Filed 10/26/06 P. v. Cruz CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William L. Evans, Judge. Affirmed in part and reversed in part.

Gerald Peters, under appointment of the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

Jesse Cruz was convicted of possessing a firearm while a felon and street terrorism. The jury also found true an enhancement allegation that he committed the firearm offense for the benefit of a criminal street gang. Cruz contends there is insufficient evidence his conduct was gang related, he was improperly convicted of both a greater and lesser included offense, and his sentence for street terrorism should be stayed under Penal Code section 654.[1] We agree with his sentencing claim but affirm the judgment in all other respects.

* * *

On the night of January 25, 2005, Santa Ana Park Ranger Tony Duran was on routine patrol when he drove to Memorial Park. The large park is comprised mostly of playing fields, and on this particular evening it was bustling with sports activity. But what caught Duran’s eye as he pulled into the park was the sight of Cruz and his girlfriend Autumn sitting atop some otherwise empty baseball bleachers. Seeing a case of beer and an open bottle near the two, Duran intended to cite them for having alcohol in the park.

However, as he walked up the bleachers and approached the couple, Duran noticed something even more troubling. Tucked into Cruz’s waistband was a large cylindrical object that was bulging underneath his t-shirt. Duran couldn’t tell what the object was, but he feared it was a weapon. Cruz denied this, but Duran seized the object and discovered it was a loaded, sawed-off .12-gauge shotgun.

Cruz was arrested and taken down from the bleachers. He needed help because he had a leg wound that he claimed was from a car accident. Duran later learned it was a gunshot wound. Duran did not receive any reports of trouble in the park that night, nor did he see Cruz or Autumn interact with anyone else prior to their arrest.

Gang expert David Rondou testified Cruz and Autumn belong to the Alley Boys gang, whose biggest rival is the Delhi gang. Rondou said these two outfits have been fighting over Memorial Park for a long time. Both gangs claim the park as their turf, and this has led to many problems over the years, including deadly shootings.

Rondou testified guns are a vital commodity for gangs, and by using them to commit crimes, gang members are able to spread fear and gain respect. Rondou also said guns are beneficial to gang members in that they can be used for protection in the case of attack. However, a gang member need not display his gun in order to benefit his gang. Rondou gave as an example a gang member who is “posted up,” meaning he is watching or guarding a particular area. Rondou said in this situation, it wouldn’t matter if the member made his weapon visible because rivals would assume he was armed. This armed surveillance would lead to greater respect for the gang and thereby enhance the gang’s status.

When asked if a gang member would benefit his gang merely by walking out of his house with a shotgun, Rondou said yes. However, on the very next question, Rondou acknowledged that there could be situations in which that were not the case.

The jury convicted Cruz of possessing a firearm while a felon and actively participating in a criminal street gang, also known as street terrorism. (§§ 12021, subd. (a)(1), 186.22, subd. (a).) It also found true an enhancement allegation that he committed the firearm offense to benefit his gang. (§ 186.22, subd. (b).) The court sentenced him to two years for the firearm offense, plus three years for the enhancement, and another eight months for the gang crime. It tacked on a year for a prior prison term (§ 667.5, subd. (b)), bringing Cruz’s commitment to six years and eight months.

I

Cruz argues there is insufficient evidence to support his street terrorism conviction and the gang enhancement. (§ 186.22, subds. (a), (b).) We disagree.

“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] The same standard applies to the review of circumstantial evidence. [Citation.] The court must consider the evidence and all logical inferences from that evidence in light of the legal definition of [the charges at issue]. [Citation.]” (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)

The charges at issue here involve section 186.22. Subdivision (a) of that section describes the offense of street terrorism, which entails “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“ and “willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang . . . .” (§ 186.22, subd. (a); see People v. Robles (2000) 23 Cal.4th 1106, 1111, 1115.) This provision “‘applies to the perpetrator of felonious gang-related criminal conduct . . . .’ [Citation.]” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)

Subdivision (b) of section 186.22 constitutes a sentence enhancement. It is triggered when the defendant 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 . . . .” (§ 186.22, subd. (b).)

Cruz contends there is insufficient proof he violated the terms of either subdivision (a) or (b). Arguing his possession of a firearm as a felon was complete once he obtained the shotgun, he asserts that offense was independent of any activity that occurred at the park. The underlying premise of this argument is that Cruz took possession of the shotgun at some place other than the park. But there is no evidence to support that assumption. All we know from the record is that Cruz had the gun at the time Duran contacted him in the bleachers.

In any event, Cruz fails to recognize that possession of a firearm while a felon is an ongoing offense when the defendant retains possession of the weapon over time. Cruz correctly notes the threshold for establishing guilt for that offense is the act of taking possession of the weapon by a felon. (People v. Spirlin (2000) 81 Cal.App.4th 119, 130.) But that act merely establishes the initial commission of the offense. The crime is continuous and thus constitutes an ongoing offense when the defendant’s possession extends beyond this preliminary, guilt-fixing stage. (See People v. Warren (1940) 16 Cal.2d 103, 112.)

Therefore, we reject Cruz’s attempt to divorce his initial possession of the shotgun from his actions in the park. Even if he did obtain the shotgun “at home, in a car, or [some] other location,” as he suggests, he was still violating section 12021 when Duran found him in the bleachers, and his continued possession of the weapon is relevant in assessing his intent at that time.

Nevertheless, Cruz argues there is insufficient evidence to demonstrate his intent at that time was to benefit his gang. He reminds us that Rondou gave conflicting opinions as to whether a gang member’s act in walking out of his house with a shotgun would necessarily benefit his gang. But that really has little bearing here because Cruz’s conduct went well beyond simple gun possession; he was sitting in disputed gang territory, with a fellow gang member, with a loaded, sawed-off shotgun at the ready. As Rondou’s testimony suggested, this is how gang members gain respect, i.e., by “posting-up” in a particular location for all the world to see.

Cruz challenges Rondou’s testimony about “posting-up” on the grounds it amounted to an improper opinion on his intent. (See People v. Killebrew (2002) 103 Cal.App.4th 644, 651-659 [expert may not opine as to the specific intent of a particular gang member].) However, the law is well established that an expert may educate the jury about gang culture and the general customs and practices of gang members (id. at pp. 656-657) and that is precisely what Rondou did. He explained the concept of “posting up” in the context of the facts presented without offering any opinion as to Cruz’s specific state of mind. Cruz complains Rondou’s “testimony was an invitation for the jury to infer [he] acted with the intent to promote or assist gang activity,” and he is absolutely correct. But there is nothing wrong with that. It is no different than explaining gang signs to the jury and then letting them evaluate the way a defendant manipulated his fingers. Because Rondou’s testimony did not take the issue of intent away from the jury, and because he merely provided general information about gangs from which the jury could reach its own conclusions on the issue, his testimony was properly admitted and can be used as a basis to support the jury’s verdict.

Still, Cruz insists there just was not enough proof his conduct in the park was gang related. He calls our attention to In re Frank S. (2006) 141 Cal.App.4th 1192, but in that case the crime in question was “found to be gang-related based solely upon [the minor’s] criminal history and gang affiliations.” (Id. at p. 1195.) “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 [he was charged with concealing] in a gang-related offense.” (Id. at p. 1199.) Under those circumstances, the court determined there was insufficient evidence to support the gang enhancement. (Id. at pp. 1199-1200.)

Here, in contrast, not only was there evidence of Cruz’s criminal history and gang affiliations, the evidence showed that Cruz was in disputed gang territory, was with a fellow gang member and that his provocative action was likely designed to draw the attention of rival gang members. Memorial Park has been the cause of many bitter gang battles over the years. And given that Cruz was armed and plainly visible in the park that night, a reasonable trier of fact could find he was acting for the benefit of his gang by staking out this territory. We therefore reject his challenge to the sufficiency of the evidence on the gang charges.

II

Cruz also claims he was improperly subjected to multiple convictions based on necessarily included offenses. Specifically, he alleges his firearm offense with the attendant gang enhancement was necessarily included in the crime of street terrorism. He argues this was so because the evidence showed his possession of the shotgun was both the felony underlying the enhancement and the felonious act by which he promoted his gang for purposes of the street terrorism offense.

However, in assessing whether an offense is necessarily included in another for purposes of punishment, we do not consider the facts alleged in the accusatory pleading or the evidence that was adduced at trial. (People v. Reed (2006) 38 Cal.4th 1224; People v. Ortega (1998) 19 Cal.4th 686, 698.) Instead, we look solely to the statutory elements of the offenses in question. (People v. Reed, supra, 38 Cal.4th at p. 1231.)

As explained above, a person is guilty of street terrorism if he actively participates in a gang knowing its members have engaged in a pattern of criminal gang activity, and he willfully promotes, furthers, or assists felonious conduct by members of that gang. (See § 186.22, subd. (a); People v. Robles, supra, 23 Cal.4th at pp. 1111, 1115.) Because it is possible to commit that offense without being a felon and without possessing a firearm, the crime of possessing a firearm while a felon is not a lesser included offense of street terrorism. (See People v. Reed, supra, 38 Cal.4th at p. 1227.) This is true regardless of the gang enhancement.

Thus, Cruz was properly convicted of both offenses, as well as the enhancement. The judgment does not violate the prohibition against multiple convictions based on necessarily included offenses. (Compare People v. Flores (2005) 129 Cal.App.4th 174, 184 [defendant could not be convicted of street terrorism because the elements of that crime are included in the elements of another crime he was convicted of, namely carrying a firearm while an active gang member within the meaning of section 12031, subdivision (a)(2)(C)].)

III

Lastly, Cruz claims section 654 precludes execution of sentence on the street terrorism count. The claim is well taken.

Section 654 provides, “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Under this provision “courts are generally precluded from imposing multiple punishment where a defendant engages in a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute. [Citations.] The focus of this rule is whether the defendant acted pursuant to a single intent and objective.” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)

A person’s actions are often the best indicator of his intent. And when, as here, the defendant is convicted of possessing a firearm as a felon, it is important to consider the circumstances of his possession to determine whether, in committing another offense, he harbored separate intents. (People v. Bradford (1976) 17 Cal.3d 8, 22.) “‘[W]here the evidence shows a possession distinctly antecedent and separate from the [other] offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with’” the other offense, punishment on both crimes is improper. (Ibid.)

The evidence in this case shows the latter. While it is tempting, as Cruz did in his first argument, to speculate that he possessed the weapon before arriving at the park, there is absolutely no proof of that. The facts simply show he had the shotgun in the bleachers of Memorial Park at the time Duran contacted him. That is why he was convicted of possessing a firearm as a felon and that is why he was convicted of street terrorism. There is no evidence his possession of the weapon was separate and distinct relative to those two offenses. Therefore, he cannot be punished for both of them. (See People v. Bradford, supra, 17 Cal.3d at p. 22 [where defendant obtained officer’s firearm during traffic stop and shot at officer, he could not be punished for both possessing the firearm as a felon and assault because his possession of the weapon was not antecedent and separate from its use].)

In addressing this issue, the Attorney General spends a lot time explaining the differences between the substantive offense of street terrorism and the gang enhancement and attempting to justify punishment for both in this case. But that is not what Cruz is objecting to. Rather, he challenges his sentence on the street terrorism count, and because there is no evidence his gun possession with regard to that offense was separate and distinct from his possession for the firearm offense, section 654 applies with full force and effect.

DISPOSITION

Cruz’s eight-month sentence for street terrorism is stayed pursuant to section 654. The clerk of the trial court is directed to prepare an amended abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.In all other respects, the judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.

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[1] All further statutory references are to the Penal Code.