People v. Espinoza CA3

Filed 9/29/15 P. v. Espinoza CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C076516

Plaintiff and Respondent, (Super. Ct. No. SF117804A)

v.

MATTHEW ARMANDO ESPINOZA,

Defendant and Appellant.

A jury found defendant Matthew Armando Espinoza guilty of transportation of methamphetamine (Health & Saf. Code, § 11379; counts twenty-three & twenty-six), conspiracy to sell or transport methamphetamine (Pen. Code, § 182; Health & Saf. Code § 11379; count twenty-eight)1 and active participation in a criminal street gang (§ 186.22, subd. (a); count thirty). The jury also found true allegations that defendant committed the

1 Undesignated statutory references are to the Penal Code.

1

crimes to benefit a criminal street gang (§ 186.22, subd. (b)) and had two prior drug convictions. (Health & Saf. Code, § 11370.2.) The trial court sentenced defendant to an aggregate term of 17 years, including a consecutive term of eight months for active participation in a criminal street gang. On appeal, defendant argues the trial court should have stayed the sentence for active participation in a criminal street gang pursuant to section 654. The People concede the issue, and we accept the People’s concession. Accordingly, we will stay the sentence for active participation in a criminal street gang and affirm the judgment as modified. BACKGROUND In 2010, the California Department of Justice (DOJ) launched an investigation known as “Operation Crimson Tide,” focusing on the activities of Norteño gang members in Sutter and Yuba Counties. During the course of their investigation, DOJ agents identified John Pantoja as the leader of the Southside Tracy Norteños. Operation Crimson Tide was followed by an investigation focusing on gang activity in Tracy known as “Operation Gateway.” During the course of Operation Gateway, DOJ agents wiretapped Pantoja’s phone and intercepted a number of calls between Pantoja and defendant. Based on the content of these communications, DOJ agents identified defendant as a person of interest and obtained authorization to place a wiretap on his phone as well. DOJ agents monitored defendant’s cell phone communications for several months. During this time, DOJ agents intercepted telephone calls and text messages in which defendant discussed drug sales with Pantoja and others. DOJ agents also intercepted telephone calls and text messages in which defendant discussed other gang business with Pantoja, including personnel problems and problems with law enforcement. Defendant was placed under surveillance. He was observed making frequent trips between San Leandro and Tracy, with multiple stops at different locations in Tracy.