Filed 10/8/13 P. v. Viramontes CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                2d Crim. No. B245414
                                                                        (Super. Ct. No. KA096547-01)
     Plaintiff and Respondent,                                              (Los Angeles County)

v.

FRANK A. VIRAMONTES,

     Defendant and Appellant.



                   Frank A. Viramontes appeals a judgment following conviction of robbery.
(Pen. Code, § 211.)1 The jury found that he committed the crime to benefit a criminal
street gang. (§ 186.22, subd. (b)(1).) Viramontes admitted he suffered a prior prison
term. (§ 667.5, subd. (b).) The trial court sentenced Viramontes to 13 years in state
prison, consisting of three years for the robbery and 10 years for the gang enhancement.
(§§ 211, 186.22, subd. (b)(1)(C).) The court stayed a one-year prior prison term
enhancement. We remand to the trial court to correct the sentence by either imposing or
striking the one-year prior prison term enhancement, and otherwise affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
                   Viramontes, Jacob Verdona, Albert Silvas, and Lydia Padilla are members
of the Ford Maravilla street gang. Verdona kept a gun for Viramontes, according to the


1
    All statutory references are to the Penal Code unless otherwise stated.
testimony of Verdona's girlfriend, Nasreen Garcia. Verdona kept it hidden under his
grandmother's house.
              Verdona and Garcia discovered the gun was missing. They suspected that
Cheryl Mack and her boyfriend had taken it. Garcia told Viramontes that Mack had
taken the gun. Viramontes told her he wanted it back and he asked Garcia to take him to
Mack's house. Garcia drove, with Verdona in her car. Viramontes followed in another
car with Silvas and Padilla.
              Silvas and Padilla forced their way into Mack's house, tied up Mack's
mother, and took a number of valuable objects. Viramontes waited outside and watched
for police. After the robbery, Garcia drove Viramontes away. She pled no contest to
being an accessory to the robbery after the fact.
              In a recorded interview, Viramontes admitted that he stood by the door and
watched for police during the robbery and that he carried a jewelry box to the car. He
also admitted he was a member of Ford Maravilla.
              Los Angeles Police Detective Jesse Lucero testified as a gang expert. He
offered the opinion that the robbery was committed in association with, for the benefit of,
and at the direction of the Ford Maravilla criminal street gang. He testified that Ford
Maravilla's primary activities are vandalism, robbery, attempted robbery, extortion,
carjacking, assault, vehicle theft, narcotic sales and transportation, attempted murder, and
murder. He testified to predicate felonies by gang members, about which the prosecution
presented documentary evidence. He testified that Viramontes, Silvas, and Padilla were
members of Ford Maravilla. Lucero had been assigned to East Los Angeles gangs,
including Ford Maravilla, since 1990, and had been assigned primarily to Ford Maravilla
for the past two years. The investigating officer, Detective Scott Strong, also testified
that he knew Silvas to be a member of Ford Maravilla.




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                                          DISCUSSION
                   Sufficiency of Evidence to Support Gang Enhancement
                Viramontes contends that there is insufficient evidence that he committed
the robbery to benefit a criminal street gang. (§§ 211, 186.22, subd. (b)(1).) We apply
the usual standard of review in assessing whether the gang enhancement is supported by
sufficient evidence. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.) We view the
evidence and draw all reasonable inferences therefrom in favor of the finding. (Ibid.)
Although the evidence might support a contrary finding, we do not substitute our views
for those of the trier of fact. (Id. at p. 60.)
                Viramontes asserts there was insufficient evidence that a primary activity of
the Ford Maravilla gang was commission of enumerated offenses because Detective
Lucero did not identify the source of his knowledge that its members had committed the
crimes he described. (Evid. Code, §§ 800, 801; In re Daniel C. (2011) 195 Cal.App.4th
1350, 1363-1364 [opinion evidence is insubstantial if not supported by facts in the
record].) Lucero testified that he had more than 20 years of experience with East Los
Angeles gangs, had been assigned to the Ford Maravilla gang since 2010, and had
personally spoken with "50 plus" of that gang's approximately 90 members. His
testimony was supported by sufficient foundation, unlike the expert in In re Alexander L.
(2007) 149 Cal.App.4th 605, 611-612, who described no personal contacts with gang
members or any other basis for his opinion concerning a gang's primary activities.
Lucero's testimony provided sufficient evidence that Ford Maravilla's primary activity is
the commission of enumerated offenses. (People v. Gardeley (1996) 14 Cal.4th 605, 620
[an opinion about primary activities was properly based on conversations with gang
members, investigations of crimes committed by gang members, and information from
colleagues].)
                Viramontes also asserts that the crime was not gang related. He contends
that he sought only to recover his personal property and that there was no evidence that
his accomplices were gang members or that the gang had any claim to the gun. (People


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v. Livingston (2012) 53 Cal.4th 1145, 1170 [gang enhancement only applies if the crime
is gang related]; People v. Rodriguez (2012) 55 Cal.4th 1125, 1138 [not every crime
committed by gang members is related to a gang].) But Viramontes committed the
robbery in association with Verdona, Silvas, and Padilla, and sufficient evidence supports
an inference that they relied on their common gang membership to commit the crime.
(People v. Albillar, supra, 51 Cal.4th 47, 60.) Garcia testified that Silvas and Verdona
were members of the Ford Maravilla gang. Lucero testified that Silvas, Verdona, and
Padilla were members. Garcia testified that Verdona stored the gun for Viramontes and
that gang members went as a group to recover it or to take property that would
compensate for its loss. According to Mack's mother, the female robber (Padilla) told her
that Cheryl Mack stole something "from us." Detective Lucero testified that stealing a
gun from a gang member would be viewed by gang members as disrespect toward the
gang and that failure to retaliate would cause Viramontes to lose status or to be
disciplined by the gang. He also testified that a gang member such as Viramontes would
only select other gang members to participate in a mission to retrieve a gun because he
could rely upon them.
              Viramontes contends that the testimony that Silva and Padilla were gang
members was not competent because Garcia and Lucero did not identify the source of
their knowledge. (Evid. Code, §§ 800, 801.) But Viramontes did not object at trial that
the testimony lacked foundation. (People v. Panah (2005) 35 Cal.4th 395, 476
[incompetent evidence, received without objection at trial, takes on attributes of
competent proof when considered upon the question of sufficiency of the evidence to
support a finding].) Sufficient evidence supports the jury's findings that Viramontes
committed the robbery "for the benefit of, at the direction of, or in association with" the
Ford Maravilla gang. (§ 186.22, subd. (b)(1).)
              The jury's finding that Viramontes committed the robbery "with the specific
intent to promote, further, or assist in any criminal conduct by gang members" (§ 186.22,
subd. (b)(1)) is supported by evidence that he selected known gang members to


                                              4
accompany him and that he stood watch for them as they entered the house and robbed
Mack's mother. (People v. Albillar, supra, 51 Cal.4th 47, 67 ["the statute requires only
the specific intent to promote, further, or assist criminal conduct by gang members"].)
Detective Lucero's testimony supported a finding that Viramontes and his fellow gang
members committed the crime to restore the gang's respect after Cheryl Mack
disrespected the gang by stealing a member's gun.
                                Prior Prison Enhancement
              The trial court erroneously stayed the one-year enhancement for a prior
prison term. (§ 667.5, subd. (b).) The court shall strike the punishment, but not the
enhancement. (Cal. Rules of Court, rule 4.428.) Viramontes admitted he served a prior
prison term within the meaning of section 667.5, subdivision (b). The enhancement is
mandatory unless stricken. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) The
error is jurisdictional. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1562.)
                                      DISPOSITION
              The trial court is directed to correct the sentence, the court's minutes, and
the abstract of judgment to either impose or strike the one-year prior prison term
enhancement. (§ 667.5, subd. (b).) On resentencing, the trial court shall forward the
corrected abstract to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
              NOT TO BE PUBLISHED.



                                           GILBERT, P.J.
We concur:



              YEGAN, J.



              PERREN, J.

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                             Juan Carlos Dominguez, Judge

                         Superior Court County of Los Angeles

                           ______________________________




              James R. Bostwick, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
              Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Scott A. Taryle, Supervising Deputy Attorneys General, for Plaintiff and
Respondent.




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