Opinion
E059681
07-09-2018
THE PEOPLE, Plaintiff and Respondent, v. TOMMY JUNIOR DRIVER II, Defendant and Appellant.
Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1201484) OPINION APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Affirmed in part, reversed in part with directions. Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant Tommy Junior Driver II of possessing cocaine base for sale (Health & Saf. Code, § 11351.5) and found that the offense had been committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The jury acquitted defendant of a separate count of the substantive offense of gang participation (§ 186.22, subd. (a)), a crime sometimes also called "street terrorism." (E.g., People v. Williams (2009) 170 Cal.App.4th 587, 625, 626.) The trial court subsequently found true a prior strike conviction allegation (§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and denied a defense request to strike that strike. Defendant received an aggregate sentence of 13 years in prison.
Further undesignated statutory references are to the Penal Code.
In a previous nonpublished opinion, we affirmed the judgment, rejecting defendant's arguments that (1) the evidence was insufficient to support the gang enhancement, and (2) the evidence was insufficient to establish that his prior conviction was a serious or violent felony within the meaning of the Three Strikes Law, so as to qualify as a prior strike. (People v. Driver (Dec. 29, 2015, E059681 [nonpub. opn.].) In this opinion, at the direction of the California Supreme Court, we reconsider the matter in light of People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo). For the reasons stated below, we reverse the judgment with respect to the trial court's true finding on the prior strike conviction allegation and remand for a new determination on that issue. We affirm the judgment in all other respects.
II. FACTS AND PROCEDURAL BACKGROUND
Defendant was arrested on April 6, 2012, after a police officer discovered rock cocaine packaged for sale in a foam cup that defendant had been holding. Plaintiff was wearing a red belt and a baseball cap with a large letter "P" embroidered on it, clothing which a police gang expert later testified at trial was indicative of gang membership, specifically, the "Projects" gang. The arresting officers testified at trial that while defendant was being detained, he repeatedly yelled "the Projects got this," or obscene variants of that phrase. An arresting officer testified that when he asked defendant whether he belonged to a criminal street gang, defendant responded that he was a member of the Projects gang. Once defendant was transported to jail, in response to a classification deputy's questioning, defendant stated that he was a member of the "West Side Project Crips," and that he was "Projects until he dies," though he was "too old to gang bang, no longer doing gang stuff." Defendant had previously claimed to be a Projects gang member in jail classification interviews in May 2011, October 2011, and April 2012. He also had admitted Projects gang membership in previous documented contacts with police in November 2006, January 2007, April 2011, and May 2011.
The testifying police gang expert opined that defendant had been arrested in "neutral" territory, not within the territory of the Projects gang. The expert explained, in response to questions based on hypothetical circumstances that mirrored those of this case, that by committing crimes and shouting out their gang's name, gang members "try to intimidate not only the neighborhoods they are in, but the other gang members," and it benefits a criminal street gang when it is feared. By shouting out the gang's name in neutral territory, in particular, gang members indicate that "this is the gang and this is where they are from, and they are taking over this particular area." By doing so in front of police officers, the gang members show other gang members or rivals that they are "not afraid of law enforcement or their status within the gang." Once established in a neighborhood, the gang benefits from citizens being too afraid to report criminal activity by the gang itself. Also, the gang may be able to force others engaging in criminal activity in the area "to pay a tax in order to stay in their neighborhood."
At trial, defendant testified in his own defense. He admitted previously being an "associate" of the Projects gang—meaning that he "hang[s] out" with gang members—though he denied being a member himself, and denied committing crimes for the gang. He claimed that he had been holding the drugs for a friend, known as "Kool-Aid"—a gang member, but not a member of the Projects gang—who was in the area at the time of the arrest. Defendant testified that he had shouted out "I got you" and "I'm Projects" to tell Kool-Aid that, as a person who grew up in San Bernardino low-income housing (known as "the Projects"), he would comply with the code of "the streets" not to "snitch" to the police. He claimed to have been wearing the baseball cap with the letter "P" on it because he likes the baseball team the Philadelphia Phillies, and he likes the color red, though he acknowledged that clothing could identify him as a Projects gang member. He stated that he claimed to be a Projects gang member in jail classification interviews to "be housed with people that [he] knew."
Defendant also testified about his prior convictions, including a prior conviction for grossly negligent discharge of a firearm (§ 246.3). The following colloquy, relevant to the present appeal, took place on direct examination by defense counsel:
"Q You have a conviction, I believe, for negligent discharge of a firearm; is that right?
"A Yes.
"Q Shot the gun up in the air?
"A Yes.
"Q Had a bit too much to drink?
"A Yes."
During the bifurcated proceeding regarding defendant's prior conviction, the prosecution submitted a certified copy of the custodial records relating to defendant maintained by the Department of Corrections. It also submitted a copy of the plea agreement that defendant signed in San Bernardino Superior Court Case No. FSB038169 on March 5, 2003. One of the terms of the plea agreement is a standard warning of "other possible consequences" of the plea. The form directs the user to "[c]ircle applicable consequences." On defendant's plea agreement, "(b) Increased punishment for future felonies," "(c) Serious/violent felony ('strike')," and "(d) Reduced earning of custody credits" are circled.
We filed our previous nonpublished opinion in this matter, affirming the judgment, on December 29, 2015. On May 16, 2018, the California Supreme Court ordered the matter transferred to us with directions to vacate our decision and reconsider the cause in light of Gallardo, supra, 4 Cal.5th 120. On May 18, 2018, we issued an order vacating our previous opinion and inviting supplemental briefing by the parties. The People and defendant both submitted supplemental briefs.
III. DISCUSSION
A. Standard of Review.
When a criminal defendant contends the evidence was insufficient to support his conviction, "'we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]' . . . The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]."'" (People v. Cravens (2012) 53 Cal.4th 500, 507-508.) The standard of review for a challenge to the sufficiency of the evidence to support an enhancement is the same as that for substantive crimes. (See People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
B. Analysis.
1. The Jury's True Finding on the Gang Enhancement Is Supported by Substantial Evidence.
Defendant contends that the record lacks substantial evidence in support of the jury's true finding with respect to the gang enhancement. We disagree.
Section 186.22, subdivision (b)(1) enhances the punishment for 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 . . . ." (§ 186.22, subd. (b)(1).) "[T]he gang enhancement under section 186.22[, subdivision] (b)(1) requires both that the felony be gang related and that the defendant act with a specific intent to promote, further, or assist the gang . . . ." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1139.) Expert testimony alone is insufficient to find a drug offense is gang related. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931.) Rather, "the record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations . . . ." (People v. Martinez (2004) 116 Cal.App.4th 753, 762.) Nevertheless, expert testimony is appropriate to provide the jury with information regarding "gang sociology and psychology," including "'whether and how a crime was committed to benefit or promote a gang.'" (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
Viewed in the light most favorable to the judgment, the evidence supporting the jury's conclusion that defendant possessed drugs for the benefit of the Projects gang, and that he acted with the requisite specific intent to promote, further, or assist the gang, goes well beyond his "record of prior offenses and past gang activities or personal affiliations." (People v. Martinez, supra, 116 Cal.App.4th at p. 762.) It is also not limited to the expert testimony of the testifying police gang expert. (See People v. Ferraez, supra, 112 Cal.App.4th at p. 931.) As discussed in Part II, ante, defendant was arrested wearing gang attire, and as he was being arrested he made statements reasonably understood to announce gang affiliation; these facts are at least circumstantial evidence that his activities immediately prior to his arrest were committed with the requisite specific intent. (See People v. Rios (2013) 222 Cal.App.4th 542, 574 [gang clothing, calling out a gang name or otherwise stating gang affiliation, among other things, is evidence supporting inference of specific intent for gang enhancement].) Police expert testimony appropriately provided the jury with information about how defendant's criminal activity, though undertaken in "neutral" territory, could work for the benefit of the Projects gang. (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1550.) As such, substantial evidence supported the jury's verdict on the gang enhancement.
There was no evidence that defendant acted "at the direction of" or directly "in association with" the gang. (§ 186.22, subd. (b)(1).)
Defendant's arguments to the contrary falter on the requirement that the evidence be viewed in the light most favorable to the judgment. Even if the evidence might also have supported a different conclusion—the jury could have chosen to believe defendant's trial testimony providing an alternative, somewhat less culpable characterization of his actions, or could have chosen to draw more innocent conclusions from circumstantial evidence—the evidence adduced at trial was more than adequate to support the jury's verdict under the applicable, deferential standard of review.
2. The Trial Court's Finding that Defendant's Prior Conviction Qualifies as a Strike Must Be Reversed Under Gallardo.
Defendant contends that the trial court erred when it used facts outside the record of conviction to find that he had suffered a prior strike conviction. Applying the standards articulated in Gallardo, we agree.
A violation of section 246.3 qualifies as a prior serious felony, and thus a strike, where the defendant personally used a firearm. (§ 1192.7, subd. (c)(8) [defining prior "serious felony" to include "any felony in which the defendant personally uses a firearm" to commit the offense].) It is possible, however, to be convicted of violating section 246.3 "without personally using a firearm, e.g., as an aider and abettor." (People v. Golde (2008) 163 Cal.App.4th 101, 112.) The prosecution bears the burden of establishing beyond a reasonable doubt not only that defendant was convicted under section 246.3, but also that his conviction was based on personal use of a firearm, for that conviction to count as a serious felony and therefore a strike.
In Gallardo, the California Supreme Court held that a defendant's "constitutional right to a jury trial sweeps more broadly than our case law previously recognized: While a trial court can determine the fact of a prior conviction without infringing on the defendant's Sixth Amendment rights, it cannot determine disputed facts about what conduct likely gave rise to the conviction." (Gallardo, supra, 4 Cal.5th at p. 138.) The trial court's role is instead "limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea." (Id. at p. 136.)
Applying these principles to the present case, the fact defendant was convicted of violating section 246.3 does not, on its own, establish that defendant personally used a firearm in committing the offense. (People v. Golde, supra, 163 Cal.App.4th at p. 112.) While testifying in the present case, defendant admitted that he personally shot a gun up in the air. And his counsel, based on defendant's testimony, conceded that, "provided the defendant was the person who fired the weapon," a conviction under section 246.3 would qualify as a strike, albeit "just barely a strike." Neither defendant's testimony nor his counsel's argument, however, establishes that defendant admitted to having personally used a firearm as the factual basis for his guilty plea on his section 246.3 conviction. Unless the relevant facts were "admitted by defendant when entering [his] guilty plea," they may not "serve as the basis for defendant's increased sentence here." (Gallardo, supra, 4 Cal.5th at p. 137.)
In briefing on appeal, the People argue that defendant's 2003 plea agreement constitutes sufficient evidence that the section 246.3 conviction was a strike. We disagree. Defendant received an advisement that one of the "possible consequences" of his plea "may be" a "Serious/violent felony 'strike.'" It may be inferred from this advisement that the conviction was likely on the basis that defendant personally used a firearm; otherwise, a strike would not be one of the possible consequences of a conviction under section 246.3. (See People v. Golde, supra, 163 Cal.App.4th at p. 112.) Nevertheless, on the plea form, defendant was not unambiguously informed and did not explicitly admit that the conviction qualified as a strike.
In contrast, in another section of the 2003 plea form, the word "may" was stricken out by hand and replaced by the word "will," to indicate that the listed immigration consequences of defendant's plea were not possibilities, but certainties, if he is not a United States citizen. --------
Of course, section 969f, which became law on January 1, 1991, requires that when a defendant pleads guilty to a strike offense, "the question of whether or not the defendant committed a serious felony as alleged shall be separately admitted or denied by the defendant." (§ 969f.) It is therefore likely that defendant made the relevant admission when entering his 2003 guilty plea to the charged section 246.3 offense. (But see People v. Leslie (1996) 47 Cal.App.4th 198, 204 [addressing "the situation where the prosecution makes a 'serious felony' allegation that is not dealt with when a plea of guilt (or no contest) is entered"].) The record of the 2003 conviction presented by the prosecution in this case, however, lacks a transcript of the plea colloquy, during which such an admission may have been made orally. It is not apparent from our record whether such a transcript is unavailable or if the prosecution simply did not think it necessary, given defendant's admissions during his testimony and the then-current state of the law.
In their supplemental briefing, the People attempt to distinguish Gallardo, arguing that "[a]lthough Gallardo held that a trial court may not consider preliminary hearing transcripts to reach independent conclusions about what facts supported a prior conviction, it did not address the issue of admissions made under oath in a subsequent proceeding on direct examination." We disagree. The specific facts at issue in Gallardo involved the trial court's consideration of preliminary hearing transcripts from the underlying proceeding. (Gallardo, supra, 4 Cal.5th at p. 126.) The holding stated in Gallardo, however, is broad enough to encompass the facts of the present case, as well: In "considering whether to impose an increased sentence based on a prior qualifying conviction . . . [t]he court's role is . . . limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea." (Id. at p. 136.) We are required to apply the rule articulated by the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We conclude that, on the present record, there is insufficient evidence to conclude that defendant admitted that he personally used a firearm when entering his guilty plea for the 2003 conviction for violating section 246.3. The trial court's finding that defendant was convicted of a prior strike therefore must be reversed.
We turn, then, to the issue of "next steps." (Gallardo, supra, 4 Cal.5th at p. 137.) Defendant argues that the appropriate remedy is to "remand for a resentencing hearing where appellant is resentenced as a first strike offender." We disagree. In Gallardo, the Supreme Court found the appropriate remedy was a limited remand to permit the trial court to make "the relevant determinations" under the new standard for the scope of the inquiry. We decline to depart from this approach, particularly given the circumstance that the record of defendant's 2003 conviction is apparently incomplete, and perhaps could be supplemented on remand.
IV. DISPOSITION
The judgment is affirmed in part and reversed in part as follows: We reverse the trial court's true finding on the prior strike conviction allegation. The trial court is directed to "review the record of conviction in order to determine what facts were necessarily found or admitted in the prior proceeding" and, based on those facts, to make a new determination on the prior strike conviction allegation. (Gallardo, supra, 4 Cal.5th at p. 138-140.) Alternatively, if the prosecution elects not to retry the strike allegation, the trial court shall enter a "not true" finding. In any event, the trial court shall resentence defendant. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MCKINSTER
Acting P. J. MILLER
J.