P. v. Salgado

Filed 6/6/06 P. v. Salgado CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

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 L. Evans, Judge. Affirmed in part, reversed in part and remanded.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil P. Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Josue Vergara Salgado (defendant) of first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a); all further statutory references are to the Penal Code unless otherwise stated), street terrorism (§ 186.22, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)) and misdemeanor resisting arrest (§ 148, subd. (a)(1)). The jury also found defendant committed robbery for the benefit of, at the direction of, or in association with the Southside Huntington Beach (Southside) criminal street gang. (§ 186.22, subd. (b)(1).)

The trial court sentenced defendant to four years, the middle term for robbery (§ 213, subd. (a)(1)(B)), a two-year concurrent term for possession of methamphetamine, and stayed punishment for street terrorism, pursuant to section 654. Because robbery is a violent felony as defined in section 667.5, subdivision (c)(9), defendant received a consecutive 10-year prison term for the criminal street gang enhancement (§ 186.22, subd. (b)(1)(C), for an aggregate prison term of 14 years.^[1]

On appeal, defendant argues the trial court erroneously admitted various statements he made to police officers in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and contends the court committed prejudicial instructional error by not specifying CALJIC No. 3.31, the standard instruction on the necessary union of conduct and specific intent, applied to the criminal street gang enhancment allegation, failed to give CALJIC No. 2.02, the standard instruction on the sufficiency of circumstantial evidence to prove specific intent, and erroneously gave CALJIC No. 2.52, the standard instruction on flight as evidence of consciousness of guilt. Defendant also challenges the sufficiency of the evidence to support the jury's true finding on the criminal street gang enhancment.

We conclude insufficient evidence supports the jury's true finding on the criminal street gang enhancment and therefore reverse the jury's finding. In all other respects, the judgment is affirmed. The case is remanded for a new sentencing hearing.

I

FACTS

In August 2004, Mario Martinez rented a room from Huntington Beach resident Minerva Flores. At around 11:00 a.m. on August 27, Flores responded to a knock on her front door. Defendant, Flores' former neighbor, asked to see Martinez. Flores directed defendant upstairs to Martinez's room. She heard defendant and Martinez engage in not â€