Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 04CF2324, Susanne S. Shaw, Judge.
John Ward, 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, Peter Quon, Jr. and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted Hector Tenorio of two counts of assaulting a peace officer with a semiautomatic firearm (Pen. Code, § 245, subd. (d)(2)), one count of possession for sale of methamphetamine (Health & Saf. Code, § 11378), one count of possession of heroin (Health & Saf. Code, § 11350), and one count of street terrorism (§ 186.22). In addition, the jury found true the allegations defendant personally used and discharged a firearm during both assaults (§ 12022.53, subds. (b), (c)), and committed the assaults and possessed methamphetamine for sale for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In a bifurcated trial, defendant admitted a prior conviction for grand theft of an automobile.
All statutory references are to the Penal Code unless otherwise stated.
The second amended information charged defendant with possession of heroin for sale, but after the People closed their case, the judge reduced the charge to simple possession of heroin.
The court sentenced defendant to a total prison term of 32 years and four months as follows: The low term of five years on count 1 (assault on first officer); a consecutive term of two years and four months (1/3 mid term) on count 2 (assault on second officer); a consecutive term of 20 years on the personal discharge of a gun enhancement attached to count 1; and a consecutive five-year term for the gang enhancement attached to count 1. On count 3, possession of heroin, and count 4, possession for sale of methamphetamine, the court imposed the low term of 16 months on each count, to be served concurrently. And on the street terrorism charge, defendant was sentenced to a concurrent term of one year in county jail. The five-year gang enhancement related to count 4 was imposed, to be served concurrently with count 1. The gun enhancements for use of a gun on counts 1 and 2 were stayed pursuant to section 654, and the gang enhancement attached to count 2 was stricken for purposes of sentencing. Defendant was given 454 days of presentence credit; 395 days of actual custody and 59 days for conduct.
On appeal defendant contends his presentence credits must be adjusted and there was insufficient evidence he (1) committed crimes for the benefit of a criminal street gang and (2) possessed heroin and methamphetamine. We agree the trial court incorrectly calculated defendant’s presentence credits. We also agree the evidence was insufficient to prove the gang enhancements. We disagree, however, with defendant’s challenge to his convictions for possession of heroin and possession for sale of methamphetamine, as they are supported by substantial evidence. Accordingly, we strike the five-year terms for the consecutive gang enhancement related to count 1 and the concurrent gang enhancement related to count 4, and modify defendant’s presentence credits. In all other respects we affirm the judgment, but remand for resentencing.
FACTS
On the evening of August 1, 2004, police officers Jose Gonzalez and Richard Markstadt responded to a report of “an unknown disturbance” involving some “individuals arguing” in an upstairs apartment in Santa Ana. Gonzalez knocked on the apartment door. A man opened it and identified himself as the apartment owner. The owner stated he was arguing with his roommates “because they had a bunch of people over and he didn’t want them in his apartment.” Inside the studio apartment were six people. Besides the owner, there were three people sitting on a couch closest to the door, another man sitting on the other side of the room, and a woman in the kitchen area.
Gonzalez “immediately focused” on defendant who was seated on the couch closest to the front door and whom Gonzalez recognized from prior contacts. Gonzalez knew defendant had an outstanding warrant for his arrest. Defendant “was shirtless” and had the word “PERROS” tattooed “across his chest”; “perros” means dogs in Spanish. Defendant “appeared to be tucking something on his left side” and “to be acting nervous [and] fidgety.” He looked out the front door at Gonzalez “and then looked out the patio door that was to his left.” He “leaned forward and appeared to be tucking something behind him” and “used a white towel to cover something to his right side.”
After receiving the owner’s permission to enter, Gonzalez “immediately walked up to [defendant] on the couch and grabbed his right arm.” Gonzalez said, “Hector, you are under arrest, put your left hand behind your back.” Defendant “initially tried to convince [Gonzalez he] had the wrong individual.” Defendant tried to “knock” Gonzalez’s arm away and whispered in Spanish to the person seated to his left, “Get the gun, get the gun,” while “motioning down towards his left pocket area.” Gonzalez alerted his partner, Marckstadt, that defendant had a gun. Marckstadt “grabbed at [defendant’s] neck.” Defendant ignored the officers’ commands “to stop resisting [and] that he was under arrest” and moved his left hand “down towards his left front shorts pocket.” Marckstadt reached for defendant’s left arm. Gonzalez, aware that he and his partner were outnumbered two to six and “to minimize the threat of people jumping on [his own] back,” “grabbed” defendant and “pulled him off the couch towards the front door.” Defendant continued resisting.
Defendant managed to pull a semiautomatic handgun from his pants pocket. Markstadt “held onto [defendant’s] hands,” but defendant was able “to point the gun forward and at one point it was pointing at [Gonzalez].” Defendant pointed it at Marckstadt and slid it under his body. Gonzalez lost sight of the gun and seconds later, heard a single gunshot. The two officers confirmed to each other they had not been shot. Defendant said in English, “I’m hit, I’m hit, my hand,” but continued to fight and to try to bring his hands together; therefore Gonzalez alerted Markstadt not to release defendant’s hand. In fact, defendant had not been shot.
Defendant’s gun was on the ground. He “kicked the gun towards the couch where his other friends were sitting,” saying, “Help me, help me, get the gun.” Gonzalez announced “that if anyone moved,” they would “get shot.” The “other people in the apartment complied with” Gonzalez’s order not to move. The officers began punching defendant.
Defendant reached back toward Markstadt and tried to “grab at [Markstadt’s] gun belt.” Defendant then started reaching toward Gonzalez’s holster and tried to get Gonzalez’s gun. Markstadt yelled at Gonzalez, “Watch your gun, he’s going for your gun.” Gonzalez “felt a tugging down on [his] holster.” Gonzalez “knocked off [defendant’s] arm,” discerned that his “holster strap had been disengaged,” and “locked it into place.”
Defendant continued to fight, “inching toward the front door” and “trying to . . . escape.” Gonzalez grabbed his microphone “and told dispatch [the officers] were involved in a gunshot.” Finally, defendant “ran out of gas” and “collapsed onto his belly” “at the threshold of the door.” Still defendant struggled. The officers handcuffed both his hands. Markstadt ran to defendant’s gun and picked it up. Defendant “curl[ed] his legs under him and [started] lunging forward again,” as though “trying to squirm his way out of the doorway.” Gonzalez gave defendant a knee strike and used his (Gonzalez’s) “entire weight” to hold defendant down.
The struggle had lasted approximately seven minutes. Defendant had been difficult to control because he was “sweaty” (and therefore “slippery”), “extremely agitated,” and strong. Backup officers arrived and defendant was “placed in custody and removed from the scene.”
A backup officer found “a black pencil pouch . . . pushed into the seat cushions behind where [defendant had been] sitting.” Inside the pouch were a clear baggie containing 26.34 grams of methamphetamine, a clear baggie holding 0.7 grams of heroin, and an electronic personal organizer. An empty black pouch was discovered next to the pencil case. A pager “was also in the couch area tucked under where [defendant had been] sitting.” The pager “was actively going off while [the police] were at the scene.” A black backpack “was on the floor leaned up against the couch between where” defendant and another person had been sitting. Inside the backpack were “some video surveillance equipment, two methamphetamine smoking pipes, [a] cell phone [and a] charger.” A white towel was on the couch.
Gonzalez found a mutilated bullet casing on the floor between the couch where defendant had been sitting and the front door. A police examination of defendant’s gun revealed its magazine was loaded and there was an expended bullet stuck in the barrel.
DISCUSSION
Defendant challenges the sufficiency of the evidence supporting the convictions for possession of heroin and possession for sale of methamphetamine, and the sufficiency of the evidence supporting the five-year gang enhancement relating to count 1. To determine whether the evidence is sufficient, we “review ‘the whole record in the light most favorable to the judgment’ and decide ‘whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] Under this standard, the court does not ‘“ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Hatch (2000) 22 Cal.4th 260, 272.) Further, “[t]his standard applies to a claim of insufficiency of the evidence to support a gang enhancement.” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Substantial Evidence Supports Defendant’s Convictions for Possession of the Illegal Substances
As to the drug offenses, defendant contends there was insufficient evidence he exercised dominion and control over the drugs and therefore his convictions for possession of methamphetamine and heroin must be reversed.
Officer Gonzalez, who had substantial experience and training in the area of possession for sale of narcotics, opined both the heroin and the methamphetamine were possessed for sale. He based his opinion on the quantity of each substance, the pager “actively going off . . . at the scene,” defendant’s efforts “to discard the items upon seeing [the police]”; and defendant’s possession of a gun. He testified “narcotics can be possessed at the same time by” individuals acting “as a team.” Although the amount of heroin was significantly smaller than the amount of methamphetamine, Gonzalez opined both substances were possessed for sale because of the large amount of methamphetamine. He testified the methamphetamine and heroin discovered in the couch were “usable” quantities.
As discussed above, the court reduced the heroin charge to simple possession.
“The essential elements of possession of a controlled substance are ‘dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially’” (People v. Palaschak (1995) 9 Cal.4th 1236, 1242), and by “any reasonable inferences drawn” from the evidence. (People v. Estrada (1965) 234 Cal.App.2d 136, 155.) “‘The narcotics need not be found on the person of the defendant; it is sufficient if they are deposited in a place under the possession and control of the accused. Exclusive possession of the premises is not necessary nor is physical possession of the drug of the essence.’” (Ibid.) “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.” (People v. Rushing (1989) 209 Cal.App.3d 618, 622.)
But simply having access to a place, “without more, will not support a finding of unlawful possession.” (People v. Redrick (1961) 55 Cal.2d 282, 285.) “[N]o sharp line can be drawn to distinguish the congeries of facts which will and that which will not constitute sufficient evidence of a defendant’s knowledge of the presence of a narcotic in a place to which he had access, but not exclusive access, and over which he had some control, but not exclusive control.” (Id. at p. 287.) A “showing of consciousness of guilt” (Id. at pp. 287-288), together with “nonexclusive dominion, will support a finding of knowing possession.” (Id. at p. 287.)
Defendant contends the evidence was insufficient to establish he had dominion and control over the heroin and methamphetamine. He argues the other people in the apartment had access to the drugs, particularly the two people seated on the couch with him. He asserts the inference he “had anything more than access to the drugs is speculative,” noting that his movements on the couch did not necessarily show he was trying to conceal the drugs as opposed to reaching for his gun.
Contrary to defendant’s contention, substantial evidence showed he exercised dominion and control over the methamphetamine and heroin. When the officers entered the apartment, defendant was seated on the couch in the precise spot where the drugs were later found. He appeared to tuck something to his left and something behind him, and to cover something to his right with a towel. (No one else in the apartment tried to conceal any items.) Although other people may have had access to the methamphetamine and heroin, drugs can be possessed for sale by a team of people, and in any case, exclusive possession is not required to establish dominion and control. Defendant seemed nervous. He went to extraordinary efforts to try to evade arrest. Thus, the evidence was sufficient to establish his consciousness of guilt and nonexclusive dominion over the drugs. Together these evidentiary factors were sufficient to support a finding defendant knowingly possessed the drugs. (People v. Redrick, supra, 55 Cal.2d at pp. 287-288.)
On appeal defendant argues the evidence was insufficient to show he possessed methamphetamine. Thus, he does not challenge the sale component of his conviction for possession of methamphetamine.
The Gang Enhancements Must Be Reversed for Lack of Substantial Evidentiary Support
Defendant challenges the jury’s findings he assaulted Gonzalez and Markstadt and possessed methamphetamine for sale for the benefit of, at the direction of, or in association with the Dawgs criminal street gang under section 186.22, subdivision (b)(1). He asserts the evidence for the gang enhancements “came entirely from” the gang expert, and the facts do not support the expert’s opinion.
The gang expert, Corporal Ronald Castillo, testified he was “familiar with the criminal street gang in the city of Santa Ana known as the Dawgs.” On the date of defendant’s offenses at issue here (August 1, 2004), the Dawgs (also known as Dogs or Perros) had around eight to ten members and engaged in the primary activities of “auto theft, robbery, and weapons violations.” The gang’s tattoos included the word “Dawgs” and “Perros” and a picture of a dog paw. Castillo opined defendant was an active participant of the Dawgs gang on August 1, 2004, based on Castillo’s “personal contacts” with defendant, a background check on him, defendant’s three gang notices and one field interview card, and five police reports. The woman who was present in the studio apartment during the August 1, 2004 incident stated “she knew [defendant] as [a] youngster and he was a member of the Dawgs gang.” Defendant has the following tattoos: the word “PERROS” on his chest going “completely from shoulder to shoulder”; the letter “S,” a star, and the letter “A” on the back of his head (announcing he is from Santa Ana, Orange County in the symbols used in the Orange County gang subculture); and the words “Santa Ana,” “Sider” and “South” (denoting “he is a southsider and in the Hispanic gang community” south of Fresno).
Because defendant does not challenge his conviction for street terrorism, we summarize only the portions of Castillo’s testimony relevant to the gang enhancements.
The prosecutor posited the following hypothetical facts to Castillo to elicit his opinion on whether the hypothetical crimes were committed for the benefit of, in association with, or at the direction of the Dawgs criminal street gang: Police arrive at an apartment in response to a disturbance call and see six people there, including an admitted active member of the Dawgs gang with an outstanding warrant for his arrest and visible gang tattoos. The subject is seated on a couch and tries to hide something in the couch cushion beneath him. When the police try to arrest the subject, he physically fights them in front of the five other people in the room and says to those other people, “Get the gun, get the gun.” During the struggle, the subject points a .25 caliber semi-automatic handgun at both officers, “kick[s] the gun away from him on the floor,” and again says, “Get the gun, get the gun.” The subject continues “fighting with the police for several minutes.” Under the couch cushion where the subject had been seated, the police later find a pager that was receiving pages during their presence, along with about 26.7 grams of methamphetamine and 0.7 grams of heroin (both of which were possessed for sale in the opinion of a narcotics expert).
Castillo opined the crimes were committed “for the benefit of the Dawgs.” The possession of drugs for sale benefits a gang because gang members use the sale proceeds to “further their enterprise,” “buy more drugs,” and “purchase firearms illegally on the street.” Thus, the possession of drugs for sale helps “to keep [the gang] going.” The assault on the police officers benefits the gang by demonstrating to the apartment’s “five other occupants” how far the subject was “willing to go . . . to avoid police capture.” In the gang subculture, a member’s “status goes way up” and his gang gains respect when he “assault[s], kill[s] or harm[s] a police officer.”
On appeal defendant argues, as to the assaults, that “apart from [the gang expert’s] testimony, what the facts of the assault show is a suspect, who is a gang member, resisting arrest in the presence of other people.” He asserts there is “insufficient evidence to sustain Corporal Castillo’s contention that the assault on the two police officers was perpetrated in order to ‘gain respect’”; there was “no evidence . . . he bragged of the offense [or] used it to intimidate witnesses.” He notes an explanation for his irrational behavior is “simply that [he] panicked and tried to escape.” As to possession of methamphetamine for sale, defendant correctly points out Castillo “did not testify that the sale of narcotics was among the Dawgs gang’s principal activities.” As to both crimes, defendant also emphasizes he “was acting alone in this case.”
The People counter that, in addition to Castillo’s testimony, there was evidence defendant tried “to encourage others to help him escape arrest,” a “person who was in the apartment on August 1, 2004 . . . confirmed [defendant] was a member of the Dawgs,” and the assault took place “in Santa Ana — the city that was tattooed on [defendant].” The People point to Castillo’s testimony that in “the gang subculture respect basically equates to fear” and that a gang member gains respect “by committing illegal acts,” especially ones that are violent and/or beneficial to the gang.
In In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank), the Court of Appeal “emphasize[d] that crimes may not be found to be gang-related based solely upon a perpetrator’s criminal history and gang affiliations.” (Id. at p. 1195.) Instead, the “‘crime itself must have some connection with the activities of a gang.’” (Id. at p. 1199.) A connection may be established, for example, by evidence showing a defendant “was in gang territory, had gang members with him, or had [a] reason to expect to use [a weapon] in a gang-related offense.” (Ibid; see also People v. Ferraez (2003) 112 Cal.App.4th 925, 928, 931 [defendant received permission to sell drugs in the territory of a gang “on friendly terms” with his gang].) In fact, the presence of a fellow gang member, in conjunction with the defendant’s gang affiliation, can sufficiently support a gang enhancement because section 186.22, subdivision (b)(1) applies to a person who commits a felony “for the benefit of, at the direction of, or in association with any criminal street gang” and with the requisite intent. (Italics added; see also People v. Morales (2003) 112 Cal.App.4th 1176, 1198; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332.) In contrast, “the typical close case is one in which one gang member, acting alone, commits a crime.” (People v. Morales, supra, 112 Cal.App.4th at p. 1198.)
In the case before us, defendant acted alone. The prosecution presented no evidence that any other person in the apartment was a member of any gang. Although defendant did say “Help me” once and “Get the gun” several times (once whispering it and twice calling it out), no one responded to his entreaties. Thus, it cannot reasonably be inferred from his actions that anyone else in the apartment was a fellow Dawgs member. Despite evidence that the Dawgs is a Santa Ana gang, and the apartment was in Santa Ana, there was no showing the apartment was situated in Dawgs territory or whether the Dawgs even claim a territory in Santa Ana. The prosecution presented no evidence defendant bragged about the incident or tried to intimidate witnesses, so as to gain respect for himself and/or the gang. (See People v. Albarran (2007) 149 Cal.App.4th 214, 227 [“no evidence the shooters announced their presence or purpose” or “‘bragged’ about their involvement”].) There was no evidence that the Dawgs’s primary activities included the sale of drugs. We conclude the evidence was insufficient to show defendant assaulted the police officers or possessed methamphetamine for sale for the benefit of, at the direction of, or in association with the Dawgs gang.
Accordingly, the gang enhancements with respect to defendant’s convictions for possessing methamphetamine for sale and assaulting the two police officers must be reversed.
Defendant is Entitled to Two More Days of Actual Custody Credit
The trial court awarded defendant 454 days of presentence credits, comprised of 395 days actually served plus 59 days of conduct credits. The record shows (and the People concede) defendant was in actual custody for 397 days. The trial court erroneously calculated defendant’s actual custody days as starting on August 4, 2004, when in fact defendant was booked and in custody beginning on August 2, 2004. Therefore, he is entitled to 456 days of presentence credit, consisting of 397 actually served days and 59 days of conduct credits.
DISPOSITION
The criminal street gang enhancements relating to defendant’s convictions for assaulting Markstadt and Gonzalez with a handgun and possessing methamphetamine for sale are reversed and stricken. The judgment is further modified to grant defendant a total of 456 days of presentence credits, consisting of 397 days in actual custody and 59 days of conduct credits. In all other respects, the judgment is affirmed. We remand the case to the trial court for resentencing. “On remand, the trial court is entitled to reconsider its entire sentencing scheme.” (People v. Burns (1984) 158 Cal.App.3d 1178, 1184.)
WE CONCUR: SILLS, P. J., ARONSON, J.