P. v. Calvo CA4/3

Filed 5/31/13 P. v. Calvo CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G047191
v. (Super. Ct. No. 11CF2057)
ROBERTO MARIN CALVO, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Dan
McNerney, Judge. Reversed in part and affirmed in part.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina,
Melissa Mandel, and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and
Respondent.
Roberto Marin Calvo appeals from a judgment after a jury convicted him of
possession of cocaine base for sale and street terrorism, and found true he committed the
former offense for the benefit of a criminal street gang. Calvo argues insufficient
evidence supports his convictions and the jury‟s finding on the street terrorism
enhancement. The Attorney General agrees that because Calvo acted alone, he could not
be convicted of street terrorism. We reverse his conviction for street terrorism and affirm
the judgment in all other respects.
FACTS
Officers Jason Bruns and John Rodriguez were on patrol in a marked patrol
car in a high-crime Santa Ana neighborhood claimed by the Townsend Street criminal
street gang. Based on their prior experience, the officers knew the area was where
Townsend Street gang members sold drugs, including crack cocaine. While on patrol, the
officers saw several men, including one man later identified as Calvo, standing on
Townsend Street. When Calvo saw the marked patrol car, he ran into an apartment
complex courtyard. Bruns got out of his car and chased Calvo, but Bruns lost sight of
Calvo when he entered the alley. Bruns entered a courtyard and saw Calvo crouched
down behind a concrete wall; Bruns could see Calvo had tattoos on his head, including a
“T,” one of the symbols of the Townsend Street criminal street gang.
As Bruns walked around the wall, Calvo again fled. Bruns yelled for Calvo
to stop and identified himself as a police officer but Calvo continued fleeing. As Calvo
ran, he dropped something and dove onto the sidewalk in front of Rodriguez. Bruns and
Rodriguez approached Calvo, put their knees on his back, and handcuffed him. Bruns
recovered the item Calvo had discarded. The contraband, which Bruns believed to be
crack cocaine, was in the shape of a wafer and slightly larger than a quarter. Back at the
police station, Bruns tested the substance and determined it to be .5 grams of cocaine.
Calvo had $45, two $20 bills and one $5 bill in his pocket. Calvo did not possess any
2
drug paraphernalia and did not appear to be under the influence of narcotics. Later,
forensic testing established the substance was .468 grams of cocaine.
An information charged Calvo with possession for sale of cocaine base
(Health & Saf. Code, § 11351.5) (count 1), and street terrorism (Pen. Code, § 186.22,
subd. (a)) (count 2). The information alleged Calvo committed count 1 for the benefit of
a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). Finally, the information
alleged he was convicted of a serious and violent felony (Pen. Code, §§ 667, subds. (d),
(e)(1), 1170.12, subds. (b), (c)(1)), he was convicted of a serious felony (Pen. Code,
§ 667, subd. (a)(1)), and he served two prior prison terms (Pen. Code, § 667.5, subd. (b)).
At trial, Bruns testified concerning the events as described above. He also
testified regarding whether Calvo possessed the drugs for the purpose of sale or for
personal use. Additionally, Bruns testified concerning his background, training, and
experience in narcotics and criminal street gang investigations. Bruns explained
Townsend Street gang members are well known for selling crack cocaine through
hand-to-hand exchanges of drugs for cash. He stated crack cocaine is sold by breaking
off small pieces from a larger piece, or selling already broken pieces, so weighing
equipment is unnecessary and the crack cocaine is not packaged separately. He also said
drug dealers are usually found carrying money in small denominations. Pursuant to the
prosecutor‟s request, Bruns examined the exhibit envelope containing the contraband.
Bruns stated the crack cocaine had broken into about six pieces and each piece would sell
for approximately $10. Bruns estimated that depending on the user there could be
anywhere between 15 to 50 “hits” or uses in the cocaine. Bruns opined Calvo possessed
the cocaine for sale based on the following: (1) the amount of cocaine in his possession;
(2) the fact he possessed $45 in small denominations; (3) where Calvo was arrested; and
(4) the fact he did not possess any paraphernalia to ingest the drug.
Rodriguez also testified on the issue of Calvo‟s intent for possessing the
cocaine. Rodriguez also testified regarding his background, training, and experience in
3
narcotics investigations. Rodriguez also opined Calvo possessed the cocaine for purposes
of sale.
The prosecutor also offered the testimony of a gang expert, Officer
Dominick Padilla. After detailing his background, training, and experience, Padilla
testified concerning the culture and habits of traditional, turf-oriented Hispanic criminal
street gangs. Padilla stated Hispanic gangs must support the Mexican Mafia to operate in
Orange and Los Angeles counties. He explained the Mexican Mafia controls gang
movement on the streets and if a Hispanic gang does not obey the rules, the Mexican
Mafia will retaliate against the gang. He said Hispanic gangs must pay taxes to the
Mexican Mafia, often times from the proceeds of the sale of narcotics. He also said
Hispanic gangs use the proceeds from narcotics sales to purchase guns. He explained
gang members establish their reputations by using the guns to commit violent crimes and
by discussing the crimes they commit with other gang members. He said tattoos are an
important part of gang culture because it is a permanent, nonverbal method of claiming a
gang.
Padilla testified concerning the Townsend Street gang. He described its
historical development, the number of members (60), its color (navy blue), the sports
team garb it wears (the Minnesota Twins), its symbols (“C.T.R.” and “T”), and its
primary activities (narcotics sales and weapons violations). He also testified concerning
the statutorily required predicate offenses, including one where a known Townsend Street
gang member was convicted of possessing cocaine base and heroin for the purpose of
sale. He said the charged offenses occurred in Townsend Street territory. He explained
non-gang members who live in the neighborhood can sell narcotics in Townsend Street
claimed territory if they pay taxes. He stated non-gang members sell drugs on Friday
evenings and Saturday afternoons and Townsend Street gang members during all other
times.
4
Padilla also testified he conducted a background investigation of Calvo.
Padilla said he reviewed the police report of the incident and Street Terrorism
Enforcement and Prevention Act (STEP)1 notices law enforcement officers issued to
Calvo. Padilla stated that in January 2007, police officers contacted Calvo, who was in
Townsend Street claimed territory with other known Townsend Street gang members and
was wearing gang attire. He also stated that three months later, officers contacted Calvo
in Townsend Street claimed territory wearing gang attire and possessing narcotics; Calvo
admitted to officers he was a Townsend Street gang member and his moniker was
“Menace.” Finally, Padilla said that in January 2010 police officers again contacted
Calvo who again admitted his gang membership and his moniker. Padilla opined that
Calvo got the tattoo of the “T” on his head sometime after February 2010, because that
tattoo was not documented at the time of the last contact.
Padilla testified concerning the sale of narcotics in Townsend Street
claimed territory. Padilla said Townsend Street gang members and non-gang members
who pay taxes can sell drugs in the claimed territory. Padilla described a schedule where
gang members sell narcotics on some days and non-gang members sell narcotics on other
days. Based on his investigation of this case and of Calvo, Padilla opined that at the time
of the charged offenses Calvo was an active participant in the Townsend Street criminal
street gang.
Calvo did not testify at trial. He did, however, offer testimony that officers
used unnecessary force when they arrested him, caused him severe injuries, and lied at
trial about how he suffered his injuries.
1 Padilla explained a STEP notice is a document a police officer uses to
record a contact with a possible gang member. The STEP notice includes the details of
the contact and the person‟s physical characteristics. The STEP document also notifies
the person that the gang the person is affiliating with is a criminal street gang and notifies
the recipient the gang commits certain crimes.
5
The jury convicted Calvo of both counts and found true the street terrorism
allegation. After the trial court found true the prior conviction allegations and denied
Calvo‟s motion to strike his prior “strike” conviction, the court sentenced Calvo to
11 years in prison: double the low term of six years on count 1 and five years on his prior
serious felony conviction. Pursuant to section 654, the court imposed and stayed a
concurrent two-year term on count 2. The court imposed and struck the sentences on the
street terrorism enhancement as to count 1, and the remaining prior convictions.
DISCUSSION
“In considering a challenge to the sufficiency of the evidence . . . , [the
appellate court] review[s] 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.] [It] presume[s] every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact‟s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] „A reviewing court neither
reweighs evidence nor reevaluates a witness‟s credibility.‟ [Citation.]” (People v.
Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
Possession of Cocaine Base for Sale
Calvo argues insufficient evidence supports his conviction for possession of
cocaine base for sale. We disagree.
Unlawful possession of a controlled substance for sale requires proof that
the defendant possessed the substance with the intent to sell, and with knowledge of its
presence and its illegal character. (People v. Harris (2000) 83 Cal.App.4th 371, 374
(Harris).) “Intent to sell may be established by circumstantial evidence.” (Ibid.) “„In
cases involving possession of [drugs], experienced officers may give their opinion that
6
the narcotics are held for purposes of sale based upon such matters as the quantity,
packaging and normal use of an individual; on the basis of such testimony convictions of
possession for purpose of sale have been upheld. [Citations.]‟ [Citation.]” (Harris,
supra, 83 Cal.App.4th at pp. 374-375.)
Here, the record includes sufficient circumstantial evidence from which the
jury could reasonably conclude Calvo possessed the cocaine for the purpose of sale. The
evidence at trial established the following: In addition to Calvo admitting he was a
Townsend Street gang member, Calvo had the gang‟s symbol tattooed on his head, and
officers saw him wearing the gang‟s uniform. Townsend Street gang members were
known to sell narcotics in their claimed territory; one of Calvo‟s confederates was
convicted of possession of narcotics for sale. When officers spied Calvo, he was in
Townsend Street claimed territory. When Calvo saw the marked patrol car, he fled and
tried to discard the narcotics.
With respect to the contraband, it is true it was not a large amount, a wafer
approximately the size of a quarter that weighed about one half of a gram. But as we
state above, convictions for sale are regularly found sufficient on the basis of expert
opinion after considering a myriad of factors. (Harris, supra, 83 Cal.App.4th at p. 375;
People v. Parra (1999) 70 Cal.App.4th 222, 225.) Bruns opined Calvo possessed the
crack cocaine for sale based on the following facts: Calvo possessed an amount of crack
cocaine that was worth approximately $60 and could be used for anywhere between
15 to 50 uses depending on the user. Bruns‟s evaluation of the value and the number of
uses provided the jury with credible evidence Calvo did not possess the crack cocaine for
personal use. Additionally, Bruns found it significant Calvo had two $20 bills and one
$5 bill as drug dealers usually carry money in small denominations. Even if we were to
conclude a $20 bill is not a bill of small denomination, Bruns‟s testimony provided the
jury with evidence from which it could conclude Calvo carried money to make change
during any hand-to-hand sales of narcotics. Finally, Calvo did not possess any
7
paraphernalia to ingest the drug when he was arrested. Based on this fact, and the fact he
appeared to be sober, the jury could reasonably conclude Calvo possessed the narcotics
for purposes of sale and not for personal use.
Calvo relies on a number of cases to argue the amount of crack cocaine he
possessed was de minimus (People v. Austin (1994) 23 Cal.App.4th 1596, overruled on
other grounds in People v. Palmer (2001) 24 Cal.4th 856; People v. Shipstead (1971)
19 Cal.App.3d 58; People v. Velasquez (1970) 3 Cal.App.3d 776 (Velasquez)), he did not
have any weighing equipment or packing materials (People v. Langley (1974)
41 Cal.App.3d 339; People v. Aguilar (1965) 232 Cal.App.2d 173, overruled on other
grounds in Lorenzana v. Superior Court (1973) 9 Cal.3d 626), and there were no
potential buyers at the scene (Velasquez, supra, 3 Cal.App.3d 776). Calvo‟s reliance on
these cases is misplaced.
First, as we explain above, Bruns‟s expert opinion provided the jury with
evidence from which it could reasonably conclude the amount of crack cocaine Calvo
possessed exceeded what one would carry for personal use. Having heard Bruns‟s expert
testimony that Calvo intended to sell the crack cocaine, it was for the jury to credit such
opinion testimony or reject it. (Harris, supra, 83 Cal.App.4th at p. 375.) Second, Bruns
explained that because of its brittle nature, Calvo could easily break off a piece of the
narcotic and thus no weighing or packaging materials were required. Finally, that
officers did not see Calvo engage in a hand-to-hand transaction does not mean he did not
intend to sell the narcotics. Moreover, there were other men standing with Calvo, but he
fled when he saw the marked patrol car. Thus, based on the entire record, we conclude
Bruns‟s expert testimony on narcotics sales and criminal street gangs provided sufficient
evidence for the jury to convict Calvo of possession of cocaine base for sale.
8
Street Terrorism
Substantive Offense
Calvo contends he could not be convicted of street terrorism because he
acted alone. The Attorney General concedes the issue, although she does point out the
evidence supports the conclusion Calvo acted with other Townsend Street gang members,
and it is the prosecutor‟s theory of the case and the jury instructions that compel its
concession. Based on People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), we agree
that Calvo, who acted alone, could not be convicted of committing street terrorism.
The street terrorism substantive offense, section 186.22, subdivision (a),
states: “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 . . . in the state prison for 16 months, or two or three
years.” There are three elements to the substantive street terrorism offense: (1) active
participation in a criminal street gang; (2) knowledge the gang‟s members have engaged
in a pattern of criminal gang activity; and (3) willfully promoting, furthering, or assisting
in any felonious criminal conduct by members of the gang. (Albillar, supra, 51 Cal.4th at
p. 56.)
In Rodriguez, supra, 55 Cal.4th at page 1128, defendant acted alone in
committing an attempted robbery. A jury convicted him of attempted robbery and active
participation in a criminal street gang under section 186.22, subdivision (a). (Rodriguez,
supra, 55 Cal.4th at p. 1129.) The issue in Rodriguez, like the issue Calvo raises here,
was whether the third element of the crime described in section 186.22,
subdivision (a)—willfully promoting, furthering, or assisting in any felonious criminal
conduct by members of the defendant‟s gang—can be satisfied by felonious criminal
conduct committed by the defendant acting alone. (Rodriguez, supra, 55 Cal.4th at
9
p. 1129.) The court held that it does not, and expressly disapproved of prior cases to the
extent they are inconsistent with Rodriguez. (Id. at p. 1137, fn. 8.)
The Rodriguez court began by analyzing the statute according to its “„plain,
commonsense meaning . . . .‟” (Rodriguez, supra, 55 Cal.4th at p. 1131.) The felonious
criminal conduct referred to in the statute must be committed “„by members of that
gang.‟” (Rodriguez, supra, 55 Cal.4th at p. 1131.) The word “„[m]embers,‟” the court
explained, is a plural noun. (Id. at p. 1132.) Therefore, the court reasoned “[t]he plain
meaning of section 186.22[, subdivision] (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. [Citation.]” (Ibid.) Because the defendant acted alone, he did not
violate section 186.22, subdivision (a). (Rodriguez, supra, 55 Cal.4th at p. 1139.)
Rodriguez controls the outcome of the issue here. Because the evidence at
trial supports the conclusion Calvo acted alone in committing his crimes—the only
crimes the prosecution relied on to support the third element of the gang participation
count—there is insufficient evidence to support the conviction on that count.
Accordingly, we will reverse the conviction on count 2.
Enhancement
Calvo contends insufficient evidence supports the jury‟s finding he
committed count 1 for the benefit of a criminal street gang. Not so.
“[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).
In Albillar, supra, 51 Cal.4th at page 60, the California Supreme Court
explained that although not every crime committed by gang members is related to a gang
10
for purposes of the first prong, a crime can satisfy the first prong when it is committed in
association with the gang, or when it is committed for the benefit of the gang. The
Albillar court also explained the second prong, which requires the defendant commit the
gang-related felony “with the specific intent to promote, further, or assist in any criminal
conduct by gang members” (§ 186.22, subd. (b)(1)), need not encompass proof the
defendant committed the crime with the specific intent to promote, further, or assist other
criminal conduct by gang members. Instead, that subdivision “encompasses the specific
intent to promote, further, or assist in any criminal conduct by gang members—including
the current offenses—and not merely other criminal conduct by gang members.”
(Albillar, supra, 51 Cal.4th at p. 65.) The Albillar court stated a gang expert‟s opinion is
admissible as part of the evidentiary showing on how the crimes can benefit the gang.
(Id. at p. 63.)
Here, sufficient evidence supports the jury‟s finding Calvo committed
count 1 for the benefit of Townsend Street. There was certainly evidence from which the
jury could conclude that at the time of the offenses, Calvo was an active participant in
Townsend Street. Law enforcement officers had prior contacts with Calvo where he
associated with known Townsend Street gang members and wore Townsend Street
colors. On two of those occasions he admitted to being a member of Townsend Street
and having a gang moniker. On one of those occasions he possessed narcotics. Finally,
Calvo had tattooed on his head one of the Townsend Street gang symbols, a “T.”
More importantly, Bruns testified the offenses occurred in Townsend Street
claimed territory, and Townsend Street was known for selling narcotics. Additionally,
Calvo was arrested on a Tuesday, a day according to Bruns that only Townsend Street
gang members can sell narcotics in Townsend Street claimed territory. Bruns opined
drug dealers sell narcotics to pay taxes to the Mexican Mafia and to purchase guns to
commit violent crimes, which enhances the gang member‟s and gang‟s reputation in the
community. From this evidence the jury could certainly conclude Calvo, a Townsend
11
Street gang member, was selling narcotics for the benefit of Townsend Street, and with
the specific intent to promote criminal conduct.
Calvo relies on In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.),
People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa), People v. Ramon (2009)
175 Cal.App.4th 843 (Ramon), and In re Frank S. (2006) 141 Cal.App.4th 1192(Frank S.), to argue there was no evidence he committed count 1 with the specific intent
to benefit Townsend Street. His reliance on these cases is misplaced.
In Daniel C., supra, 195 Cal.App.4th at page 1353, a grocery store manager
saw three young men enter the store on a surveillance camera. After two of the men left,
minor selected a bottle of liquor. The manager left the security office and positioned
himself near the exit door of the store. Minor walked to the front of the store and through
a check stand carrying the bottle. When the manager approached minor and said, “„Give
me the bottle,‟” minor struck him with the bottle. (Ibid.) Minor ran out the entrance door
and to a truck, which then drove off. (Id. at p. 1354.) During an interview with police,
minor indicated his friends did not know he intended to take alcohol without paying for
it. (Ibid.) The court of appeal concluded there was insufficient evidence to support the
street gang enhancement because there was no evidence minor acted in concert with his
companions and there was no evidence he claimed gang membership. (Id. at pp. 1359,
1361.)
Here, as we explain above, there was substantial evidence that at the time of
the offense Calvo was an active participant in Townsend Street and that while in
Townsend Street claimed territory, he was engaged in one of Townsend Street‟s primary
activities, selling narcotics. As to Calvo‟s assertion he did not claim gang membership
during the offense, of course he did. Until he visits “Dr. TATTOFF” laser tattoo removal
or decides to stop shaving his head, he openly and continuously claims his Townsend
Street gang membership as he has one of Townsend Street‟s symbols tattooed on the top
of his head.
12
In Ochoa, supra, 179 Cal.App.4th at page 662, the court of appeal reversed
a gang enhancement finding when defendant did not wear gang clothing, display gang
signs or call out a gang name while committing a crime. There was no testimony the
crime was committed in gang territory, and defendant was not in the company of any
fellow gang members. (Ibid.) The court found no evidentiary support for the gang
expert‟s testimony the crime might benefit defendant‟s gang. (Ibid.) In contrast, the
offense here was committed in Townsend Street claimed territory, and although there was
no evidence Calvo was with other Townsend Street gang members, he was flying the
gang‟s symbol, on the top of his head.
In Ramon, supra, 175 Cal.App.4th 843, defendant was convicted of, among
other things, receiving a stolen vehicle and possession of a firearm by a felon. The court
found the evidence the perpetrators were gang members and the crime was committed in
the gang‟s territory was insufficient to support the gang enhancement. (Id. at p. 852.)
The court noted its analysis might be different if the expert‟s opinion had included
possessing stolen vehicles as one of the gang‟s activities. (Id. at p. 853.) Here, Bruns
testified one of Townsend Street‟s primary activities was narcotics sales.
In Frank S., supra, 141 Cal.App.4th 1192, there was insufficient evidence
to support a gang enhancement on a finding minor carried a concealed dirk or dagger
where the prosecution “did not present any evidence that the minor was in gang territory,
had gang members with him, or had any reason to expect to use the knife in a
gang-related offense.” (Id. at p. 1199.) Here, by contrast, Calvo, a Townsend Street gang
member was in Townsend Street claimed territory, and there was evidence from which
the jury could reasonably conclude he intended to sell the narcotics he possessed, one of
Townsend Street‟s primary activities. Thus, the jury‟s finding Calvo committed count 1
for the benefit of a criminal street gang is supported by substantial evidence.
13
DISPOSITION
We reverse Calvo‟s conviction for street terrorism. We affirm the
judgment in all other respects. We direct the clerk of the superior court to prepare an
amended abstract of judgment and forward it to the Department of Corrections and
Rehabilitation, Division of Adult Operations
O‟LEARY, P. J.
WE CONCUR:
MOORE, J.
THOMPSON, J.
14