Opinion
G038635
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. ARNULFO GONZALEZ, Defendant and Appellant.
Stephen S. Buckley, 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, James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Defendant Arnulfo Gonzalez, an admitted gang member, shot a handgun out of the window of a pickup truck. He was convicted of unlawfully discharging a firearm, being an active gang member with a firearm in a vehicle, carrying a loaded firearm in public while being an active gang member, and street terrorism.
On appeal, defendant argues, and the Attorney General agrees, that street terrorism is a lesser included offense of carrying a loaded firearm in public while being an active gang member. We reverse the judgment with directions to the trial court to vacate defendants conviction for street terrorism.
Defendant also argues there was insufficient evidence supporting his conviction for carrying a loaded firearm in public as an active gang member, because there was no evidence connecting the gun possession to defendants gang activity. As a matter of law, however, such a connection is not an element of the crime. The conviction for carrying a loaded firearm while being an active gang member is supported by substantial evidence.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Around 1:00 a.m. on November 12, 2006, defendant was in the front passenger seat of his truck. Defendant pulled out a handgun he had placed in the trucks glove compartment earlier that evening, pointed it out the window, and fired between four and six shots up in the air. Santa Ana Police Officer Jay Miller heard the shots, and pulled the truck over. The truck was searched, and a .380-caliber handgun was found in the center console, under the air duct and cup holders. Five shell casings were found on the floorboard in the passenger area of the truck. Defendants hands later tested positive for gunshot residue.
Defendant was later interviewed by the police, after waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436. The audiotape of this interview was played for the jury at trial. Defendant admitted possessing the handgun, and firing it from the truck. He had purchased the gun several months earlier from members of another gang. Defendant had fired the gun because he was happy. He also admitted (as he had on previous occasions to law enforcement) that he was a member of the Hard Times street gang. Defendant had two gang tattoos, and his gang moniker was "Lil Grinch." When he was arrested, a California drivers handbook was found in the truck with "Hard Times" written on it.
Between May 2002 and October 2006, law enforcement had served defendant with nine gang notices, advising him he was participating in or associating with a criminal street gang, as defined by the Penal Code.
The prosecutions gang expert testified Hard Times was an active criminal street gang in November 2006 with approximately 15 members. The primary activities of the Hard Times street gang were auto theft and felony assaults. The Hard Times street gang claimed territory in Garden Grove. The expert also testified gang members commit crimes to gain respect within the gang, and to elevate the status of the gang in the community; the more violent the gang is, the more respect it will earn. The expert also opined that a gang member cannot possess a gun at any time without it being gang related.
Defendant was charged in an information with unlawfully discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3; count 1); being an active gang member with a firearm concealed in a vehicle under his control (§ 12025, subds. (a)(1) & (b)(3); count 2); carrying a loaded firearm in public while being an active gang member (§ 12031, subd. (a)(1), (2)(C); count 3); and street terrorism (§ 186.22, subd. (a); count 4). The information alleged criminal street gang enhancements on counts 1, 2, and 3 (§ 186.22, subd. (b)(1)), and a prior prison term enhancement (§ 667.5, subd. (b)). A jury convicted defendant on all counts, but found the gang enhancements to be untrue. The trial court struck the prior prison term enhancement on the prosecutions motion.
All further statutory references are to the Penal Code.
The trial court sentenced defendant to two years eight months in prison. Defendant was sentenced to two years on count 1. Two-year terms on counts 2 and 3 were imposed, but stayed pursuant to section 654. The court also imposed a consecutive eight-month sentence on count 4. Defendant timely appealed.
DISCUSSION
I.
STREET TERRORISM IS A LESSER INCLUDED OFFENSE OF CARRYING A LOADED FIREARM IN PUBLIC WHILE BEING AN ACTIVE GANG MEMBER; DEFENDANTS CONVICTION FOR STREET TERRORISM MUST THEREFORE BE REVERSED.
Defendant argues, and the Attorney General concedes, that street terrorism (§ 186.22, subd. (a)) is a lesser included offense of carrying a loaded firearm in public while an active gang member (§ 12031, subd. (a)(1), (2)(C)). In People v. Flores (2005) 129 Cal.App.4th 174, 184, this court agreed that a defendant cannot violate section 12031, subdivision (a)(2)(C) without necessarily also violating section 186.22, subdivision (a). We therefore reverse the judgment, and direct the trial court to vacate defendants conviction on count 4.
Given this conclusion, we need not address defendants separate argument that the sentence imposed on count 4 must be stayed, pursuant to section 654.
II.
VIOLATION OF SECTION 12031, SUBDIVISION (A)(1) AND (2)(C) DOES NOT REQUIRE PROOF OF A CONNECTION BETWEEN THE GUN POSSESSION AND THE GANG; EVEN IF IT DID, THERE WAS SUBSTANTIAL EVIDENCE OF SUCH A CONNECTION IN THIS CASE.
Defendant also argues his conviction on count 3 for carrying a loaded firearm in public while being an active gang member must be reversed because there was insufficient evidence that his possession of the handgun was connected to the gang. Section 12031 provides, in relevant part: "(a)(1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory. [¶] (2) Carrying a loaded firearm in violation of this section is punishable, as follows: [¶]. . . [¶] (C) Where the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1), as a felony."
Defendant argues that in order to violate section 12031, subdivision (a)(1) and (2)(C), the act of carrying a loaded firearm must be connected to the active participation in a criminal street gang. Defendants argument was addressed, and rejected, in People v. Schoppe-Rico (2006) 140 Cal.App.4th 1370, 1381: "To construe the street gang firearm statutes [sections 12025, subd. (b)(3), and 12031, subd. (a)(2)(C)] as including a gang connection element, as advocated by appellant, not only would strain their language, but also would render them almost entirely unnecessary. [Citation.] As pointed out in [People v.] Robles [(2000) 23 Cal.4th 1106], if so construed, the statutes would be subsumed under the firearm enhancement provision set forth in section 12021.5, subdivision (a), except where the underlying section 186.22[, subdivision ](a) offense was treated as a misdemeanor. Appellant has cited no legislative history or other authority supporting the view that the Legislature intended the street gang firearms statutes to have such an extremely narrow application. On the contrary, it appears far more likely, as Robles surmised, that the Legislature intended the street gang firearms statutes to make it possible to convict active gang members of a felony whenever they are found in possession of a loaded or concealed firearm, even when the prosecution cannot establish any temporal or causal connection between the firearm possession and gang activity. [Citation.]"
In reaching this conclusion, the appellate court relied on the following dicta from the Supreme Courts decision in People v. Robles, supra, 23 Cal.4th at page 1113: "Thus, it is entirely plausible that the Legislature may have enacted section 12031[, subdivision ](a)(2)(C) to cover a situation not subject to felony punishment under section 186.22[, subdivision ](a): when the person carrying the loaded firearm had at some other time committed a violation of section 186.22[,subdivision ](a)."
We agree with and adopt the analysis of People v. Schoppe-Rico, supra, 140 Cal.App.4th 1370. Defendants argument would make section 12031, subdivision (a)(2)(C) superfluous, except in the limited situation where an accompanying section 186.22, subdivision (a) violation was charged as a misdemeanor.
The evidence of defendants active participation in the Hard Times street gang and the evidence that defendant was carrying a loaded firearm in public were overwhelming, and indeed are not challenged on appeal. There was more than sufficient evidence to support defendants conviction on count 3.
Defendant makes an additional argument regarding the jury instructions. CALJIC No. 12.54.1 defines the elements of a violation of section 12031, subdivision (a)(1), (2)(C) as follows: "Every person who, with knowledge of its presence, [unlawfully] carries a loaded firearm [on his person] [or] [in a vehicle] [while in any public place] [while on any public street in an incorporated city] [while on any public street in a prohibited area of unincorporated territory] and that person is an active participant in a criminal street gang, and willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, is guilty of a violation of Penal Code section 12031, subdivisions (a)(1)/(a)(2)(C), a crime." (Italics added.) The reporters transcript reflects the trial court actually instructed the jury as follows: "Every person who with knowledge of its presence unlawfully carries a loaded firearm on his person or in a vehicle while in any public place while on any public street in an incorporated city and that person is an active participant in a criminal street gang, and willfully promotes, furthers, and assists in any felonious conduct conducted by members of that gang is guilty of violating Penal Code section 12031, subdivision (a)(1) [/](a)(2)(C), a crime." (Italics added.) Defendant suggests the use of "and" rather than "or" required the jury to find a connection between defendants carrying of a loaded gun and his gang activity. Not so. If anything, by misspeaking the trial court increased the prosecutions burden of proof by requiring the jury to find defendant had promoted, furthered, and assisted in criminal conduct by other members of the gang.
DISPOSITION
The trial court is directed to vacate defendants conviction on count 4, and to prepare an amended abstract of judgment and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.