Opinion
A147166
08-31-2017
THE PEOPLE, Plaintiff and Respondent, v. GUALBERTO FIGUEROA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC083544A)
A jury convicted defendant Gualberto Figueroa of three charges for the unlawful possession of three firearms and found a Penal Code section 186.22, subdivision (b) gang enhancement true for each charge. The trial court imposed consecutive sentences for the firearm convictions. It also imposed and stayed multiple one-year sentence enhancements for prior prison terms pursuant to section 667.5, subdivision (b). The court declined to dismiss a felony strike for an additional five-year enhancement.
All statutory references are to the Penal Code.
On appeal, Figueroa contends (1) there was insufficient evidence to support the gang enhancements; (2) his counsel was ineffective for failing to object to the consecutive sentences for the firearm convictions; (3) the court abused its discretion in refusing to dismiss his prior strike; and (4) the court erred by staying rather than striking the section 667.5, subdivision (b) enhancements.
We disagree on all points but the last. As the People concede, the court erred in staying rather than striking Figueroa's section 667.5, subdivision (b) one-year enhancements. We modify the judgment by striking these one-year enhancements and in all other respects affirm the judgment.
BACKGROUND
On the evening of March 21, 2015, a San Mateo County Sheriff's Deputy on patrol in Redwood City initiated a traffic stop of a green sedan with its headlights off. Inside were Francisco Arreola, the driver; German Alvarado, the backseat passenger; and Figueroa, seated in front. The car did not immediately yield, so the stop was a "high-risk" stop when the car eventually pulled over. During a search of the car, deputies found three unregistered rifles: a .30-caliber M1 carbine rifle, a .22-caliber Marlin rifle, and a 12-gauge shotgun.
Figueroa was charged with three counts of possession of a firearm by a felon (§ 29800, subd. (a)(1)), with gang enhancements alleged for each charge (§186.22, subd. (b)(1).). After a jury convicted Figueroa of all charges and found the gang enhancements true, the trial court sentenced him to 15 years, eight months in state prison. This appeal of the gang enhancements and sentence followed.
Several law enforcement officials from the San Mateo County Sheriff's Office who were involved in the traffic stop testified at trial.
Through an interpreter, Arreola, the driver, also testified for the prosecution. He met Figueroa in late 2014 and had given him rides a few times in exchange for methamphetamine. He once drove Figueroa from the hospital and learned then that Figueroa had heart trouble.
When Figueroa asked for a ride on the evening of March 21, 2015, Arreola agreed. After using methamphetamine, Arreola picked up Figueroa from outside a building in Redwood City's Dumbarton neighborhood. He was alone. Figueroa got in and directed Arreola to a house about a five-minute drive away. There, Figueroa got out, and Arreola watched him walk behind the house's garage. Figueroa returned to the car with a long, black case, which he set atop the center console between the driver and front passenger seats. Arreola had never seen the case previously and did not ask what it was. Alvarado, whom Arreola had never met, came from the house and got into the back seat.
Figueroa instructed Arreola to drive to a second Redwood City location. Only Figueroa left the car. After being gone for around 15 to 20 minutes, Figueroa returned to the car carrying some "pipes" wrapped in a red blanket, which he set on the back seat next to Alvarado. Arreola suspected the "pipes" were guns though he had never before seen Figueroa with guns. Since he was high, he did not ask about the items.
Figueroa then directed Arreola to drive to the parking lot of a nearby fast-food restaurant. While there, Figueroa made a call from the car. Arreola was talking on his phone to his ex-girlfriend and did not know whom Figueroa spoke to or what they discussed. Eventually, a dark-colored Dodge Charger with at least two men joined them in the parking lot. Arreola observed Figueroa indicate "Let's go" to the men in the Dodge. Arreola then exited the parking lot but forgot to turn on his headlights because he was still talking on his phone. Once he noticed a patrol car behind them, he turned on the headlights.
Arreola explained that he tried to pull over but Figueroa instructed him not to stop and to tell the deputy Figueroa was feeling sick and they were headed to the hospital. Arreola rolled down his window and unsuccessfully attempted to signal the message to the pursuing deputy. After a block, he pulled over.
Arreola testified that the machete and rifles found in his car were not his and he did not place them there. He denied that when he first picked up Figueroa the guns and Alvarado were already in the car.
Following his arrest, Arreola assisted the Sheriff's Office's Gang Investigation Unit in this case. He showed Detective Jason Fukushima the Redwood City locations he drove to the evening of his arrest. He took Detective Fukushima to the 200-block of Dumbarton Avenue where he initially picked up Figueroa that evening. According to Detective Fukushima, the area was considered "a known turf for Norteño gang members." He also took Detective Fukushima to their second stop on the 3000-block of Williams Avenue, about half-a-mile away, where Figueroa retrieved the rifle case and met with Alvarado.
Jamie Draper, an inspector with the San Mateo County District Attorney's Office, testified as the prosecution's gang expert. Inspector Draper had testified 66 times previously as an expert on criminal street gangs in San Mateo County, primarily on the Norteño gang, which he has personally investigated.
Inspector Draper spoke about the Norteños leadership structure and organization. The gang was controlled by "Nuestra Familia," which was the top leadership level. Those in the middle level were referred to as "Nuestra Raza" or the "Northern Structure." At the lowest level were the Norteño street gang members, called "Northerners." He also described various Norteño subsets, organized by neighborhood. The Redwood City Dumbarton area, where Arreola had initially picked up Figueroa, was home to the Little Mexico Gang subset.
Inspector Draper had researched the gang history of the people involved in this case. He was familiar with Figueroa, who had come up frequently as a "predominant member" of the Norteños when Draper worked in the county's Gang Intelligence Unit. Figueroa had more than half-a-dozen police contacts. Figueroa had previously admitted to police that he was at least a street-level Norteño as part of the Little Mexico Gang subset. However, based on an analysis of Figueroa's tattoos, prior police contacts, and monitored communications, Inspector Draper considered Figueroa to be more than a street-level Norteño. He considered him to be an active member of the Northern Structure leadership and identified Figueroa as one of the top five Norteño gang members around Redwood City at the time of his arrest in March 2015. Figueroa had a number of tattoos associated with the Norteños, including a "huelga," an Aztec bird used by those in the Northern Structure, signifying their rank above street-level Norteños. The California Department of Corrections and Rehabilitation had also validated Figueroa as a Northern Structure associate. As evidence of his leadership role, Inspector Draper discussed direct contacts made by Figueroa to other known Northern-Structure-level Norteños, as well as notable contacts others made to Figueroa. A few months before his March 2015 arrest while Figueroa was out of custody, he was contacted by a Norteño inmate asking Figueroa for the inmate's "birth date," which Inspector Draper explained was the date someone is sponsored into the Northern Structure and is needed as proof of status to other Norteños in prison from throughout the state. Inmates had also asked Figueroa about the standing of another inmate, and Figueroa directed them to " 'put him down.' " Such communications, which conveyed Figueroa's sponsorship of a gang member into the Northern Structure and his ability to direct street-level Norteños, evidenced Figueroa's higher status according to Inspector Draper.
He identified Alvarado (the back-seat passenger) as a street-level Norteño. He testified that Arreola (the driver) was not a gang member. Other than the instant offense, Inspector Draper found no other contacts between Arreola and any other gang members and no gang tattoos on his body. Moreover, he was new to the country and barely spoke English. In Inspector Draper's estimation, he was a "transient, drug addict" who could be utilized by the gang to provide inconspicuous rides in a vehicle not registered to or affiliated with known Norteños.
Inspector Draper testified generally about the Norteños primary activities. He described a "very violent rivalry," "a war" between Norteños and their rival, the Sureños, which has led to "numerous instances of murders and attempted murders; assault with deadly weapons back and forth." He identified firearms possession as one of the Norteños' numerous illicit activities and acknowledged that firearms were used and among the most common and prized weapons in the ongoing war between Norteños and Sureños. Inspector Draper considered the firearms in Arreola's car tools of the gang war and the kinds of weapons gathered and used in the Norteños' turf war with the Sureños. Gathering significant firepower was important for Norteños and enabled them to inflict great damage on the gang's enemies. Inspector Draper opined that possessing those weapons in gang territory would benefit the Norteño organization.
Inspector Draper considered the 200-block of Dumbarton—where Arreola had initially picked up Figueroa—as the "heart of [the Little Mexico Gang's] turf" and an area with which the Little Mexico Gang identifies. The Williams Avenue area was also within the Little Mexico Gang's turf.
Figueroa was the sole defense witness. When he was 10 or 11 years old, he started hanging out with Norteños in Dumbarton, the neighborhood where he has always lived or stayed and which he described as a known gang area. He too identified several Norteño subsets in Redwood City, including the Little Mexico Gang. Dumbarton Avenue was the center of Little Mexico Gang territory, where lots of gang activity occurred.
He described multiple levels to the Norteños structure. The Northern Structure, or Nuestra Raza, was the midlevel leadership tier that reported to Nuestra Familia, which controlled the gang. He agreed that guns were important to Norteños for defense purposes. He acknowledged there was a street war between Norteños and Sureños in Redwood City involving guns in which each side is attempting to kill the other.
Figueroa had been to prison numerous times and was generally housed in the "security housing unit" or "SHU," a maximum security isolation unit housing the most significant gang threats to the prison. He acknowledged being active in the prison gang culture the first time he was incarcerated. However, when asked if he had a "high status" in the Norteños, Figueroa responded he did not. He explained he had a drug addiction which was against gang rules and which led to his expulsion by the gang and his invalidation. Addressing his tattoos, Figueroa said that many of them simply signified his neighborhood. He said his "huelga" tattoo was a regular tattoo with no connection to the Northern Structure. It merely indicated his Northern California origins. He understood others used the huelga tattoo as a validation point for Northern Structure members but criticized this as a dated concept because the huelga was now used by Northerners generally.
Moreover, in April 2013, when he was last in prison, he requested and submitted to an "inactive review" of his gang status. In such a review, a panel of wardens, officers, and gang investigators review a gang affiliate's tattoos, criminal history, direct gang links, any prison incidents and rule violations to determine whether he continues to be active with the gang. Figueroa, now 37, explained that after being in the gang for nearly 26 years, he sought the review because he no longer wanted to be a gang member. His health was deteriorating, and he did not want to die in prison. His panel concluded he was inactive and had withdrawn from the gang. As a result, he was released from the SHU and placed in the general prison population. Figueroa understood this transfer to mean that the panel found him to no longer be active in the gang. So in May 2013, when he was released from prison, Figueroa said he was an inactive gang member.
The significance of his inactive review and its results were explored during trial. On cross-examination, Figueroa confirmed that his inactive review was different from a "dropout procedure" in which one actually leaves the gang and debriefs law enforcement on all known gang secrets. He explained the inactive review showed he was "no longer promoting [] gang activity." He admitted that inactive review had "nothing to do with actually leaving the gang."
Nonetheless, Figueroa insisted that when the deputies stopped him on March 21, 2015, he "had no participation in the gang." He said he called Arreola that evening for a ride to the hospital because he was ill. Arreola, whom he had met at a party and did drugs with somewhat regularly, had given him rides before, including to the hospital, since Figueroa did not have a car. When Arreola came to pick him up that evening, Figueroa said Alvarado—whom he had never met and did not know was a Norteño—was already in the back seat. At the time he entered the car, he saw no guns but noticed a machete which did not trouble him because he knew Arreola was a gardener and had seen it before.
Even though he thought they would be driving directly to the hospital, they went to a fast-food restaurant which he did not want to do. There, he used the restaurant bathroom for around 10 minutes. When he returned to the car, he noticed a black rifle case on the center console between the front seats. He asked about the case and realized for the first time there were guns in the car. He became upset because he had not been informed there were guns and he knew being around firearms violated his probation/parole and could land him back in jail. He sought to get out of the car but Arreola did not let him leave. He said he never touched or handled any of the weapons in the car.
When they realized a patrol car was trailing them, Figueroa said he told Arreola to stop and let him out because he wanted nothing to do with the guns. At that point, Arreola started to slow and pull over, but from the backseat Alvarado yelled, "They're going to take us. Don't stop. Go. Go. Go. Go. Go. Go." Arreola then accelerated the car back into moving traffic with the patrol car still behind it. When they eventually pulled over, Figueroa opened his door, got out of the car, put his hands in the air, and told officers he could not breathe and that he thought he was having a heart attack. He was coughing and gagging. His heart was beating fast. His blood pressure was rising, and he thought he was also having an asthma attack and experiencing pneumonia. An officer pulled him down, handcuffed him, and set him on the ground in front of the patrol car. Later, medical personnel examined him on the scene, and he was taken by ambulance to San Mateo General Hospital where he was examined again. Upon release from the hospital, he was sent to San Mateo County Jail.
Detective Jose Santiago of the Administrative Classifications Unit for the jail housing Figueroa testified in rebuttal. As part of Detective Santiago's job to maintain the safety and order of the jail, he investigated the gang status of its prisoners to avoid housing assignments that exposed an inmate to risk of assault, such as pairing active gang members with dropouts. He reported that the jail classified Figueroa as an active Northern Structure associate. He was not housed in a protective area reserved for dropouts. He was housed with an active Norteño and the two have had no problems, which would not be the case if Figueroa were a dropout. He described telephone calls made to Figueroa seeking his judgment about others' standings within the gang, as demonstrating his recognition among Norteños as an authority figure. "I have no reservations about listing him as an active associate of the gang," Detective Santiago concluded.
DISCUSSION
A. The Gang Enhancement
Section 186.22, subdivision (b)(1) provides for a sentence enhancement for "any person who is 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 . . . ." "There are two 'prongs' to the [gang] enhancement. [Citation.] First, the prosecution is required to prove the underlying crime was 'committed for the benefit of, at the direction of, or in association with any criminal street gang.' [Citation.] Second, there must be evidence that the crime was committed 'with the specific intent to promote, further, or assist in any criminal conduct by gang members.' " (People v. Rios (2013) 222 Cal.App.4th 542, 561 (Rios).) Figueroa says there was insufficient evidence supporting the gang enhancement on each of his firearm offenses.
In a substantial evidence challenge to a section 186.22, subdivision (b)(1) sentence enhancement, we "must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) " 'A reasonable inference, however, "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence." ' " (People v. Raley (1992) 2 Cal.4th 870, 891, superseded by statute on other grounds as stated in People v. Brooks (2013) 3 Cal.5th 1, 63, fn. 8.) A trier of fact may rely on inferences to support a conviction only if those inferences are "of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt" that the inferred facts are true. (Ibid.) "Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate ' "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." [Citations.]' " (In re Alexander L. (2007) 149 Cal.App.4th 605, 610.) " '[The] relevant question [under the substantial evidence standard of review] is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) Here, there is sufficient evidence to support both prongs of the gang enhancement.
The prosecution sufficiently proved Figueroa's crimes were "for the benefit of" a criminal street gang within the meaning of section 186.22. In People v. Garcia (2007) 153 Cal.App.4th 1499 (Garcia), the defendant was stopped for a traffic violation and officers found an unregistered, loaded handgun in the fuse box on the driver's side of his truck. (Id. at pp. 1502-1503.) There was evidence that in addition to being an active gang member who had knowledge of the inner workings of the gang, the defendant had been in the gang for many years and had committed enough street crimes to have gained respect within the gang. (Id. at p. 1504.) An expert testified that guns were "huge" within the gang, that if a gang member possessed a gun, all of the other gang members would know about it, and that the gang's status would benefit from a gang member's reputation for carrying a firearm. (Id. at p. 1506.) The expert explained guns were used to intimidate members of their own gang, as well as other gangs and described " 'possession of the gun [as] power within the gang itself.' " (Ibid.) On this evidence, the court found sufficient evidence supporting the jury's true finding that the defendant possessed the firearm for the benefit of a gang. (Id. at p. 1512.)
Similarly, here there is evidence that Figueroa was not only an active member of the Norteño gang but a gang leader. Figueroa acknowledged he had been part of the gang for over 25 years. Detective Santiago had "no reservations about listing him as an active associate" of the Northern Structure. Inspector Draper also considered him an active member of the Northern Structure and classified him as a "top five" Norteño leader in the area. Inspector Draper also offered expert testimony on the role firearms played in the street war between Figueroa's gang and the rival Sureños, describing them as the type of significant firepower important for use in their gang conflict. This is sufficient evidence to support the jury's finding that Figueroa was in possession of the three firearms for the gang's benefit.
Figueroa argues this prong of the gang enhancement required the prosecution to prove he was going to use the firearms in the Norteño-Sureño war, which it failed to do. Not so. " 'There is no statutory requirement . . . that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing.' " (People v. Albillar (2010) 51 Cal.4th 47, 66 (Albillar).) Further, "[i]t is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation." (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).) For example, expert testimony that an offense enhanced a gang's respect with other gangs is sufficient to show it was committed for the benefit of the gang. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1384.) Moreover, this prong is just as easily satisfied by the substantial evidence that Figueroa possessed the firearms "in association with" a criminal street gang within the meaning of section 186.22, subdivision (b). Figueroa was accompanied by Alvarado, also a known Norteño, as he gathered firearms. This evidence was an adequate and independent basis for the conclusion Figueroa had the firearms for the gang's benefit. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1332-1333; In re Daniel C. (2011) 195 Cal.App.4th 1350, 1358-1359 (Daniel C.).)
Figueroa also relies on Frank S., supra, 141 Cal.App.4th 1192, but that case does not apply to this prong of the analysis. There, the defendant was found with a knife. (Id. at p. 1194.) He admitted to the officers he had the knife to protect himself from other gang members, who saw him as friendly to a rival gang. (Ibid.) The court ruled that certain gang expert testimony was not enough to support a finding the defendant harbored the requisite intent to promote, further or assist a gang. (Id. at p. 1196.) It found "no substantial evidence supporting the specific intent element" of the gang enhancement, and then noted it "need not respond to [the defendant's] other contention, that the prosecution failed to provide the primary activities element." (Id. at p. 1199, emphasis added.) Since Frank S. did not address the first prong of the gang enhancement, it does not so apply.
The prosecution also sufficiently proved that Figueroa was in possession of the firearms "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) Our Supreme Court has held that the gang enhancement's scienter requirement may be satisfied with proof "that the defendant intended to and did commit the charged felony with known members of a gang," from which "the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Albillar, supra, 51 Cal.4th at p. 68.) " 'Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.' " (Rios, supra, 222 Cal.App.4th at pp. 567-568.)
Here, there was more than adequate proof that Figueroa intended to and committed the charged felonies with known members of a gang. Figueroa met Alvarado, a known street-level Norteño, at the location he picked up the rifle case. From there, the two went in Arreola's car for the next firearm pickup, and Figueroa set the blanket-wrapped rifles next to Alvarado on the backseat. Both Figueroa and Alvarado were in the car when the Sheriff's Deputy stopped them. Based on this evidence, the jury could fairly infer Figueroa had the specific intent to promote, further, or assist criminal conduct by those gang members. (See Allibar, supra, 51 Cal.4th at p. 68.)
Figueroa relies on several cases in addition to Frank S. to minimize the sufficiency of evidence regarding Figueroa's intent, but none are analogous. In People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa), the defendant carjacked a vehicle. (Id. at p. 653.) The jury found the gang enhancement true. (Id. at p. 652.) But the appellate court reversed, noting that "[t]here was no evidence that only gang members committed carjackings or that a gang member could not commit a carjacking for personal benefit, rather than for the benefit of the gang." (Id. at p. 662.) Focusing on the absence of gang-related evidence, the court observed that 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 or a [gang] rival. Defendant did not tell anyone . . . that he had special gang permission to commit the carjacking. [Citation.] Defendant was not accompanied by a fellow gang member." (Id. at p. 662, fn. omitted.) Further, there was no evidence the vehicle was used or intended to be used to transport other gang members, or assist in gang activities (e.g., drug transport). (Id. at pp. 662-663.) Without such evidence, the court deemed the expert testimony to be speculative and insufficient to justify the gang enhancement. (Id. at p. 663.)
Figueroa also cites Daniel C., supra, 195 Cal.App.4th 1350. In that case, the minor, a gang affiliate, entered a supermarket with two companions, and, after the companions left the store, he took a liquor bottle and tried to leave without paying for it. (Id. at p. 1353.) When confronted, the minor broke the bottle and hit a store employee with it, and then fled with his companions. (Id. at pp. 1353-1354.) The appellate court concluded that substantial evidence did not show the minor had the specific intent to promote, further, or assist any criminal conduct by gang members. (Id. at p. 1364.) There was no evidence the minor and his companions planned to commit a violent crime, or that they identified themselves in the store as gang members. (Id. at p. 1363.) Instead, it appeared from the evidence that the minor simply intended to walk away from the market with the stolen bottle of liquor, and the assault was only a matter of happenstance. (Id. at p. 1363.)
Rios, supra, 222 Cal.App.4th 542, is another case to which Figueroa attempts to draw similarities. There, the defendant was driving alone in a stolen car when police stopped him. (Id. at p. 547.) The police found a concealed, unregistered firearm in the car. (Id. at p. 548.) At booking and upon intake, the defendant told officers he was a gang member. (Id. at p. 549-550.) The gang expert testified that vehicle theft and possession of firearms were among the primary activities of the defendant's gang. (Id. at p. 551.) The appellate court found this evidence insufficient to support a finding of specific intent, noting that the gun possessed by the defendant was not used to intimidate anyone in the community; there was no evidence that a victim knew defendant was acting with a gang purpose; there was no evidence that the stolen car was used to transport gang members or to commit another gang crime; and the defendant was not in gang territory. (Id. at pp. 574-575.)
Each of these cases is distinguishable. Unlike the defendants in Frank S., Ochoa, Daniel C., and Rios, Figueroa was in the heart of gang territory when he was found in possession of the firearms. Figueroa also committed the crimes with a fellow Norteño gang member, Alvarado, which was not the case in Frank S., Ochoa, Daniel C., or Rios, where the defendants were alone.
Figueroa also relies on People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), which provides his strongest support, but it, too, is distinguishable. In Ramon, the defendant and his passenger were members of the same gang, and they were in their gang's territory when police stopped them driving a stolen truck with a gun under the driver's seat. (Id. at p. 847.) The defendant was convicted of receiving a stolen vehicle and various firearm offenses, with gang allegations found true as to all of them. (Id. at p. 846.) The appellate court reversed the gang enhancement, concluding that the expert opinion "could not provide substantial evidence to support the jury's finding" because "[t]here were no facts from which the expert could discern whether [the defendant] and [the passenger] were acting on their own behalf . . . or were acting on behalf of the [gang]." (Id. at p. 851.) The defendant's presence in gang territory with another gang member "standing alone" was inadequate to establish specific intent. (Ibid.)
In contrast to Ramon, there is more evidence here to support the true findings beyond just Figueroa's possession of firearms in gang territory with a fellow gang member. We have already discussed the evidence of Figueroa collecting firearms from multiple locations, keeping them in Arreola's car and Alvarado joining him in the process. There is also evidence of Figueroa arranging for the ride from Arreola for this purpose and directing Arreola to multiple locations in gang territory where multiple firearms were ready and available for him to retrieve. A jury could reasonably infer from these facts that Figueroa had a deliberate plan—and the specific intent—to engage or assist in criminal conduct. These facts provide more detail than in Ramon and more than adequately support a finding of specific intent.
The two arguments Figueroa adds in his reply brief do not compel a different result. First, he contends the People cite no analogous case that would verify the application of the gang enhancement. But no such requirement exists. Generally, "[r]eviewing the sufficiency of evidence . . . necessarily calls for analysis of the unique facts and inferences present in each case, and therefore comparisons between cases are of little value." (People v. Rundle (2008) 43 Cal.4th 76, 137-138, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) While we have distinguished cases raised by Figueroa to be responsive to his arguments, the People need not cite a case with exact symmetry to the fact pattern here for us to affirm.
Second, in an apparent attempt to interject his own contrary testimony into the analysis, Figueroa contends that the case must be resolved in light of the whole record rather than the "isolated bits of evidence" favorable to the People's case. While we resolve a substantial evidence challenge on the whole record, we do so "in the light most favorable to the judgment below." (Frank S., supra, 141 Cal.App.4th at p. 1196.) Even if we account for Figueroa's contrary testimony—which was rejected by the jury as less than credible—there was sufficient, credible evidence in the record supporting the gang enhancement, and we affirm on the basis of that evidence.
C. Ineffective Assistance of Counsel
Figueroa contends his trial counsel was ineffective for failing to object to the court's imposition of consecutive sentences for the three firearms charges and argues his trial counsel should have advocated for concurrent sentences.
To establish ineffective assistance of counsel, a "defendant must show that counsel's representation fell below an objective standard of reasonableness" and that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington (1984) 466 U.S. 668, 688, 686.) "In order to prevail on a such a claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." (People v. Ray (1996) 13 Cal.4th 313, 349.) "In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny [citation].' . . . [C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Broditt (1998) 61 Cal.App.4th 1312, 1335.) A defendant must also establish counsel's performance prejudiced his defense. (Strickland, supra, 466 U.S. at p. 687.) To establish prejudice, a defendant must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) Courts may reject an ineffective counsel claim if it finds counsel's performance was reasonable or the claimed error was not prejudicial. (Id. at p. 687.)
Under section 1170, subdivision (c), "[t]he court shall state the reasons for its sentence choice on the record at the time of sentencing." (§ 1170, subd. (c).) This applies to a court's decision to impose a consecutive sentence. (See People v. Neal (1993) 19 Cal.App.4th 1114, 1117.) California Rule of Court, rule 4.406, subdivision (b)(5) affirms the requirement that the court provide a statement of reasons for imposing consecutive sentences. (Cal. Rules of Court, rule 4.406, subd. (b)(5).) A sentencing court's failure to state reasons for imposing a consecutive sentence is reversible error. (People v. Tillotson (2007) 157 Cal.App.4th 517, 545.) But a defendant's failure to object to the trial court's failure to state its reasons for imposing a consecutive sentence waives the error on appeal. (People v. Morales (2008) 168 Cal.App.4th 1075, 1084.)
California Rule of Court, rule 4.425 sets forth the criteria for concurrent versus consecutive sentences: "Criteria affecting the decision to impose consecutive rather than concurrent sentences include: [¶] (a) [Criteria relating to crimes] Facts relating to the crimes, including whether or not: [¶] "(1) The crimes and their objectives were predominantly independent of each other. [¶] (2) The crimes involved separate acts of violence or threats of violence. [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. [¶] (b) [Other criteria and limitations] Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except (i) a fact used to impose the upper term, (ii) a fact used to otherwise enhance the defendant's prison sentence, and (iii) a fact that is an element of the crime shall not be used to impose consecutive sentences." (Cal. Rules of Court, rule 4.425.) --------
Here, Figueroa's ineffective assistance claim fails because he cannot show the absence of a rational tactical purpose for his counsel's failure to object to consecutive sentences. Before proceeding to trial, the record reflects the court proposed a nine-year sentence, and the prosecution offered 15 years at the beginning of trial. After trial, the prosecution sought a 19-year, 8-month sentence. Figueroa's counsel requested a sentence "more in the range of 12 years." Ultimately, the court imposed a state prison sentence of 15 years, 8 months. Because the court imposed a sentence four years shorter than the one sought by the prosecution and just 8 months longer than the pre-trial offer, we cannot conclude there was no rational tactical purpose for trial counsel's failure to object to the consecutive sentences. Nor, on this record, can we conclude Figueroa was prejudiced by any failure to object. Thus, we cannot conclude counsel was ineffective.
D. Dismissal of Prior Serious Conviction —Romero Motion
The last issue Figueroa raises is whether the trial court abused its discretion when it refused to dismiss a 1998 burglary conviction used as a sentence enhancement as a prior serious felony.
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the California Supreme Court held that a trial court may strike or vacate a finding under the three strikes law that a defendant has previously been convicted of a serious and/or violent felony "in furtherance of justice," pursuant to Penal Code section 1385, subdivision (a). (Id. at pp. 529-530.) In ruling on such a motion, the court 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." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) Only "extraordinary" circumstances justify a finding that a defendant is outside the spirit of the three strikes law. (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) We review the trial court's denial of such a motion under the deferential abuse of discretion standard. (Id. at pp. 374-376.)
The trial court did not abuse its discretion in refusing to strike Figueroa's prior burglary conviction. As the trial court observed, since his first felony conviction in 1997 for narcotics possession, Figueroa has been convicted of four additional felonies through 2011. Probation for his 1997 conviction was revoked. For his felony conviction in 1999, he violated parole. For his 2005 felony conviction, he again violated parole. For his 2011 felony conviction, he was under post-release community supervision, which had to be revoked on numerous occasions. "[T]he overwhelming majority of California appellate courts have . . . affirmed the refusal to dismiss[] a strike of those defendants with a long and continuous criminal career." (People v. Strong (2001) 87 Cal.App.4th 328, 338.) Given Figueroa's overall record and recidivism, the trial court had a sufficient basis for denying his Romero motion.
Figueroa compares himself favorably with the defendant in Williams, supra, 17 Cal.4th 148, whose prior strike was excused, and argues he has a much more limited criminal history. He contends his burglary conviction was his most serious and nearly two decades old but his record otherwise consists of convictions related to substance abuse and a misdemeanor domestic violence conviction. The trial court had this information when it considered the Romero motion. At most, the facts Figueroa emphasizes and the conclusions he draws "merely afford an opportunity for a difference of opinion." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) It is apparent that in reviewing Figueroa's record, the court saw a nearly two-decade criminal history and Figueroa's recidivism. We are not authorized to substitute our judgment for the trial court's and cannot conclude that its ruling here was "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.)
People v. Cluff (2001) 87 Cal.App.4th 991, the other case Figueroa cites for support, is inapplicable. In Cluff, the defendant failed to complete his annual sex offender registration within five days of his birthday. (Id. at p. 994.) Characterizing the defendant's offense as "the most technical violation" it had seen of the sex offender registration requirements, the appellate court held the trial court abused its discretion when it denied the Romero motion. (Ibid.) The court saw no intent to deceive or evade law enforcement, no dispute that appellant had consistently registered in jurisdictions where he lived, and the defendant was willing to cooperate with police. (Id. at p. 1001.) Also, the defendant had not re-offended since his release from prison, and a court-appointed psychologist testified that with proper probation supervision and treatment he would probably not re-offend. (Id. at p. 999.) We see no comparison between the "nonviolent failure to register" in Cluff and Figueroa's possession of firearms. Figueroa's conduct was not merely a "technical violation" but in the trial court's words an "incredibly frightening and dangerous" matter.
E. Section 667.5 , Subdivision (b) Enhancements
Finally, Figueroa contends the court should have stricken rather than stayed the three enhancements pursuant to section 667.5, subdivision (b). The People agree and concede the error, so do we. Section 667.5, subdivision (b) provides a one-year sentence enhancement for each of the defendant's prior prison terms where the defendant has not remained free of prison custody and conviction of a new offense for five years. (§ 667.5, subd. (b).) The imposition of the enhancement is mandatory once the prior prison term is found true. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Accordingly, such enhancements cannot be stayed; they must be either imposed consecutively or stricken. (Ibid.) "The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal." (People v. Bradley (1998) 64 Cal.App.4th 386, 391.) Here, the jury found true three prior prison terms served by Figueroa within five year periods, and the court stayed, rather than struck, the one-year enhancements for each. We modify the judgment to strike the enhancements.
DISPOSITION
The judgment is modified to strike the prior prison term enhancements under section 667.5, subdivision (b) previously stayed by the trial court. The clerk of the superior court is directed to modify the abstract of judgment to reflect this disposition, and is further directed to forward the corrected abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
/s/_________
Siggins, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Pollak, J.