Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J0600805
Siggins, J.
The juvenile court found true an allegation that J.M. murdered Jose Rivas, and also found true several enhancements, among them a criminal street gang enhancement challenged in this appeal. J.M. argues there was insufficient evidence to support the gang enhancement finding. We affirm.
I. The Crime and Trial
One evening in late 2007, a white car was parked at a gas pump at an ARCO station in Antioch while its passengers were in the station store. Surveillance cameras captured the face and distinctive sweatshirt of one man from the white car. Jose Rivas pulled up to another pump at the gas station. A man exited the store, and the white car left. Rivas entered the store, paid for gas, and was shot five times as he left, apparently by the man previously depicted on the surveillance video. The man fled the scene. Rivas died from his wounds.
J.M. was apprehended and charged with murder (Penal Code, § 187) and several enhancement penalties, including a gang enhancement pursuant to section 186.22, subdivision (b). The prosecution relied upon witness testimony and video surveillance to prove J.M. killed Rivas. The prosecution used expert testimony and other evidence to prove the murder was for the benefit of a criminal street gang. The juvenile court sustained the allegation of murder, and found the gang enhancement, as well as other enhancements, true. The court set J.M.’s maximum period of confinement at 50 years to life. He timely appealed.
All further statutory references are to the Penal Code unless otherwise noted
The other enhancements were personal use of a firearm (§ 12022.5, subd. (a)(1)), and intentionally discharging firearm causing great bodily injury or death (§ 12022.53, subds. (b), (c) & (d)). The court struck an enhancement for great bodily injury. (§ 12022.7, subd. (a).)
II. The Challenged Enhancement and Standard of Review
When the court makes a finding that a defendant has committed a crime for the benefit of a criminal street gang, the defendant’s sentence is enhanced and the gang member must register with law enforcement as a gang member upon release from custody. (§ 186.30, subds. (a) & (b)(2).) Here, J.M. argues that the prosecution did not present sufficient evidence to prove that the Norteños were a criminal street gang, or that his actions were intended to benefit that gang.
As both arguments concern sufficiency of the evidence, our task is to determine if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the gang enhancement charge true beyond a reasonable doubt. (People v. Hatch (2000) 22 Cal.4th 260, 272; People v. Johnson (1980) 26 Cal.3d 557, 576-577.) After reviewing the record, we determine only whether there was substantial evidence—evidence that is reasonable, credible, and of solid value—to support a conviction, and we do not substitute our opinion though it may differ from the juvenile court’s. (People v. Johnson, supra, 26 Cal.3d at pp. 577-78; People v. Barnes (1986) 42 Cal.3d 284, 303-304.)
A. There Was Sufficient Evidence of the Gang’s Primary Activities
One element of the gang enhancement required the prosecution to prove the murder was “committed for the benefit of, at the direction of, or in association with any criminal street gang....” (§ 186.22, subd. (b)(1).) A “criminal street gang” must have “as one of its primary activities the commission of one or more of [several enumerated] criminal acts....” (§ 186.22, subd. (f).) “Primary activities” is not statutorily defined but the California Supreme Court interpreted the phrase to mean that the commission of one or more of the enumerated crimes is one of the group’s “chief” or “principal” activities. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323, citing Webster’s 2d Internat. Dict. (1942) p. 1963 [defining “primary”].) Among the 30-plus enumerated crimes are: assault with a deadly weapon, assault likely to produce great bodily injury, unlawful homicide, and narcotics trafficking. (§ 186.22, subds. (e)(1), (3), & (4).)
To qualify as a “criminal street gang” under subdivision (f), the statute requires a showing, in addition to crimes begin primary activities, that: (1) the group shares a common name, symbol, or sign and, (2) that its members individually or collectively engage in or have engaged in a pattern of gang activity. The sufficiency of the evidence for these other two requirements is not challenged.
There are two ways to present evidence of a gang’s primary activities. One way is for the prosecution to provide proof that the gang’s members consistently and repeatedly have committed the enumerated crimes. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.) Alternatively, the prosecution can present sufficient evidence through expert testimony, provided it has proper foundation. (People v. Gardeley (1996) 14 Cal.4th 605, 620.) Thus, in cases where the expert did not verify where or how he or she obtained information about a gang’s primary activities or where the expert made only conclusory statements based on nonspecific hearsay, the evidence was held to be insufficient. (See In re Alexander L. (2007) 149 Cal.App.4th 605, 612-614; In re Leland D. (1990) 223 Cal.App.3d 251, 258-259.) These decisions are in accord with Evidence Code section 801, subdivision (b), which limits expert opinion testimony to opinions “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally know to the witness or made known to him at or before the hearing... of a type that reasonably may be relied upon....”
Here, the prosecution relied upon expert testimony to prove the principal activities of the Norteño gang. Accordingly, our task is to determine whether there was an adequate foundation for the prosecution’s expert witness, Officer Stenger, to testify that Norteños are primarily involved in assault and narcotics trafficking. (§ 186.22, subds. (e)(1) and (4).) Over his seven years as an Antioch police officer, Stenger has helped serve search warrants on gang members and attended conferences on gangs taught by enforcement agencies and gang investigators. He has read literature on gangs published by the Department of Justice and the San Francisco and Los Angeles Sheriff’s Departments, as well as other publications about gangs produced by California counties, the State of California, and the federal government. In addition to his formal training, Stenger has spoken with gang members and their families, including with several associates of J.M. As a result of his expertise, Stenger became Antioch’s gang investigator in 2008, a job that requires him to collect information on gangs and their members and informally train other police officers.
J.M. belongs to the East Bay Riders, a Norteño subset. Stenger can testify to the activities of the Norteños in general rather than the East Bay Riders. (See People v. Williams (2008) 167 Cal.App.4th 983, 987 [“Evidence of gang activity and culture need not necessarily be specific to a particular local street gang as opposed to the larger organization.”])
Stenger testified that Norteño members achieve rank and status in the gang by trafficking drugs and assaulting rivals. Because members are expected to bring money into the gang, they often traffic narcotics, and, Stenger said, in his experience gangs and drugs go hand in hand. Stenger explained that the ultimate goal of a gang member is to kill his rivals, and members are expected to assault or kill rivals on sight.
J.M. relies on In re Alexander L., supra, to argue that Stenger’s testimony was insufficient because it did not describe specific instances of Norteños committing enumerated crimes. But the court reversed the commitment in In re Alexander L. because the expert had no basis for his knowledge of the gang’s primary activities. He said nothing about where, when, or how he got the information, leaving doubt about its reliability. (In re Alexander L., supra, 149 Cal.App.4th at pp. 611-612.) Here, Stenger told the court exactly where he got his information. He attended government conferences, read professional literature, participated in gang investigations, and talked with gang members and their families. These sources are similar to those recognized as suitable by our Supreme Court in Gardeley, where the jury permissibly could infer that the primary activities of a gang were enumerated crimes based on expert testimony drawn from conversations with gang members, investigations of crimes, and information from colleagues and law enforcement agencies. (Gardeley, supra, 14 Cal.4th at p. 620.)
While we recognize Stenger’s testimony on the Norteños’ primary activities was not as extensive and detailed as it could have been, it was sufficient to meet the prosecution’s burden. The reputation and activities of the Norteños are neither obscure nor novel. Stenger’s explanation of the activities and expectations of gang members was reasonable, credible, and sufficient to allow the juvenile court to determine that Norteños are primarily involved in assaults and drug trafficking.
A quick search of published cases demonstrates the gang’s past: homicide, assault, narcotics trafficking, burglary, and witness intimidation appear repeatedly as their primary activities. (In re Ramon T. (1997) 57 Cal.App.4th 201, 207; People v. Salcido (2007) 149 Cal.App.4th 356, 361; People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 871; People v. Vigil (2011) 191 Cal.App.4th 1474, 1479; People v. Ortega (2006) 145 Cal.App.4th 1344, 1356.)
B. There Was Sufficient Evidence of J.M.’s Specific Intent
J.M.’s second challenge to the sufficiency of the evidence attacks the finding that he murdered Rivas “with the specific intent to promote, further, or assist in any criminal conduct by gang members....” (§ 186.22, subd. (b).) This challenge comprises two parts: first, he says that Stenger’s testimony about J.M’s specific intent should not have been admitted, and, second, that there was insufficient evidence for the juvenile court to find J.M. had the requisite intent. J.M. says reversal of the gang enhancement is warranted by either argument.
The prosecution asked Stenger, “[d]o you have an opinion as to whether the minor specifically intended to promote, further, or assist the Norteños by engaging in the conduct?” Over a defense objection, Stenger answered that he did. Stenger believed J.M. acted for his gang because he murdered Rivas with little provocation and J.M. got a tattoo after the killing that showed his allegiance to the gang.
People v. Gardeley established that expert testimony may be used to support a gang enhancement. Several appellate courts have overturned gang enhancement findings because they deemed expert opinion testimony on subjective intent to be inadmissible. (See People v. Killebrew (2002) 103 Cal.App.4th 644, 658; In re Frank S. (2006) 141 Cal.App.4th 1192, 1198-1199.) But these cases share a common trait: there was no other evidence from which the trier of fact could have concluded the defendant intended to assist a gang. (People v. Killebrew, supra, 103 Cal.App.4th at 658-659; In re Frank S., supra, 141 Cal.App.4th at 1199.) Without other evidence, the expert opinion may invade the province of the trier of fact. (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1182-83.)
This case is distinguishable from Killebrew and In re Frank S. Both decisions assessed the prejudicial effect expert testimony had on the trier of fact in the absence of any other evidence that the court could have relied on to find the defendants guilty. Here, Stenger’s opinion was based on evidence in the trial record. Moreover, his opinion was not the only evidence of J.M.’s subjective intent. “There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.” (People v. Wilson (1944) 25 Cal.2d 341, 349.) The prosecution asked Stenger’s opinion at the close of testimony, only after presenting other evidence from which the court could have found the requisite intent.
Stenger testified that the rivals of Norteños were Sureños, that blue was the color of the Sureños, and that a person could be killed for wearing the wrong colors or for being perceived as a rival gang member. Stenger also opined that the goal of gang members was to kill rivals. The night of the shooting, Rivas wore a blue baseball cap, a black hoodie, a blue t-shirt, and tennis shoes with blue trim.
J.M. admitted to juvenile hall staff that he was a Norteño for life, and was classified as a Norteño gang member. Evidence introduced at trial included pictures of J.M. and other Norteños flashing gang symbols, and writings in J.M.’s possession containing numerous references to the Norteños. These same writings talked about killing Sureños several times, and allowed for the inference that J.M. was a dedicated Norteño who wanted to kill a Sureño.
J.M. and his companions were driving a white sedan and two days after the murder police recovered a similar sedan that had been burned with accelerant. Stenger opined that gang members often used stolen vehicles to commit serious crimes because they could easily be abandoned and could not be traced back to the gang. J.M. and his associates were there when Rivas entered the gas station, they saw him wearing the color blue, and J.M. killed him. J.M. admitted involvement in the Norteño gang and there was evidence of the gang’s interest in killing Sureños. The juvenile court could reasonably conclude that J.M. killed Rivas to advance the Norteños’ interests from his apparent desire to kill a rival, the victim’s clothing, and the unprovoked nature of the killing.
DISPOSITION
We affirm.
We concur: Pollak, Acting P.J., Jenkins, J.