Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. VA093251, Thomas I. McKnew, Jr., Judge.
Marcia R. Clark, 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, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
A jury convicted appellant Thomas Esparza of one count of first degree robbery (Pen. Code, § 211). The jury found true the allegations that a principal was armed with a firearm (§ 12022, subd. (a)(1)), that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), and that the crime was committed for the benefit of a street gang. (§ 186.22, subd. (b)(1)(C).) After finding that appellant had suffered a prior strike conviction (§§ 667, subds. (b) - (i), & 1170.12, subds. (a) - (d)) and a prior serious felony conviction (§ 667, subd. (a)(1)), and that he had served a prior prison term (§ 667.5, subd. (b)), the trial court sentenced appellant to a total term of 28 years in state prison.
All undesignated section references are to the Penal Code.
Defendant appeals, contending: (1) the evidence was insufficient to prove the gang enhancement; (2) the trial court erred by telling the jury the nature of defendant’s prior conviction; (3) the evidence was insufficient to establish that the Varrio Norwalk gang engaged in one or more of the enumerated felonies as a primary activity and therefore failed to prove it was a criminal street gang; (4) the court erred in imposing enhancements pursuant to both section 667.5, subdivision (b), and section 667, subdivision (a)(1), based on a single prior conviction; and (5) the imposition of the upper term violated his constitutional rights to due process and a jury trial.
We modify the judgment by striking the prior prison term enhancement (§ 667.5, subd. (b)) and otherwise affirm.
factual background
The Robbery
On October 16, 2005, Ahmad Karimolomi (referred to at trial as Olomi) was driving a taxi in the Lake Forest area of Irvine. Around 12:30 p.m., while stopped at a gas station, appellant and another man approached him and got into the taxi. The other man said they wanted a ride to Norwalk. Olomi told them the fare would be $60 to $70. The men agreed and gave him $100. Appellant was seated in the passenger side of the backseat. Olomi noticed that he had a box of Marlboro cigarettes. The other man sat in the front passenger seat.
The drive to Norwalk took 20 to 25 minutes. The men directed Olomi to Madris Avenue, described by Olomi as a small, side street. Appellant began demanding money from Olomi and punched him on the right side of his face. The other man pressed a gun to Olomi’s head at his temple. Both men demanded money. They told him to keep his hands on the steering wheel, and they searched his pockets. They removed his wallet from his rear pants pocket, and took his cell phone, ring, and all of his money. Appellant repeatedly ordered the other man to shoot Olomi. Olomi begged them not to shoot him. Olomi began driving again, but crashed the taxi into several parked cars. After he did so, appellant and the other man got out of the taxi and ran away with his possessions.
John Quintanilla and Joe Cing were inside a home on Madris Avenue, when they heard a collision outside. They went outside and saw a man (not appellant) running down the street. A neighbor yelled, “That’s him. Stop him.” Cing and Quintanilla followed the man. As they approached him, he turned and pulled out a gun. He pointed it at them and told them to back up. Quintanilla pulled Cing away and they hid behind a camper. They lost sight of the man.
The Identification and Fingerprint Evidence
Olomi selected appellant’s photograph from a six-pack photographic display prepared by the police. He was absolutely certain of his identification of appellant, and wrote on the photograph, “This is the man in the backseat of the car.” Olomi testified at appellant’s preliminary hearing, and also identified appellant at trial. He was positive of his identification at trial.
A public safety officer for the City of Norwalk obtained fingerprints from, among other things, a cigarette box found on the front passenger seat of the taxi. A forensic identification specialist from the Sheriff’s Department analyzed the fingerprints and concluded the fingerprints on the cigarette box were made by appellant.
The Gang Expert’s Testimony
Sergeant Robert Gray of the Sheriff’s Department, a gang expert assigned to the Norwalk station, was familiar with the Varrio Norwalk gang, whose territory included parts of Norwalk. According to Gray, the primary activities of the gang were committing murders, robberies, assaults with deadly weapons, selling narcotics, stealing cars, intimidating witnesses, and making criminal threats.
Varrio Norwalk has about 600 to 650 documented members. Gray testified that a self-admitted member of Varrio Norwalk, Javier Martinez, was convicted in January 2006 of possession of narcotics for sale. Another known, self-admitted member of Varrio Norwalk, Francisco Javier Romero, was convicted of taking a vehicle without the owner’s consent in April 2005.
Gray testified that appellant was a member of Varrio Norwalk with the moniker “Slick” or “Tom Slick.” Appellant has the word “Norwalk” tattooed on his stomach, and on his triceps are the words “One” and “Way,” referring to the “One Ways,” a group of Varrio Norwalk members from an area in Norwalk that has many one-way streets. Even though appellant lived in Compton at the time of the crime, his mother still lived in Norwalk and appellant hung out in Varrio Norwalk territory. Gray believed appellant was still a member of Varrio Norwalk. In August 2005, an incident occurred in which appellant was with another Varrio Norwalk gang member. Moreover, in October 2005, Gray encountered appellant and attempted to speak to him, but appellant ran away, successfully eluding Gray and his partner. Gray also noted that in the charged robbery, appellant asked to be driven from Irvine to Norwalk (the territory of Varrio Norwalk), rather than Compton where he lived.
Gray opined that the robbery in this case was committed for the benefit of the Varrio Norwalk gang. Robbery is one of the ways a gang earns money to buy guns. In addition, committing robberies intimidates people in the community, and creates fear in the neighborhood. Committing a robbery raises the status of that individual within the gang, and also can create fear in rival gang members if they know an individual is “out doing robberies.” A gang member who “puts a lot of work in” by doing robberies and shootings gains respect within the gang. Gang members often commit crimes with another gang member present so the other person can verify that a crime was committed. Gray testified that the location of the robbery was within the territory of the Varrio Norwalk gang, where there is a high concentration of gang members, although it was not in the “One Ways” area of Norwalk, which has an even higher concentration of gang members.
DISCUSSION
I. Sufficiency of the Evidence to Support the Gang Enhancement
Appellant contends there is insufficient evidence to support the jury finding on the gang enhancement. He asserts that Gray’s opinion was insufficient to prove the gang allegation because it was premised almost entirely on his general experience rather than evidence specific to this case. We disagree.
“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.)
A. Purpose to Promote Gang Activity
Subdivision (b) of section 186.22 provides enhanced punishment for certain gang-related crimes. “‘[T]o subject a defendant to the penal consequences of [a section 186.22, subdivision (b) enhancement], the prosecution must prove that the crime for which the defendant was convicted ha[s] been “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)(1) . . . .)’” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047; People v. Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley).)
Here, Sergeant Gray’s testimony sufficed to prove these elements of the gang enhancement. An expert may offer opinion testimony if the subject is sufficiently beyond common experience so that it would assist the trier of fact. (Evid. Code, § 801, subd. (a); People v. Ochoa (2001) 26 Cal.4th 398, 438; Gardeley, supra, 14 Cal.4th at p. 617; People v. Killebrew (2002) 103 Cal.App.4th 644, 651 (Killebrew).) Expert testimony “concerning the culture, habits, and psychology of gangs” meets this criterion. (People v. Valdez (1997) 58 Cal.App.4th 494, 506; see Gardeley, supra, 14 Cal.4th at p. 617.) A properly qualified gang expert may therefore, where appropriate, testify to a wide variety of matters, including whether and how a crime was committed to benefit or promote a gang; the motivation for a particular crime; a gang’s culture, habits, size, composition, existence, territory, and primary activities; a defendant’s gang membership; rivalries between gangs; and gang graffiti, tattoos, hand signs, and attire. (Killebrew, supra, 103 Cal.App.4th at pp. 656-657, and authorities cited therein; see also People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
Appellant contends that Gray’s opinion testimony was insufficient to prove the gang allegation because it was too general, and not based on the evidence specific to this case. According to appellant, the only factors specific to this case upon which Gray based his testimony were that appellant was a gang member, and that the crime was committed in an area claimed by the Varrio Norwalk gang as their territory. Appellant attempts to refute the gang-related significance imputed to the location of the robbery by asserting that “the choice of Norwalk over Compton finds a more directly logical explanation in the likelihood that appellant did not want to commit a crime where he lived and would be more easily recognized.” “[F]rom a purely practical standpoint, the location chosen was a dead end street that offered more isolation, less traffic and a better chance to control the situation.”
Of course, appellant’s argument amounts to no more that a reweighing of the evidence, which is improper on appeal. It was entirely reasonable for Gray to attach significance to the location of the robbery. Requiring the victim to drive the relatively long distance from Irvine to the territory of Varrio Norwalk – appellant’s gang -- was a uniquely defining fact. Gray reasonably surmised that appellant went out of his way to commit the crime in his gang’s territory rather than near his home because he was acting for the benefit of his gang. As he testified, the proceeds of the robbery could be used by the gang (most likely to buy guns), and the commission of the robbery would instill fear in the neighborhood and help appellant prove himself within the gang. Further, appellant’s “more directly logical explanation” that appellant would be more easily recognized in Compton as opposed to Norwalk is defeated by the record. Appellant had lived in Norwalk for a long time; his mother still lived there, and he continued to spend time there.
Appellant argues that in cases involving the gang enhancement allegation, the crime is often committed with other members of the same gang. Here, there was no evidence that appellant’s accomplice was a gang member. Therefore, according to appellant, the evidence merely supports the inference that he used an accomplice to avoid being overpowered.
Again, appellant improperly reweighs the evidence. Moreover, his citation of cases involving gang members acting in concert is unavailing. None of those cases holds that it is necessary to a true finding under section 186.22, subdivision (b)(1) that there be evidence establishing the involvement of more than one gang member. Further, Gray testified that gang members often commit crimes along with other gang members so they can vouch for one another that the crime was committed; he did not say that they always do so.
Appellant further argues that in many of the reported cases the assailants announced a gang affiliation in committing crimes not directed toward rival gang members. That did not occur here. Again, however, the cases relied upon by appellant do not stand for the proposition that announcement of gang affiliation is prerequisite to a true finding under section 186.22, subdivision (b)(1).
B. One or More Predicate Felonies
In addition to proving that the crime for which the defendant was convicted was “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)(1)) the prosecution must also prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a “pattern of criminal gang activity” by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so- called “predicate offenses”) during the statutorily defined period. (§ 186.22, subds. (e) & (f); People v. Hernandez, supra, 33 Cal.4th at p. 1047; People v. Loeun (1997) 17 Cal.4th 1, 4, 7-9; Gardeley, supra, 14 Cal.4th at pp. 616-617.)
Appellant contends that Gray testified in conclusory terms that Varrio Norwalk’s primary activities were murders, robberies, assaults with deadly weapons, sales of narcotics, vehicle theft, intimidation of witnesses and criminal threats. But, according to appellant, “he never backed up that statement with any facts, names or dates to demonstrate that the offenses were either sufficiently numerous or were committed in a continuous fashion to prove that they qualified as primary activities.” We disagree.
Expert testimony that a gang is known for committing one or more of the offenses listed in subdivision (e) of section 186.22 may be sufficient to establish the “primary activity” requirement in order to establish that a group is a criminal street gang. (Gardeley, supra, 14 Cal.4th at p. 620.) However, expert testimony based on weak, insubstantial evidence will not suffice. (People v. Perez (2004) 118 Cal.App.4th 151, 160.) The expert’s opinion cannot be based on nonspecific and conclusory hearsay. (In re Jose T. (1991) 230 Cal.App.3d 1455, 1462.)
Gray testified to his years of experience with “thousands of gang members on a daily basis” over the 16-year course of his career as a peace officer, including seven years on the gang unit. He testified to his familiarity with the Varrio Norwalk gang: during his time as an investigator with the sheriff’s department gang unit, he was assigned to the Norwalk station and handled several cases involving the gang. He had contacted many members of the gang over the years, and personally prepared field interview cards on numerous gang members. He was familiar with the gang’s boundaries, hand signals, number of members, and monikers. Gray was assigned to the Operation Safe Streets Bureau since October 2005. That unit investigated “the most active gangs” in the area, which included Varrio Norwalk.
The prosecutor also presented evidence of two specific predicate offenses to satisfy the pattern of criminal activity requirement of section 186.22, subdivision (e). Gray personally investigated the Javier Martinez case and one of his partners handled the Francisco Javier Romero case. The defendants in both cases were self-admitted members of the Varrio Norwalk gang.
“Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley, supra, 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. (See § 186.22, subd. (e)(4) & (8).) The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on ‘his personal investigations of hundreds of crimes committed by gang members,’ together with information from colleagues in his own police department and other law enforcement agencies. (Gardeley, supra, at p. 620.)” (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.)
Similar to the evidence found sufficient in Gardeley, in this case Gray testified that the gang of which appellant was a long-time member engaged in a variety of the statutorily enumerated felonies. His opinions were based on his personal conversations and his own investigations of numerous crimes, as well as information from his colleagues. In addition to his more general testimony as to the activities engaged in continuously by Varrio Norwalk, he also gave specific examples of enumerated felonies. We conclude that the evidence was sufficient to establish that the Varrio Norwalk gang engaged in the predicate felonies as required for imposition of the gang enhancement. (Cf. In re Alexander L. (2007) 149 Cal.App.4th 605 [evidence insufficient to support gang enhancement where deputy sheriff in gang unit testified that he knew the gang had been involved in certain crimes, but no specifics elicited as to circumstances of crimes or where, when, or how deputy had obtained his information].)
II. Disclosure of the Nature of Appellant’s Prior Conviction
Appellant contends that the trial court erred by informing the jury of the fact appellant had a prior conviction for assault with a firearm, and that the jury might have found the gang enhancement allegation untrue had they not known of the nature of the prior conviction. We disagree.
A. The Proceedings
During closing argument, defense counsel insinuated that appellant was no longer an active gang member because after 1996 he had only one contact with law enforcement, in August 2005. In truth, appellant was incarcerated from July 1999 to November 2003 after being convicted of assault with a firearm. Outside of the jury’s presence, the prosecutor asked to be allowed to reopen have the court take judicial notice that in 1999 appellant was sentenced to prison for five years. The trial court ruled that it would allow the prosecution to reopen the case to introduce evidence of the prior conviction, or it would give the parties the opportunity to enter into a stipulation. Defense counsel initially opted to stipulate that appellant had been in prison for a certain period of time, but reconsidered. After further discussion, the court ruled that it would take judicial notice of the court file pertaining to the earlier case for the purpose of establishing the dates of appellant’s incarceration. The court did not mention that it would inform the jury of the nature of the conviction. Defense counsel objected to the court taking judicial notice of the fact of conviction and the dates of appellant’s incarceration; however, on appeal appellant does not challenge the court’s ruling.
When the jury returned to the courtroom, the court stated that the crime for which appellant had been convicted “involved the crime of assault with a firearm on [a] person,” for which a five-year sentence was imposed, in July 1999. Defense counsel did not object at that time.
In rebuttal argument to the jury, the prosecutor briefly mentioned the fact of appellant’s five-year incarceration in reference to the lack of police contacts, but did not specify the crime involved. The trial court gave a limiting instruction, stating that the prior conviction was only to be considered for the purpose of showing that appellant “would have been unavailable in Norwalk or in the One Ways as he’s been identified because he was incarcerated. Do not consider anything else connected with that conviction in any manner whatsoever.”
In his motion for new trial, defense counsel argued that the evidence given to the jury about the type of crime involved in the prior conviction, and the fact he was in prison and used a gun, was prejudicial in connection with the gang allegation. Defense counsel stated that he understood the court’s ruling to be that the fact of appellant’s incarceration would be introduced, but not the type of conviction. The court “disagree[d] with [defense counsel’s] characterization,” and denied the motion.
B. Analysis
Respondent argues that appellant failed to object to the court’s informing the jury about the nature of his prior conviction, and that he therefore has forfeited any claim of error on appeal. We disagree. Appellant’s counsel objected to the court taking judicial notice of the fact of conviction and his sentence. This objection is adequate to preserve the issue, even though defense counsel did not object specifically to the court’s later disclosure of the nature of the crime. We note that our review of the record shows that defense counsel could not reasonably have anticipated that the court would tell the jury appellant had been convicted of assault with a firearm. The prosecutor specifically asked the court not to do so, and the court, when describing the items it would judicially notice, did not mention the nature of the crime. After the court disclosed the nature of the crime to the jury, any further objection would have simply highlighted the information.
As to the prejudice caused by revelation of the nature of the prior conviction, appellant contends that assault with a firearm “was a crime of implicit violence and therefore was bound to detrimentally impact the jury’s view of appellant.” (See People v. Valentine (1986) 42 Cal.3d 170, 182-183.) He contends that “[t]he more reason the jury had to believe that appellant was an habitually dangerous offender, the more likely it was to ignore the weakness in the evidence offered to prove the gang allegation.” Appellant also points to the fact that the jury asked two questions regarding the gang enhancement allegation, and for read back of the prosecutor’s rebuttal argument, as indicative of prejudice.
Specifically, they asked for a copy of section 186.22, subdivision (b)(1)(C), and for clarification of “what the ‘association with a gang’ is in difference to ‘the benefit of the gang.’” In response, the court directed the jury to the relevant instruction, and provided definitions agreed to by counsel.
The court responded that testimony could be read back, but argument by counsel was not evidence and was not subject to being read back.
We conclude, however, that the information regarding the nature of appellant’s prior conviction was not prejudicial regarding the gang enhancement, whether considered under the state (People v. Watson (1956) 46 Cal.2d 818, 836) or federal (Chapman v. California (1967) 386 U.S. 18, 24) standard of harmless error.
The evidence of appellant’s involvement in the robbery charged in the instant case was essentially undisputed. In that crime, appellant punched the victim in the face and repeatedly ordered his accomplice, who was armed with a pistol which he put to the victim’s head, to shoot the victim. Further, the jury was properly informed of appellant’s membership in Varrio Norwalk, and of that gang’s record of violent crimes. Appellant does not argue that the jury should not have been informed that in 1999 he had been sentenced to five years in state prison. In short, the properly received evidence showed that appellant belonged to a violent gang; that he participated in a violent robbery in the instant case in which he ordered his armed accomplice to kill the victim; and that he had been sentenced to five years in prison in 1999. In light of this properly received evidence, the nature of appellant’s prior conviction – assault with a firearm – added little that could have influenced the jury in its consideration of the gang enhancement.
True, the jury asked for read back of the prosecutor’s rebuttal argument. But in that argument, the prosecutor made only brief mention of appellant’s incarceration, and did not mention the nature of the prior conviction. Hence, the jury’s desire to hear the prosecutor’s rebuttal argument a second time does not evidence concern with the nature of appellant’s prior conviction. Further, although the jury asked two questions about the gang enhancement, neither referred to the prior conviction. Indeed, the jury inquiries suggest that rather than ignoring purported weaknesses in the prosecution’s evidence, the jury was conscientiously evaluating the requirements of the gang allegation in light of the evidence presented. Nor did the jury express any confusion about the trial court’s limiting instruction that the jury was to consider the evidence only for the purpose of showing that appellant “would have been unavailable in Norwalk or in the One Ways as he’s been identified because he was incarcerated. Do not consider anything else connected with that conviction in any manner whatsoever.”
Finally, despite appellant’s protestations to the contrary, the evidence supporting the gang enhancement, and particularly his active membership, was considerable. Indeed, the uniquely probative fact that appellant directed to victim to drive to his gang’s territory, where he and his accomplice committed the crime, strongly suggested appellant’s gang motive for the crime.
Under these circumstances, we conclude that it is neither reasonably probable, nor reasonably possible, that learning the nature of appellant’s prior conviction affected the jury’s true finding on the gang enhancement.
III. Imposition of Two Enhancements Based on One Prior Conviction
Appellant contends, and the People correctly concede, that the one-year enhancement of his sentence for a prior prison term pursuant to section 667.5, subdivision (b), based on his conviction and sentence for assault with a deadly weapon must be stricken. That conviction was also the basis for the court’s imposition of a five-year enhancement pursuant to section 667, subdivision (a)(1). Pursuant to subdivision (b) of section 667, “when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.” (People v. Jones (1993) 5 Cal.4th 1142, 1150.)
IV. Imposition of the Upper Term
The trial court selected the upper term of six years for the robbery conviction, doubled to twelve years as a result of the prior strike. Appellant contends that the court’s selection of the upper term violated Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham). We disagree.
In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court held that the upper term is appropriately imposed within the context of the Sixth Amendment as long as a single aggravating factor has been established by a jury finding, a fact admitted by the defendant, or a prior conviction. Once a single aggravating factor is constitutionally established, the trial court retains its traditional discretion to sentence within the statutory range, and in doing so, may take into account aggravating factors that were not found by the jury, admitted by the defendant, or based on prior convictions. (Id. at p. 815.) Further, the court stressed that permissible reliance on prior convictions includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.)
In the instant case, the trial court chose the upper term based, in part, on appellant’s pattern of violent conduct which indicates he is a danger to society; his numerous and increasingly serious prior convictions; his prior prison terms; his status as a parolee when he committed the robbery; and his unsatisfactory conduct on parole. The probation report shows that appellant has 34 prior arrests, two prior felony convictions, and a number of misdemeanor convictions. All of these listed factors cited by the court relate to appellant’s criminal history and were properly considered without violating appellant’s right to a jury trial. (Id. at pp. 819-820.) Therefore, no Sixth Amendment violation occurred in imposition of the upper term. “[T]here is no Sixth Amendment error in a case in which one or more aggravating circumstances have been established in accordance with Sixth Amendment requirements.” (People v. Sandoval (2007) 41 Cal.4th 825, 838; see also Black II, supra, 41 Cal.4th at p. 813.)
DISPOSITION
The one-year enhancement under section 667.5, subdivision (b), is stricken. The superior court is directed to prepare an amended abstract of judgment so reflecting, and to send it to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.