Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF197610F Gerald F. Sevier, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
INTRODUCTION
Appellant/defendant Ricky Lucero (defendant) was convicted of multiple felonies arising from his participation in the armed robbery of a Chevron convenience store in Porterville. He committed the robbery with Francisco Hernandez (Francisco), Benjamin Hernandez (Benjamin), Edward Johnson (Johnson), and Michael Santoya (Michael). Defendant, Benjamin, Francisco, and Johnson were members of the Fresno Bulldogs gang, and Michael used to work at the store. During the robbery, defendant beat the unresisting store clerk in the head with a baseball bat, and defendant and his accomplices stole approximately $160,000 from the store.
Many of the defendants and witnesses in this case are related to each other and/or have the same last name. We will use their first names to avoid confusion.
Defendant, who was 19 years old at the time of the robbery, was convicted of count I, kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1); count II, robbery of the clerk as an employee of the store (§ 211), count III, assault with a firearm (§ 245, subd. (a)(2)); count IV, assault with a deadly weapon, a baseball bat (§ 245, subd. (a)(1)); and count V, conspiracy to commit robbery (§ 182, subd. (a)(1)). He was found not guilty of count VI, robbery of the store clerk.
All further statutory citations are to the Penal Code unless otherwise indicated.
As to all counts, the jury found that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). As to counts I, II, IV and V, the jury found that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). As to counts I, II and V, the jury found that the value of the property taken exceeded $50,000 (§ 12022.6, subd. (a)(1)), and as to counts I, II, and V, the jury found that a principal used a firearm during the commission of the offenses (§ 12022.53, subds. (b) & (e)(1)).
The information jointly charged defendant and his accomplices with the same offenses arising out of the robbery. However, the court granted defendant’s severance motion and he was separately tried. In a separate proceeding, Francisco, Benjamin, and Johnson were convicted of multiple felonies, including robbery and kidnapping for robbery, and the offenses were found to be committed for the benefit of, at the direction of, or in association with a criminal street gang. This court modified their sentences, ordered a second conviction for robbery of the store clerk stricken as a matter of law, and otherwise affirmed their convictions.
Defendant was sentenced to life with a minimum of 15 years before being eligible for parole for count I, kidnapping for robbery, plus consecutive terms of 10 years for the firearm enhancement, one year for the financial loss enhancement, and three years for the great bodily injury enhancement. The court stayed the terms imposed for the remaining counts and enhancements.
On appeal, defendant contends there is insufficient evidence to support his conviction for kidnapping for robbery. He also asserts the testimony of the prosecution’s gang expert lacked foundation and should have been excluded. He challenges the sufficiency of the evidence as to the gang enhancement, and argues the gang expert’s testimony was insufficient because it was conclusory, vague, and based on hearsay. He further contends the gang expert improperly testified to inadmissible character evidence. Finally, he argues the terms imposed and stayed for the firearm enhancements must be stricken. We will modify defendant’s sentence and otherwise affirm.
FACTS
Around 9:55 p.m. on Friday, January 25, 2008, Yassen Saeed (Yassen), the manager of the N&S Chevron store near Porterville, was preparing to close the store. Yassen was cleaning the fountain drink area, and his back was to the store’s front door and windows. The store’s front windows faced the parking lot. There were no customers in the store. Yassen’s coworker, David Santoyo (David) was outside, cleaning the parking lot.
Yassen heard the store’s front door open and turned around. Four men ran into the store and rushed up to him. One man held a metallic revolver, another man had some type of gun, and a third man had a baseball bat. Yassen could not see their faces because they were wearing masks and hoods. The men pointed the guns at Yassen’s head, swore and cursed at him, and ordered him to get down to the floor. Yassen immediately got on the floor and did not resist.
The two gunmen ordered Yassen to go to the back of the store. Yassen obeyed and crawled on the floor. The men pushed him to the store’s rear storage area, which was not open to the public. Yassen did not hear the men shout any gang names or gang slogans. When Yassen reached the back of the store, his last memory was seeing the “guy with … the baseball bat.” Yassen was hit in the head with the baseball bat and passed out.
When Yassen regained consciousness, he was disoriented and lying in a pool of blood at the back of the store. Yassen discovered that $800 of his own money was missing from his back pocket. The store’s office was adjacent to the storage room, and the office door had been closed and locked. The store kept a large amount of cash in that office on Friday nights to cash customers’ payroll checks for the weekend. Yassen discovered the office door was open, the safe and cabinet which contained the store’s cash were also open, and over $160,000 had been taken. The store’s cash registers had not been disturbed.
The parking lot
At the time of the robbery, David, Yassen’s coworker, was cleaning the parking lot and did not realize what was going on in the store. However, David noticed a silver Mitsubishi was parked behind the store. The driver was wearing a hooded sweatshirt and was the only person in the car. One or two minutes later, David saw the car drive away from the store at a slow speed. The car’s headlights were not on. The car passed by David as it left the parking lot, and David saw two or three more people in the car.
At about the same time, a customer drove up to the store and saw a silver Mitsubishi “flying out” of the parking lot. The customer and David found Yassen walking around outside, and he was “busted up” and bleeding.
Yassen suffered a skull fracture and he was in the hospital for one week. He repeatedly suffered seizures as a result of his head injuries. He was placed on various medications, but his seizures were so serious that he could not return to work.
The investigation
The investigating officers found a pool of blood in the store’s rear hallway. The distance from the fountain drink area to the pool of blood was 33 feet.
The store had a closed-circuit videotape system with multiple cameras. Fidel Saeed (Fidel), Yassen’s cousin, was also a clerk at the store, and he watched the surveillance videotape of the robbery. Fidel immediately recognized one of the masked robbers as Michael Santoyo (Michael), David’s brother and the store’s former assistant manager, based on the distinctive way Michael walked and carried himself. Michael’s face was partially visible above his mask.
Yassen and Michael had been good friends, and they had worked together at the Porterville store for several years. About a month before the robbery, Michael borrowed the store’s truck and wrecked it, and he did not return to his job. David continued to work at the store after Michael left.
Yassen testified that Michael knew the store kept a large amount of cash in the back office on Friday nights. The office door was usually locked, but Yassen and Michael kept a little knife next to the door, on top of the power box, and they used that knife to pry open the door if they forgot the key.
Michael voluntarily testified as a prosecution witness, without a plea agreement, even though charges were still pending against him. Michael had been offered a plea agreement with a maximum of 22 years and turned it down.
Michael testified for the prosecution and admitted his involvement in the robbery. Michael testified he told his girlfriend, Felecia Hernandez (Felecia), about the large amount of money that was kept at the store to cash checks. He also told Felecia that the store owed him. Felecia told her brother, Francisco, about the cash. Francisco said he was going to get his friends together to rob the store and asked Michael more questions about the store.
Michael testified the robbery was Felecia’s idea. Felecia kept telling Michael that Francisco would do something bad to him if he did not go through with the robbery. Michael warned Francisco that he would be recognized on the store’s video cameras since he used to work there. Francisco told Michael not to worry, and that he had people who would take care of Michael if he was locked up.
Michael testified he was not a member of the Fresno Bulldogs gang. However, Michael knew that Francisco was a member of a gang and he was known as “Bandit.” Michael was afraid of Francisco because of things he had heard about Francisco and his friends.
On the day of the robbery, Francisco repeatedly called Michael and told him to pick up defendant. Michael knew defendant used to date Felecia, and that defendant and Francisco were good friends. Defendant told Michael that they called themselves the “Primos” gang, and defendant had a dog paw tattoo.
Around 8:00 p.m. on the night of the robbery, Michael and Felecia were in Michael’s black car and they picked up defendant. Michael drove Felecia and defendant to the Fresno apartment where Francisco lived with his girlfriend, Celena Gonzales (Celena). Francisco was there with several other men. Francisco told Michael that they were going to rob the store that night.
Michael testified he got into his black car with Felecia. Francisco, defendant, Benjamin, and Johnson got into Celena’s silver car. Francisco had a silver revolver. Michael drove to Porterville, and the silver car followed him. Michael knew he was going to Porterville to rob the store with Francisco, defendant, Benjamin, and Johnson. Michael testified they used two cars so they could use one car for the robbery, and the other car for the escape.
Michael stopped at an orange grove about a half mile from the store, and the other men arrived in the silver car. Michael, defendant, Francisco, Benjamin, and Johnson got into the silver car and headed to the store, while Felecia stayed behind in the black car. Michael saw a baseball bat inside the silver car.
Michael drove the silver car to the store and parked on the side of the building. Both Francisco and Johnson had handguns, and defendant had the baseball bat. Michael did not realize his brother David was working at the store that night.
Michael stayed outside the store while Benjamin, Francisco, defendant, and Johnson entered the front door. Michael hesitated and then he entered the store. Michael wore a mask but it did not completely cover his face. Michael walked to the back of the store and found Yassen lying on the hallway floor, moaning and holding his head. Francisco and defendant were standing next to Yassen, and Francisco had a handgun. One of the men told Michael to get the money. Michael walked past Yassen, used the knife to open the office door, and took the cash from the office.
Michael walked out of the store’s back door. Francisco pulled up to the back door in the silver car and Michael got in. Defendant, Benjamin, and Johnson were in the store for a few more minutes, and then they walked out of the back door and got into the car. Francisco drove away from the store at a fast speed.
Michael testified Francisco drove the silver car to meet Felecia, who was still waiting in the black car. Francisco put the masks, guns, and cash in the trunk of the black car. Francisco told Felecia to leave in the silver car. Michael and the men got into the black car, and Francisco told Michael to take back roads to Fresno.
Michael drove the men to defendant’s house in Fresno, and Felecia met them there. Francisco took the guns and money out of the car, and everyone went into defendant’s house. Michael testified that defendant’s girlfriend was also there. Francisco counted the robbery money in the presence of defendant, defendant’s girlfriend, Felecia, Benjamin, and Johnson. Michael thought they stole about $130,000. Francisco divided the robbery proceeds and gave $20,000 to each man, including himself. Francisco gave the rest of the money about $50,000 to Michael and Felecia.
Later that night, Felecia dropped off some of the money with her cousin. Michael and Felecia kept the rest of the money and drove to Stockton. However, Michael started to receive cell phone calls and text messages from other store employees who said they knew Michael committed the robbery. Michael learned the police were looking for them.
Michael testified that he decided to call the police. Felecia told Michael to say they were in Sacramento and were not involved in the robbery. Michael and Felecia separately met with the police. Michael initially told Detective Pinon that he was not involved in the robbery and gave the story that Felecia had suggested. Pinon advised him that Felecia had already revealed the names of the robbery participants and they were all in custody. Michael confessed to his involvement.
Felecia pleaded guilty to kidnapping and conspiracy to commit robbery, with a maximum term of nine years, and she agreed to testify truthfully for the prosecution pursuant to her plea agreement.
Felecia also testified for the prosecution and offered a slightly different story. Felecia denied pressuring Michael into participating in the robbery or forcing him to tell the others about the money at the store. Felecia testified that Michael told her the Chevron store had lots of money on Fridays and Saturdays, and they “owed” him. Felecia asked Michael if he was sure that he wanted to do it. Michael said that if he could not get Francisco and his friends to perform the robbery, he would find someone else to do it.
Felecia knew Francisco and defendant were friends. She knew Francisco was a member of the Fresno Bulldogs, he had gang-related tattoos, and he was called “Strange One” and “Bandit.” Felecia had dated defendant several years earlier, and she suspected defendant was a member of the Fresno Bulldogs because he had a “Bulldogs” tattoo on his hand. Defendant used the nicknames “Mix” and “Little Loony.” Johnson was Felecia’s cousin.
Felecia testified the group planned to commit a robbery in Porterville instead of Fresno, because she was worried their group would be known in Fresno. They planned the robbery a few hours before it happened when they were at Celena’s house in Fresno. Celena, Michael, Benjamin, and another man were at the house. Felecia testified she stayed in the house while the others went outside to talk about the robbery. Defendant was not initially there, but he arrived later.
After the meeting at Celena’s house, Felecia drove Michael’s black car to Porterville, and defendant, Michael, Francisco, Benjamin, and Johnson followed in a silver car. They followed Michael’s directions and met in a certain location away from the store. The men left in the silver car and Felecia knew they were going to rob the store. She stayed behind and waited in the black car.
After the robbery, the men met Felecia and they exchanged cars. Felecia drove the silver car back to Fresno and met the men at defendant’s house. Defendant, Johnson, Benjamin, and Michael were there. Michael had the money from the robbery, but Felecia claimed she was not present when the money was counted and distributed.
Felecia and Michael left defendant’s house, and she gave some of the money to her cousin. Michael became nervous when he received a telephone message from “his old boss” that the police wanted to talk to him. Michael told Felecia what to say if they were caught. Felecia told him that they needed to get rid of the money. Felecia put the money in a purse and hid the purse in the bushes.
Felecia admitted that she initially lied to Detective Pinon when he asked her about the robbery. Felecia decided to tell the truth after she learned the store clerk had been injured and could die, and that she could be charged with murder and go to prison. She identified defendant, Francisco, Johnson, Michael, and Benjamin as the robbers. Felecia also showed the officers where she threw the bag of money in the bushes, and it contained nearly $11,000.
Celena’s trial testimony
Celena was Francisco’s girlfriend. Celena testified that defendant, Francisco, Benjamin, Johnson, Michael, and Felecia met at her apartment on the evening of the robbery. The group left in a black car and in Celena’s silver car. Celena thought they were going to a party. Felecia drove the silver car, and Celena thought defendant was in one of the vehicles. Celena did not go with them.
Detective Pinon testified that when he initially interviewed Celena, she did not mention that defendant was at her house on the night of the robbery. Celena said she did not know anything about the robbery until she found out her silver car was in a tow yard. (RT 789-790)
The searches and arrests
Michael and Felecia directed the officers to the Fresno residences associated with defendant, Benjamin, and Johnson, and officers searched those locations. The officers found large amounts of cash and gang paraphernalia at the homes associated with Johnson and Benjamin.
At 4:30 a.m. on January 27, 2008, just two days after the robbery, officers searched the residence of defendant’s grandmother. Defendant lived there and was taken into custody. The officers found several pieces of evidence in a particular bedroom: a Fresno Bulldog T-shirt, baseball cap, and a blanket displayed on the wall; types of gang writing; a baseball bat; and two crowbars. The Bulldog apparel and writings were consistent with gang indicia. The officers also found over $15,000 hidden in the same bedroom. Some of the cash was in a wallet, which contained defendant’s identification card. The officers found additional cash in a dresser, along with a letter addressed to defendant.
After the robbery, Francisco, Celena, and Johnson escaped to Texas, and they lived there for about one month. Francisco and Johnson were later arrested in Texas.
DEFENDANT’S POSTARREST INTERVIEW
Several hours after defendant was arrested, Detective Camacho conducted a tape-recorded interview with him. Defendant was advised of and waived his constitutional rights and agreed to answer questions. The audiotape was played for the jury.
Detective Camacho advised defendant about the facts of the robbery. Defendant initially denied any involvement and asked if someone was “pointing fingers” at him. Camacho explained he had some information that defendant was at the store. Camacho asked if he had friends named Benjamin, Francisco, and Johnson. Defendant said he recently met Benjamin, he “barely” knew Johnson, and he knew Francisco better.
Camacho asked defendant if he was “a bulldog, ” and defendant said yes. Defendant said his nickname was “Little mini boy.”
Camacho asked defendant if Francisco gave him some cash to hold. Defendant said Francisco gave him a little money. Camacho advised defendant that the officers found over $10,000 at his grandmother’s house. Defendant said “a homie” gave him that money about a week ago.
Camacho advised defendant about the circumstances of the robbery, the manner in which the clerk was beaten, and the clerk’s serious injuries. Camacho asked defendant if he went to the store just for the money or to hurt someone. Defendant replied, “I didn’t try to kill nobody.” Camacho asked defendant how many times he hit the clerk with the baseball bat, and advised him the entire incident was on the store’s surveillance videotape. Defendant replied, “Only like two, three, ” and “I was trying to aim for his back.” Defendant said he did not intentionally hit the clerk in the head, and he did not try to kill him. Defendant thought the clerk moved and that is why he was hit in the head.
Camacho asked defendant why he was involved in the robbery. Defendant said some guy said “it was easy, ” but he did not know who said that, and he did not know anyone named Michael. Defendant said he went to Porterville in a silver car. Defendant said he hit the clerk with the baseball bat when they were in the back of the store, and another guy took the money. They left the store in the silver car.
Defendant asked Camacho, “Who ratted me out?” Camacho would not tell him, but urged defendant to identify the other suspects because they were not covering up for him. Camacho asked defendant to identify the driver of the getaway car. Defendant said he did not know if “Felecia’s man” was driving the car. Camacho asked defendant if he was afraid of Francisco, and defendant said no. Camacho again asked defendant who was driving the getaway car, and defendant refused to say. Defendant admitted they switched cars with Felecia they returned to Fresno in a black car.
Defendant eventually changed his story about the money. He admitted they went to his grandmother’s house after the robbery. He took about $17,000 as his cut, and that was the cash the officers found at his grandmother’s house.
Camacho asked defendant if Felecia was with them during the robbery. Defendant refused to answer. Camacho asked defendant how he would plead if he was charged with robbery, and defendant said he was guilty.
Camacho testified that defendant was very polite, calm, and respectful during the interview. Camacho showed defendant a still photograph from the store’s surveillance videotape, which depicted one of the robbers holding a baseball bat. Defendant said that he was the person with the baseball bat. Defendant refused to identify the other suspects. Camacho asked defendant if he was interested in writing a letter of apology to the person who was hurt during the robbery. Defendant said yes. Defendant wrote a note “to whom it may concern, ” apologized for his role in the robbery, apologized for hurting someone so seriously, wrote that he did not mean to hurt him, and he signed it.
TESTIMONY OF PROSECUTION’S GANG EXPERT
We will extensively review Detective Yandell’s testimony because defendant raises numerous challenges to the admissibility and foundation for his opinions about the Fresno Bulldogs.
Tulare County Sheriff’s Deputy Yandell testified as the prosecution’s gang expert. Yandell had been a peace officer for nine years, and a detective with the sheriff’s department Gang Violence Suppression Unit for a little less than two years. He was responsible for investigating gang aspects of criminal cases in Tulare County, participating in proactive patrols in areas with high gang violence, contacting and identifying gang members, debriefing gang members about their criminal activities, monitoring inmate calls from the jail and gang Internet sites, and monitoring gang trends in Tulare County and surrounding counties.
Yandell was a member of Tulare County’s multiagency gang enforcement team, the California Gang Investigators Associations, and the Tulare County Gang Task Force. He shared information with other gang experts and kept up to date with the habits of gang members in the area.
Yandell had participated in investigations into gang-related offenses including murder, attempted murder, felony assault, vandalism, drug sales, and jail assaults. He had authored two search warrants and participated in executing over 25 search warrants for gang-related evidence.
Yandell had taken classroom courses and video training on northern criminal street gangs, Hispanic gangs, white power gangs, prison gangs and their street influence, Asian gangs, and the Fresno Bulldogs. He also worked at the main jail for four years, and had gang-related experiences there by interacting with and classifying gang members in a custodial setting. He believed gang members were more honest about their membership while in custody because of the implications of being housed with rival gang members.
Yandell had qualified as a gang expert ten times in Tulare County and authored at least 12 opinions in the last two years as to whether particular criminal activity was performed in association with, or for the benefit of, a criminal street gang. He had prepared written and verbal expert opinions in over 20 gang cases. He had never offered an opinion that a crime was not gang-related.
Yandell’s testimony about the Fresno Bulldogs
Yandell testified his primary focus was on the northern and southern gangs, which operated in Tulare County. However, he had some experiences with the Fresno Bulldogs throughout his career. The Bulldogs operated in the city and unincorporated areas of Fresno, but there were a few members who came through Tulare County. He came into contact with members of the Fresno Bulldogs when he worked at the jail. He also reviewed police reports about the criminal activities of the Fresno Bulldogs in Tulare and Fresno Counties.
Prior to Yandell’s work in this case, he had conducted investigations in two other cases involving the Fresno Bulldogs, and interviewed about 20 members of the gang. He had investigated a jail assault involving members of the Fresno Bulldogs, but he did not testify in that case because the defendant entered a plea. In February 2008, he investigated Felipe Rivera, an admitted member of the Fresno Bulldogs, who was arrested for possession of narcotics for sale in Goshen.
In preparation for the trial in this case, Yandell received two hours of in-person “block training” from two officers with the Fresno County Sheriff’s Department MAGEC team, who were certified as experts on the Fresno Bulldogs and participated in preparing the civil injunction against that gang. He did not receive any training from former members of the Fresno Bulldogs to prepare for this case.
Yandell testified about the creation of the Fresno Bulldogs, which was the result of a dispute within the Nuestra Familia prison gang in the late 1960’s and early 1970’s. A war broke out within Nuestra Familia, which spilled out of the prisons and into the streets of Fresno. The breakaway group originally called themselves “the F14.” In the late 1970’s, the group successfully became a separate entity and changed its name to the Fresno Bulldogs. The Bulldog gang was slightly different from other gangs because it was not associated with either the northern or southern structure, it was not allied with any other gang, and it considered both the northern and southern gangs as enemies. The Bulldogs were also different because there was no official hierarchy of shot callers, but there were still informal leaders who gained respect within the subsets.
Yandell explained there were an estimated 5, 300 active members of the Fresno Bulldogs in Fresno County, with an additional 10, 000 associates. The Fresno Bulldogs had started moving out of Fresno County and into Tulare County because of the gang injunction. There were under 20 active members of the Fresno Bulldogs in Tulare County.
The Fresno Bulldogs claimed the color red, but they were not loyal to the Nortenos. The Bulldogs used the insignia from Fresno State University, and common signs and tattoos included dog paws and bulldog faces from Fresno State apparel.
Yandell explained the California Department of Corrections (CDC) classified the Fresno Bulldogs as a “disruptive group” for housing purposes, which was “one step shy of a prison gang.”
Yandell testified there were over 40 subsets, cliques, and subcliques within the Fresno Bulldogs, based on specific geographic areas and turfs. These subsets included the McKenzie Street Dogs, Daisy Park Bulldogs, and the Primos. All these subsets claimed allegiance to the Fresno Bulldogs as their umbrella organization. Members of the various subsets associated with each other, on the street and in prison, and showed the same colors and symbols as the Fresno Bulldogs.
Yandell testified the primary activities of the Fresno Bulldogs were crimes such as murder, attempted murder, theft, robbery, kidnapping, and drug sales. Yandell testified about other offenses committed by members of the Fresno Bulldogs, based on his review of law enforcement records and reports from allied agencies; he explained these documents are normally relied upon by gang experts. In February 2006, the Fresno County gang unit executed search warrants for the homes of Saul “Taz” Martinez and Rafael “Shadow” Perez, who were both members of the Fresno Bulldogs. The warrants were for weapons, narcotics, and gang paraphernalia. Martinez was later convicted of violating Health and Safety Code section 11359. Yandell testified the incident involved Fresno Bulldog activity because known gang members were armed and possessed narcotics.
“[Y]ou have known self-admitted gang members with guns, firearms, narcotics, paraphernalia for sales and gang indicia. [¶ ] You have drugs that are being sold, firearms that are being used to protect the gang members while committing crimes, as well as the clout that’s perceived from them having these guns to commit assaults.”
Yandell testified about another incident which fit the pattern of Fresno Bulldog activity. In April 2006, Nelson Mendoza, a known and admitted member of the Fresno Bulldogs, pleaded guilty to burglary, based on an incident where Mendoza and two other known Bulldogs burglarized a vehicle. They had specific assignments to perform the job, split up after they committed the offense, and lied to the police to cover for each other.
Yandell testified that the robbery of the Chevron store also fit the pattern of Fresno Bulldog activity because it was committed by a team of people, most of the men were very serious gang members, they planned the robbery, they relied on each other to perform it, they used multiple weapons and cars, they had specific assignments during the robbery rather than acting “somewhat hodgepodge upon getting in through the door, ” they switched cars after the crime, they took numerous steps to avoid detection, and they divided the money. Yandell conceded that every robbery committed by a gang member was not necessarily committed for the gang’s benefit.
Yandell’s testimony about defendant and the other robbery suspects
As part of his preparation in this case, Yandell reviewed materials in two large binders which contained the arrest history for each suspect. This information included all arrests, probation reports, and contacts with law enforcement (from something as simple as a runaway juvenile to a gang field interview). He prepared a written report as to whether the offenses in this case were gang-related.
Yandell testified that defendant had numerous tattoos, including “bull” on the right hand and “dogs” on the left hand; “Primos” on his left wrist; “este lado” on his arm, which meant east side; and a bulldog face on his shoulder.
Yandell testified to his opinion that Francisco was an extremely active participant in the “Primos” clique of the Fresno Bulldogs--based on Francisco’s prior contacts with law enforcement, his admissions on the street and in custody, and his associates. Francisco had several tattoos consistent with the Fresno Bulldogs, including a dog paw and a bulldog face.
Yandell also believed Johnson was a member of the Fresno Bulldogs, based on his gang tattoos, prior admissions while in custody, and prior contacts with law enforcement officers. Johnson previously admitted he was an active member of the Fresno Bulldogs, and he had a large tattoo of “MSD” on the back of his head. The initials stood for the McKenzie Street Bulldogs, one of the subsets of the Fresno Bulldogs.
Yandell testified that Benjamin was a member of the Daisy Park Bulldogs, another subset which claimed allegiance to the Fresno Bulldogs--based on his prior custodial admissions, prior contacts, and tattoos.
Yandell considered Felecia to be an associate of the Fresno Bulldogs based on her familial relationships with Francisco and Johnson. Yandell did not have any prior gang contact information on Michael, but considered Michael as an associate of the Bulldogs based on his relationship with Felecia. It was also significant that Francisco assured Michael, before the robbery, that the gang would take care of him if he was taken into custody. Yandell explained that the gangs “throw a false security of we will protect you. We will protect your families. No harm will come your way once you join us.”
Based on a hypothetical question, Yandell testified that a robbery committed by several members of the Fresno Bulldogs was done for the benefit of, at the direction of, or in association with the gang. Such a robbery, committed by several members of the gang working together, benefited the gang because the large amount of money that was stolen would be used to further their criminal lifestyles and avoid working. It was extremely uncommon for $160,000 to be taken during a convenience store robbery. Yandell further explained that “whenever a gang member commits a robbery, the proceeds of that crime will afford them money or valuables to further their criminal ways, ” or escape arrest. It would be more notorious for Fresno Bulldogs to commit such a robbery in the northern territory of Porterville, where they have a very small presence. The crime would garner extensive media coverage, boost the gang’s reputation, and show up the Tulare County gangs.
Yandell explained it was important for gang members to gain notoriety by “putting in work, ” whether through assaults, thefts, robberies or murders, to earn the respect of other gang members. In Yandell’s opinion, the hypothetical robbery was gang-related because the robbery was committed in association with other known gang members. The presence of firearms during the robbery was also significant because it showed the witnesses and opposing gangs that they had access to the weapons, and they were not afraid to use them to commit violent assaults. “So it shows that they’re arming themselves for their criminal lifestyle, and they’re basically advertising this to other—to other gang members and to the public at large which will instill fear in the general public; therefore, promoting their gang.”
“[The other gang members] not only go in to commit this crime, but they plan it out … it’s a strategic plan, including a switch of cars …, equipment and tactical operations for who’s gonna [sic] carry the pistol, specific jobs and … assignments were planned out and given to each person. Otherwise, it just would have been a hodgepodge of five guys running in and who’s doing what. [¶ ] This was planned out very specifically, and in gang world, in gang culture, gang members have to be able to trust their … homies. They have to be able to trust each other for things of this nature because that’s all they have is basically other gang members to rely on.”
Yandell conceded the suspects in this case did not shout gang slogans, display gang signs, or show the color red during the robbery. However, the suspects were wearing black clothing and “had orchestrated a uniform” for the crime.
DEFENSE EVIDENCE
Defendant lived with his girlfriend and grandmother in Fresno. Lydia Loera, defendant’s grandmother, and Irene Salinas, his girlfriend, testified that defendant was home the night of the robbery. Loera testified defendant left the house and went to the store for only 30 or 40 minutes, and returned with Salinas. Loera testified that much later, Francisco and Johnson arrived at her house, went into defendant’s bedroom with him, and left about 10 minutes later. Mercy Moreno also lived at Loera’s house, and testified that defendant and Irene left the house for about 20 minutes, they returned, and he was there all night. Loera and Salinas knew the police later found $16,000 at the house, but testified the money did not belong to them.
In rebuttal, Officer Cox testified that he interviewed defendant’s grandmother on the night that defendant was arrested, she could not remember whether she had seen defendant on the night of the robbery, and she never said defendant was with her the entire night.
Michael testified that defendant’s girlfriend was present when Francisco counted out and distributed the money at the house where defendant lived with his grandmother.
Testimony of defense gang expert
Albert Ochoa testified as the defense gang expert. He had worked with gang members in educational and counseling situations for 32 years. He had interacted with members of northern and southern gangs, and members of the Fresno Bulldogs. He had also conducted Internet research about the Fresno Bulldogs.
Ochoa believed the Chevron robbery was not gang-related because the perpetrators did not announce themselves as gang members, follow up with another crime in the same area, or commit the crime against a rival gang member. The crime was committed outside of Bulldog territory and the perpetrators tried to conceal their identities. However, Ochoa admitted that defendant, Francisco, Benjamin, and Johnson were all members of the different cliques of the Fresno Bulldogs. Defendant’s brother was also a Fresno Bulldog.
Defendant’s testimony
Defendant testified at trial and admitted that at the time of the robbery, he was a member of the Fresno Bulldogs, he was known as “Little Mix, ” and he had tattoos that said “Bulldogs, ” “este lado, ” and “Primos.” Defendant testified the Fresno Bulldogs committed crimes, the members possessed weapons, and there were “way more” than three members in the gang. Defendant admitted he used to be “tight” with Francisco and they were both in the “Primos” clique of the Fresno Bulldogs. The McKenzie Street and Daisy Park Bulldogs were other cliques. Defendant used to hang out with Benjamin, and he knew Johnson. Defendant also knew Saul Martinez (the subject of Yandell’s testimony about predicate offenses) and that Martinez had Fresno Bulldog tattoos.
Defendant denied that he committed the robbery of the Chevron store. Defendant testified he was at his grandmother’s house on the night of the robbery, and he only left to go to the store for 30 to 45 minutes. Around 11:30 p.m., Francisco and Johnson arrived at the house. Francisco offered to pay defendant $400 if he held $10,000 for them. Defendant agreed, and Francisco gave him another $2,000. Defendant testified that Michael and Felecia might have been with Francisco and Johnson at that time, but they did not come inside the house. Defendant accepted the money and put it in various places in his bedroom.
Defendant testified that when he was interviewed by the police, he was tired and scared and eventually told them just what they wanted to hear—that he was involved in the robbery. Defendant testified that he was no longer a member of the Fresno Bulldogs. Defendant also testified that things had changed with Francisco because of an incident after the robbery, when Francisco and Johnson came at him from behind because they were mad at him. Defendant admitted that he gave Francisco’s name to the police.
DISCUSSION
I SUBSTANTIAL EVIDENCE OF KIDNAPPING TO COMMIT ROBBERY
As to count I, kidnapping of Yassen to commit robbery (§ 209, subd. (b)), defendant contends there is insufficient evidence of the asportation element to support his conviction. Defendant argues the robbers’ movement of Yassen through the store was only incidental to the robbery itself and that movement did not increase the risk of harm.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The asportation element of kidnapping for the purposes of robbery, also known as aggravated kidnapping, “requires movement of the victim that is [1] not merely incidental to the commission of the underlying crime and [2] that increases the risk of harm to the victim over and above that necessarily present in the underlying crime itself. [Citations.] ‘These two aspects are not mutually exclusive, but interrelated.’ [Citations.]” (People v. Martinez (1999) 20 Cal.4th 225, 232-233 (Martinez).) “The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement. [Citation.]” (People v. Dominguez (2006) 39 Cal.4th 1141, 1152.) “This standard suggests a multifaceted, qualitative evaluation rather than a simple quantitative assessment. Moreover, whether the victim's forced movement was merely incidental to the [underlying felony] is necessarily connected to whether it substantially increased the risk to the victim.” (Ibid.) “Although any assessment of the Daniels/Rayford test necessarily must include a consideration of the actual distance the victim was forced to move [citation], we have repeatedly stated no minimum distance is required to satisfy the asportation requirement [citation], so long as the movement is substantial [citation].” (Ibid.)
The California Supreme Court previously construed the asportation requirement of aggravated kidnapping to require that the movement of the victim “substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.” (People v. Daniels (1969) 71 Cal.2d 1119, 1139 (Daniels), italics added; see also People v. Rayford (1994) 9 Cal.4th 1, 12-13 (Rayford).) “In 1997, the Legislature added to the aggravated kidnapping statute Rayford's and Daniels's requirement of an ‘increase of risk of harm.’ [Citation.]” (People v. Ortiz (2002) 101 Cal.App.4th 410, 414-415, italics added.) The aggravated kidnapping statute “thus codifies both Rayford... and a modified version of the … Daniels... asportation standard. [Citations.] Unlike our decisional authority, it does not require that the movement ‘substantially’ increase the risk of harm to the victim. [Citation.]” (Martinez, supra, 20 Cal.4th at p. 232, fn. 4.) “As such, the movement of the victim in an aggravated kidnapping must increase the risk of harm beyond that inherent to the underlying crime, but ‘does not require that the movement “substantially” increase the risk of harm to the victim.’ [Citation.]” (People v. Ortiz, supra, 101 Cal.App.4th at p. 415.)
As to the first asportation element, “[i]n determining ‘whether the movement is merely incidental to the [underlying] crime... the jury considers the “scope and nature” of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong.’ [Citations.]” (Martinez, supra, 20 Cal.4th at p. 233, second set of brackets in original.)
The second asportation element “‘refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in [the underlying crime]. [Citations.] This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased. [Citations.]’ [Citations.]” (Martinez, supra, 20 Cal.4th at p. 233.) “The ‘risk of harm’ test is satisfied when the victim is forced to travel a substantial distance under the threat of imminent injury by a deadly weapon. [Citation.]” (In re Earley (1975) 14 Cal.3d 122, 131.)
Defendant’s conviction for aggravated kidnapping is supported by overwhelming evidence. The robbers’ movement of Yassen from the front of the store to the rear storage room was not merely incidental to the robbery. Yassen was moved within the store itself, but the actual distance was approximately 33 feet, based on the trial evidence. (See, e.g., Martinez, supra, 20 Cal.4th at pp. 230, 237-238 [movement of victim 40 to 50 feet away from house was not necessarily insubstantial].) While defendant characterizes the movement as involving a short distance, “relatively short distances have been found not to be incidental where the movement results in a substantial change in ‘the context of the environment.’ [Citations.]” (People v. Diaz (2000) 78 Cal.App.4th 243, 247.) The robbers entered the store just before closing, when Yassen was alone and his coworker was in the parking lot. They did not demand that Yassen open the registers or give them cash. Instead, they ordered Yassen into the storage area. Even though Yassen did not resist, they dragged him from the front of the store, where someone in the parking lot could have easily seen inside, to the rear storage area, which was secluded from public view. This movement subjected Yassen to a substantial increase in the risk of harm “ ‘above and beyond that inherent in [the underlying crime].’ [Citations.]” (Martinez, supra, 20 Cal.4th at p. 233, brackets in original.)
Once the assailants had Yassen in the back room, they again declined to ask where the money was or demand that he open the safe in the back office. Instead, they beat Yassen unconscious, and the beating was so severe that Yassen suffered repeated seizures after the assault. During his postarrest interview, defendant admitted he hit Yassen two or three times with the baseball bat, but insisted that he did not want to kill him. After Yassen was beaten, Michael walked past him, and used his injured coworker’s regular technique to pry open the office door and get the money.
Defendant cites a series of cases where the movement of robbery victims within business establishments was found insufficient to constitute aggravated kidnapping. In those cases, however, the movement of the victims was accomplished for the robbers to gain access to the cash or property within those businesses. (See, e.g. People v. Hoard (2002) 103 Cal.App.4th 599, 601-602, 607; People v. Washington (2005) 127 Cal.App.4th 290, 294, 300 [incidental movement of robbery victim from teller area of bank to location of vault]; In re Crumpton (1973) 9 Cal.3d 463, 466-467 [forcible movement of victim 20 to 30 feet behind a truck parked at service station merely incidental to robbery]; People v. Williams (1970) 2 Cal.3d 894, 899, 903 [insufficient evidence of asportation because movement around a service station and its adjacent outdoor area was similar to movement within a place of business or other enclosure, and necessary to gain access to property].)
As explained in People v. Diaz, supra, 78 Cal.App.4th 243, however, “incidental movements are brief and insubstantial, and frequently consist of movement around the premises where the incident began. [Citations.]” (Id. at p. 247.) “By contrast, relatively short distances have been found not to be incidental where the movement results in a substantial change in ‘the context of the environment.’ (See, e.g., People v. Rayford, supra, 9 Cal.4th at p. 23 [105 feet at night from parking lot to less visible location next to wall in adjacent empty lot not incidental to intended rape]; People v. Jones (1999) 75 Cal.App.4th 616, 629-630 [25 to 40 feet across a school parking lot and into the victim’s own car not incidental to intended robbery, where defendant intended to drive away but victim immediately escaped]; People v. Salazar (1995) 33 Cal.App.4th 341, 347 [29 feet from outside motel room door, through the room, and into a bathroom not incidental to intended sexual assault].)” (People v. Diaz, supra, 78 Cal.App.4th at p. 247.)
In this case, the robbers’ movement of Yassen from the front of the store to the rear storage area was not an integral part of the robbery because they already knew where the money was and how to get it. As explained in Martinez and Rayford, the robbers’ movement of Yassen from the front of the store into the rear storage area subjected him to a substantial increase in the risk of harm above and beyond that inherent in the robbery itself, because it resulted in a substantial change in the context of the environment, enhanced the danger to the victim, and enabled the robbers to commit the assault on Yassen. (Martinez, supra, 20 Cal.4th at p. 233; Rayford, supra, 9 Cal.4th at pp. 13-14.) Defendant’s conviction for aggravated kidnapping is supported by substantial evidence.
II. ADMISSIBILITY OF THE EXPERT’S OPINION TESTIMONY
Defendant raises several issues as to whether the gang enhancement is supported by substantial evidence. All of these contentions are based on his underlying argument that Detective Yandell was not competent to testify as the prosecution’s expert on the Fresno Bulldogs, his testimony lacked foundation and should have been excluded, and his testimony cannot provide the basis for finding substantial evidence to support the jury’s true finding on the gang enhancement.
We will address defendant’s substantial evidence contentions in issue III, post. In this section, we will address defendant’s underlying issue as to whether the court abused its discretion when it permitted Yandell to testify as the prosecution’s gang expert.
A. The gang enhancement
We begin with the statutory basis for the gang enhancement. Section 186.22, subdivision (b)(1) provides for the imposition of an enhancement 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, with the specific intent to promote, further, or assist in any criminal conduct by gang members.…”
To establish that a group is a criminal street gang within the meaning of section 186.22, subdivision (b)(1), the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group’s primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of criminal gang activity, by committing, attempting to commit, or soliciting two or more of the enumerated offenses, the so-called “predicate offenses.” (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley); People v. Duran (2002) 97 Cal.App.4th 1448, 1457 (Duran); § 186.22, subd. (f).)
The prosecution may rely on expert testimony to prove the required elements to support a gang enhancement. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048 (Hernandez).) The substantial evidence standard of review applies to determine whether the jury’s true findings on gang allegations are supported by the evidence. (Duran, supra, 97 Cal.App.4th at pp. 1456-1457.)
B. Expert opinion testimony about gangs
“It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.]” (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).) The subject matter of the culture and habits of street gangs meets the criteria for the admissibility of expert opinion because such evidence is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Gardeley, supra, 14 Cal.4th at p. 617; Frank S., supra, 141 Cal.App.4th at pp. 1196-1197.)
The expert testimony may address “the size, composition or existence of a gang [citations], gang turf or territory [citations], an individual defendant’s membership in, or association with, a gang [citations], the primary activities of a specific gang [citations], motivation for a particular crime, generally retaliation or intimidation [citations], whether and how a crime was committed to benefit or promote a gang [citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or attire [citations].” (People v. Killebrew (2002) 103 Cal.App.4th 644, 657, fns. omitted (Killebrew).)
The expert may testify regarding certain activities of the gang, even though they may parallel the elements of the criminal street gang allegation. The expert may also testify about whether the defendant acted for the benefit of, at the direction of, or in association with 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, 508-509.)
C. Admissibility of expert testimony
The trial court has wide discretion to admit or exclude expert testimony. (People v. Roberts (1992) 2 Cal.4th 271, 298.) “ ‘[A] person is qualified to testify as an expert if he has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony relates. Whether a person qualifies as an expert in a particular case, however, depends upon the facts of the case and the witness’s qualifications. [Citation.] The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion in [sic] shown. [Citations.]’ [Citation.] This court may find error only if the witness ‘clearly lacks qualification as an expert.’ [Citation.]” (People v. Singh (1995) 37 Cal.App.4th 1343, 1377, italics in original.)
Evidence Code section 802 provides, in pertinent part, that “[a] witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter... upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion.” Expert testimony may 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” and is reliable. (Gardeley, supra, 14 Cal.4th at p. 618.) If the threshold requirement of reliability is met, “even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony.” (Ibid., italics omitted; see also Duran, supra, 97 Cal.App.4th at p. 1463.) Since Evidence Code section 802 permits an expert witness to “ ‘state on direct examination the reasons for his opinion and the matter... upon which it is based, ’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion.” (Gardeley, supra, 14 Cal.4th at p. 618.)
As applied to the gang enhancement, there is no requirement for an officer to possess an academic or professional credential to qualify as a gang expert, and the foundation for an officer’s opinion may be based on the officer’s experience with “street gangs in general.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 (Olguin).) Law enforcement officers have been found qualified to provide expert testimony regarding gangs simply based on their investigative experience. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 196; People v. Ochoa (2001) 26 Cal.4th 398, 438, abrogated on other grounds as stated in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14; People v. Gonzalez (2006) 38 Cal.4th 932, 949, fn. 4.)
Also as applied to the gang enhancement, “[e]xpert testimony may be founded on material that is not admitted into evidence and on evidence that is ordinarily inadmissible, such as hearsay, as long as the material is reliable and of a type reasonably relied upon by experts in the particular field in forming opinions. [Citation.] Thus, a gang expert may rely upon conversations with gang members, his or her personal investigations of gang-related crimes, and information obtained from colleagues and other law enforcement agencies. [Citations.]” (Duran, supra, 97 Cal.App.4th at pp. 1463-1464.) An officer testifying as a gang expert, just like any other expert, may give testimony that is based on hearsay, including conversations with gang members as well as with the defendant. (People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9.)
“ ‘There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.’ [Citations.]” (People v. Valdez, supra, 58 Cal.App.4th 494, 507.) However, a gang expert may not testify whether an individual possessed certain knowledge or a specific intent during the commission of an offense. (Frank S., supra, 141 Cal.App.4th at p. 1197; Killebrew, supra, 103 Cal.App.4th at p. 658; People v. Ramon (2009) 175 Cal.App.4th 843, 850-853.)
D. Analysis
Defendant argues the jury’s true findings on the gang enhancements are not supported by substantial evidence and cannot be based on Detective Yandell’s testimony because his testimony was conclusory and unsupported by any reliable or sufficient foundational basis. (AOB 14-17, 28-34) Defendant asserts that Yandell’s experience was limited to the northern and southern gangs of Tulare County, all of Yandell’s information about the Fresno Bulldogs was based on a “two-hour ‘crash course’ ” provided by other law enforcement officers about that gang, and he lacked any personal knowledge or experience in dealing with the Fresno Bulldogs.
We disagree with defendant’s contentions. The court properly allowed Yandell to testify as an expert and did not abuse its discretion on this point. As set forth ante, Yandell extensively testified about the foundation and basis for his expert opinions about gangs in general, and the Fresno Bulldogs in particular. Contrary to defendant’s arguments, Yandell’s knowledge of the Fresno Bulldogs was not simply based on a “two hour ‘crash course.’ ” Yandell explained his primary focus was on the northern and southern gangs which operated in Tulare County, and that he had received additional training about the Fresno Bulldogs from members of the Fresno County Sheriff’s Department’s MAGEC Team. However, Yandell also explained that he had interacted with members of the Fresno Bulldogs throughout his career, primarily when he worked at the jail, and he had interviewed members of that gang and conducted investigations into two other cases involving the Fresno Bulldogs. He also explained that members of the Fresno Bulldogs had started moving out of Fresno, and into Tulare County, because of Fresno County’s gang injunction. Yandell conceded there were only about 20 members of the Fresno Bulldogs in Tulare County, but explained why the Bulldogs would have committed a crime in Tulare County: it was more notorious for the Fresno Bulldogs to commit a robbery in Porterville, in the midst of northern and southern turf, where they have a very small presence.
Defendant complains that Yandell’s knowledge about the Fresno Bulldogs was based on his review of police reports and conversations with other law enforcement officers. As the court in Duran explained, however, “[e]xpert testimony may be founded on material that is not admitted into evidence and on evidence that is ordinarily inadmissible, such as hearsay, as long as the material is reliable and of a type reasonably relied upon by experts in the particular field in forming opinions. [Citation.] Thus, a gang expert may rely upon conversations with gang members, his or her personal investigations of gang-related crimes, and information obtained from colleagues and other law enforcement agencies. [Citations.]” (Duran, supra, 97 Cal.App.4th at pp. 1463-1464.)
For example, in Gardeley, supra, 14 Cal.4th 605, the court held an officer properly testified as an expert about the nature and activities of the Family Crip gang, based on the officer's opinions which were formed from “conversations with the defendants and with other Family Crip members, [the officer’s] personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies.” (Gardeley, supra, 14 Cal.4th at p. 620.)
In People v. Gamez (1991) 235 Cal.App.3d 957 (Gamez) (disapproved on another ground in Gardeley, supra, 14 Cal.4th at p. 624, fn. 10), the court rejected the defendant’s argument that a gang expert’s testimony was based on unreliable hearsay from unidentified sources. Gamez found an officer was properly permitted to testify as an expert because his opinions were based on “personal observations and experience, the observations of other officers in the department, police reports, and conversations with other gang members, ” together with photographs of the defendant throwing gang signs, his prior contacts with the police while in the presence of other gang members, his prior admissions of being a member of the gang, and his gang graffiti on textbooks. (Gamez, supra, 235 Cal.App.3d at p. 967.)
As explained in Gamez, Gardeley, and Duran, the trial court in this case properly overruled defendant’s numerous foundational objections to Yandell’s testimony. Yandell properly relied upon his review of police reports, conversations with fellow officers, and his own personal experiences in testifying about his opinion regarding the activities of the Fresno Bulldogs.
III. SUBSTANTIAL EVIDENCE TO SUPPORT THE GANG ENHANCEMENT
Defendant contends there is insufficient evidence as a matter of law to support the jury’s findings that he committed the substantive offenses for the benefit of, in association with, or at the direction of a criminal street gang (§ 186.22, subd. (b)). As to the particular elements of the gang enhancement, defendant argues there is no competent evidence to prove defendant and his accomplices were members of the Fresno Bulldogs, or to prove the primary activities and pattern of criminal activity elements.
As we have explained, the substantial evidence standard of review applies to review the jury’s true findings on the section 186.22, subdivision (b) gang enhancement. (Duran, supra, 97 Cal.App.4th at pp. 1456-1457.) We will examine each of defendant’s substantial evidence arguments.
A Evidence of the robbery participants’ membership in the gang
Defendant argues there is no competent evidence that defendant or any of the other robbers were members of the Fresno Bulldogs. Active participation in the context of a criminal street gang is defined as “involvement with a criminal street gang that is more than nominal or passive.” (People v. Castenada (2000) 23 Cal.4th 743, 747.) Evidence of gang activity and culture need not necessarily be specific to a particular local street gang, as opposed to a larger organization. (See, e.g., People v. Ortega (2006) 145 Cal.App.4th 1344, 1355-1357; In re Jose P. (2003) 106 Cal.App.4th 458, 467-468.) An individual’s membership in a criminal street gang is a proper subject for expert testimony. (Duran, supra, 97 Cal.App.4th at p. 1464.)
There is overwhelming evidence that defendant and his accomplices were members of the Fresno Bulldogs when they committed the offenses in this case. As to the accomplices, Detective Yandell extensively described the reasons for his opinion why Benjamin, Francisco, and Johnson were members of the Fresno Bulldogs, primarily based on their distinctive tattoos and prior admissions of membership in either the Bulldogs or that gang’s subsets and cliques. Yandell explained all cliques within the Fresno Bulldogs were loyal to the larger gang, and all clique members got along with each other. Yandell further explained that Felecia was considered an associate of the Fresno Bulldogs, based on her family relationships with her brother, Francisco, and her cousin, Johnson. He also explained that Michael was considered an associate, based on his relationship with Felecia, and Francisco’s promise that the gang would take care of Michael if he was taken into custody for the robbery.
As for defendant, he correctly points out that Yandell did not offer an opinion as to whether he was a member of the Fresno Bulldogs. However, there is overwhelming evidence to support that fact. During his postarrest interview, defendant admitted he was a “bulldog, ” that he was at the store during the robbery, and that he hit the clerk with the baseball bat. At trial, defendant denied any involvement in the robbery, but again admitted he was a member of the Fresno Bulldogs at the time of the robbery, he used to be “tight” with Francisco, and they were both in the “Primos” clique. Yandell explained that defendant’s tattoos included “bull” on the right hand and “dogs” on the left hand, and “Primos” on his left wrist, and Francisco was also a member of the Primos clique. Michael testified that he knew defendant and Francisco were good friends, and defendant said they called themselves the “Primos.”
There is overwhelming evidence that defendant and his accomplices were members of the Fresno Bulldogs and/or that gang’s cliques when they committed the substantive offenses in this case.
B. The primary activities element
Defendant asserts there is no competent evidence to prove the primary activities element of the gang enhancement because Detective Yandell simply stated his opinion about the gang’s primary activities without providing any foundation for that opinion.
“To trigger the gang statute’s sentence-enhancement provision [citation], the trier of fact must find that one of the alleged criminal street gang's primary activities is the commission of one or more of certain crimes listed in the gang statute.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 322 (Sengpadychith).) “Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group’s primary activities. Both past and present offenses have some tendency in reason to show the group's primary activity [citation] and therefore fall within the general rule of admissibility [citation].” (Id. at p. 323.)
“The phrase ‘primary activities, ’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations, ” as opposed to the “occasional commission of those crimes by [one or more of] the group's members.” (Sengpadychith, supra, 26 Cal.4th at p. 323.) “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, ” and may be accomplished through expert testimony. (Id. at p. 324, italics in original.) The enumerated criminal acts which consist of the “primary activities” include unlawful homicide, manslaughter, assault with a deadly weapon or by means of force likely to produce great bodily injury, burglary, robbery, narcotics offenses, shooting at an inhabited dwelling or motor vehicle, discharging a firearm from a motor vehicle, felony vandalism, and grand theft. (§ 186.22, subd. (e).)
Proof of the primary activities element may be accomplished through expert testimony. (Sengpadychith, supra, 26 Cal.4th at p. 324; Gardeley, supra, 14 Cal.4th at p. 617.) “The testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang’s primary activities. [Citations.]” (Duran, supra, 97 Cal.App.4th at p. 1465, italics added.)
As we have explained, the court did not abuse its discretion when it permitted Detective Yandell to testify as an expert on the Fresno Bulldogs, and there was a sufficient foundation for his opinions about that gang and its activities. Yandell testified the primary activities of the Fresno Bulldogs were crimes such as murder, attempted murder, theft, robbery, kidnapping, and drug sales. While defendant used his trial testimony to deny his involvement in the robbery, he admitted that he used to be a member of the Fresno Bulldogs. Defendant further admitted he knew members of the Fresno Bulldogs, there were “way more” than three members, and that the gang’s members committed crimes and possessed weapons.
Defendant argues Yandell’s testimony about the gang’s primary activities lacked a sufficient foundational basis and was conclusory, based on the holding in In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.).) In that case, the court held the gang expert’s testimony lacked foundation and was insufficient to support the primary activities element. The officer testified only about general offenses committed by the gang, and about a predicate offense in which the alleged gang member was actually acquitted of the gang allegation. (Id. at pp. 611-612.) The officer failed to explain how he knew about the offenses. (Id. at p. 612.) On cross-examination, the officer conceded that the vast majority of cases relating to the gang involved graffiti, and he failed to specify whether the incidents involved misdemeanor or felony vandalism. (Ibid.) Alexander L. held that since “information establishing reliability was never elicited from [the expert] at trial, ” it was “impossible to tell whether his claimed knowledge of the gang’s activities might have been based on highly reliable sources, such as court records of convictions, or entirely unreliable hearsay.” (Ibid., fn. omitted.)
As explained in People v. Martinez (2008) 158 Cal.App.4th 1324 (Martinez), the gang expert in Alexander L. “never specifically testified about the primary activities of the gang. He merely stated ‘he “kn[e]w” that the gang had been involved in certain crimes.... He did not directly testify that criminal activities constituted [the gang’s] primary activities.’ [Citation.]” (Martinez, supra, 158 Cal.App.4th at p. 1330.) The court in Martinez contrasted the gang expert’s testimony in that case with the insufficient foundational testimony in Alexander L.: “[In Martinez], on the other hand, [the gang expert] had both training and experience as a gang expert. He specifically testified as to [the gang’s] primary activity. His eight years dealing with the gang, including investigations and personal conversations with members, and reviews of reports suffices to establish the foundation for his testimony. [Citation.]” (Martinez, supra, 158 Cal.App.4th at p. 1330; see also People v. Margarejo (2008) 162 Cal.App.4th 102, 107-108 [distinguishing Alexander L.].)
As we have explained, a gang expert’s opinion may be based upon the expert’s personal investigation of past crimes by gang members, and information about gangs learned from the expert’s colleagues or other law enforcement agencies. (Vy, supra, 122 Cal.App.4th at p. 1223, fn. 9.) In this case, Detective Yandell’s testimony provided substantial evidence about the primary activities of the Fresno Bulldogs. Yandell established the foundation for his testimony, he did not equivocate about the basis for his opinions, and he did not contradict himself about his opinions on the activities of the Fresno Bulldogs. In contrast, the expert in Alexander L. failed to establish the foundation for his testimony, failed to testify the crimes he cited constituted the gang’s primary activities, equivocated on direct examination, and contradicted himself on cross-examination. Yandell’s testimony did not suffer from these foundational defects. (Cf. Alexander L., supra, 149 Cal.App.4th at pp. 611-612.) While Yandell’s primary investigative focus was the northern and southern gangs in Tulare County, he had a sufficient foundation for his opinions about the Fresno Bulldogs, based on his own interactions with gang members when he worked at the jail, the gang’s activities in Tulare County, his conversations with other law enforcement officers, and his review of law enforcement reports about the Fresno Bulldogs.
C. The pattern of criminal activity element
Defendant further asserts there is no competent evidence to prove the Fresno Bulldogs engaged in a pattern of criminal activity. Defendant argues that Detective Yandell improperly relied on hearsay documents about crimes committed by other members of the Fresno Bulldogs when he testified about the predicate offenses.
“A ‘pattern of criminal gang activity’ is defined as gang members’ individual or collective ‘commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more’ enumerated ‘predicate offenses’ during a statutorily defined time period. [Citation.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.] The charged crime may serve as a predicate offense [citations], as can ‘evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member.’ [Citation.].” (Duran, supra, 97 Cal.App.4th at pp. 1457-1458.) The crimes necessary to establish a pattern need not be gang-related. However, if the prosecution relies upon the current offense as one of the predicate offenses, that offense must be gang-related. (Gardeley, supra, 14 Cal.4th at pp. 621-622, 625, fn. 12.)
A certified minute order and other qualifying court records are admissible under the hearsay exception of the official records of conviction to prove not only the fact of conviction, but also that the offense reflected in the record occurred. (Duran, supra, 97 Cal.App.4th at pp. 1462-1463.)
There is substantial evidence to support the pattern elements and the so-called “predicate offenses.” The robbery of the Chevron store in this case, committed by several members of the Fresno Bulldogs acting together, clearly qualifies as one of the predicate offenses. In addition, Yandell testified that in April 2006, Nelson Mendoza, a known and admitted member of the Fresno Bulldogs, pleaded guilty to burglary. Mendoza and two other known gang members burglarized a vehicle, they had specific assignments to perform the job, they split up after they committed the offense, and they lied to the police to cover for each other. The prosecution introduced the certified court records of Mendoza’s conviction.
Defendant relies on two cases in support of his argument that Detective Yandell’s testimony lacked sufficient foundation on the pattern element: In re Leland D. (1990) 223 Cal.App.3d 251 (Leland D.) and In re Nathaniel C. (1991) 228 Cal.App.3d 990 (Nathaniel C.). The facts of these cases are inapposite to the expert’s testimony in this case.
In Leland D., the gang expert initially testified that members of the defendant’s gang engaged in the sale of rock cocaine and committed vehicle thefts and assaults. On further examination, he admitted he had no specific knowledge of who in the gang committed such offenses and “when, where and under what circumstances” they occurred. (Leland D., supra, 223 Cal.App.3d at p. 259.) In addition, “[t]he sources of [his] conclusional pronouncements appear[ed] to have been hearsay statements from unidentified gang members and information pertaining to arrests of purported gang members all made without a definite timeframe being established.” (Ibid.) Leland D. stressed that “[e]vidence that an individual has been arrested for an offense, without more, is not sufficient to establish either that a crime has been committed or that any particular individual is guilty of its commission, ” and concluded the expert's testimony “f[ell] far short of what is required to prove” the predicate offenses. (Leland D., at pp. 258, 259.)
Nathaniel C., also found the expert’s testimony about a predicate offense was insufficient. The expert witness was a South San Francisco police officer, and he learned about the offense from San Bruno police officers. The incident involved the shooting of a person the San Bruno police believed to be a member of the gang. The expert said the San Bruno police believed the shooter also was a gang member and the shooting was gang-related. (Nathaniel C., supra, 228 Cal.App.3d at p. 998.) The court concluded the expert “offered only nonspecific hearsay of a suspected shooting of one [gang] member by another. The [expert] witness... had no personal knowledge of the incident and only repeated what San Bruno police told him they believed about the shooting. Such vague, secondhand testimony cannot constitute substantial evidence that the required predicate offense by a gang member occurred.” (Id. at p. 1003, italics added.)
Detective Yandell’s testimony about the predicate offenses was not based on the same type of conclusory, nonspecific hearsay and arrest information deemed insufficient in Leland D. and Nathaniel C. He was extensively aware of the facts and circumstances of the instant robbery. In addition, he testified in detail about the Nelson Mendoza case, certified court records were introduced to support his testimony, and he properly relied upon information from other law enforcement officers in explaining the gang-related nature of that offense. Yandell’s testimony was far more specific than general hearsay evidence that gang members were suspected of committing the offenses. Moreover, as the jury was properly instructed, one of defendant’s present offenses could also be used as evidence of a predicate offense in deciding whether one of the group’s primary activities was commission of that crime, and whether a pattern of criminal gang activity had been proved. The evidence clearly sufficed to establish a pattern of criminal gang activity.
D. Substantial evidence
We now turn to defendant’s overall contention that there is insufficient evidence the robbery was “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....” (§ 186.22, subd. (b)(1).) “As to the second prong of the enhancement, all that is required is a specific intent ‘to promote, further, or assist in any criminal conduct by gang members.’ [Citation.] Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. [Citation.]” (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)
“A gang expert’s testimony alone is insufficient to find an offense gang related. [Citation.] ‘[T]he record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.’ [Citation.]” (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.)
A series of cases have found substantial evidence to support gang enhancements in cases where gang members commit offenses with fellow gang members, since such conduct satisfies the statutory requirement that the offenses must be committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1), italics added.) For example, in People v. Morales (2003) 112 Cal.App.4th 1176 (Morales), the defendant and two fellow gang members committed a robbery and other offenses, and the jury found the gang allegations true. The prosecution’s gang expert testified that, based on a hypothetical, the crimes were committed in association with a criminal street gang because “they involved three gang members acting in association with each other. The gang provided ‘a ready-made manpower pool....’ That is, one gang member would choose to commit a crime in association with other gang members because he could count on their loyalty. They would ‘watch his back....’ In addition, the very presence of multiple gang members would be intimidating. The crime would benefit the individual gang members with notoriety among the gang, and the gang with notoriety among rival gang members and the general public.” (Id. at p. 1197.)
Morales rejected the defendant’s argument that there was insufficient evidence that he committed the offenses to benefit his gang, and instead noted the gang expert’s focus was on “a crime committed, not just by a gang member, but by several gang members, acting in association with each other. Also, [the expert] did not testify that such a crime necessarily would benefit the gang, merely that it would be committed either for the benefit of, or at the direction of, or in association with the gang.” (Morales, supra, 112 Cal.App.4th at p. 1197.)
“Defendant argues that reliance on evidence that one gang member committed a crime in association with other gang members is ‘circular....’ Not so. Arguably, such evidence alone would be insufficient, even when supported by expert opinion, to show that a crime was committed for the benefit of a gang. The crucial element, however, requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang. Thus, the typical close case is one in which one gang member, acting alone, commits a crime. Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members.
“If defendant is arguing that there was insufficient evidence of the specific intent element (as opposed to the benefit/direction/association element), we disagree. Again, 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....’ Here, there was evidence that defendant intended to commit robberies, that he intended to commit them in association with [his fellow gang members], and that he knew that [they] were members of his gang. Moreover, … there was sufficient evidence that defendant intended to aid and abet the robberies [his fellow gang members] actually committed. It was fairly inferable that he intended to assist criminal conduct by his fellow gang members.” (Morales, supra, 112 Cal.App.4th at p. 1198.)
In People v. Romero (2006) 140 Cal.App.4th 15, the defendant drove fellow gang members to the site of a drive-by shooting, and the court found the gang enhancements were supported by substantial evidence because the defendant committed the offenses in association with fellow gang members. “There was ample evidence that [defendant] intended to commit a crime, that he intended to help [his accomplice] commit a crime, and that he knew [his accomplice] was a member of his gang. This evidence creates a reasonable inference that [defendant] possessed the specific intent to further [his accomplice’s] criminal conduct.” (Id. at p. 20.)
A similar result was reached in People v. Martinez, supra, 158 Cal.App.4th 1324, where the defendant admitted membership in a criminal street gang and committed robberies with another admitted member of that gang. The defendant argued there was insufficient evidence to support the gang enhancement because his accomplice was also his brother-in-law, and they committed the offenses for their own personal benefit. (Id. at pp. 1332-1333.) Martinez rejected the argument and noted the gang expert testified “this evidence showed defendant committed the robbery in association with the gang. The elements of the gang enhancement may be proven by expert testimony. [Citation.] Nor does it matter that defendant did not commit the crime on or live in gang turf or that [the gang expert] had never heard of defendant or [his accomplice]. Defendant did not even need to be an ‘ “active” ’ or ‘ “current, active” ’ gang member. [Citation.]” (Id. at p. 1332, italics added.) “Here defendant, an admitted gang member sporting gang tattoos, actually committed the robbery with a gang confederate. That he was not in his gang’s territory, by itself, does not necessarily overcome the other supporting evidence.” (Id. at p. 1333.)
In People v. Leon (2008) 161 Cal.App.4th 149 (Leon), the defendant and an accomplice were members of the same gang, and they stole a car and threatened an eyewitness. The defendant argued there was insufficient evidence that he committed the offenses for the benefit of his gang. Leon relied on Morales and Romero and rejected this argument because “a ‘specific intent to benefit the gang is not required.’ [Citation.]” (Id. at p. 163.) Leon held there was substantial evidence that the defendant committed the offenses in association with a fellow gang member. There was also evidence of the defendant’s specific intent because he intended to commit the offenses, he intended to do so in association with his accomplice, and he knew his accomplice was a member of his gang. (Ibid.)
As explained in Morales, Martinez, and Leon, there is substantial evidence to support the gang enhancements in this case because defendant, an admitted member of the Primos clique of the Fresno Bulldogs, committed the offenses “in association with” Francisco, Benjamin, and Johnson, who were also members of known cliques within the Fresno Bulldogs. Although Michael provided the information about the location of the cash, defendant and his fellow Bulldogs handled the planning and execution of the crime. Defendant knew his associates were members of the Fresno Bulldogs, he intended to commit the robbery in association with them, he shared the robbery proceeds with them, and the cash potentially provided defendant and his fellow Fresno Bulldogs with living expenses. We conclude that the jury’s true findings on the gang enhancements in this case are supported by substantial evidence.
Given our finding that the gang enhancement is supported by substantial evidence, we need not address defendant’s contention that the related firearm enhancement could not be imposed under section 12022.53, subdivision (e). However, in section V, post, we will address defendant’s alternative argument that the court improperly imposed terms for both section 186.22, subdivision (b) and section 12022.53, subdivision (e).
IV. THE EXPERT’S TESTIMONY AND CHARACTER EVIDENCE
Defendant next contends that even if Detective Yandell’s testimony was properly admitted on the elements of the gang enhancements, he improperly offered his opinion about the character of gang members, in general, and defendant in particular. Defendant argues Yandell improperly testified that gang members are liars, and they do not lead normal and productive lives. Defendant further argues such testimony was prejudicial to defendant and fatally undermined the credibility of his trial testimony that he was not involved in the robbery.
A. Background
Defendant’s arguments on these points are based on several different sequences from Yandell’s testimony. On direct examination, Yandell testified about his discovery of gang-related paraphernalia when he had executed search warrants in other gang cases. The prosecutor asked if the subjects of the warrants admitted the gang materials belonged to them. Yandell replied: “[W]hen you get into gang members, they’re a lying breed. They don’t like to tell the truth, and.” (Italics added.) Defense counsel objected under Evidence Code section 352. The court overruled objection and Yandell continued with his answer:
“In my experience with the gang members I have dealt with and I have talked to, a very, very slim percentage will actually tell you the truth. Most will lie. [¶ ] So to answer your question, some admit to it, some won’t. [Gang paraphernalia] will be on their bed, under their cell phone, in their wallet, I don’t know how it got there.” (Italics added.)
Defense counsel later conducted voir dire about Yandell’s expertise, and counsel asked whether Yandell believed all gang members were liars. Yandell explained: “I believe I stated as a generalization all gang members, ” and that they may lie to law enforcement officers about “the classification of the actual membership of the gang.” Yandell further explained:
“People lie. I mean, especially as a law enforcement officer, people lie to you repeatedly, so I’m not gonna—my answer to the earlier question was my generalization from my experience is that gang members lie as a general—as a generalization about their membership or association thereof.” (Italics added.)
As for the lifestyle of gang members, the prosecutor asked Yandell how the robbery of $160,000 would benefit a gang. Yandell testified:
“[The u]ltimate goal of any gang is to gain money so that can further their criminal lifestyle. They don’t like to work and hold jobs. They do I mean, all gangs have illegal activities. That’s what they do. So if they go and steal money, then they’ve got money to continue their criminal patterns.” (Italics added.)
Defense counsel objected under Evidence Code section 352. The court overruled the objection. Yandell later returned to this topic when asked about how gangs deal with “snitches” and “rats.”
“[Y]ou will be dealt with in a very swift and efficient manner given the opportunity. [¶ ] Normal—and again, I keep referring to gang culture because they don’t live a normal lifestyle like we do. They don’t pay taxes, mow their lawns or wave at neighbors. They rob and steal and hit people on the heads with bats and so on and so forth.…” (Italics added.)
Defense counsel raised a foundation objection “to the statements about what they do.” The court overruled the objection.
B. Analysis
Defendant contends that Yandell’s testimony on these points constituted inadmissible character evidence. Defendant further contends the evidence was prejudicial and requires reversal of his convictions because Yandell’s opinion about the lifestyle of gang members undermined the credibility of defendant’s trial testimony--that he was not involved in the kidnapping and robbery.
We begin with the parameters of character evidence in gang cases. “[E]vidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) Evidence Code section 1101’s subdivision (b) clarifies this general rule:
“Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
“Gang evidence should not be admitted at trial where its sole relevance is to show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.] Such evidence is only admissible when it is logically relevant to some material issue at trial other than character trait evidence. [Citation.]” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.)
However, “evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation--including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like--can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]” (Hernandez, supra, 33 Cal.4th at p. 1049.)
“Evidence of gang sociology and psychology is beyond common experience and thus a proper subject for expert testimony. [Citation.] ‘Case law holds that where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial. [Citations.]’ [Citation.]” (People v. Martinez (2003) 113 Cal.App.4th 400, 413-414.) “[E]vidence of gang membership has been admitted to prove bias, provided it is not cumulative to other properly admitted, and less inflammatory, evidence. [Citations.] Evidence of a relationship between a witness and a party is logically relevant to show bias. [Citation.]” (People v. Ruiz (1998) 62 Cal.App.4th 234, 240.) An expert’s testimony “about what it meant to be a ‘rat’ in gang culture” may be relevant “to help the jury understand discrepancies between some of the witnesses’ statements to the police and their testimony at trial, ” and for the jury to evaluate the witness’s credibility. (People v. Martinez, supra, 113 Cal.App.4th at pp. 413-414.) An expert may also testify about motive and intent in gang cases. (People v. Funes (1994) 23 Cal.App.4th 1506, 1518.)
The court’s evidentiary rulings under Evidence Code sections 1101 and 352 are reviewed for an abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1130; Olguin, supra, 31 Cal.App.4th at p. 1369.)
Defendant relies on the sequences from Yandell’s testimony, as quoted ante, and argues that Yandell’s assertions that gang members lie and lead criminal lifestyles undermined the credibility of defendant’s trial testimony that he was not involved in the robbery. However, Yandell never testified to his opinion about defendant’s character or reputation. Instead, he described the motives and biases of gang members based on his expertise about gang psychology and sociology in general.
In any event, we need not decide whether the court should have excluded Yandell’s testimony on these points, because any error was harmless since Yandell’s testimony did not undermine the credibility of defendant’s trial claim that he was not involved in the robbery. (See, e.g., People v. Mungia, supra, 44 Cal.4th at p. 1131.) Michael and Felecia testified that defendant participated in the planning and execution of the robbery, the officers found thousands of dollars in defendant’s bedroom, defendant admitted during his postarrest interview that he was at the store and hit the clerk in the head with a baseball bat, defendant identified himself in an image from the store’s surveillance videotape, defendant drafted a letter of apology to the clerk for inflicting the grievous head injuries, and defendant admitted the money in his bedroom was from the robbery. “In short, the evidence of defendant’s guilt was overwhelming, ” and any error in admitting the purported character evidence “did not prejudice defendant.” (Id. at p. 1132.)
V. SENTENCING ISSUES
Defendant’s final issue is that the court could not sentence him pursuant to the provisions of both the section 186.22 gang enhancement and the section 12022.53 firearm enhancement. In order to address this issue, we must examine the sentencing hearing, the interplay between the two statutes, and whether the court could rely on both statutes when it imposed the sentence in this case.
A. Background
Defendant was convicted of count I, kidnapping for the purpose of robbery, in violation of section 209, subdivision (b)(1); count II, robbery of the clerk as an employee of the store (§ 211), count III, assault with a firearm (§ 245, subd. (a)(2)); count IV, assault with a deadly weapon, a baseball bat (§ 245, subd. (a)(1)); and count V, conspiracy to commit robbery (§ 182, subd. (a)(1)). As to all counts, the jury found the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). As to count I, kidnapping for robbery, count II, robbery, and count V, conspiracy to commit robbery, the jury found that a principal used a firearm during the commission of the offenses (§ 12022.53, subds. (b) & (e)(1)).
As set forth ante, the trial evidence revealed that defendant carried a baseball bat and hit Yassen in the head during the robbery, and that two accomplices possessed firearms but the weapons were not discharged. There was no evidence that defendant personally used or discharged a firearm during the commission of the offenses.
As relevant to this issue, defendant was sentenced as to count I, kidnapping for robbery, to life with a minimum of 15 years before being eligible for parole pursuant to section 186.22, subdivision (b)(5), plus a consecutive term of 10 years for the section 12022.53, subdivision (e) firearm enhancement. The court imposed and stayed the terms imposed for the remaining counts and enhancements.
B. Section 186.22
Defendant contends that the court improperly imposed sentence based on both the gang enhancement and the firearm enhancement. Defendant argues the court lacked statutory authority to impose the firearm enhancement and it must be stricken.
We begin with the sentencing provisions when the gang enhancement is found true. Section 186.22, subdivision (b)(1) provides in relevant part that “[e]xcept as provided in paragraphs (4) and (5), ” any person who is convicted of a felony committed for the benefit of a criminal street gang, shall be punished with additional determinate terms to be served consecutive to the term imposed for the substantive offense. Section 186.22, subdivision (b)(4) provides for the imposition of an indeterminate term of life imprisonment where the underlying felony is one of certain specified offenses.
As applicable to this case, section 186.22, subdivision (b)(5) provides:
“Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.” (Italics added.)
In count I, defendant was convicted of kidnapping for robbery in violation of section 209, subdivision (b)(1), an offense which is normally punishable by an indeterminate term of life with the possibility of parole. The jury found the gang enhancement true as to that count. As we have explained, the jury’s verdict on count I and true finding on the gang enhancement are supported by substantial evidence. Therefore, it would seem that the court properly sentenced defendant as to count I, kidnapping for robbery, to life with a minimum of 15 years before being eligible for parole, based on the provisions of the gang enhancement in section 186.22, subdivision (b)(5). (See, e.g., People v. Lopez (2005) 34 Cal.4th 1002, 1004.)
In addition to the life term in count I, the court also imposed an additional term of 10 years based on the jury’s finding that a principal personally used a firearm during the commission of the gang-related offense, pursuant to section 12022.53, subdivisions (b) and (e)(1). We thus turn to the provisions of the firearm enhancement.
Section 12022.53 provides for the imposition of additional terms if a defendant is convicted of certain enumerated offenses; kidnapping for robbery is one of the enumerated offenses. (§ 12022.53, subd. (a)(3).) If, in the commission of the offense, the defendant personally uses a firearm, an additional term of 10 years must be imposed (§ 12022.53, subd. (b)); if the defendant personally and intentionally discharged a firearm, an additional term of 20 years is imposed (§ 12022.53, subd. (c)); if the defendant personally and intentionally discharged a firearm and proximately caused great bodily injury or death, an additional term of 25 years to life is imposed (§ 12022.53, subd. (d)).
As applicable to this case, section 12022.53, subdivision (e)(1) states:
“(e)(1) The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved:
“(A) The person violated subdivision (b) of Section 186.22.
“(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).” (Italics added.)
Section 12022.53, subdivision (e)(1) thus provides that a 10-year personal use enhancement, authorized by section 12022.53, subdivision (b), may be imposed when any principal personally uses a firearm during the commission of a gang-related offense; the defendant need not personally use the firearm to be subject to this enhancement.
As applied to the instant case, defendant was convicted of kidnapping for robbery, an enumerated offense in section 12022.53. While there is no evidence that defendant personally used a firearm, there is still evidence that a principal personally used a firearm during the commission of the gang-related offenses, based on evidence that two of defendant’s accomplices carried guns into the store. Thus, while defendant did not personally use a firearm during the commission of the gang-related kidnapping and robbery, he was still subject to an additional term of 10 years since a principal in the commission of the offense used a firearm. (§ 12022.53, subds. (b), (e)(1).) The trial court imposed the life term for count I, in accordance with section 186.22, subdivision (b)(5), and then imposed a consecutive term of 10 years pursuant to section 12022.53, subdivision (e)(1).
D. Imposition of terms under both statutes.
While defendant acknowledges that the 10-year term was potentially applicable under section 12022.53, subdivisions (b) and (e)(1), he argues that he could not be sentenced under both section 186.22, subdivision (b)(5) and section 12022.53, subdivision (e).
Defendant’s argument is based on section 12022.53, subdivision (e)(2), which states:
“An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.” (Italics added.)
Defendant correctly points out that the jury did not find that he personally used or discharged a firearm, there was no evidence to support such an inference, and the evidence instead showed that he used a baseball bat during the robbery. Defendant argues that even though the gang enhancement was found true, and he was sentenced in accordance with that enhancement, the court improperly imposed the additional 10-year term under section 12022.53 since he did not personally use or discharge a firearm.
The California Supreme Court has addressed the various sentencing possibilities when a defendant is subject to being sentenced pursuant to both section 186.22, subdivisions (b)(4) or (b)(5), and section 12022.53, subdivision (e).
“Section 12022.53’s sentencing scheme distinguishes between four types of offenders. The first group consists of those offenders who personally used or discharged a firearm in committing a gang-related offense that is specified in section 12022.53. These defendants are subject to both to the harsh enhancement provisions of 12022.53 and the gang-related sentence increases of section 186.22. The second group consists of accomplices to a gang-related offense specified in section 12022.53 in which … not the defendant but another principal personally used or discharged a firearm. They are subject to additional punishment under either section 12022.53 or the gang-related sentence increases under section 186.22, but not both. The third group consists of those who personally used or discharged a firearm during an offense that is specified in section 12022.53 but is not gang related. They are subject to additional punishment under section 12022.53, but because the crime is not gang related, the gang-related sentence increases of section 186.22 do not apply. The fourth group consists of those who committed a crime that is listed in section 12022.53 but is not gang related, and who did not personally use or discharge a firearm. This last group of defendants is not subject either to the gang-related sentence increases of section 186.22 (because the crime was not gang related) or to the additional punishment provisions of section 12022.53 (because the offender did not personally use or discharge a firearm).” (People v. Brookfield (2009) 47 Cal.4th 583, 593-594 (Brookfield), italics in original.)
In Brookfield, the defendant did not personally use a firearm during the gang-related crime of shooting at an inhabited dwelling. The trial court sentenced the defendant to life in prison with a minimum term of 15 years pursuant to section 186.22, subdivision (b)(4), with an additional 10 years under section 12022.53, subdivisions (b) and (e)(1). (Brookfield, supra, 47 Cal.4th at p. 587.) Brookfield held the defendant was subject to an increased sentenced under only one of the statutes in question, and the trial court was barred from imposing both the penalty of a life term under section 186.22, subdivision (b)(4), and the 10-year sentence enhancement under section 12022.53, subdivisions (b) and (e)(1). (Brookfield, supra, 47 Cal.4th at pp. 586, 595.) Brookfield concluded “the life sentence was proper but that the additional punishment for firearm use was not.” (Id. at p. 586.)
“In choosing which of those two provisions to apply, the trial court must, consistent with section 12022.53's subdivision (j), choose the provision that will result in a greater sentence. In this case, the greater penalty would be the life term under the alternate penalty provision in section 186.22(b)(4), not the 10-year sentence enhancement provided for in subdivisions (b) and (e)(1) of section 12022.53.” (Brookfield, supra, at p. 596.)
In People v. Gonzalez (2010) 180 Cal.App.4th 1420, two defendants were convicted of attempted murder (one premeditated, the other non-premeditated) and assault with a semiautomatic firearm, and associated gang and firearm enhancements were found true. The defendant who was convicted of attempted premeditated murder was sentenced to state prison for life with a 15-year minimum parole eligibility, and the court imposed an additional term of 25 years to life based on the firearm allegation, that a principal personally and intentionally discharged a firearm causing great bodily injury. Gonzalez noted there was “no finding that either defendant personally used a firearm.” (Id. at p. 1424.) Gonzalez relied on Brookfield and held “the trial court erred in imposing the gang statute’s minimum parole eligibility period in addition to the 25-year gun enhancement. Given the inapplicability of the 15-year eligibility period, the customary parole eligibility period of seven years for each of [defendant’s] consecutive life sentences applies.…” (Id. at p. 1427; see also People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282 [§ 12022.53, subd. (e)(2) prevents imposition of the 15-year minimum term specified in § 186.22, subd. (b)(5), as well as expanded liability under § 12022.53, subd. (e)(1), unless defendant personally used the firearm].)
E. Analysis
An unauthorized sentence may be corrected on appeal even if no objection was made in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 854; People v. Panizzon (1996) 13 Cal.4th 68, 88; People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) Where only one of the two enhancements may be imposed, the trial court must apply the one that will result in the greater sentence. (§ 12022.53, subd. (j); Brookfield, supra, 47 Cal.4th at p. 596.)
Defendant contends that since the jury never found that he personally used or discharged a firearm during the gang-related kidnapping and robbery, the court improperly imposed sentence for count I, kidnapping for robbery, based on both section 186.22, subdivision (b) and section 12022.53, subdivision (e).
Defendant is correct. There is no evidence that defendant personally used or discharged a firearm during the commission of the kidnapping and robbery, and the jury was not asked to make such a finding. Instead, the evidence showed that the other robbers possessed the firearms, while defendant used a baseball bat. As such, defendant was within the second group described in Brookfield that a principal other than defendant personally used a firearm during a gang-related offense and he was improperly sentenced under both statutory schemes.
In determining the correct sentence for count I, section 12022.53, subdivision (j) requires imposition of sentence under the statutory scheme which will result in the greater term. Having requested and received additional briefing on this matter, we agree with both defendant and the Attorney General that defendant will receive a greater term for count I if he is sentenced pursuant to the firearm enhancement (§ 12022.53, subds. (b), (e)(1)). He would first serve the determinate term of 10 years for the firearm enhancement (§ 669). He would then begin service of the indeterminate life term for count I, kidnapping for robbery, and he would not be eligible for parole until he has served at least seven years of that indeterminate term (§ 3046, subd. (a)(1).) While defendant is not being sentenced pursuant to the gang enhancement, that does not require this court to strike the jury’s true finding on the gang enhancement for count I.
We note that defendant might earn 15 percent conduct credits while serving the 10-year determinate term for the firearm enhancement (prior to serving at least seven years for the indeterminate term for count I). If he earns such credits, he would be eligible for his first parole hearing after having served approximately 15 and one-half years. By comparison, if defendant was sentenced pursuant to the gang enhancement, he would receive an indeterminate life term for count I, kidnapping for robbery, with a minimum period of 15 years until he would be eligible for parole. Thus, even assuming defendant might earn some conduct credits if sentenced pursuant to the firearm enhancement, he would still be required to serve slightly more time before being eligible for his first parole hearing than if sentenced pursuant to the gang enhancement.
DISPOSITION
Defendant’s sentence in count I, kidnapping for robbery, is stricken and modified to reflect that he is sentenced to an indeterminate term of life in prison (§ 209, subd. (b)(1)) and a determinate term of 10 years for the firearm enhancement (§ 12022.53, subds. (b), (e)(1)). In all other respects, the judgment is affirmed.
WE CONCUR: Hill, P.J., Wiseman, J.