Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06CF1625 Craig E. Robison, Judge.
John E. Edwards, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
A jury convicted Rafael Corrales of possession of methamphetamine for sale (Health & Saf. Code, § 11378, subd. (a)) and active participation in a criminal street gang. (Pen. Code, § 186.22, subd. (a).) The jury also found Corrales committed the crime of possession of methamphetamine for sale “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).) The trial court suspended imposition of sentence and placed Corrales on formal probation for three years.
All further statutory references are to the Penal Code unless otherwise stated.
Corrales contends the trial court abused its discretion by admitting expert testimony on the habits, culture, and psychology of criminal street gangs, by allowing the prosecution’s gang expert to state opinions based on speculation and “faulty assumptions that undermine freedom of association,” and by failing to exclude evidence that was not timely disclosed to the defense. He further contends the trial court erred by giving a modified version of CALCRIM No. 1400, the standard instruction on the crime of active participation in a criminal street gang. We affirm the judgment.
I
FACTS AND PROCEDURAL HISTORY
The Crime
At approximately 10:40 p.m. on May 26, 2006, two officers from the Orange Police Department, John Mancini and Phillip McMullin, were patrolling an alley known for narcotics trafficking and for being part of the Orange County Criminals (OCC) criminal street gang’s turf. The officers saw Corrales standing next to a car, and a second individual who was walking five to ten feet away from him. McMullin stopped the second individual and asked him what he was doing and if he was with Corrales. The man said he was walking home after a soccer game, that he lived in a nearby apartment complex, and that he was not with Corrales. McMullin decided to let the man go when he said he was not with Corrales.
While McMullin talked to the other person, Mancini, who recognized Corrales, asked him “what’s up . . . .” As Corrales turned to face Mancini, Mancini saw a small piece of blue plastic fall out of Corrales’ front pants pocket. Based on Mancini’s experience and training, he thought the item looked liked something that could be used to package methamphetamine. Mancini decided to search Corrales. His found a square metal box with a sliding lid in Corrales’ front pants pocket. When he slid open the lid, Mancini found five more blue plastic packages and one clear plastic baggie. He also confiscated Corrales’ cellular telephone and $209 cash. Corrales told Mancini he was selling drugs because he had recently lost his job. Laboratory tests confirmed that Corrales possessed a total of 4.180 grams of methamphetamine.
Pretrial Motions
Defense counsel filed several motions in limine, including a motion to suppress Corrales’ post arrest statements, another to exclude evidence of Corrales’ prior misdemeanor conviction, and one to exclude evidence of a June 27, 2006 report from Orange County jail personnel that Corrales had carved gang graffiti into his assigned bunk. The court granted Corrales motion to exclude evidence of the prior misdemeanor conviction. The court denied his motion to suppress after finding that Corrales received proper Miranda warnings, and that Corrales knowingly and voluntarily waived his right to remain silent. With respect to the June 27, 2006 report from the Orange County jail, the court agreed with Corrales’ trial counsel that the prosecution failed to timely disclose this evidence, but denied Corrales’ request to exclude the evidence. Instead, the court directed jail personnel to cooperate with the defense in its further investigation of the incident. Ultimately, the parties stipulated to the admission of photographs of the graffiti along with a statement that the photographs were of the bunk assigned to Corrales while he was held in the Orange County jail.
Miranda v. Arizona (1966) 384 U.S. 436.
In addition, Corrales moved to exclude expert testimony on the subject of criminal street gangs. The court did not make a pretrial ruling on this motion. Instead, the court told the parties rulings on the admissibility of gang expert testimony would be made in response to specific trial objections. The court also stated, “And I just want to say ahead of time that each of your objections, if they are made, and each aspect of the gang expert’s testimony is something that I am thinking about as we go along . . . . And so while I’m not going to go through my [Evidence Code section] 352 weighing process out loud in front of the jury, I want the record to reflect and counsel to know that I’m doing that, and consider that in each of the rulings that I’m making.”
The Trial
Mancini testified as the arresting officer and as the prosecution’s gang expert. As the arresting officer, Mancini testified to the facts surrounding Corrales’ detention and arrest, the items he found during the search, and to Corrales’ admission that he was selling methamphetamine because he lost his job. Mancini also opined, based on his training and experience, that Corrales possessed the methamphetamine for sale.
With respect to his gang expertise, Mancini testified that he has attended numerous formal courses on the customs and practices of criminal street gangs, including classes taught during conferences sponsored by the California Gang Investigators Association, Orange County Gang Investigators Association, the Anti-Defamation League, and classes presented by gang experts from other law enforcement agencies. In addition, Mancini stated he had recently presented a three-hour gang awareness class to members of the Orange community and to Orange patrol officers. In addition, Mancini is a member of the California Gang Investigators Association and Orange County Gang Investigators Association, and he attends regular meetings of these organizations. Mancini is also a member of the Southern California Graffiti Task Force.
Mancini explained that he is one of eight officers in the Orange Police Department assigned to a specialized gang suppression unit. The unit is assigned to investigate all gang-related cases for the Orange Police Department. Mancini stated that as a member of the gang unit he has interviewed over a thousand gang members, their families, friends, and neighbors, and personally investigated over 200 gang-related crimes. In addition, Mancini participated in the execution of over 50 search warrants for evidence relating to gang activity, and that he has studied many items seized by warrant, including clothing, weapons, photographs, and correspondence.
Mancini’s testified to general information about criminal street gangs, including the initiation process, which he described as enduring a group beating or committing a violent act for the gang, and he also explain that gangs tend to be exclusive organizations. He described how gangs select certain colors and clothing styles to represent them, and that they use graffiti, hand signs, and tattoos to communicate gang allegiance. Mancini also testified to the important of respect in gang culture. He stated that individual gang members gain respect by committing crimes, and while violent crimes garner the most respect, an individual and the gang as a whole will also gain respect by committing non-violent crimes like illegal drug sales and vandalism. In addition, crimes that generate income, like illegal drug sales, help fund the gang’s other criminal activities.
Mancini testified that OCC is one of several Hispanic street gangs in the area. Hispanic street gangs tend to claim a particular area as their “turf” and then mark the boundaries of their turf with gang-related graffiti. Mancini stated OCC was formed in the mid-1990s after a power struggle split apart another Hispanic street gang. He also stated that OCC is the fastest growing Hispanic street gang in Orange.
Mancini described OCC as a typical Hispanic street gang. OCC members generally wear burgundy-colored clothing and sometimes refer to themselves as Los Burgundy Raggers, although he has also heard OCC referred to as Los Criminals, Adam Street, and Adam Street Killers. At the time of trial, OCC claimed approximately 10 square blocks of eastern Orange as its turf or territory, and this area encompasses the alley and apartment complex Corrales was arrested. Mancini testified that selling narcotics was one OCC’s primary activities, but he was also personally aware of OCC members committing other crimes like homicide, attempted homicide, assault with a deadly weapon, and car theft. In Mancini’s experience, criminal street gangs do not let non-gang members commit crimes on their turf.
Mancini stated that he had seen Corrales associating with OCC gang members on several occasions and he admitted to associating with the gang after his arrest. He had talked with other Orange police officers who had often seen Mancini with OCC gang members, and he knew of at least nine documented police contacts with Corrales. In addition, Corrales had received three STEP notices between February and May 2006. Mancini had also talked to other OCC gang members, who claimed Corrales was an OCC gang member, and he talked to Corrales’ girlfriend who said the same thing. Mancini knew Corrales’ girlfriend associated with OCC and that her brother was an active OCC gang member. Further, Mancini reviewed the June 27, 2006 report from the Orange County jail. The fact that the bunk assigned to Corrales had had the words “OC Criminals,” “Adams Street,” and “East Side Orange” scratched into its frame was further evidence of his active participation in OCC. Based on all of these factors, Mancini opined that Corrales was an active participant in the OCC criminal street gang.
The Street Terrorism Enforcement and Prevention Act (STEP) was enacted in 1988 to address the problem of criminal street gangs. (§ 186.21.)
Mancini admitted that Corrales did not have gang-related tattoos or a gang moniker. Mancini further admitted that Corrales was alone and not wearing gang colors on the night of his arrest, although Mancini testified his haircut and attire were consistent with gang membership. Although Corrales had frequently admitted to associating with OCC gang members, Mancini conceded he had not heard Corrales claim to be an OCC gang member and he has never seen Corrales throw the OCC gang hand sign.
Mancini also opined that Corrales committed the crime of possession of methamphetamine for sale with the intent to benefit OCC. In his expert opinion, Corrales committed a crime on OCC’s turf not only to get money, but also to bolster the gang’s reputation because the commission of even non-violent crime serves to intimidate any non-gang residents of the neighborhood and creates an atmosphere of fear and secrecy. Moreover, when members of OCC sell narcotics it gives the gang some money. He knew gangs use these proceeds for “other stuff like weapons, parties.” However, Mancini admitted that he had no direct evidence Corrales shared proceeds from the sales of methamphetamine with other OCC members.
Mancini testified to three crimes involving OCC gang members to establish OCC’s pattern of criminal gang activity. Mancini identified court documents from three crimes committing by three different people. Mancini testified that he knew OCC gang member Thomas Salgado Segura and his family members, and he had conducted probation and parole searches at Segura’s house. Segura, an admitted OCC gang member, had committed a robbery and been convicted for it in December 2003. Mancini had talked to Segura and was familiar with his case. Mancini testified Segura was an OCC gang member when he committed his crime. He also believed that Angel Sanchez, another admitted OCC gang member, was an active OCC gang member when he was convicted in August 2004 of unlawfully taking a vehicle without the owner’s consent. And, Mancini knew Mario Jose Zamora, also an admitted OCC gang member, who had been convicted of unlawful vehicle taking and for receiving stolen property in October 2003. Mancini stated he was familiar with the facts and circumstances of Zamora’s crime and Zamora’s background, STEP notices, and other police contacts. In his opinion, OCC is an active criminal street gang within the meaning of section 186.22, subdivision (b) and (e).
Corrales called a single witness on his behalf. Marcelino Figueroa testified that he saw Corrales in the alley on May 26, 2006. He said that Corrales offered to sell him some methamphetamine, but Figueroa refused. When Mancini and McMullin arrived, they searched both of them without consent. Figueroa, who is a long-time resident in the area, denied associating with OCC. However, he acknowledged that OCC graffiti covered the alley were Corrales was arrested.
II
DISCUSSION
Expert Testimony
Corrales claims the trial court abused its discretion by admitting Mancini’s expert testimony over his trial attorney’s repeated objections. He argues Mancini’s testimony is nothing more than speculation based on hearsay and should have been excluded because it relates to the ultimate issues in his case. We find these contentions meritless.
The prosecution may rely on expert testimony to establish the elements of the gang enhancement, the substantive crime of active participation in a criminal street gang (People v. Sengpadychith (2001) 26 Cal.4th 316, 322), and the requisite primary activities and predicate offenses (People v. Gardeley (1996) 14 Cal.4th 605, 617-620.) An expert may also testify about the existence, size, or composition of a gang, an individual’s membership in, or association with, a gang, the primary activities of a specific gang, the motivation for a particular crime, whether and how a crime was committed to benefit or promote a gang, rivalries between gangs, gang-related tattoos, and gang colors or attire. (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657 (Killebrew).) This is so because the culture, habits, and psychology of gangs are “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a); People v. Gardeley, supra, 14 Cal.4th at p. 617.)
Moreover, expert testimony may be premised on hearsay or material not introduced at trial, as long as the material is reliable and of a type that is reasonably relied upon by experts in the particular field in forming opinions. (People v. Gardeley, supra, 14 Cal.4th at p. 618.) For example, a gang expert may rely upon conversations with gang members, his or her personal investigations of gang-related crimes, and information obtained from colleagues and other law enforcement agencies. (Id. at p. 620; People v. Duran (2002) 97 Cal.App.4th 1448, 1463-1464.) An expert witness whose opinion is based on otherwise inadmissible evidence is permitted to explain how that evidence forms the basis of his or her opinion, but the trial court retains the discretion to restrict otherwise inadmissible testimony to ensure the defendant receives a fair trial. (Ibid.) Further, an expert may testify as to whether the defendant acted for the benefit of a gang, even though it is an ultimate factual issue for the jury to decide. (People v. Valdez (1997) 58 Cal.App.4th 494, 507-509.)
Corrales’ reliance on People v. Killebrew, supra, 103 Cal.App.4th 544, is misplaced. Killebrew involved a conspiracy to possess handguns among gang members in three different cars. There was conflicting evidence of the defendant’s whereabouts during the time police cars followed the three cars, although police officers arrested the defendant in the vicinity of one car after it was stopped. A gang expert properly testified about gang culture and psychology, but went too far by testifying that the occupants of one of the cars, the car in which no gun was found or otherwise linked, would know of and mutually possess the guns in the other two cars. (People v. Killebrew, supra, 103 Cal.App.4th pp. 652-658.)
The appellate court reversed the judgment, stating “this topic is not one for which expert testimony is necessary. Testimony that a gang would expect retaliation as a result of a shooting such as occurred [in this case], that gangs would travel in large groups if expecting trouble, that in a confrontation more than one gang member may share a gun in some identified circumstances, and that oftentimes gang members traveling together may know if one of their group is armed, would have been admissible. Beyond that, [the expert] simply informed the jury of his belief of the suspects’ knowledge and intent on the night in question, issues properly reserved to the trier of fact.” (People v. Killebrew, supra, 103 Cal.App.4th at pp. 658-659.)
Corrales points to a very few quotations from the record in support of his contentions, and even those few have been misquoted or taken out of context. In short, Corrales fails to demonstrate Mancini’s expert testimony went beyond what is permissible to address the impermissible topics of Corrales’ subjective knowledge and intent. Mancini’s training, background, and experience qualified him as an expert on Hispanic criminal street gangs in general and OCC in particular. Having served in Orange for four years, Mancini was familiar with OCC, its origins, membership, culture, turf, colors, graffiti, and hand signs. Some of his information came from other OCC members, area residents, and his fellow officers, but Corrales fails to identify any portion of Mancini’s testimony that was based on pure speculation. Instead, he attacks all of Mancini’s testimony, arguing in effect that all gang expert testimony should be excluded because it is based on incompetent hearsay and speculation.
Our review of Mancini’s testimony does not support Corrales’ broad attack on gang expert testimony. To the contrary, Mancini testified to specific events, providing the who, when, where and under what circumstances necessary to establish the existence of OCC as a criminal street gang, its culture, habits, and psychology, and the predicate crimes necessary to establish a pattern of criminal gang activity. In addition, he properly testified to the various facts and circumstances that lead him to believe Corrales is an active participant in OCC, and that Corrales intended to further the purposes of OCC by selling methamphetamine on OCC turf. Mancini’s testimony was based on facts developed through his observations, his investigation, his training, and his experience. Nothing more is required of an expert.
Other Evidentiary Rulings
In forming his expert opinion, Mancini considered the June 27, 2006 report from the Orange County jail. Corrales argues the court should have excluded any reference to this evidence because it was not timely produced by the prosecution. As stated above, the court concluded the report had not been “provided as timely as it could have been.” However, the parties ultimately stipulated that photographs of the graffiti could be introduced at trial along with the explanation Corrales had been assigned to that bunk. Corrales stipulation to the admission of this evidence bars his challenge on appeal. (People v. Ervin (2000) 22 Cal.4th 48, 73.) Regardless, any error was harmless. The admission of this particular piece of gang-related evidence did not result in a miscarriage of justice. (Evid. Code, § 353; People v. Earp (1999) 20 Cal.4th 826, 878.)
Corrales also claims the court erred by refusing to give CALCRIM No. 306, the standard instruction on late discovery disclosure. However, the opening brief omits any record reference for this assertion, and the court’s only reference to this particular jury instruction relates to a criminalist’s report dated July 13, 2006. Because the court did not have a sua sponte duty to give an instruction on late discovery, it was incumbent upon Corrales’ counsel to make a specific request. Nothing in the record establishes that counsel asked for this instruction because of the June 27, 2006 Orange County jail report. Consequently, we find no error. Of course, in light of the court’s earlier rulings, any request would have been futile and defense counsel is not required to make futile requests. (People v. McCutcheon (1986) 187 Cal.App.3d 552, 558-559.)
Corrales’ also contends the prosecutor committed misconduct by referring to the June 27, 2006 report during closing argument. The prosecutor stated, “While in custody for drug sales the defendant etched his gang affiliation into the jail bunk assigned to him.” Counsel objected on the grounds of misstatement of the evidence. The trial court promptly stated, “[L]adies and gentlemen, this is [the prosecutor’s] view of the evidence. You are going to be the ones to decide whether her assessment is an accurate one.” In view of the evidence and the prosecutor’s fleeting reference to evidence admitted at trial, the court’s admonition was sufficient to cure any harm from the prosecutor’s statement. Consequently, any error was harmless. (See People v. Earp (1999) 20 Cal.4th 826, 858.)
Trial Court Instruction on “Active Participation”
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 by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.”
Because Corrales was charged with a violation of section 186.22, subdivision (a), the trial court gave the pattern instruction for this offense, CALCRIM No. 1400. The court instructed the jury as follows: “The defendant is charged in Count 2 with participating in a criminal street gang. To prove that the defendant is guilty of this crime the People must prove that, one, the defendant actively participated in a criminal street gang; two, when the defendant participated in the gang, he knew that members of the gang engage in or have engaged in a pattern of criminal activity and, three, the defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang. [¶] Active participation means involvement with a criminal street gang in a way that is more than passive or in name only. The People do not have to prove that the defendant devoted all or a substantial portion of his time or efforts to the gang, or that he was an actual member of the gang.”
The court also defined “felonious criminal conduct” as “committing or attempting to commit the following crime: possession for sale of a controlled substance in violation of section 11378 of the Health and Safety Code as defined in instruction 2302,” and stated “[t]o decide whether the defendant committed the crime of possession with intent to sell methamphetamine as charged in count 1, please refer to that separate instruction given you on that crime, 2302. [¶] In order to prove the defendant is guilty of actively participating in a gang . . . the People must prove that the defendant possessed a separate intent that is different from his intent to possess methamphetamine for sale . . . [T]he defendant must have had the specific intent and objective to actively participate in a criminal street gang and willfully promote, further or assist the gang in its felonious conduct. [¶] In common usage promotes means to contribute to the progress or growth of. Further means to help the progress of, and assist means to give aid or support.”
Under the guise of alleging instructional error, Corrales contends the predicate “felonious criminal conduct” necessary for conviction under section 186.22, subdivision (a) must consist of conduct that aids and abets commission of a felony by other gang members. He argues anyone who directly perpetrates a felony offense — possession of methamphetamine for sales for example — does not commit street terrorism if the possession does not facilitate a distinct felony offense by another gang member. Consequently, he asserts, the court erred when it deleted portions of the pattern instruction that apply when the defendant is alleged to have aided and abetted the commission of a separate felony. We disagree.
In People v. Ngoun (2001) 88 Cal.App.4th 432, the appellate court observed that section 186.22, subdivision (a), “punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself.” (Id. at p. 436.) The court further noted that “the focus of the street terrorism statute [§ 186.22, subd. (a)] is upon the defendant’s objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense.” (Ibid.) While section 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang[]” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467-1468), there is no reason to require a separate perpetrator. “An active gang member who directly perpetrates a gang-related offense ‘contributes’ to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct.” (People v. Ngoun, supra, 88 Cal.App.4th at p. 436.)
The jury found Corrales possessed methamphetamine for sale and that he committed this crime to benefit OCC. Substantial evidence supports their verdict. According to Mancini, OCC would not tolerate the commission of crime by a non-gang member on its turf, and there was ample evidence Corrales was not simply an associate of other OCC gang member, but in fact an active participant in OCC. Therefore, the trial court properly omitted aider and abettor language from CALCRIM No. 1440 and replaced it with language relevant to Corrales’ direct perpetration of the offense. Contrary to Corrales’ argument, the prosecution is not required to prove Corrales aided and abetted another gang member in the commission of the charged crime to support a conviction for active participation in a criminal street gang.
Finally, Corrales argues, “if [Mancini’s] opinion regarding the threshold necessary to establish ‘active’ gang participation is set at such a low level that [sic] it effectively eliminates freedom of association . . . .” We disagree.
“Section 186.22 has been upheld against a variety of constitutional challenges, including claims based upon the First Amendment and the due process clause of the Fourteenth. [Citations.] As these cases have explained, the carefully crafted terms of the statute ensure that mere membership in a criminal street gang will not be punished and that groups or associations whose primary purpose is not the commission of crime will be excluded from coverage. [Citations.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 633-634.) As the Supreme Court has state, “[T]he STEP Act punishes conduct, not association.” (People v. Loeun (1997) 17 Cal.4th 1, 11; People v. Gardeley, supra, 14 Cal.4th at pp. 623-624.)
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J., ARONSON, J.