P. v. Lopez
Filed 5/21/10 P. v. Lopez CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN CARLOS LOPEZ,
Defendant and Appellant.
B212370
(Los Angeles
County
Super. Ct.
No. BA274123)
APPEAL from
a judgment of the Superior Court
of Los Angeles
County.
Anne H. Egerton, Judge.
Modified in part; reversed in part; affirmed in part.
Madeline
McDowell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G.
Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle
and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
_______________
After jury trial, appellant Juan Lopez was convicted of
the first degree murder of Robert Bautista (count 1) and the premeditated attempted murder of Sam
Robson (count 2). As to those offenses,
an allegation that appellant personally and intentionally discharged a firearm
causing death (Pen. Code, § 12022.53, subd. (d)) was found true.
Appellant
was also convicted of possession of a
firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), and 7 counts of
transportation of a controlled substance (Health & Saf. Code, §§ 11379,
subd. (a); 11352, subd. (a)), some taking place on October 13, 2002, and some taking place on April 24, 2003. On each of the controlled substance offenses,
an allegation that appellant was personally armed with a firearm (Pen. Code, §
12022, subd. (c)) was found true.
Finally, appellant was convicted of one count of false compartment
activity. (Health & Saf. Code, §
11366.8, subd. (a).)
Allegations
that all of the crimes were committed for the benefit of a street gang (Pen.
Code, § 186.22, subd. (b)(1)(A)) were found true, as was the allegation, under
Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions
(a) through (d), that appellant had suffered a prior conviction for a serious
or violent felony in case number BA160614.
Appellant
was sentenced to a total aggregate determinative term of 48 years, 8 months, to
be followed by consecutive terms on counts 1 and 2 of 130 years to life, for a
total of 178 years and eight months to life in state prison.
Appellant
contends that he received ineffective assistance of counsel in that counsel
failed to object to certain testimony (and the concomitant jury instruction and
argument) which appellant contends was admitted in violation of his Fifth
Amendment right to remain silent, in failing to move to bifurcate the strike
allegation and the gang allegation, and in failing to stipulate to his status
as a felon for purposes of Penal Code section 12021. Appellant also contends that there is
insufficient evidence that the crimes were committed for the benefit of a
street gang. Finally, appellant
contends, and respondent agrees, that the abstract of judgment must be amended
so that it correctly reflects the sentence which was actually imposed on count
7.
We agree
with appellant that the evidence is insufficient for the gang allegation. In all other respects we see no ground for
reversal, and affirm.
Facts
The murder
and attempted murder took place on October
12, 2002, outside the Fais Do-Do Club in Los
Angeles. About 2:00 a.m., when the club was closing and there
were about 30 people in the street, a man named Daniel Johnson yelled what he
described as a "smart-ass remark" to a man who was trying to get into
the club. The man confronted him, saying
"fuck you, White boy. You don't
want to fuck with a Mexican in the ghetto." The man stared at Johnson until Johnson
turned away, then said "that's what I thought, White boy." A few seconds later, Johnson saw the man bump
into Robert Bautista, the murder victim.
A scuffle, then the shooting, followed.
Johnson heard shooting, but did not see it. Johnson was never able to make an
identification of anyone he saw that night.
Sam Robson,
the victim of the attempted murder, was outside the club smoking a
cigarette. He saw two men trying to
provoke and antagonize Bautista, and threatening him. Robson saw them jump Bautista. Bautista "was trying to retreat and they
were aggressively pursuing him, and then he lost his balance, fell backwards,
they jumped on top of him and started basically stomping him." This lasted a couple of minutes. Robson pulled the assailants off
Bautista. One of them pulled a gun from
his waistband and shot Bautista, then turned, pointed the gun at Robson, and
fired at least four times. Bautista died
of gunshot wounds to the head. Robson
was not hit.
Robson
identified appellant's picture in a photographic lineup, saying that the person
in the picture looked similar to the shooter.
In court, Robson identified appellant as the shooter, testifying that he
was positive about the identification.
Robson was
also shown a picture of another member of the 18th
Street gang, Willie Vazquez. He testified that the person in the picture
looked similar to the second man who beat Bautista. (The detective who prepared the photo lineup
testified that he included Vasquez's picture because he thought Vasquez could
be involved in the case.)
Another
witness, Jessica Burton, was at the club with Robson and other friends that
night. She saw two men beating Bautista,
saw Robson pull the men off Bautista, and saw one of the men pull a gun and
shoot Bautista. That man then shot at
Robson four to seven times. Burton
described the shooter to police and when shown a photo lineup, chose
appellant's picture, saying that the man in the picture had the same features,
complexion, and neck, so that she was "almost certain" that he was
the shooter, even though she would have to see his entire body to know with 100
percent certainty. Burton
was shown Vasquez's photograph but did not make an identification.
Witnesses
testified that after the shooting, the two men fled. Another witness, Martin McCoy, was driving in
the area just prior to the shooting. He
saw a red Mazda back into an alley behind the club and park. Two men got out. McCoy soon heard gunshots.
He remained at the scene and pointed the Mazda out to police
officers. Later, when shown a photo
lineup with a recent picture of appellant, he identified appellant as the
driver of the Mazda.
Detective
Rick Gordon responded to the scene. In
pertinent part, he observed the number 18 spray painted on a lamppost near the
club.
The Mazda
was impounded. It was registered to
appellant, and his fingerprints were inside.
Police found film canisters full of bindles of cocaine and
methamphetamine in the center console.
Documents
in the Mazda also linked the car to appellant.
Detectives found his birth certificate, the title to the car, a smog
certificate, and a repair estimate, with appellant's name and an address which
listed an apartment number which did not exist at that location. Detective Jeff Nolte called the number on one
of the DMV documents and spoke to someone who identified himself as Juan Lopez,
asking him to claim his car. Detective
Nolte testified that the Mazda was still in police custody because the
registered owner, appellant, had not come to get it released.
In April
2003, appellant was pulled over while driving a silver Honda. A handgun was found in his waistband, and he
was arrested. Appellant initially gave a
false name and false identification, but after his true identity was
determined, he told LAPD Officer Anton Umansky that he was a member of the 18th
Street gang and had been for eight years.
Detective
Nolte learned of the arrest and in August 2003, searched the Honda. Narcotics,
including methamphetamine, cocaine, and ecstasy were found in hidden
compartments.[1]
The
prosecution called LAPD Officer Edgar Hernandez, who testified as a gang expert
familiar with the 18th Street
gang. He testified, inter alia, on the
history of that gang, the initiation process, and gang graffiti. He testified that 18th
Street gang was very territorial, that gang
members cared about respect more than anything else, and that respect meant
fear and intimidation. Gang members
spread fear and intimidation so that citizens in the neighborhood would be afraid
to report a crime or to testify against a gang member. Based on appellant's tattoos
and appellant's admission to Officer Umansky, Officer Hernandez opined that
appellant was an active 18th Street
gang member in October of 2002, and in April of 2003. Based on graffiti and other evidence, he
opined that the shootings took place in 18th Street
territory.[2]
Officer
Hernandez was given a hypothetical situation:
an 18th Street gang member goes to a nightclub in 18th Street territory
with another 18th Street gang member, and the 18th Street gang members are
harassing people leaving the club and then physically assault a person outside
the club and one of those 18th Street gang members pulls out a gun and shot the
person being beaten, then fired at another person. He was asked whether the shootings would be
for the benefit of, at the direction of, or in association with, the 18th
Street gang.
He opined
that the gang members "are harassing the party goers as they're exiting
the club . . . pretty much trying to instill fear not only with the party goers
but in the community, letting them know by harassing them, beating them up,
shooting at them, that that is in their area, their turf and anyone who's going
to confront them or fight back, there's consequences they have to pay. For example, killing this individual for just
confronting this gang member, trying to disrespect him on his own
neighborhood."
Officer
Hernandez was then asked whether in his opinion the conduct would be done with
the specific intent to promote or further assist future criminal conduct by the
gang. He opined that "it benefits
not only this individual, to elevate his status in the gang, but also pretty
much promotes the gang, telling the community that that's who controls that area,
and also telling rival gang members that there's consequences that happen if
they try confronting an 18th Street gang member. And also they put fear not only with the
party goers, but with the community members and lets them know that they run
that area . . . pretty much anything that goes on, that's who they have to deal
with. Not with the neighbors, not with
the homeowners, but with the gang itself."
Officer
Hernandez was also asked a hypothetical question about the drug charges,
whether an 18th Street gang member transporting a quantity of narcotics in
excess of $100 in multiple individual packages in a car would be transporting
the narcotics for the benefit of, at the direction of, or in association with
the gang.
He
testified that it would be, explaining that suppliers charge less to gang
members, that sales of drugs by gang members was thus more profitable than
sales by non members, and that the money "goes up the ladder" to the
prison gang. "The more money they
make, they're able to buy more drugs, make more money, buy more guns, commit
more crimes, buy cars for the gang to commit crimes not only in the area but
away from the neighborhood where no one knows them."
Relevant to
the charge of possession of a firearm by a felon (Pen. Code, § 12021, subd.
(a)(1)), the prosecution introduced, inter alia, certified records from the
Department of Corrections and Rehabilitation reflecting appellant's convictions
and prison commitments for possession of a firearm by a felon or addict in case
number SA048574, for robbery in case number BA160624, and for possession of a
controlled substance in case number SA034646.
Gang
intervention specialist Kimi Scudder testified to her background and her work
with gang members to stop violence. She
testified, inter alia, that gang tattoos did not prove gang affiliation, and
that a gang member would not admit membership to a police officer.
McCoy had
testified that the driver of the Mazda had been wearing a black beanie or skull
cap, and a black beanie was recovered at the scene of the murder and attempted
murder. Defense forensic scientist
Richelle Neverson swabbed the beanie and was able to generate a low level
partial DNA profile. She testified that
appellant was not a possible donor.
Dr. Mitchell Eisen testified as
an expert in eyewitness identification and the current state of the science
related to memory.
Discussion
1. Ineffective Assistance of Counsel
Appellant
argues that his counsel was ineffective in failing to object to Detective
Nolte's testimony concerning his phone call to appellant and to the
prosecutor's comment on the testimony in closing argument, in failing to
stipulate to appellant's status as a felon for purposes of Penal Code section
12021, subdivision (a)(1), in failing to move to bifurcate the gang allegation,
and in failing to move to bifurcate the strike allegation. He also claims cumulative error.
"To establish ineffective assistance of counsel, a defendant
must show: (1) counsel's representation
fell below an objective standard of reasonableness under prevailing
professional norms, and (2) counsel's deficient performance was
prejudicial." (People v.
Hester (2000) 22 Cal.4th 290, 296.)
To show prejudice, a defendant must show that a more favorable verdict would have been
reasonably probable in absence of counsel's failings. (People v. Ledesma (1987) 43
Cal.3d 171, 216-217.) Where the question
is counsel's failure to move for such things as bifurcation, appellant
"must show that reasonably competent counsel would have moved . . . [and]
that such motion would have been successful . . . ." (People
v. Grant (1988) 45 Cal.3d 829, 864-865.)
a.
Detective Nolte's testimony
We begin
with a fuller statement of the relevant facts:
Detective
Nolte testified that he called the number on the documents found in the
Mazda. A person who identified himself
as Juan Lopez answered. Detective
Nolte described the car and advised the person that it had been abandoned in
the alley and that it could be released to him.
The person said that it was his car.
Detective Nolte "started to attempt to
engage the person in conversation, why the car was abandoned where it was, and
the person became very evasive and wanted to avoid that area and stated he
would be responding to get his vehicle."
Detective Nolte gave Lopez his contact numbers and the address of
the station, but Lopez never showed.
As
to subsequent calls, Detective Nolte testified that "I actually made
several other attempts. I left a message
at that number which I believe is the home or the residence, a phone number
with my information, and I think I waited for about three and a half hours with
no response from Mr. Lopez physically or via the phone."
In
closing, the prosecutor summarized the evidence linking appellant to the Mazda
and Detective Nolte's testimony, and argued that "the defendant won't
explain why he left the car in the alley and won't come get the car from the
police," and that "the person on the phone, who says he's Mr. Lopez,
didn't deny leaving his car there. He
didn't. He just would not say why and
wouldn't come get it."
Appellant's
claim is that Detective Nolte's testimony concerning the phone call was barred
by the Fifth Amendment to the United States Constitution, that his termination
of the telephone call with the detective should be seen as an invocation of
that right, and that the prosecutor's argument about the testimony was
improper. He argues that the violation
requires reversal of counts one through three, contending that the inadmissible
evidence and the argument bolstered the evidence (in particular, the
identifications) on those counts and affected those counts.[3]
Appellant
relies on People
v. Waldie (2009) 173 Cal.App.4th 358, 365-366. In that case, a
detective received a report that the defendant had sexually abused a minor. The detective testified that the defendant
never participated in an interview, although the detective had made a dozen
phone calls to him, and that the defendant had promised to call back, but never
did. The court instructed the jury that
defendant's statement promising he would call back tended to show consciousness
of guilt, and the prosecutor commented on this in closing argument. (Id.
at p. 364.)
On
appeal, the defendant claimed a violation of his right to remain silent. Waldie
noted, as do the parties here, that in Jenkins v.
Anderson (1980) 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 the United
States Supreme Court held that comment on a defendant's pre-arrest silence is
permissible for impeachment purposes, but left open the question of
whether pre-arrest silence is in other circumstances protected by the Fifth
Amendment. (People v. Waldie, supra, 173 Cal.App.4th at p. 362, fn. 2.)
a split in case law[4] on this issue in the
federal circuits.
circumstances of the case before it, "the evidence and argument violated
the Fifth Amendment because defendant was deprived of any meaningful right to
refuse to talk to the police. If the
police are allowed to call a suspect persistently and then offer his
unwillingness to respond as evidence of guilt, a defendant would never be able
to claim the protection of freedom of incrimination. A different result might be indicated if the
detective had called defendant only one time or a few times. But testimony about repeated phone calls and
apparent evasiveness by defendant is constitutionally infirm." (Id.
at p. 366.)
Appellant
argues that the facts here are similar to those in Waldie, and that we should adopt the reasoning of the federal cases
which find that the use of a defendant's pre-arrest silence as substantive
evidence of guilt violates the Fifth Amendment.
First,
as appellant acknowledges, the issue here is ineffective assistance, and given
that Waldie was decided after trial
of this case, and that federal law was then and is now unsettled, counsel's
failure to object was excusable. (
18, 23.)
Nor does
this case resemble Waldie on the
facts. Detective
Nolte did not engage in repeated or persistent phone calls. He called only a few times and spoke to
appellant (or at any rate, someone identifying himself as Juan Lopez) only
once. The single conversation did not
(as did the questioning in Waldie)
request an interview, and indeed only partly involved questions bearing on
appellant's conduct on the night of the murder and attempted murder.
"evasiveness" apparently referred to that defendant's evasion of an
interview with police -- a refusal to speak.
Detective Nolte's testimony here was that the person he spoke to gave
evasive answers to a question. That is
speech, not silence. Whether a suspect
has indeed invoked the Fifth Amendment
right is a question of fact to be decided in the light of all the
circumstances. (
784.) The facts
here do not amount to an assertion of the right to remain silent, and a motion
to exclude this testimony would not have been successful. "Counsel does not render ineffective
assistance by failing to make motions or objections that counsel reasonably
determines would be futile." (
387.)
Further,
as to counts 1, 2, and 3, the jury heard evidence that appellant was at the
scene of the crimes at the relevant time, and heard two witnesses with every
opportunity to observe and no motive to lie testify that appellant committed
the crimes. The jury also heard that
Detective Nolte called appellant and told him that the car was in police
custody, and heard that the car was never claimed. (Appellant does not contend that the evidence
of Detective Nolte's statements, or the evidence that the car was still in
police custody, was barred by the Fifth Amendment, and we do not see that such
a claim would be meritorious.) The added
evidence that a detective called appellant about the car and that appellant was
in the detective's view evasive when asked why he had abandoned the car could
have added little to that evidence. We
see no reasonable probability that the outcome would have been different if the
evidence had been excluded.[5]
b.
Penal Code section 12021, subdivision (a)(1)
Appellant
was charged in count 3 with a violation of this statute, with two prior
convictions, a March 1998 conviction for robbery in case number BA160624, and a
March 1999 conviction for possession of a controlled substance (Health &
Saf. Code, § 11350) in case number SA034646.
In proof of
this charge, the prosecution introduced, inter alia, the abstract of judgment
for case number BA160624 and the abstract of judgment for case number
SA034646. The prosecution also
introduced the docket sheet for case number SA048574, an April 2003 case
charging appellant with violation of Penal Code section 12021, subdivision
(a)(1), with allegations of prior convictions in 1999 for robbery and in 1998
for possession of a controlled substance and showing a plea to the charge. As the prosecutor explained in closing argument,
this last conviction was the result of appellant's April 2003 arrest in the
silver Honda, in which drugs were later discovered.
The
prosecution also introduced appellant's chronological history from the
Department of Corrections and Rehabilitation from June of 1999 to June of 2004,
which includes references to parole violations and immigration holds.
Under
California law, "the jury must be advised that defendant is an ex-felon
where that is an element of a current charge," although "where
defendant will stipulate to ex-felon status, evidence of the nature of his
prior convictions still may and should be withheld from the jury, since such
evidence is irrelevant to the ex-felon issue." (People
v. Valentine (1986) 42 Cal.3d 170, 173.)
Appellant contends that counsel was ineffective because he did not offer
to stipulate to appellant's status as felon, thus keeping from the jury the
nature of the prior convictions.
"When a claim of ineffective assistance is made on
direct appeal, and the record does not show the reason for counsel's challenged
actions or omissions, the conviction must be affirmed unless there could be no
satisfactory explanation." (
25 Cal.4th 543, 569.) Here, there could
be satisfactory explanations. Appellant
might have refused to stipulate.
Appellant's counsel might well have feared that a jury which learned
only that appellant had been convicted of a felony would imagine that the
felony was something worse than a robbery, felon in possession, or a controlled
substance conviction, and for that reason, decided not to object.
Appellant
also contends that counsel was ineffective because he did not move to limit the
prosecution's evidence so that information about his parole and immigration
status was excluded. The notations in
the chronological history are brief and cryptic, and could have added little to
the evidence in the case. It is not
reasonably probable that there would have been a different result in the
absence of this evidence.
Appellant
next makes an argument based on counsel's failure to object to the jury
instruction, pursuant to CALCRIM No. 375, that "evidence of other
behavior" by appellant could be considered on the drug charges, "for
the limited purpose of deciding whether or not . . . the defendant knew of the
substances' nature as controlled substances when he allegedly acted in this
case." The prosecutor argued the
instruction in closing.
As
appellant acknowledges, this instruction was given after the prosecutor argued
to the court that the prior drug conviction was relevant to the proof of the
drug charges in this case, in that the conviction tended to show that appellant
knew that the drugs were a controlled substance. Appellant attacks that line of reasoning,
arguing that possession of one drug would not show that he understood the
nature of another drug, and arguing that in any event the prior conviction did
not logically show that he knew that the drugs were in either car.
These are
jury arguments. The jury was instructed that
"In evaluating this evidence, consider the similarity or lack of
similarity between the uncharged acts and the charged offenses. Do not consider this evidence for any other
purpose. Do not conclude from this
evidence that the defendant has a bad character or is disposed to commit
crime." If the jury agreed with
appellant that the prior conviction did not tend to prove that he knew that the
drugs in the Mazda or the Honda were controlled substances, it would not have
used the evidence for that purpose. We
say the same about the link between the prior conviction and the prosecutor's
burden to show that appellant knew that the drugs were in the cars.
Finally
under this heading, appellant argues that counsel was ineffective because he
did not offer to stipulate to the arming allegation if the jury reached a
guilty verdict on the April 24, 2003 drug charges, thus allowing the prosecutor
to argue that the earlier conviction for felon in possession "goes to
prove when he was transporting narcotics on that day, that he was personally
armed."
Again, we
cannot find ineffective assistance in the absence of a showing that appellant
was willing to enter into the stipulation.
Further, proof of the prior conviction would have added little to the
evidence that appellant was armed when arrested on
April 24, 2003,
and was armed when he shot Bautista and shot at Robson. It is not reasonably probable that the
outcome would have been different if counsel had entered into the stipulation
appellant now suggests.
c. The strike allegation
Appellant
also contends that counsel was ineffective for failing to move to bifurcate the
trial on his prior conviction, the robbery conviction in BA160624, and that the
omission was prejudicial. We cannot see
that the omission could have caused prejudice, since the charge of violation of
Penal Code section 12021, subdivision (a)(1), means that the jury would
inevitably have known that appellant had a prior conviction.
d.
The gang allegation
Here,
appellant contends that counsel was ineffective because he did not move to
bifurcate trial on the gang allegation.
He argues that the facts relevant to the gang allegation were not
relevant to issues of guilt, and that there was no testimony concerning gang
signs or other indicia, essentially arguing that there was insufficnet evidence
for the allegation. He argues that
"had defense counsel moved for bifurcation and an offer of proof, this
lack of sufficient evidence to support the gang allegation would have been
revealed to the trial court." As we
later explain, we agree that the evidence was insufficient for the jury's
finding on the gang allegation.
Nonetheless, we do not find merit in this argument.
A trial court has
broad discretion in determining whether to bifurcate a gang enhancement. However, because the enhancement
"is attached to the charged offense and is, by definition, inextricably
intertwined with that offense . . . less need for bifurcation generally exists
with the gang enhancement than with a prior conviction allegation." (People
v. Hernandez (2004) 33 Cal.4th 1040, 1048.)
Under the prosecution's theory of this case, the gang enhancement was
intertwined with the charged crimes, so that an objection would have been
futile. Again, "Counsel
does not render ineffective assistance by failing to make motions or objections
that counsel reasonably determines would be futile." (People
v. Price, supra, 1 Cal.4th at p. 387.)
e.
cumulative error
Appellant
argues that the "errors of omission" he finds in counsel's performance
were cumulatively prejudicial. As we
have explained, appellant has not established ineffective assistance, that is,
that there were errors of omission. We
thus find no cumulative error.
2. Sufficiency of the evidence for the gang
finding
To find the
gang enhancement true, the jury was required to find, inter alia, that
appellant "committed the crime[s] for the benefit of, at the direction of,
or in association with a criminal street gang," and that appellant
"intended to assist, further, or promote criminal conduct by gang
members." (Pen. Code, § 186.22,
subd. (b)(1).)[6]
On
this challenge to the substantial evidence for the finding, we review the
entire record in the light most favorable to
the judgment to determine whether it discloses substantial evidence – that is,
evidence which is reasonable, credible, and of solid value – to support the
jury finding. We draw all reasonable
inferences in support of the judgment.
Reversal is not warranted unless it appears that upon no hypothesis
whatever is there sufficient substantial evidence to support finding. (People
v. Duran (2002) 97 Cal.App.4th 1448, 1456.)
We cannot find such evidence here.
There
was, as appellant more or less concedes, sufficient evidence that he was a
member of the 18th Street gang and that the shootings, at least, took place in
18th Street territory. However, the only
evidence that the crimes were for the benefit of the gang, and that appellant
intended to benefit the gang, came from Officer Hernandez's testimony. There was nothing in appellant's behavior or
any circumstance of the crimes which tended to prove those elements.
The
shootings were not directed at rival gang members and were not accompanied by a
declaration of appellant's own gang affiliation or any other sign that
reputation or another gang interest was at stake. Appellant did nothing to announce to the
crowd that 18th Street was involved, advancing the gang's desire to instill fear
into the neighborhood.
Concerning
the shootings, Officer Hernandez was asked to assume that a member of the 18th
Street gang was at a nightclub in 18th
Street territory with another 18th
Street gang member, and that both gang members
were harassing people leaving the club.
There was, however, no evidence that appellant was accompanied by
another 18th Street gang
member. Officer Nolte believed that that
might be so, and showed witnesses a picture of Willy Vasquez, whom Officer
Nolte believed was a gang member, but Robson only said that the person
"looked similar" to the second man and there was no other
identification. This is not proof that
appellant was in the company of another 18th Street
gang member.
We say the
same about the drug offenses. Officer
Hernandez opined that drug transportation by a gang member is necessarily done
to benefit the gang, but that is the only evidence on the issue. Nothing in the facts of the case except
appellant's gang membership brand these crimes as gang crimes. Nothing in the facts tells us that appellant
intended to advance gang interests.
Expert testimony "that a specific individual had
specific knowledge or possessed a specific intent" is not sufficient to
prove appellant's intent. (People v. Killebrew
(2002) 103 Cal.App.4th 644, 658.)
3. The abstract of judgment
As
appellant argues, and respondent agrees, the abstract of judgment reflects a
sentence on count 7 of 4 years, with enhancements of 16 months for the firearm
enhancement and one year for the gang enhancement. In fact, the sentence imposed by the court on
count 7 was 2 years, with those enhancements.
Appellant asks that the abstract of judgment be corrected to reflect the
term actually imposed. We make that
order.
Disposition
The 4 year
term on count 7 is ordered corrected to 2 years. The terms for the gang enhancements are
reversed for counts 3 through 11. These
corrections result in a total determinate term on counts 3 through 11 of 38
years, 8 months in state prison.
The judgment is in all other respects affirmed.
ARMSTRONG,
Acting P. J.
We concur:
KRIEGLER,
J.
FERNS,
J.*
Publication courtesy of California
pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
San Diego Case
Information provided by www.fearnotlaw.com
[1] Because there is no challenge to the
sufficiency of the evidence for the charges based on these discoveries, we omit
the remaining evidence.
[2] Through Officer Hernandez's testimony and
documentary evidence, the prosecution introduced evidence in support of the
other elements of the gang allegation.
There is no challenge to the sufficiency of the evidence on those
elements, and we do not go into detail.
