Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L. Hicks, Judge, Super. Ct. No. VCF127019A.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
During the early morning hours of May 6, 2004, appellant Miguel “Mikey” Ontiveros Cisneros fatally shot Everado “Baloney” Marquez while Marquez was sleeping. Marquez suffered two gunshot wounds to the head and four gunshot wounds to the neck, right shoulder and right arm. Ulises Alvarez acted as the lookout and the murder weapon was found in his home.
About two weeks prior to the homicide, appellant and Ernesto Garcia discussed a plan to lure Marquez outside his home and shoot him. Garcia subsequently made an unsuccessful attempt to obtain a firearm for appellant. Garcia did not participate in the fatal shooting.
A gang expert, Tulare County Deputy Sheriff Joe Aguilar, testified that appellant was validated as a Northerner on March 1, 2002, but he subsequently switched gang affiliations and was a Southerner on May 6, 2004. Aguilar testified that “it’s my belief that this was a typical gang related murder for revenge and also for the unusual practice of actually switching gangs.” In Aguilar’s opinion, appellant killed Marquez “to switch sides to the [S]outhern gang.” Aguilar also opined that the killing benefited the Southern gang.
The Northern gang is also known as the Nortenos and the Southern gang is known as the Surenos. The Northern gang originated from the Nuestra Raza prison gang and the Southern gang originated from the Mexican Mafia prison gang. To enhance comprehensibility, we will use the terms “Northern gang” and “Southern gang” and will refer to their respective members and associates as “Northerners” and “Southerners.”
Appellant was convicted after jury trial of first degree murder, conspiracy to commit murder and carrying a concealed weapon in a vehicle. (Pen. Code, §§ 187, subd. (a); 182, subd. (a)(1); 12025, subd. (a)(1).) The jury found true a street gang special circumstance allegation, a street gang enhancement and a personal firearm use enhancement, all of which were attached to the murder count. (§§ 12022.53, subd. (d); 186.22, subd. (b)(1); 190.2, subd. (a)(22).)
Unless otherwise specified, all statutory references are to the Penal Code and all dates refer to 2004. To avoid confusion, some of the individuals involved in this case have been referenced by their first names; no disrespect is intended or implied.
Appellant was sentenced for the murder to life without parole plus a consecutive term of 25 years to life; a concurrent term of life without parole was imposed for the conspiracy and a concurrent one-year jail term was imposed for the concealed weapon offense.
Appellant challenges the sufficiency of the evidence supporting the street gang enhancement and the street gang special circumstance. Also, he argues that Aguilar’s testimony improperly embraces ultimate issues and lacks adequate foundation. None of appellant’s arguments are persuasive; we will affirm.
FACTS
I. Facts related to the murder
Approximately three weeks before the murder appellant and someone named “Will” confronted Marquez and his brother, Juan. They accused Marquez of stealing appellant’s car.
After retiring on the night of May 5, Juan was awakened by the sound of about six gunshots. He looked out his bedroom window and saw appellant running toward a neighbor’s house. Alvarez was waiting for appellant in a neighbor’s driveway. Juan went to Marquez’s bedroom and saw that his brother had been shot.
Former Tulare County Deputy Sheriff Matthew Doherty was dispatched to Marquez’s residence at approximately 2:50 a.m. Juan escorted him to a rear bedroom where Marquez was lying on the floor. Marquez had been shot multiple times. A sliding glass door and screen from the rear bedroom to the backyard was partially open.
Six nine-millimeter shell casings were recovered from the backyard, within a few feet of the sliding door. A handle bolt from a firearm was found near a backyard fence.
Shoe impressions made by two different pairs of shoes were found leading to and from the house. The shoe impressions were made by a pair of Lugz shoes and a pair of K-Swiss shoes.
At approximately 9:30 a.m., a Camaro driven by Omar Barjas was stopped by the police. Appellant and Sergio Trujillo were passengers in this vehicle. A .32-caliber handgun with one chambered live round was found in the vehicle. Appellant was arrested. He was wearing a black shirt, blue jeans and a pair of Lugz shoes.
This formed the factual basis for count 3.
A gunshot residue test disclosed two particles of residue on appellant’s right hand and one particle of residue on his left hand.
A search warrant was served on appellant’s house the evening of May 6. Among other items, a metal box was found in one of the bedrooms. It contained miscellaneous rifle sights and screws for a Hi-Point model 995 rifle and an empty box of ammunition marked 9 x 19.
On May 13, a search warrant was served on Alvarez’s house. A pair of K-Swiss tennis shoes was found in a bedroom shared by Alvarez and his brother. A Hi-Point model 995 rifle that was missing its bolt and sighting scope was found wrapped in a black plastic bag on the top shelf of their bedroom closet (the Hi-Point rifle). The Hi-Point rifle’s magazine had a 10-round capacity; it contained four live rounds.
Ballistic testing revealed that the casings found at Marquez’s residence had been fired by the Hi-Point rifle. The bolt found in the backyard fit the Hi-Point rifle. The Hi-Point rifle used 9 x 19 ammunition.
A crime scene investigator compared photographs of the Lugz and K-Swiss shoe tracks found outside Marquez’s house with impressions made from appellant’s Lugz shoes and the K-Swiss shoes that were found at Alvarez’s house. The investigator concluded that the tracks found at the crime scene are highly consistent in size, shape and tread designs with appellant’s Lugz shoes and the K-Swiss shoes found at Alvarez’s house. The investigator opined that it is “highly likely” that these shoes created the tracks found at the Marquez’s house.
Lorenzo Perez testified that he “was getting drunk with … [his] friends” on the night of May 5 outside Alvarez’s house. Appellant and Alvarez were among the people present. Appellant said that he thought that Marquez stole his car. At some point during the evening, appellant and Alvarez left the group, then returned, then left again and did not return.
Detective Arnold testified that Perez told him that he saw appellant on the morning following the homicide. Appellant said that he went into Marquez’s backyard and “I shot.” Also, Perez said that appellant had a small handgun wrapped in a rag in his waistband on the night of the homicide. Arnold showed Perez the Hi-Point rifle. Perez said that he saw this weapon in the trunk of appellant’s car a year ago. At trial, Perez denied making these statements to Arnold.
Eliseo Sanchez testified that he and Perez arrived at Alvarez’s house around 8:00 p.m. on May 5. Appellant arrived a few minutes later. Appellant had a .22-caliber handgun in his waistband. Appellant complained that Marquez stole his car. Appellant said that he was going to shoot Marquez. Sanchez heard appellant say to Alvarez, “I only got one bullet left, let’s go to my house and go get the gun.” Alvarez replied to appellant that “he had his back,” meaning Alvarez would “help [appellant] out.” Appellant and Alvarez left together.
II. Facts related to the conspiracy to commit murder
Ernesto Garcia testified that approximately two weeks before Marquez was killed, he had a conversation with appellant at appellant’s house. Appellant said that Marquez stole his car. Appellant showed him a pendant in the shape of a scorpion on a silver chain. Appellant said that the pendant had been in his car when it was stolen. Appellant said that he found the pendant in a car belonging to Marquez’s mother. Appellant said that he wanted to go to Marquez’s house and shoot Marquez.
Garcia testified that during this conversation appellant and he discussed a plan in which they would go to Marquez’s house. Garcia would knock on the door and draw Marquez outside. Once Marquez was outside, appellant would shoot him. Garcia testified that he was going to lure Marquez outside “[b]ecause I’m good friends with [him].” There was a “mention made of [Garcia] trying to get a gun.” Appellant said he had a handgun but he was not planning on using it to shoot Marquez.
Garcia testified that sometime after this conversation Joaquin Vasquez, Jr., came to his apartment. Vasquez said that he had two guns. Garcia said that he asked Vasquez for the guns. Vasquez said the guns were at Guillermo Maldonado’s house. Vasquez and Garcia went to Maldonado’s house to retrieve the guns. Garcia asked Maldonado for the guns. Maldonado “[t]old [Garcia] no, that it was his dad’s gun.” Garcia testified that he “took these steps on [his] own to try to secure a weapon.”
Maldonado testified that Garcia and Vasquez came to his house and asked to borrow a gun. Maldonado said that he did not have a gun. Maldonado asked Garcia why he wanted a gun. Garcia replied, “Cause me and my friend Mikey, we’re gonna go shoot Baloney.” This conversation occurred three to five days before Marquez was killed.
III. Expert gang testimony
Tulare County Deputy Sheriff Joe Aguilar testified as an expert on gangs in Pixley. An Evidence Code section 402 hearing was conducted to determine whether there was adequate foundation for Aguilar’s testimony. Appellant did not challenge Aguilar’s expertise or qualifications. The court found sufficient foundation for Aguilar’s opinions and rejected appellant’s Evidence Code section 352 objection, determining that the probative value of Aguilar’s opinion outweighed its prejudicial effect.
At trial, Aguilar testified that he has been assigned to the gang unit since 1995. The “gang unit keeps track of gang members, identifies them. When they commit crimes, we arrest them. We also serve search warrants and also do probation searches.” He has hundreds of hours of training on the topic of gangs. It is part of his job to keep up to date on gang activities in Tulare County. He was assigned to gang suppression in the southern area of Tulare County, including Pixley, for five years prior to his current assignment to gang prevention. Aguilar comes into contact with gang members on a daily basis. He helps serve search warrants at gang members’ houses about once a month. He sits in on interviews with gang members about once every other month. He reviews police reports involving gang members on a routine basis. He talks to officers from other agencies about gang activities during Gang Task Force meetings.
Aguilar is familiar with gang activity in Pixley. Pixley is a small community and it does not have a large number of gang members. The Southern gang and the Northern gang are rivals. Each gang has a characteristic color, number, graffiti and hand signs. Gang activity began in Pixley in the 1970’s. Northerners, claiming number 14 and the color red, became active in the area. In the late 1980’s Southerners, claiming the number 13 and the color blue, became active in the town.
In 2004, there was a lot of competition between the Northerners and the Southerners “to show themselves and to try and recruit new members.” At that time, there were approximately 30 Southern gang members in Pixley. There were approximately 60 to 80 Northerners. Although the Northern gang members were more numerous, “their members were not as active.” The Northerners “were very disorganized as far as any leadership. There wasn’t any, so each group would do their own thing.” Aguilar personally spoke with eight Pixley Southerners and about 12 Pixley Northerners during the late 1990’s to 2004.
The gangs in Pixley are “very unsophisticated and small groups that are very disorganized.” As a result, “they do a lot of things that don’t make sense in the gang culture” They do “not [follow] the usual gang rules.”
Aguilar testified that the Northern gang’s primary activities are “[m]ostly crimes of opportunity. The theft of vehicles, some drug sales. They participate in quite a few beatings. If they believe they have a rival, they will go out and harass them. And if they can, they’ll get him, beat him up.” Such beatings involve use of a bat or stick if one is available. The Southern gang’s primary activities are “[c]arjackings, theft, burglaries, [simple and armed] assaults.”
In order to validate someone as a gang member the person must meet at least three criteria that are recognized as being mostly used by gang members. The criteria include wearing or displaying gang symbols, associating with gang members, prior arrests for a gang-related crime, identification by a rival and self-admission as a gang member.
Aguilar testified that in his opinion Marquez “meets the criteria” of a Northerner. Appellant’s brothers, Robert and Rene, are Northerners. Garcia is a Northern associate.
Juan testified that his brother dropped out of the Northern gang two years before he was murdered. Garcia testified that he did not associate with any gangs and that he believes Marquez dropped out of the Northern gang some time before he was killed.
Alvarez and Omar Barajas are self-admitted Southerners.
Aguilar testified that appellant was validated as a Northerner on March 1, 2002. However, on May 1, 2004, appellant was observed in the company of validated Southerners. On May 6, 2004, appellant was stopped by police officers in the company of Southerners. The car in which he was traveling exhibited a Southern symbol. Aguilar testified that, based on appellant’s writings, appellant has been “flip flopping” between Southerners and Northerners since 1999. Aguilar opined that appellant was an active participant in the Southern gang at the time of the shooting. He reached this conclusion because appellant “contacted a [S]outhern gang member, who in turn went with him and assisted him as being a lookout while he went and [shot Marquez].”
Garcia testified that appellant was not in a gang. Sanchez testified that appellant socialized with both Northerners and Southerners. Perez testified that he has no opinion whether appellant was a gang member.
Aguilar testified that the homicide was gang related. He testified that “it’s my belief that this was a typical gang related murder for revenge and also for the unusual practice of actually switching gangs.” In Aguilar’s opinion, appellant killed Marquez “to switch sides to the [S]outhern gang.” By shooting Marquez, appellant put in “work” for the Southerners. This proved to “the other gang that he’s worthy of joining.” Aguilar was aware that appellant believed that Marquez stole his car. However, Aguilar is of the opinion that the murder “was more for the benefit of the gang.”
Aguilar opined that the murder benefited the Southerners because it “would establish their notoriety and basically terrorize the other ones through showing to what lengths they would go to.” Also, “[i]n their minds it gives them prestige and their members are to be feared because they’re obviously capable of something like that.” This makes crimes easier for other Southerners to commit future crimes because “[w]ord would get out that that had happened. If they went out and confronted someone else, the victim, if they had heard about this would be more -- would not resist because for fear for his life knowing that they had already committed a murder, they would do whatever it is they told them to and not challenge them.”
DISCUSSION
The gang enhancement and gang special circumstance are supported by substantial evidence, including properly admitted expert opinion testimony.
I. The applicable statutory provisions are settled.
Statutory language effective in May 2004 will be set forth.
Section 186.22, subdivision (b)(1), provides for increased punishment for any person who is convicted of a felony that is “‘committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.’” (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)
Section 190.2 provides that the penalty for a defendant who is found guilty of first degree murder is death or life imprisonment without the possibility of parole if “[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.” (§ 190.2, subd. (a)(22).)
Subdivision (f) of section 186.22 provides that the term “‘criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”
The term “pattern of criminal gang activity” is defined in subdivision (e) of section 186.22. It “means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [25 listed crimes], provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.”
II. Aguilar’s testimony is supported by an adequate foundation.
Appellant challenges the adequacy of the foundation supporting Aguilar’s testimony. This contention is meritless.
While gang experts rely on their personal observations and experience, they also routinely rely on hearsay information to form their opinions. (See Gardeley, supra, 14 Cal.4th at pp. 618-619.) Experts may rely upon conversations with past and present members of various gangs to obtain the necessary information. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1384-1385 (Olguin).) They may rely on photographs of the defendant making a gang sign and on writings that displayed his gang affiliation. (People v. Gamez (1991) 235 Cal.App.3d 957, 967 (Gamez).) Additionally, gang experts regularly use materials they receive from various law enforcement personnel, probation officers, and social workers. (People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9.) Police reports and field identification cards are admissible under the public records exception to the hearsay rule when the reports contain the observations of police officers acting in their official capacity, and experts may rely on such reports in forming their opinions. (See, e.g., Rupf v. Yan (2000) 85 Cal.App.4th 411, 430, fn. 6 [police reports]; People v. Ruiz (1998) 62 Cal.App.4th 234, 241 [field identification cards].)
Experts may rely on this type of information to provide opinion “testimony about the size, composition or existence of a gang [citations], gang turf or territory [citations], an individual defendant’s membership in, or association with, a gang [citations], the primary activities of a specific gang [citations], motivation for a particular crime, generally retaliation or intimidation [citations], whether and how a crime was committed to benefit or promote a gang [citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or attire [citations].” (People v. Killebrew (2002) 103 Cal.App.4th 644, 657, fn. omitted (Killebrew).) Without this type of information, law enforcement personnel could not develop the necessary expertise to provide helpful testimony and only gangsters could render “expert” opinions on gang culture and crimes.
Aguilar testified that he has worked in the gang unit in Tulare County since 1995. He is currently assigned to gang prevention but before this assignment spent five years in gang suppression. He has received hundreds of hours of training. He personally contacts gang members, routinely reviews police reports involving gang members, participates in searches of gang members’ homes, sits in on interviews with gang members, and talks with other officers during Gang Task Force meetings. He has spoken with eight Southerners and 12 Northerners in Pixley. This testimony adequately established the foundation necessary to support Aguilar’s opinions.
Appellant contends that In re Alexander L. (2007) 149 Cal.App.4th 605 is indistinguishable from this case. We disagree. There, the appellate court reversed a street gang enhancement because of the insufficiency of the evidence proving the nature of the gang’s primary activities. The gang expert, Lang, testified that he knew that the gang at issue, Varrio Viejo, had been involved in numerous statutorily enumerated crimes. This was declared inadequate by the appellate court because “No specifics were elicited as to the circumstances of these crimes, or where, when, or how [the expert] had obtained the information. He did not directly testify that criminal activities constituted Varrio Viejo’s primary activities.” (Id. at pp. 611-612.) Furthermore, the appellate court concluded that Lang’s testimony lacked adequate foundation “because information establishing reliability was never elicited from him at trial. It is impossible to tell whether his claimed knowledge of the gang’s activities might have been based on highly reliable sources, such as court records of convictions, or entirely unreliable hearsay.” (Id. at p. 612, fn. omitted.)
In contrast to In re Alexander L., a section 402 hearing was held in this case to determine the foundation for Aguilar’s opinions. Aguilar’s testimony was based on his personal observations during his work in the gang unit and his reliance on reliable hearsay sources. As previously discussed, Aguilar testified that he worked in the gang suppression area for five years before his current assignment to gang prevention. Aguilar has spent hundreds of hours in gang training. He participates in Gang Task Force meetings with his colleagues and he reviews police reports involving gang members. Aguilar converses with gang members, sits in on interviews with gang members and participates in searches of their homes.
This case bears a closer resemblance to Gardeley, supra, 14 Cal.4th 605, in which our Supreme Court upheld a gang expert’s opinion testimony that was based on conversations with the defendants and other gang members, his personal investigation of gang-related crimes, and information from his colleagues and various law enforcement agencies. (Id. at pp. 612, 618-620.) Following and applying Gardeley, we conclude that Aguilar’s opinions are supported by adequate foundation.
III. Aguilar did not exceed the permissible scope of expert opinion evidence.
Appellant argues that Aguilar was improperly permitted to express an opinion about two ultimate questions of fact that were reserved for the jury -- whether appellant was an active Southerner on May 6 and whether the shooting benefited the Southerners. Appellant contends that admission of Aguilar’s opinions that Marquez was an active Southerner on May 6 and that the shooting benefited the Southerners infringed his constitutional jury trial and due process rights. We disagree. As will be explained, Aguilar’s testimony fell within the permissible scope of expert gang testimony and appellant’s constitutional rights were not infringed.
A trial court has wide discretion to admit or exclude expert testimony. Appellate courts do not interfere unless an abuse of discretion is clearly shown. (People v. Valdez (1992) 2 Cal.4th 271, 298.) “‘There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.’ [Citations.]” (People v. Valdez (1997) 58 Cal.App.4th 494, 507 (Valdez).) Admission of expert testimony whether the defendant is an active gang member or associate and whether a crime would benefit a gang routinely are upheld as falling within the scope of proper questioning. (Gardeley, supra, 14 Cal.4th at pp. 619-620; People v. Ward (2005) 36 Cal.4th 186, 210; Valdez, supra, 58 Cal.App.4th at pp. 507-509; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1209; Olguin, supra, 31 Cal.App.4th at pp. 1370-1371.) However, a gang expert may not testify whether an individual possessed a specific intent or knowledge. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1197; Killebrew, supra, 103 Cal.App.4th at p. 658.)
Appellant’s claim that Aguilar’s testimony improperly removed from the jury's consideration two elements of the criminal street gang enhancement is meritless. Aguilar did not express an opinion on appellant’s ultimate guilt or innocence and he did not opine whether appellant possessed the requisite specific intent. Aguilar’s testimony aided the jurors and did not supplant them.
In this case, expert testimony concerning gang culture and psychology was reasonably necessary because concepts such as switching gangs due to lack of respect, putting in work for a gang and increased status due to commission of a violent crime are beyond common experience. As is explained in Olguin, supra, 31 Cal.App.4th 1355, “It is difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes ‘respect.’” (Id. at p. 1384.) Aguilar’s testimony that, in his opinion, appellant was a Southerner on May 6 and that the shooting benefited the Southerners did not exceed the bounds of permissible expert testimony. Neither abuse of discretion nor infringement of any of appellant’s constitutional rights appears.
IV. All of the contested elements of the gang enhancement and gang special circumstance are supported by substantial evidence.
Appellant challenges the sufficiency of the evidence proving four elements of the gang enhancement and gang special circumstance: (1) the shooting was gang related and it benefited the Southern gang; (2) appellant was a Southerner when he murdered Marquez; (3) the Southern gang’s primary activities include the commission of one or more enumerated offenses; and (4) Southerners have engaged in a pattern of criminal gang activity. As we will explain, the record contains substantial evidence proving all of the disputed elements.
The applicable standard of appellate review is undisputed. When assessing the sufficiency of the evidence, a reviewing court considers the entire record in the light most favorable to the judgment below to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People. v. Hawkins (1995) 10 Cal.4th 920, 955.) The reviewing court presumes in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, including reasonable inferences based on the evidence. (People v. Tran (1996) 47 Cal.App.4th 764, 793.) We do not reassess the credibility of witnesses, reweigh evidence or determine if other inferences more favorable to the defendant could have been drawn from it. (Olguin, supra, 31 Cal.App.4th at p. 1382.)
A. The People proved that the murder benefited the Southern gang.
Appellant challenges the sufficiency of the evidence proving that the shooting was a gang-related crime. Appellant argues that there is ample evidence proving that he killed Marquez in revenge because he believed that Marquez stole his car. In appellant’s view, there is nothing but sheer conjecture and speculation supporting the prosecution’s theory that the shooting was gang related and that it benefited the Southerners. This argument fails because it is premised on a selective interpretation of the record.
Appellant ignores the significance of the evidence demonstrating that he committed the murder with the assistance of a Southerner. Aguilar testified that Alvarez was a Southerner. Alvarez accompanied appellant to Marquez’s house and acted as a lookout while appellant shot Marquez. The murder weapon was found wrapped in plastic inside the closet of the bedroom Alvarez shared with his brother. Additionally, when appellant was arrested a few hours after the murder he was in the company of other Southerners.
Furthermore, appellant ignores Aguilar’s expert testimony that in his opinion, the killing was primarily gang related and that it benefited the Southerners. Aguilar explained that the killing facilitated appellant’s switch from the Northern gang to the Southern gang. By killing Marquez, he proved his worth to the Southerners and gave them a reason to accept him. Aguilar testified that the commission of this murder benefited the Southerners by giving them notoriety for violence and that it increased their prestige in the gang subculture. This notoriety instills fear in others. Such fear facilitates the commission of other crimes because victims will be less likely to resist.
A jury reasonably could, and did, determine from the entirety of this evidence that the murder was committed to benefit the Southern gang and that appellant killed Marquez with the specific intent to promote or assist the Southern gang.
B. The People proved that appellant was an active participant in the Southern gang on May 6.
Appellant also challenges the sufficiency of the evidence proving that appellant was an active participant in the Southern gang on May 6. We are not persuaded.
Active participation in the context of criminal street gangs is defined as “involvement with a criminal street gang that is more than nominal or passive.” (People v. Castenada (2000) 23 Cal.4th 743, 747.) Appellant was first observed in the company of validated Southerners on May 1. As previously discussed, Alvarez, who is a Southerner, assisted in the homicide. He acted as a lookout and hid the murder weapon after the shooting. When appellant was arrested a few hours after the homicide, he was traveling in a car with Southerners. This car exhibited a Southern gang symbol. In addition to the above, Aguilar testified that in his opinion appellant was a Southerner on May 6, based on appellant’s association with Southerners before, during and after the homicide. A jury could reasonably determine from the entirety of this evidence that appellant was an active participant in the Southern gang when he killed Marquez. (See, e.g., In re Jose P. (2003) 106 Cal.App.4th 458, 467-468.)
C. The People proved that Southern gang’s primary activities include the commission of one or more offenses enumerated in subdivision (e) of section 186.22.
Next, appellant argues that the People failed to prove that a “primary activity” of the Southerners is the commission of one or more enumerated offenses listed in section 186.22, subdivision (e). This contention does not withstand scrutiny.
The primary activity element is a proper subject of expert opinion (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1004-1005) and it can be satisfied by the gang expert’s testimony. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324; Gardeley, supra, 14 Cal.4th at p. 620.) Here, Aguilar’s testimony satisfied the primary activity element. He testified that the Southern gang’s primary activities are “[c]arjackings, theft, burglaries, [simple and armed] assaults.” Assault with a deadly weapon or by means of force likely to produce great bodily injury, grand theft, burglary and carjacking are all among the offenses enumerated in section 186.22, subdivision (e). (§ 186.22, subds. (e)(1),(9),(10), (11), (21).)
Aguilar’s testimony about the Southern gang’s primary activities is supported by an adequate foundation. Aguilar testified that the Southern gang originated from the Mexican Mafia prison gang. The Southern gang claims the color blue and the number 13. Southerners use a distinctive hand sign. There are no more than 30 Southerners in Pixley and Aguilar has met eight of these individuals. As previously discussed, Aguilar routinely reviews police reports involving gang members, participates in searches of gang members’ homes, has personal contact with gang members and talks with other officers during Gang Task Force meetings. Aguilar has hundreds of hours of training and he worked for five years in gang suppression before moving to gang prevention. This testimony is sufficient to support Aguilar’s opinion about the Southerner’s primary activities. (In re Jose P., supra, 106 Cal.App.4th at p. 467; Gardeley, supra, 14 Cal.4th at pp. 611, 620.)
Accordingly, we conclude that the People adequately proved that the Southern gang’s primary activities are the commission of one or more offenses enumerated in subdivision (e) of section 186.22.
D. The People proved that the Southern gang has engaged in a pattern of criminal activity.
Finally, appellant argues that the prosecution failed to prove that Southerners have engaged in a “pattern of criminal gang activity” by committing two or more predicate offenses. Again, we disagree.
“The term ‘pattern of criminal gang activity’ as defined in section 186.22, subdivision (e), only requires: the attempted or completed commission or a conspiracy to commit two or more of the section 186.22[,] subdivision (e) enumerated offenses; one of the offenses must have occurred after September 26, 1988 .… [T]he last of the two requisite offenses must have occurred within three years after the first crime; the predicate crimes must have either been committed on separate occasions; or by at least two different persons.” (People v. Augborne (2002) 104 Cal.App.4th 362, 374-375 (Augborne).)
The predicate offenses need not be gang related. (Augborne, supra, 104 Cal.App.4th at p. 375.) The People are not required to prove that the person or persons who committed the predicate offenses were gang members when they committed these crimes. (Ibid.)
The prosecution relied on appellant’s commission of Marquez’s murder and his participation in the conspiracy with Garcia to commit murder as the two predicate offenses necessary to qualify the Southern gang as a criminal street gang. Appellant argues that because the jury’s verdict failed to specify an overt act committed in furtherance of the conspiracy, the only overt act presented to the jury was the murder. Therefore, the conspiracy was committed at the same time as the murder. As a result, the People failed to prove that the two predicate offenses occurred at different times. We are unpersuaded.
As will be explained, although the verdict form did not specify an overt act, the trial evidence, the jury instructions and the closing arguments all support the conclusion that in convicting appellant of conspiracy, the jury necessarily determined that Garcia unsuccessfully attempted to secure a firearm for appellant. In doing so, Garcia committed an overt act in furtherance of the conspiracy. At no time during trial was it asserted that the jury could find appellant guilty of conspiracy even if it rejected testimony establishing that Garcia unsuccessfully attempted to secure a gun. The theory that appellant could be convicted of conspiracy based solely on his conversation with Garcia and the actual homicide was never presented to the jury; it was first raised by appellant in this court.
Conspiracy is an inchoate crime that does not require commission of the target offense. (People v. Swain (1996) 12 Cal.4th 593, 599.) “A criminal conspiracy exists when two or more persons agree to commit a crime and do some overt act in furtherance of the agreement.” (In re Nathaniel C., supra, 228 Cal.App.3d at p. 998.) Appellant assumes that the jury was required to unanimously find a specific overt act. Not so. In People v. Russo (2001) 25 Cal.4th 1124, our Supreme Court explained, as follows:
“We do not doubt that the requirement of an overt act is an element of the crime of conspiracy in the sense that the prosecution must prove it to a unanimous jury’s satisfaction beyond a reasonable doubt. But that element consists of an overt act, not a specific overt act. Moreover, Penal Code section 182, subdivision (b), merely says one of the acts must be proved; it does not say about what the jury must be unanimous.” (Id. at p. 1134.)
Appellant and Garcia were alleged as coconspirators. The amended information alleged two overt acts in furtherance of the conspiracy: (1) Garcia contacted Vasquez to secure a firearm; and (2) Garcia contacted Maldonado to secure a firearm. During the section 402 hearing, counsel and the court discussed questions surrounding the predicate offenses. In relevant part, the prosecutor argued that the conspiracy preceded the murder and was completed when Garcia attempted to procure a gun for appellant.
Garcia admitted both of the overt acts that were alleged in the information during the course of his testimony. Garcia testified that approximately two weeks before Marquez was killed, he and appellant had a conversation at appellant’s house. A plan was discussed in which appellant and he would go to Marquez’s house and he would knock on the door to draw Marquez outside. Once Marquez was outside, appellant would shoot him. Although appellant possessed a handgun, appellant and Garcia discussed trying to obtain another firearm. Garcia testified that a few days after this conversation Vasquez came to his apartment. Vasquez said that he had two guns that were at Guillermo Maldonado’s house. Vasquez and he went to Maldonado’s house to retrieve a gun. Maldonado refused to give it to them, saying that it belonged to his dad.
Maldonado’s testimony largely corroborates Garcia. Maldonado testified that Garcia and Vasquez came to his house to borrow a gun. Maldonado said that he did not have one. Maldonado asked Garcia why he wanted a gun. Garcia replied, “Cause me and my friend Mikey, we’re gonna go shoot Baloney.” This conversation occurred three to five days before Marquez was killed.
During the prosecutor’s initial closing argument, he did not mention the overt act requirement. It was defense counsel who informed the jury of the specific overt act that Garcia was alleged to have taken in furtherance of the conspiracy. Defense counsel argued:
“Look at this whole conspiracy allegation. It’s based upon one conversation that Ernesto had with Miguel in which Ernesto alleges Miguel was upset his car was stolen so he wanted to go shoot [Marquez]. Discussed [Ernesto] would call him out and then Miguel would shoot him with the handgun. One conversation when I asked Ernesto, ‘You’re going to get the gun, was that discussed?’ He said this is something he did on his own. My client didn’t allegedly direct him to get a gun. It’s something he did on his own unsuccessfully. Ernesto is not charged with going over there on May 6th and shooting or being with my client, allegedly, to this heinous act.
“There’s no mention of him going over and scouting the Marquez’s residence or anything of that nature. What overt acts did he take to help this? Conversation is what he had, is what he’s telling us. Tried to get a gun. That’s about it. Nothing else. Conversation turns into conspiracy.” (Emphasis added.)
The prosecutor built on defense counsel’s argument during his rebuttal, reiterating that the crucial facts to prove the conspiracy are the discussion between Garcia and appellant and Garcia’s unsuccessful attempt to obtain a firearm from Maldonado. The prosecutor argued:
“Conspiracy is not that difficult of a concept. You intend to agree, you come to an agreement to commit a crime. In this case, murder.
“That’s all it takes is that meeting between two people….
“There’s more than just that one conversation. Guillermo, the 16-year-old kid, tells you, ‘Yeah, Ernesto did come by looking for a gun. He said he and Mikey were going to go kill Baloney.[’] Ignore that if you want to acquit him. Ignore that evidence, too, which wasn’t touched on.
“The conspiracy is there because the conspiracy is there that they have this agreement to do this has been shown, and it has not been refuted by any impeachment that Guillermo has reason to lie about this, anything.”
(Emphasis added.)
In relevant part, the jury was instructed that the People must prove that defendant agreed with Garcia to commit murder and that the defendant or Garcia “committed at least one of the overt acts alleged to accomplish the murder.” The jury was instructed that an overt act is an act done by one or more of the conspiracy’s members to help accomplish the agreed upon crime. It “must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself.” (Emphasis added.)
From the foregoing, it is apparent that it was never argued to the jury or implied in the instructions that appellant could be found guilty of conspiracy solely as a result of his conversation with Garcia and his commission of the murder. The possibility that the murder could constitute an overt act was not presented to the jury. The conspiracy count was treated entirely separate from the homicide count. Therefore, we conclude that in convicting appellant of conspiracy, the jury necessarily determined that Garcia unsuccessfully attempted to obtain a firearm from Maldonado. In so doing, Garcia committed an overt act in furtherance of the conspiracy. Thus, the conspiracy was committed prior to the murder.
It is immaterial that appellant was still a Northerner when he and Garcia conspired to kill Marquez and it is irrelevant that Garcia was loosely affiliated with the Northerners. Augborne, supra, 104 Cal.App.4th 362 held that “none of the elements of the gang enhancement statute require the two or more persons committing the two predicate crimes be gang members at the time the offenses were committed.” (Id. at p. 375.) It is equally immaterial that the conspiracy was not intended to benefit the Southerners. (Gardeley, supra, 14 Cal.4th at pp. 620-621; Augborne, supra, 104 Cal.App.4th at p. 375.) Once appellant became a Southerner, enumerated crimes that appellant committed before becoming associated with this gang, such as conspiracy to commit murder, can constitute valid predicate offenses within the meaning of section 186.22.
Pursuant to Government Code section 68081, the parties filed supplemental briefing addressing this point.
Accordingly, we find that the People adequately proved that appellant committed two predicate offenses on separate occasions. Thus, the record contains substantial evidence establishing the pattern of criminal gang activity element of the gang enhancement and gang special circumstance.
CONCLUSION
Through a combination of properly admitted expert gang testimony, physical evidence and the testimony of percipient witnesses, the prosecution met its burden of proving all the elements required to establish the contested gang enhancement and gang special circumstance. In arguing otherwise, appellant has presented “a selective view of the evidence and disregards the reasonable inferences supporting the judgment.” (In re Nathaniel C., supra, 228 Cal.App.3d at p. 998.) Having reviewed the entirety of the evidence in the light most favorable to the jury’s verdicts and findings, we conclude it is more than sufficient to support the true findings on the gang enhancement and gang special circumstance.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Harris, Acting P.J., Cornell, J.