Filed 1/24/01

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Stephen P. Gildner, Judge.

Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, W. Scott Thorpe and Garrick W. Chock, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant of carrying a loaded firearm while he was an active member of a criminal street gang (Pen. Code, § 12031, subd. (a)(2)(C)), and found he did so with the specific intent to promote or assist in criminal conduct by gang members within the meaning of section 186.22. In the published portion of this opinion, we hold the two-year enhancement imposed under section 186.22 violated the proscription of section 654 against double punishment.

By information, defendant was charged with unlawfully carrying a loaded firearm by an active member of a criminal street gang (count 1; § 12031, subd. (a)), unlawfully carrying a concealed firearm by an active member of a criminal street gang (count 2; § 12025, subd. (b)), unauthorized alteration of the serial number on a firearm (count 3; § 12090), possession of a firearm with an altered serial number (count 4; § 12094), and resisting a peace officer (count 5; § 148). It was alleged as to counts 1-3 that defendant committed the offenses with the specific intent to promote or assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1).

Defendant pled not guilty, denied the allegations, and a jury trial was set. At the start of trial the prosecution’s motion to dismiss counts 2-5 in the interest of justice was granted. The jury found defendant guilty as charged in count 1 and the allegation true.

Probation was denied, and defendant was sentenced to prison for total term of five years -- the upper term of three years on count 1, plus an enhancement of two years for the section 186.22 allegation.

Timely notice of appeal was filed.

At approximately 10:00 p.m. on July 14, 1998, Bakersfield Police Officers Sotello and Davis were in a marked patrol vehicle driven by Davis. While travelling southbound on Jastro Street, the officers observed four young Hispanic males walking north on the roadway of Jastro Street near the intersection of Cannon Street. This was a residential area in an unincorporated "pocket" of Kern County, and the incorporated City of Bakersfield surrounds it.

The officers illuminated the area with their spotlights and the vehicle’s lights on the light bar. The youths appeared to be under age and were violating the Vehicle Code by being pedestrians on the roadway. They were wearing gang attire and were about 20 feet south of Cannon Street. Significantly, one of the youths was wearing a white jersey with the blue number 13, which is a numeric designator for southern Hispanic gangs aligned with the Mexican Mafia. These gangs use the number 13 to identify each other, as opposed to northern gang members, who use the number 14. The person wearing the jersey, later identified as defendant, had the jersey out over his pants. As the officers continued to travel toward the youths at approximately 20 miles per hour, defendant, who was the closest to the curb, quickened his pace and put his hands underneath the front of his jersey. Defendant moved his hands underneath the jersey to his back at the waistline. He then shrugged his shoulders forward as though he was taking something out. This took about three seconds, and then he moved his hands forward again. Next, defendant took his hands out, stretched them out, and then returned them to his sides.

As the vehicle and the youths reached the intersection of Cannon Street, defendant continued to walk faster than the other three youths. Through his window, Officer Sotello shouted at them to stop. He then left the vehicle as defendant turned onto Cannon Street and continued walking at a quick pace. Sotello continued to ask defendant, who was 10-15 feet away, to stop. Defendant turned and looked at Sotello, and they made eye contact. Sotello walked quickly after defendant. Defendant turned and began to run westbound on Cannon. Sotello noticed defendant had a three-to-four-inch ponytail that went two inches below defendant’s shoulder line. Sotello stopped his chase after running a few feet, when defendant crossed a street on Cannon.

About three to five minutes later, after detaining and questioning the three other suspects, Sotello recovered a chrome semi-automatic .45 caliber handgun about 20 feet south of Cannon on Jastro. It was near the curb line, in the area where defendant’s unusual hand gestures had been observed, and north of where the youths were first seen walking. The hammer of the handgun was cocked, and the safety was on. The muzzle had wet mud on it from the pavement. There was one unexpended bullet in the firing chamber and five unexpended bullets in the magazine.

The three other suspects were handcuffed and interviewed, and a perimeter was set up. The three were identified as Johnny Acte, Gilbert Montiel and Alex Rodriguez. They were released about 30 minutes later. Acte had a "‘SUR’" tattoo on his left arm and the number "‘13’" on his right arm. Montiel had "‘Bakers’" tattooed in large letters on his abdomen. Rodriguez had no tattoos visible.

Officer John Hackney responded and was given a description of the suspect that ran away. He was told the suspect had been wearing a white Dallas Cowboys football jersey with a blue number 13 on it. Hackney contacted Wendy Acte, Johnny Acte’s sister, at the scene. Hackney asked her if she knew her brother’s friend who was wearing a football jersey. Wendy replied that a guy by the name of "Woody" was wearing a Dallas jersey. Hackney asked what Woody’s true name was, and she replied his name was "Marco." Upon inquiry, Hackney explained that Marco had possibly run from police and thrown a gun away. At this pointed Wendy refused to provide any further information.

About 35 minutes after the initial contact, and after Hackney briefed Officer Davis on his conversation with Wendy Acte, Davis saw a person talking to Wendy. The person generally fit the description of the person who had run, and Davis thought it might be him. Davis started walking in Wendy’s direction. He made eye contact with the person with whom Wendy was talking. That person then began walking quickly through an open field. Davis began to run after him, and the person also started to run. The suspect continued in a northwest direction onto McNew Court and went westbound. He then went into the housing projects at the west end of McNew Court. As Davis continued to chase, he briefly lost sight of the suspect due to a building. A second or two later, Davis saw him directly in front of that building. The suspect had a small calculator in his hands and was looking at it. Davis handcuffed him and identified him at trial as defendant. Officer Sotello arrived shortly after and told Davis defendant was the person with the white jersey that had initially run away.

Defendant had numerous tattoos, including "‘Okie’" on one forearm and "‘Bakers’" on the other. The letters "‘O.K.B.S.’" were on his chest as well as "‘Woody’" and "‘Malditos.’" His hands and fingers had the letters "‘O.B.’" and "‘SUR 13.’" Defendant told Davis he was a former member of the Okie Bakers gang when he was young, but he did not "‘bang anymore.’" The calculator defendant had in his possession when arrested also had gang symbols similar to those on defendant’s body written on the back of it. However, he told Davis he had just found the calculator.

Officer Cottle from the Special Operations Bureau Gang Unit testified as an expert in Hispanic turf gangs in Bakersfield. He identified defendant as an active member of the Okie street gang who goes by the street name of "Woody." The area of Jastro and Cannon Streets is the heart of the gang territory for Okie Bakers. The gang’s chief rivals are the "Loma Bakers" and the "Varrio Bakers," street gangs whose territories are north of the Okie gang’s territory. Members of the Okie gang have been involved in murder, car thefts, armed robbery, assaults with deadly weapons, and intimidation of witnesses.

On July 12, 1997, a self-admitted member of the Okie gang shot two members of the rival Loma gang, killing one of them. The shooting resulted after two Loma gang members walked by some Okie gang members and engaged in verbal taunting. Witnesses stated defendant was among the Okie gang members present during the taunts, and also had initiated the fight with the murder victim just before he was killed. According to Cottle, the killing in that case helped to further the reputation of the Okie gang as being a very violent gang.

On October 31, 1997, Okie gang members were involved in another murder when gang members were denied entry to a housing authority party for neighborhood volunteers. Defendant’s brother, Cervando Lozano, drove by the party location in a stolen car, and Victor Leon fired seven to ten shots from the car, killing 16-year-old Ricardo Carreo. Just prior to the shooting, someone from the car yelled, "‘Okie Bakers, fools.’" According to Cottle, this killing also enhanced the Okie gang’s reputation for violence.

Officer Cottle also opined that assuming defendant was carrying the loaded handgun when the police initially contacted him, he did so in furtherance of the Okie Bakers street gang’s criminal conduct and violence.

Defense

Johnny Acte testified he lived on Cannon Street near Jastro. He used to hang around with defendant about two years prior to trial. On the evening in question, Acte was with Popsy and "some other dude." Defendant was not with them. A fourth person who he did not know was walking behind them in a white shirt, and caught up to them. This person began running when the police put their lights on them. Acte did not see or hear a gun hit the ground. Acte admitted being a former member of the Okie Bakers when he was younger, which is when he got his gang tattoos.

Defendant contends there is insufficient evidence to support his conviction for a violation of section 12031. Section 12031, subdivision (a)(1) provides:

"‘Prohibited area’" means any place where it is unlawful to discharge a weapon." (CALJIC No. 16.470 (1997 Revision).)

Defendant argues that while the evidence established the gun was found in an area of unincorporated territory, no evidence showed this was a prohibited area of unincorporated territory. Therefore, he concludes the evidence was insufficient to establish a violation of section 12031. On November 22, 1999, the People filed a motion for judicial notice of Kern County Ordinance Code sections 9.20.010 and 9.20.110 and a survey map, pursuant to Evidence Code sections 452 and 459. On November 24, 1999, we deferred ruling on the request pending consideration of the appeal on the merits. Defendant has filed no opposition to the motion, which "may be deemed a consent to the granting of such motion." (Calif. Rules of Court, rule 41(c).) We grant the motion, and reject defendant’s insufficiency of the evidence contention.

Defendant was walking on a public street in a residential area near the intersection of Jastro and Cannon Streets in Kern County when he dropped a loaded handgun as police officers approached with their lights trained on him. Officer Davis testified the intersection is in an unincorporated pocket surrounded by the incorporated areas of the City of Bakersfield. Officer Sotello testified the area was residential and not occupied by business or agricultural enterprises. Kern County Ordinance Code section 9.20.110 lists the areas that are within the "Greater Bakersfield Area." Included within this area is the northeast quarter of section 29, Township 30 South, Range 28 East, MDB&M to the southeast corner of the northwest quarter of Section 5. A public survey map of this area establishes that the area of Jastro and Cannon is located within the Greater Bakersfield Area. Finally, Kern County Ordinance Code section 9.20.010 provides that the Greater Bakersfield Area is a restricted area for discharge of deadly and dangerous weapons.

Defendant does not dispute that the area in which he possessed the loaded firearm is a prohibited area of unincorporated territory. He merely argues the evidence did not establish it. (See People v. Vega (1971) 18 Cal.App.3d 954, 957-958, fn. 2.) Contrary to defendant’s contention, substantial evidence supports his conviction.

Defendant contends the prosecutor engaged in a pattern of misconduct during closing argument that denied him a fair trial. We disagree.

A. The law

"Improper remarks by a prosecutor can ‘"so infect[] the trial with unfairness as to make the resulting conviction a denial of due process."’ [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 969.) "But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."’" (People v. Espinosa (1992) 3 Cal.4th 806, 820; People v. Price (1991) 1 Cal.4th 324, 447.) The ultimate question is whether it is reasonably probable that a result more favorable to the defendant would have occurred had the prosecutor refrained from misconduct. (E.g., People v. Marshall (1996) 13 Cal.4th 799, 831.)

"‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 820.) One exception to this rule excuses a defendant from "the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.]" (Ibid.) "[In addition,] the absence of a request for a curative admonition does not forfeit the issue for appeal, ‘if the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’ [Citations.]" (People v. Hill, supra, 17 Cal.4th at p. 820-821.)

Finally, to prevail on a claim of prosecutorial misconduct based on remarks to the jury, defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. (People v. Berryman (1993) 6 Cal.4th 1048, 1072, disapproved on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823.) In conducting this inquiry, "we do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. (People v. Howard (1992) 1 Cal.4th 1132, 1192.)

B. Analysis

In his argument to the jury, defense counsel began by asserting what he called "technical defenses." For example, he argued there was no evidence presented that the unexpended bullets in the gun had a powder charge so they would fire. He also contended there was no evidence the unincorporated area where the gun was found was a "prohibited area." Defense counsel then stated:

In his closing argument, the prosecutor responded, and defense counsel objected, as follows:

Defendant claims the prosecutor’s argument was an attempt to lower the burden of proof beyond a reasonable doubt. We disagree with defendant and agree with the trial court that no error occurred. The prosecutor was merely responding to defense counsel’s suggestion that the jury should speculate about other possible common sense defenses with no evidence to support them. The prosecutor’s argument was a proper rebuttal that the jury should not speculate about other possible defenses having no basis in the evidence.

The next assignment of alleged prosecutorial misconduct was the prosecutor’s statement:

Again, no error appears. While the prosecutor did not accurately quote defense counsel’s statements, he did accurately summarize that defense counsel had no cross-examination questions of Officer Cottle, who opined defendant was a gang member, and that the defense was not challenging defendant’s gang membership. Thus, the objection was properly overruled.

Finally, defendant complains for the first time on appeal about the prosecutor’s argument that:

As to the failure to object, defendant argues it would have been futile to do so in light of the court’s prior rulings. We agree. As with the other claims of prosecutorial misconduct, the court would have overruled it because the argument was not improper. Contrary to defendant’s position, the argument was not a misstatement of law or an attempt to lower his burden of proof. It was merely an accurate observation about an important piece of identification evidence -- Wendy’s statement that defendant was wearing the Dallas Cowboys jersey.

We rejected the same argument in People v. Light (1996) 44 Cal.App.4th 879. (Accord People v. Torres (1996) 43 Cal.App.4th 1073.) We noted in Light that the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, held that use of the term "abiding conviction" was the proper standard.

We conclude, therefore, the instruction given on reasonable doubt was correct.

Defendant also contends the court erred by twice instructing the jury pursuant to CALJIC No. 1.00. He argues that when considered in conjunction with the instructional deficiency of CALJIC No. 2.90, the jury instructions violated his right to due process. Specifically, he argues the instructions as a whole gave the jury a misleading and erroneous burden of proof in this case, and served to impermissibly lessen the constitutional requirement that the jury find defendant guilty beyond a reasonable doubt. We disagree.

Initially, we note our finding that giving CALJIC No. 2.90 was proper renders defendant's argument moot. Since we have concluded there was no instructional deficiency regarding CALJIC No. 2.90, there could be no enhanced detrimental or prejudicial impact from other instructions. However, even so, the court did not err in providing the jury CALJIC No. 1.00.

As defendant acknowledges, this same issue was before the court in People v. Wade (1995) 39 Cal.App.4th 1487. The defendant in Wade appealed from a conviction for second degree murder claiming various CALJIC instructions "lightened the prosecution's burden of proving guilt beyond a reasonable doubt …." (Id. at p. 1491.) Among the challenged instructions were CALJIC Nos. 1.00, 2.01, and 2.51. The defendant claimed these instructions confused "not guilty" with "innocent." (Ibid.)

The relevant portion of CALJIC No. 1.00 provided by the court was as follows:

Defendant complains this instruction was misleading and confusing because it impermissibly lessened the prosecutor’s burden to prove the case beyond a reasonable doubt.

As the court indicated in Wade, "[a] reasonable juror would understand this instruction as an advisement to disregard the facts that defendant had been arrested, charged, and brought to trial, and to presume the defendant innocent." (People v. Wade, supra, 39 Cal.App.4th at p. 1492.) Similar to the defendant in Wade, defendant here overlooks the many other instructions the jury was given with respect to the necessary burden of proof.

The jury was read CALJIC No. 2.90, which indicated, in relevant part, "A defendant in a criminal action is presumed to be innocent until the contrary is proved .… This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt." The jury was then instructed on the definition of reasonable doubt. The court also gave a special instruction on the section 186.22 allegation, which stated, in part that "[i]n order to prove the allegation, the following must be proved beyond a reasonable doubt .…" Prior to providing instructions regarding lesser offenses, the court instructed, "If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless convict him of a lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of such lesser crime." Additionally, the jury was told, as part of CALJIC No. 1.01, to "[c]onsider the instructions as a whole and each in light of all the others."

Based on the instructions provided the jury as a whole, we conclude the court did not err in giving CALJIC No. 1.00.

Defendant was convicted of illegal possession of a loaded firearm while an active participant in a criminal street gang and was sentenced to prison for the upper term of three years. His sentence was enhanced two years pursuant to section 186.22, subdivision (b), because in possessing the gun he did so with the specific intent of promoting or furthering criminal conduct by gang members. Defendant asserts the additional enhancement was a violation of the prohibition of double punishment in section 654 because he received a gang enhancement to an offense that was already punished more severely due to his active participation in a gang. We agree.

Section 12031 defines the crime of unlawful possession of a loaded firearm. For the most part, this crime is punishable as a misdemeanor. In 1996, section 12031 was amended to make possession of a loaded firearm a felony under certain circumstances, including "[w]here the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act." (§ 12031, subd. (a)(2)(C), Stats. 1996, ch. 787 (Assem. Bill No. 632 (1995-1996 Reg. Sess.).)

The Street Terrorism Enforcement and Prevention Act, also known as the STEP Act, was enacted by the Legislature in 1988. (Pen. Code, § 186.20 et seq.) "Underlying the STEP Act was the Legislature’s recognition that ‘California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.’ (Pen. Code, § 186.21.) The act’s express purpose was ‘to seek the eradication of criminal activity by street gangs.’ [Citation.]" (People v. Gardeley, supra, 14 Cal.4th at p. 609.) Section 186.22 was enacted as part of that Act. Section 186.22, subdivision (b)(1) provides:

Both parties note that there is a split in authority on whether section 654 applies to enhancements. Although the Supreme Court has not directly resolved the issue of the applicability of section 654 to enhancements, the appellate court in People v. Arndt (1999) 76 Cal.App.4th 387 found that the Supreme Court’s analysis in People v. Coronado (1995) 12 Cal.4th 145 suggests "the applicability of section 654 depends on the nature of the enhancement at issue." (People v. Arndt, supra, at p. 395.) "Coronado held section 654 did not bar the use of a single prior felony drunk-driving conviction and resulting prison term to both elevate the defendant’s current drunk-driving conviction to a felony under Vehicle Code section 23175 and to enhance his sentence under Penal Code section 667.5." (Ibid.) The court in Coronado stated:

Although at first blush the enhancement here appears to be based on defendant’s status, a closer look demonstrates that it is in fact one based on defendant’s current acts or omissions. To be found guilty of section 12031 and section 186.22, subdivision (b), defendant must currently be acting as a gang member or in furtherance of the gang. The increase in punishment is not based on prior facts; it is based on defendant’s current actions in the commission of the offense. For example, a defendant may have been a gang member five years earlier but could not be convicted under these sections unless he were currently an active gang member. Further, such a defendant could not be subject to a section 186.22, subdivision (b) enhancement unless his current actions were done in furtherance of the criminal street gang. Thus, the crime and enhancement here are the types of circumstances where Coronado implied that section 654 should apply. (People v. Arndt, supra, 76 Cal.App.4th at pp. 395-396.)

Respondent argues that section 654 does not apply because the enhancement requires the specific intent to promote, further or assist in criminal conduct by gang members while section 12031, subdivision (a)(2)(C) does not. Respondent relies on our case of People v. Parrish (1985) 170 Cal.App.3d 336 for support. In Parrish, the defendant was convicted of assault by means of force likely to produce great bodily injury (§ 245). In addition, it was found that he inflicted great bodily injury (§ 12022.7). The defendant appealed, claiming he could not be punished for the great bodily injury enhancements. We noted, "[i]nfliction of great bodily injury is not an element of assault by means likely to produce great bodily injury." (170 Cal.App.3d at p. 343.) In addition, the enhancement required proof of the specific intent, which the underlying crime did not. (Id. at pp. 343-344.) We found the defendant could be separately punished for the great bodily injury enhancement.

Defendant acknowledges the distinction noted above in Parrish. He argues, however, that Parrish is inapplicable here because there are no such distinctions between the substantive offense defined by section 12031, subdivision (a)(2)(C) and the enhancement pursuant to section 186.22. The recent California Supreme Court decision in People v. Robles (2000) 23 Cal.4th 1106, which was decided after briefing was completed in this case, supports defendant’s position. In Robles, the court determined the Legislature’s intent in enacting section 12031, subdivision (a)(2)(C), which elevated the misdemeanor offense of carrying a loaded firearm to a felony when committed by "an active participant in a criminal street gang …." (23 Cal.4th at p. 1111.)

The Supreme Court stated:

The Supreme Court concluded that the phrase "as defined in subdivision (a) of Section 186.22" was susceptible of two interpretations and under well-established law chose the one more favorable to criminal defendants.

Under Robles, we conclude the punishment for the enhancement here was improperly imposed. Defendant’s conduct of having in his possession a loaded firearm while actively participating in and promoting felonious criminal conduct by members of his gang both elevated his offense to a felony and qualified his conduct for enhancement. He may be punished for violation of one statute but not both under the facts here. When the violation of a special statute (§ 12031, subd. (a)(2)(C)) will commonly result in a violation of a general statute (§ 186.22, subd. (b)(1)), the special statute controls. (People v. Coronado, supra, 12 Cal.4th at pp. 153-154.)

Because defendant could not be convicted of violating section 12031, subdivision (a)(2)(C) without also committing a violation of section 186.22, subdivision (b)(1), Parrish, supra, is distinguishable, and section 654 applies.

The judgment is modified by ordering the two-year enhancement stayed under section 654. The court shall prepare an amended abstract of judgment reflecting this modification, and forward it to the appropriate authorities. In all other respects, the judgment is affirmed.

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WISEMAN, J.

WE CONCUR:

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THAXTER, Acting P.J.

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HARRIS, J.