Opinion
G044288 Super. Ct. No. 09CF2713
12-08-2011
THE PEOPLE, Plaintiff and Respondent, v. SERGIO JESSE GONZALEZ, Defendant and Appellant.
David McNeil Morse, 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, Steve Oetting and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 D. Conley, Judge. Affirmed.
David McNeil Morse, 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, Steve Oetting and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Sergio Jesse Gonzalez of possession of marijuana for sale (Health & Saf. Code, § 11359), sale of marijuana (Health & Saf. Code, § 11360, subd. (a)), sale of marijuana to a minor (Health & Saf. Code, § 11361, subd. (a)), and street terrorism (Pen. Code, § 186.22, subd. (a); all further statutory references are to this code). The jury also found true that each of the drug offenses were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The trial court dismissed the sale of marijuana charge as a lesser included offense of sale of marijuana to a minor, suspended imposition of sentence and placed defendant on three years' formal probation one condition being he serve 180 days in county jail.
On appeal, defendant challenges the sufficiency of the evidence to support his conviction for street terrorism and the true findings on the criminal street gang enhancements. Finding no error, we affirm.
FACTS
Defendant lived in an apartment with other family members, including his brother, Manuel Gonzalez, a member of the Orange County Criminals (OCC) street gang. The apartment is located in an area claimed by OCC as its territory.
Detective Miguel Cuenca conducted a surveillance of the apartment and saw Miguel Lopez, another OCC gang member who used the nickname "Baby Shadow," enter it. Thereafter, a minor named E.L. approached the apartment. After observing what appeared to be a drug transaction between defendant and E.L., Cuenca stopped E.L. as he rode away on his bicycle. A search recovered a small baggie labeled "420," containing 0.6 grams of marijuana, and a cellular telephone with defendant's phone number stored in its memory. E.L. admitted he was under 18 years old, paid defendant $10 for the marijuana, had purchased marijuana from defendant approximately 20 times in the past, and was introduced to defendant by "Baby Shadow." While E.L. believed Gonzalez and Lopez were associated with OCC, he did not think defendant belonged to it because he had never seen defendant wear OCC gang colors or use its symbols.
The police then searched the apartment. Inside, they found defendant, Gonzalez, and Lopez, the latter hiding in a closet. The police seized $10 in cash from defendant. In the closet the police discovered defendant's backpack containing an unloaded .38 caliber revolver wrapped in a blue bandana. The closet also held a digital scale with marijuana residue, a marijuana grinder, a marijuana pipe, a small baggie labeled "420" containing a usable amount of marijuana, and other unlabeled baggies containing marijuana residue.
A second backpack defendant admitted he owned contained a copy of Teen Angel Magazine and letters addressed to defendant. Cuenca, who also testified as an expert on criminal street gangs, explained Teen Angel Magazine features letters and photos from prison and is a method by which Southern California gangs communicate. He opined the letters found with the magazine contained gang-related information, and cited as an example one letter from Gonzalez to defendant stating, "If you see any of the homeys, tell them I said what's up." Defendant's mother claimed the magazine belonged to defendant's father and had been in the home for fourteen years.
Cuenca questioned defendant after his arrest. He admitted the drug paraphernalia found in the closet belonged to him and that he had sold marijuana to E.L. He acknowledged Gonzalez and Lopez were with him when E.L. telephoned about purchasing marijuana. In addition, defendant admitted he had been "hit up" by rival gang members on several occasions. But he claimed he sold small amounts of marijuana to pay for his own habit and denied selling it for OCC.
Cuenca explained the nature of criminal street gangs and gang culture in general, plus OCC's claimed territory, membership, symbols, hand signs, color, primary activities, which included sales of illegal drugs, and identified two predicate crimes committed by its members. Cuenca also expressed the opinion that defendant, Gonzalez, and Lopez were active participants of OCC.
As for defendant, while he did not have any gang tattoos, wear gang colors or other gang-related clothing, or have a gang nickname, Cuenca cited several facts to support his conclusion defendant was an active OCC member. One was the gang-related letters and magazine found in defendant's closet. A second fact concerned the use of a blue bandana to cover the gun, which Cuenca explained is a color commonly used by Southern California Hispanic gangs. A third involved defendant's drug sales, one of OCC's primary activities.
Cuenca also relied on documentation of defendant's prior gang-related contacts with the police. In the months before his arrest, the police had issued defendant two Street Terrorism Enforcement and Protection (STEP) notices and he had been named in two field identification cards prepared by police officers regarding encounters with gang members. Cuenca explained a STEP notice informs the person receiving it that he is associating with a group considered by police to be a criminal street gang. One STEP notice stated defendant had been observed with two OCC members, one of whom was Lopez's brother. Defendant admitted he had relatives and friends who belonged to OCC, but denied he "claim[ed]" the gang. The second STEP notice reflected defendant was with Lopez in a rival gang's claimed territory. Although he denied being an OCC member, defendant acknowledged he "hangs out" with OCC members, knew the territory claimed by OCC, and the gang's color. In one of the field identification cards defendant acknowledged he had been "hit up" by rival gang members on several occasions.
In response to a hypothetical question based on the facts of this case, Cuenca opined commission of the drug-related crimes would benefit a criminal street gang by providing it with revenue and create fear and intimidation within the community. He noted if gang members see a person selling narcotics "in their [claimed] territory" who is "not paying rent or paying taxes or . . . does not have permission from the gang, they're expected to let that person know . . . they either pay their tax money . . . or they will get . . . assaulted . . . ." In addition, citing the presence of three active gang members, Cuenca expressed the opinion the drug-related crimes would be committed in association with a criminal street gang.
Based on the same hypothetical, Cuenca opined the drug sales would further and assist OCC by increasing the community's fear of the gang, creating respect for the members engaged in the criminal activity, and generating revenue for the gang.
DISCUSSION
1. Standard of Review
Both of the issues raised by defendant in this appeal are governed by the same standard of review. "'"[W]e 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 standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. "'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" [Citations.]' [Citation.]"' [Citation.] Thus, '[w]e presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]' [Citations.] 'Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict" the conviction will not be reversed. [Citation.]' [Citation.]" (People v. Williams (2009) 170 Cal.App.4th 587, 623-624; see also People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
2. The Street Terrorism Conviction
Section 186.22, subdivision (a) creates the substantive crime of street terrorism. "[T]he elements of [it] are (1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. [Citation.]" (People v. Albillar, supra, 51 Cal.4th at p. 56.)
Defendant contends the evidence fails to support the crime's first and third elements. On the first element, evidence of active participation in a criminal street gang "is . . . sufficient if [it] establishes that the defendant's involvement with the gang is more than nominal or passive[.]" (People v. Castenada (2000) 23 Cal.4th 743, 745.) Defendant cites his lack of gang tattoos, clothing, or use of gang signs, plus the absence of a gang-related criminal history and his repeated denials of gang membership. While defendant did not display or brag about his association with the OCC, the evidence supported a finding his involvement in the gang was more than nominal or passive. He associated with known OCC gang members and knew the gang's territory, color, and rivals. Defendant sold drugs, one of OCC's primary criminal activities, from an apartment in an area claimed by OCC while two other OCC gang members were present. In addition, he possessed gang-related paraphernalia. We conclude this evidence supported Cuenca's opinion defendant was an active OCC member when he possessed marijuana for sale and sold some to E.L.
Claiming he "acted alone in making the sale to" E.L., defendant also argues the evidence fails to establish he promoted, furthered, or assisted any felonious criminal conduct by OCC members. We disagree.
First, while Cuenca did not observe Lopez and Gonzales assist defendant in the selling marijuana, the jury could infer they participated based on defendant's postarrest admission they were present when E.L. called to set up the purchase and in the apartment when the sale occurred. Second, even assuming defendant acted on his own, both this court and others have held an active gang participant "can 'promote' or 'further' felonious criminal conduct by acting alone, without assistance or participation by others." (E.g., People v. Gonzales (2011) 199 Cal.App.4th 219, 231; see also People v. Salcido (2007) 149 Cal.App.4th 356, 367-368 ["'An active gang member who directly perpetrates a gang-related offense "contributes" to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct'"]; People v. Ngoun (2001) 88 Cal.App.4th 432, 436-437.)
Accordingly, we find sufficient evidence supports the jury's verdict on the street terrorism charge.
3. The Street Gang Enhancements
Section 186.22, subdivision (b)(1) imposes a sentence enhancement on "any 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 . . . ." Defendant again urges the evidence fails to establish his gang membership. He also argues Cuenca's expert testimony both lacked credibility and was, alone, insufficient to support the jury's true findings on each enhancement. Again, we disagree.
As explained above, the evidence supports the finding defendant was an active OCC participant on the day he sold marijuana to E.L. But even if it did not, since the enhancement expressly applies to "any person . . . convicted of a felony" where the other elements are satisfied, "[t]he enhancement . . . does not depend on membership in a gang at all." (People v. Albillar, supra, 51 Cal.4th at pp. 67-68; see also People v. Bragg (2008) 161 Cal.App.4th 1385, 1402 [enhancement "does not require that the defendant be an active or current member of the criminal street gang that benefits from his crime"].) Thus, defendant's first contention lacks both factual and legal support.
Defendant's attack on Cuenca's credibility as an expert witness on criminal street gangs also lacks merit. "In order to prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs. [Citation.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) "'"'[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.'"' [Citation.] . . . '"'I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]'"' [Citation.]" (People v. Vazquez (2009) 178 Cal.App.4th 347, 352.) This standard equally applies to the testimony of a witness testifying as an expert. (People v. Smith (1995) 31 Cal.App.4th 1185, 1190.)
Defendant cites People v. Ochoa (2009) 179 Cal.App.4th 650 for the proposition "[a] gang expert's testimony alone is insufficient to find an offense gang related," and that "'[t]he record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.' [Citation.]" (Id. at p. 657.) But in Albillar, the Supreme Court noted "[e]xpert opinion that particular criminal conduct benefited a gang by enhancing its reputation . . . can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[ ] criminal street gang' within the meaning of section 186.22[, subdivision](b)(1). [Citations.]" (People v. Albillar, supra, 51 Cal.4th at p. 63.) Drug sales are one of OCC's primary activities and Cuenca explained how the gang benefited from this activity.
Furthermore, "'[c]ommission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.' [Citations.]" (People v. Miranda (2011) 192 Cal.App.4th 398, 412; see also People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [the enhancement applies where the "defendant committed the charged crimes in association with fellow gang members"].) Even defendant acknowledges the enhancement applies where "a defendant act[s] together with fellow gang members at the time of the offense[,]" or "a defendant actively engage[s] in conduct that can be immediately and directly traced to specific, actual gang activity." Both of these elements exist here. Defendant admitted Gonzalez and Lopez were in the room when E.L. called to set up a marijuana buy. Also they were in the apartment when he made the sale. Thus, we conclude the jury could properly find the criminal street gang enhancement applied to each of defendant's drug crimes.
DISPOSITION
The judgment is affirmed.
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RYLAARSDAM, ACTING P. J.
WE CONCUR:
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ARONSON, J.
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IKOLA, J.