Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 05NF3334, M. Marc Kelly, Judge. Affirmed.
Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
An information charged David Gino Molina (Appellant) with one count each of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), possession of a firearm by a felon (id., § 12021, subd. (a)(1)), and street terrorism (id., § 186.22, subd. (a)). The jury convicted Appellant of possession of a firearm by a felon and found true the gang enhancement alleged under section 186.22, subdivision (b)(1). The trial court declared a mistrial on the robbery and street terrorism counts after the jury deadlocked on them. The trial court sentenced Appellant to a term of 13 years in prison.
We affirm. In response to Appellant’s contentions, we conclude:
1. Inculpatory testimony by Cesar Molina, a purported accomplice, was corroborated by independent evidence linking Appellant to the crime.
To avoid confusion, we will refer to Cesar Molina as “Molina” and continue to refer to David Gino Molina as Appellant.
2. Appellant relies on cases holding an extrajudicial statement repudiated by the witness at trial cannot form the sole basis for a conviction. These cases have been expressly or implicitly overruled. Further, in this case, there was evidence apart from Molina’s inculpatory statements which, with those statements, was sufficient to support the conviction.
3. Any error in failing to instruct the jury that Molina was an accomplice to the charge of possession of a firearm by a felon was harmless because his testimony was corroborated.
4. Substantial evidence supported the gang enhancement. The evidence established the criminal street gang component of the gang enhancement, and the jury could draw a reasonable inference from the evidence that Appellant had possession of a gun with the specific intent to promote, further, or assist in criminal conduct by a gang member.
5. Appellant forfeited the claim the gang expert expressed an impermissible opinion on Molina’s veracity because his counsel did not object on that ground at trial. Nonetheless, the objection would have had no merit, and the challenged testimony was admissible.
Facts
We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)
I.
The Robbery
After visiting a friend, Ahmad Atik returned to his apartment on South Brookhurst Street in Anaheim at around 1:50 a.m. on September 3, 2005. He parked his car in the guest parking lot located outside of the apartment complex. As he walked through the gate from the guest parking lot into the apartment complex parking lot, he saw a black Lexus. The car was not running and its headlights were turned off, but its stereo was turned on and the driver’s side door was open. Atik saw a man, whom he later identified as Appellant, standing next to the open, driver’s side door. The man looked at Atik and then got inside the car as Atik walked past.
Atik continued walking, but suddenly realized someone was jogging behind him. As Atik walked up some stairs, he heard someone scream, “what’s up, homes.” Atik looked back and saw a man, whom Atik later identified as Molina, about three to four feet away. Molina pointed a gun at Atik’s face and said: “[G]ive me your wallet. Give me your money.” Atik said he did not have his wallet with him. Molina, who was bald and wore baggy jeans and a baby-blue-colored jersey with a number on it, asked where the wallet was. Atik replied it was in his car. Molina said, “[l]et’s go to your car real quick.” Atik replied, “I don’t have time to play games with you, man,” pulled out his wallet, and gave Molina the money that was inside of it.
Molina took the money and ran in the direction of Appellant’s Lexus. According to Atik, both Molina and Appellant seemed to disappear at the same time. Atik called the police after telling two security guards what had happened.
Anaheim Police Officer Ed Gomez soon arrived at the apartment complex, and Atik provided him descriptions of Appellant, Molina, and the Lexus. Atik described Molina as wearing a blue jersey with a number 3 on it.
In the meantime, Anaheim Police Officer Matt Sutter was dispatched to a bowling alley on South Brookhurst Street in response to a report of a disturbance. A few minutes before being dispatched, Sutter received a police broadcast of a robbery at a nearby apartment complex. The broadcast described the suspect as a male Hispanic, approximately five feet six inches tall, wearing a baby-blue-colored jersey, and described the weapon used as a black handgun. When Sutter arrived at the bowling alley, he saw in the parking lot a man matching the physical description of the robbery suspect. Sutter stopped the patrol car, got out, and spoke with the man about his activity at the bowling alley. The man, later identified as Appellant, said he was waiting to meet a friend whose name was Adrian Aldarama. Sutter noticed at first that Appellant did not seem to remember his friend’s name. Sutter asked Appellant when he was supposed to meet Aldarama, where Aldarama lived, whether Appellant had driven himself to the bowling alley, where he parked, whether he and Aldarama planned to bowl, and how Appellant was going to communicate with Aldarama. Appellant replied he had driven to the bowling alley from La Habra and was parked at a nearby apartment complex.
Sutter asked Appellant why he had parked at an apartment complex instead of the bowling alley. Appellant’s answer made no sense, so Sutter asked to take a look at his car. Appellant agreed. With Appellant in the backseat, Sutter drove his patrol car to the spot where Appellant’s car was parked—in a parking lot just beyond an apartment complex parking structure, about 250 yards from the entrance to the bowling alley. Anaheim Police Sergeant Joseph Faria, who also had responded to the bowling alley dispatch, followed in his patrol car. Gomez joined Sutter and Faria at Appellant’s car.
When the officers arrived, a man was standing near the trunk of Appellant’s car. Sutter stepped out of the patrol car and spoke with the man, who identified himself as Cesar Molina, Appellant’s cousin. Sutter noticed Molina was sweating profusely even though it was a cool night. Sutter looked inside Appellant’s car and saw a baby-blue-colored athletic jersey in the backseat.
During a conversation with Gomez, Appellant said he was in the area to wait for a friend named Adrian Aldarama, who was staying with a friend called “Pirate” at an apartment in the complex. Gomez and Faria walked to the apartment, having obtained the number from Appellant. As Gomez and Faria approached the apartment, they heard a male voice inside. When they knocked on the apartment door and identified themselves as police officers, the apartment became silent. They continued to knock. A few seconds later, a woman came to the door, and Gomez and Faria asked to speak with a man who was inside the apartment. The woman said no man was inside.
Faria subsequently searched Appellant’s car and found a handgun in the wheel well on top of the car’s right front tire. The gun’s chamber was unloaded, but the magazine contained ammunition.
About 4:15 a.m. on September 3, the police contacted Atik and asked him to go to the rear of the apartment complex to make an identification. When Atik arrived, he immediately recognized Appellant’s car as the black car he had seen earlier in the parking lot of his apartment complex. In an in-field lineup, Atik identified Appellant and Molina.
Appellant was later searched and booked. At the police station, Molina told Sutter he associated with the CV3 street gang, though he was never officially “jumped in,” and the CV3 gang members called him “Cez.”
On January 3, 2006, Orange County Deputy Sheriff Seth Tunstall, who screened the inmate mail at the Theo Lacy jail facility, photocopied a letter dated January 1, 2006 from Appellant to Paula Loomis. Part of the letter read, “[m]y name is Wicked . . . from CV3 in LA,” and was signed, “Wicked, . . . David Molina, love and respect.”
II.
Molina’s Testimony
Molina testified Appellant is his cousin. Molina did not know his cousin by any name other than David Molina and had never heard him called by the name “Wicked.” Molina acknowledged CV3 stands for “Compton Varrio 3,” a street gang.
Molina testified that on the night of September 3, 2005, he and Appellant went to a pool hall in La Mirada. At the time he was 17 years old and Appellant was 28 years old. They left the pool hall and drove to Orange County to meet their friend Adrian at the Linbrook bowling alley in Anaheim.
Before going to the bowling alley, Molina and Appellant stopped at about 2:00 a.m. at the apartment complex next to it so Molina could visit a man called “Pirate,” whom he had met at a party one month earlier. Appellant stopped his car at the staircase near Pirate’s apartment and told Molina he was going to go and urinate. Molina got out of the car and went to see if Pirate was home. Molina wore a blue shirt with a number 3 on it, and was armed with a gun in a holster attached to his trousers. He walked up a staircase and knocked on Pirate’s door. Pirate’s wife answered the door and told Molina that Pirate was not home. As Molina walked back down the staircase, he looked to the right and saw a man walking to another staircase. Molina testified: “I jogged towards the guy, pulled out my gun, got near him, turned around, and said, ‘give me your wallet.’” The man replied, “I don’t have a wallet. It’s in my car.” Molina said, “let’s go to your car.”
According to Molina, the man took one step, pulled his wallet out of his back pocket, and gave him the money. Molina took the money and ran, putting the money in his pocket and holstering the gun.
Molina denied ever telling the police that he had been with CV3 gang members during the night of September 3, 2005, that he had associated with the CV3 gang, and that he had the gang moniker “Cez.” Molina testified he had obtained the gun “from the streets” about six months earlier, while Appellant was in prison, and had carried the gun with him since then. Molina claimed the robbery was his own idea, Appellant knew nothing about it, and Appellant was not an “active” member of CV3.
Molina acknowledged that on April 27, 2006 he pleaded guilty to committing robbery and admitted he committed the crime for the benefit of a criminal street gang. He acknowledged he offered this factual basis for his guilty plea: “In Orange County California, on September 3rd, 2005, I, along with David Molina, took property from the person of another using force and fear. David Molina supplied me with the gun I used to instill fear and he acted as both a lookout and getaway driver while waiting for me in his vehicle at the scene. I committed this crime for the benefit of the criminal street gang CV3 knowing David Molina to be an active CV3 member and with the specific intent to promote criminal conduct by gang members.”
At trial, Molina testified the factual basis for his prior guilty plea was not true and asserted he signed the plea form out of fear after his attorney advised him he would receive a 22-year sentence if he went to trial. (Based on his guilty plea, Molina was given no prison time but was sentenced to the California Youth Authority.)
III.
Gang Expert Testimony
Michael Poncedeleon, a Los Angeles County deputy sheriff, testified as an expert on criminal street gangs. Poncedeleon had been a sheriff’s deputy for over 21 years and had been a gang investigator for the previous 11 years. He had been involved in over 1,000 gang investigations and has an expertise in Hispanic gangs. Poncedeleon had conducted investigations in the cities of Norwalk and La Mirada and the unincorporated area of Whittier. As part of his duties, Poncedeleon routinely spoke with gang members on the street and to the victims of and witnesses to gang-related crimes.
Poncedeleon explained a “rat” or “snitch” is a person who cooperates with the police by giving them information on a crime under investigation. A rat or snitch, if revealed, faces consequences ranging from being assaulted to being murdered. A “moniker,” Poncedeleon explained, is a nickname given to a gang member. He explained gang tattoos are distinctive and typically display the gang symbol and the area where the gang member is from, and often display the name of a gang associate who has been killed.
Poncedeleon testified a person can join a Hispanic gang by “jumping in,” “walking in,” or “criming in.” To be “jumped in,” a person must be recruited into the gang, spend time with older gang members, commit crimes with them, and finally undergo a ritualistic beating by other gang members. A person can be “walked in” if he has a family member who is a long-standing gang member with high stature in the gang. A person can be “crimed in” by committing a lot of crimes.
Poncedeleon described Hispanic gangs as operating on fear and intimidation achieved through violent acts. He testified Hispanic gangs “are very big on respect,” and a gang member obtains respect through violence—the more violent the acts the gang member commits, the more respect he will receive from other gang members. Disrespect of a gang or gang members is met with retaliation.
Poncedeleon testified a gang member does not like to commit a crime alone, preferring to operate with others who can serve as backups if something goes wrong. Typically, one gang member will serve as a lookout during commission of the crime. Gang members do not usually commit crimes with nongang members for fear the nongang member will be a snitch. In contrast, a gang member generally trusts another gang member not to cooperate with the police. Poncedeleon had experience with incidents in which two gang members committed a crime, and one of the two, when apprehended, would not identify his cohort to the police.
Poncedeleon testified that guns are very important to criminal street gangs because violence is such a significant part of their culture. Gang members generally know when other gang members have guns. He testified: “They want to know who’s got the gun because they want to know who[m] they can depend on if they get into a situation where a backup person is needed. They don’t want to go into an area or do something and not be armed or ready for whatever may confront them.”
Poncedeleon defined a criminal street gang as “three or more persons with a common sign or symbol engaged in criminal activity listed under [Penal Code section] 186.22.” He testified CV3 stood for “Compton Varrio Tres,” a criminal street gang he had been monitoring since 2000. CV3 was initially formed in Compton, and its activities include narcotic sales, witness intimidation, assault, robbery, and murder. The Molina family was the nucleus of CV3, and a branch of the gang was formed in La Mirada after the Molina family moved there. According to Poncedeleon, the La Mirada branch of CV3 had 23 documented active gang members, making it a small gang. Poncedeleon had spoken with about half of those documented gang members. CV3 members boast to each other of their criminal acts, and, due to the gang’s small size, word spreads quickly among its members.
Poncedeleon testified his opinion was Appellant was an active member of CV3 in September 2005. His opinion was based on the following: (1) other CV3 members had told Poncedeleon that Appellant was an active member; (2) in connection with an arrest in 2003, Appellant admitted to Poncedeleon he was an active gang member, and a cell phone found on Appellant had the names of seven gang associates in the phone book; (3) in 2000, Appellant was stopped in an area claimed by CV3 and was found to be in possession of a gun; (4) Appellant had the words “money,” “sex,” and “murder” tattooed on his head, the words “Compton,” “V,” and “3” tattooed on his back, and a tattoo showing he was from Southern California; and (5) Appellant had identified himself as “Wicked,” a gang moniker, in the letter written while he was jail. As to the last point, Poncedeleon testified gang members commonly maintain their gang affiliation and allegiance while in jail and let others know of their affiliation to avoid becoming a victim of jail crime.
Poncedeleon was presented with this hypothetical set of facts:
“The hypothetical begins with two men, ages 17 and 28. So for purposes of this hypothetical, we’ll call them Mr. 17 and Mr. 28. [¶] . . . [¶]
“. . . So Mr. 28 is a known and documented member of the criminal street gang CV3. Mr. 17 associates with Mr. 28 frequently. Late one evening Mr. 28 drives the two of them from Los Angeles County to the area of the Linbrook bowling alley in Anaheim. Mr. 28 stops the car in front of some apartment buildings near the Linbrook bowling alley and Mr. 28 and Mr. 17 get out of the car. Mr. 28 stays near the car, walking a few feet from the driver’s side open door.
“Another man, we’ll call him Mr. Victim, walked by and made eye contact with Mr. 28. Mr. Victim continued walking towards his apartment. As he got to the stairs near his building, he heard someone yell out, ‘hey.’ He turned and was confronted at gunpoint by Mr. 17 who told him to give him his wallet. Mr. Victim said he left his wallet in his car, so Mr. 17 told him to go to his car and get it.
“As they began walking together, Mr. Victim said that he had his wallet, pulled it out, and gave Mr. 17 $51.
“Mr. 17 turns and left moving to the north in the same direction of the parked vehicle where Mr. Victim had seen and made eye contact with Mr. 28[.]
“A couple of hours later, after Mr. 17 and Mr. 28 were detained, Mr. Victim positively identified Mr. 17 as the person with the gun who took his money and Mr. 28 as the person near the car with whom he had made eye contact as he walked past.”
Poncedeleon’s opinion was the robbery in the hypothetical was committed to benefit and promote the CV3 gang by making it better known in the area. Poncedeleon testified Mr. 17 was either trying to become a gang member or was “putting his work in” to show he was worthy of becoming a gang member. Mr. 28 was there both to serve as a lookout and to witness the crime. As a witness, Mr. 28 later could confirm to the gang that Mr. 17 had committed the crime.
Poncedeleon was given the additional hypothetical fact that Mr. 17 said Mr. 8 gave him the gun to use in the robbery. Poncedeleon testified that additional fact further demonstrated Mr. 28 gave Mr. 17 the gun to see whether Mr. 17 was worthy of following through with the robbery.
When given another hypothetical fact that Mr. 17 said Mr. 28 had nothing to do with the crime, Poncedeleon testified that fact supported his opinion the crime was committed to promote CV3. In Poncedeleon’s experience, witnesses of gang-related crimes commonly change their version of events, and he knew of instances in which intimidation caused witnesses to change their story.
On cross-examination, Poncedeleon was asked, “if Mr. 28 didn’t know Mr. 17 was committing a crime, then there’s no crime for the benefit of the gang, correct?” Poncedeleon answered, “[t]hat would be correct.”
Poncedeleon was asked whether it was significant that Molina wore a jersey with a number 3 on it when he committed the robbery. Poncedeleon replied that fact was significant because “number 3 is one of the symbols that CV3 uses to let people know who they are or where they’re from.”
Poncedeleon testified his opinion was Molina was an associate of CV3 who had not been jumped in yet. His opinion was based on the clothing Molina wore during the robbery, his actions, and his admission to Sutter that he associated with CV3 and had the nickname Cez.
Discussion
I.
Molina’s Testimony Was Corroborated.
At trial, Molina acknowledged he offered this factual basis for his guilty plea: “In Orange County California, on September 3rd, 2005, I, along with David Molina, took property from the person of another using force and fear. David Molina supplied me with the gun I used to instill fear and he acted as both a lookout and getaway driver while waiting for me in his vehicle at the scene. I committed this crime for the benefit of the criminal street gang CV3 knowing David Molina to be an active CV3 member and with the specific intent to promote criminal conduct by gang members.”
Appellant argues this factual basis for Molina’s guilty plea was insufficient to support his conviction for possession of a firearm by a felon because Molina was an accomplice and his testimony was not corroborated. The Attorney General argues Molina was not an accomplice because he could not be charged with the identical crime and, in any case, independent evidence corroborated Molina’s testimony. We conclude Molina’s testimony was corroborated.
A. Was Molina an Accomplice to the Crime of Possession of a Firearm by a Felon?
Penal Code section 1111 provides, in relevant part: “A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”
An accomplice is “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (Pen. Code, § 1111.) To be chargeable as an accomplice, the witness must be a principal under Penal Code section 31, which defines principals as “[a]ll persons concerned in the commission of a crime, whether . . . they directly commit the act constituting the offense, or aid and abet in its commission.” An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense. (People v. Avila (2006) 38 Cal.4th 491, 564.)
Whether a witness is an accomplice within the meaning of Penal Code section 1111 is a factual question unless the facts and the inferences drawn from the facts are undisputed. (People v. Avila, supra, 38 Cal.4th at p. 565.) A court may determine as a matter of law whether a witness is an accomplice only when the facts regarding the witness’s culpability are clear and undisputed. (Ibid.)
Appellant was convicted of possession of a firearm by a felon under Penal Code section 12021, subdivision (a)(1). He argues Molina could be liable for the identical offense and could be charged with unlawful possession of the same gun under section 12031, subdivision (a)(2)(C) (gang member in possession of a firearm). The elements of an offense under section 12021, subdivision (a)(1) are conviction of a felony and ownership, possession, custody or control of a firearm. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) Specific criminal intent is not required under section 12021, subdivision (a)(1), and general criminal intent is sufficient to sustain a conviction. (People v. Spirlin (2000) 81 Cal.App.4th 119, 130.) Possession of the firearm may be actual or constructive as long as possession is intentional. (Ibid.)
There was no evidence at trial that Molina was a felon on September 3, 2005. Therefore, he could not be charged directly with possession of a firearm by a felon. Appellant does not argue Molina could have been charged for possession of a firearm by a felon under an aider and abettor theory. Nevertheless, as we explain in the next subpart, if Molina could be charged as an accomplice, his testimony was corroborated.
B. Molina’s Testimony Was Corroborated.
If Molina was an accomplice, then evidence independent of his testimony must link Appellant to the crimes for the jury to rely on the statements made in Molina’s guilty plea. The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, so long as it tends to implicate the defendant by relating to an act that is an element of the crime. (People v. Davis (2005) 36 Cal.4th 510, 543; People v. McDermott (2002) 28 Cal.4th 946, 986.) The corroborating evidence need not corroborate the accomplice as to every fact to which the accomplice testifies (People v. Davis, at p. 543), and need not establish every element of the charged offense (People v. McDermott, at p. 986). The corroborating evidence is sufficient if, without aid from accomplice testimony, it “‘“tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth.”’” (People v. Davis, 36 Cal.4th at p. 543; see People v. Williams (1997) 16 Cal.4th 635, 680-681.)
The corroborating evidence here met that standard. Appellant and Molina both were at the robbery scene. As Atik walked through the gate into his apartment complex at 1:50 a.m., he saw Appellant standing next to a black Lexus in the middle of the complex parking lot. The car stereo was turned on and the driver’s side door was open. Appellant made eye contact with Atik and then got inside the car as Atik walked past. A few moments later, Molina robbed Atik at gunpoint. After the robbery, Atik saw Molina run in the direction of the Lexus, and Atik testified both Molina and Appellant seemed to disappear at the same time.
Later, the gun used to rob Atik was found in the wheel well of Appellant’s black Lexus. A baby-blue-colored jersey like the one worn by Molina during the robbery was found inside the car.
The evidence established Appellant was an active member of the CV3 gang, and Molina was at least an associate gang member. Poncedeleon testified gang members do not like to operate by themselves in committing crimes and commonly use lookouts. Guns are important in criminal street gang culture, and gang members generally know when other gang members have guns. Poncedeleon testified his opinion was the robbery in the hypothetical presented to him was committed for the benefit of CV3, and Mr. 28 served both as a lookout and a witness to the crime so he later could confirm to the gang that Mr. 17 had committed the crime.
The evidence tended to implicate Appellant by relating directly to his constructive possession of the gun, and showed that Appellant and Molina worked together to commit the robbery for the benefit of CV3. Appellant served as a lookout and witness, and through Molina, exercised control over the gun. Based on the corroborating independent evidence, the jury reasonably could infer Appellant exercised at least constructive possession of the gun.
II.
Substantial Evidence Supported Appellant’s Conviction for Possession of a Firearm by a Felon.
Appellant argues substantial evidence did not support the conviction for possession of a firearm by a felon, even if Molina was not an accomplice under Penal Code section 1111. Relying on In re Miguel L. (1982) 32 Cal.3d 100, 108 (Miguel L.), Appellant argues Molina’s inculpating statements made in the plea agreement cannot form the basis for the conviction because Molina repudiated those statements at trial, and without those statements, substantial evidence did not support his conviction.
The court in Miguel L., supra, 32 Cal.3d at pages 105-106 held an extrajudicial statement repudiated by the witness at trial cannot form the sole basis for an adjudication of wardship over a minor in the absence of other evidence connecting the minor with the crime. In Miguel L., a minor named Arnaldo G. was arrested and, during a subsequent police interview, admitted involvement in a burglary and identified the minor Miguel L. as an accomplice. (Id. at p. 102.) At Miguel L.’s jurisdictional hearing, Arnaldo repudiated his statements made during the police interview. (Id. at pp. 103-104.) The juvenile court nonetheless sustained a petition against Miguel L. and adjudicated him a ward of the court based on Arnaldo’s inculpating statements made in the police interview. (Id. at p. 104.)
The California Supreme Court reversed. It concluded Arnaldo’s prior unsworn statements made in the police interview were insufficient as a matter of law to sustain the petition because Arnaldo repudiated those statements at the jurisdictional hearing and no other evidence connected Miguel L. to the burglary. (Miguel L., supra, 32 Cal.3d at pp. 107, 109-110.) Arnaldo’s inculpating statements “lack[ed] the traditional indicia of reliability possessed by sworn testimony,” and were suspect because Arnaldo was an admitted accomplice. (Id. at pp. 107-108.)
The court in Miguel L. reached its decision in reliance on People v. Gould (1960) 54 Cal.2d 621 (Gould). There, two defendants were convicted of burglarizing an apartment. (Id. at pp. 624-625.) The only evidence linking one defendant, named Andrew Peter Marudas, to the crime was the victim’s photographic identification of him as one of the burglars. (Id. at pp. 625, 631.) At trial, the victim could not confirm the identification. (Id. at p. 625.) The California Supreme Court reversed Marudas’s conviction, holding “[a]n extrajudicial identification that cannot be confirmed by an identification at the trial is insufficient to sustain a conviction in the absence of other evidence tending to connect the defendant with the crime.” (Id. at p. 631.)
In People v. Montiel (1993) 5 Cal.4th 877, 929, the court, citing Gould and Miguel L., stated: “Generally, an extrajudicial statement repudiated at trial cannot form the sole basis for a conviction. [Citations.] The concern is that ‘where “no evidence” incriminates the accused save a single witness’s extrajudicial statement repudiated under oath, the extrajudicial statement lacks the “traditional indicia of reliability” which attach to an accusation made under oath and subject to cross-examination in a formal judicial proceeding.’” The court in Montiel extended the Gould/Miguel L. rule to conclude extrajudicial statements repudiated under oath are legally insufficient to establish aggravating violent criminal conduct. (People v. Montiel, supra, 5 Cal.4th at p. 929.)
Appellant argues Molina’s extrajudicial statements made in his plea form likewise are insufficient to support his conviction because Molina repudiated those statements at trial. But, as the Attorney General points out, Miguel L. and People v. Montiel are of questionable authority because the California Supreme Court expressly overruled Gould in People v. Cuevas (1995) 12 Cal.4th 252, 277. In People v. Cuevas, the court rejected the rule that an out-of-court identification must be corroborated by other evidence tending to connect the defendant to the crime, and held “the sufficiency of an out-of-court identification to support a conviction should be judged by the substantial evidence standard.” (Ibid.)
Appellant’s conviction for possession of a firearm by a felon was supported by more than Molina’s extrajudicial statements made in the plea form. Here, unlike Miguel L. and Gould, there was independent evidence connecting Appellant with the crime. Together, Molina’s inculpatory statements made in the plea form and the corroborating evidence constitute substantial evidence supporting Appellant’s conviction for possession of a firearm by a felon.
III.
Any Error in Omitting Accomplice Instructions Relating to Possession of a Firearm by a Felon Was Harmless.
Appellant argues the trial court erred by failing to instruct the jury that Molina was or could be an accomplice to the charge of possession of a firearm by a felon. Alternatively, Appellant argues he received ineffective assistance of counsel to the extent defense counsel forfeited his claim of instructional error by not requesting an accomplice instruction or objecting to the trial court’s failure to give one.
The trial court instructed the jury with CALJIC Nos. 3.11 (testimony of accomplice must be corroborated), 3.12 (sufficiency of evidence to corroborate an accomplice), 3.14 (criminal intent necessary to make one an accomplice), and 3.18 (testimony of accomplice to be viewed with caution). Appellant’s trial counsel objected to giving any accomplice instructions. Over that objection, the trial court used a modified CALJIC No. 3.16 to specifically instruct the jury that Molina was an accomplice as a matter of law to the charge of robbery only. The court did not instruct the jury that Molina was or could be an accomplice to the charge of possession of a firearm by a felon.
We need not resolve whether the trial court committed instructional error because the omission of accomplice instructions is harmless when there is sufficient evidence corroborating the witness’s testimony. (People v. Frye (1998) 18 Cal.4th 894, 966; People v. Arias (1996) 13 Cal.4th 92, 143.) As explained in subpart I.B., there was ample evidence connecting Appellant to all of the crimes charged to establish corroboration. In light of the corroborating evidence, any error in failing to instruct the jury that Molina was or could be an accomplice to the charge of possession of a firearm by a felon was harmless. For the same reason, Appellant suffered no prejudice as a result of any purported ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Mayfield (1997) 14 Cal.4th 668, 784.)
IV.
Substantial Evidence Supported the Gang Enhancement.
Appellant argues Poncedeleon’s testimony was insufficient to support the jury’s true finding on the gang enhancement allegation under subdivision (b)(1) of Penal Code section 186.22. Specifically, Appellant contends (1) Poncedeleon’s testimony failed to establish CV3’s primary activities consisted of criminal acts listed in section 186.22, and (2) the evidence was insufficient to establish Appellant was a felon in possession of a firearm with the specific intent to promote, further, or assist in any criminal conduct by gang members. We conclude sufficient evidence supported the gang enhancement.
A. Substantial Evidence Supported the Criminal Street Gang Component of the Gang Enhancement.
Penal Code section 186.22, subdivision (b)(1) imposes a sentence enhancement for “[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang” (Pen. Code, § 186.22, subd. (a)). The substantial evidence standard of review applies to section 186.22 gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
Penal Code section 186.22, subdivision (f) 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, . . . of [section 186.22,] 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.” The criminal acts listed in section 186.22, subdivision (e) include assault, robbery, sale or possession for sale of controlled substances, and witness intimidation.
“Therefore, the ‘criminal street gang’ component of a gang enhancement requires proof of three essential elements: (1) that there be an ‘ongoing’ association involving three or more participants, having a ‘common name or common identifying sign or symbol’; (2) that the group has as one of its ‘primary activities’ the commission of one or more specified crimes; and (3) the group’s members either separately or as a group ‘have engaged in a pattern of criminal gang activity.’” (People v. Vy (2004) 122 Cal.App.4th 1209, 1222.) Appellant challenges the sufficiency of the evidence to support element two—the primary activity element.
“To trigger the gang statute’s sentence-enhancement provision [citation], the trier of fact must find that one of the alleged criminal street gang’s primary activities is the commission of one or more of certain crimes listed in the gang statute.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) Sufficient proof of the gang’s primary activities might be expert testimony that the gang’s primary activity was the commission of the listed crimes. (Id. at pp. 322, 324, citing People v. Gardeley (1996) 14 Cal.4th 605, 611, 620.)
In People v. Gardeley, supra, 14 Cal.4th at page 620, a police detective testified as a gang expert. The defendant admitted he had been a member of the Family Crip gang for nine years. The gang expert expressed his opinion that the primary activity of the Family Crip gang was the sale of narcotics, and that the gang also engaged in witness intimidation. (Ibid.) The expert based his opinion on “conversations with the defendants and with other Family Crip members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies.” (Ibid.) The California Supreme Court concluded the gang expert’s testimony was sufficient proof of the Family Crip gang’s primary activity to support a gang enhancement. (Ibid.)
Poncedeleon’s testimony similarly constituted sufficient proof of CV3’s primary activities. He testified CV3 is a criminal street gang and its primary activities include narcotic sales, witness intimidation, assault, robbery, and murder, all of which are listed in subdivision (e) of Penal Code section 186.22. Poncedeleon testified Louis Molina, an active CV3 gang member, had been convicted of possession of controlled substances for sale, and Eddie Molina, another active CV3 gang member, was convicted in March 2001 of battery on a police officer and possession of controlled substances for sale. Possession of controlled substances and assault, Poncedeleon testified, were primary CV3 activities. Poncedeleon testified the two convictions he identified were examples and there were more criminal convictions of CV3 gang members.
Appellant argues Poncedeleon’s testimony was similar to testimony held insufficient by a panel of this court in In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.). In that case, a juvenile petition alleged the minor committed three counts of vandalism for the benefit of, at the direction of, or in association with a street gang called Varrio Viejo. (Id. at p. 609.) A sheriff’s deputy, testifying as a gang expert, testified generally about the benefits a street gang might derive from graffiti and opined Varrio Viejo was an active street gang at the time of the minor’s arrest. (Id. at p. 611.) The deputy’s testimony about the gang’s primary activities consisted in full of the following: “‘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.’” (Ibid.)
Poncedeleon’s testimony was not in the least similar to that of the sheriff’s deputy in Alexander L. As a panel of this court explained in People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 (Martinez), the gang expert in Alexander L. “never specifically testified about the primary activities of the gang,” but merely stated, “‘he “kn[e]w” that the gang had been involved in certain crimes,’” and “‘did not directly testify that criminal activities constituted [the gang’s] primary activities.’” Contrasting Alexander L., the court in Martinez rejected the defendant’s contention the testimony of the gang expert lacked foundation, stating: “Here, on the other hand, [the gang expert] had both training and experience as a gang expert. He specifically testified as to [the gang]’s primary activity. His eight years dealing with the gang, including investigations and personal conversations with members, and reviews of reports suffices to establish the foundation for his testimony.” (Martinez, supra, 158 Cal.App.4th at p. 1330.)
In this case, like Martinez and unlike Alexander L., Poncedeleon specifically testified to CV3’s primary activities and offered two concrete examples of criminal activity. Poncedeleon, as the expert in Martinez, had extensive experience, including 11 years as a gang investigator. He had been involved in over 1,000 gang investigations, was an expert in Hispanic gangs, and had spoken to many gang members and victims and witnesses of gang-related crimes. Poncedeleon conducted investigations in the cities of Norwalk and La Mirada and the unincorporated area of Whittier. He had been monitoring CV3 since the year 2000, and had spoken with half the documented members of CV3’s La Mirada branch, including Appellant.
Appellant also contends this case is similar to People v. Perez (2004) 118 Cal.App.4th 151. The defendant in that case, a purported member of an Hispanic street gang, was charged with the attempted murder of an Asian male. The prosecution’s gang expert testified the gang had a history of racial hatred and violent acts toward Asians, and the expert had investigated crimes committed by the gang, including an attempted murder six years earlier. (Id. at pp. 157, 160.) The gang expert did not testify to the gang’s primary activities. The court held the expert’s testimony was insufficient to support the primary activity element of the gang enhancement because “[n]o expert testimony such as that provided in People v. Gardeley . . . was elicited here. Even if we assume that the CLB gang was responsible for the shootings of Asians on February 16 and 18, as well as the shooting of [the victim], such evidence of the retaliatory shootings of a few individuals over a period of less than a week, together with a beating six years earlier, was insufficient to establish that ‘the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.’ [Citation.]” (People v. Perez, supra, 118 Cal.App.4th at p. 160.) Here, in contrast, Poncedeleon did testify to CV3’s primary criminal activities, and offered evidence of the prior offenses of Louis Molina and Eddie Molina as examples of those activities. Their crimes were unrelated to each other and were unconnected to offenses charged in this case.
Finally, Appellant contends Poncedeleon’s testimony lacked foundation because, at the time of trial, Poncedeleon had not spoken with a CV3 gang member for about two and a half years. This does not render Poncedeleon’s testimony foundation less, but goes to the testimony’s weight.
Poncedeleon explained he had not spoken with a CV3 gang member for some time because a majority of CV3 gang members were incarcerated, and therefore were engaging in less activity requiring investigation. Gang investigation suppression efforts, Poncedeleon stated, were being directed to larger gangs.
B. Substantial Evidence Supported the Gang Enhancement.
Appellant also contends the true finding on the gang enhancement must be reversed because there was insufficient evidence he committed the crime of being a felon in possession of a firearm for the benefit of, at the direction of, or in association with the CV3 gang with the specific intent to promote, further, or assist in any criminal conduct by CV3 members. We conclude the evidence, viewed in the light most favorable to the prosecution (People v. Vy, supra, 122 Cal.App.4th 1209, 1225), was sufficient to support the gang enhancement.
Under Penal Code section 186.22, subdivision (b)(1), the prosecution must show more than that a gang member committed a crime. The prosecution must prove the crime (in this case, possession of a firearm by a felon) was committed for the benefit of a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by a gang member. (People v. Gardeley, supra, 14 Cal.4th at pp. 616-617.)
We agree with those decisions holding Penal Code section 186.22, subdivision (b) does not require a showing of intent to promote the gang’s activities beyond the crime charged. (People .v Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero (2006) 140 Cal.App.4th 15, 19.) In People v. Hill, the court explained: “There is no requirement in section 186.22, subdivision (b), that the defendant’s intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits. To the contrary, the specific intent required by the statute is ‘to promote, further, or assist in any criminal conduct by gang members.’ [Citation.] Therefore, defendant’s own criminal threat qualified as the gang-related criminal activity. No further evidence on this element was necessary.” (People v. Hill, supra, 142 Cal.App.4th at p. 774.)
In People v. Margarejo (2008) 162 Cal.App.4th 102, the appellate court affirmed a gang enhancement under Penal Code section 186.22, subdivision (b)(1) to the crime of possession of a firearm by a felon. The court explained how the evidence supported the enhancement: “Because Margarejo had been convicted of a felony, it was illegal for him to possess this (or any) gun. Margarejo tried to avoid being caught with the gun in hand. But Margarejo did not throw the gun away. He took it to Little G’s apartment and left it there. Leaving an illegal gun with a fellow gang member connects the gun and the gang. Margarejo apparently took pains to keep the gun within the gang. The jury fairly could infer his goal was to preserve the gun for the gang’s future use. The jury was entitled to conclude this gun was a gang gun—a gun that Margarejo wanted to maintain as available to the Highland Park gang, whatever might happen to Margarejo himself. Some people use guns for hunting and sport, but the evidence suggested that the Highland Park gang used guns to commit gang crimes.” (People v. Margarejo, supra, 162 Cal.App.4th at p. 111.)
Here, it was illegal for Appellant to possess a gun because he had been convicted of a felony. Appellant was a member of CV3, a criminal street gang, and Poncedeleon testified guns are important in gang culture because gang activities rely on violence and intimidation. Other CV3 members would know Appellant had the gun because, as Poncedeleon explained, “they want to know who[m] they can depend on if they get into a situation where a backup person is needed.” From the evidence, a reasonable inference could be drawn that Appellant gave the gun to Molina, who was associated with CV3, in order to commit a crime. As Atik, the victim, walked through the gate into his apartment complex, he saw Appellant standing next to a black Lexus with the driver’s side door open and the stereo playing. Appellant looked at Atik, then stepped inside the car as Atik walked past. After Molina robbed Atik at gunpoint, Atik saw Molina run in the direction of Appellant’s Lexus, and both Molina and Appellant seemed to disappear at the same time. Later, police found the gun in the wheel well of Appellant’s Lexus.
For purposes of our analysis, we see no difference between a gang “member” and a gang “associate.” (Cf. In re Ramon T. (1997) 57 Cal.App.4th 201, 207 [Penal Code section 186.22, subdivision (b) does not require either “‘active’” or “‘current active’” participation in a gang].) A gang “associate,” just as a gang “member,” can participate in the gang and can engage in criminal activity on the gang’s behalf. By giving a gun to an associate who wanted to join the gang, Appellant was assisting “other” criminal conduct by the gang.
“Leaving an illegal gun with a fellow gang member connects the gun and the gang.” (People v. Margarejo, supra, 162 Cal.App.4th at p. 111.) The jury here reasonably could conclude, as in People v. Margarejo, Appellant was keeping the gun for the gang’s use and therefore was in possession of the gun to promote, further, or assist in criminal conduct by a gang member. Also, although the jury deadlocked on the robbery count, it reasonably could have found that Appellant gave the gun to Molina with the specific intent that he use it to engage in some kind of criminal conduct to promote or benefit the CV3 gang.
Appellant relies on In re Frank S. (2006) 141 Cal.App.4th 1192. In that case, the minor told police he carried the knife found concealed on his bicycle for protection from rival gangs. (Id. at p. 1195.) The petition charged the minor with felony possession of a dirk or dagger with a gang enhancement. (Ibid.) At the jurisdiction hearing, a gang expert testified that the minor possessed the knife to protect himself and that a gang member would carry a knife for protection from rival gangs and to assault rival gang members. (Ibid.) The trial court found the count and enhancement true. (Id. at p. 1196.)
The Court of Appeal reversed the gang enhancement on the ground substantial evidence did not support the specific intent element. The court explained: “In the present case, the expert simply informed the judge of her belief of the minor’s intent with possession of the knife, an issue reserved to the trier of fact. She stated the knife benefits the [gang] since ‘it helps provide them protection should they be assaulted by rival gang members.’ However, unlike in other cases, the prosecution presented no evidence other than the expert’s opinion regarding gangs in general and the expert’s improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang . . . .’ ([Pen. Code, ]§ 186.22, subd. (b)(1).) The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor’s statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor’s specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.” (In re Frank S., supra, 141 Cal.App.4th at p. 1199.)
Here, in contrast, there was evidence Appellant gave the gun to Molina, a CV3 associate, who used the gun to commit a robbery. The jury could have drawn the reasonable inference the gun was used by the gang to promote gang activities and Appellant gave the gun to Molina with the intent he use it to commit some crime on the gang’s behalf.
V.
Poncedeleon’s Testimony Explaining Molina’s Implication of Appellant Was Admissible.
Appellant argues the trial court erred by overruling his objection to Poncedeleon’s testimony, on cross-examination, about the reason why Mr. 17 (Molina) implicated Mr. 28 (Appellant) in the robbery. Appellant argues that testimony was inadmissible because it amounted to an opinion that Molina was not testifying truthfully. We conclude (1) Appellant forfeited the claim of error by failing to make that objection at trial, and (2) Poncedeleon’s testimony was admissible.
A. Background
During cross-examination, Poncedeleon confirmed his opinion the robbery in the hypothetical benefitted a street gang. Defense counsel then asked him: “Now, if I were to add to that hypothetical that Mr. 17, when he made that statement, that Mr. 28 gave him a gun and somehow aided and abetted in this crime, he was afraid he was going to get 22 years in prison if he said he didn’t—if he didn’t say that Mr. 28 had anything to do with that crime, would that affect your opinion as to whether or not this statement helps or furthers a criminal street gang?” Poncedeleon replied that it would, but added, “I don’t think . . . the time isn’t as important as the fact that he wouldn’t want to be labeled a snitch.”
Cross-examination continued as follows:
“Q [Defense counsel] Okay. Let me add another wrinkle to that. [¶] Instead of 22 years, that he was afraid he was going to get if he agreed to inculpate Mr. 28 and say that he did this, and say that he gave him the gun, and say that he was a member of the gang, he wouldn’t go to prison at all. He would go to the California Youth Authority for three years. Would that affect your opinion as to whether or not this crime was committed for the benefit of the gang?
“A [Poncedeleon] No, because you got to understand they’re a little smarter than we give them credit for, and he probably knew that he could come into court and recant after he had made a deal.
“[Defense counsel]: I’m going to object as to speculation as to his opinion with regard to what Mr. 17 probably knew.
“The Court: Overruled.”
B. Appellant Forfeited His Claim of Error.
Appellant contends Poncedeleon’s testimony exceeded the scope of expert testimony because it amounted to an opinion on Molina’s veracity. Appellant waived this contention by failing to object on that ground. (Evid. Code, § 353.)
“[T]he objection [must] fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling. If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but [the objecting party] may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial.” (People v. Partida (2005) 37 Cal.4th 428, 435.)
Defense counsel objected to Poncedeleon’s testimony only on the ground of speculation. Counsel did not object on the grounds now asserted on appeal, and never moved to strike the testimony.
C. Poncedeleon Did Not Express an Impermissible Opinion on Witness Credibility.
An expert may not give an opinion on whether a witness is telling the truth or whether the defendant is guilty. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.) In People v. Coffman and Marlow, a psychologist testified she believed a child abuse victim told the truth during an interview. (Ibid.) The California Supreme Court concluded an objection should have been sustained to the testimony. (Ibid.)
Appellant cites People v. Melton (1988) 44 Cal.3d 713 and People v. Sergill (1982) 138 Cal.App.3d 34. The defendant in People v. Melton was convicted of murder. (People v. Melton, supra, 44 Cal.3d at p. 724.) At trial, a defense investigator testified about conversations he had with a witness who had told him a man named Charles rather than the defendant committed the murder. (Id. at p. 742.) On cross-examination, the prosecutor was permitted to question the investigator on his failure to seek assistance from law enforcement in finding Charles. (Id. at pp. 743-744.) The defendant argued those questions were impermissible because they disclosed the investigator’s inadmissible opinion that the witness was not credible. (Id. at p. 744.) The California Supreme Court agreed: “The instant record does not establish that [the investigator] is an expert on judging credibility, or on the truthfulness of persons who provide him with information in the course of investigations. He knew nothing of [the witness]’s reputation for veracity. He was able to describe his interviews with [the witness] in detail, leaving the factfinder free to decide [the witness]’s credibility for itself, based on such factors as his demeanor and motives, his background, his consistent or inconsistent statements on other occasions, and whether his statements to [the investigator] had the essential ‘ring of truth.’ The trial court thus erred insofar as it admitted [the investigator]’s testimony to indicate his assessment of [the witness]’s credibility.” (Id. at pp. 744-745.) The court deemed the error harmless because the prosecutor did not use the investigator’s testimony and there was strong evidence of guilt. (Id. at p. 745.)
In People v. Sergill, supra, 138 Cal.App.3d 34, 37, the defendant was convicted of oral copulation with a child. At trial, defense counsel called two police officers to testify about discrepancies between what the child told them and the child’s trial testimony. (Id. at p. 38.) During cross-examination, the prosecutor was permitted to elicit one officer’s opinion on whether the child was telling the truth. (Ibid.) The officer testified he believed the child was telling the truth and explained the basis for that belief. (Ibid.) The second officer also was permitted to testify that the child had told the truth and that the officer had “arrive[d] at the truth” during the questioning. (Ibid.) The Court of Appeal reversed the conviction, concluding the officers’ opinion on the child’s veracity was inadmissible either as a lay or expert opinion. (Id. at pp. 39-40.)
Poncedeleon, unlike the expert witness in People v. Coffman and Marlow or People v. Sergill, did not offer an opinion on whether Mr. 17 in the hypothetical was telling the truth. Poncedeleon was asked whether his opinion the robbery in the hypothetical was committed for the benefit of a street gang would change if Mr. 17 was offered three years with the California Youth Authority rather than 22 years in prison in exchange for inculpating Mr. 28. Poncedeleon simply explained why his opinion would not change. Poncedeleon did not profess expertise in assessing witness credibility, and unlike the investigator’s testimony in People v. Melton, Poncedeleon’s testimony did not inferentially indicate his assessment of Molina’s veracity. His testimony explaining why the change in the hypothetical did not alter his opinion was an expression of his knowledge and expertise of the culture and behavior of criminal street gangs.
Disposition
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.