Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge., Super. Ct. No. 07CF3325
Patrick J. Hennessey, Jr. under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
A jury convicted Cesar Arturo Medina of being a felon in possession of a gun (Pen. Code, § 12021, subd. (a)(1); count 1), carrying a concealed firearm while being an active participant in the Los Locotes criminal street gang (§ 12025, subds. (a)(2), (b)(3); count 2), both of which were determined to be gang-related crimes (§ 186.22, subd. (b)(1)), and street terrorism (§ 186.22, subd. (a); count 4). Following the trial, Medina admitted serving two prior prison terms (§ 667.5, subd. (b)). The court sentenced him to a total determinate term of six years.
All future statutory references are to the California Penal Code unless otherwise noted.
Count three, which alleged Medina trespassed onto private property without permission (§ 602.5, subd. (a)), was dismissed on the prosecutor’s motion.
On appeal, Medina seeks to reverse the convictions on counts 1 and 2, and their related gang enhancement findings, on grounds of insufficiency of the evidence. We conclude substantial evidence supports the verdict and therefore affirm the judgment.
I
FACTS
On October 3, 2007, Santa Ana Police Department Detective Oscar Lizardi and his partner, Detective John Rodriquez, were on routine foot patrol in the high crime area of Evergreen Street in Santa Ana when they saw what appeared to be narcotics activity or crimes emanating from a catering truck parked on the street. Medina, another man named, Hinojosa, and four other young, Hispanic men were loitering around the truck. The men were dressed in baggy clothing and white T-shirts, and they were sporting shaved heads. Based on Lizardi’s experience with Hispanic gang members, he believed the six young men were members of a criminal street gang. Evergreen Street is in the heart of Los Locotes’s claimed territory.
When Medina and Hinojosa saw the officers, they immediately began walking westbound on Evergreen and away from the officers. Lizardi ordered them to stop several times, but they continued to walk away from him and toward an apartment complex. Eventually, Medina and Hinojosa walked into an open apartment door at 1702 Evergreen Street.
First, Medina and then Hinojosa entered the apartment. After they walked inside, Josefina Navarrete, came outside. She appeared frightened, and she told the officers she did not know the two young men who had just entered her apartment. She also said that her four-year-old grandson was inside the apartment and in the kitchen, and she asked if the officers would go into the apartment and bring him outside.
At trial, Navarette testified that she had known Medina since he was a child and that he had standing permission to enter her home.
Lizardi looked inside the apartment and saw Medina walking up the stairs to the apartment’s second story. When Lizardi and Rodriguez entered the two-story apartment, Medina walked back down the stairs. Lizardi estimated that Medina was upstairs for approximately 20 seconds. He asked Medina if he lived at the apartment, and Medina said that he did not. Lizardi asked for and received permission to search Medina, but did not find anything.
Navarrete authorized a search of her apartment. Several officers went inside. They found a loaded semiautomatic handgun under a mattress in an upstairs bedroom. Navarette’s daughter-in-law, Gloria Calderon, and her son slept in this bedroom. Navarrete and Calderon denied having ever seen the gun before.
Navarette’s son, Antonio Calderon, had recently been deported. He had two tattoos, both said “Lost Locotes,” and he used the moniker, “Sparkey.” Another son, Alejandro, used the moniker “Froggy” and was a member of Los Locotes.
Medina was arrested for gun possession. The gun was swabbed for DNA analysis, and a sample was obtained from Medina. A DNA analyst testified that there were at least three DNA profiles in the material taken from the gun, and that Medina could not be excluded as a contributor. Furthermore, the analyst testified that only one person in a thousand would have similar DNA.
During the booking process, Medina told Lizardi he grew up on Evergreen Street and that he “kicks back” with Los Locotes and had done so for four years. Medina also admitted that he had been documented as a Los Locotes gang member in the past, and that he grew up on Evergreen Street.
At trial, the prosecution’s gang expert, Officer Roland Andrade, testified that Los Locotes, which loosely translated means “The Crazy Ones,” is a typical Hispanic criminal street gang that claims Evergreen Street as part of its territory. As of October 3, 2007, the gang had approximately 10 members, although the number of members changes over time. The gang’s primary rival is the Delhi Street Gang, whose members claim an area approximately 100 to 150 yards from where the lunch truck was parked. This close proximity between the two rival gangs made for frequent contact between them.
Andrade testified that he had personally investigated narcotics crimes committed by Los Locotes members, and that the primary activities of the gang were felony vandalism and narcotics trafficking. He had contacted Medina before this arrest. In fact, between 2002 and 2007, Medina had been contacted by law enforcement approximately seven times and given “Step Act” notices on each occasion. Medina was usually found on Evergreen Street and he was frequently in the company of other Los Locotes gang members. One of these contacts resulted in Medina’s arrest for narcotics possession with intent to sale, although this sale took place outside Los Locotes’ claimed territory and while he was with a girl. Plus, Medina has several tattoos worn by traditional Hispanic street gang members.
Andrade explained that the term “kicking back” means someone is associating or affiliating with the gang. Generally, someone is either “walked in” or “crimed in” to establish gang membership. Gang members show their allegiance to a gang by getting gang-related tattoos or by writing gang-related graffiti. They also “back up” each other by assisting other members during confrontations with the police or rival gangs.
Guns are important to the gang because the use of guns gains respect for the gang, makes sure their criminal enterprises proceed without interference, and for defensive use by individual members. Guns also play an essential role in invoking fear in the community and in rival gangs, and they are seen as a symbol of power in gang culture, which helps individual gang members gain stature within the gang. Guns also help protect gang members from rival gangs who are competing for narcotics customers and ensure the gang will be able to defend its territory from rival gang members. A “gang gun” is one used by the gang, and Andrade testified that where one member of the gang is armed when contacted by the police, the group will disperse and give the gun possessor a chance to hide or dispose of the gun.
Andrade noted that tensions between Los Locotes and Delhi were on the rise at the time Medina was arrested. He explained that it would be important for a Los Locotes member to be armed to defend their territory and activities. The lunch truck parked on Evergreen Street created a “hot spot” for criminal activity, primarily narcotic sales, and Andrade testified that there had been over 30 drug dealers arrested in the area. In fact, the area was “considered a drive-through market typically for narcotic sales as well as gang-related graffiti, shooting, assaults, robberies, [and] vandalism.” In addition, some gang members are simply “posted” in the area as a way of occupying the gang’s claimed territory.
In Andrade’s opinion, gang members will know which individual is carrying the gang gun because gang guns are owned by the gang collectively and not by any one individual member. Andrade testified that he learned about gang guns from conversations with gang members, including conversations with members of Los Locotes. In Andrade’s expert opinion, Medina was carrying a gang gun on October 3, 2007 and Navarrette’s apartment was a “gang safe house.” At the time of Medina’s arrest, several Los Locotes gang members were being released from prison and returning to the community to continue their “street-level dope dealing.” Under the circumstances, it would have been important for a Los Locotes gang member to be armed in the area around the catering truck.
The prosecution submitted evidence of a predicate crime committed by Alejandro Navarrette Mendoza, a self-admitted Los Locotes member. Andrade had arrested Mendoza for violations of section 496, receiving stolen property, and Health and Safety Code section 11370.1, possession of a controlled substance for sale. Apparently, Mendoza was selling drugs near the catering truck. There was also evidence introduced that another Los Locotes gang member, Rafael Ochoa, had been arrested in an incident involving narcotics packaged for sale and gun possession. The parties stipulated to Medina’s prior felony conviction.
II
DISCUSSION
Medina challenges the sufficiency of the evidence to support the jury’s finding that he possessed a firearm for the benefit of Los Locotes. He contends, “[u]nfortunately for the People, the cross[-]examination of Andrade uncovered glaring and fatal deficiencies in his testimony, deficiencies that render his ‘expert opinions’ speculative and not based on any discernable factual foundation.” We disagree.
The standard of review for gang findings, as with convictions, is substantial evidence. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) Section 186.22, subdivision (b)(1)(A) provides that a person who commits a felony “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, shall, upon conviction of that felony... be punished by an additional term of two three, or four years at the court’s discretion.”
Andrade, testified that “kicking back” is a term used by Hispanic gang members to signify their alliance with a gang. Andrade also testified that Medina had several tattoos that are adorned by traditional Hispanic street gangs. Andrade also testified that possession of a firearm by a gang member helps enhance gang status. Andrade commented that gang members will brandish firearms to instill fear in the community, and that they carry gang guns to “back up,” or defend, other members of the gang. Andrade commented that tensions between Delhi, a neighboring gang, and Los Locotes were on the rise when Medina was arrested. When officers spotted Medina he was standing in the heart of Los Locotes territory, in a known narcotics marketplace. Medina’s presence with the gun helped ensure the safety of Los Locotes members and safeguarded the gang’s narcotics activity. We find Medina was an active participant of the gang. Therefore, based on the facts adduced at trial, including the testimony of the gang expert, substantial evidence supports the jury’s finding.
To the extent Medina argues the evidence was insufficient to find he possessed a firearm, we disagree. Section 12021, subdivision (a)(1) states: “Any person who has been convicted of a felony under the laws of the... the State of California... and who... has in his or her possession... any firearm is guilty of a felony.” Here, Medina fled from officers to the apartment of Josefina Navarrete. With Josefina Navarrette’s permission, the officers searched her apartment and found a loaded semi-automatic handgun in an upstairs bedroom. Officers asked Navarrete and the individual who lived in the upstairs bedroom, Gloria Calderon, if they had seen the gun before. Neither individual recognized the gun. DNA testing was performed on the gun and Medina could not be excluded as a contributor, and a DNA analyst testified that only one other person in a thousand could not be excluded as a contributor to the DNA on the handgrip of the gun. Furthermore, the parties stipulated to Medina’s prior felony conviction in California.
Medina also contends there was insufficient evidence he carried a concealed firearm while an active participant in a criminal street gang as defined in section 12025, subdivisions (a)(2) and (b)(3). Under section 12025, subdivisions (a)(2) and (b)(3) a person is guilty of a felony if they are carrying a concealed firearm on their person while they are an active participant in a criminal street gang, as defined in section 186.22, subdivision (a). Section 186.22, subdivision (a) states: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment...”
First, Medina claims, “[w]hile the evidence may suggest he possessed the weapon at some point and may have been responsible for placing it underneath the mattress, this evidence does not establish its concealment on [his] person.” While true, this fact is not dispositive. Circumstantial evidence established that when contacted by police officers, Medina and Hinojosa walked away and would not respond the officers’ commands to stop. Medina entered an apartment, went upstairs, and then came down within minutes. A gun was found in one of two upstairs bedrooms, and the rightful occupants of the apartment claimed they had no connection to the gun. A reasonable inference is that Medina had the gun while he was loitering around the lunch truck, and that he concealed the gun and took it into the apartment when law enforcement appeared at the scene.
Second, Medina argues there is no evidence he is an active participant in Los Locotes. To prove that a defendant “actively participates” in a gang “it [is] sufficient if the evidence establishes that the defendant’s involvement with the gang is more than nominal or passive.” (People v. Castenada (2000) 23 Cal.4th 743, 745.) Medina admitted to “kicking back” with Los Locotes and was contacted with Los Locotes members on several occasions prior to October 3, 2007. He has numerous gang-related tattoos, something Andrade testified demonstrates loyalty and allegiance to the gang. Furthermore, Medina possessed a gun in gang territory. A reasonable inference, based on Andrade’s testimony concerning gang culture and habits, is that the Los Locotes gang would not likely permit anyone who is not a gang member to possess a gun in the heart of its claimed territory and near a vehicle used to traffic drugs. Therefore, the evidence is sufficient to demonstrate Medina’s active participation in the gang.
We also reject Medina’s contention that the prosecution failed to establish Los Locotes’ pattern of criminal gang activity, or that Medina was aware of these activities. A pattern of criminal gang activity “means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more” of certain statutorily enumerated offenses provided, “at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons[.]” (Section 186.22, subd. (e).) Here, the prosecution offered evidence that Alejandro Navarrete Mendoza, a Los Locotes member, was arrested for possession of narcotics with intent to sell in 2007. The prosecutor used Medina’s gun possession charge as the second offense to satisfy the statutory requirements for finding a pattern of criminal gang activity. The court’s instruction to the jury identified possession of narcotics and possession of a firearm by a felon as the crimes that established a pattern of criminal gang activity, and told the jury that it could consider the charged crime, “in deciding whether one of the group’s primary activities was the commission of that crime and whether a pattern of criminal gang activity has been proved.”
Medina’s reliance on In re Alexander L. (1997) 149 Cal.App.4th 605, is misplaced. In that case, the expert witness never stated what the primary activities of the Varrio Viejo gang was at the time the defendant committed his own crime. When asked about the gang’s primary activities, the expert testified, “‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’” (Id. at p. 611.) No further questions were asked of the expert about the gang’s primary activities. (Ibid.) Here, Andrade gave specific testimony concerning a prior conviction involving an admitted Los Locotes gang member.
As for Medina’s knowledge of Los Locotes activities, we note that Medina was made aware of the gang’s activities in the STEP Act notices he received prior to October 3, 2007. Furthermore, there was substantial evidence to find Medina willfully assisted the gang’s felonious criminal conduct when he carried a concealed firearm in a known narcotics marketplace in the heart of Los Locotes territory.
Finally Medina contends there was insufficient evidence to find this count was committed for the benefit of a criminal street gang as defined in section 186.22, subdivision (b)(1). For the reasons previously discussed, we conclude otherwise. Here, substantial evidence supports a finding that Medina carried the firearm with the specific intent to assist members of Los Locotes in criminal gang activity. Therefore, the evidence is sufficient to support his conviction for possession of a firearm by a felon and possession of a concealed firearm by an active member of a criminal street gang, and substantial evidence that both of these crimes were committed for the benefit of a criminal street gang as defined in section 186.22, subdivision (b) (1).
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J., ARONSON, J.