P. v. Garcia
Filed 6/26/12 P. v. Garcia CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOSE DANIEL GARCIA,
Defendant and
Appellant.
G044012
(Super. Ct.
No. 09CF2352)
O P I N I O
N
Appeal from a judgment of the Superior
Court of
County, Frank F. Fasel, Judge.
Affirmed in part, reversed in part, and remanded with directions.
Phillip
I. Bronson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Lise S. Jacobson and
Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Jose
Daniel Garcia of transporting a controlled
substance, heroin (Health & Saf. Code, § 11352, subd. (a)),
possession of a firearm by a convicted felon (Pen. Code, § 12021,
subd. (a)(1); all further undesignated statutory references are to this
code), armed possession of a controlled
substance (Health & Saf. Code, § 11370.1), and active
participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found Garcia committed the
offenses for the benefit of, in association with, or at the direction of a
criminal street gang (§ 186.22, subd. (b)). In a bifurcated proceeding after the verdict,
Garcia admitted prior conviction allegations including a strike under the “Three
Strikes” law (§§ 667, subds. (d), (e)(1); 1170.12, subds. (b),
(c)(1)), a prior serious felony (§ 667, subd. (a)(1)), and two prison
priors (§ 667.5, subd. (b)).
The trial court imposed a 16-year prison term, including a concurrent
sentence for active gang participation.
Garcia
contends the trial court erred in denying his pretrial motion to
and the gang allegations from the underlying charges against him, and he also
contends for the first time on appeal that admitting the gang evidence violated
Evidence Code section 352. He
challenges the sufficiency of the evidence to support the jury’s conclusion he
possessed heroin in a vehicle he occupied with a fellow gang member. He argues the trial court erred in admitting
expert testimony concerning the notion of a “gang gun” or, alternatively, he
argues his trial attorney rendered ineffective assistance of counsel by failing
to object to the testimony. He contests
the sufficiency of the evidence to support his conviction for active gang
participation because he claims his offenses were not gang related, and he
asserts the evidence does not support the gang enhancement allegations. Finally, he contends the trial court’s
imposition of sentence for his substantive gang crime violates
section 654.
Only
the last contention has merit under the Supreme Court’s recent decision in
therefore reverse that portion of the judgment with directions for the trial
court to correct Garcia’s sentence. We
affirm the judgment in all other respects.
I
FACTUAL
AND PROCEDURAL BACKGROUND
Responding
to a citizen report of a pickup truck driving erratically, City of Orange
Police Officer John Nisperos and his partner located
the vehicle traveling southbound on The City Drive near the outdoor mall known
as “The Block,” a popular teenage “hangout” and thus, as the Attorney General
observes, a good place to attempt to sell drugs. When the vehicle turned into The Block, the
officers activated their overhead lights to stop the truck, which pulled into a
parking stall.
As
Nisperos approached the vehicle to contact the driver, Victor Ureno, he looked
into the truck and noticed numerous hypodermic needles in the driver’s side
door pocket. The needles were filled
with a dark substance resembling heroin.
Ureno appeared to be under the influence of drugs or alcohol (a later
breath test proved negative for alcohol), and he lied that he had just left the
Carl’s Jr. restaurant in The Block complex, claiming he was driving across the
parking lot to “buy shoes” at the mall.
Garcia, who does not challenge on appeal that he and Ureno were fellow,
active “Eastside Anaheim” gang members, sat in the truck’s passenger seat. Ureno and Garcia had been contacted together
on previous occasions by gang investigators and, in an interview following
their arrest here, Ureno admitted Eastside’s activities included illegal
firearm possession and narcotics offenses.
The
officers searched the vehicle and recovered a large quantity of heroin and cash
in the pickup truck, including:
readily-saleable heroin doses in 13 syringes in the driver’s side door
compartment; another heroin-filled syringe in Garcia’s pocket; $5,000 in cash
in Ureno’s wallet; a 20-gram “giant rock” of heroin — suitable for at least 100
doses — in a bag behind the truck’s center console; and a gun hidden out of
view below the vehicle cupholders, with its handle pointing towards Garcia. The gun, a loaded .25-caliber Beretta
handgun, may have been accessible by Ureno given its center location under the
dashboard, but it was wedged behind a plastic piece of the dashboard. Its serial number had been scratched
off. Two extra magazines rested next to
the gun, and one included eight rounds of ammunition.
In
another bag near the heroin rock found behind the center console, the officers
found 100 new syringes and a spoon.
Garcia had a blade in his pocket and the syringe he carried contained
0.02 grams of heroin, a small dose suitable for a novice with a low tolerance
for the drug. The bag holding 100
syringes also contained numerous prescription pill bottles, including four with
Ureno’s name on them, while the names on the rest of the bottles had been
rubbed off or were unreadable. The
bottles were full of various pills. A
separate brown bag contained 40 rounds of .25-caliber ammunition. The police found Ureno’s cash-filled wallet
in the driver’s side door compartment, near the 13 syringes. Some of these syringes appeared used and
contained only heroin residue, while the others were full and ready for
use. Garcia admitted the syringe in his
pocket contained heroin, but he denied knowledge of any of the other contraband
in the vehicle, including the gun.
Detective
Jonathan Yepes testified as the prosecution’s gang expert. Yepes served as his gang unit’s chief contact
concerning the Eastside Anaheim gang, which he estimated numbered about
120 individuals, approximately a quarter of whom he had personally spoken
with over the years. Yepes explained
the importance of revenue for gangs not only to enrich themselves and their
members, but given the likely reality of serving prison time, to pay an entity
known as the Mexican Mafia for “protection” in prison. According to Yepes, the
Mexican Mafia operates as an “umbrella” gang protecting — presumably from other prison gangs —
members of “southside or surenos” Hispanic gangs, including Eastside Anaheim.
The group’s control is so far-reaching that state prisons are essentially “run
by the Mexican Mafia,” at least from the viewpoint of Hispanic gang
members. In exchange for protection,
subscribing gangs and their members must pay “taxes” to the Mexican Mafia on
revenue generated outside prison. Tax
payments also protect the gang and its members from Mexican Mafia itself. In other words, those who do not “pay any tax
or earn revenue [for] the Mexican Mafia . . . can be assaulted,”
ranging “anywhere from a beating to being murdered.”
Yepes
explained that “the easiest way for a gang member to earn money is by selling
narcotics,” and that from these sales “they are expected to share a portion of
[the proceeds] with their gang,” which in turn passes on a share to the Mexican
Mafia. Not only can an individual expect
prison repercussions for failure to pay Mafia dues, he can also face assault
“for not sharing” narcotics revenue with his gang. Yepes had explored this issue among his gang
contacts and found that if a gang member is “not bringing [in from narcotics
sales] any of the proceeds or any of the revenue to the gang,” his fellow
members “will go out and they will look for that guy and assault him
. . . to let him know . . . he has to share. That he is expected to share.”
Yepes
also explained the concept of a “gang gun.”
First, Yepes explained that unlike in the “normal, daily life” of
law-abiding citizens, in the gang subculture, “[t]he more fear and intimidation
that you are able to inflict upon other people, the more respect
. . . you get for yourself and . . . for your gang.” Accordingly, because of their capacity for
inflicting violent damage, guns are “the pinnacle tool . . . within a
criminal street gang[.]” Given the
difficulty of obtaining firearms and their importance in achieving gang
objectives like attaining “respect,” protecting gang turf and engaging in other
endeavors, including assaults and narcotics sales, a gun is a prized possession
within a gang. Consequently, safekeeping
a gang gun is a shared responsibility and the gun’s presence is therefore
generally disclosed to fellow gang members, including new ones. Only more established members, however, are
usually entrusted with a gun. The gun
“basically . . . belongs to all members of the gang,” but “is
typically passed around to those that are well-respected and that have shown
that they can keep the gun and protect the gun.
It is not given to just someone that’s brand-new into the gang, but they
are made aware of the gang gun.”
In
particular, a gang’s firearms are essential “to the sale and possession of
street narcotics” because “they . . . need some sort of weapon to
protect themselves from those that would — rival gangs who would — in street
terminology . . . jack or steal from them,” in other words “take
th[ose] narcotics from them.” As Yepes
explained, “[T]hey have to protect themselves.
And during the . . . sale process[] that engulfs
transportation, manufacturing, and packaging, . . . they need to be
able to protect themselves from rival gangs or rival distributors or [from
other] narcotics dealers . . . coming in and taking th[ose] narcotics
from them. So the best way is by having
a firearm.” Yepes noted this was
“especially true when they are transporting outside their gang territory,” as
here, “[b]ecause they are no longer within their safe haven, so they need
something to protect themselves.” Given
a gang’s criminal gun uses, a gang gun “tend[s] to be a gun that cannot be
traced,” and therefore will typically have its serial number removed.
Yepes
had specifically discussed the “gang gun” concept with at least 10 Eastside
Anaheim members on different occasions, and they overwhelmingly confirmed it
applied to Eastside. Garcia elicited
Yepes’s clarification that mutual possession and access to a firearm applied to
the relevant participants “only . . . if the[y] are gang members” and
“[i]t doesn’t apply to non-gang members[.]”
Garcia elicited the concession because he challenged below the
prosecution’s evidence he was an active Eastside gang member. But he does not contest on appeal the
sufficiency of the evidence to support the jury’s conclusion he was an active
Eastside member at the time of the offense here.
II
DISCUSSION
A. Severance, Bifurcation,
and Evidence Code Section 352
Garcia
argues the trial court erred by denying his pretrial motion to “bifurcate” the
substantive gang count (§ 186.22, subd. (a)) and the gang allegations
(§ 186.22, subd. (b)) from the drug and firearm charges. While we agree it is “confus[ing]” (
132 Cal.App.4th 938, 946, fn. 5), severance, not bifurcation, is the
proper term for disengaging substantive counts for separate trials. In effect, Garcia sought a separate trial of
the street terrorism charge. He also
sought bifurcation of the gang enhancement allegations from the underlying drug
and firearm charges. Bifurcation refers
to determining within the same trial a substantive count before submitting the
punishment allegation to the jury. (
Thus, although he did not refer expressly to severance, Garcia sought
both severance and bifurcation, and we address these contentions together
because they overlap.
Section 954 authorizes joinder of offenses for a single
trial if they are “connected together in their commission,” but the trial court
retains discretion to sever the counts “in the interests of justice
. . . .” Enhancements, by
definition, are inherently connected to the underlying offense, but as our
Supreme Court has recognized, the trial court’s broad discretion to control the
conduct of proceedings (§ 1044) furnishes the trial court with ample authority
to bifurcate an enhancement allegation (People
v. Hernandez (2004) 33 Cal.4th 1040, 1048-1049 (Hernandez)). The party
seeking severance of substantive counts or bifurcation of an enhancement has
the burden to “clearly establish that there is a substantial danger of
prejudice requiring that the charges be separately tried.” (People
v. Bean (1988) 46 Cal.3d 919, 938 (Bean);
accord, Hernandez, at p. 1051.)
The factors trial courts must consider in deciding whether
to sever charges are:
“(1) would the evidence of the crimes be cross-admissible in separate
trials; (2) are some of the charges unusually likely to inflame the jury
against the defendant; (3) has a weak case been joined with a strong case or
another weak case so that the total evidence on the joined charges may alter
the outcome of some or all of the charged offenses; and (4) is any one of the
charges a death penalty offense, or does joinder of the charges convert the
matter into a capital case.
[Citation.]” (
15 Cal.4th 1, 27-28.) We review the
trial court’s ruling for abuse of discretion, bearing in mind the defendant’s
burden to show prejudice from joinder. (Ibid.) “A determination that the evidence was cross-admissible
ordinarily dispels any inference of prejudice” from the joinder of substantive
counts. (Id. at p. 28.) The same
is true on the question of whether to bifurcate an enhancement allegation. (See Hernandez,
supra, 33 Cal.4th at
pp. 1049-1050 [“To the extent the evidence supporting the gang enhancement
would be admissible at a trial of guilt, any inference of prejudice would be
dispelled, and bifurcation would not be necessary”].) We evaluate a trial
court’s severance and bifurcation decisions based on the record at the time of
the ruling. (People v. Hardy (1992) 2 Cal.4th 86, 167; Hernandez, supra,
33 Cal.4th at pp. 1048-1050.)
Here, the trial court reasonably could conclude evidence of
Garcia’s active gang participation (§ 186.22, subd. (a)) and evidence relevant
to the gang enhancement (§ 186.22, subd. (b)) were also relevant and
cross-admissible concerning the underlying drug and firearm charges. Garcia asserts the gang evidence should have
been excluded because it was more prejudicial than probative (Evid. Code,
§ 352), but he did not raise that objection below, and the claim is
therefore forfeited. (Evid. Code,
§ 353; People v. Williams (1997)
16 Cal.4th 153, 206.)
In any event, as the
trial court observed in denying Garcia’s bifurcation motion, the anticipated
testimony concerning gang narcotics trafficking and the use of a gang gun tied
the offenses into the criminal street gang underworld. This evidence provided the causal connection
between the drug, firearm, and gang offenses necessary to obtain joinder. (See People
v. Saldana (1965) 233 Cal.App.2d 24, 29 [“causal connection or
‘transactional’ relationship” required to join offenses; accord,
106 Cal.App.3d 195, 203 [joinder of drug charges].) For example, the prosecution’s evidence that
Garcia and Ureno were both long-time Eastside gang members, and that they had
been contacted together in the past by gang investigators, tended to show they
could rely on their mutual gang bond (People
v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar)) and on gang norms like disclosure and mutual use of a
firearm to act in concert on a plan to traffic heroin from the truck.
Simply put, the gang
evidence tended to show a motive and means of execution for Garcia’s commission
of these offenses. “Gang evidence is
relevant and admissible when the very reason for the underlying crime, that is
the motive, is gang related.” (
172 Cal.App.4th 1148, 1167-1168; see also People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550
[“‘Because a motive is ordinarily the incentive for criminal behavior, its
probative value generally exceeds its prejudicial effect, and wide latitude is
permitted in admitting evidence of its existence’”]; accord,
23 Cal.App.4th 76, 81-82 [gang activity or membership admissible as to
motive, though damaging to defense].)
Consequently, the trial court did not err in denying bifurcation or
severance.
B.
Garcia challenges the
sufficiency of the evidence to support his conviction in count 3 for unlawful
possession of a controlled substance while armed with a loaded, operable
firearm. Health and Safety Code
section 11370.1 proscribes armed possession of heroin, cocaine,
methamphetamine, and similar substances.
Of the seven elements of the offense, Garcia takes issue only with the
evidence on the first three:
(1) the defendant possessed a controlled substance, (2) knew
of its presence, and (3) knew of the substance’s nature or character as an
illicit drug. (See CALCRIM No. 2303
[the remaining elements include:
(4) the substance was heroin, (5) in a usable amount, (6) the
firearm was loaded, operable, and available for offensive or defensive use, and
(7) the defendant knew he had the firearm available].)
Garcia’s challenge rests
on his claim he did not know of the large quantity of heroin in the truck. Not only does the standard of review pose an
insurmountable obstacle to Garcia’s challenge, the premise of his argument is
flawed. Specifically, he contests his
constructive possession of all the
heroin in the truck, but overlooks he physically possessed a heroin syringe in
his pocket and admitted he knew it contained heroin. That is sufficient. (People
v. Rubacalba (1993) 6 Cal.4th 62, 65-67 [“usable quantity”
requirement]; see also People v.
Palaschak (1995) 9 Cal.4th 1236, 1242 [essential element of controlled
substance possession includes “‘a quantity usable for consumption or
sale’”].) The prosecution’s drug expert,
Kirk Salmon, identified the 0.02 grams of heroin in Garcia’s syringe as a
usable amount, and Garcia did not and does not quarrel with that
testimony. There is no dispute he
possessed the syringe in his pocket or that he knew of its presence, and he
admitted the substance in the syringe was heroin. His challenge on the knowledge and possession
elements he now contests therefore fails.
Furthermore, the jury
reasonably could conclude Garcia possessed all the heroin he was transporting
with Ureno. We must view the evidence in
the light most favorable to the judgment below (People v. Elliot (2005) 37 Cal.4th 453, 466), and the test is
whether substantial evidence supports the verdict, not whether the evidence
proves guilt beyond a reasonable doubt (People
v. Crittenden (1994) 9 Cal.4th 83, 139). The reviewing court must affirm the judgment
unless “upon no hypothesis whatever is there sufficient substantial evidence to
support it. [Citation.]” (People
v. Redmond (1969) 71 Cal.2d 745, 755.)
The fact that circumstances may be reconciled with a contrary finding
does not warrant reversal of the judgment (Bean,
supra, 46 Cal.3d at pp. 932-933) and, accordingly, an appellant
“bears an enormous burden” challenging the sufficiency of the evidence (
325, 330).
Garcia relies on the
principle that proximity to contraband is insufficient, standing alone, to
establish possession. (See
195 Cal.App.4th 1410, 1417 [no constructive possession by gang member of
gang gun in motel room]; see also, e.g., In
re Elisabeth H. (1971) 20 Cal.App.3d 323, 330 [“mere presence” in
vehicle does not demonstrate possession of narcotics found in car].) Garcia relies on United States v. Soto (9th Cir. 1986) 779 F.2d 558 and similar
cases where, in Soto for example, the
defendant’s fingerprint on a shotgun in a van he recently entered as a
passenger supported only his conviction for possession of that weapon and not
other handguns within his reach in the back seat. (Id.
at pp. 559-560.)
But there was more here
than mere presence near contraband.
Unlike in Soto and similar
cases, Garcia’s possession of both a blade that could be used to scrape the
heroin rock into smaller doses and a heroin-filled syringe prepared in the same
manner as the other syringes in the truck connected him to a mobile
distribution plot for all the heroin. Of
course it is possible Garcia’s syringe was only for personal use, but the jury
was not required to view the evidence that way, and the standard of review is
to the contrary. Additionally, the
prosecutor established at trial Garcia’s active gang participation, and Ureno’s
admission Eastside’s activities included illegal narcotics offenses further
implicated Garcia beyond just one syringe.
Similarly, the gun in the dashboard at his feet with its handle facing
him also pointed to Garcia’s supporting role in a distribution plan, ready to
provide protection to Ureno if necessary.
The evidence therefore amply supported the conclusion Garcia jointly
possessed the mass of heroin with Ureno.
(People v. Williams (2009)
170 Cal.App.4th 587, 625 [“Possession may be physical or constructive, and
more than one person may possess the same contraband”].)
Garcia challenges the
validity of his alleged gun possession as evidence supporting his heroin
possession. But as noted, the record
supports the conclusion he possessed the heroin in the vehicle as part of a
plan to distribute it, whether or not he also possessed the gun. In any event, we now turn to Garcia’s gun
challenge.
C.
Gun Testimony
Garcia claims Yepes’s
testimony concerning the gang gun concept “should have been excluded” because
it amounted to expert determination of “an ultimate factual issue in the case,
i.e., [Garcia]’s knowledge of the Beretta handgun . . . .” According to Garcia, the testimony
constituted nothing more than Yepes directing “the jury how the gun expert
believed the case should be decided” concerning Garcia’s alleged possession of
the gun. Garcia did not, however, object
on that ground, which would have provided the trial court and the prosecutor an
opportunity to address the issue and “respond appropriately,” if
necessary. (People v. Partida (2005) 37 Cal.4th 428, 435 [trial court does
not err “in failing to conduct an analysis it was not asked to conduct”].) The claim is therefore forfeited. (Evid. Code, § 353.)
Garcia’s actual
objection lacked merit. He objected that
Yepes’s source for the gang gun concept, in addition to conversation with and
instruction in gang habits by other law enforcement personnel, included
discussions with gang members who confirmed the validity of the concept. Specifically, Garcia objected that Yepes’s
account of gang members vouching for the reality of gang guns (“‘They say
yes’”
constituted unreliable hearsay. But the Supreme Court has expressly held a gang expert may rely on
conversations with gang members in addition to information learned from
colleagues when opining about gang matters.
(People v. Gardeley (1996)
14 Cal.4th 605, 620 (Gardeley).)
Attempting to circumvent
his forfeiture for lack of a specific objection that the gang gun testimony
intruded into an ultimate issue reserved for the jury, Garcia argues he
received ineffective assistance of counsel (IAC). He asserts his attorney improperly failed to
object under People v. Killebrew
(2002) 103 Cal.App.4th 644 that, as occurred there, the gang expert’s
testimony on an ultimate issue “did nothing more than inform the jury how [the
expert] believed the case should be decided” (id. at p. 685). This
tack fails for several reasons.
First,
testimony concerning a hypothetical gang member’s knowledge of a gun in a
vehicle other than the one in which
he was a passenger. The reviewing court
concluded the hypothetical was so transparent that it constituted an opinion on
the defendant’s subjective state of mind, an issue reserved for the jury. But our Supreme Court has subsequently
explained that hypotheticals mirroring the facts of the case are proper because
expert opinion evidence must be “rooted in the evidence of the case being
tried, not some other case.” (
1038, 1046.) Additionally, the court has
explained an expert opinion on an ultimate issue is not necessarily forbidden
where it aids the jury on unfamiliar topics, but only where it is “unhelpful”
because it preempts a conclusion the jury can reach unaided by the
testimony. (People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3
[expert may properly testify concerning typical gang member motivations and
intent, though this touches on ultimate issues of motive and intent].)
Second and related,
Yepes did not introduce the gang gun concept in response to a hypothetical
posed by the prosecutor, but rather as part of his background explanation of
the high value gangs place on guns and that gang members therefore generally
alert one another if a gun is present.
The law is clear that a gang expert may testify on the culture and
habits of criminal street gangs beyond the experience of most jurors, including
typical gang beliefs and corresponding practices. (Hernandez,
supra, 33 Cal.4th at
p. 1049; Gardeley,
see People v. Olguin (1994)
31 Cal.App.4th 1355, 1370 [“The use of expert testimony in the area of
gang sociology and psychology is well established”].)
Third, Yepes did not
direct the jury to conclude under the gang gun theory that Ureno
in this case. Rather, Yepes testified
only that gang members are generally “expected to tell each other” about the
presence of a gun, but he expressly acknowledged “it doesn’t always happen” and
that one has to “look at the facts of [each] case” to reach a conclusion
whether the disclosure was made. Though
he was entitled to offer an opinion on this topic in the form of a hypothetical
(see ante, e.g., Vang, Gonzalez,
so, instead leaving the determination entirely to the jury.
Fourth, Garcia’s premise
on appeal is that Ureno, as the driver and registered owner of the vehicle in
which the gun was found, presumably knew of the gun and therefore, under the
gang gun concept, he told Garcia
about the weapon. But the record is
silent about who brought the gun into the vehicle or otherwise knew of the gun
first. The jury was not required to
decide this issue. But the record,
independent of the gang gun concept that Garcia challenges on appeal, points to
the conclusion that Garcia knew of
and principally possessed the weapon.
The handle pointed towards him, the weapon was wedged in a location more
convenient for the passenger to reach than the driver or one engaged in drug
sales through the driver’s side window, and, from the passenger seat, Garcia
could retrieve and use the weapon for offensive or defensive support of
narcotics sales, if necessary. Thus,
evidence of Garcia’s involvement in a mobile heroin distribution scheme
supported both the conclusion that Garcia did not possess his heroin-filled syringe
solely for personal use and also, independent of the gang gun disclosure
theory, that he held constructive possession of the gun to support the
scheme. For all the foregoing reasons,
there is no merit to Garcia’s IAC challenge to the gang gun concept as an
erroneous basis for his firearm possession convictions.
D.
Garcia challenges the
sufficiency of the evidence to support his conviction for active gang
participation (§ 186.22, subd. (a)) because the prosecution did not
establish “that the drug offense was gang related.” Our Supreme Court has determined , however,
that the “felonious criminal conduct” (ibid.)
underlying a conviction for active gang participation need not be gang related
(Albillar, supra, 51 Cal.4th at pp. 56, 58), and we are bound by
that conclusion (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455).
Garcia also challenges
the sufficiency of the evidence to support the jury’s conclusion he committed
his offenses for the benefit of a criminal street gang (§ 186.22,
subd. (b)). But it is enough, even
without the evidence that Garcia was a long-time active Eastside member and
that taxes on individual members’ narcotics sales benefitted both his gang and
the Mexican Mafia, that he committed the offense “in association with” (
Eastside member (Albillar,
p. 60). This is particularly true
given Ureno admitted Eastside’s activities included narcotics offenses. (Cf. People
v. Ramon (2009) 175 Cal.App.4th 843, 853; see also
179 Cal.App.4th 650, 661, fn. 7 [evidence sufficient when defendant
commits offense in association with fellow gang member].)
E.
Garcia correctly
anticipated the Supreme Court’s holding in Mesa
that imposition of sentence on an active gang participation conviction must be
stayed under section 654 when the conviction is based on an underlying
felony for which the defendant is or has been punished. (Mesa,
supra, __ Cal.4th at
p. __.) A defendant may only be
punished once for what the Supreme Court has determined is the same, single
act.
III
DISPOSITION
The
judgment is affirmed except that we reverse the trial court’s imposition of
sentence on the active gang participation (§ 186.22, subd. (a))
count. Sentencing on that count must be
stayed under section 654, and we direct the trial court to modify the
judgment accordingly, correct the abstract of judgment, and forward the
corrected abstract of judgment to the Department
of Corrections and Rehabilitation.
ARONSON,
J.
WE CONCUR:
RYLAARSDAM,
ACTING P. J.
BEDSWORTH, J.
