Filed 1/27/16 P. v. Vizcarra 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                         G050644

         v.                                                            (Super. Ct. No. 11CF2055)

LORENZO VIZCARRA,                                                      OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed.
                    Susan S. Bauguess, 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, Charles C. Ragland,
Scott C. Taylor and Kristen Hernandez, Deputy Attorneys General, for Plaintiff and
Respondent.
              Appellant Lorenzo Vizcarra and his codefendants Luis Carmona and
Michelle Hernandez were convicted of robbery, conspiracy to commit robbery, and
recklessly evading the police. The jury also found that appellant inflicted great bodily
injury and that he and Hernandez acted to benefit a criminal street gang and were guilty
of street terrorism. On appeal, appellant contends there is insufficient evidence to
support certain aspects of the jury’s verdict, and the prosecution’s reliance on hearsay
evidence undermined his confrontation rights. Finding appellant’s contentions
unmeritorious, we affirm the judgment against him.
                                          FACTS
              Vizcarra’s codefendants also appealed, and we have decided both cases.
Because Vizcarra has raised some of the same arguments based – obviously – on the
same facts, we take the unusual measure of incorporating those cases (People v. Carmona
(May 7, 2014, G047808) [nonpub. opn.]; People v. Hernandez (Aug. 18, 2015, G050348)
[nonpub. opn.]) by reference and attaching them as Appendix “A” and Appendix “B.”
                                      DISCUSSION
                                  The Conspiracy Count
              Contending the robbery was a spur-of-the-moment idea that lacked any
planning or agreement, appellant contends there is insufficient evidence to support the
jury’s verdict on the conspiracy count. Carmona raised the same claim in his appeal. As
we explained in his case, the circumstances of the robbery indicate appellant and his
codefendants intentionally targeted the elderly victim and carried out a collective plan to
take his money by force or fear. (People v. Carmona, supra, G047808, at pp.
4-5.) Because there is substantial evidence to support this theory we reject appellant’s
challenge to the conspiracy count. (Ibid.)
                                 The Gang Enhancement
              Appellant also argues there is insufficient evidence to support the jury’s
finding the underlying crimes were gang related. The argument is premised on theory the

                                             2
prosecution relied on improper opinion testimony from gang expert John Radus in
attempting to prove the gang allegations. However, we believe that premise is incorrect
and there is substantial evidence to support the jury’s finding on the gang allegations.1
                  As detailed in Hernandez’s appeal, Radus testified extensively about the
gang dynamics at play in this case. (See People v. Hernandez, supra, G050348, at pp. 2-
3.) It was Radus’ opinion that appellant belonged to the Baker Street gang – which
Radus described as a traditional southern California Hispanic street gang – and that
appellant’s crimes benefited his gang by enhancing its reputation for violence and
creating the potential for financial gain. (Ibid.) Although it is well established that
expert testimony may be used to explain the characteristics of gangs and to prove a
particular crime is gang related (People v. Albillar (2010) 51 Cal.4th 47, 63; People v.
Gardeley (1996) 14 Cal.4th 605, 619-620 (Gardeley)), appellant contends Radus’
testimony was inadequate in several respects.
                  First, appellant argues Radus rendered an improper opinion as to his guilt.
In support of this claim, appellant cites In re Frank S. (2006) 141 Cal.App.4th 1192 and
People v. Vang (2011) 52 Cal.4th 1038, which prohibit expert testimony on the subjective
intent of the defendant. But Radus never testified about appellant’s state of mind.
Rather, he limited his opinions to the objective circumstances surrounding appellant’s
gang activity and how that activity may have benefited Baker Street in this case.
Therefore, the subject matter of Radus’ testimony was not improper.
                  Appellant also asserts Radus did not have sufficient knowledge to testify
about Baker Street’s primary activities or that appellant was actually a member of that
gang. But Radus testified he has worked as a gang suppression officer in Fullerton for

         1
                   Appellant targets both the sufficiency of the evidence at the end of the prosecution’s case-in-chief,
which he challenged via a motion for acquittal, and the sufficiency of the evidence to support the jury’s verdict. Our
standard of review is the same in both contexts: We do not determine the facts ourselves but simply examine the
record in the light most favorable to the judgment to ascertain whether it discloses substantial evidence from which a
reasonable trier of fact could find the defendant guilty. (People v. Hajek (2014) 58 Cal.4th 1144, 1182-1183.)




                                                           3
four years. And during that time, he personally investigated about 30 to 40 Baker Street
crimes. He has also spoken to Baker Street members about their activities and received
information from other officers about the gang, including numerous reports about Baker
Street’s criminal network and it various illegal activities. This was a sufficient
evidentiary foundation for Radus’ opinion regarding Baker Street’s primary activities.
              Radus also had sufficient knowledge and experience to support his opinion
that appellant was a member of Baker Street at the time of the alleged offenses. In
forming his opinion in that regard, Radus relied on the fact appellant has a large “F”
tattooed on his leg, which corresponds to Baker Street’s home city of Fullerton. Radus
also found it telling appellant has a moniker, he has admitted associating with Baker
Street in the past, and he has engaged in criminal activity with Baker Street members on
several prior occasions. Viewed individually, some of these factors might not be
particular revealing in terms of appellant’s gang status. However, considered as a whole,
they provide adequate foundational support for Radus’ opinion appellant was a Baker
Street member when this case arose.
              Continuing his attack on the gang expert, appellant contends Radus’
testimony was too general, insisting nothing Radus said specifically applied to Baker
Street. Appellant also maintains there was nothing about the particular circumstances of
the underlying offenses to support Radus’ opinion they were gang related. For the
reasons explained in Hernandez’s appeal, we find these arguments unavailing. (People v.
Hernandez, supra, G050348, at pp. 4-7.) There is simply no basis to disturb the jury’s
true finding on the gang enhancement allegations.
                        Alleged Sixth Amendment Violation
              Appellant contends his confrontation rights were infringed because in
forming his opinions about the case Radus relied on various forms of hearsay, including
police reports, field interview cards, prior conviction records, information from other



                                              4
officers, and statements from assorted gang members. We do not believe this practice
violated appellant’s rights or rendered his trial unfair.
                 In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United
States Supreme Court ruled the Confrontation Clause of the Sixth Amendment prohibits
the admission of testimonial hearsay without a prior opportunity for cross-examination.
However, Crawford also confirmed the long-standing rule that “[t]he [Confrontation]
Clause . . . does not bar the use of [out-of-court] statements for purposes other than
establishing the truth of the matter asserted.” (Id. at p. 59, fn. 9.) In this case, the
challenged hearsay was not admitted as proof the information contained therein was true.
Rather, it was admitted solely for the limited purpose of establishing the foundation for
Radus’ opinions. In fact, the trial court gave the jury specific instructions in that regard.
Radus’ reliance on this information did not violate the Sixth Amendment.
                 Indeed, our Supreme Court has upheld the very practice used here of
allowing a gang expert to rely on and reveal to the jury the contents of otherwise
inadmissible hearsay in stating his opinions about the case. (Gardeley, supra, 14 Cal.4th
at pp. 618-619.) While some courts have questioned Gardeley’s assumption that basis
evidence is not admitted for its truth, we are not at liberty to reexamine this issue. (See,
e.g., People v. Hill (2011) 191 Cal.App.4th 1104, 1131 [postulating that Gardeley’s
assumption in this regard may be incorrect, but holding the “judicial hierarchy” that
exists among state courts requires intermediate appellate courts to follow that decision].)
Applying Gardeley here, there was nothing improper about allowing gang expert Radus
to rely on hearsay evidence in forming his opinions about the case.2




        2
                  The California Supreme Court is currently considering whether Gardeley comports with Crawford
and current trends respecting the Sixth Amendment’s Confrontation Clause. (See People v. Sanchez (2014) 223
Cal.App.4th 1, review granted May 14, 2014, S216681 and People v. Archuleta (2014) 225 Cal.App.4th 527, review
granted June 11, 2014, S218640.)


                                                      5
                            The Street Terrorism Count
              Appellant’s final contention is essentially a rehash of his previous
arguments. He contends that given Radus’ limited knowledge of Baker Street, and
considering the way the alleged crimes played out, there is insufficient evidence that he
was an active participant in Baker Street or that he acted in concert with other gang
members, and therefore the street terrorism count must be reversed. (See Pen. Code,
§ 186.22, subd. (a).) However, as we have explained, Radus had adequate experience
and familiarity with gangs to support his opinion appellant was an active member of
Baker Street when the charged offenses took place. And it is clear appellant’s group
worked in association with each other in committing those crimes: “Carmona was the
wheelman, [appellant] was the muscle, and [Hernandez] provided encouragement and
direction.” (People v. Hernandez, supra, G050348, at p. 5.) Drawing all inferences in
favor of the judgment below, there is substantial evidence to support appellant’s
conviction for street terrorism.
                                   DISPOSITION
              The judgment is affirmed.




                                                 BEDSWORTH, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




                                             6
                                                  APPENDIX “A”
                                                                                      Filed May 7, 2014




                      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,                                         G047808

         v.                                                            (Super. Ct. No. 11CF2055)

LUIS ANTHONY CARMONA,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed.
                   Patrick Morgan Ford, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             7
              Appellant Luis Anthony Carmona was convicted of robbery, conspiracy
and recklessly evading the police. He contends there is insufficient evidence to support
his conspiracy conviction, and the trial erred in sentencing him to the upper term on the
robbery count. Finding these contentions unmeritorious, we affirm the judgment.
                                         FACTS
              Around three o’clock one morning, 67-year-old Martin Capune was riding
his bicycle on Balboa Boulevard in Newport Beach. Because that stretch of road does
not have a bike lane, Capune was riding as close to the curb as possible. Without
warning, his bike was bumped from behind by a champagne-colored sedan. The impact
did not cause Capune to fall off his bike, but he stopped to check for damage, noticing his
rear wheel was slightly bent. He also noticed the sedan had continued east on Balboa for
about half a block, made a U-turn and stopped across the street on the westbound
shoulder. After idling there for a few moments, the vehicle proceeded forward, made
another U-turn and pulled alongside Capune, who was still looking over his bike.
              There were three people in the sedan. Appellant was the driver,
codefendant Lorenzo Vizcarra was in the front passenger seat and codefendant Michelle
Hernandez was in the back. As soon as they pulled up to Capune, Vizcarra yelled
something to the effect of, “Hey, old man, give us five dollars.” Capune surmised the
people in the car were on some sort of scavenger hunt, and in an attempt to diffuse the
situation, reached for his wallet to give them five dollars. Before he was able to tender
the money, Hernandez said, “Get all of his money.” Then Vizcarra exited the car and
punched Capune in the side of the head, knocking him out. Besides Vizcarra, Capune did
not see anyone else get out of the car. However, in the moments before he was punched,
he heard not one, but two car doors slam “almost at the same time.”
              When Capune came to, appellant’s car was gone, and he was being
attended to by the police and paramedics. Although he was still somewhat groggy, he
was aware his wallet was missing. He was taken to the hospital, where he was treated for

                                             8
facial abrasions and a contusion on the side of his head that required six stitches. When
the police interviewed him there, he said he heard two male voices yelling at him prior to
being hit, and he indicated more than one man assaulted him.
              Ryan Croteau lived near the crime scene. After hearing an “impact noise,”
he got out of bed to see what was going on. As he was walking out to his balcony, he
heard yelling, like an exchange, and the sound of two car doors closing. Then he saw
appellant’s car leave abruptly and went downstairs to see if Capune was okay.
              Based on Croteau’s and Capune’s descriptions of appellant’s car, officers
were able to locate the vehicle in the area. When they attempted to pull him over, he
sped away and led officers on an extended high-speed chase. During the pursuit,
appellant and his cohorts tossed Capune’s wallet out the window. When their vehicle
was finally cornered in Fullerton, Vizcarra and Hernandez surrendered to police, but
appellant fled on foot and did not turn himself in until the following day.
              At trial, a gang expert testified that at the time of the robbery, Vizcarra and
Hernandez were active members of the Baker Street gang, and appellant was an associate
of that gang. The expert also opined the robbery benefited Baker Street.
              Appellant, Vizcarra and Hernandez were charged with second degree
robbery, conspiracy to commit robbery, and recklessly evading the police. It was also
alleged that they acted for the benefit of a criminal street gang and that appellant and
Vizcarra personally inflicted great bodily injury on Capune. In addition, appellant was
charged with aggravated assault for driving his car into Capune’s bicycle, and Vizcarra
and Hernandez were charged with street terrorism.
              As to appellant, the court dismissed the gang allegation after the
prosecution’s case-in-chief, and the jury found the great bodily injury allegation not true.
Although the jury deadlocked on the assault charge, and it was later dismissed, the jury
convicted appellant of the remaining charges. The jury convicted Vizcarra and
Hernandez as charged and found all the enhancement allegations against them to be true.

                                              9
                                              I
              Appellant argues there was insufficient evidence to support his conspiracy
conviction. We disagree.
              In assessing appellant’s claim, we review the whole record to determine
whether there is “substantial evidence to support the verdict – i.e., evidence that is
reasonable, credible, and of solid value – such that a reasonable trier of fact could find
[appellant] guilty beyond a reasonable doubt. [Citation.] In applying this test, we review
the evidence in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.]’” (People v. Manibusan (2013) 58 Cal.4th 40, 87.) Where the
circumstances reasonably justify the jury’s findings, it doesn’t matter whether they might
also reasonably be reconciled with a contrary finding; reversal is not required unless there
is no hypothesis under which there is substantial evidence to support the verdict. (Ibid.)
              A conspiracy is an agreement between two or more parties to commit a
crime. (People v. Johnson (2013) 57 Cal.4th 250, 257.) The parties must have both the
intent to agree and the intent to commit the target offense, and they must commit an act in
furtherance of the conspiracy. (Ibid.) Appellant admits there is sufficient evidence he
intended to rob Capune and acted in furtherance of that objective. Indeed, the evidence
indicates that, after pulling up to Capune, appellant joined Vizcarra in unburdening
Capune of his wallet. Although the jury rejected the allegation appellant personally
inflicted great bodily injury on Capune, there is substantial evidence he exited his car and
assisted Vizcarra during the robbery. Thus, the sole issue is whether appellant and his
confederates agreed to commit that offense.
              As our Supreme Court has explained, “‘Evidence is sufficient to prove a
conspiracy to commit a crime “if it supports an inference that the parties positively or
tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a
conspiracy may be inferred from the conduct, relationship, interests, and activities of the

                                              10
alleged conspirators before and during the alleged conspiracy.’”” (People v. Maciel
(2013) 57 Cal.4th 482, 515-516.)
              At trial, the prosecutor theorized appellant intentionally bumped Capune’s
bike as part of a scheme to get him off his bike and render him more vulnerable. The
prosecutor also surmised that, in turning around and waiting on the opposite side of the
street, appellant and his companions were sizing up Capune and waiting for the best time
to rob him. Appellant argued the bump was just an accident, he only turned around to see
if Capune was alright, and the robbery was a spontaneous event that lacked any sort of
planning or agreement.
              Although the jury deadlocked on the assault count, it is still somewhat
suspicious that appellant bumped Capune’s bicycle. After all, it was 3:00 a.m., traffic
was light, and Capune was hugging the curb at the time of contact. And if appellant was
really so concerned about Capune’s welfare following the bump, he would have stopped
immediately and checked on him. Instead, he continued on and pulled over on the other
side of the street. We don’t know what he and his companions talked about at that point,
but as soon they drove back to Capune’s location, they immediately asked for his money
and jumped him. At no point did they ask Capune if he was alright or offer him
assistance; rather, they did just the opposite. The jury could have believed appellant’s
version of the facts. Or, based on the totality of the circumstances, the jury could
reasonably infer he and the others returned with the collaborative intent to rob Capune.
They chose the latter, and there is no basis for rejecting that analysis. Therefore, we
reject appellant’s challenge to the conspiracy count.
                                             II
              The trial court sentenced appellant to the upper term of five years for the
robbery. It stayed his sentence for the conspiracy and imposed a concurrent eight-month
term on the evading count. Appellant contends the court abused its discretion in
imposing the upper five-year term, but that is clearly not the case.

                                             11
              The probation department prepared an extensive sentencing report for the
court. It reveals appellant was convicted of battery and placed on probation in 2007 for
attacking a man who was with appellant’s former girlfriend at a football game. His
probation was revoked and reinstated three separate times in connection with that case.
In 2009, appellant was convicted of second degree burglary for stealing beer from a store.
Again he was granted probation, and again he violated it on multiple occasions. In 2011,
following his arrest in the instant case, appellant violated a restraining order by sending
letters to his former girlfriend. And while he was in custody for these offenses, he was
written up for six minor, and three major, disciplinary violations.
              Given appellant’s criminal history, his role in the robbery, and the violent
nature of that crime, the probation officer felt it would be “a travesty of justice” to grant
him probation. She recommended instead that he be sentenced to “maximum
incarceration.” The prosecutor also advocated in favor of the maximum sentence.
              At the sentencing hearing, most of the debate centered on whether appellant
should be given another chance on probation. In arguing in favor of that option, defense
counsel represented that if appellant hadn’t been charged with the gang allegations,
which were eventually dismissed, he would have been willing to plead guilty early on in
the case. Defense counsel also emphasized the fact the assault charge was ultimately
dismissed and appellant voluntarily surrendered to the police the day after the robbery.
Characterizing appellant’s involvement in the crime as a lapse of judgment, defense
counsel claimed appellant was trying to turn his life around and even hoped to join the
military – an opportunity that would likely be foreclosed if he were sent to prison.
              It was good lawyering, but the court was not persuaded. Describing the
robbery as an “ugly crime,” the court found it involved serious and violent behavior, and
appellant played an active role in the crime. The court also found that, over the years,
appellant has demonstrated a “complete and total disrespect for authority,” as evidenced
by his actions in fleeing the police after the robbery and flouting the terms of his

                                              12
probation in his previous cases. In addition, the court found appellant has a “history of
repetitive criminal conduct which [has] appeared to escalate” over the years.
                  Defense counsel tried mightily to discount these factors and implored the
court to give appellant a “second chance,” but the court noted this was actually
appellant’s “fourth or fifth” chance. And while the court surmised appellant was
“probably a fairly nice guy,”3 it was concerned about the fact he continues to associate
with gang members and engage in criminal activity. For all these reasons, the court
denied appellant’s request for probation.
                  The court then proceeded to sentence appellant to the upper term of five
years on the robbery count. In explaining its rationale for that term, the court said it was
incorporating the reasons it relied on in denying appellant’s request for probation. The
court also believed the robbery involved planning and sophistication and reflected a high
degree of viciousness and callousness. The court felt that appellant’s conduct represented
a serious danger to society and that there were no mitigating circumstances present.
                  When, as here, the criminal statute under which the defendant is convicted
specifies three possible terms, the decision to impose the upper, middle or lower term
rests within the sound discretion of the trial court. (Pen. Code, § 1170, subd. (b); Cal.
Rules of Court, rule 4.420(a).)4 In making this selection, “the sentencing judge may
consider circumstances in aggravation or mitigation, and any other factor reasonably
related to the sentencing decision.” (Rule 4.420(b).) It is up to the judge to decide how
much weight should be given to the pertinent circumstances. (People v. Brown (1988) 46
Cal.3d 432, 470.) He or she may minimize or disregard circumstances in mitigation
(People v. Lamb (1988) 206 Cal.App.3d 397, 401) and impose the upper term based on
but a single factor in aggravation (People v. Osband (1996) 13 Cal.4th 622, 730).


         3
                   A tribute to defense counsel, considering his client was charged with attacking a 67-year-old man.
         4
                  The punishment for second degree robbery is two, three or five years in prison. (Pen. Code, § 213,
subd. (A)(2).) All further rule references are to the California Rules of Court.


                                                        13
              On appeal, “‘[t]he burden is on the party attacking the sentence to clearly
show that the sentencing decision was irrational or arbitrary. [Absent] such a showing,
the trial court is presumed to have acted to achieve legitimate sentencing objectives, and
its discretionary determination to impose a particular sentence will not be set aside on
review.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed merely because
reasonable people might disagree. “An appellate tribunal is neither authorized nor
warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’
[Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
              As a preliminary matter, the Attorney General claims appellant forfeited his
right to challenge his sentence by failing to object when the court gave him the upper
term on the robbery count. However, in imposing that term, the court made clear it was
essentially relying on the same aggravating factors it cited in denying appellant’s request
for probation. Given that defense counsel vigorously challenged the applicability of
those factors at that time, and the court found his arguments unavailing then, there was no
need for counsel to reiterate them when appellant’s final sentence was announced. By
that time, the battle was over and appellant was excused from further contesting his
sentence. (See People v. McKinnon (2011) 52 Cal.4th 610, 654 [under futility exception
to forfeiture rule, a party is not required to raise objections or points that have already
been rejected by the trial court].)
              On the merits, appellant argues he was not actively involved in the robbery,
nor was it planned, sophisticated or particularly egregious. (See rules 4.421(a)(1), (8).)
In so arguing, appellant reiterates his claim the robbery was a spontaneous event that was
largely carried out by his cohorts. However, for the reasons explained in the preceding
section, we disagree with this characterization of the crime. Not only could the jury
reasonably find appellant conspired to rob Capune, the trial court, bound only by the
preponderance-of-the-evidence standard (People v. Scott (1994) 9 Cal.4th 331, 349-350),
could reasonably conclude appellant played a major role in the robbery by bumping into

                                              14
Capune’s bicycle, assisting in the violent taking, and driving the getaway car. Although
appellant’s group didn’t get much money from Capune, they waylaid a man more than
twice their age with such force he was rendered unconscious and required six stitches to
the head. We agree with the trial court that the evidence shows appellant helped carry
out an “ugly crime” that reflected a high degree of viciousness and callousness.
              Appellant also faults the court for considering his criminal history as an
aggravating factor. He argues his prior offenses really weren’t that significant because
they were all relatively minor misdemeanors. However, the problem is, that by
committing felonies in the present case, appellant has, as the trial court put it,
“graduated” to more serious criminal behavior. He also continued to break the law and
violate prison rules after he was arrested in this case. The continuing and escalating
nature of his offenses is a legitimate aggravating circumstance, as is the fact he was on
probation when he committed the present offenses and has performed poorly on
probation in the past. (Rules 4.421(b)(2), (4) & (5).)
              These factors also played into the court’s finding appellant has
demonstrated a complete lack of respect for authority. Appellant contends the court
based this finding solely on the fact he fled from police following the robbery, and since
he was separately punished for doing that, it was improper for the court to consider this
fact in sentencing. (See rule 4.420(d) [a “fact that is an element of the crime upon which
punishment is being imposed may not be used to impose a greater term.”].) However, in
finding appellant lacked respect for the law, the court considered not only his flight from
the police, but also his extensive history of violating the law and the terms of his
probation. The court was also rightly concerned with appellant’s continued association
with gang members (Vizcarra and Hernandez). Although appellant was not a gang
member himself, it was reasonable for the trial court to conclude that his prior
punishments have been ineffective in terms of deterring him from criminal behavior and
that a more serious punishment was warranted in this case.

                                              15
              Lastly, appellant contends the trial court “overlooked the primary
mitigating factor that [he] was remorseful and turned himself in.” Appellant did turn
himself in, but not before leading the police on an extremely dangerous high-speed chase
from Newport Beach to Fullerton. And while he has admitted some culpability, the
probation officer reported, “In discussing the offense, [appellant] appears to have
minimized his level of involvement. He rationalized his reasons for fleeing the scene and
stated he ran from police because he was scared. His post-offense actions appear to be
indicative of a criminally sophisticated and violent offender regardless of gang ties.”
              All told, appellant’s record and the circumstances surrounding the robbery
lead us to conclude he was fairly sentenced. While appellant assails the trial court’s
decision to impose the upper term as an abuse of discretion, the record shows the court
carefully considered appellant’s case, gave his attorney ample time for argument, and
based its decision on legitimate sentencing factors that enjoy substantial evidentiary
support. We discern no reason for disturbing appellant’s sentence.
                                      DISPOSITION
              The judgment is affirmed.



                                                        BEDSWORTH, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




                                             16
                                                  APPENDIX “B”
                                                                                      Filed August 18, 2015




                      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,                                         G050348

         v.                                                            (Super. Ct. No. 11CF2055)

MICHELLE ELIZABETH HERNANDEZ,                                          OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed.
                   Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, William M. Wood and Brendon W. Marshall, Deputy Attorneys General, for
Plaintiff and Respondent.




                                                            17
                Appellant Michelle Elizabeth Hernandez was convicted of robbery,
conspiracy, recklessly evading the police and street terrorism. While she does not
challenge her underlying convictions, she contends there is insufficient evidence to
support the jury’s additional finding that her crimes were gang related. Because the
record contains substantial evidence to support the jury’s finding in that regard, we affirm
the judgment.
                                            FACTS
                A detailed factual account of appellant’s crimes is set forth in People v.
Carmona (May 7, 2014, G047808) [nonpub. opn.], which we incorporate by reference.
That opinion reflects appellant and codefendants Luis Carmona and Lorenzo Vizcarra
were driving around together in Newport Beach early one morning when they bumped
into the back tire of 67-year-old Martin Capune, who was bicycling on the side of the
road. While Capune was inspecting the damage to his bike, Carmona, the driver, and
Vizcarra, the front passenger, exited their car and demanded five dollars from him.
While Capune was reaching for his wallet, appellant yelled out from the car, “Get all his
money.” After that, Vizcarra hit Capune in the side of the head, knocking him out. Then
he, Carmona and appellant made off with Capune’s wallet.
                The police were quick to respond to the scene. However, when they tried
to pull over appellant’s car, Carmona sped away and led officers on an extended high-
speed chase. During the pursuit, someone tossed Capune’s wallet out the window of
appellant’s car. When their vehicle was finally cornered in Fullerton, appellant and
Vizcarra surrendered to police, but Carmona fled on foot and did not turn himself in until
the following day. The police found $40 in appellant’s car, which was the amount
missing from Capune’s wallet when it was returned to him.
                At trial, the prosecution’s gang expert John Radus testified that at the time
of the robbery, appellant and Vizcarra were active members of the Baker Street Gang,
and Carmona was an associate of that gang. Radus stated Baker Street is based in

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Fullerton and has the attributes of a typical Southern California Hispanic street gang.
With about 50 documented members, Baker Street’s primary activities include robbery
and assault with a deadly weapon.
              Radus testified Southern California Hispanic gang members covet respect,
which is earned by committing crimes and instilling fear in the community. And when
they do commit crimes, they often work together so they can be more effective and back
each other up if anything goes wrong. Radus also stated that loyalty and trust are
extremely important to gang members. In fact, failing to support or “ratting out” other
members will likely be met with physical violence or other adverse consequences.
              Based on a hypothetical question steeped in the facts of the case, Radus
opined that if a group of gang members were to forcibly take a person’s wallet and flee
from the police, it would benefit their gang by enhancing its reputation for indiscriminate
violence and lawlessness. It would also enhance the individual reputations of the
members who carried out the crimes and embolden other members of their gang to
commit crimes. In addition, stealing a person’s wallet would create the potential for
financial benefit to the gang, even if the wallet was eventually discarded. As Radus
explained, money derived from gang member’s crimes can be used to purchase drugs,
weapons or other items for the gang, and it can also be used to buy gas so they can drive
around and commit crimes outside their claimed territory.
              During closing argument, defense counsel argued appellant’s crimes had
nothing to do with her gang. However, in addition to finding appellant guilty of robbery,
conspiracy, recklessly evading the police and street terrorism, the jury also found true an
enhancement allegation that, in committing the first three of those crimes, appellant acted
for the benefit of, at the direction of, or in association with a criminal street gang. The
trial court sentenced her to a term of 19 years and 8 months in prison, which was
encompassed within a separate 20-year maximum sentence appellant plea bargained for
in two other unrelated cases.

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                                       DISCUSSION
              Appellant contends there is insufficient evidence to support the jury’s true
finding on the gang enhancement. We disagree.
              The standard of review for assessing the sufficiency of the evidence to
support a criminal conviction is “highly deferential.” (People v. Lochtefeld (2000) 77
Cal.App.4th 533, 538.) Our task is to “review the entire record in the light most
favorable to the judgment to determine whether it contains substantial evidence . . . from
which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.) In so doing, we do not
reweigh the evidence or reevaluate the credibility of the witnesses who testified at trial;
rather, “[w]e presume in support of the judgment the existence of every fact the trier of
fact reasonably could infer 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.]” ( Ibid.) “The conviction shall stand ‘unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support [it].”’ [Citation.]”
(People v. Cravens (2012) 53 Cal.4th 500, 508.) The same standard applies when, as
here, we are reviewing the sufficiency of the evidence to support a jury’s true finding on
an enhancement allegation. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
              Penal Code section 186.22, subdivision (b)(1) authorizes a sentence
enhancement when the defendant “is 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[.]” Although the
enhancement only applies when the underlying crime is “gang related” (People v.
Gardeley (1996) 14 Cal.4th 605, 622), and “[n]ot every crime committed by gang
members is related to a gang” (People v. Albillar, supra, 51 Cal.4th at p. 60), we believe



                                              20
there is substantial evidence to support the jury’s finding appellant’s crimes in this case
were gang related.
              In arguing otherwise, appellant claims there is nothing about the facts that
suggest any sort of gang connection. For instance, no one in her group flashed any gang
signs or yelled their gang’s name before the attack, the victim Capune was not a member
of any gang or targeted out of retaliation, and the crime did not take place in Baker
Street’s territory. However, as often occurs in gang crimes, appellant’s group worked
together, i.e., “in association with” one another in achieving their objective: Carmona
was the wheelman, Vizcarra was the muscle, and appellant provided encouragement and
direction. And their common gang membership ensured they could trust each other both
during and after committing the subject crimes. (People v. Albillar, supra, 51 Cal.4th at
pp. 61-62.)
              Moreover, the fact they committed a violent crime and brazenly fled from
the police increased the likelihood their individual reputations, as well as the reputation
of their gang, would be enhanced. Even though there was no direct evidence anyone in
appellant’s gang or the public at large knew how the robbery went down, the lengthy
police chase ended on Iris Court in Fullerton, which is in the heart of the territory claimed
by Baker Street. Based on this, the jury could reasonably infer that word of appellant’s
exploits would eventually get around on the street.
              Appellant’s crimes also carried the potential for financial gain, which can
be a boost to gangs. Indeed, gang expert Radus clearly explained how gangs benefit
when their members bring in money from criminal activity. While it is certainly possible
appellant and her companions were not thinking about Baker Street’s bottom line when
they took Capune’s wallet, the jury was entitled to conclude otherwise based on Radus’
testimony. (People v. Albillar, supra, 51 Cal.4th at p. 63.)




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               Appellant assails Radus’ testimony as being too general, claiming “nothing
in his knowledge base was predicated on anything [Baker Street] members were known
to do.” That is simply not true. During his time in the Fullerton Police Department’s
gang unit, Radus personally investigated many of Baker Street’s crimes and spoke to
many of its members. He also knew the gang’s primary activities include robbery, which
was the principal crime in this case. Although much of Radus’ testimony about gang
culture was based on his understanding of Hispanic gangs from Southern California in
general, he made it clear Baker Street is a “typical” gang of that ilk. Therefore, the jury
could fairly deduce Radus’ testimony logically pertained to Baker Street and the crimes
in question.
               As noted above, those crimes were accomplished by a group of gang
members/associates acting in concert. They were not carried out by a lone gang member,
which is the hallmark of cases in which the gang connection has been found to be
lacking. (See, e.g., People v. Ochoa (2009) 179 Cal.App.4th 650, 653; In re Frank S.
(2006) 141 Cal.App.4th 1192, 1195.) Appellant correctly notes that evidence of a gang
connection was also found lacking in People v. Albarran (2007) 149 Cal.App.4th 214,
even though the defendant, a gang member, was accompanied by another person when he
committed the subject offenses. However, because the identity of the defendant’s
companion was never determined, it was not reasonable to infer the defendant was
working in cahoots with other gang members in that case. (Id. at p. 227, fn. 9.) The
situation in the present case is quite different. Because appellant was in the company of
two known gang members/associates when she committed the instant offenses, Albarran
is distinguishable.
               Appellant’s reliance on In re Daniel C. (2011) 195 Cal.App.4th 1350 is
also misplaced. In fact, in that case the court found there was substantial evidence the
defendant’s robbery was committed in association with a criminal street gang, even
though he committed the robbery by himself. (Id. at pp. 1353-1354, 1358-1359.) For

                                             22
purposes of the association requirement, it was sufficient that the defendant’s gang pals
had accompanied him to the location where the robbery occurred and waited for him
nearby until the crime was over. (Ibid.)
              Here, appellant was not only in the company of two other gang
members/associates before and after the robbery, the evidence shows they all worked
together in carrying out the crime. She was giving direction to the other gang members
(“get all his money.”) Although the evidence to support the gang enhancement is not
overwhelming, there is substantial evidence from which the jury could conclude appellant
acted in association with and for the benefit of a criminal street gang in this case. We are
powerless to disturb the jury’s verdict on these facts.
                                      DISPOSITION
              The judgment is affirmed.




                                                  BEDSWORTH, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




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