California Court of Appeal Sep 27, 2021 No. E073455Unpublished
Filed 9/27/21 P. v. Jimenez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E073455
v. (Super.Ct.Nos. FWV19000409 & FWV19000410) JESSE JIMENEZ et al., OPINION Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Dan W. Detienne,
Judge. Affirmed with directions.
James M. Kehoe, under appointment by the Court of Appeal, for Defendant and
Appellant Jesse Jimenez.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and
Appellant Nicolas Mora.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi,
Deputy Attorneys General, for Plaintiff and Respondent.
1
Following a bench trial, Jesse Jimenez and Nicolas Mora were convicted of
actively participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)
(§ 186.22(a)), and Mora was convicted of first degree burglary (Pen. Code, § 459;
unlabeled statutory citations are to this code). Defendants admitted that they suffered a
inferences in favor of the judgment.” (Ibid.) “Matters of credibility of witnesses and the
weight of the evidence are ‘“‘the exclusive province’”’ of the trier of fact.” (Ibid.)
1 As the People correctly point out, Jimenez argues only that there is insufficient evidence of active participation. We nonetheless address the sufficiency of the evidence of active participation and awareness of the gang’s pattern of criminal activity as to both defendants because the analysis is the same as to both.
8
“The elements of the gang participation offense in section 186.22(a) are: First,
active participation in a criminal street gang, in the sense of participation that is more
than nominal or passive; second, knowledge that the gang’s members engage in or have
engaged in a pattern of criminal gang activity; and third, the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.”
(People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez); § 186.22(a).) “A person
who is not a member of a gang, but who actively participates in the gang, can be guilty of
violating section 186.22(a).” (Rodriguez, supra, at p. 1130.) “Mere active and knowing
participation in a criminal street gang is not a crime.” (Ibid.) “A defendant’s active
participation must be shown at or reasonably near the time of the crime.” (People v.
Garcia (2007) 153 Cal.App.4th 1499, 1509.)
Substantial evidence shows that Jimenez and Mora were active participants in
Happy Town, a criminal street gang, when the underlying burglary was committed. The
prosecution’s gang expert on Happy Town opined that defendants were active
participants in Happy Town, which itself constitutes substantial evidence. (See People v.
Gonzalez (2021) 59 Cal.App.5th 643, 649 [“Expert opinion can support a gang
enhancement under section 186.22, subdivision (b)(1)”].) In addition, defendants both
had Happy Town gang-related tattoos, and various items (drawings, writings, and a T-
shirt) with Happy Town gang-related content were found in their homes soon after they
were arrested. Defendants do not dispute the gang-related nature of their tattoos—
“Happy Town Pomona,” “Just clowning,” the initials “H and T,” and clown faces—or the
content of the paperwork found in their residences—drawings of clowns and writings
9
containing the initials “HT,” “Happy Town cartoon,” and “Happy Town Pomona.” Sacca
opined that nonactive gang members would not keep gang-related paraphernalia, and he
confirmed that he had found similar gang-related drawings when searching the residences
of other Happy Town gang members. The trial court could reasonably infer from this
evidence that Jimenez and Mora were active participants in Happy Town when the
burglary was committed.
Additionally, when defendants were arrested, Mora had a blue bandana in his
pocket, and another blue bandana was found in the vehicle from which defendants fled at
the Riverside pallet yard. The trial court could reasonably infer that the blue bandana in
the vehicle belonged to Jimenez, as he was one of the vehicle’s occupants. Given the
evidence that Happy Town members identify themselves by the color blue, the trial court
could reasonably infer that defendants possessed the blue bandanas because they were
Happy Town members.
Moreover, defendants were housed in general population in jail. As Sacca
explained, nonactive gang members with gang-related tattoos are not housed in general
population because of the risk of violence against them from active gang members.
Given defendants’ gang-related tattoos identifying their affiliation with Happy Town,
defendants’ placement in general population supports the reasonable inference that they
were active members of Happy Town. From all of this evidence, the trial court could
reasonably infer that Jimenez and Mora were active participants in a criminal street gang
when the offense was committed.
10
Defendants argue that the evidence was insufficient because of various
nonincriminating reasonable inferences that could have been drawn from the evidence.
They suggest that the following reasonable inferences were supported by the evidence:
Defendants’ tattoos could have been old, thus demonstrating only a past association or
membership with Happy Town; the gang-related items in their homes could have been
keepsakes or could have belonged to other residents; and defendants could have been
former Happy Town members who were not at risk while being housed in general
population, because Sacca did not know how Happy Town treats “aged out” members.
But in conducting substantial evidence review, we draw all reasonable inferences in
support of the judgment, not against it. (Cardenas, supra, 53 Cal.App.5th at p. 119,
fn. 11.) We consequently are concerned only with whether “‘“the circumstances
reasonably justify the trier of fact’s finding.”’” (People v. Kraft (2000) 23 Cal.4th 978,
1054.) When evidence reasonably justifies the trier of fact’s findings, as the evidence
does here, “‘the opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant a reversal of the
judgment.’” (People v. Thomas (1992) 2 Cal.4th 489, 514.)
Comparing this case with other cases in which sufficient evidence of active
participation was found (see People v. Castenada (2000) 23 Cal.4th 743, 752-753;
People v. Martinez (2008) 158 Cal.App.4th 1324, 1331), defendants also argue that the
evidence of active participation here is insufficient because some evidence present in
those other cases was not present here. For example, (1) defendants did not admit that
they were Happy Town members, (2) there was no evidence that defendants had
11
previously been identified by law enforcement as possible Happy Town members, (3)
defendants had no prior gang-related convictions, (4) the Happy Town gang expert had
never heard of or seen defendants, and (5) there was no evidence of Houston Astros
attire found at Jimenez’s residence.
Defendants’ argument lacks merit. “‘When we decide issues of sufficiency of
evidence, comparison with other cases is of limited utility, since each case necessarily
depends on its own facts.’” (People v. Casares (2016) 62 Cal.4th 808, 828, overruled on
another ground in People v. Dalton (2019) 7 Cal.5th 166, 214.) Section 186.22(a) does
not require the presence of any particular type of evidence to support a finding of active
participation. “Our review tests whether the evidence was sufficient, not whether
hypothetical evidence would have strengthened the prosecution’s case.” (People v.
Vargas (2020) 9 Cal.5th 793, 821-822.) The absence of hypothetical stronger evidence
therefore does not undermine the sufficiency of the evidence presented here.2
Defendants also argue that Sacca’s testimony that Jimenez and Mora were active
participants in Happy Town does not constitute substantial evidence because the facts on
which Sacca’s opinion was based are themselves insufficient. The argument lacks merit.
As we have already explained, the facts relied on by Sacca—defendants’ tattoos, the
2 Defendants reliance on People v. Ramirez (2016) 244 Cal.App.4th 800 as having similar facts is misplaced. Ramirez concluded that the evidence of active participation at the preliminary hearing was insufficient to support a charge under section 186.22(a). (Id. at p. 817.) But the only evidence presented there was one photograph of the defendant in the gang’s colors and two tattoos that did not identify a specific gang but generically referred to the gang lifestyle (three dots and an incomplete Aztec calendar). (Id. at pp. 807-808, 817.) Defendants’ tattoos were not similarly ambiguous, and there was substantial additional evidence that they were active participants in Happy Town.
12
gang-related drawings and writings found in defendants’ residences, and defendants’
placement in the general population in jail—constitute substantial evidence that
defendants were active participants in Happy Town when the burglary was committed, so
Sacca’s opinion that they were active participants is both unnecessary and adequately
supported by those same facts.
We also reject defendants’ argument that there was not sufficient evidence
supporting the second element of the offense, namely, that defendants possessed
knowledge that the gang’s members engage in or have engaged in a pattern of criminal
gang activity. Defendants point out that there was no evidence that they “ever admitted
or said anything indicating either had actual, current knowledge of the gang’s activities”
or that either of them “had any knowledge that the gang’s members engage in or have
engaged in a pattern of criminal gang activity.” But an admission from defendants was
not necessary. Sacca testified that Happy Town’s primary activities are robbery,
narcotics sales, and illegal firearm possession. He also testified that active participants in
a gang are aware that other members of the gang commit crimes. Given that testimony,
the trial court could reasonably infer from the evidence of defendants’ active participation
in Happy Town that defendants knew that Happy Town’s members engage in or have
engaged in a pattern of criminal gang activity.
For all of these reasons, we conclude that sufficient evidence supports defendants’
convictions under section 186.22(a).
13
B. Section 654
The trial court sentenced Mora to 12 years for first degree burglary (§ 459;
count 1) and one year and four months for being an active participant in a gang
(§ 186.22(a); count 3). Section 654 “‘prohibits multiple punishment for the same “act or
omission.”’” (People v. Correa (2012) 54 Cal.4th 331, 337.) Mora argues, the People
concede, and we agree that under People v. Mesa (2012) 54 Cal.4th 191, 197-198, the
trial court should have stayed Mora’s sentence for count 3. It was error to punish Mora
for the burglary and again for committing that offense while acting as a gang member.
(Ibid.) We therefore direct the trial court to stay Mora’s sentence of one year and four
months for his conviction under section 186.22(a).
C. Prior Prison Term
Effective January 1, 2020, while this appeal was pending, Senate Bill No. 136
restrict imposition of the one-year prior prison term enhancement to sexually violent
offenses. (§ 667.5, subd. (b).) Jimenez’s underlying conviction, for which the trial court
imposed the one-year enhancement, was not a sexually violent offense. The parties agree
and this court has already held that Senate Bill No. 136 applies retroactively to those like
Jimenez whose sentences were not final when Senate Bill No. 136 became effective.
(People v. Chubbuck (2019) 43 Cal.App.5th 1, 13-14; People v. Cruz (2020) 46
Cal.App.5th 715, 738-739.) We consequently direct the trial court to strike the one-year
prior prison term enhancement for Jimenez.
14
DISPOSITION
For Jimenez, the trial court is directed to strike the one-year prior prison term
enhancement. For Mora, the trial court is directed to stay the sentence on his conviction
under section 186.22(a). The trial court is directed to prepare new abstracts of judgment
reflecting the corrected sentences and to forward copies of the new abstracts of judgment
to the California Department of Corrections and Rehabilitation. In all other respects, the
judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
MILLER Acting P. J. CODRINGTON J.
15
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendants' convictions for active gang participation, finding sufficient evidence supported the findings, but ordered the trial court to strike Jimenez's prior prison term enhancement and stay Mora's sentence for the gang offense under section 654.
Issues
Whether there was sufficient evidence to support the defendants' convictions for active participation in a criminal street gang under Penal Code section 186.22(a).
Whether the trial court erred in imposing multiple punishments for burglary and gang participation in violation of Penal Code section 654.
Whether the prior prison term enhancement imposed on Jimenez must be stricken pursuant to the retroactive application of Senate Bill No. 136.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“Substantial evidence shows that Jimenez and Mora were active participants in Happy Town, a criminal street gang, when the underlying burglary was committed.”
“It was error to punish Mora for the burglary and again for committing that offense while acting as a gang member.”
“We consequently direct the trial court to strike the one-year prior prison term enhancement for Jimenez.”