Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. LF006914B James M. Stuart, Judge.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
A jury convicted defendant Julio Cesar Morales of conspiracy to commit petty theft, receiving stolen property, grand larceny, robbery, and carjacking (Pen. Code, § 182, subd. (a)(1); count 1); carjacking (§ 215, subd. (a); count 2), second degree robbery (§ 212.5, subd. (c); count 3), and assault with a deadly weapon (§ 245, subd. (a)(1); count 4). With respect to all counts, the jury found true allegations that defendant committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). With respect to counts 1 through 3, the jury found true allegations that defendant personally used a deadly weapon in the commission of the crimes (§ 12022, subd. (b)(1)). Defendant was sentenced to prison for a total of 16 years to life. On appeal, defendant contends the evidence was insufficient to support the section 186.22, subdivision (b) gang enhancement associated with each count. We reject defendant’s contention and affirm the judgment.
Further statutory references are to the Penal Code unless otherwise specified.
FACTS
Events Surrounding the Crimes
The victim in this case is Jorge Ruiz and the crimes arise out of an incident that occurred on November 14, 2006, around 1:00 p.m. According to Ruiz’s testimony, after he completed his work shift at a Camper World warehouse, he went to an abandoned house in the city of Arvin to rest before returning home. While Ruiz was resting, three men showed up in a pickup truck, including defendant, Sergio Morales, and Omar Morales.
We will hereafter refer to Sergio Morales and Omar Morales by their first names for the sake of clarity, and intend no disrespect.
Ruiz stepped outside the house. The three men approached and asked if he was alone. Scared, Ruiz told them he was with his girlfriend even though he was alone. Defendant broke away from the group, retrieved a small object from behind the passenger’s seat of the pickup, and put it in his back pocket. Ruiz was unable to see what the object was.
The three men then went into the garage where there was a camper shell. Ruiz asked if the camper shell was stolen and defendant said yes. Ruiz then helped the men load the camper shell on the back of their pickup.
Ruiz testified that the three men then got into the pickup and drove about 40 to 50 feet, before stopping and backing up to where Ruiz was standing. Defendant and Sergio got out of the pickup, and defendant asked Ruiz if he had a cell phone. Ruiz said yes and let defendant borrow his phone.
After defendant used Ruiz’s phone, he gave it back to Ruiz and started talking to Ruiz about whether he wanted to buy a stereo system for his car. Ruiz said he would like to buy one, and asked defendant for his address so he could go see it. Defendant told Ruiz to get Omar’s number.
Ruiz went to the pickup to talk to Omar. Defendant came up behind Ruiz and grabbed him by the neck and pointed a knife in the middle of Ruiz’s chest. The knife, which Ruiz identified at trial, was silver and did not have a handle. Defendant told Ruiz “not to move or else.”
Defendant directed Sergio to go through Ruiz’s pockets and to get everything. Defendant also told Sergio: “Get the driver’s license. Just in case he calls the cops, we know where he lives.” From Ruiz’s person, they took his wallet, money, driver’s license, a chain with two pendants, and his car keys. Ruiz estimated that he had $30 or $40 in his wallet and that the pendants were worth $200.
Defendant instructed Ruiz to sit on the ground. Defendant then got into the pickup while Sergio got into Ruiz’s car, and they both drove away. Ruiz had a number of items inside his car, including his CD player and speakers, a toolbox containing his tools for school, a volt meter, a box of motor oil, and a backpack containing a digital camera. Ruiz estimated the total value of the items taken from the car was $1200.
The next day, Sergio, who was driving Ruiz’s car, was pulled over and arrested. Ruiz testified that when the car was returned to him, it contained a knife that did not belong to him. The knife had a wooden handle and the blade was painted blue.
Sergio testified that he was arrested in connection with the November 14, 2006, incident and that a case was brought against him. As part of a plea agreement in that case, he agreed to testify truthfully in defendant’s trial in exchange for not being tried as an adult.
In his testimony, Sergio substantially confirmed Ruiz’s account of the incident. Sergio also testified that between the time they went to the garage and loaded the camper shell on the pickup, he and defendant had a conversation about robbing Ruiz. After they robbed Ruiz, they parked Ruiz’s car on the street and went home.
Later that night, Sergio and defendant went back to Ruiz’s car and took a number of items from it, including a cell phone, toolbox, stereo, and camera. Sergio and defendant split the items between them. They were planning to take the items to Ventura County. When asked where, Sergio testified: “Everywhere. We used to go sell them. We didn’t have a specific place.”
Sergio testified that he was originally from Moorpark in Ventura County and that defendant was from Oxnard which is also in Ventura County, but he did not know where Omar was originally from. Sergio had known defendant and Omar for about two or three months, and they were not related to each other, even though they had the same last name.
Sergio identified a CD belonging to him. It had writing on it that spelled “MPL.” Sergio testified that “MPL” stood for “Moorpark Locos,” which he described as “some guys that live in Moorpark.” Sergio claimed he wrote the letters “MPL” on the CD because that was where he came from. He also stated he used to affiliate with the group.
The Gang Evidence
Detective Robert Perez of the Oxnard Police Department testified as a gang expert for the prosecution. He was familiar with a gang in Oxnard known as the Colonia Chiques. According to Detective Perez, the Colonia Chiques is a multi-generational gang, originating in the 1930’s and 1940’s, and currently has about 900 members and associates.
Detective Perez explained that the Colonia Chiques identify with clothing related to the Dallas Cowboys and that the gang’s main symbol is a five-pointed star. The Colonia Chiques also identify with the colors blue, gray, and white. Colonia Chiques tattoos commonly include combinations of letters derived from the gang’s name, such as “CH”, “CO,” and “CO Boys.” The Colonia Chiques also align themselves with the Sureños or Southern Hispanic gangs. To show their alliance with Sureños, the Colonia Chiques identify with the number 13 and sometimes incorporate it into their graffiti.
When shown the knife found in the victim’s car, Detective Perez testified that it was “something we would find quite often on a gang member.” He explained: “[I]t’s easily concealable. It’s readily accessible. In this particular case … the blade has been painted blue which is significant if this was possessed by a Colonia Chiques gang member, due to the fact they associate themselves with the color blue.”
When questioned about the primary activities of the Colonia Chiques, Detective Perez stated: “They start out with graffiti, burglaries, robberies, auto thefts, carjackings, store robberies, assaults, assault with deadly weapons, up to and including attempted murder and murder.” He identified two predicate offenses committed by Colonia Chiques gang members. The offenses, robbery and assault with a deadly weapon, are both enumerated in section 186.22, subdivision (e).
Deputy Perez opined that defendant was an active member of the Colonia Chiques gang based on various factors, including his prior police contacts where he was contacted in the company of other gang member, arrests for gang-related crimes, possession of gang-related paraphernalia, and wearing of gang-related attire. Defendant had gang tattoos, including the letter “C” on his bicep, the letter “O” on his shoulder, and a five-pointed star on his chest. A number of gang-related items were seized from defendant’s bedroom in his Arvin home pursuant to a search warrant, including a Dallas Cowboys necklace and alarm clock, a blue bandana, and photos of defendant flashing gang signs. Also found in his room were a California identification card for Omar, and a sheet of binder paper with gang writings, including the words “Colonia,” “injunction,” and the moniker “Jay Dog.” The work “injunction” apparently referred to an injunction that was currently in place against gang members in Oxnard.
Based on the documentation he had on Omar, Deputy Perez opined that Omar had progressed to the point of being an active associate of the Colonia Chiques gang but had not yet become a full member. Omar had been contacted in the presence of other gang members but had fewer contacts than defendant. Deputy Perez also described Omar’s gang-related tattoos. On the back of his right hand, he had the number 805, which is the Ventura County area code, and inside the number zero in that tattoo was the letter “S”, showing he was aligning himself with the Sureño or Southern gang. In addition, Omar had tattoos spelling the letters “CH” on the web of his left hand, and the word “Chiques” on his left wrist. Photos and writings referencing the Colonia Chiques were also seized from Omar’s bedroom in his home in Arvin.
Detective Perez testified that, based on his training and experience and contact with the Ventura County Sheriff’s Department, “MPLS” stood for “Moorpark Locos,” a criminal street gang in the city of Moorpark. He explained that Moorpark is about 20 miles from the city of Oxnard. However, he was not specifically asked to offer an opinion as to Sergio’s gang membership.
After being presented with a hypothetical based on the November 14, 2006, incident, Detective Perez opined that the crimes were done for the benefit of a criminal street gang. He explained:
“[I]t benefits the gang on two factors. It benefits them monetarily and – with the property that they receive from the robbery. And it also benefits the gang itself based on the fear it instills not only in the victim but in the neighborhood and the community which shows that they are a gang or a group of people to be reckoned with.”
When questioned whether, based on the facts of the hypothetical, the crimes were done at the direction of a criminal street gang, Detective Perez answered in the affirmative, explaining:
“There is one gang member giving directions. It is at the direction of a certain gang member. [¶] In my experience, most criminal street gangs do not have an extremely structured – extreme structure as far as a president, vice-president, and board of directors. [¶] So in that particular case, in that hypothetical, the leader at that point was giving directions to the two other gang members.”
It was also Detective Perez’s opinion that the crimes were done in association with a criminal street gang because “the crimes were being committed by a known and documented criminal street gang member, which was also in association with other gang members in … the facts that were given.”
Detective Perez thought it was significant that the gang member in the hypothetical had the victim’s license taken from him. The detective explained:
“In my experience, what I’ve seen in cases I’ve personally investigated, it’s quite common for gang members to intimidate witnesses, first of all, to not report the crime entirely. And then afterwards if the crime is reported, continued effort to intimidate the witness not to show up in court to testify or to change their testimony.”
Detective Perez further testified that it would not be unusual for a gang based out of one geographical location to commit a crime in another, explaining:
“Based on my experience and some of the contacts I’ve had with agencies not only in this county, other counties in other states, we have had gang members from different gangs in the city of Oxnard commit crimes in other jurisdictions.
“Again that goes to gaining as much respect as possible. If they can go and commit a crime which has happened in the city of Las Vegas, for example, whether it be something as minor as graffiti, the people there in Las Vegas, including the gang members, know that the gang from Oxnard has been there.
“And it has also been documented where there’s been more violent crimes. Again they do not keep to a geographical location just because – they don’t reach the end of the street and say, ‘That’s my border. I can’t go any further.’ It actually becomes more respected if they can commit a crime elsewhere.”
The defense
Defendant’s sister, Christina Velazquez, testified that defendant was at her house in Oxnard at the time of the attack on Ruiz in Arvin. According to Velazquez’s testimony, defendant arrived at her house on November 12, 2006, and did not leave until November 18, 2006. She also offered photographs, taken with a digital camera, showing defendant with relatives in Oxnard. One of the photos showed a date-stamp of November 12, 2006, and another showed a date-stamp of November 14, 2006. Velazquez estimated that, since defendant had moved to Arvin with their parents in July, he had driven back to Oxnard about every two weeks, and had visited Velazquez about 12 times.
DISCUSSION
Sufficiency of the Evidence to Support the Gang Enhancements
Defendant contends insufficient evidence supports the gang enhancements. Specifically, defendant challenges the sufficiency of the evidence to show that the offenses were gang related and benefited the Colonia Chiques gang.
We review the sufficiency of the evidence to support an enhancement using the same substantial evidence standard we apply to a conviction. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.) In addressing a challenge to the sufficiency of the evidence supporting a conviction, the appellate court must determine “‘whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) In making this determination, “[the appellate court] must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence – evidence that is reasonable, credible and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
To establish the gang enhancement under section 186.22, subdivision (b), “the prosecution must prove that the crime for which the defendant was convicted had been ‘committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.’ [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) There may be instances when it is improper for an expert to express his or her opinion on the ultimate issue of the subjective knowledge or intent of the defendant on trial, or to render an opinion amounting to no more than expression of his or her general belief as to how the case should be decided. (See People v. Killebrew (2002) 103 Cal.App.4th 644, 651-652, 658; cf. People v. Gonzalez (2006) 38 Cal.4th 932, 946.) Generally speaking, however, where a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs – including the motivation for an individual member’s actions – is permissible, and a jury may rely on such testimony to render a finding on the gang allegation. (People v. Ward (2005) 36 Cal.4th 186, 210; People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048; People v. Gardeley, supra, 14 Cal.4th at p. 617; People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931; People v. Valdez (1997) 58 Cal.App.4th 494, 506.)
The prosecution must also prove “that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period.” (People v. Gardeley, supra, 14 Cal.4th at p. 617, italics omitted.) Defendant does not challenge the evidence concerning the latter elements, and thus implicitly concedes the sufficiency of the evidence supporting them.
As indicated above, defendant claims there was insufficient evidence to show that the current offenses were gang related. He places strong reliance on the facts that defendant and his companions did not advertise any gang involvement (such as yelling gang slogans or flashing gang signs) during the November 14, 2006, incident, the crimes did not occur in Colonia Chiques territory, and the victim was neither a gang member nor did he suspect the crimes committed against him were gang related. In defendant’s view, Detective Perez’s conclusions about the gang-related nature of the crimes were nothing but sheer speculation and conjecture.
We disagree with defendant’s assessment of Detective Perez’s testimony. It is entirely proper for a qualified expert as Perez is here, when presented with hypothetical scenarios “properly rooted in the evidence presented at trial” (People v. Ferraez, supra, 112 Cal.App.4th at p. 930; see also People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4), to testify how particular criminal conduct may enhance a gang’s reputation or how a gang may use proceeds from a crime to further other criminal activity. (Accord, People v. Gonzalez, supra, 38 Cal.4th at p. 946, fn. 3; People v. Ward, supra, 36 Cal.4th at p. 209.) Such matters are “‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’” (People v. Ferraez, supra, 112 Cal.App.4th at p. 931; e.g., People v. Gonzalez, supra, 38 Cal.4th at pp. 945-946.)
The court in People v. Ferraez, supra, addressed an argument similar to that made by defendant here, that the evidence in that case showed his intent was not gang related but instead “entirely personal: to quickly get $400 with which to buy himself a car.” (Id. at p. 930.) In rejecting that contention, the appellate court found testimony from a gang expert based upon hypothetical scenarios, combined with evidence that the defendant planned to sell the drugs in another gang’s territory and earlier admissions that he was a member of different gang on friendly terms with the other gang, was sufficient for the jury to reasonably infer the crime was gang related. (Id. at p. 931.)
Likewise, in People v. Morales (2003) 112 Cal.App.4th 1176, the court of appeal held a jury could reasonably infer both the requisite “benefit/direction/association element” and the specific intent element of the gang enhancement by evidence that a crime was committed by a gang member acting with fellow gang members. (Id. at p. 1198.) Evidence that the defendant intended to commit robberies and intended to commit them in association with persons who he knew to be members of his gang allowed the court to conclude it was “fairly inferable” that he had such specific intent. (Ibid; see also People v. Martinez (2004) 116 Cal.App.4th 753, 756-757, 762 [court found no substantial evidence to support imposition of section 186.30 gang registration requirement on no contest plea of auto burglary where probation report did not identify the defendant’s accomplice in the crime as a gang member nor did the report provide any indication the burglary was directed by, associated with, or benefitted the defendant’s criminal street gang].)
Here, Detective Perez’s opinion was coupled with evidence that the crimes were jointly committed by a member and associate of the Colonia Chiques gang, and an admitted affiliate of the Moorpark Locos, another gang based in Ventura County. Detective Perez explained how the types of crimes committed in this case would benefit the gang monetarily and enhance the gang’s reputation by instilling fear in the community. His explanation was bolstered by evidence that defendant and Sergio were planning to sell the items they stole in Ventura County. In addition, there was evidence that defendant travelled to Oxnard (i.e., Colonia Chiques territory) every couple weeks. Detective Perez also opined that it was not unusual for gang members to commit crimes outside their territory and was yet another means of enhancing a gang’s reputation. Defendant’s use of intimidation tactics against the victim was also consistent with gang activity as described by the expert.
Considering the expert testimony in conjunction with the remaining evidence (see People v. Gamez (1991) 235 Cal.App.3d 957, 978, disapproved on other grounds in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10), jurors reasonably could have concluded that what took place here was more than merely three people, who happened to be gang members or associates, committing crimes as a group “on a frolic and detour unrelated to the gang.” (People v. Morales, supra, 112 Cal.App.4th at p. 1198.) Although there was no evidence of overt indications of gang affiliation or gang-related motives, jurors reasonably could have determined that that news of defendant’s and his accomplices’ crimes would spread by word of mouth, and the proceeds would benefit the gang monetarily, particularly in light of evidence of defendant’s frequent trips to Oxnard and plans to sell the stolen items in Ventura County. Accordingly, jurors reasonably could have concluded both that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang, and that defendant had the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b); see People v. Morales, supra, 112 Cal.App.4th at pp. 1197-1198; In re Ramon T. (1997) 57 Cal.App.4th 201, 207-208.) This case thus is clearly distinguishable from situations in which the defendant’s criminal history and gang affiliation constituted the only evidence a crime was gang related (see People v. Martinez, supra, 116 Cal.App.4th at pp. 761-762), or the only crime consisted of passive conduct by a lone individual and the expert’s testimony did not merely give meaning to the defendant’s actions, but instead amounted to personal belief as to the defendant’s subjective intent (see In re Frank S. (2006) 141 Cal.App.4th 1192, 1196-1199).
Accordingly, defendant’s strong reliance on In re Frank S., supra, 141 Cal.App.4th 1192 is misplaced. There, the minor was stopped by a Visalia police officer after he failed to stop at a red traffic light while riding a bicycle. The minor was discovered to be in possession of a knife, a bindle of methamphetamine and a red bandana. The minor told the officer that he had been attacked two days ago and needed the knife for protection against “‘the Southerners’” because they believed that he supported northern street gangs. (Id. at p. 1195.) The minor also said that he has several friends in the northern gangs. At a contested jurisdictional hearing, a gang expert opined that the minor was a Norteño gang member. She also opined that “the minor possessed the knife to protect himself. She also stated a gang member would use the knife for protection from rival gang members and to assault rival gangs. When asked how the minor’s possession of the knife benefited the Nortenos, she responded it helps provide them protection should they be assaulted.” (Id. at pp. 1195-1196.) The juvenile court found true allegations that the minor possessed a concealed dirk or dagger and a street gang enhancement.
We reversed the gang enhancement and published the case “to emphasize that crimes may not be found to be gang-related based solely upon a perpetrator’s criminal history and gang affiliations.” (In re Frank S., supra, 141 Cal.App.4th at p. 1195.) We concluded that the gang expert was improperly allowed to offer an opinion concerning the minor’s specific intent in possessing the knife and found that the record lacked substantial evidence supporting the specific intent element. We explained:
“In the present case, the expert simply informed the judge of her belief of the minor’s intent with possession of the knife, an issue reserved to the trier of fact.… [U]nlike in other cases, the prosecution presented no evidence other than the expert’s opinion regarding gangs in general and the expert’s improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang ....’ (§ 186.22, subd. (b)(1).) The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor’s statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor’s specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.” (In re Frank S., supra, 141 Cal.App.4th at p. 1199.)
This case is distinguishable from Frank S. in two important respects. First, the record reflects that the trial court and counsel were fully aware of the limits on expert testimony to prove a gang enhancement and Detective Perez, the gang expert, did not offer an impermissible opinion concerning an issue reserved for the trier of fact. He did not offer an opinion about defendant’s specific intent. After being presented with a hypothetical scenario similar to the facts of this case, he opined that in such a situation the crimes would benefit the gang. This is permissible. An expert is not precluded from offering an opinion that is premised on a hypothetical about the way certain conduct could benefit a gang. “Such an opinion was not tantamount to an opinion of guilt or … that the enhancement allegation was true, for there were other elements to the allegation that had to be proved.” (People v. Valdez, supra, 58 Cal.App.4th at p. 509.)
Second, there is substantial evidence in the record before us from which a trier of fact reasonably could infer that defendant committed the crimes with the requisite specific intent. Defendant did not act alone but was accompanied by two others with established gang ties. In re Frank S. stated that evidence showing that the defendant was with other gang members is relevant. (In re Frank S., supra, 141 Cal.App.4th at p. 1199.) Even though the crimes did not occur within Colonia Chiques territory, Detective Perez testified it is not unusual for gang members to commit crimes outside the geographical boundary of their gang. Moreover, as discussed, there was evidence defendant planned to sell the stolen items in the county where his gang was based and that he visited his gang’s territory fairly regularly.
In sum, the evidence is adequate to provide a factual basis supporting Detective Perez’s expert testimony. Detective Perez did not impermissibly offer an opinion concerning an ultimate issue that properly is reserved for determination by the trier of fact. When all reasonable inferences are drawn in favor of the judgment, there is substantial evidence from which a reasonable trier of fact could conclude beyond a reasonable doubt that defendant committed the crimes with the requisite specific intent. Therefore, we conclude that sufficient evidence supports the jury’s true findings on the gang enhancements.
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J. KANE, J.