People v. Simmons
| Decision Date | 25 March 2022 |
| Docket Number | B307747 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RON SIMMONS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA464696, Curtis B. Rappe, Judge. Judgment of conviction affirmed and remanded with directions.
Michael S. Evans, under appointment by the Court of Appeal for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Kathy S. Pomerantz, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted Ron Simmons on one count of actively participating in a criminal street gang conspiracy, 10 counts of first degree burglary, two counts of first degree robbery, two counts of attempted first degree robbery, and one count each of torture and mayhem in connection with one of the burglaries. The jury also found true gang allegations on each of the burglary, robbery, and attempted robbery counts. The trial court sentenced Simmons to a determinate term of 46 years 4 months, and a concurrent indeterminate term of 15 years to life.
Simmons contends substantial evidence did not support most of his convictions or the true findings on the gang allegations on the torture and mayhem convictions. Simmons also contends the trial court erroneously imposed an additional 35 years of imprisonment. And Simmons contends the court should have stayed execution of the sentence on his conviction for actively participating in a criminal street gang conspiracy (count 1). We agree with the last contention only and remand for the trial court to correct this and another sentencing error.
Meanwhile while this appeal was pending, the Legislature enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731 § 1.3), which, among other changes to the sentencing laws, requires that facts underlying any circumstance in aggravation used to impose the upper term must have been stipulated to by the defendant or have been found true beyond a reasonable doubt. Simmons argues Senate Bill No. 567 applies retroactively to his sentence and asks us to direct the trial court to impose the middle term instead of the upper term on two of his convictions. We agree Senate Bill No. 567 applies retroactively and direct the trial court to resentence Simmons under this and any other newly enacted ameliorative legislation that may apply.
Between October 2017 and October 2018 Simmons and other members of the Six Deuce Brims criminal street gang committed a series of burglaries in the San Gabriel Valley. Because in four of the burglaries the occupant of the residence was home, Simmons and his fellow gang members also committed, or attempted to commit, robbery. In two of those four robberies or attempted robberies, they brutally attacked the victims.
Simmons and his confederates generally followed a common plan. They convened at the Long Beach home of Deondra Johnson, a member of the Six Deuce Brims gang, late in the afternoon or early in the evening, and drove 15 to 20 miles to a city in the San Gabriel Valley. After nightfall, without knocking on the door they broke a glass door or window to get into the house; ransacked the rooms and stole as much jewelry, cash, and other transportable items as they could; usually left within 10 minutes; and drove back to the Long Beach area before dispersing. If people were home during the burglary, the gang members intimidated, threatened, and sometimes beat them to learn where they kept cash and other valuables. None of the victims could identify the perpetrators.
Detective Andrew Yzabal monitored social media activity of Six Deuce Brims gang members, analyzed the records of cell phones associated with members of the gang, and found evidence implicating Simmons in the burglaries and robberies. Based on his analysis of cell phone records, Detective Yzabal concluded that every time members of the Six Deuce Brims gang left their neighborhood in south central Los Angeles and traveled to the San Gabriel Valley, the open lines between the gang members corresponded to crimes "happening close" to those areas of phone activity. Call detail records showed that the phones of Simmons and other Six Deuce Brims gang members traveled to each targeted residence near the time of the burglary and subsequently traveled back to the neighborhood of the gang or one of its members. Video surveillance from two of the burglarized homes and from the apartment of one of the gang members provided further incriminating evidence.
A grand jury indicted Simmons on one count of actively participating in a criminal street gang conspiracy and multiple counts of burglary, robbery, and related crimes. The indictment alleged Simmons committed most of the offenses for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members. (Penal Code, § 186.22, subd. (b).)[1] The People proceeded to trial on the following charges: one count of actively participating in a criminal street gang conspiracy (§ 182.5, count 1);[2] 11 counts of first degree burglary of an inhabited dwelling house (§ 459, counts 4, 5, 6, 7, 9, 11, 13, 15, 17, 18, and 19);[3] two counts of first degree residential robbery (§ 211, counts 3 and 16); two counts of attempted first degree residential robbery (§§ 211, 664, counts 8 and 12); elder abuse of one of the victims, Bong Rhee (§ 368, subd. (b)(1), count 10); mayhem of another victim, Tran Truong (§ 203, count 14); and torture of Truong (§ 206, count 20).[4]
The victims of the burglaries and robberies testified about what they saw when the intruders entered their home or, if they were not home, what they found when they returned. The mode of entry was usually a smashed glass door or window in the back of the house. The victims who were present when the burglaries occurred described the perpetrators as two to three young men who wore black clothing, black shoes, and a mask that revealed only the black skin around the eyes underneath the mask. The two victims who suffered physical injuries, Bong Rhee and Tran Truong, also described how they were attacked.
Rhee, an 84-year-old man, testified that, after he went to bed at 9:00 p.m. on August 24, 2018, he woke up to flashlights in his room. Two men had entered his home, and one of them held a steel crowbar. Both men proceeded to beat him with their hands. Rhee fell to the ground, and the men continued to beat, kick, and stomp on him. The two men ransacked his drawers and searched his closets. At some point, Rhee lost consciousness.
Truong, a 59-year-old woman who was five feet one inch tall, testified that on September 10, 2018, two men woke her up from deep sleep sometime after 9:00 p.m. The men, who appeared "thin and tall," were completely covered in black. One of them carried a yellow crowbar, approximately one to two feet long. The man without the crowbar pulled her up from the bed, pushed her to the ground, and asked, "Where is your money?" Truong replied, "No, I don't have any money." When Truong looked at the man, the man hit her in the eyes multiple times and said, "You cannot look at me." When Truong tried to open her mouth to cry because she "was in so much pain," the man hit her mouth and said, "You cannot cry, you cannot cry." The man pinned her to the ground with one foot and repeatedly kicked her and stomped on her with the other. Truong thought they were going to beat her to death. The man then covered Truong's face with a blanket and hit her in the head. Meanwhile, the other man started "striking everywhere" and searched the closets.
Before the men left, they pushed a chest of drawers onto Truong's back. The men took $3, 000 in cash and jewelry. Truong suffered a blood bruise to her head, impaired vision, and broken ribs. She also lost seven or eight teeth.
In addition to the victims' testimony, three gang experts testified about the Six Deuce Brims' culture of violence the modus operandi its members followed when committing burglaries, the cell phone records that showed Simmons's proximity to each of the burglaries and robberies, and surveillance video and social media posts that further established Simmons participated in the crimes. Officer Dexter Navarro testified that the Six Deuce Brims, or Harvard Park Brims, was a criminal street gang named after its territory of 62nd Street and Harvard Park and that the gang aligns with other Brims gangs in the surrounding neighborhoods of south central Los Angeles. He stated the primary activities of the gang are vandalism, armed robberies, burglaries, carjackings, shootings, narcotic sales, and murder. He explained a gang member earns respect by "putting in work" or "doing licks," which in "street vernacular" meant "robbing or doing shootings." He stated that when a "young gangster" earns respect he can elevate his status and become a leader of a crew to go out and commit other crimes and that robberies and burglaries can earn a gang member respect. Officer Navarro explained, "The more violent the act, . . . the more respect you get." Detective Allen Hsiao testified that members of the Six Deuce Brims gang establish authority and create an atmosphere of fear and intimidation that will make...
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