THE PEOPLE v. MYRON LARAY SMITH (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury convicted defendant and appellant Myron Smith of one count of possession of a firearm by a felon (Pen.Code, § 12021, subd. (a)(1)), and one count of carrying an unregistered loaded firearm.  (Pen.Code, § 12031, subd. (a)(1).)   As to both counts the jury found true an allegation that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang and with the specific intent to promote, further or assist in criminal conduct by gang members.  (Pen.Code, § 186.22, subd. (b)(1)(a).)   On appeal defendant contends:  (1) there was insufficient evidence for the jury to find the gang enhancements true;  and (2) defendant's due process rights were violated by law enforcement's failure to preserve any fingerprints that may have been on the firearm.   We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

Los Angeles Police Officer Timothy Pearce testified that on September 2, 2008, he was working as a uniformed gang detective in the Grape Street Crips gang area, which included the Jordan Downs housing project.   Pearce and his partner drove into the housing development and saw a group of people standing on a corner.   Defendant was in the group along with an older, respected gang member known as “Big Nardo.”   Defendant was talking to a woman, but when he saw the police car he “straightened up kind of erect and then it looked like he tried to relax a bit” in a manner Pearce found suspicious.   When Pearce got out of the police car and spoke to the group, defendant “took off running.”   Pearce issued a radio alert then gave chase.   He could see that defendant was clutching his left pants pocket as he ran.

Officer Pearce eventually lost sight of defendant.   However, another police officer—Dan Strojny—was monitoring the radio communication and saw defendant running.   Strojny then picked up the pursuit.   He testified that he noticed defendant was “holding very closely to his left side” as he ran.   As the chase continued, Strojny saw that defendant was holding a dark semiautomatic handgun.   He watched as defendant slowed slightly then threw the gun up in the air.   Strojny assumed the gun landed on top of a nearby apartment roof.   Police lost sight of defendant but later found him hiding under a car in the backyard of a house.   Strojny returned to the single story building near where he saw defendant throw the gun.   He climbed on top of the roof.   In the middle of the roof, he found a dark-colored semiautomatic handgun.

Gang expert and Los Angeles Police Officer Jason Archie also testified.   Archie was an expert on the Grape Street Crips gang and was familiar with their signs, boundaries, and tattoos.   Archie testified that the Grape Street Crips's primary activities were murder, attempted murder, robbery, selling illegal narcotics, carrying guns, extortion, burglary, and carjacking.   According to Archie, in September 2008, the Grape Street Crips were “at war” with another gang, the East Coast Crips.   He described “at war” as when gangs are “actively shooting at each other.”   Jordan Downs is the center of the Grape Street Crips gang territory.

Officer Archie did not know defendant.   He concluded that two of defendant's tattoos were Grape Street Crips tattoos—a “G” on defendant's left arm and “ST” on the right.   He opined that defendant was a gang member based on the tattoos, that he had been stopped numerous times inside Jordan Downs, and because he had been arrested for a gang crime—the instant case.

The prosecutor presented Officer Archie with a hypothetical question based on the facts of the case.   Archie testified that under the circumstances described, the individual's possession of the gun would benefit the Grape Street Crips.   He explained:

“That gun can be used for many different things.   Defensively, the individual is protecting the neighborhood at that time.   If a rival gang were to drive down 103rd or 102nd and start shooting at somebody, this individual with the gun is going to defend his neighborhood, his friends, and retaliate, shoot back․  [¶] Also, it can be used as an offensive weapon, meaning if someone were to come into Jordan Downs they could put the gun in somebody's face and rob them․  [¶] Also, they could use that gun to carjack somebody and take that car, drive down to Nickerson Gardens, drive down Imperial Courts, and shoot at rival gangs.   Having a gun inside Jordan Downs creates an atmosphere of fear and intimidation for the citizens that aren't gang members, because they see that individual with that pistol․  [¶] So not only could it be used for offensive purposes, defensive purposes, but also to create an atmosphere of fear and intimidation, which allows them to commit robberies in broad daylight.”

Officer Archie further opined that if the individual with the gun is a convicted felon and the gun is not registered to the individual, it added to his opinion.   According to Archie, a felon in possession of a gun would be trying to “enhance his reputation.   Because everyone knows he's an ex-con, and if he has that gun he's going to get in serious trouble if he's caught․  [¶] Also, the gun is not registered to anybody.   He can go shoot somebody, wipe it clean, and toss that gun over the fence, in a trash can, and that gun cannot be associated with that individual.”   In addition, Archie testified that someone hanging out with Big Nardo is “trying to enhance his reputation, trying to make himself seem big.”

On cross-examination, Archie admitted defendant's “G” and “ST” tattoos were fading, which could be an indication that he was in the process of having them removed.

Following the People's case, and pursuant to Penal Code section 1118.1, the court granted defendant's motion to dismiss a third charged count of carrying a loaded firearm while an active participant in a criminal street gang (Pen.Code, § 12031, subd. (a)(2)(C)).

Defense Evidence

On cross-examination, Officer Strojny admitted he picked up the gun he found on the roof without using gloves.   He further admitted that he did not preserve the gun for fingerprints and that even if the gun was tested for fingerprints he may have rubbed them off when he handled the gun.   The parties stipulated that no fingerprints were found on the gun.

Defendant also offered the testimony of Darryl Burghardt.   Burghardt testified that “at a certain point in time back in 2008,” he too was at the Jordan Downs housing development.   He saw a man running in his direction being chased by police.   At the time Burghardt had a .40 caliber gun in his possession, for personal protection.   When he saw the man being chased by police he immediately turned around and threw the gun on a nearby apartment building roof.   He then ran into the apartment building.   Burghardt had bought the gun from a “guy that does crack,” even though he was not supposed to have a gun because he was a convicted felon on parole.   He waited inside the apartment building until the police activity outside had died down, then he left the housing development.   Sometime later he was arrested and placed in county jail.   While there, he came into contact with defendant.   Defendant overheard Burghardt describing what happened at Jordan Downs in September 2008.   After asking Burghardt the date and time he was at the housing development and threw the gun, defendant told Burghardt he was in jail because of Burghardt's gun.   Burghardt volunteered to testify because he felt it was the right thing to do.

Verdict and Sentence

The jury found defendant guilty of one count of possession of a firearm by a felon (Pen.Code, § 12021, subd. (a)(1)), and one count of carrying an unregistered loaded firearm (Pen.Code, § 12031, subd. (a)(1)).   The jury found true an allegation that both crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang and with the specific intent to promote, further or assist in criminal conduct by gang members (Pen.Code, § 186.22, subd. (b)(1)(a)).   The court sentenced defendant to a total state prison term of six years, composed of the midterm of two years on count 1, doubled pursuant to the Three Strikes provisions embodied in Penal Code sections 1170.12, subdivisions (a)-(d) and 667, subdivisions (b)-(i).   It also included one year each for two prior convictions, pursuant to Penal Code section 667.5, subdivision (b).  Although the court denied defendant's motion for new trial on the ground that there was insufficient evidence to allow the gang allegations to go to the jury, the court acknowledged that the matter was not the “strongest of gang cases.”   The trial court exercised its discretion to strike any additional punishment available under Penal Code section 186.22.

DISCUSSION

I. Substantial Evidence Supported the Gang Enhancements

Defendant contends there was insufficient evidence to support a true finding on the gang enhancements.   We disagree.

Under section 186.22, subdivision (b)(1), a person convicted of a felony committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members,” is properly subject to its additional punishment.  (People v. Miranda (2011) 192 Cal.App.4th 398, 411 (Miranda );  People v. Margarejo (2008) 162 Cal.App.4th 102, 106, 108.)

“In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence – that is, evidence that is reasonable, credible, and of solid value – from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  [Citation.]  We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.  [Citation.]  If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.  [Citation.]  ‘A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.’   [Citation.]”  (People v. Albillar (2010) 51 Cal.4th 47, 59–60 (Albillar ).)

Defendant asserts there was insufficient evidence to demonstrate he “possessed a gun ․ for any gang related purposes, that he was involved in or about to be involved in a crime for the benefit of the gang, or that he was a member of the gang.”   We find the opposite to be true.   He had gang tattoos on his arms.¹  At the time of the incident he was hanging out in Jordan Downs, the center of the gang's territory, along with a well-known older gang member.   There was an active gang war going on at the time of the incident.   As the gang expert testified, having a gang member ready with a loaded firearm would allow the gang to protect its territory should a rival gang approach.  (See Albillar, supra, 51 Cal.4th at p. 63.)

The gang expert also testified that carrying guns was one of the primary activities of the Grape Street Crips gang.   He explained that a convicted felon's unlawful act of possessing a firearm would enhance his status in the gang, and that someone spending time with “Big Nardo” would be attempting to enhance his reputation in the gang.   He opined that in a hypothetical with facts mirroring the evidence adduced at trial, the gun possession was committed for the benefit of the gang.   According to the expert, the gun could be used to defend against the gang's rivals as well as to commit other crimes and, because the gun was not registered to the possessor, it could be thrown away without incriminating the gang.   Further, the expert opined that an individual standing in the open, with gang tattoos, and possessing a loaded firearm would terrorize residents of the neighborhood, thereby making it possible for the gang to commit crimes without fear that the residents might cooperate with police.

There was sufficient evidence for the jury to conclude defendant committed the charged offenses for the benefit of the gang.   Moreover, the jury could reasonably infer defendant had the specific intent to promote, further, or assist in criminal conduct by gang members based on the ongoing gang war, and defendant's unlawful possession of the gun, while standing in the open, freely displaying his gang tattoos, all while in the presence of a highly respected older gang member.  (Miranda, supra, 192 Cal.App.4th at pp. 412–413 [sufficient evidence in part from gang expert testimony regarding how charged crimes benefitted the gang];  People v. Garcia (2007) 153 Cal.App.4th 1499, 1512 [sufficient evidence to support gang enhancement where defendant arrested with loaded firearm in car];  see also People v. Williams (2009) 170 Cal.App.4th 587, 625 [sufficient evidence that defendant committed possession crimes in association with gang where defendant was arrested in a house with contraband along with other gang members and evidence permitted inference that guns and drugs were part of drug sales activity].)

Defendant relies on People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa ) to support his argument.  Ochoa differs from this case in significant aspects and is not controlling.   In Ochoa, 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 defendant's tattoos.   There was no evidence the crimes were committed in [the defendant's gang's] territory or the territory of any of its rivals.   There was no evidence that the victim of the crimes was a gang member․  Defendant was not accompanied by a fellow gang member.”  (Id. at p. 662, fn. omitted.)   In contrast, here defendant was in the heart of the Grape Street Crips gang territory during an active gang war.   Defendant was with a well-known older gang member and stood in the open, wearing a tank top that revealed his gang tattoos.   Thus, unlike the court in Ochoa, we may conclude there was substantial evidence supporting the gang enhancements.

Defendant also quotes at length the Ochoa court's analysis of People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon ).   In Ramon, the court found there was insufficient evidence to support a conclusion that the defendant was acting on behalf of his gang in possessing a stolen vehicle or a handgun, or that he committed the crimes with the specific intent to promote, further, or assist criminal conduct by gang members.  (Id. at p. 851.)   The court characterized the gang expert's testimony as mere speculation.   Although the expert opined the defendant's motive might have been to use the stolen vehicle and firearm in furtherance of gang crimes, there was no evidence to support that opinion.   The expert did not indicate that possessing stolen vehicles was one of the gang's primary activities.  (Id. at p. 853.)   In contrast, in this case, in addition to evidence that defendant was a gang member, was with another known gang member at the time of his arrest, and was in the heart of his gang's territory, there was evidence that the gang was engaged in an active gang war.   Further, here the gang expert testimony included that possessing guns was a primary activity of the gang.  Ramon does not mandate a reversal of the gang enhancement findings in this case.

II. There Was No Denial of Defendant's Due Process Rights

Defendant additionally contends that law enforcement's failure to preserve any fingerprints that might have been on the firearm amounted to a denial of his right to due process.   Defendant concedes however that he did not raise this issue below.   We therefore conclude that defendant forfeited this argument.   (People v. Cook (2006) 39 Cal.4th 566, 591.)

Even were we to consider defendant's argument we would find it to be without merit.   As defendant notes, our Supreme Court in People v. Carter (2005) 36 Cal.4th 1215, explained law enforcement's duty to preserve evidence:

“ ‘Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence “that might be expected to play a significant role in the suspect's defense.”  [Citations.]  To fall within the scope of this duty, the evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”  [Citations.]  The state's responsibility is further limited when the defendant's challenge is to “the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.”  [Citation.]  In such case, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”  [Citations.]’  “ (Carter, supra, 36 Cal.4th at p. 1246, citing, inter alia, California v. Trombetta (1984) 467 U.S. 479, 488, 489 and Arizona v. Youngblood (1988) 488 U.S. 51, 57.)

According to Officer Strojny, he saw defendant throw the gun on the apartment building roof.   In this scenario, Strojny had no reason to believe any exculpatory fingerprints would have been on the gun when he retrieved it.   In any event, defendant does not know if there were fingerprints on the gun or that they were rubbed off when Strojny picked up the weapon without wearing gloves.   Strojny testified he attempted to recover the gun in a safe manner.   Nothing in the record suggested he acted in bad faith by failing to preserve any fingerprints.   Thus, we reject defendant's contention.

DISPOSITION

The trial court judgment is affirmed.

BIGELOW, P. J.

We concur:

FLIER, J.

GRIMES, J.

FOOTNOTES

FN1. Defendant argues the jury could not infer he was a gang member based on his tattoos because he was in the process of having them removed.   We disagree.   Defendant did not introduce any evidence establishing he was having his tattoos removed.   Instead, the gang expert agreed one explanation for the faded quality of the tattoos was that defendant was having them removed.   The jury was free to reject defendant's suggestion and could reasonably infer that the “G” and “ST” tattoos, while faded, were still an indication of defendant's gang membership.   Moreover, as described further above, there was additional evidence from which the jury could infer defendant was still an active Grape Street Crips gang member.   “[T]hat there is conflicting or contrary evidence is only a factual and credibility determination performed by the jury.   We may not take it into consideration but only decide if there is enough evidence supporting the finding, and the record reflects sufficient evidence to affirm the substantive crime and the enhancement.”  (People v. Martinez (2008) 158 Cal.App.4th 1324, 1334.).  FN1. Defendant argues the jury could not infer he was a gang member based on his tattoos because he was in the process of having them removed.   We disagree.   Defendant did not introduce any evidence establishing he was having his tattoos removed.   Instead, the gang expert agreed one explanation for the faded quality of the tattoos was that defendant was having them removed.   The jury was free to reject defendant's suggestion and could reasonably infer that the “G” and “ST” tattoos, while faded, were still an indication of defendant's gang membership.   Moreover, as described further above, there was additional evidence from which the jury could infer defendant was still an active Grape Street Crips gang member.   “[T]hat there is conflicting or contrary evidence is only a factual and credibility determination performed by the jury.   We may not take it into consideration but only decide if there is enough evidence supporting the finding, and the record reflects sufficient evidence to affirm the substantive crime and the enhancement.”  (People v. Martinez (2008) 158 Cal.App.4th 1324, 1334.)