THE PEOPLE, Plaintiff and Respondent, v. RUDY ESCAMILLA, Defendant and Appellant.

Court of Appeals of California, Second District, Division Two.
Filed August 10, 2011.
Edward J. Horowitz , under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris , Attorney General, Dane R. Gillette , Chief Assistant Attorney General, Pamela C. Hamanaka , Assistant Attorney General, Lance E Winters and Michael A. Katz , Deputy Attorneys General, for Plaintiff and Respondent.



Rudy Escamilla appeals from the judgment entered upon his convictions by jury of shooting at an inhabited dwelling (Pen. Code, § 246, count 1),1 being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 2), robbery (§ 211, count 3), identity theft (§ 530.5, subd. (a), count 4), and three counts of conspiracy to dissuade a witness (§ 136.1, subd. (c)(2), counts 5-7). The jury found to be true with respect to count 1 the firearm-use allegation within the meaning of section 12022.5, subdivision (a), with respect to counts 1, 3 and 5 through 7, the gang allegation within the meaning of section 186.22, subdivision (b)(1)(C) and with respect to counts 2 and 4 the gang allegation within the meaning of section 186.22, subdivision (b)(1)(A). The trial court sentenced appellant to an aggregate state prison term of 62 years eight months to life. Appellant contends that (1) the trial court erred in failing to instruct the jury that it had to decide if there were three or fewer conspiracies, (2) even if there was more than one conspiracy, section 654 permits only one sentence because the conspiracies were pursuant to one objective, (3) there was insufficient evidence to support the gang allegation on the conspiracy counts, (4) there was insufficient evidence to support the gang allegation on the identity theft count, and (5) the trial court erred in allowing irrelevant and excessive gang evidence.

We reverse in part and affirm in part.


Prosecution Evidence

Shooting at inhabited dwelling

In December 2005, Aaron Burris (Burris) lived in Hawaiian Gardens with Cortiney Bewley (Bewley), the mother of Burris's son, Burris's son and Burris's brother. Juan "Wowie" Leon (Leon) and Kathy Carreno (Carreno) lived in the apartment building next door.

On December 31, 2005, Burris had a party at his home. Almost everyone in attendance was Black. Bewley saw appellant, a member of the Varrio Hawaiian Gardens gang (VHG), ride his bike slowly past Burris's home "a couple times" and stare at Burris's relatives with a "mean" expression, "[l]ike he had a problem with [them]." Later, Burris saw appellant walk by and said to appellant, "What's up." Burris's brother told appellant to leave, because they were having a party. Appellant left and said nothing.

Later, a car driven by a girl with four or five people inside drove by. Appellant was in the car and "squeeze[d] off" six or seven shots that just missed Burris and struck his house.

Burris explained that he suffered constant harassment by Hispanics in his neighborhood because he was Black. VHG gang members used guns and racial epithets against him. Just hours after the shooting, a van pulled into Burris's driveway. Some males got out, and yelled, "Fuck niggers," and "[t]his is Hawaiian Gardens." A few days later, someone shot at Burris's home again, shouting the same things.

At the preliminary hearing, appellant's sister, Stephanie Escamilla (Stephanie), said to Burris and Bewley in the courthouse elevator, "[W]hat's up?" in a threatening tone. This caused Burris concern for their safety.

Robbery of Jonathan Turcios

Early morning, on January 9, 2006, Jonathan Turcios (Turcios), who had been associated when he was younger with the tagging crew "E.K." or "Evil Klan," was in Hawaiian Gardens, walking toward his car. He saw three men, including appellant, who appeared to be breaking into a truck. They jogged up to Turcios and surrounded him. Appellant, asked where he was from. Turcios first responded that he was "from L.A." When asked again, he said, he was from "nowhere," meaning he was not in a gang. One of the men had a knife. They took Turcios's wallet and other property and left in a white Honda that had pulled behind Turcios.

Turcios memorized the license plate number of that car and called 911. He identified appellant as the robber in a photographic lineup, at the preliminary hearing and at trial. He also identified the other robbers, which included Leon, in separate photographic lineups and at the preliminary hearing. All those involved in the robbery were self-admitted VHG gang members. The white Honda in which appellant left the robbery scene was located and stopped, and Carreno was arrested.

Conspiracies to dissuade witnesses

Detective Brandt House interviewed Leon and Carreno, both of whom identified appellant as the shooter at the Burris residence. Carreno also reported that appellant was involved in the Turcios robbery. Detective House included these statements in a supplemental police report which was provided to all counsel.

The prosecutor played recordings of appellant's jail telephone conversations, which were primarily with his mother, Tammy Lakey (Lakey) and Stephanie. In one, referring to Turcios, appellant told Stephanie to tell "the fool from E.K. . . . to go back to court and change his . . . statements." He told her to find out about Turcios and to run "a make" on him. Appellant said that Turcios should say that the police threatened him into making his statement. Appellant also told Stephanie to talk to Turcios's girlfriend and ask, "Do you have a boyfriend named Jonathan?"

The phone conversations also included discussions about Leon and Carreno snitching. Stephanie and Lakey said that they were looking for paperwork on Leon and Carreno and talked about getting the police report from defense counsel. They said they were going to "boo bop"2 Leon and needed the paperwork to give to the "Big Chongo."3 Stephanie called Leon a rat, and told someone she did not want him dead, just his arms and legs broken. Appellant told Stephanie to take the paperwork to George for delivery to his brother, Hefty, both VHG gang members. Lakey later told appellant that she gave the papers to Stephanie to give to some "big people." Appellant told Stephanie to get Leon's jail booking number on the internet because he was going to "boo bop" Leon in the holding cell. Stephanie reported to appellant that they were "mad-doggin" Carreno. Stephanie said that she "beat the shit out of [Carreno]." Lakey and Stephanie remarked that there was no paperwork on them because they had said nothing.

Nine months after the shooting, Deputy Alexander Gomez searched appellant's home and found pages from the preliminary hearing transcript under a mattress, the police reports, sheriff's reports and supplemental reports related to this matter. A search of the residences of high ranking VHG gang members also uncovered the paperwork, with Leon's and Carreno's highlighted statements and Miranda4 waivers, indicating that they had spoken with the police.

While appellant was in the lockup area of the courthouse, he attacked Leon, who was also in jail. Appellant said to him, "F-you f-ing snitch."

Identity theft

In a telephone conversation, Stephanie talked with appellant about obtaining a "burnout" phone line, which he encouraged her to do. In a later conversation, Stephanie said that she told someone to get credit card numbers at work. Afterwards, she informed appellant that she had signed someone else's name to obtain a phone line with Comcast.

Alicia Doolan (Doolan) testified that she did not know Stephanie, had never lived in Hawaiian Gardens, had never had a phone line with Comcast, and had never had the burnout line telephone number. She gave no one permission to use her name in order to obtain a phone account, and the signature on the bottom for the customer was not hers.

Detective Gary Sloan testified that jail inmates obtain "burnout [telephone] lines" by stealing an innocent person's identity. Inmates use these lines to have three-way telephone conversations. While appellant was in jail, he had a three-way conversation with Stephanie and "Troubles," a gang member from Compton, who was incarcerated in another part of the jail.

Gang evidence

Several gang experts testified for the People. Rene Enriquez (Enriquez) testified as a gang expert from a unique perspective. He was a former Artesia criminal Street gang member and then "[p]art of the upper echelon" of the Mexican Mafia, before dropping out in 2002. He had "extensive[]" business contacts with VHG members for the Mexican Mafia. Enriquez was serving a life sentence for murder and was cooperating with authorities. As a result, "he [was] a very highly priced target to Mexican Mafia members in good standing, as well as criminal street gang members."

Enriquez described the Mexican Mafia and its relationship with ordinary street gangs. The Mexican Mafia was 60 years old and had never changed its methodology. Only about 150 to 200 people belonged to the Mexican Mafia, but about 60,000 gang members in Southern California were loyal to it. "Most Southern California gangs are part of the structure established by the Mexican Mafia." Rival street gangs may both be loyal to the Mexican Mafia. The VHG gang is loyal to the Mexican Mafia. Albert "Badger" Martinez is the crew chief in Hawaiian Gardens for Arte Guzman, who was a top figure in the Mexican Mafia.

In the early 1990's, the Mexican Mafia issued an edict to stop drive-by shootings in Hawaiian Gardens and, instead, to target Blacks and shoot at them. Doing so would increase the shooter's status.

The Mexican Mafia also adopted a "no-snitch rule" which was the cardinal rule of the organization. The penalty for snitching was death. Enriquez explained that the Mexican Mafia murders snitches. The protocol for doing so was to provide paperwork to the crew chief, who must approve the hit.

A "burnout" phone line "is part of an intricate system of communication that [gangs] utilize in incarcerated settings." Burnout lines are like "oxygen is to the body" for the Mexican Mafia. These phone lines are called "burnouts" because "once the phone company realizes they are not going to pay the bill, it's burned out" and disconnected. They are obtained by establishing an account with the social security number, date of birth, driver's license number and address, information obtained by identity theft. Enriquez's testimony regarding burnout telephone lines was supported by Detective Sloan, who heard a recorded telephone call made on May 5, 2006, in which appellant spoke to Stephanie who told him that someone from E.K. was in Trouble's module. He testified that phones are used in jail between gang members for criminal gang activity.

The prosecutor played a recording of telephone conversations between appellant and Stephanie, relating to appellant's efforts to pressure Turcios to recant his statement implicating appellant. Enriquez interpreted the calls as follows: "They are using a pre-established intricate system of communication that we call burnout. They are contacting individuals on specific floors [of the jail] and specific modules in order to locate this individual, number 1; and number 2, identify him as being a rat; and number 3, coerce him to change his testimony. And they are using a well-established, well-organized infrastructure that the Mexican Mafia utilizes for Surenos [members of different Southern California gangs], who are the army and supporters and the back bone."

Enriquez explained that gang members are "[v]ery sensitive to [acts of] disrespect," and respond with violence. Gangs expect their members to engage in violent behavior, not only to protect gang territory but to "enhance[] the gang's reputation." The gang member moves up the gang hierarchy by committing violence. It may be disrespectful to ask a gang member to leave an area. Gangs also engage in witness intimidation through threats, assaults or just looks. Family members are approached to intimidate and dissuade a witness from testifying. Merely letting a witness know that a loved one had been located is threatening. Enriquez opined "with complete confidence" that there is no evidence appellant disseminated the paperwork to defend himself, rather than to eliminate Leon and Carreno.

Detective House also testified as a gang expert, specializing in the VHG gang. He agreed with Enriquez's opinions. Detective House discussed the history of the VHG gang, its size, identifying symbols, tattoos, graffiti, territory, primary activities, including assaults, robberies, vehicle thefts, firearm and narcotics violations, extortion and hate crimes and its hostility to, and assaults on, Blacks. Detective House testified to the predicate offenses required for the gang enhancement.

Detective House opined that all of the crimes in this case were committed for the benefit of, in association with or at the direction of the VHG gang. The identity theft benefited the gang by allowing the gang to open a fraudulent phone line which gang members used to communicate amongst each other, inside the jail and outside. The gang used that phone line to arrange a plan, track down Leon, and assist the gang by frustrating prosecution of a VHG gang member by scaring witnesses from coming to court or intimidating or killing witnesses who were cooperating with the police. The conspiracies also benefitted the gang because they "identif[ied] persons who [had] spoken to the police or [had] cooperated with the police who [were] members of the gang and help[ed] assist the gang and the Mexican Mafia in targeting those individuals to be killed, thereby getting rid of a source of information to the police."

The defense's evidence

Michelle Avalos, a friend of appellant and Stephanie, testified that she was at Stephanie's on the night of the shooting, and appellant was asleep at the time of the shooting and did not wake up until 7:30 the next morning.

Appellant testified on his own behalf. He denied shooting at the Burris residence, robbing Turcios, personally engaging anyone to commit identity theft and dissuading anyone from testifying, and engaging in a campaign to intimidate or threaten anyone.

Appellant admitted that he encouraged Stephanie to get a burnout phone line, and that someone used another woman's identity to do so. He claimed the phone benefited Lakey, who did not have to pay the bills. It was not for the gang's benefit. He added: "I mean, I did it for me, but — I have to call the house. I need to talk to my Mom. I'm fighting life in jail, she wants to know how I'm doing." But Lakey was not the only person who used the burnout phone, which appellant shared with other gang members, "if they need[ed] it."

Appellant claimed that he arranged to have paperwork showing that Leon and Carreno had "snitched" on him distributed, though he knew it would endanger their lives, because he was concerned that there were false rumors that he, Lakey and Stephanie had "snitched." He insisted it was not his purpose to endanger their lives, but to clear up those rumors. While he was aware paperwork was being delivered to Badger, appellant claimed it was not to help the gang, but to help his family.

In one of his telephone conversations on the burnout line, appellant discussed killing Leon in Mexico. In another phone call, appellant told Stephanie, "it's the shit on [Leon]." In yet another telephone call, he told Stephanie to find Turcios's girlfriend.


I. Instructional error

A. Background

The consolidated charges in this matter arose from three separate incidents committed at different times; the December 31, 2005 shooting at Burris's residence, the January 9, 2006 robbery of Turcios, and the conspiracies to dissuade witnesses to those two crimes, the acts in furtherance of which began on January 22, 2006. The prosecution charged appellant with three separate conspiracies; a conspiracy to dissuade Leon, a conspiracy to dissuade Carreno, and a conspiracy to dissuade Turcios. The conspiracies with respect to Leon and Carreno were premised upon some of the same overt acts.

B. Contention

Appellant contends that the trial court erred in failing to instruct the jury that it had to determine whether there was one or more separate conspiracies. He claims that there was only one conspiracy because all three crimes alleged as separate conspiracies involved the same conspirators, occurred during the same time period, involved the same motive (to refute a rumor that appellant was a snitch), involved the same modus operandi (circulating "paperwork" and using a "burnout" line), and involved an overriding objective of dissuading witnesses from testifying against him. Though we do not agree that there was instructional error, we nonetheless conclude that there was insufficient evidence to support any more or less than two conspiracies.

C. Elements of a conspiracy

A conspiracy is an agreement by two or more persons to commit any crime. (§ 182, subd. (a)(1); People v. Morante (1999) 20 Cal.4th 403, 416 (Morante); People v. Vu (2006) 143 Cal.App.4th 1009, 1024.) A conviction of conspiracy requires proof of: (1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy. (§§ 182, subd. (b), 184; People v. Jurado (2006) 38 Cal.4th 72, 120; Morante, supra, at p. 416; People v. Vu, supra, at p. 1024.) "In a conspiracy, `the gist of the offense is the unlawful agreement between the conspirators to do an act contrary to law, accompanied by an overt act to at least start to carry the conspiracy into effect.' [Citation.]" (People v. Vargas (2001) 91 Cal.App.4th 506, 552 (Vargas).)

D. One or more conspiracies

"`Performance of separate crimes or separate acts in furtherance of a conspiracy is not inconsistent with a "single overall agreement."'" (Vargas, supra, 91 Cal.App.4th at pp. 553-554; Braverman v. United States (1942) 317 U.S. 49, 53 ["Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one"]; see also People v. Meneses (2008) 165 Cal.App.4th 1648, 1669-1670 (Meneses).) "[W]here the evidence shows that a group of conspirators agreed to commit a number of different crimes incidental to a single objective, there is only one conspiracy, and convictions of multiple conspiracies cannot be sustained." (People v. Liu (1996) 46 Cal.App.4th 1119, 1133.)

The test of whether a single conspiracy has been formed is whether the acts "were tied together as stages in the formation of a large all-inclusive combination, all directed to achieving a single unlawful end or result." (Blumenthal v. United States (1947) 332 U.S. 539, 558-559 (Blumenthal); see also People v. Morocco (1987) 191 Cal.App.3d 1449, 1453 (Morroco); Blumenthal, supra, 332 U.S. at p. 558.)

E. Instruction on one or more conspiracies

In criminal cases, "`"even in the absence of a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case."'" (People v. Breverman (1998) 19 Cal.4th 142, 154.)

While the question of whether there is one or more than one conspiracy is ordinarily a factual one that the jury must decide based upon proper instruction (see Morocco, supra, 191 Cal.App.3d at p. 1453; see also People v. Cook (1984) 151 Cal.App.3d 1142, 1146; Meneses, supra, 165 Cal.App.4th at p. 1679; People v. Jasso (2006) 142 Cal.App.4th 1213, 1220 (Jasso); but cf. People v. Liu, supra, 46 Cal.App.4th at p. 1133; People v. McLead (1990) 225 Cal.App.3d 906, 921; People v. Davis (1989) 211 Cal.App.3d 317, 322), a trial court is required to instruct the jury to determine whether a single conspiracy or multiple conspiracies exist only when there is evidence to support alternative findings. (Jasso, supra, at p. 1220.) Here, there is no evidence to support a finding that there was only one conspiracy.

Assessing whether individuals who agree to commit a number of criminal acts have engaged in only one conspiracy, rather than multiple conspiracies, requires more than conjuring up some general objective that is broad enough to encompass all of the criminal acts. Virtually any two offenses can be viewed to be within a stated objective, if the objective is stated broadly enough. (See, i.e., People v. Perez (1979) 23 Cal.3d 545, 552 (Perez) [objective of sexual gratification "is much too broad and amorphous to determine the applicability of section 654"].) Instead, it requires a careful and realistic evaluation of all of the facts and circumstances to determine whether multiple objectives were at work. Among the factors to be considered in making this determination are whether the conspiracies occurred over the same narrow time frame, the crimes involved the same motives, and the crimes occurred in the same place and by the same means. (Jasso, supra, 142 Cal.App.4th at p. 1221.)

Overwhelming evidence compels the conclusion that there were two, and only two, objectives at work with regard to appellant's three alleged conspiracies, and, hence, there were only two conspiracies proven. One was a conspiracy to have Leon and Carreno murdered for informing on appellant. Leon and Carreno were VHG gang members, as was appellant. They lived together, gave information to the police at about the same time regarding the same offense; the shooting at the Burris residence. Appellant's dual objectives in having them killed were to prevent his conviction of the shooting and to retaliate, following gang protocol, against them for violating the sacred gang rule against snitching. Enriquez described this protocol as requiring paperwork to establish that Leon and Carreno had informed on appellant and presenting that paperwork to VHG gang leaders, who decide whether the informers should be murdered.

Appellant followed this protocol in implementing the conspiracy against both Leon and Carreno. Appellant aided by Stephanie and Lakey obtained police reports which indicated that Leon and Carreno had informed on him regarding the Burris shooting. Pursuant to search warrants, this paperwork was found at appellant's residence and at the residences of Badger and other VHG gang leaders. There was also an overlapping of the operative acts alleged in furtherance of these two alleged conspiracies. There was no conceivable, reasonable construction of the evidence permitting the conclusion that efforts to dissuade Leon and Carreno had different objectives so as to support separate conspiracies.

The alleged conspiracy to dissuade Turcios stands on a different footing and was not a part of the conspiracy to dissuade Leon and Carreno. Turcios gave a statement to police identifying appellant as the robber, not as a fellow gang member, as were Leon and Carreno, but as the crime victim. The robbery of Turcios was unrelated to the Burris shooting, happened at a different time than the shooting and was initially filed as a separate proceeding. The overt acts in furtherance of the conspiracy, as alleged in the information, are completely different than those that are alleged as part of the conspiracy to dissuade Leon and Carreno. There is also scant evidence that appellant wanted to kill Turcios for giving his statement, instead seeking to intimidate him into recanting his statement.

Appellant argues that he provided the paperwork to rebut false rumors that he, Lakey and Stephanie had snitched. The only way to clear up these rumors, he asserts, was to demonstrate to gang leaders that Leon and Carreno had snitched. But there was no evidence of what appellant purportedly snitched about, as he clearly did not snitch about his own involvement in the Burris shooting. There was also no evidence as to how providing paperwork showing that Leon and Carreno had snitched against appellant would lay to rest unidentified rumors that appellant and his family were snitches.

In light of this evidence, we conclude that the trial court had no sua sponte duty to instruct the jury that it had to decide whether there were three conspiracies or one conspiracy because there was no substantial evidence that the Turcios conspiracy was part of the Leon/Carreno conspiracy. (Jasso, supra, 142 Cal.App.4th at p. 1220 [trial court need not instruct jury to determine whether a single conspiracy or multiple conspiracies when evidence fails to support alternative findings].) We further conclude with respect to the alleged Leon and Carreno conspiracies that there was no substantial evidence that they were two separate conspiracies, but overwhelming evidence they were part of a single conspiracy. Because there was insufficient evidence to support alternative findings, the trial court was not required to give such an instruction with respect to those conspiracies. However, because there was no credible evidence that would have enabled the jury to have found them to be separate conspiracies, we reverse one of those conspiracies.

II. Section 654 stay of conspiracy counts

A. Background

Appellant was convicted of shooting at an inhabited dwelling, being a felon in possession of a firearm, robbery, identity theft and three counts of conspiracy to dissuade a witness. He was sentenced as follows: a determinate sentence of 16 years eight months, arrived at by imposing the upper term of five years on the principal robbery count plus an additional 10 years for the gang enhancement, and a consecutive one-third of the midterm on the identity theft count and the related gang enhancement of one year eight months; an indeterminate sentence of 46 years to life, arrived at by imposing 15 years to life for shooting at an inhabited dwelling plus 10 years for the gang enhancement, and consecutive seven years-to-life sentences on each of the three conspiracy counts.

B. Contention

Appellant contends that this matter must be remanded to the trial court to determine whether one or more of the conspiracy counts should be stayed pursuant to section 654. He argues that the trial court never addressed the application of that section and hence never made findings regarding its applicability to the conspiracy counts. This contention is meritless.

C. Section 654

Section 654 provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a), italics added.) "[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction." (Perez, supra, 23 Cal.3d at p. 551.)

"If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Perez, supra, 23 Cal.3d at p. 551.) If, on the other hand, "the [defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639 (Beamon).) Whether a course of conduct is divisible and therefore gives rise to more than one act depends on the "`intent and objective'" of the actor and is primarily a question of fact. (People v. Cleveland (2001) 87 Cal.App.4th 263, 267; see People v. Flores (2005) 129 Cal.App.4th 174, 186; see also People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We must determine whether the violations were a means toward the objective of commission of the other. (See Beamon, supra, at p. 639.)

As discussed in part I, ante, we conclude that the evidence supports two conspiracy convictions because they had separate intents and objectives; a conspiracy to dissuade Leon and Carreno and a conspiracy to dissuade Turcios. Those conspiracies were not part of an indivisible course of conduct. Appellant's objective with regard to Leon and Carreno was to avoid conviction for the shooting at the Burris residence and to seek revenge against fellow gang members who had witnessed the shooting and informed on appellant. The objective of the conspiracy to dissuade Turcios was to avoid conviction on an entirely separate robbery committed more than a week after the Burris-residence shooting. Turcios was not a VHG gang member, like Leon and Carreno, and not a mere witness to the crime, but was the victim. The record supports the inference that the objective of the conspiracy was to get Turcios to recant the statement he gave to police. Each of the two conspiracies had different victims and different operative acts in furtherance of the conspiracy. Consequently, the trial court was justified in not staying either of the two conspiracies.

Contrary to appellant's assertion, we need not remand to the trial court to make its own findings under section 654, because the consecutive sentences it imposed implied a finding of separate intent and objective as to each of the two conspiracies. As discussed in part I, ante, that implied finding is supported by substantial evidence. (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1310 [an implied finding that the defendant had a separate intent and objective in committing multiple offenses will be upheld if supported by substantial evidence].)

III. Sufficiency of the evidence

A. Gang allegation on conspiracy claims

1. Contention

Appellant contends that there is insufficient evidence to support the gang enhancement in connection with the conspiracy counts. He argues that the unsupported gang expert's testimony is insufficient by itself and is not "accompanied `by some substantive factual evidentiary basis.'" This contention is without merit.

2. 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).)

3. 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 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 does not criminalize mere gang membership. (Id. at pp. 623-624.) 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).) "[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); People v. Ochoa (2009) 179 Cal.App.4th 650, 663 (Ochoa).) The crime must have "some connection with the activities of a gang." (See Martinez, supra, at p. 761 [discussing § 186.30].)

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. (Ochoa, supra, 179 Cal.App.4th at p. 665.)

The conspiracies to dissuade the witnesses against appellant not only had "some connection with the activities of a gang" (Martinez, supra, 116 Cal.App.4th at p. 761), gang involvement pervaded them. There was substantial evidence that the shooting at Burris's residence was gang related. Enriquez testified that the Mexican Mafia sanctioned shootings at Blacks, that gang members who shot at Blacks enhanced their status within the gang, and that the VHG gang was loyal to, and followed the rules of, the Mexican Mafia. Burris, who was Black, testified that he was constantly harassed by VHG gang members because of his race. The shooting was for no apparent reason other than a random gang shooting because of Burris's race. Supporting this conclusion is the evidence that within hours of the shooting, a car drove into Burris's driveway, and an occupant shouted, "Fuck niggers. . . . This is Hawaiian Gardens," suggesting the motive for the shooting to be race and that the perpetrators were VHG gang members. The VHG gang had a motive to protect appellant, one of its members, from prosecution and conviction of the gang crime.

Additionally, Leon and Carreno were VHG gang members, as was appellant. Consequently, their dispute was an intra-gang dispute that the VHG gang had reason to oversee. The gang had an interest in weeding out members who snitch, as snitching placed the gang at risk and challenged its fundamental precept of gang loyalty. The Mexican Mafia had adopted a "no-snitch rule." The penalty for snitching was death. Enriquez explained that the Mexican Mafia murders snitches. The protocol for doing so was to provide paperwork to the crew chief, who must approve the hit.

Leon and Carreno snitched on appellant, violating this fundamental gang rule. Appellant therefore followed gang protocol to have Leon and Carreno punished. He conspired to obtain paperwork and oversaw its presentation to VHG gang members and leaders, including Big Chongo, seeking approval for the hit. Gang members were intimately involved in appellant's efforts to have Leon and Carreno murdered.

Furthermore, the acts in furtherance of the conspiracy to kill Leon and Carreno were accomplished by use of gang resources. The People sought to establish the conspiracy by dozens of hours of recorded telephone calls made by appellant from jail to the "burnout" line that was obtained by Stephanie at appellant's urging. Enriquez testified that such lines were part of the gang's intricate system of communication within the jail. Detective House testified that the gang used that phone line to arrange a plan to intimidate or kill witnesses cooperating with police. Appellant himself testified that the burnout phone line was for him and other gang members "if they need it." It was used by gang members in different parts of the jail to communicate with each other.

The conspiracy to get Turcios to recant the statement he gave police was also gang related. The underlying robbery of Turcios had the earmarks of a gang crime. It occurred in VHG gang territory, and all of the robbers were VHG gang members. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1197-1198 [where gang member defendant committed two robberies and an attempted robbery with two other men from the same gang, the crimes were committed for the benefit of, and the direction of, or in association with a gang].) Appellant asked Turcios, "Where he was from," a question the gang expert indicated was a gang challenge. In telephone calls arranging to get Turcios to recant his statement to police, appellant referred to Turcios as "the fool from EK," a reference to "Evil Klan" tagger group, to which Turcios was a former associate.

Enriquez testified that the gang used extensive resources to pressure Turcios into recanting his statement. The burnout phone line was used to obtain information about him and his girlfriend. Appellant told Stephanie to ask anyone who called if they knew of the location of anyone from E.K. He told her to ask "homies" who called if they knew "that fool from E.K." Stephanie told him that another person, who called her as she was speaking with appellant, said that appellant needed papers on E.K. The caller said he was going "to put it on the [prison] tier," and send it "from homie to homie to find that fool from Evil Klan." In one conversation, appellant told Stephanie to tell "the fool from E.K. to go back to court and change his statements." He told her to find out what she could about Turcios and tell callers on the burnout line to "run a make on him." He also told Stephanie to talk to Turcios's girlfriend, so Turcios would know they knew his girlfriend's whereabouts, a tacit threat that they could harm her if Turcios did not recant. In many of the phone conversations, repeated references were made to various VHG gang members.

4. Intent to promote gang members' conduct

There was also sufficient evidence of the second prong of the gang enhancement; the specific intent to promote, further or assist in criminal conduct by gang members. Like intent in other contexts, this specific intent is ordinarily proved by circumstantial evidence. (See People v. Phillips (2010) 188 Cal.App.4th 1383, 1395 [discussing intent under § 647.6; see People v. Letner (2010) 50 Cal.4th 99, 168 [intent to commit larceny when entered home]; People v. Lashley (1991) 1 Cal.App.4th 938, 945 [intent to kill rarely be proven by direct evidence for "[o]ne who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots"].)

As stated in Villalobos, "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." (Villalobos, supra, 145 Cal.App.4th at p. 322.)

The calls on the burnout phone line establish that the conspiracies to intimidate witnesses were effectuated pursuant to gang protocol and with VHG gang cooperation. Numerous gang members were involved in the efforts to locate witnesses. Badger, a VHG gang leader, had to be involved in approving a hit on Leon and Carreno. This evidence was sufficient to support a finding that appellant intended to assist in criminal conduct by gang members.

B. Gang allegation on identity theft count

Appellant contends that there was insufficient evidence to support his conviction of identity theft. He acknowledges that "[t]here was evidence that the burnout phone line was used by some of [appellant's] fellow inmates, in addition to its use by [appellant] and his family. Thus, it could be argued that this evidence corroborated the expert opinions that the identity theft benefited [appellant's] gang. However, such an argument should not prevail because there was no corroborative evidence that [appellant] committed the identity theft to benefit his gang." We disagree.

Doolan's identity was stolen in order to use it to obtain a burnout phone line. Appellant encouraged Stephanie to obtain that line. Enriquez testified that burnout phone lines were "[a]s important [to the Mexican Mafia] as oxygen is to the body. It's communication on the most fundamental level." Appellant acknowledged that the burnout phone line was not only for him but for other gang members who "needed to use it." It was used as a critical link in appellant's efforts to intimidate or eliminate witnesses, to locate Leon in the jail, to collect the paperwork and to contact gang members in order to obtain authority to conduct a hit on Leon and Carreno. Several gang members were mentioned during phone calls regarding the locating of witnesses, and the burnout phone line was used to communicate with other gang members regarding these endeavors. Simply because appellant may have benefitted personally from the intimidation does not mean that he did not also intend to benefit the gang.

IV. Admission of gang evidence

A. Background

As set forth in detail in the "Factual Background," Enriquez, a former Mexican Mafia member, testified to numerous facts and opinions regarding the Mexican Mafia. For example, he testified that it was expected that members of a gang would commit violent acts, the VHG gang was loyal to the Mexican Mafia, it was difficult to become a Mexican Mafia member from a local gang and required a high propensity for violence, and that a new Mexican Mafia member was given a territory in which he could tax and conduct illicit activity with complete autonomy.

B. Contention

Appellant contends that the gang evidence introduced by the prosecution was "excessive and often irrelevant" (italics added), including the "many facts and opinions about the Mexican Mafia."5 While we agree with appellant that some of the gang evidence was excessive and irrelevant, we conclude that a proper foundation for the relevance of much of the Mexican Mafia evidence was laid and do not find the excessive evidence prejudicial.

C. Standard of Review

We review the admission and exclusion of evidence on relevance and Evidence Code section 352 grounds for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1198.) A trial court's admission of gang evidence is reviewed on appeal under the abuse of discretion standard. (People v. Carter (2003) 30 Cal.4th 1166, 1194.) Abuse occurs when the trial court "exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.)

D. Admissibility of gang evidence

All relevant evidence is admissible. (Evid. Code, § 351.) Relevant evidence is all evidence "including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) In determining whether evidence has a tendency to prove a material fact, it must be determined whether it "`"logically, naturally, and by reasonable inference"'" establishes fact. (People v. Thompson (1980) 27 Cal.3d 303, 316, overruled on other grounds in People v. Rowland (1992) 4 Cal.4th 238, 260.)

Gang evidence is not admissible if its only purpose is to prove the defendant's disposition. (People v. Ruiz (1998) 62 Cal.App.4th 234, 240 (Ruiz).) However, it is not per se inadmissible but may be admitted if otherwise relevant. (People v. Perez (1981) 114 Cal.App.3d 470, 477.) Gang affiliation evidence is admissible when relevant to motive (People v. Martin (1994) 23 Cal.App.4th 76, 81), intent, identity and modus operandi (People v. Hernandez (2004) 33 Cal.4th 1040, 1049; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369-1370).

However, because such evidence creates a risk that the jury will infer that the defendant has a criminal disposition and is therefore guilty of the charged offense, and has "a highly inflammatory impact on the jury[,] trial courts should carefully scrutinize such evidence before admitting it." (People v. Williams (1997) 16 Cal.4th 153, 193.) Gang affiliation evidence is condemned if such evidence is only "`tangentially relevant, given its highly inflammatory impact.'" (Ruiz, supra, 62 Cal.App.4th at p. 240.)

The gravamen of appellant's claim is that Enriquez gave substantial testimony about the Mexican Mafia of which appellant was not even a member. He argues: "Specifically, the prosecution's primary expert witness, `defecting' Mexican Mafia member Enriquez, testified at length about his personal history with the Mexican Mafia and that notorious gang's history, rules and violent nature—none of which was relevant to Escamilla or the charges against him." We disagree.

The incidents from which the charges against appellant arose involved gang activity. (See discussion in part III A & B.) Appellant was a member of the VHG gang. The shooting at the home of Burris, who is Black, for no apparent reason, suggests gang motivation, as the VHG gang followed Mexican Mafia directives encouraging shooting at Blacks. Leon and Carreno, who witnessed the shooting, were both VHG gang members. Appellant's dispute with them over their providing information to police was an intra-gang conflict, intimately involving gang leadership. Turcios was robbed by several members of the VHG gang. He was asked where he was from, in street vernacular, meaning with what gang was he affiliated. He said he was not in a gang. The telephone calls appellant made from jail utilized a burnout phone line also used by other gang members, and those conversations included numerous references to gang members and leaders. Based on this evidence, appellant is forced to concede that some gang evidence was relevant and appropriate.

Contrary to appellant's assertion, a proper foundation was laid for admission of much of the evidence regarding the Mexican Mafia. Enriquez's testimony as to his past membership in the Mexican Mafia was relevant to his gang expertise and his credibility. Basic evidence regarding the Mexican Mafia, including its structure, Enriquez's position in it, and its membership of only 150 to 200, added to his credibility by virtue of his important position within the gang and to his knowledge of its workings. He was in prison for life for two 1990 murder convictions, suggesting that he would derive no benefit for his testimony. In any event, he could have been impeached with those convictions if he had not raised them. The fact that he had assisted law enforcement was important to further enhance the credibility of his opinions. His testimony that he was targeted for assault and murder was germane to show that he had every reason not to testify, and did so only to provide the truth.

Enriquez testified that the VHG gang was loyal and "subservient" to the Mexican Mafia. "Members of the [VHG gang] are expected to follow the rules of the Mexican Mafia." In fact, the founder of the Mexican Mafia was a former member of the VHG gang. This testimony made at least some of the rules of the Mexican Mafia germane to the actions of VHG gang members, because VHG followed Mexican Mafia rules.

Enriquez explained that the Mexican Mafia issued an edict several years before the Burris shooting to shoot Blacks. Therefore, if a VHG gang member did so with the approval of the neighborhood leader of the Mexican Mafia, it would enhance the shooter's reputation within the gang. This provided the motive for appellant to shoot at the Burris home without provocation.

Further, Enriquez testified that the Mexican Mafia adopted a no-snitch rule as a cornerstone of its operations. The penalty for snitching was death, and the protocol for dealing with snitches was to provide paperwork to gang leaders. The crew chief had to approve a hit. This evidence explained much of the conduct of appellant. He, Lakey and Stephanie collected paperwork and transmitted it to VHG gang leaders, including Badger, the VHG gang crew chief. Enriquez explained that that had to be done in order to obtain permission to murder Leon and Carreno. Appellant was aware that the paperwork had been given to Badger. Evidence as to how Mexican Mafia members were given a territory, formed crews, with a crew chief, and were able to conduct illegal activity autonomously was relevant to establish that Badger, a crew chief, could approve the murders of Leon and Carreno and why the paperwork was given to him.

Appellant claims that evidence that the Mexican Mafia and affiliated gangs commit murder was irrelevant because appellant was not charged with murder. Appellant misses the point. Appellant shot at Burris's residence and could have easily killed Burris or others attending his party. This evidence showed that gang's propensity to commit acts of serious violence.

While we agree that some of the Mexican Mafia evidence may have been of little or no relevance, such as, by way of example, the evidence regarding that gang's use of churches to promote its criminal activities, we find that evidence harmless.

E. Harmless error

To the extent that some of the gang evidence was excessive we conclude that the error was harmless in that it is not reasonably probable that had it not been admitted a result more favorable to appellant would have resulted. (People v. Fields (2009) 175 Cal.App.4th 1001, 1018 [relying on People v. Watson (1956) 46 Cal.2d 818, 836 standard of harmless error for erroneous admission of evidence].) The evidence against appellant was strong, as he was identified as the shooter in the Burris shooting by at least three witnesses, was identified as the robber in the Turcios robbery by Turcios and Carreno, and the evidence of his conspiracies was almost exclusively established by his recorded telephone conversations. Moreover, this was a gang case with gang allegations. Therefore, significant gang evidence was properly admitted. Given the widespread knowledge of gang violence, it is unlikely that any of the irrelevant evidence impacted the jury's verdict.


The conspiracy conviction in count 6 is reversed, and the judgment is otherwise affirmed. On remand, the trial court is directed to correct the abstract of judgment to reflect the reversal of the conspiracy conviction.

We concur:

DOI TODD, Acting P. J.



1. All further statutory references are to the Penal Code unless otherwise indicated.
2. "Boo bop" means assault, hit, kill.
3. Big Chongo is the VHG gang member named Carlos "Topo" Graxiola, a "validated Mexican Mafia affiliate."
4. Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
5. Appellant makes no attempt to itemize each and every allegedly irrelevant question and answer regarding gangs that he challenges, but rather raises this claim with generalities. Consequently, we cannot decide the propriety of specific questions and answers. We therefore discuss this contention in general terms.


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