Opinion
G038822
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. JOSE AYALA, Defendant and Appellant.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
The Charges
Defendant Jose Ayala was charged by information by which the People alleged defendant committed the offenses of possession of ammunition by a prohibited person (Pen. Code, § 12316, subd. (b)(1)) (count 1), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) (count 2), street terrorism (§ 186.22, subd. (a)) (count 3), gang related battery of a police officer (§§ 186.22, subd. (d), 243, subd. (b)) (count 4), and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364) (count 5). The People further alleged defendant committed the offense charged in count 1 for the benefit of, at the direction of, and in association with the Orange Varrio Cypress (OVC) criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by members of that gang (§ 186.22, subd. (b)). Prior convictions were also alleged: Defendant had suffered convictions for (1) unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), (2) street terrorism (§ 186.22, subd. (a)), and (3) possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). The prior convictions for vehicle theft and street terrorism priors were both alleged as strikes (§§ 667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)), and the prior street terrorism conviction was also alleged as a sentencing enhancement under section 667, subdivision (a)(1). As to both of the prior convictions for possession of a controlled substance and vehicle theft, sentencing enhancements were alleged under section 667.5, subdivision (b) for serving two separate prison terms of one year or more and not remaining free of both custody and the commission of a felony offense for five years.
All further statutory references are to the Penal Code unless otherwise stated.
The Trials
The charges against defendant resulted in two trials. In the first trial, the jury found defendant guilty of the offense charged in count 2, possession of methamphetamine. The jury also found true the allegations he had previously been convicted of the unlawful taking of a vehicle and street terrorism, and that he had, on two occasions, served a prison term and had not remained free of both prison custody and the commission of a felony for five years. The jury acquitted defendant of the offense charged in count 4, battery on a peace officer. But the jury was unable to reach a decision on the charges of possession of ammunition by a prohibited person, street terrorism, and possession of controlled substance paraphernalia. As to these counts, the court declared a mistrial. The court imposed sentence on defendants convictions, and we affirmed the judgment in an unpublished opinion. (People v. Ayala (Dec. 18, 2007, G037550) [nonpub. opn.].)
On retrial of the mistried counts, the jury convicted defendant of possession of ammunition by a prohibited person, street terrorism, and possession of controlled substance paraphernalia. The jury also found true the gang allegation attached to the possession of ammunition count.
The Sentence
The court vacated the sentence previously imposed and struck one prior strike conviction pursuant to section 1385. The court then sentenced defendant to a total state prison term of 10 years, calculated as follows: Double the midterm of two years (four years) on the possession of ammunition count, five years for a section 667, subdivision (a)(1) prior conviction, and one year for a prior prison term under section 667.5, subdivision (b). The court imposed a term of three years on the gang enhancement, but struck the punishment. On the methamphetamine conviction from the first trial, defendant was sentenced to double the midterm of two years (four years), to be served concurrently with the sentence on the ammunition count. And on the street terrorism conviction, defendant was also sentenced to double the midterm of two years (four years), to be served concurrently with the sentence on the ammunition count. On the possession of drug paraphernalia count, defendant was sentenced to one day in the Orange County jail, and that sentence was deemed served. Finally, on the second prior prison term enhancement, the court imposed a one year term but struck the punishment. Defendant was given credit for time served for 715 days, consisting of 477 actual days and custody and conduct credits of 238 days.
The Appeal
Defendant timely appealed, and we appointed counsel to represent him on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against defendant, but advised the court no issues were found to argue on his behalf. Defendant was given 30 days to file written argument in his own behalf. That period has passed, and we have received no communication from defendant.
We have examined the record and have not found an arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.
FACTS
We recite here only those facts relevant to the convictions resulting from the second trial, and do so in the light most favorable to the judgment. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
In February 2006, Rudolph Fite was working on a computer near the front of his garage located behind an apartment complex and facing an alley. He observed two men walking down the alley. As the men walked past Fite, they started to run. Fites suspicion was aroused and he called the police.
Officers McCafferty and Ramirez responded in separate cars. When they arrived at the scene, they spotted two young men on the sidewalk in front of the apartment complex. One of the men was carrying a dark bag. McCafferty testified both men ran when the officers approached. Ramirez had a different recollection, testifying that the man later identified as defendant did not run and she never lost sight of him. McCafferty drove around to the alley, while Ramirez stayed in front of the apartment complex.
When McCafferty came to a stop in the alley, he saw Fite pointing in the direction of some parking stalls. McCafferty saw two men near a Dumpster. The two men ran in opposite directions. McCafferty recognized one of the men to be Michael Cooper, known to McCafferty as a member of the OVC gang. Fite told McCafferty that the other man, later identified as defendant, had thrown a black bag into the Dumpster. Meanwhile, Officer Ramirez had detained defendant at her location at the front of the apartment complex. After calling in other officers to secure the perimeter, McCafferty returned to the alley, and Fite pointed into the Dumpster at a black bag, and said, "`The guy that ran that way, . . . , `threw that black back bag in the Dumpster."
McCafferty instructed another officer who had arrived at the scene, Timothy Connolly, to recover the bag from the Dumpster. Connolly looked inside the bag and found some personal hygiene items, a sock which contained a glass tube with black burns on the glass which Connolly believed had been used to smoke methamphetamine, and a black zipper nylon bag containing gun oil and some ammunition. Meanwhile, Officer Ramirez had searched defendant and found a clear baggie containing a white substance which Ramirez recognized to be methamphetamine.
The parties had earlier stipulated that defendant was a felon for purposes of the charge of possession of ammunition by a prohibited person.
Cooper had also been taken into custody by still another police officer, and acknowledged he was "original OVC." Gang expert, Detective Joel Nigro, testified that OVC is one of the major gangs in the City of Orange. Nigro was also familiar with Cooper, and identified the tattoos on Coopers face as a way of identifying his affiliation with a particular gang. Cooper had a tattoo of "OVC" under his lip. A similar tattoo on the side of his neck said "Orange Varrio," and "Cypress" underneath a cluster of oranges. Nigro testified that OVC was an ongoing organization with between 30 and 40 active participants, having as its principal activities the possession for sale of narcotics, murder or attempted murder, assault with a deadly weapon, criminal threats, arson, burglary, vehicle theft, felony vandalism, and robberies. Pleas of guilty to charges of street terrorism by two members of OVC were introduced as evidence. Cooper was a "shot caller," or leader, in OVC, and was an active member of the gang at the time of the charged crimes.
Nigro also opined that defendant was an active participant in the OVC gang on the date of the charged offenses. Nigros opinion was based on his review of five STEP notices issued to defendant over a period of four years, multiple photographs depicting defendant with other known OVC members, past plea agreements wherein defendant admitted membership, and the current offense. Based on a hypothetical question that mirrored the facts of this case, Nigro further opined that the charged crime of possession of ammunition by a prohibited person was committed for the benefit of and in association with the criminal street gang called OVC, and that the offense was done to promote, further, or assist criminal conduct by OVC members.
Street Terrorism Enforcement and Protection Act, section 186.20 et seq.
DISCUSSION
We have reviewed the entire record of this trial and the sentencing choices made by the court. We discern no error which is arguable on appeal. Counsel suggested we review the evidence to determine whether it is sufficient to sustain the conviction on each of the charged offenses. Our role on an appeal based on insufficiency of the evidence is a limited one. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "`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. [Citation.]" (Ibid.) "`[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder." (Ibid.) Under this standard of review, the facts recited above, all taken from the trial record, unquestionably constitute evidence sufficient to support defendants convictions for the crimes of possession of ammunition by a felon with a gang enhancement, street terrorism, and possession of drug paraphernalia. And the sentencing scheme chosen by the trial court was within its sentencing discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
OLEARY, ACTING P. J.
FYBEL, J.