Opinion
F065288 F065481 F065984
11-21-2017
THE PEOPLE, Plaintiff and Respondent, v. RAMIRO ENRIQUEZ, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. GABRIEL RAMOS, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. RENE GUTIERREZ, JR., Defendant and Appellant.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant Ramiro Enriquez. Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel Ramos. Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant Rene Gutierrez, Jr. Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF137853B)
OPINION
(Super. Ct. No. BF137853A) (Super. Ct. No. BF137853C) APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant Ramiro Enriquez. Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel Ramos. Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant Rene Gutierrez, Jr. Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Ramiro Enriquez, Rene Gutierrez, Jr., and Gabriel Ramos were jointly tried and convicted of active participation in a criminal street gang under Penal Code section 186.22, subdivision (a). Enriquez and Gutierrez were also convicted of attempted murder and assault with a firearm, and those crimes were found to be gang related within the meaning of section 186.22, subdivision (b). In a prior opinion, we affirmed the judgments of conviction in full. (People v. Enriquez (Jan. 30, 2015, F065288, F065481, F065984) [nonpub. opn.] (Enriquez).) The matter returns to us following a reversal by the California Supreme Court for structural error, namely, the erroneous denial of a "Batson/Wheeler motion." (People v. Gutierrez (2017) 2 Cal.5th 1150, 1154.) The high court's disposition states: "We reverse the judgment of the Court of Appeal and remand for further proceedings consistent with this opinion." (Id. at p. 1175.)
All further statutory references are to the Penal Code.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
The original appeal presented other claims unrelated to the Batson/Wheeler issue, including challenges to the sufficiency of the evidence, which we rejected. The California Supreme Court accepted the case for review on a grant-and-hold basis pending its decisions in People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde) and People v. Prunty (2015) 62 Cal.4th 59 (Prunty). After the opinions in Elizalde and Prunty became final, the high court ordered further briefing on the question of Batson/Wheeler error. The judgments were ultimately reversed on Batson/Wheeler grounds, and appellants' evidentiary arguments were never addressed.
The holdings of Elizalde and Prunty constitute significant intervening developments in the law governing the prosecution of gang crimes. In Elizalde, it was held that acknowledgments of gang membership made during jail intake interviews are generally inadmissible in a criminal prosecution unless the defendant was advised of, and waived, his or her rights under Miranda v. Arizona (1966) 384 U.S. 436. (Elizalde, supra, 61 Cal.4th at p. 527.) The Prunty opinion resolved a sufficiency of the evidence issue: "[W]here the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Prunty, supra, 62 Cal.4th at p. 71.)
Since the judgments have been reversed and the cause is being remanded for further proceedings, we need only address the question of retrial. "[W]here the evidence offered by the State and admitted by the trial court—whether erroneously or not—would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial." (Lockhart v. Nelson (1988) 488 U.S. 33, 34; accord, People v. Story (2009) 45 Cal.4th 1282, 1296-1297.) Any occurrence of Elizalde error in the first trial is an issue that relates to the admissibility of evidence and thus does not implicate double jeopardy principles. The existence of Prunty error, however, would preclude retrial of the substantive gang charges and enhancement allegations. We have reexamined the gang evidence in light of Prunty and, for the reasons that follow, again conclude it was sufficient to support the verdicts in the first trial. Therefore, the district attorney may elect to retry all of the reversed counts and enhancements.
STATEMENT OF THE CASE
We incorporate by reference the factual and procedural background set forth in our prior opinion, Enriquez, which is partially repeated and supplemented here to frame the issues for decision. --------
Appellants were charged by information with attempted premeditated murder (§§ 187, 189, 664, subd. (a); count 1); assault with a firearm (§ 245, subd. (a)(2); count 2) and active participation in a criminal street gang (count 3). Counts 1 and 2 included gang and firearm-related enhancement allegations. Appellants were also subject to recidivism enhancements for having been convicted of prior felony offenses and, as to Gutierrez and Ramos, having served prior prison terms.
The underlying incident occurred in Bakersfield on July 30, 2011, shortly after midnight. Appellants had spent the evening at a motel with a group of people that included a prosecution witness named Gabriel Trevino. The group's activities that night centered around the use of methamphetamine. At one point, appellant Ramos had a conversation in the motel parking lot with the victim in this case, Clarence Langston.
There are conflicting accounts of what transpired between Ramos and Langston. In the version most favorable to the prosecution, Langston angrily confronted Ramos about the particulars of a drug deal between him (Langston) and an unidentified third party. Trevino stood near Ramos while he and Langston talked, and appellants Enriquez and Gutierrez watched from a nearby balcony. Offended by Langston's behavior, Ramos turned to one of his companions and said, "Get the cuete." Langston understood the word "cuete" to mean gun or firearm, and he promptly departed.
As Langston was leaving, Ramos yelled out to Enriquez and Gutierrez something to the effect of, "Homies, Southside." Trevino, a self-admitted gang member, testified that use of the word Southside in this context was gang jargon, essentially a "war call." Enriquez and Gutierrez "obeyed the command" by coming down to the parking lot. Ramos conferred with them before leaving on foot, allegedly to retrieve a firearm. Meanwhile, Trevino enlisted the help of Kyle Fuller, who had driven Enriquez and Gutierrez to the motel that evening.
Enriquez, Gutierrez, and Trevino got into Fuller's vehicle and, with Fuller behind the wheel, drove out of the parking lot in search of Langston. A short while later, Enriquez spotted Langston and said, "Look, there he is. There he is." Gutierrez told Fuller to stop driving, and Fuller complied. Next, Gutierrez exited the vehicle with a shotgun in his hands and fired multiple rounds of birdshot at Langston, who sustained nonlethal injuries. Trevino later assisted Gutierrez in disposing of the weapon. Back at the motel, Ramos spoke to other people who had witnessed his confrontation with Langston about "getting their stories straight."
In his trial testimony, Trevino described himself as a 20-year gang member. He claimed membership in both the "Surenos" and "Varrio Wasco Rifa," the latter being a Sureno "subset" or "clique" based in the City of Wasco. When asked if there was a relationship between his subset and the Surenos, he answered, "Yes, there is. ... [Surenos is] the organization that we pertain to." Whereas the subset's territory is limited to Wasco, the Surenos have control over "[a]nything that's south, basically Central California."
Trevino used the term "Sureno" in varying contexts. In some instances, he acknowledged the existence of a Sureno organization. At other times, however, he suggested that Sureno is a title indicative of a certain rank or status. When asked to explain "the structure of the Surenos," he responded as follows: "As you put in work [i.e., commit crimes for the benefit of a gang], you get a juice card. Juice card meaning authority by the higher ups in the southern organization. As you're blessed with this juice card, so to say, you start dictating things either in prison[--] They give [you] status as a leader. You can either dictate programs pertaining to the southerners in prison or if you're on the streets, pertaining to that particular individual gang or the southerners in jail."
Trevino further explained that the hierarchy of the "southern organization" includes the Mexican Mafia, which consists of individuals who "keep everything organized as far as criminal street warfare, organizing things." When questioned about the relationship between the Mexican Mafia and the Surenos, he replied, "They're one." Yet in other testimony, Trevino said the Mexican Mafia has authority over the Surenos and the Surenos, in turn, have authority over the "South Siders." For example: "[A] Sureno is usually considered a soldier. We talked about ... having the so-called juice card so as you reach that status and you become a leader in the organization, the Surenos and the South Siders, they're foot soldiers. ... If you have a pro team, for instance, the Bakersfield Blaze would be a South Side. They're the minors as opposed to the LA Dodgers would be a pro team. They would be the Surenos. ... When you initiate a gang, you're automatically representing [as] a southern gang member. So you're considered a South Sider. You don't - nobody goes into a gang being a Sureno. It doesn't happen. You have to earn that."
With regard to the defendants, Trevino testified that he had known Gutierrez and Enriquez for approximately 15 years and 1.5 years, respectively, and that both belonged to a subset called "Varrio West Side Shafter." He had known Ramos for approximately eight years and knew him to be part of the "Varrio Bakers" subset. Trevino responded affirmatively when asked if Varrio West Side Shafter and Varrio Bakers are "part of the Surenos."
Officer Travis Harless of the Bakersfield Police Department testified as the People's gang expert. He opined that Ramos was "a Sureno gang member ... specifically from the Varrio Bakers subset." The opinion was based on evidence that included Ramos's gang-related tattoos, prior admissions of gang membership, past associations with known gang members, his involvement in the charged offenses, and the testimony of Trevino. The expert similarly opined that Enriquez and Gutierrez were "member[s] of the Surenos ... from the Varrio Westside Shafter subset." The opinions regarding Enriquez and Gutierrez were also based on their gang-related tattoos, prior admissions of gang membership, past associations with known gang members, involvement in the charged offenses, and the testimony of Trevino.
The People's theory of the case was that the gang in which Enriquez, Gutierrez, and Ramos had actively participated was the Surenos, not their respective subsets. Likewise, counts 1 and 2 were allegedly committed in association with, and/or for the benefit of, the Surenos. The theory was made clear in the People's rebuttal argument: "They may be different subsets, but they are the same gang."
Officer Harless's testimony was tailored to the theory of an overarching Sureno entity: "Surenos encompasses Southern California. It varies by region, but basically south of Delano...." Kern County has numerous subsets, including Varrio Bakers and Varrio Westside Shafter, all of which "are Sureno gangs. ... On the street, sometimes some of those sets have rivalries amongst each other and have alliances amongst each other, but that doesn't exist in the custody of -- in a custody setting. They all fall under the Sureno umbrella and they all fall under the influence of the Mexican Mafia[,] which is also referred to as La eMe."
The expert's testimony regarding the Mexican Mafia was generally consistent with that of Trevino: "[E]very Sureno gang and gang member is essentially like a solider to the general[,] [which] would be the La eMe. The La eMe is the governing body of only a few hundred estimated members that controls tens of thousands of gang members in Southern California. All Surenos follow the orders of the La eMe.... You will see the significance of specific references to the La eMe [in their tattoos], specifically the [number] 13 that they identify as [one, three] or X3 or XII[I], Roman numeral, which ... represents the 13th letter of the alphabet which is the M for Mexican Mafia or La eMe. ... Surenos identify with blue, and the rivals, the Nortenos they identify with the color red."
To establish the "primary activities" element of section 186.22, Officer Harless testified as follows: "The Surenos commit murders, assaults, such as stabbings, shootings, carjacking, auto theft, burglary. They sell narcotics. Basically they - they hurt people. They steal things and they sell drugs." To establish the statutorily required "pattern of criminal gang activity" (§ 186.22, subd. (a), (f)), the expert relayed information about four prior incidents involving alleged Sureno gang members from the Varrio Bakers subset that resulted in felony convictions of assault with a firearm, carjacking, and possession of narcotics for sale, among others. In addition to these four "predicate offenses" (see Discussion, post), the prosecutor relied on evidence of the currently charged crimes, arguing, "This case actually self-predicates...."
The jury found Enriquez and Gutierrez guilty as charged and returned true findings on the enhancement allegations. As to Ramos, the jury hung on counts 1 and 2, resulting in a mistrial on those charges, and convicted him of active participation in a criminal street gang as alleged in count 3. In exchange for the dismissal of counts 1 and 2, Ramos subsequently pleaded no contest to an added charge of making criminal threats (§ 422; count 4).
DISCUSSION
Standard of Review
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Edwards (2013) 57 Cal.4th 658, 715.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) The jury's findings on enhancement allegations are reviewed under the same standard. (See People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
Law and Analysis
Section 186.22 proscribes the substantive offense of active participation in a criminal street gang, as set forth in subdivision (a), and includes enhancement provisions, which are found in subdivision (b). (Elizalde, supra, 61 Cal.4th at pp. 538-539.) The elements of the substantive offense are: "First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).) The enhancement provisions apply when an offense is 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." (§ 186.22, subd. (b).) "Unlike the substantive offense, the enhancement does not require proof of participation in a gang. It is further distinguished from the substantive offense by applying only to gang-related offenses and by requiring the defendant to act with the specific intent to promote, further, or assist any criminal conduct by gang members." (Rodriguez, supra, 55 Cal.4th at p. 1130, fn. 5.)
The provisions of section 186.22 naturally require proof of the existence of a "criminal street gang." (People v. Vasquez (2016) 247 Cal.App.4th 909, 922; see Prunty, supra, 62 Cal.4th at p. 72, fn. 3.) The statute defines this term as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).)
"The phrase 'primary activities,' ... implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members. ... [¶] Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony ...." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324 (Sengpadychith), italics omitted.) In practice, the required showing is easily made. The prosecutor typically asks a gang expert about the activities of a particular gang, and the expert, relying on his or her training and experience, attests to knowing that the gang's primary activities include the commission of one or more offenses listed in section 186.22, subdivision (e). (See People v. Nguyen (2015) 61 Cal.4th 1015, 1068 (Nguyen); Sengpadychith, supra, 26 Cal.4th at p. 324.)
"A gang engages in a 'pattern of criminal gang activity' when its members participate in 'two or more' statutorily enumerated criminal offenses (the so-called 'predicate offenses') that are committed within a certain time frame and 'on separate occasions, or by two or more persons.' " (People v. Zermeno (1999) 21 Cal.4th 927, 930.) Prosecutors may rely on evidence of the defendant's commission of a currently charged offense to satisfy this requirement. (People v. Loeun (1997) 17 Cal.4th 1, 10; accord, People v. Tran (2011) 51 Cal.4th 1040, 1046.) It is enough to show that a predicate crime was committed; a conviction is unnecessary. (People v. Garcia (2014) 224 Cal.App.4th 519, 524.)
In Prunty, supra, the California Supreme Court addressed the issue of "what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets." (62 Cal.4th at p. 67.) The defendant in that case self-identified as a " 'Northerner,' or a Norteno gang member, and described his membership in the Detroit Boulevard Norteno 'set.' " (Id. at p. 68.) The prosecution's theory for a section 186.22 enhancement was that the defendant had acted to benefit a larger Norteno gang entity comprised of multiple "subsets." (Id. at pp. 67-69.) To establish the existence of this "umbrella" organization, a gang expert testified to a pattern of criminal activity by members of different Norteno subsets in the Sacramento area. However, "[b]esides [the expert's] testimony that these gang subsets referred to themselves as Nortenos, the prosecution did not introduce specific evidence showing these subsets identified with a larger Norteno group. Nor did [the expert] testify that the Norteno subsets that committed the predicate offenses shared a connection with each other, or with any other Norteno-identified subset." (Id. at p. 69.) Consequently, the gang enhancement was reversed for insufficient evidence.
"[W]here the prosecution's case positing the existence of a single 'criminal street gang' ... turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets. ... [¶] Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same 'group' that meets the definition of section 186.22(f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities—and that the defendant sought to benefit under section 186.22(b). But it is not enough ... that the group simply shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets' conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group." (Prunty, supra, 62 Cal.4th at pp. 71-72, fn. omitted, italics added.)
The matter before us is factually distinguishable from Prunty. In that case, the prosecutor relied on predicate offenses committed by members of the "Varrio Gardenland" and "Varrio Centro" Norteno subsets, yet defendant Zackery Prunty claimed membership in the "Detroit Boulevard" subset. (Prunty, supra, 62 Cal.4th at pp. 67-69.) There was no evidence of a connection between the subsets involved in the predicate offenses—either to each other or to the defendant's subset. (Id. at pp. 69, 81-83) Here, there were a total of six predicate offenses to consider (the four incidents summarized by Officer Harless and the currently charged offenses of attempted murder and assault with a firearm), all involving members of Ramos's subset (Varrio Bakers) and/or members of the subset claimed by Enriquez and Gutierrez (Varrio Westside Shafter).
Our analysis of whether the record demonstrates the required connection between appellants' subsets is guided by the following observations in Prunty. "Evidence—even indirect evidence—showing collaboration among subset members, long-term relationships among members of different subsets, use of the same 'turf,' behavior demonstrating a shared identity with one another or with a larger organization, and similar proof will show that individual subsets are part of a larger group ...." (Prunty, supra, 62 Cal.4th at pp. 73-74.) "For instance, the evidence may show that members of different subsets have 'work[ed] in concert to commit a crime' [citation] or that members have strategized, formally or informally, to carry out their activities." (Id. at p. 78, fn. omitted.) "Even evidence of more informal associations, such as proof that members of two gang subsets 'hang out together' and 'back up each other,' can help demonstrate that the subsets' members have exchanged strategic information or otherwise taken part in the kinds of common activities that imply the existence of a genuinely shared venture." (Ibid.) "In general, evidence that shows subset members have communicated, worked together, or share a relationship (however formal or informal) will permit the jury to infer that the subsets should be treated as a single street gang." (Id. at pp. 78-79.)
Trevino testified that members of different subsets sometimes "team up with [each other] to commit crimes for the southern organization." Officer Harless testified to his knowledge of "trends with the Varrio Westside Shafter and Varrio Bakers coming together and committing crimes ...." These assertions were borne out by the trial evidence, not only with regard to the assault and attempted murder of Langston but also in the subsets' use of the same turf for other criminal behavior.
The motel where the initial confrontation with Langston occurred was portrayed in witness testimony as a hub of illegal drug activity. One of the predicate crimes described by the gang expert involved a drug offense committed at that address in May 2010. According to Officer Harless, the motel was located "about dead center in the middle of [Varrio Bakers] territory," i.e., the home turf of Ramos's subset. However, the territory was controlled by the larger Sureno entity: "[That motel,] as far as Hispanic gang crime is concerned is controlled primarily by the Varrio Bakers, but by the Surenos." Trevino, a member of the Varrio Wasco Rifa subset, was a drug dealer who had sold narcotics there on several occasions. Enriquez and Gutierrez, members of the Varrio Westside Shafter subset, were shown to be involved in drug activity at the same location.
On the night of the incident, Trevino was summoned to the motel by Ramos. Following his arrival, Trevino received a phone call from Enriquez, who informed him that he, too, was on his way to the motel. There was some tension between Trevino and Enriquez because Trevino had recently failed to uphold his end of a drug deal. Trevino explained: "[H]e gave me some money and the transaction was lagging on my part. He thought I was going to get over on him." When Enriquez and Gutierrez got to the motel, Gutierrez pulled Trevino aside for a private conversation. In Trevino's words, Gutierrez was "kind of being the mediator between" him and Enriquez.
The victim, Langston, was not affiliated with any of the subsets we have discussed. He admitted to being a former member of a predominately African-American gang known as the Country Boys. When Enriquez and Gutierrez were preparing to go after Langston, Enriquez asked Trevino get into the car with them. Despite their recent problems, and even though they were from different subsets, Trevino obliged the request. When asked why, he testified: "Just kind of the code, you know, kind of back each other up in a situation like that. You know, if we figure there might be an altercation with other black gang members, you don't want to be outnumbered." Enriquez and Gutierrez were backing up Ramos, who also belonged to a different subset. This evidence permits a reasonable inference that the parties involved were collectively defending Sureno turf and, in doing so, exhibiting "behavior showing their self-identification with a larger group." (Prunty, supra, 62 Cal.4th at p. 71.) The same is true of Ramos's rallying Sureno "war call" that started the events in motion.
Officer Harless testified that Enriquez, Gutierriez, and Ramos had tattoos representative of their subsets as well as "specific Sureno tattoos," which further implies that they identified with a larger Sureno group. More importantly, the evidence of an umbrella gang went beyond the mere existence of a common name and/or identifying signs and symbols. (See Prunty, supra, 62 Cal.4th at p. 76.) Trevino and the gang expert testified to the existence of an organizational hierarchy with at least some semblance of a chain of command and code of conduct. Although he was testifying against members of other subsets, Trevino confirmed on cross-examination that he faced retribution from the larger organization. He offered an analogy: "The organization is like a god. If you have religion[,] if you believe in God, you can sin against God. The organization has sins. If you sin against him, there is repercussions to follow."
To reiterate, the prosecution's evidence in Prunty "fell short ... with respect to the predicate offenses. ... None of [the expert's] testimony indicated that any of the alleged subsets had shared information, defended the same turf, had members commonly present in the same vicinity, or otherwise behaved in a manner that permitted the inference of an associational or organizational connection among the subsets." (62 Cal.4th at p. 82.) The trial evidence in this case touched upon all of these factors. "The key is for the prosecution to present evidence supporting a fact finder's reasonable conclusion that multiple subsets are acting as a single 'organization, association, or group.' " (Id. at p. 80.) Considered as a whole and viewed in the light most favorable to the People, the record contains sufficient evidence to support a finding that the subsets to which Enriquez, Gutierrez, and Ramos belonged were part of the same criminal street gang.
In supplemental briefing, Gutierrez and Ramos point out that Trevino's testimony drew a distinction between Surenos and South Siders. Relying on that distinction, they argue that South Siders are not necessarily Sureno gang members, and there was no showing that the people who committed the predicate offenses were actually Surenos. We are not persuaded. The jury could have reasonably inferred that the alleged Sureno umbrella gang described by Officer Harless and the "southern organization" referenced in Trevino's testimony were one and the same. In terms of the hierarchy, the expert said that "Mexican Mafia members are Surenos. They are just upper level leadership." He made a passing remark that "all Surenos are Southsiders," but never suggested that someone who is a Southsider (or South Sider) might not be part of the overarching Sureno gang. We note this additional explanation by Trevino: "South Side and Surenos are two different things but in the whole, you're still representing the south ...." Insofar as portions of Trevino's testimony were in conflict with that of Officer Harless, the jury was free to disbelieve the former and accept the latter. (See People v. Maury (2003) 30 Cal.4th 342, 403 ["Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends."]; People v. Langley (1974) 41 Cal.App.3d 339, 348 ["[T]he trier of fact may reject a part of the testimony of a witness while believing other portions of his testimony."].)
Gutierrez and Ramos further contend that the testimony regarding the primary activities of the Surenos was insufficient. They reason that for a gang the size of Officer Harless's estimates, which exceeded 10,000 members, an expert "would have to quantify the number of crimes committed by gang members in proportion to its overall membership before the jury could conclude that gang-related criminal activity was a chief or principal occupation." Again, we are unconvinced. The statistical proof appellants desire would fall into the first of two permissible categories identified in Sengpadychith, supra, i.e., "evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute." (26 Cal.4th at p. 324.) The very next sentence of the opinion states, "Also sufficient might be expert testimony ...." (Ibid.) Recent case law indicates that the type of generalized testimony given by Officer Harless suffices to establish the primary activities element. (See, e.g., Nguyen, supra, 61 Cal.4th at p. 1068 [gang expert's testimony that certain crimes enumerated in § 186.22, subd. (e) were among a particular gang's primary activities constituted sufficient evidence]; Prunty, supra, 62 Cal.4th at p. 82 [gang expert's testimony "that 'the Nortenos' in the area engage in various criminal practices, including homicide, assault, and firearms offenses" was "likely sufficient"].)
Having determined the evidence was sufficient to allow Varrio Westside Shafter and Varrio Bakers to be viewed as part of the same criminal street gang, we turn to the remaining elements of the gang charges. With regard to section 186.22, subdivision (a), active participation can be proven by evidence of gang tattoos, self-admission of gang membership, contacts with a criminal street gang and/or its members, gang-related contacts with police, and being in the company of a known gang member while committing a charged offense. (See People v. Castenada (2000) 23 Cal.4th 743, 752-753; People v. Williams (2009) 170 Cal.App.4th 587, 626; People v. Garcia (2007) 153 Cal.App.4th 1499, 1511.) A defendant's knowledge that the gang's members engage in a pattern of criminal activity is often inferable from the same evidence that shows his or her active participation in the gang. (People v. Carr (2010) 190 Cal.App.4th 475, 489 and fn. 14.) The third element, which requires willful promotion, furtherance, or assistance in the commission of a felony by gang members, can be established by showing either the defendant's direct perpetration of the felony or actions that constitute aiding and abetting. (Rodriguez, supra, 55 Cal.4th at pp. 1132, 1135-1136; People v. Ngoun (2001) 88 Cal.App.4th 432, 435-437.)
Gutierrez alleges the evidence was "insufficient to show that [he] had knowledge of the predicate offenses that the People relied on to establish a pattern of criminal activity." This argument ignores the People's reliance on the charged crimes as predicate offenses. As mentioned, the prosecutor argued that "[t]his case actually self-predicates...." The jury was adequately instructed on that point: "If you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the group's primary activities was commission of that crime and whether a pattern of criminal activity has been proved." The evidence showed Gutierrez was the direct perpetrator of two qualifying felonies: attempted murder and assault with a firearm. (§ 186.22, subd. (e)(1), (3).) Therefore, his knowledge of those offenses was beyond dispute. As for the remaining elements of the substantive offense, we find no evidentiary deficiencies in the verdicts against Enriquez, Gutierrez, and/or Ramos.
The gang enhancement findings concern only Enriquez and Gutierrez. Officer Harless opined, in response to hypothetical questions intended to mirror the underlying facts, that the charged offenses were committed in association with, for the benefit of, and at the direction of, a criminal street gang. Jurors can rationally infer that a crime was committed "in association" with a criminal street gang within the meaning of section 186.22, subdivision (b) if the defendant committed the offense in concert with members of that gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) The evidence was plainly sufficient to establish that Enriquez and Gutierrez committed the offenses charged in counts 1 and 2 in association with each other and, therefore, in association with gang members. It is not necessary to address the alternative theories of liability.
Lastly, with regard to mens rea, "[t]here is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." (People v. Albillar (2010) 51 Cal.4th 47, 67.) The jury could have reasonably inferred Enriquez's intent to promote, further, or assist the criminal conduct of Gutierrez from his various acts of aiding and abetting, which included advising Gutierrez and the others of Langston's whereabouts immediately prior to the shooting. As the direct perpetrator, Gutierrez's conduct also permits the inference of an intent to promote or further criminal activity. (See People v. Hill (2006) 142 Cal.App.4th 770, 774 ["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. ... Therefore, defendant's own criminal [behavior may qualify] as the gang-related criminal activity."].)
DISPOSITION
The judgments are reversed and the matter is remanded to the trial court for further proceedings. The People may elect to retry the defendants within the time period specified in Penal Code section 1382.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
LEVY, J.