P. v. Mercado

Filed 8/21/08 P. v. Mercado 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne McGinnis and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Police officers stopped defendant Pedro Mercado, a member of the Townsend Street gang, and found him in possession of over 3 grams of marijuana, 900 milligrams of cocaine base, and 400 milligrams of methamphetamine. Defendant admitted to the officers that he sold the cocaine. He claimed the marijuana and methamphetamine were only for his personal use, but conceded that if someone asked to buy either substance he would sell it as well.

The prosecution charged defendant with one count each of possessing marijuana, cocaine base, and methamphetamine for the purpose of sale, plus street terrorism in violation of Penal Code section 186.22, subdivision (a) (all further statutory references are to the Penal Code). It also alleged defendant committed the three drug offenses for the benefit of, at the direction of, or in association with the Townsend Street gang. ( 186.22, subd. (b)(1).) A jury returned guilty verdicts on all four counts and true findings on the street gang enhancement allegations. The court denied a request for probation and sentenced defendant to a three-year term on count 1, plus concurrent two-year terms on the remaining charges, striking the enhancements for sentencing purposes.

On appeal, defendant contends the trial court erred by (1) denying his pretrial motion to suppress evidence ( 1538.5), (2) admitting testimony from a criminal street gang expert, (3) denying his request for probation, (4) imposing a felony sentence on count 4, and (5) failing to stay the sentences imposed on counts 2, 3, and 4. He also challenges the sufficiency of the evidence on the street terrorism charge and criminal street gang allegations. Since all of his claims lack merit, we affirm.

DISCUSSION

1. The Motion to Suppress Evidence

a. Background

At trial, the officers testified that after his detention defendant said he had some marijuana and consented to a search resulting in the further discovery of cocaine base and methamphetamine. Before trial, defendant filed a motion to suppress evidence limited to the lawfulness of his initial detention.

At a hearing on the motion, detective Reynoso testified he and sergeant Alfaro were in a marked patrol car on the 800 block of South Townsend Street shortly before 9 p.m. one July evening. Reynoso described the area as well known for narcotics sales and the Townsend Street gang.

The officers saw defendant on the east side of the street. They watched defendant as he continuously observed a vehicle proceeding along the street and then repeat this routine when a second vehicle drove by. Based on his training and experience in drug trafficking, Reynoso testified defendants monitoring of vehicular traffic is an indicator that he may be involved in illegal drug sales.

Reynoso drove towards defendants location and shined the patrol cars spotlight on him. Defendant appeared surprised, then briskly walked away from the police car. As he did so, defendant twice reached into his pants pocket and then moved his hand to the back of his baseball cap. Reynoso testified persons involved in illegal drug sales frequently hide contraband either in their pants pocket or inside the elastic band of a hat.

Alfaro stepped out the patrol car and followed defendant on foot. The officers detained defendant. The court denied the motion.

b. Analysis

Focusing solely on Reynosos observations of his conduct, defendant contends the police stopped him based on an unparticularized suspicion or inarticulate hunch, neither of which justified the detention . . . . This analysis misconstrues the standard for a valid temporary investigative detention.

[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. [Citation.] (Illinois v. Wardlow (2000) 528 U.S. 119, 123 [120 S.Ct. 673, 145 L.Ed.2d 570].) This is less demanding . . . than probable cause and requires a showing considerably less than preponderance of the evidence, but it does require that an officer . . . be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity. [Citation.] (Id. at pp. 123-124, fn. omitted.)

Courts consider the totality of the circumstances . . . to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. [Citation.] (United States v. Arvizu (2002) 534 U.S. 266, 273 [122 S.Ct. 744, 151 L.Ed.2d 740].) [P]resence in an area of expected criminal activity (Illinois v. Wardlow, supra, 528 U.S. at p. 124; see also People v. Souza (1994) 9 Cal.4th 224, 240), [t]he time of night (People v. Souza, supra, 9 Cal.4th at p. 241), and nervous, evasive behavior (Illinois v. Wardlow, supra, 528 U.S. at p. 124) are relevant factors for a court to consider in determining whether reasonable suspicion exists.

In addition, the reasonable suspicion assessment allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. [Citations.] (United States v. Arvizu, supra, 534 U.S. at p. 273.) For example, in People v. Leyba (1981) 29 Cal.3d 591, the Supreme Court held that a deputy sheriffs observation of blinking of headlights by two cars late at night, one of which was in the parking lot of a closed school, when evaluated in the light of the officers training and experience, and his knowledge of . . . gang activity and the occurrence of . . . school burglaries in the area justified a detention. (Id. at p. 600.) Finally, [t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. [Citation.] (People v. Foranyic (1998) 64 Cal.App.4th 186, 189.)

Reynoso described his extensive training and experience in law enforcement in general and on the possession and sale of controlled substances specifically. This testimony, in addition to the evidence concerning the frequency of illegal drug sales and gang activity in the area, the time of day, plus defendants behavior both before and after the officers approached him, provided a particularized and objective basis to support the officers investigative detention of defendant in this case. Consequently, the trial court properly denied his motion to suppress evidence.

2. The Criminal Street Gang Testimony

Defendant attacks his conviction for street terrorism and the street gang enhancement findings on the drug offenses on two grounds. First, he claims the trial court erred by allowing Reynoso to express his opinion that defendant belonged to Townsend Street and the drug sales benefitted the gang. Alternatively, defendant contends the evidence fails to support a finding he actively participated in the Townsend Street gang or committed the drug offenses for the benefit of or in association with the gang with the intent to further its criminal activity.

a. Background

Sergeant Alfaro testified that, before defendants arrest in this case, he had contacted or observed defendant in the Townsend Street gangs territory on four occasions. During two of these encounters, Alfaro completed field identification cards. On one occasion, defendants clothing included a dark blue shirt and dark blue pants. He told Alfaro that he kicks back with Townsend Street, using the nickname Smarty. On two other occasions, defendant ran when Alfaro spotted him standing in the courtyard of an apartment complex at 806 South Townsend. Another police officer, Edward Gutierrez, testified that one night in June, he arrested defendant for possession of cocaine in the alley that runs between the 700 block of South Townsend Street and Raitt Street.

When arrested on the current charges, defendant was also wearing a dark blue shirt. Agreeing to speak with the officers after the arrest, he admitted being an affiliate of Townsend Street and repeated his nickname was Smarty.

Reynoso testified as an expert witness on illegal drug activity and street gangs. His training and experience concerning street gangs included: Conversations with jail inmates while working as a correctional officer at the jail in Santa Ana; academy courses; participation as a police officer in a weed and seed street gang narcotics enforcement unit that investigated Santa Ana street gangs; his training of other police officers about street gangs; involvement in a joint state and federal task force focused on the Townsend Street gang that included wiretapping members cellular telephone conversations; plus conversations with other police officers, citizens during community meetings, informants, and gang members.

He described the Townsend Street gangs history, its territory, membership, symbols, and colors, which he identified as navy blue, sometimes white. He testified the gangs primary activities as including illegal drug sales, vandalism, felony assaults, murder, and burglaries. Through Reynoso, the prosecution introduced the conviction records of two Townsend Street gang members who each pleaded guilty to possessing cocaine for sale and street terrorism.

Reynoso opined defendant belonged to Townsend Street. In support of this opinion, he cited the following material: His personal contacts with defendant which, besides the current arrest, included the two encounters when Alfaro completed the field identification cards; telephone calls received from citizens in the Townsend Street area complaining that an individual by the name of Peter or Smarty was causing problems; Reynosos review of reports on defendants police contacts; a photograph seized during a search of an apartment located in the 806 South Townsend complex that depicted defendant with documented Townsend Street gang members; defendants admission that
his cousin is a Townsend Street gang member; another Townsend Street member is his sisters boyfriend; defendant lived at the same address as his sister and her boyfriend when arrested on the current charges; and the cellular telephone found on defendant during the arrest contained the names and phone numbers of gang members.

Presented with a hypothetical question based on the facts of this case, Reynoso opined: (1) Selling drugs on Townsend Street was for benefit of, at the direction of, or in association with the gang because the gang gain[s] money to

purchase . . . drugs and guns and to promote . . . parties and the activity tell[s] the citizens who . . . is in control of that area; (2) the possession for sale of controlled substances promoted, furthered, or assisted the gang; and (3) an individual possessing the drugs for sale was an active Townsend Street gang member.

b. Admissibility of Reynosos Opinion Testimony

First, defendant argues the trial court erred by allowing Reynoso to express opinions that he belonged to Townsend Street and his drug offenses benefitted the gang. As for his gang membership, he claims the opinion essentially was based on [his] presence in the area and the fact . . . [he] . . . apparently knew people . . . who were associated with the gang. Defendant attacks the opinion concerning his actions benefitting the gang, asserting it was based on [Reynosos] belief that anyone who sold drugs on Townsend Street had to have obtained those drugs from [gang] members . . . .

The use of expert testimony in the area of gang sociology and psychology is well established. [Citations.] The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.] Such evidence is admissible even though it encompasses the ultimate issue in the case. [Citations.] (People v.
Olguin (1994) 31 Cal.App.4th 1355, 1370-1371.) Subject to the trial courts discretion, an expert may render opinion testimony on the basis of facts given in a hypothetical question that asks the expert to assume their truth[] [citation] if the question [is] rooted in facts shown by the evidence, or where the opinion is premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] (People v. Gardeley (1996) 14 Cal.4th 605, 618.) [P]ersonal observations and experience, the observations of other officers . . ., police reports, . . . conversations with other gang members, photo[s] of [the] defendant . . . with other gang members (People v. Gamez (1991) 235 Cal.App.3d 957, 967, disapproved on another ground in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10), plus corroborative information from other citizen informants (People v. Gonzalez (2006) 38 Cal.4th 932, 949), are types of sources upon which a gang expert may draw in forming an opinion.

As can be seen from the foregoing description of the trial evidence, an adequate foundation existed for Reynosos opinions. This evidence included his personal knowledge from prior contacts with defendant that included his mode of dress and statements concerning gang activity, police reports, citizen reports, family ties with gang members, and a photograph. Defendants claims to the contrary are premised on a circumscribed summary of that testimony, which studiously ignores the bulk of the Reynosos statements on direct examination.

The authority on which defendant relies is equally unpersuasive. First, he repeatedly cites to an opinion ordered depublished by the Supreme Court long before the filing of the briefs in this appeal. (People v. Reynolds (May 5, 2006) E036242, opn. ordered nonpub. Aug. 23, 2006.) Second, he relies on People v. Killebrew (2002) 103 Cal.App.4th 644, which is distinguishable. Killebrew condemned the admission of a gang experts opinion where he effectively testified to the subjective knowledgeand
intent of gang members which the court described as the type of opinion that did nothing more than inform the jury how [the expert] believed the case should be decided. (Id. at p. 658.) Thus, Killebrew has been described as merely prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial. [Citations.] (People v. Gonzalez, supra, 38 Cal.4th at p. 946; see also People v. Garcia (2007) 153 Cal.App.4th 1499, 1513.) That is not what occurred here.

c. Sufficiency of the Evidence

Describing Reynosos expert testimony as conclusory and lack[ing] foundation, plus asserting [n]o other evidence was offered to prove either his gang membership or his motivation for the drug offenses, defendant contends the evidence was insufficient to prove he was an active participant in the Townsend Street gang or that he committed the [drug] offenses for the benefit of, at the direction of or in association with a criminal street gang with the specific intent to further criminal activity by . . . Townsend Street . . . . For two reasons, this claim lacks merit as well.

In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) In applying this standard, courts presume the existence of every fact that is reasonably deducible from the evidence and abstain from either reweighing the evidence or reevaluating witness credibility. (People v. Guerra, supra, 37 Cal.4th at p. 1129.) So long as the circumstances reasonably justify the jurys findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] (Ibid.)

In light of these principles, the burden of establishing the evidence fails to support a judgment of conviction falls on the defendant. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) [T]o prevail on a sufficiency of the evidence argument, the defendant must present his case to us consistently with the substantial evidence standard of review. That is, the defendant must set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People, and then must persuade us that evidence cannot reasonably support the jurys verdict. [Citation.] If the defendant fails to present us with all the relevant evidence, or fails to present that evidence in the light most favorable to the People, then he cannot carry his burden of showing the evidence was insufficient because support for the jurys verdict may lie in the evidence he ignores. (Id. at p. 1574.) Furthermore, a defendant does not show the evidence is insufficient by citing only his own evidence, or by arguing about what evidence is not in the record, or by portraying the evidence that is in the record in the light most favorable to himself. (Id. at p. 1573.)

Defendants argument is primarily based on the evidence he cited in challenging the admissibility of Reynosos expert opinion testimony. As noted above, his claim is based on an incomplete rather self-serving summary of the trial evidence. Thus, as a preliminary matter, defendant has failed to affirmatively demonstrate the evidence fails to support the jurys street terrorism verdict and the gang enhancement findings.

Second, the trial record supports the judgment. Before his current arrest, police officers had observed defendant in Townsend Streets territory on at least five occasions, frequently wearing dark blue clothing. Twice he had been seen loitering in the courtyard of an apartment complex associated with the gang as well. During two separate conversations with police officers defendant had admitted kicking back with or affiliating with Townsend Street gang members. Defendant had at least one family member who belonged to the gang, and was living with his sister and her boyfriend,
another Townsend Street gang member. Reynoso identified drug sales, the crimes on which defendants remaining charges were based, as one of the gangs primary activities. He also explained how this activity benefitted the gang. Defendants evidentiary insufficiency claim is thus unavailing.

3. The Felony Sentence Imposed on Count 4

Count 4 charged defendant with a felony violation of street terrorism under section 186.22, subdivision (a). But the verdict form submitted to the jury and signed by its foreperson states he was found guilty of the crime of [m]isdemeanor, to-wit, violation of [s]ection 186.22(a) . . . .  (Capitalization and underscoring omitted; italics added.) At his sentencing hearing, the court imposed a two-year concurrent state prison term for this charge. Defendant claims the sentence is unauthorized and must be reversed. We disagree.

First, it appears insertion of the word misdemeanor on count 4s verdict form was nothing more than a clerical or typographical error. The record contains no evidence either party objected to or even mentioned the verdicts language.

Second, the verdicts reference to count 4 as a misdemeanor does not control here. A verdict should be read in light of the charging instrument and the plea entered by the defendant. [Citations.] (People v. Paul (1998) 18 Cal.4th 698, 706.) As noted, the information charged defendant with a felony violation of section 186.22, subdivision (a) and he entered a not guilty plea to that charge.

[T]echnical defects in a verdict may be disregarded if the jurys intent to convict of a specified offense within the charges is unmistakably clear, and the accuseds substantial rights suffered no prejudice. [Citations.] [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.) People v. Holmes (1897) 118 Cal. 444 is analogous to this case. There the jury returned guilty verdict for [i]nvoluntary [m]anslaughter, [n]ot a
felony, as charged . . . . (Id. at p. 447.) The Supreme Court rejected the defendants attack on the sufficiency of the verdict. Whether the crime of which the defendants were found guilty was or was not a felony did not lie with the jury to declare, the statute does this. There is no good reason why the verdict of a jury should not have a reasonable construction, and be given effect according to its manifest intention. The words not a felony should be rejected as surplusage, and the general verdict of guilty of involuntary manslaughter should stand as the verdict. (Id. at p. 448.)

Here, as in Holmes, the jury had no role in deciding the degree of the offense charged in four. A conviction of street terrorism is punishable 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. ( 186.22, subd. (a).) The classification

of an offense punishable in the trial courts discretion either as a felony or as a misdemeanor . . . is dealt with by section 17 . . . . (People v. Banks (1959) 53 Cal.2d 370, 380-381, fn. omitted.) Under section 17, subdivision (a), a crime which is punishable . . . by imprisonment in the state prison, constitutes a felony unless one of the circumstances listed in subdivision (b) applies. Consequently, where a crime that provides for alternative felony-misdemeanor punishment is charged as a felony[, it] is regarded as a felony for all purposes until imposition of sentence or judgment. [Citations.] (People v. McElroy (2005) 126 Cal.App.4th 874, 880, fn. omitted; see also People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 975 [section 17 specifically leaves the determination of the nature of the conviction to the discretion of the judge to be determined at sentencing].)

The jury found the defendant guilty on count 4 as charged in the information, the verdict forms reference to it as a misdemeanor notwithstanding. Thus, the trial court did not err by imposing a felony sentence on this count.

4. Denial of Probation

Citing his negligible prior record, lack of prior probationary grants, and the relatively minor amounts of drugs found in his possession, defendant contends the trial court abused its discretion in denying his request for probation. We find no error.

The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation . . . . [Citations.] (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Appellate review of the decision is limited to whether, under all of the facts and circumstances of the case, the trial courts ruling was arbitrary, capricious, or exceeded the bounds of reason. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) The party attacking the decision shoulders the burden of showing an abuse of discretion occurred. (Ibid; see also People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)

In sentencing defendant, the court stated it had carefully considered

the probation recommendation and defendants sentencing brief, particularly the mitigating factors listed in it, and acknowledged this was a difficult case. But it concluded probation was inappropriate because the charges were serious. While also acknowledging defendant had not previously been placed on probation, the court cited his placement in a drug diversion program ( 1000) one month before his current arrest, which it concluded he just ignored . . . in the most flagrant way . . . .  [] . . . [] . . . He was given a chance. He was not sentenced . . . [and] then went about committing an even more serious crime while he was on court terms. [] The seriousness of the crime is increased by the fact that he was . . . selling these drugs in the Townsend Street [gangs] territory, as an active participant of that gang. The court additionally considered that defendant was less involved with the gang than previously, but noted he was still participating in it in a very fundamental way.

Thus, the record makes clear the court considered the relevant criteria set out in the sentencing rules, including defendants active gang participation, the nature, seriousness, and circumstances of the crime, as compared to other instances of the same crime (Cal. Rules of Court, rule 4.414(a)(1), (6)), his record, including the recency . . . of prior crimes and his inability to successfully perform in the drug diversion program (Cal. Rules of Court, rule 4.414(b)(1), (2), (4)). We see no abuse of discretion.

5. Section 654

Defendant contends the trial court violated section 654 by failing to stay imposition of sentence on counts 2, 3, and 4. He claims all four of the charges on which the jury found him guilty arose from a single act or indivisible course of conduct. This argument lacks merit.

Section 654, subdivision (a) precludes multiple punishment where [a]n act or omission . . . is punishable in different ways by different provisions of law . . . . This statute applies where a a course of conduct violate[s] more than one statute unless that course of conduct constitutes a divisible transaction. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (Ibid.) [W]hether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal. [Citations.] (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)

On counts 1, 2, and 3, the jury found defendant guilty of possessing for the purpose of sale three separate controlled substances, cocaine base, methamphetamine, and marijuana. California courts ha[ve] uniformly held that section 654 does not preclude multiple punishment for simultaneous possession of various narcotic drugs. [Citation.] (People v. Monarrez (1998) 66 Cal.App.4th 710, 714 [consecutive sentences
upheld for possession for sale of both heroin and cocaine]; see also People v. Barger (1974) 40 Cal.App.3d 662, 672 [citing cases; separate sentences for possessing four separate controlled substances affirmed].)

On count 4, the jury convicted defendant of street terrorism based on his

act of selling drugs to promote or assist the Townsend Street gang. In People v. Ferraez (2003) 112 Cal.App.4th 925, we upheld the imposition of concurrent terms for

possessing cocaine base for sale and street terrorism against a section 654 multiple punishment claim. [D]efendant possessed the drugs with the intent to sell, and he also intended to commit that felony to promote or assist the gang. While he may have pursued both objectives simultaneously, they were nonetheless independent of each other. . . . (People v. Ferraez, supra, 112 Cal.App.4th at p. 935.) Defendants reliance on section 654 thus lacks merit.

Alternatively, defendant contends the trial courts implied finding of separate objectives violated his Sixth Amendment guarantee to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] and its progeny. Not so. People v. Cleveland (2001) 87 Cal.App.4th 263 rejected this very claim. [W]hen section 654 is found to apply, it effectively reduces the total sentence otherwise authorized by the jurys verdict. . . .  Apprendi . . . only applies where the nonjury factual determination increases the maximum penalty beyond the statutory range authorized by the jurys verdict. In Apprendi, the factual determination . . . which increased [the] sentence was not determined by the trier of fact under the reasonable doubt standard. Here, however, each factual element of the [separate crimes] was submitted to the jury, and the jury found [the defendant] guilty beyond a reasonable doubt of both crimes. Thus, the jurys verdict authorized the sentences [the defendant] received for each crime. (Id. at p. 270; see also People v. Solis (2001) 90 Cal.App.4th 1002, 1021-1022.)

This principle applies here as well. The jurys verdicts authorized separate sentences on each charged criminal offense. By impliedly finding defendant committed the charged crimes with separate objectives, the trial court simply eliminated the potential the court must stay punishment on all but the most serious offense. It did not increase defendants potential punishment.

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

IKOLA, J.

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