People v. Albillar

• Decision Date: 20 December 2010
• Docket Number: No. S163905.,S163905.
• Citation: 51 Cal.4th 47,244 P.3d 1062,10 Cal. Daily Op. Serv. 15,119 Cal.Rptr.3d 415
• Parties: The PEOPLE, Plaintiff and Respondent, v. Albert Andrew ALBILLAR et al., Defendants and Appellants.
• Court: California Supreme Court

51 Cal.4th 47

244 P.3d 1062

119 Cal.Rptr.3d 415

10 Cal. Daily Op. Serv. 15

2010 Daily Journal D.A.R. 18

The PEOPLE, Plaintiff and Respondent,

v.Albert Andrew ALBILLAR et al., Defendants and Appellants.

No. S163905.

Supreme Court of California

Dec. 20, 2010.

Vanessa Place, Los Angeles, under appointment by the Supreme, for Defendant and Appellant Albert Andrew Albillar.

Sharon M. Jones, Ventura, under appointment by the Supreme, for Defendant and Appellant Alex Adrian Albillar.

Conrad Petermann, Ojai, under appointment by the Supreme, for Defendant and Appellant John Madrigal.

Duane A. Dammeyer, Public Defender (Ventura) and Michael C. McMahon, Chief Deputy Public Defender, for California Public Defenders Association and Public Defender of Ventura County as Amici Curiae on behalf of Defendants and Appellants.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller, Lawrence M. Daniels, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

[51 Cal.4th 50, 244 P.3d 1064]

Defendants Albert Albillar, Alex Albillar, and John Madrigal stand convicted by a jury of forcible rape while acting in concert (Pen.Code, §§ 261, subd. (a)(2), 264.1), forcible sexual penetration while acting in concert ( id., §§ 289, subd. (a)(1), 264.1), and active participation in a criminal street gang ( id., § 186.22, subd. (a)). The jury further found that the sex offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members. ( Id., § 186.22, subd. (b).) Defendants challenge the sufficiency of the evidence supporting their convictions of the substantive gang offense as well as the gang enhancements. This appeal raises three issues.

The first involves the substantive offense defined by Penal Code section 186.22, subdivision (a) (section 186.22(a)), which punishes "[a]ny 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." Does this offense include an unwritten requirement that the "felonious criminal conduct" that is promoted, furthered, or assisted be gang related? We conclude it does not.

The remaining issues involve the enhancement defined by Penal Code section 186.22, subdivision (b)(1) (section 186.22(b)(1)), which adds specified penalties 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, with the specific intent to promote, further, or assist in any criminal conduct by gang members." Was there sufficient evidence to support the first prong—i.e., that the charged sex offenses were "committed for the benefit of, at the direction of, or in association with" a criminal street gang? And does the second prong require evidence that the charged sex offenses were committed with the specific intent to promote, further, or assist other criminal conduct by the gang—i.e., gang-related criminal conduct apart from the charged offenses? We conclude that these offenses were committed for the benefit of and in association with the gang. We also conclude, in accordance with the plain language of the enhancement, that the scienter element of the enhancement requires only "the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22(b)(1), italics added.)

We therefore affirm the judgment of the Court of Appeal.

BACKGROUND

In December 2004, twin brothers Albert and Alex Albillar and their cousin, John Madrigal, lived in an apartment in Thousand Oaks. All three defendants were in their 20's. All three were also members of the Southside Chiques gang.

On December 29, 2004, the three defendants met up with 15-year-old Amanda M., her friend, 14-year-old Carol M., and a third girl, Adriana, who was 16. Amanda knew that Alex and Albert were gang members but was not afraid of them, since neither of them had ever threatened her. But when Amanda was alone with the three defendants, Albert suggested to Amanda that they "have a foursome." Amanda, who did not have a "romantic relationship" with any of the defendants, replied "no" in a laughing manner. She did not think he was serious.

Later on, the group went to defendants' apartment. Albert brought Carol to the bedroom. He took off her pants and licked her vagina. After asking for her consent and hearing no reply, he engaged in sexual intercourse with her. Carol became upset, though, and told him to stop. He immediately withdrew. When she came out of the room, alone, she was crying and said she wanted to go home.

Defendants and the three girls got back in the car. Carol and Adriana were dropped off separately. On the way to Amanda's house, one of the defendants said he needed to make a stop at their apartment to use the bathroom, so Amanda accompanied them as they returned to the apartment. Amanda believed the stop would be brief and telephoned Carol to tell her so.

Once at the apartment, though, Albert told Amanda he wanted to talk to her alone in the bedroom. He told her he had engaged in oral sex and sexual intercourse that evening with Carol but had stopped "right away" when she told him to stop. Albert then kissed Amanda and removed her jeans. When Alex and Madrigal opened the bedroom door and asked if they could "get in," Amanda yelled, "No. Get out." But Alex and Madrigal paid her no heed. Albert moved off Amanda and grabbed one of her legs, while Madrigal grabbed the other, spreading her legs apart. Alex, who weighed considerably more than Amanda, climbed on top of her and pinned her hands above her head with one arm. He used the other to push her panties to one side and digitally penetrated her vagina. Amanda struggled to close her legs and told defendants to get away from her, but Alex had his full body weight on top of her, and Albert and Madrigal continued to hold her legs apart. Meanwhile, Alex withdrew his finger, inserted his penis, and raped her.

When Alex finished, Madrigal got on top of her. He had a Southside Chiques gang tattoo on his face, but Amanda slapped him. He replied in a threatening manner, "You don't even know what you just did," bit her thigh and shoulder, and thrust his fingers in her vagina. He attempted to kiss her on the mouth, but she moved her head back and forth, and told him repeatedly "no," "stop," and "get off me." Although Amanda tried to push Madrigal away, he proceeded to rape her—while the two other defendants stood in the doorway watching and giggling.

Amanda tried to get up after Madrigal had finished, but Albert pushed her back on the bed, climbed on top of her, and stuck his fingers into her vagina. She told him to stop, but he did not listen. Instead, he withdrew his fingers and raped her. Amanda continued to protest and then tried to pretend the rape was not happening. Albert ended by ejaculating on her stomach. Defendants subsequently drove her home.

Amanda originally did not want to tell anyone what had happened because "she feared that since the suspects were gang members they [would] come after her family." After some coaxing, though, Amanda told her younger sister and a few friends what was wrong and what had happened to her. When defendants became aware of the allegations Amanda was making, Amanda received a telephone call from Jazmin Sarabia, whose boyfriend was a Southside Chiques gang member and who was herself friends with defendants. Jazmin warned that Amanda and her family could be hurt if they told the police. Amanda became fearful for her family and decided to tell her parents what happened. They then contacted the police. Before the police were notified, though, Amanda and her mother also received threatening telephone calls from Albert's girlfriend, Carol M., as well as from Jazmin.

Oxnard Police Detective Neail Holland testified as an expert about gangs in Oxnard and the Southside Chiques gang in particular. Southside Chiques, whose membership is mostly Hispanic, claims part of Oxnard as its "turf," although its crimes are not limited to that specific geographic area. The gang has engaged in a pattern of "violent and vicious and brutal" crimes against a wide assortment of victims—"rival gangs, residents within their community, residents outside their community, family members, people that are close to them and even members within their own gang."

Southside Chiques gang members obtain status within the gang through various means, including committing crimes and assisting other gang members in committing crimes. Gang members commit crimes together to increase their chances of success, to bolster their confidence in one another, and to enable the participants to boast about each other's criminal endeavors to those were not present, since gang members would not necessarily increase their status by "going out and committing crimes by themselves and then coming back and bragging about it to the rest of the gang with absolutely no proof of its occurrence." Alternatively, a gang member could lose status by "not supporting gang members when they're out committing crimes or committing gang activities." Gang members also rely on intimidation and violence to gain "respect" in the community and to further the gang's interests.

In responding to a hypothetical based on the circumstances of this gang rape, Holland opined that such a crime would have been committed for the benefit of, at the direction of, or in association with a criminal street gang. His opinion was based on the way in which the gang members worked cooperatively to accomplish the rapes, the brutality and viciousness of the crimes, and the enhancement to the reputations for violence...