Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F06292.
NICHOLSON, Acting P. J.
This case presents yet another example of gang violence and senselessly inflicted harm. The victim was shot and severely pistol whipped about his right eye, causing multiple fractures of the bones above and around the eye, injuring the optic nerve, and destroying vision in the eye.
A jury convicted defendant Cassell Meadors of attempted murder (Pen. Code, §§ 187, subd. (a), 664) and found true allegations that he committed the crime for the benefit of, at the direction of, or in association with the Crips criminal street gang (§ 186.22, subd. (b)(1)); he intentionally and personally used a firearm (§ 12022.53, subd. (b)); and a principal intentionally and personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (e)(1)). The prosecution dismissed two other firearm allegations following jury deadlock and declaration of a mistrial. Defendant was sentenced to state prison for the upper term of nine years for attempted murder plus a consecutive indeterminate term of 25 years to life for discharge of a firearm. The firearm use and gang enhancements were stayed pursuant to section 654.
Further statutory references are to the Penal Code unless otherwise indicated.
A separate jury convicted codefendants Matthew Jones and Joshua Nickerson of all counts and allegations brought against defendant plus additional counts and allegations. Neither codefendant is a party to this appeal.
The recent amendments to section 4019 do not operate to modify defendant’s entitlement to credit, as he was convicted in this case of violent and serious felonies. (§§ 1192.7, subds. (c)(8), (9), 667.5, subd. (c)(12), 4019, subds. (b), (c); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.)
On appeal, defendant contends the evidence was insufficient to support the allegations that (1) the firearm discharge caused great bodily injury, and (2) the crime was committed for the benefit of, at the direction of, or in association with the Crips gang. We affirm the judgment.
FACTS
Prosecution Case-in-Chief
In July 2008, Alisha Shavers lived in a Sacramento apartment along with her sister and their children. At the time, the apartment complex was “pretty infested” with members of the Crips gang. Shavers knew two young men, codefendants Jones and Nickerson, who were known to be Crips gang members.
That same month, Mauryea Allen moved from Oakland to Sacramento, became romantically involved with Shavers, and moved into her apartment.
Attack on Mauryea Allen
On the evening of July 25, 2008, Allen and Shavers were at home. Shavers’s cousin, Felisha Thomas, and her friend, Melissa Brown, were visiting. Jones and Nickerson knocked on the door and were admitted into the apartment. They were accompanied by a third man whom no one knew. Allen identified this man in court as defendant.
Allen’s conversation with the visiting trio of men quickly became heated. According to Allen, the trio started talking about guns. Allen objected, telling them that they were being disrespectful. Allen, who was not affiliated with any gang, addressed one of the men as “Blood, ” which happened to be the name of the Crips’s rival gang. This angered Jones. One of the men told Allen, “Don’t be disrespecting my set [i.e., subset of the Crips gang] like that.” Allen further angered the men by using the word “cuz, ” a form of address that Crips use to show their gang affiliation.
At some point Allen had the men step outside where the argument continued. The three visitors began posturing with their hands in their waistbands as if they were reaching for guns. Defendant warned Allen that defendant considered Jones his “little brother” and that Allen should not talk to Jones as he had done. Defendant told Allen that he “was going to bust [Allen] and shoot up the house.” The trio talked about their affiliation with the Crips or the “Crip Mob” and displayed gang signs. Allen knew that the trio was trying to create fear and let him know that, “if anything, they was gonna ride all together.”
Outside, defendant brandished a handgun. Allen told him, “Man, I’m from Oakland. I see this all the time.... [¶] So you ain’t scaring me right now.” Defendant answered, “I’ll bust you right now.” Allen responded, “If that’s what you feel like you want to do, go ahead. Just let me tell you, I got a kid to live for. You feel me?” The trio arranged themselves in a half-circle around Allen and continued to try to intimidate him.
Suddenly, Allen received an “overhand swing” to his face from “the blind side, ” which felt “almost like a punch.” He “went blank on one side” and could no longer see out of his right eye. He believed he had been struck with a gun, not a fist, and that Jones had inflicted the blow. Someone was trying to take Allen to the ground, but he began wrestling with Jones. Allen got Jones in a headlock, but the others struck Allen’s head and punched his body. It felt like a heavy object was being used. Allen heard voices say, “Get that mother fucker, man. Get him, get him down.”
Finally, Allen heard a gunshot and dropped to his hands and knees. Defendant had shot him in the shoulder. Nickerson told Allen, “I tried to tell you.”
Allen saw the trio walk away “like a pack.” Allen struggled onto his feet and back to his apartment. Shavers and her guests telephoned 911. A responding police officer found Allen on his hands and knees, covered in blood, with what appeared to be a gunshot wound to the head. Allen was moaning in pain.
Medical evidence
Allen was taken to a medical center where he was examined by a trauma surgeon, a head and neck surgeon, and an ophthalmologist. Allen suffered multiple fractures of the bones above and around his right eye. His optic nerve was injured. He permanently lost vision in his right eye. He also had injuries to the soft tissue around his eye and to his frontal sinus. The latter injury required two to three hours of surgery.
The head and neck surgeon thought the injury to Allen’s face and eye was consistent with an application of blunt force such as being pistol whipped. However, he could not rule out a gunshot wound.
The trauma surgeon observed a scratch mark on Allen’s upper shoulder and two “penetrating wounds” that were “consistent with gunshot wounds to the shoulder.” X-rays revealed metal fragments or a foreign body near Allen’s shoulder blade on the acromion. Nothing was removed. Removing a foreign body can often cause more damage than leaving it in place.
Investigation
Detective Robert Quinn, a member of the Sacramento Police Department’s gang suppression unit, was notified of the shooting and recognized the gang monikers for Jones and Nickerson. He prepared arrays that contained their photographs. Then he interviewed Allen at the hospital. At the end of the interview, Allen identified Jones and Nickerson from the photographic arrays. Shortly thereafter, he identified defendant from an array.
A recording of Detective Quinn’s interview with Allen was played for the jury.
That same day, Detective Quinn interviewed Shavers who identified all three coparticipants from the photographic arrays. Shavers reported to Quinn that she had an encounter with Nickerson following the incident in which Allen had been injured. Nickerson claimed Allen had been struck by the gun itself and not by a discharged bullet.
Neighbors and friends informed Shavers that defendant, Jones and Nickerson had threatened her house and her children if she “snitched.” Shavers was “scared” and was making arrangements to move to a safer location.
Shavers’s cousin, Felisha Thomas, told Detective Quinn that Jones started the argument with Allen. Thomas identified all three assailants from the photographic arrays.
Detective Quinn obtained arrest warrants for the three assailants. Defendant was arrested the following day. Detectives Quinn and Brian Bell interviewed him that afternoon. After much discussion, defendant admitted that he had a gun during the incident. However, he claimed he handed the gun off to one of the others and did not use it. Later, defendant said he thought it was Jones who had pistol-whipped Allen. Defendant said he saw Jones “goin’ upside [Allen’s] head with it.” Defendant said Nickerson had the gun when they ran.
Defendant told the detectives that Jones and Nickerson were Crips. Nickerson was from the south area (24th Street Crips) and Jones was from the North Highlands TNA Crips. Defendant’s gang subset, Monk Mob, was “cool” with North Highlands.
After the interview, defendant spoke to his mother on a jail telephone. He said, “They know I was there. [¶]... [¶] Somebody snitched on me.”
Jones and Nickerson were arrested nine days later.
Gang Evidence
Detective Quinn, who had special expertise in Black street gangs, testified as an expert on gang culture and gang-related crime. He explained that the Crips gang, which originated in Los Angeles, now has several large groups in Sacramento. Within the Crips “umbrella” there are several “sets” or “subsets, ” including the North Highland Gangster Crips (NHGC) and the Garden Block Crips. Within NHGC, there is a subset called Tearing Niggers Apart (TNA). The 29th Street and 24th Street Crips are subsets of the Garden Block Crips.
The gang Monk Mob originated in North Highlands and was formed by men from the Bay Area who did not want to be Bloods or Crips. Eventually, the Monk Mob became a subset of the NHGC.
All members of the various subsets owe primary allegiance to the Crips. The Crips in Sacramento are tightly aligned because they are outnumbered three-to-one by their primary rival, the Bloods.
Defendant was an admitted member of Monk Mob. Nickerson was an admitted member of the 29th Street Crips. Jones was an admitted member of the TNA subset of the NHGC. Jones had the letters “NH” tattooed on his chest and the letters “TNA” tattooed on his stomach. In addition, all three men had been validated as Crips gang members by law enforcement using standard criteria.
Crips identify with the color blue. They use the letter “C” to identify themselves. To identify themselves by hand, gang members use their thumb and forefinger to form a “C.” Crips have a practice of replacing the letter combination “ck” in words with the combination “cc, ” because “ck” could mean “Crip killer.” Crips use the word “cuz” as a form of address to show their gang affiliation.
Detective Quinn opined that the “primary activities” of the Crips in Sacramento are murder, attempted murder, assault with a deadly weapon, robbery, automobile theft, burglary, and narcotics sales. These crimes are the “main focus” of what the gang members do. To facilitate getting away with these crimes, gang members use intimidation and fear of retaliation to dissuade victims from talking to law enforcement. Acts of violence benefit the gang by creating this fear and intimidation. The fear and intimidation, in turn, is perceived as somehow producing “respect” for the gang, although this is not how “respect” is understood in civilian culture.
The possession and display of guns is an “integral” part of gang culture. Gang members want to be armed in case there is a confrontation with rivals and a fight breaks out. To be without a gun in this situation is to be “caught slippin’.”
Gang members risk losing the respect of their fellow gang members if they do not respond when the gang or a gang member is treated with perceived disrespect. Thus, any argument can escalate into a gun battle.
Detective Quinn testified about two specific gang-related crimes that Crips had committed in recent years to benefit the gang.
When asked a hypothetical question based on the facts of this case, Detective Quinn opined that the crimes were committed for the benefit of the gang. He explained: “The argument started over sets, whether it be Blood or Crip. When you say Blood to a Crip gang member, they take offense to that. Whether you are a Blood or not, if you use Blood to the Crip gang member, they’re going to take offense to that, that’s disrespect. And the argument ensues over the Crip set that we’re discussing here. [¶] Argument goes back outside, you hear more with Crip and cuz, and the gang is getting its respect, it’s [sic] notoriety out of that. It’s not about who I am. It’s about what gang I’m from. And then to use violence right after that, whether it be hitting him with a blunt object, be a gun or fist, or kicking them, or shooting him, that violence is ensued from that disrespect.”
Defense
The defense did not present any witnesses. Counsel argued that there was reasonable doubt whether defendant was the shooter, that it was doubtful Allen had been shot, and that there was no gang motive because Allen had apologized.
Jones called former forensic pathologist Curtis Rollins. Dr. Rollins testified that the wounds to Allen’s shoulder did not look to him like gunshot entrance or exit wounds. However, he testified that one wound, including an apparent hole in the skin, was “most consistent with a gunshot wound.”
DISCUSSION
I
Defendant contends the section 12022.53, subdivision (e), sentencing enhancement is not supported by sufficient evidence. Specifically, he claims evidence of a “superficial” gunshot wound, with no evidence of pain, treatment, or lingering effects, is insufficient to support the finding of great bodily injury. We disagree.
“On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶] While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the jury. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)
Section 12022.53 provides sentencing enhancements for the use of a firearm during certain felonies. The statute states in part: “(d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), ... personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” (Italics added.) One of the felonies specified in subdivision (a) is attempted murder. (§ 12022.53, subd. (a)(1), (18).) The statute further provides: “(e)(1) The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).”
Section 12022.7, subdivision (f), provides that “‘great bodily injury’ means a significant or substantial physical injury.” The jury was instructed that “[g]reat bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” (CALCRIM No. 1402.)
We first note several difficulties with defendant’s interpretation of the evidence. In his opening brief, defendant claims “every doctor who looked at the possible gunshot wound considered it to be minor.” But as the Attorney General notes, neither of defendant’s citations directs us to any evidence or testimony that the wound was minor.
Thus taken to task, defendant makes a different argument in his reply brief. There he claims “every physician who looked at the wound described it as ‘superficial, ’ which is the opposite of ‘significant or substantial.” This time there is no supporting citation, evidently because the word “superficial” means “of, relating to, or located near a surface, ” not insignificant or insubstantial. (Merriam Webster’s Collegiate Dict. (11th ed. 2006) p. 1253.) Thus, a “superficial” wound may be both significant and substantial.
Defendant boldly asserts, sans citation to the record, the gunshot injury “resulted in no pain.” The claim disregards the responding officer’s testimony that Allen was “moaning” and “in obvious pain.”
Similarly, defendant’s claim that the gunshot “caused no damage” overlooks the evidence that Allen received, and retained, metal fragments or a foreign body in his shoulder. (Cf. People v. Wolcott (1983) 34 Cal.3d 92, 107-108 [where bullet fragments remain in body, injury is not “short-lived” or “transitory”].) None of defendant’s authorities impose any consequence on the jury’s great bodily injury conclusion. (E.g., People v. Martinez (1985) 171 Cal.App.3d 727, 735-736 [reversing a section 12022.7 finding where no permanent injury was shown].)
“In People v. Escobar (1992) 3 Cal.4th 740..., our Supreme Court held that under section 12022.7 a ‘significant or substantial physical injury’ need not meet any particular standard for severity or duration, but need only be ‘a substantial injury beyond that inherent in the offense itself[.]’ [Citation.]” (People v. Le (2006) 137 Cal.App.4th 54, 59, italics omitted.)
Violent intrusion of metal fragments or a foreign body in Allen’s shoulder were not inherent in the offense of attempted murder, which requires no physical contact of any sort. Contrary to defendant’s argument, the permanently lodged bullet fragment(s) was a “lingering effect[]” of the gunshot. Nothing in a great bodily injury allegation requires anything beyond it.
In sum, the jury’s true finding on the great bodily injury enhancement is supported by substantial evidence. Even if the evidence could be reconciled with a contrary finding, reversal of the judgment would not be required. (Peoplev.Ceja (1993) 4 Cal.4th 1134, 1139; Peoplev.Bunyard (1988) 45 Cal.3d 1189, 1213.)
II
Defendant contends there was not sufficient evidence to support the jury’s finding that the attempted murder was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members. This finding resulted in a 10-year enhancement that was stayed pursuant to section 654. The contention has no merit.
Section 186.22 outlaws knowing and active participation in a criminal street gang (§ 186.22, subd. (a)) and provides sentencing enhancements for felony convictions where the offense was “committed for the benefit of, at the direction of, or in association with any criminal street gang” (§ 186.22, subd. (b)(1).)
Section 186.22 defines “criminal street gang” as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f); People v. Sengpadychith (2001) 26 Cal.4th 316, 319-320; People v. Gardeley (1996) 14 Cal.4th 605, 615-617.)
The term “pattern of criminal gang activity” is defined as “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons: [33 offenses are then identified].” (§ 186.22, subd. (e).)
Defendant claims there was insufficient evidence (1) that the crime was committed for the benefit of, at the direction of, or in association with a gang; (2) that he had the specific intent to further criminal conduct by gang members; (3) of the gang’s primary activities; and (4) of the two predicate offenses. We consider these points in turn.
Evidence That the Crime was Committed for the Benefit of, or in Association with, a Gang
Defendant complains that Detective Quinn never testified that the fight benefited the Crips or explained how it would do so. We disagree.
Detective Quinn explained: “The argument started over sets, whether it be Blood or Crip. When you say Blood to a Crip gang member, they take offense to that. Whether you are a Blood or not, if you use Blood to the Crip gang member, they’re going to take offense to that, that’s disrespect. And the argument ensues over the Crip set that we’re discussing here. [¶] Argument goes back outside, you hear more with Crip and cuz, and the gang is getting its respect, it’s [sic] notoriety out of that. It’s not about who I am. It’s about what gang I’m from. And then to use violence right after that, whether it be hitting him with a blunt object, be a gun or fist, or kicking them, or shooting him, that violence is ensued from that disrespect.”
Reasonable jurors could deduce from this testimony that the attempted murder benefited the Crips gang by avenging Allen’s perceived disrespect toward three members of that gang. Even if the purpose of the violence was not announced to bystanders, it surely was made known to Allen and his companions who might reasonably have been dissuaded from further acts of perceived disrespect. Moreover, the violence may have dissuaded them from speaking with law enforcement about further criminal acts by the gang. There was ample evidence that the crime benefited the Crips gang. (See People v. Boyer, supra, 38 Cal.4th at pp. 479-480.)
In any event, section 186.22 does not require evidence that the crime benefited the gang. Rather, it is sufficient that the crime was committed “in association with” the gang. (§ 186.22, subd. (b).) The evidence showed that defendant, Jones, and Nickerson owed their primary allegiance to the same Crips gang, knew each other as fellow gang members, and were involved in the crime from start to finish. The jurors could reasonably infer the requisite association from the very fact that defendant committed the charged crime along with his fellow gang members. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)
Evidence that Defendant Acted with Specific Intent to Promote, Further, or Assist in Criminal Conduct by Gang Members
Defendant argues there was no evidence that he had the specific intent to further criminal conduct by gang members. We disagree.
The gang enhancement applies to “any 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....” (§ 186.22, subd. (b)(1).)
Detective Quinn testified that in the gang culture, any argument can escalate into a gun battle. Violent acts such as gun battles benefit the gang by creating fear and intimidation. The fear and intimidation, in turn, facilitate getting away with crimes such as murder, attempted murder, assault with a deadly weapon, robbery, automobile theft, burglary, and narcotics sales, which are the primary activities of the gang.
Here, a one-sided “gun battle” resulted from perceived slights that would have drawn scant response, if any, from anyone outside of the gang culture. Reasonable jurors could deduce from Detective Quinn’s testimony that defendant and his coparticipants responded in extreme fashion, not because the slights were intrinsically offensive (they were not), but because failing to respond to such trivialities might hinder the gang in its future primary activities. Indeed, no other plausible reason for them to have reacted as they did was shown. Thus, the jurors could deduce that defendant had the specific intent to assist the gang in those future activities. (People v. Vazquez (2009) 178 Cal.App.4th 347, 354-355.)
In two cases, the Ninth Circuit held that the specific intent requirement of section 186.22, subdivision (b) is not satisfied by evidence of a defendant’s gang membership alone, and instead requires some evidence, aside from a gang expert’s “generic testimony, ” that supports an inference that the defendant committed the crime “‘with the specific intent to facilitate other criminal conduct by the [gang].’” (Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, 1079 (Briceno), quoting Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103 (Garcia), italics added; but see People v. Vazquez, supra, 178 Cal.App.4th at p. 353 [rejecting the Briceno/Garcia analysis].)
The Ninth Circuit has since certified to the California Supreme Court the question whether its interpretation of section 186.22 is correct. (Emery v. Clark (9th Cir. 2010) 604 F.3d 1102.)
As we next explain, defendant faults Detective Quinn’s testimony for being “unreliable, laundered hearsay, ” but he does not fault it for being unduly “generic” within the meaning of the Ninth Circuit cases. We thus have no occasion to consider these cases further or whether Detective Quinn’s testimony was insufficient under them.
Reliability of Detective Quinn’s Testimony
Two elements of the gang enhancement -- that the Crips’s primary activities include the commission of enumerated offenses (§ 186.22, subd. (f)), and that the Crips engage in a “‘pattern of criminal gang activity’” (§ 186.22, subds. (e) & (f)) -- may be proved by expert testimony. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1332.)
Defendant claims Detective Quinn’s testimony was insufficient because there was no basis for the jury to determine whether it was reliable, and because Quinn was only “a conduit for presenting hearsay to the jury.”
However, it is settled that an expert may give opinion testimony based on hearsay. (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1426; People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.) In any event, Detective Quinn did not simply repeat out-of-court statements. Rather, he relied on his experience, his review of police reports, his direct contact with gang members, and other detectives for the basis of his opinion about the gang’s primary activities and the predicate offenses. This is the type of information commonly and reasonably relied on by law enforcement officers when studying and developing expertise on gangs. (See People v. Gardeley, supra, 14 Cal.4th at pp. 611-612.)
Detective Quinn’s stated reliance on those sources distinguishes this case from In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander), on which defendant relies. In Alexander, when the expert was asked about the gang’s primary activities, he responded, “‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’ No further questions were asked about the gang’s primary activities on direct or redirect examination.” (Id. at p. 611.) The expert did not testify that these crimes were the gang’s primary activities and he did not explain how he had obtained his information. (Id. at pp. 611-612.) As for the pattern of gang activities, the expert simply testified that he “knew” of two crimes committed by gang members. (Id. at pp. 612-613.) Defendant’s reliance on Alexander is misplaced.
Defendant claims Detective Quinn’s evidence was not reliable because he “relied on police reports, including witness statements, of the predicate offenses but did not identify who the witnesses were, whether they had personal knowledge of the events, or whether they were rival gang members who might have had a reason to fabricate or slant the evidence.” However, Detective Quinn testified and was available for cross-examination on all of these points. The absence of cross-examination does not mean that his testimony was somehow inadequate. The evidence was sufficiently reliable to enable rational jurors to conclude that the gang enhancement was true beyond a reasonable doubt. The enhancement is supported by substantial evidence. (People v. Boyer, supra, 38 Cal.4th at pp. 479-480.)
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., ROBIE, J.