Filed 3/6/13 P. v. Anguiano CA4/1
Opinion following transfer from Supreme Court
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.




                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D058578

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FWV033802)

RAYMOND ANGUIANO, SR.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

Gerard S. Brown, Judge. Reversed in part, affirmed in part, and remanded for

resentencing.



                                                             I.

                                                 INTRODUCTION

         A jury found defendant Raymond Anguiano, Sr., guilty of possession of a firearm

by a felon; possession of methamphetamine; possession of heroin; resisting, obstructing,
or delaying an officer; and street terrorism. Anguiano's street terrorism conviction is

based on his conduct on the day he possessed personal use amounts of methamphetamine

and/or heroin and resisted an officer.1 The evidence that the prosecution presented to

prove the street terrorism charge is that Anguiano was sitting alone, on a porch, when he

noticed police officers approaching him. Anguiano attempted to flee from the officers

and threw the drugs over a fence. It is undisputed that Anguiano, a documented gang

member, was alone at the time.

       In this appeal, Anguiano contends that (1) there is insufficient evidence to support

his conviction for street terrorism; (2) the trial court erred in failing to grant a new trial

with respect to the count charging him with street terrorism; (3) the trial court erred in

failing to instruct the jury that it must unanimously agree on which act formed the basis

of the street terrorism offense; (4) the trial court erroneously instructed the jury that it

could rely on misdemeanor conduct as the "felonious" conduct necessary to support a

conviction for street terrorism; (5) the trial court erred in not granting a new trial on the

ground that trial counsel was ineffective in failing to bring a motion to suppress the

gunshot residue found on Anguiano, relating to the firearm he was found guilty of

possessing; (6) the trial court did not understand that it possessed the discretion to strike

only some, and not all, of Anguiano's prior strike convictions; and (7) he was not validly

convicted of a serious or violent felony in the present case because only the street

terrorism offense constitutes a serious or violent felony and, he maintains, there was


1      The felon in possession of a firearm conviction is based on conduct occurring on a
different day.
                                                2
insufficient evidence to support that conviction, such that the court erred in imposing the

three five-year terms pursuant to Penal Code2 section 667, subdivision (a); in the

alternative, Anguiano argues that if the street terrorism conviction is not reversed, the

court should have imposed only two of the additional five-year enhancement terms

because the court found true that he had suffered only two prior serious felonies.

       We initially filed an opinion in this matter on September 25, 2012. In that

opinion, we concluded that there was insufficient evidence to support Anguiano's

conviction for street terrorism, concluding that a defendant cannot be convicted of street

terrorism where the evidence shows only that the defendant was the sole perpetrator of a

felony that is concededly not gang-related. The Supreme Court granted the People's

petition for review and transferred the case back to this court with directions to reconsider

our opinion in light of People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez).

       The Supreme Court's decision in Rodriguez affirms our prior conclusion that

Anguiano may not be convicted for street terrorism based on his possession of personal

use quantities of drugs while alone on the porch.3 Accordingly, we again reverse

Anguiano's conviction for street terrorism as charged in count 6. We therefore need not

consider Anguiano's other claims with respect to that offense, nor his claims pertaining to

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

3       The jury did not convict Anguiano of the charged felony offense of resisting an
executive officer, but rather, of a lesser included misdemeanor offense. Therefore, his
conduct in resisting an officer cannot be the "felonious conduct" supporting a conviction
for street terrorism under subdivision (a) of section 186.22. The only other felonious
conduct that could support his conviction under subdivision (a) of section 186.22 is his
possession of personal use quantities of methamphetamine and heroin.
                                             3
his sentence, since the trial court will have to resentence him on remand. We otherwise

affirm the judgment, and remand the matter for resentencing.

                                           II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.    Factual background

      1.     The January 12, 2005 incident

      In the late afternoon of January 12, 2005, law enforcement officers were driving to

a home in Rancho Cucamonga to perform a parole check on Anguiano's nephew. The

officers were wearing plain clothes and were driving an unmarked vehicle. As the

officers neared the nephew's residence, they saw Anguiano and another man walking

toward the residence. Deputy Joe Braattan and Parole Agent Ardrick Elmore recognized

Anguiano from previous contacts with him. Anguiano made eye contact with the

officers, dropped a bowl of soup that he had been eating, and started running away.

Braattan and Elmore jumped out of the vehicle and began to chase Anguiano.

      Anguiano first ran north, then turned a corner and ran through an open gate.

Deputy Braattan caught up with Anguiano and ordered him to stop, but Anguiano

continued running. The officers watched Anguiano jump over fences as he tried to

escape.

      Agent Elmore caught up with Anguiano, drew his gun, and ordered Anguiano to

drop to the ground. Anguiano stopped running, but did not comply with the order to get

on the ground. Deputy Braattan then used a taser to stun Anguiano and ultimately

apprehended him.

                                            4
       After officers detained Anguiano, Deputy Braattan retraced the path that Anguiano

had taken during the chase. Along the route, Braattan found a semiautomatic handgun, a

loaded ammunition clip with one expended round, and a cigarette lighter. Braattan did

not see any dirt, moisture or other debris on any of these items.

       Officers transported Anguiano to the police station where his blood was drawn and

he was tested for gunshot residue. Anguiano's blood tested positive for

methamphetamine, cocaine, and opiates consistent with heroin. In addition, "one unique"

particle of gunshot residue was found on Anguiano's left hand.

       2.     The February 1, 2005 incident

       On the morning of February 1, 2005, several law enforcement officers drove to the

same residence in Rancho Cucamonga in order to perform a parole check on another of

Anguiano's nephews. After parking their vehicle nearby, the officers started to walk

toward the house and saw Anguiano sitting on the front porch, looking down at

something in his hands.4 When Anguiano looked up and saw the approaching officers,

he jumped up and ran into the residence.

       Several officers chased Anguiano through the house and out the back door, into

the backyard. Anguiano threw a cell phone and some plastic bags over a fence. Deputies

apprehended Anguiano near a garage in back of the house.

       In his pockets, Anguiano had a syringe, a spoon with a cotton ball stuck to it, and a

bag of marijuana. Anguiano also had two marks on his forearm that appeared to be fresh


4       It is not clear from the record why Anguiano, who had been arrested a few weeks
prior to this incident, was not in custody at this point in time.
                                             5
needle injection sites that were bleeding. Deputy Paul Gallant recovered the cell phone

and bags that Anguiano had tossed over the fence. The bags contained usable amounts of

methamphetamine, heroin, and marijuana.

B.     Procedural background

       Anguiano was charged with possession of a firearm by a felon (§ 12021,

subd. (a)(1); count 1); possession of a firearm while under the influence (Health & Saf.

Code, § 11550, subd. (e); count 2); possession of a controlled substance, i.e.,

methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 3); possession of a

controlled substance, i.e., heroin (Health & Saf. Code, § 11350, subd. (a); count 4);

resisting an executive officer (§ 69; count 5); and street terrorism (§ 186.22, subd. (a);

count 6). Counts 1 and 2 related to the events of January 12, 2005, while counts 3

through 6 related to the February 1, 2005 incident.

       The information alleged that Anguiano committed count 1, possession of a firearm

by a felon, for the benefit of, at the direction of, or in association with a criminal street

gang (§ 186.22, subd. (b)). In addition, the information alleged that Anguiano had served

four prior prison terms (§ 667.5, subd. (b)), that he had eight prior strike convictions

(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and that he had been convicted of three

prior serious felony convictions (§ 667, subd. (a)(1)).

       Jury trial commenced on September 24, 2007. The jury found Anguiano guilty on

counts 1, 3, 4 and 6, as charged. With respect to count 5, the jury found Anguiano guilty

of the lesser included offense of resisting, obstructing or delaying an officer in violation



                                               6
of section 248, subdivision (a)(1).5 The jury acquitted Anguiano on count 2, and the

court declared a mistrial with respect to the gang enhancement allegation connected to

count 1 after the jury was unable to reach a verdict as to that enhancement.

       The trial court found all of the alleged prior conviction allegations to be true.

Anguiano filed a motion for a new trial, which the court denied.

       The trial court sentenced Anguiano to 25 years to life on count 6, and added three

consecutive five-year enhancements for three prior serious felony convictions. The court

imposed an additional consecutive term of 25 years to life with respect to count 3, plus

four years for the four prison priors, as well as a concurrent term of 25 years to life plus

four years with respect to count 4. With respect to count 1, the trial court imposed and

stayed (pursuant to § 654) a term of 25 years to life plus four years.6 The total prison

term amounted to 69 years to life.

       Anguiano filed a timely notice of appeal. We filed an opinion in this matter on

September 25, 2012, in which we concluded that reversal of Anguiano's conviction on

count 6 and resentencing on the remaining counts was in order. We certified the opinion

for publication on October 22, 2012. The Supreme Court subsequently issued its opinion

5      The trial court later dismissed count 5 pursuant to section 1118.1.

6       The trial court incorrectly stayed Anguiano's sentence on count 1 pursuant to
section 654, apparently based on the erroneous presumption that the street terrorism
charge in count 6 was predicated on the same conduct as the felon in possession of a
firearm charge in count 1. However, as the charging document makes clear, the street
terrorism charge in count 6 is based on his criminal conduct on February 1, 2005, while
the felon in possession of a firearm charge in count 1 is based on Anguiano's conduct on
January 12, 2005, nearly three weeks earlier.

                                              7
in Rodriguez, supra, 55 Cal.4th 1125 in late December 2012, granted review in this case,

and transferred it back to our court for reconsideration in light of Rodriguez.

                                             III.

                                       DISCUSSION

       Anguiano raises several grounds for reversing his convictions on counts 1 and 6,

and also raises claims of error related to his sentence.

       We conclude that there is insufficient evidence to support Anguiano's conviction

for street terrorism as alleged in count 6. We therefore reverse his conviction on that

count.7 The enhancements associated with count 6 are necessarily reversed as well.8

However, we conclude that Anguiano's trial counsel did not provide ineffective

assistance in failing to move to suppress the gunshot residue, and therefore affirm

Anguiano's conviction on count 1.

A.     Anguiano's conviction for street terrorism in count 6 must be reversed

       Anguiano was convicted of the substantive offense of street terrorism, under

subdivision (a) of section 186.22. Subdivision (a) of section 186.22 states in pertinent

part: "Any person who actively participates in any criminal street gang with knowledge

that its members engage in or have engaged in a pattern of criminal gang activity, and


7     As a result, we need not consider Anguiano's alternative claims as to why his
conviction on count 6 should be reversed.

8      In addition, we need not address Anguiano's contention that the trial court failed to
understand its discretion with respect to striking Anguiano's prior strikes, although we
note that the record does not appear to support Anguiano's claim. We presume that on
remand for resentencing, the court will properly exercise its discretion with respect to
whether to strike any, some, or none of Anguiano's prior strikes.
                                              8
who willfully promotes, furthers, or assists in any felonious criminal conduct by members

of that gang, shall be punished as a felony or misdemeanor."

        Based on the statutory language, the substantive offense of street terrorism defined

in section 186.22, subdivision (a) has three elements: "[(1)] Active participation in a

criminal street gang, in the sense of participation that is more than nominal or

passive . . . [,] [(2)] 'knowledge that [the gang's] members engage in or have engaged in a

pattern of criminal gang activity,' and [(3)] . . . 'willfully promot[ing], further[ing], or

assist[ing] in any felonious criminal conduct by members of that gang.' (§ 186.22(a).)"

(People v. Lamas (2007) 42 Cal.4th 516, 523.) Anguiano does not dispute that there was

sufficient evidence presented at trial to support the first two elements of this offense—

i.e., that he was an active participant in a criminal street gang, and that he had knowledge

that his gang's members engaged in or have engaged in a pattern of criminal gang

activity. However, Anguiano contends that there was not sufficient evidence that in

committing the offenses charged in this case, he "willfully promote[d], further[ed], or

assist[ed] in . . . felonious criminal conduct by members of [his] gang" (§ 186.22, subd.

(a)).

        In Rodriguez, supra, 55 Cal.4th 1125, the Supreme Court considered whether a

defendant violates section 186.22, subdivision (a) "if he commits a felony, but acts

alone[.]" (Rodriguez, supra, at p. 1128.) The Supreme Court determined that in order "to

satisfy the third element [of section 186.22, subdivision (a)], a defendant must willfully

advance, encourage, contribute to, or help members of his gang commit felonious

criminal conduct" and concluded that "section 186.22, subdivision (a) requires that

                                               9
felonious criminal conduct be committed by at least two gang members, one of whom

can include the defendant if he is a gang member. [Citation.]" (Rodriguez, supra, at p.

1132.)

         As we explained in our prior opinion, in this case the People concede that there

were no other gang members involved in the felonious conduct underlying the street

terrorism charge for which Anguiano was convicted.9 It is clear that under Rodriguez,

supra, 55 Cal.4th at page 1139, a defendant may not be convicted of violating section

186.22, subdivision (a) when he acts alone in committing the felonious conduct intended

to support the street terrorism charge. We therefore reverse Anguiano's conviction for

street terrorism in count 6. The enhancements associated with count 6 are necessarily

reversed, as well.

B.       Trial counsel did not render ineffective assistance by not moving to suppress the
         gunshot residue

         Anguiano contends that his trial court rendered ineffective assistance by failing to

bring a motion to suppress the gunshot residue found on him immediately after the

January 12, 2005 incident. According to Anguiano, if his attorney had made such a

motion, the court would likely have granted it because officers did not have reasonable

suspicion to stop him on January 12, 2005. We conclude that Anguiano's trial counsel




9      The People argue in their appellate briefing that there is sufficient evidence to
support Anguiano's conviction for street terrorism "even though the evidence presented
demonstrated that appellant was an active gang member committing a nongang related
offense by himself." (Italics added.)
                                              10
did not provide ineffective assistance in failing to bring this motion because doing so

would have been futile.

       During closing argument, the prosecutor argued that the gunshot residue found on

Anguiano constituted evidence that he had possessed a gun. The jury ultimately

convicted Anguiano of count 1, possession of a firearm by a felon. Anguiano

subsequently fired his trial counsel. His new trial attorney filed a motion for a new trial,

arguing that Anguiano's former attorney had provided ineffective assistance by failing to

move to suppress the results of the gunshot residue test that was performed after

Anguiano's January 12, 2005 arrest. At a hearing, Anguiano's former attorney testified

that Anguiano had asked him to move to suppress the gunshot residue test results. The

attorney stated that he had not filed a motion to suppress the results of the gunshot

residue test because he believed that a motion to suppress would not have been granted.

Specifically, the attorney believed that since police had found the gun along Anguiano's

flight path prior to arresting Anguiano, the gun could not have been found as a result of

the arrest. The trial court determined that a motion to suppress would not have been

meritorious, and denied Anguiano's new trial motion.

       On appeal, Anguiano contends that the trial court erred in denying his motion for a

new trial because his original trial counsel rendered ineffective assistance by failing to

move to suppress the gunshot residue evidence.

       "An appellant claiming ineffective assistance of counsel has the burden to show:

(1) counsel's performance was deficient, falling below an objective standard of

reasonableness under prevailing professional norms; and (2) the deficient performance

                                             11
resulted in prejudice. [Citations.]" (People v. Montoya (2007) 149 Cal.App.4th 1139,

1146 (Montoya).) "To establish prejudice, '[t]he defendant must show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.' [Citations.] 'A reasonable probability is a

probability sufficient to undermine confidence in the outcome.' [Citation.] In

demonstrating prejudice, the appellant 'must carry his burden of proving prejudice as a

"demonstrable reality," not simply speculation as to the effect of the errors or omissions

of counsel.' [Citation.]" (Ibid.)

          "In determining whether counsel's performance was deficient, we
          exercise deferential scrutiny. [Citations.] The appellant must
          affirmatively show counsel's deficiency involved a crucial issue and
          cannot be explained on the basis of any knowledgeable choice of
          tactics. [Citation.] [¶] Our Supreme Court recently reiterated the
          obligations of appellate courts in reviewing claims of ineffective
          assistance of counsel: ' " 'Reviewing courts defer to counsel's
          reasonable tactical decisions in examining a claim of ineffective
          assistance of counsel [citation], and there is a "strong presumption
          that counsel's conduct falls within the wide range of professional
          assistance." ' [Citation.] '[W]e accord great deference to counsel's
          tactical decisions' [citation], and we have explained that 'courts
          should not second-guess reasonable, if difficult, tactical decisions in
          the harsh light of hindsight' [citation]. 'Tactical errors are generally
          not deemed reversible, and counsel's decisionmaking must be
          evaluated in the context of the available facts.' [Citation.]" '
          [Citation.]

          " 'Competent counsel is not required to make all conceivable
          motions or to leave an exhaustive paper trail for the sake of the
          record. Rather, competent counsel should realistically examine the
          case, the evidence, and the issues, and pursue those avenues of
          defense that, to their best and reasonable professional judgment,
          seem appropriate under the circumstances. [Citation.]' [Citation.]"
          (Montoya, supra, 149 Cal.App.4th at pp. 1147-1148.)



                                             12
       Anguiano cannot establish that his original trial counsel rendered ineffective

assistance in failing to move to suppress the gunshot residue because, as the trial court

determined, any such motion would have been futile.

       Anguiano's argument is that officers did not have reasonable suspicion to seize

him after they saw him and he ran. Therefore, he asserts, anything that officers found

after this initial unlawful seizure of his person should have been excluded.10 Anguiano's

assertion that the officers did not have reasonable suspicion to seize him at the time they

did is incorrect. When Anguiano saw the officers, he did not simply stand there and go

about his business. Instead, he ran away from them. His unprovoked flight gave the

officers reasonable suspicion to stop him. "[W]hen an officer, without reasonable

suspicion or probable cause, approaches an individual, the individual has a right to ignore

the police and go about his business. [Citation.] And any 'refusal to cooperate, without

more, does not furnish the minimal level of objective justification needed for a detention

or seizure.' [Citation.] [¶] But unprovoked flight is simply not a mere refusal to

cooperate. Flight, by its very nature, is not 'going about one's business'; in fact, it is just

the opposite. Allowing officers confronted with such flight to stop the fugitive and

investigate further is quite consistent with the individual's right to go about his business

or stay put and remain silent in the face of police questioning." (Illinois v. Wardlow

(2000) 528 U.S. 119, 125.)




10     Anguiano does not argue that there was no probable cause for his arrest. We
therefore need not address that issue.
                                               13
       There was thus no basis to suppress the gunshot residue evidence on the ground

that officers did not have reasonable suspicion to stop Anguiano when they seized him on

January 12, 2005. Consequently, any motion to suppress the evidence on this ground

would have been denied, and Anguiano's counsel could not have been ineffective in not

making a futile motion. We therefore reject Anguiano's contention that the trial court

erred in not granting his motion for a new trial on the ground that his original trial

attorney failed to move to suppress the gunshot residue evidence, and affirm Anguiano's

conviction on count 1 for possession of a firearm by a felon.

                                             IV.

                                       DISPOSITION

       We reverse Anguiano's conviction on count 6. The matter is remanded to the trial

court for resentencing on the remaining counts.



                                                                                  AARON, J.

WE CONCUR:



            HALLER, Acting P. J.



                          IRION, J.




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