P. v. Gonzales 8/26/11 CA4/3

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2011 » P. v. Gonzales 8/26/11 CA4/3

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G043384

Case Date: 12/14/2011

Preview:Filed 8/26/11; pub. order 9/15/11 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CONTRERAS GONZALES, Defendant and Appellant. G043384 (Super. Ct. No. 09WF0504) OPINION

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed. Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobek and Meredith A. White, Deputy Attorneys General, for Plaintiff and Respondent. * * *

INTRODUCTION A jury convicted Michael Contreras Gonzales of possession of methamphetamine for use and several other offenses, including active participation in a criminal street gang under Penal Code section 186.22, subdivision (a) (section 186.22(a))1 and carrying a loaded firearm in a vehicle while an active participant in a criminal street gang under section 12031, subdivision (a)(1) and (2)(C). The jury found true the gang enhancement allegation under section 186.22, subdivision (b)(1) (section 186.22(b)(1)). The trial court sentenced Gonzales to an eight-year prison term. In response to Gonzaless contentions, we conclude (1) the evidence was sufficient to support a finding Gonzales was an active gang participant when he was arrested; (2) felonious criminal conduct under section 186.22(a) need not be gang related; (3) an active gang participant may be liable under section 186.22(a) for acting alone; (4) substantial evidence supported findings for purposes of section 186.22(b)(1) that Gonzaless unlawful possession of a gun was gang related and that he possessed the gun with the specific intent to promote, further, or assist in criminal conduct by gang members; and (5) the trial court did not err by denying Gonzaless motion for a new trial. We therefore affirm. FACTS I. Gonzales's Arrest and Interview by the Police In March 2009, Orange County Sheriffs deputies, working undercover, approached Gonzales as he sat in his parked car in an alley in the City of Stanton. The alley was in an area claimed by two rival gangs--Big Stanton and 18th Street. When the deputies asked Gonzales if he had anything on him, he replied he had a gun and some methamphetamine.

1

Further code references are to the Penal Code unless otherwise indicated. 2

The deputies opened the car door, handcuffed Gonzales, and removed him from the car. The deputies searched Gonzales and found in a front trouser pocket a plastic bottle holding six plastic baggies containing a total of one gram of methamphetamine, and $140 in his wallet. The deputies searched Gonzaless car and found a loaded handgun under the drivers seat and a hypodermic syringe. The gun was not registered in Gonzaless name. He claimed to have bought it from someone for $400 and suspected it might have been stolen. Gonzales told the deputies he used methamphetamine and heroin, had injected drugs that day, using the syringe found in his car, and was in the alley to drop off a friend who sold drugs. Gonzales also sold drugs and used the money to pay for diapers and baby food and to support his drug habit. The deputies noticed Gonzales had several tattoos, one of which said "Stanton," another which said "Raiders," and another which said "OC." When a deputy asked Gonzales about gang membership, he replied, "Big Stanton." For his residence, Gonzales gave the deputies a Garden Grove address. Gonzales was interrogated by Orange County Sheriffs Deputy Kevin Navarro, who was part of the gang enforcement team and had been assigned to monitor the Big Stanton gang. Gonzales said he grew up among Big Stanton gang members, had been "jumped into" (i.e., beaten up by) the gang when he was 11 years old, was in good standing with the gang, and had recently spoken by cell phone with Big Stanton gang members. When Navarro asked Gonzales why he had the gun, he replied, "because 18 is out to get us." Navarro asked, "is us Stanton?" Gonzales answered, "yes." II. Navarro's Expert Testimony Navarro also testified as an expert on criminal street gangs. As such, he explained Hispanic gang culture, including the importance of territory and the use of fear and threats of violence to maintain claimed territories and establish areas for business, 3

usually drug sales. Navarro testified gangs use violence to secure control over a claimed territory and weapons are important in gang culture as protection from rivals and as a display of power. Gang members use tattoos to show gang allegiance, "[i]ts kind of like graffiti, but its on your body." Navarro testified Big Stanton is a Hispanic criminal street gang and claimed territory which included the alley in which Gonzales was arrested. Big Stanton and 18th Street are rival gangs. Big Stanton tattoos include "STN," "BSTN," "Big STN," or "Big Stanton." Big Stantons primary activities include drug sales and weapons offenses. According to Navarro, three members of Big Stanton had been arrested for selling drugs and admitted they had done so for the gangs benefit. Anyone selling drugs in Big Stantons claimed territory would have been expected to pay "taxes" to Big Stanton. Navarro testified the term "good standing" means a participating gang member who is not in trouble with the gang. Navarro opined Gonzales was an active member of Big Stanton at the time of his arrest in March 2009 based on the following facts: 1. When Navarro interrogated Gonzales after his arrest, Gonzales said he had been jumped into Big Stanton at age 11, knew several Big Stanton gang members, and recently had spoken with a known Big Stanton gang member. 2. When Navarro asked about the gun, Gonzales replied he bought the gun three months earlier because "18 is out to get us." Gonzales confirmed that "us" was Big Stanton. The use of the word "us" was significant to Navarro because it showed Gonzales was "speaking for the gang." 3. Gonzales was arrested with a gun in an alley claimed both by Big Stanton and its foe, 18th Street. Navarro testified Gonzales would not have needed the gun for protection if he were not an active participant of Big Stanton.

4

4. Gonzales knew 18th Street and Big Stanton were rival gangs. This demonstrated Gonzales knew "the current politics." 5. Gonzales said he was in "good standing" with Big Stanton. 6. Gonzales had several Big Stanton tattoos on his body. 7. Field identification cards from 1997, 1998, 2003, and 2005 indicated Gonzales had informed law enforcement officers he was a member of Big Stanton. Based on a hypothetical mirroring the facts of this case, Navarro testified the offenses of possession of methamphetamine for sale, possession of a firearm by a felon, and possession of a loaded firearm in public by an active gang member were committed to promote and benefit the gang. III. Gonzales's Testimony Gonzales testified that in August 2005 he pleaded guilty to resisting arrest and, in the plea form, admitted he was an active participant in a criminal street gang. Also in August 2005, Gonzales signed a California Street Terrorism Enforcement and Prevention Act (

Download P. v. Gonzales 8/26/11 CA4/3.pdf