People v. Salcido

Opinion

Appellant John Joseph Salcido was convicted by a jury of multiple crimes,- which include two . charges that he actively participated in a criminal street gang in violation of Penal Code section 186.22, subdivision (a). Salcido only challenges these two convictions, alleging the. jury was instructed improperly based on the trial judge’s modifications to Judicial Council of California Criminal Jury Instructions

September 10, 2005, incident

On August 26, 2005, a 2001 Chevrolet pickup truck Steve Tolmachofif owned was left at a body shop in Madera for repairs. By September 6, repairs on the truck had been completed, although the truck had not yet been returned to its owner. When the body shop’s owner opened the business on September 6, he realized his shop had been broken into and the truck taken. The owner was not aware of anyone from the body shop placing a gun inside the truck, and Tolmachofif did not leave a handgun in the truck when he brought it in for repairs.

On September 10, 2005, Madera Police Sergeant Johnny Smith saw a Chevrolet pickup truck breaking traction. The truck pulled into a driveway, which Smith suspected was an attempt to evade him. Smith drove up to the vehicle and noticed the tailgate was lowered, which he said was a common practice with stolen vehicles to conceal the license plate. The driver got out of the vehicle and started to walk away with a female, who had gotten out on the passenger side. When Smith told the driver to come speak to him, the driver complied. The driver, whom Smith identified at trial as Salcido, said his name was John Sauceda. Smith told the female passenger to raise the tailgate. After Smith obtained the license plate number, he learned the truck belonged to Tolmachofif.

Salcido told Sergeant Smith a friend who. lived at a motel in Madera had lent him the truck just 30 minutes before, giving the friend’s name and description. Smith later went to the motel, but no one was there matching the friend’s name or description. Salcido told the officer he was a former Norteño gang member with the Barrio West Side.

Madera Police Officer Daniel Foss responded to Smith’s call for assistance in the detention of the pickup truck. Foss inventoried the truck and found a loaded handgun between the driver’s seat and the center console, readily accessible to the driver. He also located a set of brass knuckles in Salcido’s pants pocket.

Officer Jason Dilbeck, Madera County Police Department’s gang liaison officer, testified as an expert on criminal activity by gangs and about his familiarity with the local Norteño criminal street gang. Dilbeck stated there were approximately 1,500 Norteño gang members in Madera. He indicated that Norteños identify with signs and symbols such as the color red, the number 14, four dots, “Huelga birds” and the north star. Dilbeck explained that to instill respect or fear, gang members commit violent crimes, intimidate witnesses, wear colors, hang out in large groups, and carry weapons. The primary activities of the Norteño gang members include narcotic sales, burglary, possession of stolen property and vehicles, and vehicle burglaries. They also participate in assaults with deadly weapons, shooting at inhabited dwellings, and some homicides. There are different sets of the Norteño street gang, one of which is the Barrio West Side. There are also varying levels of gang participation, ranging from peripheral members, who may wear colors and associate with gang members, to gang members, to “shot callers” who direct the criminal activity.

In Officer Dilbeck’s opinion, Salcido was a member of the Norteño criminal street gang. Dilbeck based this opinion on previous contacts Salcido had with the Madera police and sheriff’s departments and the Department of Corrections. These contacts, which took place from January 18, 2001, to September 10, 2005, showed that Salcido had participated in gang-related crimes and had a gang moniker and gang-related tattoos. Salcido dressed in gang attire, had been identified by reliable sources or rival gang members as a gang member, and was documented as associating with known gang members. In August 2004, March 2005, and September 2005, Salcido admitted to Barrio West Side gang membership.

Dilbeck believed Salcido’s possession of the bat and knife on April 3, 2005, was gang related, as the person he was with was an admitted gang member and Salcido had gang-related tattoos. In addition, Salcido said he had been a West Side gang member since he was 17 years old, and the bat Salcido was carrying was red, the Norteño color. Dilbeck had confiscated bats from gang members in the past and knew gang members used bats to commit assaults.

Officer Dilbeck also believed Salcido exhibited objective signs of gang membership during the September 10 incident. He explained that it is common for gang members to claim, as Salcido did, that they used to be gang members when they are arrested for what may be seen as a gang-related crime. Doing so allows them to state their allegiance to the gang and simultaneously deny active participation so the crime will not be charged as a

Dilbeck also opined that Salcido was an active participant in the gang since he continued to hang out with known gang members, wear gang attire, possess items considered to be gang paraphernalia, and commit crimes with other gang members. Dilbeck went to Salcido’s house in November 2005 and entered Salcido’s room, which he shared with his brother. There, Dilbeck saw Salcido’s moniker and gang-related graffiti on the walls, a red baseball cap with markings on it that signified the Madera Norteños, and another hat with gang-related markings on it.

In Officer Dilbeck’s opinion, Salcido committed the alleged crimes for the benefit of the Norteño gang because each time he was with another Norteño member he was carrying weapons, which engenders fear. Dilbeck testified that one of Salcido’s fellow Norteño gang members, Jesse Candía, Jr., who also claimed to belong to the Barrio West Side, was convicted in 2004 for a 2002 charge of possessing methamphetamine for sale. Another Norteño gang member, who also claimed to belong to the Barrio West Side, Johnny Arrellano, committed a number of offenses in 2002, including transportation of methamphetamine, possession of a loaded firearm, possession of methamphetamine for sale, participation in a criminal street gang, and child endángerment. Given hypothetical facts like those in Salcido’s cases, Dilbeck opined that the resulting crimes were committed for the benefit of a criminal street gang.

Defense

Correctional Corporal Hermenio Sauceda, with the Madera County Department of Corrections, works in the classifications gang investigation unit. According to Corporal Sauceda, when Salcido was placed in the county jail in September 2005, Salcido classified himself as a Norteño dropout gang member. Salcido initially requested that he be housed in the maximum-security administrative segregation unit where he remained for one month. After that, he asked to be placed with the other dropouts. When Salcido was in custody for four days in April 2005, he did not classify himself as a dropout. At that time, he was placed in the general population because the jail had no information that Salcido was a Norteño gang member.

In instructing the jury on participation in a criminal street gang, the court modified the third element in the first part of CALCRIM No. 1400 by adding the italicized language: “To prove that the defendant is guilty of this crime[,] the People must prove that, one, the defendant actively participated in a criminal street gang. Two, when the defendant participated in the gang[,] he

The court’s instruction ended with the definition of felonious criminal conduct: “Felonious criminal conduct, means committing or attempting to commit any of the. following crimes: Illegal possession of a weapon, receiving stolen property, carrying a loaded firearm in a vehicle or carrying a concealed firearm in a vehicle.” As relevant here, the instruction omitted the following portion of CALCRIM No. 1400: “To prove that the defendant willfully assisted, furthered, or promoted a crime, the People must prove that: [ft] 1. A member of the gang committed the crime; [ft] 2. The defendant knew that the gang member intended to commit the crime; [ft] 3. Before or during the commission of the crime, the defendant intended to aid and abet the gang member in committing the crime; [ft] AND [ft] 4. The defendant’s words or conduct did in fact aid and abet the commission of the crime.”

Salcido takes the position that the court erred in two respects when it modified CALCRIM No. 1400. First, Salcido contends that the trial court should have instructed the jury that a person cannot be guilty of street terrorism unless he or she aids and abets “a separate felony offense” in addition to an underlying gang-related felony offense. Salcido argues that the court erred when it omitted from the instruction the language from CALCRIM No. 1400, which states what the prosecutor must show to prove that the defendant willfully assisted, furthered, or promoted a crime. Second, he contends that the separate felony offense must be one of the offenses listed in section 186.22, subdivision (e), which defines a “ ‘pattern of criminal gang activity’ ” and lists the offenses upon which this finding may be based.

We begin with Salcido’s reliance on the CALCRIM User Guide and CALCRIM No. 1400 itself as authority for his claims of error. Published jury instructions, however, are “not themselves the law, and are riot authority to establish legal propositions or precedent. ... At most, when they are accurate, . . . they restate the law.” {People v. Morales (2001) 25 Cal.4th 34 , 48, fn. 7 [ 104 Cal.Rptr.2d 582 , 18 P.3d 11 ].) Consequently, we move on to Salcido’s other rationale in support of his argument.

We wrote that “[u]nder the language of subdivision (a), liability attaches to a gang member who ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’ (§ 186.22, subd. (a).)” (Ngoun, supra, 88 Cal.App.4th at p. 436.) After reviewing dictionary definitions of “promote,” “further,” and “assist,” we concluded: “The literal meanings of these critical words squares with the expressed purposes of the lawmakers. An active gang member who directly perpetrates a gang-related offense ‘contributes’ to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct. Faced with the words the legislators chose, we cannot rationally ascribe to them the intention to deter criminal gang activity by the palpably

Salcido attempts to distinguish Ngoun on the ground that there, other gang members actually were present when the appellant committed the murder and assaults underlying his section 186.22, subdivision (a), conviction. He contends Ngoun stands for the proposition that a “[principal] who commits a crime jointly with other gang members is equally liable under section 186.22, subdivision (a).” Salcido asserts that subdivision (a) imposes liability on perpetrators only if they commit the crime in concert with other gang members. In Ngoun, however, we placed no limitation on our holding. To the contrary, we concluded that the subdivision “applies to the perpetrator of felonious gang-related criminal conduct as well as to the aider and abettor.” (Ngoun, supra, 88 Cal.App.4th at p. 436.) Even though in Ngoun other gang members were present when the crimes were committed, it is uncertain whether they participated in the crimes. (Id. at p. 437.) Here, Salcido was accompanied by known gang members on both occasions, although there was no evidence they participated in Salcido’s crimes. In each case, however, “[t]he evidence supports a reasonable inference that the [crimes] were intended by appellant to promote, further and assist the gang in its primary activities—the commission of criminal acts and the maintenance of gang respect.” (Ibid.)

Salcido also attempts to distinguish Ngoun, arguing that the offenses the defendant in Ngoun committed were predicate offenses listed in section 186.22, subdivision (e), while the offenses he committed were not predicate offenses at that time. We observe that, in 2006, the list of predicate offenses was expanded to include two of the offenses Salcido was convicted of in this case, including carrying a concealed firearm in violation of section 12025 (§ 186.22, subd. (e)(32)) and carrying a loaded firearm in violation of section 12031 (§ 186.22, subd. (e)(33)). (Stats. 2006, ch. 596, § 1.)

Subdivision (e) provides that a gang engages in a “ ‘pattern of criminal gang activity’ ” when its members participate in “two or more” specified criminal offenses (predicate offenses) that are committed within a certain timeframe and “on separate occasions, or by two or more persons.”

Section 186.22, subdivision (a), however, does not contain any requirement that the “felonious criminal conduct” the defendant “willfully promotes, furthers, or assists” consist of the predicate offenses listed in section 186.22, subdivision (e), which, pursuant to that subdivision, apply only to determine whether there was a “ ‘pattern of criminal gang activity ....’” While the crimes the defendants in Castenada and Ngoun committed also may have qualified as predicate offenses, neither case held that this was a requirement of the statute. Obviously, cases do not stand for propositions not considered. (People v. Alvarez (2002) 27 Cal.4th 1161 , 1176 [ 119 Cal.Rptr.2d 903 , 46 P.3d 372 ].)

Here, if the evidence proved any criminal conduct by Salcido, it was only as the perpetrator of the crimes establishing the felonious criminal conduct with which he was charged. This conduct included illegal possession of a weapon, receiving stolen property, carrying a loaded firearm in a vehicle, or carrying a concealed firearm in a vehicle. Faced with CALCRIM No. 1400 which defines when a defendant willfully assists, furthers, or promotes a crime only in terms of whether the defendant aided and abetted another gang member in the commission of a crime, the trial court appropriately omitted that portion of the instruction. Instead, it told the jury it must find that Salcido “willfully promoted, furthered or assisted by either directly and actively committing a felony offense or aiding and abetting felonious criminal conduct by members of that gang.” (Italics added.) As a result, the court correctly instructed the jury that Salcido could be convicted of the crime if he was a direct perpetrator of the felonious criminal conduct. Although the court never defined the terms “aiding and abetting,” this did not impact Salcido since the jury could not have found Salcido guilty based on aider-and-abettor status.

Recognizing this issue, in Ngoun, we commented that the “real difficulty” was in CALJIC No. 6.50, which at the time stated that one of the elements of the crime was “ ‘[t]hat person aided and abetted [a] member[s] of that gang in committing the crime[s] of _.’ (Italics added.)” (Ngoun, supra, 88 Cal.App.4th at p. 435, fn. 20.) We surmised that the instruction was founded on the statement in Castenada that “a person liable under section 186.22(a) must aid and abet a separate felony offense committed by gang members” (Castenada, supra, 23 Cal.4th at p. 750), but concluded that Castenada did

The judgment is affirmed.

Levy, J., and Hill, J., concurred.

Appellant’s petition for review by the Supreme Court was denied July 11, 2007, S152686.