Filed 6/27/13 P. v. Guerrero CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047068

                   v.                                                  (Super. Ct. No. 10CF3295)

JOHNNY ALBERT GUERRERO,                                                OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, M. Marc
Kelly, Judge. Affirmed in part and reversed in part.
                   Sylvia Whatley Beckham, under appointment by the Court of Appeal, for

Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Steve Oetting and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff

and Respondent.
                                             *               *               *
              A jury convicted Johnny Albert Guerrero of possession for sale of a
controlled substance (Health & Saf. Code, § 11378), transportation of a controlled
substance (Health & Saf. Code, § 11379, subd. (a)), active participation in a criminal
street gang (Pen. Code, § 186.22, subd. (a), (the “(a) count”); all further undesignated
statutory references are to this code), and possession of methamphetamine. (Health &
Saf. Code § 11377, subd. (a).) Guerrero challenges the sufficiency of the evidence to
establish he actively participated in a criminal street gang. He also argues, and the
Attorney General concedes, his conviction for simple possession of methamphetamine

must be reversed because it was a lesser included offense of his other drug convictions.
As we explain, Guerrero does not succeed in his challenge to the (a) count, and we
therefore affirm the judgment in part, and reverse only with respect to the simple

methamphetamine charge.
                                             I
                       FACTUAL AND PROCEDURAL BACKGROUND
              In December 2010, undercover narcotics enforcement sheriff’s deputies
were conducting surveillance of the Allure Apartments on Chapman Avenue in Orange
because they suspected an important drug cartel member resided there. Guerrero and

Eberardo Diaz pulled into a parking structure adjoining the apartment complex, parked
their car, and entered the apartment building, where they remained for 30 minutes to an
hour. Diaz had been driving the vehicle, and he entered and exited the apartment
building carrying a black bag.
              The undercover officers followed Diaz and Guerrero after they left the
apartment complex and drove to a local fast food restaurant known for drug transactions.

Diaz and Guerrero met a man and a woman in the parking lot and the four entered the



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restaurant together. A City of Orange police officer, unaware of the undercover
surveillance, spotted Diaz’s vehicle and ran a check on the license plate, revealing prior
narcotics convictions. The officer followed the duo when they left the restaurant and
attempted to stop Diaz for illegally tinted taillights and windows.
              Diaz, however, sped off, leading the police on a high-speed chase. The

undercover officers monitored the pursuit and, while following at a distance, retrieved a
black bag they found in the middle of the road. The bag matched the one Diaz had taken
into the apartment building.

              Meanwhile, the officers giving chase managed to pull over and arrest Diaz
and Guerrero. The arresting officers found a powdery residue in the vehicle’s center
console and a glass methamphetamine pipe covered by a napkin on the passenger’s side

floorboard, where Guerrero had been sitting. The officers found Diaz in possession of
more than $2,600 in cash, and Guerrero had divided $640 among three of his pants
pockets. Guerrero’s brother-in-law later testified he gave Guerrero $700 for living

expenses. The black bag that had been discarded in the street contained a loaded
9-millimeter handgun, approximately $31,000 worth of methamphetamine, and a digital
scale. The methamphetamine was packaged in 13 separate baggies.
              Orange County Sheriff’s Deputy Roland Andrade testified as a gang expert
for the prosecution. He explained it is important for narcotics-dealing gangs to claim
certain territory as their domain. This allows the gang to generate revenue from selling
drugs without interference from competitors, and to collect a “tax” from unaffiliated drug
dealers who wish to ply their trade in the gang’s territory. Narcotics deals conducted by
the gang’s members are often a group effort in which a member enlists a fellow gang
member to serve as “backup” for protection and to ensure “nothing goes wrong.”



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              Andrade identified Southside as a Santa Ana gang with recognized
identifying signs and symbols, including the color maroon, and a pattern of committing
certain crimes. In December 2010, Southside’s primary activities consisted of narcotics
sales and firearm possession. Andrade concluded Guerrero was an active Southside gang
member based on his past admissions to police officers that he was a Southside member

and his role in the present case as backup for “another Southside criminal street gang
member,” thereby also implicitly identifying Diaz as a Southside member. Andrade
explained that veteran gang members like the 40-year-old Guerrero were entrusted to

carry out drug deals involving larger quantities of contraband as in this case, rather than
“an entry level gang member who is . . . not typically trusted with that amount of
narcotics, firearms, stuff of that nature.”

              Andrade based his conclusion Diaz was a Southside member on his
repeated contact with Southside members, his prior convictions for selling drugs in
Southside’s territory, and his guilty plea “in this particular case to actively participating

in the South[side] criminal street gang during the course of this incident.” Andrade
acknowledged that Diaz’s previous offenses had been “regular narcotics conviction[s]”
without any gang involvement despite the large sums of drugs and cash involved, but
Andrade concluded that in this case “[h]is conduct had progressed to the active
participant level.”
              Guerrero testified Diaz was not a Southside member. Paroled from prison a
month earlier, Guerrero explained he spent time with Diaz in part because his parole
conditions forbade him from associating with Southside members. He had known Diaz a
long time, and he relied on him for transportation. The night of the incident, he and Diaz




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dropped Diaz’s wife off at home after the three had dinner together, and the two men
planned to pick up Guerrero’s female friend from a party.
               But Diaz stopped at the Allure Apartments to visit a woman with whom he
was having an affair. Guerrero claimed he did not know what was in the black bag Diaz
carried into and out of the apartment building, nor did he know Diaz was selling drugs.

Guerrero explained he wanted to remain in the car while at the Allure Apartments, but
needed to use the restroom inside. Guerrero also provided an innocent explanation for
their visit to the fast food restaurant known for drug deals, because he “wanted to get

some curly fries.” Guerrero urged Diaz to use the drive-through because he spotted the
officer in the parking lot, which alarmed Guerrero because had been drinking alcohol in
violation of his parole conditions. Diaz, however, rejected his suggestion and they

entered the restaurant, but Guerrero did not know or talk to the girl Diaz met there.
               The jury convicted Guerrero as noted above, the trial court in a bifurcated
proceeding found allegations of several prison priors and a prior serious felony

conviction and strike to be true, and the court sentenced Guerrero to a nine-year term. He
now appeals.

                                              II
                                        DISCUSSION
A.     The Evidence Supports Guerrero’s Conviction for Active Gang Participation
               Guerrero challenges the sufficiency of the evidence to support his
conviction for the substantive gang crime defined in section 186.22, subdivision (a). To
be convicted of this offense, a person must (1) actively participate in a criminal street
gang; (2) knowing that its members engage in or have engaged in a pattern of criminal




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gang activity; (3) and “willfully promote[], further[], or assist[] in any felonious criminal
conduct by members of that gang.” (Ibid.) Guerrero only disputes the third element.
              The Attorney General relies on case law that a gang member may be
convicted of active gang participation based on his or her own actions in committing the
underlying felony, since he or she necessarily promotes, furthers, or assists in that
felonious conduct. (See People v. Sanchez (2009) 179 Cal.App.4th 1297, 1308-1309;
People v. Salcido (2007) 149 Cal.App.4th 356, 368; People v. Ngoun (2001) 88
Cal.App.4th 432, 437.) During the pendency of this case, however, the California

Supreme Court decided People v. Rodriguez (2012) 55 Cal.4th 1125, which disapproved
this line of authority. In Rodriguez, the court concluded that “to satisfy the third element,
a defendant must willfully advance, encourage, contribute to, or help members of his

gang commit felonious criminal conduct.” (Id. at p. 1132.) Thus, the court held that
“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.,
italics added.)
              Guerrero asserts the evidence fails to establish Diaz was a gang member,
and therefore Guerrero’s gang conviction cannot stand. True, Diaz’s guilty plea to the
(a) count in this case does not establish he was a gang member because the Legislature
has expressly specified gang membership is not an element of the offense. (§ 186.22,
subd. (i) [“nor is it necessary to prove that the person is a member of the criminal street

gang”].)
                  Guerrero also argues that Diaz’s plea admission to assisting a gang
member (Guerrero) in the present offense shows only that Diaz continued to associate
with the Southside gang, as he had in the past, but association is not membership.



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Guerrero cites numerous examples of this truism, including defense attorney and gang
experts who cannot be deemed members of a gang simply because they associate with
gang members. He speculates that Diaz similarly “could also have [had] a professional
relationship as a drug supplier for gang members from one or more gangs, but not be a
member of any gang.”
              The distinction here, however, is that Andrade explained that when gang
members engage in drug deals, especially in large quantities, they often have “backup” in
the form of fellow gang members. Consequently, the jury reasonably could conclude

Guerrero served in this role for Diaz, and thereby infer Diaz was a fellow Southside
member, which explained Guerrero’s presence accompanying him while they had more
than $30,000 in methamphetamine to distribute.

              Andrade acknowledged that gangs may allow nonmembers to engage in
sales for a “taxed” share of the proceeds, but no evidence suggested a gang would
provide “backup” in such instances. Moreover, the duo’s movements here appear to have

been outside Southside’s Santa Ana territory, rendering even more speculative the notion
Guerrero risked his safety and newfound freedom to “back up” a nonmember. True,
other reasonable conclusions include the possibility Guerrero assisted Diaz solely based
on their friendship, or that Southside had an interest in monitoring large transactions even
extraterritorially to ensure their “tax” cut, without necessarily providing any “backup.”
              But the fact that circumstances may be reconciled with an explanation in

which Diaz was not a Southside member does not warrant reversal. Rather, the standard
of review requires that we affirm the judgment unless under “no hypothesis whatever is
there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d

745, 755.) On appeal, we must view the evidence in the light most favorable to the



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judgment (People v. Elliot (2005) 37 Cal.4th 453, 466), and it is the trier of fact’s
exclusive province to assess witness credibility and to weigh and resolve conflicts in the
evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) Thus, a defendant
attacking the sufficiency of the evidence “bears an enormous burden.” (Ibid.)
              Here, as we have explained, the jury reasonably could conclude Guerrero’s
veteran status called for his participation in the methamphetamine distribution scheme
given the large quantity for sale, and that in doing so he provided “back up” for Diaz.
Based on these factors, the jury reasonably could infer Diaz was “another South[side]

member” as Andrade testified, and we therefore must affirm Guerrero’s conviction for
promoting, furthering, or assisting “in any felonious criminal conduct by members of that
gang.” (§ 186.22, subd. (a).)

B.     The Simple Possession Conviction Must Be Reversed as a Lesser Included Offense
              The Attorney General concedes Guerrero’s conviction for simple
possession must be reversed. We agree. As the Attorney General explains, “Simple
possession is a lesser included offense of possession for sale when the offenses are based
on the same contraband.” Because the jury found Guerrero guilty of possession for sale
of a controlled substance (Health & Saf. Code, § 11378) based on the same conduct as his
conviction for simple possession, the latter must be reversed.




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                                             III
                                       DISPOSITION
              We reverse the conviction for simple possession of methamphetamine
(Health & Saf. Code § 11377, subd. (a)) as a lesser included offense, but affirm the
judgment in all other respects. The trial court is directed to forward a corrected abstract
of judgment to the Department of Corrections and Rehabilitation.




                                                   ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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