Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of Riverside County, No. INF058218, Harold W. Hopp, Judge.
David McNeil Morse, 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, Garrett Beaumont, Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Miguel Angel Morales appeals from judgment entered following jury convictions for robbery (Pen. Code, § 211; count 1) and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury also found true the allegation that defendant personally used a firearm as to count 1 (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8)). The parties stipulated that, as to count 2, defendant had previously been convicted of a felony, and the trial court found true the prior strike allegation (§§ 667, subds. (c) and (e)(1), 1170.12, subd. (c)(1)). In a bifurcated trial, the jury also found true the gang enhancement on the robbery count (§ 186.22, subd. (b)).
Unless otherwise noted, all statutory references are to the Penal Code.
The trial court sentenced defendant to a prison term of 26 years.
Defendant contends the trial court abused its discretion in denying his motion for mistrial. Defendant also argues in his opening brief and in a supplemental brief that there was insufficient evidence supporting the gang enhancement.
We conclude there was no prejudicial error and affirm the judgment.
1. Facts and Procedural Background
On December 29, 2006, at 3:00 a.m., Shawni Marie Devito and her 19-year-old cousin, Elizabeth Alonso, ordered food at a Del Taco drive through in Palm Springs. Alonso was driving and Devito was a passenger. After they checked their order at the pick-up window and were about to leave, their car was suddenly blocked by a Mustang that pulled up in front of them. Antonio Mendoza was the driver and defendant was a front-seat passenger.
Mendoza was jointly charged with robbery but is not a party to this appeal.
Devito testified at trial that the front passenger got out of the passenger side of the Mustang and walked up to Alonso. The driver stayed in the car. Contrary to Devito’s testimony, Alonso testified that both the front passenger and the driver got out of the Mustang. Both had guns and demanded money.
Police Officer Curiel testified that during Alonso’s initial statement on December 29, 2006, Alonso told him, consistent with Devito’s version of the incident, that only the front passenger got out of the Mustang and approached her, demanding money.
As the passenger, defendant, walked up to Alonso’s open car window, he pointed a shotgun at Alonso’s head. Devito was angry and felt violated. She told defendant to “take the car,” but defendant yelled that he wanted cash. Devito did not have any cash, other than quarters, which she threw at defendant. Defendant saw Alonso’s purse on the back seat. As Alonso grabbed her purse to hand to defendant, some of the contents spilled out. She told defendant they did not have any cash. Defendant took the purse and fled in the Mustang.
Devito called 911 and gave a description of the Mustang, including the license plate number. She described the driver and front passenger, noting that defendant had a tattoo on his neck. During a photo line-up, Devito initialed a photo of someone other than defendant and Mendoza, and said the person “could have been” the driver but she was not certain.
On December 29, 2006, Alonso identified someone other than defendant in a six-pack photo line-up. Later, in March 2007, Alonso identified defendant as the robber in a six-pack photo line-up. Until then, none of the previous photo line-ups had included defendant’s photo. Alonso was unable to identify Mendoza in any of the photo line-ups. However, Alonso identified both defendant and Mendoza in court.
At trial, Devito identified Mendoza, rather than defendant, as the person who got out of the Mustang with a gun. Devito testified that only the passenger got out of the Mustang.
At trial, Devito identified Mendoza, rather than defendant, as the passenger who pointed the gun at Alonso. Alonso identified defendant and Mendoza as the two men who robbed her. She also testified that one of the two men had a tattoo in old English script on his neck. When asked who robbed her, Alonso pointed to defendant. When asked if she recognized anyone else that was there, she pointed to Mendoza.
Mendoza’s mother, Monica Luna, testified that during the morning of the robbery, she returned home at 6:30 a.m. from her 12-hour shift at San Gorgonio Memorial Hospital. Her daughter picked her up from work because Luna had lent her Mustang to Mendoza. When Luna arrived at her home in Palm Springs, Mendoza, defendant, and defendant’s girlfriend were there. Luna had never met defendant or his girlfriend before. They stayed at Luna’s home for the next week. Defendant was introduced to Luna by the name of “Stranger.”
After the robbery, Luna’s Mustang was impounded. When Luna tried to regain possession of the Mustang, the police told her it would not be released to her until she brought Mendoza in for an interview. When she had time off from work a couple weeks later, Luna brought Mendoza into the station.
Police Detective Browning testified that Mendoza said he was the driver of the Mustang on December 29, 2006, and admitted he blocked the robbery victims while they were in the Del Taco drive through area. Mendoza said he never got out of the car and the other person he was with had the guns. He told Browning a purse was taken during the robbery but nothing of value was in it. After the interview, Mendoza was released and went home with his mother.
The reporter’s transcript includes the testimony of Detective Brian Joseph Browning in volume one, which covers the first phase of the bifurcated trial, relating to trial of the charged crimes. Volume two of the reporter’s transcript covers the bifurcated trial of the gang enhancement and includes the testimony of Detective Frank Browning. It appears that Detective Brian Joseph Browning and Detective Frank Browning are the same person. We therefore refer to both as “Browning.”
Luna testified that, when they returned home, Luna asked Mendoza what was going on and he told her he had gone to Del Taco and blocked a girl’s car by parking his car in front of the girl’s car. Then Stranger got out of the car and robbed the girl in the car. The court sustained defense counsel’s objection to Luna’s testimony and instructed the jury not to rely on Luna’s testimony as to what defendant did or did not do.
Detective Browning testified that on March 18, 2007, he also interviewed defendant, who was in jail at the time. Defendant said he lived with his mother in Cherry Valley and used the nickname, “Strange One.” He denied any involvement in the robbery and claimed he had not been to Palm Springs since between 2000 and 2002. Defendant told Browning that between 12:00 a.m. and 3:00 a.m. on December 29, 2006, he was with his father, Angel Morales, at Kaiser Hospital and remained with him throughout the day on December 29, 2006, because Angel had had a heart attack. Angel died two months later.
When Detective Browning called Kaiser to confirm defendant had been there, Browning was told no one at Kaiser could confirm his presence. Angel’s medical records revealed that he initially was first admitted at San Gorgonio Hospital, not Kaiser, at 6:18 a.m. on December 29, 2006, which was after the burglary, and was transferred to Kaiser at 11:28 a.m. that same morning.
2. Motion for Mistrial
Defendant contends the trial court erred in denying his motion for mistrial. On appeal, a denial of a mistrial motion is reviewed under the abuse of discretion standard. (People v. Williams (1997) 16 Cal.4th 153, 210.) “‘A mistrial should be granted if the court is appraised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’” (People v. Wharton (1991) 53 Cal.3d 522, 565, quoting People v. Haskett (1982) 30 Cal.3d 841, 854.) The defendant is required to show that the error was not prejudicial to the outcome of his case. (People v. Memro (1995) 11 Cal.4th 786, 836.)
Initially, during the People’s motion in limine, the trial court ruled admissible Mendoza’s hearsay statement to Luna, in which Mendoza admitted his involvement in the robbery. However, after Luna testified that Mendoza told her defendant had approached the victims with a gun, the trial court, relying on People v. Duarte (2000) 24 Cal.4th 603 (Duarte), concluded that the portion of Mendoza’s statement implicating defendant was inadmissible because it did not fall within the declaration against interest hearsay exception or any other hearsay exception. The trial court ruled that Luna’s testimony that Mendoza told her he had blocked the victims’ car was admissible hearsay evidence under the declaration against interest hearsay exception (Evid. Code, § 1230), but ruled that Mendoza’s statement to Luna that defendant approached the girls with a gun was inadmissible since it was not a declaration against Mendoza’s interest.
The trial court sustained defendant’s objection and Luna did not testify further regarding Mendoza’s statement to her. Defense counsel moved for a mistrial right after Luna’s testimony implicating defendant. The trial court denied the motion but instructed the jury not to consider Luna’s testimony regarding Mendoza’s statement about defendant’s conduct.
On appeal, defendant contends the trial court should have granted his motion for mistrial. He argues that, even though the trial court did not admit into evidence the statement implicating defendant and ordered the testimony stricken from the record, a mistrial should have been granted because the statement was highly incriminating and prejudicial to his case and the jury was not likely to disregard it even with the court’s admonition.
The People respond that Mendoza’s entire statement to Luna was admissible under Evidence Code section 1230, and also no prejudicial error occurred because the trial court gave a timely admonition to the jury, instructing it not to consider the testimony against defendant. The People argue further that any error was harmless beyond a reasonable doubt because there was substantial evidence that defendant actually committed the robbery.
Defendant acknowledges that, even though Mendoza’s statement implicated defendant, the testimony was not barred under Bruton v. United States (1968) 391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518 since there was no violation of the confrontation clause because Mendoza’s statement to his mother was nontestimonial. (People v. Gutierrez (2009) 45 Cal.4th 789, 812-813; People v. Cervantes (2004) 118 Cal.App.4th 162, 174 (Cervantes).) Thus, in determining whether Mendoza’s statement to Luna was admissible hearsay evidence, we must determine whether the statement falls within a well-settled hearsay exception, such as the declaration against interest exception (§ 1230), and whether there is sufficient indicia of trustworthiness so as to render it admissible as against defendant. (Cervantes, supra, at p. 174.)
In considering admissibility of Mendoza’s statement to Luna under the declaration against interest exception, we employ the Greenberger analysis, which addresses admissibility of a statement made by a codefendant implicating nondeclarant codefendants in a joint trial. (People v. Greenberger (1997) 58 Cal.App.4th 298, 332-335; see also Cervantes, supra, 118 Cal.App.4th at p. 174.) In Greenberger, supra, at page 332, the court explained that, “Any such statement must satisfy the statutory definition of a declaration against interest and likewise satisfy the constitutional requirement of trustworthiness. This necessarily requires a ‘fact-intensive inquiry, which would require careful examination of all the circumstances surrounding the criminal activity involved;...’ [Citation.]”
The court in Greenberger, noted “[t]here is no litmus test for the determination of whether a statement is trustworthy and falls within the declaration against interest exception. The trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry” (People v. Greenberger, supra, 58 Cal.App.4th at p. 334), such as “the declarant’s relationship to the defendant.” (People v. Frierson (1991) 53 Cal.3d 730, 745; accord, Duarte, supra, 24 Cal.4th at p. 614.)
The Greenberger court further noted that “the least reliable circumstance is one in which the declarant has been arrested and attempts to improve his situation with the police by deflecting criminal responsibility onto others.” (Greenberger, supra, 58 Cal.App.4th at p. 335.) The most reliable circumstance “is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures.” (Ibid.)
The Greenberger court added that “Controversy necessarily arises when the declarant makes statements which are self-inculpatory as well as inculpatory of another. This is why Evidence Code section 1230 only permits an exception to the hearsay rule for statements that are specifically disserving of the declarant’s penal interest. [Citation.] This is not to say that a statement that incriminates the declarant and also inculpates the nondeclarant cannot be specifically disserving of the declarant’s penal interest. Such a determination necessarily depends upon a careful analysis of what was said and the totality of the circumstances. (People v. Wilson [(1993) 17 Cal.App.4th 271,] 276 [‘The fact that the statement is also disserving to [nondeclarant] does not render the statement unreliable and inadmissible....’]; [Citations].)” (Greenberger, supra, 58 Cal.App.4th at p. 335.) Such determination of whether a statement is trustworthy is entrusted to the sound discretion of the trial court and, in reviewing the trial court’s ruling, we apply the abuse of discretion standard. (Ibid.)
Relying on Greenberg, the court in Cervantes, supra, 118 Cal.App.4th 162, held admissible a hearsay statement by a codefendant implicating both the defendant and codefendants. (Id. at p. 177.) In Cervantes, the declarant made the hearsay statement within 24 hours of the charged murder to a lifelong friend from whom he sought medical treatment for injuries sustained while committing the offenses. The declarant attributed blame to his codefendants but also acknowledged he had an active role in the crimes. His statement was disserving of his penal interest because it subjected himself to the risk of criminal liability. (Id. at p. 175.) The Cervantes court concluded that under such circumstances, the statement was trustworthy and admissible under the declaration against interest exception. (Id. at p. 176.)
The Cervantes court rejected the defendant’s contention that the statement should have been redacted to exclude the portion implicating the nondeclarant defendants under Greenberger. (Cervantes, supra, 118 Cal.App.4that p. 176.) The Cervantes court concluded the statement was admissible because it qualified as a declaration against interest and satisfied the constitutional standard of trustworthiness. (Id. at pp. 176-177.)
Here, Mendoza’s statement implicated both himself and defendant. Defendant and the trial court cited Duarte, supra, 24 Cal.4th 603, for the proposition Mendoza’s statement was untrustworthy because it was both inculpatory and exculpatory. In Duarte an accomplice made a self-serving hearsay statement to a police officer. The statement implicated both the declarant and defendant. The Duarte court concluded the statement was inadmissible because it lacked trustworthiness, noting that to fall under the declaration against interest hearsay exception, the statement must be “specifically disserving” of the declarant’s penal interest. The Duarte court explained that the statement was not specifically disserving because it tended sympathetically to describe the declarant’s participation in the crime, minimize his responsibility for the victim’s injuries, and imply that others involved in the crime should bear a greater share of responsibility for the offense. (Duarte, supra, 24 Cal.4th at p. 613; People v. Leach (1975) 15 Cal.3d 419, 441.)
Duarte is distinguishable because the statement was made to a police officer, whereas Mendoza made his statement to his mother. Nevertheless we conclude Mendoza’s statement was not trustworthy because he made the statement two weeks after the robbery to his mother, right after giving an investigative statement to a police detective. There was thus the likelihood he told his mother what he had just told the police and may have minimized his involvement in the incident and shifted the blame to defendant to avoid his mother’s scorn and the possibility that she would report to the police what he told her. This is not the situation in which a defendant discloses to a close friend criminal conduct. Here, Mendoza’s mother had just taken him to the police in compliance with the police’s demand she bring in her son so she could get her car back.
Under these circumstances, the trial court could reasonably conclude Mendoza’s statement was not sufficiently trustworthy since he had the incentive to minimize his involvement in the robbery and shift the blame to defendant as to the more egregious act of using a gun to rob the victims.
Even though the trial court did not abuse its discretion in ruling inadmissible Mendoza’s statement implicating defendant, there was no abuse of discretion in denying defendant’s motion for mistrial since admission of the testimony was harmless error under People v. Watson (1956) 46 Cal.2d 818, 836-837, the standard applicable to state law error in the admission of hearsay (Duarte, supra, 24 Cal.4th at pp. 618-619).
After Luna briefly testified regarding Mendoza’s statement and the court sustained defendant’s objection to Luna’s testimony, Luna did not provide any further testimony regarding Mendoza’s statement. In addition, the court instructed the jury to “disregard any testimony Ms. Luna gave about any statements about what someone else said about what Mr. Morales did or didn’t do.”
Furthermore, there was overwhelming evidence of defendant’s guilt. Not only was there the admissible portion of Mendoza’s statement, in which Mendoza admitted he and defendant were at the Del Taco in Palm Springs and Mendoza blocked the victims’ car with the Mustang, but, in addition, the Mustang belonged to Mendoza’s mother. Also, Luna testified that, when she got home from work at 6:30 a.m., on December 29, 2006, defendant and his girlfriend were at her home in Palm Springs and stayed at her home during the following week. Luna had never met defendant or his girlfriend before the morning of December 29. In addition, at trial and during a photo lineup, Alonso identified defendant as the person who got out of the Mustang with a gun and robbed her. Alonso also recognized a tattoo on defendant’s neck that was in old English writing.
There was also evidence, including Luna’s testimony, refuting defendant’s alibi that he was not in Palm Springs at the time of the robbery. Defendant told Detective Browning that he had not been there since sometime between 2000 and 2002 and claimed the last time he was with Mendoza was “years back.” In addition, defendant told Browning that, at the time of the robbery, he was at Kaiser Hospital visiting his father who had just had a heart attack. But there was evidence that defendant’s father, Angel Morales, was not admitted to a hospital until three hours after the robbery, and was initially admitted at San Gorgonio Hospital, not Kaiser Hospital. Angel was not transferred to Kaiser Hospital until later that day. No one at Kaiser could confirm defendant had been at Kaiser that day.
Based on this evidence, we conclude it was not reasonably probable that the jury would have reached a more favorable outcome had the court excluded Luna’s testimony that Mendoza told her defendant got out of the Mustang and approached the victims with a gun (People v. Watson, supra, 46 Cal.2d at pp. 836-837). The trial court thus did not abuse its discretion in denying defendant’s motion for mistrial.
3. Sufficiency of Evidence of the Gang Enhancement
Defendant contends there was insufficient evidence to support defendant’s gang enhancement within the meaning of section 186.22, subdivision (e).
Section 186.22, subdivision (e) is referred to herein as “section 186.22(e).”
A. Background Facts
During the bifurcated trial of the gang enhancement, Detective Browning of the Palm Springs Police Department testified that he interviewed defendant on March 18, 2007. Defendant said he was living in Cherry Valley at the time. He had been a member of the Eastside Banning Sapos gang (ESBS) for a long time and his moniker was “Strange One.” Defendant told his parole officer he was no longer in a gang.
Detective Browning noticed defendant had several gang tattoos, including “Eastside Banning” on one side of his head, “Strange One” on the other side of his head, “JayJay” on his neck, and “Eastside” on his hands.
Defendant said he knew Mendoza from doing air conditioning work and security work with him but it had been years since defendant had seen him.
Detective Browning interviewed Mendoza in February 2007. Mendoza admitted his involvement in the robbery and said he knew someone named “Stranger.” Mendoza described defendant, noting defendant had a tattoo, “Jay,” on his neck and an “Eastside Banning” tattoo on his head.
Mendoza also acknowledged he knew some of the ESBS gang members but denied being a member himself. Mendoza said he committed the robbery at the direction of Stranger and knew defendant was an ESBS gang member. Detective Browning did not notice any gang tattoos on Mendoza and was not aware of Mendoza being a gang member. Browning had never met him before the incident. Mendoza said he had lived in Banning until he was 10 years old. He then moved away and eventually moved to Palm Springs. When he was arrested, he was living in Cathedral City.
Detective Browning testified that he had interviewed hundreds of gang members or suspected gang members and spoke to a gang expert in Banning.
The prosecution’s gang expert, Detective Bryan Callahan of the Banning Police Department, San Gorgonio Special Operation Gang Task Force, testified regarding gang culture generally and provided information about the ESBS gang. The ESBS’s turf is primarily in the Banning area but the gang also painted graffiti in Cabazon, Hemet, and San Jacinto. When asked what ESBS’s primary activities were, Callahan stated that ESBS engaged in graffiti on a daily basis in these areas.
When asked about ESBS’s predicate activities, Detective Callahan described three predicate offenses committed by the ESBS. They included the charged robbery offense, a prior criminal threat conviction in 2006 (§ 422), and a prior murder in 2004 (§ 187). The two prior crimes were not committed by defendant or Mendoza. Callahan testified that the prior criminal threat conviction in 2006 and murder conviction in 2004 were the type of crimes consistently repeated by the ESBS gang.
Detective Callahan further stated he was familiar with defendant and had spoken to him in the past. Defendant was a documented member of the ESBS gang. Callahan noted it was common for gang members to acknowledge they were gang members and then later claim they dropped out of the gang. Defendant admitted to Detective Browning during his interview in March 2007 that he was a gang member but claimed he no longer was a member. However, information provided by the jail classification deputies who booked defendant in 2008 had stated defendant was currently a gang member, not a drop-out. Defendant’s moniker was “Strange One” or “Stranger.” Callahan concluded defendant was still a gang member based on this information and defendant’s tattoos, gang paraphernalia, such as clothing, and his admissions.
Detective Callahan testified he was familiar with Mendoza as a result of the instant case. Callahan concluded Mendoza was not a documented ESBS member. Callahan classified Mendoza as an ESBS gang associate based on the facts of the instant case. Callahan further testified that, in his opinion, Mendoza participated in the robbery at defendant’s direction, in association with the ESBS gang. Callahan concluded the robbery was gang-related in part because Mendoza willingly participated in the robbery at defendant’s direction, knowing defendant was an armed gang member, and Mendoza benefitted from assisting in the crime. It bolstered his reputation in the gang. Defendant and Mendoza gained respect from the gang by virtue of their arrest for committing crimes such as robbery. Also, the robbery promoted and assisted the ESBS gang by instilling fear in the community. It gave the gang “respect.” ESBS could boast about it.
Defendant’s mother, Lupe Morales (Mrs. Morales), and defendant’s niece, Ashley Giron, who was 17 at the time of trial, testified on defendant’s behalf. Defendant’s older sister, who was 34 at the time of trial, also testified for the defense. Mrs. Morales testified that she and her family lived in Banning until 1990. Thereafter they lived in Beaumont, and then moved to Cherry Valley, where they currently live. Defendant has lived with her the entire time with the exception of when he was “locked up” for four years.
Mrs. Morales claimed defendant was not involved in any gang activity when they lived in Banning. Defendant also did not associate with gang members when they lived in Beaumont. Defendant got his first tattoos while incarcerated. The tattoos were mostly names of family members. When he came home from prison, he had “Eastside Banning” and Sapo” tattoos. Mrs. Morales did not know if defendant was a gang member. She acknowledged he probably would not have told her.
Ashley testified that she had known defendant all her life. She lived near him growing up and, at the time of trial, lived in Banning. Ashley claimed that defendant did not associate with a gang because he was always home. Although there were gang members in their neighborhood, she and defendant did not have contact with them. Ashley had never seen before the gang tattoos on defendant’s arm and she never heard him called Stranger.
Angelina testified she lived with defendant until her daughter, Ashley, was born. Defendant had never been a gang member or associated with gang members as far as Angelina knew. Angelina hung out with defendant’s friends. When she and defendant were younger, there were no gangs in Banning. Defendant’s family nickname was “Jay.” He got his “Strange One” tattoo in prison.
B. Elements of the Gang Enhancement
The California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.) (the STEP Act) includes a sentence enhancement provision for “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.” (§ 186.22, subd. (b)(1); People v. Vy (2004) 122 Cal.App.4th 1209, 1221 (Vy).) A gang enhancement under section 186.22, subdivision (b)(1) requires proof that (1) the defendant committed a felony; (2) the felony was committed for the benefit of, at the direction of, or in association with any criminal street gang; and (3) the felony was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1); see In re Ramon T. (1997) 57 Cal.App.4th 201, 207 & fn. 3.)
To establish that a group is a “criminal street gang” within the meaning of the statute, the prosecution must prove, among other elements, that one of the group’s primary activities is the commission of one or more offenses listed in section 186.22(e), and that the group’s members engage in, or have engaged in, a pattern of criminal gang activity. (§ 186.22, subd. (f); People v. Duran (2002) 97 Cal.App.4th 1448, 1457.)
A gang enhancement true finding must be based on substantial evidence. (Vy, supra, 122 Cal.App.4th at pp. 1221, 1224; People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) In determining whether substantial evidence supports a gang enhancement, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements true beyond a reasonable doubt. (Vy, supra, at p. 1224.)
C. Sufficiency of Evidence of Primary Activities Element
Defendant contends there was insufficient evidence that the ESBS gang’s primary activities included the commission of crimes enumerated in section 186.22(e).
The phrase “primary activities” “implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition... necessarily exclude[s] the occasional commission of those crimes by the group’s members.... [¶] Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324 (Sengpadychith).) A group’s prior offenses, together with the circumstances of a charged offense, have some tendency in reason to show the group’s primary activities. (People v. Duran, supra, 97 Cal.App.4th at p. 1465, citing Sengpadychith, supra, 26 Cal.4th at pp. 320, 323.) Expert testimony may also be sufficient to prove the primary activities element of a gang enhancement allegation. (Sengpadychith, supra, at p. 324; People v. Augborne (2002) 104 Cal.App.4th 362, 372-373.)
Defendant argues the prosecution’s gang expert, Detective Callahan, testified ESBS’s primary criminal activity, committed on a daily basis, was graffiti, which is not one of the crimes enumerated in section 186.22(e). Callahan also stated that the crimes of murder and criminal threats were predicate crimes but were not the gang’s primary activity.
But Detective Callahan also testified that the criminal threat and murder crimes were the type of crimes consistently repeated by ESBS. After discussing the gang’s predicate acts under section 186.22(e), Callahan testified that the prior criminal threat conviction in 2006 and murder conviction in 2004 were the type of crimes consistently repeated by the ESBS gang. Thus these offenses qualified as primary activities of the gang under section 186.22.
D. Sufficiency of Evidence the Robbery Was Committed in Association with the Gang and with Intent to Promote or Assist Criminal Gang Conduct
Defendant contends the evidence was also insufficient to establish that the robbery was committed in association with, for the benefit of, or at the direction of the ESBS gang, with the specific intent to promote, further, or assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1).
In proving these gang enhancement elements, the prosecution may rely on expert testimony, as was done in the instant case. (Sengpadychith, supra, 26 Cal.4th at p. 322.) An expert’s testimony is admissible concerning the existence, size, or composition of a gang; an individual’s membership in, or association with, a gang; the primary activities of a specific gang; the motivation for a particular crime; whether a crime was committed to benefit or promote a gang, and how; rivalries between gangs; gang-related tattoos; and gang colors or attire. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657.) The expert also may testify concerning whether the defendant acted for the benefit of a gang, even though it is an ultimate factual issue for the jury to decide, because these are matters far beyond the common experience of the jury. (People v. Valdez (1997) 58 Cal.App.4th 494, 508-510.)
Defendant’s reliance on People v. Albarran (2007) 149 Cal.App.4th 214 and In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.) for the proposition the evidence was insufficient to support the gang enhancement is misplaced. Both these cases are distinguishable in that in those cases there was no evidence the defendant joined with another gang member or associate in committing the charged crime and the defendants did not commit the crimes in the presence of any victims. There was no victim gang-related intimidation or instilling fear in the victims. In Albarran, the defendant shot a gun at a home from three houses away. (Albarran, supra, at p. 217) The Albarran court concluded there was insufficient evidence to support a gang enhancement because there was no evidence defendant or his companions had made themselves known as gang members or associates when they committed the charged crime. There thus was no evidence the defendant committed the crime with intent to gain respect and enhance his status within his gang. (Id. at p. 227.)
In Frank S., supra, 141 Cal.App.4th 1192, the defendant was convicted of carrying a concealed dirk (§ 12020, subd. (a)(4)). An officer stopped the defendant because he failed to stop at a red light. The defendant was riding a bicycle by himself at the time. The officer discovered the defendant was carrying a dagger and methamphetamine. The court in Frank S. reversed the trial court gang enhancement allegation, concluding the defendant’s criminal history and gang affiliations constituted insufficient evidence to support a gang enhancement. (Frank S., supra, at p. 1194.)
Although evidence that a gang member committed a crime in association with another gang member or associate is insufficient alone to establish that a crime was committed for the benefit of a gang, the jury could reasonably infer that the crime was committed in association with a gang from the fact that defendant committed the charged crime in association with fellow gang members. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Furthermore, “specific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members....’” (Morales, supra, at p. 1198.) In addition, there is no requirement under subdivision (b) of section 186.22 that violation of that act requires either “active” or “current, active” participation in a gang. (In re Ramon T., supra, 57 Cal.App.4th at p. 207.)
Here, there was more evidence supporting defendant’s gang enhancement than in Frank S. and Albarran. There was evidence a gang member and a gang associate, defendant and Mendoza, jointly committed the robbery; Mendoza intended to assist defendant in committing the armed robbery, acting under defendant’s direction; and, in Detective Callahan’s expert opinion, defendant and Mendoza committed the robbery to increase their stature and reputation in the ESBS gang and to instill fear of the gang in the community.
In addition, defendant flaunted his gang membership through his visible gang tattoos on his shaved head and hands. Although Mendoza did not have any tattoos, like defendant, he shaved his head, which was commonly done by gang members and associates. Detective Callahan testified that committing a crime under the direction of a gang member was one way to become a gang member without being “jumped in” or beat up. By acting under the direction of defendant and assisting him in committing the robbery, Mendoza may have benefited by qualifying to join the gang without going through the initiation process of being beat up.
Defendant’s reliance on People v. Ramon (2009) 175 Cal.App.4th 843, is also misplaced. In Ramon, the defendant was convicted of receiving a stolen vehicle and for possessing a loaded, unregistered firearm. The court in Ramon reversed the gang enhancement due to insufficient evidence. The only evidence supporting the enhancement was a gang expert’s testimony concluding defendant’s crimes were committed with the specific intent to promote, further, or assist criminal conduct by gang members. He based his opinion on the fact that defendant was with another gang member and he was in gang territory when apprehended. (Id. at p. 851.) The Ramon court concluded these facts were insufficient to support the expert’s opinion about the defendant’s specific intent. (Id. at p. 852.)
Here, the evidence supporting the gang enhancement was more substantial. Unlike in Ramon, which was essentially a property crime with no victim confrontation or indication of gang involvement, in the instant case, defendant and Mendoza committed an armed robbery, which involved two victims and the threat of violence. Defendant’s display of gang tattoos, visible on his shaved head and hands revealed his gang’s identity. Unlike the circumstances in Ramon, in which the defendant’s convictions were based on being found in possession of a stolen vehicle and carrying a gun, in the instant case Mendoza and defendant, who had gang tattoos, robbed two victims at gunpoint, thereby likely instilling fear of gang crime in the victims and the community. These circumstances, in conjunction with Callahan’s expert opinion founded on his personal knowledge of the ESBS gang and other local gangs, constituted sufficient evidence to support the gang enhancement.
Although the robbery was not committed in ESBS territory, it was committed nearby and Detective Callahan testified it was typical for gangs to commit robberies outside gang territory because it was less likely the perpetrators would be caught.
Based on the foregoing, we conclude the evidence, together with the reasonable inferences to be drawn from it, supports the jury’s gang enhancement finding.
4. Disposition
The judgment is affirmed.
We concur: Ramirez, P. J., King, J.