P. v. Rodriguez

Filed 10/17/07 P. v. Rodriguez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Lance A. Ito, Judge. Affirmed.

David D. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters, and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

INTRODUCTION

A jury found defendant and appellant John D. Rodriguez guilty of one count of possession of methamphetamine for sale. The jury also found true a gang allegation under Penal Code section 186.22, subdivision (b)(1). Defendants sole contention on appeal is there was insufficient evidence to prove that he possessed the methamphetamine for the gangs benefit. We affirm the judgment.^[1]

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

A. The search of defendants residence.

On June 10, 2005, Officer Boris Zeissig was part of a team assigned to serve a search warrant at defendants residence in Montebello. Above the entry door to the residence was a surveillance camera pointing towards the driveway. Two other cameras were located on the driveway.

Officers gave knock-notice and then made a forced entry. Defendant was lying on a bed next to Theresa Pina. He reached towards a nearby nightstand, but Officer Zeissig ordered him to stop.

After defendant and Pina were removed, officers searched the residence. Inside an Altoids container on the nightstand was a plastic bindle containing 4.09 grams of methamphetamine. Two additional empty plastic wrappers were found. Found on a computer table were a paper bindle containing .006 grams of a substance too small to test, a digital scale, $10 (a five dollar bill and five ones), a scratched mirror with crystalline residue,^[2]a spoon,^[3]a vial containing 16 milliliters of liquid methamphetamine, ten white pills,^[4]and identification cards belonging to defendant and to Pina. On a shelf there was a book with a hidden compartment. Inside was a pay-owe sheeta piece of paper with five or six names and a dollar amount next to them showing amounts owed. The names on the sheet included Bouncer and Duck. Three hundred and eighty dollars was recovered from the shorts defendant was wearing at the time of his arrest.

A photograph from 2004 of defendant with Armando Bustamonte, a member of the Metropolitan 13 or Metro 13 gang, was propped up on a shelf. Other photographs lying on the shelf were of defendant making an M with his hand, a group of people with M13 and gang monikers written on it, defendant wearing a Michigan college shirt with a big M on it and displaying a hand sign, and of other individuals displaying hand signs. A piece of paper with gangster, priest, and M13 written on it was also found. Other than the 2004 photograph, the photos were either dated 2000 or older or were undated.

According to Officer Zeissig, 4.09 grams of methamphetamine is an amount that could be for the personal use of two people over several days. But the Peoples expert witness, Detective Christopher Cervantes, testified that the methamphetamine recovered from defendants home was possessed for sale. He based his opinion on the amount of methamphetamine, the manner in which it was packaged, the additional packaging, the scale, mirror and spoon, the amount of money found on defendant, and the pay-owe sheet. The street value of 4.09 grams is about $120-$200.

B. The prosecutions gang evidence.

Detective Cervantes also testified as the Peoples gang expert. Metro 13 is a gang located in Montebello, as well as other parts of Los Angeles County. Metro 13 has three cliques: The Metro Tiny Locos, the Dukes, and the Midgets. Metro 13s hand sign is a M. The gang engages in crimes ranging from loitering, trespassing, petty thefts, robberies, drug sales, car thefts, and murder. In general, most of the gang activity is done by younger members who are between 15 to 22 years old. Some older gang members become less active. The gang has about 55 documented gang members. For example, Armando Bustamante has admitted to Detective Cervantes that he is a member of the gang. Bustamante was convicted of assault with a deadly weapon in 2002.

Several Metro 13 gang members hang out or reside in the area in which defendant lives. Defendants moniker, priest, is tattooed on his chest and cheek; Metro 13 is on his eye; Metropolitan Gangster is tattooed on the back of his head; he has M on his right ear; Metro 13 is on his left hand; gangster of the groove is under his right ear; and 13 is on his left shoulder. Defendant has admitted to Detective Cervantes on several occasions that he is a Metro 13 gang member. One such admission occurred just a few months before his arrest. In May 2003, defendant entered a plea to the crime of being a felon in possession of a firearm. The detective has not seen defendant do any of the things a gang member would do to leave the gang.

In Detective Cervantess opinion, defendant is a Metro 13 gang member and he sold methamphetamine for the gangs benefit. In fact, it is always the case that drugs sold by a gang member benefit the gang. By selling narcotics, a gang member has a source of income for himself and for the gang. Money from narcotics sales is used to buy more narcotics and weapons, and it is placed on the books of inmates. Most Hispanic gangs in Los Angeles are in line with the Mexican Mafia, or EME, which is a prison gang that runs the drug trade in the streets. Taxes are paid to EME from drug sales. According to Detective Cervantes, So 100 percent of the sales of narcotics are directly related to gang activity in Los Angeles. If you choose to sell drugs, you are tied into the EME.

The detective also testified, Inevitably, if youre still in the gang and youre selling drugs and youre hanging out with other gang members, you have money, and that money is going to be shared with, well call them, your friends. If you are hanging out with other gang members who in most cases are your friends, those guys will either get high with your drugs, theyre going to use your money for much of what is illegal activity. And if you have if youre still hanging out selling drugs, that is the gangs gain, I should say.

C. Defense evidence.

Theresa Pina, who was with defendant when he was arrested, told the defense investigator that defendant stopped being a gang member in 1996. She, however, uses methamphetamine. She bought the methamphetamine found in defendants house for her personal use. She sometimes uses the scale to make sure she is not being cheated.

Michael Munoz, a retired police officer, testified as the defenses gang expert. Younger gang members tend to be more active, while older members who are around 29 to 30 years old tend to participate less. He interviewed defendant a few weeks before testifying. In Munozs opinion, defendant, more likely than not, was not a gang member. He based his opinion on, among other things, the crime report, the interview, and the fact defendant has a physical malady.^[5]

II. Procedural background.

Trial was by jury. On December 12, 2005, the jury found defendant guilty of possession of methamphetamine for sale (Health & Saf. Code, 11378). The jury also found true a gang allegation (Pen. Code,^[6] 186.22, subd. (b)(1)(A)). Defendant admitted a prior strike felony and prison sentence.

On August 18, 2006, the trial court sentenced defendant to 16 months on count 1, doubled, plus one year for a prior conviction under section 667.5, subdivision (b). The court imposed and stayed a three-year sentence under section 186.22, subdivision (b)(1)(A). (See fn. 1, infra.)

DISCUSSION

I. Sufficiency of the evidence of the gang allegation.

Under a sufficiency of the evidence standard of review, we review the entire record in the light most favorable to the judgment to decide  whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We draw all reasonable inferences in support of the judgment. [Citation.] (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.) We apply the same standard to convictions based largely on circumstantial evidence. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 (Ferraez).)

Section 186.22, subdivision (b)(1), provides, [A]ny person who is convicted of a felony 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 shall be subject to additional punishment as further defined in section 186.22, subdivision (b). (See also People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).) To establish the elements of an allegation under section 186.22, subdivision (b)(1), an expert witness may give an opinion that is related to a subject sufficiently beyond common experience and which is based on matter, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which the experts testimony relates, unless the expert is precluded by law from using such matter as a basis for the opinion. (Evid. Code,  801; Gardeley, supra, 14 Cal.4th 605.)

Expert testimony may be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. (Gardeley, supra, 14 Cal.4th at p. 618.) This material must be reliable, for the law does not accord to the experts opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the experts opinion is no better than the facts on which it is based. [Citation.] (Ibid.) If the threshold requirement of reliability is met, even matter that is ordinarily inadmissible can form the proper basis for an experts opinion testimony. (Ibid.)

Defendant argues that the experts opinion here was deficient, first, because the expert never explained the factual basis for his opinions, many of which were ambiguous, doubtful, and overly broad. He cites as an example Detective Cervantess testimony that money from drug sales is used to buy more drugs and weapons or it is put on the books of inmates. He cites as a further example of speculation the detectives testimony that all drug sales by Hispanic gang members benefit the Mexican Mafia, because it receives a tax from all such drug sales. Defendants second reason why the experts opinion was deficient is the absence of evidence to substantiate the experts opinion.

Defendant relies on Ferraez, supra, 112 Cal.App.4th 925. In Ferraez, the defendant, an admitted Walnut Street gang member, was arrested for selling rock cocaine. The defendant said he had permission from the Las Compadres gang to sell the drugs at the location at which he was arrested. A gang expert testified that the gang benefited from drug sales through the purchase of guns or more drugs or as bail for a fellow gang member. (Id. at p. 928.) He also testified that drug sales enhance the gangs reputation. (Ibid.)

The Court of Appeal said that although the experts testimony was circumstantial evidence, it was still evidence supporting defendants conviction. (Ferraez, supra, 112 Cal.App.4th at p. 930.) The gang experts testimony was necessary to explain to the jury how a gangs reputation can be enhanced through drug sales and how a gang may use the proceeds from such felonious conduct, and therefore the matters were properly admissible under Evidence Code section 801. (Ferraez, at pp. 930-931.) The court went on to note that [u]ndoubtably, the experts testimony alone would not have been sufficient to find the drug offense was gang related. (Id. at p. 931.) But because the experts testimony was coupled with other evidence from which the jury could reasonably infer the crime was gang related, notably defendants prior admissions of gang membership and his receipt of permission from Las Compadres to sell at the location, there was sufficient evidence to find that the drug offense was gang related.

The absence of such other evidence compelled reversal of a true finding under section 186.22, subdivision (b)(1), in In re Frank S. (2006) 141 Cal.App.4th 1192. In that case, the minor had a knife, a small bindle of methamphetamine, and a red bandana. The minor said he had been attacked two days before and needed the knife for protection against the Southerners because they believed he supported the northern street gangs, to which several of his friends belonged. (Id. at p. 1195.) The Peoples gang expert testified that she believed the minor was an active Norteno and that he had the knife to protect himself, which benefited the Nortenos. (Id. at pp. 1195-1196.)

The court said that the expert merely informed the trier of fact of her belief of the minors intent, an issue reserved for the trier of fact. (In re Frank S., supra, 141 Cal.App.4th at p. 1199.) There was no other evidence that the crime was committed for the gangs benefit. There was no evidence 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 . . . 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 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. (Ibid.)

We agree with the reasoning in Ferraez and In Frank S., but we disagree with defendants assertion that they compel a reversal of the true finding on the gang allegation here. Similar to the gang experts testimony in Ferraez, Detective Cervantes testified that the proceeds from drug sales is used to buy drugs and weapons, and it is put on inmates books. Detective Cervantes also testified that most Hispanic drug sales in California benefit the Mexican Mafia, which receives a tax from those sales. This evidence was circumstantial, and, by itself, might be insufficient to support the section 186.22, subdivision (b)(1), allegation.

But, as in Ferraez, Detective Cervantess testimony was coupled with other evidence from which the jury could reasonably infer the crime was gang related. Specifically, defendant was covered with tattoos attesting to his allegiance to Metro 13. Just a few months before his arrest, he admitted to being a gang member. Photographs, albeit some of which were undated, showed defendant with other gang members. Those photographs were not stored away; rather, one was propped on a shelf, while the others were on the shelf. Also significant was the discovery of a pay-owe sheet in the hidden compartment of a book. This evidence, coupled with Detective Cervantess testimony, and notwithstanding evidence to the contrary that Theresa Pina bought the methamphetamine for her personal use, is sufficient to support the jurys true finding under section 186.22, subdivision (b)(1).

DISPOSITION

The judgment is affirmed. The motion to augment the record is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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^[1] After this matter was submitted, defendants appellate counsel filed a motion to augment the record with a minute order nunc pro tunc, dated September 14, 2007, purporting to correct defendants sentence. The nunc pro tunc order strikes the allegation under Penal Code section 186.22, subdivision (b)(1).

Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. [Citations.] Where the trial court relinquishes custody of a defendant, it also loses jurisdiction over that defendant. [Citation.] If, however, the trial court retains in itself the actual or constructive custody of the defendant and the execution of his sentence has not begun, the court may vacate and modify the sentence. [Citations.] (People v. Karaman (1992) 4 Cal.4th 335, 344; see also People v. Flores (2003) 30 Cal.4th 1059, 1064 [the general rule is that [t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur [citation], thereby divesting the trial court of jurisdiction over anything affecting the judgment. [Citations.] ; Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089 [ The purpose of the rule depriving the trial court of jurisdiction in a case during a pending appeal is to protect the appellate courts jurisdiction by preserving the status quo until the appeal is decided. The rule prevents the trial court from rendering an appeal futile by altering the appealed judgment . . . by conducting other proceedings that may affect it. [Citation.]].)

In filing the motion, defendants counsel has not set forth any applicable exception to the general rule. We therefore deny the motion to augment the record.

^[2] Scratch marks on a mirror indicate that the drug has been cut.

^[3] A spoon, such as was found on the table, is a common device used to measure a drug onto a scale.

^[4] The pills did not contain a controlled substance.

^[5] It is not clear from the record what is defendants malady.

^[6] All further undesignated statutory references are to the Penal Code.