P. v. Gonzales

 

 

 

 

 

 

 

 

 

 

 

 

Filed 9/3/13  P. v. Gonzales 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

 
>

THE PEOPLE,         Plaintiff and Respondent,                            v.   MICHAEL CONTRERAS GONZALES,         Defendant and Appellant.

G043384            (Super. Ct. No. 09WF0504)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, M. Marc Kelly, Judge.  Affirmed in part, reversed in part, and
remanded for resentencing.

                        Christopher Nalls, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W.
Schons and Julie L. Garland, Assistant Attorneys General, Pamela Ratner Sobek,
Meredith S. White, Donald W. Ostertag, James D. Dutton and Marissa Bejarano,
Deputy Attorneys General, for Plaintiff and Respondent.

*                *                *

> 

>Introduction

A
jury convicted Michael Contreras Gonzales of possession of methamphetamine for
use and several other offenses, including active participation in a criminal
street gang under Penal Code section 186.22, subdivision (a)
(section 186.22(a))href="#_ftn1"
name="_ftnref1" title="">[1]
(count 3) and carrying a loaded firearm in a vehicle while an active
participant in a criminal street gang
under former section 12031, subdivision (a)(1) and (2)(C) (count 5).href="#_ftn2" name="_ftnref2" title="">[2]  The jury found true the gang enhancement
allegation under section 186.22, subdivision (b)(1)
(section 186.22(b)(1)).  The trial
court vacated the verdict on and dismissed count 3 because it was a lesser
included offense of count 5.  The court
sentenced Gonzales to an eight‑year prison term.

We
affirmed the judgment.  The Supreme Court
granted review of our opinion and deferred further action pending consideration
and disposition of a related issue or further order.  After issuing its opinion in >People v. Rodriguez (2012) 55 Cal.4th
1125 (Rodriguez), the Supreme Court
transferred this case to us with directions to vacate our decision and
reconsider the cause in light of Rodriguez.  Following transfer, the parties submitted
supplemental briefs pursuant to California Rules of Court,
rule 8.200(b). 

We
have reconsidered the cause in light of Rodriguez,
supra, 55 Cal.4th 1125, and have
considered the parties’ supplemental briefs. 
Based on Rodriguez, we now
reverse the conviction on count 5 and remand for resentencing.  In all other respects, we affirm the
judgment. 

Facts

I.

Gonzales’s Arrest and Interview by the Police

In
March 2009, Orange County Sheriff’s deputies, working undercover, approached
Gonzales as he sat in his parked car in an alley in the City of Stanton.  The alley was in an area claimed by two rival
gangs—Big Stanton and 18th Street.  When the deputies asked Gonzales if he had
anything on him, he replied he had a gun and some methamphetamine.

The
deputies opened the car door, handcuffed Gonzales, and removed him from the
car.  The deputies searched Gonzales and
found in a front trouser pocket a plastic bottle holding six plastic baggies
containing a total of one gram of methamphetamine, and $140 in his wallet.  The deputies searched Gonzales’s car and
found a loaded handgun under the driver’s seat and a hypodermic syringe.  The gun was not registered in Gonzales’s name.  He claimed to have bought it from someone for
$400 and suspected it might have been stolen.

Gonzales
told the deputies he used methamphetamine and heroin, had injected drugs that
day, using the syringe found in his car, and was in the alley to drop off a
friend who sold drugs.  Gonzales also
sold drugs and used the money to pay for diapers and baby food and to support
his drug habit.

The
deputies noticed Gonzales had several tattoos, one of which said “Stanton,”
another which said “Raiders,” and another which said “OC.”  When a deputy asked Gonzales about gang
membership, he replied, “Big Stanton.” 
For his residence, Gonzales gave the deputies a Garden
Grove address.

Gonzales
was interrogated by Orange County Sheriff’s Deputy Kevin Navarro, who was part
of the gang enforcement team and had been assigned to monitor the Big Stanton
gang.  Gonzales said he grew up among Big
Stanton gang members, had been “jumped into” (i.e., beaten up by) the gang when
he was 11 years old, was in good standing with the gang, and had recently
spoken by cell phone with Big Stanton gang members.  When Navarro asked Gonzales why he had the
gun, he replied, “because 18 is out to get us.” 
Navarro asked, “is us Stanton?” 
Gonzales answered, “yes.”

II.

Navarro’s Expert Testimony

Navarro
also testified as an expert on criminal
street gangs.  As such, he explained
Hispanic gang culture, including the importance of territory and the use of
fear and threats of violence to maintain claimed territories and establish
areas for business, usually drug sales. 
Navarro testified gangs use violence to secure control over a claimed
territory and weapons are important in gang culture as protection from rivals
and as a display of power.  Gang members
use tattoos to show gang allegiance, “[i]t’s kind of like graffiti, but it’s on
your body.”

Navarro
testified Big Stanton is a Hispanic criminal street gang and claimed territory
which included the alley in which Gonzales was arrested.  Big Stanton and 18th Street are rival gangs.  Big Stanton tattoos include “STN,” “BSTN,”
“Big STN,” and “Big Stanton.”

Big
Stanton’s primary activities include drug sales and weapons offenses.  According to Navarro, three members of Big
Stanton had been arrested for selling drugs and admitted they had done so for
the gang’s benefit.  Anyone selling drugs
in Big Stanton’s claimed territory would have been expected to pay “taxes” to
Big Stanton.

Navarro
testified the term “good standing” means a participating gang member who is not
in trouble with the gang.

Navarro
opined Gonzales was an active member of Big Stanton at the time of his arrest
in March 2009, based on the following facts:

1.  When Navarro interrogated Gonzales after his
arrest, Gonzales said he had been jumped into Big Stanton at age 11, knew
several Big Stanton gang members, and recently had spoken with a known Big
Stanton gang member.

2.  When Navarro asked about the gun, Gonzales
replied he bought the gun three months earlier because “18 is out to get
us.”  Gonzales confirmed that “us” was
Big Stanton.  The use of the word “us”
was significant to Navarro because it showed Gonzales was “speaking for the
gang.”

3.  Gonzales was arrested with a gun in an alley
claimed both by Big Stanton and its foe, 18th Street.  Navarro testified Gonzales would not have
needed the gun for protection if he were not an active participant of Big
Stanton.

4.  Gonzales knew 18th Street and Big Stanton
were rival gangs.  This demonstrated
Gonzales knew “the current politics.”

5.  Gonzales said he was in “good standing” with
Big Stanton.

6.  Gonzales had several Big Stanton tattoos on
his body.

7.  Field identification cards from 1997, 1998,
2003, and 2005 indicated Gonzales had informed law enforcement officers he was
a member of Big Stanton.

Based
on a hypothetical mirroring the facts of this case, Navarro testified the
offenses of possession of methamphetamine for sale, possession of a firearm by
a felon, and possession of a loaded firearm in public by an active gang member
were committed to promote and benefit the gang.

III.

Gonzales’s Testimony

Gonzales
testified that in August 2005, he pleaded guilty to resisting arrest and, in
the plea form, admitted he was an active participant in a criminal street
gang.  Also in August 2005, Gonzales
signed a California Street Terrorism Enforcement and Prevention Act
(§ 186.20 et seq.) form acknowledging he had been advised that Big Stanton
was a criminal street gang.  In September
2005 and February 2006, Gonzales signed field identification cards stating he
was a member of Big Stanton.

Gonzales
testified he grew up in an area claimed by Big Stanton and was jumped into the
gang when he was 11 years old.  The gang
members fed him, clothed him, and treated him like family.  When he was 13, he got a Big Stanton tattoo
across his chest.  He stopped associating
with Big Stanton gang members when he became a father several years before he
was arrested, and had an “STN” tattoo removed from his hand so he could get a
job without drawing attention to himself.

Gonzales
testified he started using drugs about two years before his arrest in March
2009.  He described his drug use as “bad”
and explained the quantity of drugs he had been using at the time of his
arrest.  The methamphetamine in his
possession when he was arrested was for his own use, not for sale.  He lived in Tustin, and had driven to the
alley in Stanton to find his heroin dealer to buy heroin.

Gonzales
testified he bought the gun about three months before his arrest in order to
commit suicide.  He denied telling the
arresting officers he was an active gang member, and denied telling Navarro he
bought the gun for protection or that 18th Street was out to “get us.”  Gonzales testified he would not buy drugs
from Big Stanton gang members because he wanted no more contact with the gang.

 

Procedural History

An
amended information charged Gonzales with six counts.  At the close of evidence, count 6
(carrying a loaded firearm in public while not a registered owner) was
dismissed on the prosecution’s motion. 
The jury found Gonzales not guilty of the offense charged under count 1
of the amended information for possession of a controlled substance for sale
(Health & Saf. Code, § 11378), but convicted him of the lesser
included offense of simple possession of a
controlled substance (id.,
§ 11377).  The jury convicted
Gonzales of the crimes charged in counts 2 through 5 as follows:

>Count 2: 
Possession of a controlled substance while in possession of a
firearm.  (Health & Saf. Code,
§ 11370.1, subd. (a).)

>Count 3: 
Active participation in a criminal street gang.  (§ 186.22(a).) 

>Count 4: 
Possession of a firearm by a felon. 
(§ 12021, subd. (a)(1).)

>Count 5: 
Carrying a loaded firearm in public or a vehicle while an active
participant in a criminal street gang. 
(§ 12031, subd. (a)(1) & (2)(C).)

On
counts 2, 4, and 5, the jury found true allegations Gonzales committed
those felonies for the benefit of, at the direction of, or in association with
a criminal street gang and, on count 5, made a specific finding Gonzales
was an active participant in a criminal street gang.  The trial court found true an allegation
Gonzales had a prior conviction for robbery qualifying as a strike prior, but
at sentencing struck the prior in the interests of justice.  The trial court denied Gonzales’s motion for
a new trial.  The trial court vacated the
verdict on and dismissed count 3 because it was a lesser included offense
of count 5.  For purposes of
sentencing, the court struck the gang enhancements on counts 2 and 5.  The court sentenced Gonzales under counts 2
and 5, and stayed execution of sentence under counts 1 and 4. 

Gonzales
does not challenge his convictions for the substantive offenses charged under
counts 1, 2, and 4.  He contends the
evidence was insufficient to support his convictions under counts 3 and 5,
the substantive gang counts, and was insufficient to support the true findings
on the gang enhancements imposed on counts 2, 4, and 5. 

 

Discussion

I.

Substantive Gang‑related Offenses (Counts 3 and 5)

The
jury convicted Gonzales of two substantive gang‑related offenses:  active participation in a criminal street
gang under section 186.22(a) (count 3) and carrying a loaded firearm
in public or a vehicle while an active participant in a criminal street gang
under section 12031, subdivision (a)(1) and (2)(C)
(count 5).  We address only
count 5 because the trial court vacated the verdict on and dismissed
count 3. 

Section 186.22(a)
imposes punishment on “[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.”  Former section 12031, subdivision (a)(1)
and (2)(C) elevated from a misdemeanor to a felony the offense of carrying a
loaded firearm on one’s person, in a vehicle, or in a public place when
committed by an active participant in a criminal street gang as defined in
section 186.22(a).  “Thus, carrying
a loaded firearm in public becomes a felony under section 12031(a)(2)(C)
when a defendant satisfies the elements of the offense described in
section 186.22(a).”  (>People v. Robles (2000) 23 Cal.4th 1106,
1115.)

In
Rodriguez, supra, 55 Cal.4th at page 1132, the California Supreme Court
held a sole perpetrator cannot be convicted of violating
section 186.22(a).  The court
concluded the plain meaning of section 186.22(a) “requires that felonious
criminal conduct be committed by at least two gang members, one of whom can
include the defendant if he is a gang member.” 
(Rodriguez, >supra, at p. 1132.)

In
this case, there is insufficient evidence that Gonzales acted with one or more
gang members in committing felonious criminal conduct.  The Attorney General concedes this
point.  As a consequence, the evidence
was insufficient to support a conviction on count 3, the substantive gang
offense under section 186.22(a). 
Because satisfaction of the elements of section 186.22(a) was
necessary for a conviction under former section 12031, subdivision (a)(2)(C)
(People v. Robles, >supra, 23 Cal.4th at p. 1115), the
conviction under count 5 must be reversed.

II.

Gang Enhancement Under Section 186.22(b)(1)

A.  Application
of Rodriguez to the Enhancement

Gonzales
argues that the gang enhancement under section 186.22(b)(1), as
section 186.22(a), cannot apply when a defendant acted alone.  We disagree. 
In the majority opinion in Rodriguez,
Justice Corrigan explained:  “Contrary to
the Attorney General’s suggestion, our conclusion does not lead to absurd results.  A lone gang member who commits a felony will
not go unpunished; he or she will be convicted of the underlying felony.  Further, such a gang member would not be
protected from having that felony enhanced by section 186.22(b)(1), which
applies to ‘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 . . . .’ 
Because the gang enhancement under section 186.22(b)(1) requires
both that the felony be gang related and that the defendant act with a specific
intent to promote, further, or assist the gang, these requirements provide a
nexus to gang activity sufficient to alleviate due process concerns.  [Citation.]” 
(Rodriguez, >supra, 55 Cal.4th at pp. 1138‑1139.)

In
his concurring opinion, Justice Baxter agreed with the majority that the gang
enhancement can apply to a lone perpetrator. 
He explained:  “I recognize, of
course, that a seemingly similar reference to gang ‘members’ appears in >both section 186.22(a) >and section 186.22(b)(1).  However, small but significant differences in
grammar and context make clear that the enhancement provision lacks the same
multiple‑actor condition as the gang offense.  [¶] 
First, section 186.22(b)(1), unlike section 186.22(a), applies
where the defendant, even if acting alone, ‘specific[ally] inten[ds]’ by his
felonious action to promote, further, or assist in any criminal conduct by gang
members.  Section 186.22(b)(1)’s
reference to promoting, furthering, or assisting gang members thus merely
describes a culpable mental state.  By contrast, the gravamen of
section 186.22(a) is that the defendant’s own criminal >conduct must itself directly promote,
further, or assist felonious criminal conduct by members of the gang.  Thus, section 186.22(a) implies joint
criminal action with other gang
members—an implication that does not necessarily arise in
section 186.22(b)(1).  This
difference suggests we need not construe gang ‘members’ in each provision the
same way.  [¶]  The relevant two subdivisions also treat
criminal conduct by gang ‘members’ differently. 
As noted, section 186.22(a) plainly requires felonious href="http://www.mcmillanlaw.com/">criminal conduct committed in tandem by
at least two gang members, one of whom may be the defendant.  In contrast, nothing in
section 186.22(b)(1) states or implies that the criminal conduct by gang
members which the defendant intends to promote, further, or assist >is the same criminal conduct underlying
the felony conviction subject to enhancement. 
For this reason too, the direct and specific link between criminal
conduct committed by the defendant and that committed by other gang members set
forth in the gang offense (§ 186.22(a)) is not present in the gang
enhancement (§ 186.22(b)(1)).”  (>Rodriguez, supra, 55 Cal.4th at pp. 1140‑1141 (conc. opn. of
Baxter, J.).)

Gonzales
points out that in our original opinion, we held the enhancement under
section 186.22(b)(1) can apply when the defendant acted alone because, we
concluded, a defendant acting alone may be convicted of the substantive offense
under section 186.22(a).  Since the
latter conclusion was incorrect under Rodriguez,
Gonzales argues the former conclusion must be incorrect too.  But our original opinion in the matter was
vacated by order of the California Supreme Court; the Supreme Court opinion in >Rodriguez now directs our decision.

Thus,
based on Rodriguez, we conclude the
enhancement under section 186.22(b)(1), unlike the substantive offense
under section 186.22(a), can apply when the defendant acts alone. 

B.  Sufficiency
of the Evidence

Gonzales
argues substantial evidence did not support the jury’s true finding on the gang
enhancement under section 186.22(b)(1) because there was no evidence he
possessed the methamphetamine or the gun with the specific intent to promote,
further, or assist in criminal conduct
by gang members.

“In
considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.  [Citation.]  We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from the
evidence.  [Citation.]  If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding.  [Citation.]  ‘A reviewing court neither reweighs evidence
nor reevaluates a witness’s credibility.’ 
[Citation.]”  (>People v. Albillar (2010) 51 Cal.4th 47,
59‑60 (Albillar).)

The
gang enhancement under section 186.22(b)(1) states, in relevant part:  “[A]ny 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, upon conviction of that felony,
in addition and consecutive to the punishment prescribed for the felony or
attempted felony of which he or she has been convicted, be
punished . . . .” 

The
enhancement under section 186.22(b)(1) has two prongs.  The first prong is the defendant’s conviction
“of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang” (§ 186.22(b)(1)); that is, the
crime was gang related.  (>Albillar, supra, 51 Cal.4th at pp. 59‑60.)  The second prong is the defendant committed
the crime “with the specific intent to promote, further, or assist in any
criminal conduct by gang members.” 
(§ 186.22(b)(1).)  The
enhancement does not require the defendant act with the specific intent to promote,
further, or assist a gang; “the statute requires only the specific intent to
promote, further, or assist criminal conduct by gang members.”  (>Albillar, supra, at p. 67.) 

As
to the first prong, we agree with Gonzales that possession of the
methamphetamine was not gang related. 
“Not every crime committed by gang members is related to a gang.”  (Albillar,
supra, 51 Cal.4th at
p. 60.)  Gonzales was convicted of
possession for use and was acquitted of possession for sale.  There was no evidence Gonzales purchased or
possessed the methamphetamine “for the benefit of, at the direction of, or in
association with” Big Stanton.

The
evidence was sufficient, however, to establish Gonzales’s possession of the gun
was gang related.  When Navarro asked
about the gun, Gonzales replied he bought the gun three months earlier because
“18 is out to get us” and “protection for us.” 
Gonzales confirmed that “us” was Big Stanton.  Big Stanton and 18th Street were in a turf
war over the area in which Gonzales was arrested.  Navarro testified Gonzales had the gun for
protection and would not need it if he were not an active participant of Big
Stanton.  From this evidence, the jury
could draw the inference Gonzales possessed the gun in association with the Big
Stanton gang as protection against rival gang members. 

As
to the second prong, the California Supreme Court concluded in >Albillar that section 186.22(b)(1)
requires the specific intent to promote, further, or assist in any criminal
conduct by gang members, including the offense sought to be enhanced.  (Albillar,
supra, 51 Cal.4th at
p. 66.)  Gonzales argues the only
evidence of his specific intent came from Navarro, who, in response to a
hypothetical based on the facts of this case, testified the hypothetical
defendant committed the crimes to promote and further the gang.  The question and response elicited by the
hypothetical addressed the wrong issue under the second prong of
section 186.22(b)(1)—the relevant issue is specific intent to promote,
further, or assist in criminal conduct by gang members, not to promote or
further the gang.  (Albillar, supra, at
p. 67.)

Nonetheless,
there was sufficient evidence aside from Navarro’s testimony from which a
rational jury could find that Gonzales possessed the gun with the specific
intent to promote, further, or assist in criminal conduct by gang members.  The evidence was sufficient to support a
finding Gonzales was an active participant of Big Stanton at the time of his
arrest and he possessed the gun in association with the Big Stanton gang as
protection against rival gang members.href="#_ftn3" name="_ftnref3" title="">[3]  Possession of the gun was unlawful because
Gonzales was a felon, in possession of methamphetamine, and an active
participant of a criminal street gang.

name=clsccl12>Relying on In re
Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.), Gonzales argues the act of carrying a weapon for
self‑protection is insufficient to meet the requirement of
section 186.22(b)(1) of intent to benefit the gang.  In Frank S.,
supra, 141 Cal.App.4th at
page 1195, a police officer stopped the defendant, a minor, for failing to
stop at a traffic light while riding a bicycle. 
The officer discovered the minor was in possession of some
methamphetamine and a concealed knife.  (>Ibid.) 
The minor said he had been attacked two days earlier and carried the
knife for protection against gang members who believed he supported rival
gangs.  (Ibid.)  At the jurisdiction
hearing, a prosecution expert on gangs testified she believed the minor was an
active gang participant, possessed the knife to protect himself, and possessed
the knife to benefit fellow gang members by providing them protection.  (Id.
at pp. 1195‑1196.)  The
juvenile court found true against the minor, among other counts, one count of
carrying a concealed dirk or dagger with an enhancement under
section 186.22(b)(1).  (>Frank S., supra, at p. 1194.)

The
appellate court reversed the true finding on the enhancement for the reason no href="http://www.mcmillanlaw.com/">substantial evidence supported the
element of specific intent to promote, further, or assist in any criminal
conduct by gang members.  (>Frank S., supra, 141 Cal.App.4th at pp. 1194‑1195.)  The court concluded the expert’s opinion the
minor carried the knife for the benefit of the gang was improper, and, aside
from that opinion, the prosecution offered no evidence of the intent element of
section 186.22(b)(1).  (>Frank S., supra, at p. 1199.)  The
court noted the prosecution presented no evidence the minor was in gang
territory, had gang members with him, or had any reason to expect to use the
knife in a gang‑related offense.  (>Ibid.)

Here,
by contrast, the prosecution presented evidence Gonzales was in an area that
was the subject of a turf war between Big Stanton and 18th Street and had the
gun with him because 18th Street was out to get “us.”  He had every reason to expect to use the gun
in gang-related conduct.

III.

Motion for a New Trial

A.  Background

After
the jury rendered its verdict, Gonzales moved for a new trial on the
gang-related counts and enhancement.  He
argued the jury verdict acquitting him of possession of methamphetamine for
sale undermined Navarro’s expert opinion because it was based on the assumption
Gonzales was selling methamphetamine to benefit the Big Stanton gang.  As a result, he argued, the verdict was
contrary to the evidence.  Because we are
reversing the conviction on count 5, and the trial court vacated the
verdict on and dismissed count 3, we review the order denying Gonzales’s
motion for a new trial only as to the gang enhancement under
section 186.22(b)(1).

The
trial court reviewed the relevant portions of the trial transcript and denied
the motion for a new trial.  The court
concluded the verdict acquitting Gonzales of possession of methamphetamine for
sale was not “fatal to the expert’s opinion given the totality of the circumstances
and everything that the expert relied on.” 
Although Navarro’s expert opinion was “a big portion” of the
prosecution’s case, the court explained other facts supported the jury’s
verdict on the gang‑related counts. 
The trial court found:  “[T]he
fact that defendant was arrested in Big Stanton territory, the fact that the
expert testified that there had been a struggle in the area for control and
that the rivals have been active in that area, the defendant’s own admissions
that he had a loaded firearm for protection against his rivals, specifically
telling the detective that, quote, ‘18 is out to get us’ and acknowledges that
‘us’ was Stanton.  [¶] . . .
[¶]  The fact that it . . .
appeared to the expert the defendant was actively participating in Big Stanton,
still sporting the tattoos and the gang paraphernalia so to speak, still had
contacts and was knowledgeable with the gang situation on the day that he was
arrested.  He admitted still [being] in
good standing with the neighborhood . . . .  [¶] 
The defendant also admitted that he had made contact with
. . . active participants of Big Stanton.  So it’s not just solely speculation in the
court’s eyes.”  The court noted the
jury’s verdict acquitting Gonzales of possession of methamphetamine for sale
showed “the jury looked at each crime individually and came to a conclusion
with respect to each crime and then looked at the separate enhancements if
there was a guilty verdict on the underlying crime.” 

B.  Legal
Standards

Section 1181,
subdivision 6 provides that a trial court may grant a new trial when the
verdict is contrary to the evidence.  “In
deciding such a motion, the trial court’s function is to ‘see that the jury
intelligently and justly perform[ed] its duty and, in the exercise of a proper
legal discretion, to determine whether there is sufficient credible evidence to
sustain the verdict.’  [Citation.]  The trial court’s duty is to review the
evidence independently and satisfy itself that the evidence as a whole is
sufficient to sustain the verdict. 
[Citation.]”  (>People v. Dickens (2005) 130 Cal.App.4th
1245, 1251.)

“On
appeal, a trial court’s ruling on a motion for new trial is reviewed for abuse
of discretion.”  (People v. Guerra (2006) 37 Cal.4th 1067, 1159 [disapproved on
another ground in People v. Rundle
(2008) 43 Cal.4th 76, 151], citing People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 128; see People v. Lewis (2001) 26 Cal.4th 334, 364.)  “The trial court’s factual findings, express
or implied, will be upheld if supported by any substantial evidence.  [Citation.]” 
(People v. Dickens, >supra, 130 Cal.App.4th at p. 1252,
citing People v. Sheran (1957) 49
Cal.2d 101, 109.) 

Citing
People v. Ault (2004) 33 Cal.4th 1250
(Ault), Gonzales argues the standard
of review for an order denying a motion for a new trial is de novo.  In Ault,
the Supreme Court concluded an order granting a criminal defendant’s motion for
a new trial based on prejudicial juror misconduct is reviewed under an abuse of
discretion standard.  (>Id. at p. 1255.)  In contrast, an order denying such a motion
is subject to independent review.  (>Ibid., citing People v. Nesler (1997) 16 Cal.4th 561.)  Ault
expressly limited this standard of review to the trial court’s finding of
prejudice resulting from juror misconduct. 
(Ault, supra, at p. 1267, fn. 9; see People v. Collins (2010) 49 Cal.4th 175, 242, fn. 31.)  Supreme Court cases since >Ault have applied the abuse of
discretion standard to the review of orders denying a criminal defendant’s
motion for a new trial.  (E.g., >People v. Guerra, supra, 37 Cal.4th at pp. 1159‑1160; People v. Coffman and Marlow, supra,
34 Cal.4th at p. 128.)  We do too.

C.  Application

The
trial court did not abuse its discretion by denying Gonzales’s motion for a new
trial as to the gang enhancement.  The
record reflects the trial court carefully, thoroughly, and independently
reviewed the evidence and satisfied itself the evidence supported the true
finding on the enhancement allegation.  The court considered the proper weight to be
given the evidence, including Navarro’s opinion testimony, and made findings on
the record to support its decision.

Those
findings were supported by substantial
evidence.  Earlier in this opinion,
we concluded, as did the trial court, substantial evidence supported the gang
enhancement under section 186.22(b)(1) notwithstanding the jury verdict
acquitting Gonzales of possession of methamphetamine for sale.  The true finding on the enhancement under
section 186.22(b)(1) was supported by evidence of Gonzales’s unlawful
possession of a gun.  Navarro’s opinion
that Gonzales was an active participant of Big Stanton was not premised on an
assumption he possessed methamphetamine for sale. 

As
we have explained, the gang‑related felony requirement for the
enhancement under section 186.22(b)(1) was satisfied by the unlawful
possession of the gun.  The specific
intent requirement of section 186.22(b)(1) requires only intent to
promote, further, or assist in “any criminal conduct” by gang members; it does
not require intent to promote, further, or assist the gang.  Thus, Navarro’s opinion the defendant in the
hypothetical committed the crime of selling methamphetamine to promote and
further the gang had no bearing on the issue whether Gonzales possessed the gun
to promote, further, or assist in his own criminal
conduct.

Gonzales
argues he should have been given a new trial on due process grounds because he
“deserves to have a jury consider gang evidence that is not based on testimony and opinions that were rejected.”  Navarro’s opinion testimony that the
hypothetical defendant was selling methamphetamine to benefit the gang did not
render the trial “fundamentally unfair.” 
(People v. Partida (2005) 37
Cal.4th 428, 439, italics omitted; Estelle
v. McGuire (1991) 502 U.S. 62, 70.) 
The prosecution merely presented testimony to support a theory the jury
rejected.  Navarro’s opinion on
possession for sale to benefit the gang did not improperly influence the jury;
to the contrary, as the trial court pointed out, the jury’s acquittal on the
count for possession of methamphetamine for sale demonstrates the jury
considered each crime individually.

 

Disposition

The judgment as to count 5 is
reversed and the matter is remanded for resentencing.  In all other respects, the judgment is
affirmed.

 

 

                                                                                   

                                                                                    FYBEL,
J.

 

WE CONCUR:

 

 

 

O’LEARY, P. J.

 

 

 

BEDSWORTH, J.