Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. NA066775, Charles D. Sheldon, Judge. Affirmed.
Cynthia L. Barnes, 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, Mary E. Sanchez and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P. J.
Appellant Lionel Temero Jacobs appeals from a judgment entered after the jury convicted him of one count of attempted willful, deliberate, premeditated murder, in violation of Penal Code sections 664 and 187, subdivision (a). The jury found true the allegations that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)); that a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)); and that a principal personally and intentionally discharged a firearm which caused great bodily injury (§ 12022.53, subds. (d) & (e)(1)). The trial court found true that appellant had suffered two prior serious or violent felony convictions (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)).
All further statutory references are to the Penal Code unless otherwise indicated.
CONTENTIONS
Appellant contends that: (1) the evidence presented at trial was not sufficient to support a true finding on the gang allegation; and (2) the trial court erred by admitting gang evidence and evidence of threats to a witness.
FACTS AND PROCEDURAL HISTORY
Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138–1139 (Ceja)), the evidence established the following. On July 20, 2005, Akami Moody dropped her boyfriend Edward Smith, Jr., and his friend John off in front of her house, and drove around the block looking for a parking space. Smith and John sat on the trunk of a car waiting for Moody. Smith was a member of the Rolling 20’s gang and his moniker was “Chaos.”
Appellant, a member of the Insane Crips gang, and another black male walked past Smith and John. Appellant glanced back, said something to the other man twice, and tapped him on the arm. Because Smith thought appellant’s actions were suspicious, he started running away. As he ran, he heard two to seven gunshots and was shot in the forearm. Moody heard the shots and saw flashes. She hid behind a car and appellant and his companion walked by her, laughing. She heard appellant say, “Somebody died tonight.”
At the hospital, Smith told Long Beach Police Officer Rudy Garcia that appellant was the shooter. Smith gave Officer Garcia appellant’s name, his physical description, and said that appellant was a member of the Insane Crips gang. Moody identified appellant as the shooter from photographs, pointing straight at appellant’s picture and saying, “That looks like him.” She told Officer Garcia she got a good look at him.
The morning of trial, Moody called the prosecutor and told her she had received threatening phone calls. The prosecutor sent officers from the Long Beach Police Department to transport Moody to court. At the start of trial, appellant’s counsel requested an Evidence Code section 402 hearing regarding phone calls or threats made to Moody. After the People made an offer of proof, the trial court ruled that Moody’s testimony regarding threats she had received was admissible.
On direct examination, Moody testified that she was not sure appellant was the shooter and that she glanced at the men’s faces as they walked by. She was then asked about and testified as to four phone calls she received prior to trial. One man told her she had a green light on her head and that she needed to be careful. She testified that a green light meant that her life was in danger. She received the second phone call from a male caller who told her not to go to court the next day. She also received a phone call from a girlfriend who told her to be careful, to disguise herself, and not to go home. Moody’s girlfriend told her that she saw men sitting in front of Moody’s house on two occasions when she drove past the house. The morning of the trial, Moody received a call from the mother of a friend who asked if she needed to be put up somewhere or if she needed a ride out of Long Beach. Moody stated that she would be scared when she left the courtroom.
At trial Smith also failed to identify appellant as the shooter. He testified that Long Beach Detective Sean Hunt would not leave him alone until he picked somebody from the photographic six-pack, and that he picked the photo because it was the same one Moody picked.
Detective Hunt testified that he was a member of the gang enforcement unit which specialized in the Insane Crips and the Rolling 20’s gangs. The Insane Crips numbered about 1,200 members, with subset gangs called the Insanes 21st Street, the Insanes 16th Street, and the Baby Insane gang. Appellant was a documented member of the Insane Crips, Insane 21st Street gang, whose main activities were shootings, drug dealing, robberies, and murder. Detective Hunt had seen appellant in the company of other members of that gang numerous times. According to Detective Hunt, in July 2004, the Insane 21st Street gang had many conflicts with the Rolling 20’s gang, including shootings, killings, and disputes over women and property.
Detective Hunt testified that the shooting of Smith occurred in territory claimed by both gangs. Detective Hunt believed that by shooting Smith, appellant sought to intimidate others and arouse fear of the gang. Based on the violence going on between the rival gangs, Hunt believed appellant shot Smith to benefit the gang. This was based on the fact that appellant said something to the other man, then tapped him on the arm; that the two men ran off after shooting Smith; and that they laughed when they walked by Moody, saying, “Somebody died tonight.” Detective Hunt identified as Insane Crips members two men who had just left the courtroom. Detective Hunt also testified that a gang member will not snitch on another gang member because it means that they cannot handle their own problems.
DISCUSSION
I. Substantial evidence supported the true finding as to the allegation that the shooting was committed for the benefit of a gang
Appellant contends that there was insufficient evidence to show that he shot Smith for the benefit of a gang or that he had the specific intent to promote any criminal conduct by gang members. Rather, he urges that Detective Hunt’s opinion that appellant shot Smith for the benefit of the Insane Crips gang was “based on the fact that he believed that each and every crime committed by a gang member is always for the benefit of the street gang.”
“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, 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.’ [Citations.] [¶] . . . . But it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury.” (Ceja, supra, 4 Cal.4th at pp. 1138–1139.)
Section 186.22, subdivision (b)(1), provides for an enhancement where it is proven 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” and that the defendant acted “with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .”
A person with “special knowledge, skill, experience, training, or education” in a particular field may qualify as an expert witness (Evid. Code, § 720) and give testimony in the form of an opinion (Evid. Code, § 801). (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).) In Gardeley, our Supreme Court held that the culture and habits of criminal street gangs are sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Id. at pp. 617–620.) In that case, a gang expert opined that an attack by an African-American gang on a white man who had stopped in the neighborhood where the gang was dealing drugs, was a classic example of a gang using violence to secure its drug-dealing stronghold. (Id. at p. 619.) His testimony was sufficient evidence from which the jury could reasonably conclude that the attack was committed ‘“for the benefit of, at the direction of, or in association with’” that gang, and ‘“with the specific intent to promote, further, or assist in . . . criminal conduct by gang members.”’ (Id. at p. 620; § 186.22, subd. (b)(1).)
While an expert may not testify as to his opinion of the knowledge or intent of a defendant on trial, an expert may provide the jury with information from which the jury may infer the motive for a crime or the perpetrator’s intent. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550–1551.)
Here, the evidence provided by Smith and Moody, as well as Detective Hunt’s expert testimony, provided sufficient evidence from which the jury could conclude that appellant committed the crime for the benefit of the Insane Crips gang, with the specific intent to commit the crime. Detective Hunt opined that the primary activities of the Insane Crips were shootings, drug dealing, robberies, and murder. He testified that the Rolling 20’s and Insane Crips had conflicts in July 2005, including shootings and killings arising from disputes over women and property. Based upon the violence between the two gangs, the behavior of appellant prior to shooting Smith, and his statement that somebody died tonight, Detective Hunt opined that appellant committed the crime for the benefit of the gang in order to intimidate others and to promote its reputation. Smith, a member of the Rolling 20’s, recognized appellant as a member of the Insane Crips. Smith noticed appellant saying something twice to his companion, and then tapping his arm. That action obviously alerted Smith that something was up, so he and his friend ran. And indeed, he was shot. There was no evidence that the attack was provoked or the result of a previous encounter between appellant and Smith, and therefore the jury could well conclude that appellant had the specific intent to commit a crime to promote the gang.
Thus, based on the history of violence between the gangs, the jury could conclude that the shooting was committed in order to benefit the gang. Based on appellant’s behavior at the time of the crime, the jury could conclude that appellant had the specific intent to promote the gang. We conclude that the circumstantial and expert testimony was sufficient for the jury to find the section 186.22, subdivision (b)(1)(C), allegation true.
II. The trial court properly admitted impeachment evidence
Appellant contends that the trial court erred in admitting Moody’s testimony that she was fearful of testifying due to anonymous and threatening telephone calls. He also urges that the trial court erred in admitting Detective Hunt’s testimony regarding the gang affiliation of persons present in the courtroom.
Pursuant to Evidence Code section 352, the trial court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
Gang evidence has significant probative value on the issue of a witness’s credibility. (People v. Sanchez (1997)58 Cal.App.4th 1435, 1450 [admission of witness testimony that he was afraid to identify the defendant because of the presence of a gang member in his store during the presentation of an photographic array was not an abuse of discretion pursuant to Evidence Code section 352].) Evidence that a witness is afraid to testify is relevant to the credibility of that witness and is admissible. (People v. Sanchez, supra, at p. 1449.) The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court’s decision exceeds the bounds of reason. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)
The record shows that the trial court, after hearing the People’s offer of proof, determined that testimony by Moody regarding threatening phone calls she had received was admissible. When Detective Hunt initially interviewed Moody, she was certain of her identification of appellant, and did not hesitate in pointing him out in the photographic six-pack. She stated that she had a good look at his face. She also attributed the statement “somebody died tonight,” to appellant. But, Moody testified at trial that she was not sure if appellant was the shooter, that she glanced at the man as they walked by, and she could not recall who made the statement.
We conclude that the trial court did not abuse its discretion in admitting evidence that Moody had received two threatening phone calls and two warnings from friends that her life was in danger if she testified. The testimony was relevant to explain the difference between Moody’s testimony and her interview with Detective Hunt. And, in the same vein, the trial court properly allowed Detective Hunt to testify that two men who had just left the courtroom were members of the Insane Crips gang. That statement was relevant to Moody’s testimony that she would be afraid when she left the courtroom, and also explained the change in her testimony. It was also relevant to explain Smith’s motivation in testifying that Detective Hunt would not leave him alone until he picked somebody from the photographic six-pack, and that he picked the photo because it was the same one Moody picked. At trial he also refused to identify appellant as the shooter. While in the hospital he unequivocally identified appellant as the shooter to Officer Garcia.
We reject appellant’s argument that the challenged testimony failed to explain specific behavior relevant to the credibility of the threatened witness, and conclude that the trial court did not abuse its discretion in admitting the challenged evidence.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.