Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. VA102775, Beverly Reid O’Connell, Judge.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Arturo Martinez appeals from the judgment entered following his conviction by a jury on two counts of possessing illegal drugs for sale and one count of being under the influence of a controlled substance with special findings he possessed the drugs for sale to benefit a criminal street gang. Martinez contends the evidence is insufficient to support the gang enhancement and the trial court erred in failing to stay his sentence on the second gang enhancement under Penal Code section 654. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Martinez was charged by amended information with one count of possession of heroin for sale (Health & Saf. Code, § 11351) (count 1) and one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378) (count 2). The information specially alleged pursuant to Penal Code section 186.22, subdivision (b)(1)(A), Martinez had committed the offenses for the benefit of, at the direction of or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members. Because the court had previously allowed these felony charges to be consolidated with a pending misdemeanor case, the amended information also charged Martinez with being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) (count 3); driving when the privilege has been suspended or revoked (Veh. Code, § 14601.1, subd. (a)) (count 4); and driving without evidence of financial responsibility (Veh. Code, § 16028, subd. (a)) (count 5).
Martinez pleaded not guilty to counts 1, 2 and 3 and denied the special allegations. As to count 4, Martinez waived his right to trial and pleaded no contest. Count 5 was dismissed on the People’s motion.
2. Summary of the Evidence Presented at Trial
a. The People’s evidence
i. Counts 1 and 2
On October 4, 2007 Los Angeles County Sheriff’s Detective Brandt House and other members of the department’s gang unit served a search warrant at a house on Arline Avenue in the City of Hawaiian Gardens. As House was approaching the front door, he looked through a window and saw Martinez talking to Jessie Villanueva. Martinez and Villanueva ran from the house after the deputies announced their presence but were quickly apprehended. Deputies found $130 in small bills in Martinez’s pocket; Villanueva did not have any money on him.
During a search of the house Detective House found a deodorant container wrapped in duct tape in the bedroom where Martinez and Villanueva had been talking. Inside the container were 14 packets of tar heroin, later determined to weigh 2.56 grams, and 21 small plastic bags containing crystal methamphetamine with a total weight of 4.69 grams. On the shelf next to the deodorant container House found three notebooks with entries recording, among other things, sales of heroin, methamphetamine and rock cocaine. One of the notebooks had “Mecanico” written on the cover, which Martinez had told House was his nickname. Another notebook contained a page on which was written “V,” “Hawaiian Gardens,” “R” and “13.” House, who testified as an expert on street gangs and illegal drug sales, explained those were references to the gang Varrio Hawaiian Gardens, which claims the entire City of Hawaiian Gardens as its territory, and the prison gang the Mexican Mafia: The number “13” written at the end of a gang’s name means the gang aligns itself with the Mexican Mafia (“m” is the thirteenth letter of the alphabet), follows its rules and pays it “taxes.” The notebooks were sitting on a piece of cardboard with the letters “HG” on it.
Both Martinez and Villanueva were initially charged with selling illegal drugs. After Detective House interviewed Villanueva, however, House concluded Villanueva, who at the time of the arrest was on parole for possession of heroin, was only a drug user, not a seller. Villanueva agreed to plead guilty to possession of illegal drugs with a 16-month state prison term and to testify against Martinez.
At trial Villanueva testified he was a heroin addict who had, by the summer of 2007, purchased illegal drugs in excess of 500 times from a house on Horst Street in Hawaiian Gardens. On occasion Villanueva saw 20 to 30 people buying drugs at the house in the morning and as many seven or eight people during a 15-minute period. Villanueva, who knew Martinez by the name “Mecanico,” met Martinez at the Horst Street house, had seen him there many times and had purchased heroin from him on several occasions. Villanueva identified from photographs several other people from whom he had purchased heroin. He also identified Cesar Landeros and his brother Misael Landeros and explained the Landeros brothers did not sell illegal drugs to end users, but prepared the drugs for sale (that is, they brought the drugs to the Horst Street house and packaged them for sale). They then left with money collected from the actual sellers.
On the evening of October 3, 2007 Villanueva went to the Horst Street house to buy heroin. Marcos Estrada, the person selling heroin that night, did not have any syringes, which Villanueva would also sometimes purchase, and told Villanueva to go to the Arline Avenue house to talk to “Mecanico.” Villanueva did so, and Martinez gave him a syringe. Villanueva injected himself with heroin and fell asleep. After Villanueva woke up at approximately 7:00 a.m., he asked Martinez if could purchase more heroin on credit. Martinez said he did not have enough heroin to give Villanueva any on credit; but, if Villanueva would do some chores, he could later get some heroin. Villanueva did the chores, including going to the Horst Street house to inform the Landeros brothers and Estrada that Martinez needed more drugs to sell. Villanueva was then sent back to the Arline Avenue house to tell Martinez the merchandise would be arriving soon. Shortly after he returned to the Arline Avenue house, sheriff’s deputies arrived to serve the search warrant; and Martinez and Villanueva were arrested.
Detective House testified he had been to the Horst Street house at least 25 times, including serving six search warrants. House had observed Varrio Hawaiian Gardens gang graffiti in the house and on several items of paperwork, found ledgers like the ones recovered at the Arline Avenue house recording drug sales, seen mixing bowls with residue of heroin, recovered numerous firearms and arrested several members of the Varrio Hawaiian Gardens gang at the house. House stated the Varrio Hawaiian Gardens gang had been in existence since the early 1960’s, there were more than 1,000 documented members of the gang and 250 documented affiliates and the primary illegal activities of the gang included murder, carjacking and illegal drug sales. Regarding illegal drug sales, House explained gang members themselves did not generally handle or sell drugs but would use Mexican nationals to do the work, who were informed how the gang was linked to the overall operation. The gang would collect “taxes” from the sellers—anywhere from $500 to $4,000 a month depending on size of the operation. Failure to pay taxes would be met with serious repercussions, including assault, theft of the illegal drugs and other property or death. The Varrio Hawaiian Gardens gang would then pay “taxes” to the Mexican Mafia. The profits from the sales were used to purchase additional illegal drugs for sale, purchase firearms and to pay legal fees and bail for arrested gang members.
With respect to Martinez’s participation in the operation, House testified Martinez, Estrada and another individual were at the bottom of the distribution chain. The Landeros brothers, who were not gang members, were the “drug family” with connections to Mexico, where the drugs originated, and in the middle rung of the operation. At the top were four members of the Varrio Hawaiian Gardens gang, Richard Ramirez, Anthony Rebolledo, Richard Diaz and Alexander Delgado. House opined, although Martinez was not a member of Varrio Hawaiian Gardens, he was an employee or affiliate of the Landeros family and any drug sales made were consummated for the benefit of, at the direction of or in association with the Varrio Hawaiian Gardens gang.
ii. Count 3
In mid-September 2003 Sheriff’s Deputy Ernest Billie stopped Martinez after he had committed a Vehicle Code violation near the Arline Avenue house. Because Martinez exhibited symptoms of being under the influence of a controlled substance, Billie conducted field sobriety tests, which Martinez was unable to satisfactorily perform. Billie arrested Martinez for driving under the influence and without a valid driver’s license. A urine sample collected from Martinez tested positive for methamphetamine and cocaine.
2. The defense’s evidence
Martinez’s theory of defense with respect to counts 1 and 2 was that Villanueva, who testified he, like Martinez, had been employed as a mechanic, was the one selling the drugs. Martinez did not testify in his own defense. His wife testified Martinez had lost his job as a mechanic at a repair shop prior to October 2007, but was fixing cars on his own. Although his average weekly income at the repair shop had been about $500, some weeks he would bring home between $1,200 and $1,500 after he began working on his own.
3. The Jury’s Verdict and Sentencing
The jury found Martinez guilty of one count of possession of heroin for sale and one count of methamphetamine for sale and found true the special allegation Martinez had committed the offenses for the benefit of, at the direction of or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members. The jury also found Martinez guilty of being under the influence of a controlled substance. The trial court sentenced Martinez to an aggregate state prison term of seven years, eight months: the middle term of three years for possession of heroin for sale, plus three years for the gang enhancement, and a consecutive term of 8 months (one-third the two-year middle term) for possession of methamphetamine for sale, plus one year (one-third of the three-year enhancement) for the gang enhancement. The court imposed concurrent terms in county jail of 90 days for being under the influence of a controlled substance and 180 days for count 4, driving when the privilege has been suspended or revoked, to which Martinez had pleaded no contest.
CONTENTIONS
Martinez contends there is insufficient evidence to support the jury’s true finding on the criminal street gang enhancement and the trial court erred in failing to stay his sentence on the second gang enhancement.
DISCUSSION
1. Substantial Evidence Supports the Jury’s True Finding on the Criminal Street Gang Enhancement
To obtain a true finding on an allegation of a criminal street gang enhancement, the People must prove the crimes at issue were “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....” (Pen. Code, § 186.22, subd. (b)(1).) To prove a gang is a “criminal street gang,” the prosecution must demonstrate it has as one of its “primary activities” the commission of one or more of the crimes enumerated in section Penal Code section 186.22, subdivision (e), and it has engaged in a “pattern of criminal gang activity” by committing two or more such “predicate offenses.” (Pen. Code, § 186.22, subds. (e), (f); see People v. Gardeley (1996) 14 Cal.4th 605, 617.) Martinez does not dispute the jury’s findings that Varrio Hawaiian Gardens is a criminal street gang and that his two possession-for-sale offenses were committed for the benefit of, at the direction of or in association with it. He contends only there is insufficient evidence he specifically intended to benefit the Varrio Hawaiian Gardens street gang or assist its members’ criminal conduct.
In reviewing a claim of insufficient evidence in a criminal case, we determine whether, on the entire record viewed in the light most favorable to the People, any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see also People v. Holt (1997) 15 Cal.4th 619, 667.) “In making this assessment the court looks to the whole record, not just the evidence favorable to the [defendant] to determine if the evidence supporting the verdict is substantial in light of other facts.” (Holt, at p. 667.)
“Substantial evidence” in this context means “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.” (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [“‘“[w]hen the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt”’”].) “Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt.” (People v. Millwee (1998) 18 Cal.4th 96, 132.)
Martinez contends the jury’s finding he specifically intended to benefit or assist Varrio Hawaiian Gardens gang members is unwarranted because there was no direct evidence that he knew of the relationship between the Landeros family and Varrio Hawaiian Gardens or that the Landeros family was paying taxes to the gang. Rarely is there direct evidence of the defendant’s mental state; specific intent must often be inferred from circumstantial evidence. (People v. Beeman (1984) 35 Cal.3d 547, 558-559.) Thus, “[c]ommission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” (People v. Villalobos (2006) 145 Cal.App.4th 310, 322; see also People v. Morales (2003) 112 Cal.App.4th 1176, 1198-1199.) Expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 [expert testimony drug offense was gang-related plus evidence defendant received permission from a gang to sell illegal drugs at a mall and admission of gang membership constituted sufficient circumstantial evidence defendant intended to benefit gang].)
There was substantial circumstantial evidence from which the jury could infer Martinez knew Varrio Hawaiian Gardens was involved in the illegal drug sales and his selling activity would benefit the gang. Villanueva testified, in addition to purchasing heroin from Martinez at the Horst Street house, he seen him there approximately 250 times. Detective House testified the Horst Street house had Varrio Hawaiian Gardens gang graffiti inside it and was frequented by a number of gang members, several of whom had been arrested there. Additionally, the notebook with “Mecanico” on the cover found at the Arline Avenue house was on a piece of cardboard with “HG” written on it and next to another notebook that had gang graffiti in it. According to Villanueva, who explained the notebooks’ entries recorded illegal drug transactions, the notebook with the gang graffiti in it had entries by “Mecanico.” The abundant indicia of gang activity at the two drug houses, coupled with House’s testimony regarding the structure of drug operations in Hawaiian Gardens and his explanation that drug sellers were informed of the gang’s involvement in the overall operation, constituted reasonable and credible evidence from which the jury could infer both that Martinez knew of the Varrio Hawaiian Gardens gang’s participation and that he intended to benefit the gang by engaging in the drug transactions.
2. The Trial Court Was Not Required To Stay the Sentence on the Second Gang Enhancement Pursuant to Penal Code Section 654
Martinez contends the trial court should have stayed his sentence on the second gang enhancement under Penal Code section 654, which prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1216; People v. Harrison (1989) 48 Cal.3d 321, 335.) Although Martinez concedes the simultaneous possession of different drugs may be separately punished without violating Penal Code section 654 (see, e.g., People v. Barger (1974) 40 Cal.App.3d 662, 672 [“California courts have uniformly held that section 654 does not preclude multiple punishment for simultaneous possession of various narcotic drugs”]), he argues the second enhancement should have been stayed because his simultaneous possession of heroin and methamphetamine for sale was with the singular intent and purpose to benefit the same street gang.
Penal Code section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
The question whether Penal Code section 654 applies to sentence enhancements that derive from the nature of the offense is currently pending before the California Supreme Court in People v. Rodriguez (2007) 157 Cal.App.4th 14, review granted March 12, 2008, S159497. The specific issue addressed by the Court of Appeal in Rodriguez was whether Penal Code section 654 prohibits separate punishments under Penal Code section 12022.5, subdivision (a), for personal use of a firearm, and Penal Code section 186.22, subdivision (b)(1)(c), the street gang enhancement applicable to violent felonies, when the offense at issue was a violent felony under Penal Code section 667.5, subdivision (c)(8), because the People had charged and proved the firearm-use enhancement. Although the majority of the Court of Appeal held Penal Code section 654 did apply and stayed execution of the firearm-enhancements, the court affirmed imposition of three separate gang enhancements based on the defendant’s three convictions for assault with a firearm after he fired upon three victims during a single incident.
Martinez’s argument is without merit: Section 654 does not preclude punishment for multiple gang enhancements when the underlying offenses are themselves not subject to section 654. In People v. Akins (1997) 56 Cal.App.4th 331, the defendant committed two separate robberies against two separate victims. The court rejected the defendant’s contention it was error to impose two separate sentence gang enhancements, stating, “Although defendant may have had one objective to benefit his gang, the robberies and assaults of Mr. Simpson and Mr. Martin involved separate victims, were separated by time and distance, and were separate robberies.” (Id. at p. 339.) The court further explained, even if it assumed the crimes constituted a continuous course of conduct, the two gang enhancements were proper because there were two independent victims and two distinct robberies. (Ibid.; accord, People v. Bragg (2008) 161 Cal.App.4th 1385, 1403 [multiple enhancements proper under Pen. Code, § 186.22 for three separate attempts to commit murder, each on behalf of the same criminal street gang].)
Martinez’s argument Akins is distinguishable because, in the instant case, the substantive possession offenses occurred at the same time, in the same place and with no distinct or separate victims ignores the very reason multiple convictions may be imposed for the simultaneous possession of different illegal drugs for sale: “[D]ifferent drugs are directed at different buyers—in some cases, at different classes of buyers—and represent different dangers to society” (People v. Menius (1994) 25 Cal.App.4th 1290, 1297). Thus, like Akins, there are multiple victims—the different purchasers. Although the illegal drugs may have been possessed at a single time and in a single place, the drug offenses include the potential, prospective sale of the drugs, which the recovered notebooks demonstrated was intended to occur over an extended period of time. Moreover, Martinez’s argument he had only a single intent to benefit a single gang is, for the most part, true in all gang-related cases. The intent of gang members committing multiple crimes to benefit their gang is in some respects only a single, continuing intent. But to accept this argument and thereby restrict imposition of enhancements under Penal Code section 186.22, subdivision (b), to only one per case, regardless of the number of crimes committed or victims injured, would undermine the very purpose of gang enhancements to eradicate the epidemic of criminal street gang crime. (See People v. Akins, supra, 56 Cal.App.4th at p. 341.) Thus, it was well within the trial court’s broad discretion to determine Penal Code section 654 did not preclude multiple punishments. (See People v. Jones (2002) 103 Cal.App.4th 1139, 1143 [whether Pen. Code, § 654 precludes multiple punishments is a question of fact for the trial court, “which is vested with broad latitude in making its determination,” and the court’s “findings will not be reversed on appeal if there is any substantial evidence to support them”].)
DISPOSITION
The judgment is affirmed.
We concur: ZELON, J., JACKSON, J.