IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
May 27, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RENO PHILLIP SIFUENTES AND JUAN LOPEZ, DEFENDANTS AND APPELLANTS.
(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We conclude in the unpublished portion of the opinion that substantial evidence supports the gang enhancement for Lopez's possession of the firearm and his active gang participation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 not located in territory the Delhi gang claimed.
Following a trial in July 2008, a jury convicted defendants of the crimes and enhancements listed above. Sifuentes admitted he had suffered a 1992 robbery conviction, triggering the Three Strikes law (§§ 667, subds. (d) & (e)(1); § 1170.12, subds. (b) & (c)(1)) and qualifying as a serious felony within the meaning of section 667, subdivision (a)(1). He also admitted serving separate prison terms for a 1998 second degree burglary conviction and a 2001 conviction for possession of a firearm by a felon. (§ 667, subd. (b).) In October 2008, the trial court sentenced Sifuentes to 12 years in prison; Lopez received five years.
A. No Substantial Evidence Supports Sifuentes's Firearm Possession Conviction
Sifuentes challenges the sufficiency of the evidence to support his conviction for being a felon in possession of a firearm. Our review of this issue is limited to determining whether substantial evidence supports the verdict. Substantial evidence is defined as evidence that is reasonable, credible, and of solid value. (People v. Elliott (2005) 37 Cal.4th 453, 466.) A reviewing court must accept logical inferences the jury might have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) "'A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' [Citation.]" (People v. Cluff (2001) 87 Cal.App.4th 991, 1002.)
The prosecution obtained Sifuentes' conviction for felon in possession of a gun (§ 12021 (count 2)) based on the doctrine of constructive possession.*fn4 To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person. (People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084; People v. Mejia (1999) 72 Cal.App.4th 1269, 1272 [defendant need not physically have the weapon on his person; constructive possession established where a person knowingly exercised dominion and control over an item].) Possession may be shared with others. (People v. Neese (1969) 272 Cal.App.2d 235, 245.) But mere proximity to the weapon, standing alone, is not sufficient evidence of possession. (People v. Land (1994) 30 Cal.App.4th 220, 223-224.)
Sifuentes contends the prosecution failed to produce substantial evidence he either knew about the gun found under the mattress or that Sifuentes had the right to control it. We agree no substantial evidence shows Sifuentes had the right to control the firearm, even if Sifuentes knew a weapon was in the room.
The prosecution's gang expert did not testify any gun possessed by a gang member automatically constitutes a gang gun to be shared with all other gang members. Rather, the gang expert explained gangs use gang guns offensively and defensively to commit crimes and assault their rivals. Under those circumstances, firearms are freely shared and therefore gang members will know who among them has possession of these weapons. There was no evidence, however, the gun officers discovered had ever been used in this manner.
Even assuming the firearm Lopez possessed fell into the gang gun category, no evidence showed Sifuentes had the right to control the weapon. The gang expert did not testify all gang members always have the right to control a gang gun, whether kept in a safe place or held by another gang member. Rather, the expert testified a gang gun was "accessible" to gang members "at most times," but did not elaborate. When asked if "every single [gang] member" could use the gang gun, the expert responded "certain restrictions" applied, but failed to describe the nature of those restrictions.*fn5 Based on the expert's testimony, it also may be that gang members have no right to control a firearm held by a compatriot where no offensive or defensive actions are undertaken. That was the case here, where Sifuentes and Lopez simply occupied a motel room with two females. There was no evidence defendants had used or were about to use the gun offensively or defensively. Consequently, there is no basis to conclude Sifuentes had the right to control the weapon.
The Attorney General argues the jury could have relied on information that in 1997 Sifuentes gave his female companion a firearm to hide in her purse, and she later told an investigator that Sifuentes always carried a weapon. McLeod testified about this incident based on a 1997 police report, which reported the female companion's statement and that Sifuentes had been arrested on a weapons violation while associating with another Delhi gang member. Although the trial court overruled Sifuentes's hearsay objection, the court did not admit the female companion's statement for its truth, but as part of the basis for the expert's opinion Sifuentes was an active participant in the Delhi gang. (See Scott, supra, 29 Cal.4th at p. 823 [expert witness may base an opinion on reliable hearsay].)*fn6 We therefore may not consider the hearsay statements of Sifuentes's female companion in assessing whether Sifuentes constructively possessed the firearm Lopez attempted to hide.
The Attorney General also claims the expert testified the gun was "jointly possessed," but no evidence supports this assertion. The prosecutor attempted to ask the gang expert in a hypothetical question whether "male number one," a veiled reference in the hypothetical to Sifuentes, "would be aware of the presence of the gun in that motel room?" The trial court, however, sustained objections to this question. The prosecutor responded by narrowing the focus of his inquiry "to whether the offense of possession of a firearm by a felon was committed for the benefit of, at the direction of, or in association with a criminal street gang?" This exchange dealt solely with the "benefit" element of the gang enhancement. The expert answered that "possession of the firearm was, in fact, committed for . . . the benefit of and in association with that criminal street gang." The prosecutor did not elicit, and the expert did not testify that a hypothetical individual in Sifuentes's position would have constructively possessed the firearm discovered under the mattress.
The prosecutor failed to elicit from the expert any substantial evidence Sifuentes had the right to control the firearm. The expert did not testify all gang members had the right to control communal gang guns, assuming this firearm fell into that category. Rather, as discussed above, he testified certain restrictions applied concerning "access" to a gang gun and did not explain these restrictions or whether he equated access with a right to control.*fn7 Nor did the expert link Sifuentes to the particular firearm found next to Lopez.
Thus, the evidence falls far short of providing substantial evidence Sifuentes had the right to control the firearm in this case. "'[T]he law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based.'" (People v. Gardeley (1996) 14 Cal.4th 605, 618.) The possibility Sifuentes might have had the right to exercise control over the gun does not by itself provide a basis to infer he had the right to control it. (See People v. Moore (2011) 51 Cal.4th 386, 406 ["That an event could have happened, however, does not by itself support a deduction or inference it did happen" (original italics)].) Even assuming the expert implied Sifuentes could exercise control over the firearm, no evidentiary basis existed to support this conclusion. Consequently, implying a right of control in the expert's opinion would do "nothing more than inform the jury how [the expert] believed the case should be decided." (People v. Killebrew (2002) 103 Cal.App.4th 644, 658 (Killebrew).)
In sum, no substantial evidence supports Sifuentes's conviction for possession of a firearm by a felon (count 2). Because the gang enhancement under section 186.22, subdivision (b), attached solely to the gun possession charge, we must reverse the jury's finding Sifuentes possessed a firearm for the benefit of a criminal street gang. And we must also reverse Sifuentes's conviction for active gang participation, which requires proof, among other elements, that the person "'"willfully promote[d], further[ed] or assist[ed] in any felonious criminal conduct by members of that gang." [Citation.]'" (People v. Lamas (2007) 42 Cal.4th 516, 523 (Lamas).) To prove this element, the prosecutor relied on Sifuentes's alleged firearm possession. Consequently, reversal of Sifuentes's gun possession conviction also requires reversal of Sifuentes's active gang participation conviction.
B. Substantial Evidence Supports Lopez's Gang Enhancement
Lopez challenges the sufficiency of the evidence to support the jury's true finding on the gang enhancement (§ 186.22, subd. (b)(1)) for his felon-in-possession firearm conviction. His challenge fails, as we explain. We review a jury's findings on gang enhancements for substantial evidence. (People v. Augborne (2002) 104 Cal.App.4th 362, 371 (Augborne).) Evidentiary conflicts or credibility issues are the sole domain of the jury to resolve. (Ibid.) Viewing the evidence in the light most favorable to the judgment, we will not reverse the jury's findings unless "'"upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We may not substitute our judgment for the jury's determination if supported by substantial evidence. "If the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding. [Citations.]" (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. omitted (Ceja).) "[I]t is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt." (Ibid., original italics.)
People v. Albillar (2010) 51 Cal.4th 47 (Albillar) illustrates the application of these appellate principles. There, the jury found the gang enhancement applied where two brothers and a cousin raped a 15-year-old acquaintance. The jury rejected the argument defendants committed the offense for "'themselves or their personal interests'" and that the perpetrators' active gang membership "'was an irrelevancy'" and "'had nothing to do'" with the crime. (Id. at pp. 63-64.) The Supreme Court held the jury did not have to "presume" that personal reasons, including family allegiance, "necessarily predominate over gang affiliation" in motivating the offense. (Id. at p. 62.) Instead, "the jury, which was presented with the competing inferences, was entitled to credit the evidence that the attack on Amanda M. was gang related, not family related." (Ibid.)
In Albillar, the Supreme Court held sufficient evidence supported the jury's true finding on the gang enhancement (§ 186.22, subd. (b)(1)) because the defendants acted "in association" together as gang members, relying on their common gang membership to commit the rape without interference and without fear their accomplices or the victim would contact the police. (Albillar, supra, 51 Cal.4th at p. 62.) The Supreme Court also found an independent basis for the gang enhancement because the jury reasonably could conclude the defendants committed the crime for the benefit of their gang, based on expert testimony that the "'violent brutal attack'" on the victim benefitted the defendants' gang by "enhancing its reputation for viciousness . . . ." (Id. at p. 63.)
As the Supreme Court explained, the gang enhancement applies only if the underlying criminal conduct is gang related. (Albillar, supra, 51 Cal.4th at p. 60.) In other words, the enhancement "requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang." (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales), italics omitted.) Specifically, subdivision (b)(1)(A) of section 186.22 provides that "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished . . . [¶] . . . by an additional term of two, three, or four years at the court's discretion."
The statute does not require, as Lopez argues, a specific intent to promote, further, or assist in criminal conduct apart from the criminal conduct for which the gang member defendant is convicted. (Albillar, supra, 51 Cal.4th at p. 66.) Contrary federal cases holding the defendant must harbor a specific intent to facilitate other criminal conduct by gang members (Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, 1079; Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103) misinterpret state law (Albillar, at p. 66). Consequently, there is no merit to Lopez's challenge that the prosecution failed to present substantial evidence he possessed the gun at the motel to commit other planned gang offenses. No such showing is required. (Ibid.; see, e.g., People v. Vazquez (2009) 178 Cal.App.4th 347, 353-355; People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero (2006) 140 Cal.App.4th 15, 20.)
Although the prosecutor was not required to show Lopez used or had imminent plans to use the gun to commit a crime on behalf of his gang, the jury reasonably could conclude he possessed the weapon to benefit his gang and not just for personal purposes. As the prosecution's gang expert explained, "mere possession" of a gun "itself . . . benefit[s] a criminal street gang" because the weapon is "at the ready" for gang purposes. To use a martial example, a legitimate military force "benefits" when a soldier is armed because he or she can be deployed for tasks unarmed personnel cannot accomplish. Even when the soldier is not engaged on a particular mission, the armed soldier counts as a resource because he or she stands ready for deployment and, in any event, provides a measure of defensive security though not presently engaged in action. The soldier's gun benefits his unit no less when, in a militia, he supplies the weapon, but sometimes uses it for personal reasons.
Lopez relies on In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.). There, a police officer detained a minor for failing to stop at a traffic light while riding a bicycle. The officer found a concealed knife on the minor, who explained he carried the knife for protection against the "Southerners," a local gang. The minor later admitted he was affiliated with a rival gang. The prosecution's gang expert testified the minor's possession of the knife benefitted his gang because members would use the knife for protection or to assault rival gangs. The appellate court reversed the true finding on the enhancement, explaining the prosecution presented no evidence to support the expert's general opinion regarding gangs and her opinion the defendant met the criteria to apply the enhancement. The court explained, "The prosecution did not present any evidence that the minor was in a gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense." (Frank S., at p. 1199.) The court emphasized the evidence showed no more than the minor had affiliated with the gang, and "membership alone does not prove a specific intent to use the knife to promote, further, or assist in criminal conduct by gang members." ( Ibid.) The court concluded no substantial evidence supported the expert's opinion the minor acted with the requisite specific intent. ( Ibid.)
Frank S. is distinguishable. First, the prosecution there presented no evidence the minor "had any reason to expect to use the knife in a gang-related offense." (Frank S., supra, 141 Cal.App.4th at p. 1199.) While nothing in Frank S. disclosed the primary activities of the "Nortenos" gang the minor affiliated with (id. at p. 1195), the evidence here showed Delhi's primary activities included crimes requiring a weapon. Indeed, Delhi's primary activities consisted of firearm offenses, specifically firearm assaults, including murder and juvenile possession. The fact that firearms were a defining feature of Delhi's primary activities reasonably weighed in the jury's determination whether Lopez possessed his firearm for Delhi's benefit.
Second, the court in Frank S. described the minor as a gang "affiliat[e]" (Frank S., supra, 141 Cal.App.4th at p. 1199), whereas the prosecution here established Lopez's long-term commitment to Delhi as an active gang participant. In Albillar, the Supreme Court observed it "strain[ed] credulity" (Albillar, supra, 51 Cal.4th at p. 63) to argue as the defendants did that their gang "relationship and commitment" was "'superficial,'" given their gang tattoos and that the apartment they shared was "'saturated' with gang paraphernalia" (id. at p. 62.) In similar fashion, the jury here could conclude Lopez harbored a strong commitment to the Delhi criminal street gang given his tattoos, his possession of Delhi paraphernalia, his arrests and association with other Delhi gang members engaged in criminal activity, and his admitted participation in the gang spanning more than a decade. The evidence concerning Lopez's active gang participation was pertinent for the jury to assess whether he possessed the gun for the benefit of his gang.
Lopez's longtime Delhi commitment was particularly relevant. The gang expert explained respect is "the highest commodity in terms of the . . . criminal street gang subculture," and possession of a weapon elevates one's status because "it signifies that . . . person. . . is capable of inflicting severe bodily injury on rival gang members, community members, [and] the police . . . ." Accordingly, McLeod explained guns are crucial in the gang mindset because they serve as "the instantaneous way to gain that fear and respect . . . ." The evidence thus established a powerful gang-related motive for Lopez to possess the weapon, namely, to enhance his and his gang's reputation.
Sifuentes's presence also distinguishes Frank S. (See Morales, supra, 112 Cal.App.4th at p. 1198 ["the typical close case is one in which one gang member, acting alone, commits a crime"].) No evidence suggests Lopez kept his gun in a bag or otherwise concealed from Sifuentes. The jury reasonably could infer from Lopez's attempt to hide the gun that it was visible in the room before the police knocked. In light of Delhi's primary activities and the expert testimony concerning the importance that gangs ascribe to guns, the jury reasonably could conclude that revealing a firearm made little sense if one did not expect to hold it for the gang's benefit. As noted above, McLeod explained gun possession by itself benefits a gang because it is "at the ready" for use against rivals and more generally as "an immediate tool which can be accessed by any member of that gang" and for "defending the members of that gang or committing other crimes throughout the community." Although the prosecution failed to elicit testimony from McLeod on the right to control element for constructive possession, specifically the circumstances under which a gang member has the right to control a firearm possessed by another gang member, nothing prevented the jury from concluding Lopez's disclosure of the weapon made it likely he possessed the gun for his gang's benefit.
Thus, substantial evidence demonstrated that Lopez was an active Delhi participant with a longstanding commitment to a gang whose primary activities involved using guns to commit crimes like murder and assault with a firearm. With this evidence in mind, the jury reasonably could infer that Lopez possessed the firearm to enhance his and his gang's reputation according to gangland mores, and that he intended his possession of the gun to benefit his gang. While direct evidence of intent is often lacking, it may be shown by circumstantial evidence (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946), and there is no basis here for us to second-guess the jury's determination. Nothing in the statutory language requires that the gang member must actually succeed in benefitting his or her gang or in furthering its interests. (§ 186.22, subd. (b)(1).) It is enough here that the jury reasonably could conclude Lopez intended his possession to benefit or further his gang's interests. The evidence therefore supports the gang enhancement for Lopez's gun possession.
Lopez also contends McLeod's testimony ran afoul of Killebrew, supra, 103 Cal.App.4th 644 and its progeny, but McLeod did not testify Lopez or any specific individual had specific knowledge or a specific intent. (Id. at p. 658; see People v. Gonzalez (2006) 38 Cal.4th 932, 946 (Gonzalez) [construing Killebrew "as merely 'prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial'"].) The claim therefore fails.
C. Substantial Evidence Supports Lopez's Conviction for Active Gang Participation
Lopez recycles his arguments against the gang enhancement to challenge the sufficiency of the evidence to support his conviction for active gang participation. (§ 186.22, subd. (a).) He asserts: "For the same reasons [allegedly undermining the gang enhancement], the evidence presented at trial was legally insufficient to support [his] street terrorism conviction."
As with the gang enhancement, we review the substantive gang conviction for substantial evidence (Augborne, supra, 104 Cal.App.4th at p. 371), and we may not second-guess the jury's resolution of contested factual issues (ibid.), nor substitute our conclusion for the jury's where supported by substantial evidence (Ceja, supra, 4 Cal.4th at p. 1139.)
Section 186.22, subdivision (a), provides: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years." As explained by the Supreme Court, "The substantive offense defined in section 186.22[, subdivision] (a) has three elements. Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, is the first element . . . . The second element is 'knowledge that [the gang's] members engage in or have engaged in a pattern of criminal gang activity,'[*fn8 ] and the third element is that the person 'willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.'" (Lamas, supra, 42 Cal.4th at p. 523.)
Lopez aims his challenge at the third element. Relying on Killebrew and similar cases, he asserts there was "no properly admitted evidence . . . that he possessed the gun 'to promote, further, or assist the gang in its felonious conduct' in violation of [section 186.22,] subdivision (a). Throw out the improper gang expert opinion testimony and there is, again, no evidence this was a gang-related crime or that [he] had participated in any gang-related crime . . . . The arresting officers did not testify that they believed the two defendants were gang members; that they were involved in gang-related activities; or that the crime of possession of a firearm even took place in gang territory. Nor did either defendant admit to possessing the gun for some gang-related purpose. Not every weapon possessed by every gang member is possessed for the purpose of promoting or assisting the gang in its criminal endeavors. [Citations.]"
Lopez's challenge falters for two reasons. First, Killebrew and its progeny do not provide authority to "[t]hrow out" McLeod's expert opinion testimony. The prosecution did not violate Killebrew because McLeod did not offer an opinion on a specific individual's knowledge or intent. (Gonzalez, supra, 38 Cal.4th at pp. 946-947.) The absence of testimony by the arresting officers is irrelevant. There was no evidence those officers believed Lopez possessed his firearm for personal reasons, rather than gang purposes. Moreover, their initial impressions would have no bearing on what subsequent investigation revealed, including that Lopez was a long-standing member of the Delhi criminal street gang. In any event, Lopez's challenge also fails because the Supreme Court has concluded the street terrorism offense does not require gang-related felonious criminal conduct. (Albillar, supra, 51 Cal.4th at p. 59; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, the prosecution was not required to show Lopez's possession of the firearm was gang-related for purposes of proving the street terrorism offense.
D. Sifuentes's Ineffective Assistance of Counsel Claim Fails
Sifuentes attacks his conviction for possession of methamphetamine by arguing his trial counsel provided ineffective assistance in failing to (1) bring a suppression motion challenging the officers' entry into the motel room and (2) failing to seek a severance from Lopez's case. To prevail on a claim of ineffective assistance, a defendant must demonstrate: (1) defense counsel's representation fell below an objective standard of reasonableness; and (2) but for counsel's error, there is a reasonable probability the result would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Reasonable probability is defined as "a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
Taking the suppression issue first, the evidence at trial showed that the officers went to the motel, reviewed the register, and ran a computer check on the names listed. They determined room 215 was registered to Sifuentes, who had an outstanding arrest warrant for a parole violation. After obtaining a master key, the officers approached the room, knocked on the door and announced their presence, stating they had an arrest warrant, and demanded entry. (§ 844.) Receiving no response and hearing movement inside the room, they used the master key to enter the room. (See People v. Miller (1961) 193 Cal.App.2d 838, 841 [officers used passkey to open door to hotel room where they reasonably believed person named in warrant resided].)
Sifuentes complains the police officers lacked a legally sufficient basis to believe he was in the room. He asserts: "[P]olice had only weak circumstantial evidence that [he] might be in the room [because ]they did not ask the clerk whether he had seen appellant enter or leave the room, or obtain a description of appellant and compare it to the clerk's observations. There is no record of the time appellant rented the room."
Generally, where the record on appeal sheds no light on why counsel acted or failed to act in a particular manner, a claim of ineffective assistance must be rejected unless counsel was asked for an explanation and failed to provide one, or no satisfactory explanation for counsel's omission could exist. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Counsel was not asked for an explanation, but he reasonably may have concluded a motion to suppress was unlikely to succeed. An arrest warrant founded on probable cause carries with it the authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. (Payton v. New York (1980) 445 U.S. 573, 602-603; see § 3060 [parole authority may suspend or revoke a parole and order a parolee returned to prison based on written order for arrest and return of parolee]; § 3061 [duty of peace officer to execute order].)
Here, the motel manager testified the motel required identification and a credit card to rent a room. Given Sifuentes was the registered guest in room 215, it was reasonable to assume he was inside the room when officers twice announced their presence and purpose, and the occupants responded by moving around the room, but did not open the door. Moreover, Sifuentes had a minimized expectation of privacy because of his status as a parolee and the existence of a warrant authorizing his arrest. (See People v. Lewis (1999) 74 Cal.App.4th 662, 671 [parolee subject to warrantless search condition had no reasonable expectation of privacy, even at home].) We reject defendant's claim trial counsel was ineffective for failing to move to suppress.
Sifuentes also complains counsel was ineffective for failing to seek severance because he and Lopez had conflicting defenses. Given that we must reverse Sifuentes's active gang participation and gun possession convictions for lack of evidence, there is no reason for us to reach his severance claim. Sifuentes does not claim his methamphetamine conviction in this proceeding stemmed in any manner from his joint trial with Lopez, who was not charged with methamphetamine possession. The Supreme Court has explained that "'to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.'" (People v. Coffman (2004) 34 Cal.4th 1, 41, original italics.) Here, no conflict remains because Lopez was not charged with methamphetamine possession. Because there was no possibility of conflicting defenses on a count charged only against Sifuentes, we do not address Sifuentes's severance-based ineffective assistance of counsel claim.
E. Sifuentes's Admissions to Prior Conviction Allegations Not Intelligent or Voluntary As noted above, the information alleged Sifuentes suffered a 1992 robbery conviction triggering the Three Strikes law and qualifying as a serious felony. It also alleged two section 667.5, subdivision (b), priors. Before trial, the court granted counsel's motion to bifurcate the trial on the priors from the remaining charges. Counsel stated his client intended to admit the allegations. The trial court did not obtain defendant's waiver of a jury trial at this point, however.
After the jury returned its verdict and the court discharged the jurors, the court solicited Sifuentes's admissions to the prior conviction allegations.*fn9 The court did not advise Sifuentes of his constitutional rights, nor obtain an express waiver of rights.
Before a trial court may accept a defendant's admission of prior felony convictions, the court must advise the accused of the right against compulsory self-incrimination, the right to confrontation, and the right to a jury trial. (People v. Mosby (2004) 33 Cal.4th 353, 359-360 (Mosby); Boykin v. Alabama (1969) 395 U.S. 238, 243; In re Tahl (1969) 1 Cal.3d 122, 132; In re Yurko (1974) 10 Cal.3d 857.) The trial court also must advise the accused of the penal consequences of admitting a prior conviction. "[A]n accused, prior to the time the court accepts his admission of an allegation of a prior criminal conviction or convictions, is entitled to be advised: (1) that he may thereby be adjudged an habitual criminal . . . ; (2) of the precise increase in the term or terms which might be imposed, if any . . . ; and (3) of the effect of any increased term or terms of imprisonment on the accused's eligibility for parole." (In re Yurko, at p. 864.)
This is a silent-record case. "Truly silent-record cases are those that show no express advisement and waiver of the Boykin-Tahl rights before a defendant's admission of a prior conviction." (Mosby, supra, 33 Cal.4th at p. 361.) These cases typically arise when a "jury trial on a substantive offense preceded the defendant['s] admissions of prior convictions. [D]efendants were not told on the record of their right to trial to determine the truth of a prior conviction allegation. Nor did they expressly waive their right to trial. In such cases, in which the defendant was not advised of the right to have a trial on an alleged prior conviction, [the appellate court] cannot infer that in admitting the prior the defendant has knowingly and intelligently waived that right as well as the associated rights to silence and confrontation of witnesses." (Id. at p. 362; People v. Johnson (1993) 15 Cal.App.4th 169 [absent any advisement of rights, it is "impossible to determine" whether the defendant "not only was aware of these rights, but also was prepared to waive them as a condition to admitting his prior offenses"].)
The Attorney General concedes the trial court did not advise Sifuentes of his rights and the consequences of his plea and he "cannot find evidence in the record that [he] was advised of his right to a jury trial on the priors," but maintains "a combination of four factors show that Sifuentes's admissions were voluntary and intelligent. First, Sifuentes's lawyer indicated before trial his client's intent to admit the priors. . . . Second, the admissions were taken after the verdict. Thus, Sifuentes sat through trial and exercised his rights in the trial. Third, Sifuentes entered his admissions after trial and after discussing it with his lawyer. Fourth, Sifuentes had an extensive criminal history that indicated he was very familiar with the criminal-justice system. These factors indicate that Sifuentes knew about his rights and voluntarily entered the admissions."
Under Mosby, we may not infer the admissions were voluntary and intelligent under the totality of the circumstances. Mosby's recognition that a defendant's prior experience with the criminal justice system is relevant to the question whether he knowingly waived constitutional rights comes into play only in incomplete advisement cases. The error compels reversal of the prior conviction findings. (Mosby, supra, 33 Cal.4th at p. 362; People v. Little (2004) 115 Cal.App.4th 776, 779-780.) Retrial of the prior conviction findings is permissible. (Monge v. California (1998) 524 U.S. 721; People v. Monge (1997) 16 Cal.4th 826; People v. Fielder (2004) 114 Cal.App.4th 1221, 1234.)
The judgment as to Lopez is affirmed. Sifuentes's convictions for felon-in-possession of a firearm (§ 12021, subd. (a)(1)) and for active gang participation (§ 186.22, subd. (a)) are reversed, as is the gang enhancement on his firearm conviction (§ 186.22, subd. (b)(1)). We reverse Sifuentes's sentence and remand the cause for redetermination of the prior conviction allegations against him. In all other respects, the judgment is affirmed.
WE CONCUR: FYBEL, J. IKOLA, J.