Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC617648
RUSHING, P. J.
Appellants Phayboon Khensokvann, Sary Lour, and Souney Keophan appeal a judgment following their conviction after jury trial of conspiracy to commit burglary (Pen. Code, §§ 182, subd. (a); 459-460, subd. (a)) and participation in a criminal street gang (§ 186.22, subd. (a)), along with other crimes.
All further statutory references are to the Penal Code, unless otherwise noted.
Appellants assert the following errors on appeal: (1) the trial court erred in denying the motion to suppress evidence; (2) there was insufficient evidence to support the jury’s finding that appellants were guilty of participating in a criminal street gang; (3) the trial court erred in admitting expert opinion of gang activity; (4) the trial court erred in denying the motions to bifurcate and sever; (5) the trial court erred in admitting evidence that appellants committed the prior burglary; (6) the trial court committed instructional error; and (7) the restitution order was unauthorized as to appellant Lour.
Statement of the Facts and Case
At 1:45 p.m. on January 18, 2006, San Jose Police Officer Glenn Albin and Los Gatos Police Officer Mike D’Antonio were working as undercover narcotics agents in northeast San Jose. The officers were wearing plain clothes and were in an unmarked SUV that was stopped at the intersection of Hostetter and Morrill at a traffic light.
While waiting at the stop light, the officers saw a white Chevy Tahoe SUV turn left from Morrill onto Hostetter. Albin saw that the windows on the Tahoe were tinted, and based on how dark the tinting was, and the fact that he could not see clearly into the SUV, he believed the tinting was illegal. D’Antonio called the Los Gatos Police Department for a registration check and found the Tahoe was registered to an owner in Long Beach, California.
The Tahoe proceeded to drive east on Hostetter, then south on Stebbins. It moved about five to 10 miles per hour, and the driver was riding the brakes. Albin got out of his car to watch the Tahoe, and saw that the brake lights continued to go on and off while it went down the street. At the end of the street, the Tahoe made a U-turn, and came back toward Albin, who could then see there were two Asian men in the front of the car. As the car was driving along the street, Albin could see one man look one direction, and the other man look the other direction.
The Tahoe drove past Albin, turned back onto Hostetter eastbound, and went to the next street, Turiff, and turned south. Albin drove to the intersection of Hostetter and Turiff, got out of his car and watched the Tahoe. Albin saw the Tahoe drive slowly down Turiff, with the driver riding the brakes. At the end of Turiff, the Tahoe turned left, and Albin could no longer see it for a while. Albin got back into his car and drove in the direction the Tahoe had gone, and when he saw the Tahoe again, it was parked on the curb line in front of 1426 Danby. Albin saw a passenger get out of the Tahoe from the door behind the driver, and walk towards the house, where Albin lost sight of him. The passenger then returned to the Tahoe, leaned into the driver’s window for a few moments, and then re-entered the car.
Based on his observations of the driving of the car, the passenger’s activity and the tinted windows, Albin decided to initiate a car stop of the Tahoe. Albin drove his SUV to the front of the Tahoe, and angled it so that his front bumper was about a foot from the Tahoe’s front bumper, and the Tahoe was blocked from moving forward. At the time, the back windows of the Tahoe were up, and the front driver’s window was partially down. As they were pulling up, both Albin and D’Antonio held up their badges and yelled. “Police, stop.” Albin could see four occupants of the Tahoe through the windshield, which was not tinted.
Albin and D’Antonio got out of the car. Albin drew his gun and held it at his side. He believed at the time that the occupants of the Tahoe were burglars, knew about a recent residential burglary in the area where a gun was stolen, and also knew that residential burglars often carry guns. Both he and D’Antonio both identified themselves as police officers by yelling “Police, stop.”
Albin saw the driver’s window go down, and the Tahoe began to move in reverse. Albin pointed his gun at the car and yelled at the driver to stop. D’Antonio also pointed his gun at the Tahoe. After driving backward for a few feet, and driver of the Tahoe stopped the car. Albin and D’Antonio walked to the front of the Tahoe and pointed their guns at it. Albin told the occupants to put their hands where he could see them. The front passenger was having difficulty keeping his hands on the dashboard, and seemed nervous. D’Antonio ordered the driver to get out, at which point D’Antonio holstered his gun, and directed the driver to the back of the Tahoe. The driver of the Tahoe was appellant, Khensokvann.
Albin then saw a scanner underneath the center console of the Tahoe. The scanner was scanning different channels, and Albin could hear an occasional San Jose police unit or dispatch. After Albin saw the scanner, and some two-way radios inside the Tahoe, D’Antonio handcuffed the driver and had him sit on the curb.
Albin went to the passenger’s side and had the passenger get out of the car. The front passenger was appellant, Lour who told D’Antonio he was on probation. D’Antonio pat-searched the passenger and removed a gun from his clothing. Albin then radioed for back-up. When those officers arrived, they assisted Albin and D’Antonio in removing the backseat passengers from the Tahoe.
The Tahoe was searched, and inside was found the operable police scanner that was tuned to San Jose radio traffic. There was a set of 2-way radios. A pair of knit gloves, as well as a red handled screwdriver were found. In the glove compartment were a pair of binoculars, and a letter addressed to Khensokvann. In the rear cargo area of the Tahoe were a pair of nunchuks, a flashlight, and a bag of rubber gloves.
The person who was seated behind the driver, and had gotten out of the car to go up to 1426 Danby was co-defendant Keobunta. Appellant Keophan was seated in the back seat on the passenger side. Keobunta told D’Antonio that he got out of the car and went to the door of the house looking for a person named Mindy. He knocked on the door and asked if Mindy was there and the person said she was not.
About 10 minutes after the stop, Albin, D’Antonio and another officer went to the front door of 1426 Danby to talk to the occupant. Through an open window next to the front door, Albin could see two children playing at a kitchen table. Albin knocked at the door, and a woman came to the door. The woman testified that she lived at 1426 Danby, and that she was the only adult home on the afternoon of January18. She further testified that the police officers were the only people who knocked on the door that afternoon, and that no one asked her if Mindy lived there.
At the time of the stop, Khensokvann was wearing solitaire diamond earrings belonging to the Via Crusis family, whose home in Porterville, California was burglarized on the afternoon of December 2, 2005. Lour was wearing diamond flower patterned earrings also belonging to Mrs. Via Crusis. The gun that was found in Lour’s possession was registered to Manuel Via Crusis.
Porterville is located about 150 miles south of San Jose, and is north of Long Beach where appellants lived.
With regard to the burglary of the Via Crusis home in Porterville, Manual and Penny Via Crusis testified that their home was burglarized on the afternoon of December 2, 2005. The burglars cut the screen door in front and forced the inside door open. Mercedes Munoz, a neighbor of the Via Crusises testified that between 12:00 and 1:00 p.m. on December 2, she was walking to her mailbox. She saw a white SUV parked in front of the Via Crusises’ home. When she was shown photographs of the Chevy Tahoe appellants were driving in this case, she said it looked similar to the one she saw in her neighborhood. Munoz saw through the driver’s window an Asian male between 24 and 36 sitting in the driver’s seat. She saw another Asian male of about the same age come from the house and stop between it and the car. Munoz testified that the driver did not get out to the car, and that she did not know what the men were doing. She said the car was there for a total of 10 minutes. Munoz could not identify any of the men in court as those she saw the day of the burglary of the Via Crusis residence.
Keophan’s home in Long Beach was searched following the arrest in this case. The police found a functioning diamond tester, as well as a traffic ticket showing Keophan had driven the Tahoe on December 20, 2005, in an area near Porterville. The parties stipulated at trial that Keophan was stopped on Highway 65 by a California Highway Patrol officer while driving the Tahoe. Keophan told the officer he was dropping off a friend in Porterville.
Gang Evidence
Detective Galvan of the Long Beach Gang Enforcement Unit testified as an expert in Asian criminal street gangs. Galvan testified that Suicidals is a Southeast Asian gang in Long Beach that is made up of primarily Cambodian members. The Suicidals is structured informally, and has about 100 members. The primary criminal activities of the Suicidals include attempted murder, assault with a deadly weapon, robbery, burglary, auto theft, narcotics sales and residential burglary.
The prosecution introduced into evidence People’s Exhibits 48, and 49, that were certified records of conviction of Bubemme Siprasert for narcotics sales, and Dhonee Chamroeun for grand theft, respectively. Galvan testified that both Siprasert and Chamroeum are members of the Suicidals.
Galvan testified about another criminal street gang called the Asian Boys that was similar in structure to the Suicidals, and had been in existence for more than 15 years, and had about 400 members. The primary criminal activities of the Asian Boys includes murder, attempted murder, assault, robbery, extortion, auto theft, auto burglary, and residential burglary.
The Suicidals and Asian Boys are some of a group of gangs that ally together in wars between gangs, and members of the Suicidals and the Asian Boys have been involved in theft crimes together. Some Suicidals and Asian Boys are members of the same families.
Galvan testified that Asian gangs tend to target the Asian community in committing crimes. Asian immigrants who do not speak English are typical targets, many of whom mistrust banks, and keep jewelry and cash in their homes. Many thefts committed by the Suicidals and Asian Boys were of cash and jewelry from homes, with jewelry being taken to pawn shops and resold.
Suicidals and Asian Boys would often leave Long Beach to commit crimes, because it was harder for police to identify them in other cities and counties. For residential burglaries, gang members would drive around a neighborhood a few times to see who was around and to watch houses. Gang members could use walkie-talkies and police scanners to see if the police were in the area.
Galvan testified regarding the gang affiliations of appellants in this case. Khensokvann was a member of the Suicidals, had a Suicidal tattoo, and used the gang moniker “Stalker,” and admitted to gang membership Keophan was a member of the Asian Boys, had Asian Boys tattoos, used the gang moniker, “Little Baby,” and admitted to gang membership. Keobunta was a member of the Suicidals, had Suicidal tattoos, used the gang moniker, ‘Shaggy,” and admitted to gang membership. Lour was an affiliate of the Suicidals. His older sister Katie Lour, who had two children with Keophan, had been a member of the Suicidals, and his younger brother, Randy was a member. Lour never admitted to being in the Suicidals, but Katie and other gang officers told Galvan that Lour was an affiliate.
The prosecutor at trial asked Galvan a hypothetical question to assume the circumstances of the San Jose incident were true and that appellants had conspired to commit a residential burglary. Galvan testified that appellants were acting for the benefit of and in association with a gang. Galvan further testified appellants were acting for the benefit of a gang if they possessed the stolen property from the Porterville burglary, the burglar’s tools and the nunchuks. Galvan stated that in his opinion, Lour possessed the firearm for intimidation and/or protection, and in doing so, he was acting for the benefit of a gang.
An amended information charged appellants and codefendant Naris Keobunta with the following seven crimes: conspiracy to commit burglary (§ 182, subd. (a)(1); §§ 459-460, subd. (a) - count 1). The following overt acts were alleged in furtherance of the conspiracy: (1) appellants “drove in an SUV slowly through a San Jose residential neighborhood while looking at each home in the street”; appellants “had a police scanner tuned to the San Jose Police Department radio frequency”; (3) Lour “was armed with a stolen 9 mm Glock handgun in his waistband”; (4) appellants “possessed a set of 2-way handheld radios, several pairs of gloves and a foot long screw driver in the SUV”; (5) defendants “got out of the SUV, walked up to the front door of a home and returned 5 to 10 seconds later without knocking or ringing the doorbell.”; participating in a criminal street gang (§ 186.22, subd. (a) - count 2); receiving stolen property (§ 496, subd. (a) - count 3); possession of a firearm by a felon (appellant Lour) (§ 12021, subd. (a)(1) - count 4); possession of a specified weapon, nunchaku (§ 12020, subd. (a)(1) - count 5); false impersonation of another (appellant Keophan) (§ 529; count 6); possession burglary tools (§ 466 - count 7). The information also alleged arming, gang and prior conviction enhancements. (§§ 12022, subd. (a)(1); 186.22, subd. (b)(1)(A); 667, subds. (a), (b); 667.5, subd. (b).)
The case proceeded to jury trial. One counts one, two, and seven the jury found all appellants guilty. One count three, the jury found appellants Lour and Khensokvann guilty, but acquitted appellant Keophan and codefendant Keobunta. On count 5, the jury acquitted all appellants. On count six, the jury convicted Keophan. The jury found the arming and gang enhancements true as to all the charges it convicted appellants.
Lour was sentenced to a total term of five years in state prison, and was ordered to pay a restitution fine in the amount of $5,000 as well as $24,650 in restitution to the Via Crusises for the losses associated with the Porterville burglary. Keophan was sentenced to a total term of 13 years in state prison, and was ordered to pay a restitution fine in the amount of $10,000. Khensokvann was sentenced to a total term of 19 years in state prison, and was ordered to pay a restitution fine in the amount of $10,000. Appellants filed timely notices of appeal.
Discussion
Appellants assert the following arguments on appeal: (1) the trial court erred in denying the motion to suppress evidence; (2) there was insufficient evidence to support the jury’s finding that appellants were guilty of count 2: participating in a criminal street gang (§ 182.22, subd. (a)), and that the gang enhancement allegations were true; (3) the trial court erred in admitting expert opinion of gang activity; (4) the trial court erred in denying the motions to bifurcate and sever; (5) the trial court erred in admitting evidence that appellants committed the prior burglary; (6) the trial court committed instructional error; and (7) the restitution order was unauthorized as to Lour.
Motion to Suppress Evidence
Khensokvann, Lour and Keophan assert the trial court erred in denying the motion to suppress.
On appeal from the denial of a motion to suppress evidence, our standard of review is settled. In ruling on a motion to suppress, “the superior court sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences, and hence . . . on review of its ruling by appeal or writ all presumptions are drawn in favor of the factual determinations of the superior court and the appellate court must uphold the superior court’s express or implied findings if they are supported by substantial evidence. [Citation.]” (People v. Laiwa (1983) 34 Cal.3d 711, 718; People v. Glaser (1995) 11 Cal.4th 354, 362.) However, “[i]n determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser, supra, 11 Cal.4th at p. 362.)
Here, the question is whether the officers’ stop of appellants’ Tahoe was an arrest, as appellants’ contend, in which case the officers would have needed probable cause, or a detention, which would have required the officers to have a reasonable suspicion or criminal activity. The Attorney General asserts the stop was a detention, and was based on the officer’s reasonable suspicions that the occupants of the Tahoe were casing the neighborhood to commit a residential burglary.
The question of whether a car stop was a detention or an arrest was addressed in the case of People v. Soun (1995) 34 Cal.App.4th 1499 (Soun). In Soun, six young men were involved in the attempted robbery and murder of a video store owner. Thereafter, an officer spotted a car the police suspected was involved in the crimes. As the officer followed the car, several occupants turned to look at him, then drove in an evasive manner and ultimately back past their point of origin. After the police stopped the car, the defendant was removed at gunpoint by a large number of officers, forced to lie on the ground, handcuffed and placed in a patrol car, transported a distance of three blocks to a parking lot and then held for up to an additional 30 minutes without being told why he had been stopped or being permitted to communicate with his confederates. (Id. at p. 1517.) This court stated none of these evidentiary factors would necessarily require a conclusion that the defendant had been arrested rather than detained. “Courts have, for example, declined in particular circumstances to base a finding of de facto arrest on evidence that the officers stopped the individual at gunpoint [citation], or required him or her to get out of a car [citation] and lie down on the pavement [citation], or handcuffed him or her [citations], or placed him or her in a police car [citation], or transported him or her for legitimate police purposes short of booking or custodial interrogation [citations], or held him or her for more than a minimal amount of time [citations]. ‘[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances. [Citations.]’ [Citations.]” (Ibid.; In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385.)
Here, the stop of the Chevy Tahoe took far less time than that in Soun, and resulted in a quick determination by the officers that the items in car were sufficient to provide probable cause to arrest the occupants. Specifically, once the officers stopped the car, and removed Khensokvann, they saw the police scanner in the front of the car. When the officers removed Lour, who was acting nervous and had difficulty keeping his hands on the dash, he told them he was on probation, and the officers located a gun in his clothes. Here, the stop took little more than three to four minutes before backup officers arrived and were able to determine that the items in the Tahoe provided probable cause for arrest. The officers in this case “ ‘diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly . . . .’ ” (Soun, supra. 34 Cal.App.4th at p. 1517.) The stop in this case was a detention, not an arrest.
Whether the detention in this case was supported by a reasonable suspicion of criminal activity depends on the totality of circumstances. (United States v. Arvizu (2002) 534 U.S. 266, 273, 277.) A detention is reasonable under the Fourth Amendment when “based on ‘some objective manifestation’ that criminal activity is afoot and that the person to be stopped is engaged in that activity.” (People v. Souza (1994) 9 Cal.4th 224, 230.) The detaining officer must be able to “point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (Id. at p. 231.) Under this standard, a detention requires only a “minimal level of objective justification” (Illinois v. Wardlow (2000) 528 U.S. 119, 123), and an officer may initiate one “based not on certainty, but on the need to ‘check out’ a reasonable suspicion” (U.S. v. Clark (D.C.Cir.1994) 24 F.3d 299, 303). “ ‘The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . .’ ” (People v. Souza, supra, 9 Cal.4th at p. 233)
Based on the circumstances of this case, it appears officers had a reasonable suspicion of criminal activity when they detained appellants. Officer Albin testified that he had patrolled the area before, and that it was a predominantly Asian residential community. Albin further testified that he knew there had been an increase in daytime residential burglaries by Asian gang members, and that about a week before, there had been a residential burglary in the area, and that a nine-millimeter Glock pistol was stolen. When he saw the Tahoe, Albin observed what he believed to be illegal window tinting that was so dark he could not see inside the car from the side. Albin also saw the Tahoe driving through the neighborhood in an extremely slow manner, and appeared to be “casing” the area. At the point Albin decided to detain appellants, he had seen the Tahoe stop, and one of its passengers get out and go to the front door of a house, and quickly return to the car. This, coupled with the tinted windows and slow, methodical manner of driving lead Albin to have a reasonable suspicion of criminal activity.
The facts of this case are remarkably similar to those in People v. Remiro (1979) 89 Cal.App.3d 809 (Remiro), in which officers made similar observations of a car casing a neighborhood leading to a reasonable suspicion of criminal activity. In Remiro, a police officer on patrol in a residential neighborhood noticed a van driving very slowing through the neighborhood. The officer had been patrolling the area in the past, and knew there had been a large number of residential and auto burglaries in the area. The officer also knew that vans were often used to commit burglaries, and the type of driving he witnessed was consistent with “ ‘casing.’ ” (Id. at p. 824.)
The Remiro court concluded that the officer had a reasonable suspicion to justify a detention. Specifically, the court noted the “unusually slow speed of the vehicle [citation], the lateness of the hour [citation], the frequency of burglaries and thefts from vehicles in the area [citation], and the circuitous route of the van through the neighborhood suggested to [the officer] the occupants were ‘casing’ the are preparatory to some criminal activity [citation].” (Remiro, supra, 89 Cal.App.3d at p. 828.) The court further concluded, “[t]he investigative stop of the van was legally justified.” (Ibid.)
Here, other than the lateness of the hour, there are little differences between the Remiro case and the present facts. Indeed, the time of day in the present case provides more justification for a finding of reasonable suspicion, because here, Albin knew there had been an increase in daytime residential burglaries.
The same rationale from Remiro should be applied to the present facts. Based on the totality of circumstances, the detention of appellants as they were driving the Tahoe was justified, and supported a reasonable suspicion of criminal activity. The trial court did not err in denying the motion to suppress evidence.
Sufficiency of the Evidence of Count 2 and the Gang Enhancements
Lour asserts the evidence was insufficient at trial to support a conviction on count 2, that the primary activity of the Suicidals and Asian Boys is one of the crimes listed in the gang statute. In addition, Khensokvann and Keophan assert the evidence was insufficient to support the jury’s finding of true on the gang enhancement, that the crimes in this case were committed for the benefit of a gang.
When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence—i.e., evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 577-578.)
Primary Activity of the Suicidals and Asian Boys is a Listed Crime
In People v. Sengpadychith (2001) 26 Cal.4th 316, 323, the California Supreme Court clarified that “[t]he phrase ‘primary activities,’ as used in [section 186.22], implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.]” The court went on to explain that “[s]ufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in [People v.] Gardeley [(1996)] 14 Cal.4th 605 [(Gardeley)].” (Sengpadychith, supra, 26 Cal.4th at p. 324, italics in original.)
In People v. Gardeley, supra, 14 Cal.4th 605, testimony from a police expert established that defendant Gardeley’s gang was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. (Id. at p. 620; see § 186.22, subd. (e)(4) & (8).) The expert “based this opinion on conversations with the defendants and with other [gang] members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies.” (Gardeley, supra, 14 Cal.4th at p. 620.) Similar expert testimony was held sufficient to satisfy the primary activities prong of section 186.22, subdivision (f) in People v. Duran (2002) 97 Cal.App.4th 1448, 1465; People v. Galvan (1998) 68 Cal.App.4th 1135, 1141; and People v. Olguin (1994) 31 Cal.App.4th 1355, 1370.
Here, as in Gardeley, the testimony of a police expert established that the primary activities of both the Suicidals and the Asian Boys included many of the crimes listed in section 186.22, subdivision (e). Appellants assert Galvan’s opinion in this regard was unreliable, because he based his opinion in part on crime reports that were unsubstantiated. However, what appellants fail to acknowledge is that Galvan also based his opinion about the gangs’ primary activities on his experience of personally investigating approximately 60 of their crimes, as well as his own discussion with other officers in the Long Beach Gang Unit.
Here, Galvan’s testimony about the primary activities of the Suicidals and the Asian Boys was based on acceptable evidentiary foundations under Gardeley, and provides substantial evidence to support the conviction in count 2. (Gardeley, supra, 14 Cal.4th at p. 620)
Crimes Committed for Benefit of Criminal Street Gang
To prove the gang enhancement allegations, the prosecution had to show, and the jury had to find, among other things, that the defendants’ crimes were committed (1) “for the benefit of, at the direction of, or in association with any criminal street gang . . . .” (§ 186.22, subd. (b)(1); People v. Gardeley, supra,14 Cal.4th at pp. 616-617.)
Appellants claim that while the crime may have been committed by gang members, there is insufficient evidence to support a finding that the crimes were perpetrated for the benefit of a gang. However, such argument overlooks the alternative element in the statute, specifically that the crime may be committed “in association with [a] criminal street gang . . . .” (§ 186.22, subd. (b)(1).)
Under People v. Morales (2003) 112 Cal.App.4th 1176 (Morales), the evidence in the present case supports a finding that each defendant committed the crime “in association with [a] criminal street gang.” (§186.22, subd. (b)(1).) In Morales, the defendant and two fellow gang members entered a house and robbed the occupants. The defendant was convicted of robbery with a gang enhancement. On appeal, he argued that the fact that all three perpetrators were members of the same gang did not by itself support the gang enhancement. (Morales, supra, 112 Cal.App.4th at p. 1197.)
In rejecting this claim, the Morales court noted that the gang expert testified that the robbery “involved three gang members acting in association with each other. The gang provided ‘a ready-made manpower pool . . . .’ That is, one gang member would choose to commit a crime in association with other gang members because he could count on their loyalty. They would ‘watch his back . . . .’ In addition, the very presence of multiple gang members would be intimidating. The crime would benefit the individual gang members with notoriety among the gang, and the gang with notoriety among rival gang members and the general public.’ ” (Morales, supra, 112 Cal.App.4th at p. 1197.)
The Morales court acknowledged that arguably, the mere fact that three gang members committed a crime might not by itself be enough to establish that it was committed for the benefit of the gang. However, the evidence of their joint participation was nevertheless sufficient to support a finding that each member committed the robbery in association with a gang. “Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members.” (Morales, supra, 112 Cal.App.4th at p. 1198.)
Here, the record demonstrates appellants, as members of the Suicidals and Asian Boys committed the collective criminal action of conspiracy to commit burglary in association with other gang members. There is nothing in the record to indicate that appellants traveled outside of Long Beach, to San Jose to commit a residential burglary as a frolic and detour unrelated to their gang association. Indeed, their action of leaving their home community, traveling in a group, casing a residential neighborhood during the daytime while carrying tools to commit a burglary was consistent with other residential burglaries committed by the Suicidals and Asian Boys. In the present case, we find the evidence concerning gang affiliation sufficient to support a finding that appellants’ crimes were committed “in association with [a] criminal street gang.” (§ 186.22, subd. (b)(1).)
Expert Opinion of Gang Activity
Lour asserts the trial court erred in admitting expert testimony on gang activity based entirely on hearsay, and that such admission violated his due process right to confrontation.
Here, Detective Galvan was qualified as an expert in gangs, and testified that both Siprasert and Chamroeun were members of the Suicidals. Galvan stated that he had talked to Siprasert in the past, and Siprasert identified himself as a Suicidal, and used the gang moniker, “Mad Dog.” Galvan further testified that he had arrested Siprasert in the past in connection with his gang activities with the Suicidals. With regard to Chamroeun, Galvan stated that he believed Chamroeun to be a Suicidal because of his gang moniker of “Shorty,” as well as the statements of other Suicidal members who identified Chamroeum as a member.
Lour asserts Galvan’s testimony was improperly admitted, because the opinion was based on hearsay. Lour further asserts the jury could have assessed the testimony from Siprasert and Chamroeun directly to determine if they were, in fact gang members. He argues that the information was hearsay, and its admission violated his constitutional right to confrontation as explained in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Davis v. Washington (2006) 546 U.S.1213.)
In Crawford, supra, 541 U.S. 36, the Supreme Court concluded that out-of-court statements made by witnesses are subject to the confrontation clause. (Id. at pp. 50-52.) The court explained that the confrontation clause bars use of the testimonial statement of an unavailable witness where there has been no prior opportunity to cross-examine the witness. (Id. at p. 68.) Thus, under Crawford, testimonial statements may not be admitted unless the defendant had an opportunity to cross-examine the person whose hearsay testimony is sought to be introduced. The test for determining whether a statement is testimonial is not whether its use in a potential trial is foreseeable. Rather, the test is whether the statement was obtained for the purpose of potentially using it in a criminal trial or determining if a criminal charge should issue. (Id. at pp. 68-69.) However, “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law . . . .” (Id. at p. 68.) For example, the Supreme Court specifically identified business records as nontestimonial evidence. (Id. at p. 56.)
In People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas), the court rejected a similar claim that the gang expert’s reliance on out-of-court statements in concluding that other crimes were committed by gang members violated his right to confrontation under Crawford. (Thomas, supra, 130 Cal.App.4th at p. 1210.) The court noted that as a general rule, experts are permitted to identify and explain the information and sources on which they base their opinions, and that such sources may include hearsay. (Id. at pp. 1209-1210; see Evid. Code, §801; People v. Gardeley, supra, 14 Cal.4th 605, 617-618.) The court further noted that expert opinion may be founded on various matters, irrespective of whether they are themselves admissible. (Thomas, supra, 130 Cal.App.4th at pp. 1209-1210.) The court then reasoned that “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion.” (Id. at p. 1210; cf. People v. Butler (2005) 127 Cal.App.4th 49, 59 [spontaneous statements by eyewitnesses not inadmissible under Crawford]; People v. Saffold (2005) 127 Cal.App.4th 979, 984 [same re proof of service]; People v. Corella (2004) 122 Cal.App.4th 461, 467-469 [same re victim’s statement to 911 operator]; People v. Johnson (2004) 121 Cal.App.4th 1409, 1412-1413 [same re lab report analyzing contraband].)
We agree with the Thomas court’s analysis and conclusion. As we explained in People v. Vy (2004) 122 Cal.App.4th 1209, 1223, footnote 9, “[O]pinion testimony from a gang expert, subject to the limitations applicable to expert testimony generally, is proper. [Citation.] Such an expert—like other experts—may give opinion testimony that is based upon hearsay, including conversations with gang members as well as with the defendant. [Citations.] Such opinions may also be based upon the expert’s personal investigation of past crimes by gang members and information about gangs learned from the expert’s colleagues or from other law enforcement agencies. [Citations.]” (See also People v. Duran (2002) 97 Cal.App.4th 1448, 1465.)
Here, the information upon which Galvan based his opinion was not admitted for the truth of the matter asserted, but to reveal the basis for his opinion concerning whether the predicate crimes were perpetrated by gang members. That information, therefore, did not constitute evidence of statements that were made “other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, §1200, subd. (a); see, e.g., People v. Mayfield (1997) 14 Cal.4th 668, 741.)
Bifurcation of the Gang Evidence
Appellants Khensokvann and Keophan assert the trial court erred when it denied the defense motions to bifurcate the gang enhancement and sever count 2. Specifically, they argue the gang evidence was not relevant to intent or motive for the charged crime of conspiracy to commit burglary, because evidence of the objects in the Tahoe was enough to demonstrate that. Moreover, appellants assert, the gang evidence added nothing to proof of intent to conspire to commit burglary.
“It shall be the duty of the judge to control all proceedings during the trial . . . with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.” (§ 1044.) The Supreme Court has interpreted this language to authorize the trial court to bifurcate certain issues from the trial. (People v. Calderon (1994) 9 Cal.4th 69, 75.)
Here, the trial court cited People v. Martin (1994) 23 Cal.App.4th 76 (Martin), in its order denying the motion. In Martin, the defendant, who was convicted of first degree murder with a gang enhancement, contended he was denied a fair trial by the trial court’s failure to bifurcate the section 186.22, subdivision (b) enhancement for gang activity. This court held that bifurcation of a gang enhancement is an issue to be resolved by the trial court in the exercise of its discretion. (Id. at p. 81.) In Martin, the evidence of motive was relevant to both the crime committed (murder or manslaughter) and to the requisite intent for the enhancement. (Ibid.)
In the present case, although appellants now assert the other evidence at trial was sufficient to demonstrate motive and intent in the absence of the gang evidence, at trial, appellants asserted a different theory as a defense. Appellants argued they were unaware of the stolen property inside the Tahoe at the time they were riding in it, they were not involved with the Porterville burglary, and they were driving though the neighborhood slowly at the time they were stopped because they were helping Keobunta find his old girlfriend. Therefore, by appellants’ own arguments at trial, the evidence found inside the Tahoe and their conduct were not enough to prove intent and motive to demonstrate conspiracy to commit burglary. Evidence of appellants’ gang affiliations was relevant to demonstrate that the group was in the neighborhood conspiring to commit a residential burglary, and was “important to the motive” in this case. (Martin, supra, 23 Cal.App.4th at p. 81.)
The trial court did not err in denying appellants’ motion to bifurcate the gang enhancements and sever count 2.
Evidence Related to the Porterville Burglary
Appellants’ assert the trial court erred when it allowed the prosecution to admit evidence related to the Porterville burglary.
The trial court allowed Mercedes Munoz to testify that she saw a white vehicle and two Asian males in the vicinity of the Via Crusis home on the date of the burglary, as well as evidence that 18 days after the burglary appellant Keophan received a traffic ticket while driving the Tahoe in the Porterville area.
The trial court admitted the evidence to demonstrate intent, motive, and that appellants knew the objects found in the Tahoe were stolen, with a limiting instruction to the jury that provided, in part: “the People are about to present evidence about activities that are not charged in this case. You may consider this evidence only of the People have proved by a preponderance of the evidence that a defendant, in fact, committed the uncharged acts. . . . [¶] . . . If you decide a defendant committed the uncharged act, 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 residential burglary in San Jose; or the defendant knew that the property found in the Chevrolet Tahoe was stolen when they allegedly acted in this case; or the defendant had any plan or scheme to commit the offense alleged in this case.” A similar limiting instruction was included in the court’s final instructions to the jury as well.
Appellants assert the testimony of the Via Crusises was sufficient to demonstrate that the property found in the Tahoe was stolen, and that appellants knew that fact. However, while this argument is accurate, it does not mean the additional evidence of Munoz’ observations of the white car and Keophan’s traffic ticket was irrelevant and inadmissible. Specifically, the additional evidence connected one or more appellants more closely to the Porterville burglary. As a result, the evidence was relevant not only to prove appellants knew the property in the car was stolen, but that they conspired to commit another burglary. Moreover, the similarity of the Porterville burglary with the present facts “support[s] the inference that [appellants] probably ‘harbor[ed] the same intent in each instance.’ ” (People v. Ramirez (2006) 39 Cal.4th 398, 463.)
The trial court did not err in admitting Munoz’ testimony and evidence of Keophan’s traffic ticket along with the limiting instruction.
Instructional Error
Appellants assert three instructional errors in this case relating to the trial court’s failure to sua sponte instruct the jury that (1) a single conspiracy cannot give rise to predicate offenses for the purpose of a pattern of criminal gang activity; (2) it must unanimously agree on the predicate offense for the pattern of criminal gang activity; and (3) it must unanimously agree on which criminal street gang appellants belonged to.
We must determine from an examination of the entire record whether a claimed instructional error mandates reversal. (See People v. Guiton (1993) 4 Cal.4th 1116, 1130.) Instructional error depends on whether there is a reasonable likelihood that the misstatement led the jury to misconstrue or misapply the law. (Estelle v. McGuire (1991) 502 U.S. 62, 70-75; People v. Clair (1992) 2 Cal.4th 629, 663.)
Reversal is warranted only on a determination that it is reasonably probable that defendant would have obtained a more favorable result in the absence of any error. (People v. Watson (1956) 46 Cal.2d 818, 836-838.) As a general rule, “ ‘if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis. . . . Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.’ [Citations.]” (People v. Flood (1998) 18 Cal.4th 470, 492, quoting Rose v. Clark (1986) 478 U.S. 570, 579.) Instructional error, such as that claimed here, is “ordinary trial error whose prejudicial effect may be assessed in light of the entire record.” (People v. Flood, supra, 18 Cal.4th at p. 503.)
Conspiracy as Predicate Offense for Pattern of Criminal Activity
Appellants assert the trial court erred by failing to sua sponte instruct the jury that conspiracy cannot count as more than one predicate offense of purposes of the gang enhancement.
Specifically, the jury was instructed that a criminal street gang is one “whose members . . . have engaged in a pattern of criminal gang activity.” A “pattern of criminal gang” activity was defined as having the following elements: “one, the commission of or conspiracy to commit, or conviction of, or any combination of two or more of the following crimes: burglary, robbery, assault with a deadly weapon, grand theft, grand theft with a vehicle, possession for sale of a controlled substance; two, at least one of those crimes was committed after September 26, 1988; three, the most recent crime occurred within three years of one of the earlier crimes; and four, the crimes were committed on separate occasions, or were personally committed by two or more persons.”
Appellants assert the instruction given in this case “authorized” the jury to find the “pattern of criminal gang activity” element by finding “the commission by two or more gang members of the conspiracy to commit burglary charged in this case.” Appellants further argue the court should have sua sponte instructed the jury that the crime of conspiracy to commit burglary in the present case could only give rise to one of the necessary predicate offenses.
In reviewing the record in this case, there is nothing to indicate the trial court’s instructions created a reasonable likelihood that the jury misconstrued or misapplied the law. (Estelle v. McGuire, supra, 502 U.S. 62, 70-75; Boyde v. California (1990) 494 U.S. 370, 378-381; People v. Clair, supra, 2 Cal.4th 629, 663.) Simply put, we see no indication based on the record before us that the jury impermissibly double counted the conspiracy in the present case for the requisite predicate offenses. Appellants have not demonstrated instructional error regarding the pattern of criminal gang activity element.
Unanimity Instruction on Predicate Offense
Appellants contend the trial court erred in failing to instruct the jurors that they must unanimously agree on which predicate offenses that establish the pattern of criminal activity.
Under the constitutional right to due process, a defendant “is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged.” (People v. Jones (1990) 51 Cal.3d 294, 305.) From this right, a rule has emerged that ensures a unanimous jury verdict: When a defendant is charged with a single criminal act but the evidence reveals more than one such act, the prosecution must either select the particular act upon which it relies to prove the charge, or the court must instruct the jury sua sponte that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
In People v. Funes (1994) 23 Cal.App.4th 1506 (Funes), the court rejected a claim that a unanimity instruction was required concerning the predicate offenses that make up the “pattern” element of the gang enhancement. The court found that element subject to an exception to unanimity based on penal statutes that contemplate a continuous course of conduct involving a series of acts over a period of time. The court explained, “Prior decisions on the continuous course of conduct exception focus ‘ “on the statutory language in an attempt to determine whether the Legislature intended to punish individual acts or entire wrongful courses of conduct.” ’ [Citations.] ‘[C]ertain verbs in the English language denote conduct which occurs instantaneously, while other verbs denote conduct which can occur . . . over a period of time.’ [Citation.] The same can be said for nouns. Here, in defining a ‘criminal street gang,’ the Legislature required a ‘pattern’ of criminal activity. The term ‘pattern’ suggests that the Legislature was primarily concerned with an entire course of conduct, not with individual acts. Consequently, we believe the ‘continuous-course-of-conduct’ exception may be applied to the ‘pattern of criminal gang activity’ element of [the gang statute]. This means, of course, that the jury was not required to unanimously agree on which two or more crimes constituted [a] pattern of criminal activity.” (Id. at pp. 1527-1528, fns. omitted.)
Appellants assert Funes was wrongly decided, and that in Funes, the evidence of each crime offered to prove a pattern was sufficient to qualify it as a predicate offense. Thus, it did not matter which ones each juror relied on. Appellants argue that here, jurors could have rejected the Chameroeum prior while accepting the Siprasert prior and vice versa. Accordingly, defendant argues that a unanimity instruction was necessary because there was a reasonable likelihood that jurors might have disagreed on the predicate crimes in finding the pattern element and might not have unanimously agreed on a factually sufficient basis for that finding. (See People v. Jones, supra, 51 Cal.3d at p. 322 [“reasonable likelihood”].)
Even if we assume for purposes of argument that a unanimity instruction was required, the omission here would not compel reversal. Failure to give a unanimity instruction is harmless if the record provides no rational basis for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that the defendant committed all acts if he or she committed any of them. (People v. Thompson (1995) 36 Cal.App.4th 843, 853; People v. Deletto (1983) 147 Cal.App.3d 458, 473.) A similar analysis applies here.
Given the evidence of the prior crimes committed by Siprasert and Chamroeun, the jurors had no rational basis to find that either of the two crimes presented by the prosecution did not occur. As to each of the two crimes, there was sufficient evidence they were committed by Suicidal members, and this evidence was uncontradicted. Moreover, there was no factual basis to distinguish between the two crimes. We find no reasonable likelihood, or even a reasonable possibility, that jurors did not find both of these crimes to be predicate offenses. Moreover, even if jurors inexplicably found one or the other crime to be predicate offenses, it is inconceivable that they did not also find the current offense to be the second required predicate offense.
Here, the jurors had no factual or rational basis to accept one prior crime but reject the other. Under the circumstances, the lack of unanimity instruction was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Riel (2000) 22 Cal.4th 1153, 1199.)
Unanimity Instruction on Which Gang Appellants Participated In
Appellants assert the trial court erred in failing to instruct the jury that it had to unanimously agree on which criminal street gang appellants were actively participating in. Appellants argue that when multiple acts are presented to prove a single count, a unanimity instruction must be given if there is a danger the jury will find the defendant guilty although the jurors disagree on the act he committed. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Appellants claim there was substantial evidence the conspiracy to commit burglary was committed for two different street gangs, the Suicidals and the Asian Boys.
A unanimity instruction is required when a jury could convict a defendant of a crime based upon evidence of more than one criminal act on which the jury may or may not all agree. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
Here, there is no such possibility. While there was evidence presented of appellants’ membership in two different gangs, there was no question about the act for which appellants were being held criminally accountable. Simply put, the criminal charge was that appellants committed conspiracy to commit burglary for the benefit of a criminal street gang. The jury could unanimously agree on that fact regardless of the gang to which any of appellants belonged to, or were acting for the benefit of. Therefore, a unanimity instruction was not required in this case.
Restitution
Appellant Lour contends the trial court erred in ordering him to pay restitution to Mr. and Mrs. Via Crusis in the amount to $24,650 as a result of their losses sustained from the Porterville burglary was unauthorized and must be stricken. The Attorney General concedes this issue.
Appellants rely on People v. Percelle (2005) 126 Cal.App.4th 164 (Percelle), in which the defendant was sentenced to state prison for 14 years, and ordered to pay victim restitution based on the auto theft charge of which he was acquitted. (Id. at pp. 179-181.) This court found that in a nonprobation case, there is no case law or statutory authority permitting a trial court to order victim restitution for a dismissed or acquitted count, and therefore, the victim restitution order was unauthorized. (Ibid.) Percelle rejected the argument that restitution was authorized because section 1202.4, subdivision (f), required the court to order restitution to a victim who has suffered economic loss as a result of the defendant's “conduct.” (Percelle, supra, 126 Cal.App.4th at p. 180.) Percelle said the subdivision merely described how to calculate the amount of restitution, and the statute in total made clear that the victim should receive restitution from a defendant convicted of that crime. (Ibid.)
Here, like Percelle, Lour was not convicted of the crime that resulted in the economic losses to Mr. and Mrs. Via Crusis. Although Lour was convicted of possession of stolen property from the burglary, it was the burglary itself that caused the economic harm in this case. There is no evidence the property was not returned to the victims following trial, or that the property was damaged while in Lour’s possession.
The restitution order was unauthorized in this case, because there was no substantial evidence that the victims suffered economic harm as a result of Lour’s conduct. Therefore, the order must be stricken.
Disposition
The judgment is modified to strike the restitution order in the amount of $24,650 as to Lour. As modified, the judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.