Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 01F08242
MORRISON, J.
Defendant Yong Lor appeals after a jury convicted him of two counts of attempted murder and found true gang and personal firearm use enhancements. He argues: (1) the gang enhancement is not supported by the evidence; (2) the court should have granted his motion to bifurcate trial of the gang enhancement; and (3) insufficient evidence was adduced to establish that he acted with the intent to kill or express malice required to sustain the attempted murder convictions. The first contention has merit; the remaining two do not. Accordingly, we will strike the gang enhancement and affirm the judgment as modified.
FACTS AND PROCEDURAL BACKGROUND
Defendant is a member of a gang known as the Asian Family Gangsters (AFG), which is part of the Hmong Nation Society (HNS), a gang based in the northern area of Sacramento. A rival gang, the Masters of Destruction (MOD), and an associated gang calling itself the Young Mafia Society (YMS), consider the southern area of Sacramento to be their territory. During the summer of 2001, the rival gangs were at war, with at least a dozen shootings between them.
On July 18, 2001, defendant, armed with a loaded weapon, drove into the Meadowview area of southern Sacramento. He accosted T.V., a 15-year-old boy who was a member of the YMS. T.V. had a loaded .32 caliber semiautomatic handgun in his pocket, and was carrying a pit bull puppy to show his friend who was waiting at the market of a nearby gas station. Using gang parlance, defendant asked T.V. about his gang membership. Not recognizing defendant, T.V. denied being a gang member, but asked defendant “where are you from.” Defendant responded with the letter “H,” which signified both his membership in the HNS and an aggressive intent, since he was confronting T.V. in MOD territory.
T.V. ignored defendant’s response and proceeded to the market, where he met Zang Her, also a MOD member, and Her’s wife, Helen. Upon arriving, he put the puppy down, turned in defendant’s direction, raised his arms in the air and said, “What’s up?” The gesture and words were intended to force defendant either to return and fight T.V., or to leave.
Upon seeing the gesture of engagement, defendant turned his car around and drove directly toward T.V. and his two companions. Defendant stuck his gun outside the driver’s side window, stopped the car about 20 to 36 feet from T.V., and fired at least a dozen shots at T.V. and Her. Several shots were aimed at T.V.’s head. T.V. returned fire. After several rounds hit the side of defendant’s car, defendant sped away.
T.V. was shot in the hand and elbow. Her was shot in the buttocks. The puppy was also injured.
Defendant’s car was found later that night at an apartment complex in North Sacramento. It had three bullet holes in the driver’s side door, which had been recently taped and painted. Defendant was arrested in Wisconsin several months later. The arresting officer told defendant that he was being arrested on a California warrant involving a homicide case. Defendant asked, “Did the guy die?”
Defendant testified that he was the victim of an unprovoked assault. He explained that he was in the Meadowview area because he had just finished taking his five-year-old stepdaughter to visit his sister. While stopped at an intersection, he heard his car’s glass shatter, and believed he was being attacked. Shielding the child from the assault, defendant returned fire with a gun he kept under the front seat. Then he stepped on the gas. Defendant admitted he used to be a member of HNS, but denied being an active member on the day of the shootings.
DISCUSSION
1. The Gang Enhancement Lacks Evidentiary Support
Facts
In order to establish the gang enhancement, the People called Sacramento Police Department Detective Jim Kang. A police officer for approximately 14 years, Officer Kang was assigned to the gang unit in 1999, and he specialized in Asian gangs and Asian organized crime. Officer Kang testified that defendant is a member of the AFG, a subset of the HNS, both of which are Asian street gangs.
The prosecutor then asked, “Can you tell us what their primary criminal activities are?” Officer Kang responded: “Sure. Primary activities of HNS traditionally have been shootings; shootings at rival gang members, shootings at other citizens. Shootings related to other types of crime; robberies, home invasion robberies, homicide with these guys.” He further testified that “[t]here are at least a dozen [shootings] that we can say was MOD versus HNS” during the period from May through October 2001, and that “everything that you can probably think of in terms of street gang activity, these guys have participated in.”
Later, the prosecutor asked, “I asked you the primary activities of HNS. I need to have you, for the record, give us a couple of examples in the form of predicate offenses for HNS.” In response, Officer Kang testified: “[T]he couple cases we have been using, we just use certain predicate--these predicate cases just means cases that have already been heard in court and the defendants have been convicted of, and it’s gang crimes that HNS did. [¶] Both of them were shootings. One happened in 1998. Another one . . . happened in 1996. [¶] The one in 1996--. . . Su Ne Kong (ph.) he is the one who got shot at. He was a MOD gang member, validated MOD gang member. Him and his buddies, other fellow MOD buddies, were in the north part of Sacramento, HNS territory, . . . out there looking for trouble and trouble found them, and he got shot. He got shot in the chest. He should have died. He is lucky to be alive. That is why that was an attempted murder case, just like this one, and he survived. [¶] HNS gang members were arrested. In fact, a couple of them even gave admissions that they were--they had committed the crime. They were doing it on behalf of their gang as well, too. It was a very strong case.”
Officer Kang testified that the second offense also occurred in 1996, under “very similar circumstances as well, too.” The victim was a member of the Tiny Little Rascals (TLR), which was “the same blood line” and “the same gang” as MOD. Officer Kang described the crime as “[a] TLR gang member gets shot by HNS AFG gang members.” When asked to provide details, Officer Kang testified: “It’s Kua Vang, Andre Vang, an[d] Bee Bang (ph.) and then Pou Xion (ph.). He is one as well. Pou Xion (ph.) is a AFG gang member I have arrested many times before and after this case. They admit to shooting at some TLR gang members as well, too. [¶] This happened over in the south area of Sacramento. This time the HNS side went out to the south part of Sacramento into MOD TLR area, and they laid in wait for our victims and shot at them and shot them. They were caught subsequently and also admitted to the crime as well, too. [¶] That one had both people that admitted AFG and HNS.”
Analysis
Defendant argues that the evidence was insufficient to prove that HNS was a criminal street gang or that it had committed two predicate offenses, thus undermining the gang enhancement finding. We agree.
“When the sufficiency of the evidence is challenged on appeal, we apply the familiar substantial evidence rule. We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 859.)
Increased punishment is prescribed where the defendant “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, . . .” (§ 186.22, subd. (b)(1).)
To prove a gang is a “criminal street gang,” “the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period. [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 617 (italics in original); see Pen. Code, § 186.22, subds. (e) and (f).)
The People may rely on expert testimony to establish the required elements of the gang enhancement (People v. Sengpadychith (2001) 26 Cal.4th 316, 322), but the expert’s opinion cannot be based solely on “nonspecific hearsay and arrest information.” (In re Leland D. (1990) 223 Cal.App.3d 251, 259 (Leland D.); see In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003 (Nathaniel C.).) Here, defendant argues the People relied exclusively on the type of expert testimony that is not sufficient to prove the gang enhancement. Several cases that have considered analogous arguments lend support to this argument.
In Leland D., the court held that the expert testimony was insufficient to prove a gang enhancement because the expert did not provide any details of the crimes he attributed to the gang and based his opinion solely on “hearsay statements from unidentified gang members and information pertaining to arrests of purported gang members . . . .” (Leland D., supra, 223 Cal.App.3d at p. 259.) The expert’s testimony was the only evidence offered to prove the gang enhancement, and the evidence did not specify “[e]xactly who, when, where and under what circumstances” the gang crimes were committed. (Id. at pp. 259-260.) Because this testimony provided no more than conclusory and general pronouncements about the gang’s primary purpose of committing “gang crimes,” the appellate court found the expert’s testimony insufficient as a matter of law to prove the gang enhancement. (Ibid.)
Similarly, the court in Nathaniel C., supra, 228 Cal.App.3d 990, found the expert’s testimony with regard to the predicate offenses insufficient. There, “[t]he [expert] learned about the . . . assault from talking with San Bruno police officers. . . . The incident involved the shooting of a person the San Bruno police believed to be a member of the [gang], according to the [expert]. The [expert] said the San Bruno police believed the person [who] did the shooting also was a [gang] member, and that the shooting was gang-related.” (Id. at p. 998.) The court concluded the expert “offered only nonspecific hearsay of a suspected shooting of one [gang] member by another. The [expert] witness, a South San Francisco police officer, had no personal knowledge of the incident and only repeated what San Bruno police told him they believed about the shooting. Such vague, secondhand testimony cannot constitute substantial evidence that the required predicate offense by a gang member occurred.” (Id. at p. 1003.) Further, the expert’s statement that “the primary activity of all the gangs in his area is criminal” was insufficient to establish the primary activity element of the enhancement. (Id. at pp. 998, 1004.) The expert failed to tie this statement directly to the gang at issue in that case. (Ibid.)
By contrast, in In re I. M. (2005) 125 Cal.App.4th 1195, the expert’s testimony based upon police reports was held sufficient to support the gang enhancement. The expert testified that “one police report described the December 25, 2002 shooting of a man driving down a street in central Richmond, looking for his dog. [The expert] testified that ‘it appears’ that a member of the Sureño 13 gang, with a street name of ‘Monstro,’ ‘was in fact the shooter.’ [The expert] believed that Monstro was in custody and that the case ‘is being prosecuted still. I’m not one hundred percent certain.’ [The expert] testified that a second [police] report described an altercation between Monstro and his girlfriend’s father during which Monstro struck the victim with a shotgun. A third [police] report concerned a vehicle found in the driveway of another individual who [the expert] believed to be a member of the Sureño 13 street gang. The vehicle had been stolen out of El Cerrito. Monstro ‘subsequently was driving the vehicle, was pulled over by San Pablo police department. A firearm was located in the vehicle. . . . [Monstro] was aware it was stolen, and he admitted the firearm was his because he needed it for protection.’ [The expert] stated, further, that he believed that Monstro had been convicted in that case. ‘I know he’s just getting out of custody on that case.’” (Id. at p. 1206.) The I. M. court concluded this evidence was more compelling than that in Leland D., supra, 223 Cal.App.3d 251, or Nathaniel C., supra, 228 Cal.App.3d 990, and adequately established at least one predicate offense. (In re I. M., supra, 125 Cal.App.4th at p. 1207.) The court stated that, unlike the expert witness in Nathaniel C., the expert had personal knowledge that Monstro was a member of the gang. (In re I. M.,at p. 1207.) The police reports were admissible to show that the police were investigating Monstro in connection with the specified crimes. (Ibid.) The expert’s testimony reasonably demonstrated his personal knowledge that Monstro was being prosecuted for shooting the man looking for his dog, and the fact that Monstro was being prosecuted allowed the conclusion that there was significant evidence he had in fact committed the offense. (Ibid.) The evidence, therefore, adequately established that Monstro was a member of the gang that had committed a predicate offense. (Id. at pp. 1207-1208.)
Here, in addition to the instant offense and its obvious gang implication, Officer Kang was the sole source of evidence regarding other predicate acts which would show a “pattern of criminal gang activity.” (§ 186.22, subds. (a), (b)(1), (e) & (f).) With respect to predicate crimes, Officer Kang described two such offenses. Although he said one occurred in 1996 and the other in 1998, when describing each incident he said it occurred in 1996. In the first, an HNS member shot a MOD member who had ventured into HNS territory. Several unnamed HNS members were charged with attempted murder, and several admitted shooting the victim on behalf of HNS. Officer Kang did not, however, name who was shot, who did the shooting, what crimes the perpetrator(s) were convicted of, or the source(s) for any of the information.
In his description of the second offense, Officer Kang named the perpetrators, their gang affiliation, the circumstances of the offense, and subsequent admissions by one or more perpetrators that they had committed “the crime,” which he did not specify other than describing it as “an attempted murder case, just like this one, . . .” While there is more detail than with the first predicate offense, Officer Kang did not reveal the sources of his information, other than that he personally knew that one of the perpetrators was a gang member.
The testimony of Officer Kang is much closer to the type of expert testimony deemed inadequate in Leland D., supra, 223 Cal.App.3d 251, and In re Nathaniel C., supra, 228 Cal.App.3d 990, than it is to the sufficient testimony described in In re I. M., supra, 125 Cal.App.4th 1195 . “Like a house built on sand, an expert’s opinion is no better than the facts on which it is based.’ [Citation.]” (People v. Gardeley, supra,14 Cal.4th at p. 618.) Officer Kang did not identify the sources of his information or their reliability on the key questions here. Thus, his testimony that HNS is a criminal street gang does not rise to the level of substantial evidence. We must reverse the true finding of the gang enhancement finding under section 186.22.
2. The Court Did Not Err In Refusing To Bifurcate The Gang Enhancement Allegation
Defendant argues the trial court abused its discretion in refusing to bifurcate the gang enhancement allegations from the trial of the underlying crimes. We disagree.
Before trial, defendant moved to bifurcate the gang enhancement allegations, to which the People filed an opposition. The trial court denied the motion because the gang allegations were probative on the issues of defendant’s motive and intent. The court also concluded that the prejudicial impact of the evidence was minimal because the evidence also was being admitted in connection with the underlying offenses.
In People v. Hernandez (2004) 33 Cal.4th 1040, 1046, 1051, our Supreme Court determined that the trial court did not abuse its discretion in denying defendant’s motion to bifurcate the gang enhancement charges from the underlying charges of robbery. The court noted that a trial court has the discretion to bifurcate certain issues such as prior convictions from the determination of the defendant’s guilt of the charged offense. (Id. at p. 1048.) The Hernandez court, however, distinguished the prior conviction--which relates to the defendant’s status and is often not connected to the instant crime--from the criminal street gang enhancement allegations--which is, by definition, inextricably linked to the defendant’s crime. (Ibid.) On this latter point, the Hernandez court explained: “Evidence of the defendant’s gang affiliation--including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like--can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (Id. at p. 1049.) Bifurcation is thus warranted only when the other evidence of the predicate acts required to establish the gang enhancement is unduly prejudicial, or when gang evidence about the defendant is “so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt.” (Ibid.)
Drawing from cases discussing the standard for severance of charged offenses, the Hernandez court stated, “when the evidence sought to be severed relates to a charged offense, the ‘burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. [Citations.] When the offenses are joined for trial the defendant’s guilt of all the offenses is at issue and the problem of confusing the jury with collateral matters does not arise. The other-crimes evidence does not relate to [an] offense for which the defendant may have escaped punishment. That the evidence would otherwise be inadmissible may be considered as a factor suggesting possible prejudice, but countervailing considerations that are not present when evidence of uncharged offenses is offered must be weighed in ruling on a severance motion. The burden is on the defendant therefore to persuade the court that these countervailing considerations are outweighed by a substantial danger of undue prejudice.” (People v. Hernandez, supra, 33 Cal.4th at p. 1050.) We review the trial court’s decision under the deferential abuse of discretion standard of review. (Id. at pp. 1050-1051.)
Here, we detect no abuse of discretion by the trial court in denying the motion for bifurcation. Defendant’s connection to his gang was relevant to his identity as the shooter and the motive for the crime, since HNS and MOD were engaged in a “war” at the time of the shooting. The gang evidence helped explain an otherwise random exchange of gunfire. It also helped explain why defendant, undertaking a dangerous venture into hostile territory, would pick a fight with an unaccompanied young teenage opponent, who was possibly unarmed and probably inexperienced. The evidence that T.V., upon meeting a fellow gang member at the market, turned around and taunted defendant with a gang gesture, lent support to defendant’s claim that he did not fire the first shots, a defense buttressed by defendant’s testimony that he was no longer a gang member and that he was simply driving his stepdaughter to his sister’s residence on the day T.V. shot at him. The gang evidence put the event in perspective, and decreased the risk to all parties that the jurors would speculate about extraneous matters having little or no connection to the facts of the case. Under these circumstances, the gang evidence admitted about defendant was relevant to his guilt and not unduly prejudicial.
In addition, the evidence of the other predicate crimes was so brief and short of details that its inflammatory potential was never kindled. The chances of jury confusion were also minimal, since the evidence was offered to prove the charged gang enhancements, which were distinct from the substantive offenses. Finally, defendant’s lack of involvement with the predicate crimes negated any possibility that the jury could believe that defendant should be punished for those acts. The court did not abuse its discretion by denying the motion to bifurcate.
3. Substantial Evidence Supports the Attempted Murder Convictions
Defendant contends the manner in which the shootings occurred “does not show beyond a reasonable doubt that defendant acted with malice and intent to kill. Although the record supports a conviction for assault with a firearm, or attempted manslaughter, it does not support a conviction for attempted murder. The conviction must be reversed.”
Defendant is mistaken. “[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although again, where motive is shown, such evidence will usually be probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive--the very act of firing a weapon ‘“in a manner that could have inflicted a mortal wound had the bullet been on target”’ is sufficient to support an inference of intent to kill. [Citation.] Where attempted murder is the charged crime because the victim has survived the shooting, this principle takes on added significance. Finally, even if the shooting was not premeditated, with the shooter merely perceiving the victim as ‘a momentary obstacle or annoyance,’ the shooter’s purposeful ‘use of a lethal weapon with lethal force’ against the victim, if otherwise legally unexcused, will itself give rise to an inference of intent to kill. [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 742 (Smith).) In Smith, the Supreme Court held the inference was appropriate where the defendant fired a single shot into an occupied vehicle from approximately one car-length behind it. Smith undermines defendant’s assertion that “the shooting here was not at such close range that a jury could reasonably infer an intent to kill.” Here, the jury rejected defendant’s claim of self-defense, and inferably accepted T.V.’s account of the shootings, from which it easily could infer malice and an intent to kill. Defendant drove into enemy gang territory with a loaded weapon, picked out someone who seemed to be an easy target, asked about his gang membership, hovered in the vicinity until a gang signal was given, then quickly drove in for the kill, firing multiple rounds at T.V. and Her from close range while remaining partially shielded in his car. It was only in response to counter-fire that defendant ceased firing. Using the applicable standard of review (In re Ryan D., supra, 100 Cal.App.4th at p. 859), the evidence was sufficient.
DISPOSITION
The gang enhancement findings are stricken due to lack of evidence and defendant’s sentence is modified to delete both the stayed and unstayed 10-year terms therefor. The judgment is otherwise affirmed. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a new abstract of judgment.
We concur: BLEASE, Acting P.J., ROBIE, J.