legal news


Register | Forgot Password

P. v. Bender

P. v. Bender
04:18:2013






P












P. v. Bender



















Filed 4/17/13 P. v. Bender CA1/4











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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



FIRST
APPELLATE DISTRICT



DIVISION
FOUR




>






THE PEOPLE,

Plaintiff and Respondent,

v.

JACORI
BENDER,

Defendant and Appellant.






A131954



(San Francisco City & County

Super. Ct. No. 212640)






While
conducting a routine patrol in territory claimed by a gang, police officers saw
a group of people, including appellant, standing on a basketball court. When someone shouted a warning about the
presence of the police, the group scattered and ran. The police pursued them, and one of the
officers saw appellant throw a gun into the street. After appellant was arrested, a broken
Ecstasy pill was found in his pocket.

Appellant
was convicted of a felony count of carrying
a loaded firearm in public while an active participant in a street gang,

with an enhancement for committing the crime for the benefit of a gang and with
the intent to assist, further, or promote criminal conduct by gang
members. He was also convicted of
possessing a gun after being convicted of a misdemeanor (also with a gang
enhancement), and of possessing a controlled substance while armed with a
gun. We conclude that the prosecution
failed to prove that appellant actively participated in a street gang while
carrying the gun. We therefore reverse
the felony gun possession conviction, and remand for further proceedings.

facts and procedural background

A.
Arrest of Appellant and Companions

On May 28,
2010, at around 10:00 p.m., five plainclothes officers from the San Francisco
Police Department conducted a foot patrol through the Oakdale housing complex
in the Bayview district of San Francisco.
This was a routine patrol; the officers were not responding to a
specific crime report.

The
officers spotted a group of more than five people on a basketball court at the
end of the street, adjacent to the housing complex. The people were not playing basketball. The officers heard voices shouting “Police in
the cuts,” and understood the term “cuts” to refer to the footpaths running
between the buildings in the complex.

As soon as
the warning was shouted, the people in the group began running away in
different directions, and the officers ran after them. One of the pursuing officers was Luis
DeJesus. As DeJesus ran, he soon saw
appellant and two other young men emerge from an alley in front of him to the
left, roughly 15 feet away. DeJesus knew
appellant and his companions, Andrew Whitfield and Tishan Lowe, from prior
contacts with them. By the light of his
flashlight, DeJesus saw appellant throw a gun into the middle of the nearby
street. He also heard Whitfield yell
that the police were there. Appellant
and his companions continued to run, and DeJesus pulled out his own gun and
ordered the youths to stop.

Another
officer, John Hart, joined DeJesus in pursuing the young men, but after the gun
was thrown, Hart stayed behind because he was concerned about the gun. DeJesus stopped and detained appellant and
Lowe, while Hart detained Whitfield.
When Hart approached Whitfield, Whitfield put up his hands and said,
“Not me.”

In all,
DeJesus, Hart, and the other officers detained six people on that
occasion—appellant, Lowe, Whitfield, Marion Tukes, Keimareea Lake, and Anthony
Redwood—all of whom were young adult Black men.
All of them were wearing dark clothing, except that Tukes had on a white
t-shirt; none of them were wearing red.
Hart did not hear them say anything about the Oakdale Mob gang, or see
them flash any gang signs, nor did David Johnson, one of the other officers
present.

B.
Investigation and Forensic Testing

After
appellant was detained, DeJesus returned to where he had first seen appellant,
and retrieved the gun, using latex gloves while handling it. The gun proved to be loaded, with one round
in the chamber and seven rounds in the magazine. The gun was later identified as one that had
been stolen from a woman’s car in Fairfield on April 16, 2010.

The
officers released Lake and Redwood, but took appellant, Whitfield, Lowe, and
Tukes into custody and transported them to the Bayview police station. At the police station, appellant was
searched, and the officers found a small baggie of marijuana and a broken pill
in his pocket. Based on a field test,
the officers suspected that the pill contained the drug popularly known as
Ecstasy. Subsequent laboratory analysis,
in the form of microcrystalline reagent tests, confirmed that the pill
contained 3, 4‑Methylenedioxymethamphetamine, abbreviated as MDMA,
which the prosecution’s criminalist, Marco Romo, explained was “known on the
street as Ecstasy.”

At the
police station, appellant was booked for gun possession, gang membership, and
possession of the marijuana and the pill.
Whitfield, Lowe, and Tukes were also booked for gun possession and gang
membership, but they were later released, and the charges against them were
ultimately dropped.

Sergeant
Kevin Labanowski of the San Francisco Police Department’s Gang Task Force unit
interviewed all of the arrestees, including appellant, that evening. Whitfield, Lowe, and Tukes, who were
interviewed before appellant, all disclaimed any knowledge of the gun. A recording of the interview with appellant
was played for the jury. When Labanowski
asked appellant why he had the gun, appellant either responded by denying that he
had a gun, or declined to answer. During
the interview, Labanowski showed appellant a photograph of the gun that
Labanowski had taken in the police station.

No
fingerprints were discernible on the gun.
Labanowski took DNA samples from all of the young men who were arrested,
and another officer swabbed the gun for DNA.
All of the young men’s DNA was analyzed to see whose DNA was on the
gun. The prosecution’s forensic
serologist, Thomas Fedor, testified that there was DNA from more than one
person on the sample taken from the grip of the gun. Most of it was contributed by one person, the
“major contributor.” Appellant’s DNA was
consistent with that of the major contributor, and there was only a very small
chance—“one in 500 sextillion approximately”—that appellant (or a close
relative of his) was not the person
who was the major contributor.
Whitfield, Tukes, and Lowe were all excluded as possible sources of the
DNA on the gun.

C.
Charges Against Appellant

In an
amended information filed February 2, 2010 (the information), appellant was
charged with seven counts. Counts 1 and
2 each charged appellant with carrying a loaded firearm on a public street
(former Pen. Code, § 12031, subd. (a)(1)href="#_ftn1" name="_ftnref1" title="">[1]). This crime (loaded gun possession) is
normally a misdemeanor, but is punishable as a felony under specified
circumstances, including (1) if the firearm is stolen and the defendant
knew or had reasonable cause to believe that it was stolen (§ 12031,
subd. (a)(2)(B)), or (2) if the defendant is an active participant in
a criminal street gang as defined in
section 186.22, subdivision (a)href="#_ftn2" name="_ftnref2" title="">[2]
(§ 12031, subd. (a)(2)(C)href="#_ftn3"
name="_ftnref3" title="">[3]). Accordingly, in order to prosecute the loaded
gun possession as a felony, count 1 of the information charged that appellant
“knew and had reasonable cause to believe” the firearm was stolen, and count 2
of the information charged that appellant was an active participant in a
criminal street gang. Both count 1 and
count 2 also charged, as the basis for a sentence enhancement under
section 186.22, subd. (b)(1)(A),href="#_ftn4" name="_ftnref4" title="">[4]
that the gun possession offense was “committed . . . for the benefit
of, at the direction of, and in association with a criminal street gang with
the specific intent to promote, further and assist in href="http://www.fearnotlaw.com/">criminal conduct by gang members.”

Count 3
charged appellant with possessing a firearm within 10 years after being
convicted of a misdemeanor, under former section 12021,
subdivision (c)(1).href="#_ftn5"
name="_ftnref5" title="">[5] The predicate misdemeanor was appellant’s
November 2009 conviction under section 422 for making criminal
threats. Count 3, like counts 1 and 2,
included a gang enhancement allegation under the gang enhancement statute.

Count 4
charged appellant with receiving or buying stolen property, i.e., the gun he
was seen throwing into the street just prior to his arrest. (§ 496, subd. (a).) Count 5 charged appellant with the
substantive offense of participation in a criminal street gang in violation of
section 186.22(a), the gang participation statute.

Count 6
charged appellant with possession of a firearm while possessing a controlled
substance, in violation of Health and Safety Code section 11370.1,
subdivision (a), and count 7 charged appellant with possession of a
controlled substance, in violation of Health and Safety Code section 11377,
subdivision (a). In both of these
counts, the information described the controlled substance in question as “3,4
MDMA METHYLENEDIOXYMETHAMPHETAMINE (ECSTASY), an analog of methamphetamine
pursuant to California Health and Safety Code Section 11401[,
subdivision] (a).” (Original
capitalization.)

D.
Testimony of Gang Expert

At
appellant’s trial, the prosecution’s evidence in support of the gang
participation charge and the gang enhancement allegations consisted almost
entirely of the testimony of San Francisco Police Inspector Leonard Broberg,
who qualified as a gang expert. Broberg
explained that he had been familiar with the Oakdale Mob gang since 1996, and
was involved in a civil court proceeding leading to the issuance of an injunction
against that gang in March 2007. The
injunction named 22 adults as members of the Oakdale Mob, and was later
modified to add 6 more. Appellant was
not among those people; the only person arrested with appellant who was listed
on the injunction was Lake.

Broberg
testified that most people involved in gangs are between their mid-teens and
mid- to late twenties. He testified that
the Oakdale Mob is one of six “validated” gangs—that is, gangs that a court has
found to exist—in the Bayview-Hunters Point area. After explaining the values and lifestyle of
gang members, Broberg indicated that individuals within a gang will often share
access to “community guns” that are hidden in the gang’s territory and made
available to gang members when needed. The Oakdale Mob’s territory includes two
blocks of Oakdale and two blocks of Palou, bounded on the east by Griffith, on
the west by Ingalls, and on the north by Navy Road, as well as a cul-de-sac off
Oakdale called Baldwin Court. This
territory includes the location where appellant was arrested.

Broberg
opined that as of May 28, 2010, the Oakdale Mob had between 50 and 75
“documented” members, that is, persons who had come to the attention of law
enforcement as being members of that gang.
He described the group’s hand signs, and identified its rivals and
allies. He opined that the Oakdale Mob
engages in a pattern of violent criminal activity that includes narcotics
trafficking, robberies, weapons violations, aggravated assaults, and drive-by
shootings.

Broberg
explained that the police use multiple criteria to determine whether a person
is a member of a gang. The factors
considered include: whether the person has admitted gang membership to an
official; whether a reliable informant has indicated that the person is a gang
member, or an untested informant has so indicated and the information has been
corroborated; who the person’s associates are; whether the person spends time
in the gang’s territory; whether the person has been seen in gang clothing, or
has gang tattoos or paraphernalia; and how the person has responded during
“jailhouse classification,” which is a process used by the sheriffs to decide
whom an individual can or cannot be housed with in jail.

Broberg
related several incidents of gun-related crimes involving known Oakdale Mob
gang members, including some in which appellant was present or involved in some
way. In one incident, in December 2009,
there was a shooting at Skyline College in San Mateo County, during which an
Oakdale Mob member named Eric Brewer was wounded. Appellant was detained during the
investigation of that incident, along with Brewer and two other Oakdale Mob
members, Germane Benjamin and Demaria McGhee.
A gun was found in a backpack associated with the group, and Brewer and
Benjamin were convicted of weapons possession crimes. Brewer initially denied knowing any of the
people he was arrested with, which Broberg testified often occurred with gang
members. Brewer ultimately accepted gang
conditions as part of his sentence, however, and Benjamin pleaded guilty to a
gang charge. In Broberg’s opinion,
Benjamin was an Oakdale Mob member.

Broberg
also testified about another incident involving McGhee, which occurred in San
Francisco in April 2008. Broberg was the
investigating officer in that case.
McGhee and another man came up to a car that was parked in the Oakdale
Mob’s territory, and robbed the occupants of the car at gunpoint. McGhee, who was identifiable as an Oakdale
Mob member by his tattoos, pled guilty to gang charges in connection with that
case.

Broberg was
the investigating officer in an incident involving Lake, who was named in the
gang injunction and arrested along with appellant in the present case. On December 10, 2007, Lake and another person
from Oakdale were stopped by local security officers while riding in a car, and
a gun was found on Lake’s side of the car.
Lake pleaded guilty to weapons charges and a gang crime in that case.href="#_ftn6" name="_ftnref6" title="">[6]

Broberg
testified that in his opinion, the Oakdale Mob is a violent gang, and appellant
is a member of it. Broberg based his
opinion about appellant’s gang membership in part on his knowledge of appellant
and his history; his knowledge of appellant’s association with other Oakdale
Mob members; and appellant’s presence with gang members in the gang’s
territory, including on occasions when weapons were recovered.

Broberg’s
opinion about appellant’s gang membership was also based on a number of police
reports in which appellant was mentioned in association with the Oakdale Mob.href="#_ftn7" name="_ftnref7" title="">[7] The earliest such incident was in November
2008, when appellant was mentioned, along with Lake, Whitfield, and another man
named Omar Williams,href="#_ftn8"
name="_ftnref8" title="">[8] in
a police report about an incident in which security guards reported a shooting
in the area of Oakdale and Baldwin. When
the police arrived, the guards told them that appellant and the other three men
had left the area at the time of the incident.
All four men were detained, and officers who searched the area found a
number of bullets and a magazine in the area where the shots were reported.

Broberg
acknowledged that he would not consider appellant a gang member based on just
that one isolated incident; rather, “there needs to be a sustained pattern of
behavior” that is observable “over a period of time.” However, the fact that shots were fired on this
prior occasion, in an area that was gang territory and known for a high level
of violence, was a significant indicator that it involved gang-related
activity.

Another
incident involving appellant occurred on August 19, 2009, on Griffith in the
Oakdale Mob territory. Appellant was
detained on that date, along with Brewer, Whitfield, and Lowe, as well as Randy
Tallo and Edgar Wilson. Wilson had a
gun, and all of the others in the group were believed by the police to be
Oakdale Mob members.

In addition,
on September 25, 2009, appellant and Benjamin were arrested for threatening
some private security guards who were protecting a piece of property near the
Oakdale Mob territory. Broberg was one
of the officers who investigated the incident.
Appellant was reported to have told the guards he was a “real Oakdale
boy,” that the guards did not belong in that area, and if they continued
“messing with” appellant and other Oakdale Mob members, they could get
shot. Benjamin threatened, in
appellant’s presence, that if the guards said anything about the incident, he
would take their heads off. Based on the
September 2009 incident, appellant was convicted of a misdemeanor violation of
section 422.

At the time
of his arrest in September 2009, appellant was wearing a red Mohawk hairdo and
red underwear. According to Broberg, the
color red was associated with the Oakdale Mob, and other members had also dyed
their hair red.

Appellant
was interviewed after his September 2009 arrest, and a recording of the
interview was played for the jury.
During the interview, appellant told police that he had grown up in the
Oakdale area, and that although he had left for a while when his mother sent
him to foster care to try to keep him out of trouble, he had been “claiming
Oakdale” since about 2002. According to
Broberg, this was a declaration of membership in the Oakdale Mob, but when
asked outright during the interview whether he was with the Oakdale Mob,
appellant responded, “Man, that’s what you all want to say, I mean.” Appellant told the police that if he was
jailed with people from Harbor Row or Kirkwood (rival gangs), they would have
to fight. Broberg opined that this was
another indication that appellant was affiliated with the Oakdale Mob.

During the
interview, appellant showed the officers his tattoos, and indicated that he
intended to get additional tattoos.
However, appellant disclaimed any intent to be tattooed with Oakdale Mob
symbols, because “That’s stupid” and “That’s hot.” According to Broberg, appellant’s >lack of gang-related tattoos did not
mean that he was not a gang member;
rather, in light of appellant’s explanation, it was consistent with a recent
trend among gang members, including appellant, who were beginning to realize
that having gang tattoos would cause them trouble with the police.

Broberg
briefly discussed appellant’s arrests in January and February 2010, which arose
from his returning to the Oakdale neighborhood in violation of a stay-away
order. He then discussed an incident on
March 17, 2010, in which appellant was in a car with Tukes (one of his
companions at the time of his arrest), Williams, and a man named Kenneth Lieu.href="#_ftn9" name="_ftnref9" title="">[9] On that date, officers responding to a report
of shots fired in the Oakdale territory stopped a car that was seen speeding
away. Appellant, who was sitting in the
front passenger seat, had sustained a gunshot wound to his leg, yet the people
in the car did not inform the officers of that fact. Once the officers noticed that appellant was
wounded, they summoned an ambulance and had him taken to the hospital. Appellant declined to cooperate in the
investigation of the shooting, which Broberg believed reflected the “don’t
snitch” mentality characteristic of gangs.
Broberg opined that Tukes and Williams were Oakdale Mob members, but had
no opinion in that regard as to Lieu.

On April
17, 2010, a month after appellant was wounded in the leg, he was riding in a
car with an Oakdale Mob member named Jeron Jones when the police received a
report that someone in that car had brandished a gun. The police attempted to stop Jones’s car, but
Jones eluded them, and they were not able to locate the car again. Appellant’s presence in the car during this
incident reinforced Broberg’s belief that appellant was an Oakdale Mob member.

On April
24, 2010, appellant was detained near a location in Oakdale Mob territory where
officers were conducting a probation search.
Several known Oakdale Mob gang members were also detained along with
appellant. During the search, the
officers found a cache of hollow point bullets in a crawl space under a
building on Oakdale. Broberg testified
that gang members often hid guns and bullets in spaces where others could find
them if they needed them.

Broberg
testified that the incident giving rise to the present case reinforced his
belief that appellant was an Oakdale Mob member, because appellant was in the
gang’s territory late at night, with other gang members, and in possession of a
gun. His opinion was also based on
appellant’s having been seen in the area in the company of Oakdale Mob
associates on numerous occasions, as recorded on field identification cards
prepared by police to document the activities of people they are monitoring.

Finally,
Broberg opined that when appellant possessed the gun that DeJesus saw him throw
away on May 28, 2010, he did so to promote, further, and assist in criminal
conduct on the part of the Oakdale Mob gang.
This opinion was based on appellant’s Oakdale Mob membership; his presence
in the Oakdale Mob’s territory on that occasion; his refusal to cooperate in
the investigation when he was shot two months earlier; his past association
with Oakdale Mob members who were armed with guns; Broberg’s own knowledge that
guns were frequently shared; the fact that a warning was given when the police
were spotted, and the group of people appellant was with then split up and ran
in different directions. Broberg opined
that appellant, as a gang member, would use a gun to initiate an action such as
committing a crime, taking vengeance, or retaliating against a rival.

Broberg
admitted on cross-examination, however, that he had never been told by an
Oakdale Mob member or suspected member that appellant had committed any crime
in their company, and that he was not aware that appellant had been involved in
any robberies, burglaries, narcotics sales, or drive by shootings (except for
the shooting in which appellant was the victim). He also acknowledged that no one other than
fellow police officers, and no one in the Oakdale community or the communities
associated with rival gangs, had identified appellant to him as a member of the
Oakdale Mob.

E.
Defense Case

Appellant’s
grandmother, Lavahn Cecil Gay; his aunt, Latrice Manuel; and his godmother, Kim
Justin, all testified in his defense.
The thrust of their testimony was to demonstrate that appellant had
childhood, family, and job-related ties both to the Oakdale neighborhood and to
other young men from that neighborhood, and thus had ample reasons to be in the
area and congregate with those people that did not involve a connection with
any gang. Justin also testified that
appellant’s red Mohawk hairdo was just a style, and had no gang implications,
and that his “claiming” Oakdale simply meant that he identified it as his
community or where he lived. A
representative of a former employer of appellant’s corroborated Justin’s
testimony that appellant worked at a job in the Oakdale area during 2008-2009.

F.
Jury Verdict and Sentence

The jury’s
verdict was returned on March 14, 2011.
The jury convicted appellant on counts 1 through 3 of unlawfully
carrying a loaded firearm, and on count 2 of doing so while an active
participant in a criminal street gang, but rejected the allegation in count 1
that he knew or had reason to know the gun was stolen. By the same token, the jury acquitted
appellant of the receiving stolen property charge pleaded in count 4. The jury found true the gang enhancement
allegations on counts 1 through 3. The
jury also convicted appellant of possessing a controlled substance while armed
with a firearm, as pleaded in count 6.
The jury followed the trial court’s instruction not to return a verdict
on counts 5 and 7 if it convicted appellant on the greater offenses alleged in
counts 2 and 6, respectively.

On April 8,
2011, appellant was sentenced to the middle term of two years in state prison
on count 2, with a consecutive two years for the gang enhancement, with a
three-year sentence on count 6 to be served concurrently with the sentence on
count 2. Sentencing on count 3 was
stayed pursuant to section 654.
Appellant’s conviction on count 1 was reduced to a misdemeanor and
vacated. Appellant was also ordered to
pay restitution fines, as well as a court security fee of $160 under
section 1465.8, subdivision (a)(1).
This timely appeal ensued.

discussion

A.
Sufficiency of Evidence to Support Felony Conviction on Count 2

Count 2
charged appellant with carrying a loaded firearm in public, and alleged that
the crime was a felony rather than a misdemeanor, under the gang participant
gun possession statute (§ 12031(a)(2)(C)), because when it was committed,
appellant was an active participant in a criminal street gang. Appellant does not challenge his underlying
conviction for carrying a loaded firearm in public. He argues, however, that the conviction must
be reduced to a misdemeanor, because the prosecution did not produce evidence
sufficient to establish the additional element that he was an active
participant in a criminal street gang, as defined in section 186.22(a), at
the time of the crime.

After
briefing was complete in this case, our Supreme Court decided >People v. Rodriguez (2012) 55 Cal.4th
1125 (Rodriguez).href="#_ftn10" name="_ftnref10" title="">[10] In Rodriguez,
a majority of the Supreme Court held that in order to convict a defendant of
the crime of active participation in a criminal street gang under
section 186.22(a), the prosecution must prove that the defendant promoted,
furthered, or assisted felonious criminal conduct by other members of the gang, not just the defendant himself. Thus, when a gang member acts alone in
committing a crime, he cannot be convicted of violating the gang participation
statute. (Id. at pp. 1128, 1138-1139.)

Even before
it decided Rodriguez, >supra, 55 Cal.4th 1125, the Supreme
Court had already held that the misdemeanor offense of loaded gun possession
cannot be elevated to a felony under the gang participant gun possession
statute, as the prosecution sought to do in the present case, merely by proving
that the defendant is “more than a nominal member of a criminal street gang.” (People
v. Lamas
(2007) 42 Cal.4th 516, 524 (Lamas).) Rather, the prosecution must prove all of the
elements of the gang participation statute, “including that defendant willfully
promoted, furthered, or assisted felonious conduct by his fellow gang members”
that was “distinct from the otherwise
misdemeanor conduct of carrying a loaded weapon.” (Ibid.,
original italics.)

Thus, the
effect of Rodriguez, >supra, 55 Cal.4th 1125, is to impose an
additional limitation on the reach of the gang participant gun possession
statute. Under Rodriguez and Lamas, >supra, 42 Cal.4th 516, taken together,
in order to elevate loaded gun possession to a felony under the gang
participant gun possession statute, the prosecution must prove that in
connection with the gun possession, felonious conduct “distinct from” the gun
possession was committed by gang members “distinct from” the defendant himself.

No such
proof was offered in the present case.
Even assuming for the sake of argument that appellant and his companions
were members of the Oakdale Mob gang, the prosecution did not offer any
evidence that at the time of appellant’s arrest, any gang members other than
appellant had just committed, were committing, or were about to commit any
felonious criminal conduct distinct from the gun possession itself. Indeed, the record is to the contrary. The arresting officers testified that their
presence on the scene was pursuant to a routine patrol rather than a specific
crime report. The gang members who were
arrested along with appellant were not charged with any crimes other than gun
possession and gang membership, and were not prosecuted for either of those
crimes. Although appellant had marijuana
and Ecstasy in his pocket, there is no indication in the record that his companions
possessed any drugs themselves, or even were aware that appellant had them.

Respondent
argues that there was sufficient evidence of the requisite felonious conduct
based on Broberg’s testimony that the gun would be available to other gang
members for use in the commission of future felonies, and that by bringing the
gun into the gang’s territory, appellant was assisting the gang in defending
its turf against potential encroachment by rivals. However, the felonious conduct by other gang
members that qualifies an incident of gun possession for punishment as a felony
must consist of one or more specific
felonies
occurring in direct conjunction with the gun possession. As the Supreme Court has emphasized in
several recent cases, including Rodriguez,
the gang participation statute requires proof of the defendant’s “promotion or
furtherance of specific conduct of
gang members and not inchoate future conduct. . . .” (Rodriguez,
supra, 55 Cal.4th at p. 1137,
original italics; see also Lamas, >supra, 42 Cal.4th at p. 526; >People v. Castaneda (2000) 23 Cal.4th
743, 749.) Thus, appellant’s gun
possession cannot be punished as a felony solely on the basis of Broberg’s
opinion testimony regarding how appellant and his companions probably planned
to use the gun.

Respondent
also argues that the jury could have found specific felonious conduct by the
other gang members in the form of a conspiracy between them and appellant to
conceal the gun from the police. We are
not certain that a conspiracy to conceal the gun is sufficiently distinct from
the gun possession itself to pass muster under the analysis of >Lamas, supra, 42 Cal.4th 516. (See >id. at p. 524 [gang participant gun
possession statute “applies only after
[gang participation statute] has been completely
satisfied by conduct distinct from
the otherwise misdemeanor conduct of carrying a loaded weapon” (original
italics)]; see also In re Jorge P.
(2011) 197 Cal.App.4th 628, 636-638 [offense of gun possession by minor, even
if treated as felony, was not sufficiently distinct from gun possession itself
to justify application of gang participant gun possession statute].) We need not reach this question, however,
because in the present case, this theory was not presented to the jury, and in
any event is not supported by substantial evidence in the record.

There is
uncontroverted evidence that one or more people in or near the group in which
appellant was standing shouted a warning about the presence of the police, and
that after hearing the warning, the group scattered and attempted to flee. However, there is no evidence as to where the
warning shouts originated. Thus, there
is no evidence that the person or people who uttered them was even a member of
the group appellant was with, much less an Oakdale Mob member or associate.

Nor was
there substantial evidence permitting
the inference that appellant threw the gun into the street in furtherance of a
conspiracy to conceal it. The police
witnesses testified, without contradiction, that the group in which appellant
was standing began to scatter almost immediately after the warning was shouted,
and that the gun was not thrown until after this occurred. This evidence does not support an inference
that appellant and his companions entered into a conspiratorial agreement to
conceal the gun before appellant threw it, because it is clear from the record
that they dispersed before they had time to reach such an agreement. Indeed, it appears to us that the only
inference a jury could reasonably draw from the evidence is that appellant
threw the gun as an individual, spur-of-the-moment reaction to the approach of
the police.

The only >specific conduct on the part of
appellant’s companions that is evidenced in the record is that they scattered
and ran upon learning that the police were nearby. This, however, is not a felony (see
§ 148, subd. (a)(1) [resisting a peace officer is a misdemeanor]),
nor does respondent argue otherwise.
Accordingly, there is insufficient evidence in the record to show
specific felonious conduct by gang members that was distinct from appellant’s
possession of the gun, and appellant’s felony conviction on count 2 must
be reduced to a misdemeanor.href="#_ftn11"
name="_ftnref11" title="">[11]

B.
Sufficiency of Evidence to Support Gang Enhancement on Count 3

In count 3
of the information, appellant was charged with violating
section 12021(c)(1) by possessing a firearm within 10 years after being
convicted of a misdemeanor (specifically, a violation of
section 422). Appellant does not
challenge the sufficiency of the evidence to support his underlying conviction
on count 3, but he does challenge the sufficiency of the evidence to
support the jury’s true finding on the gang enhancement allegation under
section 186.22(b).

Section 12021(c),
the statute under which appellant was convicted in count 3, is a so-called
“wobbler” offense—i.e., one that can be punished either as a misdemeanor or as
a felony. (See generally >Robert L. v. Superior Court (2003) 30
Cal.4th 894, 902 (Robert L.)
[defining “wobbler”].) Section 186.22(b),
the gang enhancement statute, provides that additional time shall be added to
the sentence imposed on “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.” (Italics added.) Due to the reference to conviction of a
felony in section 186.22(b), the gang enhancement statute can apply only
if appellant’s violation of section 12021(c) is sentenced as a felony.href="#_ftn12" name="_ftnref12" title="">[12] In the present case, the trial judge stayed
appellant’s conviction on count 3 under section 654. For that reason, no determination has been
made whether appellant’s conviction on count 3 was a felony, thus enabling
the gang enhancement statute to apply.

We will
assume, for purposes of this opinion, that on remand to the trial court,
appellant’s violation of section 12021(c)(1) can be sentenced as a felony,
which was how it was charged in the information. Accordingly, for the trial court’s guidance
in the event the court chooses that option, we discuss the merits of
appellant’s argument that the jury’s true finding on the section 186.22(b)
enhancement allegation is not supported by sufficient evidence.

In this
regard, appellant argues in one part of his opening brief that the enhancement
did not apply because “there was no evidence that appellant promoted,
furthered, or assisted in felonious conduct by the gang . . . .” However, that fact is not an element of section 186.22(b), but rather of section
186.22(a). As the Supreme Court recently
explained in Rodriguez, >supra, 55 Cal.4th at page 1138,
“[s]ection 186.22(a) and section 186.22(b)(1) strike at different
things. The enhancement under
section 186.22(b)(1) punishes gang-related conduct, i.e., felonies
committed with the specific intent to benefit, further, or promote the
gang. [Citation.] However, ‘[n]ot every crime committed by gang
members is related to a gang.’ [Citation.]”
Thus, “the gang enhancement under section 186.22(b)(1) requires both
that the felony be gang related and that the defendant act with a specific
intent to promote, further, or assist the gang, . . . [thereby]
provid[ing] a nexus to gang activity sufficient to alleviate due process
concerns. [Citation.]” (Id.
at p. 1139.)

Thus, as
appellant acknowledges elsewhere in his opening brief, what the prosecution was
required to prove in order to apply the section 186.22(b) enhancement to
appellant’s sentence on count 3 was that in possessing the gun, appellant
acted (1) “for the benefit of, at the direction of, or in association
with” the Oakdale Mob, and (2) with the “specific intent to promote,
further, or assist in any criminal conduct by” the Oakdale Mob. (§ 186.22(b)(1); see >People v. Gardeley (1996) 14 Cal.4th
605, 615-617 (Gardeley).) The jury was instructed accordingly, using
CALCRIM No. 1401.

As evidence
supporting the jury’s true finding on the gang enhancement allegation,
respondent cites Broberg’s testimony regarding the incident on March 17, 2010,
in which appellant was shot in a location within the Oakdale Mob’s territory,
and was later found in a car with Tukes.
Respondent argues that the jury was entitled to infer from this incident
that appellant’s intent in possessing the gun was to enable members of the
Oakdale Mob, including appellant, to protect themselves against rival gang
members.

Broberg’s
hearsay testimony about the incident on March 17, 2010, however, along with
much of his other testimony about appellant’s connections with the Oakdale Mob,
was admitted only as part of the basis for Broberg’s opinions, and not for its
truth. Thus, although the jury was
entitled to hear this testimony as part of the basis for Broberg’s opinions, it
was not entitled to draw factual inferences based on the assumption that
Broberg’s description of the incident was substantively true. (See generally People v. Hill (2011) 191 Cal.App.4th 1104, 1127-1137; see also >Gardeley, supra, 14 Cal.4th 605 [expert opinion testimony about the practices,
culture, and habits of gangs is admissible in prosecutions under
section 186.22].)

Thus, the
question before us is whether Broberg’s opinion testimony regarding the
gang-relatedhref="#_ftn13" name="_ftnref13"
title="">[13]
nature of appellant’s gun possession, as well as appellant’s intent in
possessing the gun, is sufficient, standing alone, to support the jury’s true
finding as to the gang enhancement. “We
review claims of insufficient evidence by examining the entire record in the
light most favorable to the judgment below.
[Citation.] We review to
determine if substantial evidence exists for a reasonable trier of fact to find
the counts against the minor true beyond a reasonable doubt. [Citation.]
Substantial evidence must be reasonable, credible, and of solid
value. [Citation.] We also presume the existence of every fact
the [trier of fact] could reasonably deduce from the evidence in support of its
judgment. [Citation.]” (In re
Frank S.
(2006) 141 Cal.App.4th 1192, 1196 (Frank S.).)

In the
present case, the record includes substantial evidence that appellant possessed
the gun while congregating with a group of young men, several of whom were
members or affiliates of the Oakdale Mob, within the Oakdale Mob’s
territory. This evidence, taken together
with Broberg’s opinion, is sufficient to sustain a finding that appellant’s gun
possession occurred, at a minimum, “in association with” the Oakdale Mob. (See, e.g., People v. Ochoa (2009) 179 Cal.App.4th 650, 661, fn. 7 [fact
that defendant had fellow gang member in stolen vehicle with him would support
finding that defendant acted in association with gang].)

In this
regard, Frank S., >supra, 141 Cal.App.4th 1192, on which
appellant relies, is distinguishable, because in that case, the minor was >alone, and not in gang territory, when he was stopped by police and found to
be in possession of a knife. (See >id. at pp. 1195, 1199.) Thus, in the present case, the prosecution’s
evidence regarding the gang-related nature of appellant’s possession of the gun
did not suffer from the vice, condemned in Frank
S.
, of being “based solely upon [appellant’s] criminal history and gang
affiliations.” (Id. at p. 1192.)

>Frank S., supra, 141 Cal.App.4th 1192, also addressed the issue of the
sufficiency of expert testimony to prove the intent element of the gang enhancement statute. In that case, the court held that evidence of
gang “membership alone does not prove
a specific intent . . . to promote, further, or assist in criminal
conduct by gang members. [Citation.]” (Id.
at p. 1199, italics added.) Subsequently,
however, our Supreme Court has clarified that “ ‘[e]xpert opinion that
particular criminal conduct benefited a gang’ is not only permissible but >can be sufficient to support [a] gang
enhancement.” (People v. Vang
(2011) 52 Cal.4th 1038, 1048, italics added, quoting People v. Albillar (2010) 51 Cal.4th 47, 63.)

In any
event, the present case is distinguishable from Frank S., supra, 141
Cal.App.4th 1192, on the issue of intent.
In >Frank S., no evidence other than the
gang expert’s opinion supported the finding that the minor possessed the knife
with the requisite specific intent; or, as the court put it, “nothing besides
weak inferences and hypotheticals show[ed] the minor had a gang-related purpose
for the knife.” (Id. at p. 1199.) In fact, the minor himself had told the
officers at the time of his arrest that “he had been jumped two days prior and
needed the knife for protection.” (>Ibid.)
Here, unlike in Frank S.,
appellant offered no innocent explanation for his possession of the gun, such
as that it was for personal self-defense, or that he had found it and was going
to turn it in.

Moreover,
here, unlike in Frank S., >supra, 141 Cal.App.4th 1192, there was
substantial evidence independent of the gang expert’s testimony that corroborated
the expert’s opinion regarding appellant’s intent. First, the forensic serologist testified that
the gun carried DNA from more than one person.
True, none of that DNA matched that of the other young men who were
arrested along with appellant (i.e., Whitfield, Tukes, and Lowe). However, DNA samples were not taken from any
of appellant’s other companions, and it would not have been unreasonable for
the jury to infer that the DNA came from one or more Oakdale Mob members other
than those the police happened to arrest along with appellant. This inference, coupled with Broberg’s
opinion testimony that gang members shared guns, is sufficient to support a
finding that appellant had already shared the gun with other members of the
Oakdale Mob, and thus possessed it with the intent to benefit or further the
gang’s activities.

Second,
appellant was involved in a number of prior incidents involving guns that also
involved members of the Oakdale Mob. One
such incident was in December 2009, when
appellant, Brewer, Benjamin, and McGhee were detained together following a
shooting at Skyline College, and a gun was found. Both Brewer and Benjamin were convicted of
weapons charges arising out of that incident, and there was evidence their
crimes were gang-related, as Brewer’s sentence included gang conditions, and
Benjamin pleaded guilty to a gang charge.
Thus, there was evidence independent of Broberg’s testimony that
appellant had previously associated with gang members at a time when they were
in possession of a gun.

Moreover,
there was a far more substantial basis for Broberg’s opinion regarding
appellant’s intent than was articulated by the gang expert in >Frank S., supra, 141 Cal.App.4th 1192.
In addition to the Skyline College incident, Broberg based his opinion
on a number of specific prior incidents in which appellant was seen in the
company of Oakdale Mob members, and firearms or ammunition were involved. These prior incidents included one on March
17, 2009, in which appellant was stopped while riding in a car in the company
of two other gang members, and was found to be suffering from a href="http://www.sandiegohealthdirectory.com/">gunshot wound that he was
reluctant to reveal to the police. On
September 25, 2009, appellant joined Oakdale Mob member Benjamin in threatening
to shoot security guards stationed near the Oakdale Mob’s territory if the
guards kept “messing with” Oakdale Mob members.
On April 17, 2010, police received a report that someone had been seen
brandishing a gun from a car in which appellant and an Oakdale Mob member were
riding. On April 24, 2010, while
appellant was detained in a location within the Oakdale Mob territory along
with several Oakdale Mob members, a cache of bullets was found nearby. Regarding this incident, Broberg explained
that gang members often conceal weapons and ammunition within their territory,
to be picked up when needed by members of the gang.

Given the
extensive factual basis described by Broberg for his opinion about appellant’s
intent in possessing the gun, together with Broberg’s opinion about the violent
nature of the Oakdale Mob, we conclude that Broberg’s opinion constituted
sufficient evidence to support the jury’s finding that appellant’s possession
of a gun, while in the company of some other gang members, was with the
specific intent to benefit or further the gang’s activities. Accordingly, if count 3 is punished as a
felony, substantial evidence supports the imposition of an additional term under
the gang enhancement statute.

C.
Sufficiency of Evidence to Support Count 6

The statute
under which appellant was charged and convicted in count 6 was Health and
Safety Code section 11370.1 (section 11370.1). Section 11370.1 provides that a person
who “unlawfully possesses any amount of . . . a substance containing
methamphetamine . . . while armed with a loaded, operable firearm is
guilty of a felony . . . .”
It is clear on the face of the statute that possession of “a substance
containing methamphetamine” (or one of the other listed drugshref="#_ftn14" name="_ftnref14" title="">[14])
is an element of the crime.

In the
present case, the prosecution presented uncontroverted evidence, in the form of
expert testimony, that the pill found in appellant’s pocket contained a
chemical that the expert identified (using its scientific name) as MDMA. MDMA is not methamphetamine, however, nor is
it any of the other controlled substances expressly listed in
section 11370.1. Thus, appellant
now argues that in order to prove all of the elements of the offense, the
prosecution had to present additional evidence: either that the pill was “a
substance containing methamphetamine,” or that the pill was a substance
containing an analog of methamphetamine.href="#_ftn15" name="_ftnref15" title="">[15] As appellant points out, the prosecution did
not ask its expert to testify to either of these propositions. Thus, there is no direct evidence in the
record that MDMA contains methamphetamine, or is an analog of methamphetamine,
or contains an analog of methamphetamine.
Appellant contends that as a result of the prosecution’s failure to
present such evidence, there is insufficient evidence to establish one element
of the crime charged in count 6.

The
California Supreme Court has pending before it the issue whether a defendant
can properly be convicted of an offense involving a controlled substance if the
substance at issue is MDMA or Ecstasy, and there is neither expert testimony
nor a stipulation that MDMA/Ecstasy is a controlled substance or an analog of a
controlled substance. (>People v. Davis, review granted Jan. 11,
2012, S198434; see also People v. Le,
review granted Dec. 21, 2011, S197493.)
Pending guidance from the Supreme Court, we must reach our own
conclusion on the issue, based on the statutory language and general principles
of criminal law.

In a
criminal case, “the ‘Fifth Amendment right to due process and Sixth Amendment href="http://www.mcmillanlaw.com/">right to jury trial . . .
require the prosecution to prove to a jury beyond a reasonable doubt every
element of a crime.’ [Citations.]” (People
v. Cole
(2004) 33 Cal.4th 1158, 1208.)
For example, in People v. Wallace
(2009) 176 Cal.App.4th 1088, the defendant, who was required to register as a
sex offender, was charged with failing to register a new address within five
days after moving, and failing to register within five days after his
birthday. Our colleagues in Division
Three of this court held that under the applicable statutes, continued
residency somewhere within California was an element of these offenses. Because the prosecution had not introduced
any evidence that the defendant still resided somewhere in California on the
relevant dates, the court reversed the defendant’s convictions. (Id.
at pp. 1100-1107.)

Similarly,
in U.S. v. Zepeda (9th Cir. 2013) 705
F.3d 1052 (Zepeda), the prosecution
was required, in order to establish a basis for federal jurisdiction, to prove
that the defendant was a member of a federally recognized Indian tribe. The prosecution proved that the defendant was
an enrolled member of an Indian tribe, but neglected to prove that the tribe in
question was federally recognized. The
Ninth Circuit reversed the conviction on the ground of insufficient evidence,
even though the tribe could easily have been shown to be federally recognized,
because the prosecution failed to make such a showing on the record at
trial. (Id. at pp. 1060-1065.)

As a
corollary to the requirement that the prosecution prove all elements of a crime
beyond a reasonable doubt, “an instruction lightening the prosecution’s burden
of proof violates the accused’s right to a jury trial. [Citations.]”
(People v. Hunter (2011) 202
Cal.App.4th 261, 276.) For example, in >People v. Hunter, supra, the defendant was charged with robbing several victims,
using an object that appeared to be a gun.
The jury was instructed, at the prosecution’s request, that the victims’
inability to testify positively that the object was a genuine gun, as opposed
to a model or toy, did not create a reasonable doubt regarding the defendant’s
guilt. The court held that this
instruction impermissibly lightened the prosecution’s burden to prove beyond
reasonable doubt that the defendant had used a gun. However, the court held the error was
harmless, given the plethora of uncontroverted
evidence
that the gun was real.

Here, the
instructions did not inform the jury that in order to convict appellant on
count 6, it had to find that MDMA is a substance containing
methamphetamine. Rather, the jury was
instructed to convict appellant on count 6 if it found (along with the other
elements of the crime) that appellant possessed “3,4 MDMA
Methylenedioxymethamphetamine (Ecstasy), a controlled substance” while armed
with the gun. In effect, the instruction
lightened the prosecution’s burden of proof, or partially directed a verdict,
by requiring the jury to assume that
MDMA is a substance containing methamphetamine, instead of requiring the jury
to make a finding to that
effect. (Cf. People v. Flood (1998) 18 Cal.4th 470, 491-492 [jury instructions
relieving the prosecution of the burden of proving beyond a reasonable doubt
each element of the charged offense violate the defendant’s due process rights
under the federal Constitution].)
Moreover, because the error in the instruction was of constitutional
dimension, appellant’s argument was not forfeited by the failure of appellant’s
trial counsel to object. (See >People v. Hillhouse (2002) 27 Cal.4th
469, 503; People v. Flood, >supra, 18 Cal.4th at p. 482,
fn. 7.)

On appeal,
respondent attempts to supply evidence of the missing element of the crime, and
cure the defect in the jury instruction, by asserting that MDMA is in fact a
substance containing methamphetamine. In
support of this proposition, respondent relies on chemical and toxicology
treatises and a medical dictionary, as well as the presence of the term
methamphetamine in the scientific name of MDMA.
Respondent appears to contend that these references constitute adequate
proof that MDMA contains methamphetamine, or is or contains an analog of
methamphetamine.

Respondent does
not contend, however, that there is any evidence in the record supporting this
fact. Respondent also does not explain
why, if the proposition was true, the prosecution did not simply elicit
testimony to that effect from its expert.
(See Evid. Code, § 412 [“If weaker and less satisfactory evidence
is offered when it was within the power of the party to produce stronger and
more satisfactory evidence, the evidence offered should be viewed with
distrust”]; Vallbona v. Springer
(1996) 43 Cal.App.4th 1525, 1537 [in assessing defendant’s net worth for
punitive damages purposes, jury could properly view defendant’s evidence of his
liabilities with distrust, since it was within his power to produce stronger
and more satisfactory evidence].)

In any
event, we cannot affirm appellant’s conviction based on the sources cited in
respondent’s brief on appeal. These
sources were not presented to the trial court or to the jury, nor has
respondent properly requested that we take judicial notice of them. (See Cal. Rules of Court,
rule 8.809.) And even if we were to
overlook these procedural defaults, we cannot affirm appellant’s conviction
based on our own judicial notice of facts the prosecution failed to prove at
trial. (See Zepeda, supra, 705 F.3d
at pp. 1064-1065 [“ ‘[f]or a court . . . to take judicial
notice of an adjudicative fact after a jury’s discharge in a criminal case
would cast the court in the role of a fact-finder and violate [the] defendant’s
Sixth Amendment right to trial by jury’ . . . ”].)

Moreover,
unlike the fact involved in Zepeda,
it is by no means clear that the fact at issue here is actually a proper
subject of judicial notice. Evidence
Code section 451, subdivision (f), requires us to take judicial
notice of “[f]acts and propositions of generalized knowledge that are so
universally known that they cannot reasonably be the subject of dispute.” Evidence Code section 452,
subdivision (h), permits us to take judicial notice of “[f]acts and propositions
that are not reasonably subject to dispute and are capable of immediate and
accurate determination by resort to sources of reasonably indisputable
accuracy.” Neither of these statutes,
nor any other doctrine, permits us to take judicial notice, for the first time
on appeal, of a fact that is neither a matter of generalized knowledge nor
readily verifiable.href="#_ftn16"
name="_ftnref16" title="">[16]

Nonetheless,
under the circumstances of this case, we conclude the error was harmless beyond
a reasonable doubt. (See >People v. Flood, supra, 18 Cal.4th at pp. 502-503 [instructional error that
omits element of offense or partially directs verdict is not reversible if
harmless beyond a reasonable doubt]; accord, People v. Mil (2012) 53 Cal.4th 400, 409.) Appellant’s position is essentially that the
trial court should have instructed the jury that in order to convict appellant
on count 6, it had to find that MDMA is a substance containing either
methamphetamine or an analog of methamphetamine. Appellant never disputed the truth of this
proposition at trial, and there was no evidence tending to disprove it. (Cf. People
v. Flood
, supra, 18 Cal.4th at
pp 504-507.) Thus, if a proper
instruction had been given, we have no doubt the jury would have drawn the
logical and reasonable inference, based on the chemical name of MDMA, that it
is a substance containing methamphetamine.
Accordingly, neither the absence
of any direct evidence of that fact, nor the error in the jury instruction,
requires the reversal of appellant’s conviction on count 6.

D.
Reduction of Court Security Fee

Appellant
argues that even if his convictions are sustained on appeal, the court security
fee imposed by the trial court pursuant to section 1465.8,
subdivision (a)(1), must be reduced from a total of $160 to $120, due to
the trial court’s having vacated appellant’s conviction on count 1, leaving
only three convictions (on counts 2, 3, and 6).
Respondent concedes the issue.
Upon resentencing, the trial court shall recalculate the court security
fee based on appellant’s remaining convictions.

disposition

Appellant’s
conviction of a felony on count 2 is REVERSED.
In all other respects, appellant’s convictions are AFFIRMED. The matter is remanded for further
proceedings consistent with this opinion, including: (1) a determination
whether appellant’s misdemeanor convictions on count 1 and/or count 2 can
be reinstated, and if so, whether either or both of the reinstated
conviction(s) should be stayed pursuant to section 654; (2) a
determination whether appellant’s conviction on count 3 will be treated as a
felony or as a misdemeanor for sentencing purposes, and (3) resentencing,
including recalculation of the applicable court security fee.















_________________________

RUVOLO,
P. J.





We concur:





_________________________

RIVERA, J.





_________________________

HUMES, J.







id=ftn1>

href="#_ftnref1" name="_ftn1" title=""> [1] All further references to statutes are to the
Penal Code unless otherwise noted.
Former section 12031 was repealed in 2010, operative January 1,
2012. (Stats. 2010, ch. 711, § 4;
see generally Nonsubstantive Reorganization of Deadly Weapon Statutes (June
2009) 38 Cal. Law Revision Com. Rep. 217.)
All further references to section 12031 and its subdivisions are to
the version of the statute that was in effect as of the date of appellant’s
arrest on May 28, 2010.

id=ftn2>

href="#_ftnref2" name="_ftn2" title=""> [2] Section 186.22, subdivision (a)
makes it a crime to “actively participate[] in any criminal street gang with
knowledge that its members engage in or have engaged in a pattern of criminal
gang activity, and . . . willfully promote[], further[], or assist[]
in any felonious criminal conduct by members of that
gang . . . .” We
will refer to this part of the statute as section 186.22(a), or the gang
participation statute.

id=ftn3>

href="#_ftnref3" name="_ftn3" title=""> [3] We will refer to section 12031,
subdivision (a)(2)(C) as section 12031(a)(2)(C), or the gang
participant gun possession statute.

id=ftn4>

href="#_ftnref4" name="_ftn4" title=""> [4] Section 186.22, subdivision (b)(1)(A)
provides for a sentence enhancement when a felony is “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. . . .” We
will refer to this subdivision of the statute as section 186.22(b), or the
gang enhancement statute.

id=ftn5>

href="#_ftnref5" name="_ftn5" title=""> [5] Former section 12021 was repealed in
2010, operative January 1, 2012; while still in effect, it was amended
effective April 4, 2011. (Stats. 2010,
ch. 711, § 4; Stats. 2011, ch. 15, § 501.5.) All further references to section 12021
and its subdivisions are to the version of the statute that was in effect as of
the date of appellant’s arrest on May 28, 2010.
We will refer to section 12021, subdivision (c)(1) as
section 12021(c)(1).

id=ftn6>

href="#_ftnref6" name="_ftn6" title=""> [6] Records of the criminal proceedings arising
from the foregoing three incidents were introduced as evidence of “predicate
crimes,” that is, the crimes that may be relied upon, under
section 186.22, subdivisions (f) and (j), to establish that a group
of people is a criminal street gang within the meaning of section 186.22.

id=ftn7>

href="#_ftnref7" name="_ftn7" title=""> [7] Broberg’s testimony about these police
reports was admitted as part of the basis for his opinion, and not for the
truth of the statements made in the reports.

id=ftn8>

href="#_ftnref8" name="_ftn8" title=""> [8] We note that the last name “Williams” is also
spelled “William” in the record provided to us, with no explanation given
concerning the spelling discrepancy.
Since it appears that all references in the record are to the same
person, and for clarity, we have adopted usage of the spelling “Williams” in
this opinion.

id=ftn9>

href="#_ftnref9" name="_ftn9" title=""> [9] As in footnote 8 above, we note another
spelling discrepancy in that the last name “Lieu” is also spelled “Liu” in the
record provided to us. For the same
reasons as those given in footnote 8, we have adopted usage of the spelling
“Lieu” in this opinion.

id=ftn10>

href="#_ftnref10" name="_ftn10" title



Description
While conducting a routine patrol in territory claimed by a gang, police officers saw a group of people, including appellant, standing on a basketball court. When someone shouted a warning about the presence of the police, the group scattered and ran. The police pursued them, and one of the officers saw appellant throw a gun into the street. After appellant was arrested, a broken Ecstasy pill was found in his pocket.
Appellant was convicted of a felony count of carrying a loaded firearm in public while an active participant in a street gang, with an enhancement for committing the crime for the benefit of a gang and with the intent to assist, further, or promote criminal conduct by gang members. He was also convicted of possessing a gun after being convicted of a misdemeanor (also with a gang enhancement), and of possessing a controlled substance while armed with a gun. We conclude that the prosecution failed to prove that appellant actively participated in a street gang while carrying the gun. We therefore reverse the felony gun possession conviction, and remand for further proceedings.
Rating
0/5 based on 0 votes.

    Home | About Us | Privacy | Subscribe
    © 2025 Fearnotlaw.com The california lawyer directory

  Copyright © 2025 Result Oriented Marketing, Inc.

attorney
scale