Filed 1/21/16 P. v. Lester CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE


THE PEOPLE,                                                          B260658

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA063333)
         v.

LUTHER D. LESTER,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen
Blanchard, Judge. Affirmed.
         Christine M. Aros, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.
                                          _______________________
       Luther Dean Lester appeals from a judgment of conviction after jury trial, for
second degree robbery (Pen. Code, § 211),1 and second degree commercial burglary (§
459); as to both counts it was found that the crimes were committed for the benefit of a
street gang. (§ 186.22, subd. (b)(1)(A), (B), (C).) We find no prejudicial error, and
therefore affirm the judgment.
                                 PROCEDURAL HISTORY
       An October 28, 2014 amended information, alleged in count 1 that on or about
June 14, 2014, appellant and William Ray Turner committed second degree robbery (§
211); in count 2 that appellant and Turner committed an assault with a semi-automatic
firearm (§ 245, subd. (b)); and in count 3 that appellant and Turner committed a second
degree commercial burglary (§ 459). Count 1 alleged that Turner personally used a
handgun, and count 3 alleged that Turner was armed with a handgun; count 2 alleged that
appellant personally used a handgun in the commission of the crime. (§§ 12022.5,
1192.7, subd. (c) & 667.5, subd. (c).) As to each of the counts it was alleged that the
crimes were committed for the benefit of, at the direction of, and in association with a
criminal street gang. (§ 186.22, subds. (b)(1)(A), (b)(1)(C).)
       A few days later the information was amended to eliminate count 2 in its entirety,
as well as to eliminate the firearm allegations in each of the remaining counts.
       On November 13, 2014, a jury found appellant guilty of counts 1 and 3, and found
the gang allegations true. On December 5, 2014, appellant was sentenced on count 1 to
13 years in state prison, constituting the middle term of three years, plus a consecutive 10
years for the gang enhancement. On count 3 he was sentenced to 12 years in state prison,
constituting the middle term of two years, plus 10 years for the gang enhancement. The
count 3 sentence was stayed pursuant to section 654. Appellant filed a timely appeal
from the judgment.




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


                                               2
                               FACTUAL BACKGROUND
       On June 14, 2014, John Ruh was working at The Dairy, a drive-through
convenience store in Lancaster, California. At approximately 8:30 p.m., a man entered
the store wearing shorts and no shirt, pressed a gun against Ruh’s head and throat, and
told Ruh to give him all the cash in the register, using threatening terms, including a
reference to “gunpoint” and to a known street gang. A customer then in the store fled.
Ruh opened the cash register and started to hand money to the man, who began to grab
money from the register.2
       When the man turned his back to leave the store, Ruh jumped on the man’s back,
with his arm around the man’s neck. At that point a second man, who Ruh had not seen
until then, pulled Ruh from the assailant’s back, and the two men ran off, having taken
about $200. Ruh then called the police, reporting that he had been robbed at gunpoint by
two skinny “Black kids,” one wearing black shorts with no shirt, the other (whose face he
did not see) wearing a white shirt. He described the weapon as a small semi-automatic
pistol. A few days later Ruh was able to identify Turner as the robber with the gun, from
a six-pack lineup shown him by the police; he could state only that the second man was a
Black male.
       At Turner’s home a search yielded shorts matching those Ruh had said his
assailant was wearing, and a black BB gun under a mattress in one of the bedrooms.
       Nicole Hill was appellant’s girlfriend, and Turner’s god-sister. Appellant was
arrested at the house of Hill’s grandmother in Palmdale, wearing a red hooded sweatshirt,
blue jeans, a red belt, and black shoes with red laces. Hill agreed to talk to officers a few
weeks after the robbery, and was read her Miranda rights on the way to the station. In a
recorded interview (played for the jury at Lester’s trial) Hill told the police that Lester
and Turner “both bang with PDL,” Pasadena Denver Lanes; that they had gang



       2
        The jury viewed one or more video and audio recordings of the events in the
convenience store, and was provided transcriptions of the audio portions of the
recordings.

                                              3
nicknames; that appellant had “Pasadena” tattooed on his back; and that Turner says
“Blood” a lot, and often talks with Lester about the Pasadena Denver Lanes gang.
        Hill told the police that when she was at Turner’s house babysitting on the
afternoon of the robbery, Turner and appellant had left the house as it was getting dark,
sometime after 5:00 p.m.; they had returned something like an hour later; Turner then left
again perhaps 10 minutes later, and appellant also left after another five minutes. When
they left, Turner was wearing shorts with no shirt, and appellant was wearing a red
sweater, gray sweatpants, and shoes with red laces.
        When Turner and appellant returned to the house, appellant told Hill they had
gotten some money, something over $100. When Hill asked him from where, he told her
“they hit a lick”—which Hill understood to mean they had robbed someone. Appellant
told her that Turner “went in the store first and then, I guess, he’s like, I, I went in the
store to check on [Turner] what he was doing, I guess, when [Turner] was trying to rob
the . . . .” “I guess [Turner] was fighting with the guy and they went, [appellant] said I
went, he went in there to try and help [Turner], whatever. And then I guess they went off
and they started running off, I guess.” According to Hill, appellant said he guessed
Turner went into the convenience store because he was “tired of being broke,” or that
Turner had said, “I’m tired of being broke.” Hill said that appellant told her that he had
seen Turner take cash from the register, and that when he went to help Turner, he had
“socked that nigger” off Turner. She identified appellant and Turner from a surveillance
video taken at The Dairy. She also identified the gun, which Turner had told her was a
fake.
        Hill (who did not testify voluntarily, and was taken into custody in order to obtain
her trial testimony) testified that she did not know whether Turner and appellant were
Pasadena Denver Lanes members; she had no recollection whether on the day of the
robbery Turner and appellant had left the house together, how long they were gone, or
whether they had money when they returned; she did not remember them saying they had
“hit a lick” or anything at all about a robbery; and she did not remember identifying



                                               4
appellant as the man who could be seen in the surveillance video, pushing the robbery
victim off Turner’s back.
       Detective O’Neal, a sheriff’s department detective specializing in gang members
and gang-related crimes in Los Angeles County, testified that Pasadena Denver Lanes is
one of at least hundreds of Blood gangs in the Los Angeles County area, with over 600
members in total and 30 to 40 members in the Antelope Valley. Common tattoos
identifying Pasadena Denver Lanes membership are the word “Pasadena” or “City
Pasadena,” “PDL,” “D,” a red rose (for the area and the color red signifying a Blood gang
affiliation), or the region’s area code, “626.” But with the Pasadena Denver Lanes, as
with other gangs, the threat of serious repercussions—“usually extremely violent
problems”—is a deterrence against false claims of gang membership. “[G]enerally
speaking, no, you don’t go around claiming that you’re a gang member if you’re not
really a member of that gang. Like I said, there’s dire consequences for that.”
       O’Neal testified that the motivation of street gangs in the Los Angeles basin
generally, as well as of Pasadena Denver Lanes, is to make money through criminal
enterprise, using violent robberies, assaults, and narcotics sales, with the monetary
proceeds going to the gang through “taxing.” They make money through control of their
area, using violence and intimidation—including through display of gang tattoos—to
maintain the fear and respect of people, and of other gangs. This benefits the gang: if
members of other gangs fear the local gang, the other gangs will respect that gang’s
territory or turf; and if people in the area fear the gang, their fear will deter them from
reporting the gang’s criminal activities. “So when a member is displaying gang tattoos, I
think the general law biding [sic] community is just going to avoid them because they
know they are gang members.”3
       Speaking about gangs in general, O’Neal told the jury that a gang member’s crime
benefits the gang’s reputation, and not just the reputation of the individual gang member.

       3
        O’Neal testified that although these “turf” rules normally govern gang activities,
the Pasadena Denver Lanes gang is now “basically without a turf” in the Antelope
Valley.

                                               5
It benefits the reputation of the individual perpetrator, because “any criminal activity
improves your hierarchy within the gang.” And it also benefits the gang. “So when they
claim the gang, it benefits the gang because the gang becomes more feared and there’s no
consequences for the crime that they commit.”
       O’Neal testified that gang members rarely act alone when committing crimes, for
two reasons: First, gangs are a “brotherhood,” giving “power in numbers.” While one
perpetrator might not be so intimidating, if you are victimized by multiple gang members,
“you are probably going to submit because you’re outnumbered.” Second, the gang is
also a brotherhood in the sense that its members are obligated to protect one another; a
member’s failure to defend his fellow gang members “at all costs,” will result in the
gang’s retaliation. If a fellow gang member is attacked in any way, “you better not just
stand back and watch, or run away, because you’re gonna be the victim of your own gang
violence.”
       O’Neal had never met either Turner or appellant, but opined for the jury that both
are Pasadena Denver Lanes members. He identified Turner as a Pasadena Denver Lanes
member by tattoos of “626” tattoo on his chest and “Pasadena” on his forearm; and from
his arrest for tagging “PDL” in the area. O’Neal based his opinion of appellant’s
Pasadena Denver Lanes gang membership on the large “Pasadena” tattooed across
appellant’s back and the “PDL” tattooed on his forearm; and on appellant’s affiliation
with Turner, a Pasadena Denver Lanes member, and “some of the words spoken during
the commission” of the robbery with which appellant was charged.
       O’Neal testified that displaying gang tattoos and claiming gang affiliation are very
intimidating, and that “blood” is an expression of gang membership, although it does not
identify a particular gang. He testified that committing a robbery not only obtains money
for the perpetrator, but also benefits the gang and its criminal activities. That is because
“typically” gangs receive a tax—a percentage of the proceeds—in order to fund its
criminal activities, and in the case of the Pasadena Denver Lanes, to pay an associated
prison gang to protect its members who have been sentenced to life in prison. And it is



                                              6
also vital to the gang to have another member nearby in order to assist and protect a
member who is involved in a crime.
       O’Neal admitted that he had no information that anyone was actually intimidated
by the evidence of gang affiliations in this case.4 And he admitted that the occurrence of
a robbery does not itself show gang involvement, because making money is the objective
of every robbery, whether gang related or not; and “It’s not uncommon for gang members
to just go out and spontaneously commit a robbery” because they need some money, or as
a crime of opportunity, with no direction or gang approval. O’Neal had no information
about the actual use of any of the robbery proceeds, and no knowledge that any of the
money was put to any gang-related use.
       O’Neal testified that a crime such as the charged robbery was done for the benefit
of Pasadena Denver Lanes. Responding to a hypothetical question, he stated his opinion
that a crime with the following characteristics would “absolutely benefit Pasadena
Denver Lanes”:
    Two Pasadena Denver Lanes gang members walk down the street together. One is
       shirtless, and visible tattoos say “626” and “Pasadena.”
    The shirtless one says to the other, “I’m sick of being broke.” He then enters a
       convenience store and pulls out a replica (fake) handgun, while the other remains
       outside the store.
    The one who entered the store says to the clerk, “Bloods. Give us everything you
       got,” then takes several hundred dollars from the cash register and turns to leave
       the store.
    After the robber turns away, the clerk jumps on the robber’s back. The second
       person then enters the store and pulls the clerk from the robber’s back. The two
       gang members then run from the store.


       4
         Ruh did not testify that he saw any tattoos on the robber, or that he heard any
reference to a gang or gangs. O’Neal conceded that Turner’s tattoos are “not very dark,”
and Turner is “more of a dark skinned individual”; his tattoos, although not “enormously
bright,” nevertheless “are obviously visible when the shirt’s off.”

                                             7
       O’Neal based this opinion on a number of factors, including the intimidation at the
time of the robbery evident from Turner’s shirtless display of his gang tattoos and claim
of gang association; from the fact that Pasadena Denver Lanes and other such gangs need
“tax” money for protection of their members in and out of prison; and from the fact that
gang-related crimes almost invariably are conducted by more than one member, in order
to provide a perpetrator with help if necessary. The facts on which he relied for his
opinion were “that these guys are gang members; they’re working in association with
each other, from the same gang and they committed this crime displaying their gang and
calling out their blood gang in order to effectively commit that crime. Whether it worked
or not, doesn’t matter. They’re gang members who committed a gang crime.”
       The prosecution agreed. It responded to the defense contention that the evidence
failed to identify any benefit to the gang from the robbery, arguing that no benefit to the
gang need be shown; the prosecution must show only that the crime was either “in
association with or for the benefit of a gang”; and that the evidence showed that appellant
“intended to help a gang member commit a crime.” The crime was done “in association
with” a gang, because both Turner and appellant are gang members; and appellant
intended to help Turner commit the robbery, because he entered the store with the
intention to help his fellow gang member escape Ruh’s grasp.
       As noted above, the jury found appellant guilty of the robbery and the burglary,
and found the gang-enhancement allegations true.

                                      DISCUSSION
       Counsel for appellant filed a brief raising no issues (People v. Wende (1979) 25
Cal.3d 436), after sending him the record on appeal and advising him of his right to file a
supplemental brief and to request that counsel be relieved. We have received no
communications from appellant.
       After undertaking our own independent review of the record (People v. Wende,
supra, 25 Cal.3d at pp. 441-442), and recent Supreme Court and Court of Appeal




                                             8
authority, we have concluded that the record discloses no arguably meritorious ground
for reversal of the judgment or modification of the sentence in this case.
       More specifically, we conclude that the evidence in the record is sufficient as a
matter of law to satisfy the requirements for enhanced punishments provided by section
186.22, subdivision (b), constituting substantial evidence that the crimes charged were
“committed for the benefit of, . . . or in association with a criminal street gang”; and that
the crimes were “committed with the specific intent to promote, further, or assist in any
criminal conduct by gang members.” (CALJIC No. 17.24.2; see CALCRIM No. 1401
(rev. Feb. 2014).)5 The jury was entitled to infer that the felonies committed by two gang
members were done for the benefit of the Pasadena Denver Lanes gang, based on the
evidence that robbery is a typical criminal activity for that gang, both in order to fund the
gang’s criminal activities and to enhance its reputation; that in perpetrating the felonies
one gang member made a shirtless display of intimidating gang tattoos, and verbally
identified his gang’s “blood” gang affiliation to the victim; and that a second gang
member joined in the felonies in order to assist his fellow gang member’s escape.
(People v. Albillar, supra, 51 Cal.4th at pp. 60, 63 [expert opinion that particular criminal
conduct benefited gang (by e.g., enhancing its reputation) supports inference that criminal
conduct was “committed for the benefit of … a[] criminal street gang” within the
meaning of section 186.22, subdivision (b)(1)], 68 [“if substantial evidence establishes
that the defendant intended to and did commit the charged felony with known members
of a gang, the jury may fairly infer that the defendant had the specific intent to promote,

       5
          In considering the sufficiency of the evidence to support a gang enhancement,
“we review the entire record in the light most favorable to the judgment to determine
whether it contains substantial evidence—that is, evidence that is reasonable, credible,
and of solid value—from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.] We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from the evidence. [Citation.]
If the circumstances reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances might also reasonably be
reconciled with a contrary finding. [Citation.] ‘A reviewing court neither reweighs
evidence nor reevaluates a witness’s credibility.’” (People v. Albillar (2010) 51 Cal.4th
47, 59-60.)

                                              9
further, or assist criminal conduct by those gang members”]; People v. Ramirez (2009)
172 Cal.App.4th 1018, 1038-1039 [where evidence showed felonies would have
financially supported gang, jury could conclude that defendant committed offenses “for
the benefit of, at the direction of, or in association with” a criminal street gang].)
       Because the record discloses no arguably meritorious ground for reversal of the
judgment or modification of the sentence in this case, we affirm the judgment of the
superior court.
                                       DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.



                                                   CHANEY, J.


We concur:



              ROTHSCHILD, P. J.



              JOHNSON, J.




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