P. v. Gonzalez CA4/3

Filed 6/21/13 P. v. Gonzalez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, G046382

v. (Super. Ct. No. 10CF2043)

JONATHAN GONZALEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, William
R. Froeberg, Judge. Affirmed in part and reversed in part.
Thomas Owen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
 A jury convicted Jonathan Gonzalez of one count of active participation in
a criminal street gang (Pen. Code, § 186.22, subd. (a); all further statutory references are
to this code; count 5), and four counts of assault with a semiautomatic firearm (§ 245,
subd. (b); counts 6, 7, 8, 9). The jury also found Gonzalez inflicted great bodily injury in
the commission of count 6 (§ 12022.7 subd. (a)), personally used a firearm in the
commission of counts 6, 7, 8, and 9 (§ 12022.5, subd. (a)), and committed all of these
offenses for the benefit of, at the direction of, or in association with a criminal street gang
(§ 186.22, subd. (b)(1)). The jury found Gonzalez not guilty of four counts of willful,
deliberate and premeditated attempted murder (§§ 664, subd. (a), 187 subd. (a); counts 1,
2, 3, 4).
The court sentenced Gonzalez to a total prison term of 22 years consisting
of the upper term of nine years on count 6, plus a consecutive 10 years for the section
186.22, subdivision (b)(1) gang enhancement and a consecutive three years for the
section 12022.7, subdivision (a) great bodily injury enhancement. The court also
imposed concurrent terms on counts 7, 8, and 9, imposed a three-year term for count 5
and stayed it pursuant to section 654, and struck the firearm use enhancements as to
counts 6, 7, 8, and 9 for sentencing purposes pursuant to section 1170.1, subdivision (f).
Gonzalez challenges the sufficiency of the evidence to support the active
participation conviction in count 5, and the gang enhancement findings as to counts 6, 7,
8, and 9. We reverse as to count 5 only and affirm the judgment in all other respects.

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 FACTS1

1. The Shooting
On July 25, 2010, Jovanni Martinez, Anibal Alejandre, Victor Becerra, and
Raul De La Sancha walked from an apartment complex on McFadden Avenue to a
nearby 7-Eleven to buy beer and snacks. As they were making their purchases, Martinez
noticed Gonzalez near the front door. When Alejandre came out of the store, he heard
Gonzalez say, “Lopers gang.” As Martinez walked by, Gonzalez asked if he “banged.”
Martinez denied any gang affiliation. He and Gonzalez exchanged profanities before
Gonzalez pulled a semiautomatic handgun from his waistband, chambered a bullet, and
pointed the gun at Martinez‟s face. Martinez indicated there was no need for guns and
said, “That‟s why we have our hands.” Gonzalez made no reply, and Martinez and his
friends walked back toward the apartment complex.
As they arrived at the apartment complex Martinez and his friends heard
someone yell, “Lopers,” and then heard five or six gunshots. One of the bullets struck
Martinez in the back. Although Martinez claimed he did not look back to see who had
fired the shots, he identified Gonzalez from a photographic lineup as the person who
confronted him at the 7-Eleven.
Investigating officers found five spent shell casings from a semiautomatic
firearm at the scene of the shooting. They also retrieved surveillance videos from the 7-
Eleven store and from the apartment complex.

2. Gonzalez’s Pretrial Statement
Gonzalez was quickly arrested and transported to the Santa Ana Police
Department. He waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436)

1 We present the facts in the light most favorable to the judgment. (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206.)

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and agreed to talk to the two detectives investigating the case. Initially, he denied having
a confrontation with Martinez and denied being involved in the shooting. When shown
photographs taken from the 7-Eleven surveillance video, Gonzalez admitted interacting
with Martinez and his friends at the store, but claimed they challenged him by calling out
“Little Minnie,” which is the name of another Santa Ana criminal street gang. Gonzalez
claimed he ignored the challenge and went inside the store. After making his purchase,
Gonzalez said he rode his bicycle to a friend‟s home and did not ride through the area
where the shooting occurred.
After continued questioning, Gonzalez admitted riding his bicycle through
the area of the shooting and hearing gunshots, but he claimed he did not fire the shots and
said he saw two other people who might have been involved in the shooting. When
shown photographs taken from the apartment complex surveillance video, Gonzalez
admitted he fired four or five shots at Martinez and his friends, and he said he did so
because he was angry about being disrespected by them.

3. Gang Expert Testimony
At trial, Santa Ana Police Detective Roland Andrade testified as the
prosecution‟s gang expert. Andrade described the Lopers gang as one of Santa Ana‟s
many Hispanic criminal street gangs. As of July 2010, he believed the gang had well
over 50 members. The gang claimed a territory that included McFadden Avenue and
they frequented the 7-Eleven where the confrontation took place. The Lopers gang colors
are black, white, and grey, and they wear clothing in these colors to demonstrate their
gang affiliation. According to Andrade, the primary activities of Lopers are robberies
and felony assaults, including assaults with firearms.
Andrade testified that on June 15, 2006, a jury convicted Edgar Omar
Gomez of active participation in a criminal street gang and second degree murder for a
criminal street gang purpose (Gomez murder), and found true he was vicariously armed

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with a firearm and committed the murder for the benefit of the Lopers gang. These
crimes were committed on January 21, 2005 and Andrade opined Gomez was a member
of Lopers on that date.
Andrade also testified that on November 26, 2007 Francisco Roman
Salgado pleaded guilty to active participation in a criminal street gang and voluntary
manslaughter (Salgado manslaughter), and he admitted being vicariously armed with a
firearm and committing the crimes for the benefit of the Lopers gang. These crimes were
committed on July 17, 2006 and Andrade opined Gomez was a member of Lopers on that
date.
Andrade opined Gonzalez was a member of the Lopers criminal street
gang. According to Andrade, Gonzalez received a STEP2 notice two weeks before the
shooting, and he had received two other STEP notices in the preceding month. During
each of the STEP notice contacts with police, Gonzalez admitted he was a Lopers gang
member, and during one of these contacts, Gonzalez was in Lopers‟ claimed territory
wearing the gang‟s colors. Andrade said there had been a total of five police contacts
with Gonzalez between 2008 and 2010, and he was usually in the company of other
Lopers gang members.
In Andrade‟s opinion, Gonzalez committed the instant crimes for the
benefit of, at the direction of, or in association with the Lopers gang. In support of his
opinion, Andrade explained the 7-Eleven was one frequented by Lopers members as well
as members from other gangs. He believed the scuffle between Gonzalez and Martinez
and his friends was a classic gang “hit up,” with both sides announcing their gang
allegiance. Andrade opined Gonzalez shot at the group because he felt disrespected
during the hit up. He also believed Gonzalez‟s act of shooting rival gang members
engendered the respect of his fellow gang members and members of rival gangs, served

2 Street Terrorism Enforcement and Prevention Act. (§ 186.22 et seq.)

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to intimidate members of the local community, and promoted other criminal conduct by
the gang as a whole.

4. Defense
Gonzalez testified on his own behalf. He claimed he and four friends
smoked marijuana for about three hours before they decided to go to the nearby 7-Eleven
to buy “blunts” to use as marijuana cigarettes. Before leaving his apartment complex,
Gonzalez grabbed a Lopers‟ gang gun from a nearby trash can because he was worried
about getting “jumped.” He hid the gun in some bushes near the 7-Eleven and parked his
bicycle.
As Gonzalez opened the door to the store, four guys walked out. Gonzalez
recognized two of the four from his neighborhood, and he heard one of them say, “Little
Minnie.” Gonzalez said, “I‟m not from nowhere, but I hang around and kick it with
Lopers gang.” Gonzalez put his hand to his waistband, but he did not have a gun.
Martinez and his friends walked away, and Gonzlaez went into the store. When he left
the store, Gonzalez retrieved the gun, and rode his bicycle on McFadden on his way back
to his apartment complex. As he rode home, Gonzalez saw Martinez and his friends
walking down a driveway. Although he debated whether or not to use the gun, ultimately
Gonzalez decided to fire in their general direction. He said he did not intend to hurt
anyone, but fired the shots to scare them.

DISCUSSION

1. Introduction
Gonzalez challenges the sufficiency of the evidence to support the active
participation conviction in count 5 and the gang enhancement findings as to counts 6, 7,
8, and 9, because the “pattern of criminal gang activity” (§ 186.22, subd. (e)) instruction

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given to the jury did not include one of two predicate offenses relied upon by the
prosecution. He also challenges the sufficiency of the evidence to support the active
participation conviction because Gonzalez acted alone, not in association with any other
gang member.
We find the evidence sufficient to support the active participation
conviction and gang enhancement findings, notwithstanding the incomplete jury
instruction. However, the evidence is insufficient to support the active participation
conviction because Gonzalez acted alone. Therefore, we reverse as to count 5 only.

2. Pattern of Criminal Gang Activity
A pattern of criminal gang activity is an essential element of the definition
of a criminal street gang for both the active participation substantive offense under
section 186.22, subdivision (a), and the gang enhancements under section 186.22,
subdivision (b)(1). (§ 186.22, subds. (a), (b)(1), (e), (f).) “As used in this chapter,
„pattern of criminal gang activity‟ means the commission of . . . or conviction of two or
more of the following [33 specified] offenses, provided at least one of these offenses
occurred after the effective date of this chapter [September 26, 1988] and the last of those
offenses occurred within three years after a prior offense, and the offenses were
committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).) The
list of 33 specified offenses includes, “[u]nlawful homicide or manslaughter.” (§ 186.22,
subd. (e)(3).)
Here, the prosecutor introduced documents and testimony concerning the
Gomez murder and the Salgado manslaughter to establish the requisite pattern of criminal
gang activity. There is no question the Gomez murder is an “unlawful homicide” and the
Salgado manslaughter is a “manslaughter,” both within the meaning of section 186.22,
subdivision (e)(3). Furthermore, these crimes were committed by different persons, on
separate occasions, within three years of one another and after September 26, 1988.

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Thus, there is sufficient evidence of the essential elements of a pattern of criminal gang
activity.
Gonzalez seeks to avoid this inevitable conclusion by noting the list of
predicate crimes set forth in the “pattern of criminal gang activity” instruction given to
the jury included murder but omitted manslaughter.3 Based upon this omission,
Gonzalez argues the People cannot rely upon the Salgado manslaughter as a predicate
crime and, as a result, there is insufficient evidence to establish a pattern of criminal gang
activity.4
While at first blush this argument might seem plausible, a closer inspection
reveals it is based upon a faulty premise. Gonzalez would have us measure the
sufficiency of the evidence vis-à-vis the admittedly incomplete jury instruction definition
rather than the complete statutory definition of a pattern of criminal gang activity. In
essence Gonzalez seeks to use the incomplete jury instruction as a sword rather than a
shield. He cites no authority for this novel approach and we have found none.
To the contrary, “In determining whether the evidence is sufficient to
support a conviction or an enhancement, „the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.‟ [Citations.]

3 The criminal street gang definition within the CALCRIM No. 1400 active
participation instruction given states in part, “A pattern of criminal gang activity, as used
here means: [¶] 1. The commission of any combination of two or more of the following
crimes: murder, attempted murder or assault with a semiautomatic firearm . . . . ” The
CALCRIM No. 1401 gang enhancement instruction given simply states, “A criminal
street gang is defined in another instruction to which you should refer.”

4 Gonzalez points out the current offenses cannot be used as predicates because
they did not occur within three years of the Gomez murder. This point is irrelevant. The
prosecutor did not rely upon the current offenses. Instead, the prosecutor specifically
identified the Salgado murder and Gomez manslaughter as the predicate offenses.

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This standard applies to a claim of insufficiency of the evidence to support a gang
enhancement. [Citation.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Applying these principles here, we must reject the sufficiency of the
evidence challenge on this point. There is simply no question, viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of a pattern of criminal gang activity within the definition of a criminal
street gang were proven beyond a reasonable doubt for purposes of supporting both the
active participation substantive conviction under section 186.22, subdivision (a), and the
gang enhancement findings under section 186.22, subdivision (b)(1).
We disagree with Gonzalez that People v. Fiu (2008) 165 Cal.App.4th 360
requires a different result. In Fiu, the trial court instructed the jury three specific prior
offenses could be relied upon to establish a pattern of criminal gang activity. The
appellate court found two of these offenses, possession of an assault weapon (§ 12280,
subd. (b)), could not be relied upon because it is not one of the 33 qualifying crimes
specified in section 186.22, subdivision (e). (People v. Fiu, supra, 165 Cal.App.4th at
p. 387.)
The Fiu court also noted in passing the charged offenses might be
considered as predicates “but the trial court did not so instruct the jury.” (People v. Fiu,
supra, 165 Cal.App.4th at p. 387, fn. 33.) This footnote in Fiu hardly stands for the
proposition offered by Gonzalez. (People v. Castellanos (1999) 21Cal.4th 785, 799, fn. 9
[“„an opinion is not authority for a proposition not therein considered‟”].) In context, we
interpret Fiu as saying the statute trumps improper jury instructions for purposes of
evaluating predicate crimes.
Finally, while Gonzalez steadfastly denies making any instructional error
argument and even contends there was no instructional error, the Attorney General argues
the trial court “failed to correctly instruct the jury on [the pattern of criminal activity]

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element” but there was no prejudice as a result.5 We agree with the Attorney General.
There was instructional error but there was no prejudice.
To evaluate prejudice, we must assess whether the erroneous instruction is
harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 489-490,
504; Chapman v. California (1966) 386 U.S. 18.) “The test is not whether a hypothetical
jury . . . would render the same verdict in the absence of the error, but whether there is
any reasonable possibility that the error might have contributed to the conviction in this
case.” (People v. Lewis (2006) 139 Cal.App.4th 874, 887.)
In this case if the jury had followed the erroneous instruction, it could not
have found Gomez guilty of active participation or found the gang enhancements true,
because the Gomez murder as a single predicate is insufficient to establish the requisite
pattern of criminal gang activity. Two predicates are needed. But obviously the jury did
not follow the erroneous instruction. Thus, the erroneous instruction, which should have
resulted in a different verdict, did not in fact contribute to the actual verdict at all. Under
these circumstances, the erroneous instruction was harmless beyond a reasonable doubt.
In sum, whether analyzed as a sufficiency of the evidence question, or as an
instructional error, the result is the same. The omission of manslaughter from the list
predicate crimes specified in the pattern of criminal gang activity instruction given to the
jury does not warrant reversal of either the active participation conviction in count 5 or
the gang enhancement findings as to counts 6, 7, 8, and 9.

5 The Attorney General also argues Gonzalez forfeited any instructional error
claim by including it within his sufficiency of the evidence claim in violation of
California Rules of Court, rule 8.204(a)(1)(B). We elect to disregard this noncompliance,
if any, as permitted under California Rules of Court, rule 8.204(e)(2)(C).

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3. Active Participation
Gonzalez next argues there is insufficient evidence to support his active
participation conviction in count 5 because he acted alone. The California Supreme
Court recently agreed with this position. (People v. Rodriguez (2012) 55 Cal.4th 1125,
1139.) Here, it is undisputed Gonzalez acted alone when he fired at Martinez and his
friends, hitting Martinez in the back with one of the bullets. We are compelled to follow
Rodriguez (Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and
therefore reverse Gonzalez‟s conviction for active participation.

DISPOSITION

The active participation conviction in count 5 is reversed and the sentence
is stricken. This disposition does not change the total prison time imposed because
sentencing on count 5 was stayed under section 654. The clerk of the superior court is
directed to amend the abstract of judgment and forward a copy to the Department of
Corrections and Rehabilitation. The judgment is affirmed in all other respects.

THOMPSON, J.

WE CONCUR:

O‟LEARY, P. J.

BEDSWORTH, J.

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