Opinion
B184563
12-6-2006
THE PEOPLE, Plaintiff and Respondent, v. JUAN FRANCISCO TRINIDAD, Defendant and Appellant.
A. William Bartz, Jr. for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Juan Francisco Trinidad was convicted by jury of selling (Health & Saf. Code, § 11379, subd. (a)), possessing (§ 11378), and transporting (§ 11379, subd. (a)) a controlled substance. The jury also found it true that all three offenses were committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1).) The trial court assumed there had been a trial on an allegation that appellant had been convicted of a prior offense and taking that into account, sentenced appellant to a total of 11 years in state prison. Appellant appeals from the judgment. We affirm the judgment of conviction. We reverse only for a trial on the prior strike allegation and for resentencing. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On June 30, 2004, detectives working undercover conducted a surveillance on appellants residence. At about 8:15 p.m. that evening, appellant left his home and drove to a Home Depot where he parked his car. Edward Arquette walked over to appellant and exchanged an envelope for a baggie containing 7.03 grams of methamphetamine. After Arquette drove away, he was stopped by police officers on a traffic stop. A pat-down search of Arquette revealed $432 and the methamphetamine, which he possessed for the purposes of sale and distribution.
On August 27, 2004, Detective Antonio Marin was working undercover and conducting surveillance on appellants residence. This was part of an on-going investigation of narcotics sales by the Gardena 13 street gang. At about 5:00 p.m., appellant drove from his residence to a laundromat where he parked next to a 4Runner. Appellant approached the 4Runner and handed its driver, Juan Gonzalez, a stack of United States currency. After Gonzalez drove away, he was stopped and arrested. A removable magnetic box was attached to the undercarriage of the 4Runner. Gonzalezs wallet contained $786 and a pay-owe sheet. Gonzalez was a Gardena 13 member. Gonzalezs wife was also in the car. She had a roll of money totaling $2,540.
On October 19, 2004, Detective Steven Swain was on surveillance of appellants home to serve a search warrant. At approximately 5:00 p. m., appellant left his home and drove away. Detective Erick Lee tried to stop appellant. However, appellant made many furtive moves in an attempt to allude capture. Eventually, appellant pulled over. A ripped plastic bag contained 1.3 grams of methamphetamine was inside the car. The packaging showed that the methamphetamine was for sale and not for personal use. White powder was throughout appellants car. Appellant had $395.
Searches of appellants home and garage revealed $ 8,500 in a dresser drawer, pay-owe sheets, $56,000 in a narcotics-laced fire-proof safe under the bed in the master bedroom, a police scanner set for the Gardena Police Departments home frequency, and live ammunition and magazines for assault and semi-automatic weapons. Also, a number of items in the home and garage showed appellant was a member of the Gardena 13 street gang, including a white bandanna with his gang moniker.
2. Procedure.
The matter proceeded to trial before jury.
Appellant was convicted as charged in the three-count information of selling, possessing, and transporting a controlled substance. (Health & Saf. Code, §§ 11379, subd. (a), 11378, 11379, subd. (a).) As to each of the three counts, the jury found it true that the offense was committed for the benefit of a criminal street gang. (Pen. Code, § 186.22, subd. (b)(1).) Thereafter, the trial court assumed appellant had been convicted of a prior offense as had been charged, and factoring that assumption into the sentencing choices, sentenced appellant to a total of 11 years in state prison.
Appellant appeals from the judgment. We reverse only for a trial on the prior conviction allegation and for resentencing. In all other respects we affirm.
DISCUSSION
1. The trial court did not abuse its discretion in ruling on appellants motion to disqualify a juror for cause.
Appellant contends the trial court improperly denied his motion to disqualify Juror No. 1824, thus forcing him to use all of his peremptory challenges. This contention is not persuasive.
Juror No. 1824 was a firefighter and paramedic. He was the first prospective juror to be voir dired. When questioned, Juror No. 1824 referred to his experience in dealing with gang members and drug overdoses and stated he recognized appellants tattoos as gang tattoos. Based upon this experience, Juror No. 1824 stated in part, "I just think with my experiences and — looking at the individual thats charged in this case, I dont think I can give a fair shot." The trial court informed Juror No. 1824 that he was to be reassigned to the jury room and potentially assigned to a civil case, which meant he might have to come back the next day. After the trial courts statement, Juror No. 1824 said that he wanted to think about it.
Other prospective jurors were voir dired, including one whose home had been burglarized twice by gang members and whose brother-in-law handled gang related matters for the Torrance Police Department, one whose 21-year-old daughter had died from drugs, and one whose uncle had been murdered by gang members. Thereafter, the trial court and defense counsel asked additional questions of Juror No. 1824 to determine if he could be fair, notwithstanding his experiences. Juror No. 1824 stated he had listened to the responses given by other potential jurors and wanted to clarify his earlier statements. In part, Juror No. 1824 said, "[Ive never] been a juror or called to jury duty. Kind of listened to some of the other potential jurors . . . . I want to make myself clear. I just wanted to give [my] life experiences[, w]hich I think is what you are actually asking of us. [¶] . . . [¶] I believe I can give a fair trial." He further stated, "I can always be fair. I dont think I was stating I can be unfair. Just sharing . . . some of the experiences I do have[. Like] one of the other jurors said[, I] probably have more experience dealing with individuals that have gang activity or criminal activity than other people." Juror No. 1824 also stated he would not find appellant guilty if the evidence was to the contrary.
The trial court denied appellants request to discharge Juror No. 1824 for cause. The trial court concluded that this juror had been disingenuous at the outset in an effort to avoid jury duty. However, thereafter, Juror No. 1824 showed he could be fair, especially after listening to other potential jurors who were willing to serve even though they had some familiarity with drugs or gangs. Subsequently, appellant used a peremptory challenge to excuse Juror No. 1824. The defense exhausted all of its 10 peremptory challenges.
We review the trial courts overruling a challenge for cause for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 715.) "A challenge to a prospective juror should be sustained when the jurors views would `prevent or substantially impair the performance of his or her duties as a juror in accordance with the instructions and oath. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 456.) "[I]f the prospective jurors statements are equivocal or conflicting, [the trial] courts determination of the persons state of mind is binding. If there is no inconsistency, the reviewing court will uphold the courts ruling if substantial evidence supports it. [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 488.)
The trial court was in the best situation to observe Juror No. 1824s demeanor and intonation and evaluate Juror No. 1824s conflicting statements about his ability to be fair. The trial court concluded that Juror No. 1824s first statements were made in an attempt to avoid jury service. However, after listening to other jurors recount experiences with gangs or drugs, Juror No. 1824 articulated a clearer picture of his ability to be fair. While appellant suggests the trial court intimidated Juror No. 1824 into changing the position first taken, the record supports a contrary conclusion. The trial court simply informed Juror No. 1824 of reality — Juror No. 1824 would be sent back to the jury room and potentially sit on a civil case.
The trial courts factual determination that Juror No. 1824s first statements were a disingenuous attempt to avoid jury duty and that his subsequent statements more accurately described his state of mind and his ability to set aside any prejudices and be fair, is supported by the record and demonstrates that the court did not abuse its discretion.
2. There was substantial evidence to support the street gang enhancement.
Appellant contends there was no substantial evidence to support the street-gang enhancement findings pursuant to Penal Code section 186.22, subdivision (b)(1). This contention is unpersuasive.
"The law applicable to a claim of insufficiency of the evidence is well settled: ` "In reviewing [a claim regarding] the sufficiency of the evidence, we must determine `whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] `[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We ` "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." " [Citation.] If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation], as is the due process clause of article I, section 15, of the California Constitution [citation]. [Citations.]" (People v. Carter (2005) 36 Cal.4th 1114, 1156.)
Penal Code section 186.22, subdivision (b)(1)(A) mandates an increased sentence if the crime is 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 . . . ."
"It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. [Citation.]" (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) "To prove a gang allegation, an expert witness may testify about criminal street gangs. [Citation.]" (People v. Romero (2006) 140 Cal.App.4th 15, 18.)
Appellant first argues there was insufficient evidence to meet the statutes criteria because the drugs were sold as a part of his own personal, financial enterprise and not for the benefit of the Gardena 13 criminal street gang. The facts belie appellants argument. The facts support the jurys verdict that appellant was engaged in selling, possessing, and transporting of drugs for the benefit of Gardena 13.
Gardena 13 was a criminal street gang that had about 300 members in Gardena. The "13" meant that the members of the gang were affiliated with South Side Hispanics when they went to prison. In prison, they fell under the control of the EME or Mexican Mafia. They often displayed the Green Bay Packers insignia to identify themselves because of the colors and the letter "G."
On two occasions over a period of months, appellant was seen engaging in narcotics transactions. On June 30, 2004, he sold 7.03 grams of methamphetamine to Arquette in a Home Depots parking lot. On August 27, 2004, in a laundromat parking lot, he handed a stack of United States currency to Juan Gonzalez. At the time, Gonzalez and his wife had items showing that they were involved in selling drugs. Gonzalez had $756 and pay-owe sheets; Gonzalezs wife had $2,540; and there was a removable magnetic box, a secret storage compartment underneath Gonzalezs vehicle. On October 19, 2004, the day appellant was arrested, he had 1.3 grams of methamphetamine, which he possessed to sell.
On the day appellant was arrested, a large amount of cash was in his home and garage ($8,500 in a dresser and $ 56,000 in a safe). Ammunition and magazines for assault and semi-automatic weapons and pay-owe sheets were also found. Additionally, Gardena 13 gang paraphernalia was dispersed throughout appellants home. A white bandanna was next to police scanner on the dining room table. The bandanna said "`Gardena 13 " and " `Bullet, " appellants gang moniker. A tool box had Gardena gang writing that said " `WS Little [Locos], "which meant a clique of the Gardena 13. A wooden placard said "`Gardena. " There was information from a July 2004 funeral of a gang member and a book in which members of the gang who attended the funeral were listed. A gang insignia was on a car parked in the driveway. It said, "In loving memory of Little Ray, Gardena Westside," showing appellant was paying homage to a fellow gang member. Green Bay Packers paraphernalia were strewn throughout the home. Appellants body was covered with Gardena 13 gang tattoos.
Detective Lee testified as a gang expert. He testified that Gardena 13 member (Freddy Berretti) was convicted in 2003 of attempted murder and Gardena 13 member Raymond Torres was convicted in 2003 of manslaughter. Additionally, Gonzales (the man who received money from appellant in the laundromat parking lot) was a Gardena 13 member.
Detective Lee opined that appellants numerous gang tattoos showed appellant was associating with other gang members. The tattoos, the gang paraphernalia throughout appellants home, and appellants 2002 admission to police officers, demonstrated that appellant was a member of the Gardena 13 gang.
With regard to proving that appellants criminal activities were done for the benefit of Gardena 13, Detective Lee testified to the following. If a gang member wanted to leave the gang, he or she, would have to move out of the gangs territory and stop committing crimes. If a gang member was committing crimes within the gangs territory, the crimes were for the gangs benefit because the gang expected its members to commit crimes under its umbrella. As gang members got older, they wanted to be part of the gangs money-making endeavors. The primary money-making activity of Gardena 13 was drug sales. Gang members gave kick-backs to the gang from the sale of drugs. In this way, drug sales promoted, furthered, and assisted the gang. The money given to the gang was paid as taxes to the Mexican Mafia. The money helped gang members in and out of prison, such as by buying weapons, paying for lawyers, and paying for gang members homes. When drug sales were committed under the gangs umbrella, the gang expected money from the sales. Gang members benefited by relying upon the gangs clout in the area.
Detective Lee opined that if a gang member was seen selling methamphetamine, and later seen giving a large amount of currency to another gang member, the transactions were drug transactions using the gangs criminal network to facilitate the sale.
Thus, there was evidence that appellant was a member of Gardena 13 gang, as shown through appellants admission, tattoos, gang paraphernalia, and activities. There was also evidence of appellants association with other gang members in conducting the gangs business of selling narcotics, such as when appellant gave Gonzalez a large amount of money on August 27, 2004, when he sold methamphetamine to Arquette, and when appellant possessed methamphetamine the day of his arrest. These activities were examples of the gangs criminal enterprise. And, a gang expert, Detective Lee, opined that appellants activities were for the benefit of, or in association with, the Gardena 13 and committed with the specific intent to promote, further, or assist criminal conduct by gang members.
From all of this evidence the jury reasonably concluded that the crimes were in furtherance of the Gardena 13 gangs criminal mission and for its benefit. Thus, there was sufficient evidence that appellants crimes were committed for the benefit of, at the direction of, or in association with, the Gardena 13 criminal street gang. (Pen. Code, § 186.22, subd. (b)(1).)
Relying upon Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, appellant also argues that the evidence did not prove he had the specific intent required by Penal Code section 186.22, subdivision (b)(1).
In People v. Romero, supra, 140 Cal.App.4th 15, Division Four of this District recently analyzed and appropriately rejected Garcias reasoning. Romero, supra, stated, "In Garcia, the Ninth Circuit found insufficient evidence of specific intent to promote, further, or assist in other criminal conduct by the defendants gang. We disagree with Garcias interpretation of the California statute, and decline to follow it. (See People v. Burnett (2003) 110 Cal.App.4th 868, 882 [federal authority is not binding in matters involving state law]; see also Oxborrow v. Eikenberry (9th Cir.1989) 877 F.2d 1395, 1399 [state court interpretation of state statute binding on federal court unless interpretation is a subterfuge or untenable].) By its plain language, the statute requires a showing of specific intent to promote, further, or assist in `any criminal conduct by gang members, rather than other criminal conduct. (§ 186.22, subd. (b)(1), italics added.)" (People v. Romero, supra, at p. 19; see also People v. Hill (2006) 142 Cal.App.4th 770 [rejecting Garcias analysis].)
Thus, the specific intent element of Penal Code section 186.22, subdivision (b)(1)(A), is satisfied if appellant had the specific intent to "promote, further, or assist" other members of Gardena 13 by participating in any criminal conduct, such as through the drug transactions discussed above. As Detective Lee testified, these transactions assisted Gardena 13 criminal street gangs primary money-making activity of selling drugs. Since there was such evidence, there was substantial evidence to prove the required elements of Penal Code section 186.22, subdivision (b)(1).
3. The matter must be remanded for a trial on the prior conviction allegation.
Appellant contends we must reverse the conviction on the prior conviction allegation because there was no evidence presented to prove the allegation. As the People concede, this contention is persuasive.
The information alleged appellant had been convicted in 1995 in the Los Angeles Superior Court of violating Health and Safety Code section 11351.5. Before the jury returned its verdict, appellant waived his right to a jury trial on this prior conviction allegation. However, the record does not show that appellant ever received a trial, either by jury or by court, on the allegation. Additionally, the record does not disclose that appellant admitted the prior conviction allegation. Rather, the parties and the court incorrectly assumed that the prior conviction allegation had been proven and when appellant was sentenced, the trial court added prison time to appellants sentence based upon that assumption. Since there was no evidence to support the finding that appellant suffered a prior conviction as had been charged, there was insufficient evidence to prove the allegation.
In a noncapital proceeding, a retrial of a prior conviction reversed on appeal for insufficient evidence does not violate the prohibition against double jeopardy and does not violate principles of fundamental fairness, law of the case, or res judicata. (People v. Monge (1997) 16 Cal.4th 826, 844-845; Monge v. California (1998) 524 U.S. 721, 734;People v. Barragan (2004) 32 Cal.4th 236.) Further, because appellant has not shown prejudice, remand for a trial on the prior does not violate his speedy trial rights. (People v. Martinez (2000) 22 Cal.4th 750, 769.) We will remand to the trial court for a trial on the prior conviction allegation. (People v. Barragan, supra, at p. 239; People v. Fielder (2004) 114 Cal.App.4th 1221, 1234.)
4. Upon remand, the trial court must clearly explain the calculation of the sentence.
Appellant contends the trial court erred in imposing the low-term of two years for count 3, transporting a controlled substance. The People argue that appellant is misreading the transcript and because the minute order and abstract of judgment conflict with the trial courts oral pronouncement of sentence, the oral pronouncement controls.
Trial courts statements with regard to sentencing are not clearly articulated in the reporters transcript, resulting in confusion as to the trial courts sentencing choices. The trial on the prior conviction allegation that is to be held on remand may affect the sentence. The trial court is also directed on remand to re-sentence appellant and to articulate clearly the sentencing choices.
DISPOSITION
The judgment of conviction is affirmed. The matter is reversed and remanded for a trial on the prior conviction allegation and for resentencing.
We concur:
KLEIN, P. J.
CROSKEY, J. --------------- Notes: "`G-13 " was above appellants left eyebrow. " `213, "signifying that the gang resided in the Los Angeles area code, was on his left ear. " `Gardena " was across his stomach. " `WSG, "that stood for Westside Gardena, was on his left shoulder and neck. " `WS, " standing for " `Westside, " and " `G13 " were on his right shoulder. " `Rest in peace . . . Sharky, " paying homage to the death of a fellow gang member, was on appellants right shoulder. "`Gardena 13 " was on his left forearm. " `Gardena " was on the back of his neck. " `SUR, " suggesting "south" and that appellant fell under the EME umbrella, was on his right hand, and " `G-13 " was on his left fist.