Opinion
G044494 Super. Ct. No. 08CF1285
12-13-2011
THE PEOPLE, Plaintiff and Respondent, v. KYLE MARTIN BAUGHMAN, Defendant and Appellant.
James M. Crawford for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed.
James M. Crawford for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Kyle Martin Baughman appeals from a judgment after a jury convicted him of conspiracy to commit robbery, robbery, carjacking, and street terrorism, and found true he committed the offenses for the benefit of a criminal street gang. Baughman argues: (1) insufficient evidence supports his conviction for carjacking and the jury's findings he committed the offenses for the benefit of a criminal street gang; and (2) the prosecutor committed misconduct. We disagree with his contentions and affirm the judgment.
FACTS
One early December 2006 morning, Daniel Licona was walking towards his car in the underground garage of his apartment complex in the City of Santa Ana. Marco Perez approached Licona and asked for a cigarette. When Licona stopped 14 feet from his car, Perez, Baughman, and Hugo Palacios attacked Licona and demanded his money. The conspirators hit and kicked Licona on his head, stomach, and back. They took Licona's wallet, which included $700 in cash and two checks totaling $900, his cellular telephone, and his car keys, which he was carrying in his hand. The men got into Licona's car, and Licona went back to his apartment and called the police.
Police officers found Licona's car parked in another part of the garage. The confederates could not exit the garage because they did not have the garage key card to open the garage gate. Officers obtained a copy of the security camera surveillance footage from the apartment complex manager. The manager told officers there was gang graffiti on the apartment complex dumpster. Police officers showed Licona a six-pack photographic lineup and he identified Perez as resembling the person who asked him for a cigarette. Licona was unable to identify anyone else.
A crime scene investigator recovered DNA from Licona's car and wallet. Forensic specialist Edward Buse determined Baughman's DNA was on the car's steering wheel.
An amended information charged Baughman with conspiracy to commit a robbery (Pen. Code, §§ 182, subd. (a)(1), 211) (count 1), second degree robbery (§§ 211, 212.5, subd. (c)) (count 2), carjacking (§ 215, subd. (a)) (count 3), and street terrorism (§ 186.22, subd. (a)) (count 4). The amended information alleged Baughman committed counts 1, 2, and 3 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The amended information also alleged he suffered two prior convictions resulting in prison terms and he had not remained free of custody (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code.
At trial, the prosecutor offered the testimony of Officer Manuel Arzate, an expert in criminal street gangs. Arzate testified he reviewed the security camera surveillance footage and recognized Baughman based on his past contacts with him. Arzate added he recognized Palacios, who he knew to be an active participant in "Los Wickeds" (the Wickeds) and went by the moniker "Dreamer," and Perez, a "Walnut Street" gang member, from monitoring Palacios's MySpace page. He explained Perez approached Licona followed by Baughman and then Palacios.
After detailing his background, training, and experience, Arzate testified concerning the culture and habits of traditional, turf-oriented Hispanic criminal street gangs. Arzate testified to the following: gang members commit violent acts to earn respect in the gang and the community; gang members brag about their crimes to other gang members to earn respect in the gang; gang members demonstrate gang membership by among other things getting gang tattoos; gang members create gang graffiti to announce the gang's claimed territory; gang members commit crimes only with other gang members because they trust each other to not discuss the crime with law enforcement and they provide backup for each other; gang members commit crimes outside of their claimed gang territory to expand their territory; and gang members share the proceeds of criminal enterprises with fellow gang members.
Arzate testified he was familiar with the Wickeds through his training and his investigation of crimes in the City of Tustin and neighboring cities. Arzate explained how the Wickeds formed, its claimed territory (Tustin), its ally ("Lyon") and rivals ("Los Crooks" and "K.P.C."), its common sign or symbol ("Los Wickeds," "Los Malvados," "'A Streeters,'" "Calle Alliance," "Alliance Street," "L.W.," and "L.W.R."), its color (blue and gray), its membership (more than 10 members), its primary activities (burglary, drug sales, firearm possession, and felony vandalism), and its criminal history (February 2006-Salvador Arvizup-robbery, and February 2006-Enio Hernandez-possession of methamphetamine for sale).
Arzate testified he had five contacts with Baughman, whose monikers were "Sicko" and "Wacko," and investigated Baughman's gang background in preparation for his testimony. Arzate stated Baughman had approximately 40 contacts with law enforcement officers between 1997 and 2008, 27 of which were in the Wickeds claimed territory and 13 outside its territory, occasionally in the company of other Wickeds' gang members. Arzate explained Baughman had five Street Terrorism Enforcement and Prevention Act (STEP) notices in June 2003, May 2004, two in November 2006, and March 2008. Arzate added that in September 2007, Baughman admitted to a law enforcement officer he was a member of the Wickeds and his moniker was "Sicko." Arzate said Baughman had numerous gang tattoos on his head, back, stomach, and legs representing his allegiance to the Wickeds. He added Baughman possessed photographs and writings depicting the Wickeds' symbols, similar to the gang graffiti found at the apartment complex, demonstrating he was a member of the Wickeds. Arzate opined Baughman was an active participant in the Wickeds at the time of the offenses based on his gang tattoos, prior contacts with law enforcement, indicia of gang membership found at his home, his self-admissions, and the facts of the case. The parties stipulated that in June 2002 and April 2007 Baughman admitted under penalty of perjury he was an active participant in the Wickeds.
A STEP notice is a document a police officer uses to record a contact with a possible gang member. The STEP notice includes the details of the contact and the person's physical characteristics. The STEP document also notifies the person that the gang the person is affiliating with is a criminal street gang and notifies the recipient the gang commits certain crimes.
Based on a hypothetical mirroring the evidence in the case, Arzate opined the offenses were committed to further or assist criminal conduct by gang members and for the benefit of and to promote a criminal street gang. Arzate explained the gang benefitted from the offenses in tangible and intangible ways. He stated the gang members and the gang obtained money and a cellular telephone and the gang can use the proceeds of the crimes to commit additional crimes. He added the offenses increased the gang member's status in the gang because the gang member is committing crimes outside the gang's claimed territory and increased the gang's status in the community because the gang is expanding its territory. Finally, he stated the offenses were done in association with the gang because there were two or more gang members working together to commit the offenses. On cross-examination, Arzate admitted no one claimed gang membership, no one engaged in a gang hit up, no one wore gang colors, and no one exhibited any gang tattoos. He also admitted there was no evidence Baughman bragged about committing the offenses to his fellow gang members or shared the proceeds of the offenses with them.
Baughman testified on his own behalf. Baughman explained he was "jumped" into the Wickeds in 1998 or 1999 and he was addicted to drugs. Baughman admitted to committing the crimes with "Michael" and "David" but stated they were not gang members. He claimed they robbed Licona so he could buy drugs for his personal use. Baughman explained that when he committed the robbery he wore clothes, a hat, and gloves that would cover his gang tattoos because he did not want anyone to know he was a gang member. He did not brag to his fellow gang members about the crime or share the proceeds of the crime with them; he used the money to buy drugs. Baughman admitted he was an active participant in the Wickeds at the time of the offenses but claimed he committed the offenses for his own benefit and not for the benefit of the gang.
On cross-examination, Baughman testified that three hours before the offenses the men agreed to and devised a plan to rob somebody. He said "David" was supposed to distract the victim so he could attack him while "Michael" stayed behind. He stated that after he hit and kicked Licona, he took Licona's car keys, walked to and started the car, and when he saw Licona fighting back, he got out of the car and hit Licona again. He stated that if a gang member told police about other gang members who committed a crime or did not share the proceeds of a crime, the gang member could be assaulted.
During closing argument, defense counsel argued: "And we get to the carjacking. Now, this is where that legalese part comes into play. And we all know that a crime occurred. The question is what crime occurred. It is complicated. They use specific words for specific reasons. Why the Legislature comes up with these definitions, I don't know, but they can do [sic]. And these are the words -- these are the things we have to go through." Defense counsel then discussed the elements of carjacking, focusing on the "immediate presence" element.
In rebuttal, the prosecutor stated: "I want to leave you an example of how legalese can come together with common sense, okay, because I think it's very appropriate in this case. If someone were to ask you hey, what state is this[?] I don't have all the information, but I can tell you that it boarders [sic] the Pacific Ocean, on the west, and it boarders [sic] the state where you can win a lot of money on the east. And there's some cities that I know that are there, there's a city called L.A., I don't know the full name, but I know that's in the north of the state, and I know there's a city called S.F. that's somewhere south of the state. And it's the home of Disneyland. Using your common sense, you know exactly what that state is; right? Without a doubt. Beyond a reasonable doubt. Use your common sense. You know what it is. It's the State of California, right? But what do you have. You have some facts that you know are true, California is bordered by the Pacific Ocean. It's bordered by Nevada which contains Las Vegas, a city where you can win a lot of money. There's [sic] some incomplete facts. I told you that there's a city called L.A., didn't give you the full name, but you know what it is. I told you there's a city called S.F., didn't give you the full name, but you know what it is. And also there's [sic] some incorrect facts. L.A. is not in the north. It's actually in the south and San Francisco is actually in the north. It's not in the south. Using your common sense, even if you have some incomplete facts you have some complete facts and you have some facts that are actually incorrect, you can still use your common sense to come to a conclusion as to what something is and as to what happened. And I think that's very appropriate for this case. [¶] There are some facts that are incomplete, there are some facts that are true, but I think using your common sense and you look at all the facts it's very easy for you to come to a reasonable conclusion and the only conclusion in this case is that [Baughman] is guilty."
The jury convicted Baughman of all counts and found true all the enhancements. After the trial court found Baughman suffered two prior convictions and denied his new trial motion, the court sentenced him to prison for 15 years to life on count 3. As to the remaining offenses and enhancements, the court either ran them concurrently or stayed them pursuant to section 654.
DISCUSSION
I. Sufficiency of the Evidence
"In considering a challenge to the sufficiency of the evidence . . . , [the appellate court] review[s] the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] [It] presume[s] every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
A. Carjacking
Baughman contends insufficient evidence supports his carjacking conviction because there was no evidence he intended to take and took Licona's vehicle from his immediate presence. We disagree.
Section 215, subdivision (a), states: "'Carjacking' is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear."
In People v. Medina (1995) 39 Cal.App.4th 643, 646-647 (Medina), defendant's accomplice lured the victim into a motel room. There defendant and accomplices bound the victim, took his car keys, and then took his car. Defendant challenged his conviction for carjacking, arguing that "actual physical proximity of the victim to the vehicle is required." (Id. at p. 649.) The court explained a vehicle is within a person's immediate presence for purposes of carjacking if it is sufficiently within his control so that he could retain possession of it if not prevented by force or fear. (Id. at p. 648.) The court added, "[section 215] does not require that the victim be inside or touching the vehicle at the time of the taking." (Id. at p. 650.) The Court of Appeal rejected defendant's argument, explaining that the "only reason [the victim] was not in the car when it was taken and this was not a 'classic' carjacking, was because he had been lured away from it by trick or device." (Id. at pp. 651-652.)
In People v. O'Neil (1997) 56 Cal.App.4th 1126, 1128-1129 (O'Neil), defendant entered the victim's truck and began to back it out of the victim's driveway. The victim ran outside and confronted defendant to stop defendant from stealing the truck. Defendant ignored the victim and drove off in the truck. Meanwhile, the victim jumped in the truck bed. After defendant repeatedly yelled at the victim to get out of the truck bed, the victim relinquished his truck to defendant out of fear of being harmed. Relying on Medina, the court stated, "[s]ection 215 'does not require that the victim be inside or touching the vehicle at the time of the taking.' [Citation.]" (O'Neil, supra, 56 Cal.App.4th at p. 1131.) The court held there was sufficient evidence of a carjacking, explaining that, "Assuming defendant's initial taking of the car constituted a mere vehicle theft, that theft became a carjacking once defendant resorted to the use of fear to retain possession of the truck." (Id. at p. 1132.)
In People v. Hoard (2002) 103 Cal.App.4th 599, 602 (Hoard), defendant entered a jewelry store and ordered two employees to give him the keys to the jewelry cases and to the car belonging to one of the employees. The employees complied and were then directed into a back room and bound. (Ibid.) Defendant took jewelry from the cases and the employee's car. (Ibid.) Relying on Medina, the court stated the victim need not be physically present in the vehicle when the confrontation occurs. The court affirmed defendant's carjacking conviction by explaining: "Although [the employee] was not physically present in the parking lot when [defendant] drove the car away, she had been forced to relinquish her car keys. Otherwise, she could have kept possession and control of the keys and her car." (Hoard, supra, 103 Cal.App.4th at p. 609.)
In People v. Coleman (2007) 146 Cal.App.4th 1363, 1366, a shop owner drove his truck to work in the morning, put the truck keys in the shop's back work area, and drove away in a work vehicle. While the owner was away, defendant entered the shop, pointed a gun at the office manager, and told her to give him the keys to the truck. (Ibid.) The office manager walked to the back of the shop, grabbed the keys to the truck, and gave them to defendant. (Ibid.) A jury convicted defendant of robbery and carjacking. (Id. at p. 1365.) The Court of Appeal reversed the conviction for carjacking. (Id. at p. 1374.) Although the court "acknowledge[d] that a carjacking may occur where neither the possessor nor the passenger is inside or adjacent to the vehicle," the circumstances in this case were "simply too far removed from the type of conduct that [the carjacking statute] was designed to address." (Id. at p. 1373.) The court reasoned the office manager "was not within any physical proximity to the [truck], the keys she relinquished were not her own, and there was no evidence that she had ever been or would be a driver of or passenger in the [truck]." (Ibid.)
In People v. Gomez (2011) 192 Cal.App.4th 609, 614-615 (Gomez), the victim was an apartment complex maintenance worker who lived in the complex and was patrolling the complex very early one morning when he saw a car with a group of men drive up and stop. The men attacked the victim and during the assault took the keys to his truck, which was parked about 10 feet away from his apartment. The men fled in the car in which they arrived. Approximately 10 to 20 minutes later, the victim from his apartment window saw the men return. After two of the men unsuccessfully tried to enter his apartment, they stole his truck. Defendant argued there was insufficient evidence he intended to take the vehicle and that he took it from the victim's immediate presence. (Id. at p. 618.) The court stated, "The requisite intent—to deprive the possessor of the possession—must exist before or during the use of force or fear. [Citations.]" Citing to Medina, the court stated: "A vehicle is within a person's immediate presence for purposes of carjacking if it is sufficiently within his control so that he could retain possession of it if not prevented by force or fear. [Citations.] It is not necessary that the victim be physically present in the vehicle when the confrontation occurs. [Citation.]" (Id. at p. 623.)
The Gomez court reasoned that although there was no evidence defendant intended to take the truck before or during the assault, there was evidence that when the men returned, the victim was afraid the men were going to break into his apartment and assault him before they took his truck. (Gomez, supra, 192 Cal.App.4th at pp. 619, 623.) After discussing Medina, Hoard, and Coleman, the Gomez court distinguished Coleman and reasoned the victim's keys were taken directly from him and he was 10 feet away from his truck when the attackers returned and with force took his truck. (Gomez, supra, 192 Cal.App.4th at p. 625.)
With respect to his first claim, the evidence demonstrated Baughman hit and kicked Licona, demanded his money, and took his wallet and car keys. On cross-examination, Baughman stated that after he got the car keys, he walked to the car and started it, but when he saw Licona resisting Perez and Palacios, he got out of the car and assaulted Licona further. This was sufficient evidence for the jury to conclude that Baughman intended to deprive Licona of his vehicle during the use of force.
As to his second claim, it is clear, based on established case authority, a person does not need to be inside or touching his or her vehicle to be a victim of carjacking. All that is required is the vehicle be sufficiently within the victim's control so that the victim could retain possession of the vehicle if not prevented by force or fear. Here, the evidence established that Licona was in his apartment complex's underground parking structure when Perez approached Licona and asked for a cigarette in an attempt to distract Licona so Baughman and Palacios could attack him. When Licona stopped, he was 14 feet from his car. Based on O'Neil and Hoard where the victim's were inside but nearby, Licona was steps away from his car, and he certainly would have retained possession of his vehicle had Baughman, Perez, and Palacios not assaulted him.
B. Street Gang Enhancements
Baughman contends there was no evidence he committed counts 1, 2, and 3 "for the benefit of, at the direction of, or in association with any criminal street gang" or "with the specific intent to promote, further, or assist in any criminal conduct by gang members." He also claims Arzate's testimony was conclusory because he relied on unreliable hearsay. Neither contention has merit.
1. Sufficiency of the Evidence
"[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished . . . ." (§ 186.22, subd. (b)(1).)
Albillar, supra, 51 Cal.4th at pages 52-53, is instructive. In that case, defendants were twin brothers and their cousin, and all were members of the same gang. While one of the twins was kissing a 15-year-old girl in defendant's bedroom, the other twin and the cousin went into the room without the girl's consent, and each of the three raped her in turn. During the first rape, the other men assisted the rapist by helping to hold the girl's legs apart. The girl originally did not report the rape because she knew defendants were gang members and was afraid they would come after her family.
The Albillar court stated that although not every crime committed by gang members is related to a gang for purposes of the first prong, a crime can satisfy the first prong when it is committed in association with the gang, or when it is committed for the benefit of the gang. (Albillar, supra, 51 Cal.4th at p. 62 ["'it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang'"].) The court explained "in association with a gang" can be established by evidence defendants came together as gang members to carry out their crimes in concert. (Id. at p. 62.) And the court opined a gang expert's opinion is admissible as part of the evidentiary showing on how the crimes can benefit the gang. (Id. at p. 63.)
The Albillar court also explained the second prong, which required the defendant commit the gang-related felony "with the specific intent to promote, further, or assist in any criminal conduct by gang members" (§ 186.22, subd. (b)(1)), need not encompass proof the defendant committed the crime with the specific intent to promote, further, or assist other criminal conduct by gang members. Instead, that subdivision "encompasses the specific intent to promote, further, or assist in any criminal conduct by gang members—including the current offenses—and not merely other criminal conduct by gang members." (Albillar, supra, 51 Cal.4th at p. 65.) The court added, "There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members'" (Id. at p. 67.) The court concluded: "In sum, if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Id. at p. 68.)
Baughman's reliance on Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, and Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, to argue section 186.22, subdivision (b), requires evidence of a specific intent to promote further or assist other criminal conduct is misplaced. The Albillar court has rejected those cases' interpretation of section 186.22, subdivision (b)(1), as the Ninth Circuit Court of Appeals recently recognized in Emery v. Clark (9th. Cir. 2011) 643 F.3d 1210, 1215.
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Here, based on the entire record we conclude there was sufficient evidence for the jury to reasonably conclude Baughman committed counts 1, 2, and 3 in association with criminal street gangs and with the specific intent to assist in criminal conduct by gang members. The evidence at trial established Baughman was a self-admitted active participant in the Wickeds at the time of the offenses. Baughman conspired with Palacios, another active participant in the Wickeds, and Perez, an active participant in the Walnut Street gang, to commit a robbery. Baughman testified they devised a plan where Perez would distract Licona so Baughman could attack him and Palacios, his fellow gang member, would provide backup. The men beat and robbed Licona. Baughman absconded with $700 in cash, and Baughman believed Palacios and Perez divided the checks and the cellular telephone. The facts demonstrate and Arzate testified the offenses were done in association with the gang because there were two or more gang members working together to commit the offenses. The totality of the evidence demonstrates this was no frolic or detour unrelated to the gang but instead a criminal venture where gang members in association planned and assisted each other in committing criminal offenses. (Albillar, supra, 51 Cal.4th at p. 62.) Clearly, each shared the specific intent to commit the criminal offenses.
Baughman complains there was no evidence he claimed gang membership, flashed any gang signs or symbols, wore gang colors, or shared the proceeds of the robbery with his fellow gang members. True. And Baughman claimed he spent the money in a drug fueled pizza party with "Javier," "Angela," and "Diane." But Baughman asks us to focus on this evidence and ignore the other evidence detailed above. On appeal, we may not reweigh the evidence and substitute our judgment for the jury's. (Albillar, supra, 51 Cal.4th at pp. 59-60.)
Baughman relies on In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.), to support his claim. In that case, a grocery store manager saw three young men enter the store on a surveillance camera. The men began walking back and forth looking down an aisle. After two of the men left, minor selected a bottle of liquor. The manager left the security office and positioned himself near the exit door of the store. Minor walked to the front of the store and through a check stand carrying the bottle. When the manager approached minor and said, "Give me the bottle," minor struck him with the bottle. (Id. at p. 1353.) Minor ran out the entrance door and to a truck, which he then drove off. (Id. at p. 1354.) During an interview with police, minor indicated his friends did not know he intended on going into the store to take alcohol without paying for it. (Ibid.) The court of appeal concluded there was insufficient evidence to support the street gang enhancement because there was no evidence minor acted in concert with his companions and there was no evidence the manager knew minor or his companions were gang members or associates. (Id. at pp. 1359, 1361.) Daniel C. is inapposite.
As we explain above, Baughman, a self-admitted active participant in the Wickeds at the time of the offenses, committed the offenses with Palacios, a Wickeds gang member, and Perez, a Walnut Street gang member. Baughman admitted the men devised a plan whereby Perez would distract Licona so Baughman could attack him and Palacios would provide backup. This was sufficient evidence for the jury to reasonably conclude Baughman in association with other gang members planned and assisted each of them in committing criminal offenses for the benefit of a criminal street gang.
Recognizing the court affirmed street terrorism enhancements in People v. Olguin (1994) 31 Cal.App.4th 1355, Baughman argues that because in his estimation there was more damning evidence in that case, the evidence must be insufficient here. Nonsense. First, because there may he have more damning evidence in those cases does not mean there is insufficient evidence here. Second, as we explain above more fully, sufficient evidence supports the jury's findings Baughman committed counts 1, 2, and 3 in association with and with the specific intent to assist criminal street gang members.
2. Expert Testimony
Relying on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), Baughman argues Arzate's testimony the offenses increased the reputation of the gang member and the gang and the gang benefitted financially from the offenses was conclusory. We disagree.
"Expert testimony may also be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] Of course, any material that forms the basis of an expert's opinion testimony must be reliable. [Citation.] For 'the law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based.' [Citation.] [¶] So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony." (People v. Gardeley (1996) 14 Cal.4th 605, 618.)
In Alexander L., supra, 149 Cal.App.4th at pages 611-612, the court concluded there was insufficient evidence of a pattern of criminal gang activity where the expert could not explain the source of his information or specifically testify to the gang's criminal primary activities. Here, that was not the case. Arzate testified he had been a police officer for eight years and he was a detective in the gang unit for four years. He detailed his extensive training and experience dealing with criminal street gangs. He had spoken with over 100 gang members, investigated over 100 gang crimes, and testified as an expert 15 times in Orange County. In conducting gang investigations, Arzate explained he speaks with other officers and reviews field identification cards, STEP notices, and criminal conviction records. This evidence is significantly more reliable than the expert testimony in Alexander L. and adequately provides a foundation for Arzate's opinion concerning whether the offenses were committed "for the benefit of, at the direction of, or in association with any criminal street gang" or "with the specific intent to promote, further, or assist in any criminal conduct by gang members."
II. Prosecutorial Misconduct
Baughman contends the prosecutor committed misconduct during closing argument and his defense counsel provided ineffective assistance of counsel for failing to object to the prosecutor's statements. The Attorney General responds Baughman forfeited appellate review of this issue, the argument has no merit, and defense counsel was not ineffective. As we explain below, we conclude Baughman forfeited appellate review of the issue and he was not prejudiced by any error.
"'In order to preserve a claim of [prosecutorial] misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.]' [Citation.]" (People v. Parson (2008) 44 Cal.4th 332, 359.) Here, Baughman concedes his defense counsel did not object to the prosecutor's statements and request an admonition. And he does not argue any objection would have been futile. Therefore, Baughman's claim is forfeited. However, Baughman also asserts his defense counsel was prejudicially ineffective. We will address his claims within that context.
"In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsel's performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsel's performance prejudiced defendant's case in such a manner that his representation 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' [Citations.] Moreover, 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.] If defendant fails to show that he was prejudiced by counsel's performance, we may reject his ineffective assistance claim without determining whether counsel's performance was inadequate. [Citation.]" (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Here, it is not reasonably probable the result of the proceeding would have been different had defense counsel objected to the prosecutor's statements. The prosecutor's statements were in response to defense counsel's comments concerning the carjacking charge and the "legalese" of the carjacking statute. The prosecutor responded to defense counsel's statements by asking the jurors to rely on their common sense in assessing whether the "legalese" of the carjacking statute had been met. The prosecutor's California geography example is another matter. The jury's duty is to decide the facts and impartially apply the law to determine whether a defendant is guilty beyond a reasonable doubt. This solemn duty is not a guessing game, and the prosecutor should not encourage the jury to guess as if they were playing a game of Concentration, where the participants choose cards to try to match pairs to solve a puzzle. Although the prosecutor's California geography example was inappropriate, we cannot conclude he lowered the prosecutor's burden of proof; it was merely a plea to rely on their common sense. The prosecutor's statements were a rebuttal to defense counsel's comments and did not misstate the law concerning the reasonable doubt standard. (People v. Hill (1967) 66 Cal.2d 536, 565 [claim of prosecutorial misconduct where "for the most part, the remarks [of the prosecutor in rebuttal closing argument] constitute reasonable and proper response to defense counsel's closing arguments"].)
Baughman conceded (1) he agreed with his confederates to rob someone, and (2) he assaulted Licona and took his money and car. Baughman also admitted that at the time of the offenses, he was an active participant in the Wickeds. The only issues left for the jury to decide were whether (1) Baughman took the car from Licona's immediate presence, and (2) he committed the offenses in association with and with the specific intent to assist criminal street gang members. As we explain above more fully, there was sufficient evidence to support his carjacking conviction and the jury's findings he committed counts 1, 2, and 3 in association with and with the specific intent to assist criminal street gang members.
DISPOSITION
The judgment is affirmed.
O'LEARY, ACTING P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.