People v. Gonzalez ( 2021 )

Filed 1/6/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B297509
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA097910)
v.
LEONARD LEJOHN GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Edmund Willcox Clarke, Jr., Judge.
Affirmed in part and reversed in part.
Joy A. Maulitz under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and Allison H. Chung, Deputy
Attorney General, for Plaintiff and Respondent.
____________________
A jury convicted Leonard Lejohn Gonzalez of robbing three
people to help his gang. The gang enhancements, however, lack
substantial support. We strike them and otherwise affirm.
Unspecified statutory citations are to the Penal Code.
I
Gonzalez snatched necklaces from three people.
On January 9, 2018, a man in a hooded sweatshirt
approached Young Soon Kim and her daughter at her car in a
grocery store parking lot. It was dark. The man grabbed a gold
necklace around Kim’s neck. She grabbed it too. It broke and the
man ran away with half, leaving scratches on Kim’s neck.
On February 4, 2018, 81-year-old Francisco Candelario and
his wife returned to their residence after shopping. With his
hood up, a man in a hooded sweatshirt entered Candelario’s yard.
He grabbed a gold necklace from Candelario’s neck. The necklace
broke and the man ran off with it. Candelario had paid $5,000
for the necklace.
On February 9, 2018, 72-year-old Douglas Olivera was
loading groceries into his car in a parking lot. A man in a
sweatshirt pushed Olivera against his car and grabbed the gold
necklace from Olivera’s neck. An unidentified driver drove the
man away in a car, leaving Olivera with “a little bump,” “a red
spot on [his] neck.” Olivera could not remember if a hood covered
the man’s head. Olivera “might have” seen the man’s neck.
An information charged Gonzalez with three counts of
second degree robbery (§ 211; counts 1–3). It further alleged
counts 1, 2, and 3 were committed for the benefit of, at the
direction of, or in association with a criminal street gang
(§ 186.22, subd. (b)(1)(C)) and Gonzalez had two prior serious
felony convictions (§§ 667, subds. (a)(1) & (d), 1170.12, subd. (b)).
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The court granted the prosecution’s motion to dismiss other
counts.
The three victims identified Gonzalez as their assailant to
the jury. A video showed Gonzalez at one crime scene.
The parties stipulated that the Boulevard Mafia Crips was
a criminal street gang within the meaning of section 186.22 and
that Gonzalez belonged to this gang.
Long Beach Police Officer Alexander Roberts testified as a
gang expert. Roberts targeted gangs in northern Long Beach,
including the Boulevard Mafia Crips. His job was combating
gangs.
Roberts explained his “three-pronged approach” for
determining gang membership. “I’ll look at clothing and
determine if that’s representative of membership to a gang. I will
judge, based on the location in which we are at, as whether or not
that’s gang territory. And then, more specifically, I’ll look at
tattoos that they may or may not have and what they’re
representative of.”
Roberts said the Boulevard Mafia Crips had 10 to 30
members; its primary activities included shootings, burglaries,
robberies, and illegal weapon possession. The Boulevard Mafia
Crips’s tagline was “only chase dollars.” Members sought to
“present themselves in an affluent light” by driving nice cars,
staying at expensive hotels, and posting pictures of themselves
with cash.
Roberts said no gang member could “sit idly by.” Rather,
“[o]nce you join the gang, it’s required that you put in work. By
putting in work, what they mean is to commit crimes on behalf of
the gang.” Gang members commit crimes to “bolster the status of
themselves but also the gang.” He said gang members typically
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share proceeds from their crimes. Roberts opined that if a gang
member were to commit a crime and not share the proceeds, he
“would be seen as disrespectful . . . . [He] can be excommunicated
from the gang or harmed or killed.”
Roberts knew Gonzalez personally. Roberts had contacted
Gonzalez many times and had helped arrest him. Roberts
explained Gonzalez’s gang moniker was “Cash Boy.” Roberts
described Gonzalez’s three gang-related tattoos. One of these
tattoos covered the front of Gonzalez’s neck.
The prosecution asked Roberts a hypothetical question.
The hypothetical described a gang with a culture of committing
crimes, including robberies, and of displaying “a wealthy
lifestyle.” The hypothetical included three robberies identical to
those in this case. The hypothetical question asked, “based on
those facts, do you have an opinion as to whether each crime of
robbery was committed for the benefit of or in association with or
at the direction of a criminal street gang?”
Roberts answered yes: he believed the hypothetical gang
member committed the crimes to benefit his gang. He said,
“Based upon the hypothetical, he promoted and furthered the
gang by committing those crimes . . . he’s assisting his gang in
having a feared reputation. He’s providing value or monetary
value to his gang, as well as bolstering his reputation within the
gang, as well as the gang within the community.”
On cross-examination, Roberts conceded a gang member
can commit a crime for himself and not for the benefit of his
gang. Roberts admitted many gang connections were missing in
this case. He admitted:
● Gonzalez worked alone in two robberies;
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● during the robberies, Gonzalez did not wear gang
colors;
● during the robberies, Gonzalez did not display gang-
related sports insignia;
● during the robberies, Gonzalez did not make gang
hand signs;
● during the robberies, Gonzalez spoke no gang slogans
or words; and
● the robberies were outside his gang’s territory.
Roberts also admitted there was no evidence on many
points:
● Nothing suggested that Gonzalez showed the stolen
necklaces to other gang members or that other gang
members learned about the robberies another way;
● no facts demonstrated Gonzalez’s one-time getaway
driver was a gang member;
● no proof showed anyone sold the necklaces; and
● there was no evidence Gonzalez told anyone about
these robberies.
Although not addressed in the cross-examination, none of
the victims saw Gonzalez’s tattoos or saw Gonzalez make a gang
sign. None said they believed Gonzalez was a gang member.
Roberts said his opinion was not based on any direct
evidence, but “on the pattern of my observations about this gang,
as well as [of Gonzalez], and how he does display a propensity to
commit violence in social media posts, videos, et cetera.”
Roberts was asked to describe a scenario where a gang
member committed a crime, not for the benefit of his gang, but
solely for the member’s personal benefit.
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Roberts answered by describing an instance where the lone
gang member did not “tell anyone else in the gang about that
crime itself. That would be an instance in which a gang member
commits a crime for himself only.”
Roberts then was asked, “Who, to your knowledge, did
Mr. Gonzalez ever tell he committed these robberies?”
Roberts answered, “As I mentioned previously, I have no
knowledge of your defendant ever mentioning that he committed
a crime.”
The jury found Gonzalez guilty of all three counts of
robbery and found the gang allegations true. The court
sentenced Gonzalez to 25 years to life in prison on count 1, plus
five years for the prior serious felony enhancement. It sentenced
him to 25 years to life on counts 2 and 3, to run concurrent with
the principal term. It also sentenced him to 15 years each for the
gang enhancements, to run concurrent with the life sentences,
and stayed those under section 654.
II
We strike the gang enhancements because no substantial
evidence supported them.
To support a true finding on a section 186.22, subdivision
(b) gang enhancement, the prosecution must prove (1) the
defendant committed the crime for the benefit of, at the direction
of, or in association with a criminal street gang, and (2) the
defendant intended to promote, further, or assist criminal
conduct by gang members. (People v. Albillar (2010) 51 Cal.4th
47, 59 (Albillar).)
We review the record in the light most favorable to the
judgment to determine whether it contains substantial evidence.
(Albillar, supra, 51 Cal.4th at pp. 59–60.) We affirm unless no
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substantial evidence supports the verdict on any hypothesis. (See
People v. Bolin (1998) 18 Cal.4th 297, 331.)
Expert opinion can support a gang enhancement under
section 186.22, subdivision (b)(1). (People v. Vang (2011) 52
Cal.4th 1038, 1048 (Vang).)
Expert opinion, however, must not be speculative. Expert
opinion has no value if its basis is unsound. (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747,
769, 770 (Sargon).) Expert opinion must have a logical basis.
Experts declaring unsubstantiated beliefs do not assist the truth-
seeking enterprise. (See Vang, supra, 52 Cal.4th at p. 1046.)
This applies to all experts, including gang experts. (Ibid.; see
People v. Franklin (2016) 248 Cal.App.4th 938, 949–952 [striking
gang enhancement supported only by gang expert’s speculation].)
This gang expert had no logical basis for his opinion.
Roberts said Gonzalez was “assisting his gang in having a feared
reputation.” But this claim made no sense when nothing linked
these crimes to a gang.
Roberts said Gonzalez was “providing value or monetary
value to his gang . . . .” But Roberts also conceded no evidence
showed Gonzalez shared robbery booty with the gang.
Roberts said Gonzalez had a “propensity to commit
violence.” Propensity evidence generally is forbidden. (See Evid.
Code, § 1101, subd. (a).) Beyond this problem, the inference is
illogical. A propensity for violence is logically unconnected to a
decision to act for the benefit of a gang. One fact does not imply
the other.
The expert also based his opinion “on the pattern of my
observations about this gang, as well as [of Gonzalez] . . . .” It is
insufficient for an expert simply to announce, “based on my
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experience and observation, X is true.” This is the method of the
Oracle at Delphi. It is the black box. This method cannot be
tested or disproved—a feature convenient for would-be experts
but unacceptable in court. “ ‘This “Field of Dreams” “trust me”
analysis’ ” amounts only to a defective “ ‘faith-based prediction.’ ”
(Sargon, supra, 55 Cal.4th at p. 766; see id. at p. 778 [excluding
expert opinion that was “ ‘nothing more than a tautology’ ”].)
This expert contradicted himself on the central point. He
gave an example of a crime that was not for the benefit of a gang:
where the perpetrator did not “tell anyone else in the gang about
that crime itself. That would be an instance in which a gang
member commits a crime for himself only.” That example
matches this case. Yet this match did not faze the expert or
prompt him to reconcile his contradictory claims.
The prosecution did not present evidence to prove Gonzalez
committed these crimes for the benefit of the Boulevard Mafia
Crips, as required by the first prong of section 186.22, subdivision
(b). We need not reach the second prong.
III
Gonzalez attacks his robbery convictions on the ground the
trial court had an independent duty to instruct on the lesser
included offense of theft. Gonzalez claims the evidence was
sufficient to justify convictions on this lesser offense.
Whether the trial court erred in failing to give this
instruction turns on whether there was some evidentiary basis on
which the jury could have found the offense to be less than
robbery. (People v. Garcia (1996) 45 Cal.App.4th 1242, 1245–
1246 (Garcia), overruled in part on other grounds in People v.
Mosby (2004) 33 Cal.4th 353, 365, fns. 2 & 3.)
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Robbery is “the felonious taking of personal property in the
possession of another, from his person or immediate presence,
and against his will, accomplished by means of force or fear.”
(§ 211.) The standard jury instruction does not define “force”
because its definition in the context of robbery is commonly
understood. (Com. to CALCRIM No. 1600 (2020 ed.) p. 1132
[citing People v. Mungia (1991) 234 Cal.App.3d 1703, 1709].)
Gonzalez’s actions satisfy this standard of a commonly
understood level of force. Owners of gold necklaces do not remove
them by yanking them off the neck and breaking them. No one
does that in an ordinary setting. It ruins the necklace. When
another person yanks your necklace from your neck, the act is
forceful. This fact is commonly understood.
Gonzalez used enough force to qualify as a robber. In
Garcia, the “rather polite” Garcia gave a cashier a mere tap on
the shoulder. That was enough. (Garcia, supra, 45 Cal.App.4th
at 1244–1246.) Gonzalez’s three episodes of yanking and
breaking were more forceful than Garcia’s polite tap.
Gonzalez was either guilty of robbery or not guilty of any
crime. There was no instructional error.
IV
Gonzalez challenges various fines and fees assessed against
him. Gonzalez now says the fines and fees must be stayed or
stricken until the court determines he has the ability to pay
them. Gonzalez forfeited these claims by failing to object.
(People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154–1155.)
DISPOSITION
We reverse the true findings on the gang enhancement
allegations attached to counts 1, 2, and 3 and strike the terms
imposed and stayed for those enhancements. We direct the court
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to amend the abstract of judgment accordingly and to forward a
certified copy to the Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
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