In re Rene C.

Filed 10/16/06 In re Rene C. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION ONE

The juvenile court found that defendant Rene C. had committed two offenses: (1) possession of cocaine salt for sale (Health & Saf. Code, § 11351, subd. (a)), with a penalty enhancement that he did so for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)); and (2) active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). The court sustained a wardship petition and ordered defendant into an out-of-home placement.

Defendant contends there is insufficient evidence that he possessed the cocaine salt for sale. He also contends that there is insufficient evidence that he possessed the narcotics for the benefit of, or that he actively participated in, a criminal street gang. We disagree and affirm because the evidence of possession for sale, gang benefit, and active gang participation is substantial.

I. FACTS

On July 21, 2005, officers of the San Francisco Police Department’s gang task force served a search warrant on the house where defendant lived with his parents and older brother Raul. The officers found defendant sitting on the bed in one of the two upstairs bedrooms, playing video games. There were pictures of defendant in the room and papers with his street name on them.

There was a scale in plain view on top of defendant’s dresser. Inside a black jacket hanging in the closet, the officers found a “musical cassette tape box” that contained nine dime-sized plastic baggies. Defendant stipulated that the baggies contained cocaine salt. The officers also found a pay-owe sheet in defendant’s bedroom.

Officer Mario Molina, who participated in the search, qualified as an expert in the packaging, sale, and distribution of cocaine salt. In his opinion, defendant possessed the cocaine salt for the purpose of sale. He based his opinion on the presence of the scale and the pay-owe sheet, the absence of any paraphernalia for personal use of the cocaine, and the way the narcotics were packaged--in dime bags each weighing a third of a gram.

The officers also seized numerous items showing membership or affiliation with the Nortenos street gang. Officer Molina also qualified as an expert on criminal street gangs. He testified that the Nortenos is a criminal street gang, mostly found in Northern California--”Norteno” is the Spanish word for “northerner.”[1] The Norteno gang color is red, and the Norteno gang symbol is either “XIV” or “14”, to signify the 14th letter of the alphabet--N.

The Nortenos’ rival is the Surenos, or southerners, whose gang color is blue and gang symbol is 13, for the 13th letter of the alphabet--M, which designates the Mexican Mafia. “[W]hen they do any type of writing, [Nortenos members] will cross out the S to show respect” to their rival Surenos.

The Nortenos gang is an umbrella group with many subgroups, especially in San Francisco, where there are over 500 Norteno members. One of the subgroups is 31st Street, which apparently operates in the Mission District. 31st Street uses the number 31 as a gang symbol, in addition to XIV and 14. It also uses “San Fran,” as short for San Francisco. 31st Street is also known as North Side Bario or North Side Raza.

Molina testified he had prior experience with defendant and had spoken with him, and knew that “he’s very much entangled in the gang life.” The prior experience included a prior offense which Molina investigated. During the investigation defendant admitted he was a Nortenos gang member.[2]

Officer Molina testified regarding the various items seized from defendant’s bedroom showing Nortenos affiliation.

1. The officers found a CD case on top of a table in the bedroom. The CD case is not the “musical cassette tape box” in which the cocaine salt was found in the jacket hanging in the closet.[3] The CD case bore the symbol “XXXI”, the Roman numeral for 31, which Molina testified was “signifying 31st,” and was “typical gang graffiti for 31st Street.” Apparently, “North Side” was also written on the case, “and the S is crossed out due to respect to Surenos.”

The CD case also bore the writing “31st S. R.,” “North Side Raza,” and a symbol that apparently combined the “31st” and the number 14, and was meant to designate the 31st Street gang and show “that they claim 14, which is a Norteno symbol.”

Molina testified, “[W]hat he’s do[ing] here, this is a gang thing, this is who I am, this is who I represent. And this is the writing.”

On the inside of the CD case were the symbols “XXXI”; “N.S.R.” for “North Side Raza”, with the S crossed out; and “X4” to “signi[fy] fourteen, to claim their alliance to Nortenos.”[4]

2. The pay-owe sheet bore the number 31 and the letters N.S.R. with the S crossed out. The sheet also bore the symbol XXXI, for 31st Street, and “San Fran.” And the sheet bore a symbol signifying 14, “signifying he belongs to Nortenos.” Finally, the sheet bore defendant’s street name, “Sapo,” with the S crossed out due to respect for Surenos.

3. The officers found a drawing of a shirtless male wearing sunglasses and a handkerchief covering his face. The male had the numbers “3” and “1” on his chest, the letters “N.S.R.” on his body near his waist, and the same lettering on his belt. Molina described the drawing as a depiction of “a Norteno soldier.”

4. A piece of paper found in the bedroom bore “XXXI,” to signify the 31st Street gang, “N.S.R.” with the S crossed out, and “Sapo” with a “1” and “4” to signify the Norteno gang. Another piece of paper also bore gang graffiti.

5. Defendant had four silver belt buckles, one in the shape of the letter N, one of the letter S, and two of the letter R. Molina testified that gang members used belt buckles with their initials or those of the gang, “to show alliance and loyalty and affiliation.” The three buckles in the shape of N, S, and R signified North Side Raza. The second buckle in the shape of R could signify “Rene.”

6. Defendant had three knit caps. One, which is also described as a “beanie,” was red and bore the symbol “XNSR4.” Molina testified the NSR signified North Side Raza and the X at the beginning and 4 at the end signified 14. “This shows a higher commitment . . . . This is something you have custom made . . . . It shows a higher commitment to the gang.” The customized graffiti symbol shows “a person who’s very much into the gang to a point that he has taken the time and effort to have their gang letters and symbols engraved in the beanie hat.”

The second knit cap was black with “31 NSR” written on it in red. This cap shows “the same type of commitment.”

The third knit cap was black with “Frisco” written on it in red. Molina testified that “Frisco is a very common, short name for San Francisco. Nortenos use it everywhere on their clothing.” The color red “signifies Norteno affiliation.”

7. Defendant’s closet was full of red clothing, including red T-shirts and red jerseys. An officer seized a red T-shirt from the closet. The T-shirt bore the writing “Frisco 415,” designating San Francisco and the city’s area code. Molina testified this writing signified Norteno gang territory. He also testified that Frisco 415 is a line of gang clothing that is sold in the Mission District or on line: “these clothes [are] usually worn by Nortenos gang members in the Mission District.”

8. The officers seized a red bandana from the bedroom. The bandana bore the symbol XIV. “Red bandanas are used by gang members to claim alliance to Nortenos.”

9. The officers seized a red belt. Molina testified that red belts are worn by Nortenos gang members.

10. There was a spiral notebook under defendant’s bed. The notebook bore gang graffiti, including X4 to signify 14 and the phrase “Norte Kali.” “Kali” is an alternative spelling of “California.” On the last page of the notebook was defendant’s street name, Sapo, followed by “one, four, 31, N.S.R., Norte.” On the inside cover was “31st” with the 3 crossed out to respect Surenos, who use the number 13 or 3 to signify their gang.

11. Officers also seized two scale models of red cars, and, in the words of gang expert Molina, “what is also known as homies . . . figurines of Latin males . . . [in] different gang attire.” According to Molina, the figurines are manufactured by a Los Angeles company to depict gang lifestyle.

In addition to the seized items discussed above, defendant had “N.S.R.” and “XIV” tattooed on his body. The S in N.S.R. was “scratched out.” Officer Molina testified these were gang tattoos, showing a “commitment for life in the gang.” Gang members sport their tattoos “just to let know, the people who live in that community, or the businesses that live in that community, that that’s their gang area, that’s their turf and that’s who they are. It’s a way of intimidation also.”

Based on his training as a gang investigator, Officer Molina formed the opinion that defendant possessed the cocaine salt for sale to benefit the Nortenos and the 31st Street gang. He elaborated on that opinion as follows:

“Sales of narcotics is another tool that gang members use to facilitate the purchase of weapons, vehicles, paying money back to people that are incarcerated. And also the sales of narcotics brings notoriety to the gang itself. If 31st Street is selling drugs, within the gang community, within the culture, they come out as people selling narcotics, they’re known for that. So their status within the Norteno gang goes up.

“At the same time, the person who is doing the business, the person selling the narcotics, his status goes up. By the fact that he’s selling narcotics is bringing back the notoriety to the gang, not only before their own--their copartners in crime, other gang members, but also the rivals in the community itself.”

When asked to expand on the concept of notoriety, Molina responded:

“In the gang culture, notoriety to the gang is a step up within the gang culture by committing crimes or selling narcotics. Obviously the word of mouth in the gang culture, we call it the AT&T convention, because these guys know everybody. The word gets out. And that 31st Street is selling cocaine, for just an example, is selling cocaine, that brings the status up of Sapo because now he’s considered bolder, somebody up there, doing business, making money. And he represents the gang itself.

“As we can see, Sapo is written Sapo everywhere and 31st. The fact that Sapo is selling drugs brings notoriety to himself and brings status up of the gang under the Norteno umbrella, status of their suppliers. So people could refer to this person for dope, for narcotics. It brings back a sense of--it continues the criminal acts of the gang.

“It facilitates the criminal pattern of behavior by the gang by the sales of narcotics. And also controls the price of the narcotics. They control the price and they control the clientele. They decide who they sell to and who they buy from.”[5]

Defendant’s mother testified on his behalf. She testified that the jacket hanging in defendant’s closet, in which the police found the cocaine, belonged to her son Raul.[6] Defendant tried on the jacket in court, and the court observed the jacket “is long on him,” hanging down to “slightly above his knees.” Officer Molina had testified that defendant was 5” 4’ and weighed about 120 pounds, while Raul was 6” or 6” 1’ and weighed about 200 pounds.

Defendant called his brother Raul as a witness on his behalf, but Raul invoked his Fifth Amendment rights and answered no questions about the statement he made to police after he was arrested July 29, 2005, eight days after the search of defendant’s bedroom. San Francisco Police Inspector Scott Lau testified for defendant that he took a statement from Raul after the July 29 arrest, and Raul told Lau that the cocaine found in defendant’s bedroom belonged to him, not defendant. Raul also told Lau that he “hid” cocaine in defendant’s bedroom.

The juvenile court found that defendant had possessed the cocaine salt for sale, and found true the penalty enhancement that defendant possessed the narcotics for sale for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The court further found that defendant had committed the substantive offense of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). The court found that the evidence of defendant’s involvement with the Nortenos was “overwhelming.”

The court sustained a wardship petition, declared defendant a ward of the court, ordered an out-of-home placement, and imposed special probation conditions appropriate for gang members and associates. The court set defendant’s maximum term of confinement at nine years.[7]

II. DISCUSSION

Defendant contends that there is insufficient evidence that he possessed the cocaine salt for sale. He also contends that there is insufficient evidence that he possessed the narcotics for the benefit of, or that he actively participated in, a criminal street gang.

The standard of review of the sufficiency of the evidence to support a conviction is well known. (See People v. Mincey (1992) 2 Cal.4th 408, 432 (Mincey).) Our review is deferential. (People v. Killebrew (2002) 103 Cal.App.4th 644, 660 (Killebrew).) The sole function of the appellate court is to consider the evidence in the light most favorable to the judgment, presume in support of the judgment every fact that can be reasonably deduced from the evidence, and “determine . . . whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt.” (Mincey, supra, at p. 432; see People v. Jones (1990) 51 Cal.3d 294, 314.) The evidence must be “reasonable, credible, and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) If substantial evidence supports the verdict, we must accord the verdict “due deference.” (Killebrew, supra, at p. 660.)

This standard applies to juvenile delinquency proceedings. (In re Roderick P. (1972) 7 Cal.3d 801, 808-809.)

A. Sufficiency of the Evidence of Possession For Sale

Defendant contends the evidence is insufficient to show that he possessed the cocaine salt with the intent to sell it. We disagree.

To convict a defendant of a violation of Health and Safety Code section 11351, the People must show beyond a reasonable doubt that: “(1) the defendant exercised dominion and control over the controlled substance, (2) the defendant was aware that he or she was in possession of a controlled substance, (3) the defendant was aware of the nature of a controlled substance, (4) the controlled substance was in an amount sufficient to be used for sale or consumption as a controlled substance, and (5) the defendant possessed a controlled substance with the specific intent to sell it. [Citations.]” (People v. Parra (1999) 70 Cal.App.4th 222, 225-226.)

Possession may be constructive, i.e., “when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. [Citation.]” (People v. Newman (1971) 5 Cal.3d 48, 52 (Newman).)[8] The elements of possession may be established by circumstantial evidence and any reasonable inferences therefrom. (Ibid.; People v. White (1969) 71 Cal.2d 80, 83 (White).)

Defendant relies on defense evidence that the cocaine was found in Raul’s coat and Raul--in an out-of-court statement not subject to cross-examination--claimed the cocaine was his, not defendant’s. He claims there is insufficient evidence that he had constructive possession of the cocaine or that he knew it was a controlled substance. But the People’s evidence is sufficient to establish substantial evidence of defendant’s guilt.

The cocaine was found inside a black jacket hanging in the closet of defendant’s bedroom, while defendant was present. This can be sufficient to show constructive possession, without regard to the ownership of the jacket. (See White, supra, 71 Cal.2d at p. 83.) Defendant also had a scale and a pay-owe sheet in his bedroom and other indicia of his personal use and control of the room where the cocaine was found. The evidence is sufficient that defendant possessed the cocaine salt and knew it was a controlled substance. Indeed the evidence is sufficient to establish all the elements of the offense of possession for sale.[9]

B. Sufficiency of the Criminal Street Gang Evidence

The evidence is more than substantial that defendant is a Norteno member and is heavily involved with the gang. But mere gang membership is not a crime. (People v. Gardeley (1996) 14 Cal.4th 605, 623 (Gardeley); People v. Green (1991) 227 Cal.App.3d 692, 699-700 (Green).)[10] The question before us is whether defendant violated two specific provisions of the Penal Code, sections 186.22(b)(1) and 186.22(a).[11] These statutes are designed to criminalize certain acts performed with a specific mental state to benefit or actively participate in a criminal street gang. (Gardeley, supra, at pp. 615-617; Green, supra, at pp. 699-704.)

Section 186.22(b)(1) provides for a penalty enhancement for “any 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 . . . .“ (Italics added.)

Section 186.22(a) defines the substantive offense of active gang participation as follows: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang,” shall be punished by imprisonment in the county jail or state prison. (Italics added.)

It is settled that expert testimony is admissible, under appropriate circumstances, to establish violations of sections 186.22(b)(1) and 186.22(a). (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048; Gardeley, supra, 14 Cal.4th at pp. 617-620.) Officer Molina gave expert testimony that drug sales enhance a gang’s status and notoriety, as well as those of the seller within the gang; lead to additional drug sales; and generate gang income for the purchase of weapons and vehicles.

Officer Molina also testified that defendant possessed the cocaine salt for sale to benefit the Nortenos and the 31st Street gang. It is less than settled whether an expert may testify on the ultimate issue to be decided by the trier of fact, such as whether a specific individual had a specific intent. (Compare Killebrew, supra, 103 Cal.App.4th at pp. 651-659 with In re Frank S. (2006) 141 Cal.App.4th 1192, 1197-1199 (Frank S.); People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931 (Ferraez).)

But the courts holding such testimony admissible agree that such expert testimony alone is insufficient--there must be some behavior or statements by the defendant or other corroborative evidence independent of the expert testimony in order to show substantial evidence of the requisite intent to benefit a gang, or promote, further, and assist its criminal conduct. (Frank S., supra, 141 Cal.App.4th at pp. 1198-1199 [discussing several cases]; Ferraez, supra, 112 Cal.App.4th at pp. 930-931.)

There is such evidence in the present case. The pay-owe sheet, which is a record of defendant’s drug sales, was covered in gang graffiti. There were no less than five gang markings on the pay-owe sheet, including “31” and “XXXI”, as well as defendant’s street name, “Sapo.” As Molina noted, “As we can see, Sapo is written Sapo everywhere and 31st. The fact that Sapo is selling drugs brings notoriety to himself and brings status up of the gang under the Norteno umbrella, status of their suppliers.”

Under our deferential standard of review, and the principle that we must view the whole record in the light most favorable to the trier of fact’s determinations and presume every fact the trier of fact could reasonably deduce from the evidence, we must affirm. Substantial evidence was presented that defendant possessed the cocaine for sale to benefit the gang and with the intent to further the gang’s criminal conduct--which would include additional drug sales and potentially lead to the purchase (and ultimately use) of weapons. Likewise, there is substantial evidence that defendant, when possessing the drugs for sale under the circumstances found in his room, was actively participating in the Nortenos gang to willfully promote, further, and assist the gang’s felonious conduct.

III. DISPOSITION

The findings of the juvenile court are affirmed.

______________________

Marchiano, P.J.

We concur:

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Stein, J.

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Swager, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1]The Nortenos gang is usually found in California from Bakersfield north. But it also operates in Oregon, Washington, New York, and Canada.

[2] This prior incident was introduced as a predicate offense for the gang allegations in the present case. Defendant was charged with benefiting and actively participating in a gang on July 21, 2005, i.e., the date of the search of his bedroom and the seizure of the cocaine.

[3] In his respondent’s brief, the Attorney General asserts several times that the musical cassette box in which the cocaine was found bore gang graffiti. We can find no such testimony in the record. It appears to us the Attorney General has confused the CD case, which did bear graffiti and was found on a table, with the cassette box which was found in the jacket.

[4] “X4” is apparently a combination of the Roman numeral for ten (X) and the Arabic numeral for 4.

[5] On cross-examination, Molina testified that he had “noticed” 31st Street gang members selling drugs, but had not reviewed records to determine whether a gang member had yet to suffer a conviction for narcotics sales. In other words, at the time of his testimony he could not identify a 31st Street gang member who had suffered a drug sale conviction. Molina also made the general assertion that “Hispanic gangs are so entrenched in narcotic sales you would not believe it.”

[6] An officer did testify that there were two black jackets in the bedroom, and he wasn’t sure whether the second one was in the closet.

[7] The court stayed the finding on the active participation offense under Penal Code section 654, and specifically noted that the stayed offense was based on the same conduct as the possession of cocaine for sale: “[T]he whole . . . case against [defendant] was that the selling of the narcotics was a part of the gang activity and he was a gang member and that’s what he was doing here. I mean, it’s all one transaction.”

[8] Unrelated dicta in Newman, supra, 5 Cal.3d 48 was disapproved in People v. Daniels (1975) 14 Cal.3d 857, 862.

[9] This conclusion disposes of defendant’s subargument that the trial court abused its discretion by revoking his probation based on the cocaine possession.

[10] The Supreme Court criticized a portion of the Green opinion’s reasoning in People v. Castenada (2000) 23 Cal.4th 743, 752, but the court did not disapprove of Green, supra, 227 Cal.App.3d 692. (See People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1257-1261.)

[11] We henceforth refer to the two statutes with an abbreviated citation form.