Filed 6/27/13 P. v. Guerrero CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. JOHNNY ALBERT GUERRERO, Defendant and Appellant. G047068 (Super. Ct. No. 10CF3295)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed in part and reversed in part. Sylvia Whatley Beckham, under appo intment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Vincent P. LaPiet ra, Deputy Attorneys General, for Plaintiff and Respondent. * * *2 A jury convicted Johnny Albert Gue rrero of possession for sale of a controlled substance (Health & Saf. Code, § 11378), transportation of a controlled substance (Health & Saf. Code, § 11379, subd . (a)), active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a), (t he “(a) count”); all further undesignated statutory references are to this code), a nd possession of methamphetamine. (Health & Saf. Code § 11377, subd. (a).) Guerrero ch allenges the sufficiency of the evidence to establish he actively participated in a crimin al street gang. He also argues, and the Attorney General concedes, his conviction for simple possession of methamphetamine
must be reversed because it was a lesser incl uded offense of his othe r drug convictions. As we explain, Guerrero does not succeed in his challenge to the (a) count, and we therefore affirm the judgment in part, and reverse only with respect to the simple methamphetamine charge.
I
F ACTUAL AND P ROCEDURAL B ACKGROUND In December 2010, undercover narc otics enforcement sheriff’s deputies were conducting surveillance of the Allure Apartments on Chapman Avenue in Orange because they suspected an important drug cart el member resided there. Guerrero and Eberardo Diaz pulled into a parking structur e adjoining the apartm ent complex, parked their car, and entered the apartm ent building, where they rema ined for 30 minutes to an hour. Diaz had been driving the vehicle, and he entered and exited the apartment building carrying a black bag.
The undercover officers followed Diaz and Guerrero after they left the apartment complex and drove to a local fast food restaurant known for drug transactions.
Diaz and Guerrero met a man and a woman in the parking lot and the four entered the3 restaurant together. A City of Orange police officer, unaware of the undercover surveillance, spotted Diaz’s vehicle and ran a check on the license pl ate, revealing prior
narcotics convictions. The o fficer followed the duo when th ey left the restaurant and attempted to stop Diaz for illegall y tinted taillights and windows. Diaz, however, sped off, leading the police on a high-speed chase. The undercover officers monitored the pursuit and, while following at a distance, retrieved a black bag they found in the middle of the road. The bag matched the one Diaz had taken into the apartment building. Meanwhile, the officers giving chas e managed to pull over and arrest Diaz and Guerrero. The arresting officers found a powdery residue in the vehicle’s center console and a glass methamphetamine pipe c overed by a napkin on the passenger’s side floorboard, where Guerrero had been sitting. The officers found Diaz in possession of more than $2,600 in cash, and Guerrero had divided $640 among three of his pants pockets. Guerrero’s brother-in-law later testif ied he gave Guerrero $700 for living expenses. The black bag that had been discarded in the street contained a loaded 9-millimeter handgun, approxima tely $31,000 worth of meth amphetamine, and a digital scale. The methamphetamine was p ackaged in 13 separate baggies. Orange County Sheriff’s Deputy Roland Andrade tes tified as a gang expert for the prosecution. He explained it is impor tant for narcotics-dealing gangs to claim certain territory as their domain. This allo ws the gang to generate revenue from selling drugs without interference fro m competitors, and to collect a “tax” from unaffiliated drug dealers who wish to ply their trade in the ga ng’s territory. Narcotics deals conducted by the gang’s members are often a group effort in which a member enlists a fellow gang member to serve as “backup ” for protection and to ensu re “nothing goes wrong.”4 Andrade identified Southside as a Santa Ana gang with recognized identifying signs and sy mbols, including the color maro on, and a pattern of committing
certain crimes. In December 2010, Southside’s primary activ ities consisted of narcotics sales and firearm possession. Andrade concl uded Guerrero was an active Southside gang member based on his past admissions to polic e officers that he was a Southside member and his role in the present case as backup fo r “another Southside criminal street gang member,” thereby also imp licitly identifying Diaz as a Southside member. Andrade explained that veteran gang members like th e 40-year-old Guerrero were entrusted to carry out drug deals involving la rger quantities of contraband as in this case, rather than “an entry level gang member who is . . . not typically trusted with that amount of narcotics, firearms, stuff of that nature.”
Andrade based his conclusion Di az was a Southside member on his repeated contact with Southside members, his prior convictions for selling drugs in Southside’s territory, and his gu ilty plea “in this particular ca se to actively participating in the South[side] criminal street gang duri ng the course of this incident.” Andrade acknowledged that Diaz’s previous offenses had been “regular narcotics conviction[s]” without any gang involvement despite the larg e sums of drugs and cash involved, but Andrade concluded that in this case “[ h]is conduct had progressed to the active participant level.”
Guerrero testified Diaz was not a So uthside member. Paroled from prison a month earlier, Guerrero explained he spent tim e with Diaz in part because his parole
conditions forbade him from asso ciating with Southside member s. He had known Diaz a long time, and he relied on him for transporta tion. The night of the incident, he and Diaz5 dropped Diaz’s wife off at home after the th ree had dinner together, and the two men planned to pick up Guerrero’s female friend from a party. But Diaz stopped at the Allure Apartm ents to visit a woman with whom he was having an affair. Guerre ro claimed he did not know what was in the black bag Diaz carried into and out of the ap artment building, nor did he k now Diaz was selling drugs. Guerrero explained he wanted to remain in the car while at the Allure Apartments, but
needed to use the restroom inside. Guerrero also provided an innocent explanation for
their visit to the fast food restaurant known for drug deal s, because he “wanted to get some curly fries.” Guerrero urged Diaz to use the drive-th rough because he spotted the officer in the parking lot, which alarmed Gue rrero because had been drinking alcohol in violation of his parole conditions. Diaz, however, rejected his suggestion and they entered the restaurant, but Guerrero did not know or talk to the girl Diaz met there. The jury convicted Guerre ro as noted above, the tr ial court in a bifurcated proceeding found allegations of several pr ison priors and a prior serious felony conviction and strike to be true, and the court sentenced Guerrero to a nine-year term. He now appeals.

II
D ISCUSSION A. The Evidence Supports Guerrero’s C onviction for Active Gang Participation Guerrero challenges the sufficiency of the evidence to support his conviction for the substantive ga ng crime defined in section 186.22, subdivision (a). To be convicted of this offense, a person must (1) actively participate in a criminal street gang; (2) knowing that its memb ers engage in or have engage d in a pattern of criminal6 gang activity; (3) and “willfully promote[], furt her[], or assist[] in any felonious criminal conduct by members of that gang.” ( Ibid. ) Guerrero only disput es the third element. The Attorney General relies on case law that a gang member may be convicted of active gang participation based on his or her own actions in committing the underlying felony, since he or she necessarily promotes, furthers, or assists in that
felonious conduct. (See People v. Sanchez (2009) 179 Cal.App. 4th 1297, 1308-1309; People v. Salcido (2007) 149 Cal.App.4th 356, 368; People v. Ngoun (2001) 88 Cal.App.4th 432, 437.) During the penden cy of this case, however, the California Supreme Court decided People v. Rodriguez (2012) 55 Cal.4th 1125, which disapproved this line of authority. In Rodriguez , the court concluded that “t o satisfy the third element, a defendant must willfully advance, encourage, contribute to, or help members of his gang commit felonious criminal conduct.” ( Id . at p. 1132.) Thus, the court held that “section 186.22(a) requires th at felonious criminal cond uct be committed by at least two gang members, one of whom can include th e defendant if he is a gang member.” ( Ibid. , italics added.)
Guerrero asserts the evidence fails to establish Diaz was a gang member, and therefore Guerrero’s gang co nviction cannot stand. True, Diaz’s guilty plea to the (a) count in this case does not establish he was a gang member because the Legislature has expressly specified gang membership is not an element of the offense. (§ 186.22, subd. (i) [“nor is it necessary to prove that the person is a me mber of the criminal street gang”].) Guerrero also argues that Diaz’s plea admission to assisting a gang member (Guerrero) in the pres ent offense shows only that Diaz continued to associate with the Southside gang, as he had in the past, but association is not membership.7 Guerrero cites numerous examples of this truism, including defense attorney and gang experts who cannot be deemed members of a gang simply because they associate with gang members. He speculates that Diaz si milarly “could also have [had] a professional relationship as a drug supplier for gang members from one or more gangs, but not be a member of any gang.” The distinction here, however, is that Andrade explained that when gang members engage in drug deals, especially in large quantities, they often have “backup” in
the form of fellow gang members. Consequently, th e jury reasonably could conclude
Guerrero served in this ro le for Diaz, and thereby infer Diaz was a fellow Southside member, which explained Gue rrero’s presence accompanyi ng him while they had more than $30,000 in methampheta mine to distribute. Andrade acknowledged that gangs ma y allow nonmembers to engage in sales for a “taxed” share of the procee ds, but no evidence suggested a gang would provide “backup” in such instances. Moreover, the duo’s movements here appear to have been outside Southside’s Santa Ana territory , rendering even more speculative the notion Guerrero risked his safety and newfound freedom to “back up” a nonmember. True,
other reasonable conclusions include the possibility Guerrero assisted Diaz solely based on their friendship, or that Sout hside had an interest in monitoring large transactions even extraterritorially to ensure their “tax” cut, without necessa rily providing any “backup.” But the fact that circumstances may be reconciled with an explanation in
which Diaz was not a Southside member does not warrant reversal. Rather, the standard of review requires that we affirm the judgme nt unless under “no hypothesis whatever is
there sufficient substantial ev idence to support it.” ( People v. Redmond (1969) 71 Cal.2d 745, 755.) On appeal, we must view the evidence in the light mo st favorable to the8 judgment ( People v. Elliot (2005) 37 Cal.4th 453, 466), a nd it is the trier of fact’s exclusive province to assess w itness credibility and to weigh and resolve conflicts in the evidence. ( People v. Sanchez (2003) 113 Cal.Ap p.4th 325, 330.) Thus, a defendant attacking the sufficiency of the eviden ce “bears an enormous burden.” ( Ibid .) Here, as we have explained, the jury reasonably could conclude Guerrero’s veteran status called for his participation in the methamphetamine distribution scheme given the large quantity for sale , and that in doing so he provided “back up” for Diaz. Based on these factors, the jury reasonabl y could infer Diaz wa s “another South[side] member” as Andrade testified, and we theref ore must affirm Guerrero’s conviction for promoting, furthering, or assi sting “in any felonious criminal conduct by members of that gang.” (§ 186.22, subd. (a).)

B. The Simple Possession Conviction Must Be Reversed as a Lesser Included Offense The Attorney General concedes Guerrero’s conviction for simple possession must be reversed. We agree. As the Attorney General explains, “Simple possession is a lesser included offense of possession for sale when the offenses are based on the same contraband.” Because the jury found Guerrero guilty of possession for sale of a controlled substance (Health & Saf. Code, § 11378) based on the same conduct as his conviction for simple possession, the latter must be reversed.9 III
D ISPOSITION We reverse the conviction for si mple possession of methamphetamine (Health & Saf. Code § 11377, subd. (a)) as a lesser included offense, but affirm the judgment in all other respects. The trial cour t is directed to forwar d a corrected abstract of judgment to the Department of Corrections and Re habilitation.

ARONSON, J.

WE CONCUR:

O’LEARY, P. J.

THOMPSON, J.