Opinion
G043978 Super. Ct. No. 09CF0921
10-24-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS CAMARENA, Defendant and Appellant.
Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Anthony DaSilva and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Anthony DaSilva and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
Jose Luis Camarena appeals from a judgment after a jury convicted him of possession of a firearm by a felon, street terrorism, possession of a controlled substance with a firearm, and possession of ammunition by a prohibited person, and found true he committed the first and last offense for the benefit of a criminal street gang. Camarena argues insufficient evidence supports the criminal street gang offense and enhancements, the prosecutor committed misconduct, and he is entitled to additional presentence custody credits. We agree insufficient evidence supports the jury's finding Camarena committed possession of a firearm and ammunition by a prohibited person for the benefit of a criminal street gang, and remand the matter for resentencing. His other claims have no merit, and we affirm the judgment in all other respects.
FACTS
About 5:00 p.m. one evening in April 2009, Officers Jorge Lopez and John Rodriguez were on patrol on 17th Street in Santa Ana. They pulled over Camarena, who was driving a truck with loud music emanating from inside the truck. When they approached the truck, Lopez saw .22 caliber ammunition on the rear passenger side seat. Lopez asked Camarena about the ammunition, and Camarena replied he had recently placed it there. The officers searched the truck and found a loaded Colt Derringer on the rear driver's side floorboard. They also found additional ammunition in a bag on the front driver's side floorboard. Finally, they found what was later determined to be 34 milligrams of methamphetamine. The officers determined the legal owner of the Colt Derringer reported the gun stolen the previous month. Lopez arrested Camarena and advised him of his Miranda rights. His head was shaved, and he had the following tattoos: a fly on his hand, "714" on his head, and "Santana" on the back of his neck.
Miranda v. Arizona (1966) 384 U.S. 436.
Camarena admitted the gun, ammunition, and drugs were his. Camarena told Lopez he bought the gun from a friend for $100 about two or three weeks earlier. Camarena stated he bought the gun for protection and knew it worked because he fired it into the air. When Lopez asked him whether he had enemies, Camarena replied he did not have any enemies, but stated "people [are] crazy out there." As to the methamphetamine, Camarena stated he did not realize there were drugs still in the car as he thought he had used it all. He explained he recently began using methamphetamine again because of the death of his unborn child. He admitted to being "a documented Santa Nita gang member." He did not tell Lopez that he had left the gang.
A second amended information charged Camarena with possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (count 1), street terrorism (§ 186.22, subd. (a)) (count 2), possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)) (count 3), and possession of ammunition by a prohibited person (§ 12316, subd. (b)(1)) (count 4). The second amended information alleged he committed counts 1, 3, and 4 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The second amended information also alleged he suffered four prior convictions resulting in prison terms and that he had not remained free of custody (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
At trial, the prosecutor offered the testimony of Officer Gil Hernandez, an expert in criminal street gangs. After detailing his background, training, and experience, Hernandez testified concerning the culture and habits of traditional, turf-oriented Hispanic criminal street gangs, including the importance of respect, the significance of guns and violence, and how to join and quit a gang. Hernandez explained when a gang member possesses a gun, the gun belongs to the gang and gang members pass the gun to other gang members. After explaining how a person joins a gang, Hernandez testified concerning how one quits a gang. He explained a person would "no longer participate[] in the activities, no longer commit the crimes that are typical of gang members, they move out of the area completely where they have no contact with these gang members . . . ."
Hernandez opined Santa Nita was a criminal street gang as statutorily defined. He testified concerning the predicate offenses involving Santa Nita gang member Elias Arturo Diaz on August 31, 2007, for taking and driving a stolen automobile and street terrorism, and Santa Nita gang member Jonathan Gabriel Martinez on May 18, 2007, for unlawful automobile taking and street terrorism. He described its founding and explained Santa Nita had at least 50 members, they have a common name and symbol (S.N., S.N.R., or S.N. 13), they wear the color baby blue, and their primary activities are possession of firearms and robberies. Hernandez did not testify concerning Santa Nita's boundaries but outlined on a map the area depicting its boundaries.
Hernandez opined Camarena was an active participant in Santa Nita at the time of the offenses based on Street Terrorism Enforcement and Prevention Act (STEP) notices and the circumstances of the offense. He stated Camarena received STEP notices on July 7, 2007, and January 17, 2009. With respect to the 2007 notice, he stated Camarena had "714" and "Santana" tattoos, which based on his experience demonstrates he is from an Orange County, Santa Ana gang. Camarena also told the officer he "walked into the Santa Nita gang." However, Camarena told the officer he was not "active." Camarena added he was a "Southsider" in prison. As to the 2009 notice, he stated Camarena told the officer his gang moniker, or nickname, was "'Mosca,'" which means fly, and he had a tattoo of a fly on his hand. Camarena initially claimed Santa Nita, but later added "it was a long time ago[.]" Hernandez stated the fact Camarena possessed a gun, which was one of Santa Nita's primary activities, and that he told Lopez people were after him, were factors he relied on in forming his opinion even though Camarena was not in Santa Nita claimed gang territory at the time of the offenses. He explained gang members recently have begun denying gang membership because of the increased sentencing penalties.
Hernandez explained a STEP notice is a document a police officer uses to record a contact with a possible gang member. The STEP notice includes the details of the contact and the person's physical characteristics. The STEP document also notifies the person that the gang the person is affiliating with is a criminal street gang and notifies the recipient the gang commits certain crimes.
Finally, the prosecutor asked Hernandez the following question: "Hypothetically speaking, assume you have a situation where you have an active participant in the Santa Nita criminal street gang who is contacted in Santa Ana, not in his gang's territory, but in Santa Ana, and he's in possession of a loaded stolen firearm. [¶]How, if at all, does that benefit, further, or promote felonious conduct by members of that gang?"
Hernandez responded: "It promotes or benefits the members of the gang in several ways. One, if the member commits a crime, such as a robbery or carjacking or just even pointing the gun at somebody and asking them where they're from, other gangs and other gang neighborhoods become aware of the incidents and it adds to the reputation of that gang as a gang that won't hesitate to use a firearm, will be violent if they need to, and that they have firearms at their disposal. . . . [¶] Secondly, the fact that the person is outside of their neighborhood and they're armed with a - a firearm tells me that they don't feel comfortable when they're outside of the neighborhood, that they need to be ready for some type of confrontation with the firearm."
On cross-examination, Hernandez admitted that during the 2007 contact, Camarena was alone, admitted he "walked in" Santa Nita when he was 15 years old (approximately 14 years prior) but denied being an active gang member, was not in Santa Nita claimed territory, and gave the officer an address in Costa Mesa as his residence. He also conceded that during the January 2009 contact, which was not in Santa Nita claimed territory, Camarena was with someone but there was no evidence that person was a gang member, and Camarena stated he was in a gang "a long time ago[.]" Defense counsel also briefly questioned Hernandez concerning a March 2009 contact where Camarena was alone outside Santa Nita claimed territory. Hernandez testified there was no evidence Camarena had any tattoos depicting Santa Nita's signs or symbols. Hernandez testified Camarena was arrested in Santa Nita claimed territory in 1999 in a stolen vehicle but he admitted there were no gang allegations in that case. He admitted that although he had patrolled Santa Nita claimed territory every day, he had never contacted Camarena. He also admitted Camarena had never been charged with a gang offense before the current case. Hernandez acknowledged Camarena admitted to Lopez he carried a gun because he was fearful, and he admitted his fear could have stemmed from the fact he left the Santa Nita gang and they were after him.
Camarena offered the testimony of Jimmy Cha. Cha testified he is a licensed California attorney who was incarcerated from 1996 to 2000. Cha testified concerning prison politics and how race and geography largely determine an inmate's daily life. He stated most inmates have tattoos whether they are in a gang or not.
In rebuttal, the prosecutor recalled Hernandez. Hernandez testified there was a gang injunction against Santa Nita. He stated Camarena is listed on the Santa Nita gang injunction, but he has not been served with the injunction.
During closing argument the prosecutor argued: "All right. So gang detective's opinion. The jury is to consider the gang detective's opinion. What weight you want to give it is up to you. Now, he stated his reasons for the opinion. Because what we -- what you do is you put on the expert, who has an opinion, and that's how you prove these cases. [¶] If he just said to you, 'in my opinion, the defendant is an active participant in the gang,' and we didn't ask him why he thought that, then you wouldn't be able to evaluate his opinion. You wouldn't know what kind of weight to give his opinion. That's why we went into all the details about defendant's background, the tattoos, the contacts, the prison, all that stuff. That's for you to evaluate his opinion.
So consider the reasons he gave for his opinion. Consider the totality of the circumstances. Again, including this crime, the primary activity of Santa Nita. Consider the reliability of his opinion. And consider this: why would he opine the defendant is an active participant if he didn't believe it? [¶] Now, I know there's some people who think, well, you know, these cops, these gang cops are just hard chargers. Well, they don't have the time in Santa Ana, or the incentive, to prosecute nongang members for gang crimes. In Santa Ana, they've got their hands full, as we all know. So essentially he's not going to say it unless he believes it. [¶] So again, the only way to prove gang charges is through a gang expert's testimony. You can't get there. That's the only way to prove it, and that's why we put him on. [¶] So simplified for you is if you believe . . . Hernandez, then you convict [Camarena] of the gang charges. If you don't believe . . . Hernandez, then acquit [Camarena] of the gang charges. It's that simple."
During rebuttal, the prosecutor argued: "All right. Here's the bottom line: it's unreasonable to acquit. If we say that this defendant is not guilty of the gang charges, then basically what we're saying is the gang participants who are caught with firearms, all they have to do is deny gang affiliation, challenge the gang affiliation, okay, and they'll never be convicted of any gang crimes. That's contrary to the law, that's contrary to common sense, and that's contrary to an orderly society."
The jury convicted Camarena of all counts and found true the street terrorism enhancement as to counts 1 and 4, but not as to count 3. After Camarena admitted he suffered two prior convictions, the trial court, upon the prosecutor's motion, dismissed the other two prior conviction allegations. The trial court sentenced Camarena to prison for eight years as follows: the upper term of three years on count 1 plus a consecutive three-year term for its accompanying street terrorism enhancement; and consecutive one-year terms on each of the prior convictions. The court awarded Camarena 260 days of actual credit and 130 days of local conduct credit for a total of 390 days of presentence custody credits.
DISCUSSION
I. Sufficiency of the Evidence
"In considering a challenge to the sufficiency of the evidence . . . , [the appellate court] review[s] the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] [It] presume[s] every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar))
A. Street Terrorism Substantive Offense-Count 2
Camarena contends there was no evidence supporting any of the elements of section 186.22, subdivision (a). We disagree.
The street terrorism substantive offense, section 186.22, subdivision (a), 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 . . . in the state prison for 16 months, or two or three years." There are three elements to the substantive street terrorism offense: (1) active participation in a criminal street gang; (2) knowledge the gang's members have engaged in a pattern of criminal gang activity; and (3) willfully promoting, furthering, or assisting in any felonious criminal conduct by members of the gang. (Albillar, supra, 51 Cal.4th at p. 56.)
1. Active Participant in a Criminal Street Gang
a. Active Participant
Camarena asserts there was no evidence he was an active participant in Santa Nita at the time of the offense. He spends much time discussing his STEP notices and how they do not support Hernandez's opinion he was an active participant in Santa Nita when he committed the offenses. Unfortunately for Camarena, Hernandez's testimony was not the only evidence on this issue.
"In the context of the [STEP] Act [citation], active participation is 'involvement with a criminal street gang that is more than nominal or passive.' (People v. Castenada (2000) 23 Cal.4th 743, 747 . . . [(Castaneda)].) It is not enough that a defendant have actively participated in a criminal street gang at any point in time, however. A defendant's active participation must be shown at or reasonably near the time of the crime. Section 186.22, subdivision (a)[,] uses the present tense—'actively participates'—as did the Supreme Court in . . . Castenada—'involvement . . . that is more than nominal or passive.' [Citation.]" (People v. Garcia (2007) 153 Cal.App.4th 1499, 1509.)
After Lopez arrested Camarena and advised him of his Miranda rights, Camarena admitted the gun, ammunition, and drugs were his. Camarena also admitted to being "a documented Santa Nita gang member." Camarena never claimed he had left the gang. Camarena's admission was buttressed by Hernandez's testimony. Hernandez opined Camarena was an active participant in Santa Nita at the time of the offenses based on his prior contacts with police where he admitted to walking into the gang as recently as three months before the offenses here. Additionally, Hernandez explained that although none of Camarena's tattoos portrayed Santa Nita, he did have tattoos indicating he belonged to a gang in Orange County and Santa Ana. Importantly, Camarena acquired one of those tattoos (the fly on his hand representing his gang moniker), after the July 2007 contact where Camarena told the officer he was no longer active in the gang. Hernandez also found it important Camarena possessed a gun, one of Santa Nita's primary activities. Finally, Hernandez explained gang members have begun to deny gang membership because of the harsh criminal penalties. The jury heard evidence Camarena claimed he left Santa Nita, but after the jury heard the evidence he admitted to Lopez he was a documented Santa Nita gang member, the jury clearly rejected his claim he had left the gang. (People v. Ochoa (1998) 19 Cal.4th 353, 401.) This was sufficient evidence for the jury to reasonably conclude Camarena was an active participant in Santa Nita at the time of the offenses.
Camarena falls into the same trap most defendants succumb to when arguing insufficient evidence—he cites to only that evidence that supports his contention. It is well established that on appeal we presume every fact in support of the judgment and we cannot reverse the judgment simply because the circumstances might also reasonably be reconciled with a contrary finding.
Camarena also complains Hernandez told the jury to rely only on those facts that supported his opinion, and "contorted his testimony several times to fit his script." The trial court instructed the jury with CALCRIM No. 332, "Expert Witness Testimony," and the jury was free to disregard any opinion that was "unbelievable, unreasonable, or unsupported by the evidence."
b. Criminal Street Gang
Camarena asserts there was no evidence Santa Nita was a criminal street gang within the meaning of section 186.22 because there was no "factual foundation for [Hernandez's] opinion that Santa Nita has as one of its primary activities the commission of robbery and possession of firearms." Not so.
Section 186.22, subdivision (f), defines a "'criminal street gang'" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."
Section 186.22, subdivision (e), states: "As used in this chapter, 'pattern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons: [¶] . . . [¶] (2) Robbery, as defined in Chapter 4 (commencing with [s]ection 211) of Title 8 of Part 1. [¶] . . . [¶] (23) Possession of a pistol, revolver, or other firearm capable of being concealed upon the person in violation of paragraph (1) of subdivision (a) of [s]ection 12101. [¶] . . . [¶] (25) Theft and unlawful taking or driving of a vehicle, as defined in [s]ection 10851 of the Vehicle Code."
"[E]vidence of either past or present criminal acts listed in subdivision (e) of section 186.22 is admissible to establish the statutorily required primary activities of the alleged criminal street gang. . . . 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. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members. . . . [¶] 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. Also sufficient might be expert testimony . . . ." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324 (Sengpadychith) [gang expert based opinion on conversations with defendant and gang members, personal investigations of hundreds of gang crimes, and information from other law enforcement officers].) A police officer's gang expert testimony can be sufficient evidence establishing section 186.22's required elements. (People v. Gardeley (1996) 14 Cal.4th 605, 617-620 (Gardeley).)
Here, Hernandez testified he had spoken with numerous members of the Santa Nita criminal street gang in both consensual and custodial settings. He stated he had investigated numerous cases involving the Santa Nita criminal street gang and spoken with no less than 1,000 gang members since joining the Santa Ana police department seven years earlier. He also testified concerning the statutorily required predicate offenses. He explained Martinez and Diaz, two known Santa Nita gang members, unlawfully took automobiles in May 2007 and August 2007, respectively. Hernandez also demonstrated he was knowledgeable about the culture of the Santa Nita criminal street gang. He detailed their membership, symbols, color, and territory. Finally, when the prosecutor asked Hernandez what Santa Nita's primary activities were, Hernandez testified, "The primary activities of Santa Nita, in my experience, are possession of deadly weapons and robberies." When the prosecutor asked whether he meant firearms, Hernandez responded, "Yes."
Relying on another case from this court, In re Alexander L. (2007) 149 Cal.App.4th 605, Camarena contends Hernandez's testimony was insufficient because it lacked foundation—there was no evidence of how Hernandez knew of or had obtained this information or whether it was reliable. His reliance on Alexander L. is misplaced because in that case, the expert never specifically testified about the primary activities of the gang. The expert 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." (Id. at pp. 611-612.)
Here, on the other hand, Hernandez specifically testified as to Santa Nita's primary activities, possession of firearms and robberies. Additionally, he had both the training and experience as a gang expert. His seven years dealing with the gang, including investigations and personal conversations with members suffices to establish the foundation for his testimony. (Gardeley, supra, 14 Cal.4th at pp. 619-620.)
Camarena's argument the particular predicate offenses relied upon by Hernandez will not suffice because Hernandez failed to identify those offenses as primary activities of Santa Nita is unpersuasive. There is no requirement the gang expert rely on predicate offenses that are also primary activities of the gang. Thus, Hernandez's testimony based on his experience and the circumstances of the offense was sufficient evidence for the jury to reasonably conclude Santa Nita was a criminal street gang.
2. Knowledge of a Pattern of Criminal Gang Activity
Camarena asserts there was no evidence he had knowledge Santa Nita engaged in a pattern of criminal gang activity. Again, we disagree.
Section 186.22, subdivision (e), states: "As used in this chapter, 'pattern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons: [¶] . . . [¶] (2) Robbery, as defined in Chapter 4 (commencing with [s]ection 211) of Title 8 of Part 1. [¶] . . . [¶] (23) Possession of a pistol, revolver, or other firearm capable of being concealed upon the person in violation of paragraph (1) of subdivision (a) of [s]ection 12101."
As we explain above, the prosecutor offered evidence of the statutorily required predicate offenses. Camarena does not seriously dispute that. Instead, he claims there was no evidence he knew that Santa Nita engaged in a pattern of criminal gang activity. The record belies his contention. We detail above the facts demonstrating Camarena walked into Santa Nita gang at the age of 15 and was an active participant in Santa Nita at the time of the offenses. Moreover, Camarena received STEP notices in July 2007, January 2009, and March 2009. There was evidence a STEP notice notifies the recipient that that gang he is affiliating with commits certain crimes and that gang is in fact a criminal street gang. Based on this evidence the jury could reasonably conclude that at the time of the offense Camarena was an active participant in Santa Nita and had knowledge the Santa Nita gang engaged in a pattern of criminal gang activity. (People v. Lewis (2001) 26 Cal.4th 334, 379 [state of mind such as knowledge frequently requires reliance on circumstantial evidence].)
3. Promoted, Furthered, or Assisted any Felonious Criminal Gang Conduct
Camarena claims insufficient evidence supports his conviction because he acted alone. The identical issue is currently before the California Supreme Court in People v. Rodriguez (2010) 188 Cal.App.4th 722, review granted Jan. 12, 2011, S187680, and another case from this court, People v. Cabrera (2010) 191 Cal.App.4th 276 (Cabrera), review granted Mar. 23, 2011, S189414.
In a recent case from this court, People v. Gonzales (2011) 199 Cal.App.4th 219 (Gonzales), another panel of this court rejected defendant's claim he could not be convicted of violating section 186.22, subdivision (a), when police stopped him, alone with methamphetamine and a gun. In doing so, the court found instructive People v. Ngoun (2001) 88 Cal.App.4th 432, People v. Salcido (2007) 149 Cal.App.4th 356, and People v. Sanchez (2009) 179 Cal.App.4th 1297, and concluded that "someone can 'promote' or 'further' felonious criminal conduct by acting alone, without assistance or participation by others." (Gonzales, supra, 199 Cal.App.4th at p. 231.) The Gonzales court reasoned, "The Legislature surely did not intend for an active gang participant committing a felony alone to be punished less harshly than an active gang participant assisting such felonious conduct." (Ibid.) We find Ngoun, Salcido, Sanchez, and Gonzales persuasive and conclude a defendant like Camarena can be convicted of violating section 186.22, subdivision (a), when acting alone.
B. Street Terrorism Enhancement-Counts 1 and 4
Camarena asserts insufficient evidence supports the jury's findings he committed counts 1 and 4 for the benefit of a criminal street gang. He contends there was no evidence he committed the offenses: (1) "for the benefit of, at the direction of, or in association with any criminal street gang"; and (2) "with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." We agree.
"[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished . . . ." (§ 186.22, subd. (b)(1).)
Section 186.22, subdivision (b)(1), does not criminalize mere gang membership. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) As clarified by Albillar, supra, 51 Cal.4th at page 60, although not every crime committed by gang members is related to a gang for purposes of the first prong, a crime can satisfy the first prong when it is committed in association with the gang, or when it is committed for the benefit of the gang. The Albillar court also explained the second prong, which required the defendant commit the gang-related felony "with the specific intent to promote, further, or assist in any criminal conduct by gang members" (§ 186.22, subd. (b)(1)), need not encompass proof the defendant committed the crime with the specific intent to promote, further, or assist other criminal conduct by gang members. Instead, that subdivision "encompasses the specific intent to promote, further, or assist in any criminal conduct by gang members—including the current offenses—and not merely other criminal conduct by gang members." (Albillar, supra, 51 Cal.4th at pp. 64-65.) The Albillar court stated a gang expert's opinion is admissible as part of the evidentiary showing on how the crimes can benefit the gang. (Id. at pp. 63-64.)
However, "[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 (Ochoa).)
Ochoa, supra, 179 Cal.App.4th 650, is instructive. In that case, the jury convicted defendant of carjacking and found he committed the act for the benefit of a gang. (Id. at p. 652.) The evidence at trial demonstrated the victim was sitting in a parked car when defendant approached, pulled a shotgun out of his jacket, pointed it at the victim's face and told the victim to give him the vehicle. Defendant got into the vehicle and drove away. (Id. at p. 653.) Officers testified defendant had previously identified himself to law enforcement as a member of a gang and had gang tattoos on his back and wrist. (Id. at p. 654.) A gang expert opined defendant committed the carjacking for the benefit of his gang. The expert concluded the carjacking would benefit the gang by "providing general transportation to the gang's members, by enabling transportation of narcotics for sale by the gang, by enabling transportation to commit further crimes by the gang, by providing economic benefit to the gang by sale of the vehicle, by elevating defendant's status within the gang, and by raising the gang's reputation in the community." (Id. at pp. 655-656.)
The Ochoa court ruled there was insufficient evidence to support a gang enhancement. (Ochoa, supra, 179 Cal.App.4th at p. 661.) In doing so, the court explained defendant was alone, "did not call out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti while committing the instant offenses." (Id. at p. 662.) The court stated there was no evidence the crimes were committed in defendant's claimed gang territory or the territory of any of its rivals. The court reasoned the gang expert had no specific evidentiary support for making such inferences. The court went on to conclude that the expert's testimony purely speculative. (Id. at pp. 662-663.)
Here, the evidence portrayed in the light most favorable to the judgment, and importantly the only evidence the Attorney General cites to concerning the street terrorism enhancement, consists of the following: Camarena, a self-proclaimed documented Santa Nita gang member, possessed a gun and ammunition outside of Santa Nita territory. Hernandez opined gun possession was one of Santa Nita's primary activities, and when a gang member possesses a gun the gun belongs to the entire gang. Hernandez testified possession of the gun benefits felonious conduct by gang members because if the gang member uses the gun and other gangs learn the gang member used a gun, the gang member who used the gun will increase his and his gang's reputation. He added gang members use weapons to impose their will on others. He also explained the gang member does not feel safe outside his claimed territory.
There was no evidentiary support for Hernandez's opinions and thus his testimony was too speculative. It was undisputed Hernandez was alone outside claimed Santa Nita gang territory with a loaded gun. There were no other Santa Nita gang members in his company. Although Hernandez opined this tended to establish Camarena was fearful outside his gang's claimed territory, there was no evidence concerning which gang's territory he was in, if any, whether that gang was a Santa Nita rival, or whether there was a specific gang dispute that made Camarena fearful to the point he expected trouble. There was no evidence Camarena was wearing Santa Nita gang colors, displayed gang signs, or claimed Santa Nita membership. The only evidence supporting the gang enhancements was Hernandez's opinion, and this was insufficient. Therefore, we reverse the jury's findings Camarena committed counts 1 and 4 for the benefit of a criminal street gang.
II. Prosecutorial Misconduct
Camarena claims the prosecutor committed misconduct during closing argument when he misstated the law and vouched for the expert gang witness. Conceding his defense counsel did not object to the alleged errors, or request an admonition, Camarena alternatively, asserts his defense counsel was ineffective. The Attorney General responds Camarena forfeited appellate review of the issue, the prosecutor did not commit misconduct, and he was not prejudiced by any error. As we explain below, we conclude the prosecutor did not commit misconduct.
A. Forfeiture
"'In order to preserve a claim of [prosecutorial] misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.]' [Citation.]" (People v. Parson (2008) 44 Cal.4th 332, 359.) Here, Camarena's defense counsel did not object to the prosecutor's statements and request an admonition, and therefore, his claims are forfeited. However, he also asserts his defense counsel was prejudicially ineffective. We will address Camarena's claims within that context.
B. Ineffective Assistance of Counsel
"In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsel's performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsel's performance prejudiced defendant's case in such a manner that his representation 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' [Citations.] Moreover, 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.] If defendant fails to show that he was prejudiced by counsel's performance, we may reject his ineffective assistance claim without determining whether counsel's performance was inadequate. [Citation.]" (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Camarena complains the prosecutor committed misconduct in essentially two respects: by arguing the only way to prove gang charges is through expert testimony; and by arguing Hernandez was so busy investigating crimes in Santa Ana, he must truly believe his own testimony.
"A prosecutor's misconduct violates the Fourteenth Amendment to the federal Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct 'that does not render a criminal trial fundamentally unfair' violates California law 'only if it involves "'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"' [Citations.]" (People v. Harrison (2005) 35 Cal.4th 208, 242.)
We cannot say the prosecutor's isolated comments infected the trial with such unfairness as to deny Camarena due process. Nor were his comments deceptive or reprehensible. Although it is true there is other evidence a prosecutor may rely on to prove gang charges, it is undeniable that in nearly all gang cases a gang expert testifies on behalf of the prosecution to help explain the culture, habit, and customs of criminal street gangs. In gang cases, there is often times other evidence of gang indicia, but a gang expert generally testifies to assist a jury in evaluating the significance of the gang evidence.
And although a prosecutor may not suggest matters outside the record to establish the veracity of a witness (People v. Woods (2006) 146 Cal.App.4th 106, 113), a prosecutor may state matters not in evidence that are common knowledge or are illustrations drawn from common experience (People v. Stanley (2006) 39 Cal.4th 913, 951-952). It is common knowledge with shrinking government budgets law enforcement agencies are stretched to the breaking point in investigating crimes. We interpret the prosecutor's comment as assuring the jury Hernandez truly believed his own testimony otherwise he would not have taken the time to come to court to testify. The prosecutor also repeatedly informed the jury it must evaluate Hernandez's testimony and give it the weight the jury thought it deserved. The prosecutor also told the jury it could disregard his testimony if the jury found it unbelievable.
Finally, a prosecutor is permitted to describe defense counsel's interpretation of the evidence, and deficiencies in defense counsel's tactics. (People v. Bemore (2000) 22 Cal.4th 809, 846.) Here, the prosecutor was permitted to rebut Camarena's defense counsel's argument he was innocent of the gang charges by asserting defense counsel's claims were unreasonable. Therefore, based on the prosecutor's isolated statements, we cannot say defense counsel provided ineffective assistance of counsel in failing to object to the statements.
III. Presentence Custody Credit
Camarena contends that if we reverse his conviction for street terrorism or the street terrorism enhancements, we must award him additional presentence custody credits. At trial, defense counsel informed the trial court Camarena had 260 days of actual credit. Based on our review of the record, Camarena was arrested on April 9, 2009, and the trial court sentenced him on May 28, 2010, assuming he remained in custody during the entire period. Based on our calculations, Camarena earned 414 days of actual credit. Because we reverse the jury's findings on the street terrorism enhancements and resentencing is required, we invite the trial court to revisit the issue of Camarena's presentence custody credits.
DISPOSITION
We reverse the jury's findings on the street terrorism enhancements as to counts 1 and 4 and remand the matter for resentencing. In all other respects, the judgment is affirmed.
O'LEARY, J. WE CONCUR: RYLAARSDAM, ACTING P. J. MOORE, J.