P. v. Castro
Filed 9/4/13 P. v. Castro CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
LUIS ALBERTO CASTRO,
Defendant
and Appellant.
E056083
(Super.Ct.Nos.
SWF10000617 &
SWF1100016)
OPINION
APPEAL
from the Superior Court
of
County. Dennis A.
McConaghy, Judge. Affirmed in part,
reversed in part with directions.
Kevin
D. Sheehy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl
T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
A jury
found defendant and appellant, Luis Alberto Castro, guilty of (1) two counts of
transporting methamphetamine (Health
& Saf. Code, § 11379, subd. (a); Counts 1 & 4); (2) two counts of
(Health & Saf. Code, § 11378; Counts 2 & 5); (3) two counts of being an
active participant in a criminal street gang (Pen. Code, § 186.22, subd. (a);
Counts 3 & 6);
title="">[1] and (4) one count of possessing not more than
28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b); Count
7).
In
regard to the four convictions for selling and possessing methamphetamine, the
jury found true the enhancement allegations that defendant committed the crimes
to benefit a criminal street gang. (§ 186.22, subd. (b).) The trial court found true the allegations
that defendant suffered (1) a prior strike conviction (§§ 667, subds.
(c)&(e)(1), 1170.12, subd. (c)(1)); (2) a prior serious felony conviction
(§ 667, subd. (a)); and (3) three prior convictions for which he
served prison terms (§ 667.5, subd. (b)).
The trial court sentenced defendant to prison for a term of 22 years.
Defendant
raises five issues on appeal. First,
defendant asserts his two convictions for being an active participant in a
criminal street gang (§ 186.22, subd. (a); Counts 3 & 6) are not
supported by substantial evidence. The
People concede defendant’s first contention is correct. Second, defendant contends the gang
enhancement findings (§ 186.22, subd. (b)) are not supported by substantial
evidence. Third, defendant asserts the
trial court erroneously permitted the prosecution’s expert to opine about
defendant’s gang-related conduct and state of mind. Fourth, defendant asserts his marijuana
conviction should be dismissed. Fifth,
defendant contends there should not be victim restitution in this case. The People concede defendant’s fourth and
fifth contentions. We affirm in part and
reverse in part with directions.
A. APRIL 2010
On
April 8, 2010, at approximately
5:18 p.m., Hemet Police Corporal
Mouat stopped the car defendant was driving because its license plates were
expired. Defendant was on active parole,
so Mouat searched defendant and the vehicle.
Mouat found (1) seven plastic sandwich bags in the center console, (2) a
functioning digital gram scale in the center console, (3) three cellular
telephones on the passenger seat, (4) $41 in defendant’s left front
pocket, (5) $20 in defendant’s right front pocket, and (6) two packages of
methamphetamine in the vehicle’s air vents.
The first bindle of methamphetamine weighed 20.3 grams and the second
weighed three grams.
Methamphetamine
is typically sold in the amount of 0.1 or 0.2 gram. A usable quantity of methamphetamine is 0.1
gram. The methamphetamine in defendant’s
car amounted to 233 individual doses.
Mouat did not find any paraphernalia in the car for ingesting
methamphetamine; however, defendant did appear to be under the influence of a
stimulant. Defendant was suffering body
tremors, profuse sweating, and rapid eye flutter. Mouat took photographs of defendant. Defendant’s head was shaved and the word “Hemetâ€
appeared across his forehead.
B. DECEMBER 2010
On
December 31, 2010, Hemet
Police Officer McNish stopped a vehicle in which defendant was a passenger
because the car was missing its front bumper.
McNish discovered there was a felony warrant for defendant. McNish handcuffed defendant and searched him. McNish found a plastic bag in defendant’s
front pants pocket that contained a substance that appeared to be
marijuana.
McNish
placed defendant in the back of the patrol car.
McNish had cleared the car of any trash or debris prior to her
shift. McNish noticed defendant twisting
from side to side in the back of the car.
It appeared to McNish that defendant “was manipulating something in his
waistband.†McNish saw a plastic bindle
between defendant’s feet. The bindle
contained methamphetamine. On the way to
the police station, defendant continued twisting from side to side. Upon arriving at the police station, McNish
found four more bindles underneath the backseat. When McNish searched defendant inside the
police station, another bindle fell from defendant’s pants leg. All the bindles contained methamphetamine.
McNish
also found $73 in defendant’s possession.
Defendant said he was unemployed and was unable to explain how he
obtained the money. Five of the bindles
weighed 0.3 gram. The sixth bindle
weighed 2.1 grams. The methamphetamine
amounted to 36 individual doses.
C. GANG AFFILIATION
On
October 11, 2003, Hemet Police Officer Nishida interviewed defendant and
documented the information on a field interview card. Defendant said his moniker or gang name was
“Fat Boy.†Defendant’s tattoos
included: (1) “Castro†on his back, and
(2) “Raza†on his stomach, which referred to the gang known as La Raza
Controla.
Riverside
County Senior Correctional Deputy Lemons works at the jail in downtown
Riverside. On December 7, 2007, Lemons
conducted defendant’s classification interview, in order to determine where
defendant could be housed. Defendant
told Lemons he served 13 years in prison and 11 of those years were served in a
special housing unit. Defendant said he
was a member of Hemet 13 or Hemet Trece and used the moniker “Fat Boy.†Hemet Trece has an “off-shoot†gang known as
South Side Criminals. South Side
Criminals has an off-shoot gang known as La Raza Controla (LRC). In other words, LRC is under the umbrella of
South Side Criminals, and South Side Criminals is under the umbrella of Hemet
Trece.
On
December 11, 2007, Nishida conducted a probation search of the residence of
Emilio Garcia (Garcia), a gang member.
Garcia was a member of LRC. In
the residence, Nishida found two letters from defendant to Garcia. A photograph of defendant showed him using
his hands “to throw up an ‘H,’†which is a “common Hemet gang sign.†Mario Coralles, an associate of LRC, known as
“Pee Wee,†was in the photograph with defendant. On June 16, 2009, Nishida received a
telephone call from Department of Corrections Parole Agent Palacios. Palacios informed Nishida that defendant had
been arrested in Oxnard with a gang member.
Riverside
County District Attorney’s Office Senior Investigator Hankins reviewed a
photograph of defendant’s tattoos.
Hankins noted defendant had the word “Sureno,†which is the Spanish word
for southerner, tattooed below his neck.
The word is significant because it refers to a Hispanic prison
gang. The word “Hemet†on defendant’s
forehead reflected the “very common†gang custom of tattooing the name of a
person’s hometown on the person’s body.
Defendant had “Raza†tattooed above his ears, with the number 13 between
the “A,†which relates to the Sureno prison gang. Defendant also had “IE†tattooed on him, which
referred to the Inland Empire or insane empire.
On
defendant’s back, the words “South Side†were tattooed, indicating the Sureno
prison gang. “La Raza†was tattooed on
defendant’s lower back, referring to LRC.
Also on defendant’s back was the Mayan numeral referring to the number
13, which is associated with southern California Hispanic gangs. On defendant’s abdomen were the words “All
bitches rattle,†which is a phrase typically associated with LRC because
multiple LRC members have the same tattoo.
Defendant also had “IE†tattooed on his chest.
In
2009, defendant was “validated†by Department of Corrections personnel as an
associate of the Mexican Mafia.
Defendant was validated due to his tattoos, such as the Mayan numeral,
and a Ventura County jail report. The
jail report reflected defendant was arrested with a validated Mexican Mafia
member.
On
October 14, 2010, Department of Corrections Parole Agent Moreno searched
defendant’s residence in Hemet, while defendant was in jail. Moreno found a box in a closet that contained
a letter and card to defendant’s son.
The card was initialed “FB,†for Fat Boy, with the Mayan symbol for “13â€
appearing under the initials. A sheet of
lined paper was also in the box. The
paper reflected inmate names, Department of Corrections inmate identification
numbers, prison addresses, and notes about sending money or magazines. Two of the names caught Moreno’s attention
because the individuals were members of the Mexican Mafia.
People
who work for the Mexican Mafia outside of prison will send money to the Mexican
Mafia members in prison as a “sign of respect,†to “prove that they are working
out in the community,†or as a form of taxation that allows the person outside
of prison to work in a particular area.
Magazines are sometimes sent to incarcerated individuals who are locked
in a special housing unit and need reading material.
During
the search of the residence, Moreno also found an address book in defendant’s
bedroom. Inside the address book, Hankins
noticed phone numbers with gang monikers next to them and a list of “pay-owesâ€
for narcotic sales. Hankins concluded
defendant was an active member of LRC based upon (1) his “numerous law
enforcement gang-related contacts,†(2) his tattoos, (3) his association with
gang members, (4) handwritten notes communicating with LRC gang members, and
(5) his two jail classifications.
Hankins opined that defendant possessed the narcotics for sale in order
to benefit LRC and the Mexican Mafia.
Hankins believed the sales benefitted the gang because “taxation is a
part of the gang culture,†so the money would be “spread out within the gang,
as well as pushed up the gangs to the [Mexican Mafia] prison gang.â€
The
Mexican Mafia’s primary activities include murder, assaults, narcotics
trafficking, and “taxation.†Hankins
explained that LRC’s “primary activities are narcotics, weapon information,
sales, acts of violation, shootings, [and] car[ry]ing firearms.†LRC started in the southeast area of Hemet,
but is now located throughout the city.
LRC graffiti can be found in Hemet.
LRC identifies itself with acronyms such as (1) LCX, (2) LCLR, (3) LCR,
(4) SSLR for South Side La Raza, (5) HMT, (6) H Town, for Hemet town. LRC also identifies with hand signs, such as
(1) the hands forming an “L†and an “R†for La Raza, and (2) and “I†and an “Eâ€
for Inland Empire or insane empire. LRC
members also identify with the Cowboys football team logo because (1) the “Câ€
for the Cowboys is used to refer to “criminal,†as in South Side Criminals, and
(2) the color blue “is very consistent with southern Hispanic gangs.â€
On
April 8, 2010, and December 31, 2010, LRC had approximately 50 members. Joe Alvarez (Alvarez) is a member of LRC and
uses the moniker “Sad Boy.†On October
11, 1999, Alvarez was in a car with other gang members when they drove by a
victim and shot at him. Alvarez pled
guilty to assault with a deadly weapon.
(§ 245, subd. (a)(2).) Rafael
Florez (Florez) is a member of LRC and uses the moniker “Joker.†On December 8, 2000, Florez stole a car from
a woman. Florez pled guilty to
carjacking. (§ 215.)
A. ACTIVE GANG PARTICIPATION
Defendant
contends his convictions for active participation in a criminal street gang (§
186.22, subd. (a)) must be reversed because substantial evidence does not
support a finding that he committed the drug offenses in concert with other
gang members. The People concede
defendant’s assertion is correct. We
agree.
In
People v. Rodriguez (2012) 55 Cal.4th
1125 (Rodriguez), our Supreme Court
held section 186.22, subdivision (a) was designed “to punish gang members who
acted in concert with other gang members in committing a felony regardless of
whether such felony was gang-related. [Citation.]†(Id.
at p. 1138.) Substantial evidence is
evidence “that is reasonable, credible, and of solid value—from which a
reasonable jury could find the accused guilty beyond a reasonable doubt.†(People
v. Hovarter (2008) 44 Cal.4th 983, 996, italics omitted.)
In
Count 3, defendant was charged with actively participating in a criminal street
gang (§ 186.22, subd. (a)) on April 8, 2010—the day he was found with
methamphetamine in the car’s air vents.
The charge reflected the active participation was connected to the April
drug offenses. In Count 6, defendant was
charged with actively participating in a criminal street gang (§ 186.22, subd.
(a)) on December 31, 2010—the day he was found with methamphetamine in the back
of the patrol car. The charge reflected
the active participation was related to the charged drug offenses.
The
evidence reflects that, in April 2010, defendant was found alone. Defendant could not have been acting in
concert with other gang members because there is no evidence reflecting he was
in the presence of other gang members or otherwise committing the offense with
the active assistance of other gang members.
Thus, we conclude defendant’s conviction for Count 3 must be reversed.
In
regard to Count 6, the evidence reflects defendant was in a car with two other
people at the time they were stopped by police.
However, there is nothing indicating the other people in the car were
gang members. Additionally, there is no
evidence indicating defendant was somehow actively communicating with other
gang members in an attempt to accomplish the drug-related crimes. Thus, we conclude defendant’s conviction for
Count 6 must be reversed.
When
sentencing defendant, the trial court stayed defendant’s sentences for Counts 3
and 6 pursuant to section 654.
Accordingly, the calculation of defendant’s prison term will not need to
be modified. However, we will direct the
trial court to amend the abstract of judgment to reflect there is no longer a
sentence for Counts 3 and 6.
B. GANG ENHANCEMENT
Defendant
contends the gang enhancement findings (§ 186.22, subd. (b)) are not supported
by substantial evidence. We disagree.
In
conducting our review, “we ‘must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.] Substantial evidence includes circumstantial
evidence and the reasonable inferences flowing therefrom. [Citation.]â€
(People v. Ugalino (2009) 174
Cal.App.4th 1060, 1064.)
In
2010, section 186.22, subdivision (b), provided: “[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, upon conviction of that felony
. . . be punished as follows . . . .â€
Defendant
does not dispute the element concerning a felony having been committed. Thus, we address the next element: whether the felonies were “committed for the
benefit of, at the direction of, or in association with any criminal street
gang.†(§ 186.22, subd. (b).) The felonies at issue are defendant’s convictions
for possessing and transporting methamphetamine. In both instances, defendant was found with
cash in his possession. In December
2010, defendant said he was unemployed and was unable to explain how he
obtained the money found by the police.
Police found a narcotics pay-owe list in an address book in defendant’s
house. From this combined evidence, it
can be inferred defendant obtained money from committing the drug-related
felonies because there was no other explanation for defendant having the money,
and it appears from the cash and pay-owe list that defendant was collecting
money.
Defendant
had various tattoos indicative of an LRC member. Defendant also associated with people
connected to LRC and the Mexican Mafia.
Additionally, the Department of Corrections validated defendant as an
associate of the Mexican Mafia, and defendant admitted being a member of Hemet
13 or Hemet Trece and using the moniker “Fat Boy.†From this evidence, it can be concluded that
defendant is a gang member.
Inside
defendant’s bedroom, there was a list of inmates, their mailing addresses, and
notes about sending money or magazines.
Two of the people on the list were members of the Mexican Mafia. A note next to a Mexican Mafia member’s name
reflected money and a subscription should be sent. From this evidence it can be concluded that
defendant was sending money to an incarcerated member of the Mexican Mafia.
Moreno
gave the following explanation about gang members sending money to
inmates: “[I]f he is going to send
money, that’s common for guys that are working on behalf of those individuals
or wanting to work on behalf of them to show a sign of respect, or to prove
that they are working out in the community, or in the prison setting getting
the proceeds from the criminal enterprises . . . whether selling narcotics,
wherever, their taxation, and sending it up to the individual.†This testimony supports a finding that money
from defendant’s drug-related crimes would have been sent to a member or
members of the Mexican Mafia. Thus,
defendant’s acts of transporting and possessing the methamphetamine for sale
benefitted a gang.
One
of the Mexican Mafia’s primary activities is narcotics sales. One of LRC’s primary activities is narcotics
sales. From this evidence, it can be
inferred that money given to a member of the Mexican Mafia or LRC would be used
to further the gangs’ drug sales since that is a primary activity. Accordingly, it can be reasonably inferred
from the evidence that defendant is a gang member who committed drug-related
felonies for the purpose of providing money to gang members, which the gang
members would then use to commit further drug-related crimes. Thus, we conclude substantial evidence
supports the finding that defendant committed the crimes for the benefit of, at
the direction of, or in association with a criminal street gang.
We
now turn to the next element of the offense:
“the specific intent to promote, further, or assist in any criminal
conduct by gang members[.]†(§ 186.22,
subd. (b).) As set forth
finding that defendant is a gang member.
From this it can be inferred defendant understands LRC’s and the Mexican
Mafia’s primary activities are narcotics sales because he is involved in the
gangs.
Given
that defendant did not appear to have an explanation for the money in his
possession, it can be inferred he obtained his money from drug-related
crimes. Defendant appeared to have
knowledge that money from his drug-related crimes was being sent to at least
one member of the Mexican Mafia because defendant had a note, in what appeared
to be his own handwriting, reflecting money should be sent to a member of the
Mexican Mafia. As set forth
defendant would know a member of the Mexican Mafia or LRC would likely use the
money to further the gangs’ criminal drug activities. This combination of evidence supports a
finding that defendant committed the drug crimes at issue in this case with the
specific intent to promote, further, or assist in criminal conduct by gang
members. Accordingly, we conclude
enhancement findings.
Defendant
cites this court’s opinion in People v.
Ochoa (2009) 179 Cal.App.4th 650 (Fourth Dist., Div. Two) to support his
assertion that the enhancement findings are not supported by substantial
evidence. Defendant asserts there is
only speculation that he committed the crimes for the benefit of a criminal
street gang and with the intent to assist in any criminal conduct by gang
members. In Ochoa, this court wrote, “A gang expert[’]s testimony alone is
insufficient to find an offense gang related.
[Citation.] ‘[T]he record must
provide some evidentiary support, other than merely the defendant’s record of
prior offenses and past gang activities or personal affiliations, for a finding
that the crime was committed for the benefit of, at the direction of, or in
association with a criminal street gang.’
[Citation.]†(
Defendant’s
reliance on Ochoa is not
persuasive. The enhancement findings
rest on more than expert testimony, defendant’s past offenses, and defendant’s
past gang activities. The evidence
supporting the enhancement findings includes testimony about two other gang
members’ criminal conduct and the taxation system the gangs use to further
their criminal activities. It is from this additional evidence that a
trier of fact can understand how defendant’s drug crimes benefitted the gangs
and helped to further the gang members’ crimes.
Defendant
asserts there is not substantial evidence supporting the enhancement findings
because there is insufficient evidence defendant “committed a felony with, or
aided and abetted the commission of a felony by, or otherwise acted ‘in
concert’ with, one or more other gang members.â€
In Rodriguez,
Supreme Court concluded the felony of active gang participation (§ 186.22,
subd. (a)) requires evidence that the defendant “acted in concert with other
gang members [when] committing a felony.â€
However, the Supreme Court concluded the gang enhancement (§ 186.22,
subd. (b)) and the felony of gang participation (§ 186.22, subd. (a)) “strike
at different things.†(
Our
Supreme Court reasoned the gang enhancement concerned felonies that were gang
related, and supported that reasoning by reference to the statutory language
concerning a defendant’s intent to benefit a gang, while also noting there is
not an element of “gang-relatedness†in the gang felony subdivision (§ 186.22,
subd. (a)), thus requiring two gang members to act together for purposes of the
felony. (Rodriguez, supra, 55
Cal.4th at p. 1137.) In other words, our
Supreme Court has separated the felony from the enhancement. While the felony requires two gang members
acting in concert, the enhancement requires only that the crime be gang
related. Thus, we are not persuaded by
defendant’s assertion because the enhancement does not require two or more gang
members to be acting in concert for the enhancement allegation to be found
true.
C. EXPERT TESTIMONY
1. PROCEDURAL
HISTORY
During
the prosecutor’s examination of Hankins, the following exchange took place:
“[Prosecutor:] Now, you had a chance to hear Officer McNish
and Officer Mouat’s testimony this week?
“[Hankins:] Yes, I did.
“[Prosecutor:] And do you have an opinion as to whether or
not the possession of narcotics for sale that they testified to earlier was
committed for the benefit of La Raza Controla?
“[Hankins:] I believe it was.
“[Defense
Counsel:] Your Honor, I object. Move to strike the response, based on opinion
without foundation. And goes to the
ultimate fact. Objectionable. I object on those bases.
“The
Court: Overruled.
“[Prosecutor:] Do you have an opinion as to whether those
crimes were committed for the benefit of La Raza?
“[Hankins:] Yes.
“[Defense
Counsel:] Same objection, your Honor.
“The
Court: Overrule[d].
“[Prosecutor:] What is that opinion?
“[Hankins:] That those acts of selling narcotics
benefited La Raza street gang as well as [the Mexican Mafia].â€
2. ANALYSIS
Defendant
asserts the trial court erred under state law by permitting the prosecution’s
expert to give his opinion in response to questions that were not
hypothetical. Defendant asserts that
because the questions were not hypothetical, the expert was permitted to give
an “opinion [that] went directly to [defendant’s] conduct and states of mind on
April 8 and December 31 . . . and directly to the jury issue of his guilt or
innocence as to the . . . gang enhancement allegations.†Thus, we consider whether the trial court
erred by permitting the expert to respond to non-hypothetical questions. We conclude the trial court did not err.
In
Vang, our Supreme Court held that it
is appropriate for an expert to respond to hypothetical questions, and these
questions “must be rooted in the evidence of the case being tried . . . .†(Vang,
supra, 52 Cal.4th at p. 1046.) The court recognized, however, “‘there is a
difference between testifying about specific persons and about hypothetical
persons.’†(Id. at p. 1047.) The general
rule remains, “‘A witness may not express an opinion on a defendant’s
guilt. [Citations.] The reason for this rule is not because guilt
is the ultimate issue of fact for the jury, as opinion testimony often goes to
the ultimate issue. [Citations.] “Rather, opinions on guilt or innocence are
inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is
as competent as the witness to weigh the evidence and draw a conclusion on the
issue of guilt.â€â€™ [Citations.]†(Id.
at p. 1048.)
Nevertheless,
in Vang, the court wrote, “It appears
that in some circumstances, expert testimony regarding the specific defendants
might be proper. [Citation.] The question is not before us. Because the expert here did not testify
directly about defendants, but only responded to hypothetical questions, we
will assume for present purposes the expert could not properly have testified
about defendants themselves.†(
supra, 52 Cal.4th at p. 1048, fn. 4.)
“Thus,
as referenced in Vang,
upheld the admission of expert opinion testimony in a complicated gang
enhancement case, about whether certain conduct by the defendant in connection
with numerous gangs was done for the benefit of his gang.†(People
v. Spence (2012) 212 Cal.App.4th 478, 508-509.)
“[A]
trial court’s ruling on the admissibility of evidence is reviewed for abuse of
discretion. [Citation.] ‘Under this standard, a trial court’s ruling
will not be disturbed, and reversal of the judgment is not required, unless the
trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]â€
(People v. Spence,
The
evidence in this case reflected defendant claimed an affiliation with “Hemet 13
or Hemet Trece.†Hankins testified that
he believed defendant was an active member of La Raza Controla. The Department of Corrections “validatedâ€
defendant as an associate of the Mexican Mafia.
Defendant also appeared connected to the Surenos gang.
Given
that the evidence reflected gangs within gangs, and that defendant was
committing crimes outside of prison but sending money and goods to people in
prison, the trial court could reasonably conclude that the gang evidence was
quite complex and confusing. Sorting out
exactly how the gang taxation systems work, as well as the hierarchy of the
various gangs, could reasonably be seen as a difficult and intricate task. Therefore, we conclude the trial court did
not err by permitting Hankins to testify directly about defendant’s gang
conduct, because the trial court could reasonably conclude this was a complex
gang enhancement case given the number of gangs connected to defendant’s
crimes.
Defendant
asserts his federal constitutional rights to due process and a jury trial were
violated by the trial court permitting the prosecutor’s expert to testify about
the ultimate issues in the enhancement allegations, because the opinion
testimony lowered the prosecutor’s burden of proof and usurped the jury’s role
as fact finder. The cases defendant
relies upon are primarily the same as those used in his is state law analysis,
such as Vang, supra. Defendant’s federal
contentions appear to be a mere constitutional “‘gloss’†on his state
evidentiary claim. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) Since we concluded there was no evidentiary
error, we find defendant’s federal assertions to be unpersuasive.
D. COUNT 7
Defendant
contends the trial court erred by sentencing defendant for Count 7, which was
the marijuana conviction, because the count had already been dismissed. The People concede defendant is correct. We agree.
After
the jury returned its verdicts, the prosecutor moved to “dismiss the
misdemeanor,†which was Count 7. The
trial court granted the prosecutor’s motion.
While the motion and ruling appear in the reporter’s transcript, they do
not appear in the clerk’s minute order.
When such conflicts occur, we presume the reporter’s transcript is
correct. (In re A.C. (2011) 197 Cal.App.4th 796, 799-800.) At sentencing, the trial court imposed credit
for time served on Count 7. Given that
Count 7 was dismissed, the trial court should not have imposed a sentence on
the count. (See generally
545, 552 [unauthorized sentence].) Thus,
we conclude the trial court erred. We
will direct the trial court to strike the sentence imposed on Count 7 and to
amend the October 19, 2011, minute order to reflect Count 7 was dismissed on
the prosecutor’s motion.
E. VICTIM RESTITUTION
Defendant
contends the minute order from defendant’s sentencing hearing incorrectly
reflects victim restitution was awarded.
The People support defendant’s contention. We agree.
The
minute order from defendant’s sentencing hearing reads, “Pay V-Victim
Restitution [Victim] in amount determined by Probation [1202.4 (f) PC]. Div of Adult Inst to collect obligation
(2085.5 PC)[.] Any disputes as to amount
to be resolved in court hearing.†The
reporter’s transcript does not reflect the imposition of a victim restitution
fine. The Probation Officer’s report
reflects there was not a victim in this case and lists the amount of victim
restitution as “not applicable.†As set
forth ante, we resolve conflicts
between the reporter’s and clerk’s transcripts in favor of the reporter’s
transcript. (In re A.C., supra, 197
Cal.App.4th at pp. 799-800.)
Accordingly, we conclude the minute order is incorrect in regard to the
victim restitution fine. We will direct
the trial court to strike the victim restitution fine from the April 13, 2012,
minute order. We will also direct the
trial court to amend the abstract of judgment to reflect victim restitution was
not ordered.
Defendant’s
convictions for Counts 3 and 6 are reversed.
The trial court is directed to amend (1) the abstract of judgment to
reflect (a) defendant no longer has sentences for Counts 3 and 6, and (b) a
victim restitution fine was not imposed; (2) the October 19, 2011, minute order
to reflect Count 7 was dismissed on the prosecutor’s motion; and (3) the April
13, 2012, minute order to reflect (a) victim restitution was not ordered, and
(b) Count 7 was dismissed on the prosecutor’s motion. The trial court is further directed to
forward a copy of the amended abstract of judgment to the
affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless indicated.
appears Ochoa was partially overruled
by People v. Vang (2011) 52 Cal.4th
1038, 1048 (Vang), in which our
Supreme Court held: “‘Expert opinion
that particular criminal conduct benefited a gang’ is not only permissible but
can be sufficient to support the Penal Code section 186.22, subdivision (b)(1),
gang enhancement. [Citation.]†Nevertheless, we will address defendant’s
argument concerning Ochoa.
