Filed 3/24/15 P. v. Rodriguez CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137490, A138562
v.
ANTHONY LORENZO RODRIGUEZ,                                           (Contra Costa County
                                                                     Super. Ct. No. 05-101106-3)
         Defendant and Appellant.


         Anthony Lorenzo Rodriguez appeals from a judgment upon a jury verdict finding
him guilty of possessing cocaine salt and methamphetamine for sale (Health & Saf. Code,
§§ 11351, 11378 [counts one and two]) and active participation and promotion of a
criminal street gang (Pen. Code,1 § 186.22, subd. (a) (section 186.22(a)) [count three]).
The jury also found true the allegations as to counts one and two that the offenses were
committed for the benefit and at the direction of, and in association with the Norteños, a
criminal street gang, in violation of section 186.22, subdivision (b)(1). The trial court
found that defendant suffered a prior serious felony conviction (§ 667, subd. (a)(1)); a
prior “strike” conviction (§§ 667, subds. (b)–(i), 1170.12); and that he served a prior
prison term (§ 667.5, subd. (b)). Defendant contends that the evidence is insufficient to
support the gang participation offense, and that the corresponding serious felony
enhancement must be stricken. He also contends that he is entitled to additional custody
credits. We reverse the gang participation conviction and strike the section 667,


         1
             Unless otherwise indicated, all further statutory references are to the Penal Code.


                                                             1
subdivision (a)(1) enhancement and modify the judgment accordingly. We remand the
matter to the trial court for a calculation of custody credits.
                                          I. FACTS
       On the afternoon of April 15, 2012, Officer Miguel Aguiar was on patrol in
Brentwood when he observed defendant standing outside of a Ford Thunderbird in the
carport of the apartment complex at 100 Village Drive. Aguiar knew defendant from
previous contacts. Defendant was on parole and subject to a search clause. Aguiar
searched defendant and found keys in his right front pants pocket.
       Aguiar used defendant’s keys to open the Ford Thunderbird which defendant said
he had recently purchased. Officer Peter Folena, who also responded to the scene with
other officers, found nothing relevant in the car. They proceeded to Apartment 221 at
100 Village Drive. Dennis Resendez responded to the door and consented to a search of
his apartment.
       The police found a black briefcase inside Resendez’s apartment. Sergeant
Misquez contacted Aguiar and obtained the keys that had been seized from defendant.
Among the keys were four small padlock keys, all of which fit the two padlocks that were
on the briefcase.
       Inside the briefcase, the police found two large plastic bags that contained smaller
baggies with a crystal-like substance. The briefcase also contained a black replica
firearm with a clip of BBs, a pay-owe sheet, $30, and a box of blank checks. There were
no latent prints found on the baggies containing the controlled substances.
       Resendez had met defendant a month or two before the search. He knew
defendant’s mother who lived in an apartment in the same complex. Defendant was
living in his mother’s apartment. About two or three weeks before the search,
defendant’s mother asked Resendez to do her a favor and to keep a black briefcase in his
apartment. Defendant would come by the apartment once or twice a day every other day
or so and use the briefcase. Resendez stepped out of the room when defendant was there.
He suspected something illegal but did not want to know what was in the briefcase.



                                               2
Defendant did not have a key to Resendez’s apartment, but Resendez had a key to
defendant’s mother’s apartment so that he could walk her dog when she was away.
       Aguiar, along with Officer Daansen, proceeded to search defendant’s apartment at
the 100 Village Drive complex. They found two notebooks on the bedroom floor of the
apartment. The notebooks contained lyrics with two stanzas relating to drug dealing and
selling drugs including the phrase, “Drug deala [sic] is all I know.” The notebook also
contained numerous references to being a Norteño, and to R20, a reference to the Rollin’
20s (a subset of the Norteños), and living the life of a gang banger and drug dealer. They
also found some photographs. Some of the photographs showed defendant wearing a
black and red jacket kneeling in the center front of a group of people wearing red
clothing. Aguiar testified that defendant’s kneeling in the center of the photographs
signified a position of power within the group. The red clothing signified membership in
the Norteños criminal street gang. Aguiar identified Henry Grenado, another individual
standing to the left of defendant as a Norteño gang member. Another photograph found
in the apartment showed U.S. currency in numerous denominations which Aguiar opined
demonstrated power to a gang because it shows the gang’s ability to further its activities.
In another photograph, Grenado is seen flashing one and four with his fingers which
Aguiar testified was a gesture signifying gang affiliation with the Norteños. Aguiar
opined that defendant’s offenses were committed for the benefit of the Norteños based on
the large quantity of cocaine and methamphetamine found. He testified that the Norteño
gang benefited in that money obtained from the sales would go to purchasing vehicles,
clothing, weapons and additional narcotics to further gang activity in the neighborhood.
Aguiar also testified that Norteños were required to pay taxes for protection to those
members who are incarcerated.
       Shana Meldrum, a criminalist, tested the contents of the baggies found in the
briefcase. She testified that three of the baggies contained 55.61, 5.37, and 27.98 grams
of cocaine salts. The other baggies contained 54.32 and 2.84 grams of
methamphetamine, and a large plastic bag containing three baggies had a combined
weight of .79 grams of methamphetamine.


                                             3
       Kathryn Novaes, a fingerprint expert, testified that two palm prints found on the
pay-owe sheet excluded defendant. She also examined the fingerprints found on the
blank checks in the briefcase. Some of these prints excluded defendant and for others,
the results were inconclusive.
       Aguiar, who also testified as an expert in the area of possessing cocaine with
intent to sell and possession of methamphetamine with intent to sell, testified that a
usable amount of cocaine was a quarter of a gram, and that a usable amount of
methamphetamine was a tenth of a gram. Based on the quantity of drugs found in the
briefcase and the absence of any drug paraphernalia, Aguiar opined that the drugs were
possessed for sale rather than for personal use.
       Deputy Sheriff Chris Wilson processed defendant’s intake at the Martinez
Detention Facility. When Wilson asked defendant about his gang affiliation, defendant
stated that he was a Norteño from the Rollin’20s set of Contra Costa County. During his
detention at the Martinez Detention Facility, defendant became an informant and
provided extensive information about the Norteños in the facility.
       Defendant, who represented himself at trial, testified in his own behalf. He
admitted that he was a member of the Rollin’20s set and that he was a Norteño. He also
admitted committing a prior robbery. He denied that he was a drug dealer. He also
denied ownership of the briefcase. He said that he got the keys to his mother’s apartment
from Resendez who lived in the same building. He knew that Resendez used drugs but
did not know if he was a dealer.
       Gary Mitchell, a Norteño gang member, testified as an expert regarding the
Norteño gang. He testified that defendant was not a Norteño gang member because he
was not in the gang’s “books.” He also denied that Norteños are obligated to pay taxes to
members in prison.
                                    II. DISCUSSION
1. Gang Participation Offense
       The elements of the gang participation offense are (1) active participation in a
criminal street gang; (2) knowledge that the gang’s members engage in or have engaged


                                             4
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.
Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).)
          In Rodriguez, supra, 55 Cal.4th at page 1128, our California Supreme Court held
that a defendant cannot be convicted of the gang participation offense if he commits a
felony but acts alone. The court reasoned that “with section 186.22(a), the Legislature
sought to punish gang members who acted in concert with other gang members in
committing a felony regardless of whether such felony was gang related.” (Id. at
p. 1138.) The evidence in Rodriguez included the testimony of two gang experts who
opined that robbery was a primary activity of the Norteño gang, and that the attempted
robbery of the victim in the case was committed for the benefit of the gang. (Id. at
p. 1129.) Because there was no evidence that the defendant acted with anyone else, the
court held that the defendant was not guilty of section 186.22(a). (Id. at pp. 1129, 1139.)
          Relying on Rodriguez, defendant contends that the evidence is insufficient to
support his conviction of participating and promoting a criminal street gang because there
was no evidence that he sold drugs in order to willfully further or promote a gang. He
also argues that because the section 186.22 conviction must be reversed, the court must
also strike the five-year enhancement imposed pursuant to section 667, subdivision
(a)(1).
          We review the judgment under the substantial evidence standard. (People v.
Hatch (2000) 22 Cal.4th 260, 272.) Under this standard, we must review “ ‘the whole
record in the light most favorable to the judgment’ and decide ‘whether it discloses
substantial evidence . . . such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.’ ” (Ibid., quoting People v. Johnson (1980) 26 Cal.3d
557, 578.) If the circumstances reasonably justify the verdict, we cannot reverse merely
because a contrary finding might also be reasonably deduced from the circumstances.
(People v. Redmond (1969) 71 Cal.2d 745, 755.) We will reverse only if it “clearly
appear[s] that upon no hypothesis whatever is there sufficient substantial evidence to
support [the judgment].” (Ibid.)


                                               5
       The evidence here is insufficient to show that defendant engaged in drug sales
with any other member of the Norteño gang. While he admitted his gang membership,
and through his notebooks, admitted that drug dealing and gang membership were his
“life,” there was no evidence that he acted with another member of the gang in selling the
cocaine and methamphetamine. Aguiar’s expert testimony that the offenses were
committed for the gang’s benefit did not constitute substantial evidence. (See People v.
Rios (2013) 222 Cal.App.4th 542, 553, 558–560 [insufficient evidence that the defendant
was assisted by other gang members in his possession of a firearm and vehicle theft even
though gang expert testified that the offenses benefitted the gang].) The Attorney
General argues that the fingerprint evidence showing that a person other than defendant
handled the pay-owe sheet and checks found in the briefcase is evidence supporting the
gang participation offense. We disagree. Although the evidence suggests that another
person at some point had access to the pay-owe sheet and blank checks, there is simply
no evidence to suggest that the person was a gang member. “[S]ection 186.22(a) reflects
the Legislature’s carefully structured endeavor to punish active participants for
commission of criminal acts done collectively with gang members. (Rodriguez, supra,
55 Cal.4th at p. 1139.) Because the evidence was insufficient to demonstrate that
defendant acted with others in this instance, the evidence does not support his conviction
for violating section 186.22(a). (Ibid.)
2. Section 667, Subdivision (a)(1) Enhancement
       Defendant argues that we must strike the five-year enhancement imposed pursuant
to section 667, subdivision (a)(1) because without the section 188.22(a) conviction, his
current offenses are not serious felonies. We agree that section 667, subdivision (a)(1)
“applies only if the current conviction itself is also a serious felony.” (People v. Taylor
(2004) 118 Cal.App.4th 11, 22.) Defendant’s convictions for violating Health and Safety
Code sections 11351 and 11378 are not within the group of serious felonies listed in




                                              6
section 1192.7, subdivision (c) which defines serious felonies.2 (Ibid.; see § 1192.7,
subd. (c).) Accordingly, since defendant’s current offenses are not serious felonies, we
must strike the five-year enhancement imposed pursuant to section 667, subdivision
(a)(1).
3. Custody Credits
          Finally, defendant contends that he is entitled to 253 days of additional custody
and conduct credits because the trial court incorrectly calculated the number of days he
served in presentence custody and erred in limiting his conduct credit days to 15 percent
under section 2933.1.3 The Attorney General concedes the error inasmuch as defendant’s
current offenses are not felony offenses listed in section 667.5. (People v. Thomas (1999)
21 Cal.4th 1122, 1127 [limitation on credits applies only to those violent felonies listed in
section 667.5, subdivision (c)].) The parties disagree on whether defendant is entitled to
252 or 253 days. We remand the matter to the trial court for a calculation of the custody
credits to which defendant is entitled.
                                      III. DISPOSITION
          The judgment of conviction of gang participation (count three) is reversed and the
section 667, subdivision (a)(1) enhancement is stricken. The matter is remanded to the
trial court with directions to amend the abstract of judgment accordingly and for a
calculation of custody credits. The trial court is directed to forward the amended abstract
to the Department of Corrections and Rehabilitation. As so modified, the judgment is
affirmed.




          2
         Under section 1192.7, subdivision (c), serious felonies include murder, mayhem,
rape, arson, robbery, kidnapping, and carjacking.
          3
         Section 2933.1, subdivision (a) provides that “[n]otwithstanding any other law,
any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5
shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.”


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                             ______________________
                              Rivera, J.


We concur:


______________________
 Ruvolo, P.J.

______________________
 Reardon, J.




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