Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA305375. George G. Lomeli, Judge.
Ann Krausz, 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, Margaret E. Maxwell and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P. J.
A jury convicted William Lee Green (appellant) of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) (count 1); carrying a loaded firearm (§ 12031, subd. (a)(1)) (count 2); and possession of cocaine base for sale (Health & Saf. Code, § 11351.5) (count 3). With respect to all counts, the jury found true the allegation that appellant had committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1).) The trial court found true the allegation that appellant had suffered two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a).
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced appellant to nine years in state prison. The sentence consisted of the midterm of four years in count 3 with an additional three years pursuant to Health and Safety Code section 11370.2, subdivision (a) and an additional two years for the gang enhancement. In count 2, the court imposed a concurrent midterm of two years and the low term of two years on the gang enhancement. The court stayed the sentence and gang enhancement in count 1 pursuant to section 654.
Appellant appeals on the ground that the true finding on the gang enhancement was not supported by substantial evidence, and he therefore suffered a violation of his right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution.
FACTS
On July 2, 2006, at approximately 11:00 p.m., Officers Michael Messenger and John Harrison of the Los Angeles Police Department were in uniform and driving northbound on Griffith Avenue in an unmarked police car. Appellant was standing on the sidewalk of Griffith Avenue, and he turned and ran when he looked in the direction of the police car. Before he ran he placed his right hand at his waist. The officers chased appellant into a four-unit apartment building and into the unit numbered 2612½ Griffith Avenue. When Officer Harrison opened the screen door to 2612½, he saw appellant standing at the bottom of a stairwell. Appellant was holding a .38-caliber blue steel revolver in his hand, and he dropped it as he ran up the staircase. Appellant did not comply with the officer’s order to stop.
Officer Messenger had gone to the back of the unit, and he saw appellant pass another male, later identified as Aaron Crawford (Crawford), at the top of the stairs. Appellant told Crawford to run because the police were there. Appellant and Crawford ran into another unit of the complex. Officers Messenger and Harrison called for backup.
Cheryun Whitaker (Whitaker) was living in another unit in the complex, and she heard running outside her door. Appellant, Crawford, and Whitaker’s brother, Isaiah, whose real name was William Coney (Coney), ran inside her apartment. When additional police support arrived and a perimeter had been established, police ordered the occupants of Whitaker’s apartment to come outside. Everyone except Coney came out, and officers eventually found him hiding inside.
Officer Messenger later recovered the gun appellant dropped and saw that the gun was loaded. Police took appellant into custody. At booking, appellant was wearing a white tank top, red pants, a red belt, and a red baseball cap. He acknowledged carrying narcotics between his buttocks, and he removed a clear plastic baggie containing five off-white colored rocks. Analysis confirmed that the rocks consisted of 2.03 grams of cocaine base.
At appellant’s trial, Officer Patrick Rudolf testified as a gang expert. Based on his years of experience at the Newton Division, Officer Rudolf was of the opinion that the Rollin’ 20s Outlaws was a Blood criminal street gang that identified with the color red. He described the gang’s hand signs and the names the gang adopted for itself, such as “20,” “OTWS,” “Outlaws,” and “R20.” Officer Rudolf said that the gang had 30 to 40 members in the Newton area where appellant was arrested. Newton was within the gang’s territory as shown by the tagging on the sidewalks, sign posts, telephone poles, and other physical features. Based on Officer Rudolf’s experience of investigating narcotics crimes in Newton, he concluded that the area was one of high drug use and sales.
Officer Rudolf testified that the Rollin’ 20s Outlaws had as their primary activity committing crimes such as narcotics possession, possession of narcotics for sale, weapons violations, possession of handguns, assault with a deadly weapon, and attempted murder. Officer Rudolf was of the opinion that appellant was a member of the Rollin’ 20s gang because he had admitted membership to Officer Rudolf and also to Officer Jose Diaz on June 18, 2006. In addition, appellant had gang tattoos, such as the numbers “2” and “0” on his left and right upper arms, respectively, in numbers approximately three to six inches in height.
Officer Rudolf believed that appellant possessed the cocaine base for purposes of sale. He also was of the opinion that the current crimes of possession of cocaine and a firearm were committed to benefit the gang.
DISCUSSION
I. Appellant’s Arguments
Appellant contends that the evidence presented in this case on the issue of whether the Rollin’ 20s gang was a gang within the meaning of section 186.22 did not rise to the level of substantial evidence. He asserts it is impossible to determine whether the testimony regarding gang activity was reliable, since the basis of Officer Rudolf’s general testimony might have consisted of reliable sources, such as court records, or entirely unreliable hearsay. Appellant maintains that “[c]onclusional testimony that gang members have previously engaged in the enumerated offenses, based on non-specific hearsay and arrest information which does not specify exactly who, when, where and under what circumstances gang crimes were committed, does not constitute substantial evidence.”
Appellant also contends that Officer Rudolf’s vague testimony that gang members sell drugs was not sufficient to prove that appellant was selling drugs for the benefit of, at the direction of, or in association with the gang with the required specific intent. According to appellant, a true finding on a gang allegation requires more evidentiary support than the defendant’s mere association with the gang or his record of prior offenses. Appellant argues that the instant offenses were not intrinsically gang-related, and the prosecutor presented no facts linking the sales to the gang. Therefore, appellant’s gang membership was not sufficient to establish that the crimes were gang-related without specific evidence that the sales were intended to benefit the gang rather than defendant personally.
II. Relevant Authority
“In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: ‘[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.] The United States Supreme Court has held: ‘[T]his inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] . . . . The California Supreme Court has held, ‘Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citations.]” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)
Subdivision (b) of section 186.22 provides enhanced punishment for certain gang-related crimes. “‘[T]o subject a defendant to the penal consequences of [section 186.22, subdivision (b)], the prosecution must prove that the crime for which the defendant was convicted had 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 (Hernandez); People v. Gardeley (1996) 14 Cal.4th 605, 616–617 (Gardeley).)
“‘In addition, the prosecution must 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).)’” (Hernandez, supra, 33 Cal.4th at p. 1047; Gardeley, supra, 14 Cal.4th at p. 617.)
III. Evidence Sufficient
We conclude Officer Rudolf’s testimony amply supports the jury’s true findings on the gang allegations. Officer Rudolf’s sources, which included his own vast experience, his contacts with gang members, and information from other law enforcement officers, constituted a reliable basis for his opinion. His opinion, in turn, provided substantial evidence in support of the true findings.
A. Evidence of Gang’s Status as a Criminal Street Gang
The culture and habits of criminal street gangs are matters “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a); Gardeley, supra, 14 Cal.4th at p. 617.) A gang expert, like other experts, may give opinion testimony that is based on hearsay, including conversations with gang members as well as with the defendant. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 (Sengpadychith); Gardeley, supra, at pp. 618, 620.) Such opinions may also be based upon the expert’s personal investigation of past crimes by gang members and information about gangs learned from the expert’s colleagues or from other law enforcement agencies. (Sengpadychith, supra, at p. 324; Gardeley, supra, at p. 620.). A gang expert’s overall opinion is typically based on information drawn from many sources and on years of experience, which in sum may be reliable. (Gardeley, supra, at p. 620.) Even matter that is ordinarily inadmissible can form the basis for a gang expert’s opinion testimony. (Id. at p. 618.)
Here, Officer Rudolf, a police veteran of 13 years who has worked in both gang and narcotics units and has testified “at least a hundred times” as a gang expert, testified that the Rollin’ 20s Outlaws Bloods is a criminal street gang with three or more members (with 30 to 40 being in Newton itself). He described their territory, symbols, and names. He stated that the Rollin’ 20s Outlaws Bloods have, as one of their primary activities, the commission of crimes listed in section 186.22, subdivision (e). When asked to name “one or two” that fell within the statute, he replied that nearly the entire gamut of crimes was committed by gang members, from vandalism to homicide. He then stated that the most consistent crimes that he had seen personally and investigated the gang for were “narcotics, narcotics possession, narcotics possession for sales, sales, weapons violations, possession of a handgun, assault with a deadly weapon, attempt murder, manufacturing narcotics, things of this nature.” “The testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang’s primary activities.” (People v. Duran (2002) 97 Cal.App.4th 1448, 1465; see also Gardeley, supra, 14 Cal.4th at p. 620.)
The prosecutor introduced certified prior convictions for two men whom Officer Rudolf knew as members of the Rollin’ 20s Outlaws Bloods by their own admissions to him and to other officers. Both were convicted of crimes listed in section 186.22, subdivision (e), i.e. possession of marijuana for sales (Health & Saf. Code, § 11359) and possession of cocaine base for sales (Health & Saf. Code, § 11351.5; § 186.22, subd. (e)(4).) These convictions occurred within three years of the instant offenses. Thus Officer Rudolf’s testimony fulfilled the requirements of section 186.22, subdivision (f) and was a proper basis for the jury’s finding that the Rollin’ 20s Outlaws was a criminal street gang.
In re Alexander L. (2007) 149 Cal.App.4th 605, on which appellant relies for his first point, is clearly distinguishable. The gang expert in that case “testified generally about the benefits graffiti might create for a gang, such as intimidating rivals. He also stated his opinion that Varrio Viejo was an active street gang as of the date of Alexander’s arrest. When asked about the primary activities of the gang, he replied: ‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’ No further questions were asked about the gang’s primary activities on direct or redirect examination.” (Id. at p. 611.) The prosecutor in the instant case, however, elicited specific information from Officer Rudolf about particular crimes committed by gang members, and the officer testified that he had personally investigated and seen crimes committed by Rollin’ 20s gang members. The prosecution presented certified minute orders of the convictions in the predicate offenses, and Officer Rudolf stated he had spoken to the officers and read the police reports regarding the arrests. And unlike the expert in In re Alexander L., Officer Rudolf did “directly testify that criminal activities constituted [the gang’s] primary activities.” (Id. at p. 612.) No more was required. (People v. Duran, supra, 97 Cal.App.4th at p. 1465.)
B. Evidence Regarding Appellant’s Intent
With respect to the second part of appellant’s complaint, Officer Rudolf testified that, in his opinion, “both crimes individually, the possession of a firearm by a gang member and the possession of narcotics with the intent to sell by a gang member, benefit the gang.” Officer Rudolf stated that the totality of the circumstances—gun possession, narcotics possession, the area, the red clothing—all led to the conclusion that the crimes were for the benefit of the gang.
According to Officer Rudolf, sales of narcotics is one of the “main money-making” endeavors of gangs, and appellant’s gang specifically. By selling narcotics they can buy more narcotics, rent buildings, and purchase vehicles. Since police make most of the contacts with gang members on the street during the daytime, the gang members clearly do not have regular day jobs, but they have money and are driving new vehicles. The narcotics are their source of income. With the income from narcotics they purchase weapons, show their influence, recruit new members, and distribute money to fellow gang members who are in prison or looking for money for another criminal endeavor. With respect to the weapon possession, the firearm served the gang for intimidation because the main tool of a gang is fear.
The prosecutor presented Officer Rudolf with a hypothetical based on the facts surrounding appellant’s possession of the rocks of cocaine base in this case, and Officer Rudolf was of the opinion that the individual found in possession of five rocks concealed in the person’s buttocks was in possession for the purpose of sales. The fact that the person possessing the rocks had a gun reinforced this opinion. Officer Rudolf said that the area in the hypothetical was controlled by a gang, and if a gang controls an area it controls the drug trade in that area.
The prosecutor also gave Officer Rudolf a hypothetical in which an individual dressed in gang colors in a gang area is in possession of five rocks of cocaine for purposes of sale, armed with a loaded handgun and without paraphernalia or being under the influence. Officer Rudolf stated that the person would be in possession of the handgun and the narcotics for the benefit of the gang because the gang that controls the area would not let anyone come in and sell drugs in their neighborhood. It would be a slap in the face, and there would be repercussions—anything from being beaten to being killed.
The record thus shows that the officer’s testimony was far from vague on the characteristics of the instant crimes, which revealed them to be for the benefit of the gang. Contrary to appellant’s assertion, the crimes committed here are typical of gang crimes. Moreover, the area of the apartment complex is a high gang activity area. From his personal experience, Officer Rudolf knew the apartment complex itself to be a gang hangout. The concentration of tagging marking the neighborhood as belonging to the Rollin’ 20s Outlaws gang was intense at that location. Officer Rudolf knew appellant to be a gang member because he “admitted to me at the time of the investigation he is” and because of his tattoos indicating his affiliation. He also knew of the affiliation from reviewing appellant’s arrest report in a prior offense where appellant was in the presence of other gang members and admitted being a gang member.
This case is distinguishable from In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.), upon which appellant relies. The juvenile in that case was found to have violated section 12020, subdivision (a)(4) by possessing a dirk or dagger. He argued on appeal that there was insufficient evidence to support the court’s finding that he possessed the weapon for the benefit of his gang. (Frank S., supra, at pp. 1194–1195.) In that case the appellate court reiterated that expert opinion testimony allowed under Gardeley does not include testimony that a specific individual possessed a specific intent. (Frank S., supra, at p. 1197.) The expert in Frank S. simply informed the judge of her belief regarding the minor’s intent with possession of the knife. (Id. at p. 1199.) The prosecutor did not present any evidence that the minor was in gang territory or had any reason to use the knife in a gang-related offense. (Ibid.) The decision in Frank S. is distinguishable because of the abundant circumstantial evidence of appellant’s conduct and specific intent in this case—evidence that was lacking in Frank S. In addition, Officer Rudolf did not usurp the function of the trier of fact by stating his opinion of appellant’s specific intent.
We conclude there was sufficient evidence in support of all elements required to prove a gang allegation under section 186.22, subdivision (b), and we therefore conclude there was no violation of due process. (In re Winship (1970) 397 U.S. 358, 364 [Due Process Clause protects against conviction except on proof beyond a reasonable doubt of every fact required to constitute the charged crime].) Appellant’s arguments are without merit.
DISPOSITION
The judgment is affirmed.
We concur: J., ASHMANN-GERST, J. CHAVEZ