Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FSB48050, Douglas A. Fettel, Judge.
Phillip I. Bronson, 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, and David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Jamal January appeals from his conviction of having a concealed firearm in a vehicle (Pen. Code, § 12025, subd. (a)(1)) and the jury’s true finding that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Defendant contends the evidence was insufficient to support the true finding on the gang enhancement. We disagree. Defendant also contends that because the People did not prove he participated in felonious gang conflict distinct from the weapons offense, his conviction of the weapons offense must be reduced to a misdemeanor. Although we agree that the evidence did not support elevating the weapons offense to a felony under section 12025, subdivision (b)(3), defendant admitted a prior felony conviction which independently served to elevate the weapons offense to a felony, under section 12025, subdivision (b)(1). Defendant also challenges his sentence on the grounds that (1) applying section 186.22, subdivisions (a) and (b), violated the rule against multiple punishment under section 654; (2) the one-year enhancement for a prior prison term conviction must be stricken; and (3) the imposition of the aggravated term for his firearm offense violated his constitutional right to a trial by jury. We agree that the one-year term under section 667.5, subdivision (b), must be stricken because it was based on the same prior conviction that supported the imposition of a five-year enhancement under section 667, subdivision (a). We find no other errors, and in all other respects we will affirm the judgment.
All further statutory references are to the Penal Code.
II. FACTS AND PROCEDURAL BACKGROUND
On January 27, 2005, San Bernardino Police Officer Travis Walker spotted defendant in a parked vehicle in San Bernardino in an area known as a congregation point for gang members. When Officer Walker pulled up, defendant began to back his vehicle away, and Officer Walker noticed that defendant’s vehicle did not have a front license plate. Officer Walker knew that persons engaged in criminal activity sometimes removed their vehicles’ license plates to avoid being identified. Officer Walker initiated a traffic stop of defendant’s vehicle.
Officer Walker recognized Eric Anderson, a documented member of the Inland Empire Projects/Black Rag Mafia (hereafter sometimes referred to as IEP) gang as a passenger in the vehicle. There had been shootings in the area involving the IEP and rival gangs, and Officer Walker was in the area to attempt to quell further gang violence.
Defendant was wearing a brown baseball cap over a black bandanna, a brown and white football jersey, and light brown pants. Officer Walker asked defendant for permission to search the car. Defendant said the car did not belong to him, and he would have to call his uncle in Arizona; the car’s rear license plate was an Arizona dealer advertising placard. Officer Walker decided to impound the vehicle and conduct an inventory search.
Defendant became agitated and would not surrender his keys. With the assistance of Officer Baker, Officer Walker removed defendant’s keys from his pocket and opened the car door. The officers recovered a compact disc from the front seat with “IE Projects 10th Street and 1600 Blocc” and the moniker “Maldy 2” written on it.
Officer Baker removed a gun from underneath the driver’s seat. With the driver’s door open, the gun could be seen on the floorboard. The gun was loaded with .25-caliber ammunition, a popular size because it was a small round that fired at high velocity and ensured more damage. The gun was also small enough to be easily concealed in clothing, and the officer testified “[t]he object is to maximize the concealment of a weapon.” The officers also found two black bandannas wrapped around the vehicle’s steering wheel and black bandannas fixed to the air-conditioning vent and to the dashboard along with a photograph of Jamal Macon and a photograph of another person displaying a gang hand sign.
Defendant had the letter “P” with the word “Inland” tattooed on one triceps and the letters “J’s” with the word “Empire” on the other triceps. Officer Walker testified the tattoos indicated membership in the IEP gang. Defendant also had a tattoo on his arm with the words “Maldy 2.” Defendant told Officer Walker that Jamal Macon, who had been murdered in late 2004, was his “big homey,” or big brother. Before Macon’s murder, he had been a member of the IEP and had been “looked up to and highly respected based on certain accomplishments.” With Macon gone, defendant was “at the top of the pecking order and of the Maldys.”
Another tattoo on defendant depicted “[t]he letters WSIE, which would stand for West Side Inland Empire; the word Projects; 1600, 1-6-0-0, Blocc, and it appears that the C has been crossed out of block. And then . . . the letter C and K and again the C is crossed out.” Officer Walker explained that the C and K indicated “Crip Killer,” and crossing out the “C” indicated “[t]heir detest for the letter C in Crips.” Finally, defendant had a tattoo of “Red Rum,” which, as Officer Walker testified, stands for murder spelled backwards.
Officer Walker testified as an expert on gangs, particularly on the IEP. He testified that defendant was a member of the IEP, a criminal street gang, which had approximately 75 members, about 35 of whom were active in 2006. The gang’s color was black, and gang members identified themselves with a black handkerchief or black rag. Defendant’s gang moniker was Maldy 2; Macon, who had been murdered in late 2004, had been called Maldy. The gang’s primary criminal activities were carjacking, vehicle theft, assault with a deadly weapon, and shooting at inhabited dwellings. Officer Walker testified as to prior convictions of two other members of the IEP as predicate crimes.
Based on defendant’s tattoos, the black bandannas and the way they adorned the interior of the vehicle, the writing on the compact disc, the loaded weapon, and the presence of another gang member, Officer Walker testified that in his opinion, defendant was a member of the IEP. Officer Walker testified that in his opinion, if two gang members drove in a vehicle within a gang’s turf, and one of the gang members was armed with a loaded weapon, the situation would benefit the gang. Officer Walker further testified that in his opinion, based on the facts of the case, the crime was committed to promote or benefit the IEP gang.
Defendant’s fingerprints were not found on the gun.
The jury found defendant guilty as charged and found the criminal street gang enhancement true. (§§ 12025, subd. (a)(1), 186.22, subd. (b)(1).) The trial court found that defendant’s prior conviction in Nevada for battery with use of a deadly weapon was a strike offense, a serious felony, and a prison prior (§§ 1170.12, subd. (a)-(d), 667, subd. (b)-(i), 667, subd. (a)(1), 667.5, subd. (b).)
The trial court sentenced defendant to the aggravated term of three years for the violation of section 12025 subdivision (a)(1), and doubled the term because of defendant’s strike prior. The trial court imposed a consecutive four-year enhancement under section 186.22, subdivision (b)(1) gang enhancement; five years for the section 667, subdivision (a)(1) serious prior felony conviction; and one year for the section 667.5, subdivision (b) prior prison term enhancement, for a total sentence of 16 years. The trial court did not state specific reasons on the record for imposing the aggravated sentence. However, the trial court indicated it had read the probation memorandum, which recommended the 16-year sentence.
III. DISCUSSION
A. Sufficiency of the Evidence
Defendant contends the evidence was insufficient to support the true finding on the gang enhancement under section 186.22, subdivision (b)(1). In addition, because the evidence did not show that defendant participated in gang conduct distinct from the weapons offense, defendant argues that his conviction under section 12025, subdivision (a)(1) must therefore be reduced to a misdemeanor. (People v. Lamas (2007) 42 Cal.4th 516, 524-525.)
1. Standard of Review
When a criminal defendant challenges the sufficiency of the evidence to support a conviction, the reviewing court examines the evidence to determine whether any rational trier of fact could have found the elements of the offense true beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) The same standard of review applies to true findings on enhancement allegations. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.) Substantial evidence is evidence that is “reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
2. Analysis
A true finding on a gang enhancement under section 186.22, subdivision (b)(1), requires proof that the defendant committed crimes in one of three ways: (1) “for the benefit of,” (2) “at the direction of,” or (3) “in association with any criminal street gang.” (§ 186.22, subd. (b)(1); People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Defendant contends none of these factors was proven. Defendant also contends that Officer Walker’s expert opinion was, standing alone, insufficient to sustain the jury’s true finding on the gang enhancement.
To support his argument, defendant cites People v. Ferraez (2003) 112 Cal.App.4th 925 (Ferraez), People v. Martinez (2004) 116 Cal.App.4th 753 (Martinez), and In re Frank S. (2006) 141 Cal.App.4th 1192. However, as we discuss below, we find those cases unsupportive of defendant’s position.
In Ferraez, when the defendant, a gang member, was arrested for possessing cocaine for sale, he told the arresting officer he was selling the drugs to make money to buy a car, and he denied selling drugs for his gang, although another gang had given him permission to sell drugs at the location. In response to a hypothetical question, a prosecution expert stated his opinion that the drugs were possessed for sale for the benefit of or in association with a gang and to promote, further, and assist criminal conduct by the gang. (Ferraez, supra, 112 Cal.App.4th at p. 928.) On appeal, the court held the jury could rely on expert testimony about gang culture and habits to reach a verdict on a gang allegation, and the expert testimony could embrace an ultimate issue such as specific intent when the testimony was necessary to explain matters sufficiently beyond the common experience of the jurors. (Id. at p. 930.) The court continued, “Undoubtedly, the expert’s testimony alone would not have been sufficient to find the drug offense was gang related. But here it was coupled with other evidence from which the jury could reasonably infer the crime was gang related. Defendant planned to sell the drugs in Las Compadres gang territory. His statements to the arresting officer that he received permission from that gang to sell the drugs at the swap mall and his earlier admissions to other officers that he was a member of Walnut Street, a gang on friendly terms with Las Compadres, also constitute circumstantial evidence of his intent.” (Id. at p. 931.)
Here, the evidence showed that defendant committed the firearm offense in IEP territory, specifically, at a known congregation point for IEP members where recent gang shootings had occurred. Moreover, defendant committed the firearm offense in conjunction with another documented IEP member. At the time of the offense, both defendant and Anderson wore clothing that identified them as IEP members and the car was decorated with IEP gang paraphernalia. Defendant displayed a tattoo bearing his gang moniker, “Maldy 2” and referred to “Maldy,” a deceased IEP member, as “his big homey” or “big brother.” Anderson was identified as “Maldy 5.” Thus, Officer Walker’s expert opinion that the offense would benefit the gang and that it was committed for the benefit of the gang was supplemented by considerable other circumstantial evidence of defendant’s gang-related intent.
In Martinez, in which the trial court imposed a gang condition as a term of probation, the court held, “[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.” (Martinez, supra, 116 Cal.App.4th at p. 762, original italics omitted.) As discussed above, the record before us provides ample evidentiary support for the jury’s true finding on the enhancement allegation.
In Frank S., a minor was found in possession of a fixed blade knife, a bindle of methamphetamine, and a red bandanna. He said he needed the knife for protection against “the Southerners” because he supported northern gangs, and the gang expert testified the minor possessed the knife to protect himself and the knife could also be used to assault rival gang members. (Frank S., supra, 141 Cal.App.4th at p. 1195.) The court held the expert testimony was insufficient to support the gang enhancement. The court explained, “[U]nlike in other cases, the prosecution presented no evidence other than the expert’s opinion regarding gangs in general and the expert’s improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang . . . .’ (§ 186.22, subd. (b)(1).) 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.” (Id. at p. 1199.) Here, in contrast, defendant was in known gang territory in the company of another known gang member in a car festooned with gang paraphernalia, and the recent gang shootings had occurred in that very area.
Defendant also relies on federal authority to support his position. In Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), the court held the evidence was insufficient to support the jury’s finding that the defendant committed a robbery with the specific intent to facilitate criminal conduct by his gang. (Id. at p. 1103.) The court reasoned that the jury was required to find specific intent to “‘promote, further, or assist in’ other criminal activity of the gang apart from” the robbery of which the defendant was convicted. (Id. at pp. 1100-1101, italics added.)
However, federal cases are not binding in matters involving state law (People v. Burnett (2003) 110 Cal.App.4th 868, 882), and California courts have rejected the Garcia court’s reasoning and conclusion. Thus, in People v. Romero (2006) 140 Cal.App.4th 15, 19 (Romero), the court held that Garcia was wrongly decided, and a gang enhancement was properly applied to a defendant on evidence that he intended to promote, further, or assist his codefendant in the shooting charged “rather than other criminal conduct.” (Romero, supra, at p. 19; see also People v. Hill (2006) 142 Cal.App.4th 770, 774 [disagreeing with Garcia’s interpretation of section 186.22, subdivision (b)(1)].) We join with the Romero and Hill courts in holding that Garcia misinterpreted California law.
We conclude the evidence was amply sufficient to support the true finding on the gang enhancement under section 186.22, subdivision (b)(1).
B. Applicability of Section 12025, Subdivision (b)(3)
After briefing was completed in this case, the California Supreme Court issued its opinion in Lamas, supra, 42 Cal.4th 516, holding that to elevate a misdemeanor weapons offense to a felony on the basis of gang status, the People were required to prove that the defendant participated in felonious gang conduct distinct from the weapons offense. (Id. at pp. 524-525.) We invited the parties to provide additional briefing on the applicability of Lamas to the case before us, and the People conceded that the “‘active participant’ requirement of section 12025, subdivision (b)(3), cannot be satisfied, and Count 1 could not be punished as a felony under that sentencing factor.”
The People further argue, however, and we agree, that an independent basis exists for elevating defendant’s weapons offense to a felony under section 12025, subdivision (b)(1), which states that a weapons offense is a felony “[w]here the person previously has been convicted of any felony, or of any crime made punishable by this chapter, as a felony.” The information pled, and it was proved at trial, that defendant had previously been convicted of a felony.
C. Section 654
Defendant was sentenced to the aggravated term of three years (doubled to six years because of his prior strike) for his offense of having a concealed firearm in a vehicle. (§ 12025, subd. (a).) In addition, the trial court imposed a four-year gang enhancement under section 186.22, subdivision (b)(1). Defendant contends his separate sentences for the firearm violation and for the gang enhancement violated section 654 because “there was only one intent and objective, i.e., having a concealed firearm in the vehicle while an active participant in the gang.” He argues that the single, indivisible act resulted both in the crime being treated as a felony pursuant to section 12025, subdivision (b)(3), and as the basis for the four-year enhancement under section 186.22, subdivision (b)(1).
As discussed above, we have concluded that section 12025, subdivision (b)(3) does not apply to defendant’s crime, and his argument is therefore moot.
D. Separate Enhancements Under Sections 667.5, Subdivision (b) and 667, Subdivision (a)
Defendant contends his one-year enhancement for a prior prison term (§ 667.5, subd. (b)) must be stricken because the same conviction for which he received the prison term was used as the basis for a five-year enhancement under section 667, subdivision (a)(1). The People concede error. (See People v. Jones (1993) 5 Cal.4th 1142, 1152-1153.)
The People observe, however, that the proper remedy is to stay rather than strike the prior prison term enhancement. (People v. Lopez (2004) 119 Cal.App.4th 355, 364.) We will therefore order the one-year enhancement under section 667.5, subdivision (b) stayed.
E. Sentencing Issues
Defendant contends the trial court violated his constitutional right to a jury trial by imposing the aggravated term without relying on facts found by the jury and by relying on his prior Nevada battery conviction both to justify the aggravated term on count 1 and as the basis for a five-year enhancement under section 667, subdivision (a). Defendant also contends the trial court erred in failing to state reasons for its sentencing choice.
1. Failure to State Reasons for Sentencing Choices
The trial court did not state specific reasons on the record for imposing the aggravated sentence. However, the trial court indicated it had read the probation memorandum which recommended the 16-year sentence. Selecting a term other than the middle term for an offense or enhancement is a sentencing choice as to which the trial court must state its reasons for selecting such a term. (People v. Hunter (1986) 184 Cal.App.3d 1531, 1536.)
However, defendant has forfeited any claim based on the trial court’s failure to state its reasons because defendant never raised the issue in the trial court. (People v. Zuniga (1996) 46 Cal.App.4th 81, 84.)
2. Imposition of Aggravated Term
Citing Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) ___ U.S. __ [127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham), defendant contends the trial court’s imposition of the aggravated term for the firearm offense was error, assuming that decision was based on factors not found by the jury beyond a reasonable doubt.
After briefing was completed in this case, however, the California Supreme Court filed its opinion in People v. Black (2007) 41 Cal.4th 799 (Black) reaffirming the principle that only a single aggravating factor makes it lawful for the trial court to impose an aggravated term sentence. (Id. at p. 815.) The court also reaffirmed the principle that “the right to a jury trial does not apply to the fact of a prior conviction.” (Id. at p. 818.) This exception for recidivism is not limited to the fact of a defendant’s prior conviction, but includes “the defendant’s status as a probationer or parolee at the time the current offense was committed and the existence of ‘numerous’ or increasingly serious prior convictions.” (People v. Velasquez (2007) 152 Cal.App.4th 1503, 1514.)
Defendant’s probation report showed that defendant, born in 1979, had misdemeanor convictions in 1998 for carrying a concealed weapon on a vehicle (§ 12025, subd. (a)(1)) and carrying a loaded firearm in a public place (§ 12031, subd. (a)(1)); misdemeanor convictions in August 2005 based on 1998 possession of marijuana (Health & Saf. Code, § 11357, subd. (b)), and failure to appear (§ 853.7); the felony conviction for battery with use of a deadly weapon in Nevada in 1998; misdemeanor convictions of failure to appear and false report to law enforcement in Arizona in 2003; and a felony drug conviction in Arizona in 2004. The probation report listed as factors in aggravation that defendant’s prior convictions were numerous, defendant had served one prior prison term, defendant was on probation when he committed the current crime, and his prior performance on probation was unsatisfactory. The report listed no factors in aggravation other than those recidivism factors and listed no factors in mitigation.
The recidivism factors set forth in the probation report support defendant’s aggravated sentence. Because Black establishes that defendant was not entitled to a jury trial on his prior convictions (Black, supra, 41 Cal.4th at pp. 819-820) the rule of Blakely, Apprendi, and Cunningham does not apply, and the trial court did not err in imposing the aggravated sentence.
3. Dual Use of Prior Nevada Battery Conviction
Finally, defendant contends use of his prior Nevada battery conviction to justify the aggravated term on count 1 would constitute impermissible dual use of facts. However, defendant’s challenge has been forfeited by failure to raise it in the trial court (People v. Scott (1994) 9 Cal.4th 331, 353, People v. Brandon (1995) 32 Cal.App.4th 1033, 1054), and, moreover, any dual use error was harmless. As discussed above, defendant had numerous prior adult convictions in addition to the Nevada battery conviction. Thus, even without the Nevada battery conviction, defendant’s record amply supports the use of recidivism factors to justify the imposition of the aggravated term.
IV. DISPOSITION
The one-year term imposed under section 667.5, subdivision (b), is ordered stayed. The trial court shall forward a corrected abstract of judgment showing the modified sentence to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RICHLI, J. KING, J.