Filed 9/11/15 P. v. Harvey CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049724

                   v.                                                  (Super. Ct. No. 10HF1993)

RICKY LANCE HARVEY,                                                    OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Affirmed.
                   Laurel M. Nelson, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.


                                          *                  *                  *
              A jury found defendant Ricky Lance Harvey guilty of first degree
residential burglary (Pen. Code, §§ 459, 460, subd. (a)) and street terrorism (Pen. Code,
§ 186.22, subd. (a)). On the burglary, the jury also found a gang enhancement allegation
(Pen. Code, § 186.22, subd. (b)) to be true. The court found defendant had suffered a
prior federal conviction for bank robbery, and denied his motion to strike the prior under
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court sentenced him to 18
years in state prison on the burglary count and stayed sentencing on the street terrorism
count under Penal Code section 654.
              In his appeal, defendant contends there is a lack of substantial evidence
supporting his convictions for burglary and street terrorism, and the jury’s true finding on
the gang enhancement. We disagree with all three contentions and affirm the judgment.


                                          FACTS


              When witness Arceneaux noticed men walking around a house, he became
suspicious and called 911. He gave the operator a description of the car in which the men
had arrived, a black Cadillac, including the license plate number. Two men had come out
of the car and had approached the house. Arceneaux saw one of the men, his hand
covered by a shirt, opening the entrance to the back yard of the house. Thereafter both
men entered the house. Arceneaux described one of the men as wearing khaki shorts, red
and white shoes, and a long sleeve white shirt.
              Arceneaux saw the homeowner return and park his car in the driveway.
Thereupon, he saw one of the suspects leave the house through the front door. Later that
day, Arceneaux was asked to identify a person. Although he did not recall saying so at
the time of the trial, when a deputy sheriff testified that Arceneaux was presented with
defendant he said, “‘That’s him, no doubt in my mind.’”



                                             2
              The homeowner testified he found the doors in the back and the front of the
house open. Before leaving, he had locked the doors and closed all the windows.
Upstairs, he found jewelry on the floor, clothing that had been removed from the closet,
drawers opened in his office, and items scattered about. Upon calling 911, the dispatcher
told him to leave the house and he did so. Once outside, he saw his daughter’s trick-or-
treat bag which contained some of his wife’s jewelry.
              Deputy Sheriff Manuel Cruz was dispatched to the scene of the suspected
burglary and given the description of the suspect’s vehicle. A few minutes after arriving
at his destination, Cruz saw the vehicle and pursued it. A sheriff’s department
investigator, who had heard the dispatch, subsequently saw the vehicle and followed it.
She lost contact for a short while and then found it again, unoccupied and stopped with
the engine running. Yet another sheriff’s department employee, Sergeant Brian Heany,
who had also heard the dispatch, found a black male, resembling the description given by
Arceneaux, on the ground, hiding in some shrubbery and arrested him. Cruz then drove
Arceneaux to Heany’s location where Arceneaux identified defendant as one of the
persons he had seen entering the house.
              Officer Christopher Soto, a member of the Los Angeles Police Department,
qualified as an expert on gang culture. He provided some history of the Crips and
specifically the “East Coast Crips,” a criminal street gang in Los Angeles. Soto monitors
this gang and has spoken to 50 or 60 of its members. According to Soto, the gang has
over 300 members and has existed since the 1970s. Its members wear distinctive
clothing. He also described the gang’s primary criminal activities, which included crimes
committed outside its territory.
              Soto identified defendant and the two other men involved in the burglary as
members of the gang. He cited several police interviews where defendant identified
himself as being a member of the East Coast Crips and claimed he used the gang moniker
“Tiny Bam.” Soto explained how gang members gain respect by committing crimes.

                                             3
Based on hypothetical facts similar to those involved in the case, Soto expressed the
opinion a burglary would benefit the gang.
              Defendant testified on his own behalf. He claimed he ceased being active or
involved with the East Coast Crips gang after his release from prison. Although he
acknowledged having been in the black Cadillac with the two other men, he testified he
had understood the purpose of the trip to have been to obtain marijuana and denied any
discussion of a burglary. Defendant was the only one of the three persons in the car who
had a driver’s license. After the police followed their car, he had demanded to be let out
and only hid from the police because he realized “the sun was up” and he was on
probation. Later, he stated he had hidden because he “knew something was going on.”


                                      DISCUSSION
1. Introduction
              Defendant bases his entire appeal on the argument the evidence was
insufficient to support his conviction on each of the charged crimes and the gang
enhancement finding. “‘When the sufficiency of the evidence is challenged on appeal, the
court must review the whole record in the light most favorable to the judgment to
determine whether it contains substantial evidence—i.e., evidence that is credible and of
solid value—from which a rational trier of fact could have found the defendant guilty
beyond a reasonable doubt.’ [Citation.] In applying this test, we must ‘presume in support
of the judgment the existence of every fact the trier could reasonably deduce from the
evidence.’” (People v. Fosselman (1983) 33 Cal.3d 572, 578.)


2. Substantial evidence supports the jury’s conclusion defendant participated in the
burglary.
              Emphasizing the absence of DNA evidence, the absence of fingerprint
evidence, and the absence of information from his cell phone, defendant argues there was

                                             4
insufficient evidence to support his conviction. But, as the Attorney General points out,
attempting to place the focus on “missing evidence” does not answer the question
whether the evidence that was presented was of sufficient substance to support the
conviction. We would be hard put to find a criminal conviction where defendant would
be unable to point to absent items of evidence; this is not the test for substantial evidence.
              We agree with the Attorney General the evidence identifying defendant as a
participant in the burglary is substantial: Arceneaux’s physical description to the police of
the person he had seen enter the neighbor’s house met defendant’s appearance when he
was apprehended; long sleeve white shirt and red and white shoes. The fact the shoes
worn by defendant were actually red and grey does not render Arceneaux’s testimony
insubtantial. Also, within two hours after the incident, Arceneaux identified defendant:
“That’s him. No doubt in my mind.” Arceneaux claimed loss of memory at the time of
the trial, but he acknowledged the information he had given to the police was truthful and
accurate. And, although defendant asserted a lack of understanding of the purpose of the
trip, he admitted being in the automobile Arceneaux identified as the one used by the
burglars. This admission lends further weight to Arceneaux’s identification. As the
United States Supreme Court held: “the critical inquiry on review of the sufficiency of
the evidence to support a criminal conviction . . . [is] to determine whether the record
evidence could reasonably support a finding of guilty beyond a reasonable doubt.”
(Jackson v. Virginia (1979) 443 U.S. 307, 318 [99 S.Ct. 2781, 61 L.Ed.2d 560].) This test
was adopted by our Supreme Court in People v. Towler (1982) 31 Cal.3d 105, 117.) The
evidence presented at trial meets this test.


3. Substantial evidence supports the jury’s conclusion defendant was guilty of street
terrorism and acted for the benefit of his gang.
              As we noted, Soto qualified as an expert on the East Coast Crips gang
culture. He expressed the opinion defendant belonged to the East Coast Crips and based

                                               5
this, in part, on defendant’s admission of such membership, his association with other
gang members in the commission of the crime, and his having gang tattoos. Soto opined
the two other men involved in the burglary were also East Coast Crips members and
identified the information upon which he based this opinion. He explained how gang
members gained respect by committing crimes.
              “Under [Penal Code] section 186.22[, subdivision] (a), to be convicted of
street terrorism a person must ‘actively participate[] in a[] criminal street gang with
knowledge that its members engage in or have engaged in a pattern of criminal gang
activity, and . . . willfully promote[], further[], or assist[] in any felonious criminal
conduct by members of that gang . . . .’ ‘[A] person “actively participates in any criminal
street gang,” . . ., by “involvement with a criminal street gang that is more than nominal
or passive.”’” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.) In addition, to
the evidence supporting the jury’s guilty verdict on the residential burglary charge, Soto’s
expert testimony provided a basis for the jury to find the East Coast Crips was a criminal
street gang, defendant actively participated in gang activities, and that the other persons
who participated in the burglary with him also belonged to this gang. (People v.
Rodriguez (2012) 55 Cal.4th 1125, 1132 [“The plain meaning of section 186.22(a)
requires that felonious criminal conduct be committed by at least two gang members, one
of whom can include the defendant if he is a gang member”].) Thus, the evidence
supports defendant’s conviction for street terrorism.
              The same is true for the gang enhancement. “As we have previously
explained, the Legislature included the requirement that the crime to be enhanced be
committed for the benefit of, at the direction of, or in association with a criminal street
gang to make it ‘clear that a criminal offense is subject to increased punishment . . . if the
crime is “gang related.”’” (People v. Albillar (2010) 51 Cal.4th 47, 60.) One way a crime
can be found to be gang related is where it is “committed in association with the gang.”
(Ibid.; People v. Martinez, supra, 158 Cal.App.4th at p. 1332 [“‘[T]he jury could

                                               6
reasonably infer the requisite association from the very fact that defendant committed the
charged crimes in association with fellow gang members’”].) As noted, Soto opined the
other burglars belonged to the East Coast Crips and explained the basis for his opinion.
“The elements of the gang enhancement may be proven by expert testimony.” (People v.
Martinez, supra, 158 Cal.App.4th at p. 1332.)


                                     DISPOSITION


             The judgment is affirmed.




                                                RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



THOMPSON, J.




                                            7
