Filed 1/9/15 P. v. Aguilar 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060129

v.                                                                       (Super.Ct.No. FVI1102581)

CARLOS ANTONIO AGUILAR,                                                  OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed in part, reversed in part.

         Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

William M. Wood and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and

Respondent.




                                                             1
       Defendant Carlos Aguilar is serving 18 years and 8 months in prison for an

incident in which he took a man’s car at gunpoint. In this appeal, defendant argues, the

People concede, and this court agrees, that his conviction for participation in a criminal

street gang is supported by insufficient evidence because the People did not establish that

he committed the assault in conjunction with another gang member. Specifically, the

People did not prove that the other person present during the crimes was a member of

defendant’s gang. For this reason, we reverse the conviction for participation in a

criminal street gang.

                                 FACTS AND PROCEDURE

       On October 30, 2011, defendant was a passenger in a car driven by Danielle Boyd.

Boyd had borrowed the car the previous day from her long-time friend, the victim Joseph

Bane, but had not returned it as promised. Boyd had also failed to answer Bane’s

telephone calls and texts.

       Boyd and defendant drove up to Bane while he was at a friend’s house. Bane

demanded the keys and Boyd returned them. At some point during this conversation,

Boyd asked if Bane would give her and defendant a ride to Oro Grande. Bane agreed

reluctantly. He did not want to give them a ride, but he did not want to leave them

stranded. Bane drove the car while defendant remained in the front passenger seat and

Boyd sat in the back.

       Bane stopped the car at a market at Boyd’s request. Defendant and Boyd went

into the market. When they came out, they asked if Bane could give a ride to a man later



                                             2
identified as Raymond Smalley. Again, Bane agreed. Smalley got into the back seat

with Boyd.

       When they arrived at Smalley’s home, Bane turned off the ignition and Smalley

got out of the car and went inside his home. Smalley testified that at this time he noticed

a gun in defendant’s hand, but did not say anything about it. After Smalley went inside

his home, Boyd reached forward and tried to take the car keys from Bane. As the two

struggled over the keys, defendant hit Bane in the temple three times with his .38-caliber

revolver, causing Bane to bleed, and then hit him with the gun twice again in the face.

       Defendant told Bane to get out of the car and to give defendant his cell phone.

When Bane told defendant he had left his phone in the car, defendant became very angry

and punched Bane in the face four times. Defendant twice put his gun inside Bane’s

mouth and then jabbed it into Bane’s nose. Bane told defendant to just kill him. At that

point, defendant and Boyd got back into the car, with Boyd driving, and drove away.

After watching the car drive off, Bane ran away. A few seconds later, Bane heard a

gunshot. He did not know if the bullet was meant for him.

       Police found Bane’s car four days later abandoned in a dry riverbed near Oro

Grande, wiped clean of fingerprints, and with two sets of footprints leading away from

the car.




                                             3
       At some point, Boyd pled guilty to attempting to unlawfully drive or take a vehicle

(Pen. Code, § 664; Veh. Code, § 10851) with a gang enhancement (§ 186.22, subd.

(b)(1))1.

       On March 4, 2013, the People filed a second amended information charging

defendant with carjacking (count one—§ 215, subd. (a)), assault with a firearm (count

two—§ 245, subd. (a)(2)), participation in a criminal street gang (count three—§ 186.22,

subd. (a)), and firearm possession by a felon (count four—§ 29800, subd. (a)).2 The

People further alleged that defendant personally and intentionally discharged a firearm

when committing count one (§ 12022.53, subds. (b) and (c)), personally used a firearm

when committing count two (§ 12022.5, subd. (a)), and committed counts one, two and

four for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The People also

alleged defendant had four prior prison term convictions (§ 667.5, subd. (b)).

       The jury heard testimony that, while incarcerated in 2006, defendant claimed to be

a former member of the Oro Grande gang, but did not request protective custody. The

lack of such a request would be unusual, because former gang members would be

targeted while in custody. The jury also heard testimony that, while incarcerated in 2009,

defendant claimed to be a current member of the Oro Grande gang. At the time of trial,


       1  Section 186.22, subdivision (b)(1), requires that a defendant commit a felony
“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 . . .”

       2    All section references are to the Penal Code unless otherwise indicated.


                                               4
defendant had a tattoo of the word “Oro” on his body. A gang expert testified that it was

his opinion that defendant was presently an active member of the Oro Grande gang.

       On March 7, 2013, the jury acquitted defendant of the carjacking, but convicted

him of counts two, three and four, and found true only the personal use of a firearm

enhancement regarding count two.

       On June 12, 2013, defendant filed a motion for new trial. Defendant argued: (1)

the jury should have been instructed, pursuant to People v. Rodriguez (2012) 55 Cal.4th

1125 (Rodriguez), that a gang member cannot be convicted of participation in a criminal

street gang unless he acts in concert with another gang member; and (2) the People

presented no evidence to show that Boyd was a member of the Oro Grande gang. The

People opposed the motion and the trial court denied it on October 4, 2013, telling

defense counsel, “I appreciate your position and I think that your well-reasoned argument

is just not supported by the prevailing legislation and the case law.”

       On November 22, 2013, the trial court found true that defendant had four prior

prison term convictions. The court then sentenced defendant to 18 years and eight

months in prison, as follows: the upper term of four years for the assault, plus the upper

term of 10 years for the personal use of a firearm enhancement, plus eight months for

participating in a criminal street gang, plus one year for each of the prison term priors.

The court also imposed two years for the firearm possession by a felon, but stayed it

pursuant to section 654.

       This appeal followed.



                                              5
                                        DISCUSSION

       Defendant argues we should reverse his conviction for participating in a criminal

street gang under section 186.22, subdivision (a), because the evidence is insufficient to

prove beyond a reasonable doubt that he committed the assault with a firearm in

conjunction with another member of his gang, as required under Rodriguez.

       “In deciding the sufficiency of the evidence, we ask whether ‘“after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.”’ [Citation.]

Conflicts and even testimony which is subject to justifiable suspicion do not justify the

reversal of a judgment, for it is the exclusive province of the trial judge or jury to

determine the credibility of a witness and the truth or falsity of the facts upon which a

determination depends. [Citation.] We resolve neither credibility issues nor evidentiary

conflicts; we look for substantial evidence. [Citation.]” (People v. Maury (2003) 30

Cal.4th 342, 403 (Maury).)

       Section 186.22, subdivision (a) defines the crime as follows: “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 who willfully promotes,

furthers, or assists in any felonious criminal conduct by members of that gang, shall be

punished by imprisonment in a county jail for a period not to exceed one year, or by

imprisonment in the state prison for 16 months, or two or three years.”




                                               6
       “The substantive offense defined in section 186.22[, subdivision](a) has three

elements. Active participation in a criminal street gang, in the sense of participation that

is more than nominal or passive, is the first element of the substantive offense defined in

section 186.22[, subdivision](a). The second element is ‘knowledge that [the gang’s]

members engage in or have engaged in a pattern of criminal gang activity,’ and the third

element is that the person ‘willfully promotes, furthers, or assists in any felonious

criminal conduct by members of that gang.’ [Citation.]” (People v. Lamas (2007) 42

Cal.4th 516, 523.)

       The California Supreme Court has held that the third element of the offense is not

satisfied when a gang member commits a felony while acting without another member of

his gang. (Rodriguez, supra, 55 Cal.4th 1125.) The word “members,” as the Supreme

Court explained, “is a plural noun.” (Id. at p. 1132.) “Therefore, to satisfy the third

element, 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[,

subdivision](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.” (Ibid.)

The felonious criminal conduct referred to in the statute must be committed “‘by

members of that gang.’” (Id. at p. 1131.)

       Here, the only other person present during the assault with a firearm was Boyd.

Therefore, we examine the evidence presented at trial to determine whether it was

sufficient to establish beyond a reasonable doubt, to any rational trier of fact, that Boyd



                                              7
was also a member of the Oro Grande gang. The jury never heard testimony nor saw any

documentary evidence that Boyd was a member of the Oro Grande gang. First, Boyd did

not testify at trial that she was a gang member at all, much less a member of the Oro

Grande gang. When the prosecutor cross-examined Boyd, she asked Boyd whether Boyd

had pled guilty to attempted unlawful taking of a vehicle, to which Boyd answered

“Yes.” However, when asked whether the plea included a “gang enhancement,” Boyd

answered “I’m not sure. All I know is I have a strike or something. I’m not sure what

that entails.” The prosecutor did not inquire further. Second, the People’s gang expert

did not testify that Boyd was a member of the Oro Grande gang. The gang expert did

answer “yes” when asked “Are you familiar with [Boyd’s] conviction for attempted

unlawful taking of a motor vehicle with a gang enhancement?” However, there was no

discussion whatsoever of Boyd being a member of the Oro Grande gang. In addition, as

the People point out, one need not be a gang member or associate to commit an act for

the benefit of, in association with, or at the direction of a street gang under section

186.22, subdivision (b)(1) (People v. Valdez (1997) 58 Cal.App.4th 494, 505), and

therefore this testimony was not sufficient to establish Boyd’s membership in the Oro

Grande gang.

                                            DISPOSITION

       Defendant’s conviction for participation in a criminal street gang (§ 186.22, subd.

(a)) is reversed. The trial court is directed to modify defendant’s sentence accordingly

and deliver a certified copy of an amended minute order and amended abstract of



                                              8
judgment, each reflecting the modification of the sentence, to the Department of

Corrections and Rehabilitation. In all other respects the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                      GAUT
                                                                                        J.*


We concur:

RAMIREZ
                       P. J.

KING
                          J.




       * Retired Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.


                                            9
