Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles County Super. Ct. No. TA085809, William R. Chidsey, Jr., Judge. Affirmed as modified and remanded with directions.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, J.
Tony A. Scott was convicted of one count of robbery, with a true finding on an allegation that he committed the offense for the benefit of a criminal street gang, after which he admitted he had served one prior prison term. (Pen. Code, §§ 211, 186.22, subd. (b)(1)(c), 667.5, subd. (b).) Scott was sentenced to state prison for a term of 13 years. He appeals, contending (I) trial of the gang allegation should have been bifurcated, (II) the gang expert should not have been permitted to preemptively "impeach” a defense witness, (III) insufficient evidence supports the gang enhancement, (IV) the expert should not have been permitted to opine about the ultimate issues regarding the gang enhancement, and (V) sentence on the prior prison term should have been stricken, not stayed. We agree with the sentencing issue, modify the judgment accordingly, reject Scott’s remaining claims, and affirm the judgment as modified.
FACTS
A.
Two Black men approached Jairo Selva as he stood by his car at the Imperial Courts housing project. At the same moment, Selva saw Isaias Martinez standing across the street, “watching on both sides of the street [and] looking.” As the two Black men reached Selva and started hitting and punching him, Scott rode up on his bicycle, joined the attack, and all three assailants swore at Selva and told him, “Give me your money.”
Selva tried to run off but Scott threw his bicycle at Selva, knocking him down, and the three assailants renewed their attack on Selva, punching, swearing, and demanding money. At that point, Selva “gave up” and Scott took Selva’s wallet from his pocket and removed about $300. One of the assailants took Selva’s cell phone, then all three men walked away. Selva called the police, then went back outside and saw Scott riding his bicycle up to Martinez who was still standing across the street.
Two police officers arrived. Selva spoke to them on the street, pointed to Martinez and Scott, and told the officers that Scott was “the Black guy who beat [him] up,” and that Martinez was “the Latino kid who was watching.” Scott and Martinez were detained. Selva confirmed that Scott was the one who had taken his money (he was 100 percent certain), and that Martinez was the one who had been watching (but not one of the assailants). Scott was arrested.
B.
At trial, Selva testified about the robbery, and one of the officers described the investigation at the scene. Selva again identified Scott, testifying that he was “a hundred percent sure” that Scott was the robber.
Officer Francis Coughlin testified as a gang expert, explaining that the “PJ Watts” gang claimed the territory around the Imperial Courts project; that the gang’s primary activities are narcotics and robberies; that one member had been convicted of robbery in 2003, another of possession of marijuana for sale in 2006; that Scott and Martinez were known and admitted members of the gang; that Scott’s gang moniker is “Tee Corleone,” and Martinez’s is “Little Tee Corleone” (indicating that Scott is Martinez’s gang “mentor”).
In response to a hypothetical question, Officer Coughlin opined that such a crime would have been committed for the benefit of the PJ Watts gang because (1) it would create “an atmosphere of fear and intimidation,” and (2) the money taken during the robbery could be used to purchase narcotics which could be sold for a profit that would be redistributed among the members of the gang so “they don’t have to work and [are] sustaining themselves.”
In defense, Scott presented Martinez’s testimony -- he is not a gang member, does not believe Scott is a gang member, and he just happened to be on the street when he heard a “commotion” and someone yelling in Spanish that “three African-Americans [had] jumped him,” after which he saw three men get into a green car and drive away. According to Martinez, he and Scott were mere bystanders. In rebuttal, one of the arresting officers testified that, when questioned on the night of the robbery, Martinez had admitted his affiliation with the gang and admitted that his moniker was “Little Tee Corleone.” Scott was convicted as noted at the outset.
DISCUSSION
I.
Scott contends the trial court should have granted his motion to bifurcate trial on the gang allegation and that its failure to bifurcate requires reversal of his robbery conviction. Assuming error, it was harmless by any standard.
A.
Before trial, Scott orally moved to bifurcate the gang allegation, contending it was essentially an Evidence Code section 352 issue and claiming the presentation of all gang testimony should be deferred until after the jury returned a verdict on the robbery count. He said the evidence of the robbery was slight, and that the gang evidence would invite the jury to speculate that he was involved in gang activity. The trial court found that the probative value of the gang expert’s testimony outweighed its prejudicial effect and denied the request for bifurcation.
B.
Assuming the gang evidence had nothing to do with whether Scott committed the robbery and that the gang allegation should have been bifurcated (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1051; cf. People v. Albarran (2007) 149 Cal.App.4th 214, 227), the gang evidence could not possibly have affected the jury’s verdict on the robbery count. First, the gang evidence was not so inflammatory that it “threaten[ed] to sway the jury to convict regardless of [Scott’s] actual guilt.” (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) Second, the evidence of Scott’s actual guilt was strong. Selva plainly saw Scott (the attack occurred under a street light), described the robbers to the police at the scene of the crime, identified Scott at the scene, and identified him again at trial (and Martinez’s testimony to the contrary was impeached by his admissions to the police). This was not a close case. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24; People v. Davis (1996) 42 Cal.App.4th 806, 813.)
II.
Scott contends the trial court erred in “permitting the gang expert to preemptively impeach [Martinez] by testifying that [Martinez] would not testify truthfully.” We disagree.
A.
On direct, the prosecutor asked Officer Coughlin, “In a case where you told us before where there’s a Tee Corleone and Little Tee Corleone, there’s generally a relationship there. What significance, if any, would it have to you if a juvenile member of a gang who had participated in a crime with an adult member of a gang that’s perhaps his mentor, his brother, or big homey, if the juvenile had participated in a crime with the older gang member and then came and testified in a way that was favorable to the older gang member’s case, what significance, if any, would you attach to that?”
Over a defense objection, Officer Coughlin answered, “Well, it’s not to say people don’t come to court to do the right thing, but the hypothetical you ha[ve] given me would show two things: that there is a loyalty to Tee Corleone, but it also helps his status in the gang [by] saying, ‘One of our gang members went to court, and I went to testify on his behalf,’ and that’s showing he has loyalty to the PJ Watts Crips.”
B.
Officer Coughlin described the relationship of an older gang member to a younger member, and explained how the younger member might act to win the approval of his mentor and the gang. The officer did not suggest that he knew Martinez’s intent or state of mind, or that Martinez would lie if he testified in this case. Although the prosecutor’s hypothetical would have been better stated without the use of the actual participants’ names, it was nonetheless a hypothetical and did not run afoul of the rules stated in the cases relied on by Scott. (E.g., People v. Zambrano (2004) 124 Cal.App.4th 228, 239-241; People v. Killebrew (2002) 103 Cal.App.4th 644, 651-659.)
III.
Scott contends there is insufficient evidence to support the gang enhancement. We disagree.
A.
The gang enhancement requires proof, by expert testimony or otherwise, that the robbery was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members. (Pen. Code, § 186.22, subd. (b)(1); People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) Proof that the defendant acted with the specific intent to further or assist in any criminal conduct by gang members -- that is, that the defendant acted in association with other gang members -- is sufficient to establish that the crime was committed for the benefit of the gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 1179-1183, 1197-1199.)
B.
Substantial evidence supports the gang allegations. (People v. Farnam (2002) 28 Cal.4th 107, 142-143 [we view the evidence in the light most favorable to the judgment]; People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [on credibility issues, we will not substitute our views for those of the jury].) The evidence establishes that Scott robbed Selva in the PJ Watts gang’s territory, that Scott and Martinez are members of the gang, that Scott is Martinez’s gang “mentor,” that Martinez acted as a lookout during the crime, that the primary activities of the gang are narcotics sales and robberies, and that this robbery would benefit the gang by creating an atmosphere of intimidation and providing funds for narcotics. No more was required. (People v. Maury (2003) 30 Cal.4th 342, 396.)
IV.
Scott contends the trial court erred in allowing Officer Coughlin to testify about “ultimate questions” that the jury should have decided without the expert’s opinion. We disagree.
Neither the questions nor the officer’s answers invaded the province of the jury. Officer Coughlin did not testify that he knew Scott’s intent (People v. Killebrew, supra, 103 Cal.App.4th at pp. 651-659; In re Frank S. (2006) 141 Cal.App.4th 1192, 1196-1199) or otherwise suggest that he knew what had happened with regard to this specific robbery. To the contrary, the officer testified about the gang generally and offered opinions in response to hypothetical questions. There was no error. (People v. Gardeley, supra, 14 Cal.4th at pp. 617-620.)
V.
Scott contends, the Attorney General concedes, and we agree that the one-year term imposed for the prior prison term enhancement should not have been stayed. (People v. Langston (2004) 33 Cal.4th 1237, 1241 [once a prior prison term allegation has been found true, the trial court may not stay the one-year enhancement, which is mandatory unless stricken].) The Attorney General contends we ought to remand to give the trial court the opportunity to impose or strike the enhancement. We disagree. The court’s comments at Scott’s sentencing -- that Scott’s sentence was sufficiently “significant and severe” without this further enhancement -- make it clear that it did not intend to impose the sentence (which is why it was stayed rather than imposed). The error is easily corrected by modifying the judgment.
DISPOSITION
The judgment is modified by striking the stayed one-year sentence imposed for the prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and, as modified, affirmed and remanded to the trial court with directions to issue a corrected abstract of judgment and forward it to the Department of Corrections.
We concur: MALLANO, Acting P.J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.