DOC - California Courts

					Filed 5/5/11 P. v. Lancaster CA2/2
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                        DIVISION TWO


THE PEOPLE,                                                                   B223616

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. TA104249)
          v.

MICHAEL LANCASTER,

          Defendant and Appellant.



          APPEAL from a judgment of the Superior Court of Los Angeles County.
Allen J. Webster, Jr., Judge. Reversed in part and affirmed in part.


          Linn Davis, under appointment by the Court of Appeal, for Defendant and
Appellant.


          Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan
Pithey and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.


                                                       _______________
       Michael Lancaster appeals from the judgment entered upon his conviction by jury
of second degree robbery (Pen. Code, § 211).1 The jury also found to be true the gang
allegation within the meaning of section 186.22, subdivision (b)(1)(C). The trial court
sentenced him to a prison term of three years for the robbery, plus 10 years for the gang
enhancement. Appellant contends that he was denied due process under the Fifth and
Fourteenth Amendments to the federal Constitution as his conviction is unsupported by
substantial evidence because there is lacking evidence (1) that he committed the robbery
for the benefit of, at the direction of, or in association with a criminal street gang, and
(2) that he committed the robbery with the specific intent to promote, further, or assist in
any criminal conduct by gang members.
       We reverse the gang enhancement, remand for resentencing and otherwise affirm.
                               FACTUAL BACKGROUND
The Robbery
       On November 29, 2008, at 11:00 p.m., Edward Mosby (Mosby) was waiting for a
bus at the intersection of Slauson Avenue and Broadway. A woman approached, and
asked if he was a gang member. Mosby was not and said so. The woman said she was
pregnant and asked if he would help push her car. Appellant, the woman‟s boyfriend,
was standing near the car.
       Mosby assisted appellant in pushing the car to a nearby gas station. While Mosby
held the hood open, appellant checked the radiator, in an attempt to fix an overheating
problem. When his girlfriend stepped on the accelerator, the radiator exploded and hot
water sprayed on appellant. Upset, he responded by cursing at his girlfriend, and saying,
“On Lanes blood” or “On Bloods,” directed at his girlfriend. He removed his soiled shirt,
under which was a “wife beater” tank top T-shirt that exposed some of his chest. Mosby
saw a “D.L.” tattoo on his chest. Mosby had heard of the Denver Lanes gang (Denver
Lanes) and believed they were a Blood gang with a red gang color.



1      All further statutory references are to the Penal Code unless otherwise indicated.

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       After 45 minutes, the station attendant came out and told them to move the car to a
different area of the station. Appellant and Mosby pushed it to that area and parked it. A
man and woman arrived to pick up appellant and his girlfriend. The man was wearing a
blue shirt. Appellant‟s girlfriend offered Mosby a ride, and the five of them got into the
second couple‟s Explorer. The second female drove. Appellant sat behind her, Mosby
sat behind the man in the blue shirt and appellant‟s girlfriend sat between appellant and
Mosby.
       Appellant said that they were going to make a stop at a “weed house.” The
Explorer drove to an alley, nowhere near Mosby‟s home. The driver parked, and the two
men got out, went to Mosby‟s door, opened it, and appellant punched him in the face and
eye, while the other man pulled him from the car by his hood. They went through
Mosby‟s pockets and took his Louis Vuitton wallet, with his social security and
identification cards, his cell phone, and his gold nugget ring, and continued to punch him
and pull at his clothing. Mosby sustained bruises to his elbows and ribs.
       As the two men ran back to the Explorer, Mosby ran for safety. The Explorer
drove away, and Mosby walked to a nearby liquor store to use the telephone.
Gang Testimony
       Los Angeles Police Detective Samuel Marullo testified as a gang expert, with
expertise in the Southeast Los Angeles area gangs, including the Denver Lanes, which
was respected by other gangs. The Denver Lanes had about 200 members. Its gang color
was red, though members did not wear that color all of the time. Its territory ran from
104th Street on the north to 119th Street on the south and from Vermont on the west to
the 110 Freeway on the east. The Denver Lanes main rival was the Hoover Criminals
gang, a Crips gang, with which the Denver Lanes gang was involved in an ongoing war at
the time of the charged offenses. The primary activities of the Denver Lanes were
vandalism, burglary, robbery, narcotics sales, carrying guns as felons, attempted murder,
and murder.
       Detective Marullo explained that there is pressure for gangs to commit crimes in
their territories, though it is not uncommon for them to commit crimes elsewhere.

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Crimes benefit the gang because when a gang member “put[s] in work,” it is for the good
of the gang. If a gang member does not put in work, he can be severely disciplined. The
profits from a gang-member‟s crime are shared with the gang. Crimes also increase the
gang‟s respect because it instills fear and aids in recruitment. The detective
acknowledged that not all crimes, including robberies, are committed by gang members
for the benefit of the gang, even if conducted in gang territory.
       According to the detective, appellant became a Denver Lanes member when he
was around 12 years old and remained one through the time of trial. Appellant‟s moniker
was Baby Ruth Blood, which he freely admitted. In addition to his “DL” tattoo, appellant
had “108th” and “112th” tattooed on his right and left arms, respectively, signifying that
he was part of Fig Boys, a clique within the Denver Lanes.
       Given a hypothetical based upon the evidence presented in this case, Detective
Marullo opined that the charged robbery was committed for the benefit of the Denver
Lanes. It enhanced that gang‟s reputation for violence, which facilitates its entering
alliances with other gangs and recruitment. Robbery is a common way in which a gang
member “put[s] in work” for the gang and earns respect, especially when the member is
young. Gangs have higher expectations for younger members. It was not necessary for
the money obtained in a robbery to be shared with the gang for the robbery to be
beneficial to the gang, though gangs expect that members will contribute materially.
Robberies are more important during gang wars due to the gang‟s need for money to
conduct the war and to help compensate for lost narcotics sales. In 2008, the Denver
Lanes were at war with the Hoovers. Detective Marullo did not know if the money and
property obtained in the charged robbery was shared. But word of the robbery would be
disseminated by the audience present during the robbery, making it more likely that
appellant would be compelled to share the proceeds with his gang. If he did not, it would
be a mark against him within the gang.
       When appellant swore “on Lanes blood,” it was a figure of speech, equivalent to
swearing by God. The facts that appellant swore “on Lanes blood,” that there were
witnesses to the robbery, that he exposed his “DL” tattoo, and that Mosby was asked if he

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gangbanged to make certain that appellant did not rob an ally gang member, all formed
the basis of Detective Marullo‟s opinion.
                                       DISCUSSION
I. Contention
       Appellant‟s sole contention on this appeal is that he was denied due process under
the Fifth and Fourteenth Amendment to the federal Constitution because there was
insufficient evidence that he committed the robbery 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. He argues that the gang expert‟s opinion
was the only testimony on this issue and was unsupported by the evidence and based on
rampant speculation. We agree.
II. Standard of review
       “In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.) All conflicts in the evidence and questions of credibility are resolved
in favor of the verdict, drawing every reasonable inference the jury could draw from the
evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is
unwarranted unless „“upon no hypothesis whatever is there sufficient substantial evidence
to support [the conviction].‟” (People v. Bolin, supra, at p. 331.) This standard applies
whether direct or circumstantial evidence is involved. (People v. Catlin (2001) 26
Cal.4th 81, 139.) It also applies when determining whether the evidence is sufficient to
sustain a jury finding on a gang enhancement. (See People v. Duran (2002) 97
Cal.App.4th 1448, 1456–1457; People v. Villalobos (2006) 145 Cal.App.4th 310, 321–
322 (Villalobos).)
III. Gang related offense
       Section 186.22, subdivision (b)(1) provides that a person convicted of a felony
committed “for the benefit of, at the direction of, or in association with any criminal

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street gang, with the specific intent to promote, further, or assist in any criminal conduct
by gang members” can receive an enhanced sentence. (People v. Gardeley (1996) 14
Cal.4th 605, 616–617 (Gardeley.) It applies to “gang-related” crimes. (People v.
Castenada (2000) 23 Cal.4th 743, 745.) “Not every crime committed by gang members
is related to a gang.” (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).)
       An expert may render an opinion based on the facts of a hypothetical question as
to whether a crime is committed for the benefit of, at the direction of or in association
with a criminal street gang. (See Gardeley, supra, 14 Cal.4th at pp. 617–618.) But a
hypothetical must be “rooted in facts shown by the evidence.” (Id. at p. 618.) Evidence
that a gang member committed a crime alone with an expert‟s unsubstantiated opinion
that the crime was committed for the benefit of the gang is insufficient to find the gang
enhancement to be true. (People v. Ochoa (2009) 179 Cal.App.4th 650, 665 (Ochoa).)
“[T]he record must provide some evidentiary support, other than merely the defendant‟s
record of prior offenses and past gang activities or personal affiliations, for a finding that
the crime was committed for the benefit of, at the direction of, or in association with a
criminal street gang.” (People v. Martinez (2004) 116 Cal.App.4th 753, 762 (Martinez);
Ochoa, supra, at p. 663 [“The gang enhancement cannot be sustained based solely on
defendant‟s status as a member of the gang and his subsequent commission of crimes”].)
The crime must have some connection with the activities of a gang. (See Martinez,
supra, at pp. 759–760 [discussing § 186.30].)
       We join the growing chorus of appellate decisions that have critically reviewed the
perfunctory testimony of gang experts and found it insufficient to support the gang
enhancement. (See, e.g., People v. Ramon (2009) 175 Cal.App.4th 843; Ochoa, supra,
179 Cal.App.4th 650; In re Frank S. (2006) 141 Cal.App.4th 1192.) It is not our task to
fill in the gaping evidentiary holes that the prosecution has sidestepped by means of
boilerplate “gang expert” testimony.
       In this case, other than the gang expert‟s testimony that the robbery of Mosby was
for the benefit of the Denver Lanes, the evidence is insufficient to sustain a finding that
the crime was committed to benefit that gang. It was not committed in gang territory or

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against a rival gang member, there was no gang challenge to Mosby made before the
robbery, there was no gang graffiti left after the robbery, and no gang signs were thrown.
(See In re Jose T. (1991) 230 Cal.App.3d 1455, 1463 [flashing gang sign and yelling
attacker‟s name reflects that crime gang related]; People v. Olguin (1994) 31 Cal.App.4th
1355, 1382–1383 [crossing out gang graffiti and shouting gang name reflects gang
related crime].)
       There is also no evidence that appellant‟s girlfriend or the unnamed couple who
came to pick them up were fellow gang members. In fact, it is unlikely that the man was,
as he wore a blue shirt, the color of Crips gangs, not red, the color of rival Blood gangs,
such as the Denver Lanes. It is questionable whether appellant would have committed a
gang crime with a nongang member, who is not bound by the code of silence and loyalty
to which gang members are bound with regard to each other. There was no evidence to
suggest that the robbery was a planned gang crime. Instead, it appears that appellant was
involved in nongang activity, driving his girlfriend somewhere when their car broke
down, nothing more. There was no evidence that the other male and female were
anything other than coparticipants in the charged offense, not people seeking to commit a
crime for the benefit of a gang.
       Detective Marullo‟s opinion that the robbery was committed for the benefit of a
criminal street gang was based upon rampant and utter speculation. Like a well-crafted
novel, it read well, but bore no relationship to the evidence. In support of his opinion, the
detective pointed to appellant‟s gang reference when he stated, “On Lane‟s Blood” and
removed his shirt, under which was a tank-top, T-shirt that revealed a “DL” tattoo on his
chest. But these things occurred only when appellant‟s girlfriend depressed the car‟s
accelerator, causing the radiator to explode and spray hot liquid on appellant‟s outer shirt.
Neither the statement nor the removal of the shirt was intended as a challenge or display
of gang affiliation, but were spontaneous responses to what appellant‟s girlfriend had
done. The statement, “On Lane‟s Blood,” was like swearing on appellant‟s highest
authority, his gang. Mosby testified that it was not directed at him, but at appellant‟s
girlfriend. There is no evidence that the gang tattoo was intentionally displayed or would

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have been displayed but for the unanticipated dangerous spraying of hot liquid on
appellant.
       Detective Marullo also relied on the fact that Mosby was asked by appellant‟s
girlfriend if he was a gang member before she asked for his assistance in pushing the car.
The detective stated that the question was asked so that appellant would know that he was
not inadvertently robbing a fellow Denver Lanes member. But there was not a shred of
evidence that this was the reason for the inquiry. There is nothing to even suggest that
the question derived from appellant, rather than from his girlfriend, who posed it. Also,
if appellant‟s girlfriend was merely communicating a question appellant told her to ask, it
is equally plausible that the inquiry was made because appellant was in the midst of
dealing with a car problem outside his gang‟s territory and wanted assurance that the
person who assisted was not a rival gang member who might precipitate a confrontation.
Nothing in the facts suggests that there was any prior plan to rob Mosby.
       Detective Marullo further asserted that the robbery was appellant‟s attempt to “put
in work” for the Denver Lanes, which is expected by that gang and which earns respect
for the perpetrator. This expectation, the detective said, is even higher for young gang
members like appellant. The proceeds of the robbery must, directly or indirectly, inure to
the benefit of the gang because the failure to contribute to the gang is a mark against the
gang member. But there is not a scintilla of evidence that appellant committed the crime
to put in work for the gang or that he intended to share the proceeds of the robbery with
his gang. The crime did not occur in gang territory, involved people not in the Denver
Lanes, was perpetrated against Mosby, who was not a gang member, and occurred
without any overt display that the crime was gang sponsored. If the mere obligation of a
gang member to share the ill-be-gotten gains of his crime with his gang, without respect
to whether he actually did so, is sufficient to make a robbery a gang crime, every robbery
by a gang member would be a gang crime. Even Detective Marullo acknowledged that
not every robbery by a gang member is for the benefit of the gang.
       Detective Marullo also speculated that respect was gained by committing a violent
crime with an audience who would talk about it with others. But there is no evidence

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who the members of the audience were or where they lived. They were accomplices in
the crime, which might make them less willing to spread the word of appellant‟s conduct,
and hence enhance his reputation.
       We find this case distinguishable from Albillar, where our Supreme Court found
that the three defendants, who were all gang members, “came together as gang members
to attack [sexually the victim] and, thus, that they committed these crimes in association
with the gang.” (Albillar, supra, 51 Cal.4th at p. 62.) There was no evidence here that
any of the perpetrators of the robbery, other than appellant, was a Denver Lanes member.
       Because we conclude that appellant‟s offense was not gang-related, he cannot
have acted in committing that crime with the specific intent to promote, further, or assist
in any criminal conduct by gang members. Further, as stated in Villalobos, supra, 145
Cal.App.4th at page 322, “As to the second prong of the enhancement, all that is required
is a specific intent „to promote, further, or assist in any criminal conduct by gang
members.‟ [Citation.] Commission of a crime in concert with known gang members is
substantial evidence which supports the inference that the defendant acted with the
specific intent to promote, further or assist gang members in the commission of the
crime.” There is no evidence that appellant acted to promote, further or assist gang
members, as there was no evidence that any of the other participants in the robbery were
Denver Lanes members. It is not enough that appellant was. Were that the case, any
crime by a single gang member would be a crime with the intent to promote, further or
assist gang members, and Detective Marullo testified that not all crimes by gang
members are gang crimes.
IV. Remedy
       A defendant‟s aggregate prison term under the determinant sentencing law “cannot
be viewed as a series of separate independent terms, but rather must be viewed as one
prison term made up of interdependent components. The invalidity of some of those
components necessarily infects the entire sentence. [¶] . . . [¶] In making its sentencing
choices in the first instance the trial court undoubtedly considered the overall prison term
to be imposed.” (People v. Savala (1983) 147 Cal.App.3d 63, 69–71, disapproved by the

                                              9
same court on other grounds in People v. Foley (1985) 170 Cal.App.3d 1039; see also
People v. Rojas (1988) 206 Cal.App.3d 795 [remanded for resentencing where section
667, subdivision (a) was improperly imposed because the alleged prior serious felony
actually occurred after the current charges].) In accordance with these authorities, this
matter will be remanded for resentencing.
                                       DISPOSITION
       The gang enhancement is reversed and the judgment is otherwise affirmed. The
matter is remanded for resentencing.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                  ______________________, J.
                                                   ASHMANN-GERST


I concur:



____________________, Acting P. J.
  DOI TODD




                                             10
I dissent.
       I disagree with the majority position that the expert‟s opinion that the robbery was
committed for the benefit of, at the direction of or in association with a criminal street
gang, and with the specific intent to promote, further, and assist in any criminal conduct
by gang members “was based upon rampant and utter speculation.”
       The record supported a finding that appellant‟s conduct benefitted the gang.
Detective Marullo, an experienced gang enforcement officer, testified as an expert
witness that he knew appellant to be an openly gang-tattooed member of Denver Lane
gang. This fact, when considered with the evidence that the robbery victim was asked
about his own gang affiliation prior to the robbery and that appellant exposed his Denver
Lane tattoos to the victim and swore “on Lanes blood” in the presence of the victim, was
the basis for Detective Marullo‟s opinion that when such a gang member commits the
violent crime of robbery the gang benefits by having its image of strength in the
community reinforced which adds to the level of respect it commands. “Expert opinion
that particular criminal conduct benefitted a gang by enhancing its reputation for
viciousness can be sufficient to raise the inference that the conduct was „committed for
the benefit of . . . a[] criminal street gang‟ within the meaning of section 186.22(b)(1).”
(People v Albillar (2010) 51 Cal.4th 47, 63 (Albillar), citing People v Vazquez (2009)
178 Cal.App.4th 347, 354.) Though the majority observes that the crime did not take
place within the Denver Lane‟s claimed territory, that no gang challenge was made, no
gang signs thrown, and no graffiti left behind, our task is to determine whether there was
substantial evidence -- even if it was disputed -- to support the jury‟s finding. The
absence of overt gang identification does not necessarily take the crime out of the gang
context. Reversal is not warranted simply because the circumstances might also be
reasonably reconciled with a contrary finding. (Albillar, supra, at p. 60.)
       Detective Marullo also testified about the gang practice of “putting in work” or
committing crimes for the common good. He noted that gangs crave respect from others
and for a gang to be strong and have that respect its members must commit violent crimes
in public. Detective Marullo noted that here the robbery was committed in front of an
audience of two women and another man. It matters not whether the witnesses were
members of a gang themselves because regardless, they will likely discuss their
observations with others in the community which will in and of itself enhance the gang
image. This evidence supports the second prong of the jury finding, that the crime was
committed “with the specific intent to promote, further, or assist in any criminal conduct
by gang members.” (§ 186.22, subd. (b)(1).)
       Based on the foregoing there was substantial evidence of solid value to support the
conclusion reached by the trier of fact who had the opportunity to observe and judge the
credibility and significance of the evidence presented. The judgment should be affirmed
in all respects.




                                          _______________________________, J.
                                          CHAVEZ




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