People v. Saucedo

THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN DAGOBERTO SAUCEDO, Defendant and Appellant.

B302706

California Court of Appeals, Second District, Third Division

July 30, 2021

NOT TO BE PUBLISHED

Order Filed Date: 8/25/21

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA430049, James R. Dabney, Judge. Affirmed in part and reversed in part; remanded for further proceedings.

Richard D. Miggins, under appointment by the Court of Appeal for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

It is ordered that the opinion in this matter filed on July 30 2021, is modified as follows:

1. On page 46, insert the word “perhaps” between “could” and “have, ” so that the sentence reads:

This circumstance could perhaps have established that Tovar was carrying a concealed firearm in violation of section 25400 an offense which is one of the enumerated crimes in section 186.22, subdivision (e).

2. On page 46, at the end of the first full paragraph that begins with the sentence “Nor can the People rely on the fact Saucedo admittedly knew Tovar was an MS-13 gang member, and had a firearm concealed in the truck, under the seat” add the following text to the existing paragraph:

More significantly, it is unclear how the jury would have known that firearm possession under these circumstances amounted to a crime. No evidence or instruction was offered on this issue. The prosecutor briefly argued that the firearm was possessed illegally, but-as the jury was instructed-an attorney's argument is not evidence. (CALCRIM Nos. 222 [“Nothing that the attorneys say is evidence”]; 200 [jury must decide what the facts are based only on the evidence presented at trial].) While it may be unlikely that a group of MS-13 gang members would be in lawful possession of a firearm under these circumstances, this mere assumption is not evidence.

3. On page 47, before the paragraph that begins with the sentence “Because the evidence was insufficient, the conviction must be reversed and the matter remanded for a full resentencing, ” insert the following new paragraphs:

In a petition for rehearing, the People argue that this analysis is contrary to People v. Castenada (2000) 23 Cal.4th 743 and People v. Carr, supra, 190 Cal.App.4th 475. Those cases, the People assert, “hold that section 182.5 does not require knowledge of specific types of predicate offenses to satisfy the element that appellant knew of the gang's pattern of criminal activity.”

Apart from the fact that the People neglected to mention either case in their original brief, these authorities do not stand for the proposition the People assert. Neither case addressed section 182.5. At issue in Castenada was the substantive crime of active gang participation pursuant to section 186.22, subdivision (a). Like section 182.5, section 186.22, subdivision (a) requires as an element that the perpetrator know of the gang's pattern of criminal gang activity. (§ 186.22, subd. (a).) But Castenada did not address the knowledge element; instead, it considered the requirements of the “active participation” element of the crime. (See Castenada, at p. 746 [“At issue here is the meaning of... ‘actively participates.' ”].) The court concluded that the evidence was sufficient to show the defendant's gang involvement was “more than nominal or passive.” (Id. at pp. 752-753.) It did not consider whether the evidence was sufficient to prove the knowledge requirement. Cases are not authority for propositions not considered (People v. Baker (2021) 10 Cal.5th 1044, 1109), and Castenada does not assist the People.

People v. Carr considered the sufficiency of the evidence to prove a section 190.2, subdivision (a)(22) special circumstance. Section 190.2, subdivision (a)(22) provides for death or life imprisonment without the possibility of parole if the “defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of section 186.22, and the murder was carried out to further the activities of the criminal street gang.” The trial court gave CALCRIM No. 736, which included a requirement that the defendant knew the members of the gang engaged in a pattern of criminal gang activity. (People v. Carr, supra, 190 Cal.App.4that p. 486.) Carr held that, despite the instruction's language, “on its face section 190.2, subdivision (a)(22), does not expressly impose a knowledge requirement. Instead, the wording of this provision requires only that the People prove Carr was an active participant in a criminal street gang when he murdered [the victims] and that the murders were carried out to further the activities of the gang.” (Ibid.) “Based purely on the statutory language... the People need not separately prove a defendant's subjective knowledge of the criminal activities of his or her fellow gang members to establish the section 190.2, subdivision (a)(22), special circumstance.” (Id. at p. 487.)

Nonetheless, the court reasoned, as a matter of due process, before a defendant can be penalized for being an active participant in a criminal organization, it must be shown he knew of the “gang's criminal purposes.” (People v. Carr, supra, 190 Cal.App.4th at p. 487.) In that context, the evidence was sufficient to prove he knew of the gang's “criminal activities.” (Id. at p. 488.) He had admitted his membership in the Rollin' 20's Bloods gang, and been contacted by police in the company of another gang member. There was an ongoing feud between his gang and the Eastside 20's that was reflected in local graffiti and had resulted in several shootings in the previous two years; he had a tattoo “proclaiming the Bloods over the Eastside 20's”; and he had been convicted of possessing cocaine base for sale. (Id. at p. 489.) This evidence “was more than sufficient for the jury to infer Carr knew about the criminal activities” of the gang. (Id. at pp. 489-490.) In a footnote, upon which the People here place much emphasis, the court construed the language used in CALCRIM No. 736-that the defendant knew that members of a gang engaged in or have engaged in a pattern of criminal gang activity-to “correlate to the active membership test described” in Scales v. United States (1961) 367 U.S. 203, i.e., “ ‘ “guilty knowledge and intent” of the organization's criminal purposes,' ” and did “not require a defendant's subjective knowledge of particular crimes committed by gang members....” (Carr, at p. 488, fn. 13.)

As is readily apparent, Carr was not concerned with the language of section 182.5, which-unlike section 190.2, subdivision (a)(22)-expressly requires that the defendant have “knowledge that [the gang's] members engage in or have engaged in a pattern of criminal gang activity, as defined in subdivision (e) of Section 186.22.” (Italics added.) Instead, Carr considered the type of knowledge necessary to satisfy due process, rather than a specific statutory requirement. Its holding, therefore, cannot be grafted onto interpretation of section 182.5.

Indeed, if reference to statutes other than section 182.5 is useful, People v. Robles (2000) 23 Cal.4th 1106, provides a superior analogy. There, the court considered former section 12031, subdivision (a)(2)(C), which elevated the misdemeanor offense of carrying a loaded firearm in public to a felony when committed by an “ ‘active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22[.]” (Id. at p. 1109.) Because section 186.22, subdivision (a) did not actually define “active participant in a criminal street gang, ” the question in Robles was whether former section 12031 simply required a showing of the “active participation” element of the section 186.22, subdivision (a) offense, or whether it required proof of all elements of that crime. (Robles, at pp. 1111-1112, 1114.) Robles concluded the latter. (Id. at p. 1115.)

At Robles's preliminary hearing, the People presented evidence that he had been observed standing with a group of persons wearing gang attire and threw a gun into a planter. He thereafter admitted to his gang membership in the La Mirada Locos. A detective testified that members of that gang had committed a series of armed robberies a month before defendant's arrest, and the previous year two members of the gang had stabbed a high school student on a bus. The detective had no reason to believe defendant knew of these incidents. (People v. Robles, supra, 23 Cal.4th at pp. 1109-1110.) Robles found this evidence insufficient. The court reasoned: “At defendant's preliminary hearing on the felony charge of carrying a loaded firearm in public, the prosecution presented evidence that defendant was a member of a criminal street gang, La Mirada Locos. But the prosecution presented no evidence of the other requirements of section 186.22(a): ‘knowledge that its members engage in or have engaged in a pattern of criminal gang activity' and ‘willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.' (§ 186.22(a).) Accordingly, as the magistrate at the preliminary hearing ruled, the prosecution failed to establish the requirement in section 12031(a)(2)(C), under which defendant was charged, that defendant was ‘an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22.' ” (Robles, at p. 1115.)

Thus under Robles, the facts that a defendant is a gang member and the gang recently committed crimes are not...