Filed 10/8/13 P. v. Viramontes CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

FRANK A. VIRAMONTES,

 Defendant and Appellant.

2d Crim. No. B245414

(Super. Ct. No. KA096547-01)

(Los Angeles County)

Frank A. Viramontes appeals a judgment following conviction of robbery. 

(Pen. Code, § 211.)1 The jury found that he committed the crime to benefit a criminal 

street gang. (§ 186.22, subd. (b)(1).) Viramontes admitted he suffered a prior prison 

term. (§ 667.5, subd. (b).) The trial court sentenced Viramontes to 13 years in state 

prison, consisting of three years for the robbery and 10 years for the gang enhancement. 

(§§ 211, 186.22, subd. (b)(1)(C).) The court stayed a one-year prior prison term 

enhancement. We remand to the trial court to correct the sentence by either imposing or 

striking the one-year prior prison term enhancement, and otherwise affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Viramontes, Jacob Verdona, Albert Silvas, and Lydia Padilla are members 

of the Ford Maravilla street gang. Verdona kept a gun for Viramontes, according to the 

 

1 All statutory references are to the Penal Code unless otherwise stated.
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testimony of Verdona's girlfriend, Nasreen Garcia. Verdona kept it hidden under his 

grandmother's house. 

Verdona and Garcia discovered the gun was missing. They suspected that 

Cheryl Mack and her boyfriend had taken it. Garcia told Viramontes that Mack had 

taken the gun. Viramontes told her he wanted it back and he asked Garcia to take him to 

Mack's house. Garcia drove, with Verdona in her car. Viramontes followed in another 

car with Silvas and Padilla.

Silvas and Padilla forced their way into Mack's house, tied up Mack's 

mother, and took a number of valuable objects. Viramontes waited outside and watched 

for police. After the robbery, Garcia drove Viramontes away. She pled no contest to 

being an accessory to the robbery after the fact. 

In a recorded interview, Viramontes admitted that he stood by the door and 

watched for police during the robbery and that he carried a jewelry box to the car. He 

also admitted he was a member of Ford Maravilla.

Los Angeles Police Detective Jesse Lucero testified as a gang expert. He 

offered the opinion that the robbery was committed in association with, for the benefit of, 

and at the direction of the Ford Maravilla criminal street gang. He testified that Ford 

Maravilla's primary activities are vandalism, robbery, attempted robbery, extortion, 

carjacking, assault, vehicle theft, narcotic sales and transportation, attempted murder, and 

murder. He testified to predicate felonies by gang members, about which the prosecution 

presented documentary evidence. He testified that Viramontes, Silvas, and Padilla were 

members of Ford Maravilla. Lucero had been assigned to East Los Angeles gangs, 

including Ford Maravilla, since 1990, and had been assigned primarily to Ford Maravilla 

for the past two years. The investigating officer, Detective Scott Strong, also testified 

that he knew Silvas to be a member of Ford Maravilla. 
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DISCUSSION

Sufficiency of Evidence to Support Gang Enhancement

Viramontes contends that there is insufficient evidence that he committed 

the robbery to benefit a criminal street gang. (§§ 211, 186.22, subd. (b)(1).) We apply 

the usual standard of review in assessing whether the gang enhancement is supported by 

sufficient evidence. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.) We view the 

evidence and draw all reasonable inferences therefrom in favor of the finding. (Ibid.) 

Although the evidence might support a contrary finding, we do not substitute our views 

for those of the trier of fact. (Id. at p. 60.) 

Viramontes asserts there was insufficient evidence that a primary activity of 

the Ford Maravilla gang was commission of enumerated offenses because Detective 

Lucero did not identify the source of his knowledge that its members had committed the 

crimes he described. (Evid. Code, §§ 800, 801; In re Daniel C. (2011) 195 Cal.App.4th 

1350, 1363-1364 [opinion evidence is insubstantial if not supported by facts in the 

record].) Lucero testified that he had more than 20 years of experience with East Los 

Angeles gangs, had been assigned to the Ford Maravilla gang since 2010, and had 

personally spoken with "50 plus" of that gang's approximately 90 members. His 

testimony was supported by sufficient foundation, unlike the expert in In re Alexander L. 

(2007) 149 Cal.App.4th 605, 611-612, who described no personal contacts with gang 

members or any other basis for his opinion concerning a gang's primary activities. 

Lucero's testimony provided sufficient evidence that Ford Maravilla's primary activity is 

the commission of enumerated offenses. (People v. Gardeley (1996) 14 Cal.4th 605, 620 

[an opinion about primary activities was properly based on conversations with gang 

members, investigations of crimes committed by gang members, and information from 

colleagues].) 

Viramontes also asserts that the crime was not gang related. He contends 

that he sought only to recover his personal property and that there was no evidence that 

his accomplices were gang members or that the gang had any claim to the gun. (People 
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v. Livingston (2012) 53 Cal.4th 1145, 1170 [gang enhancement only applies if the crime 

is gang related]; People v. Rodriguez (2012) 55 Cal.4th 1125, 1138 [not every crime 

committed by gang members is related to a gang].) But Viramontes committed the 

robbery in association with Verdona, Silvas, and Padilla, and sufficient evidence supports 

an inference that they relied on their common gang membership to commit the crime. 

(People v. Albillar, supra, 51 Cal.4th 47, 60.) Garcia testified that Silvas and Verdona 

were members of the Ford Maravilla gang. Lucero testified that Silvas, Verdona, and 

Padilla were members. Garcia testified that Verdona stored the gun for Viramontes and 

that gang members went as a group to recover it or to take property that would 

compensate for its loss. According to Mack's mother, the female robber (Padilla) told her 

that Cheryl Mack stole something "from us." Detective Lucero testified that stealing a 

gun from a gang member would be viewed by gang members as disrespect toward the 

gang and that failure to retaliate would cause Viramontes to lose status or to be 

disciplined by the gang. He also testified that a gang member such as Viramontes would 

only select other gang members to participate in a mission to retrieve a gun because he 

could rely upon them.

Viramontes contends that the testimony that Silva and Padilla were gang 

members was not competent because Garcia and Lucero did not identify the source of 

their knowledge. (Evid. Code, §§ 800, 801.) But Viramontes did not object at trial that 

the testimony lacked foundation. (People v. Panah (2005) 35 Cal.4th 395, 476 

[incompetent evidence, received without objection at trial, takes on attributes of 

competent proof when considered upon the question of sufficiency of the evidence to 

support a finding].) Sufficient evidence supports the jury's findings that Viramontes 

committed the robbery "for the benefit of, at the direction of, or in association with" the 

Ford Maravilla gang. (§ 186.22, subd. (b)(1).) 

The jury's finding that Viramontes committed the robbery "with the specific 

intent to promote, further, or assist in any criminal conduct by gang members" (§ 186.22, 

subd. (b)(1)) is supported by evidence that he selected known gang members to 
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accompany him and that he stood watch for them as they entered the house and robbed 

Mack's mother. (People v. Albillar, supra, 51 Cal.4th 47, 67 ["the statute requires only 

the specific intent to promote, further, or assist criminal conduct by gang members"].) 

Detective Lucero's testimony supported a finding that Viramontes and his fellow gang 

members committed the crime to restore the gang's respect after Cheryl Mack 

disrespected the gang by stealing a member's gun. 

Prior Prison Enhancement

The trial court erroneously stayed the one-year enhancement for a prior 

prison term. (§ 667.5, subd. (b).) The court shall strike the punishment, but not the 

enhancement. (Cal. Rules of Court, rule 4.428.) Viramontes admitted he served a prior 

prison term within the meaning of section 667.5, subdivision (b). The enhancement is 

mandatory unless stricken. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) The 

error is jurisdictional. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1562.)

DISPOSITION

The trial court is directed to correct the sentence, the court's minutes, and 

the abstract of judgment to either impose or strike the one-year prior prison term 

enhancement. (§ 667.5, subd. (b).) On resentencing, the trial court shall forward the 

corrected abstract to the Department of Corrections and Rehabilitation. In all other 

respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.
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Juan Carlos Dominguez, Judge

Superior Court County of Los Angeles

______________________________

James R. Bostwick, Jr., under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. 

Roadarmel, Jr., Scott A. Taryle, Supervising Deputy Attorneys General, for Plaintiff and 

Respondent.