Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, Ct. No. INF054617 James S. Hawkins, Judge.
IRION, J.
Miguel Valdivia Najera was convicted of murder (§ 187, subd. (a)), robbery (§ 211) and being a felon in possession of a firearm (§ 12021, subd. (a)(1)) in connection with a gang-related killing. For the murder, Najera was sentenced to life in prison without the possibility of parole based on a gang-murder special circumstance finding (§ 190.2, subd. (a)(22)) and to a consecutive prison term of 25 years to life for personally and intentionally discharging a firearm causing death (§ 12022.53, subd. (d)). Additional firearm and gang enhancements (§§ 12022.5, subd. (a), 186.22, subd. (b)(1)) were imposed for the murder, but execution thereon was stayed pursuant to section 654. The trial court also imposed prison sentences for robbery and being a felon in possession of a firearm, but execution of these sentences was stayed pursuant to section 654.
Further undesignated statutory references are to the Penal Code.
Najera contends the murder conviction and the jury's true findings on the gang enhancement allegations (§ 186.22, subd. (b)(1)) and the gang-murder special circumstance allegations (§ 190.2, subd. (a)(22)) must be reversed because the evidence was insufficient to sustain the findings. He also contends that the trial court erred with respect to the murder conviction by imposing a gang enhancement under section 186.22, subdivision (b)(1)(C) instead of an alternate gang penalty under section 186.22, subdivision (b)(5).
We reject Najera's contentions regarding the sufficiency of the evidence but agree that with respect to the murder conviction, the trial court should have imposed the gang alternate penalty rather than the gang enhancement. We therefore modify the judgment and affirm it as modified.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Crimes
Najera admitted he is a member of Barrio Cathedral City (BCC), a criminal street gang that operates in Cathedral City and whose primary activities include robbery and burglary. Najera has gang tattoos on his arms and shoulders and a gang moniker (Noño). After serving a sentence for a felony conviction, Najera was released from prison and returned to Cathedral City.
One evening during the month following his release, Najera and David Castaneda, a BCC associate, were walking down a street in territory claimed by the BCC gang when they stopped to talk to Arnulfo Reyes. Najera complained to Reyes that Oscar Gonzalez was a "rat" who "talks too much." Najera said he was looking for Gonzalez so that he could kill him. Najera also said at least twice, "I'm going to kill someone right now." After making these threats, Najera displayed a semiautomatic handgun.
An associate of a criminal street gang is not a member of the gang. An associate is someone who socializes with the gang and may even commit crimes with gang members but who has not been officially admitted into the gang.
Soon thereafter, Najera saw Gonzalez's car pass by and ran to the car with the gun in his hand. When Najera got to the car, he discovered that Gonzalez was not in the car and said to the driver, Armando Navarro, "I almost killed you because I thought you were Oscar." Najera told Navarro he wanted to talk to Gonzalez and asked where he was, and Navarro responded that Gonzalez was staying nearby at the house of Fernando Martinez. Navarro agreed to give Najera and Castaneda a ride to Martinez's house.
When Najera, Castaneda and Navarro arrived at the Martinez property, which was located in the heart of the BCC gang's "turf, " they proceeded toward a shack where Gonzalez was staying. Adrian Cedeno emerged from the shack and asked Navarro who the others were, what they were doing there and why Navarro was bringing them to the house when he did not even live there. After a heated verbal exchange, Najera pulled out his gun, racked the slide, pointed it close to Cedeno's head and asked, "What are you going to do now?" Cedeno remained silent. Najera then slapped Cedeno in the face and demanded his money, watch and wallet, all of which Cedeno surrendered. Although Cedeno was silent and motionless, Najera fired a shot into Cedeno's head, killing him. Najera and Castaneda then ran off.
B. Najera's Arrest and Interrogation
A few days later, Najera was arrested and taken into police custody. When interrogated by police detectives, Najera initially denied involvement in the shooting of Cedeno. After being pressed by the detectives, Najera stated, "The f***ing piece doesn't have a safety." When one of the detectives suggested the shooting might have been an accident, Najera agreed. Najera explained that Cedeno "came out all crazy" from the shack and "was yelling" at him and Castaneda. According to Najera, he pulled out his gun merely to put Cedeno "in check, " but Cedeno bumped into the gun, which accidentally fired. Najera then asked the detectives, "Do you think it's going to fly with [the jury]?"
C. The Information
An information charged Najera with murder (§ 187, subd. (a)), robbery (§ 211) and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). With respect to the murder charge, the information alleged two special circumstances: (1) that Najera killed Cedeno during the commission of robbery (§ 190.2, subd. (a)(17)(A)), and (2) that Najera was an active participant in a criminal street gang when he killed Cedeno and committed the murder to further the activities of the gang (§ 190.2, subd. (a)(22)). With respect to the murder and robbery charges, the information alleged that in committing the murder, Najera personally used a firearm (§ 12022.5, subd (a)), personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)) and acted for the benefit of a criminal street gang (§ 186.22, subd. (b)).
The information also alleged that Najera had suffered four prior convictions. One of the four was for first degree burglary. (§§ 459, 460.) This prior conviction allegedly constituted both a strike prior (§§ 667, subds. (b)-(i), 1170.12) and a five-year prior (§ 667, subd. (a)(1)). The other three prior convictions were for possession of a controlled substance. (Health & Saf. Code, § 11377.) These convictions allegedly constituted prison priors. (§ 667.5, subd. (b).)
D. The Gang Expert Testimony at Trial
1. The People's Expert Witness
At trial, the People called Lawrence Sanfillippo, a police detective, to testify about the gang-related nature of Najera's robbery and murder of Cedeno. At the time of trial, Detective Sanfillippo had been an officer of the Cathedral City Police Department for 17 years, and for the three years prior to trial he was a detective with the department's Coachella Valley Gang Task Force.
After describing his training, duties as a gang task force member and experience with gangs in Cathedral City, Detective Sanfillippo testified generally about how gangs form and operate. According to Detective Sanfillippo, most gangs form in a geographical area they consider their turf. He explained that "everything about being a gang member revolves around what they believe they earn and get by respect, " often through fear and intimidation. Detective Sanfillippo stated that gang members commit violent crimes to earn "respect" for themselves and their gang by intimidating the residents of a community, with more respect being earned as the violence of the crime increases. He also testified that gangs retaliate against people who assist law enforcement in the investigation and prosecution of gang members, whom gangs disparage as "rats" or "snitches." According to Detective Sanfillippo, by spreading fear and intimidation throughout a neighborhood in this way, gangs secure their turf and make further criminal activities possible.
Detective Sanfillippo testified generally that gang members who perceive they are not being shown the respect to which they are entitled commonly react with violence. A rude or confrontational manner or even a dirty look can provoke a violent reaction from a gang member, especially if other gang members witness such "disrespect." According to Detective Sanfillippo, for a gang member to tolerate disrespect reflects badly not only on the gang member himself, but also on the entire gang. He explained: "If the gang... or a gang member is disrespected, then the gang must retaliate. There must be some form of payback for the gang to hold its status... because otherwise they will look like they are weak. They will look like punks."
Detective Sanfillippo also testified generally about the respect earned by gang members who carry guns: "When a gang member has a gun, when he is strapped, and he is carrying a gun, his fellow gang members look up to him, because it is a very bold thing to be walking around with a gun, because the person could be contacted by law enforcement and could be arrested. [¶] It is also known that when a person is strapped and carrying a gun, that he is willing to step up and protect the gang at any time if he needs to."
In response to hypothetical questions based on the facts of this case, Detective Sanfillippo also gave opinions that the murder was committed for the benefit of a gang and to further the gang's activities. He explained that if a gang member announces that he is going to commit a crime, he would lose respect and would be viewed by other gang members as disrespecting the gang if he did not follow through. Detective Sanfillippo also explained that if someone rudely confronted a gang member on gang turf in front of a gang associate and another person, the rude person would have to be "put in check, " possibly by being killed. Such retaliation would be necessary, according to Detective Sanfillippo, because without it "[w]ord would get out amongst... the neighborhood [and] fellow gang members that [the gang member] was punked or he didn't stand up for the gang or represent himself properly." Finally, Detective Sanfillippo opined that killing the rude person would benefit the gang and further its activities by instilling fear and intimidation throughout the neighborhood by letting residents know that "if [they] don't follow the gang rules, [they] will be dealt with."
2. Najera's Expert Witness
Najera also called a gang expert to testify on his behalf at trial, James Diego Vigil, a professor in the Department of Criminology, Law and Society, at the University of California, Irvine. Vigil opined that Najera was not an active member of the BCC gang when he shot Cedeno. When presented with a hypothetical situation largely based on the facts of this case, Vigil opined that the shooting was "spontaneous" and "impulsive" and not done to further the purposes of the gang.
E. The Verdicts
The jury found Najera guilty on all counts and fixed the degree of murder as first. It found true the gang-murder special circumstance allegations but deadlocked on the robbery-murder special circumstance allegations. The jury also found true the firearm enhancement and gang enhancement allegations.
In a subsequent phase of the trial, the jury found true all allegations concerning Najera's prior convictions.
In a separate penalty hearing, which was required by the jury's true finding on the gang-murder special circumstance allegations (see §§ 190.3, 190.4, subd. (a)), the jury fixed the penalty for the murder conviction as life without the possibility of parole.
F. The Sentence
For the conviction of murder with special circumstances, the trial court sentenced Najera to prison for life without the possibility of parole, based on the jury's penalty verdict. (§ 190.2, subd. (a)(22).) The court imposed a consecutive prison term of 25 years to life for personally and intentionally discharging a firearm causing death. (§ 12022.53, subd. (d).) The court also sentenced Najera to prison for consecutive terms of four years for the other firearm enhancement (§ 12022.5, subd. (a)) and 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)), but stayed execution of these enhancements pursuant to section 654.
For the convictions of robbery and being a felon in possession of a firearm, the trial court imposed and, pursuant to section 654, stayed execution of determinate base sentences and attached sentencing enhancements. We do not discuss the details of these sentences because they are not challenged on this appeal.
The court also imposed a consecutive prison sentence of eight years for Najera's prior convictions, which consisted of five years for the prior first degree burglary conviction (§ 667, subd. (a)(1)) and one year for each of the three prior convictions of possession of a controlled substance (§ 667.5, subd. (b)).
II
DISCUSSION
A. Sufficient Evidence Supports the Jury's True Findings on the Gang Enhancement Allegations and the Gang-Murder Special Circumstance Allegations
Najera challenges the sufficiency of the evidence to support the jury's true findings on the gang enhancement allegations (§ 186.22, subd. (b)(1)) and the gang-murder special circumstance allegations (§ 190.2, subd. (a)(22)). He contends that Detective Sanfillippo's expert opinion was the only evidence the People offered to prove the robbery and murder of Cedeno benefitted the BCC gang and furthered its activities, and that opinion, by itself, was insufficient to support the jury's findings. Najera also contends that Detective Sanfillippo's expert opinion was the only evidence the People offered to prove that robbery was one of the BCC gang's primary activities, and that opinion, by itself, was insufficient to support the jury's true findings. For reasons we shall explain, we reject these contentions.
1. Standard of Review
We review the sufficiency of the evidence to support enhancement allegations and murder special circumstance allegations under the same standard we apply to a conviction. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Mayfield (1997) 14 Cal.4th 668, 790-791.) We ask whether, after viewing the evidence in the light most favorable to the judgment, anyrational trier of fact could have found the allegations to be true beyond a reasonable doubt. (See Jackson v. Virginia (1979) 443 U.S. 307, 319; Mayfield, at p. 791.) "[W]e review 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.] We presume 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." (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).)
2. Evidence That the Murder Benefitted the Gang and Furthered Its Activities
To establish the gang enhancement allegations, the People had to prove that Najera murdered Cedeno "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).) To establish the gang-murder special circumstance allegations, the People had to prove that Najera "intentionally killed [Cedeno] while [Najera] was an active participant in a criminal street gang... and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) Because the language of section 190.2, subdivision (a)(22) "substantially parallels the language of section 186.22, subdivision (b)(1), " the same evidence may satisfy both statutory requirements. (People v. Carr (2010) 190 Cal.App.4th 475, 488.)
The People's theory was that Najera murdered Cedeno for the benefit of the BCC gang and with the specific intent to further its activities. The People's gang expert, Detective Sanfillippo, testified that Najera admitted he was a member of the BCC gang, and opined that the murder of Cedeno would benefit the gang and further its activities by "putting in check" area residents who show disrespect to a gang member on the gang's turf. According to Detective Sanfillippo, through this type of intimidation the BCC gang would instill fear into the community and strengthen its control over the area of Cathedral City where it operates.
a. Najera's Challenge to the Opinion of the People's Gang Expert
Najera argues that without additional evidence that the murder was gang related, Detective Sanfillippo's expert opinion, standing alone, was insufficient to support the jury's true findings on the gang enhancement allegations and the gang-murder special circumstance allegations. In support of this argument, Najera relies primarily on case law holding that "[a] gang expert's testimony alone is insufficient to find an offense gang related." (People v. Ochoa (2009) 179 Cal.App.4th 650, 657 (Ochoa); see also People v. Ramon (2009) 175 Cal.App.4th 843, 851 (Ramon) ["The People's expert simply informed the jury of how he felt the case should be resolved."]; In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 ["the expert simply informed the judge of her belief of the minor's intent with possession of the knife, an issue reserved to the trier of fact"]; People v. Ferraez (2003) 112 Cal.App.4th 925, 931 (Ferraez) ["Undoubtedly, the expert's testimony alone would not have been sufficient to find the drug offense was gang related."]; People v. Killebrew (2002) 103 Cal.App.4th 644, 647 (Killebrew) [reversing conviction of conspiracy to possess handgun based solely on gang expert's opinion as to defendant's subjective knowledge and intent].)
Najera also relies on People v. Albarran (2007) 149 Cal.App.4th 214. Albarran, however, did not consider a challenge to the sufficiency of the evidence to support gang enhancement allegations, because the trial court had granted the defendant's motion for a new trial on the allegations. (Id. at p. 217.) Albarran is therefore irrelevant to our analysis.
At the outset, we note that our Supreme Court's recent decision in Albillar, supra, 51 Cal.4th 47, casts doubt on the proposition that an expert's opinion is insufficient to support a finding that a crime was committed for the benefit of a gang or in furtherance of its activities unless other evidence directly supports the finding. According to Albillar, "[e]xpert opinion that particular criminal conduct benefitted a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of... a[] criminal street gang' within the meaning of section 186.22[, subdivision] (b)(1)." (Albillar, at p. 63; see also People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048 ["In order to prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs."].) "[I]nferences constitute a recognized class of indirect [i.e., circumstantial] evidence which is just as satisfactory evidence of the ultimate fact to be proved as is direct and positive evidence of that fact." (Morton v. Manhattan Lunch Co. (1940) 41 Cal.App.2d 70, 72; see also People v. Nelson (2011) 51 Cal.4th 198, 210 [circumstantial evidence sufficient to support jury finding]; People v. Ugalino (2009) 174 Cal.App.4th 1060, 1064 ["Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom."].) Indeed, the inferences provided by expert opinion are often necessary to prove that a crime is gang related because jurors may be unfamiliar with the culture and psychology of criminal street gangs. (See, e.g., People v. Ward (2005) 36 Cal.4th 186, 210 (Ward) [expert may testify as to gang member's "likely reaction to language or actions he perceived as gang challenges"]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1384 ["It is difficult to imagine a clearer need for expert application than that presented by a subculture in which this type of mindless retaliation promotes 'respect.' "].) Thus, the essential premise of Najera's challenge to the sufficiency of the evidence — that an expert's opinion is insufficient to prove a crime benefitted a gang or furthered its activities without other evidence on this ultimate issue — does not appear to be sound.
Even if Najera is correct that Detective Sanfillippo's expert opinion that Najera killed Cedeno to benefit the BCC gang or to further its activities, standing alone, was insufficient to support the jury's true findings on the gang enhancement allegations and the gang-murder special circumstance allegations, the record contains other evidence to support the jury's findings. The jury heard testimony that the BCC gang was active in the area where Najera robbed and murdered Cedeno, which it claimed as part of its turf, and that Najera was a member and Castaneda was an associate of the gang. The jury also heard testimony that Najera had a gun and was looking for Gonzalez, whom he described as a "rat, " so that he could kill him. Navarro testified that while Najera was on his way to kill Gonzalez, Najera was rudely confronted by Cedeno, whom Najera then "put in check" by robbing and killing him. There was also testimony and documentary evidence that robbery was one of the BCC gang's primary activities, as discussed in more detail later. (See part II.A.3., post.) In addition, apart from his testimony on the ultimate issues (i.e., whether Najera's crimes benefitted the BCC gang and were intended to further its activities), Detective Sanfillippo testified generally that: (1) gangs retaliate against "rats" in order to discourage community residents from cooperating with law enforcement; and (2) a gang member who is disrespected on gang turf in front of a gang associate would feel a need to put the disrespectful person "in check" by retaliating violently in order to enhance the gang member's own reputation and that of his gang. (See part I.D.1., ante.)
This evidence was legally sufficient for the jury to conclude that Najera robbed and murdered Cedeno for the benefit of or in association with the BCC gang (§ 186.22, subd. (b)(1)) and with the intent to further its activities (§ 190.2, subd. (a)(22)). Under existing case law, the fact that Najera, a BCC gang member, committed the crimes in the company of Castaneda, a BCC gang associate, supports an inference that the crimes were committed for the benefit of or in association with the gang and with the intent to further its activities. (See People v. Miranda (2011) 192 Cal.App.4th 398, 412-413 [commission of crime accompanied by gang members or associates supports inference defendant intended to benefit gang]; People v. Villalobos (2006) 145 Cal.App.4th 310, 322 [non-gang member's commission of crime in association with known gang member supports inference crime was gang related]; People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales) [commission of crime with fellow gang members supports inference crime was committed in association with gang].) That Najera murdered Cedeno on gang turf in front of witnesses after Cedeno interfered with Najera's plan to kill the "rat" Gonzalez also supports an inference the murder was committed for the BCC gang's benefit or in furtherance of its activities. Case law recognizes that "[a] community cowed by gang intimidation is less likely to report gang crimes and to assist in their prosecution. The gang benefit is plain." (People v. Margarejo (2008) 162 Cal.App.4th 102, 110, italics added; see also People v. Gardeley (1997) 14 Cal.4th 605, 619 (Gardeley) [expert testimony that violent assaults by gang members are done to frighten residents of area in which gang operates sufficient to support gang enhancement allegations]; Miranda, at pp. 412-413 [expert testimony that robbery and shooting by gang member were committed to instill fear in community sufficient to support gang enhancement allegations].)
Thus, the jury heard evidence, apart from Detective Sanfillippo's opinion on the ultimate issue, from which it could reasonably conclude that Najera murdered Cedeno to benefit the BCC gang and to further the gang's activities. When this other evidence is considered with Detective Sanfillippo's opinion on the ultimate issue, there is sufficient evidence from which the jury reasonably could find true the gang enhancement allegations and the gang-murder special circumstance allegations. (See Ferraez, supra, 112 Cal.App.4th at p. 931 [finding substantial evidence supported gang enhancement when expert opinion was coupled with other testimony from which jury reasonably could infer crime was gang related].)
None of the cases cited by Najera holding expert opinion testimony insufficient to sustain gang enhancement allegations compels reversal of the jury's findings in this case, even if we assume the cited cases are still good law after Albillar, supra, 51 Cal.4th 47. Unlike Ochoa, supra, 179 Cal.App.4th 650, 662, and In re Frank S., supra, 141 Cal.App.4th 1192, 1199, where there was no evidence the defendant committed crimes in gang territory or with other gang members or associates, here Najera committed the crimes in the heart of gang territory and in the company of a gang associate (Castaneda). Unlike Ramon, supra, 175 Cal.App.4th 843, 853, where there was no evidence the crime was one of the primary activities of the gang, here Najera committed one of the BCC gang's primary activities (robbery) in connection with the murder. Unlike In re Frank S., supra, 141 Cal.App.4th 1192, 1199, and Killebrew, supra, 103 Cal.App.4th 644, 652, where the gang expert impermissibly testified as to the defendant's subjective knowledge and intent, here Detective Sanfillippo did not give an opinion on Najera's specific knowledge or intent. Rather, he explained how the murder in the hypothetical situation posed by the prosecutor would benefit the gang and further its activities by instilling fear and intimidation into the residents of the neighborhood in which the gang operates. "Killebrew does not preclude the prosecution from eliciting expert testimony to provide the jury with information from which the jury may infer the motive for a crime or the perpetrator's intent...." (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.) The cases Najera relies on are therefore distinguishable and not on point, even if we assume they remain good law.
We disagree with Najera's related argument that the trial court erred in overruling his counsel's objection to Detective Sanfillippo's testimony about Najera's intent or motive in murdering Cedeno. Detective Sanfillippo did not testify as to Najera's state of mind. Rather, through responses to fact-specific hypothetical questions, he explained how the murder was gang-motivated. Our Supreme Court has held such expert testimony is permissible. (See Ward, supra, 36 Cal.4th at pp. 209-210.)
b. Najera's Other Arguments
We reject Najera's related contention that his robbery and murder of Cedeno were "personal" rather than gang related. To be sure, "[n]ot every crime committed by gang members is related to a gang..." (Albillar, supra, 51 Cal.4th at p. 60); and "it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang" (Morales, supra, 112 Cal.App.4th at p. 1198). Here, according to Najera, "the undisputed evidence shows that the robbery and murder were not planned in advance but rather were spontaneous responses to an unexpected situation." Najera's expert opined that the shooting "looks like a kind of spontaneous, impulsive, more individual oriented [incident] rather than something that is planned... and the idea of killing somebody for no reason is kind of like it doesn't really happen that often in gang members." (Italics added.) But this testimony is equivocal and far from undisputed. Detective Sanfillippo offered a very different interpretation of the shooting — that it was done to "put in check" a person who dared to show disrespect to a gang member on gang turf. (See part I.D.1., ante.) Thus, although there was evidence from which the jury could have concluded the murder was personal rather than gang related, it was not compelled to draw that conclusion. It was up to the jury to resolve this evidentiary dispute; we have no power to reweigh the evidence, make credibility determinations or substitute our conclusion for the jury's. (Albillar, at p. 60; Ferraez, supra, 112 Cal.App.4th at p. 931.)
Finally, Najera concedes, as he must, that our Supreme Court's recent decision in Albillar, supra, 51 Cal.4th 47, defeats his argument that to sustain the gang allegations the People had to prove, and the trial court had to instruct the jury, that in murdering Cedeno, Najera specifically intended "to promote, further, or assist" other gang-related criminal conduct by the BCC gang. (§ 186.22, subd. (b)(1).) According to Albillar, "the scienter requirement of section 186.22(b)(1)... is unambiguous and applies to any criminal conduct, without the further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Albillar, at p. 66.) We are bound by that holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In sum, we conclude that substantial evidence supports the jury's true findings on the gang enhancement allegations and the gang-murder special circumstance allegations. (§§ 186.22, subd. (b)(1), 190.2, subd. (a)(22); see Gardeley, supra, 14 Cal.4th at p. 619.)
Having concluded there was substantial evidence to support the jury's findings that Najera murdered Cedeno to benefit the BCC gang and to further its activities, we necessarily reject Najera's contention that the alleged insufficiency of that evidence "spilled over" and "tainted" the murder conviction. Evidence of Najera's gang affiliation and activity was properly admitted as relevant to his motive, intent, malice and premeditation as to the murder charge. (People v. Martinez (2003) 113 Cal.App.4th 400, 413; People v. Funes (1994) 23 Cal.App.4th 1506, 1518.)
3. Evidence of the Gang's Primary Activities
To prove the gang enhancement allegations and the gang murder special circumstance allegations, the People also had to prove that the BCC gang has "as one of its primary activities the commission of one or more [specified] criminal acts." (§ 186.22, subd. (f); see also § 190.2, subd. (a)(22) [incorporating § 186.22, subd. (f)].) Among the many specified crimes are robbery and burglary. (§ 186.22, subd. (e)(2) & (11).)
Here, Detective Sanfillippo testified that the BCC gang's primary activities included robbery and burglary. Najera contends this testimony was insufficient for three reasons, none of which is persuasive.
First, Najera contends that "[i]n light of th[e] evidence that the BCC gang (and gangs in general) were heavily involved in noncriminal activity, namely, socializing, the expert's testimony that the primary criminal activities of the BCC gang were robbery and burglary... did not constitute sufficient evidence as to the gang's primary activity." This argument proceeds from the false premise that in order for a crime to constitute a "primary activity" of a criminal street gang, the gang's members must spend more time committing the crime than doing anything else. That, of course, is not what the law requires.
According to our Supreme Court, "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." (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) "Also sufficient might be expert testimony..." (ibid.), such as testimony by a police officer with experience investigating gang-related crimes that gang members " 'often' " engaged in criminal activities listed in the gang statute (People v. Duran (2002) 97 Cal.App.4th 1448, 1465, italics added (Duran)). Here, the People introduced multiple past robbery convictions of BCC gang members as well as expert testimony from Detective Sanfillippo that one of the gang's primary activities is robbery. That evidence was sufficient to establish robbery as a primary activity of the gang.
Second, Najera contends that Detective Sanfillippo's opinion "had no evidentiary value" because "[h]e gave no reasons for his conclusion." But as the People correctly point out, there was no objection in the trial court on these grounds. Therefore, Najera's foundational argument is forfeited on appeal, and we may consider Detective Sanfillippo's testimony in assessing the sufficiency of the evidence. (See People v. Panah (2005) 35 Cal.4th 395, 476 [incompetent testimony received without objection should be considered upon question of sufficiency of evidence to support finding]; People v. Seaton (2001) 26 Cal.4th 598, 642-643 [failure to challenge foundation of expert testimony at trial forfeited challenge on appeal].)
Even if Najera had not forfeited this argument, there was a sufficient foundation for Detective Sanfillippo's opinion about the primary activities of the BCC gang. "The testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang's primary activities." (Duran, supra, 97 Cal.App.4th at p. 1465; accord, Gardeley, supra, 14 Cal.4th at p. 620.) Detective Sanfillippo testified that he based his opinions on the types of information approved in Gardeley and Duran. Thus, his testimony was admissible, and sufficient to prove that robbery and burglary were the BCC gang's primary activities.
Furthermore, there was testimony and documentary evidence that other BCC gang members had been convicted of robbery, which supported Detective Sanfillippo's opinion. "The robbery [Najera] committed with another gang [associate, Castaneda], is also evidence of the gang's primary activity and is consistent with [his] testimony." (People v. Martinez (2008) 158 Cal.App.4th 1324, 1330.)
Third, Najera contends that because Detective Sanfillippo testified that robbery and burglary were the primary activities of the BCC gang but the trial court instructed the jury only on robbery as a primary activity, "[t]he jury could not conclude from this [testimony] that robbery alone was a primary activity." (Italics added.) When asked, "[W]hat were BCC's primary criminal activities?" Detective Sanfillippo responded, "Primarily robbery and burglary." Although the response may be interpreted as Najera interprets it, that interpretation is not the only reasonable one. (Cf. People v. Wright (1955) 131 Cal.App.2d Supp. 853, 861-862 [phrase "steel frame and concrete buildings" may mean "a single type of building constructed by steel frame filled with concrete" or two types of buildings: steel frame buildings and concrete buildings].) In light of the other evidence of the BCC gang's primary activities, including the convictions of other gang members for robbery, we think the more plausible reading of Detective Sanfillippo's testimony is that robbery was one of the gang's primary activities and that burglary was another, not that robbery together with burglary was the gang's primary activity. (See Webster's 3d New Internat. Dict. (2002) p. 80, col. 2 ["and" may mean "along with or together with" or "either or both of two alternatives"].) We therefore reject Najera's semantic argument.
In sum, we conclude that the record contains sufficient evidence of the BCC gang's primary activities to support the gang enhancement allegations as well as the gang-murder special circumstance allegations. (§§ 186.22, subd. (b)(1), 190.2, subd. (a)(22); see Gardeley, supra, 14 Cal.4th at p. 620.)
B. The Trial Court Erred by Imposing a 10-Year Consecutive Prison Term Under Section 186.22, Subdivision (b)(1) for the Murder Conviction
The parties agree that the trial court erred when it imposed a consecutive 10-year prison term as a gang enhancement on the murder conviction. (See § 186.22, subd. (b)(1)(C).) Because the murder conviction carries a life sentence (§ 190.2, subd. (a)(22)), the trial court should have imposed the alternate gang penalty prescribing a minimum parole eligibility period of 15 years. (§ 186.22, subd. (b)(5); People v. Lopez (2005) 34 Cal.4th 1002, 1004.) In addition, Najera's prior serious felony conviction for first-degree burglary (see §§ 459, 460, 1192.7, subd. (c)(18)) requires that this minimum parole eligibility period be doubled to 30 years. (§§ 667, subds. (d)(1), (e)(1), 1170.12, subds. (b)(1), (c)(1); People v. Jefferson (1999) 21 Cal.4th 86, 101.) Because the jury fixed the penalty for the murder conviction as life without the possibility of parole, however, the doubled alternate gang penalty cannot also be executed and must be stayed. (See § 654, subd. (a) [when same crime may be punished in multiple ways, longest potential prison sentence must be imposed]; People v. Alford (2010) 180 Cal.App.4th 1463, 1469 [when § 654, subd. (a) applies, shorter sentences must be imposed and execution thereof stayed].)
DISPOSITION
The judgment is modified by striking the 10-year consecutive prison term imposed under section 186.22, subdivision (b)(1)(C) on the murder conviction (count 1); replacing it with an indeterminate life sentence with a 30-year minimum parole eligibility requirement under sections 186.22, subdivision (b)(5) and 667, subdivision (e)(1); and staying execution of this sentence. The trial court shall prepare a corrected abstract of judgment reflecting the stayed 30-year minimum parole eligibility requirement on the murder conviction (count 1) and forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
WE CONCUR: McCONNELL, P. J.O'ROURKE, J.
We also note that in arguing that Detective Sanfillippo improperly testified as to Najera's motive or intent, Najera relies on a depublished decision from this Division (People v. Vang (2010) 185 Cal.App.4th 309, review granted Sept. 15, 2010, S184212). Since review was granted, albeit after Najera filed his opening brief, Vang "must not be cited or relied on by a court or a party in any other action." (Cal. Rules of Court, rule 8.1115(a); see also id., rule 8.1105(e)(1) [opinion no longer considered published if Supreme Court grants review].) We therefore do not discuss Vang further.