People v. Loeun

• Decision Date: 22 December 1997
• Docket Number: No. S046514,S046514
• Parties: , 947 P.2d 1313, 97 Cal. Daily Op. Serv. 9562, 97 Daily Journal D.A.R. 15,325 The PEOPLE, Plaintiff and Respondent, v. Chanda John LOEUN, Defendant and Appellant.
• Court: California Supreme Court

Page 776

69 Cal.Rptr.2d 776

17 Cal.4th 1, 947 P.2d 1313, 97 Cal. Daily Op. Serv. 9562,

97 Daily Journal D.A.R. 15,325

The PEOPLE, Plaintiff and Respondent, v. Chanda John LOEUN, Defendant and Appellant.

No. S046514.

Supreme Court of California.

Dec. 22, 1997.

Rehearing Denied Jan. 21, 1998.

[17 Cal.4th 4] [947 P.2d 1314] Lori Klein, under appointment by the Supreme Court, Santa Cruz, for Defendant and Appellant.

Francis J. Bardsley, Public Defender (San Diego), Greg Maizlish, Deputy Public Defender, and Stephen Gilbert, Santa Monica, as Amici Curiae on behalf of Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Stan M. Helfman and Violet M. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, Justice.

In this case we revisit the Street Terrorism Enforcement and Prevention Act, also known as the STEP Act, which was recently before us in People v. Gardeley (1996) 14 Cal.4th 605, 59 Cal.Rptr.2d 356, 927 P.2d 713.

As we noted in People v. Gardeley, supra, 14 Cal.4th at page 615, 59 Cal.Rptr.2d 356, 927 P.2d 713, the Legislature enacted the STEP Act in 1988 for the express purpose of eradicating criminal activity by street gangs. (Pen.Code, § 186.21; further undesignated statutory references are to the Penal Code.) Among the STEP Act's provisions is one imposing additional penalties for felony offenses committed "for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22, subd. (b)(1), italics added.) The act defines "criminal street gang" as any ongoing association that consists of three or more persons, that has a common name or common identifying sign or symbol, that has as one of its "primary activities" the commission of certain specified criminal offenses, and that engages through its members in a "pattern of criminal gang activity. " (Id., subd. (f), italics added.) A gang engages in a "pattern of criminal gang activity" when its members participate in "two or more" specified criminal offenses (the so-called "predicate offenses") that are committed within a certain time frame and "on separate occasions, or by two or more persons." (Id., subd. (e).)

We held in People v. Gardeley, supra, 14 Cal.4th at page 625, 59 Cal.Rptr.2d 356, 927 P.2d 713, that the prosecution there had proven a "pattern of criminal gang activity" through evidence pertaining to the charged offense and one other offense committed on a prior occasion by the defendant's fellow gang member. At issue here is whether the requisite "pattern" can also be established by evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member. We conclude this is permissible.

I

The prosecution charged defendant with assaulting Jose Ivan Corral with a deadly weapon (§ 245, subd. (a)(1)), and further alleged that defendant personally inflicted great bodily injury on the victim (§ 12022.7) and committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). These are the relevant facts:

On May 27, 1993, Ariel Ramirez was working at a gasoline station in San Jose when three Cambodian males came in to buy cigarettes. Each one of the Cambodians had a blue bandanna hanging out of his back pants pocket; one of them stared at Ramirez and seemed to take particular note of a red shop rag (used to clean up oil spills) hanging from his pants pocket. They then left, but two of A short while later, Ramirez saw his cousin Ivan Corral driving by the station and hailed him over. With Corral were Ramirez's brother, two other cousins, and a friend. Ramirez described his encounter with the Asian males and said he thought they could be found in the adjacent churchyard. Leaving Ramirez at the gas station, Corral and the others approached the church on foot. Corral spotted a car with its trunk open and several Asian youths huddled around it, and he saw someone in the group take a wooden baseball bat out of the car trunk. Suddenly, about 15 members of the Asian group started running toward him. Defendant was part of this group and was wielding the baseball bat. A few of the others displayed knives, one carried a tire iron, and another had a pool cue. Corral and his 4 companions turned and ran back to the gasoline station pursued by as many as 40 or 50 Asian youths.

                [947 P.2d 1315] them returned a few minutes later accompanied by several other Asian males.  The person who earlier had stared at Ramirez asked him, "What's up?"   One of the others added, "Crip cuz.  You got a problem?"   The group then left and walked toward a nearby church and recreation center
                

Corral picked up a metal pipe for protection but told his pursuers that he did not want any trouble. Defendant, the Asian group's apparent leader, responded: "Fuck that Norte shit." Corral understood the Spanish word "Norte" to be a reference to certain Hispanic street gangs from the northside of Los Angeles that proclaim their gang membership by wearing red clothing. Corral denied gang membership, saying, "I'm not in no click [sic]."

In an effort to avert violence, Corral put the metal pipe down and suggested to defendant that they "just talk it over." Defendant said, "No." One of defendant's companions uttered the word "Crip"; someone else asked, "You want to mess with Crips?"; and defendant added, "I'm a Cambodian Crip." This latter comment prompted Corral to pick up the metal pipe he had put down earlier. Defendant then said, "Fuck this shit," and moved forward. When Corral stepped back, he tripped over a bicycle. While Corral was on the ground, defendant hit him with the baseball bat, first in the head, and then on the shoulder and arm. Seconds later, another member of the Asian group, Chad Hen, struck Corral in the ribs with a tire iron.

Corral managed to break free from his assailants and ran to a convenience store. From there, he was taken by ambulance to a local hospital, where he was treated for head injuries and abrasions.

That same day, officers of the San Jose Police Department arrested defendant and Chad Hen in the church yard. The chief investigating officer was Detective Patrick Boyd of the department's gang unit. He talked to Hen, who had hit Corral with the tire iron. Hen admitted being a member of "CWA," which stands for "Cambodians With Attitude." Detective Boyd also spoke with defendant, ¹ who likewise admitted being a member of CWA and a "Crip"; defendant showed Boyd a tattoo on his arm spelling out the word "CRIPS." Other Asian youths at the scene identified themselves to Boyd as CWA members; some made a hand sign by cupping their hands with the thumb up and index finger curved to form the letter "C" to signify membership in a "Crip" gang.

At the time of trial, Detective Boyd was a 13-year veteran of the San Jose Police Department, and for the past year had been assigned to a special unit investigating crimes associated with criminal street gangs. As a result of his experience, Boyd was thoroughly familiar with the practices and memberships of the gangs active in the San Jose area. Boyd described CWA's primary activity as committing assaults with deadly weapons. ² CWA is a "Crip" gang, whose The jury convicted defendant of assault with a deadly weapon (§ 245, subd. (a)(1)), and found true the allegations that defendant had personally inflicted great bodily injury (§ 12022.7) and had committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced defendant to state prison for eight years (a three-year term for the assault with a deadly weapon, a three-year enhancement for personally inflicting great bodily injury, and a two-year "street gang" enhancement).

[947 P.2d 1316] members use blue clothing to indicate their gang [17 Cal.4th 7] affiliation. Their rivals, the "Blood" gangs, use red as their gang color. CWA's "turf" is the area in and around the church-yard near the gas station where the attack in this case took place. Boyd also explained that gangs commonly protect their turf by attacking those who come into the area sporting the color of a rival gang.

On appeal, defendant challenged the sufficiency of evidence pertaining to the two-year "street gang" enhancement that the trial court imposed under section 186.22. Specifically, he contended that if the prosecution relies on the charged crime for one of the "two or more" predicate offenses statutorily required to establish the requisite "pattern of criminal gang activity," the prosecution must in addition present evidence of at least one prior offense of gang activity. Therefore, defendant argued, proof of the offense charged against him and another offense committed on the same occasion by a fellow gang member, as occurred here, was insufficient to establish the requisite "pattern." The Court of Appeal disagreed and affirmed the judgment in its entirety. We granted defendant's petition for review.

II

At the time of the criminal events here, the STEP Act in subdivision (b)(1) of section 186.22 provided in relevant part: "[A]ny person who is convicted of a felony which is 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one, two, or three years at the court's discretion." ³ Therefore, a defendant is subject to these increased penalties only if the charged crime was "committed for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22, subd. (b)(1), italics added.)

A "criminal street gang," as defined in former...