P. v. Armstrong

Filed 8/21/08 P. v. Armstrong CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Affirmed.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Chondray Armstrong was charged with one count of possession of cocaine base for sale, a violation of Health and Safety Code section 11351.5. An enhancement alleged that the crime was for the benefit of the East Coast Crips, a criminal street gang, within the meaning of Penal Code section 186.22, subdivision (b).^[1] A second count alleged the substantive criminal street gang crime described in section 186.22, subdivision (a). A third count charged defendant with a misdemeanor violation of section 148, subdivision (a)(1), resisting arrest.^[2]

Three prior convictions were alleged within the meaning of section 667.5, subdivision (b). One of the prior conviction allegations was also a strike allegation within the meaning of section 667, subdivisions (c) and (e)(1), and section 1170.12, subdivision (c)(1).

The jury convicted defendant of possession of cocaine for sale, but found the criminal street gang enhancement not true. However, it convicted defendant of the substantive criminal street gang crime alleged in count 2. Defendant was also convicted of resisting arrest.

The trial court subsequently found the prior conviction allegations, including the prior strike allegation, to be true. It therefore sentenced defendant to a midterm sentence of four years on count 1, doubled because of the prior strike conviction, for a total of eight years. Defendant was also sentenced to one-third the midterm on count 2, for a consecutive term of one year four months, and a concurrent 180-day term for resisting arrest. Defendant received two one-year consecutive terms for two priors, and a five-year consecutive term for the third prior, for a total sentence of 16 years 4 months.

Defendant appeals, contending that the trial court erred in instructing the jury on the elements of the substantive charge of street terrorism, as charged in count 2. He also contends that the trial court erred in imposing a consecutive sentence for count 2.

Finding no error, we affirm.

FACTS

Deputy Lamb of the Riverside County Sheriffs Department testified that he was a member of a special enforcement team gang unit in September 2005. On September 8, 2005, he was on patrol in a section of Moreno Valley with a high crime rate and drug activity.

About 6:00 p.m., Deputy Lamb drove down an alley in the area and saw a sport utility vehicle parked in a parking stall with music blaring. The deputy and his partner approached the vehicle and found defendant in the drivers seat with a passenger next to him. Defendant repeatedly reached towards the center console.

Deputy Lamb removed defendant from the car and noted that defendant, who was shirtless, was covered with gang tattoos. As the deputy attempted to place defendant into the patrol car, defendant broke free and ran away. Defendant was apprehended within minutes and arrested. Defendant was found to be carrying $500 in cash. The vehicle was searched and cocaine base was found in a bag near the center console of the vehicle.

Deputy Lambs partner, Anthony Johnson, testified that he focused on the passenger, Deandre Miles. Miles stated he was on parole and Deputy Johnson removed him from the vehicle. In searching the vehicle, Deputy Johnson found a plastic bag with six other bags inside of it. The smaller bags each contained equal amounts, approximately two grams, of crack cocaine. A total of 12.41 grams of cocaine base was recovered. The deputy also found three grams of marijuana.

Defendant testified he was a crack cocaine user. Defendant said that he was buying the crack cocaine from Miles for his personal use when he was arrested. He was going to purchase one bag (two grams). He would pay $60 for two grams. He denied having more than $90 on his person when arrested.

Defendants testimony was rebutted by two deputies familiar with sales of crack cocaine, including the amounts sold and street prices.

The jury disbelieved defendant and convicted him of possession of the cocaine base for sale.

On the gang issues, defendant testified that he had joined the East Coast Crips at age 13.^[3] He knew it was a criminal gang, but he was no longer an active member. He began accumulating tattoos and by age 17 or 18, his body was fully covered by them. He also admitted having an extensive criminal record, including numerous parole violations.

A gang expert, Deputy Ken Thurm, testified for the prosecution to aid the jury in understanding criminal street gangs. He testified that the East Coast Crips is a criminal street gang whose primary activities are drug dealing, prostitution, and assaults. He also described defendants tattoos and opined that defendant was an active member of the East Coast Crips. Deputy Thurm further testified that, in his opinion, defendant possessed 12.41 grams of crack cocaine for sale for the benefit of the East Coast Crips.

In addition, Deputy Johnson testified that defendant admitted being a member of the East Coast Crips at the time of his arrest, and a jail classification officer testified that defendant admitted being a member of the East Coast Crips in 2004.

As noted above, the jury found the enhancement allegation of section 186.22, subdivision (b), to be not true, but convicted defendant of the substantive crime of participation in a criminal street gang within the meaning of section 186.22, subdivision (a).

DISCUSSION

A. Jury instructions on the elements of active participation in a criminal street gang.

Defendant first contends that the trial court erred in instructing the jury on the elements of the substantive charge of active participation in a criminal street gang, as charged in count 2.

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 by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.^[4] (Italics added.)

The jury was instructed with CALJIC No. 6.50, entitled Gang Crime. After repeating the statutory language and referring to a previous definition of pattern of criminal activity, the instruction defines active participation and felonious criminal conduct. Under the instruction, felonious criminal conduct includes the possession of cocaine base for sale.

CALJIC No. 6.50 then defines the elements of the crime: 1. A person actively participated in a criminal street gang; [] 2. The members of that gang engaged in or have engaged in a pattern of criminal gang activity; [] 3. That person knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; and [] 4. That person either directly and actively committed or aided and abetted . . . other members of that gang in committing the crime of possession of cocaine base for sales.

Defendant contends that the fourth element of the crime, as stated in the instruction, misstates the law by allowing the jury to find defendant guilty without requiring it to find that the charged crime promoted or furthered the gang.

More specifically, defendant contends that promoting the gang is an element of the crime. For this proposition, defendant relies on People v. Herrera (1999) 70 Cal.App.4th 1456 (Herrera). In that case, while discussing a section 654 issue, the court said: [S]ection 186.22, subdivision (a), . . . is part of the Street Terrorism Enforcement and Prevention Act which was enacted by emergency legislation in 1988. [Citation.] The Legislature passed these criminal penalties and strong economic sanctions as a response to the increasing violence of street gang members throughout the state. Previously, there was no existing law that made the punishment for crimes by a gang member separate and distinct from that of the underlying crimes. [Citation.] [] Section 186.22, subdivision (a) punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself. Hence, under section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminal street gang. However, he does not need to have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendants objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense. For example, this subdivision would allow convictions against both the person who pulls the trigger in a drive-by murder and the gang member who later conceals the weapon, even though the latter member never had the specific intent to kill. Hence, section 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime may thus possess two independent, even if simultaneous, objectives[,] thereby precluding application of section 654. [Citation.] (Herrera, at pp. 1467-1468, italics added, fns. omitted.)

Defendant therefore reads the emphasized language to mean that an element of the crime is that defendant must have the objective to promote, further or assist the gang in its felonious conduct.

The People disagree. They contend that, although the instructions did not require the jury to find that the crime benefited the gang, such benefit is not an element of the crime described in 186.22, subdivision (a). In other words, the People read the statutory phrase, promotes, furthers, or assists in any felonious criminal conduct by members of that gang to refer to the commission of any felony by gang members, not just to felonious conduct which will benefit the gang itself.

The parties cite the later case of People v. Ngoun (2001) 88 Cal.App.4th 432 (Ngoun). In that case, the court considered a more obvious issue arising from the fact that the statute does not appear to directly apply when the defendant is himself the perpetrator of the felonious conduct, not merely an aider and abettor. Quoting Herrera, the court held that the section applies to the perpetrator, as well as to aiders and abettors. (Ngoun, at pp. 434, 436.)

Specifically, the court said: 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. [Citation.] 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.)

Thus, under the statutory language, the crime requires that defendant (1) actively participates in a criminal street gang; (2) knows that its members engage in a pattern of criminal activity; (3) and willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang. (People v. Castenada (2000) 23 Cal.4th 743, 749.) The defendant does not need to have the intent and objective inherent in the underlying felony. It is sufficient if he has the intent to aid a fellow gang member. Thus, if a gang member is selling drugs, a fellow gang member is guilty under section 186.22, subdivision (a), if the fellow gang member assists the member selling drugs, whether or not he actually has the intent to sell drugs.

Under Ngoun, the statute applies to a defendant who is both a gang member and is also the perpetrator of felonious gang-related conduct. (Ngoun, supra, 88 Cal.App.4th at p. 436.) As the court said: 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. (Ibid.) Thus, unlike the aider and abettor situation, the defendant who is the direct perpetrator of the crime must have the intent to commit the felony itself and, if he does, he may be convicted of both the felony and the section 186.22, subdivision (a), violation. (Cf. People v. Salcido (2007) 149 Cal.App.4th 356, 369-370.)

Several reported opinions have involved a defendant convicted both as a perpetrator of a substantive felony and as a gang member under section 186.22, subdivision (a) based upon the same felony. In People v. Herrera, supra, 70 Cal.App.4th 1456, the defendant was convicted of murder as the perpetrator and also of a violation of section 186.22, subdivision (a) based upon the murder. Similar dual convictions were involved in People v. Castenada, supra, 23 Cal.4th 743, People v. Funes (1994) 23 Cal.App.4th 1506, 1516 [], and People v. Smith (1993) 21 Cal.App.4th 342 []. Although we recognize that the contention advanced by appellant here was not raised in any of these cases, all of these convictions were affirmed without mention of the issue. (Ngoun, supra, 88 Cal.App.4th at pp. 436-437.)

The same is true in this case. Defendant could properly be convicted of the felony of possessing cocaine base for sale and for the crime of participation in a criminal street gang under section 186.22. We concede, however, that the instruction was less than clear, and that the trial court muddled the issue by mixing CALJIC and CALCRIM instructions on the enhancement and the substantive gang crime. Nevertheless, we are convinced that any instructional error was harmless beyond a reasonable doubt under the circumstances presented here.^[5]

B. Applicability of section 654.

Section 654 states, in relevant part: 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.

Defendant contends the trial court erred when it sentenced defendant for both possession of cocaine base for sale and participation in a criminal street gang. Defendant argues the statute applies because both violations were based on one act, i.e., the possession of cocaine base for sale. Defendant concedes that two cases have ruled against his position (People v. Ferraez (2003) 112 Cal.App.4th 925 (Ferraez); Herrera, supra, 70 Cal.App.4th 1456), but argues that a more recent case from the same court supports his position (People v. Vu (2006) 143 Cal.App.4th 1009).

In Herrera, our colleagues in Division Three set out the applicable general principles: Since Neal v. State of California (1960) 55 Cal.2d 11[], the test under section 654 has been: 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. [Citation.] In People v. Latimer (1993) 5 Cal.4th 1203 [], our Supreme Court reaffirmed the Neal approach and noted several cases in which the intent and objective test had been applied to sustain multiple sentences. [Citation.] The Latimer court also clarified that section 654 applies to sentencing both for crimes flowing from a single act and for crimes resulting from an indivisible course of conduct which violates more than one statute. [Citations.] [] The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal. [Citations.] (Herrera, supra, 70 Cal.App.4th at p. 1466.)

The court then found that Herreras conviction for street terrorism is likewise divisible from the attempted murders. Looking to Herreras intent and objective with respect to each crime [citation], we conclude that the sentence should stand. [M]ultiple punishment . . . may be imposed where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives. [Citations.] [Citation.] (Herrera, supra, 70 Cal.App.4th at p. 1466.)

It concluded that section 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime may thus possess two independent, even if simultaneous, objectives[,] thereby precluding application of section 654. [Citation.] (Herrera, supra, 70 Cal.App.4th at p. 1468, fn. omitted.)

Finally, the court noted that if section 654 were held applicable here, it would render section 186.22, subdivision (a) a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang. [T]he purpose of section 654 is to insure that a defendants punishment will be commensurate with his culpability. [Citation.] [Citation.] We do not believe the Legislature intended to exempt the most culpable parties from the punishment under the street terrorism statutes. (Herrera, supra, 70 Cal.App.4th at p. 1468, fn. omitted.) The court therefore found that the defendant had two independent objectives, and section 654 was inapplicable.

Ferraez was also decided by Division Three. Relying on Herrera, the court rejected defendants argument that he only had one intent and one objective: Here, defendant possessed the drugs with the intent to sell, and he also intended to commit that felony to promote or assist the gang. While he may have pursued both objectives simultaneously, they were nonetheless independent of each other. Consequently, the trial court was not required to stay defendants sentence for the gang crime under Penal Code section 654. [Citation.] (Ferraez, supra, 112 Cal.App.4th at p. 935.)

As defendant notes, the more recent case of People v. Vu, supra, 143 Cal.App.4th 1009, was also decided by our colleagues in Division Three. The opinion states: Herrera is distinguishable because the defendant was charged with a course of criminal conduct involving two gang-related, drive-by shootings in which two people were injured. [Citation.] Ferraez is distinguishable because under the facts of that case, the trial court could have found independent objectives. [Citation.] That is not the situation here. [] Under Neal, Vu committed different acts, violating more than one statute, but the acts of conspiracy and street terrorism constituted a criminal course of conduct with a single intent and objective. That single criminal intent or objective was to avenge [the victims] killing by conspiring to commit murder. Although that intent or objective could be parsed further into intent to promote the gang and intent to kill, those intents were not independent. Each intent was dependent on, and incident to, the other. Because street terrorism prescribes a lesser sentence than conspiracy to commit murder, Penal Code section 654 prohibited imposition of sentence on count 3. (Id. at pp. 1034-1035.)

Defendant argues that the facts in People v. Vu, supra, are closer to the facts here, and that we should therefore find that defendant acted with a singular intent and committed but one act; possessing cocaine base for sale permitting a conviction for two, separate offenses. Sentencing as to both is prohibited.

We disagree. The facts here are much closer to Ferraez. In both cases, defendant was convicted of possessing cocaine base for sale and street terrorism. In Ferraez, the court pointed out that defendant possessed the drugs with the intent to sell, and he also intended to commit that felony to promote or assist the gang. While he may have pursued both objectives simultaneously, they were nonetheless independent of each other. Consequently, the trial court was not required to stay defendants sentence for the gang crime under Penal Code section 654. [Citation.] (Ferraez, supra, 112 Cal.App.4th at p. 935.)

The same is true here, and the result is the same: Section 654 does not prevent consecutive sentencing in this situation.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ RICHLI

Acting P. J.

We concur:

/s/ KING

J.

/s/ MILLER

J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All further statutory references will be to the Penal Code unless otherwise indicated.

^[2] A fourth count was subsequently dismissed.

^[3] At the time of arrest, defendant was age 29.

^[4] In contrast, the enhancement of section 186.22, subdivision (b), applies to 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 . . . . The trial court confused the issues presented by the two sections by using CALCRIM No. 1401 and 1403 to instruct on the enhancement, and CALJIC No. 6.50 to instruct on the substantive crime defined in section 186.22, subdivision (a).

^[5] Under the current CALCRIM 1400, the jury must find, as the third element of a section 186.22 violation, that The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by: [] a. directly and actively committing a felony offense; [] or [] b. aiding and abetting a felony offense. While we agree with Ngoun that section 186.22 applies to perpetrators of felonious gang-related conduct as well as aiders and abettors, we do see an issue when the offense committed by the direct perpetrator is not a gang related felony, but rather a felony such as child molestation or incest, which would not promote, further, or assist the gang under any possible theory. But since the offense here, selling cocaine base, was a principal activity of the gang under the experts testimony, we leave the issue for another day.

We note, however, that a similar argument was recently rejected in People v. Martinez (2008) 158 Cal.App.4th 1324: [S]ection 186.22(a) does not require that the crime be for the benefit of the gang. Rather, it punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself. [Citation.] (Id. at p. 1334.)