Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Nos. 1049429,1049430 Loretta M. Begen, Judge.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant James Lynn Bartlett, Jr.
Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant Gregory Lee Norsworthy.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
Appellants James Lynn Bartlett, Jr., and Gregory Lee Norsworthy were jointly tried and convicted of several offenses arising out of the shooting of Kevin Bruce Qualls. Norsworthy contends (1) the evidence was insufficient to sustain the conviction for active participation in a criminal street gang; (2) the term of imprisonment imposed on the assault with a firearm conviction should have been stayed; and (3) one verdict form contains clerical errors. Bartlett contends the trial court abused its discretion by denying his motion for a mistrial. The People contend the abstract of judgment does not reflect an enhancement found true by the jury and imposed by the trial court.
We will affirm the judgment, with directions that the verdict form and abstract of judgment be corrected.
FACTUAL AND PROCEDURAL SUMMARY
The day after Bartlett was released from prison on parole, he and Norsworthy, along with Norman and Darlene Climer, drove to the home of Doreen Carr and Tommy Patterson. Bartlett and Norsworthy walked up to the home of Carr and Patterson; the Climers waited in the car. Patterson knew Bartlett and Norsworthy, so he let them into his home. Once inside, Norsworthy brandished a gun and pushed Patterson against the refrigerator and held him in place with his arm across Patterson’s throat. Norsworthy asked Patterson how to find Kevin Bruce Qualls. When Carr tried to leave the room, Bartlett shoved her against a wall and held her in place for about five minutes.
Patterson initially did not tell Bartlett and Norsworthy how to find Qualls, prompting Norsworthy to waive the gun about and point it at Carr. Patterson then agreed to tell Bartlett and Norsworthy where Qualls lived.
Norsworthy and Bartlett forced Patterson to drive them to Qualls’s house. The Climers followed in their own car.
Qualls was working on a car outside his home when Norsworthy and Bartlett pulled up and walked toward him. Norsworthy stated, “We got a beef with you,” and Bartlett then kicked Qualls, knocking him down. Norsworthy walked up and shot Qualls in the neck. Martin M. saw the shooting from across the street and saw Norsworthy shoot Qualls “point blank, right in the face.”
Jennifer Williams and April Magniez resided in the home with Qualls. Williams recalled Qualls stating, “Don’t do this here, not in front of my grandchildren.” After Qualls was shot, Bartlett and Norsworthy ran back to the Climers’ car and drove around the block, where Bartlett and Norsworthy hopped out. Bartlett ran back to Qualls’s house, where he found Williams administering CPR to Qualls. Bartlett shoved her away and appeared to try to asphyxiate Qualls.
Bartlett was present when ambulance and police crews arrived. He was “mad-dogging” witnesses and trying to intimidate them by staring them down. Some witnesses turned and walked away without talking to police.
Detective Allen Brocchini was called to the scene. He saw Bartlett there; Bartlett was shirtless and bore numerous gang tattoos.
After the shooting, Patterson took off in the other car. He returned home, distraught and shaking. Patterson asked Carr to take his young daughter and flee the house because he was afraid for their safety. Carr eventually entered a witness protection program.
The shooting rendered Qualls a quadriplegic. He was on a respirator for 18 months following the shooting and needed constant nursing care. Nurses assisted Qualls with coughing because he was unable to cough on his own. Qualls could spend only four or five hours daily in a wheelchair and suffered from bedsores because he was bedridden for about 20 hours a day. Qualls needed nursing assistance while in court and testifying.
Qualls testified that 6 to 12 months before the shooting, Norsworthy beat him up. Norsworthy was upset that Qualls’s brother had become a police informer. Qualls stated that Norsworthy ordered him, Qualls, to kill his own brother for being an informer. Qualls and Bartlett had been good friends and were related by marriage.
Brocchini testified as a gang expert. He testified that the Peckerwoods were a White gang with over 40 members. The Aryan Brotherhood is a prison gang that uses the Peckerwood subset to intimidate witnesses and make money through criminal enterprises. Bartlett had numerous Peckerwood and White supremacist gang tattoos on his body. Brocchini also testified that Norsworthy had been convicted of two enumerated offenses in 1999.
While awaiting trial, Bartlett and Norsworthy each were housed alone in a single-man cell. A search of each cell revealed gang correspondence, with references to the Peckerwoods, gang monikers, and other self-admitted gang members.
Brocchini opined that Bartlett and Norsworthy were active participants in a criminal street gang, the Peckerwoods, at the time Qualls was shot. Brocchini was of the opinion that Bartlett was a member, having admitted membership, and Norsworthy was an associate.
Norsworthy did not testify and presented no evidence in his defense. Bartlett testified the shooting was “a complete accident.”
DISCUSSION
Bartlett’s sole contention on appeal is that the trial court erred in denying his motion for mistrial.
Norsworthy contends (1) the evidence was insufficient to support the Penal Code section 186.22, subdivision (a) conviction, and (2) the term of imprisonment imposed for count 6, assault with a firearm, should have been stayed pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise noted.
I. Mistrial Motion
While testifying, Magen Qualls stated that Magniez did not feel threatened by Bartlett because Bartlett “has never hurt anybody.” The prosecutor then asked Magen if she had seen Bartlett be physically violent to any family member, to which Magen responded, “No, I haven’t.” The prosecutor persisted, asking Magen if she had seen Bartlett strike a family member. Defense counsel objected to the question as improper and the objection was sustained. The prosecutor then asked Magen, “Isn’t it true you saw [Bartlett] punch your mom once?”
We refer to Magen Qualls by her first name, not out of disrespect but to avoid any confusion to the reader.
At this point, defense counsel objected on the basis that it was improper character evidence and asked the trial court to declare a mistrial. The prosecutor argued it was impeachment. The trial court sustained the objection and asked the jury to leave the courtroom. After the jury left, the trial court found the prosecutor in contempt of court and sanctioned him $100. The trial court noted that Magen had not answered the question, stated that it would admonish the jury not to assume the truth of the prosecutor’s question, and denied the mistrial motion. When the jury returned to the courtroom, the trial court read CALJIC No. 0.50 to the jury:
“Statements made by the attorneys during the trial are not evidence. If an objection is sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection. Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence, and it may be considered only as it helps you to understand the answer.”
We review the denial of a motion for mistrial under the abuse of discretion standard. (People v. Cunningham (2001) 25 Cal.4th 926, 984.) A motion for mistrial is directed to the sound discretion of the trial court. “A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854, italics added.)
Bartlett contends the admonition did not cure any harm because it is unlikely the jury followed the admonition. We disagree. Bartlett’s claim that this was a protracted exchange and therefore the jury did not follow the admonition is without support in the record or law.
This was a lengthy trial. The transcript is over 2,000 pages. The exchange complained of by Bartlett amounted to at most three questions and occupied no more than two pages of transcript. This hardly constitutes a protracted exchange.
Bartlett also contends the admonition was insufficient because he was charged with victimizing three women and the question insinuated he beat women. The jury, however, did not hear any evidence that Bartlett had struck a family member; Magen denied ever witnessing such an event.
Finally, we presume the jury understood and followed the instructions, including the admonition, unless there is evidence demonstrating the contrary. (People v. Mendoza (2007) 42 Cal.4th 686, 699.) The trial court admonished the jury immediately upon its return to the courtroom, and there is no indication in the record that the jury disregarded the admonishment.
In People v. Price (1991) 1 Cal.4th 324, 430, a detective testified at trial that the defendant said he had been “‘in prison for the past eleven years.’” The trial court denied defendant’s motion for a mistrial, but admonished the jury “not to consider evidence that defendant had been in prison ‘in determining his guilt in this particular trial or to determine that he’s a bad person.’” (Ibid.) The California Supreme Court upheld the denial of defendant’s motion on the ground that the trial court’s admonition to the jury had been sufficient to cure any harm.
In this case, as in Price, the trial court’s admonition was sufficient to cure any harm to defendant. It is only in the exceptional case that the improper subject matter is of such a character that it cannot be removed by the court’s admonitions. (People v. Seiterle (1963) 59 Cal.2d 703, 710.)
We conclude the trial court did not err in denying Bartlett’s motion for mistrial.
II. Section 654
We next determine whether, given the acts for which the trial court sentenced Norsworthy, consecutive terms were mandatory pursuant to the three strikes law. Norsworthy contends the trial court should have stayed imposition of punishment for the count 6 offense because it arose out of the same set of operative facts as counts 5 and 7. Count 5 charged Norsworthy with forcible false imprisonment of Carr; count 6 charged assault with a firearm on Carr and Patterson; and count 7 charged the kidnapping of Patterson. The trial court imposed consecutive sentences for the convictions on all three counts.
While it is unclear whether the trial court or parties below recognized the existence of this issue, it has been addressed on appeal. If imposition of consecutive sentences was mandatory, then any other sentence is unauthorized, and we must affirm the result reached by the trial court here, regardless of its reasoning (see, e.g., People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1119, fn. 4).
Sections 667, subdivision (c)(6) and 1170.12, subdivision (a)(6) require that a defendant be sentenced consecutively on each count “[i]f there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts.” (People v. Hendrix (1997) 16 Cal.4th 508, 512 (Hendrix).) “[S]ection 654 is irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively. Rather, if a defendant commits two crimes, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, whether concurrent or consecutive. [Citation.] Thus, the question of whether sentences should be concurrent or consecutive is separate from the question of whether section 654 prohibits multiple punishment. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 594 (Deloza).)
“Even though under the three strikes law, section 654 is irrelevant to mandatory consecutive sentencing, mandatory consecutive sentencing may be relevant to section 654.… [T]he mandatory consecutive sentencing provisions state that, where the ‘same occasion/same operative facts’ test is not satisfied, the trial court ‘shall’ sentence consecutively, ‘[n]otwithstanding any other law .…’ [Citations.]” (People v. Danowski (1999) 74 Cal.App.4th 815, 823.) “The three strikes law is a comprehensive, integrated sentencing scheme which applies to all cases coming within its terms. [Citations.]” (People v. Casper (2004) 33 Cal.4th 38, 41-42, italics added.) Thus, sections 667, subdivision (c)(6) and 1170.12, subdivision (a)(6) “mandate[ ] consecutive sentencing for any current felony [convictions] not committed on the same occasion, and not arising from the same set of operative facts. Consecutive sentencing is not mandated under [these provisions] if the current [felony convictions] are committed on the same occasion or arise from the same set of operative facts.” (Hendrix, supra, 16 Cal.4th at p. 513.)
“The phrase ‘committed on the same occasion’ is commonly understood to refer to at least a close temporal and spatial proximity between two events, although it may involve other factors as well.” (Deloza, supra, 18 Cal.4th at p. 594.) It is properly found when crimes occur almost simultaneously or through the same criminal act directed against multiple victims, but not when they are committed at separate locations or against entirely separate groups of victims, even if the later crimes occurred while the perpetrator was still in flight from the initial crime scene. (People v. Lawrence (2000) 24 Cal.4th 219, 228-229 (Lawrence).)
With respect to whether the convictions arose from the “same set of operative facts,” the Supreme Court has interpreted the phrase to mean “sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted.” (Lawrence, supra, 24 Cal.4th at p. 233.) The operative facts are those which prove the charged offense. (Id. at p. 231.)
The Lawrence court found the rationale of People v. Durant (1999) 68 Cal.App.4th 1393 (Durant) “instructive on the meaning and probable intent behind use of the phrase ‘same set of operative facts’ .…” (Lawrence, supra, 24 Cal.4th at p. 233.) In Durant, the Court of Appeal reversed the imposition of concurrent sentences and remanded for resentencing where the defendant was convicted of one count of burglary and two counts of attempted burglary, all of which were committed within the same housing complex and without intervening events. In part, the court stated:
“In applying this definition to any particular case, the nature and elements of the current charged offense becomes highly relevant.… However, where the elements of the original crime have been satisfied, any crime subsequently committed will not arise from the same set of operative facts underlying the completed crime; rather such crime is necessarily committed at a different time.… We therefore believe the elements and nature of a charged crime as being continuous or complete as defined for purposes of prosecution are additional factors the court must consider in determining whether multiple current crimes were committed on the ‘same occasion’ and arose from the ‘same set of operative facts’ when the offenses are committed more than seconds apart.” (Durant, at pp. 1405-1406.)
Here, section 654 does not operate to stay imposition of punishment on counts 5, 6, and 7. First, counts 5 and 7 are offenses against different victims; section 654 does not prohibit multiple punishments for crimes against multiple victims. (Lawrence, supra, 24 Cal.4th at p. 229.)
Construing Lawrence and Durant, we conclude that count 6 and counts 5 and 7 did not arise from the same set of operative facts. The operative facts of the offenses of false imprisonment and kidnapping are distinct from the elements of assault with a firearm, even though the offenses may have been committed only minutes apart. The evidence established that the false imprisonment of Carr occurred when Norsworthy and Bartlett entered Carr and Patterson’s home. Bartlett pushed Carr against the wall of her home, restraining her for about five minutes, and told her she was “not going anywhere.” While Bartlett restrained Carr, Norsworthy used a gun to force Patterson against the refrigerator. While holding the weapon, Norsworthy squeezed Patterson’s throat in an effort to get him to talk. When Patterson refused to talk, Norsworthy pointed the gun at Carr and told Patterson to cooperate or “We will get her too.” Using the gun to force Patterson against the refrigerator and then pointing the weapon at and threatening Carr constitute the operative facts of the assault with a firearm against Patterson and Carr. The kidnapping of Patterson occurred when he was forced to leave his home and drive Norsworthy and Bartlett while they looked for Qualls.
The assault with a firearm offense involved different operative facts. The assault with a firearm against Carr was separate and distinct from the act of restraining her against the wall. The false imprisonment of Carr was complete when she was restrained. When the gun was pointed at her a few minutes later, it constituted the separate offense of assault with a firearm. Using the gun to force Patterson against the refrigerator constituted the assault with a firearm, which was complete before Patterson was kidnapped by forcing him to leave the house with Bartlett and Norsworthy.
Because Norsworthy’s current felony convictions do not arise out of the same set of operative facts, the trial court correctly imposed consecutive terms of imprisonment.
III. Gang Offense
Norsworthy challenges the sufficiency of the evidence to support his conviction for violating section 186.22, subdivision (a). Norsworthy contends Brocchini was not qualified to render an expert opinion. Norsworthy also contends the evidence failed to establish that (1) he knew of the Peckerwoods’ pattern of criminal activities; (2) the Peckerwoods’ primary activities were enumerated offenses; and (3) he promoted or assisted in the gang’s criminal conduct.
Substantive offense
The Street Terrorism Enforcement and Prevention (STEP) Act was enacted by the Legislature in 1988, based on the Legislature’s finding that “the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.” (§ 186.21.) The STEP Act creates both a substantive offense under section 186.22, subdivision (a) and a sentence enhancement under section 186.22, subdivision (b)(1). (In re Jose P. (2003) 106 Cal.App.4th 458, 466 (Jose P.).) Section 186.22, subdivision (a) defines the substantive offense and states:
“Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished [as specified].”
The substantive gang offense of active participation in a criminal street gang under section 186.22, subdivision (a) requires proof that the defendant (1) actively participated in a criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and (2) willfully promoted, furthered, or assisted in felonious criminal conduct by members of the gang. (People v. Robles (2000) 23 Cal.4th 1106, 1111, 1115 (Robles); Jose P., supra, 106 Cal.App.4th at p. 466; People v. Bautista (2005) 125 Cal.App.4th 646, 656, fn. 5 (Bautista).)
By its plain terms, section 186.22, subdivision (a) applies only to a defendant who has knowledge that the members of his or her criminal street gang “engage in or have engaged in a pattern of criminal gang activity.” (Ibid.) Under section 186.22, subdivision (e), a “‘pattern of criminal gang activity’” is established by two statutorily enumerated offenses occurring within a three-year period, so long as at least one offense occurred after 1988, “and the offenses were committed on separate occasions, or by two or more persons.” (Ibid.) Thus, to violate section 186.22, subdivision (a), a defendant must be aware that his or her gang members participated in at least two offenses meeting the statutory requirements within a three-year time frame. The charged offense can serve as one of the predicate offenses. (People v. Loeun (1997) 17 Cal.4th 1, 8 (Loeun).) The prosecution, however, need not prove the defendant had actual knowledge of the specific predicate offenses relied upon by the People. (People v. Gamez (1991) 235 Cal.App.3d 957, 975-976 (Gamez), disapproved on other grounds in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10 (Gardeley).)
A person need not be a gang member to be guilty of the gang offense; however, “he or she must have had more than a nominal or passive involvement with the gang, knowing of the gang’s pattern of criminal activity, and must have aided and abetted a separate felony committed by gang members.” (Jose P., supra, 106 Cal.App.4th at p. 466.) “The provision ‘punishes active gang participation where the defendant promotes or assists felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself.’ [Citation.] Thus, it ‘applies to the perpetrator of felonious gang-related criminal conduct .…’ [Citation.]” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 (Ferraez).)
Expert testimony
Here, Brocchini testified that he had served as a police officer for 20 years and had qualified as an expert on gangs in over 35 cases. Additionally, Brocchini had worked for four years in the jail, where he regularly came into contact with and interviewed “[h]undreds” of inmates who were gang members. In both Stanislaus and Alameda Counties, Brocchini had been a patrol officer and had come into contact with gangs and investigated numerous gang-related crimes. For five years, Brocchini was assigned to the Street Terrorist Apprehension Team (STAT), where his primary duties consisted of investigating gang crimes, interviewing gang members, and gathering documentation on gangs. In 1997, Brocchini was promoted to the rank of detective in the STAT unit.
While in the STAT unit, Brocchini became familiar with White gangs in Modesto. He attended training conferences and classes where the subject was White supremacist gangs, and he learned the geographic areas in and around Modesto that were claimed as territory by the White gangs. Brocchini shared White gang information with other agencies. He had arrested Peckerwood and Nazi Lowrider gang members, although Brocchini previously had not testified in a White gang jury trial.
Over Norsworthy’s objection, the trial court ruled Brocchini was qualified to testify as a gang expert.
We begin with the admissibility and parameters of the testimony of an expert witness. “A witness is qualified to testify as an expert if the witness has special knowledge, skill, experience, or education pertaining to the matter on which the testimony is offered. [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 177.) Expert opinion testimony is admissible if the subject matter of the testimony is “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a); Gardeley, supra, 14 Cal.4th at p. 617.) The admission of expert opinion testimony is within the sound discretion of the trial court. Even though facts may be within the knowledge or understanding of the trier of fact, the conclusions to be drawn therefrom may require expert testimony. (People v. Harvey (1991) 233 Cal.App.3d 1206, 1226-1227.)
The decision of a trial court to admit expert testimony will not be disturbed on appeal unless an abuse of discretion is shown. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299.) “The exercise of discretion is not grounds for reversal unless ‘“the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.”’ [Citations.]” (People v. Ochoa (2001) 26 Cal.4th 398, 437-438, disapproved on other grounds in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.) Moreover, “‘the admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would “assist” the jury. It will be excluded only when it would add nothing at all to the jury’s common fund of information.’” (McAlpin, at pp. 1299-1300; see also People v. Prince (2007) 40 Cal.4th 1179, 1222.)
“It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation.” (Ferraez, supra, 112 Cal.App.4th at p. 930; see also People v. Valdez (1997) 58 Cal.App.4th 494, 506; In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).)
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. Sengpadychith (2001) 26 Cal.4th 316, 324 (Sengpadychith); Gardeley, supra, 14 Cal.4th at p. 620; People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9.) A gang expert’s opinion also 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. (Sengpadychith, at p. 324; Gardeley, at p. 620; Vy, at p. 1223, fn. 9.)
The evidence here clearly established that Brocchini had specialized knowledge, experience, and education with respect to White gangs in the Modesto area. His testimony appropriately was based on investigations, interviews, training, and information obtained from other agencies. (Sengpadychith, supra, 26 Cal.4th at p. 324.) The record before us discloses that the trial court did not abuse its discretion in permitting Brocchini to testify as an expert on White gangs.
Substantial evidence of primary activities
Section 186.22, subdivision (a) defines the substantive offense, which “‘punishes active gang participation where the defendant promotes or assists felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself.’ [Citation.] Thus, it ‘applies to the perpetrator of felonious gang-related criminal conduct .…’ [Citation.]” (Ferraez, supra, 112 Cal.App.4th at p. 930.) The substantive gang offense of active participation in a criminal street gang requires proof that the defendant (1) actively participated in a criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and (2) willfully promoted, furthered, or assisted in felonious criminal conduct by members of the gang. (Bautista, supra, 125 Cal.App.4th at p. 656, fn. 5; Robles, supra, 23 Cal.4th at pp. 1111, 1115; Jose P., supra, 106 Cal.App.4th at p. 466.)
Norsworthy claims there was insufficient evidence that the Peckerwoods’ primary activities were enumerated offenses, or that he had any knowledge of the gang’s pattern of criminal activity. We disagree.
Evidence of past or present enumerated offenses being committed by one or more members of the gang is relevant when determining the gang’s primary activities. (Sengpadychith, supra, 26 Cal.4th at p. 323.) Proof of the primary activities may be established through expert testimony. (Id. at p. 324.) There is no requirement that the offenders committing predicate offenses be gang members at the time the offenses were committed. (People v. Augborne (2002) 104 Cal.App.4th 362, 370-371 (Augborne).)
Brocchini testified that White supremacist gangs, including the Peckerwoods, sold drugs, intimidated witnesses, and stole cars. Grand theft and witness intimidation are two of the statutorily enumerated offenses. (§ 186.22, subd. (e).) Additionally, there was evidence that Norsworthy had committed three offenses between 1998 and 1999, which were used as predicate offenses. Norsworthy stipulated that two of these convictions were for statutorily enumerated offenses set forth in section 186.22, subdivision (e).
Culture and habits of criminal street gangs meet the criteria for the admission of expert testimony 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 p. 1196.) The expert testimony may address “the primary activities of a specific gang.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 657.)
In addition, the current offenses for which Norsworthy and Bartlett were convicted included statutorily enumerated offenses. Assault with a deadly weapon, witness intimidation, and kidnapping are among the statutorily enumerated offenses. (§ 186.22, subd. (e).) A charged offense can serve as one of the predicate offenses. (Loeun, supra, 17 Cal.4th at p. 8.)
Norsworthy’s stipulation regarding his prior offenses, Brocchini’s expert testimony, and the current offenses constituted substantial evidence that the Peckerwoods’ primary activities were enumerated offenses set forth in section 186.22, subdivision (e).
Knowledge requirement
Norsworthy also contends the People failed to prove that he knew of the Peckerwoods’ criminal activities because he knew only of his own personal conduct and not of the criminal activities of the Peckerwoods. We disagree.
To violate section 186.22, subdivision (a), a defendant must be aware that his or her gang members participated in at least two offenses meeting the statutory requirements within a three-year time frame. The charged offense can serve as one of the predicate offenses. (Loeun, supra, 17 Cal.4th at p. 8.) It need not be proven a defendant had actual knowledge of the specific predicate offenses relied upon by the People. (Gamez, supra, 235 Cal.App.3d at pp. 975-976.)
Norsworthy’s current offenses were committed with Bartlett, a heavily tattooed and self-admitted Peckerwood member. Furthermore, Norsworthy previously had been convicted of enumerated offenses. There is no requirement that the people committing the predicate offenses be gang members at the time the offenses were committed. (Augborne, supra, 104 Cal.App.4th at pp. 370-371.)
Clearly, Norsworthy had knowledge of the pattern of criminal activity because his own conduct and that of Bartlett’s, committed in Norsworthy’s presence, established the requisite pattern.
Peckerwood gang
Norsworthy also contends there was insufficient evidence proving the Peckerwoods were a gang or that he promoted the Peckerwoods’ activities. Norsworthy’s contention borders on specious.
Section 186.22, subdivision (f) defines a criminal street gang. First, the ongoing participation of three or more persons having a common name; second, the group’s primary activities include one or more of the enumerated offenses; and third, the group’s members either separately or together have engaged in a pattern of criminal activity.
Brocchini’s testimony provided evidence of the first two elements necessary to establish that the Peckerwoods were a gang and not merely “poor white[s].” Brocchini testified there were more than 40 active Peckerwoods and their primary activities included witness intimidation and auto theft, which are enumerated activities.
The third element of the definition is satisfied by Norsworthy’s and Bartlett’s conduct. Norsworthy had prior convictions for enumerated offenses, in addition to the criminal activity he engaged in with Bartlett, which formed the basis of the current convictions.
We also summarily reject Norsworthy’s claim that the People failed to prove he assisted in any criminal conduct by a gang member. Norsworthy was convicted of several criminal offenses, including enumerated offenses, arising out of his activities with Bartlett, an admitted Peckerwood member, who also was convicted of violating section 186.22, subdivision (a).
Finally, we reject Norsworthy’s claim that he unlawfully was penalized for his association with his cousin, Bartlett. Norsworthy was not penalized for associating with Bartlett; he was penalized for engaging in criminal activities with Bartlett. Section 186.22, subdivision (a) penalizes conduct, not association. (Loeun, supra, 17 Cal.4th at pp. 10-11.)
IV. Correction to Abstract of Judgment and Verdict Form
Norsworthy contends the verdict form for his count 2 offense does not accurately reflect the offenses and enhancements that he was charged with and of which he stands convicted. The People concede the point. The verdict form should be corrected to reflect a conviction for violating section 245, subdivision (a)(2) and an enhancement under section 12022.7, subdivision (b).
The People note that the abstract of judgment contains clerical errors in that it fails to list the true finding on the section 12022.7, subdivision (b) enhancement. The abstract of judgment should be corrected to reflect the verdict and the trial court’s pronouncement of judgment.
DISPOSITION
The judgments are affirmed. The verdict form for count 2 for Norsworthy shall be corrected as set forth herein. Norsworthy’s abstract of judgment shall be corrected to reflect the section 12022.7, subdivision (b) enhancement on the count 2 offense.
WE CONCUR, GOMES, J.,KANE, J.