Opinion
G043977 Super. Ct. No. 08CF3397
12-05-2011
THE PEOPLE, Plaintiff and Respondent, v. FREDDY HERNANDEZ FLORES, Defendant and Appellant.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Jennifer A. Jadovitz, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
Freddy Hernandez Flores appeals from a judgment after a jury convicted him of carrying a loaded unregistered firearm in public for the benefit of a criminal street gang. Flores argues the trial court erroneously denied his motion to suppress and insufficient evidence supports the street terrorism enhancement. We disagree and affirm the judgment.
FACTS
One dark evening in November near Chapman Avenue and Main Street in the City of Orange, Officer Fernando Maldonado, who had been on the police force less than one year, was on patrol. He spotted two men with short hair and baggie clothing riding bicycles that were not equipped with headlights. Maldonado stopped the bicyclists, Flores and Ivan Castellano. Officer Trevor Cullen arrived to assist Maldonado. Maldonado knew the area to be gang territory claimed by "Orange County Varrio Cypress" (OVC).
Maldonado observed Flores to be sweating and nervous. Maldonado asked both men if they were on probation or parole, and both responded, "No." Maldonado asked Flores if he could search him, and Flores replied, "No." As Maldonado asked them additional questions, Flores was nervous while Castellano was calm. Based on the area, Flores's demeanor, and Flores's clothing (a sweatshirt covered his waistband), Maldonado decided to do a pat-down search of Flores's clothing.
As Maldonado grabbed Flores's left hand to help him up from the curb, Flores quickly tried to put his right hand in his pocket. Maldonado grabbed Flores's right hand to put it behind his back and Flores said he had a loaded gun in his right pocket. Maldonado handcuffed Flores, retrieved the gun from his pocket, and gave the loaded gun to Cullen. Flores was not the registered owner of the gun. Maldonado also confiscated Flores's cellular telephone.
A few hours later, Maldonado and Detective Ted Taketa interviewed Flores at the police station. During the interview, Taketa looked through Flores's cellular telephone. The telephone's screensaver said, "Evil Ways," and the letters "E" and "W" were etched on the telephone. The telephone also had photographs of men displaying gang signs. The telephone locked, and when Taketa asked Flores for the password, Flores said he did not know the password and the telephone belonged to his mother. Flores claimed he purchased the gun four days earlier for $250. At the end of the interview, Taketa asked Flores to lift his shirt, and he observed the letter "E" was etched on Flores's belt buckle.
A few days later, Taketa and other officers executed a search warrant at Flores's residence. In one of the bedrooms, officers found cellular telephone bills in Flores's name and a hat with the letter "W" on it. Other indicia of gang membership was scattered throughout the house but none of it directly linked to Flores.
An information charged Flores with being a gang member who carried a loaded firearm in public (Pen. Code, § 12031, subd. (a)(1), (2)(C)) (count 1), carrying a loaded unregistered firearm in public (§ 12031, subd. (a)(1), (2)(F)) (count 2), and street terrorism (§ 186.22, subd. (a)) (count 3). The information alleged he committed counts 1 and 2 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code, unless otherwise indicated.
Before trial, the trial court dismissed count 3 on the prosecutor's motion.
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At trial, the prosecutor offered the testimony of Taketa, a criminal street gang expert, who had previously testified 15 times. After detailing his background, training, and experience, Taketa testified concerning the culture and habits of traditional, turf-oriented Hispanic criminal street gangs, including the importance of respect, the significance of guns and violence, and how to join a gang. Taketa explained a "gun is the tool of the trade for the gang." He explained a gang gun is a gun usually obtained illegally and passed from gang member to gang member to commit crimes and avoid confiscation by law enforcement. He added that the gang gun is usually given to a gang member who is not on probation because law enforcement officers cannot search the gang member. Taketa stated he was familiar with Evil Ways based on his investigation of crimes in Orange and through speaking with law enforcement officers and Flores's brother, Jose Flores (Jose). Taketa explained Evil Ways had 20 members; their identifying symbols were "EWK," "EW," "E," and "W"; and their primary activities were felony vandalism and illegal firearms possession. He also testified concerning the statutorily required predicate offenses. Taketa opined that at the time of the offenses, Evil Ways was a criminal street gang as statutorily defined.
Taketa also opined Flores was an active participant in Evil Ways at the time of the offenses based on the facts of the case, the indicia of gang membership found during the search of Flores's home, and Flores's prior contacts with law enforcement officers. Taketa stated gang members have recently begun denying gang membership because of the increased criminal penalties. He explained Evil Ways and OVC were allies and he had previously seen Flores wearing a T-shirt memorializing the death of an OVC gang member. Finally, Taketa explained the offenses benefit, further, or promote a criminal street gang because possession of the gun allows them to commit violent crimes that benefit the gang financially and instill fear and intimidation throughout the community.
Flores also offered Taketa's testimony. Taketa admitted Flores repeatedly denied gang membership during his interview. Taketa also stated Flores claimed he bought the gun because he had been assaulted when he was riding his bike home from work.
Flores also offered the testimony of his cousin and his brother, Jose. His cousin, Eddie Guillen, claimed ownership of the belt with the letter "E" on it. Jose claimed ownership of the gang paraphernalia located throughout the house and stated he was a member of Evil Ways when it was a party crew.
The jury convicted Flores of both counts and found true the enhancements. After vacating the conviction on count 1, the trial court sentenced Flores to three years of formal probation on the condition he serve 365 days in jail on count 2.
DISCUSSION
I. Motion to Suppress
Flores argues the trial court erroneously denied his motion to suppress evidence. We disagree.
"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.) To resolve whether evidence must be excluded because of a Fourth Amendment violation, "we look exclusively to whether its suppression is required by the United States Constitution. [Citations.]" (Id. at p. 363.)
Where, as here, a vehicle has been lawfully stopped for a traffic violation, a routine detention "must be temporary and last no longer than is necessary to effectuate the purpose of the stop." (Florida v. Royer (1983) 460 U.S. 491, 500.) "A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. [Citation.] An officer's inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. [Citation.]" (Arizona v. Johnson (2009) 555 U.S. 323, 333.)
An officer may detain the driver "for the period of time necessary to discharge the duties related to the traffic stop" (People v. Brown (1998) 62 Cal.App.4th 493, 497), ask questions not directly related to the purpose of the traffic stop as long as relevant time parameters are not exceeded (People v. Gallardo (2005) 130 Cal.App.4th 234, 239), and without articulable justification, order the driver to exit the vehicle (Knowles v. Iowa (1998) 525 U.S. 113, 117-118).
Moreover, "[c]ircumstances which develop during a detention may provide reasonable suspicion to prolong the detention. [Citation.]" (People v. Russell (2000) 81 Cal.App.4th 96, 102 (Russell).) "There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. [Citations.]" (Ibid., citing United States v. Sharpe (1985) 470 U.S. 675, 686-688 [20-minute investigative detention of suspected drug trafficker did not violate Fourth Amendment].) The same constitutional protections under the Fourth Amendment apply to bicyclists as to vehicles. (People v. Allen (2000) 78 Cal.App.4th 445, 450-451.)
Before trial, Flores filed a motion to suppress all statements and observations after the search and all evidence found at his home. At the hearing on the motion to suppress, Maldonado testified to the circumstances of the offenses as detailed above. In addition to those facts, Maldonado explained that after he told Flores and Castellano to sit on the curb, he asked them for their identification. Maldonado stated Flores produced identification but Castellano did not; Castellano provided his name and date of birth. Maldonado said he radioed in their identification information but neither of them had any outstanding warrants. Maldonado said Flores's right hand kept moving towards his right pocket. Maldonado stated he asked Flores if he had anything illegal and Flores responded, "No." Maldonado said that is when he asked Flores if he could search him and when Flores refused, Maldonado told Flores that he was going to search him for officer safety.
Defense counsel argued the issue was "limited" to "whether or not the pat-down search was justified by the circumstances." The trial court denied the motion, explaining: "The court believes that there was a reasonable suspicion for a pat-down search here, and the court believes that based upon the total circumstances that the court heard in this motion that we had here, and that was basically at 7:43 at night, dark in November, the officer is in gang area, [Flores] wearing baggy clothing; he was sweating, and his hand before the pat-down search was moving; it wasn't going towards the pocket, but it was moving more than the left hand. [¶] And based upon the totality of the circumstances -- you know, the court realizes that one of these standing alone is not going to require usually a pat-down search; but when you put all these, the totality of the circumstances in this case, the court believes there was enough evidence for the officer to do a pat-down search . . . ."
Here, Flores argues primarily that the detention was unreasonably prolonged. Relying on People v. McKay (2002) 27 Cal.4th 601, and Vehicle Code section 40302, subdivision (a), Flores claims that as soon as he produced a valid identification, Maldonado should have cited or warned him, and released him. Although we agree the McKay court interpreted Vehicle Code section 40302, subdivision (a), and held an offender may avoid a custodial arrest by producing a valid identification, the totality of the circumstances provided Maldonado with reasonable suspicion to prolong the detention.
Preliminary, the Attorney General contends Flores forfeited appellate review of this issue because he failed to specify it as a basis for his motion to suppress. We agree. When a defendant moves to suppress evidence under section 1538.5, the defendant must inform the prosecutor and the trial court of the specific basis for their motion. That did not happen here. Flores, in his motion to suppress, does not argue the detention was unreasonably prolonged. And, at the hearing on his motion, defense counsel informed the trial court the issue was a limited one, to "whether or not the pat-down search was justified by the circumstances." Thus, Flores forfeited appellate review of this issue. But to avoid the inevitable ineffective assistance of counsel claims, we will address it briefly.
Maldonado testified that as Flores sat on the curb he appeared nervous and he was sweating on a November evening. Maldonado explained that his right hand kept moving towards his right pocket. Based on our reading of the transcript of the suppression hearing, this occurred during the time Maldonado was determining whether Flores and Castellano had any outstanding criminal warrants or were on probation or parole. Flores's demeanor certainly provided Maldonado with a reasonable suspicion sufficient to prolong the detention to investigate whether Flores had any illegal contraband.
Russell, supra, 81 Cal.App.4th 96, is instructive. In that case, a police officer initially stopped a car for driving erratically. (Id. at pp. 99-100.) During the course of the stop, circumstances arose that prompted the officer's reasonable suspicion to prolong the stop. (Ibid.) These included a "masking" odor coming from the car, worn screws on the dashboard and upholstery that indicated the car had been disassembled, and defendant's red, watery eyes. (Ibid.) The court held the officer's continuation of the stop was justified because, in his 15 years of experience on the force, these factors indicated drug activity. (Ibid.) Maldonado's observations of Flores's demeanor were similar to those of the officer in Russell, and provided him with reasonable suspicion to prolong the detention.
Although Flores focuses almost entirely on whether the detention was unreasonably prolonged, he claims in passing the detention was "unlawful." Again, we disagree.
Stopping a person for a Vehicle Code violation, even if done as a pretext to investigate some other unlawful conduct, is legally justified. (People v. Gomez (2004) 117 Cal.App.4th 531, 538.) Here, Maldonado stopped Flores because he was riding his bicycle at night without a front lamp, which was a Vehicle Code violation. (Veh. Code, § 21201, subd. (d)(1).) This was a valid detention. Maldonado testified Flores had a shaved head, wore baggy clothing, and rode his bicycle through claimed OVC gang territory. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1241 (Frank V.) [reputation of an area for criminal activity and increased gang activity one articulable factor upon which officer may rely].) After Maldonado stopped Flores and Castellano, Maldonado testified Flores was nervous and sweating, could not articulately answer his questions, and kept moving his right hand to his right pocket. Based on these specific and articulable facts, it was certainly reasonable for Maldonado to pat search Flores for weapons for his and Cullen's safety. (Terry v. Ohio (1968) 392 U.S. 1, 30.)
Frank V., supra, 233 Cal.App.3d 1232, is instructive. In that case, minor was a passenger on a motorcycle outside a house known for gang activity on a street in an active gang area. He had his hands in the pockets of a bulky leather jacket when the police approached. He removed his hands at the officer's request. As he tried to put his hands back in his pockets, the officer told him not to. The officer pat searched the minor and found a weapon. (Id. at p. 1237.) The court held that while the factor that an area is one of increased gang activity may not alone justify a weapon search, minor's decision to put his hands back into his pocket "provided an 'additional factor'" justifying the pat search in that case. (Id. at p. 1241.) Here, based on the totality of the circumstances, Maldonado was justified in patting down Flores for officer safety.
II. Sufficiency of the Evidence
Flores contends insufficient evidence supports the jury's finding he committed count 2 for the benefit of a criminal street gang. We disagree.
"In considering a challenge to the sufficiency of the evidence . . . , [the appellate court] review[s] the entire record in the light most favorable to the judgment to determine whether it contains 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. [Citation.] [It] presume[s] every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
"[A]ny 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished . . . ." (§ 186.22, subd. (b)(1).)
Flores first argues Taketa was not qualified to render an opinion on whether Evil Ways was a criminal street gang and there was insufficient evidence Evil Ways was a criminal street gang. The Attorney General replies Flores did not object at trial to Taketa's qualifications and thus his claim is forfeited. We agree with the Attorney General. (People v. Lewis (2008) 43 Cal.4th 415, 503 [defendant forfeited claim because he did not object to expert's qualifications].) In any event, Taketa testified he was familiar with Evil Ways from crimes Evil Ways committed in Orange and from speaking with other officers. This was sufficient foundation for Taketa to qualify as an expert in criminal street gangs. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 ["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"].) As to Flores's sufficiency of the evidence claim, Taketa testified concerning Evil Ways' current membership, its common symbols, its primary activities, and some of its criminal history. Although Evil Ways was a Garden Grove based criminal street gang and Taketa had spoken with only one Evil Ways gang member, his testimony concerning the gang was sufficient evidence for the jury to give credence to Taketa's expert opinion Evil Ways was a criminal street gang at the time of the offenses. (People v. Miranda (2011) 192 Cal.App.4th 398, 413 [sufficient evidence in part from gang expert testimony].)
Flores next contends there was no evidence he committed count 2 for the benefit of a criminal street gang. Not so.
Section 186.22, subdivision (b)(1), does not criminalize mere gang membership. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.) As clarified by Albillar, supra, 51 Cal.4th at page 60, although not every crime committed by gang members is related to a gang for purposes of the first prong, a crime can satisfy the first prong when it is committed in association with the gang, or when it is committed for the benefit of the gang. The Albillar court also explained the second prong, which required the defendant commit the gang-related felony "with the specific intent to promote, further, or assist in any criminal conduct by gang members" (§ 186.22, subd. (b)(1)), need not encompass proof the defendant committed the crime with the specific intent to promote, further, or assist other criminal conduct by gang members. Instead, that subdivision "encompasses the specific intent to promote, further, or assist in any criminal conduct by gang members—including the current offenses—and not merely other criminal conduct by gang members." (Albillar, supra, 51 Cal.4th at p. 65.) The Albillar court stated a gang expert's opinion is admissible as part of the evidentiary showing on how the crimes can benefit the gang. (Id. at p. 63.)
Here, Flores was in allied gang territory armed with an illegal weapon while wearing a belt buckle emblazoned with the letter "E," one of Evil Ways' common symbols. During Flores's interview, Taketa inspected Flores's cellular telephone and saw the screensaver said, "Evil Ways," the letters "E" and "W" were etched on the telephone, and the telephone had photographs of men displaying gang signs. The jury heard evidence law enforcement officers found indicia of gang membership throughout Flores's house. Taketa testified illegal gun possession was a primary activity of Evil Ways. He explained a "gun is the tool of the trade for the gang" and a gang gun is usually obtained illegally and passed from gang member to gang member to commit crimes and avoid being confiscated by law enforcement. Taketa also explained a gang member who is not on probation is likely to carry the gang gun because law enforcement officers cannot search the gang member; Flores was not on probation or parole. This was sufficient evidence for the jury to reasonably conclude Flores committed count 2 for the benefit of a criminal street gang.
Flores relies on People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), and Frank S., supra, 141 Cal.App.4th 1192, to argue there was no evidence he committed count 2 with the specific intent to benefit Evil Ways. Ramon and Frank S. are inapposite.
In Ramon, supra, 175 Cal.App.4th 843, defendant was convicted of, among other things, receiving a stolen vehicle and possession of a firearm by a felon. The court found the evidence the perpetrators were gang members and the crime was committed in the gang's territory was insufficient to support the gang enhancement. (Id. at p. 852.) The court noted its analysis might be different if the expert's opinion had included possessing stolen vehicles as one of the gang's activities. (Id. at p. 853.) Here, Taketa testified one of Evil Ways' primary activities was illegal firearm possession.
In Frank S., supra, 141 Cal.App.4th 1192, there was insufficient evidence to support a gang enhancement on a finding minor carried a concealed dirk or dagger where the prosecution "did not present any 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.) Here, by contrast, Flores was in allied gang territory, he possessed an illegal weapon, one of Evil Ways' primary activities, and he had indicia of gang membership. Thus, based on the entire record, there is sufficient evidence supporting Flores's conviction under both the federal and state constitutional due process clauses. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576-577.)
DISPOSITION
The judgment is affirmed.
O'LEARY, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.