Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court, No. RIF130825 of Riverside County. Elisabeth Sichel, Judge. Affirmed.
Dennis L. Cava, 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, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Marilyn L. George, Deputy Attorney General, for Plaintiff and Respondent.
McKINSTER Acting P. J.
INTRODUCTION
A jury found defendant guilty of selling a controlled substance. (Health & Saf. Code, § 11352, subd. (a).) A jury found true the allegation that defendant committed the crime to benefit a criminal street gang. (Pen. Code, § 186.22, subd. (b).) A jury also found defendant guilty of actively participating in a criminal street gang. (Pen. Code, § 186.22, subd. (a).) The court sentenced defendant to six years in state prison. Defendant contends that there is a lack of substantial evidence to support the findings that (1) he committed the crime to benefit a criminal street gang, and (2) he actively participated in a criminal street gang. We affirm the judgment.
FACTS
Facts concerning the gang evidence will be set forth in the “discussion” section, post. On January 26, 2006, Riverside Police Detective Dorado was participating in a citywide “buy program,” in which he “was assigned to be a purchaser of controlled substances, attempting to purchase drugs from street level dealers . . . .” Detective Dorado was working undercover, and he was video and audio recording his transactions.
Detective Dorado rode a bicycle near Western Liquor store in the area of University and Ottawa Avenues in Riverside. Defendant was at the liquor store and asked the detective, “what [he was] looking for.” The detective responded, “[a] dub,” which refers to $20 worth or a quarter gram of rock cocaine. The detective gave defendant $20. The detective took the rock cocaine, which was located on a pillar. Defendant was arrested in June 2006 at the end of the drug-buy program.
The video recording of the transaction showed defendant was with a female at the time of the transaction with Detective Dorado. Defendant testified that he had gone to the liquor store with the woman because she was a friend and she was waiting “for somebody to come pick [her] up.” Defendant testified that he used drugs and that he had not gone to the liquor store to sell drugs; but, defendant thought he would be able to make a quick profit from the sale to the detective because he was charging $20 and the quantity of drugs he was selling was worth less than $10. Defendant further testified that he used the money from the sale to purchase more drugs for himself.
DISCUSSION
Defendant contends that there is a lack of substantial evidence to support the jury’s findings that he (1) committed the crime to benefit a criminal street gang (Pen. Code, § 186.22, subd. (b)), and (2) actively participated in a criminal street gang (Pen. Code, § 186.22, subd. (a)). We disagree with defendant’s arguments.
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one.” (People v. Smith (2005) 37 Cal.4th 733, 738.) “We review the entire record in the light most favorable to the judgment and affirm the [jury’s findings] as long as a rational trier of fact could have found [the allegations to be true] based on the evidence and inferences reasonably drawn therefrom. [Citation.]” (People v. Millwee (1998) 18 Cal.4th 96, 132.) In deciding whether substantial evidence supports the jury’s verdict, we do not resolve issues of credibility or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) “Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt.” (People v. Millwee, at p. 132.)
A. Enhancement—Penal Code Section 186.22, Subdivision (b)
We begin by addressing defendant’s first argument, regarding the gang enhancement. To obtain a true finding on an allegation of a criminal street gang enhancement, the People must prove the crimes at issue were “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 . . . .” (Pen. Code, § 186.22, subd. (b)(1); see also People v. Gardeley (1996) 14 Cal.4th 605, 617.) “In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period. ([Pen. Code,] § 186.22, subds. (e) and (f).)” (Gardeley, at p. 617.)
1. Evidence concerning a benefit to the gang
Seven field interview cards presented at defendant’s trial memorialized that defendant admitted to being a member of the Palmer Blocc Compton Crips. All seven field interviews occurred within approximately two years of the offenses at issue in the instant case. In addition, four of the interviews took place along University Avenue in Riverside, which is where many members of Los Angeles County gangs sell narcotics.
The first card noted that defendant was interviewed on September 15, 2004, in the area of University and Dwight Avenues, which is one and one-half blocks from the Western Liquor store. During that interview, defendant admitted he was a member of the Palmer Blocc Compton Crips. In addition, defendant was associating with a member of the 1200 Blocc Crips, which is a street gang that is primarily located on the east side of Riverside.
The second field interview card memorialized that defendant was interviewed on January 22, 2004, at the Western Liquor store on University Avenue. During that interview, defendant admitted he was a member of the Palmer Blocc Compton Crips.
The third field interview card noted that defendant was again interviewed at University and Dwight Avenues in Riverside on April 5, 2004. Defendant admitted to being a member of the Palmer Blocc Compton Crips. Defendant was wearing gang clothing, such as “a blue do-rag, blue jersey, with a 22 on it somewhere, [and] blue pants.”
The fourth field interview card noted that defendant was interviewed on April 30, 2004, at Seventh Street and Ottawa Avenue in Riverside. Defendant admitted that he was a gang member. Defendant was wearing gang clothing, such as a “[p]owder blue, NASCAR jogging suit.”
The fifth field interview card memorialized that defendant was interviewed at Kansas Avenue and Seventh Street in Riverside on April 11, 2005. Defendant admitted that he was a gang member.
The sixth field interview card noted that defendant was interviewed on June 1, 2004, at the Auto Zone at 1947 University Avenue. Defendant admitted that he was a gang member.
The seventh field interview card memorialized that defendant was again interviewed at University and Dwight Avenues in Riverside on an unspecified date in 2004. Defendant admitted that he was a gang member.
Defendant’s body is covered in multiple tattoos that signify membership in the Palmer Blocc Compton Crips street gang. Two of defendant’s tattoos are located under each of his eyes, and depict the letter “C,” which signifies Compton Crips. Defendant’s girlfriend testified that defendant’s face was tattooed in 2004 or 2005. Detective Stamps testified that a gang member who tattoos his face is considered a “hardcore gang member[].” Another of defendant’s tattoos is located on his arm and a portion of it reads “still Crip’n.”
When defendant was arrested, the police recovered several documents in his possession. One document was titled “Prevention Plan” and included goals such as being “fully removed from anything that connects me to gang-banging.” The document reflected that the goal would be achieved by “continu[ing] to tell myself that nothing good comes from gang-banging. Death or life in prison is the only lifestyle for a gangster. . . . [Y]ou can’t be a loving and providing father if you’re sitting in prison or dead from some gang activity.” Detective Stamps believed that the document indicated defendant was an active gang member because it showed that he was finding reasons not to be an active gang member.
A second document recovered from defendant’s belongings contained a poem that contained phrases such as “glorify my city” and “keep my shit gangsta.” A third document recovered from defendant’s belongings was dated October 10, 2006, and appeared to be a letter written to defendant. The letter was addressed to “Face,” which refers to defendant’s gang moniker “Face Loc.” A fourth document, a letter, was authenticated by defendant. In the letter defendant wrote, “I don’t go nowhere really but Compton and Vegas.”
Detective Stamps testified that in his opinion defendant was an active member of the Palmer Blocc Compton Crips street gang based upon defendant’s tattoos, the documents recovered from defendant’s personal belongings, defendant’s association with a member of the Crips gang in Riverside, and defendant’s actions of selling rock cocaine. Detective Stamps further testified that if a gang member is selling drugs, they do it for the benefit of the gang because gang members rely on the proceeds of narcotics sales to pay bills, purchase weapons, and buy more drugs to sell. In addition, a person selling drugs with visible gang tattoos on his face, such as defendant, would benefit the gang by “advertising” their gang affiliation.
2. Evidence concerning an ongoing association
Detective Stamps testified that there are approximately 910 members of the Palmer Blocc Compton Crips. Furthermore, nine members of the gang have been contacted and identified in the Inland Empire. Detective Stamps also testified that the gang identifies with the symbol of a street sign depicting Palmer Street, as well as the initials “PBCC [and] WSPBC for West Side Palmer Blocc Crip.”
3. Evidence concerning primary activities
In addition, Detective Stamps spoke with Detective Hecht of the Los Angeles County Sherriff’s Department and determined that the primary activities of the Palmer Blocc Compton Crips are “everything from property crimes, vandalism and theft, auto, sales of narcotics, transportation of narcotics, shootings, stabbings, attempt[ed] murders and murders.” Felony vandalism (Pen. Code, § 594, subd. (b)(1)), vehicle theft (Veh. Code, § 10851), transportation and sale of controlled substances (Health & Saf. Code, §§ 11054-11058), and assault with a deadly weapon (Pen. Code, § 245) are all enumerated offenses in Penal Code section 186.22, subdivision (e).
4. Evidence concerning a pattern of criminal gang activity
A pattern of criminal gang activity is established by evidence of two criminal offenses committed on separate occasions, or by two or more people. (Pen. Code, § 186.22, subd. (e); People v. Gardeley, supra,14 Cal.4th at pp. 616-617;see also Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 1400.) At least one of the two prior crimes must have been committed after September 26, 1988, and defendant’s offense must have occurred within three years of one of the prior crimes. (Pen. Code, § 186.22, subd. (e); see also CALCRIM No. 1400.) Penal Code section 186.22, subdivision (e), does not require that a defendant have knowledge of the predicate offenses relied on by the prosecution.
Detective Stamps testified that two members of the Palmer Blocc Compton Crips have committed crimes in Riverside County. The first crime was theft of an automobile (Veh. Code, § 10851) by Leroy Johnson on August 25, 2003. Defendant’s offense occurred on January 26, 2006, which was within three years of the prior crime. The second crime Detective Stamps testified to was assault with a firearm (Pen. Code, § 245, subd. (a)(2)) by William Taylor on July 5, 1997. Mr. Johnson and Mr. Taylor both had tattoos on their bodies indicating that they were members of the Palmer Blocc Compton Crips.
5. Conclusion
The evidence of defendant’s street gang tattoos, the seven field interview cards indicating that he admitted to being a member of a street gang and on one occasion was found associating with a local street gang member, the documents found in defendant’s personal belongings, and the testimony of Detective Stamps provides substantial support for the jury’s finding that defendant acted to benefit a criminal street gang.
6. Defendant’s arguments
Defendant argues that there is insufficient evidence to prove a $20 drug sale would promote, further, or assist in any criminal conduct by gang members. We conclude that the jury could reasonably infer from the evidence detailed ante that defendant was an active gang member and, therefore, any sale, even a $20 sale, would benefit the gang by providing money for any number of purchases.
Second, defendant argues that there were no members of the Palmer Blocc Compton Crips in the area at the time the drug sale took place. Detective Stamps testified that nine members of the Palmer Blocc Compton Crips street gang have been contacted and identified in the area of Riverside and San Bernardino Counties. Nevertheless, we note that there is no requirement in Penal Code section 186.22 that other gang members be present at the time of the crime. (See People v. Salcido (2007) 149 Cal.App.4th 356, 367-370.)
B. Active Participation in the Gang—Penal Code Section 186.22, Subdivision (a)
“A violation under [Penal Code] section 186.22, subdivision (a) requires proof of two elements which are not part of the gang enhancement: active participation in any criminal street gang and ‘knowledge that its members engage in or have engaged in a pattern of criminal gang activity.’ [Citation.]” (People v. Bautista (2005) 125 Cal.App.4th 646, 656, fn. 5.)
Active participation in a street gang means that a defendant’s involvement with the gang “‘is more than nominal or passive.’” (People v. Castenada (2000) 23 Cal.4th 743, 752.) In the instant case, we have already concluded that substantial evidence supports the jury’s finding that defendant was selling drugs to benefit a criminal street gang. The evidence mentioned ante also supports the jury’s finding that defendant is an active gang member. Accordingly, the evidence supporting those two findings also supports the conclusion that defendant’s involvement with the street gang was more than nominal or passive because he was selling drugs to actively benefit the gang.
Next, we address the issue of whether the evidence supports the finding that defendant had knowledge that members of the street gang engage in or have engaged in a pattern of criminal gang activity. We have resolved, ante, that the evidence supports the jury’s finding of a pattern of criminal gang activity. Therefore, we address the issue of defendant’s knowledge of that activity.
When the issue is a state of mind such as knowledge, “[r]eliance on circumstantial evidence is often inevitable . . . .” (People v. Lewis (2001) 26 Cal.4th 334, 379.) “Knowledge, like intent, is rarely susceptible of direct proof and generally must be established by circumstantial evidence and the reasonable inferences to which it gives rise.” (People v. Buckley (1986) 183 Cal.App.3d 489, 494-495.)
Defendant’s knowledge of the street gang’s criminal activities can be inferred from the documents found in defendant’s possession. The document titled “Prevention Plan,” referred to conclusions such as (1) “[d]eath or life in prison is the only lifestyle for a gangster[, and (2)] you can’t be a loving and providing father if you’re sitting in prison or dead from some gang activity.” A jury could reasonably infer that the document was written by defendant because it was in his possession and, therefore, defendant was aware of the criminal activities of the Palmer Blocc Compton Crips because he recognized that involvement with the gang often results in “[d]eath or life in prison.” Accordingly, we find substantial evidence supports the jury’s finding that defendant actively participated in a criminal street gang.
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., KING J.