Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. Frank Dougherty, Judge, Super. Ct. No. 29368.
Opinion following remand by U.S. Supreme Court
Sandra Uribe, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
HILL, J.
INTRODUCTION
This case is before us on remand from the United States Supreme Court for further consideration in light of that court’s decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). The parties have provided supplemental briefing addressing Cunningham and the California Supreme Court’s recent interpretation of Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II). After further consideration in light of both Cunningham and Black II, we affirm the judgment and sentence. Except for our discussion of defendant’s sentence, the opinion we now file is substantially the same as our original opinion filed on September 5, 2006.
A jury found defendant guilty of carrying a loaded firearm within a public place (Pen. Code, § 12031, subd. (a)(1); count 1), possessing a firearm with an obliterated serial number (§ 12094, subd. (a); count 2), resisting, delaying, or obstructing a peace officer (§ 148; count 3), carrying a concealed weapon (§ 12025, subd. (a)(2); count 4), and participating in a criminal street gang (§ 186.22, subd. (a); count 5). The jury also found true the criminal street gang enhancement alleged in counts 1 and 4 (§ 186.22, subd. (a)). Defendant was sentenced to a total prison term of seven years eight months: the upper term of three years on count 1, plus four years for the gang enhancement, a concurrent term of six months on count 3, and a consecutive term of eight months on count 5. The court stayed defendant’s sentence on counts 2 and 4 under section 654.
Further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends: (1) the evidence was insufficient to support his conviction for carrying a loaded firearm in a public place; (2) his trial counsel rendered ineffective assistance by failing to request the court to instruct the jury with CALJIC No. 2.50; (3) section 654 bars punishment on the gang enhancement attendant to count 1; and (4) the court’s imposition of the upper terms for count 1 violated his constitutional rights under Blakely v. Washington (2004) 542 U.S. 296. We will reject defendant’s contentions, and affirm the judgment.
FACTS
At defendant’s trial, Merced Police Officer Rodney Court testified that he has been a police officer for 17 years. On November 25, 2004, he was assigned to patrol the south district of the city, around the 1300 block of West Third Street. Officer Court was familiar with this area of Merced, and described it as consisting of “all apartments … predominantly occupied by Southeast Asians.” Gang members who live in the area have named it “Ghost Town.” Officer Court and several other officers were dispatched to the area because a homicide had occurred there the previous night and there were reports of gang members loitering in the area.
When Officer Court first saw defendant, defendant was running towards him through a parking lot adjacent to the apartments. Officer Court yelled “‘Police, police’” and ordered defendant to stop. Defendant immediately turned and ran in the opposite direction. Officer Court chased defendant between two apartment buildings. At the beginning of the chase, Officer Court noticed defendant was running with his right hand in his pants pocket. Midway during the chase, defendant pulled his hand from his pocket and started to run with both hands free and pumping up and down. Defendant was eventually caught by Officer Court and the other officers just to the north of Third Street. The entire chase lasted about 35 to 40 seconds.
After defendant was detained, Officer Court immediately went back to secure the path that defendant had just traversed. Officer Court suspected defendant had tossed something based on the fact defendant’s hand had gone from being in his pocket to being free. Officer Court searched the area but found nothing. A K-9 search of the area, primarily for narcotics, also failed to recover anything. Finally, a dispatch operator informed the officers that a witness, Yeng Her, had called and said she had seen someone throw something. Officer Court went to talk to Her, whom he recalled having seen earlier while he was chasing defendant. Her had been standing between the apartment buildings, holding a child by the hand.
At the time of the incident, Her was visiting her parents at the apartment buildings. Although she was related to defendant, Her testified she did not know defendant personally. Officer Court testified that when he went to speak to Her, she told him that she saw the man they had been chasing throw something out of his right hand. She did not know what it was, but she thought it was heavy because it made a loud noise when it hit the ground. Officer Court searched the area again and found a loaded, .38-caliber revolver underneath some bushes between the two apartment buildings.
To support the gang enhancements and substantive gang offense, the prosecution introduced testimony of a police expert on street gangs and defendant’s probation officer, who supervised defendant in connection with offenses defendant committed as a juvenile. It is not necessary to recount this evidence in detail as defendant does not challenge the sufficiency of the evidence to support the gang offense and enhancements. Suffice it to say, the evidence showed that defendant was a validated member of the “Oriental Crips,” a criminal street gang active in Merced. There was also evidence that defendant was connected with the “True Blues,” a clique of the Crips that frequented the Ghost Town area. Assuming the facts of the case, the expert opined defendant committed the instant offenses for the benefit of a criminal street gang.
Records of defendant’s juvenile adjudications for carrying a concealed weapon, residential burglary, and grand theft were submitted to the jury.
The prosecution also introduced evidence of a prior uncharged act by defendant. Koua Lor, another relative of defendant, testified that in September 2004, defendant got out of his car, punched Lor in the mouth, and pointed a gun at him. The gun was silver and resembled the gun involved in this case. Lor testified he knew defendant was a gang member but claimed he did not know why defendant attacked him.
DISCUSSION
I. Sufficiency of the evidence
Defendant contends there was insufficient evidence to support his conviction for carrying a loaded firearm because the prosecution presented no evidence that he carried the weapon in an incorporated city or prohibited area of an unincorporated territory, an element of the crime of possessing a firearm in a public place under section 12031, subdivision (a)(1). Defendant further contends that if the evidence was sufficient to establish that the pertinent events took place in the city of Merced, it would be improper for this court to take judicial notice of the fact Merced is incorporated. Defendant’s contentions are erroneous.
Section 12031, subdivision (a)(1) provides: “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.”
When the sufficiency of the evidence is challenged on appeal, the appellate court reviews the evidence and reasonable inferences drawn from that evidence most favorably to the prevailing party. The court upholds the judgment if substantial evidence supports it. (People v. Johnson (1980) 26 Cal.3d 557, 575-579 (Johnson).) It is not the function of the appellate court to reweigh or reinterpret evidence but to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; Johnson, supra, 26 Cal.3d at p. 576.) We reverse a conviction on the ground of insufficient evidence only if it clearly appears that “upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) Substantial evidence is evidence that is “reasonable, credible, and of solid value.” (Johnson, supra, 26 Cal.3d at p. 578.) This standard of review is equally applicable when the conviction is based on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
There was substantial evidence that the events pertinent here occurred in the city of Merced. Officer Court’s testimony describing the area where the events occurred was elicited in direct response to inquiries referring specifically to “Merced” and “the city.” Although defendant quibbles with isolated pieces of testimony, when viewed in its entirety, the testimony of Officer Court and the other witnesses clearly supported the conclusion the events took place in the city of Merced, and no contrary evidence about the location of the pertinent events was presented.
Contrary to defendant’s assertions, no proof was required of the fact that Merced is an incorporated city because Evidence Code section 451 applies. Evidence Code section 451 provides that “Judicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution.…” This provision is commonly referred to as mandatory judicial notice. The effect is that the court is required to take judicial notice and it is not discretionary or subject to the notice provisions of Evidence Code section 452.
Government Code section 57380 provides “Courts shall take judicial notice of the organization and existence of cities incorporated pursuant to this division.”
Evidence Code section 459 provides in pertinent part, “(a) The reviewing court shall take judicial notice of … (2) each matter that the trial court was required to notice under Section 451 .…” This court is not required to give notice or a reasonable opportunity to dispute such information as this issue is not subject to Evidence Code section 451, subdivision (a) (statutory law).
We therefore take judicial notice that Merced is an incorporated city.
See the Secretary of State’s 2006 California Roster listing Merced as a city incorporated on April 1, 1889, (as of July 20, 2006).
The trial court was likewise required to take judicial notice of the existence of the incorporated city of Merced, and should have told the jury that the status of Merced as an incorporated city must be accepted as an established fact. Once it was conclusively proven that the crime occurred in Merced, judicial notice of the fact Merced is an incorporated city became mandatory. (Evid. Code, § 451; Govt. Code, § 57380.) The trial court erred by failing to make the conclusion compelled by the proof, i.e., to take mandatory judicial notice and so inform the jury. This error was judicial error, not a failure of proof. Indeed, “[j]udicial notice is … a substitute for proof, ‘a judicial shortcut, a doing away with the formal necessity for evidence because there is no real necessity for it.’ [Citations.]” (1 Witkin, Cal. Evidence (4th ed. 2000) Judicial Notice, § 3, p. 103.) The proof (the crime occurred in Merced) was there; the mandatory conclusion (Merced is an incorporated city) was not.
Because this was judicial error, which, at most, resulted in omission of an instruction or statement to the jury that Merced is an incorporated city, it is subject to harmless error analysis. (Neder v. United States (1999) 527 U.S. 1, 8-10; Rose v. Clark (1986) 478 U.S. 570, 579-580.) The evidence conclusively proved the crime occurred in the city of Merced; this evidence compelled the court to make the finding that Merced is an incorporated city. While the jury should have been so instructed, the instruction was, in essence, “simply superfluous: the jury has found … ‘every fact necessary’ to establish every element of the offense beyond a reasonable doubt. [Citations.]” (Rose v. Clark, supra, 478 U.S. at p. 581) Because the evidence of the location of pertinent events was undisputed and judicial notice was mandatory, we can confidently say, beyond a reasonable doubt, that the error complained of did not contribute to the verdict obtained. (Neder v. United States, supra, 527 U.S. at p. 15; Rose v. Clark, supra, 478 U.S. at p. 581.)
II. Ineffective assistance of counsel
Defendant contends his trial counsel rendered ineffective assistance of counsel by failing to request a limiting instruction in the language of CALJIC No. 2.50, in connection with Lor’s testimony describing a prior incident in which defendant purportedly assaulted and pointed a gun at Lor. We conclude defendant has not met his burden of showing that his counsel’s performance was ineffective. Accordingly, we do not address defendant’s claim of prejudice.
CALJIC No. 2.50 states, in pertinent part: “[Evidence has been introduced for the purpose of showing that the defendant committed [a crime] [crimes] other than that for which [he] [she] is on trial[.] [;] [and [in addition] evidence has been introduced for the purpose of showing criminal street gang activities, and of criminal acts by gang members, other than the crime[s] for which defendant[s] [is] [are] on trial.] [¶] [Except as you will otherwise be instructed,] [This] [this] evidence, if believed, [may not be considered by you to prove that defendant is a person of bad character or that [he] [she] has a disposition to commit crimes.…”
“To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, ‘“‘but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 569; see also Lockhart v. Fretwell (1993) 506 U.S. 364, 368-371; Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
In the instant case, trial counsel’s failure to request CALJIC No. 2.50 could be inferred to have resulted from an informed tactical choice within the range of reasonable competence. A limiting instruction would only have called more attention to the adverse evidence which had been admitted, and, therefore, counsel may have had a sound tactical reason not to highlight such evidence. As pointed out by the Court of Appeal in People v. Bonilla (1985) 168 Cal.App.3d 201, 206, in which the defendant claimed ineffective assistance of counsel because counsel failed to request a limiting instruction on the use of a prior conviction, “...[T]he record does not show why such an instruction was not requested. It may well be that trial counsel did not want such an instruction, believing that it would emphasize the prior conviction. Since the record is silent on counsel’s reasoning and a satisfactory explanation exists for not making the request, the case must be affirmed on appeal.”
The same is true here. Lor’s testimony, which covers only four pages of the reporter’s transcript, was notably brief relative to the other evidence presented in the case. In light of its brevity, counsel could have reasonably decided the instruction would have simply focused the jury’s attention on unfavorable evidence it might have otherwise paid less attention to. Because there appears to be a sound tactical reason for counsel’s failure to request the instruction, we must reject defendant’s claim that he received ineffective assistance.
III. Section 654
Defendant next invokes section 654, the statutory prohibition against multiple punishment. He argues that section precludes the imposition of punishment for the gang enhancement attendant to the count of carrying a loaded firearm in a public place, which was punishable as a felony based on his participation in a criminal street gang (§ 12031, subd. (a)(2)(C)). We disagree.
Section 12031, subdivision (a) provides in pertinent part: “(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.” In People v. Robles (2000) 23 Cal.4th 1106, our Supreme Court, noting that section 12031, subdivision (a)(2)(C) did not actually define the term “active participant in a criminal street gang,” interpreted the statutory language to mean that “carrying a loaded firearm in public becomes a felony under section 12031(a)(2)(C) when a defendant satisfies the elements of the offense described in section 186.22(a).” (People v. Robles, supra, 23 Cal.4th at p. 1115.)
Under section 654, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) The parties disagree over whether section 654 applies to enhancements. The California Supreme Court’s recent opinion in People v. Palacios (2007) 41 Cal.4th 720, unfortunately, does not answer this question in the context of enhancements other than those provided for in section 12022.53. However, assuming section 654 does generally apply to enhancements, it only precludes punishment for an enhancement when the basis for the enhancement is an element of the underlying crime. (See People v. Hutchins (2001) 90 Cal.App.4th 1308, 1314.) In other words, when “‘the underlying crime and the enhancement are not identical, there is and can be no double punishment under section 654.’ [Citation.]” (Ibid.)
Here, defendant’s underlying offense of carrying a loaded firearm in a public place as an active participant in a criminal street gang did not encompass the basis for the street gang enhancement. The active participation requirement targets “participation in the gang itself” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467, italics and fn. omitted), whereas the enhancement “creates additional punishment for anyone who commits a felony for the benefit of, at the direction of, or in association with a street gang.…” (Id. at p. 1467, fn. 12.) Because the elements of the enhancement are not identical to those in the underlying offense for which defendant was punished, section 654 is inapt.
IV. Imposition of the upper term
Defendant contends the trial court erred by imposing the upper terms on count 1 (carrying a loaded firearm) and the gang enhancement based on facts neither admitted by defendant nor found to be true beyond a reasonable doubt, relying on Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. We conclude there was no error.
In Cunningham, the United States Supreme Court held that California’s Determinate Sentencing Law violates a defendant’s right to a jury trial to the extent it permits a trial court to impose an upper term sentence based on aggravating factors found by the court instead of a jury. (Cunningham, supra, 127 S.Ct. at pp. 860, 868-871.) The Cunningham court expressly disapproved of our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I). (Cunningham, supra, 127 S.Ct. at p. 871.) In light of Cunningham, the United States Supreme Court vacated the judgment in Black I and remanded the matter to the California Supreme Court. (See Black v. California (2007) 127 S.Ct. 1210.) Upon remand, our Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II), in which it held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to a jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816, italics added.) In arriving at this conclusion, the court relied in part on the well established rule that “the right to a jury trial does not apply to the fact of a prior conviction,” citing United States Supreme Court decisions in Cunningham, supra, 127 S.Ct. at p. 868, Blakely v. Washington, supra, 542 U.S. at p. 301, Apprendi v. New Jersey (2000) 530 U.S. 466, 490, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 243. (Black II, supra, 41 Cal.4th at p. 818.) “‘[R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’” (Ibid.)
Here, the trial court cited the following aggravating factors in support of imposing the upper terms: (1) defendant’s prior sustained petitions in juvenile delinquency proceedings were numerous and of increasing seriousness; (2) defendant was on juvenile probation when the crime was committed; and (3) defendant’s prior performance on juvenile probation was unsatisfactory. !(RT 252, 254)! The court found no circumstances in mitigation. !(RT 252-253)!
The trial court’s imposition of upper terms for the carrying a loaded firearm conviction and the gang enhancement did not infringe upon defendant’s constitutional right to a jury trial under Cunningham. Where, as here, at least one legally sufficient aggravating circumstance is justified based upon a defendant’s history of recidivism, the trial court is authorized to impose the upper term. (Black II, supra, 41 Cal.4th at p. 816.) The trial court’s reliance on defendant’s prior juvenile adjudications supports the imposition of the upper terms.
Defendant argues that his prior juvenile adjudications are not equivalent to prior “convictions” and thus cannot provide the basis for imposing an upper term sentence. He relies on United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1192-1195 (Tighe), in which a divided panel of the Ninth Circuit Court of Appeals held that the “prior conviction” exception to the general rule requiring jury determination of aggravating sentencing factors does not extend to nonjury juvenile adjudications. The majority in Tighe reasoned that prior convictions constitute a constitutionally permissible sentencing factor only because they satisfy the “fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions: fair notice, reasonable doubt and the right to a jury trial.” (Id. at p. 1193.) According to the Tighe majority, juvenile adjudications that do not afford the right to a jury trial or require proof beyond a reasonable doubt do not fall within the prior conviction exception. (Id. at p. 1194.)
The Tighe court’s concern about juvenile adjudications requiring proof less than a reasonable doubt has no application to California juvenile adjudications. Under California law, a minor may be adjudged a ward of the court only upon proof beyond a reasonable doubt. (Welf. & Isnt. Code, §§ 602, 701.)
We are not obliged to follow the reasoning of Tighe, which has been rejected by every other federal appellate court that has considered the matter. (People v. Williams (1997) 16 Cal.4th 153, 190 [decisions of lower federal courts interpreting federal law not binding on state courts].) After the Ninth Circuit filed its decision in Tighe, its reasoning was rejected in unanimous decisions of the Eighth Circuit in United States v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032, the Third Circuit in United States v. Jones (3d Cir. 2003) 332 F.3d 688, 696, and the Eleventh Circuit in United States v. Burge (2005) 407 F.3d 1183, 1190. Likewise, with one exception, California appellate courts have declined to follow Tighe. (See People v. Tu (2007) 154 Cal.App.4th 735, 748-749; People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Palmer (2006) 142 Cal.App.4th 724, 733; People v. Smith (2003) 110 Cal.App.4th 1072, 1075; People v. Lee (2003) 111 Cal.App.4th 1310, 1312-1316; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Bowden (2002) 102 Cal.App.4th 387, 390; but see People v. Nguyen (2007) 152 Cal.App.4th 1205, 1224-1226 , review granted October 10, 2007, S154847 .)
The reported California decisions that have addressed the issue arise primarily in the context of whether it is proper to treat a juvenile adjudication as a strike under the Three Strikes Law.
In People v. Tu, supra, the appellate court addressed the very issue presented here, holding that a sentencing court may enhance an adult offender’s sentence on the basis of prior juvenile adjudications without violating the offender’s constitutional right to a jury trial. (People v. Tu, supra, 154 Cal.App.4th at p. 750.) The court concluded that “[t]he panoply of rights and protections extended to juveniles in this state infuse sufficient reliability into the juvenile adjudicative process to satisfy Apprendi .…” (Id. at p. 749.)
We agree with the analysis in Tu. The procedural rights afforded in a juvenile court proceeding suffice to ensure the reliability of a juvenile adjudication, and the lack of a jury trial does not undermine that reliability in any significant way. (See People v. Palmer, supra, 142 Cal.App.4th at p. 732.) Accordingly, the trial court’s finding that defendant’s prior sustained petitions in juvenile delinquency proceedings were numerous and of increasing seriousness was sufficient, in and of itself, to justify imposition of the upper terms for the carrying a loaded firearm conviction and the associated gang enhancement.
Indeed, the United States Supreme Court has stated that “[t]he imposition of the jury trial on the juvenile court system would not strengthen greatly, if at all, the factfinding function .…” (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 547.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., GOMES, J.