(Super. Ct. No.07HF0981) Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed in part, reversed in part, and remanded.
The opinion of the court was delivered by: Aronson, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury found defendants Juan Lopez and Reno Phillip Sifuentes guilty of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); all statutory citations are to the Penal Code unless indicated) with a gang enhancement (§ 186.22, subd. (b)(1)). The jury also convicted both defendants of active gang participation (§ 186.22, subd. (a)) and convicted Sifuentes of methamphetamine possession (Health & Saf. Code, § 11377). Sifuentes admitted suffering several prior convictions.
Sifuentes contends the doctrine of constructive possession cannot be stretched to support the firearm conviction against him, and both defendants challenge the sufficiency of the evidence to support the gang enhancement on the firearm possession charge and their conviction for active gang participation. They also complain the trial court admitted improper opinion testimony from the gang expert. In the published portion of this opinion, we agree the evidence does not support the conclusion Sifuentes had the right to control the firearm discovered near Lopez. Accordingly, Sifuentes's gang enhancement and active gang participation conviction cannot stand because both were based on the firearm possession charge.
We conclude in the unpublished portion of the opinion that substantial evidence supports the gang enhancement for Lopez's possession of the firearm and his active gang participation conviction. We also reject Sifuentes's assertion his trial attorney rendered ineffective assistance of counsel by failing to seek suppression of evidence and severance from Lopez's case. We agree, however, Sifuentes's admissions to prior conviction allegations were invalid because he was not advised of his constitutional rights. We therefore reverse the judgment in part and affirm in all other respects.
I FACTUAL AND PROCEDURAL BACKGROUND
On the morning of May 11, 2007, Costa Mesa police officers checked the registry of a motel near Santa Ana known for drug and prostitution activities. They learned Sifuentes, a convicted felon with an outstanding "no-bail" parole arrest warrant, had rented room 215.
The motel clerk gave the officers a master room key. The officers knocked on room 215's door, identified themselves, stated they had a warrant, and demanded entry. Receiving no response after two attempts, and seeing the window blinds move and hearing movement inside, the officers entered the room. Sifuentes lay on top of the bed nearest the door. He attempted to rise, but one of the officers pushed him down on the bed and ordered him to stay down.
Lopez, also a convicted felon, knelt on the floor on the far side of the second bed, facing the officers. There were two women in the room. One lay naked under the sheets of the bed closest to Lopez. The other stood near the bathroom, wrapped in a towel.
An officer ordered Lopez to raise his hands. Lopez raised only his left hand and looked down at his right, with his arm bent at the elbow. After three demands to raise his right hand, he complied. An officer later found a loaded .40 caliber semiautomatic handgun under the mattress next to Lopez. Investigators did not test the gun for fingerprints or DNA. Officers also found methamphetamine and a pipe in Sifuentes's pocket.
Santa Ana Police Detective Matthew McLeod testified as a gang expert. Based on arrest reports and other police contacts, field interviews, STEP (Street Terrorism Enforcement and Preservation) Act notices,*fn2 and defendants' past association with other gang members, McLeod concluded Sifuentes and Lopez were active participants in Santa Ana's Delhi criminal street gang on the day of their arrest.
McLeod based his opinion on several prior incidents. In 1997, Sifuentes gave a woman a loaded gun and ammunition to hide in her purse when police stopped them in territory claimed by the Delhi gang.*fn3 In 2000, police officers arrested Sifuentes and other members of his group, which included several members of the United Assassin Krew gang (UAK) and another Delhi gang member. Police learned that a member of the group possessed a weapon. McLeod explained UAK allied itself with Delhi and members from UAK often became Delhi gang members. Investigators searched Sifuentes's bedroom on this occasion and found UAK paraphernalia.This incident prompted Santa Ana police officers to issue a STEP notice to Sifuentes.
In 2001, police officers recovered weapons at Sifuentes's home. They also found several pictures of Delhi gang members and other paperwork showing Sifuentes's connection to the gang. Sifuentes's half brother admitted both he and Sifuentes associated with Delhi. Sifuentes also made statements acknowledging he associated with the gang and that a rival gang killed his brother.
In the current case, Sifuentes admitted to investigators he had associated with the Delhi gang in the past, but claimed to have "moved on." McLeod explained Sifuentes had no recent contact with police officers because he was incarcerated "for a significant length of time." McLeod also described Sifuentes's numerous tattoos, some of which indicated gang membership.
McLeod also provided information linking Lopez to the Delhi gang. Lopez resided in territory the Delhi gang claimed and had tattoos indicative of gang affiliation. In July 1994, he was arrested in a stolen car with two Delhi gang members. In 1998, police officers arrested Lopez's companion for a weapons violation, and during the investigation, Lopez admitted he associated with the Delhi gang. In 2006, Lopez and another gang member fled from Santa Ana police, and later was found to be in possession of a blue bandanna, a color associated with Delhi. When contacted on that occasion, Lopez admitted associating with the Delhi gang and the police issued a STEP notice advising Lopez that Delhi was a criminal street gang. Finally, McLeod spoke with Lopez on May 14, 2007, three days after his arrest in the motel room. Lopez admitted his long-standing association with Delhi. They discussed his nicknames or gang monikers and other topics related to the gang. Lopez claimed, however, he had stopped associating with the gang for over a year.
According to McLeod, the Delhi gang numbered about 100 strong, and its primary activities included assaults with firearms, including murder, and juvenile weapons possession. McLeod testified about aspects of the gang subculture, such as the importance of respect within the gang. Because committing crimes enhances a gang member's prestige within the gang, gang members tend to discuss their crimes with their cohorts to gain respect and notoriety.
McLeod also testified that weapons, particularly guns, play a prominent role in the gang subculture. McLeod defined a "gang gun" as a gun that is passed freely among gang members to use in their criminal endeavors. He explained that aside from "certain restrictions," a gang gun is "accessible" to all gang members "[a]t most times." Gang members "frequently and almost are required to share information about the possession of gang guns and where they're kept." A gang member possessing a gun will inform other gang members he has a firearm for two reasons: (1) possession of a gun garners respect within the gang for the possessor, and (2) to alert other gang members who are subject to probation or parole terms that prohibit them from knowingly associating with anyone carrying a gun. Gangs permit their members who are on probation or parole to withdraw from planned activities because gangs are aware of the penal consequences for probationers and parolees who associate with others possessing a firearm. Younger gang members with less to lose will claim ownership of weapons to protect older gang members.
McLeod opined a gang's possession of guns promoted, furthered, or assisted its felonious criminal conduct because possession facilitated its criminal endeavors and enhanced the gang's reputation by "spreading word of mouth . . . that members of this gang are associated or known to possess weaponry and [are] to be feared." McLeod believed a gang member's mere possession of a gun "at the ready" benefits the gang. He admitted, however, he had no information that Lopez kept a gun for his gang, and that no direct evidence tied Lopez's gun to other gang members or that it had been used by the gang.
According to McLeod, a "momo," or motel room in gang parlance, is often used as a meeting place for gang members. The motel where officers found Sifuentes and Lopez, however, was ...