Filed 4/14/15 P. v. Guzman CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. JONATHAN ISMAEL GUZMAN, Defendant and Appellant. H039286 (Santa Clara County Super. Ct. No. C1198262)

S TATEMENT O F T HE C ASE A jury convicted defendant Jonathan Isma el Guzman of first degree murder (Pen. Code, §§ 187/189). 1 The jury found true an allega tion that defendant personally and intentionally discharged a firearm causing de ath (§ 12022.53, subd. (d)) and found true an allegation that defendant comm itted murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Th e trial court sentenced defendant to a total prison term of 50 years to life, consisting of a term of 25 years to life for the murder and a term of 25 years to life for the firearm enhancement. The trial court stayed the sentence on the gang
enhancement.

1 Subsequent unspecified statutory references are to the Penal Code.2 Defendant now appeals from the judgment of conviction. On appeal, he contends
that there was insufficient ev idence to support the “prima ry activities” element of the gang enhancement. He also contends that his sentence is cruel and unusual punishment
under Miller v. Alabama (2012) 567 U.S. ___,132 S.Ct. 2455 ( Miller ). As set forth below, we conclude that the prosecution presen ted sufficient evidence in support of the gang enhancement, and we al so conclude that defe ndant’s sentence does not constitute cruel and unusual punishment. We therefore will affirm the judgment of
conviction.
S TATEMENT O F T HE F ACTS The Shooting At approximately 5:00 p.m. on January 21, 2011, Hugo Gutierrez rode a bicycle on Capitol Expressway in San Jose. Defenda nt, who was also riding a bicycle, followed Gutierrez. Defendant pointed a gun at Gutierr ez and fired. Gutierrez got off his bicycle, ran toward a restaurant, and fell down outside the restaurant. Defendant jumped off his bicycle and walked toward Gu tierrez. Gutierrez attempted to stand up, but he lost his footing. Gutierrez put up his hands in an effo rt to shield himself, and he screamed for help. Defendant began “rapidly firing” the gun at Gutierrez. Gutierrez was “just lying there” on the ground, and defend ant fired multiple shots at hi m. Defendant then jumped on his bicycle and rode away. Gutierrez suffered gunshot wounds on his ch est, abdomen, arms, and legs. One of
the bullets struck Gutierrez’s heart, and it killed him. Gang Evidence At the time of the shooting, defendan t was a member of Kollmar Vago Trece (hereafter “KVT”), a Sureño street gang. Gu tierrez was a member of Just Busting Funk (hereafter “JBF”), a Norteño street gang. Th ere is a longstanding rivalry between Sureño gangs and Norteño gangs.3 Gang Detective Carlos Garcia testified as an expert in “Hispanic criminal street gangs, specifically KVT.” His expertise wa s based on the following: academic training regarding criminal street gangs; four and a half years of patrolling the streets of San Jose, including gang areas; contact and conversations with 250 gang members and affiliates, including KVT members; regular conversati ons with gang detectives and homicide detectives, including conversa tions regarding the operations of KVT; and conversations with agents from other la w enforcement agencies. Detective Garcia opined that, as of Ja nuary 21, 2011, the primary activities of KVT were assaults with deadly weapons and firearms possession as prohibited by former section 12025. He explained that KVT me mbers engaged in those activities “regularly” and on a “consistent basis,” not just occasionally. His opi nion regarding the primary
activities of KVT was based on conversations with gang members, conversations with other law enforcement officials, and prior police documentation. Detective Garcia described prior cr imes committed by KVT members. On July 15, 2010, two KVT members were in a car, and they possessed a sawed-off shotgun and shotgun ammunition. A KVT member committed assault with a deadly weapon, a stabbing with a knife, on November 20, 2008. Detective Garcia explained that “violence is very important in the gang world,” that gang members “must show a reputation of being violent and powerful,” and that gangs gain power and respect through violence. Detective Garcia opined that defendant killed Gutierrez for the benefit of KVT. He explained that Gutierrez was a Norteño ga ng member, and he was riding his bicycle in KVT territory. Gutierrez’s conduct was the “ultimat e form of disrespect in gang culture.” Gang members retaliate against such disres pect with “public acts of violence.” Defendant’s “very public” act of violence in creased KVT’s power and influence because
it showed that KVT members would “do whatever is necessary” to protect their territory.4 D ISCUSSION I. Sufficiency of the Evidence
Defendant contends that we must reverse the gang en hancement because there was
insufficient eviden ce to establish the “primary activitie s” element of the enhancement. As explained below, we conclude that that the prosecution presente d sufficient evidence in support of the gang enhancement.
A. Standard of Review “In considering a challenge to the suffici ency of the eviden ce to support an enhancement, we review the en tire record in the light most favorable to the judgment to
determine whether it contains substantial evid ence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ( People v. Albillar (2010) 51 Cal.4th 47, 59-60.) “The question is whether, after viewi ng the evidence in the light most favorable to the prosecution, any rational trier of f act could have found the elements of the underlying enhancem ent beyond a reasonable doubt.” ( People v. Alvarez (1996) 14 Cal.4th 155, 225, italics omitted .) “In making this determina tion, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate th e credibility of witnesses.” ( People v. Cortes (1999) 71 Cal.App.4th 62, 71.)
B. The Prosecution Presented Sufficient Evidence In order to prove the gang enhancement, the prosecution had to present substantial evidence establishing that KVT was a “crimina l street gang.” (§ 186.22, subd. (b)(1); People v. Vy (2004) 122 Cal.App.4th 1209, 1221 ( Vy ).) Section 186.22 defines that term as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities th e commission of one or more
of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a co mmon name or common identifying sign or5 symbol, and whose members individually or co llectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) “Therefore, the ‘criminal street gang’ component of a gang enhancement requi res proof of three essential elements: (1) that there be an ‘ongoing’ association in volving three or more participants, having a ‘common name or common identifying sign or sy mbol’; (2) that the group has as one of its ‘primary activities’ the co mmission of one or more specified crimes; and (3) the group’s members either separately or as a group ‘have engaged in a pattern of criminal gang activity.’ ” ( Vy, supra, 122 Cal.App.4th p. 1222.) Here, Detective Garcia opined that the primary activities of KVT were assaults with deadly weapons and firearms possession in violation of former section 12025. Defendant does not dispute that those offens es are qualifying crimes enumerated in section 186.22, subdivision (e). Rather, he co ntends that there was insufficient evidence that KVT members consistently committed those crimes. “The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation. ] That definition woul d necessarily exclude
the occasional commission of those cr imes by the group’s members.” ( People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) “Suffi cient proof of the gang’s primary activities might consist of eviden ce that the group’s members consistently and repeatedly have committed criminal activity listed in th e gang statute. Also sufficient might be expert testimony . . . .” ( Id. at p. 324, italics in original.) “[E]vidence of either past or present criminal acts listed in subdivision (e ) of section 186.22 is admissible to establish the statutorily required primary activities of the alleged criminal street gang.” ( Id. at p. 323.) The jury may “consider the circumst ances of the charged crimes on the issue of the group’s primary activities.” ( Id. at p. 320.)6 Contrary to defendant’s assertion, the prosecution presented substantial evidence in support of the primary activ ities element of the gang enha ncement. Detective Garcia opined that KVT members committed assaul ts with deadly weapons and committed firearms possession in violation of former se ction 12025 “regularly” and “on a consistent basis.” He had an adequate basis upon wh ich to base his opinion; his opinion was based
on conversations with KVT members and member s of other gangs, regular conversations with other law enforcement officials, and police documentation of KVT activities. (See Vy, supra, 122 Cal.App.4th p. 1223, fn . 9 [a gang expert may give opinion testimony that is based upon hearsay, including conversatio ns with gang members and information the expert has learned from colleagues and law en forcement agencies].) Detective Garcia’s opinion testimony was sufficient to establis h the primary activities element of the gang enhancement. Other evidence, however, bo lstered his opinion. The prosecution presented evidence of crimes committed by KVT members between 2008 and 2011: a stabbing in 2008, possession of a sawed-off shotgun in 2010, and defendant’s use of a gun to kill Gutierrez in 2011. Detective Garc ia also testified that “violence is very important in the gang world,” and he expl ained that gang members must engage in violence in order to gain po wer and respect. The evidence of KVT’s crimes between 2008 and 2011, combined w ith Detective Garcia’s testimony regarding the importance and necessity of violence in gang culture, strongly su ggested that KVT members consistently and repeatedly committed assa ults with deadly weapons and possessed
firearms in violation of form er section 12025. Accordingly, based on the totality of the foregoing evidence, we conclu de that there was sufficien t evidence to support the primary activities element of th e gang enhancem ent. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [sufficient evidence establishe d the primary activities element where an expert testified that the gang’s pr imary activities included offenses enumerated in section 186.22 and the charged offense was consistent with the expert’s testimony].)7 Defendant asserts that there was insu fficient evidence to support the primary
activities element because Detective Garcia “o ffered no evidence of the number” of times
KVT members committed assaults with dead ly weapons and possessed firearms in
violation of former section 12025. Defendant emphasizes that Detective Garcia did not provide “meaningful numbers that would allow the jury to reach an informed conclusion.” Defendant’s argument is unco nvincing. Defendant concedes that no authority requires an expert to state the sp ecific number of times a gang has engaged in its primary activity. Moreover, although it mi ght have been helpfu l to the jury if Detective Garcia had provided specific num bers, we cannot conclude that the such testimony was necessary here. As explained above, we believe that the totality of the evidence provided an adequate basis for th e jury to conclude that KVT members consistently and repeatedly committed assa ults with deadly weapons and possessed
firearms in violation of former section 12025. We therefore must conclude that sufficient evidence supported the primary activities el ement of the gang enhancement. II. Cruel and Unusual Punishment
Defendant contends that his sentence of 50 years to life constitutes cruel and unusual punishment under Miller, supra, 567 U.S. ___, 132 S.Ct. 2455, and he accordingly requests that we remand the case fo r resentencing. Defendant’s argument is premised on the notion that his sentence is th e functional equivalent of life without parole (hereafter “LWOP”). As explained below, defe ndant has failed to show that his sentence
constitutes cruel and unusual punishment. 2

2 We note that the California Supreme Court has granted review in two cases to consider whether a sentence of 50 years to life for a homicide committed while the defendant was a juvenile viol ates the Eighth Amendment: People v. Franklin (2014) 224 Cal.App.4th 296, review grante d June 11, 2014, S217699 and In re Bonilla (2013) 220 Cal.App.4th 1232, review granted Fe bruary 19, 2014, S214960.8 In Miller , the United States Supreme Court he ld that “mandatory [LWOP] for those under the age of 18 at the time of th eir crimes violates the Eighth Amendment’s prohibition on ‘cruel and u nusual punishments.’ ” ( Miller, supra, 132 S.Ct. at p. 2460.)
Miller further held that a court that imposes LWOP on a juvenile offender must “take into account how children are different, and how thos e differences counsel against irrevocably sentencing them to a lifetime in prison.” ( Id. at p. 2469, footnote omitted.) The Miller holding applies to a term-of-yea rs sentence that is the functional equivalent of LWOP. ( People v. Argeta (2012) 210 Cal.App.4th 1478, 1480-1482.) Defendant was 17 years old when he commi tted the charged crime. He correctly
notes that the trial court did not consider hi s youth when it sentenced him to 50 years to life. He has failed to show, however, that hi s sentence is the functional equivalent of
LWOP.
Defendant contends that his sentence is the functional equivalent of LWOP
because he becomes eligible for parole when he is 67 years old, and his life expectancy is 79 years. 3 This argument is unconvincing. Base d on the numbers provi ded by defendant, he will have 12 years of life remaining wh en he becomes elig ible for parole. Miller does “not apply to sentences which leave the possi bility of a substantial life expectancy after prison.” ( People v. Perez (2013) 214 Cal.App.4th 49, 52.) A term-of-years sentence “with a parole eligibility date that falls outside the juvenile offender’s natural life expectancy” is the functional equivalent of LWOP. ( People v. Caballero (2012) 55 Cal.4th 262, 268.) A sentence is not the fu nctional equivalent of LWOP if it provides the
offender “ ‘with some realis tic opportunity to obtain rele ase’ from prison during his or her expected lifetime.” ( Ibid .) Defendant’s parole eligibility date falls well within his natural life expectancy, and he therefore ha s a realistic opportunity to obtain release

3 Defendant cites data from the Center s for Disease Control for the proposition that his life expectancy is 79 years.9 during his expected lifetime. Defendant has t hus failed to show that his sentence is the functional equivalent of LWOP, and we cannot conclude that his sentence runs afoul of
Miller

. Finally, we briefly note that defendant has the opportunity to obtain release well before his 67th birthday. Recently-enacted section 3051 mandates “you th offender parole hearings” at which the Board of Parole Hear ings reviews “the parole suitability of any prisoner who was under 18 years of age at th e time of his . . . offense.” (§ 3051, subd. (a)(1).) A youth offender parole hearing “shall provid e for a meaningful opportunity to obtain release.” (§ 3051, su bd. (e).) Under section 3051, defendant is entitled to a youth offender parole hearing during his 25th year of incarceration, when he is in early 40’s. (§ 3051, subd. (b)(3).) Given that sec tion 3051 provides defendant the opportunity to be released on pa role when he is in his early 40’s, it would strain credulity
for us to conclude that his sentence is the functional equivalent of LWOP. The enactment
of section 3051 thus bolsters our conclusion that defendant’s sentence is not cruel and unusual punishment within the meaning of Miller

. D ISPOSITION The judgment is affirmed.10 __________ _______________ _____________ RUSHING, P.J.

WE CONCUR:

___________________ _________________ PREMO, J.

___________________ _________________ MÁRQUEZ, J.