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People v. Garcia

California Court of Appeals, Second District, Third Division
Jul 17, 2008
No. B200417 (Cal. Ct. App. Jul. 17, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA313087, Jose I. Sandoval, Judge.

Michele A. Douglass, 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, Assistant Attorney General, Victoria B. Wilson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.


KITCHING, J.

Ismael Garcia appeals the judgment entered following his conviction by jury of possession of an unregistered loaded firearm, possession for sale of marijuana and transportation of marijuana. (Pen. Code, § 12031, subd. (a)(1); Health & Saf. Code, §§ 11359, 11360, subd. (a).) The jury found Garcia committed the Health and Safety Code violations for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1)(A). The trial court sentenced Garcia to a term of six years in state prison.

We reject Garcia’s claims of error and affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

1. Trial evidence.

The evidence adduced by the People at trial consisted of the testimony of a criminalist and the arresting officer, Los Angeles Police Officer Sal Flores, who also testified as an expert in the area of criminal street gangs.

a. Flores’s expert testimony.

Flores has been assigned to the Hollenbeck Division for approximately seven years and has been a member of CLEAR, a federally funded program addressing gang activity, for approximately four years. Flores testified criminal street gangs instill fear in the neighborhood in which they operate to prevent the residents from reporting crimes committed by the gang which include graffiti, vandalism, assault with deadly weapons, extortion, robbery, rape, burglary from motor vehicles, car theft, murder and drug sales. Money earned from these enterprises is used for parties and to purchase narcotics for the gang’s use and for distribution. Money earned from these activities also goes into a pool from which taxes are paid to the Mexican Mafia, the prison gang. Based on graffiti Flores had seen, Flores believes Garcia’s gang is connected with the Mexican Mafia. Flores had never been told that Garcia specifically contributes funds to the gang. However, a member of Garcia’s gang known as Creeper told Flores the gang pays taxes to the Mexican Mafia. Association with the Mexican Mafia is beneficial to the gang in many ways and is especially helpful for any gang member who is sentenced to prison.

There are four criminal street gangs that operate in the Hollenbeck area. Garcia’s gang controls the area of the Wyvernwood Apartment complex. Directly across the street from the Wyvernwood Apartments is the territory of a rival gang. Grande Vista Avenue divides the two territories. Gangs try to expand their turf in order to enhance their power and increase their profits from criminal activities such as drug sales.

Gang members are proud of their allegiance and are generally willing to admit gang membership. Prior to November 22, 2006,Flores had four or five contacts with Garcia, all of which had occurred in the vicinity of the Wyvernwood Apartment complex. Garcia previously told Flores that he had been a member of the gang for between five to eight years and his moniker was Chema. Flores had never seen Garcia outside the gang’s territory.

b. The arrest of Garcia.

On November 22, 2006, Flores saw Garcia, an amputee, walking with crutches on Eighth Street near Euclid Avenue. This location is considered an unoccupied area in that three of the gangs operating in the area, including Garcia’s gang, “think they own it.” Across the street from where Florez stopped Garcia, Garcia would have been inside the Wyvernwood Apartment complex. The other side of the street, however “is a gray area. . . . They are all trying to dominate that area.”

Garcia was dressed in typical gang attire, a white baggy T-shirt, baggy gray short pants and his head was recently shaved. Flores did not see Garcia speak to anyone or interact with anyone. Flores asked if Garcia was still on probation and Garcia indicated he was. When Flores asked if Garcia had anything he should not have, Garcia indicated, “I have a gun in my pocket.” Flores retrieved a loaded .22-caliber handgun from Garcia’s pants pocket.

On cross-examination, Flores indicated Garcia was on summary probation for a misdemeanor drug offense.

Garcia was carrying a backpack that bore a gang insignia. The backpack contained a digital scale and four bags of marijuana with a net weight of 55.45 grams. Flores formed the opinion Garcia possessed the marijuana for the purpose of sale based on the amount of marijuana in the backpack, the presence of the digital scale and the absence of any paraphernalia for personal consumption of marijuana. Flores also considered the location of Garcia’s arrest and his possession of a weapon for protection either from rival gang members or to prevent robbery.

Flores testified in response to a hypothetical question based on the facts of this case that Garcia was in a “gray area. He is carrying a concealed weapon that from my experience gang members will use to defend themselves or so they can commit crimes. . . . [W]hatever money . . . he gets from this sale of this narcotic will in fact not only benefit himself, but benefit [his] gang . . . . Not only will he be able to purchase possibly more narcotics . . . to distribute to . . . make more money . . ., not only will he contribute his funds to the main gang fund which pays off taxes to the Mexican Mafia, but it will also represent the gang by being in the gray area. In fact, showing to other rival gang members that he is going to sell narcotics wherever he wants, which ultimately puts that gang further up on the ladder and shows us a greater disrespect to rival gangs and shows a threat to the community, saying, you know what, I could sell narcotics wherever I please. I could do what I want, where I want. If you guys want a piece of me, here I am. I am willing to basically die for what I believe in, which is that particular gang.”

If Garcia’s gang is able to occupy the unclaimed area, they will increase their narcotics sales and will be able to solicit more gang members, extending from “possibly 200 to 300 [members] to 400.” Flores would classify Garcia as a “very active” gang member. Garcia is present in the area year after year even though he does not reside there.

c. The predicate acts element of the criminal street gang enhancements.

On July 25, 2004, Ivan Delgado, a member of Garcia’s gang, was convicted of robbery with a criminal street gang enhancement.

On August 14, 2004, Christian Mejia, a member of Garcia’s gang, was convicted of assault on a peace officer. Flores was the victim in that case.

2. Verdicts and sentencing.

The jury found Garcia guilty of unlawful possession of a loaded firearm in count 1, but found not true an allegation the offense was committed for the benefit of a criminal street gang. The jury found Garcia guilty of the drug offenses charged in counts 2 and 3 and found criminal street gang enhancements associated with those counts true.

The trial court sentenced Garcia to the middle term of three years on count two, plus a consecutive three-year enhancement under Penal Code section 186.22, subdivision (b)(1)(A), for a total term of six years in state prison.

CONTENTIONS

Garcia contends the evidence does not support the criminal street gang enhancements, the gang expert’s opinion as to Garcia’s intent at the time of his arrest should have been excluded, and admission of evidence that Garcia owned two large caliber firearms was irrelevant and prejudicial.

DISCUSSION

1. The evidence supports the criminal street gang enhancements.

Garcia contends the criminal street gang enhancements associated with the Health and Safety Code violations must be set aside for want of sufficient evidence to support the true findings. Garcia argues gang membership alone is insufficient to demonstrate that a crime committed by a gang member was committed for the benefit of the gang. (See People v. Robles (2000) 23 Cal.4th 1106, 1115.) Garcia notes the charged offenses did not take place in gang territory, Garcia was not in the company of other gang members, and Garcia did not flash gang signs, yell gang slogans or volunteer that he intended to sell marijuana or that he was acting for the benefit of his gang. Garcia points out that Flores did not see Garcia selling or attempting to sell marijuana. Garcia argues it is unlikely he intended to sell marijuana at the time of his arrest in that he had no baggies that he could have used to package any marijuana he might have weighed and sold.

Garcia invokes the rule that the opinion of an expert that a defendant acted for the benefit of a gang is insufficient, without more, to support a criminal street gang enhancement. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199; People v. Ferraez (2003) 112 Cal.App.4th 925, 931.) Although Ferraez affirmed a criminal street gang enhancement, in that case, in addition to the expert’s opinion, the defendant admitted gang membership and admitted he had received permission from an associated gang to sell drugs at a swap meet. Garcia notes there is no similar evidence in this case and concludes the true findings on the criminal street gang enhancements must be reversed.

We do not find Garcia’s arguments persuasive. “To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or [enhancement] beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict – i.e., evidence that is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] . . . A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

The cases cited by Garcia convince us the true findings on the criminal street gang enhancements must be affirmed. In People v. Ferraez, supra, 112 Cal.App.4th 925, the defendant, an admitted gang member, was arrested for selling rock cocaine. The defendant said he had permission from another gang to sell the drugs at the location at which he was arrested. A gang expert testified the gang benefited from drug sales through the purchase of guns or more drugs or as bail for fellow gang members. (Id. at p. 928.) The expert also testified that drug sales enhance the gang’s reputation. (Ibid.)

Ferraez found the “gang expert’s testimony was necessary to explain to the jury how a gang’s reputation can be enhanced through drug sales and how a gang may use the proceeds from such felonious conduct,” and therefore the matters were properly admissible under Evidence Code section 801. (People v. Ferraez, supra, 112 Cal.App.4th at pp. 930-931.) The court went on to note that “[u]ndoubtably, the expert’s testimony alone would not have been sufficient to find the drug offense was gang related.” (Id. at p. 931.) But because the expert’s testimony was coupled with other evidence from which the jury could reasonably infer the crime was gang related, there was sufficient evidence to find that the drug offense was gang related.

Here, as in Ferraez, Flores’s expert opinion testimony that Garcia acted for the benefit of his gang was coupled with other evidence from which the jury reasonably could infer the crime was gang related. Flores testified Garcia, a known and “very active” member of his gang, wearing full gang attire with a freshly shaved head, entered disputed territory adjacent to his gang’s stronghold with a digital scale and approximately two ounces of marijuana in a backpack that bore one of his gang’s insignias.

Twenty-eight grams equals one ounce.

Garcia argues he had no baggies to package any marijuana he may have sold. However, the marijuana Garcia possessed already was packaged into four separate baggies, each of which was available for sale or distribution to others. Thus, Garcia did not need additional baggies in order to sell the marijuana within the meaning of Health and Safety Code section 11359. (See People v. Peck (1996) 52 Cal.App.4th 351, 357.) The fact Flores did not see Garcia engage in any attempt to sell the marijuana does not suggest Garcia was not transporting marijuana as charged in count 2 or possessing the marijuana with the intent to sell as charged in count 3. Based on Flores’s testimony that Garcia’s gang sold drugs to obtain money for its own use and to pay taxes to the Mexican Mafia, the jury reasonably could conclude that Garcia’s transportation of marijuana and possession of it with the intent to sell evinced substantial involvement in the process by which his gang distributed marijuana for profit.

This case also is distinguishable from In re Frank S., supra, 141 Cal.App.4th 1192. There, a minor had a knife, a small bindle of methamphetamine and a red bandana. The minor said he had been attacked two days earlier and he needed the knife for protection against gang members who believed several of his friends belonged to a rival gang. (Id. at p. 1195.) A gang expert testified the minor was an active member of the rival gang and that he had the knife to protect himself, which benefited his gang. (Id. at pp. 1195-1196.) The minor claimed there was insufficient evidence to support the gang enhancement. (Id. at pp. 1194-1195.)

In re Frank S agreed and “emphasize[d] that crimes may not be found to be gang-related based solely upon a perpetrator’s criminal history and gang affiliations.” (In re Frank S., supra, 141 Cal.App.4th at p. 1195.) In re Frank S. held that “the expert simply informed the judge of her belief of the minor’s intent with possession of the knife, an issue reserved to the trier of fact.” (Id. at p. 1199.) It also noted that “[t]he 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.” (Ibid.) “To allow the expert to state the minor’s specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.” (Ibid.)

In the case before us, the prosecution presented significantly more evidence in support of the gang enhancement including Flores’s explanation as to how commission of the charged offenses benefited Garcia’s gang. In sum, there was sufficient evidence to support the jury’s finding Garcia intended to promote, further or assist his gang. (People v. Zamudio, supra, 43 Cal.4th at p. 357.)

2. Flores’s expert opinion was properly admitted.

Garcia contends the trial court should have excluded Flores’s testimony that Garcia subjectively intended to sell marijuana at the location where he was arrested and thereafter to turn over a portion of the profits to his gang. Garcia relies on the rule that expert opinion testimony “that a specific individual possessed a specific intent” is not allowed. (In re Frank S., supra, 141 Cal.App.4th at p. 1197; People v. Killebrew (2002) 103 Cal.App.4th 644, 657-658.) Garcia concedes defense counsel failed to object on this specific ground. However, Garcia asserts the failure to do so constituted ineffective assistance of counsel. Garcia concludes the true findings on the criminal street gang enhancements must be reversed.

Garcia has waived any objection to this testimony by failing to object. (People v. Rundle (2008) 43 Cal.4th 76, 116.) However, even if we address the merits of the contention to forestall a claim of ineffective assistance of counsel, no reversible error appears.

An expert may testify with respect to any subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code, § 801, subd. (a).) The culture and habits of criminal street gangs falls into this category. (People v. Gardeley (1996) 14 Cal.4th 605, 617.) Further, a gang expert properly may express an opinion that a crime is gang related. (People v. Gonzalez (2006) 38 Cal.4th 932, 944-946; People v. Ferraez, supra, 112 Cal.App.4th at p. 930.) Generally, experts state their opinion based upon facts given in a hypothetical question; however, the hypothetical must root itself in facts shown by the evidence. (People v. Gardeley, supra, at p. 618.) We review a trial court’s ruling on the admission of expert testimony for an abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1222.)

Here, in accordance with the foregoing authorities, Flores testified in response to a hypothetical question based on the facts of this case that Garcia’s crimes were gang related. Under Gardelely, such testimony is admissible. Indeed, “[t]his testimony was quite typical of the kind of expert testimony regarding gang culture and psychology that a court has discretion to admit.” (People v. Gonzalez, supra, 38 Cal.4th at p. 945.)

People v. Killebrew, the case on which Garcia primarily relies, is distinguishable. The objectionable testimony in Killebrew consisted of the expert’s opinion that “each of the individuals” in three different cars knew there was a gun in two of the cars and each individual “jointly possessed the gun with every other person in all three cars for their mutual protection.” (People v. Killebrew, supra, 103 Cal.App.4th at p. 658.) The expert also testified “that when one gang member . . . possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun.” (Id. at p. 652.) Killebrew noted there was nothing in the evidence to support this opinion. Further, this testimony improperly addressed the subjective knowledge and intent of each individual in each vehicle. Because the expert’s testimony was based on nothing more than the expert’s opinion as to how the case should be decided and was the only evidence offered to establish the knowledge element of the charged offense of conspiracy, reversal was required. (Id. at pp. 658-659.)

Here, Flores did not testify that Garcia possessed a specific intent. Rather, Flores answered a hypothetical question based on the facts of this case. The answer reflected his experience as an expert with respect to the gang activity in the Hollenbeck Division. This testimony did not invade the province of the jury. Flores explained to the jury the basis for his opinion that Garcia acted for the benefit of his gang. The trial court committed no abuse of discretion in admitting this opinion testimony under Evidence Code section 801. (People v. Prince, supra, 40 Cal.4th at p. 1222.)

3. Admission of the Department of Justice certificate does not require reversal.

As part of the proof of the charged violation of Penal Code section 12031, subdivision (a)(1), the People offered into evidence a Department of Justice (DOJ) certificate which indicated the .22-caliber weapon recovered in this case was not registered. The prosecutor explained that, in checking the registration of the recovered weapon, the DOJ also ran Garcia’s date of birth through the computer and found two .357 Magnums registered to him. The DOJ certificate that contained all of this information constituted the People’s proof the gun recovered was not registered. The trial court admitted the DOJ certificate into evidence under the public record exception to the hearsay rule.

When the People thereafter argued the certificate showed Garcia purposely carried an unregistered gun at the time of his arrest because he was engaging in unlawful and dangerous activity, namely, drug sales in a disputed gang territory, the trial court overruled Garcia’s objection.

On appeal, Garcia contends the DOJ certificate should have been redacted to eliminate the irrelevant and prejudicial evidence that Garcia owned two .357 Magnums. (People v. Simms (1970) 10 Cal.App.3d 299, 312-313; Evid. Code, § 352.) Garcia argues his ownership of two large caliber handguns was not relevant, cast him in a criminal light and invited the jury to speculate he was the sort of person who would sell drugs for a gang and engage in lethal confrontations to advance the interests of his gang. This evidence supported the expert’s speculative testimony related to Garcia’s intent and contributed to the tainted evidence on which the criminal street gang enhancement relied. Garcia concludes the cumulative effect of the errors committed by the trial court lightened the prosecutor’s burden of proof and requires reversal of the true finding on the gang enhancements.

Garcia’s contention lacks merit. The DOJ certificate was relevant and admissible to prove Garcia was carrying a loaded firearm that was not registered. Further, even assuming the certificate should have been redacted to omit reference to the .357 Magnums registered to Garcia, reversal is not required in that the information contained in the certificate was not entirely prejudicial to Garcia. Indeed, defense counsel argued to the jury that if Garcia was an active gang member as the People claimed, he would not register any guns. Moreover, in light of the substantial evidence that showed Garcia committed the drug offenses for the benefit of his gang, redaction of the DOJ certificate would not have altered the result at trial. Consequently, any error must be seen as harmless. (See People v. Lewis (2008) 43 Cal.4th 415, 506-507.)

DISPOSITION

The judgment is affirmed.

We concur: CROSKEY, Acting P. J., ALDRICH, J


Summaries of

People v. Garcia

California Court of Appeals, Second District, Third Division
Jul 17, 2008
No. B200417 (Cal. Ct. App. Jul. 17, 2008)
Case details for

People v. Garcia

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ISMAEL GARCIA, Defendant and…

Court:California Court of Appeals, Second District, Third Division

Date published: Jul 17, 2008

Citations

No. B200417 (Cal. Ct. App. Jul. 17, 2008)