Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County, No. INF054364 John J. Ryan, Judge.
William J. Capriola, 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, Daniel Rogers and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
The trial judge did not err in denying defendant’s renewed motion to suppress evidence of a gun found in a vehicle next to defendant. Substantial evidence supports the jury’s verdict and gang enhancement findings.
By not preserving the issue for appeal, defendant forfeited his claim the trial court erred in answering a question from the jury. His claim of ineffective assistance of counsel for not objecting to the way the court responded to the jury’s question also fails. In any event, he was not prejudiced by the court’s response to the question. We affirm.
I
FACTS
A jury found defendant Rolando Esteban Sanchez guilty of first degree murder with deliberation and premeditation as charged in count one of the information, but that it was not true the crime was committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b). (Unless otherwise noted, all statutory references are to the Penal Code.) However, the jury found defendant personally and intentionally discharged a firearm and proximately caused great bodily injury or death to another person within the meaning of sections 12022.53, subdivision (d) and 1192.7, subdivision (c)(8).
Defendant was found guilty of arson as charged in count two, possession of stolen property as charged in counts three, nine and ten, burglary as charged in count four, possession of a concealed weapon as charged in count five, possession of a loaded firearm as charged in count eight and active participation in a criminal street gang as charged in count eleven. The jury found the gang allegation under section 186.22, subdivision (b) to be true as to counts two, three, four, five, eight, nine and ten. As to count five, the jury found it to be true defendant was in possession of a stolen firearm within the meaning of section 12025, subdivision (b)(1)(2). As to count eight, the jury found it to be true defendant was in possession of an unregistered firearm within the meaning of section 12031, subdivision (2)(F).
The court sentenced defendant to state prison for a total indeterminate sentence of 63 years to life.
The Decedent
At 7:33 p.m. on January 8, 2006, the California Highway Patrol was dispatched to the area of Tipton Road and Highway 111 in Palm Springs where a vehicle was engulfed in flames. The area is desolate and remote. After the fire department arrived, the vehicle exploded. When the fire was extinguished, officers observed what appeared to be the remains of a human body in the fetal position.
The decedent was identified as Sammy Sanchez. He died from gunshot wounds. One of the bullets recovered could have been fired from a Sig Sauer pistol, but there were not enough individual characteristics on the bullet to make an identification.
The Gun
A former police officer who had been assigned to a gang unit testified at trial. On April 5, 2006, the officer was on patrol when he stopped Adolfo Gutierrez, whose moniker is “Little Hitler, ” in his vehicle for a traffic violation. Defendant was a passenger. A nine-millimeter semiautomatic pistol known as a Sig Sauer with serial number U638705 was found close to where defendant was seated in the vehicle. Also found was a police scanner set to the frequency of the Cathedral City Police Department.
The police ran a check on the gun. It was not registered to defendant. The gun had been reported stolen from a Riverside County Sheriff’s detective on October 22, 2005.
A search warrant was obtained for defendant’s residence. In defendant’s room, police found counterfeit money, expended shell casings, handcuffs, firearm magazines and “lots of ammunition.” Credit cards not in defendant’s name, expended shell casings and a cell phone were found in a hole in the wall. A stolen trailer was parked just outside the house.
The Interview
After the search, police interviewed defendant on April 5, 2006. Defendant admitted he handed the gun to Gutierrez to secrete it in the vehicle. Defendant explained: “... I didn’t plan on hurting nobody. It’s just for my protection....” Defendant said he “bought that gun off some guy named Enrique” who calls him from time to time from blocked numbers. Defendant said: “... I don’t know his number, I don’t know where he lives, man. And I’m telling the truth on that.” Defendant said he should have left the gun home. He said the same officer had pulled him over once before, after Sammy Sanchez died, and he knew he should not have carried the gun around.
As the interview progressed, defendant admitted he shot Sammy Sanchez: “... I just shot him, man.” He admitted he used the gun seized at the time of his arrest. Defendant told the detective he placed Sammy Sanchez in the back of the vehicle, and set fire to the car because his fingerprints were all over it. He threw his shirt into the fire and he threw his pants away because they were stained with blood.
The Gang
The Barrio Dream Homes criminal street gang started in the late 1960’s and early 1970’s. It was “geared towards retired veterans” from World War II. Its name arose from a sign on Ramon Road: “Come and Get your Dream Homes.” Because the sign was not maintained, it deteriorated and eventually just read “Dream Homes.” According to Richard Twiss, an investigator in the Riverside District Attorney’s Office, “[B]y the 1970’s, you had a large Hispanic, 80 percent of people that moved in that area were Hispanic. And by the ‘70s, there was a group of individuals that went ahead and started calling themselves Dream Home, Dream Homes gang.” The gang is located in Cathedral City.
The Cathedral City Police Department has documented about 130 members. The gang was recently served with an injunction by the Riverside County District Attorney’s Office “as being a nuisance to the community of Riverside County as a criminal... street gang.”
An officer with the Coachella Valley Violent Crime Gang Task Force said the gang “has been very active. They have committed everywhere from murders all the way down to the felony vandalisms and everything in between. They’ve been responsible for robberies. They’ve been responsible for drugs sales. They’ve been responsible for stolen vehicles and they have been responsible for burglaries. So this is a very active criminal street gang and it is well known within the Coachella Valley.”
Twiss testified that as of the time of the murder, the primary activities of the gang “included murder, attempted murder, possession of firearms, possession for sales of narcotics, burglary, possession of stolen vehicle, you know, pretty much... a majority of what is listed within the 33 predicate within 186.22 (a).”
A gang expert testified about the June 28, 2002 certified conviction of Barrio Dream Homes gang member Donovan Anthony Ross for sales of methamphetamine. He also testified about the December 9, 2003, conviction of gang member Christopher Barkley for burglary. And he testified about the August 15, 2005, conviction of gang member Michael Leroy Tagle for possession of a stolen vehicle.
During a traffic stop in January 2006, defendant was in the company of Barrio Dream Homes gang members. He admitted that he, too, was a member of the gang. During a police interview in April 2006, defendant also admitted being a member of the gang. A gang expert stated: “[I]t’s my opinion that not only at the time of the homicide was he a member of the Barrio Dream Homes gang but he continued his membership and association with members of the gang after the homicide up to the time of his arrest.”
The gang expert said the decedent, Sammy Sanchez was an “OG, ” an older or original gangster member of the Barrio Dream Homes gang. He was asked whether or not Sammy Sanchez’s murder was committed for the benefit of and in association with the Barrio Dream Homes gang. He responded: “[T]here’s a situation where [defendant]... was involved in an earlier incident where he felt disrespected. And the fact of the matter is he made statements to that he didn’t want to be — ever to be punked anymore. Therefore, you have a situation where you have this – this OG gang member who has put in a lot of work, who does have a name for him, is — that is coming over to his residence, and this was an opportunity for [defendant] to make a name for himself and present himself as a strong individual gang member and not somebody that is going to get pushed around. [¶] And how that benefits the gang is that that individual gang member not only elevated his status but the gang overall is going to be continued to be viewed not just within — members within their own gang but outside of the gang community from the rivals and other allies is that this is a gang that if they need to take care of business, they’re going to take care of business, and they’re not going to care if it’s part of their gang or — or an outside gang, they’re going to get the job done. And that’s the message that they want to send and that’s the reputation that this gang has. [¶] And there’s been, as I said earlier, five other documented incidents starting back in 1993 where this gang has killed or tried to kill each other and other — in other related incidents within the disputes and the gang has continued to thrive to this day to make them what they are today.”
Defendant was known to steal and “he’d steal anything that — wasn’t bolted to the ground.” Under gang hierarchy, an older gang member was allowed to take stolen property from defendant. The expert explained that older gang members take their cut from the illegal gains of younger gang members, a process known as taxing. Defendant was heard to say he did not want Sammy Sanchez taxing him anymore.
The Motion to Suppress
A motion under section 1538.5 was originally heard in conjunction with the preliminary hearing, and renewed after the information was filed. By the time of trial, the officer who initiated the traffic stop, Daniel Mackie, was “a defense investigator working for the conflict panel” specializing in gangs. At the preliminary hearing, another officer testified Mackie was injured on duty and unable to attend the hearing. At trial, Mackie testified as a gang expert for both the prosecution and the defense.
At the original motion, another officer testified that Mackie had told him he saw a truck roll through a stop sign. He said he obtained permission to search the vehicle and saw a Sig Sauer handgun in the console.
Prior to trial, defense counsel argued in the renewed motion: “So we proceed to preliminary hearing, with the 1538.5 motion filed concurrently, and Officer Mackie doesn’t come to court. And really his unavailability is immaterial considering that the prosecution, despite efforts to show every other reason that they could possibly think of for detaining the vehicle, the magistrate clearly said the reason this vehicle was detained, and the evidence I’m admitting to support it under 1280 of the Evidence Code, is that California stop. So that portion of the police report comes into evidence without any testimony, other than the custodian of records saying this is a true copy of the report.” Defense counsel continued: “Officer Mackie should have testified, or there should have been some other evidence to support the prosecution’s burden at the preliminary hearing.”
The prosecutor stated at the renewed motion: “We had three days of live testimony. We had the two backup officers at the scene. We had the dispatch records. We had Officer Mackie’s police report, which was admitted as an exception to the hearsay rule, and I think that’s very important. It wasn’t inadmissible hearsay. It was admissible hearsay.... He also stated it was exceedingly trustworthy.”
The superior court judge ruled on the renewed motion as follows: “I’m going to deny the motion to suppress. The portion of the police report that came in pursuant to 1280 of the Evidence Code, the official records exception, that the magistrate allowed that portion in, I think was proper. The fact that the officers, when they were outside the vehicle, were able to see inside the vehicle, the barrel of the gun sticking out from — I believe it was under the seat, justified going into the vehicle and seizing the weapon. [¶] The impound search after the driver’s arrest was proper. There was an allegation that there was a search prior to the search warrant being executed on the house of the defendant, the room of the defendant. I don’t find any evidence that the officer did anything other than to — what they call freezing the house or freezing the location by going in and clearing it of people in the house and then waiting to do the search after the search warrant was signed. [¶] So the motion to suppress is denied, and therefore the 995 motion is also denied.”
The Note from the Jury
While deliberating, the jury sent the following note to the court: “What factors should we [consider] to determin[e] if the defendant had control over the [vehicle] or direction of the [vehicle] in regards to count 5 line 4”
The prosecutor made a few suggestions on how to respond. Defense counsel stated: “The only suggestion I have is consider all the circumstances, you know, including his relationship, if any, with Aldolfo Guiterrez. I don’t know how else to answer that, it’s a little confusing.” Counsel then worked on a response that was mutually agreeable.
After remarking, “I think that’s kind of like directing a guilty verdict, but I’ll send this back, ” the court responded to the jury’s question with the response both counsel agreed upon: “Question #1 [¶] You may consider all the circumstances including Rolando Sanchez’ relationship, if any, with Adolfo Gutierrez in deciding control or direction of the vehicle. You may also refer to CALCRIMs 400 and 401, and any other instruction.”
II
DISCUSSION
Section 1538.5 Motion
Defendant litigated a section 1538.5 motion to suppress evidence in conjunction with the preliminary examination. He sought “to suppress all evidence obtained as a result of his unlawful detention.” As a passenger in the truck driven by Adolfo Gutierriez, defendant was detained when the officer stopped the truck. (Brendlin v. California (2007) 551 U.S. 249, 251, 263.) The prosecution contended the truck was pulled over for a violation of Vehicle Code section 22450, subdivision (a), failure to stop at a stop sign. The officer who conducted the stop, Mackie, did not testify. The magistrate admitted into evidence as an official record (Evid. Code, § 1280) that portion of the officer’s police report setting forth the purported justification for the stop. The defense did not call Mackie as a witness to cross-examine him (Evid. Code, § 1203, subd. (a)), ostensibly because he was injured and unavailable.
The prosecution also attempted to justify the stop by introducing the testimony of officers who responded to the location of car stop. These officers testified to hearsay statements Mackie made to them about the stop. We do not consider these statements because, as the magistrate recognized, such hearsay statements may be admissible pursuant to section 872, subdivision (b) for purposes of determining at a preliminary examination whether probable cause supports charging a defendant in superior court, but that section does not apply in the context of a section 1538.5 hearing, even if it is held in conjunction with a preliminary examination.
Officer Scott Sharpe responded to the scene while defendant was still seated in the truck. From outside the driver’s door, Sharpe saw a gun barrel sticking out of the center console, below the radio.
The magistrate found the truck had been lawfully stopped and denied the motion to suppress. Defendant relitigated the motion in the superior court (§ 1538.5, subd. (i)) and agreed the motion would be limited to the transcript of the preliminary examination. That motion, too, was denied. Defendant contends the prosecution was required to justify the reasonableness of the stop by live testimony and it was error to admit into evidence as an official record that portion of Mackie’s report setting forth the purported justification for the stop.
Assuming the prosecution was required to prove the justification for the initial detention by live testimony, rather than through admitting a portion of his police report into evidence (see People v. Johnson (2006) 38 Cal.4th 717), any error was harmless. This is not a case where the police unlawfully stopped a vehicle and then conducted pat-down search of the passenger, finding contraband. In such a case the contraband could correctly be characterized as a fruit of the passenger’s unlawful detention. Here, even if defendant was unlawfully detained, the thing searched was the cab of the truck. “A passenger in a vehicle may not challenge the seizure of evidence from the vehicle if the passenger asserts ‘neither a property nor a possessory interest in the automobile nor an interest in the property seized.’ (Rakas v. Illinois (1978) 439 U.S. 128, 148.)” (People v. Valdez (2004) 32 Cal.4th 73, 122.) Defendant made no such assertion. Accordingly, we find the court did not err in denying defendant’s motion to suppress evidence.
Carrying a Concealed Weapon in a Vehicle
Defendant next contends a lack of substantial evidence to support his conviction on count five, carrying a concealed weapon in a vehicle. He says there was no evidence the vehicle driven by Gutierrez was under his control or direction.
In addressing challenges to sufficiency of the evidence, “the reviewing court 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.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”‘ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 987, 1053-1054.)
“A person is guilty of carrying a concealed firearm when he or she does any of the following: [¶] (1) Carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.” (§ 12025, subd. (a)(1).)
“The statute does not require that the defendant have the exclusive possession and control of the firearm. It is enough if a person carries concealed within a vehicle any firearm, that the vehicle is under the control or direction of such person, that the firearm is capable of being concealed on the person, and that the person carrying the firearm within the vehicle does not have a license to carry it.” (People v. Davis (1958) 157 Cal.App.2d 33, 36.) In People v. Hall (1998) 67 Cal.App.4th 128, the defendant’s conviction under section 12025 was affirmed, even though he was also a passenger. (Id. at pp. 132-133.)
Here defendant admitted he was carrying the gun in the vehicle. In his interview, he bemoaned the fact he carried it even though the same officer had previously stopped him. Under these circumstances, we cannot find an insufficiency of the evidence.
Theory of Count Five
About count five, defendant also argues the jury was erroneously permitted to return a conviction on a legally insufficient theory when the court responded to a question from the jury. Because defendant both invited error and forfeited the issue for appeal, his argument fails. (People v. Rodrigues (1984) 8 Cal.4th 1060, 1193; People v. Bohana (2000) 84 Cal.App.4th 360, 373; People v. Matian (1995) 35 Cal.App.4th 480, 484, fn. 4; Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212.)
Defendant complains he received ineffective assistance of counsel with regard to the response to the jury’s question. To prevail, defendant must show ‘“counsel’s representation fell below an objective standard of reasonableness... under prevailing professional norms.’” (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 688.) He must also show the inadequacy was prejudicial in that, ‘“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” (People v. Ledesma, supra, at pp. 217-218, quoting Strickland v. Washington, supra, at pp. 693-694.)
Not only has defendant not shown defense counsel’s representation fell below an objective standard of reasonableness, he has not shown he was prejudiced. The prosecution’s case against him was overwhelming. How the court responded to the jury’s question made no difference in the outcome for defendant. (Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 45 Cal.2d 818, 836.)
Gang Enhancements on Counts Four, Nine and Ten
Defendant next argues there is insufficient evidence to support the jury’s true findings on the gang enhancements on counts four, nine and ten. Defendant was convicted of burglary of a storage shed on count four and possession of stolen property from that burglary in count nine. He was convicted of possession of stolen property from a residence in count ten.
“[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, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished...” (§ 186.22, subd. (b)(1).)
A gang expert’s testimony alone is not enough to find an offense was gang related. But an expert’s testimony coupled with other evidence, from which the jury could reasonably infer a crime was gang related, is sufficient. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931.) “Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” (People v. Villalobos (2006) Cal.App.4th 310, 322.)
Mackie testified that when he stopped the truck Gutierrez was driving, and in which defendant was a passenger, on April 5, 2006, the stolen tools forming the basis of counts four and nine were found in the truck, and that defendant committed the burglary together with Gutierrez and that Gutierrez was a fellow gang member. He also testified the crimes were committed to benefit the gang.
The items forming the basis for count ten were found in and just outside defendant’s home when the search warrant was executed. One of them was a trailer, and a gang expert testified possession of stolen vehicles was one of the primary activities of the gang. (Veh. Code § 550.) Property stolen by defendant was also subject to taxing by gang members of the Barrio Dream Homes gang, and defendant was heard to complain because he had to share his illegal gains. Portions of gang proceeds are used to support imprisoned gang members. Thus, whether he resented it or not, defendant’s stolen property was used to benefit the gang. Additionally, a gang expert testified stealing was done for the benefit and furtherance of the Barrio Dream Homes gang.
Substantial evidence supports the jury’s gang enhancement findings. Under these circumstances, we conclude counts four, nine and ten were gang related within the meaning of section 186.22, subdivision (b)(1).
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J. BEDSWORTH, J.