P. v. Gonzalez

Filed 8/14/07 P. v. Gonzalez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Affirmed.

Marleigh A. Kopas, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

1. Introduction^[1]

After two mistrials, a jury finally acquitted defendant in a third trial of burglary (count 1) but convicted him of being a felon in possession of a firearm and being in possession of a concealed weapon (counts 2 and 3). ( 459; 12021, subd. (a)(1); 12025, subd. (b)(3).)

Defendant had previously admitted the gang enhancement allegations regarding counts 1 and 2 ( 186.22, subd.(b)); being a convicted felon with respect to count two; and being an active participant in a criminal street gang with respect to count 3.

The court found true the allegations that defendant had suffered two prior convictions. ( 667, subd. (a).) The court denied defendants request to dismiss his prior strike offenses and sentenced him to a prison term of 38 years to life. ( 667, subds. (b)-(i).) At the time defendant committed the present offenses, he was 19 years old.^[2]

On appeal, defendant challenges the sufficiency of the evidence for count 3, being in possession of a concealed firearm. He also charges instructional and evidentiary error concerning his gang membership. He contends the trial court wrongly excluded hearsay impeachment evidence regarding James Parsons, the chief prosecution witness. He asserts the foregoing constituted cumulative prejudicial error. Finally, he contends the trial court abused its discretion by denying his motion to strike his prior strikeoffenses. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)

We affirm the judgment.

2. Facts

Sometime in 2002, James Parsons and defendant became acquainted because defendants friend, Melanie, stayed at the apartment where Parsons lived with his girlfriend and her two children. After Melanie moved out, defendant tried to intimidate Parsons by kicking or punching the apartments front door. Another time, defendant threatened Parsons with a copper pipe because youre white.

About a week later, on February 20, 2003, Parsons was at home in the evening. Parsons investigated a noise in his bedroom. The bedroom window was about four or five feet off the ground. The screen was off the window and the box fan had fallen to the floor. Defendants face and upper torso were framed by the window. Parson asked defendant to explain what he was doing and defendant raised a gun from below the windowsill and pointed it at Parsons. He did not enter the apartment. Parsons told police defendant was leaning the upper part of his body into the bedroom.

Parsons ran from the room. He did not call the police from the telephone in the bedroom. When defendant left, Parsons called his girlfriend and warned her not to come home because defendant was armed.

Officer Paul Mercado apprehended defendant hiding behind a pickup truck near a Motel 6. Mercado located a loaded .357-Magnum revolver wrapped in a black bandana in or around a nearby planter. There were no fingerprints on the gun or the bullets.

The police took Parsons to the motel where defendant was being detained. Parsons identified the revolver defendant had used by its color. Parsons thought defendant was using methamphetamine at the time of the incident. Parsons testified inconsistently about his own drug use.

Defendants sister, Felicia Gonzales, testified she never saw defendant threaten Parsons. Freddie Bega denied any incidents occurring between him and defendant on November 4 and 5, 2001.

3. Concealed Weapon Offense

In count 3, the jury convicted defendant of violating section 12025: (a) A person is guilty of carrying a concealed firearm when he or she . . . : [] . . .[] (2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person. [] . . . [] (b) Carrying a concealed firearm in violation of this section is punishable, as follows: [] . . . [] (3) Where the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act . . . as a felony. On appeal, defendant maintains that, on review of the entire record in the light most favorable to the judgment, no rational trier of fact could have found beyond a reasonable doubt he had a gun concealed on his person, an essential element of the offense. (People v. Young (2005) 34 Cal.4th 1149, 1180.)

In elaborating on the meaning of concealment, courts have commented: The carrying of concealed firearms is prohibited as a means of preventing physical harm to persons other than the offender. (People v. Jurado [1972] 25 Cal.App.3d 1027, 1032.) [C]oncealment of an essential component of a visible weapon, when done in such a fashion as to make the weapon readily available for use as a firearm, presents a threat to public order comparable to concealment of the entire firearm and falls within the prohibition of section 12025. (People v. Hale (1974) 43 Cal.App.3d 353, 356.)

Here defendant concealed the weapon by hiding it outside the window frame, where Parsons could not see it. It is also most probable, almost certain, that defendant was carrying the gun concealed on his person before he brandished it in front of Parsons. The policy of the law -- to prohibit physical harm by concealment -- was violated. Therefore, sufficient evidence established beyond a reasonable doubt this element of the crime.

In a related claim of error, defendant protests the jury instructions as given omitted the element of concealment: When a jury instruction omits a necessary element of the crime, constitutional error has occurred. (Ho v. Carey (9th. Cir. 2003) 332 F.3d 587, 592.)

The court instructed the jury based on CALJIC No. 12.47.1:

Defendant is accused in Count 3 of having violated section 12025, subdivision (b)(3) of the Penal Code, a crime.

Every person who carries concealed upon his or her person, with knowledge of its presence, any pistol, revolver, or other firearm capable of being concealed upon the person, who is an active participant in a criminal street gang, is guilty of a violation of Penal Code section 12025, subdivision (a)(2)/12025, subdivision (b)(2) 12025, subdivision (a)(2)/12025, subdivision (b)(3) 12025, subdivision (a)(2)/12025, subdivision (b)(4), a crime.

In order to prove this crime, each of the following elements must be proved:

1. A person carried upon his or her person a pistol, revolver, or other firearm capable of being concealed upon the person;

2. The person had knowledge of the presence of the firearm; and

3. The person was at the time an active participant in a criminal street gang.

For purposes of this court, the defendant has admitted that on February 20, 2003, he was an active participant in a criminal street gang.

Defendants objection to the instruction is based on the language which refers to a firearm capable of being concealed upon the person. He reads this to mean the instruction erroneously does not refer to actual concealment. We disagree, however, because we note the instruction expressly refers to a violation occurring when a person carries concealed upon his . . . person and carried upon his . . . person a firearm. The first phrase identified by defendant qualifies the words other firearm and does not negate the element of concealment. The second phrase contains the essential element of carrying upon ones person. The instruction sufficiently instructed the jury and was not constitutional error. (People v. Partlow (1978) 84 Cal.App.3d 540, 558-559; Ho v. Carey, supra, 332 F.3d at p. 592.)

Finally, defendant also criticizes the instructions reference to defendant admitting he was an active participant in a criminal street gang, to the prosecutors repeated characterization of him as a gang member, and to the verdict form designating the crime as GANG MEMBER IN POSSESSION OF A FIREARM. (People v. Avitia (2005) 127 Cal.App.4th 185, 194.) He contends that his gang affiliation, like the status of being a convicted felon, is not an element of the offense of carrying a concealed firearm, but a sentencing factor which serves to elevate the offense from misdemeanor to felony. (People v. Hall (1998) 67 Cal.App.4th 128, 135.) As such, defendant was entitled to exclude that information from the jury. (Ibid.) Rather than using CALJIC No. 12.47.1 as requested by defendant, the court should have given CALJIC No. 12.46.2, omitting defendants admission about gang membership.

The difficulty with defendants argument is that, even if the court had omitted defendants admission of gang affiliation, the information was still presented to the jury in support of the admission of gang enhancement allegations for counts 1 and 2. The reiteration in the instruction on count 3 was simply cumulative and could hardly be deemed prejudicial. Any error was harmless. (People v. Hall, supra, 67 Cal.App.4th at pp. 135-136; Cal.Const., art VI, 13 [no judgment shall be set aside unless the error complained of has resulted in a miscarriage of justice].) We accept the Peoples argument and reject defendants contentions on this point.

4. Gang Expert Evidence

Even though defendant had admitted his gang affiliation, the court permitted gang evidence for the limited purpose of showing defendant was more likely to have a gun because of being a gang member.

Corporal Michael Nielsen, a gang expert, testified that Corona Varrio Locos (CVL) is an Hispanic criminal street gang with numerous cliques in Corona, including the Visioneros. Defendant was an active member of the Visioneros with a gang moniker of Sir Gonzo or Gonzo. Defendant was a foot soldier, committing crimes for the gangs benefit. Possession of a gun is critically important for a gang member and a gang member does not discard a gun unless apprehended by police. Officer Mercado testified similarly.

We review the trial courts ruling on the admissibility of gang evidence for an abuse of discretion: The trial courts ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Avitia, supra, 127 Cal.App.4th at p. 193; People v. Champion (1995) 9 Cal.4th 879, 923, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860.)

Defendant asserts the gang evidence was only tangentially relevant (People v. Cox (1991) 53 Cal.3d 618, 660) to the weapons possession charges and more prejudicial than probative. (Evid. Code, 210 and 352; People v. Bojorquez (2002) 104 Cal.App.4th 335, 337, 343-345.) It also constituted improper evidence of criminal disposition. (Evid. Code, 1101; People v. Ruiz (1998) 62 Cal.App.4th 234, 240.)

Evidence of gang membership is admissible for limited purposes. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369, overruled on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) Here the gang evidence was relevant to refute defendants claim that he did not have a gun on the night of the offenses. The gang evidence was highly relevant to explain why he had a gun and why he ditched it when spotted by the police. For protection and as a gang foot soldier charged with carrying out the gangs mission of committing crimes, he was more likely to possess and conceal a gun. The courts limiting instructions ameliorated any prejudice. By permitting the evidence, the trial court did not exercise its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Avitia, supra, 127 Cal.App.4th at p. 193.)

5. Testimony of Felicia Gonzalez

In defendants first trial, Felicia Gonzalez, defendants sister, testified that Parsons sold drugs to defendant, and Parsons and Felicia both used drugs on that occasion.

In the present third trial, defendant sought to use Felicias testimony to impeach Parsonss testimony that he was not a drug dealer and that he did not sell drugs to defendant. Felicia refused to testify on this point and invoked the Fifth Amendment.

The People concede the trial court erred in declining to admit Felicias former testimony under Evidence Code section 1291, subdivision (a)(2). But the People contend the error was harmless. (People v. Cudjo (1993) 6 Cal.4th 585, 611-612.) We agree. Whether Parsons sold drugs to defendant was a collateral issue with little bearing on whether defendant possessed a concealed weapon. Furthermore, both in the former trial and the present trial, Felicia testified there was no conflict between Parsons and defendant, undermining any defense effort to establish Parsons had a motive to fabricate his testimony against defendant. Finally, the other evidence corroborating defendants account was far stronger than any evidence about Parsons selling drugs to defendant. We conclude it is not reasonably probable the jury would have acquitted defendant if presented with the disputed evidence. (Ibid.) We also conclude beyond a reasonable doubt the error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24.)

Because we determine the court committed only one error at trial, we reject defendants claim of cumulative error. (People v. Roberts (1992) 2 Cal.4th 271, 326; People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.)

6. Romero Motion

Defendant was 19 years old when he committed the present offense. He was 22 years old when he was sentenced in January 2006. He was a gang member and a drug user. His juvenile record began with two theft offenses when he was 14 years old. He committed eight more offenses, including vandalism, robbery, resisting arrest, school disturbance, and marijuana possession, before reaching his majority. His two prior adult offenses, making criminal threats and witness intimidation, were committed against his friend, Bega, concerning a dispute about a girlfriend. During his years in custody, defendant committed many disciplinary violations. Defendant asserts the trial court abused its discretion by not striking either of his two felony priors.

Upon appellate review, a courts failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The Court of Appeal is guided by two fundamental precepts. First, [t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citations.] Second, a decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at pp. 376-377.)

Furthermore, [i]t is not enough to show that reasonable people might disagree about whether to strike one or more prior conviction allegations. [Citation.] Where the record is silent [citation] or [w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance [citation]. Because the circumstances must be extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case--where the relevant factors . . . manifestly support the striking of a prior conviction and no reasonable minds could differ--the failure to strike would constitute an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 378.)

The relevant factors, as identified in Romero, include defendants background, the nature of his present offense, and other individualized considerations. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531.) Additionally, the court must determine whether defendant falls within the spirit of the three strikes law: whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams (1998) 17 Cal.4th 148, 161.)

The trial court considered defendants youth, his gang affiliation, his years of involvement with the criminal justice system beginning in 1998 and increasing in seriousness. Even when incarcerated, defendant continued to engage in criminal behavior. Defendant demonstrated himself unwilling and unable to abide by the law and function in society.

This is not a close case, notwithstanding defendants youth. Reasonable people might agree he should not have received such a severe sentence. Even defendants two victims, Parsons and Bega, wrote letters asking that he be spared a three strikes sentence. We also acknowledge defendants argument that even without his two prior strikes, defendant could receive a prison term of 17 years and with one strike he could receive a term of 20 years. But, based on the foregoing, it is evident the trial court properly understood and exercised its discretion under Romero and Williams in refusing to strike defendants prior strike convictions.

7. Disposition

We affirm the judgment in its entirety.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/King

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1] All statutory references are to the Penal Code unless stated otherwise.

^[2] According to the probation report, his birthday is August 14, 1983.