Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA057729, James R. Dabney, Judge.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jason C. Tran and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Raul Daniel Sanchez (defendant) of possession for sale of a controlled substance (cocaine) (Health & Saf. Code, § 11351) (count 1), possession for sale of a controlled substance (methamphetamine) (Health & Saf. Code, § 11378) (count 2), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (count 3), and possession of a controlled substance (cocaine and/or methamphetamine) with a firearm (Health & Saf. Code, § 11370.1, subd. (a)) (count 4). The jury found true allegations that each of defendant’s offenses was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(A)), and that, at the time of the commission of defendant’s offenses, he was released from custody on bail or his own recognizance (§ 12022.1). In a bifurcated proceeding, the trial court found that defendant had suffered eight prior felony convictions within the meaning of the Three Strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court sentenced defendant to 39 years to life in state prison. The trial court sentenced defendant as a third strike defendant on count 1. With respect to counts 2, 3, and 4, the trial court struck all but one of defendant’s prior convictions and sentenced defendant as a second strike defendant. As to all counts, the trial court imposed sentence on the gang and out on bail enhancements as discussed below.
All further statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that there is insufficient evidence to support the jury’s true findings on the gang enhancement allegations; the trial court erred in imposing the out on bail sentence enhancement as to counts 2, 3, and 4; the trial court erred in doubling the sentence for the gang enhancement finding as to counts 2, 3, and 4; and the trial court erred in imposing sentence for the gang enhancement in connection with defendant’s life term on count 1 rather than imposing a parole eligibility term. Respondent properly concedes that the trial court erred in imposing the out on bail sentence enhancement as to counts 2, 3, and 4, and in doubling the sentence for the gang enhancement findings as to counts 2, 3, and 4. The abstract of judgment is ordered amended with respect to sentencing as set forth below. Otherwise, the judgment is affirmed.
BACKGROUND
On September 8, 2005, Los Angeles Police Department Officer Vince and his partner Detective Hanabusu established an observation post directed at the front of an upstairs apartment at 536 Sunset Avenue in Venice. Officers Vince and Detective Hanabusu were assisting other officers who were going to serve a search warrant for narcotics. About 2:00 p.m., while watching the front of the apartment, Officer Vince saw a man go to the apartment’s front door and engage in what appeared to be a hand-to-hand narcotics transaction with a man inside the apartment. Officer Vince communicated that “information” to the officers who were to search the apartment.
About 2:40 p.m., Officer Bambrick knocked loudly on the apartment’s door and yelled, “Los Angeles Police Department. We have a search warrant. Open the door.” Officer Stalnecker heard someone running inside the apartment. The officers believed that narcotics evidence was going to be destroyed and forced entry into the apartment. As the officers were forcing entry, Officer Stalnecker saw defendant run across the apartment and into the kitchen area. Defendant was carrying a black object in his right hand. Once inside the apartment, Officer Stalnecker went to the kitchen area where he saw defendant leaning out of the back window with his right arm extended. Defendant came back inside and was taken into custody.
As the officers entered the apartment, the toilet was running and there were empty plastic bags in the toilet. According to Officer Stalnecker, drug dealers commonly flush narcotics down the toilet when officers conduct a narcotics investigation.
Officer Stalnecker asked other officers to check in back of the apartment because defendant had thrown something out of the back window. Detective Olivier checked the rear of the location for a black bag. Detective Olivier recovered a black bag and two little white plastic baggies that contained a white substance that resembled cocaine from the roof next door at 540 Sunset Avenue. Inside the black bag were five clear plastic baggies that contained white substances that resembled cocaine and methamphetamine.
Officer Stalnecker informed defendant that they had a search warrant for narcotics and firearms. Defendant told Officer Stalnecker that he had a gun in the dresser in his bedroom. Officer Stalnecker recovered a loaded gun from a drawer in the dresser next to the bed. From the same drawer, Officer Stalnecker recovered a wallet with defendant’s identification inside. On top of the dresser, Officer Stalnecker found a small, electronic scale that had a white residue that resembled cocaine on it. In one of the dresser’s drawers, Officer Stalnecker found ammunition of various calibers. Officer Stalnecker also recovered a knife and two cell phones from the bedroom.
On the floor of the entrance to defendant’s bedroom, Officer Stalnecker found a syringe. There was a spoon next to the syringe. The bedroom’s closet had access to the roof. Officer Stalnecker found surveillance cameras on the roof. Wires connected the cameras to a computer in the bedroom.
Los Angeles Police Department Criminalist Thomas tested the white substances Detective Olivier recovered. She determined that the substances totaled 145.05 grams of cocaine and 5.95 grams of methamphetamine. Because of the quantities of cocaine and methamphetamine, Detective Olivier opined that the drugs were possessed for the purpose of sales. A “user” would not possess such large quantities for personal use. Officer Stalnecker also opined that the drugs were possessed for the purpose of sales. Officer Stalnecker based his opinion on the quantities involved; defendant’s unemployment; and the presence at the location of surveillance equipment, the firearm and ammunition, the empty bags in the running toilet, and a scale.
In the prosecution’s case, evidence concerning defendant’s arrest for driving on a suspended license on November 22, 2003, was admitted for the sole purposes of proving intent or knowledge as elements of the current offenses. That evidence showed that in connection with defendant’s arrest, defendant was searched and found to be in possession of four or five baggies of methamphetamine. Defendant’s vehicle was searched and officers found a loaded 9-millimeter semiautomatic pistol, a hypodermic needle and a small amount of black tar heroin, a digital scale, additional bags of methamphetamine, two bags of powder cocaine, and approximately 120 empty small Ziplock baggies. Officers found a “pay and owe sheet” that drug dealers use to keep track of sales in defendant’s wallet. In Officer Reppucci’s opinion, defendant possessed the narcotics for the purpose of sales. The docket sheet for defendant’s November 22, 2003, arrest reflected that defendant was out of custody on $65,000 bail at the time of his September 8, 2005, arrest.
DISCUSSION
I. Sufficient Evidence Supports The Criminal Street Gang Sentence
Enhancement
Defendant contends that insufficient evidence supports the criminal street gang sentence enhancement because the evidence does not show that he “possessed the contraband for the benefit of or in association with the Venice 13 gang, and... that he harbored the specific intent to promote, further, or assist criminal conduct by gang members.” We disagree.
A. Standard of Review
“‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “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.”’ ([People v.] Rowland [(1992)] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].)” (People v. Young (2005) 34 Cal.4th 1149, 1175.)
B. Factual Background
Los Angeles Police Department Officer Dalzell testified as the prosecution’s gang expert. Officer Dalzell was assigned to the Pacific Division gang unit during the time of defendant’s alleged offenses in this case and was assigned primarily to the Venice 13 gang. According to Officer Dalzell, the main territory of the Venice 13 gang is the Oakwood area of Venice. The 500 block of Sunset Avenue is in Venice 13 gang territory. The Venice 13 gang marks its territory with graffiti such as “Venice,” “Venice Sur,” “Venice 13,” and “Venice X3.” The Venice 13 gang’s primary color is blue. Los Angeles Police Department Officer Rodriguez testified that when defendant was booked into jail in this case, he was wearing a blue T-shirt, blue shorts, and blue sandals. Defendant has “V13,” a tattoo common to Venice 13 gang members, tattooed on his right forearm.
According to Officer Dalzell, the Venice 13 gang’s primary activity is “pretty much selling drugs,” the proceeds of which sales it uses to finance the purchase of additional drugs and weapons that its members use to “commit shootings or murders.” Officer Dalzell testified that the Venice 13 gang controls all drug sales within its territory. A person cannot sell drugs in Venice 13 gang territory unless the person is a member of the Venice 13 gang or has the gang’s permission. Persons who sell drugs in Venice 13 gang territory must pay a portion of the proceeds from their drug sales to the gang as “taxes.” These taxes benefit the gang because the gang uses some portion of the taxes to help other gang members such as by providing bail when gang members are arrested. The Venice 13 gang also uses tax proceeds “to buy themselves stuff or to help themselves out.” If the Venice 13 gang knows that a person is selling drugs in Venice 13 gang territory without permission or without paying taxes, that person will be assaulted, robbed, or possibly killed.
Officer Dalzell testified that a gang member who sells drugs on behalf of a gang would possess a gun to protect himself from rival gang members who might try to steal the gang member’s money or drugs. The gang member also could use the gun to shoot rival gang members or other enemies outside of the gang’s territory.
According to Officer Dalzell, a person who leaves a gang severs all ties with gang members and moves out of the area. It would be “highly unlikely” that a gang would allow a person who is no longer a member of the gang to walk around wearing gang tattoos or gang colors or to represent himself as a member of the gang.
Officer Dalzell opined that defendant was a member of the Venice 13 gang based on, among other things, defendant’s tattoos, his prior admission to officers that he is a member of the gang, and his continuing residence in Venice 13 gang territory. Officer Dalzell further opined that defendant was selling drugs on behalf of and in furtherance of the Venice 13 gang because if a person sold drugs in that neighborhood, he had to pay taxes to the gang or have the gang’s permission to sell the drugs; “at the very least he’d have to be giving taxes back to the gang.” Evidence that a person is unemployed yet possesses a large amount of narcotics, is wearing all blue, and has a Venice 13 gang tattoo on his arm suggests that the person is selling drugs for the benefit of the gang. That defendant was able to make bail in the amount of $65,000 in connection with his 2003 arrest is consistent with Officer Dalzell’s opinion that defendant was selling drugs in connection with the Venice 13 gang.
In his defense, defendant called former Los Angeles Police Officer Strong as a gang expert. Strong testified that most gang members “gravitate away” from gang activity when they reach age 19 or 20 and develop other interests. According to Strong, former gang members typically do not move from their former gang territories because their families live there. The majority of former gang members do not have their gang tattoos removed because tattoo removal is painful and expensive. According to Strong, most gang members who sell drugs do so for personal gain and do not share the proceeds with the gang.
Maria Llamas, defendant’s wife, testified that she and defendant lived with their children in an apartment at 536 or 538 Sunset Avenue in Venice because defendant’s mother lived on the same block and would watch their children when Llamas worked. Llamas worked as a Department of Motor Vehicles supervisor for seven automobile dealerships and supported the family with her monthly income of about $5,000. According to Llamas, defendant was a drug user and not a gang member. Llamas’s and defendant’s families pitched in to pay 10 percent or $6,500 of defendant’s $65,000 bail in his prior case. Llamas was paying for defendant’s private attorney in this case with the income from her job.
C. Application of Relevant Legal Principles
In order for the gang enhancement under section 186.22 to apply, there must be sufficient evidence to show that the felony was “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) “It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.]” (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) Such expert testimony may include “‘whether and how a crime was committed to benefit or promote a gang....’” (Id. at p. 1197.)
The evidence adduced at trial was sufficient to demonstrate that defendant possessed the cocaine, methamphetamine, and a firearm for the benefit of or in association with the Venice 13 gang with the specific intent to promote, further or assist in criminal conduct by Venice 13 gang members. The evidence showed that defendant was a member of the Venice 13 gang at the time of his offenses in this case. When defendant was booked into jail in this case, he was dressed in all blue, the primary color of the Venice 13 gang. Defendant has a Venice 13 gang tattoo on his right forearm. At the time of his offenses in this case, defendant was living in Venice 13 gang territory. Defendant previously admitted his membership in the Venice 13 gang.
The evidence showed that the Venice 13 gang’s primary activity was selling drugs. The proceeds of such sales benefitted the Venice 13 gang because they allowed the gang to purchase other drugs and weapons. The Venice 13 gang controls all drug sales within its territory, and the gang does not permit persons to sell drugs in its territory without paying “taxes” or without permission. Possession of a firearm assists a gang member in selling drugs. Defendant possessed for sale a large amount of narcotics in Venice 13 gang territory. Gangs use some portion of taxes from drug sales to provide bail when gang members are arrested. Defendant had been able to make bail in the amount $65,000 in connection with his 2003 arrest. Officer Dalzell opined that defendant was selling drugs on behalf of and in furtherance of the Venice 13 gang. Such evidence is sufficient to support the jury’s gang enhancement findings under section 186.22, subdivision (b)(1)(A).
II. The Trial Court Erred In Imposing The Out On Bail Sentence Enhancement As To Counts 2, 3, and 4
Defendant contends that the trial court erred in imposing the out on bail sentence enhancement under section 12022.1 as to counts 2, 3, and 4 because such a sentence enhancement may be imposed only once in arriving at an aggregate sentence. Respondent properly concedes the issue.
Section 12022.1, subdivision (b) provides, “Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court.” Section 12022.1 sentence enhancements relate to the nature of the offender and not to the nature of the offense and, thus, may be imposed only once in arriving at an aggregate sentence. (People v. Tassell (1984) 36 Cal.3d 77, 90; People v. Augborne (2002) 104 Cal.App.4th 362, 376-378.)
The trial court imposed a sentence enhancement under section 12022.1 as to all four counts. The trial court erred in imposing the sentence enhancement as to counts 2, 3, and 4. (People v. Tassell, supra, 36 Cal.3d at p. 90; People v. Augborne, supra, 104 Cal.App.4th at pp. 376-378.) Accordingly, the section 12022.1 sentence enhancements as to counts 2, 3, and 4 are ordered stricken from the abstract of judgment.
III. The Trial Court Erred In Doubling The Sentence For The Gang Enhancement As To Counts 2, 3, And 4
Defendant contends that the trial court erred in doubling the sentence for the gang enhancement under section 186.22, subdivision (b)(1)(A) as to counts 2, 3, and 4. Respondent properly concedes the issue.
“In sentencing a defendant who has one prior strike, the court may not double any enhancements it imposes. [Citations.]” (People v. Hardy (1999) 73 Cal.App.4th 1429, 1433.) Here, the trial court struck all but one of defendant’s prior convictions as to counts 2, 3, and 4. In sentencing defendant on the gang enhancement under section 186.22, subdivision (b)(1)(A) as to counts 2, 3, and 4, the trial court imposed a sentence of one third of the three-year middle term as to each count which it then doubled to two years. Instead, the trial court should have imposed one year terms (one third of the middle term of three years) as to counts 2, 3, and 4. The abstract of judgment is ordered amended to reflect such terms.
IV. The Trial Court Properly Sentenced Defendant To A Consecutive Two-Year Term On the Gang Enhancement Under Section 186.22, Subdivision (b)(1)(A)
Defendant contends that the trial court erred in imposing a consecutive two-year term under section 186.22, subdivision (b)(1)(A) on the 25-years-to-life term for his possession for sale of a controlled substance (cocaine) (Health & Saf. Code, § 11351) conviction rather ordering that he serve 15 years before he is eligible for parole under
subdivision (b)(5) of section 186.22. The trial court properly imposed the two-year sentence enhancement.
Subdivision (b) of section 186.22 provides, in pertinent part:
“(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows:
“(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court’s discretion.
“¶... ¶”
“(5) Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.”
Defendant contends that subdivision (b)(1)(A) of section 186.22 does not apply because subdivision (b)(5) applies. Defendant reasons that because his sentence for possession of a controlled substance received a term of 25 years to life under the Three Strikes law, the trial court should have sentenced him under subdivision (b)(5) and imposed a 15-year minimum parole eligibility period rather than sentencing him under subdivision (b)(1)(A) and imposing the consecutive two-year period. Respondent contends that subdivision (b)(5) of section 186.22 applies only to felonies that are, by themselves, “punishable by imprisonment in the state prison for life.” Respondent is correct.
In People v. Montes (2003) 31 Cal.4th 350, 352, the California Supreme Court held, “section 186.22(b)(5) applies only where the felony by its own terms provides for a life sentence.” Here, defendant’s life term derives from the Three Strikes law, not from his underlying felony violation of Health and Safety Code section 11351 which provides for terms of two, three, or four years. Accordingly, under People v. Montes, because defendant’s underlying felony did not, by its own terms provide for a life sentence, the trial court properly imposed the consecutive two-year term under section 186.22, subdivision (b)(1)(A).
DISPOSITION
The abstract of judgment is ordered amended as follows: the terms under section 12022.1 as to counts 2, 3, and 4 are stricken, and the two-year terms under section 186.22, subdivision (b)(1)(A) as to counts 2, 3, and 4 are stricken and replaced with one-year terms. In all other respects, the judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.