Opinion
C087088
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO NEGRETE ROCHA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CC034939)
In August 2016, prison officials recovered 13 bindles of heroin and numerous "kites," or handwritten inmate notes, excreted by defendant Francisco Negrete Rocha. Defendant, who had tattoos associated with the Norteño gang, was identified in a roster of Norteño inmates contained in one of the kites. At trial, the prosecution's gang expert opined that such an inmate would benefit the gang by possessing drugs and inmate notes.
In April 2018, a jury found defendant guilty of possession of a controlled substance in prison (Pen. Code, § 4573.6) with a gang enhancement (§ 186.22, subd. (b)(1)(A)), and a substantive gang offense (§ 186.22, subd. (a)); in bifurcated proceedings the trial court found true that defendant had a prior strike (§ 667, subds. (b)-(i)). In May 2018, the trial court sentenced defendant to state prison for an aggregate term of nine years, including three years for the gang enhancement.
Undesignated statutory references are to the Penal Code. --------
On appeal, defendant contends there was insufficient evidence to support the gang enhancement and substantive gang offense. The People concede the evidence failed to establish the two required predicate offenses, and we agree. We will reverse the gang enhancement and the substantive gang offense and remand for resentencing. Given our findings, we need not reach defendant's additional arguments that the trial court erred in admitting expert testimony of a gang investigator and evidence regarding the kites, and in denying his trial counsel's motion for judgment of acquittal under section 1118.1.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution's Norteño prison gang expert, Institutional Gang Investigator Supervisor Casey Walsh, testified about three predicate crimes committed by Norteño gang members.
Walsh testified that he had investigated a case in which a defendant was convicted in May 2017 of homicide and a gang enhancement in Contra Costa County. The homicide occurred in August 2012. Walsh had testified in that case regarding his investigation and gang validation; according to Walsh, the case "involved the Norteño gang." The prosecution failed to introduce an abstract of judgment or provide additional evidence regarding the conviction, including the identity of the defendant or the details of the offense.
Walsh also testified that he investigated a narcotics possession case against an inmate named "Noriega." Noriega was convicted in May 2017 of unauthorized possession of a controlled substance in prison (§ 4573.6) and a gang enhancement. The trial court took judicial notice of the case. At the close of the prosecution's case-in-chief, defendant moved for judgment of acquittal under section 1118.1, arguing the Noriega conviction did not qualify as a predicate offense for purposes of the gang allegations because section 4573.6 was not an enumerated offense under section 186.22, subdivision (e). The court held the Noriega conviction did not qualify as a predicate offense and allowed the prosecution to reopen its case-in-chief and introduce evidence regarding an assault conviction.
Walsh testified that Johnny Ray Cabrera was convicted in January 2013 of assault with a deadly weapon by an inmate. (§ 4501.) Walsh investigated all the inmates involved in the case, including the victim, and concluded they were all members of the Norteño gang. Walsh had also reviewed a "transcript regarding [the] case" and the abstract of judgment.
DISCUSSION
When considering whether there is sufficient evidence to support a criminal conviction, "we review the entire record in the light most favorable to the judgment 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." [Citation.]' [Citations.] 'We draw all reasonable inferences in support of the judgment. [Citation.]' [Citations.] Reversal is not warranted unless it appears ' "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." [Citation.]' " (People v. Duran (2002) 97 Cal.App.4th 1448, 1456-1457 (Duran).) The same standard of review applies to the evidence supporting an enhancement. (People v. Wilson (2008) 44 Cal.4th 758, 806.)
Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. Similarly, a person violates section 186.22, subdivision (a) when he 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.
A group is only a "criminal street gang" if the People prove the following: "(1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity." (Duran, supra, 97 Cal.App.4th at p. 1457; see also § 186.22, subd. (f).)
A " 'pattern of criminal gang activity' " means "gang members' individual or collective 'commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more' enumerated 'predicate offenses' during a statutorily defined time period." (Duran, supra, 97 Cal.App.4th at p. 1457; see also § 186.22, subd. (e).) The offenses must have been committed on separate occasions, or by two or more persons. (§ 186.22, subd. (e).)
The evidence regarding the 2012 homicide conviction was insufficient to support a predicate offense committed by a member of the Norteño gang. Although Walsh testified the homicide "involved the Norteño gang," he never specified how the gang was involved, or whether the defendant in the case was a Norteño gang member. In addition, the prosecution failed to introduce an abstract of judgment or provide additional evidence regarding the conviction, such as the identity of the defendant or the details of the offense. Under the circumstances, we must reverse defendant's gang enhancement and substantive gang offense.
DISPOSITION
The gang enhancement (§ 186.22, subd. (b)(1)(A)) and substantive gang offense (§ 186.22, subd. (a)) are reversed. The matter is remanded for resentencing. The trial court is directed to prepare a revised abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
HULL, J. /s/_________
MAURO, J.