People v. Gomez

• Decision Date: 08 February 2011
• Docket Number: Certified for Partial Publication. ,No. E049008.,E049008.
• Citation: 11 Cal. Daily Op. Serv. 1806,121 Cal.Rptr.3d 475,2011 Daily Journal D.A.R. 21,192 Cal.App.4th 609
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carlos GOMEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

192 Cal.App.4th 609 121 Cal.Rptr.3d 475 11 Cal. Daily Op. Serv. 1806 2011 Daily Journal D.A.R. 2149 The PEOPLE, Plaintiff and Respondent, v. Carlos GOMEZ, Defendant and Appellant. No. E049008. Certified for Partial Publication.^* Court of Appeal, Fourth District, Division 2, California. Feb. 8, 2011.

**477 Laura Schaefer, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Garrett Beaumont and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

*613 OPINION

KING, J.

I. INTRODUCTION

Defendant Carlos Gomez and three others assaulted Nicasio Estrada at an apartment complex where Estrada lived. During the attack, one of the assailants obtained the keys to Estrada's pickup truck. After beating Estrada, the four men left the apartment complex in defendant's car, then returned 10 or 20 minutes later. By that time, Estrada was inside his apartment. Two of the four **478 assailants got into Estrada's truck and drove away.

Defendant was charged with carjacking (count 1; Pen.Code, § 215, subd. (a)),¹ robbery (count 2; § 211), assault with a deadly weapon (count 3; § 245, subd. (a)(1)), and active participation in a criminal street gang (count 4; § 186.22, subd. (a)). The People also alleged the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang under section 186.22, subdivision (b). The People further alleged defendant had one "strike" conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) and one prior serious felony (§ 667, subd. (a)).

A jury convicted defendant of the carjacking count, simple assault (a lesser included offense of assault with a deadly weapon), and active participation in a criminal street gang. He was acquitted of the robbery charge. The jury also found true the allegations that the carjacking and assault crimes were committed for the benefit of a criminal street gang. In a bifurcated trial, the court found true the allegations of the prior convictions. He was sentenced to a total term of 23 years in state prison.

Defendant contends: (1) the evidence was insufficient to establish either the intent or immediate presence elements of carjacking; (2) the court erred in allowing into evidence his statement made during a booking interview that he was a member of a gang; and (3) the court erred in denying his motion to bifurcate the gang enhancements and sever the gang participation count. We affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Prosecution Case

Nicasio Estrada testified as follows. He was in charge of maintenance at the apartments where he lived on Philbin Street in Riverside (the Philbin *614 apartments). At approximately 1:00 in the morning of May 28, 2007, he left his apartment to check the grounds of the apartment complex to see that windows and doors on unoccupied apartments were closed. He carried a flashlight. His wallet, money, and keys were in his pant and jacket pockets. His pickup truck was parked about 10 feet away from his apartment. As he was walking back toward his apartment, a white car coming from the street stopped approximately 25 to 40 feet from him. There were four or five people inside the car. Four men got out of the car and came up to him, "[v]ery close up and very aggressively." One of the men, identified later as Anthony Garcia, "came nose to nose" with Estrada. Defendant was the man farthest away from him—about four feet behind Garcia. The other two men were subsequently identified as Manuel Zamora (Manuel) and Raymond Zamora (Raymond).

According to Estrada, the men made "hand signs like gangsters would make." Garcia asked Estrada for his name and either (1) did he live there or (2) where he was from.² Estrada said he did live there and that they did not. Garcia then began hitting him. Estrada ran to a stairway. The men ran after him and knocked him down. All four of the men hit him with their fists all over his body. He got up to **479 defend himself, but was knocked down again. At some point during the attack, defendant said to the others: " 'Finish him.' "

Defendant twice threw a concrete block or brick at Estrada. The first time, he hit Estrada on his hip or "thorax." The second time, he threw the block at Estrada's head. Although Estrada was able to partially deflect the block the second time, it brushed against his face under his right eye.

At some point, Raymond obtained the keys to Estrada's truck. As will be discussed below, there is evidence to support inferences that Raymond took the keys directly from Estrada during the attack, that he took Estrada's jacket during the attack and later found the keys in the jacket pocket, and that he found the keys on the ground as they were leaving.

According to Estrada, something "alerted" the attackers and they ran to their car and drove away. He went back to his apartment and called 911. Approximately 10 or 20 minutes after the attack, he saw the car with the men return. He watched them through a window from inside his apartment. *615 Manuel and Raymond got out of the car and walked toward his apartment. Defendant remained in or near the car. Estrada made eye contact with them. They tried to enter the apartment through the front door to (according to Estrada) "assault us inside." The Zamoras were not able to get in.³ They then went to his truck. One of the Zamoras opened the truck with a key. They both then got into the truck and drove away.

Shortly after the attack, police found Estrada's truck on Calmhill Drive, approximately two miles from the Philbin apartments. A police officer testified that he saw four people "pulling stuff out of" the vehicle and tossing it to the ground. The four were detained. They were Garcia, Manuel, Raymond, and defendant. Police took Estrada to the location on Calmhill Drive where he identified the detainees as the people who attacked him.

Following defendant's booking at the Robert Presley Detention Center, he was interviewed by Mike Munoz, a sheriff's deputy and "classification officer." Deputy Munoz asked defendant his name, date of birth, and whether he had any gang affiliations. Defendant told Deputy Munoz his name, birthdate, and that he was affiliated with Arlanza. Deputy Munoz then asked defendant if he was an active member, associate, or former member of the gang. Defendant told Deputy Munoz that he was an active member and used the moniker Scooby. Deputy Munoz also took note of "Arlanza" and "Traviesos" tattoos on defendant's chest and stomach.

Riverside Police Detective James Simons testified as a gang expert. He testified that the Arlanza 13 gang is an Hispanic gang that claims a certain area in the City of Riverside, including John Bryant Park. The Philbin apartments are in the middle of Arlanza 13 territory. He stated that Traviesos is a clique, or subset, of Arlanza 13. The primary activities of the Arlanza 13 gang include narcotics violations, grand theft, weapons violations, and violent assaults against rival gang members. Detective Simons said he was familiar with Garcia and the Zamoras and that each had previously admitted membership in the Arlanza 13 gang.

**480 Detective Simons opined that the attack on Estrada was committed for the benefit of, at the direction of, and in association with Arlanza 13. He explained that the "association" is shown by the fact that four gang members *616 were committing the crime together. The crime was committed at the direction of Arlanza 13 because defendant told the "younger members to finish [Estrada] off." Finally, the crime benefits the gang because it occurred within the area claimed by Arlanza 13 and instills fear within the members of the community and, therefore, respect for the gang.

Detective Simons testified that a gang member who decides to disassociate himself from the gang "would have to move out of the area where this gang exists...." Although it is possible to continue to live in Arlanza 13 territory and be "retired" from the gang, a member cannot "pick and choose" when to be in the gang. If you are with "fellow gang members and something happens where you're attacked by rival gang members, you're expected to jump in and fight those rival gang members with your fellow members. If you don't, then you can be assaulted yourself and get kicked out of the gang."

Detective Simons opined that defendant was an active Arlanza 13 gang member on the date of the attack on Estrada. He based this opinion on defendant's admissions of gang membership to police officers in 1994 and 2005, defendant's arrest for possession of narcotics in 2003 while in the presence of another gang member, defendant's arrest in 1994 for injuring a rival gang member in the company of two other gang members, defendant's gang tattoos, and "most importantly, his ongoing association with Arlanza gang members and his ongoing active participation in the types of crimes that they commit, which was involved in this case." ⁴

B. Defense Case

In his defense, defendant offered testimony by his former parole officer, a former supervisor where defendant worked, his mother, his girlfriend, a witness to the attack, and himself. His parole officer from July 2005 until May 2007 testified that he never saw any evidence that defendant was involved in gang activity. The supervisor testified that defendant worked for a ceramic tile manufacturer from 2005 until his arrest in 2007, never had any problems at work, and always showed up on time.

Defendant's mother testified defendant lived with her after he was paroled in 2005. She said that defendant had turned over a new leaf and got a job. He had a girlfriend, who moved in with them, and fathered a child. She did not see him hang out with gangs. Rather, he worked and spent time with his *617 family. Defendant's girlfriend testified she was with defendant every...