Bustamante
Filed 4/19/13 P. v. Bustamante CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DOMINIQUE BUSTAMANTE,
Defendant and Appellant.
F063189
(Super.
Ct. No. F10902134)
APPEAL from
a judgment of the Superior Court
of
County. Timothy A.
Kams, Judge.
Carol
Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Barton
Bowers and William K. Kim, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Appellant Dominique Bustamante was charged with two
counts of sale of methamphetamine (counts 1 & 3), two counts of active
participation in a criminal street gang (counts 2 & 5), and one count of
transporting methamphetamine for sale (count 4).
The jury found Bustamante guilty as
charged on all counts. He admitted a
prior prison term allegation. On August 22, 2011, Bustamante was
sentenced to a total term of six years eight months, with the terms for some
counts stayed and others to run concurrently.
Bustamante appealed, contending
there is insufficient evidence to support the Penal Code
186.22(a)) convictions in counts 2 and 5, the substantive offense of active
participation in a criminal street gang. Specifically, he contends there is
insufficient evidence establishing that the underlying drug offenses were
committed with another gang member. As
to count 2, the February 18, 2010,
drug sale, the People concede the issue and we accept the concession. As to count 5, we will conclude there is
sufficient evidence to support the verdict that the February 4, 2010, drug sale involved another gang
member. The count 2 conviction is
therefore reversed. In all other
respects, the judgment is affirmed.
Detective
Patricia Varela was working in an undercover capacity in a drug-buy operation
during February of 2010. The focus of
the operation was drug activity in the City of Selma,
with two Bulldog gang subsets, the Northside Selma Bulldogs and Barrio Rifa
Bulldogs being targeted. On February 4, 2010, around 5:30 p.m., Varela was in a car parked in a
McDonald’s lot. She was alone in the
car, but monitored by wire and sight.
Varela
placed a telephone call to a woman named Leticia Orozco and asked Orozco to
sell her some methamphetamine. A few
minutes later, Orozco called Varela back and stated she was in the parking
lot. Varela described her car to Orozco
and a gray car pulled up next to the detective.
A man, Bustamante, was driving the car, with Orozco in the front
passenger seat. The detective walked
over to the passenger side of the gray car and Orozco rolled down the
window. Varela handed Orozco money;
Orozco handed Varela a plastic baggie containing .759 grams of methamphetamine.
On February 18, 2010, around 2:45 p.m., Varela again placed a call to
Orozco’s phone number. At this point in
time, Orozco was the target of the investigation. This time, however, a man answered. Varela explained she was trying to reach
Orozco in order to purchase some drugs.
Varela described her car and the McDonald’s location and asked the man
if he remembered her from the sale on February 4; he did. The man agreed to meet Varela at the same
location. Varela drove to the McDonald’s
lot. The detective was wearing a wire
that sent a live feed.
After
arriving at the McDonald’s lot, Varela placed a call to Orozco’s number and the
same man answered. Varela told him she
was in the parking lot and waiting for him; the man responded he was on his way
and driving a gray Chevy Lumina. Around
3:45 p.m., the man arrived in the car he had described and Varela walked over
to his car. The man, Bustamante,
insisted they go to a different location to weigh the drugs. Varela agreed and followed Bustamante to the
parking lot of the Paradise Café.
Bustamante
called Varela and asked if she would be more comfortable if a female delivered
the narcotics; Varela said that was fine.
About 15 to 20 minutes later, a woman approached Varela’s car and
climbed inside. Varela asked the woman
if she knew Orozco; the woman did not.
Varela asked if the woman knew the man driving the gray car; she said
she did and that his name was Dominique (Bustamante). The woman handed Varela a plastic baggie of
methamphetamine; the baggie had bulldog emblems on it.
The gray
car used on February 4 and the gray car used on February 18 were the same
car. Bustamante was the driver on both
dates.
At trial,
Sheriff’s Detective Dewayne Chatman testified as an expert on criminal street
gangs in Fresno County. Over the course
of his career, Chatman had numerous contacts with, and investigated multiple
crimes committed by, members of the Fresno Bulldogs, a subset of the Norteno
criminal street gang. Chatman testified
that the Bulldogs were a criminal street gang in Fresno County and one of their
primary activities was drug sales.
Chatman had
“hundreds†of contacts with Bulldog gang members and had spoken with many
Bulldog members about the gang in his role as a gang investigator. He also had participated in numerous
probation and parole searches and execution of search warrants against Bulldog
gang members. Social media accounts of
gang members, including Facebook, My Space, and websites, were monitored. Chatman also had conducted surveillance of
Bulldog gang members on multiple occasions and had information from the
Department of Corrections specific to the Bulldog gang.
In February of 2010, Chatman was
conducting an operation that was investigating street level suppliers of drugs
and specifically, sales of narcotics by members of the Fresno Bulldogs gang and
various subsets of that gang, primarily Selma Bulldogs. A wiretap was in place for about 60 days and
phone calls of multiple Bulldog gang members were monitored. During the course of that operation, Chatman
became familiar with Bustamante’s name.
It was suspected that Bustamante was a street level supplier of
drugs.
Chatman
opined that Bustamante was an active member and participant in the Fresno
Bulldogs criminal street gang.
Bustamante had admitted in jail classification questionnaire forms that
he was a member of the gang; he also had gang tattoos, including a Bulldog on
his chest. Chatman also was of the
opinion that the drug packaging from the February 18 sale was a form of
branding by the Fresno Bulldogs that identified the drugs as a Bulldogs gang
product.
Although Bustamante had tattoos
indicating he identified with the subset, Eastside Fresno Dog, and at other
times indicated self-identification with the McKenzie Street Dog, law
enforcement also identified him as an active participant in Barrio Selma Rifa
Bulldogs, in part, because he “work[ed] in concert†with another person who was
a member of that subset, namely Orozco.
Initial investigations identified Bustamante as an associate member of
Barrio Selma Rifa or Selma Bulldogs, both subsets of the Fresno Bulldogs.
Chatman testified that
identification of gang members was made using a ten-point criteria. Some of the criteria used included
self-identification, jail classification, tattoos, reliable sources such as
probation and parole files or officers, police contact, writings including
graffiti, and conversations including telephone calls. Chatman stated that Orozco was a Barrio Selma
Rifa Bulldogs member, a subset of the Fresno Bulldogs, based upon “police
reports.â€
The jury found Bustamante guilty as
charged on all counts. He admitted the
prior prison term allegation.
I.
SUFFICIENCY OF THE EVIDENCE FOR GANG OFFENSE
Bustamante contends there is insufficient
evidence to support the section 186.22(a) convictions for the substantive
offense of active participation in a criminal street gang. Specifically, that there is insufficient
evidence establishing that the underlying drug offenses were committed with
another gang member.
of Review
When assessing a challenge to the
sufficiency of the evidence, we examine the entire record in the light most
favorable to the judgment below to determine whether it contains substantial
evidence from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. (
578.) “The standard is the same,
regardless of whether the prosecution relies mainly on direct or
(People v. Vazquez (2009) 178
Cal.App.4th 347, 352 (Vazquez).)
“‘Before a judgment of conviction
can be set aside for insufficiency of the evidence to support the trier of
fact’s verdict, it must clearly appear that upon no hypothesis whatever is
there sufficient evidence to support it.’
[Citation.]†(
1236, 1245.) Generally, the testimony of
a single witness is sufficient to prove a disputed fact unless the testimony is
inherently improbable or physically impossible.
(People v. Young (2005) 34
Cal.4th 1149, 1181; People v. Scott
(1978) 21 Cal.3d 284, 296.)
The trier of fact makes credibility
determinations and resolves factual disputes.
(People v. Estrella (1995) 31
Cal.App.4th 716, 724-725 (Estrella).) We will not substitute our evaluation of a
witness’s credibility for that of the fact finder. (Vazquez,
supra, 178 Cal.App.4th at p. 352.)
In conducting a review for sufficiency of the evidence, we presume in
support of the judgment the existence of every fact the trier of fact
reasonably could deduce from the evidence.
(People v. Lee (2011) 51
Cal.4th 620, 632.)
Count 2
In People v. Rodriguez (2012) 55 Cal.4th 1125, 1132 (
held that a conviction under section 186.22(a), requires that the defendant
commit the underlying felony with at least one other gang member. There was no evidence that the woman
assisting Bustamante with the February 18 drug sale (the count 2 offense), was
a gang member. The People concede the
point. Therefore, we reverse the count 2
conviction.
5
The section
186.22(a) substantive gang offense is comprised of three elements: (1) active participation in a criminal street
gang; (2) knowledge that the gang’s members have engaged in a pattern of
criminal gang activity; and (3) the willful promotion, furtherance, or
assistance in any felonious criminal conduct by members of that gang. (People
v. Lamas (2007) 42 Cal.4th 516, 523.)
In Rodriguez, the California
Supreme Court clarified that in order to satisfy the third element, a defendant
must willfully advance, encourage, contribute to, or help members of his or her
gang commit felonious criminal conduct.
(Rodriguez, supra, 55 Cal.4th
at p. 1132.) “The plain meaning of
section 186.22(a) requires that felonious criminal conduct be committed by at
least two gang members, one of whom can include the defendant if he is a gang
member.†(Ibid.)
Here, only the
evidence to support the third element is at issue. Bustamante contends the evidence is
insufficient to establish that the count 5 offense was committed in conjunction
with another gang member because of a lack of evidence that Orozco was a gang
member. The evidence that Orozco was a
gang member consists of the expert opinion offered by Chatman. Bustamante contends the expert opinion is
insufficient.
Evidence
Code section 801 limits expert opinion testimony to an opinion that is “[b]ased
on matter ... perceived by or personally known to the witness or made known to
[the witness] at or before the hearing, whether or not admissible, that is of a
type that reasonably may be relied upon by an expert in forming an opinion upon
the subject to which [the expert] testimony relates ....†(Evid. Code, § 801, subd. (b).) Matter that ordinarily is inadmissible
properly may form the basis of an expert’s opinion. (People
v. Killebrew (2002) 103 Cal.App.4th 644, 653, citing People v. Gardeley (1996) 14
Cal.4th 605, 618-619.)
It is well settled that expert
testimony about gang culture, habits, and membership is the type of evidence a
jury may rely on to reach a verdict on a gang-related offense or a finding on a
gang allegation. (People v. Valdez (1997) 58 Cal.App.4th 494, 506 (
1192, 1196.) “[E]vidence of gang
membership is often relevant to, and admissible regarding, the charged
offense. Evidence of the defendant’s
gang affiliation--including evidence of the gang’s territory, membership,
signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the
like--can help prove identity, motive, modus operandi, specific intent, means
of applying force or fear, or other issues pertinent to guilt of the charged
crime. [Citations.]†(People
v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
In People v. Killebrew, supra, 103 Cal.App.4th at pages 656-657, this
court examined and identified the following topics upon which expert gang
testimony was properly received: (1) the size, composition or existence of a
gang; (2) gang turf or territory; (3) an individual defendant’s membership in,
or association with, a gang; (4) the primary activities of a specific gang; (5)
motivation for a particular crime, generally retaliation or intimidation; (6)
whether and how a crime was committed to benefit or promote a gang; (7)
rivalries between gangs; (8) gang-related tattoos, gang graffiti and hand
signs; and (9) gang colors or attire. As
we noted, the list was not exhaustive or an exclusive list of all gang topics for
which expert opinion may be admitted. (
In any event, courts have without
question permitted law enforcement officers to provide expert testimony
regarding gangs. (See, e.g.,
919; People v. Fudge (1994) 7 Cal.4th
1075, 1091; People v. Hawthorne
(1992) 4 Cal.4th 43, 52.) The record
reflects that over the course of his career, Chatman had numerous contacts
with, and investigated multiple crimes committed by, members of the Bulldog
gang and its various subsets. Chatman
had “hundreds†of contacts with Bulldog gang members and had spoken with many
Bulldog members about the gang. Law
enforcement had been monitoring and reporting on social media accounts of gang
members, including Facebook, My Space, and websites. Chatman also had conducted surveillance of
Bulldog gang members on multiple occasions and had information from the
Department of Corrections specific to the Bulldog gang. In 2010, Chatman was conducting an operation
that was investigating street level suppliers of drugs and specifically, sales
of narcotics by members of the Fresno Bulldog gang and various subsets of that
gang, primarily Selma Bulldogs. A
wiretap was in place for about 60 days and phone calls of multiple Bulldog gang
members were monitored.
All of this background and
information, specifically information from the 60-day investigation of the
Selma Bulldog subset, was available to and known by Chatman at the time he
offered his opinion that Orozco was a Selma Bulldog gang member. Females are known to be gang members. (See In
re Carleisha P. (2006) 144 Cal.App.4th 912, 916.)
To the extent Bustamante claims
Chatman’s expert opinion is unsupported because the two police reports
specifically referencing the February 4 and 18 drug buys do not identify Orozco
as a gang member, his claim lacks merit.
Chatman testified that both those incidents were part of the gang
operation being conducted. Chatman and
Varela were working the same narcotics sales operation by Bulldog gang members
and Varela had at one point targeted Orozco.
However, when Chatman states his
opinion about Orozco is “based off of the police reports,†it is defense
counsel who assumes the reports to
which Chatman refers are just the reports of the February 4 and 18 drug
buys. Defense counsel’s response to
Chatman’s testimony is, “Okay. And
assuming the police reports are true, whichever report it is you are looking
at, the two versions we found.†The
People objected to defense counsel’s remark and the objection was
sustained. Defense counsel did not ask
Chatman to elaborate further on the sources he used in forming his opinion of
Orozco. The jury reasonably could infer
that Chatman was referring to all the reports prepared by police detailing all
of the information and activity of the two-month operation investigating the
Selma Bulldogs.
Bustamante is correct in that an
expert may not testify to incompetent hearsay.
(People v. Killebrew, supra, 103
Cal.App.4th at p. 659.) Chatman,
however, did not testify to incompetent hearsay in the guise of stating a
reason for his opinion. Moreover,
inadmissible matter can, as we noted previously, form the basis of an expert’s
opinion. (Id. at p. 653, citing People
v. Gardeley, supra, 14 Cal.4th at pp. 618-619.)
Because an expert’s need to
consider extrajudicial matters and a jury’s need for information sufficient to
evaluate an expert opinion may conflict with a defendant’s interest in avoiding
substantive use of unreliable hearsay, disputes in this area must generally be
left to the sound judgment of the trial court.
(People v. Catlin (2001) 26
Cal.4th 81, 137.) Here, there was no
attempt to introduce the details of any inadmissible hearsay forming the basis
of Chatman’s opinion into evidence.
The cases cited by Bustamante for
the proposition that nonspecific hearsay obtained from reading a police report
is not competent evidence are inapposite to this case. In the three cases cited by Bustamante, gang
experts were attempting to cite non-specific details of police reports,
specifically inadmissible hearsay portions of those reports, in order to
establish the predicate offenses of a gang.
(In re I.M. (2005) 125
Cal.App.4th 1195, 1206-1207; In re
Nathaniel C. (1991) 228 Cal.App.3d 990, 1003-1004; In re Leland D. (1990) 223 Cal.App.3d 251, 259-260.)
An expert may
testify concerning the gang membership of particular individuals. (Valdez,
supra, 58 Cal.App.4th at p. 506.)
The jury was instructed that it was not required to accept as true an
expert’s opinion; it should evaluate the expert’s believability; and consider
the reasons given by the expert for the opinion. The jury also was instructed to disregard any
opinion it considered unsupported by the evidence.
We decline Bustamante’s invitation
to conclude, as a matter of law, that the testimony of one expert witness as to
the gang membership of a particular individual is insufficient evidence of gang
membership. The testimony of one witness
is sufficient to prove a fact. (
1181.) The trier of fact makes
credibility determinations and resolves factual disputes. (Estrella,
supra, 31 Cal.App.4th at pp. 724-725.)
An appellate court will not substitute its evaluation of a witness’s
credibility for that of the fact finder.
(Vazquez, supra, 178
Cal.App.4th at p. 352.)
II.
SECTION 654
Bustamante
argues in his opening brief that the term imposed on the count 2 offense, the
section 186.22 substantive gang offense, should have been stayed pursuant to
section 654. The People conceded in their
respondent’s brief the term imposed for count 2 should be stayed, pursuant to
the holding in People v. Mesa (2012)
54 Cal.4th 191, 197-198. In the
supplemental briefing, both Bustamante and the People concede the count 2
conviction must be reversed.
In light of
our conclusion that Rodriguez, supra, 55
Cal.4th at page 1125, requires reversal of the count 2 conviction, the
issue of application of section 654 is moot.
III.
SECTION 4019 -
EQUAL PROTECTION
Bustamante’s final contention on
appeal is that additional presentence credits should be awarded to him based
upon the amendments to section 4019, operative October 1, 2011. He contends failure to award the additional
credit constitutes a violation of equal protection principles. This court has previously addressed, and
rejected, the equal protection arguments raised here by Bustamante in our
decision in People v. Ellis (2012)
207 Cal.App.4th 1546 (Ellis).
Section
4019, subdivision (h) specifically states that the changes increasing credits
were to apply prospectively only. In
the Legislature “was to have the enhanced rate apply only to those defendants who committed their crimes on or after
October 1, 2011.†(Ellis, supra, 207 Cal.App.4th at pp. 1552-1553.) It is undisputed that Bustamante’s offenses
were committed well before this date.
“The
concept of equal protection recognizes that persons who are similarly situated
with respect to a law’s legitimate purposes must be treated equally.†(People
v. Brown (2012) 54 Cal.4th 314, 328.)
Contrary to Bustamante’s contention, the
amendments to section 4019 operative October 1, 2011, do not treat
similarly situated groups in a disparate manner. (Ellis,
supra, 207 Cal.App.4th at pp. 1551-1552.)
The
amendments to section 4019 address “‘future
conduct in a custodial setting by providing increased incentives for good
behavior.’†(Ellis, supra, 207 Cal.App.4th at p. 1551.) Prisoners serving time before and after the
effective date of a statute affecting conduct credits are not similarly
situated for purposes of equal protection analysis. (People
v. Brown, supra, 54 Cal.4th at pp. 329-330, disapproving
542.) The correctional purpose of a
statute that rewards behavior is not served by rewarding prisoners who served
time in custody prior to the effective date of the incentives because they
could not have modified their behavior in response to the incentives. (People
v. Brown, supra, at p. 329.)
Bustamante’s
offenses were committed well before the effective date of the amendment.
to October 1, 2011, are not similarly situated to those committing crimes on
and after October 1, 2011, for purposes of equal protection analysis pertaining
to conduct credits, we reject Bustamante’s contentions.
DISPOSITION
The count 2
conviction is reversed. In all other
respects, the judgment is affirmed.
The superior court shall prepare an amended abstract of
judgment and forward the same to the appropriate authorities.
_____________________
Franson, J.
WE CONCUR:
_____________________
Poochigian, Acting P.J.
_____________________
Detjen, J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless noted otherwise.
name="_ftn2" title="">[2] His
sentencing also occurred before the effective date for purposes of application
of section 1170, subdivision (h). (
p. 1553.)
