v.Wilson
Filed
1/11/13 P. v.Wilson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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.
TYRONE ALLEN
WILSON,
Defendant and Appellant.
Consolidated Case Nos. F062533 & F062619
(Super. Ct. Nos. BF123662A & BF131206A)
Appellant
Tyrone Allen Wilson filed a petition for
rehearing on January 4, 2013. The petition requested rehearing on the
ground that in People v. Rodriguez
(Dec. 27, 2012, S187680) ___ Cal.4th ___ [2012 WL 6699638] (
rejected the reasoning, and overruled the cases, on the basis of which we
affirmed Wilson’s conviction of active participation in a
§ 186.22, subd. (a)). Wilson
is correct. We will deny rehearing and
modify our opinion to conform to the Supreme Court’s holding. The modification alters the judgment, as we
will be reversing Wilson’s conviction on count 3.
The
unpublished opinion filed herein on December 17, 2012, is modified in the
following particulars. (The page numbers
referenced in this order are based on the pagination in the hard copy of the
original opinion filed in the clerk’s office, a copy of which is attached to
this order for reference.)
1. Page 2: After the second full paragraph, insert the
following new paragraph:
Under
the California Supreme Court’s recent opinion in People v. Rodriguez (Dec. 27, 2012, S187680) ___ Cal.4th ___
[2012 WL 6699638] (Rodriguez), Wilson
is correct that his conviction of active participation in a criminal street
gang must be reversed.
be based on an underlying offense committed by a single gang member acting
alone; instead, there must be at least two individuals acting in concert. There were no other gang members involved in
Wilson’s underlying offenses, so the conviction cannot be sustained. Wilson’s sentence on this offense also was
stayed.
2. Page 12: Delete the entire section (running from the
second full paragraph on page 12 to the end of page 15) headed “
subdivision (a)
Section 186.22,
subdivision (a), provides:
“Any person who actively
participates in any criminal street gang with knowledge that its members engage
in or have engaged in a pattern of criminal gang activity, and who willfully
promotes, furthers, or assists in any felonious criminal conduct by members of
that gang, shall be punished by imprisonment in a county jail for a period not
to exceed one year, or by imprisonment in the state prison for 16 months, or
two or three years.â€
Wilson
argues that the element of willfully promoting, furthering, or assisting in any
felonious criminal conduct by members of the gang requires a finding that the
defendant committed an underlying offense in concert with at least one gang
member. As there was no evidence that
any other gang member was involved in Wilson’s drug offense, he contends that
the evidence was not sufficient to support the conviction.
In
Rodriguez, the Supreme Court adopted
the view for which Wilson argues. The
court stated:
“Section 186.22(a)
speaks of ‘criminal conduct by members of that gang.’ (Italics added.) ‘[M]embers’ is a plural noun. The word ‘promotes, furthers or assists’ are
the verbs describing the defendant’s acts, which must be performed
willfully. The phrase ‘any felonious
criminal conduct’ is the direct object of those verbs. The prepositional phrase ‘by members of that
gang’ indicates who performs the felonious criminal conduct. Therefore, to satisfy the third element, a
defendant must willfully advance, encourage, contribute to, or help members of
his gang commit felonious criminal conduct.
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.†(
WL 6699638 at p. 3].)
The
Supreme Court overruled People v. Salcido
(2007) 149 Cal.App.4th 356 and People v.
Sanchez (2009) 179 Cal.App.4th 1297, which had held that a violation of
section 186.22, subdivision (a), could be based on an underlying
offense that the defendant committed alone.
(Rodriguez, supra, ___ Cal.4th
___ [2012 WL 6699638 at pp. 6-7].)
In
light of Rodriguez, it is clear that
the evidence cannot support Wilson’s conviction under section 186.22,
subdivision (a). That conviction is
reversed.
3. Page 16: Delete the entire section (running from the
top of page 16 to the end of the partial paragraph at the top of
page 17) headed “
Section 186.22, subdivision (b).†Replace it with the following text:
subdivision (b)
Section 186.22,
subdivision (b)(1), provides a sentence enhancement for “any person who is
convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members .…†Wilson argues that the prosecution failed to
present sufficient evidence to prove the enhancement allegations against
him. We hold that the evidence was
sufficient.
Wilson
first argues that the evidence did not prove that he committed the current
offense for the benefit of, at the direction of, or in association with a
gang. Officer Champness testified that
if a Country Boy Crips member possessed cocaine base for sale, the offense
would be for the benefit of, at the direction of, or in association with the
Country Boy Crips, but Wilson argues that this testimony is not substantial
evidence that he possessed the
cocaine base for sale for the benefit of, at the direction of, or in
association with the Country Boy Crips, because it was not proved that he was a
member of the gang.
We
disagree. Wilson claimed gang membership
seven times to booking officers, most recently in 2008, 21 months before his
arrest in this case. During those 21
months, Wilson was ordered to spend a year in county jail as a condition of
probation in case No. BF123662A, so he had even fewer than 21 months of
freedom between the time of his last admission of gang membership and the
commission of the current offense.
Further, there was physical evidence of Wilson’s current gang
participation at the scene of the current offense itself: the sign and note bearing Wilson’s gang
moniker, Holiday. The
possession-for-sale offense was a characteristic gang crime, according to the police
expert. When confronted with a
seven-time admitted gang member, bearing gang tattoos, committing a
characteristic gang crime in a room where a sign and another writing showed his
gang moniker, the jury could reasonably find that the defendant was a current,
active participant in a gang.
Wilson
argues that the evidence that he claimed gang membership seven times while
being booked into jail shows nothing because he “could have claimed to be a
County Boy Crip (if in fact this is what he actually claimed as opposed to what
was written down or how it was interpreted by Officer Champness) out of an
abundance of caution for his safety due to being acquainted with some Country
Boy Crips, and not because he was a member of the gang himself. This is the logical inference because
[Wilson] has never been a documented gang member.â€
The
idea that Wilson claimed he was a Country Boy Crip even though he was not is
contradicted by the other evidence.
Wilson had gang tattoos on his arms and a sign and a note with his gang
moniker in his room. As for not being a
“documented gang member,†Wilson appears to mean that he was never before
ordered to register as a gang member.
There is, of course, no requirement that a defendant must be a
registered gang member before his sentence can be enhanced under section 186.22,
subdivision (b).
Wilson
says the tattoos on his arms do not show gang membership because “[i]t appears
just as likely that this was actually a tattoo of a former girlfriend’s
initials.†It is not just as likely. The prosecution presented photographs of the
tattoos; opinion testimony that the letters were “C†and “B†and that many
County Boy Crips had tattoos like these; and a photograph of another Country
Boy Crip with similar tattoos in the same places on his arms. On the other side of the balance was only
defense counsel’s opinion that the “C†looked like a “G†and a witness’s remark
that Wilson once had a girlfriend named Gina, whose last name was unknown. The evidence that the tattoos were indicative
of Country Boy Crips membership was strong, and the evidence that they stood
for someone named Gina B. was nearly nonexistent.
Wilson
next argues that the prosecution failed to show by substantial evidence that he
acted with the specific intent to promote, further, or assist in any criminal
conduct by gang members. His reasoning
is similar to the reasoning that prevailed on the section 186.22,
subdivision (a), issue in Rodriguez: the reference to “conduct by gang membersâ€
appears to indicate that the statute applies only if multiple gang members are
involved in the underlying offense. The
denied that the reasoning of that case applies to section 186.22,
subdivision (b)(1), enhancements.
It stated:
“A lone gang
member who commits a felony … would not be protected from having that
felony enhanced by section 186.22(b)(1), which applies to ‘any person who
is convicted of a felony committed for the benefit of, at the direction of, or
in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang
members .…’ Because the gang
enhancement under section 186.22(b)(1) requires both that the felony be
gang related and that the defendant act with a specific intent to promote,
further or assist the gang, these requirements provide a nexus to gang activity
sufficient to alleviate due process concerns.â€
(Rodriguez, supra, ___ Cal.4th
___ [2012 WL 6699638, at p. 9].)
4. Page 21: Delete the first sentence of the
disposition. Replace it with the
following:
The
convictions on count 2, maintaining a place for selling, giving away, or
using a controlled substance, and count 3, active participation in a
criminal street gang, are reversed.
Except
for the modifications set forth in this order, the opinion previously filed
remains unchanged.
_____________________
Wiseman,
Acting P.J.
WE CONCUR:
_____________________
Gomes,
J
______________________
Poochigian, J
>
Filed 12/17/12
P. v. Wilson CA5 (unmodified version)
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.
TYRONE ALLEN
WILSON,
Defendant and Appellant.
Consolidated Case Nos. F062533 & F062619
(Super. Ct. Nos. BF123662A & BF131206A)
APPEAL
from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.
Cheryl
Rae Anderson, 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, Stephen G. Herndon and
Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Tyrone Allen Wilson was
convicted in case No. BF131206A of possessing cocaine base for sale and
maintaining a place for the purpose of selling, using, or giving away a
controlled substance. Gang enhancements
for those two counts were found true, and Wilson also was convicted of the
substantive offense of gang participation.
In case No. BF123662A, the court found that Wilson
violated his probation in a prior case by committing the current offenses. It sentenced him to a total of 10 years.
In
this appeal, Wilson argues that there was insufficient evidence to support the
conviction of maintaining a place for selling a controlled substance, the
conviction of participating in a gang, or the gang enhancements. He also challenges several of the details of
his sentence.
We
agree with Wilson that the evidence is not sufficient to sustain the
maintaining-a-place conviction. There
was no evidence that Wilson used the hotel room in which his drugs were found
for any activities other than storing and packaging the drugs. We also agree with Wilson that the court
erred when it suspended his driver’s license for one year on the ground that
there was vehicle use incidental to the offenses. The only connection between Wilson’s vehicle
use and the offenses is that he was driving with the key to the hotel room in
his pocket when the police pulled him over.
These holdings will not impact the actual time served by Wilson or his
ability to drive, as the sentence for the maintaining-a-place offense was
stayed by the trial court and the one-year license-suspension period has
already expired.
In
addition, we order technical corrections to the abstract of judgment related to
presentence conduct credits and to the date of conviction in the probation
case. In all other respects, we affirm.
FACTUAL AND PROCEDURAL HISTORIES
On
the evening of March 2, 2010, Bakersfield police officers Tim Diaz and
Pete Beagley pulled over a car with tinted windows and a missing rear license
plate. Wilson was driving the car. The officers searched him, and in his pockets
they found $425 in cash and a key card bearing the name of a hotel chain,
America’s Best Inn.
Diaz
and Beagley turned Wilson over to another officer and proceeded to the
America’s Best Inn at 8230 East Brundage Lane.
The desk clerk told them that Wilson was staying in room 221. The registration form on file at the front
desk for room 221 showed that the room was registered to Scyotria Williams,
Wilson’s girlfriend. Copies of Wilson’s
and Williams’s driver’s licenses were attached to the form. Williams’s name was misspelled “Wiliams†on
the form.
The
card the officers found in Wilson’s pocket unlocked the door to
room 221. The officers found,
hidden under a nightstand, a bag containing a substance that was later
determined to be 266.8 grams of cocaine base.
Behind a microwave oven they found a digital gram scale with white
residue on the weighing platform. A
backpack filled with cash was behind an armchair. There was $11,400 in the backpack, sorted
into bundles by denomination. All but
$1,600 was in denominations smaller than $50.
On a desk were two boxes of clear plastic sandwich baggies. The desk drawer contained a razor blade with
white residue on it. Beneath the desk
was a trash can; inside were several torn plastic baggies. Pieces of plastic bags with torn corners were
on the floor beside the trash can. On
the floor of the closet was a black plastic bag with its corners torn off.
Also
behind the microwave was a receipt with numbers written on it, and the words,
“I love you, Holiday.†A sign reading
“Holiday†was on the bed or against the wall.
Bakersfield police officers knew Wilson by the gang moniker
Holiday. On previous occasions when he
was incarcerated, Wilson had identified himself as a member of the Country Boy
Crips criminal street gang and had asked to be housed apart from rival gang
members. He had the letter C tattooed on
the back of his left arm and the letter B tattooed on the back of his right
arm.
The
officers also found clothing, a shoulder bag, sunglasses, food, toiletries, and
other items in the room. From these,
they inferred that at least two people, a man and a woman, had been staying in
the room. When interviewed by police,
Wilson denied any knowledge of the hotel room or its contents. He said he had never been to that hotel and
it was impossible that the hotel would have a copy of his driver’s
license.
At
the time of the current offenses, Wilson was on probation in case
No. BF123662A. In that case, in
2008, Wilson pleaded no contest to one count of being a felon in possession of
a firearm. (Former Pen. Code,
§ 12021, subd. (a)(1).) He
received three years’ probation, including one year in county jail. On March 9, 2010, Wilson was arraigned
on a violation of probation based on the facts of the current offenses.
The
district attorney filed an information in case No. BF131206A on
August 6, 2010, charging three counts:
(1) possessing cocaine base for sale (Health & Saf. Code,
§ 11351.5); (2) maintaining a place for the purpose of unlawfully
selling, giving away, or using a controlled substance (Health & Saf. Code,
§ 11366); and (3) actively participating in a criminal street gang
(Pen. Code, § 186.22, subd. (a)).
purposes on counts one and two, the information alleged that Wilson committed
the offenses for the benefit of, at the direction of, or in association with a
criminal street gang. (§ 186.22,
subd. (b).) The information also
alleged for sentence-enhancement purposes on each count that Wilson had served
two prior prison terms. (§ 667.5,
subd. (b).)
At
trial, police officers testified about the traffic stop and the search of the
hotel room as described above. Rashmi
Mulgi, one of the owners and managers of the hotel, testified that Wilson was
staying in room 221 on March 2, 2010, and that he and Williams had
been staying at the hotel for about a month.
Officer
Beagley, who had made many arrests for possession of controlled substances,
gave opinion testimony about illegal drugs.
He said that one gram of cocaine base has a street-level value of about
$100. For street sales, a large rock of
cocaine base is usually divided by means of a razor blade into small pieces
worth $10 each and packaged in bindles.
A bindle is usually made from a corner of a plastic bag. A small rock of cocaine base is placed in the
corner of the bag and the corner is then twisted off and tied or melted
closed. Sandwich bags or grocery bags
can be used. Answering a hypothetical
question based on the evidence found in room 221, Beagley opined that
whoever possessed the drugs would be in possession of them for the purpose of
selling them.
Bakersfield
police officer Daniel Champness testified as an expert on gangs. The parties stipulated that the Country Boy
Crips are a criminal street gang within the meaning of section 186.22. Champness opined that Wilson was an active
participant in the County Boy Crips on March 2, 2010. He mentioned a number of facts to support
this opinion. Wilson had a “C†and a “Bâ€
tattooed on the backs of his arms, which Champness said he had seen on other
Country Boy Crips members—and on no one else—and which stood for “Country
Boy.†Defense counsel opined that the
“C†looked like a “G.â€
The jury was
shown a photograph of another Country Boy Crips member with similar tattoos on
his arms. Wilson was known to officers
in the department as Holiday, which Champness opined was a gang moniker. On seven occasions when Wilson was booked at
the county jail between 1999 and 2008, Wilson claimed he was a Country Boy Crip
and asked to be kept away from members of the Bloods gang. In addition:
â— In 2003, Wilson was arrested with a
controlled substance and cash in his possession, both in quantities that led
officers to conclude he possessed the drugs for sale.
â— On February 13, 2005, Wilson was
stopped at D&A Market, a Country Boy hangout in Country Boy territory,
where illegal drugs were sold.
â— Wilson was identified as a suspect who,
on February 18, 2005, held two women at gunpoint in an apartment,
demanding to know what happened to some money.
â— The same day, at a different apartment,
Wilson conducted an illegal drug transaction.
â— The following day, February 19,
2005, Wilson was stopped while driving in Country Boy territory with several
other known Country Boy Crips and two firearms in the car. One of the other gang members called Wilson by
his gang moniker, Holiday.
â— On March 19, 2005, Wilson was
arrested while in Country Boy territory and in the company of another gang
member. The other gang member was in
possession of an illegal drug.
â— On November 1, 2006, a shooting
took place at the Regency Bowling Alley, a place known to police as a Country
Boy Crips hangout. Wilson was
interviewed by police because he had connections to a person who was arrested
for the shooting and because a witness described a person matching Wilson’s
general description as being present.
â— On February 23, 2007, police
searched Wilson’s home and found a digital scale with a residue of a controlled
substance on it.
â— On May 31, 2008, officers searched
a home and found “indications†that Wilson had sold drugs there.
Champness
also opined that Wilson possessed the drugs in room 221 and maintained the
room as a place for selling drugs for the benefit of and in association with
his gang. In support of this, he
testified that illegal drug sales are a common crime among the Country Boy
Crips. Street-level sales of the drugs
“are primarily controlled by these gang members.†The America’s Best Inn was outside Country
Boy Crips territory, but Champness stated that there was a trend among the
County Boy Crips to work outside their territory to avoid prosecution. Money from drug sales often is “funneled back
into the gang,†and used to pay for guns, bail, more drugs to sell, and
apartments or houses to use as safe houses or for drug storage. Even when drug profits are not returned to
the gang, the sales benefit the gang because they allow “that individual who is
selling to continue in a lifestyle—a gangster lifestyle†and to conduct other
illegal activities, enhancing the member’s reputation and the gang’s
reputation. Wilson’s activities at the
hotel room would promote criminal gang conduct by providing “a place to
distribute or at least package the very narcotics that they are selling, the
monies generated from that benefiting the gang.†Champness said many Country Boy Crips members
had told him they were aware of the gang’s criminal activities.
On
cross-examination, Champness testified that people sometimes leave gangs. On redirect, however, he said that if a
person who was a gang member in the past commits a “crime that is consistent
with a gang crime†now, the person is probably still a gang member.
Jacob
Gallegos testified for the defense. He
said that a couple of days after Martin Luther King Day in 2010 (i.e., in
January, over a month before police searched Wilson’s room), he stayed for two
nights at a hotel on East Brundage Lane at Weedpatch Highway. On the second night, a man and woman who were
not Wilson and Williams knocked on Gallegos’s door. The man said the police were searching his
room and had told him to stay away during the search. He offered Gallegos $20 to drive him to a
7-Eleven. Gallegos accepted. When he returned, he saw police officers
searching a room.
Devon
Steen testified for the defense. He had
been Wilson’s friend for 13 years. Steen
believed Wilson had always held down a job and was a family man. Steen testified that gang members were bad
people with no morals; he believed Wilson shared this view and was not a gang
member. Steen had never heard of the
Country Boy Crips. He had never seen the
“C†and “B†tattoos on the backs of Wilson’s arms, although the two had often
lifted weights together. Steen had never
seen or heard of Williams; Wilson spoke to him only of Wilson’s children’s
mother. He remembered that, years ago,
Wilson had a girlfriend named Gina.
The
jury found Wilson guilty of all counts and found the gang-enhancement
allegations true. The court found one of
the prior-prison-term allegations true and dismissed the other. The court also found Wilson to have violated
his probation in case No. BF123662A.
Wilson
received an aggregate sentence of 10 years, consisting of five years for
possessing cocaine base for sale, four years for the gang enhancement on that
count, and one year for the prior-prison-term enhancement on that count. For maintaining a place for selling, giving
away, or using a controlled substance, the court imposed a sentence of three
years plus four years for the gang enhancement, all stayed under
section 654. For the substantive
gang-participation offense, the court imposed a sentence of three years, stayed
under section 654. A term of two
years for the underlying offense in the probation case also was imposed, to be
served concurrently with the term for the possession count.
DISCUSSION
I. Sufficiency
of evidence of maintaining place for selling, using, or giving away drugs
Wilson
argues that insufficient evidence was presented at trial to prove the elements
of Health and Safety Code section 11366, maintaining a place for the
purpose of unlawfully selling, giving away, or using a controlled
substance. “‘When considering a challenge to
the sufficiency of the evidence to support a conviction, we review the entire
record in the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is reasonable, credible,
and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’â€
(People v.
D’Arcy (2010) 48 Cal.4th 257, 293.)
The elements of the
maintaining-a-place offense are that the defendant (a) opened or
maintained a place (b) with a purpose of continuously or repeatedly using
it for selling, giving away, or using a controlled substance. (People v. Hawkins (2004) 124
Cal.App.4th 675, 680; People v. Horn (1960) 187 Cal.App.2d 68, 73; People
v. Holland (1958) 158 Cal.App.2d 583, 588-589.) Evidence of a
single instance of drug use or sales at the place, without circumstances
supporting a reasonable inference that the place was used for the prohibited
purposes continuously or repetitively, does not suffice to sustain a
conviction. (People v. Hawkins, supra, at p. 682; People v. Shoals
(1992) 8 Cal.App.4th 475, 491-492; People v. Horn, supra, at
pp. 73-74; People v. Holland, supra, at pp. 588-589.)
Wilson
argues that, although the evidence found in room 221 “supports a
conclusion that the cocaine base in the motel room was possessed for sale, it
does not suffice to establish that [Wilson], or anyone else, sold cocaine base
on a continuous and repeated basis in this motel room.†He says, “there were no indicia that
[Wilson], or anyone else, made a single drug sale, let alone repeated and
continuous drug sales out of room 221.
There was no evidence of persons visiting the room. Nor was there any evidence of the use of
lookouts or passwords showing an attempt to restrict access to potential
customers. Similarly, there was no
evidence that anyone was given drugs from the room on a single occasion, let
alone repeatedly and continuously. Nor
was there evidence that anyone was using drugs in the room repeatedly or
continuously.†Consequently, Wilson
argues, the prosecution failed to prove that he had a purpose of continuously
or repeatedly using the room to sell, give away, or use a controlled
substance.
The
People’s discussion of the evidence supporting the maintaining-a-place charge
is as follows:
“Although there were boxes of plastic
baggies in room 221, presumably for the future packaging of cocaine base,
the 266.8 grams of cocaine base, enough for 3,000 ‘usable amounts’ [citation],
was not conveniently packaged in small, portable bindles. In addition to the unpackaged, large quantity
of cocaine base, there was a digital gram scale, some razor blades, and
additional plastic bags. Some of the
plastic bags had been torn and discarded in the room, indicating that some of
the cocaine base had been pre-bindled, sold, and then used in the room. Cocaine base residue was found on the razor blades
and the digital scale, again suggesting that sales or use had occurred in the
room. [Wilson’s] drug money was also
located in the room. Although there was
no evidence of other persons visiting the room or any direct evidence of sales
in the room, the surrounding circumstances, and particularly the presence of
drug paraphernalia and drug residue in the room, indicate that the sales and
use of the cocaine base took place in room 221, not elsewhere. [¶]
Significantly, [Wilson] did not possess any bindles of cocaine base on
his person or in his car when he was contacted by law enforcement. Had [Wilson] possessed such bindles, it might
have suggested that [he] intended to sell the cocaine base on the streets and
not in room 221. But the fact that
[Wilson] did not possess cocaine base outside of room 221 lends further
support to the finding that the sales occurred in the hotel room. [¶] In
light of [Wilson’s] cocaine base possession and the other circumstances
pointing to his culpability, there was ample evidence to support the jury’s
determination that [Wilson] violated Health and Safety Code
section 11366.â€
Wilson
has the better of this dispute. The
evidence showed clearly that room 221 was being used to store and package
cocaine base for sale, but it showed nothing further. The fact that some of the cocaine base had
not yet been packaged is not evidence that it was going to be sold in the
room. It is at least as likely that it
would be packaged in the room and sold elsewhere. The presence of a scale and razor blades with
cocaine base particles adhering to them simply showed that those items had
already been used for dividing and measuring drugs for packaging. It shows nothing one way or the other about whether
drug sales or use took place in the room.
That “[s]ome of the plastic bags had been torn and discarded in the
room†did not “indicat[e] that some of the cocaine base had been pre-bindled,
sold and then used in the room.†The
evidence was that bags with the corners torn off were found in the room; the
police expert testified that this was an indication that packaging had taken
place, since corners of bags are used to package cocaine base. None of the testimony indicated that empty
corners of bags, which once might have been bindles, were found. The People’s reference to “drug
paraphernalia†can only be a reference to the scale, razor blades, and
packaging materials. No pipes, for
example, were found. The “residue†the
people refer to is the white powder on the scale and razor blades; no burned
residue was found. The fact that Wilson
had no bindles on his person when arrested is not evidence of anything, except
that he was not transporting his product at that moment.
The
$11,400, mostly in small bills, indicated that Wilson had already sold a
substantial quantity of drugs. Combined
with the lack of evidence of large numbers of visitors to the room, the cash
suggests that Wilson was selling elsewhere.
The
evidence the People point to shows at the
most that two theories are equally likely to be true: that Wilson used the room just for storing
and packaging drugs, and that he also conducted a sales operation there. This is not enough. The jury was properly instructed with CALJIC
No. 2.01: “[I]f the circumstantial
evidence as to any particular count permits two reasonable interpretations, one
of which points to the defendant’s guilt and the other to his innocence, you
must adopt that interpretation that points to the defendant’s innocence and
reject that interpretation that points to his guilt.â€
475, is helpful. Shoals was convicted of
possession of cocaine base for sale and maintaining a place for selling or
using a controlled substance. (
contained 21 baggies of cocaine base; $533.32 in cash; personal property
indicating that a man, woman and child were living there; and testimony that
the hotel’s switchboard handled heavy telephone traffic to and from the room
day and night. (Id. at pp. 481-482.)
The Court of Appeal held that there was insufficient evidence to sustain
the maintaining-a-place conviction. (
of narcotics is not sufficient to establish the maintaining-a-place
offense. (Id. at p. 491.) There
is no presumption “that the place where the controlled substance is kept was
opened or maintained as a place for its unlawful sale, use, or gift.†(Id.
at p. 492.) There was evidence that
the room was a home for the man, woman and child; there was no evidence of
people visiting the room in unusual numbers or at unusual times; and there was
no evidence of people under the influence on or around the premises, lookouts,
or use of passwords, drug paraphernalia or drug residue. (Ibid.) The present case is similar. The evidence showed that Wilson had been
living in the room for about a month with his girlfriend, and that he had been
keeping and packaging drugs there. Apart
from this, there were no indicia of continuous or repeated acts of use, gift,
or sale of drugs in the room. The
“residue†and “paraphernalia†referenced by the People were only evidence of
measuring and packaging in this instance, not indicia of use, as we have said.
For
these reasons, we conclude that the conviction on count 2 was not
supported by sufficient evidence. The
conviction on that count is reversed.
II. Fees
and penalties for maintaining a place
Pursuant
to Health and Safety Code section 11372.5, the court ordered Wilson to pay
a $50 drug lab fee and a $140 penalty assessment as part of his sentence for
maintaining a place for selling drugs.
The parties agree that this fee and assessment should be stricken
because they do not apply to that offense.
Pursuant to Health and Safety Code section 11372.7, the court
ordered Wilson to pay a drug program fee of $100 and another penalty assessment
of $280. The parties agree that this fee
and assessment should have been stayed under section 654 because the
remainder of the sentence for that count was stayed.
In
light of our reversal of the maintaining-a-place conviction, this issue is
moot.
III. Sufficiency
of evidence for gang offense and enhancements
Wilson
argues that the prosecution did not present sufficient evidence to prove the
gang offense defined in section 186.22, subdivision (a), or the gang
enhancement defined in section 186.22, subdivision (b).
subdivision (a)
Section 186.22,
subdivision (a), provides:
“Any
person who actively participates in any criminal street gang with knowledge
that its members engage in or have engaged in a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in any felonious
criminal conduct by members of that gang, shall be punished by imprisonment in
a county jail for a period not to exceed one year, or by imprisonment in the
state prison for 16 months, or two or three years.â€
To
prove that a defendant “‘actively participates’†in a gang, the prosecution
must show participation that is “more than nominal or passive.†(People
v. Castenada (2000) 23 Cal.4th 743, 747.)
The active participation must also be shown to be current, meaning “at
or reasonably near the time†of the felonious criminal conduct that the
defendant promotes, furthers, or assists.
(People v. Garcia (2007) 153
Cal.App.4th 1499, 1509.) Wilson contends
that the evidence did not show his participation was active or current on
March 2, 2010.
We
disagree. Wilson claimed gang membership
seven times to booking officers, most recently in 2008, 21 months before his
arrest in this case. During those 21
months, Wilson was ordered to spend a year in county jail as a condition of
probation in case No. BF123662A, so he had even fewer than 21 months of freedom
between the time of his last admission of gang membership and the commission of
the current offense. Further, there was
physical evidence of Wilson’s current gang participation at the scene of the
current offense itself: the sign and
note bearing Wilson’s gang moniker, Holiday.
The possession-for-sale offense was a characteristic gang crime,
according to the police expert. When
confronted with a seven-time admitted gang member, bearing gang tattoos,
committing a characteristic gang crime in a room where a sign and another
writing showed his gang moniker, the jury could reasonably find that the
defendant was a current, active participant in a gang.
Wilson
argues that the evidence that he claimed gang membership seven times while
being booked into jail shows nothing because he “could have claimed to be a
County Boy Crip (if in fact this is what he actually claimed as opposed to what
was written down or how it was interpreted by Officer Champness) out of an
abundance of caution for his safety due to being acquainted with some Country
Boy Crips, and not because he was a member of the gang himself. This is the logical inference because
[Wilson] has never been a documented gang member.â€
The
idea that Wilson claimed he was a Country Boy Crip even though he was not is
contradicted by the other evidence.
Wilson had gang tattoos on his arms and a sign and a note with his gang
moniker in his room. As for not being a
“documented gang member,†Wilson appears to mean that he was never before
ordered to register as a gang
member. There is, of course, no
requirement that a defendant must be a registered gang member before he can be
found to have violated section 186.22, subdivision (a).
Wilson
says the tattoos on his arms do not show gang membership because “[i]t appears
just as likely that this was actually a tattoo of a former girlfriend’s
initials.†It is not just as
likely. The prosecution presented
photographs of the tattoos; opinion testimony that the letters were “C†and “Bâ€
and that many County Boy Crips had tattoos like these; and a photograph of
another Country Boy Crip with similar tattoos in the same places on his
arms. On the other side of the balance
was only defense counsel’s opinion that the “C†looked like a “G†and a
witness’s remark that Wilson once had a girlfriend named Gina, whose last name
was unknown. The evidence that the
tattoos were indicative of Country Boy Crips membership was strong, and the
evidence that they stood for someone named Gina B. was nearly nonexistent.
Wilson
next argues that the evidence did not prove he had knowledge that members of
his gang “engage in or have engaged in a pattern of criminal gang
activity .…†(§ 186.22,
subd. (a).) Again, we disagree. The parties stipulated that the Country Boy
Crips are a criminal street gang within the meaning of section 186.22. The court instructed the jury that members of
the Country Boy Crips have engaged in a pattern of criminal gang activity. Officer Champness testified that members of
the Country Boy Crips were aware of the gang’s pattern of criminal gang activity. Since Wilson was shown to be a current,
active participant in the County Boy Crips, the jury could infer that he also
had knowledge of the gang’s criminal activities. Further, the current offense was a
characteristic gang offense that Wilson committed while items bearing his gang
moniker were in his room. Champness
testified about other incidents in which Wilson was arrested with drugs in his
possession and stopped while in the company of fellow gang members. In light of all this, the jury could
reasonably find that Wilson was not under the mistaken impression that the
Country Boy Crips are law-abiding, but instead was aware of the fact that they
engage in a pattern of criminal gang activity.
Finally,
Wilson argues that the prosecution did not prove that he “willfully promote[d],
further[ed], or assist[ed] in any felonious criminal conduct by members of†his
gang. (§ 186.22,
subd. (a).) His argument is based
on the view that this language requires proof that other gang members committed an offense and that the defendant
aided and abetted that offense. In the
present case, the only offenses proved were Wilson’s own current offenses in
which no other gang members were shown to be involved; so under this view, a
violation of section 186.22, subdivision (a), cannot be established.
This
court has rejected the view on which Wilson relies. (People
v. Ngoun (2001) 88 Cal.App.4th 432, 436-437; People v. Salcido (2007) 149 Cal.App.4th 356 (Salcido).) We concluded that
the element that requires promoting, furthering, or assisting in felonious
criminal conduct by gang members can be established by proof that the defendant
was a direct perpetrator of that felonious conduct. It is not necessary to show that there was
another gang member who committed an offense and that the defendant aided and
abetted that other gang member. (
pp 367-368.) Our reasoning was that
we could not rationally ascribe to the Legislature “the intention to deter
criminal gang activity by the palpably irrational means of excluding the more
culpable and including the less culpable participant in such activity.†(Ngoun,
supra, at p. 436.) We stand by
this conclusion now. The Fourth District
Court of Appeal reached the same conclusion in People v. Sanchez (2009) 179 Cal.App.4th 1297, 1301-1308.
Wilson
argues that our view in Ngoun and
made by the Supreme Court in People v.
Castenada, supra, 23 Cal.4th at page 749: “[S]ection 186.22(a) limits liability to
those who promote, further, or assist a specific felony committed by gang
members and who know of the gang’s pattern of criminal gang activity. Thus, a person who violates section 186.22(a)
has also aided and abetted a separate felony offense committed by gang
members .…†Similarly, “[A] person
liable under section 186.22(a) must aid and abet a separate felony offense
committed by gang members.†(
we stated that these remarks are “often misinterpreted†and do not mean what
they may appear to mean on the surface.
(Salcido, supra, 149
Cal.App.4th at p. 367.) They are
“part of the Supreme Court’s explanation that section 186.22,
subdivision (a), avoids punishing mere association with a disfavored
organization and satisfies the due process requirement of personal
guilt .…†(Ibid.) The Supreme Court did
not intend, in our view, to hold that a defendant cannot satisfy the element
requiring him to further a felony by committing that felony himself instead of
helping someone else commit it. That
would be an absurd result. When
interpreting statutes, we avoid interpretations that would lead to absurd
consequences. (
(2001) 26 Cal.4th 995, 1003.)
This
issue is currently pending in the California Supreme Court. (People
v. Rodriguez, review granted Jan. 12, 2011, S187680.)
subdivision
Section 186.22,
subdivision (b), provides a sentence enhancement for “any person who is
convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members .…†Wilson argues that the prosecution failed to
present sufficient evidence to prove the enhancement allegations against
him. We hold that the evidence was
sufficient.
Wilson
first argues that the evidence did not prove that he committed the current
offense for the benefit of, at the direction of, or in association with his
gang. He points out that Officer
Champness testified that if a Country Boy Crips member possessed cocaine base
for sale, the offense would be for the benefit of, at the direction of, or in
association with the Country Boy Crips.
Wilson argues that this testimony is not substantial evidence that
for the benefit of, at the direction of, or in association with the Country Boy
Crips, because it was not proved that he was a member of the gang. He relies on the argument discussed above
that the prosecution did not show that he was a current, active participant in
the gang.
As
we have already explained, there was substantial evidence that Wilson was a
current, active participant in the Country Boy Crips. In particular, the fact that the room
contained materials bearing his gang moniker warrants mentioning again
here. The jury could reasonably find
that Wilson possessed the drugs for the purpose of sale for the benefit of and
in association with his gang.
Wilson
next argues that the prosecution failed to show by substantial evidence that he
acted with the specific intent to promote, further, or assist in any criminal
conduct by gang members. This argument
is based on the view, discussed above, that the “promote, further or assistâ€
language requires proof that a defendant acted in concert with other gang
members, whom he aided and abetted. We
reject this argument for the reasons already stated. It is no more likely that the Legislature
intended to punish aiders and abettors more severely than direct perpetrators
under section 186.22, subdivision (b), than that it intended this
under section 186.22, subdivision (a).
IV. Section 4019
conduct credits
Wilson
argues that the trial court violated the equal protection provisions of the
state and federal Constitutions by failing to award presentence conduct credits
in case No. BF131206A based on the formula in a version of
section 4019 that became effective after the date of his current offenses. The Supreme Court recently rejected the
argument on which Wilson relies. (
On
March 2, 2010, the date of Wilson’s crimes, section 4019 provided
that if a prisoner in county jail before sentencing complied with the jail
rules and performed labor as assigned, then the prisoner would receive six
days’ credit for each four days in custody.
(Former § 4019, subd. (f).)
In other words, the prisoner would get one day off for each two days
served. Effective July 1, 2011, the
Legislature amended section 4019 to increase the credits, with exceptions
not here applicable, to one day off for each one day served. (Stats. 2011, ch. 15, § 482.) Wilson was sentenced on May 12,
2011. The court calculated credits in
accordance with the version of section 4019 in effect at that time, i.e.,
at the rate of six days of credit for each four days served.
after the parties’ briefs in this appeal were filed. The Supreme Court held that equal-protection
principles do not require the amended statute to be applied retroactively. (Brown,
supra, 54 Cal.4th at p. 330.)
The court’s reasoning was that the Legislature’s purpose in increasing
the incentive for good behavior is “not served by rewarding prisoners who
served time before the [additional] incentives took effect and thus could not
have modified their behavior in response.â€
It followed that prisoners in custody before the amended statute took
effect and those in custody afterwards were not similarly situated for
equal-protection purposes. (
calculation of presentence conduct credits.
V. Misapplication of section 2933.1
In
the abstract of judgment, the trial court checked a box indicating that
section 2933.1 applied to Wilson’s presentence conduct credits in case
No. BF131206A. Section 2933.1
limits presentence conduct credits to 15 percent of the time in custody for
violent felonies. At the same time, the
court did not check the box showing that credits were awarded pursuant to
section 4019. Wilson and the People
agree that Wilson’s current offenses are not violent felonies within the
meaning of section 2933.1, and that the abstract should show that credits
were awarded pursuant to section 4019, not section 2933.1. We order the abstract of judgment to be
amended to correct the error. The
correction does not affect the amount of credit actually awarded, which Wilson
does not challenge.
VI. Driver’s
license suspension
As
part of the sentence for possession of cocaine base for sale, the trial court
suspended Wilson’s driver’s license for one year beginning March 7, 2011,
pursuant to Vehicle Code section 13202.
Vehicle Code section 13202 provides for license suspension when a
defendant is convicted of an offense related to controlled substances and “the
use of a motor vehicle was involved in, or incidental to, the commission†of
the offense. (Veh. Code, § 13202,
subds. (a), (b).) Wilson argues
that this was error, because there was no evidence connecting a vehicle with
the offense.
The
evidentiary standard for a showing of vehicle use “incidental†to a crime is
low. “‘[I]ncidental’ implies only a weak
or even unintentional connection; it may be defined as ‘subordinate,
non-essential, or attendant in position or significance .…’ [Citation.]â€
(People v. Monday (1990) 224
Cal.App.3d 1489, 1492.) Use of a vehicle
can properly be found to be incidental to an offense even if the vehicle was
not “used†“in†the offense within the meaning of Vehicle Code
section 13350. (
drug-possession offense where the defendant possessed the drugs on his person
while driving his car. (
The
People argue as follows:
“[Wilson’s]
use of a motor vehicle was incidental to the commission of his offenses. [Wilson] was originally contacted by law
enforcement when he was driving his vehicle.
He possessed $425 and a hotel key card on his person to access the room
in which his cocaine base was presently located. Although [Wilson] did not possess any
narcotics while in his vehicle like in Monday,
he possessed access to his contraband
while in his vehicle. The court could
reasonably find that the vehicle was used to travel to and from the hotel. The amount of contraband that [Wilson]
possessed could have easily been transported in his vehicle.â€
The
only link between Wilson’s car and the crimes is that he had the key to the room
where the drugs were found in his pocket while he was driving. This is not enough. If having “access †by car to contraband were
enough to trigger Vehicle Code section 13202, then the provision would
apply in every case in which a defendant commits a drug offense and has access
to a car, regardless of whether there is any evidence that the defendant ever
used the car to travel to or from or with the drugs.
The
People argue that Wilson should not be allowed to raise this issue on appeal
because he did not object in the trial court.
Wilson argues that, in light of the lack of evidence linking the car to
the crimes, the license suspension was an unauthorized sentence and falls
within the rule that unauthorized sentences can be challenged for the first time
on appeal. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
The
rule that an unauthorized sentence can be raised for the first time on appeal
does not mean that any sentence claimed to be improperly imposed can be
challenged for the first time on appeal.
“[T]he ‘unauthorized sentence’ concept constitutes a narrow exception to
the general requirement that only those claims properly raised and preserved by
the parties are reviewable on appeal.†(
354.) A sentence is “generally
‘unauthorized’ where it could not lawfully be imposed under any circumstance in
the particular case. Appellate courts
are willing to intervene in the first instance because such error is ‘clear and
correctable’ independent of any factual issues presented by the record at
sentencing.†(Ibid.) Claims that are
waived by failure to raise them in the trial court are those that “involve
sentences which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner.â€
(Ibid.) Examples include the imposition of probation
conditions said to be unreasonable (id.
at p. 355), and “cases in which the stated reasons [for the sentence]
allegedly do not apply to the particular case, and cases in which the court
purportedly erred because it double-counted a particular sentencing factor,
misweighed the various factors, or failed to state any reasons or give a
sufficient number of valid reasons†(id. at
p. 353). In general, “complaints
about the manner in which the trial court exercises its sentencing discretion
and articulates its supporting reasons cannot be raised for the first time on
appeal.†(Id. at p. 356.)
We
agree with Wilson that the license suspension was unauthorized and can be
raised for the first time on appeal.
There is no dispute about the facts:
The only link between the crimes and Wilson’s car is that he had the
room key in his pocket while driving.
Our holding is that, in light of those facts, the court could not, as a
matter of law, find that any vehicle use was incidental to the offenses. The dispute is not about the court’s choice
of options within the range of its discretion.
There is nothing the court could have done to avoid error, short of not
imposing the suspension, if defense counsel had brought the matter to the trial
court’s attention. For these reasons,
the matter is suitable for resolution on appeal despite the lack of objection
in the trial court.
The
license suspension is reversed.
VII. Restitution
fine
In
the violation-of-probation case (No. BF123662A), the court imposed a
restitution fine of $200 pursuant to section 1202.4,
subdivision (b). Wilson argues that
the abstract of judgment is confusing on this point and could be interpreted to
mean that he must pay two restitution fines of $200 each under
section 1202.4, subdivision (b).
He requests that the abstract be corrected or clarified.
Item 9
of the abstract of judgment states that Wilson must pay a restitution fine of
$200 pursuant to section 1202.4, subdivision (b). Item 11 of the abstract states: “THE TOTAL UNPAID BALANCE OF $200.00 IS DUE
PER PC 1202.4(B).†We agree with the
People that the abstract clearly indicates a $200 restitution fine under
section 1202.4, subdivision (b), with the entire balance, $200,
unpaid. The abstract is not incorrect or
unclear. No modification is needed.
VIII. Date of
offense in violation-of-probation case
The
abstract of judgment in the violation-of-probation case (No. BF123662A)
shows the date of conviction for the underlying offense, possession of a
firearm by a felon, as March 7, 2011.
The parties agree that the correct date is September 2, 2008. We order the court to correct the error.
DISPOSITION
The
conviction on count 2, maintaining a place for selling, giving away, or
using a controlled substance, is reversed.
The driver’s license suspension imposed under Vehicle Code
section 13202 is also reversed.
In
addition, the superior court shall modify the abstract of judgment as
follows: (1) the designation of
section 2933.1 as the basis of the award of conduct credits must be
removed and section 4019 must instead be shown as the basis of the conduct
credits awarded; and (2) the correct date of conviction, September 2,
2008, must be shown for the violation of former section 12021,
subdivision (a)(1). The superior
court shall forward the amended abstract to the appropriate prison authorities.
The
judgment otherwise is affirmed.
_____________________
Wiseman,
Acting P.J.
WE CONCUR:
_____________________
Gomes,
J.
_____________________
Poochigian, J.
name="_ftn1" title=""> [1]Further statutory references are to the Penal Code, unless otherwise
indicated.
