People v. Delahoussaye, A105109 (Cal. App. 10/5/2007)
| Decision Date | 05 October 2007 |
| Docket Number | A105109 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ERIC JASON DELAHOUSSAYE, Defendant and Appellant. |
Appeal from the San Mateo County Super. Ct. No. SC054317.
Appellant Eric Jason Delahoussaye seeks to reverse his conviction after jury trial of two counts of assault, and one count each of participation in a criminal street gang and possession of methamphetamine, along with criminal street gang enhancement allegations, for which he was sentenced for a total of 11 years. Appellant contends there was not sufficient evidence that he possessed a "usable" quality of methamphetamine or had specific intent to promote, further, or assist in criminal gang activity, and that the court committed prejudicial error by failing to adequately instruct the jury about the definition of "primary activities" in determining the criminal street gang count and the two enhancement allegations. Appellant also contends that the trial court violated his constitutional rights when it imposed upper term and consecutive prison sentences for his convictions.
In a prior opinion filed on November 8, 2005, we rejected appellant's arguments and affirmed all of his convictions. However, on January 22, 2007, the United States Supreme Court issued its mandate in Cunningham v. California (2007) 549 U.S. ___ (Cunningham), which reversed the judgment in this matter and remanded it to this court for further consideration in light of Cunningham. Accordingly, the remittitur issued by this court on February 6, 2006 was recalled, and the parties were asked to file, and subsequently did file, supplemental briefs addressing the effect of Cunningham on the sentencing issues presented in this appeal. On July 19, 2007, the California Supreme Court issued its opinions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), which are directly relevant to the issues raised in this appeal as well, and which we discuss, post.
We affirm the trial court's judgment in all respects other than sentencing. Regarding sentencing, pursuant to Cunningham, supra, 549 U.S. ___ , and Black II, supra, 41 Cal.4th 799, we affirm the trial court's imposition of consecutive sentences and an upper term sentence for count 1, vacate the other upper term sentences, and remand this matter for further proceedings regarding sentencing consistent with this opinion and Sandoval, supra, 41 Cal.4th 825.
At trial, a police officer testified that he had investigated two assaults on April 4 and 9, 2003 (there was no evidence that appellant was involved in either assault) and was an expert on criminal street gangs. He stated that, on April 4, a group of men belonging to the East Side Daly City (ESDC) gang (a "Norteno" gang that generally wears red clothing) and Fog Town gangs came upon a man, M.H., working on his car in front of his house in Daly City. The gang members surrounded M.H., beat him, and took his blue cigarette lighter before M.H.'s friends chased them away. Some of the ESDC gang members returned a few minutes later and were confronted by a gun-carrying resident of M.H.'s house. The men chased this resident into his garage and attacked him. The resident shot three of the attackers, one of whom collapsed and died about a block away. Three of the attackers were later convicted of strong-arm robbery in association with a street gang for the incident.
Six days later, around midnight on April 9, a man and a woman wearing blue shirts were washing clothes in a laundromat near where the attacker had collapsed on April 4. A group of men entered the laundromat and asked the man if he was "scrap," to which he replied that he was not in any gang and went back to his laundry. The men attacked him from behind, knocked him down, and kicked and stomped him hard enough to leave a shoe print on the side of his head. His woman companion tried to break up the attack and was attacked herself. According to the testifying officer, two suspects identified as participating in the assault were ESDC gang members.
According to another testifying officer, the police videotaped a gathering of about 25 known or suspected ESDC and Fog Town gang members, including the appellant, among those attending a rosary for the slain attacker at a mortuary in South San Francisco on April 10. The next morning, the testifying officer learned that two more attacks had occurred in the area the previous evening after the camera had been turned off; he began investigating these as well. The evidence at trial indicated appellant played a leading role in both assaults.
The first victim was Jimmy C., a 24-year-old homeless man out on parole who was going to his aunt's house in South San Francisco around 7:30 p.m. on April 10. He was wearing a black jacket with a red "Nike" insignia. According to his trial testimony, he saw a group of people, who appeared to him to be Latino, outside a funeral home. More than six men surrounded him at the park across the street from the mortuary. After he denied being a "Norte" gang member, he was punched many times in his head, back, and legs. He fell to the ground and the group continued to kick him all over his body. He could not see who was beating and kicking him because he was trying to cover his head, and soon lost consciousness. When he regained consciousness, his jacket was gone. He was hospitalized overnight, was in pain for two weeks from a variety of injuries, and continued to suffer from severe headaches at the time of trial.
An eyewitness to Jimmy C.'s beating, Maria G., testified that she saw five young men within a surrounding group of 15 to 20 bystanders, most of whom appeared to be Hispanic, hitting someone on the ground. She crossed the street towards the scene and specifically saw appellant being pulled away from the victim, still making motions as if to hit the victim, and heard him say to the others, She saw appellant wipe his red-stained hands and go towards the mortuary with the others. After the attackers left, she went over and saw the victim, who she identified from photographs at trial. Maria G. walked by the mortuary on her way home and saw people involved in the attack by the funeral home. She went home and began making preparations for dinner for a friend, Jose M.
Jose M. was walking to Maria G.'s house when, according to his testimony, he saw a lot of people, appearing to be Hispanic and Filipino, coming out of the funeral home. A thin Hispanic-looking man in his twenties' unknown to Jose M., approached him. After a brief verbal exchange, the man tried to jab Jose M. with a four to five-inch knife. Jose M. ran, only to be pursued by a group that caught him, knocked him down, surrounded him, and started to beat him, punching and kicking him repeatedly mostly in his head. Jose M. did not identify anyone in the courtroom as one of the attackers.
C.S., an eyewitness to a part of the attack on Jose M., identified appellant as leading a group running away from the mortuary. She saw the group, appellant included, hovering over some bushes and kicking and punching someone on the ground, as a young man in a red hooded sweatshirt kept watch about four feet from the beating. The attackers ran in the direction of the mortuary as the victim, stumbling and appearing disoriented, pointed and shouted at his attackers.
A bloodied Jose M. arrived at Maria G.'s house at about 9:00 p.m. Together they went back to the area of the funeral home and found six South San Francisco officers. Other officers had already detained and were questioning appellant, whom Maria G. recognized.
Appellant told police at the scene that several of his friends were running down the street near the time of the "fight," but that he did not know their names or remember exactly who they were. After appellant agreed to a search, police found in his jacket pocket a cigarette pack with a clear plastic bag containing a crystal-like substance inserted between the box and the wrapper. According to an officer who testified at trial, appellant indicated it was his and that it was methamphetamine. He admitted that he had "smoked some of that shit earlier" and pleaded with officers to "just cite [him] out . . . give [him] a ticket." He was placed under arrest and taken to county jail. A criminalist testified at trial that the baggy contained . 03 grams of methamphetamine.
Appellant was charged with one count of assault by means of force likely to produce great bodily injury for each of the attacks on Jimmy C. and Jose M. in violation of Penal Code section 245, subdivision (a)(1); participation in a criminal street gang in violation of Penal Code section 186.22, subdivision (a); and possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a). It was also alleged that the assaults were committed for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1).
A jury found appellant guilty on all counts, and also found the enhancement allegations to be true. Among other things, the trial court denied appellant probation and sentenced him to an 11-year prison term, imposing the upper term of four years, and a consecutive upper term enhancement of four years, for count 1, the assault on Jimmy C.; stayed an upper term of three years for the gang participation count; imposed a consecutive term of one year one-third the mid-term, and a consecutive term of one year, four months, one third of the upper term for the enhancement allegation, for the assault on Jose M. The court imposed a consecutive eight-month term, one third of the mid-term, for possession of methamphetamine. This timely appeal followed.
Appellant...
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