Opinion
A138495
08-31-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTOINE FOWLER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. 2117605)
Antoine Fowler (appellant) appeals from a judgment entered after a jury found him guilty of transporting an assault weapon (Pen. Code, § 12280, subd. (a)(1)) and found true a gang enhancement allegation (§ 186.22, subd. (b)(1)(A)). The trial court sentenced appellant to 12 years in prison. He contends: (1) the delayed prosecution violated his state and federal constitutional rights to due process; (2) the court violated his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 445) by allowing the prosecution to introduce evidence of his booking statement; and (3) there was insufficient evidence to support the jury's true finding on the gang enhancement. We reject appellant's contentions and affirm the judgment.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On February 25, 2010, a San Francisco County Grand Jury indicted appellant and nine other individuals on 30 counts. The following five counts applied to appellant: (1) murder of Lloyd Randalston on October 13, 2006 (§ 187, subd, (a), count 1) with a gang special circumstance (§ 190.2, subd. (a)(22)), firearm enhancements (§§ 12022, subd. (a)(1), 12022.5, subd. (a), 12022.53, subds. (a)-(d)), and a gang enhancement (186.22, subd. (b)(1)(C)); (2) conspiracy to murder Lloyd Randalston (§ 182, subd. (a)(1), count 2) with firearm enhancements (§ 12022.53, subds. (a)-(d)) and a gang enhancement (§ 186.22, subd. (b)(1)(C)); (3) assault with a semiautomatic firearm on Lloyd Randalston (§ 245, subd. (b), count 3) with a great bodily injury enhancement (§ 12022.7, subd. (a)), a firearm enhancement (§ 12022.5, subd. (a)), and a gang enhancement (§ 186.22, subd. (b)(1)(C)); (4) transportation of an assault weapon on March 4, 2006 (§ 12280, subd. (a)(1), count 22) with a gang enhancement (§ 186.22, subd. (b)(1)(A)); and (5) participation in a criminal street gang (§ 186.22, subd. (a), count 30).
On May 11, 2012, the trial court granted appellant's motion to sever his trial from his co-defendants. Thereafter, the court granted the prosecution's motion to dismiss counts 1, 2, and 3 relating to the murder of Lloyd Randalston, and granted appellant's motion to dismiss count 30 for participation in a criminal street gang due to the passing of the statute of limitations. On October 11, 2012, this court denied appellant's motion for a writ of mandate in which he argued that the remaining count—count 22 for transporting an assault weapon with a gang enhancement—should be dismissed on due process grounds due to the delay in prosecuting the charge. The California Supreme Court denied review, and a jury trial on count 22 and the gang enhancement began on January 9, 2013.
1. The Offense
On March 4, 2006, San Francisco Police Officers Reginald Scott and Jason Kirchner were in a surveillance car at a parking lot across the street from B & J Burger in San Francisco's Bayview district (Bayview). At approximately 5:45 p.m., they spotted a minivan they had been expecting to see and reported this to Sergeant Edward Yu, who was directing the team. Yu ordered the officers to stop the minivan and detain the occupants.
A confidential informant had informed police that a grey minivan occupied by four black men in their 20s, including a man by the name of "Benson," would show up at that location for some type of gang activity, and that a loaded assault rifle would be inside the minivan.
Scott and Kirchner exited their vehicle, drew their weapons, and crossed the street to B & J Burger. They stayed close to the building and approached the rear of the minivan. At about the same time, Sergeant Mikail Ali drove into the B & J Burger parking lot and parked in front of the minivan. Officers Gerald Lyons and Mike Ellis also drove to the parking lot and parked behind Ali's vehicle. Other officers also arrived. They all exited their vehicles and approached the minivan on foot with weapons drawn.
As they approached the minivan, several officers recognized, from prior contacts, appellant as the person sitting in the driver's seat and Clark Benson as the person sitting in the front passenger seat. They also recognized the other two passengers in the minivan—Sir Marcus Bibbs (Bibbs) in the middle row of the passenger side, and Donald Hamilton (Hamilton) in the rear bench-style seat. Scott went to the front of the minivan and pointed his gun at appellant and the other occupants. Ellis went to the passenger side and pointed his gun at Clark Benson. Several officers called out for the occupants to raise their hands; they all complied. One of the officers saw appellant slide down in his seat.
When Lyons pulled open the passenger-side sliding door, he saw an assault rifle and called out that there was a gun. The rifle was found slightly to the rear of the middle row of the minivan, with the stock of the rifle pointed towards the back row. There was a magazine inside. Two batting gloves, known as "burners," were found underneath the stock of the rifle; they were meant to prevent fingerprints from transferring onto the rifle and prevent gunshot residue from getting on the user's hands. Ali photographed the rifle and took it into custody. The parties stipulated that appellant and the other three occupants in the minivan "were excluded as possible contributors to the DNA mixture detected on the gun." "[I]t's also stipulated that the gun was dusted for fingerprints, and there was no match to the four individuals . . . ." The parties also stipulated that the gun was an "M1, semi automatic rifle, and that it was examined to be functional using the submitted magazine." The occupants were removed from the minivan without incident.
Once at the station, appellant gave an interview to police after waiving his Miranda rights. During the interview, appellant said he was in his sister's minivan with his cousin Clark Benson and his friends Bibbs and Hamilton. Appellant denied gang membership and said he was not involved in dealing drugs and had never been shot or involved in a shooting. When asked whether he had the rifle "for protection or you're about to go hurt somebody," appellant responded that the rifle "wasn't even on me" and that he did not know about it. When asked who had the rifle, appellant responded that Hamilton, who was in the back, "must have put it right there." When asked why Hamilton was carrying a rifle, appellant responded, "the man had been robbed over twenty times." Appellant denied seeing Hamilton bring the rifle into the minivan and speculated that he must have kept it under his jacket.
When asked why he let Hamilton in the minivan with a rifle, appellant said he did not know Hamilton had it. When pressed on the issue and asked, "Why'd you let him in your [minivan] with it?" appellant responded, "Wrong thing to do." Appellant repeatedly said they had no plans to kill anyone; they were simply sitting in the parking lot waiting to meet someone who would assist them in purchasing "keys," i.e., kilos of drugs. Appellant and the others were supposed to meet a Mexican man who was going to front them the money to buy the drugs. Appellant said that every time he went out with "these guys," he got into trouble. He denied any plan to rob the Mexican man. Appellant denied touching the rifle or having anything to do with it. He had only 45 minutes to get his sister's minivan back to her, and he would not do anything in a vehicle that both his sister and his girlfriend used. Appellant provided a DNA sample. A recording of the interview was played for the jury.
Defense expert James Norris testified that in California, rifles are illegal if they are center fire, have detachable magazines, and have one or more of about 20 specified characteristics—one of which is that they are under 30 inches long. The rifle seized in the current matter was a .30 caliber M1 carbine rifle, which are center fire and have detachable magazines. The only modification to the rifle was that the stock had been shortened after it was manufactured; Norris measured the rifle and found it was 28 inches long. He said he could not tell with his naked eye that the rifle was illegal, i.e., under 30 inches long. According to Norris, M1 rifles that are illegal in California are legally available in other states, notably in Nevada, but may not be legally brought into California. A private unlicensed gun dealer in Nevada is likely to advise a buyer that the rifle is illegal in California, but is unlikely to advise the buyer that it is illegal to bring the rifle to California.
2. Gang Enhancement
a. BNT — a criminal street gang
San Francisco Police Officer and Gang Task Force member Leonard Broberg testified as a gang expert for the prosecution. He testified that the California Street Terrorism Enforcement and Prevention Act, codified in section 186.22, subdivision (f), defines a criminal street gang using three elements. First, it is an ongoing association among three or more persons. Second, the purpose of the gang must be certain predicate crimes. Third, the gang must have a common name, sign, or symbol.
(1) Ongoing Association Among Three or More Persons
Broke Niggas Thievin (BNT), also known by the names Kirkwood, 1500, and Garlington, was a criminal street gang. It had a specific territory, the heart of which was the 1500 block of Kirkwood Avenue in Bayview. Garlington Court and Commer Court were later added to BNT's territory. In or about 2004, another gang known as Osceola fell apart and thereafter merged with—and became synonymous with—BNT, although Osceola had recently begun to reemerge as a separate entity. A gang known by the names Big Block or Harbor Road, as well as a gang known by the names Rock or Double Rock, were allies of BNT. The Sunnydale gang, Oakdale gang, and the West Mob gang—also known as Mob Stars, Middle Point, and West Point, were rivals.
BNT had numerous members. Broberg relied on multiple sources in identifying individuals as BNT members, including field identification cards and a list the San Francisco Police Department compiled in 2006. He also looked at associations among people, crimes, police contacts, admissions, and convictions. In some instances, the individuals admitted their gang membership or had stay away orders from gang members as conditions on their probation. The identification of gang members "came through a number of sources. But it was information that was always corroborated."
Among the factors used by the San Francisco Police Department in determining whether someone is a gang member are that the person: (1) admits to law enforcement that he is a gang member; (2) participates in gang-related crimes or activities; (3) has been identified by a confidential reliable informant; (4) associates with other gang members; (5) has gang tattoos; (6) has been seen displaying hand signs; (7) has been seen in gang territory; (8) wears gang clothing or has gang paraphernalia; (9) is required to register as a gang member under section 186.30; and (10) admits their gang membership during a jail classification interview.
Broberg identified dozens of BNT members and explained how he determined they were members. In addition, he opined that all four individuals who were in the minivan—appellant, Clark Benson, Bibbs, and Hamilton—were members of BNT.
Broberg testified, for example, that Vale Howard, who had a BNT tattoo and was arrested with a shotgun, was a BNT member. Cyril Hanna pleaded to a gang allegation. Glosser High was a member of Osceola and socialized with BNT members. Charles Michaels was a BNT member who was convicted of witness intimidation and pleaded to a gang allegation. Arkeylious Collins, who was murdered in 2005, wore a sweatshirt that said "1500" and "BNT." Knard Montgomery admitted being a BNT member and to possession of a gun; police found BNT gang writings in his home. James Talley admitted he was a Big Block member. Alvin Wilform was a BNT member who was convicted of possession of cocaine base; police found two guns in his backyard. Alvin Wilform and Charles Michaels were in a car with the word "Kirkwood" scratched into the dashboard. Lloyd Randalston was a BNT member who was killed by fellow gang member Clark Benson. Broberg and other police officers had many contacts with the above BNT members in BNT territory.
As to appellant, Broberg detailed numerous instances in which police had contacts with appellant in BNT territory and/or in the presence of BNT members. When police contacted appellant in January 2007 in BNT territory, for example, he was with known BNT members Cecil Terrell, Clark Benson, and Darius Brooks. When Clark Benson was shot in 2007, appellant was with him at the scene, and later, at the hospital. When police contacted appellant in November 2007 in BNT territory, he was with BNT members including Alvin Wilform and Charles Mabrey. When police contacted appellant later that month, again in BNT territory, he was with Clark Benson, Alvin Wilform and other BNT members.
As to the other three individuals in the minivan, Clark Benson, whose brother was also a BNT member, admitted the BNT gang existed; he was also listed on six field interview cards as a BNT gang member, and was known for having murdered fellow BNT member Lloyd Randalston. Bibbs admitted he socialized with the Osceola gang; he was stopped by police in September 2006 while walking towards Osceola with a gun. Police had contacts with Hamilton in BNT territory on a number of occasions.
(2) Predicate Crimes
BNT's primary activities included the sale of illegal narcotics, possession of illegal weapons, drive-by shootings, robberies, assaults, homicides, and attempted homicides. Broberg explained: "In order to be respected, you need to be feared. In order to be feared, you have to commit acts of violence." To " 'put in work' " means to commit crimes on behalf of the gang. In many of the cases, Broberg "was the investigating officer and did participate . . . . I would say a good portion of them."
Broberg gave multiple examples of crimes committed by BNT gang members. For example, Clark Benson admitted killing Lloyd Randalston in BNT territory for the benefit of a gang. Cecil Terrell was arrested in gang territory for having cocaine base for sale, and for possession of a gun. Vale Howard was arrested with a shotgun, and Charles Michaels was convicted of witness intimidation. Alvin Wilform was convicted of possession of cocaine base, and police found two guns in his backyard. Glosser High committed a shooting. Elston Drummer testified at appellant's trial that appellant robbed him in BNT territory.
BNT members including Cyril Hanna and London Shaw robbed and shot a victim and pleaded guilty to the crimes as well as to gang allegations. Appellant and three BNT gang members were convicted of a burglary at a Best Buy in San Mateo using credit cards that were stolen in BNT territory. A couple of days before he was arrested in the instant matter, appellant and others were seen socializing around a BBQ pit; narcotics were later found in the BBQ pit.
In 2005, police stopped Bibbs, who possessed cocaine base; the following year, police stopped Bibbs while he was walking towards Osceola with a gun. In 2004, Knard Montgomery committed a robbery and pleaded guilty to possession a gun. Latoya Eckhart testified that her husband Delvon Fields was murdered by BNT members.
(3) Common Sign , Name , or Symbol
Gangs used graffiti to mark their territory. One photograph, for example, showed graffiti representing the alliance between Big Block and Kirkwood/BNT, stating, " 'the block to the wood. It's all good.' " Another photograph showed graffiti announcing the alliance between BNT, Big Block, Osceola, and Double Rock. It said, " fuck the rest' " and " 'fuck the mob [West Point] and Oakdale and Sunnydale and Quesada.' "
Gang paraphernalia was used to show gang membership. One photograph showed an individual named Toney Carter wearing a T-shirt with the words " 'Kirkwood, BNT, 1500,' " " 'block to the wood' " and " '268' " written on it. Another photograph showed BNT member Alfonzo Rhodes wearing a T-shirt with the word " 'Oohda' " on it, which was a tribute to a gang member who was killed in 2004.
Tattoos often demonstrated a person's membership in a gang. When gang members tattoo their bodies with gang references "they are displaying a greater loyalty or allegiance to that gang." "[I]f you have a tattoo that's gang related, you have permanently marked your body showing your membership or your loyalty to that gang." "So it's very important." Cecil Terrell had tattoos that said, " 'we all we got,' " which was a tattoo that some BNT and Big Block members had gotten after the death of a fellow gang member. A photograph of BNT member Vale Howard showed him with a tattoo on his chest that included the letters "BNT."
Appellant displayed his tattoos in court. On his right forearm was the word " 'OSC' " and on the left was the word " 'MOB.' " These tattoos showed appellant was a member of the Osceola Mob which, at various times, was either an ally of BNT, or merged with BNT. A photograph showed that appellant had these tattoos at least as early as October 13, 2004.
Flashing gang hand signs was another way to show gang membership. "When an individual is making hand signs, he is claiming membership within that gang, and many times it is not something that is done lightly." "[I]f you're not a member of the gang, repercussions could be serious . . . ."
BNT had a hand sign that was "K" and "W" for Kirkwood, which was three fingers held sideways for K and then turned upward for W. Several photographs showed Cyril Hanna, James Talley and others throwing the BNT gang signs with both hands. One of those photographs was taken on the 1500 block of Kirkwood Avenue, i.e., BNT territory. Several photographs showed appellant throwing BNT hand signs, and one photograph showed appellant in the foreground with others behind him throwing BNT hand signs. A series of photographs that were taken from appellant's cell phone when he was arrested with BNT gang member Charles Michaels—who pleaded to a gang allegation—showed both appellant and Michaels displaying the "K" and "W" hand signs. Appellant's cell phone also had two photographs of Hamilton, three photographs of Cecil Terrell, three photographs of appellant with Clark Benson, photographs of Cyril Hanna, and additional photographs of appellant displaying the BNT hand sign. The photographs helped establish associations between gang members, especially when they threw the same hand signs together.
b. Appellant's statements
In addition to associating with and committing crimes with BNT members, having BNT tattoos, and throwing BNT hand signs, appellant made multiple statements that showed he was a BNT member. For example, when appellant was arrested for a robbery in San Mateo County, he claimed he was not a gang member but admitted he socialized with members of Big Block, which was allied with BNT. During an interview with police inspectors John Cagney and Herman Jones, appellant said that BNT member Cecil Terrell wanted appellant to clean his weapon the day after a shooting. Because gang members trust each other with their guns, the fact that Cecil Terrell asked appellant to take and clean his gun suggested appellant was a BNT member. In his statement to police after being arrested in the minivan, appellant admitted he and the others in the minivan were on their way to buy some "keys," i.e., kilos of cocaine.
In May 2007, appellant contacted Broberg from San Bruno jail and said he had important information to share; Broberg and Sergeant Tony Chaplin met with appellant and interviewed him. During the interview, appellant provided Broberg and Chaplin with information regarding various crimes involving BNT members. He described, for example, a shooting involving Willey Caldwell, Julius Rhodes, and Traval Atkinson and said the shooter was Glosser High. Appellant explained that the shooting occurred because Willey Caldwell thought that Martell Peters, a member of rival gang West Mob, was in the car. Appellant gave other details about the shooting—including the location of the gun—that were later confirmed to be accurate.
Appellant also provided information regarding a search warrant served on BNT member Knard Montgomery's home that resulted in officers finding a large amount of narcotics and a gun. Appellant said he was the one who had gotten Montgomery the connection to obtain the .40 caliber gun that was found. Appellant went on to discuss firearms in more detail, explaining that the Knock out Posses gang used assault rifles with 30 round clips, which were illegal in California but legal in Las Vegas. Appellant made several references to obtaining weapons in Las Vegas. Referring to an incident in which Knard Montgomery was shot in 2006, appellant said that Montgomery had told him that Charles Rollins, an Oakdale Mob member, had shot him. Appellant explained that Daniel Denard, an Oakdale Mob member, had been shot, so that Charles Rollins had retaliated by shooting someone from BNT.
Appellant also discussed the murder of BNT member Arkeylious Collins. Appellant said that some rivals went to Harbor first, and when they could not find anyone, they went to Garlington, and Daniel Denard shot Arkeylious Collins. Appellant said that Clark Benson was the last person to speak to Collins before he was killed. Appellant also knew who the shooter and driver were when Bibbs was shot in the leg.
Appellant also described an incident in which he was on the 1600 block of Kirkwood with Derrick Gould, Clark Benson, Julius Rhodes, and Cyril Hanna, selling narcotics from a garage, when he recognized a car passing by as one that had been used by rival gang West Mob in a previous shooting. Clark Benson instructed Derrick Gould to fire shots at the car, and Gould complied. After the shooting, appellant and the others fled the scene, then contacted Julius Rhodes and Cyril Hanna to let them know what had occurred.
Finally, appellant talked about Oakdale members doing shootings and BNT members making plans for retaliation. Appellant said that BNT was trying to work out a truce with West Point and that BNT was no longer aligned with Big Block. BNT would still maintain its rivalry with Harbor and Oakdale. At one point during the interview, Chaplain said, "you guys are truly gangsters, gang bangers, man. This shit is truly gang banging." Appellant replied, "this shit is real," which Broberg opined was an acknowledgement of gang activity.
Being a witness to a gang related crime can show that the person is a gang member because it shows the other gang members trust that person. The fact that other gang members trusted appellant to be a witness to Clark Benson and Cecil Terrell committing murder, and to participate in a shooting, and later, in a large narcotics deal, showed appellant was a gang member. Appellant also had "extensive knowledge" of "the intimate workings of the gang," and was "always consistently in the company of other gang members." Moreover, the facts in this case showed that the M1 rifle found in the minivan was going to be used for protection during a drug deal, or to rob the sellers. Based on all of the facts, Broberg concluded that appellant was a member of BNT Kirkwood on March 4, 2006, and that he transported the assault rifle for gang purposes.
c. Other Prosecution Testimony
Elston Drummer testified that he lived in Bayview in 2006 and had been friends with appellant for a couple of years. About a week after Lloyd Randalston was murdered, appellant called Drummer and told him to come to Garlington to sell him some marijuana. Drummer drove to an apartment and, while still in his car, handed appellant three ten-dollar bags of marijuana. Appellant did not give Drummer any money but asked him to come talk to him, so Drummer got out of the car and followed appellant.
Two individuals named Jay and Al then came up behind Drummer and walked down some outside stairs. Drummer noticed that appellant had a rifle that was 30 to 36 inches long. Appellant turned around and aimed the gun at Drummer. Apparently upset that Drummer was socializing with people from Harbor Road, appellant said, " 'You hanging out with a bunch of other guys, and you heard what happened to LO [Lloyd Randalston].' " " 'You don't hang out with me anymore. You're acting funny.' " Jay and Al went through Drummer's pockets and took his money, after which Drummer ran to his car and drove away. Drummer said he originally told police about this incident because he was facing some time in prison and was hoping to receive leniency in exchange for assisting police.
Police Inspector John Cagney testified that in February 2009, he was investigating the shooting of brothers Leonard and Edward Waters, which resulted in Leonard's death. At the same time, Inspector Herman Jones was investigating the murder of Lloyd Randalston. Appellant separately contacted inspectors Cagney and Jones and said he might have useful information. When the inspectors interviewed appellant on February 13, 2009, appellant said he did not participate in the shooting of Lloyd Randalston but knew the shooters were in a blue Impala. Appellant had seen the same car very shortly before or after the shooting somewhere else in San Francisco.
The prosecution also introduced the testimony of San Francisco Deputy Sheriff Rebecca Lee and San Francisco Senior Deputy Sheriff Al Jang, both of whom worked in the county jail's classification unit, and whose jobs were to determine whether inmates belonged to a gang so that they could ensure the safety of the inmates and staff in assigning housing. Lee interviewed each inmate privately and asked if they were affiliated with any street or prison gang.
On February 27, 2010, she wrote in appellant's booking card, "he stated that he is from Hunters Point and that he said 'I'm BNT.' " At the time she spoke to appellant, she was aware appellant had been charged with a gang allegation. Lee did not remember if appellant signed his questionnaire, but if he had refused to sign it, she would have written "Refused to sign" across the signature line. His completed questionnaire was not signed and did not have "Refused to sign" written on it because it was a computer-generated copy. The same day, Lee interviewed Cecil Terrell and Clark Benson, both of whom admitted to belonging to the same gang as appellant. Terrell's questionnaire was also not signed or marked as unsigned because it was computer-generated.
The parties stipulated that "Antoine Fowler filed a grievance with the San Francisco Sheriff's Department concerning his alleged admission to membership in quote 'BNT' end quote to Sheriff Deputy Lee on February 27, 2010. [¶] Sheriff Deputy Tong, star number 1889, interviewed Antoine Fowler concerning that grievance. During this interview, Mr. Fowler stated that he had never admitted membership in BNT or other gang." The parties also stipulated "that the two photographs taken of Mr. Fowler which were shown to Deputy Lee in the testimony—that included the forearms with the tattoos which she testified about— . . . were taken on September 25th of 2006."
Jang testified that he interviewed appellant on August 7, 2004 and asked him if he was a gang member, to which appellant replied, " 'I'm not a member, but I hang around with [Big Block].' " Jang understood this to mean that appellant did not admit gang membership but was an "associate of a criminal street gang," which meant he was friends with or related to a gang member. An inmate's admission that he socialized with friends in a gang was enough to be designated as an associate, but it was not enough to establish membership. If he asked an inmate if he was a gang member, and the person replied, "I am West Point," he would indicate the person was a member of that gang.
3. The Defense
Brenda Evans testified she lived in Bayview from birth until 2010. In 2006, she was living with her parents and children in her parents' home. Appellant, who was much younger than she, was her cousin on her father's side; he was known as Fat Rat, but she called him Twan. When appellant was about 11 years old, he began attending the family's weekly BBQ. Appellant was always well behaved and often brought Clark Benson—his cousin on his mother's side—with him.
The police came by their neighborhood almost every day. Evans thought the police were "dirty" because they would pull up in cars and watch, or harass appellant, Clark Benson, and others for no reason. On one occasion, Evans's son, who was 12 years old at the time, was going up some stairs with a tray of food when an officer pulled a gun on him and told him to freeze. At another BBQ, the police stopped appellant on the side of the house, put him up against the side of the house, and search him; the police did not find anything.
On cross-examination, Evans testified she never saw appellant with a gun and had not heard him talk about guns. She had never seen appellant with Cecil Terrell. There were crack cocaine sales in her neighborhood in 2006. There was violence, and a lot of people were shot at 3rd Street and Kirkwood Avenue, but there was violence everywhere, and a few people were responsible for it. She acknowledged she had told appellant's investigator that the police were labeling "every black kid," or any male in the neighborhood regardless of race as BNT. Neither her 15-year-old son nor her 65-year-old brother had been labeled BNT. When asked to name men the police falsely identified as BNT members, she named three men who had been shot and killed in gang violence.
Manuel Torres testified he was a maintenance supervisor who had performed maintenance for Bayview Apartments for 17 years. Appellant used to live at 45 Commer Court, Apartment 128, with his cousins and his aunt. Appellant "was a nice kid" who used to go to BBQs in the summer with Clark Benson and other neighbors including Torres. They were friendly like a big family. Torres had never seen graffiti with the letters " 'BNT,' " " 'Kirkwood,' " " 'Da Wood,' " "1500," or " 'we all we got.' " There were no businesses in the area except for " 'candy houses' "—private residences that sold soda, candy, and chips.
On cross-examination, Torres testified he was not aware of any narcotics activity on his property in 2006 and 2007. He did not see any BNT graffiti on the 1400 block of McKinnon, and he was not aware of any narcotics activity in that area. He was not aware of any gang activity around the property he managed. He did hear shootings that seemed to be about five blocks from the property, probably in Oakdale, and some of his team members had found bullet casings outside the property. He saw appellant in the Garlington area in 2002, 2003, and 2004, but he was not sure about 2005 and afterward.
Kimberly Watts testified that her grandmother raised her in Bayview. They lived at 45 Commer Court with her cousins Roy and Clark Benson "practically all my life," before Watts and her grandmother moved to 4445 3rd Street, then to Hayward. Watts spent a lot of time with Roy and Clark Benson, as well as with appellant, who was her cousin on her mother's side. Appellant lived for some time with Watts, although he lived mostly with his mother, Tonya Fowler, throughout San Francisco, Antioch, Oakland, and San Pablo. When appellant and his mother lived in San Francisco, they lived on Garlington Court a few doors down from Watts, and on Shafter Street, Palou Avenue, and Commer Court. Watts never saw Clark Benson with a gun. Roy Benson went to prison for gun possession, then died. She did not know whether Clark or Roy Benson were involved with narcotics. She had heard appellant talk about narcotics or guns.
According to Watts, Big Block was a rap group, and her son's father was a member. BNT, which came up with its name at around the same time Big Block did, was also a rap group. She did not know Big Block or BNT as gangs. On cross-examination, Watts testified that Williams, Baggie, and Black started BNT in the 1990's. Williams and Baggie were dead, and Black was in federal prison. The last time they did a show was 1999 or 2000.
Jake Bergman testified he was appellant's investigator and prepared various photographs, diagrams, and exhibits. Roberto Aparicio testified he had worked with nonprofit organizations with disenfranchised youth since 1993. From 2004 to 2008, he worked for Vision Youthz, which offered paid internship programs and taught life and job skills to youths who faced barriers to employment. Appellant, who participated in the program for about a year beginning in 2004, got along very well with staff and was there a minimum of two hours a day on weekdays, while at the same time holding a part-time job with the Parks and Recreation Department. Appellant brought his cousins Clark and Roy Benson into the program, and Aparicio was impressed that appellant was trying to help get them off the streets. Appellant left the program at least twice because he was sent back to California Youth Authority. After appellant left the program, he wrote to Aparicio sporadically, and in 2007, Aparicio wrote a letter of support on appellant's behalf.
Lena Miller testified she was the Executive Director of Hunters Point Family Youth Development Agency, a youth development agency that partnered with parents to provide after school programming enrichment services and tutoring. Some of their clients were young males from the Kirkwood area. Loyalty is one of the primary attributes valued by young males in the community. People often say, " 'We all we got.' " She had often seen young people throw hand signs. There was drug and narcotics activity in Bayview, but there was no "mainstream" "gang activity" in the area. Law enforcement mistakenly equated hand signs with gang membership, but it was often just a way for kids to play around.
James Hernandez, professor emeritus at California State University, Sacramento, Division of Criminal Justice, testified as a gang expert for the defense. He testified that of the 75 times he had testified as a gang expert in state court, his testimony related specifically to African American gangs in San Francisco on one occasion.
Defense counsel asked Hernandez to assume that appellant knowingly transported an assault rifle, and to determine whether he did it for the benefit of a gang. Hernandez said the question came down to whether a non-gang-member would be likely to do the same activity. It was significant, for example, that appellant was in the minivan with three friends he had known for years. The fact that a number of different gang names—e.g., Garlington Island, BNT, Garlington, Harbor/Garlington—were listed on appellant's interview cards suggested that gangs are not as solidly defined as they are often presented, and are in fact simply "networks" of people who come together because they live in the same neighborhood.
The San Francisco Gang Task Force had a list of criteria used to validate gang membership, which included admitting gang membership, being observed with known gang members, having gang tattoos, clothing and symbols, and posing for photographs with known gang members or using gang-related hand signs. The list originally came from the Department of Justice. There was also a list to validate gang membership from the California Department of Corrections and Rehabilitation.
The BNT gang was not structured and was not "much of an organization"; rather, it was a neighborhood group based on friendships and familial relationships. There was no leader, and there was no formal or informal structure. There was no initiation process. The more a group engaged in drug sales, the more structured the group was likely to be. Alleged BNT members, including appellant, had participated in drug sales, but there was no sign the drug sales were coordinated or structured in any way. The fact that they happened to sell drugs in a particular area did not mean there was a gang in control of the drug trade. People who lived in violent neighborhoods carried firearms for protection and not for gang purposes.
The Penal Code's definition of a "criminal street gang" is different from a mere gang, which is a group of individuals, usually males under the age of 25, who are looking to be part of a peer group. When asked about hand signs as an indicator of gang membership, Hernandez testified that hand signs were a "way of communication. It is a way of letting people know who you are or where you're from." He reviewed photographs of appellant displaying hand signs and opined that they showed only appellant's state of mind, and did not prove gang involvement. Hand signs were commonly used and were "not what [they] use[d] to be" 10 or 15 years ago.
Hernandez opined that BNT/Kirkwood was not a criminal street gang in March 2006. Rather, it was "very much a neighborhood group consistent with guys growing up in the same neighborhood, isolated from the rest of the city. . . ." Having reviewed appellant's criminal contacts, interviews, and statements, Hernandez did "not believe that there was any evidence to indicate that he was a member of any street gang." Rather, "he was with people he grew up with, people he walked with—he was hanging out with. That is consistent with being, you know, a guy from a . . . tough neighborhood, and . . . living the life, or just you are who you are." The fact that appellant displayed a knowledge of people and crimes during his interview with Broberg and Chapman showed only that he had grown up in the neighborhood. Hernandez testified, "[Y]ou don't have to be a member of a gang to know what's going on in the neighborhood." Assuming appellant knowingly transported the assault rifle, Hernandez believed "[t]here is no way to tell" whether it was done on behalf of a gang.
On cross-examination, Hernandez conceded he could not name any African American street gangs except the one mentioned by the prosecutor. He testified that rivalries can be important in analyzing whether an organization is a gang, but could not remember much about the Oakdale gang, and did not look into other African American gangs in San Francisco. Tattoos also can be relevant to establishing gang affiliation, but he did not recall whether appellant had tattoos. Hernandez did not know who Cecil Terrell was and incorrectly guessed he was in the minivan. He believed Clark Benson may have been one of the other individuals in the minivan. He did not look to see if any of the other individuals in the minivan were gang members. Hernandez did not know what Big Block stood for and did not recall what BNT stood for, but believed it was a rap group that came into existence in 1996. He was not familiar with Garlington Court or the Oakdale housing projects.
Hernandez was not familiar with the felonies committed together by alleged BNT members and did not think it was relevant to determining whether the crime charged was committed for the benefit of a gang. He did not think it was relevant that appellant committed a crime with Dishon Irving, Charles Mabrey, and Cecil Terrell because that incident was not related to the instant case. The prosecutor asked, "How can you tell us that BNT is . . . not a criminal street gang if you don't know who the alleged members are?" Hernandez replied, "Because there is some confusion about Mr. Fowler's activity or membership . . . because . . . I think there are three different gangs listed for Mr. Fowler." "Once I saw several gangs listed, I did not feel that BNT was, you know, necessarily relevant anymore." Crimes committed by gang members are relevant to determine whether an organization is a criminal street gang, but Hernandez did not look into whether any alleged BNT members had committed gang-related crimes. Hernandez acknowledged a San Francisco Gang Task Force officer would know more about criminal street gang activity in San Francisco than he would.
On recross examination, Hernandez testified that his opinion that the offense was not committed for the benefit of a criminal street gang was based on the totality of the circumstances, which showed appellant merely got into a minivan with friends. He believed it is difficult to determine when a social group tips into becoming a criminal street gang: "These are very fluid organizations, and it is difficult." "I believe that it really is difficult . . . sometimes to gauge."
3. Verdict/Sentence
The jury found appellant guilty of transportation of an assault weapon (§ 12280, subd. (a)(1), count 22) and found true the gang enhancement allegation (§ 186.22, subd. (b)(1)(A)). The trial court sentenced appellant to 12 years in state prison, consisting of the aggravated base term of eight years plus the aggravated enhancement term of four years.
DISCUSSION
1. Delayed Prosecution
Appellant contends the delayed prosecution violated his state and federal constitutional rights to due process. We reject the contention.
A delay between the commission of an offense and the filing of a criminal charge does not implicate the constitutional right to speedy trial, but may implicate a defendant's right to a fair trial and due process of law. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 505; People v. Nelson (2008) 43 Cal.4th 1242, 1250.) Although the statute of limitations is the general guarantee against the bringing of criminal charges in an untimely fashion, a defendant's due process rights under the state and federal constitutions may be violated by an unreasonable delay in bringing criminal charges. (People v. Nelson, supra, 43 Cal.4th at p. 1250.) Appellant frames his claim as one under both the federal and state Constitutions, but "[b]ecause the law under the California Constitution is at least as favorable to [appellant] as federal law, we apply California law to [appellant's] claim." (People v. Abel (2012) 53 Cal.4th 891, 909, fn. 1.)
In determining whether a criminal defendant's due process right has been violated, courts employ a three step test. (People v. Catlin (2001) 26 Cal.4th 81, 107.) The defendant has the initial burden of showing prejudice as a result of the delay; the prosecution then must show justification for the delay; thereafter, the court balances the harm against the justification. (People v. Reeder (1984) 152 Cal.App.3d 900, 909-910; Ibarra v. Municipal Court (1984) 162 Cal.App.3d 853, 858.) If the defendant does not meet his burden of showing prejudice, there is no need to determine whether the delay was justified. (Serna v. Superior Court (1985) 40 Cal.3d 239, 249.)
"[U]nder California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process. This does not mean, however, that whether the delay was purposeful or negligent is irrelevant. In Scherling, supra, 22 Cal.3d at pages 506-507, we said that because the 'defendant was not prejudiced by the delay, we need not determine whether the delay was justified, particularly since there was no evidence that the delay in prosecution was for the purpose of weakening the defense.' In Catlin, we found the justification for the delay outweighed the defendant's weak showing of prejudice, but we also observed 'that there was no evidence that the delay was undertaken in order to gain an advantage over defendant. . . .' (Catlin, supra, 26 Cal.4th at pp. 109-110.) As these observations imply, whether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation." (People v. Nelson, supra, 43 Cal.4th 1242, 1255-1256.) Here, because there was nothing in the record indicating the prosecution caused the delay in order to take advantage of appellant or weaken his defense, a greater showing of prejudiced was required.
Here, as noted, the prosecution moved to dismiss the charge against appellant after the trial court granted appellant's motion to reveal the identity of the confidential informant. The prosecutor also explained that the charge was later re-filed because BNT gang members committed a series of violent felonies including murder that caused the District Attorney to investigate BNT gang activity further and to proceed on all charges against BNT members that were not barred by the statute of limitations. Appellant makes no argument and cites no authority to support the position that dismissing his case to protect a confidential informant's identity was devious or improper.
Prejudice may be shown by the loss of a material witness or other missing evidence or fading memory caused by lapse of time. (People v. Nelson, supra, 43 Cal.4th at p. 1251.) "In light of the applicable statute of limitations, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to justify dismissal of the indictment." (United States v. Marion (1971) 404 U.S. 307, 326.) A defendant must affirmatively show actual prejudice based on the facts of the case. (People v. Allen (1979) 96 Cal.App.3d 268, 278-279; People v. Hartman (1985) 170 Cal.App.3d 572, 579; Serna v. Superior Court, supra, 40 Cal.3d at p. 249.)
"Actual prejudice . . . may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution." (United States v. Marion, supra, 404 U.S. at pp. 324-325.) The amount of time between the commission of the crime and the filing of charges is not the critical issue. (Fowler v. Superior Court (1984) 162 Cal.App.3d 215, 221.) Prejudice sufficient to sustain dismissal has resulted after a delay of five months (People v. Cave (1978) 81 Cal.App.3d 957), while charges filed after a delay of ten years have been upheld (Scherling v. Superior Court, supra, 22 Cal.3d at p. 507). "We review for abuse of discretion a trial court's ruling on a motion to dismiss for prejudicial prearrest delay [citation], and defer any factual findings if substantial evidence supports them." (People v. Cowan (2010) 50 Cal.4th 401, 431; People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912 [whether preaccusation delay is unreasonable and prejudicial to a defendant is a question of fact].)
Here, the incident leading to the arrest and the firearm charge occurred on March 4, 2006. Thereafter, on April 20, 2006, the trial court granted a defense motion to disclose the confidential informant's identity, and the prosecution then moved to dismiss the case against appellant. The prosecution refiled the firearm charge against appellant after the grand jury indicted appellant and 10 other individuals on multiple gang-related charges. The prosecution explained that after BNT members committed other crimes including murder, "the District Attorney's Office decided to investigate all past crimes of BNT that fell within the appropriate statute of limitations" as a "response to the violent nature of BNT." "On December 1st, 2009, grand jury proceedings began against members and associates of the BNT gang and their past crimes that fell within the statute of limitations."
We hereby grant appellant's unopposed request for judicial notice of the minute order from the April 20, 2006 hearing.
Appellant complains that Bibbs and the confidential informant died between the time of the offense and the prosecution. Neither Bibbs nor the informant, however, was likely to provide any exonerating evidence. In People v. Catlin, supra, 26 Cal.4th 81, the California Supreme Court held that a nine-year delay between the death of the defendant's wife and the date he was charged with first-degree murder did not deny the defendant a fair trial or due process of law. (Id. at pp. 109-110.) The defendant, who was convicted of murdering his wife, claimed on appeal that the prosecution's delay in charging him prejudiced him because two of the individuals who had presumably attended the victim's autopsy had died before trial. The court held there was no due process violation, noting that the defendant's claims of prejudice were "weak" because there was "no evidence suggesting that [the two deceased witnesses] would have testified favorably to the defense." (Id. at p. 109.)
Appellant suggests that Bibbs could have corroborated his claim that he was unaware of the presence of the assault rifle until the police arrived. Like appellant, however, Bibbs claimed he did not know the rifle was in the minivan; he told officers that no one said anything about the gun, and said, "I didn't see that gun, no sir," and "I know nothing . . . about that [rifle]. That's not mine." Given that Bibbs was being charged with various gang-related charges, he would likely have invoked his Fifth Amendment right against self-incrimination. Moreover, because Bibbs claimed to have no knowledge about the rifle, even in the unlikely event he would have testified, he would not have been able to provide testimony helpful to appellant. The trial court reasonably determined appellant had not shown prejudice because it was "speculative Bibbs would say anything different than he did in his statement." (People v. Reeder, supra, 152 Cal.App.3d at p. 910 ["Such unsupported conclusionary assertions based upon [speculation] are insufficient to establish actual prejudice"].)
As to the confidential informant, appellant asserts the informant "would have been useful to impeach Sgt. Yu [to whom the informant told that the minivan would appear at B&J Burger] at the motion to disclose the informant, the motion to suppress and at the trial . . . ." However, the trial court granted the initial motion to disclose the informant, and appellant does not explain why it would have been helpful to disclose the informant's identity after he died. Likewise, appellant has not demonstrated any likelihood that impeaching Yu's testimony would have cast doubt on the confidential informant's reliability or would have created a different result. As for appellant's contention that the confidential informant could have impeached Yu at trial, we note Yu did not even testify. He was merely mentioned a few times to explain the coordination of the officers before the arrests. Moreover, the informant died in 2007—the year after appellant was arrested on the present matter. Thus, while appellant repeatedly mentions the charging delay of three years and eight months, the confidential informant would have been unable to testify at the suppression hearing even if the delay was much shorter.
Appellant next claims he was prejudiced by the fading memories of the police officers who testified. He points out, for example, that "Officer Ellis thought the gun was further forward in the van than depicted in the photograph." He asserts that the location of the rifle was a "central issue" in the case because its location in the rear of the minivan supported his position that he, as the driver in the front seat, did not know the rifle was inside the minivan. He argues, "The lack of clear memory on this central point was a product of the prosecution's delay." Although Officers Gerald Lyons and Mike Ellis both initially testified that they thought the rifle was closer to the front of the van and to appellant, they conceded when confronted with photographs that the rifle was actually at the back of the minivan. The concession was corroborated not only by those photographs, but also by the testimony of other officers, including that of Ellis who acknowledged that the photograph was taken for the purpose of preserving the location of the rifle as of the time it was found. Thus, there was no real dispute over the location of the rifle. Appellant's implication that the officers' memories of the location of the rifle would have been clearer at an earlier time—and therefore helpful to his defense—is speculative.
As other examples of fading memories, appellant states, "Officer Scott could not remember how long the officers waited before approaching the van, the names of all the officers who were present and the sequence of events once the detention, search and arrest began." "Officer Ellis could not remember who was removed from the van first or how Bibbs exited the van." "Sgt. Ali did not remember which suspect he removed from the van." "He could not recall when the photo of the gun was taken or who had been sitting in the two front seats." Appellant does not explain, however, how these lapses in memory harmed him.
Finally, appellant claims he lost the opportunity to serve concurrent sentences with an unrelated conviction. Appellant, however, offers no authority for the proposition that he had a due process right to serve concurrent terms for unrelated crimes. In fact, he concedes that in People v. Lowe (2007) 40 Cal.4th 937, 942, 945, our Supreme Court rejected the contention that, under California Constitution's speedy trial right, the loss of the possibility of concurrent sentencing alone is sufficient to meet the defendant's initial burden to demonstrate prejudice. Moreover, it is speculative to say he would have been entitled to serve concurrent sentences. (People v. Lowe, supra, 40 Cal.4th at p. 946.) Under some circumstances, the imposition of concurrent sentences is legally barred. (See, e.g., §§ 667.6, subd. (d); 1170.12, subds. (a)(6)-(a)(7).) Even when concurrent sentences are permitted, they often are not imposed because of the presence of certain aggravating factors. (Cal. Rules of Court, rule 4.425). Furthermore, when a sentencing court has discretion, it may choose not to run sentences concurrently. We conclude appellant has failed to meet his burden of showing prejudice, and that the trial court did not abuse its discretion in denying the motion to dismiss the information.
To the extent appellant also claims the trial court erroneously required him to demonstrate the prosecutor acted in bad faith, we note we have reviewed the record and do not agree the court misunderstood or misapplied the law. The fact that the court noted at one point, "I don't think there's any showing of bad faith involved by law enforcement in the delay that's involved here" does not mean the court believed it was appellant's burden to prove bad faith. Rather, the court merely stated a relevant finding for the record. The court then proceeded to address the main issue, stating, "In looking at the issue of prejudice, there are . . . several different factors." --------
2. Appellant's Gang Admission
As noted, San Francisco Deputy Sheriff Rebecca Lee testified that when she interviewed appellant on February 27, 2010 for jail classification purposes, appellant told her he was from Hunters Point and said, " 'I'm BNT.' " San Francisco Senior Deputy Sheriff Al Jang testified that when he interviewed appellant for the same purpose on August 7, 2004, appellant said, "I'm not a member, but I hang around with [Big Block].' " At trial, appellant objected to the admission of his February 27, 2010 statement to Lee. The trial court ruled the statement was admissible because Lee's questions were not designed to elicit incriminating responses. The court noted appellant was capable of answering the questions in a non-incriminating way, as he did to Jang when he said he associated with gang members but was not himself a member.
On appeal, appellant contends the trial court violated his Miranda rights by admitting his booking statement to Lee that he was a member of BNT. We agree the court erred but conclude the error war harmless beyond a reasonable doubt. In People v. Elizalde (2015) 61 Cal.4th 523, 527 (Elizalde), the California Supreme Court addressed "whether routine questions about gang affiliation, posed to [a] defendant while processing him into jail on murder charges, come within Miranda's well-recognized booking exception." The court held that gang-affiliation questions do not fall within the narrow exception for biographical data necessary for booking or pretrial services. (Elizalde, supra, 61 Cal.4th at p. 531.) Instead, booking questions must be measured under a test defining "interrogation" as questioning that law enforcement should know is reasonably likely to elicit an incriminating response. (Id. at pp. 531-532.) The gang-affiliation questions posed to the defendant in Elizalde required Miranda advisements because they were reasonably likely to elicit an incriminating response given California's criminal gang statutes and the defendant's pending charges—murder—which is "a crime frequently committed for the benefit of criminal street gangs." (Id. at pp. 538-540.)
Similarly, appellant was arrested for and charged with gang-related charges. As such, his gang-affiliation statements were likely to elicit incriminating responses and were inadmissible in the prosecutor's case-in-chief absent evidence of Miranda advisements. Nevertheless, the error was harmless beyond a reasonable doubt because there was overwhelming evidence that appellant participated in and assisted a criminal street gang. (Elizalde, supra, 61 Cal.4th at p. 542 [standard of review for prejudice].)
There was extensive expert testimony supporting a finding that BNT was a criminal street gang. Appellant's gang membership was convincingly established by photographic evidence of appellant throwing BNT hand signs, the in-court display of appellant's gang-related tattoos, his association with known BNT members, his multiple police contacts in BNT territory, and his extensive and intimate knowledge of BNT gang activity, including participation in several of its criminal activities. There was expert testimony that gang signs and tattoos are important indicators of gang membership. Appellant admitted to police that he and his three associates were on their way to conduct a large, illegal drug deal. Under the harmless error test set forth in Elizalde, appellant suffered no prejudice.
3. Gang Enhancement
Appellant contends there was no substantial evidence supporting the jury's true finding on the gang enhancement allegation. We disagree.
" 'When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.' " (People v. Hill (1998) 17 Cal.4th 800, 848-849.) The reviewing court "must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.) Reversal is warranted only where it clearly appears that "upon no hypothesis whatever is there sufficient substantial evidence to support" the conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.) The defendant bears the burden of affirmatively demonstrating that the evidence is insufficient. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
A gang enhancement can be imposed on a defendant who "is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) " '[C]riminal street gang' means 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 . . . 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).) A " 'pattern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" enumerated offenses. (§ 186.22, subd. (e).) "In order to prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs." (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.)
As detailed above, prosecution expert Broberg, who was a San Francisco Police Officer and Gang Task Force member, thoroughly explained the bases for his opinion that BNT was a criminal street gang, that appellant was a member, and that he committed the offense for the benefit of his gang. Broberg's testimony about BNT as an "ongoing organization, association, or group of three or more persons" with "a common name or common identifying sign or symbol," with members who engage "in a pattern of criminal gang activity," (§ 186.22, subd. (f)), provided the jury with ample evidence to determine that BNT was a criminal street gang. Broberg also testified at length about appellant's involvement with BNT, including, for example, the fact that appellant was associating with BNT members in 2006 and was present in BNT territory, was seen in multiple photographs throwing BNT hand signs with other BNT members, and had extensive and detailed knowledge of many gang-related activities. Appellant had Osceola gang tattoos, which were shown to the jury. Drummer testified that appellant robbed him at gun point and threatened him because he was associating with rival gang members. Appellant admitted during his post-arrest interview that he and the other three individuals in the minivan were about to make a large drug deal—a typical gang offense (see § 186.22, subd. (e)(4)). Further, the crime charged—transporting an assault rifle—was also a typical gang offense (see § 186.22, subd. (e)(23), (31)-(33)). There was ample evidence to support the jury's true finding on the gang enhancement allegation.
Appellant acknowledges that Broberg presented "extensive" evidence but argues his analyses were flawed and prejudicial. He asserts, for example, that by testifying that appellant was a gang member because he associated with gang members, Broberg "failed to recognize the possibility that a young man growing up in an isolated neighborhood would have such contacts [with gang members] as a matter of course and not as a choice to enter a criminal career." Appellant also argues that Broberg failed to make a distinction between an associate and a member of a gang. He claims that Broberg's theories were "not logically sound" and that he "usurped the jury's role and told jurors how to decide the case."
The jurors, however, were properly instructed that they "must consider the opinions [of experts], but . . . are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. . . . You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence." The issue of whether Broberg's testimony was unreliable or illogical, or whether his analyses and conclusions were flawed, was for the jury to decide.
Appellant also argues that Broberg improperly "took hearsay evidence at face value, without objective evaluation of its reliability or weight, except when it did not support his pre-determined position that appellant acted to benefit a gang." With respect to the hearsay rule, our Supreme Court in People v. Sanchez (2016) 63 Cal.4th 665, 676, drew a distinction between "an expert's testimony regarding his general knowledge in his field of expertise," and "case-specific facts about which the expert has no independent knowledge." The former is not barred by the hearsay rule, even if it is "technically hearsay," while the latter is. (Ibid.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Ibid.) Appellant does not state what "case-specific facts" on which Broberg improperly relied. In fact, the record shows that Broberg, who was a long-time San Francisco Police Officer and member of the Department's Gang Task Force, relied on his extensive personal knowledge about appellant's history and BNT's activities in opining that appellant was a BNT member who committed the offense for the benefit of his gang. Viewed in the light most favorable to the prosecution, there was sufficient evidence for the jury to find that appellant transported the assault rifle for the benefit a criminal street gang.
DISPOSITION
The judgment is affirmed.
/s/_________
McGuiness, P.J. We concur: /s/_________
Pollak, J. /s/_________
Siggins, J.