Opinion
A130403
11-30-2011
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER DANIEL MADRID, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC069755A)
Appellant Christopher Daniel Madrid appeals from a judgment entered after a jury convicted him of being a felon in possession of a firearm, (Pen. Code, § 12021, subd. (a) (1)) carrying a concealed weapon while an active member of a criminal street gang, (§ 12025, subd. (b)(3)) and being a felon in possession of ammunition (§ 12316, subd. (b) (1)). He contends his conviction must be reversed because (1) one of the counts is not supported by substantial evidence, (2) the trial court instructed the jurors incorrectly, and (3) the court erred when sentencing him. We agree the court committed sentencing error and will order the appropriate modification. In all other respects, we will affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 23, 2009, near 7:15 p.m., Detective Nick Perna of the Redwood City Police Department and Detectives Ken Clayton and John Sabel of the San Mateo County Sheriff's Office were on patrol in an unincorporated portion of Redwood City when they noticed appellant and three or four others drinking in the area where Dumbarton Street intersects some railroad tracks. The area is known to be the territory of the Little Mexico Gang subset of the Norteño street gang and a second group of two or three individuals was standing nearby at the intersection of Dumbarton and Calvin streets. One of the persons in the smaller group was Jose Cortez, a known Norteño gang member.
As the detectives approached the larger group, appellant complained to Detective Sabel saying, "why are you coming at me all hard[?]" Appellant then said something like "you know who I am, and you need to check my C file" referring to his prison file. Appellant told Sabel he had been in the specialty housing unit (SHU) at Pelican Bay State Prison. It seemed that appellant was "trying to come off as being hard" and that he was trying to relay the fact that "he was someone of importance . . . ." Appellant also displayed a "Norte" tattoo on his bicep telling Sabel, "that's who I am." When Sabel saw the tattoo he realized appellant was a Norteño. Appellant then informed Sabel, "I'm Danny boy . . . you need to ask some people in Redwood City what I'm all about."
As they continued to talk, appellant complained to detective Sabel about younger Norteños and how when they go to prison, they go "into protective custody instead of going into . . . . general housing." Appellant looked at Cortez when he made the statement.
Shortly thereafter, the detectives left telling appellant and his companions to clean up their beer cans.
Later that evening around 11:30 p.m., Detectives Sabel, Perna, and Clayton were still on patrol when they saw a man dressed completely in black about three blocks from where they had contacted appellant earlier. Suspicious, the detectives stopped their car and identified themselves. The man, appellant, turned around. As soon as appellant saw the detectives, he reached into his pants, withdrew a silver handgun, and dropped it into a nearby flowerbed.
The detectives arrested appellant and searched him. He had five rounds of .357-caliber ammunition in the pocket of his pants. The detectives then located the handgun that appellant had discarded. It was a fully loaded .357-caliber magnum.
Based on these facts, an information was filed charging appellant with the offenses we have set forth above. As is relevant here, the information also alleged that appellant had one prior strike within the meaning of the three strikes law, (§ 1170.12, subd. (c)(1)) and had suffered a prior serious felony conviction. (§ 667, subd. (a)(1).)
The case proceeded to trial where the prosecution presented the evidence we have set forth above. The prosecution then supported its case with testimony from several additional witnesses. Detective Clayton testified that appellant was an active member of the East Side Mara subset of the Norteño street gang. According to Clayton, tension existed between members of the Little Mexico Group and those in the East Side Maras.
Detective Jamie Draper of the Daly City Police Department testified as an expert about the Norteño street gang. He opined that someone who had been to prison, who had been housed in the SHU at Pelican Bay, and who had tattoos similar to those appellant had, would be someone of significance for other Norteños. According to Draper, such a person would have a leadership role and likely be a "shot caller for his home town gang."
The jurors considering this evidence convicted appellant on all three counts.
In a court trial that followed, the court found the prior strike and prior conviction allegations to be true.
Subsequently, the court sentenced appellant to seven years, eight months in prison.
II. DISCUSSION
A. Sufficiency of the Evidence
As we have stated, appellant was convicted of carrying a concealed weapon while an active member of a criminal street gang within the meaning of section 12025, subdivision (b)(3). As is relevant here, that section makes it a felony to carry a concealed weapon "[w]here the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22 . . . ." Our Supreme Court has interpreted section 12025, subdivision (b)(3) to mean that a person commits the crime identified in that section only when all the requirements of section 186.22, subdivision (a) are satisfied. (People v. Lamas (2007) 42 Cal.4th 516, 524-525.) We therefore turn to the latter statute. Section 186.22, subdivision (a) states: "Any 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, shall be punished . . . ."
Appellant now contends the evidence was insufficient to support the third element of a section 186.22, subdivision (a) offense. Specifically, appellant argues the evidence was insufficient to support the conclusion that by carrying a concealed weapon he was promoting, furthering or assisting felonious criminal conduct by members of his gang.
We reject this argument because it is based on the assumption that the felonious criminal conduct a defendant promotes, furthers or assists must benefit his gang. That is incorrect. The court in People v. Schoppe-Rico (2006) 140 Cal.App.4th 1370 (Schoppe-Rico), faced this issue squarely. The defendant in Schoppe-Rico was convicted on several gang-related counts including a section 12025, subdivision (b)(3) offense. (Id. at p. 1376.) On appeal, he challenged the sufficiency of the evidence arguing there was no evidence he had committed his crimes in connection with his status as an active participant in a criminal street gang. (Id. at p. 1378.) The Schoppe-Rico court rejected that argument as follows: "To construe the street gang firearm statutes as including a gang connection element, as advocated by appellant, not only would strain their language, but also would render them almost entirely unnecessary. [Citation.] As pointed out in [People v. Robles (2000) 23 Cal.4th 1106], if so construed, the statutes would be subsumed under the firearm enhancement provision set forth in section 12021.5, subdivision (a), except where the underlying section 186.22(a) offense was treated as a misdemeanor. Appellant has cited no legislative history or other authority supporting the view that the Legislature intended the street gang firearms statutes to have such an extremely narrow application. On the contrary, it appears far more likely, as Robles surmised, that the Legislature intended the street gang firearms statutes to make it possible to convict active gang members of a felony whenever they are found in possession of a loaded or concealed firearm, even when the prosecution cannot establish any temporal or causal connection between the firearm possession and gang activity. [Citation.]" (Schoppe-Rico, supra, 140 Cal.App.4th at p. 1381.)
We agree with Schoppe-Rico and reach the same conclusion here. Appellant's conviction need not be reversed simply because the evidence did not establish that by carrying a concealed weapon, he was promoting, furthering or assisting felonious criminal conduct by members of his gang.
Appellant acknowledges Schoppe-Rico in his reply brief and he adopts a somewhat different argument. He contends the evidence was insufficient because there was no evidence that he ever promoted, furthered or assisted felonious criminal conduct by members of his gang. This is simply incorrect. One of the witnesses at trial testified that appellant was not just a member of the Norteño gang. Appellant's tattoos and the fact that he had spent time in prison and had been housed in the SHU at Pelican Bay all indicated appellant was a leader and "shot caller" of his gang. Other evidence indicated that appellant's Norteño gang was engaged in a "war" with the rival Sureño gang and that several members of appellant's gang had committed serious gang-related crimes including attempted murder, and assault with a deadly weapon. It would be reasonable to conclude that appellant, as a leader and "shot caller" of his gang, promoted, furthered or assisted the felonious criminal conduct that was committed by his fellow gang members. We conclude the evidence was sufficient.
At oral argument, appellant appeared to advance yet another different argument. Appellant argued that a person comes within the definition of section 186.22, subdivision (a) only if he has, at some point in time, personally committed some gang related felony. That is not how we understand the law. The statute defines a person who commits the section 12025, subdivision (b)(3) crime as any 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 . . . ." No personal felony is required.
Appellant also argues the evidence was insufficient to support the third element of section 186.22, subdivision (a) because "an individual acting by himself cannot be acting for the benefit of a gang."
This argument has been rejected by the courts of this state repeatedly (see People v. Ngoun (2001) 88 Cal.App.4th 432, 434 (Ngoun), People v. Salcido (2007) 149 Cal.App.4th 356, 363-368, and People v. Sanchez (2009) 179 Cal.App.4th 1297, 1307- 1308; People v. Gonzales (2011) 199 Cal.App.4th 219, 230-231), but we concede the issue is in doubt. Our Supreme Court currently is considering the validity of this argument in People v. Rodriguez (2010) 188 Cal.App.4th 722, review granted January 12, 2011, S187680. Until our Supreme Court rules differently, we will continue to follow the lead of the Ngoun court that rejected the argument as follows: "Given the objective and intent of subdivision (a), we find good reasons not to construe section 186.22, subdivision (a), in the restricted manner advocated by appellant and instead to conclude that this subdivision applies to the perpetrator of felonious gang-related criminal conduct as well as to the aider and abettor. Courts should give statutory words their plain or literal meaning unless that meaning is inconsistent with the legislative intent apparent in the statute. [Citations.] Under the language of subdivision (a), liability attaches to a gang member who 'willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' (§ 186.22, subd. (a).) In common usage, 'promote' means to contribute to the progress or growth of; 'further' means to help the progress of; and 'assist' means to give aid or support. [Citation.] The literal meanings of these critical words squares with the expressed purposes of the lawmakers. An active gang member who directly perpetrates a gang-related offense 'contributes' to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct. Faced with the words the legislators chose, we cannot rationally ascribe to them the intention to deter criminal gang activity by the palpably irrational means of excluding the more culpable and including the less culpable participant in such activity." (Ngoun, supra, 88 Cal.App.4th at p. 436.)
Appellant argues that Ngoun and the cases that follow it are inconsistent with language in People v. Castenada (2000) 23 Cal.4th 743 (Castenada), where our Supreme Court stated: "[S]ection 186.22(a) limits liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gang's pattern of criminal gang activity. Thus, a person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members . . . ." (Castaneda, supra, at p. 749, italics added.) Focusing on the language we have italicized, appellant suggests that a violation of section 186.22, subdivision (a) can only occur when one promotes, furthers, or assists another gang member. Appellant reads this language out of context. The quote comes from a portion of the Castaneda decision where the court ruled that section 186.22, subdivision (a) does not punish mere association with a disfavored organization and therefore satisfies the due process requirement of personal guilt. (Castenada, supra, 23 Cal.4th at p. 749.) The court was not asked to decide and did not decide whether a defendant can be found guilty of violating section 186.22, subdivision (a) based on his own conduct. Language in an opinion is not authority for propositions that are not considered. (People v. Jennings (2010) 50 Cal.4th 616, 684.)
We conclude the evidence was sufficient.
B. Instructions
As is relevant here, the court instructed the jurors on the crime carrying a concealed weapon while a member of a criminal street gang with CALCRIM No. 2542 as follows:
"the People must prove that . . . [t]he defendant willfully assisted, furthered or promoted felonious criminal conduct by members of the gang by directly and actively committing a felony offense . . . .
"Felonious criminal conduct means committing the following crime: Illegal possession of a firearm pursuant to Penal Code Section 12021."
Appellant now challenges this aspect of CALCRIM No. 2542 arguing it "eliminates the need to show that in addition to committing the offense, the defendant actually benefitted the gang by committing that crime."
But as we have explained in the preceding section, the prosecution need not show that the crime the defendant committed benefitted his gang in order to secure a conviction under section 12025, subdivision (b)(3). We conclude the court did not instruct the jurors incorrectly.
C. Evidence
Several of the witnesses at trial testified about the Norteño gang and about appellant's status as a member and leader of that gang. Appellant objected to that testimony arguing it was based, at least in part, on statements that were not made in court and thus violated his Sixth Amendment right to confront the witnesses against him as described in Crawford v. Washington (2004) 541 U.S. 36. The court overruled the objections. Appellant now renews that argument on appeal.
As we recently explained at length, appellant's argument may well have merit. (People v. Hill (2011) 191 Cal.App.4th 1104, 1127-1131.) But as we also explained, our Supreme Court has a different view on this issue. (Ibid. citing People v. Gardeley (1996) 14 Cal.4th 605, 612.) As appellant concedes, we are obligated to follow Gardeley. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
D. Sentencing
The jurors convicted appellant in count 1 of being a felon in possession of a firearm (§ 12021, subd. (a)), in count 2 of carrying a concealed weapon while an active member of a criminal street gang (§ 12025, subd. (b)(3)), and in count 3 of being a felon in possession of ammunition. (§ 12316, subd. (b)(1).)
In a subsequent court trial, the court found true allegations that appellant had one prior strike within the meaning of the three strikes law (§ 1170.12, subd. (c)(1)), and that appellant had suffered a prior serious felony conviction. (§ 667, subd. (a).)
At sentencing, the court selected count 2 as the principal term and sentenced appellant to 16 months, doubled to 32 months pursuant to the strike finding, plus 5 years for the prior serious felony conviction, for a total of 7 years 8 months in prison.
The court then imposed identical sentences of 2 years 8 months on counts 1 and 3 and ordered those terms to be served concurrently to the term imposed on count 2.
Appellant argued and at oral argument the People conceded that the five-year- enhancement pursuant to section 667, subdivision (a) could only lawfully apply to count 2. We will order that the abstract of judgment be amended accordingly.
Appellant now contends the trial court violated section 654 when it ordered concurrent sentences on counts 1 and 3.
As is relevant here, section 654 states: "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."
While the People concede the error we accept the concession only in part.
Section 654 prohibits punishment for multiple offenses that arise from the same act or from a series of acts that constitute an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) Whether section 654 applies depends on the intent and objective of the actor (Neal v. State of California (1960) 55 Cal.2d 11, 19), and is a question of fact for the trier of fact. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) The trial court's ruling on that issue, express or implied, will be affirmed on appeal if it is supported by substantial evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
Here, section 654 plainly applies to counts 1 and 2. Appellant's conviction on count 1 for being a felon in possession of a firearm and his conviction on count 2 for carrying a concealed weapon while an active member of a criminal street gang both relied on the same act: the fact that appellant was carrying a weapon. When section 654 applies, the sentence for a crime covered by that section must be stayed not served concurrently. (People v. Guzman (1996) 45 Cal.App.4th 1023, 1028.)
But we reach a different conclusion about appellant's conviction on count 3 for being a felon in possession of ammunition. That count relies on a different act from that alleged in count 2. Whereas count 2 was based on the fact that appellant was carrying a weapon, count 3 was based on the fact that appellant was carrying ammunition. While it might have been possible for the trial court to consider those two acts as part of an indivisible course of conduct, it was not required to do so. Appellant kept his gun and his ammunition in separate places. Furthermore, a gun and ammunition do not necessarily serve the same purpose. A gun can be used for offensive or defensive purposes. Ammunition by contrast can be used to resupply a gun that has been exhausted or given to some other person who might need it. The trial court could reasonably conclude appellant's intent and objective when carrying the weapon was different from his intent and objective when carrying the ammunition. The court's implied ruling on that issue is supported by substantial evidence and is binding on appeal. (People v. Nelson, supra, 211 Cal.App.3d at p. 638.)
The case cited by the People at oral argument, People v. Sok (2010) 181 Cal.App.4th 88, is not controlling here. Sok holds that section 654 applies when a defendant's convictions both are based on the fact that he was carrying a loaded firearm. (Id. at p. 100.) That is not the case here. While appellant had a loaded firearm, he also had ammunition in his pocket. Sok is distinguishable. (See also People v. Lopez (2004) 119 Cal.App.4th 132, 138.)
III. DISPOSITION
The trial court is ordered to prepare and to forward to the Department of Corrections and Rehabilitation an amended abstract of judgment showing the sentence imposed on count 1 is stayed. In addition, the abstract should indicate the five-year- enhancement pursuant to section 667, subdivision (a) is imposed in connection with count 2.
In all other respects, the judgment is affirmed.
Jones, P.J. We concur: Simons, J. Bruiniers, J.