People v. Cook CA1/5

Filed 1/24/14 P. v. Cook CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A137076 v. TIMONTE EMARI COOK, (Contra Costa County Super. Ct. No. 05-120946-9) Defendant and Appellant.

Defendant and appellant Timonte Emari Cook was convicted by a jury of gang and narcotics offenses, as well as of dissuading a witness. On appeal, he challenges the sufficiency of the evidence to support his conviction on one of two counts of participation in a criminal street gang (Pen. Code, § 186.22, subd. (a))1 and on a gang enhancement (§ 186.22, subd. (b)(l)) attached to two counts of dissuading a witness (§ 136.1, subds. (a) & (b)). We reverse the conviction on the challenged gang participation count and otherwise affirm. PROCEDURAL BACKGROUND In June 2012, appellant was charged by information with two counts of participation in a criminal street gang (§ 186.22, subd. (a); counts one & four); possession of methamphetamine for sale (Health & Saf. Code, § 11378; count two); possession of

1 All undesignated section references are to the Penal Code. 1

methamphetamine while armed with a firearm (id., § 11370.1, subd. (a); count three); and two counts of dissuading a witness from testifying (§ 136.1, subds. (a) & (b); counts five & six). It was alleged that all of the offenses except counts one and four were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(l)). In August 2012, a jury found appellant guilty of all counts with the exception of count two, instead finding appellant guilty of the lesser included offense of simple possession (Health & Saf. Code, § 11377). The jury also found true the gang enhancement allegations, except as to count two. In September 2012, the trial court imposed a five-year prison term based on the three-year midterm for the conviction in count three of possession of methamphetamine while armed, plus two years on the gang enhancement.2 The court also imposed a concurrent term for count five and the attached gang enhancement, and imposed and stayed sentences on the remaining counts and enhancements under section 654. FACTUAL BACKGROUND The prosecution presented evidence appellant is a member of a criminal street gang called the Easter Hill Boys (EHB). His gang moniker is “T-Mac” or “Mac.” In the course of investigating a murder, police arrested appellant on November 15, 2010, at a residence in Pinole, where police found appellant with his girlfriend, Nicole Boyette, in a bedroom. Boyette was taken to the police station and questioned about appellant’s actions around the time of the murder under investigation. Police also searched the bedroom and seized “44 intact methamphetamine tablets” and a loaded pistol. At 10:30 a.m. on November 16, 2010, while appellant was in custody, appellant spoke to an individual identified on the jail call transcript (10:30 a.m. transcript) as “Pierce,” who the prosecution suggested was fellow gang member Deonzelle “Doobie”