Opinion
D057357 Super. Ct. No. RIF130094
08-29-2011
THE PEOPLE, Plaintiff and Respondent, v. DERRICK JONTEY DOUGLAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Riverside County, Kelly L. Hansen, Judge. Affirmed in part and reversed in part.
An information charged defendant Derrick Douglas with numerous counts and enhancements arising out of his relationship with a 13-year-old victim (A.). Douglas was charged with 10 counts of committing a lewd and lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a), counts 1-10), 10 counts of procurement of a child under the age of 16 for purposes of a lewd and lascivious act (§ 266j, counts 11-20), three counts of pimping a minor (§ 266h, subd. (b), counts 21-23), and one count of conspiring to pimp a minor (§ 266h, subd. (b), count 24). The information further alleged counts 11 through 24 were committed for the benefit of, at the direction of, or in association with, a criminal street gang within the meaning of section 186.22, subdivision (b). The information also alleged Douglas had two prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise specified.
Trial of the prior prison term allegations was bifurcated from the remaining counts and allegations. After the court granted Douglas's motion for acquittal as to counts 15 through 17 and 22, the jury found Douglas guilty of all remaining counts and found true the gang enhancement allegations. Douglas subsequently admitted one prior prison term allegation and the prosecution dismissed the other. Douglas was sentenced to 23 years in prison.
On appeal, Douglas contends the evidence was insufficient to support two of the section 266j convictions, and insufficient to support the jury's verdict on the gang enhancement allegations. He also contends the court erred in certain evidentiary rulings.
FACTUAL BACKGROUND
A. Underlying Crimes Evidence
In early 2006, A. was 13 years old. She met Douglas at a mall and he gave her his telephone number. A. knew Douglas as "Deebo" or "D" and had heard he was a member of the "Edgemont Criminals" gang.
A gang expert testified at length concerning whether the Edgemont Criminals was a street gang within the meaning of section 186.22. (See part I.B., post.)
In February 2006, A. ran away from home and went to a friend's house. She called Douglas, and he (along with a friend) picked her up at her friend's house and then drove to a Motel 7 in Moreno Valley. Douglas gave A. some money and left her in the motel room. When he returned a short while later, they kissed and had sex together. Over the course of the next two days and nights, they had sex together on numerous occasions at the Motel 7. A. noticed Douglas had tattoos saying "criminal life," "thug life," and "pimps up, hos down."
After two nights, they left the Motel 7 and met Ashley R. at a Travel Inn Motel in Moreno Valley. Ashley worked as a prostitute for Douglas and became angry because of A's presence and said that Douglas was "her man." Ashley and Douglas argued and Ashley left the motel. Douglas and A. remained at the motel for a week, during which time they frequently had sex.
A. saw that Douglas carried a wad of cash in his pocket, and Douglas told her she could make similar amounts of money by prostituting herself. Douglas explained what she had to do as a prostitute, including how to act and how much to charge. Douglas bought her suggestive clothing to wear, and paid to get her nails and hair done. She understood Douglas expected her to prostitute herself because he would make money from her work and had bought the clothing and beauty treatments.
The Southern California Procuring Counts
After a few days at the Travel Inn Motel, Douglas took A. to Los Angeles to work as a prostitute. Douglas's friend, Jason Miles, drove Douglas and A. from Moreno Valley to Los Angeles. Miles, a pimp known as "Figueroa Fly" or "Bobbie Bangs," was also accompanied by S.M., Miles's prostitute. On the drive, both Douglas and S.M. advised A. on the protocols for prostitution. When they arrived near Figueroa Street, A. and S.M. were dropped off at an alley to walk to the Figueroa Street "track," an area commonly known for prostitution. While there, A. had a "date" (a sexual encounter for money), and then met with Douglas (as well as Miles and S.M.) and gave Douglas the money she had earned from her date.
After concluding at the Figueroa Street track, the group drove to another area (the Sunset Boulevard track) also commonly known as an area for prostitutes. A. again had a number of dates, and turned the money over to Douglas. The group then drove to a hotel near Los Angeles International Airport to spend the night.
Miles later drove the group to a truck stop in Ontario, California, to allow A. and S.M. to attempt to engage in additional prostitution. However, after the girls attempted to sneak into the area, S.M. was stopped by security and cited for trespassing, and they left the area without getting any customers.
The group eventually returned to Moreno Valley, and moved into a motel room on February 23, 2006. Douglas discussed going to Las Vegas because he wanted to make more money. By the time they left for Las Vegas, A. had participated in more than five dates.
The Nevada Procuring Counts
Douglas and A, accompanied by Tyrell Lancaster (known as "Stick") and Lancaster's prostitute-girlfriend (Nakomi), drove to Las Vegas. A. knew the purpose of the Las Vegas trip was to work as a prostitute for Douglas. Lancaster had a tattoo on his stomach that said "Edgemont" as well as a "909" tattoo on his arm.
After they arrived in Las Vegas, Douglas and Lancaster drove A. (along with Nakomi and another woman) to Fremont Street to get dates. Nakomi and A. thereafter went to a second track where A. had several dates.
Nakomi and A. then rendezvoused with Douglas and Lancaster at the car, where another woman was waiting. Douglas said the new woman was there to make money working for Lancaster. The group then went to another hotel to rent a room, and Douglas and Lancaster left all of the women in the room while the men went to get clothing for the women. When the men returned with the clothing, Lancaster and Nakomi argued because she did not like the clothes Lancaster wanted her to wear and she did not want to leave the room to prostitute herself. Lancaster lost his temper and struck Nakomi, causing her nose to bleed. A. was intimidated by the discipline inflicted on Nakomi, but Douglas laughed and said that was what happened when they had a problem. Nakomi ultimately left to return home on the bus.
Later that evening, Douglas and Lancaster took A. and the remaining women to the Las Vegas Strip to look for dates. They went through a few casinos before entering the Flamingo Hotel and Casino. Detective Gorrell of the Las Vegas Metropolitan Vice Squad was working undercover at the Flamingo to contact women who might be involved in prostitution. He contacted A, then accompanied by two other women, and the conversation eventually turned to negotiating the price for a date. After agreeing on a price for sex, Gorrell and his partner identified themselves and arrested A., who was taken to Juvenile Hall.
A. later told police that she had told her "pimp," whom she identified as "David" or Little Deebo," that she was 15 years old, and she ultimately told him she was 16 years old. A. said she was instructed that, if ever contacted by police, she should use a false name and claim to be 18 years old. A. told police that, while in Las Vegas, she had had four dates (one in a hotel room and three others in cars) and she had given all the money from her prostitution to her pimp.
B. Gang Evidence
Riverside County Sheriff's Detective Colmer testified to the structure and principal activities of the Edgemont Criminals, which included prostitution, drug sales and home burglaries, and to the predicate crimes by gang members. Colmer also related a specific instance in which an underage girl was arrested for prostitution and Ms. Dukes, an adult associated with the Edgemont Criminals, was allegedly involved in that activity.
Colmer testified Douglas was a member of the Edgemont Criminals based on his prior criminal record, tattoos, and contacts with other gang members, and his pimping activities were committed in the company of a longtime Edgemont Criminals member (Lancaster). Colmer also testified that, on the facts of this case, Douglas's pimping activities benefitted the gang.
ANALYSIS
A. The Evidence Is Insufficient to Support Seven Convictions for Violating Section 266j
Douglas was charged with 10 counts of violating section 266j. That section provides:
"Any person who intentionally gives, transports, provides, or makes available, or who offers to give, transport, provide, or make available to another person, a child under the age of 16 for the purpose of any lewd or lascivious act as defined in Section 288, or who causes, induces, or persuades a child under the age of 16 to engage in such an act with another person, is guilty of a felony . . . ."
The information alleged seven of the 10 crimes were committed in Southern California (counts 11 through 17) and the remaining three were alleged to have been committed in Nevada (counts 18 through 20).
At the close of the prosecutor's case, Douglas moved to dismiss five of the 10 counts, arguing the crime is completed when the defendant has engaged in the proscribed conduct (e.g. of giving, transporting or providing an underage person for purposes of committing a violation of § 288), independently of the victim's conduct (e.g. of thereafter engaging in conduct proscribed by § 288), and therefore the number of counts cannot be multiplied by the number of customers A. actually had sex with during the relevant time frames. The defense argued there were at most five occasions when Douglas transported A. to a place for the purposes of engaging in conduct violating section 288, and therefore only five counts were supported by the evidence. The prosecution opposed the motion, asserting that each time the victim engaged in an act in violation of section 288, the defendant who gave, transported or provided the underage person can be charged with a separate violation of section 266j.
The court largely agreed with the defense interpretation of section 266j. However, the court concluded there was evidence that Douglas transported A. seven times in violation of the statute (four in Southern California and three in Nevada), and therefore permitted the prosecution to argue that Douglas was guilty of seven different violations of section 266j. The trial court dismissed three of the alleged violations of section 266j (counts 15, 16 & 17).
On appeal, the parties dispute whether there was substantial evidence to support convictions for all of the counts occurring in Southern California and all of the counts occurring in Nevada. Douglas concedes the evidence supports three of the Southern California counts because there was evidence he (1) transported A. from Moreno Valley to the Figueroa Street track in Los Angeles (the Figueroa offense, count 12), (2) thereafter drove her from the Figueroa Street track to the Sunset Boulevard track (the Sunset offense, count 13), and (3) on a different day transported A. to a truck stop in Ontario, California (the Ontario offense, count 14). Douglas asserts, however, there is no evidence to support another occasion when he allegedly transported A. for the proscribed purposes in Southern California.
The prosecutor argued below, and the People reassert on appeal, that count 11 was supported by evidence Douglas transported A. from Moreno Valley "to Los Angeles," and that counts 12 and 13 were supported by evidence Douglas transported A. to the Figueroa Street and Sunset Boulevard tracks in Los Angeles. However, the People cite no evidence Douglas transported A. from Moreno Valley to some place in Los Angeles to engage in the proscribed conduct apart from the transports upon which the Figueroa and Sunset counts were based, and the People cite no evidence that A's testimony (e.g., that Douglas drove her from Moreno Valley to Los Angeles to engage in prostitution) was not duplicative of her testimony that he drove her from Moreno Valley to the Figueroa Street and Sunset Boulevard tracks to engage in prostitution. We conclude that, although there was evidence Douglas transported A. to three locations in Southern California (the Figueroa Street and Sunset Boulevard tracks and the Ontario truck stop—counts 12, 13 and 14) for the proscribed purposes of having A. engage in prostitution at those locales, there is no evidence to support a conviction of a fourth count in Los Angeles (count 11).
However, we agree with the People that there is sufficient evidence to support three counts of violating section 266j in connection with Douglas's actions in Nevada. When A. was interviewed by police after her arrest, she stated Douglas and Lancaster originally took Nakomi and A. to the "first track" where Nakomi had a date, but the men then picked up A. and Nakomi from the first track and told them that was an "old track . . . people weren't on it no more," so the men then took A. and Nakomi to a second track, where A. had two dates. The men then collected A. and Nakomi and took them to the Orleans Hotel. After the men brought them new clothes, the men thereafter delivered A. and two women to the Las Vegas Strip to look for dates, where A. and the women were ultimately arrested by vice officers. There was therefore substantial evidence the men delivered A. to three separate places to seek dates, thereby providing substantial evidence to support three convictions of section 266j (counts 18, 19 & 20) occurring in Las Vegas.
We conclude there was sufficient evidence to support the convictions for counts 12 through 14 and 18 through 20. However, we conclude there is insufficient evidence to support the conviction for count 11, and therefore reverse the conviction on that count.
Our reversal for insufficiency of the evidence bars any retrial as to this count. (People v. Hatch (2000) 22 Cal.4th 260, 271.)
B. The Trial Court's Ruling on Admission of the Dukes Evidence Was Not an Abuse of Discretion
Douglas contends the trial court erred by denying his motion to preclude gang expert Detective Colmer from testifying about an incident involving Ms. Dukes, an affiliate of the Edgemont Criminals gang. The trial court overruled Douglas's Evidence Code section 352 objection to the evidence, and Douglas argues on appeal that the probative value of the evidence was so clearly outweighed by its prejudicial impact that the ruling was an abuse of discretion.
Background
Douglas objected to the proposed testimony from Detective Colmer that Dukes had pimped an underage girl through the Internet and, when the date did not run smoothly, investigated the difficulties while accompanied by Edgemont Criminals gang members. Douglas objected (on among other grounds) that the evidence should be excluded under Evidence Code section 352, but the trial court overruled his objection. On appeal, Douglas argues the probative value of the evidence was so clearly outweighed by its prejudicial impact that the ruling was an abuse of discretion.
Douglas also objected that the evidence was irrelevant as a "predicate act" (because Dukes was not convicted of a felony as a result of that incident) and the expert was relying on hearsay. The court overruled those objections and Douglas does not assert error as to those rulings.
The Dukes evidence was introduced as part of the prosecution's foundation for Colmer's opinion that pimping underage girls was an aspect of gang-related conduct by the Edgemont Criminals. Colmer testified Dukes was an affiliate of the Edgemont Criminals gang. An investigation determined that Dukes had placed an ad on Craigslist offering the sexual services of a 16-year old girl. An undercover officer arranged a meeting with the 16-year old girl (not Dukes) and, when the girl appeared at the "sting house" and offered to exchange sex for money, she was arrested. Approximately one hour later, Dukes came to the sting house (accompanied by another associate of the Edgemont Criminals gang) and asked the undercover officer if the 16-year old girl was there. The officer said, "No, no one here by that name," and Dukes and her companion left. However, an hour later, Dukes again appeared at the sting house, this time accompanied by three or four other validated members of the Edgemont Criminals gang to pick up the minor girl. On cross-examination, Colmer conceded the sting house was not located on Edgemont Criminals turf, and the officer who investigated the incident concluded the group that accompanied Dukes on the second visit to the sting house did not have "criminal knowledge of the incident."
Colmer also testified to another example of alleged attempted pimping of an underage girl by an Edgemont Criminals gang member with whom Douglas associated. Colmer testified that he learned a Mr. Lewis (an admitted Edgemont Criminals member or associate) had been convicted of unlawful sexual intercourse with a 12-year-old girl. The police report stated the girl told police that Lewis tried to convince her to prostitute herself, and had transported her to various places to facilitate that activity, but the girl had each time deflected his entreaties by claiming she was on her period. A. told Colmer that Douglas "ran with" Lewis.
Legal Standards
A. determination of inadmissibility of evidence under Evidence Code section 352 requires balancing the probative value of the evidence against its potential prejudicial effect. (People v. Ewoldt (1994) 7 Cal.4th 380, 404-405.) " 'The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' " (People v. Zapien (1993) 4 Cal.4th 929, 958.) Rather, evidence is unduly prejudicial under Evidence Code section 352 only when it " ' " 'uniquely tends to evoke an emotional bias against the defendant as an individual and . . . has very little effect on the issues.' " ' " (People v. Barnett (1998) 17 Cal.4th 1044, 1118.) On appeal, a trial court's ruling under Evidence Code 352 is reviewed for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.)
Analysis
We conclude the trial court's ruling was not an abuse of its discretion. The court could conclude the Dukes evidence was probative of whether Douglas's pimping of A. was "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(b)(1)), as charged in the information. The expert testified the Edgemont Criminals gang had expanded its criminal activities to include pimping for prostitutes, and the Dukes example (as well as the Lewis example) involved Edgemont Criminals associates or members acting or attempting to act as pimps for underage prostitutes. The Dukes example exemplified collaborative conduct by gang members or associates in pimping for underage prostitutes, similar to the conduct in which Douglas and a fellow Edgemont Criminals member (Lancaster) had engaged during the Las Vegas excursion. A. trial court could also rationally conclude this probative value was not outweighed by its unduly prejudicial impact, because the Dukes evidence was arguably less inflammatory than evidence of Douglas's activities and Lewis's activities, considering the much younger ages of their victims than of Dukes's victim.
Douglas contends the Dukes evidence had minimal probative value because (1) Dukes was not charged with pimping but was only charged with contributing to the delinquency of a minor, and (2) the gang connection was debatable because the officer who investigated the Dukes incident did not believe the larger group accompanying Dukes had "criminal knowledge." Although these facts may have provided grounds for the defense to cross-examine the expert, and to argue in closing that the Dukes evidence lacked persuasive effect, these facts did not eliminate its relevance to the issues in dispute.
For the same reason, we reject Douglas's subsidiary argument that his counsel was ineffective for not raising, as part of his motion in limine, that the officer who investigated the Dukes incident did not believe the larger group accompanying Dukes had "criminal knowledge." First, the officer who gave that opinion may have been unaware the Edgemont Criminals gang had expanded its criminal activities into prostitution. Moreover, even assuming the issue had been raised, the evidence would have remained relevant, and therefore Douglas cannot show it is reasonably likely the court would have excluded the evidence had this additional information been made available at the time of the in limine motion, which is fatal to Douglas's ineffective assistance of counsel claim. (In re Fields (1990) 51 Cal.3d 1063, 1079 [absence of prejudice is fatal to ineffective assistance of counsel claim].)
C. Findings on the Gang Allegations
Douglas raises two related contentions attacking the validity of the jury's findings that Douglas committed the section 266j and section 266h 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, within the meaning of section 186.22, subdivision (b). He argues that, apart from the expert's opinion, there was no evidence to support the findings he committed the underlying offenses for the benefit of the Edgemont Criminals gang. He asserts (1) the expert's opinion was improper and should be disregarded in assessing the sufficiency of the evidence, and (2) if any objection to the expert's opinion is deemed waived, his counsel was ineffective for not moving to exclude that opinion.
The Gang Enhancement
Section 186.22, subdivision (b), does not criminalize mere gang membership. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).) The prosecution's proof of Douglas's gang membership at the time of the offense cannot support the enhancement unless there is proof of both the first prong (the defendant committed the crime "for the benefit of . . . or in association with any criminal street gang") and the second prong (the defendant committed the crime with the specific intent to assist in any criminal conduct by gang members). (People v. Albillar (2010) 51 Cal.4th 47, 59, (Albillar).)As clarified by Albillar, although not every crime committed by gang members is related to a gang for purposes of the first prong, a crime can satisfy the first prong when it is committed in association with the gang, or when it is committed for the benefit of the gang. (Id. at p 60.) Evidence that gang members acted in concert can provide substantial evidence of the former (id. at pp. 60-63), and expert opinion is admissible as part of the evidentiary showing on how the crimes can benefit the gang (id. at pp. 63-64).
Albillar also explained that the second prong, which required the defendant commit the gang-related felony "with the specific intent to promote, further, or assist in any criminal conduct by gang members" (§ 186.22, subd. (b)(1)), need not encompass proof the defendant committed the crime with the specific intent to promote, further, or assist other criminal conduct by gang members. Instead, that subdivision encompasses the specific intent to promote, further, or assist in any criminal conduct by gang members—including the current offenses—and not merely other criminal conduct by gang members. (Albillar, supra, 51 Cal.4th at pp. 64-65.) The court rejected contrary federal interpretations of the statute (id. at pp. 65-66), and held that when "substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members" for purposes of the second prong. (Id. at p. 68.)
Propriety and Sufficiency of Expert Testimony
Douglas argues that, apart from the expert's opinion, there is no proof of either the first or second prong of the section 186.22, subdivision (b), enhancement, and under Frank S. and its progeny (see People v. Ramon (2009) 175 Cal.App.4th 843; People v. Ochoa (2009) 179 Cal.App.4th 650), the expert's opinion that Douglas's crime was for the benefit of the Edgemont Criminals gang for purposes of the section 186.22, subdivision (b)(1), enhancement cannot provide substantial evidence to support the jury's findings.
The Frank S. decision was rooted in that court's earlier decision in People v. Killebrew (2002) 103 Cal.App.4th 644, concerning the proper scope of, and limits on, expert testimony. The court in Killebrew had concluded that, although some subjects are properly matters on which an expert may express an opinion, a court cannot allow experts to express any opinion they may have about gangs and gang activities. (Id. at pp. 651, 654.) The defendant in Killebrew was one of several men arrested in connection with a drive-by shooting. He was not inside any of the three cars police suspected were involved, but was standing on a nearby corner when police stopped one of the cars. The discovery of a handgun at a nearby taco stand and in at least one of the cars formed the basis for Killebrew's prosecution for conspiring to possess a handgun. (Id. at pp. 647-649.) The court reversed his conviction on appeal. (Id. at p. 647.) The error identified in Killebrew was that "in response to hypothetical questions, the People's gang expert exceeded the permissible scope of expert testimony by opining on 'the subjective knowledge and intent of each' of the gang members involved in the crime." (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550-1551.) The expert testified that each of the individuals in a caravan of three cars knew there were guns in two of the cars and jointly possessed the guns with everyone else in the three cars for mutual protection. (Id. at p. 1551.) However, "Killebrew does not preclude the prosecution from eliciting expert testimony to provide the jury with information from which the jury may infer the motive for a crime or the perpetrator's intent; Killebrew prohibits an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial." (Ibid.)
Cases that have examined Killebrew's limitations on expert opinions have largely been limited to intermediate appellate court opinions. In Frank S., an officer detained the minor for a traffic infraction and discovered a knife, a bindle of methamphetamine, and a red bandanna on the minor. The minor was charged with carrying a concealed dirk, and with a corresponding gang enhancement, as well as other charges. (Frank S., supra, 141 Cal.App.4th at p. 1195.) The prosecution's gang expert testified the minor was a gang member and that the substantive offense was committed to benefit his gang because "a gang member would use the knife for protection from rival gang members and to assault rival gangs." (Ibid.) The Frank S. court reversed the enhancement true finding, stating that "nothing besides weak inferences and hypotheticals show the minor had a gang-related purpose for the knife." (Id. at p. 1199.) The court explained:
It appears the Supreme Court's examination of the Killebrew issues has been limited. In one case, People v. Ward (2005) 36 Cal.4th 186, 210, the Supreme Court appears only to have noted that the expert opinions at issue fell within the gang culture and habit evidence approved in People v. Gardeley (1996) 14 Cal.4th 605. In a second case, People v. Gonzalez (2006) 38 Cal.4th 932, the Supreme Court again distinguished the circumstances of the case, and rejected the defendant's claim of Killebrew error in the guilt phase by noting the challenged testimony was "quite typical of the kind of expert testimony regarding gang culture and psychology that a court has discretion to admit." (Gonzalez, at p. 945.) "[W]ithout deciding" whether Killebrew was correct "in this respect," the Gonzalez court read the case as "merely 'prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.' " (Gonzalez, at p. 946.) The Supreme Court attempted to clarify its comments in dicta included in a footnote: "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 through the use of hypothetical questions regarding hypothetical persons." (Id. at p. 946, fn. 3.)
"[U]nlike in other cases, the prosecution presented no evidence other than the expert's opinion regarding gangs in general and the expert's improper opinion on the ultimate issue to establish that possession of the weapon was 'committed for the benefit of, at the direction of, or in association with any criminal street gang . . . .' [Citation.] The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor's statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor's specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended." (Ibid.)
Thus, Frank S. concluded something more than an expert witness's unsubstantiated opinion that a crime was committed for the benefit of, at the direction of, or in association with a criminal street gang is required to provide evidentiary support for a true finding on a gang enhancement. (Accord, People v. Ferraez (2003) 112 Cal.App.4th 925, 931.)
In People v. Ramon, supra, 175 Cal.App.4th 843, the court again concluded the evidence on the specific intent prong of gang enhancement findings was insufficient. In Ramon, police stopped the defendant (a conceded gang member) while he was driving a stolen vehicle within his gang's territory with a fellow gang member in the passenger seat, and found a loaded, unregistered firearm under the driver's seat. (Id. at pp. 846-848.) The People charged the defendant with receiving a stolen vehicle, possession of a firearm by a felon, possession of a firearm while an active gang member, and carrying a loaded firearm in public for which he was not a registered owner, as well as corresponding gang enhancements. (Id. at p. 848.) At trial, an expert witness testified one of the gang's primary activities was car theft, and that by driving a stolen vehicle and bearing an unregistered firearm within his gang's territory, the defendant could conduct numerous crimes and simply dump the vehicle and gun thereafter, and both the car and the weapon could be used to spread fear and intimidation within the gang's territory. (Id. at pp. 848-849.) In response to a hypothetical mirroring the facts of the case, the expert concluded the defendant's crimes would benefit his gang, and the jury convicted the defendant of all the substantive counts and found true three of the four gang enhancement allegations. (Ibid.)
The Ramon court vacated the gang enhancements, concluding the only evidence supporting an inference that the defendant committed the instant crimes with the specific intent to promote, further, or assist criminal conduct by gang members was the witness's impermissible speculation, stating "[t]he People's expert simply informed the jury of how he felt the case should be resolved. This was an improper opinion and could not provide substantial evidence to support the jury's finding. There were no facts from which the expert could discern whether [the defendant and his compatriot] were acting on their own behalf the night they were arrested or were acting on behalf of [their gang]." (People v. Ramon, supra, 175 Cal.App.4th at p. 851.) Thus, Ramon followed Frank S. by requiring that some substantive factual evidentiary basis, apart from an expert witness's opinion, support the requisite elements of the gang enhancement. (Accord, People v. Ochoa, supra, 179 Cal.App.4th at p. 657 ["A gang expert's testimony alone is insufficient to find an offense gang related. [Citation.] '[T]he record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.' "].)
We distill from these cases the principle that reversal is required when the gang expert's testimony was the only evidence offered by the prosecution to establish the elements of the gang enhancement and there is no other evidence from which a reasonable jury could infer intent. "To allow the expert to state the minor's specific intent . . . without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended." (Frank S., supra, 141 Cal.App.4th at p. 1199.) However, reversal is not required in cases where there is other evidence, apart from and in addition to the expert's opinion, to support an inference the alleged crime was committed for the benefit of or in association with the gang and was done so with the requisite intent. For example, in People v. Ferraez, supra, 112 Cal.App.4th 925, the defendant was arrested for possession for sale of rock cocaine and was charged with the drug offense, a gang enhancement appended to that offense, and a section 186.22, subdivision (a), count based on that drug offense. (Ferraez, at pp. 927-928.) The expert testified the sale promoted, assisted or furthered the criminal conduct of the gang, and benefitted the gang, by raising funds that could be use to assist other gang members or to purchase weapons for the gang. The defendant claimed he was selling the drugs for personal reasons and had been given permission to sell within the gang territory. (Id. at pp. 928-929.) Upholding the sufficiency of the evidence, the court concluded that "[u]ndoubtedly, the expert's testimony alone would not have been sufficient to find the drug offense was gang related. But here it was coupled with other evidence from which the jury could reasonably infer the crime was gang related." (Id. at p. 931.)
Analysis
Our evaluation of the sufficiency of the evidence to support the jury's findings on the section 186.22, subdivision (b), allegations requires separate treatment of the counts involving the Las Vegas offenses and those involving the Southern California offenses.
On the Las Vegas counts, even if the expert's testimony on how Douglas's procuring and pimping crimes could have been "for the benefit" of Douglas's gang was not sufficient, there is nevertheless substantial evidence to support the enhancements because the evidence showed Douglas committed those offenses in association with a fellow gang member. Douglas, whose tattoos broadcast his gang allegiance, was accompanied and aided by fellow gang member Lancaster in transporting, housing, and facilitating the activities that formed the basis for the underlying Las Vegas offenses. Under Albillar, evidence that gang members acted in concert can provide substantial evidence the crime satisfies the first prong as having been committed in association with the gang (Albillar, supra, 51 Cal.4th at pp. 60-63), and Albillar further teaches that when "substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members" for purposes of the second prong. (Id. at p. 68.) We conclude, under Albillar, there is substantial evidence to support the section 186.22, subdivision (b), findings as to the Las Vegas offenses.
We are not satisfied, however, that substantial evidence supports the gang enhancements as to the Southern California offenses. There was no evidence the persons who accompanied Douglas and A. to Los Angeles or Ontario were members or associates of the Edgemont Criminals gang. Accordingly, we must determine if the gang expert's testimony was the only evidence offered by the prosecution to establish the elements of the enhancement, or whether there is other some additional evidence from which a reasonable jury could infer intent.
Our review of the record convinces us that the only evidence supporting the enhancement was the expert's testimony of how Douglas's Southern California procurement offenses could have benefitted the Edgemont Criminals gang. Douglas was not accompanied by fellow gang members, and he did not commit the crimes in an area in which he could operate under the umbrella of his gang's protection. There was no evidence Douglas touted his Southern California activities either to garner additional respect within the gang or to intimidate the community in which his gang operated. There was no evidence he promoted A's prostitution activities in Southern California by employing gang signs, clothing or words to show A. was acting under the auspices of Douglas's gang. There was also no evidence he induced A. to cooperate in the Southern California crimes through gang threats or inducements, or that any of the proceeds of those crimes were shared with other Edgemont Criminals members.
The only evidence supporting the gang enhancements as to the Southern California crimes was the expert's opinion. The expert testified the Southern California crimes increased Douglas's sophistication on how to conduct prostitution activities, which could be for the benefit of the gang by enabling the gang to learn how to conduct prostitution without detection by police. However, there was no evidence any gang members ever conveyed this type of information to other gang members, much less that Douglas obtained this increased sophistication for any purpose other than to personally benefit his own ability to reap the benefits of A's prostitution. The expert also testified the crimes were for the benefit of the gang because the proceeds fueled Douglas's lifestyle as a gang member. However, all profit-driven crimes will "fuel" the lifestyle of the criminal actor and, without more, such a de minimus evidentiary showing would improperly criminalize mere gang membership. (Frank S., supra, 141 Cal.App.4th at p. 1196.)
The expert testified that conducting the crimes outside of the "turf" controlled by the Edgemont Criminals could collaterally benefit Douglas's gang by expanding the opportunity to "network" with gangs from other areas and to expand the gang's influence. However, there was no evidence Douglas sought to network with members of other gangs. Moreover, this argument approaches sophistry because all locales would be chosen for the benefit of the gang: when the locale of the crime was within gang territory it would benefit the gang by increasing its control over and profile within its territory, and when the locale of the crime was outside of its territory it would benefit the gang by providing networking opportunities.
We conclude the only evidence supporting the gang enhancements as to the Southern California crimes is the opinion of the expert, and the only "other evidence" on what motivated these crimes—whether Douglas pimped A. to benefit his gang rather than for the more pedestrian reason of personally benefitting from the proceeds of her prostitution—was at most in equipoise. Thus, there is no evidence Douglas was not "on a frolic and detour unrelated to the gang" (People v. Morales (2003) 112 Cal.App.4th 1176, 1198) when he took A. to Los Angeles and Ontario to engage in prostitution, and indeed, "in the final analysis, the only evidence to support the . . . motive is the fact of [Douglas's] gang affiliation." (People v. Albarran (2007) 149 Cal.App.4th 214, 227.) We conclude there is no evidence (apart from the gang expert's opinion) from which the jury could have found that Douglas's Los Angeles and Ontario crimes were done for the benefit of, and with the specific intent to benefit, the Edgemont Criminals gang, within the meaning of the section 186.22, subdivision (b)(1), enhancement. We reverse the true finding on the enhancements appended to counts 12 through 14, and retrial is barred. (People v. Hatch, supra, 22 Cal.4th at p. 271.)
DISPOSITION
The conviction on count 11, and the true findings on the enhancements appended to counts 12 through 14, are reversed. In all other respects the judgment of convictions is affirmed. The matter is remanded to the trial court for resentencing.
McDONALD, Acting P. J. WE CONCUR:
McINTYRE, J.
IRION, J.