Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. BA328051, Mary Strobel, Judge.
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Oscar Alberto Parada appeals from the judgment entered following a jury trial in which he was convicted of unlawful possession of a firearm and two counts of carrying a loaded firearm, with gang findings as to each count. Appellant contends his rights to due process and a jury trial were violated by the gang expert’s opinion testimony addressing an ultimate fact and that the evidence was insufficient to support the gang enhancement findings. We affirm.
FACTS
At about 5:40 p.m. on August 25, 2007, Los Angeles Police Department Officers Jeffrie Norat and Mario Morales saw appellant riding his bicycle toward their marked police car. Appellant looked in the direction of the police car, dropped his bicycle, and ran. The officers followed appellant in their car. As Norat shouted “stop” at appellant, appellant removed a gun from his pocket and dropped it on the street. Appellant ran another 20 feet, then stopped. The gun was a small, loaded semi-automatic with a round chambered and five more in the magazine. It was registered to a woman in San Bernardino County who had reported it stolen more than two months earlier.
Unless otherwise noted, all further date references are to 2007.
Appellant admitted to Norat that he was a member of the Indiana Dukes gang and that his moniker was “Trouble.” Appellant had “IDKS,” which signified the Indiana Dukes gang, tattooed on his forehead. The area where Morales and Norat observed and arrested appellant was within the territory claimed by the Indiana Dukes gang.
Morales testified as an expert regarding the Indiana Dukes gang. The gang used the initials “IDKS” and wore Duke University “blue devil” team apparel. Morales also testified regarding the gang’s primary activities and size. He testified that appellant was a documented and self-admitted member of the gang with several tattoos pertaining to the gang, including “IDKS,” two horns, and “devil” on his forehead; “Indiana” on an arm; and “13” -- signifying alignment with the Mexican Mafia -- on his calves.
Morales opined that appellant was an active member of the gang. He based this opinion on the nature and visibility of appellant’s tattoos and his acquisition of new gang-related tattoos over the two years in which the police had been in contact with him and photographed him. Morales also based his opinion on two prior incidents. On May 1, 2006, appellant used a gun to commit a robbery in which he identified himself to the victims as a member of the Indiana Dukes gang. The second incident occurred three days later when appellant admitted his membership in the Indiana Dukes gang upon his arrest. At the time of this arrest, he was wearing a “blue Dukes” sweatshirt. Finally, Morales cited appellant’s presence inside the territory claimed by the Indiana Dukes gang when Norat and Morales arrested him on August 25, which was significant because appellant was then living in Visalia in central California. Morales opined that a gang member who had moved out of the area and was attempting to get out of the gang would not return to the gang’s territory because the member could be compelled by the gang to commit crimes.
Morales testified that in May of 2007, an Indiana Dukes gang member had been killed in his own territory by a rival gang, the Laguna Park Vikings. The killing occurred “just blocks away” from where appellant was arrested. Eight days before appellant’s arrest, the police arrested another member of the Indiana Dukes gang carrying a gun about one block from the site of appellant’s arrest.
Morales explained the importance in gang culture of fear and intimidation, and how the possession and use of a gun worked to enhance such fear and intimidation. He further opined that if an active member of the Indiana Dukes gang carried a loaded gun in the gang’s territory, he was doing so for the benefit of, at the direction of, or in association with a criminal street gang and with a specific intent to promote, further, and assist in criminal conduct by gang members. This was because the possession of the gun would facilitate the commission of more violent crimes, such as robberies, assaults, and murders. Furthermore, the gang would reap additional benefits, in the form of increased intimidation, from people’s knowledge that the gang member was armed with a gun. Morales further opined that a member of the Indiana Dukes gang who rode around the area claimed by the gang on a bicycle while carrying a loaded handgun would be “patrolling the neighborhood” for the safety of members of his own gang and to commit crimes against members of other gangs and residents of the neighborhood.
After Parada was advised of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 444 [86 S.Ct. 1602], he gave Morales and Norat a statement: “I was cruising on my bike. Then I seen the CRASH unit. I hopped off the bike and then I ran and throw the pistol by the time you guys were already there. I just gave up and put my hands up. I had just got it two minutes before that happened.” Morales wrote out the statement and appellant signed it.
Appellant’s mother, Regina Bustos, testified that when appellant was released from custody for a juvenile matter in March of 2007, she took him to her new home in Visalia. Appellant had gotten the “IDKS” tattoo on his forehead while in custody. Appellant stayed in Visalia until Bustos brought him to Los Angeles in August to see his probation officer. The probation officer had phoned Bustos and told her to bring appellant to Los Angeles to meet with him. During the meeting with the probation officer, appellant said he wanted to remove his tattoos. The probation officer told appellant to return to Visalia. Bustos left appellant in Los Angeles because he wanted to attend a party the next day. Appellant’s father was supposed to drive appellant back to Visalia the following week. Appellant did not return, but called Bustos after about a week and asked her to drive to Los Angeles to pick him up. Then appellant called her and told her he was in jail. Appellant did not ask the probation officer for permission to stay in Los Angeles to attend the party, and the probation officer did not give appellant such permission.
The parties had stipulated that Bustos told a defense investigator a somewhat different version of events: that appellant asked her if he could attend a party in Los Angeles, and she said he could if his probation officer gave him permission to do so; that they made an appointment with the probation officer, drove to Los Angeles, and the officer gave appellant permission to attend the party; and that one of appellant’s friends was supposed to drive him back to Visalia, and if the friend could not do so, appellant’s father had agreed to drive him.
Appellant’s friend Jazmin Cervantes testified that appellant phoned her on the date of his arrest and arranged to come to her house at around 4:00 p.m. that afternoon. He never showed up. Cervantes lived on La Puerta Street near the intersection of Indiana Street and Olympic Boulevard, about a block from the site where appellant was arrested. Cervantes knew that she spoke with appellant on August 25 because appellant’s mother phoned her and told her the date.
Appellant’s probation officer, Bryant McCalister, testified that he spoke to appellant by telephone in May of 2007 and told appellant that they could just speak on the telephone, appellant did not have to travel to Los Angeles to meet with him, and a new probation officer would be assigned in appellant’s county of residence. McCalister denied telling appellant’s mother that appellant had to come to Los Angeles to meet with him. McCalister met with appellant and his mother in person on August 10, fifteen days before his arrest, after appellant telephoned, said he was in Los Angeles, and asked to meet with McCalister. During their meeting, neither appellant nor his mother mentioned anything about appellant staying in Los Angeles to attend a party. McCalister would not have given appellant permission to do so. Appellant told McCalister he was going to return to his mother’s home in Visalia the same day, and McCalister instructed him to do so. McCalister specifically told appellant not to be on Indiana Street or in his gang’s neighborhood.
The jury convicted appellant of unlawful possession of a firearm by a ward of the juvenile court (Pen. Code, § 12021, subd. (e)), carrying a loaded firearm while an active participant in a criminal street gang (§ 12031, subd. (a)(2)(C)), and carrying a loaded firearm that was not registered to him (§ 12031, subd. (a)(2)(F)). The jury found that each of these offenses 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. Appellant admitted he had suffered a prior juvenile adjudication for robbery, and the court found this adjudication constituted a “strike” within the scope of the Three Strikes Law. The court sentenced appellant to a second strike prison term of four years and eight months.
All further statutory references are to the Penal Code, unless otherwise specified.
DISCUSSION
1. Gang expert’s opinion testimony
Appellant contends that Morales’s expert testimony in response to two hypothetical questions violated his rights to due process and a jury trial because it addressed an ultimate issue in the case. Appellant also seemingly argues that Morales’s testimony constituted inadmissible opinion testimony as to appellant’s state of mind and conduct.
Although appellant’s opening brief appears to argue this ground, his reply brief concedes the testimony was “currently admissible under California Supreme Court law….”
The testimony in controversy is the following:
Prosecutor: I would like you to assume the following facts:
Assume you have an Indiana Dukes gang member in the area of Union Pacific and Prado on August 25, 2007, with a loaded handgun concealed on his person.
Do you have an opinion as to whether the possession of the firearm by that gang member would be committed for the benefit of, at the direction of, or in association with a criminal street gang with a specific intent to promote, further, and assist in criminal conduct by gang members?
Morales: Yes, ma’am.
Prosecutor: What is your opinion?
Morales: That the gang member in possession of a firearm in the scenario you just gave me would benefit and further the gang.
Prosecutor: What is the basis of your opinion?
Morales: Umm, from my personal training and experience and investigating gang crimes. A gang member in possession of a handgun sort of opens the door for them to be involved in more violent crimes. For example, robberies, assaults, even murders.
Prosecutor: How does the fact of gang members being known to be armed or having guns affect or benefit the gang?
Defense counsel: Objection, leading.
Court: Sustained.
Prosecutor: Would the fact that gang members are armed with handguns, if that knowledge was to be available to people, would that benefit the gang?
Defense counsel: Objection, leading.
Court: Overruled.
Morales: Yes.
Prosecutor: How so?
Morales: Because persons who would know this gang member would be armed would be scared to be around them. They would be scared to go outside their homes or even to the local stores, knowing these gang members are armed because of the types of crimes, like I said earlier, they can possibly be involved in. And I form that opinion based on just investigating gang crimes and from my experience.
Prosecutor: And a gang member such as an Indiana gang member riding around on a bicycle with a loaded handgun at this particular location, what would he be doing in your opinion?
Morales: In my opinion, he is patrolling the neighborhood, sort of like the police patrol a certain area. Gang members patrol their gang territory. Not only to keep members of their gang safe from rival gang members, but also to commit crimes against other gang members and people that reside within their own gang territory.
Appellant forfeited the evidentiary and constitutional claims he now asserts by failing to object on these grounds in the trial court. (People v. Williams (1997) 16 Cal.4th 153, 208, 250.) Appellant did not object to this testimony in the trial court on any of the grounds raised in his appeal. In a hearing outside the presence of the jury concerning the scope of Morales’s testimony, appellant objected only to introduction of the details regarding the 2006 robbery.
Appellant attempts to avoid forfeiture by arguing that objection would have been futile based on established precedent permitting “such expert testimony based on hypothetical questions ….” He cites numerous cases from the California Supreme Court and Courts of Appeal addressing the proper scope of expert testimony under California evidentiary law. The gravamen of appellant’s contentions on appeal, however, is that, even if Morales’s testimony complied with California evidentiary principles, it violated appellant’s federal constitutional rights to due process and a jury trial by usurping the province of the jury. These claims are distinct from the evidentiary claim and have not been addressed by any published case. None of the authorities cited by appellant would require an objection on the constitutional grounds to be overruled. Appellant’s evidentiary claim is based upon People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), which found that an expert gave improper opinion testimony by testifying that each person in three cars knew there were guns in two of the cars and jointly possessed the guns with every other person in all three cars for their mutual protection. (Id. at p. 658.) If appellant believed Morales’s testimony ran afoul of Killebrew, an objection on that ground would have been supported by Killebrew, not foreclosed by precedent, and therefore not futile. We therefore conclude appellant forfeited the claims raised on appeal.
Even if appellant had preserved his claims, we would not find them meritorious. We understand appellant’s opening brief to raise three arguments concerning Morales’s expert testimony, the first of which appellant appears to abandon in his reply brief: 1) that Morales’s testimony violated California evidence law; 2) that it deprived appellant of due process; and 3) that it usurped the role of the jury. All of the arguments lack merit.
We discuss appellant’s evidentiary argument first. Where, as here, a gang enhancement is alleged, “expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’” (People v. Valdez (1997) 58 Cal.App.4th 494, 506 (Valdez) quoting Evid. Code, § 801, subd. (a).) The gang expert may testify to an opinion based upon facts shown by the evidence and restated in a hypothetical question asking the expert to assume the truth of those facts. (People v. Gonzalez (2006) 38 Cal.4th 932, 946 (Gonzalez).) An expert may not, however, opine the defendant had particular knowledge or a specific intent. (Ibid.; People v. Garcia (2007) 153 Cal.App.4th 1499, 1513 (Garcia).) Specificity and detail in a hypothetical question asked of an expert do not convert an otherwise proper answer into a prohibited opinion regarding a defendant’s subjective mental state. (People v. Ward (2005) 36 Cal.4th 186, 209-210.) “[T]here is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons.” (Gonzalez, supra,38 Cal.4th at p. 946, fn. 3.)
Furthermore, opinion evidence is admissible even if it encompasses the ultimate issue in the case. (Evid. Code, § 805; Valdez, supra, 58 Cal.App.4th at p. 506.) “‘There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.’” (Valdez, supra, 58 Cal.App.4th at p. 507, quoting People v. Wilson (1944) 25 Cal.3d 341, 349.) The opinion must not, however, invade the province of the jury to decide a case. (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1182.) Expert opinion regarding whether and how a crime would have been committed for the benefit of a gang has repeatedly been deemed admissible, despite its coincidence with an issue to be determined by the jury. (See, e.g., Garcia, supra, 153 Cal.App.4th at pp. 1513-1514; Valdez, supra, 58 Cal.App.4th at p. 509.) “Such an opinion was not tantamount to an opinion of guilt or, in this case, that the enhancement allegation was true, for there were other elements to the allegation that had to be proved.” (Valdez, supra, 58 Cal.App.4th at p. 509.)
Morales did not purport to testify that appellant or any other specific individual subjectively had particular knowledge or intent. He instead testified that the conduct by the hypothetical gang member described in the prosecutor’s questions would “benefit and further the gang,” and constitute patrolling the gang’s neighborhood for the benefit of the gang. This did not exceed the bounds of permissible expert testimony, and appellant’s evidentiary claim, if he is indeed making one, would have no merit.
Appellant’s claim that the admission of Morales’s expert testimony deprived him of due process also lacks merit. The admission of evidence may violate due process if there is no permissible inference a jury may draw from the evidence. (People v. Steele (2002) 27 Cal.4th 1230, 1246; People v. Albarran (2007) 149 Cal.App.4th 214, 229.) Furthermore, “[t]he admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.” (People v. Falsetta (1999) 21 Cal.4th 903, 913.)
The admission of Morales’s testimony did not violate due process as it supported permissible inferences regarding the mental state elements of the gang enhancement allegation. Moreover, neither the nature nor the effect of the testimony was prejudicial in the sense that it would render appellant’s trial fundamentally unfair. Accordingly, appellant’s due process claim has no merit.
Nor did Morales’s testimony usurp or infringe upon the role of the jury. His testimony provided support for findings on the elements of the gang enhancement allegation, but he did not express an opinion on each element, nor did he effectively testify that the enhancement allegation was true. The jury was permitted to draw its own inferences about appellant’s intent and whether the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang. Furthermore, the jury was instructed that it was not required to accept the expert witness’s opinion testimony as true or correct, the meaning and importance of the testimony was for the jury to decide, the jury must decide whether the information upon which the expert relied was true and accurate, and the jury was free to disregard any opinion it found to be unbelievable, unreasonable, or unsupported by the evidence. The jury was also instructed that it was up to the jury to decide whether the facts assumed in a hypothetical question had been proven. (CALCRIM No. 332.) Other instructions informed the jury that it was the jury’s role to decide what the facts were and that in order to find the gang enhancement allegation true, it must find that the prosecutor had proved beyond a reasonable doubt that the crime 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. (CALCRIM Nos. 104, 220, 1401.)
None of the cases appellant cites in support of his jury trial claim addresses the constitutional right to a jury trial. Each of the cases concerns whether an expert’s testimony violates Rule 704 of the Federal Rules of Evidence. They are therefore inapposite.
2. Sufficiency of evidence supporting gang enhancement
Appellant contends that the only evidence supporting the gang enhancement was Morales’s opinion testimony, and that this was insufficient to show 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.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
The testimony of Norat and Morales regarding appellant’s admission of his gang membership, together with photographic evidence of the existence, nature, and progressive acquisition of tattoos, provided substantial evidence that appellant was an active member of the Indiana Dukes gang at the time of the charged offense and lent some support to an inference that there was a gang-related motive for the charged offenses. Appellant’s conduct and Morales’s expert testimony provided substantial evidence to show 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. Although appellant resided in central California, he was arrested while riding around his gang’s territory with a loaded handgun, wearing gang attire and displaying a gang tattoo on his forehead. Appellant’s gang was apparently in a heightened state of alert due to the death of one of its members within its own turf at the hands of a rival gang. The arrest of another member of appellant’s gang in possession of a gun just one week earlier and just one block away tended to corroborate this state of alert. This evidence supported and enhanced the plausibility of Morales’s opinion testimony that a gang member riding a bicycle around his gang’s territory while carrying a loaded gun would be “patrolling” the area for the benefit of his gang. Collectively this evidence supported the challenged elements of the gang enhancement.
Although Cervantes’s testimony about appellant’s planned visit to her provided an alternative explanation for appellant’s presence in the neighborhood, it did not detract from the sufficiency of the prosecution’s evidence supporting the gang enhancement. Moreover, appellant was arrested approximately one hour and forty minutes after he was supposed to arrive at Cervantes’s house, and while a trip to visit her might have explained his presence in the area, it did not explain his possession of the loaded gun.
Similarly, the purported presence of appellant in Los Angeles to attend a party on or around August 11 did not explain appellant’s presence in his gang’s neighborhood on August 25 or his possession of the loaded gun. In addition, the party theory was subject to substantial doubt given the vast inconsistency between Bustos’s trial testimony and her prior statement to the defense investigator.
We therefore conclude substantial evidence supported the jury’s findings on the gang enhancement allegations.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J. ROTHSCHILD, J.