Opinion
G040622.
7-14-2009
In re J.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.M., Defendant and Appellant.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
The juvenile court sustained the district attorneys petition against 16-year-old J.M. (see Welf. & Inst. Code, § 602), finding to be true allegations he committed aggravated assault on two victims (Pen. Code, § 245, subd. (a)(1)) and actively participated in a criminal street gang (§ 186.22, subd. (a)), and further that he committed the assaults for the benefit of a criminal street gang (§ 186.22, subd. (b)). Defendant challenges the sufficiency of the evidence to support the gang enhancement, arguing the prosecution failed to show his gangs "primary activities" qualified it as a criminal street gang. (§ 186.22, subd. (f).) Defendant also disputes the sufficiency of a victims eyewitness testimony to establish he committed the substantive offenses. As we explain below, defendants arguments are without merit, and we therefore affirm the juvenile courts order sustaining the petition against defendant.
I
FACTUAL AND PROCEDURAL BACKGROUND
One of the victims, A.M., encountered defendant, defendants companion, J.R., and three other males on a bridge over a Fullerton roadway on a January afternoon. A.M. knew J.R., who introduced him to defendant. In the course of a conversation lasting around 10 minutes, A.M. learned defendants street name was "`Nightmare." Later that night, police questioned A.M. about a party where alcohol was served, and A.M. admitted J.R. was there.
The next day, around 10:00 p.m., A.M. and his friend, Jose R., encountered defendant, J.R., at least two other males, and a female on the same bridge. Someone in the group queried, "`Are these the guys, are these the guys, are these the guys?" J.R. accused A.M. of "ratting" him out to police about the party. Jose testified people started yelling out, "`FTT, FTT," which Jose and A.M. knew was an acronym for the Fullerton Tokers Town gang. Defendant silently removed his glasses, put them down, and then attacked Jose, punching him in the face. The group then rushed at Jose, surrounding him and pummeling him with beer bottles and sticks. A.M. ran to a friends nearby home to summon help, telling the friends parents that "gangsters" were attacking Jose. As his friends father called the police, A.M. returned to aid Jose.
A.M. punched a bald male who threw a bottle at Jose. The group then rushed at and attacked A.M., striking him with repeated blows before A.M.s friends parents arrived and broke up the fight.
A.M. identified defendant in a photographic lineup. A.M. told the detective conducting the lineup he was "60 percent sure" the person depicted in the photograph was his and Joses attacker, and the detective noted A.M.s comment, "`Looks like him but he had glasses[.]" When, on the following day, the detective showed A.M. another lineup in which the subjects wore glasses, A.M. identified defendant without hesitation. At trial, A.M. identified defendant with "one hundred percent" certainty. On cross-examination, A.M. rated his certainty at the second photographic lineup at 80 percent. Jose did not identify defendant as his attacker when given the opportunity in a photographic lineup or at trial.
II
DISCUSSION
A. Substantial Evidence Supports the Gang Enhancement
Defendant argues no substantial evidence supports the courts true finding on the alleged gang enhancement. (§ 186.22, subd. (b).) Specifically, defendant challenges the sufficiency of the evidence to support the courts conclusion FTT constituted a criminal street gang (§ 186.22, subd. (f)) whose primary activities included offenses enumerated in section 186.22, subdivision (e). The "criminal street gang" component of a gang enhancement requires proof of three elements: (1) an ongoing association involving three or more participants, having a common name or common identifying sign or symbol; (2) that the group has as one of its "primary activities" the commission of one or more specified crimes; and (3) the groups members either separately or as a group have engaged in a "pattern of criminal gang activity." (§ 186.22, subd. (f), italics added; see People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)
Attacking the second element, defendant contends the evidence did not show FTTs primary activities made it a criminal street gang. But Detective Hugo Garcia, the prosecutions gang expert, testified that FTTs primary activities included "assaults, robberies, burglaries, [and] vandalisms" (see § 186.22, subd. (e) [listing these crimes as proscribed primary activities]), and the uncorroborated testimony of a single witness is sufficient to sustain a conviction (People v. Gammage (1992) 2 Cal.4th 693, 700 (Gammage)). On appeal, we must view the evidence disclosed by the record in the light most favorable to the judgment below. (People v. Elliot (2005) 37 Cal.4th 453, 466.)
Resisting this conclusion, defendant relies on In re Jose T. (1991) 230 Cal.App.3d 1455 and similar cases for the proposition that: "Conclusional testimony that gang members have previously engaged in the enumerated offenses, based on nonspecific hearsay and arrest information which does not specify exactly who, when, where and under what circumstances gang crimes were committed, does not constitute substantial evidence." (Id. at p. 1462; accord, e.g., In re Leland D. (1990) 223 Cal.App.3d 251, 259; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003.) But this line of authority is inapposite because these cases did not involve, as here, the sufficiency of proof of a gangs "primary activities" (§ 186.22, subd. (f)), but rather proof of the separate and distinct prong of a "pattern of criminal gang activity" (ibid. ). Proof of a "pattern of criminal gang activity" requires, by statute, proof of "two or more" predicate offenses committed "on separate occasions" or "by two or more persons[.]" (§ 186.22, subd. (e); see Gardeley, supra, 14 Cal.4th at p. 625.) These particularized benchmarks for proving the "pattern of criminal gang activity" prong of section 186.22, subdivision (f), lend themselves to a "who, when, where, what" showing, as in the Jose T. line of cases.
In contrast, discerning and proving what among a groups activities constitute its "primary activities" (§ 186.22, subd. (f), italics added) is a more general inquiry. "The phrase `primary activities, as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the groups `chief or `principal occupations. . . . [¶] Sufficient proof of the gangs primary activities might consist of evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute," which may be shown by expert testimony. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324.)
Defendants challenge to Garcias ability to identify and enumerate FTTs primary activities amounts, in essence, to a challenge to his qualifications as an expert on the FTT gang. But because defendant failed to object on this ground at trial, he has forfeited this issue. (See Evid. Code, § 353; People v. Bolin (1998) 18 Cal.4th 297, 321 [assertion on appeal that witness lacked necessary expertise forfeited due to lack of objection].)
In any event, even overlooking defendants forfeiture, his challenge fails on the merits. Garcia was amply qualified to testify concerning FTTs primary activities, having interviewed approximately 750 gang members and investigated around 400 gang cases, 80 percent of which involved FTT gang members. Indeed, given that the vast majority of Garcias cases revolved around FTT members, it would be fair to say he specialized in investigating that gang, the largest in Fullerton. Defendant protests Garcia did not state explicitly that he based his opinion concerning FTTs primary activities on his voluminous history of interviews and investigations, but the trier of fact could reasonably draw this inference. (See People v. Crittenden (1994) 9 Cal.4th 83, 139 [reviewing court must presume in support of judgment every fact reasonably inferable from the evidence].) Additionally, as specific examples bolstering his opinion that FTTs primary activities included prohibited crimes, Garcia identified four admitted FTT members, including two of defendants accomplices in the instant aggravated assaults, who had recently pleaded guilty to robbery, vehicle theft, and assault, all of which are enumerated as predicate crimes in section 186.22, subdivision (e).
Because expert testimony may be premised on material that is neither admitted, nor even generally admissible, such as hearsay (Gardeley, supra, 14 Cal.4th at p. 618), it follows that defendant has no cause to complain where Garcia disclosed ample foundation for his expert opinion concerning FTTs primary activities. Defendants reliance on cases involving the prosecutions failure to establish the requisite foundation is therefore misplaced. (Compare In re Alexander L. (2007) 149 Cal.App.4th 605, 611-612 [defense objection should have been sustained where expert merely stated he "`kn[e]w" gang had been involved in crimes enumerated under the statute] with People v. Moreno (1987) 188 Cal.App.3d 1179, 1191 [failure to object generally renders hearsay competent to sustain a contested finding].) In sum, Garcia had ample expertise and foundation to opine concerning FTTs primary activities, and substantial evidence therefore supports the gang enhancement.
B. Substantial Evidence Supports the True Findings on Defendants Offenses
Defendant challenges the sufficiency of the evidence to support the trial courts conclusion he committed the assaults and street terrorism. Specifically, defendant casts A.M.s pretrial and in-court eyewitness identifications of him as "`inherently insubstantial testimony." Defendants contention is without merit.
The uncorroborated testimony of a single witness is sufficient to sustain a conviction. (Gammage, supra, 2 Cal.4th at p. 700.) Consequently, an eyewitnesss in-court identification alone may constitute substantial evidence supporting the judgment. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497; People v. Hughes (1969) 271 Cal.App.2d 288, 291.) Where, as here, the circumstances surrounding the identification and its weight have been exhaustively investigated at trial, the trier of facts evaluation of that evidence — reflected in the verdict — is binding on the reviewing court. (Gustavo M., at p. 1497.) An appellate court may not reject evidence as inherently improbable unless it is shown to be "`physically impossible or so clearly false and unbelievable that reasonable minds may not differ with respect thereto." (People v. Jenkins (1965) 231 Cal.App.2d 928, 931.)
For "`a reviewing court to set aside a jurys finding of guilt[,] the evidence of identity must be so weak as to constitute practically no evidence at all." (People v. Prado (1982) 130 Cal.App.3d 669, 674, abrogated on other grounds by People v. Howard (1992) 1 Cal.4th 1132, 1175, fn. 17.) Thus, "`it is not essential that a witness be free from doubt as to ones identity" to sustain a conviction. (Ibid.) Rather, a conviction may stand where an eyewitness fails to select the defendants photograph from a photographic display; or an eyewitness provides a description of the assailants inconsistent with that of the defendant. (Id. at p. 674.) Such failures and inconsistencies impact only the weight of the evidence, not its sufficiency. (Ibid.) It is the jurys exclusive province to assess the credibility of the witnesses, resolve conflicts in the testimony, and weigh the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) The fact the circumstances could be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Accordingly, a defendant "bears an enormous burden" when challenging the sufficiency of the evidence. (Sanchez, at p. 330.)
Defendant relies on People v. Reyes (1974) 12 Cal.3d 486, 499 (Reyes), for an example of "inherently insubstantial testimony." Defendants reliance is misplaced because the facts in Reyes are strikingly dissimilar. There, unlike here, the witness could not identify the defendant at trial. She saw a man leaving the murder victims apartment from across a street, 126 feet away, who she merely surmised resembled defendant because of his long hair, whereas a codefendants trial confession exonerated the defendant. (Id. at pp. 498-499.) Defendant here, in contrast, attacked Jose just a few feet away from A.M., and A.M. recognized defendant from his encounter with him just a day earlier. In alternate, rather puzzling tacks, defendant cites inapposite cases dealing with confessions obtained through coercive police interrogation and proof of guilt through circumstantial evidence rather than identification, which we decline to address because defendant fails to explain their relevance. (Cal. Rules of Court, rule 8.204(a)(1)(B).)
Ignoring the standard of review and viewing the evidence most favorably to his position, defendant points out a host of "problems" inherent in A.M.s multiple identifications. He asserts a "carryover" effect from the first time A.M. identified defendant in a photographic lineup diluted the probity of the second photo array, in which A.M. again identified him. Defendant also highlights the nighttime hour of the attack and the fact A.M. was not wearing his glasses. The evidence showed, however, that lights illuminated the walkway, A.M. considered the area well-lit, and testified he needed eyeglasses only to view faraway objects. Noting Joses attackers wielded sticks and bottles, defendant cites his experts testimony that weapon fixation and multiple assailants distract focus on any one person and can negatively impact accurate identification.
But all these matters, including any weaknesses or inconsistencies in eyewitness testimony, are solely for the trier of fact to evaluate. (See, e.g., People v. Elwood (1988) 199 Cal.App.3d 1365, 1372; People v. Fagalilo (1981) 123 Cal.App.3d 524, 530-531.) There was nothing improbable about A.M.s identification of defendant as Joses attacker; rather, the jury could reasonably find persuasive A.M.s proximity to the fight, the fact he had a 10-minute encounter with defendant the day before, and the consistency of his multiple pretrial and in-court identifications of defendant. Defendant relies on A.M.s admission he only focused on defendants appearance for eight or so seconds in his earlier encounter with him, but the trier of fact could reasonably view this unique opportunity as a reason to credit rather than discredit A.M.s testimony. In short, we simply may not second-guess the trier of facts determination.
III
DISPOSITION
The juvenile courts order sustaining the petition against defendant is affirmed.
WE CONCUR:
FYBEL, J.
IKOLA, J. --------------- Notes: All further statutory references are to the Penal Code unless specified otherwise.