Opinion
F060744 Super. Ct. No. BF131610A
08-01-2011
THE PEOPLE, Plaintiff and Respondent, v. MARVIN RAYNA JOHNSON, JR., Defendant and Appellant.
Barbara J. Coffman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and David A. Rhodes, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Dawson, Acting P.J., Kane, J. and Poochigian, J.
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.
Barbara J. Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Marvin Rayna Johnson, Jr. was convicted of possession of cocaine base for sale and active participation in a criminal street gang. On appeal, defendant contends (1) there was insufficient evidence to support the active participation in a criminal street gang conviction, (2) there was insufficient evidence to support the gang enhancement, and (3) a finding of guilt based upon insufficient evidence violated his Fourteenth Amendment right to due process of law. We will affirm the judgment.
PROCEDURAL SUMMARY
On April 27, 2010, the Kern County District Attorney filed an information charging defendant with: violation of Penal Code section 245, subdivision (a)(1), assault with a deadly weapon (count 1); violation of Health and Safety Code section 11351.5, possession of cocaine base for sale (count 2); and violation of section 186.22, subdivision (a), active participation in a criminal street gang (count 3). The information further alleged as to counts 1 and 2 that the offenses were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). Each count also alleged that defendant had previously served a prior prison term within the meaning of section 667.5, subdivision (b), and that he had been convicted of a serious or violent felony within the meaning of section 667, subdivision (a) and the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
Unless otherwise stated, all statutory references are to the Penal Code.
On June 21, 2010, the prosecutor dismissed count 1.
Jury trial began on June 24, 2010. The issue of the prior conviction allegations was bifurcated for the purposes of trial.
On June 30, 2010, the jury found defendant guilty on both counts and the gang enhancement was found to be true. A court trial was held on the special allegations, and they were found to be true. Subsequently, the prosecutor dismissed the prior prison term allegation as to count 3.
Defendant was sentenced on July 29, 2010. The court selected the cocaine possession count as the principal term and imposed the upper term of five years, doubled pursuant to the Three Strikes law. This term was enhanced by four years pursuant to section 186.22, subdivision (b)(1). On the remaining count, the court imposed the upper term of three years, doubled under the Three Strikes law. The court however stayed this term pursuant to section 654. Finally, defendant's term was enhanced by five years pursuant to section 667, subdivision (a). The total term imposed was nineteen years.
FACTS
On April 5, 2010, at approximately 3:00 p.m., Officer Champness, accompanied by fellow officers, went to the Western Night Inn at 505 Union Avenue in Bakersfield to contact defendant regarding a separate investigation. After asking the manager where defendant's room was located, the officers went to defendant's room. Upon arriving at his room, they saw that the window was partially covered by a sheet, but they could still see into the room. The officers saw defendant sitting on the bed and saw a "chunky off-white substance" on the chair next to the door that appeared to be drugs.
The officers made eye contact with defendant. When defendant jumped up, the officers entered the room because they were worried he was going to dispose of the drugs. After they detained defendant, they saw that there were numerous items in the room suggesting that defendant was selling crack cocaine base from the room. Some of the items that were seized from the room included large amounts of cash and pay-and-owe sheets. The officers also found 32 individually packaged bindles of cocaine base in defendant's room.
Officer Kroeker, an expert on gang evidence who came into contact with gang members on a regular basis, testified that the Western Night Inn was within the territory of the West Side Crips (WSC). He had arrested WSC members at that location. He testified that it was a safe location for these members because it lay within their boundaries. The expert stated, "it's my experience that gang members will conduct and do illegal activities from a location in which they feel comfortable or which is controlled by that gang." He also stated that "narcotics sales [are] one of the primary activities of the West Side Crips," and the proceeds made from illegal narcotics sales go toward buying firearms. With those firearms, they can "do shootings, they can protect themselves from rival gang members that want to shoot them, [and] they can buy more narcotics and make more money. The money can be used for a variety of ways, for posting bail for other gang members, for buying all kinds of stuff that can subsequently be used to benefit the gang."
The expert testified that "[i]f a subject is selling illegal narcotics from an area that's controlled by that gang, a portion of that currency or the proceeds from those illegal narcotic sales is being given up the food chain to the older person, the shot caller, so to speak. [¶] So by . . . selling illegal narcotics in an area such as [] the Western Night Inn[,] . . . [i]t provides the older members with funds[,] and helps them operate from a day-to-day level." Based on his training and experience, the expert stated, "if someone [who] wasn't associated with the West Side Crips, was at that location selling illegal narcotics, it usually wouldn't go over very smooth.... [T]hat person would have to probably pay some type of money to the person who was controlling that area or [to] some of the guys in that area[; otherwise,] they could be beaten up, shot, [or] stabbed."
Evidence indicated that defendant was a member of the WSC. The expert reviewed eight bookings for defendant stemming from June 2002 to the present. On every one of those bookings, when asked which gang he belonged to or associated with, defendant claimed the WSC. He also had a tattoo that said "original ridah," that most likely referred to the term "rider," which in gang context meant someone who would go out and do shootings. Another tattoo on defendant's body said "Lowell Park," which is the hangout for WSC members. Furthermore, nine out of 12 offense reports on defendant provided the expert with information that led him to conclude that defendant was still an active WSC member. Inter alia, the reports included crimes defendant had committed that were consistent with gang crimes.
DISCUSSION
I. Standard of Review
The substantial evidence standard of review applies to gang enhancements and gang participation convictions. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.) "Our review of the sufficiency of the evidence is deferential. We review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We focus on the whole record, not isolated bits of evidence. [Citation.] We presume the existence of every fact the trier of fact could reasonably deduce from the evidence that supports the verdict. [Citation.] If the verdict is supported by substantial evidence, we accord due deference to the verdict and will not substitute our evaluations of the witnesses' credibility for that of the trier of fact. [Citation .]" (People v. Killebrew (2002) 103 Cal.App.4th 644, 660; In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) Substantial evidence includes circumstantial evidence and the reasonable inferences this evidence allows. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) "We may reverse for lack of substantial evidence only if '"upon no hypothesis whatever is there sufficient substantial evidence to support"' the conviction or the enhancement. [Citation.]" (People v. Garcia (2007) 153 Cal.App.4th 1499, 1508.)
II. Gang Enhancement
To establish a gang enhancement, the prosecution must prove two elements: (1) that the crime was "committed for the benefit of, at the direction of, or in association with any criminal street gang," and (2) that the defendant had "the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).) The crime must be "gang related." (People v. Gardeley (1996) 14 Cal.4th 605, 622, 625, fn. 12; People v. Albillar (2010) 51 Cal.4th 47, 60; People v. Castenada (2000) 23 Cal.4th 743, 745 [gang enhancement statute "increases the punishment for some gang-related crimes"]; People v. Mendez (2010) 188 Cal.App.4th 47, 56 [gang enhancement statute "applies when a crime is gang related"].) "Not every crime committed by gang members is related to a gang." (People v. Albillar, supra, at p. 60.) A defendant's mere membership in the gang does not suffice to establish the gang enhancement. (People v. Gardeley, supra, at pp. 623-624; In re Frank S., supra, 141 Cal.App.4th at p. 1199.) Rather, "'[t]he crime itself must have some connection with the activities of a gang.'" (In re Frank S., supra, at p. 1199; accord, People v. Martinez (2004) 116 Cal.App.4th 753, 762 [§186.30 context].)
The prosecution must also 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." (People v. Gardeley, supra, 14 Cal.4th at p. 617, italics omitted.) Defendant does not challenge the evidence concerning these elements, and thus implicitly concedes the sufficiency of the evidence supporting them.
"[T]o prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs. [Citation.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048; People v. Ferraez, supra, 112 Cal.App.4th at p. 930 ["It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a . finding on a gang allegation"].) "'Generally, an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth." [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence, however. [Citations.]' [Citation.]" (People v. Ward(2005) 36 Cal.4th 186, 209.) But "[a] gang expert's testimony alone is insufficient to find an offense gang related." (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.) Rather, the expert testimony must be accompanied by some substantive factual evidentiary basis from which the jury could reasonably infer the crime was gang related. (Id. at p. 660 ["something more than an expert witness's unsubstantiated opinion that a crime was committed for the benefit of, at the direction of, or in association with any criminal street gang is required to justify a true finding on a gang enhancement"]; People v. Ramon (2009) 175 Cal.App.4th 843, 852; People v. Morales (2003) 112 Cal.App.4th 1176, 1198; People v. Ferraez, supra, at p. 931.)
A. First Element
Defendant contends the evidence was insufficient to show that the drug sales benefitted the WSC gang. As we have explained, the first element of the gang enhancement may be satisfied by any one of three prongs—the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).)
Here, the evidence showed that the crime was committed for the benefit of the WSC. Defendant was arrested at the Western Night Inn with over 32 bindles of cocaine base in his possession. This indicated that he was selling narcotics out of the motel, which was known as a safe area for WSC members because it is under the WSC's control and protection. Evidence showed history of the WSC's activities in this area: in the past, several WSC members were arrested at this location for selling narcotics. The expert testified that the WSC relied on income from these narcotics sales. Given his training and experience with criminal street gangs, he believed that a portion of the money made from these sales went towards buying guns and funding other gang activities. Because the money was important to the WSC, and because the motel where defendant was arrested was within WSC territory, it was reasonable to infer that defendant was selling drugs either under the WSC's direction or with its permission. The expert testified that a nonmember would not have been allowed to sell drugs in this area. From this evidence, a jury could reasonably infer that the money defendant was making from the drug sales was going to benefit the WSC, and thus the first element was satisfied.
B. Second Element
Defendant also maintains the evidence was insufficient to establish his specific intent to benefit the gang. He argues that the gang expert's testimony that the drug sales were not for defendant's selfish purposes, which defendant claims was the sole evidence presented on the issue, did not constitute substantial evidence of the second element— that defendant acted with "the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).) We disagree.
The mental element of the gang enhancement requires substantial evidence from which a jury can infer that in committing the gang-related criminal act, the defendant specifically intended to engage in or promote criminal gang conduct. (People v. Albillar, supra, 51 Cal.4th at p. 68.) A finding of specific intent requires a subjective desire. (See 1 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Elements, § 5, p. 204.) However, "[i]ntent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense." (People v. Pre (2004) 117 Cal.App.4th 413, 420.)
"There is no requirement in section 186.22, subdivision (b), that the defendant's intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits. To the contrary, the specific intent required by the statute is 'to promote, further, or assist in any criminal conduct by gang members.' [Citation.] Therefore, defendant's own criminal [act] qualifie[s] as the gang-related criminal activity. . . . [¶] . . . [T]here is no requirement in section 186.22 that the crime be committed with the intent to enable or further any other crime ...." (People v. Hill (2006) 142 Cal.App.4th 770, 774.) This is not to say, however, that a gang member's intent to merely commit the crime—that is, to promote his own criminal act— suffices to establish the specific intent required by the statute. But when the circumstances surrounding the crime establish that the crime itself was related to the activities of the gang, an inference of specific intent to promote criminal conduct by gang members reasonably may be drawn. (See In re Frank S., supra, 141 Cal.App.4th at p. 1199.)
In our opinion, a reasonable jury could infer from the circumstances of the crime and the customs and priorities of the WSC that defendant intended his drug sales to have the effect of providing income for the WSC. This income, as testified by the expert, provided the WSC with the opportunities to further their criminal interests by purchasing weapons for the commission of other crimes. Thus, sufficient evidence supported the mental element of the gang enhancement.
III. Active Participation in a Gang
Under section 186.22, subdivision (a), a person may be convicted of a substantive gang participation offense, also called street terrorism. The statute punishes "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang. . . . " (§ 186.22, subd. (a).) This crime consists of three elements: (1) the defendant actively participates in a criminal street gang (the active participation element); (2) the defendant knows at the time of such participation that members of the gang have or are engaged in a pattern of criminal gang activity (the pattern of activity element); and (3) the defendant willfully promotes, furthers, or assists any felonious conduct by members of the gang (the willfully assisted element). The Supreme Court has recently confirmed that this third element does not require that the conduct be gang related; as the statute plainly states, the conduct need only be felonious criminal conduct. (People v. Albillar, supra, 51 Cal.4th at pp. 66-67.) "Contrary to what is required for an enhancement under section 186.22[, subdivision ](b), section 186.22[, subdivision ](a) does not require that the crime be for the benefit of the gang. Rather, it 'punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself.' [Citation.]" (People v. Martinez, supra, 158 Cal.App.4th at p. 1334.)
Defendant challenges the first element, contending there was insufficient evidence to show that he actively participated in the WSC. But the expert's testimony here revealed the WSC closely controlled drug sales by nonmembers and members alike out of that area. Nonmembers who dared to sell without permission faced being beaten up, shot, or stabbed. The jury could reasonably conclude defendant's willingness to engage in drug sales meant he agreed to the terms of the trade established by his gang. Contrary to what defendant asserts, no evidence suggested he transacted sales independently. The jury could reasonably conclude that defendant had been a member of the WSC for a significant period of time, and that during that time, he knew of and abided by the WSC's rules for drug sales. Accordingly, sufficient evidence shows that defendant sold drugs on behalf of his gang, and thus was actively participating in the WSC.
IV. Due Process
Defendant lastly contends that because his convictions are not supported by sufficient evidence, his due process rights have been violated. Having concluded that sufficient evidence supports the gang enhancement and the active participation conviction, we conclude this issue is without merit.
DISPOSITION
The judgment is affirmed.