Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Ct.No. FMB900085, J. David Mazurek, Judge.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P. J.
Defendant and appellant James Henderson, Jr., pled guilty to possessing cocaine base for sale. (Health & Saf. Code, § 11351.5.) Pursuant to a plea agreement, defendant was placed on probation. Defendant challenges the imposition of a requirement that he register as a gang member pursuant to Penal Code section 186.30. The People contend the evidence was sufficient for the trial court to determine defendant’s crime was gang related. We affirm.
BACKGROUND
On February 23, 2009, two detectives from the Twentynine Palms Police Department pulled over a car being driven by an individual, sometimes known as “T-Blue.” Defendant was in the passenger’s seat and appeared to be stashing something. The detectives recognized defendant as a known crack cocaine dealer. Defendant was searched at jail; he was clenching an ounce of cocaine between his buttocks. Defendant’s residence was also searched; a photograph from 1999 of defendant showing a gang sign was found. The police report from the day of the incident has “NO” marked in the “GANG RELATED” box.
The probation officer’s report states that defendant has tattoos: a gang name on his chest and a three digit number on his neck. Defendant told the probation officer that he was jumped into a gang at age 17, jumped out at age 21, and that he no longer has gang ties. The probation officer’s report states that photographs taken during the search of defendant’s residence show a closet full of blue clothing, including an item with a series of numbers and letters on the back in blue. A photograph of defendant throwing a gang sign at age 22 that had been marked with a Los Angeles gang name and the same series of numbers and letters that were on the item of clothing was also found. The probation officer recommended terms related to defendant’s “apparent continuing preference for the color blue.”
Blue is well known as the color of gangs sharing the affiliation of defendant’s gang.
At the sentencing hearing, defendant’s trial counsel objected to the imposition of gang-related probation terms due to the insufficiency of evidence. Defendant’s trial counsel noted the age of the photograph, the consistency of the age of the photograph with defendant’s stated years of previous gang involvement, the lack of indication of any significance of the numbers and letters on the photographs and clothes, and the lack of gang information in the initial police report.
The People’s trial counsel then offered information, from his experience, about defendant’s gang. The People also tried to tie the gang-related markings on the photograph and item of clothing to the gang, as well as the number tattooed on defendant’s neck. The People then informed the trial court that the driver of the vehicle was also a documented member of a Los Angeles gang, which was affiliated with defendant’s gang, and that selling rock cocaine was a primary function of both gangs, “particularly when [gang members] are together.” The People then requested a gang registration term in addition to other gang-related probation terms. The trial court then asked why the case was not charged as gang-related activity. The People responded that they were not aware of the driver’s gang affiliation until the morning of the sentencing hearing, when the People’s counsel discovered the information about the driver “by doing research and running that person.” Defendant’s trial counsel again asserted his objection to “insufficient evidence to justify the imposition of gang terms.”
The People’s trial counsel said that a two digit number identified the cross-street in Los Angeles, which identified a clique within defendant’s gang. However, defendant’s tattoo was a three digit number. Nonetheless, the three digit number tattooed on defendant’s neck was also included in the series of numbers and letters marked on the photograph of defendant throwing a gang sign. Thus, the tattoo may refer to a clique, but it would be a different clique than the one proffered by counsel.
The trial court then explained its view: “[Y]ou have somebody that is a self-admitted gang member, though he claims his association ended many years ago. He does have gang tattoos. He’s engaged in activity that is associated with gangs. He’s with another known gang member in the car. He’s got a photograph in his house of him throwing gang signs. It’s in his room. [¶] There are indications that he still has-I mean, people can have blue clothing, but given his association and his tattoos, it seems more than a coincidence that he would have all that blue clothing if he was not still somehow affiliated with the [gang]. [¶] And I think if he’s not a known gang-if he’s not associating or actively participating in a gang, it’s not going to be a problem for him.” The trial court then imposed gang-related probation terms, and ordered defendant “to register pursuant to Penal Code Section 186.30 with local law enforcement agency and show proof to probation officer.”
DISCUSSION
Defendant contends there was “no basis upon which the court could reasonably find that [his] crime was gang related.” The People contend the evidence was sufficient. We review the whole record in the light most favorable to the judgment (People v. Thompson (2010) 49 Cal.4th 79, 113), and affirm.
Penal Code “[s]ection 186.30 provides that ‘any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state’ for ‘[a]ny crime that the court finds is gang related at the time of sentencing or disposition’ must register as a gang member with local law enforcement.” (In re Jorge G. (2004) 117 Cal.App.4th 931, 938.) “[A] defendant’s history of participation in gang activities or criminal offenses may prove that a crime not otherwise or intrinsically gang related nevertheless falls within the meaning of [Penal Code] section 186.30. Thus, a crime committed by a defendant in association with other gang members or demonstrated to promote gang objectives may be gang related. However, the 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.” (People v. Martinez (2004) 116 Cal.App.4th 753, 762.) “It is axiomatic that statements by counsel are not evidence.” (People v. Richardson (2008) 43 Cal.4th 959, 1004 [referring to statements during trial].) Even if the statements of counsel were to be considered evidence, they would be subject to the restraints of the hearsay rule and, thus, absent an exception to the hearsay rule, a statement from a database search could not be repeated by counsel to prove the truth of the statement. (Evid. Code, § 1200; cf. Pen. Code, § 1203, subd. (b) [requiring “prior history and record” to be included in the probation officer’s report and mandating consideration of same, thereby providing exception for consideration of hearsay in the report].) “On appeal, we presume that a judgment or order of the trial court is correct, ‘ “[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” ’ [Citation.]” (People v. Giordano (2007) 42 Cal.4th 644, 666.)
The statements of the People’s trial counsel at the hearing were not evidence, or were inadmissible as hearsay. Thus, the evidence is that defendant, 1) was a crack cocaine dealer, 2) possessed cocaine base for sale, 3) possessed the cocaine base while being driven by “T-Blue” 4) admitted prior gang involvement, and 5) had clothing and possessions showing he retained gang loyalty. Because of the reference to the color blue in the name “T-Blue, ” the trial court could infer that the driver shared a gang affiliation with defendant and, thus, defendant was committing his crime in association with another gang member. While possessing cocaine base for sale is not intrinsically gang related, narcotic sales are commonly known as the primary activity of most gangs. Accordingly, the trial court could infer that a crack cocaine dealer, who retained gang loyalty or affiliation, and was found transporting his product with another gang member, was possessing the product “for the benefit of, at the direction of, or in association with a criminal street gang.” (People v. Martinez, supra, 116 Cal.App.4th at p. 762.)
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST J., MILLER J.