THE PEOPLE v. FELIPE GONZALEZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. FELIPE GONZALEZ, Defendant and Appellant.

B226198

Decided: February 23, 2011

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Felipe Gonzalez appeals from the judgment entered following a jury trial which resulted in his conviction of possession of a firearm by a felon (Pen.Code, § 12021, subd. (a)(1)) 1 and the trial court's findings that he previously had been convicted of a felony for which he served a prison term within five years of a prior felony conviction or prison term (§ 667.5, subd. (b)), and previously had been convicted of a serious or violent felony within the meaning of the “Three Strikes” law (§ 667, subds.(b)-(i);  1170.12, subds. (a)-(d)).  The trial court sentenced Gonzalez to seven years in state prison.   We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

At approximately 7:55 p.m. on February 9, 2009, Los Angeles Police Officer Rene Ponce and his partner, Officer Ruiz, were on patrol in the area of 1st Street and Dacotah.   The officers, who were assigned to the “gang unit,” were in uniform and a marked patrol car.   Ruiz was driving the car and Ponce was in the front passenger seat.   Ponce saw Gonzalez walking toward the officers on 1st Street and, after he and Gonzalez made eye contact, Ponce watched as Gonzalez “made a furtive movement, a quick movement towards his waistband, and then retrieved a handgun from his waistband.”

While the officers illuminated Gonzalez and the area surrounding him with a spotlight, Ponce got out of the patrol car.   As he did so, Gonzalez began to run away from the officers, heading south on Dacotah.   Gonzalez, followed by Ponce, then turned into a driveway.   As he ran after Gonzalez, Ponce, who was continuously ordering Gonzalez to “stop,” could see that he was holding a gun in his right hand.   As he turned into the driveway of the house at 108 South Dacotah, Gonzalez “tossed” the gun approximately eight to 10 feet out onto the driveway.   When he had run approximately half-way up the driveway, Gonzalez “tripped and fell face down.”   Ponce, followed by Ruiz, caught up with Gonzalez and found him lying on the ground with “his hands underneath his body.”   As Ponce and Ruiz attempted to gain control of Gonzalez's arms in order to place him in handcuffs, he cursed at the officers saying, “ ‘Fuck you, homes, I'm not going back.’  “ As the struggle continued, Ponce finally “straddle[d]” Gonzalez's body and, because he was afraid Gonzalez had another weapon, “punched him in the back three times and was able to gain control of his arms․”  After Gonzalez was handcuffed, Ponce noticed a tattoo on the back of his head.   The tattoo read “VNE.”

Ruiz retrieved Gonzalez's gun, a “blue steel nine millimeter semi-automatic handgun,” while Ponce escorted Gonzalez to the patrol car.   The gun was loaded with 12 “live rounds in the magazine and one live round in the chamber.”

During booking, Gonzalez gave as an address 139 Rivera Street.   The address is approximately two blocks from the area where Gonzalez was taken into custody.

In February of 2009, Los Angeles Police Officer Jason Pedro worked with the “Hollenbeck Gang Detectives.”   On February 10th, he was assigned to investigate Gonzalez's case and, as part of his investigation, the officer and several other officers in the gang unit searched the house at 139 South Rivera Street.   Inside a drawer in a bedroom, the officers found several pieces of mail addressed to Gonzalez.   In the same room, officers discovered numerous live rounds of ammunition.   In the basement of the house, the officers found a scope for a rifle, rounds of ammunition for a rifle, a C.D. with a cover that had on it the letters “VNE”, and the monikers of gang members, such as “Chunks,” “Bams” and “Wicked.”

Los Angeles Police Officer Jesse Griego has worked with gangs for the last seven years.   For the last two years he has been “assigned to Hollenbeck Area Gang C.L.E.A.R.,” a “federally funded gang unit assigned to a certain area within [the] Hollenbeck Division.”   In total, Griego estimated he had contacted 2,000 gang members.   He indicated that these “contacts” included approximately 700 arrests, contact with multiple “victims of crimes that [he was] investigating,” and contact with any number of “just guys who know [him] from the street [.]” Griego was familiar with the VNE gang.   He explained that “while working with the C.L.E.A.R. program, [officers are] assigned to five gangs in a certain geographical area.   The gang VNE falls within [Griego's] jurisdiction.”   VNE stands for “Varrio Nuevo Estrada” and has approximately 450 members.   The gang commonly uses the New York Yankees logo as their “identifier.”   Gang members black out portions of the “N” and the “Y” to make the logo appear to spell VNE. The gang, which in English is referred to as the “New Town Gangsters,” is a Hispanic gang with a number of cliques, including “the Tiny Locos, the Diablos, the Tiny Winos, [and] the Sharks.”   Griego is personally acquainted with approximately 120 VNE gang members.   According to Griego, a gang member's primary activities include “[p]ossession of drugs for sale[ ], assaults on officers, possession[ ] of concealed weapons, possession of assault rifles, witness intimidation, robberies, [and] extortion.”   Based on his training, his experience and “interviews with [members of] the community,” it was Griego's opinion that the VNE is a criminal street gang.

Griego believed that an individual walking down the street in the area of 1st and Dacotah with a tattoo of VNE on the back of his head, who admitted that he was a member of VNE, who possessed a firearm for the benefit of the gang, who ran from police, and resisted being taken into custody was a member of VNE and doing “work” for the gang.   Griego explained that “work” entailed performing criminal acts on behalf of the gang “to promote the name of the gang and promote fear within the community.   The fear [gang members] impose on the community is what makes them stronger.”   Griego was also of the opinion that Gonzalez was “crazy.”   Griego indicated that “someone who is crazy, when you're [referring] to somebody on the street, [is] someone who has no regard [ ] for his safety or [the safety of others].   He's not scared of anyone coming up to him or posing ․ any kind of threat.   He doesn't feel he's in danger because ․ he's ‘crazy[.]’ ”

With regard to the fact that Gonzalez was walking in rival gang territory while armed with a firearm, Griego stated, “To rival gang members, it's calling them out․  He's walking up and down in their neighborhood with that tattoo [and] he's calling them out.   He's looking for somebody that ․ [will] catch him slipping;  someone who happens to be there, someone who happens to be in the wrong place at the wrong time.   That's what he's looking for.”

It was stipulated that, on April 4, 2003, “defendant Gonzalez admitted to Deputy D. Battanero ․ that he was an active member of Varrio Nueva Estrada, VNE, [the] criminal street gang, and had been an active member for six years, and [that] he goes by the moniker of Wicked or Lil Wicked.”   It was further stipulated that “on April 27th, 2006, defendant[, Felipe Gonzalez,] spoke with Officer Cedre, ․ and he admitted to [the officer that he belonged] to VNE, and that his moniker was Wicked, and that he tried to no longer hang out in the neighborhood.   Officer Cedre also observed a visible VNE tattoo on the back of [Gonzalez's] head.”   The parties then stipulated that on “November 18, 2003, defendant Gonzalez admitted to possessing a firearm for the benefit of ․ the gang on February 13, 2003, and on March 13th, 2003.”   Finally, it was stipulated that “the defendant did suffer the felony convictions as charged in the People's information.”

Los Angeles Police Officer David Velarde is a forensic print specialist for the Los Angeles Police Department.   In Gonzalez's case, Velarde “conducted a fingerprint comparison from an exemplar to a latent print that was [removed from] the end of a gun frame.”   The latent print was “close to the end of the barrel of the gun, on the left side.”   When Velarde compared the latent print to Gonzalez's prints, he determined that the latent print matched the print of Gonzalez's left middle finger.   Velarde's conclusion was confirmed by two other specialists who independently examined the prints.

2. Procedural history.

Following a preliminary hearing, on September 8, 2009 Gonzalez was charged in an amended information with one count of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1).   With regard to the allegation that he was a felon, it was alleged that, on May 11, 2006, he was convicted of bringing into a prison a controlled substance or paraphernalia intended for use with a controlled substance (§ 4573) and that on November 18, 2003, he possessed a firearm after having been convicted of a felony (§ 12021, subd. (a)).  It was further alleged, pursuant to section 186.22, subdivision (b)(1)(A), that the “offense [of possession of a firearm by a felon] was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.”

It was also alleged that, on May 11, 2006, Gonzalez had been convicted of bringing a controlled substance or drug paraphernalia into a penal institution (§ 4573) and that on November 18, 2003, he had been convicted of being a felon in possession of a firearm (§ 12021, subd. (a)), “and that a [prison] term was served as described in ․ section 667.5[, subdivision (b) ] for said offense(s)․”  Finally, it was alleged pursuant to sections 667, subdivisions (b) to (i) and 1170.12, subdivisions (a) to (d), the Three Strikes law, that Gonzalez had suffered convictions for possession of a firearm by a felon (§ 12021, subd. (a)(1)) and carrying a loaded firearm (§ 12031, subd. (a)(1)).

On October 20, 2009, defense counsel filed a motion to dismiss the information pursuant to section 995.   Counsel argued “there was insufficient evidence produced at the preliminary hearing” to hold Gonzalez to answer.   After indicating that it had read and considered the transcript of the preliminary hearing, the trial court denied the motion.

After the prosecution presented its evidence, defense counsel made a motion for entry of a judgment of acquittal pursuant to section 1118.1 “based on the fact that there [was] no evidence [of] ․ any gang signs, any gang attire [or] any gang language.”   Counsel continued, “He happens to have a tattoo.   It was nighttime.   On top of that, as testified [to], he was basically just walking.   There was nothing unusual about the walk.   He happen[ed] to have a gun in his possession, and that could [have been] for any of number reasons, including self-protection.”   After hearing counsel's argument, the trial court denied the motion.

While the jury was deliberating on the offense alleged in count one, defense counsel indicated that Gonzalez would “waive jury and have a court trial on the priors.”   The prosecutor addressed Gonzalez and stated, “Sir, in this case you have the right to have any prior convictions tried by the same jury that is now deliberating.   You would have the same rights as you've seen at trial.   You have the right to remain silent.   You have the right to have ․ the jury determine whether or not, in fact, those prior allegations are true.   You understand that right, sir?”   Gonzalez responded, “Yes.”

At proceedings held on May 5, 2010, the jury indicated that it wished to have a portion of the transcript read back.   The trial court addressed the jury, stating, “The court reporter who was here Friday generated a transcript, and the current court reporter will read the portions we think are responsive to your questions.   It is the testimony of only one witness, and it may not be the witness that has the information you want.   Only you would be able to tell us.”   After the testimony was read to the jury, the trial court stated, “If there's something else you need, get us a note.   We'll do our best to get it to you․”

Later that day, the jurors indicated that they had reached a verdict, but that they could not “reach a decision regarding the special [gang] allegation.”   The trial court decided to have the jury come out so that it could “find out whether additional instructions or additional read back would assist them in reaching a verdict․”  After the jury had assembled in the court room, the trial court asked the foreperson, “If the court were to ask you to continue your deliberations, do you feel there is a reasonable probability that you might reach a verdict as to that allegation?”   The foreperson replied, “I do not believe so, sir.”   When the trial court then asked if there were any other instructions which could be given or evidence which could be read back which would assist the jury in making a decision, the foreperson again responded, “No, sir.”   When, in response to the trial court's inquiry, the foreperson indicated that the jury had voted four times on the special allegation, the trial court polled the jury, asking each individual if he or she believed the jury was deadlocked on the question.   After all 12 jurors agreed that they had reached an impasse, the trial court declared “a mistrial as to the [section 186.22, subdivision (b)(1)(A) ] allegation.”

As to the allegation in count one, the jury found Gonzalez “guilty of the crime of possession of a firearm by a felon in violation of ․ section 12021[, subdivision (a)(1) ], a felony․”  After the jurors were polled, and each one answered that this was his or her verdict, the trial court thanked and excused them.

At proceedings held on July 7, 2010, the People presented evidence of Gonzalez's prior convictions.   The trial court then found true the allegations that Gonzalez “was convicted of ․ section 4573 on May 11, 2006, ․ [and] that he was convicted of ․ section 12021[, subdivision] (a) on November 18, 2003․”

Defense counsel submitted a motion requesting that one or both prior convictions alleged pursuant to the Three Strikes law be dismissed pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.2  Counsel argued that “the two prior strikes ar[o]se out of the same set of facts, case and conviction.”   In response, the prosecutor stated, “[I]t's our office's position that we do not ask for a third strike sentence in cases in which it is a non-violent offense as it is here.   The charged offenses do occur on the same dates, and that leads me to believe that it is arising out of the same arrest and so forth.   I would just ask [that] one of the strikes not be stricken and the defendant be sentenced as a second striker and that the court give the defendant an additional and consecutive one year for the prison prior and sentence him to the high term on count 1[,]” for a total sentence of seven years.

The trial court indicated that it would “strike one of the strikes,” the violation of section 12031, subdivision (a)(1), and treat the matter as a “second strike case.”   Gonzalez then personally addressed the court and stated that he had been unaware of the fact that he had “strikes” and that he had been working and paying taxes since he had last been released from prison.   Gonzalez requested that the trial court strike both of his strikes “because he [had] not been involved in any violence to another human being.”

After stating that it did not think it was appropriate to strike both priors in view of the history of crime Gonzalez had accumulated and the fact that it had not been very long since he had last been in “trouble” with the law, the trial court sentenced Gonzalez to the upper term of three years in state prison for his conviction of possession of a firearm by a felon, then doubled the term to six years pursuant to the Three Strikes law.   For the finding that he had suffered a prior conviction and prison term pursuant to section 667.5, subdivision (b), the trial court imposed an additional year, for a total term of seven years in prison.

Gonzalez was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine (§ 1202.45), a $30 criminal conviction assessment (Gov.Code, § 70373) and a $30 court security fee (§ 1465.8, subd. (a)(1)).   Gonzalez was awarded presentence custody credit for 249 days actually served and 124 days of good time/work time, or a total of 373 days.3

Gonzalez filed a timely notice of appeal on July 16, 2010.

This court appointed counsel to represent Gonzalez on appeal on October 8, 2010.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed December 10, 2010, the clerk of this court advised Gonzalez to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider.   On January 7, 2011, Gonzalez filed a supplemental brief in which he stated that, when he entered a plea in 2003, he was not informed of the fact that he was admitting a “strike.”   He now asserts that, since “there was no actual violence to any human being on this case or the 2003 case or any of [his] cases,” the strike should be stricken and his sentence should be reduced.

“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to ․ section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.   If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.”  (People v. Williams (1998) 17 Cal.4th 148, 161.)

Here, although as Gonzalez asserts there was no “actual violence” and no one suffered physical harm as a result of his possession of a firearm, the trial court nevertheless properly determined that Gonzalez's history of crime precluded it from striking both of his priors.   A review of Gonzalez's record indicates that it had been only three years since he had been convicted of bringing into a penal institution a controlled substance or paraphernalia in violation of section 4573, and three years prior to that when he had possessed a firearm after having been convicted of a felony in violation of section 12021, subdivision (a).   Under these circumstances, it cannot be said that Gonzalez “may be deemed outside the [Three Strikes] scheme's spirit ․ and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies․”  (Ibid.) The fact that Gonzalez's prior and present convictions were not for violent felonies supports the trial court's action in striking one of his two priors.   However, the trial court properly concluded that Gonzalez's history of criminal behavior precluded it from striking both prior felony convictions.  (Ibid.)

REVIEW ON APPEAL

We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities.  (Smith v. Robbins (2000) 528 U.S. 259, 278-284;  People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. It had been stipulated that Gonzalez had suffered the prior “strike” convictions, one for section 12021, subdivision (a)(1) and one for section 12031, subdivision (a)(1)..  FN2. It had been stipulated that Gonzalez had suffered the prior “strike” convictions, one for section 12021, subdivision (a)(1) and one for section 12031, subdivision (a)(1).

FN3. On December 14, 2010, Gonzalez's appellate counsel filed in the trial court a motion for correction of Gonzalez's presentence custody credits Counsel asserted Gonzalez served 514 days from his February 9, 2009, arrest to his July 7, 2010, sentencing.   Accordingly, he is entitled to presentence custody credit for 514 days actually served and 257 days of good time/work time..  FN3. On December 14, 2010, Gonzalez's appellate counsel filed in the trial court a motion for correction of Gonzalez's presentence custody credits Counsel asserted Gonzalez served 514 days from his February 9, 2009, arrest to his July 7, 2010, sentencing.   Accordingly, he is entitled to presentence custody credit for 514 days actually served and 257 days of good time/work time.

KITCHING, J. ALDRICH, J.