Opinion
A096214.
7-23-2003
THE PEOPLE, Plaintiff and Respondent, v. ISMAEL MICHAEL PIMENTEL, Defendant and Appellant.
After a jury trial, defendant Ismael Michael Pimentel was convicted of battery resulting in serious bodily injury, assault by means of force likely to produce great bodily injury, and participation in a criminal street gang, with related gang and bodily injury enhancements. Defendant contends that: (1) the trial court erred in permitting a gang expert to testify that jail booking records showed multiple admissions of gang membership by defendant; and (2) the gang participation conviction and sentence enhancement were unsupported by the evidence. We affirm the judgment, finding that any error in the admission of the booking evidence was harmless, and that the judgment is supported by sufficient, admissible evidence.
BACKGROUND
Defendant was charged by information with the following offenses: battery resulting in serious bodily injury (Pen. Code, § 243, subd. (d); count 1); assault with a deadly weapon and/or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 2); unlawful participation in a criminal street gang (§ 186.22, subd. (a); count 3); and commission of a battery or other offense for the benefit of a criminal street gang (§ 186.22, subd. (d); count 4). The information further alleged criminal street gang enhancements (§ 186.22, subd. (b)(1)) as to the first two counts, a great bodily injury enhancement (§ 12022.7, subd. (a)) as to the assault charge, five serious or violent prior convictions for assault with a deadly weapon (§§ 245, subd. (a)(2)/667, subd. (a)), and that defendant had previously served a prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise specified.
Jury trial commenced on March 27, 2001. On the prosecutions motions during trial, the information was amended to: (1) strike the portion of count 1 alleging use of a deadly weapon; (2) strike four of the strike priors in order to proceed on the case as a second strike rather than a third strike case; (3) dismiss the gang enhancement alleged in count 1; and (4) dismiss count 4.
Prosecution Case
On September 4, 2000, at approximately 7:00 p.m., Santos Bustamante and his cousin Luis were walking together on Halsey Avenue, near Hurlingame Avenue, in Redwood City. Bustamante, an immigrant from Mexico, had only been in the United States for eight days. He was wearing a blue T-shirt with the logo of his favorite sports team on the front. Defendant, accompanied by several other persons, walked up to Bustamante and asked him if he was a "scrap." "Scrap" is a derogatory term commonly used by Norteno gang members to address rival Sureno gang members. Bustamante, who does not speak English, could not understand defendant and did not respond.
Defendant punched Bustamante three times in the mouth with a closed fist. The punches were "strong, hard" blows that immediately caused Bustamante to bleed. The persons accompanying defendant then grabbed Bustamante and began to hit and kick him, until he was eventually able to run to his uncles house two blocks away. Luis, age 14 at the time of the incident, left the scene and called 911 from his cell phone. He saw defendant and his associates walk off in the direction of Fair Oaks Avenue.
Luis then walked to his uncles house where he found Bustamante. Police and paramedics responding to Bustamantes uncles house found Bustamante bleeding profusely from the mouth. Two of his front teeth had been knocked out, and his lips were bruised and swollen. Due to Bustamantes injuries and the need to get him to a hospital, police were unable to take a statement from him at his uncles house. Luis told police that Bustamantes assailant was a "Mexican" male wearing a black and red jersey and, possibly, tan pants.
Within 15 minutes of the beating, two suspects were detained on Fair Oaks Avenue. Luis was immediately taken to an in-field show-up where he positively identified defendant. Defendant was wearing a black and red jersey and tan pants. Luis told police the second suspect at the scene was "not involved." Luis also identified defendant at trial and was certain he was the person who punched Bustamante.
Bustamante identified defendant from a photo line-up on the night of the incident, as well as at the preliminary hearing 15 days later. He was also able to identify defendants clothing. Bustamante was not able to identify defendant at trial. Three police witnesses who saw defendant at the time of his arrest testified that defendants hair was shorter and he had more facial hair at the time of his arrest.
Deputy Juan Lopez, a gang expert from the San Mateo County Sheriffs Office, testified that he had been studying local gangs, speaking to gang members, and investigating gang-related incidents since 1991. Deputy Lopez testified that he was familiar with a gang known as "LMG" or the Little Mexico Gang that operated in the neighborhood where Bustamante was assaulted. He had learned about the LMG by speaking with many of its members, sometimes on a daily basis. The LMG is a Norteno gang aligned with Nuestra Familia, a prison gang that controls it.
According to Deputy Lopez, Hispanic gangs align themselves as either Surenos or Nortenos. Norteno gangs usually wear red and associate with the number 14, signifying the letter "N," the fourteenth letter of the alphabet. Common tattoos of LMG members include dots on their fingers, the Roman numeral "XIV," and the letters "LMG," "RWC" or "Redwood City." The Surenos, who wear blue, are rivals of Norteno gangs. Lopez confirmed that Nortenos commonly refer to Surenos by the derogatory term "scrap."
At one time, the LMG had as many as 250 members, but it was down to about 50 members at the time of trial. Deputy Lopez testified that gang members commonly hang out at 609 Hurlingame, about a block from the incident. The LMGs primary criminal activities are assaults, auto burglaries, and drug sales. They commonly burglarize automobiles in order to trade the stolen goods for drugs, which they can then sell for cash. LMG gang members use assaults to protect the gangs turf, to establish fear in the neighborhood, and to gain respect from other gang members.
Deputy Lopez testified that one of the members, Octavio Ponce, was convicted of an auto burglary in 2000. The burglary occurred in an area controlled by the LMG, and was committed for the benefit of the gang. Deputy Lopez opined that everybody in the gang knows about the activities of other members. Members talk with each other to stay current on the gangs activities.
According to Deputy Lopez, defendant has been a member of the LMG since 1991. He admitted his membership in the gang to Lopez personally on four different occasions between 1991 and 1993. Lopez testified based on computer-generated police department reports that defendant also admitted membership to other police officers in 1992, 1996, and 1997. Based on other reports generated from a county jail database, Lopez further testified that defendant made similar admissions to jail classification personnel on six occasions when he was being booked into county jail. Lopez explained that jail personnel routinely ask about gang affiliation during the booking process for jail security purposes.
Deputy Lopez identified numerous gang-related tattoos on defendants person, including four dots on his fingers signifying the number 14, the letters "LMG," the Roman numeral "XIV," and the words "Redwood City." Lopez opined that defendant was an active, current member of the LMG, and that the assault against Santos Bustamante was committed for the benefit of the gang.
Defense Case
Defendants defense was that he was not the person who assaulted the victim. Maria Hunter, who lived at 609 Hurlingame, testified that defendant was with her at the time of the incident. The defense pointed to discrepancies in Bustamantes and Luiss testimony concerning whether the person who spoke to Bustamante was the person who hit him, whether he was initially approached by two people or four people, whether any of the other assailants were also wearing red, whether a third person accompanied Bustamante and Luis on their walk, and where the man who hit Bustamante was standing. A defense investigator testified that Luis told him that he could not identify or describe the person who assaulted Bustamante.
Verdict and Sentence
The jury found defendant guilty of all remaining charges and found the gang and great bodily injury enhancements to be true. The court found the remaining prior conviction enhancements true. It sentenced defendant to a total aggregate term of 12 years, 4 months in prison. The court stayed the great bodily injury enhancement and struck the 10-year gang enhancement for sentencing purposes. Defendant filed a timely notice of appeal.
DISCUSSION
Admissions to Jail Personnel
Defendant contends the trial court erred in permitting the prosecutions gang expert, Deputy Juan Lopez, to testify that defendant admitted gang membership on several occasions while being booked into the county jail. The testimony was inherently prejudicial, defendant maintains, because it revealed to the jury that he had been arrested and booked into jail multiple other times.
According to defendant, the challenged testimony was inadmissible because: (1) it was merely cumulative to other evidence of defendants gang membership and any arguable probative value it had was far outweighed by its inflammatory and prejudicial effect; (2) it constituted double hearsay that the jury should not have been permitted to hear without a determination by the trial court of its reliability; and (3) defendants admissions to jail personnel were obtained in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. We agree, in part, with defendants contentions.
Probative Value Versus Prejudicial Effect
At trial, out of the jurys presence, the People explained that Lopezs testimony concerning defendants jailhouse statements was relevant to prove the defendants continued membership in the LMG at the time of the assault. The prosecution asserted that the experts testimony had been "sanitized" to avoid any specifics regarding the reasons for defendants arrests, and that the expert was limited to stating that jailhouse booking records showed six admissions of gang membership by defendant, the most recent being on September 4, 2000. In addition, the trial court instructed the jury not to consider that the admissions had been made in a jail facility.
The courts instruction was as follows: "Ladies and gentlemen, before we hear this subsequent testimony I just want to inform you that this information that the officer is testifying about through the computer system regarding classification in the jail, its to be considered by you only as to the issue of whether or not the individual in question admitted that he or she was part of a gang. The fact that it may have been done in a jail facility, you are not to consider that. Its not for your consideration, and youre just to ignore that. Its — the information that was provided is what is the evidence thats being presented. Its a limiting instruction as to how you view this."
We agree that the evidence had significant probative value in the circumstances of this case. The People had the burden of proving beyond a reasonable doubt that defendant was an active participant in a criminal street gang at the time of the assault in 2000. (§ 186.22, subd. (a).) Although Lopez offered his opinion to that effect, the credibility of that opinion was enhanced to the extent it was based on up-to-date information and multiple sources.
Defendants last direct admission of gang membership to Lopez was in 1993. Lopez was able to testify to admissions defendant made to other officers as late as 1997, and to his evident gang tattoos. But this evidence could not rule out the possibility that defendant left the gang after 1997. In fact, on cross-examination, defense counsel tried to get Lopez to agree that the appearance of gang tattoos on a person entering jail, even if only indicative of past membership in the gang, might induce a former member to claim a continuing gang affiliation for self-protection purposes. Later, defense counsel questioned Lopez about whether gang members ever leave the gang and with what frequency. Had Lopez not been allowed to testify that he based his conclusions, in part, on information developed as recently as 2000, the defense would have been in a stronger position to attack the foundation for his opinion that defendant was an active member of the LMG when the assault occurred.
It is true, as defendant contends, that evidence of his gang admissions could have been put before the jury without mentioning the jail context. However, the trial court was not required to order this. In the circumstances of this case, we cannot say that it was an abuse of discretion for the trial court to address the issue of prejudice in a different fashion, by instructing the jury not to consider the fact that the admissions were made in a jail facility.
In weighing the probative value of the evidence against the risk of prejudice, we must view Lopezs testimony on the jailhouse admissions in light of all of the evidence heard by the jury. Undoubtedly, the suggestion that a defendant has been jailed on five occasions other than his current arrest carries a non-negligible risk of prejudice. However, the jury in this case heard compelling evidence, unchallenged by the defense, that defendant was, at least in the past, an active member of a street gang that routinely committed violent assaults, burglarized automobiles, and trafficked in illegal drugs. The additional suggestion that defendant had been booked in jail on more than one occasion adds little to the impression otherwise left by the evidence that defendant, as an LMG gang member, would have had more than his share of brushes with law enforcement. On this record, we find no abuse of discretion in the trial courts determination that the probative value of the jailhouse admissions was not substantially outweighed by the risk of undue prejudice.
The defense strategy was not to deny defendants past membership in the LMG, nor to claim the gangs activities were all benign. In his closing argument, defense counsel stated: "This Little Mexico Gang thats described by Deputy Lopez is not on trial here now, and Im not standing here defending Little Mexico Gang or Surenos or Nortenos or anything to do with that. I only represent [the defendant]. So I cant attack what Deputy Lopez said with any good faith because I dont believe it applies in this case." At no point did counsel argue or offer evidence that defendant had never been a member of the LMG. The defense argued simply that there was reasonable doubt whether defendant was the person in the red jersey who punched Bustamante.
Double Hearsay
Defendant next contends that Lopezs testimony concerning the jailhouse admissions was double hearsay that the court should have excluded as unreliable under People v. Gardeley (1996) 14 Cal.4th 605, 927 P.2d 713 (Gardeley).
Gardeley arose from a prosecution for violent crimes alleged to have been committed for the benefit of a criminal street gang under section 186.22, subdivision (b)(1) and former subdivision (c). (Gardeley, supra, 14 Cal.4th at p. 611.) A police gang expert opined that each of three prior criminal incidents involving defendants was a gang-related criminal activity. (Id. at p. 613.) Over the defenses hearsay objections, the expert was allowed to testify as to out-of-court statements made to him by another gang member about the gang and its activities. (Id. at pp. 612-613.) The trial court allowed this testimony not for the truth of the statements, but solely as a basis for the experts opinion that the three prior crimes were gang-related. (Ibid.) The Court of Appeal reversed defendants subsequent gang-related convictions and sentence enhancements, in part on the ground that the experts opinion regarding the three prior incidents was not competent evidence because it was not based on facts in evidence and the expert had no personal knowledge of the facts regarding these incidents. (Id. at p. 614.)
The Supreme Court reversed. It held that expert opinion testimony is competent evidence in prosecutions under section 186.22 even if based in part on hearsay evidence that is not itself admissible as proof of the facts asserted therein. (Gardeley, supra, 14 Cal.4th at p. 626.) In reaching this result, the Court reaffirmed long-standing case law permitting experts to base their opinions on inadmissible matter, including hearsay, as long as material meets a threshold test of reliability. (Id. at p. 618.) Further, the Court explained, because Evidence Code section 802 permits an expert witness to explain the reasons for his opinion and the matter on which it is based, the expert can testify as to hearsay and other evidence he relied on in forming his opinion. (Id. at pp. 618-619.) However, such testimony is not independent proof of any fact, and the trial court therefore has substantial discretion to control the manner in which the expert is questioned, weighing the probative value of inadmissible evidence relied upon by an expert against the risk that the jury might consider it independent proof of the facts asserted therein. (Id. at p. 619.)
Deputy Lopezs testimony concerning the jailhouse admissions describes the contents of a document created by others purporting to record out-of-court admissions made by defendant. Had the admissions been made directly to Lopez, he could testify about them for their truth as the admissions of a party to the proceeding. (Evid. Code, § 1220.) But, as defendant points out, Lopez in fact was testifying as to out-of-court communications made by (1) the jail employees who originally recorded defendants responses concerning gang affiliation, and (2) other jail personnel who prepared the computerized tabulation of defendants prior responses that Lopez reviewed. If offered to prove that defendant did indeed admit to LMG membership on these occasions, Lopezs testimony would be inadmissible as double hearsay. (See Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1072-1074, 820 P.2d 262 [would be double hearsay for non-investigating officer to testify about what witnesses told the investigating officer].)
Although Lopez also testified, based on police department computer records, that defendant made gang admissions to other police officers, defendant makes no argument on appeal that this testimony was erroneously admitted.
Lopezs testimony concerning defendants jailhouse admissions was admissible under Gardeley only if three conditions were satisfied: (1) the record of defendants statements to jail personnel that Lopez reviewed was reliable as a basis for expert opinion; (2) Lopezs testimony about the record was not being offered to prove defendants membership in the LMG but to explain the basis for Lopezs opinion on that subject; and (3) the probative value of the testimony for the latter purpose was not outweighed by the risk that the jury would consider it as independent proof of defendants gang membership. (Gardeley, supra , 14 Cal.4th at pp. 618-619.)
We reject defendants argument that the jailhouse records Lopez relied on were unreliable as a matter of law. No rule prevents an expert from relying on records prepared and kept by others in arriving at an expert opinion. (See, e.g., People v. Valdez (1997) 58 Cal.App.4th 494, 503 [police gang records]; Genrich v. State of California (1988) 202 Cal. App. 3d 221, 229, 248 Cal. Rptr. 303 [computerized accident records]; Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180 Cal. App. 3d 1244, 1259-1261, 226 Cal. Rptr. 306 [tests performed by other experts].) We also find no authority for defendants assertion that the trial court was required to make a separate, on-the-record determination about the reliability of the jailhouse records in the course of ruling on defense counsels hearsay objection.
However, extrajudicial statements upon which an expert relies cannot be used for the improper, hearsay purpose of establishing the truth of such statements. The jury must normally be admonished that it may consider such statements solely for the limited purpose of evaluating the weight and credibility of the experts opinion, and not for their truth. (People v. Montiel (1993) 5 Cal.4th 877, 919, 855 P.2d 1277.) For example, in People v. Valdez, supra, the trial court repeatedly admonished the jury that hearsay statements relied upon by the gang expert in that case should not be considered for their truth. (58 Cal.App.4th at p. 511.) Although a limiting instruction might alleviate any prejudice, the court must consider the risk that the jury will consider the statements for their truth despite the instruction. (Ibid.)
In this case, the trial court did not admonish the jury that it could only consider the booking records for the limited purpose of determining the weight and credibility of Lopezs opinions. In fact, the trial court told the jury to consider the evidence "only as to the issue of whether or not [defendant] admitted that he . . . was part of a gang." Thus, it specifically invited the jury to consider hearsay jail records for the truth of the facts asserted in them, i.e., that defendant had admitted gang membership during the booking process on six dates, including September 4, 2000. That admonition was improper under Gardeley, supra .
Based on the admonition given in this case, we conclude that Lopezs testimony concerning defendants jailhouse statements was improperly admitted. However, the error is not prejudicial unless it is reasonably probable that the jury would have reached a result more favorable to the defendant absent the erroneously admitted evidence. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) In analyzing this issue, we presume that the jury followed the courts instructions and considered that testimony as evidence that defendant admitted gang membership to jail personnel on six occasions, including the date of the assault.
As noted earlier, there was considerable other evidence that defendant had been a long-time member of the LMG gang, including admissions he made on several occasions between 1991 and 1997 to Deputy Lopez and other officers, and his very visible gang tattoos. Independent of his jailhouse admissions, this evidence certainly supported an inference, albeit not conclusive, that defendant remained a member of LMG up to and including the day of the assault. More importantly, by convicting defendant of battery and assault, the jury in this case implicitly found beyond a reasonable doubt that defendant was the person who asked Bustamante if he was a "scrap" and who punched him when he failed to answer. Other, undisputed evidence established that this attack bore LMGs unmistakable signature. It took place on LMGs turf, the groups leader (proven to be defendant) wore LMG colors and used LMG slang, and there was no provocation for the attack other than the Sureno color of Bustamantes T-shirt. No evidence was presented that the crime was not gang-motivated or that defendant was not an active gang member. On this record, there is no reasonable probability that the jury would have returned a different verdict if evidence of defendants jailhouse admissions had been excluded.
Miranda Violation
Defendant contends that his admissions of gang membership to jail personnel should also have been excluded because his statements during the booking process were obtained in violation of Miranda v. Arizona, supra, 384 U.S. 436. Defendant asserts that he was questioned about his gang membership in a manner reasonably likely to elicit incriminating responses, without having knowingly and intelligently waived his right to remain silent and to have an attorney present during questioning. (Id. at pp. 444-445; United States v. Mata-Abundiz (9th Cir. 1983) 717 F.2d 1277, 1280 [recognizing limited Miranda exception for routine booking questions not reasonably likely to elicit an incriminating response].)
We will assume for purposes of analysis that defendant did not knowingly and intelligently waive his Miranda rights before being asked about his gang membership on any of these occasions. However, there is no evidence before us as to whether Miranda warnings were in fact given on any of the six occasions in issue.
Defendant failed to raise his Miranda claim in the trial court, and therefore waived it. (See People v. Seaton (2001) 26 Cal.4th 598, 656.) Anticipating this problem, defendant argues in the alternative that his trial counsel was ineffective in failing to raise the issue.
In evaluating defendants ineffective assistance claim, we note first of all that no plausible Miranda objection could have been made except as to defendants admission on September 4, 2000, the date of his arrest on the current charges. As stated in People v. Morris (1987) 192 Cal. App. 3d 380, 390, 237 Cal. Rptr. 402, it is only when there is a direct link between the question asked at booking and the crime for which the defendant has been placed in custody that an incriminating response is foreseeable: "So long as the offense for which the suspect is in custody is not itself gang-related, there is no reason the officer should foresee the question will elicit an incriminating response. In such a circumstance, an incriminating response is not the product of affirmative police conduct and would be admissible in the absence of Miranda warnings. [P] The difference in the instant case is the direct and recognized link between the booking officers inquiry and the crime for which defendant had been arrested and was in custody." We do not believe that a jail employee violates a defendants Miranda rights by soliciting routine jail security information that might become incriminating in the future if the defendant later commits and is prosecuted for a gang-related crime.
Thus, defendants ineffective assistance claim boils down to whether his attorney was ineffective for failing to raise a Miranda objection to testimony that he admitted gang membership to jail personnel on September 4, 2000, and whether he was prejudiced thereby. (See Strickland v. Washington (1984) 466 U.S. 668, 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) To demonstrate ineffective assistance of counsel, a defendant must show that: (1) counsels performance was deficient under prevailing professional norms; and (2) but for counsels failings, it is reasonably probable that the result of the proceeding would have been more favorable to him. (People v. Seaton, supra, 26 Cal.4th 598, 666.)
We need not decide whether counsel was ineffective in failing to raise the Miranda issue because there is no reasonable probability that defendant would have obtained a more favorable outcome had evidence of his September 4 admission been excluded. (People v. Holt (1997) 15 Cal.4th 619, 703, 937 P.2d 213.)
Defendant points out that admission of a confession obtained in violation of Miranda is reversible error per se. (See People v. Morris, supra, 192 Cal. App. 3d at pp. 391-392.) We consider defendants September 4 statement to be an incriminating admission, not a confession to a crime. An improper admission of such evidence over a timely Miranda objection would be subject to evaluation for prejudice under Chapman v. California (1967) 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824. Here, such objection was waived by the failure to raise it. For purposes of determining whether the failure to make the objection was prejudicial, we assume the objection would have been sustained, and the evidence excluded had a proper objection been made.
The case for prejudice is even weaker in connection with defendants ineffective assistance claim than for his other claims concerning the jailhouse admissions. First, only one admission is involved, an admission made when he was booked into jail for the present offense only. Thus, defendant cannot claim that his counsels alleged ineffectiveness resulted in the jury hearing that he had been jailed multiple times for unspecified other offenses. Further, the only fact shown by defendants September 4, 2000 statement, that he was still an LMG member on that date, did not depend on the booking evidence. As noted earlier, that fact was also supported by an overwhelming amount of other evidence, including multiple admissions of gang membership on earlier dates and an extensive display of gang tattoos on defendants person. Defendants participation in the gang-motivated attack on September 4, 2000, found to be true by the jury beyond a reasonable doubt, also demonstrates his gang membership on that date.
In view of the overwhelming, unrefuted evidence of defendants gang membership, and of his conviction for the underlying felonies, there is no reasonable probability that the exclusion of defendants September 4 booking admission would have resulted in a more favorable outcome for the defendant. We therefore reject defendants claim that his counsels failure to raise a Miranda objection constitutes ineffective assistance.
Sufficiency of the Evidence Supporting the Gang Conviction and Enhancement
Defendant contends the evidence was insufficient to sustain his conviction for participating in a criminal street gang (§ 186.22, subd. (a)), or to support the enhancement for commission of a felony for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)).
Regarding the criminal street gang charge, defendant maintains there was insufficient proof that he: (1) "knew that [the LMGs] members engage in or have engaged in a pattern of criminal gang activity;" or (2) "willfully promoted, furthered or assisted felonious criminal conduct by other members of that gang." We disagree.
At the time of the offense charged in this case, subdivision (e) of section 186.22 defined "pattern of criminal gang activity" to include, in relevant part, "the commission of, attempted commission of . . . or conviction of two or more" of 23 enumerated offenses. Offenses counting as part of a "pattern" of criminal gang activity under section 186.22 are commonly referred to in the case law as "predicate" offenses. (See, e.g., Gardeley, supra, 14 Cal.4th at p. 610.) Assaults involving the infliction of great bodily injury (§ 245) and auto burglaries (& sect; 459) qualify as predicate offenses under subdivision (e). (§ 186.22, subds. (e)(1), (e)(11).) Thus, to prove the defendants knowledge of the LMGs pattern of criminal activity, the prosecution was required to prove that the LMG gang or gang members committed at least one other enumerated offense besides the charged offense of assault with force likely to produce great bodily injury, and that defendant knew of the other predicate offense. (See Gardeley, supra, at p. 625 [charged offense can be considered one of the predicate offenses].) To satisfy the willful promotion prong, the prosecution had to prove that defendant participated in at least one felony with other gang members.
Our task is to determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal. Rptr. 431, 606 P.2d 738.) Lopezs testimony, combined with the evidence of defendants participation in the attack on Bustamante, more than satisfies this test.
Deputy Lopez testified to the following relevant facts: The LMG gang had about 50 members. They congregate in the area near where the assault took place, often gathering at 609 Hurlingame. The LMGs primary activities included assaults, burglaries, thefts, and drug sales. The gang members burglarized cars in order to trade the stolen items for drugs they could then sell for cash. Gang members committed assaults in the neighborhood to protect their turf, establish fear, and gain respect within the gang. One member, Octavio Ponce, was convicted of auto burglary in 2000. Defendant admitted membership in the LMG to police officers on numerous occasions going back several years and sported several LMG tattoos. Only active LMG members are likely to claim membership; non-members would put themselves in danger by doing so. Everybody in the gang knows what goes on within the gang. Gang members talk to each other so that everybody knows what is going on and is kept current.
In sum, Lopezs testimony showed that defendant was a long-time, active member of a relatively small group whose primary activity was engaging in crimes, and whose members regularly congregate together and talk to each other about their activities. A rational trier of fact could have inferred from this evidence that defendant knew of the Ponce auto burglary conviction, and knew of the pattern of criminal activities in which the gang engaged. Defendants knowledge of the Bustamante assault is established by the evidence that he participated in it. Thus, the evidence supports the jurys implicit finding that defendant had knowledge of the two predicate offenses used to establish the gangs "pattern" of criminal activity for purposes of section 186.22, subd. (e).
Defendant also argues that Deputy Lopezs description of the gangs criminal activities (assaults, burglaries, and drug sales and possession) was so generic that there was no proof the LMG qualified as a "criminal street gang" under section 186.22, subdivision (f). However, Lopez testified that auto burglary was one of the gangs typical crimes. Subdivision (e)(11) specifies that "burglary, as defined in Section 459" is one of the predicate crimes that, if committed at least twice by gang members, constitutes a pattern of criminal activity for purposes of section 186.22, subdivision (a). Burglary under section 459 includes auto burglary. Thus, Lopezs testimony was sufficient to establish that the LMG engaged in criminal street gang activities.
Section 186.22, subdivision (f) defines "criminal street gang" to mean "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 [subdivision (e)]."
The other contested element of subdivision (a), willful promotion of felonious criminal conduct by other members of the gang, was satisfied by evidence that defendant was part of the group that attacked Bustamante, and that the only motivation for the crime was gang-related. This evidence is also sufficient to sustain the jurys finding that defendant committed the offense "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." (§ 186.22, subd. (b)(1).) Due to the strength of the evidence that the attack was motivated by concerns unique to LMG members, the prosecution was not required to identify the other participants by name or prove their gang membership in order to show that defendant was assisting in "felonious criminal conduct by members of [the LMG]." ( § 186.22, subd. (a).)
Finally, defendant challenges the sufficiency of the evidence on the ground that a key element of the prosecutions case, Lopezs testimony that "everybody in the gang knows what goes on within the gang," was improperly admitted. For this, he relies on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew).
The defendant in Killebrew had been convicted of conspiring to possess a handgun that police found near the location where defendant and several alleged gang cohorts of his were arrested. (Killebrew, supra, 103 Cal.App.4th at pp. 647-648.) No percipient witness could testify that defendant knew the gun was present or intended to possess it. To establish these elements, the prosecution offered the testimony of a gang expert. (Id. at p. 658.) Through the use of hypothetical questions, the expert opined that each of the gang members involved knew that a gun was present and intended to jointly possess it for their mutual protection. (Ibid .)
The Court of Appeal reversed the judgment. The court found that the gang expert could offer opinions about gang behavior in general, but should not have been allowed to testify about a specific defendants subjective knowledge or intent. (Killebrew, supra , 103 Cal.App.4th at pp. 657-658; see also, People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) According to the Killebrew court, such testimony reflected no more than the experts personal belief about the defendants guilt. (Killebrew, at p. 658.) It did not assist the trier of fact in understanding a matter beyond their personal experience, but drew conclusions on issues reserved for the jury. (Ibid.) Because no other evidence supported the prosecutions conspiracy theory, the judgment could not stand. (Id. at p. 659.)
The opinion testimony that defendant objects to in this case arose during the following exchange:
"Q. Do you have an opinion about the defendants knowledge of the gang activity taking place by his other gang members?
"A. Yes.
"Q. Whats your opinion in that regard?
"A. Everybody in the gang knows what goes on within the gang.
"Q. How do they know whats going on within the gang?
"A. They tell each other.
"Q. Why do they tell each other?
"A. So that way everybody knows whats going on, everybodys kept current."
Killebrew does not assist defendant in this case. First, trial counsel interposed no objection that Deputy Lopezs testimony exceeded the permissible scope of expert opinion either when the above exchange took place, or at any other time. Accordingly, we find that the issue was waived. Second, although one of the prosecutors questions asked the expert to opine about defendants knowledge of gang activities, no testimony on that issue in fact came in. Deputy Lopez responded to that question and to proper follow-up questions by testifying only to his opinions about gang behavior in general. As recognized in Killebrew, such testimony is entirely permissible. In this case, unlike Killebrew, the jury was permitted to draw its own inferences about the defendants subjective knowledge of gang activities.
We also reject defendants claim that his counsel was ineffective in failing to object to Lopezs testimony. For the reasons stated, the objection would not have been well taken even under the principles stated in Killebrew. In any event, Killebrew was not decided until more than a year after the trial in this case, and trial counsel was under no duty to anticipate future developments in the law. (See, e.g., Sherrill v. Hargett (10th Cir. 1999) 184 F.3d 1172, 1175-1176 [trial counsel not ineffective for failing to anticipate arguments that arise after defendants trial].)
There is sufficient admissible evidence to support both defendants conviction for participation in a criminal street gang and the enhancement for committing a felony in furtherance of the gangs criminal activity.
DISPOSITION
We concur: Marchiano, P.J., Swager, J.