People v. Garcia ( 2014 )

Filed 3/12/14
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B243462
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA065680)
v.
JAIME GARCIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Shari
Silver, Judge. Reversed in part and affirmed in part as modified.
Edward Mahler, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell,
Supervising Deputy Attorney General, Thomas C. Hsieh, Deputy Attorney General, for
Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of BACKGROUND and DISCUSSION,
parts II-V.
INTRODUCTION
Defendant was convicted of attempted murder, various firearm offenses, and
participating in a gang. In the published portion of this opinion, we hold that even if the
trial court directed alternate jurors to be in the jury room during juror deliberations,
which is not at all clear, the judgment does not need to be reversed because there was no
showing that the alternate jurors participated in the deliberations or that there was any
other prejudice, presumed or otherwise.
BACKGROUND
During the period from January 2008 to about January 14, 2009, the Los Angeles
Police Department and various federal law enforcement agencies participated in a task
force investigating “the Mexican Mafia and their affiliated gangs and drug dealers in the
San Fernando Valley.” The task force targeted about 30 people, including defendant,
Jaime Garcia, who were suspected of narcotics activity and sales.
As part of its investigation, the task force obtained authorization to wiretap
defendant’s phone. Recordings of 12 of defendant’s phone calls, made between January
9 and 14, 2009, were played at trial. Some of the recorded phone calls were between
defendant and Daniella Fernandez, Jessica Torrez, Yvonne Echevarria, and Monique
Lopez in which defendant tried to learn the whereabouts of Luis Giron. In another phone
call, defendant asked Haley Higdon to bring him a handgun. Other recorded phone calls
were between defendant and Giron in which they argued about transactions between them
involving two vehicles, drugs, and jewelry.
Giron testified that about 3:45 p.m., on January 14, 2009, he was working on his
truck’s battery in the driveway of a house. Defendant and a woman pulled up in a silver
or gray Jaguar. Defendant got out of the car and approached Giron. Giron asked
defendant, “What’s up?” Defendant responded that he had been looking for Giron.
Defendant pulled a gun and placed it to Giron’s head, behind his ear. Giron moved his
head, causing the gun to lower to his neck. Defendant fired a single shot into Giron’s
2
neck. Defendant said, “This is what is going to happen to you, mother f-----.” Defendant
returned to his car and left. An ambulance took Giron to the hospital. Police officers
interviewed Giron at the hospital. Giron identified defendant from a six-pack
photographic lineup as the person who shot him.
About 3:45 p.m. on January 14, 2009, Los Angeles Police Department Officer
Adriana Munguia stopped a silver or gray Jaguar for speeding about a half a mile from
the scene of Giron’s shooting. Defendant was driving. Echeverria and defendant’s
girlfriend, Patty Luna, were in the car. Luna appeared to have blonde highlights. The car
was registered to defendant’s brother, Rolando Garcia. Officer Munguia was unaware of
the shooting and only issued defendant a warning.
Later that night, the police looked for defendant’s car because it matched the
description of the car used in a shooting. About 9:00 p.m., the police spotted defendant
driving a Jetta and stopped and presumably arrested him. Luna was seated in the front
passenger seat. The police searched the Jetta and found a blonde wig, two plastic baggies
that contained a “white crystalline substance resembling methamphetamine,” and a
Jaguar key.
Los Angeles Police Department Officer Cesar Flores testified as the prosecution’s
expert on the Brownstone Locos gang. According to Officer Flores, there were about 100
members of the Brownstone Locos gang. The gang’s primary activities were narcotics
sales, homicides, robberies, vandalism, possession of weapons, and burglaries. Officer
Flores testified that he spoke with defendant at defendant’s home on April 20, 2008.
Defendant provided Officer Flores with a history of the Brownstone Locos gang.
According to defendant, the Brownstone Locos gang was founded in the late 1980’s
when he, his brother Rolando, and about 12 other members of the Pacoima Van Nuys
Boys broke off to form a new gang. Officer Flores opined that in January 2009,
defendant was an active member of the Brownstone Locos and the gang’s sole
“shotcaller” or leader. Based on the wiretap recordings and his research, Officer Flores
believed that defendant was buying and selling controlled substances.
3
A jury convicted defendant of attempted willful, deliberate, and premeditated
murder (Pen. Code, §§ 664, subd. (a)/187, subd. (a)1), possession of a firearm by a felon
(§ 12021, subd. (a)(1)), assault with a firearm (§ 245, subd. (a)(2)), assault with a
semiautomatic firearm (§ 245, subd. (b)), and street terrorism (gang participation) (§
186.22, subd. (a)). The jury found true the allegations that in the commission of the
attempted murder, defendant and a principal personally used a firearm (§12022.53, subds.
(b) & (e)(1)), personally and intentionally discharged a firearm (§ 12022.53, subds. (c) &
(e)(1)), and personally and intentionally discharged a firearm causing great bodily injury
(§ 12022.53, subds. (d) & (e)(1)). The jury also found true gang enhancement allegations
within the meaning of section 186.22, subdivision (b)(1)(C) as to the attempted murder,
assault with a firearm, and assault with a semiautomatic firearm offenses, and within the
meaning of section 186.22, subdivision (b)(1)(A) as to the possession of a firearm by a
felon offense. As to the assault with a firearm and assault with a semiautomatic firearm
offenses, the jury found true the allegations that defendant personally used a firearm (§
12022.5) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). As to all
offenses, the trial court found true the allegations that defendant suffered four prior
convictions within the meaning of section 667.5, subdivision (b), one of which
convictions it struck; and one offense within the meaning of sections 667, subdivisions
(b) through (i) and 1170.12, subdivisions (a) through (d). The trial court further found
true the allegation as to the attempted murder and assault offenses that defendant suffered
a prior conviction within the meaning of section 667, subdivision (a)(1). The trial court
sentenced defendant to 71 years four months to life in state prison.
On appeal, defendant contends that the two alternate jurors improperly sat with the
jury during deliberations, which contention we discuss in the published portion of this
opinion. We discuss other contentions in the unpublished portion of this opinion and
reverse as to certain convictions, order the abstract of judgment modified, and otherwise
affirm the judgment. We reverse defendant’s convictions for assault with a firearm and
1 All statutory citations are to the Penal Code unless otherwise noted.
4
gang participation, and order the abstract of judgment modified to remove defendant’s
one year four month sentence for his gang participation conviction and to reflect a $40
court security fee and a $30 court building assessment on defendant’s assault with a
semiautomatic firearm conviction. We otherwise affirm the judgment.
DISCUSSION
I. Presence of the Alternate Jurors During Jury Deliberations
Defendant, who was convicted, inter alia, of attempted murder, contends that the
trial court committed reversible error when it directed the two alternate jurors2 to
accompany the seated jurors to the jury deliberation room.
A. Background
After instructing the seated and alternate jurors, the trial court stated, “In terms of
the two alternates, as soon as we finish right here, the bailiff . . . will explain to the
alternates and the other jurors how this works.” The bailiff then swore to take charge of
and keep together the jury, to not speak to the jury or allow anyone else to speak to it on
any subject connected to the case except by order of the trial court, and to return the jury
to the court when it reached a verdict. The bailiff further swore to “take charge of the
alternate jurors and keep them apart from the jury while they are deliberating on the
cause, until otherwise instructed by the court . . . .”
After the bailiff was sworn, the trial court asked him, “Do you want all of the
jurors to go in the deliberation—” The bailiff responded, “Yeah. All 14.” The trial court
said, “Okay. [¶] All 14 jurors, please go into the jury deliberation room. [¶] The
alternates, since you won’t be deliberating, just leave your documents on the seat. [¶]
Everybody, take your documents. You will be given the exhibits, the verdict forms, and
questions forms.” After the seated and alternate jurors left the courtroom, the trial court
2 Originally, there were four alternate jurors. By the time of jury deliberations, two
had been excused.
5
stated, “The record will reflect that all jurors, including the two alternates, have gone into
the exhibit [sic] room.” After the jury returned its verdicts, the trial court sent all the
jurors, including the alternate jurors, back to the jury deliberation room.
B. Relevant Legal Principles
Section 1089 provides, in part, “upon final submission of the case to the jury the
alternate jurors shall be kept in the custody of the sheriff or marshal and shall not be
discharged until the original jurors are discharged, except as hereinafter provided. [¶] If
at any time, whether before or after the final submission of the case to the jury, a juror
dies or becomes ill, or upon other good cause shown to the court is found to be unable to
perform his or her duty, or if a juror requests a discharge and good cause appears
therefor, the court may order the juror to be discharged and draw the name of an
alternate, who shall then take a place in the jury box, and be subject to the same rules and
regulations as though the alternate juror had been selected as one of the original jurors.”
There is no express statutory prohibition against alternate jurors being in the jury room
during deliberations. There has been, however, “[a] long-established policy, designed to
protect the independence of the jury, [to require] that they deliberate in secret, without
outside communication or observation . . . .” (7 Witkin, Cal. Procedure (5th ed. 2008)
Trial, § 320, p. 373; see People v. Bruneman (1935) 4 Cal. App. 2d 75, 78-80.)
In People v. Britton (1935) 4 Cal. 2d 622 (Britton), the California Supreme Court
addressed the propriety of an alternate juror’s presence in the jury room during
deliberations. The court in Britton approved the opinion in People v. Bruneman, supra, 4
Cal. App. 2d 75, a then recent Court of Appeal opinion, and, over the dissent of two
justices, adopted as its own the Court of Appeal’s opinion in Britton in pertinent part as
follows: “Appellants claim reversible error because when the jury retired to deliberate
the court directed that the alternate juror should retire to the juryroom with the jury, and
that this was error even though the court instructed such alternate juror that while she
might listen to the deliberations of the jury, she should not express any opinion or
participate by word or action in those deliberations. [¶] Subsequent to the appeal herein
6
this identical question was decided in People v. Bruneman[, supra,] 4 Cal.App.(2d) 75
[40 Pac.(2d) 891], and we agree with the conclusions therein stated, that the presence of
the alternate juror in the juryroom while the jury was deliberating upon its verdict was
reversible error.” (Britton, supra, 4 Cal.2d at p. 623, internal quotation marks omitted.)
Britton has been read to establish a rule of per se reversal when an alternate juror was
present with the regular jury during deliberations even when the trial court instructed the
alternate juror to not express any opinion or participate in the deliberations in any way.
(People v. Adame (1973) 36 Cal. App. 3d 402, 406.)
In People v. Valles (1979) 24 Cal. 3d 121 (Valles), a case decided by the California
Supreme Court, the defendant and the prosecutor stipulated that an alternate juror be
present during jury deliberations, but that the alternate was not to participate in the
deliberations in any way. (Id. at p. 123.) On appeal, the defendant did not argue that the
alternate disobeyed the trial court’s instruction by participating in the deliberations.
(Ibid.) Instead, the defendant argued that the “alternate’s mere presence in the jury room
during deliberations constituted reversible error.” (Ibid.) The court concluded that “the
presence of alternates in the jury room during deliberations is not necessarily detrimental
to a defendant’s right of trial by jury and that defense counsel may stipulate to such
procedure.” (Id. at p. 125.) The court held that the stipulation estopped defendant from
obtaining a reversal based on the presence of the alternate in the jury room during jury
deliberations. (Id. at p. 123.) The court stated, “The alternate should, of course, be
instructed that he is not to participate in the jury’s deliberations in any manner except by
silent attention unless he is required by the court to take the place of an original juror. If
this instruction is disobeyed, the standard rule concerning juror misconduct applies,
namely, that it is presumed prejudicial to the defendant unless the contrary appears.
[Citation.]” (Id. at p. 128, italics added.)
As stated in Brassfield v. Moreland School Dist. (2006) 141 Cal. App. 4th 67, 72,
(Brassfield) “[t]he dissent in Valles conceded that the error was not reversible per se, but
argued that the issue was viable notwithstanding counsel’s stipulation, the presumption of
prejudice had not been rebutted, and reversal was therefore required. (People v. Valles,
7
supra, 24 Cal.3d at pp. 131-132 (dis. opn. of Mosk, J.).)” The court referred to People v.
Oliver (1987) 196 Cal. App. 3d 423 in which a court reporter was improperly in the jury
room during deliberations and in which the court “noted that Valles had implicitly
accepted the premise that such error was not reversible per se, . . . and . . . applied a
harmless error standard of review.” (Brassfield, supra, 141 Cal.App.4th at p. 72.) The
court in Brassfield then said that it “reject[ed] Brassfield’s contention that the simple
presence of an alternate in the jury room during deliberations is reversible per se.” (Ibid.)
The court concluded that such an error is “properly analyzed as a species of jury
misconduct to which a presumption of prejudice applies and which does not merit
reversal if the error is shown to have caused no prejudice.” (Ibid.) The court stated, “as
there was no claim that the alternate had disobeyed the court’s instruction, there was no
basis for a claim of juror misconduct.” (Brassfield, supra, 141 Cal.App.4th at p. 72,
citing Valles, supra, 24 Cal.3d at p. 123.)
The court’s conclusion in Valles, supra, 24 Cal. 3d 121 that the “presence of
alternates in the jury room during deliberations is not necessarily detrimental to a
defendant’s right to trial by jury” is consistent with the United States Supreme Court’s
later opinion in United States v. Olano (1993) 507 U.S. 725 (Olano) in which the
Supreme Court reversed a finding that the presence of alternate jurors during jury
deliberations violated Federal Rule of Criminal Procedure 24(c) (rule 24(c)) and was
reversible per se under the “plain error” standard of Federal Rule of Criminal Procedure
52(b). In Olano, the Supreme Court held that the presence of alternate jurors during jury
deliberations violated rule 24(c), but that such an error was not the kind that affects a
defendant’s substantial rights independent of its prejudicial impact, the respondents had
not made a showing of prejudice, and there was no reason to presume prejudice. (Olano,
supra, 507 U.S. at p. 737.) The Supreme Court stated, “Although the presence of
alternate jurors does contravene ‘“the cardinal principle that the deliberations of the jury
shall remain private and secret,”’ [citation], the primary if not exclusive purpose of jury
privacy and secrecy is to protect the jury’s deliberations from improper influence. ‘If no
harm resulted from this intrusion [of an alternate juror into the jury room,] reversal would
8
be pointless.’ [Citation.] We generally have analyzed outside intrusions upon the jury
for prejudicial impact. [Citations.]” (Id. at pp. 737-738.)
C. Analysis
Respondent argues that the record does not demonstrate that the two alternate
jurors were present in the jury room during jury deliberations. That the alternate jurors
were sent back with the seated jurors does not mean that they entered the jury room itself
and stayed there. Moreover, that there was no objection by defense counsel suggests that
the alternates were not present.3
Even if the alternate jurors were present in the jury room during deliberations,
defendant has failed to demonstrate prejudice because the record does not show
misconduct by either alternate juror from which prejudice may be presumed. If the
alternate jurors were present in the jury room during deliberations, it was because they
obeyed the trial court’s directive, as they were required to do. (§ 1089 [“they shall obey
the orders of and be bound by the admonitions of the court, upon each adjournment of the
court . . .”].) Thus, there was no juror misconduct that would result in a rebuttable
presumption of prejudice from the alternates being with the seated jurors during
deliberations.
Because, as established by the authorities, an alternate juror’s presence during jury
deliberations is not necessarily detrimental to a defendant’s right of trial by jury, there
would be juror misconduct and presumed prejudice if the trial court instructed the
alternate juror not to participate in deliberations and the alternate juror disobeyed the
instruction. (Valles, supra, 24 Cal.3d at pp. 125, 128.) The trial court instructed the
alternate jurors not to participate in deliberations. In addition, after instructing the seated
jurors, the trial court instructed the alternate jurors, “[Y]ou are still bound by the
admonition that you are not to converse among yourselves or with anyone else on any
3 Respondent does not contend that defendant has forfeited the issue by his failure
to object.
9
subject connected with this trial, or to form or express any opinion until the case is
submitted to you, which means until such time as you are substituted in for one of the
twelve jurors who will begin deliberating on the case tomorrow morning. This also
means that you are not to decide how you would vote if you were deliberating with the
other jurors.”
To the extent the trial court sent the deliberating and alternate jurors to the jury
room, the trial court told the alternate jurors, “[S]ince you won’t be deliberating, just
leave your documents on the seat.” There is no indication in the record that either of the
alternate jurors disobeyed the trial court’s instructions and participated in jury
deliberations in any manner. Defendant has failed to demonstrate that the alternates
engaged in any misconduct or that their presence during jury deliberations, if that
occurred, caused him prejudice—presumed or actual. Thus, any presence of the
alternates jurors during jury deliberations is not a basis for reversal.
II. Defendant’s Assault with a Firearm Conviction
Defendant was convicted of assault with a firearm (§ 245, subd. (a)(2)) and assault
with a semiautomatic firearm (§ 245, subd. (b)) based on the same firearm discharge—
i.e., the single gunshot fired into Giron’s neck. Defendant contends that his conviction
for assault with a firearm must be reversed because assault with a firearm is a lesser
included offense of assault with a semiautomatic firearm. Respondent agrees as do we.
“A semiautomatic firearm assault cannot be committed without also committing a
firearm assault. Therefore, firearm assault is a lesser included offense of a semiautomatic
firearm assault. [Citations.] A defendant cannot be convicted of both an offense and a
lesser included offense. [Citations.]” (People v. Martinez (2012) 208 Cal. App. 4th 197,
199.) Because defendant’s assault with a firearm offense was a lesser included offense of
assault with a semiautomatic firearm, his assault with a firearm conviction is reversed.
(Ibid.)
10
III. Defendant’s Sentence Enhancements on His Assault with a Semiautomatic
Firearm Conviction
Defendant argues that the trial court improperly imposed on his assault with a
semiautomatic firearm conviction 10-, four-, and three-year terms respectively for the
gang (§ 186.22, subd. (b)(1)(C)), personal use of a firearm (§ 12022.5), and personal
infliction of great bodily injury (§ 12022.7) enhancements.4 Instead, defendant argues,
the trial court was permitted, under section 1170.1, subdivisions (f) and (g), only to
impose the 10-year gang enhancement and either the four-year personal use of a firearm
enhancement or the three-year personal infliction of great bodily injury enhancement.
The trial court properly sentenced defendant.
Assault with a semiautomatic firearm is a serious but not violent felony. (§§
1192.7, subd. (c)(31), 667.5, subd. (c).) The gang enhancement for assault with a
semiautomatic firearm is five years. (§ 186.22, subdivision (b)(1)(B).) When personal
use of a firearm (§ 12022.5) or personal infliction of great bodily injury (§ 12022.7)
allegations are found true with respect to a conviction for assault with a semiautomatic
firearm, the assault offense becomes a violent felony (§ 667, subd. (c)(8)) and the
punishment for an accompanying gang enhancement is elevated to 10 years (§ 186.22,
subd. (b)(1)(C)).
Section 1170.1, subdivisions (f) and (g) provide:
“(f) When two or more enhancements may be imposed for being armed with or
using a dangerous or deadly weapon or a firearm in the commission of a single offense,
only the greatest of those enhancements shall be imposed for that offense. This
subdivision shall not limit the imposition of any other enhancements applicable to that
offense, including an enhancement for the infliction of great bodily injury.
4 Defendant makes the same claim with respect to his assault with a firearm
conviction. Because we have reversed that conviction, we do not need to address
defendant’s sentencing argument as to that conviction.
11
“(g) When two or more enhancements may be imposed for the infliction of great
bodily injury on the same victim in the commission of a single offense, only the greatest
of those enhancements shall be imposed for that offense. This subdivision shall not limit
the imposition of any other enhancements applicable to that offense, including an
enhancement for being armed with or using a dangerous or deadly weapon or a firearm.”
Because the trial court used either defendant’s personal use of a firearm or
personal infliction of great bodily injury to elevate the gang enhancement from five to 10
years, defendant contends, section 1170.1, subdivisions (f) and (g) prevented the trial
court from also imposing sentence on the enhancement used to elevate the gang
enhancement term—i.e., if the trial court elevated the gang enhancement term based on
defendant’s personal use of a firearm, the trial court could not impose the four-year term
for that enhancement in addition to imposing the 10-year gang enhancement. In People
v. Vega (2013) 214 Cal. App. 4th 1387, we recently considered and rejected defendant’s
contention.
In People v. Vega, supra, 214 Cal. App. 4th 1387, the defendant was convicted of
attempted voluntary manslaughter, and the jury found true the allegations that the
defendant committed the offense for the benefit of a gang (§ 186.22, subd. (b)(1)(C)), that
he personally used a firearm (§ 12022.5, subd. (a)), and that he personally inflicted great
bodily injury (§ 12022.7, subd. (a)). The trial court imposed the 10-year gang
enhancement and the four-year personal use of a firearm enhancement and stayed the
three-year personal infliction of great bodily injury enhancement. (People v. Vega,
supra, 214 Cal.App.4th at p. 1393.) We held that imposition of the four-year personal
use of a firearm enhancement was permitted because the jury also found true the personal
infliction of great bodily injury allegation which, by itself, elevated the attempted
voluntary manslaughter offense to a violent felony. (Id. at p. 1395.) We further held that
the trial court could not have imposed and left unstayed the three-year personal infliction
of great bodily injury enhancement without violating subdivision (g) of section 1170.1.
(Ibid.)
12
In this case, the trial court imposed and stayed, under section 654, defendant’s
sentences for the substantive offense of assault with a semiautomatic firearm and each of
the accompanying enhancements. Because the trial court stayed the sentence on
defendant’s personal infliction of great bodily injury enhancement, defendant’s sentence
complied with People v. Vega, supra, 214 Cal. App. 4th 1387.
IV. Defendant’s Street Gang Participation Conviction
Defendant contends that insufficient evidence supports his gang participation
conviction (§ 186.22, subd. (a)5), the trial court gave an erroneous instruction on that
offense, and the trial court erred in failing to stay his 16-month consecutive sentence on
that offense under section 654. We reverse defendant’s gang participation conviction
because it is not supported by sufficient evidence.6
“‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Avila (2009) 46
Cal. 4th 680, 701.) “We must presume in support of the judgment the existence of every
fact that the trier of fact could reasonably deduce from the evidence. [Citation.]”
(People v. Medina (2009) 46 Cal. 4th 913, 919.) “A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis whatever is there sufficient
5 Section 186.22, subdivision (a) provides: “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.”
6 Because we reverse defendant’s gang participation conviction for lack of sufficient
evidence, we do not need to address defendant’s alternative arguments.
13
substantial evidence to support”’ the jury’s verdict. [Citation.]” (People v. Zamudio
(2008) 43 Cal. 4th 327, 357.) “Substantial evidence includes circumstantial evidence and
the reasonable inferences flowing therefrom.” (People v. Ugalino (2009) 174
Cal. App. 4th 1060, 1064.) “We ‘must accept logical inferences that the jury might have
drawn from the circumstantial evidence. [Citation.]’ [Citation].” (People v. Zamudio,
supra, 43 Cal.4th at pp. 357-358.) “The standard of review is the same when the
prosecution relies mainly on circumstantial evidence.” (People v. Valdez (2004) 32
Cal. 4th 73, 104.)
“The elements of the gang participation offense in section 186.22(a) are: First,
active participation in a criminal street gang, in the sense of participation that is more
than nominal or passive; second, knowledge that the gang’s members engage in or have
engaged in a pattern of criminal gang activity; and third, the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.
[Citation.]” (People v. Rodriguez (2012) 55 Cal. 4th 1125, 1130 (Rodriguez).)7 The
phrase “that gang” in section 186.22, subdivision (a) “refers back to the gang in which
the defendant is an active participant.” (Id. at p. 1131.) “[T]o satisfy the third element, a
defendant must willfully advance, encourage, contribute to, or help members of his gang
commit felonious criminal conduct. The plain meaning of section 186.22(a) requires that
felonious criminal conduct be committed by at least two gang members, one of whom
can include the defendant if he is a gang member. (See § 186.22, subd. (i).)” (Id. at p.
1132.) Thus, the third element is not satisfied when a gang member commits a felony
when acting alone. (Id. at pp. 1131-1132.)
Here, the trial court instructed the jury that the “felonious criminal conduct” that
defendant was alleged to have promoted, furthered, or assisted was possession for sale of
a controlled substance, assault with a firearm, and attempted murder. There is
insufficient evidence to support defendant’s conviction for violating section 186.22,
subdivision (a), because there is no evidence that defendant promoted, furthered, or
7 Rodriguez was decided shortly after the trial in this case.
14
assisted another Brownstone Locos member in the possession of a controlled substance
for purposes of sales, in the assault of Giron with a firearm, or in the attempted murder of
Giron. (Rodriguez, supra, 55 Cal.4th at pp. 1131-1132.)
Respondent concedes that “there was no direct evidence that any of the persons
who helped [defendant] in shooting Giron or whom [defendant] cooperated with in drugs
sales were members of [defendant]’s gang, Brownstone Locos,” but argues,
“[n]evertheless, there was sufficient circumstantial evidence from which a juror could
reasonably conclude that [defendant] actively participated in the Brownstone gang and
willfully promoted, furthered and assisted the possession of sale of controlled substances
by and with members of his own gang.” Respondent does not argue that there is
circumstantial evidence that a Brownstone Locos member other than defendant
participated in Giron’s shooting.
With respect to possession of a controlled substance for purposes of sales,
respondent argues that the circumstantial evidence showed that defendant discussed with
and collaborated in the sale of drugs with members of other gangs, and a reasonable
inference from such discussions and collaborations was that defendant and those
members of other gangs “were not merely assisting each other individually, but also the
members of each other’s gangs in such conduct.” Respondent’s argument fails for a
number of reasons.
First, the prosecution had to prove that defendant promoted, furthered, or assisted
another Brownstone Locos gang member in committing a specific felony.8 (Rodriguez,
8 In her rebuttal closing argument to the jury, the prosecutor incorrectly argued to
the jury that the prosecution did not have to show that defendant promoted, furthered, or
assisted another Brownstone Locos gang member in a felony to prove the gang
participation offense. The prosecutor argued, “And when counsel talks about count 5,
and, oh, he doesn’t know anyone other than Brown—it doesn’t say ‘Brownstone.’ It says
if you help to further, promote—by committing a crime, help to further, promote your
gang, doesn’t mean that all the crimes have to be committed with other people from you
gang. It could be other gang members that he is working with.” As noted above, the
California Supreme Court decided this issue after the trial in this case was over.
(Rodriguez, supra, 55 Cal.4th at p. 1131.)
15
supra, 55 Cal.4th at pp. 1131-1132; People v. Castenada (2000) 23 Cal. 4th 743, 749.)
Evidence that defendant assisted a member of another gang in the commission of a felony
is not evidence that defendant assisted a member of his own gang in the commission of
the same felony. Second, the trial court instructed the jury that it could find defendant
guilty of the gang participation offense based on his “possession for sale of a controlled
substance,” not based on his “sale of a controlled substance.” Possession of a controlled
substance for purposes of sales and sale of a controlled substance are different and
separate offenses. (See People v. Murphy (2005) 134 Cal. App. 4th 1504, 1508
[possession for sale of a controlled substance is not a lesser included offense of sale of a
controlled substance because possession is not an essential element of the sales offense,
e.g., “one can broker a sale of a controlled substance that is within the exclusive
possession of another”], disapproved on another ground in People v. Reed (2006) 38
Cal. 4th 1224, 1228; but see People v. Rosales (1964) 226 Cal. App. 2d 588, 592 [“Since
every sale includes possession, the crime of illegal possession of narcotics is therefore a
necessarily included offense in the offense of sale of narcotics”].) Thus, evidence
concerning defendant’s participation in drug sales did not support the gang participation
charge based on possession of a controlled substance for purposes of sales.
Third, there is no evidence that the substance defendant possessed was a
controlled substance, and there is no evidence that defendant possessed the substance for
purposes of sales. The only evidence related to defendant’s possession of a controlled
substance came from a police officer who participated in the search of the car defendant
was driving when he was stopped and, presumably, arrested. That officer testified that he
recovered from the car two baggies that contained a “while crystalline substance
resembling methamphetamine.” The prosecution did not present evidence that the
substance recovered from the car was methamphetamine, or evidence that the amount or
packaging of the substance suggested that the substance was possessed for purposes of
sales. Accordingly, there was no circumstantial evidence that defendant promoted,
furthered, or assisted another Brownstone Locos member in the possession of a
controlled substance for purposes of sales.
16
Although respondent concedes that there is no direct evidence that any
Brownstone Locos member other than defendant participated in Giron’s assault or
attempted murder, and does not argue that there was circumstantial evidence that any
member of the Brownstone Locos participated in those crimes, we note that there was an
attenuated connection between another Brownstone Locos member—defendant’s
brother—and those crimes. Defendant drove his brother’s car to Giron’s shooting. Such
evidence, however, is insufficient to establish that defendant’s brother participated in
Giron’s shooting as an aider an abettor—and thus that a second Brownstone Locos gang
member participated in the assault and attempted murder—because no evidence was
presented that even suggests that defendant’s brother provided the car to defendant, or
that if he did provide the car to defendant, he did so with the knowledge that defendant
was going to shoot Giron and with the intent or purpose of aiding Giron’s assault or
attempted murder. (People v. Cooper (1991) 53 Cal. 3d 1158, 1164 [“A person aids and
abets the commission of a crime when he or she, (i) with knowledge of the unlawful
purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating
or encouraging commission of the crime, (iii) by act or advice, aids, promotes,
encourages or instigates the commission of the crime”]; People v. Lee (2003) 31 Cal. 4th
613, 624 [“to be guilty of attempted murder as an aider and abettor, a person must give
aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with
the purpose of facilitating the direct perpetrator’s accomplishment of the intended
killing—which means that the person guilty of attempted murder as an aider and abettor
must intend to kill”].) Accordingly, the abstract of judgment is ordered modified to
delete defendant’s sentence of one year four months for his gang participation conviction.
V. Court Security Fee and Court Building Assessment
Respondent contends that the trial court erred in imposing a $40 court security fee
(§ 1465.8, subd. (a)(1)) and a $30 court building assessment (Gov. Code, § 70373) on
only three of defendant’s convictions (attempted murder, possession of a firearm by a
felon, and gang participation) rather than all five counts. Having conceded that
17
defendant’s assault with a firearm conviction should be reversed and thus the court
security fee and court building assessment need not be imposed on that conviction,
respondent contends that the trial court also should have imposed the court security fee
and court building assessment on defendant’s assault with a semiautomatic firearm
conviction. Defendant does not dispute respondent’s contention. We agree that the trial
court failed to impose the proper security fees and assessments.
The court security fee (§ 1465.8, subd. (a)(1)) and court building assessment (Gov.
Code, § 70373, subd. (a)(1)) must be imposed on every count. Accordingly, the abstract
of judgment is ordered modified to reflect a $40 court security fee and a $30 court
building assessment on defendant’s assault with a semiautomatic firearm conviction.
18
DISPOSITION
Defendant’s convictions for assault with a firearm and gang participation are
reversed. The abstract of judgment is ordered modified to delete defendant’s one year
four month sentence for his gang participation conviction and to reflect a $40 court
security fee and a $30 court building assessment on defendant’s assault with a
semiautomatic firearm conviction. The judgment is otherwise affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
MOSK, J.
We concur:
TURNER, P. J.
MINK, J.
 Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
19