People v. Galvan, A077291

• Decision Date: 23 December 1998
• Docket Number: No. A077291,A077291
• Citation: 68 Cal.App.4th 1135,80 Cal.Rptr.2d 853
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 9364, 98 Daily Journal D.A.R. 13,055 The PEOPLE, Plaintiff and Respondent, v. Thomas GALVAN, Jr., et al., Defendants and Appellants.

Page 853

80 Cal.Rptr.2d 853

68 Cal.App.4th 1135, 98 Cal. Daily Op. Serv. 9364,

98 Daily Journal D.A.R. 13,055

The PEOPLE, Plaintiff and Respondent, v. Thomas GALVAN, Jr., et al., Defendants and Appellants.

No. A077291.

Court of Appeal, First District, Division 4, California.

Dec. 23, 1998.

Review Denied March 31, 1999.

Certified for Partial Publication. ^*

Mary G. Swift, Mill Valley, Robert Fiedler, San Francisco, for appellants.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Christina V. Kuo, Deputy Attorney General, for respondent.

REARDON, J.

A jury convicted appellants Thomas Galvan, Jr. and Jose Juan Madrid of felony assault and second degree robbery. Enhancements alleging the infliction of great bodily injury, inflicting of great bodily injury causing coma or paralysis and criminal street gang activity were also found to be true. (See PEN.CODE, §§ 186.22¹, subd. (b)(1), 211, 245, subd. (a)(1), 12022.7, subds. (a)-(b).) Galvan was committed to state prison for 10 years and ordered housed at the California Youth Authority (CYA) (Welf. & Inst.Code, § 707.2); Madrid received a 12-year term in state prison. Madrid appeals, contending that (1) evidence of the charged offenses was improperly used to prove a gang enhancement; and (2) the ban on multiple punishment precludes imposition of consecutive gang and great bodily injury enhancements. Galvan also appeals, contending that (3) his sentence must be remanded to the trial court for an order directing a fitness evaluation by the CYA. Both (4) challenge the sufficiency of evidence to support the gang enhancement and (5) contend that the jury instructions on the gang enhancement were incorrect. We affirm both convictions, including the sentences.

I. FACTS

On the night of May 2, 1996, sixteen-year-old Dylan Katz was walking his dog. Appellants Thomas Galvan, Jr. and Jose Juan Madrid--age 15 and 17, respectively--pulled up next to him, got out of their car and asked "What color do you bang?" When Katz replied, "Nothing," they said, "Wrong answer," and, led by Madrid, the two young men brutally attacked Katz and injured his dog. Katz lapsed into a coma for 10 weeks and woke up later in the hospital. He was beaten about the head and shoulder; the damage to his face was so severe that his eyelids were swollen shut. He suffered brain damage and was temporarily brain dead. By the time of trial, he was still unable to walk. He identified Galvan and Madrid--persons who were known to him before the attack and whom he identified in court--as his attackers.

Galvan and Madrid were charged by information with attempted murder and robbery. (See §§ 187, subd. (a), 211, 664.) The information also alleged sentence enhancements for gang activity and for infliction of great bodily injury resulting in coma and paralysis. (See §§ 186.22, subd. (b)(1), 12022.7, subds. (a)-(b).) At trial, a law enforcement officer who was an expert on local gangs testified that West Side Windsor was a gang of at least 20 members and that Galvan and Madrid were both members of this gang. The officer also opined that the current offenses of attempted murder, assault and robbery alone constituted evidence of the primary activities of the gang. Other evidence of gang involvement by Galvan and Madrid was shown, as well as evidence that the gang had formed before the Katz attack.

Galvan and Madrid moved for an acquittal on all charges and enhancements, but the trial court denied their motion. (See § 1118.1.) Madrid's renewed motion for acquittal was also denied. The parties stipulated that Katz suffered great bodily injury causing coma. Ultimately, the jury acquitted them of attempted murder, but convicted each of the lesser included offense of assault with a deadly weapon or by means of force likely to produce great bodily injury. Both were also convicted of second degree robbery and the jury found the enhancement allegations all to be true. (See §§ 186.22, subd. (b)(1), 187, subd. (a), 211, 245, subd. (a)(1), 664, 12022.7, subds. (a)-(b).) Galvan was committed to state prison for ten years--a midterm of three years for robbery, a five-year enhancement for infliction of great bodily injury resulting in coma or paralysis, and a two-year enhancement for gang activity. Sentence on the assault conviction and the four remaining enhancements were stayed. He was ordered to be housed at CYA. Madrid was sentenced to twelve years in state prison--an upper term of five years for robbery, a five-year enhancement for infliction of great bodily injury resulting in coma or paralysis, and a two-year enhancement for gang activity. Again, sentence on the assault conviction and the four remaining enhancements were stayed. (See former §§ 654 [as amended by Stats.1976, ch. 1139, § 264, p. 5137], 1170.1, subd. (e) [as amended by Stats.1994, ch. 1188, § 12.7.])

II. GANG ENHANCEMENT

A. Proof Based on Charged Offenses

1. Facts

On appeal, Galvan and Madrid raise a variety of challenges to the gang activity enhancements found to be true. They first contend that evidence of the charged offenses was improperly used to prove gang enhancement. They argue that the trial court improperly allowed the jury to consider evidence of current charged offenses when determining whether the West Side Windsor gang had as one of its primary activities the commission of one of the offenses enumerated in subdivision (e) of section 186.22. At trial, Galvan and Madrid argued that the prosecution could not use evidence of the current offenses to establish the primary activities element of the gang enhancement. The trial court disagreed, allowing the prosecution to rely on evidence of the current offenses to prove this enhancement element. A law enforcement expert testified that West Side Windsor was a gang and offered evidence that Galvan and Madrid were both members of the gang. He also opined--over defense objection--that the gang had attempted murder, assault and robbery as its primary activities, based solely on the then-pending charges. Galvan and Madrid moved for an acquittal on the gang enhancement at the close of the prosecution's case, but the motion was denied. During closing argument, the prosecutor noted the officer's testimony about primary activities. Galvan and Madrid argued that the jury should not find a primary activity based only on the current offenses and should instead reject the officer's expert testimony to the contrary. The jury was instructed that it was not bound to accept an expert opinion, but could give that testimony whatever weight it chose or to disregard it completely. It was also instructed that in order to be a criminal street gang, the group had to have as one of its primary activities, the commission of murder, robbery assault with a deadly weapon, or assault be means of force likely to produce great bodily injury.

2. "Primary Activities"

The sentence of "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" must be enhanced by one, two or three years. (§ 186.22, subd. (b)(1); see In re Elodio O. (1997) 56 Cal.App.4th 1175, 1179, 66 Cal.Rptr.2d 95.) The Legislature defined the term "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in [subdivision (e) ], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f), italics added; see People v. Loeun (1997) 17 Cal.4th 1, 4, 8, 69 Cal.Rptr.2d 776, 947 P.2d 1313; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1000, 279 Cal.Rptr. 236.) In 1996, at the time of the commission of this offense, the Legislature defined the term "pattern of criminal gang activity" as "the commission, attempted commission, or solicitation of two or more [enumerated] offenses, provided at least one of those offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses are committed on separate occasions, or by two or more persons...." (Former § 186.22, subd. (e) [as amended by Stats.1995, ch. 377, § 2].) Among the enumerated offenses are attempted murder, robbery and assault with a deadly weapon or by means of force likely to produce great bodily injury. (Former § 186.22, subd. (e)(1)-(3).)

The California Supreme Court has twice been called upon to determine the evidence necessary to establish the elements of a gang enhancement. In each case, it examined the specific language of section 186.22 to determine the questions presented. (See People v. Loeun, supra, 17 Cal.4th at pp. 8-9, 69 Cal.Rptr.2d 776, 947 P.2d 1313; People v. Gardeley (1996) 14 Cal.4th 605, 620-622, 59 Cal.Rptr.2d 356, 927 P.2d 713.) When interpreting statutes, our role is limited to ascertaining the Legislature's intent in order to further the purpose of the law. To do so, we first look to the words of the statute themselves. If they are clear and unambiguous, the Legislature is presumed to have meant what it said. The plain meaning of the language governs and no statutory construction is needed. We follow the Legislature's intent and the plain words of its statutes regardless of what we may think of the wisdom, expediency or policy of the enactment. We must construe words in context and harmonize statutes--both internally and with each other--to the extent possible. We will decline to follow the plain meaning of the statute only if to do so would frustrate its purpose or...