People v. Roman CA6 ( 2021 )

Filed 3/10/21 P. v. Roman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H046210
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 214496)
v.
CARLOS ROMAN,
Defendant and Appellant.
A multi–agency investigation into drug sales and other crimes committed in San
Jose by Norteño criminal street gangs, operating under the umbrella of the Nuestra
Familia (NF) prison gang, led to the indictment of appellant Carlos Roman, among
others. Roman was convicted by a jury of participating in a criminal street gang,
conspiracy to sell methamphetamine, and possession of methamphetamine for sale. The
jury also found true allegations that Roman committed both the conspiracy and
possession for sale offenses in order to benefit a criminal street gang. The trial court
sentenced Roman to a total term of 19 years in state prison.
On appeal, Roman argues insufficient evidence supports his convictions for
participating in a criminal street gang and conspiracy to sell methamphetamine, as well as
the finding that he conspired to sell drugs in order to benefit a criminal street gang. He
further contends that the matter must be remanded for the trial court to exercise its
discretion whether to strike the prior serious felony enhancements in light of Senate Bill
No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393).
For the reasons explained below, we reject Roman’s contentions of insufficient
evidence. Nevertheless, we reverse the judgment and remand the case to allow the trial
court to exercise its discretion whether to strike the prior serious felony enhancements
under Penal Code sections 667, subdivision (a),1 and 1385. On remand, the trial court
should also consider whether Roman is entitled to the benefit of Senate Bill No. 136
(2019-2020 Reg. Sess.) (Senate Bill 136).2
I. FACTS AND PROCEDURAL BACKGROUND
A. Indictment
Roman was charged, along with 23 codefendants, in a third amended indictment
filed in Santa Clara County Superior Court on December 11, 2017.3 Specifically, Roman
was charged with participating in a criminal street gang (§ 186.22, subd. (a); count 1),
conspiracy to sell methamphetamine, with a special allegation that the quantity involved
exceeded one kilogram (§ 182, subd. (a)(1), Health & Saf. Code, §§ 11379, subd. (a),
11370.4, subd. (b); count 12), and possession of methamphetamine for sale (Health &
Saf. Code, § 11378; count 26).4 With respect to counts 12 and 26, the indictment alleged
that Roman committed these offenses for the benefit of a criminal street gang within the
1
Unspecified statutory references are to the Penal Code.
2
Senate Bill 136, effective Jan. 1, 2020, amended section 667.5, subdivision (b),
to limit prior prison term enhancements to only prior terms that were served for sexually
violent offenses as defined by Welfare and Institutions Code section 6600, subdivision
(b). (§ 667.5, subd. (b); Stats. 2019, ch. 590, § 1; People v. Lopez (2019) 42 Cal.App.5th
337, 340–341.)
3
Roman was tried with one codefendant, James Gonzalez. Another codefendant,
Jacob Dominguez, pleaded guilty and became a cooperating witness. The record on
appeal does not indicate the disposition of the cases against the remaining 21
codefendants.
4
The indictment also charged Roman with unlawful possession of a firearm by a
felon (§ 29800, subd. (a)(1); count 27), but the district attorney dismissed that charge
prior to trial.
2
meaning of section 186.22, subdivision (b)(1)(A). The indictment further alleged that
Roman had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), two
prior serious felony convictions (§ 667, subd. (a)) and five prison prior convictions
(§ 667.5, subd. (b)).
B. Trial
1. Gang expert testimony
Detective Justin Harper, the lead investigator in the case against Roman, was
assigned to the “multi-agency task force to conduct gang investigations [] headed up by
the FBI.” Harper also testified in Roman’s trial as an expert in “criminal street gangs, the
Nuestra Familia, controlled substance recognition, usable amounts of controlled
substances, and sales of controlled substances.” According to Harper, the NF formed
within the California prison system in the mid–1960s to protect “other Mexican nationals,
Mexican/Americans [sic]” from being victimized by the Mexican Mafia, a prison gang
formed by Mexican nationals in the late 1950s.
While the organizational structure of the NF has changed over the years, everyone
within the gang during the relevant time period was considered a Norteño regardless of
rank. The highest–ranking NF members were referred to as “generals” or “carnals,” and
the second highest rank were “N-Sols” also referred to as a “bro” or “hermano.”
Whereas carnals had a lifetime commitment “to operate in [] and out of custody” for the
NF, N-Sols were only required to operate for the NF when in custody. When out of
custody, an N-Sol could choose not to operate for the NF, but even then it was still
“highly suggested” that they support two NF members in custody.5 If an N-Sol failed to
support two incarcerated members while he was out on the streets, the NF would “use
that as a determination as to whether” the N-Sol was in “good standing” if returned to
custody.
5
According to Harper, “support” means “[m]onetary contributions” and “however
[the incarcerated members] need” support.
3
The carnals “put[] people in place out on the streets … to bring all the Norteño
criminal street gangs within [a] region [] under the NF umbrella.” Individual Norteño
gangs in the region were required to pay a monthly tax of $200 or $250 to the “street
regiment.” The street regiment also imposed a 25% tax on all illegal activity within their
region. The money generated from all these taxes was placed in a “regiment bank” and
“reinvest[ed] [] into guns, into drugs, and other illegal endeavors to make a profit.”
Ultimately, the profits were “funnel[ed] [] back into the county jails and the state prison
system,” to support the carnals, along with “contraband, narcotics[, and] … cell phones,
so that the carnals could have open lines of communication out on the streets.” Harper
testified that there were “probably more than 100 [Norteño street gangs] … within San
Jose,” all of which the NF sought to control. The San Jose gangs fell under the authority
of the NF street regiment assigned to Santa Clara County.
Street regiments were “made up of trusted members from multiple different
Norteño gangs.” Some street regiment members had never previously belonged to a gang
but began operating under the NF umbrella after they were incarcerated. In addition to
collecting taxes, street regiments “were responsible for carrying out any NF directives
within a geographical region, investigating red–on–red violence, disputes between gangs,
[and] collecting incident reports from anybody on the streets that was being
investigated.” The regiment would report monthly on “who was in line, which Norteño
gangs were actually paying their taxes, which weren’t, [and] who was giving them
problems.” The reports, initially sent into the county jails, were reviewed there and then
“routed … back into Pelican Bay”6 for “decisions to be made and handed down.” These
reports, and other written communication between incarcerated gang members, consisted
of microwriting on strips of paper which were rolled up tightly (also referred to as
One of the three NF carnals who was directly responsible for “investigation and
6
enforcement” was housed in Pelican Bay.
4
“kites”), wrapped in plastic and secreted in a body cavity to be passed from one inmate to
another.
2. Cooperating witness testimony
Roman’s jury heard the testimony of five witnesses, each of whom had been part
of the NF before cooperating with law enforcement. The witnesses had pleaded guilty to
charges brought against them. Each was facing a lengthy prison term but had received no
guarantees of leniency in sentencing in exchange for his testimony.
a. Ulises Jimenez
Jimenez testified that at the time of his arrest in 2014 he was the NF street
regiment commander for Santa Clara County.7 As the commander, he was responsible
for ensuring that the street gangs within his jurisdiction paid their monthly tax, as well as
the taxes on drug sales and other illegal activities in the region. Jimenez also supplied the
local street gangs with drugs to sell, thereby making money both off that initial sale to the
gangs and off the 25% tax the NF levied on the drugs sold by the gangs to users. If a
gang failed to pay its taxes, Jimenez would initially try to “educate” the leaders of the
gang and persuade them that “ ‘we could all make money.’ ” Jimenez tried to avoid
resorting to violence but would do so if necessary to get a gang to “fall in line.”
Jimenez’s regiment sold a variety of illegal drugs, but methamphetamine sales
were the “main source of revenue for the regiment.” Although Jimenez preferred that
street gang members within his jurisdiction sell the drugs he supplied, he testified they
could “sell for whoever they want to sell for.” He did not have a problem with gang
members selling drugs from other suppliers, as long as those members otherwise
followed the rules and paid taxes on the NF drugs they sold. Street gang members only
paid taxes on NF drugs they sold, not on drugs they obtained from another source.
7
Jimenez testified under a grant of immunity and was qualified to testify as an
expert “in the field of knowledge about the NF and Northeners and their function.”
5
Jimenez knew Roman from their incarceration together in the county jail, but
Roman was not part of the regiment and was not collecting taxes for the NF. Jimenez
had spoken to Roman by phone one time before they met in jail, and Jimenez said he
“wanted to meet up with [Roman] because of some other issues that happened with … his
wife and my wife.”8 Roman did not have and never has had a gang moniker, but he did
socialize with Frank Cruz, who was part of Jimenez’s regiment. Jimenez testified at trial
that Roman never tried to join his regiment, but Jimenez also testified that he believed
“that the police were looking at [Roman].” He was concerned that the police “might be
listening to phone calls that [] Roman was involved in.”
b. Aaron Mendoza
Mendoza testified under a grant of immunity. He became involved with the
Norteño gang in his neighborhood at an early age, but only started getting “hands-on
training” in the NF structure when he was sent to state prison in 2005. Mendoza testified
that it was “expected of every northern Hispanic [in prison] to partake in all functions and
all aspects that’s being handed down” by the NF. It was important to remain in “good
standing” with the NF, because otherwise you could get “removed, face sliced, get
stabbed, … just various things.” There were various ways one could be considered in
“bad standing[],” either while incarcerated or out “on the street.” Failing to pay “hood
taxes,” whether it be the monthly $200 tax payable to the street gang or taxes on illegal
activities, would put a gang and/or its members in bad standing which could eventually
result in physical violence for not fulfilling their responsibilities to the NF. Whenever a
gang member is incarcerated, they are immediately “placed on freeze” so the NF can
investigate whether they are in good standing.
8
On cross-examination, Jimenez testified that Roman’s “wife … or an ex-wife”
was involved in a bar fight with Jimenez’s wife, and Jimenez wanted to “communicate
[with Roman] to make sure that everything was smoothed out.”
6
Mendoza was “pulled as a Norteño” after returning to prison on a parole violation
in 2006 or 2007. That meant Mendoza had rank within the organization and, upon his
release from prison in 2013, he was tasked with overseeing the “street regiment in Santa
Clara County” with the title of regiment leader. He was responsible for establishing
crews to ensure that money was generated and distributed to the NF members in the
region. Mendoza worked “hand in hand” with Jimenez, who had also been directed to
run the street regiment for Santa Clara County by a different carnal,9 for a few months
until Mendoza was arrested again while in possession of kites, guns, and drugs.
c. Jacob Dominguez
Dominguez testified that while he was in custody, at one point he shared a holding
cell with Roman’s codefendant, Gonzalez. In that cell, Gonzalez showed Dominguez a
copy of a police report which included statements that Roman, among others, had made
to the police. Gonzalez said that Roman was a “snitch” and Dominguez knew that
Gonzalez tried to get “charges brought against [] Roman” by the NF for talking to the
police.
On cross-examination, Dominguez said that Gonzalez was also upset with Roman
because of a “dispute between women between the two of them.” However, the
argument between Gonzalez and Roman about a girl took place in a holding cell prior to
the time that Gonzalez showed Dominguez the police report reflecting Roman’s
interview with police.
d. Josh Morreira
Morreira grew up in South San Jose and first started getting involved with a local
Norteño gang in fifth or sixth grade. He was “pulled” as an N-Sol in 2008.
9
According to Mendoza, his authority to run the Santa Clara County regiment
came from “NF leaders in Pelican Bay,” and Jimenez got his authority from “NF
members that were in Corcoran.” Mendoza said it was not unusual to have two people
working as regiment commander, and his main concern was “to ensure that money and
things [] are being distributed in the right places.”
7
In December 2013, Morreira was due to be released from county jail. He received
instructions from the NF authority in charge of the jail to reach out to Jimenez and place
him on “investigational freeze,” pending verification that he was authorized to run the
street regiment for Santa Clara County. Morreira was also instructed to establish a street
regiment for San Jose. Before he met with Jimenez, however, Morreira independently
confirmed Jimenez’s authority to run the Santa Clara County regiment. Morreira began
working with Jimenez at that point, rather than challenging him over control of the
regiment.
A few months later, however, Jimenez was arrested, and Morreira learned he had
been placed in protective custody, which was an indication that Jimenez might be
cooperating with law enforcement. Morreira was instructed to re-establish the regiment
but not to use any gang members who had worked with Jimenez. Morreira directed two
other gang members to resume collecting taxes from the street gangs.
Morreira was also selling methamphetamine for the regiment, ultimately selling a
half a pound to a full pound a week. He estimated that his profits were $200 per ounce,
so a pound of methamphetamine generated $3,200 in profit. Morreira testified that it was
possible to sell non-NF drugs and not pay a percentage on those sales to the NF, but only
so long as you remained “ ‘off the radar.’ ” Once the NF learned what you were doing,
“you’re going to get approached” and would have to pay “freelance taxes” to the NF.
Morreira did not know Roman before getting involved in the present case and had
“barely met him when … in custody.” However, Morreira did tell one of the gang
members he was working with, Raymond Garcia, that Garcia should stay away from
Roman. On cross-examination, Morreira said that the reason he told Garcia to stay away
from Roman was not based on “personal knowledge” of Roman but was “based on some
kind of hearsay or rumor.” Morreira was not asked and did not elaborate further on the
“hearsay or rumor” behind his warning to Garcia.
8
e. Albert Lee
Lee testified that he was 12 years old when he was introduced to the gang lifestyle
by his cousin, who ran the neighborhood Norteño gang in East San Jose. He hung out
with gang members for many years but was only officially “ ‘jumped in’ ” when he was
28. Even before he was jumped in, Lee was selling methamphetamine that he obtained
from a gang member “off and on.” Lee testified that a Northern gang member could sell
drugs obtained from non-NF sources as long as they paid taxes on those sales to the NF.
In his experience, one can be “considered a Northerner but also [] get[] in trouble for not
falling in line or not paying taxes.”
3. Harper’s expert testimony and opinion on Roman’s participation in a
criminal street gang
Detective Harper interviewed Roman after his arrest on the indictment. In that
interview, Roman admitted buying methamphetamine from someone he knew was a
member of an NF street regiment, though he only learned of that person’s NF
involvement after he started dealing with him. In response to a hypothetical question,
Harper testified that in his expert opinion “a hypothetical person, who knowingly sells
methamphetamine from the NF, do[es] so with the specific intent to promote, further, or
assist criminal conduct by gang members[,] [¶] [so long as the hypothetical person]
ha[s] an understanding of how the NF works and how purchasing quantities of
methamphetamine from NF drug dealers and where those financial contributions are
going.” According to Harper, a person who has no knowledge about the NF or criminal
street gangs could conceivably buy drugs from an NF source and not have the “intent to
promote or further that gang.” However, a person who has such knowledge, “who
knowingly sells methamphetamine from the NF but also sells methamphetamine that he
gets from other sources” is still selling methamphetamine he obtained from the NF “with
the specific intent to promote, further, or assist criminal conduct by gang members.”
9
In his interview with Detective Harper, Roman admitted he was in contact with
Lorenzo Guzman, an NF carnal, via a contraband cellphone that Guzman possessed while
in custody. Roman also stated that he put other people in contact with Guzman. At the
house where Roman was arrested, police discovered a cellphone with Roman’s name
scratched on the cover that contained a number of telephone contacts in common with
contacts stored in Guzman’s contraband cellphone.10 Harper testified that Roman had
previously been convicted, along with Guzman, of “conspiracy with a gang
enhancement.” In Harper’s expert opinion, “[i]f a hypothetical gang member was putting
gang members who were out on the street in touch with an imprisoned NF carnal” that
person would be “willfully promoting, furthering, or assisting in felonious criminal
conduct by members of that gang.” Roman had several gang tattoos, including
“ ‘Norte’ ” across his stomach, “ ‘San Jo’ ” across his shoulder blades, and male and
female clown faces on his chest. The male clown is depicted wearing a baseball cap with
“ ‘ES Hoods’ ” written on it, and Harper explained that was an abbreviation for “ ‘East
Side Hoods,’ ” a Norteño street gang which Roman was “part of when he was younger.”
Harper also testified that Roman admitted being “sent a kite asking [] whether or
not he wanted to function” when he was out of custody. To Harper, this indicated that
Roman had been “pulled” at some point as a “bro” or “N-Sol.” Harper testified that
“once you’re elevated to an N-Sol or bro status, it comes with a lifetime commitment to
function behind the walls, but an optional commitment to function on the streets.”
Regardless, if an N-Sol decides to commit offenses on the street, they are obligated to
“do so under the purview of the NF and pay taxes and contributions.” The NF would not
accept an N-Sol operating independently on the streets.
10
In that house, police also discovered a “camouflage-patterned ballistics vest,”
which was identical to a ballistics vest seized at the home of Raymond Garcia. Harper
testified that “[m]ilitary body armor is kind of rare” and in his opinion the fact that
Roman and Garcia were associated with identical body armor was more evidence of
Roman’s active participation in a criminal street gang.
10
Although Roman was “green-lit”11 during this case, Harper did not believe that
meant he was not a Norteño gang member, because members can be “green-lit for any
number of reasons.” On cross-examination, Harper acknowledged that he had not seen
Roman’s name mentioned in any of the kites seized from various gang members in this
case.
In Harper’s expert opinion, Roman was actively participating in the Norteño gang
from January 1, 2013 to October 30, 2014, the dates covered by the charges against him.
C. Verdict and sentencing
The jury found Roman guilty of participating in a criminal street gang (count 1),
conspiracy to sell methamphetamine (count 12), and possession of methamphetamine for
sale (count 26). The jury also found true the allegations that Roman committed counts 12
and 26 for the benefit of a criminal street gang. The jury found not true the special
allegation that the quantity of methamphetamine involved in count 12 exceeded one
kilogram by weight.
Following the trial, Roman admitted the allegations that he had two prior strike
convictions (§§ 667, subds. (b)-(i), 1170.12), two prior serious felony (§ 667, subd. (a)),
and two12 prior prison convictions(§ 667.5, subd. (b)).
At the July 20, 2019 sentencing hearing, the trial court granted Roman’s Romero13
motion in part, dismissing one of his two strike priors. The court then sentenced Roman
to an aggregate term of 19 years in state prison, consisting of the upper base term of four
years on the conspiracy conviction in count 12 (doubled to eight years due to the
remaining strike prior) plus two consecutive five-year terms for the two prior serious
11
According to Harper, someone is “green-lit” by the NF if they are “targeted by
the organization for assault, removal, [or] murder.”
12
Although the third amended indictment alleges that Roman had five prison prior
convictions, we found nothing in the record explaining the disposition of the three other
prison prior allegations.
13
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
11
felony convictions (§ 667, subd. (a)) plus a consecutive one-year term (one-third the
middle term of three years) on a separate case.14 The court struck the gang enhancement
(§ 186.22, subd. (b)(1)(a)) on count 12 pursuant to section 186.22, subdivision (g). The
court imposed and stayed a six-year term (twice the upper term of three years) on count 1
and a 16-month term (one-third the middle term of two years, doubled due to the
remaining strike) on count 26 under section 654. Finally, the court imposed and stayed
the one-year prior prison term enhancements on counts 1 and 26 pursuant to People v.
Jones (1993) 5 Cal.4th 1142.
The trial court imposed a total restitution fine of $600 (§ 1202.4, subd. (b)) and
imposed, but suspended, a parole revocation restitution fine of $600 (§ 1202.45).15 The
court further ordered Roman to pay a court operations assessment of $16016 (§ 1465.8), a
criminal conviction assessment of $12017 (Gov. Code, § 70373), a criminal justice fee of
$129.75 payable to the City of San Jose in the underlying case (Gov. Code, §§ 29550,
29550.1, 29550.2), a criminal justice fee of $259.50 payable to Santa Clara County in
docket No. C1772001 (Gov. Code, §§ 29550, 29550.1, 29550.2), a drug program fine of
$150 (penalty assessment waived) (Health & Saf. Code, § 11372.7), and a crime lab fine
of $50 (penalty assessment waived) (Health & Saf. Code, § 11372.5). Finally, the court
awarded total credits of 2,676 days, consisting of 1,338 days of custody credits plus 1,338
days of conduct credits pursuant to section 4019.
Roman timely appealed.
14
In that case, Santa Clara County Superior Court case No. C1772001, Roman
was charged with possession of a controlled substance while incarcerated (§ 4573.6). At
the change-of-plea hearing in the instant case, in which he admitted the various prior
conviction allegations, Roman pleaded no contest to the charge in case No. C1772001.
15
$400 in the underlying case and $200 in case No. C1772001.
16
$120 in the underlying case and $40 in case No. C1772001.
17
$90 in the underlying case and $30 in case No. C1772001.
12
II. DISCUSSION
A. Sufficiency of the Evidence
Roman argues that his convictions for participating in a criminal street gang and
conspiracy to sell methamphetamine, as well as the jury’s finding on the criminal street
gang enhancement allegations, must be reversed because the prosecution failed to present
sufficient evidence to support those verdicts at trial. We disagree.
1. Standard of review
“In addressing a claim of insufficient evidence to support a conviction, this court
‘ “reviews the entire record in the light most favorable to the prosecution to determine
whether it contains evidence that is reasonable, credible, and of solid value, from which a
rational trier of fact could find the defendant guilty beyond a reasonable doubt.” ’
[Citation.] ‘We presume every fact in support of the judgment the trier of fact could have
reasonably deduced from the evidence. [Citation.] If the circumstances reasonably
justify the trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary finding.’ ”
(People v. Jackson (2016) 1 Cal.5th 269, 345 (Jackson).) We do not reweigh the
evidence or resolve conflicts in the testimony when determining its legal sufficiency.
(People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).)
The standard of review for addressing a claim that there was insufficient evidence
to support a sentencing enhancement is the same as for a criminal conviction. “[W]e
review the entire record in the light most favorable to the judgment to determine whether
it contains substantial evidence—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, 60 (Albillar).)
“Resolution of conflicts and inconsistencies in the testimony is the exclusive province of
the trier of fact.” (Young, supra, 34 Cal.4th at p. 1181.)
13
2. Substantive gang offense
“The elements of the gang participation offense in section 186.22[, subdivision]
(a) are: First, active participation in a criminal street gang, in the sense of participation
that is more than nominal or passive; second, knowledge that the gang’s members engage
in or have engaged in a pattern of criminal gang activity; and third, the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.”
(People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) “[T]o satisfy the third element, a
defendant must willfully advance, encourage, contribute to, or help members of his gang
commit felonious criminal conduct. The plain meaning of section 186.22[, subdivision]
(a) requires that felonious criminal conduct be committed by at least two gang members,
one of whom can include the defendant if he is a gang member. (See § 186.22, subd.
(i).)” (Id. at p. 1132.)
Roman argues that this conviction must be overturned because the prosecution
failed to present sufficient evidence to show that he “ ‘was a functioning member of a
gang during the relevant period of time.’ ” We disagree that the jury heard insufficient
evidence to convict Roman of count 1. Detective Harper recounted the evidence
supporting his opinion that Roman was “actively participating in the Norteño gang” when
he committed the offenses at issue. Harper’s expert opinion, based on his lengthy,
substantive experience in gang investigations, as well as his direct involvement in the
multi-agency investigation that led to the charges against Roman, is substantial evidence
to support the jury’s verdict. (See Albillar, supra, 51 Cal.4th at p. 63.)
In addition, there was evidence that Roman, during his most recent incarceration,
had been “pulled” as an N-Sol.18 Roman correctly notes that there was testimony that an
18
The evidence on this was not conclusive, and Harper testified that he did not
have any “independent confirmation” that Roman was an N-Sol. However, Roman
himself acknowledges that N-Sols can choose whether to function as part of the gang
while out of custody to support his claim that he was not an active participant.
14
N-Sol, unlike a carnal, could choose whether to operate for the gang while out of custody
and that choice was generally respected within the NF. However, Harper testified that
the NF requires that all out-of-custody N-Sols support two incarcerated gang members,
regardless of whether the N-Sol is then functioning as a member in the eyes of the NF.
An N-Sol who fails to provide such support, which could be money or other assistance,
could be found to not be in good standing upon their return to custody. Accordingly, the
evidence of Roman’s status as an N-Sol, at best, cuts both ways on the question of
whether he was actively participating in the gang. He may have chosen not to function,
but still fulfilled his obligations to support incarcerated NF members, in which case he
was an active participant within the meaning of section 186.22. Or, he may have chosen
not to function and decided not to provide support to incarcerated members—despite the
risk of retaliation—in which case he was not an active participant. Based on the evidence
before it, the jury was entitled to conclude that Roman was functioning within the gang,
even if only by supporting incarcerated NF members, and we cannot reverse the
judgment merely because “ ‘the circumstances might also reasonably be reconciled with a
contrary finding.’ ” (Jackson, supra, 1 Cal.5th at p. 345.)
Roman’s admission that he remained in contact, via a contraband cellphone, with
Guzman, an incarcerated NF carnal, provides even more significant evidence of his active
participation in the criminal street gang. While Roman points to some evidence that his
telephone contacts with Guzman simply involved collecting a debt for a vehicle that
another gang member owed to Roman, Roman also admitted that he put other individuals
in contact with Guzman. When authorities searched Guzman’s phone, certain phone
contacts matched up with phone numbers found in Roman’s phone. Based on the totality
of this evidence, it was reasonable for the jury to conclude that Roman’s contacts with
Guzman were focused not solely on securing repayment to Roman for a vehicle, but
Accordingly, the jury was entitled to conclude that he was, in fact, “pulled” as an N-Sol
in prison.
15
instead extended to gang business. Guzman and Roman could have discussed such
mundane issues as a vehicle debt on a jail telephone call, which would of course be
monitored and recorded. The jury could have reasonably concluded that Guzman would
reserve the use of his contraband cellphone for official gang business and other illicit
activity, thereby completely avoiding the prison’s monitoring and recording system. That
Roman and Guzman had previously been jointly tried and convicted of “conspiracy with
a gang enhancement” provides further evidence supporting Roman’s conviction of count
1.
Next, Roman argues that the evidence of his having been disciplined by the gang
shows that he was not actively participating, but rather was being punished for not
participating. Like the evidence of Roman’s status as an N-Sol, this evidence cuts both
ways. Roman could have been disciplined because he was selling non-NF drugs and not
paying taxes. In that case, his actions would not amount to active participation.
However, Roman could have been disciplined because he was actively participating in
the gang, selling NF drugs, but also selling non-NF drugs on the side and not paying
taxes. It was within the jury’s exclusive provenance to evaluate the evidence and resolve
this question against Roman. (People v. Breverman (1998) 19 Cal.4th 142, 162.)
More compelling evidence of Roman’s active participation in the gang came from
Roman’s interview with Detective Harper, in which Roman surmised that he was indicted
for gang offenses because the person he was “getting dope from” was “gang-related or
whatever.” When Harper asked Roman if he knew the person he bought drugs from was
“operating in the reg[iment],” Roman said he did not know “[a]t the time.” Roman
admitted discovering his supplier’s gang affiliation “a little after [he] started dealing with
him.”
Roman’s admissions give rise to at least two reasonable inferences. First,
although Roman did not know at first that his supplier was operating in the regiment, he
nevertheless continued to purchase drugs from him even after he became aware of that
16
fact. Second, Roman’s admission that he knew his supplier was operating “in” the
regiment implies that at least some of the drugs he purchased were NF drugs. Although
Roman argues on appeal, as he did at trial, that there was some evidence his supplier may
have been freelancing and selling him non-NF drugs, the jury could reasonably conclude
that Roman’s admissions meant that he knew he was buying some NF drugs from a
Norteño gang member. As an N-Sol, Roman had to know that those purchases were
actively benefiting the NF.
Based on this evidence, and drawing all inferences in favor of the verdict, we
conclude substantial evidence supports Roman’s conviction for participating in a criminal
street gang.
3. Criminal street gang enhancement allegation
“The substantial evidence standard of review applies to section 186.22 gang
enhancements.” (People v. Augborne (2002) 104 Cal.App.4th 362, 371.) “To prove a
gang allegation, an expert witness may testify about criminal street gangs.” (People v.
Romero (2006) 140 Cal.App.4th 15, 18.) “The crucial element [of a gang allegation]
requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in
association with a gang. Thus, the typical close case is one in which one gang member,
acting alone, commits a crime.” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)
“Commission of a crime in concert with known gang members is substantial evidence
which supports the inference that the defendant acted with the specific intent to promote,
further or assist gang members in the commission of the crime.” (People v. Villalobos
(2006) 145 Cal.App.4th 310, 322.)
Roman repeats his argument that there was not sufficient evidence to support the
gang enhancement allegations because there was some evidence to show that his supplier,
though a regiment member, may have been freelancing and selling non-NF drugs to
Roman. Thus, according to Roman, the jury had no rational basis to conclude that
Roman’s drug sales were actively promoting a criminal street gang. Again, we disagree.
17
As discussed above, the jury was presented with substantial evidence that Roman
was actively participating in the gang at the time he was selling methamphetamine. He
remained in contact with Guzman, an NF carnal, via Guzman’s contraband cellphone and
put other people in contact with Guzman. Searches of Roman’s cellphone and Guzman’s
contraband phone disclosed that they had several common telephone contacts stored in
their respective phones.
Roman also admitted that at least some of the methamphetamine he sold was
acquired from someone he knew was operating in the street regiment. As an N-Sol,
Roman understood any NF drugs he sold would benefit the NF. By selling drugs he
obtained from someone he knew was a gang member, Roman was directly assisting
criminal conduct by gang members. This evidence is sufficient to support the jury’s
findings on the criminal street gang enhancement allegations.
4. Conspiracy to sell methamphetamine
Finally, Roman argues that, without evidence showing that the methamphetamine
he sold was supplied by the NF, no reasonable trier of fact could conclude that he was
part of the alleged conspiracy to sell methamphetamine in association with the NF.
The evidence, discussed in detail above, was more than sufficient to permit the
jury to conclude that Roman was continuing to function within the NF, and that he
purchased methamphetamine from someone he knew was “operating in the reg[iment].”
That evidence was “ ‘ “reasonable, credible, and of solid value.” ’ ” (Jackson, supra, 1
Cal.5th at p. 345.) In any event, it is not for us to decide that because there was some
evidence to support Roman’s position that he was operating entirely on his own and not
selling drugs to benefit the NF, the jury should have acquitted him. We do not reweigh
the evidence or resolve conflicts in the testimony when determining its legal sufficiency.
(Young, supra, 34 Cal.4th at p. 1181.) Based on our review of the evidence, we decide
sufficient evidence was presented to support Roman’s conviction for conspiracy to sell
methamphetamine.
18
For these reasons, we reject Roman’s contentions that insufficient evidence
supports the jury’s convictions and true finding against him.
B. Remand under Senate Bill 1393
Senate Bill 1393, effective January 1, 2019, amended section 1385 to give trial
courts the discretion to dismiss prior serious felony conviction enhancements imposed
under section 667, subdivision (a). (Stats. 2018, ch. 1013, §§ 1, 2.) The California
Supreme Court has held that Senate Bill 1393 applies retroactively to defendants, like
Roman, whose sentences were not yet final when it came into effect. (People v. Stamps
(2020) 9 Cal.5th 685, 699.) We now decide whether a remand to the sentencing court is
necessary or if it would be an “ ‘idle act.’ ” (People v. Gamble (2008) 164 Cal.App.4th
891, 901 (Gamble).)
Generally, “when the record shows that the trial court proceeded with sentencing
on the [] assumption it lacked discretion, remand is necessary so that the trial court may
have the opportunity to exercise its sentencing discretion at a new sentencing hearing.”
(People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) The rationale for this general
rule is that “[d]efendants are entitled to ‘sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court,’ and a court that is unaware of its
discretionary authority cannot exercise its informed discretion.” (Ibid.) There is an
exception to this rule, however, where “ ‘the record shows that the trial court would not
have exercised its discretion even if it believed it could do so,’ ” in which case, “ ‘remand
would be an idle act and is not required.’ ” (Gamble, supra, 164 Cal.App.4th at p. 901.)
A “remand [for resentencing] is required unless the record shows that the trial
court clearly indicated when it originally sentenced the defendant that it would not in any
event have stricken a[n] [] enhancement.” (People v. McDaniels (2018) 22 Cal.App.5th
420, 425.) The salient question is whether the trial court “express[ed] its intent to impose
the maximum sentence permitted.” (Id. at p. 427.) “When such an expression is
reflected in the appellate record, a remand would be an idle act because the record
19
contains a clear indication that the court will not exercise its discretion in the defendant’s
favor.” (Ibid.) Without a clear indication of the trial court’s intent, remand is required.
(People v. Almanza (2018) 24 Cal.App.5th 1104, 1110–1111.)
In this case, we have no clear indication how the trial court might have exercised
its discretion. The trial court sentenced Roman with a mixture of severity and lenity. It
imposed the upper term on count 12 and imposed—but stayed—the upper term on count
1, which would indicate it would not be inclined to strike the sentencing enhancement.
On the other hand, the trial court did strike the criminal street gang enhancements
associated with counts 12 and 26 and, before pronouncing sentence, struck one of
Roman’s two strike priors. On this record, we determine that remand is necessary for the
trial court to consider, in its discretion, whether to dismiss the prior serious felony
enhancements imposed under section 667, subdivision (a).
III. DISPOSITION
The judgment is reversed. The matter is remanded for the limited purpose of
permitting the trial court to determine whether to strike the Penal Code section 667,
subdivision (a) enhancements under Penal Code section 1385 and the prior prison term
enhancements under Penal Code section 667.5, subdivision (b). If the trial court strikes
the enhancements, it shall resentence defendant accordingly and transmit amended
abstracts of judgment to the Department of Corrections and Rehabilitation. If the trial
court declines to strike the enhancements, it shall reinstate the original sentence.
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______________________________________
Danner, J.
WE CONCUR:
____________________________________
Elia, Acting P.J.
____________________________________
Bamattre-Manoukian, J.
H046210
People v. Roman