Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 02NF2937, M. Marc Kelly, Judge.
James R. Bostwick, Jr., 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, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant John Michael Costales was convicted by a jury of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); all further statutory references are to this code) and resisting an executive officer (§ 69). The jury found that these crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In a bifurcated proceeding, the court found that defendant had suffered three “strike” convictions (§§ 667, subds. (d) and (e)(2)(A), 1170.12, subd. (b) and (c)(2)(A)) and had suffered two previous serious felony convictions (§ 667, subd. (a)(1)). The court struck two of the prior strike convictions for sentencing purposes and imposed a 19-year prison term on defendant. The court computed the sentence as follows: two years on possession of a firearm by a felon, doubled under the “Three Strikes” law, plus five years for the gang enhancement on that count, plus two five-year terms for the prior serious felony findings. The court imposed a concurrent sentence on the count for resisting an executive officer and, for purposes of sentencing, the court struck the gang enhancement on that count.
Defendant contends on appeal that the gang enhancement to the crime of resisting an executive officer must be set aside as unsupported by substantial evidence. He also contends that imposition of the gang enhancement under section 186.22, subdivision (b)(1)(B) and the imposition of two enhancements under section 667, subdivision (a) were improper. We agree with the first and second contention but disagree the section 667, subdivision (a) enhancements were improper. We therefore order the trial court to resentence defendant.
FACTS
Late in the evening, the police received a report from Camarino Gonzalez Tenorio, who stated that while he was seated in a parked car near his house, a person drove up and parked in front of him. The driver of the other car pointed a handgun at Tenorio and yelled “Anaheim Vato Locos.” The speaker then identified himself as “Criminal” and asked Tenorio where he was from; the latter query is a street gang challenge.
Based on information furnished by another officer, Sergeant Timothy Miller drove to the area where the encounter had taken place, looking for a light brown or gray Chevrolet Celebrity. He saw a vehicle matching this description, without headlights, occupied by defendant and a woman. Miller radioed other officers to arrange for the establishment of a perimeter around the neighborhood. After officers had located and detained the car, Miller was sent there and parked his car in front of the one containing defendant, who was in the passenger seat. After Miller left his car and identified himself as a police officer, defendant opened his door and started to run. While running away, defendant placed his right hand into the front of his pants, seeming to try and retrieve something. The chase ended when defendant tripped and was tackled by Miller.
After hitting the ground, defendant resisted the officers’ order to show his hands; he kept them concealed in his pants. Eventually, the officers were able to subdue defendant, pull his hands from his pants, and handcuff his hands behind his back. They found a loaded.38 caliber revolver in the front of defendant’s pants.
Sergeant Charles Sullivan testified as a gang expert. He stated that Anaheim Vatos Locos, also known as A.V.L.S., is an Anaheim gang operating in the area where the above described events took place. Sullivan had 25 to 30 contacts with defendant, who identifies himself as “Criminal.” Sullivan opined that an encounter such as that described by Tenorio, where a gang member points a weapon, identifies his gang membership, and challenges another to identify his gang, would be done to promote and benefit his gang. The challenge promotes the violent reputation of the gang to the general community as well as the gang community. It is a form of intimidation and enhances the reputation of a violent gang.
The prosecutor posed questions to Sullivan using hypothetical facts based on the encounter between defendant and the police officers where he was apprehended after running from his car. Sullivan was then asked “[d]oes that conduct, would that conduct, if done by a gang member, be done for the benefit of that person’s criminal street gang?” Sullivan’s response: “I’m not sure if he is doing it for the benefit of the street gang, he may be doing it for the benefit of himself to enhance his status. It may enhance the gang’s status at some point. But I am not sure if it would, I guess you could think of it as a benefit in some respects.” He then went on and, over objection, testified that if a person in defendant’s position had shot the police officer, his reputation in the street gang community “would be enhanced 10-fold.”
DISCUSSION
1. The Gang Enhancement to the Count for Resisting an Executive Officer
We agree with defendant that the gang enhancement under section 186.22, subdivision (b)(1) to his conviction for resisting an executive officer (count 4) cannot stand as it is unsupported by substantial evidence. The gang expert’s testimony does not support it; Sullivan opined that he was “not sure if he is doing it for the benefit of the street gang, he may be doing it for the benefit of himself to enhance his status.” His subsequent testimony that, had a gang member shot a policeman, his reputation in the gang community would be greatly enhanced, does not relate to the evidence presented in the case. The Attorney General’s argument is predicated on a contention that defendant attempted to shoot a police officer and that such conduct would promote the status of the gang. But defendant did not shoot or attempt to shoot a policeman; he was neither charged with such a crime nor does the evidence support it. There is no other evidence supporting the enhancement and we must reverse it.
2. The Gang Enhancement for Possession of a Firearm by a Felon
As to the count for possession of a firearm by a felon, defendant asserts the statutory provision does not apply to him and the court should therefore not have imposed five-year terms for the gang enhancement. Rather the court should have imposed either two, three, or four-year terms under section 186.22, subdivision (b)(1)(A). The Attorney General, in a letter brief we invited, concedes this and we agree.
Section 186.22, subdivision (b)(1)(B) imposes an additional term of five years on a “person who is convicted of a felony 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” if the crime “is a serious felony, as defined in subdivision (c) of Section 1192.7.” Subdivision (c)(28) of the latter statute defines a “serious felony,” as “any felony offense, which would also constitute a felony violation of Section 186.22.” People v. Briceno (2004) 34 Cal.4th 451 (Briceno), held that section 186.22, subdivision (b)(1)(A), (B), and (C) speak to an event that occurs in the current proceeding (id at p. 465), while “[s]ection 1192.7, subdivision (c)... comes into play only if the defendant reoffends, at which time any prior felony that is gang related is deemed a serious felony. (Ibid.)
Because the underlying offenses, possession of a firearm by a felon
(§ 12021, subd. (a)(1)) and resisting an executive officer (§ 69), do not otherwise qualify as a “serious felonies,” the enhancement under section 186.22, subdivision (b)(1)(B) does not apply; subdivision (b)(1)(A) applies and the proper punishment is “an additional term of two, three, or four years at the court’s discretion.”
3. The Imposition of Two Enhancements Under Section 667, Subdivision (a)
Defendant argues that Briceno also compels the conclusion that the five-year enhancements under section 667, subdivision (a) may not be imposed. Section 667, subdivision (a) requires that a “person convicted of a serious felony who previously has been convicted of a serious felony... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction....” But the analysis under section 667 differs from the analysis under section 186.22, subdivision (b)(1)(B). As noted in People v. Martinez (2005) 132 Cal.App.4th 531, 536-537 and People v. Bautista (2005) 125 Cal.App.4th 646, 657, there is no impermissible dual use of gang conduct under section 667. (Also see People v. Coronado (1995) 12 Cal.4th 145, 156-158 and People v. Bautista, supra, 125 Cal.App.4th at p. 657.)
DISPOSITION
The jury’s verdicts finding appellant guilty on counts 1 and 4, the true finding as to the criminal street gang enhancement on count 1, plus the trial court’s findings on the status of appellant’s prior convictions are affirmed. The jury’s true finding as to the criminal street gang enhancement on count 4 is reversed with direction to vacate the finding. The sentence imposed for the criminal street gang enhancement on count 1 is reversed and the matter is remanded to resentence defendant on that finding under section 186, subdivision (b)(1)(A).
WE CONCUR: MOORE, J., IKOLA, J.