Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. TA080714. William Chidsey, Jr., Judge.
George O. Benton, 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, Senior Assistant Attorney General, Michael R. Johnsen and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Bryan Cabrera was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a). The jury found true the allegations that a principal personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b) through (d) and (e)(1) and that the crime was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(a). The trial court sentenced appellant to 25 years to life in state prison for the murder conviction, plus a 25-year-to-life enhancement term for the section 12022.53, subdivision (d) firearm enhancement.
All further statutory references are to the Penal Code unless otherwise specified.
Other enhancement terms were imposed concurrently or stayed pursuant to section 654.
Appellant appeals from the judgment of conviction, contending that his trial counsel was ineffective in failing to object to the statement of a key witness as involuntary. He further contends that the trial court erred in instructing the jury on aiding and abetting and that there is insufficient evidence to support the true finding on the gang enhancement. We affirm the judgment of conviction.
Facts
The murder in this case took place in the 11600 block of Virginia Avenue in Lynwood. Appellant and his parents lived in this block, as did co-defendant Randy Madriles. Appellant and Madriles were members of the Young Crowd gang. Appellant's gang nickname was Crimes; Madriles's was Blaze. Several other Young Crowd gang members lived on this block as well, including "Bago." Patrice Arriola, the girlfriend of an imprisoned gang member, lived on this block with her mother Sharon Yeargain. Members of the Young Crowd gang liked to hang out at Patrice's house. The Zarates family lived across the street from Patrice's house.
Patrice was familiar with murder victim Enrique Garcia. On June 6, 2005, Patrice saw Enrique go to the Zarates's house. Sometime between 8:30 p.m. and 10:00 p.m., Enrique spoke with Patrice and her friend Tina on the porch. Madriles arrived on a bicycle and asked Enrique where he was from. Enrique answered: "I don't bang but I'm down for Lynwood." Madriles replied: "All right then," and said he was from "Lynwood Varrio Young Crowd." Madriles left.
Later, Enrique accompanied Patrice and Tina to Shirley Nunley's residence, which was also in the 11600 block of Virginia. Patrice and Tina were going to spend the night at Nunley's house. Patrice saw Madriles among a group of people milling about a dark purple Honda. The Honda was parked on the street next door to appellant's house. A young Hispanic woman, Adriana, was near the driver's seat. Patrice had previously seen Adriana driving the Honda. Patrice had seen Young Crowd members around the car before, and had seen appellant inside the car with Adriana. Patrice had never seen Madriles near the Honda before.
Shortly after 10:00 p.m., Enrique accompanied Patrice back to her house to get some clothes. They walked past the Honda on the way to Patrice's house and back to Nunley's house. The two dropped the clothes off, then returned to Patrice's house to get blankets. They again passed the Honda. Enrique went to the Zarates's house, then returned to help Patrice and her neighbor Vanessa carry blankets to Nunley's house. The trio passed the Honda again. During one of these trips, Bago was "mad-dogging" Enrique.
Enrique and Patrice talked outside for about 15 minutes. Enrique walked off in the direction of Patrice's house. Patrice went inside, and at some point went to sleep.
At some point between 11:00 and 11:30 p.m., Patrice's mother Sharon returned home. Enrique stopped by and visited, then left and walked across the street toward the Zarate residence.
Sharon fell asleep, but was awakened by some dogs barking. She went outside and saw a dark-colored Honda in the driveway next door. There were at least two people in the car. The passenger asked: "Where is your homeboy in the blue shirt?" Sharon replied that she did not know what he was talking about. The passenger repeated the question, and Sharon gave the same response. Someone in the car said: "There he is." They drove toward Shirley's house. Sharon walked back to her house. As she arrived at her front door, she heard gunshots. She saw the Honda turn onto Fernwood. She did not see any other moving vehicle. A few minutes later, a patrol car arrived and Sharon noticed a body on the street. Sharon approached the body and realized that it was Enrique.
Between 1:00 and 1:30 a.m., while on the way to the bathroom, Shirley also heard the gunshots. She went to the front window and saw a dark-colored car accelerate and drive fast past her house toward Fernwood.
Los Angeles County Sheriff's Deputy Ralph Cardenas responded to the 11600 block of Virginia about 1:30 a.m. He saw the body of a man lying face down in a pool of blood in the street. No one else was around. The deputy called paramedics. Sheriff's Deputy Martin Rodriguez arrived about 4:15 a.m. He recovered six .380 caliber casings from near and around the location of the body. Both deputies observed Young Crowd graffiti in various places on the street.
Deputy Cardenas spoke with Shirley, who realized that the vehicle she had seen earlier had traveled past the body's location. The deputy also spoke with Patrice, who identified the victim. Patrice told the deputy about Enrique's encounter with Madriles earlier. She also told him that other Young Crowd members confronted Enrique, announced their gang affiliation, and asked where Enrique was from. Enrique replied: "Nowhere, I'm just from Lynwood." Patrice stated that Enrique became involved in a verbal argument with the gang members but that they left without incident. She also stated that as she and Enrique walked past the group of gang members, they gave Enrique "dirty looks" and that she felt that the gang members were "stalking" her and Enrique.
Detective Rodriguez interviewed Patrice later. She told him that on June 4, appellant, Madriles, Bago and "Ghost" were standing in front of her house and that all but appellant had guns. She gave the detective an account of the events of June 6 which was very similar to the one she had given Deputy Cardenas. She added that some time after the shooting, Bago confronted her about talking to the police and she became fearful.
Detective Ty Labbe interviewed Sharon twice after the shooting. In the second interview, she stated that Madriles was the passenger in the dark-colored Honda that she saw just before the shooting.
Days after the shooting, Shirley was shown a photograph of a Honda belonging to Adriana Murillo. She stated that the car shown was similar to the one she saw at the time of the shooting.
On August 18, 2005, Adriana Murillo was arrested at her residence for Enrique's murder. She was interviewed by Detective Rodriguez and Deputy Labbe at the police station. Adriana acknowledged that she owned the purple Honda depicted in the photograph shown by police to Shirley. Ultimately, Adriana told Detective Rodriguez that she had been dating appellant and that she had spent time with him on the day of Enrique's murder, before the murder occurred. At some point that night, appellant called her and told her that he needed to leave the area because helicopters were overhead. He wanted Adriana to give him a ride. She refused.
A social worker from the Department of Children and Family Services arrived with or shortly after the arresting officers and took temporary custody of Adriana's son. Adriana testified positive for methamphetamine use that same day, and custody of her son was transferred to her parents. She entered drug rehabilitation and regained custody about five months later.
Six hours later, appellant called Adriana and told her that he and Madriles had stolen a black Honda and gone to a fellow gang member's house to get a gun. After that, appellant drove the car to Virginia Avenue, where they asked a lady, "Where is the guy with the checkered shirt?" They then found the victim and Madriles shot him. They drove away. Appellant told Adriana that he had no idea that Madriles was going to "get off on the victim."
Detective Rodriguez conducted further investigations based on Adriana's statements and determined that she was not involved in the shooting. She was released from custody and no charges were filed against her.
At trial, Adriana testified that she did not remember the events of June 6 or making any statements to Detective Rodriguez. She did remember that Detective Rodriguez threatened her during the interview and called her names.
Appellant and Madriles were arrested following Adriana's interview. Appellant told police that he was with Adriana prior to the time of the shooting. She drove him home. He was asleep in the living room of his home at the time of the shooting, and slept through the shooting and subsequent police investigation.
After Detective Rodriguez confronted appellant with Adriana's statement about appellant's telephone call, appellant admitted that he and Madriles were present at the location of the shooting at the time of the shooting. He denied that he shot the victim.
After interviewing appellant, Detective Rodriguez went to appellant's house. He interviewed appellant's sister Alejandra, and told her of appellant's confession. She said that appellant was not in the living room when she went there after hearing gunshots. At trial, she testified that appellant was in the living room and that Detective Rodriguez threatened her in order to get her to say that appellant was not home.
Detective Labbe interviewed Micaela Sanchez, appellant's mother. She told the detective that appellant was not home at the time of the shootings. At trial, she testified that appellant was home at the time of the shooting. She denied telling police otherwise. Detective Labbe confronted appellant's father, Jose Cabrera, with Sanchez's statement, and Cabrera admitted that appellant was not home at the time of the shooting. At trial, Cabrera testified that appellant was home at the time of the shooting. He denied telling police otherwise.
Shirley testified that Jose Cabrera told her at some point after the shooting, that appellant was not home on the night of the shooting. A few days later, after police had visited the Cabrera house, Cabrera came to Shirley's yard and told her that appellant was asleep on the couch the morning of the shooting.
Los Angeles County Sheriff's Deputy Robert Bayes testified as a gang expert at trial. He was a member of the Sheriff's gang enforcement team. He first came to know of the Young Crowd gang in 1995, when members of the gang killed a sheriff's deputy. Since that time, he had learned about the gang by speaking with gang members, investigating crimes in which Young Crowd gang members were suspects, executing search warrants at Young Crowd houses and reading police reports about crimes committed by Young Crowd gang members. Based on his knowledge and experience, Deputy Bayes opined that the primary activities of the Young Crowd gang were vehicle thefts, robberies, burglaries, narcotics sales, witness intimidation and murder. He also opined, in response to a hypothetical about a crime involving the facts of this case, that the crime was committed for the benefit of the Young Crowd gang.
Deputy Bayes also explained various aspects of gang life and gang culture, including the meaning of the question "Where are you from?" The deputy testified that both appellant and Madriles had previously admitted to him that they were a Young Crowd gang member.
Discussion
1. Ineffective assistance of counsel
Appellant contends that witness Adriana Murillo's statement was involuntary and unreliable, and so violated appellant's right to due process and that his trial counsel was ineffective in failing to object to the admission of this statement. We do not agree.
Appellant has filed a separate petition for writ of habeas corpus which also raised the issue of ineffective assistance of counsel. The primary purpose of this petition is to offer proof that appellant's trial counsel was asked if he had a tactical reason for failing to object, but trial counsel did not respond. We have filed an order denying this petition concurrently with this opinion.
Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citations.]" (People v. Thomas (1992) 2 Cal.4th 489, 530-531, internal quotes omitted.)
A defendant's due process rights are violated by the admission of a third-party witness's statement if the statement is coerced and its admission will deprive him of a fair trial. (People v. Badgett (1995) 10 Cal.4th 330, 344.) On appeal, an appellant must demonstrate that the statement admitted at trial was inherently unreliable at the time it was given; an involuntary statement is unreliable. (Id. at p. 347; People v. Lee (2002) 95 Cal.App.4th 772, 786-787.) This is so because "the primary purpose of excluding coerced testimony of third parties is to assure the reliability of the trial proceedings." (People v. Badgett, supra, 10 Cal.4th at p. 347.) The burden of proving involuntariness of a third party statement is on the defendant. (Ibid.)
"A statement is involuntary when among other circumstances, it was extracted by any sort of threats . . ., [or] obtained by any direct or implied promises, however slight. . . . Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the totality of [the] circumstances. Coercive police activity is a necessary predicate but does not itself compel a finding that a resulting confession is involuntary." (People v. Jablonski (2006) 37 Cal.4th 774, 813-814 [internal citations and quotations omitted].) "Additionally, 'such activity must be, as it were, the "proximate cause" of the statement in question, and not merely a cause in fact.' [Citations.]" (Id. at p. 814.)
Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile. (People v. Price (1991) 1 Cal.4th 324, 386-387.) Here, counsel could have determined that an objection or motion to exclude would have been futile. We would find such a determination reasonable, since we see no reasonable probability that the trial court would have accepted Murillo's account of the interview as true. Thus, we would also find that there is no reasonable probability that appellant would have received a more favorable outcome if his counsel had objected.
No tape recording of Detective Rodriguez's interview of Murillo was introduced at trial. Murillo's own testimony was the only evidence to support a claim of coercion. Rodriguez denied any coercion. Thus, any ruling on an objection to Murillo's statement would involve a credibility determination.
Murillo claimed that Detective Rodriguez told her that if she did not cooperate with police, she would spend the rest of her life in a cell. He called her a "ho" and a "piece of shit mom" and told her that he would "ruin [her] life" and make sure that she never saw her son again. Murillo also claimed that she had been using methamphetamine for three days before the interview.
Prior to trial, Murillo attempted to assert a Fifth Amendment right not to testify. The court held a hearing on this issue pursuant to Evidence Code section 402. Detective Rodriguez told the court that after interviewing Murillo and doing some follow-up investigation, police no longer believed that Murillo had anything to do with the murder. In ruling on the motion, the court specifically noted that it was making a credibility call, and found that Murillo did not want to testify and that she "believes that it's in her best interest not to testify, and is using the Fifth Amendment as a shield against that testimony." The court found that Murillo had no need to fear incriminating herself or being prosecuted, and had simply been in the wrong place at the wrong time on the day of the murder. Although the court did not expressly rule on Detective Rodriguez's credibility, the court's ruling shows that the court accepted the truthfulness of the detective's statements.
Murillo's testimony at trial did nothing to enhance her credibility. She claimed that she did not remember any of her statements to detectives about the murder, yet she had no trouble recalling the detective's supposed threats to her. Thus, we see no reason to believe that the trial court would have found a claim of coercion credible.
Murillo claimed not to remember the events of the night of the murder, and so took no position as to the truth or falsity of her statements to detectives.
If this issue were not waived by appellant's counsel's failure to object, and we were reviewing the voluntariness of Murillo's statement, we would apply an independent standard of review, in light of the record in its entirety. But we would accept the trial court's factual findings, based on its resolution of factual disputes, its choices among conflicting inferences, and its evaluations of witness credibility, provided that these findings are supported by substantial evidence. (People v. Jablonski, supra, 37 Cal.4th at p. 814.) We see substantial evidence to support the trial court's finding that Murillo was not a credible witness.
To the extent that appellant contends that Detective Rodriguez's testimony alone shows coercion, we do not agree.
Appellant first contends that Detective Rodriguez admitted that he did not have evidence linking Murillo to the crime, and deceived her when he told her that he did. He further contends that the detective's lack of evidence means that Murillo's arrest was illegal, and that this illegal arrest rendered her statement involuntary.
Detective Rodriguez testified at trial that, at the time of his interview with Murillo, he did not have evidence linking her to the murder. It appears that the detective was confused. During the interview, Detective Rodriguez told Murillo that he had information that she had been seen in close proximity to the crime scene sometime prior to the shooting, that a vehicle similar to hers was seen in the area of the shooting seconds before the shooting occurred and that she was known to have a relationship with appellant. At the pretrial hearing on Murillo's ability to invoke the Fifth Amendment, all the parties discussed the evidence which could have connected Murillo to the murder, including the similarity of her car to the one used in the shooting, her presence on the street before the murder and her relationship with appellant. Thus, Detective Rodriguez did have evidence linking Murillo to the murder, her arrest was not illegal, and he did not deceive her about the evidence.
Respondent suggests that Detective Rodriguez was answering this question with hindsight, having eliminated Murillo as a suspect after the interview. Certainly, Murillo's elimination as a suspect had become important during trial in light of Murillo's attempts to invoke the Fifth Amendment.
However, assuming for the sake of argument that the detective's statement to Murillo overstated the strength of the evidence against her and so was deceptive, deception about the evidence against a suspect does not render statement involuntary unless it "is of such a nature to produce an untrue statement." (People v. Watkins (1970) 6 Cal.App.3d 119, 124-125.) For example, falsely telling a witness that his fingerprints have been found does not require a finding of involuntariness. (Ibid.) We do not find any deception by Detective Rodriguez to be of such a nature as to produce an untrue statement.
Appellant next contends that Detective Rodriguez made both threats and promises to Murillo. We do not agree.
The detective told Murillo that she could go to prison for a long time for murder and that there was a possibility that she would never see her child again. He showed Murillo a photograph of her son to "show the gravity and the magnitude of this situation and what a life-altering situation this could be." He also told her that, "if she didn't have anything to do with [the murder], and told the truth, that that would be proved by corroborating evidence and she would not be a party to this charge, to the charge of murder."
The detective's statements about going to prison for a long time if convicted of murder and possibly never seeing her child are factual statements about the consequences of such a conviction. Appellant has not cited, and we are not aware of, any cases finding the recitation of the punishment for a crime to be a threat. Showing Murillo a photograph of her son was a reminder of what she could lose and an appeal to her emotions, but in context it was neither a threat nor a promise.
Detective Rodriguez's statement that Murillo would not be charged if she told the truth and did not have anything to do with the murder was no more than a permissible exhortation to tell the truth. (People v. Thompson (1990) 50 Cal.3d 134, 170; see People v. Boyer (2006) 38 Cal.4th 412, 445 [any promise which is conditioned entirely on the witness telling the truth is proper].)
Appellant further contends that Detective Rodriguez abused Murillo by calling her names. The detective acknowledged that he called Murillo a "tweaker," that is, a methamphetamine user, and "chastis[ed] her regarding the care . . . of her child." Appellant has not cited, and we are not aware of, any cases finding criticism of a suspect to be coercive. The record shows that Murillo was a methamphetamine user. This fact alone suggests that Murillo was not providing the best care to her child.
The detective, who was a narcotics expert, did not believe that Murillo was under the influence of methamphetamine when he questioned her, however.
Since we see no reasonable probability that an objection to Murillo's interview statements would have been successful, and ourselves would find those statements to be voluntary, appellant's claim of ineffective assistance of trial counsel fails.
2. Murder instructions
Appellant contends that the trial court made three errors in instructing the jury on murder. Respondent contends that appellant waived this claim by failing to object. (People v. Bolin (1998) 18 Cal.4th 297, 327.) We review the claim pursuant to Penal Code section 1259, and see no error.
Penal Code section 1259 permits review of an instruction given by the trial court even though it was not objected to, if the substantial rights of the defendant were affected thereby. "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim -- at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
First, appellant contends the trial court erred in instructing the jury on the doctrine of aiding and abetting. The trial court used Judicial Council of California Criminal Jury Instructions (2006), CALCRIM No. 401 to instruct the jury on this topic.
CALCRIM No. 401 provides in pertinent part: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime."
Appellant contends that the trial court never instructed the jury that the perpetrator had to have the specific intent to kill. Appellant is mistaken.
"[O]utside the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) Here, there was some evidence from which a jury could have concluded that appellant had a less culpable mental state than the perpetrator. There was no argument that appellant had a more culpable mental state than the perpetrator. Thus, it was appropriate under the facts of this case to instruct the jury that it was required to find that the mental state of the perpetrator was the same as appellant's.
CALCRIM No. 401 states that the People must prove that the perpetrator committed the crime. CALCRIM No. 225 told the jury that the People must prove "not only that a defendant did the acts charged but also that he acted with a particular intent or mental state. The instructions for charged crime explain the intent or mental state required." The jury here was instructed on the elements of the crime of murder, and the degrees of murder. These instructions stated that in order to find a defendant guilty of first degree murder, the jury must find that he intended to kill. Thus, when the instructions are viewed as a whole, the only reasonable understanding of them is that the jury was required to determine whether Madriles, the perpetrator, had the specific intent to kill. (People v. Davison (1995) 32 Cal.App.4th 206, 212 [instructions are viewed as a whole to determine whether there is a reasonable likelihood that the jury understood the instructions in a manner that violated the defendant's rights].)
In his reply brief, appellant also argues that the trial court did not instruct the jury that appellant was required to share the perpetrator's intent. We need not consider arguments made for the first time in a reply brief. We note, however, that "an aider and abettor will 'share' the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 560.) CALCRIM No. 401 told the jury that, "Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime."
Thus, "share" is a term of art which focuses on knowledge, and is designed to ensure that the aider and abettor has at least the same mental state as that required of the direct perpetrator. It is of course possible for an aider and abettor to be convicted of a greater crime than the actual perpetrator if the aider and abettor has the necessary mens rea for the greater crime. (People v. McCoy, supra, 25 Cal.4th at pp. 1121-1122.) There was no argument in this case that appellant had such a mental state, however.
Appellant's second, and related claim, is that the trial court erred in instructing the jury on the elements and degrees of murder because by using the generic term "the defendant," the court told the jury that appellant was the actual killer. We see no reasonable likelihood that the jury understood the instruction in this manner.
This was a two defendant case. There was no evidence or argument that appellant was the perpetrator. The evidence showed, and the People argued, that appellant was an aider and abettor of Madriles, who was the actual shooter. The aiding and abetting instruction told the jury that in order to prove that an aider and abettor was guilty of a crime, the People had to prove that the perpetrator committed the crime. Thus, viewed as a whole, the murder instructions could only reasonably be understood as referring to defendant Madriles. (People v. Davison, supra, 32 Cal.App.4th at p. 212 [instructions are to be viewed as a whole].)
Appellant's third claim is that the trial court erred in instructing the jury on an implied malice theory of murder because it did not apply to the facts of this case. He further contends he was prejudiced by this error because the jury might have believed that it could convict appellant of first degree murder even if the jury believed that Madriles only acted with implied malice. It is implicit in appellant's argument that there was no evidence that he himself had the intent to kill requisite for first degree murder. We see no possible prejudice to appellant, that is, no possibility that the jury convicted appellant of first degree murder absent evidence of appellant's own intent to kill, and based only on implied malice on Madriles's part.
Implied malice will only support a finding of second degree murder, and the jury in this case was so instructed. Thus, if the jury had believed that Madriles had only implied malice, and thus was guilty of second degree murder, and also (erroneously) believed that appellant shared that intent, it would have convicted appellant of second degree murder as well. The jury did not do so.
3. Sufficiency of the evidence – gang allegation
Appellant contends that there is insufficient evidence to support the jury's true finding that the murder was committed to benefit a criminal street gang within the meaning of section 186.22, because there is insufficient evidence to show that one of the Young Crowd gang's primary activities is specified criminal activities required by section 186.22, subdivision (f).
"[S]ubdivision (f) of section 186.22 defines the term 'criminal street gang' as 'any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more' criminal acts enumerated in subdivision (e) of the statute, and which has 'a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.'" (People v. Gardeley (1996) 14 Cal.4th 605, 616, footnote and italics omitted.)
Evidence of both "past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group's primary activities." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)
"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. (See § 186.22, subd. (e)(4) & (8).) 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. (Gardeley, supra, at p. 620.)" (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.)
Here, Deputy Bayes had extensive experience with gangs and had been working in the Lynwood area for 10 years. He had spoken with Lynwood Young Crowd gang members and investigated crimes committed by that gang, executed search warrants on the home of Young Crowd gang members and read police reports of other crimes committed by Young Crowd gang members. His knowledge of the Young Crowd gang dated back to 1995. Deputy Bayes gave details of six crimes committed by the Young Crowd gang beginning with a murder in 1995 through a robbery which resulted in a conviction in 2006. Deputy Bayes had conducted arrests in two of the cases. Based on his knowledge and experience, Deputy Bayes opined that the primary activities of the Young Crowd gang were vehicle thefts, robberies, burglaries, narcotics sales, witness intimidation and murder. This is very similar to the evidence offered in Gardeley, supra, and is sufficient to show that the primary activities of the Young Crowd were the criminal activities specified in section 186.22.
We do not agree with appellant that the fact that Deputy Bayes's opinion was inadequate or unsupported because he was not familiar with the Young Crowd's activities from the early 1970's to 1995 or with any statistics on the number of crimes committed by that gang in the 30 years of its existence. Appellant has not cited, and we are not aware of any requirement that a gang expert have such a detailed level of knowledge in order to opine about a gang's primary activities. To the extent that appellant contends that the opinion in In re Alexander L. (2007) 149 Cal.App.4th 605 requires such knowledge, he is mistaken.
The expert in Alexander L. stated only that he knew that gang members had "committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations." The Court of Appeal found that an adequate factual foundation was not presented for the expert's opinion because it was impossible to tell the source of his claimed knowledge of the gang activities. (Id. at p. 611.) That is not the case here.
Disposition
The judgment is affirmed.
I concur: KRIEGLER, J.
MOSK, J., Concurring
I concur.
I believe the issue of ineffective assistance of counsel in this case should be determined by way of habeas corpus.