Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA330566, Lauren Weis Birnstein, Judge.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
An information charged Reina G. Diaz with making a criminal threat (Pen. Code, § 422 ; Lorena Medrano, count 1) and misdemeanor vandalism (§ 594, subd. (d); Maria Alaya, count 2). As to both counts, the information alleged that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(B) & (d)). The jury convicted Diaz as charged and found true the gang enhancement allegations. The court suspended imposition of sentence and placed Diaz on five years’ formal probation on count 1, three years’ formal probation on count 2, imposed related fines and fees, and ordered her to serve 180 days in county jail and credited her with 180 days for time served.
All further unmarked statutory references are to this Code.
Section 186.22, subdivision (d) provides punishment for so-called “wobbler” offenses subject to a gang enhancement: “Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is 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 be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail.”
Diaz contends the court erred in permitting the gang expert to testify to facts underlying the predicate offenses, that certain elements of the gang enhancement were not supported by substantial evidence, and that the court erred in ordering her to pay $1,000 in attorney fees. We reverse the gang enhancement with respect to the conviction for making criminal threats. We also reverse the portion of the judgment directing Diaz to pay $1,000 in attorney fees and remand to the trial court for a hearing on that matter. We otherwise affirm.
BACKGROUND
Maria Ayala’s Testimony
Lorena Medrano was a friend of Maria Ayala’s who had lived with Ayala since Medrano separated from her husband. Neither of them spoke English. Diaz, Medrano and Medrano’s husband had been street vendors at Third Street and Kenmore Avenue (the street), an area where vendors sold small items from sidewalk spaces. Medrano was familiar with Diaz from the street vending business but Ayala knew Diaz only by sight. When Medrano separated from her husband she discontinued her business on the street. Since then Diaz and Medrano’s ex-husband had become “very good friend[s].” Approximately six to eight weeks before the incident in this case Medrano, with Ayala’s help, resumed her business.
On October 13, 2007, as Medrano and Ayala were setting up their wares on the sidewalk, Ayala got into an argument with another street vendor, Maria Araceli, who claimed that Ayala had taken her customary spot. Araceli tossed their wares into the street, Ayala pushed Araceli, and Araceli pushed Ayala back. Ultimately, Alaya moved the wares to a spot across the street.
At approximately 4:00 p.m., Diaz arrived and set up her wares at her usual spot on the corner, across and down the street from Alaya and Medrano. Sometime later Diaz walked by and said to Medrano in Spanish, “‘I’m going to make shit out of you, old bitch, with the cholos.’” Medrano responded in Spanish “‘I’m not afraid of you.’” Diaz passed by Medrano a few more times, insulted Medrano and spat at her feet.
When Ayala heard Diaz say “cholos” she understood the term to mean gang members. Medrano explained to Alaya that the phrase “I’m going to make shit out of you” meant “to kill” her. She had heard Diaz make the same threat to Medrano a week or two before. Concerned for Medrano’s safety, she told her “‘they’re going to hurt you.’”
Approximately two hours later Alaya saw six or eight boys, ranging in age from 14 to 16, cross Kenmore and walk directly toward her and Medrano. They surrounded Medrano. Alaya told Medrano to leave, warning that “‘[t]hey want to hurt you.’” Alaya thought they looked like “cholos.” They wore baggy clothing and hooded sweatshirts. When the boys surrounded Medrano she became frightened and was trembling and nervous. Alaya was also shaking and so frightened that she could not speak. The boys spoke to each other in English, which neither Alaya nor Medrano understood, as they gestured at Medrano. A bystander who spoke English told Alaya and Medrano that the “cholos” were planning to beat up Medrano. Alaya and Medrano became even more afraid that the boys were going to carry out Diaz’s earlier threat. Alaya started taking photos of the boys with her cell phone to keep as evidence if they harmed Medrano.
When the boys saw Ayala taking their photos, they covered their faces with their hooded sweatshirts, walked over to Diaz and spoke to her. Alaya followed and kept taking pictures. The boys asked Diaz why Ayala was taking their pictures. Diaz confronted Ayala, “‘[w]hy are you taking pictures, old bitch? I’m going to make shit out of you.’” Alaya told them “‘I already got you all.’” She started running away but the boys chased her. She heard Diaz say, “‘[b]reak her car windows. Break them, break them.’” The boys asked Diaz “‘[w]hich? Which?’” and Diaz directed them to Alaya’s car, behind which she was hiding. They ran up and kicked out both her passenger side windows.
Ayala testified that all of the photos she took turned out blurry.
Diaz and Alaya both testified at trial with the assistance of a Spanish language interpreter. It is unclear from the record whether these conversations were in the Spanish language.
Alaya paid $140.00 to replace her car windows.
The English-speaking bystander called police. Alaya and Medrano gathered up their belongings, returned some shoes to a nearby shop owner, and hid in a nearby market until police arrived.
Alaya knew Diaz’s son “Chuckie” to be an 18th Street gang member. “Chuckie” was not among the group of boys who had broken her car windows. She had, however, seen two or three of the boys in “Chuckie’s” company on other occasions.
After the preliminary hearing in this case, Medrano called Ayala, told Alaya that she was afraid, and asked Alaya to pick her up from the bus stop. Medrano said that there were several “cholos” in the area around the court and that she was afraid while testifying. Medrano did not come to court to testify because she was afraid “they could do something to her.”
Gang Expert Testimony
Los Angeles Police Officer Karla Godoy had been a police officer for six and a half years. She was born and raised in Los Angeles and was familiar with the gangs in the neighborhood where she grew up. She had frequent contact with gangs as a patrol officer and, during the past two years, she had been working in the Rampart gang enforcement detail specifically assigned to the 18th Street gang. She had personally interviewed more than 200 18th Street gang members.
Godoy testified that the 18th Street gang was started in the 1960s in the heart of the Rampart area near Pico and Union by a group of Central American immigrants who were not accepted by existing gangs. The 18th Street gang admitted persons of every race and had 20, 000 members worldwide, with over 3, 000 in the Rampart area. The 18th Street gang controlled the territory by walking through the neighborhood and showing its presence, and by tagging the boundaries of its neighborhood with 18th Street gang graffiti. The boundaries of the Shatto Park clique of the 18th Street gang were Normandie Avenue on the west, Vermont Boulevard on the east, Beverly Boulevard on the north and Wilshire Boulevard on the south. The 18th Street gang has no allies and any other gang was considered a rival. The gang had distinctive hand signs and signals, usually conveying “18” in some fashion, but had adopted no particular color or type of clothing, except that some members sometimes wore a sports jersey with the number “18.”
The area of Third and Kenmore is a stronghold of the Shatto Park clique of the 18th Street gang. It is very heavily traveled, and street vendors usually sell there Thursday through Sunday.
Illegal drug sales is one of the 18th Street gang’s principal activities. The gang’s other primary activities are murder, attempted murder, robbery, vandalism, witness intimidation, and extortion.
To prove the gang’s predicate offenses and primary activities, the prosecutor entered into evidence certified court records showing that 18th Street gang member Joel Leskin Moreno had been convicted of attempted murder and assault with a deadly weapon in April 2005. Godoy testified that she had learned from her former 18th Street gang unit partner, Officer Edgar Hernandez, that these crimes were related to the 18th Street gang. He informed her that the crime victim was someone Moreno believed was going to testify against another 18th Street gang member. Officer Hernandez had worked in the 18th Street gang unit for five years and had had several contacts with Moreno, a documented and self-admitted 18th Street gang member. He had personally arrested Moreno and later testified at his trial as an 18th Street gang expert.
The prosecutor also entered into evidence certified court documents showing that 18th Street gang member Juan Carlos Gutierrez was convicted of murder in April 2004. Officer Hernandez testified at Gutierrez’s trial as an 18th Street gang expert. He informed Godoy that the victim of the crime was a rival gang member killed in 18th Street gang territory.
Godoy was familiar with Diaz’s son “Chuckie” through her contacts with him. He was approximately 16 years old, a self-admitted member of the 18th Street gang, and had tattoos of a “1” and an “8” on his arms. Each time Godoy spoke with him, or had other contact with him, she filled out a field information card. Field information cards detail the nature of the contact and note the person’s physical description, attire, address, telephone number, gang affiliation, and moniker. The back of Godoy’s field information cards for “Chuckie” noted her contacts with him, including an arrest for violating a gang injunction. One listed Diaz as his mother. The two home addresses on the card that “Chuckie” provided were both located in Shatto Park 18th Street gang territory, a block or two from the intersection of Third and Kenmore. Graffiti on property surrounding one of the addresses included various monikers, including “Chuckie.” The other home address was known as an 18th Street gang hangout.
Godoy met Diaz when she was talking with gang members who had congregated outside Diaz’s home. Diaz came outside, confirmed that her son was “Chuckie” from 18th Street, and said that she was his mother. Godoy told Diaz that her son needed more supervision, that she should not permit him to associate with gangsters or frequent known gang hangouts. Diaz said that she could not control her son but did not act as if she was proud that he was in a gang. Godoy met Diaz a second time when she brought “Chuckie” home after his arrest for violating a gang injunction. On this occasion Diaz did not appear to be particularly concerned that he was a gang member. Godoy testified that she had no reason to believe Diaz herself was a gang member.
Based on a hypothetical question incorporating the prosecution’s version of the facts, Godoy opined that Diaz’s threat to Medrano promoted the 18th Street gang. She stated that the basis for her opinion was that “[t]he mere fact that the woman has a son that’s from 18th Street shows the connection she has within the gang. Not only does she know that her son’s from 18th Street, she also condones it by threatening another person, knowing that she’s in the heart of the 18th Street Shatto Park. This is a threat.” And the threat, she said, “promotes the gang by showing how willing the members of its gang, how willing they are to commit these crimes for even the family members of a gang member; not necessarily for the gang member, but a mother of an 18th Street gang member. It shows how they work as a unit, as a gang together.” Further, “[i]t shows they stand together. They’re better than everyone else. And no one’s going to take over their area or come into their area. And when they threaten someone, they actually do commit a crime. Not only is it just a threat, but they’ll actually go through with their threat.”
Godoy opined that the vandalism also promoted the gang. Kicking out Ayala’s car windows was “a blatant act of violence that they’re committing in pretty much daylight hours, and very heavily populated by people and traffic. They could care less that people are watching. In other words, it’s better for them to have a crowd where they can actually see them in action, they mean business and they’ll take care of business regardless if people are looking and if there are witnesses. It sends a clear message to not only the victim of the case, but also to the citizens that live within that community.” She said that the message was “don’t mess with 18th Street because you will be dealt with.”
Defense Witnesses’ Testimony
Lydia Alarcon
Lydia Alarcon was a street vendor at Third and Kenmore and usually sold house-cleaning items. On October 13, 2007, she arrived at approximately 8:00 a.m. Some time later she observed Ayala get into an argument with another street vendor, Maria Araceli, who claimed that Ayala was in her customary spot. Ayala tried to kick and hit Araceli but Alarcon intervened by placing her body between the two women. Araceli moved Ayala’s items to another spot on the sidewalk but did not throw them into the street.
At approximately 5:00 p.m. Diaz arrived and set up her spot. Sometime later, a group of male youths came and stood by a railing near a Chinese restaurant. Ayala began taking photographs of everyone in the area.
Maria Araceli
When Maria Araceli started as a vendor on the street approximately seven years ago, Diaz was already working there. On October 13, 2007, she arrived sometime between 7:00 and 8:00 a.m. and saw that Medrano and Ayala had placed their wares in her usual spot. She moved them out of her spot and onto the sidewalk. She did not throw them into the street. Ayala was upset and tried to slap her but Alarcon got between them and prevented Ayala from hurting her.
Late in the afternoon Ayala took pictures of some young men who were standing by a railing near a Chinese restaurant. They walked over to Diaz and asked her why Alaya was taking pictures of them. Diaz told Ayala to stop taking pictures. The boys followed Ayala to her car and broke her car windows.
Araceli understood the term “cholos” to mean gang members but did not know whether these young men were “cholos.” She was afraid of “cholos” because they had fights “right there” in the area where she sold her goods.
Diaz
Diaz had been a vendor at Third and Kenmore for approximately eight years. She sold there on Saturdays and Sundays, and during the week she cleaned homes and offices at Pepperdine University. “Chuckie, ” the eldest son of four, was 16 years old in October 2007. She was not proud that he was a member of the 18th Street gang.
On October 13, 2007, Diaz arrived at her space on the street at approximately 5:00 p.m. and left at approximately 8:00 p.m. She did not leave her space at any time between those hours, even to use the bathroom. She did not walk by Medrano and Ayala’s spot and did not threaten Medrano or spit at her feet. She was unfamiliar with the expression, “I’m going to make shit out of you” because it was not used in her native El Salvador.
She saw Alaya taking pictures of a group of young men standing near a railing. They came over to her and asked her why Alaya was taking pictures of them. She asked Ayala why she was taking pictures and told her to stop. The young men followed Alaya to her car and broke two of Alaya’s car windows. She did not talk to the young men or order them to break the windows. She did not know any of the young men, never permitted “Chuckie” to bring any of his friends home, did not know any of his friends, and never saw him “hanging out” on the street with other young men.
Diaz understood the word “cholo” to mean a gang member. The young men she saw that day were dressed in baggy clothing typical for their age, but she did not know whether they were gang members, although she knew that the 18th Street gang controlled the area of Third and Kenmore.
Diaz had no problems with Medrano. In August 2005 Medrano came to her house because she was hiding from her ex-husband and Diaz permitted her to spend the night. She denied that she was a very close friend of Medrano’s ex-husband.
DISCUSSION
Diaz challenges the gang enhancement findings on both the vandalism and threat convictions. We disagree with the first but agree with the second challenge.
Section 186.22 provides for increased punishment when a person “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....” (§ 186.22, subd. (b)(1).) The statute defines a “criminal street gang” in part as an ongoing organization having as one of its primary activities specified criminal acts whose members “engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) The statute defines “a pattern of criminal gang activity” in part as the commission of two or more specified offenses by gang members, including murder and attempted murder, committed on separate occasions or by two or more persons. (§ 186.22, subd. (e).)
Expert’s Testimony Based on Hearsay
To prove the “pattern of criminal gang activity” element of the gang enhancement, or the so-called predicate offenses, the prosecutor entered into evidence certified copies of Joel Leskin Moreno’s convictions for attempted murder and assault with a deadly weapon in April 2005. Godoy, the gang expert, testified that Moreno was a documented 18th Street gang member who had attempted to kill a person he believed was going to testify against another 18th Street gang member. The prosecutor also presented certified copies of Juan Carlos Gutierrez’s conviction for murder in April 2004. Godoy testified that Gutierrez was an 18th Street gang member and that the conviction was for killing a rival gang member in 18th Street gang territory.
Diaz concedes that the convictions themselves were properly proved through the certified court documents and were relevant to prove a “pattern of criminal gang activity.” (Evid. Code, § 452.5; People v. Duran (2002) 97 Cal.App.4th 1448, 1460 [“Evidence Code section 452.5, subdivision (b) creates a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction, but also that the offense reflected in the record occurred”].) She contends, however, that Godoy’s testimony regarding the facts of the convictions was inadmissible hearsay because Godoy merely repeated Hernandez’s statements. She also contends that the information was irrelevant to prove any element of the enhancement but was extremely prejudicial. We disagree.
Evidence Code section 452.5 provides: “(a) The official acts and records specified in subdivisions (c) and (d) of Section 452 include any computer-generated official court records, as specified by the Judicial Council which relate to criminal convictions, when the record is certified by a clerk of the superior court pursuant to Section 69844.5 of the Government Code at the time of computer entry.
Godoy’s testimony regarding the gang related facts of the predicate offenses was properly admitted hearsay to support her opinion on both the “pattern of criminal gang activity” and “primary activities” requirements of the gang enhancement.
An expert may rely on hearsay to form her opinions provided that it is the type of information that is reasonably relied upon by experts in the particular field. (Evid. Code, § 801, subd. (b); People v. Gardeley (1996) 14 Cal.4th 605, 618.) “So long as this threshold of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony.” (In re Fields (1990) 51 Cal.3d 1063, 1070 [expert witness can base an “opinion on reliable hearsay, including out-of-court declarations of other persons”].) In People v. Gardeley, supra, 14 Cal.4th at p. 620, for example, the court held that the gang expert’s testimony was proper, although based on hearsay, because he had based his opinion on discussions with the defendants and fellow members of the gang, his own investigations of hundreds of crimes committed by gang members “as well as information from his colleagues and various law enforcement agencies.” Further, so long as reliability is established, the expert may testify to the hearsay materials she relied on in forming her opinion. (Evid. Code, § 802 [a witness testifying in the form of an opinion may state the reasons for her opinion and the matter upon which it is based]; People v. Gardeley, supra, 14 Cal.4th at p. 618 [“an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion”].)
Godoy opined that the defendants convicted of the predicate offenses were 18th Street gang members based on information from Hernandez, including facts that showed the convictions were for the benefit of the 18th Street gang. Diaz does not claim that this information, although hearsay, was unreliable. Nor should she. Godoy’s former partner in the gang unit, Hernandez, had personally arrested Moreno, had testified as an 18th Street gang expert at both Moreno’s and Gutierrez’s trials, and was in the best position to have direct information regarding the defendants and the facts underlying those prosecutions. It was thus reasonable for Godoy to rely on Hernandez as a knowledgeable source of information.
We disagree with Diaz’s assertion that the facts of the predicate offenses were irrelevant to any issue in the case. To prove a “pattern of criminal gang activity” the prosecution must show that the perpetrators were gang members. The commission of a crime for the benefit of a gang has a tendency in reason to show that the perpetrators are gang members.
Diaz’s citation of People v. Gardeley, supra, 14 Cal.4th at p. 621 for the proposition that proof of a “pattern of criminal gang activity” does not require proof that the predicate offenses were committed “for the benefit of, at the direction of, or in association with” the gang does not assist her. The decision says nothing about excluding “gang benefit” evidence to show that the perpetrator of the predicate offense is a gang member. In any case, the underlying facts of the predicate offenses were both relevant and highly probative of another element of the gang enhancement, namely the “primary activities” of the 18th Street gang. (§ 186.22, subd. (f); Evid. Code, § 210; People v. Sengpadychith (2001) 26 Cal.4th 316, 323 [“primary activities” in the gang enhancement mean the commission of crimes which are the gang’s chief or principal occupations].) Godoy testified that “primary activities” of the 18th Street gang included murder and witness intimidation, two of the qualifying crimes in the gang statute. (See § 186.22, subd. (e)(3) [homicide] & (8) [witness intimidation].) Thus, evidence that 18th Street gang members committed those crimes had a tendency in reason to show that the 18th Street gang’s primary activities included those crimes. (Evid. Code, § 210.)
“Pattern of Criminal Gang Activity” and “Criminal Street Gang”
The sentence enhancement in section 186.22 requires proof of a “criminal street gang” whose members have engaged in a “pattern of criminal gang activity.” As noted, section 186.22 defines “a pattern of criminal gang activity” as the commission of two or more specified offenses by gang members, including murder and attempted murder, committed on separate occasions or by two or more persons, occurring after the effective date of the statute and occurring within three years of the prior offense. (§ 186.22, subd. (e).) Diaz concedes that the “pattern of criminal gang activity” element was partially proved through certified court records reflecting the 2005 attempted murder and 2004 murder convictions of Moreno and Gutierrez, respectively. She contends, however, the only evidence to show that they were 18th Street gang members, Godoy’s testimony based on her conversations with Hernandez, was not sufficient to support the required showing because the testimony was not based on her personal knowledge. She thus contends insufficient evidence supports the “criminal street gang” (§ 186.22, subd. (f)) and “pattern of criminal gang activity” (§ 186.22, subd. (e)) elements of the enhancement. Again, we disagree.
We review the jury’s true findings on the gang enhancements for substantial evidence, viewing the evidence in the light most favorable to the judgment, and drawing all inferences from the evidence which supports the findings. (In re Alexander L. (2007) 149 Cal.App.4th 605, 610.)
Godoy testified to her opinion that Moreno and Gutierrez were 18th Street gang members when they committed the predicate offenses. She based her opinion on discussions with Hernandez, her colleague and former partner in the 18th Street gang unit, who had personally been involved in the criminal investigation of Moreno’s case, and who had testified at both Moreno’s and Gutierrez’s trials as an 18th Street gang expert. Godoy testified that Hernandez informed her that Gutierrez was an 18th Street gang member and, according to Hernandez, they were both convicted of gang related crimes. She also stated that Moreno was a “documented” 18th Street gang member who had admitted his gang membership to Hernandez. She explained how officers document gang affiliation on field information cards for reference and use by other officers. Given Hernandez’s five years’ experience in the gang unit specifically assigned to the 18th Street gang, plus his direct involvement in these two cases as an 18th Street gang expert, he was a knowledgeable source upon whom an expert could reasonably rely. (People v. Duran, supra, 97 Cal.App.4th 1448, 1464 [a certified copy of a minute order, coupled with the expert’s testimony based on his field experience, discussions with the defendant and the information in the minute order was sufficient to prove the predicate offense].)
The decisions Diaz relies on are inapposite. In In re Leland D. (1990) 223 Cal.App.3d 251 the court held that the gang expert’s testimony was insufficient to show a pattern of criminal gang activity. The expert testified that the gang had been engaged in sales of rock cocaine, vehicle thefts, and assaults with deadly weapons. The expert, however, unlike this case, did not provide any specifics, or any information about “[e]xactly who, when, where and under what circumstances” the alleged crimes occurred. (Id. at p. 259.) The In re Leland D. court observed that certified court records of convictions were not necessary to prove the “pattern of criminal gang activity” element, but proof of this element of the enhancement, nevertheless, required something more than “nonspecific hearsay and arrest information.” (Ibid.)
Diaz’s citation of In re Nathaniel C. (1991) 228 Cal.App.3d 990 is also unpersuasive. In that case, the court held the “pattern of criminal gang activity” element was not satisfied because evidence of the commission of one of the crimes was based only on “what San Bruno police told [the gang expert] they believed about the shooting.” (Id. at p. 1003.) The In re Nathaniel C. court concluded that “[s]uch vague, secondhand testimony cannot constitute substantial evidence that the required predicate offense by a gang member occurred.” (Ibid.) Here, unlike In re Nathaniel C., the prosecution presented substantial evidence of the commission of both crimes through certified court records.
Diaz contends because the gang enhancements must be reversed for insufficient evidence this court must reduce the vandalism conviction to a misdemeanor. It appears, however, that the trial court had already declared the vandalism conviction in count 2 to be a misdemeanor.
“For The Benefit Of, At The Direction Of, Or In Association With A Criminal Street Gang” And “With The Specific Intent To Promote, Further, Or Assist In Any Criminal Conduct By Gang Members”
Section 186.22, subdivision (b)(1) provides that “[e]xcept as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, 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, ” receive additional punishment.
Diaz contends that insufficient evidence supports findings that the group of young men were affiliated with the 18th Street gang, and thus no evidence that she acted in association with a gang, or that she did anything with the intent to benefit a gang. We agree in part.
“Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate ‘“that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.”’” (In re Alexander L., supra, 149 Cal.App.4th at p. 610.) The standard on review is the same whether the evidence is direct or circumstantial. (People v. Miller (1990) 50 Cal.3d 954, 992.)
Substantial circumstantial evidence supported the jurors’ implied finding that the group of young men were 18th Street gang members or associates. Diaz threatened to have gang members “make shit out of” Medrano. Diaz is the mother of a self-admitted 18th Street gang member. She made the threat in an area described by Godoy as a stronghold of the 18th Street gang. A few hours later a group of boys who look like gang members, some of whom had been seen in “Chuckie’s” company, surround Medrano and intimidated her. According to Godoy, intimidation is an act typically associated with gang members. At Diaz’s direction, the group of young men kicked out Ayala’s car windows. Godoy testified that committing acts of vandalism was also typical behavior of 18th Street gang members. Thus, although no direct evidence showed that the boys were members or associates of the 18th Street gang, the pieces of circumstantial evidence, like a puzzle once assembled, strongly suggested that they were.
Concluding that there was substantial evidence from which the jury could reasonably infer that the group of young men were “cholos, ” or gang members, the next question is whether Diaz committed the criminal threat and vandalism “for the benefit of, at the direction of, or in association with any criminal street gang” and “with the specific intent to promote, further, or assist in any criminal conduct by gang members....”
We answer in the affirmative with respect to the vandalism conviction. Evidence that Diaz aided and abetted the crime supports the gang enhancement on the vandalism conviction. (See Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, 1080 [under the California Supreme Court’s interpretation of section 186.22, for the gang enhancement to apply “the defendant must commit the crime with the specific intent to aid or abet the criminal conduct of the gang”].) Diaz solicited the “cholos” to break Alaya’s car windows and they did her bidding by vandalizing Ayala’s car. By directing their actions Diaz was acting “in association with” the gang members and, by ordering them to break Ayala’s car windows, she acted “with the specific intent” to “assist in” “criminal conduct by gang members, ” namely vandalism.
The same cannot be said with respect to the conviction for making a criminal threat to Medrano. The offense of making the criminal threat was complete when Diaz told Medrano that she would have the “cholos” “make shit out of her.” That was approximately two hours before the “cholos” showed up. Although she invoked the “cholos” to intimidate Medrano and strengthen her threat, there was no evidence that she was, at that time, acting “for the benefit of, at the direction of, or in association with any criminal street gang.” She was not a member of the gang and no evidence suggested that she had called the gang or asked for their assistance before making the threat. (See, e.g., People v. Ramon (2009) 175 Cal.App.4th 843, 851.)
Reimbursement Order for Attorney Fees
At sentencing the court suspended imposition of sentence, granted Diaz 180 days’ credit for time served in county jail, and granted her five years’ formal probation on count 1 and three years’ formal probation on count 2. The court also ordered her to pay $1,000 in attorney fees. Diaz did not object. She now contends the order for attorney fees must be stricken, because it was imposed without notice and without a hearing on her ability to pay, and the matter should not be remanded for hearing because there is no likelihood that the court can make a finding that she has the ability to pay. We agree in part.
Section 987.8 subdivision (b) provides that “the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost [of court appointed counsel]. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.”
After a hearing to determine a defendant’s current ability to pay costs of legal representation “the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability.” (§ 987.8, subd. (e).)
The Attorney General contends, and we agree, that by failing to object to the lack of notice and hearing Diaz has forfeited these claims. (See People v. Whisenand (1995) 37 Cal.App.4th 1383, 1394 [claim of lack of notice and hearing before imposing an order for reimbursement of attorney fees was forfeited by failing to object]; see also People v. Klockman (1997) 59 Cal.App.4th 621, 628; People v. Phillips (1994) 25 Cal.App.4th 62, 70.) Diaz, however, also contends the record evidence affirmatively shows that she is unable to pay any amount in attorney fees. Her argument amounts to a challenge to the sufficiency of the evidence which is not forfeited by failing to object. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217 [a challenge to the sufficiency of the evidence “requires no predicate objection in the trial court”].)
The Attorney General agrees that no evidence was presented regarding the reasonableness of the fee amount. On the other hand, the record contains some evidence of Diaz’s financial situation. The probation report indicated that Diaz received a third grade education in El Salvador, received food stamps and welfare, had four children, the youngest two of whom were supported by her cohabitant. The evidence also showed that Diaz worked cleaning houses and offices at Pepperdine University. Further, when imposing the reimbursement order the court commented that it would not preclude Diaz from supplementing her income by selling at Third and Kenmore, commenting, “it’s your primary means of subsistence, meaning that that’s how you make your living and buy your food.”
We conclude that the order directing Diaz to reimburse $1,000 in attorney fees is not supported by substantial evidence, either as to the reasonableness of the amount or as to Diaz’s ability to pay. We are not, however, convinced that on remand the facts will not support Diaz’s ability to pay some amount. We therefore reverse the $1,000 order for reimbursement and remand to the trial court to conduct a hearing to determine the reasonable amount of attorney fees and if Diaz has the ability to pay any of those fees.
DISPOSITION
The gang enhancement imposed on count one for making criminal threats is reversed. The order directing Diaz to reimburse the county $1,000 in attorney fees is reversed and the cause is remanded to the trial court to conduct a hearing to determine the reasonableness of the amount of fees and Diaz’s ability to pay such fees in accordance with Penal Code section 987.8. In all other respects, the judgment is affirmed.
We concur: MALLANO, P. J., CHANEY, J.
“(b) An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record.”