Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. NA069507, Charles D. Sheldon, Judge. Affirmed in part, reversed in part and remanded with directions.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant Michael Shante Pitts appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a), count 1), possession of ammunition (§ 12316, subd. (b)(1), count 2), possession for sale of a controlled substance (Health & Saf. Code, § 11378, count 4) and possession of marijuana for sale (id., § 11359, count 5). The jury found the criminal street gang enhancement pursuant to section 186.22, subdivision (b)(1)(A), true as to counts 1, 4, and 5. As to count 4, the jury found the firearm enhancement pursuant to section 12022, subdivision (c), to be true, and as to count 5, the jury found the firearm enhancement pursuant to section 12022, subdivision (a)(1), to be true.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury found defendant not guilty on count 3 (possession of a deadly weapon, § 12020, subd. (a)(1)) and count 6 (utilizing a fortified house, Health & Saf. Code, § 11366.6). The jury also found the criminal street gang enhancement untrue as to count 2.
Defendant was sentenced to a total term of five years in state prison, consisting of two years on count 1, plus three years for the section 186.22, subdivision (b)(1)(A), criminal street gang enhancement. The trial court ordered the remaining terms to run concurrently. The trial court imposed a $20 court security fee (§ 1465.8, subd. (a)(1)), a $50 laboratory analysis fee (Health & Saf. Code, § 11372.5), and a $200 restitution fine (§ 1202.4, subd. (b)). It also imposed and suspended a $200 parole revocation fine (§ 1202.45, subd. (b)).
On appeal, defendant contends the trial court erred in refusing to hold a hearing on his motion to suppress evidence, there was insufficient evidence to support the criminal street gang enhancement, and the prosecutor committed misconduct. The People contend there were sentencing errors relating to the fines imposed. We agree that the trial court should have held a hearing on defendant’s motion to suppress evidence, there was insufficient evidence to support the criminal street gang enhancement and there were sentencing errors relating to the fines imposed.
FACTS
A. Prosecution
On the evening of March 9, 2006, officers from the Long Beach Police Department executed a search warrant at the detached garage of a residence in the City of Signal Hill. The garage had security cameras mounted on the roof, a security screen on the door and bars on the windows. As Officer Patrick Dougherty approached the door, he placed a pick in the outside edge of the security screen and partially opened the door. Defendant asked, “‘Who is it? Who is there?’” Officers responded, “‘Long Beach Police Department. Demand entry.’”
During the search, officers recovered a loaded 12-gauge shotgun, 59.04 grams of marijuana inside a plastic bag in a cigar box, two boxes of different caliber bullets, plastic bags, two scales and a marijuana horticulture book. Defendant was searched; a blue plastic bag containing 3.89 grams of methamphetamine and $148 in cash were recovered from his pocket.
Long Beach Police Officer Oscar Valenzuela interviewed defendant the day after his arrest. Defendant stated that his grandmother owned the property and let him use it. He said he had been employed by a company called G.W. Stone in Alhambra until two weeks before his arrest. He stated that the shotgun in his garage belonged to a friend; the friend had asked him to store the gun so that his friend’s grandchildren could not get to it.
Defendant said that the drugs were for his personal use. When asked how defendant would use the drugs, since there was no paraphernalia located, he indicated that the officers missed the pipes he had in the garage. Defendant claimed the scales and plastic bags were used for his collection of jewelry, which he planned on melting down into a necklace.
At trial, Officer Valenzuela opined that defendant possessed the methamphetamine and marijuana for purposes of sale. His opinion was based on the amount of drugs recovered, the plastic bags for packaging, the scales, the cash in defendant’s possession when arrested, the lack of paraphernalia for drug use and the security system at the garage, among other things.
Long Beach Police Detective Todd Johnson, a gang expert, testified on behalf of the prosecution. In Detective Johnson’s opinion, defendant was a member of the Insane Crips Gang (ICG). The bases for the detective’s opinion were defendant’s tattoos of a “2” and a “1” on his tricep, which represented 21st Street for Insane Crips, photographs at defendant’s parents’ house depicting defendant “throwing up” gang signs, defendant was a self-admitted member of the ICG with the monikers of “Cyco Mike” or “Little Mike,” and an envelope found inside the garage during the search bearing the notation “Cyco Mike.”
Detective Johnson opined that defendant committed the crimes “for the benefit of or in association with or at the direction of the Insane Crips.” The shotgun was used to deter individuals from reporting his drug-selling activities to law enforcement officers and to prevent rival gang members from stealing his drugs. The revenue obtained from selling drugs provided money for purchasing weapons and more drugs for the gang. Regarding the ammunition for other weapons that was found in the garage, gang members had numerous weapons that would be passed around to each other to commit crimes.
B. Defense
Defendant’s aunt, Vicki Pitts, testified that defendant had been a gang member five to six years earlier but no longer was an active gang member.
On two occasions after defendant was arrested, defense investigator Charlie Watson took photographs of the garage. During a visit, Watson photographed marijuana smoking pipes and bongs.
Defendant’s girlfriend, Dayanara Barrett (Barrett), arrived while the officers were searching the garage. She spoke to Officer Manuel Banuelos, who told her to hire a “good attorney” because the officers had planted and destroyed evidence. She took photographs the day after defendant’s arrest, including pictures of bongs.
C. Rebuttal
Officer Banuelos made contact with Barrett after defendant’s arrest. At no time did he advise her to hire a lawyer or tell her that evidence was being planted.
D. Surrebuttal
The defense recalled Barrett. She had two cars parked outside the garage. When the officers began to search her car, she became upset and accused them of an illegal search. The officers told her that they were searching her vehicle because defendant had previously been seen driving it. After the search, Officer Banuelos told her that the search of the car was illegal and that she should hire a good lawyer because the officers had planted and destroyed evidence in the garage. After the search, she found a “weed bong” in the garage and showed it to the defense investigator. She also found a bong that had been “smashed” in the garage.
Defendant testified on his own behalf. He said that he had been a gang member when he was 14 years old and had gotten his “21” tattoo when he was 13 years old. He was 34 at the time of trial and was no longer a gang member. The photo Detective Johnson used in opining that defendant was a gang member was taken two or three years prior to the trial and depicted defendant’s brother “throwing” a gang sign.
Defendant stated that the marijuana and methamphetamine found in the garage and in his pocket were for his personal use. The scales recovered were used to weigh jewelry. Defendant also testified that the cameras installed in the garage did not work but were decoys to discourage intruders. He testified that there was no electricity supply in the garage, and he denied that he used an extension cord that ran to his grandmother’s house to power the garage. He used a car battery to illuminate the garage.
Defendant indicated that his friend had asked him to keep the shotgun in his garage while his friend’s grandchildren were visiting. He knew there were bullets in the garage, but they did not belong to him.
Defendant put a screen door over the wooden door of the garage and bars and boards over the windows after intruders broke into the garage in 2003.
Defendant admitted that he had previously been convicted of felony forgery and commercial burglary.
DISCUSSION
A. The Refusal to Conduct a Motion to Suppress
Defendant contends that the trial court erred in refusing to hold a hearing on his motion to suppress under section 1538.5 based upon the erroneous notion that relief under that section was not available in cases involving search warrants. We agree.
Prior to trial, defendant filed a motion to suppress evidence pursuant to section 1538.5. Defendant alleged that the search warrant affidavit was insufficient to justify issuance of the search warrant because it was based on hearsay, “lack[ed] any indicia of probable cause, and [wa]s facially deficient.” He further alleged that there were no facts to substantiate the reliability of the confidential informant, and the police officers violated the Fourth Amendment by conducting an inadequate “knock-notice” at the time the warrant was served.
Prior to trial, the defense requested that the trial court hold a hearing on defendant’s motion to suppress. The trial court declined to do so, apparently based upon the mistaken belief that a section 1538.5 motion was not applicable because there was a search warrant. The trial court stated, “we’re not going to have a [section] 1538.5 by court ruling, search warrant case.” During the trial, the defense inquired into whether there ever was a ruling on the motion to suppress. The trial court responded, “There was no ruling because there was a search warrant.”
Section 1538.5 provides in part:
“(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds:
“(A) The search or seizure without a warrant was unreasonable.
“(B) The search or seizure with a warrant was unreasonable because any of the following apply:
“(i) The warrant is insufficient on its face. [¶] . . .
“(iii) There was not probable cause for the issuance of the warrant.”
The law is clear that under section 1538.5, a defendant may move to suppress evidence obtained “as a result of search or seizure either with our without a warrant on the ground that the search or seizure was unreasonable.” (People v. Superior Court (1969) 70 Cal.2d 123, 128, italics omitted.) Defendant challenged the sufficiency of the affidavit in support of the search warrant and argued that failure to give proper knock and notice violated the Fourth Amendment. The motion challenged the affidavit of probable cause and alleged that the affiant failed to establish that the confidential informant was reliable.
The trial court failed to hold a hearing on the 1538.5 motion filed by defendant. Defendant was entitled to an opportunity to litigate his motion. We find that a remand to the trial court would be appropriate to litigate the motion, and we conditionally reverse the judgment to allow the trial court to hear the motion. If the motion is granted and there is a reasonable doubt as to whether the unlawfully seized evidence was prejudicial, then the court should order a new trial. If the motion is denied, or if the unlawfully seized evidence was harmless, the trial court should reinstate the judgment. (People v. Estrada (2003) 105 Cal.App.4th 783, 797; People v. Hustead (1999) 74 Cal.App.4th 410, 423.)
We decline the People’s request that we rule on the motion in the first instance. Inasmuch as there was no hearing and defendant had no opportunity to present evidence in support of his motion, it is inappropriate that we rule on the motion. The People’s claim that defendant intended to submit on his points and authorities only and not to present evidence in support of his motion is not supported by the record.
B. Sufficiency of Evidence that the Offenses were Gang Related
In reviewing the sufficiency of the evidence, the question on appeal is whether there is evidence from which a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty or the enhancement allegations true beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) “In making this determination, we ‘“must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Rayford (1994) 9 Cal.4th 1, 23; accord, People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
Substantial evidence is that which is reasonable, credible and of solid value. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) Although all reasonable inferences must be drawn in support of the judgment, the court “may not ‘go beyond inference and into the realm of speculation in order to find support for a judgment. A finding . . . which is merely the product of conjecture and surmise may not be affirmed.’ [Citations.]” (People v. Memro (1985) 38 Cal.3d 658, 695; accord, People v Waidla (2000) 22 Cal.4th 690, 735.)
Section 186.22, subdivision (b)(1), provides that “any 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 be punished pursuant to that section. Defendant contends that there was insufficient evidence to support the jury’s true finding on the street gang enhancement. We agree.
Even assuming that there was sufficient evidence to support defendant’s membership in ICG at the time the offenses were committed, there was insufficient evidence that the crimes were gang related. Committing a crime while being an active member of a gang is not enough to sustain a gang enhancement. The crime itself must be “gang related.” (People v. Gardeley (1996) 14 Cal.4th 605, 622.)
Here, there simply is no substantial evidence to support the finding that defendant possessed the firearm, controlled substance or marijuana for the benefit of, at the direction of, or in association with the ICG, with the specific intent to promote, further, or assist criminal conduct by ICG gang members. Detective Johnson’s opinion that the offenses were committed for the benefit of ICG was based on the fact that a shotgun was found in the garage. Detective Johnson testified gang members who sell drugs use guns “to instill fear in the neighborhood” and protect their drugs from being taken by rival gang members or the police. While defendant may have been a gang member, in gang territory, with a firearm, that is not enough to prove the gang allegation. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199, review den. Dec. 13, 2006.) The People were required to prove that his possession of the gun had “‘some connection with the activities of a gang’” (ibid.) but failed to do so.
People v. Gardeley, supra, 14 Cal.4th 605, relied upon by the People, is distinguishable. In Gardeley, defendant was an admitted Family Crips gang member who, with two other gang members, physically assaulted and robbed a victim in a Crips controlled area. Defendant admitted he had been dealing drugs right before the confrontation. At trial, evidence was introduced of three separate “gang-related” incidents. (Id. at p. 624.) In the instant case, by contrast, there was no evidence defendant had been with any gang members either before, or while committing the offenses. In addition, no evidence was introduced of any previous “gang-related” incidents. The testimony of Detective Johnson was insufficient to establish that defendant possessed the weapon to intimidate the neighborhood into not interfering in ICG drug sales.
C. Prosecutorial Misconduct
Defendant claims that the prosecutor committed three acts of misconduct during his rebuttal closing argument. Defendant claims that the prosecutor “berated” defense counsel, stated his personal belief regarding defendant’s guilt and committed Griffin error. We disagree.
Griffin v. California (1965) 380 U.S. 609 (Griffin).
A prosecutor’s argument is prejudicial misconduct only if it infects the trial with such unfairness as to make the conviction a denial of due process, or uses deceptive or reprehensible methods to mislead the court or jury. (People v. Hill, supra, 17 Cal.4th at p. 819). “Nonetheless, the prosecutor has wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account. [Citations.]” (People v. Bemore (2000) 22 Cal.4th 809, 846.) “[A] prosecutor is free to give his opinion on the state of the evidence, and in arguing his case to the jury, has wide latitude to comment on both its quality and the credibility of witnesses. [Citations.]” (People v. Padilla (1995) 11 Cal.4th 891, 945, overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
1. Claim of Berating Defense Counsel
During the prosecutor’s rebuttal argument, he stated: “I’m not going to address everything the defense said because I think you’re capable of weeding through a lot of the stuff. So I’m going to quit at some point and let you sort of evaluate the rest of it.
“But defense talked about the two folks that left the garage and were stopped by Officer Rios, who was the person designated to do this kind of work when Detective Valenzuela said, ‘Hey, stop that car.’ And the suggestion to you is that because there was no arrest, therefore, a search was done and no drugs were found.
“Now, the defense has repeatedly brought stuff in that is not in evidence, nobody was asked about, to try and get you to consider that stuff. I want you to think about that. Be careful. Be aware of when this is happening and ask yourself why
“[Defense Counsel]: Objection. Improper argument as to what the defense has done about the case.
“The Court: You may continue, counselor.
“[Prosecutor]: What we do know, what is in evidence, is that car was stopped. Detective Valenzuela spoke to Officer Rios, I believe it was, who did the stop about exactly what happened during that stop. And based on the information he got, he said it just furthered his opinion that the defendant was selling drugs out of that house, and that’s why he possessed [those] drugs. Defense didn’t bother to ask anything more and say, ‘Why is that[?] What exactly did he learn?’ They didn’t want to get into that.”
It is prosecutorial misconduct “‘to imply that defense counsel has fabricated evidence or otherwise to portray defense counsel as the villain in the case. . . . Casting uncalled for aspersions on defense counsel directs attention to largely irrelevant matters and does not constitute comment on the evidence or argument as to inferences to be drawn therefrom.’” (People v. Sandoval (1992) 4 Cal.4th 155, 183-184.) However, while it is misconduct to imply “that defense counsel sought to deceive the jury,” it is not misconduct to “urg[e] the jury not to be misled by defense evidence.” (People v. Cummings (1993) 4 Cal.4th 1233, 1302.)
The prosecutor’s response to defendant’s trial counsel’s argument was an effort to show that defendant’s interpretation of the evidence was unreasonable. During her argument, defendant’s trial counsel mentioned the stop in an attempt to (1) negate the prosecution’s theory that defendant possessed the narcotics found in the garage for sale, and (2) attack the credibility of the officers who testified regarding the stop. The prosecutor merely urged the jury not to be misled by defense counsel’s insinuations. This was not misconduct. (People v. Cummings, supra, 4 Cal.4th at p. 1302.)
2. Claim of Prosecutor Stating His Personal Belief Regarding Defendant’s Guilt
During the prosecutor’s rebuttal argument he stated: “Why didn’t the police take a picture of the cords coming out of the house? Because they didn’t know the defendant was going to lie about there being power there. They can’t think of every possible story the defendant is going to make up. What if a guy came in and said there was a spaceship hovering over there that was responsible for all of this activity? Would he complain to the police he didn’t take a picture of the sky, not anticipating he didn’t say that. He can come in here and make up anything he wants to. Some of it is surprising, I think.
“Weighing conflicting testimony. You know I don’t want to get into every little thing that was said here by the defense witnesses. There is an instruction that tells you once you catch someone in a lie you can disregard everything they say, unless the particulars of what else was said for some reason ring true to you in spite of the fact that you distrust this witness at this point because of the lie the witness has told. But you can just disregard it based on that.”
It is not misconduct to refer to testimony as “lies” as long as the prosecutor agues inferences based on the evidence and not on the prosecutor’s personal belief. (People v. Sandoval, supra, 4 Cal.4th at p. 180.) We find that the prosecutor’s comments regarding the defendant’s explanation for the cords was a fair comment on the evidence and appropriate in response to defendant’s argument. Defendant’s counsel argued the following: “Mr. Pitts told you there is no electricity in that house. . . . [O]ne of the police officers . . . told you, ‘I saw an electric cord . . . that ran into the front house.’ [¶] Now, if they saw a cord . . . going to the front house . . ., they would have taken photographs. My investigator took these photographs. There is no cord running anywhere but in the dirt right there . . . .”
Viewing the prosecutor’s comment that defendant lied about the extension cord in context, the prosecutor was commenting on the defendant’s credibility as a witness. The prosecutor’s comment on defendant’s credibility as it pertained to the source of the electricity in the garage was not misconduct.
Inasmuch as there was no prosecutorial misconduct, we need not address the People’s claim that defendant waived his contention by failure to object to the prosecutor’s argument. (People v. Ochoa (1998) 19 Cal.4th 353, 427.)
3. Claim of Griffin Error
The prosecutor concluded his closing argument as follows:
“Okay. So you have sat here now through a jury trial, and you have to make your decision. The defendant has a constitutional right to a jury trial to fight these charges. And don’t—there is a presumption of innocence before the evidence starts.
“You have heard the evidence now. What I don’t want you to do is sit here and say, ‘Well, gees, there [are] always two sides to the same story,’ and assume—or bend over backwards to try to give some kind of credibility to what is essentially a ridiculous set of propositions the defense has given.
“There is one reason why this defendant had the jury trial. It’s not because he is not guilty, it’s because he doesn’t want to take responsibility.
“[Defense counsel]: Objection. Improper closing.
“The Court: You can continue, sir.
“[Prosecutor]: He doesn’t want to take responsibility for the choices he made, so you need to do that. You need to hold him responsible under the law for the choices he made. So for that reason, I’m asking you to find him guilty.”
Defendant claims Griffin error was committed when the prosecutor commented on his decision to go to trial. We disagree. Under Griffin, a prosecutor may not comment on a defendant’s failure to testify at trial. In this case, defendant did not exercise his right to remain silent, but took the stand and testified. Griffin was not applicable.
Defendant’s reliance on People v. Medina (1974) 41 Cal.App.3d 438 is misplaced. In Medina, the court found Griffin error when the prosecutor, during his closing argument, emphasized that the accomplices’ testimony was “unrefuted” and urged the jury to believe it because defendants, who were the only persons who could have refuted it, did not testify. (Id. at p. 457.) Here, the prosecutor urged the jury not to believe the testimony of defendant, who did testify. This was proper.
D. Sentencing Error
The People contend that we should correct certain sentencing errors, including the imposition of mandatory state construction penalties and mandatory security assessments.
In People v. Chavez (2007) 150 Cal.App.4th 1288, Division Five of this court determined that the Government Code section 70372, subdivision (a), state construction penalty applies to the restitution (§ 1202.4, subd. (b)) and parole revocation fines (§ 1202.45). (Chavez, supra, at pp. 1299-1300.) A state construction penalty in an amount of 50 percent of the restitution fine and parole revocation fines should be added, with the latter fines stayed. (Ibid.) Two state construction penalties of $100 should be added, with one of the fines stayed.
The trial court properly imposed a $50 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)). However, penalty assessments in the amount of $50 pursuant to section 1464, subdivision (a), and $35 pursuant to Government Code section 76000, subdivision (a), should have been imposed on the laboratory analysis fee. (People v. Chavez, supra, 150 Cal.App.4th at p. 1291.) The trial court is also obligated to impose a 20 percent state surcharge, i.e., $10 on the laboratory analysis fee in accordance with section 1465.7, subdivisions (a) and (b). (Chavez, supra, at p. 1292.) Finally, the trial court was required to impose state construction penalties of: (1) $25 on the laboratory fee (Health & Saf. Code, § 11372.5, subd. (a)); (2) $25 on the section 1464, subdivision (a), penalty assessment; and (3) $17.50 on the Government Code section 76000, subdivision (a), penalty assessment. (Chavez, supra, at pp. 1292-1293.)
We disagree with defendant and the case of People v. Taylor (2004) 118 Cal.App.4th 454, which held that the state court construction penalty must be reduced depending on whether a county contributes to the local Courthouse Construction Fund or the Transitional State Court Facilities Construction Fund. (Id. at p. 460.) We concur with Chavez that the reduction specified in Government Code section 70375, subdivision (b), refers not to the state court construction penalty but to the funds transferred by a county treasurer to the State Controller as required by Government Code section 70372, subdivision (f).
The People also contend that the trial court should have imposed four separate security assessment fees of $20 pursuant to section 1465.8, subdivision (a)(1). We disagree. The People’s reliance on People v. Schoeb (2005) 132 Cal.App.4th 861 is misplaced. In Schoeb, the defendant pled guilty to nine charges in five separate cases. The imposition of multiple security fees under section 1465.8 for each of the five cases was correct. (Id. at pp. 864-865.) In the instant case, defendant only suffered convictions in one case. There thus was no error by the trial court in imposing a single security fee.
Section 1465.8, subdivision (a)(1), provides: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.”
DISPOSITON
The enhancements imposed under section 186.22, subdivision (b)(1)(A), are reversed. The remainder of the judgment is conditionally reversed and the matter is remanded for the trial court to conduct a section 1538.5 hearing. If, following those proceedings, the judgment is reinstated, the trial court shall impose the following additional penalties: two state construction penalties of $100 pursuant to Government Code section 70371, with one of the penalties stayed; a $50 penalty assessment (§ 1464, subd. (a)) and a $35 penalty assessment (Gov. Code, § 76000) on the $50 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)); a 20 percent state surcharge of $10 on the laboratory analysis fee (§ 1465.7, subds. (a), (b); and state construction penalties of $25 on the laboratory analysis fee, $25 on the section 1464, subdivision (a), penalty assessment, and $17.50 on the Government Code section 76000 penalty assessment, and, as amended, the judgment shall be deemed affirmed as of that date.
We concur:
VOGEL, Acting P. J., ROTHSCHILD, J.