P. v. Tamplin

Filed 5/10/07 P. v. Tamplin 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Fresno County. Stephen Joseph Kane, Judge.

Robert Derham, 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, Senior Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Dwight Tamplin, Jr., was convicted after jury trial of being a felon in possession of a handgun and a street gang enhancement was found true. (Pen. Code,  12021, subd. (a)(1), 186.22, subd. (b)(1).)^[1] In a subsequent bifurcated proceeding, four prior strikes were found true. ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Appellant was sentenced to an aggregate term of 45 years to life imprisonment.

Appellant argues that the trial court abused its discretion by refusing to bifurcate trial of the street gang enhancement and contends that the evidence is insufficient to support this enhancement. Neither of these arguments is persuasive. Appellant also challenges the legality of his sentence. The People concede that the sentence imposed by the court is unauthorized. We have concluded that remand for exercise of judicial discretion and resentencing is necessary. Accordingly, we will affirm the judgment of conviction, vacate the sentence and remand for resentencing.^[2]

FACTS

On March 21, 2004, California Highway Patrol (CHP) Officer Michael Szatmari conducted a traffic stop of a Buick Regal in which four African-American males were traveling. Szatmari called for back-up assistance after he detected what he thought was the odor of burnt marijuana and observed that all of the occupants of the Buick were wearing the color blue and at least one occupant bore gang-related tattoos.

The driver and the front passenger, Anthony Robinson and Anthony Taylor, exited the car and were placed in the back of separate patrol cars. Appellant was seated in the right side of the back seat, behind the front passenger seat. Brandon Lambert was seated next to appellant, behind the driver. Before appellant and Lambert could be removed from the Buick, another police officer called Szatmaris attention to the Buick and told him that theres a lot of movement in the back seat. Szatmari observed both men leaning forward with some kind of arm movements towards the floorboard. Less than two seconds later, they straightened up.

After appellant and Lambert were removed from the Buick, it was searched. A loaded .38-caliber handgun was found under the drivers seat and a loaded .357 revolver was found under the front passenger seat. The guns had to be removed from the back seat because they did not fit between the floorboards and the bars that are located across the front of the bottom of the driver and passenger bucket seats. The weapon under the front passenger seat could definitely be reached by the passenger seated in the back [of the Buick].^[3]

After appellant was transported to the local CHP office and advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), Szatmari told appellant that he wanted to know about the guns underneath the seat. Appellant replied, I aint no snitch, so I cant say, but if some people dont man up soon, well settle this gangster style, because thats how we do things.

Appellant stipulated that in 1991 the [appellant] admitted to Fresno Police that he was a [VP] member and that any [VP] members would have access to guns. Also, it was stipulated that VP members have engaged in a pattern of criminal gang activity.

Jennifer Federico gave expert gang testimony. VP has about 60 validated members and their primary activities include crimes such as homicide, assault with a deadly weapon, robbery and sale of narcotics. The Buick was not stopped by Szatmari in VP territory. However, it is not unusual for VP members to commit crimes outside their turf. She opined that all four men in the Buick were VP members. She concluded that appellant was a VP member because he admitted membership in 1991, had gang-related tattoos, was arrested in company with three validated VP members and was identified as a VP member by a reliable source. Also, appellants statement to Szatmari after his arrest is a self-admission of current VP membership.

Federico testified that guns are very important to the VP. It helps them with their intimidation factor, making people respect them. Bigger the gun, the better the gang. It helps them commit their crimes, you know, their assaults with a deadly weapon, the drive-by shootings, their armed robberies, as far as homicide. It helps them do those crimes. After being presented with a hypothetical scenario similar to the facts of this case, Federico opined that possession of the firearms would benefit or promote the gang. She explained her reasoning as follows:

My opinion is that [possession of weapons would] benefit the gang or promote the gang because the guns are -- again are used in helping them commit their criminal activity, their pattern, their sales of narcotics, they protect it. They protect themselves against rival gang members. If they are going to do a robbery, they use that for the robbery. If they are going to do a drive-by shooting, they use weapons such as guns, firearms.

Taylors former girlfriend, Loretha Session, was called as a defense witness. She testified that on March 21, 2004, she opened the back passenger door of a bluish green, four-door car and placed a gun under the passenger seat. Taylor had given her the gun for safekeeping and she no longer wanted to store it for him because they severed their relationship that day.

DISCUSSION

I. Refusal to bifurcate trial of the gang enhancement was not an abuse of discretion.

Section 186.22, subdivision (b)(1), provides for increased punishment for any person who is convicted of a felony that is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Gardeley (1996) 14 Cal.4th 605, 617.)

Before trial, defendant moved to bifurcate trial of the section 186.22 street gang enhancement allegation from trial of the gun possession charge on the basis of Evidence Code section 352 and the defendants federal constitutional fair trial right. Defense counsel argued that by its very nature, the [gang] enhancement is more prejudicial than probative for the underlying count. The prosecutor opposed bifurcation because the reason for the possession of the weapon in this case is because these are gang members that use weapons. The weapons are the tools of their trade, and the reason for them having that gun would be part of the intent of the motive, the design, scheme of being a gang member, in this gang.

The court denied the bifurcation motion. It reasoned, as follows:

Considering [People v. Hernandez (2004) 33 Cal.4th 1040 (Hernandez)], I have -- and the arguments of counsel, Im weighing the probative value versus the prejudice, and I think there is probative value, and I think there is prejudice. The, the important point here I think is that the evidence of gang activity, alleged membership, so forth, is relevant on count one potentially under the Peoples theory. And because it is relevant on count one, it has probative value that would make it admissible unless the defendant proves that clearly there is a substantial danger of overriding prejudice. I dont think the defense have carried that burden under [People v. Bean (1988) 46 Cal.3d 919 (Bean) and Hernandez, supra, 33 Cal.4th 1040].

After a brief interruption, the court explained that that the defense had not satisfied their obligation under Hernandez and Bean of establishing that the undue prejudice outweighs the probative value. I do think if the gang enhancement evidence had no relevance at all to count one, I would rule differently.

Appellant challenges the courts ruling as an abuse of judicial discretion. He argues that the connection between gang membership and possession of the specific firearm at issue is too indirect to be probative. In his view, the evidence that [he] had a motive to possess the specific firearm at issue is nothing more than a generalization. It is simply propensity evidence going under the label of motive. He also contends that the prejudicial effect of the gang evidence outweighed its minimal probative value because this evidence suggested that appellant was predisposed to commit violent acts and it led to an assumption of guilt based merely upon gang association. We are not persuaded.

Hernandez, supra, 33 Cal.4th at pages 1048 to 1051, upheld denial of a motion to bifurcate trial of a street gang enhancement from trial of the underlying robbery charge.^[4] Therein, our Supreme Court explained that whilebifurcation of a gang enhancement is authorized, [n]othing in section 186.22 suggests the street gang enhancement should receive special treatment of the kind given prior convictions. (Id. at p. 1049.) Evidence of gang membership is often admissible to prove identity, motive or other issues pertinent to guilt of the charged offense. (Ibid.) To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. (Id. at pp. 1049-1050.) Furthermore, even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself, a court may still deny bifurcation. The trial courts discretion to deny bifurcation of a charged gang enhancement is broader than its discretion to admit gang evidence when a gang enhancement is not charged. (Id. at p. 1050.) Because additional factors favor joinder, the party seeking severance bears the burden of persuading the court that these countervailing considerations are outweighed by a substantial danger of undue prejudice. (Id. at p. 1050.)

Hernandez states that [e]vidence of the defendants gang affiliation can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Italics added.] (Id. at p. 1049.) In this case, evidence of appellants membership in the VP and expert testimony that firearms are important to the VP tended to establish that appellant had a motive to possess the gun found under the front passenger seat. Evidence demonstrating that appellant had a motive to possess this gun was in turn relevant to prove that he possessed it. Proof of appellants motive is not substantially equivalent to proof of his criminal propensity. Gang-related evidence was relevant to show why VP members such as appellant armed themselves; it was not admitted to prove that VP members such as appellant had a propensity toward criminality.

Furthermore, appellant did not establish that the additional factors favoring joinder, such as avoidance of increased expenditure of funds and judicial resources, are outweighed by a substantial danger of undue prejudice. To the extent gang evidence would have been admissible as proof of appellants motive for the firearm possession, any inference of prejudice would be dispelled, and bifurcation would not be necessary. (Hernandez, supra, 33 Cal.4th at p. 1050.) Moreover, as in Hernandez, even if some of the gang evidence would not have been admitted at a trial limited to the substantive offense, the countervailing considerations that apply when the enhancement is charged permitted a unitary trial. (Id. at p. 1051.) Because the parties stipulated to the existence of predicate offenses, the jury did not hear potentially inflammatory testimony concerning unrelated offenses committed by other VP members. In this instance, the gang-related evidence was not so prejudicial that it threatened to sway the jury to convict despite appellants actual guilt.

Accordingly, we conclude that the court acted within its discretion in denying bifurcation and that the challenged ruling did not result in an infringement of appellants constitutional due process and fair trial rights. (Hernandez, supra, 33 Cal.4th at p. 1051.)

II. The gang enhancement is supported by substantial evidence.

Appellant contends that the record lacks substantial evidence supporting the street gang enhancement. He argues that [t]he only basis for the gang enhancement was the experts opinion that appellant was affiliated with the [VP], and that the gang commits crimes with firearms. There was no connection, however, between appellants possession of a firearm on the night of March 21, 2004, and any particular crime. Appellant asserts that the present case is indistinguishable from the factual situation before this court in In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.). We are not convinced. As will be explained, Frank S. is distinguishable. The record contains foundational evidence supporting the gang experts opinions and she did not stray beyond the bounds of permissible expert testimony. The jury reasonably could infer from the entirety of the record that appellant possessed the firearm with the specific intent to promote, further or assist in criminal conduct by gang members.

The applicable standard of appellate review is undisputed. When assessing the sufficiency of the evidence, a reviewing court considers the entire record in the light most favorable to the judgment below to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People. v. Hawkins (1995) 10 Cal.4th 920, 955.) The reviewing court presumes in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, including reasonable inferences based on the evidence. (People v. Tran (1996) 47 Cal.App.4th 764, 793.) We do not reweigh evidence or determine if other inferences more favorable to the defendant could have been drawn from it. (People v. Stanley (1995) 10 Cal.4th 764, 793.)

In Frank S., supra, 141 Cal.App.4th 1192, the minor was stopped by a Visalia police officer after he failed to stop at a red traffic light while riding a bicycle. The minor was discovered to be in possession of a knife, a bindle of methamphetamine and a red bandana. The minor told the officer that he had been attacked two days ago and needed the knife for protection against the Southerners because they believed that he supported northern street gangs. (Id. at p. 1195.) The minor also said that he has several friends in the northern gangs. At a contested jurisdictional hearing, a gang expert opined that the minor was a Norteno gang member. She also opined that the minor possessed the knife to protect himself. She also stated a gang member would use the knife for protection from rival gang members and to assault rival gangs. When asked how the minors possession of the knife benefited the Nortenos, she responded it helps provide them protection should they be assaulted. (Id. at pp. 1195-1196.) The juvenile court found true allegations that the minor possessed a concealed dirk or dagger and a street gang enhancement.

We reversed the gang enhancement and published the case to emphasize that crimes may not be found to be gang-related based solely upon a perpetrators criminal history and gang affiliations. (Frank S., supra, 141 Cal.App.4th at p. 1195.) We concluded that the gang expert was improperly allowed to offer an opinion concerning the minors specific intent in possessing the knife and found that the record lacked substantial evidence supporting the specific intent element. We explained:

In the present case, the expert simply informed the judge of her belief of the minors intent with possession of the knife, an issue reserved to the trier of fact. [U]nlike in other cases, the prosecution presented no evidence other than the experts opinion regarding gangs in general and the experts improper opinion on the ultimate issue to establish that possession of the weapon was committed for the benefit of, at the direction of, or in association with any criminal street gang .... ( 186.22, subd. (b)(1).) The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minors statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minors specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended. (Frank S., supra, 141 Cal.App.4th at p. 1199.)

This case is distinguishable from Frank S. in two important respects. First,counsel and the court were aware of the limits on expert testimony to prove a gang enhancement and Federico, the gang expert, did not offer an impermissible opinion concerning an issue reserved for the trier of fact. During an in limine hearing, the prosecutor acknowledged that the expert witness cannot specifically testify as to the specific intent required by this defendant and whether or not they have satisfied that. That is evidence that the jury must make a determination of independent of the expert witness testimony or taking into account the expert witness testimony. The court stated that the [gang] expert could not say what the underlying knowledge and mental state of the defendant was at the time the crime was committed. Federico did not proffer an opinion encompassing the ultimate facts at issue. She did not give an opinion whether appellant possessed a firearm. She did not offer an opinion about appellants specific intent in possessing the firearm. She did not directly opine whether appellants possession of the firearm benefited the VP. After being presented with a hypothetical scenario similar to the facts of this case, she opined that in such a situation she believed the weapon possession would benefit the gang. This is permissible. An expert is not precluded from offering an opinion that is premised on a hypothetical about the way certain conduct could benefit a gang. Such an opinion was not tantamount to an opinion of guilt or that the enhancement allegation was true, for there were other elements to the allegation that had to be proved. (People v. Valdez (1997) 58 Cal.App.4th 494, 508-509.)

Second, there is substantial evidence in the record before us from which a trier of fact reasonably could infer that appellant possessed the firearm with the requisite specific intent. Appellant was not stopped alone. He was part of a quartet of VP members traveling together. Even though the arrest did not occur within VP territory, Federico testified it is not unusual for VP members to commit crimes outside their turf. Frank S. stated that evidence showing that the defendant was with other gang members at the time of his arrest is relevant. (Frank S., supra, 141 Cal.App.4th at p. 1199.) Also, appellant stipulated that he told Fresno police officers in 1991 that anyone in the VP would have access to firearms. In addition, after appellant was arrested, he said that if some people dont man up soon the matter would be settled gangster style. He did not give any statement indicating that the firearm was present in the Buick for a nongang-related purpose. The Peoples failure to connect appellants firearm possession to a specific completed or contemplated crime is not determinative. Section 186.22 does not require the People to specify the exact gang-related criminal conduct that the defendant intends to further by commission of the charged felony offense. The section only requires proof that the underlying felony was committed with the specific intent to promote, further or assist in any criminal conduct by gang members. ( 186.22, subd. (b)(1).)

In sum, the evidence is adequate to provide a factual basis supporting Federicos expert testimony. Federico did not impermissibly offer an opinion concerning an ultimate issue that properly is reserved for determination by the trier of fact. When all reasonable inferences are drawn in favor of the judgment, there is substantial evidence from which a reasonable trier of fact could conclude beyond a reasonable doubt that appellant possessed the firearm with the requisite specific intent. Therefore, we conclude that the true finding on the gang enhancement does not infringe appellants rights guaranteed by state law or the due process clause of the Fourteenth Amendment to the United States Constitution.

III. Appellants sentence is unauthorized.

Appellant was sentenced to a term of 45 years to life imprisonment based upon the courts determination that the interplay between section 186.22, subdivision (b)(5), and section 667, subdivision (e)(2)(A)(i), required it to triple the base parole eligibility term of 15 years contained in section 186.22, subdivision (b)(5).

Appellant argues that this sentence is unauthorized and that the proper sentence is 25 years to life. Respondent concedes that the term imposed by the court is unauthorized but argues that the sentence must be vacated and the matter remanded for resentencing because the proper sentence is 25 years to life plus an additional term of two, three or four years, at the courts discretion.^[5] Respondent is correct.

In People v. Montes (2003) 31 Cal.4th 350, our Supreme Court concluded that section 186.22, subdivision (b)(5), applies only where the underlying felony itself provides for a life sentence, ruling out any enhancement not included in the definition of the underlying felony. (Id. at p. 352.) Although Montes involved an enhancement statute (  12022.53) and not an alternative sentencing scheme such as the Three Strikes Law, by parity of reasoning we agree with the parties that section 186.22, subdivision (b)(5), is not applicable in this case because violation of section 12021, subdivision (a)(1), is not itself punishable by a term of life imprisonment.^[6]

Yet, this does not end the matter. In addition to a sentence under the Three Strikes Law of 25 years to life, appellant faces an additional term of imprisonment pursuant to section 186.22, subdivision (b)(1). This subdivision states that when a gang enhancement is found true and the underlying felony is neither serious nor violent, the person shall be punished by an additional term of two, three or four years at the courts discretion. Violation of section 12021, subdivision (a)(1), is neither a serious nor violent felony as defined in sections 1192.7 and 667.5. Therefore, appellants 25 years to life sentence must be enhanced by the additional term provided for in section 186.22, subdivision (b)(1)(A).^[7]

DISPOSITION

The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded for resentencing.

_________________________

Levy, J.

WE CONCUR:

_______________________________

Harris, Acting P.J.

_______________________________

Gomes, J.

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^[1] Unless otherwise specified, all statutory references are to the Penal Code.

^[2] This determination renders moot appellants challenge to his sentence as cruel and unusual punishment and his contention that denial of his Romero motion (People v. Superior Court (Romero) (1997) 14 Cal.4th 968) constitutes an abuse of discretion. On remand, appellant may argue that any new proposed sentence constitutes cruel and unusual punishment. (People v. Moenius (1998) 60 Cal.App.4th 820, 823.) The trial court ruled on the Romero motion under the mistaken impression that denial of the motion would result in a sentence of 45 years to life. The actual statutorily mandated sentence is material to the trial courts decision. (People v. Garcia (1999) 20 Cal.4th 490, 500.) Appellant may present his Romero motion to the court on remand for reconsideration. If the trial court once again denies the Romero motion, defendant can appeal from the new judgment and can raise any tenable argument that the denial was an abuse of discretion. (See People v. Murphy (2001) 88 Cal.App.4th 392, 394-397.)

^[3] Lambert admitted guilt through [a] no contest plea for possession of the .38 caliber firearm that was found underneath the drivers seat. Robinson and Taylor died before the preliminary hearing was conducted.

^[4] We note that Hernandez is factually distinguishable from this matter because there is no evidence in this instance that either of the firearms found in the Buick recently had been used in a crime or proof that anyone in the Buick was planning to commit a crime.

^[5] Appellant did not respond to this argument in his reply brief.

^[6] A related issue currently is under review in People v. Jones, S148463, and People v. Brookfield, S147980.

^[7] While we offer no specific direction to the trial court concerning the proper exercise of its sentencing discretion, we note that selection of the additional term provided for by section 186.22, subdivision (b)(1)(A) must be made in accordance with Blakely/Cunningham. (Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California(2007) __ U.S. __ [127 S.Ct. 856.])