Opinion
F076345
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN LEE VAUGHN, Defendant and Appellant.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF163349A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Kevin Lee Vaughn was charged and convicted of several felony offenses arising out of two different incidents. In the first incident, he failed to comply with officers' orders to disperse when he was part of a large group that had gathered in a public roadway and was convicted of two counts of resisting arrest. In the second incident, a few months later, officers served a search warrant at his residence and found two guns and a large amount of heroin and cocaine base. He was arrested by the same officer he resisted in the first incident and, as his house was searched, he made threatening statements to the officer.
Defendant was convicted of two counts of being a felon in possession of a firearm, possession of cocaine base for sale, possession of heroin for sale, and criminal threats to the officer. The jury found gang enhancements true for the narcotics and firearm offenses, that he committed the offenses for the benefit of the Country Boy Crips criminal street gang. He was sentenced to 44 years eight months in prison.
On appeal, defendant argues his conviction for criminal threats to the arresting officer is not supported by substantial evidence because he was under arrest and not capable of carrying out any possible threats. He also argues the gang enhancements found true for the narcotics and firearms convictions are not supported by substantial evidence because he was not in possession of the contraband for the benefit of a gang.
Defendant contends the court lacked statutory authority to impose a victim restitution order for the officers who were the victims of the resisting and criminal threats convictions. Finally, the parties agree that remand is required for resentencing based on the enactment of amendments to several statutes since his case is not final.
We reverse the gang enhancements (Pen. Code, §186.22, subd. (b)(1)), strike the true findings on the two Health and Safety Code section 11370.2 enhancements, strike the prior prison term enhancements (§ 667.5, subd. (b)), and remand for the court to consider whether to exercise its discretion as to the prior serious felony enhancements (§ 667, subd. (a)) and for resentencing, and otherwise affirm.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS
THE HOLLYWOOD MARKET INCIDENT (Counts 1 , 2, 3)
Around 6:30 p.m. on February 27, 2016, officers with the Bakersfield Police Department's gang unit responded to the Hollywood Market because approximately 80 to 100 people were outside the business. They were drinking alcoholic beverages and walking in the street.
The market was in the territory of the Country Boy Crips. At trial, officers testified to their personal knowledge that the market was a known hangout for members of that gang and a "hot bed" for gang activity.
We will discuss the gang evidence in greater detail below.
The officers directed the people in the street to clear the roadway. Many of the people dispersed and went into nearby residences.
Officers Lorena Vasquez and Jesse Perez used their patrol car to block the street. Vasquez got out of the car and directed the remaining people to disperse.
Officers Vasquez and Perez testified a man, later identified as defendant, walked into the roadway toward Vasquez. He was holding a glass beer bottle. Defendant drank from the bottle and approached Vasquez.
Officer Vasquez ordered defendant to put down the bottle and place his hands behind his head. Defendant refused and yelled and cursed her. Vasquez testified that she grabbed his right arm to place him in handcuffs because he was consuming alcohol in public and not obeying her orders.
Defendant said, " 'F[**]k you,' " and raised the bottle over his head with his left arm. Officer Perez, who was standing behind Officer Vasquez, testified defendant was very loud and appeared to be mocking the officers and trying to start a confrontation. Vasquez continued to order defendant to put his hands over his head.
Officer Perez believed defendant was about to throw something at Officer Vasquez. Perez ran towards Vasquez's position and tackled defendant to the ground. Defendant fell on his stomach. Vasquez also went down since she was trying to hold defendant's arm. Officer Romero also arrived to assist and put his knee in defendant's back to subdue him. Perez ordered defendant to stop resisting and put his hands behind his back. Defendant failed to comply with the orders and kept moving his body. Perez described the encounter as a "tug of war."
Defendant's arm was briefly behind his back, but he moved his arm away and continued to struggle with Officers Perez and Romero. Perez grabbed defendant's right arm and punched him in the face three times. Romero also punched defendant. Defendant tried to bite Perez's finger; his teeth cut into Perez's finger and it started to bleed.
At trial, the prosecution introduced a photograph of Officer Perez's left hand, that showed "a chuck of skin" missing from the knuckle of his middle finger.
Officer Perez used his knee to hit defendant's shoulder and then administered pepper spray. Defendant stopped struggling, and Perez placed his right arm behind his back. However, defendant again started to resist, and Perez again punched him in the face. Perez finally placed defendant in handcuffs and escorted him to the patrol car. Defendant was searched and was not in possession of any weapons or contraband.
Terrell Bishop and Shannon Ruffin were also taken into custody for failing to disperse. Defendant's statements
As will be explained below, the prosecution introduced evidence that both Bishop and Ruffin were members of the Country Boy Crips.
Officer Vasquez testified that she drove defendant to the police department after he was taken into custody outside the market. During the drive, defendant said to her, "[T]hank you. I've sued the city before and I've won. I'm going to sue you guys this time again." Defendant was smiling and sarcastic when he made this statement. Charges and convictions
Based on the incident at Hollywood Market, defendant was charged with count 1, assault with a deadly weapon, a beer bottle, on Officer Vasquez (§ 245, subd. (c)). He was found not guilty of this count.
Defendant was charged and convicted of counts 2 and 3, unlawfully resisting by force or violence an executive officer in the performance of his/her duty, as to, respectively, Officers Vasquez and Perez (§ 69). There were gang enhancements alleged for each count, and the jury found the enhancements were not true.
SEARCH OF DEFENDANT'S HOUSE (Counts 3-8)
At 10:26 p.m. on April 22, 2016, officers from the same gang unit served a search warrant at defendant's residence on Adams Street in Bakersfield. Defendant was not present when the officers arrived.
The supervising officer instructed Officer Vasquez and other team members to go to a bar to look for defendant. Vasquez entered the bar and recognized defendant from the recent encounter at Hollywood Market. Vasquez arrested defendant, and he was taken into custody without incident. He was not found in possession of any contraband.
As Officer Vasquez escorted defendant to the patrol car, defendant said, "[D]on't touch me." Vasquez testified defendant was not happy that she was the officer who placed him in handcuffs because of the prior incident.
Officers Vasquez and Ornelas drove defendant to the house while the other officers conducted the search. They parked the patrol car in front of the house, and defendant remained in the car while the search was completed. Search of defendant's house and garage
When the search team initially arrived at the house, Sharee Collins was in the front yard and some juveniles were inside. The officers cleared the residence and searched the home and a car parked in the driveway. There was a pill bottle in the car, and it contained live .22-caliber bullets.
In the master bedroom, the officers found men's clothing and mail addressed to defendant. There was no powder blue clothing or gang paraphernalia found at the house.
The prosecution's gang expert testified the County Boy Crips claimed the color powder blue.
A loaded .38-caliber Smith and Wesson revolver was found between the mattresses in the master bedroom. A Jennings .22-caliber semiautomatic pistol was found inside a sock in that bedroom's closet. There was black tape wrapped around the handle that would make it difficult to find fingerprints on the weapon.
A box of ammunition was found in the garage, and it contained three live rounds of .40-caliber ammunition.
Also, in the garage, the officers found two functioning digital scales and a 24-ounce iced tea can that was just under a foot tall. The can had a false top, and it contained three plastic bags of narcotics. One bag contained approximately 15.5 grams of rock cocaine, the second bag had two grams of rock cocaine, and the third bag had 7.5 grams of heroin. Defendant's statements to Officer Vasquez (Count 8)
Officer Vasquez testified she stayed in the patrol car with defendant while the officers completed the search of the house. While they were still parked in front of the house, Vasquez testified defendant began laughing and told her, " 'I know where you're from.' " Vasquez asked what he meant. Defendant responded, " 'It's 15 minutes away from here.' " Vasquez again asked him what he meant. Defendant said that he knew Vasquez was from a specific community and named that area. Vasquez asked how he knew that, and defendant said, "[S]omeone that is related to you drove me by your parents [sic] house."
Officer Vasquez testified defendant was laughing when he initially made these statements, but he turned serious as he continued to talk to her. Defendant's demeanor was more serious than when she arrested him at Hollywood Market. Vasquez testified defendant's statements scared her, and she was afraid he might harm her family because defendant was a self-admitted member of the Country Boy Crips, and the officers had just found firearms while searching his residence.
After the house was searched, Officers Vasquez and Clark drove defendant to the jail. Vasquez testified that during the drive, defendant made additional statements to her and said, " 'Just like you can get on your computer and research me. I can do the same thing.' " Defendant said he knew Vasquez lived with her husband and child. Defendant also told her, in an "angry" demeanor, " 'You want to f[**]k with me, I can f[**]k with you too.' " He called her a "bitch" three times, and again said, "f[**]k you." Defendant added, " '[Y]ou're going to find out what I mean, bitch, when I get out.' "
Officer Vasquez testified defendant "seemed more serious about what he was saying" as he made these statements during the drive to the jail.
Officer Clark testified that he heard defendant's statements in the patrol car. Clark testified defendant told Officer Vasquez that he was familiar with her, and he knew where she was from, where her family was from, where they lived, and "essentially that he was going to get even with her." Officer Clark testified that Vasquez was "scared" and "extremely angry. She was completely confused how he knew that information about her." Officer Vasquez's testimony about defendant's statements
Officer Vasquez testified that when she heard the "totality" of defendant's statements, she believed defendant was being serious, and she was afraid for "my safety and my family's safety," and that he "might go out there and harm them."
After taking defendant to the jail, Officer Vasquez reported defendant's statements to Officer Jeffries, and said she was afraid for her family's safety because defendant had just been arrested, and he had firearms. She did not refer to defendant being a gang member. Officer Jeffries testified Vasquez "seemed very concerned and a little scared by the statements that were made to her."
Officer Vasquez testified defendant's threats had an impact on her, and "[i]t was something personal that he threatened my family, and it is something that I'm not going to forget." Vasquez knew defendant was a member of the Country Boy Crips, and testified, "I deal with gang members on a daily basis. I know what they do. Having an actual gang member make threats toward my family and myself was something that I took very seriously." Defendant's telephone calls from jail
On April 23, 2016, the day after the house was searched and he was arrested, defendant called Sharee Collins from jail. The prosecution introduced a recording of the call.
Collins complained about the house being searched and said everything was messed up. Defendant asked Collins to check if the search warrant was signed. Collins said they left a list of things they kept after the search, including ammunition, a revolver in the bedroom, another firearm, scales, the drink can, and cocaine. Defendant told Collins to go into the garage. Collins said the door had been drilled shut. Defendant told her to get a screwdriver and crack open the screws. Collins said they had taken the drugs in the can. Defendant told her get something out of a car and get it out of there.
On April 25, 2016, defendant again called Collins from jail. Defendant said he wished Collins had been "on your toes," and then he would not be in jail, and "you would have already been out." Collins complained she had told defendant to put his family first and "then we wouldn't even be in this situation." Collins said defendant previously told her that he did not want her in his business, but now he wanted her involved. Defendant said "that thang" [sic] was for home protection. Expert testimony about the drugs
Officer Ryan Clark, who participated in the search of the house, testified as the prosecution's expert on narcotics sales and gang activity. Clark testified that a usable amount of cocaine base was 0.1 grams, and a usable amount of heroin was 0.1 to 0.2 grams. In his opinion, the cocaine and heroin found in the garage were possessed for sale based on the large amount, the digital scales, and absence of any smoking devices, syringes, or other narcotics paraphernalia. Clark testified the firearms were also consistent with offensive or defensive use for street-level sales and, as will be discussed below, with gang activity. Charges and convictions
Based on the search of the house, and his statements to Officer Vasquez, defendant was charged and convicted of the following offenses:
Counts 4 and 5: felon in possession of a firearm based on, respectively, the .22-caliber firearm and the .38-caliber firearm found in the master bedroom (§ 29800, subd. (a)(1));
Count 6: possession of cocaine base for sale (Health & Saf. Code, § 11351.5)
Count 7: possession of heroin for sale (Health & Saf. Code, § 11351); and
Count 8: criminal threats to Officer Vasquez (§ 422).
There were gang enhancements alleged for each count. The jury found the gang enhancements true for count 4, 5, 6, and 7. The gang enhancement was found not true for count 8, criminal threats.
GANG EVIDENCE
The prosecution's evidence about the gang enhancements was based on the testimony of an expert, stipulations, and extensive testimony from other officers about their direct contacts with defendant and/or other members of the County Boy Crips. The expert's testimony
Officer Clark of the police department's gang unit testified as the prosecution's expert on the Country Boy Crips, and about his personal knowledge of the gang and its territory, which included the Hollywood Market; his personal contacts with that gang's members; the symbols and hand-signs used by members to claim association with the gang; and that it claimed the color of powder blue. The Country Boy Crips and West Side Crips were allied against their common rival, the East Side Crips. Stipulations
The jury received the following stipulations about the gang evidence.
The Country Boy Crips are an active criminal street gang in Bakersfield and active during the relevant time period. The gang engaged in a pattern of criminal activity as defined by law, and its primary criminal activities were criminal threats, illegal possession of firearms, sales of firearms, murder, robbery, assault with deadly weapons, narcotics and marijuana sales, witness intimidation, burglary, and possession of stolen property.
It was further stipulated that defendant knew members of the Country Boy Crips and had knowledge of the gang's criminal activities. Prior contacts with defendant and his associates
The prosecution introduced testimony from numerous law enforcement officers assigned to the police department's gang unit about their direct personal contacts with defendant and members of the Country Boy Crips between 2003 and 2016, just before the two incidents in this case. The court admitted evidence about defendant's prior drug sales as relevant to show intent under Evidence Code section 1101, subdivision (b) for the possession for sale charges. The court also admitted the testimony of officers about their prior contacts with known members of the Country Boy Crips, who were later seen with defendant during other encounters and the Hollywood Market incident. The court admitted this evidence as relevant to support the gang enhancements.
An expert cannot "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (People v. Sanchez (2016) 63 Cal.4th 665, 686.) The prosecution called multiple officers to testify about their personal contacts with defendant and other gang members, and then Officer Clark testified about his opinions based on these prior incidents; defendant has not challenged the admissibility of this evidence or Clark's opinion testimony.
"In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b), to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs. [Citation.]" (People v. Williams (2009) 170 Cal.App.4th 587, 607.)
The court admitted the officers' testimony about their contacts with other members of the Country Boy Crips, which was introduced to explain the significance of defendant's subsequent association with these same individuals and primarily relevant to prove the gang enhancements attached to the charges based on the Hollywood Market incident. The jury found those allegations not true. Given the jury's findings, and this court's decision that the remaining gang enhancements are not supported by substantial evidence, we will not address this evidence in detail.
While defendant argues the gang enhancements are not supported by substantial evidence, he has not challenged the court's decision to admit the evidence discussed herein.
Officer Clark, as the prosecution's gang expert, reviewed the trial testimony of the officers about these contacts with defendant and other individuals. As we will explain below, Clark testified to his opinion about the significance of each incident as the basis for his opinion about why the gang enhancements should be found true in this case.
2003-2006
In August 2003, two officers contacted defendant and talked with him about "being out in the country." Defendant "basically said I can't get away from it."
Officer Clark testified defendant was in the traditional territory of the Country Boy Crips during this incident.
At 2:00 a.m. on August 22, 2004, officers responded to a dispatch about two armed men in front of an apartment complex. Defendant ran from the area and threw away a plastic bag. Defendant was arrested and the plastic bag was recovered. It contained 31 individual rocks of cocaine. Defendant had cash in small denominations, consistent with selling $10 to $20 amounts of rock cocaine. The officers determined defendant was selling drugs in the apartment building's drive-through parking area.
Officer Clark testified to his opinion that defendant was selling drugs within the territory of the Country Boy Crips.
2007-2010
On April 13, 2007, Officer Ursery saw defendant with a known member of the Country Boy Crips in front of a convenience store.
On the morning of May 7, 2007, Officer Stratton contacted defendant and Robert Porter, who were standing together in front of a residence. Stratton had observed activities consistent with curbside drug transactions. Stratton had prior contacts with Porter, who had previously talked about his affiliation with the Country Boy Crips. Stratton was also aware that defendant was prohibited from associating with anyone from the Country Boy Crips. Both defendant and Porter were arrested. Defendant had $630 in small and large denominations. Defendant said he was no longer a member of the Country Boy Crips, and he had stopped "gang banging" several years earlier.
Officer Clark testified defendant was in the territory of the Country Boy Crips, and Porter was known to be affiliated with the gang.
On May 10, 2008, Detective Yoon contacted defendant during a traffic stop. Defendant had cash in small denominations. Defendant was taken into custody, placed in handcuffs, and seated in the back of a patrol car. Officer Yoon drove defendant to an apartment that he was associated with. During the drive, Yoon realized defendant had moved his hands around, produced a cell phone, and was talking to someone. Defendant told that person, "[T]he police got me. They are going to your place. Get the shit in the shoebox. Yeah. Get rid of it." When they arrived at the apartment, Detective Yoon met with Sharee Collins. Collins said she had retrieved a tin box that contained 15 grams of marijuana and discarded it in a dumpster as directed by defendant.
On the night of January 14, 2009, Officers Eddy and Cooley conducted a traffic stop on defendant's car in an area claimed by the Country Boy Crips. The officers asked defendant if he "was still running" with the Country Boy Crips. Defendant said no, and claimed he was not involved in the gang at all. The officers determined he was living in a different part of town with Sharee Collins. The officers asked defendant why he was driving in that area. Defendant said that "he was a Country Boy," and his moniker was "K.J."
Officer Clark testified this incident was significant because defendant was in the gang's territory, claimed gang membership, and revealed his moniker.
On the night of August 15, 2009, Officers Pflugh and Cooley were on patrol in an area claimed by the Country Boy Crips and followed a vehicle that exceeded the speed limit. The vehicle increased in speed, turned into an apartment complex, suddenly stopped, and the passenger got out and ran away. Defendant was the driver and claimed he did not know the passenger and just gave him a ride. The passenger was not apprehended.
Officer Clark testified this incident occurred in the gang's territory.
On the night of November 25, 2009, Officer Stratton conducted a traffic stop on defendant's car in the territory of the Country Boy Crips. Defendant was wearing a powder blue jacket, consistent with the color claimed by the Country Boy Crips. When asked if he was "still a County Boy," defendant said, "I grew up out here, you can't just stop."
Officer Clark testified this incident was significant because defendant was in the gang's territory and wearing the gang's color.
On the night of December 19, 2009, Officer Kroeker conducted a traffic stop of defendant's car. Defendant was nervous and fidgeting, and admitted he was on parole. Kroeker found $491 in small bills in defendant's pockets. Defendant was searched and found in possession of a small digital scale and 6.3 grams of rock cocaine and said, "[Y]ou got me." Kroeker testified that based on his experience, the drugs were possessed for sale based on the large amount, the digital scale, and the smaller denominations of cash.
Officer Clark testified defendant was not in a gang area, but his possession of the scale and the large amount of drugs was consistent with possession for sale, which is a primary activity of the Country Boy Crips.
2013-2016
On February 13, 2013, Detective Gavin responded to a residence where there was a party with several members of the Country Boy Crips who were memorializing a fellow gang member who had died.
On October 24, 2014, Officer Pear responded to the Hollywood Market because there were numerous people in front of the store and in the roadway drinking alcoholic beverages.
On January 28, 2015, Officer Benavente was on patrol by the Hollywood Market and saw several members of the County Boy Crips there.
On March 28, 2015, Officer Benavente saw several members of the Country Boy Crips at the funeral for a member of an allied gang.
At 2:20 a.m. on July 18, 2015, Officer Malley was at an AM/PM store that was a known hangout for the Country Boy Crips. There were numerous members of the gang in the area.
On February 27, 2016, defendant was arrested and charged in this case for resisting arrest at Hollywood Market, which resulted in his convictions for counts 2 and 3 as set forth above. Defendant was released on bail.
On April 1, 2016, Officer Perez saw defendant in the area between the Hollywood Market and an adjacent residence, also known as the heart of the Country Boy Crips territory. Defendant was drinking alcohol with Terrell Bishop and Darnell Worthy, identified as known members of the Country Boy Crips.
On April 22, 2016, defendant was arrested and charged in this case for the guns and drugs found at this house, and the threats made to Officer Vasquez, resulting in his convictions in counts 4 through 8, as set forth above. The expert's testimony about defendant's gang membership
After the officers testified about their prior contacts with defendant and other members of the gang, Officer Clark resumed the stand and reviewed their testimony, as set forth in the footnotes above. Clark then testified to his opinion that defendant was an active member of the Country Boy Crips in February and April 2016, when the charged offenses occurred in this case, based on defendant's numerous and long term prior contacts and association with the gang and other gang members.
Officer Clark testified defendant had numerous tattoos related to the Country Boy Crips: "805," the old area code for Kern County; "ESK," which meant "East Side Killer," a derogatory term for the East Side Crips, which is the rival to the Country Boy Crips; and "SS," which meant "South Side," referring to the gang's territory.
On cross-examination, Officer Clark conceded that none of defendant's tattoos were visible unless he was not wearing a shirt, and defendant had never been contacted when he was shirtless.
Officer Clark was present when defendant was arrested during the February 27, 2016, incident at Hollywood Market, and identified other people who were there and were known members of the Country Boy Crips. There were also multiple men wearing powder blue clothing, who taunted the officers to shoot.
Officer Clark testified that drugs sales are a primary activity of the Country Boy Crips. Clark participated in the search of defendant's residence on Adams Street on April 22, 2016. Clark testified to his opinion that the large amount of drugs found in the garage was consistent with possession for sale. The two firearms found in the house were consistent with both street-level sales and gang activity.
"[A] member of a criminal street gang, having the firearm would also have it for offensive and defensive reasons. [W]here narcotics sales is an element of a crime that is perpetrated by criminal street gang members, it does make sense that a person would have the firearm for either the personal defense of defending their stash or if a person is trying to rip them off or at the same time using or utilizing that firearm to obtain payment from a person that is, say, late on their dues."
Defendant's residence on Adams Street, where the guns and drugs were found, was located within the traditional boundaries of the Country Boy Crips.
Officer Clark testified that possession of a firearm by a gang member would increase that person's status and respect, to defend themselves against rival gang members, or offensively commit acts on behalf of their gang. Hypothetical questions
On cross-examination, Officer Clark testified defendant had never been found in personal possession of a firearm.
Hollywood Market incident
Based on a hypothetical question, similar to the facts of the February 27, 2016, incident at Hollywood Market charged in counts 1 through 3, Officer Clark testified to his opinion that a member of the Country Boy Crips who resisted arrest would have done so for the benefit, at the direction of, and in association with the Country Boy Crips because that gang member was resisting law enforcement and showed he did not care about law and order; establishing that the gang was the rule in that area and the community should fear the gang and not law enforcement; the gang member resisted while other gang members were present, and they could have supported him; and his conduct would heighten his individual status in the gang and showed other members that he would not back down.
Drugs and guns at the Adams Street house
Based on a hypothetical question that was similar to the discovery of guns and drugs at the house, charged in counts 4 through 7, Officer Clark testified that where the resident was a known and active member of the Country Boy Crips, and that person threatened one of the officers during the incident, the offenses were committed for the benefit of, and at the direction of the Country Boy Crips.
Officer Clark testified that not all gang members sell drugs, but drug sales are "a gang crime due to the fact that the narcotics that are sold within the Country Boy Crips or for any gang for purposes of receiving monetary benefit, that money can be returned to purchase more narcotic[s] to sell more, or the money could be used to purchase firearms illegally or going through straw purchase to acquire firearms that could be used for offensive and defensive purposes."
"Additionally, that money could be returned and given as royalties to older members of the Country Boy Crips to essentially, as I would say is an illegal retirement fund per se. And further on, that you can actually take that money that is acquired and place it on the books of members that are incarcerated, whether you do it yourself or you go through a third party to place the currency on a person's books that is incarcerated. For that, within itself, that does benefit the gang because it is essentially keeping money in a cycle for the Country Boy Crips."
Officer Clark testified his opinion was based on his personal conversations with members of the West Side Crips and Country Boy Crips, who had described drug sales as being "kicked down" for older members or "shot callers" of the gang. Clark further explained that when a gang member has a legitimate job, the gang would not expect him to contribute that income to the gang but would expect it if the gang member was involved in illegal activities.
Officer Clark further testified:
"When you are doing narcotics sales you have to kickback, you have to give back however way you are going to do it within members of the Country Boy Crips, specifically the hierarchy or the older members. And there is an expectation with that to how you spread that money that is acquired."
Officer Clark also testified that the possession of a firearm and live ammunition would be for the benefit of the gang.
"[W]ith firearms in the gang culture they deserve respect. It is a final way that you could commit the ultimate act of violence against a person by taking a life. But in the same way a person is going to be armed that is, say, also selling narcotics. But if that is the place where he's sleeping, if that is the place where he's staying, he's going to stay armed.... But being a gang member in possession of a firearm within itself is a crime.
"... Whether you are going to go about and try and target rival gang members, or you['re] going to go out for the purpose of that person wasn't paid or they didn't pay for their narcotics that they were going to, you know, purchase. They haven't paid on their debt. They can use that firearm for intimidation and fear against a person for the life that they have.
"And ultimately on that, firearm possession by gang members, it puts the community at fear. And with that fear, the gang can still control essentially the attitude that is within the community that they are living."
Threats to Officer Vasquez
In response to a hypothetical question based on the threats to Officer Vasquez, as charged in count 8, Officer Clark testified that threats to an officer in that situation would be for the benefit of the gang.
"By trying to strike fear in an officer, by making credible threats or the allegation of a threat against a person that can leave it so open ended that a person's mind can wander in any type of direction. You are trying to instill fear in the person that protects the citizens. It protects the people against these members that has these firearms. It is a person that is doing a last breath of urgency trying to do whatever he can to still cause fear in people.
"And by that, he is still trying to, with the threats that he is making, benefit the gang because he's trying to ... install [sic] fear in the officers that contact these members of this gang that hold the community at ransom."
DEFENSE EVIDENCE
Tanaia Clemons testified that on February 27, 2016, there was a neighborhood barbeque at the homes located next to the Hollywood Market to celebrate Black History Month; people were walking up and down the street. Clemons said defendant attended the barbeque, and he was standing in a residential driveway and not in the street when the police arrived. She testified defendant threw a can and was surrounded by the police, but she did not see what happened between them.
Angelica Carlisle testified defendant was her husband's cousin, and he had previously lived with her family in 2012 for three or four years. She was never concerned that defendant might have been involved in criminal activities or would do anything that would endanger her children. Carlisle did not know about defendant's criminal record at that time, but her opinion about defendant had not changed since she learned about his record. Defendant's testimony
The parties stipulated defendant had a felony conviction for possession of cocaine base for sale, resulting from the incident when he ran from officers and threw away drugs in 2004; and a felony conviction involving moral turpitude resulting from the incident where he was found with controlled substances in his rear end in 2009.
Defendant testified he grew up in the area considered by the police to be the traditional territory of the Country Boy Crips. He had problems with the law because he was "low income," and it was "easy money." Defendant admitted that in 2003 and 2004, he was an associate of the gang because he associated with other members, but he did not consider himself an active gang member. He got the tattoos when he was younger. He regretted getting the tattoos and could cover them up with his clothes.
Defendant admitted that in 2003, he told an officer that he was "Country" and a "Country Boy," and could not stay away from it. However, defendant only meant he was from that area, and not that he was a member of the Country Boy Crips gang. Defendant knew Darnell Worthy. He recognized Terrell Bishop and admitted he may have been seen with him but testified he did not hang out with him.
Defendant testified he had prior felony convictions for being an accessory in 2003; a conviction involving moral turpitude when he ran from an officer and threw away drugs; and another conviction involving moral turpitude for hiding controlled substances in his rear end.
When defendant was released from custody in 2011, he tried to distance himself from gang members by moving out of the gang's territory and getting a job. Defendant initially lived with his cousin's family, then reconciled with Sharee Collins, who was the mother of his child. Defendant admitted he would return to the gang's territory but only to visit his family and not for gang activities.
Defendant testified that in 2016, he was not an active gang member or associate because he was working and made a good living.
Defendant testified that on February 27, 2016, he was at his aunt's house for a barbeque to celebrate Black History Month. There were around 100 people at the nearby Hollywood Market when the police arrived. Defendant had a beer and was smoking a cigarette on the driveway when Officer Vasquez told him to "put the effing bottle down." Defendant told her to "eff you," and he put his hands up and tried to walk into the house. The officer grabbed him, someone knocked him down, and other people arrived and punched him. He tried to comply with the orders to put his hands behind his back, but he did not have a chance because they were punching and pushing him, and he tried to block the punches to protect himself. He did not bite Perez's finger.
Defendant testified he had lived in the Adams Street house with Collins. He moved out before the police searched the house because he had conflicts with members of Collins's family when they put contraband in the garage. He left behind some clothes and personal belongings. When defendant was detained and taken to the house, he was told about the guns and drugs found inside. He did not know anything about these items and thought they belonged to Collins's family.
Defendant testified that on the day of the search, when he was driven from the bar to the house, the officers asked where he lived and "everybody is participating in this conversation. So the statements that I made, once we made, once we arrived at the house, is statements that was made back and forth." Defendant said he did not want the officers to kick down the door and scare the children in the house. Officer Vasquez told him that the door was not kicked down and the children were fine.
At trial, Officer Vasquez testified defendant spontaneously made his statements in the patrol car, and they were not having a conversation about their families.
Defendant testified he never made any threats to Officer Vasquez, and they were still talking "back and forth." He was speaking "in general" and said "basically I know you have family and that, you know, your family - that would you think about your family if someone just came and kicked in your door. You know, that is what I was telling her about the kids. I didn't want them to go and kick in the door when I know there is kid [sic] in there."
Defendant admitted that he told Officer Vasquez, " '[I]f you are going to eff with me then I'm going to eff with you" and made statements about using a computer. Defendant meant that he was going to pursue a legal action against her for harassment and already used his cell phone to look for the names of lawyers.
After defendant was in jail, he called Collins and asked her to look for contraband in the garage because he thought her brother might have hidden more things. Defendant denied that he wanted Collins to claim the contraband belonged to her so that he would not have been arrested.
CONVICTIONS AND SENTENCE
On May 22, 2017, after a jury trial, defendant was found not guilty of count 1, assault with a deadly weapon, a beer bottle, on Officer Vasquez during the incident at the Hollywood Market.
Defendant was convicted as charged of counts 2 and 3, resisting arrest by force or violence as to, respectively, Officers Vasquez and Perez at Hollywood Market (§ 69). The jury found the gang enhancements alleged for counts 2 and 3 were not true.
Defendant was convicted of the following offenses arising from the search of his house: counts 4 and 5, felon in possession of a firearm based on, respectively, a .22-caliber firearm and a .38-caliber firearm (§ 29800, subd. (a)(1)); count 6, possession of cocaine base for sale (Health & Saf. Code, § 11351.5); count 7, possession of heroin for sale on April 22, 2016 (Health & Saf. Code, § 11351). The jury found the gang enhancements alleged for the guns and narcotics convictions in counts 4 through 7 were true (§ 186.22, subd. (b)(1)).
As to counts 6 and 7, the jury found defendant was personally armed with a firearm during the commission of the offenses (§ 12022, subd. (c)).
Defendant was convicted of count 8, criminal threats to Officer Vasquez, on the day of the search (§ 422). The jury found the gang enhancement was not true for this count.
After a bifurcated hearing, the court found true the on bail enhancements alleged as to counts 4 through 8; and the two enhancements alleged as to counts 6 and 7, possession for sale, that he had prior drug related convictions within the meaning of Health and Safety Code section 11370.2.
As to all counts, the court found true the two prior strike convictions; two prior serious felony enhancements (§ 667, subd. (a)); and four of the five alleged prior prison term enhancements (§ 667.5, subd. (b)). Sentence
The July 14, 2017, minute order states the court found true all enhancements that were alleged, including the five section 667.5, subdivision (b) enhancements. However, the court clearly stated in the reporter's transcript that only four of the five enhancements were true. On remand, the court must correct this error after it resentences defendant.
On September 19, 2017, the court conducted the sentencing hearing and denied probation.
We grant defendant's request for judicial notice of the probation report that was filed with the court prior to the sentencing hearing.
The court granted defendant's request pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and dismissed one prior strike conviction (§ 1385).
Defendant was sentenced to an aggregate second strike sentence of 44 years eight months.
The three-page abstract of judgment correctly states the sentences imposed for each count and enhancement. It erroneously states on page 1 that defendant's aggregate term was 43 years four months, most likely because it did not add the one-year four-month term imposed for count 3 on page 3, which would bring defendant's sentence to 44 years eight months, as stated in the reporter's transcript. On remand, the abstract must be corrected after defendant is resentenced.
As to count 6, the court imposed the second strike upper term of eight years, plus consecutive sentences of four years for the gang enhancement, two consecutive three-year terms for the Health and Safety Code section 1170.2 enhancements, two years for the onbail enhancement, two consecutive five-year terms for the prior serious felony enhancements; and two one-year terms for the prior prison term enhancements. The court stayed the firearm enhancement for count 6.
For the remaining counts, the court imposed consecutive second strike sentences based on one-third the doubled midterms, as follows:
Count 7: two years, plus one year four months for the gang enhancement; and stayed the firearm enhancement;
Count 8: one year four months;
Count 4: one year four months, plus one year four months for the gang enhancement;
Count 5: one year four months, plus one year four months for the gang enhancement;
Count 2: one year four months; and
Count 3: one year four months.
When the court sentenced defendant for count 8, criminal threats to Officer Vasquez, it made the following statements "for purposes of review by any parole board regarding [defendant's] sentence."
"[Count 8] was a [section] 422 committed on the peace officer who had arrested the defendant and had previously been involved in the arrest of the defendant on these counts, and that in the transportation to booking, essentially, the defendant engaged in making criminal threats to the family of the peace officer. This Court does think that that is significant, and it's a significant factor for the parole board when they determine when the defendant is eligible for reviewing his eligibility that this threat was made against a peace officer in the performance of her duties."
As to count 3, resisting arrest by Officer Perez at Hollywood Market (§ 69), the court ordered defendant to pay restitution to Perez for related losses, in an amount to be determined by the probation department and at the direction of the court, pursuant to section 1202.4, subdivision (f).
As to count 8, criminal threats to Officer Vasquez, the court ordered defendant to make restitution to Vasquez in an amount to be determined by the probation department and at the court's direction, for losses incurred pursuant to section 1202.4, subdivision (f)(2). Defendant did not object to the victim restitution orders.
DISCUSSION
I. Substantial Evidence of Criminal Threats
In count 8, defendant was charged and convicted of violating section 422, making criminal threats to Officer Vasquez on April 22, 2016, after she arrested him and he was in the patrol car while the house was being searched, and then taken to jail.
Defendant argues his conviction for criminal threats must be reversed for insufficient evidence because he did not make any express threats, his statements were vague and nonspecific, and the circumstances did not support an inference that he was threatening violence against Officer Vasquez. Defendant further argues there was no immediacy to the alleged threats because he had just been arrested and was being taken to jail, and he faced multiple third strike terms for the guns and drugs found in the house.
A. Substantial Evidence
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - evidence that is reasonable, credible and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
" 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
"The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]" (People v. Kraft, supra, 43 Cal.4th at pp. 1053-1054.) We "must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 396.) "Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal. [Citation.]" (People v. Zamudio, supra, 43 Cal.4th at p. 358.)
B. Section 422
Section 422, subdivision (a), provides, in pertinent part:
"Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished...." (Italics added.)
The statutory language can be divided into five elements the prosecution must prove: "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat - which may be 'made verbally, in writing, or by means of an electronic communication device' - was 'on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228, italics added.)
A single threat of violence against both a victim and his or her immediate family, heard only by the victim, does not constitute multiple offenses under section 422. (People v. Wilson (2015) 234 Cal.App.4th 193, 201.) Thus, while defendant made statements about Officer Vasquez and her family, he was properly charged and convicted of one count based on his statements in the patrol car.
A criminal threat "is a specific and narrow class of communication," and "the expression of an intent to inflict serious evil upon another person. [Citation.]" (In re Ryan D. (2002) 100 Cal.App.4th 854, 863; People v. Wilson (2010) 186 Cal.App.4th 789, 805 (Wilson).) "Section 422 was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others. [Citation.]" (People v. Felix (2001) 92 Cal.App.4th 905, 913.)
" 'A threat is sufficiently specific where it threatens death or great bodily injury. A threat is not insufficient simply because it does "not communicate a time or precise manner of execution, section 422 does not require those details to be expressed." [Citation.]' [Citation.] In addition, section 422 does not require an intent to actually carry out the threatened crime. [Citation.] Instead, the defendant must intend for the victim to receive and understand the threat, and the threat must be such that it would cause a reasonable person to fear for his or her safety or the safety of his or her immediate family. [Citation.]" (Wilson, supra, 186 Cal.App.4th at p. 806.) "[I]t is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422. [Citation.]" (People v. Butler (2000) 85 Cal.App.4th 745, 753-754.)
" 'While the statute does not require that the violator intend to cause death or serious bodily injury to the victim, not all serious injuries are suffered to the body. The knowing infliction of mental terror is equally deserving of moral condemnation.' [Citation.]" (Wilson, supra, 186 Cal.App.4th a p. 806.)
"While the third element of section 422 also requires the threat to convey ' "a gravity of purpose and an immediate prospect of execution of the threat," ' it 'does not require an immediate ability to carry out the threat. [Citation.]' [Citations.] 'The "immediate prospect of execution" in the context of a conditional threat is obviously to be distinguished from those cases dealing with threats of immediate harm, recognized at the very moment of the threat, such as those which support a defense of duress or necessity. [Citations.]' [Citation.]" (Wilson, supra, 186 Cal.App.4th at p. 807.)
"How are we to understand the requirement that the prospect of execution be immediate, when, as we have seen, threats often have by their very nature some aspect of conditionality: A threat is made to convince the victim to do something 'or else.' [W]e understand the word 'immediate' to mean that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538, fn. omitted; Wilson, supra, 186 Cal.App.4th at p. 807.)
Section 422 does not require the defendant to state details such as the manner and time of execution of the threat. (In re David L. (1991) 234 Cal.App.3d 1655, 1660; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1341.) "Section 422 requires only that the words used be of an immediately threatening nature and convey 'an immediate prospect of execution' ... even though the threatener may have no intent actually to engage in the threatened conduct." (In re David L., supra, 234 Cal.App.3d at p. 1660, italics added in original.)
"[T]he reference to an 'unconditional' threat in section 422 is not absolute." (People v. Bolin (1998) 18 Cal.4th 297, 339.) "With respect to the requirement that a threat be 'so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat,' " the California Supreme Court has explained "that the word 'so' in section 422 meant that ' "unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances ...." ' [Citation.] 'The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.' [Citation.] A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning. [Citation.]" (In re George T. (2004) 33 Cal.4th 620, 635.)
Section 422 also requires that the threat be such as to cause a reasonable person to be in sustained fear for his personal safety. "The statute is specific as to what actions and reactions fall within its definition of a terrorist threat. The phrase to 'cause[] that person reasonably to be in sustained fear for his or her own safety' has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139-1140.) The phrase "sustained fear" has been defined as a period of time "that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156; People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.) "Fifteen minutes of fear ... is more than sufficient to constitute 'sustained' fear ...." (People v. Allen, supra, at p. 1156, fn. omitted.) The victim's knowledge "of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear. [Citation.]" (Ibid.)
"A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning. [Citation.]" (In re George T., supra, 33 Cal.4th at p. 635.) "[T]he determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone. The parties' history can also be considered as one of the relevant circumstances. [Citations.]" (People v. Mendoza, supra, 59 Cal.App.4th at p. 1340; People v. Gaut (2002) 95 Cal.App.4th 1425, 1431 (Gaut); People v. Mosley (2007) 155 Cal.App.4th 313, 324 (Mosley).)
C. Threats in Custodial Situations
The fact that a defendant is under arrest, in jail, or even in a state prison does not foreclose a conviction for criminal threats.
In Gaut, supra, 95 Cal.App.4th 1425, the defendant had a history of committing acts of domestic violence and threatening prior girlfriends. He was taken into custody for violating a restraining order and threatening his current girlfriend. While he was in jail waiting for a parole hearing, he called his current girlfriend several times and said she was going to die. The defendant was convicted of making criminal threats based on the telephone calls from jail. (Id. at pp. 1428-1431.)
Gaut rejected the defendant's argument that his telephonic threats did not convey an immediate prospect of execution simply because he was incarcerated and unable to carry out the threats when he made the calls. (Gaut, supra, 95 Cal.App.4th at p. 1431.) Gaut held the nature of the defendant's threats had to be viewed based on his history of domestic violence against the victim and in his prior relationships. In addition, the telephone threats preceded his imminent parole hearing, and he told the victim that he was going to be released in a few days. (Id. pp. 1431-1432.)
In People v. Mosley, supra, 155 Cal.App.4th 313, the defendant was convicted of multiple counts of making criminal threats to several correctional officers while he was an inmate in county jail. The defendant boasted to one officer that he was going to use a telephone while in a courthouse lockup facility, obtain the officer's contact information from DMV, and pass that information to his gang associates so they could kill the officer and rape his wife. The defendant told another officer that he was going to do the same thing that another inmate did, which was to get the officer's personal information from DMV so he could have the officer attacked. (Id. at pp. 315-318.) The defendant repeatedly talked to other officers about the recent murder of an officer at another custodial facility, said that killer was in his same gang, and said that he was going to slice up an officer himself. The defendant also bragged that he knew a particular officer's work schedule and would have someone waiting at his house when he got home. The defendant was repeatedly found in possession of weapons in his cell, and he said he was going to use a razor to attack one of the officers he had repeatedly threatened. The defendant learned how to manipulate the cell door locks, and the officers discovered the metal locking mechanism in his cell was fatigued. The defendant also said he knew how to get information about the officers' home addresses when he was released. (Id. at pp. 315-321.)
Mosley rejected the defendant's argument that "there was insufficient evidence as to the 'immediate prospect of execution' and 'sustained fear' as to the counts in question because at the time he made the threats he was 'an inmate housed in a segregated module.' " (Mosley, supra, 155 Cal.App.4th at p. 323.) Even though the defendant was in custody, "in each instance, the deputies were placed in fear because of defendant's ability to obtain weapons as well as his 'connections' in the gang within the community." (Id. at p. 324.)
In People v. Wilson, supra, 186 Cal.App.4th 789, the defendant was an inmate in state prison and told a correctional officer that he would shoot him when he was released on parole in 10 months: " 'I get out in ten months. I find people. That's what I do, and I'm going to find you, and I'm going to blast you.' " (Id. at p. 798, italics omitted.) Wilson rejected the defendant's contention that his "statements and the surrounding circumstances failed to convey 'a gravity of purpose and immediate prospect of execution to ... the alleged victim' since he was in custody and under the complete control of law enforcement officers when he made the statements." (Id. at p. 815.)
"In contrast to Mosley, there was no evidence that defendant had outside contacts, demonstrated an ability to obtain weapons in prison, or had the apparent means to carry out the threat at that exact moment. Nevertheless, defendant's conviction is supported by substantial evidence because he
unequivocally told [the officer] that he would carry out that threat when he was released from custody in precisely 10 months, thus giving the threat specificity, immediacy, and a date certain. The immediacy of the threat was explicit when defendant said, 'You know, I find people. That's what I do. And I'm going to find you and blast you.' Leaving no doubt, he added, 'I get out in ten months.' The only condition attached to the threat was that defendant intended to carry it out when he was released in 10 months. Defendant effectively made an appointment to kill [the officer] at his earliest possible opportunity - he would perform the act the instant he was set free." (Id. at p. 814.)
D. Analysis
Defendant contends his conviction for criminal threats must be reversed for insufficient evidence that his statements to Officer Vasquez constituted "a threat to commit a crime resulting in death or great bodily injury." Defendant contends his statements were "equivocal and nonspecific," "vague and did not denote violence," and only amounted to saying that "he was going to mess with [Officer Vasquez] in an unspecified way."
These arguments are meritless. There is overwhelming evidence that defendant's statements to Officer Vasquez, taken in context, constituted criminal threats in violation of section 422. Defendant had already encountered Vasquez when she tried to take him into custody during the Hollywood Market incident, and he told her sarcastically that he was going to sue the police department. On the day of the search, when Vasquez found defendant at the bar, he showed that he was not happy that Vasquez was taking him into custody again and told her not to touch him.
As defendant waited in the patrol car while his house was being searched, he immediately advised Officer Vasquez that he knew where she was from and gave the specific name of the community and time it would take to reach that location. His statements appeared to be spontaneous since Vasquez testified that they had not been talking about their families or any other topic. When Vasquez asked how he knew this information, defendant said "[S]omeone that is related to you drove me by your parents [sic] house."
When defendant was driven to the jail, he continued to taunt Officer Vasquez and assured her that he could "research" her, just like the police could use a computer to conduct research about him, and said he knew she lived with her husband and child. He then began to curse her: " 'You want to f[**]k with me, I can f[**]k with you too' " and added, " '[Y]ou're going to find out what I mean, bitch, when I get out.' " Vasquez testified defendant was serious when he made these statements, and she was immediately fearful for herself and her family, since she knew he was a gang member and guns had been found during the search of his house.
Defendant's statements were clearly criminal threats within the meaning of section 422. He already knew Officer Vasquez from the Hollywood Market incident in February, and he was not pleased she was arresting him again in April. Defendant's initial statements show that in the period after his arrest at Hollywood Market, he had sought out information about Vasquez's personal life and was prepared to threaten her on their next encounter. Indeed, he claimed that one of her own relatives gave him information about her family, and bragged that he had already conducted his own "research" and knew where her family lived, who lived with her, the precise location of her family's house, and that he was ready to do something " 'when I get out.' "
Defendant argues his statements were ambiguous and did not constitute threats. In making this argument, defendant focuses on his use of the word "f[**]k," cites to various dictionary and slang definitions of the word, and asserts that the word has not been interpreted as a threat in other cases. However, none of the cases cited by defendant held that a person's use of this word did not constitute a criminal threat as defined by section 422. (People v. Bemore (2000) 22 Cal.4th 809, 829 [defendant cursed victim during crime; conviction for capital murder affirmed]; People v. Forest (2017) 16 Cal.App.5th 1099, 1104 [conviction for assault with a deadly weapon; defendant told victim not to " 'mess' " or " 'f[**k]' " with him before he attacked him; opinion addressed unrelated petition for writ of corum nobis]; People v. Byrd (2016) 1 Cal.App.5th 1219, 1228 (conc. opn. by Hull, J. [convictions for murder and fleeing an officer with wanton/willful disregard; conviction for fleeing reversed for insufficient evidence; citation is to defendant's testimony that when he said that he did not want to "f[**]k" with the officers, he meant that he did not want to "mess" with them; People v. Thomas (2013) 218 Cal.App.4th 630, 640 [murder conviction reversed for instructional error; evidence that defendant cursed victim but not relevant to error]; People v. Flores (2009) 176 Cal.App.4th 1171, 1174 [the defendant swore at his girlfriend and assaulted her; domestic violence conviction affirmed]; People v. Spencer (1996) 51 Cal.App.4th 1208, 1213 [the defendant convicted of manslaughter; evidence introduced that he cursed victim before firing].)
We further note that otherwise innocuous language has been found to constitute a violation of section 422 if the words are understood as a threat of harm when looking at the circumstances and defendant's conduct. (People v. Mendoza, supra, 59 Cal.App.4th at p. 1340.) "The jury is 'free to interpret the words spoken from all of the surrounding circumstances of the case.' [Citation.]" (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433.) There is substantial evidence that he was threatening Officer Vasquez given the entirety of the circumstances including their prior contact, his obvious efforts to find out information about her after that first arrest, and the context in which he used those words after the second arrest.
Defendant argues there was no immediacy to his alleged threats and his statements were conditional simply because he was being taken to jail and faced multiple third strike terms, since he said Vasquez was going to " 'find out what I mean, bitch, when I get out.' " Defendant asserts he had "no prospect [of] being released and causing harm to [Officer Vasquez] within a time frame which could be described as immediate" when he made the statements to her.
To the contrary, defendant's arrest did not undermine the immediacy of his threats. As discussed in Gaut, Mosley, and Wilson, a custodial inmate may be convicted of violating section 422 based on the nature and circumstances of the threat. Defendant was arrested as his house was being searched. The possibility that he faced multiple offenses and had two prior strike convictions did not mitigate the immediacy of the threats because he had just been arrested. There was no certainty that he would remain in custody. Defendant's statements to Collins, during the telephone calls immediately after his arrest and threats to Officer Vasquez, showed that he was immediately trying to find a way to get out of custody. He asked if the officers had presented a signed copy of the search warrant. He implied that Collins should have claimed responsibility for the contraband and, if she did, she would have been out of jail by then. Moreover, he insisted at trial that the guns and drugs did not belong to him, he was not living at the house at the time of the search, and he moved out because Collins's family allegedly placed the contraband in the garage.
We thus conclude defendant's conviction for criminal threats to Officer Vasquez is supported by substantial evidence.
II. Insufficient Evidence of the Gang Enhancements
Based on the contraband found during the search of defendant's house, he was charged and convicted of four felonies: counts 4 and 5, being a felon in possession of firearms, based on the .22-caliber and .38-caliber firearms found in the bedroom; and counts 6 and 7, possession of cocaine base for sale and possession of heroin for sale.
While gang enhancements were alleged for all the charges in this case, the jury found gang enhancements true only for these four counts, and not true for the other convictions.
The jury found the gang enhancements were not true for counts 2 and 3, resisting arrest as to Officer Vasquez and Officer Perez at Hollywood Market; and count 8, criminal threats to Vasquez on the day of the search.
Defendant argues there is insufficient evidence to show he possessed the drugs and guns for the benefit, at the direction of, or in association with a gang, or for the specific intent to promote criminal conduct by other gang members. Defendant argues the prosecution's evidence only showed his previous association with the Country Boy Crips, there was no evidence he was a member or associate of the gang at the time the house was searched, and there was no evidence he possessed the guns and the drugs for the benefit of the gang or to assist the criminal conduct of other gang member. We agree and reverse the jury's true findings on the gang enhancements.
A. Section 186.22 , Subdivision (b)
"To subject a defendant to a gang enhancement [citation], the prosecution must prove that the underlying crime was 'committed for the benefit of, at the direction of, or in association with any criminal street gang' (the gang-related prong), 'with the specific intent to promote, further, or assist in any criminal conduct by gang members' (the specific intent prong). [Citations.]" (People v. Rios (2013) 222 Cal.App.4th 542, 564 (Rios).) "In deciding whether substantial evidence supports both prongs, we apply the familiar standard of review for challenges to the sufficiency of the evidence. [Citation.]" (People v. Perez (2017) 18 Cal.App.5th 598, 607.)
" 'In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a 'pattern of criminal gang activity' by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called 'predicate offenses') during the statutorily defined period. [Citations.]' [Citation.]" (Rios, supra, 222 Cal.App.4th at p. 555, fn. 10.) Defendant's appellate challenges are to the gang-related and specific intent prongs of the gang enhancement; he does not challenge the sufficiency of the evidence to support the other elements.
"The prosecution need not show that the defendant is an active or current member of the gang. [Citation.] Certainly, 'gang membership is not an element of the gang enhancement [citation], [but] evidence of defendant's membership [can] bolster[] the prosecution's theory that he acted with intent to benefit his gang, an element it was required to prove.' [Citation.]" (People v. Roberts (2017) 13 Cal.App.5th 565, 572.)
"The enhancement under section 186.22(b)(1) punishes gang-related conduct, i.e., felonies committed with the specific intent to benefit, further, or promote the gang. [Citation.] However, '[n]ot every crime committed by gang members is related to a gang.' [Citation.]" (People v. Rodriguez (2012) 55 Cal.4th 1125, 1138; Rios, supra, 222 Cal.App.4th at p. 561.)
"[T]he section 186.22(b)(1) gang enhancement may be applied to a lone actor." (Rios, supra, 222 Cal.App.4th at p. 564.) "A lone gang member who commits a felony will not go unpunished; he or she will be convicted of the underlying felony. Further, such a gang member would not be protected from having that felony enhanced by section 186.22(b)(1) ... Because the gang enhancement ... requires both that the felony be gang related and that the defendant act with a specific intent to promote, further, or assist the gang, these requirements provide a nexus to gang activity sufficient to alleviate due process concerns. [Citation.]" (People v. Rodriguez, supra, 55 Cal.4th at pp. 1138-1139, fn. omitted; Rios, supra, 222 Cal.App.4th at p. 562.)
As for the specific intent prong, there is no requirement "that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members. [Citations.]" (People v. Albillar (2010) 51 Cal.4th 47, 67.)
For both the gang-related and specific intent prongs of the enhancement, " '[e]vidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.' [Citation.]" (Rios, supra, 222 Cal.App.4th at pp. 567-568; People v. Miranda (2011) 192 Cal.App.4th 398, 411-412; People v. Ewing (2016) 244 Cal.App.4th 359, 379.)
An expert's testimony may assist a jury in determining whether a crime was committed for the benefit of a criminal street gang with the requisite specific intent. (People v. Vang (2011) 52 Cal.4th 1038, 1048; People v. Albillar, supra, 51 Cal.4th at p. 63.) However, a gang expert's testimony alone is insufficient to find an offense gang related. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931.) The jury may reply on "responses to hypothetical questions as circumstantial evidence of defendant's specific intent to promote, further, or assist in any criminal conduct by gang members to support their findings on the gang enhancement as long as those questions were based on the evidence presented at trial. [Citations.]" (Rios, supra, 222 Cal.App.4th at p. 573.) "[T]he record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang." (People v. Martinez (2004) 116 Cal.App.4th 753, 762; People v. Ochoa (2009) 179 Cal.App.4th 650, 657 (Ochoa).)
In Rios, supra, 222 Cal.App.4th 542, the defendant was driving by himself when he was pulled over by the police on a traffic stop, and officers discovered he was driving a stolen vehicle. A gun was hidden under the seat, and gang paraphernalia was also found in the stolen vehicle. When he was booked, the defendant said he was a member of the Norteño gang. (Id. at pp. 545-550, 560.) A gang expert testified that stealing cars and possession of firearms were among the gang's "primary criminal activities," firearms were "status symbols" for gang members, and most Norteños do not commit crimes in their own cars and instead use stolen cars that cannot be traced. The prosecution also introduced evidence of the defendant's prior contacts with police and prior admissions of his gang membership. (Id. at pp. 551-553, 574.)
Rios reversed the gang enhancements attached to the car theft and firearm convictions because the expert testimony was insufficient to support the specific-intent prong. (Rios, supra, 222 Cal.App.4th at pp. 574-575.) "[I]n a case such as this, where the defendant acts alone, the combination of the charged offense and gang membership alone is insufficient to support an inference on the specific intent prong of the gang enhancement. Otherwise, the gang enhancement would be used merely to punish gang membership." (Id. at p. 574.) Rios explained that the gang enhancement alleged against a lone gang member would have been supported by evidence "that another gang member had directed defendant to steal a car to use in a robbery, or that defendant was transporting the loaded gun from one gang member to another to use in a robbery or driveby shooting. There was no such evidence," and the defendant "never admitted that he stole the car or transported the gun to promote, further, or assist in any criminal conduct by gang members." (Id. at pp. 572-573.) "[T]here was no evidence that the gun defendant transported was brandished or shown to anyone or used to intimidate persons in the community," and there was "no evidence that any victim in this case or anyone in the local community knew [the] defendant was a gang member, was affiliated with a gang, or was acting with a gang purpose." (Ibid.)
In Ochoa, supra, 179 Cal.App.4th 650, the defendant was a gang member who acted alone in committing a carjacking with a shotgun. (Id. at pp. 653, 662.) Ochoa held the evidence was insufficient to support the benefit element of the gang enhancements. "[N]othing in the circumstances of the instant offenses sustain[s] the expert witness's inference that they were gang related." (Id. at pp. 661-662.) "[The gang expert's testimony] was based solely on speculation, not evidence. An appellate court cannot affirm a conviction based on speculation, conjecture, guesswork, or supposition." (Id. at p. 663.) "There was no evidence that only gang members committed carjackings or that a gang member could not commit a carjacking for personal benefit, rather than for the benefit of the gang." (Id. at p. 662.) The defendant "did not call out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti while committing the instant offenses. There was no evidence of bragging or graffiti to take credit for the crimes. There was no testimony that the victim saw any of [the] defendant's tattoos. There was no evidence the crimes were committed in [the defendant's] gang territory or the territory of any of its rivals. There was no evidence that the victim of the crimes was a gang member or a ... rival." (Id. at p. 568.)
B. Analysis
Defendant argues the jury's true findings on the gang enhancements must be reversed because there was no evidence he was an active gang member when the contraband was found at his house, or that he possessed the guns or drugs for the benefit of the Country Boy Crips or with the specific intent to further or promote criminal conduct by other gang members.
There is substantial evidence that defendant possessed both the firearms and drugs, and that the drugs were possessed for purposes of sale given the large amount, the scales, and the lack of ingestion paraphernalia. While the prosecution introduced persuasive evidence that defendant was at least an associate of the gang at the time of his arrest, there is insufficient evidence as to both prongs of the gang enhancements found true in this case. The prosecution's extensive evidence about defendant's prior associations with members of the Country Boy Crips included an incident in 2007 when he was arrested for selling drugs with another gang member in the gang's territory. Aside from that incident, almost 10 years before his arrest in this case, there was no other evidence that defendant possessed or sold drugs, or possessed or used firearms, for the gang's benefit or with the specific intent to promote the criminal activity of other gang members.
While defendant's house was in the gang's territory, he was not in the company of other gang members when he was arrested at the bar while his house was being searched, no gang members were at his house when the police arrived to conduct the search, and the officers did not find any gang paraphernalia during the search. As in Rios, the prosecution relied on the expert's testimony to prove both prongs of the gang enhancement. Also as in Rios, however, the expert merely testified that possession of firearms and drug sales were gang-related offenses and provided income to the gang. The expert also offered his opinion that a gang member's profits from drug sales were used as "an illegal retirement fund per se" for imprisoned or older members of the gang. This opinion, however, was offered without any supporting evidence other than the expert's vague reference to conversations with unnamed members of the West Side Crips and Country Boy Crips.
As in Rios and Ochoa, we conclude there is insufficient evidence to support the gang enhancements found true for counts 4, 5, 6, and 7, and the jury's true findings and the terms imposed for those enhancements must be stricken.
III. The Court's Victim Restitution Orders
In count 8, defendant was convicted of violating section 422, criminal threats to Officer Vasquez. When the court imposed the sentence for count 8, it also ordered defendant to make restitution to Vasquez in an amount to be determined by the probation department and at the court's direction, for losses incurred pursuant to section 1202.4, subdivision (f)(2).
In count 3, defendant was convicted of violating section 69, resisting arrest by Officer Perez at Hollywood Market. The court also ordered defendant to pay restitution to Perez for related losses, in an amount to be determined by the probation department and at the direction of the court, pursuant to section 1202.4, subdivision (f).
Defendant did not object to either of these orders. On appeal, however, he asserts the victim restitution orders must be stricken "because there was no evidence that Vasquez and Perez suffered economic losses or that the Victim Compensation Board reimbursed them for any losses," and the court lacked statutory authority to impose the orders in the absence of any evidence of loss. The People contend the orders were valid, there is no evidence that defendant has been ordered to pay any dollar amount of victim restitution under these orders, and defendant would have notice and the opportunity to object before any specific dollar amount is imposed pursuant to the victim restitution orders.
A. Section 1202.4 , Subdivision (f)
"[E]very victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss." (People v. Phelps (1996) 41 Cal.App.4th 946, 950; People v. Riddles (2017) 9 Cal.App.5th 1248, 1252.) The court imposed the victim restitution orders in this case pursuant to section 1202.4, subdivision (f), which states in pertinent part:
"Except as provided in subdivisions (q) and (r), in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution...." (Italics added.)
The categories for which victim restitution may be ordered "includ[e], but [are] not limited to" payment for the value of stolen or damaged property, medical expenses, mental health counseling expenses, lost wages, and noneconomic losses including psychological harm. (§ 1202.4, subds. (f)(3)(A)-(f)(3)(F).) "Because the statute uses the language 'including, but not limited to' these enumerated losses, a trial court may compensate a victim for any economic loss which is proved to be the direct result of the defendant's criminal behavior, even if not specifically enumerated in the statute. [Citation.]" (People v. Keichler (2005) 129 Cal.App.4th 1039, 1046.)
The defendant has a right to a hearing to dispute the amount of victim restitution, and the court "may modify the amount, on its own motion or on the motion of the district attorney, the victim ... or the defendant." (§ 1202.4, subd. (f)(1); People v. Lunsford (1998) 67 Cal.App.4th 901, 903-904.) The standard of proof at a hearing on the amount of victim restitution is preponderance of the evidence and not reasonable doubt. (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1319.)
B. Analysis
Defendant argues the victim restitution orders were unauthorized because the court lacked the statutory authority to order victim restitution in this case. While defendant did not object to the court's orders, we may address this argument because defendant has not forfeited a legal challenge to the court's statutory ability to impose these orders. (People v. Scott (1994) 9 Cal.4th 331, 354.)
"Restitution to the victim is mandatory, although the court retains discretion as to the amount. [Citation.]" (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.) Both Officers Perez and Vasquez were the "victims" of defendant's conduct that resulted in his convictions in, respectively, counts 3 and 8, and the court had the mandatory duty to impose the victim restitution orders. Perez testified that as he attempted to take defendant into custody at Hollywood Market, defendant resisted him and tried to bite his finger. Defendant's teeth cut into Perez's finger and it started to bleed. The prosecution introduced a photograph of Perez's left hand, that showed "a chuck of skin" missing from the knuckle of his middle finger. As for count 8, Vasquez testified that when she heard the "totality" of defendant's threats, she believed defendant was being serious and she was "afraid for my safety and my family's safety." Vasquez was afraid defendant "might go out there and harm them." Vasquez testified defendant's threats had an impact on her, and "[i]t was something personal that he threatened my family, and it is something that I'm not going to forget." Vasquez knew defendant was a member of the Country Boy Crips, and testified, "I deal with gang members on a daily basis. I know what they do. Having an actual gang member make threats toward my family and myself was something that I took very seriously."
The court's restitution orders comply with section 1202.4, subdivision (f) since it directed the probation department to determine the amount of victim restitution pursuant to that order. If defendant is ordered to pay a specific dollar amount and objects to that determination, he may obtain judicial review in accordance with section 1202.4, subdivision (f)(1). (People v. Lunsford, supra, 67 Cal.App.4th at pp. 903-904.)
Finally, the superior court did not order defendant to pay any specific dollar amount of victim restitution at the sentencing hearing, and there is no evidence in the record that any such orders have been imposed consistent with the court's order. If a defendant is eventually ordered to pay a specific amount of victim restitution, he has not forfeited his ability to challenge that amount pursuant to section 1202.4, subdivision (f)(2). (Cf. People v. O'Neal (2004) 122 Cal.App.4th 817, 820; People v. Resendez (1993) 12 Cal.App.4th 98, 113.)
IV. The Prior Serious Felony Enhancements
The court found true the allegations that defendant had two prior serious felony enhancements pursuant to section 667, subdivision (a). As to count 6, the principal term, the court imposed two consecutive five-year terms for both enhancements.
In a supplemental brief, defendant contends the matter must be remanded because of the enactment of Senate Bill No. 1393 (2017-2018 Reg. Sess.), effective January 1, 2019, which amended section 667, subdivision (a) to allow the superior court to exercise its discretion to strike a prior serious felony enhancement. Defendant argues these amendments are retroactive since his case is not yet final, and the matter must be remanded for the superior court to decide whether to exercise its discretion to strike one or both prior serious felony enhancements.
The People concede that Senate Bill No. 1393's amendments to section 667, subdivision (a) are retroactive to defendant's case, and the matter must be remanded for the court to consider whether to exercise its discretion to strike one or both prior serious felony enhancements.
We note that at the sentencing hearing, the court granted defendant's request to dismiss one prior strike conviction and decided not to impose a third strike term. The record does not reflect that remand would be an idle act in this case.
We thus remand the matter for the court to decide whether to exercise its discretion to dismiss one or both prior serious felony enhancements. By remanding the matter, we do not find that the court must strike one or both enhancements, but only that the court must consider whether to exercise its discretion in furtherance of justice pursuant to the newly enacted statutory provisions.
V. The Prior Prison Term Enhancements
The information alleged defendant had five prior prison term enhancements (§ 667.5, subd. (b)). The court found four of the five allegations true. At the sentencing hearing, the court imposed two one-year terms for the prior prison term enhancements.
In another set of supplemental briefs, defendant contends, and the People concede, the matter must be remanded for the court to strike the section 667.5, subdivision (b) prior prison term enhancements found true, and the two one-year terms imposed, based on the enactment of Senate Bill No. 136 (2019-2020 Reg. Sess.), which went into effect on January 1, 2020, and is retroactive since defendant's case is not yet final. The amended statute now limits one-year prior prison term enhancements based on convictions for certain sexually violent offenses, and defendant's underlying prior convictions are not within the provisions of the amended statute. (See People v. Lopez (2019) 42 Cal.App.5th 337, 339; People v. Jennings (2019) 42 Cal.App.5th 664, 667-668.)
On remand, the court shall strike the true findings on the four prior prison term enhancements and the two one-year terms imposed.
VI. The Health and Safety Code Section 11370.2 Enhancements
As to counts 6 and 7, the court found true the allegations that defendant had two prior drug related convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a). As to count 6, the principal term, the court imposed two consecutive three-year terms for these enhancements.
Defendant raises two issues about these enhancements. First, he argues that he is entitled to retroactive application of Senate Bill No. 180 (2017-2018 Reg.Sess.), effective January 1, 2018, which amended section 11370.2 and eliminated enhancements that was based on the underlying convictions in this case. Defendant argues this court must strike both enhancements. In the alternative, defendant argues that if this court does not retroactively apply the amendments enacted by Senate Bill No. 180, we should strike one of the Health and Safety Code section 11370.2 enhancements because they are "status" enhancements.
The People concede that Senate Bill No. 180's amendments to Health and Safety Code section 11370.2 are retroactive since his case is not yet final, and both his prior convictions no longer qualify for imposition of these enhancements. The People further state it is not necessary to address defendant's alternate argument that one of these enhancements must be stricken, and defendant agrees the issue need not be addressed.
While defendant requests this court to strike both enhancements, the People request remand for the superior court to vacate the enhancements, consider its sentencing options, and resentence defendant. Defendant disagrees and asserts remand would be a waste of time and resources since the superior court already imposed the maximum sentence with consecutive upper terms, and this court should simply strike the two enhancements.
Since the matter is already being remanded for the superior court to decide whether to exercise its discretion on the prior serious felony enhancements, we direct the court to also strike the two enhancements imposed under Health and Safety Code section 11370.2 and resentence defendant accordingly.
DISPOSITION
Defendant's motion for judicial notice of the probation report is granted.
The jury's true findings on the gang enhancements for counts 4, 5, 6, and 7 are reversed, and terms imposed for those enhancements stricken.
In addition, the matter is remanded as set forth above for the court to (1) strike its true findings on the four prior prison term enhancements and the two one-year terms imposed for those enhancements; (2) strike its true findings on the two Health and Safety Code section 11370.2 enhancement and the two three-year terms imposed for those enhancements; (3) determine whether to exercise its discretion as to the section 667, subdivision (a) prior serious felony enhancements; (4) resentence defendant accordingly; and (5) correct any errors in the abstract of judgment and prior minute order.
In all other respects, the judgment is affirmed.
POOCHIGIAN, J. WE CONCUR: HILL, P.J. PEÑA, J.