Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC596372
Mihara, Acting P.J.
Defendants Christian Antonio Garcia and Sergio Omardiaz Alonso appeal from a judgment of conviction entered after a jury found them guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The jury also found that each defendant personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1203, subd. (e)(3)) and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C).) In a bifurcated proceeding, Alonso admitted the allegation that he had previously been convicted of a felony for which he had served a prison term (§ 667.5, subd. (b)). The trial court sentenced defendants to 16 years in prison.
All further statutory references are to the Penal Code unless stated otherwise.
On appeal, defendants contend: (1) the trial court erred in instructing the jury pursuant to CALCRIM No. 375; (2) there was insufficient evidence to support the gang enhancement finding; (3) the trial court abused its discretion in allowing the expert witness to state his opinion that defendants committed the assault with the specific intent to assist in criminal conduct by gang members; (4) the trial court abused its discretion by admitting photographs of gang symbols and signs; and (5) the abstract of judgment should be amended. We find no error requiring reversal and affirm the judgment.
I. Statement of Facts
A. Prosecution Case
1. Evidence of Assault
On June 26, 2005, Cornelio Cordozo, his girlfriend Cecilia Cendejas, and defendants went to the flea market in San Jose. After Cordozo bought a blanket and some slippers, he asked defendants to take them to his car. At trial, Cordozo testified that Cendejas went with defendants. However, he was impeached with a pretrial statement that he made to Detective Eric Grimes in which he stated that defendants went to the car by themselves. Cordozo testified similarly at the preliminary hearing. At trial, Cordozo explained the inconsistent statements by asserting that Cendejas did not want to become involved in the incident and thus he wanted to protect her.
At about 5:20 p.m. on the same day, Hector Rosales was closing his lunch truck that was parked outside the flea market parking lot. Defendants walked toward Rosales, and said, “‘What’s up?’” They did not say it in a friendly way. Though they spoke loudly, they did not yell. Based on their tone of voice, Rosales thought they were looking for a fight. If Rosales had answered, “‘What’s up,’” there would have been a fight. Rosales responded, “Nothing was up,” and watched defendants as they continued walking down the street. Rosales thought they might be in a gang, because they wore blue belts.
According to Rosales, Carlos Perez then walked across the street in front of Rosales’s truck. When Perez met appellants, a fight began. Rosales did not hear either Perez or defendants say anything to each other. He also did not see any gang gestures. According to Rosales, one of the defendants initiated the fight, and Perez fought with him first. As Perez ran to the other side of the street, he fell down. Defendants then hit Perez’s head and stomach with rocks while he was lying on the ground. Defendants also hit and kicked Perez, who was unable to get up. Defendants eventually went to their car. One of them returned with an iron pipe and was about to hit Perez with it when Rosales and other bystanders shouted at him to leave Perez alone. The other defendant arrived in the car, and both defendants left. Rosales wrote down the license plate number of the car.
After defendants left, Rosales approached Perez, who had trouble standing. When Rosales asked him if he was okay, Perez did not respond. Perez did not know his name or his assailants. He asked Rosales to help him find his car, but he did not know what color it was. When Perez tried to leave, Rosales told him to wait for medical help.
Maria Huerta and her husband Ignacio also observed the fight. They were sitting in their vehicle, which was across the street from the lunch truck. Maria saw Perez and appellants. However, she did not hear anyone say anything, and did not see who initiated the fight. According to Maria, defendants hit Perez with rocks after he was on the ground. They also kicked and beat Perez. While Alonso was fighting with Perez, Garcia left and went to his car. Alonso then went to the car, obtained “a pipe or something,” and returned to the scene of the fight. After Maria told Alonso to leave, he entered the car that was driven by Garcia, and defendants left.
Meanwhile, Cordozo was walking around the flea market when Cendejas called him on her cell phone. She sounded nervous, but he did not know what the trouble was. Cordozo then received a call from Garcia, who told him where defendants would pick him up. Defendants picked up Cordozo and Cendejas on the opposite side of the flea market from where the car had been parked. Garcia had a bloody lip, and Alonso had no injuries. Cordozo asked Garcia what happened. Defendants told him that “they had a problem with this guy was shouting things to them.” When asked whether he “shout[ed] something that was gang-related,” Cordozo testified, “I think he did shout out something similar to that.” Garcia also said that this person started hitting him. Garcia told Cordozo that Alonso tried to help, that he (Garcia) was on the ground, and that this person was punching or beating him.
Cordozo’s testimony was impeached by his prior statements to Grimes. Grimes testified that Cordozo told him that defendants said that “they had been in a fight and beat a Norteno who called them scraps.” Cordozo denied that he had made this statement to Grimes.
Officer Joshua Erbes arrived at the scene at about 5:23 p.m. Perez was bleeding from several wounds on his face and head. Erbes interviewed Perez, who was disoriented and did not remember how the attack began, if the attacker said anything to him, or if he had done anything to provoke the attack. Perez stated that he had been walking across the street on his lunch break when he was attacked. Erbes collected rocks from the scene, and DNA analysis of two rocks revealed that Perez was the source of blood on both.
Perez was transported to a hospital for treatment. His injuries were “consistent with being hit by a rock.” These injuries were: a laceration that went through his cheek into his mouth; a five-centimeter scrape above the right ear; a laceration to his ear; a contusion over his right eyebrow; and a minimal fracture to his nose. As a result of the attack, Perez did not work for two weeks.
Officer Daniel Carley did a background check on the license plate number that was provided by Rosales. Carley eventually located the vehicle at about 7:50 p.m. He stopped the vehicle about five to 10 miles from the crime scene. Cordozo was driving, and Cendejas and defendants were passengers. Carley collected defendants’ clothing. Garcia was wearing blue jeans, a blue belt, a hat, a white tank top, a blue shirt, and blue and white sneakers with blue laces. He had no injuries. Alonso was wearing a blue belt and a blue and white shirt. DNA analysis revealed that Perez’s blood was on both of Garcia’s sneakers and on Alonso’s shoe.
Grimes interviewed Perez two days after the incident. Perez told him that he had left work at Pak ’n Save and was driving home when two men ran up to his car, yelled, “‘Sur Trece,’” and hit him with a rock. Perez got out of his car and tried to chase the men. He did not remember anything else. Grimes asked Perez why he thought that they had attacked him. Perez responded that it was probably because of his tattoos. However, the tattoos would not have been visible to anyone outside the car if Perez was driving. Perez never admitted that he had yelled out a gang challenge.
Perez was unavailable at trial, and his testimony at the preliminary hearing was presented to the jury. Perez, who was then 22 years old, testified that he was affiliated with the Nortenos when he was between the ages of 12 and 18. He had four dots on his fingers, but did not know what they signified. On the day of the assault, Perez was driving a black Acura. He was the victim of an attack, but did not remember what happened. He did not know whether he provoked the attack or how many attackers there were. “As far as [he] kn[e]w,” Perez was telling the truth when he told Grimes that two men ran up just before the attack and yelled, “‘Sur Trece.’” However, he did not remember them doing it. Perez denied recognizing his attackers in court.
2. Gang Evidence
Grimes testified as an expert in criminal street gangs. He testified that Nortenos are a Hispanic gang that originated in northern California. All Nortenos align themselves with the Nuestra Familia gang, which began in the prison system. Nortenos associate with the color red, and wear red hats, shirts, and shoes. They also have tattoos that consist of four dots or the numbers “1” and “4,” for the 14th letter of the alphabet, “N.” Surenos, who are their rivals, are from Mexico or southern California. They align themselves with the “‘La Eme’” prison gang, which is the Mexican Mafia. Surenos associate with the color blue, and wear blue hats, bandanas, belts, and shoe laces. They also associate with the number 13, for the 13th letter of the alphabet, “M.” Nortenos and Surenos are umbrella organizations for many individual street gangs.
Both Nortenos and Surenos use gang slogans to show their allegiance to the gang. Nortenos will shout “Norte Vida,” or “Puro Norte,” while Surenos will shout “Sur,” or “Pur Sur.” Nortenos will also use the term “scrapa,” to refer to Surenos as “a scrap,” “a piece of garbage,” or “dirt.”
According to Grimes, an individual commits crimes in order to become a gang member. Once he is a gang member, if someone disrespects him, he must retaliate immediately. He must also assist a fellow gang member during an altercation. When an assault is in progress, gang members will also shout gang slogans so that others will be aware of their strength in a given neighborhood. If others are not around to hear the slogan, it becomes “a message to the victim” about “who beat them up.”
In order for a gang to remain strong and powerful, members must take care of their neighborhood or go into their rivals’ neighborhood and “beat them up, stab them, shoot them, whatever needs to be done.” Thus, they control a neighborhood by instilling fear in its residents. A gang member enhances his reputation within his gang “by doing things for the gang, whether it’s selling guns, selling drugs, making money, or committing assaults or committing any types of crimes in the name of the gang.” Gang members will not cooperate with law enforcement, because they do not want to be labeled a “rat.” If a gang member is labeled a rat, other gang members will beat him up and kick him out of the gang.
In the early 1990’s, Varrio Peligrosos Locos (VPL) became a gang. This criminal street gang has approximately 144 members, whose primary activities include robbery, assaults with deadly weapons, shootings into dwellings, vandalism, stealing vehicles, selling narcotics, and witness intimidation. VPL associates with the number 13, “M,” the 13th letter of the alphabet, and the color blue. It uses these symbols in its tattoos, drawings, writings, and hand signs.
The prosecution also introduced evidence of defendants’ affiliation with VPL. In May 1998, Officer Oscar Ramirez contacted Alonso in VPL territory. Alonso told him that he “hangs out with” VPL and had done so for three years. In June 2003, Officer Anthony Vizzusi contacted Alonso during a vehicle stop. There were VPL members in the car with Alonso. Alonso told Ramirez that he had been associating with VPL for eight years. He stated that he “hangs out with” VPL in VPL territory. Alonso also had a tattoo of three dots on his hand.
On January 15, 2006, Officer Arturo Palacios contacted Garcia. Garcia was with a member of VPL. Garcia was wearing blue and stated that he “kick[ed] it with” VPL, but was not yet jumped in. According to Garcia, he was “down with Sur,” and was a “wannabe.”
According to Grimes, defendants were “current and validated members” of VPL based on their own admissions, police reports, field interview cards, and their tattoos and clothing. Grimes also testified that the assault benefited the gang, because it upheld its reputation and demonstrated that defendants would not be intimidated by a rival gang member.
The prosecution introduced evidence of crimes committed by VPL members. On March 9, 1998, Nortenos were throwing rocks at Surenos, including defendants. Surenos left and returned with reinforcements, including defendants, chased these Nortenos, and threw rocks at them.
In September 2001, VPL members, including defendants, threw bottles and Molotov cocktails at a house occupied by Nortenos. The incident led to convictions for assault with force likely to cause great bodily injury. Alonso was one of the defendants who was convicted. Garcia’s case was a juvenile adjudication.
On November 4, 2002, the police stopped a vehicle in which a VPL member was found in possession of a handgun and heroin that was packaged for sale. The incident led to a conviction for gun and drug possession. Neither defendant was involved in this offense.
On April 24, 2003, a Sureno was driving when Nortenos “mad-dogg[ed]” him, threw a rock at his car, and flashed gang signs at him. He drove away and returned with his Sureno friends, who assaulted Nortenos and stabbed three of them. Two of the Surenos were related to Valley Palms Surenos and one was a member of VPL. All were sentenced to prison for assault with a deadly weapon and accompanying gang enhancements. Defendants were not involved.
B. Defense Case
Cendejas was the sole witness for the defense. She testified that Cordozo was her boyfriend, and Alonso was her sister’s boyfriend. Cendejas saw Garcia more frequently than she saw Alonso. Cendejas denied any familiarity with VPL or knowing anyone in it. According to Cendejas, Cordozo’s older brother Sergio was not a VPL member.
On the day of the incident, Cendejas, Cordozo, and defendants went to the flea market. After Cordozo bought a blanket and slippers, he asked defendants to take them to the car. Cendejas went with defendants. Since she was using her cell phone, she fell behind them. As defendants were almost across the street outside the flea market, a guy ran toward Garcia and hit him, knocking him down. The assailant then started hitting and swinging at Garcia. Cendejas did not hear either defendants or the assailant say anything. As Alonso was about to “stop it or something,” Cendejas left. She did not want to get involved and she was scared. Cendejas returned to the flea market and called Cordozo. After she met Cordozo, she told him that defendants had gotten into a fight. Shortly thereafter, Garcia picked up Cendejas and Cordozo at the front gate of the flea market. Defendants told them that they had been in a fight. Defendants were “shaky” and Garcia had blood on his lip.
When Cendejas was questioned by the police, she said that she did not know what had happened. She lied and did not mention that she had seen the fight, because she was scared. Cendejas also testified regarding her interviews with Grimes. She did not want to speak with him, because she felt that he was against defendants. Since he told her that she could go to jail if she lied, Cendejas continued to tell the same story that she had initially told the police. She thought that she could be arrested for lying originally. After Cendejas spoke to a defense lawyer, she was not afraid to testify as she did at trial.
C. Rebuttal
Grimes testified that he interviewed Cendejas in August 2005 and in October 2005. In the first interview, Cendejas told him that she stayed with Cordozo when defendants returned to the car. Cendejas then called Garcia and they met outside the flea market. Cordozo asked them what happened, and defendants said they got into a fight.
The second interview was recorded and transcribed. The recording and transcript were admitted into evidence. During that interview, Cendejas told Grimes that defendants took the blanket and slippers to the car while she remained at the flea market with Cordozo. Since they were taking a long time, Cendejas called Garcia. Eventually, defendants picked them up. Cendejas knew something had happened, because defendants were “all shaken up.” Cordozo asked what happened, and appellants responded that they had gotten into a fight. They said they were walking across the street when a black car passed them, and a guy screamed out “Norte Vida.” After defendants crossed the street, the guy stopped his car, got out, and hit Garcia, who fell. Defendants did not say that they “hit them with anything.” She did not remember any injuries.
Grimes testified that Cendejas never told him that she witnessed the fight. Though Cendejas told him in her second interview that the assailant was driving a black car, he did not ask her how she knew the color of the car. He had written in his police report that Perez was driving a black car based on Perez’s statement. Police reports are routinely turned over to the defense.
Grimes testified that Cordozo’s brother, Sergio, was affiliated with VPL, and was dating Cendejas’s sister. Victor Torrez, Cordozo’s cousin and owner of the car that Cordozo drove to the flea market, was also a member of VPL.
II. Discussion
A. CALCRIM 375
Defendants contend that the trial court committed reversal error when it instructed the jury pursuant to CALCRIM 375. This instruction allowed the jury to consider evidence of uncharged offenses for the purpose of proving intent or motive, if it found that the prosecution had proved by a preponderance of the evidence that the defendants had committed them. The jury instruction on the gang enhancement allegation also referred to the uncharged offenses. Thus, defendants claim that CALCRIM 375 allowed the jury to find an element of the gang enhancement allegation, that is, that VPL had a pattern of criminal activity, by a preponderance of evidence rather than beyond a reasonable doubt.
Since defendants were charged with committing the assault for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), the trial court instructed the jury pursuant to CALCRIM 1401. This instruction defined a criminal street gang, in relevant part, as an organization “whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity.” The jury was instructed that one of the elements of a pattern of criminal activity was the “commission of, or attempted commission of, a conspiracy to commit or solicitation to commit, or conviction of, or any combination of two or more of following crimes: 1, assault with a deadly weapon; 2, assault with force likely to produce great bodily injury; 3, sales, transportation or distribution of controlled substances.” The trial court also instructed the jury: “You may not find that there was a pattern of criminal gang activity unless all of you agree that two or more crimes that satisfies the requirement, were committed, but do not have to all agree on which crimes were committed. [¶] To decide whether a member of the gang or the defendant committed, 1, assault with a deadly weapon; 2, assault with force likely to produce great bodily injury; 3, sales, transportation or distribution of controlled substances, please refer to the separate instructions I have given you on this case. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. [¶] If the People have not met this burden, . . . you must find that the allegation has not been proved.” (Italics added.)
The trial court also instructed the jury pursuant to CALCRIM 375 as follows: “The People presented evidence that the defendant committed other offenses that were not charged in this case. You may consider this evidence only if the People have proved, by preponderance of the evidence, that the defendant, in fact, committed the uncharged offenses. [¶] Proof by preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. [¶] A fact is proven by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. ¶ If you decide that the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant acted with the intent to commit the crime for the benefit of, at the direction of, or in association with a criminal street gang; and the defendant intended to assist, further, or promote criminal conduct by gang members in this case; or, the defendant had a motive to commit the gang allegation alleged in this case. [¶] Do not consider this evidence for any other purpose except for the limited purpose, which has been indicated. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider, along with all the other evidence. It is not sufficient by itself to prove the defendants guilty of the gang allegation. [¶] The People must still prove each element of the charge and allegation beyond a reasonable doubt.” (Italics added.)
“Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury.” (People v. Holt (1997) 15 Cal.4th 619, 677.) In considering the instructions as a whole, a reviewing court must determine whether there is a “‘reasonable likelihood’” that the jury understood the instructions in the manner proposed by the defendant. (Estelle v. McGuire (1991) 502 U.S. 62, 72.)
Defendants argue that CALCRIM 375 improperly “discussed prior uncharged predicate offenses that the jury reasonably could assume related to the ‘pattern of criminal activity’ element of the gang enhancement.” In our view, however, CALCRIM 375 distinguishes between the preliminary question of whether to consider evidence and the ultimate question of whether every element of the enhancement allegation had been proven beyond a reasonable doubt. Here, CALCRIM 375 instructed the jury to apply a preponderance of the evidence standard to the issue of whether to consider the evidence of the uncharged offenses. The instruction did not state that the jury could find any element of the gang enhancement allegation by a preponderance of the evidence. Instead, it specifically stated that the People must prove each element of the gang allegation beyond a reasonable doubt. The other instructions supported this conclusion. CALCRIM 1401 outlined the elements of the gang allegations and told the jury that the People were required to prove the gang allegation beyond a reasonable doubt. Thus, there was not a reasonable likelihood that the jury would have applied the incorrect standard.
Defendants’ reliance on Francis v. Franklin (1985) 471 U.S. 307 is misplaced. In Franklin, the defendant, who was an inmate, shot an individual while attempting to escape. (Id. at pp. 309-310.) The defense theory was that he fired the gun inadvertently, and thus did not intend to shoot the victim. (Id. at p. 311.) On appeal, he argued that the instructions regarding intent to kill lessened the prosecution’s burden of proof. (Id. at p. 313.) The challenged instructions were: “‘(1) [t]he acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted’ and (2) ‘[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.’” (Id. at p. 309.) The United States Supreme Court held that the instructions impermissibly shifted the burden of proof by directing “the jury to presume an essential element of the offense -- intent to kill -- upon proof of other elements of the offense -- the act of slaying another.” (Id. at p. 316.) In contrast to Franklin, here, as previously discussed, CALCRIM 375 did not conflict with the “burden of proof” instruction.
The case of Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812 (Gibson) is also inapposite. In Gibson, the Ninth Circuit reversed the defendant’s convictions after it determined that the jury instructions regarding prior sexual offenses permitted the jury to convict the defendant under the preponderance of the evidence standard. (Id. at pp. 822-823.) The challenged instructions were former CALJIC No. 2.50.01 (6th ed. 1996) and CALJIC No. 2.50.1. These instructions stated: “If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused. . . . [¶] Within the meaning of the preceding instructions, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed sexual offenses and/or domestic violence other than those for which he is on trial.” (Id. at pp. 821-822.) The court concluded that “the interplay of the two instructions allowed the jury to find that Gibson committed the uncharged sexual offenses by a preponderance of the evidence and thus to infer that he had committed the charged acts based upon facts found not beyond a reasonable doubt, but by a preponderance of the evidence.” (Id. at p. 822.)
We first note that CALJIC No. 2.50.01 has been modified to include the following paragraph: “However, if you find by a preponderance of the evidence that the defendant committed [a] prior sexual offense[s], that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged crime[s]. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.” (CALJIC No. 2.50.01 (7th ed. 1999).) This revised instruction has been found to comport with due process. (See People v. Falsetta (1999) 21 Cal.4th 903.) The present case, unlike Gibson, included instructions that were similar to the revised CALJIC No. 2.50.01. These instructions explained to the jury how to apply the preponderance of the evidence standard to the preliminary determination of whether defendants committed any uncharged offenses while also advising the jury that the prosecution was required to prove the elements of the gang enhancement beyond a reasonable doubt. Thus, Gibson is distinguishable from the present case.
B. Sufficiency of Evidence
Defendants next argue that the judgment must be reversed, because there was insufficient evidence that the crime was gang-related, that they harbored the requisite specific intent, and that VPL engaged in a pattern of criminal gang activity.
Generally, “[t]he proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) We also review “the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Griffin (2004) 33 Cal.4th 1015, 1028.) The substantial evidence standard applies to a claim that the evidence was insufficient to support a gang enhancement finding. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
“[A]ny person who is convicted of a felony 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished” by an additional term of ten years if the felony is a violent felony. (§ 186.22, subd. (b)(1).) “Based on section 186.22, a crime fails to be gang related unless [the defendant] committed it for the benefit of, at the direction of, or in association with a street gang. [Citation.].” (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 (Frank S.), internal quotation marks omitted.)
Defendants rely on the following evidence to support their claim that the underlying offense was not gang-related: (1) they went to the flea market for a legitimate purpose; (2) the crime was not “turf-related”; (3) Perez was not identifiable as a Norteno, because they did not see his tattoos and he was not wearing red clothing; and (4) bystanders did not hear gang slogans.
However, defendants have overlooked the evidence that does support the gang enhancement finding. Here, defendants, who were members or affiliates of VPL, were wearing blue clothing that displayed their status as Surenos. As they walked towards Rosales, they said, “‘What’s up?’” Their tone of voice indicated to Rosales that they were looking for a fight. Rosales knew that there would have been a fight if he had responded by saying, “‘What’s up?’” Thus, he avoided eye contact and said that nothing was up. Based on this evidence, the jury could reasonably conclude that defendants were looking for trouble as they left the flea market. At this point, though Rosales and other bystanders did not hear any gang slogans, Perez identified himself as a Norteno to defendants. Defendants told Cordozo that “they had a problem with this guy” who “[s]shout[ed] something that was gang-related.” Cordozo had also told Grimes that defendants told him that they “beat a Norteno who called them scraps.” Cendejas told Grimes that defendants told her that a guy in a black car passed them and yelled, “Norte Vida.” Based on this evidence, it was irrelevant that defendants were unable to view Perez’s tattoos and that Perez was not wearing red clothing. Though bystanders did not hear any gang slogans, the jury could have reasonably concluded that defendants knew that Perez was a Norteno, because he had challenged them as Surenos by shouting out a gang slogan. Thus, there was substantial evidence to support the finding that the assault was gang-related.
Though Grimes testified that he did not believe Cordozo’s statements that Perez yelled gang slogans and thus these statements did not affect his opinion as to how the attack began, the jury was not required to accept this portion of his testimony. (People v. Rush (1960) 180 Cal.App.2d 885, 886-887.)
Defendants also claim that there was insufficient evidence that they acted with the requisite specific intent.
The prosecution was required to prove that defendants had the “specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).) “[M]ere membership in a gang” is insufficient to prove the specific intent element of section 186.22. (People v. Gardeley (1996) 14 Cal.4th 605, 622-623 (Gardeley).) Here, however, the prosecution introduced additional evidence to prove the gang enhancement. Defendants were wearing blue, thus announcing their status as Surenos as they walked down the street. Perez then yelled, “Norte Vida,” and called them “scraps.” According to expert testimony, there was intense rivalry between Surenos and Nortenos, Nortenos will shout “Norte Vida” to show their allegiance to their gang, gang members were required to retaliate immediately if a rival gang member disrespected them, “scraps” was a derogatory term for Surenos, gang members were required to assist a fellow gang member during an altercation, and gang members who assisted each other in an assault were furthering the legacy of their gang. Thus, when Perez insulted defendants, and one of the defendants began fighting with Perez, the other defendant was required to and did assist him. After Perez fell, both defendants hit Perez’s head and stomach with rocks, thereby assisting each other in criminal conduct. Based on this record, there was substantial evidence that defendants were gang members and that each defendant had the specific intent to assist the other in assaulting a rival gang member. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)
The case of Frank S., supra, 141 Cal.App.4th 1192, upon which defendant relies, is factually distinguishable. In Frank S., a police officer detained a minor after he rode his bicycle through a red light. The minor, who had a knife and a bindle of methamphetamine and was wearing a red bandana, told the officer that he carried the knife for protection against Southerners, because they believed he supported Northern street gangs. An expert witness for the prosecution testified that the minor would use the knife to protect himself from rival gang members and to assault these individuals. (Id. at pp. 1195-1196.) The reviewing court held that there was insufficient evidence to support the specific intent element of the gang enhancement. (Id. at p. 1196.) Frank S. is factually distinguishable from the present case. In that case, the minor, who was alone, only possessed the knife and the drugs. Thus, the prosecution was required to prove that the minor intended to use the knife or drugs to assist another gang member in committing another crime, and this evidence did not exist. In contrast to Frank S., here, defendants intended to assist each other in assaulting a rival gang member.
Defendants next argue that there was insufficient evidence to establish that VPL engaged in a pattern of criminal activity. More specifically, they challenge the sufficiency of the evidence regarding the “primary activities” element of section 186.22.
Section 186.22 defines a “criminal street gang” as “a group of three or more persons” that has as “one of its primary activities the commission of one or more of the criminal acts enumerated” in the statute. (§ 186.22, subd. (f).) It must also have “a common name or common identifying sign or symbol” and its members must “engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).)
“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 group’s ‘chief’ or ‘principal’ occupations. [Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) Proof that a “group’s members consistently and repeatedly have committed criminal activity listed in the gang statute” is sufficient to establish the gang’s primary activity. (Id. at p. 324.) The occasional commission of crimes by the gang’s members, however, is insufficient. (Ibid.) The trier of fact may consider past offenses and the charged offenses in determining whether the primary activity element is satisfied. (Id. at pp. 320, 323.) Expert testimony also may be used to establish that one of the group’s primary activities is the commission of statutorily enumerated offenses. (Id. at p. 324; Gardeley, supra, 14 Cal.4th at pp. 617-620.)
Defendants argue that there was insufficient evidence that VPL’s primary activity was the commission of the statutorily enumerated offenses, because VPL committed only three crimes during a period of 16 years. The record does not support this argument.
Here, Grimes testified that VPL’s primary activities are “robbery, assault with a deadly weapon, shooting into inhabited or uninhabited dwelling[s], vandalism[,] which would include graffiti, stealing vehicles, selling narcotics, witness intimidation.” The majority of these crimes are statutorily enumerated offenses. (§ 186.22, subd. (e)(1) [assault with a deadly weapon or by means of force likely to produce great bodily injury], (2) [robbery], (4) [sale of narcotics], (5) [shooting at an inhabited dwelling], (8) [witness intimidation], (20) [felony vandalism]. Grimes also testified that VPL has “committed multiple offenses that are covered under 186[.]22 PC [,] which is the gang enhancement.” Grimes further testified that there was documentation that VPL committed “numerous other offenses” in addition to the three predicate offenses. Based on this expert witness testimony and the evidence of the predicate offenses, there was sufficient evidence that the primary activity of the VPL was the commission of the enumerated offenses in section 186.22. (Gardeley, supra, 14 Cal.4th at p. 620.)
On cross-examination, Grimes agreed that “there are a lot of other crimes that VPL committed in their life history that aren’t” listed in section 186.22. Grimes also could not specify how many of the crimes listed in section 186.22 were committed by VPL. However, an expert witness who testifies regarding a gang’s primary activities is not required to specify the number of such crimes that the gang has committed. (See Gardeley, supra, 14, Cal.4th at p. 620.)
The case of People v. Perez (2004) 118 Cal.App.4th 151, is inapposite. In Perez, the court held that “evidence of the retaliatory shootings of a few individuals over a period of less than a week, together with a beating six years earlier, was insufficient to establish” the primary activities element of section 186.22. (Id. at p. 160.) However, unlike in the present case, there was no expert witness testimony regarding the gang’s primary activities. (Ibid.)
Defendants’ reliance on People v. Duran (2002) 97 Cal.App.4th 1448, is similarly misplaced. In Duran, the defendants challenged the sufficiency of the evidence to support a gang enhancement finding on the ground that the expert witness testified that “the gang’s primary activity was ‘putting fear into the community,’” which was not one of the statutorily enumerated offenses. (Id. at p. 1464.) The reviewing court concluded otherwise, stating that the witness also referred to robbery, assault, and narcotics sales, and that the gang committed these offenses often enough to gain control of the narcotics trade in a particular neighborhood. (Id. at p. 1464.) Contrary to defendants’ claim, the Duran court did not hold that the primary activities element requires proof of the effect of these activities, such as provision of financial support, control of a neighborhood, or intimidation of the local community.
C. Admissibility of Gang Photographs
Defendants contend that the trial court abused its discretion in admitting evidence of four photographs. They argue that this evidence was inadmissible under Evidence Code section 352 and violated their federal constitutional rights to due process.
1. Background
The prosecutor sought to admit four photographs that depicted gang graffiti and a gang member throwing gang signs. People’s exhibit 32 showed a wall with the letters “VPL” and the words “Varrio Peligrosos Locos” in stylized blue script. People’s exhibit 33 showed writing on a cement wall underpass along train tracks behind Genie Avenue. The writing said “VPL” above the words “Peach Court Killa,” which was crossed out with a large “X.” “Peach Court” is a Norteno gang whose territory was less than a mile away. When VPL crossed out the rival gang’s name, VPL was issuing a challenge, that is, telling Peach Court that VPL did not want the other gang in its territory. People’s exhibit 34 showed “VPL” with “X3” next to it among various other Sureno gangs, thus showing solidarity with them. People’s exhibit 35 showed a person wearing a blue shirt and making a gang sign of the “P” and “L” of Peligrosos Locos. The person’s face was whited out. “VPL” was written on the walls behind him.
Defendants objected to the admission of these exhibits on the grounds of “relevance . . . Evidence Code 352.” Following the prosecutor’s relevancy argument, the trial court overruled defendants’ objections, and explained: “They are relevant to any gang-related case. One of the things that the officer, as an expert, has to prove is that as he discusses the gangs -- he will be discussing gangs, about the rivalry between Norteno and Surenos which the evidence shows is one of the issues in this particular case and having the exhibit that illustrates that is more helpful to the jury. Also having the exhibit with gang-related graffiti is part of the gang culture based on my own personal experience with gangs and, therefore, I find them both relevant and signs and symbols [such] as the throwing up the sign for this particular gang as long as the face has been whited out, I think this also simply is another exhibit to illustrate that, because without some sort of symbol illustrated, it -- it’s hard for a layperson to understand that kind of testimony that the officer’s going to be giving.” The trial court also stated: “I’ve done a 352 analysis of it. I think it’s more probative than prejudicial. I think it will be helpful for the jury. I don’t think it’s an undue consumption of time. I don’t think it will be confusing to them. I think it will be helpful to them.”
2. Analysis
Evidence Code section 350 bars evidence that is not relevant. “Relevant evidence” is defined as “evidence, . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code § 210.) A defendant who pleads not guilty puts in issue all elements of the charged offense. (People v. Balcom (1994) 7 Cal.4th 414, 422.) “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) This court reviews a trial court’s determination under Evidence Code section 352 under the abuse of discretion standard. (People v. Crittenden (1994) 9 Cal.4th 83, 133-134.)
Defendants argue that the photographs did not identify defendants by their gang monikers or show them with fellow gang members, were not found in their bedrooms, and did not connect them to the charged crime, and thus they were irrelevant. We disagree, because the photographs had some tendency to prove material issues in the case. The prosecution was required to prove that VPL had “a common name or common identifying sign or symbol,” which is one of the requirements for a criminal street gang finding. (§ 186.22, subd. (f).) Exhibits 32 and 35 supported Grimes’s testimony on this element. Also, at issue in the present case was why defendants might have committed such a vicious assault. Exhibit 33 was an illustration of the rivalry between VPL and the Nortenos. As Grimes explained, “By VPL crossing out the rival gang, it is a direct challenge to them saying we don’t want you in our neighborhood.” Exhibit 34 showed the letters “VPL” with the names of several other Sureno gangs. According to Grimes, this photograph illustrated “solidarity between the Sureno gangs. They all tend to get along together. Surenos as a whole will support one another when it comes to their rivals against the Norteno.” Exhibits 33 and 34 supported Grimes’s testimony regarding the rivalry between defendants’ gang and Nortenos, and provided a possible motive in the present case. Thus, the trial court did not abuse its discretion in concluding that the probative value of this evidence outweighed its prejudicial effect.
Defendants argue, however, that this evidence was unduly prejudicial, because it “highlighted the violent propensities of gangs.” We disagree. There is nothing violent about gang graffiti and throwing gang signs. Defendants also refer to Grimes’s testimony that “if [VPL members] have weapons, they will take pictures holding weapons.” However, none of the photographs include weapons.
To the extent that defendants are objecting to Grimes’s testimony, they have forfeited the issue on appeal because they did not object to it at trial. (Evid. Code, § 353; People v. Ghent (1987) 43 Cal.3d 739, 766.)
Defendants next claim that exhibit 33’s reference to “Peach Court Killa” (italics added) was extremely prejudicial due to its “negative connotations.” We find no merit to this claim, because the reference was to a Norteno gang, not defendants’ gang.
Defendants’ reliance on People v. Bojorquez (2002) 104 Cal.App.4th 335 (Bojorquez) is misplaced. In Bojorquez, the defendant was charged with robbery, false imprisonment, and gun enhancement allegations. (Id. at p. 337.) After the defendant testified that he no longer belonged to a gang (Id. at p. 340), the trial court admitted expert testimony regarding the defendant’s gang membership and an extensive description of the violent nature of the gang’s activities and beliefs. (Id. at p. 341.) The reviewing court held that some of the evidence was relevant to impeach the defendant’s credibility, and thus admissible, but the remaining evidence had little probative value. (Id. at p. 343.) In contrast to Bojorquez, here the prosecution was required to prove the elements of a gang enhancement.
Defendants argue that “[o]nce the inflammatory gang evidence was admitted, it was impossible for [them] to obtain a fair trial on the gang allegation because there was no connection between the crime and the gang photographs and because the prejudicial evidence undermined [their] claim that the assault was not gang-related -- the Achilles heel of the prosecution’s case.” We reject this argument for the same reasons that we have rejected defendants’ state law claim.
D. Admissibility of Expert Witness Testimony
Defendants argue that the trial court erred by permitting expert witness testimony as to whether they had the specific intent “to assist, further, or promote criminal gang conduct” when they committed the charged offense.
Defendants requested that Grimes not testify as to any ultimate issue in the case, that is, that he not be allowed to give his opinion about whether the crime was committed “at the direction of, for the benefit of or association with the criminal street gang and the specific intent to further promote, assist a particular criminal street gang.” They argued that “it doesn’t take an expert opinion to essentially act as a 13th juror to tell the juror how they should decide the case by saying this is what I believe the intent when the facts, as presented so far to the jurors about the nature of the rivalry is evident, and they don’t need any expert to come in and spell it out for them because it’s not a complicated case.” The trial court then ruled that Grimes could testify as “to the ultimate issue of whether or not it was at the benefit of, association of, or the direction of the criminal street gang.”
After Grimes was qualified as a gang expert, he testified that defendants were “current and validated members” of VPL. He also testified that a gang member must retaliate immediately if a rival gang disrespected them, and must assist a fellow gang member during an altercation. He further testified that the assault benefited the gang by upholding its reputation and demonstrating that defendants were Surenos, who would not be intimidated by a rival gang member. He then testified that when defendants assisted each other in the assault, they were both fulfilling a gang requirement and furthering their legacy as Surenos. When Grimes testified that defendants had the “specific intent to further or promote criminal gang activity” during their assault on Perez, defendants did not object.
Even assuming that the trial court erred by permitting expert witness testimony as to whether defendants committed the charged offense with the specific intent to promote, further, or assist in the criminal conduct by gang member, since this was an “ultimate factual issue for the jury to decide” (People v. Valdez (1997) 58 Cal.App.4th 494, 507), there was no prejudice. The defense theory was that Perez first attacked defendants, and they acted in self-defense. Once the jury rejected this theory and convicted defendants of the assaults, the jury was required to determine whether the gang enhancement allegation was true. Defendants do not challenge Grimes’s testimony relating to whether the charged offenses were committed for the benefit of a criminal street gang. Thus, there was admissible expert witness testimony as to the behavior of Sureno and Norteno gangs in general when they are disrespected by a rival gang. Since there was strong circumstantial evidence of defendants’ intent to assist criminal gang conduct, Grimes’s testimony as to their intent in committing the assault on Perez was cumulative. Under these circumstances, any error was harmless.
E. Abstract of Judgment
Defendants argue that the abstracts of judgment must be amended to reflect the limitations inherent in the section 186.32 gang registration requirement.
The trial court ordered defendants to “register pursuant to Penal Code section186.30 and 186.32.” The abstracts of judgment state: “Register PC 186.30.”
Section 186.30 provides, among other things, that anyone who is convicted of a gang-related enhancement must register with the chief of police or sheriff within a certain time upon release from custody or arrival in a given jurisdiction. Section 186.32 specifies the information that must be provided pursuant to section 186.30. Thus, an adult who is subject to the registration requirement must provide, among other things, “[a] written statement, signed by the adult, giving any information that may be required by the law enforcement agency . . . .” (§ 186.32, subd. (a)(2)(C).)
In People v. Bailey (2002) 101 Cal.App.4th 238, 245 (Bailey), this court held that section 186.32, subdivision (a)(2)(C) was not unconstitutionally vague when interpreted “to require descriptive or identifying information that aids law enforcement in monitoring the whereabouts of gang members.” In People v. Sanchez (2003) 105 Cal.App.4th 1240, 1244 (Sanchez), this court again considered the constitutionality of this statute, and held that it was not unconstitutionally vague if interpreted to require that “the registrant must provide information from which the law enforcement agency could locate him . . . includ[ing] the person’s full name, any aliases or gang monikers or change of name, the person’s date of birth, residence address, description and license plate number of any vehicle the person owns or drives, and information regarding the person’s employment or school.” Thus, the Sanchez court found that the trial court erred in ordering as a condition of probation pursuant to the registration requirement that the defendant provide the police with a list of the “areas he frequents,” and struck that provision from the trial court’s order. (Id. at pp. 1242-1243, 1244, 1246.) In neither Bailey nor in Sanchez did this court order the abstract of judgment to be amended to include its interpretation of section 186.32, subdivision (a)(2)(C). Since we cannot assume that law enforcement authorities will ignore this court’s interpretation of the statute, we will not order that the abstract of judgment be amended.
Defendants also argue that the abstract of judgment must be amended to reflect the trial court’s orders to “register pursuant to Penal Code section 186.30 and 186.32.” They argue that “‘[w]here the clerk’s and reporter’s transcripts conflict, the latter controls when, under the circumstances, it is the more reliable.’ (People v. Harrison (2005) 35 Cal.4th 208, 226.)” However, there is no conflict between the clerk’s and reporter’s transcripts in the present case. Section 186.30 requires defendants to register when they are released from custody, and section 186.32 merely specifies the type of information that must be provided pursuant to section 186.30. Accordingly, we reject defendants’ argument.
III. Disposition
The judgment is affirmed.
WE CONCUR: McAdams, J., Duffy, J.