People v. Rice CA6

Filed 2/25/14 P. v. Rice CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039699
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS121526)
v.
MICHAEL JAMES RICE,
Defendant and Appellant.
INTRODUCTION
Defendant Michael James Rice pleaded no contest to possession of a firearm by a
felon (Pen. Code, § 29800, subd. (a)(1))1 and active participation in a criminal street gang
(§ 186.22, subd. (a)), and he admitted a prior felony conviction. The trial court imposed,
but suspended execution of a two-year prison sentence and placed defendant on probation
for three years. In March 2013, the trial court found defendant violated probation. The
court executed the previously suspended two-year prison sentence.
On appeal, defendant argues that the trial court erred in finding that he violated
probation by associating with known gang members. For the reasons stated below, we
will affirm.
1
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Offense and Sentence2
On August 8, 2012, Salinas police officers executed a search warrant on
defendant’s home. While driving to the home, the officers found defendant on a nearby
street drinking alcohol with two Norteño gang members. Defendant was wearing gang-
related clothing and accessories.
The officers transported defendant to his home, and the officers conducted a
search of the home. In defendant’s bedroom, the officers located gang paraphernalia and
ammunition. In other parts of the home, the officers found gang-related clothing and
accessories, ammunition, an unloaded gun magazine, and a loaded semi-automatic
weapon.
After the search, defendant’s mother told the officers that defendant was “known
to carry firearms because he is a Fremont Street Norteño gang member and has been
associating with the gang since the age of thirteen.” She also told the officers that
defendant was in a feud with ranking gang members.
Thereafter, the officers took defendant to the county jail, where he admitted he
was an active Norteño gang member and requested to be housed with active gang
members.
On August 21, 2012, defendant pleaded no contest to possessing a firearm by a
felon (§ 29800, subd. (a)(1)) and active participation in a criminal street gang (§ 186.22,
subd. (a)), and he admitted a prior conviction underlying the firearm offense.
The probation report included defendant’s statement that he began associating
with Northerner gang members, specifically the Fremont Street gang, at the age of 15.
On October 2, 2012, the court imposed a two-year prison sentence, but suspended
execution of that sentence. The court placed defendant on probation with various
2
The facts as to the underlying offense are based on the probation report.
2
conditions. One of defendant’s conditions provided, “Not associate with any individuals
you know, have reason to know, or are told by the Probation Officer to be gang members
. . . .” Another condition provided, “Totally abstain from the use of alcoholic beverages,
not purchase or possess alcoholic beverages, and stay out of places you know alcohol to
be the main item of sale.”
B. Probation Violation and Probation Revocation Hearing
On January 29, 2013, the probation officer filed a petition pursuant to section
1203.2 to revoke defendant’s probation. The petition alleged that defendant violated
probation by: (1) “[a]ssociating with gang members” and (2) “[k]nowingly possess[ing]
alcohol.”
On March 28, 2013, the trial court conducted a probation revocation hearing at
which Salinas Police Officer Derek Gibson testified on behalf of the prosecution. Gibson
testified that he was assigned to the Monterey County Gang Task Force for three years,
and he had specialized training and field experience in gang recognition and gang
investigations. He was familiar with the Fremont Street gang, which was a subset of the
Norteño gang. In the past, he had contacted and arrested several Fremont Street gang
members. In the two years prior, he had worked with several informants from the
Fremont Street gang. Gibson approximated that there were 30 active members in the
Fremont Street gang. He also stated that “[i]t’s rare, but it could be possible” for a gang
member to not know every other member of the gang.
Officer Gibson testified that on January 28, 2013, he was on duty on the 1400
block of Linwood Drive. He noticed a parked car containing three occupants. As the
officer stopped next to the car, the car accelerated from the curb. Gibson followed the car
and saw the backseat passenger throw what appeared to be a beer can out of the window.
Officer Gibson stopped the car and contacted the vehicle’s occupants. Defendant
was the backseat passenger. Gibson knew defendant because in the underlying
conviction, the officer had written the search warrant for defendant’s home. Based on
3
that prior arrest, Gibson knew that defendant was on probation and that defendant was an
active gang member in the Fremont Street gang.
Officer Gibson also recognized the front seat passenger, Efrain Perez, from prior
contacts and a prior case that other officers from his unit had handled. The officer knew
that Perez was a Fremont Street gang member and knew Perez was on probation.
Another officer conducted a search of Perez and recovered a red and white “Norcal”
beanie in Perez’s jacket pocket. Gibson associated the beanie with the Norteño street
gang.
Officer Gibson recognized the driver, Juan Lopez, after the officer had researched
Lopez’s name, nickname, and moniker. The officer noticed that Lopez had a gang-
related tattoo of the roman numerals “XIV” on the web of his left hand. Gibson believed
that Lopez was an active Fremont Street gang member based on the prior documentation
by officers, who have contacted Lopez in the past, and on Lopez’s prior admission of his
Fremont Street gang membership.
During the investigation, Officer Gibson learned that Perez and Lopez both lived
at a residence on the 1400 block of Linwood Drive and that all three individuals were
coming from the residence before they were stopped. Gibson went to the Linwood
residence to conduct a probation compliance check on Perez’s bedroom. During the
compliance check, the officer saw a large quantity of Norteño gang-related tagging inside
a bedroom belonging to a female resident.
Based on Officer Gibson’s investigations with the gang task force, he was aware
that the Fremont Street gang typically congregated in the 500 and 600 blocks of Fremont
Street, around Madeira, Terrace, and Carr Street. Lopez’s previous residence on Terrace
Street was a common place where Fremont Street gang members congregate and drink
alcohol in the front yard. In the underlying offense, Gibson detained defendant around
Lopez’s Terrace Street residence before the execution of the search warrant.
4
Following the testimony, defense counsel argued that there was no proof that the
Fremont Street gang or the Norteño gang were criminal street gangs, as there was no
evidence that there were “three or more members . . . associating for the primary purpose
of committing specified crimes.” Additionally, defense counsel argued there was
insufficient evidence to support that Lopez and Perez were active gang members, nor was
there evidence that defendant knew that Lopez and Perez were active gang members.
On rebuttal, the prosecution pointed out that in the arrest that led to the underlying
conviction, defendant was around Lopez’s residence on Terrace Street. This area was
known as a place where Fremont Street gang members congregate. The prosecution
argued that based on that prior contact with Lopez, the trial court could reasonably
conclude that defendant knew Lopez was a member of the same gang organization.
Additionally, the prosecution noted that prior to being stopped by Officer Gibson,
defendant was with Lopez and Perez at the Linwood residence, where there was gang
indicia inside. Lastly, the prosecution asserted that Gibson, who had training and
experience in gang investigations, indicated that the Fremont Street gang was a criminal
street gang.
The trial court found “based on the evidence that was submitted and applying . . .
some common sense,” defendant violated probation on the grounds that he knowingly
associated with gang members and that he knowingly possessed alcohol.
At sentencing on May 14, 2013, the trial court imposed the previously suspended
prison sentence of two years.
DISCUSSION
Defendant contends that the trial court erred in finding that he violated probation
by knowingly associating with other gang members. He argues that there was
insufficient evidence that the Fremont Street gang or the Norteño gang were criminal
street gangs, and there was insufficient evidence that he knew Perez and Lopez were
gang members. Defendant also contends that even though the trial court also found a
5
violation of the alcohol condition, reversal is warranted to determine whether the court
would have revoked probation solely based on the alcohol violation.
Section 1203.2, subdivision (a), authorizes the trial court to revoke probation after
proper notice and a hearing “if the interests of justice so require and the court, in its
judgment, has reason to believe from the report of the probation or parole officer or
otherwise that the person has violated any of the conditions of his or her supervision, has
become abandoned to improper associates or a vicious life, or has subsequently
committed other offenses, regardless whether he or she has been prosecuted for such
offenses.” Once a court had determined that a violation of probation has occurred, it
must “decide whether under all of the circumstances the violation of probation warrants
revocation.” (People v. Avery (1986) 179 Cal.App.3d 1198, 1204.)
The trial court is vested with broad discretion in determining whether to reinstate
probation following revocation of probation (People v. Jones (1990) 224 Cal.App.3d
1309, 1315), and the trial court’s decision to revoke probation is reviewed for an abuse of
discretion. (People v. Rodriguez (1990) 51 Cal.3d 437, 443 (Rodriguez); People v.
Downey (2000) 82 Cal.App.4th 899, 909-910.) “ ‘[O]nly in a very extreme case should
an appellate court interfere with the discretion of the trial court in the matter of denying
or revoking probation. . . .’ ” (Rodriguez, supra, at p. 443.) However, “the facts
supporting a revocation of probation must be proven by a preponderance of the
evidence.” (Id. at p. 439.) Also, “the evidence must support a conclusion [that] the
probationer’s conduct constituted a willful violation of the terms and conditions of
probation.” (People v. Galvan (2007) 155 Cal.App.4th 978, 982; People v. Zaring (1992)
8 Cal.App.4th 362, 378-379.)
Applying this deferential standard of review, we conclude that the trial court did
not err in finding defendant violated probation. One of defendant’s probation conditions
prohibited him from associating with any individuals he knew, or had reason to know to
be a gang member. Nevertheless, defendant, who was an admitted Fremont Street gang
6
member, was in a vehicle with Perez and Lopez, who were also Fremont Street gang
members. At the probation revocation hearing, Officer Gibson testified that he knew
Perez was a Fremont Street gang member based on previous personal contacts. The
officer also knew that Lopez was a Fremont Street gang member based on prior
documentation by officers who have contacted Lopez in the past and Lopez’s admitted
gang membership.
There was also sufficient evidence that defendant knew Perez and Lopez were
gang members. Officer Gibson testified that the Fremont Street gang had about 30 active
gang members and that “[i]t’s rare, but it could be possible” that a Fremont Street gang
member not know every other member of the gang. Additionally, in the underlying
offense, defendant was detained around Lopez’s Terrace Street residence before the
search of defendant’s home. The area around Lopez’s Terrace Street residence was
known as a place where the Fremont Street gang typically congregate. Based on this
evidence, the trial court could have reasonably inferred that defendant had known Lopez
before defendant violated probation and that defendant knew Lopez was a fellow
Fremont Street gang member. Moreover, on the day of the probation violation, defendant
was coming from the Linwood Drive residence, where Perez and Lopez were residing.
Inside the Linwood residence, there was visible gang-related tagging in one of the rooms.
Lopez also had a “XIV” tattoo on the web of his hand, and Perez had a red and white
“Norcal” beanie in his possession. As a Fremont Street gang member, defendant would
have likely recognized the tagging inside the residence, Lopez’s tattoo, and Perez’s
beanie were associated to the Norteño gang. Therefore, based on a preponderance of
evidence, the trial court could have reasonably concluded that defendant knowingly
associated with gang members.
7
We reject defendant’s claim there was insufficient evidence that the Fremont
Street gang or the Norteño gang fell within the statutory definition of “criminal street
gang.” (§ 186.22, subd. (f).)3 In this case, one of defendant’s underlying convictions was
for active participation in a criminal street gang (id., subd. (a)). A conviction for active
participation in a criminal street gang requires that the gang in question falls within the
statutory definition of a “criminal street gang.” (See Id., subds. (a) & (f).) In the
underlying offense, defendant admitted he was a Fremont Street Norteño gang member,
and there was no indication that he was involved with any other gang. Thus, when
defendant was convicted for a violation of section 186.22, subdivision (a), it was implied
that the Fremont Street gang met the statutory definition of a “criminal street gang” (id.,
subd. (f)).
Furthermore, Officer Gibson, who was on the Monterey County Gang Task Force
for three years and had training and experience in gang investigations and gang
recognition, indicated that the Fremont Street gang was a criminal street gang. He
testified that he was familiar with the Fremont Street gang through personally contacting
several of its members and working with some informants. In addition, he had arrested
several Fremont Street gang members in the past. Throughout his testimony, Gibson also
discussed gang indicia (i.e., clothing, tagging, and tattoos) that were associated with the
Fremont Street gang.
Although Officer Gibson did not expressly testify that the Fremont Street gang’s
primary activities were one of the specified crimes as set forth in section 186.22,
3
Section 186.22, subdivision (f) states: “As used in this chapter, ‘criminal street
gang’ means any ongoing organization, association, or group of three or more persons,
whether formal or informal, having as one of its primary activities the commission of one
or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to
(33), inclusive, of subdivision (e), having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in or have engaged in a
pattern of criminal gang activity.”
8
subdivision (f) or that the members engaged in a pattern of criminal activity, his
testimony was sufficient for the purposes of the probation revocation hearing. (Cf.
Lucido v. Superior Court (1990) 51 Cal.3d 335, 348 [observing that the “limited nature of
[the] inquiry [at a probation revocation hearing] may not involve or invoke presentation
of all evidence bearing on the underlying factual allegations”].) The relevant question on
appeal is not whether the prosecution presented sufficient evidence to establish beyond a
reasonable doubt that the Fremont Street gang is a “criminal street gang,” as would be
required to sustain a criminal conviction or to support a gang allegation. (Contra, In re
Alexander L. (2007) 149 Cal.App.4th 605.) Rather, the question is whether there was
sufficient evidence presented at the probation revocation hearing to support a finding, by
a preponderance of the evidence, that the Fremont Street gang was a criminal street gang.
We believe that for the purposes of a probation revocation hearing, Gibson’s testimony
was sufficient to support a finding that the Fremont Street gang was a criminal street
gang.
Accordingly, the trial court did not err in revoking defendant’s probation as there
was sufficient evidence to support a finding that defendant knowingly associated with
gang members.4
DISPOSITION
The judgment is affirmed.
4
Because we determine that the trial court properly revoked probation based on
defendant’s violation of the gang condition, we need not determine whether the court
could have revoked probation solely on the violation of the alcohol condition.
9
Premo, J.
WE CONCUR:
Rushing, P.J.
Márquez, J.
10