P. v. Dennis

Filed 10/28/09 P. v. Dennis CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa M. Chung, Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Zee Rodriguez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

Lemino Marquis Dennis appeals from the judgment entered following his convictions by jury on count 1 conspiracy to sell rock cocaine (Pen. Code, 182, subd. (a)(1)), count 2 sales and/or transportation of a controlled substance (Health & Saf. Code, 11352, subd. (a)), count 3 employment of a minor to sell or carry a narcotic (Health & Saf. Code, 11353, subd. (b)), count 4 possession of cocaine base for sale (Health & Saf. Code, 11351.5) with, as to each above offense, a finding that appellant committed the offense for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)), and count 5 dissuading a witness with force or threat of force (Pen. Code, 136.1, subd. (c)(1)) with a finding he committed that offense for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(4)(C)), and with findings that he suffered two prior felony narcotics convictions (Health & Saf. Code, 11370.2, subd. (a)) and two prior felony convictions for which he served separate prison terms (Pen. Code, 667.5, subd. (b)). The court sentenced appellant to prison for life with a minimum term of seven years, plus a determinate term of 22 years 4 months. We affirm the judgment.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on July 27, 2007, Audrey Thompson lived in apartment 40 at 44061 Beech in Lancaster. Appellant, who had nowhere else to live, had been living there for about two weeks although he was supposed to have been a guest for only a day. Thompson never had been appellants girlfriend.

Thompson became concerned because people who appeared to be under the influence of a controlled substance, and whom appellant said were his cousins or friends, were frequently visiting her apartment and congregating in front of it. On one occasion, Thompson saw appellant possessing rock cocaine in her apartment. Thompson told appellant that the drugs had to go. Appellant grabbed her by the throat and threatened to tell the apartment manager that the rock cocaine was hers. He also threatened to call his homeboys from his gang and tell them to bring a gun. Appellant said he was a member of the Main Street Crip gang. The apartment complex in which Thompson lived was located in an area in which gang and narcotics activities frequently occurred.

On July 27, 2007, Los Angeles County Sheriffs deputies conducted narcotics surveillance of a gated entrance to the apartment complex. The surveillance began at 5:00 p.m. and lasted a couple of hours. A group of five males (hereafter, the five), including appellant, were standing just inside the gate.[1] Except for occasions when different members of the group would come and go, the five remained at the gate. During the surveillance, the following occurred, including multiple apparent hand-to-hand drug sales.

Shortly after 5:00 p.m., a Ford pickup stopped outside the complex and the driver, Courtney Briggs, walked to the gate. Cornell G., a minor who was one of the five, opened the gate. Appellant contacted Briggs, left, and entered apartment 40. While appellant went to the apartment, three of the five stood towards the gate. Briggs and one of the five stood under a stairwell located a few feet from the gate. Appellant soon returned, appellant and Briggs exchanged items, and Briggs left in the Ford. A deputy later stopped the Ford and arrested Briggs for possessing cocaine base.

Within 10 minutes after Briggs left, Randy Henderson walked up to the gate. A person named Stowers, one of the five, opened the gate. Henderson momentarily spoke with the five, and then with Ronnie Terrell, one of the five. Terrell retrieved an item from his pocket and conducted a hand-to-hand transaction with Henderson. During the transaction, appellant was standing just inside the gate and perhaps two feet from Terrell and Henderson. The other three of the five were within a few feet of each other, and a deputy testified that, through most of the transaction, Cornell G. would stand closer to the gate watching out on the street.

The deputy also testified that Stowers and Cornell G. stood towards the gate while the remaining three stood a few feet back. However, the five were within a few feet of each other the entire time, and they would stand and talk when nothing else was happening. After Terrells transaction with Henderson, Henderson left. A deputy subsequently arrested Henderson for possessing cocaine base.

Shortly after the transaction with Henderson, an unidentified male drove up in a Toyota, exited, and approached the gate. One of the five opened the gate, and the unidentified male engaged in a hand-to-hand transaction with Terrell. After the transaction, the male left in his car.

Appellant later walked away from the five, entered a Kia that was parked on the street, and drove away. A few minutes later, when a marked patrol car which was not part of the surveillance operation drove within view of the remaining four, they all turned and fled into the complex.

A few minutes later, appellant returned, parked the Kia, and exited very quickly. Appellant had an object in his hand, and he put his hand in the front of his pants while exiting the Kia. Appellant ran to a second gate and, as he did so, he placed something inside the crotch area of his pants. He then went directly into apartment 40. One or two minutes later, appellant left the apartment and returned to the original gate. Within a few moments, the other four males joined him.

About 6:20 p.m., a male pedestrian approached and Stowers permitted him to enter through the gate. The male engaged in a hand-to-hand transaction with Cornell G., then left. When the transaction occurred, appellant and the other four were standing within a few feet of the male and Cornell G.

Shortly thereafter, two additional males were permitted to enter the gate. Those two, plus the five, spoke to each other for about a minute. Stowers then retrieved an item from the ground at the staircase and put the item in the crotch of his pants. Stowers and the two males later left. Shortly thereafter, a deputy detained Stowers and recovered a controlled substance which fell from Stowers during a search.

A short time later, appellant drove the Kia towards Stowers, and deputies contacted appellant. Appellant denied to deputies that appellant was selling narcotics and denied being in the area of 44063 Beech. After a deputy told appellant that the deputy was going to take appellant to apartment 40, appellant changed his story and said that he was only there with his girlfriend.

During appellants detention, the three remaining males stayed at the gate and engaged in no more transactions. Perhaps five to ten minutes after appellant had left the gate, deputies drove there. The remaining three males at the gate fled with deputies in pursuit. Two of the three, i.e., Terrell and Cornell G., fled together and discarded objects as they fled. Deputies detained Terrell and Cornell G. During the entire surveillance, only appellant entered apartment 40.

Deputies searched apartment 40 and recovered drugs and about $300 in various denominations. Thompson told deputies that the money belonged to appellant. The drugs recovered from the apartment, as well as the drugs discarded by Terrell and Cornell G. during their joint flight, amounted to about 29 grams of solid substances containing cocaine base.

A deputy who was a narcotics expert opined at trial that the above cocaine base was possessed for sale. The opinion was based in part on the transactions conducted by the five at the gate, their flight when deputies approached, and the value of the cocaine base, which was about $2,500. The deputy also opined that the five were working together to sell cocaine base. This opinion was based on the facts that different members of the group would come and go, but they always came back together and stood together as a group. Moreover, different members of the group would perform different tasks. Further, when deputies passed by, the members would run from the gate, and when appellant returned, they returned as a group. The deputy testified, [e]verything they did seemed to be working together.

A deputy who was a gang expert testified that appellant was affiliated with the Main Street Crip gang, and the activities of the gang included drug sales and witness intimidation. Each of the five was a member of a different Crip gang. The location of the instant drug sales was a high narcotics area. The drug sales conducted by the five were conducted for the benefit of the gang, there was an obvious agreement to sell narcotics together, and the proceeds funded gang activities. A large group of persons selling narcotics in front of a location created an atmosphere of fear in the community. Gangs increasingly used minors to sell narcotics because juvenile punishment was less harsh than adult punishment. Appellant provided no defense evidence.

CONTENTION

Appellant claims there is insufficient evidence to support his conviction on count 3.

DISCUSSION

Appellant claims there is insufficient evidence to support his conviction on count 3, which alleged a violation of Health and Safety Code section 11353, subdivision (b). That subdivision provides, in relevant part, Every person 18 years of age or over, . . . who hires, employs, or uses a minor to unlawfully transport, carry, sell, give away, prepare for sale, or peddle any such controlled substance, . . . shall be punished by imprisonment in the state prison[.] Appellant argues there was insufficient evidence of a violation of this subdivision because, although the evidence conclusively demonstrates that the five were selling drugs at the location, Cornell G. was acting as a free agent with the result that appellant neither hire[d], employ[ed], nor use[d] Cornell G. within the meaning of the subdivision. We reject appellants claim.

There was substantial evidence, and we accept appellants concession, that the five, including appellant and Cornell G., were selling drugs from the same location, i.e., from the area of the gate. There was also substantial evidence as follows. Except when a member of the five temporarily left the gate, the five, including appellant and Cornell G., were close together. Cocaine base was recovered from the apartment and, during the sales activities, only appellant entered apartment 40 and returned to the group. Appellant later left in the Kia, returned, and appeared to be concealing something as he quickly entered the apartment. The jury reasonably could have concluded that the five were selling narcotics derived from a common source, i.e., the narcotics inside the apartment and provided by appellant. Appellant cites no evidence that Cornell G. entered the apartment.

Group participation in the sales permitted group monitoring of the area, increasing the chances of avoiding detection and apprehension; accordingly, each of the five had a profit motive to operate as a group. Henderson spoke to the five. The five conversed with each other when nothing was happening. When the five became aware that police were nearby, the five fled together, and they later returned together. The apprehension of one or more of the five increased the chances that the others would eventually be identified and apprehended. This provided motivation for concerted action. On one occasion, Cornell G. acted as a lookout for the five, standing closer to the gate than others.

Moreover, once Stowers and appellant were detained, the remaining three ceased selling narcotics, evidencing that the previous sales efforts had been coordinated. When a deputy later approached the three, they fled, and two, i.e., Cornell G. and Terrell, fled together, discarding narcotics. A narcotics expert testified that, during the transactions, different members of the group would perform different tasks, they would leave but return as a group, and, [e]verything they did seemed to be working together.

A gang expert testified that appellant was a member of the Main Street Crip gang, and the activities of the gang included drug sales and witness intimidation. Each of the five were members of cliques of the Crip gang. The location where the instant sales occurred was a high narcotics area used by Crip gangs to conduct drug transactions. The narcotics sales of the five were conducted for the benefit of the gang, there was an obvious agreement to sell narcotics together, and the proceeds funded gang activities.

The number of gang members created an atmosphere of fear to intimidate the community, and gangs increasingly used minors to sell narcotics (thereby exposing the minors to the dangers of narcotics trafficking) because juvenile punishment was less harsh than adult punishment. There is no dispute as to the sufficiency of the evidence supporting count 1 that appellant conspired to sell rock cocaine. Nor has appellant properly disputed the sufficiency of the evidence supporting the criminal street gang findings.[2]

We conclude there was substantial evidence that the five, including appellant, were not only selling cocaine base but were engaged in a concerted effort among themselves to do so, and that each of the five was employing and using the other accordingly. We also therefore conclude that there was sufficient evidence that appellant committed the offense of which the jury convicted him on count 3, including sufficient evidence that appellant was a person who, within the meaning of Health and Safety Code section 11353, subdivision (b), hire[d], employ[ed], or use[d] Cornell G., a minor, with the requisite intent. (Cf. People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Duarte (2007) 147 Cal.App.4th 1231, 1236-1238.)[3]The jury was not obligated to believe that Cornell G. was selling drugs as a free agent or independent of appellant and the others in the group.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

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[1] Unless otherwise indicated, subsequent references to the gate are references to this gate.

[2] See footnote 3, post. Even if appellant properly had disputed the sufficiency of the evidence supporting the criminal street gang findings, we would have rejected appellants sufficiency challenge as to count 3.

[3] Appellants sole contention challenged the sufficiency of the evidence supporting his conviction on count 3. However, under the last subheading in his argument in his opening brief, he asserts, As the evidence was insufficient to support the finding with respect to the gang enhancement on counts two, five, and six, the true finding and imposition of sentence thereon violates appellants right to due process under the Fourteenth Amendment to the United States Constitution. (Mikes v. Borg (1991) 947 F.2d 353 [Mikes].) There was no count 6, and the trial court in the present case concluded Penal Code section 654 applied to count 2. In any event, appellant forfeited the issue raised by his assertion since it is perfunctory, fails to explain why Mikes is pertinent, and is not stated under a separate heading. (Cf. People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4; People v. Callegri (1984) 154 Cal.App.3d 856, 865; Cal. Rules of Court, rule 8.204(a)(1)(B).)