In re Aurelio T.

Filed 2/23/07 In re Aurelio T. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver and John E. Griffin, Jr., Judges.

Kelly Babineau, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Jerry Brown, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.

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The court readjudged appellant, Aurelio T., a ward of the court (Welf. & Ins. Code,  602) after it sustained allegations charging him with one count each of possession of a concealed weapon (count 1/Pen. Code 12101, subd. (a)),^[1]possession of a dangerous weapon (count 2/ 12020, subd. (a)), carrying a concealable firearm by an active street gang member (count 3/ 12025, subd. (b)(3)) and allegations in counts 1 and 2 that the underlying offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). On April 13, 2006, the court committed appellant to 365 days in juvenile hall. On appeal, Aurelio contends: (1) the evidence is insufficient to sustain the gang enhancement in counts 1 and 2; (2) the evidence is insufficient to sustain the courts true finding with respect to count 3; and (3) the court erred in calculating his maximum term of confinement. We will find merit to Aurelios second and third contentions. In all other respects, we will affirm.

FACTS

On February 14, 2005, Stanislaus County Probation Officer Joel Perry and Modesto Police Officers John Griffith and Robert Gumm went to Aurelios house to conduct a probation search. Upon their arrival, they saw Aurelio walking from the back yard talking on a cell phone. Aurelio was wearing a T-shirt that said R.I.P. Whacky and In loving memory of homeboy Ramiro Sosa, Jr.^[2] Aurelio also had three dots on his hand, which stood for 13 and indicated that he was a Sureo gang member. On his right leg, he had tattoos that said 209 Mo Town and Loved by few. A search of one of three sheds on the property uncovered an unloaded sawed-off shotgun that had been painted blue except for the stock. After the officers brought the shotgun out, Aurelio stated, I shouldnt have had that there.

During an interview at the police station, Aurelio admitted knowing that the shotgun was in the shed, that the shotgun had been in his possession for several weeks, and that he got it from a Sureo gang member nicknamed Pachito. Aurelio also stated that he had been having trouble with D.S.S.N., a Norteo gang subset, who had recently stabbed his father and spray painted his fence. Aurelio admitted being a member of South Side Trece (S.S.T.), a Sureo gang subset.

Officer Gumm testified as an expert that one of the primary activities of the Sureo gang was possessing stolen cars and that its activities ran the gamut from homicides to drive-by shootings, robberies, auto theft, assaults on other gang members, witness intimidation, and property theft crimes. According to Gumm, guns are used offensively and defensively by gangs and are frequently used to commit violent crimes like homicides, witness intimidation, and robberies and they are frequently passed from gang member to gang member. Additionally, one gang member will store a gun to facilitate its availability to other members of the gang subset.

DISCUSSION

The Gang Enhancements

The Evidence was Sufficient to Sustain the Courts

True Findings on the Gang Enhancements

We review claims of insufficient evidence by examining the entire record in the light most favorable to the judgment below. [Citation.] We review to determine if substantial evidence exists for a reasonable trier of fact to find the counts against the minor true beyond a reasonable doubt. [Citation.] Substantial evidence must be reasonable, credible, and of solid value. [Citation.] We also presume the existence of every fact the lower court could reasonably deduce from the evidence in support of its judgment. [Citation.]

[Section 186.22, subdivision (b)(1)] enhances an existing sentence and does not criminalize mere gang membership [citation]; rather, it imposes additional punishment 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 . . . . [Citation.]

It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.] California law permits a person with special knowledge, skill, experience, training, or education in a particular field to qualify as an expert witness [citation] and give testimony in the form of an opinion (id., 801). [Citation.] However, Evidence Code section 801 limits this testimony to that related to a subject sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. [Citation.] The subject matter of the culture and habits of criminal street gangs . . . meets this criterion. [Citations.] [Citation.] Generally, experts may state their opinion based upon facts given in a hypothetical question asking them to assume their truth; however, the hypothetical must root itself in facts shown by the evidence. [Citation.] If experts base an opinion on material not admitted into evidence, the material must be reasonably relied upon by experts in that particular field in forming their opinions and be reliable. [Citation.] Like a house built on sand, the expert's opinion is no better than the facts on which it is based. [Citation.] (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196-1197.)

In Frank S., after a Visalia police officer stopped the minor on a bicycle, an ensuing search uncovered a knife and a small bindle of methamphetamine on the minor and a red bandanna. The minor told the officer that he needed the knife for protection against rival gang members. During the adjudication hearing, the only evidence of the minors intent in possessing the knife came from an officer who testified as an expert that the minor possessed the knife with the specific intent to aid his gang. On appeal, this court held that the officers expert testimony was improperly admitted on the issue of the the minors intent and that the evidence was otherwise insufficient to sustain the courts true finding of a gang enhancement. (In re Frank S., supra, 141 Cal.App.4th at p. 1199.)

Aurelio relies on Frank S. to argue that the evidence is insufficient to sustain the court true findings on the gang enhancement in counts 1 and 2 because it fails to show that he possessed the sawed-off shotgun for the benefit of a street gang or with the specific intent to assist, promote or further the criminal activity of the gang. We find the instant case distinguishable from Frank S.

Here, Aurelio admitted that he got the gun from another gang member, although he claimed that he intended to use it to defend himself from the D.S.S.N. gang. However, the location of the sawed-off shotgun in a shed in Aurelios backyard made the gun accessible to other gang members even if Aurelio was not home. Further, Officer Gumm testified that guns are frequently used by gang members to commit violent crimes, they are stored by one member to facilitate its use by other gang members, and the firearms frequently move from member to member. Gumm also testified that the blue color of the shotgun was intended to represent the Sureo gang and to intimidate their opponents. Thus, unlike Frank S., the record in the instant case contains evidence from which the court could reasonably infer that Aurelio possessed the sawed-off shotgun with the specific intent to promote, further, or assist criminal conduct by his fellow gang members by making it readily available to other gang members.

The Evidence was Sufficient to Show that the Primary Activities of the

Sureo Gang was Committing One or More of the Requisite Predicate Offenses

To trigger the gang statutes sentence enhancement provision [citation], the trier of fact must find that one of the alleged criminal street gangs primary activities is the commission of one or more of certain crimes listed in the gang statute. [Citation.] The phrase primary activities, as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes be one of the groups chief or principal occupations. [Citation.] [Citation.] Proof that a gangs members consistently and repeatedly have committed criminal activity listed in section 186.22, subdivision (e) is sufficient to establish the gangs primary activities. On the other hand, proof of only the occasional commission of crimes by the gang's members is insufficient. [Citation.] Past offenses, as well as the circumstances of the charged crime, have some tendency in reason to prove the groups primary activities, and thus both may be considered by the jury on the issue of the groups primary activities. [Citation.] (People v. Duran (2002) 97 Cal.App.4th 1448, 1464-1465.) Further, evidence of a criminal street gangs primary activities may be provided by the testimony of a police gang expert who testifies in his opinion as to what the primary activities of the street gang consist of. (People v. Gardeley (1996) 14 Cal.4th 605, 619-620.)

Here, Officer Gumm testified as an expert that the activities of the Sureo gang included possessing stolen cars, homicides, drive-by shootings, robberies, auto theft, assaults on other gang members, witness intimidation, theft property crimes, all of which are listed in section 186.22, subdivision (e) and that many of the violent crimes were committed with weapons.

Aurelio cites one colloquy during cross-examination to contend that it shows Officer Gumm could not testify that the primary activity of the Sureo gang was criminal activity and to a second colloquy to contend that it shows Gumm could not state how Sureo Gang members had spent their time together as a group. We have examined the first colloquy and conclude that, at most, it shows that Gumm conceded that he had not done a statistical analysis that would allow him to compare criminality among Sureo gang members with criminality in the general population. Further, all the second colloquy discloses is that the Gumm was not able to state how much time Sureo gang members had spent committing crimes compared to time they had spent together engaged in lawful activity. However, none of Gumms statements during either colloquy undermine his testimony that the primary activities of the Sureo gang involved possessing stolen cars and other violent offenses which they use firearms to commit. Accordingly, we conclude the evidence is sufficient to sustain the courts true finding with respect to the gang enhancements.

The Evidence was Insufficient to Sustain the Courts

Finding that Aurelio Violated Section 12025 Subdivision (b)(3)

Section 12025 subdivision (a) provides:

A person is guilty of carrying a concealed firearm when he or she does any of the following: [] (1) Carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person. [] (2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person. [] (3) Causes to be carried concealed within any vehicle in which he or she is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person. (Italics added.)

Subdivision (b)(3) of section 12025 provides that a violation of this section is punishable as a felony if the person possessing the firearm is an active criminal street gang member.

Aurelio contends the evidence is insufficient to sustain the courts finding that he violated section 12025 and that this offense should be treated as a felony under subdivision (b)(3) of that section because the evidence failed to show: (1) he carried the saw-off shotgun within the meaning of the statute; (2) the Sureo gang was a criminal street gang; or (3) that he assisted, furthered or promoted the criminal conduct of fellow gang members. Respondent concedes the evidence is insufficient to sustain the courts finding as to this offense because the evidence failed to show he carried the sawed-off shotgun. We agree with respondent.

Preliminarily, for the reasons discussed in the previous section, we reject Aurelios contentions that the evidence failed to show the Sureo gang is a criminal street gang and that he possessed the sawed-off shotgun with the intent to assist, further or promote the criminal activities of a street gang. However, the evidence showed the shotgun was found stored in a shed and Aurelio was not carrying it when the officers arrived at his house. Accordingly, we agree with the parties that the evidence failed to show Aurelio carried the shotgun within the meaning of the statute. Thus, we conclude the evidence is insufficient to sustain the courts finding that Aurelio violated section 12025.

Aurelios Maximum Term of Confinement

Aurelios probation report did not address Aurelios maximum term of confinement. Nor did the court address Aurelios maximum term of confinement at his disposition hearing. Nevertheless, the clerks minute order for Aurelios disposition hearing indicates the court set this term at 124 months based on the offenses underlying the instant matter. Aurelio contends the court failed to properly compute his maximum term of confinement because it did not: (1) consider the application of section 654 to his offenses, which were all based on his possession of the sawed-off shotgun; and (2) make a record of how it computed his maximum term of confinement. Respondent concedes the matter should be remanded to the trial court so that it may properly compute Aurelios maximum term of confinement and we agree.

Welfare and Institutions Code section 726 subdivision (c ) provides, in pertinent part:

If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.

As used in this section and in Section 731, maximum term of imprisonment means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 . . ., but without the need to follow the provisions of subdivision (b) of Section 1170 . . . or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 . . ., plus enhancements which must be proven if pled.

In In re Michael B. (1980) 28 Cal.3d 548, the Supreme Court held,

[S]ection 654 does apply to juvenile court sentencing, since section 726 requires aggregate confinement in accordance with . . . section 1170, subdivision (a) which, in turn specifies such consecutive sentencing is subject to . . . section 654. (Id. at p. 556, fn. 3.)

Here, although the court was required to calculate Aurelios maximum term of confinement, the record does not disclose that it actually ever did or why the clerks minute order for Aurelios disposition hearing indicates his maximum term of confinement for the instant offenses was set at 124 months. Additionally, it does not appear that section 654 was considered in arriving at a maximum term of physical confinement of 124 months. In view of the foregoing, we will remand this matter to the juvenile court so that it can calculate Aurelios maximum term of confinement and advise the parties of the basis for its calculations prior to conducting another disposition hearing.

DISPOSITION

The courts finding that Aurelio violated section 12025 is reversed. Additionally, the judgment is modified to strike the 124 months that were listed as Aurelios maximum term of confinement in the clerks minute order of Aurelios disposition hearing. The matter is remanded to the trial court so that it may calculate Aurelios maximum term of confinement taking into account the effect, if any, of section 654. As modified, the judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.

Judge Shaver presided over the adjudication hearing and Judge Griffin presided over the disposition hearing.

^[1] Unless otherwise indicated, all further statutory references are to the Penal Code.

^[2] Sosa was a Sureo gang member who was killed in August 2005.