People v. Her, F048301 (Cal. App. 1/7/2008)

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THE PEOPLE, Plaintiff and Respondent, v. JOE HER, Defendant and Appellant.

F048301

Court of Appeals of California, Fifth Appellate District

January 7, 2008

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Merced County, No. 29368, Frank Dougherty, Judge.

Sandra Uribe, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HILL, J.

INTRODUCTION

This case is before us on remand from the United States Supreme Court for further consideration in light of that court's decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). The parties have provided supplemental briefing addressing Cunningham and the California Supreme Court's recent interpretation of Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II). After further consideration in light of both Cunningham and Black II, we affirm the judgment and sentence. Except for our discussion of defendant's sentence, the opinion we now file is substantially the same as our original opinion filed on September 5, 2006.

A jury found defendant guilty of carrying a loaded firearm within a public place (Pen. Code,¹ § 12031, subd. (a)(1); count 1), possessing a firearm with an obliterated serial number (§ 12094, subd. (a); count 2), resisting, delaying, or obstructing a peace officer (§ 148; count 3), carrying a concealed weapon (§ 12025, subd. (a)(2); count 4), and participating in a criminal street gang (§ 186.22, subd. (a); count 5). The jury also found true the criminal street gang enhancement alleged in counts 1 and 4 (§ 186.22, subd. (a)). Defendant was sentenced to a total prison term of seven years eight months: the upper term of three years on count 1, plus four years for the gang enhancement, a concurrent term of six months on count 3, and a consecutive term of eight months on count 5. The court stayed defendant's sentence on counts 2 and 4 under section 654.

On appeal, defendant contends: (1) the evidence was insufficient to support his conviction for carrying a loaded firearm in a public place; (2) his trial counsel rendered ineffective assistance by failing to request the court to instruct the jury with CALJIC No. 2.50; (3) section 654 bars punishment on the gang enhancement attendant to count 1; and (4) the court's imposition of the upper terms for count 1 violated his constitutional rights under Blakely v. Washington (2004) 542 U.S. 296. We will reject defendant's contentions, and affirm the judgment.

FACTS

At defendant's trial, Merced Police Officer Rodney Court testified that he has been a police officer for 17 years. On November 25, 2004, he was assigned to patrol the south district of the city, around the 1300 block of West Third Street. Officer Court was familiar with this area of Merced, and described it as consisting of "all apartments ... predominantly occupied by Southeast Asians." Gang members who live in the area have named it "Ghost Town." Officer Court and several other officers were dispatched to the area because a homicide had occurred there the previous night and there were reports of gang members loitering in the area.

When Officer Court first saw defendant, defendant was running towards him through a parking lot adjacent to the apartments. Officer Court yelled "`Police, police'" and ordered defendant to stop. Defendant immediately turned and ran in the opposite direction. Officer Court chased defendant between two apartment buildings. At the beginning of the chase, Officer Court noticed defendant was running with his right hand in his pants pocket. Midway during the chase, defendant pulled his hand from his pocket and started to run with both hands free and pumping up and down. Defendant was eventually caught by Officer Court and the other officers just to the north of Third Street. The entire chase lasted about 35 to 40 seconds.

After defendant was detained, Officer Court immediately went back to secure the path that defendant had just traversed. Officer Court suspected defendant had tossed something based on the fact defendant's hand had gone from being in his pocket to being free. Officer Court searched the area but found nothing. A K-9 search of the area, primarily for narcotics, also failed to recover anything. Finally, a dispatch operator informed the officers that a witness, Yeng Her, had called and said she had seen someone throw something. Officer Court went to talk to Her, whom he recalled having seen earlier while he was chasing defendant. Her had been standing between the apartment buildings, holding a child by the hand.

At the time of the incident, Her was visiting her parents at the apartment buildings. Although she was related to defendant, Her testified she did not know defendant personally. Officer Court testified that when he went to speak to Her, she told him that she saw the man they had been chasing throw something out of his right hand. She did not know what it was, but she thought it was heavy because it made a loud noise when it hit the ground. Officer Court searched the area again and found a loaded, .38-caliber revolver underneath some bushes between the two apartment buildings.

To support the gang enhancements and substantive gang offense, the prosecution introduced testimony of a police expert on street gangs and defendant's probation officer, who supervised defendant in connection with offenses defendant committed as a juvenile.² It is not necessary to recount this evidence in detail as defendant does not challenge the sufficiency of the evidence to support the gang offense and enhancements. Suffice it to say, the evidence showed that defendant was a validated member of the "Oriental Crips," a criminal street gang active in Merced. There was also evidence that defendant was connected with the "True Blues," a clique of the Crips that frequented the Ghost Town area. Assuming the facts of the case, the expert opined defendant committed the instant offenses for the benefit of a criminal street gang.

The prosecution also introduced evidence of a prior uncharged act by defendant. Koua Lor, another relative of defendant, testified that in September 2004, defendant got out of his car, punched Lor in the mouth, and pointed a gun at him. The gun was silver and resembled the gun involved in this case. Lor testified he knew defendant was a gang member but claimed he did not know why defendant attacked him.

DISCUSSION

I. Sufficiency of the evidence

Defendant contends there was insufficient evidence to support his conviction for carrying a loaded firearm because the prosecution presented no evidence that he carried the weapon in an incorporated city or prohibited area of an unincorporated territory, an element of the crime of possessing a firearm in a public place under section 12031, subdivision (a)(1).³ Defendant further contends that if the evidence was sufficient to establish that the pertinent events took place in the city of Merced, it would be improper for this court to take judicial notice of the fact Merced is incorporated. Defendant's contentions are erroneous.

When the sufficiency of the evidence is challenged on appeal, the appellate court reviews the evidence and reasonable inferences drawn from that evidence most favorably to the prevailing party. The court upholds the judgment if substantial evidence supports it. (People v. Johnson (1980) 26 Cal.3d 557, 575-579 (Johnson).) It is not the function of the appellate court to reweigh or reinterpret evidence but to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; Johnson, supra, 26 Cal.3d at p. 576.) We reverse a conviction on the ground of insufficient evidence only if it clearly appears that "upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.) Substantial evidence is evidence that is "reasonable, credible, and of solid value." (Johnson, supra, 26 Cal.3d at p. 578.) This standard of review is equally applicable when the conviction is based on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)

There was substantial evidence that the events pertinent here occurred in the city of Merced. Officer Court's testimony describing the area where the events occurred was elicited in direct response to inquiries referring specifically to "Merced" and "the city." Although defendant quibbles with isolated pieces of testimony, when viewed in its entirety, the testimony of Officer Court and the other witnesses clearly supported the conclusion the events took place in the city of Merced, and no contrary evidence about the location of the pertinent events was presented.

Contrary to defendant's assertions, no proof was required of the fact that Merced is an incorporated city because Evidence Code section 451 applies. Evidence Code section 451 provides that "Judicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution...." This provision is commonly referred to as mandatory judicial notice. The effect is that the court is required to take judicial notice and it is not discretionary or subject to the notice provisions of Evidence Code section 452.

Government Code section 57380 provides "Courts shall take judicial notice of the organization and existence of cities incorporated pursuant to this division."

Evidence Code section 459 provides in pertinent part, "(a) The reviewing court shall take judicial notice of ... (2) each matter that ...