California Court of Appeal Sep 9, 2013 No. E055696Unpublished
Filed 9/9/13 P. v. Mora CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055696
v. (Super.Ct.No. RIF146010)
CESAR ALBERT MORA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Gary W. Brozio and Ifeolu E.
Hassan, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
A jury found defendant Cesar Albert Mora guilty of assault with a deadly weapon,
a knife, active participation in a criminal street gang, and possession of a shank while in
custody. The jury also found a gang enhancement true on the assault conviction and in a
B. Substantial Evidence Supports the Primary Activities Element of the Active Gang
Participation Conviction
Active participation in a criminal street gang is a crime. (§ 186.22, subd. (a).) A
“„criminal street gang‟ means 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 [33] criminal acts enumerated in . . . subdivision (e) [of
section 186.22], 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).)
Thus, an active gang participation conviction requires proof that the primary
activities of the gang consists of one or more criminal acts enumerated in section 186.22,
subdivision (e). These criminal acts or crimes include assault with a deadly weapon,
robbery, unlawful homicide or manslaughter, the sale of controlled substances, burglary,
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felony fraudulent use of an access card or account information, and unlawful use of
personal identifying information. (§ 186.22, subd. (e)(1)-(4), (11), (28), (29).)
Defendant claims the prosecution presented insufficient evidence that the primary
activities of the Southside Onterio gang system, including the Black Angels, consisted of
one or more criminal acts listed in section 186.22, subdivision (e). On this basis, he
claims the evidence is insufficient to support his active gang participation conviction. As
we explain, Officer Devey‟s testimony was sufficient to establish the primary activities
element of the active gang participation conviction.
Sufficient proof of a criminal street gang‟s primary activities may be based on
evidence that its members have “consistently and repeatedly” committed one of more
criminal acts listed in section 186.22, subdivision (e). (People v. Sengpadychith (2001)
26 Cal.4th 316, 324.) Past and present conduct by gang members is relevant in
determining the group‟s primary activities, and expert testimony based on an adequate
foundation may be sufficient to establish the group‟s primary activities. (Id. at pp. 323-
324; People v. Gardeley (1996) 14 Cal.4th 605, 620.)
According to Officer Devey, the Black Angels are the “hardcore” members of the
Southside Onterio gang system, “the ones who have been promoted . . . [and] have put in
enough work for the gang,” and defendant was a self-admitted member of the Black
Angels. Putting in work is the way a gang member gains respect in the gang system, and
this can include “anything from selling drugs . . . [to] stabbings to shootings,” and a gang
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member generates revenue for the gang by committing robberies, burglaries, selling
narcotics, and committing identity and check fraud.
Officer Devey based his testimony on his conversations with other Southside
Onterio gang members, his investigation of numerous crimes committed by members of
the gang, and his discussions with other law enforcement officers. He also testified
concerning several predicate offenses committed by members of the Southside Onterio
gang during the two-year period preceding the September 28, 2008, stabbings. These
included possession of a firearm by a felon, criminal threats, carjacking, receiving stolen
property, and drug sales. (§ 186.22, subd. (e)(4), (21), (24), (31).)
Based on Officer Devey‟s testimony, the jury could have reasonably inferred that
members of the Southside Onterio gang system, including members of the Black Angels,
had consistently and repeatedly engaged in stabbings, shootings, robbery, burglary,
identity theft, and other crimes listed in section 186.22, subdivision (e). The officer‟s
testimony was thus sufficient to show that the primary activities of the Black Angels
consisted of statutorily enumerated crimes.
Contrary to defendant‟s suggestion, it was unnecessary for Officer Devey to use
the term “primary activities” in his testimony. The jury had ample reason to infer the
officer was talking about the primary activities of Southside Onterio gang members,
including the Black Angels, when he testified that members of the gang gained respect
and raised revenue by committing crimes listed in section 186.22, subdivision (e),
including robberies, stabbings, and shootings. It was not necessary for the officer to use
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the term “primary activities” in order to effectively describe the gang‟s primary activities.
(People v. Margarejo (2008) 162 Cal.App.4th 102, 107.)
Lastly, defendant claims In re Alexander L. (2007) 149 Cal.App.4th 605 requires
reversal of his active gang participation conviction. There, the gang expert‟s testimony
lacked sufficient foundation to show that gang members had consistently and repeatedly
committed criminal activities listed in section 186.22, subdivision (e), and the expert‟s
testimony was therefore insufficient to establish the primary activities element of a gang
enhancement. The gang expert testified “he knew” members of the gang had been
involved in certain crimes, but the court pointed out, “[n]o specifics were elicited as to
the circumstances of these crimes, or where, when, or how [the expert] had obtained the
information.” (Id. at pp. 611-612.)
Not so here. Officer Devey‟s testimony concerning the primary activities of the
Southside Onterio gang was based on his personal conversations with its members, his
investigation of over 100 crimes committed by its members, and his discussions with
other law enforcement officers. Unlike the expert testimony in In re Alexander L.,
Officer Devey‟s testimony was based on an adequate foundation and substantial
evidence. (Cf. In re Alexander L., supra, 149 Cal.App.4th at pp. 611-614.)
C. Substantial Evidence Supports the Gang Enhancement on the Assault Conviction
Section 186.22, subdivision (b)(1) provides that “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
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conduct by gang members” is subject to enhanced penalties. (§ 186.22, subd. (b)(1).)
The jury found defendant guilty of assaulting Aldo with a deadly weapon (§ 245, subd.
(a)(1)), and further found that defendant committed the assault for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)).
Defendant claims there is insufficient evidence he committed the assault “for the
benefit of” or “in association with” the Black Angles criminal street gang, and the
enhancement must therefore be reversed. (§ 186.22, subd. (b)(1).) We disagree. Officer
Devey‟s testimony supports a reasonable inference defendant stabbed Aldo for the
benefit of and in association with the Black Angels gang.
According to Officer Devey, defendant and Hernandez were self-admitted Black
Angels, the top-tier of the Southside Onterio gang system. Ledesma, Hernandez‟s
younger brother, was a member of OVS, the first-tier and predominately younger clique
of the Southside Onterior gang system. In Officer Devey‟s opinion, defendant was acting
in association with and for the benefit of the Black Angels when he stabbed Aldo at the
party, because he was assisting Hernandez after Hernandez got into a fight. Substantial
evidence supports the officer‟s opinion.
According to Officer Devey, loyalty and respect are “the two biggest things” a
Southside Onterio gang member has to demonstrate in order to become a member of the
gang in the first place and remain in good standing. It would show a “huge level of
disrespect” if a member did not assist another member in a fight.
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On September 28, 2008, defendant crashed the party at the Arechiga residence,
along with two of his fellow gang members, Hernandez and Ledesma. After Hernandez
fought with and stabbed Alcaraz, defendant fought with and stabbed Aldo. Defendant,
Hernandez, and Ledesma then left the Arechiga residence together after they were forced
out of the backyard, and Hernandez and Ledesma threw bottles and other objects at the
house. All of this evidence supports a reasonable inference that defendant stabbed Aldo
in association with and for the benefit of his gang.2
Similarly, in People v. Albillar (2010) 51 Cal.4th 47, substantial evidence showed
three gang members committed a rape in concert and other sex offenses against a 15 year
old in association with and for the benefit of their gang. (Id. at pp. 51, 59-64.) A gang
expert testified that gang members are expected to support each other in committing
crimes, and that assisting fellow gang members in committing crimes earns the member
respect and status within the gang, enhances the reputation of the gang, and enables the
gang to rely on intimidation. (Id. at pp. 60-61.) The same showings were made here.
Defendant attempts to distinguish Albillar on the ground that the stabbings of Aldo
“involved a confrontation at a backyard party between the hosts, who were not affiliated
with any gang, and a group of 10 to 15 individuals who had been uninvited.” He
2 Officer Devey also testified that if Southside Onterio gang members are hanging out together, it indicates they are active and in good standing with the gang. Several days before defendant was hanging out with his fellow gang members Hernandez and Ledesma at Carlos‟s house, defendant was sitting with two other Black Angels members in a parole orientation meeting.
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maintains that, “[o]ther than the defendants, there was no evidence that anyone else in the
uninvited group was associated with a gang, and no indication that they attended the
party for any purpose other than to socialize.” Not so. Officer Devey‟s testimony
concerning the importance of showing respect and loyalty in the gang culture supports a
reasonable inference that defendant fought with and stabbed Aldo in order to show his
respect and loyalty to Hernandez, to enhance the reputation of the Black Angels, and to
raise its status as an intimidating criminal street gang.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING J.
We concur:
HOLLENHORST Acting P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the defendant's conviction for active gang participation and the gang enhancement on his assault conviction, as expert testimony established the gang's primary activities and the defendant's actions were committed in association with and for the benefit of the gang.
Issues
Whether there was sufficient evidence that the Black Angels gang's primary activities consisted of criminal acts enumerated in Penal Code section 186.22, subdivision (e).
Whether there was sufficient evidence that the defendant committed the assault for the benefit of, at the direction of, or in association with a criminal street gang.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Officer Devey‟s testimony was sufficient to establish the primary activities element of the active gang participation conviction.”
“Officer Devey‟s testimony supports a reasonable inference defendant stabbed Aldo for the benefit of and in association with the Black Angels gang.”