Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court Nos. SCN194815, SCN196968, of San Diego County, Joan P. Weber, Judge.
O'ROURKE, J.
In connection with incidents occurring on two different days against unrelated victims (consolidated for trial), a jury convicted David Rodriguez of kidnapping for robbery (Pen. Code, § 209, subd. (b)(1), count 1); kidnapping during a carjacking (§ 209.5, subd. (a), count 2); carjacking (§ 215, subd. (a), count 3); robbery (§ 211, count 4); false imprisonment by violence, menace, fraud or deceit (§§ 236, 237, subd. (a), counts 5 and 9); assault with a deadly weapon (§ 245, subd. (a)(2), count 6); unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a), count 7); first degree robbery (§§ 211, 212.5, subd. (a), count 8); and assault with a deadly weapon and force likely to cause great bodily injury (§ 245, subd. (a)(1), count 10). As to counts 1 through 5 and 7, the jury found true that Rodriguez personally used a firearm in the commission of the crimes (§§ 12022.5, subd. (a); 12022.53, subd. (b) and as to counts 8 and 9, that he personally used a deadly weapon (§ 12022, subd. (b)(1).). The jury also found true allegations that in committing the offenses (with the exception of the false imprisonment offenses of counts 5 and 9), Rodriguez acted for the benefit of, or at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). Counts 1 through 7 involve victim Anthony B.; counts 8 through 10 involve unrelated victim Richard B. (at times hereafter Anthony and Richard). The court sentenced Rodriguez to an indeterminate prison term of 15 years to life plus 25 years, consisting of a consecutive 10-year term for the firearm enhancement on count 1, and 15 years on count 8 (4-year midterm on the robbery charge, one year for the knife use enhancement and 10 years for the gang enhancement). It stayed the sentences on the remaining terms and enhancements under section 654.
All statutory references are to the Penal Code unless otherwise indicated.
Rodriguez contends the evidence is insufficient to show he and his codefendant kidnapped Anthony with the specific intent of facilitating the carjacking, and, alternatively, the carjacking conviction of count 3 must be reversed because that offense is a lesser included offense of kidnapping during the course of a carjacking. He further contends the false imprisonment conviction of count 5 must be reversed as a lesser included offense of kidnapping for robbery. Finally, Rodriguez contends the gang enhancements must be reversed because the evidence is insufficient to show he committed the crimes with the specific intent to benefit a criminal street gang for purposes of the section 182.66 enhancements, or alternatively because they are premised on inadmissible gang expert testimony on the ultimate fact of his specific intent to commit gang crimes.
The People concede that Rodriguez's convictions for carjacking in count 3 and felony false imprisonment of count 5 are lesser included offenses as Rodriguez argues, and we agree those convictions must be reversed. We reject Rodriguez's other contentions, and accordingly, affirm the remainder of the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
May 5, 2005 Offenses Against Anthony B.
On May 5, 2005, Anthony B. was driving his Jeep SUV to Poinsettia Park in Carlsbad to a softball game. As he drove southbound on Coast Highway, he noticed a maroon-colored sedan with tinted windows speeding and swerving in and out of lanes behind him, trying to keep up with him. He could see a female driver and male passenger in the car. Anthony drove through residential streets to the park, and turned into the parking lot; he saw that the maroon car was still behind him but thought nothing of it. A baseball game was in progress and there were players on the field. Because the parking lot was full, Anthony pulled to an unmarked space within the lot outside of the parking section. Moments after Anthony parked and while he was sitting in his car, the maroon car pulled up to his right-hand side and two men jumped out, one carrying a shotgun. Both men had bandanas over their faces but later removed them, permitting Anthony to identify the gunman as Rodriguez's codefendant Ivan Cruz, and the other man as Rodriguez. When Cruz pointed the gun in Anthony's face and said, "Scoot over and let my partner in," Anthony complied and unlocked his car doors.
Cruz entered the driver's seat and handed the shotgun to Rodriguez, who had entered the car from the back door. They instructed Anthony to put his head down and give them his phone, wallet, jewelry and anything else he had. Rodriguez sat behind Cruz and held the gun over the center console at Anthony's back. While Cruz drove out of the parking lot, Anthony gave up his cellular phone, his wallet containing his driver's license, automated teller machine (ATM) card, health card, and a small amount of money, as well as a gold neck chain and pendent he was wearing. Cruz drove southbound on Interstate 5 asking Anthony questions about where he worked and the location of his bank. He exited the highway on Leucadia Boulevard and drove to a house where Rodriguez handed the gun back to Cruz and left the car. While Rodriguez was gone, Cruz told Anthony not to "mess around," that he and Rodriguez were "serious" and had been to jail, and they would "do anything so don't get any wild ideas." Cruz told Anthony they were all going to smoke crack and they were going to make him smoke as well. Rodriguez reentered the car with a woman and he, Cruz and the woman proceeded to smoke from a glass pipe without forcing Anthony to join. When they finished smoking, Rodriguez and Cruz switched places in the car and the woman left.
As Rodriguez began to drive away, one of the men asked Anthony the location of his bank. Anthony gave the name of his bank and the closest location, but they replied they were not going to his bank but would find one themselves. Rodriguez then drove back onto the highway and exited on Manchester, where he parked at a convenience store. Cruz had the shotgun pointed at Anthony's back. One of the men asked Anthony for his ATM identification number, and he gave it to Rodriguez, who was holding his wallet and ATM card. Rodriguez removed the gloves he was wearing, turned off the ignition with his bandana, and entered the convenience store. Cruz began to converse with Anthony, telling him that after they got his money, they were going to the lagoon and he was going to shoot Rodriguez because Rodriguez was greedy and would not give him Anthony's stereo. Cruz also told Anthony that he was part of the "Mexican mob"; that if Anthony messed around, he had all of Anthony's information and was going to go after his family. When Anthony saw Rodriguez returning to the car and Cruz looking away to speak to him, he slapped at the shotgun and ran out of the car. Anthony called 911 at a nearby apartment complex.
Certified fingerprint examiners later determined that Rodriguez's fingerprints were on the ATM receipt used at the convenience store that day.
May 12, 2005 Offenses Against Richard B.
At about 6:30 a.m. on May 12, 2005, Richard B., who had just worked a night shift, was in his apartment when he heard a knock on his door and opened it to find a man standing there, who he later identified as Cruz. Cruz asked if Jesus was living there. When Richard said no, Cruz asked for a glass of water. Richard declined and told Cruz he needed to leave. When he started to shut the door, Cruz and another man, who Richard identified as Rodriguez, forced themselves into the apartment. Telling Richard to "stay cool," Cruz pulled a knife out of his jacket pocket and handed it to Rodriguez, who directed Richard to sit down in a chair in the living room. Rodriguez held the knife across Richard's throat while Cruz went through the apartment, looking for something. The men asked him if he knew Jesus, and though Richard said no, they responded, "Yeah, you do. Yeah, you do." Cruz finished searching the house and he and Rodriguez spoke to each other in Spanish and English, Cruz telling Rodriguez something such as, "Light it up," and Rodriguez telling Cruz, "No, not right now. We just need to go." Cruz took Richard's cellular phone and a few dollars out of his wallet and the men left. Richard ran downstairs and tried to identify their vehicle and get a license plate number.He later learned that a person named Jesus had lived in the next door apartment. Testimony of Oceanside Police Department Detective Gordon Govier
At trial, the prosecution presented an expert, detective Gordon Govier with the Oceanside Police Department special enforcement section gang unit, to testify about the gang-related nature of the offenses. Detective Govier described his training, background and experience dealing with street gangs in general, and his specific knowledge about the history and characteristics of the Posole gang. He was personally familiar with Cruz and Rodriguez, who he testified were documented Posole gang members with the respective street names "Hefty" and "Dreamer." He described tattoos on both Cruz and Rodriquez denoting Posole gang and Mexican mafia affiliation. Detective Govier also explained that the Mexican mafia was a prison gang that rules in California prisons, and is comprised of Southern California gang members.
Responding to the prosecutor's hypothetical fact scenario of a situation like that involving Anthony B., Detective Govier testified based on his training, experience, education and knowledge that the crimes committed by Cruz and Rodriguez were for the benefit of, at the direction of, or in association with the Posole criminal street gang. He explained: "Several factors enter in. The gang will promote themselves by committing violent crimes such as a kidnapping here, with – and an assault with a deadly weapon being the sawed-off shotgun, the altered shotgun. [¶] There's a financial gain, in that, they are – they've robbed the victim. [¶] They have a vehicle now that they can use to commit other crimes. [¶] They have access to the victim's funds, which can contribute to the gang. [¶] As stated, they had smoked a substance. In order to purchase more of those substances, they need to have cash. [¶] Also, the intimidation factor with regards to the victim here. It's very unlikely that the – that Cruz was going to harm his partner. However, by stating that to the victim, the victim will feel that this guy is so crazy enough to harm his partner, wondering what's going to happen to him. He's definitely expecting to be harmed by that act."
Detective Govier testified that the presence of others in the vehicle following the defendants was significant despite the lack of information about their gang status, because the witnesses could return to the neighborhood and talk about having witnessed defendants committing the crime. According to Detective Govier, those circumstances would promote both the gang as well as raise Cruz's and Rodriguez's respective status within the gang because they committed a violent act. Based on the scenario given, Detective Govier opined that defendants' intended to assist, further or promote the criminal conduct by gang members; that their conduct during the commission of those crimes was for the sole purpose of promoting both themselves within the gang and promoting the Posoles gang as a violent criminal street gang.
Detective Govier reached the same conclusions in response to a hypothetical question involving the circumstances of the offenses against Richard B. He testified that the offense was an example of benefitting the gang by "putting in work for [it]" as where they are looking for someone that owes them money. Even if they target the wrong house, in such cases, gang members will continue to try to collect the money to promote the gang as a violent organization. According to Govier, the resulting financial gain, and fact the crimes were reported to police and word spread in the neighborhood, instilling fear, would benefit the gang and its reputation, and demonstrated the defendants' intent to assist, further or promote criminal conduct by gang members.
DISCUSSION
I. Sufficiency of Evidence of Section 209.5 Offense of Kidnapping During the Commission of Carjacking
Rodriguez contends the prosecution did not present evidence to prove Anthony B.'s kidnapping was done with the requisite intent under section 209.5, namely, with the specific intent to facilitate the carjacking. Asserting that the facilitation requirement is an element of the section 209.5 crime in addition to the element that a kidnapping occur during the carjacking's commission, Rodriguez maintains the evidence at trial only proved he and Cruz "carjacked and kidnapped Anthony, robbed him during the carjacking, and kidnapped him in order to commit the robbery of his personal items and his money from the [ATM]." According to Rodriguez, the evidence is sufficient to prove only that the carjacking was committed in order to facilitate the kidnapping or the robbery, which does not meet the requirements of section 209.5.
Section 209.5 provides in part: "(a) Any person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking shall be punished by imprisonment in the state prison for life with the possibility of parole. [¶] (b) This section shall only apply if the movement of the victim is beyond that merely incidental to the commission of the carjacking, the victim is moved a substantial distance from the vicinity of the carjacking, and the movement of the victim increases the risk of harm to he victim over and above that necessarily present in the crime of carjacking itself."
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence – evidence that is reasonable, credible and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict. (People v. Redmond (1969) 71 Cal.2d 745, 755; see also People v. Stewart (2000) 77 Cal.App.4th 785, 790.)
The offense described in section 209.5 is committed by kidnapping another person "during the commission of a carjacking and in order to facilitate the commission of the carjacking . . . ." (§ 209.5, subd. (a).) The offense requires proof the victim was moved a substantial distance from the vicinity of the carjacking, that the movement be "beyond that merely incidental to the commission of the carjacking," and that the movement increased "the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself." (§ 209.5, subd. (b).) In People v. Perez (2000) 84 Cal.App.4th 856 (Perez) the court analogized the section 209.5 offense to the crime of kidnapping during the commission of a robbery (§ 209), stating, "The California Supreme Court has held that 'where a kidnap[p]ing occurs after the actual perpetration of a robbery such kidnap[p]ing may be kidnap[p]ing for the purpose of robbery if it may reasonably be inferred that the transportation of the victim was to effect the escape of the robber or to remove the victim to another place where he might less easily sound an alarm.' [Citation.] Therefore, if there is substantial evidence that appellant intended the kidnapping to effect an escape or prevent an alarm from being sounded, his conviction for kidnapping during the commission of a carjacking must stand." (Perez, 84 Cal.App.4th at pp. 860-861, quoting People v. Monk (1961) 56 Cal.2d 288, 295.)
In Perez, the victim was loading groceries in a parking lot when assailants approached him, pushed him into the backseat of his car at gunpoint and left the parking lot, looking into the victim's wallet and becoming angry that he had no cash. (Perez, supra, 84 Cal.App.4th at p. 859.) The victim's wife had approached the car and the assailants demanded that she get in, but she ran back into the store when the victim yelled out to her, and she was seen talking to a security guard as the car left the parking lot. (Ibid.) When the victim told the men he'd give them everything if they'd let him go, the defendant told him not to worry, that he was going to bring him to " 'a quiet place.' " (Ibid.) The victim thereafter escaped. (Id. at pp. 859-860.) The Court of Appeal held this evidence permitted the trier of fact to reasonably conclude that the defendant kidnapped the victim to effect his escape or at least prevent an alarm from sounding, because the assailants had initially demanded that his wife enter the car, and given the presence of a security guard, had she been taken they would have in fact prevented her from raising an alarm. (Perez, at p. 861.) The court emphasized, "The question is not whether the kidnapping did in fact effect an escape, or prevent an alarm from being sounded, but whether appellant intended the kidnapping to effect an escape. An escape attempt that is poorly thought out is still an escape attempt." (Ibid.) Further, the court stated the evidence demonstrated they kidnapped the victim because he was the only eyewitness who could positively identify them, and based on the comment about taking him to a quiet place, intended to kill him. (Ibid.)
In Monk, the evidence showed the victim was returning to her home from a shopping center when the defendant accosted her, guided her with a gun a distance of six to eight feet into a parking area and forced her into an automobile, telling her to throw her wallet in the back of the car. (People v. Monk, supra, 56 Cal.2d at p. 293.) He drove her approximately five to six miles before she escaped. (Ibid.) The court upheld the section 209 conviction against the defendant's sufficiency of the evidence challenge, observing the victim "was near a shopping center when defendant accosted her, and it could reasonably be inferred by the trial court that he forced her to accompany him in his car in order to prevent her from turning in an immediate alarm." (Id. at p. 295.)
The circumstances here are like those in Perez and Monk. Anthony parked his vehicle in a full parking lot in close enough proximity to an ongoing baseball game that he could see the players on the field. The evidence shows Rodriguez and Cruz demanded that he "scoot over" and put his head down to his lap as they drove away from the lot. As the People point out, under these circumstances, a jury can reasonably infer without speculating that defendants' demand that Anthony put his head down while they drove away from the site was intended to permit them to leave the parking lot undetected. Had they ordered Anthony out of the car in the parking lot and driven away by themselves, Anthony could have attracted the attention of others either on the field or in the parking lot to call the police, preventing or inhibiting the carjacking.
Rodriguez does not challenge the Perez court's holding as to the type of evidence that will demonstrate the required specific intent under section 209.5, rather, he rejects application of Perez to the circumstances of this case on grounds that the presence of people in the parking lot raises only a "possibility" or creates a "suspicion" that defendants specifically intended to keep Anthony in his car to facilitate their escape, which is not substantial evidence. He suggests the evidence must show he and Cruz actually intended to kidnap Anthony to facilitate the carjacking, as opposed to only possibly intending such a result. We reject this reasoning. The evidence, viewing it in the light most favorable to the People, must simply permit a reasonable jury to reach a logical inference as to defendants' intent. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action. (Evid. Code, § 600, subd. (b).)
We conclude the facts in the record – that defendants forced Anthony to remain in the car and put his head down – permits a rational juror to conclude that defendants intended to take Anthony so as to prevent him from immediately alerting others to call police; that their intent in kidnapping him was to assist their escape. This is not mere speculation or supposition, as Rodriguez urges, but a permissible inference. As Perez and Monk demonstrate from their similar facts, the jury could logically deduce defendants' intentions from the above-referenced conduct toward Anthony.
II. Rodriguez's Carjacking Conviction Must Be Reversed as a Lesser Included Offense of Kidnapping During the Commission of a Carjacking
Rodriguez contends his carjacking conviction must be reversed because it is a lesser included offense of the section 209.5 offense. The People concede the point under the statutory elements test. (See People v. Medina (2007) 41 Cal.4th 685, 687-688.) We agree that an individual may not be convicted of both a greater crime and a lesser included offense (People v. Pearson (1986) 42 Cal.3d 351, 355 ["multiple convictions may not be based on necessarily included offenses"]; see also Medina, at pp. 688-689 [upholding Pearson'sviability]), and because carjacking is a lesser included offense of kidnapping for carjacking, Rodriguez's carjacking conviction must be reversed. (People v. Contreras (1997) 55 Cal.App.4th 760, 765, holding acknowledged in Medina, 41 Cal.4th at pp. 690, 693; People v. Ortiz (2002) 101 Cal.App.4th 410, 415; People v. Jones (1999) 75 Cal.App.4th 616, 626 [following Contreras].)
III. Rodriguez's False Imprisonment Conviction Must be Reversed as a Lesser Included Offense of Kidnapping
The People additionally concede Rodriguez's contention that his false imprisonment conviction must be reversed because it is necessarily included in the offense of kidnapping. Again, we agree with Rodriguez. Rodriguez's convictions do not stem from separate acts and his actions against Anthony constituted a single course of conduct. Because Rodriguez does not challenge the sufficiency of the evidence of the greater offense of kidnapping and the evidence supports that offense, he cannot also be convicted of the lesser included offense of false imprisonment. (See People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121; People v. Patrick (1981) 126 Cal.App.3d 952, 965; People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820; People v. Apo (1972) 25 Cal.App.3d 790, 796.) We reverse his conviction for false imprisonment and order it stricken.
IV. Section 186.22 Gang Enhancements
Rodriguez raises two main challenges to the evidence supporting the jury's conclusion that the offenses were committed "for the benefit of, at the direction of, or in association with, [a] criminal street gang" under section 186.22, subdivision (b). First, he contends there is insufficient evidence he committed any of the crimes for, or as part of, a gang; that he never said anything about a gang, made gang signs, or otherwise invoked his gang membership to facilitate the crimes. Nor, Rodriguez asserts, is there evidence of his specific intent to use the fruits of the crimes to benefit a gang or enhance the gang's reputation. Second, he argues Detective Govier's opinions about the ultimate fact of his specific intent were inadmissible legal conclusions that do not constitute substantial evidence, and thus the court prejudicially erred in admitting his testimony.
To establish the gang enhancement under section 186.22, subdivision (b), "the prosecution must prove that the crime for which the defendant was convicted had been 'committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.' " (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) The prosecution must also prove "that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a 'pattern of criminal activity' by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called 'predicate offenses') during the statutorily defined period." (Id. at p. 617, emphasis omitted.) Rodriguez does not challenge the evidence concerning the latter elements, and thus implicitly concedes the sufficiency of the evidence supporting them.
As indicated above, our review of the sufficiency of the evidence is deferential. We apply the same the test to findings based largely on circumstantial evidence. (People v. Killebrew (2002) 103 Cal.App.4th 644, 660 (Killebrew); People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusion. (People v. Arcega (1982) 32 Cal.3d 504, 518; People v. Johnson (1980) 26 Cal.3d 557, 576.)
A. Detective Govier's Testimony Constitutes Substantial Evidence that Rodriguez Committed the Crimes For or As Part of the Posole Gang
Rodriguez's sufficiency of the evidence arguments turn on the quality of Detective Govier's opinion as to the gang-related nature of the crimes. Detective Govier testified that "the fact set given here [pertaining to the crimes against Anthony] is consistent with a crime being committed for the benefit of, at the direction of, or in association with the Posole Locos criminal street gang." Though he concedes this was a "reasonable answer," Rodriguez nevertheless argues the conclusion is speculative and irrational, and thus cannot constitute substantial evidence. Rodriguez argues: "Since all of the factors [Detective Govier] identified as 'consistent with' a gang crime could also characterize a non-gang crime, no rational person could conclude beyond a reasonable doubt these were gang crimes based on this 'consistency'; to do so would be speculation or prejudice, which cannot be the basis of lawful inferences establishing culpability." Rodriguez cites as "absurd" Detective Govier's opinion that defendant's sole purpose in committing the crimes was to promote themselves within the gang and promoting the gang itself.
We disagree with Rodriguez's assessment of Detective Govier's testimony. It is entirely proper for a qualified gang expert as Govier is here, when presented with hypothetical scenarios "properly rooted in the evidence presented at trial" (People v. Ferraez, supra, 112 Cal.App.4th at p. 930; see also People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4), to testify how particular criminal conduct may enhance a gang's reputation or how a gang may use proceeds from a crime to further other criminal activity. (Accord, People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3; People v. Ward (2005) 36 Cal.4th 186, 209.)Such matters are " 'sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' " (Ferraez, at pp. 930-931;e.g., Gonzalez, 38 Cal.4th at pp. 945-946.) The court in Ferraez addressed an argument similar to that made by Rodriguez here, that the evidence in that case showed his intent was not gang related but instead "entirely personal: to quickly get $400 with which to buy a car." (Id. at p. 930.) In rejecting that contention, the appellate court found testimony from a gang expert based upon hypothetical scenarios, combined with evidence that the defendant planned to sell the drugs in another gang's territory and earlier admissions that he was a member of different gang on friendly terms with the other gang, was sufficient for the jury to reasonably infer the crime was gang related. (Id. at p. 931.) Likewise, in People v. Morales (2003) 112 Cal.App.4th 1176, the court of appeal held a jury could reasonably infer both the requisite "benefit/direction/association" element and the specific intent element of the gang enhancement by evidence that a crime was committed by a gang member acting with fellow gang members. (Id. at p. 1198.) Evidence that the defendant intended to commit robberies and intended to commit them in association with persons who he knew to be members of his gang allowed the court to conclude it was "fairly inferable" that he had such specific intent. (Ibid; see also People v. Martinez (2004) 116 Cal.App.4th 753, 756-757, 762 [court found no substantial evidence to support imposition of section 186.30 gang registration requirement on no contest plea of auto burglary where probation report did not identify the defendant's accomplice in the crime as a gang member nor did the report provide any indication the burglary was directed by, associated with, or benefitted the defendant's criminal street gang].)
Here, Detective Govier's opinion was coupled with evidence that both Rodriguez and Cruz were documented Posole gang members and jointly committed the crimes against Anthony and Richard; in Anthony's case with other accomplices observing and assisting them. Rodriguez and Cruz had visible Posole gang tattoos, permitting the jury to infer they were well aware of each other's active gang member status. Anthony confirmed the presence of others in the car used by defendants to follow him. Thus, contrary to Rodriguez's assertion, the jury's true finding was based on more than just the defendants' gang affiliation and Cruz's statement about the Mexican mafia. Richard confirmed that the two defendants acted together in robbing him, and that someone by the name of Jesus had previously lived in his apartment. The detective explained how the types of crimes committed by Rodriguez and Cruz and their features serve to benefit a gang and enhance its reputation. The manner in which the crimes were committed provides sufficient circumstantial evidence, apart from the defendants' mere gang membership and the detective's opinion about gang crimes in general, from which a reasonable jury could conclude Rodriguez's crimes against Anthony and Richard were committed "in association with" or "for the benefit" of the Posole gang, and with the specific intent to promote, further or assist in criminal activity by gang members. Of course, substantial evidence includes circumstantial evidence and the reasonable inferences the evidence allows. (People v. Rodriquez (1999) 20 Cal.4th 1, 11.)
For the same reasons we disagree that Detective Govier gave improper expert testimony that invaded the jury's province on the "ultimate issue" of Rodriguez's intent. Rodriguez focuses on the expert's opinion that the "sole purpose" of their conduct during commission of the crimes was to promote themselves within the gang and promoting the Posole gang, as well as asserted testimony that he " 'believed the defendants intended' " to commit gang crimes. The latter point is a mischaracterization. Detective Govier did not testify to his belief, and a fair reading of the testimony indicates he was referring specifically to the hypothetical scenarios posed to him by the prosecutor. Thus, the detective's testimony does not amount to an expression of his " ' "general belief as to how the case should be decided" ' " as criticized by the court in Killebrew, supra, 103 Cal.App.4th at page 651. Detective Govier's testimony was not like that of the expert in Killebrew, in which the expert presumably addressed the specific defendants' state of mind (see People v. Gonzalez, supra, 38 Cal.4th at p. 946, fn. 3 [discussing uncertainty on this point]) and opined "that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun." (Killebrew, supra, 103 Cal.App.4th at p. 652, fn. omitted.) In Killebrew the expert's testimony provided the only evidence to establish the elements of the gang enhancement. (Id. at p. 658.) But "Killebrew does not preclude the prosecution from eliciting expert testimony to provide the jury with information from which the jury may infer the motive for a crime or the perpetrator's intent; Killebrew prohibits an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial." (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1551, italics added; see also People v. Gonzalez, supra, 38 Cal.4th at pp. 946-947, fn. 3.)
Detective Govier was asked: "And do you have an opinion as to whether the defendants intended to assist, further or promote the criminal conduct by gang members by conducting the activities and actions as described to you?" (Italics added.) The detective responded: "Yes. It's my opinion that they – they did. The fact that they committed the crime, police respond to the crime, word gets around that there was a crime committed, makes it's way back to that neighborhood. [¶] The fact that they were looking for someone in that complex who lived quite close is going to hear about what happened, and it's going to instill fear in the tenants in that apartment complex, having the police respond for a violent crime, and that would benefit the gang, the gang's reputation, the fact that the robbery was committed, there was financial gain and that a vehicle was stolen. [¶] The gang members could then benefit by using that vehicle to commit further crimes." Detective Govier testified his opinion would not change if defendants had not stolen the vehicle because the cellular phone they stole could be exchanged for drugs or cash, which could similarly benefit the gang. Further, nothing in the cited portion of the record shows the detective testified to his "belief."
Further, wehave already explained that there is more evidence than Rodriguez and Cruz's mere gang membership on the issue of their specific intent to assist, further or promote criminal gang conduct. (Accord, People v. Morales, supra, 112 Cal.App.4th at p. 1198; People v. Ferraez, supra, 112 Cal.App.4th at pp. 930-931.) In this way, this case is different from In re Frank S. (2006) 141 Cal.App.4th 1192, in which a minor on a bicycle was stopped for a traffic violation and found with a fixed blade knife, a small bindle of methamphetamine, and red bandana. (Id. at p. 1195.) At a contested jurisdiction hearing, the expert concluded the minor was an active Norteno, looking to the minor's admission to the arresting police officer that he needed the knife for protection against " 'the Southerners' " because they felt he supported northern street gangs and he had friends in the Nortenos gang, as well as his admission that he affiliated with Nortenos during intake at the juvenile detention facility. (Id. at p. 1195.) When asked her opinion about the minor's purpose for the knife, she stated he "possessed the knife to protect himself" and "a gang member would use the knife for protection from rival gang members and to assault rival gangs." (Ibid.) She further testified his possession of the knife benefitted the Nortenos in that it helped provide protection should they be assaulted. (Id. at pp. 1195-1196.)
Pointing out that this testimony "simply informed the judge of her belief of the minor's intent" with his knife possession, the Frank S. court found this to be improper expert testimony on the minor's intent. (In re Frank S., supra, 141 Cal.App.4th at p. 1199.) The court further noted that the prosecution had no other evidence than the expert's testimony regarding gangs in general and her improper opinion; it "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." (Ibid.) The court refused to permit the expert's opinion as to intent without other evidence so as to prevent the statute from being used for purposes beyond the Legislature's intent, and concluded that the court's true finding on the section 186.22 gang enhancement allegation lacked substantial evidence. (Ibid.) Frank S. does not compel us to reject Detective Govier's testimony, which was based upon proper hypotheticals, or the jury's true finding on the section 186.22 gang enhancement allegation in this case.
DISPOSITION
Rodriguez's conviction for carjacking (Pen. Code, § 215, count 3) and the count 5 conviction for felony false imprisonment (Pen. Code, §§ 236, 237, subd. (a)) are reversed. The superior court is directed to amend the abstract of judgment accordingly and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J. McINTYRE, J.