Filed 4/19/13 P. v. Bustamante 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063189
    Plaintiff and Respondent,
                                                                              (Super. Ct. No. F10902134)
    v.

DOMINIQUE BUSTAMANTE,                                                                    OPINION
    Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Timothy A.
Kams, Judge.
         Carol Foster, 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, Kathleen A. McKenna, Barton
Bowers and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                     INTRODUCTION
         Appellant Dominique Bustamante was charged with two counts of sale of
methamphetamine (counts 1 & 3), two counts of active participation in a criminal street
gang (counts 2 & 5), and one count of transporting methamphetamine for sale (count 4).
         The jury found Bustamante guilty as charged on all counts. He admitted a prior
prison term allegation. On August 22, 2011, Bustamante was sentenced to a total term of
six years eight months, with the terms for some counts stayed and others to run
concurrently.
         Bustamante appealed, contending there is insufficient evidence to support the
Penal Code1 section 186.22, subdivision (a) (section 186.22(a)) convictions in counts 2
and 5, the substantive offense of active participation in a criminal street gang.
Specifically, he contends there is insufficient evidence establishing that the underlying
drug offenses were committed with another gang member. As to count 2, the February
18, 2010, drug sale, the People concede the issue and we accept the concession. As to
count 5, we will conclude there is sufficient evidence to support the verdict that the
February 4, 2010, drug sale involved another gang member. The count 2 conviction is
therefore reversed. In all other respects, the judgment is affirmed.
                       FACTUAL AND PROCEDURAL SUMMARY
         Detective Patricia Varela was working in an undercover capacity in a drug-buy
operation during February of 2010. The focus of the operation was drug activity in the
City of Selma, with two Bulldog gang subsets, the Northside Selma Bulldogs and Barrio
Rifa Bulldogs being targeted. On February 4, 2010, around 5:30 p.m., Varela was in a
car parked in a McDonald‟s lot. She was alone in the car, but monitored by wire and
sight.



1        All further statutory references are to the Penal Code unless noted otherwise.


                                              2.
       Varela placed a telephone call to a woman named Leticia Orozco and asked
Orozco to sell her some methamphetamine. A few minutes later, Orozco called Varela
back and stated she was in the parking lot. Varela described her car to Orozco and a gray
car pulled up next to the detective. A man, Bustamante, was driving the car, with Orozco
in the front passenger seat. The detective walked over to the passenger side of the gray
car and Orozco rolled down the window. Varela handed Orozco money; Orozco handed
Varela a plastic baggie containing .759 grams of methamphetamine.
       On February 18, 2010, around 2:45 p.m., Varela again placed a call to Orozco‟s
phone number. At this point in time, Orozco was the target of the investigation. This
time, however, a man answered. Varela explained she was trying to reach Orozco in
order to purchase some drugs. Varela described her car and the McDonald‟s location and
asked the man if he remembered her from the sale on February 4; he did. The man
agreed to meet Varela at the same location. Varela drove to the McDonald‟s lot. The
detective was wearing a wire that sent a live feed.
       After arriving at the McDonald‟s lot, Varela placed a call to Orozco‟s number and
the same man answered. Varela told him she was in the parking lot and waiting for him;
the man responded he was on his way and driving a gray Chevy Lumina. Around 3:45
p.m., the man arrived in the car he had described and Varela walked over to his car. The
man, Bustamante, insisted they go to a different location to weigh the drugs. Varela
agreed and followed Bustamante to the parking lot of the Paradise Café.
       Bustamante called Varela and asked if she would be more comfortable if a female
delivered the narcotics; Varela said that was fine. About 15 to 20 minutes later, a woman
approached Varela‟s car and climbed inside. Varela asked the woman if she knew
Orozco; the woman did not. Varela asked if the woman knew the man driving the gray
car; she said she did and that his name was Dominique (Bustamante). The woman
handed Varela a plastic baggie of methamphetamine; the baggie had bulldog emblems on
it.

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         The gray car used on February 4 and the gray car used on February 18 were the
same car. Bustamante was the driver on both dates.
         At trial, Sheriff‟s Detective Dewayne Chatman testified as an expert on criminal
street gangs in Fresno County. Over the course of his career, Chatman had numerous
contacts with, and investigated multiple crimes committed by, members of the Fresno
Bulldogs, a subset of the Norteno criminal street gang. Chatman testified that the
Bulldogs were a criminal street gang in Fresno County and one of their primary activities
was drug sales.
         Chatman had “hundreds” of contacts with Bulldog gang members and had spoken
with many Bulldog members about the gang in his role as a gang investigator. He also
had participated in numerous probation and parole searches and execution of search
warrants against Bulldog gang members. Social media accounts of gang members,
including Facebook, My Space, and websites, were monitored. Chatman also had
conducted surveillance of Bulldog gang members on multiple occasions and had
information from the Department of Corrections specific to the Bulldog gang.
         In February of 2010, Chatman was conducting an operation that was investigating
street level suppliers of drugs and specifically, sales of narcotics by members of the
Fresno Bulldogs gang and various subsets of that gang, primarily Selma Bulldogs. A
wiretap was in place for about 60 days and phone calls of multiple Bulldog gang
members were monitored. During the course of that operation, Chatman became familiar
with Bustamante‟s name. It was suspected that Bustamante was a street level supplier of
drugs.
         Chatman opined that Bustamante was an active member and participant in the
Fresno Bulldogs criminal street gang. Bustamante had admitted in jail classification
questionnaire forms that he was a member of the gang; he also had gang tattoos,
including a Bulldog on his chest. Chatman also was of the opinion that the drug



                                             4.
packaging from the February 18 sale was a form of branding by the Fresno Bulldogs that
identified the drugs as a Bulldogs gang product.
       Although Bustamante had tattoos indicating he identified with the subset, Eastside
Fresno Dog, and at other times indicated self-identification with the McKenzie Street
Dog, law enforcement also identified him as an active participant in Barrio Selma Rifa
Bulldogs, in part, because he “work[ed] in concert” with another person who was a
member of that subset, namely Orozco. Initial investigations identified Bustamante as an
associate member of Barrio Selma Rifa or Selma Bulldogs, both subsets of the Fresno
Bulldogs.
       Chatman testified that identification of gang members was made using a ten-point
criteria. Some of the criteria used included self-identification, jail classification, tattoos,
reliable sources such as probation and parole files or officers, police contact, writings
including graffiti, and conversations including telephone calls. Chatman stated that
Orozco was a Barrio Selma Rifa Bulldogs member, a subset of the Fresno Bulldogs,
based upon “police reports.”
       The jury found Bustamante guilty as charged on all counts. He admitted the prior
prison term allegation.
                                        DISCUSSION
   I. SUFFICIENCY OF THE EVIDENCE FOR GANG OFFENSE
       Bustamante contends there is insufficient evidence to support the section
186.22(a) convictions for the substantive offense of active participation in a criminal
street gang. Specifically, that there is insufficient evidence establishing that the
underlying drug offenses were committed with another gang member.
       Standard of Review
       When assessing a challenge to the sufficiency of the evidence, we examine the
entire record in the light most favorable to the judgment below to determine whether it
contains substantial evidence from which a reasonable trier of fact could find the

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defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557,
578.) “The standard is the same, regardless of whether the prosecution relies mainly on
direct or circumstantial evidence. [Citation.]” (People v. Vazquez (2009) 178
Cal.App.4th 347, 352 (Vazquez).)
        “„Before a judgment of conviction can be set aside for insufficiency of the
evidence to support the trier of fact‟s verdict, it must clearly appear that upon no
hypothesis whatever is there sufficient evidence to support it.‟ [Citation.]” (People v.
Kwok (1998) 63 Cal.App.4th 1236, 1245.) Generally, the testimony of a single witness is
sufficient to prove a disputed fact unless the testimony is inherently improbable or
physically impossible. (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Scott
(1978) 21 Cal.3d 284, 296.)
        The trier of fact makes credibility determinations and resolves factual disputes.
(People v. Estrella (1995) 31 Cal.App.4th 716, 724-725 (Estrella).) We will not
substitute our evaluation of a witness‟s credibility for that of the fact finder. (Vazquez,
supra, 178 Cal.App.4th at p. 352.) In conducting a review for sufficiency of the
evidence, we presume in support of the judgment the existence of every fact the trier of
fact reasonably could deduce from the evidence. (People v. Lee (2011) 51 Cal.4th 620,
632.)
        Count 2
        In People v. Rodriguez (2012) 55 Cal.4th 1125, 1132 (Rodriguez), the California
Supreme Court held that a conviction under section 186.22(a), requires that the defendant
commit the underlying felony with at least one other gang member. There was no
evidence that the woman assisting Bustamante with the February 18 drug sale (the count
2 offense), was a gang member. The People concede the point. Therefore, we reverse
the count 2 conviction.




                                              6.
       Count 5
       The section 186.22(a) substantive gang offense is comprised of three elements:
(1) active participation in a criminal street gang; (2) knowledge that the gang‟s members
have engaged in a pattern of criminal gang activity; and (3) the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.
(People v. Lamas (2007) 42 Cal.4th 516, 523.) In Rodriguez, the California Supreme
Court clarified that in order to satisfy the third element, a defendant must willfully
advance, encourage, contribute to, or help members of his or her gang commit felonious
criminal conduct. (Rodriguez, supra, 55 Cal.4th at p. 1132.) “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.” (Ibid.)
       Here, only the evidence to support the third element is at issue. Bustamante
contends the evidence is insufficient to establish that the count 5 offense was committed
in conjunction with another gang member because of a lack of evidence that Orozco was
a gang member. The evidence that Orozco was a gang member consists of the expert
opinion offered by Chatman. Bustamante contends the expert opinion is insufficient.
       Evidence Code section 801 limits expert opinion testimony to an opinion that is
“[b]ased on matter ... perceived by or personally known to the witness or made known to
[the witness] at or before the hearing, whether or not admissible, that is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the subject to
which [the expert] testimony relates ....” (Evid. Code, § 801, subd. (b).) Matter that
ordinarily is inadmissible properly may form the basis of an expert‟s opinion. (People v.
Killebrew (2002) 103 Cal.App.4th 644, 653, citing People v. Gardeley (1996) 14 Cal.4th
605, 618-619.)
       It is well settled that expert testimony about gang culture, habits, and membership
is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a
finding on a gang allegation. (People v. Valdez (1997) 58 Cal.App.4th 494, 506 (Valdez);

                                              7.
People v. Ferraez (2003) 112 Cal.App.4th 925, 930; In re Frank S. (2006) 141
Cal.App.4th 1192, 1196.) “[E]vidence of gang membership is often relevant to, and
admissible regarding, the charged offense. Evidence of the defendant‟s gang affiliation--
including evidence of the gang‟s territory, membership, signs, symbols, beliefs and
practices, criminal enterprises, rivalries, and the like--can help prove identity, motive,
modus operandi, specific intent, means of applying force or fear, or other issues pertinent
to guilt of the charged crime. [Citations.]” (People v. Hernandez (2004) 33 Cal.4th
1040, 1049.)
       In People v. Killebrew, supra, 103 Cal.App.4th at pages 656-657, this court
examined and identified the following topics upon which expert gang testimony was
properly received: (1) the size, composition or existence of a gang; (2) gang turf or
territory; (3) an individual defendant‟s membership in, or association with, a gang; (4) the
primary activities of a specific gang; (5) motivation for a particular crime, generally
retaliation or intimidation; (6) whether and how a crime was committed to benefit or
promote a gang; (7) rivalries between gangs; (8) gang-related tattoos, gang graffiti and
hand signs; and (9) gang colors or attire. As we noted, the list was not exhaustive or an
exclusive list of all gang topics for which expert opinion may be admitted. (Id. at p. 657.)
       In any event, courts have without question permitted law enforcement officers to
provide expert testimony regarding gangs. (See, e.g., People v. Champion (1995) 9
Cal.4th 879, 919; People v. Fudge (1994) 7 Cal.4th 1075, 1091; People v. Hawthorne
(1992) 4 Cal.4th 43, 52.) The record reflects that over the course of his career, Chatman
had numerous contacts with, and investigated multiple crimes committed by, members of
the Bulldog gang and its various subsets. Chatman had “hundreds” of contacts with
Bulldog gang members and had spoken with many Bulldog members about the gang.
Law enforcement had been monitoring and reporting on social media accounts of gang
members, including Facebook, My Space, and websites. Chatman also had conducted
surveillance of Bulldog gang members on multiple occasions and had information from

                                              8.
the Department of Corrections specific to the Bulldog gang. In 2010, Chatman was
conducting an operation that was investigating street level suppliers of drugs and
specifically, sales of narcotics by members of the Fresno Bulldog gang and various
subsets of that gang, primarily Selma Bulldogs. A wiretap was in place for about 60 days
and phone calls of multiple Bulldog gang members were monitored.
       All of this background and information, specifically information from the 60-day
investigation of the Selma Bulldog subset, was available to and known by Chatman at the
time he offered his opinion that Orozco was a Selma Bulldog gang member. Females are
known to be gang members. (See In re Carleisha P. (2006) 144 Cal.App.4th 912, 916.)
       To the extent Bustamante claims Chatman‟s expert opinion is unsupported
because the two police reports specifically referencing the February 4 and 18 drug buys
do not identify Orozco as a gang member, his claim lacks merit. Chatman testified that
both those incidents were part of the gang operation being conducted. Chatman and
Varela were working the same narcotics sales operation by Bulldog gang members and
Varela had at one point targeted Orozco.
       However, when Chatman states his opinion about Orozco is “based off of the
police reports,” it is defense counsel who assumes the reports to which Chatman refers
are just the reports of the February 4 and 18 drug buys. Defense counsel‟s response to
Chatman‟s testimony is, “Okay. And assuming the police reports are true, whichever
report it is you are looking at, the two versions we found.” The People objected to
defense counsel‟s remark and the objection was sustained. Defense counsel did not ask
Chatman to elaborate further on the sources he used in forming his opinion of Orozco.
The jury reasonably could infer that Chatman was referring to all the reports prepared by
police detailing all of the information and activity of the two-month operation
investigating the Selma Bulldogs.
       Bustamante is correct in that an expert may not testify to incompetent hearsay.
(People v. Killebrew, supra, 103 Cal.App.4th at p. 659.) Chatman, however, did not

                                            9.
testify to incompetent hearsay in the guise of stating a reason for his opinion. Moreover,
inadmissible matter can, as we noted previously, form the basis of an expert‟s opinion.
(Id. at p. 653, citing People v. Gardeley, supra, 14 Cal.4th at pp. 618-619.)
       Because an expert‟s need to consider extrajudicial matters and a jury‟s need for
information sufficient to evaluate an expert opinion may conflict with a defendant‟s
interest in avoiding substantive use of unreliable hearsay, disputes in this area must
generally be left to the sound judgment of the trial court. (People v. Catlin (2001) 26
Cal.4th 81, 137.) Here, there was no attempt to introduce the details of any inadmissible
hearsay forming the basis of Chatman‟s opinion into evidence.
       The cases cited by Bustamante for the proposition that nonspecific hearsay
obtained from reading a police report is not competent evidence are inapposite to this
case. In the three cases cited by Bustamante, gang experts were attempting to cite non-
specific details of police reports, specifically inadmissible hearsay portions of those
reports, in order to establish the predicate offenses of a gang. (In re I.M. (2005) 125
Cal.App.4th 1195, 1206-1207; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003-
1004; In re Leland D. (1990) 223 Cal.App.3d 251, 259-260.)
       An expert may testify concerning the gang membership of particular individuals.
(Valdez, supra, 58 Cal.App.4th at p. 506.) The jury was instructed that it was not
required to accept as true an expert‟s opinion; it should evaluate the expert‟s
believability; and consider the reasons given by the expert for the opinion. The jury also
was instructed to disregard any opinion it considered unsupported by the evidence.
       We decline Bustamante‟s invitation to conclude, as a matter of law, that the
testimony of one expert witness as to the gang membership of a particular individual is
insufficient evidence of gang membership. The testimony of one witness is sufficient to
prove a fact. (People v. Young, supra, 34 Cal.4th at p. 1181.) The trier of fact makes
credibility determinations and resolves factual disputes. (Estrella, supra, 31 Cal.App.4th



                                             10.
at pp. 724-725.) An appellate court will not substitute its evaluation of a witness‟s
credibility for that of the fact finder. (Vazquez, supra, 178 Cal.App.4th at p. 352.)
   II. SECTION 654
       Bustamante argues in his opening brief that the term imposed on the count 2
offense, the section 186.22 substantive gang offense, should have been stayed pursuant to
section 654. The People conceded in their respondent‟s brief the term imposed for count
2 should be stayed, pursuant to the holding in People v. Mesa (2012) 54 Cal.4th 191, 197-
198. In the supplemental briefing, both Bustamante and the People concede the count 2
conviction must be reversed.
       In light of our conclusion that Rodriguez, supra, 55 Cal.4th at page 1125, requires
reversal of the count 2 conviction, the issue of application of section 654 is moot.
   III. SECTION 4019 - EQUAL PROTECTION
       Bustamante‟s final contention on appeal is that additional presentence credits
should be awarded to him based upon the amendments to section 4019, operative October
1, 2011. He contends failure to award the additional credit constitutes a violation of
equal protection principles. This court has previously addressed, and rejected, the equal
protection arguments raised here by Bustamante in our decision in People v. Ellis (2012)
207 Cal.App.4th 1546 (Ellis).
       Section 4019, subdivision (h) specifically states that the changes increasing credits
were to apply prospectively only. In Ellis, we concluded that the intent of the Legislature
“was to have the enhanced rate apply only to those defendants who committed their
crimes on or after October 1, 2011.” (Ellis, supra, 207 Cal.App.4th at pp. 1552-1553.) It
is undisputed that Bustamante‟s offenses were committed well before this date.
       “The concept of equal protection recognizes that persons who are similarly
situated with respect to a law‟s legitimate purposes must be treated equally.” (People v.
Brown (2012) 54 Cal.4th 314, 328.) Contrary to Bustamante‟s contention, the



                                            11.
amendments to section 4019 operative October 1, 2011, do not treat similarly situated
groups in a disparate manner. (Ellis, supra, 207 Cal.App.4th at pp. 1551-1552.)
       The amendments to section 4019 address “„future conduct in a custodial setting by
providing increased incentives for good behavior.‟” (Ellis, supra, 207 Cal.App.4th at
p. 1551.) Prisoners serving time before and after the effective date of a statute affecting
conduct credits are not similarly situated for purposes of equal protection analysis.
(People v. Brown, supra, 54 Cal.4th at pp. 329-330, disapproving In re Kapperman
(1974) 11 Cal.3d 542.) The correctional purpose of a statute that rewards behavior is not
served by rewarding prisoners who served time in custody prior to the effective date of
the incentives because they could not have modified their behavior in response to the
incentives. (People v. Brown, supra, at p. 329.)
       Bustamante‟s offenses were committed well before the effective date of the
amendment.2 Based upon our determination in Ellis that those committing crimes prior
to October 1, 2011, are not similarly situated to those committing crimes on and after
October 1, 2011, for purposes of equal protection analysis pertaining to conduct credits,
we reject Bustamante‟s contentions.
                                      DISPOSITION
       The count 2 conviction is reversed. In all other respects, the judgment is affirmed.
The superior court shall prepare an amended abstract of judgment and forward the same
to the appropriate authorities.




2      His sentencing also occurred before the effective date for purposes of application
of section 1170, subdivision (h). (Ellis, supra, 207 Cal.App.4th at p. 1553.)


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                                _____________________
                                             Franson, J.
WE CONCUR:


 _____________________
Poochigian, Acting P.J.


 _____________________
Detjen, J.




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