Opinion
E051088 Super.Ct.No. RIF137461
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. BRANDEN ROBERT GARCIA, Defendant and Appellant.
MarkYanis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Garrett Beaumont and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
OPINION
APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Affirmed.
MarkYanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Garrett Beaumont and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant Branden Robert Garcia was convicted of unlawful driving of a vehicle on June 13, 2007, with a finding that he had a previous felony conviction for vehicle theft (Pen. Code, §§ 10851, subd. (a), 666.5, subd. (a); count 1); receiving stolen property on June 13, 2007 (§ 496d, subd. (a); count 2); resisting arrest, a lesser included offense of attempting to deter an executive officer from performing a duty on June 13, 2007 (§ 148; count 3); active participation in a street gang with a true finding on the on-bail allegation (§§ 186.22, subd. (a), 12022.1; count 4); unlawful driving of a vehicle on May 18, 2007, with a finding that he had a previous felony conviction for vehicle theft and it was done for the benefit of a street gang (§§ 10851, subd. (a), 186.22, subd. (b), 666.5, subd. (a); count 6); receiving stolen property on May 18, 2007, with a finding that it was done for the benefit of a street gang (§§ 496, subd. (a), 186.22, subd. (b); count 8); being a felon in possession of ammunition on May 18, 2007, with a finding that it was done for the benefit of a street gang (§§ 12316, subd. (b)(1), 186.22, subd. (b); count 9); and active participation in a criminal street gang on May 18, 2007 (§ 186.22, subd. (a); count 10). The trial court sentenced defendant to prison for a term of nine years four months. On appeal, defendant challenges the sufficiency of the evidence supporting his convictions, the jury instruction on reasonable doubt pursuant to CALCRIM No. 220, and his sentence.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS
A. May 18, 2007, Charges
At approximately 2:10 a.m. on May 15, 2007, someone stole Maria Acevedo's 1996 Dodge Ram pickup truck. Although the doors were locked, the keys were "stuck" in the ignition. On the morning of May 18, someone stole Beverly Mainwaring's purse from the trunk of her car. Inside the purse were the keys to her Ford Explorer, her wallet, and other items. That same day, just before noon, Deputy Kevin Whitford of the Riverside County Sheriff's Department pulled over a suspicious vehicle described as a silver Dodge truck. Defendant was driving, and there were two other occupants. As the deputy approached the passenger side, the occupants appeared to cooperate by putting their hands in the air; however, the truck quickly moved backwards, ramming the deputy's patrol car.
Deputy Whitford ordered defendant to stop, but defendant made a three-point turn and drove away. Deputy Whitford relayed the information over the police radio. Deputy Robert Thomas heard the information on the radio and saw the silver truck heading towards him. The truck stopped, the doors opened, and all three occupants fled, running directly towards Deputy Thomas. Using his service weapon, Deputy Thomas ordered them to the ground. One of the occupants, Josue Meza, complied; however, defendant and the other occupant ran away.
A local resident provided information about defendant's whereabouts. At approximately 2:45 p.m., defendant was apprehended. Defendant's cell phone had a photograph of numerous weapons, including guns and bullets, and the words "Fuck RPD." Gang expert, Detective James Simons of the Riverside Police Department, testified that "RPD" stands for "Riverside PD." Items were scattered throughout the vehicle, which were not in Acevedo's truck when it was stolen, including a navigation (GPS) system, a purse, ammunition or shotgun shells, Mainwaring's keys, and some bags. When the officers turned on the GPS system, it indicated Mainwaring's address was a "recent location."
After being advised of and waiving his Miranda rights, defendant gave a statement. He initially said he was the back passenger, but after 45 minutes of questioning, he admitted he was the driver and that he thought the truck was stolen.
Miranda v. Arizona (1966) 384 U.S. 436.
The parties stipulated that after defendant's arrest on May 18, 2007, he was booked into the Riverside County jail, and on June 9, 2007, he "bailed" out.
B. June 13, 2007, Charges
Brenten Manuel owned a Chevy S10 that started without a key by turning the ignition. He would loan the truck to his cousin, Brandon Nace. On June 10, 2007, neither Nace nor anyone else had permission to use the truck. The truck was loaded with valuables Manuel was taking to storage, including his work clothes, work tools, driver's license, wallet, cell phone, a savings bond, coin collection, and his clothing. Manuel was inside his house getting ready for work when he heard his car start. He went outside and saw Nace pulling away. Nace had introduced defendant to Manuel, and defendant had been to Manuel's home a number of times.
Previously, Nace had taken the truck without permission, but he would call Manuel right away to let him know. When Nace did not return the truck the following day, Manuel called the police and reported it stolen.
On June 13, 2007, at approximately 1:00 a.m., Officer Jesse Schultz of the Riverside Police Department noticed a white Chevy S10 that matched the description of a truck on the stolen vehicles list. The officer followed the truck. Upon confirming it was stolen, he called for backup. Officer Miguel Rivera responded. The officers activated their lights and sirens. Defendant stopped at a stop sign and immediately opened the door and fled on foot. Officer Rivera recognized defendant from previous contacts. On two of those prior contacts, defendant had a small hand-held taser in his car, and on every occasion, which numbered at least 10, defendant had a pocket knife.
The officers chased defendant in their cars as defendant ran along a chain link fence. Officer Rivera attempted to cut defendant off; however, defendant ran the other way. The officer pursued defendant on foot, and defendant reached in his rear waistband or pocket area of his pants. Believing defendant was reaching for a weapon, Officer Rivera said, "'I'm gonna fuckin' kill you,'" because he wanted to scare defendant and slow him down. Defendant eventually stopped and faced Officer Rivera. Defendant stood with his left foot forward in a defensive position. Despite numerous commands, defendant did not go to the ground or obey the officers. Officer Rivera used momentum to take defendant to the ground, stomach down. Defendant tried to roll and reach back with his right arm to the officer's belt area. Fearful that defendant was going for his weapon, Officer Rivera struck defendant in the face. The officer then lifted defendant's head in an attempt to put him in a carotid restraint, but defendant grabbed Officer Rivera's arm and "bucked" him forward, causing the officer to hit his head on the pavement. Although Officer Rivera was able to get defendant in a carotid restraint, defendant continued to try to escape. Officer Schultz struck defendant twice in the lower leg with his flashlight in an attempt to "gain compliance." Officer Sobe Macias showed up and assisted. Defendant had a folding knife in his possession.
When Manuel's truck was returned, it no longer contained his personal property that was in the truck at the time it was stolen.
C. Gang Evidence
On March 20, 2007, Officer Daniel Mercadefe contacted defendant during a traffic stop. Defendant stated he was a member of "SRL," or "Sur Riva Locotes" gang, and that his moniker was "Bully." While being booked into jail on May 18, 2007, defendant "claimed South Siders," and repeated his moniker was "Bully." During other jail admissions, defendant denied any gang affiliation.
During trial, defendant was held in a cell behind the courtroom. Afterward, there was graffiti on the backside of the cell door, which said "Bully" and "SRL." The Sheriff's Deputy had not seen the graffiti on the door prior to defendant being held inside the cell. The jury was allowed to view the cell.
Gang expert Detective Simon testified about the Sur Riva Locotes gang, or SRL. SRL is known for its drug sales, thefts and burglaries. It is a clique under South Side Riverside, South Side Riva, or SSR. Detective Simon testified that gang members steal cars to commit other crimes, such as assaults on rival gang members, vehicle thefts, residential burglaries, and to transport illegal drugs.
Detective Simons testified that defendant was an active gang member on the dates of both of these crimes, and his moniker was "Bully." The detective's opinion was based on defendant's previous contacts and arrests with SRL gang members, defendant's own statements to police officers, and previous classification interviews where defendant admitted to gang membership.
To show a pattern of criminal gang activity, the court took judicial notice of various cases, and Detective Simon testified regarding the following gang members and crimes committed: Adam Ledesma was convicted of being a felon in possession of a firearm, with a gang enhancement, in December 2004; Juan Figuroa was convicted of being a felon in possession of a firearm, with a gang enhancement, in January 2006; Juan Lopez was convicted of grand theft in 2003; Manuel Lopez was convicted of assault with a deadly weapon, with a gang enhancement, in November 2001.
In response to a hypothetical mirroring the facts of this case, Detective Simons opined that both the car thefts were for the benefit of or in association with SRL. He also opined that possessing ammunition in a stolen car, such as the facts in this case, is for the benefit or at the direction or association with SRL because it is common for gang members to use firearms to commit crimes and they need ammunition for their weapons.
The court took judicial notice that on February 13, 2007, defendant pled guilty to section 10851, subdivision (a), a felony.
D. Defense
Kelleen Hoshaw, defendant's mother, testified that defendant lived with her in May and June 2007. At the time, defendant was not working and she did not give him money. Also at the time, defendant displayed signs and symptoms of being under the influence of methamphetamine all the time. According to the defense, defendant was stealing to support his drug habit, not to benefit the gang. Hoshaw admitted that she did not know what defendant did in the evenings, and that he normally did not stay at home at night.
II. SUFFICIENCY OF EVIDENCE
Defendant contends the evidence presented at trial was insufficient to establish that he was guilty of (1) unlawful driving of a vehicle on June 13, 2007; (2) receiving a stolen vehicle on June 13, 2007; (3) actively participating in a criminal street gang on June 13, 2007; (4) possessing ammunition on May 18, 2007; and (5) receiving stolen keys on May 18, 2007. We conclude that substantial evidence supports the challenged verdict.
A. Standard of Review
"In reviewing a challenge to the sufficiency of the evidence, 'we "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." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility. [Citation.]' [Citation.]" (People v. Alexander (2010) 49 Cal.4th 846, 917.)
B. Unlawful Driving of a Vehicle on June 13, 2007
Defendant contends the evidence was insufficient to support a conviction of unlawful driving of a vehicle on June 13, 2007, because "the prosecution failed to prove that [he] 'intended to deprive the owner of possession or ownership of the vehicle for any period of time.'" He argues that because Nace had previously taken Manuel's truck without prior express permission, and there is no evidence defendant was unaware that Nace did not have permission, the evidence lacks proof of intent.
To establish a violation of Vehicle Code section 10851, the prosecution must prove defendant drove or took a vehicle belonging to another person, without the owner's consent, and that the defendant had the specific intent to permanently or temporarily deprive the owner of title or possession. (Veh. Code, § 10851, subd. (a).) Knowledge that the vehicle was stolen is not an element of the offense. (People v. Green (1995) 34 Cal.App.4th 165, 180.)
"The specific intent to deprive the owner of possession of his vehicle '"may be inferred from all the facts and circumstances of the particular case."' [Citation.]" (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1577.) At the time the police officers located the truck that Manuel had reported stolen, defendant was driving it. "Possession of recently stolen property itself raises a strong inference that the possessor knew the property was stolen; only slight corroboration is required to allow for a finding of guilt. [Citation.] This principle, applicable to theft offenses, applies as well to the unlawful driving of a vehicle. [Citation.]" (Id. at p. 1574.) The prosecution also presented evidence that defendant knew Nace and Manuel, defendant had been to Manuel's home, defendant knew the truck belonged to Manuel, not Nace, and that defendant, upon being caught driving Manuel's truck, fled from police officers. Based on these facts, a rational trier of fact could have inferred that defendant knew the truck was stolen when he drove it. This inference, together with the evidence that Manuel did not give either Nace or defendant permission to drive the truck, could well have convinced a rational trier of fact that defendant entertained the requisite intent. On this record, substantial evidence supports the conviction. (People v Green, supra, 34 Cal.App.4th at pp. 181-182.)
C. Receiving a Stolen Vehicle on June 13, 2007
Defendant was also charged with receiving a stolen vehicle, Manuel's truck, on June 13, 2007. (§ 496d, subd. (a).) In relevant part, section 496d, subdivision (a), provides: "Every person who buys or receives any motor vehicle . . . that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained . . ." is guilty of receiving stolen property. The jury was instructed that this crime requires proof that (1) defendant received a stolen motor vehicle, (2) defendant concealed or withheld the motor vehicle from its owner, and (3) defendant knew the vehicle was stolen. (CALCRIM No. 1750.) Defendant contends there is insufficient evidence to support this conviction because "there was no evidence that Nace or [defendant] intended to keep the truck permanently." Specifically, he argues the truck was gone for merely three days and "there was no evidence that the major value of the truck had been depleted in that short span."
In response, the People argue an intent to permanently keep the truck was not required, merely that there must be an intent to deprive the owner of the property temporarily, "for an unreasonable time so as to deprive the person of a major portion of the value or enjoyment." (People v. Avery (2002) 27 Cal.4th 49, 58.) Here, the evidence shows the truck was taken from Manuel without his permission. The truck was loaded with valuables, including Manuel's work clothes, work tools, driver's license, wallet, cell phone, a savings bond, coin collection, and his clothing. Clearly, many of these items, including the truck, were necessities for him and their absence for three days constituted a deprivation of a major portion of the value or enjoyment. Also, as the People aptly note, the reason the truck was missing for only three days is that police officers were able to apprehend the truck on the third day; otherwise, there is no evidence when the truck might have been returned to Manuel. While defendant maintains there was no evidence of an intent to keep the truck permanently, implying he would have returned it, he offers no explanation as to why the truck no longer contained Manuel's property. The only logical answer is there was no intent to return the truck. Circumstantial evidence supports this answer. Accordingly, substantial evidence supports defendant's conviction for unlawful receipt of the stolen truck.
D. Active Participation in a Criminal Street Gang
Defendant challenges the sufficiency of the evidence supporting his conviction of actively participating in a criminal street gang on June 13, 2007. (§ 186.22, subd. (a).) Section 186.22, subdivision (a), defines the substantive offense as follows: "(a) 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 a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years." Based on the language in People v. Castenada (2000) 23 Cal.4th 743 (Castenada) that a person who violates section 186.22, subdivision (a), also "aided and abetted a separate felony offense committed by gang members" (Castenada, supra, at p. 752), defendant argues a violation of section 186.22, subdivision (a), necessarily requires that there be more than one participant, such that, because he was alone at time he was driving the truck, "there is no substantial evidence that he was aiding and abetting crime by other members of the gang he purportedly belonged to."
The People point out this issue is currently pending in the California Supreme Court in People v. Rodriquez (2010) 188 Cal.App.4th 722, review granted January 12, 2011, Case No. S187680. The California Appellate Courts Web site states the issue is as follows: "May an active participant in a criminal street gang be found guilty of violating Penal Code section 186.22, subdivision (a), when, acting entirely alone, he commits a felony, and there is no other evidence indicating the crime had anything to do with the gang?" ([as of October 24, 2011].)
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The Castenada court referred to the "promote/further/assist" element as aiding and abetting, stating: "[S]ection 186.22[, subdivision ](a),] limits liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gang's pattern of criminal gang activity. Thus, a person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members . . . ." (Castenada, supra, 23 Cal.4th at p. 749.) The issue in Castenada was not whether the defendant's offense was for the benefit of his criminal street gang, but whether he was an active participant in it. (Id. at pp. 745, 752-753.)
In People v. Ngoun (2001) 88 Cal.App.4th 432, 435-437, our colleagues in the Fifth District held that the promote/further/assist element may be satisfied by evidence that the defendant was the perpetrator of a felony. The Ngoun court explained: "Courts should give statutory words their plain or literal meaning unless that meaning is inconsistent with the legislative intent apparent in the statute. [Citations.] Under the language of subdivision (a), liability attaches to a gang member who 'willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' [Citation.] In common usage, 'promote' means to contribute to the progress or growth of; 'further' means to help the progress of; and 'assist' means to give aid or support. [Citation.] The literal meanings of these critical words square[] with the expressed purposes of the lawmakers. An active gang member who directly perpetrates a gang-related offense 'contributes' to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct. Faced with the words the legislators chose, we cannot rationally ascribe to them the intention to deter criminal gang activity by the palpably irrational means of excluding the more culpable and including the less culpable participant in such activity." (Id. at p. 436.)
In People v. Sanchez (2009) 179 Cal.App.4th 1297, 1305-1308 (Sanchez) [Fourth Dist., Div. Two], we found sufficient evidence to support the active gang participation charge by a defendant who committed a robbery with a nongang member. Although we recognized Sanchez was not arguing that the promote/further/assist element also requires evidence that he was aided and abetted by one or more fellow gang members, we indicated we would have rejected such argument on the authority of People v. Salcido (2007) 149 Cal.App.4th 356. (Sanchez, supra, at p. 1308.) In Salcido, the defendant committed felonies, as the direct perpetrator, in front of gang members; however, without the assistance of the same gang members. (People v. Salcido, supra, at pp. 359-362, 368.)
Until our Supreme Court says otherwise, we continue to apply our reasoning in Sanchez and conclude there is no requirement that the perpetrator commit the crime with another gang member.
Regarding defendant's claim there was insufficient evidence that he committed the unlawful driving of a vehicle, as explained ante, we disagree. Regarding his claim there is insufficient evidence that defendant willfully promoted, furthered or assisted in any felonious criminal conduct by gang members because he was not with any gang members at the time of the offense, we reject this contention. First, as the People note, the gravamen of the offense is active participation in a criminal street gang. (People v. Albillar (2010) 51 Cal.4th 47, 55.) Second, the gang graffiti, which defendant left in the holding cell behind the courtroom, more than supports the charged offense of active gang participation in relation to the unlawful driving of a vehicle.
For the above reasons, we conclude that substantial evidence supports defendant's conviction for active participation in a street gang.
E. Possessing Ammunition on May 18, 2007
Defendant contends the evidence fails to support his conviction for being a felon in possession of ammunition because the only evidence was a photograph of the purported ammunition found in the vehicle and there is no evidence the objects in the photo were live shells.
In support of his claim, defendant cites two cases: In re Arcenio V. (2006) 141 Cal.App.4th 613, and In re Khamphouy S. (1993) 12 Cal.App.4th 1130. However, those cases both address the requirement of section 12101, subdivision (b), which provides that "[a] minor shall not possess live ammunition." This case involves a violation of section 12316, subdivision (b)(1), which prohibits certain felons from owning, possessing, or having under his or her custody or control, "any ammunition or reloaded ammunition." Ammunition is defined as "any bullet, cartridge, magazine, clip, speed loader, autoloader, or projectile capable of being fired from a firearm with a deadly consequence." (§ 12316, subd. (b)(2).) Section 12316 does not require the ammunition to be "live." Nonetheless, defendant argues that the words "projectile capable of being fired from a firearm with a deadly consequence" requires an element similar to live ammunition. We disagree. As the People note, the list of what can be considered ammunition is not exhaustive (§ 12316, subd. (b)(2)), and the words "capable of being fired from a firearm with a deadly consequence" qualify the word "projectile." (White v. County of Sacramento (1982) 31 Cal.3d 676, 680 [last antecedent rule applies to qualifying words, phrases or clauses].) We agree, since the words cannot sensibly modify the words magazine, clip, speed loader, or autoloader. Thus, we reject defendant's challenge.
Because we conclude that substantial evidence supports defendant's conviction of being a felon in possession of ammunition, we find no merit to his corresponding argument that the gang enhancement must be dismissed.
F. Receiving Stolen Keys on May 18, 2007
Defendant's final sufficiency of the evidence challenge is to his conviction of receiving stolen keys on May 18, 2007. He argues the prosecution failed to prove that the keys in the truck were the same keys as those stolen from Mainwaring.
Mainwaring testified that her purse, which contained the keys to her Ford Explorer that were on a key ring with her Albertson's card, her mailbox key, and an old house key, was stolen out of the trunk of her car. Mainwaring had a replica of the mailbox key, with the number "2376" on it. Deputy Robert Kwan testified the keys that were recovered contained a key ring with a key to a Ford car, a mailbox key with the number "2376" on it, a key chain that appeared to come from a Ford, and an Albertson's rewards card. When defendant was pulled over driving Acevedo's truck, Mainwaring's key was in it. Defendant fled. Mainwaring's home address had been entered into the GPS system in Acevedo's truck and was listed as a "recent location." According to defendant, the Ford key found in the truck could be "just another of the tens of millions of other Ford keys in existence." We disagree. As the People note, given the circumstances surrounding the finding of the Ford keys, i.e., "paired with the other items," there is sufficient evidence the stolen keys were Mainwaring's. Because there is sufficient evidence to support this offense, defendant's challenge to the gang enhancement attached to it is dismissed as being without merit.
III. CONVICTION FOR BOTH UNLAWFUL DRIVING UNDER
VEHICLE CODE SECTION 10851 AND RECEIVING VEHICLE
UNDER PENAL CODE SECTION 496
Defendant contends he was improperly convicted of unlawful taking under Vehicle Code section 10851 and receiving stolen property under Penal Code section 496 as to the same stolen vehicle. He correctly notes our state's highest Court has reaffirmed that a defendant may not be convicted of theft and receipt of the same stolen property. (People v. Ceja (2010) 49 Cal.4th 1, 3.) However, as the People point out, our Supreme Court has distinguished the crimes of driving and taking a car, and held that it is permissible to be convicted of both driving a stolen vehicle and receiving the same stolen vehicle. (People v. Garza (2005) 35 Cal.4th 866, 876.)
"[Vehicle Code] section 10851[, subdivision] (a) 'proscribes a wide range of conduct.' [Citation.] A person can violate section 10851(a) 'either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding).' [Citations.] [¶] A person who violates section 10851(a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. [Citations.] If, on the other hand, a section 10851(a) conviction is based on posttheft driving, a separate conviction under section 496[, subdivision] (a) for receiving the same vehicle as stolen property is not precluded. [Citations.]" (People v. Garza, supra, 35 Cal.4th at p. 876.)
Here, defendant was caught driving the truck three days after it had been taken. Thus, the theft of the truck was long since complete, and the driving constituted a separate, distinct, and complete violation of Vehicle Code section 10851, subdivision (a). The prosecution proceeded only on a theory that defendant unlawfully drove the truck. Under these circumstances, we conclude defendant was properly convicted of both driving the truck and receiving the stolen truck.
IV. CALCRIM NO. 220
To explain the reasonable doubt standard, the trial court instructed the jury with CALCRIM No. 220 (Reasonable Doubt). Defendant contends the instruction is not constitutionally adequate ("at best ambiguous and at worst . . . affirmatively misleading as to the prosecution's burden,") because it does not instruct the jury that, as to the gang enhancements associated with counts six, eight and nine (the May 18, 2007 offenses) it must find "each element" true beyond a reasonable doubt. He also asserts the term "something" is too vague. As a result, he argues the prosecution was relieved of its burden of proving guilt beyond a reasonable doubt, and thus, the enhancements attached to counts six, eight and nine should be reversed.
A. Standard of Review
"Under the United States Constitution and California law, the government must prove each element of a charged offense beyond a reasonable doubt. [Citations.] Whether an instruction correctly conveys this standard must be determined by examining the instruction in the context of all the instructions given the jury. [Citations.]" (People v. Wyatt (2008) 165 Cal.App.4th 1592, 1601 (Wyatt).) "The standard of review in an appellate challenge to an instruction on the ground of ambiguity is whether there is a reasonable likelihood that the jury applied the instruction in a way that denied fundamental fairness. [Citations.]" (People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157.)
B. Analysis
The jury was instructed with CALCRIM No. 220, as follows: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove the defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all of the evidence that was received throughout the entire tr[ia]l. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty."
Additionally, the jury was instructed that it "may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt." (CALCRIM No. 376.) Regarding the gang enhancement, the jury was given CALCRIM No. 1401, which instructed the jury that, upon finding defendant guilty of the crimes charged in counts 1, 2, 6, 8, or 9, they must "decide whether, for each crime, the People have proved the additional allegation that the defendant committed that crime for the benefit of, at the direction of, or in association with a criminal street gang. [¶] You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] To prove this allegation, the People must prove: [¶] One, the defendant committed the crime for eth benefit of, at the direction of, or in association with a criminal street gang; [¶] And two, the defendant intended to assist, further, or promote criminal conduct by gang members. [¶] Criminal street gang has been previously defined. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
As defendant concedes in his opening brief, at least two appellate courts have rejected similar arguments in published cases. (People v. Henning (2009) 178 Cal.App.4th 388, 405-406 & fn. 3 (Henning) [argument deemed to be so "frivolous" that "the taxpayers will not have to pay appellate counsel for having made this argument"]; Wyatt, supra, 165 Cal.App.4th at pp. 1600-1601.) The People also note that other cases have reached the same conclusion. (People v. Riley (2010) 185 Cal.App.4th 754, 767-770 (Riley); People v. Ramos (2008) 163 Cal.App.4th 1082, 1087-1090 (Ramos).)
Defendant's main arguments are that the above-cited cases and other similar cases were wrongly decided and/or that the Wyatt and Henning decisions are distinguishable because the juries in those cases were given other instructions (i.e., CALCRIM former No. 361 ["The People must still prove each element of the crime beyond a reasonable doubt."]) containing the "each element" language. We simply disagree. To begin with, we note that in Riley, our colleagues in Division One of this district observed: "First, at least one other court has concluded that CALCRIM No. 220 is adequate, even in the absence of CALCRIM [former] No. 361. (See Ramos, supra, 163 Cal.App.4th at p. 1089.) Further, it is clear that the Wyatt and Henning courts did not base their conclusions that CALCRIM No. 220 provided an adequate instruction solely on the fact that the trial courts in those cases instructed the juries with CALCRIM [former] No. 361. Although the Wyatt and Henning courts noted that the trial courts had included CALCRIM [former] No. 361 in the instructions, the courts indicated that the fact that this instruction was given was an additional reason why they concluded that the juries had not been misled into believing that they did not have to find the existence of each element of an offense beyond a reasonable doubt. [¶] We do not view the giving of CALCRIM [former] No. 361 as necessary to ensure that the jury understands that the prosecutor must prove each element of a crime beyond a reasonable doubt." (Riley, supra, 185 Cal.App.4th at pp. 769-770.) We agree. Based on the record before us, Henning and Wyatt are not materially distinguishable. Here, as in those cases, the "each element" language was not necessary for the jury to understand the prosecution's burden of proof. In addition to CALCRIM NO. 220, the court separately instructed the jury on the elements of each of the charged offenses and enhancements.
Moreover, we note the closing arguments of the attorneys focused on the reasonable doubt standard, the People's burden, and the elements of the offenses and enhancements. In fact, defense counsel's closing argument placed considerable emphasis on the reasonable doubt standard. Defense counsel's closing argument also highlighted the enhancement elements, i.e., whether defendant was driving to assist other gang members in committing crimes or to merely go to the store, whether he was driving to benefit the gang, whether he was driving to support his drug habit, and whether he was a mere passive participant in the gang. Under these circumstances, we can detect no possibility the jury misinterpreted or misapplied the relevant standard. Rather, it is apparent the jury was simply not persuaded by the defense theory of the case. The evidence against defendant was highly consistent and substantial.
We also reject defendant's contention that the use of the word "something" in the instruction is vague. He argues the word "something" referred to in the instruction refers to the gang allegation as a whole and not each element. The word's meaning is clear when read in context. It obviously refers to all of the elements or components of the charged offenses and enhancements as set forth by the court on the record. Likewise, we reject his claim that the jury was misled by the gang enhancement instruction because the group of elements was lumped together as a single "allegation." Defendant's contentions assume the jury failed to consider the instructions as a whole. We do not. We "assume the jurors are intelligent persons capable of understanding and correlating all the instructions. [Citation.]" (People v. Butler (2010) 187 Cal.App.4th 998, 1013.) Regarding defendant's reliance on case law outside of California, including federal cases,
"indicating that many other jurisdictions use the 'each element' or 'every element' language in their jury instructions on reasonable doubt" (Ramos, supra, 163 Cal.App.4th at p. 1090), we, like our colleagues in the First District, note he "has not cited any California or United States Supreme Court authority holding that it is constitutionally required." (Ibid., fn. omitted.)
V. SENTENCE ON GANG ENHANCEMENT
Defendant was sentenced to prison for a term of nine years four months. The total term was calculated as follows: principal term (count 6)—three years, plus consecutive term (count 6 enhancement)—three years, plus consecutive term (count 8)—eight months, plus stayed term (count 8 enhancement)—three years, plus concurrent term (count 9)—two years, plus stayed term (count 9 enhancement)—three years, plus concurrent term (count 10)—two years, plus consecutive term (count 4) to count 8—eight months, plus consecutive term (count 4 enhancement)—two years, plus concurrent term (count 1)—three years, plus concurrent term (count 2)—two years. He contends the trial court erred in imposing a consecutive, full three-year term for the gang enhancement attached to subordinate count 6. (Italics added.) We disagree.
Section 1170.1, subdivision (a), in relevant part, provides: "The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." Here, the trial court identified count 6 as the principal term. In sentencing defendant on the unlawful driving of a vehicle on May 18, 2007, in count 6, the trial court imposed a term of three years. The court then imposed a consecutive three-year term for the gang enhancement under section 186.22, subdivision (b). Given the trial court's designation of count 6 as the principal (not a subordinate) term, section 1170.1 does not apply.
VI. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.