THE PEOPLE v. CHRIS ADAMS (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury convicted Chris Adams (defendant) of possession of cocaine base for sale (Health & Saf.Code, § 11351.5), and found true the allegation that he committed the offense for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (Pen.Code, § 186.22, subd. (b)(1)(A)).¹  Defendant admitted that he had suffered two prior convictions for transporting, selling, or furnishing a designated controlled substance (Health & Saf.Code, § 11352).   The trial court sentenced appellant to eight years in state prison as follows:  three years (the low term) for the underlying offense, plus two years (the low term) for the gang enhancement and three years for the prior drug related offenses (Health & Saf.Code, § 11370.2, subd. (a)).

On appeal, defendant contends insufficient evidence supports the jury's gang finding.²  We affirm.

BACKGROUND

I. Prosecution

On May 8, 2008, Los Angeles Police Department (LAPD) Officer Pete Cabral, along with Officers Larson and Geoghegan, were monitoring the parking lot of a church located on South Figueroa Street near 104th Street in Los Angeles.   Officer Cabral's narcotics unit had received complaints about drug sales in the general area where the church was located.   At approximately 5:30 p.m., Officer Cabral saw defendant and a woman, later identified as Larisha Barnes (Barnes), standing in the parking lot near a car with its hood up.   Over a period of 20 to 30 minutes, Officer Cabral witnessed the following transaction approximately 10 times:  a person (the buyer) would engage defendant in a brief conversation and then hand defendant some paper currency.   Defendant would take the currency and then look toward Barnes, who was standing approximately five feet away.   Barnes would reach into her pants and pull out a clear plastic bag that contained a number of off-white rocks that resembled rock cocaine.   Each rock within the clear plastic bag was individually wrapped in plastic.   Barnes would hand the rock to defendant, who in turn would hand the rock to the buyer.   The buyer would leave the parking lot through an adjacent alley.

After observing these transactions, Officer Cabral saw a man, later identified as Lee Simmons (Simmons), approach defendant.   Simmons handed defendant some paper currency.   Barnes retrieved a clear plastic bag from her pants and removed a rock that resembled rock cocaine.   She handed the rock to defendant, who handed it to Simmons.   Like the other buyers, Simmons left the lot through the adjacent alley.   Once in the alley and away from defendant's line of sight, the officers approached Simmons and displayed their badges.   Officer Cabral saw Simmons open his right hand and toss a white rock to the sidewalk.   Officer Cabral retrieved the rock thrown by Simmons and arrested him.

After placing Simmons in custody, Officers Cabral and Geoghegan approached defendant and Barnes in the parking lot.   Defendant and Barnes were with a man, later identified as Michael Griffin (Griffin), who the officers had not previously seen during their surveillance of the parking lot.   The officers arrested defendant and Barnes for the drug sales, and Griffin, who had two outstanding warrants.

At the scene, Officer Cabral searched defendant and found $361 in defendant's front pants pocket.   There were thirty-one $1 bills, ten $5 bills, three $10 bills, ten $20 bills, and one $50 bill.   Officer Geoghegan searched Barnes and recovered a green leafy substance that resembled marijuana.   At the station, Officer Geoghegan performed a strip search of Barnes and found a clear plastic bag containing 26 off-white rocks individually wrapped in plastic.   An LAPD criminalist testified that the rocks in the clear plastic bag found on Barnes and the rock discarded by Simmons prior to his arrest contained cocaine base.

LAPD Officer Melvin Hernandez testified as the prosecution's gang expert.   According to Officer Hernandez, the sale of narcotics provides criminal street gangs with revenue to buy additional narcotics as well as weapons, such as rifles and handguns.   A criminal street gang is protective of its territory, and any person who is not a member of the gang must pay the gang with money or drugs in order to sell drugs within the gang's territory.   Once a criminal street gang establishes a territory and sufficiently terrorizes the people who live in that territory, the gang can commit whatever crimes, including illegal drug sales, it desires without fear that community members will inform the authorities or testify against the gang's members.   The members of a criminal street gang “put in work” for their gang by selling drugs, robbing and killing people, and breaking into people's homes.

Officer Hernandez testified that the Hoover Criminals gang is one of the largest criminal street gangs in South Los Angeles.   It claims as its territory a large part of South Los Angeles, including the location where defendant and Barnes were selling drugs on May 8, 2008.   The Hoover Criminals gang has approximately 900 members, and is composed of various sects, including the 107 Hoovers.   The primary activities of the Hoover Criminals and its sects include selling narcotics, assaults, burglaries, drive-by shootings, and murders.

Officer Hernandez testified that defendant was an active member of the Hoover Criminals gang (107 Hoovers sect) at the time he committed the drug sales in question.   Multiple field interview cards from 2001 through 2008 showed defendant admitting membership in the 107 Hoovers sect and using the moniker “Ace.” Defendant has the word “Ace” tattooed on his arm.

The prosecutor used several hypothetical questions to elicit Officer Hernandez's opinion whether the underlying offense was committed for the benefit of a gang and had the intent to promote criminal conduct by gang members.   In response to these questions, Officer Hernandez opined that when a known gang member sells rock cocaine in territory claimed by his gang, his conduct is consistent with activity that is done for the benefit of the gang with the intention to further criminal conduct by the gang.   According to Officer Hernandez, by selling drugs, the gang member earns money for the gang to “sustain [itself].”   The gang uses proceeds from drug sales to buy additional drugs and weapons to protect itself.   Additionally, proceeds from drug sales are used to purchase clothes, cars, and jewelry, items that serve as effective recruiting tools for prospective gang members in low income communities.

II. Defense

Barnes testified that prior to her arrest, she lived with Simmons, provided in-home care to Simmons, and regularly smoked rock cocaine with Simmons.   On May 8, 2008, Barnes received a telephone call from Griffin, her boyfriend at the time, asking her to meet him at the parking lot.   When Barnes arrived, she saw defendant and Griffin replacing the spark plugs in a car.   At one point, Simmons approached Barnes in the parking lot and asked her for some rock cocaine.   Barnes had two pieces of rock cocaine in her pocket, along with marijuana.   She gave one of the pieces to Simmons and he left.   Simmons did not give Barnes any money for the rock cocaine.   After Simmons left, Barnes remained in the parking lot with defendant and Griffin, both of whom were not aware that Barnes was carrying rock cocaine.   Police officers approached them approximately 10 minutes later with their guns drawn.   Police officers accused defendant of hiding drugs on his body and one officer reached into defendant's pants.   The officers arrested defendant, Barnes, and Griffin.³

Griffin testified that on May 8, 2008, he and defendant were replacing the spark plugs in defendant's car.   They chose to do this at the church's parking lot because a mutual friend, who was a mechanic, lived nearby and could provide them with tools if necessary.   According to Griffin, no one approached defendant and gave defendant money while they were in the parking lot.   At one point, Barnes arrived at the parking lot to meet up with Griffin.   Five to 10 minutes after Barnes arrived, police officers approached and arrested the three of them.

DISCUSSION

Defendant does not dispute that he was a member of the Hoover Criminals gang at the time of his arrest, or that he was selling rock cocaine within that gang's territory.   He contends, however, that substantial evidence does not support the jury's gang finding because “no evidence was presented that could establish beyond a reasonable doubt that [defendant's] crime was for the benefit of a gang, or that he had the requisite intent.”

“The role of an appellate court in reviewing the sufficiency of the evidence is limited.   The court must ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’  [Citations.]  [¶] ․ But it is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt.  [Citation.]  Therefore, an appellate court may not substitute its judgment for that of the jury.”  (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.)   Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder.  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)   The substantial evidence standard applies to evidence in support of a criminal street gang enhancement.  (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)

We conclude there was substantial evidence to support the jury's finding that defendant committed the underlying offense for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(A)).   There was undisputed evidence that defendant was a member of the Hoover Criminals gang, and that he was selling the cocaine base in a location that fell within territory claimed by the Hoover Criminals gang.   This evidence, coupled with Officer Hernandez's expert testimony that proceeds from drug sales enable the purchase of additional drugs, the procurement of weapons, and the recruitment of additional gang members for the Hoover Criminals gang, was sufficient to support the jury's finding.  (See People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931 [evidence that defendant was a gang member who had permission to sell drugs in a territory claimed by a friendly gang coupled with expert's testimony that income from drug sales facilitates the purchase of narcotics and weapons by the gang was sufficient to support gang finding under section 186.22, subdivision (b)(1)(A) ].)

People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon ), cited by defendant, is inapposite.   In that case, a deputy sheriff stopped the defendant and a passenger while the defendant was driving a stolen vehicle.   The sheriff found a loaded handgun underneath the driver's seat.   A check determined that the handgun was unregistered.   An expert testified that the defendant and the passenger were members of the Colonia Bakers criminal street gang and that the deputy sheriff had stopped them in territory claimed by the Colonia Bakers gang.  (Id. at p. 849.)   When asked how driving around in a stolen vehicle with an unregistered handgun could benefit the Colonia Bakers gang, the expert testified that a gang member could commit a number of future crimes with the vehicle and weapon, and then dispose of the vehicle and weapon without any ties to him.  (Id. at pp. 848-849.)

The Court of Appeal held that there was insufficient evidence to support the gang finding.   It reasoned that the expert's testimony was speculative and amounted to the following improper syllogism:  “that because the gun and the stolen vehicle could be used to facilitate the commission of a crime, and the Colonia Bakers commit crimes, the two must have been acting on behalf of the Colonia Bakers.”  (Ramon, supra, 175 Cal.App.4th at p. 849.)   In stark contrast, the expert in this case did not simply testify that appellant's act of selling cocaine base would facilitate some future crimes by the Hoover Criminals.   Rather, the expert testified that one of the primary activities of the Hoover Criminals is selling drugs and that the gang relies on revenue from drug sales to “sustain” itself by buying more drugs, procuring more weapons, and recruiting more gang members to commit additional crimes on behalf of the gang.  (People v. Gardeley (1996) 14 Cal.4th 605, 616-617 [expert opinion may form the basis from which a jury can find that the crime comes within the ambit of a section 186.22 gang enhancement].)   Unlike in Ramon, the expert's testimony in the present case, coupled with undisputed evidence that the defendant was a gang member who sold drugs within gang territory, was sufficient to establish that the underlying offense was gang related.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

CHAVEZ

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. In a supplemental opening brief, defendant argued that the trial court erred in its calculation of defendant's presentence custody credits.   According to defendant, he was entitled to a total of 144 days of presentence custody credits, and not 102 days as awarded by the trial court.   Concurrent with the supplemental opening brief, defendant filed a motion with the trial court raising the same argument.   The trial court granted defendant's motion on May 4, 2010, and awarded him 144 days in presentence custody credits.   Because the trial court granted the relief requested by defendant, we need not address the issue raised in the supplemental opening brief..  FN2. In a supplemental opening brief, defendant argued that the trial court erred in its calculation of defendant's presentence custody credits.   According to defendant, he was entitled to a total of 144 days of presentence custody credits, and not 102 days as awarded by the trial court.   Concurrent with the supplemental opening brief, defendant filed a motion with the trial court raising the same argument.   The trial court granted defendant's motion on May 4, 2010, and awarded him 144 days in presentence custody credits.   Because the trial court granted the relief requested by defendant, we need not address the issue raised in the supplemental opening brief.

FN3. Along with defendant, Barnes was charged with possessing cocaine base for sale.   She pled guilty to that charge..  FN3. Along with defendant, Barnes was charged with possessing cocaine base for sale.   She pled guilty to that charge.

_, P.J. BOREN _, J. DOI TODD