Opinion
C079362
01-13-2020
THE PEOPLE, Plaintiff and Respondent, v. ALFREDO ALEXANDER MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62126842F)
A jury convicted defendant Alfredo Alexander Martinez of attempted criminal threats and found true an allegation that the offense was committed for the benefit of a criminal street gang. The trial court placed defendant on probation for four years with various terms and conditions, including one year in county jail, for which defendant received credit for time served.
Defendant now contends (1) it was improper to admit evidence of an impermissibly suggestive showup, (2) it was error to instruct the jury that it could consider a witness's certainty when evaluating eyewitness identification, (3) there is insufficient evidence to support his conviction, (4) the trial court failed to instruct on all the elements of attempted criminal threats, (5) the People's gang expert improperly referred to case-specific and testimonial hearsay, (6) it was error to admit defendant's prior statement about gang affiliation that he made without a Miranda advisement, and (7) there is insufficient evidence to support his gang enhancement.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
We conclude defendant forfeited his claims regarding the showup and the instruction on witness certainty, his sufficiency of the evidence challenges lack merit, and he fails to establish prejudicial error with regard to his other appellate contentions. Accordingly, we will affirm the judgment.
BACKGROUND
On the evening in question, witnesses saw a group of young men yelling at Bryan M. as Bryan stood on the second floor of his apartment building. A white SUV moved back and forth in the nearby alley. Someone yelled, "You need to come out here. We need to deal with this issue right now." Philip S. heard the people outside Bryan's apartment building say, "I am going to get my homies" and "I am going to kill you." Those people said they were going to get a gun and come back. The people outside also called out, "XIV", "Norte for life" and "Norteños."
Rocks and fence boards were thrown at Bryan's building. Rhonda C. heard the boys say that if Bryan did not come outside, "everybody's shit was going to get fucked up." At least two individuals went up to Bryan's apartment door and one of them tried to kick down the door. Rhonda heard the boys say, "Come out, you mother fucker," "Get out here you bitch," and "We're going to get you."
The group left in the SUV after someone shouted that the police were coming.
Philip gave responding police a description of the vehicle that left the area. There was damage to the door of the apartment where Bryan and his mother Pamela lived. Shortly thereafter, police stopped a white SUV about two and a half blocks from Bryan's apartment building. There were six people in the SUV. Cody Ranum was the driver. Juan Soto sat in the front passenger seat. Augustine Garcia, defendant, Wayne Barnett and Carissa Collins were in the back seat. The people in the vehicle wore a lot of red. Soto provided a false name and date of birth to police. He denied that he knew Bryan or that he had been at Bryan's apartment.
Philip identified Soto, Garcia, Ranum and defendant at a showup conducted at the location of the traffic stop. Philip said Soto had been the main instigator and defendant had been collecting rocks. Philip was 100 percent sure the people he identified were involved.
Garcia, Soto and defendant were tried together. At trial, Philip could not recall what the person he saw picking up rocks looked like. But he identified Soto and Garcia as people he saw on the night of the incident. He testified Soto was the one who kicked the door and Garcia was one of the people involved who did a lot of yelling.
Bryan's mother identified Soto and Ranum at a showup. She said Soto yelled threats and Ranum threw a fence board and yelled threats. She recognized the white SUV that was at the showup as belonging to Collins, but said she did not see Collins during the incident. Pamela did not identify defendant.
Previously, on the night of the incident, Pamela had told police she was asleep when Bryan woke her, yelling that someone was trying to kick the door in. Pamela looked out the window and saw two males outside, in addition to the person kicking her door. She heard the people outside say they were going to beat Bryan. She saw one person pull a board off the fence and throw the board at her window. She saw the people run to a white SUV. But at trial Pamela testified that she had been drinking heavily on the night of the incident. She said she did not see anyone throw a fence board. She could not identify anyone in the courtroom. She said the people she saw were teenagers whereas defendant, Soto and Garcia were men. Police testimony indicated Pamela did not exhibit signs of alcohol impairment on the night of the incident.
City of Roseville Police Officer Michael Ryland testified as a gang expert for the People. He opined that the Norteño's are a criminal street gang. He explained that there were two Norteño groups in Roseville: The West Roseville Norteños and the Bay Area Norteños. He said the two groups associated with each other, and estimated there were more than 50 gang members in the area. He described the common symbols, signs and color for the Norteño gang and its rival, the Sureño gang. He also described three crimes committed by Norteño gang members in Roseville. He said the primary purpose of the Norteño's was to commit crimes including criminal threats and assault. He explained that respect, reputation, revenge and retaliation were important tenets for the Norteño gang.
Officer Ryland opined that defendant was an active Norteño gang member based on photographs, the facts of this case, an April 2014 arrest for selling marijuana to a minor, and a fight on April 15, 2013. Officer Ryland testified about photographs obtained from defendant's Facebook profile, the Facebook profile of validated Norteño Jared Stockman, and defendant's cell phone. Those photographs depicted defendant wearing red apparel and flashing Norteño hand signs. Officer Ryland explained that the Norteño gang associated with the color red. Roseville Police Detective Andrew Palmore testified about the facts of defendant's 2014 arrest for selling marijuana to a minor. During the offense, defendant wore clothing Detective Palmore said was common among Norteño gang members. Defendant used Collins's white SUV and committed the 2014 crime with Ranum. Officers found red items in Collins's SUV and Norteño-related drawings and red clothing in a search of defendant's bedroom. Officer Ryland also testified, based on reading a police report, about an April 2013 fight between Devon Armas and a group of Sureños, in which defendant was a victim.
In addition, Officer Ryland opined that Garcia was an active Norteño gang member based on prior validations, the facts of this case, and Garcia's tattoos. Officer Ryland further opined that Soto was an active Norteño gang member based on Facebook photographs, Soto's prior arrest for vandalism, jail classification and prior validation information, jailhouse calls, and the facts of this case. The People played an audio recording of jailhouse conversations between Soto and Ashley P. During one conversation, Soto admitted he kicked Bryan's door. Ashley said Bryan did not say anything because of what Soto would do if Bryan "snitched." Officer Ryland explained that someone who snitched could be targeted.
Moreover, Officer Ryland opined that the charged offenses were gang-related. He explained that an assault on a non-gang member could be a gang-related crime. He said the basis of his opinion was that several gang members or associates participated and played different roles and several people yelled "XIV" and "Norte" during the incident. Officer Ryland said yelling "XIV" and "Norte" benefitted the gang because it added to "the intimidation factor" for Bryan and everyone in the area. He said people would hesitate to get involved when they heard gang terms yelled out, and this benefitted the gang because it allowed the gang to do things without interference.
After the People rested, the trial court granted defendants' Penal Code section 1118.1 motion to dismiss the count four charge of criminal threats (§ 422), but denied the motion as to the lesser included offense of attempted criminal threats. During the defense case, defendant's gang expert agreed the West Roseville Norteño group was a criminal street gang but opined the charged offenses were not gang-related. Codefendant Soto presented evidence that Bryan had threatened to shoot Soto and his family.
Undesignated statutory references are to the Penal Code.
The jury convicted defendant of attempted criminal threats and found true the allegation that the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members. The jury acquitted defendant on a charge of conspiracy to participate in a criminal street gang (§ 182.5) and a charge of street terrorism (§ 186.22, subd. (a)). The count three charge of attempted first degree residential burglary (§§ 664, 459) had been set aside based on insufficient evidence presented at the preliminary hearing. The trial court placed defendant on probation for four years with various terms and conditions, including one year in county jail, for which defendant received credit for time served.
DISCUSSION
I
Defendant contends the trial court erred in admitting identification evidence derived from an impermissibly suggestive showup, violating his Fourteenth Amendment right to due process. The Attorney General responds that defendant forfeited his claims of error by not objecting at trial on the grounds he now asserts. We agree with the Attorney General.
At trial, defendant did not object that the showup procedure was suggestive or violated his due process rights. That failure forfeits his appellate claims. (Evid. Code, § 353; People v. Cunningham (2001) 25 Cal.4th 926, 989; In re Michael L. (1985) 39 Cal.3d 81, 87-88.) Defendant disagrees, citing People v. Morrow (1969) 276 Cal.App.2d 700. But Morrow is distinguishable because the defendant in that case brought a pretrial motion challenging the fairness of the police lineup in which he participated. (Id. at pp. 702-703, 705.) Here, defendant does not contend he brought a similar motion.
II
Defendant next argues the trial court violated his rights to due process and a fair trial by instructing the jury that it could consider a witness's certainty when evaluating eyewitness identification.
The trial court instructed the jury pursuant to CALCRIM No. 315 on the evaluation of eyewitness identification testimony. One of the factors the jury was directed to consider was how certain the witness was when making the identification. Defendant contends this part of the instruction is erroneous because overwhelming scientific and empirical evidence shows eyewitness confidence is not a reliable predictor of accuracy. But defendant's claims are forfeited because he did not object to the instruction or request that the instruction be modified. (People v. Sanchez (2016) 63 Cal.4th 411, 461-462; People v. Ward (2005) 36 Cal.4th 186, 213 [the trial court has no sua sponte duty to modify the standard instruction on eyewitness identification].)
III
Defendant also challenges the sufficiency of the evidence supporting his conviction for attempted criminal threats.
In determining whether sufficient evidence supports a conviction, " 'we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] . . . "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.]' " (People v. Nelson (2011) 51 Cal.4th 198, 210.) We do not reweigh evidence. (Ibid.) " 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' [Citation.] Unless it describes facts or events that are physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Elliott (2012) 53 Cal.4th 535, 585.) The effect of this standard of review is that a defendant challenging the sufficiency of the evidence to support his or her conviction bears a heavy burden on appeal. (People v. Powell (2011) 194 Cal.App.4th 1268, 1287.)
The crime of attempted criminal threats requires proof that (1) the defendant intended to threaten to commit a crime which will result in death or great bodily injury to another person, (2) the defendant intended that the threat be taken as a threat under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her immediate family's safety, (3) the intended threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear, and (4) the defendant took a direct but ineffectual step, beyond mere preparation, toward the commission of the crime. (People v. Chandler (2014) 60 Cal.4th 508, 511, 516, 525 (Chandler); People v. Toledo (2001) 26 Cal.4th 221, 230-231.)
Defendant's trial counsel argued to the jury that there was no evidence defendant said anything to Bryan, but the prosecutor also proceeded under an aiding and abetting theory. Aider and abettor liability attaches when (a) the direct perpetrator commits a crime, (b) the aider and abettor knew of the perpetrator's criminal purpose, (c) the aider and abettor intended to commit, encourage or facilitate the perpetrator's commission of the crime, and (d) the aider and abettor's acts or advice aided, promoted, encouraged or instigated the commission of the crime. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295-296; People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
There is substantial evidence from which the jury could reasonably find that defendant aided and abetted the commission of the crime of attempted criminal threats. The testimony shows that members of the group outside Bryan's apartment threatened to beat and kill Bryan. Philip identified defendant as one of the members of that group. The threats were accompanied by efforts to kick down Bryan's door. Even if defendant did not say any of the threatening words the witnesses described, Philip's testimony established that defendant shared Soto's unlawful intent and aided the group's attack by collecting rocks. Witnesses testified that rocks were thrown during the confrontation. Defendant left the scene in the company of Soto and others who were identified as being involved in the altercation. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095 [fleeing the scene with the perpetrator and remaining in the company of the perpetrator after the commission of the crime indicate culpability as aider and abettor].)
IV
Defendant further contends the trial court violated his rights to due process by failing to instruct on all the elements of attempted criminal threats.
As we have explained, the crime of attempted criminal threats requires, among other things, proof that the intended threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear. (Chandler, supra, 60 Cal.4th at pp. 511, 525.) Defendant says the trial court did not instruct the jury on this particular element. We agree, but conclude the instructional error was harmless under the circumstances.
Under the Fifth and Sixth Amendments to the United States Constitution, the prosecution is required to prove every element of a crime beyond a reasonable doubt. (People v. Cole (2004) 33 Cal.4th 1158, 1208.) Accordingly, the failure to instruct on an element of a crime requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the verdict. (Ibid.; see Chandler, supra, 60 Cal.4th at p. 525.) But here the instructional error was harmless because on this record, there was sufficient evidence for the jury to find that defendant was an aider and abettor, and no reasonable juror could have found that the threats and actions by the attacking group were insufficient to cause a reasonable person to be in sustained fear.
The prosecutor told the jury that count four involved attempted criminal threats because one of the elements of criminal threats was missing: the jury did not hear from Bryan that he experienced sustained fear. But defendant's trial counsel did not argue that the statements made could not reasonably have caused a person to suffer sustained fear. Instead, he argued there was no evidence defendant made any threat or that Bryan was actually afraid. On this record, the instructional error was harmless beyond a reasonable doubt.
V
In addition, defendant argues case-specific and testimonial hearsay presented through the People's gang expert is inadmissible under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), and its admission violated his Sixth Amendment right to confrontation.
"Before Sanchez, an expert was given the latitude to testify both about general background information and about case-specific out-of-court statements in order to explain the basis for his or her expert opinion, and the court typically would instruct the jury to consider the information for that purpose only, and not for its truth." (People v. Anthony (2019) 32 Cal.App.5th 1102, 1130 (Anthony).) Sanchez recognized that such an approach was no longer tenable. "When an expert is not testifying in the form of a proper hypothetical question and no other evidence of the case-specific facts presented has or will be admitted, there is no denying that such facts are being considered by the expert, and offered to the jury, as true." (Sanchez, supra, 63 Cal.4th at p. 684.) Sanchez held that as with any other hearsay evidence, evidence of an out-of-court statement about case-specific facts presented through an expert is inadmissible, unless the statement falls within a hearsay exception. (Ibid.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.) Alternatively, the case-specific facts can be admitted through an appropriate witness and the expert may assume its truth in a hypothetical question. (Id. at p. 684)
Sanchez also addressed the Sixth Amendment implications of admitting case-specific facts through hearsay. "Ordinarily, an improper admission of hearsay would constitute statutory error under the Evidence Code. Under Crawford [v. Washington (2004) 541 U.S. 36 ], however, if that hearsay was testimonial and Crawford's exceptions did not apply, defendant should have been given the opportunity to cross-examine the declarant or the evidence should have been excluded. Improper admission of such prosecution evidence would also be an error of federal constitutional magnitude." (Sanchez, supra, 63 Cal.4th at p. 685, fn. omitted.)
In sum, an expert "may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he [or she] did so." (Sanchez, supra, 63 Cal.4th at p. 685, original italics.) Sanchez also did not alter an expert's ability to describe background information regarding his or her knowledge and expertise and premises generally accepted in the field. (Ibid.) But an expert may not "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.) And "[i]f the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Ibid., italics omitted.) "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Id. at p. 689.)
Retired Department of Corrections Special Agent Matthew Buechner testified as an expert witness for the People. Citing to particular pages from his testimony, defendant asserts he relied on hearsay received from other gang members to form opinions about one of defendant's codefendants in prison. But Special Agent Buechner did not present case-specific facts in the cited testimony. Rather, he testified in general about the ways in which the prison system determines that an individual is no longer part of a gang, the ways to identify a gang member if the person does not go to prison, the reasons a person may claim to have dropped out from a gang, and whether a person can return to a gang after being in protective custody while in prison. Buechner said he was stating generalizations based on his experience.
Citing portions of testimony from Officer Ryland, defendant next says "case specific hearsay came through conversations with other police officers who did not testify." Officer Ryland testified that he validated Wayne Barnett as an active Norteño gang member. In the pages defendant cites, Officer Ryland explained the validation was based on a Facebook photograph, his conversation with Officer O'Roarke about Officer O'Roarke's contact with Barnett, and Barnett's jail classification information. But defendant does not explain how any error in admitting the challenged testimony prejudiced him. (People v. Coley (1997) 52 Cal.App.4th 964, 972 [the appellant bears the burden of showing error and resulting prejudice]; People v. DeSantis (1992) 2 Cal.4th 1198, 1224, fn. 8 [rejecting claim which was not supported by adequate argument].)
Citing another portion of Officer Ryland's testimony, defendant claims expert opinion was also based on police reports. Defendant references Officer Ryland's testimony about a fight in defendant's presence between Devon Armas and a group of Sureños. The testimony appears to be based on reports which Officer Ryland read, and is inadmissible under Sanchez because Officer Ryland related case-specific facts asserted in hearsay statements (statements in police reports) for which no independent evidence was presented and no exception to the hearsay rule was established. (People v. Martinez (2018) 19 Cal.App.5th 853, 859-860; People v. Pettie (2017) 16 Cal.App.5th 23, 63-64.)
However, the error was harmless beyond a reasonable doubt because Officer Ryland relied on other evidence to opine that defendant was an active Norteño gang member, and independent evidence established that the charged offense was gang-related. Officer Ryland's opinion that defendant was an active Norteño gang member was also based on photographs taken from defendant's cell phone and the Facebook profiles for defendant and a validated Norteño gang member, showing defendant wearing the color red and flashing the hand signs associated with the Norteño gang and in the company of validated Norteño gang members. Those photographs were admitted into evidence. Photographs are not hearsay nor testimonial. (People v. Cooper (2007) 148 Cal.App.4th 731, 746; Anthony, supra, 32 Cal.App.5th at p. 1139.)
Officer Ryland's opinion was also based on crimes defendant committed with Norteño gang members, including the facts of this case. During the attack on Bryan's apartment, defendant's group yelled "XIV," "Norte for life," and "Norteños." Officer Ryland explained that "XIV" was a common symbol for the Norteño gang. His testimony showed "Norte" was also a term associated with the Norteño gang. Officer Ryland opined that Soto, Garcia and Ranum were Norteño gang members, and defendant does not argue otherwise. Officer Ryland explained that in his opinion the crime was committed for the benefit of the gang because, among other things, the gang members announced the name of their gang while committing the crime. Defendant's gang expert conceded that such conduct would be consistent with a gang-related crime.
Further, Officer Ryland relied on defendant's subsequent arrest for the sale of marijuana to a minor. Detective Palmore's testimony established the facts of that crime, explaining that defendant wore apparel common among Norteños during the offense, and drawings and apparel associated with the Norteño gang were found in a search of defendant's bedroom. In addition, defendant committed that crime with Ranum. Photographs, clothing and crimes committed with other gang members are factors indicating active gang membership. (People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 22.)
Defendant also cites Officer Ryland's general testimony about gang workups. In that testimony, however, Officer Ryland did not relate case-specific hearsay.
In his appellant's reply brief, defendant says Officer Ryland presented hearsay when he testified that Bronson Baldwin was previously validated. Defendant cites Officer Ryland's testimony about an incident resulting in the conviction of Baldwin and others (but not defendant or his cohorts in this case) for making criminal threats and dissuading a witness, with true findings on a gang enhancement allegation. Officer Ryland said Baldwin had been validated as a gang member prior to that incident. In describing the pattern of criminal activities by local Norteño gang members, Officer Ryland testified about a prior fight in Roseville during which Baldwin and his group yelled "Norte" and "Fuck a scrap" (a derogatory term for a Sureño) and someone in the group waved a red bandana. Defendant argues the testimony was inadmissible under Sanchez. We disagree. As we have explained, those prior offenses did not involve defendant or his cohort in this case. Sanchez does not affect the admissibility of a gang expert's testimony regarding a gang's primary activities or pattern of criminal activities unrelated to the defendant or the current offenses. (People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411.) Such evidence is admissible as general background testimony. (Ibid.)
VI
Defendant claims the trial court violated his Fifth Amendment right against self-incrimination by admitting evidence of his statement about gang affiliation made during booking without the benefit of a Miranda advisement. A defendant's un-Mirandized responses to questions about gang affiliation, posed to a defendant while processing him or her into jail, are inadmissible when the questions were reasonably likely to elicit an incriminating response, exposing the defendant to prosecution for a gang participation crime and enhanced punishment. (People v. Elizalde (2015) 61 Cal.4th 523, 527, 538-540 (Elizalde).)
Deputy Sheriff Jon Scofield testified about the process of classifying arrestees at the jail, and he did not say whether Miranda advisements are given in general during booking or whether the booking officer Mirandized defendant at the time any gang affiliation questions were posed. Under the circumstances, the Attorney General agrees there was Elizalde error, but argues the error was harmless beyond a reasonable doubt.
We conclude that any such error resulted in no prejudice. (Elizalde, supra, 61 Cal.4th at p. 542 [erroneous admission of the defendant's booking question responses was harmless beyond a reasonable doubt where the defendant's gang affiliation was amply established by independent and uncontradicted evidence].) As we have explained, independent evidence convincingly established that defendant was an active Norteño gang member.
VII
Finally, defendant challenges the sufficiency of the evidence supporting the jury's true finding on the gang enhancement.
There are two prongs to a section 186.22, subdivision (b) gang enhancement. (People v. Rios (2013) 222 Cal.App.4th 542, 561 (Rios).) First, the prosecution must prove that the underlying felony was "committed for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22(b)(1).) This means the crime must be gang-related. (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) A "criminal street gang" is "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 paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of [section 186.22,] 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).) Second, a section 186.22, subdivision (b) finding requires evidence that the crime was committed "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) This scienter requirement applies to any criminal conduct by gang members and does not require conduct apart from the criminal conduct underlying the offense of conviction sought to be enhanced or intent to promote, further or assist a gang. (Albillar, supra, 51 Cal.4th at p. 66-67.)
Without repeating the evidence already described in this opinion, we conclude there is substantial evidence in the record that defendant aided and abetted attempted criminal threats in association with or for the benefit of a criminal street gang. (Albillar, supra, 51 Cal.4th at pp. 61-62 [defendants committed crimes in association with the gang where they came together as gang members to attack the victim]; id. at p. 63 [expert opinion that particular conduct benefitted a gang can be sufficient to raise the inference that the conduct was committed for the benefit of a criminal street gang]; People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [the jury could reasonably infer that the crimes were committed in association with a gang where the defendant committed the charged crimes with fellow gang members].) Although gang membership is not required to establish the section 186.22, subdivision (b) enhancement, evidence that a crime was committed with fellow gang members may be circumstantial evidence that the crime was gang-related. (Albillar, supra, 51 Cal.4th at pp. 60-64, 67-68; People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 539-540.) Contrary to defendant's claim, the gang enhancement finding was supported by more than defendant's gang membership and general evidence about gang terminology and culture.
There is also substantial evidence that defendant acted with specific intent to assist in criminal activity by gang members. " '[I]ntent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.' " (Rios, supra, 222 Cal.App.4th at pp. 567-568.) Here, defendant was not merely present at the scene of the altercation. He was seen gathering rocks. Even though the witnesses did not see defendant throw rocks, they saw rocks thrown at Bryan's building. There is no evidence that defendant expressed disagreement with the conduct of his companions, and no evidence that he tried to leave the scene before the group departed. His presence and conduct indicate his agreement with and intent to aid the criminal activities of his cohort. " ' "Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime." ' " (People v. Ewing (2016) 244 Cal.App.4th 359, 379.)
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
HOCH, J. /S/_________
RENNER, J.