P. v. Gutierrez

Filed 10/1/07 P. v. Gutierrez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, William Lee Evans, Judge. Affirmed.

Sylvia Whatley Beckham, 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, Assistant Attorney General, James D. Dutton and Deana L. Bohenek, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Defendant Marvin Anthony Gutierrez was convicted of being a felon in possession of a firearm, and street terrorism. Defendant raises a single issue on appeal whether under the conviction of count 4 as described below, there was sufficient evidence he was willfully promoting, furthering, or assisting felonious criminal conduct by the gang of which he was a member by possessing a loaded firearm in his car. We affirm. The prosecutions gang expert properly testified, based on his training and experience, that a gang benefits from a gang members possession of a loaded firearm under the facts of this case; this evidence established defendant willfully promoted, furthered, or assisted the gangs felonious criminal conduct. Therefore, sufficient evidence supported defendants conviction for street terrorism.

Statement of Facts

On June 5, 2005, at approximately 3:30 p.m., defendant was driving his mothers Honda. Officer Daniel Masip stopped defendant after defendant pulled into traffic without looking or stopping, causing Masip to brake abruptly. Defendant admitted to Masip he did not have a drivers license. Masip detained defendant, asked him to get out of the car, patted him down for weapons, and placed him on the rear seat of his patrol car. The passenger in defendants car, Crystal Guerrero, was also asked to get out of the car; she was seated on the curb.

Through the open drivers side door, Masip saw the grip of a firearm protruding from beneath the drivers seat. The gun was loaded. A check of the serial number revealed the gun had been reported stolen in April 2005. Defendant claimed he was unaware there was a gun in the car; he had loaned the car to a man he knew only as Ishmael the evening before he was stopped. When defendant was pulled over, he told Guerrero he was going to be arrested because he had a gun in the car.

Detective Mauricio Estrada testified for the prosecution as an expert on gangs. Estrada opined that defendant was a member of the Delhi street gang on June 5, 2005. (Because the elements of defendants active participation in the gang and the pattern of criminal gang activity are not at issue on appeal, we need not detail the evidence supporting those elements of the crime.)

Estrada testified to the importance of guns in the gang culture: Its easy to purchase guns illegally. Its easy to find guns, and so guns are a big deal in the gang subculture. Theyre used for various reasons, for defense purposes, to defend against rival gangs. In addition theyre used for offensive purposes to commit crimes that benefit the gang or to commit assaults on rival gangs. So theyre used for both purposes, and for gangs guns are a source of power because people that live in these areas might not have access to guns or they dont commonly carry guns so theyre scared of these gang members that have guns. [] And I have talked to numerous victims of gang crimes and residents of these areas. Theyre scared because they know gang members carry guns. Estrada also explained what a gang gun is and how the members of the gang would know the location of the gang gun. Carrying a loaded handgun helps a gang member earn respect. Estrada testified:

Q  . . . And will you gain respect within your own gang from carrying a gun and letting others know about it?

A Yes.

Q How so?

A Youre showing your fearlessness. Obviously its a crime to carry a loaded handgun. If youre out in public or in a vehicle and youre not a police officer or you dont have a [permit to carry a concealed weapon], so by showing that fact that youre a gang member and you have this gun youre showing your fearlessness, disrespect for the law, showing youre willing to commit this act, this illegal act, and show how brave you are, how much you dont care about your life or [the] lives of others.

Q And by committing these crimes that are perpetrated with weapons, how does that enhance respect to the gang?

A It adds to the respect of the gang. It adds to the reputation of the gang. Rival gangs will fear a gang that has access to weapons, is willing to use them, because then they know that if you mess with this gang youre going to have to be careful that they might have a gun or going to use it on you. So the reputation of the gang subculture is raised through the possession of firearms and use of firearms. [] In addition the reputation of the gang is increased in the neighborhoods. The people that live in that neighborhood will learn about this gang having access to weapons. They will become afraid, and the people will be afraid to cooperate with the police as witnesses or victims. And in many of the gang-related crimes that we investigate we run into that problem is that the people are afraid to cooperate with us. Theyre afraid to talk to us because they know that gangs have access to guns.

As set forth post, Estrada opined that the Delhi gang member described in the prosecutions hypothetical would have possessed the gun for the benefit of a criminal street gang.

Q  . . . Assume that a Delhi gang member who has claimed the same, meaning he is a Delhi gang member since 1995, is pulled over in a vehicle coming from the Delhi territory, a search of that car is done and conducted and a loaded 38 special handgun is found underneath that Delhi gang members seat, a female is in the front passenger seat and that admitted Delhi gang member has Delhi tattooed on his chest and his head, based on those facts do you have an opinion as to whether this particular offense was committed for the benefit of a criminal street gang? [] . . . [] Based on those facts do you have an opinion as to whether this particular offense was committed for the benefit or in association with a criminal street gang?

A Yes.

Q And what is that opinion?

A That it was.

Q And what is the basis of your opinion?

A Based on my knowledge and experience and in the many conversations that I had with gang members and all the crimes that I have investigated I am aware that the Delhi gang and Alley Boys gang have an ongoing rivalry, that the Delhi gang members need to be ready to defend themselves. In addition more gang members that Delhi has that carry firearms the better because the more ready theyre going to be able to defend themselves and other Delhi gang members and protect the neighborhood. In addition [it is] going to benefit the gang because it will cause rival gangs to be afraid of this gang and to act against this gang, intimidate the residents of that territory which causes the gang to be able to conduct their activities in the territory without being afraid of having witnesses and victims come forth and cooperate with the police.

Q All right. And assume that same hypothetical but let me add one fact, let me add the fact that this persons previously been convicted of a felony, do you have that in mind?

A Yes.

Q Assuming that additional fact in the hypothetical discussed before, do you have an opinion as to whether or not under those circumstances the offenses of felony possession of a firearm, active gang member having a firearm in a vehicle, gang member having a loaded firearm in public was done to further or assist criminal conduct by Delhi gang members?

A Yes.

Q What is that opinion?

A Essentially what I just said. And in addition a felon[ in] possession of a firearm, that raises the reputation of the person, shows how crazy he is, how much he disregards the law because felons arent allowed to have firearms and so I would say that that adds to it.

Q And raising that persons reputation how does that benefit the gang?

A Well, I would say that the raising of the reputation of a particular gang member also raises the reputation of the gang because they are part of that group. And so if enough people in that group have a good I guess if you can say in a gang subculture a good, reputation as a good gang member, then the reputation of the gang also raises.

Procedural History

Defendant was charged with possession of a firearm after suffering a felony conviction (Pen. Code,  12021, subd. (a)(1) [count 1]); possession of a firearm in a vehicle while an active participant in a criminal gang (id.,  12025, subds. (a)(3), (b)(3) [count 2]); carrying a concealed, loaded firearm in public while an active participant in a criminal street gang (id.,  12031, subd. (a)(1) & (2)(C) [count 3]); and active participation in a criminal street gang (id.,  186.22, subd. (a) [count 4]). The information alleged the acts in counts 1 through 3 were committed for the benefit of, at the direction of, or in association with a criminal street gang with the intent to promote, further, or assist in criminal conduct by the gangs members. (Id.,  186.22, subd. (b)(1).) The information also alleged defendant had suffered four prior strike convictions (id.,  667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)), one prior serious felony conviction (id.,  667, subd. (a)(1)), and had served three prior prison terms (id.,  667.5, subd. (b)). Defendant pleaded not guilty to all four counts, denied the gang enhancement, and denied the prior conviction and prison term allegations.

A jury found defendant guilty of counts 1 and 4, and acquitted him of counts 2 and 3. The jury found the gang enhancement on count 1 not true. Defendant waived his right to a jury trial on the prior conviction allegations, and admitted they were true.

The trial court dismissed three of the four prior strike allegations and the prior prison term enhancement allegations. Defendant was sentenced to nine years in prison: two years on count 4, doubled to four years, plus five years for a serious felony conviction enhancement. The sentence on count 1 was stayed pursuant to Penal Code section 654. Defendant timely appealed.

Discussion

To be found guilty of street terrorism in count 4 herein, a defendant must (1) have actively participated in a criminal street gang, (2) knowing that members of the gang engage in or have engaged in a pattern of criminal activity, and (3) willfully assisted, promoted, or furthered felonious criminal conduct by the gang by directly and actively committing a felony offense or aiding and abetting a felony offense. (Pen. Code,  186.22, subd. (a).)[1] Defendant argues there was insufficient evidence he willfully promoted, furthered or assisted any felonious criminal conduct. Therefore, defendant argues the conviction on count 4, as well as the five-year serious felony conviction enhancement, must be vacated. (Defendant does not argue the sufficiency of the evidence of the elements of his active participation in a criminal street gang, or of the pattern of criminal activity by members of the gang.)

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if upon no hypothesis whatever is there sufficient substantial evidence to support the conviction or the enhancement. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Here, the gang expert testified that, under factual circumstances detailed above, a handgun would be possessed to benefit a criminal street gang. In light of defendants admitted gang affiliation, the location of the gun (visible extending from beneath the drivers seat), and the fact defendant was driving out of claimed Delhi territory, the evidence was sufficient to support a reasonable inference that defendant not only possessed the gun to benefit the gang, but that he did so willfully.

Defendant relies on In re Frank S. (2006) 141 Cal.App.4th 1192, in support of his argument that there was insufficient evidence defendant possessed the gun to willfully promote, further, or assist the gangs felonious conduct. That case, however, is inapposite. At issue in that case was the jurys true finding on a gang enhancement under Penal Code section 186.22, subdivision (b)(1). (In re Frank S., supra, 141 Cal.App.4th at p. 1196.) The gang expert testified to the minors subjective knowledge and intent in possessing a knife, which was impermissible; no other evidence of the minors specific intent was offered. (Id. at p. 1199.) The appellate court concluded that without evidence of the minors specific intent, beyond the impermissible opinion testimony by the expert, the gang enhancement must be reversed. (Ibid.)

Specific intent is not an element of a violation of Penal Code section 186.22, subdivision (a), and In re Frank S. does not address the issue presented by this appeal. In this case, defendant, an admitted gang member, was driving a car with a loaded firearm under the drivers seat. The prosecutions expert witness testified, based on his training and experience, the possession of a loaded firearm by a gang member benefits the gang in numerous ways. An expert may properly testify whether and how a crime was committed to benefit or promote a gang [citations]. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657.) There was substantial evidence supporting the street terrorism charge.

Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

OLEARY, J.

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[1] Penal Code section 186.22, subdivision (a) reads as follows: Any 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, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.