PEOPLE OF MI V DAVID ANTHONY GUERRAAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
April 8, 2003
Genesee Circuit Court
LC No. 99-004399-FH
ISRAEL J. GONZALEZ,
PEOPLE OF THE STATE OF MICHIGAN,
Genesee Circuit Court
LC No. 99-004416-FH
DAVID ANTHONY GUERRA,
May 23, 2003
Before: White, P.J. and Kelly and R.S. Gribbs,* JJ.
In these consolidated appeals from a joint jury trial, defendants Israel J. Gonzalez
(Docket No. 223401) and David A. Guerra (Docket No. 223402) appeal as of right.
Defendant Gonzalez appeals his convictions of operating a criminal enterprise
(racketeering),1 MCL 750.159i(l); and soliciting a person to possess with intent to deliver less
than fifty grams of cocaine, MCL 333.7407a(2). The trial court sentenced defendant Gonzalez
as a second-offense habitual offender, MCL 769.10, to consecutive prison terms of thirteen years
Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
The jury found defendant Gonzalez guilty of eleven of the fourteen crimes listed under the
racketeering charge on the felony information.
and four months to thirty years in prison for the racketeering conviction, and five to forty years
in prison for the soliciting conviction.
Defendant Guerra appeals his convictions of racketeering,2 MCL 750.159i(l); possession
with intent to deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); maintaining a
drug house, MCL 333.7405(1)(d); and possession of a firearm during the commission of a
felony, MCL 750.227b. The trial court sentenced defendant Guerra to thirteen years and four
months to twenty years in prison for the racketeering conviction, eight to twenty years in prison
for the conviction of possession with intent to deliver cocaine, one year and four months to two
years in prison for the conviction of maintaining a drug house, and two years for the felonyfirearm conviction. The sentences for racketeering and maintaining a drug house run
concurrently; the other sentences run consecutively.
I. Basic Facts and Procedural History
A Crime Area Target Team of the Flint Police Department, which had been investigating
gang activity for several years, discovered that the Spanish Cobras, a gang originating in
Chicago, had been active in Flint since the early 1990s. The Spanish Cobras were primarily drug
traffickers, but also committed larcenies, burglaries, thefts, extortion, fencing of stolen property,
As part of an investigation of the Spanish Cobras, Michigan State Trooper Dale Girke
made several undercover drug transactions to discover the drug source. Some of these
transactions were surveilled by Flint police officers, who ultimately searched Jose Diaz's home
finding a safe containing $3,600. Marked bills from the drug transactions with Trooper Girke
were also traced to Diaz. In March 1998, Flint police executed a search warrant at Diaz's home
where they found firearms and various items exhibiting gang colors and symbols, as well as
photographs of gang members, including defendants, wearing gang paraphernalia and making
In June 1998, Flint police officers executed felony arrest warrants regarding eleven
individuals, including defendant Guerra. During the execution of defendant Guerra's arrest
warrant, Lieutenant Gary Hagler approached defendant Guerra's house and saw him run from the
front door. Defendant Guerra did not run straight for the back door, but ran through other rooms
of the house. He was arrested on the back patio. During what the prosecutor argues was a
protective sweep of the house, officers observed marijuana. On the basis of this observation and
other information, the police obtained a search warrant. Pursuant to the search warrant, police
seized two bags containing over ten grams of cocaine, a nine-millimeter, semiautomatic pistol, a
quilt with gang symbols and colors, other gang-related material and photographs, and drug
The jury found defendant Guerra guilty of three of the seven crimes listed under the
racketeering charge on the felony information.
Defendants, as well as three other individuals,3 were charged with racketeering, MCL
750.159i(l), in connection with their alleged membership and participation in the illegal activities
of the Spanish Cobras.
II. Evidentiary Issues
A. Standard of Review and Generally Applicable Law
The decision whether to admit evidence is within the discretion of the trial court and will
not be disturbed on appeal absent a clear abuse of discretion. People v Snider, 239 Mich App
393, 419; 608 NW2d 502 (2000). An abuse of discretion is found only if an unprejudiced
person, considering the facts on which the trial court acted, would say that there was no
justification or excuse for the ruling made. Id. A decision on a close evidentiary question
ordinarily cannot be an abuse of discretion. People v Sabin (After Remand), 463 Mich 43, 67;
614 NW2d 888 (2000). Decisions regarding the admission of evidence that involve a
preliminary question of law, such as the interpretation of a rule of evidence, are reviewed de
novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
Generally, all relevant evidence is admissible. MRE 402. Relevant evidence is
"evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence." MRE 401. Relevant evidence "may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence." MRE 403. A determination of the prejudicial effect of evidence is "'best left to a
contemporaneous assessment of the presentation, credibility, and effect of testimony' by the trial
judge." People v Bahoda, 448 Mich 261, 291; 531 NW2d 659 (1995), quoting People v
VanderVliet, 444 Mich 52, 81; 508 NW2d 114 (1993).
B. Criminal Activities of Others
Defendants first argue that the trial court abused its discretion in admitting evidence
concerning the criminal activities of others. We disagree.
Defendants were convicted pursuant to MCL 750.159i(1): "A person employed by, or
associated with, an enterprise shall not knowingly conduct or participate in the affairs of the
enterprise directly or indirectly through a pattern of racketeering activity." MCL 750.159f(a)
defines "enterprise" as "an individual, sole proprietorship, partnership, corporation, limited
liability company, trust, union, association, governmental unit, or other legal entity or a group or
persons associated in fact although not a legal entity. Enterprise includes illicit as well as licit
enterprises." MCL 750.159g defines "racketeering," in relevant part, as follows:
As used in this chapter, "racketeering" means committing, attempting to
commit, conspiring to commit, or aiding or abetting, soliciting, coercing, or
Before trial, the three individuals entered guilty pleas and testified at trial.
intimidating a person to commit an offense for financial gain, involving any of the
* * *
(c) A felony violation of part 74 or section 17766a of the public health
code, 1978 PA 368, MCL 333.7401 to 333.7461 and 333.7766a, concerning
controlled substances or androgenic anabolic steroids.
* * *
(r) A violation of section 213, concerning extortion.
* * *
(ff) A violation of section 529, 529a, 530, 531, concerning robbery.
(gg) A felony violation of section 535, 535a, 536a, concerning stolen,
embezzled, or converted property.
MCL 750.159f(c) defines a "pattern of racketeering activity" as follows:
"Pattern of racketeering activity" means not less than 2 incidents of
racketeering to which all of the following characteristics apply:
(i) The incidents have the same or a substantially similar purpose, result,
participant, victim, or method of commission, or are otherwise interrelated by
distinguishing characteristics and are not isolated acts.
(ii) The incidents amount to or pose a threat of continued criminal activity.
(iii) At least 1 of the incidents occurred within this state on or after the
effective date of the amendatory act that added this section, and the last of the
incidents occurred within 10 years after the commission of any prior incident,
excluding any period of imprisonment served by a person engaging in the
The statute was intended to create state racketeering law analogous to the Racketeering Influence
and Corrupt Organizations Act (RICO), 18 USC 1961 et seq. House Legislative Analysis, HB
4367, January 12, 1996. RICO recognizes two types of enterprises. 18 USC 1962(a)-(c). The
type that applies to this case is set forth in subsection 1962(c), conducting the affairs of an
enterprise through a pattern of racketeering activity. Under this subsection, the enterprise is "the
instrument through which illegal activity is conducted." United States v Chance, 306 F3d 356,
372-373 (CA 6, 2002). To prove this type of enterprise under RICO, the government must show
1) an ongoing organization with some sort of framework or superstructure for
making and carrying out decisions; 2) that the members of the enterprise
functioned as a continuing unit with established duties; and 3) that the enterprise
was separate and distinct from the pattern of racketeering activity in which it
engaged. [Id., citing Frank v D'Ambrosi, 4 F3d 1378, 1386 (CA 6, 1993).]
Here, the challenged evidence was relevant to establish the existence of the enterprise and
the participation of its members in a pattern of criminal activity. During the execution of the
search warrant at Diaz's home on March 17, 1998, police officers discovered a photo album
covered in green and black, the Spanish Cobras' colors. On the front of the album was Diaz's
photograph cut in a diamond shape, a Spanish Cobras symbol. The album contained
photographs of Diaz, defendants, and others making gang signs. This evidence tended to show
that defendants were part of the enterprise known as the Spanish Cobras. The photo album was,
therefore, relevant to show the existence of the Spanish Cobras and defendants' membership
therein. Regarding the evidence of weapons found in the home, both defendants were seen
possessing firearms and defendant Guerra was charged with felony-firearm. Therefore, this
evidence was also relevant.
The testimony of Trooper Girke regarding drug transactions was relevant to show a
pattern of the Spanish Cobras' criminal activity. Working undercover, Trooper Girke acted as a
buyer in three drug transactions with Mary Parrish. In two of the transactions, the vehicle
involved belonged to Diaz and was followed back to Diaz's home after the sale. In addition,
some of the money used by Trooper Girke was traced to Diaz. Because other evidence had
already been admitted that tended to establish that Diaz was a member and leader of the Spanish
Cobras, this additional evidence tended to show that the Spanish Cobras was an organization
involved in the street sale of cocaine. Thus, it was admissible to establish an element of
Defendant Gonzalez did not object to the testimony of Officer David Forysteck, Bethany
Carter, and Ryan Pinkston. Nonetheless, this testimony also tended to show that the Spanish
Cobras were an enterprise involved in drug trafficking and violence. Given the other evidence
that established the existence of the Spanish Cobras and their activities, no plain error affecting
defendants' substantial rights occurred when the jury heard this testimony. People v Pesquera,
244 Mich App 305, 316; 625 NW2d 407 (2001), citing People v Carines, 460 Mich 750, 763;
597 NW2d 130 (1999).
Defendant Guerra next argues that the trial court abused its discretion in admitting
evidence of an assault that was allegedly ordered by him. We disagree.
The trial court did not err in admitting the evidence that defendant Guerra ordered
another Spanish Cobra member to assault Ryan Pinkston. This evidence tended to demonstrate
defendant's leadership role in the Spanish Cobras. The evidence was material in that defendant's
participation in the affairs of the Spanish Cobras was at issue during his trial. It was also
probative, making his leadership in the Spanish Cobras more probable.
D. Gang Affiliation
Defendant Guerra next argues that the prosecutor improperly introduced evidence of
gang affiliation without an adequate foundation. We disagree.
To avoid forfeiture of an unpreserved claim of prosecutorial misconduct, defendant must
show a plain error affecting his substantial rights. People v Rodriguez, 251 Mich App 10, 32;
650 NW2d 96 (2002). "Issues of prosecutorial misconduct are decided case by case, with the
reviewing court examining the pertinent portion of the record and evaluating the prosecutor's
remarks in context." People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999).
Specifically, defendant Guerra argues that the prosecutor improperly elicited the
testimony of Lieutenant Hagler regarding names of other gang members whose identities were
derived from hearsay and gang profiles. Defendant Guerra argues that the purpose of admitting
this evidence was to establish that Lieutenant Hagler was a gang expert. We find that the
challenged conduct did not constitute plain error because the prosecutor introduced the evidence
on the basis of Lieutenant Hagler's declared status as an expert witness in the area of street-gang
investigation and practices. Even if it was plain error, it could not have affected defendant
Guerra's substantial rights because the complained of conduct occurred during a small portion of
the direct examination of one witness and did not infect the entire trial.
E. Plea Agreement
Defendant Guerra next argues that the trial court abused its discretion in not allowing him
to impeach witness Mary Parrish with evidence of her plea agreement. We disagree.
Defendant Guerra called Parrish in his case-in-chief, apparently to mitigate the testimony
of a prosecution witness. Defendant now argues that Parrish's agreement with the prosecutor to
give truthful testimony in exchange for a more lenient sentence was admissible to show her bias
toward the prosecution. However, we note that defense counsel first elicited Parrish's testimony
that defendant had threatened her. The prosecution elicited further testimony about this matter
While a witness's credibility may be attacked by the party calling the witness, MRE 607,
defendant was attempting to impeach testimony that he initially elicited from Parrish. "Because
error requiring reversal cannot be error to which the aggrieved party contributed by plan or
negligence, defendant has waived appellate review of this issue." People v Griffin, 235 Mich
App 27, 46; 597 NW2d 176 (1999). Regardless of this waiver, though it may be error requiring
reversal to exclude evidence of a prosecution witness's plea agreement on the basis of the right of
confrontation, People v Mumford, 183 Mich App 149, 154; 455 NW2d 41 (1990), there is no
such error here because defense counsel called Parrish to testify and elicited her testimony about
defendant Guerra's threat. Therefore, the trial court did not abuse its discretion in denying
defendant Guerra's request to present the fact that Parrish was offered a plea agreement by the
F. Similar Acts
Defendant Guerra next argues that the trial court abused its discretion in "allowing the
jury to consider similar acts evidence for an improper purpose without sufficient notice to the
defendant." We disagree.
To begin with, we note that defendant Guerra did not object to the admission of similaracts evidence, nor does he argue on appeal that the evidence was improperly admitted. Rather,
he argues that the trial court, in response to the jury's inquiry, improperly instructed the jury that
it could "consider all the relevant evidence introduced during the course of this trial on the
element of intent in order to determine whether the possession of cocaine . . . was possession
with intent to deliver cocaine."4 Defendant Guerra does not contest that the evidence was
properly considered in relation to his racketeering charge. Rather, he argues that the evidence
should not have been considered in regard to the charge of possession with intent to deliver less
than fifty grams of cocaine. Thus, the scope of our review does not include whether the evidence
was properly admitted under MRE 404(b). Our inquiry is instead limited to whether the trial
court properly instructed the jury.
To preserve an instructional error for review, a defendant must object to the instruction
before the jury deliberates. MCR 2.515(C). Because the alleged error was not properly
preserved,5 we review this issue for plain error affecting the defendant's substantial rights.
People v Knapp, 244 Mich App 361, 375; 624 NW2d 227 (2001), citing Carines, supra at 766767. This Court reviews jury instructions in their entirety to determine whether there is error
requiring reversal. People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001). We will
not reverse a conviction if the instructions fairly presented the issues to be tried and sufficiently
protected the defendant's rights. Id.
The elements of possession of less than fifty grams of cocaine with intent to deliver are:
"(1) that the recovered substance is cocaine, (2) that the cocaine is in a mixture weighing less
than fifty grams, (3) that defendant was not authorized to possess the substance, and (4) that
defendant knowingly possessed the cocaine with intent to deliver." People v Wolfe, 440 Mich
508, 516-517; 489 NW2d 748 (1992), mod 441 Mich 1201 (1992). "Actual delivery is not
required to prove intent to deliver." People v Fetterley, 229 Mich App 511, 517; 583 NW2d 199
(1998). "An actor's intent may be inferred from all of the facts and circumstances, and because
of the difficulty of proving an actor's state of mind, minimal circumstantial evidence is
sufficient." Id. at 517-518 (citations omitted). "Possession with intent to deliver can be
established by circumstantial evidence and reasonable inferences arising from that evidence, just
as it can be established by direct evidence." Wolfe, supra at 526.
In this case, Sergeant Harold Payer testified that the amount of cocaine found in
defendant Guerra's home, when considered with other confiscated items such as the sifter
containing cocaine residue, a baggie containing cocaine, and weapons, led him to believe that
defendant Guerra intended to deliver the cocaine, not merely possess it. This evidence alone was
sufficient to support defendant Guerra's conviction. Therefore, the alleged instructional error did
not affect defendant Guerra's substantial rights.
III. Sentencing Issues
A. Sentencing Guidelines
This instruction was merely a reiteration of the instruction provided before jury deliberation
Defense counsel objected after the jury was excused and deliberations commenced.
Defendants next argue that the trial court abused its discretion in using the judicial rather
than the legislative sentencing guidelines in formulating their sentences. We disagree.
Generally, appellate review of sentencing under the judicial sentencing guidelines is
limited to whether the sentencing court abused it discretion. Fetterley, supra at 525. A
sentencing court abuses its discretion when it violates the principle of proportionality, which
requires that a sentence be proportionate to the seriousness of the crime and the defendant's
record. People v Milbourn, 435 Mich 630, 635-636, 654; 461 NW2d 1 (1990); People v Bennett,
241 Mich App 511, 515; 616 NW2d 703 (2000).
MCL 769.34(1) provides that the judicial sentencing guidelines "shall not apply to
felonies . . . committed on or after January 1, 1999." MCL 769.34(2) provides that the
sentencing guidelines promulgated by the Legislature apply to felonies "committed on or after
January 1, 1999." People v Reynolds, 240 Mich App 250, 254; 611 NW2d 316 (2000).
The trial court did not err in applying the judicial guidelines because the offenses of
which defendants were convicted occurred before January 1, 1999. Defendant Guerra was not
charged with any conduct that occurred after 1998. Of the alleged predicate offenses underlying
the racketeering charge against defendant Gonzalez, only one occurred after January 1, 1999,
intimidating a witness in March 1999. The jury did not find defendant Gonzalez guilty of this
However, defendant Gonzalez also argues that the evidence supporting his solicitation
conviction is ambiguous with regard to the date the offense occurred. The subject of defendant
Gonzalez's solicitation first testified about a sale of marijuana that occurred in the summer of
1997. This witness was then questioned about cocaine solicitation, to which the witness
responded that there was "just one incident." The exchange continued:
Q. When was that?
A. Not too long after that, probably in the wintertime after that.
Q. And would that put it one side or the other of New Year's, if you
A. Not exactly sure.
Q. So that would have been either just—would—would it be fair to say
winter can be either side of New Year's.
Q. It would be either the late end of '97 or the beginning of '98.
A. Well, that—that it was—it had—I think it was in the winter of '98—
A. —it was probably a year after that.
A. It was awhile after that.
We agree that this testimony is ambiguous and could be read to place the incident in the
early months of 1999. However, even if the offense occurred after January 1, 1999, any error in
applying the judicial guidelines was harmless. The trial court stated that it would have found
substantial and compelling reasons to depart from the legislative guidelines if they had been
applied. The court noted that justification for this departure was found in defendant Gonzalez's
criminal history. Furthermore, the jury found him guilty of eleven of fourteen predicate
offenses. Had the trial court used the legislative guidelines, it would not have abused its
discretion in determining that these objective and verifiable factors presented substantial and
compelling reasons to depart from the legislative sentencing guidelines. People v Babcock, 250
Mich App 463, 465-468; 648 NW2d 221 (2002).
B. Defendant Gonzalez's Consecutive Sentences
Defendant Gonzalez next argues that the trial court erred in ordering consecutive
sentences for his solicitation and racketeering convictions. We disagree.
Whether the trial court properly sentenced a defendant to consecutive sentences is a
question of statutory interpretation that is reviewed de novo. People v Denio, 454 Mich 691,
698-699; 564 NW2d 13 (1997). A consecutive sentence may be imposed only if specifically
authorized by law. People v Lee, 233 Mich App 403, 405; 592 NW2d 779 (1999).
In this case, defendant Gonzalez was convicted of soliciting Ryan Pinkston to possess
less than fifty grams of cocaine with intent to deliver. MCL 333.7407a(2). "Except as otherwise
provided6 . . . a person who violates this section is guilty of a crime punishable by . . . the penalty
for the crime he or she solicited, induced, or intimidated another person to commit." MCL
333.7407a(3). Possession with intent to deliver less than fifty grams of cocaine is prohibited by
MCL 333.7401(2)(a)(iv). MCL 333.7401(3) prescribes consecutive sentencing for offenses
involving controlled substances that are enumerated in MCL 333.7401(2)(a). People v Spann,
250 Mich App 527; 655 NW2d 251 (2002). Our Supreme Court has interpreted MCL
333.7401(3) to require consecutive sentencing for a defendant convicted of conspiracy to commit
one of the enumerated offenses. Denio, supra at 691. Therefore, we find the trial court did not
err in imposing consecutive sentences for these offenses.
C. Proportionality of Defendant Gonzalez's Sentences
Defendant Gonzalez also argues that the trial court erred in imposing a disproportionate
sentence. We disagree.
The parties do not argue that these exceptions are applicable to this case.
As discussed above, the legislative sentencing guidelines do not apply to defendant
Gonzalez's convictions. Additionally, the judicial sentencing guidelines do not apply because he
was sentenced as an habitual offender. People v Colon, 250 Mich App 59, 65; 644 NW2d 790
(2002). This Court reviews the sentence of an habitual offender for an abuse of discretion. Id. at
64. "Nonetheless, '[a] sentence must be proportionate to the seriousness of the crime and the
defendant's prior record. If an habitual offender's underlying felony and criminal history
demonstrate that he is unable to conform his conduct to the law, a sentence within the statutory
limit is proportionate.'" Id. at 65, quoting People v Compeau, 244 Mich App 595, 598-599; 625
NW2d 120 (2001) (citation omitted).
In this case, the jury found defendant Gonzalez guilty of eleven offenses predicate to
racketeering, most of which involved the possession or sale of cocaine and marijuana. The
evidence demonstrated that defendant Gonzalez was a leader of the Spanish Cobras and induced
others to commit crimes. Moreover, defendant Gonzalez was a second-offense habitual
offender, having previously been convicted of cocaine possession. Therefore, the evidence
demonstrated that he is unable to conform his conduct to the law, and sentencing him within the
statutory limits was proper.
Pursuant to MCL 750.159j, defendant Gonzalez could be imprisoned for the racketeering
conviction for not more than twenty years. However, as a second-offense habitual offender,
MCL 769.10, he could be sentenced to a maximum term that was not more than 1-1/2 times the
longest term prescribed for the offense. Therefore, defendant Gonzalez's maximum sentence for
racketeering, thirty years, is within the statutory limit. Pursuant to MCL 333.7407a(3),
defendant Gonzalez could be sentenced for his solicitation conviction to the "penalty for the
crime he or she solicited, induced, or intimidated another person to commit." The sentence that
can be imposed for possession of less than fifty grams of cocaine with intent to deliver is not less
than one year nor more than twenty years. MCL 333.7401(2)(a)(iv). Because defendant
Gonzalez had previously been convicted of possession of less than twenty-five grams of cocaine,
he was subject to having this sentence enhanced to "not more than twice the term authorized."
MCL 333.7413(2). Therefore, the sentence the trial court imposed for this offense, five to forty
years in prison, is within the statutory limit. Accordingly, we find no abuse of discretion.
IV. Motion to Suppress
Defendant Guerra next argues that the trial court erred in denying his motion to suppress
evidence found in his home. We disagree.
This Court reviews for clear error a trial court's ruling on a motion to suppress evidence.
People v Stevens (After Remand), 460 Mich 626, 631; 597 NW2d 53 (1999). To the extent that
the trial court's decision is based on an interpretation of the law, our review is de novo. People v
Kaslowski, 239 Mich App 320, 323; 608 NW2d 539 (2000).
The right of individuals to be secure against unreasonable searches and seizures is
guaranteed by both the federal and state constitutions. US Const, Am IV; Const 1963, art 1,
§ 11. The lawfulness of a search and seizure depends on its reasonableness. People v
Beuschlein, 245 Mich App 744, 749; 630 NW2d 921 (2001). Searches conducted without a
warrant are unreasonable per se, unless the police conduct falls under one of several specifically
established and well-delineated exceptions. People v Kazmierczak, 461 Mich 411, 418; 605
NW2d 667 (2000); Beuschlein, supra at 749. Generally, items that are seized during an unlawful
search or that are the indirect results of an unlawful search may not be admitted as evidence
against a defendant under the exclusionary rule. Stevens, supra at 634. Two exceptions to the
exclusion of evidence seized during a search without a warrant are applicable here: a search
incident to a lawful arrest, People v Toohey, 438 Mich 265, 271 n 4; 475 NW2d 16 (1991);
People v Eaton, 241 Mich App 459, 461-462; 617 NW2d 363 (2000), and seizures of items in
plain view if the officers are lawfully in the position from which they view the item, and if the
item's incriminating character is immediately apparent, People v Champion, 452 Mich 92, 101;
549 NW2d 849 (1996).
We find that the trial court did not err in denying defendant Guerra's motion to suppress.
When the officers executed the arrest warrant against defendant Guerra, Lieutenant Hagler knew
that Guerra was a member of the Spanish Cobras, and that Guerra sold narcotics and used guns.
Lieutenant Hagler was also aware of threats made to the police by Spanish Cobra members,
including defendant Guerra's cousin. Additionally, some of the arrest warrants against defendant
Guerra were for violent offenses.
When Hagler approached defendant Guerra's house, he noticed defendant Guerra behind
an Armorguard door. After Hagler announced his purpose and ordered defendant Guerra to
comply, defendant Guerra ran in the opposite direction through the house, zigzagging through
other rooms. Lieutenant Hagler entered the house and chased defendant Guerra past other
people in the home, to the back door where defendant Guerra stepped outside and was
Given these circumstances, the trial court did not err in determining that the police
conduct was reasonable. Lieutenant Hagler articulated facts that would form "a reasonable
belief" that there may have been individuals in defendant Guerra's home who posed a danger to
the arresting officers. The officers knew that other individuals affiliated with the Spanish
Cobras, including some wanted for assaultive crimes and murder, were still at large and could be
hiding in defendant Guerra's home. It was reasonable to perform a protective sweep of the
house, including the basement, to ensure that no individuals were hiding in the house. The
officers also noted defendant Guerra's girlfriend Sandra Fierros' presence and checked her person
and the area immediately around her for firearms. While performing this protective sweep, the
officers observed an ashtray containing marijuana seeds and stems on the dining-room table. In
addition, the officers found a marijuana cigarette on the floor in front of a couch in the basement.
Both of these items were immediately recognizable as contraband and were located in plain
view. Because the officers' conduct was reasonable, it was not improper to list these items of
contraband on the request for a search warrant. Accordingly, the evidence found pursuant to the
warrant was admissible against defendant Guerra at trial. The trial court did not err in denying
defendant Guerra's motion to suppress.
V. Jurisdiction Over Predicate Juvenile Offense
Defendant Guerra also argues that the trial court erred in refusing to instruct the jury that
the trial court did not have jurisdiction over a predicate offense that occurred when defendant
Guerra was a juvenile. We disagree.7 Issues of subject-matter jurisdiction are reviewed de novo.
People v Harris, 224 Mich App 597, 599; 569 NW2d 525 (1997). A lack of subject-matter
jurisdiction cannot be waived by a party. People v Eaton, 184 Mich App 649, 652; 459 NW2d
86 (1990). This Court also reviews de novo claims of instructional error. People v Hall, 249
Mich App 262, 269; 643 NW2d 253 (2002).
Defendant Guerra argues that pursuant to MCL 712A.4, the circuit court did not have
jurisdiction to consider the charge of delivery of cocaine or possession with intent to deliver
cocaine that occurred when he was a juvenile, absent a waiver hearing. However, this issue is
moot8 because the jury did not find defendant Guerra guilty of that offense. All the other
predicate offenses, of which defendant Guerra was convicted, occurred when he was at least
eighteen years old.
Defendant Guerra argues that even if the jurisdictional issue is moot, we should still
address the instructional issue because "the trial court also instructed the jury that this alleged
conduct may be considered when determining guilt on Count II [possession with intent to deliver
less than fifty grams of cocaine]." Although the jury was permitted to consider evidence of the
alleged juvenile conduct, it found that there was insufficient evidence to establish that this
conduct occurred. Having found that this act was not proven beyond a reasonable doubt, it is
improbable that the jury considered it in relation to Count II. Moreover, even without the
evidence of defendant Guerra's juvenile act, there was ample evidence to support his conviction
as discussed above. Therefore, even if the trial court erred in denying defendant Guerra's request
for the jury instruction, defendant Guerra cannot show a miscarriage of justice under the "more
probable than not" standard, Carines, supra at 774; Lukity, supra at 495-496.
R.S. Gribbs, J., concurred.
/s/ Kirsten Frank Kelly
/s/ Roman S. Gribbs
We note that this issue is somewhat oddly articulated. Although this issue is framed as whether
the trial court lacked jurisdiction, defendant Guerra's argument is that the trial court improperly
denied his request for a jury instruction that the trial court lacked jurisdiction over the juvenile
offense. We also note that defendant Guerra did not object to the evidence of the offense when it
was admitted at trial.
An issue is moot where a subsequent event renders it impossible for this Court to fashion a
remedy. People v Briseno, 211 Mich App 11, 17; 535 NW2d 559 (1995).