Opinion
B226731
12-01-2011
THE PEOPLE, Plaintiff and Respondent, v. CLAUDELL GREEN, Defendant and Appellant.
Karli Sager, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Deputy Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA111069)
APPEAL from a judgment of the Superior Court of Los Angeles County. Kelvin D. Filer, Judge. Affirmed.
Karli Sager, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Deputy Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General for Plaintiff and Respondent.
Defendant Claudell Green appeals from his judgment of conviction of unlawful possession of a firearm. He contends that the evidence was insufficient to support the jury's finding that he possessed the weapon for the benefit of a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. We conclude that substantial evidence supports the finding, and we affirm the judgment.
BACKGROUND
1. Procedural Background
Defendant was charged with one count of possession of a firearm by a felon in violation of Penal Code section 12021, subdivision (a)(1), and one count of carrying a concealed firearm in a vehicle in violation of section 12025, subdivision (a)(1), both felonies. The information alleged the following three prior felony convictions underlying the charge of possession of a firearm by a felon (count 1): a 2004 possession of narcotics for sale in violation of Health and Safety Code section 11351.5; a 2004 robbery in violation of section 211; and a 2008 unauthorized possession of a controlled substance in violation of Health and Safety Code section 11377. For purposes of section 667.5, subdivision (b), the same three prior convictions were alleged as to both counts, with a further allegation that prison terms were imposed for such convictions and defendant failed to remain free of prison custody for a period of five years prior to committing the current offenses. The 2004 robbery conviction was alleged as a strike for purposes of the "Three Strikes" law (§§ 1170.12, subds. (a)-(d) & 667, subd. (b)). The information alleged pursuant to section 186.22, subdivision (b)(1)(A), that the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.
All further statutory references are to the Penal Code unless otherwise indicated.
A jury convicted defendant of both counts, and found true the gang allegation. Defendant waived his right to a trial on the prior convictions and admitted that he had been convicted in 2008 of unauthorized possession of a controlled substance, and that he had been convicted in 2004 of a violation of robbery. Defendant also admitted the prison custody allegation as to both prior convictions. The trial court struck the third conviction for possession of narcotics for sale.
On August 9, 2010, the trial court sentenced defendant to the middle term of two years as to count 1, doubled as a second strike, enhanced by three years under section 186.22, subdivision (b)(1)(a), and by one year under section 667.5, subdivision (b), for one of the prison term prior convictions. The court struck the one-year enhancement alleged as to the robbery prison term. As to count 2, the trial court imposed the middle term of two years, and stayed it pursuant to section 654. Defendant's total unstayed sentence was eight years in prison. Defendant filed a timely notice of appeal from the judgment.
2. Prosecution Evidence
In November 2009, there was an ongoing gang war between the Grape Street Crips (Grape Street), a gang operating mostly in Jordan Downs public housing project, and the Bounty Hunter Bloods (Bounty Hunters), a gang operating mostly in the Nickerson Gardens housing project. A Grape Street member had recently shot and paralyzed a member of the Bounty Hunters. The week before defendant's arrest there had been a shooting by Grape Street members in Nickerson Gardens. The Jordan Downs community feared retaliation, so there was an increased police presence in Jordan Downs.
Los Angeles Police Officer Billy Lee testified that on November 13, 2009, he was on patrol in Jordan Downs with his partner, Officer Jacinto, and a deputy parole officer. They were investigating the ongoing gang war as part of a special task force responsible for enforcing a gang injunction the City of Los Angeles had obtained against the Grape Street gang. The injunction prohibited the gang members from associating with one another, drinking or gambling in public, carrying firearms, or intimidating residents. Officer Lee set up a "parallel patrol," meaning that several police cars drove through the project on parallel streets at the same speed to prevent flight by suspects or attacks from behind or from the side.
Officer Lee noticed a blue Ford Taurus backed into a handicap parking spot, so that the front of the car faced outward. Officer Lee saw no handicap permit, so he stopped his patrol car and approached the Taurus. As he approached, he saw defendant, the lone occupant seated in the driver's seat, take a backpack from the front seat and toss it into the back seat.
Officer Lee asked defendant for his handicap permit and his name. Receiving no answer, the officer asked defendant whether he was on probation or parole. Defendant replied that he was on parole. Defendant complied with Officer Lee's request that he step out of the car, but when Officer Jacinto told defendant to put his hands on roof of the car and spread his legs, defendant ran away. Officers detained defendant within 20 seconds and then searched the Taurus. In the backpack, Officer Lee found a loaded blue steel revolver with the serial number removed. Defendant was arrested, and when asked for his address during booking, defendant gave an address on Clydemore Street in North Hollywood.
Officer Christian Rueda testified that he was one of the officers engaged in the parallel patrol of Jordan Downs that day. He arrived in the parking lot after Officer Lee had parked; saw Officer Lee walking toward the Taurus and defendant get out of the car. Officer Rueda saw no one else in the car. Officer Rueda remained near the Taurus when defendant fled, and saw no one go into or come out of the car until Officer Lee returned and searched the Taurus.
Officer Jason Archie testified as the prosecution's gang expert. In his assignment investigating the Grape Street gang, Officer Archie had arrested or assisted in arresting over 50 members of the gang on charges of murder, robbery, carjacking, possession of an assault rifle, possession of handguns, possession of methamphetamine, crack cocaine, and marijuana for sale, gang injunction violations, and domestic violence. Grape Street had approximately 2,000 members in November 2009, and Officer Archie had personally documented about 200 of them. He was familiar with the gang's common signs, symbols, and boundaries. In addition to self-admissions and information gathered from informants, gang members could be identified by their tattoos, the area they frequented, prior arrests for gang related crime, "throwing" gang hand signs, associating with other gang members, and wearing the gang colors. Grape Street's preferred color was purple. Almost every gang member had a "moniker" -- a nickname given by the gang or earned by the member. In Officer Archie's experience, no member had ever left the gang.
Officer Archie described the ongoing feud between Grape Street and the Bounty Hunters at the time of defendant's arrest. There was a shooting by a Grape Street member that left a Bounty Hunters member paralyzed. Grape Street had other rivals, including the East Coast Crip gang, the 99 Mafia, and the PJ Watts Crip gang. Because Grape Street's primary source of income was selling illegal narcotics, it was important for the gang to protect its territory, which it used force to do. Its members carried handguns, and most of its conflicts were gun fights. Grape Street's primary criminal activities were murder, attempted murder, carjacking, robbery, narcotics sales, witness intimidation, automobile burglary, and carrying illegal weapons.
Officer Archie did not know defendant, but had investigated him prior to his testimony in this case. Officer Archie found a field identification (FI) card documenting a field interview by other officers in September 2009 after they stopped defendant in Jordan Downs housing project. Defendant's address on the card is the same one on Clydemore Street in North Hollywood as he gave in November 2009.
Officer Archie also reviewed defendant's tattoos. He saw "Grape" tattooed on defendant's back, "WBLC" on his chest, "Watts" on his neck, "WB" under one eye, "LC" under the other eye, "GS" on his leg and each arm, and "103" on his arms. Officer Archie explained how each of these tattoos signified the Grape Street gang or a subset of the gang (a "clique"). The "103" tattoo could signify either the 103rd Street Jordan Downs boundary or October 3, the gang's annual "Hood Day" which was celebrated by a party.
In Officer Archie's opinion, defendant was a Grape Street gang member. Although defendant did not currently live there, he was in the gang's territory of Jordan Downs when he was arrested and when he was stopped in September 2009. Defendant had multiple Grape Street tattoos and he was committing the kind of crime consistent with his membership.
After he was given a hypothetical question based on the evidence presented, Officer Archie expressed the opinion that the arrested person possessed the handgun for the benefit of the Grape Street criminal street gang. He based his opinion in part on the fact that there was an ongoing gang war and because the serial number had been scratched off the gun. With no serial number visible the gun could be used by anyone in the gang and tossed without being traced back to the user, commonly referred to as a "hood gun." Possession of such a gun benefitted the gang by its usefulness in protecting the neighborhood and for use in the commission of robberies or other street crimes.
3. Defense Evidence
Defendant testified that he had joined the Grape Street gang at the age of 12, but was no longer a member having left the gang when he was 19. His moniker was "Scrap" or "Little Scrappy." Though admitting that all his tattoos were gang related, he claimed they were old and that he was in the process of having them removed with the help of "Scorpio," the director of the organization, Parolees for Change. Defendant admitted that he had been previously convicted of robbery and possession of narcotics for sale, but denied that he committed the crimes for the gang.
Defendant claimed that the two offenses (both felonies) were misdemeanors, and that he "never did anything criminal as far as shooting, killing people."
When defendant was released from prison on parole in August 2009, he gave the Clydemore Street address as his permanent residence. Defendant denied however that he gave the police the Clydemore Street address when he was stopped in September or when he was arrested, surmising that it just "popped up" when the police entered his birth date. The Clydemore Street address was his girlfriend's apartment where he stayed initially. After leaving there, he learned that he could not live with his mother or sister in Palmdale as that would present problems for them. Defendant knew that under the terms of his parole he was not permitted to go to Jordan Downs or associate with gang members. He explained that he was there because he needed a place to stay. He had lived in Jordan Downs as a child, and still had relatives and acquaintances there. At the time of his arrest, he had been staying in Jordan Downs with a friend, Jackie, whose last name he did not know.
Defendant denied that he had ever had possession of the backpack, gun, or ammunition, and claimed that he saw them for the first time in court. He denied that he carried a gun and surmised that the police had planted it. Defendant conceded that some members of the Grape Street gang carried guns because they considered guns important and necessary for defending their territory. He said that he did not need to carry a gun because he did not "bang" any longer.
No usable fingerprints were found on the gun or ammunition. The backpack was not tested for fingerprints.
Defendant also denied that he had been inside the Taurus the day he was arrested. He claimed that he was merely standing near the car talking to several people and listening to music coming from the car. He claimed that no one was inside the car, that he did not know who owned it, and that he was not acquainted with any of the people he was with.
Defendant testified that he fled from the officers because he thought he would have an outstanding warrant for failing to report to his parole officer the previous month. He explained that he failed to report because he had no permanent address. In September, he had falsely given his parole officer Jackie's address in Jordan Downs as his permanent address. Though his parole officer went to see defendant there, he was told to have a permanent address next time. Defendant cooperated with the officers initially and fled only when it became apparent that they would handcuff him and take him to jail.
Defendant also claimed that the police beat him with batons when they caught up to him. Defendant testified that the officers tripped him and hit him more than five times on his back, head, and legs. During this beating defendant was choked and fainted twice. Then, although he was bruised and his face was swollen, the officers denied him medical attention until they reached the jail. Defendant testified that there were many onlookers and that Parolees for Change had filed a complaint against the police due to the beating.
Defendant admitted that he had attended the "Hood Day" barbecue the previous October 3, the Grape Street gang's special day. He identified himself in a photograph of the event in which he is depicted wearing a purple shirt and grapes around his neck. Defendant acknowledged that the grapes represented his gang, but denied that he was a current member, claiming that he attended the barbecue merely because he liked to eat, and that he wore purple only to fit in and have style. Defendant rode to the event with a friend he knew only as "G." Although defendant did not know G.'s first and last name, he knew that G. was not a member of the gang.
Although defendant described the event as a barbecue attended by 100 "close friends" and their children, he was able to identify just two of the people in the photograph with him, "Nene" and "Chopper." He testified that Chopper was a former member of the Grape Street gang. Defendant denied knowing whether anyone else in the photograph was an active gang member, although most of the people wore purple and one person in the photograph can be seen making the gang sign for a Grape Street clique.
In another photograph taken at the barbecue, defendant was able to identify Scorpio, whom he knew from the Parolees for Change program. Defendant testified that Scorpio was an ex-gang member, although he is depicted in the photograph wearing purple and making a "C" for Crip with his hand.
Kimi Lent (Lent) testified that she was a gang intervention specialist and founder of Parolees for Change, which was located in Jordan Downs where approximately half the youth are gang members. Lent identified Scorpio as Frederick Smith, her coworker and live-in boyfriend, whom she had known for two years. Lent claimed that Scorpio had not been an active member of the Grape Street gang for years, and she knew others who had successfully left the gang.
There are 700 residential units in the complex.
Lent testified that she had seen defendant in the Parolees for Change office. She did not see defendant's arrest in Jordan Downs, but spoke to eyewitnesses about it. She heard that Scorpio filed a complaint with the police department about the officers' treatment of defendant and that Scorpio had met with defendant regarding tattoo removal. Parolees for Change did not perform tattoo removal but made referrals.
Scorpio, who was on federal probation at the time of trial, attended the October 3 barbecue and can be seen in a photograph of the event dressed in purple and throwing a gang sign. The barbecue was attended by gang members, former gang members, and their families. Lent testified that the ex-gang members attended and wore purple because it had been their life at one time.
The prosecution presented no rebuttal evidence.
DISCUSSION
I. Standard of Review
Defendant contends that the gang finding was not supported by substantial evidence because the prosecution failed to establish beyond a reasonable doubt that his crimes were gang related.
"The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.]" (People v. Redmond (1969) 71 Cal.2d 745, 755.) A gang enhancement finding is reviewed under the same substantial evidence standard as any other conviction. (People v. Ochoa (2009) 179 Cal.App.4th 650, 657 (Ochoa).) "[W]e review 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.] We presume 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.) Reversal on a substantial evidence ground "is unwarranted 'unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
II. Gang Allegation
Section 186.22, subdivision (b)(1) has two prongs, both of which the prosecution must prove: (1) the crime was committed for the benefit of, at the direction of, or in association with any criminal street gang; and (2) the crime was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Defendant challenges both elements.
A. The benefit, direction or association of a gang
Defendant contends that the evidence was insufficient to support a finding that his crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang. (See § 186.22, subd. (b)(1).)
Defendant's contention has no merit. First, he does not contend that Grape Street and its subsets were not criminal street gangs. Next, the expert's opinion provided evidence that the crime was gang related. (See People v. Albillar, supra, 51 Cal.4th at p. 63.) That opinion was supported by other evidence, including the defendant's own testimony that Grape Street members considered gun possession necessary and important to protect the gang's territory.
Relying on People v. Albarran (2007) 149 Cal.App.4th 214, 221, 227 (Albarran), and Ochoa, supra, 179 Cal.App.4th at page 657, defendant argues that the evidence was insufficient to show that the crimes were gang related because there was no bragging or graffiti about the gun possession, he was not wearing gang clothing at the time, and he was not arrested in the company of other gang members.
Neither Albarran nor Ochoa held that bragging, graffiti, gang clothing or the presence of gang members at the time of arrest was a prerequisite to finding an offense to be gang related. In Albarran, the prosecution conceded that it did not have gang signs or graffiti to show the crime was gang related or motivated; rather it relied on defendant's gang membership, the fact that the crime was committed in gang territory, and the expert's opinion that it was gang related. (Albarran, supra, 149 Cal.App.4th at pp. 219-221.) In Ochoa, not only was there no evidence of gang signs, clothing, graffiti, or gang companions, the crime was not one the defendant's gang usually committed, it was not committed in gang territory, and the victim was not a gang member. (Ochoa, supra, 179 Cal.App.4th at pp. 661-662.) In short, the defendant's gang membership was essentially the only evidence to support an expert's opinion that the crime was gang related.
Defendant acknowledges that the evidence of his gang membership was not the only evidence supporting the gang finding, and that other facts in evidence included the commission of the crimes in gang territory, the absence of a serial number on the gun he possessed in Grape Street territory, and a shooting in the Bounty Hunters territory believed to have been committed by a Grape Street member the week before his arrest. However, understating the evidence, defendant contends that these were the only facts and that they were insufficient. We disagree.
Unlike the defendant in Ochoa, defendant committed one of his gang's usual criminal offenses, unlawful possession of a firearm. Defendant possessed in Grape Street territory, a loaded, concealed, untraceable hand gun, knowing that Grape Street members considered guns necessary and important to protect the gang's territory. Defendant's history of membership in the gang, recent conflict with a rival gang, and the commission of one of the primary crimes of the Grape Street gang in gang territory, provided substantial evidence to support the expert's opinion that possession of a firearm benefitted the Grape Street gang. (See People v. Carr (2010) 190 Cal.App.4th 475, 478-479, 488-490.)
Defendant argues that there was no evidence suggesting that he had actual knowledge of the ongoing feud with the Bounty Hunters, the shooting in Nickerson Gardens, or that retaliation was expected. Defendant did not need to know the exact nature of the feud at the moment of his arrest to know that his gang needed weapons to protect its territory. Defendant admitted he knew there were rival gangs in the areas near Jordan Downs and that an encounter with a Bounty Hunter gang member could be dangerous. He acknowledged that Grape Street members considered firearms necessary and important to protect gang territory.
Moreover, as respondent points out, the feud was common knowledge in the Jordan Downs community. Defendant was a part of the community. He had grown up in and near Jordan Downs, had many friends and relatives in Jordan Downs, and he was staying with a friend there. A Parolees for Change staff member had recently been shot in Nickerson Gardens, the residents of the community were afraid of retaliation, and there was an increased police presence in Jordan Downs. Defendant had been in contact with the busy Jordan Downs office and he had attended the October 3 "Hood Day" barbecue with 100 close friends, all with ties to the Grape Street gang. Defendant's awareness of the feud could reasonably be inferred from the circumstances.
Defendant argues that the evidence was equally consistent with possession of the firearm solely for personal protection as well as for the benefit of the gang. Defendant testified that the gun was not his, he had no knowledge of the gun's existence, and he did not need to carry a gun because he did not "bang" any longer. By his own admission, defendant did not possess the gun for his own protection. The jury was entitled to disbelieve his denial and instead conclude otherwise. (See People v. Allen (1985) 165 Cal.App.3d 616, 623.)
Quoting People v. Acevedo (2003) 105 Cal.App.4th 195, 198, and citing People v. Brown (1989) 216 Cal.App.3d 596, 600, defendant contends that reversal is required under these circumstances because "[w]hen the facts give equal support to two competing inferences, neither is established." Defendant misconstrues the quoted language, which referred to speculative inferences, not logical inferences based upon substantial evidence. (See People v. Massie (2006) 142 Cal.App.4th 365, 369.) The fact that evidence might also reasonably be reconciled with a contrary finding does not require reversal. (People v. Albillar, supra, 51 Cal.4th at pp. 59-60.)
We conclude that substantial evidence supports the jury's finding that defendant's possession of the firearm was committed "for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22, subd. (b)(1).)
B. Specific Intent
Defendant contends that there was insufficient evidence to establish the specific intent element of section 186.22, subdivision (b)(1).
Specific intent must usually be inferred from all the facts and circumstances shown by the evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 27-28.) Here there was substantial circumstantial evidence from which the jury could infer specific intent to promote, further, or assist in any criminal conduct by gang members. Defendant was a member of the Grape Street gang. In August, September, and November 2009, defendant's primary residence was in North Hollywood, not in the Grape Street territory where he was prohibited from going by the terms of his parole. Nevertheless, defendant brought a "hood gun" into his gang's territory at a time when his gang was in the midst of a violent feud with the Bounty Hunters from whom the community was expecting violent retaliation. Defendant had become more involved with the Jordan Downs community, staying with a friend in the project, attending the "Hood Day" barbecue, and visiting the Parolees for Change office.
Defendant compares the facts of this case to those found insufficient in People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), and In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.). In Ramon, a gang member and convicted felon was arrested in the company of another gang member in gang territory, while the two were in a stolen vehicle with an unregistered firearm. (Ramon, supra, at p. 847.) Because there was no evidence that the defendant's gang committed either type of crime, the appellate court found the evidence insufficient to support the expert's opinion that the crimes were committed with the specific intent to promote, further, or assist criminal conduct by the gang. (Id. at p. 853.) In Frank S., the gang member minor was arrested with a concealed dirk or dagger, but 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." (Frank S., supra, at p. 1199.)
The statute requires only the specific intent to promote, further, or assist criminal conduct by gang members. (§ 186.22, subd. (b).) It is probable that the appellate court found evidence insufficient only because it misread the statute, holding that the specific intent must be to promote, further, or assist criminal conduct by the gang. (See People v. Ochoa, supra, 179 Cal.App.4th at pp. 660-661 & fns. 6, 7.)
--------
Ramon and Frank S. are of no help to defendant. Unlike in Ramon, unlawful possession of firearms was one of the Grape Street gang's primary criminal activities. Further, unlike in Frank S., defendant had every reason to expect his weapon to be used in the course of the feud with the Bounty Hunters. Finally, defendant's own testimony provided evidence that he intended other gang members to use the gun. Defendant denied that he possessed the gun for his own use or that he needed a gun for his own protection. The jury apparently rejected defendant's claim that the gun was planted, and accepted his testimony that the gun was not needed for his personal protection. The jury could reasonably have inferred that defendant carried the gun into Grape Street territory for the use of other gang members or that defendant intended to promote, further, or assist his gang in criminal conduct.
We conclude that substantial evidence supported the finding that defendant intended to promote or further criminal activity by gang members.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICAL REPORTS.
________________________________ J.
CHAVEZ
We concur:
________________________________, P. J.
BOREN
________________________________, J.
DOI TODD