People v. Duran

• Decision Date: 30 April 2002
• Docket Number: No. B147984.,B147984.
• Citation: 119 Cal.Rptr.2d 272,97 Cal.App.4th 1448
• Parties: The PEOPLE, Plaintiff and Respondent, v. Antonio DURAN et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

119 Cal.Rptr.2d 272

97 Cal.App.4th 1448

The PEOPLE, Plaintiff and Respondent, v. Antonio DURAN et al., Defendants and Appellants.

No. B147984.

Court of Appeal, Second District, Division 3.

April 30, 2002.

Certified for Partial Publication.^* Review Denied July 24, 2002.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant Antonio Duran.

Michele A. Douglass, Long Beach, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Fonseca.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Michelle J. Pirozzi, Deputy Attorney General, for Plaintiff and Respondent.

ALDRICH, J.

I INTRODUCTION

After a jury trial, defendants and appellants Antonio Duran and Jesus Fonseca were each convicted of two counts of robbery. Duran was also convicted of evading a police officer. The jury found firearm and street gang enhancements true, and the trial court sentenced Duran and Fonseca to prison terms of 23 years and 33 years, 4 months, respectively.

In the published portion of this opinion, we consider and reject appellants' contentions that the evidence was insufficient to prove the robberies were undertaken for the benefit of, at the direction of, or in association with a criminal street gang (Pen.Code, § 186.22, subd. (b)(1)).¹ We hold that a certified minute order documenting a third gang member's conviction for a predicate offense was not inadmissible hearsay. The minute order, coupled with a gang expert's testimony, was sufficient to establish one predicate offense. We also conclude that the People presented sufficient evidence to prove that the gang's primary activities were statutorily enumerated criminal offenses within the meaning of section 186.22, subdivision (f).

In the unpublished portion of the opinion, we address Fonseca's contention that the trial court erred by imposing a sentence enhancement pursuant to section 12022.53, subdivision (b) on count 2,² because this enhancement had previously been stricken. We also consider Duran's contentions that the evidence was insufficient to prove he was an aider and abettor in one of the robberies, and insufficient to support the firearm enhancement alleged against him. The People contend the abstract of judgment must be corrected to accurately reflect the sentence imposed on Fonseca. We correct the abstract of judgment as requested by the People. In all other respects, we affirm.

II FACTUAL AND PROCEDURAL BACKGROUND

A. Facts.

1. Robbery of Benjamin Beckum.

On December 1, 1999, Benjamin Beckum was standing outside a flower shop where he was employed. Duran and Fonseca drove past in a gold Nissan; Fonseca was driving. Beckum made eye contact with both appellants. Appellants gave Beckum a "weird look." The Nissan turned and pulled behind the flower shop, and Beckum lost sight of it.

Approximately five minutes later, Beckum saw Fonseca at a pay telephone outside the flower shop. Fonseca indicated he was having difficulty with the telephone and asked whether Beckum had a calling card. Beckum said he did not, and approached to examine the telephone. Fonseca hung up and asked, "Do you see those chains right there," referring to two gold chains Beckum was wearing. Beckum looked down at the chains. When he looked up again, Fonseca was displaying a black, pearl-handled revolver. Beckum observed the gold Nissan stopped in the middle of the street, approximately 300 feet away. After grabbing the chains from Beckum's neck, Fonseca ran to and entered the gold Nissan. Duran, who was driving, "took off." Beckum later identified both Duran and Fonseca from a photographic lineup and at trial.

2. Robbery of Julio R. and Duran's evasion of police officers.

On December 3, 1999, appellants robbed 16-year-old Julio R. as he walked home from school. Appellants were passengers in a car that pulled up alongside Julio R. Fonseca approached Julio R. with a baseball bat and asked, "[W]here are you from?" Julio R. understood this as a request to identify his gang affiliation. Julio R. replied, "Nowhere," meaning he was not a gang member. Fonseca motioned at Julio R. with the bat. Duran pointed a gun at Julio R. during the robbery, forcing him to surrender his watch. Julio R. testified that Fonseca had "F13" tattooed at the corner of his eye.

On December 6, 1999, Duran, driving the gold Nissan, led Los Angeles police officers on a brief high-speed chase that ended when Duran crashed into a van. Fonseca had exited the car and fled from officers at the outset of the chase. Officers found a handgun lying on the ground outside the car at the crash scene.

3. Evidence relating to the criminal street gang enhancement.

Officer Steve Burciag 10/6-year veteran of the Los Angeles Police Department who was assigned to an anti-gang unit, testified as an expert on gangs in the Los Angeles area. Burciaga's duties included gathering gang intelligence and documenting information on gang members. Burciaga had interviewed hundreds of gang members, including over 100 members of the Florencia 13 gang, in the Los Angeles area. He had also arrested gang members associated with narcotics activity, investigated gang-related homicides, and had worked as a gang detective investigating gang-related crimes. According to Burciaga, the Florencia 13 was a large, well-established Hispanic gang with over 200 members; it claimed as its territory the area around Harvard Park, among other areas. The Florencia 13 was identified with distinctive hand symbols and graffiti.

Burciaga opined that the Florencia 13 gang had "several" primary activities; the "main one" was "putting fear into the community" by committing robberies, assaults with deadly weapons, and narcotics sales. Community intimidation serves a gang's interests by causing witnesses to refuse to testify against gang members. Robberies serve a gang's interests because the robbery proceeds are often distributed among the gang's members. The perpetrators of a robbery gain stature in the gang by showing their willingness to commit crimes for the gang. Narcotics sales benefit a gang by providing a source of income for gang members.

Burciaga had spoken with Duran and Fonseca on numerous occasions. Both had admitted to membership in the Florencia 13 gang. Burciaga explained that the Florencia 13 used "F13" as a symbol identifying the gang. Tattoos represented a commitment to one's gang, and an "F13" on the face was an outward statement claiming Florencia 13 gang membership. Burciaga testified that appellants both had tattoos related to gang membership.

When given a hypothetical based upon the facts of the case, Burciaga opined that the robberies were committed for the benefit of the Florencia 13 gang. Such robberies would benefit the gang by providing financial support, controlling the gang's territory, and generally intimidating local residents.

Burciaga had personally spoken with Octavio Aldaco and had reviewed Aldaco's "rap sheet" and other records. Aldaco was a Florencia 13 gang member and had been a member in 1997. Burciaga's opinion was based upon his personal experiences and dealings with Aldaco, his discussions with other officers who had had contacts with Aldaco, and Aldaco's personal admissions to Burciaga that he was a Florencia 13 member. A certified court minute order dated May 18, 1998, documented that Aldaco had pleaded guilty and had been convicted of felony possession of cocaine base for sale (Health & Saf.Code, § 11351.5) in case number BA164005 on that date. Over appellants' hearsay objections, the People introduced the minute order into evidence. Burciaga believed, based upon his contacts with Aldaco, his experience, and his review of the minute order, that the Octavio Aldaco referenced therein was the same Octavio Aldaco he knew to be a Florencia 13 gang member.

B. Procedure.

Trial was by jury. Appellants were convicted of the second degree robberies of Beckum and Julio R. (§ 211). The jury found true allegations that the robberies were committed on behalf of a criminal street gang (§ 186.22, subd. (b)(1)); that a principal personally used a firearm (§ 12022, subd. (a)(1)); that Duran personally used a firearm in the robbery of Julio R. (§§ 12022.53, subd. (b), 12022.5, subd. (a)(1)); and that Fonseca personally used a firearm during commission of the robberies (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)).³ The jury further found Duran guilty of evading a police officer with willful disregard (Veh.Code, § 2800.2, subd. (a)). The trial court found true an allegation that Fonseca had suffered a conviction for robbery, a serious or violent felony within the meaning of the Three Strikes law (§§ 667, subds.(b)—(i), 1170.12) and section 667, subdivision (a)(1). It sentenced Fonseca to a term of 33 years, 4 months in prison pursuant to the Three Strikes law, and Duran to a total term of 23 years in prison. It also imposed various fines.

III DISCUSSION

A. Sufficiency of the evidence to prove the gang enhancements.

Appellants contend the evidence was insufficient to support the true findings on the gang enhancements, because the People failed to prove that (1) the Florencia 13 gang engaged in a pattern of criminal activity; and (2) one of the gang's primary activities was a statutorily enumerated criminal offense. We conclude the evidence adduced at trial was sufficient to prove both challenged elements of the gang enhancement.

1. Standard of review.

When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine "`whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (...