People v. Espinoza CA3 ( 2015 )

Filed 9/29/15 P. v. Espinoza CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C076516
Plaintiff and Respondent, (Super. Ct. No. SF117804A)
v.
MATTHEW ARMANDO ESPINOZA,
Defendant and Appellant.
A jury found defendant Matthew Armando Espinoza guilty of transportation of
methamphetamine (Health & Saf. Code, § 11379; counts twenty-three & twenty-six),
conspiracy to sell or transport methamphetamine (Pen. Code, § 182; Health & Saf. Code
§ 11379; count twenty-eight)1 and active participation in a criminal street gang (§ 186.22,
subd. (a); count thirty). The jury also found true allegations that defendant committed the
1 Undesignated statutory references are to the Penal Code.
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crimes to benefit a criminal street gang (§ 186.22, subd. (b)) and had two prior drug
convictions. (Health & Saf. Code, § 11370.2.) The trial court sentenced defendant to an
aggregate term of 17 years, including a consecutive term of eight months for active
participation in a criminal street gang.
On appeal, defendant argues the trial court should have stayed the sentence for
active participation in a criminal street gang pursuant to section 654. The People concede
the issue, and we accept the People’s concession. Accordingly, we will stay the sentence
for active participation in a criminal street gang and affirm the judgment as modified.
BACKGROUND
In 2010, the California Department of Justice (DOJ) launched an investigation
known as “Operation Crimson Tide,” focusing on the activities of Norteño gang members
in Sutter and Yuba Counties. During the course of their investigation, DOJ agents
identified John Pantoja as the leader of the Southside Tracy Norteños.
Operation Crimson Tide was followed by an investigation focusing on gang
activity in Tracy known as “Operation Gateway.” During the course of Operation
Gateway, DOJ agents wiretapped Pantoja’s phone and intercepted a number of calls
between Pantoja and defendant. Based on the content of these communications, DOJ
agents identified defendant as a person of interest and obtained authorization to place a
wiretap on his phone as well.
DOJ agents monitored defendant’s cell phone communications for several months.
During this time, DOJ agents intercepted telephone calls and text messages in which
defendant discussed drug sales with Pantoja and others. DOJ agents also intercepted
telephone calls and text messages in which defendant discussed other gang business with
Pantoja, including personnel problems and problems with law enforcement.
Defendant was placed under surveillance. He was observed making frequent trips
between San Leandro and Tracy, with multiple stops at different locations in Tracy.
2
Defendant’s contemporaneous telephone calls and text messages indicate that he was
delivering drugs to different people in Tracy.
On May 2, 2011, DOJ agents intercepted a telephone call from defendant to
Rodney Taylor, a suspected gang member in Tracy. Defendant and Taylor discussed
money that Taylor owed defendant for a previous drug deal and arranged to meet at a
nearby market so that defendant could deliver two “eight balls” (seven grams) of
methamphetamine. Officers from the Tracy Police Department immediately set up
surveillance at the market. They observed a car pulling up in front of the grocery store
with defendant in the passenger seat. They saw Taylor approach the passenger-side
window and exchange something with defendant. Defendant left the area, and police
officers detained Taylor. They found approximately seven grams of methamphetamine
on him, the equivalent of two “eight balls.”
On June 1, 2011, defendant received a call from his supplier. They discussed
money and arranged to meet. Defendant’s girlfriend, codefendant Natursia Cardoso,
drove defendant to a house in Modesto. Defendant went into the house while Cardoso
waited in the car. When defendant returned, Cardoso drove onto the freeway in the
direction of Tracy.
Officers from the Tracy Police Department pulled Cardoso over a short time later.
They searched the car and found a white plastic bag containing a crystalline substance in
Cardoso’s handbag. The substance was later determined to be 222 grams of
methamphetamine. While he was being handcuffed, defendant told the arresting officer,
“You know me. I’m a gang member. I shoved it in there.”
On July 15, 2011, a grand jury indicted defendant and 10 others on various drug
offenses. The indictment charged defendant with transporting and selling
methamphetamine (Health & Saf. Code, § 11379), conspiring to transport and sell
methamphetamine (§ 182; Health & Saf. Code, § 11379), and active participation in a
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criminal street gang (§ 186.22, subd. (a).)2 The indictment alleged that the crimes were
committed for the benefit of, at the direction of, and in association with a criminal street
gang. (§ 186.22, subd. (b)(1).) The indictment also alleged that defendant had two prior
drug convictions (Health & Saf. Code, § 11370.2), and served a prior prison term.
(§ 667.5, subd. (b).)
Defendant’s trial began in February 2014, after numerous continuances. During
the trial, a special agent with the DOJ’s Bureau of Narcotic Enforcement, Daniel Garbutt,
described the investigative techniques used in Operation Gateway and interpreted the
coded language used in defendant’s telephone communications and text messages. Agent
Garbutt also offered expert opinion testimony that defendant possessed and transported
drugs for sale, and conspired with others to sell drugs.
Agent Garbutt also testified that gang members “keep their girlfriends or
significant others in check,” meaning that they monitor their girlfriends’ or significant
others’ behavior to ensure they are not talking to law enforcement or otherwise
compromising gang business. Agent Garbutt explained that gang members sometimes
use violence to keep their girlfriends and significant others “in check.”
Another prosecution gang expert, Detective Michael Richards of the Tracy Police
Department’s Gang and Narcotics Enforcement Team, opined that defendant was a
member of the Southside Tracy Norteños, and committed the charged drug offenses for
the benefit of the gang.
Defendant’s girlfriend, Cardoso, testified that she drove defendant from San
Leandro to Tracy twice a week. In Tracy, Cardoso would drive defendant from house to
2 The indictment charged defendant with six counts of transporting and selling
methamphetamine, four of which were dismissed before trial. The indictment also
alleged a count for conspiracy to commit assault (§§ 182, 245) that was dismissed before
trial.
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house over a period of hours, making brief, 10-minute stops at each location. Cardoso
suspected that defendant was delivering drugs.
Cardoso also testified that defendant physically assaulted her many times, noting
three assaults that were particularly severe. On one occasion, defendant strangled
Cardoso with a shoestring. On another occasion, defendant strangled Cardoso with his
bare hands. On still another occasion, defendant beat Cardoso with closed fists to the
point where she nearly passed out. Cardoso also testified that defendant threatened to slit
her throat using a shard of glass from a broken windshield.
Following the close of evidence and closing arguments, the jury was instructed,
inter alia, that in order to convict defendant of active participation in a criminal street
gang, the prosecution would need to prove that: “the defendant actively participated in a
criminal street gang[,] [¶] . . . [w]hen the defendant participated in the gang, he knew
that members of the gang engaged in or have engaged in a pattern of criminal gang
activity . . . and [¶] . . . [t]he defendant willfully . . . assisted, furthered, or promoted
felonious criminal conduct by members of the gang, either by (A) directly and actively
committing a felony offense, or (B) aiding and abetting a felony offense.”
The jury was also instructed that, “[f]elonious criminal conduct means committing
or attempting to commit any of the following crimes: Transportation or Sale of a
Controlled Substance, in violation of Health and Safety Code [section] 11379; Possession
of a Controlled Substance for Sale, in violation of Health and Safety Code [section]
11378; or Conspiracy to Commit the Crime of Transportation for Sale of a Controlled
Substance, in violation of Penal Code [s]ection 182.” The jury was also instructed that
possession of a controlled substance for sale (Health & Saf. Code, § 11378) was a lesser
included offense to the charge of transportation or sale of a controlled substance. (Health
& Saf. Code, § 11379.) The jury was not instructed on assault by force likely to cause
great bodily injury (§ 245, subd. (a)(1)) or making criminal threats. (§ 422.)
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On March 6, 2014, the jury found defendant guilty of two counts of transporting
and selling methamphetamine (Health & Saf. Code, § 11379), one count of conspiring to
transport and sell methamphetamine (§ 182; Health & Saf. Code, § 11379), and one count
of active participation in a criminal street gang. (§ 186.22, subd. (a).) The jury also
found true all of the special allegations.
On May 9, 2014, defendant was sentenced to state prison for an aggregate term of
17 years, computed as follows: the upper term of four years for the first transportation of
methamphetamine conviction, plus four years for the gang enhancement and six years for
the prior drug convictions; a consecutive term of one year for the second transportation of
methamphetamine conviction, plus one year four months for the gang enhancement; and
a consecutive term of eight months for the active participation in a criminal street gang
conviction. The sentence for conspiracy to transport and sell methamphetamine was
stayed pursuant to section 654.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends, correctly, that his sentence for active participation in a
criminal street gang must be stayed because it is based upon the same acts as the other
offenses for which he was punished. The People concede the issue and we accept the
concession.
Section 654 provides in pertinent part: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” (§ 654, subd. (a).) “The purpose
of section 654 is to prevent multiple punishment for a single act or omission, even though
that act or omission violates more than one statute and thus constitutes more than one
crime. Although the distinct crimes may be charged in separate counts and may result in
multiple verdicts of guilt, the trial court may impose sentence for only one offense – the
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one carrying the highest punishment. [Citation.]” (People v. Liu (1996) 46 Cal. App. 4th
1119, 1135, fn. omitted.)
In People v. Mesa (2012) 54 Cal. 4th 191, 199 (Mesa), our Supreme Court held
that section 654 did not permit separate punishment for a section 186.22, subdivision (a)
crime of active participation in a criminal street gang when the only evidence of such
participation was the current charged offenses, even if there were multiple objectives.
(Mesa, at pp. 199-200.) This is because the crime of being an active participant in a
criminal street gang requires not only that the defendant be a member of the gang, but
that he also promote, further, or assist in the felonious conduct. (Id. at pp. 196-197.)
Thus, where the underlying felony is also the act “ ‘that transform[s] mere gang
membership – which, by itself, is not a crime – into the crime of gang participation,’ ”
section 654 bars multiple punishment for that single act. (Mesa, at pp. 197-198.)
In this case, defendant was charged with active participation in a criminal street
gang pursuant to section 186.22, subdivision (a). The evidence of defendant’s active
participation consisted almost entirely of evidence associated with the other charged
offenses (namely, transporting methamphetamine & conspiracy to transport
methamphetamine). However, there was also evidence that defendant assaulted and
threatened his girlfriend, Cardoso, as well as expert opinion evidence that gang members
rely on violence and threats of violence to “keep their girlfriends . . . in check,” thereby
protecting the gang against unwanted attention from law enforcement and others. Such
evidence may have supported a finding that defendant promoted or assisted felonious
criminal conduct by means other than the crimes for which he was convicted, had the jury
been so instructed. Because the jury was only instructed that “[f]elonious criminal
conduct” means committing or attempting to commit transportation or sale of a controlled
substance (Health & Saf. Code, § 11379), possession of a controlled substance for sale
(Health & Saf. Code, § 11378) or conspiracy to commit the crime of transportation and
sale of a controlled substance (§ 182; Health & Saf. Code, § 11379), the jury had no
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occasion to consider whether defendant’s other felonious criminal conduct was proved
beyond a reasonable doubt. On this record, we conclude, pursuant to Mesa, that the trial
court should have stayed the eight-month term for the active participation in a criminal
street gang conviction. (Mesa, supra, 54 Cal.4th at p. 199.)
DISPOSITION
The judgment is modified to reflect that the sentence imposed for defendant’s
conviction for active participation in a criminal street gang is stayed pursuant to section
654. As modified, the judgment is affirmed. The trial court is directed to send a certified
copy of the amended abstract of judgment to the Department of Corrections and
Rehabilitation.
/s/
Blease, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Renner, J.
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