Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA304217 Peter Espinoza, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Raymond Coleman appeals from the judgment entered following his conviction by a jury of unlawful possession of a firearm by a felon with special findings by the jury he had committed the offense for the benefit of a criminal street gang and by the court in a bifurcated proceeding he had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law. Coleman contends there was insufficient evidence to support the gang enhancement; Judicial Council of California Criminal Jury Instruction (CALCRIM) Nos. 220 and 222 are constitutionally deficient because they preclude the jury from considering the lack of evidence as a basis for finding reasonable doubt; and the trial court miscalculated his presentence custody credits. Coleman’s substantive arguments are without merit; but, as the Attorney General concedes, the trial court improperly limited his conduct credits to 15 percent of his actual custody time. Accordingly, we affirm the judgment of conviction and the aggregate sentence imposed but remand the matter to the trial court to recalculate Coleman’s presentence custody credit.
FACTUAL AND PROCEDURAL HISTORY
1. The People’s Case
a. The charges
In a one-count information filed July 10, 2006 Coleman was charged with unlawful possession of a firearm by a felon in violation of Penal Code section 12021, subdivision (a)(1). The information specially alleged, pursuant to section 186.22, subdivision (b)(1)(A), Coleman had committed the offense 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 criminal conduct by gang members. It also was specially alleged Coleman had suffered one prior serious or violent felony conviction within the meaning of the Three Strikes law (§§ 667.5, subds. (b)-(i); 1170.12, subds. (a)-(d)) and two prior felony convictions for which he had served prison terms within the meaning of section 667.5. Coleman pleaded not guilty and denied the special allegations.
Statutory references are to the Penal Code.
b. The arresting officer’s testimony
Los Angeles Police Officer Miguel Reynoso, a police officer for almost nine years, had worked with gang enforcement units for five years and, at the time of Coleman’s arrest, was assigned to the 77th Street gang enforcement detail where he was responsible for gathering gang intelligence and suppressing gang activity within the 77th Street division. Reynoso was familiar with gangs in the area and had contact with gang members on nearly a daily basis.
On June 9, 2006, at approximately 7:25 p.m., Officer Reynoso and his partner, Officer Robledo, were patrolling the area of Florence and La Salle Avenues in a marked, black-and-white squad car. The area was near the border of territory occupied by two gangs -- the Eight Trey Gangsters and the Rollin’ 60’s. As his partner drove west on Florence Avenue, Reynoso noticed Coleman standing alone on the street. Approximately eight young men were congregated on the sidewalk nearby. Coleman appeared to be speaking to someone in the group when Reynoso first observed him.
Coleman looked in the direction of the patrol car, placed his hand in his right front pants pocket and walked between two parked cars and onto the sidewalk. Officer Reynoso testified armed gang members typically carry their firearms in their pockets or waistbands and will attempt to discard their weapons when they see a police officer. Reynoso saw Coleman remove a small, blue steel handgun from his pants pocket and place the handgun on top of the right rear tire of one of the automobiles on the street. Coleman then saw a second man approach Coleman; the second man appeared to alert Coleman to the current location of the patrol car; Coleman looked in that direction and began walking away.
At that point Officer Reynoso stepped out of the patrol car and ordered Coleman to stop. Although he looked back at Reynoso a few times, Coleman continued to walk away and then started to climb a chain link fence. Reynoso unholstered his gun and again ordered Coleman to stop. Coleman eventually climbed off the fence and was arrested without further incident.
While Officer Reynoso was detaining Coleman, he noticed the other young men start walking toward the automobile where Coleman had deposited the handgun. Officer Robledo immediately went to secure that vehicle and recovered a loaded, .38 caliber handgun with a blue steel finish from the top of the right rear tire. The young men continued walking toward a car wash across the street where they separated from one another.
Because the group of young men left the scene, the police were unable to interview or otherwise identify any of them. Officer Reynoso recalled they were wearing baggy white shirts and baggy pants consistent with the general attire of gang members, but he acknowledged many young people wear similar clothes. Reynoso also conceded he did not attempt to determine whether any of the men was a gang member and did not receive information indicating anyone in the group was involved in a gang.
At the time of his arrest Coleman was wearing white and blue tennis shoes, blue jeans and a white T-shirt, which, according to Officer Reynoso, was consistent with the clothing generally worn by gang members. However, Coleman had no gang symbols on his clothing or his person.
c. The gang expert’s testimony
Los Angeles Police Officer Luis Marin testified as a gang expert on behalf of the People. An eight-year veteran of the police force, Marin had been assigned to the 77th Street gang enforcement detail for the past three years where his primary duties were to gather gang intelligence, document gang members and investigate gang-related crimes. Marin was responsible for monitoring two specific gangs within the 77th Street division -- the Eight Trey Gangsters and the Rollin’ 90’s. The Eight Trey Gangsters were a “gangster Crip” gang and a major rival of the Rollin’ 90’s and Rollin’ 60’s, which considered themselves “neighborhood Crip” gangs. Marin had contact with Eight Trey Gangster members on a daily basis and with Rollin’ 60’s members every other day. He had also personally assisted in 40 to 60 investigations of gang-related crimes, primarily involving the Eight Trey Gangsters. Marin estimated there were nearly 500 documented members of that gang.
According to Marin, although many gang members do not flaunt their gang affiliation, it is common for the Eight Trey Gangsters to wear dark blue attire with the number “3” or the letters “T” or “G” on it and for “neighborhood Crips” to wear powder blue clothing displaying the letter “N.”
In Officer Marin’s opinion Coleman was an active member of the Eight Trey Gangsters. He explained he had had several personal contacts with Coleman prior to the charged offense during which Coleman admitted his gang affiliation. The first contact was shortly after Marin joined the 77th Street gang enforcement detail. At that time Coleman identified himself as “BJ” from the Eight Trey Gangster Crips. In June 2005 Marin had another contact with Coleman at St. Andrews Park, which was a stronghold for the gang. Coleman was with two other admitted gang members at the time and again indicated to Marin he was a member of the Eight Trey Gangsters. Marin had also reviewed eight field information cards prepared by other police officers that further documented Coleman’s admission he was an Eight Trey Gangsters member with a moniker of “BJ.” The most recent field information card was from a contact with Coleman that had occurred on December 6, 2005.
Officer Marin testified the general philosophy of the gangs he monitored was to eliminate rival gang members and to establish their dominance in the community. Individual gang members also were concerned with elevating their own status within the gang by “putting in work,” which generally involved committing crimes on behalf of the gang. Those crimes included shootings, robberies and narcotics sales. In Marin’s opinion, carrying a weapon was another way of “putting in work.” By possessing guns, gang members not only protect their territory from rival gangs but also instill fear in the surrounding community, so that local residents are reluctant to report gang-related crimes. Carrying guns also tend to enhance a gang member’s status within the gang because it demonstrates his willingness to risk getting caught with a weapon for the benefit of the gang.
According to Officer Marin, among Eight Trey Gangsters’ primary activities were eliminating enemies by shooting rival gang members and obtaining funds for their gang by committing robberies and burglaries and making narcotics sales. Marin based his opinion of the Eight Trey Gangsters’ primary activities on “[i]nvestigations, speaking with officers, interviews with informants, custodial situations, [and] non-custodial situations.” He explained in his daily contacts with gang members they tended to speak openly to him about what they were doing and what was happening in the community.
Officer Marin reviewed for the jury two minute orders memorializing the criminal convictions of admitted members of the Eight Trey Gangsters. The first related to the October 2005 conviction of Wilson Jones for a murder committed in 2004. Marin had assisted in the police investigation and arrest of Jones and had personal knowledge Jones was an Eight Trey Gangsters member. The second concerned the November 2004 conviction of Hobert Thursby for robbery. Marin had been the arresting officer in that case and knew Thursby was a member of the Eight Trey Gangsters.
Officer Marin also described for the jury the concept of a “hood holiday” -- an aspect of gang culture involving the celebration of a specific day in the year that signifies the “birthday” of a particular gang. The Eight Trey Gangsters’ “hood holiday” is August 3. The Rollin’ 60’s’ “hood holiday” is June 10. Marin explained on a gang’s “hood holiday” its members, including those who live outside the area, congregate at a central location to commemorate their affiliation with the gang. In the days leading up to a “hood holiday,” there is often an increase in violent crimes as gang members try to “put in work” to establish their dominance in the community and to enhance their individual status within the gang. In addition, rival gangs in territories near the location of a gang celebrating a “hood holiday” also tend to commit more crimes during this time in an effort to disrupt their rival’s celebration. Marin confirmed Coleman was arrested in an area occupied by the Eight Trey Gangsters and only a few blocks from an area occupied by the Rollin’ 60’s. His arrest had occurred the day before the Rollin’ 60’s’ “hood holiday.”
Asked hypothetically whether a gang member who possessed a gun at night within his gang’s territory but near the border of a rival gang would possess that gun to benefit or assist the gang, Officer Marin opined the gun possession would be for the benefit, and in furtherance, of the individual’s gang because guns are used to instill fear in the community and to protect the gang’s territory. Marin also reiterated that possessing a gun elevates an individual gang member’s own status within his gang by showing a commitment to carry a gun notwithstanding the personal risk involved. Finally, Marin explained a gang member’s possession of a gun on the day before a “hood holiday” further supported his opinion the gun would be held for the benefit of the gang because during such times gang members feel an increased need to carry weapons for potential use against rival gang members.
On cross-examination Officer Marin acknowledged there was no information indicating Coleman had displayed any gang signs or wore any gang symbols during the incident leading to his arrest.
2. The Defense Case
Coleman did not call any witnesses or present any evidence in his defense other than through cross-examination of the People’s witnesses.
3. The Verdict and Sentencing
The jury found Coleman guilty of unlawful possession of a firearm by a felon and found true the special allegation he had committed the offense for the benefit of a criminal street gang. In a bifurcated proceeding Coleman admitted each of the prior conviction allegations.
The trial court sentenced Coleman to an aggregate state prison term of seven years: the middle term of two years for the firearm possession conviction, doubled pursuant to the Three Strikes law, plus three years for the gang enhancement. The court imposed, but stayed, two additional one-year terms for Coleman’s two prior felony convictions for which he had served separate prison terms. Coleman was awarded total presentence custody credit of 384 days, 334 actual custody days plus 50 days of conduct credits.
DISCUSSION
1. Substantial Evidence Supports the Jury’s True Finding on the Criminal Street Gang Enhancement
To obtain a true finding on an allegation of a criminal street gang enhancement, the People must prove the crime at issue was “committed 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 . . . .” (§ 186.22, subd. (b)(1).) To prove a gang is a “criminal street gang,” the prosecution must demonstrate it has as one of its “primary activities” the commission of one or more of the crimes enumerated in section 186.22, subdivision (e), and it has engaged in a “pattern of criminal gang activity” by committing two or more such “predicate offenses.” (§ 186.22, subds. (e), (f); People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)
Section 186.22, subdivision (f), defines the term “criminal street gang” as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more” criminal acts enumerated in subdivision (e) of the statute and which has “a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” Subdivision (e) of section 186.22 defines the phrase “pattern of criminal gang activity” as “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more” of the offenses enumerated in that subdivision “provided at least one of those offenses occurred after the effective date of this chapter [September 26, 1988,] and the last of those offenses occurred within three years after a prior offense, and the offenses are committed on separate occasions, or by two or more persons.”
Coleman contends there was insufficient evidence to support the jury’s findings the Eight Trey Gangsters had as one of its primary activities the commission of any of the statutorily enumerated crimes or engaged in a pattern of criminal gang activity. He also argues the prosecution failed to present substantial evidence his unlawful possession of a firearm was for the benefit of a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members.
In evaluating these claims we must determine whether, on the entire record viewed in the light most favorable to the People, any rational trier of fact could find the special gang-enhancement allegation true beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; see People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 [if substantial evidence supports the jury’s finding, the fact the record could reasonably be interpreted to support a contrary finding will not warrant reversal].) “Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt.” (People v. Millwee (1998) 18 Cal.4th 96, 132; see Bolin, at p. 331 [“[r]eversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]’”].)
There is no doubt on this record the jury reasonably could have rejected the gang enhancement allegation. However, looking at the record as whole, as we must, substantial evidence supports its true finding, that is, “evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
a. There was substantial evidence the Eight Trey Gangsters had as one of its “primary activities” the commission of crimes enumerated in section 186.22 and had engaged in a “pattern of criminal activity”
“The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes be one of the group’s ‘chief’ or ‘principal’ occupations” as opposed to the occasional commission of those crimes by one or more of the group’s members. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) “Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (Id. at p. 324.) This is most often accomplished through expert testimony. (Ibid.; Gardeley, supra, 14 Cal.4th at p. 617.)
Officer Marin, the People’s gang expert, testified the primary activities of the Eight Trey Gangsters involved shooting rival gang members and funding gang activities by committing robberies and burglaries and making narcotics sales. Murder, robbery, burglary and drug sales are all crimes listed in section 186.22, subdivision (e). (See § 186.22, subd. (e)(2) [robbery], (3) [murder or manslaughter], (4) [sale of controlled substances] & (11) [burglary].) Coleman contends this expert testimony was insufficient, however, because the record does not establish whether the information that formed the basis for Marin’s opinion was reliable. To the contrary, Marin testified his opinion was based on his own personal experience investigating gang activities, as well as “speaking with officers, interviews with informants, custodial situations, [and] non-custodial situations.” Marin also explained gang members had become comfortable with him, “you talk to them, and a lot of times they’ll talk about what’s happened in the past and, you know, some of the stuff they do on a daily basis.” No more is required. (See, e.g., People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [witness’s “eight years dealing with the gang, including investigations and personal conversations with members, and reviews of reports suffices to establish the foundation for his testimony” regarding gang’s primary activities]; People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 [gang expert’s personal familiarity with predicate crimes provided sufficient foundation for his testimony].)
Coleman’s reliance on In re Alexander L. (2007) 149 Cal.App.4th 605 is misplaced. As we explained in People v. Margarejo (2008) 162 Cal.App.4th 102, 107-108, the expert in Alexander L. did not identify the gang’s primary activities and equivocated on his direct examination and contradicted himself on cross-examination. Officer Marin’s expert testimony suffered from none of these deficiencies. (See also People v. Martinez, supra, 158 Cal.App.4th at p. 1330 [“Alexander L. is different because there the expert never specifically testified about the primary activities of the gang”].)
To show a pattern of criminal activity as defined in section 186.22, subdivision (e), the predicate offenses must have been committed on (1) separate occasions or (2) by two or more persons. (§ 186.22, subd. (e); People v. Loeun (1997) 17 Cal.4th 1, 9-10.) Officer Marin testified he was personally involved in the prosecution and ultimate murder conviction of Eight Trey Gangster member Jones and the robbery conviction of Eight Trey Gangster member Thursby. That testimony, based on Marin’s personal knowledge, established the requisite predicate offenses to prove a pattern of criminal activity.
b. There was substantial evidence Coleman committed the underlying offense for the benefit of the Eight Trey Gangsters
The evidence established Coleman was an active member of the Eight Trey Gangsters street gang and was carrying a loaded handgun in the pocket of his pants on the evening of June 9, 2006 in his gang’s territory close to the border of the territory of a rival gang, Rollin’ 60’s. Coleman attempted to discard the gun when he saw Officer Reynoso on patrol in the neighborhood in his marked police car.
The following day, June 10, 2006, was a “hood holiday” for the Rollin’ 60’s when gang members living in various locations assembled in their territory to celebrate their affiliation with the gang. According to Officer Marin, gang shootings and other violent crimes increase on a “hood holiday” and several days preceding it as out-of-town gang members arrive in their territory and “put on work with the rival gangs.” Neighboring gangs also engage in increased criminal activity to attempt to disrupt their rival’s celebration.
Officer Marin was asked to assume the significant facts of the case, which we have summarized, and was then asked whether in his opinion under those circumstances a hypothetical gang member’s possession of a loaded gun was “for the furtherance of the gang.” Marin answered yes and explained carrying a weapon in gang territory was one way a gang member enhances his own status within the gang. In addition, by possessing guns, gang members not only protect their territory from rival gangs but also instill fear in the community, thus further establishing the gang’s position in the neighborhood. Finally, Marin testified gang members know when a neighboring rival gang’s “hood holiday” will occur, which in the hypothetical would heighten the awareness and need to have a weapon.
The jury was properly instructed, pursuant to CALCRIM No. 1401, for it to return a true finding on the special gang-enhancement allegation, the People must prove both that Coleman committed the crime for the benefit of, at the direction of or in association with a criminal street gang and that, in doing so, he intended to assist, further or promote criminal conduct by gang members. In addition, during its deliberations the jury sent a written question to the court, “Your Honor, I[f] we the jury find the defendant was carrying the gun because he is a gang member, would that make him guilty of the special allegation.” The court responded, “If you have reached a verdict of guilty on Count I, you must then decide whether Mr. Coleman possessed the gun for purposes as defined in instruction 1401.”
To be sure, if the evidence merely established Coleman was a gang member in gang territory and that he had a gun, as our dissenting colleague suggests, that would be insufficient to support the section 186.22, subdivision (b)(1), gang enhancement. But viewed in the light most favorable to the jury’s true finding, the record, described above, proved far more than that. This simply is not a case like In re Frank S. (2006) 141 Cal.App.4th 1192, 1199, in which the appellate court reversed the true finding on a gang enhancement because there was not sufficient evidence to support the specific intent element of the special allegation. The only evidence in Frank S. -- in which the underlying charge was carrying a concealed dirk or dagger (§ 12020, subd. (a)(4)) -- was that the minor had an affiliation with a gang (the Nortenos) and possessed a knife, which he claimed was for self-protection, while riding a bicycle in a neighbor not controlled by his gang. The Court of Appeal concluded the expert’s testimony that possession of a knife under those circumstances benefited the Nortenos was nothing more than the expert’s own belief of the minor’s intent. “[U]nlike in other cases, the prosecution presented no evidence other than the expert’s opinion regarding gangs in general and the expert’s improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang . . . .’” (Ibid.)
In contrast, in People v. Ferraez (2003) 112 Cal.App.4th 925, an active gang member was convicted of possession of cocaine base for sale. The expert’s testimony the intended sale was gang-related was supported not only by the defendant’s gang membership but also by evidence the defendant planned to sell the drugs in another gang’s territory and had received permission from that gang, which was friendly with his, to do so. (Id. at pp. 930-931.) Similarly, in the case at bar, it is not simply Coleman’s gang membership that supports the expert’s opinion and, ultimately, the true finding on the special allegation but also his location when arrested after discarding the loaded handgun (inside Eight Trey Gangsters territory, near the border of the rival Rollin 60’s’ territory) and the fact he possessed the weapon on the eve of the Rollin 60’s’ “hood holiday.” The expert’s opinion was entirely proper (see, e.g., Gardeley, supra, 14 Cal.4th at p. 617 [culture and habits of criminal street gangs are proper subjects of expert testimony]; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1208 [affirming admission of gang expert opinion that sole gunman who displayed no gang signs during shooting acted to bolster gang and his own reputation in gang]); and that expert testimony, supported by the additional evidence in the record, is sufficient to sustain the jury’s true finding. (See Gardeley, at p. 619 [based on an expert’s testimony that the details of an assault conveyed a “‘classic’ example of gang-related activity” to frighten residents of an area where the gang members sell drugs, a jury “could reasonably conclude that the attack on [the victim] by [gang members] was committed ‘for the benefit of, at the direction of, or in association with’ that gang, and ‘with the specific intent to promote, further, or assist in . . . criminal conduct by gang members’ as specified in the [Street Terrorism Enforcement and Prevention] Act,” (italics added)].)
The Supreme Court recently granted review in a case from Division Six of this court to determine whether substantial evidence supports convictions under section 186.22, subdivision (a) (active participation in criminal street gang), and true findings with respect to enhancements under section 186.22, subdivision (b), based on a gang expert’s testimony that three gang members who raped a young woman in concert committed their crimes for the benefit of and in association with their gang. (People v. Albillar, review granted Aug. 13, 2008, S163905.) The Court’s opinion may restrict the scope of permissible testimony from gang experts with respect to the required showing under section 186.22 that a crime was committed for the benefit of, at the direction of, or in association with a criminal street gang and may also provide guidance as to the type and extent of evidence, in addition to an expert’s testimony, necessary to establish a crime is sufficiently gang-related to support a criminal street gang enhancement. Using the appropriate, deferential standard of review and applying existing principles of law, however, we must affirm the jury’s true finding on the special gang-enhancement allegation.
2. CALCRIM Nos. 220 and 222 Are Not Constitutionally Deficient
The trial court instructed the jury in part, pursuant to CALCRIM No. 220, “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” Pursuant to CALCRIM No. 222 the court instructed in part, “You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. ‘Evidence’ is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence. [¶] Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses’ answers are evidence. The attorneys’ questions are significant only if they helped you to understand the witnesses’ answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true. [¶] . . . [¶] During the trial, you were told that the People and the defense agreed, or stipulated, to certain facts. This means that they both accept those facts as true. Because there is no dispute about those facts you must also accept them as true.”
Coleman challenges the trial court’s use of CALCRIM Nos. 220 and 222, arguing the instructions violated his right to due process because they permitted the jury to consider only whether the evidence received at trial gave rise to a reasonable doubt and thus precluded the jury from considering whether a lack of evidence raised a reasonable doubt as to his guilt. We review the validity of the trial court’s jury instructions de novo (People v. Burch (2007) 148 Cal.App.4th 862, 870), considering the instructions as a whole. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.) “An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words.” (Ibid.)
Coleman did not object to the jury instructions in the trial court. Generally, a defendant who fails to object to a proposed jury instruction forfeits the right to challenge that instruction on appeal. (People v. Bolin, supra, 18 Cal.4th at p. 326 [waiver found when defense counsel agreed to giving of instruction and raised no objection]; People v. Stone (2008) 160 Cal.App.4th 323, 331 [defendant waived claim of instructional error by failing to object].) However, Coleman asserts the purported inadequacy of the instructions “affected the substantial rights of the defendant,” and, therefore, no objection was necessary to preserve the issue for appeal. (See § 1259.) We need not decide that question; for, as discussed, even if the claim has been properly preserved, it lacks merit.
Coleman’s attack on CALCRIM Nos. 220 and 222 has been considered and rejected in numerous appellate decisions. (E.g., People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1119; People v. Campos, supra, 156 Cal.App.4th at pp. 1237-1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510; People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, 1156-1157.) We agree with the analyses and conclusions of those cases. Nothing in the language of CALCRIM Nos. 220 and 222 precludes the jury from considering the lack of evidence in determining whether the prosecution has proved its case beyond a reasonable doubt. Rather, the instructions merely inform the jury the People may not meet their burden of proof based on evidence other than that offered at trial. Accordingly, the trial court did not err in instructing the jury with CALCRIM Nos. 220 and 222.
3. The Trial Court Erred in Calculating Coleman’s Presentence Custody Credits
In calculating presentence custody credits, the trial court limited Coleman’s conduct credits to 15 percent of his actual time in custody pursuant to section 2933.1., subdivision (a), which provides, “Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of work time credit.” Coleman asserts, and the Attorney General concedes, the trial court erred because the offense for which Coleman was convicted -- unlawful possession of a firearm by a felon in violation of section 12021, subdivision (a)(1) -- is not among the violent felonies enumerated in section 667.5, subdivision (c), and, therefore, is not subject to section 2933.1, subdivision (a)’s 15 percent limitation.
The fact Coleman unlawfully possessed the firearm for the benefit of a criminal street gang is also insufficient to trigger the 15 percent conduct credit limitation of section 2933.1. Nothing in section 186.22, the gang enhancement statute, makes Coleman’s crime a violent felony under section 667.5, subdivision (c). (See People v. Florez (2005) 132 Cal.App.4th 314, 319, fn. 13 [noting “possession of a firearm as an ex-felon under section 12021, subd. (a)(1) in aid of a criminal street gang does not qualify as a ‘violent felony’ under any paragraph of section 667.5, subd. (c),” and thus, is not subject to the limitations of § 2933.1].) Accordingly, the trial court erred in limiting Coleman’s presentence conduct credits to 15 percent of his actual custody time, and a remand is necessary for redetermination of the proper amount of presentence custody credit to which Coleman is entitled.
DISPOSITION
The cause is remanded to the trial court to determine the proper amount of presentence custody credit to which Coleman is entitled. In all other respects the judgment is affirmed. Following redetermination of Coleman’s custody credit, the superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
I concur: WOODS, J.
ZELON, J. Concurring and Dissenting
I concur with the majority in all aspects of this case other than the conclusion that the evidence was sufficient to support the finding that Coleman committed the offense “for the benefit of, at the direction of, or in association with any criminal street gang.” As to that portion of the opinion, I respectfully dissent.
To establish a gang enhancement allegation under Penal Code section 186.22, the prosecution must prove, among other things, that (1) the crime for which the defendant was convicted was “committed for the benefit of, at the direction of, or in association with any criminal street gang,” and (2) the defendant had “the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1); People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) A defendant’s mere membership in a gang, however, does not suffice to establish this element of the gang enhancement statute. (People v. Gardeley, supra, at pp. 623-624.) Rather, “‘[t]he crime itself must have some connection with the activities of a gang.’” (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 (Frank S.).)
All further references are to the Penal Code, unless otherwise noted.
In Frank S., the Fifth Appellate District concluded that there was insufficient evidence to support the finding that a minor possessed a concealed dagger for the benefit of a gang in accordance with section 186.22. (Frank S., supra, 141 Cal.App.4th at pp. 1195, 1199.) The minor in Frank S. told the police that he carried the knife for protection from a rival gang. (Id. at p. 1195.) The prosecution’s gang expert opined that a gang member would use a knife for protection from rival gangs and to assault rival gangs, and that the minor’s possession of the knife benefited his gang by providing the gang with protection should its members be attacked. (Id. at pp. 1195-1196.) Finding that this evidence was insufficient to support the gang enhancement allegation, the court in Frank S. noted that there was no evidence “that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense.” (Id. at p. 1199.)
In contrast, in People v. Margarejo (2008) 162 Cal.App.4th 102, 111 (Margarejo), this court concluded that there was sufficient evidence to support a gang enhancement finding that the defendant possessed a gun in association with his gang and with the specific intent to assist in criminal conduct by gang members. The defendant in Margarejo led the police on a long car chase during which he continually made gang signs to officers and passing pedestrians. (Id. at p. 105.) He eventually fled on foot with a loaded semi-automatic pistol in hand and later was arrested at a fellow gang member’s apartment where he had left the gun. (Id. at p. 106.) We found that a jury reasonably could infer that the defendant possessed the gun to assist in gang crimes because “[l]eaving an illegal gun with a fellow gang member connects the gun and the gang.” (Id. at p. 111.) In so doing, we distinguished Frank S. on the grounds that “[u]nlike Frank S., . . . Margarejo transferred his illegal weapon to a fellow gang member, thus suggesting the weapon was a gang weapon.” (Ibid.)
As demonstrated by the Frank S. and Margarejo decisions, a gang enhancement allegation cannot be established unless there is some evidentiary connection between the crime and the gang apart from the fact that the defendant is a gang member. In a case where the defendant carries a weapon that is shared with fellow gang members, the jury can reasonably infer that the defendant’s possession of the weapon was for the benefit of the gang and with the intent to promote or further criminal conduct by the gang. (See Margarejo, supra, 162 Cal.App.4th at p. 111; People v. Garcia (2007) 153 Cal.App.4th 1499, 1507, 1511-1512 [sufficient evidence supported the gang enhancement finding on a gun possession charge where defendant told the police that the gun was given to him by another gang member for defendant’s protection].) Similarly, in a case where the defendant commits a crime with other gang members, the jury can readily infer that the crime was in association with a gang and with the intent to assist in criminal gang activity. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1333 [The evidence was sufficient to support a gang enhancement finding where “defendant, an admitted gang member sporting gang tattoos, actually committed the robbery with a gang confederate.”]; People v. Morales (2003) 112 Cal.App.4th 1176, 1179 [“The evidence that defendant knowingly committed the charged crimes in association with two fellow gang members was sufficient to support the jury’s findings on the gang enhancements.”].) In contrast, “the typical close case is one in which one gang member, acting alone, commits a crime.” (People v. Morales, supra, at p. 1198.) This is such a case.
While the majority relies on People v. Ferraez (2003) 112 Cal.App.4th 925, that case does not support the finding here. There, a known gang member was found in possession of narcotics in the territory of another gang. Like Coleman, he was not in the presence of other gang members and was not displaying any gang signs. However, the evidence established that he was present with the express permission of a gang friendly to his own. The court found that the testimony of the expert was insufficient in itself to support the finding, but that the other evidence presented, specifically the presence of the admitted gang member in the territory of a friendly gang with that gang's permission, was sufficient. 112 Cal.App4th at 931. Such supplemental evidence is what is lacking here: Coleman was in his own neighborhood, displaying no gang affiliation or intent. While the expert did testify concerning heightened activity in the days before a “hood holiday,” defendant was not in that rival gang’s territory at the time of his arrest and there was no evidence that he was planning to approach that territory, much less disrupt it. On this record, the gang expert's testimony about the defendant's intent was insufficiently supported by the evidence.
The prosecution relied exclusively on the expert testimony of Marin to establish that Coleman possessed a firearm “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.” (§ 186.22, subd. (b)(1).) Marin opined that a hypothetical gang member who possessed a gun within his gang’s territory near the territory of a rival gang and on the day before the rival’s “hood holiday” would possess that gun for the benefit of his gang. It was Marin’s opinion that guns benefit gangs because they are used to instill fear in the community, to protect a gang’s territory, and to enhance a gang member’s status within the gang. However, other than the circumstance that Coleman was arrested near the border of territory occupied by the Eight Trey Gangsters (Coleman’s gang) and the Rollin’ 60’s (a rival gang) a day before the Rollin’ 60’s “hood holiday,” there were no facts offered to support Marin’s conclusion that the gun possession in this case was connected to a gang.
First, there was no evidence that Coleman was associating with other gang members at the time of his arrest. Although a group of young men was congregated nearby, none of the men were interviewed by the police or otherwise identified as being gang members. Second, there was no evidence that Coleman had obtained the gun from a fellow gang member or that he attempted to transfer the gun to another gang member when he became aware of the police presence. Third, there was no evidence that Coleman was wearing distinctive gang attire, displaying gang symbols, or making gang signs during the incident leading to his arrest. Fourth, there was no evidence that Coleman ever showed his weapon in public or that anyone in his gang or in the community was aware that Coleman was carrying a gun. To the contrary, the arresting officer testified that Coleman initially had the gun concealed in his pants pocket and then attempted to hide the gun in a nearby car when he noticed the police. Finally, there was no evidence that Coleman or anyone else associated with him was planning to use the gun in any gang-related offense.
The prosecution thus failed to prove that Coleman’s possession of the gun had “‘some connection with the activities of a gang.’” (Frank S., supra, 141 Cal.App.4th at p. 1199.) Rather, the evidence merely established that Coleman was a gang member in his own neighborhood and territory and that he had a gun. This is not sufficient to support a gang enhancement finding under section 186.22, subdivision (b)(1). Because I conclude that the evidence was insufficient to show that the charged offense was committed “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,” I would reverse the jury’s true finding on the gang enhancement allegation. (§ 186.22, subd. (b)(1).)