispanic man keeping pace with him across the street.   When Mr. Faustinos arrived at the on-ramp and stopped at the red light, two men, appellant and a Hispanic, suddenly appeared behind him.   Appellant said “Give me your F ․ ing money or I'll kill you․  My homeboy's got a gun.”   Meanwhile, the Hispanic man who had been across the street, ran toward Mr. Faustinos.

Surrounded by appellant and his two Hispanic companions, Mr. Faustinos gave his wallet to appellant and asked him to take only his money not his papers.   Appellant laughed, kept all the contents of the wallet, and with his companions fled into an alley.

Mr. Faustinos positively identified appellant at a lineup and at trial.

On June 12, 1994, about 2:15 a.m., Juan Espinoza and his uncle drove to the '76 gas station at Rosecrans and Atlantic.   Mr. Espinoza paid the cashier, put gas in the car, and returned to the cashier's booth for his change.   While waiting for his change, Mr. Espinoza felt someone remove his wallet from his back pocket.   He turned around and saw appellant.   Almost immediately seven Hispanic young men surrounded Mr. Espinoza and searched his pockets.   Appellant, speaking Spanish, asked Mr. Espinoza if he had more money.   Appellant also removed Mr. Espinoza's keys from his pocket and asked about his car.   Mr. Espinoza said his car was not there.

Mr. Espinoza's uncle saw his nephew being robbed and ran toward the nearby Tacos El Unico for help.   The security guard there, Mr. Penulosa, heard someone yelling they were being robbed, and went to the '76 gas station with drawn gun.   He saw the robbers run away.

Mr. Espinoza identified appellant at a lineup and at trial.

Mr. Penulosa, who had seen appellant “hanging around” the '76 gas station more than 30 times and had frequently spoken to him, identified appellant as one of the robbers who fled.

On June 29, 1994, about 7 p.m., Efrain Carbajal parked his van at the side of the '76 gas station (Rosecrans and Atlantic) by the air pump, exited, opened the rear door, and began putting air in a spare tire.   Someone put a hand on his shoulder and pressed what felt like a screwdriver into his back.   The person demanded money and removed Mr. Carbajal's wallet.   Mr. Carbajal looked at the person, a male Black, who said “I have your identification so if you call the police I will kill you.”

The male Black entered the van on the driver's side and began searching Mr. Carbajal's younger brother Jose, a passenger.   Other young men, Hispanic, appeared and joined in the search.   One took Jose's rings and identification papers.

Jose exited the van, six Hispanic young men all got in, and appellant drove off.

Jose identified appellant as the young male Black robber.   Efrain Carbajal identified appellant at a lineup and at trial.

On July 16, 1994, about 8 p.m., Juan Hernandez was “flagged down” by three girls at a bus stop on Atlantic Boulevard in Southgate.   He gave them a ride into East Los Angeles, just past Rosecrans, where they directed him to stop.   He saw a group of about 15 Hispanic young men in baggy clothes—“a lot of gang members”—standing there.   He looked to his right, toward the passenger side, where the Hispanic men had approached, when appellant, by the driver's side, reached in, turned the ignition off, and took the keys.   Appellant asked Mr. Hernandez what gang he was in and said he looked familiar.   Mr. Hernandez said he didn't belong to a gang and asked for his keys.   Appellant told Mr. Hernandez to get out and he did.   Mr. Hernandez noticed a “B” and “P” tattoo on appellant's hand between his thumb and index finger.   The Hispanic men surrounded Mr. Hernandez and when one of them tried to snatch his beeper, Mr. Hernandez fled to the nearby '76 gas station and called the police.   Before they arrived, Mr. Hernandez's car, appellant, and the Hispanic men were gone.

Mr. Hernandez positively identified appellant at a lineup and at trial.

Detective Fournier, a Los Angeles County deputy sheriff gang investigator, testified Rosecrans and Atlantic is Barrio Pobre gang turf, appellant is the only local Black member of that gang, appellant has a “B” and “P” tattoo on his hand, and a “Mi Lindo Barrio Pobre” tattoo on his chest.

Appellant did not testify but called alibi witnesses for the June 29, 1994, offenses.   They testified appellant was at a birthday party in Whittier until after 7 p.m.  (when the offenses occurred).   A party photograph, date imprinted, showed appellant and everyone else making the Barrio Pobre gang hand signal.

DISCUSSION

1. Appellant contends the trial court erred in admitting gang membership evidence.

A frequent purpose of gang membership evidence is “to establish possible bias of the defense witnesses in favor of [the defendant].”  (People v. Cardenas (1982) 31 Cal.3d 897, 904, 184 Cal.Rptr. 165, 647 P.2d 569.)   When offered for such purpose, this court has observed such evidence may be “cumulative and, if prejudicial, inadmissible.”  (People v. Maestas (1993) 20 Cal.App.4th 1482, 1495, 25 Cal.Rptr.2d 644.)

 Here, that was not the purpose of gang membership evidence.   The prosecutor made clear the sole purpose was identity.   If gang membership was “directly relevant to a material issue ․ nothing bars evidence of [such] gang affiliation․”  (People v. Tuilaepa (1992) 4 Cal.4th 569, 588, 15 Cal.Rptr.2d 382, 842 P.2d 1142;  People v. Saucedo (1995) 33 Cal.App.4th 1230, 1240, 40 Cal.Rptr.2d 153.)

In the instant case identity was the only material issue and appellant's gang affiliation was directly relevant to that issue.

 All of the following were undisputed:  the Barrio Pobre gang claimed Rosecrans and Atlantic as their turf;  all the crimes were committed on that gang turf;  the gang was Hispanic with only one male Black member;  all the crimes were perpetrated by a male Black leader and a group of Hispanic confederates;  the male Black leader had a “B” and “P” tattoo on his hand and asked one of the victims what gang he belonged to;  the perpetrators exercised proprietary control over the Rosecrans–Atlantic area.   In such circumstances, evidence of appellant's Barrio Pobre membership was admissible to prove identity and therefore guilt.

2. Appellant contends carjacking is an included offense of robbery.

 Appellant contends carjacking is an included offense of robbery and therefore he should not have been convicted of both offenses in connection with Efrain Carbajal (counts III and V) and Jose Carbajal (counts IV and VI).

This court recently considered the identical contention in People v. Dominguez (1995) 38 Cal.App.4th 410, 418–419, 45 Cal.Rptr.2d 153.   We unanimously rejected the contention then and do so now.

3. Appellant contends “jacking” a car from the driver and passenger constitutes one, not two, carjackings.

 Appellant's contention has been recently and carefully considered by People v. Hamilton (1995) 40 Cal.App.4th 1137, 1140–1144, 47 Cal.Rptr.2d 343.   After a full analysis of the issue, Hamilton concluded:  “In the usual case of carjacking involving multiple occupants, all are subjected to a threat of violence, all are exposed to the high level of risk which concerned the Legislature, and all are compelled to surrender their places in the vehicle and suffer a loss of transportation.   All are properly deemed victims of the carjacking.   Defendant's two convictions were proper.”  (Id. at p. 1144, 47 Cal.Rptr.2d 343.)

We agree with the analysis and conclusion of Hamilton.

4. Appellant contends the trial court erred in imposing an upper term.

The trial court imposed the upper nine-year term on count V, the carjacking involving victim Efrain Carbajal.   In explaining its reasons the trial court stated:  “First, the defendant seemed to be an active member of a criminal group, characterized as a gang, but more importantly than that the evidence exposed that the defendant appeared to be the leader, the one in charge of the operation involving the criminal conduct that we have discussed and heard in connection with this matter.

“The second factor in aggravation the court considered, that each of these crimes involved the threat of great bodily injury to the individuals that were victimized by these activities.

“Third, the manner of the—in which the crimes were carried out shows a high degree of sophistication and planning.   Specifically I'm thinking about ․ the one that took place near the gas station, the person—the victim had run out of gas and was walking to get his gas filled up.   He described circumstances where he was followed and basically circled and it seemed to be a fairly well organized operation.

“The other instances in which the robberies took place, the carjackings, followed a similar pattern:  the victim seemed to be circled and there seemed to be a plan involved.

“The next factor in aggravation that the court considers is that this is violent conduct and it poses a serious threat to the safety of members of society at large.”

Appellant contends that “[o]f the three aggravating factors enumerated by the trial court, only one, the planning and sophistication of the crimes (Rule 421, subd. (a)(8)) was authorized under Rule 421” and therefore the trial court erred in imposing an upper term.

 Appellant is mistaken.   The trial court enumerated two factors in aggravation specified in California Rules of Court, rule 421:  “The defendant ․ occupied a position of leadership or dominance of other participants in its commission” (Rule 421(a)(4)) and “the manner in which the crime was carried out indicates planning, sophistication, or professionalism.”  (Rule 421(a)(8).)

 “A single factor in aggravation will support imposition of an upper term.  ‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’ ”  (People v. Cruz (1995) 38 Cal.App.4th 427, 433–434, 45 Cal.Rptr.2d 148.)

DISPOSITION

The judgment is affirmed.

FRED WOODS, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.