Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA 294174, Judith L. Champagne, Judge.
Robert Derham, 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, Senior Assistant Attorney General, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, Acting P.J.
Defendant Shawn Jackson timely appealed his conviction on count one and count three of willful, deliberate, and premeditated attempted murder, in violation of Penal Code section 664/187, subdivision (a) and count five of shooting at an inhabited dwelling, in violation of Penal Code section 246. As to each count, the jury found true the special allegations that the defendant personally and intentionally discharged a firearm and the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang. As to count one, the court imposed a term of 15 years to life plus 20 years pursuant to section 12022.53, subdivision (c). As to count three, the court imposed a term of 15 years to life plus 20 years pursuant to section 12022.53, subdivision (c). The court set the sentence on count three to run consecutively to count one. Finally, as to count five the court imposed a term of 15 years to life, set to run concurrently with counts one and three. Defendant contends that there was insufficient evidence to support the gang allegations, specifically the primary activities element of a criminal street gang. We affirm.
All statutory references are to the Penal Code.
FACTUAL BACKGROUND
On November 19, 2005, Courtney Campbell Jr.’s family threw him a party at their home to celebrate his 16th birthday. Over 100 people were present at the Campbell home. At approximately 10 p.m., appellant and six to eight friends arrived at the party. Appellant and his friends belonged to the By Yourself Hustler Crips gang. Upon arriving, appellant and his friends proceeded to the dance floor where they threw up gang signs and harassed other partygoers. In response to this behavior, Courtney’s father approached appellant and told him to leave the party. Appellant refused to leave. Courtney’s father responded by shutting down the whole party. Appellant was upset that he was told to leave the party in front of a large group of people and reluctantly exited the property.
Shortly thereafter, appellant returned to the Campbell home carrying a concealed shotgun in the sleeve of his hooded sweatshirt. Appellant chased Courtney and his friend Marc Wilson to the back of the family home. The two ran into the home through a screen door and were immediately shot at by appellant.
DISCUSSION
Appellant contends that there is insufficient evidence to support a finding that the crimes were committed for the benefit of a criminal street gang pursuant to the California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.).
Seeing a crisis of gang violence erupting in many of its communities, the California Legislature passed the California Street Terrorism Enforcement and Prevention Act. (§ 186.21; see also In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1000.) The act was designed to prevent violent gangs from engaging in criminal activities and terrorizing the communities they inhabit. (§ 186.21.) Section 186.22, subdivision (b)(1) allows for a gang enhancement if a person committed a felony “for the benefit of, at the direction of, or in association with any criminal street gang.”
In order to qualify as a criminal street gang, three elements must be satisfied. First, there must be an ongoing association involving three or more participants, having a common name or common identifying sign or symbol. (People v. Vy (2004) 122 Cal.App.4th 1209, 1222.) Second, the group has as one of its primary activities the commission of one or more specified crimes. (Ibid.) Finally, the group’s members either separately or as a group have engaged in a pattern of criminal gang activity. (Ibid.) The sole issue on appeal is whether there was sufficient evidence to satisfy the primary activities prong of the gang enhancement statute.
In determining whether the evidence was sufficient to support a gang enhancement, the court must “‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence.’” (People v. Vy, supra, 122 Cal.App.4th at p. 1224.) Substantial evidence is defined as “‘evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (Ibid.)
Specifically, substantial proof of a gang’s primary activities may consist of evidence that the gang’s members “consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony.” (Italics deleted.) (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) Because the average juror will not have common knowledge about gang activities, expert opinion testimony is relevant to assist the trier of fact. (People v. Gardeley (1996) 14 Cal.4th 605, 617.) It has long been held that expert testimony may be used to prove the primary activities element of a gang enhancement. (People v. Vy, supra, 122 Cal.App.4th at p. 1223; People v. Martinez (2008) 158 Cal.App.4th 1324, 1330.)
For expert testimony to qualify as substantial evidence, the testimony must be based on reliable information. Police officers testifying as gang experts may base their testimony on conversations with gang members as well as information from colleagues and other law enforcement agencies. (People v. Gardely, supra, 14 Cal.4th at p. 620; see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 [holding that “gang experts presented an adequate foundation for their opinions where they based their testimony on ‘personal observations of and discussions with gang members as well as information from other officers and department files.’”]; People v. Martinez, supra, 158 Cal.App.4th at p. 1330 [gang expert’s eight years of dealing with the gang, including investigations and personal conversations with members and review of reports, suffices to establish the foundation for his testimony].)
Here, appellant relies on In re Alexander L. to support his claim that there was insufficient evidence to support the gang enhancement. That case is inapposite. In Alexander, the court could not determine whether the expert’s testimony was based on reliable information because information establishing reliability was never elicited from him at trial. (In re Alexander L. (2007) 149 Cal.App.4th 605, 612.) The expert was asked about the gang’s primary activities and simply responded that he knew the gang had been involved in murders, auto thefts, auto/vehicle burglaries, felony graffiti, and narcotic violations. (Id., at p. 611.) However, at no time did the expert explain what information he relied on in forming his opinion. (Id., at p. 612.) Because the testimony lacked proper foundation, the court in Alexander held that the expert’s conclusory testimony could not constitute substantial evidence as to the gang’s primary activities. (Ibid.) Appellant asserts that the gang expert’s testimony in the case at bar contains no more substance than that of the gang expert in Alexander. This contention is not supported by the record.
Unlike the expert testimony provided in Alexander, in the case at bar, Officer Jose Torres based his testimony on proper foundation. At the time of trial, Officer Torres had testified as a gang expert on four prior occasions. As the prosecution’s gang expert, Officer Torres testified that he has been a sworn peace officer for eight years. For two years of those years, Officer Torres was assigned to the Wilshire division gang unit. While assigned to the gang unit, Officer Torres was the primary officer charged with monitoring the By Yourself Hustler Crips gang, of which defendant is a member. Over that two year period, Officer Torres testified that he had made contact with over 400 to 500 gang members. Sixty to 70 of those contacts were with members of the By Yourself Hustler Crips gang. Officer Torres testified that as part of his daily duties as a gang officer he was required to go into the field and speak with gang members in order to gather gang intelligence pertaining to new gang activity that might have transpired and to identify new gang members.
After providing the jury with the foregoing testimony, the prosecutor asked Officer Torres, “What are the primary activities of the By Yourself Hustler Crips?” to which he responded, “They’re involved in narcotics sales. They’re involved in attempt [sic] murders, murders. They’re involved in vandalisms, and also burglaries.” Moreover, to substantiate the primary activities of the By Yourself Hustler Crips Gang, Officer Torres brought two minute orders recording the convictions of two other By Yourself Hustler Crips members. One was the conviction of Deandre Belton for a felony robbery and the other of Quentin Allen Mayo for murder on April 7, 2004. (See People v. Martinez, supra, 158 Cal.App.4th at p. 1330 [holding that gang members’ past or current conduct in committing one of § 186.22, subd. (f)’s delineated crimes is relevant to show primary activities].) Unlike the expert testimony in Alexander, the testimony provided by Officer Torres properly rested on reliable information. Based on these facts, there is sufficient evidence of the gang’s primary activities to support a finding by the jury that the gang enhancement was true.
DISPOSITION
The judgment is affirmed.
We concur: ZELON, J. JACKSON, J.