APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge. (Super. Ct. No. BF119690A).
The opinion of the court was delivered by: Cornell, J.
CERTIFIED FOR PUBLICATION
Eusebio Ramon was stopped by a Kern County Sheriff's deputy while driving a stolen vehicle and with an unregistered firearm in his possession. A jury convicted him of (1) receiving a stolen vehicle (Pen. Code, § 496d);*fn1 (2) possession of a firearm by a felon (§ 12021, subd. (a)(1)) (hereafter section 12021(a)(1)); (3) carrying a loaded firearm while a member of a criminal street gang (§ 12031, subd. (a)(2)(C)) (hereafter section 12031(a)(2)(C)); and (4) carrying a loaded firearm for which he was not the registered owner (§ 12031, subd. (a)(2)(F)) (hereafter section 12031(a)(2)(F)). The jury also determined (1) Ramon was a member of a criminal street gang; (2) the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang; and (3) Ramon committed the crimes with the specific intent to promote, further, or assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1); hereafter section 186.22(b)(1).)
Ramon contends that the section 186.22(b)(1) enhancement was not supported by substantial evidence and that he cannot be convicted twice of violating section 12031 for possessing the same firearm. We agree with both of Ramon's contentions. We will vacate the section 186.22(b)(1) enhancement and reverse the section 12031(a)(2)(F) conviction and remand the matter for resentencing.
FACTUAL AND PROCEDURAL SUMMARY
Juana Uribe left her pickup truck in her driveway when she went out of town. When she returned the next day, the truck was missing. She reported the vehicle to the police as stolen. The police found her truck at 5:00 a.m. the following morning. Uribe had never met either Ramon or co-defendant Carlos Martinez, Jr., and neither had permission to take the truck from her driveway.
When the truck was returned to Uribe, she noticed the stereo was missing, there were dents along the side, and there were cigarette burns in the seats. The police showed Uribe a firearm that was found inside the truck. The firearm did not belong to Uribe.
Kern County Deputy Sheriff Lance Grimes was on patrol when he recognized Uribe's truck from the report Uribe had filed. Grimes initiated a traffic stop, but the truck pulled over to the side of the road before Grimes activated his emergency lights. Ramon was driving the truck and Martinez was in the front passenger's seat.
Grimes found a handgun under the driver's seat. A check determined the handgun was not registered. No fingerprints were found on the gun. Neither occupant of the vehicle made any gang signs or attempted to gain possession of the gun. The key with which the vehicle was being operated appeared to be a standard key. There was no apparent damage to the truck's ignition. There were no other cars in the vicinity at the time of the traffic stop.
Kern County Deputy Sheriff Scott Lopez testified as an expert witness on the topic of criminal street gangs. Ramon does not argue on appeal that Lopez was not qualified to testify as an expert witness or that there was insufficient evidence to support the finding that he was a member of the Colonia Bakers criminal street gang. We will, therefore, focus on the portions of the testimony that relate to the issues on appeal.
Lopez testified that the location where Ramon and Martinez were stopped was in the heart of Colonia Bakers gang territory. The territory is controlled through violence and intimidation. The primary activities of the Colonia Bakers gang were identified as (1) sales and possession of narcotics; (2) theft; (3) extortion; (4) burglaries; (5) robberies; (6) car theft; and (7) victim and witness intimidation.
When asked how possession of a stolen truck related to the above crimes, Lopez stated, "Driving a stolen truck within your territory, you could conduct numerous crimes. Any one of those crimes I mentioned you could conduct with a stolen vehicle and then dispose of that vehicle at the drop of a hat and have no ties to it, nor ties to the crime you just committed in that vehicle."
When asked about possession of a firearm, Lopez responded, "It's basically the same answer. You could, while in the stolen vehicle with a -- not a stolen gun -- an unregistered gun, you could conduct any one of those crimes that I mentioned and not have any ties to the gun, not have any ties to the vehicle. And you could dispose of either one of those without having to worry about having ties back to you or the crime that you had just committed." Lopez later testified that the unregistered gun and stolen vehicle could be used to spread fear and intimidation. Therefore, according to Lopez, driving a stolen vehicle and possessing an unregistered firearm provided a benefit to the Colonia Bakers criminal street gang.
When asked a hypothetical question about whether the circumstances involved in this case-two gang members driving a recently stolen vehicle in gang territory with an unregistered firearm in the vehicle-would benefit the Colonia Bakers criminal street gang, Lopez replied, "Yes, sir. There's a huge benefit in furtherance of the gang. They could -- I'm sorry -- they could commit any one of those crimes I mentioned before in furtherance of the gang to benefit the gang; robbery, burglary, carjacking, any one of those crimes that could be committed while in possession of that truck or that firearm could be in furtherance of the Colonia Bakers street gang." Lopez then confirmed that the stolen vehicle and unregistered firearm were the tools the gang needed to commit other crimes to further the gang.
The amended information charged Ramon with (1) receiving stolen property (§ 496d); (2) being a felon in possession of a firearm (§ 12021(a)(1)); (3) possession of a firearm while an active gang member (§ 12031(a)(2)(c)); and (4) carrying a loaded firearm in public for which he was not the registered owner (§ 12031(a)(2)(f)). In addition, each count also alleged each of the following enhancements: (1) The crimes were committed for the benefit of a criminal street gang, in violation of section 186.22(b)(1); (2) Ramon suffered a prior conviction that constituted a strike within the meaning of section 667, subdivisions (b) through (i); (3) Ramon suffered two prior convictions and served prison sentences therefore within the meaning of section 667.5, subdivision (b); and (4) Ramon suffered a prior conviction that constituted a serious felony within the meaning of section 667, subdivision (a).
The jury found Ramon guilty of each charged crime and found that counts 1, 2, and 4 were committed for the benefit of a criminal street gang. After Ramon waived his right to a jury trial, the trial court found each of the remaining enhancements to be true.
The trial court sentenced Ramon to a midterm sentence of two years for receiving a stolen vehicle, which was doubled to four years pursuant to the provisions of section 667, subdivisions (b) through (i). He was sentenced to a consecutive term of 16 months, one-third the midterm sentence after it was doubled pursuant to the provisions of section 667, subdivisions (b) through (i), for possession of a firearm while a felon. Ramon's sentence for receiving a stolen vehicle was increased by three years pursuant to section 186.22(b)(1)(A), five years pursuant to section 667, subdivision (a), and one year pursuant to section 667.5, subdivision (b). His sentence for possession of a firearm was increased by one year (one-third the ...