Filed 12/29/15 P. v. Driver CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059681

v.                                                                       (Super.Ct.No. FSB1201484)

TOMMY JUNIOR DRIVER II                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,

Judge. Affirmed.

         Helen S. Irza, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and

Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.

         A jury convicted defendant Tommy Junior Driver II of possessing cocaine base for

sale (Health & Saf. Code, § 11351.5) and found that the offense had been committed for
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the benefit of a criminal street gang (Pen. Code,1 § 186.22, subd. (b)(1)). The jury

acquitted defendant of a separate count of the substantive offense of gang participation

(§ 186.22, subd. (a)), a crime sometimes also called “street terrorism.” (E.g., People v.

Williams (2009) 170 Cal.App.4th 587, 625-626 [Fourth Dist., Div. Two].) The trial court

subsequently found true a prior strike conviction allegation (§ 667, subds. (b)-(i);

§ 1170.12, subds. (a)-(d)) and denied a defense request to strike that strike. Defendant

received an aggregate sentence of 13 years in prison.

       Defendant raises two claims of error on appeal.2 First, he argues that the evidence

was insufficient to support the gang enhancement. Second, he argues that the evidence

was insufficient to establish that his prior conviction was a serious or violent felony

within the meaning of the Three Strikes Law, so as to qualify as a prior strike. We affirm

the judgment in all respects.

                    I. FACTS AND PROCEDURAL BACKGROUND3

       Defendant was arrested on April 6, 2012, after a police officer discovered rock

cocaine packaged for sale in a foam cup that defendant had been holding. Plaintiff was

wearing a red belt and a baseball cap with a large letter “P” embroidered on it, clothing

       1   Further undesignated statutory references are to the Penal Code.

       2 Also pending before the court is defendant’s petition for writ of habeas corpus
(case No. E063472). We will rule on that petition by separate order.

       3  An exhaustive factual and procedural history is unnecessary to the disposition of
this appeal. We therefore limit our discussion in this section to a summary of matters
directly relevant to defendants’ contentions on appeal, or helpful as context. Additional
factual and procedural details will be discussed in later sections as necessary to address
defendant’s claims of error.

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which a police gang expert later testified at trial was indicative of gang membership,

specifically, the “Projects” gang. The arresting officers testified at trial that while

defendant was being detained, he repeatedly yelled “the Projects got this,” or obscene

variants of that phrase. An arresting officer testified that when he asked defendant

whether he belonged to a criminal street gang, defendant responded that he was a

member of the Projects gang. Once defendant was transported to jail, in response to a

classification deputy’s questioning, defendant stated that he was a member of the “West

Side Project Crips,” and that he was “Projects until he dies,” though he was “too old to

gang bang, no longer doing gang stuff.” Defendant had previously claimed to be a

Projects gang member in jail classification interviews in May 2011, October 2011, and

April 2012. He also had admitted Projects gang membership in previous documented

contacts with police in November 2006, January 2007, April 2011, and May 2011.

       The testifying police gang expert opined that defendant had been arrested in

“neutral” territory, not within the territory of the Projects gang. The expert explained, in

response to questions based on hypothetical circumstances that mirrored those of this

case, that by committing crimes and shouting out their gang’s name, gang members “try

to intimidate not only the neighborhoods they are in, but the other gang members,” and it

benefits a criminal street gang when it is feared. By shouting out the gang’s name in

neutral territory, in particular, gang members indicate that “this is the gang and this is

where they are from, and they are taking over this particular area.” By doing so in front

of police officers, the gang members show other gang members or rivals that they are

“not afraid of law enforcement or their status within the gang.” Once established in a

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neighborhood, the gang benefits from citizens being too afraid to report criminal activity

by the gang itself. Also, the gang may be able to force others engaging in criminal

activity in the area “to pay a tax in order to stay in their neighborhood.”

         At trial, defendant testified in his own defense. He admitted previously being an

“associate” of the Projects gang—meaning that he “hang[s] out” with gang members—

though he denied being a member himself, and denied committing crimes for the gang.

He claimed that he had been holding the drugs for a friend, known as “Kool-Aid”—a

gang member, but not a member of the Projects gang—who was in the area at the time of

the arrest. Defendant testified that he had shouted out “I got you.” and “I’m Projects” to

tell Kool-Aid that, as a person who grew up in San Bernardino low-income housing

(known as “the Projects”), he would comply with the code of “the streets” not to “snitch”

to the police. He claimed to have been wearing the baseball cap with the letter “P” on it

because he likes the baseball team the Philadelphia Phillies, and he likes the color red,

though he acknowledged that clothing could identify him as a Projects gang member. He

stated that he claimed to be a Projects gang member in jail classification interviews to “be

housed with people that [he] knew.”

         Defendant also testified about his prior convictions, including a prior conviction

for grossly negligent discharge of a firearm (§ 246.3.). The following colloquy, relevant

to the present appeal, took place on direct examination by defense counsel:

         “Q You have a conviction, I believe, for negligent discharge of a firearm; is that

right?

         “A Yes.

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       “Q Shot the gun up in the air?

       “A Yes.

       “Q Had a bit too much to drink?

       “A Yes.”

                                     II. DISCUSSION

A. Standard of Review.

       When a criminal defendant contends the evidence was insufficient to support his

conviction, “‘we review the whole record in the light most favorable to the judgment to

determine whether it discloses substantial evidence—that is, evidence that is reasonable,

credible, and of solid value—from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt. [Citations.]’ . . . The conviction shall stand

‘unless it appears “that upon no hypothesis whatever is there sufficient substantial

evidence to support [the conviction].”’” (People v. Cravens (2012) 53 Cal.4th 500, 507-

508.) The standard of review for a challenge to the sufficiency of the evidence to support

an enhancement is the same as that for substantive crimes. (See People v. Albillar (2010)

51 Cal.4th 47, 59-60.)

B. Analysis.

       1. The Jury’s True Finding on the Gang Enhancement Is Supported By

Substantial Evidence.

       Defendant contends that the record lacks substantial evidence in support of the

jury’s true finding with respect to the gang enhancement. We disagree.



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       Section 186.22, subdivision (b)(1) enhances the punishment for 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 . . . .” (§ 186.22, subd. (b)(1).) “[T]he gang enhancement under

section 186.22[, subdivision] (b)(1) requires both that the felony be gang related and that

the defendant act with a specific intent to promote, further, or assist the gang . . . .”

(People v. Rodriguez (2012) 55 Cal.4th 1125, 1139.) Expert testimony alone is

insufficient to find a drug offense is gang related. (People v. Ferraez (2003) 112

Cal.App.4th 925, 931 (Ferraez).) Rather, “the record must provide some evidentiary

support, other than merely the defendant’s record of prior offenses and past gang

activities or personal affiliations . . . .” (People v. Martinez (2004) 116 Cal.App.4th 753,

762 (Martinez).) Nevertheless, expert testimony is appropriate to provide the jury with

information regarding “gang sociology and psychology,” including “‘whether and how a

crime was committed to benefit or promote a gang.’” (People v. Gonzalez (2005) 126

Cal.App.4th 1539, 1550 (Gonzalez).)

       Viewed in the light most favorable to the judgment, the evidence supporting the

jury’s conclusion that defendant possessed drugs for the benefit of4 the Projects gang, and

that he acted with the requisite specific intent to promote, further, or assist the gang, goes

well beyond his “record of prior offenses and past gang activities or personal

affiliations.” (Martinez, supra, 116 Cal.App.4th at p. 762.) It is also not limited to the

       4 There was no evidence that defendant acted “at the direction of” or directly “in
association with” the gang. (§ 186.22, subd. (b)(1).)

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expert testimony of the testifying police gang expert. (See Ferraez, supra, 112

Cal.App.4th at p. 931.) As discussed in Part I, ante, defendant was arrested wearing gang

attire, and as he was being arrested he made statements reasonably understood to

announce gang affiliation; these facts are at least circumstantial evidence that his

activities immediately prior to his arrest were committed with the requisite specific

intent. (See People v. Rios (2013) 222 Cal.App.4th 542, 574 [gang clothing, calling out a

gang name or otherwise stating gang affiliation, among other things, is evidence

supporting inference of specific intent for gang enhancement].) Police expert testimony

appropriately provided the jury with information about how defendant’s criminal activity,

though undertaken in “neutral” territory, could work for the benefit of the Projects gang.

(Gonzalez, supra, 126 Cal.App.4th at p. 1550.) As such, substantial evidence supported

the jury’s verdict on the gang enhancement.

       Defendant’s arguments to the contrary falter on the requirement that the evidence

be viewed in the light most favorable to the judgment. Even if the evidence might also

have supported a different conclusion—the jury could have chosen to believe defendant’s

trial testimony providing an alternative, somewhat less culpable characterization of his

actions, or could have chosen to draw more innocent conclusions from circumstantial

evidence—the evidence adduced at trial was more than adequate to support the jury’s

verdict under the applicable, deferential standard of review.




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       2. Substantial Evidence Supports the Trial Court’s Finding that Defendant’s

Prior Conviction Qualifies as a Strike.

       Defendant contends that the evidence before the trial court was insufficient to

support its finding that his prior conviction for negligently discharging a firearm

(§ 246.3) qualified as a prior strike conviction. Again, we disagree.

       A violation of section 246.3 qualifies as a prior serious felony, and thus a strike,

where the defendant personally used a firearm. (§ 1192.7, subd. (c)(8) [defining prior

“serious felony” to include “any felony in which the defendant personally uses a firearm”

to commit the offense].) It is possible, however, to be convicted of violating section

246.3 “without personally using a firearm, e.g., as an aider and abettor.” (People v.

Golde (2008) 163 Cal.App.4th 101, 112.) The prosecution bore the burden of

establishing beyond a reasonable doubt not only that defendant was convicted under

section 246.3, but also that his conviction was based on personal use of a firearm, for that

conviction to count as a serious felony and therefore a strike. In determining whether the

prosecution has met this burden, “‘the nature of the conviction is at issue.’” (People v.

McGee (2006) 38 Cal.4th 682, 691.)

       Here, defendant testified in his own defense, and was questioned on direct

examination regarding his prior convictions, including his conviction under section

246.3. In relation to that conviction, defendant’s attorney asked him whether he had

“[s]hot the gun up in the air”; defendant responded “Yes.” The trial court reasonably

found that this admission constituted proof beyond a reasonable doubt that defendant’s



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section 246.3 conviction involved defendant personally using a firearm to commit the

offense, by “shooting [a gun] off into the air.”

       Relying primarily on People v. Trujillo (2006) 40 Cal.4th 165 (Trujillo), defendant

argues that the trial court was prohibited from considering the admission defendant made

while testifying in the current case. In Trujillo, the defendant in a prior proceeding had

pleaded guilty to inflicting corporal injury in violation of section 273.5, crime that was

not a serious or violent felony. (Trujillo, supra, at pp. 170-171.) In a postplea probation

interview, defendant admitted that he had used a knife to stab the victim, a fact that

would elevate the underlying crime to a serious or violent felony. (Id. at p. 173.) But the

Supreme Court concluded that the defendant’s statements did not describe “the nature of

the crime of which he was convicted” because, under the terms of the defendant’s plea

bargain, the prosecution had “dismissed the allegation that defendant used a deadly or

dangerous weapon and committed an assault with a deadly weapon.” (Id. at p. 179.)

Under those circumstances, permitting the defendant’s statements to be used against him

to establish the nature of the conviction would “creat[e] harm akin to double jeopardy and

forc[e] the defendant to relitigate the circumstances of the crime.” (Id. at p. 180.)

       The facts of Trujillo, however, are distinguishable from the present case. The

sworn testimony of defendant in the present case does indeed reflect the facts of the

offense for which he was convicted. While the present testimony was not part of the

prior proceeding, it nonetheless precisely reflects his prior conviction.

       Moreover, Trujillo referenced with approval People v. Reed (1996) 13 Cal.4th 217

(Reed), in which the Supreme Court determined that a reporter’s transcript of a

                                              9
preliminary hearing may be relied upon in determining the nature of the defendant’s prior

conviction for enhancement purposes. (Trujillo, supra, 40 Cal.4th at p. 177.) In Reed,

the Supreme Court recognized that the term “record of conviction” could be “used

technically, as equivalent to the record on appeal [citation], or more narrowly, as

referring only to those record documents reliably reflecting the facts of the offense for

which the defendant was convicted.” (Reed, supra, at p. 223.) The reporter’s transcript

of a preliminary hearing was found to fall “within even the narrower definition because

the procedural protections afforded the defendant during a preliminary hearing tend to

ensure the reliability of such evidence.” (Ibid.) The same reasoning applies to a

defendant’s testimony at trial. Indeed, defendant here not only was represented by

counsel, but testified on direct examination conducted by defense counsel regarding the

facts underlying his conviction for negligent discharge of a firearm.

       Similarly, in People v. Elmore (1990), 225 Cal.App.3d 953, the Court of Appeal

found that a trial court could properly consider the testimony of the defendant elicited on

direct examination during trial of the underlying charges for purposes of determining

whether the prosecution had met its burden in a subsequent trial regarding enhancement

allegations: “To preclude the court from considering evidence properly before it during

another part of the trial would be unnecessarily rigid and would hamper, rather than

further, the interests of justice.” (Id. at p. 957.) Although Elmore involved a prison prior

enhancement, not a strike enhancement, the reasoning is equally applicable here.




                                             10
       In short, we find no error in the trial court’s consideration of defendant’s trial

testimony in determining whether his prior conviction should be treated as a strike.5

                                       III. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 HOLLENHORST
                                                                          Acting P. J.
I concur:

       MCKINSTER
                                  J.




       5  In light of this conclusion, we need not address the parties’ arguments regarding
the documentary evidence of defendant’s prior conviction or defense counsel’s admission
that the prior conviction counted as a strike, albeit “barely.”

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[People v. Driver, E059681]

       King, J., Dissenting.

       I agree that substantial evidence supports the jury’s true finding as to the gang

enhancement.

       I disagree however, that the trial court could properly use defendant’s testimony

that “he shot a gun up in the air,” for purposes of finding that defendant’s prior

conviction for negligent discharge of a firearm constituted a serious felony. Defendant’s

testimony was outside the record of conviction and thus could not be used to determine

that he personally used a firearm. (People v. Trujillo (2006) 40 Cal.4th 165, 179-180.)

       The majority opinion runs counter to over 30 years of California Supreme Court

jurisprudence on this issue. Beginning with People v. Crowson (1983) 33 Cal.3d 623 and

extending through Trujillo, the Supreme Court has consistently held that proof as to

whether a prior crime is a serious felony for purposes of enhanced sentencing is restricted

to the record of the prior conviction. While “the record of conviction” has gradually

expanded from documents reflecting the least essential elements of the prior crime,

“those issues actually and necessarily litigated in the prior proceeding” (People v.

Crowson, supra, at p. 634), to an inclusion of the preliminary hearing transcript in the

prior proceeding (People v. Reed (1996) 13 Cal.4th 217), the Supreme Court has

steadfastly held to the notion that only documents generated in the prior proceeding and

reflecting the facts of the underlying crime of which defendant was convicted may be

used in determining whether the prior crime constituted a serious felony. In discussing


                                              1
People v. Guerrero (1988) 44 Cal.3d 343, the court in Trujillo stated: “In holding that

the trial court ‘acted properly’ in reviewing the accusatory pleading to determine that the

burglary of which the defendant was convicted was a residential burglary and thus a

serious felony, we held that in determining the truth of a prior conviction allegation, the

trier of fact may ‘look beyond the judgment to the entire record of the conviction’

[citation] ‘but no further’ [citation].” (People v. Trujillo, supra, 40 Cal.4th at p. 177.)

        Restriction to the record of the prior conviction is well grounded. As explained in

People v. Alfaro (1986) 42 Cal.3d 627:1 “The virtue of this analysis is that proof of the

prior conviction is limited to matters which fall within the doctrine of collateral estoppel

and thus cannot be controverted. Proof is simple and conclusive. The contrary view . . .

that the [prior serious felony] is conduct which can be proved like any other controverted

question of fact—creates obvious difficulties. The prosecution could then introduce

documentary and testimonial evidence to show that the prior [crime was a serious

felony]; defendant could introduce contrary evidence or argue that the prosecution’s

evidence does not prove the point beyond a reasonable doubt. The net result would

resemble retrial of the original burglary charge.” (People v. Alfaro, supra, at pp. 634-

635.)

        1 As explained in Trujillo: “The holding in Alfaro that in determining the truth of
an allegation that a defendant had been convicted of a serious felony the trier of fact ‘was
limited to matters necessarily established by the prior conviction’ was short lived.
[Citation.] We reconsidered the issue little more that a year later in People v. Guerrero[,
supra,] 44 Cal.3d 343 . . . , overruled our holding in Alfaro, and held instead that ‘the
trier of fact may look to the entire record of the conviction.’ [Citation.]” (People v.
Trujillo, supra, 40 Cal.4th at pp. 176-177.)

                                               2
       The majority’s expansion of what may be used to prove that the prior crime was a

serious felony totally destroys the finality of the prior adjudication and allows proof well

“beyond the record of conviction.” Under our facts, what the majority wishes to consider

in establishing that defendant personally used a firearm appears very straightforward and

simple. But, as Lee Corso says on Gameday, “[n]ot so fast.”

       The majority opinion allows a relitigation of whether the prior crime was a serious

felony. Under its rationale, the majority would allow a third party to testify at the present

proceeding that sometime in the past he or she heard the defendant say that he “shot the

gun into the air.” Under the majority’s rationale, if there was some ambiguity in the

record of conviction, both the prosecution and the defense could call witnesses for

purposes of establishing or rebutting that the prior crime was a serious felony. The

majority’s holding simply wipes out the finality of the prior proceeding and well-

established law that in determining whether a prior conviction was for a serious felony,

the courts may look no further than the prior record of conviction.


                                                                KING
                                                                                           J.




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