Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF139619B, Joseph A. Kalashian, Judge.
A. M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
This case arises out of the shooting of two police officers during a traffic stop. Defendant Jesse Barbosa was convicted of two counts of conspiracy to commit murder, two counts of attempted murder, two counts of aggravated mayhem, and one count of discharging a firearm from a vehicle at a person. On appeal, defendant contends, (1) the evidence was insufficient to support the special gang allegations attached to each count; (2) the evidence was insufficient to support his convictions for conspiracy to commit murder because there was no proof of an overt act apart from the attempted commission of the target offense; (3) the conspiracy instructions erroneously failed to require any overt act apart from the attempted commission of the target offense; (4) the abstract of judgment must be corrected to reflect the terms actually imposed in counts 1 and 2; and (5) the trial court’s imposition of consecutive terms violated Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 871] (Cunningham). Except to correct the abstract, we affirm.
Defendant’s brother, Jeffrey Barbosa, was jointly charged with the crimes and convicted in a separate jury trial. He has appealed from the judgment of conviction in case No. F051824.
PROCEDURAL SUMMARY
Following a jury trial in September 2006, defendant was convicted of conspiracy to commit murder (Pen. Code, § 182; counts 1-2), attempted murder (§§ 664, 187; counts 3-4), aggravated mayhem (§ 205; counts 5-6), and discharging a firearm from a motor vehicle (§ 12034, subd. (c); count 7). Each count included a special allegation that, among other things, the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(4)). The trial court sentenced defendant to prison for a total of 100 years to life. The sentence consisted of 25 years to life in count 1 with an additional 25 years to life for an enhancement under section 12022.53, subdivisions (d) and (e). In count 2, the court imposed a consecutive term of 25 years to life plus 25 years to life for the section 12022.53 enhancement. The court stayed the sentences in the remaining counts pursuant to section 654.
Further statutory references are to the Penal Code unless otherwise specified.
FACTS
On January 17, 2005, defendant and his brother Jeffrey drove to Tulare from their home in Earlimart. The admitted purpose of their trip was to break into cars to steal radios. Defendant drove the car and Jeffrey rode in the front passenger’s seat. Defendant brought his 20-gauge, sawed-off shotgun.
Around 3:00 a.m., two police officers on patrol together observed defendant’s car driving in a residential area. One of the officers, Tulare Police Corporal Trishun Jackson-Espinosa (Corporal Jackson), observed that the occupants of the car were dressed in dark clothing and looking straight ahead. She decided to initiate a traffic stop of defendant’s car when a license plate check revealed his registration had expired.
After she got out of the patrol car, Corporal Jackson noticed that defendant kept looking back at her in his side mirror. She told him to look forward and to put his hands up. Defendant responded by putting his hands up on the steering wheel. After Corporal Jackson told him to put his hands up, defendant realized the officer was female. He told Jeffrey, “If she comes close … shoot her.” Jeffrey asked defendant how the shotgun worked. Defendant told Jeffrey to push the safety forward that was on top of the gun. Defendant then leaned up close to the steering wheel to give Jeffrey a clear shot at the officer.
Corporal Jackson approached on the driver’s side of defendant’s car, while her partner, Officer Jeremy Jones, approached on the passenger’s side. Corporal Jackson briefly looked around defendant’s car with her flashlight. She noticed that defendant’s seat was pulled up close to the steering wheel in an uncomfortable-looking position.
Corporal Jackson asked defendant for his license, registration, and insurance. Defendant shook his head. Corporal Jackson was about to ask more questions, when she noticed Jeffrey’s hands start to drop into his lap. She ordered him to put them back up. He started to put his hands up but then dropped them again.
Corporal Jackson heard a shotgun blast and saw shotgun shell wadding in the air. She was hit in her shoulder, near the neck, and fell to the ground. She saw defendant get out of the car, look at her, and then begin to run. Defendant later recalled that Corporal Jackson asked him not to hurt her before he started running. After Corporal Jackson was shot, Officer Jones fired his pistol into defendant’s car. He then ran over to the driver’s side of the car to check on Corporal Jackson.
Defendant ran to catch up with Jeffrey. Defendant told Jeffrey he had been shot and to “get the other cop.” Jeffrey ran back five or six feet and fired the shotgun. Officer Jones was shot in the head as he was standing next to Corporal Jackson. Defendant and Jeffrey fled the area and were arrested several hours later after they were found hiding in bushes next to the highway.
The two police officers were both hospitalized and underwent multiple surgeries as a result of the shooting. Officer Jones lost one of his eyes and Corporal Jackson was unable to use her left arm because the nerves had not yet grown back together, though she had started to regain some feeling in her fingers. Officer Jones was off work for 10 months and had not returned to full duty. Corporal Jackson was told she was going to be medically retired from the police force in January 2007.
While in jail, defendant wrote two letters to Corporal Jackson indicating he was sorry for what he had done.
Defendant was interviewed by police detectives the morning of the shooting. After being advised of his rights, defendant agreed to talk about what happened. Defendant promptly told the detectives:
“Me and my brother we wanted to go get radios so we took off, we went over to Tulare, went down the wrong street, a cop followed us, pulled us over, I guess we got nervous, I told him to pull out a gun, he pulled it out. I pulled over, we were scared, we didn’t know what to do, I go, ‘If she comes close, you know, shoot her.’ She got close, he pulled the trigger, at the same time I got shot, I had my hands up on the steering wheel. I jumped out the door. I don’t know what, my brother was … I ran to the front of the car, he already jumps out of the passenger side, runs and leaves me behind. I called him back, me and him went together, then he goes back and shoots again, he runs towards me, we jump the fence.…”
Later in the interview, defendant provided more detailed information which has been incorporated above into the summary of the circumstances surrounding the shooting. When the detectives asked why he told Jeffrey to shoot the first officer, defendant claimed he was scared of being arrested “for stolen property,” even though he acknowledged they did not have any stolen radios in the car when they were stopped. Defendant also told detectives that, initially, he did not see that there was a second officer and that this was “why I got shot.” Defendant also claimed he told Jeffrey to shoot the second officer because he did not want to get shot again and he thought the officer was “coming around the corner.”
Defendant told the detectives he always kept the shotgun in his car. He also said he brought the shotgun that night for “[s]afety.” When asked what he was afraid of, defendant responded, “You know, we’re going into people’s cars they might say hey .…” Defendant confirmed that they were going to use the gun to defend themselves if people started shooting at them, but added that, even if that had happened, they would have “probably just run .…”
When asked if there was something wrong with his car that explained why the officer stopped him, defendant said that his left, rear brake light was out, he had not yet transferred the car’s registration to his name, and his registration was expired. The detectives then inquired about the current registration sticker on defendant’s car. Defendant admitted he took it off someone else’s car and placed it on his own because he “didn’t wanna get pulled over for 2004 tags.”
The detectives also inquired about defendant’s gang affiliation. Defendant responded that he was not a gang member but that he hung around with “a lot of ‘em.” When asked which particular set, defendant answered, “The Nortenos.” When asked if there was a particular group out of Earlimart, defendant replied, “There’s only one group.” Defendant explained, “It’s ETC, Earlimart, Tulare County .…” Defendant asserted he never joined or became a member of the gang because, “My sister talked me out of it.”
At the end of the interview, defendant said he felt bad when he saw Corporal Jackson lying on the ground and the look on her face when she said, “Don’t hurt me.” Defendant went on to say he felt “bad about everything.” The detectives asked defendant if he would ever shoot an officer or have his brother shoot an officer again. Defendant responded, “Right now, no.”
Gang evidence
Police searched defendant’s house after the shooting. In his bedroom, they found over 100 20-gauge shotgun shells. In Jeffrey’s bedroom, they found red clothing and a drawing that read “East Side Tulare.” Police also recovered a number of photographs which showed defendant, Jeffrey, and other individuals wearing clothing and making hand signs associated with the gang.
Defendant’s friend Janelle Martinez testified that she had known defendant for about seven years. She identified a digital camera seized during the search of defendant’s house as belonging to her. She confirmed that she took a number of photographs of defendant and Jeffrey, some of which showed them holding a shotgun that looked like the one involved in the shooting. One showed defendant holding the shotgun, while their friend Pauline stood behind him holding up a number 4. The photos were taken on January 9, 2005, which was the first time Martinez had seen the shotgun.
Martinez acknowledged there were people in Earlimart who called themselves Norteños and that she had considered herself one in the past. She admitted that she drove around in stolen cars a couple of times, which is something Norteños sometimes do. According to Martinez, defendant was not a gang member but merely a “wannabe.”
Tulare Police Detective Joe Aguilar testified as an expert on gangs. According to Detective Aguilar, there are between 4,000 and 5,000 members of the Norteño gang in Tulare County. The gang claims the color red, the letter “N,” and the number 14. Detective Aguilar was familiar with Norteños in the Earlimart area. There were approximately 30 members known to law enforcement. Detective Aguilar testified that the primary crimes they engaged in were: “Car theft, car burglaries. Just petty crime in general, vandalism. A lot of crimes of opportunity and some drive-bys.”
Detective Aguilar testified that a Norteño named Benigno Picasso committed a predicate offense in Lindsay. Picasso, along with several other Norteños, beat and stabbed a victim they believed to be a member of the rival Sureño gang. Picasso entered a plea in the case and admitted a gang allegation. The abstract of judgment was entered into evidence.
It was Detective Aguilar’s opinion that defendant was a member of the Norteño gang. Detective Aguilar testified that defendant met six of 11 criteria used to validate someone as a gang member: “He self-admitted in a custodial facility. He has regular association; he wears gang attire; he was arrested in company of the gang; he was in possession of gang material, and we have photos of [defendant] in photos with gang members and flashing guns.” Detective Aguilar determined defendant’s brother Jeffrey was also a member of the Norteño gang under similar criteria.
Detective Aguilar testified that when defendant was booked into jail, he had to fill out a classification questionnaire. One question asked if he associated with any street or prison gang. Defendant marked “yes,” and wrote “Norteno.” However, when the classification officer re-asked the question, the officer marked “no” on the form.
Detective Aguilar described a number of specific police reports linking defendant to Norteños or to gang activity. A February 2001 report reflected that defendant had committed an act of vandalism (graffiti) but the victim did not press charges after defendant’s father agreed to pay for it.
A January 2002 field card reported that defendant was observed wearing a red Pendleton in the company of known gang member Romero Beltorro.
A January 2003 report reflected that defendant and Jeffrey confronted an individual and took his car. The stereo was subsequently stolen and the car was dumped in a field. According to the report, defendant admitted taking the car and using a stick to break the windows. Defendant claimed the individual whose car they stole was yelling gang slurs at them, specifically, “sur pura sur,” which translates “South pure South.” Detective Aguilar testified it would be the worst kind of insult to a Norteño and would require retaliation. During the incident, defendant and Jeffrey were accompanied by their associate Manuel Chavez.
An August 2003 report reflected that defendant had tried to get into the Earlimart swap meet and was thrown out by the security guard for flashing gang signs.
Detective Aguilar interviewed another individual named Robert Lopez regarding an incident that occurred in the fall of 2004. Lopez was a member of the Norteño gang in Tipton, a small town above Earlimart. Lopez and several friends were at a park in Earlimart, when a car drove by them slowly and the people in the car started “mad-dogging” the people in Lopez’s group. The car left and then returned a little while later. Several people, including defendant, exited the vehicle with bats and sticks. Defendant’s group was calling Lopez’s group “scraps,” which is a derogatory term for Sureños. Lopez reported that the incident stopped once his group identified themselves as Norteños and showed their tattoos. Lopez said he recognized defendant from school and that defendant was holding a bat during the incident.
It was Detective Aguilar’s opinion that defendant and his brother were engaged in gang activity the night of the shooting before they encountered the police, explaining: “They were committing car burglaries, which is something that the gang does” and “were armed in case they met any resistance.” The detective found it significant that they were armed with a sawed-off shotgun. He explained: “[M]ost gang members tend to be poor shots. With a shotgun you don’t really have to be a good shot. You just aim it in the basic direction and fire.” The fact that a shotgun is “cut off” is helpful because “it causes the pattern to spread out further, so you don’t have – even if you’re close, it will still guarantee that you’ll cause quite a bit of damage.” A sawed-off shotgun is also easier to conceal.
When asked why a gang member would shoot a police officer, Detective Aguilar testified: “Several reasons. One, to get away with the crime. Two, to gather the notoriety for it, if he can get away with it. In the gang culture he would be considered a superhero, someone who demonstrated great bravery in the face of a great foe, you might say; also to increase the status within the gang because somebody who was known to have done that within the gang itself. He would be considered a big shot.”
Detective Aguilar further explained that in gang language, a “shot caller” is someone with leadership abilities; he basically directs someone else to commit a crime. The detective confirmed that being a shot caller is considered a more desirable position than being the “trigger puller.”
It was Detective Aguilar’s opinion that the shooting of the two police officers by defendant and his brother was an act done in furtherance of the Norteño street gang. He explained: “It would be consistent with everything that I’ve been told by gang members themselves, that to do an act like that would raise him within their gang, within their gang subculture and that status and fear, for if their gang is known to be able to do that, other gang members would be afraid of them because they basically would say, wow, these guys are really vicious, stay away from them.”
The defense
Defendant testified on his own behalf. Defendant’s testimony was similar to his statement to detectives. Defendant testified that on the night of the shooting, he and Jeffrey went to Tulare to look for a car radio to steal. Defendant explained that one of his friends had asked for a radio and Jeffrey knew how to get into cars. Their plan to steal stereos “wasn’t for gangs stuff.” Rather, defendant wanted to get some money so he could take his ex-girlfriend to a movie for Valentine’s Day.
Defendant had not planned to use the shotgun or to have his brother use the shotgun that night. He told Jeffrey to shoot Corporal Jackson because he “panicked.” He did not mean for her to get killed. Defendant described his mind as “racing, just off adrenaline.” He was scared and panicking because he was sure the officers had seen them “burglarizing at the end of the corner,” he forgot to bring his driver’s license, and he had a gun in the car.
Jeffrey told defendant to be calm. Defendant told Jeffrey “if she gets close, to shoot her.” According to defendant, Jeffrey had fired the gun before but asked defendant how the safety worked because he too was panicking. Defendant admitted he told Jeffrey what to do and that he also leaned forward so his brother could have a clean shot.
Defendant noticed the second officer after he jumped out of the car. He called his brother back to help him because he was shot. Jeffery was not listening, so defendant began to run towards him. Defendant told Jeffrey to shoot again because, “I was scared to get shot again. I mean, I didn’t know what was gonna go on. I ran towards my brother, because I was being shot at.”
Defendant testified that he was going to become a gang member a long time ago, but his sister, Josephine, who used to be involved in gangs, talked to him and changed his mind. Although he was not a gang member, he hung out with gang members in Earlimart. He explained that some of the people he grew up with decided to become gang members and he could not tell them he could no longer hang out with them.
With respect to Detective Aguilar’s testimony, defendant denied that he stole cars. Defendant testified that the “window-busting” incident the detective described was not “gang related.” Defendant also denied that he was involved in the confrontation in the park, noting that the report stated that he had tattoos and a red belt, although he had neither.
As to the photographs found in his house, defendant claimed they all came from one roll of photographs taken on the same day, and that the detectives only picked the photographs that appeared to be the most incriminating and other photographs would have shown him in a more innocent light. Defendant asserted that they “posed” for the photographs and were “just goofing around.” The red items he wore were borrowed from someone else and the gun he was holding was a BB gun not a real gun. On cross-examination, defendant acknowledged that he was throwing gang signs, but insisted he was just “messing around.”
Defendant testified he only shot the shotgun a few times out in the country and had never thought about what it would do if he shot a person with it. On cross-examination, defendant confirmed he took the shotgun for the purpose of defending himself should somebody come out and start shooting at them while they were stealing a radio. However, he was not willing to kill somebody over a radio.
Defendant admitted he broke into someone’s house and stole the shotgun, and that he also stole the shotgun shells. Defendant broke into the house with Manuel Chavez. Defendant acknowledged that Chavez was a gang member and that Chavez appeared in one of the photographs with Jeffrey where they were throwing “N” signs.
Defendant testified that he used a saw to cut down the handle of the shotgun. When asked why he did this, he responded, “No reason. I just cut it down to go shoot it out in the country.”
A friend and several family members also testified that defendant was not a gang member and that they were unaware of gang activity in Earlimart. Defendant was not a violent person and they did not know and were surprised to learn he had a gun.
DISCUSSION
I. Sufficient evidence to prove gang allegations
Defendant argues that insufficient evidence was presented at trial to prove the gang-enhancement allegations made by the prosecution pursuant to section 186.22, subdivision (b)(4). First, he argues that the evidence was insufficient to show that the offenses were gang related, and that evidence of his past criminality and association with Norteños was not enough. He also contends that there was no evidence that the crimes were done with the specific intent to promote, further or assist other criminal conduct by gang members. Finally, he asserts there was no evidence that Norteños consistently and repeatedly committed the requisite criminal activity to satisfy the primary activities element of a gang.
“When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
To prove the gang allegations, the prosecution was required to show that defendant committed the offenses “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)(4).) The prosecution was also required to prove “that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period. [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 617.) Evidence of past or current predicate acts may be utilized to prove the primary activity element of a gang, but that evidence alone might not be sufficient to prove the group’s primary activities. Expert testimony regarding the primary activities of the gang or evidence that the group’s members consistently and repeatedly have committed the requisite criminal activity may satisfy the primary activity element. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322-324 (Sengpadychith).)
First, defendant argues there was insufficient evidence to show that the current offenses were gang related. In particular, he argues that the offenses were not gang related merely because he had committed other crimes or been affiliated with a gang in the past. He places strong reliance on the facts that he and his brother did not advertise any gang involvement during the shooting (such as displaying gang attire or paraphernalia) and the shooting did not occur in gang territory. Defendant also relies heavily on his own denials of gang membership and assertions of a personal motive for traveling to Tulare to burglarize cars (i.e., to obtain money to take his girlfriend to the movies). Defendant further complains that factors Detective Aguilar identified as being consistent with gang crime (such as the use of a sawed-off shotgun and commission of car burglaries) could also characterize non-gang crimes and argues that the detective’s conclusions regarding the gang-related nature of the crimes was conjectural and speculative.
We disagree with defendant’s assessment of Detective Aguilar’s testimony. It is entirely proper for a qualified gang expert as Aguilar is here, when presented with hypothetical scenarios “properly rooted in the evidence presented at trial” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 (Ferraez); see also People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4), to testify how particular criminal conduct may enhance a gang’s reputation or how a gang may use proceeds from a crime to further other criminal activity. (Accord, People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3; People v. Ward (2005) 36 Cal.4th 186, 209.) Such matters are “‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’” (Ferraez, supra, 112 Cal.App.4th at pp. 930-931; e.g., People v. Gonzalez, supra, 38 Cal.4th at pp. 945-946.) The court in Ferraez addressed an argument similar to that made by defendant here, that the evidence in that case showed his intent was not gang related but instead “‘entirely personal: to quickly get $400 with which to buy a car.’” (Ferraez, supra, 112 Cal.App.4th at p. 930.) In rejecting that contention, the appellate court found testimony from a gang expert based upon hypothetical scenarios, combined with evidence that the defendant planned to sell the drugs in another gang’s territory and earlier admissions that he was a member of different gang on friendly terms with the other gang, was sufficient for the jury to reasonably infer the crime was gang related. (Id. at p. 931.) Likewise, in People v. Morales (2003) 112 Cal.App.4th 1176, the court of appeal held a jury could reasonably infer both the requisite “benefit/direction/association” element and the specific intent element of the gang statute by evidence that a crime was committed by a gang member acting with fellow gang members. (Id. at p. 1198.) Evidence that the defendant intended to commit robberies and intended to commit them in association with persons who he knew to be members of his gang allowed the court to conclude it was “fairly inferable” that he had such specific intent. (Ibid; see also People v. Martinez (2004) 116 Cal.App.4th 753, 756-757, 762 [court found no substantial evidence to support imposition of section 186.30 gang registration requirement on no contest plea of auto burglary where probation report did not identify the defendant’s accomplice in the crime as a gang member nor did the report provide any indication the burglary was directed by, associated with, or benefitted the defendant’s criminal street gang].)
Here, Detective Aguilar’s opinion was coupled with evidence that both defendant and his brother Jeffrey were Norteño gang members and jointly committed the crimes against the police officers. Defendant and Jeffrey both lived in the same house where indicia of gang membership was discovered, permitting the jury to infer they were well aware of each other’s active gang member status. Defendant admitted that he directed Jeffrey to shoot each of the police officers; and the evidence reflects that Jeffrey agreed to follow his brother’s directions, apparently without question, except to ask how to use the shotgun. Thus, contrary to defendant’s assertion, the jury’s true findings were based on more than just defendant’s past gang affiliation and criminal activity. Detective Aguilar explained how the type of crimes defendant and his brother committed and their features would serve to benefit a gang and enhance its reputation and that of its members. The manner in which the crimes were committed provides sufficient circumstantial evidence, apart from defendant’s mere gang membership, from which a reasonable jury could conclude that the shooting of the police officers was committed for the benefit of, at the direction of, or in association with the Norteño gang.
Defendant next contends the evidence was not sufficient to show that the crimes were done with the requisite specific intent to promote, further, or assist other criminal conduct by gang members apart from the crimes of which defendant was convicted. We disagree.
Defendant relies on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia) as support for his argument that the conduct must assist some other criminal conduct by gang members. The question of whether the specific intent to promote, further, or assist in any criminal conduct by gang members requires an intent beyond the charged crime was rejected in People v. Romero (2006) 140 Cal.App.4th 15:
“In Garcia, the Ninth Circuit found insufficient evidence of specific intent to promote, further, or assist in other criminal conduct by the defendant’s gang. We disagree with Garcia’s interpretation of the California statute, and decline to follow it. (See People v. Burnett (2003) 110 Cal.App.4th 868, 882 [federal authority is not binding in matters involving state law]; see also Oxborrow v. Eikenberry (9th Cir. 1989) 877 F.2d 1395, 1399 [state court interpretation of state statute binding on federal court unless interpretation is a subterfuge or untenable].) By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members,’ rather than other criminal conduct. (§ 186.22, subd. (b)(1), italics added.)” (People v. Romero, supra, 140 Cal.App.4th at p. 19; see also People v. Hill (2006) 142 Cal.App.4th 770, 774 [disagreeing with Garcia’s interpretation of section 186.22, subdivision (b)(1)].)
We join with the Romero and Hill courts in holding that Garcia misinterpreted California law.
As his final argument regarding the gang allegations, defendant contends the evidence was insufficient to establish the primary activities element of the definition of a criminal street gang because there was no evidence that Norteños consistently and repeatedly committed the requisite criminal activity.
Defendant relies on a leading case’s reference to “evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (Sengpadychith, supra, 26 Cal.4th at p. 324.) Contrary to his implication, however, this kind of evidence is not required. The quoted passage reads in full:
“Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley, supra, 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.] The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on ‘his personal investigations of hundreds of crimes committed by gang members,’ together with information from colleagues in his own police department and other law enforcement agencies. [Citation.]” (Sengpadychith, supra, 26 Cal.4th at p. 324, second italics added.)
The prosecution relied on similar expert testimony in this case – not just on specific examples of criminal activity by Norteños. Detective Aguilar testified that the crimes in which the Norteños in Earlimart primarily engaged included car thefts, car burglaries, vandalism, some drive-by shootings, crimes of opportunity, and petty crime in general; a number of which appear in the gang statute’s list of predicate offenses. (See § 186.22, subd. (e).) Detective Aguilar’s opinion drew from his 11 years of experience with the gang unit, during which time he had spoken to hundreds of Norteños and been involved in approximately 20 criminal investigations involving Norteño suspects of crimes ranging from vandalism to murder. Notwithstanding defendant’s assertions to the contrary, this testimony combined with predicate acts of known Norteño gang members, including evidence of the current crimes, is sufficient to support the primary activities requirement of the gang enhancement statute.
We conclude the evidence was amply sufficient to support the true findings on the special gang allegations under section 186.22, subdivision (b)(4) and reject defendant’s arguments to the contrary.
II. Conspiracy evidence and instructions
Defendant contends there was insufficient evidence to support his conviction of conspiracy in counts 1 and 2 because there was no proof of an overt act apart from the attempted commission of the target offense. Similarly, defendant contends the conspiracy instructions given to the jury were erroneous because they failed to require proof of an overt act apart from the commission of or the attempted commission of the target offense. Defendant acknowledges his evidentiary and instructional challenges to the conspiracy counts fail under People v. Jurado (2006) 38 Cal.4th 72, 122 (Jurado), which held: The “[c]ommission of the target offense in furtherance of the conspiracy satisfies the overt act requirement [Citation].” However, defendant contends Jurado was wrongly decided, arguing:
Count 1 alleged: “On or about the 17th day of January, 2005 … the crime of conspiracy to commit a crime … was committed by Jeffrey Barbosa and Jesse Barbosa, who did unlawfully conspire together … to commit the crime of murder … a felony; that pursuant to and for the purpose of carrying out the objects and purposes of the aforesaid conspiracy, the said defendants committed the following overt act an acts at and in the County of Tulare: [¶] Overt Act No. 1: Picked up shotgun [¶] Overt Act No. 2: Jesse Barbosa leaned forward in seat [¶] Overt Act No. 3: Shot Cpl. T. Jackson through window.” Likewise, Count 2 alleged the following overt acts in furtherance of the conspiracy: “Overt Act No. 1: Picked up shotgun [¶] Overt Act No. 2: Jesse Barbosa leaned forward in seat [¶] Overt Act No. 3: Shot Cpl. T. Jackson through window [¶] Overt Act No. 4: Ran back to shoot Officer J. Jones.” (Unnecessary capitalization omitted.)
“[T]his holding appears to be in conflict with a long tradition and many previous pronouncements of the high court. Prior decisions held that the overt act requirement requires more than an agreement plus the commission of the target offense. The purpose behind the overt act requirement is to provide the locus penitentiae, an opportunity to repent, reconsider, and abandon the agreement before taking steps to commit the target offense.… Appellant therefore raises this issue in order to seek reconsideration of this issue here and in the California Supreme Court.…”
Defendant must address these issues elsewhere. The holding of our Supreme Court is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III. Consecutive Sentencing
Defendant contends imposition of consecutive prison terms based on aggravating factors not found by the jury violated his federal constitutional rights to trial by jury and proof beyond a reasonable doubt under Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856, 871]. After Cunningham, however, the California Supreme Court held that the imposition of consecutive terms without jury findings on criteria affecting concurrent or consecutive sentences does not offend the federal constitution. (People v. Black (2007) 41 Cal.4th 799, 820-823 (Black II).) Defendant argues that Black II was wrongly decided. Again, we are bound to follow precedent of the California Supreme Court and therefore reject defendant’s consecutive sentence argument. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
IV. Error in abstract of judgment
Defendant contends, the People concede, and we agree that the abstract of judgment incorrectly reflects that defendant received terms of life without the possibility of parole in counts 1 and 2, and that the abstract must be changed to reflect that the trial court actually imposed terms of 25 years to life in counts 1 and 2.
DISPOSITION
We direct the trial court to correct the abstract of judgment to reflect that no terms of life without the possibility of parole were imposed and that defendant received terms
of 25 years to life in counts 1 and 2, and to forward the corrected abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., CORNELL, J.