Opinion
F071647
09-20-2017
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL AYALA MARTINEZ et al., Defendants and Appellants.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant Martinez. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Fernandez. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. DF011820B, DF011820A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant Martinez. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Fernandez. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellants Alvaro Fernandez and Miguel Martinez appeal from their convictions on one count each of carrying a loaded firearm in public (Pen. Code, § 25850), carrying a concealed firearm within a vehicle (§ 25400), and being a felon in possession of a firearm (§ 29800). Each conviction included an enhancement based on findings that appellants committed the crimes for the benefit of a criminal street gang (§ 186.22). Appellants assert several errors, some jointly and others individually. These include allegations the evidence was insufficient to support the gang enhancements, the gang-associated felony nature of the charges, or the underlying offenses. They also include allegations of instructional and jury verdict error, as well as a sentencing concern.
All future statutory references are to the Penal Code unless otherwise noted.
For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants raise several issues relating to the evidence presented at their trial and the proceedings involved therein. Accordingly, we begin by briefly recounting the incident leading to appellants' arrest before recounting more fully the relevant proceedings and evidence. The Underlying Criminal Conduct
At around 4:00 a.m. on September 26, 2014, City of Delano Police Officers Antonio Alvarez and Anthony Puente both saw a pickup truck run a stop sign at the intersection of Girard Street and County Line Road. The truck was stopped and legally searched. There were three people in the truck. The driver was an individual named Jerman Perez. Martinez was in the front passenger seat and Fernandez in the back. Perez and the pickup truck were known to Officer Puente from more than 15 prior contacts. When contacted, Fernandez was intoxicated. To prevent him from falling, Officer Puente assisted Fernandez by holding his arm before having him sit on the curb.
Officer Alvarez explained the truck had front and rear bench seats. Under the front bench seat, roughly in the middle, Officer Alvarez located a loaded revolver. According to Officer Alvarez, the gun was in a location that was accessible to all occupants of the vehicle.
All three occupants were ultimately arrested, charged, and tried together. Evidence of Appellants' Status as Active Participants in a Criminal Street Gang
To support the gang enhancements and felony charges, the People offered extensive expert testimony on the Norteño gang system in Delano through City of Delano Police Officer Michael Strand.
Evidence Regarding General Gang Structures and Practices
Officer Strand was first called to testify regarding general characteristics of the Norteño gang. In that regard, Officer Strand stated the Norteño gang's primary activities include "murder, attempt murder, assault with a deadly weapon, criminal threats, carjacking, extortion, grand theft, firearm offenses, drive-by shootings, witness intimidation, burglary, vandalism, [and] robbery." Norteño gang members join the gang and then maintain good status in the gang by putting in work; i.e., committing crimes for the benefit of the gang and generally backing up the Norteño gang when called upon.
The gang itself is organized in a hierarchical structure. At the top is a group called the Nuestra Familia, which is a prison gang consisting of elite Norteño gang members. Below the Nuestra Familia is a group known as Nuestra Raza or the Northern Structure. Below the Nuestra Raza are the general Norteño gang members, who may further organize into subsets or cliques. Norteños within Delano are called Delano Norte, and many of them will belong to various different subsets such as East Side Delano, North Side Delano, West Side Delano, and several others. These subsets often work together as part of the general Delano Norte when committing crimes.
Within the Norteño gang, individuals may be considered big homies or little homies based on their status and the work they have done for the gang. Big homies have more authority and can tell little homies what to do. Each subset will have a head and that person will pass down orders that come from higher levels of the gang structure at meetings, which are sometimes called barbecues. Similarly, the heads of these various subsets will sometimes meet to discuss the goals and plans of the larger Norteño gang. Big homies are likely to be instituted as the heads of subsets. Throughout California, there are several thousand Norteños.
Norteños utilize several common symbols and signs to demonstrate gang affiliation. These include the color red, the letter "N," and the number 14 (represented in various forms such as dots, roman numerals, and Mayan numerals). Members may wear San Francisco 49er apparel, where the "SF" is considered to stand for "scrap free" or "sweet fourteen." They may also wear K-Swiss shoes, where the brand is considered to stand for "Kill a Scrap When I See a Scrap." Other symbols utilized include the huelga bird, which is an Aztec symbol representing that one is a teacher in the Norteño hierarchy, the Northern Star, earned after committing a hit or an assault on a rival, and a sombrero with a dagger through it.
Scrap is a derogatory term for a Sureño gang member, the Norteño's rival gang.
As an organization, the Norteño gang follows what is known as the 14 bonds. This document is essentially a set of rules and guidelines that Norteño members are expected to abide by. Officer Strand recounted some of these rules. According to his testimony, Bond 1 requires Norteños to educate themselves and others on the various rules and policies of the gang. Bond 7 states that Norteños should not put other Norteños' lives at risk and should not cooperate with police, this includes informing other Norteños when one has contraband or weapons on them. Bond 12 states that Norteños should back up other Norteños in battle. Bond 13 states Norteños should send money or financial aid to incarcerated Norteños.
More generally, Officer Strand noted that Norteños will often possess guns in order to protect themselves and fight with rivals. These guns are essentially tools of the gang trade that are commonly shared amongst Norteños when needed.
Evidence of Gang Membership
Officer Strand was recalled later in the trial to provide his opinion regarding appellants' status as active gang members at the time of their crimes.
With respect to Fernandez, Officer Strand noted Fernandez has the gang nickname of "Shorty" and several gang tattoos. These tattoos include: the roman numeral XIV; the saying "Nasty North"; a huelga bird; "ESD," which stands for East Side Delano, with the S crossed out as a sign of disrespect to Sureños; the letter N; one dot on the right cheek and four on the left; a Northern star; "RIP Cruz," which refers to the death of Cruz Martinez, a known Norteño gang member; and the Mayan symbol for 14. Officer Strand explained that the Nasty North tattoo was a "pretty good indicator this person is a Norteño" and that the Northern Star was a "common sign or symbol of the Norteño gang" which was "indicative that this person has committed a hit in order to earn the tattoo." Officer Strand explained the huelga bird indicates that Fernandez is a teacher in the gang. Officer Strand also noted that the N tattoo on Fernandez's face was added after he was arrested for his current crime, indicating "ongoing membership with the gang."
Officer Strand also detailed several documented incidents involving Fernandez that showed active gang membership. These included a 2012 incident where Fernandez was identified as one of a group attacking a Norteño dropout. Fernandez yelled gang slogans and committed the crime with other known Norteños. He was ultimately convicted of gang participation and assault with a deadly weapon. They also included a 2010 incident where Fernandez made statements to an Officer Guerrero including, "I am a gang member. Norte for life, homie. Delano Norte. You wish you were a Norteño, Guerrero. . . . This is Norteño lifestyle."
With respect to Martinez, Officer Strand provided a similar analysis. Martinez utilizes the gang nickname "Chucky" and has several gang tattoos. These tattoos include: the name "Cruz," which refers to the same Cruz Martinez tattooed upon Fernandez; a Northern star; the term "WSD14," which stands for West Side Delano 14; a "W" which again stands for West Side Delano; the initials "NS" which stand for Northern Structure and suggest Martinez has an elevated status in the gang hierarchy; an "X4"; the letters "SK" which stand for scrap killer; a "W" and a hand making a "W" shape, both standing for West Side; "Ene"; a red "N"; a "WSD" tattoo and a "West" tattoo with the S crossed out as a sign of disrespect to Sureños; one dot on his thumb and four on his knuckles, symbolizing 14; the Mayan symbol for 14; "D" and "N" on the top of each hand, symbolizing Delano Norte; an "NKC" which stands for North Kern County; and the phrase "active block, South El Dorado," which represents that the area Martinez lives in is active within the gang, among others. Officer Strand noted that several of Martinez and Fernandez's tattoos were similar and stated that many of Martinez's tattoos were indicative of his membership in the Norteño gang.
As with Fernandez, Officer Strand detailed several documented incidents involving Martinez that showed active gang membership. These included a 2014 incident where Martinez was found in a vehicle with several known Norteño gang members, one of whom had a firearm. In a 2013 contact, Martinez's ex-girlfriend and the mother of their child stated Martinez is a Northern gang member. In a 2012 incident, Martinez told police he "backs up the North." In a 2011 incident, Martinez participated in a home robbery with a known Norteño gang member. In addition, Officer Strand recounted calls made by Martinez while in jail, in which he told an associate to "tell all the little homies right there, say I want some money too. If not, when I get out I am . . . regulate on [them]," asked another if they had seen him gang-banging previously, and used the monikers of several known Norteño gang members when discussing them. Officer Strand stated the discussion of money demonstrated the use of Bond 13, which requires financial assistance to incarcerated Norteños, and the expectation that Martinez could discipline lower ranking gang members.
Officer Strand then provided a similar analysis for Perez, discussing many similar tattoos and documented contacts demonstrating Perez was also an active gang member. One incident described a contact where Perez was with the same Cruz Martinez referred to in Fernandez and Martinez's tattoos.
Officer Strand also described a more recent incident involving all three defendants. On October 15, 2014, appellants and Perez were in a holding cell with several other Norteño gang members. Fernandez confronted a Norteño who had previously been in administrative segregation and attacked him. Martinez, Perez, and several other Norteños aided Fernandez in the fight and were seen congratulating each other when the fight concluded. Officer Strand opined the fight was a form of discipline and that it demonstrated all three, along with the others supporting Fernandez, were adhering to Bond 12, which requires Norteños to assist each other in battles.
Opinion Current Offense was Committed for the Benefit of a Street Gang
In light of the evidence discussed by Officer Strand, he opined that each of the defendants, including Fernandez and Martinez were active members of the Norteño gang. He was then asked a hypothetical question, based on the facts adduced at trial, as to whether individuals possessing a loaded firearm would do so for the benefit of, at the direction of, or in association with the Norteño street gang. Officer Strand responded in the affirmative, explaining that having a gun benefits the Norteño gang by preparing gang members to fight for territory and deplete the enemy force, as well as giving the gang a reputation of being feared and violent which, in turn, increases the gang's ability to continue its pattern of criminal activity. Evidence of Predicate Offenses
Officer Strand testified to two incidents he described as predicate offenses. In the first, a documented Norteño named Christian Torres pled no contest to assault with great bodily injury following a knife fight that involved several Norteños attacking the victims and calling them scraps. Officer Strand noted that Torres admitted to his status as a Norteño gang member at the time of the incident. In the second, Martinez and a Norteño named Marcos Romero were involved in a traffic stop where Romero was found with a firearm and ultimately pled to carrying a loaded firearm in public as a member of a criminal street gang. Officer Strand opined that both defendants were active Norteño gang members at the time of their offenses. Martinez's Testimony
Martinez chose to testify on his behalf and stated he was drinking on the night of the incident and called a friend for a ride home. As he was walking to the park where he would be picked up he stepped on and found a gun. Martinez claimed the others in the car did not know about the gun and that he threw it under the seat when he saw the police. He claimed to not recall anything else because he was intoxicated. On cross-examination, Martinez denied being a Norteño, stated the huelga bird tattoo was for Cesar Chavez, stated Cruz was his cousin but that he did not know whether Cruz was a Norteño, claimed not to know why he had his "WSD," "N," "14," or "DN" tattoos, and claimed his "NS" tattoo was the initials for his "baby mama's name." Jury Instructions and Verdict
Upon the conclusion of the evidence, the court instructed the jury. Relevant to the issues raised in this case, the court provided detailed instructions regarding what must be proven to convict appellants of the crimes charged or their lesser offenses. As the court explained in various instructions, a conviction under section 186.22, subdivision (a), is a lesser crime of both the section 25850 and 25400 charges. The court then provided a complete set of instructions regarding a charge under section 186.22, subdivision (a). These instructions included definitions for the terms "pattern of criminal gang activity," "criminal street gang," "primary activities," and "active participation." The court then provided instructions relevant to each of the three charges, beginning with the third, under section 29800, followed by the second, under section 25400, and the first, under section 25850. The court concluded the instructions on the various charges by instructing the jury on what is necessary to satisfy the separate gang enhancements.
As appellants raise concerns with the instructions relating to counts one and two, we recount those with more specificity. With respect to count two, the section 25400 charge, which was given to the jury first, the court informed the jury that "[e]very person who carries concealed within any vehicle under his control or direction, with knowledge of its presence, any pistol, revolver, or other firearm capable of being concealed upon the person and who is an active participant in a criminal street gang is guilty of a violation of Section 25400 Subdivision (c)(3)." The court then stated: "In order to prove this crime, each of the following elements must be proved: one, a person carried concealed within any vehicle under his control or direction a pistol, revolver, or firearm capable of being concealed upon the person; two, the person had knowledge of the presence of the firearm; and three, the person was at the time an active participant in a criminal street gang."
The court provided similar instruction for count one, the section 25850 charge. First, the court informed the jury that "[e]very person who, with knowledge of its presence, carries a loaded firearm in a vehicle while in any public place or while on any public street in an incorporated city and that person is an active participant in a criminal street gang and willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang is guilty of a violation of Penal Code Section 25850." The court then stated: "In order to prove this crime, each of the following elements must be proved: one, a person carried a loaded firearm on his person or in a vehicle while in any public place or while on any public street in an incorporated city; two, the person had knowledge of the presence of the firearm; three, at that time the person was an active participant in a criminal street gang; four, the members of that gang engaged in or have engaged in a pattern of criminal gang activity; five, that person knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; and six, that person either directly and actively committed or aided and abetted a member of that gang in committing the crime of felon in possession of a firearm as charged in Count 3."
Following the instructions, the parties provided closing arguments and the jury retired to resolve the case. With respect to counts one and two, and relevant to the disputes in this matter, the jury was asked to conclude appellants were guilty of "Being a Member of a Criminal Street Gang Carrying a Loaded Firearm on a Public Street, in violation of Section 25850(c)(3)" and "Being a Member of a Criminal Street Gang Carrying a Concealed Firearm, in violation of Section 25400(c)(3)." The jury ultimately found both appellants and Perez guilty of all charged offenses and found true the gang enhancement for each charge. Sentencing and Appeal
Prior to sentencing, Fernandez requested the trial court strike his prior felony conviction from consideration. After explicitly recognizing its discretionary authority to dismiss prior convictions for sentencing and listening to argument, the court explained it was looking at Fernandez's full criminal history, his background, his character, and his prospects. In doing so, the court concluded Fernandez's recent crimes were of great concern. The court noted Fernandez was committed to the Department of Corrections in 2009 and had violated parole and probation several times since. As reflected in the probation report, these crimes included a weapons offense in 2009, petty theft and battery of a peace officer in detention in 2010, and assault with a deadly weapon with a gang charge under section 186.22, subdivision (a) in 2012. Reviewing this history, the court concluded it could not find that Fernandez may be deemed outside the "Three Strikes" law's spirit, and denied his request.
The court ultimately sentenced Fernandez to a total term of 15 years and Martinez to a total term of 14 years. This appeal timely followed.
DISCUSSION
People v. Prunty (2015) 62 Cal.4th 59 (Prunty).
Appellants both assert that there was insufficient evidence linking the Norteño subsets to which appellants belonged to each other or to the predicate offenses. Appellants claim Officer Strand was required to connect the East Side Delano and West Side Delano subsets of the Norteño gang because there was evidence Martinez belonged to the West Side Delano subset and Fernandez belonged to the East Side Delano subset. Similarly, appellants argue the evidence introduced by the gang expert was insufficient to tie their activities to the overarching Norteño gang.
Standard of Review and Applicable Law
On each count, the jury found appellants committed the charged offense "for the benefit of, at the direction of, or in association with a criminal street gang and with the specific intent to promote, further or assist in criminal conduct by gang members, within the meaning of Penal Code section 186.22(b)(1)." A criminal street gang under this statutory scheme is "any 'ongoing organization, association, or group of three or more persons' that shares a common name or common identifying symbol; that has as one of its 'primary activities' the commission of certain enumerated offenses; and 'whose members individually or collectively' have committed or attempted to commit certain predicate offenses." (Prunty, supra, 62 Cal.4th at p. 67; § 186.22, subd. (f).)
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
Sufficient Evidence Connects Appellants to the Overarching Norteño Gang
In Prunty, the California Supreme Court held that "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22[, subdivision] (f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Prunty, supra, 62 Cal.4th at p. 71.) This showing demands more than a shared ideology or philosophy, a common name, a common enemy and/or common symbols. (Id. at pp. 70-72.) "The prosecution's evidence must permit the jury to infer that the 'gang' that the defendant sought to benefit, and the 'gang' that the prosecution proves to exist, are one and the same." (Id. at p. 75.) Thus, the prosecutor must adduce evidence that "allow[s] the jury to reasonably infer that the 'criminal street gang' the defendant sought to benefit—or which directed or associated with the defendant—included the 'group' that committed the primary activities and predicate offenses." (Id. at p. 76.)
Appellants argue that the evidence suggesting each was part of an alleged Norteño subset demonstrates the prosecution's theory turned on the existence and conduct of one or more gang subsets. We do not agree. Nothing about the existence of potential gang subsets necessitates the prosecution allege those subsets are the gang appellants represent. Indeed, in Prunty itself, despite evidence that multiple Norteño subsets existed in the Sacramento area, the court found the prosecution properly sought to prove that Prunty acted "to benefit the Sacramento-area Norteños" generally, and not any particular subset. (Prunty, supra, 62 Cal.4th at p. 82, fn. omitted.) Having made this election, the prosecution then relied on evidence of crimes committed by various gang subsets to prove the predicate offense requirements, without adequately demonstrating those subsets were part of the Sacramento-area Norteño gang. (Id. at pp. 82-83.)
Similar to Prunty, here the prosecutor sought to prove appellants were acting as part of and to benefit the larger Norteño gang, and not any particular subset. In this task, the prosecution's expert witness relied on numerous supporting facts, including extensive Norteño-affiliated tattoos (some demonstrating appellants had committed hits for the Norteño gang or had become teachers in the Norteño gang), appellants' self-identification as Norteños, behavior adhering to overarching Norteño beliefs and bylaws, and both association with and participation in criminal activities with other known Norteños, exclusive of subset. We conclude this evidence was sufficient for a rational trier of fact to conclude appellants were part of the larger Norteño gang described by Officer Strand, exclusive of any suggestion they may have also been part of an alleged Norteño subset in Delano.
Distinguishing this case from Prunty, the prosecution then introduced evidence of predicate offenses committed by others classified as general Norteño gang members, and supported that assertion with uncontested evidence of some combination that the perpetrators self-identified as Norteños, possessed Norteño tattoos, or had been previously classified as Norteños. While appellants now complain that the prosecution introduced no evidence regarding which subsets may have been involved in these crimes, their argument again assumes the prosecution must proceed on a theory of related subsets where evidence of subsets exists. Prunty itself demonstrates this is not the case, as the court noted the expert in that case failed to demonstrate "that the subsets that committed the predicate offenses, or any of their members, self-identified as members of the larger Norteño association that the defendant sought to benefit." (Prunty, supra, 62 Cal.4th at pp. 82-83.) The unmistakable point of the Prunty court's discussion is that the prosecution may proceed on the theory that the relevant gang is the Norteño gang generally where the evidence supports this conclusion. Consistent with this analysis, where the evidence is sufficient to demonstrate that members of the larger Norteño gang committed the predicate offenses we see no reason why the prosecution cannot rely on that evidence to support its theory.
Here, Officer Strand provided uncontested evidence that the persons committing the predicate offenses were part of the larger Norteño gang when they committed their crimes, not some particular subset. Having already demonstrated appellants associated with the general Norteño gang and shared similar tattoos, this evidence demonstrated there were at least three individuals, associating with a similarly named gang and sharing similar symbols, who had participated in criminal activity in support of the general Norteño gang. This evidence was sufficient to satisfy the contested portion of the statutory scheme's definition for a criminal street gang. As such, there is no conflict in the evidence presented qualifying as Prunty error. Intent to Promote , Further , or Assist in Criminal Conduct
In a partially related argument, appellants contend there was no evidence they had " 'specific intent to promote, further, or assist in . . . criminal conduct by gang members,' " as required to satisfy the gang enhancement requirements of section 186.22, subdivision (b)(1). To the extent appellants contend the prosecution failed to present evidence relevant to appellants' alleged Norteño subsets, our conclusion the prosecution sufficiently tied appellants to the larger Norteño gang resolves this dispute. Within the evidence introduced about the Norteño gang, Officer Strand explained that possessing a gun benefits the Norteño gang generally by preparing gang members to fight for territory as well as by increasing the gang's reputation for being feared and violent which, in turn, increases the gang's ability to continue its criminal activities.
Appellant also relies upon this court's opinion in People v. Ramon (2009) 175 Cal.App.4th 843. We do not find that analysis persuasive under the facts of this case. In Ramon, this court found that evidence two gang members possessed a stolen vehicle and an unregistered firearm in gang territory was insufficient to support the expert's testimony that the offense was committed for the benefit of their gang. We reversed the gang enhancement finding because the record did not contain any facts from which the expert could discern whether the defendants were acting on their own behalf or were acting on behalf of the gang. (Id. at pp. 849, 851.) However, we also noted the analysis might be different had the expert properly opined that possessing stolen vehicles was one of the typical activities of the gang. (Id. at p. 853.) Here, the expert did just that. As Officer Strand explained, firearm offenses are one of the gang's primary activities and engaging in that activity aids the gang generally by increasing their reputation for violence and preparing them to take or defend turf. In addition, the facts adduced at trial could be reasonably interpreted to show appellants and Perez were active gang members, some with prior felony convictions, sharing a gun that was accessible to each. These facts and admissible opinions are sufficient to distinguish Ramon and constitute sufficient evidence to support the gang enhancement here. (See People v. Villalobos (2006) 145 Cal.App.4th 310, 322 [intentional acts combined with knowledge those acts would assist a gang member sufficient to demonstrate relevant intent].) Active Participation in a Criminal Street Gang
In supplemental briefing submitted in this case, appellants raised three additional arguments concerning their felony convictions under sections 25850 and 25400. As appellants noted, to constitute felonies both convictions require proof of both the underlying offense and of the fact "the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22." (See §§ 25850, subd. (c)(3), 25400, subd. (c)(3).)
Appellants' first argument contends the evidence submitted to demonstrate they were active participants in a criminal street gang was insufficient for the same reasons under which they alleged Prunty error—that Officer Strand failed to tie the subsets appellants allegedly represented to the larger Norteño gang. For the reasons set forth above, we reject that argument.
Appellants' second and third arguments, however, require further discussion. In these arguments, appellants contend the jury both received improper instructions on the elements necessary to prove they were active participants in a criminal street gang and received a flawed jury verdict form that only required them to conclude appellants were members of a street gang.
Standard of Review and Applicable Law
Under our Supreme Court's precedent, the phrase " 'an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22' " requires proof of each element that makes up the offense described in section 186.22, subdivision (a), when used in a statute to elevate a misdemeanor to a felony offense. (People v. Infante (2014) 58 Cal.4th 688, 691-692; People v. Robles (2000) 23 Cal.4th 1106, 1115.) Thus, for appellants' firearm offenses under section 25850 and 25400 to qualify as felonies, the People must prove appellants are " 'actively particpat[ing] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity' and 'willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.' " (Robles, at p. 1115.) Active participation in a criminal street gang requires involvement with the gang that is more than nominal or passive. (People v. Lamas (2007) 42 Cal.4th 516, 523.) The crime of being a felon in possession of a firearm is sufficient to satisfy the felonious criminal conduct element. (Infante, at p. 695.) However, merely being a member of a criminal street gang while committing the misdemeanor offense of carrying a loaded firearm in public is not sufficient to satisfy the required elements. (Lamas, at p. 524.)
"Instructional error regarding the elements of the offense requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict." (People v. Chun (2009) 45 Cal.4th 1172, 1201.) When considering potential prejudice for an omitted element, the question is "whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." (Neder v. United States (1999) 527 U.S. 1, 19.) More generally, "we look to whether the defendant has shown a reasonable likelihood that the jury, considering the instruction complained of in the context of the instructions as a whole and not in isolation, understood that instruction in a manner that violated his constitutional rights. [Citations.] We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation, and we presume jurors can understand and correlate all instructions given." (People v. Vang (2009) 171 Cal.App.4th 1120, 1129.)
" ' " 'A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court.' [Citations.]" [Citations.] "The form of a verdict is immaterial provided the intention to convict of the crime charged is unmistakably expressed. [Citation.]" [Citation.] "[T]echnical defects in a verdict may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice." ' " (People v. Jones (2014) 230 Cal.App.4th 373, 378-379.)
Alleged Instructional and Jury Form Error
Appellants argue the record does not demonstrate the jury found appellants were active participants in a criminal street gang, as defined in section 186.22, subdivision (a). We do not agree.
With respect to appellants' charge under section 25850, appellants do not contest that the instructions contained each required element of section 186.22, subdivision (a). Rather, appellants allege the instructions "did not state that the elements were necessary to establish that Martinez was an active participant in a criminal street gang, as defined in section 186.22, subdivision (a)." Our independent review confirms that each required element of section 186.22, subdivision (a) was referenced in the instructions for the section 25850 charge. As the court explained to the jury, "In order to prove this crime, each of the following elements must be proved: one, a person carried a loaded firearm on his person or in a vehicle while in any public place or while on any public street in an incorporated city; two, the person had knowledge of the presence of the firearm; three, at that time the person was an active participant in a criminal street gang; four, the members of that gang engaged in or have engaged in a pattern of criminal gang activity; five, that person knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; and six, that person either directly and actively committed or aided and abetted a member of that gang in committing the crime of felon in possession of a firearm as charged in Count 3."
These instructions provided in element three that the jury find appellants were active participants in a criminal street gang. In elements four and five the court instructed the jury that appellants must have knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity. And, in element six, the court instructed the jury that appellants must have willfully promoted, furthered, or assisted in any felonious criminal conduct by members of that gang by specifically furthering or assisting in the crime of being a felon in possession of a firearm. In other instructions, the court provided definitions for "pattern of criminal gang activity," "criminal street gang," and "active participation" in the context of section 186.22, subdivision (a), which were consistent with the case law cited above. Moreover, contrary to appellants' assertion, the trial court directly instructed the jury that "each of the following elements must be proved" to convict appellants of the crime charged. As such, we find no instructional error with respect to count one.
To the extent appellants claim these instructions are confusing or misleading, they had an obligation to request clarifying instructions. (People v. Valdez (2004) 32 Cal.4th 73, 113.) Having failed to do so, they have forfeited any claim of error. (Ibid.)
With respect to appellants' charges under section 25400, appellants argue the instructions fail to identify each element required for a conviction. With respect to this claim, we agree. The trial court instructed the jury that it must find "one, a person carried concealed within any vehicle under his control or direction a pistol, revolver, or firearm capable of being concealed upon the person; two, the person had knowledge of the presence of the firearm; and three, the person was at the time an active participant in a criminal street gang." Unlike the instructions for the section 25280 charge, the instructions for the section 25400 charge did not reference the fact the People must prove that appellants had knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity or that appellants willfully promoted, furthered, or assisted in any felonious criminal conduct by members of that gang. Moreover, we do not agree with the People that the overall form of the instructions demonstrates no error exists. The court specifically defined "active participation" in a manner focusing upon its status as an independent element in the section 186.22, subdivision (a) instructions and, thus, a mere reference to the same statutory language would be insufficient to inform the jury they must consider all of the section 186.22 elements to convict of the felony charge and not just the element relating to the instruction given.
The error does not require reversal, however, because it is beyond any reasonable doubt that the error did not contribute to the verdict. Appellants would not have obtained a more favorable outcome had the jury been properly instructed on the elements of the section 25400 charge. As detailed above, the factual evidence supporting appellants' knowledge of and intent to aid in the felonious conduct of the Norteño street gang was extensive and, generally, not contradicted. More critically, though, is the fact that the jury was properly instructed on and forced to decide the factual issues supporting the felony, gang-enhanced version of section 25400 when resolving the similar requirements of the section 25850 charge. The court also informed the jury that a conviction under section 186.22, subdivision (a), was a lesser offense to both the section 25850 and 25400 charges and provided the jury with the elements of that offense. The jury necessarily and adversely resolved the factual disputes concerning the gang aspect of the section 25400 charge when convicting appellants of the section 25850 charge. Thus, any error in failing to properly instruct the jury on the gang aspect of the section 25400 was harmless beyond a reasonable doubt. (See People v. Gonzalez (2016) 246 Cal.App.4th 1358, 1381, review granted July 13, 2016, S234377.)
For the same reasons, we reject appellants' allegation of prejudicial error with respect to the verdict forms. While it is correct that the forms identified the crimes charged as "Being a Member of a Criminal Street Gang" carrying either a loaded or concealed firearm, the issues submitted to the jury and the instructions provided by the court, particularly with respect to the 25850 charge, leave the unmistakable impression that the jury intended to convict on the properly charged crimes of carrying a loaded or concealed firearm while being an active participant in a criminal street gang, as defined in subdivision (a) of section 186.22. This conclusion is further supported by the substantial, uncontested evidence supporting these charges and the jury's similar conviction on all counts under section 186.22, subdivision (b)(1), which required the jury to also conclude appellants committed the charged crimes "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." Fernandez's Argument Regarding Possession of a Firearm
Appellant Fernandez raises a separate argument concerning the sufficiency of the evidence concerning his possession of the handgun found in the truck. Specifically, Fernandez argues the evidence of his intoxication "strongly suggests appellant was of such a mental state that he would not have known of the existence of any weapon in the vehicle." We do not agree.
Officers Strand and Alvarez testified the location of the gun in the truck made it accessible to all occupants and Officer Strand opined that when one Norteño brought a gun into a vehicle he would notify all other Norteños of that act. This evidence was sufficient to support a finding Fernandez had possession of the firearm. (People v. Peña (1999) 74 Cal.App.4th 1078, 1083-1084 (Peña), citations omitted ["A defendant possesses a weapon when it is under his dominion and control. A defendant has actual possession when the weapon is in his immediate possession or control. . . . He has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others."].) While it is true there was evidence of Fernandez's intoxication, there was also evidence suggesting he was not so intoxicated as to be unaware of his surroundings. As an example, Officer Alvarez explained under cross-examination that while Fernandez had slurred speech, an unsteady gait, and red and watery eyes, he was not "falling over drunk."
Although Fernandez argues the only evidence admitted showed he was drunk to the point he could not possess the firearm, the evidence is not so one-sided as to permit only one inference in this instance. " 'If the circumstances reasonably justify the [trial court's] findings,' the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact." (People v. Baker (2005) 126 Cal.App.4th 463, 469.)
Nor does People v. Sifuentes (2011) 195 Cal.App.4th 1410 (Sifuentes), compel a different conclusion. Fernandez analogizes his situation to that of Sifuentes, arguing his mere proximity to the firearm is insufficient to show he possessed it. We do not agree that Sifuentes is controlling.
In Sifuentes, police found convicted felons Sifuentes and Lopez in a motel room. Sifuentes was lying on top of the bed nearest the door, while Lopez was kneeling on the floor on the far side of the second bed, attempting to hide a gun under the mattress. (Sifuentes, supra, 195 Cal.App.4th at pp. 1413-1414.) At trial, a gang expert offered testimony supporting the theory that Sifuentes constructively possessed the gun. He testified Sifuentes and Lopez were active participants in a particular criminal street gang, that guns play a prominent role in the gang subculture, that a "gang gun" is a gun passed freely among gang members for use in their criminal endeavors, that, aside from certain restrictions, a "gang gun" is accessible to all gang members at most times, and that a gang member possessing a gun will inform other gang members that he has a firearm. (Id. at pp. 1414-1416.) On appeal, the court found this testimony insufficient, concluding: "The prosecutor failed to elicit from the expert any substantial evidence Sifuentes had the right to control the firearm. The expert did not testify all gang members had the right to control communal gang guns, assuming this firearm fell into that category. Rather, . . . he testified certain restrictions applied concerning 'access' to a gang gun and did not explain these restrictions or whether he equated access with a right to control. Nor did the expert link Sifuentes to the particular firearm found next to Lopez." (Id. at p. 1419, fn. omitted.)
The present case lacks any of the objective facts present in Sifuentes that required proof a gang gun was used or being shared among gang members. There was no indication the firearm in this case was exclusively possessed by one of the gang members or evidence the gun was not immediately accessible to Fernandez. Rather, the weapon was found in a location equally accessible to all in the car and therefore in their immediate joint dominion and control. (See Peña, supra, 74 Cal.App.4th at pp. 1084-1085 [actual personal possession does not require the weapon be carried on the defendant's person provided it is immediately accessible]; People v. Rushing (1989) 209 Cal.App.3d 618, 622 ["A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others."].) This fact was coupled with expert testimony that all members of the gang would be aware of the gun's presence and that guns were a tool used by gang members. Given the jury was free to reject Martinez's testimony he had found the gun and told no one of it, the contrary evidence offered by the People was sufficient to demonstrate Fernandez possessed the gun. Accordingly, we reject Fernandez's assertion the evidence was insufficient to demonstrate possession of the firearm. Fernandez's Romero Motion
Appellant Fernandez also contends the trial court abused its discretion when it declined to strike his prior conviction for assault with a deadly weapon for sentencing purposes under People v. Superior Court (Romero) (1994) 13 Cal.4th 497. Fernandez argues his intervening convictions were for minor offenses, his culpability in this case was not egregious, and the trial court would have been required to assess a lengthy sentence even if it had struck his prior conviction.
In Romero, the California Supreme Court held that trial courts have discretion to dismiss or strike allegations of prior felony convictions. (Romero, supra, 13 Cal.4th at pp. 529-530.) "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to . . . section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
The analysis whether an offender may be deemed outside the spirit of the law is a stringent one. (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) In addition, there is a strong presumption that any sentence that conforms to the Three Strikes law's sentencing scheme is rational and proper. (Id. at p. 378.) "Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Ibid.)
We review the trial court's decision for an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 375.) An abuse of discretion is not shown merely because reasonable people might disagree about whether to strike a prior conviction. Where the record is silent, or where it " 'demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.' " (Id. at p. 378.)
Although the evidence presented regarding Fernandez's criminal history could support a decision to strike his prior conviction for sentencing purposes, it is equally, if not more, capable of supporting the denial of such a request. Fernandez's prior convictions involved gang ties, as did his intervening conduct, and his current conviction. His pattern of criminal gang activity does not show a period of law-abiding conduct. Rather, this history shows this is not one of those extraordinary cases that demonstrate appellant is outside of the spirit of the Three Strikes law. (People v. Philpot (2004) 122 Cal.App.4th 893, 907.) We therefore find no abuse of discretion in the trial court's decision not to strike Fernandez's prior offense for sentencing purposes.
DISPOSITION
The judgment is affirmed.
/s/_________
BLACK, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
PEÑA, J.
Judge of the Superior Court of Fresno County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------