Order File Date January 15, 2014
Monterey County Superior Court Nos.: SS102818A and SS111533C The Honorable Pamela L. Butler Judge.
Attorney for Defendant and Appellant Jose Rios: Patrick McKenna under appointment by the Court of Appeal for Appellant
Attorneys for Plaintiff and Respondent The People: Kamala D. Harris, Attorney General Dane R. Gillette, Chief Assistant Attorney General Gerald A. Engler, Senior Assistant Attorney General Rene A. Chacon, Supervising Deputy Attorney General Linda M. Murphy, Deputy Attorney General.
ORDER MODIFYING OPINION AND DENYING REHEARING
It is ordered that the opinion filed herein on December 20, 2013, be modified as follows:
1. On page 21, in the first full paragraph, the second sentence, which states:
The Attorney General does not address the legal question whether a lone actor may be subject to the section 186.22(b)(1) gang enhancement.
Is deleted and the following sentence, which includes the addition of footnote 8, is inserted in its place:
The Attorney General responds that “Rodriguez’s holding applies solely to the substantive crime of street terrorism” and does not apply to enhancements.8
2. Add the following to page 21 as footnote 8, which will require renumbering of all subsequent footnotes:
8 The Attorney General placed this argument in a section of its brief that responded to alleged errors in the jury instructions, under the subheading “The trial court properly instructed the jury, ” rather than placing it under its own separate heading. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [“Each brief must:... [s]tate each point under a separate heading or subheading summarizing the point”]; Eisenberg, et al. Cal. Practice Guide: Civil Writs and Appeals (The Rutter Group 2013) ¶¶ 9:150-9:152, pp. 9-46 to 9-47 [placing an issue within another discussion heading runs the risk that the court will not address it].)
The petition for rehearing is denied.
There is no change in the judgment.
Defendant Jose Rios was convicted by jury of one count of carrying a loaded firearm in a vehicle (Pen. Code, § 12031, subd. (a)(1); count 1), one count of vehicle theft (Veh. Code, § 10851, subd. (a); count 3), and one count of street terrorism (§ 186.22, subd. (a); count 4). The jury also found true enhancement allegations that defendant was not the registered owner of the firearm (§ 12031, subd. (a)(2)(F); enhancement to count 1) and that he carried the loaded firearm and committed the vehicle theft for the benefit of a criminal street gang (§ 186.22, subd. (b), enhancements to counts 1 and 3). The jury was unable to reach a verdict on the allegation in count 2 that defendant carried a concealed firearm in a vehicle within the meaning of section 12025, subdivision (a)(3); the court declared a mistrial on that count.
Based on the Supreme Court’s holding in People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez) that a person who acts alone cannot be convicted of street terrorism (§ 186.22, subd. (a)), defendant argues that his conviction on the street terrorism count must be reversed since there was no evidence he acted with other gang members. We agree and accept the Attorney General’s concession on this issue. Defendant contends further that Rodriguez also applies to gang enhancements (§ 186.22, subd. (b)) and that the true findings on the gang enhancements must be reversed because there was no evidence that he committed the offenses in counts 1 and 3 with other gang members. We will conclude that the holding in Rodriguez--that a lone actor cannot violate section 186.22, subdivision (a)-does not apply to the separate enhancement set forth in section 186.22, subdivision (b), which enhances punishment when a defendant is found, among other things, to have acted with the specific intent to further, promote or assist in criminal conduct by gang members. But we agree with defendant’s contention that there was insufficient evidence to support the gang enhancements (§ 186.22, subd. (b)(1)) in this case. In light of our conclusions, we need not address defendant’s instructional error claims. Defendant also contends that the court erred when it imposed a second restitution fine (§ 1202.4), a second court facilities assessment (Gov. Code, § 70373) a second court security fee (§ 1465.8, subd. (a)(1)), and when it calculated the amount of the parole revocation restitution fine (§ 1202.45). We agree that there were errors regarding those fines and fees. In light of our conclusions, we will strike the conviction for street terrorism (§ 186.22, subd. (a); count 4) and the true findings on the gang enhancements (§ 186.22, subd. (b)(1); counts 1 and 3), reverse the judgment, and remand to the trial court for resentencing and to correct the errors in the fines and fees.
Testimony of Maria Garcia & Jacqueline Andrade
In December 2010, Maria Garcia drove her Chrysler New Yorker with Idaho plates (the Chrysler) from Sun Valley, Idaho, to Sacramento, California, where her son was attending college. Garcia’s close family friend, Jacqueline Andrade, met Garcia in Sacramento. Andrade needed a car and was considering buying the Chrysler. Garcia gave Andrade permission to take the car to her home in Salinas for a “test drive” and to show it to her (Andrade’s) husband.
Before giving the car to Andrade, Garcia removed her personal belongings from the car. She left the owner’s manual, registration card, and identification cards that belonged to her son, Jose Ramirez, in the glove box. She did not leave any clothing in the passenger compartment, but may have left some of her son’s clothing in the trunk.
Andrade drove the car to Salinas on December 24, 2010. The following day, Andrade hosted a Christmas party at her house. There were about 30 people at the party; Andrade knew only 12 or 13 of them; the rest were friends of her guests. Before the party, Andrade washed the Chrysler; she also vacuumed the interior of the car, including under the seats. She testified that there was nothing in the passenger compartment except for photos and paperwork in the glove box.
Andrade’s party lasted until 4:00 a.m. on December 26, 2010. After awakening around noon that day, Andrade discovered that the Chrysler and the car keys were gone. She had left the car keys on her kitchen counter and last saw the car around 4:30 p.m. the day before. Andrade called the police and reported that the Chrysler had been stolen.
Testimony of Officer Lopez & Maria Magana
At 11:30 p.m. on December 25, 2010, California Highway Patrol (CHP) Officer Pablo Lopez and his partner, Officer Hamilton, were traveling on Williams Road in Salinas in a marked car when they saw the Chrysler at the intersection of Williams Road and Alma Avenue with a cracked windshield. Since a cracked windshield is a Vehicle Code violation, the officers decided to make a traffic stop. Lopez testified that defendant, who was wearing a black baseball cap, was driving the car. Neither Andrade nor Garcia knew defendant. They did not give defendant permission to drive the Chrysler.
The officers followed the Chrysler for approximately 10 blocks along a circuitous route that suggests defendant was trying to evade the officers. Along the way, defendant made a wide right turn onto northbound First Avenue and drove partly in the southbound lane, on the wrong side of the road. Officer Hamilton was driving; as soon as he turned on his emergency lights, defendant turned right onto Saint Joseph Circle, a cul-de-sac. Defendant made a U-turn at the end of the cul-de-sac, parked in front of 11 Saint Joseph Circle, and turned off the car’s headlights. Defendant then pulled the car into the driveway of 6 Saint Joseph Circle. He stepped out of the car and walked toward the front door of the house. Just before he got to the door, defendant turned and walked toward First Avenue, where the officers had parked their car.
The officers approached defendant and told him they were stopping him for the cracked windshield and driving on the wrong side of the road. Defendant said he was 18 and they could not search him. Defendant gave the officers a false name (Juan Rios) and a false date of birth. Defendant told the officers he did not have a driver’s license or identification. Officer Lopez ran the information defendant gave him through dispatch and was told that no driver’s license had been issued to that person.
When Officer Lopez asked defendant why he was driving so recklessly, defendant denied that he was driving the car, claiming instead that his girlfriend was driving. Officer Lopez had not seen anyone else in the car or exiting the car, so he asked defendant to provide his girlfriend’s name and her whereabouts. Defendant did not give the officer his girlfriend’s name, but said she was at her home at 6 Saint Joseph Circle.
Officer Lopez knocked on the door of 6 Saint Joseph Circle and spoke to Maria Magana. He asked Magana if she had a daughter who had just gotten home who had a boyfriend named “Juan Rios.” Magana said that there was no girl who lived there who had a boyfriend and that the Chrysler did not belong to anyone who lived there. At trial, Magana testified that she had a daughter who was a student at Chico State University, that her daughter did not have a boyfriend, and that her daughter had spent Christmas night at home. Magana did not know defendant and did not recognize the Chrysler.
Because defendant did not have a driver’s license, the officers decided to impound the Chrysler; they conducted an inventory search of the car before arranging to have it towed. (At that point, the Chrysler had not yet been reported stolen.) During the search, the officers found a black knit beanie in the trunk, a black Oakland Raiders baseball cap on the backseat, some shirts and a pair of slacks in the trunk, a letter that had “gang writing” and the phrase “northern killer” in it in the glove box,  and a gun under the front passenger seat. The officers found Jose Ramirez’s (the Chrysler owner’s son’s) identification cards on the floorboard in front of the front passenger seat. The officers also found a bag of marijuana.
The black beanie had the word “Salinas” embroidered in red letters on the front and a red “[H]uelga bird” embroidered on the back. The baseball cap had the phrase “Raiders 4 Life, ” the area codes for both Oakland and Salinas, four dots, and four stars drawn on the underside of the bill. Garcia testified that neither the beanie nor the baseball cap belonged to her son.
The gun (a.38-caliber Arminius Titan Tiger revolver) had been carefully wrapped in a white T-shirt that was folded over the gun two or three times. The gun was loaded and had black electrical tape wrapped around the handle. It was not registered. Garcia testified that the gun was not in the car when she gave it to Andrade. Andrade testified that before the car was stolen, she cleaned and vacuumed the car, including under the seats, and did not find any guns.
Defendant had “Salas” (which refers to the city of Salinas) tattooed in large letters across his chest, “Rios” tattooed in large letters on the back of his neck, and “Karina” tattooed on the right side of his neck. Since the dispatcher was unable to find any information under the name and date of birth defendant had given him, Officer Lopez called Salinas Police to see if they could identify defendant by his tattoos based on information in their gang database. A Salinas Police officer identified defendant as Pedro Rios Casanova with a date of birth of November 14, 1991. Officer Lopez asked defendant if that was his name and date of birth and defendant said, “Yes, that’s me.”
After informing defendant of his Miranda rights, Officer Lopez asked defendant if he wanted to speak with him and defendant said he did. Defendant said he was not driving the Chrysler. Defendant said he did not know anything about the gun, but told Officer Lopez that he would not find any fingerprints on it. The officers did not find the keys to the Chrysler on defendant’s person.
At booking, the intake officer asked defendant if he belonged to a gang and defendant said that he was a Norteño and that Sureños were his enemies. When asked if he wanted to be housed with other active Norteños, defendant said, “Yes.” At the end of the booking process, defendant told the officers his real name was Jose Rios and his date of birth was November 14, 1992. At the jail, Officer Lopez looked through defendant’s cell phone and found photographs of (1) Salinas Police officers conducting traffic stops, (2) the letter “L” in a font that matched the letters in defendant’s chest tattoo, and (3) the letters “NS.” According to Officer Lopez, “NS” is a gang reference; it stands for “Northside.”
The officers never found the keys to the Chrysler. Since the keys were small, it is possible defendant dropped them as he walked toward the officers, without the officer seeing it. There was no evidence that anyone started the car ...