People v. Castaneda, F048023 (Cal. App. 4/30/2008)

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THE PEOPLE, Plaintiff and Respondent, v. ISAAC SCOTT CASTANEDA, Defendant and Appellant

F048023

Court of Appeals of California, Fifth Appellate District

April 30, 2008

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Kings County, No. 04CM4059, James LaPorte, Commissioner.

Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Louis M. Vasquez, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HILL, J.

INTRODUCTION

This case is before us on remand from the United States Supreme Court for further consideration in light of that court's decision in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham). The parties have provided supplemental briefing addressing Cunningham and the California Supreme Court's recent interpretation of Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II). After further consideration in light of both Cunningham and Black II, we affirm the judgment and sentence. Except for our discussion of defendant's sentence, the opinion we now file is substantially the same as our original opinion filed on September 27, 2006.

A jury found defendant Isaac Castaneda guilty of one count of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a); count 1) and one count of recklessly evading a peace officer (Veh. Code, § 2800.2, subd. (a); count 2). The jury also found true criminal street gang and arming enhancements associated with each count. (Pen. Code,¹ § 186.22, subd. (b)(1); § 12022, subd. (a)(1)). Defendant received a total prison term of 11 years: the upper term of three years for count 2, plus four years for the gang enhancement and one year for the arming enhancement, a consecutive term of eight months for count 1, plus one year for the gang enhancement, and four months for the arming enhancement, and a stipulated, consecutive term of one year for defendant's guilty plea to assault with a deadly weapon in a separate case.

On appeal, defendant contends: (1) the court's imposition of consecutive sentences on the unlawful taking/driving and reckless evasion counts violated section 654; (2) the evidence was insufficient to support the gang enhancements; (3) the evidence was insufficient to support the arming enhancements; (4) the court committed an impermissible dual use of facts when it used the circumstance of a principal being armed as a reason for imposing the upper term on the reckless evasion count; and (5) the court's imposition of the upper term violated defendant's constitutional rights under Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856]. We affirm.

FACTS

A resident of Selma awoke to discover her red, Chevrolet S10 pickup missing from the front yard where her son had parked it the night before. Two days later, a police officer spotted the pickup driving in Hanford around 10:20 p.m. After learning the pickup had been reported stolen, the officer tried to make a traffic stop but his overhead lights malfunctioned. Two additional officers, in separate marked patrol cars, arrived to assist him. The second officer replaced the first as the lead unit, and activated his overhead lights and siren. The pickup immediately accelerated, and a high-speed pursuit ensued, during which the pickup drove at speeds between 80 and 100 miles per hour and ran a red light and multiple stop signs. The posted speed limit in the residential area near the beginning of the pursuit was 25 miles per hour, and the posted speed limit for the remainder of the pursuit was 40 miles per hour.

After the pursuit began, the pickup turned the wrong way onto Tenth Avenue and sped northbound in the southbound lane, forcing a number of cars to take defensive action, such as pulling over to the side or stopping in the middle of the road, to avoid being hit. The pickup continued to speed northbound in the southbound lane even when the concrete divider separating the two lanes ended. Tenth Avenue came to a dead-end at Highway 43, where there was a stop sign. The pickup hit the brakes and attempted to make the tight left turn onto Highway 43. Instead, the pickup crashed through the wooden barrier erected to prevent drivers from driving on the old Highway 43. The pickup got back on Highway 43 and continued northbound for a couple seconds, before turning westbound into a dirt driveway or access road between two residences. The pickup finally stopped after colliding with a chainlink fence.

The driver's side door of the pickup opened, and three people quickly exited and began to run in separate directions. Defendant was the first person to exit the pickup, and therefore identified as the driver by the police officers. Defendant ran approximately 100 yards before he was tackled by the officer who had been chasing him. While defendant was running, the other officers had a spotlight on defendant and were giving him multiple commands to stop and get down.

The second person who got out of the truck was later identified as Ignacio Sanchez. Sanchez was wearing a red sweatshirt. The officer chasing him observed that Sanchez was carrying a black object in his right hand, which the officer later learned was just a shoe. The officer fired two bursts with his submachine gun after Sanchez refused to comply with repeated orders to stop and show his hands. After the second burst, Sanchez got on the ground and put his hands up. John Aguilar, the last person out of the pickup, surrendered after being chased about 15 to 20 yards by the third officer.

Inside the pickup, the police found a red bandanna, wrapped loosely around and hanging down from the gear shaft. A loaded .380 shotgun was also found. It was visibly resting in the pocket of the passenger-side door, with the barrel pointing upward. In addition, a red-handled knife was found on the ground near the pickup.

The owner of the pickup testified that when the vehicle was returned to her, it showed no sign of forced entry or damage to the steering column or where the key goes into the ignition. She observed that the pickup had been "stripped" of a number of items, including the stereo and speakers and the side panels of the doors. There were also items that had not been in the pickup previously, including a Lemoore yearbook and some writing or "scribbling" in the back where the speakers used to be located.

The pickup owner's son testified that he kept a key to the pickup attached to a magnet underneath the pickup and that a few people had seen him place the key there, including his cousin and some former coworkers. However, neither he nor his mother had given anyone permission to drive the pickup.

The parties stipulated at trial that the Brown Pride Nortenos (BPN) gang is a criminal street gang whose members have engaged in a pattern of criminal activity as defined by section 186.22. Defendant does not challenge the sufficiency of the evidence presented to establish that he and his companions, Aguilar and Sanchez, were BPN members. Among other things, defendant and his companions each had a personal gang moniker, indicating they were full-fledged gang members, as opposed to mere "wannabes" or associates of the gang.

Defendant also had gang tattoos prominently displayed on his body, including the word "Norte" just above his left eyebrow, and tattoos of dots on his face and hands representing the number 14, which is symbolic of the letter "N," the fourteenth letter in the alphabet. Lemoore Police Corporal Steven Rossi, who testified as a gang expert in this case, further testified that defendant's tattoos were significant as a form of "claiming." "Claiming," the expert explained, is "saying that I belong to a particular gang ... and you need to fear me because I belong to that gang."

Because defendant challenges the sufficiency of the evidence to establish his offenses were committed for the benefit of his gang, we cite extensively the expert's testimony relevant to this issue. In describing how gang members commit crimes to gain recognition or "respect" for the gang and from fellow gang members, Corporal Rossi acknowledged that certain crimes garner more respect than others, explaining:

"The crimes that I would say give a gang member the most respect would be crimes of violence against, usually rival gang members, sometimes against police officers, but they can also — it doesn't necessarily have to be a crime of violence, it could be a property crime. In this case, such as stealing a car and then not cooperating with the police or doing something during this act wild and crazy that would show, `I'm doing what I'm doing, I'm going to make the gang look good, I'm going to do whatever it takes to get away with this crime and not cooperate with the police, I don't care what it takes.' [¶] ... [¶]

"It all comes back to the fear and intimidation. The more willing the individual is to do something that is outrageous, wild and crazy, the more the individual and the gang are viewed upon by the rivals, by the law enforcement and by the citizens as being dangerous, and they will fear them, which is in their minds what gets them respect and status."

Concerning the significance of particular items found in this case, Corporal Rossi testified in relevant part:

"Q. Now, let me show you briefly Exhibits 10 and 11, which show the truck with the red bandanna hanging off the steering column; is that red bandanna hanging there significant to you?

"A. Yes.

"Q. And what is significant about that red bandanna hanging off the steering column to you?

"A. It would tell me that a Norteno had been in this truck. Listening to the prior testimony from the victim and her son, it did not belong to them. Listening to the testimony about the truck, my...