Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. 06WF3312 of Orange County, Patrick Donahue, Judge.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Defendant Jose Luis Bermudez Ramirez appeals from the judgment of conviction entered after a jury found him guilty of graffiti, street terrorism, and two counts of second degree robbery. As to the robbery counts, the jury found true the gang enhancement under Penal Code section 186.22, subdivision (b)(1) and also the enhancement defendant had vicariously used a firearm for gang-related purposes within the meaning of section 12022.53, subdivisions (b) and (e)(1). (All further statutory references are to the Penal Code unless otherwise specified.) As to the graffiti offense, the jury found true the gang enhancement under section 186.22, subdivision (d).
We affirm the judgment, with the one exception that we reverse defendant’s conviction for street terrorism for lack of substantial evidence. We summarize our holdings with regard to each of defendant’s contentions of error as follows:
1. Substantial evidence supported the jury’s finding that the “Too Fucking Sick” (2FS) gang constituted a criminal street gang as defined in section 186.22, subdivision (f), because sufficient evidence showed the commission of murder and making criminal threats constituted one of 2FS’s primary activities. Substantial evidence also supported the jury’s finding that the gang enhancement under section 186.22, subdivision (b)(1), applied to the robbery offenses because substantial evidence showed defendant committed the offenses for the benefit of, at the direction of, or in association with 2FS and with the specific intent of promoting, furthering or assisting 2FS’s criminal conduct. Under the given jury instructions, however, substantial evidence did not support defendant’s conviction for street terrorism within the meaning of section 186.22, subdivision (a).
2. Even assuming the admission of various police officers’ testimony regarding the statements made to them by one of defendant’s co-perpetrators was in error, the admission of such evidence was harmless because it was cumulative to other undisputed evidence presented at trial. The prosecution’s gang expert also testified about certain statements made by the defendant’s co-conspirator; those statements, however, were not offered for their truth, but instead as one source relied upon by the expert in rendering his opinion. The jury was given a limiting instruction to that effect. Thus, the admission of such testimony neither constituted the admission of inadmissible hearsay nor violated defendant’s right to confrontation under the state and federal Constitutions.
3. Finally, the admission of the gang expert’s testimony did not lower the prosecution’s burden of proof.
FACTS
A.
The Robbery and Graffiti Offenses
At 11:00 p.m., on December 9, 2006, 18-year-old Christopher Vossler and his friends Ryan Miller, Michael Ristrom, and Vince Rappazzini were walking to Ristrom’s van to go home after attending a party in Garden Grove when a car containing defendant, Heruvey Madera, and Roberto Ramos Ramirez drove by the group and made a U-turn. Ramirez and Madera, who was carrying a gun, got out of the car and started walking toward Vossler; defendant remained seated in the driver’s seat of the car. Ristrom and Rappazzini were able to run away.
Madera yelled, “nobody move.” He walked up to Vossler and held the gun to Vossler’s forehead; Vossler could feel the gun touching his head. Madera asked Vossler “where you from?” Vossler understood Madera to be asking whether he was a gang member and told Madera he was not. Madera continued to ask Vossler where he was from and Vossler kept responding that he was not a gang member. Madera told Vossler to empty all the things out of his pockets and put them on the ground. Vossler complied, placing his wallet and cell phone on the ground.
Miller emptied his pockets and dropped his cell phone, his keys, Ristrom’s keys, and $6 in his wallet to the ground. Madera walked over to Miller, held the gun to his head and asked him if he banged and what city he was from. Ryan said he did not bang and that he was from Garden Grove. Madera told Miller to take everything out of his pockets; Miller told him that everything was already on the ground.
After Vossler emptied his pockets, Madera again asked where he was from and if he does anything. Madera then pointed the gun in the air and pulled the trigger three times and said “the next one is a bullet” and “give me all your stuff or I’m going to put it in your head.”
Meanwhile, Ramirez tagged the nearby walls with black spray paint. Ramirez then walked up to Vossler and spray painted his shirt.
Madera said to Vossler something to the effect that if he called the police he would “fucking kill [him].” Madera and Ramirez walked back to the car. Vossler asked if he could have his stuff back. As he was getting into the car, Madera said, “No, you guys just got jacked.”
B.
Ramirez Is Apprehended by Law Enforcement and a Gun and Spray Paint Can Are Found Nearby; He Admits He Spray Painted “TFS” on Walls and That TFS Stands for 2FS.
Officer Robert Carter of the Orange County Sheriff’s Department responded to a complaint that two males were tagging a wall. He saw two males walking away from a wall that appeared to have been spray painted with “several tags” including “TFS.” Carter drove up, shined his spotlight on both men, and ordered them to stop. One fled and the other, later identified as Ramirez, surrendered. As he got out of his vehicle, Carter heard something drop from one of them which made a clanking noise. Carter searched the area and recovered a handgun. He also found a spray can in an adjacent yard. Ramirez had black paint on his fingers and admitted to the graffiti.
Other sites of fresh graffiti done in black spray paint were discovered by police officers. Ramirez admitted to Officer Dale Miller of the Anaheim Police Department that he had been with the gang known as 2FS or TFS. Ramirez denied belonging to a street gang to Detective Timothy Kovacs of the Garden Grove Police Department, but stated his moniker was “Big Boy.” He told Kovacs he knew 2FS stood for the Too Fucking Sick gang, he knew 2FS members, and that a friend of his had been convicted of murder for that gang.
C.
Almost Three Weeks Later, Defendant, Madera, and a Third Unidentified Individual Flee from Police.
During the early morning of December 28, 2006, Officer Douglas Pluard of the Garden Grove Police Department initiated a traffic stop of a purple Chrysler PT Cruiser. The vehicle did not immediately pull over and when it did, three individuals, including defendant and Madera, ran into a condominium complex. Defendant had been in the driver’s seat. Pluard ran after them and called for back up to assist him. Defendant was taken into custody after he was found in the backyard of a home. Madera was also taken into custody after he was found in a backyard shed.
D.
Officer Peter Vi Investigates Crimes Committed by Defendant and Interviews Defendant.
Officer Peter Vi is a 20-year veteran of the Garden Grove Police Department who has worked in the gang suppression unit for 15 years. He took over the investigation of the December 9, 2006, robberies and “string of graffiti” almost immediately.
Vi spoke with defendant and saw that defendant had a 2FS tattoo on the left side of his head; defendant told Vi he got his tattoo one and a half to two years earlier. Defendant admitted his gang membership and told Vi he had been walked into the gang because his cousin, Luis Gutierrez, who had the moniker of “Poncho, ” brought him into the gang. Defendant told Vi that Gutierrez had killed a member of the rival 18th Street gang. Defendant told Vi about 2FS, explaining it started as a “party crew” by someone in custody for murder and that it evolved into a criminal street gang in 1998. He said 2FS had more than 15 members and he described 2FS’s claimed territory. He told Vi that 18th Street and Crow Village were rivals of 2FS and 2FS was on friendly terms with Hard Times. Defendant admitted knowing Madera and Ramirez and told Vi that Madera’s moniker was “Casper” or “Dopey, ” and Ramirez’s moniker was “Big Boy.” He said his own moniker is “Silent” because he did not talk much.
Defendant told Vi that on the night of the charged offenses, he picked up Madera and Ramirez at 6:30 p.m., and drove them to 18th Street claimed territory “to put up their graffiti.” When he picked them up, Ramirez showed defendant he had a gun. He periodically stopped the car and either Madera or Ramirez got out and committed various acts of graffiti in 18th Street territory. They drove to admitted 18th Street member Gino Armendares’s residence and put up graffiti. Defendant told Vi they were looking for 18th Street gang members that night. Vi asked defendant, “I mean, are you guys hot that night? And you know, I really want a freaking piece of ass of 18th Street or what?” Defendant responded, “We were just, well, you know.”
Defendant told Vi that at one point, Madera told defendant to stop the car. Madera and Ramirez got out the car. Defendant saw Madera contact a tall male Caucasion and he heard Madera tell him “to empty his pockets or he’s going to get his ass kicked.” Vi commented to defendant that when Madera told him to stop the car, “he’s not going to ask for directions.” Defendant responded, “yeah.” After Madera and Ramirez got back into the car, defendant drove them to a restaurant where Madera used the money from the robbery to buy defendant and Ramirez dinner.
E.
Vi’s Gang Expert Testimony
Vi has testified in Orange County Superior Court 76 times as a gang expert. He educates new officers, and teaches courses on how to identify, document, and investigate gangs. He reviews all gang-related cases in Garden Grove and field interview cards. He has investigated over 100 cases involving members. He has talked to over 1, 000 gang members. He has had over 580 hours of formalized training. “Most of [his] experience with gangs comes from speaking with gang members, ” investigating crimes, and training. Vi has investigated two other cases involving 2FS. He has spoken to four gang members and investigated several crimes allegedly committed by 2FS members. He has spoken with other Garden Grove police officers about 2FS.
He testified 2FS, also known as TFS, is a traditional Hispanic criminal street gang that claims a particular territory within Garden Grove. A traditional Hispanic street gang is very territorial and marks its area to let others know it is theirs and not to trespass. It is a sign of disrespect to travel into a rival gang’s neighborhood to put up one’s own graffiti. Respect is very important and such a gang will use violence and intimidation to gain it. He testified that 2FS’s primary activities include murder, as they murdered a rival 18th Street gang member in 1994, and Gutierrez of 2FS shot and killed a rival 18th Street gang member in 2001. Vi also testified “2FS gang members have committed criminal threats or terrorist threats in 2003 or [200]4... [and] committed possession of loaded firearms, again involving 2FS.”
Vi reviewed four field interview cards regarding defendant and four California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.) (STEP) notices. The first field interview card and STEP notice were issued to defendant in March 21, 2003. Another field interview card and STEP notice were issued to defendant in November 2005. Each time defendant was contacted, he was advised that by participating in a gang he would face a sentencing enhancement for any crime he might commit.
The filed interview cards were marked at trial but were not admitted into evidence.
Kovacs prepared a police report following the events of December 9, 2006. Vi reviewed that report and spoke with Kovacs about it and discussed Kovacs’ interview of Ramirez. Vi learned that Ramirez told Kovacs that during the robberies, he heard Madera say, “Fuck 18th Street this is 2FS.” Ramirez also told Kovacs that the purpose of the trip into 18th Street territory was to look for 18th Street gang members, and specifically an individual by the name of Gino, “to either hurt or kill.” Ramirez also told Kovacs “that the purpose [for] the gang graffiti was to reclaim the neighborhood.”
Vi testified that in his expert opinion, defendant was a member of 2FS based on his 2FS tattoo, his past police contact when he admitted 2FS membership, Vi’s interview with defendant, and the circumstances surrounding the instant offenses. He opined that Madera also was an active criminal street gang participant based on the 2FS tattoo on his head, his contacts with police officers in which he was acting as a member of 2FS, his admission to officers about his gang affiliation, and that he had been jumped into the gang. In November 2005, Madera pleaded guilty to committing two counts of second degree vehicle burglary in violation of sections 459 and 460, subdivision (b). Based on Ramirez’s statement, police reports and information from other police officers, Vi concluded Ramirez was an active 2FS criminal street gang member on December 9, 2006.
Vi asked defendant whether his 2FS tattoo on his head put him at greater risk for injury in light of how close he lived to territory claimed by 18th Street. Vi testified defendant told him “he had to stay indoors a lot of time to avoid being confronted by rival gangs. If he’s out in the street he has to stay with his girlfriend or another child to prevent any attacks by rival gangs.” He said he was aware that just by having 2FS on his head he could become a victim of gang crime.
Based on his investigation of numerous robberies involving gang members and gang members serving as getaway drivers, Vi stated that in the gang subculture: “[T]he driver pretty much is responsible to get the individual there to the scene of the crime, wait for the activity to be done and get everyone away safely without getting stopped by the police or involved in any traffic altercation or while [they are] leaving the scene.” He said it is important for the gang members to trust the getaway driver because he or she is their “ticket to freedom to get out of the area safely.” Also, “in gang subculture” it is important for gang members to communicate with each other so that they know what is going on so they know how to react to things. He also explained that a “hit up” is when gang members walk up to a group of individuals who they do not know and ask where the other group is from, who they claim, or what neighborhood they are from. If the challenged group identifies a gang that is an ally, “everyone will do their own thing, ” but if a rival gang is identified, or no gang is identified at all, an argument or fight could ensue.
In response to a hypothetical question which mirrored the facts of the case, Vi testified that in his expert opinion, the commission of the instant offenses would benefit the perpetrating gang members by enhancing their status within the gang and would also benefit the reputation of the gang. Vi also testified it would show the other gangs in the area that 2FS is a violent gang as “[t]hey are willing to go into a rival territory to confront people and mark the graffiti on the wall; it’s shown they are tough out there, they will not be afraid of any gangs; other weaker gangs will be in fear of 2FS because they know that this gang ha[s] the capacity to do that without any reservations of not marking territory.”
BACKGROUND
In an amended information, defendant was charged with (1) two counts of second degree robbery in violation of sections 211 and 212.5, subdivision (c) (counts 5 and 6); (2)); (2) one count of dissuading a witness from reporting a crime in violation of section 136.1, subdivision (b)(1) (count 7); (3) gang-related graffiti in violation of sections 186.22, subdivision (d), and 594, subdivision (a) (count 8); and (4) street terrorism in violation of section 186.22, subdivision (a) (count 9). As to counts 5, 6, and 7, the information alleged: (1) defendant committed such offenses for the benefit of, at the direction of, and in association with “2 Fucking Sick, ” a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by members of that gang within the meaning of section 186.22, subdivision (b)(1); and (2) during the commission of those offenses committed for the benefit of 2FS, another principal used a firearm. As to count 8, the information also alleged the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang (2FS) and with the specific intent to promote, further, and assist in criminal conduct by members of that gang, within the meaning of section 186.22, subdivision (d).
The trial court granted the prosecution’s motion to dismiss count 7 and the enhancement allegations pertaining to that offense. The jury found defendant guilty as charged and found all enhancement allegations to be true. The trial court imposed a total prison term of 17 years and four months. Defendant appealed.
DISCUSSION
I
Defendant’s Substantial Evidence Challenges
Defendant argues the gang enhancements applied to his convictions for robbery and graffiti are not supported by substantial evidence because insufficient evidence showed one of 2FS’s primary activities constituted one or more of the statutorily enumerated offenses necessary for finding 2FS to be a criminal street gang. As to the gang enhancements applied to the robbery offenses only, defendant also contends insufficient evidence showed the robberies were committed to promote or facilitate gang objectives. Defendant also contends his conviction for the substantive offense of street terrorism should be reversed because insufficient evidence showed defendant knew 2FS engaged in a pattern of criminal gang activity. We address each of defendant’s contentions in turn.
A.
Standard of Review
“‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if “‘upon no hypothesis whatever is there sufficient substantial evidence to support’” the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B.
Substantial Evidence Showed One of 2FS’s Primary Activities Constituted One or More of the Offenses Enumerated in Section 186.22, Subdivisions (e) and (f).
Having found all alleged gang enhancements true under section 186.22, subdivision (b)(1) and (d), as applied to the robbery offenses and the graffiti offense, respectively, the jury necessarily found 2FS constituted a criminal street gang.
Section 186.22, subdivision (b)(1), provides in relevant part: “[A]ny person who is convicted of a felony 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows....” (Italics added.) As to the graffiti offense, the jury found true the alleged gang enhancement pursuant to section 186.22, subdivision (d), which provides in part: “Any person who is convicted of a public offense punishable as a felony or misdemeanor, which is 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, shall be punished by imprisonment....” (Italics added.)
Section 186.22, subdivision (f), defines “‘criminal street gang’” as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” Defendant’s substantial evidence challenge solely focuses on the aspect of the criminal street gang’s definition requiring the prosecution to prove that one of the alleged criminal street gang’s primary activities constitute the commission of one or more of the statutorily enumerated offenses.
Here, the jury was instructed to determine whether one of 2FS’s primary activities include murder, criminal threats, and/or illegal weapons possession. Murder is included in subpart (3) of section 186.22, subdivision (e), and the offense of criminal threats resulting in death or great bodily injury as defined in section 422 is listed in that subdivision in subpart (24) of section 186.22, subdivision (e). Defendant does not contend the jury’s instruction in this regard was in error. Defendant contends the evidence was insufficient to establish that one of 2FS’s primary activities constituted one or more of those specified offenses.
The California Supreme Court explained in People v. Sengpadychith (2001) 26 Cal.4th 316, 324, that “[s]ufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in [People v.] Gardeley [(1996)] 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.] The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on ‘his personal investigations of hundreds of crimes committed by gang members, ’ together with information from colleagues in his own police department and other law enforcement agencies. [Citation.]”
The Supreme Court in People v. Sengpadychith, supra, 26 Cal.4th at page 323, further stated: “Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group’s primary activities” but any such evidence alone is “[n]ot necessarily” sufficient to establish the primary activities criterion. (Italics added.)
At trial, the prosecution presented evidence that on December 9, 2006, Madera, a 2FS gang member, pointed a gun first at Vossler’s head and then at Miller’s head, and threatened to shoot if they did not comply with his demand to empty their pockets. Madera also threatened he would “fucking kill” Vossler if he contacted the police.
Vi testified that defendant admitted his 2FS gang membership to him and told him that 2FS gang member Luis Gutierrez murdered a member of 2FS’s rival, 18th Street, an incident which Vi testified occurred in 2001. Vi also testified that for the past 15 years he has worked in the gang unit of the Garden Grove Police Department and investigates gang-related cases in the city. He testified 2FS had previously committed another murder in 1994. He also testified “2FS gang members have committed criminal threats or terrorist threats in 2003 or [200]4.”
In addition to the foregoing evidence, Vi testified that in his expert opinion based on his past experience and investigation, one of 2FS’s primary activities constituted murder and making criminal threats. (People v. Vy (2004) 122 Cal.App.4th 1209, 1226 [“Furthermore, proof of the ‘primary activities’ element was satisfied through testimony by a police gang expert.... He gave significant expert testimony that [the gang] was engaged in criminal actions that constituted predicate crimes under the gang statute”].)
We conclude the above cited evidence constituted sufficient evidence to support the jury’s finding 2FS constituted a criminal street gang within the meaning of section 186.22, subdivision (f). We find no error.
C.
Substantial Evidence Showed the Robbery Offenses Were Committed in Furtherance of Gang Objectives.
Defendant argues insufficient evidence supported the finding the robbery offenses “were committed in furtherance of gang objectives” as required by the gang enhancement the jury found true as to these offenses under section 186.22, subdivision (b)(1). He contends insufficient evidence showed he committed the robbery offenses “for the benefit of, at the direction of, or in association with” 2FS “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” For the reasons discussed, post, we disagree.
As discussed ante, defendant does not challenge the jury’s finding, which is implicit in its finding the truth of the gang enhancement allegation under section 186.22, subdivision (b)(1), that defendant was an active participant in 2FS at the time of the charged offenses. Indeed, more than substantial evidence, which included defendant’s admissions to Vi and the 2FS tattoo imprinted on his head, supported such a finding. In addition, substantial evidence, including but not limited to Vi’s expert opinion testimony on the subject, supported the finding Madera and Ramirez were members of 2FS at the time of the charged offenses.
Substantial evidence also showed that among his admissions to Vi, defendant told Vi that on December 9, 2006, he picked up Madera and Ramirez to go out and commit various acts of graffiti in the claimed territory of 2FS’s rival, 18th Street. Vi testified that 2FS is a traditional Hispanic criminal street gang. He stated that Hispanic street gangs tend to be very territorial and covet respect. He further testified it is a sign of disrespect to travel into a rival gang’s neighborhood “to put up your own graffiti.” Vi stated not only would such conduct by the members of such a gang show disrespect for a rival gang, it would also curry respect and a reputation for their own gang by showing that “they are tough out there” and are not afraid of other gangs.
Vi testified that defendant admitted to him that he was aware Ramirez had a gun with him when he picked him up. He also told Vi that he, Madera, and Ramirez were looking for 18th Street gang members that night. After Madera told him to stop the car, and the robberies of Vossler and Miller commenced, Madera repeatedly asked Vossler and Miller where they were from and whether they banged. During the robberies, Ramirez was tagging nearby walls and then spray painted Vossler’s shirt. Substantial evidence therefore supported the finding that defendant, Madera, and Ramirez were out to wreak some havoc in 18th Street’s claimed territory. Vi’s expert testimony in response to the prosecution’s hypothetical question explained that the purpose for such activity would be to increase their status within 2FS and to enhance the reputation of 2FS in general.
The prosecution asked Vi the following hypothetical question: “I want you to assume this certain set of facts: Assume three individuals all active participants of 2FS, two of those individuals have tattoos on their head depicting 2FS; those individuals drive into rival gang territory, they drive into 18th Street territory; while they’re there in this 18th Street territory, each person is aware that one of the individuals is armed; while in 18th Street territory several or more than one individual get out and tattoo 2FS throughout the 18th Street neighborhood; at some point in time they come across a group of 3 or 4 individuals where two individuals get out; one individual who is tattooed on the head aims a gun at two individuals, demands their money, then threatens to kill them if they call the police; the other individual while this robbery is occurring spray paints gang graffiti on the wall; that individual then walks over to one of the victims and spray paints on the front of his shirt. [¶] Do you have an opinion as to whether that crime was committed either to benefit 2FS or was committed in association with 2FS?”
Vi testified that in his opinion: “For the association aspect of that you have two 2FS members who have tattoos on their body with a third there in association with each other, they were in the car together, they went to rival gang territory together -that’s association itself. [¶] As for the benefit, the direction of, that gang you have these three individuals went to a rival gang with a gun to graffiti and commit robbery, their status will be enhanced among fellow gang members of their own gang because they commit this violent gang. They also enhance the reputation of their own gang by committing this crime in rival gang territory. It’s a good thing for them personally to elevate their status and enhance the reputation of the gang by committing this crime itself.”
Vi’s expert testimony, combined with the evidence of circumstances of the charged offenses as described by the two victims of the robbery offenses and defendant himself in his admissions to Vi, constituted substantial evidence defendant committed the robberies “for the benefit of, at the direction of, or in association with” 2FS, “with the specific intent to promote, further, or assist” in 2FS’s criminal conduct within the meaning of section 186.22, subdivision (b)(1).
Defendant argues Vi’s expert testimony should not be considered in determining whether substantial evidence supported the gang-related purpose of the robberies because he improperly informed the jury how the case should be resolved. But expert testimony has been offered to establish the existence, composition, culture, habits, and activities of street gangs; the defendant’s membership in a gang; gang rivalries; the “motivation for a particular crime, generally retaliation or intimidation;” and “whether and how a crime was committed to benefit or promote a gang.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657 (Killebrew).) In Killebrew, the appellate court held an expert on street gangs may provide the jury information from which it may infer the perpetrator’s motive or intent, but such an expert may not testify as to a particular gang member’s subjective knowledge or specific intent. (Id. at p. 658; see People v. Ramon (2009) 175 Cal.App.4th 843, 851 [gang expert’s opinion improper because it simply informed the jury of how it felt the case should be resolved].)
Vi testified as to the existence, composition, culture, habits, and activities of street gangs in general and of 2FS in particular. (Killebrew, supra, 103 Cal.App.4th at pp. 656-657.) He testified about defendant’s, Madera’s, and Ramirez’s membership in 2FS, gang rivalries, motivations for the charged offenses, and how such offenses might benefit or promote 2FS. This testimony fell within the proper scope of proper gang expert testimony.
Vi was also asked a series of questions based on a hypothetical mirroring of the facts of this case. Such questions are permissible. (People v. Gardeley, supra, 14 Cal.4th at pp. 618-619.) Vi testified in response to the hypothetical question that the commission of the subject offenses under the circumstances would enhance their status among members of the gang and enhance the reputation of the gang. He did not testify specifically as to defendant’s subjective knowledge or specific intent in participating in the charged offenses. Rather, his testimony addressed the motive of gang members in general. Thus, this evidence was competent evidence properly considered by the jury in determining whether the robberies were committed for the benefit of 2FS.
D.
Insufficient Evidence Showed at the Time of the Commission of the Charged Offenses, Defendant Actively Participated in 2FS With Knowledge Its Members Engage in or Have Engaged in a Pattern of Criminal Gang Activity.
To prove defendant committed the offense of street terrorism, the prosecution was required to prove, inter alia, he “actively participate[d] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (a).) Defendant does not challenge that substantial evidence supported his active participation in 2FS. Defendant argues insufficient evidence showed he had knowledge that 2FS’s members engage in or have engaged in a pattern of criminal gang activity.
Section 186.22, subdivision (e), defines the term “pattern of criminal activity” as meaning “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.”
Here, the jury was instructed that in the instant case, “a pattern of criminal activity... means: The commission of or conviction of... any combination of two or more of the following crimes, or two or more occurrences[:] 2nd degree burglary, robbery, grand theft person, or gang related graffiti.” Defendant does not challenge this jury’s instruction. He argues insufficient evidence showed that at the time of the charged offenses occurred, he was aware that 2FS members had committed two or more of the offenses identified in the instruction.
Citing People v. Loeun (1997) 17 Cal.4th 1 (Loeun), the Attorney General argues the two robbery offenses at bar are sufficient to prove defendant’s knowledge of 2FS’s pattern of criminal activity. In Loeun, the California Supreme Court stated, “[t]he pertinent statutory language does not require proof, however, that the two or more predicate offenses must have been committed both on separate occasions and by different persons. Under the statute, the pattern of criminal gang activity can be established by proof of ‘two or more’ predicate offenses committed ‘on separate occasions, or by two or more persons.’ [Citation.] The Legislature’s use of the disjunctive ‘or’ in the language just quoted indicates an intent to designate alternative ways of satisfying the statutory requirements. [Citations.] This language allows the prosecution the choice of proving the requisite ‘pattern of criminal gang activity’ by evidence of ‘two or more’ predicate offenses committed ‘on separate occasions’ or by evidence of such offenses committed ‘by two or more persons’ on the same occasion.” (Id. at pp. 9-10, fn. omitted.)
The Supreme Court further explained in a footnote: “Of course, proof of the ‘two or more’ predicate offenses as specified by former subdivision (e) of section 186.22 need not consist of evidence that different Penal Code provisions were violated. Rather, the commission of two acts violating the same penal provision (for example, two robberies) would satisfy the statutory requirement of ‘two or more’ predicate offenses so long as the robberies satisfied the further statutory requirement of having been committed ‘on separate occasions, or by two or more persons.’ [Citation.] Otherwise, a gang that limited its criminal behavior to one type of criminal activity, such as committing robberies, ‘would not be subject to the [STEP Act] no matter how many times its members committed that crime.’ [Citation.]” (Loeun, supra, 17 Cal.4th at p. 10, fn. 4.)
The Supreme Court thus concluded, “[t]herefore, when the prosecution chooses to establish the requisite ‘pattern’ by evidence of ‘two or more’ predicate offenses committed on a single occasion by ‘two or more persons, ’ it can, as here, rely on evidence of the defendant’s commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member.” (Loeun, supra, 17 Cal.4th at p. 10.)
Defendant argues that unlike the gang enhancements contained in section 186.22, subdivision (b)(1), which was at issue in Loeun, supra, 17 Cal.4th at page 10, the offense of street terrorism at section 186.22, subdivision (a), requires proof of defendant’s “knowledge that its members engage in or have engaged in a pattern of criminal gang activity.” (Italics added.) Therefore, to use the fact of the commission of the charged robbery offenses as the two predicate offenses to prove a pattern of criminal gang activity would render the word “knowledge” in the statute superfluous.
The Attorney General cites Loeun, supra, 17 Cal.4th at page 10, in which the Supreme Court rejected the defendant’s argument that under the gang enhancement under section 186.22, subdivision (b)(1), at least one of the predicate offenses must be a prior offense because otherwise “a defendant could not ‘know’ that commission of the current offense would provide the second of the ‘two or more’ predicate offenses necessary to establish a ‘pattern of gang activity.’” (Loeun, supra, 17 Cal.4th at p. 10.) But as discussed ante, Loeun did not address the proper interpretation of the statutory language of section 186.22, subdivision (a), and its unique knowledge requirement.
“In construing the relevant provisions of the STEP Act, as with any statute, we strive to ascertain and effectuate the Legislature’s intent.” (Loeun, supra, 17 Cal.4th at p. 8.) The plain language of section 186.22, subdivision (a), requires a conviction for street terrorism only if defendant knew of 2FS’s past or present pattern of criminal gang activity which seems to at least preclude use of two charged and contemporaneously occurring offenses as the requisite predicate offenses to establish the pattern of criminal gang activity.
Here, even if section 186.22, subdivision (a), would permit one of the present offenses to count as a predicate offense, insufficient evidence showed defendant was aware of even a single qualifying prior offense. The jury was instructed that it may consider only second degree burglary, robbery, grand theft of a person, or gang related graffiti as predicate offenses to establish a pattern of criminal gang activity. Although evidence was admitted that Madera committed two counts of second degree burglary in 2003, no evidence was presented that defendant had knowledge of those particular offenses at the time he committed the instant offenses.
Evidence was admitted showing defendant was aware his cousin, Gutierrez, a 2FS member, murdered a rival gang member in 2001; but homicide was not included in the universe of offenses the jury might consider in determining a pattern of criminal gang activity pursuant to its instruction.
Although evidence was presented that defendant admitted to Vi that he picked up Madera and Ramirez on December 9, 2006, for the purpose of committing graffiti, in order to be a qualifying offense under section 186.22, subdivision (e)(20), the subject graffiti must cause $400 in damage or more. (See § 594, subd. (b)(1).) No evidence whatsoever was presented as to the cost of damage caused by any 2FS member’s act of vandalism.
We therefore reverse defendant’s conviction for street terrorism under section 186.22, subdivision (a), for insufficient evidence.
II.
Even If The Admission of Ramirez’s Statements to Police Officers Offered for The Truth of the Matter Asserted therein Was in Error, Any Such Error Was Harmless; The Admission of Vi’s Testimony Regarding Ramirez’s Statements to Another Police Officer Did Not Violate the Hearsay Rule or Constitutional Rights to Confront Witnesses.
Defendant contends the trial court abused its discretion by permitting certain law enforcement officials involved in the investigation of the charged offenses to testify regarding statements made by Ramirez. Defendant argues such statements constituted inadmissible hearsay and their admission also violated the confrontation clauses of the state and federal Constitutions.
In the opening brief, defendant identifies the following statements by Ramirez he contends constituted erroneously admitted testimony: (1) Ramirez’s statements admitting his association with 2FS to officers Carter, Miller and Kovacs; (2) Ramirez’s statement to Miller that 2FS was a “street gang”; and (3) Ramirez’s statement to Kovacs that his friend Poncho had been convicted of committing a murder for 2FS. In addition, defendant contends the trial court erroneously permitted Vi to testify about Ramirez’s statements to Kovacs that on December 9, 2006, he, Madera and defendant traveled to 18th Street’s territory to look for a 18th Street gang member named Gino to hurt or kill him and that during the robberies, Ramirez heard Madera say “Fuck 18th Street. This is 2FS.”
Even if the testimony was improperly admitted, the police officers’ testimony regarding Ramirez’s statements directly to them admitting his association with 2FS, that 2FS was a street gang, and that Poncho had been convicted of committing a murder for 2FS was harmless because it was merely cumulative to other evidence presented at trial. Such evidence included (1) Vi’s expert opinion Ramirez was a member of 2FS based on police reports he had reviewed and information he had received from other police officers; (2) defendant’s admission that he, Ramirez and Madera set out on December 9, 2006 to put up 2FS graffiti in 2FS’s rival gang’s territory and to look for 18th Street gang members; (3) defendant’s admission to Vi that he had been walked into 2FS; (4) Vi’s expert testimony generally discussing Garden Grove gangs including 2FS (see People v. Killebrew, supra, 103 Cal.App.4th at pp. 656-657); and (5) defendant’s admission to Vi that his cousin, Luis Gutierrez, had murdered a 18th Street gang member.
We now turn to the trial court’s admission of Vi’s testimony regarding Ramirez’s statements to Kovacs. Vi testified that he had learned that Ramirez had told Kovacs that defendant, Ramirez, and Madera had traveled to 18th Street’s claimed territory on December 9, 2006, to look for a member of 18th Street named Gino to hurt or kill him, and that during the robberies, Ramirez heard Madera say “Fuck 18th Street. This is 2FS.” But the record shows neither of the statements was offered for the truth of the matter asserted therein. Instead, the statements were offered as one of the sources Vi considered in forming his expert opinion in the case.
Immediately after Vi testified about these statements, the trial court so instructed the jury, stating: “Okay. Those statements that were made from... Ramirez to Kovacs are not to be considered for the truth of the matter. The only reason that you can consider those is not that they are true but that they go towards the opinion that the officer will give as to whether this was a gang-related crime. You can only use it for that purpose.” As the statements were not offered for the truth of the matter asserted, their admission did not violate the hearsay rule.
Defendant contends Ramirez’s statements, made in the context of a custodial interrogation, constituted testimonial hearsay statements which was admitted “under the guise of expert opinion testimony” in violation of the confrontation clauses of the state and federal Constitutions. We disagree.
In all criminal prosecutions, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, “to be confronted with the witnesses against him....” (U.S. Const., 6th Amend.; Crawford v. Washington (2004) 541 U.S. 36, 42 (Crawford).) In Crawford, the United States Supreme Court held the confrontation clause prohibits admission of out-of-court statements that are testimonial in nature unless the declarant is unavailable and the accused has had a prior opportunity for cross-examination. The Supreme Court held a wife’s out-of-court statement to a law enforcement officer made during a custodial interrogation about a knife fight, in which both the husband and wife were suspects, could not be used against the husband in his trial for attempted murder. (Crawford, supra, 541 U.S. at pp. 38-39, 68-69.)
The Crawford court stated: “Where testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law-as does [Ohio v.] Roberts] (1980) 448 U.S. 56], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” (Crawford, supra, 541 U.S. at p. 68.) Although the court left “for another day” a comprehensive definition of “‘testimonial’” (ibid., fn. omitted), the court did provide these illustrations of statements that could be considered testimonial: (1) “‘ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, ’” and (2) “‘statements... made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” (Id. at pp. 51-52, second italics added.)
In People v. Thomas (2005) 130 Cal.App.4th 1202, 1210, the appellate court held: “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 expert’s opinion.” (See also People v. Sisneros (2009) 174 Cal.App.4th 142, 153-154; People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427.)
We agree. Crawford recognized 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.) Thus, Crawford would not render an expert’s testimony inadmissible if the bases for the expert’s opinions are not offered for the truth of the matter asserted.
Because Vi’s testimony regarding Ramirez’s statements to Kovacs was not offered to show the truth of Ramirez’s statements, but to show one of the bases for Vi’s expert opinion, the admission of his testimony did not constitute an evidentiary error or constitutional violation.
III
The Admission of Vi’s Expert Testimony Did Not Lower the Prosecution’s Burden of Proof.
Finally, defendant argues the admission of Vi’s expert testimony unconstitutionally relieved the prosecution of having to prove every element of the gang enhancements, and “especially the ‘primary activities’ and ‘gang-related objective’ elements” of those enhancements. As discussed in detail ante in section I of the Discussion, the primary activities and gang-related objective elements of the gang enhancement under section 186.22, subdivisions (b)(1) and (d), were supported by substantial evidence that included, but was not limited to Vi’s expert opinion. Hence, this was not a case as contended by defendant where “the Government took ‘a shortcut around its obligation’ to prove the ‘primary activities’ element of the offenses and enhancements through the use of ‘expert’ opinion testimony.”
Defendant’s argument extended to contend Vi’s expert testimony lowered the prosecution’s burden of proof in proving the street terrorism offense in violation of section 186.22. As discussed ante, we reverse the judgment as to that offense for lack of substantial evidence. We therefore do not address defendant’s argument as to that offense here.
Furthermore, the jury was expressly instructed with CALCRIM No. 1401 as to the gang enhancements under section 186.22, subdivisions (b)(1) and (d) that in order to prove the allegations, the prosecution was required to prove defendant committed the substantive crime for the benefit or, at the direction of, or in association with a criminal street gang and “intended to assist, further, or promote criminal conduct by gang members.” The instruction further stated: “The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find the allegation has not been proved.”
As to the graffiti offense, the jury was instructed with CALCRIM No. 2900 which was modified to state: “And for Count 8 graffiti gang[-]related vandalism[, ] the People must also prove that the vandalism was done in associating with, or to benefit or a the direction of a criminal street gang with the specific intent to promote or further criminal gang activity. Please refer to instructions [CALCRIM Nos. ]1400 and 1401.”
Also, the jury was instructed on its consideration of Vi’s testimony with CALCRIM No. 332, which stated: “A witness was allowed to testify as an expert and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence. [¶] An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the expert’s opinion.”
We presume the jury understood and followed the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) We find no error.
DISPOSITION
The judgment is reversed solely as to defendant’s conviction for street terrorism under section 186.22, subdivision (a). The judgment is otherwise affirmed in its entirety.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.