Filed 10/10/13 P. v. Serrano-Aguilera 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F064196
         Plaintiff and Respondent,
                                                                           (Super. Ct. Nos. BF128858A &
                   v.                                                               BF136267A)

JESUS ENRIQUE SERRANO-AGUILERA,
                                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, 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, Julie A. Hokans and Robert
Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                    INTRODUCTION
       Defendant Jesus Enrique Serrano-Aguilera (defendant), a convicted felon, was
arrested for unlawfully possessing a firearm. The arresting officer testified that defendant
admitted he was a gang member and that he was delivering the firearm to another gang
member. There was no evidence defendant was promoting, furthering, or assisting
specific felonious criminal conduct of the other unidentified gang member or any other
gang member.
       Last year, the California Supreme Court held a gang member does not violate
Penal Code1 section 186.22, subdivision (a) (section 186.22(a)) by committing a felony
alone. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1128 (Rodriguez).) Applying this
rule here, we reverse defendant’s conviction on count 2.
       Defendant also claims the trial court improperly denied his motion for a
continuance and trial counsel failed to effectively articulate the necessity of the
continuance. Finally, defendant claims the section 186.22, subdivision (b)(1)
enhancement was submitted to the jury on an “unlawful theory.” We disagree with these
contentions and affirm the remainder of the judgment.
                                          FACTS
       Defendant was charged with unlawful possession of a firearm as a felon (count 1 –
former § 12021, subd. (a)(1)2), active participation in a criminal street gang (count 2 –
§ 186.22(a)), and resisting a peace officer (count 3 – § 148, subd. (a)(1)).3 The
information alleged defendant committed the firearm offense for the benefit of, at the


1     All subsequent statutory references are to the California Penal Code unless
otherwise noted.
2     Section 12021 was repealed as of January 1, 2012 (Stats. 2010, ch. 711, § 4). (See
§ 29800, subd. (a)(1).)
3      Kern County Superior Court case No. BF136267A.



                                              2.
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. (§ 186.22, subd.
(b)(1).) A prior felony conviction for robbery was alleged as to counts 1 and 2. (§§ 667,
subds. (c)-(j) & 1170.12, subds. (a)-(e); 667, subd. (a).)
       A preliminary hearing was held on September 2, 2011. Defendant appeared in
court with counsel. Officer Matthew Tramel testified at the preliminary hearing that
defendant “admitted to being in possession of the firearm and that he was delivering it to
a fellow … gang member.”
       On November 7, 2011, defendant appeared in court with counsel for trial. Defense
counsel moved for a continuance (§ 1050) in order to file a Pitchess4 motion. The
Pitchess motion was predicated on defendant’s allegation that Tramel fabricated
defendant’s admission that he was bringing the gun to a gang member. The trial court
asked why the motion was being brought the day of trial and not earlier. Defense counsel
said defendant had not told him of the grounds for the Pitchess motion until earlier that
morning.
       The prosecutor objected, claiming the request was not timely. The trial court then
stated its ruling:

              “Pitchess motions are generally covered under Evidence Code
       Section 1043. I’ve had an opportunity to review that, and I did review that, and it
       appears that -- two things: Number one, the motion is untimely. Here we are just
       moments from conducting motions in limine and bringing a panel over, number
       one. Had plenty of time to bring that up.

            “And, number two, it does not satisfy the numbered requirements as to the
       number of hoops that need to be jumped through in order to bring that motion.




4      Pitchess v. Superior Court (1974) 11 Cal.3d 531.



                                              3.
              “So the motion to continue in order to bring a Pitchess motion is going to
        be denied as being untimely and not satisfying those requirements … per Evidence
        Code Section 1043.”
        The court then took up other motions in limine. Shortly thereafter, defense
counsel said, “I believe [defendant] had some disputes with my representations to the
Court during my motion a minute ago, and I believe he would like to resolve those by
way of a Marsden[5] motion.” The court then held a Marsden hearing. The court found
credible defense counsel’s representation that defendant first told him about the grounds
for the Pitchess motion on the morning of November 7, 2011. The court denied the
Marsden motion and reiterated that the motion to continue the trial was not timely.
        During the trial, Tramel testified he was a police officer with the gang unit of the
Bakersfield Police Department. On April 3, 2011, he and Officer Joe Cooley were on
patrol in a marked police vehicle near the streets of Hayslett and Buddy. The officers
were patrolling the area in response to criminal activity related to the Colonia Bakers
street gang.
        While on patrol, Tramel observed defendant riding a bicycle against traffic.
Tramel activated his lights and siren when defendant was “no more than 25 feet, 20 feet”
ahead of him. Defendant began to pedal “extremely fast” away from the officers.
Tramel pulled alongside defendant, identified himself as a police officer, and ordered
defendant to stop several times. Defendant said, “Yeah, yeah, yeah. I got no brakes,”
and continued to accelerate. He continued for 10 to 15 seconds and eventually came to a
stop.
        Tramel exited his vehicle and ordered defendant to turn around and place his
hands on his head. Defendant did not turn around, and took one large step away. Tramel
reached out and grabbed his left hand. Defendant pulled his hand from Tramel’s grasp.



5       People v. Marsden (1970) 2 Cal.3d 118.



                                              4.
Cooley came to assist, and gained control of one of defendant’s hands. Tramel controlled
the other hand and they were able to handcuff defendant.
       Tramel asked whether defendant had anything illegal “on him.” Defendant said he
had a firearm in his front right pants pocket. Tramel found a semiautomatic .32-caliber
pistol loaded with three live rounds in defendant’s front right pants pocket. Tramel
performed a “functions check” of the weapon, and determined it was operational.
       Tramel read to defendant the Miranda6 warnings. Tramel then asked why
defendant was “running from officers.” Defendant replied he did not want to go to jail.
Tramel asked what defendant was doing with the firearm, and testified defendant
responded as follows:

       “He stated that he was delivering it to another member of the Colonia Bakers. I
       believe his words were to the effect of he was delivering the gun to a ‘Colonia
       homie.’ Which I had him elaborate on. I asked him to elaborate on. He said it
       was another member of the Colonia Bakers criminal street gang.”
       Defendant said he considered himself a member of the Colonia Bakers criminal
street gang. He said he also had friends and family in the gang.
       Officer Isaac Aleman, a Bakersfield police officer assigned to the gang unit,
offered an expert opinion that defendant was an active participant of the Colonia Bakers
gang on April 3, 2011.
       Aleman testified that the Colonia Bakers gang is a subset of the Sureno gang, that
the Colonia Bakers engage in an ongoing pattern of criminal activity, and that their
primary criminal activities include illegal weapons possession, robbery and murder.
       The day before he testified, Aleman took photographs of defendant’s tattoos.
Defendant had a tattoo across the back of his head that read “Colonia” in letters of “about
five inches.” Defendant had a tattoo reading “Eastside” on his right forearm, and a tattoo


6      Miranda v. Arizona (1966) 384 U.S. 436.



                                            5.
of the word “Colonia” on his left hand. Defendant had tattoos saying “RIP colonieros,”
“Shrek,” and “Crow.” Aleman testified that Shrek and Crow were Colonia Bakers gang
members murdered by a rival gang. On defendant’s index finger was a tattoo of the letter
“C.” Defendant also had a tattoo of a skull across the top portion of his hand. Aleman
testified this was “a common tattoo among Colonia Bakers gang members.”
       Aleman testified that when defendant was booked on April 3, 2011, he was asked
whether he belonged to any gang. Defendant said he belonged to “South” and, when
asked which clique, he said “Colonia.”
       In prior bookings on July 28, 2002, July 31, 2009, and September 12, 2010,7
defendant claimed “South” and “Colonia.” He also claimed “South” in bookings on
December 2, 2004, and May 6, 2007.
       The jury convicted defendant as charged in counts 1, 2 and 3, and found the gang
enhancement to be true. The trial court found the prior conviction allegations to be true.
       The court sentenced defendant to 15 years in prison, as follows. On count 1,
unlawful possession of a firearm, defendant was sentenced to the upper term of six years,
plus four years for the gang enhancement (§ 186.22, subd. (b)(1)), plus five years for the
section 667, subdivision (a) enhancement. On count 2, active gang participation,
defendant was sentenced to the upper term of six years. That term was stayed pursuant to
section 654. On count 3, resisting a peace officer, defendant was sentenced to one year.
That term was ordered to run concurrent to the sentence on count 1.
       Defendant appealed.8

7    On September 12, 2010, defendant told officer Ryan Kroeker he had been a
member of the Colonia Bakers gang “for a long time.”
8      Defendant also appealed in Kern County Superior Court case No. BF128858A.
He raises no issue regarding the judgment in case No. BF128858A, and has not briefed
the underlying facts. In that case, defendant entered a negotiated plea of no contest to
one count of robbery (§ 212.5, subd. (c)). Imposition of sentence was suspended,
defendant was admitted to probation for three years, and he was ordered to do one year in


                                            6.
                                        DISCUSSION
                                               I.

 THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE
                 MOTION FOR A CONTINUANCE
       Defendant contends the trial court abused its discretion and violated due process
when it denied his motion for a continuance. We disagree.
       “[A]ll proceedings in criminal cases shall be set for trial and heard and determined
at the earliest possible time.” (§ 1050, subd. (a).) “Continuances shall be granted only
upon a showing of good cause.” (Id., subd. (e).) If a moving party fails to give proper
notice of a motion for continuance, and is unable to show good cause for that failure, “the
motion for continuance shall not be granted.” (Id., subd. (d).)
       Defendant argues that trial counsel “had just learned of the need for a continuance,
explaining the delay.” But explaining a delay does not necessarily excuse it. Defendant
was present at the preliminary hearing at which Tramel testified. Yet, defendant did not
tell counsel he believed Tramel had fabricated defendant’s statement until the day set for
trial, more than two months after the preliminary hearing. Defendant’s failure to tell
counsel of his allegation that Tramel was lying about a key piece of evidence is not good
cause justifying delay in moving for a continuance.
       Because defendant made no showing of good cause why the motion was not made
earlier, the trial court properly denied it. (See § 1050, subds. (d), (e).)
                                              II.
       DEFENSE COUNSEL WAS NOT PREJUDICIALLY INEFFECTIVE
       Defendant next claims his trial counsel was ineffective “for failing to adequately
explain the necessity of a continuance.” (Full capitalization omitted.) Specifically,


the county jail. Probation was ultimately revoked, and defendant was sentenced to three
years in prison concurrent to his sentence in this case.



                                               7.
defendant claims trial counsel did not explain “why a Pitchess motion was so critical.”
We disagree.
       In making the continuance motion, counsel referenced Tramel’s allegation that
defendant said he intended to deliver the gun to a gang member. Counsel then explained
defendant believed the officer was lying. We believe this explanation does convey why
counsel wanted to bring a Pitchess motion. The import of counsel’s statements is self-
evident: if Tramel was lying about defendant’s statement, the evidence of gang-
relatedness would be weakened and a Pitchess motion might lead to evidence that would
bolster defendant’s argument on this point. Defense counsel simply made an
enthymematic argument rather than explicitly stating this obvious, implied conclusion
that he believed a Pitchess motion would be helpful to his client’s case. Defense counsel
was not constitutionally ineffective.
       Even if defense counsel had inadequately articulated the importance of the
anticipated Pitchess motion, defendant suffered no prejudice.
       “A defendant claiming ineffective assistance of counsel under the federal or state
Constitution must show both deficient performance under an objective standard of
professional reasonableness and prejudice under a test of reasonable probability of a
different outcome. [Citation.] Defendant is unable to show that counsel’s performance
resulted in prejudice to him.” (People v. Ochoa (1998) 19 Cal.4th 353, 414.) The trial
court did not deny the continuance motion because it believed the Pitchess motion was
unimportant to the defense, it denied it as untimely.9 Thus the record shows that even the
most robust explanation of “why a Pitchess motion was so critical” would not have
resulted in a different outcome.

9       The court also denied the motion for failure to comply with Evidence Code
section 1043. We do not address that part of the trial court’s ruling as the issue before the
trial court was whether a motion to continue should be granted in order to file a Pitchess
motion, and that is the issue raised by the parties on appeal.



                                             8.
                                              III.
         THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT
     DEFENDANT’S CONVICTION FOR VIOLATING SECTION 186.22(A)
       Defendant next contends the evidence is insufficient to support his conviction for
violating section 186.22(a). We agree.
       Section 186.22(a) provides, in 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 who willfully promotes, furthers, or assists in any felonious criminal conduct
       by members of that gang, shall be punished .…”
       “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.”
(Rodriguez, supra, 55 Cal.4th at p. 1130.)
       The third element is the focal point of defendant’s contention. Defendant argues
section 186.22(a) does not punish the “direct perpetration of an offense by a gang
member” and “there must be more than one participant” involved to establish a violation
of section 186.22(a). We agree with the latter point, and therefore reverse the
conviction.10



10      The former point is incorrect. Section 186.22(a) does punish a gang member who
directly perpetrates a crime. “Nothing in the language of section 186.22(a) would
suggest that one may not promote, further, or assist ‘in any felonious criminal conduct by
members of that gang’ by either aiding and abetting other gang members in committing a
felony or by directly committing a felony with other gang members.” (Rodriguez, supra,
55 Cal.4th at pp. 1135-1136, italics added.) Defendant’s focus on direct perpetration
versus aiding and abetting is misplaced, because either type of crime could potentially
satisfy section 186.22(a). The important distinction is whether defendant promoted,


                                              9.
        After the parties completed briefing in this case, the California Supreme Court
issued its decision in Rodriguez. In Rodriguez, the Court resolved the issue presented
here.
        “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.” (Rodriguez, supra, 55 Cal.4th at p. 1132.) Thus, a gang member
does not violate section 186.22(a) by committing a felony alone. (Rodriguez, supra, at
p. 1128.)
        Here, the Attorney General cites no evidence defendant committed an underlying
felony with other gang members. Instead, the Attorney General argues defendant’s claim
is precluded by our holding in People v. Ngoun (2001) 88 Cal.App.4th 432 (Ngoun).
There, we held that section 186.22(a) applies to “the perpetrator of felonious gang-related
criminal conduct as well as to the aider and abettor.” (Ngoun, supra, at p. 436.) In
Ngoun, the defendant went to a party with other members of his gang, asked a fellow
gang member to “‘watch his back’” and then shot the victim. (Id. at p. 437.) “Nothing in
the language of section 186.22(a) would suggest that one may not promote, further, or
assist ‘in any felonious criminal conduct by members of that gang’ by either aiding and
abetting other gang members in committing a felony or by directly committing a felony
with other gang members. Ngoun did not address the present issue of whether one
committing a felony alone may violate section 186.22(a).” (Rodriguez, supra, 55 Cal.4th
at pp. 1135-1136.)
        The Attorney General also cites to our prior decision in People v. Sanchez (2009)
179 Cal.App.4th 1297 and to People v. Salcido (2007) 149 Cal.App.4th 356. To the




furthered, or assisted felonious criminal conduct of other gang members or, instead,
committed the felony alone.


                                            10.
extent Sanchez and Salcido were inconsistent with the opinion in Rodriguez, they have
been disapproved. (Rodriguez, supra, 55 Cal.4th at pp. 1136-1137 & fn. 8.)
       “[W]ith section 186.22(a), the Legislature sought to punish gang members who
acted in concert with other gang members in committing a felony .…” (Rodriguez,
supra, 55 Cal.4th at p. 1138.) In this case the evidence was insufficient to establish that
defendant promoted, furthered, or assisted specific, felonious criminal conduct by other
members of the Colonia Bakers. The conviction on count 2 must be reversed.11

                                            IV.

       DEFENDANT FAILED TO PRESERVE FOR REVIEW HIS CLAIM
         REGARDING THE PROSECUTOR’S CLOSING ARGUMENT
       Defendant contends the gang enhancement “was submitted to the jury on an
unlawful theory.” (Full capitalization omitted.) Specifically, he posits that the
prosecutor “argued that [the gang expert’s testimony] showed appellant’s intent to benefit
the gang by giving the gun to a gang member. [Citation.] However, possession of a
weapon is not necessarily illegal. Thus, it was an unlawful theory.”
       Defendant’s opening brief cites to People v. Green (1980) 27 Cal.3d 1 as the sole
authority for his contention. Green is distinguishable. In Green, a special circumstance
found by the jury involved the issue of whether a murder was committed during the
commission of a kidnapping. (Id. at p. 62.) The trial court incorrectly instructed the jury
on an element of the special circumstance and the district attorney argued the evidence to
the jury on alternate theories, some of which were “legally correct and others [that were]
legally incorrect.” (Id. at pp. 63-64, 69, abrogated by People v. Martinez (1999) 20
Cal.4th 225.) The court held that, when “the reviewing court cannot determine from the

11    Because we reverse the section 186.22(a) conviction, we need not address
defendant’s claim that the trial court improperly instructed the jury on that crime with
CALCRIM No. 1400.




                                            11.
record on which theory the ensuing general verdict of guilt rested, the conviction cannot
stand.” (People v. Green, supra, 27 Cal.3d at p. 69.) In Green, the jury instructions
given by the trial court were deficient and the deficiency was such as to “ratif[y] the
prosecutor’s error.” (People v. Morales (2001) 25 Cal.4th 34, 43.)
       Defendant does not raise any claims of instructional error regarding the gang
enhancement; he has not asserted that the trial court “presented the state’s case to the
jury on an erroneous legal theory or theories.” (People v. Morales, supra, 25 Cal.4th at
p. 43, italics added.) “[W]e presume that the jury relied on the instructions, not the
arguments, in convicting defendant.” (Id. at p. 47.) Thus, even if the prosecutor
misstated the law, as defendant claims, “such an error would merely amount to
prosecutorial misconduct [citation] during argument, rather than trial and resolution of
the case on an improper legal basis.” (Id. at p. 43.) Claims of prosecutorial misconduct
must be brought to the trial court’s attention by timely objection and a request must be
made for an admonition. (People v. Parson (2008) 44 Cal.4th 332, 359.) Defendant did
not do that; his claim has not been preserved for review.
                                             V.
               REVERSAL OF THE CONVICTION ON COUNT 2
             RENDERS DEFENDANT’S FINAL CONTENTION MOOT
       Defendant argues the abstract of judgment should be amended to reflect a stay of
the prison term on count 2 pursuant to section 654. Because we reverse the conviction on
count 2, this issue is moot.
                                      DISPOSITION
       Defendant’s conviction in count 2, of violating Penal Code section 186.22,
subdivision (a), is reversed and sentence thereon is vacated. In all other respects, the
judgment is affirmed.
       The trial court is directed to prepare an abstract of judgment reflecting this change.
Additionally, the amended abstract should reflect that the trial judge in the case was


                                             12.
Judge John R. Brownlee not, as the abstract of judgment lists, Judge Twisselman II. The
trial court shall transmit a certified copy of the amended abstract of judgment to the
appropriate authorities.

                                                                _____________________
                                                                           DETJEN, J.
WE CONCUR:


 _____________________
 WISEMAN, Acting P.J.


 _____________________
 POOCHIGIAN, J.




                                            13.
