Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. BA329101, Charles E. Horan, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Antonio Reyes.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant Steven Berriozabal.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
INTRODUCTION
A jury convicted defendants Steven Berriozabal and Jorge Antonio Reyes of two counts of robbery (§ 211) with findings that they had committed the crimes to benefit a street gang (§ 186.22, subd. (b)(1)(C)) and that each of them had personally used a firearm (§ 12022.53, subd. (b)). In addition, the jury convicted both defendants of one count of an unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)). In a bench trial, the court found that each defendant had suffered a prior conviction as alleged pursuant to section 667.5, subdivision (b). The court sentenced each defendant to a term of 33 years and 8 months.
All undesignated statutory references are to the Penal Code.
In these appeals, defendants raise three contentions. The first is that the trial court erroneously denied their Wheeler motion which challenged the prosecutor’s peremptory excusal of one juror. The second is that the trial court’s denial of their request for a separate trial on the gang enhancement was error given the evidence ultimately presented at trial. The third is that the evidence is insufficient to support the jury’s findings sustaining the gang enhancement. We are not persuaded by any of defendants’ contentions and therefore affirm the judgments.
People v. Wheeler (1978) 22 Cal.3d 258.
STATEMENT OF FACTS
1. Overview
Defendants are members of the Avenues gang. Using a stolen car, they robbed two senior citizens in broad daylight in Avenues’ territory. They were apprehended several hours later in Avenues’ territory. The victims’ property was found on their persons and in the stolen car.
2. The Crimes
The robberies were committed at approximately 7:15 a.m. on Sunday, September 16, 2007. 66-year-old Felicismia Cruz, 73-year-old Porpiria Venadas, and 69-year-old Antonia Leis were walking to church. They stopped at the intersection of Yosemite Drive and La Roda Street to wait for the light to change. Defendants pulled to the curb in a black Honda (subsequently identified as having been stolen from Douglas Neil Cox) and blocked the women’s path. Defendants alighted from the car. Defendant Berriozabal (the car’s passenger) pointed a gun a Venadas’ head and took her bag (which included cash) after she initially resisted. Defendant Reyes (the car’s driver) pointed a gun at Cruz and took her bag. Cruz’s bag included her identification and approximately $149 in cash. Defendants reentered the stolen Honda and left. Venadas noted that the last part of the car’s license plate was “W548.” (3UKW548 was the complete license plate of the stolen car.)
The police were contacted. Los Angeles Police Officers Fernando Ochoa and Gabriel Aleman interviewed the victims shortly before 8:00 a.m. The police broadcast a crime report describing defendants and the stolen car. Between 8:00 a.m. and 9:00 a.m. that morning, Los Angeles Police Officer Salvador Loera saw the stolen Honda parked and unoccupied in the area of Drew Street and Estara Avenue, approximately two miles from the robberies. Officer Loera notified Officer Ochoa and began surveillance of the vehicle. Officers Ochoa and Aleman set up surveillance from a different vantage point. At approximately 10:00 a.m., defendants entered the Honda and left with defendant Berriozabal driving the stolen vehicle. Officers Ochoa and Aleman followed in a police car but soon defendant Berriozabal sped away, running through a stop sign. Officer Aleman activated the lights and sirens on his police vehicle. Defendant Berriozabal, in an effort to escape, drove recklessly. He ran through stop signs, drove on the wrong side of the road, and drove in circles before returning to Drew Street and Estara Avenue. There, he crashed into parked vehicles and was quickly apprehended. The circular pursuit lasted for two miles.
Defendant Reyes ran from the stolen Honda into an apartment complex on Drew Street. A resident of the building told the police that defendant Reyes had run into apartment 102. The police went to that unit and told everyone in it to exit. They did, including defendant Reyes who exited last. He walked separate and apart from the others who left in several groups. The police arrested defendant Reyes and found $90 on him.
In the stolen Honda (which had a punched ignition), the police found an unfired bullet and Venadas’ driver’s license and social security card. Defendant Berriozabal had $88 on him and a small metal case engraved “Ave’s” and “Nurse Week.” Inside of the case, the police found Cruz’s credit card and two of her identification cards as well as Venada’s social security card.
3. The Identification Evidence
The women identified defendants on three different occasions: during a photographic display, at the preliminary hearing, and at trial.
The day after the crimes, Detective Dan Sears showed two photographic displays to the three women. Cruz identified defendant Reyes as the man who had robbed her. Pursuant to Cruz’s direction, Detective Sears wrote on the display: “The person I circled was the driver. He got out of the car, pointed a gun at me, and took my purse.” Leis made a tentative identification of defendant Berriozabal in the photographic display as the man who had robbed Venadas (“I’m not sure but it looks like him”). Venadas was unable to identify either defendants from the photographs.
Detective Sears did not testify at trial.
The preliminary hearing was conducted on October 2, 2007, less than three weeks after commission of the crimes. Cruz again identified defendant Reyes as the man who had robbed her. Leis identified defendant Reyes as the driver of the Honda and the man who had robbed Cruz and defendant Berriozabal as the man who had robbed Venadas. Venadas tentatively identified both defendants.
At trial, Cruz confirmed that she had made the identifications at the preliminary hearing but when asked if she recognized anyone in court, she replied: “They are here, but I could not really point.” During trial, Leis first identified only defendant Reyes as one of the two robbers but later identified both defendants as committing the crimes. Venadas was unable to make any trial identification “with certainty.”
4. The Gang Evidence
Los Angeles Police Officer Thomas DeLuccia was assigned to the gang enforcement detail in the Northeast Division for four years. One of the gangs in that area is the Avenues. Before Officer DeLuccia began that assignment, he received 40 hours of training about gangs at the police academy. Once he began working as a patrol officer, he had contacts with “hundreds, if not thousands” of current and former gang members. He attended many community meetings where he spoke with local residents (including victims of Avenues’ crimes) about their concerns. He made numerous arrests for gang-initiated crimes and has qualified as a gang expert in “at least ten” superior court proceedings. Since leaving the gang enforcement detail, he has stayed current on gang issues by reviewing arrest reports of gang members, speaking with investigators and detectives currently assigned to the gang detail, reading bulletins about gangs published by law enforcement agencies, and working with prosecutors on upcoming trials.
Officer DeLuccia explained that the Avenues began as a gang in the 1940’s and presently has 400 to 600 members. The parties stipulated that the Avenues is a criminal street gang which has engaged in a pattern of criminal activity within the meaning of section 186.22. Officer DeLuccia, who has had contact with “hundreds” of Avenues members, including both defendants, testified that the Avenues commit car thefts, residential burglaries, “street robberies,” assaults with a deadly weapon and murders. In his opinion, both defendants are active members of the Avenues. Each has acknowledged their membership in the Avenues to him and other officers and each has Avenues tattoos all over his body.
Both the area in which the robberies occurred (the intersection of Yosemite Drive and La Roda Street) and the location of defendants’ apprehension by the police (Drew Street) are in Avenues’ territory. According to Officer DeLuccia, the Drew Street area is significant to the Avenues for several reasons. First, it is one of the Avenues’ largest locations for narcotics transactions. Second, the topography of the area—apartment buildings—gives the gang advantages in evading the police. The roofs offer “great vantage points” for Avenues members who watch for the police and communicate with each other by cell phone. Because there are “very limited ways in and out of that neighborhood,” Avenues members stationed on the roofs easily observe police entering the area. The area has “a fortress type of environment” because many of the buildings have steel doors and steel bars on the windows. Avenues’ graffiti is everywhere, much of it warning the residents and rival gangs that the Avenues “controls that neighborhood.” Many of the local residents are in the country unlawfully and “have an inherent distrust for the police.” Avenues members commit violent crimes “on a daily basis” and retaliate against residents who cooperate with the police. In light of all of these circumstances, people are “very reluctant” initially to assist the police in their investigations or to testify in court.
When asked hypothetically about the reaction of a resident of Drew Street were an Avenues member to run into his/her apartment, Officer DeLuccia responded: “The most common reaction would be just to let it happen.... It’s understood that you will give harbor, you will give refuge to these guys [Avenues members] if they are running from the police.” Once the police arrive on the scene, “the family members stick together and they may commonly go one direction, whereas the gang member who had invaded... will go a different direction.”
According to Officer DeLuccia, the locations of the crimes and defendants’ apprehension were significant. The intersection of Yosemite Drive and La Roda Street “would be a prime location for them to commit a crime because it’s still well within the Avenues gang area, so the reputation and the fear is still going to be there, but then they can flee the scene and head back to the safety of a more familiar environment such as Drew Street.” That defendants did not self-identify as Avenues’ members when they committed the robberies was not significant in terms of intimidating the local residents. “[T]he word gets out throughout the neighborhood. People know that a robbery was committed. They know the area the robbery was committed in. And the residents of that area, most of them are familiar with the gangs that frequent that area.”
Officer DeLuccia explained the significance of defendants’ attempt to flee by driving in circles before abandoning the stolen car in the Drew Street area as follows. “Number 1, they are trying to create some distance between themselves and the pursuing officers. Number 2, they are looking for a place to bail, which means they are looking for a place to get out of the car and run. It’s a little hard to do if the officers are right on top of you. So by constantly circling, you are looking to create that distance, and you are also looking for a good place to bail. [¶] Now, they know this area. They are familiar with this area. So they know the escape routes. They know the places to hide. They know where the friendly pads or friendly locations are. [¶] There’s also the potential that they are using their cell phones to communicate with people in the neighborhood that – let them know what’s going on and let them know we’re going to need a place to hide in a minute here. That’s why you will see pursuits go in a circuitous route over and over again.”
Officer DeLuccia testified that robberies benefit the Avenues in several ways. “Number 1, financially if [Avenues members] rob [the victims] and [they] obtain property and money, or anything that [they] can sell on the street and get money for it, it allows the gangs to purchase narcotics. It allows them to purchase flashy clothes. It allows them to purchase more guns. And it brings revenue into the gang. [¶] Then there’s the fear factor. By robbing people in broad daylight, [they are] creating an atmosphere of intimidation, and an atmosphere of fear. That reputation or that act will help bolster the gang’s reputation within the community. And also with other gangs as well, rival gangs.” Officer DeLuccia explained that the fact that defendants Berriozabal and Reyes were apprehended with, respectively, $88 and $90 was significant because “providing that that money was taken in a robbery, it’s almost an even split, which would make sense if you have two gang members committing the same crime, they are going to split the loot or the bounty pretty much equally.”
The prosecutor posed a hypothetical question, based upon the trial evidence, asking whether the robberies were committed for the benefit of the Avenues. Officer DeLuccia replied that in his expert opinion they were. He explained: “[T]he fact that they had a vehicle that was not registered to them, the fact that they were in known Avenues gang territory, the fact that they were armed, and that they committed what we call a street robbery[,] was done solely for the purpose and the benefit of enhancing the street gang.” Further, he believed that the robberies were committed in association with the Avenues because defendants had Avenues tattoos and possessed an item (the metal case) with Avenues markings.
5. The Defense Case
The defense presented no evidence. The theory of the defense case, as initially set forth in defense counsel’s opening statements and elaborated upon in closing arguments, was that a reasonable doubt existed as to whether defendants were the two men who committed the robberies.
DISCUSSION
A. THE WHEELER MOTION
Defendants first contend that the trial court improperly denied their Wheeler motion. We find that the determinative issue on appeal is whether the trial court properly found that no prima facie case of discrimination had been made. However, in failing to offer any argument on that point, defendants have forfeited their claim of error.
1. Factual Background
The defense made a Wheeler motion after the prosecutor excused Juror No. 0837. As is relevant to defendants’ appellate contention, Juror No. 0837’s responses during voir dire were typical of those made by the other jurors with two exceptions. The first exception was his response to questions from the trial judge about gangs. Juror No. 0837 indicated that he knew about gangs from individuals with whom he had attended school because “most” of them were members of the Crips or Bloods. The second exception was his answers to questions from the prosecutor about taking, as a prospective juror, the oath to answer all questions truthfully because, as will be set forth below, the prosecutor did not believe his answers. First, the prosecutor asked: “When you were back in the audience and everyone raised their right hand to take that oath, did you take that oath?” The juror responded he had. The prosecutor then asked: “Did your lips move?” He replied: “Yes, they did.” (Neither defense counsel asked Juror No. 0837 any questions.)
After the prosecutor exercised a peremptory challenge against Juror No. 0837, the following occurred at side bar:
“MS. KIM [counsel for defendant Reyes]: Your Honor, I want to make a Wheeler motion at this point. As far as I’m aware, the juror that was just excused is the only Black male in our panel, and from his answers – his answers appeared to be answers that almost any juror would make, or any juror – they didn’t seem out of order.
“THE COURT: Perhaps with one exception, that most of his friends were gang members. Other than that, I would tend to agree his answers were similar in large respects to other jurors.
“Anything else
“MS. KIM: No.
“THE COURT: -- other than what you’ve noted?
“MS. KIM: No.
“MR. KRELL [counsel for defendant Berriozabal]: Join in that motion.
“THE COURT: Do you wish to be heard as to whether a prima facie case has been made?
“MS. POTT [the prosecutor]: Your Honor, I do not believe that a prima facie case has been made.
“THE COURT: That being said, in the event an appellate court disagrees on my prima facie case, I will allow you to make any record you wish.
“MS. POTT: I do wish, Your Honor.
“THE COURT: I will allow you to respond.
“MS. POTT: My attention was first drawn to this juror when he entered the courtroom. Deputy Williams had to take him aside because he was wearing some sort of durag, not some sort of nylon wrap on his head. Deputy Williams took him out into the hallway and the juror returned without that durag. He was wearing two diamond stud[s], some sort of rhinestone stud, rather large earrings, as well.
“I was specifically watching him for his reaction when the clerk actually gave the oath to the jurors. I did not see his lips move when the oath was administered. I did, in fact, ask him about that when he was on the – in the jury box. His answer to me was that yes, he did take the oath, yes, his lips did move, and I personally did not observe that. And I was specifically watching for it, especially given the interaction that Deputy Williams had had with this prospective juror when he first walked in.
“I noticed that when he was walking to the jury box he was walking with a significant swagger. When he walked back in after removing the durag from his head, he was also walking with a significant swagger, almost one of those gangster
“THE COURT: Anything further? Anything else?
“MS. POTT: No, Your Honor.
“THE COURT: Any comments, either side?
“MS. KIM: No, Your Honor.
“MR. KRELL: No, Your Honor.
“THE COURT: Court will simply indicate what I have indicated. There is no prima facie showing. Your record is now made and I don’t, frankly, find anything you have said to be beyond the pale or to be unbelievable to the court.” (Italics added.)
2. Discussion
“When a defendant moves at trial to challenge the prosecution’s use of peremptory strikes, the following procedures and standards apply. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful racial discrimination.” [Citations.]’” (People v. Lewis (2008) 43 Cal.4th 415, 469, quoting from Johnson v. California (2005) 545 U.S. 162, 168.)
In this appeal, defendants contend: “Here, although the court did not find a prima facie case [of discriminatory purpose], because the prosecution offered a group-bias-neutral explanation for the challenge [of Juror No. 0837] and the trial court ruled on the motion, the issue of whether the defendant made a prima facie case is moot; the reviewing court must now examine whether the excusal was proper” and determine whether “the trial court’s ruling on purposeful racial discrimination is [supported by] substantial evidence.” On that last point, defendants claim that the “prosecutor’s reasons for excusing prospective juror No. 0837 was not genuine but pretextual.”
The Attorney General disagrees with defendants’ characterization of the record. He asserts that “the only ruling made by the trial court [was its] express finding of no prima facie case.” The Attorney General therefore urges that the determinative issue on this appeal is whether that ruling was correct. We agree with the Attorney General.
Here, the trial judge did not call upon the prosecutor to explain her challenge. Instead, he first asked her if she wished to be heard about whether a prima facie case had even been established. She replied that she did not believe that case had been made. The judge responded: “That being said, in the event an appellate court disagrees on my prima facie case [ruling], I will allow you to make any record you wish.” It was at that point that the prosecutor explained her concerns about Juror No. 0837. After she finished, both defense counsel declined to make any further comments. When the judge then denied the motion, he did so on the explicit basis that the defense had not made a prima facie showing of group discrimination, not because the prosecutor had rebutted such a showing. He explained: “Court will simply indicate what I have indicated. There is no prima facie showing.” (Italics added.)
Defendants’ arguments that the court “asked the prosecutor to state her reasons for dismissing” Juror No. 0837 or that it “considered and relied on the prosecutor’s reasons for dismissing the only Black prospective juror” are not persuasive. Read in context, the judge’s statement to the prosecutor “That being said, in the event an appellate court disagrees on my prima facie case, I will allow you to make any record you wish” constituted an implicit ruling that the defense had failed to establish a prima facie case and an invitation to the prosecutor to articulate her “justifications [for excusing Juror No. 0837] for purposes of completing the record in case the court on appeal disagreed with its conclusion.” (People v. Turner (1994) 8 Cal.4th 137, 167.) The trial court’s remark at the end of the colloquy—“Court will simply indicate what I have indicated. There is no prima facie showing”—further supports the conclusion that the trial court had initially (albeit implicitly) found no prima facie case. (Italics added; see also People v. Welch (1999) 20 Cal.4th 701, 746 [When “the trial court states that it does not believe a prima facie case has been made, and then invites the prosecution to justify its challenges for purposes of completing the record on appeal, the question whether a prima facie cases has been made is not mooted, nor is a finding of a prima facie showing implied”] and People v. Bittaker (1989) 48 Cal.3d 1046, 1092.)
Defendants’ reliance upon Hernandez v. New York (1991) 500 U.S. 352 (Hernandez) to support a contrary conclusion is misplaced. There, defense counsel objected that the prosecutor had improperly used peremptory challenges against several prospective Latino jurors. (Id. at p. 356.) The prosecutor did not wait for the trial court to rule whether the defense had made a prima facie case, but, instead volunteered his reasons for striking the jurors. The trial court thereafter denied the defense motion, finding no purposeful discrimination. (Id. at pp. 356-357.) In reviewing the procedural development of the case, the United States Supreme Court wrote: “The prosecutor defended his use of peremptory strikes without any prompting or inquiry from the trial court. As a result, the trial court had no occasion to rule that [the defense] had or had not made a prima facie showing of intentional discrimination. This departure from the normal course of proceeding need not concern us.... Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” (Id. at p. 359.) Here, in contrast, the trial court twice ruled (first implicitly, second explicitly) that the defense had failed to establish a prima facie case. Consequently, Hernandez does not support defendants’ claim that whether they established a prima facie case of discrimination is a moot question for purposes of this appeal.
In sum, “[u]nder these circumstances, the issue of whether a prima facie case has been established is not moot, even though subsequent inquiry into the prosecutor’s reasons occurs.” (People v. Turner, supra, 8 Cal.4th at p. 167.) Consequently, we must first determine whether the trial court properly ruled that no prima facie case had been made. If we uphold the trial court’s finding on that issue, there is no need to review the adequacy of the prosecutor’s justification(s) for the contested peremptory challenge. (Ibid.) Here, however, defendants have not claimed, either in their opening or reply briefs, that the trial court’s prima facie ruling was incorrect. Whether viewed as a forfeiture of any claim of error (People v. Stanley (1995) 10 Cal.4th 764, 793) or a concession that the trial court did not err, the end result is the same: that ruling stands. Because, as explained above, that ruling was the basis of the trial court’s denial of the Wheeler motion, defendants’ argument that prosecutor’s reasons for challenging the juror were pretextual need not be addressed.
B. DENIAL OF MOTION FOR SEPARATE TRIAL ON THE GANG ENHANCEMENT
Defendants next contend that their due process rights to a fair trial were violated because the trial court denied their motion for a separate trial on the gang enhancement. Significantly, defendants concede that the trial court’s pretrial denial of their bifurcation motion was not an abuse of discretion. Consequently, their appellate contention focuses solely on Officer’s DeLuccia’s testimony about the Avenues’ intimidation of the residents of Drew Street to support their claim that this evidence, and this evidence alone, resulted in a violation of their due process right to a fair trial. We are not persuaded for three reasons. The first is that defendants failed to object during trial to this portion of Officer’s DeLuccia’s testimony. The second is that the evidence would have been relevant even if the case had not included a section 186.22 allegation. The third is that any error in admitting the evidence was not prejudicial.
1. Factual Background
In February 2008, defendant Berriozabal filed a motion for a bifurcated trial. The motion relied upon the testimony of the prosecution’s gang expert (Los Angeles Police Officer Steven Aguilar) at the preliminary hearing. His testimony was exclusively directed to establishing probable cause for the gang enhancement allegations and consequently made no reference to the Avenues’ relationship to Drew Street. The defense argued that “to allow the prosecution to introduce the gang evidence at [this] trial would be unfair because not only is that evidence unnecessary to prove any issue that is pertinent to his alleged guilt of the charged offenses, but it would also imply to the jury that [he] is guilty of those offenses merely because of his alleged gang membership.... [¶] [T]he introduction of gang evidence at trial would be so extraordinarily prejudicial, and of so little relevance to guilt, that it would threaten ‘to sway the jury to convict regardless of [his] actual guilt.’” Defendant Reyes subsequently joined in the motion.
Officer Aguilar did not testify at trial. Instead, as set forth earlier, Officer DeLuccia testified as the prosecution’s gang expert.
The court heard the motion the day before trial commenced. The prosecutor gave several reasons why the gang evidence was relevant not just on the issue of the section 186.22 enhancement but also on the issue of guilt or innocence. After hearing argument from both defense counsel and reviewing the transcript of the preliminary hearing, the trial court denied the motion. It explained: “It appears to me that while there is certainly always the potential for prejudice in a case wherein there’s a gang allegation,... I do not believe this is an unusual case or a case where the gang evidence is unduly prejudicial or extraordinarily so. It seems rather straightforward evidence of gang membership, coupled with an expert opinion. [¶] For that reason, I see no need to exercise my discretion to sever the gang enhance[ment] allegation from the evidence. [¶] There is some relevance extrinsic to the [section] 186.22(b)(1) allegation. There is relevance of the gang evidence on other issues, as I noted [during argument]. So I will deny that motion.
Neither defense counsel revisited the issue during trial. In particular, when Officer DeLuccia testified as a gang expert, the defense raised no objection that his testimony about the Avenues’ relationship to Drew Street was irrelevant or unduly prejudicial. Further, during trial, the trial judge noted that, in hindsight, his denial of the pretrial bifurcation motion was proper because the gang evidence would have, in any event, been admissible to establish guilt of the charged offenses. And during a discussion of jury instructions, he reiterated that point.
The trial court stated: “For the record, the court notes the following: although none of the attorneys pointed it out, I’m sure due to simply oversight, you know, given some of the details of the case, but in terms of the motion to bifurcate the gang allegation, it was never brought to the court’s attention that property of the victim was found in a metal case bearing ‘Avenues.’ I say that for the obvious reason that the bifurcation would have been obviously a meaningless act given the fact that that evidence is absolutely admissible in the trial of the charges.”
The trial court explained that because it believed the jury could consider the gang evidence not only on the issue of the section 186.22 enhancement but also on the issue of guilt or innocence, it would (and did) instruct the jury as follows.
2. Discussion
People v. Hernandez (2004) 33 Cal.4th 1040 (Hernandez) sets forth the standards to be used when a defendant moves prior to trial to bifurcate the gang enhancement. The trial court has the discretion to grant that request but because “the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense[,]... less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.” (Id. at p. 1048.) Hernandez explained that “evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like–can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]” (Id. at pp. 1049-1050.) But “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself—for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged—a court may still deny bifurcation.... [¶]... [T]he trial court’s discretion to deny bifurcation of a charged gang enhancement is... broader than its discretion to admit gang evidence when the gang enhancement is not charged. [Citation.]” (Id. at p. 1050, italics added.) In moving for bifurcation, the defense must “‘clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.]” (Id. at p. 1051.)
In this case, the trial court did grant the defense motions to bifurcate trial on the prior conviction allegations.
Here, defendants concede that given the record that existed when the bifurcation motion was made, the trial court did not abuse its discretion in denying the motion. (See People v. Catlin (2001) 26 Cal.4th 81, 110 [appellate review of denial of a pretrial motion to sever counts is framed by the showing made when the motion is heard].) Nonetheless, defendants urge that the unitary proceeding resulted in a denial of due process. (See People v. Mendoza (2000) 24 Cal.4th 130, 162 [“Even if a trial court’s severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the ‘defendant shows that joinder actually resulted in “gross unfairness” amounting to a denial of due process’”].)
Defendants argue that Officer DeLuccia’s testimony about Drew Street “had no bearing on any material issue regarding the charged crimes” and “created a danger that the jury convicted [them] in order to get... gangster[s] with an increasing propensity for violence off the streets, to prevent [them] from retaliating against the victims or their families for ratting out the gang, and to punish [them] for the terrorist activities of the Drew Street clique [of the Avenues gang].” They characterize this portion of Officer DeLuccia’s testimony (they do not challenge any other part of his testimony) as “absurdly irrelevant and inflammatory” and “extremely prejudicial” whose sole function “was to make up for the prosecutor’s lack of evidence connecting [them] to the robberies.” This argument is not persuasive.
To begin, neither defense counsel objected to this portion of Officer DeLuccia’s testimony on the basis of lack of relevancy or undue prejudice although they did raise other objections to his testimony such as calling for speculation, lack of foundation, calling for a narrative and compound question. The failure to object on the grounds now raised on appeal constitutes a forfeiture of their claim. (Evid. Code, § 353, subd. (a).) The reason for this result is manifest: “‘[A] specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.’” (People v. Partida (2005) 37 Cal.4th 428, 434.) Because the defense raised no Evidence Code section 352 objection to this portion of Officer DeLuccia’s testimony, the prosecutor was unable to explain the relevancy of the evidence or cure any defect in its presentation and the trial court was denied the opportunity to make a fully informed ruling. As a result, the claim that the admission of the evidence constitutes prejudicial error has been forfeited. A contrary conclusion would permit defendants to remain silent in the trial court and gamble on securing a reversal on appeal.
To a certain extent, defendants suggest that the failure to object is excused “possibly because prior experience and the court’s ruling on the [pretrial] motion to bifurcate told [counsel] that resistance was futile.” The argument is not persuasive. The issue of the relationship between the Avenues and Drew Street was not raised or addressed in the earlier motion. Consequently, defendants’ after-the-fact rationalization for failing to object is unsupported speculation.
Furthermore, the two cases defendants cite for the proposition that “a constitutional due process question can properly be raised for the first time on appeal” are distinguishable. Neither case involved introduction of evidence which on appeal the defense asserted was more prejudicial than probative. People v. Norwood (1972) 26 Cal.App.3d 148, 152-153 addressed whether the corpus delecti of two charges had been established and People v. Allen (1974) 41 Cal.App.3d 196, 201-202, including footnote 1, involved the then-novel legal question of whether compelling a defendant to give a hair sample violated the privilege against self-incrimination. In sum, the failure to object below constitutes a forfeiture of the claim.
In any event, the evidence about Drew Street would have been admissible even had the prosecution not alleged the section 186.22 enhancement. As Hernandez, supra, 33 Cal.4th 1040 explained: “[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory,... beliefs and practices, criminal enterprises,... and the like -- can help prove identity, motive, modus operandi, specific intent,... or other issues pertinent to guilt of the charged crime.” (Id. at p. 1049, italics added.) Given that defense counsel, from the outset of the trial, had challenged the prosecution to prove identity beyond a reasonable doubt, evidence of defendants’ membership in Avenues, including Avenues’ control of the Drew Street area, would have been admissible to identify them as the robbers. The evidence established that two gang members, acting in concert, committed the robberies in a stolen car and then fled two miles to a neighborhood known as a safe haven for their gang to avoid detection. Further, upon being found by the police two hours after commission of the crimes, they attempted to elude apprehension by staying in the Drew Street area because it was an area in which they could seek support and assistance not only from fellow gang members but also from local residents who would be too intimidated to refuse to help them. Hence, even in the absence of the gang enhancement, evidence about the Avenues’ control of Drew Street (in conjunction with other gang evidence including the recovery from defendant Berriozabal of the metal case engraved “Ave’s” which contained some of the victims’ property) would have been admissible at trial to establish defendants’ identities as the robbers.
Lastly, any error which may have occurred (and we find no error) from the admission of Officer DeLuccia’s testimony about Drew Street was clearly non-prejudicial.
First, the jury instruction about the limited uses to which the jury could put the gang evidence (see fn. 6, ante) specifically stated: “This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he/she has a disposition to commit crimes.” The jury is presumed to have followed this instruction. (People v. Adcox (1988) 47 Cal.3d 207, 253.)
Second, the prosecutor made no use of Officer DeLuccia’s testimony about Drew Street in her closing arguments. Her references to Drew Street were innocuous and made in other contexts.
Some of the prosecutor’s references to Drew Street were made in explaining the operative facts. For instance, after placing defendants at the scene of the crime, she stated: “[A]nd then approximately two and a half, three hours later, they were over on Drew Street, in their gang neighborhood.” Other references were made in the context of explaining the car chase (“defendant Berriozabal was driving away from Drew Street” and defendant Reyes is “bailing out as soon as the black car crashes in front of 3351 Drew Street”).
Lastly, the evidence of each defendant’s guilt was overwhelming.
In regard to defendant Reyes, Cruz twice identified him as the man who robbed her: first in a photographic display shown to her one day after the crimes and then at the preliminary hearing conducted less than three weeks later. Similarly, Leis twice identified defendant Reyes. First, at the preliminary hearing where she testified to his specific role: he drove the Honda and robbed Cruz. Second, at trial where she identified defendant Reyes as one of the robbers. Further, approximately two hours after the crimes occurred, the police saw defendant Reyes in the stolen car the robbers had used. And when the police were about to apprehend him, defendant Reyes fled into a nearby apartment building.
As for defendant Berriozabal, Leis identified him twice. At the preliminary hearing, she testified that he was the man who had robbed Venadas; at trial, she identified him as one of the robbers. Further, when spotted by the police in the getaway car used by the robbers, defendant Berriozabal evidenced consciousness of guilt by trying evade capture. And when ultimately apprehended, defendant Berriozabal had some of the victims’ property on his person.
In light of all the circumstances set forth above, we must reject defendants’ argument that Officer DeLuccia’s testimony about Drew Street “probably caused [them] to be convicted in spite of any doubts the jury may have had as to [their] involvement in the robberies, in order to get... violent, scary gangster[s] off the streets and to punish [them] for the terrorist activities of [their] gang.” Stated another way, it is not reasonably probable that a result more favorable to either defendant (acquittal of the robbery charges) would have occurred in the absence of Officer DeLuccia’s testimony about the Avenues’ influence in the Drew Street area. (People v. Watson (1956) 46 Cal.2d 818, 836.)
C. SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE JURY’S FINDING ON THE GANG ENHANCEMENT
1. Introduction
Defendants contend that there is insufficient evidence to sustain the jury’s findings on the gang enhancement. We are not persuaded.
Defendants do not contest that there is substantial evidence to sustain the verdicts that they committed the robberies and unlawful taking of a vehicle.
Section 186.22, subdivision (b)(1) provides an enhanced sentence for any 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.” Our role in evaluating a sufficiency of the evidence attack on a gang finding is guided by the deferential substantial evidence standard of review. We must view the record in the light most favorable to the jury’s true finding and draw all inferences from the evidence which support the finding. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.)
Defendants do not contest that the Avenues is a criminal street gang or their membership in the gang. Instead, they argue that the evidence was insufficient to establish that the robberies were committed in association with the Avenues; that the evidence “fell short of indicating the robberies were committed to benefit any gang”; and that the evidence is insufficient to establish that they acted with the required specific intent. We examine each argument separately and conclude none has merit.
2. The Crimes Were Committed in Association with the Avenues
As to whether the crimes were committed in association with the Avenues, the evidence established the following. Defendants are self-identified members of the Avenues. They committed the robberies in their gang’s territory. They arrived together at the crime scene in a stolen car. Once there, they act in a coordinated manner. Each one approached one of the victims with a gun and took her purse. Once they had taken the victims’ purses, they reentered the stolen car and drove off together to an Avenues controlled neighborhood (Drew Street). When they realized the police had seen them, together they attempted to elude apprehension through circular driving in the area controlled by their gang. After defendant Berriozabal crashed the stolen Honda, defendant Reyes ran into an apartment house and took refugee in a manner consistent with Avenues’ protocol to avoid apprehension. Further, cash was taken from the victims and almost equal amounts ($90 and $88) were found on each defendant, suggesting an equal split between gang members. Lastly, defendant Berriozabal had a metal case with the etching “Ave’s” in which some of the victims’ property was found. This was more than sufficient to prove that the crimes were committed in association with the Avenues. Consequently, we reject defendants’ argument that there was “no evidence that the pair were not on a ‘frolic and detour’ having nothing to do with the gang.” “Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this.” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Instead, all of the evidence (and the reasonable inferences to be drawn therefrom) pointed to the contrary conclusion. “Thus, the jury could reasonably infer the requisite association from the very fact that defendant[s] committed the charged crimes in association with fellow gang members.” (Ibid.)
On appeal, defendants seek to negate the significance of the metal case engraved with “Ave’s” by relying upon evidence not included in the record on appeal. Citing an internet website, they argue: “There is no evidence, however, that appellants engraved ‘AVES’ on this item. ‘Nurse Week’ is an online publication which mentions Amigos Volunteers in Education and Services (AVES). [Internet citation omitted.] The card case thus probably was manufactured with this engraving.” Needless to say, we cannot and do not consider this evidence because it was not presented to the trier of fact.
3. The Crimes Were Committed for the Benefit of the Avenues
Substantial evidence supports the findings that the crimes were committed for the benefit of the Avenues. Officer DeLuccia’s expert testimony explained that the crimes inured to the gang’s benefit in several ways. First, the stolen property could be converted into cash and, along with the cash taken from the victims, be used to purchase guns and narcotics for the gang. Second, the crimes were committed in a manner to benefit the gang: to intimidate local residents and rival gangs and to gain respect. This constitutes more than substantial evidence from which a reasonable jury could find the gang enhancements to be true.
The trial court essentially reached the same conclusion at the sentencing hearing in responding to the defense request that it strike the section 186.22 allegation. The trial court explained:
The defense arguments to the contrary are not persuasive. First, defendants urge that their failures to shout gang slogans, throw gang signs, or wear gang colors while committing the robberies precludes a finding that the crimes were committed for the benefit of the Avenues. We disagree. As Officer DeLuccia explained, these omissions were not significant given that the robberies occurred in Avenues’ territory during broad daylight. The community would learn soon enough that Avenues members had committed the crimes.
In a similar vein, we reject defendants’ argument that the jury’s findings lack evidentiary support because “no one from the community testified that he or she was intimidated by the crime or knew that the Avenues gang was behind it[.] There was no indication that the defendants ever said or did anything to indicate to the victims or other witnesses that they were gang members, or that they attempted to instill fear in any way beyond accomplishing the robbery itself. The victims did not testify that they knew the defendants were gang members, or that they knew what their tattoos indicate.” Contrary to what defendants suggest, there is no requirement that the People produce such specific testimony from either crime victims or local residents. Instead, whether the community would recognize the Avenues’ involvement in the crimes and be intimidated is a matter that can be covered, as it was here, by expert testimony.
This brings us to the crux of defendants’ argument: the sufficiency of Officer DeLuccia’s expert testimony. Defendants urge that his expert opinion “was nothing but speculation without facts.” We disagree. Officer DeLuccia is a well-seasoned gang expert. He received extensive training about gangs, performed a four-year assignment with the gang enforcement detail in the area in which the Avenues were active, had contacts with thousands of past and current gang members, and had testified more than 10 times as a gang expert.
To avoid this conclusion, defendants rely upon a series of cases from the Fifth Appellate District. These decisions concluded, based upon the specific facts presented, that a police officer’s expert testimony did not constitute substantial evidence to support the finding that a crime had been committed for the benefit of a street gang. (People v. Ramon (2009) 175 Cal.App.4th 843; In re Frank S. (2006) 141 Cal.App.4th 1192; and People v. Killebrew (2002) 103 Cal.App.4th 644; see also People v. Ochoa (Nov. 20, 2009, E045756) ___Cal.App.4th___.) In People v. Ramon, supra, 175 Cal.App.4th 843, the reviewing court synthesized this line of authority as holding that “the officer’s opinion was nothing more than his view of how the case should have been decided and was inadmissible” because “[t]here were no facts from which the expert could discern whether [the gang members] were acting on their own behalf... or were acting on behalf of [their gang].” (Id. at pp. 850 & 851.) “The People’s expert simply informed the jury of how he felt the case should be resolved.... While it is possible the [gang members] were acting for the benefit of the gang, a mere possibility is nothing more than speculation. Speculation is not substantial evidence.” (Id. at p. 851.) We are not persuaded that these cases apply to the matter under review.
For one thing, the cases fail to give sufficient consideration to a well-settled body of law. As we noted in People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, footnote 4: “A gang expert may render an opinion that facts assumed to be true in a hypothetical question present a ‘classic’ example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence.” Consequently, it was perfectly permissible for Officer DeLuccia, an expert on gang culture and the Avenues, to explain how particular criminal conduct could enhance the gang’s reputation or benefit the gang. (People v. Ward (2005) 36 Cal.4th 186, 209-210; People v. Gardeley (1996) 14 Cal.4th 605, 618.) Our Supreme Court cogently observed in discussing People v. Killebrew, supra, 103 Cal.App.4th 644: “Obviously, there 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 though the use of hypothetical questions regarding hypothetical persons.” (People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3.) Here, contrary to defendants’ suggestion, Officer DeLuccia did not testify that defendants “possessed a specific intent[,]... a key issue reserved exclusively for the jury.” Instead, the officer properly answer hypothetical questions.
Further, Officer DeLuccia’s expert testimony was rooted in evidence presented at trial. Defendants were active members of the Avenues. The Avenues commit “street robberies.” The two robberies were brazenly committed in Avenues territory in broad daylight. Defendants arrived at the crime scene in a stolen car. Each defendant was armed with a gun. Defendants, in a coordinated manner, robbed two extremely vulnerable women of purses containing cash, identification cards, and a credit card. Defendants fled in the stolen car to hide in a neighborhood which is an Avenues’ stronghold (the Drew Street area). When spotted by the police, defendants tried to lose their pursuers by evasive driving within the Avenues’ stronghold. After the police apprehended them, defendant Berriozabal was found in possession of a metal case engraved “Ave’s” containing some of the victims’ property. In addition, each defendant had essentially the same amount of cash on him, suggesting an equal split of the fruits of the robberies. Taken together, these facts amply support Officer DeLuccia’s opinion that commission of the robberies benefitted the Avenues.
In sum, in light of the well-settled principle that it is for the jury to determine the weight to be accorded an expert’s testimony (see People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931), we decline defendants’ implied invitation to reweigh Officer DeLuccia’s testimony. “The reviewing court does not perform the function of reweighing the evidence; instead, the court must draw all inferences in support of the verdict that can reasonably be deduced from the evidence.” (People v. Culver (1973) 10 Cal.3d 542, 548.)
4. Defendants Acted With the Required Specific Intent
Lastly, defendants urge that the evidence is insufficient to establish that they acted with the required “specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) They cite Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia) which held that a finding of a gang enhancement was unsupported because there was no evidence that the defendant committed the crime (robbery) “with the specific purpose of furthering other gang criminal activity” and there was “nothing inherent in the robbery that would indicate that it furthers some other crime.” (Id. at p. 1103, italics added.) Based upon Garcia, defendants argue “nothing occurred from which the jury could reasonably conclude that the crimes were not random street robberies for personal gain, no matter what gloss the expert [Officer DeLuccia] put upon the simple facts.”
We rejected a similar argument in People v. Romero (2006) 140 Cal.App.4th 15. We held that the defendant’s specific intent to promote, further and assist in criminal conduct is established if the defendant intended to promote, further and assist the charged offense(s). (Id. at p. 19; accord, People v. Hill (2006) 142 Cal.App.4th 770, 774 [“Garcia... misinterprets California law.... [¶] There is no requirement in section 186.22, subdivision (b), that the defendant’s intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits”].)
Briceno v. Scribner (9th. Cir. 2009) 555 F.3d 1069 acknowledged that two California appellate courts (People v. Romero, supra, and People v. Hill, supra) had rejected Garcia’s interpretation of California law but nonetheless reaffirmed Garcia’s analysis. (Id. at pp. 1079-1083, but see conc. & dis. opn. of Wardlaw, J. at pp. 1083-1088.)
Here, substantial evidence of defendants’ specific intent was offered. “Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)
DISPOSITION
The judgments are affirmed.
We concur: MANELLA, J., SUZUKAWA, J.
“Evidence has been introduced for the purpose of showing criminal street gang activities, and of criminal acts by gang members, other than the crimes for which defendants are on trial.
“This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he/she has a disposition to commit crimes. It may be considered by you for the limited purpose of determining if it tends to show that the crime or crimes charged were 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 any criminal conduct by gang members. Such evidence may also be considered on the issue of whether the defendant had a motive to commit the crimes charged in counts I and II, and may also be considered on the issue of whether the defendants were in possession of property located in the metal card holder.
“For the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in the case.
“You are not permitted to consider such evidence for any other purpose.”
“That’s what was pretty interesting about the gang allegation. Not every crime committed by gang members qualifies as a 186 crime, and frankly, most robberies probably do not. Robbers go rob. The fact that they are in a gang does not necessarily turn that into a 186 type situation. But what really struck me here was that within literally minutes, I mean it couldn’t have been too long after the matter is concluded, the property of the elderly victim, or one of them, is in Mr. Berriozabal’s pocket, I believe it was in a card case, sort of a chrome or silver card case it looked to me, business card case, that has been etched with the gang logo, which is really interesting in terms of the 186, you know, supportive evidence for that gang allegation. You don’t usually see evidence that strong, seems to me, in a robbery case when the D.A. is trying to get that enhancing allegation. It does I think speak to the mind-set of the defendants, which is really what it’s talking about. Did they, in their mind, believe that they were carrying this out to further the gang and so forth, with the requisite intent, as the jury found, and it seems pretty clear that the jury got it right.
“I can’t think of a good reason, frankly, to strike the allegation.”