Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA312167, Patricia M. Schnegg, Judge.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
A jury convicted defendant Jose A. Canul of witness dissuasion (§ 136.1, subd. (b)(2)), making criminal threats (§ 422), and assault with a firearm (§ 245, subd. (a)(2)) with findings that he committed each crime to benefit a street gang (§ 186.22, subd. (b)(1)(A)). The trial court imposed a 12-year sentence.
All statutory references are to the Penal Code.
In this appeal, defendant attacks the sufficiency of the evidence to support each conviction and to sustain the gang enhancement. In addition, he contends the trial court’s denial of his motion to bifurcate trial on the gang enhancement constitutes prejudicial error. We find no merit to any of defendant’s contentions and therefore affirm the judgment.
STATEMENT OF FACTS
1. Overview
The crimes are gang inspired. Defendant and his codefendant Antonio Fabela (Fabela) are members of the Vineland Boys gang. The crimes are based upon two confrontations they had with Jesus Quiroz (Quiroz) in which they threatened Quiroz in an effort to dissuade him from testifying that Omar Montano, a member of the Vineland Boys, had murdered Miguel De La Torre (De La Torre).
Defendant and Fabela were jointly charged but tried separately. The same judge presided over both trials. Fabela’s trial was conducted first but ended in a mistrial when the jury deadlocked. Fabela subsequently pled guilty to one count and was sentenced to a five-year term.
2. The Prosecution’s Case
a. The Crimes
The Vineland Boys operate in the neighborhood in which Quiroz lives. During the evening of March 15, 2006, Quiroz saw Montano, a member of the Vineland Boys, fatally shoot De La Torre in the head on Vineland Avenue. The Vineland Boys knew about Quiroz’s presence at the scene of the crime, because shortly before the shooting, several of its members had confronted him.
Detective Michael Oppelt interviewed Quiroz. Quiroz ultimately identified Montano as the shooter. In addition, Quiroz told the detective that he saw defendant standing over De La Torre’s body after the shooting. Detective Oppelt incorporated Quiroz’s statements into a police report, copies of which were furnished to the prosecutor and Montano’s defense counsel.
Six weeks later during the afternoon of April 30, Quiroz was walking down an alley to visit some friends when defendant and Fabela confronted him. Quiroz knew the two to be members of the Vineland Boys. Both men yelled “Vineland Boys.” They told Quiroz that they were proud to be members of the Vineland Boys; that they did not like “cops”; and that “they had a reputation of having killed policemen.”
Defendant ripped a chain off of Quiroz’s neck. Quiroz was frightened. Fabela told Quiroz “to thank God there wasn’t a gun there because he would have killed [him].” Both defendant and Fabela made hand motions as if they had a gun. Quiroz felt threatened because the two men appeared serious about shooting him. Defendant told Quiroz: “I’m going to crack your mouth.”
Quiroz testified that he felt threatened because “at that moment I didn’t feel that scared, but then I thought that maybe not they, but they could have other people do something. [¶]... I’m not afraid for me but for my family which is what, you know, what could happen later on. Nothing will happen now because they’re here but further on.”
During the confrontation, Fabela stated that “he had [De La Torre, the murder victim] inside his heart” “but that Vineland came first.” Quiroz understood that comment to mean that Fabela “didn’t care that [De La Torre] was killed” because “Vineland came before he did, that he wasn’t worth that much, that his Vineland and his barrio came first.”
Quiroz eventually walked away, understanding the two men’s statements to be threats. He proceeded to his friend’s home where he stayed for a half-hour. To return to his residence, Quiroz walked through the alley where defendant and Fabela had previously confronted him. The two men were still there. Defendant retrieved a gun from a trash can and gave it to Fabela. Quiroz testified that he did not know if it was a rifle or a shotgun but he described it as “big, it had wood here, and it was round like to here. On the rear on the back, it was wood, and he [Fabela] held it like this (indicating).” In response, the prosecutor asked: “You have your left hand extended fully forward as if holding a long barrel underneath on the under side and right hand up at about your chin level in front of your chest. Is that an adequate description?” Quiroz replied: “Yes.”
The day after the confrontations, Quiroz made a drawing of the firearm for Detective Oppelt. The drawing was admitted into evidence at trial.
Fabela pointed the weapon directly at Quiroz. Quiroz felt “threatened” because he understood “that one day they [defendant and Fabela] could kill me because they also said that even if they were in jail anyway, they were going to be out and they were going to kill me.” Fabela yelled “Vineland Boys” and defendant yelled “Vineland Mafia” as Fabela continued to point the weapon at Quiroz. Quiroz walked away. He saw Fabela return the weapon to defendant. A van arrived and defendant and Fabela entered the vehicle and left.
Before that day, Quiroz had had no difficulties with either defendant or Fabela. He thought that the confrontation resulted from defendant’s and Fabela’s membership in the Vineland Boys and the fact that he “[Quiroz] was talking to [his] friends mainly because of [De La Torre’s] death.”
After Quiroz arrived home, he called Detective Oppelt. He told him that he was frightened and felt threatened as a result of the confrontation. The detective advised Quiroz to immediately find temporary living accommodations. Quiroz and his family relocated.
At trial, Quiroz testified that he had moved because he was fearful for himself and his family after the confrontations in the alley with defendant and Fabela. In addition, he was frightened to be in court “[b]ecause when all this is over, I think something is going to happen because it’s logical that not everyone is happy.”
Several days after the confrontations, the police arrested defendant and Fabela. Detective Oppelt told Fabela “that if there was any likelihood that there was still a gun on the street that a child could come up [with] that would be blood on my hands and his.” Fabela agreed to accompany Detectives Oppelt and Aldaz to the alley where the confrontations had occurred. Fabela pointed out a specific trash can where he believed the gun would be found. Detective Oppelt searched the trash can but did not find a firearm.
b. Gang Evidence
Los Angeles Police Officer Michael Lopez has been a police officer for over 11 years, working on gang enforcement his entire career. He received formal training about gangs at the police academy, attended seminars about gangs, met with gang officers from both LAPD and other law enforcement agencies, and participated in operations targeting gangs. He testified as a gang expert more than ten times. For the previous four and a half years, his primary assignment was the Vineland Boys. During that time, he had frequent contact with members of the Vineland Boys, often gaining information from them.
In Officer Lopez’s expert opinion, defendant and Fabela were members of the Vineland Boys in April 2006 based upon the following facts. Officer Lopez, who had “taken many writing samples from [defendant], ” had seen both men’s street monikers (defendant was “Yuka” and Fabela was “Moreno”) written on a wall along with the street monikers of other men indicating that they were members of the Criminals clique of the Vineland Boys. According to Officer Lopez, “[g]raffiti is an important part of gang intelligence” because he has “never come across a gang member to write someone else’s name and not their own.” A gang puts its name on a wall to “say[], in essence, this area belongs to them.” In addition, Officer Lopez based his opinion that defendant was a member of the Vineland Boys on the fact that defendant had told Detective Oppelt that “he and Manny [a friend of defendant whose street moniker was on the wall along with defendant’s and Fabela’s monikers] were starting a clique in Vineland, the Criminals clique. He also stated if he was hit up, meaning if somebody asked him where he was from, that he would respond by saying he was from the Criminals clique.”
Officer Lopez testified that the primary activities of the Vineland Boys included witness intimidation, murder, robbery, narcotics sales, and assault with a dangerous weapon. Gang members learn the names of individuals who are cooperating with the police by reviewing police reports and court transcripts and “[b]y word on the street.” The alley in which defendant and Fabela accosted Quiroz is “a known [Vineland Boys] hangout.” Gang members do not carry weapons on their person because “they don’t want to have a gun on them in the event the police come by and stop them for some reason.” Instead, gang members hide their weapons “anyplace close by where they have easy access to it.” It would be “uncommon” for a gang member to carry an unloaded firearm because “[i]n the event they needed to pull it out and use it, it would be useless to them. They would be better off not carrying a gun at all.” In Officer Lopez’s opinion, a gang member would be safer displaying no gun rather than displaying an unloaded gun.
Members of the Vineland Boys typically yell out their gang’s name when committing a crime to enhance the gang’s notoriety. When asked how yelling out the name of the gang benefits the gang, Officer Lopez explained: “In the gang culture, the crazier you are, the better off you’re going to be. Kind of going back to ‘only the strong survive.’ They want to have that intimidation within that area they’re operating within. And by calling off that name, there’s no doubt within the citizen’s mind as to who claimed it, who runs it, and who controls it.”
The prosecutor asked Officer Lopez several hypothetical questions using facts mirroring the evidence produced at trial. First, he asked for the officer’s expert opinion whether the actions of the two Vineland Boys members “was done for the benefit of, at the direction of, or in association with a criminal street gang.” Officer Lopez replied “yes.” When asked how the Vineland Boys benefitted from physically confronting an individual in their territory, Officer Lopez replied: “The more acts of violence that the gang members commit just proves the reputation of the gang. It continues to strike fear in that community.” When asked whether it benefitted the gang to “behave that way in securing a certain area for their own purposes, ” Officer Lopez responded that it did. He explained that the action enabled the gang “to work within that area [such as an alley] within the community. They can commit their crimes, sell their dope, whatever the case may be, without people calling the police and ratting on them.” Lastly, Officer Lopez opined that the Vineland Boys benefitted “anytime a person who is a witness to a crime committed by one of its members is discouraged from participating in the prosecution of the case” or “calling the police” because the gang “can continue... committing crimes... without being told on” or, alternatively, “its members go to jail [but] somehow the prosecution is not successful against them.”
In addition, Officer Lopez testified briefly about several predicate offenses. In May 2005, Edgar Delgado, a member of the Vineland Boys, was convicted of four counts of attempted murder and one count of assault with a firearm. Similarly, Antonio Padilla, a member of the Vineland Boys, was convicted of four counts of attempted murder in May 2005.
3. The Defense Case
Defendant testified that he was “never... an active” member of the Vineland Boys and did not participate in gang-banging. He had never harassed or threatened people by yelling “Vineland Boys” at them. Defendant also claimed that Fabela was not a gang member. Defendant conceded, however, that he and his friends intended to form a “clique” within the Vineland Boys so that the gang would “just leave us alone.”
In regard to the events of April 30, defendant testified that he and Fabela were in the alley drinking and smoking methamphetamine when Quiroz approached them. Quiroz told them that he was going to become a police officer. Defendant, in a friendly way, warned him not to talk about being a police officer. In the course of that conversation, defendant accidentally pulled the chain off of Quiroz’s neck. Defendant denied that either he or Fabela threatened Quiroz or yelled “Vineland Boys” at him. As for the second confrontation with Quiroz, defendant denied that he or Fabela threatened Quiroz with a firearm. He claimed that the only object they had was a five to six-inch pipe they used to smoke methamphetamine. When asked if Fabela had retrieved a firearm, defendant replied: “Honestly, I didn’t notice.”
DISCUSSION
A. WITNESS DISSUASION
Defendant first contends that the evidence is insufficient to sustain his conviction for attempting to dissuade Quiroz from testifying against Montano in his prosecution for De La Torre’s murder.
The principles applicable to an appellate contention of insufficient evidence are well settled. “In reviewing a claim of insufficiency of the evidence, we review the record to determine whether it contains substantial evidence from which a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. [Citation.] The test is whether the trier of fact’s conclusions are supported by substantial evidence, i.e., evidence that is reasonable in nature, credible, and of solid value. [Citation.] We consider the evidence in a light most favorable to the judgment and draw reasonable inferences in support of the judgment. [Citation.]” (People v. McElroy (2005) 126 Cal.App.4th 874, 881.)
Before addressing the particulars of defendant’s contention, we note that appellate review of this record is further informed by the fact that the prosecutor relied upon a theory of aiding and abetting. The pattern instructions explaining aiding and abetting (CALCRIM Nos. 400 and 401) were submitted to the jury. In closing argument, the prosecutor argued that the facts supported application of the theory as to all charges. Substantial evidence supports application of that theory. Both defendant and Fabela were members of the Vineland Boys and called out the gang’s name in confronting Quiroz. The two men were together in the alley and coordinated their actions, as exemplified by defendant’s retrieval of the gun from the trash can and transfer of it to Fabela who then pointed it at Quiroz. In addition, the two left the alley together in a van. We therefore will assume in our following discussions that the jury found criminal liability based upon aiding and abetting so that Fabela’s actions are as significant as defendant’s in determining whether substantial evidence supports defendant’s three convictions.
It is a crime to knowingly and maliciously “attempt[] to prevent or dissuade another person... who is witness to a crime from doing any of the following.... [¶] (2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof.” (§ 136.1, subd. (b)(2).) “‘Malice’ means an intent to vex, annoy, harm, or injure in any way another person, or to thwart or interfere in any manner with the orderly administration of justice.” (§ 136, subd. (1).) The crime requires proof that “the defendant specifically intended to dissuade a witness from testifying.” (People v. Young (2005) 34 Cal.4th 1149, 1210.) Because the focus is on the defendant’s actions and intent, “[t]he fact that no person was... in fact intimidated, shall be no defense against any prosecution under this section.” (§ 136.1, subd. (d).)
In this appeal, defendant argues that “there was no evidence he specifically intended his remarks or his actions to dissuade Quiroz from cooperating with the authorities” because “[neither he] nor Fabela said anything to Quiroz about not speaking to the police, not testifying in the De La Torre murder trial, not cooperating with the police, or not being a snitch.” He therefore claims that “[t]he most the evidence established was [that his] and Fabela’s conduct amounted to generic harassment which does not prove beyond a reasonable doubt [defendant] knew he was trying to prevent or discourage Quiroz from cooperating.” (Boldface in original.)
Defendant’s arguments miss the mark. To determine whether substantial evidence exists to support his conviction, we do not, as defendant does in his briefs, parse defendant’s and Fabela’s individual actions and words. Instead, we look at the totality of their conduct. “The language of section 136.1 focuses on an unlawful goal or effect, the prevention of testimony, rather than on any particular action taken to produce that end. ‘Prevent’ and ‘dissuade’ denote conduct which can occur over a period of time as well as instantaneously. The gravamen of the offense is the cumulative outcome of any number of acts, any one of which alone might not be criminal,” (People v. Salvato (1991) 234 Cal.App.3d 872, 883, italics added.) Furthermore, “‘[t]here is, of course, no talismanic requirement that a defendant must say “Don’t testify” or words tantamount thereto, in order to’” violate section 136.1. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344.) As long as a defendant’s words and actions support the reasonable inference that he attempted to induce a person to withhold testimony, a conviction of dissuading a witness is proper. (Ibid.; see also People v. Young, supra, 34 Cal.4th at p. 1210 [sufficient evidence of witness dissuasion found in “the combination of defendant’s actions and words.”] And “[t]he intent with which a person acts is rarely susceptible of direct proof and usually must be inferred from facts and circumstances surrounding the offense. [Citations.]” (People v. Massie (2006) 142 Cal.App.4th 365, 371.)
The evidence, viewed in the light most favorable to the judgment, supports defendant’s conviction for witness dissuasion. Quiroz had witnessed a member of the Vineland Boys (Montano) murder De La Torre. The Vineland Boys gang was aware of Quiroz’s presence at the murder. Shortly thereafter, Quiroz cooperated with the police and identified Montano as the shooter. Quiroz’s cooperation with the police was set forth in police reports that were turned over to Montano’s attorney.
Six weeks after De La Torre’s murder, defendant and Fabela, individuals Quiroz knew to be members of the Vineland Boys, confronted Quiroz in the alley. During the first confrontation, they identified themselves as members of the Vineland Boys, told Quiroz of their dislike of police, bragged about having a reputation for killing police, and made hand motions as if they had guns. Defendant ripped a chain off of Quiroz’s neck and made a threatening remark (“I’m going to crack your mouth”). In addition, Fabela made statements minimizing De La Torre’s death and reaffirming Fabela’s allegiance to the Vineland Boys.
In the second confrontation, defendant retrieved a firearm from a trash can and gave it to Fabela who pointed it at Quiroz. Defendant yelled “Vineland Mafia” and Fabela yelled “Vineland Boys.” Quiroz took these actions as a threat to kill him in the future.
Based upon these facts, a reasonable jury could find that defendant had acted with the specific intent of dissuading Quiroz from testifying against Montano even though no express direction to do so was given. That inference is supported by the evidence that immediately after the confrontation, Quiroz contacted Detective Oppelt-the officer to whom he had identified Montano as the shooter-and told him that he was frightened and threatened by the confrontation. In sum, substantial evidence supports the conviction. (See People v. Ford (1983) 145 Cal.App.3d 985, 989.)
The trial court denied defendant’s motion for a new trial which attacked the sufficiency of the evidence on many of the same grounds advanced on appeal. The court stated: “I believe that you could infer, as I think the jury did, that they took the totality of the circumstances surrounding the events and they believed that intimidation had taken place and they did that by circumstantial evidence. And I don’t see any basis for me to throw out the jury’s verdict.”
B. CRIMINAL THREATS
Defendant next contends that the evidence is insufficient to support his conviction for making criminal threats (§ 422).
A conviction of section 422 requires the prosecution to prove:
“‘(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, ” (2) that the defendant made the threat “with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out, ” (3) that the threat--which may be “made verbally, in writing, or by means of an electronic communication device”--was “on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, ” (4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family’s safety, ” and (5) that the threatened person’s fear was “reasonabl[e]” under the circumstances.’ [Citations.]” (In re George T. (2004) 33 Cal.4th 620, 630.)
Defendant’s contention of insufficient evidence explicitly concedes that “there was substantial evidence to support the jury’s finding that verbal threats were made to Quiroz.” Consequently, he focuses on what he claims is the lack of substantial evidence to support the jury’s implied findings that he “intended his statement be considered a threat or that he intended to commit a crime resulting in death or great bodily injury to ‘someone’” and that Quiroz experienced sustained fear as a result of the statements. Defendant characterizes the two confrontations as “brief and nothing more than an exchange of expletives and posturing[, ]” “no more than angry utterances which are not sufficient to constitute a violation of section 422.” We disagree.
In regard to the requirement that the defendant entertain the specific intent that his statement(s) be taken as a threat of great bodily injury or death, “it is recognized that ‘[t]he element of intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence.’ [Citations.]” (People v. Falck (1997) 52 Cal.App.4th 287, 299.) Here, the jury could reasonably infer that defendant intended for Quiroz to understand his and Fabela’s statements as threats of great bodily injury or death. Their statements were explicitly menacing and conveyed serious threats. In the first confrontation, defendant told Quiroz “I’m going to crack your mouth” and Fabela told Quiroz that he would have shot him if he had a gun. Further, the jury could properly consider the actions of defendant and Fabela in deciding whether defendant intended the statements to be taken as a threat because those actions gave color to their statements. (People v. Mendoza, supra, 59 Cal.App.4th at p. 1340; People v. Gudger (1994) 29 Cal.App.4th 310, 321.) Both men, after identifying themselves as members of the Vineland Boys, made hand gestures consistent with holding a gun and defendant physically assaulted Quiroz by ripping a chain off of his neck. In the second confrontation, defendant retrieved a hidden firearm and gave it to Fabela who pointed it directly at Quiroz. From all of this evidence, a reasonable jury could infer that defendant, acting in concert with Fabela, entertained the specific intent that Quiroz perceive the statements as a threat of great bodily injury or death.
In a similar vein, substantial evidence supports the jury’s implied finding that Quiroz experienced sustained fear as a result of the statements. To uphold a conviction, the fear must be reasonable under the circumstances (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140) and must be sustained for “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [15 minutes of fear of an armed and mobile defendant who threatened the victim and her daughter constitutes sustained fear].)
Quiroz testified that he felt threatened during both confrontations because of the danger defendant and Fabela posed to him and his family. After the confrontations, Quiroz telephoned Detective Oppelt and told him that he was frightened and felt threatened. Shortly thereafter, Quiroz and his family relocated because Quiroz feared for their safety. At trial, Quiroz remained frightened and fearful of testifying. This constitutes substantial evidence of sustained reasonable fear.
Defendant, nonetheless, argues that the evidence set forth in the preceding paragraph was insufficient because “Quiroz’s behavior was inconsistent with someone who felt scared or threatened.” In so arguing, defendant focuses on isolated portions of Quiroz’s testimony (he felt threatened but not scared) and what Quiroz did not do (e.g., call the police after the first confrontation). This approach is not persuasive. On appeal, we must view the evidence in the light most favorable to the judgment, drawing all reasonable inferences in its support. The resolution of conflicts and inconsistencies in a witness’s testimony is the exclusive province of the jury. (See People v. Young, supra, 34 Cal.4th at p. 1181.) Application of these well-settled rules of appellate review leads to only one conclusion: the record contains substantial evidence to sustain the jury’s implied finding that Quiroz sustained reasonable fear as a result of the threats.
C. ASSAULT WITH A FIREARM
Defendant next attacks the sufficiency of the evidence to sustain his conviction for assault with a firearm (§ 245, subd. (a)(2)). He contends that “there was insufficient evidence for any rational trier of fact to conclude the object pointed at [Quiroz] during the incident was a ‘firearm’ as defined in the Penal Code.” (Capitalization and boldface omitted.) We disagree.
CALCRIM No. 875, the pattern instruction defining a firearm, was submitted to the jury. It states: “A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or any other form of combustion.” Defendant implicitly concedes this is a proper definition of “firearm.”
Section 245, subdivision (a)(2) does not define “firearm.”
Whether the object a defendant used constituted a “firearm” can be established by either direct or circumstantial evidence. “Most often, circumstantial evidence alone is used to prove the object was a firearm. This is so because when faced with what appears to be a gun, displayed with an explicit or implicit threat to use it, few victims have the composure and opportunity to closely examine the object; and in any event, victims often lack expertise to tell whether it is a real firearm or an imitation.” (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1436.) This is particularly so when, as here, the object is not recovered by the police. Further, a jury is not required to give a defendant “the benefit of the victim’s inability to say conclusively the [object used] was a real firearm. This is so because ‘defendant’s own words and conduct in the course of an offense may support a rational fact finder’s determination that he used a [firearm].’ [Citation.]” (Id. at pp. 1436-1437.)
Quiroz testified that defendant retrieved a gun from the trash. Defendant handed the gun to Fabela who pointed it directly at Quiroz. Quiroz described the gun in detail for the jury. A drawing Quiroz had made of the gun the day after the confrontations was admitted into evidence. (See fn. 3, ante,) Significantly, defendant and Fabela used the gun shortly after a confrontation with Quiroz in which both men had made hand motions suggesting use of a gun and Fabela had stated that if he had a gun, he would have killed Quiroz. In addition, Officer Lopez testified that it would be uncommon for a Vineland Boys member to display anything other than a loaded firearm. Lastly, a few days after the confrontations Fabela agreed to accompany the police to find the gun he and defendant had used in order to prevent a child from finding it and injuring himself or others. Taken together, this evidence was sufficient for a rational trier of fact to conclude that defendant and Fabela had used an object which was a real, operable and loaded firearm. (People v. Monjaras, supra, 164 Cal.App.4th at pp. 1435-1438; People v. Green (1985) 166 Cal.App.3d 514, 517-518.)
Defendant’s contrary arguments are not persuasive. He argues that Quiroz’s “description of the gun was woefully lacking. Quiroz never testified he had any experience with firearms, that he had ever been exposed to guns, fired a gun, loaded a gun, held a gun, cleaned a gun, bought a gun, been the victim of a ‘gun crime, ’ let alone had the ability to distinguish a real gun from a facsimile. Apart from the gun being pointed at him, Quiroz never said Fabela took aim, cocked the gun, sighted the gun, or made any move to ‘fire the gun.’ The ‘gun’ was never found. There was no evidence establishing this was a ‘firearm’ as opposed to a replica, a toy gun, or some other facsimile.” “[T]here was no evidence the object in Fabela’s hand was designed to shoot or had any capability to shoot. No one provided any testimony on this fact.”
These arguments fail because there is no requirement that the victim qualify as an expert on firearms for his testimony to be sufficient to sustain a finding a (real) firearm was used. (People v. Monjaras, supra, 164 Cal.App.4th at p. 1436.) “As the old saying goes, ‘if it looks like a duck, and quacks like a duck, it’s a duck.’ The [gun that defendant retrieved and that Fabela pointed at Quiroz] looked like a firearm, and it in effect communicated that it was a firearm when [Fabela] menacingly displayed it.” (Id, at p. 1437.) When, as here, an individual displays “an object that looks like a gun, the object’s appearance and the defendant’s conduct and words... may constitute sufficient circumstantial evidence to support a finding that it was a firearm[.] In other words, the victim’s inability to say conclusively that the gun was real and not a toy does not create a reasonable doubt, as a matter of law, that the [object] was a firearm. [Citation.]” (Id, at pp. 1437-1438.)
D. GANG ENHANCEMENT
1. Introduction
Defendant contends that there is insufficient evidence to sustain the jury’s findings on the gang enhancement. We are not persuaded.
Section 186.22, subdivision (b)(1) provides an enhanced sentence for any person who is convicted of a felony committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Our role in evaluating a sufficiency of the evidence attack on a gang finding is guided by the deferential substantial evidence standard of review. We must view the record in the light most favorable to the jury’s true finding and draw all inferences from the evidence which support the finding. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.)
Defendant does not contest that the Vineland Boys is a criminal street gang. Instead, he argues that Officer Lopez’s expert testimony was insufficient to establish that the crimes were committed to benefit the gang and that he (defendant) acted with the required specific intent.
2. The Crimes Were Committed for the Benefit of the Vineland Boys
Noting that the premise of Officer Lopez’s expert opinion that the crimes were committed for the benefit of the Vineland Boys was his belief that the perpetrators of the offenses (here, defendant and Fabela) were members of the Vineland Boys, defendant first urges that there was no evidence to support that belief. We disagree. Officer Lopez concluded that defendant and Fabela were gang members for two reasons. The first was the presence of the two men’s street monikers on a wall listing members of the Criminals clique of the Vineland Boys gang. The second was that defendant had admitted to Detective Oppelt that he was a member of the Criminals clique and, if asked “where he was from, ” would respond “the Criminal clique” of the Vineland Boys gang. This was a sufficient basis from which Officer Lopez could opine that defendant and Fabela were members of the Vineland Boys gang. (People v. Duran (2002) 97 Cal.App.4th 1448, 1464 [“an individual’s membership in a criminal street gang is a proper subject for expert testimony”].) In addition, Quiroz testified that he knew defendant and Fabela were members of the Vineland Boys. Contrary to what defendant suggests, the facts that he did not have Vineland Boys tattoos and had not admitted gang membership directly to Officer Lopez and that Officer Lopez had not seen him write his street moniker (“Yuka”) on the wall did not preclude Officer Lopez, given the other information he had, from opining that defendant was a member of the Vineland Boys. Those facts went, instead, to the weight to be accorded the officer’s testimony.
To the extent that defendant suggests that a section 186.22 gang enhancement requires proof that he is an active or current member of the criminal street gang that benefits from his crimes, he is wrong. There is no such requirement. (People v. Bragg (2008) 161 Cal.App.4th 1385, 1402; In re Ramon T. (1997) 57 Cal.App.4th 201, 206-207.) CALCRIM No. 1401, the pattern instruction about the gang enhancement, informed the jury: “The People need not prove that the defendant is an active or current member of the alleged criminal street gang.”
Next, defendant urges that the evidence failed to establish that the crimes were committed for the benefit of the Vineland Boys. We disagree. Officer Lopez is a well-seasoned gang expert, having spent his entire police career in gang enforcement. He received extensive training about gangs and testified more than 10 times as a gang expert. The Vineland Boys gang was the focus of his work for four and a half years, giving him frequent contacts with its members. Based upon that training and experience, Officer Lopez gave his expert opinion about how the crimes inured to the gang’s benefit. First, commission of any act of violence in Vineland Boys territory benefitted the gang because it reminded local residents of the gang’s presence and willingness to be violent. This, in turn, intimidated potential witnesses to the gang’s criminal actions from contacting the police. Further, dissuading a witness from testifying against a gang member sent the message that any prosecution against the gang could not and would not be successful. In addition, Officer Lopez explained that calling out the gang’s name, as defendant and Fabela had done when confronting Quiroz, benefited the gang by enhancing the gang’s notoriety.
To avoid this conclusion, defendant argues that as a matter of law a gang expert’s testimony is insufficient to sustain a finding that a crime was committed to benefit a gang. Defendant relies upon a series of cases that have concluded, based upon the specific facts presented, that a police officer’s expert testimony did not constitute substantial evidence to support the finding that a crime had been committed for the benefit of a street gang. (People v. Ochoa (2009) 179 Cal.App.4th 650; People v. Ramon (2009) 175 Cal.App.4th 843; In re Frank S. (2006) 141 Cal.App.4th 1192; and People v. Killebrew (2002) 103 Cal.App.4th 644.) In People v. Ramon, supra, 175 Cal.App.4th 843, the reviewing court synthesized this line of authority as holding that “the officer’s opinion was nothing more than his view of how the case should have been decided and was inadmissible” because “[t]here were no facts from which the expert could discern whether [the gang members] were acting on their own behalf... or were acting on behalf of [their gang].” (Id, at pp. 850 & 851.) “The People’s expert simply informed the jury of how he felt the case should be resolved.... While it is possible the [gang members] were acting for the benefit of the gang, a mere possibility is nothing more than speculation. Speculation is not substantial evidence.” (Id, at p. 851.) We are not persuaded that these cases apply to the matter under review.
For one thing, the cases fail to give sufficient consideration to a well-settled body of law. As we noted in People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, footnote 4: “A gang expert may render an opinion that facts assumed to be true in a hypothetical question present a ‘classic’ example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence.” Consequently, it was perfectly permissible for Officer Lopez, an expert on gang culture and the Vineland Boys, to explain how particular criminal conduct could enhance the gang’s reputation or benefit the gang. (People v. Ward (2005) 36 Cal.4th 186, 209-210; People v. Gardeley (1996) 14 Cal.4th 605, 618.) Our Supreme Court cogently observed in discussing People v. Killebrew, supra, 103 Cal.App.4th 644: “Obviously, there is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses though the use of hypothetical questions regarding hypothetical persons.” (People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3.) Here, Officer Lopez properly answered hypothetical questions rooted in the evidence presented at trial. In light of the well-settled principle that it is for the jury to determine the weight to be accorded an expert’s testimony (see People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931), we decline defendant’s implied invitation to reweigh Officer Lopez’s testimony. “The reviewing court does not perform the function of reweighing the evidence; instead, the court must draw all inferences in support of the verdict that can reasonably be deduced from the evidence.” (People v. Culver (1973) 10 Cal.3d 542, 548.)
3. Defendant Acted With the Required Specific Intent
Lastly, defendant urges that the evidence is insufficient to establish that he acted with the required “specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) He cites Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia). Garcia held that a finding of a gang enhancement was unsupported because there was no evidence that the defendant committed the crime (robbery) “with the specific purpose of furthering other gang criminal activity” and there was “nothing inherent in the robbery that would indicate that it furthers some other crime.” (Id, at p. 1103, italics added.)
Putting aside the fact that defendant advances no fact-specific argument as to how or why Garcia applies to this case, we previously rejected Garcia’s analysis. In People v. Romero (2006) 140 Cal.App.4th 15, we held that the defendant’s specific intent to promote, further and assist in criminal conduct is established if the defendant intended to promote, further and assist the charged offense(s). (Id, at p. 19; accord, People v. Vazquez (2009) 178 Cal.App.4th 347, 354 [“Like the Romero court, we reject the Ninth Circuit’s attempt to write additional requirements into the statute.... There is no statutory requirement that this ‘criminal conduct by gang members’ be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing”] and People v. Hill (2006) 142 Cal.App.4th 770, 774 [“Garcia,.. misinterprets California law.... [¶] There is no requirement in section 186.22, subdivision (b), that the defendant’s intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits”].)
Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 acknowledged that two California appellate courts (People v. Romero, supra, and People v. Hill, supra) had rejected Garcia’s interpretation of California law but, nonetheless, reaffirmed Garcia’s analysis. (Id. at pp. 1079-1083, but see conc. & dis. opn. of Wardlaw, J. at pp. 1083-1088.)
Here, substantial evidence of defendant’s specific intent was offered. Defendant acted in concert with Fabela, another member of the Vineland Boys, each calling out the gang’s name, during commission of the offenses. “Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)
E. DENIAL OF MOTION FOR SEPARATE TRIAL
ON GANG ENHANCEMENT
1. Factual Background
Before trial, defendant filed a motion in limine to exclude much of the gang evidence and to conduct a bifurcated trial on the gang enhancement allegations. In regard to the bifurcation request, defendant noted that the prosecutor intended to establish the predicate offenses through proof that Vineland Boys members had been convicted of attempted murder and assault with a deadly weapon. Defendant argued that these predicate offenses were “far more serious and violent than the charges being tried [and thus] extremely prejudicial and reason in itself to bifurcate the trial of the street gang allegation... [because t]his case does not involve murder, attempted murder, or any type of a shooting.” (Boldface in original.)
The parties briefly argued the motion immediately before trial commenced. Relying upon the fact that the prosecutor would offer evidence of the predicate offenses during trial, defense counsel argued “the jury is going to be over impacted hearing all of this evidence about other gang members whom the prosecution is trying to align with my client as being part of the same gang and all of the convictions for these much greater offenses.” The prosecutor opposed the motion, noting that “the gang evidence was central to proving motive and intent, not merely for the purpose of proving a gang allegation.” The trial court denied the request to bifurcate, stating “I don’t think that bifurcation would be appropriate in this case, ” noting that the charges of witness dissuasion and criminal threats were “so intertwined” with the gang evidence that “it would be impossible to try them separately.” The court stated that defendant’s concerns about specific gang evidence “would be subject to a 402 that we would deal with.”
In this appeal, defendant makes no claim of error about the trial court’s rulings permitting introduction of specific gang evidence.
2. Discussion
People v. Hernandez (2004) 33 Cal.4th 1040 (Hernandez) sets forth the standards to be used when the trial court is asked to bifurcate trial of a gang enhancement. The trial court has the discretion to grant that request but because “the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense[, ]... less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.” (Id, at p. 1048.) Hernandez explained that “evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation-including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]” (Id, at pp. 1049-1050.) But “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself-for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged-a court may still deny bifurcation.... [¶]... [T]he trial court’s discretion to deny bifurcation of a charged gang enhancement is... broader than its discretion to admit gang evidence when the gang enhancement is not charged. [Citation.]” (Id, at p. 1050, italics added.) In moving for bifurcation, the defense must “‘clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.]” (Id, at p. 1051.)
Defendant has failed to establish that the trial court abused its discretion in denying bifurcation. The propriety of the trial court’s ruling is judged by the record as it existed when the bifurcation motion was made. (See People v. Catlin (2001) 26 Cal.4th 81, 110 [appellate review of denial of pretrial motion to sever counts].) Defendant’s claim that “[t]he charges in this case were not linked to gang activity” is refuted by the record. The trial court was very familiar with the facts of the case because it had already presided over Fabela’s trial. It knew that the actions and statements of defendant and Fabela arose out of their attempt to dissuade Quiroz from testifying about a murder committed by Montano (a fellow member of the Vineland Boys). As such, the court recognized that the gang evidence was intertwined with proving motive and intent for the three charged crimes. The cross-admissibility of the evidence therefore dispelled any inference that defendant would be prejudiced by admission of the gang evidence.
Defendant also argues that the trial court’s denial of his bifurcation request was an abuse of discretion because “the predicate offenses were of a far more serious and violent nature than the charges being tried and as such were extremely prejudicial.” The argument is not persuasive. The evidence of the predicate offenses would be (and was) simple and straightforward (brief testimony from Officer Lopez) and only one small part of the otherwise cross-admissible gang evidence. “Even if some of the expert testimony would not have been admitted at a trial limited to guilt, the countervailing considerations that apply when the enhancement is charged permitted a unitary trial. The evidence that [two] members of [the Vineland Boys] had been convicted of [attempted murder and assault with a deadly weapon] would certainly not have been admissible at a trial limited to the charged offense[s], but that evidence was also not particularly inflammatory. Those convictions were offered to prove the charged gang enhancement, so no problem of confusion with collateral matters would arise, and they were not evidence of offenses for which [the] defendant might have escaped punishment. Any evidence admitted solely to prove the gang enhancement was not so minimally probative on the charged offense[s], and so inflammatory in comparison, that it threatened to sway the jury to convict regardless of defendant[’s] actual guilt. Accordingly, defendant[] did not meet [his pretrial] burden ‘to clearly establish that there [was] a substantial danger of prejudice requiring that the charges be separately tried [from the gang enhancements].’ [Citation.] The court acted within its discretion in denying bifurcation.” (Hernandez, supra, 33 Cal.4th at p. 1051.)
Defendant next urges that, assuming the trial court did not abuse its discretion in denying the motion before trial, the unitary proceeding resulted in a denial of due process. (See People v. Mendoza (2000) 24 Cal.4th 130, 162 [“Even if a trial court’s severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the ‘defendant shows that joinder actually resulted in “gross unfairness” amounting to a denial of due process’”].) Defendant argues that the trial “morphed into a classic battle of good-versus-evil in which [he] was unfairly and falsely portrayed as a malevolent, violent, gang-banging criminal, which he was not and which was not established by the evidence. [¶]... [A] reasonable juror not polluted by the introduction of gang evidence likely would have entertained a reasonable doubt of [his] guilt of the charged crime[s].... Because evidence to prove the gang enhancement was only marginally relevant to the charged crime[s] and highly prejudicial, [his] conviction must be reversed.” We disagree.
As explained above, the gang evidence was not, as defendant claims, “only marginally relevant” to the case. The evidence was inextricably bound up with proving defendant’s guilt of the three charged offenses because it established motive and intent. Consequently, the vast majority of the gang evidence would have been admitted at trial absent the gang enhancement. Further, the jury was twice instructed about the limited purpose of the gang evidence. This occurred first when, shortly after Officer Lopez began his expert testimony about the Vineland Boys gang, defense counsel asked the court to submit a limiting instruction. The court did so, informing the jury “You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancement or that the defendant had motive to commit the crime. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness when you consider the facts and information relied upon by an expert witness in reaching his opinion. You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or has a disposition to commit a crime.” (Italics added.) The jury is presumed to have followed this instruction. (People v. Adcox (1988) 47 Cal.3d 207, 253.) Furthermore, at the end of trial, the court submitted CALCRIM No. 1403, the pattern instruction about the limited purpose of gang evidence. This instruction, which the jury presumptively followed, nullified any potential for prejudice. (People v. Delgado (1993) 5 Cal.4th 312, 331.)
The instruction reads:
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
“You may consider evidence of gang activity only for the limited purpose of deciding whether:
“The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes and enhancements charged; OR
“The defendant had a motive to commit the crimes charged.
“You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion.
“In formulating his opinion, the gang expert is entitled to rely upon certain hearsay matters. These hearsay matters are only to be considered by you in evaluating the basis of the expert’s opinion and are not to be considered for the truth.
“You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.”