Filed 3/21/14 P. v. Parks CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065605
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF138883B)
                   v.

CHRIST EDWARD PARKS,                                                                     OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. William D.
Palmer, Judge.
         Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry
Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       A jury convicted appellant Christ Edward Parks of violating Penal Code section
186.22, subdivision (a), active participation in a criminal street gang, but the jury could
not reach a decision on the substantive offense with which Parks was charged. His
codefendant, Lazaroy Miller, was not convicted on any charge. People v. Rodriguez
(2012) 55 Cal.4th 1125 (Rodriguez) held that section 186.22, subdivision (a) requires
“that a person commit an underlying felony with at least one other gang member.”
(Rodriguez, at p. 1134 (lead opn. of Corrigan, J.).) Applying Rodriguez, we will reverse
Parks’s conviction on the basis of insufficient evidence.
                    FACTUAL AND PROCEDURAL SUMMARY
       On October 10, 2011, Parks and Miller were standing by the entrance of the
D & A Market engaged in conversation. The police considered the market to be a
location for drug sales. Bakersfield Police Officers Matthew Gregory and Isaac Aleman
rolled into the parking lot and shined the patrol car’s spotlight on the entrance. Parks and
Miller quickly dispersed into the market.
       Gregory and Aleman entered the market and found both Parks and Miller
crouched down behind some shelves, attempting to hide. Both were detained. Trent
Abraham, a known member of the street gang Country Boy Crips, also was in the market.
       The officers noticed Parks walking in an unusual manner as he was being escorted
to the patrol car. They soon determined that he had seven “rocks” of cocaine base
concealed in a plastic bag in his buttocks area. Parks also had $16 in cash and a cell
phone. Miller was searched and police found $66 and two cell phones.
       When questioned about the bag of cocaine base found on him, Parks claimed he
had found it on the ground and hid it on his person. He denied that Miller gave him the
baggie. Miller told police that he had walked to the market to buy some beverages, but
he had no beverages in his possession when he was detained.




                                             2.
       The Charges
       Parks and Miller were charged with possession of cocaine base for sale (count 1)
and with active participation in a criminal street gang (count 3). Miller was solely
charged with transportation or furnishing of a controlled substance (count 2).
       The Trial
       Gregory testified as an expert in possession of narcotics for sale. His expertise
included the “team sales” approach, where gang members divide the money and narcotics
to make prosecution more difficult. Gregory opined that Parks possessed the narcotics
for sale. Gregory based this opinion on Parks having seven rocks of cocaine, each
separately wrapped; he had a cell phone and some cash; and he was loitering in an area
known for narcotics sales.
       Robert Woods, an officer with the Bakersfield Police Department, testified as an
expert on street gangs. Country Boy Crips is a gang in Bakersfield whose primary
activities include narcotics violations, narcotics trafficking, weapons violations,
possessing weapons, robberies, burglaries, witness intimidation, homicide, aggravated
assaults, and shootings. Woods based this opinion on numerous crimes committed by
Country Boy Crips members since 2009, including a prior conviction of Miller’s for
possession of ecstasy for sale.
       Woods opined that both Parks and Miller were members of the Country Boy Crips
gang. He claimed both had admitted gang membership in the past. Both Miller and
Parks had been contacted by police numerous times in known gang territory with known
gang members. The D & A Market is in Country Boy Crips gang territory; it is a known
site of narcotics sales by the gang’s members; and only gang members are allowed to sell
narcotics at that location.
       Miller testified he was not a member of the Country Boy Crips. On the night of
October 10, 2011, Miller was at a family gathering near the D & A Market and went to
the market to buy beer. Miller had placed some beer on the counter for purchase when he

                                             3.
spotted a friend and went over to talk. Police came into the store and told Miller to “get
the fuck on the ground.” Miller was then taken outside and arrested.
        Harlan Hunter, a private investigator, testified on behalf of Parks as a gang expert.
In his opinion, Parks was not a member of the Country Boy Crips on October 10, 2011.
Hunter based this opinion on several factors, including (1) a 2006 court order adjudging
Parks to be “mentally retarded”; (2) Parks’s address in a rival gang’s territory; (3) a letter
from Parks’s special education teacher indicating Parks functioned at an elementary
school level; (4) the absence of gang tattoos; (5) the lack of information about Parks
being recruited into a particular subset of Country Boy Crips because all Country Boy
Crips members had to be part of a particular subset; and (6) the lack of any evidence
Parks associated with gang members in the sense of planning or facilitating any crimes.
        The trial court instructed the jury with CALCRIM No. 1400, which instructs on
section 186.22, subdivision (a). During deliberations, the jury sent a note to the trial
court asking questions about the count 3 offense of active participation in a criminal
street gang. One of the questions the jury asked was whether a guilty verdict on the count
3 offense could be returned if there was no guilty verdict on counts 1 or 2. The jury also
asked for the trial court to clarify further what “participating in a criminal street gang”
meant and whether one could “participate in a gang without personally commit[t]ing a
crime.” The trial court responded by referring the jury to CALCRIM No. 1400.
        Eventually, the jury acquitted Miller of the count 2 offense. The jury could not
reach a verdict on the remaining counts against Miller and the charges were dismissed on
the motion of the prosecution. As to Parks, the jury could not reach a verdict on the
count 1 offense and the trial court declared a mistrial. On June 22, 2012, on the
prosecution’s motion, the count 1 charge was dismissed. The only guilty verdict returned
by the jury was as to Parks on the count 3 offense, active participation in a criminal street
gang.



                                              4.
          The Judgment
          The trial court sentenced Parks to a term of two years in state prison, and he was
given 441 days of presentence credits.
          The Death of Appellant
          During the pendency of this appeal, this court was notified of the death of
appellant. Pursuant to California Rules of Court, rule 8.244, it is discretionary with this
court as to whether the appeal will be dismissed. In the interests of justice, we decline to
dismiss the appeal and instead render an opinion on the merits. (In re Sodersten (2007)
146 Cal.App.4th 1163, 1170-1171.)
                                          DISCUSSION
          In his opening brief on appeal, Parks asserts that CALCRIM No. 1400 misstates
the law and it was prejudicial error to instruct with CALCRIM No. 1400.
          By letter dated February 6, 2014, this court requested the parties file a letter brief
addressing the issue of whether, in light of Rodriguez, supra, 55 Cal.4th 1125, there was
sufficient evidence to sustain the count 3 verdict against Parks. Both parties filed letter
briefs.
          In his letter brief, Parks contends the evidence was insufficient to support his
conviction for violating section 186.22, subdivision (a); the People contend that the
conviction can be upheld, despite the lack of any underlying conviction and the lack of
evidence that Parks acted in conjunction with any other member of the gang. We agree
with Parks and conclude the evidence was insufficient. There is no credible evidence
that Parks committed, or aided and abetted, an underlying felony with at least one other
gang member as required for a conviction. (Rodriguez, supra, 55 Cal.4th at p. 1134.)
          Gang Offense
          Section 186.22, subdivision (a) provides, in part:

          “Any person who actively participates in any criminal street gang with knowledge



                                                 5.
       that its members engage in or have engaged in a pattern of criminal gang activity,
       and who willfully promotes, furthers, or assists in any felonious criminal conduct
       by members of that gang, shall be punished .…”
       The trial court instructed the jury with CALCRIM No. 1400, which instructs on
section 186.22, subdivision (a). As given to the jury, the instruction listed the primary
activities of the criminal street gang as “possession for sale or sale or transportation of
cocaine base.” The instruction informed the jury that in order to decide whether “a
member of the gang or the defendant committed possession for sale, sale, transportation
or furnishing cocaine base” they were to look to other separate instructions. Felonious
criminal conduct was defined as “possession, possession for sale, [and] sale or
transportation of cocaine base.” The jury was instructed that Parks and Miller were
charged with a violation of section 186.22, subdivision (a) in count 3 and:

       “To prove that the defendants are guilty of this crime, the People must
prove that:

              “1. The defendants actively participated in a criminal street gang;

             “2. When the defendants participated in the gang, [they] knew that
       members of the gang engage in or have engaged in a pattern of criminal
       gang activity;

              AND

              “3. The defendants willfully assisted, furthered, or promoted
       felonious criminal conduct by members of the gang either by:

                     “a. directly and actively committing a felony offense;

              OR

                     “b. aiding and abetting a felony offense.

      “Active participation means involvement with a criminal street gang in a
way that is more than passive or in name only.”
       Here, as discussed below, the record fails to disclose any evidence that Parks
(1) committed an underlying felony or (2) acted in concert with other gang members.



                                              6.
       Standard of Review
       The test of sufficiency of the evidence under the due process clause of the
Fourteenth Amendment to the United States Constitution is whether, reviewing the whole
record in the light most favorable to the judgment below, substantial evidence was
disclosed such that a reasonable trier of fact could find the essential elements of the crime
beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord,
Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence
which is “reasonable, credible, and of solid value.” (Johnson, at p. 578.) An appellate
court must “presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence. [Citations.]” (People v. Reilly (1970) 3 Cal.3d
421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10
Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts,
as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96
Cal.App.3d 353, 367). “Where the circumstances support the trier of fact’s finding of
guilt, an appellate court cannot reverse merely because it believes the evidence is
reasonably reconciled with the defendant’s innocence. [Citations.]” (People v. Meza
(1995) 38 Cal.App.4th 1741, 1747.) This standard of review is applicable regardless of
whether the prosecution relies primarily on direct or on circumstantial evidence. (People
v. Lenart (2004) 32 Cal.4th 1107, 1125.)
       Insufficient Evidence
       “The elements of the gang participation offense in section 186.22(a) are: First,
active participation in a criminal street gang, in the sense of participation that is more
than nominal or passive; second, knowledge that the gang’s members engage in or have
engaged in a pattern of criminal gang activity; and third, the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.”
[Citation.] (Rodriguez, supra, 55 Cal.4th at p. 1130.)



                                              7.
        Parks contends, as a matter of law, that an individual acting alone cannot be guilty
of the substantive offense of active participation in a criminal street gang. In Rodriguez,
supra, 55 Cal.4th 1125, the California Supreme Court agreed with the position advocated
by Parks -- that a gang member who commits a felony, but acts alone, does not violate
section 186.22, subdivision (a). Looking to the plain language and grammatical structure
of the statute, the court reasoned: “Section 186.22(a) speaks of ‘criminal conduct by
members of that gang.’ (Italics added.) ‘[M]embers’ is a plural noun. The words
‘promotes, furthers, or assists’ are the verbs describing the defendant’s acts, which must
be performed willfully. The phrase ‘any felonious criminal conduct’ is the direct object
of these verbs. The prepositional phrase ‘by members of that gang’ indicates who
performs the felonious criminal conduct. Therefore, to satisfy the third element [of the
offense], a defendant must willfully advance, encourage, contribute to, or help members
of his gang commit felonious criminal conduct. The plain meaning of section 186.22(a)
requires that 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, at
p. 1132 (lead opn. of Corrigan, J.); accord, id. at pp. 1139-1140 (conc. opn. of Baxter,
J.).)
        Here, there was no substantial evidence Parks was acting in cooperation with
anyone. Although there was some suggestion at trial that Parks and Miller were working
together in a team-sales fashion, the jury was not convinced. The jury acquitted Miller
on count 2 and was unable to reach a verdict on count 1 as to either Miller or Parks. The
People acknowledge in their letter brief that “there was no evidence to suggest that on
October 10, 2011 [Parks] and Miller were working as a team to sell cocaine base.”
Accordingly, we can only speculate Parks and Miller aided and abetted each other or
were coparticipants acting in concert. Speculation is not evidence, much less substantial
evidence. (People v. Waidla (2000) 22 Cal.4th 690, 735 (Waidla).)



                                             8.
       Despite their admission that there was no evidence Parks and Miller acted
together, the People argue that the evidence shows Parks possessed cocaine base, that
such possession willfully promoted, furthered, or assisted the Country Boy Crips gang,
and that lack of a conviction on any underlying offense is “immaterial.”
       Even if we were to accept that no underlying conviction was necessary and that
the evidence established possession of cocaine base by Parks, the People’s position
totally thwarts the holding of Rodriguez. Rodriguez is abundantly clear that in order to
“avoid punishing mere gang membership,” section 186.22, subdivision (a) requires that
“a person commit an underlying felony with at least one other gang member.” (People v.
Rodriguez, supra, 55 Cal.4th at p. 1134.) As the People have acknowledged, there is no
evidence Parks committed any offense with another gang member.
       In addition, there was no underlying felony supporting the section 186.22,
subdivision (a) offense. The jury did not return a verdict of guilty as to either Parks or
Miller on either of the charged underlying offenses. Consequently, there is only
speculation that Parks engaged in the willful promotion, furtherance, or assistance in any
felonious criminal conduct by members of that gang and speculation will not suffice.
(Rodriguez, supra, 55 Cal.4th at p. 1130; Waidla, supra, 22 Cal.4th at p. 735.)
       Moreover, assuming substantial evidence would support a conviction for a
possession of cocaine base offense, possessory offenses are committed and completed by
an individual alone. Consequently, the requirements for a section 186.22, subdivision (a)
offense as set forth in Rodriguez, namely, that the offense be committed with another
gang member, would not be met.
       For these reasons, Parks’s conviction on count 3 must be reversed.
       CALCRIM No. 1400
       Parks contends that his conviction on count 3 must be reversed because the trial
court misinstructed the jury on the elements of street terrorism, also known as active gang
participation, as defined in section 186.22, subdivision (a). Because we reverse the

                                             9.
section 186.22, subdivision (a) conviction on the basis of insufficient evidence, we need
not address Parks’s claim that CALCRIM No. 1400 misstates the law.
                                     DISPOSITION
      The judgment is reversed.

                                                                _____________________
                                                                  CORNELL, Acting P.J.


WE CONCUR:


 _____________________
GOMES, J.


 _____________________
PEÑA, J.




                                           10.
