Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 06WF1897, Richard M. King, Judge.
Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Stephanie H. Chow and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
A jury convicted defendant Jerry Huy Huynh of being a felon in possession of a firearm and street terrorism. It also found true the allegation he committed the crime for the benefit of or in association with a criminal street gang. The court found he had a prior serious felony conviction. Defendant was sentenced to 12 years in state prison. He appeals, contending the evidence was insufficient to support the true finding on the gang enhancement under Penal Code section 186.22, subdivision (b)(1) (all further statutory references are to this code) and his conviction for street terrorism under section 186.22, subdivision (a). He also asserts the prosecution’s gang expert was impermissibly allowed to testify defendant was actively participating in a gang while possessing the firearm and that the instructions on this issue were ambiguous. We find no error and affirm.
FACTS
In July 2006, police officer Philip Schmidt saw a car parked crooked with the windows halfway down and the engine running. Defendant and Sonny Ton were asleep inside in the driver’s and front passenger’s seats, respectively. The odor of alcohol emanated from the car and Ton appeared to be under age. Schmidt yelled for them to wake up and when neither responded, he reached into the car, turned off the ignition, and shook defendant’s shoulder. Defendant and Ton woke up and gave Schmidt their driver’s licenses. Schmidt returned to his patrol car, scanned the licenses, and called for backup.
Defendant agreed to a search of the car and stepped out at Schmidt’s request. As Schmidt patted him down, defendant appeared nervous and his hands started shaking. Schmidt saw Ton place his left hand into his pants pocket and warned police officer Michael Zannitto, who had arrived as backup and was starting a pat down search of Ton. Ton told Zannitto he had something illegal and was reaching into his pocket to give a gun to him. Zannitto grabbed Ton’s hands, looked into his left pants pocket, and pulled out a loaded gun. Ton told Zannitto the gun was not his and that defendant had handed it to him when Schmidt went back to his patrol car to scan their driver’s licenses. Ammunition of the same caliber as the gun and a can of gun oil were found in the glove compartment of the car.
Defendant was arrested and taken to the police station. He told Schmidt he had been a member of the Caddie Lost Boys for three-to-four years and identified the gang’s current allies and rivals. But he said he had not associated with the gang after he had gotten out of jail two months ago. Although defendant initially claimed the gun belonged to Ton, he later admitted it was his and that he had given Ton the gun because he was not allowed to possess a handgun while on probation. Defendant said he had bought the gun from a former drug dealer because members of the Hit Man Group or H Group had shot at him two weeks earlier and also six or seven months before he had gone to jail. He kept the gun for protection against rival gang members and did not report the shooting incidents to the police because he did not want a problem.
Ton denied being a member of the Caddie Lost Boys. He testified he had known defendant for two months. He remembered seeing the gun “[a] couple weeks before” at defendant’s brother’s house.
According to gang expert detective Tim Walker, the Caddie Lost Boys, also known as C.L.B, had about 10-15 active members. Ton was not a documented C.L.B. member, although Walker had contacted him before along with active members. Walker would have to conduct a more thorough background search before he could determine whether Ton was an active participant in the gang.
One of the gang’s main rivals was Hit Man Group or H Group. In summer 2005, H Group shot at C.L.B. members, and in response C.L.B. hunted H Group for a week with handguns and other weapons.
C.L.B.’s primary activities were assaults with deadly weapons and possessing drugs for sale. Violence enhances the reputation of a gang member and the gang as a whole and guns are “tool[s] used to create violence”; the greater the violence, the greater their reputations are enhanced.
A common symbol used by C.L.B. is the number 3112. The number 3 stands for letter C, 11 for L, and 2 for B. Defendant had 3112 tattooed on his forearm as well as a tattoo of five dots, which is common in Asian gangs.
Asian gangs typically do not claim a particular territory. They may congregate in certain areas “but by no means do they claim that as their turf.” Defendant was found with a gun loitering in an area where his gang was known to congregate, although he lived only two blocks away.
Inside defendant’s car, the police found a letter, dated the week before, stating, “Say hello to all the Cadillacs,” which is what C.L.B. members call themselves. Additionally, in April 2006, defendant signed a court document admitting he was an active participant in the gang during an incident in December 2005.
Based on these factors, Walker opined defendant was an active participant of C.L.B at the time he was arrested. The parties stipulated C.L.B. was a criminal street gang engaged in a pattern of criminal activity, including the sale of illegal narcotics, and that defendant knew this. They further stipulated defendant had previously been convicted of a felony.
DISCUSSION
1. Gang Enhancement
To establish the gang enhancement, the prosecution had to prove (1) the crime was “for the benefit of, at the direction of, or in association with” a criminal street gang, and (2) that the defendant had “the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) Defendant contends the evidence was insufficient to support either prong. We disagree.
a. Intention to Promote, Benefit, or Assist C.L.B.
The crime must be “‘gang related,’ that is, it must have been committed, in the words of the statute, ‘for the benefit of, at the direction of, or in association with’ a street gang.” (People v. Gardeley (1996) 14 Cal.4th 605, 622.) Neither a defendant’s mere membership in a gang, nor a gang expert’s testimony alone, is sufficient. (Id. at pp. 623-624; People v. Farraez (2003) 112 Cal.App.4th 925, 931.) Rather, “the record must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.” (People v. Martinez (2004) 116 Cal.App.4th 753, 762.)
Defendant compares the present case to In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 (Frank S.), where the court overturned the juvenile court’s finding that the minor possessed an illegal weapon with the specific intent to promote, further, or assist in any conduct by gang members. The minor, who had been found with a knife, a small bindle of methamphetamine, and a red bandana, told the arresting officer he had been attacked two days earlier and he needed the knife for protection against gang members who believed he supported a rival gang. A gang expert testified the minor was an active member of the rival gang and that he had the knife to protect himself, which benefited his gang.
The appellate court reversed the enhancement, finding that “nothing besides weak inferences and hypotheticals show the minor had a gang-related purpose for the knife.” (Frank S., supra, 141 Cal.App.4th at p. 1199.) “[U]nlike in other cases, the prosecution presented no evidence other than the expert’s opinion regarding gangs in general and the expert’s improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang . . . .’ [Citation.] The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor’s statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor’s specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.” (Ibid.)
Here, in contrast, the prosecution presented evidence from which the jury could infer defendant committed his crime for the benefit of his gang. Asian gangs may not typically claim a particular territory, but defendant was found with a gun loitering in an area where his gang is known to congregate, despite the fact he lived only two blocks away. Additionally, although Ton was not a documented C.L.B. member, the jury could have found he was associated with the gang given that Walker had contacted him before along with active members.
The jury also could have determined defendant expected to use the gun in a gang-related offense. Members of the rival gang H Group had shot at him both before and after he had gone to jail. Rather than report the incidents to the police, defendant bought a gun even though he knew he was violating probation. The jury was not required to believe defendant’s statement he bought the gun for protection. The summer before, C.L.B. members responded to being shot at by H Group by hunting them for a week with handguns and other weapons. The jury could have inferred defendant similarly intended to use the gun for retaliation against H Group members.
While we recognize that it is the duty of the jury to acquit defendant if the circumstantial evidence is susceptible of two reasonable interpretations and one points to innocence, once the jury reaches its verdict we do not reweigh the evidence. Even if we were to conclude that the circumstantial evidence might lead to a different result, reversal is not mandated. Our task is to determine whether any reasonable trier of fact could have reached the same conclusion as the jury. (People v. Holt (1997) 15 Cal.4th 619, 667-668.) We conclude the evidence is sufficient to support the jury’s finding defendant committed his crime for the benefit of his gang.
b. Other Criminal Conduct
Citing Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, defendant argues the second part of the statute requires proof of the specific intent to further some criminal purpose of the gang other than the charged offense. But “federal decisional authority is neither binding nor controlling in matters involving state law. [Citation.]” (Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 55.) Moreover, California courts have rejected Garcia as incorrectly decided. (People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero (2006) 140 Cal.App.4th 15, 19.)
As Romero explained, “By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members,’ rather than other criminal conduct.” (People v. Romero, supra, 140 Cal.App.4th at p. 19.) Romero was followed by Hill, which concluded, “There is no requirement in section 186.22, subdivision (b), that the defendant’s intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits. To the contrary, the specific intent required by the statute is ‘to promote, further, or assist in any criminal conduct by gang members.’ [Citation.] No further evidence on this element was necessary.” (People v. Hill, supra, 142 Cal.App.4th at p. 774.)
Defendant acknowledges these two cases but asserts their interpretation “takes ‘any criminal conduct’ out of context and overlooks the first part of the statute that provides that the defendant must commit the underlying offense with the specific intent to further any criminal conduct.” (Italics omitted.) According to him, that interpretation makes the specific intent requirement “superfluous because any time a person had the requisite intent to commit the underlying offense, the person would intend to further criminal activity.” But there is no surplusage. The statute’s plain language indicates its intent to encompass not only the actual gang-member perpetrator of the criminal conduct but also any other person who had the “the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).)
We also reject defendant’s contention that the interpretation by Romero and Hill eliminates “the gang-related nature of the gang enhancement because any offense by any gang member would qualify under this enhancement.” The gang-related element of the statute is entirely separate from the specific intent aspect and requires the prosecution to prove the crime was committed “for the benefit of, at the direction of, or in association with” a criminal street gang, which is not established by the mere fact a gang member committed a crime. (See Frank S., supra, 141 Cal.App.4th at p. 1199.)
2. Street Terrorism
Section 186.22, subdivision (a) punishes “a person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . .” As the Supreme Court explained, “the substantive offense defined in section 186.22[, subdivision] (a) has three elements. “Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, . . . ‘knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity,’ and . . . the person ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’ [Citation.]” (People v. Lamas (2007) 42 Cal.4th 516, 523.)
Although defendant stipulated to the second element, he contends the first element, active participation, requires “an intent to assist, benefit, or promote the gang or something very similar.” We need not decide whether it does or not because we have already determined there was substantial evidence defendant had that intent in possessing the gun.
Defendant also asserts “no evidence existed [he] willfully assisted other gang members with his firearm possession.” The contention lacks merit. The statute applies to an active gang member who is either the direct perpetrator of felonious gang-related criminal conduct or an aider and abettor. (People v. Ngoun (2001) 88 Cal.App.4th 432, 436.) The jury’s implied determination defendant was an active gang member is supported by his gang tattoos, his knowledge of C.L.B.’s current allies and rivals, the fact he was found in an area where C.L.B. members congregate, and the letter found in his car stating, “Say hello to all the Cadillacs.” Because defendant was the direct perpetrator of a gang-related offense, the conviction for street terrorism is affirmed.
3. Admission of Gang Expert’s Testimony
Defendant contends the trial court abused its discretion by allowing Walker to testify that in his expert opinion defendant was an active participant in C.L.B. while possessing the firearm. Defendant cites the following exchange between the prosecutor and Walker: “Q. [By prosecutor]: “Detective Walker, based on these factors that you’ve told us, the statements that were given to Officer Schmidt by the defendant, the statements that the defendant gave you in December of 2005, the defendant’s tattoos, the letter you received that was found in the defendant’s car, the court documents that you reviewed, taking into consideration the neighborhood where this arrest took place and also taking into consideration that the defendant said that he possessed the gun for use against rival gang members, based on those factors, what is your opinion as to whether or not the defendant was an active participant in the Caddie Lost Boys street gang on July 1st of 2006? [¶] A. It is my opinion it’s a textbook example of a person who was an active participant . . . within the Caddie Lost Boys street gang . . . .” According to defendant, this opinion was “pure speculation” and “Walker was not better qualified than the jury to infer [defendant’s] mental state from the evidence presented.”
The Attorney General responds defendant waived the argument by not specifically objecting that Walker’s testimony “was an improper opinion on the ultimate issue of the case . . . .” But as defendant points out, his “argument is not about the ultimate issue . . ., but rather that the opinion lacked foundation and relevance . . . .” Defense counsel objected on those grounds “in terms of . . . when the officer makes an opinion as to that hypothetical that way, it’s really asking him to give an opinion as to what was in my client’s mind which is speculative.” We conclude defense counsel sufficiently preserved the issue for appellate review.
Regardless, Walker’s opinion was properly admitted because it described a subject sufficiently beyond common experience and was necessary to the jury’s understanding of the issue. (People v. Williams (1997) 16 Cal.4th 153, 195.) And although an expert is not allowed to testify that an individual had a specific intent (People v. Killebrew (2002) 103 Cal.App.4th 644, 658), expert testimony is not objectionable simply because it embraces the ultimate issue to be decided by the jury (People v. Valdez (1997) 58 Cal.App.4th 494, 507-509).
Here, Walker did not say that he knew or had an opinion about defendant’s intent. To the contrary, he opined, as permitted, that the totality of factors listed by the prosecutor presented “a textbook example of a person who was an active participant . . . within the [C.L.B.] street gang . . . .” Walker did not, as defendant contends, testify defendant’s “firearm possession constituted active gang participation in [C.L.B.]” Thus, we reject defendant’s contention Walker “effectively opined that [defendant’s] objective was to actively participate” in the gang, which defendant claims is “not meaningfully distinguishable from an opinion [he] aimed to assist, promote, or benefit [C.L.B.]” For that same reason, defendant’s reliance on People v. Killebrew, supra, 103 Cal.App.4th at p. 658, and Frank S., supra, 141 Cal.App.4th at p. 1198, is misplaced. The experts in Killebrew and Frank S. testified about the subjective knowledge and intent of the defendants. Walker did not.
4. Instructional Error
The court, with defense counsel’s agreement, used CALJIC No. 6.50 to define the elements of street terrorism. In pertinent part it states that “each of the following elements must be proved: one, a person actively participated in a criminal street gang; two, the members of that gang engaged in or have engaged in a pattern of criminal gang activity; three, that the person knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; and four, that person directly, willfully and actively committed the crime of felon in possession of a firearm.” Defendant contends this instruction was deficient because it allowed the jury to convict him “for active gang participation merely because he possessed a weapon and had been an active gang member in the past” and failed to specify that his “active participation” in C.L.B. had to be current. Although defendant did not object to the instruction at trial, we conclude appellate review of this issue is not waived because it affects his substantial rights. (§ 1259; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) Nevertheless, the contention lacks merit.
Defendant failed to recite the entire instruction, which begins by repeating the statutory language, “Every person who actively participates in any criminal street gang with knowledge that the members are engaging in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers or assists in any felonious criminal conduct by members of that gang, is guilty of [street terrorism].” It goes on to define various terms, including “active participation,” which “means that the person must have a relationship with the criminal street gang that is more than in name only, passive, inactive or purely technical.” Both the statutory language and the definition mandate a finding of current active participation in the gang.
The instruction, as given, lacked the ambiguity alleged by defendant and was a correct statement of law. “We must . . . assume the jurors are intelligent persons and capable of understanding and correlating [the] jury instructions . . . .” (People v. Kegler (1987) 197 Cal.App.3d 72, 80.) No error occurred by the trial court’s use of the standard jury instruction defining the crime.
Defendant points to the jury’s question during deliberations as indicating confusion about timing. Referring to the element requiring a pattern of criminal activity, the jury asked, “Does the statement, ‘All of you agree that two or more crimes that satisfy these requirements were committed’ refer to determining gang activity[?]” With defense counsel’s agreement, the trial court responded that the part of the instruction cited by the jury did not apply because the parties had stipulated to the existence of a pattern of criminal gang activity, but that it was a question for the jury to decide the “active gang participation of the defendant.” Defendant maintains this “failed to fix the problem because the court failed to clarify that the active participation had to be at the time of the offense . . . .” But no clarification was necessary because the instruction was not ambiguous.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.