People v. Nugent

Full title: THE PEOPLE, Plaintiff and Respondent, v. PATRICK MIKE NUGENT, JR.…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Apr 12, 2012

No. E051982 (Cal. Ct. App. Apr. 12, 2012)

Opinion

E051982 Super.Ct.No. SWF10000996

04-12-2012

THE PEOPLE, Plaintiff and Respondent, v. PATRICK MIKE NUGENT, JR., Defendant and Appellant.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.

RAMIREZ

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of Riverside County. Richard J. Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Patrick Mike Nugent, Jr., of possessing a nunchaku, billy club, and cane sword. (Pen. Code, § 12020, subd. (a)(1), counts 1-3.)¹The jury also convicted defendant of being an active gang participant (§ 186.22, subd. (a), count 4) and found that the three weapon possession counts were for the benefit of, at the direction of, or in association with, a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members (§ 186.22, subd. (b)).

1 Undesignated statutory references are to the Penal Code.

The trial court imposed midterm sentences of two years for each of the weapon possession counts, added the low term of two years for each of the gang enhancements (§ 186.22, subd. (b)), but then stayed the sentences and enhancements for counts 2 and 3 pursuant to section 654's prohibition on multiple punishment for the same act. For count 4, the trial court imposed a concurrent midterm of two years; thus, defendant was sentenced to a total prison term of four years.

Defendant contends there was insufficient evidence to support his count 4 conviction for being an active gang participant or to support any of the gang enhancements to the weapon possession counts. He also contends his count 4 conviction should have been stayed pursuant to section 654 because his intent and objectives were the same. We modify the judgment to impose the requested stay, and otherwise affirm.

BACKGROUND

On May 28, 2006, a sheriff's deputy found a side-handled baton and a set of nunchaku in defendant's shed. At the time, the deputy was not familiar with the Coors Family Skins and had not had any training to enable him to recognize paraphernalia associated with that gang. Defendant subsequently pled guilty to possessing the nunchaku.

Sometime in the latter half of 2008, another sheriff's deputy encountered two individuals who both had tattoos of the logo of the Coors brewing company; he was told that they had the tattoos because they liked the beer. The deputy accepted the statement. When he mentioned the tattoos to his colleagues back at the station they made fun of him for not recognizing the tattoos as indicating gang affiliation with the Coors Family Skins. Subsequently, the deputy learned to recognize the beer company logo as a symbol of that gang. In January 2009, the deputy encountered defendant and observed Coors tattoos on his left forearm and left upper arm; the deputy's partner filled out a gang field interview card indicating defendant had gang tattoos and was wearing gang apparel. However, the interview cards are an investigative tool and are not conclusive as to gang membership.

About 7:00 a.m. on April 20, 2010, a sheriff's investigator, and eight or nine other officers, searched defendant's residence and surrounding property. In a shed the investigator located the nunchaku, billy club, and cane sword. The nunchaku was golf club handles, attached together by metal wire that was wrapped with electric tape. The billy club was wooden and was etched with the words Coors and Skin, and a swastika. The cane sword was a bamboo walking stick with a cork top that concealed a metal spike. On display in the shed was a sheathed sword with the word Coors written near the tip of the sheath. Also in the shed was a cooler that had "Coors with the SS lightning bolts next to it," as well as "a lamp shade with the word 'Coors' and a swastika next to it" Found inside the house were a Coors Light hat and a Coors Light banner.

A gang expert testified that in most of the investigations he had conducted in which violence was used, the Coors Family Skins gang members used hands, fists, and handheld weapons rather than firearms. The kinds of weapons they used were knives, bats or some other form of billy club, brass knuckles, and sharp instruments. The kinds of weapons found in defendant's shed are similar to the types of weapons the expert had seen Coors Family Skins, as well as other gang members, employ in violent assaults. Depending upon the type of weapon, gang members write the name of their gang on their weapons so that other people recognize the gang during assaults. The gang expert testified that he could not think of any reason for keeping the weapons other than for a gang purpose: "I believe [the] most reasonable conclusion is for the gang purpose. Especially, with a gang name and the swastika etched on it."

One of defendant's tattoos was one that the gang expert had only seen on full-fledged members of the Coors Family Skins. He had once seen a Coors tattoo, using a different font, on a person who the expert was unable to determine whether they were a member. Two persons who had participated in gang assaults were characterized by the expert as associate members, because they associate with members and participate in criminal activity with members, but they do not have tattoos.

Contributing to the expert's opinion that defendant was an active member of the Coors Family Skins was the fact that he still possessed easily discardable gang paraphernalia. The expert's opinion was formed prior to defendant's preliminary hearing. Subsequently, a newspaper clipping of the Coors beer company logo was displayed on the door to defendant's jail cell and above the sink area inside defendant's cell. Falsely claiming to be a gang member is cause for violent retaliation; however, even though many members of the Coors Family Skins were in the county jail system, defendant was not assaulted or hurt in anyway. Thus, the expert felt reinforced in his opinion that defendant was a member of the gang.

The gang expert testified that not all members of the Coors Family Skins gang adopted all of the white supremacist or neo-Nazi beliefs. "It depends on the individual gang member. Some are a little more educated than the others, and some will just take whatever they want and whatever views that they want." Thus, while a doctrine known as the 88 precepts refers to being drug free, remaining employed, and being a contributing member of society, most of the Coors Family Skins members investigated by the expert do not remain clean and sober, hold down steady jobs, or participate as productive members of society. Moreover, it was possible for a Coors Family Skins member to be married to an African-American woman.

The expert did not have any information as to defendant's activity with the gang, such as how he joined, whether he paid dues or attended meetings, whether he participated in the planning or commission of crimes, or whether he had associated with any of the nine people the expert had identified as having committed crimes for the gang. Defendant's name had not come up during the expert's interviews with over 40 members of the gang, investigations of "at least a dozen" related crimes, or his review of any of the "[o]ver 20" incident reports from investigations by other law enforcement officials into Coors Family Skins gang-related crimes. Similarly, in the more than 1,500 pages of documents the expert had recovered through search warrants related to the gang, defendant's name was not mentioned. This included a roll call or roster document. However, some of the documents the expert had seized contained identifying information in the form of phone numbers or internet protocol addresses that had not been linked to any person. The expert had never spoken to anyone who had seen defendant with the weapons, and did not know if any of the weapons had been used in a crime. The expert also did not know if there were any members of the gang who knew defendant had the weapons in his shed, or if defendant had encouraged any members to commit crimes with the weapons.

Defendant's neighbor testified that he had known defendant for 10 to 11 years. He saw defendant every couple weeks, but sometimes not for a month. He had attended birthday parties for defendant's daughter, as well as barbecues at defendant's house. He never saw anyone at defendant's house that appeared to be a skinhead or gang member. Sometimes minorities were present at defendant's house for barbecues. This included the girlfriend of defendant's daughter, the father of the girlfriend, defendant's brother-in-law, defendant's nephew, and defendant's niece; defendant interacted with all of them in a friendly manner and played with his niece and nephew. Defendant's mother also testified that minorities attended barbecues at defendant's residence.

A former corrections officer testified as defendant's gang expert; he opined that defendant was not a member because his name did not appear on the roll call, and the gang would not tolerate interracial relationships.

During closing arguments the People contended that defendant's criminal participation with the gang was shown by his possession of the weapons. They also explained that, as to the active participation count, they needed to show "[e]ither he personally committed a felony offense in this case, like the possession of weapons, or he helped gang members to commit some other crime" and they were "not seeking to prove" the latter.

SUFFICIENCY OF THE EVIDENCE

Defendant contends there was insufficient evidence to support either the gang enhancement findings or the count 4 conviction for being an active gang participant.

1. Standard of Review

"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient . . . ." (People v. Young (2005) 34 Cal.4th 1149, 1181.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.) 2. Gang Enhancement

The elements of the gang enhancement are that the conviction was 1) "committed for the benefit of, at the direction of, or in association with any criminal street gang," and 2) committed "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (Pen. Code, § 186.22, subd. (b).)

Defendant contends the evidence supporting the enhancement was insufficient because the jury could not draw a reasonable inference that he possessed the weapons for the benefit of a gang. We disagree.

Defendant had a tattoo only seen on full members of the gang, possessed gang paraphernalia, displayed affiliation with the gang while in jail, and was convicted of possessing illegal weapons of the kind used by the gang in its assaults. One of the three convictions was for a weapon inscribed with the name of the gang. Thus, the jury could reasonably infer that defendant was a full member of the gang and, as such, he possessed the weapons to benefit the gang by having them available for his or other members use in the gang's assaults or other criminal activity.

3. Active Gang Participant

The elements of the offense of being an active gang participant "are (1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. [Citation.] All three elements can be satisfied without proof the felonious criminal conduct promoted, furthered, or assisted was gang related." (People v. Albillar, supra, 51 Cal.4th at p. 56.)

Defendant contends the jury could not draw reasonable inferences that he: 1) was an active gang participant; 2) knew about the gang's criminal activity; or 3) willfully promoted, furthered, or assisted in any felonious criminal conduct of members of the gang. Again, we disagree.

Defendant had a tattoo only seen on full members of the gang, and mere associates of the gang had been involved in the gang's assaults. In addition to gang paraphernalia, defendant possessed weapons of the kind used by the gang in its assaults; one of the weapons was inscribed with the name of the gang. The paraphernalia and weapons were easily discardable and possession of a similar weapon had been the basis for defendant's 2006 conviction. Because defendant had a tattoo only seen on members of the gang, and not associates, and still possessed discardable paraphernalia and illegal weapons, the jury could reasonably infer that defendant was a full and active member, more than nominally or passively involved in the gang, and aware of the gang's pattern of criminal activity. The jury could infer that defendant possessed the weapons for use in the gang's assaults, because the weapons were of the kind used by the gang in its assaults and defendant possessed these discardable weapons even after having been previously convicted for possessing similar illegal weapons.

4. Speculation or Inference Based on Circumstantial Evidence

We reject defendant's contention that the jury's enhancement findings and active gang participant conviction were based upon speculation rather than inferences. Defendant's argument fails to appreciate the difference between circumstantial evidence and speculation. (See People v. Story (2009) 45 Cal.4th 1282, 1296-1299 [reversing the Court of Appeal's reversal for lack of substantial evidence and discussing speculation and circumstantial evidence].) While much of the evidence against defendant was circumstantial, the jury remained entitled to draw reasonable inferences from that evidence.

SECTION 654

Defendant contends the sentence for his active gang participation (count 4) should have been stayed pursuant to section 654's prohibition on multiple punishment for the same act. We agree, but address the issue summarily because the issue is pending before our Supreme Court. (People v. Mesa (2010) 186 Cal.App.4th 773, review granted Oct. 27, 2010, S185688.)

"The prosecutor argued to the jury that one element of the former offense, i.e., that defendant willfully assisted, furthered or promoted felonious criminal conduct by members of the gang, was proven by defendant's [possession of illegal weapons]. There was no evidence introduced that defendant participated in any other felonious conduct by members of [the gang]. [¶] In People v. Sanchez (2009) 179 Cal.App.4th 1297 (Fourth Dist., Div. Two) the defendant was convicted of active participation in a gang and two counts of robbery, but the jury found not true allegations that the robberies had been committed to benefit a gang. [Citation.] This court held that section 654 precluded multiple punishment for both active participation in a gang, an element of which requires that the defendant actually commit or aid and abet felonious criminal conduct by members of the gang, and the underlying felony that is used to satisfy this element of gang participation. [Citation.] Here, we have the added fact that defendant [possessed the weapons] to benefit [the gang] and he was separately punished for that. This is even more reason for us to adhere to the holding in Sanchez. It vitiates the People's argument that Sanchez 'announced a rule of law which effectively obliterates the legislative intent behind enacting a statute to punish active participants of a . . . gang.' " (People v. Hunt (2011) 196 Cal.App.4th 811, 824, fn. omitted [Fourth Dist., Div. Two].)

Accordingly, we shall modify the judgment to stay defendant's concurrent sentence for being an active gang participant.

DISPOSITION

The judgment is modified to stay, pursuant to section 654, the concurrent sentence on defendant's count 4 conviction of being an active gang participant. The superior court clerk is directed to prepare a new minute order and an amended abstract of judgment reflecting the modification. The superior court clerk is then directed to forward certified copies of the new minute order and amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

RICHLI

J.