People v. January, E041905 (Cal. App. 1/22/2008)
| Decision Date | 22 January 2008 |
| Docket Number | E041905 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JAMAL JANUARY, Defendant and Appellant. |
Appeal from the Superior Court of San Bernardino County, No. FSB48050, Douglas A. Fettel, Judge. Affirmed as modified.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jamal January appeals from his conviction of having a concealed firearm in a vehicle (Pen. Code,1 § 12025, subd. (a)(1)) and the jury's true finding that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Defendant contends the evidence was insufficient to support the true finding on the gang enhancement. We disagree. Defendant also contends that because the People did not prove he participated in felonious gang conflict distinct from the weapons offense, his conviction of the weapons offense must be reduced to a misdemeanor. Although we agree that the evidence did not support elevating the weapons offense to a felony under section 12025, subdivision (b)(3), defendant admitted a prior felony conviction which independently served to elevate the weapons offense to a felony, under section 12025, subdivision (b)(1). Defendant also challenges his sentence on the grounds that (1) applying section 186.22, subdivisions (a) and (b), violated the rule against multiple punishment under section 654; (2) the one-year enhancement for a prior prison term conviction must be stricken; and (3) the imposition of the aggravated term for his firearm offense violated his constitutional right to a trial by jury. We agree that the one-year term under section 667.5, subdivision (b), must be stricken because it was based on the same prior conviction that supported the imposition of a five-year enhancement under section 667, subdivision (a). We find no other errors, and in all other respects we will affirm the judgment.
On January 27, 2005, San Bernardino Police Officer Travis Walker spotted defendant in a parked vehicle in San Bernardino in an area known as a congregation point for gang members. When Officer Walker pulled up, defendant began to back his vehicle away, and Officer Walker noticed that defendant's vehicle did not have a front license plate. Officer Walker knew that persons engaged in criminal activity sometimes removed their vehicles' license plates to avoid being identified. Officer Walker initiated a traffic stop of defendant's vehicle.
Officer Walker recognized Eric Anderson, a documented member of the Inland Empire Projects/Black Rag Mafia (hereafter sometimes referred to as IEP) gang as a passenger in the vehicle. There had been shootings in the area involving the IEP and rival gangs, and Officer Walker was in the area to attempt to quell further gang violence.
Defendant was wearing a brown baseball cap over a black bandanna, a brown and white football jersey, and light brown pants. Officer Walker asked defendant for permission to search the car. Defendant said the car did not belong to him, and he would have to call his uncle in Arizona; the car's rear license plate was an Arizona dealer advertising placard. Officer Walker decided to impound the vehicle and conduct an inventory search.
Defendant became agitated and would not surrender his keys. With the assistance of Officer Baker, Officer Walker removed defendant's keys from his pocket and opened the car door. The officers recovered a compact disc from the front seat with "IE Projects 10th Street and 1600 Blocc" and the moniker "Maldy 2" written on it.
Officer Baker removed a gun from underneath the driver's seat. With the driver's door open, the gun could be seen on the floorboard. The gun was loaded with .25-caliber ammunition, a popular size because it was a small round that fired at high velocity and ensured more damage. The gun was also small enough to be easily concealed in clothing, and the officer testified "[t]he object is to maximize the concealment of a weapon." The officers also found two black bandannas wrapped around the vehicle's steering wheel and black bandannas fixed to the air-conditioning vent and to the dashboard along with a photograph of Jamal Macon and a photograph of another person displaying a gang hand sign.
Defendant had the letter "P" with the word "Inland" tattooed on one triceps and the letters "J's" with the word "Empire" on the other triceps. Officer Walker testified the tattoos indicated membership in the IEP gang. Defendant also had a tattoo on his arm with the words "Maldy 2." Defendant told Officer Walker that Jamal Macon, who had been murdered in late 2004, was his "big homey," or big brother. Before Macon's murder, he had been a member of the IEP and had been "looked up to and highly respected based on certain accomplishments." With Macon gone, defendant was "at the top of the pecking order and of the Maldys."
Another tattoo on defendant depicted Officer Walker explained that the C and K indicated "Crip Killer," and crossing out the "C" indicated "[t]heir detest for the letter C in Crips." Finally, defendant had a tattoo of "Red Rum," which, as Officer Walker testified, stands for murder spelled backwards.
Officer Walker testified as an expert on gangs, particularly on the IEP. He testified that defendant was a member of the IEP, a criminal street gang, which had approximately 75 members, about 35 of whom were active in 2006. The gang's color was black, and gang members identified themselves with a black handkerchief or black rag. Defendant's gang moniker was Maldy 2; Macon, who had been murdered in late 2004, had been called Maldy. The gang's primary criminal activities were carjacking, vehicle theft, assault with a deadly weapon, and shooting at inhabited dwellings. Officer Walker testified as to prior convictions of two other members of the IEP as predicate crimes.
Based on defendant's tattoos, the black bandannas and the way they adorned the interior of the vehicle, the writing on the compact disc, the loaded weapon, and the presence of another gang member, Officer Walker testified that in his opinion, defendant was a member of the IEP. Officer Walker testified that in his opinion, if two gang members drove in a vehicle within a gang's turf, and one of the gang members was armed with a loaded weapon, the situation would benefit the gang. Officer Walker further testified that in his opinion, based on the facts of the case, the crime was committed to promote or benefit the IEP gang.
Defendant's fingerprints were not found on the gun.
The jury found defendant guilty as charged and found the criminal street gang enhancement true. (§§ 12025, subd. (a)(1), 186.22, subd. (b)(1).) The trial court found that defendant's prior conviction in Nevada for battery with use of a deadly weapon was a strike offense, a serious felony, and a prison prior (§§ 1170.12, subd. (a)-(d), 667, subd. (b)-(i), 667, subd. (a)(1), 667.5, subd. (b).)
The trial court sentenced defendant to the aggravated term of three years for the violation of section 12025 subdivision (a)(1), and doubled the term because of defendant's strike prior. The trial court imposed a consecutive four-year enhancement under section 186.22, subdivision (b)(1) gang enhancement; five years for the section 667, subdivision (a)(1) serious prior felony conviction; and one year for the section 667.5, subdivision (b) prior prison term enhancement, for a total sentence of 16 years. The trial court did not state specific reasons on the record for imposing the aggravated sentence. However, the trial court indicated it had read the probation memorandum, which recommended the 16-year sentence.
Defendant contends the evidence was insufficient to support the true finding on the gang enhancement under section 186.22, subdivision (b)(1). In addition, because the evidence did not show that defendant participated in gang conduct distinct from the weapons offense, defendant argues that his conviction under section 12025, subdivision (a)(1) must therefore be reduced to a misdemeanor. (People v. Lamas (2007) 42 Cal.4th 516, 524-525.)
When a criminal defendant challenges the sufficiency of the evidence to support a conviction, the reviewing court examines the evidence to determine whether any rational trier of fact could have found the elements of the offense true beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) The same standard of review applies to true findings on enhancement allegations. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.) Substantial evidence is evidence that is "reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
A true finding on a gang enhancement under section 186.22, subdivision (b)(1), requires proof that the defendant committed crimes in one of three ways: (1) "for the benefit of," (2) "at the direction of," or (3) "in association with any criminal street gang." (§ 186.22, subd. (b)(1); People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Defendant contends none of these factors was proven. Defendant also contends that Officer Walker's expert opinion was, standing alone, insufficient to sustain...
To continue reading
Request your trial