P. v. Solomon

Filed 9/6/06 P. v. Solomon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Lawrence Jones, Judge.

Katherine Hart, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

Defendant Monette Demond Solomon was convicted of one count of unlawful possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)^[1]), and one count of unlawful possession of ammunition (§ 12316, subd. (b)(1)). In addition, the jury found that he committed each crime for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) He appeals, challenging the street gang enhancements and claiming there was insufficient evidence to convict him of the unlawful possession of ammunition. We affirm.

Facts

On January 20, 2005, Fresno police officer Louis Sanchez was working in plain clothes on the parole apprehension team when, from his vehicle, he saw defendant riding a bicycle in circles at an intersection. It appeared that defendant and a male standing on the corner were talking. Sanchez thought that defendant was Travis Moore, a wanted parolee.

Defendant made eye contact with Sanchez and pedaled away slowly. Defendant appeared nervous and kept watching Sanchez. Defendant was wearing a green jersey bearing the numeral 12.

Sanchez sped up to defendant, announced that he was a police officer, and told defendant to stop. Defendant sped off. Sanchez chased him. Defendant jumped off the bicycle and ran. Sanchez called for assistance and tried to locate defendant. Sanchez believed that defendant was in an apartment complex.

Shortly after defendant fled, Sanchez saw Krystal White and Tiffany Tyler come out of the apartment complex. Tyler was wearing a black jacket. White and Tyler met up with the man defendant had been talking to and they continued walking. Sanchez asked the man to wait; he refused and continued to walk away.

Sanchez turned his attention to the apartments to see if he could locate defendant. He found an apartment where a fence had been knocked down. The occupants of that apartment gave Sanchez permission to search, but he did not find defendant. Sanchez noticed that the fence between the apartment he had searched and apartment No. 101 was broken. Sanchez turned his interest to apartment No. 101.

As Sanchez continued to look around, White and Tyler came back. Sanchez spoke to White and told her the police were chasing someone and he might be inside of her apartment. She said that she lived in apartment No. 101 and there should be no one inside except for her children. Sanchez perceived White to be nervous. White and Tyler went into the apartment. In the meantime, backup officers had arrived and set up a perimeter around the apartment.

Within a few minutes Sanchez knocked on White's door. He asked her who was inside, and she responded that she was there with her children. Sanchez then saw defendant step out into the hallway area. Sanchez told defendant to come to the front door. Defendant walked toward the back door then came back into the hallway area. Defendant was reluctant to come out, but he eventually came out and was taken into custody.

White gave Sanchez permission to search her apartment. Sanchez discovered an ammunition box of sixteen .357 rounds underneath a black shirt and a black jacket on top of a couch cushion. The jacket was the same jacket Tyler had been wearing when she left the apartment earlier.

Sanchez went into the first small bedroom. The room had children's clothing and toys scattered all over the floor. In addition, there was a hamper in the room. The closet door was open, there was a chair inside the closet, and pieces of insulation were on top of the chair. The access door to the attic was moved halfway over.

Sanchez crawled into the attic to see if someone was hiding there or if something may have been discarded. He saw the arm of an infant's tee-shirt sticking out of the insulation. As he pulled the tee-shirt out, he could tell that it was heavy. The tee-shirt contained a .38 caliber revolver. The gun was loaded.

Sanchez found the jersey that defendant had been wearing at the bottom of the hamper underneath baby clothing in the same room where he found the gun.

Defendant spoke to Sanchez at the police station. Defendant told Sanchez that he ran because he thought Sanchez was a member of a rival gang (Strother Gang) and was there to try to shoot him. Sanchez rolled his eyes, and defendant then said he knew Sanchez was a police officer; he was frightened because he did not know why Sanchez was trying to arrest him.

White testified that she had been living at the apartment since early January of 2005. She shared the apartment with her three small children. Tyler had been living with her for the last week. She testified that her apartment is in Modoc gang territory. Her boyfriend is a Garrett Street gang member, but he was currently incarcerated.

On the evening of January 19, 2005, White, Tyler, and White's three children slept in the apartment. Tyler slept on the couch. White knew defendant, and he had been visiting at her apartment on the evening of January 19, 2005 with some other people. On the morning of January 20, 2005, defendant walked into her apartment through the back door and asked if he could use her telephone. He was wearing a black jacket and a green jersey.

Tyler woke up and mentioned going to the store. White asked defendant if he would stay in the apartment with her children while she and Tyler went to the store. He said he would.

White and Tyler walked to the market. They met a man on the corner and walked together to the store. They returned to the apartment several minutes later. White told defendant that the police were outside and the apartment was surrounded. Defendant looked nervous and White told him he had better get out of her apartment.

There was a knock on the door. Defendant told White not to open the door. White opened the door. Sanchez saw defendant and he was taken into custody.

White testified that she did not have a chair in the closet of the front bedroom. She testified that if anything had been lying on the couch earlier she would have picked it up. Defendant called White that evening after he was arrested and suggested what White should say to the police.

Tyler testified that she had been living with White for approximately one week. She kept her belongings in the front bedroom, but she slept on the couch. When she woke up on the morning of January 20, 2005, defendant was there. Tyler got dressed. Her clothes were in the closet. There was no chair in the closet and no insulation on the chair or the floor. When Tyler came out after getting dressed, defendant was gone. Defendant returned and was breathing hard. He asked Tyler to go to the store for some cigars. She agreed and White went with her to buy breakfast items. Tyler wore defendant's black jacket to the store; there was nothing in the pockets.

Tyler said she had seen bullets lying around the house earlier that morning. When she got home from the store, she put the coat on the couch.

White and Tyler each received threatening calls from females after defendant's arrest and before trial. They were both receiving financial aid and protection at the time of trial.

Ron Flowers, a Fresno police detective, testified as an expert on African-American gangs. He testified that defendant is an active member of the Garrett Street gang. Flowers testified to predicate crimes by members of Garrett Street gang. He listed several criminal activities that the Garrett Street gang is involved with--including homicide, shootings, assaults, robberies, carjackings, arson, witness intimidation and auto theft--and then stated that the primary activity with â€