THE PEOPLE v. GREGORY SHELTON (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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Appellant Gregory Fleetwood Shelton was convicted by a jury of possessing a firearm as a felon and of carrying a loaded unregistered firearm.   The jury found that both offenses were for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote and assist in criminal conduct by gang members.   Appellant admitted two prior felony convictions.   He was sentenced to a prison term of 15 years on the first count;  the trial court stayed the sentence on the second count pursuant to Penal Code section 654.   This appeal challenges solely the sufficiency of the evidence to support the gang enhancements.   We affirm.

FACTS

While on patrol in a marked car, two deputy sheriffs saw appellant and two other men standing outside a house in Compton.   When appellant saw the deputies, he started to walk away;  he grabbed his waistband, which one of the deputies testified was an indication that appellant was armed.   The deputies gave chase as appellant started to run away.   During the chase, appellant threw away a .40–caliber Smith & Wesson semiautomatic handgun, which was fully loaded with 14 live rounds.   He was arrested shortly afterwards.   He gave a false name when arrested.

The prosecution's gang expert was Deputy Richard Sanchez.   According to Sanchez, the gang that appellant belongs to is MOB Piru, which has been in existence since the early 1990's.   Sanchez has been working with MOB Piru since 1992;  he characterized this as his “target gang” since he has been in law enforcement.   He stated that he knows this gang “on a very personal level,” having done numerous investigations of this gang and having been involved with many cases involving this gang.

MOB Piru has approximately 215 members.   It claims certain territory in and about Compton as its own.   The location where appellant was arrested is in this territory.   MOB Piru has several gang rivals and there had been a recent shooting in MOB Piru's territory, an event which could be expected to spark retaliation.   According to Sanchez, at the time of appellant's arrest MOB Piru was actively engaged in gang warfare with another gang.

Sanchez explained that “to put in work for the gang” means doing something for the benefit of the gang.   The gang would consider itself benefited if a gang member shoots or kills a member of another gang or if a gang member commits a robbery, by way of an example.   It is very important “to put in work for the gang” because this is what makes a gang's reputation.

According to Sanchez, carrying a gun is putting in work for the gang.   This is so because gangs do not want guns spread through their territory.   Guns are handed out to the older, more senior gang members who are designated firearm keepers and who in turn hand out guns to members who will use the gun to commit a shooting.   The guns are passed from one keeper to another in order make it more difficult for the police to recover firearms.   In effect, the firearm keeper controls the level of violence by withholding or handing out the gun.

The primary activities of MOB Piru are petty theft, robbery, murder, attempted murder, conspiracy to commit murder, gun trafficking, illegal possession of firearms and rape.

The predicate offenses of the gang were a conviction of Warren Phillipus for conspiracy to commit robbery and the conviction of Ray Beaver for illegal possession of a firearm by a felon, illegal possession of a stolen firearm and illegal possession of an unregistered firearm.   Both Phillipus and Beaver are members of MOB Piru.

Sanchez was given the facts of this case as a hypothetical and he was asked whether, in his opinion, the illegal possession of a firearm was for the benefit of, at the direction of, or in association with the MOB Piru gang.   He answered in the affirmative and gave this explanation:  “My opinion is that [appellant] was holding that firearm for the gang.   He is the firearms keeper.   He's hanging out at a location with other gang members.   It's in the MOB Piru area.   He is ․ flashing his [gang] colors․  He has the firearm on him.   And when the police were coming up to contact him, he didn't want to get caught with the firearm․”  The fact that at the time of appellant's arrest MOB Piru was actively engaged in a gang war is significant because appellant was holding the gun for another gang member to use it to commit a crime.   It is common for gang members to carry unregistered guns as these weapons were difficult to track.

DISCUSSION

Appellant contends that the trial court erred in not granting his motion to dismiss the gang allegations.   We do not agree;  there was substantial evidence to support the jury's findings on this issue.

Appellant first contends that the prosecutor “failed to elicit any foundation to support the basis of Sanchez's testimony” on the subject of MOB Piru's primary activities.

This is incorrect.   Sanchez testified that he has been following MOB Piru since 1992, that he is very familiar with the gang and that he knows this gang “on a very personal level,” having frequently investigated this gang.   He stated the MOB Piru was his “target gang” since he has been in law enforcement.   It appears that 18 years of study of a gang is sufficient foundation for an opinion about its primary activities.

Next, appellant cites from the portion of the opinion in People v. Beckley (2010) 185 Cal.App.4th 509 that was not published.   The unpublished portion of this opinion may not be cited.  (Cal. Rules of Court, rule 8.1115(a).)

Appellant is mistaken in claiming that all Sanchez did in stating what the gang's primary activities were was to cite “the gang statute.”   The list that Sanchez gave was specific and precise and it was not a listing of the offenses in the “gang statute.”

Appellant returns to the argument about a lack of foundation for Sanchez's testimony by contending that he “never explained how he had obtained the information” about primary activities.   He was asked, “How are you familiar with that particular gang,” i.e., MOB Piru, and he replied to this question in detail, as we have seen.

Appellant contends that there is no substantial evidence to show that he intended to promote or assist in criminal conduct by the gang.   The contrary is true.   As Sanchez explained, appellant's role as a firearms keeper for the gang was of critical importance to the gang.   It was appellant who would hand the weapon out to a gang member for use and it was appellant who attempted to keep the weapon safe for future use by gang members.   Appellant was at the heart of the operations of this gang.   This was more than an adequate basis for the conclusion that appellant had the specific intent to promote and assist MOB Piru.

DISPOSITION

The judgment is affirmed.

We concur:

BIGELOW, P. J. RUBIN, J.