P. v. Gonzalez



















Filed 3/5/13 P. v. Gonzalez CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.









IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO GONZALEZ, Defendant and Appellant.

G046564 (Super. Ct. No. 11CF1475) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Patrick Donahue, Judge. Affirmed in part and reversed in part.

Melissa Hill, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Steve Oetting and Andrew Mestman, Deputy
Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted
Alejandro Gonzalez of second degree
robbery (count 1; Pen. Code, §§ 211, 212.5, subd. (c); all
further statutory references are to this code), assault with a firearm
(count 2; § 245, subd. (a)(2)), felon in possession of a firearm
(§ 12021, subd. (a)(1)), misdemeanor href="http://www.fearnotlaw.com/">trespass (§ 602.5, subd. (b))
as a lesser-included offense of gang-related trespass (§ 186.22,
subd. (d)), and active gang participation (count 5; § 186.22,
subd. (a); hereafter sometimes “street terrorism,” “the (a) count,” or
“substantive gang offense”). The jury
rejected gang enhancement allegations (§ 186.22, subd. (b)), but
found firearm allegations true on count 1 (§ 12022.53, subd. (c))
and count 2 (§ 12022.5, subd. (a)).
In a bifurcated proceeding,
the trial court found prior conviction allegations true for a prior prison term
(§ 667.5, subd. (b)), a prior serious felony conviction
(§ 667.5, subd. (a)(1)), and a prior “strike” conviction
(§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) &
(c)(1)).

On appeal, Gonzalez
challenges the sufficiency of the evidence to support his conviction for active
gang participation because he acted alone in committing his offenses. Alternatively, he argues the federal and
state Constitutions bar for a sole perpetrator conviction of street terrorism
or, at a minimum, section 654 required the trial court to stay sentencing
on the (a) count. He also contends
no substantial evidence established the primary activities of his gang, a
predicate for any gang-related conviction or enhancement, and he insists the
trial court violated his confrontation
rights by permitting the prosecution’s gang expert to testify concerning
his gang’s primary activities.

Because the California
Supreme Court recently concluded a gang member acting alone, even on behalf of
his gang, does not commit a substantive gang offense (People v. Rodriguez (2012) 55 Cal.4th 1125 (>Rodriguez)), we reverse Gonzalez’s
conviction on the (a) count. As we
explain, this outcome moots the remainder of Gonzalez’s claims, and we
therefore do not address them. In all
other respects, we affirm the judgment.

I

BACKGROUND AND DISCUSSION

The pertinent factual
and procedural background require little elaboration: two Santa Ana
police officers passing by in their vehicle observed Gonzalez pointing a gun at
a man outside a laundromat on Bristol Street. The gun “jerk[ed]” backwards, the officers
heard at least one gunshot and then saw the victim hand something to
Gonzalez. An eyewitness later provided
more detail, describing how Gonzalez confronted the victim with the gun and
demanded money, the victim complied but Gonzalez became angry at the amount the
victim handed over, fired two rounds into the wall behind the victim to
demonstrate “[t]his gun isn’t fake,” and collected more money from the
victim. Meanwhile, the officers made a
U-turn, exited their vehicle, and chased Gonzalez into a nearby home, where
they found him hiding in a closet.

After the jury returned
its verdict as noted, the trial court sentenced Gonzalez to 27 years in prison,
consisting of the low term of two years for robbery, with a 20-year consecutive
enhancement for discharging a gun during the offense, and a five-year
consecutive term for the prior serious felony conviction. The court imposed a concurrent term of
16 months for the substantive gang offense, stayed sentencing on the
remaining counts under section 654, and struck Gonzalez’s prior strike.

The merits on appeal
similarly call for little discussion as Rodriguez
requires reversal of Gonzalez’s conviction fort street terrorism because he
acted alone. (Rodriguez, supra,
55 Cal.4th at p. 1139; Auto
Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455.) His constitutional challenge and alternative
argument for a stay of the (a) count under section 654 are therefore
moot. Similarly, because we reverse his
conviction on the (a) count and because the jury rejected both the gang
trespass offense and gang-related penalty enhancements, nothing about
Gonzalez’s conviction or sentencing pertains to gangs, therefore mooting his
challenge to the sufficiency of the evidence concerning the primary activities
of his gang. (See, e.g., >Lester v. Lennane (2000)
84 Cal.App.4th 536, 566 [an appellate court will not engage in academic
prestidigitation to resolve moot points].)

II

DISPOSITION

Gonzalez’s conviction on
count 5 for street terrorism in violation of section 186.22,
subdivision (a), is reversed. The
judgment is affirmed in all other respects.
The trial court is directed to forward an amended abstract of judgment
to the Department of Corrections and
Rehabilitation.







ARONSON,
ACTING P. J.



WE CONCUR:







FYBEL, J.







THOMPSON, J.