Filed 10/19/17 P. v. Garcia CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. RICARDO GARCIA, Defendant and Appellant.

H044322 (Santa Clara County Super. Ct. No. C1498614)

I. Introduction

Defendant Ricardo Garcia pleaded no contest to several offenses, including two counts of assault with a deadly weapon upon a peace officer (Pen. Code, § 245, subd. (c));[1] active participation in a criminal street gang (§ 186.22, subd. (a)); possession of a billy (§ 22210); possession of ammunition by a felon (§ 30305, subd. (a)(1)); and reckless driving while attempting to evade a peace officer (Veh. Code, § 2800.2, subd. (a)). Defendant also admitted various allegations, including that he had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)), and that he had served four prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to 15 years eight months in prison, which included a concurrent 4-year term for active participation in a criminal street gang (§ 186.22, subd. (a)).

On appeal, defendant contends that the term for active participation in a criminal street gang should be stayed pursuant to section 654 because he was also punished for the assaults upon the peace officers, which were the basis for the gang offense.

For reasons that we will explain, we will order the judgment modified to stay the term for active participation in a criminal street gang (§ 186.22, subd. (a); count 4) and affirm the judgment as modified.

II. FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of November 23, 2014, the police responded to a call of a gang-related disturbance involving weapons.[2] Bystanders called 911 to report a fight between multiple gang members involving knives and bats. The area was known for gang activity.

When the police arrived, defendant was driving a vehicle with two passengers and “reversing . . . in an attempt to flee from the police.” A chase ensued with the vehicle traveling approximately 40 miles per hour in a 25-mile-per-hour zone. Defendant intentionally slammed the vehicle into a patrol car occupied by two officers. One of the officers exited the patrol car and drew his firearm to detain defendant and the two passengers. Defendant immediately sped away in the vehicle toward another patrol vehicle. The officer from that patrol vehicle had exited the vehicle, and defendant attempted to run him down. The officer avoided being hit by getting back into his patrol vehicle.

The vehicle pursuit continued until defendant’s vehicle crashed into a curb and stopped. The front passenger was immediately handcuffed and the back passenger was also detained. Defendant fled on foot but was apprehended by the police.

A search of defendant “revealed a box containing two .380[-]caliber ammunition cartridges in his pants pocket.” In the vehicle, near the rear passenger seat, there was a hammer that had been painted blue. An aluminum baseball bat was located on the floorboard between the front passenger seat and the door. Burglary tools, an orange steel bar, and gang indicia were also found in the vehicle. It was further determined that the license plate on the vehicle did not belong to that vehicle.

The front passenger, David Chavez, denied being involved in any fight or gang-related activity. He also denied that the weapons or ammunition found by the police were his. Upon Chavez being booked into jail, “two .380[-]caliber rounds were found hidden inside of his left sock.” Chavez was on probation at the time, and defendant was on parole. The police identified Chavez and defendant as Sureño gang members.

A.The Charges and Pleas

Defendant was charged by first amended complaint with the following 11 counts: three counts of assault with a deadly weapon, a vehicle, upon a peace officer (§ 245, subd. (c); counts 1-3); active participation in a criminal street gang (§ 186.22, subd. (a); count 4); possession of a billy (§ 22210; count 5); possession of ammunition by a felon (§ 30305, subd. (a)(1); count 7); reckless driving while attempting to evade a peace officer (Veh. Code, § 2800.2, subd. (a); count 8); misdemeanor concealing or withholding stolen property, a license plate (§ 496, subd. (a); count 9); two counts of misdemeanor hit and run driving causing property damage (Veh. Code, § 20002, subd. (a); counts 10 & 11); and misdemeanor resisting an officer (§ 148, subd. (a)(1); count 12).[3]

The complaint further alleged as to counts 1 through 3, 5, 7, and 8 that defendant committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)). The complaint also alleged as to counts 1 through 3 that defendant personally used a dangerous and deadly weapon, a vehicle, in the commission of the assaults (§§ 667, 1192.7). The complaint further alleged that defendant had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)), and that he had served four prior prison terms (§ 667.5, subd. (b)).

On motion of the prosecution, count 1 was amended to add as a victim the officer who was named as a victim in count 2, and count 2 was submitted for dismissal at the time of sentencing. Defendant pleaded no contest to all the counts alleged against him, except count 2, and he admitted all allegations. Defendant entered his pleas and admissions after the trial court gave an indicated sentence of 12 years four months.

B.The Sentencing

Defendant filed a written request that the court dismiss his prior strike conviction pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The prosecution filed written opposition. In addressing the circumstances of defendant’s present offenses, the prosecution contended that “defendant’s vehicle appeared to be coming from a gang fight.”

The sentencing hearing was held on April 29, 2016. Regarding defendant’s request to dismiss his prior strike conviction, defense counsel observed that the prosecution’s written opposition had referred to a fight that had preceded defendant’s offenses in the instant case. Defense counsel argued, “I don’t believe that the Court should consider that in making its determination. There was no direct link whatsoever to [defendant] in that fight.” The court responded, “I did note that.”

The trial court ultimately denied defendant’s motion to dismiss his prior strike conviction and sentenced him to 15 years eight months in prison. The sentence consists of eight years (double the middle term) on count 1 (assault with a deadly weapon upon a peace officer, § 245, subd. (c)); a consecutive term of two years eight months (one-third the middle term, doubled) on count 3 (assault with a deadly weapon upon a peace officer); concurrent terms of four years each (the middle term doubled) on counts 4 (active participation in a criminal street gang, § 186.22, subd. (a)), 5 (possession of a billy, § 22210), and 7 (possession of ammunition by a felon, § 30305, subd. (a)(1)); and a consecutive term of five years for the prior serious felony conviction (§ 667, subd. (a)). The court stayed the term on count 8 (reckless driving while attempting to evade a peace officer, Veh. Code, § 2800.2, subd. (a)) pursuant to section 654. The court also struck the punishment for the gang enhancements pursuant to section 186.22, subd. (g), and struck all the prison priors pursuant to section 1385. The court imposed a 120-day concurrent term on counts 9, 10, 11, and 12 and deemed the misdemeanor sentences satisfied. The remaining count was dismissed.

III. DISCUSSION

Defendant contends that the concurrent term for active participation in a criminal street gang (§ 186.22, subd. (a); count 4) should be stayed pursuant to section 654 because he was also punished for the assaults on the peace officers (§ 245, subd. (c); counts 1 & 3). He argues that “[t]he evidence of [his] active participation consisted entirely of evidence associated with the assault offenses for which he was also convicted.”

The Attorney General contends that defendant’s sentence does not violate section 654. The Attorney General argues that defendant was “involve[d] in the gang fight which preceded the assault” on the peace officers, and that he “acted as a getaway driver for himself and two other gang members.” The Attorney General contends that a hammer “painted a gang color” was found in the vehicle driven by defendant, as well as a baseball bat, which was “the type of weapon that was reported as being used in the fight.” The Attorney General argues that this “constitutes substantial evidence that [defendant], through his involvement in the gang fight, promoted, furthered, or assisted in felonious criminal conduct.”

Section 654, subdivision (a) provides in pertinent part, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” The California Supreme Court has “ ‘consistently held that [section 654] bars imposing [multiple] sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code. . . . [E]xecution of the sentence for one of the offenses must be stayed.’ [Citations.]” (People v. Mesa (2012) 54 Cal.4th 191, 195 (Mesa).)

The gang crime in section 186.22, subdivision (a) applies to “[a]ny 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.” “As the statutory text indicates, the gang crime has three elements: (1) ‘[a]ctive participation in a criminal street gang, in the sense of participation that is more than nominal or passive,’ (2) ‘ “knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity,” ’ and (3) ‘the person “willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.” [Citation.]’ [Citation.]” (Mesa, supra, 54 Cal.4th at p. 197, italics added.) Regarding the third element, the “felonious criminal conduct” that is promoted, furthered, or assisted by the defendant may be “any felonious criminal conduct by gang members.” (People v. Albillar (2010) 51 Cal.4th 47, 54.) It is not limited to gang-related felonious criminal conduct. (Ibid.; see also id. at pp. 51, 55, 59.)

Relevant here, “[s]ection 654 applies where the ‘defendant stands convicted of both (1) a crime that requires, as one of its elements, the intentional commission of an underlying offense, and (2) the underlying offense itself.’ [Citation.]” (Mesa, supra, 54 Cal.4th at p. 198.) Consequently, in the context of the gang crime, “ ‘section 654 precludes multiple punishment for both (1) [the gang crime], one element of which requires that the defendant have “willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of th[e] gang” [citation], and (2) the underlying felony that is used to satisfy this element of [the gang crime].’ [Citation]” (Id. at pp. 197-198.)

The California Supreme Court has rejected the argument that this application of section 654 “would eviscerate the substantive offense of gang participation.” (Mesa, supra, 54 Cal.4th at p. 198.) The court explained that “t would simply limit punishment for the offense to circumstances in which the defendant’s willful promotion, furtherance, or assistance of felonious conduct by a gang member was not also the basis for convicting the defendant of a separate offense—for example, when there are sufficient grounds to convict a defendant under section 186.22, subdivision (a), but insufficient grounds to independently convict the defendant as an accessory.” ([i]Ibid.)

“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).) Although the trial court in this case did not make express findings on the issue of section 654 and the gang offense, “a finding that defendant’s crimes were divisible inheres in the judgment. If that implied finding is supported by the evidence, it must be upheld.” (People v. Nelson (1989) 211 Cal.App.3d 634, 638; see People v. Osband (1996) 13 Cal.4th 622, 730-731.) “We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” (Jones, supra, at p. 1143.) In general, a defendant may raise a claim under section 654 for the first time on appeal. (People v. Hester (2000) 22 Cal.4th 290, 295.)

The probation officer recommended that defendant be given a concurrent four-year term for active participation in a criminal street gang (§ 186.22, subd. (a); count 4). Neither the parties nor the trial court expressly addressed whether section 654 precluded punishment for that offense. In this court, the Attorney General contends that “[t]here is substantial evidence that [defendant] was either an accessory to a gang fight or involved in the fight itself.”

Based on the record, we determine that there is not substantial evidence to support a finding that defendant “willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of th[e] gang” (§ 186.22, subd. (a)), other than the separate offenses for which he was convicted and punished. Defendant undisputedly left the area of a reported gang fight with two passengers in his vehicle. There was a baseball bat in his vehicle, and it was reported that bats and knives were used in the fight. There is not, however, substantial evidence that defendant or any of his passengers engaged in felonious criminal conduct prior to defendant driving them away. Although defendant and his passengers were leaving the scene of a reported gang fight with weapons in their car, there is no evidence concerning their role, if any, in the reported fight, or their relationship, if any, to the participants in the reported fight. There is also no evidence regarding the circumstances of the reported fight, such as who initiated it and whether one or more participants may claim self-defense. In the absence of substantial evidence that defendant “willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of th[e] gang” (§ 186.22, subd. (a)), other than the separate offenses for which defendant was convicted and punished, we determine that the punishment for defendant’s gang offense must be stayed under section 654. (Mesa, supra, 54 Cal.4th at pp. 197-198.)

IV. DISPOSITION

The judgment is ordered modified by staying the four-year term imposed on count 4 for active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)) pursuant to Penal Code section 654. As so modified, the judgment is affirmed.

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