Opinion
NOT TO BE PUBLISHED.
Los Angeles County Super. Ct. No. TA081856.
APPEAL from judgments of the Superior Court of Los Angeles County, Paul A. Bacigalupo, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Timothy Akens.
Kiana Sloan-Hillier, under appointment by the Court of Appeal, for Defendant and Appellant Dayvion Johnson.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Dayvion Johnson and Timothy Akens were convicted of possession of marijuana and cocaine base for sale (Health & Saf. Code, §§ 11359, 11351.5) with a criminal street gang enhancement. (Pen. Code, § 186.22.) Each appellant challenges the enhancement, focusing on the requirement in subdivision (b)(1) that the present crime must be committed to “promote, further, or assist” a criminal street gang. They argue that the aided criminal conduct must be some offense other than the crimes charged in the present case, and that since there was no evidence that it was, the gang enhancement was improperly applied. Johnson also argues that evidence supporting the finding that he is a gang member was based on hearsay and speculation, and was not admissible evidence. We find no error and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
In his opening brief, Johnson concedes that the phrase “promote, further, or assist in any criminal conduct by gang members” (§186.22, subd. (b)(1)) does not require intent to further criminal conduct beyond the charged crime. Johnson changes that position in his reply brief, where he asserts that intent to further criminal conduct beyond the charged crime is required.
FACTUAL AND PROCEDURAL SUMMARY
On November 1, 2005, Officer Erik Shear of the Los Angeles Police Department was engaged in surveillance of a suspected drug house. The house was located in territory claimed by the 98th Street Mafia Crips, a criminal street gang, which is a clique within the Main Street Mafia. After witnessing behavior consistent with the sale of drugs, Officer Shear obtained a search warrant and returned to the house with backup. Upon execution of the warrant, the officers found marijuana packaged in baggies, loose cocaine base, scissors and a weighing scale on a coffee table. Marijuana was found in a kitchen cabinet and around the toilet, a placement consistent with an attempt at flushing the evidence away. Cocaine also was found around the base of the toilet.
Appellants were inside the house at the time of the search, and were arrested. They were charged with possession of marijuana for sale (a violation of Health & Saf. Code, § 11359), and possession of cocaine base for sale (a violation of Health & Saf. Code, § 11351.5). Each count alleged that the offense was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1).
At trial, Detective Samuel Marullo, a supervisor in the Los Angeles Police Department Gang Impact Team, testified as a gang expert. Detective Marullo testified that both appellants were known members of the 98th Street Mafia Crips gang; that the drug house was located within the territory claimed by that gang; and that the gang routinely engaged in drug sale activity. Detective Marullo also testified that a gang would not permit the sale of drugs by a non-gang member in their territory.
The jury found appellants guilty on both counts and found true the allegations that the crimes were committed for the benefit of a criminal street gang. Each appellant filed a timely appeal from the judgment of conviction.
DISCUSSION
I
Section 186.22, subdivision (b)(1), as relevant here, provides for a sentence enhancement 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.” Appellants argue that the clause “with the specific intent to promote, further, or assist in any criminal conduct by gang members” means that the present crime must serve to “promote, further, or assist” conduct that is in addition to and separate from the criminal conduct by gang members in the case charged.
When the issue before the court is the interpretation of a statute, our decision as to its meaning presents a question of law which we review de novo. (People v. Cromer (2001) 24 Cal.4th 889, 894.) We construe the statute to ascertain the legislative intent and effectuate the legislative purpose insofar as we may do so consistent with statutory language. (People v. Snook (1997) 16 Cal.4th 1210, 1215.) The starting point always is the plain meaning of the words used. (People v. Broussard (1993) 5 Cal.4th 1067, 1071.)
Appellants rely on a federal appellate decision, Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, for their interpretation of “promote, further, or assist” as requiring conduct in addition to and separate from the conduct in the charged case. Garcia supports their argument. But federal authority construing state law, while instructive, is not binding on the state court. (People v. Bradley (1969) 1 Cal.3d 80, 86.) Thus, Garcia is not binding here.
This court recently rejected the reasoning and conclusion in Garcia. (See People v. Romero (2006) 140 Cal.App.4th 15.) In Romero, we held the present crime is sufficient to satisfy the specific intent element because this criminal conduct created a reasonable inference that the defendant possessed the specific intent to “promote, further, or assist” gang activity and was sufficient to uphold the gang enhancement. (Id. at p. 20.)
Our interpretation of section 186.22 was followed in People v. Hill (2006) 142 Cal.App.4th 770. In Hill, the defendant conceded the evidence was sufficient that he committed the crime for the benefit of the street gang, although he asserted there was insufficient evidence that he intended to enable or further any other gang crime. (Id. at p. 774.) The Hill court held that section 186.22, subdivision (b) does not require that defendant’s intent to enable or promote criminal endeavors by gang members relate to criminal activity apart from the offense presently charged. (Ibid.) We adhere to the reasoning in Hill and Romero.
II
We turn to Johnson’s claim that the evidence was insufficient to support the gang enhancement. In determining sufficiency of the evidence to support a jury finding, we view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Dominguez (2006) 39 Cal.4th 1141, 1153.)
A gang allegation may be proven by expert testimony about criminal street gangs. (People v. Gardeley (1996) 14 Cal.4th 605, 616-618.) Detective Marullo, a gang expert, testified that both appellants were known gang members. Akens was an admitted gang member and was registered in Cal Gang, a law enforcement database of known gang members. Both Akens and Johnson have tattoos and street monikers which signify membership with the 98th Street Mafia Crips gang.
Detective Marullo further testified that the sale of drugs was typical of 98th Street Mafia Crips gang activity, and that a gang would not permit the sale of drugs by a non-gang member in its territory. Marullo also testified that gangs provide protection for drug operations within their turf, benefit financially from drug houses and would not tolerate not getting paid. Since appellants are known members of the 98th Street Mafia Crips gang who were convicted of the sale of drugs within the established territory of that gang, it is a reasonable inference that their drug sales were a gang-related activity.
Viewed in the light most favorable to the judgment, this evidence is sufficient to support a jury’s true finding on the section 186.22 enhancement.
DISPOSITION
The judgments are affirmed.
We concur: WILLHITE, , SUZUKAWA, J.