Opinion
E066629
01-25-2018
THE PEOPLE, Plaintiff and Respondent, v. MOISES DELAROSA, Defendant and Appellant.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1503747) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
Law enforcement officers attempted to stop appellant, Moises Delarosa, when he was riding a bicycle on the sidewalk within a gang injunction "safety zone." Delarosa fled, and during a chase attempted to discard a loaded firearm. The officers recovered the firearm and arrested Delarosa.
A jury convicted him of two felonies, being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)) and being a prohibited person in possession of ammunition (§ 30305, subd. (a)). The jury found Delarosa had the firearm and ammunition for the benefit of a criminal street gang, and the trial court enhanced each felony sentence (§ 186.22, subd. (b)(1)(A)), although it stayed the sentence and the enhancement for the ammunition charge under section 654. Overall, the court imposed a state prison sentence of four years four months.
Unlabeled statutory citations refer to the Penal Code.
This appeal concerns the propriety of the two gang enhancements. Delarosa argues there was insufficient evidence to support the jury finding he had the gun and ammunition for the benefit of a gang and with the purpose of promoting criminal conduct by gang members. He also argues the trial court erroneously allowed the prosecution's gang expert to testify as to ultimate issues. We affirm.
I
FACTUAL BACKGROUND
A. The Prosecution Evidence
1. Officer Soria's testimony about the stop, chase, and arrest
On July 24, 2015, around 11:00 a.m., Police Officers Soria and Espinoza were patrolling on 11th Street in Riverside, when they saw Delarosa riding his bicycle on the sidewalk near his house. Officer Soria knew Delarosa from prior interactions and knew he was a member of the East Side Riva gang. Officer Soria said they stopped him for riding on the sidewalk and intended to detain him, talk to him, and search him.
Officer Espinosa made first contact after they indicated they wanted Delarosa to stop. As Officer Soria came up on them, he heard Delarosa say something like, "I gotta go," and saw him drop his bicycle and flee on foot. The officers gave chase. When Delarosa climbed over a fence, Officer Soria continued on foot, and Officer Espinosa went back to get the police car.
Eventually, Officer Soria caught up to Delarosa when he stopped behind a vacant house. Soria said it looked like Delarosa tried to scale the fence, but couldn't. Delarosa had his back to Soria, and the officer ordered Delarosa to get on the ground. Soria said he saw Delarosa pull something from his pocket and throw it away. The officer drew his firearm, and Delarosa turned and walked toward him. When Soria determined Delarosa was not armed, he holstered his gun and took Delarosa to the ground using his hands. Delarosa did not put up a fight. Soria said he did not hear Delarosa call out "East Side Rivas" or "ESR," or call any gang members for help. Nor did he hear Delarosa call out "one time," or "5-0," common gang slang terms for "police."
After Delarosa had been placed under arrest and secured, Soria found a semiautomatic handgun located to the right of where Delarosa had been standing. Soria checked the gun, found it had a firing pin, removed the magazine, and saw it held seven .38-caliber bullets. Soria said he could not tell whether the gun had recently been fired, but it did not have a round in the chamber.
2. Testimony about Delarosa's past gang affiliation
Officer Kwan was assigned to the Riverside County Regional Gang Task Force and knew Delarosa from personal contact in the field. It was part of his job to contact gang members in known gang neighborhoods, document their names, dates of birth, addresses, dates of contact, and whether they had been seen with other known gang members. Kwan said he had personally documented Delarosa as a gang member in the past. Before testifying, he reviewed four field identification cards in which he personally identified Delarosa as a gang member, all dated between September 2013 and June 2014.
Officer Kwan said he had previously contacted Delarosa in Lincoln Park, a known gathering place for the East Side Riva gang. The City of Riverside had obtained a gang injunction against East Side Riva, creating a "safety zone" around the Lincoln Park neighborhood. The injunction requires gang members to refrain from certain activities within the area. East Side Riva members may not associate with other members or carry graffiti tools or two-way radios, and they must abide by a curfew inside the safety zone. Every gang member is supposed to be served with the terms of the injunction.
Delarosa lives in a house inside the injunction's safety zone. As a result, he does not violate the injunction simply by being present, but the injunction does subject him to being stopped and questioned. Delarosa is a documented member of the East Side Riva gang. Officer Kwan said he personally served Delarosa with the gang injunction in January 2014. Kwan said he once contacted Delarosa in Lincoln Park when he was with another known gang member. Kwan said Delarosa never had a weapon on the occasions when the officer stopped him.
Detective Miera was assigned to the gang unit of the Riverside Police Department. He said he had come into contact with Delarosa in July 2012. Acting on a warrant, Miera searched Delarosa's home and found items related to the East Side Riva gang in Delarosa's room. He said he found items containing Delarosa's moniker (Chunks), the moniker of other known gang members, and graffiti related to East Side Riva. The police did not find weapons or drugs in the search.
3. Officer Putnam's expert gang testimony
Detective Putnam testified as a gang expert. He was assigned to the Riverside Police Department Gang Intelligence Unit and familiar with the East Side Riva gang from his work there. He said he had investigated about 100 cases involving East Side Riva members.
Putnam knew the gang's history and territory. He described it as a predominately Hispanic gang. He said its turf lies in the area bordered by the 91 freeway on the west, Chicago Avenue on the east, Iris Street on the south, and 3rd Street on the north. According to Putnam, Delarosa was in East Side Riva territory when the police saw and apprehended him on July 24, 2015.
Putnam also described the gang's rivalry with 1200 Blocc Crips gang, whose members claim the same territory. According to Putnam, there is an ongoing war between the gangs and shootings are frequent. He said the East Side Riva gang benefits from its members carrying firearms because guns can be shared, which is important, considering "their current conflict with the 1200 Blocc Crips." He said the gang also benefits from its members being armed because it makes rival gang members less likely to engage in violence against them.
Putnam testified the East Side Riva's primary activities are weapons possession, vandalism, violent assaults, and manufacturing and selling drugs. He said he based his opinion on the reports he had reviewed and his experience with the criminal cases of other members. Over a 14-month period, he had found seven incidents of East Side Riva gang members possessing firearms.
He also described the role of graffiti in advancing the gang's causes. He said the presence of graffiti demonstrates to residents a gang is active and instills fear in them. If the people are afraid, they don't report crimes or come forward as witnesses. He explained the graffiti publicizes the gang by including the gang's symbols and the names of its smaller cliques. He said "ESR" is a common sign or symbol of the gang.
Putnam explained East Side Riva has close to 500 members. A clique is a subset of members of the larger gang who come from a particular geographical area. He said one such clique identifies as "14th Street." He used a photograph of East Side Riva graffiti to explain. The graffiti included the ESR abbreviation for East Side Riva, and also included "14" and "ST" to indicate the 14th Street clique. "That would indicate that members that are tagging the Fourteenth Street are geographically either originated from that geographical area or they're still in that area." Another exhibit showed East Side Riva graffiti with "XIV" written next to "ST." The same graffiti included what Putnam identified as a roll call of active members. The roll call included the name "Chunks," which he testified was Delarosa's moniker based on documentation he had reviewed in preparing his report.
Based on all of this evidence, Putnam opined Delarosa was an active member of the 14th Street clique of the East Side Riva gang. The most significant fact was the appearance of his gang moniker in the graffiti roll call. "It's basically an advertisement for their members. And if you're a member, you can be on the advertisement. If you're not a member, then you can't."
Putnam also opined the offenses Delarosa committed on July 24, 2015 were "in association with and benefited the criminal street gang East Side Riva." In forming his opinion he considered his prior conviction and prison sentence for possession of ammunition by a prohibited person in August 2014, which the parties stipulated had occurred. Putnam also said he had reviewed a report saying Delarosa had been the victim of a gang-related shooting inside the injunction safety zone.
B. The Defense Evidence
Delarosa testified on his own behalf. He said he has lived at the same address in Riverside, near where he was arrested, for as long as he could remember. At the time, he lived there with his mother, father, and eight siblings. He said the graffiti and other items the officers had found in his room did not belong to him. He admitted he knew and hung out with members of East Side Riva.
Delarosa admitted he pled guilty to being in possession of a loaded firearm in 2014, but said he was carrying the gun in self-defense. He said he was afraid of being shot again and did not know who had shot him.
He said on a typical day he stayed within the injunction safety zone because that's where he lived. He said at the time of his arrest he had the gun to protect himself and it had nothing to do with a gang. He said he ran from the police because he did not want to get arrested and go to jail.
C. The Verdict and Sentencing
The Riverside County Office of the District Attorney filed an information charging Delarosa with one felony count of being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 1), possessing ammunition despite being prohibited from doing so (§ 30305, subd. (a); count 2), and misdemeanor resisting a law enforcement officer (§ 148, subd. (a); count 3). The People alleged Delarosa committed counts 1 and 2 for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1)(A).)
The People also alleged Delarosa had suffered one prison prior (§ 667.5, subd. (b)), which he admitted.
A jury convicted Delarosa on all three counts and found true the gang enhancements. The trial court sentenced him to the low term of 16 months for count 1, plus the low term of two consecutive years for the gang enhancement. On count 2, the trial court imposed the midterm of two years, plus the midterm of three consecutive years for the gang finding, but stayed the sentence and the enhancement under section 654. The court also imposed 365 days in county jail for count 3 to run consecutively and be served at any penal institution, and imposed a one-year consecutive enhancement for the prison prior. Delarosa's total term was five years four months.
Delarosa filed a timely notice of appeal.
II
DISCUSSION
A. Substantial Evidence Supported the Gang Enhancements
Delarosa argues the jury's true finding that he carried the firearm and ammunition for the benefit of the gang is not supported by substantial evidence.
In the face of Delarosa's challenge, we must determine whether, viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found Delarosa possessed the firearm and ammunition for the benefit of the East Side Riva gang. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Marshall (1997) 15 Cal.4th 1, 34.) In our review, we recognize the trier of fact is entitled to draw reasonable inferences from the evidence and we presume the existence of facts a trier could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.) We will reverse only if it appears "upon no hypothesis whatever is there sufficient substantial evidence to support" the jury's true finding. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
An offender's sentence must be enhanced if they committed the felony "for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) The enhancement has two elements. The prosecution must prove (i) the offender committed the crime for the benefit of, at the direction of, or in association with a criminal street gang and (ii) the offender had the specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Albillar (2010) 51 Cal.4th 47, 64-65, 67-68.) To survive review, substantial evidence must support each element. (Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103, fn. 5.) Evidence of intent may be proven by circumstantial evidence. (People v. Smith (2005) 37 Cal.4th 733, 741 [intent "may in many cases be inferred from the defendant's acts and the circumstances of the crime"].)
Here, the trial evidence presented the jury with two explanations for why Delarosa was carrying a gun. Delarosa testified he carried a loaded firearm for his own protection. He explained he had been the victim of a shooting in the recent past, did not know who had shot him, and wanted to be prepared to defend himself if accosted again. The People put on evidence Delarosa was an active member of the East Side Riva gang, and the gang was involved in an ongoing conflict with a rival gang that frequently involved the members exchanging gunfire. The People asked the jury to infer Delarosa was carrying a loaded firearm in case he and his cohorts were drawn into a conflict with that rival gang. Our review of the record convinces us the jury could reasonably have accepted the prosecution's version, so we must affirm the jury's finding.
Substantial evidence supported the People's theory Delarosa was armed to benefit the gang and had the specific intent of advancing other crimes by gang members. First, police officers testified Delarosa was an active member of the East Side Riva gang. Detective Miera said he found the gang's graffiti in a prior search of his room, as well as his moniker and the moniker of other gang members. Officer Kwan said he personally contacted Delarosa in the Lincoln Park neighborhood in 2013 and 2014, once in the company of another documented member of the East Side Riva gang. Another time, Kwan saw Delarosa leaving the home of one known gang member in the company of a third known gang member. Local graffiti identified Delarosa as a gang member by including his moniker, Chunks.
Second, Putnam testified about the ongoing conflict between the East Side Riva and the 1200 Blocc Crips gangs. He said shootings between the two gangs had become relatively frequent. He explained that one member carrying a weapon "is a great benefit to [other members], especially with their current conflict with the 1200 Blocc Crips." According to Putnam, armed gang members help the gang participate in the conflict by sharing weapons and dissuade rival gangs from starting trouble.
Taken together, this evidence was sufficient to support the jury's inferences both that it benefited the East Side Rivas gang for Delarosa to be armed and that he had the specific intent of assisting gang members in the commission of a crime. It is noteworthy in this connection that Delarosa testified he armed himself for self-protection, a claim that is not in tension with the People's theory; he could have been armed to protect himself from members of the rival gang.
Finally, the jury's inference Delarosa had the specific intent to use the weapon in crimes committed by the gang finds further support in his own written statements on papers found in his room during a search. Detective Miera testified Delarosa had written, "But till that day, I'm gonna be bustin caps"—meaning shooting—because "I don't fight that well" and "So I got my license to kill." The jury reasonably could have concluded Delarosa armed himself to engage in gun violence as part of his gang responsibilities.
Delarosa relies on People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon) and In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.), but they do not support a different result. In Ramon, police stopped Ramon and a codefendant driving in a vehicle that had been reported stolen. (Ramon, at p. 847.) The officer found an unregistered handgun under Ramon's seat. (Ibid.) A jury later found Ramon guilty of receiving a stolen vehicle, being a felon in possession of a firearm, being a gang member in possession of a loaded firearm, and carrying a loaded firearm of which he was not a registered owner, and found he committed the first, second, and fourth offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). (Ramon, at p. 846.) The prosecution rested the defendant's gang enhancement entirely on the testimony of its gang expert, who in turn concluded Ramon had acted to benefit the gang and with the specific intent to promote crimes of the gang based entirely on two facts—that Ramon and his codefendant were gang members and they were stopped in gang territory. (Id. at p. 849.) The evidence here was not so thin. Unlike in Ramon, the jury heard evidence Delarosa's gang was involved in an ongoing dispute with a rival gang, that the dispute often erupted into gunfire, and saw Delarosa's prior statements which suggested he armed himself due to gang disputes and that he had a "license to kill."
This case is also distinguishable from Frank S., where police stopped the minor defendant after a traffic violation, found him armed with a knife and in possession of methamphetamine. (Frank S., supra, 141 Cal.App.4th at p. 1195.) The minor told the officer he carried the weapon to protect himself from a gang. (Ibid.) The prosecution put on a gang expert who testified the minor was an active member of a criminal street gang and had the knife for the benefit of the gang, and the trial court found true a section 186.22, subdivision (b)(1) enhancement. (Frank S., at pp. 1195-1196.) The Court of Appeal reversed because "unlike in other cases, the prosecution presented no evidence other than the expert's opinion regarding gangs in general and the expert's improper opinion on the ultimate issue . . . The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense." (Id. at p. 1199.) The prosecution's evidence was much stronger in this case. To begin, the evidence of Delarosa's gang membership is compelling. The prosecution also put on evidence the offense occurred in gang territory and presented testimony that explained precisely why Delarosa might have expected to use his gun in a gang-related offense, namely to extend East Side Riva's conflict with the 1200 Blocc Crips.
This case is more like People v. Ferraez (2003) 112 Cal.App.4th 925. In Ferraez, the appellate court upheld a gang enhancement where the expert testimony found support in the defendant's testimony that he was an active member of a gang and had sought permission from a friendly gang to sell drugs in their territory. The appellate court concluded that evidence coupled with the expert testimony was sufficient to uphold the jury's inference the defendant had acted with the intent of promoting the gang. (Id. at p. 931.) Here, Detective Putnam's conclusions found support in the testimony of other law enforcement officers (and exhibits presented through their testimony) that Delarosa was an active gang member and his gang was involved in an active dispute with a rival gang, as well as Delarosa's own prior written statements he armed himself because he was not good at fistic encounters. We conclude that evidence coupled with Detective Putnam's expert testimony was sufficient to warrant the jury's conclusion.
B. Admitting Expert Opinion on Ultimate Issues Was Harmless
Delarosa argues the trial court committed prejudicial error by allowing Detective Putnam, speaking as a gang expert, to testify as to ultimate issues reserved to the jury. Specifically, he complains Putnam testified improperly that in his expert opinion Delarosa (i) was a member of the East Side Riva gang and (ii) carried his weapon and ammunition for the benefit of or at the direction of the gang. He points out Putnam was not responding to a hypothetical question when he stated his conclusions. Delarosa says admitting the testimony violated his right to a fair trial under the Sixth and Fourteenth Amendments to the U.S. Constitution.
The opinion testimony Delarosa challenges came in two blocks. First, the prosecution asked Detective Putman his opinion about Delarosa's gang membership:
Q: [W]hat was your opinion regarding the defendant's level of participation within East Side Riva?The prosecutor then asked Putnam and he testified about what specific evidence led him to reach his conclusion.
A: My opinion . . . is that he was actively participating in criminal conduct with other members of East Side Riva and that he was a member of East Side Riva while he was doing that.
Second, the prosecution asked Putnam his opinion whether Delarosa had armed himself for the benefit of or at the direction of the East Side Riva gang. Putnam started by answering questions about how gangs operate, why members must perform tasks for gangs, and how members' activities benefit gangs in general. Putnam mentioned as important factors that Delarosa was armed in gang territory, East Side Riva needing armed members in its ongoing dispute with a rival gang, and being armed as a known gang member instills fear in community members. The prosecutor then asked:
Q: Now, having considered all those factors and reviewed this case, did you reach an opinion as to whether or not this particular offense . . . was committed to benefit or at the direction of a criminal street gang?
A: I did.
Q: And what is that opinion, sir?
A: It's my opinion that this crime was in association with and benefited the criminal street gang East Side Riva.
The prosecutor quite obviously did not put these questions in the form of hypotheticals. The prosecutor did not recount facts supported by the evidence in the case, ask Putnam to assume those facts were true, and then ask him what his opinion would be under those circumstances. Instead, the prosecutor simply asked the expert whether he thought defendant was a gang member and whether he thought Delarosa was armed for the benefit of his gang. Delarosa's attorney objected to the prosecution's first such question on the basis it was an improper hypothetical, but the trial court overruled the objection, saying the question was not a hypothetical at all, and let Putnam answer. Delarosa's counsel did not object to the second question.
"'California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Id., subd. (a).) The subject matter of the culture and habits of criminal street gangs . . . meets this criterion.'" (People v. Vang (2011) 52 Cal.4th 1038, 1044.)
Trial courts may permit a gang expert to respond to detailed hypothetical questions closely tracking the facts of the case and testify whether the offense was gang-related. (People v. Vang, supra, 52 Cal.4th at p. 1045.) Such questions "must be rooted in facts shown by the evidence." (Ibid.; see also People v. Garcia (2007) 153 Cal.App.4th 1499, 1505, 1513-1514 [prosecutor properly stated hypothetical facts before asking expert, "'[D]o you have an opinion as to whether this particular offense was committed for the benefit of, or in association with the criminal street gang?'"].)
"Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.) Nevertheless, a "witness may not express an opinion on a defendant's guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] 'Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.'" (People v. Vang, supra, 52 Cal.4th at p. 1048.)
The errors Delarosa complains about go to the jury's finding he was armed for the benefit of his gang. Gang membership is not itself an element of the gang enhancement, however it does tend to support finding a defendant acted for the benefit of and with the purpose of advancing the crimes of his gang. (People v. Roberts (2017) 13 Cal.App.5th 565, 572.) Delarosa contends the prosecutor failed to follow the established practice of asking Putnam hypotheticals rooted in the evidence, but instead asked him for his conclusions about Delarosa directly. We review a trial court's ruling on the admissibility of evidence for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.) We will not disturb the ruling "unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
The People do not attempt to defend the decision to permit the testimony on the merits. Instead, they point out we may reverse the trial court's decision to permit such evidence only if the error was prejudicial. (People v. Watson (1956) 46 Cal.2d 818, 835-836.) Thus, though we agree with Delarosa the trial court erred, the appeal turns on whether it is reasonably probable the jury would have come to a result more favorable to Delarosa absent the error. (Ibid.)
We conclude a more favorable result is not reasonably probable. The evidence Delarosa was an active member of the gang was overwhelming, and Putnam recounted that evidence as the basis for his opinion. Putnam said he based his opinion on (i) Delarosa's documented contacts with other known East Side Riva members, (ii) East Side Riva graffiti Detective Miera found in Delarosa's room, (iii) the presence of Delarosa's moniker on public East Side Riva graffiti, and (iv) Officer Kwan's testimony he personally served Delarosa with the gang injunction limiting East Side Riva members' activities. These were the factual predicates that served the basis for Detective Putnam's conclusion Delarosa was an active gang member. The same evidence, which came in through the testimony of police officers who had personal interactions with Delarosa, warrant the jury's conclusion he was a gang member.
The evidence Delarosa was a gang member supplies support for the jury's further conclusion he acted to benefit East Side Riva. The jury also heard evidence Delarosa was in the gang's territory when found armed. Detective Putman testified about the ongoing conflict between East Side Riva and a rival gang and explained why, in that context, having armed members was so important and how it benefited Delarosa's gang. All of this evidence, taken together, provides very strong support for the jury's conclusion the gang enhancement applied, notwithstanding the fact the trial court allowed Putnam to invade the province of the jury by saying he would reach that conclusion. The evidence supporting the jury's finding is simply too strong to conclude the case would have come out differently had Putnam not taken that step in his testimony.
Moreover, the trial court instructed the jury it was their duty to determine whether the prosecution had carried its burden and they must independently evaluate the testimony of experts, including by considering the reasons the expert gave for an opinion, and the facts or information on which the expert relied in reaching that opinion. We presume the jury followed these directions. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41.) --------
III
DISPOSITION
We affirm the judgment and the sentence.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. MILLER
J.