Opinion
B221673
08-04-2011
THE PEOPLE, Plaintiff and Respondent, v. MYRICK ALFRED, Defendant and Appellant.
Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Deputy Attorney General, Paul M. Roadarmel, Jr., and Robert C. Schneider, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA356209)
APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara Johnson, Judge. Affirmed.
Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Deputy Attorney General, Paul M. Roadarmel, Jr., and Robert C. Schneider, Deputy Attorneys General for Plaintiff and Respondent.
Defendant and appellant, Myrick Alfred (defendant), appeals from his judgment of conviction of possession of narcotics for sale. He contends that substantial evidence did not support the conviction or the finding that the crime was gang related. He also contends that the evidence was insufficient to establish that the Bloodstone Villain (BSV) gang was a criminal street gang. Finally, defendant requests a review of the trial court's discovery orders made pursuant to defendant's "Pitchess motion." We reject defendant's contentions, and find no abuse of discretion. We affirm the judgment.
See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess);Penal Code sections 832.7 and 832.8; Evidence Code sections 1043 through 1045.
BACKGROUND
1. Procedural Background
Defendant and his codefendant, Charles Dejun Gant (Gant), were charged in count 1 with possession for sale of cocaine base, in violation of Health and Safety Code section 11351.5. Gant, who is not a party to this appeal, was charged in count 2 with being a felon in possession of a firearm, in violation of Penal Code section 12021, subdivision (a). The information alleged, pursuant to section 186.22, subdivision (b)(1)(A), that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang.
All further statutory references are to the Penal Code unless otherwise indicated.
The information further alleged that defendant had been convicted of two prior strikes (§§ 1170.12, subds. (a)-(d) and 667, subds (b)-(i)), robbery in 1984 and manslaughter in 1990. The information also alleged, that defendant had suffered a prior conviction of violating Health and Safety Code section 11351.5.
The trial court granted the defendant's pretrial Pitchess motion allowing discovery from the personnel files of four Los Angeles Police Department (LAPD) officers, of any records reflecting the officers' propensity for dishonesty. The court conducted an in camera review in which it found several items to be discoverable.
Defendant brought a motion pursuant to Penal Code section 995, to dismiss the gang allegation, which the trial court denied. The court granted defendant's motion for a separate trial on his prior felony convictions and the gang allegation.
Defendant and Gant were tried together, and both were convicted as charged in count 1. Defendant admitted his 1984 robbery conviction (§ 211), and his 1990 manslaughter conviction (§ 192), as strikes within the meaning of the "Three Strikes" law. He also admitted a 1990 conviction of violating Health and Safety Code section 11351.5.
Defendant waived his right to a jury trial on the gang allegation, and the matter proceeded as a court trial. After hearing testimony, the trial court found the allegation to be true.
The trial court exercised its discretion under section 1385 to strike defendant's 1984 conviction of robbery, committed when he was 18 years old and then sentenced defendant to the low term of three years in prison, doubled as a second strike to six years, enhanced by three years due to the gang finding, for a total term of nine years. Defendant filed a timely notice of appeal from the judgment.
Section 1385, subdivision (a), permits a trial court to strike, on its own motion and '"in furtherance of justice,"' an allegation or finding that a defendant had previously been convicted of a serious or violent felony that qualifies as a strike under the Three Strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.)
2. Prosecution Evidence Relevant to the Narcotics Charge
After the LAPD received a citizen report that the occupants of the rear residence of a duplex on East 56th Street (the house) were selling drugs, several officers were assigned to observe the house on April 11, 2009. Two plain-clothed officers watched from an unmarked police car parked in front of the house, while two uniformed officers, Martinez and Norwood, watched from their patrol car parked in the alley behind the house.
Officer Martinez walked into the driveway of the house, where he saw an African-American man and woman walking. When the couple saw him, they ran toward the rear residence, where Gant was standing just outside the front door. When the couple reached him, Gant ran into the house and slammed the door behind him, leaving the couple outside. As Officer Norwood chased the couple, Officer Martinez went to the back of the house and observed the interior through a window. There he saw an unidentified man playing video games. He saw defendant go to the dining table, pick up two bags containing what appeared to be rock cocaine, and walk down the hall in the same direction the officer had seen Gant go. The video game player then saw Officer Martinez, looked surprised, and started turning off lights. Officer Martinez heard male and female voices, and the blinds were drawn.
As other officers came to assist him, Officer Martinez pounded on the front door and announced himself as a police officer. Tiffany Hayes (Hayes) opened the door, with the video game player behind her, and the two were detained outside by officers. Officer Martinez entered and said, "Police Department. Come out." A few moments later, defendant came out of the first bedroom and surrendered.
Officer Martinez then heard the toilet flushing. Based upon his experience, he believed that narcotics were being flushed down the toilet. Officer Martinez again identified himself, and ordered Gant to come out. Gant emerged, carrying a baby against his chest. After handing the baby to Hayes, Gant and the video game player ran off in different directions.
Officers Martinez and Brkic obtained Hayes's consent and then searched the house. Hayes told Officer Martinez to take anything illegal away from her house, that it was not hers, and that she could not control what "they" did in her house. Hayes also told Officer Martinez that Gant was her baby's father, and that he lived there with her. Officers found $244 in cash in one of the bedrooms. The cash included three $20 bills, five $10 bills, seventeen $5 bills, and forty-five $1 bills, stacked in pyramid fashion on the dresser. In the same bedroom, officers found a California identification card with Gant's photograph on it, three guns in a handbag, additional magazines and ammunition for two of the guns, and male and female clothing. In the dining room, officers recovered a scale and additional plastic bags containing off-white solids resembling rock cocaine. With the help of the K-9 unit, a large plastic bag of what appeared to be rock cocaine was recovered from a baby bassinet in the second bedroom.
The parties stipulated that the two bags containing off-white solids were recovered from the house, tested, weighed, and found to contain cocaine base, with a combined weight of 20.37 grams.
Officer Martinez, who was experienced in making narcotics arrests, testified that a piece of rock cocaine selling for one or two dollars would provide a single dose weighing .05 grams or less, and that 20.37 grams would yield 400 or more such doses. The officers did not find smoking paraphernalia in the house, and neither defendant nor Gant appeared to be under the influence of cocaine, or have other physical indications of being a cocaine user. Such facts, combined with the currency in mostly small denominations, the scale, and the location of these items all indicated to Officer Martinez that the defendants were working in concert to sell narcotics from the house, possibly taking turns in what he described as a "rotating" operation in which each participant would be responsible for his own inventory.
3. Defense Evidence
Hayes testified that Gant did not live with her, although he slept there on occasion. Hayes claimed that when the police knocked at her door the evening of April 11, 2009, Gant was playing video games while she and defendant were sitting nearby on the couch. She claimed that just before the knock, an unknown male teenager had run into the house through the back door, and that it was defendant who stood behind her when she opened the door.
On rebuttal, Officer Martinez testified that Hayes never mentioned a stranger entering her house that evening.
Hayes denied that defendant had ever been in her home before that evening. She denied seeing defendant walk to the dining table to pick up narcotics or anything else, run into one of the bedrooms, or come out of the bedroom. She claimed that defendant sat on the couch the entire time he was there, until she opened the front door. She denied that anyone had been selling drugs in her presence, and claimed that she never saw defendant possess narcotics or engage in any narcotics activity.
4. Gang Evidence
Retired LAPD Detective, Adalberto Luper testified that he had been employed by the LAPD for 27 years and as a homicide detective he investigated the 1989 killing of Emerson Rucker (Rucker) by Michael Fells (Fells) and defendant. When Detective Luper investigated Fells, defendant and the BSV gang, he determined that Fells was a documented member of the BSV gang, and that Fells and defendant were "running buddies." During his investigation, Detective Luper interviewed other BSV gang members, both in and out of custody, including Montreal Lavonte Brown.
Fells and defendant were charged with murder, but pled guilty to manslaughter.
There were approximately 30 or 40 BSV members at the time of Detective Luper's investigation. The BSV considered several other gangs as rivals, and had engaged in a pattern of criminal conduct, including murder. Detective Luper testified that he could not remember whether Rucker was a gang member, but when he was shot to death in BSV territory, he was wearing blue, the favored color of the rival Crips gangs. The BSV gang's preferred color was red.
Officer Martinez testified that Gant had admitted that he was a BSV gang member to Officer Martinez and other officers. On the evening of April 11, 2009, Officer Martinez stopped a car leaving the house, and spoke to the three occupants. The driver, Donald Brown, identified himself as a member of the Rolling 20 Bloods gang. The passengers, Montreal Brown and Russell Garrett (Garrett), both admitted they were BSV gang members. Officers found marijuana and $400 to $500 in miscellaneous currency on Garrett's person, as well as some empty coin-size zip lock bags.
Officer Mario Flores testified as the prosecution's gang expert. He was familiar with the BSV gang, and had formal and informal contact with its members, who commonly identified themselves with monikers, the color red, and tattoos, usually in the form of "BSV," or "ES" for East Side. Officer Flores testified that the gang had approximately 200 members and claimed a defined territory, including the area surrounding the house, and that it engaged in a pattern of criminal activity, including robberies, murders, weapons violations, burglaries, and drug sales. Officer Flores produced conviction records of two self-admitted BSV gang members, one for possession of narcotics for sale in 2009, and the other for carrying a concealed weapon in 2007.
Officer Flores acknowledged that he had had no prior contacts with defendant, who had no tattoos and was not wearing red on the day of his arrest, and that law enforcement had no documentation suggesting gang membership by defendant.
In Officer Flores's opinion, defendant was either a member of the BSV gang, or an associate or affiliate of BSV. This was based upon defendant's "hanging out" with other documented BSV members, along with his involvement in one of the gang's usual criminal activities, drug sales. Officer Flores explained that associates and affiliates were not full-time gang members, but helped gang members in certain criminal activity, usually as a means to become full-time gang members.
It was also Officer Flores's opinion that the crime was committed at the direction of or in association with the BSV gang. He explained that a gang's profits from narcotics sales were used to promote and further the gang by financing the purchase of weapons to commit drive-by shootings and homicides, and to protect members from rival gang members. The location of the house, in BSV territory, also influenced his opinion. Officer Flores explained that the gang would not permit independent drug dealing in its territory by its members, nor would it permit nonmembers to sell narcotics, unless they paid a share of profits to the gang. These facts also reinforced his opinion that defendant was at least an affiliate of the BSV gang.
DISCUSSION
I. Substantial Evidence Supports the Gang Finding
A. Standard of Review
Defendant challenges the sufficiency of the evidence to support the trial court's true finding on the gang allegation. A finding of the gang enhancement is reviewed under the same substantial evidence standard as any other conviction. (People v. Ochoa (2009) 179 Cal.App.4th 650, 657 (Ochoa).)"[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (Ibid.) We do not reweigh the evidence or resolve conflicts in the evidence.(People v. Young (2005) 34 Cal.4th 1149, 1181.) Reversal on a substantial evidence ground "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The gang enhancement of section 186.22, subdivision (b)(1), has two prongs, both of which the prosecution must prove: (1) the crime was committed for the benefit of, at the direction of, or in association with any criminal street gang; and (2) the crime was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)
A trier of fact may reasonably infer the association element of the first prong from the fact that defendant committed the charged crime with another gang member, unless there is evidence that the gang members are "on a frolic and detour unrelated to the gang." (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Commission of a crime in concert with known gang members similarly supports the inference that the defendant acted with the specific intent required to establish the second prong. (People v. Villalobos, supra, 145 Cal.App.4th at p. 321; People v. Morales, supra, at p. 1198.)
B. Defendant Acted in Association with a Gang
Defendant contends that the evidence was insufficient to establish the first prong, that his crime was committed for the benefit of, at the direction of, or in association with a gang. First, he makes much of the weak evidence of his own gang membership. He acknowledges, however, that gang membership is not a required element of the gang enhancement of section 186.22, subdivision (b)(1). (People v. Albillar (2010) 51 Cal.4th 47, 67-68 (Albillar).)
Defendant cites three cases in which expert opinions were held not to have had a sufficient evidentiary basis, and he contends that they illustrate that the evidence in this case was just as insubstantial. (See People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran); Ochoa, supra, 179 Cal.App.4th 650; People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon).)We disagree and find them inapposite. Unlike here, there was no evidence in Albarran or Ochoa that the crime was committed in concert with one or more members of a gang. (See Albarran, supra, at pp. 218-219 [second gunman unidentified]; Ochoa, supra, at p. 653 [solitary gunman; no evidence of gang affiliation].) In Ramon, two gang members acted in concert, but, unlike here, their crime was not shown to be the kind of crime their gang ever committed. (Ramon, supra, 175 Cal.App.4th at pp. 846-847, 851-853.)
In contrast here, defendant was in a house in gang territory with Gant, a member of the BSV gang, and in possession of rock cocaine for sale, a known activity of the BSV gang. Two other BSV gang members and a member of another Blood gang were stopped after leaving the house that evening. One of the BSV gang members was in possession of marijuana, $500 in cash, and small zip-lock bags.
The trial court could reasonably infer that defendant was acting in concert with Gant and the unidentified video game player in a joint or rotating narcotics operation. Gant lived in the house. After Gant went inside, apparently warned by the couple outside the house, he and other occupants took action. Defendant went to the dining table to retrieve two bags of rock cocaine. The video game player turned off lights. Officer Martinez heard male and female voices, and someone drew the blinds. Officer Martinez then heard the toilet flushing, a sign that drugs were being flushed down the toilet. The gang controlled the narcotic sales in its territory, and did not permit independent sales by its members. It was thus unlikely that Gant, a BSV member, was running an operation that was not at the direction of, or in association with the gang.
Hayes told Officer Martinez that Gant lived in the house. Although she denied it at trial, officers had found items in the bedroom they apparently shared, indicating that Gant lived there: Gant's California identification card, male clothing, guns, and ammunition.
Further, there was substantial evidence that selling narcotics benefitted the gang. Gang expert, Officer Flores, testified that profits from narcotics sales were used to promote and further the gang by financing the purchase of weapons to commit other crimes and to protect themselves from rival gang members who came into their territory.
We conclude that the trial court could reasonably infer that defendant, Gant, Hayes, and the video game player possessed the narcotics for sale in association with the BSV gang, as well as for its benefit.
In a footnote in his opening brief, defendant argues that the prosecutor improperly argued that certain evidence had been admitted, when in fact, it had not been, and that the trial court made some erroneous factual findings. In a footnote in his reply brief, defendant makes clear that he has not urged these points as a ground for reversal, but to bolster his contention that the trial court's decision was not based upon substantial evidence. Our conclusion is based upon a review of the whole record of evidence. (See People v. Johnson, supra, 26 Cal.3d at p. 577.) We have not considered evidence that was not admitted or that was misconstrued by the trial court.
C. Defendant's Specific Intent
In his opening brief, defendant challenged the evidence to support a finding that he committed the crime with the specific intent to promote, further, or assist the BSV gang. The California Supreme Court then published Albillar, in which the court made clear that under the second prong of the gang enhancement, the prosecution was required to prove only that defendant acted with the specific intent to promote, further, or assist criminal conduct by gang members, not to promote further, or assist a gang. (Albillar, supra, 51 Cal.4th at p. 67; see also pp. 64-65.) In his reply brief, filed subsequently to the publication of Albillar, defendant acknowledged that "if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Id. at p. 68; see also People v. Villalobos, supra, 145 Cal.App.4th at p. 322.)
Defendant now contends that the evidence was insufficient to establish that he knew Gant was a gang member. He suggests that the prosecution was required to present evidence that he had frequented the house or had previously associated with Gant, and he claims that the only evidence that he engaged in any past activity at Gant's home was a citizen complaint that someone matching defendant's description had been selling drugs there.
Our review is not so narrowly confined as defendant suggests. We must review all the evidence. (People v. Johnson, supra, 26 Cal.3d at p. 577.) Officer Flores testified that in his expert opinion, defendant was either a member, associate or affiliate of the BSV gang. Substantial evidence supported that opinion: 19 years ago, defendant killed a person in BSV territory in association with Fells, a BSV member and defendant's running buddy. Evidence at the time suggested that the victim was a rival gang member. Thus, defendant was aware of the BSV gang, and knew where its territory was located. Defendant possessed the cocaine for sale in BSV territory, at the home of a BSV member, at a time when other BSV members had just left the house. One of them, Montreal Brown, had been a member of the gang in the 1980's, when defendant and Fells were associating with each other.
The inference arising from such facts, that defendant knew that Gant was a gang member, is not only reasonable, it is compelling. We conclude that substantial evidence supported the second prong, the specific intent to promote, further, or assist criminal conduct by gang members. (See Albillar, supra, 51 Cal.4th at p. 68.)
D. BSV was a Criminal Street Gang
Defendant challenges the evidence to support the trial court's finding that BSV was a criminal street gang, as defined by section 186.22, subdivision (f). The statute defines "criminal street gang" as "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 [specified] paragraphs . . . 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."
"Therefore, the 'criminal street gang' component of a gang enhancement requires proof of three essential elements: (1) that there be an 'ongoing' association involving three or more participants, having a 'common name or common identifying sign or symbol'; (2) that the group has as one of its 'primary activities' the commission of one or more specified crimes; and (3) the group's members either separately or as a group 'have engaged in a pattern of criminal gang activity.' [Citation.]" (People v. Vy (2004) 122 Cal.App.4th 1209, 1222, quoting People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)
Defendant challenges only the "primary activities" element of the definition. A primary activity means "one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).)"Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley, supra, 14 Cal.4th 605." (Sengpadychith, supra, at p. 324, italics omitted.) In Gardeley, the gang expert testified that the defendant's gang's primary purpose was to sell narcotics, basing his opinion on conversations with gang members, investigations of many crimes committed by gang members, and information from colleagues and other law enforcement agencies. (Gardeley, supra, 14 Cal.4th at pp. 612, 619-620.)
Officer Flores testified that the BSV gang committed such crimes as narcotic sales and weapons violations, both among the offenses enumerated in section 186.22. (See § 186.22, subd. (e)(4) & (23).) Defendant contends that Officer Flores's testimony was insufficient to satisfy the second element of the statute, because he did not expressly say that the two crimes were the gang's "primary," "chief," or "principal" occupations. We agree that had the prosecutor asked about BSV gang's primary activities, and had Officer Flores been more precise, the evidence would have been more clear. However, it was established by Officer Flores's testimony that the two crimes were among the gang's primary activities. Officer Flores testified to his opinion that the BSV gang engaged in a pattern of criminal activity that included narcotic sales and weapons violations. When defense counsel asked him to explain his definition of "pattern," Officer Flores stated that a pattern meant the commission of a gang's "usual" crimes, and he agreed that commission of such crimes would have to be "widespread or frequent" to become a pattern.
Officer Flores thus held the opinion that that narcotic sales and weapons violations were the gang's usual occupations, and its commission of such crimes was frequent or widespread. He was not required to use specific words, so long as his testimony could be fairly understood to mean that the crimes were among the gang's primary occupations. (Cf. People v. Margarejo (2008) 162 Cal.App.4th 102, 106-108 [meaning fairly inferable from question the expert answered].) The frequent or widespread and usual commission of narcotic sales and weapons violations is not occasional. (See Sengpadychith, supra, 26 Cal.4th at p. 323.) It follows that Officer Flores testimony fairly implied that such crimes were among the primary activities of the gang.
Defendant also contends that the expert's testimony lacked an adequate foundation, and argues that Officer Flores's testimony closely paralleled the expert testimony found insufficient in In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander). In Alexander, the reliability of the basis of the expert's testimony could not be determined, because the prosecutor had failed to elicit any information whatsoever about it. (Id. at 612.) When the expert was asked about the gang's primary activities, he simply responded, without explaining what information he had relied on, that he knew the gang had been involved in murders, auto thefts, vehicle burglaries, felony graffiti, and narcotics violations. (Id. at pp. 611-612.) Because the testimony lacked proper foundation, the appellate court held that the expert's conclusory testimony could not constitute substantial evidence of the gang's primary activities. (Ibid.)
Here, in contrast, the foundation for Officer Flores's opinion was adequate, as the information came from the expert's own investigations and interviews with BSV members. (See Sengpadychith, supra, 26 Cal.4th at p. 324 [opinion properly based on expert's personal investigation and information from other law enforcement officers or agencies]; Gardeley, supra, 14 Cal.4th at pp. 612, 619-620.) Officer Flores testified that he had several years of experience, on patrol and in his current assignment, investigating gangs and arresting gang members. He testified that his current assignment was a gang suppression unit investigating the BSV gang, that he had ongoing formal and informal contact with current members of the gang, and that he was familiar with its territory, signs, use of monikers, and tattoos. In his work, Officer Flores had investigated or had personally become aware of robberies, murders, and drug sales committed by the BSV gang.
This case is distinguishable from Alexander for the additional reason that there was substantial evidence that BSV gang members have "consistently and repeatedly" committed criminal activity listed in the gang statute. (Sengpadychith, supra, 26 Cal.4th at p. 324, italics omitted.) Such evidence consisted, in part, of other members' convictions, admitted to prove a pattern of criminal gang activity, identified as the third element in People v. Vy, supra, 122 Cal.App.4th at p. 1222. Officer Flores produced certified copies of judgments of convictions for two members of the BSV gang: a 2009 conviction for possession of narcotics for sale; and a 2007 conviction for carrying a concealed weapon. One of the gang members had admitted his membership to Officer Flores personally, and the other admitted his gang membership to arresting officers, who advised Officer Flores of the admission. The foundation for the judgments was thus proper. (Sengpadychith, supra, 26 Cal.4th at p. 324.)
In Alexander, the convictions of other gang members were insufficient, by themselves, because they were not accompanied by evidence that the offenses were committed consistently or repeatedly. (Alexander, supra, 149 Cal.App.4th at p. 614, fn. 5.) Here, however, the circumstances of the current offense support such a finding, and may properly be considered in determining whether a statutorily listed crime is one of the gang's primary activities. (Sengpadychith, supra, 26 Cal.4th at p. 323.) The LAPD received an anonymous report that the occupants of the house were selling drugs. When officers searched the house, they found narcotics and evidence of an ongoing sales operation by more than one person, including at least one known gang member, acting in concert with others. Several guns, magazines, and ammunition were found secreted in a handbag in a gang member's bedroom, where money was being sorted.
In sum, the expert's opinion, the certified judgments, and the circumstances of the current offense together provided substantial evidence that one of the primary activities of the BSV gang was the sale of narcotics, and another was the unlawful possession of firearms, two offenses listed in section 186.22, subdivision (e). Substantial evidence thus supported the trial court's finding that the BSV gang a "criminal street gang" within the definition of section 186.22, subdivision (f).
II. Substantial Evidence Supports Defendant's Conviction
A. Standard of Review
Defendant contends that there was insufficient evidence to support his conviction of possession of narcotics for sale. Relying upon a jury instruction, defendant contends that we must reverse his conviction if it appears that the offense has not been proven beyond a reasonable doubt. However, "'it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]' [Citation.]" (People v. Thomas (1992) 2 Cal.4th 489, 514.)
As we stated previously, we review the whole record in the light most favorable to the judgment to determine whether a rational jury could have found the essential elements of the crime beyond a reasonable doubt, presuming in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence, and resolving neither credibility issues nor evidentiary conflicts. (People v. Young, supra, 34 Cal.4th at pp. 1175, 1180-1181.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence, even when the conviction rests primarily on circumstantial evidence. (People v. Kraft, supra, 23 Cal.4th at p. 1053.)
B. The Circumstances were Consistent with Defendant's Guilt
Defendant argues that the only evidence against him was that he grabbed two baggies of narcotics and ran into another room of a house where he was a mere visitor. He argues that although he possessed narcotics, the evidence indicated only that Gant was selling narcotics, as the cash was found in the bedroom where Gant's identification was found. Defendant dismisses as conjecture Officer Martinez's opinion that the business may have been a rotating operation. He explains that because both defendant and Gant grabbed drugs from the same location, they could not have been accounting for their individual inventories. Defendant also points out that he had only 79 cents on his person that night. He concludes that his actions were consistent with simple possession and avoiding detection for simple possession.
"[R]eversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.]" (People v. Redmond (1969) 71 Cal.2d 745, 755.) Further, we cannot substitute our own reasonable inferences for those of the jury. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373.) Nor can we reweigh a witness's testimony or other evidence. (People v. Young, supra, 34 Cal.4th at p. 1181.)
As defendant concedes, the evidence was sufficient to establish that he possessed narcotics. He does not argue that the evidence was insufficient to show Gant's intent to sell narcotics. He acknowledges that the officers found packaging, a scale, cash in various denominations, a large quantity of narcotics, and that in Officer Martinez's opinion, these facts, combined with the absence of evidence of personal use, showed that someone was selling narcotics on the premises.
As respondent observes, the fact defendant and Gant both retrieved drugs from the dining table suggests that each was responsible for his own inventory, lending support to Officer Martinez's rotating-operation theory. However, even if we were to reject that theory, as defendant urges, it remains that Officer Martinez was also of the opinion that there was a joint operation—that the occupants were working in concert to sell narcotics. Officer Martinez indicated that a rotating operation was just one way to do so.
The circumstances supported the opinion that defendant and the other occupants of the house were acting in concert to sell narcotics. When the video game player saw Officer Martinez through the window, all the occupants appeared to be working together to avoid detection. Someone turned off lights, while someone else drew the blinds, the toilet was flushed, and both male and female voices could be heard in the midst of the activity. Hayes's comments to Officer Martinez indicated that she knew contraband would be found, and that "they"—not just Gant—were doing something illegal in the house.
We conclude that substantial evidence supported defendant's conviction of possession of narcotics for sale. III. Pitchess Review
Defendant requests a review of the trial court's in camera hearing and decisions regarding the discovery of items requested in defendant's Pitchess motion. Defendant requested any information contained in the personnel files of Officers Malik, Bruner, Martinez, Norwood, Brkic, and Harden, suggesting that the officers had engaged in misconduct, including acts of excessive force, bias, or dishonesty. At the hearing on the Pitchess motion, defense counsel agreed to limit the scope of the motion to evidence of the officers' dishonesty or falsity. The trial court granted the LAPD's request to limit the discovery to records created within the past five years.
Defendant requests a review of the trial court's determination that there were no discoverable items in the records, other than those it ordered disclosed. The trial court's determination is reviewed for an abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221.) We find the reporter's transcript sufficiently detailed to review the trial court's discretion, without having to order the production of documents. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.) Upon review of the sealed record of the in camera proceedings, we find that the LAPD custodian of the records complied with the scope of the Pitchess motion, and that the trial court did not abuse its discretion in its determination of the discoverability of each item produced in the in camera hearing.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
J.
CHAVEZ
We concur:
Acting P. J.
DOI TODD
J.
ASHMANN-GERST