Opinion
H036003
10-28-2011
THE PEOPLE, Plaintiff and Respondent, v. MANUEL MARTINEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS100605)
Following a court trial, the trial court convicted defendant Manuel Martinez of carrying a loaded firearm in a public place (count 1), carrying a concealed firearm (count 2), and street terrorism (count 3). It also found true gang-enhancement allegations as to counts 1 and 2 for purposes of three-year-sentence enhancements. It sentenced defendant to five years in prison for count 1 consisting of the middle term of two years plus a three-year enhancement. And it imposed concurrent two-year terms for counts 2 and 3. It then suspended execution of the sentence and placed defendant on probation for three years. On appeal, defendant contends that (1) no substantial evidence supports the gang-enhancement finding, and (2) the concurrent sentences for counts 2 and 3 violate the proscription against multiple punishment (Pen. Code, § 654 [prohibiting multiple punishments for a single act or course of conduct]). The People concede that the concurrent sentence for count 2 is improper multiple punishment, and we agree that the concession is appropriate. We otherwise disagree with defendant. We therefore modify and affirm the judgment.
Further unspecified statutory references are to the Penal Code.
SCOPE OF REVIEW
"In considering a challenge to the sufficiency of the evidence to support an enhancement, [the reviewing court] review[s] 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.] [It] presume[s] 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.' " (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
BACKGROUND
While on evening patrol in a part of Salinas known as Sureno territory, Sergeant David Shaw and Officer Gabriel Gonzalez saw defendant and another man walking on a sidewalk. When they shined the patrol car's spotlight on the two, the men ran away in opposite directions. They followed defendant and caught up with him. Defendant stopped and obeyed the officers' command to take his hands out of his pockets. He then told Sergeant Shaw that he had a gun in his pocket. Sergeant Shaw then extracted an unregistered, loaded handgun from defendant's pocket. Defendant later admitted that he and his companion were Sureno gang members. He added that he had purchased the gun "just for the fun of it." He replied, "All of them," when the officers asked what he knew about the crimes that Sureno street gang members commit. He replied, "All of them," when Officer Gonzalez asked whether he was aware that Sureno gang members commit robberies, attempted homicides, homicides, drug sales, and auto theft. Police searched defendant's residence and found pictures depicting defendant with other Sureno gang members as well as other gang-related paraphernalia.
Officer Gonzalez testified as a gang expert. He related that the primary activities of the Sureno criminal street gang in Monterey County were auto thefts, robberies, attempted homicides, homicides, and concealed weapons possession--firearms in particular. He added that it was common for Sureno gang members to commit crimes with other Sureno gang members. He identified other Sureno gang members who had been arrested for carrying concealed weapons. He stated that gang members consider weapons as tools to, for example, intimidate witnesses. He added that gang members almost consider weapons as community property so as to, for example, share the weapon with another gang member to carry out criminal activity. He explained that carrying weapons also intimidates rival gang members and gives the possessor status within the gang. He concluded by opining that, since possessing a firearm is a crime for most gang members, gang members who carried firearms intended to use them to commit a crime or for protection against rival gang members. He responded to a hypothetical question posing facts resembling this case by opining that the hypothetical person carrying a concealed, loaded firearm was doing so for the benefit of or in association with the Sureno criminal street gang because he was doing so with another gang member. And he opined that the hypothetical person carrying a concealed, loaded firearm was doing so to promote, further, or assist criminal conduct by Sureno gang members because the firearm was available for any type of crime that the person and his companion might commit or for the protection of one another from a rival gang member.
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 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 (1996) 14 Cal.4th 605, 617, italics omitted.) Defendant does not challenge the evidence concerning these elements.
Defendant contends that no substantial evidence supports the second element. He reasons that "being accompanied by a fellow gang member does not show that [he] possessed the weapon with an intent to promote or assist the criminal activity of gang members." According to defendant, there must be evidence that a gang companion was charged with a crime, had assisted the defendant in committing a crime, or knew that the defendant was committing a crime. He summarizes that "[T]he accompaniment of other gang members is simply not enough to prove specific intent." We disagree with this analysis.
Albillar explained that there is no statutory requirement that the criminal conduct mentioned in section 186.22, subdivision (b)(1), be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing. (Albillar, supra, 51 Cal.4th at p. 66.) Instead, the court found that, similar to the statutory language in section 186.22, subdivision (a), "the scienter requirement in section 186.22 [subdivision] (b)(1)--i.e., 'the specific intent to promote, further, or assist in any criminal conduct by gang members'--is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be
'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Albillar, supra, at p. 66.)
Thus, the scienter requirement in this case can apply to defendant's possession of the firearm.
"As to the second prong of the enhancement, all that is required is a specific intent 'to promote, further, or assist in any criminal conduct by gang members.' [Citation.] Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime." (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Stated another way, "if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Albillar, supra, 51 Cal.4th at p. 68.)
Here, defendant committed his crime in gang territory with a known fellow gang member. His crime was carrying a tool of the gang trade used for crimes, intimidation, and protection. When confronted by the police, both gang members ran away. Though defendant's crime was not of the usual kind where two or more gang members simultaneously commit the same crime, the trial court could have nevertheless reasonably concluded that, in possessing the firearm, defendant specifically intended to promote, further, or assist criminal conduct by a gang member, namely himself, in association with a gang member.
We disagree with defendant that the enhancement in this context requires evidence that the known fellow gang member had jointly committed or abetted the offense committed by the defendant. (See, e.g., People v. Leon (2008) 161 Cal.App.4th 149, 163 [convictions of possessing a concealed firearm and carrying a loaded firearm--evidence of specific intent sufficient where the defendant "intended to commit the offenses in association with [a fellow gang member], and that he knew [that the fellow gang member] was a member of his gang"] (italics added); see In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [finding of carrying a concealed knife--evidence of specific intent insufficient without "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"].)
Defendant likens this case to In re Daniel C. (2011) 195 Cal.App.4th 1350, 1362, which upheld a challenge to the gang-enhancement specific-intent element as follows: "Unlike . . . Albillar, . . . in the present case there was no evidence in the record that Holmes, Pinochi, or Midgett committed or were charged with any crime in connection with appellant's theft of the liquor bottle from the supermarket. Thus, it cannot be inferred from the facts and circumstances of appellant's crime, standing alone, that his purpose in committing it was to promote, further, or assist criminal conduct by gang members." The court concluded: "As to the robbery with which appellant was charged, there is no evidence that he acted in concert with his companions. Appellant's companions left the store before he picked up the liquor bottle, and they did not assist him in assaulting Chamblee. Indeed, there is no evidence in the record that appellant's companions even saw what happened in the store after they left." (Id. at p. 1361.)
Daniel C., however, is distinguishable. Here, defendant committed his crime in association with a known fellow gang member. Though there is no evidence that defendant's companion knew that defendant was carrying a concealed firearm, the requisite specific intent does not logically rest upon the companion's knowledge. Rather, it depends on defendant's knowledge and can be inferred from nature of the offense itself given the expert testimony that gang members carry firearms to protect fellow gang members.
MULTIPLE PUNISHMENT
The trial court imposed concurrent sentences for counts 1, 2, and 3 because "it's essentially the same conduct that's the subject matter of all three."
The People correctly concede the merit of defendant's contention that his two-year concurrent sentence for carrying a concealed firearm (count 2) should have been stayed pursuant to section 654 because the trial court imposed a sentence for carrying a loaded firearm (count 1). (People v. Hurtado (1996) 47 Cal.App.4th 805, 816-817 [stay of one sentence when convictions are for carrying a loaded firearm and carrying a concealed firearm].)
Whether defendant was properly punished for both street terrorism (count 3) and the felonious conduct underlying that offense, i.e., carrying a loaded firearm (count 1), is the question presented by defendant's second contention. Defendant argues that the multiple punishment prohibition in section 654 mandates that his sentence for street terrorism be stayed. We disagree and uphold the trial court's decision to impose a concurrent sentence for that offense.
Section 654 provides, "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).) "Although section 654 speaks in terms of an 'act or omission,' it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time." (People v. Meeks (2004) 123 Cal.App.4th 695, 704.) " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (People v. Britt (2004) 32 Cal.4th 944, 951-952.)
The Supreme Court is currently considering how section 654 applies in the context of the crime of street terrorism. (See People v. Mesa (2010) 186 Cal.App.4th 773, review granted Oct. 27, 2010, S185688; People v. Duarte (2010) 190 Cal.App.4th 82, review granted Feb. 23, 2011, S189174.) Some courts have been loath to apply section 654 in this context, given that street terrorism requires the intent to participate in a gang, which is distinct from the intent to commit the underlying felony. (See, e.g., People v. Herrera (1999) 70 Cal.App.4th 1456, 1466-1468; People v. Ferraez (2003) 112 Cal.App.4th 925, 935; People v. Garcia (2007) 153 Cal.App.4th 1499, 1514.) However, because the crime of street terrorism is dependent on the commission of an underlying felony, other courts have applied section 654 to preclude separate punishment for both offenses. (See, e.g., People v. Vu (2006) 143 Cal.App.4th 1009; People v. Sanchez (2009) 179 Cal.App.4th 1297, 1315.)
We have previously agreed with the Herrera line of cases and adhere to that view: "The minor's intent and objective in [committing street terrorism] necessarily must have been participation in the gang itself. Evidence of that intent was abundant. . . . [¶] His intent and objective in committing the robbery was to take the property located in the home. Application of the enhancement does not alter the fact that he must also have had the intent to take the property. While he may have pursued the two objectives simultaneously, the objectives were nevertheless independent of each other. Therefore, section 654 does not bar punishment for both the gang crime and the robbery." (In re Jose P. (2003) 106 Cal.App.4th 458, 471.) Stated in the context of this case: "The evidence shows defendant knew he was in possession of a firearm in public, and intended to commit that crime to promote or assist the gang. While he might have pursued these objectives simultaneously, they were independent of each other. There is no violation of section 654." (People v. Garcia, supra, 153 Cal.App.4th at p. 1514, fn. omitted.)
DISPOSITION
The judgment is modified to impose a stayed sentence for count 2. As so modified, the judgment is affirmed.
Premo, J. WE CONCUR:
Rushing, P.J.
Elia, J.