	

Filed 7/30/14 P. v. Tamayo CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B243893

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA075405)
         v.

GUSTAVO J. TAMAYO et al.,

         Defendants and Appellants.


         APPEAL from a judgment of the Superior Court of Los Angeles County. Robert
J. Perry, Judge. Affirmed as modified.
         David L. Polsky, under appointment by the Court of Appeal, for Defendant and
Appellant Gustavo J. Tamayo.
         George L. Schraer, under appointment by the Court of Appeal, for Defendant and
Appellant Rickey R. Williams.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
David A Voet, Deputy Attorneys General, for Plaintiff and Respondent.
                                ___________________________________




	
	


       Appellants Gustavo J. Tamayo and Rickey R. Williams, both members of
Inglewood 13, a criminal street gang, conspired with two other Inglewood 13 members to
rob four Ross Dress For Less stores. They contend evidence that they conspired with one
another to commit the robberies was insufficient to show the crimes were gang related.
       We affirm.
                                    BACKGROUND
       A.      Crimes
       On Independence Day, July 4, 2010, Tamayo and Alex Salcedo, another
Inglewood 13 member, arrived at the back door of a Ross Dress for Less store (Ross) on
South Alvarado in Los Angeles. Tamayo brandished a gun at the store’s assistant
manager and forced her to take him to the store’s cash office. Tamayo and Salcedo took
between $40,000 and $50,000 from the safe, bound the assistant manager with plastic
ties, and left the store.
       Two months later, on Labor Day, September 6, 2010, at 4:43 p.m., Tamayo and an
unidentified associate entered a Ross store on South Figueroa in Los Angeles wearing
Domino’s Pizza uniforms and carrying pizza bags. They attempted to gain access to the
back of the store, ostensibly to set up pizzas for the employees, but when the manager
denied them access they left.
       About 15 minutes later, Williams and an unidentified older associate arrived at the
Ross store on Hollywood Boulevard in Los Angeles wearing Domino’s Pizza uniforms
and carrying pizza bags. They told assistant manager Monica Pena they were delivering
pizza ordered by the Ross corporate office to recognize the employees for working on the
holiday. The older man then dialed a number on his phone and handed it to Pena, stating
it was the Ross corporate office. After speaking to the person on the phone, Pena
instructed security guard Joel Maldonado to take Williams and the other man to a break
room at the back of the store near the cash office to set up the pizzas. When they reached
the back room, the older man brandished a handgun at Maldonado and instructed him to
open the cash office door, but he was unable to. He then struck Maldonado on the back
of his head with the gun and told him to call another employee to open the cash office.


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While this was happening, Pena went to the back for her lunch break and saw the
assailants holding Maldonado against a wall. There was blood on his neck and on the
cash-office’s keypad. The perpetrators forced Pena to open the cash office, bound
Maldonado with plastic ties and duct tape, instructed Pena to open the safe, and put
approximately $45,000 in the pizza bags. They then bound Pena and left.
       A few minutes later, Tamayo and Salcedo entered a Ross store on Jefferson in
Culver City dressed in Domino’s Pizza uniforms, wearing latex gloves and carrying pizza
bags. They spoke with supervisor Salvador Rivera, who took them to the back office.
Salcedo handed Rivera a phone on which he spoke with a man who said he was from the
Ross corporate office. The man authorized the pizza order and instructed Rivera to check
his email for payment instructions. Rivera told Tamayo and Salcedo to set up the pizza
in the break room while he went into the main office to use a computer. Tamayo and
Salcedo followed him in and closed the door, and Tamayo drew a handgun and pointed it
at Rivera. Tamayo told Rivera he was being robbed and said they wanted only money,
not to hurt him. Rivera informed Tamayo and Salcedo that the money was kept in a room
adjacent to the office, and they all began to walk to that room. Loss prevention employee
Vincent Gamez came to the back of the store to get a slice of pizza and was talking on his
phone outside the office when Tamayo, Salcedo, and Rivera exited. Tamayo pointed the
gun at Gamez, and he and Salcedo took both men into the cash room and demanded that
Rivera open the safe. After Rivera complied, Salcedo restrained him and Gamez with
plastic ties. Tamayo took $30,000 from the safe and put it in a pizza bag, and he and
Salcedo left.
       B.       Investigation	
       Culver City Police Detective Ryan Thompson investigated the robbery at the Ross
store in Culver City. He viewed fingerprint evidence and the security camera footage
from both that store and the store on Hollywood Boulevard, and based on this evidence
and information from undercover detectives, ultimately arrested Tamayo and Williams.
A search revealed a loaded firearm, several hundred dollars in cash, and two cell phones,
one of which contained contact numbers for Salcedo and Emmanuel Flores, a fourth


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Inglewood 13 gang member. Police later searched Tamayo’s residence and found a Mini
14 Ruger rifle and loaded magazine, a Domino’s Pizza shirt, and an insulated pizza bag.
Then they searched Flores’s residence and found manuals and official papers from Ross,
a “porcelain-style hand” molded into a gang sign, and various gang paraphernalia,
including photographs of Flores and others making gang signs.
       Tamayo, Williams, Salcedo and Flores were all charged in the same information.
(Salcedo and Flores are not part of this appeal.) Tamayo and Williams were charged with
multiple counts of robbery and kidnapping for robbery, attempted robbery, conspiracy to
commit robbery, and possession of an assault weapon, and it was alleged they committed
the crimes for gang purposes.
       C.     Expert Testimony
       Inglewood Police Officer Daniel Milchovich testified as an expert about the
Inglewood 13 gang, which has roughly 350 members and four or five major cliques. The
gang claims all of Inglewood as its “turf.” Its primary activities include vandalism,
robbery, carjacking, assault, including shootings, and murder. Respect is important to the
gang, and signs of disrespect would likely result in violence. For example, Milchovich
testified that if a person who was not a member were to display a gang tattoo or hand
sign, the result could be “an altercation, a fight, being jumped, being assaulted, being
stabbed. It could result in murder. It’s that serious.”
       Inglewood 13 gang members obtain status within the gang through various means,
including committing crimes and assisting other gang members in committing crimes.
Gang members commit crimes together to prove their dedication to the gang and to
promoting its status, and also to decrease the chance that one perpetrator will identify
another to police or testify against him at trial.
       In responding to a hypothetical question based on the circumstances of this case,
Milchovich opined that	such a crime would have been committed for the benefit of, at the
direction of, or in association with a criminal street gang. His opinion was based on the
way in which the gang members worked cooperatively to accomplish the robberies, the



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enhancement to the gang’s reputation for violence, and the gang’s ability to use the
proceeds from the robberies to fund its activities.
       D.       Verdict and Sentence
       Tamayo was convicted of five counts of robbery and one count each of attempted
robbery and conspiracy to commit robbery, and the jury found the crimes were
committed for gang purposes. He was sentenced to an aggregate prison term of 49 years
and eight months. Williams was convicted of four counts of robbery and one count each
of attempted robbery and conspiracy to commit robbery, and the jury found the crimes
were committed for gang purposes. He was sentenced to 45 years and four months. Both
appealed.
                                        DISCUSSION
       A.       Gang Enhancement
       Appellants contend no evidence supports the jury’s finding that their sentence was
subject to a gang enhancement because no evidence established the robberies were
committed in association with or to benefit a gang. The argument is without merit.
       In 1988, the Legislature found that “California is in a state of crisis which has been
caused by violent street gangs whose members threaten, terrorize, and commit a
multitude of crimes against the peaceful citizens of their neighborhoods.” (Pen. Code, §
186.21.)1 “[T]o seek the eradication of criminal activity by street gangs,” the Legislature
enacted the Street Terrorism Enforcement and Prevention Act (the STEP Act), section
186.20 et seq. (§ 186.21.)
       The STEP Act prescribes enhanced penalties for “any person who 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.” (§ 186.22, subd. (b)(1).) The act defines a “criminal street
gang” as “any ongoing organization, association, or group of three or more persons,
whether formal or informal, having as one of its primary activities the commission of one

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

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or more [enumerated] criminal acts . . . having a common name or common identifying
sign or symbol, and whose members individually or collectively engage in or have
engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).)
       The STEP Act “does not criminalize mere gang membership; rather, it imposes
increased criminal penalties only when the criminal conduct is felonious and committed
not only ‘for the benefit of, at the direction of, or in association with’ a group that meets
the specific statutory conditions of a ‘criminal street gang,’ but also with the ‘specific
intent to promote, further, or assist in any criminal conduct by gang members.” (People
v. Gardeley (1996) 14 Cal.4th 605, 623-624.) Not every crime committed by gang
members is intended to benefit the gang. But “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,
further, or assist criminal conduct by those gang members.” (People v. Albillar (2010) 51
Cal.4th 47, 68.) Gang enhancement elements must be established beyond a reasonable
doubt by substantial evidence. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
       “In considering a challenge to the sufficiency of the evidence to support an
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.’ [Citation.]” (People v.
Albillar, supra, 51 Cal.4th at pp. 59-60.) “To prove a gang allegation, an expert witness
may testify about criminal street gangs.” (People v. Romero (2006) 140 Cal.App.4th 15,
18.)



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       Substantial evidence demonstrates the Ross store robberies were committed in
association with Inglewood 13 and for its benefit.
       Appellants concede the evidence established they were Inglewood 13 members
who intentionally committed crimes with two other members. This fact alone established
they acted in association with Inglewood 13 with specific intent to assist in criminal
conduct by gang members, which is enough to justify the sentencing enhancement.
(People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [jury may “reasonably infer the
requisite association from the very fact that defendant committed the charged crimes in
association with fellow gang members”].)
       Substantial evidence also indicated appellants acted for the benefit of Inglewood
13. As Officer Milchovich explained, respect and status are important elements of gang
membership and can be earned by committing crimes with other gang members, as doing
so demonstrates courage and dedication to the gang and to promoting its status. Respect
and status earned by individual gang members strengthens the gang as a whole.
Committing crimes with fellow gang members also increases the chances of success,
because a participant may rely on the others’ cooperation and on the gang’s internal code
to ensure that no participant will cooperate with the police. Because appellants and
Salcedo and Flores were all Inglewood 13 members they could rely on one another in
committing the robberies. This evidence amply establishes that “defendants came
together as gang members” to commit the Ross store robberies. (People v. Albillar,
supra, 51 Cal.4th at p. 62 [evidence that rape was committed by three gang members in
concert supported gang enhancement].)
       Appellants acknowledge the evidence showed they themselves benefitted from the
crimes and associated with other gang members to commit them, but argue no benefit to
the gang resulted because no evidence showed the gang received any robbery proceeds or
its reputation was enhanced. They argue association with gang members is not
association with the gang and money obtained by gang members cannot be said to have
been obtained by the gang. Appellants thus purport to draw a distinction between gang
members and the gang itself. The distinction is illusory.


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        A gang is an association of individuals, not a tangible entity separate from the
individuals. The word “gang” is a synecdoche that identifies both the individuals and the
group they make up. Association with a gang for purposes of section 186.22 is therefore
satisfied by association with at least one gang member. Given that by statutory definition
a gang may comprise as few as three individuals (§ 186.22, subd. (f)), association with
three gang members necessarily supports a reasonable inference of association with the
gang.
        In a similar vein, money obtained by several gang members working in concert
may be reasonably inferred to redound to the benefit of the gang itself. We acknowledge
that “[n]ot every crime committed by gang members is related to a gang” (People v.
Albillar, supra, 51 Cal.4th at p. 60), and “it is conceivable that several gang members
could commit a crime together, yet be on a frolic and detour unrelated to the gang”
(People v. Morales, supra, 112 Cal.App.4th at p. 1198). But the “typical close case is
one in which one gang member, acting alone, commits a crime.” (Ibid.; see, e.g., In re
Daniel C. (2011) 195 Cal.App.4th 1350, 1361 [gang enhancement reversed where
perpetrator acted alone]; People v. Ochoa (2009) 179 Cal.App.4th 650 [same]; People v.
Ramon (2009) 175 Cal.App.4th 843 [gang enhancement reversed where two perpetrators
were gang members]; In re Frank S. (2006) 141 Cal.App.4th 1192 [one perpetrator]; see
also People v. Albarran (2007) 149 Cal.App.4th 214 [shooting committed by gang
member and unidentified associate did not support inference that shooting was gang
motivated].) Given that a gang may consist of three individuals, evidence showing that
four Inglewood 13 members received money from the Ross store robberies permitted the
jury reasonably to conclude Inglewood 13 itself benefitted from them.
        Appellants argue that to show a gang benefitted from money obtained by its
members the prosecution must show the money was spent on or earmarked for further
criminal activity. We disagree. Although by definition one or more of a gang’s primary
activities is crime (§ 186.22, subd. (f)), that need not be its only activity, and thus the
money need not be spent only to further crime to benefit the gang.



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       Furthermore, substantial evidence indicated Inglewood 13 received non-monetary
benefits from the Ross store robberies. As Officer Milchovich opined, robberies such as
these establish and demonstrate the perpetrators’ solidarity and enhance their reputations
and status with one another. Solidarity and reputation are associational phenomena, and
strengthening them in individuals strengthens the association.
       The gang enhancement was proper.
       B.     Conspiracy
       Williams contends the trial court erred in instructing the jury on a conspiracy
theory of liability for the robberies at which he was not present, arguing conspiracy is not
a valid theory of criminal liability. Williams acknowledges that well established
California law is to the contrary, but argues the law is wrong and invites us to disapprove
clear, longstanding Supreme Court precedent. We have no authority or inclination to do
so.
       “One who conspires with others to commit a felony is guilty as a principal.” (In re
Hardy (2007) 41 Cal.4th 977, 1025; People v. Kauffman (1907) 152 Cal. 331, 334 [“‘The
general rule is well settled that where several parties conspire or combine together to
commit any unlawful act, each is criminally responsible for the acts of his associates or
confederates committed in furtherance of any prosecution of the common design for
which they combine.’”)
       C.     Gang Enhancement for Attempted Robbery
       The jury found appellants guilty of attempted robbery of the Ross store on
Figueroa in Los Angeles and found true the street gang allegation as to that crime. The
trial court imposed a consecutive sentence of eight months for the attempted robbery plus
three years and four months for the gang enhancement. Appellants contend the
enhancement was excessive, and the Attorney General concedes the point.
       We agree. When a defendant is convicted of a violent felony as defined in section
667.5, subdivision (c), a gang enhancement is punishable by a term of 10 years. (§
186.22, subd. (b)(1)(C).) When a defendant is convicted of a serious felony as defined in
section 1192.7, subdivision (c), a gang enhancement is punishable by a term of five years.


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(§ 186.22, subd. (b)(1)(B).) Robbery is a violent felony (§ 667.5, subd. (c)(9)), but
attempted robbery is only a serious felony (§ 1192.7, subd. (c)(19) & (39)). The
appropriate enhancement was therefore one-third of five years, not 10, or one year and
eight months, not three years and four months. (See § 1170.1, subd. (a) [one-third
enhancement imposed for consecutive subordinate crimes].)
                                     DISPOSITION

       The convictions are affirmed. The trial court is directed to amend the abstract of
judgment to reflect a consecutive sentence enhancement of one year and eight months
instead of three years and four months on count 12 for both appellants, and forward a
copy thereof to the Department of Corrections and Rehabilitation.
       NOT TO BE PUBLISHED.



                                                        CHANEY, Acting P. J.


We concur:



              JOHNSON, J.



              WILEY, J.*




	
       *
          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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