Opinion
E072056
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. ROMAN TERENCE PONCE, Defendant and Appellant.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and A. Natasha Cortina, Christine Levingston Bergman, and Kelley A. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI18000002) OPINION APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed in part, reversed in part, and remanded with directions. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and A. Natasha Cortina, Christine Levingston Bergman, and Kelley A. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
Police who entered the apartment of defendant Roman Terence Ponce, Sr. found (1) 21.5 grams of methamphetamine, under his mattress, and (2) two of defendant's fellow gang members, high on methamphetamine, in a spare room.
In a jury trial, defendant was found guilty on three counts:
1. Simple possession of methamphetamine, a misdemeanor (Health & Saf. Code, § 11377, subd. (a)), as a lesser included offense of possession of methamphetamine with the intent to sell, a felony (Health & Saf. Code, § 11378).
2. Selling or furnishing methamphetamine (Health & Saf. Code, § 11379, subd. (a)), with a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(A)).
3. Active gang participation. (Pen. Code, § 186.22, subd. (a).)
In a bifurcated proceeding, after defendant waived a jury, one strike prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and six prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) were found true. Defendant was sentenced to a total of 15 years in prison.
Defendant now contends that:
1. There was insufficient evidence to support the conviction on count 2 for selling or furnishing methamphetamine.
2. There was insufficient evidence to support the conviction on count 3 of active gang participation.
3. There was insufficient evidence to support the gang enhancement to count 2.
4. Defendant is entitled to a remand so the trial court can consider exercising its discretion, under newly enacted legislation, to strike his prior prison term enhancements.
We agree with the first two contentions. Accordingly, we will reverse the convictions on count 2 and count 3. The last two contentions are moot, because defendant will no longer stand convicted of any felony. We will therefore strike the strike prior and the prior prison term enhancements, and remand for resentencing.
I
STATEMENT OF FACTS
A. Evidence of the Charged Drug Offenses.
On October 10, 2017, in the afternoon, Deputy Shawn Thurman and Detective Joseph Necochea contacted defendant outside his apartment building in Hesperia.
Defendant admitted being a member of a gang called East Side Victoria (ESV) since 1988. However, he said it had been "months" since he had been back in the gang's territory.
The officers went into defendant's apartment. They noticed a closed door. They asked defendant if anyone else was in the apartment; he did not answer. They opened the door and found two men — Andrew Camarena and Joseph Pineda — sitting in two chairs. They appeared to be hiding. The room was unused; it may have been a spare bedroom. The blinds were down and the lights were off.
Camarena and Pineda appeared to be under the influence of methamphetamine. They said they had used methamphetamine before coming to defendant's apartment. Pineda said he had been there for about 20 minutes. Camarena did not arrive at the same time as Pineda. The officers searched them, as well as the room, but found no contraband and no "wads of cash."
Blood tests of both Camarena and Pineda were positive for methamphetamine.
The officers searched defendant's bedroom. They found mail that was addressed to him at the apartment. In a dresser, there were two or three empty baggies. These were sandwich-sized and fold-over, not ziplock. There were three cell phones on the bed. Defendant, Camarena, and Pineda each claimed one of the phones.
The officers looked under defendant's mattress and found a baggie containing what turned out to be methamphetamine. The methamphetamine was the size of a tennis ball; it weighed 21.5 grams (three-quarters of an ounce).
In the pocket of a jacket in the closet of defendant's room, the officers found a methamphetamine pipe. They also found a digital scale that had what appeared to be methamphetamine on it. Defendant had $117 in his pocket, even though he was not employed.
Defendant's apartment was equipped with a video surveillance system that showed the street outside.
When questioned, defendant indicated that the methamphetamine belonged to him and was for his own personal use. He said he had smoked a quarter of a gram the night before. He expected the rest to last him a week to two weeks. However, this would be true only if he smoked two or three grams a day. He denied giving any of the methamphetamine to anyone.
B. Gang Evidence.
Deputy Necochea testified as the prosecution's gang expert. He identified ESV as a gang that had members throughout the High Desert. As of October 2017, ESV had approximately 164 known members and associates.
In Deputy Necochea's opinion, at the time of the offenses, defendant was an active member of ESV. His moniker was "Solo."
Camarena was also an active member of ESV. His moniker was "Playboy." Pineda was either a member or an associate of ESV.
ESV has common signs and symbols, including "ESV," "Victoria," and "V." ESV members wear the Oakland Raiders' colors, which are silver and black, and the Los Angeles Dodgers' colors, which are blue and white.
ESV's primary activities included shootings, robberies, burglaries, and drug sales. The following predicate offenses were shown:
1. Jeffrey Flores, a member of ESV, had pleaded guilty to possession of a controlled substance for sale, committed in 2016.
2. Steven Lopez, a member of ESV, had pleaded guilty to felony vandalism, committed in 2016.
3. George "Rascal" DeGraw, a member of ESV, had pleaded guilty to conspiracy to sell a controlled substance and conspiracy to commit burglary, committed in 2008.
4. Camarena had pleaded guilty to conspiracy to sell a controlled substance, committed in 2008.
5. Defendant had been convicted of robbery, committed in 2003.
6. Defendant had pleaded guilty to unlawful possession of a firearm, committed in 2003.
7. Defendant had pleaded guilty to unlawful possession of a firearm, committed in 1995.
It was also shown that Jason Olvera, a member of ESV, had pleaded guilty to active gang participation, committed in 2014. However, active gang participation is not a predicate offense. (Pen. Code, § 186.22, subd. (e).)
Deputy Necochea opined, in hypothetical form, that the charged drug crimes benefited ESV. He explained: "When an active gang member sells illegal substances . . ., they keep a percentage for themselves and give a percentage back to the gang, which then eventually is a trickle up the gang to a member of the Mexican Mafia . . . ."
Based on the same hypothetical, Deputy Necochea also opined that the crimes were committed in association with ESV, "based on two members of the same gang associating with another known gang member, and selling the methamphetamine."
Finally, based on the same hypothetical, Deputy Necochea opined that the drug crimes were committed with the specific intent to promote, further or assist in criminal conduct by other gang members, again because some of the money would go to the gang.
II
THE SUFFICIENCY OF THE EVIDENCE OF
SELLING OR FURNISHING METHAMPHETAMINE
Defendant contends that there is insufficient evidence to support his conviction on count 2 for selling or furnishing methamphetamine.
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review 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.] We determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] In so doing, a reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."' [Citation.]" (People v. Beck and Cruz (2019) 8 Cal.5th 548, 626, italics added.)
"We must emphasize that it is not our function to substitute our judgment for that of the jury or to reweigh the evidence." (People v. Mendoza (2016) 62 Cal.4th 856, 883.) "'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.]" (People v. Rivera (2019) 7 Cal.5th 306, 331.)
However, "mere speculation cannot support a conviction. [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 35.) "'[A] reasonable inference . . . "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence." [Citation.]' [Citations.]" (People v. Davis (2013) 57 Cal.4th 353, 360.) "[A] properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt . . . . [W]hen such a conviction occurs in a state trial, it cannot constitutionally stand." (Jackson v. Virginia (1979) 443 U.S. 307, 317-318.)
The relevant evidence boils down to this: (1) Camarena and Pineda were high on methamphetamine, (2) defendant had methamphetamine in his apartment, and (3) Camarena and Pineda were in defendant's apartment. This is insufficient to show that defendant actually furnished the methamphetamine that Camarena and Pineda used.
The People rely on the evidence that defendant possessed the methamphetamine with the intent to sell. With respect to count 1, the jury rejected this theory; it found defendant not guilty of the charged offense of possession with the intent to sell, and guilty only of the lesser included offense of simple possession. This was most likely because defense counsel did an outstanding job of showing that various indicia of intent to sell, such as firearms, safes, cutting tools, diluting powders, or "pay-owe sheets," were absent. Nevertheless, as Deputy Thurman testified, the amount of the methamphetamine, the presence of a digital scale, baggies, and a video surveillance system, and the amount of cash on defendant all were sufficient to prove intent to sell.
However, there was still insufficient evidence that defendant furnished (much less sold) methamphetamine specifically to Camarena or Pineda. Defendant denied doing so. They both said they used methamphetamine before coming to defendant's house. Of course, the jury did not have to believe them. But the point is that there was no evidence contradicting them. For example, there was no expert testimony that the amount of methamphetamine in their blood indicated recent use. And there was no evidence that defendant was high, which arguably might tend to show that they were all using together. When the police first contacted defendant, he was not even in the apartment.
There was certainly no evidence that Camarena and Pineda paid defendant for methamphetamine. Officer Thurman testified that, because they were all members of the same gang, Camarena and Pineda "likely" did not have to pay.
The People cite the fact that cell phones belonging to Camarena and Pineda were found on defendant's bed. Even assuming they were in the bedroom at some point, however, it would be speculative to conclude that they were aware of the methamphetamine under the mattress — much less that defendant gave them some.
Next, the People cite the evidence that the methamphetamine was approximately one ounce, minus two "eight-balls." An eight-ball is one-eighth of an ounce, or about 3.5 grams. They conclude that this showed that defendant had furnished some of the methamphetamine to two people.
The problem with this is that Deputy Thurman testified: "[A] user or consumer would use approximately 0.25 grams per usage, depending on their tolerance. Typically, I don't see anyone doing more than that, a gram to possibly two grams at most per day. If they do use more than 1 to 2 grams, they're going to kill themselves . . . ." Defendant claimed that he was going to use all the methamphetamine himself, and it would last a week or two. The prosecution showed that this would require him to smoke two to three grams a day; its point was that this was impossible, and therefore defendant was lying.
So if defendant did give Camarena and Pineda an eight-ball each, and if they each used 0.25 or even 2 grams of it, where was the rest of it? This evidence actually tends to show that defendant did not furnish the methamphetamine that they used.
And how did Camarena and Pineda ingest the methamphetamine? The only paraphernalia found, a glass methamphetamine pipe, was not in the spare room with Camarena and Pineda; it was in defendant's bedroom, in defendant's closet, in a pocket of defendant's jacket. When asked if it was hot or warm, Officer Thurman did not recall; he said that either he did not touch it, or it was not.
Detective Necochea, who actually found the pipe, was not asked this question. --------
Evidence (much of it arguably irrelevant) was introduced regarding two wiretap investigations of ESV, conducted in 2008 and 2016, respectively, which resulted in indictments. This evidence showed that the "primary drug" that ESV sold was methamphetamine. For the present purpose, however, this is also some evidence that other ESV members have access to methamphetamine, and would not need to get it from defendant.
We conclude that the conviction on count 2 must be reversed and that this charge cannot be retried. (Burks v. United States (1978) 437 U.S. 1, 11.)
III
THE SUFFICIENCY OF THE EVIDENCE OF
ACTIVE GANG PARTICIPATION
Defendant contends that there was insufficient evidence to support his conviction on count 3 of active gang participation.
The elements of this offense are: "'(1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang.' [Citation.]" (People v. Valenzuela (2019) 7 Cal.5th 415, 422.)
Defendant argues that the third element is lacking — that there was insufficient evidence that he assisted in any felonious conduct by other gang members. As he notes, there was evidence that Camarena and Pineda committed the crimes of possession of methamphetamine (Health & Saf. Code, § 11377) and being under the influence of methamphetamine (Health & Saf. Code, § 11550), but these are both misdemeanors.
The People do not claim there was any evidence that Camarena and Pineda perpetrated any felony. They argue, however, that they aided and abetted defendant's commission of the felony of selling or furnishing methamphetamine. As we held in part II, ante, however, there was insufficient evidence that defendant did sell or furnish methamphetamine.
It could be argued that they aided and abetted defendant's commission of the felony of possession of methamphetamine for sale. Although the jury acquitted him of this charge, that is irrelevant to a substantial evidence inquiry. "A jury in a criminal case may return inconsistent verdicts. [Citations.]" (People v. Williams (2001) 25 Cal.4th 441, 449.) "'"[R]eview of the sufficiency of the evidence . . . should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt. [Citations.] This review should be independent of the jury's determination that evidence on another count was insufficient . . . ."' [Citation.]" (People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 13.)
As we also held in part II, ante, there was sufficient evidence that defendant committed possession of methamphetamine with the intent to sell. But even assuming Camarena and Pineda aided and abetted this crime, that would not supply the missing element of active gang participation. An aider and abettor necessarily "promot[es], further[s], or assist[s]" the felonious conduct of a perpetrator. (In re Alberto R. (1991) 235 Cal.App.3d 1309, 1322.) But the converse is not true. "The proper inquiry . . . is whether a defendant aided and abetted gang members in the commission of felonious conduct, not vice versa. [Citation.]" (People v. Johnson (2014) 229 Cal.App.4th 910, 922-923.)
Moreover, there is no evidence that Camarena and Pineda did aid and abet this crime. "'"[A]n aider and abettor is a person who, 'acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.'"' [Citation.]" (People v. Penunuri (2018) 5 Cal.5th 126, 146.) There was no evidence that Camarena and Pineda even knew the methamphetamine was there. A fortiori, there was no evidence that they did anything to assist defendant in possessing the methamphetamine for sale.
The People point to the evidence that one of ESV's primary activities was the sale of methamphetamine and that gang members gain respect by committing crimes. However, it would be unreasonable to infer that all gang members are always aware of all the crimes being committed by their fellow gang members. And this still fails to show that Camarena and Pineda did anything to assist defendant's possession.
We therefore conclude that defendant's conviction on count 3 cannot stand. This count, too, cannot be retried.
IV
DISPOSITION
The conviction on count 1 is affirmed. The convictions on counts 2 and 3 are reversed; these counts may not be retried. The matter is remanded for resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.