P. v. Mitchell

Filed 5/10/07 P. v. Mitchell CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer, Judge.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer , Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Tyrone Augusta Mitchell of attempted murder (Pen. Code, 187, 664;^[1]count 1), assault with a semiautomatic weapon ( 245, subd. (b); count 2), being a felon in possession of a firearm ( 12021, subd. (a)(1); count 3), being a violent felon in possession of a firearm ( 12021.1, subd. (a); count 4), carrying a loaded firearm while actively participating in a criminal street gang( 12031, subd. (a)(2)(C); count 5) and possession of stolen property ( 496, subd. (a); count 6). The jury also found true various enhancement allegations, including that in committing the count 1 offense appellant discharged a firearm ( 12022.53, subd. (c)) and, in so doing, proximately caused great bodily injury ( 12022.53, subd. (d)). In a separate proceeding, appellant admitted allegations that he had suffered a felony conviction in 1997 that qualified as both a strike^[2]and a serious felony conviction ( 667, subd. (a)), and that he served a prison term for that conviction within the meaning of section 667.5, subdivision (b). The jury acquitted appellant of possession of cocaine for purposes of sale (Health & Saf. Code, 11351.5, subd. (a)(1)), charged in count 7.

The court imposed the following terms, to run consecutively: on count 1, life imprisonment with possibility of parole on the substantive offense plus 25 years to life for the section 12022.53, subdivision (d) enhancement; five years on the prior serious felony enhancement; one year on the prior prison term enhancement; and on count 7, even though appellant had been acquitted on that count, six years. The court stayed execution of sentence on the remaining counts and enhancements pursuant to section 654.

On appeal, appellant contends: (1) the evidence was insufficient to support appellants conviction of carrying a loaded firearm while actively participating in a criminal street gang, as charged in count 5; (2) the court erroneously imposed sentence on count 7; and (3) appellants conviction of the count 3 offense cannot stand because that offense is a necessarily lesser included offense of the count 4 offense. We will reverse appellants convictions on counts 3 and 5, vacate the sentence imposed on count 7 and in all other respects, affirm.

FACTS

The prosecution presented evidence of the following. At approximately 3 a.m. on May 20, 2005, appellant and Mike Richardson were in the parking lot of the apartment complex where Richardson lived, arguing, when Richardson accused appellant of stealing his car stereo. At that point appellant said, Oh[,] [i]ts like that ; retrieved a handgun from the front seat of a vehicle parked in the lot; said, Lets get into some gangster shit ; pointed the gun at Richardsons head; and fired one shot. Richardson suffered a gunshot wound. He was taken by medical personnel to a hospital where he underwent surgery.

Appellant, testifying in his defense, denied shooting Richardson.

A police detective testified appellant had the word Swan, the name of a Blood gang set, tattooed on his arm and that in 2002 appellant admitted he was a part of the Bloods[.] Richardson testified he associate[d] with a gang, viz., the Westside Crips[,] over a two-year period. A prosecution gang expert opined that both appellant and Richardson were criminal street gang members.

DISCUSSION

Sufficiency of the Evidence Count 5

As indicated above, appellant challenges the sufficiency of the evidence supporting his conviction of carrying a loaded firearm while actively participating in a criminal street gang.

Section 12031, subdivision (a)(1) provides: A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or any public place or on any public street in a prohibited area of unincorporated territory. Generally, the offense is a misdemeanor, but it becomes a felony when, inter alia, as specified in subdivision (a)(2)(C) of section 12031 (section 12031(a)(2)(C)): 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. (Italics added.)

However, as the court pointed out in People v. Robles (2000) 23 Cal.4th 1106, contrary to what section 12031(a)(2)(C) says, [section 186.22, subdivision (a) (section 186.22(a))] does not at all define the phrase active participant in a criminal street gang. Instead, section 186.22(a) defines a substantive gang offense, setting forth the elements of that offense. (People v. Robles, supra, 23 Cal.4th at p. 1115.) Thus, the court

held in Robles, 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, supra, 23 Cal.4th at p. 1115.) Those elements include actively participat[ing] in any criminal street gang with knowledge that

its members engage in or have engaged in a pattern of criminal gang activity . . . .

( 186.22, subd. (a), italics added.) And subdivision (e) of section 186.22 provides that gang members engage in a pattern of criminal gang activity when two or more specified criminal offenses (predicate offenses) are committed within a certain time frame on separate occasions, or by two or more persons. Thus, to establish a violation of section 12031(a)(2)(C), the prosecution must prove a person carried a loaded firearm in public, knowing that gang members have committed two predicate offenses.

Appellant contends the evidence was insufficient to establish the knowledge element of the offense. We agree.

In an attempt to establish the requisite two predicate offenses, the prosecution presented evidence of the following: (1) Philip Trimble, a member of the Blood gang, shot at a victim who was riding a bicycle and was later convicted of discharging a firearm from a vehicle, and (2) another Blood gang member, Tony Green, when apprehended, had 12 baggies of marijuana on his person, and was later convicted of possession of marijuana for purposes of sale. However, as appellant contends and the People do not dispute, the record contains no evidence from which it can reasonably be inferred that appellant had any knowledge of these offenses.

The People argue that knowledge of a pattern of criminal activity by gang members is not an element of section 186.22(a) and therefore not an element of section 12031(a)(2)(C). There is no merit to this contention.

The People base their interpretation of 186.22(a) on People v. Gamez (1991) 235 Cal.App.3d 957 (Gamez), disapproved on other grounds in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 14. However, Gamez dealt with neither section 12031(a)(2)(C)) nor section 186.22(a). Rather, the court in Gamez construed subdivision (b) of section 186.22 (section 186.22(b)), which is an enhancement, and provides for additional punishment for any person convicted of a felony or attempted felony which is committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . . In holding that section 186.22(b) [did not] require knowledge of the specific, charged predicate offenses (Gamez, supra, 235 Cal.App.3d at p. 975), the Gamez court acknowledged that subdivision (a) refers to and requires knowledge of a pattern of criminal gang activity (id. at p. 974), and cited this fact as evidence that the failure to refer to knowledge in subdivision (b) was not a negligent omission by the legislature and that knowledge is not required to be proven [to establish the section 186.22(b) enhancement] (ibid., fn. omitted). Thus, Gamez does not support the Peoples argument.

In addressing a challenge to the sufficiency of the evidence supporting a conviction, the appellate court must determine whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) By definition, substantial evidence requires evidence and not mere speculation. In any given case, one may speculate about any number of scenarios that may have occurred . . . . A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. (People v. Cluff (2001) 87 Cal.App.4th 991, 1002, quoting People v. Morris (1988) 46 Cal.3d 1, 21.)

Here, as indicated above, there was no substantial evidence supporting the knowledge element of section 186.22(a). Therefore, appellants conviction of section

section 12031(a)(2)(C) cannot stand.^[3]

Imposition of Sentence on Count 7

As indicated above, the court imposed sentence on count 7 even though the jury acquitted appellant on that count. As appellant contends and the People concede, the sentence on count 7 must be vacated.

Conviction of Lesser Included Offense

Appellant argues as follows: being a felon in possession of a firearm in violation of section 12021, subdivision (a)(1), the offense of which he stands convicted in count 3, is a lesser offense necessarily included in being a violent felon in possession of a firearm in violation of section 12021.1, subdivision (a), the count 4 offense; both the count 3 and count 4 offenses arose out of the same act; and therefore appellants conviction on the count 3 offense must be reversed. The People concede these points, and we agree. (People v. Sanchez (2001) 24 Cal.4th 983, 987 [[a] defendant . . . cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act].) Accordingly, we will reverse appellants conviction on count 3.

DISPOSITION

Appellants convictions of being a felon in possession of a firearm ( 12021, subd. (a)(1); count 3) and carrying a loaded firearm while actively participating in a criminal street gang( 12031, subd. (a)(2)(C); count 5) are reversed. The sentence imposed on count 7 is vacated. The superior court is directed to (1) prepare an amended abstract of judgment indicating the foregoing, and (2) forward a certified copy of the amended abstract to the Department of Corrections. In all other respects, the judgment is affirmed.

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^*Before Levy, Acting P.J., Cornell, J., and Dawson, J.

^[1] Except as otherwise indicated, all statutory references are to the Penal Code.

^[2] We use the term strike as a synonym for prior felony conviction within the meaning of the three strikes law ( 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.

^[3] Appellant challenges the sufficiency of the evidence on count 5 on several other bases. Because we reverse for the reasons discussed above, we need not address these contentions.