P. v. Alejo

Filed 7/31/07 P. v. Alejo CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Jerry E. Johnson, Judge. Affirmed in part and reversed in part.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

INTRODUCTION

Defendant Michael Alejo appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of possession of a firearm by a felon (Pen. Code,[1] 12021, subd. (a)(1)), and found true the criminal street gang allegation ( 186.22, subd. (b)(1)(A)). The trial court found true the allegation defendant served a prior prison term ( 667.5, subd. (b)). The trial court imposed the high term of three years for the offense, four years for the gang allegation, and one year for the prior prison term, for a total of eight years.

On appeal, defendant challenges the trial courts denial of his suppression motion, the sufficiency of the evidence supporting the gang enhancement, denial of a request for jurors identifying information and an evidentiary hearing, and imposition of the high term. We agree that the evidence is insufficient to support the gang enhancement. We reject the remainder of his contentions.

FACTS

A.Prosecution Evidence

In the early evening of July 20, 2006, Sergeant James Tatreau and Deputy Chris Fernandez of the Los Angeles County Sheriffs Department were driving down an alley by the 1700 block of East Saunders Street in the City of Compton when they observed defendant. Defendant was standing in the courtyard of an apartment complex, wearing baggy jeans and an oversized white T-shirt. Deputy Fernandez recognized defendant from previous contacts in which defendant had identified himself as Shorty from the CV70 or Compton Varrio gang.

The deputies approached defendant from behind. Defendant did not notice Sergeant Tatreau or Deputy Fernandez until he turned to face them. Both deputies observed a CV70 tattoo on the right side of defendants neck. According to Sergeant Tatreau, defendant appeared nervous and startled by the presence of law enforcement.

Sergeant Tatreau asked defendant to place his hands up in the air. Defendant initially began to comply but then attempted to run past Sergeant Tatreau. There was a struggle. During the struggle, Deputy Fernandez felt a heavy object in defendants right front pants pocket. It was a 9-millimeter semi-automatic handgun with a loaded magazine containing 12 or 13 rounds, with a round loaded in the chamber.

Defendant was asked for his name. He initially replied, Shorty Mac from CV70.

The door to the apartment next to the scuffle was open, and Deputy Fernandez saw inside the apartment an ammunition magazine protruding from underneath a sofa cushion. A magazine, containing 19 rounds and fitting the handgun the deputies had recovered, was obtained from the apartment.

Detective Peter Hecht testified as a gang expert. Detective Hecht explained that the CV70 or Compton Varrio 70s was a Compton gang, and defendant was arrested within territory of the CV70 gang, although the address that defendant provided at the time of booking was not located within the CV70 gang territory. The territory of the CV70 gang overlapped the territory of the Lueders Park Piru gang and Limewood Piru gang, and the gangs had been at war during the past five years. He opined that CV70 gang and the Lueders Park Piru gang were mortal enemies, and the ongoing war made the area near the location where defendant was arrested the most violent part of Compton since about 2001. Leuders Park was located about 100 yards from the apartment complex, and Leuders Park Piru members were often in the park. Four days before defendants arrest, there was a shooting in the area of Leuders Park, and the suspect was a CV70 gang member.

Detective Hecht opined that defendant possessed the gun for the benefit of the CV70 gang and to facilitate criminal activity by the CV70 gang, because gang members use guns to commit their criminal acts, to protect themselves and gang turf, and to attack enemy gang members. Additionally, defendant was located in a territory that bordered the territory of a rival gang, there was an ongoing war between the gangs that involved shootings every week, including a shooting by a CV70 member in the same area four days earlier.

B. Defense Evidence

Dr. Malcolm Klein testified as a gang expert for defendant on the issue of whether he possessed the handgun for the benefit of CV70. Dr. Klein opined that defendant possessed the gun for his own protection and not for the benefit of a gang. Dr. Klein testified that when Sergeant Tatreau and Deputy Fernandez saw defendant and arrested him, defendant did not flash gang signs or wave the gun while mentioning CV70. If defendant had done so, it would have indicated that he carried the handgun for the benefit of CV70. Since he did not do so, he carried the gun for his own protection and not for the benefit of CV70.

DISCUSSION

A. The Suppression Motion

In reviewing a trial courts ruling on a suppression motion, we must uphold any express or implied factual findings made by the trial court if they are supported by substantial evidence. (People v. Hughes (2002) 27 Cal.4th 287, 327; People v. Williams (1988) 45 Cal.3d 1268, 1301.) We determine independently, as a matter of law, the applicable rule of law for assessing whether the challenged police action violated the Fourth Amendment protection against unreasonable searches and seizures. (Hughes, supra, at p. 327; Williams, supra, at p. 1301.) Finally, we independently determine whether, applying the rule of law to the facts in the instant case, the challenged police conduct, as a matter of law, constituted an unreasonable search or seizure in violation of the Fourth Amendment. (Williams, supra, at p. 1301.)

Sergeant Tatreau testified at the suppression hearing that after a shooting in the 1700 block of East Saunders Street, an anonymous citizen informant identified the shooter as Shorty from the CV70 gang, a Hispanic male in his 20s or early 30s, of average height and weight. The citizen informant said that Shorty fired at persons to the south of an apartment complex. While investigating the shooting, a resident in the area showed Sergeant Tatreau a bullet hole in the wall of his home, which was to the south of the apartment complex.

Sergeant Tatreau looked in the gang database and determined that defendant was the only CV70 member with the moniker Shorty. Defendant matched the description provided by the anonymous citizen informant.

When Sergeant Tatreau and his partner drove by the 1700 block of East Saunders Street on July 20, they saw defendant at the same apartment complex from which the earlier shooting had taken place. They approached defendant, who appeared startled. Believing defendant to be the shooter, Sergeant Tatreau told him to raise his hands. Defendant started to comply but then attempted to run past the deputies. Sergeant Tatreau observed a heavy object, which appeared to be a handgun, in defendants pocket. The deputies grabbed defendant, conducted a pat-down search and recovered the gun from defendants pocket.

The People assert that the deputies initial detention of defendant was valid, in that they had sufficient facts to form a reasonable suspicion that defendant had committed a shooting at the same apartment complex a few days earlier. We agree.

In order for a detention to be constitutionally reasonable, the detaining officer must have specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. (People v. Daugherty (1996) 50 Cal.App.4th 275, 285.) The articulated facts must be considered in light of the totality of the circumstances. (People v. Souza (1994) 9 Cal.4th 224, 231.)

Here, a citizen informant had provided a description of the shooting occurring a few days before defendant was detained and had identified the shooter as Shorty from the CV70 gang. The identification matched the gang database information on defendant. The description of the shooting was partially verified by a local resident whose home had recently been struck by a bullet.

While the anonymous citizen informant was untested, the informants firsthand description of the crime and the perpetrator enhanced the reliability of the tip and supported reasonable suspicion. (People v. Dolly (2007) 40 Cal.4th 458, 463-464, 468; see also People v. Ramey (1976) 16 Cal.3d 263, 269.) The totality of the circumstance justified the temporary detention of defendant and the trial court did not err in denying defendants suppression motion. (People v. Souza, supra, 9 Cal.4th at p. 231.)

B. Sufficiency of the Evidence to Support the Gang Enhancement

In reviewing the sufficiency of the evidence, the question on appeal is whether there is evidence from which a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) In making this determination, we must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Rayford (1994) 9 Cal.4th 1, 23; accord, People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)

Substantial evidence is that which is reasonable, credible and of solid value. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) Although all reasonable inferences must be drawn in support of the judgment, the court may not go beyond inference and into the realm of speculation in order to find support for a judgment. A finding . . . which is merely the product of conjecture and surmise may not be affirmed. (People v. Memro (1985) 38 Cal.3d 658, 695; accord, People v. Waidla (2000) 22 Cal.4th 690, 735.)

Section 186.22, subdivision (b)(1), provides that 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 shall be punished pursuant to that section. Defendant contends that there was insufficient evidence to support the jurys true finding on the allegation that defendant possessed the handgun for the benefit of or in association with CV70.

Here, there simply is no substantial evidence to support the finding that defendant possessed the loaded semiautomatic handgun for the benefit of, at the direction of, or in association with the CV70 street gang, with the specific intent to promote, further, or assist criminal conduct by CV70 gang members. Defendant was a gang member, in gang territory, with a handgun. This is not enough to prove the gang allegation. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199, review den. Dec. 13, 2006.) The People were required to prove that his possession of the gun had some connection with the activities of a gang (ibid.) and failed to do so.

Detective Hechts opinion that defendant possessed the gun for the benefit of the CV70 gang and to facilitate criminal activity by the CV70 gang, because gang members use guns to commit their criminal acts, to protect themselves and gang turf, and to attack enemy gang members was simply thatan opinion as to defendants intent based on the evidence. It was not sufficient to establish such intent. (In re Frank S., supra, 141 Cal.App.4th at p. 1199.)

Accordingly, the gang enhancement must be reversed.

C. Denial of Request for Jurors Identifying Information and Evidentiary Hearing

Defendant contends that the trial court erred in denying his request for jurors identifying information and in denying his request for an evidentiary hearing on allegations of jury misconduct. Defendant claims two instances of jury misconduct that required further inquiry. He argues that the jury may have incorrectly assumed that since he did not explain why he was in the area, he possessed the gun for the benefit of the gang. Additionally, he argues misconduct based upon one jurors statement that she was so afraid of defendant that the jury had to find him guilty. Defendant adds that based upon the jury misconduct, the gang enhancement should be reversed. Inasmuch as we have concluded that the gang enhancement must in any event be reversed due to insufficient evidence, we need not address defendants contention.[2]

D. Imposition of the Upper Term Sentence

The California Supreme Court recently held in People v. Black (2007) ___ Cal.4th ___ at page ___ that to the extent there is at least one proper recidivist factor on which the trial court could rely, a defendant is not entitled to receive anything less than the upper term sentence, and imposition of that sentence does not violate his Sixth Amendment right to a jury trial. In the instant case, the probation officers report listed four aggravating factors: defendant was on probation or parole at the time the offense was committed, his prior performance on probation or parole was unsatisfactory, he served a prior prison term, and he had engaged in violent conduct indicating a serious danger to society. In sentencing defendant, the trial court noted: There doesnt appear to be any mitigating circumstances. His conduct appears to be related to violence, to firearms, and indicates a serious dangerous [sic] to the neighborhood in particular, and the society in general. His prior felony conviction, those kinds of things all are circumstances in aggravation. Defendants prior prison term and parole status are recidivist factors justifying imposition of the upper term sentence. (Id. at p. ___; People v. Yim (2007) 152 Cal.App.4th 366, 370-371; People v. Morton (2007) 152 Cal.App.4th 323, 336-337.) Defendants upper term sentence consequently is constitutional. (Black, supra, at p. ___.)

The gang enhancement is reversed. The judgment is modified by striking the four-year enhancement imposed under section 186.22, subdivision (b)(1)(A). As so modified, the clerk of the court is directed to prepare a modified abstract of judgment and forward a copy to the Department of Corrections.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

VOGEL, J.

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[1] All further section references are to the Penal Code.

[2] Defendant does not challenge his firearm possession conviction on this ground.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.