P. v. Price
Filed 4/12/13 P. v. Price CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
KESHAWN LYNELL PRICE,
Defendant and Appellant.
D061072
(Super. Ct.
No. SCD233965)
APPEAL from
a judgment of the Superior Court
of
County, Howard H.
Shore, Judge. Affirmed.
A jury
convicted Keshawn Lynell Price of carrying
a loaded firearm (Pen. Code,
name="_ftnref1" title="">[1]
§ 12031,
title="">[2]
subd. (a)(1)). In addition, the jury
found true the enhancement allegations that Price was not the registered owner
of the firearm under section 12031, subdivision (a)(2)(F), and that he was an
active participant in a criminal street
gang within the meaning of section 12031, subdivision (a)(2)(C).
The court
sentenced Price in the present case along with another unrelated case, No.
SCD233723. The court chose case No.
SCD233723 to constitute the principal term, imposed the middle term of three
years, and increased the term to five years to reflect the street gang
enhancement. In the present case, the
court imposed one-third the middle term of two years (eight months) to run
consecutively with the principal term for a total of five years eight months.
Price
appeals the jury's findings regarding his active participation in a criminal
street gang, contending there was insufficient
evidence to show he had knowledge that members of Skyline Piru (Skyline)
and O'Farrell Park (O'Farrell) engaged in a pattern of criminal activity. Additionally, Price appeals his conviction of
carrying a loaded firearm, contending there was insufficient evidence that he
carried the gun. We conclude there was
sufficient evidence of Price's knowledge that Skyline and O'Farrell engaged in
a pattern of criminal activity and
that he carried the gun on the night in question. Accordingly, we affirm the judgment.
FACTS
I
On October 24, 2010, San Diego Police
Officers Tobia Terranova and Kevin Wadhams attempted to stop a car on Euclid
Avenue in San Diego. The driver of the car refused to stop and a
high-speed chase ensued. During the
pursuit, the officers saw the front passenger's arm come out of the right front
passenger window and throw a metal object that caused large orange sparks when
it hit the ground. The pursuit ended in
a cul-de-sac and both occupants of the car jumped out and ran in different directions. The driver was apprehended and identified as
Jamar Lee. Price, identified as the
passenger of the car, was apprehended shortly thereafter. DNA mouth swabs were taken from both Price
and Lee.
Later,
Officer Kris Walb searched the area where the object was thrown. At the base of a tree she found a .38-caliber
revolver, loaded with five rounds. At
trial, Officer Terranova stated he had seen photographs of the revolver found
at the scene. He stated the photographs
of the revolver matched the size, shape and general make-up of the object that
was thrown and sparked on the sidewalk.
The
revolver was also swabbed for a DNA sample.
The technical manager at the DNA laboratory for the San Diego Police
Department tested the swab of DNA from the revolver and compared the sample
with the samples taken from Price and Lee.
The technical manager obtained a mixture of DNA from at least three
people from the swab of the revolver.
Price was included as a potential DNA contributor to the DNA swab taken
from the revolver, whereas Lee was excluded as a potential DNA contributor.
II
Detective
Jon Brown testified at trial as a gang expert regarding the Skyline and
O'Farrell gangs. He stated that gang
members earn respect in a gang by committing crimes for the gang. Detective Brown testified about three
predicate offenses committed by Skyline or O'Farrell gang members since
2007. The first was the murder of a
rival gang member by Skyline and O'Farrell gang members in 2007. The second was an attempted murder by Skyline
gang members in 2009. The third was a
robbery at gunpoint committed by Skyline and O'Farrell gang members in
2009.
Detective
Brown identified Lee as a gang member and stated Lee has five documented
associations with Skyline gang members.
Lee has a gang moniker and has claimed to Detective Brown that he was a
Skyline gang member. Detective Brown has
also found photographs of Lee with other known gang members using gang hand
signs. Lee and Price are often seen
together.
Detective
Brown also testified regarding Price's documented gang affiliations. An informant first identified Price as a gang
member in 2008. Price has two gang
monikers, a gang tattoo and has admitted his gang affiliations to police. Price's father, Keith Price, has also been
identified by police as a Skyline gang member.
Further,
between 2008 and 2011, Price had 18 contacts with known Skyline or O'Farrell
gang members. In 2009, Price was
contacted while in a car during a traffic stop with Laquan Jordan (Laquan), a
documented Skyline gang member. Price
was also contacted during a traffic stop in 2010 with Laquan's brother,
Shaquille Jordan (Shaquille). Shaquille
has been identified as another Skyline gang member. Laquan and Shaquille are both currently
serving prison terms for murder, and Laquan has a child with Price's
sister. In addition, in 2010, Price was
contacted with a known O'Farrell gang member, Malcolm Hune, as well as Timothy
Walker, a known Skyline gang member.
At trial,
Detective Brown was asked whether gang members would know of the presence of a
gun in the car when driving with other gang members in rival territory. He responded that the presence of the gun
would be known by other gang members in the car in case they were stopped by
police or in order to use it against rival gang members. He also stated the gun would be considered
the property of every member of the gang to be used to commit violent crimes.
DISCUSSION
I
Price
contends the jury's finding that he was an active participant in a criminal
street gang must be reversed because there was insufficient evidence for a
rational jury to find he had knowledge that members of the Skyline or O'Farrell
gangs engage or have engaged in a pattern of criminal activity.
When
considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record favorably to the judgment to determine
whether it contains substantial evidence from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. (People
v. Lindberg (2008) 45 Cal.4th 1, 27 (Lindberg).) When reviewing the sufficiency of evidence to
support a special circumstance, the relevant inquiry is " ' "whether,
after viewing the evidence in the light most favorable to the People,
found the essential elements of the allegation beyond a reasonable doubt."
' " (Ibid.)
The
California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.)
provides that a person is guilty of a substantive offense when he or she
"actively participates in [a] criminal street gang with knowledge that its
members engage in or have engaged in a pattern of criminal gang activity, and .
. . willfully promotes, furthers, or assists in any felonious
. . . ." (§ 186.22, subd.
(a).) Knowledge that fellow gang members
engage in or have engaged in a pattern of criminal activity requires " 'guilty
knowledge and intent' of the organization's criminal purposes." (People
v. Castenada (2000) 23 Cal.4th 743, 749, citing Scales v. United States (1961) 367 U.S. 203, 228.) It does not require that a defendant have
subjective knowledge of particular crimes committed by gang members. (People
v. Carr (2010) 190 Cal.App.4th 475, 488, fn. 13.) Evidence of a defendant's gang affiliation,
qualifying felony convictions by him or other gang members, continuing
conflicts between gangs and expert testimony is sufficient for a jury to infer
the defendant knew about the criminal activities of his affiliated gang. (Ibid.)
Here, there
was sufficient evidence for a rational trier of fact to find Price had
knowledge that members of Skyline or O'Farrell engage or have engaged in a
pattern of criminal activity. Detective
Brown provided ample evidence of Price's involvement and association with both
gangs, permitting the jury to infer his intimate knowledge of the gang and, in
turn, its criminal activities. Such
testimony included three predicate offenses committed by Skyline and O'Farrell
gang members since 2007. Detective
Brown's testimony also provided evidence of Price's self-identification to
police as a gang member, his gang moniker, gang tattoos, and his associations
with Lee and Laquan, both documented gang members.
Further,
the jury could reasonably have inferred Price's intimate knowledge of the
Skyline gang's criminal purposes from his familial associations with various
gang members. Price's father has been identified
as a Skyline gang member, and Price's sister has a child with Laquan, a
documented gang member currently serving a prison term for murder. Price's numerous contacts while in the
presence of various Skyline and O'Farrell gang members also show a close
association with the gang, giving the jury substantial evidence from which to
infer his knowledge of the gang's activities.
II
Price also
contends his conviction for carrying a loaded firearm must be reversed because
there was insufficient evidence to establish he carried a gun within the
meaning of section 12031, subdivision (a)(1).
As noted above, we review this contention for substantial evidence. (Lindberg,
supra, 45 Cal.4th at p. 27.)
Under
section 12031, "[a] person is guilty of carrying a loaded firearm when he
or she carries a loaded firearm on his or her person or in a vehicle while in
any public place . . . ." (§ 12031, subd. (a)(1).) " '[C]arrying' refers to the 'act or
instance of carrying' and the verb 'carry' in relevant definition connotes 'to
convey, or transport . . . ;' and 'to transfer from one
place . . . to another.' "
(People v. Overturf (1976) 64
Cal.App.3d Supp. 1, 7.)
Here, the
gun was thrown from the front passenger window where Price was seated during
the pursuit. When the gun was retrieved,
it was loaded with five rounds. When the
DNA swabs were tested, Price's DNA was found on the gun, while Lee's was
not. In addition, Price himself concedes
the evidence produced at trial showed "he may have briefly touched the gun
to throw it out the window." We
conclude the evidence was sufficient for a rational juror to infer Price
carried the gun within the meaning of section 12031, subdivision (a)(1).
DISPOSITION
The
judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code.
name="_ftn2" title="">[2] Section 12031 was repealed on January 1, 2012, but its
provisions were continued without substantive change in new Title 2 (commencing
with § 12001), entitled Sentence Enhancements. We thus refer to this section by its former
number in this opinion for clarity and convenience.
