Opinion
G035356
5-31-2007
THE PEOPLE, Plaintiff and Respondent, v. GUILLERMO BERNABE, Defendant and Appellant.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
The trial court sentenced defendant Guillermo Bernabe to prison after a jury found him guilty of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); all further statutory references are to that code unless otherwise indicated), with a gang enhancement (§ 186.22, subd. (b)), and street terrorism (§ 186.22, subd. (a)). The jury acquitted him on two other counts. He contends: (1) Insufficient evidence supports his conviction on the substantive charges and the true finding on the gang enhancement; (2) the admission of his pretrial statements violated Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]; (3) the trial court erred in admitting certain evidence and excluding other evidence; and (4) the trial court erred in sentencing and in the preparation of the abstract of judgment. We agree with defendant and the Attorney General, that correction of the trial courts sentencing minute order and the abstract are required, but otherwise disagree with defendants contentions and affirm judgment.
FACTS
Christopher Naranjo, a private security guard, searched an SUV driven by Francisco Gomez when the vehicle entered an Anaheim night club parking lot. Defendant and Ruben Hurtado, both members of a Wilmington street gang named Eastside Wilmas, were in the vehicle with defendant sitting in the front passenger seat. Naranjo discovered a loaded semi-automatic pistol hidden below a cup holder located forward of the front seat center console. Defendant and Hurtado began to walk away from the area. Naranjo confronted them and said they needed to return. Initially, the two failed to do so, but then complied. Another security guard alerted the police.
Officer Angelica Mejia conducted a pat-down search of defendant and interviewed him. Defendant admitted being on probation for petty theft, acknowledged he belonged to Eastside Wilmas, and showed her a number of his gang tattoos. After first agreeing he was the front seat passenger, defendant claimed he sat in the SUVs back seat. Initially, he also admitted knowing about the gun, but then denied being aware of its presence. The gun was unregistered and a forensic specialist found no fingerprints on the gun.
Mark Maldonado, a police officer assigned to an anti-gang unit that patrolled the area covered by the Eastside Wilmass territory, testified as an expert on Hispanic street gangs. He explained the nature of rivalries between street gangs, the likelihood of violence during encounters between opposing gang members, and the importance of guns within the gang subculture. He testified that, for protection purposes, when gang members leave their "turf," they tend to travel in a group and carry a weapon which is shared by the members. Because gang members with a criminal record are frequently subject to probation or parole search and seizure terms, they will allow persons without a criminal record to carry the weapon to avoid police detection of it.
Maldonado testified Eastside Wilmas was a street gang with approximately 600 members, subdivided into several cliques, and described its history, territory, hand signs, and tattoos. He was familiar with defendant and identified him as an active member of the Eastside Wilmas. In support of the pattern of criminal gang activity requirement, Maldonado cited a January 2000 robbery and a January 2003 carjacking by other Eastside Wilmas members, plus defendants 1998 conviction for assault with a firearm resulting in serious bodily injury. Based on a hypothetical scenario, Maldonado also opined the gun found in the SUV had been possessed for the benefit of, at the direction of, and in association with Eastside Wilmas, and that its possession would promote and assist criminal conduct by the members of the gang.
DISCUSSION
1. Sufficiency of the Evidence
In determining whether the evidence presented at trial supports a verdict, an appellate court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) A judgment will not be reversed for insufficiency of the evidence unless "`upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
a. Defendants Possession of a Firearm
Defendants status as a previously convicted felon is not disputed. While "acknowledge[ing] . . . the evidence showed . . . he made inconsistent statements regarding where he was seated in the vehicle, [and] whether he knew about the presence of the weapon in the vehicle," defendant asserts there was no evidence that he had possession of the gun or even knew it was in the SUV.
Possession exists where the defendant has "immediate possession or control" of a weapon, or it is "under [the defendants] dominion and control, either directly or though others." (People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084.) It may be proven circumstantially, and possession for even a limited time and purpose is sufficient. (People v. Neese (1969) 272 Cal.App.2d 235, 245.) Defendants awareness of the guns presence also presented a question of fact for the jury that could be circumstantially established. (People v. Hunt (1963) 221 Cal.App.2d 224, 227.)
Naranjo found the gun under an easily removable cup holder within reach of a front seat passenger. Defendant acknowledges Naranjo saw him in the front passenger seat, and he initially admitted to Mejia being in the front seat. His subsequent denial lends strength to an inference that he knew about the gun and had at least joint control over it. When Mejia first asked if he knew about the gun, defendant responded affirmatively. The fact that he thereafter denied making this admission did not nullify his prior statement. Defendants attempt to leave the area after the weapons discovery further supports his criminal culpability. The jury was entitled to draw inferences from this evidence contrary to the inferences defendant asks us to draw. Nothing more is required to constitute substantial evidence of constructive possession of a weapon.
b. The Gang Enhancement
Defendant argues there is no substantial evidence to support the finding he possessed the gun for the benefit of a criminal street gang, arguing, "The prosecutions theory evolved from the experts testimony that guns are a gangs weapon of choice, that carrying a gun is a status symbol, how gang members share guns, that when they travel outside their turf they generally travel in groups and need to be armed, and that some gang members use a person not on probation or parole [i.e. Gomez here] to carry a gun because such an individual is not subject to search and seizure." We disagree.
Defendant admitted to Mejia that he belonged to the Eastside Wilmas and displayed his gang tattoos for her. Maldonado knew defendant and opined that he belonged to the Eastside Wilmas. Maldonado was also acquainted with the Eastside Wilmas, having been assigned to investigate it for over two years. He opined that not only did this group qualify as a "criminal street gang" but, based on a hypothetical scenario, defendant possessed the gun for the benefit of, at the direction of, and in association with the Eastside Wilmas. (People v. Gonzalez (2006) 38 Cal.4th 932, 946 ["`an expert may render opinion . . . on the basis of facts given "in a hypothetical question""].)
Defendant notes the absence of certain gang characteristics: no evidence anyone touched the gun, absence of gang clothing, signs, or display of tattoos. But no rule requires every possible characteristic to be present in each case before a jury may find the criminal street gang enhancement true. Defendant cites People v. Martinez (2004) 116 Cal.App.4th 753, a case involving gang registration, which held mere past criminal history and gang affiliation was insufficient to establish a crime was gang related. (Id. at p. 761.) But, as discussed above, in this case there is more than mere past criminal history and evidence of gang affiliation to support the jurys finding.
c. The Street Terrorism Charge
Defendant attacks the sufficiency of the evidence supporting his conviction for street terrorism, claiming the evidence failed to show he was an active gang member at the time of the offense. Not so.
Mejia testified defendant told her that he was an Eastside Wilmas gang member and displayed his tattoos. Maldonado reached the same conclusion, describing the evidence on which he relied to support this opinion. "[T]he statutory language `actively participates in any criminal street gang" found in section 186.22, subdivision (a) means "involvement with a criminal street gang that is more than nominal or passive." (People v. Castenada (2000) 23 Cal.4th 743, 747.) When we consider the gang membership of both defendant and Hurtado, the location of the weapon and defendant in the SUV along with Maldonados "expert testimony about gang culture and habits," (People v. Ferraez (2003) 112 Cal.App.4th 925, 930), such as traveling outside a gangs territory in a group armed with a weapon that is shared by the gang members, we have no difficulty in finding substantial evidence supports the conclusion that defendant participated actively in his gang when arrested outside the nightclub. (Id. at pp. 930-931.)
2. Admission of Defendants Statements
Defendant claims the trial court erred when it denied his motion, under Miranda v. Arizona, supra, 384 U.S. 436, to exclude the statements made to Mejia. The trial court found defendant was not in custody when Mejia questioned him. Substantial evidence supports that conclusion.
The nightclub had a procedure whereby security guards searched vehicles entering its parking lot. Mejia, in uniform, arrived on the scene after the clubs private security guards contacted the police. At that point, Gomez, the SUVs driver, had been handcuffed by the security guards. Defendant and Hurtado, the passengers, were standing nearby surrounded by the clubs security personnel, but not handcuffed.
After talking to the security guards, and learning about the gun, Mejia consensually conducted a pat-down search of defendant. She then questioned him, asking for his name, about his probation and parole status, whether he was a gang member, where he had met Gomez that evening, where he sat in the SUV, and if he knew about the gun in the vehicles center console. During this time, defendant had not been placed under arrest.
The obligation to give a Miranda advisement arises only "when a person is subjected to custodial interrogation. [Citation.]" (People v. Mosley (1999) 73 Cal.App.4th 1081, 1088.) A temporary investigative detention does not trigger this duty. (People v. Clair (1992) 2 Cal.4th 629, 675.) Thus, the Miranda rule is not violated where a police officer temporarily detains a person that he or she reasonably suspects of being involved in criminal activity and "`ask[s] the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officers suspicions. [Citation.]" (Ibid.)
In determining whether the interrogation is custodial, "[t]he totality of the circumstances surrounding an incident must be considered as a whole. [Citations.]" (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.) "Although no one factor is controlling, the following circumstances should be considered: `(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of questioning. [Citation.] Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspects freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were `aggressive, confrontational, and/or accusatory, whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]" (People v. Pilster, supra, 138 Cal.App.4th, at pp. 1403-1404.)
"In reviewing constitutional claims of this nature, it is well established that we accept the trial courts resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence." (People v. Cunningham (2001) 25 Cal.4th 926, 992.) The record supports the trial courts finding defendant had been subjected to only a temporary investigative detention when Mejia questioned him. He had not been arrested and the detention by Mejia had been brief. Considering these and the other factors mentioned above, we are satisfied that the obligation to give a Miranda advisement was not triggered in this case. The trial court did not err in admitting defendants statements.
3. The Other Evidentiary Rulings
a. Hurtados Statements
Naranjo testified that when defendant and Hurtado began walking away from the SUV, he asked them to return. One of the two said he needed to relax. Naranjo responded, "Im not going to relax." Hurtado asked Naranjo for his name and said, "All right. Ill remember you. . . . I will. I remember your face. Its okay. Ill come back." The two then returned to the vehicles location. The court admitted this testimony over objections based on hearsay, Evidence Code section 352, relevance, and violation of his right to confrontation (Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2 177]).
None of the objections have merit. The court found the statement admissible for a nonhearsay purpose, noting "[t]here is conduct that occurred before the statement, but more importantly, conduct that occurred . . . after the statement that is relevant for the trier of fact [o]n the issues in this case of constructive possession." As the Attorney General notes, the trial court has broad discretion in determining the relevancy of evidence. (People v. Carpenter (1999) 21 Cal.4th 1016, 1048.) Defendant and Hurtado were within hearing distance of each other, and we agree with the trial court that the verbal exchange between Naranjo and Hurtado helped explain the circumstances surrounding their return. Their initial reluctance to do so tends to show their guilty knowledge about the gun.
As to the Evidence Code section 352 objection, the trial court properly exercised its responsibility by weighing the probative value of the evidence against any prejudice. On appeal, the courts ruling is subject to the deferential abuse of discretion standard of review. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Only if the record shows an exercise of discretion in an arbitrary, capricious, or patently absurd manner that caused a manifest miscarriage of justice will an Evidence Code section 352 ruling be overturned. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
We see little prejudice. Defendant argues the statements were prejudicial because Hurtados "statements could easily be perceived as threats, . . . which in turn could evoke an emotional bias against [defendant]." But the general rule excluding evidence of a third partys effort to dissuade a potential witness is inapplicable where the alleged suppression effort is connected to the defendant in some manner, including proof it occurred in the defendants presence. (People v. Williams (1997) 16 Cal.4th 153, 200-201.) Furthermore, because of the clear relevance of defendants conduct after Hurtados statements, the mere fact this evidence might "evoke[] an emotional bias" does not render inadmissible under section 352. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369-1370.)
Nor can defendant demonstrate prejudice by reference to the jurys inconsistent verdicts, which found him guilty of possession of a firearm by a felon, but not guilty of two other counts charging him with being a convicted person carrying a concealed weapon in a vehicle and a gang member carrying a concealed weapon in a vehicle. "As a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.] . . . Although `"error," in the sense that the jury has not followed the courts instructions, most certainly has occurred, in such situations, `it is unclear whose ox has been gored. [Citation.] It is possible that the jury arrived at an inconsistent conclusion through `mistake, compromise, or lenity. [Citation.] Thus, if a defendant is given the benefit of an acquittal on the count on which he was acquitted, `it is neither irrational nor illogical to require him to accept the burden of conviction on the count on which the jury convicted. [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 600.) Here, it is likely that the jury thought it was unnecessary to convict defendant of what were largely overlapping offenses.
Finally, defendant variously suggests that his rights were violated because he had no opportunity to cross-examine Hurtado. Although he raised a similar objection in the trial court by citing Crawford v. Washington, supra, 541 U.S. 36, on appeal he does not present any legal argument regarding this issue. The failure to adequately brief the issue, waives it for purposes of appeal. (People v. Stanley (1995)10 Cal.4th 764, 793 [contentions waived when there is failure to support them with reasoned argument and citations to authority].) In any event, Hurtados statement was not testimonial.
b. Evidence of Defendants Prior Conviction
Over objection, the court admitted, with appropriate limiting instructions, evidence of defendants 1998 conviction for assault with a firearm, both as one of the predicate acts establishing Eastside Wilmas engaged in a pattern of criminal gang activity (§ 186.22, subd. (e) & (f)) and to support Maldonados opinion defendant actively participated in the gang. Defendant contends the courts ruling constituted an abuse of its discretion because the prosecution also presented proof of a 2000 robbery and a 2003 carjacking by Eastside Wilmas gang members, and there was substantial evidence to support Maldonados opinion testimony without the prior conviction.
As noted, an Evidence Code section 352 ruling is subject to the deferential abuse of discretion standard of review on appeal. (People v. Kipp, supra, 26 Cal.4th at p. 1121.) The prior conviction evidence was highly relevant. The court cited the prosecutions burden of showing at least two predicate acts to establish Eastside Wilmas engaged in a "pattern of criminal gang activity." (§ 186.22, subds. (e) & (f).) Without evidence of defendants prior conviction, if the jury found proof of one of the other predicate acts insufficient, the prosecution would be unable to establish either the gang enhancement or street terrorism offense. The prosecutor also argued defendants prior conviction, a drive-by shooting with Hurtado and other gang members, was relevant to establish he was an active gang member. Maldonado testified that in forming his opinions concerning the nature of Eastside Wilmas and defendants membership in it, he considered defendants earlier conviction.
Defendant relies on People v. Calderon (1994) 9 Cal.4th 69 and dictum in People v. Hernandez (2004) 33 Cal.4th 1040 to support his argument the court erred in not bifurcating trial on the prior conviction. In Calderon, the prior conviction was only to be used for a sentence enhancement. In Hernandez, the court stated "[a] prior conviction allegation relates to the defendants status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. [Citation.]" (People v. Hernandez, supra, 33 Cal.4th at p. 1048.) So here, the evidence was similarly "inextricably intertwined" with the charged offense.
c. Exclusion of Gomezs Guilty Plea
Gomez, the driver, plead guilty to possession of a firearm in connection with the present incident. Defendant sought to introduce evidence of the guilty plea, arguing that the plea was relevant to show the gun belonged to Gomez. The prosecution objected on relevance and hearsay grounds. The trial court sustained the objection, but on the basis of Evidence Code section 352, finding the document "would be, one, misleading to the jury in terms of who had knowledge of that gun in that car and, number two, it would be an incredible undue consumption of courtroom time because then the prosecution would have the opportunity to call the parties to . . . the [plea] negotiations to explain to the jury what we all know what this really means." Neither the objections urged by the prosecution nor the courts basis for excluding the evidence can stand.
The Gomezs guilty plea was relevant. Even though defendant and Gomez could have possessed the gun jointly, the plea presented some evidence that defendant did not have possession. Evidence of a guilty plea, a declaration against interest, is not barred by the hearsay rule. (Evid. Code, § 1230; People v. Cummings (1993) 4 Cal.4th 1233, 1321) Nor do we accept that Evidence Code section 352 provided an acceptable basis for the exclusion of the evidence. How would this evidence mislead the jury? Instructions explaining the theory of joint possession would explain the mere fact that one person admits to possession does not necessarily lead to the conclusion that another cannot also have possession of the weapon. Nor can we see a necessity for the jury to receive evidence of the intricacies of plea negotiations if this evidence had been admitted.
In determining whether the error was harmless, we apply People v. Watson (1956) 46 Cal.2d 818. The error, merely excluding one item of evidence that might have some relevancy, does not rise to a constitutional error under Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] And the error was harmless under Watson. "[A] `miscarriage of justice should be declared only when the court, `after an examination of the entire cause, including the evidence, is of the `opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson, supra, 46 Cal.2d at p. 836.) We cannot conclude that, had Gomezs guilty plea been admitted, "it is reasonably probable that a result more favorable to [defendant] would have been reached in this case. (Ibid.)"
d. Expert Testimony
Defendants opening brief cites People v. Killebrew (2002) 103 Cal.App.4th 644, for the proposition the court erred in permitting the expert witness to express an opinion on whether the gun was possessed for the benefit of the gang. Expert opinion testimony as to the knowledge and intent of gang members in general is admissible. (People v. Ward (2005) 36 Cal.4th 186, 209-210.) Furthermore, defendant failed to object to the question or move to strike the answer, thus waiving the issue. "We need not address [defendants contention] on the merits because defense counsels failure to object to the prosecutors [questions] waives the issue on appeal. [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1125-1126.)
4. No Cumulative Error
Because we conclude that the trial court did not err in any of the rulings on which defendant bases his appeal, except for the exclusion of Gomezs guilty plea, we need not consider his argument that there was cumulative error.
5. No Error in Sentencing Except for Clerical Errors
Under count 1 of the information defendant was convicted of possession of a firearm by a felon and under count 4 of street terrorism. The court imposed consecutive sentences on these convictions. Defendant contends the trial court violated section 654 by failing to stay the sentence imposed on count 4. We disagree.
Section 654 provides, in effect, that where a single act may be punished in separate ways, the court may not impose consecutive sentences under the different provisions of law. (§ 654, subd. (a).) In order to determine whether one or more acts are involved in defendants criminal conduct, the test is whether defendants criminal intent and objective was single or multiple. (People v. Beamon (1973) 8 Cal.3d 625, 639.) Or, as stated by defendant "[i]f . . . defendant had multiple criminal objectives that were independent of, and not merely incidental to each other, only then can he be punished for multiple offenses."
The intent required to support a conviction for possession of a firearm by a felon and that needed to support a conviction of street terrorism are different. (In re Jose P. (2003) 106 Cal.App.4th 458, 470; People v. Herrera (1999) 70 Cal.App.4th 1456, 1468.) We reject defendants argument that these and other cases with similar holdings are in error and that we should ignore them. And, as noted by defendant "[t]he factual finding that there was more than one objective must be supported by substantial evidence." Here the trial courts conclusion is supported by substantial evidence.
The Attorney General agrees with defendants claims the amended minute order prepared for the March 25, 2005 sentencing hearing and the abstract of judgment must be corrected. We concur. As for the minute order, it must be corrected to reflect a jury found defendant guilty of street terrorism on count 4; he did not plead guilty to this charge. The jurys true findings for the gang enhancements alleged for counts 5 and 6, plus the lesser included offense on count 4, must also be stricken. Finally the abstract of judgment states that a five year enhancement was imposed under section 667.5, subdivision (b); this reference should be corrected to read section 667, subdivision (a)(1).
DISPOSITION
The judgment is affirmed. The court shall order correction of the minute order and abstract of judgment as provided herein. The clerk of the superior court shall forward a copy of the new abstract of judgment to the Department of Corrections and Rehabilitation.
We Concur:
SILLS, P. J.
ARONSON, J.