Opinion
B208770
7-14-2009
THE PEOPLE, Plaintiff and Respondent, v. ALFREDO ORTEGA, Defendant and Appellant.
Nancy Mazza, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Alfredo Ortega appeals his convictions of first degree murder, possession of a controlled a substance for sale and true findings on gang and weapons enhancements. Before this court, appellant argues his convictions cannot stand because the court erred in allowing the gang expert to exceed the scope of proper expert testimony by providing the only evidence against appellant supporting the gang allegation and by opining on ultimate issues. He further complains that the gang experts opinions were improper because they were based on hearsay evidence from another gang member and violated his Sixth Amendment rights under the confrontation clause. Finally, appellant claims that absent the improper evidence provided by the gang expert, insufficient evidence supported his murder conviction and the gang enhancement and that no independent evidence existed to support the admission of the gang evidence. His claims lack merit. First, appellant failed to preserve nearly all of his objections on appeal concerning the gang experts testimony. Nonetheless, as we shall explain, the testimony and opinions offered by the expert were not beyond the scope of testimony gang experts have been traditionally permitted to give, and were appropriate to aid the lay jury in understanding the evidence. Second, the evidence was used for a non-hearsay purpose and did not violate appellants Sixth Amendment rights. In any event, any possible error was harmless. Ample evidence in the record supported his murder conviction and the gang enhancement which included evidence that identified appellant as fleeing the scene of the crimes and the appellants statements made while under audio surveillance describing the crime and how the victim died, and videotape evidence depicting the events shortly before the murder. Consequently, we affirm and modify the judgment to impose the statutory security fees required under the Penal Code and remand for the superior court clerk to prepare an amended abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Murder of Gerardo Olvera
At approximately 7:30 p.m. on April 30, 2006, Gerardo Olvera entered a mini-market located inside the Hollywood Park race track. Olvera dressed himself nicely, carried a few hundred dollars in cash, a cell phone, and wore a necklace and bracelet. Afterwards, he called a taxi which dropped him off at the El Jalisco Bar near Hollywood Park.
A surveillance camera outside the bar recorded a videotape that showed Olvera exiting a car and being met in the parking lot by Pedro "Cisco" Vacio, a Lennox 13 street gang member. A video surveillance camera inside the bar recorded a videotape depicting another Lennox 13 gang member, "Shaggy" Rodriquez inside the bar along with appellant. Appellant wore a white shirt with a blue or aqua blue design above an emblem or shield in the center chest region; the shirt had a "P" in the center of the emblem. The surveillance tape showed Olvera speaking with Rodriquez at various points in the evening.
The videotapes do not contain audio.
Although appellant denied his association with a gang at trial, the prosecution presented evidence of appellants membership in the Lennox 13 gang, including his gang tattoos, a photograph of him "throwing" a gang sign and various gang items and writings from appellants house.
At some point in the evening, the videotape shows Olvera and Vacio leaving the bar area and walking towards the bathroom area. Moments later, Rodriguez pointed in the direction where Vacio and Olvera had gone and made a hand signal to appellant — Rodriguez looked at appellant and gave him a "thumbs up." Appellant subsequently joined Rodriguez, Vacio, and Olvera in the bathroom area which was out of the view of the surveillance camera. A few minutes later the videotape shows Olvera, escorted by Rodriguez, walk out of the bar in the direction of 116th Street. About a minute later the video shows appellant appearing to run out of the bar in the direction where Olvera and Rodriguez had exited.
Witness Rodrigo Cuevas lived on 116th Street; he heard three to four gun shots. Cuevas saw two male Hispanics almost directly in front of his window running away from the area where Cuevas heard the shots. Cuevas saw them for approximately five to seven seconds. Cuevas later identified one of the men as Rodriguez. Although Cuevas could not identify appellant, he recalled the clothing of the other man he observed running. Cuevas told the police officer that the other male wore a tight fitting t-shirt with a blue or turquoise design on the upper chest portion of the shirt.
Olveras body was discovered by police about four houses down from the El Jalisco Bar; he lay dead from bullet wounds. His body did not have any identification, money, jewelry or a cell phone.
The police later searched appellants home pursuant to a search warrant. They found drugs, money, a gram scale, 50 empty plastic baggies, and four cell phones. In appellants closet they found a white t-shirt that had a shield with the letter "P" in the middle. Officer Catano opined that the shirt precisely matched the one appellant was shown on the video that he wore in the El Jalisco Bar on the night of the murder. The police also seized photographs from appellants bedroom which showed him "throwing" gang signs. The words "West Side, 90304, V, Lennox," "3, gang," and "Lucky" were written on a shoebox containing the photographs.
Appellants Arrest and Trial
The police arrested appellant, Rodriguez, and Vacio. When he was arrested, appellant carried a cell phone which had the words, "West Los Lucky" scratched into the surface. Appellant denied having anything to do with the murder. He merely admitted to being at El Jalisco Bar that night to have a drink.
Appellant was charged with the murder of Olvera (Pen. Code, § 187, subd. (a)) and possession for sale of a controlled substance (Health & Saf. Code, § 11378). In regard to the murder charge, it was alleged that appellant personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily harm and injury and death to Olvera (§ 12022.53, subd. (d)) and that the offense had been committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)).
Unless otherwise noted, all statutory references are to the California Penal Code.
After being arrested, the police placed appellant, Rodriguez, and Vacio in the same jail holding cell. The police surreptitiously recorded their conversation over a five-hour period. Appellant and his accomplices proceeded to make various statements regarding the events of that night. Appellant stated, "were going to get out" because "they dont have proof of anything" and "Lets not be ratting out. . . ." Appellant stated, "we got rid of that shit, dude, those shits . . . are destroyed . . . both, and your [sic] too."
Appellant, Vacio and Rodriguez spoke in Spanish and English on the audio tape. The tape was translated for the jury by a Hawthorne Police Officer who was fluent in Spanish and English and who had gone through language training.
Appellant, seemingly referring to the victim, replied, "[b]ut he died that (INAUDIBLE)." Appellant also asked Rodriguez, "what did you do with all. . .the things we stole from the dude," "did you throw them away?" Rodriguez explained that he threw away Olveras cell phone. Appellant said he threw out all of his firearms "that same night." Rodriguez asked appellant what he did with Olveras ring and chain. Appellant responded, "I destroyed everything."
Appellant, Rodriguez and Vacio also discussed the surveillance cameras at the bar. Appellant, referring to the owner, stated: "I was going to get that fuck." Appellant and Vacio also noted that there were cameras outside the bar but not "[w]here it happened." Appellant stated "thats why they did not see me." Rodriguez laughed as he said appellant, "came out like Rambo." Appellant told Rodriguez and Vacio, "if they had destroyed those cameras, dude, wed be allright." Vacio replied, "[i]ts that fuck, dude, I didnt think dude, otherwise we would have gotten him in the car there, dude, and we would have taken him to another place." Vacio explained that after Rodriguez and appellant had left the bar to go up the street with Olvera, someone mentioned to him that there were cameras in the bar, so he ran in their direction, but turned back when he heard gunshots.
Finally, Rodriguez asked appellant, "And you gave it to that dude on the head, huh?" Rodriguez, then lowered his voice to a whisper and repeated, "[Y]ou gave it to him on the head?" The three then laughed as appellant replied, "because of that ... is when that was it for that dude, because after he fell, dude . . . ." Appellant also stated, "let me tell you, if the camera doesnt show that problem, dude, and they dont find that shit ... we did it hom[]ie ... fuck what they heard."
At trial, a senior criminalist with the Los Angeles County Sheriffs Department concluded that the baggie found in appellants home contained .35 grams of methamphetamine. He found the other baggies contained 1.40 grams of base cocaine. The police officer who searched appellants home gave his opinion that these materials were intended for sale based upon how they were packaged, their weight, the scale, its location, the small denominations of the $110 found nearby, and the cell phones. Also at trial, the doctor who conducted Olveras autopsy testified to finding three gunshot wounds. One wound had an entry behind the right ear, the other had an entry on the left back, and the third had entry to the left arm. The doctor who examined Olveras body also stated that Olvera had methamphetamine and amphetamine in his blood at the time of his death and further opined that he had ingested the drugs within a short time before his death.
Gang Expert
In connection with the trial of Rodriguez the court conducted an Evidence Code section 402 hearing concerning the admission of expert gang evidence from Detective Mark Marbach ("Marbach") of the Los Angeles County Sheriffs Department. During appellants trial the court conducted another Evidence Code section 402 hearing on the admission of gang evidence. During this hearing the prosecution made an offer of proof that the gang evidence and testimony of the expert would be relevant to issues of identification, motive, criminal association and to explain the mode and operation of the Lennox 13 gang and how the gang operated within the El Jalisco Bar by "taxing" and robbing non-gang members in the bar for going into the Lennox 13 territory. The prosecutor also explained the evidence would clarify what was said on the jail house audio and the video tape from the bar and demonstrate the criminal gang association between appellant and the other men. The court and the parties also discussed the fact that information about how the Lennox 13 gang operated within the bar to "tax" patrons and extract revenge from those who did not comply was obtained from police interviews of Rodriguez, and that the gang expert would be relying on that information from Rodriguez to explain how the gang operated. The court indicated that it did not have a problem with that evidence.
Appellants counsel apparently did not participate in the 402 proceedings in that case because it occurred after the court severed appellants and Rodriguezs cases for trial.
Rodriguez had also implicated appellant as the shooter, but the prosecutor stated that he would not introduce that statement.
The court then turned to appellants counsel to respond to the prosecutions offer of proof, and the following exchange occurred:
"The Court: So first, the general information about what a criminal street gang is, you have any objection to that?
"Appellants Counsel: Yes, and submitted.
"The Court: Okay thats overruled. The general information about Lennox 13, what their territory is, what their gang sign is, what their hand signals are, tattoos, objection?
"Appellants Counsel: Yes.
"The Court: Okay. Overruled. . . . [¶¶]"
"The Court: Okay. Next. Theres the statements made on this tape with the three gentlemen in the cell
"Appellants Counsel: Yes.
"The Court: — and how that affects his [the gang experts] opinion.
"Appellants Counsel: Yes. I think its improper opinion evidence, your honor. We have the [other] officer who did the translation, but he — he made certain assumptions in order to do the translation. Now what the people want to do is add another layer of opinion or hearsay onto that translation. And I think the translation speaks for itself. . ."
"[¶¶]
"The Court: Okay. And then the final thing is Mr. Rodriguez having made a statement in which he explains that this particular bar is a place that gang members frequent, that their gang particularly frequents and, quote, unquote, extorts or intimidates...
"The Prosecutor: He used the word `taxing.
"The Court: Taxes.
"Appellants Counsel: I am worried about that, your honor, because thats guilt by association type evidence.
"The Prosecutor: But that is what gang evidence is.
"Appellants Counsel: Theyre trying to say thats exactly what happened in this incident. Now Rodriguez confession that he did something is one thing. But trying to then say that it means that it was done by a gang for a gang purpose, you know begs the question.
"The Court: But here is the problem with that, . . . And that is, I think why they create a limiting instruction that the court is obligated to give. Thats that Officer Marbach is testifying as an expert witness, and he may rely upon many different things in order to form his expert opinion that this crime was done in association with a criminal street gang. So if one of the things that he relied upon is a statement by Mr. Rodriguez about this bar being in the thick of things for Lennox 13, I believe that he can testify that that is something that he relied upon in forming his expert opinion. I believe it its also appropriate for me to tell the jurors that this is not to be relied upon for the truth of what Mr. Rodriguez said but — . . . But merely to assess the reasonableness of the officer in coming to the conclusion that he did it.
"Appellants Counsel: Right. Your Honor. This is what I would request is that he be — if its going to come in, that he be allowed to say that he relied upon what Mr. Rodriguez said, but for him not to repeat what Mr. Rodriguez said."
All counsel and the court then agreed that the expert would not identify Rodriguez as his source of information, but that Marbach could state that he spoke to other gang members and from them obtained information about how Lennox 13 operated in the bar.
Thereafter the expert testified during the trial. He elaborated on his extensive training and background in the area of gangs generally, and specifically as to Lennox 13 which he had gathered as a result of working extensively in the Lennox area and speaking with many gang members. Marbach "targeted" the Lennox 13 gang which meant that he attempts to investigate every crime they commit. He testified that it is a primarily Hispanic gang and that it is named after the area in which it was founded and that it had as many as 250 active members. A common tattoo on members bore the numbers "90304" which is the zip code for their area of influence. He also testified that members generally have monikers, and members use them to communicate with another. He testified as to the hierarchy of the gang and the process by which they commit crimes in order to achieve status amongst fellow members. He also explained that because of loyalty in the gang, members often commit crimes with other members who help with the crime and corroborate the actions to other senior members of the gang. He explained that gang members also work together to destroy evidence and intimidate witnesses. Marbach further explained that a gang may "tax" someone in a bar by forcing the person to buy the gang drinks or by taking their money with harsh consequences to those who did not comply.
At the beginning of the experts testimony, the court gave the jury the following instruction:
"Detective Marbach is considered an expert witness. And as such, he can base his opinion in the case on a number of different factors, a number of different sources, including information he may have received from other police officers, other gang members. The information is not being put in front of you for you to assess whether it is true, that is it true. It is being given to you to help you understand what this detective is using as a basis for his expert opinion. You are to assess whether the expert is basing his opinion on reliable or unreliable information because you are going to make a credibility call about the credibility of this expert witness. And part of the credibility is whether or not this information is reliable. So its not being given to you or introduced for the truth of whats being said in that information. Its being given to you for you to assess the credibility of the expert witness."
The expert testified that appellant had items in his home with the gang moniker "Lucky" on it and that certain gang graffiti also showed the moniker.
The expert was shown photographs of appellants tattoos and he explained to the jury that appellants various tattoos identified appellant as a member of a gang and specifically the Lennox 13 street gang. The prosecutor also showed Marbach with a Nike shoe box found in appellants bedroom and the cellular phone appellant carried at the time of his arrest. Marbach explained that the writings on the box and the phone were references to Westside gangs and to Lennox 13. The photographs, in Marbachs opinion, were of appellant making gang symbols. Marbach testified he knew of the El Jalisco Bar. The buildings surrounding the bar had graffiti that referenced the Lennox 13 gang.
The expert testified that he had spoken with other gang members about gang activity that occurred inside the bar and had learned that the El Jalisco Bar was inside Lennox 13 gang territory and was controlled by the gang. He explained how the gang would control the bar by "taxing" patrons in the bar by forcing the person to buy them drinks or pay money. He stated that failure to comply would result in consequences—a person could be removed from the bar and punished for disrespecting the gang.
When asked whether after reviewing the video of the events of the bar, the audiotapes from the jail, the police reports and other evidence, the expert had any opinion whether this particular robbery and subsequent murder was committed in association with, at the direction of, or for the benefit of the Lennox 13 gang, the expert stated that Olveras murder resulted from gang activity for the benefit of Lennox 13. Marbach stated he based his opinion on the specific facts of this case, what is shown on the videotape, combined with his extensive experience with gangs and Lennox 13. His explanation boiled down to the fear and intimidation that a street gang must possess over the surrounding community. He stated:
"You cant show weakness . . . . [B]y letting someone disrespect you, that would show weakness and that wouldnt let you have the control and the fear and intimidation over a community that you need to have as a street gang." "Its obvious that there are several gang members in the bar. Theyre carrying on with activity. Contacted people. Contacted the victim. They later escort the victim out. Its apparent or it seems apparent to me that the victim wasnt going with the program, so it was time for him to leave. At some point they felt that if they didnt take it further that maybe the victim would go to the police. Maybe something else would occur. Maybe they felt the level of disrespect that occurred was too much for them to allow to just pass. And subsequently they killed the victim." Appellants counsel did not object to the experts statements.
At the conclusion of the prosecutions case, the court further clarified its ruling on the admissibility of the gang expert testimony. The court indicated that it had also conducted an analysis of admissibility under Evidence Code section 352 and had concluded that the probative value of the evidence on issues of motive, identity and whether the crimes were committed in association with a gang greatly outweighed any potential prejudice to appellant.
The Appellants Testimony
Appellant took the stand on his own behalf. He testified that he merely visited the bar that night, had a drink with his friends Rodriguez and Vacio, did drugs in the bathroom as indicated on the security camera, played pool, and went home. Appellant denied killing anyone or participating in a robbery. Appellant claims to have lied to officers because he felt the police were corrupt and did not want to implicate his friends in a murder investigation. He admitted he knew that Rodriguez and Vacio were Lennox 13 members and that in the past they had all been involved in fights, assaults, and robberies.
Appellant denied selling drugs or that he owned the cell phones found in his room. He claimed his tattoos were for art, culture, and his first love in high school. He also claimed to have known the police taped his conversation in the jail cell. He testified that the conversation did not refer to the killings that night as the prosecution alleged, but instead referred to innocuous or past criminal activity. For example, when appellant said, "he died," appellant claimed to actually be referring to another incident in which Rodriguez attempted to sell someone a stereo that had "died." Appellant denied ownership of the Nike shoe box and instead claimed it was his cousins who had been deported. He denied being the same "Lucky" mentioned in graffiti writings. He explained that this was merely his nickname that coincidentally was the same as a Lennox 13 gang member. He also denied to having been involved in a gang fight while in custody, despite prison violence report to the contrary.
The jury found appellant guilty of murder, possession of narcotics, and returned "true" findings on the gang and weapon enhancements. Appellant filed this timely appeal.
DISCUSSION
I. Admission of Expert Evidence Concerning Gangs
Before this court appellant asserts a number of distinct complaints concerning the admission of the gang expert testimony. First, he complains under People v. Killebrew (2002) 103 Cal.App.4th 644 and In re Frank S. (2006) 141 Cal.App.4th 1192, the expert impermissibly provided the only evidence of the charged offense and the gang enhancement and the experts opinions included an opinion on the "ultimate issue" for the jury. Second, appellant complains that the experts opinion was based on unreliable hearsay statements of Rodriguez concerning how the Lennox 13 gang operated in the bar and that the expert was an improper conduit for that hearsay. Finally, he argues that the experts testimony in which he relayed the information learned from Rodriguez to the jury violated appellants right to confront Rodriguez under Crawford v. Washington (2004) 541 U.S. 36.
Respondent contends appellant failed to preserve these issues by failing to raise them below. Our review of the record convinces us the respondent is correct. Appellants objections were non-specific. In his brief appellant claims he objected as to the relevance of the testimony and under Evidence Code section 352, but those objections do not appear in the record before this court, and even if they did, he has not convinced this court that those objections would necessarily encompass those he asserts on appeal. Below, appellants trial counsel expressed a concern about the experts reliance on Rodriguezs hearsay statements, but even the "worry" expressed is imprecise and in fact, appellants counsel acquiesced to the courts view that the expert could rely on the statements for a non-hearsay purpose. Because there was no specific objection at trial on the grounds appellant asserts here, he forfeited these claims. (See Evid. Code, § 353; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208 [defense counsels general objection to entirety of gang expert testimony insufficient to preserve objection to expert opinion on issue of defendants intent to benefit gang]; People v. Valdez (1997) 58 Cal.App.4th 494, 505 [defense counsels trial objections to gang evidence that the expert lacked personal knowledge of the defendants involvement in the crime, that the experts views were not the subject of proper gang expert testimony and to the expert giving opinions on ultimate issues did not preserve for appeal a complaint that the expert could not give an opinion on the defendants gang affiliation].)
Given appellants trial counsels agreement with the trial courts view that the statements of Rodriguez were being offered for a non-hearsay purpose, counsels failure to object on the grounds of hearsay would be more accurately described as "waiver" of the issue for appeal.
In any event, even had proper objections been made, we would reject appellants claims.
Legal Principles Governing the Admission of Gang Evidence .
A true finding on an allegation of a criminal street gang enhancement, requires proof the crime at issue was 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).) To prove a gang is a "criminal street gang," the prosecution must demonstrate it has as one of its "primary activities" the commission of one or more of the crimes enumerated in section 186.22, subdivision (e), and it has engaged in a "`pattern of criminal gang activity" by committing two or more such "`predicate offenses." (§ 186.22, subds.(e), (f); People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)
Our Supreme Court has repeatedly affirmed the use of expert testimony by law enforcement professionals who have experience in the area of gang culture and psychology to demonstrate a defendants intent and the gang-related activities to support a finding under section 186.22. (See, e.g., Gardeley, supra, 14 Cal.4th at p. 618 [expert testimony by police detective particularly appropriate in gang enhancement case to assist fact finder in understanding gang behavior]; People v. Gonzalez (2006) 38 Cal.4th 932, 944-946 [reaffirming Gardeley and admissibility of officers expert testimony in the area of gang culture and psychology]; see also People v. Zepeda, supra, 87 Cal.App.4th at pp. 1207-1208 [affirming admission of officers expert opinion that sole gunman who displayed no gang signs during shooting acted to bolster gang and his own reputation in gang]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1384 ["It is difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes `respect."].)
We note that the Supreme Court has granted review in a case from Division Six of this court to determine whether substantial evidence supports convictions under section 186.22, subdivision (a) (active participation in criminal street gang), and true findings with respect to enhancements under section 186.22, subdivision (b), based on a gang experts testimony that three gang members who raped a young woman in concert committed their crimes for the benefit of and in association with their gang. (People v. Albillar, review granted Aug. 13, 2008, S163905.) The Courts opinion may restrict the scope of permissible testimony from gang experts with respect to the required showing under section 186.22 that a crime was committed for the benefit of, at the direction of, or in association with a criminal street gang and may also provide guidance as to the type and extent of evidence, in addition to an experts testimony, necessary to establish a crime is sufficiently gang-related to support a criminal street gang enhancement. Nonetheless, until and unless the Supreme Court issues an opinion providing differently, we are constrained by Gardeley and its progeny approving of the admissibility of such opinion testimony.
Thus gang expert testimony may properly be admitted to prove motive and intent. (See People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) Expert testimony has repeatedly been offered to prove the "motivation for a particular crime, generally retaliation or intimidation" and "whether and how a crime was committed to benefit or promote a gang." (Killebrew, supra, 103 Cal.App.4th at p. 657.) An expert may testify concerning the culture, habits and psychology of gangs because these matters are sufficiently beyond the common experience that the opinion would assist the trier of fact. This includes providing testimony about gang membership, dress, hand signals, graffiti, territory, retaliatory practices. (Gardeley, supra, 14 Cal.4th at p. 617; Valdez, supra, 58 Cal.App.4th at p. 506.) Indeed, an expert may testify about whether a defendant acted for the benefit of a gang, even though the question is an ultimate factual issue in the case, when these matters are beyond the jurys common experience. (Valdez, supra, 58 Cal.App.4th at pp. 507-509.) With these principles in mind we turn to appellants arguments.
1. Appellants argument under Killebrew and Frank S. and Expert Testimony on the Ultimate Issue
Appellant complains that the expert impermissibly provided the only evidence of the charged offense and the gang enhancement and thus ran afoul of Killebrew and Frank S.
In Killebrew, an expert testified "that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun." (Killebrew, supra, 103 Cal.App.4th at p. 652, fn. omitted.) This testimony provided the only evidence to establish the elements of the gang enhancement. (Id. at p. 658.) Killebrew found the experts testimony regarding the minors specific intent exceeded "the type of culture and habit testimony found in the reported cases." (Id. at p. 654.) Instead, the expert "testified to the subjective knowledge and intent of each occupant in each vehicle. Such testimony is much different from the expectations of gang members in general when confronted with a specific action." (Id. at p. 658.) The experts testimony "did nothing more than inform the jury how [the expert] believed the case should be decided." (Ibid.)
In Frank S., the police arrested a minor who possessed a concealed fixed-blade knife, a bindle of methamphetamine, and a red bandana. The minor explained that he carried the knife to protect himself from a southern gang because they thought he supported the northern street gangs. The minor also stated he had several friends in the northern gangs. The minor was charged with possessing a concealed dirk or dagger, with an enhancement for committing the crime for the benefit of a gang under section 186.22, subdivision (b)(1). To prove this allegation, the prosecution relied almost exclusively on the testimony of a gang expert who opined, among other things, that minor possessed the knife with the specific intent to benefit the gang. (In re Frank S., supra, 141 Cal.App.4th at pp. 1195-1196.) Frank S. reversed the juvenile adjudication because the offense was "found to be gang-related based solely upon [the minors] criminal history and gang affiliations." (In re Frank S., supra, 141 Cal.App.4th at p. 1195.) The gang expert improperly testified as to her belief "of the minors intent with possession of the knife, an issue reserved to the trier of fact." (Id. at p. 1199.) "In the present case, the expert simply informed the judge of her belief of the minors intent with possession of the knife, an issue reserved to the trier of fact. She stated the knife benefits the Nortenos since `it helps provide them protection should they be assaulted by rival gang members. However, unlike in other cases, the prosecution presented no evidence other than the experts opinion regarding gangs in general and the experts 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 minors 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 minors 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." (In re Frank S., supra, 141 Cal.App.4th at p. 1199.) Under those circumstances, the court determined there was insufficient evidence to support the gang enhancement. (Ibid.)
The instant case is distinguishable from Frank S. and Killebrew because there was an evidentiary basis for the experts opinion testimony. First, there is no dispute that the Lennox 13 gang is a criminal street gang and that Rodriguez and Vacio were active members of the gang and that the El Jalisco bar was located in Lennox 13 gang territory. The expert explained that the gang operates on a three-tiered system and had over 250 members. Second, there was overwhelming evidence to demonstrate defendant was an active member of the gang at the time the offense was committed. There was also ample evidence to show defendant associated with fellow gang members, including a photo of appellant and another person throwing a Lennox 13 gang sign. Appellant also had several Lennox 13 tattoos on his body. Moreover, videotape from the El Jalisco bar on the night of the murder clearly shows appellant interacting with and taking directions from Rodriguez. The clothing he wore on the evening of the murder was also identified by an eyewitness as worn by one of the two men running from the scene. Appellants statements caught on the audiotape of appellants jail cell discussion further implicate him in the murder and show his involvement with Rodriguez and Vacio.
Unlike in Killebrew and Frank S. the expert did not opine on appellants subjective intent or his personal knowledge. The expert did not even mention appellant in connection with his testimony concerning Lennox 13s activities in the bar. Instead, the expert explained to the jury how the gang operated in the bar and thus put in proper context the scene depicted in the videotape. He opined, in general as to the gang motive for the crimes and his opinion was properly rooted in the evidence presented at trial. It constituted the classic gang evidence concerning the habit, operation and customs of gangs which has been allowed under Gardeley. Such testimony falls within the general rule that testimony concerning the culture and habits of criminal street gangs meets the criteria for the admission of expert testimony because such evidence is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Gardeley, supra, 14 Cal.4th 605, 617.) "It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.]" (Frank S., supra, 141 Cal.App.4th at p. 1196.)
Further the fact that the experts opinion in this case also included his view about an ultimate issue, i.e., that the crime was committed for the benefit of a street gang, does not change our view as to propriety of its admission. As noted elsewhere here, an expert can testify on "ultimate issue" for the jury, when the matter is beyond the jurys common experience. Valid subjects of gang expertise include motivation for a particular crime and whether a crime was committed to benefit or promote a gang. (People v. Killebrew, supra, 103 Cal.App.4th at p. 657.)
In People v. Wilson (1944) 25 Cal.2d 341, 349, the Supreme Court said of expert witness testimony: "[w]e think the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved. . . . Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in."
Marbach offered the sort of opinion which the Wilson court found permissible. His opinion on gang life and activity and how the gang operated in the El Jalisco Bar was entirely appropriate and could not be simplified to any other form. His description from the video surveillance camera could not have shown any better how the "taxing" system worked and how the Lennox 13 members carried it out. The video provided direct proof that Marbach had a legitimate basis for his testimony on "taxing" and that such "taxing" occurred on the night of Olveras murder. Additionally, the defense cross-examined Marbach to reveal any inconsistencies or impermissible assumptions made while he testified on direct examination. Marbach may have embraced ultimate issues of fact, but the testimony could not have been given in a simpler way without losing its meaning and connection to the case.
2. Experts Reliance on Hearsay Statements
Appellant further complains that the court erred in allowing the gang expert in this case to testify concerning the Lennox 13 activities in the El Jalisco Bar because that testimony was based on unreliable hearsay from Rodriguez. We find no error.
Under California law an expert may testify as to his or her opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions. Such sources may include hearsay. (See Gardeley, supra, 14 Cal.4th at pp. 618-619; Evid. Code, § 801, subd. (b) [an experts opinion may be based on matter "whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, . . . ."].) In People v. Vy (2004) 122 Cal.App.4th 1209, 1223, footnote 10, the court stated, "[o]f course, because the culture and habits of gangs are matters which are `sufficiently beyond common experience that the opinion of an expert would assist the trier of fact (Evid. Code, § 801, subd. (a)), opinion testimony from a gang expert, subject to the limitations applicable to expert testimony generally, is proper. [Citation.] Such an expert — like other experts — may give opinion testimony that is based upon hearsay, including conversations with gang members as well as with the defendant. [Citations.] Such opinions may also be based upon the experts personal investigation of past crimes by gang members and information about gangs learned from the experts colleagues or from other law enforcement agencies. [Citations.]"
This view was reaffirmed in People v. Thomas II (2005) 130 Cal.App.4th 1202, 1209-1210, where the court determined that a gang expert could rely on hearsay information from other gang members to support his opinion that the defendant was a gang member.
In view of this authority, we find that the court did not err in allowing the expert in this case to relate information obtained from Rodriguez concerning the Lennox 13 activities at the bar. The court properly cautioned the jury that this information was being admitted, not for its truth, but for a non-hearsay purpose to explain the basis of the experts opinions.
3. Appellants Confrontation Clause Complaint under Crawford
Appellant claims that allowing the expert to relay information to the jury obtained from Rodriguez also requires reversal under Crawford v. Washington (2004) 541 U.S. 36, 51. In Crawford, the Supreme Court held that out-of-court, testimonial statements by a witness are inadmissible, under the Confrontation Clause, unless that witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. (Ibid.) Crawford found that ex parte statements elicited from witnesses under pressure from an interrogating government official such as the police should not be admitted unless that witness, or the interrogating officer, was available to testify in court about the statements made. (Id. at p. 53.)
Appellant claims that Marbach used information obtained from Rodriguez alone to, "walk the jurors through the video and [opine] on the guilt of appellant." Appellant argues that Marbach merely "acted as a conduit" for Rodriguezs testimony and therefore, violated Crawford because Rodriguez was an out-of-court witness whose ex parte testimonial statements implicated appellant.
This issue was squarely addressed and, in our view, properly resolved in Thomas II, where Division Two of the Fourth District concluded: "Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the experts opinion. Crawford itself states that the Confrontation Clause `does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. (Crawford, supra, 541 U.S. at p. 59, fn. 9, 124 S.Ct. at p. 1369, fn. 9, citing Tennessee v. Street (1985) 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425.)" (People v. Thomas II, supra, 130 Cal.App.4th at p. 1210.)
Here, as discussed above, Marbachs testimony does not require reversal because the statements the expert conveyed (from Rodriguez) were not offered for a hearsay purpose. Instead, the prosecution offered the testimony in question to show the basis for his opinions so that the jury could weigh his expert authority. Evidence Code section 802 explicitly states an expert witness, "testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based." Along these lines, the court specifically gave an instruction, at defense counsels request, that his words regarding gang activities were not to be taken for their truth, but to assess his ability as an expert witness. There is no sound argument under Crawford that the prosecution violated the Sixth Amendments Confrontation Clause by allowing Marbach to testify in this fashion.
In addition, the evidence in this case provided by Rodriguez did not directly implicate appellant. Although Rodriguez claimed appellant was the shooter, that accusation was not presented to the jury. Nothing conveyed to the jury from Rodriguez directly implicated appellant. As the court in Thomas II observed on this point, "[a]lthough no published California case has yet addressed whether Crawford applies to hearsay statements that are used not as direct evidence against the defendant but merely as the basis for an experts opinion, courts in other jurisdictions have held upheld such use. (See People v. Goldstein (2004) 14 A.D.3d 32, 38 [786 N.Y.S.2d 428, 432]; Howard v. Walker (W.D.N.Y., July 21, 2004, No. 98-CV-6427FE) 2004 WL 1638197, 2004 U.S. Dist. Lexis 14425; United States v. Stone (E.D.Tenn., July 8, 2004, No. 1:02-CR-189) 222 F.R.D. 334.)" (People v. Thomas II, supra, 130 Cal.App.4th at p. 1210.)
In view of all of the foregoing we conclude that appellants complaints about the admission of the gang evidence and gang expert testimony lack merit.
In any event, any error in the courts admission of Marbachs testimony concerning the gangs activities in the bar and the gang motive behind these crimes is harmless. The evidence supporting appellants murder conviction and the gang enhancement is overwhelming. The videotape clearly shows appellant inside the bar interacting with other known gang members and taking direction from one of them shortly before the shooting. An eyewitness identified Rodriguez and a person wearing a shirt closely resembling the one appellant is seen wearing that night, fleeing from the scene immediately after the shots were fired. Furthermore appellants jail house conversation with Rodriguez and Vacio clearly implicates him in the crimes. Appellants gang affiliation is demonstrated by the number and type of his gang tattoos and the other items the police collected from appellants home. All of this evidence, though circumstantial, is sufficient to support appellants murder conviction and the gang enhancement. Thus even had the court excluded the complained of gang expert opinion, it is not reasonably likely that the jury would have reached different verdicts.
Our conclusion also disposes of appellants complaints about the sufficiency of the evidence supporting his murder conviction and gang enhancement as well as his complaint about the admission of gang evidence in generally. These additional arguments are dependent upon this court adopting the conclusion that the gang experts testimony should not have been admitted. However, having found no reversible error as to the admission of the expert evidence these additional arguments also fail and we need not address them.
II. The Imposition of Additional Court Security Fees
Respondent notes the lower court failed to impose a $20 security fee pursuant to section 1465.8, on each of appellants two convictions.
Section 1465.8, subdivision (a)(1) provides: "To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . ." This section "unambiguously requires a fee to be imposed for each of defendants convictions. Under this statute, a court security fee attaches to `every conviction for a criminal offense." (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.) Thus, the judgment must be modified to reflect the imposition of two security fees ($20 each) on the two counts upon which appellant was convicted.
DISPOSITION
The judgment is modified to add two $20 security fees under Penal Code section 1465.8 to the judgment, so that the total security fee defendant is obligated to pay is $40. As so modified, the judgment is affirmed.
The cause is remanded to the superior court with directions to prepare a new abstract of judgment to reflect the modification in the judgment and to forward the new abstract to the corrections officials.
We concur:
PERLUSS, P. J.
ZELON, J.