People v. Campos
| Decision Date | 11 September 2012 |
| Docket Number | H0035756 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RAYMOND CAMPOS et al., Defendants and Appellants. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS091166)
On April 10, 2009, two members of the Monterey County Joint Gang Task Force, Monterey County Sheriff's Deputy Jesse Pinon and Salinas Police Officer Jeffrey Alford, watched as defendant Raymond Campos, a long-time Norteño, emerged from a Salinas apartment and engaged in two consecutive hand-to-hand transactions with the drivers of two vehicles who had just pulled into the parking lot of the apartment complex. Before the second driver left the lot, the officers got out of their parked, unmarked car to question Campos about this conduct. Before they reached him, Campos got into his own car and began to back out of the lot. Officer Alford got Campos to stop momentarily by hitting the driver's side of the car with his hand and opening the driver's door. In disregard of Alford's instructions to stop, Campos resumed backing up. Deputy Pinon was knocked to the ground by the open driver's door and dragged underneath the car for a short distance. Campos fled in his car as Alford fired several shots.
Investigation by other officers revealed two envelopes containing almost three ounces of very pure methamphetamine on the ground near the site of the transactions and a safe in the yard of a church next door to the apartment containing about two and one-half ounces of equally pure methamphetamine along with packaging materials, digital scales, a cutting agent, and a mixing bowl. The safe was on the ground on the other side of a fence, but almost directly in line with the window of the apartment from which Campos had emerged. The apartment was rented by a long-time female friend of Campos, who was inside the apartment at the time with her husband defendant Miguel ("Michael") Diaz, a long-time Norteño. A key to the safe was located inside the car Campos had abandoned on the side of the freeway less than two miles from the apartment.
Campos was charged with personally inflicting great bodily injury (Pen. Code, § 12022.7, subd. (a))1 during the premeditated and deliberate attempted murder of Deputy Pinon (count 1; §§ 187, subd. (a), 664, subd. (a)) and an assault on Pinon with a deadly weapon (count 2; § 245, subd. (c)). He was also charged with assaulting Officer Alford with a deadly weapon (count 3; § 245, subd. (c)), possessing methamphetamine for sale (count 4; Health & Saf. Code, § 11378), and selling or furnishing methamphetamine (count 5; Health & Saf. Code, § 11379, subd. (a)). All these crimes were alleged to have been committed for the benefit of or in association with the Norteño criminal street gang (§ 186.22, subd. (b)(1)) and he was also charged with active participation in a criminal street gang (count 6; § 186.22, subd. (a)). It was further alleged that Campos had a prior conviction of the serious felony of possessing a controlled substance for sale (§§ 667, subd. (a)(1), 1170.12, subd. (c)(1); Health & Saf. Code, § 11370.2, subd. (c)) for which he had served a prior prison term (§ 667.5, subd. (b)).
Diaz was jointly charged in count 4 with possessing methamphetamine for sale, also for the benefit of or in association with the Norteño criminal street gang and in count 6 with active participation in a criminal street gang. It was further alleged that Diaz had two prison priors.
Campos testified at trial. Diaz did not. After eleven days of testimony and three days of deliberations, a jury convicted each defendant of all charges, except that Campos was acquitted of attempting to murder Deputy Pinon (count 1) and assaulting Officer Alford (count 3). In separate proceedings, the court found true Campos's prior serious felony conviction and prison term and Diaz's two prison priors.
The trial court sentenced defendant Campos to a total of 34 years in prison, including 23 years for the assault on an officer (count 2; § 245, subd. (c)), composed of a five-year upper term doubled due to the prior strike (§ 1170.12, subd. (c)(1)), a three-year enhancement for inflicting great bodily injury (§ 12022.7, subd. (a)), and a ten-year gang enhancement (§ 186.22, subd. (b)), and also six consecutive years for selling or furnishing methamphetamine (count 5; Health & Saf. Code, § 11379, subd. (a)), one-third the midterm doubled to two, with a one-year midterm for the gang enhancement and three years for the prior drug conviction (Health & Saf. Code, § 11370.2, subd. (c)), and a five-year consecutive sentence for a prior serious felony conviction (§ 667.5, subd. (a)). The court imposed and stayed pursuant to section 654 a three-year doubled term for possessing methamphetamine (count 4), a three-year gang enhancement, a three-year prior drug conviction enhancement, and a doubled four years for active participation in a criminal street gang (count 6), and a one-year prison prior enhancement. The court also ordered Campos to pay a restitution fine of $10,000, a criminal conviction assessment of $120 (Gov. Code, § 70373), a court security fee of $120 (§ 1465.8), a $400 lab fee (Health & Saf. Code, § 11372.5, subd. (a)), and a $400 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)), the latter two each including $200 fees on counts 4 and 5.
The trial court sentenced defendant Diaz to eight years in prison, including the upper term of three years for possessing methamphetamine for sale (count 4; Health & Saf. Code, § 11378) and the middle term of three years for the gang enhancement (§ 186.22, subd. (b)(1)), with two one-year prison prior enhancements (§ 667.5, subd. (b)). The court stayed a three-year term for active participation in a criminal street gang (count 6; § 186.22, subd. (a)).
On appeal, the defendants individually contend that there was insufficient evidence to support each of their convictions, except for Campos's conviction of possessing methamphetamine for sale. They also question the sufficiency of the evidence to support the gang enhancements. They each individually challenge a supplemental instruction given in response to a jury question regarding whether it is enough to justify a gang enhancement that a defendant intended to assist, further or promote his own criminal conduct as a gang member. Diaz asserts error in the trial court's failing to sever his trial from that of Campos.
Campos also claims that too much gang evidence was admitted, including his own prior conviction of possessing methamphetamine for sale with a gang enhancement, and that the limiting instructions were inadequate to confine the gang evidence. He also challenges the admission of expert opinions about his hand-to-hand transactions and the court's refusal to instruct on the lesser included offense of simple assault. Finally, he questions the imposition of two nongang enhancements and the crime lab and drug program fees on stayed count 4. Diaz joins in all arguments by Campos that apply to him. The Attorney General disputes all of the arguments by defendants except for Campos's nongang enhancements. For the reasons stated below, we will affirm the judgment as to defendant Diaz and modify the judgment as to defendant Campos by striking the nongang enhancements and the crime lab and drug program fees on count 4, and then affirm that judgment as so modified.
In the evening of Friday, April 10, 2009, as Monterey County Joint Gang Task Force ("Gang Task Force") members Sheriff's Deputy Jesse Pinon and Salinas Police Officer Jeffrey Alford were patrolling Salinas in an unmarked car, Pinon recognized Campos and his Thunderbird from prior encounters and decided to follow him. They were both wearing civilian clothes with tactical raid vests. Pinon's vest displayed a star and "Sheriff" on the front and "Sheriff" on the back. Alford's vest displayed a badge and "Police" on the front and "Police" on the back.
Campos pulled into an apartment complex. Deputy Pinon was aware that Diaz may be living in the complex. Pinon initially parked across the street, but after five to ten minutes Pinon pulled into the parking lot of the apartment complex to get a better vantage point and parked next to Campos's Thunderbird. According to Officer Alford, though the sun was setting when they pulled into the parking lot, they did not need artificial lighting to see. It was stipulated that the sun set that night at 7:37 p.m.
Within a couple of minutes, Deputy Pinon saw Campos emerge from a gate and walk into apartment seven (hereafter "the apartment"). A couple of minutes later, a white male in a white Bronco pulled up next to the Thunderbird. Campos left the apartment and walked up to the driver of the Bronco.
Deputy Pinon and Officer Alford were both trained in recognizing narcotics transactions. According to Pinon, Campos reached with his right hand into the Bronco and engaged in a hand-to-hand transaction with the driver. It was not a handshake. According to Alford, Campos reached into the Bronco with both hands. Both of them shared the opinion that money had been exchanged for controlled substances, though neither one saw either money or a drug or Campos put anything in his clothing.According to Pinon, the location was a good one for drug transactions as it was shielded from the street. The Bronco drove off and Campos went back inside the apartment.
Within a couple of minutes, a man later identified as Valente Flores pulled into the parking lot without a passenger and parked his pickup truck....
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